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SEPTA v. WCAB (Cunningham) No. 2045 C.D. 2011 (Pa. Cmwlth. July 12, 2013)


By:  Lisa A. Miller, Esquire

            The Court reversed the Order of the Appeal Board, which reversed the order of the WCJ suspending the Claimant’s benefits.

            On June 11, 1996, the Claimant sustained an injury to his right knee in the course and scope of his employment as a first class body mechanic.  The Claimant was working under permanent, light duty restrictions earning an average weekly wage of $825.91.  SEPTA accepted the Claimant’s injury and disability through a TNCP, but issued a Notice of Compensation Denial (NCD) on July 17, 1996.  Claimant filed a Claim Petition in August 1996, and a Penalty Petition in June 1997 alleging an unreasonable contest.

            The Claimant returned to his pre-injury light duty work shortly after the June 11, 1996 accident.  On July 7, 1996, the Claimant was involved in a non-work related car accident.  In that non-work related motor vehicle accident he sustained injuries to his left knee, low back and left hand.  The Claimant went out of work for the motor vehicle accident on July 12, 1996.  Claimant underwent surgery for the right knee injury that he sustained at work in January 1997, and returned to his pre-injury light duty position in April 1997.

            On December 27, 1998, the Claimant was struck by a vehicle and suffered injuries to his left knee, low back, left hand and left shoulder in a non-work related incident.  The Claimant stopped working again, and began receiving sickness and accident benefits.  Claimant unsuccessfully attempted to return to work during the week of December 26, 1998, but has not returned to work since then.

            On June 6, 2000, following hearings on the Claim Petition the WCJ issued an order granting the Claimant’s Penalty and Claim Petitions.  The Judge awarded total disability benefits for the period in which Claimant was disabled from the June 11, 1996 work injury, and not otherwise compensated up until the date of his Decision and indefinitely thereafter.

            On August 28, 2006, the Employer filed a modification and/or suspension petition alleging that as of April 12, 2006, the Claimant failed to respond in good faith to jobs referred to him that were within his physical and vocational capacities.  During the course of the litigation, on January 30, 2007, the Employer filed a second modification/suspension petition alleging that the Claimant was able to return to work as of November 9, 2005, but for his December 1998 non-work related injuries.

            Employer presented Dr. Bernstein, who opined that the Claimant’s work-related right knee injury had sufficiently recovered such that the Claimant was capable of performing sedentary work as of November 9, 2005, and that the only cause of the Claimant’s continuing disability was the non-work related December 1998 accident.

            Employer also presented the testimony of a vocational expert, Michael Smychynsky who conducted a vocational evaluation of the Claimant.  Mr. Smychynsky testified that he located four open and available positions that would have provided Claimant with wages up to $400.00 per week.  According to Mr. Smychynsky’s testimony, the Claimant went to each of the interviews, but only put his name and telephone number on the applications, and at the conclusion of two of the interviews, began “swearing” and “threatening” people.

            Claimant presented the testimony of Dr. Greene, his treating physician.  Dr. Greene testified that Claimant was not capable of returning to work due to his work-related right knee condition.  However, Dr. Greene acknowledged that he had not reviewed Claimant’s treatment records from four previous surgical procedures on the Claimant’s right knee or any records in connection with the Claimant’s December 1990 accident.

            The Claimant also presented the testimony of Donald Jennings, a licensed psychologist and certified vocational expert, who testified that Claimant’s limited reading, writing and spelling abilities accounted for his minimal responses on the employment application.  However, on cross-examination, Mr. Jennings acknowledged that the only reason the Claimant stopped working for employer was the December 1998, non-work related accident.

            The WCJ found Dr. Bernstein’s testimony more credible than the testimony of Dr. Greene, and concluded that employer met its burden of proving that Claimant’s work related injury had resolved to the point where he could perform sedentary work, but for his non-work related injuries, which rendered him incapable of all possible work activities.  The WCJ determined that employer notified Claimant of his release to sedentary work and referred four open and available positions to the Claimant which were within his vocational and physical capabilities which would have paid $400.00 per week, but the Claimant failed to pursue the positions in good faith.  As such, the WCJ granted the modification petition and reduced Claimant’s benefits for the period of April 12, 2006 to January 26, 2007.  In addition, the WCJ found that the Claimant’s non-work related injuries rendered him incapable of all possible work activity, and suspended the Claimant’s benefits as of January 26, 2007.

            The Claimant appealed, and the Board affirmed the WCJs decision to modify Claimant’s benefits.  The Board agreed with the Claimant that the Judge erred in suspending Claimant’s benefits because employer failed to establish the availability of a job equal to or greater than Claimant’s pre-injury average weekly wage of $825.91.

            On appeal to the Commonwealth Court, SEPTA argued that it was not required to demonstrate job availability given that Claimant’s non-work related injuries are totally disabling.  The Court agreed and noted that a suspension of benefits is governed by Section 413 of the Act.  The Commonwealth Court affirmed the decision of the Supreme Court inSchneider, Inc. v. WCAB (Bey), 560 Pa. 608, 747 A.2d 845 (2000), in which the Supreme Court held that an employer was not required to show job availability where the Claimant was totally disabled by non-work related conditions.  InSchneider, the Claimant suffered a work-related injury to his head and neck.  While he was receiving temporary total disability benefits, the Claimant was involved in a non-work related incident and suffered severe brain damage and paralysis, leaving him permanently unable to work in any capacity.  The Court considered the Claimant’s serious non-work related injuries prevented him from returning to work and the court concluded that it would be unreasonable to require the employer to present evidence of job availability.  The Court explained that requiring the employer to “show that a sedentary or light-duty position is available to the Claimant would be an exercise in futility by virtue of the Claimant’s physical condition, and we can see no valid point in requiring such a show.”

            The Employer argued that Schneider applies to this matter.  The Claimant’s injuries are not as severe as the injuries inSchneider, but the evidence supported the WCJ’s finding that the Claimant’s non-work related injuries rendered him incapable of all possible work activities.  Like the Claimant inSchneider, the Claimant was involved in a non-work related accident that left him totally disabled.

           Significantly, in this case, Claimant had successfully returned to his pre-injury position 20 months earlier.  Thus, the records amply support the WCJ’s conclusion that the Claimant’s work injury had resolved where he could perform sedentary work, but for his non-work related injuries.  Under the circumstances, where Claimant’s non-work injuries rendered him incapable of all possible work activity, we believe that it would be unreasonable to require employer to present evidence of available jobs.