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Uniforce Services and State Workmen's Insurance Fund v. Workers' Compensation Appeal Board11/18/2003
Uniforce Services (Employer) petitions for review of an order of the Workers' Compensation Appeal Board (Board) which reversed the decision of a Workers' Compensation Judge (WCJ) denying the Penalty Petition filed by Mark Colby (Claimant) and remanded this case to the WCJ for the imposition of penalties. We reverse.
Pursuant to an Agreement for Compensation (Agreement), Claimant began receiving compensation benefits for an injury that occurred on May 7, 1993 while he "was lifting a drum to empty it into a pail when he twisted his back." The Agreement also provided that Claimant returned to work on May 17, 1993. However, Claimant later stopped working voluntarily. On November 12, 1997, Claimant filed a Reinstatement Petition alleging that, as of June of 1993, he has suffered from a loss of earning power as a result of his work-related injury. In support of that petition, Claimant presented the testimony of Leroy Pelicci, M.D. Dr. Pelicci testified that Claimant had a disc herniation and chronic pain syndrome as a result of his work-related injury. In a June 10, 1999 decision, a WCJ found that Claimant filed his Reinstatement Petition beyond the applicable statute of limitations. Therefore, the WCJ concluded that the Reinstatement Petition should be dismissed. With regard to the testimony of Dr. Pelicci, the WCJ set forth in Finding of Fact No. 8 that: "Furthermore, we are reluctant to accept the opinion of Dr. Pelicci who did not see the Claimant until four (4) years after the injury and then made a diagnosis that the Claimant has a work related disc problem."
Therefore, the WCJ also concluded that Claimant failed to meet his burden of proving that he was disabled as a result of his work-related injury . Accordingly, the WCJ dismissed Claimant's Reinstatement Petition. On appeal, the Board vacated in part the WCJ's decision to the extent that he determined that the Reinstatement Petition was barred by the statute of limitations. However, the Board affirmed the decision of the WCJ that Claimant failed to meet his burden of proving that his loss of earning power was caused by his work-related injury. Accordingly, the Board affirmed the WCJ's denial of Claimant's Reinstatement Petition. On appeal, this Court affirmed the order of the Board.
Thereafter, on July 19, 2000, Claimant filed a Penalty Petition alleging that Employer's insurance company has violated the Workers' Compensation Act (Act) by failing to pay reasonable and necessary medical bills that are causally related to his work-related injury . Employer filed an Answer denying the allegations set forth in the Penalty Petition. In support of the Penalty Petition, Claimant submitted evidence showing that Employer did not pay the bills for his prescription medication or Dr. Pelicci's medical bills. Claimant also submitted a June 6, 2000 letter from Dr. Pelicci wherein he stated, in relevant part, that Claimant's "treatment was all referable to his original work injury, more specifically the lumbar condition and the herniations in said area causing him chronic myofascial spasm and pain." In defense of the Penalty Petition, Employer submitted the June 10, 1999 WCJ decision.
By decision dated September 26, 2001, the WCJ found that, because the prior WCJ "rejected Dr. Pelicci's opinion that Claimant's condition was caused by the work injury, the Employer/Insurer did not violate the Act by failing to pay his ongoing medical bills." (Finding of Fact No. 8). Accordingly, the WCJ denied Claimant's Penalty Petition. On appeal, the Board stated that all the prior WCJ's decision determined was that "Claimant's herniation and chronic pain syndrome were unrelated to Claimant's accepted work injury. However, none of [Emplo
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