Preview:

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Milton Thomas, : Petitioner : : v. : : Workers' Compensation Appeal Board : (Health Care Business Resources), : Respondent : BEFORE:

No. 1565 C.D. 2002 Submitted: September 20, 2002

HONORABLE BERNARD L. McGINLEY, Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge FILED: October 30, 2002

OPINION BY SENIOR JUDGE McCLOSKEY

Milton Thomas, Jr., (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) which affirmed the grant of a claim petition by a Workers' Compensation Judge (WCJ) but reversed the decision of the WCJ by suspending benefits based on Claimant's ability to perform a light-duty job. For the reasons that follow we vacate and remand in part. On December 8, 1999, Claimant filed a claim petition alleging he suffered back, knee and ankle injuries when he fell to the ground while installing cable lines in a ceiling for Health Care Business Resources (Employer). On December 10, 1999, Employer filed a temporary notice of compensation payable and requested that Claimant return to modified work on December 13, 1999. On December 13, 1999, Employer filed a notice stopping temporary compensation and a notice of compensation denial.

Following hearing and deposition testimony, the WCJ found that Claimant sustained his burden of proving an entitlement under the Workers' Compensation Act (Act).1 The WCJ held, in pertinent part, as follows: Because Employer did not accept Claimant's work injury as compensable, Claimant was under no obligation to respond to the offer of sedentary duty employment made by Employer on December 13, 1999. Smith v. WCAB (Saunder's House), 732 A.2d 18; 1999 (Pa. Commw. 1999). Should the standards of Kachinski apply, however, Employer's conduct in filing a Notice of Compensation Denial on the same date as the job offer constitutes bad faith. (Appellant's brief Appendix A, WCJ Conclusion of Law No. 4). On April 11, 2001, the WCJ granted Claimant's claim petition from the period beginning November 24, 1999. Benefits were not suspended even though the WCJ found that a job was available and within the Claimant's physical capabilities as of December 13, 1999. Employer then appealed to the Board, alleging that the WCJ erred by relying on Smith v. Workers' Compensation Appeal Board (Saunder's House), 732 A.2d 18 (Pa. Cmwlth. 1999), petition for allowance of appeal denied, 561 Pa. 682, 749 A.2d 474 (2000), when deciding that Claimant had no obligation to accept an offer of suitable employment. Employer argued that Smith had been effectively overruled by the Pennsylvania Supreme Court in Vista International Hotel v. Workmen's Compensation Appeal Board (Daniels), 560 Pa. 12, 742 A.2d 649 (1999). The Board agreed with Employer. As the WCJ had determined that Employer had offered Claimant a job that met Claimant's medical restrictions and that Claimant failed to respond to the job offer, the Board found that the WCJ erred
1

Act of June 2, 1915, P.L. 736, as amended, 77 P.S.

Download 1565cd02-10-30-02.pdf

Pennsylvania Law