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December 4, 1997


Appealed From No. A95-4096. 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: December 4, 1997

Daniel Magulick (Claimant) appeals an order of the Workers' Compensation Appeal Board (Board) which reversed the decision of the Workers' Compensation Judge (WCJ) which had awarded Claimant disability payments for a closed two-week period in February 1993, and for another closed period from April 30, 1993, through August 30, 1993, and awarded continuing total disability beginning on December 17, 1993, except for a period from June 24, 1994, through June 27, 1994.

The record reveals the following facts. Claimant began his employment as an electrician with Bethlehem Steel Corporation (Employer) on April 12, 1965, and on March 6, 1992, he was injured when he fell approximately 28 feet from a ladder while in the course and scope of his employment. As a result, Claimant suffered multiple compression fractures in his lower back, which required seven days of hospitalization and forced Claimant to miss work from March 6, 1992, until November 4, 1992, the date on which he returned to work. During the time of his disability, Claimant received workers' compensation benefits. The WCJ found that he returned to the job of electrician, but it was not as physically strenuous because Employer was in the process of shutting down. When Claimant returned to work, he continued to experience back pain such that he could not stand, kneel or sit for more than forty-five minutes without pain.

Shortly after Claimant returned to work, on November 16, 1992, Employer filed a termination petition, alleging that Claimant had fully recovered from his injury as of November 4, 1992. Claimant filed a timely answer denying that he had fully recovered and, in an amended answer, requested a reinstatement of his benefits because he was laid off for a two-week period in February of 1993 as well as from April 30, 1993, to August 30, 1993. Following these layoffs, Claimant worked until December 16, 1993, when he was laid off for a final time as a result of the closing of Employer's facility. Claimant's only other work was as an electrician for United Industries from June 23, 1994, to June 27, 1994, where he performed light wiring, but ceased working entirely when the job was completed.

At a July 13, 1994 hearing before the WCJ, Claimant testified concerning his pre-injury duties, his injury, and his return to work. Claimant explained that, due to a shut down at Employer's facility, his post-injury duties with Employer consisted mainly of inspection, taking inventory, and changing light bulbs. (Notes of Testimony (N.T.), 7/13/94, at 12; Reproduced Record (R.R.) at 75a.) Thus, although he had the same job title when he returned to work on November 4, 1992, Claimant considered his actual duties at that time to be light duty. Claimant concluded that he could not perform his time-of-injury job due to lingering back pain that resulted from his injury.

In addition to his own testimony, Claimant presented the deposition testimony of Dr. Robert Rundorff, one of Claimant's treating physicians. At his September 22, 1993 deposition, Dr. Rundorff testified that he would not diagnose Claimant as fully recovered due to Claimant's residual back pain. In addition, Dr. Rundorff noted that a work-capacity evaluation, dated October 30, 1992, indicated that Claimant could perform work at a medium- heavy level. He concluded that Claimant's job duties with Employer, as they existed when Claimant returned to work, were within this level. (N.T., 9/22/93, at 9; R.R. at 48a).

In response, Employer presented the deposition testimony of Dr. Trevor W. Yardley and Dr. Roy W. Warren. Dr. Yardley treated Claimant when Claimant was hospitalized immediately after his injury. Dr. Yardley stated that Claimant's pre-injury job involved heavy work. Although Claimant's physical evaluations indicated that he could perform only medium-level work, Dr. Yardley released Claimant to return to work without restrictions because he believed that Claimant had fully recovered from his injury as of August 31, 1992, the last date that Dr. Yardley saw Claimant. In contrast, Dr. Warren who provided occupational health services to Employer, concluded that Claimant was no longer disabled and could return to his job as of November 3, 1992.

Based upon the evidence before him, the WCJ made his findings of fact. Specifically, the WCJ found the testimony of Employer's doctors to be less credible because the doctors contradicted each other regarding the date on which Claimant was able to return to his job and when he no longer needed treatment. (WCJ Decision at 8; Finding of Fact (F.F.) No. 10; R.R. at 140a.) The WCJ concluded that Employer had not carried its burden of showing that Claimant had either completely recovered from his work-related injury or that there was no causal connection between the current disability and the March 6, 1992 accident. (WCJ Decision at 9; Conclusion of Law No. 2; R.R. at 141a.) As a result, the WCJ denied Employer's Termination Petition and reinstated Claimant's disability payments for the closed two-week period in February 1993 when Claimant was not working, as well as for the other closed period, from April 30, 1993, to August 30, 1993. The WCJ further ordered Employer to pay Claimant continuing total disability from December 17, 1993, except for the four-day period from June 23, 1994, to June 27, 1994, when Claimant was employed at United Industries. (WCJ Decision at 9; Conclusions of Law No. 4-5; R.R. at 141a.)

On appeal to the Board, Employer argued that Claimant's earning loss was not caused by his work-related injury, but was caused solely by Claimant's layoff from Employer. The Board agreed citing Harle v. Workmen's Compensation Appeal Board (Telegraph Press, Inc.), 540 Pa. 482, 658 A.2d 766 (1995), and held that a claimant must demonstrate that his loss of earnings is due to a work-related injury. The Board concluded that Dr. Rundorff's testimony, that any restrictions that Claimant had were consistent with the resumption of his employment with Employer, demonstrated that Claimant failed to prove that his loss of earnings was due to his work-related injury. (Decision of the Board at 6; R.R. at 128a.) Thus the Board reversed the decision of the WCJ and suspended Claimant's benefits effective December 17, 1993.

On appeal, *fn1 Claimant raises two issues. First, Claimant argues that the Board committed an error of law by concluding that the present case is controlled by our Supreme Court's decision in Harle. Second, if we determine that the Board erred in denying Claimant benefits, Claimant alleges that the WCJ incorrectly calculated Claimant's benefits. Therefore, if we find that the Board did err in reversing the decision of the WCJ, we must also recalculate Claimant's weekly benefits.

It is, of course, well settled that a suspension of benefits is warranted under the Workers' Compensation Act (Act) *fn2 when a claimant experiences a residual physical impairment, but the claimant's wages are equal to or greater than the amount 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). Although an employer is still responsible for the ...

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