Brewer v. Workers' Compensation Appeal Board
2013 Pa. Commw. Unpub. LEXIS 133
| Pa. Commw. Ct. | 2013Background
- Claimant Wallace Brewer injured his lower back at work on May 1, 2009, when a forklift pushed a pallet into him.
- Employer EZ Payroll & Staffing Solutions initially denied disability beyond a lumbar sprain and discharged Brewer after a positive drug test.
- Brewer received treatment at Careplex and Potts-town Memorial Hospital; doctors issued work restrictions.
- Employer has a zero-tolerance drug policy and required drug testing after workplace accidents; positive results trigger immediate discharge.
- The WCJ found a work-related injury but no compensable disability due to discharge for cause, and suspended benefits from the date of discharge.
- Claimant appealed arguing lack of a notice of ability to return to work and that discharge did not prove loss of earnings or ability to work.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether suspension required a notice of ability to return to work | Brewer did not receive 306(b)(3) notice. | Section 306(b)(3) threshold is limited to medical-based modifications. | Affirmed: no notice required because suspension based on medical evidence is not implicated. |
| Whether post-injury discharge negates disability | Disability can exist despite discharge for misconduct. | Disability was the result of discharge for cause, not the injury. | Affirmed: loss of earnings due to discharge, not injury, supports no disability. |
| Whether the drug test evidence supported discharge | Drug test result and testimony were uncorroborated hearsay. | Testimony supported positive drug test; admissions corroborate. | Affirmed: substantial evidence supports positive drug test and discharge. |
| Whether claimant could return to sedentary work as of injury date | Claimant was totally disabled; evidence shows no sedentary work capability. | Sedentary work was available; modified duties existed. | Waived and/or supported by evidence: claimant could return to sedentary work; waiver issues not raised. |
Key Cases Cited
- Allegis Group (Onsite) v. Workers’ Compensation Appeal Board (Henry), 882 A.2d 1 (Pa.Cmwlth.2005) (threshold for modification based on medical evidence)
- Burrell v. Workers’ Compensation Appeal Board (Philadelphia Gas Works and Compservices, Inc.), 849 A.2d 1282 (Pa.Cmwlth.2004) (modification requires medical evidence)
- Vista International Hotel v. Workmen’s Compensation Appeal Board (Daniels), 742 A.2d 649 (Pa. 1999) (disability requires loss of earning power due to work injury)
- BJ’s Wholesale Club v. Workers’ Compensation Appeal Board (Pearson), 43 A.3d 559 (Pa.Cmwlth.2012) (disability requires loss of earnings from injury)
- Edwards v. Workers’ Compensation Appeal Board (Sears Logistics Services), 770 A.2d 805 (Pa.Cmwlth.2001) (disability determination framework)
- Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (Pa. 1985) (substantial evidence standard and review framework)
- Birmingham Fire Insurance Company v. Workmen’s Compensation Appeal Board (Kennedy), 657 A.2d 96 (Pa.Cmwlth.1995) (credibility and review of WCJ findings)
- Williams v. Workmen’s Compensation Appeal Board (Montgomery Ward), 127 Pa.Cmwlth. 587, 562 A.2d 437 (Pa.Cmwlth.1989) (waiver of issues not raised before board)