Opinion
No. 2392 C.D. 2011
06-01-2012
Electralloy Corp. and State Workers' Insurance Fund, Petitioners v. Workers' Compensation Appeal Board (Kelly), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Electralloy Corp. (Employer) and State Workers' Insurance Fund (collectively Fund) appeal the Workers' Compensation Appeal Board's (Board) November 30, 2011 order affirming the Workers' Compensation Judge's (WCJ) order granting William Kelly's (Claimant) Petition to Reinstate Compensation Benefits (Reinstatement Petition), and directing the Fund to reinstate Claimant's total disability benefits beginning October 28, 2008. There are two issues before the Court: (1) whether the Board and the WCJ committed an error of law by granting Claimant's Reinstatement Petition where the evidence of record clearly establishes that he was terminated from his employment for cause; and (2) whether the WCJ and the Board held Employer to the wrong standard of proof. We affirm.
On July 29, 1987, Claimant suffered an injury at work that resulted in various periods of total and partial disability benefits over the years. On June 16, 2008, a Supplemental Agreement was entered into, wherein, Claimant's compensation benefits were modified to $24.30 per week beginning on May 27, 2008 because he obtained a job with Matric Limited (Matric). On July 11, 2008, Claimant was terminated from that position because he was not learning how to do the job correctly or fast enough, and he was making too many mistakes. On or about July 22, 2008, Employer filed a Notification of Suspension or Modification to adjust Claimant's benefits to $30.97 per week beginning July 21, 2008 because he returned to work at Spherion Fall Protection at earnings less than his time-of-injury job. He was laid off from that job at the end of September.
On or about October 3, 2008, Employer filed a second Notification of Suspension of Modification suspending Claimant's benefits as of October 1, 2008 because Claimant had returned to work at Venango Steel at earnings equal to or greater than his time-of-injury job. On December 11, 2008, Claimant filed a Reinstatement Petition alleging that, as of October 28, 2008, Claimant was laid off due to lack of work. Hearings were held before the WCJ on January 29, 2009, and April 9, 2009. On November 2, 2009, the WCJ granted Claimant's Reinstatement Petition finding that Claimant became unemployed through no fault of his own, and he continued to suffer residual disability as a result of his original work injury. The Fund appealed to the Board. On November 30, 2011, the Board affirmed the WCJ's decision. The Fund appealed to this Court.
"This Court's scope and standard of review of an order of the Board is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether Board procedures were violated, whether constitutional rights were violated or an error of law was committed." World Kitchen, Inc. v. Workers' Comp. Appeal Bd. (Rideout), 981 A.2d 342, 346 n.5 (Pa. Cmwlth. 2009).
The Fund argues that the Board and the WCJ committed an error of law by granting Claimant's Reinstatement Petition where the record evidence clearly establishes that he was terminated from his employment with Matric for cause. In addition, the Fund contends that the Board and the WCJ held Employer to the wrong burden of proof. We disagree.
The Pennsylvania Supreme Court has clarified the correct burden of proof in reinstatement of suspended benefits cases as follows:
A claimant seeking reinstatement of suspended benefits must prove that his or her earning power is once again adversely affected by his or her disability, and that such disability is a continuation of that which arose from his or her original claim. The claimant need not re-prove that the disability resulted from a work-related injury during his or her original employment. Once the claimant meets this burden, the burden then shifts to the party opposing the reinstatement petition. In order to prevail, the opposing party must show that the claimant's loss in earnings is not caused by the disability arising from the work-related injury. This burden may be met by showing that the claimant's loss of earnings is, in fact, caused by the claimant's bad faith rejection of available work within the relevant required medical restrictions or by some circumstance barring receipt of benefits that is specifically described under provisions of the Act or in this Court's decisional law.Bufford v. Workers' Comp. Appeal Bd. (N. Am. Telecom), 606 Pa. 621, 637, 2 A.3d 548, 558 (2010). The Fund contends that Claimant's employment termination from Matric for poor job performance was sufficient evidence to meet its burden. However, in Bufford, the Court specifically referred to the case of Stevens v. Workers' Compensation Appeal Board (Consolidation Coal Co.), 563 Pa. 297, 760 A.2d 369 (2000), wherein, that exact argument was raised. The Bufford court stated:
[W]e reexamined Section 413(a) [of the Workers' Compensation Act] in a case where a claimant had not fully recovered from his work-related injury and, while working for a different employer, was terminated from
employment for unsatisfactory job performance. We affirmed the Pieper standard; however, in so doing, we rejected the employer's interpretation of that standard's concept of 'through no fault of his own.' The employer asserted that this concept required that a request for reinstatement of suspended benefits be denied where the claimant is terminated from different employment based on unsatisfactory job performance. The employer's argument was based on the premise that the claimant's loss of earnings should not be attributable to the work-related injury but to the claimant's 'fault' of not performing his new employment within required expectations. We explained that we did not intend in Pieper that 'the judicial construct' of 'fault' be used in the manner argued by the employer. Rather, we stated, 'in Pieper, we indicated that the fault concept was tied to the availability of work.'Id., 606 Pa. at 628, 2 A.3d at 552 (citation and footnote omitted). Thus, the Fund's argument that Claimant's employment termination from Matric for poor job performance prevents him from receiving benefits must fail. "'[A]s a general rule, where a work-related disability is established, a post-injury involuntary discharge should be considered in connection with the separate determination of job availability rather than as dispositive of loss of earnings capacity.'" Id., 606 Pa. at 628, 2 A.3d at 552-53 (quoting Stevens, 563 Pa. at 310, 760 A.2d at 376-77) (emphasis deleted). Here, it is undisputed that after Claimant's employment termination from Matric, he almost immediately obtained employment with Spherion Fall Protection and then Venango Steel. In addition, the Fund does not challenge that Claimant's employment separation from both Spherion Fall Protection and Venango Steel was not due to the lack of good faith in his efforts to perform the job; nor is there any question that Claimant's work-related injury prevented him from returning to his prior job with Employer. Thus, Claimant met his burden of proof to establish that his work-related injury continues and that his earning power was once again adversely affected by his injury through no fault of his own. Accordingly, the Board did not err in granting Claimant's Reinstatement Petition.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 772.
Pieper v. Ametek-Thermox Instruments Div., 526 Pa. 25, 584 A.2d 301 (1990). --------
For all of the above reasons, the Board's order is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 1st day of June, 2012, the Workers' Compensation Appeal Board's November 30, 2011 order is affirmed.
/s/_________
ANNE E. COVEY, Judge