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Weber v. Workers' Compensation Appeal Board3/25/1999
ARGUED: February 9, 1999
Richard Weber (claimant) appeals from an order of the Workers' Compensation Appeal Board (Board) which reversed the decision of the Workers' Compensation Judge (WCJ) granting claimant's reinstatement and penalty petitions. After review, we reverse in part and affirm in part.
Claimant sustained a work-related injury to both hands (carpel tunnel syndrome) in March 1987, while working for Shenango, Incorporated in a position which involved the use of vibrating tools. As a result of his injury, claimant was unable to work and received total disability benefits pursuant to a notice of compensation payable for the period March 30, 1987, through early August 1987. On August 3, 1987, claimant was released to return to work subject to a medical restriction against the use of any vibrating tools.
Claimant returned to work with no loss of earnings on August 3, 1987, and on August 11, he signed a final receipt. Upon his return, he took a position in the same department (the RAM department) where he had worked at the time of his injury, although in a job which did not require the use of vibrating tools. After working for a time in the RAM department where he had 13 years of seniority, claimant bid on and took a job in another department, which resulted in a loss of seniority and payment of wages at less than his pre-injury rate. Thereafter, claimant filed a petition to reinstate compensation benefits, which he later amended to a petition to set aside final receipt.
On August 27, 1992, following litigation, a referee set aside the final receipt and granted claimant partial disability benefits from August 3, 1987, through the date of the decision and continuing into the future. In setting aside the final receipt and granting claimant partial disability benefits, the referee made the following findings of fact:
"9. Defendant's position is that there were jobs within the RAM department that were non-disabling and did not involve the use of vibrating tools which claimant could have bid on. Instead, he bid out of the department, and, in fact, he bid on non-incentive jobs which denied him opportunity to earn the incentives which would have kept his wages at a level equal to what he had been earning prior to being injured."
"10. This Referee finds that as a result of suffering a work-related injury on March 27, 1987, the claimant did have a partial residual disability at the time he returned to work. The parties agreed that the claimant could not return to his former occupation involving the use of vibrating tools and that the only issues to be decided is what amount, if any, is due to the claimant for past partial disability. (N.T. 1/15/91 at 3)." Weber v. Shenango, Inc., Referee's decision of August 27, 1992, slip. op. at 3 (Petitioner's brief at A-4). Employer appealed the referee's decision and the Board affirmed.
On employer's subsequent appeal to this court, employer argued that claimant was not entitled to an award of partial disability benefits because his loss of earnings was not attributable to the work-related injury, but due to his voluntary action of bidding outside of his department where he had no seniority. Citing Kachinski v. Workmen's Compensation Appeal Board, 516 Pa. 240, 532 A.2d 374 (1987), this court reversed the Board's affirmance of the grant of partial disability benefits. Specifically, we concluded that claimant was not entitled to benefits because employer had provided claimant with a job within his physical limitations at a rate of pay equal to or greater than his pre-injury rate and that the subsequent loss of earnings was due to claimant's voluntary decision to move out of the department
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