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Braz v. Workers' Compensation Appeal Board

March 31, 2009

ANTONIO BRAZ, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (NICOLET, INC.), RESPONDENT



The opinion of the court was delivered by: Judge McGINLEY

ORDER

AND NOW, this 6th day of July, 2009, it is ORDERED that the above-captioned opinion filed March 31, 2009 shall be designated OPINION rather than MEMORANDUM OPINION, and it shall be reported

BERNARD L. McGINLEY, Judge

Submitted: March 6, 2009

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION

Antonio Braz (Claimant) petitions for review of the order of the Workers' Compensation Appeal Board (Board) which reversed the Workers' Compensation Judge's (WCJ) denial of the suspension petition of Nicolet, Inc. (Employer).

On January 23, 1986, Claimant suffered an undisplaced fracture of the right wrist while in the course and scope of his employment with Employer as a machine operator. Pursuant to a notice of compensation payable, Claimant received disability compensation payments of $298.42 per week based on an average weekly wage of $447.63. At the time of injury, Claimant resided in Souderton, Pennsylvania. At some point thereafter, Claimant moved to Portugal. After he had lived there for more than a decade, Employer petitioned to suspend benefits on the basis that Claimant was unavailable for employment because he resided in Portugal. Employer did not present any medical evidence. The parties stipulated to the facts.

The WCJ denied the suspension petition because Employer failed to present any evidence of a change in Claimant's medical condition.

Employer appealed to the Board which reversed:

Here, like the claimant in Blong [v. Workers' Compensation Appeal Board (Fluid Containment), 890 A.2d 1150 (Pa. Cmwlth. 2006), petition for allowance of appeal denied, 592 Pa. 774, 926 A.2d 442 (2007)], Claimant moved out of the country. Thus, even if Defendant [Employer] had been able to establish a change in condition . . . it would be futile to find jobs for Claimant in Pennsylvania as he was living in Portugal. . . . Therefore, we believe, that Claimant's move to Portugal constituted a removal from the work force and the Judge erred in denying Defendant's [Employer] Suspension Petition.

Board Opinion, November 14, 2008, at 4-5; Reproduced Record at 17a-18a.

Claimant contends the Board erred when it reversed the WCJ's denial of the suspension petition.*fn1

In Kachinski v. Workmen's Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987), our Pennsylvania Supreme Court adopted the following requirements which an employer must meet ...


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