Board grants the employer’s termination petition based on the employer’s medical expert’s opinion that the claimant has sufficiently recovered from the work injury to the point where she can perform full-time sedentary work.
The claimant sustained a compensable work injury to her neck and right shoulder on December 7, 2010, while working as a certified nursing assistant. By agreement, she was put on total disability and was compensated for a 20% permanency to the cervical spine. Thereafter, the employer filed a termination petition, alleging the claimant was physically able to return to work.
The evidence presented to the Board included the testimony of the employer’s medical expert, who, based on his most recent evaluation of the claimant in March 2013, opined that the claimant had recovered to the point where she could do sedentary duty work with a five-pound lifting restriction and with no repetitive use of the upper extremities. The medical expert did acknowledge that the claimant continued to have chronic neck and a bilateral shoulder condition, although only the right shoulder problem was related to the work incident. The employer presented the testimony of a vocational consultant, who identified 12 sedentary jobs as being appropriate for the claimant, of which five continued to be available as of the hearing date.
The claimant testified that she did not believe she was able to do full-time sedentary work, although she said that she did want to return to work. She also indicated that her pain was at a level 9 on a scale of 0 to 10. The claimant’s medical expert was a neurosurgeon who had performed several surgeries on the claimant. Specifically, he had done surgery to the cervical spine prior to the work injury, and subsequent to the incident, he had done two surgeries in March 2011 and again in May 2011. The latter surgery was a decompression and revision to the cervical spine. The medical expert testified that the claimant did not do well after surgery and continued to be in severe pain. He maintained her on total disability status and expressed the opinion that, based on the claimant’s severe pain, as well as muscle spasms and the taking of narcotic medications, she was not employable.
The Board reviewed the evidence, including the conflicting medical opinions, and concluded that the employer had met its burden of proof and that the claimant was capable of returning to full-time sedentary work with upper extremity restrictions. In so doing, the Board commented that, at the time of the hearing, it had been nearly two years since the claimant’s last neck surgery and more than 18 months since her right shoulder surgery. The Board agreed with the employer’s medical expert that, under the circumstances, a return to work for the claimant would be rehabilitative under the Healthcare Practice Guidelines. In addition, the Board found that the claimant was not entitled to any partial disability benefits since the average weekly wage, as documented by the Labor Market Survey, of $405 per week was in excess of the claimant’s pre-injury average weekly wage of $315. Accordingly, the termination petition was granted as of the date of the Board’s decision.
Case Law Alerts, 4th Quarter 2013