Case Law Update

May 30, 2014

Furnari v WCAB (Temple Inland), __ A.3d __ (Pa. Cmwlth., No. 1171 C.D. 2013, filed April 10, 2014)

The claimant’s injury was accepted via a medical-only NCP and the employer agreed to continue paying claimant’s full salary. The claimant worked for a period of time, with restrictions, before resigning, at which time the employer stopped paying his salary.

The claimant filed a reinstatement petition, later amended to include a claim petition, seeking wage loss benefits. Finding that the issuance of a medical-only NCP and payment of claimant’s salary created a de facto NCP, the WCJ found that the correct burden of proof was that of a reinstatement petition and found that claimant failed to prove that his work-related disability had worsened to the point where he could not perform modified duty work. The reinstatement petition was denied. The Board disagreed that salary continuation payments created a de facto NCP, but determined that claimant neither prevailed under a reinstatement or claim petition standard. The claimant appealed.

In determining the correct burden of proof, the Commonwealth Court outlined a two prong test: where there is both a documented work-related injury, either by adjudication or acceptance, such as by NCP, and the injury gives rise to a disability, the proper burden of proof is that of a reinstatement petition. Where both or either of these prongs is missing, the burden of proof is that of a claim petition.

Given the de facto NCP, the Court observed that claimant’s burden was that of a reinstatement petition. Since the WCJ applied the correct burden of proof, and both the WCJ and Board agreed that claimant failed to establish that his earning power was adversely affected by the work injury when claimant’s employment ended, the Board’s use of a claim petition standard was harmless.

The Court rejected the claimant’s argument that the employer remained obligated to continue paying workers’ compensation benefits based on the de facto NCP and in the absence of an event altering the employer’s obligation to pay benefits (i.e. the filing of a suspension petition). The Court reasoned that claimant himself initiated the suspension when he voluntarily terminated his employment. The Court went on to affirm the WCJ’s suspension of benefits, without a formal petition, citing to the Krushauskas case.

 

The Court also rejected the claimant’s argument that he had demonstrated a worsening of his condition, noting that the WCJ’s finding that claimant’s loss of earnings was not due to his work injury, was supported by substantial competent evidence of record. The Court found that the employer satisfied its burden that suitable employment was available, given that it had created a modified duty position for claimant and because the WCJ rejected claimant’s testimony that the work exceed his limitations. While there was no finding made as to the duration of the modified duty position offered to claimant, the Court found no error, since the record demonstrated that the employer would have continued to make the position available, had claimant not resigned. Lastly, while a job offer had been introduced into the evidentiary record, the Court found that it did not constitute inadmissible hearsay since claimant’s counsel allowed it to be admitted and because the WCJ did not make any findings of fact solely based on the job offer, which contained hearsay information. 

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