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William Allen v. Workers' Compensation Appeal Board (Delaware County Spca

IN THE COMMONWEALTH COURT OF PENNSYLVANIA


December 29, 2011

WILLIAM ALLEN, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (DELAWARE COUNTY SPCA, INC.), RESPONDENT

The opinion of the court was delivered by: Rochelle S. Friedman, Senior Judge

Submitted: September 30, 2011

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY SENIOR JUDGE FRIEDMAN

William Allen (Claimant) petitions for review of the portion of the June 3, 2011, order of the Workers' Compensation Appeal Board (WCAB) that reversed the decision of a workers' compensation judge (WCJ) to reinstate Claimant's benefits on January 29, 2008, following a suspension of his benefits on January 3, 2008. We reverse.

On August 24, 2007, Claimant injured his right shoulder while working as a kennel attendant for Delaware County SPCA, Inc. (Employer). (WCJ's Findings of Fact, No. 4.) Claimant continued to work for Employer and received his pre-injury wages at all times. (WCJ's Findings of Fact, Nos. 5-6.) On January 3, 2008, Claimant quit his job because of the "deterioration of a relationship between the Claimant and upper management and the Claimant's continuing treatment for the work injuries, or for increased right shoulder pain as a result of the work injury in accordance with these findings." (WCJ's Findings of Fact, Nos. 8, 30.)*fn1

On January 29, 2008, Claimant was examined by William C. Murphy, D.O., who found a change in Claimant's condition and determined that Claimant was disabled from his pre-injury job as of that date. (WCJ's Findings of Fact, Nos. 18, 19.) Claimant filed a claim petition, which the WCJ granted based on Dr. Murphy's testimony. The WCJ suspended Claimant's benefits from August 24, 2007, to January 28, 2008,*fn2 but reinstated them on January 29, 2008. In support of the reinstatement of benefits, the WCJ found that Claimant's symptoms had worsened on January 29, 2008, such that Claimant was unable to perform his kennel job. (WCJ's Findings of Fact, Nos. 18-19.)

Employer appealed to the WCAB, arguing that the WCJ erred in failing to suspend Claimant's benefits as of January 3, 2008, the date that Claimant quit. (R.R. at 20a.) The WCAB did not directly address this issue, perhaps because Claimant's benefits had actually been suspended through January 28, 2008. The WCAB believed that Employer was, in effect, challenging the WCJ's reinstatement of Claimant's benefits on January 29, 2008. Although it is not clear from the record, the WCAB apparently reversed the reinstatement of Claimant's benefits as of January 29, 2008, because of Claimant's quit on January 3, 2008, for reasons unrelated to his work injury. Claimant now petitions this court for review.*fn3

Claimant argues that the WCAB erred in reversing the WCJ's decision to reinstate Claimant's benefits as of January 29, 2008. We agree.

Here, Claimant's benefits were suspended on January 3, 2008, after he quit his job with Employer for reasons unrelated to his work injury. In other words, Claimant's benefits were suspended because, in effect, Claimant failed to pursue an available job in good faith. In cases involving a reinstatement of benefits after a suspension for failure to pursue an available job in good faith, the claimant must prove a change in his or her condition such that he or she could no longer perform the job that served as the basis for the suspension. Liggett v. Workmen's Compensation Appeal Board (SEPTA), 669 A.2d 513, 516 (Pa. Cmwlth. 1996). Because the WCJ found that Claimant's condition had changed on January 29, 2008,*fn4 such that Claimant could no longer perform his job with Employer, the WCJ correctly reinstated Claimant's benefits on that date.*fn5

Accordingly, we reverse the portion of the WCAB's order reversing the reinstatement of Claimant's benefits as of January 29, 2008.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William Allen, Petitioner v. Workers' Compensation Appeal : Board (Delaware County SPCA, Inc.), : Respondent

No. 1170 C.D. 2011

ORDER

AND NOW, this 29th day of December, 2011, the order of the Workers' Compensation Appeal Board (WCAB), dated June 3, 2011, is reversed to the extent that the WCAB reversed the reinstatement of benefits as of January 29, 2008.

ROCHELLE S. FRIEDMAN, Senior Judge


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