Case Law Update | Dixon v. WCAB (Pa. Cmwlth. March 30, 2016) | PA Work Injury

March 30, 2016

Dixon (represented by Attorney Dastur of PBGH) v. WCAB (Medrad) represented by Michael Sherman of Chartwell’s Sewickley/PBGH office.  Suspension and two penalties.  Claimant loses except for a small victory on the 2nd penalty.

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1700CD14_3-30-16.pdf?cb=1

 

Suspension: injury occurred in 2002.  Claimant set to return to work on 7/25/11, and Employer noticed suspension.  Claimant made it a week or so until 8/3/11, but never got through a full day, then stopped.  Employer filed suspension petition as of 8/3/11.  Suspension upheld.  Employer met burden to show job offered within Claimant’s abilities and restrictions set by Claimant’s doctor.  But per WCJ, Claimant did not make good faith effort to follow through during the week he was back.  N.T. from Claimant excerpted here are pretty bad and don’t help his case at all, but who can say within context of the entire testimony.  Still, WCJ clearly wasn’t buying it and WCAB/CC declined to disturb cred calls.

 

Penalty I: Denied/Affirmed.  Employer not bound to begin disfigurement benefits until suspension order issued on 1/9/13 (retroactive to 8/3/11).  There was a temporary suspension from 7/25/11 thru 8/2/11 when Claimant briefly returned to work, but after supersedeas hearing on 9/7/11, benefits were reinstated as of 8/3/11 while suspension was being litigated.  Thus, the temporary suspension did not trigger employer duty to pay disfigurement until 1/13 order. 

 

Penalty II: Denied/Reversed.  Claimant filed challenge to employer’s suspension on 8/8/11.  Statute/regs are clear that supersedeas hearing on this issue must be within 21 days.  Here, that would be 8/29/11, but not held until 9/7/11.  Clear violation, so CC remands down to WCJ for imposition of penalty.

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