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Beck v. Workers' Compensation Appeal Board12/9/2005
Richard Beck (Claimant) petitions for review of the decision of the Workers' Compensation Appeal Board (Board) which affirmed the decision of the Workers' Compensation Judge (WCJ) denying Claimant's reinstatement and penalty petitions. We are asked to determine whether the WCJ erred in denying these petitions and by failing to find the supplemental agreement was materially incorrect because Claimant did not return to work at his pre-injury wage. We affirm.
In August 2001, Claimant sustained a back injury while working as a technician with HB Frazer Company (Employer). Employer denied Claimant's claim. Nevertheless, after an examination by Dr. Andrew Collier, an orthopedic surgeon (Employer's medical expert), Employer issued a notice of compensation payable describing Claimant's injury as a lumbar sprain.
In September 2001, Employer's medical expert released Claimant to return to light-duty work subject to certain restrictions. In October 2001, the doctor cleared Claimant to work full-time at light-duty work.
Claimant returned to work at the light duty position on October 22. He signed a supplemental agreement dated October 24 suspending his benefits based upon his return to work for Employer at no loss in wages. During that week, Claimant worked 171/2 hours at the light duty position, but he did not return to work after October 26.
In January 2002, Claimant filed a reinstatement petition and a penalty petition. In his reinstatement petition, Claimant alleged the supplemental agreement was materially incorrect because it indicated his benefits were suspended even though he did not return to work at his pre-injury average weekly wage. In his penalty petition, Claimant alleged Employer violated the fraud provisions of Section 1102 of the Workers' Compensation Act (Act) by misrepresenting to him his rights under the Act when he signed the supplemental agreement.
In support of his reinstatement petition, Claimant testified about the light-duty job requirements. Also, Claimant stated he stopped working because of increased pain and inability to walk. However, the WCJ rejected Claimant's testimony as not credible.
Claimant's supervisor, Edward Killian (Supervisor), testified Claimant's light-duty position required him to stack boxes weighing approximately one pound. Claimant was not required to walk between buildings or up and down ramps. He was never required to leave the sixth floor of the jobsite. Claimant did not appear to have any difficulty performing the light-duty position. The WCJ accepted Supervisor's testimony as credible and persuasive.
Employer's medical expert testified he examined Claimant in September 2001 and diagnosed his injury as an acute lumbosacral spine strain/sprain and slight right-sided radiculopathy. The doctor released Claimant to light duty work with certain restrictions, which included no lifting over twenty pounds and limitations on bending. Reproduced Record (R.R.) at 388a-89a. Significant for current purposes, Employer's medical expert opined Claimant was capable of performing the light-duty work assigned during his last week with Employer. R.R. at 392a.
In addition, Employer presented testimony from Dr. Jeffrey Malumed, who is also an orthopedic surgeon (Employer's second medical expert). This doctor considered himself to be Claimant's treating physician at the time of his examination in November, 2001. This examination did not reveal any objective findings to support Claimant's complaints of pain in his lower back. Employer's second medical expert believed Claimant was magnifying his symptoms and exaggerating his limitations. He released Claimant to return to his pre-injury
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