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Wallace v. Workers' Compensation Appeal Board9/12/2005
Richard Wallace (Claimant) and A-P-A Transport (Employer) have filed cross-petitions for review of the December 7, 2004 order of the Workers' Compensation Appeal Board (Board) granting Claimant's petition for reconsideration of the Board's July 28, 2004 order that affirmed the order of the Workers' Compensation Judge (WCJ) granting Employer's petition to suspend or terminate workers' compensation benefits and denying and dismissing Claimant's petitions to reinstate benefits and penalty petition. We reverse the Board's order to the extent that it fails to order Employer to reinstate the payment of benefits relative to Claimant's 1994 injury.
Claimant was originally employed as a truck driver. On April 4, 1994, he sustained an injury to his neck when he was driving a truck and ran over a bump in the road. Upon hitting the bump, Claimant's head hit the top of the truck's cab, causing arm and leg numbness. A notice of compensation payable (NCP) was executed awarding Claimant $493 in weekly benefits. Claimant issued a final receipt on May 11, 1994; however, effective September 7, 1995, the parties entered into a supplemental agreement reinstating Claimant's weekly benefits. Claimant subsequently returned to his pre-injury job as a truck driver with the proviso that he could only drive trucks with automatic transmissions. Employer accommodated Claimant.
On March 23, 2001, Claimant sustained a second work injury in the nature of a sprain/strain of the lower back when he attempted to move a 500-pound drum. Employer issued a second NCP awarding Claimant weekly benefits. Claimant returned to work and was informed by his physician to work to his tolerance. Upon his return to work, Claimant was successful on his bid for the position of dock worker. His duties included loading and unloading trailers. According to Claimant's testimony, the duties of a truck driver and dock worker were very similar; however, as a dock worker he had the use of a forklift and pallets to move cargo.
On February 22, 2002, Claimant was laid off due to economic reasons. On March 3, 2002, Claimant filed a petition to reinstate benefits alleging that his April 4, 1994 neck injury was once again causing a decrease in earning power. Employer responded with a suspension/termination petition on March 4, 2002, contending that Claimant had fully recovered from his March 23, 2001 work injury and was able to return to unrestricted work and in fact had done so. Employer's petition did not allege that Claimant had fully recovered from his April 4, 1994 work injury. On March 14, 2002, Claimant filed a petition to reinstate benefits alleging that his March 23, 2001 back injury was again affecting his earning capacity effective February 22, 2002. Claimant also filed a penalty petition of the same date averring that Employer violated the Workers' Compensation Act (Act) by failing to automatically reinstate Claimant's benefits upon his lay off from a modified-duty position.
After a review of the evidence presented, the WCJ found as fact that Claimant returned to work on July 16, 2001 and was thereafter laid off in February 2002 due to economic reasons. The WCJ rejected Claimant's contention that the position of a dock worker was light duty. Additionally, the WCJ noted Claimant's testimony that absent his lay off, he would be capable of working the same position that he was performing in July 2001. Thus, the WCJ concluded that Claimant was not entitled to the presumption that his earning power was adversely affected by his work injury. See Klarich v. Workers' Compensation Appeal Board (RAC's Ass'n), 819 A.2d 626 (Pa. Cmwlth.), appeal denied, 574 Pa. 763, 831 A.2d 601 (2003)(where a claimant returns to work without
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