Sloane v. CHOP (elbow in 2004; elbow & knee in 2006) published today. Cross appeals. WCJ McManus granted reinstatement, finding total disability as of November 2007 based on both 2004 and 2006 injuries.
WCAB reversed grant of total disability based on 2006 injury, and barred $ for the 2006 injury b/c it was subject to 3-yr limitation rather than 500 weeks. WCAB also reversed grant of total disability based on 2004 b/c Dr. Mercora related 2007 knee replacement to 2006 injury. WCAB did uphold liability for 2007 knee replacement based on Mercora link to 2006 injury.
CC (Colins w/Pellegrini & Brobson): Affirm. 2004 injury was not at issue in these proceedings and WCJ exceeded authority in including it in grant/award.
Holding: “Accordingly, we conclude that the Board did not err in determining that Claimant’s medical treatment for the 2006 work injury was compensable under the Act but was not entitled to an award of total disability benefits for the 2004 or 2006 work injuries. The order of the Board is affirmed.”
Claimant friendly decision out today from Scranton, a CC reversal over WCJ/WCAB grant/affirm of Pa Dep’t of Military/Veteran Affairs petition to suspend. Thomas Lucas of Scranton gets the win over Scranton City Solicitor.
Injury was cervical sprain/strain in July 2009. NCP issued and benefits paid until suspension petition asserted Claimant voluntarily removed self from workforce by moving to Nevada. Claimant stated that she moved for the dry climate, which is better for her. She also had preexisting fibromyalgia and lupus. She stated she would work in Nevada if she can. WCJ granted suspension on basis of voluntary move and also because Claimant retired and took her pension. Board affirmed.
Cmwlth Ct (Pellegrini w/McCullough & Colins). Reverse. Moving away and taking pension alone not enough to suspend:
Based on the foregoing, it is clear that the WCJ erred as a matter of
law in relying on Claimant’s permanent relocation to Nevada, standing alone, to
support a determination that she had permanently removed herself from the
workforce. Such relocation is specifically contemplated by and provided for in
Section 306(b)(2) of the Act. Likewise, the WCJ could not solely rely on
Claimant’s receipt of her disability pension to support the suspension of benefits
on the basis that she has permanently separated from the workforce. See Robinson,
67 A.3d at 1210 (“There is no presumption of retirement arising from the fact that
a claimant seeks or accepts a pension, much less a disability pension; rather, the
worker’s acceptance of a pension entitles the employer only to a permissive
inference that the claimant has retired. Such an inference, if drawn, is not on its
own sufficient evidence to establish that the worker has retired–the inference must
be considered in the context of the totality of the circumstances.”).