Keen Transport, Inc., and Sparta Ins. Co. v. WCAB (Shields), Keen Transport, Inc., and Sparta Ins. Co. v. WCAB (Shields)

Background

Claimant (mechanic) fell at work on Feb. 17, 2014, injuring left wrist/arm, shoulder, and neck; he initially worked light duty with restrictions and later underwent cervical surgery on June 18, 2014.
Employer issued an untimely medical-only Notice of Temporary Compensation Payable on Aug. 15, 2014 and later converted it to a Notice of Compensation Payable accepting only a left shoulder sprain.
Claimant was administratively terminated effective July 28, 2014 (no-fault FMLA exhaustion) and later released to full duty (Dr. Fernandez: release effective Sept. 25, 2014 and November 28, 2014), but Claimant testified Employer had no work available.
Claimant filed claim and penalty petitions (July 18, 2014); Employer filed a termination petition (Nov. 19, 2014) asserting full recovery as of Oct. 21, 2014.
WCJ found Claimant and treating surgeon Dr. Fernandez credible, awarded ongoing disability benefits, and imposed a 50% penalty for Employer’s delay in issuing the medical-only notice; the Board affirmed and this Court likewise affirmed.

Issues

Issue	Plaintiff's Argument (Shields)	Defendant's Argument (Keen/Sparta)	Held
Whether Claimant proved ongoing disability after release to full duty	Claimant argued disability (loss of earning power) continued because residual symptoms persisted and Employer had no job available after his release	Employer argued medical release ended disability and at most Claimant was entitled to a closed period through Sept. 25, 2014	Held for Claimant: residual symptoms + administrative termination and lack of job availability support ongoing disability beyond release; Employer bore burden to prove job availability and did not do so
Whether WCJ erred in applying burden of proof (Landmark/Vista) in claim petition	Claimant relied on Landmark/Vista to shift job-availability burden to Employer once loss of earning power shown	Employer argued Landmark improperly applied because this was a claim (not termination) and claimant lacked proof of ongoing disability	Held for Claimant: Vista and Landmark permit WCJ in claim proceedings to incorporate suspension aspects and allocate initial job-availability burden to employer once claimant proves loss of earning power
Whether WCJ failed to issue a reasoned decision when awarding ongoing benefits despite Dr. Fernandez’s release dates	Claimant relied on testimony and evidence of ongoing symptoms and lack of job to explain award	Employer claimed WCJ accepted release but awarded benefits without explaining the inconsistency	Held for Claimant: WCJ’s credibility findings and record (residual symptoms, no job) adequately support award; no failure to reason
Whether 50% penalty under Section 435(d) was an abuse of discretion	Claimant sought penalty for Employer’s late notice and failure to timely investigate/pay	Employer conceded untimely notice but argued 10% rather than 50% and that WCJ did not make specific findings of unreasonable/excessive delay	Held for Claimant: 50% penalty not an abuse of discretion given undisputed delay and WCJ’s discretionary authority; Board’s affirmation sustained

Key Cases Cited

Ricks v. Workers’ Compensation Appeal Board (Parkway Corp.), 704 A.2d 716 (Pa. Cmwlth. 1997) (claimant can receive ongoing partial disability when released to work but has no job and suffers earning loss)
Vista Int’l Hotel v. Workmen’s Compensation Appeal Board (Daniels), 742 A.2d 649 (Pa. 1999) (in claim proceedings WCJ may address aspects of suspension/termination and initial job-availability burden generally shifts to employer once claimant shows loss of earning power)
Landmark Constructors, Inc. v. Workers’ Comp. Appeal Bd. (Costello), 747 A.2d 850 (Pa. 2000) (disability equated with loss of earning power; employer generally must establish job availability to obtain suspension)
City of Pittsburgh v. Workers’ Comp. Appeal Bd. (Leonard), 18 A.3d 361 (Pa. Cmwlth. 2011) (employer bears burden to prove job availability to suspend benefits)
Kachinski v. Workmen’s Comp. Appeal Bd. (Vepco Constr. Co.), 532 A.2d 374 (Pa. 1987) (employer’s obligation to prove job availability when seeking suspension)
Graham Architectural Prods. Corp. v. Workmen’s Comp. Appeal Bd. (Rothrock), 619 A.2d 404 (Pa. Cmwlth. 1992) (medical release to work without restrictions is not necessarily conclusive proof that all disability has ceased)