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Harr v. Workers' Compensation Appeal Board10/11/2005
Jacqueline Harr (Claimant) appeals an order of the Workers' Compensation Appeal Board (Board) affirming the decision of the Workers' Compensation Judge, Paul J. Costelnock, (WCJ) granting the modification petition filed by Integrated Health Services, Inc. (Employer) because she was capable of returning to available light-duty work.
On January 29, 2001, while lifting a patient at work, Claimant suffered an injury to her lower back. Claimant immediately filed a claim petition which Employer opposed. Based on the medical testimony offered at the hearing on the claim petition, in his July 2002 decision, WCJ Irving L. Bloom (WCJ Bloom) found that Claimant had a disc herniation at L5-S1, nerve root impingement, lumbar pain with palpation, decreased range of motion and spasm of the paravertebre muscles, and radicular symptoms with numbness of both feet, lower back and on the left side. As one of the factual findings, the WCJ found credible the testimony of Claimant's treating physician, Emilio Navarro, M.D. (Dr. Navarro), who testified that Claimant was presently at maximum medical improvement and was disabled from performing any type of work.
On March 3, 2003, Employer sent Claimant to Jack Smith, M.D. (Dr. Smith) for an independent medical examination. Dr. Smith determined that Claimant's physical condition had changed to the extent that she was capable of returning to sedentary work, though her movement should be restricted, and indicated that occasional monitoring of her condition would be necessary. Employer then offered Claimant a light-duty job as a Certified Nursing Assistant, which consisted of sorting paperwork, answering the telephone and light filing, but not any lifting over five pounds. The job also would have entailed writing information on patients' charts, preparing new admission charts and greeting visitors. Almost of all the duties could have been performed while either sitting or standing, and Claimant could have taken breaks at any time, including lying down, if she was experiencing discomfort.
Claimant attempted to begin the position on June 18, 2003, but left early that same day stating that she was experiencing pain that was too great for her to continue. Employer then filed a modification petition alleging that Claimant failed to exercise a good faith effort in attempting to return to work. Claimant filed an answer denying the allegations and stated that she attempted to perform the light-duty position, but was unable to do so because of severe and disabling pain.
Before the WCJ, Employer offered the testimony of Dr. Smith who stated that although Claimant did have a diagnosis of a herniated disk at L5-S1 with mechanical low back pain and while her condition would not improve, Claimant was physically capable of returning to work at a sedentary capacity with various restrictions on her activities. He testified that the position offered to her by Employer was within her medical capabilities. Barry Farmer (Farmer) also testified on behalf of Employer and stated that he was hired to conduct surveillance of Claimant. On December 27, 2003, Claimant was videotaped driving to a Wal-Mart store and spending approximately three and one-half hours in the store.
Claimant presented the testimony of Dr. Navarro who had been treating her by prescribing physical therapy, performing injections and prescribing chronic pain medication and muscle relaxers. He testified that despite the treatment, Claimant's condition had deteriorated over time, and he was of the opinion that she remained totally disabled and incapable of returning to any type of work. Dr. Navarro also testified that he was aware that Claimant had been offered a light-duty position
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