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Mendes v. Workers' Compensation Appeal Board

August 26, 2009

CARLOS MENDES, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (LISBON CONTRACTORS, INC.), RESPONDENT



The opinion of the court was delivered by: Bernard L. McGINLEY, Judge

ORDER

AND NOW, this 26th day of August, 2009, it is ORDERED that the above-captioned opinion filed May 29, 2009 shall be designated OPINION rather that MEMORANDUM OPINION, and it shall be reported.

Submitted: May 1, 2009

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE JIM FLAHERTY, Senior Judge.

OPINION

JUDGE McGINLEY

FILED: May 29, 2009

Carlos Mendes (Claimant) petitions for review of the order of the Workers' Compensation Appeal Board (Board) which affirmed the Workers' Compensation Judge's (WCJ) grant of the suspension petition of Lisbon Contractors, Inc. (Employer).

On July 2, 1990, Claimant was injured in the course and scope of his employment with Employer when he attempted to remove a very heavy iron piece to clean the area. Claimant suffered a disc syndrome or herniated nucleus pulposus, ambulatory dysfunction, myofascial pain syndrome and chronic progression. Pursuant to a supplemental agreement for compensation, the parties agreed Claimant was disabled as of September 19, 1990, and received disability compensation payments of $419.00 per week based on an average weekly wage of $941.00. At the time of injury, Claimant resided in Philadelphia, Pennsylvania. At some point thereafter, Claimant moved to Portugal. The parties stipulated that he has resided in Portugal since at least December 13, 2001. On June 15, 2007, Employer petitioned to suspend benefits on the basis that Claimant was unavailable for employment. Employer did not present any medical evidence. The parties stipulated to the facts.

The WCJ granted the suspension petition on the basis that Claimant voluntarily removed himself from the workforce when he moved to Portugal.

Claimant appealed to the Board which affirmed.

Claimant contends the Board erred when it affirmed the WCJ's grant 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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