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Keene v. Workers' Compensation Appeal Board (Ogden Corporation)

Commonwealth Court of Pennsylvania

June 4, 2014

Frances Keene, Petitioner
v.
Workers' Compensation Appeal Board (Ogden Corporation), Respondent

Submitted: April 25, 2014.

Page 898

Appealed from No. A09-0285. State Agency: Workers' Compensation Appeal Board.

Daniel K. Bricmont, Pittsburgh, for petitioner.

Sandra L. Alven, Pittsburgh, for respondent Ogden Corporation.

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge. OPINION bye SENIOR JUDGE FRIEDMAN.

OPINION

Page 899

ROCHELLE S. FRIEDMAN, Senior Judge

Frances Keene (Claimant) petitions for review of that portion of the June 29, 2010, order of the Workers' Compensation Appeal Board (WCAB), which reversed the decision of the workers' compensation judge (WCJ) to deny Ogden Corporation's (Employer) suspension petition. We reverse.

In 1989, Claimant sustained a work-related injury to her right knee when she slipped on the step of an airport passenger shuttle she was operating for Employer. Claimant has undergone knee replacement surgery, has reached maximum medical improvement, and is able to perform only full-time, sedentary work. She has a high school education and no additional training, education, or experience operating a cash register or computer. (WCJ's Findings of Fact, Nos. 3-4.)

Following her knee surgery in 1995, Claimant began looking in the newspaper for suitable work. Claimant received leads on jobs and applied for all of them, but she was not hired. Subsequently, in 2001 or 2002, Claimant worked a light-duty job with Employer for two years until Employer eliminated the position. Claimant did not receive any job referrals from Employer after her position was eliminated. Thereafter, Claimant applied for jobs with several rental car agencies and Wal-Mart, but she was not hired. She continued to search the newspaper for work and began searching for positions on the Comcast job search website. (WCJ's Findings of Fact, No. 3; WCAB's Decision, 6/29/10, at 3.)

On October 9, 2007, Employer filed a suspension petition alleging that Claimant has voluntarily removed herself from the work force. After Employer filed the petition, Claimant applied for work as a driver at two rental car companies, but she was not hired. (WCJ's Findings of Fact, Nos. 1, 3(g).)

Employer's suspension petition was assigned to a WCJ, who held hearings on the matter. Claimant testified in opposition to the petition regarding her attempts to obtain employment within her physical capabilities, education, training, and experience. Claimant also testified that she is not receiving a pension and has never submitted a retirement statement to Employer, but she does receive social security disability benefits.[1] (WCJ's Findings of Fact, No. 3.) After considering the evidence, the WCJ accepted Claimant's testimony that she has been actively seeking employment and found that Claimant has not voluntarily removed herself from the workforce. ( Id., No. 6.) Thus, the WCJ denied Employer's suspension petition.

Employer appealed to the WCAB, arguing that the WCJ erred in finding that Claimant has not voluntarily removed herself from the workforce. The WCAB agreed and reversed. In doing so, the WCAB placed the burden on Claimant to prove " that she did not ...


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