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Protection Services12/9/2005
Protection Services, Inc. (Employer) appeals from an order of the Workers' Compensation Appeal Board (Board) affirming the decision of the Workers' Compensation Judge (WCJ) granting the claim petition of Mark Bates (Claimant) because there was no substantial evidence to establish that he had sustained an aggravation of a pre-existing condition.
Claimant had been employed by Employer as a 'lead man,' a job similar to that of a foreman, and was responsible for setting up road construction signs and weighing them down with sandbags. On August 13, 2002, Claimant had a truckload of sandbags and threw the bags out of the truck where the signs were to be placed. When he jumped off the truck to place a bag, he hurt his back, making it difficult for him to even walk. He left the jobsite and informed Employer of the injury by filing a notice of claim, but he continued to work in a light-duty capacity until August 29, 2002. On August 30, 2002, Employer filed a notice of workers' compensation denial. Claimant then filed a claim petition alleging that as a result of his August 13, 2002 work injury, he incurred a herniated disc at L5-S1 with nerve root irritation which caused an aggravation of a pre-existing compensable injury to his lower back on the right side and right leg. Employer filed an answer denying that Claimant's injury was causally related to his work activity and that Claimant was not in the course of his employment at the time of injury.
Before the WCJ, Claimant testified that on August 13, 2002, he was unloading sandbags off the truck and when he jumped off the truck, his back twisted, causing him such pain that he could hardly walk. He left work and then went to Employer's office, but no one was there. When he went back the next morning, he was sent to Altoona Hospital for treatment. He testified that the pain was the same pain that he encountered in an injury that occurred while working for the same Employer in May of 1999. In that incident, he stated that he took a sign off a truck and the wind came and twisted his back, causing him the same type of pain which was in the lower part of the right side of his back and which radiated down through his right leg. He stated that as a result of that injury, while he lost no work, he received a month to six weeks of therapy and the pain from that incident never went away. Claimant also testified that in the past, he had sought treatment from Fred Khalouf, M.D. (Dr. Khalouf) for his continuing back pain. He testified that a March 20, 2002 MRI ordered by Dr. Khalouf revealed a herniated disc at L5-S1. Also, in a report dated July 12, 2002, surgery for the disc herniation was being considered to alleviate increasing back and leg pain. After his injury, Claimant testified that he sought treatment for his back condition from neurosurgeon Donald Whiting, M.D. (Dr. Whiting), who operated on his back on October 4, 2002.
To establish that the injury was work-related, Claimant presented the deposition testimony of Dr. Whiting. He testified that based on Claimant's medical records, Claimant had intermittent back pain for over three years prior to the alleged injury of August 13, 2002, and that he developed right leg pain in March 2002. He had undergone epidural steroid injections and obtained relief from those symptoms prior to his work-related injury. He noted that the pain complained of by Claimant during his September 19, 2002 examination was similar to the pain he was reported to have experienced in March 2002, and that his symptoms were consistent with a disc herniation and nerve root impingement. Dr. Whiting also testified that both the March 20, 2002 MRI and an August 26, 2002 MRI revealed a right-sided L5-S1 disc herniation, and th
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