NOW, March 10, 2009, it is ordered that the above-captioned Memorandum Opinion, filed January 8, 2009, shall be designated OPINION and shall be REPORTED.
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE JOHNNY J. BUTLER, Judge.
Consol PA Coal Company -- Enlow Fork Mine (Employer) petitions for review of an order of the Workers' Compensation Appeal Board (Board) that affirmed a Workers' Compensation Judge's (WCJ) decision denying Employer's Petition to Suspend Workers' Compensation Benefits (Suspension Petition). At issue in this case is whether Employer has an obligation to provide evidence of work availability when Claimant is released to any employment without conditions.
Thomas Whitfield (Claimant) sustained a workplace injury on April 30, 2005. Employer issued a Notice of Compensation Payable (NCP) on May 16, 2005, describing the injury as a "fracture" of the "left forearm." (NCP). Claimant underwent treatment with Christopher C. Schmidt, M.D., including surgeries to the arm. On August 10, 2006, Dr. Schmidt released Claimant, without restriction, to full-duty work. Based on this release, Employer filed its Suspension Petition. The WCJ conducted hearings in the matter and Employer's sole witness was Dr. Schmidt, testifying through deposition. Claimant testified on his own behalf and presented no additional witnesses.
Dr. Schmidt testified that he released Claimant "without restrictions" to "whatever [work Claimant] wanted to do, full duty." (Schmidt Dep. at 12.) Additionally, Dr. Schmidt testified that he would "reconsider those restrictions" and reevaluate Claimant if Claimant had problems with work. (Schmidt Dep. at 12, 20; WCJ Decision, Findings of Fact (FOF) ¶ 5(l).) Claimant testified that, while he is aware of Dr. Schmidt's release, he believes that he is not able to return to work. Additionally, Claimant testified that it was his understanding that his position was no longer available because his employer has a policy of firing employees who are away from their position for more than one year, but he has not been formally notified that Employer has terminated his employment. (WCJ H'rg Tr. at 19-20, September 21, 2006; FOF ¶ 4(h).) Employer presented no evidence of work availability. Employer also did not dispute that Claimant was no longer employed by Employer.
The WCJ made the following relevant findings:
8. I accept the testimony and opinions of Dr. Schmidt as credible as his testimony is uncontradicted.
9. With the exception of where his testimony conflicts with the credible medical evidence, I accept the testimony of claimant as credible.
10. In terms of any residuals from the work injury, I find that claimant was capable of returning to any work without restriction as of August 10, 2006.
11. Employer did not offer any evidence to show that a job was made available to claimant.
(FOF ¶¶ 8-11.) The WCJ relied on Landmark Constructors, Inc. v. Workers' Compensation Appeal Board (Costello), 560 Pa. 618, 747 A.2d 850 (2000), for the principle that "an employer is required to show job availability in a case where the claimant has been released to return to his pre-injury job without restrictions." (WCJ Decision, Conclusions of Law (COL) ¶ 1.) The WCJ distinguished the case of Harle v. Workmen's Compensation Appeal Board (Telegraph Press, Inc.), 540 Pa. 482, 658 A.2d 766 (1995), "because in that case the claimant had actually returned to work with a new employer." (COL ¶ 1.) Because Employer presented no evidence regarding available jobs, the WCJ denied the Suspension Petition.
Employer appealed to the Board and the Board affirmed. In doing so, the Board concluded that the WCJ correctly relied on Landmark. The Board reasoned that "our research has revealed no cases which alleviated the defendant from demonstrating job availability through a mere showing of increased capacity, regardless of how great that capacity may be." (Board Op. at 5.) The Board similarly distinguished the Harle case as "holding that a showing of job availability was unnecessary where the claimant was already performing ...