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November 6, 1997


Appealed From No. A95-2942. State Agency Workers' Compensation Appeal Board.

Before: Honorable Joseph T. Doyle, Judge, Honorable Bernard L. McGINLEY, Judge, Honorable Charles A. Lord, Senior Judge. Opinion BY Judge Doyle.

The opinion of the court was delivered by: Doyle


FILED: November 6, 1997

Sharon Steel Corporation (Employer) appeals from an order of the Workers' Compensation Appeal Board (Board), which reversed the decision of a Workers' Compensation Judge (WCJ) which had denied Dennis DeMartinis' (Claimant) Petition for Reinstatement of compensation benefits.

Claimant worked for Employer as a tow motor driver, *fn1 and on July 23, 1987, he sustained a work-related injury to his back and shoulder while changing a propane canister on the tow motor he was operating. Claimant's injury required him to be hospitalized for several days, and he began receiving compensation benefits pursuant to a Notice of Compensation Payable issued on August 5, 1987.

In June of 1988, Claimant returned to work for Employer in a light-duty clerical position under restrictions imposed by his physician, Dr. Stabile. The restrictions included no bending, sitting or standing for longer than fifteen minutes, no lifting more than ten pounds and no walking long distances. In August 1988, Dr. Stabile authorized Claimant to perform medium-duty work.

In January 1989, Dr. Stabile determined that Claimant could return to his time-of-injury job, subject to these restrictions: no frequent twisting, bending, stooping, squatting or climbing. Employer, however, never returned Claimant to his time-of-injury position. Instead, Employer continued to have Claimant perform light-duty clerical work until Claimant was laid off in November 1992.

In October 1993, Claimant filed a Petition for Reinstatement of disability benefits. Employer filed an answer denying the material allegations of Claimant's petition, and after several hearings in this matter, the WCJ denied Claimant's reinstatement petition by a decision circulated on July 10, 1995. *fn2

The WCJ concluded that, as a matter of law, Claimant was not entitled to a reinstatement of benefits, because Claimant "was released to his pre-injury position in January 1989." (Decision of WCJ at 3; R.R. at 12a.) The WCJ based his Conclusion on the holding of the Supreme Court in Harle v. Workmen's Compensation Appeal Board (Telegraph Press), 540 Pa. 482, 658 A.2d 766 (1995). In that case, the claimant injured his thumb and was released to return to his time-of-injury job. However, the employer ceased to conduct business before claimant was allowed to return to work. The claimant subsequently worked in the same capacity for another employer, but at a reduced wage. The claimant admitted that he had not lost any working days as a result of his thumb injury. The Supreme Court held that the claimant was not entitled to partial disability benefits because "any difference between Harle's pre-injury wages and post-injury earning power was due to factors other than the injury to his thumb." Harle, 540 Pa. at 489, 658 A.2d at 769-70.

Claimant filed an appeal with the Board, which reversed the WCJ's decision and reinstated Claimant's compensation benefits as of November 6, 1992. The Board determined that the Harle analysis was inapplicable to this case, because, unlike the claimant Harle, Claimant here was released to his pre-injury job with physical restrictions and never actually returned to his time-of-injury job. The Board also took note of the medical evidence presented by both the Claimant and the Employer which supported a finding that Claimant continued to suffer from low back pain and a loss of motion from his work-related injury.

On appeal, Employer contends that the Board erred as a matter of law in reversing the WCJ's decision because Claimant had been released to his time-of-injury job, and Claimant's wage loss was a result of a plant shutdown. Hence, in Employer's view, Claimant is not entitled to a reinstatement of benefits.

Under the Workers' Compensation Act, *fn3 a suspension of benefits is usually warranted 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 or her pre-injury position. Diffenderfer v. Workmen's Compensation Appeal Board (Rabestos Manhatten, Inc.), 651 A.2d 1178 (Pa. Commw. 1994), petition for allowance of appeal denied, 540 Pa. 642, 659 A.2d 561 (1995). While an employer remains liable for the consequences of a work-related injury, there is no longer a "disability," i.e., loss of earning power, attributable to the work-related injury. Id. at 1180.

A claimant seeking reinstatement of benefits following a suspension need only prove: (1) that through no fault of his or her own, the claimant's disability, i.e., earning power, is again affected by the work-related injury, and (2) that the disability which gave rise to the original claim continues. The claimant does not have to reestablish the causal relationship, i.e., job relatedness, of ...

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