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Emerick v. Workers' Compensation Appeal Board12/5/2002
Donald E. Emerick Sr. (Claimant) appeals from an order of the Workers' Compensation Appeal Board (Board) that affirmed the Workers' Compensation Judge's (WCJ) denial of Claimant's petition to reinstate benefits. The WCJ and the Board found that Claimant failed to meet his burden of proving that his work injury continues and his loss of earnings is related to an injury he suffered while employed by the Dana Corporation (Employer). We affirm.
Claimant sustained a herniated disc while lifting a fixture in the course of his employment as a welder. Later that year, he returned to restricted duty; the next month, he returned to his regular duty job with restrictions on lifting and a prohibition on overtime.
Three years later, Employer filed suspension and termination petitions. The WCJ suspended Claimant's partial disability benefits concluding that he recovered from his injuries and was capable of performing all aspects of his regular duty job, including overtime. WCJ Op. of May 1, 1998.
Claimant worked in his pre-injury position without restriction for two years. In June 2000, Claimant was laid off when Employer closed its plant. Subsequently, he filed a reinstatement petition asserting his injury caused a decrease in his earning power.
After a hearing, the WCJ denied reinstatement concluding that Claimant failed to prove (i) that his work injury continued, and (ii) that his loss of earnings was related to the work injury. The WCJ determined that Claimant returned to his pre-injury position prior to his layoff, and found that his loss of earnings was solely caused by the closure of Employer's plant. The Board affirmed. Claimant now appeals to this Court.
Claimant asserts that the WCJ erred because Employer failed to prove work was available within Claimant's physical restrictions. However, such proof was unnecessary.
A Claimant seeking reinstatement following a suspension of benefits must prove that (i) through no fault of his or her own, the Claimant's earning power is again adversely affected by the work-related injury, and (ii) the disability that gave rise to the original claim continues. Pieper v. Ametek Thermox Instruments, 526 Pa. 25, 584 A.2d 301 (1990).
In McKay v. Workmen's Comp. Appeal Bd. (Osmolinski), 688 A.2d 259 (Pa. Cmwlth. 1997), this Court stated that:
here a claimant returns to work under a suspension, without restriction, to his or her pre-injury job, is subsequently laid off, and then petitions for reinstatement, the claimant has the burden to affirmatively establish that it is the work-related injury which is causing his or her present loss of earnings. That is, while the claimant still enjoys the presumption that some work-related medical injury continues, the claimant is not entitled to the presumption that his or her present disability, i.e. loss of earnings, is causally related to that work injury." Id. at 262.
In Folk v. Workers' Comp. Appeal Bd. (Dana Co.), 802 A.2d 1277 (Pa. Cmwlth. 2002), this Court held that when a claimant returns to a pre-injury job without modification he is not entitled to the presumption that his loss of earnings is causally related to the work injury when he loses his position in an economic layoff. Only when the claimant proves this causal connection, does the burden shift to employer to prove the availability of work within the claimant's physical restrictions. Trumbull v. Workmen's Comp. Appeal Bd. (Helen Mining Co.), 683 A.2d 342 (Pa. Cmwlth. 1996).
Like in Folk, Claimant returned to his pre-injury position without modification. Accordingly, he was required to present evidence that his loss of earnings was caused b
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