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Skyler v. Workers' Compensation Appeal Board10/26/2005
Robert Skyler (Claimant) was employed as a food service technician by Pepsi Cola (Employer) when he suffered a work-related injury in the nature of a lumbosacral sprain on April 27, 1988. Claimant has not returned to work since his injury.
On April 4, 2003, Claimant petitioned for penalties and alleged that " he Insurer [Crawford & Company] has failed and refused to pay for my hospitalization in October, 2002, my steroid injection to my back, my EMG, or the $30 parking fee to have the EMG" and that "Defendant [Employer] has not filed for utilization review." Petition for Penalties, April 4, 2003, at 1; Reproduced Record (R.R.) at 1a. Claimant sought payment of the medical bills, interest, penalties, and counsel fees as costs. Penalty Petition at 1; R.R. at 1a. On July 16, 2004, Claimant again petitioned for penalties and alleged that " he Insurer has failed to reimburse copays Claimant has incurred in treating with Dr. Gerdner ." Penalty Petition, July 16, 2004, at 1, Notice of Assignment Sheet; Certified Record (C.R.). Employer denied all allegations.
At a hearing, Claimant did not testify but introduced into evidence medical records from Brandywine Hospital concerning his hospitalization and the medical report of Jennifer Chu, M.D. (Dr. Chu).
The Brandywine Hospital Initial Assessment Form noted that Claimant stated in the emergency room that "I was bending over to tie my shoes when I had sudden increase in back pain." Initial Assessment Form, October 12, 2002, at 1; R.R. at 81a. The admitting diagnosis was " hronic low back pain with intractable right lower extremity pain." Discharge Summary, October 17, 2002, at 1; R.R. at 75a. The medical records further noted:
Patient [Claimant] had an MRI done through the Emergency Room which showed an L2-3 disc herniation on the right. Patient [Claimant] was quite uncomfortable and was actually placed on a PCA by anesthesia. He was also given Valium intramuscularly for spasms. Over the ensuing days, patient became more and more comfortable. He was actually ambulating to the bathroom and back with significantly less pain.
On 10/17/02 patient [Claimant] requested to be discharged . . . . Dr. Nguyen examined Mr. Skyler [Claimant]. He was oriented X3. He also admitted to significantly less pain and it was O.K. to be discharged on 10/17/02.
Patient [Claimant] was instructed to follow-up with Dr. [Michael] Maggitti within the next few weeks.
Brandywine Hospital Discharge Summary, October 17, 2002, at 1; R.R. at 75a.
Dr. Chu, associate professor of Rehabilitation Medicine, examined Claimant on January 3, 2003, and noted that Claimant "is a 53-year old male with increasing lower back pain since 10/02. He bent over to pick up his shoes and felt severe lower back pain down the right lower extremity. He was hospitalized for one week." (emphasis added). Medical Report of Dr. Jennifer Chu (Dr. Chu Report), January 3, 2003, at 1; R.R. at 51a. Dr. Chu found:
These recent onset EMG changes suggest that there is active and low grade ongoing involvement of these nerve roots due to continued irritation. This may be from new onset injury to the new roots from abnormal mechanical forces exerted on the spine during transfers and ambulation activities during the severe acute pain from the Herepcs Zoster infection. These abnormal forces compounded more injury to the original injury of a stretch/transient compression/distortion type injury or transient compression of these nerve roots against underlying bone which never healed well . . . . (emphasis added).
Dr. Chu Report at 3; R.R. at 53a. Dr. Chu opined that " lthough there has been an acute exac
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