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TODD ANDERSEN v. WORKMEN'S COMPENSATION APPEAL BOARD (NATIONAL FORGE COMPANY) (02/22/88)

decided: February 22, 1988.

TODD ANDERSEN, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (NATIONAL FORGE COMPANY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Todd Andersen v. National Forge Company, No. A-91135.

COUNSEL

Bernard J. Hessley, for petitioner.

Harry K. Thomas, with him, Richard E. Bordonaro, Knox, Graham, McLaughlin, Gornall and Sennett, Inc., for respondent.

Judges Craig, Doyle and Barry, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 113 Pa. Commw. Page 602]

This is an appeal by Todd Andersen (Claimant) from an order of the Workmen's Compensation Appeal Board (Board) which barred Claimant's petition for modification

[ 113 Pa. Commw. Page 603]

    on the basis that a prior decision of the Board was res judicata.

The facts surrounding this case are unusual. Claimant was employed by National Forge (Employer) as a crane operator. On June 22, 1982, he sustained a work-related back injury and received compensation benefits for total disability. On August 16, 1982, while Claimant was still receiving total disability benefits, and solely because of economic conditions, he was reclassified from a crane operator to a general laborer pursuant to the terms of a labor agreement between Employer and Claimant's labor union. On October 10, 1983 Claimant was officially placed on lay-off status also due to economic conditions. During the entire period, Claimant never returned to work in any capacity for Employer.

Three days prior to Claimant's lay-off, October 7, 1983, Employer filed a termination petition based on a report by Claimant's treating physician who opined that Claimant could return to his previous job as a crane operator, but that he could not return to a position which entailed heavy lifting or the shoveling of heavy loads because of a risk of recurrent injury to Claimant's spine. Claimant was therefore capable of returning to his pre-injury job, which no longer existed, but he was not capable of returning to his reclassified position as a general laborer, a job which he could no longer physically perform.

The referee found that Employer met its burden and terminated Claimant's benefits as of October, 1983. On January 17, 1985, the Board in its decision modified the decision of the referee from a termination of benefits to a suspension of benefits, stating that Claimant suffered from an ongoing residual disability. This decision was not appealed.

On May 14, 1985, just 4 months after the Board's decision, Claimant filed a ...


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