McKay v. Workmen's Compensation Appeal Board

688 A.2d 259, 1997 Pa. Commw. LEXIS 33
CourtCommonwealth Court of Pennsylvania
DecidedJanuary 28, 1997
StatusPublished
Cited by44 cases

This text of 688 A.2d 259 (McKay 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
McKay v. Workmen's Compensation Appeal Board, 688 A.2d 259, 1997 Pa. Commw. LEXIS 33 (Pa. Ct. App. 1997).

Opinion

DOYLE, Judge.

Teledyne McKay (Employer) appeals an order of the Workmen’s Compensation Appeal Board (the Board) which affirmed an order of a Workers’ Compensation Judge (WCJ) and granted Paul Osmolinski’s (Claimant) petition for reinstatement of benefits.

On July 20, 1984, Claimant suffered an injury to his left hand during the scope and course of his employment for Employer. Pursuant to a notice of compensation payable dated August 7, 1984, Claimant thereafter received total disability benefits in the amount of $296.60. By supplemental agreement, Claimant’s benefits were suspended effective September 24, 1984, the date on which Claimant returned to his pre-injury position, with a fifty-pound lifting restriction.

On July 2, 1998, Employer’s plant closed and Claimant was laid off. Claimant then collected unemployment benefits, in the amount of $317.00 per week, from July 2, 1993, through May 21, 1994. Additionally, Employer paid approximately $6,000.00 in net severance pay to Claimant.

On February 3,1994, Claimant filed a reinstatement petition alleging that his earning power was once again adversely affected by his work injury.

Following hearings, the WCJ found that, when Claimant returned to work in September of 1984, Claimant could perform most, but not all, of his pre-injury duties, and that Claimant continued to experience significant problems with his left hand, to wit, numbness and intermittent pain. The WCJ also accepted as credible the testimony of Claimant’s medical expert, Dr. VanGiesen, who opined that Claimant was suffering from post traumatic degenerative osteoarthritis of the in-terphalangeal joint, with tendon disruption, a crush injury, cold intolerance of the left long and ring fingers, and permanent diminished grip strength. The WCJ concluded that Claimant met his burden under the reinstatement petition, and, therefore, by order dated February 1, 1995, granted Claimant’s petition, effective July 2, 1993, the date of Employer’s plant closing. Employer appealed to the Board which affirmed.

On appeal, Employer first argues that the Board erred in affirming the WCJ because Claimant failed to establish that his disability, i.e., loss of earning power, was attributable to his work injury.

A suspension is warranted under the Workers’ Compensation Act where a claimant has a residual physical impairment attributable to a work-related injury but is receiving wages equal to or in excess of what the claimant had earned in his pre-injury job. Diffenderfer v. Workmen’s Compensation Appeal Board (Rabestos Manhatten, Inc.), 651 A.2d 1178 (Pa.Cmwlth.1994), petition for allowance of appeal denied, 540 Pa. 642, 659 A.2d 561 (1995). Although the employer remains liable for the consequences of the work-related injury, there is no longer any “disability,” i.e., loss of earning power, attributable to the work-related injury. Id.

A claimant seeking reinstatement following a suspension of benefits must prove that: (1) through no fault of his or her own, the claimant’s disability, ie., earning power, is again adversely affected by the work-related injury, and (2) the disability which gave rise to the original claims continues. Pieper v. Ametek-Thermox Instruments, 526 Pa. 25, 584 A.2d 301 (1990).

“Given the nature of suspension status, which actually acknowledges a continuing medical injury, and suspends benefits only because the claimant’s earning power is currently not affected by the injury, the testimony of a claimant, alone, ... satisf[ies] his burden of establishing that his work-related injury continues.” Latta v. Workmen’s Compensation Appeal Board (Latrobe Die Casting Co.), 537 Pa. 223, 227, 642 A.2d 1083, 1085 (1994) (emphasis in original).

[262]*262Where a claimant returns to work under a suspension, with restrictions, that is, does not return to his or her time-of-injury job, but rather to a modified position, and is subsequently laid off and petitions for the reinstatement of benefits, the claimant is also entitled to the presumption that his or her disability, i.e., loss of earning power, is causally related to the continuing work injury. See Crowell v. Workmen’s Compensation Appeal Board (Johnson Dairy Farm), 665 A.2d 30 (Pa.Cmwlth.1995) (where a claimant returns to a light-duty position following a suspension because he could not perform his pre-injury job without experiencing significant pain, the claimant is subsequently laid off due to lack of available work, and the claimant petitions for reinstatement of benefits, we held that the claimant’s disability, i.e., loss of earning power, had been adversely affected by his work injury).

Conversely, where a claimant returns to work under a suspension, without restriction, to his or her pre-injury job, is subsequently laid off, and then petitions for reinstatement, the claimant has the burden to affirmatively establish that it is the work-related injury which is causing his or her present loss of earnings. That is, while the claimant still enjoys the presumption that some work-related medical injury continues,1 the claimant is not entitled to the presumption that his or her present disability, i.e. loss of earnings, is causally related to that work injury. See Trumbull v. Workmen’s Compensation Appeal Board (Helen Mining Co.), 683 A.2d 342 (Pa.Cmwlth.1996); Ogden Aviation Services v. Workmen’s Compensar tion Appeal Board (Harper), 681 A.2d 864 (Pa.Cmwlth.1996).

If the claimant meets this additional burden, then the claimant is entitled to a reinstatement of benefits unless the employer provides available work within the claimant’s physical restrictions,2 or establishes before the appropriate tribunals that it is not the claimant’s disability due to the work-related injury which is causing the present loss of earnings.3 Trumbull.

Applying this analysis to the instant case, we first note that the WCJ found that when Claimant returned to work with Employer, he did so with restrictions. In this regard, the WCJ found:

4. Claimant returned to his job on September 24, 1984 and was able to perform most functions of his job. Claimant was subject to a fifty pound lifting restriction.
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7. The Claimant explained that- his middle or long finger is still completely numb on the end and his ring finger is numb on the tip. Claimant also has a sharp pain every now and then from his left elbow to his fingers.

(WCJ’s decision at 3, Findings of Fact No. 4, 7.) (Emphasis added.) Contrary to Employer’s assertions, these findings are supported by Claimant’s testimony, as accepted by the WCJ, that prior to his work injury, Claimant operated two machines simultaneously, but after he returned to work under the suspension, he could only operate one machine due to his work injury.

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Bluebook (online)
688 A.2d 259, 1997 Pa. Commw. LEXIS 33, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckay-v-workmens-compensation-appeal-board-pacommwct-1997.