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Wallace v. Workers' Compensation Appeal Board10/24/2005
Joseph Wallace (Claimant) petitions for review of the June 9, 2005, order of the Workers' Compensation Appeal Board (WCAB), which affirmed the decision of the workers' compensation judge (WCJ) to grant the modification petition filed by Certainteed Corporation (Employer), to dismiss as moot the suspension petition filed by Employer and to deny the review petition filed by Claimant. We affirm.
On March 27, 2000, Claimant sustained a work-related injury in the nature of carpal tunnel syndrome, and Employer issued a Notice of Compensation Payable (NCP) accepting liability for the injury. On March 4, 2003, Employer filed a petition to modify or suspend Claimant's benefits, alleging that work is generally available within Claimant's physical and vocational ability. On April 28, 2003, Claimant filed a review petition, alleging that the NCP does not correctly describe his work injury. The parties filed answers to the petitions, and the WCJ held hearings on the matters. (WCJ's op. at 1.)
In support of its petition, Employer presented the deposition testimony of A. Lee Osterman, M.D., board-certified in orthopedic surgery, with added qualifications for hand surgery, and laser use in arthroscopic surgery. Dr. Osterman examined Claimant on April 23, 2001, and on June 10, 2002. Based on his initial examination, Dr. Osterman diagnosed Claimant as suffering from work-related bilateral carpal tunnel syndrome and work-related flexor tenosynovitis, or bilateral index trigger finger. Based on his later examination, Dr. Osterman found that Claimant also suffered from non-work-related ulnar nerve irritation at the elbow. Dr. Osterman did not believe that the ulnar nerve problem was related to Claimant's work because: (1) he had not observed an ulnar nerve problem in April of 2001; (2) Claimant had not returned to work since the examination in April of 2001; (3) problems with the ulnar nerve are not caused by overuse; and (4) it is common for people who do not perform physical work involving their elbows to have ulnar nerve problems. Finally, Dr. Osterman prepared a Physical Capacities Assessment for Claimant, indicating that Claimant could perform sedentary and light duty work. (WCJ's Findings of Fact, No. 1.)
Employer also presented the deposition testimony of John H. Blaxland, a Certified Rehabilitation Counselor (CRC), a Certified Disability Management Specialist and a licensed vocationalist with interim approval from the Pennsylvania Department of Labor and Industry to perform vocational surveys. Blaxland testified that he conducted a vocational interview with Claimant and then used Dr. Osterman's medical report and Physical Capacities Assessment to do a labor market survey. Blaxland identified the following forty-hour-per-week, light-duty positions for Claimant: (1) a $7.25 per hour security guard position with Burnes International Security; (2) a $7.50 per hour sales/rental position with Blockbuster Video; (3) a $7.55 per hour sales clerk position with Sunoco Food Mart; (4) a $9.50 per hour management trainee position with KFC; (5) an $11.50 per hour forklift operation position with Kane Distribution, Inc.; (6) a $7.40 per hour cashier position with Texaco Penn Mart; (7) an $8.00 per hour cashier position with Jiffy Lube; (8) a $9.50 per hour bus driver position with Meyers Bus Line; and (9) a $7.50 per hour cashier position with Uni-Mart. (WCJ's Findings of Fact, No. 2.)
In opposition to Employer's petition and in support of his review petition, Claimant testified on his own behalf and presented the deposition testimony of Mark Perlmutter, M.D. Dr. Perlmutter examined Claimant on October 5, 2000, at Employer's request, and on October 29, 2002, at Claimant's request. Dr. Pe
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