May 2, 2013
Donna Noonan (name changed for this summary) sustained a work injury while employed by Harrisburg School District on December 10, 2007, which the District accepted as an aggravation of a cervical disc herniation at C5-6. As a result of this injury, she underwent a total disc replacement arthroplasty at C5-6 on the right. She was unable to work from March 3, 2008 until May 4, 2008. She then returned to work, and her benefits for wage loss were suspended because she was earning her pre-injury wage.
We filed a Reinstatement Petition for the December 10, 2007 injury and requested attorney’s fees for unreasonable contest. We also filed a Claim Petition on her behalf for an October 22, 2009 work injury of substantial worsening and aggravation of C5-6, C4-5 and C6-7. This second injury resulted when a student yanked her right forearm, causing her to be off work with neck and shoulder pain, headaches and numbness and tingling in her right arm. As a result of this injury, Donna underwent another operation to fuse her C5-6 vertebrae.
As a result of a change in insurance companies, Donna’s injuries were each covered by separate insurance companies. Both companies chose to contest the Petitions we filed and to blame the current disability on each others’ date of injury (coverage).
After we filed the Petitions, she had two Independent Medical Examinations (IME). Both IME doctors determined that she was not fully recovered and that her current disability should be the responsibility of the other carrier.
Due to the IME doctor’s opinions and the opinion of her treating orthopedic surgeon, Dr. Reiter, the Workers’ Compensation Judge Clark determined that the only issue was which carrier should be liable. From November 15, 2010 until October 31, 2011, and ordered, pursuant to our Section 410 motion, that the two insurance companies to split (50-50) the benefit payments until a final decision on the petitions. After medical testimony, one company accepted full liability. However, they would not agree to pay attorney fees for unreasonable contest to Donna. The WCJ determined that the insurance company’s decision to contest Amanda’s benefits prior to accepting liability was unreasonable, particularly in light of the IME doctor’s findings. Therefore, he awarded $3,510.00 directly to Donna for unreasonable contest attorney’s fees. Thereafter, her future benefits were settled for a lump sum of $135,000.00 plus two additional years of medical treatment.
