Campbell v. Workers' Compensation Appeal Board

PELLEGRINI, Judge.

James Campbell (Claimant) appeals an order of the Workers’ Compensation Appeal Board (Board) reversing the decision of the Workers’ Compensation Judge (WCJ) and denying his petition to reinstate his workers’ compensation benefits.

*1189The facts of this ease are not in dispute. Claimant suffered a low-back injury on September 30, 1991, while employed by Foamex Products, Inc. (Employer) located in Corry, Pennsylvania. Employer acknowledged the injury by Notice of Compensation Payable. Claimant returned to work on March 16, 1992, at his regular wages and benefits were suspended by Supplemental Agreement. Two days later, Claimant’s disability recurred and temporary total disability benefits were reinstated. Apparently because Employer had no jobs available for Claimant within his physical limitations, Employer engaged in a job search for Claimant. Employer found a limited duty, part-time job for Claimant at Wackenhut Security (Wacken-hut) in Erie, Pennsylvania.

Because Claimant lived in Corry, Pennsylvania, he had to drive 70 miles roundtrip to work at Wackenhut. Soon after Claimant began that job, he and his wife divorced and his wife took possession of their only car. Because Claimant had no transportation to get to work, he quit his job at Wackenhut with his last day of work being August 7, 1995. Claimant then filed a petition for reinstatement of temporary total disability benefits alleging that he could no longer be employed at Wackenhut through no fault of his own. Employer filed an answer denying that allegation and, instead, argued that Claimant was not entitled to reinstatement of his benefits because he quit his job due to lack of transportation which was unrelated to his disability. At the hearing, the parties stipulated that the only issue was whether Claimant’s loss of earnings resulted through no fault of his own in order to reinstate his benefits under Section 413 of the Workers’ Compensation Act (Act).1

The WCJ found that Claimant did not voluntarily quit his job at Wackenhut and through no fault of his own he was again totally disabled as a result of his September 30, 1991 work injury. The WCJ reasoned that because Claimant’s wife received the family vehicle upon their divorce, his loss of transportation made the job in Erie unavailable to him. On appeal, the Board reversed determining that Claimant’s termination from his employment, whether voluntary or not, was for reasons unrelated to his work injury and his loss of earnings was not attributable to his work-related injury. This appeal by Claimant followed.2

The sole issue before this court is whether a claimant, who continues to be disabled, is entitled to reinstatement of benefits when he quits suitable alternative employment because his sole source of transportation is no longer available and the work is too far from his residence to allow him to utilize public transportation.

Claimant argues that the issue should be resolved not on whether his loss of earning power is due to his disability, but on whether his loss of earning power is due to lack of transportation. To support this contention, he cites DME Company v. Workmen’s Compensation Appeal Board (Peters), 162 Pa.Cmwlth. 418, 639 A.2d 869 (1994), where a claimant with residual disability but able to return to work was awarded benefits because a job offered to him was not “available” because he lacked adequate transportation to get there. In effect, Claimant is arguing that the same standard for job availability set forth in Kachinski v. Workmen’s Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987),3 *1190should be used to determine whether reinstatement of benefits is appropriate after the job has been secured.4

However, in several cases involving that same question, our Supreme Court and this court have determined otherwise. In Inglis House v. Workmen’s Compensation Appeal Board (Reedy), 535 Pa. 135, 634 A.2d 592 (1993), claimant filed a claim petition alleging an injury and entitlement to total disability from her original employer even after she returned to full-time modified work with another employer without a loss of earning power but with some residual disability. She voluntarily quit that job and filed for reinstatement of total disability benefits alleging that she was entitled to benefits because her original employer did not prove work was available to her within her limitations. The Court explained that the employer did not have to prove work availability under Ka-chinski because claimant’s loss of earning power was not related to her disability:

In light of his findings that the claimant had engaged in full time employment for six months without pain, and had quit without good cause, the referee was entitled to conclude that the claimant’s loss of earning power after she left this employment was caused not by her injury but by her voluntary decision to abandon the employment. Since the burden of proof was on the claimant at this point, the Commonwealth Court erred in suggesting that the employer had faded to meet its burden of showing availability of employment pursuant to Kachinski.

Id., 535 Pa. at 142, 634 A.2d at 596.

While in Inglis House claimant voluntarily quit her suitable alternative employment, it has also been held that once a claimant has suitable alternative employment, any loss of earning power not related to the work-related injury does not justify reinstatement of total disability benefits.

In Miller v. Workmen’s Compensation Appeal Board (Allied Aviation Services of PA), 156 Pa.Cmwlth. 235, 627 A.2d 824 (1993), petition for allowance of appeal denied, 538 Pa. 617, 645 A.2d 1320 (1994), claimant suffered a work-related injury and returned to work at her previous job. She left that employment to begin a job with K-Mart Corporation. After a recurrence of her disability when she received total disability benefits from her original employer, benefits were suspended when she returned to K-Mart without a loss of wages but with residual disability. She subsequently left K-Mart and took a job with Giuseppe Ristorante to earn higher wages. She worked at that job for approximately ten months after which time she quit her job because she felt her safety was threatened by the actions of her superior. Because she quit for reasons unrelated to work injury and she did not contend that she quit her job due to any physical disability, we held that she was not entitled to reinstatement of benefits because her loss of earnings was not related to her disability.

More recently, in Harle v. Workmen’s Compensation Appeal Board (Telegraph Press, Inc.), 540 Pa. 482, 658 A.2d 766 (1995), our Supreme Court determined that when a claimant with a residual disability returned to work with a different employer without any loss in earning power and subsequently lost that job due to the business closing, even though the employer where claimant was injured did not prove job availability under Kachinski, claimant was not entitled to reinstatement of total disability benefits because the loss of earning power was unrelated to the disability.

*1191Citing to Section 306(b) of the Act5 which governs benefits for partial disability, the Court noted, “an employee whose earning power is no longer affected by his work-related injury is no longer entitled to partial disability benefits, even though his earnings may not match his pre-injury earnings.” Id., 540 Pa. at 488, 658 A.2d at 769. In reaching that holding, it relied on Section 306(b) of the Act which provides:

The term “earning power,” as used in this section, shall in no case be less than the weekly amount which the employe receives after the injury, and in those cases in which the employe works fewer than five days per week for reasons not connected with or arising out of the disability resulting from the injury shall not be less than five times his actual daily wage ...

Our Supreme Court further explained, “Thus if a worker is able to secure employment that, not because of limitations caused by the injury but for other reasons, is only part-time, his ‘earning power’ is calculated as though he were employed full-time.” Id., 540 Pa. at 488, 658 A.2d at 769.6

Once it is shown that a loss of earning power has nothing to do with a claimant’s work-related injury, reinstatement of total disability benefits is not proper and the employer is under no obligation to provide suitable alternative employment. In this case, the parties stipulated that Claimant quit his job because he lacked transportation, not because of any reason related to his disability. Like the claimants in Inglis House, Miller and Harle who could no longer work due to outside factors and it was determined that their loss of earning power was not related to their disability thereby disqualifying them from receiving benefits, Claimant’s quitting his job due to lack of transportation did not justify the reinstatement of his benefits because his loss of earning power was unrelated to his disability.

Accordingly, the decision of the Board is affirmed.

ORDER

AND NOW, this 25th day of February, 1998, the order of the Workers’ Compensation Appeal Board, dated July 24, 1997, No. A96-0730, is affirmed.

.Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 772. Section 413 of the Act provides in relevant part:

[W]here compensation has been suspended because the employe’s earnings are equal to or in excess of his wages prior to the injury that payments under the agreement or award may be resumed at any time during the period for which compensation for partial disability is payable, unless it be shown that the loss in earnings does not result from the disability due to the injury.

. Our scope of review is limited to determining whether constitutional rights were violated, an error of law committed, or whether necessary findings of fact were supported by substantial evidencé. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.

. In Kachinski, our Supreme Court held that when an employer wants to modify a claimant’s benefits, it must show that the claimant's condition has changed, it has provided referralfs) to a then-open job(s) that fits claimant’s limitations and that claimant has not in good faith followed *1190through on the referrals. Additionally, a job may be found to be available when claimant can perform it with regard to physical restrictions, age, intellectual capacity, education, prior work experience, and other relevant considerations such as place of residence.

. Claimant also cites Dillon v. Workmen's Compensation Appeal Board (Greenwich Collieries), 536 Pa. 490, 640 A.2d 386 (1994), for the proposition that a claimant is entitled to reinstatement of total disability benefits when work within his physical limitations is not available. However, in that case, our Supreme Court held that in order for a claimant who has been working at a modified job with a wage loss to have benefits reinstated, he must show that his disability continues and through no fault of his own his earning power is adversely affected by his disability. Because Claimant is not arguing that his disability has affected his earning power, Dillon does not support Claimant’s argument.

. 77 P.S. § 512.

. The requirement that the loss of earning power be related to the disability and that unrelated medical conditions do not justify reinstatement of total disability benefits was discussed in USX Corp. v. Workmen's Compensation Appeal Board (Hems), 167 Pa.Cmwlth. 19, 647 A.2d 605 (1994). In that case, claimant injured his thumb and had some residual disability but was capable of returning to his regular job. Prior to doing so, he suffered a non work-related brain abscess preventing him from returning to work. We held that his employer did not have to show work availability because the loss of earning power was not related to the work injury. See also Columbo v. Workmen's Compensation Appeal Board (Hofmann Industries, Inc.), 162 Pa.Cmwlth. 307, 638 A.2d 477 (1994).