Dixon v. Workers' Compensation Appeal Board
134 A.3d 518
| Pa. Commw. Ct. | 2016Background
- Claimant Edward Dixon injured his neck in 2002 and received WC benefits, including an award of 30 weeks of disfigurement benefits for a cervical scar.
- Employer (Medrad, Inc.) notified Claimant on July 29, 2011 that benefits would be suspended as of July 25, 2011 because Claimant returned to work at pre-injury earnings; Employer filed a Suspension Petition on August 3, 2011 and Claimant filed a Challenge Petition on August 8, 2011.
- Employer produced an IME (Dr. Kandabarow) and offered Claimant a modified mechanical specialist position; Claimant worked intermittently July 25–August 2, 2011 and then stopped, claiming pain and lack of tools.
- WCJ found Employer proved the offered job was within Claimant’s restrictions and that Claimant failed to make a good-faith return-to-work effort, granted the Suspension Petition, and denied two penalty petitions (failure to pay disfigurement benefits and failure to reinstate benefits after delay).
- The Board affirmed the WCJ but modified to reflect that Claimant’s Challenge Petition was granted; Claimant appealed to this Court.
Issues
| Issue | Claimant's Argument | Employer's Argument | Held |
|---|---|---|---|
| Whether WCJ erred by suspending Claimant’s total disability benefits | Job exceeded Claimant’s restrictions; suspension improper | Job was within restrictions per IME and employer testimony | Suspension upheld: WCJ credibility findings supported suspension |
| Whether employer violated Act by not beginning disfigurement benefits when temporary benefits suspended (First penalty) | Employer should have paid disfigurement when temporary benefits were suspended July 25, 2011 | Disfigurement weeks do not commence until temporary total disability ends; suspension was brief and later superseded | Penalty denied: no violation because temporary benefits were not finally terminated and were reinstated by supersedeas |
| Whether employer violated Act by not reinstating benefits because WCJ failed to hold hearing within 21 days of Challenge (Second penalty) | WCJ failed to hold supersedeas hearing within 21 days of Claimant’s filing (Aug 8) so employer must reinstate and may be penalized | WCJ relied on assignment date (Aug 11) and scheduling to justify delay | Reversed: employer violated Act/regulation; remanded to determine whether to assess penalty and amount |
Key Cases Cited
- Kachinski v. Workmen’s Comp. Appeal Bd. (Vepco Constr. Co.), 532 A.2d 374 (Pa. 1987) (framework for suspending/modifying benefits via job referral and claimant good-faith effort)
- Turner v. Jones & Laughlin Steel Corp., 389 A.2d 42 (Pa. 1978) (Section 306(d) delays commencement of scheduled disfigurement weeks until temporary total disability ends)
- Bey v. Workers’ Comp. Appeal Bd. (Ford Electronics), 801 A.2d 661 (Pa. Cmwlth. 2002) (burden shifts to claimant to show lack of good-faith in following job referral)
- Gumm v. Workers’ Comp. Appeal Bd. (Steel), 942 A.2d 222 (Pa. Cmwlth. 2008) (penalty assessment is discretionary and requires proof of a statutory/regulatory violation)
- City of Pittsburgh v. Workers’ Comp. Appeal Bd. (Robinson), 4 A.3d 1130 (Pa. Cmwlth. 2010) (Section 306(b)(2) alternative means to establish earning power)