 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Wallace v. Workers' Compensation Appeal Board9/12/2005
restrictions and is subsequently laid off and then petitions for reinstatement of benefits, the claimant must demonstrate that it is the work-related injury that is causing his or her present loss of earnings).
The WCJ further found that Claimant failed to present sufficient evidence to demonstrate that he was entitled to a resumption of benefits for his April 4, 1994 injury. The WCJ also concluded that Claimant failed to present credible evidence to support his penalty petition.
The WCJ found in favor of Employer on its suspension/termination petition after finding the testimony of Employer's medical expert to be credible. The WCJ relied in part on the testimony of Claimant's medical expert, Dr. John Gastaldo, who admitted that absent degenerative changes of the back, Claimant would be capable of performing his July 2001 position. Accordingly, the WCJ suspended Claimant's benefits as of July 16, 2001 and terminated them as of September 19, 2002. Finally, the WCJ determined that Employer had a reasonable basis for its contest.
On Claimant's appeal, the Board affirmed the WCJ's decision in its entirety. Claimant filed for reconsideration on the ground that the Board failed to consider his 1994 work injury in connection with his request for reinstatement of benefits and penalties and that the Board erred in affirming the WCJ's denial of penalties without considering open Bureau documents, namely, the 1995 supplemental agreement and the 2001 NCP.
The Board granted reconsideration but nevertheless affirmed the WCJ's order. The Board stated that because Employer had failed to properly seek a suspension or termination of benefits for the 1994 injury, it was under a continuing obligation to pay Claimant benefits for that injury. The Board therefore reasoned that Claimant's petition to reinstate benefits was moot.
With regard to Claimant's penalty petition, the Board again noted that Employer had a continuing obligation to pay benefits pursuant to the 1995 supplement agreement and the 2001 NCP. As a result of Employer's failure to pay benefits, the Board found that Employer violated the Act. Notwithstanding that determination, the Board further concluded that the WCJ expressed a clear intent not to award penalties where Claimant had admitted to returning to work without a loss of earnings for a period of seven months prior to his lay off. Thus, the Board decided that despite Employer's violation of the Act, the WCJ did not abuse her discretion in denying the penalty petition.
Claimant's Appeal
On appeal, Claimant raises three issues for our review: whether the Board erred in failing to (1) order the payment of benefits with respect to Claimant's 1994 neck injury and 2001 back injury commencing February 22, 2002 where it determined that Employer had a continuing obligation to pay benefits pursuant to the 1995 supplemental agreement and the 2001 NCP; (2) remand the matter to the WCJ for the imposition of penalties based on the Board's determination that Employer violated the Act; and (3) address the reasonableness of Employer's contest on Claimant's penalty and reinstatement petitions. We address Claimant's arguments in seriatim.
In his first argument, Claimant contends that the Board erred in failing to order Employer to pay Claimant benefits commencing February 22, 2002 and continuing forward where the Board determined that Employer has an ongoing obligation to pay Claimant benefits due to the 1995 supplemental agreement and the 2001 NCP. An employer may discontinue benefits to a claimant only if it satisfies one of the following conditions: (1) submitting a supplemental agreement pursuant to Section 408 of the Act, 77 P
Page 1 2 3 4 5 6 Pennsylvania Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|