Kohut v. Workmen's Compensation Appeal Board

641 A.2d 17, 163 Pa. Commw. 266, 1994 Pa. Commw. LEXIS 165
CourtCommonwealth Court of Pennsylvania
DecidedApril 7, 1994
StatusPublished
Cited by1 cases

This text of 641 A.2d 17 (Kohut v. Workmen's Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kohut v. Workmen's Compensation Appeal Board, 641 A.2d 17, 163 Pa. Commw. 266, 1994 Pa. Commw. LEXIS 165 (Pa. Ct. App. 1994).

Opinion

DELLA PORTA, Senior Judge.

David Kohut (Claimant) petitions this Court for review of the order of the Workmen’s Compensation Appeal Board (Board) which affirmed the decision of the referee denying Claimant’s Petition to Reinstate Compensation Benefits. The issues on appeal are whether Claimant was erroneously required to prove that his medical condition had changed and whether Claimant met his burden under the correct standard as enunciated in Pieper v. Ametek-Thermox Instruments Division, 526 Pa. 25, 584 A.2d 301 (1990). We affirm.

[18]*18Claimant was employed as a foreman with Employer, whose business involved the paving and landscaping of highways and roads, when, on September 25, 1980, while attempting to attach a mulching machine to the back of a truck, he was accidentally pinned against the hitch of the mulching machine and suffered a severe contusion to his lower back and his lower abdomen. Claimant received compensation benefits pursuant to a Notice of Compensation Payable until March 24, 1981, at which time Claimant returned to work with Employer in his same position as a foreman and with no loss of earnings. Claimant’s treating physician, Dr. Milton C. Lapp, signed a Physician’s Affidavit of Recovery stating that Claimant had fully recovered from his work-related injury and that Claimant could return to his pre-injury job without restrictions.

Thereafter, Employer filed a Petition to Terminate Benefits on April 6, 1981, which was resolved by a Supplemental Agreement the parties entered into on June 3, 1982. The Agreement provided in pertinent part that:

The parties agree that compensation shall be suspended/solely because David Kohut returned to work at wages equal to or in excess of his preinjury wages on March 24, 1981. This stipulation for suspension does not in any way constitute an admission by either party or otherwise have any impact upon the question of whether or not Mr. Kohut continues to suffer any disability arising out of the aforesaid accident.

Claimant continued working for Employer until September, 1982, when Employer closed its operations and Claimant was laid-off. Claimant was able to secure a position as a full-time substitute teacher from 1982 through 1989. Claimant also worked at a construction job in 1989.

On April 17,1984, Claimant filed a Petition for Reinstatement of Compensation Benefits alleging that his disability continued and in fact had worsened, rendering him totally disabled. Employer denied any disability relating to the September 25, 1980 accident and argued that Claimant was terminated in 1982 for economic reasons only. Employer also alleged that Claimant had subsequently held other jobs and was capable of engaging in gainful employment. After holding hearings on the petition, the referee issued his first decision on January 10, 1986 denying Claimant’s petition for reinstatement, finding that Claimant was not totally or even partially disabled from earning wages equal to or in excess of his pre-injury wages. The referee concluded that “[bjecause the Claimant has failed to meet his burden of proof and show that his condition has changed so as to become disabling to him, his Petition for Reinstatement of benefits should be dismissed.”

After the Board affirmed the referee, Claimant filed a petition for review with this Court, which remanded the matter to the Board for factual findings on the sole issue as to whether Claimant had returned to his pre-injury job or to a modified position when he returned to work for Employer in March 1981.1

The referee conducted hearings on the remanded reinstatement petition in which both sides presented additional evidence. On February 7, 1991, the referee once again denied Claimant’s reinstatement petition based on his findings that Claimant had returned to his pre-injury job without restrictions and because Claimant had failed to prove that his condition had changed. On appeal, the Board affirmed the referee and Claimant is once again before this Court on his petition for review.2

Claimant contends that the referee committed an error of law by requiring him to prove that his medical condition had changed in order to have his suspended benefits reinstated. Claimant also argues that in Fells v. Workmen’s Compensation Appeal Board (Caterpillar Tractor Co.), 122 Pa.Commonwealth Ct. 399, 552 A.2d 334 (1988), this [19]*19Court eliminated the burden of proof distinction between those claimants who return to modified jobs and those who return to pre-injury jobs, and then file for reinstatement of benefits. Therefore, Claimant argues, because the medical evidence established the ongoing nature of his disability and because he also proved that he suffered a loss of earnings through no fault of his own when Employer’s business closed down and he was laid-off, he has met his burden of proof and his benefits should be reinstated.

In Pieper, the Supreme Court distinguished between those claimants who petition for reinstatement following termination of benefits and those claimants who petition for reinstatement following a suspension of benefits in order to determine what the proper burden of proof is in a given situation. In order to shed some light on the matter before us, we will quote at length the following passages from Pieper:

In any event, a termination of benefits must go hand-in-hand with a termination of the liability of an employer. If the claimant later petitions for reinstatement of benefits, it is incumbent upon the employer to submit the proper evidence of such termination_ If the evidence ... sufficiently establishes a ‘termination of liability’, then the claimant must establish a causal connection between his current condition and the prior work-related injury in order to have benefits reinstated.... To meet this burden, the claimant must establish that his disability has increased or recurred after the date of the prior award, and that his physical condition has actually changed in some manner....
No such causal connection must be shown in a ‘suspension of benefits’ situation. ...
In such suspension situations, the causal connection between the original work-related injury and the disability which gave rise to compensation is presumed. First, it is presumed because the causal connection ... was initially either not contested by the employer or established by competent proof by the employee at the time of the original disability claim. Second, it is presumed because with a mere suspension of benefits, there is no contention by any party that the liability of the employer has terminated. The only fact established at a suspension of benefits is that the earning power of a claimant has improved to a point where benefits are no longer necessary. ...
Thereafter, if the economic picture of a claimant changes and he applies for reinstatement of benefits ... the law requires a claimant to prove two things in order to show that the reasons for the suspension no longer exist.... First, he must prove that through no fault of his own his earning power is once again adversely affected by his disability. And Second, that the disability which gave rise to his original claim, in fact, continues.

Id.

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Related

Marley v. Workmen's Compensation Appeal Board
672 A.2d 356 (Commonwealth Court of Pennsylvania, 1996)

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Bluebook (online)
641 A.2d 17, 163 Pa. Commw. 266, 1994 Pa. Commw. LEXIS 165, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kohut-v-workmens-compensation-appeal-board-pacommwct-1994.