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Schneider2/28/2000
The issue on appeal is whether an employer seeking a suspension of workers' compensation benefits must demonstrate job availability under the distinct factual circumstances of this case.
FACTS AND PROCEDURAL HISTORY
Omar Bey (Bey) sustained a work-related injury to his head and neck while working as a boilermaker for Schneider, Inc. (Schneider) on May 19, 1987. Pursuant to a Notice of Compensation Payable, Schneider began paying Bey total disability benefits. By supplemental agreements, the parties agreed that Bey would return to work on November 11, 1987, and that his work-related disability recurred on November 15, 1987. On May 12, 1989, while still receiving total disability benefits for his work-related injuries, Bey sustained a nonwork-related head trauma, which resulted in brain damage and paralysis. The subsequent nonwork-related injuries, independent of Bey's work-related injuries, left Bey totally and permanently disabled from any level of employment.
Schneider filed a Suspension Petition alleging that Bey's disability was the result of a nonwork-related head trauma and that Bey's nonwork-related injuries had the effect of removing him from the labor market. Bey filed an Answer denying all material allegations in Schneider's petition. In a decision circulated on October 29, 1993, a Workers' Compensation Judge (WCJ) denied Schneider's petition. Although, the WCJ acknowledged that Bey would be incapable of ever returning to any job because of his nonwork-related injuries, the WCJ, relying on this Court's decision in Kachinski v. Workmen's Compensation Appeal Bd. (VEPCO Constr. Co.), 532 A.2d 374 (Pa. 1987), denied the suspension petition citing Schneider's failure to present any evidence of job availability.
Schneider appealed the WCJ's decision to the Workers' Compensation Appeal Board (Board). The Board reversed and remanded concluding that the WCJ erred in not making necessary credibility determinations regarding Schneider's medical experts. The Board framed the operative issues on remand as twofold: first, whether the work-related total disability of Bey had changed to a partial disability; and second, whether Bey's work-related injuries had resolved, thus, leaving the nonwork-related injuries of Bey the sole cause of his total disability.
On remand, Schneider again presented no evidence of job availability, choosing instead to rely solely on the testimony of its medical experts, which the WCJ found credible. The crux of this testimony was that the work-related injuries of Bey resolved to the point where he could have at least performed sedentary or light-duty work if he were not otherwise totally unable to return to work because of his subsequent nonwork-related head injuries. Based on the medical evidence that Bey was totally disabled by his nonwork-related injuries, the WCJ suspended Bey's workers' compensation benefits. Relying on the Commonwealth Court's decisions in Carpentertown Coal & Coke Co. v. Workmen's Compensation Appeal Bd. (Seybert), 623 A.2d 955 (Pa. Cmwlth. 1993) and USX Corp. v. Workmen's Compensation Appeal Bd. (Hems), 647 A.2d 605 (Pa. Cmwlth. 1994), the WCJ concluded that an employer "does not have to produce evidence of work availability where the claimant has become totally disabled due to a non-work related injury." (WCJ's Decision of July 1, 1994, p. 6.)
Bey then appealed the suspension to the Board. The Board reversed the WCJ's suspension of benefits, relying on the decision of the Commonwealth Court in Sheehan v. Workmen's Compensation Appeal Bd. (Supermarkets General), 600 A.2d 633 (Pa. Cmwlth. 1991), alloc. denied, 609 A.2d 170 (Pa. 1992). The Board stated that the Commonwealth Court hel
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