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Kleinhagan v. Workers' Compensation Appeal Board

April 22, 2010


The opinion of the court was delivered by: Senior Judge Flaherty

Submitted: January 29, 2010



Edward Kleinhagen (Claimant) petitions for review from an order of the Workers' Compensation Appeal Board (Board) that affirmed the decision of a Workers' Compensation Judge (WCJ) granting the Modification Petition filed by KNIF Flexpak Corporation (Employer). We affirm.

Claimant sustained an injury to his lower back in the course and scope of his employment with Employer on February 2, 2005. Employer issued a Notice of Compensation Payable (NCP) acknowledging a lumbar strain/sprain. Pursuant to the NCP, Claimant received $304.20 per week based on an average weekly wage of $338.00.

On September 17, 2007, Employer filed a Modification Petition alleging that work was generally available to Claimant within his restrictions as of August 24, 2007. In support of its Petition, Employer presented the testimony of Scott Naftulin, D.O., board certified in physical medicine and rehabilitation, who examined Claimant on March 20, 2007. Based upon Claimant's medical history and his physical examination, Dr. Naftulin opined Claimant sustained a lumbar sprain or strain as a result of his work-related injury. He further concluded that Claimant may have also sustained an internal disc disruption at L4-5 and L5-S1. Dr. Naftulin opined that Claimant was capable of returning to full time employment at medium duty. Dr. Naftulin testified that he received and reviewed five job descriptions included in a labor market survey performed by Joseph M. O'Connor. He believed Claimant was physically capable of performing the duties required by those jobs.

Employer submitted a copy of a Notice of Ability to Return to Work. It is dated March 28, 2007 and indicates Claimant was released to modified work by Dr. Naftulin.

Employer further presented the testimony of Mr. O'Connor, a vocational specialist for Vocational Rehabilitation Services of Northeast Pennsylvania, Inc., who conducted a vocational interview with Claimant on May 4, 2007. Claimant provided Mr. O'Connor with his educational background, his military service history, and his employment history. Subsequent to the vocational interview, Mr. O'Connor identified five jobs within Claimant's physical restrictions established by Dr. Naftulin that were open and available in Claimant's usual employment area. These included a sewing machine operator, a cashier/stock clerk position, an appointment setter, and two telemarketer positions. Mr. O'Connor stated Claimant would have an earning power of $250.95 per week considering those job openings. He issued a labor market survey.

According to Mr. O'Connor, he presented a copy of the Notice of Ability to Return to Work to Claimant and counsel at the vocational interview. He added that he questioned both Claimant and his counsel if they had previously received copies of that document and they agreed that they had.*fn1

Claimant's testimony was limited to the fact that he does not own or have access to a computer, that he never operated a computer, and that he did not know how to operate a computer. Claimant did not present any medical testimony.

The WCJ credited the testimony of Dr. Naftulin as well as that of Mr. O'Connor. In regard to Claimant's inability to use a computer, the WCJ noted that neither the sewing machine operator, nor the cashier/stock clerk position required the use of a computer. Further, the WCJ determined that while the remaining three jobs did require some computer use, the three remaining employers offered necessary training. The WCJ found that Claimant was physically capable of performing the five positions included in the labor market survey. He concluded Employer met its burden of proof to establish that Claimant had an earning power of $250.95 per week. He granted Employer's Modification Petition and modified Claimant's benefits accordingly as of July 31, 2007. The Board affirmed. This appeal followed.*fn2

Claimant argues on appeal that Employer was precluded from obtaining a modification of benefits as a result of its failure to timely provide him with a Notice of Ability to Return to Work consistent with Section 306(b)(3) of the Pennsylvania Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §512(3). Section 306(b)(3) of the Act provides:

If the insurer receives medical evidence that the claimant is able to return to work in any capacity, then the insurer must provide prompt written notice, on a form prescribed by the department, to the claimant, which states all of the following:

(i) The nature of the employe's physical condition or change of condition.

(ii) That the employe has an obligation to look for available employment.

(iii) That proof of available employment opportunities may jeopardize the employe's right to ...

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