Campbell v. Workers' Compensation Appeal Board

FRIEDMAN, Judge,

dissenting.

To establish the right to reinstatement of workers’ compensation benefits following a suspension of those benefits, a claimant must demonstrate: (1) that through no fault of his own his earning power is once again adversely affected by his disability; and (2) that the disability which gave rise to his original claim continues. Pieper v. Ametek-Thermox Instruments Div., 526 Pa. 25, 584 A.2d 301 (1990). Here, the majority concludes that the Workers’ Compensation Appeal Board (Board) properly denied James Campbell’s (Claimant) reinstatement petition because, like the claimants in Inglis House v. Workmen’s Compensation Appeal Board (Reedy), 535 Pa. 135, 634 A.2d 592 (1993), Miller v. Workmen’s Compensation Appeal Board (Allied Aviation Services of PA), 156 Pa.Cmwlth. 235, 627 A.2d 824 (1993), appeal denied, 538 Pa. 617, 645 A.2d 1320 (1994), and Harle v. Workmen’s Compensation Appeal Board (Telegraph Press, Inc.), 540 Pa. 482, 658 A.2d 766 (1995), Claimant’s loss of earnings was unrelated to his disability. Unlike the majority, I believe that Claimant’s situation is distinguishable from that of the claimants in those cases, and I would conclude that Claimant has satisfied his burden here; thus, I respectfully dissent.

The majority correctly states that “[t]he sole issue before this court is whether a *1192claimant, 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.” (Majority op. at 1189.) Although the phrasing differs, the workers’ compensation judge (WCJ) considered this precise issue, which, as stipulated to by the parties, was to determine whether Claimant’s loss of earnings resulted through no fault of his own. Having determined that Claimant did not quit his job at Wackenhut Security (Wackenhut) voluntarily, but was forced to leave because of a lack of transportation,1 the WCJ properly recognized that Claimant was again totally disabled by the physical limitations resulting from his work injury and, thus, was entitled to a reinstatement of his benefits under section 413 of the Workers’ Compensation Act (Act).2 On appeal, the Board reversed the WCJ without addressing the issue agreed upon by the parties. Instead, the Board determined that, whether or not Claimant’s termination from his employment was voluntary, because Claimant left his job at Wackenhut for reasons unrelated to his work-related injury, the resulting loss of earnings likewise was not attributable to that work injury. The majority here accepts the Board’s analysis; however, given the issue before this court, I believe that the WCJ’s analysis was correct, and I do not agree that Inglis House, Miller or Harle dictate to the contrary.

We must determine whether a claimant suffering from residual work-related medical impairment is entitled to reinstatement of total disability benefits when the employment which gave rise to a suspension of those benefits ends. This requires a simple two-pronged test.

(1) The reason for the termination of employment must be established.

• If the claimant was forced to leave the employment for reasons directly related to his or her work-related medical impairment, the claimant is entitled to reinstatement of total disability benefits.
• If the claimant was dismissed from suitable, available work for cause, or if the claimant voluntarily abandoned such work, the claimant is not entitled to reinstatement of total disability benefits because the claimant will have failed to establish that the loss of earnings was through no fault of his or her own.
• If the claimant was forced to leave such work through no fault of his or her own (involuntarily), even where the reason for that departure is unrelated to the claimant’s residual medical problems, then

(2) Whether the claimant is capable of returning to his or her pre-injury work without restrictions must be determined.

• If the claimant is able to' return to such work despite any continuing work-related medical impairment, reinstatement of total disability benefits is unjustified, and the employer is entitled to a continued suspension of such benefits even absent a showing of job availability.
• If the claimant is unable to return to such work because of physical limitations stemming from the claimant’s work-related injury, then the claimant is entitled to reinstatement of total disability benefits unless there is a showing of job availability.

Applying this test, I would conclude that Claimant’s reinstatement petition should be granted because, unlike the claimants in Inglis House and Miller, the WCJ found that Claimant did not leave his job at Wackenhut voluntarily, and, unlike the claimant in Harle, Claimant was unable to return to his pre-injury work because of limitations imposed by his work-related injury. An analysis of these cases illustrates my point.

Inglis House is easily distinguished from the present case because, as the majority readily admits, the claimant in Inglis House *1193voluntarily quit available, alternative employment.3 Thus, in that ease, the claimant could not prevail because she failed to show that her earning power was adversely affected by her disability through no fault of her own. In contrast to the situation in Inglis House, the WGJ here found that Claimant did not leave Wackenhut voluntarily; rather, he was forced to leave by circumstances which were not his fault and which made that job unavailable to him.

In Miller, the claimant suffered a work-related injury and received benefits from her employer until she was able to return to her pre-injury job. The claimant subsequently left that employment to take a position with K-Mart Corporation (K-Mart). After a recurrence of her disability, during which she received total disability benefits from her original employer, the claimant’s benefits were suspended when she returned to K-Mart without a loss of wages but with residual physical impairment. The claimant then left K-Mart to take a position with Giuseppe Ristorante for higher wages; however, she quit that job because she feared for her safety. After securing other employment, the claimant filed a reinstatement petition seeking total disability benefits for the period of unemployment after she left her job with Giuseppe Ristorante until she began her new job.

The referee denied the claimant’s reinstatement petition, concluding that her loss of earnings was due to her voluntary quit for reasons unrelated to her injury. In finding that the claimant voluntarily quit suitable, available work, the referee specifically considered that, while the claimant may have sustained a loss of earnings after leaving the job at Giuseppe Ristorante, that loss of earnings really stemmed her voluntarily quitting her job at K-Mart.4 Thus, as in Inglis House, Miller involved a voluntary quit of an available job, rather than a situation, as here, where Claimant left his job involuntarily when it became unavailable,5

*1194Harle involved a situation where a claimant who worked as a pressman sustained a work-related injury. Subsequently, despite residual medical problems, he was released to return to duty with no restrictions; however, the employer went out of business, and the claimant was laid off before he was able to return to work. Shortly thereafter, on his own initiative, the claimant found a job as a pressman at wages lower than his time-of-injury wage. The employer filed a termination petition, which the WCJ granted and the Board affirmed.

However, this court reversed, reasoning that the claimant was entitled to partial disability benefits because he had a demonstrable continuing medical disability warranting suspension, and because the employer had failed to establish that appropriate work was available. The supreme court affirmed our holding that where a claimant can return to work without restriction, but with a continuing medical disability, a suspension, rather than a termination, is proper. However, the supreme court reversed this court with regard to the claimant’s entitlement to partial disability benefits. The court concluded that by obtaining Work in his pre-injury occupation as a pressman, albeit at a lower wage, the claimant had obviated the employer’s need to produce evidence of job availability and had established that the discrepancy in wages, that is, his loss of earnings, was due to his layoff and not his work-related injury.

Clearly then, Harle is also distinguishable from the situation presented here. In Harle, the claimant had a residual medical disability but was able to return to his pre-injury work without restriction.,6 albeit with a different employer at lower pay. Under these circumstances, our supreme court determined that the reason for the loss of earnings was unrelated to any work-related disability; however, the circumstances here are very different. There is no dispute that Claimant was unable to perform his time-of-injury job; in fact, it was because Employer had no jobs available for Claimant within his physical restrictions that Claimant was placed in the part-time, limited duty position at Waeken-hut, a company located 70 miles roundtrip from Claimant’s home.7

*1195Finally, I believe that the majority gives short shrift to Dillon v. Workmen’s Compensation Appeal Board (Greenwich Collieries), 536 Pa. 490, 640 A.2d 386 (1994), by stating simply that “[b]ecause Claimant is not arguing that his disability has affected his earning power, Dillon does not support Claimant’s argument.” (Majority op. at 1190 n. 4.) I must disagree with this undeserved dismissal of Dillon.

In Dillon, the claimant argued that he was entitled to reinstatement of total disability because he was unable to obtain any work within the physical restrictions caused by his work-related injury. Our supreme court agreed and concluded that, because the findings that the claimant was able to perform sedentary work but that no work of this type was available to him were supported by substantial evidence, the claimant was entitled to an award of compensation for total disability. Similarly, Claimant here argues that he is entitled to reinstatement of total disability because, as a result of his transportation problems, there is no longer any work available to him within the physical restrictions imposed by his work-related injury. As in Dillon, the record here provides substantial evidence to support the WCJ’s findings that Claimant was again totally disabled as a result of his work injury when his limited duty job was rendered unavailable to him through no fault of his own. Therefore, I believe that Dillon fully supports Claimant’s argument and that the majority here has miscast Claimant’s argument in an attempt to avoid Dillon’s impact.

In sum, although Claimant may have left his job at Wackenhut for reasons that were unrelated to his work injury; that alone is not determinative of his entitlement to a reinstatement of total disability benefits. Here, the WCJ properly found that Claimant did not voluntarily quit his job but was forced to leave through no fault of his own. In addition, it has been established that Claimant is unable to resume his pre-injury work due to his work-related disability, so that Claimant’s resulting loss of earning power is once again adversely affected by and attributable to that continuing disability. Thus, because Claimant has satisfied his burden under Pieper and demonstrated that he is entitled to a reinstatement of his total disability benefits, I would reverse the Board and reinstate the WCJ’s decision.

. Claimant and his wife divorced, and, pursuant to a court order, Claimant’s wife received the couple’s only car.

. Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 772. Under Pennsylvania law, "disability,” for purposes of the Act, has long been considered synonymous with loss of earning power. Harle.

. In Inglis House, the claimant, who worked as a nursing assistant, filed a claim petition alleging a January 3, 1987 work-related back injury and entitlement to total disability benefits based on that injury. While her claim petition was still pending, the claimant found alternative employment in a modified position from October 17, 1988 until March 11, 1989. When the referee finally issued his decision on the claim petition, in June of 1989, the claimant was awarded total disability benefits from January 3, 1987, the date of the injury, through October 16, 1987. The claimant received partial benefits thereafter, reflecting the reduction of claimant’s total benefits by the earnings from her alternative job. Although that alternative employment had ended on March 11, 1989, the referee concluded that the claimant was not entitled to a resumption of total disability benefits on that date. The referee based that decision on findings that the claimant was physically able to perform work that, obviously, was available to her, but that she had voluntarily abandoned, that employment. The Board reversed and this court affirmed; however, our supreme court reinstated the referee’s decision.

. With regard to the position at K-Mart, the referee found that the claimant never terminated or was laid off from that position due to her work-related injury, evidence which "established that there was suitable work available to and within her reach which she was capable of obtaining.” Miller, 627 A.2d at 825 n. 2, quoting the referee's findings of fact.

On appeal to this court, the claimant argued that she was entitled to a reinstatement of benefits because she left her employment with Giuseppe Ristorante for necessitous and compelling reasons, so that her loss of earnings was not her fault. However, the claimant's argument was misdirected because it is apparent that the referee did not base his decision to deny a reinstatement of total disability benefits on a finding that the claimant voluntarily left the job at Giuseppe Ristorante. To the contrary, the denial of the claimant’s reinstatement petition was based on the fact that she voluntary quit her K-Mart job. Although the referee found that the claimant quit her job at Giuseppe Ristorante for reasons unrelated to her injury, he never determined whether the claimant left that position voluntarily, see Miller, 627 A.2d at 825 n. 2; it was because the claimant voluntarily quit an available position with K-Mart that her later loss of earnings, when she left Giuseppe Ristorante, was deemed unrelated to her disability.

.Further, I note that, in affirming the denial of the claimant’s reinstatement petition in Miller, we point out that the claimant never contended that she was physically unable to perform any of her previous jobs. Indeed, we likened the claimant in Miller to the claimant in Frankford Hospital v. Workmen's Compensation Appeal Board (Burns), 150 Pa.Cmwlth. 532, 616 A.2d 79 (1992), who continued to work for her employer after contracting Hepatitis B and suffered a loss of earnings only when she voluntarily quit to relocate. In Frankford, we held that there was a rebuttable presumption that the claimant could *1194perform jobs similar to her prior job and her loss of earnings resulted only from her voluntarily choosing to quit her job. Referring to this holding, we said that the claimant in Miller was subject to a similar rebuttable presumption because, despite a residual physical disability, she too had returned to her former job and had moved on to other jobs before voluntarily quitting, and there was no reason to believe that she could not have again returned to her pre-injury job.

In contrast, Claimant here did not voluntarily choose to quit his job at Wackenhut; rather, he was unable to continue when the position was rendered unavailable to him because of the lack of both private and public transportation to get to a job in that location. Moreover, far from being subject to the presumption that he could return to his pre-injury work, there is no dispute that Claimant’s physical limitations precluded him from performing his prior job with Employer.

. Similarly, in USX Corp. v. Workmen's Compensation Appeal Board (Hems), 167 Pa.Cmwlth. 19, 647 A.2d 605 (1994), and Columbo v. Workmen's Compensation Appeal Board (Hofmann Industries, Inc.), 162 Pa.Cmwlth. 307, 638 A.2d 477 (1994), both of which are cited by the majority to support its decision, we held that the employer was entitled to a suspension of benefits without having to prove work availability where, following the work injury, the claimant was capable of returning to his regular job despite some medical residuals, but a non-work-related medical condition prevented him from doing so. In those cases, because the claimant could have returned to his pre-injuiy job but for the unrelated medical condition, we held that the loss of earning power was due solely to the unrelated medical condition, and, thus, the employer was entitled to suspension even without a showing of job availability. However, I note that, like the claimant in Harle, the claimants in USX and Columbo could have returned to their pre-injury work but for the non-work-related condition or circumstance. That is not the case here. It is not the unrelated circumstance, that is, the lack of transportation, which prevents Claimant from returning to his time-of-injuiy position; rather, it is because Claimant’s work-related physical limitations prevent him from performing such work. Indeed, it was only the need for light duty work to accommodate his work-related disability that put Claimant in the position of working so far from home in the first place.

. That the rationale in Harle depends upon the ability of the claimant to return to or obtain employment in his pre-injury position is made apparent in Trumbull v. Workmen’s Compensation Appeal Board (Helen Mining Co.), 683 A.2d 342 (Pa.Cmwlth.1996). In Trumbull, we relied on Harle for the proposition that an employer is entitled to a continuing suspension without demonstrating job availability where the claimant was able to return to his pre-injury job with resid*1195ual medical impairment but suffered a loss of earnings when he was laid off from that position. However, we stressed that an employer must still establish job availability if the claimant first establishes that his work-related injury prevents him from returning to his pre-injury position without restrictions. Trumbull. That is the situation in this case.