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TRUMAN I. FELLS v. WORKMEN'S COMPENSATION APPEAL BOARD (CATERPILLAR TRACTOR CO.) (12/29/88)

decided: December 29, 1988.

TRUMAN I. FELLS, JR., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (CATERPILLAR TRACTOR CO.), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Truman I. Fells, Jr. v. Caterpillar Tractor Company, No. A-93437.

COUNSEL

Allen H. Smith, for petitioner.

W. Jeffrey Sidebottom, Barley, Snyder, Cooper & Barber, for respondent.

Judges Doyle and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 122 Pa. Commw. Page 400]

Before us is an appeal by Truman I. Fells, Jr. (Claimant), from an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's decision and denying Claimant's petition for reinstatement of benefits. For the reasons which follow, we reverse the decision of the Board.

Claimant was employed by Caterpillar Tractor Company (Employer) as a tow tractor operator. On February 17, 1981, Claimant sustained a work-related injury to his lower back and received benefits. Claimant's benefits were suspended when he returned to his pre-injury job. Due to economic conditions, Claimant was laid off from his pre-injury job. He subsequently filed a petition for reinstatement of his benefits.

The referee found that Claimant was not entitled to a reinstatement of his benefits because he did not prove that his disability had recurred or that his inability to perform his job was due to his work-related injury.

[ 122 Pa. Commw. Page 401]

Claimant appealed this decision to the Board and the Board affirmed the decision of the referee. This appeal ensued.

On appeal here, where both parties have presented evidence, our scope of review is limited to determining whether the necessary findings of fact are supported by substantial evidence and whether an error of law or constitutional violation exists. Russell v. Workmen's Compensation Appeal Board (Volkswagen of America), 121 Pa. Commonwealth Ct. 436, 550 A.2d 1364 (1988). Claimant contends on appeal that the Board erred in determining that he failed to meet his burden to justify the reinstatement of benefits. We agree.

Initially, we observe that the referee committed an error of law in assessing Claimant's burden. Section 413 of The Pennsylvania Workmen's Compensation Act (Act)*fn1 provides that a reinstatement of a claimant's benefits is appropriate when compensation has been suspended and the claimant is no longer able to earn wages equal to or in excess of his pre-injury wages. When a claimant seeks to have his or her suspension lifted, that claimant is required only to demonstrate that the reasons for the suspension no longer exist. Busche v. Workmen's Compensation Appeal Board (Townsend and Bottum, Inc.), 77 Pa. Commonwealth Ct. 469, 466 A.2d 278 (1983). Simply stated, the claimant's burden is to show that he or she remained disabled, and that ...


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