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Wesbury United Methodist Community v. Workers' Compensation Appeal Board9/29/2005
ther treatment and that she could work full-time at a medium duty level as a nursing aide.
On February 10, 2003, the WCJ filed a decision disposing of the petitions in which she made the following relevant findings of fact:
11. Based upon a review of the foregoing as well as all evidence of record, it is found that the claimant has met her burden of proof in the reinstatement petition.
a. The claimant is found to be a very credible witness. The claimant has testified at hearings on several occasions in a straightforward and candid manner. This WCJ accepts the testimony of the claimant that she has continued to have back complaints. Furthermore it is found that the claimant credibly testified that she was willing to return to work after her surgery. The employer has never offered any regular or modified work following her surgery, despite the claimant's interest in returning to work for the employer. It is noted that the claimant worked for [Employer] since 1988.
b. The opinions of Dr. Welch are accepted as more credible than the opinions of Dr. Agnew. It is noted that Dr. Welch actually performed claimant's surgery. His opinions that the surgery was related to her work injury are accepted as more credible than the opinions of Dr. Agnew. Furthermore although Dr. Welch released the claimant to return to work, it is noted that work was never made available to the claimant.
c. Dr. Welch's opinion that she has not made 100% recovery is accepted as credible and corroborates claimant's testimony that she continues to have back complaints. It is further noted that claimant's MRI following the back surgery shows scar tissue at the L4-5 level. The claimant has not fully recovered from back surgery and her work injury of December 17, 1997.
d. Although the claimant was released to return to work after her initial surgery, the employer did not offer her employment.
12. The employer has not met its burden of proof in the termination petition. The opinions of Dr. Welch are accepted as more credible than the opinions of Dr. Agnew. It is further noted that the claimant had back surgery at L4-5 and has not fully recovered from this surgery. The claimant credibly testified that she continues to have back complaints.
WCJ Decision at 4.
Based on the foregoing, the WCJ concluded that: (1) Claimant had met her burden of proof supporting the reinstatement of compensation benefits as of October 20, 1999; and (2) Employer had not met its burden of proof supporting the termination of benefits because Claimant had not fully recovered from her work-related injury of December 17, 1997. Id. at 5. Accordingly, the WCJ entered an order awarding Claimant compensation benefits from October 20, 1999 and ongoing at a rate of $271.00 per week, plus statutory interest on all deferred compensation and all reasonable and necessary medical expenses. Id.
On March 4, 2003, Employer appealed the WCJ's decision to the Board. On February 8, 2005, the Board issued an opinion and order affirming the WCJ's decision. Employer then filed the instant petition for review.
In this appeal, Employer claims that the Board erred in affirming the WCJ's decision because: (1) Employer sustained its burden of proof warranting the termination of compensation benefits; (2) Claimant failed to sustain her burden of proof warranting the reinstatement of compensation benefits; and (3) the WCJ erred in admitting into evidence, and relying upon, properly objected to hospital records offered by Claimant.
Employer first claims that the Board erred in affirming the WCJ's decision because it sustained its burden of proof warran
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