Harle v. Workmen's Compensation Appeal Board

658 A.2d 766, 540 Pa. 482, 1995 Pa. LEXIS 353
CourtSupreme Court of Pennsylvania
DecidedMay 16, 1995
StatusPublished
Cited by62 cases

This text of 658 A.2d 766 (Harle v. Workmen's Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harle v. Workmen's Compensation Appeal Board, 658 A.2d 766, 540 Pa. 482, 1995 Pa. LEXIS 353 (Pa. 1995).

Opinions

OPINION

ZAPPALA, Justice.

Does the Workers’ Compensation Act permit termination of benefits where a claimant is capable of performing his pre-injury job without restrictions despite minor residual physical effects from the injury? May benefits be terminated or suspended where, following the employer’s cessation of business, such a claimant begins working for a different employer, performing the same duties as his pre-injury job, at a lower wage? These are the questions raised in this appeal.

John W. Harle was employed as a pressman with Telegraph Press, Inc. While working on October 12, 1987, he cut and fractured his left thumb. As a result, he received total disability payments of $359.40 per week based on an average weekly wage of $539.10, pursuant to a notice of compensation payable.

Harle’s treating physician released him to return to light duty work on March 28, 1988. He released him to full duty with no restrictions on April 22, 1988. Telegraph Press, however, had ceased conducting business in February of that same year. In August of 1988, a termination petition was filed [484]*484on behalf of Telegraph Press and’ its insurance carrier, asserting that Harle’s disability had ceased.

In deposition testimony taken in May and June of 1989, Harle’s physician testified that he had seen Harle in March of that year. Although Harle complained about discomfort and stiffness in his left hand and wrist, examination showed a full range of motion at the wrist and where the thumb joins the hand, and good though slightly reduced range at the thumb joint where the injury had occurred. The doctor expressed his opinion that Harle should be able to perform the duties described to him as being incident to employment as a pressman.

At a hearing in July of 1989, Harle testified that he continued to experience pain in his wrist when performing heavy duties, and had problems grasping some tools. He acknowledged that he had begun working for Directory Printing Company in September of 1988, was laid off from January 30 through May 5, 1989, and had not lost any working days because of the thumb injury since then. He also indicated that he had worked for two weeks during the layoff period with a printing company of which he is part-owner. Harle testified that his hourly wage at Directory Printing was $11.50, roughly $2.00 per hour less than his wage at Telegraph Press.

The referee1 found the physician’s testimony to be credible and determined in his conclusions of law that “all claimant’s disability relative to the injury of October 12, 1987 has ceased.” He ordered termination of benefits as of April 22, 1988. The Board affirmed, stating that the substance of the doctor’s testimony was that all work-related disability had ceased, even if he failed to use those “magic words.” Commonwealth Court, however, reversed and remanded for a determination of partial disability benefits.

The court, citing Rogers Motor Lines v. Workmen’s Compensation Appeal Board (Baker), 144 Pa.Commw. 493, 496, [485]*485601 A.2d 934, 935 (1992), stated that “[a] termination petition may only be based upon a properly supported finding ‘that the claimant’s disability has entirely ceased.’ ” (Emphasis in original). Highlighting the doctor’s testimony that Harle continued to have a reduced range of motion in the thumb joint, the court concluded that there was not substantial evidence to support the findings necessary for a termination of benefits.

Commonwealth Court then proceeded to examine whether the employer might be entitled to any form of relief other than termination of benefits. The court stated that where “an employee can return to his pre-injury position, but ... continues to suffer some residual impairment, a suspension of benefits is proper because the medical disability does not manifest itself in a loss of earnings.” 155 Pa.Commw. 556, 562, 625 A.2d 751, 754, citing Hawkins v. Workmen’s Compensation Appeal Board (Medical College of Pennsylvania), 138 Pa.Commw. 180, 587 A.2d 387 (1991). The court further stated that where the pre-injury position is not available, however, “a suspension of benefits is not warranted because the employer has not proven the necessary element of job availability.” 155 Pa.Commw. at 563, 625 A.2d at 754, citing Zimcosky v. Workmen’s Compensation Appeal Board (United States Steel Corp.), 118 Pa.Commw. 209, 544 A.2d 1106 (1988).

The court treated this case as a “hybrid” of these two situations, because although the medical evidence indicated that Harle could return to his pre-injury employment, and although his pre-injury position was no longer available, Harle admitted that he had obtained a similar position elsewhere, albeit at a lower wage. This admission obviated the need for the employer to produce evidence of job availability. Thus the court found that modification of benefits to partial disability was the appropriate remedy, and remanded for calculation of benefits based on the difference between Harle’s pre-injury wages and his current wages.

On appeal to this Court, the employer argues that the Commonwealth Court’s analysis is inconsistent with the longstanding interpretation that the disability that entitles a per[486]*486son to benefits under the Workmen’s Compensation Act is synonymous with “loss of earning power.” See Dillon v. Workmen’s Compensation Appeal Board (Greenwich Collieries), 536 Pa. 490, 640 A.2d 386 (1994); Kachinski v. Workmen’s Compensation Appeal Board (Vepco Construction Company), 516 Pa. 240, 532 A.2d 374 (1987); Unora v. Glen Alden Coal Company, 377 Pa. 7, 104 A.2d 104 (1954). The employer contends that even if there is a “residual physical impairment” or “medical disability,” a claimant should not continue to receive benefits if there is no longer any loss of earning power attributable to the work-related injury. Otherwise, benefits are simply a wage supplement for a worker who by chance is recovering from an injury at the time his employer ceases doing business but later obtains full-time employment, which for reasons unrelated to the injury pays a lower wage. We agree.

The flaw in the Commonwealth Court’s reasoning derives from a misreading of Zimcosky, which in turn was based on our Court’s decision in Kachinski. In Kachinski, we assigned to the employer the burden of proving the availability of work within the employee’s physical limitations when the employer seeks modification of benefits. We further clarified that “availability” means “actual availability,” and adopted the Commonwealth Court’s explanation that

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Bluebook (online)
658 A.2d 766, 540 Pa. 482, 1995 Pa. LEXIS 353, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harle-v-workmens-compensation-appeal-board-pa-1995.