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IN THE COMMONWEALTH COURT OF PENNSYLVANIA John Petrovich, Petitioner v. Workers' Compensation Appeal Board (Consol PA Coal Company), Respondent : : : : : : : No. 538 C.D. 2008 : Submitted: October 10, 2008

BEFORE:

HONORABLE DAN PELLEGRINI, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JOHNNY J. BUTLER, Judge

OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE BUTLER

FILED: December 8, 2008

John Petrovich (Claimant) petitions for review of the February 28, 2008 order of the Workers' Compensation Appeal Board (Board) reversing the April 17, 2007 order of the Workers' Compensation Judge (WCJ) which granted Claimant's claim petition. Claimant argues that the WCJ's decision that he met his burden of proof is supported by substantial evidence. We disagree. Claimant injured his low back on May 1, 1991 while working as a mine foreman for Consol PA Coal Company (Employer). He reinjured his back in a work-related vehicle accident on July 30, 1992. Claimant went through five surgeries on his back between May 1, 1991 and October 31, 2005. Claimant received total disability benefits after his July 30, 1992 injury, but those benefits

were modified to partial disability benefits in October 1996 because the WCJ found that there was available work that Claimant was physically capable of doing. Claimant received 500 weeks of partial disability benefits through November 12, 2004.1 During the time Claimant was receiving disability, he worked as a parttime golf coach for the local community college. He resigned from that position in February 1999, and has not worked since then. Claimant filed for reinstatement of benefits in December 2005 alleging his condition had worsened. Claimant offered the testimony of Alexander Kandabarow, M.D., a board-certified physician in orthopedic surgery, and Employer offered the testimony of Paul Lieber, M.D., a board-certified physician in rehabilitation and physical medicine. The WCJ concluded that Claimant had met his burden of proof, noting that Claimant underwent surgery in October 2005 and could not work due to his pain and use of medication, and reinstated Claimant's total disability benefits. Employer appealed, and the Board reversed the WCJ's order, finding that Claimant presented insufficient evidence to prove total disability from the work force. Claimant appealed.2 In Stanek v. Workers' Comp. Appeal Bd. (Greenwich Collieries), 562 Pa. 411, 756 A.2d 661 (2000), the Pennsylvania Supreme Court established the

Partial disability benefits are paid to a claimant "during the period of such partial disability . . . but for not more than five hundred weeks." Section 306(b)(1) of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S.

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