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Bufford v. Workers' Compensation Appeal Board

August 17, 2010

TERRY BUFFORD, APPELLANT
v.
WORKERS' COMPENSATION APPEAL BOARD (NORTH AMERICAN TELECOM), APPELLEES



Appeal from the Memorandum Opinion and Order of the Commonwealth Court, entered April 17, 2008, at No. 1553 C.D. 2007, affirming the Order of the Workers' Compensation Appeal Board, entered August 1, 2007

The opinion of the court was delivered by: Justice McCAFFERY

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.

ARGUED: December 1, 2009

OPINION

In this case, we revisit the issue of the appropriate allocation of the relevant burdens of proof when workers' compensation claimants seek reinstatement of suspended benefits pursuant to Section 413(a) of the Workers' Compensation Act ("Act"),*fn1 77 P.S. § 772. Accordingly, we build upon the foundation laid by Stevens v. Workers' Compensation Appeal Board (Consolidation Coal Co.), 760 A.2d 369 (Pa. 2000), and Pieper v. Ametek-Thermox Instruments Division, 584 A.2d 301 (Pa. 1990), wherein we have made prior relevant interpretations of Section 413(a).

In September 1998, Appellant, Terry Bufford ("Claimant"), was working as a communications installer for Appellee, North American Telecom ("Employer"), when he sustained a work-related lower back injury after being struck by a car and then pinned by it against his own work vehicle. Employer issued a notice of compensation payable acknowledging Claimant's work-related injury and further acknowledging that the injury caused him temporary total disability. In October 1998, Claimant returned to work in a modified, light-duty position, and his workers' compensation benefits were accordingly reduced to partial disability. In March 1999, Claimant voluntarily left his light-duty position with Employer to begin work as an industrial electrician at a business called Ronco Machine ("Ronco") for higher pay and less onerous physical job requirements. Employer then filed a notification of suspension of benefits, asserting that Claimant was no longer suffering a loss of earnings due to his work-related injury.

In January 2003, after working four and one-half years for Ronco, Claimant was laid off for economic reasons. By this point, Employer had closed the facility out of which Claimant had worked, and it no longer maintained a work presence in the area.

In March 2003, Claimant filed a reinstatement petition, claiming that his work-related injury had worsened and that he was again experiencing decreased earning power caused by his work-related injury. Employer contested the petition, and the matter was heard by a workers' compensation judge ("WCJ"). In April 2005, the WCJ issued a decision denying the reinstatement petition, concluding that any loss of earnings suffered by Claimant was caused by his lay-off from Ronco, not by a worsening of the work-related injury. Claimant appealed, and the Workers' Compensation Appeals Board ("WCAB") remanded the matter to the WCJ to make specific factual findings regarding whether Claimant had left his modified-duty employment with Employer because of his work-related injury or for reasons unrelated to the work injury.

Without taking additional evidence and based on testimony previously presented, the WCJ found, on remand, that Claimant had left his light-duty job with Employer because of his desire to pursue higher wages and not because of physical disability. The WCJ also specifically found, based on the credible testimony of Employer's expert medical witness, that Claimant's physical condition had not changed or worsened, as Claimant alleged, and that he remained capable of performing the light-duty job that he had formerly held with Employer. Based on these additional factual findings, the WCJ again denied Claimant's petition for reinstatement, specifically finding that any loss in Claimant's earning power was attributable solely to the fact that he had been laid off from Ronco, not to the work-related injury. The WCAB affirmed, as did the Commonwealth Court on further appeal.

We accepted review of this case, limited to consideration of the following two issues:

1.) Under 77 P.S. § 772, what burden of proof must a claimant who leaves a modified duty position to accept other employment, which involuntarily ends due to no fault of the claimant, meet in order to obtain reinstatement of his or her worker's compensation benefits, if the claimant remains disabled by his original work related injury?

2.) The parties are also to address in their briefs the question of how 77 P.S. § 772 allocates the burden of proof as between the claimant and the employer in reinstatement proceedings. See Stevens v. W.C.A.B. (Consolidation Coal Company), 563 Pa. 297, 760 A.2d 369 (2000).

Bufford v. Workers' Compensation Appeal Board (North American Telecom), 963 A.2d 1271 (Pa. 2009) (per curiam).

Our standard of review of an agency decision, including one of the WCAB, is limited to determining whether there has been a constitutional violation, an error of law, or a violation of agency procedure, and whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704; Pieper, supra at 303. Here, the issues accepted for review relate only to issues of law. When the issue is the proper interpretation of a statute and is, therefore, a question of law, our standard of review is de novo, and the scope of the review to resolve the legal question is plenary. Borough of Heidelberg v. Workers' Compensation Appeal Board (Selva), 928 A.2d 1006, 1009 (Pa. 2007).

Section 413(a) of the Act provides in relevant part:

A workers' compensation judge . may, at any time, modify, reinstate, suspend, or terminate a notice of compensation payable, an original or supplemental agreement or an award of the department or its workers' compensation judge, upon petition filed by either party with the department, upon proof that the disability of an injured employe has increased, decreased, recurred, or has temporarily or finally ceased, or that the status of any dependent has changed. . [W]here compensation has been suspended because the employe's earnings are equal to or in excess of his wages prior to the injury[,] . payments under the agreement or award may be resumed at any time during ...


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