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Michael Sladisky v. Workers' Compensation Appeal

May 15, 2012

MICHAEL SLADISKY, PETITIONER
v.
WORKERS' COMPENSATION APPEAL
BOARD (ALLEGHENY LUDLUM
CORPORATION),
RESPONDENT



The opinion of the court was delivered by: Mary Hannah Leavitt, Judge

: Argued: November 15, 2011

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge (P.) HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY JUDGE LEAVITT*fn1

Michael Sladisky (Claimant) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) denying his reinstatement petition. In doing so, the Board reversed the Workers' Compensation Judge's (WCJ) decision that Claimant was entitled to a reinstatement of total disability benefits because his light-duty job, funded by Allegheny Ludlum Corporation (Employer) with another employer, had ended.*fn2 The Board held that Claimant had received the maximum 500 weeks of partial disability benefits for his work injury and was not entitled to an automatic reinstatement of total disability simply because his light-duty job ended. Rather, Claimant had to prove that his physical condition had worsened, rendering him incapable of doing the light-duty job he held when he exhausted his partial disability benefits. This is the same burden imposed on all claimants who have exhausted their 500 weeks of partial disability benefits and seek a reinstatement to total disability. Discerning no error in the Board's refusal to create an exception from this general rule for those claimants working in a light-duty position funded by the employer, we affirm.

The facts of this case are not in dispute. Claimant broke his right leg and left ankle at work in March 1994. Employer accepted liability for the injury by issuing a Notice of Compensation Payable. Initially, Claimant was totally disabled by his work injury, but in 1998 he returned to a light-duty job in

Employer's facility. The parties executed a series of supplemental agreements between October 1998 and May 2001, which adjusted the amount of his partial disability payments as the compensation for his modified-duty position with Employer changed. On May 16, 2001, Employer reinstated Claimant to total disability benefits when his 1994 work injury again disabled him.

On August 1, 2003, Claimant retired and began collecting a pension from Employer. Employer's Brief at 2. Claimant ceased to be a member of the union when he retired. Accordingly, Employer could not employ Claimant in any light-duty job in its facility.

Thereafter, Employer referred Claimant to Employment Alternatives, Inc. to find Claimant a light-duty job that met his physical limitations. Employer committed to fund the light-duty job. On August 8, 2005, Claimant was placed in a full-time, light-duty job with the Easter Seals Society of Western Pennsylvania.*fn3 When Claimant began his job at Easter Seals, Employer modified his total disability to partial at a weekly rate of $263.78, based upon his earnings from the Easter Seals job. Claimant did not challenge the modification. He worked for Easter Seals for over three years, collecting a salary and partial disability benefits.

On November 26, 2008, Claimant was laid off from the Easter Seals job. By that point, Claimant had received 500 weeks of partial disability benefits, which is the maximum allowable under Section 306(b)(1) of the Workers'

Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §512(1).*fn4 Claimant then filed a petition seeking reinstatement of his total disability benefits as of November 29, 2008. The matter was assigned to a WCJ for a hearing.

The parties submitted a stipulation of facts, and Claimant testified live before the WCJ. Claimant explained that his Easter Seals job required watching for and announcing the arrival of buses, setting up for lunch and doing paperwork for the organization. On November 26, 2008, the head of Employment

Alternatives told Claimant that his Easter Seals job was being terminated because Employer would no longer fund the position. Claimant testified that he would have continued working at Easter Seals had he not been laid off. The WCJ granted Claimant's reinstatement petition. A claimant seeking a reinstatement of total disability benefits after exhausting his 500 weeks of partial disability benefits must prove that he can no longer physically do the job he had when the 500 weeks expired. The WCJ found that Claimant could not meet that burden because he admitted that he was physically able to do the Easter Seals job. However, the WCJ concluded there should be an exception for Claimant because he was working in a funded employment position. The WCJ reasoned that light-duty jobs are tailored to the claimant's restrictions and do not show that the claimant "has an earning capacity on the open labor market." WCJ Decision, August 19, 2009, at 3; Finding of Fact 6. Accordingly, the WCJ applied the burden of proof applicable to a claimant whose partial disability benefits have not reached the 500-week maximum. In that case, the claimant is automatically reinstated to total disability when his light-duty job ceases to be available. Employer appealed, and the Board reversed. The Board held that the WCJ erred in creating an exception for a claimant working at a funded light-duty job when he reaches the 500-week maximum for partial disability. Instead, Claimant was required to satisfy the burden applicable to all claimants seeking reinstatement after exhausting their partial disability: he had to prove that his physical condition had worsened so that he could no longer do the Easter Seals job. Claimant failed to meet that burden and, thus, was not entitled to a reinstatement. Claimant now petitions for this Court's review.*fn5

Claimant raises one issue for our consideration, namely, that the Board erred in reversing the WCJ's award of total disability benefits. Claimant contends that where a claimant has exhausted his 500 weeks of partial disability while working at a funded employment position, the claimant should be automatically returned to total disability when the employer stops funding the position. Claimant does not argue that his funded employment position at Easter Seals tolled the 500-week limit to partial disability. Had Employer continued to fund the Easter Seals position, Claimant acknowledges that his partial disability would have ended after 500 weeks. However, Claimant argues that whenever a funded position ends, either before or after 500 weeks of partial disability, the claimant is entitled to an automatic reinstatement of full disability.

There are different burdens of proof for reinstating total disability benefits, depending on whether the claimant has exhausted his 500 weeks of partial disability benefits. Prior to 500 weeks elapsing, a partially disabled claimant can reinstate to total disability benefits by showing that his earning power is once again adversely affected by his work injury, and he need not show his physical condition has worsened. Dillon v. Workmen's Compensation Appeal Board (Greenwich Collieries), 536 Pa. 490, 503-04, 640 A.2d 386, 392-93 (1994). Such a claimant is entitled to total disability benefits if he is laid off when the employer eliminates his light-duty job. Bethlehem Steel Corp. v. Workers' Compensation Appeal Board (Laubach), 563 Pa. 313, 321-22, 760 A.2d 378, 383 (2000).

A claimant faces a more difficult burden of proof after he has exhausted 500 weeks of partial disability benefits. In Stanek v. Workers' Compensation Appeal Board (Greenwich Collieries), 562 Pa. 411, 756 A.2d 661 (2000), our Supreme Court held that a post-500-week claimant must establish his total disability by precise and credible evidence of a more definite and specific nature than that required to obtain compensation initially or modification within the 500-week period.

Stanek, 562 Pa. at 425, 756 A.2d at 668. Specifically, the claimant must show "a worsening of [his] medical condition." Id. Where a claimant has exhausted his 500-week partial disability and seeks reinstatement to total disability, he must prove that his increased, work-related impairment has precluded continuation of such light-duty employment. The burden to prove the availability of employment consistent with the claimant's physical limitations will then shift to the employer.

Id. at 426, 756 A.2d at 669 (emphasis added). Simply, after exhaustion of partial disability, it is not enough to show that the light-duty job is no longer available. The claimant must show that he could no longer do the job because of an increased impairment.

Claimant admits that he cannot meet the Stanek burden of proof. However, Claimant argues for an establishment of an exception to the Stanek rule for those claimants working at funded employment. He believes this category of claimants should be automatically eligible for total disability benefits upon the elimination of their light-duty job. In support, Claimant cites General Electric Company v. Workers' Compensation Appeal Board (Myers), 578 ...


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