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Newhouse v. Workers' Compensation Appeal Board6/5/2002
Ordered published July 29, 2002.
LINDA NEWHOUSE, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (PJ DICK/TRUMBULL CORPORATION), RESPONDENT
Before: Honorable Doris A. Smith-ribner, Judge, Honorable Robert Simpson, Judge, Honorable James R. Kelley, Senior Judge.
The opinion of the court was delivered by: Senior Judge Kelley
Submitted: March 22, 2002
OPINION
Linda Newhouse (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) which affirmed an order of a workers' compensation judge (WCJ) granting the suspension/modification petition of PJ Dick/Trumbull Corporation (Employer). We affirm.
Claimant was injured in the course and scope of her duties as a heavy equipment operator for Employer on April 3, 1998, when the compactor that Claimant was operating hit a rock and threw her forward, injuring her neck. Thereafter, Employer and Claimant signed a Notice of Compensation Payable, and Claimant began receiving benefits pursuant to the Pennsylvania Workers' Compensation Act (Act). On July 9, 1998, Claimant underwent surgery for her April 3, 1998 injury.
On September 15, 1999, Employer filed a petition to suspend Claimant's benefits (Petition), alleging that Claimant was able to return to work without restrictions as of August 23, 1999, and was therefore no longer eligible for benefits. Claimant timely answered Employer's Petition, denying the material allegations therein.
By letter dated November 3, 1999, Employer offered Claimant a full-time position at another of Employer's work sites, at a rate of pay exceeding that of Claimant's pre-injury position. On November 8, 1999, Claimant appeared at the specified work site of Employer. After working for over two hours on completing paperwork related to her new position, Claimant left the job site after advising the project engineer that she was unable to continue working due to pain. Claimant did not thereafter return to work.
During the subsequent hearings on Employer's Petition before the WCJ, Employer amended its Petition to allege, in the alternative, that Claimant was offered modified-duty work beginning November 8, 1999, which Claimant failed to accept. Claimant did not object to Employer's amendment.
In a decision and order dated May 16, 2000, the WCJ found, inter alia, that Employer had offered an available position to Claimant as of November 8, 1999, and that said position was within Claimant's physical and medical capabilities. The WCJ concluded that Claimant had failed to satisfy her burden of establishing that she had failed to accept Employer's offer in good faith, and therefore granted Employer's Petition, suspending Claimant's benefits effective November 8, 1999.
Claimant timely appealed the WCJ's order to the Board, which affirmed. Claimant now petitions this Court for review of the Board's order.
This Court's scope of review is limited to determining whether there has been a violation of constitutional rights, errors of law committed, or a violation of Board procedures, and whether necessary findings of fact are supported by substantial evidence. Lehigh County Vo-Tech School v. Workmen's Compensation Appeal Board (Wolfe), 539 Pa. 322, 652 A.2d 797 (1995).
In seeking a modification of compensation benefits, " he employer has the burden of showing that the disability has ended or has been reduced and that work is available to the claimant and the claimant is capable of doing such work." Celio v. Workmen's Compensation Appeal Board (Canon
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