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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Larry Fuller, : Petitioner : : v. : : Workers' Compensation Appeal Board : (Henkels & McCoy), : Respondent : : Henkels & McCoy, : Petitioner : : v. : : Workers' Compensation Appeal Board : (Fuller), : Respondent : BEFORE:

No. 1819 C.D. 2010

No. 2060 C.D. 2010 Submitted: April 15, 2011

HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN FILED: May 27, 2011

Larry Fuller (Claimant) petitions for review of the August 31, 2010, order of the Workers' Compensation Appeal Board (WCAB) to the extent that it affirms the decision of the workers' compensation judge (WCJ) to grant the petition for suspension filed by Henkels & McCoy (Employer). Employer petitions for

review of the August 31, 2010, order to the extent it affirms the WCJ's denial of Employer's termination petition. We affirm.

On August 10, 2006, Claimant sustained a work injury while working for Employer as a pipeline welder. Claimant received workers' compensation

benefits pursuant to a notice of compensation payable that described the work injury as a right knee sprain. In February 2008, Employer filed a termination petition, alleging that Claimant had recovered from the work injury. In July 2008, Employer filed a suspension petition, alleging that Claimant had removed himself from the workforce by retiring. Claimant filed responses, denying the allegations, and the matters were assigned to a WCJ.

At the hearings, Claimant testified as follows. He weighs 346 pounds and suffers from numerous non-work-related medical problems, including: diabetes with neuropathy, foot problems related to gout, back pain, left ankle pain, a prior injury to his medial meniscus, sleep apnea, a lung nodule, chronic obstructive pulmonary disease and congestive heart failure. Except for the heart condition, Claimant's medical problems were diagnosed prior to this work injury. Claimant has used his sleep apnea, diabetes and congestive heart failure as an excuse to be relieved from jury duty. (WCJ's Findings of Fact, Nos. 1-2.)

Claimant receives a pension related to his pipeline work.1 Claimant applied for the pension because he was close to losing medical insurance for himself

Claimant testified that he receives a union pension and that, on the pension application, he indicated that he was retiring because he was not able to go back to work. (N.T., 5/27/08, at 22-23, R.R. at 32a-33a.) Claimant later testified that he had retired. (N.T., 10/14/08, at 28-29, R.R. at 67a68a.)

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and his wife.2 Claimant also receives federal social security disability benefits based on the combination of his medical problems. Claimant is willing to return to work if necessary to avoid losing his workers' compensation benefits.3 Claimant did not begin to apply for jobs until his attorney told him about the requirements of workers' compensation law. However, Claimant did not know if he could actually perform the jobs for which he applied. (WCJ's Findings of Fact, No. 2.)

Employer offered the medical testimony of Douglas Brown, M.D., who examined Claimant on October 2, 2007. Claimant told Dr. Brown that he considered himself to be retired because of his heart problems.4 Based on his examination of Claimant, Dr. Brown opined that, with respect to the work injury, Claimant had reached maximum medical improvement and Claimant's right knee would never be as it was before the work injury, but that Claimant could return to his pre-injury job without restrictions. (WCJ's Findings of Fact, No. 3.)

Claimant testified that he was entitled to medical insurance for twelve months after his injury, and he applied for the pension one month before the medical insurance expired. (N.T., 10/14/08, at 50-51, R.R. at 89a-90a.) Taking the pension allowed him to continue having medical insurance. (Id.) Claimant testified that he could only expect to get minimum wages where he lives, and then "I guess you get knocked off Social Security or whatever. Then you wouldn't be drawing

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