             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Elena Horan,                             :
                   Petitioner            :
                                         :
             v.                          :
                                         :
Workers' Compensation Appeal             :
Board (Phoebe Home),                     :   No. 1868 C.D. 2014
                Respondent               :   Submitted: January 30, 2015

BEFORE:      HONORABLE BERNARD L. McGINLEY, Judge
             HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McGINLEY                            FILED: August 3, 2015

             Elena Horan (Claimant) petitions for review from an order of the
Workers’ Compensation Appeal Board (Board) that affirmed the Workers’
Compensation Judge’s (WCJ) denial of Claimant’s petition to reinstate
compensation benefits.


             On August 22, 2012, Claimant petitioned to reinstate compensation
benefits and alleged that she was “no longer disabled by her non-work-related
injuries and continues to be disabled by her work-related injuries.” Petition to
Reinstate Compensation Benefits, August 22, 2012, at 2; Reproduced Record
(R.R.) at 4a. On September 4, 2012, Phoebe Home (Employer) filed an answer
and denied all material allegations. Answer to Petition to Reinstate Compensation
Benefits, September 4, 2012, at 1; R.R. at 7a.
              Claimant testified that she was injured at work when she fell on her
knee and developed chronic regional pain syndrome (CRPS). Hearing Transcript
(H.T.), October 17, 2012, at 9; R.R. at 384a. Claimant said that she is unable to
perform her pre-injury job “[b]ecause I can hardly walk . . . I am in such pain . . .
from the CRPS” and that she is unable to perform her modified light-duty job
“[b]ecause I can’t sit very long . . . if I sit too long, I have pain . . . I have pain all
the time.” H.T. at 11-12; R.R. at 386a-87a.          Claimant stated that “I’m taking
Vicodin” for the CRPS but that her doctor wants to “put in a stimulator . . . box.”
H.T. 19; R.R. at 394a. Claimant concluded that she also suffers from depression
as a result of her CRPS. H.T. at 19; R.R. at 394a.


              Claimant continued that her modified-duty job required that: “I had to
fold big sheets . . . I had to stand up . . . [t]hey’re too big to sit and fold”; I’d have
to take the clothes that I folded and I would have to walk them over to another
table”; “I’d have to go to the [dryer], I’d have to take out one piece of clothing at a
time”; “[s]ometimes it would’ve been maybe 20 minutes to 40 minutes . . . to take
the items out of the dryer and place them in the bin . . .”; “I had to take the dresses
and hang them up on hangers and hang them on a rack”; and “I’d have to walk to
the lunchroom . . . [j]ust walking into the building was a long walk.” H.T. at 28-
30; R.R. at 339a-41a.


              Claimant introduced the medical deposition of Scott Naftulin, D.O.
(Dr. Naftulin), board-certified in physical medicine and rehabilitation.               Dr.
Naftulin testified:
              When I initially saw her [Claimant], she was being
              treated for cervical spine sprain/strain injury for
              whiplash, lumbar sprain/strain injury, post-concussive
              syndrome, and headache. Other diagnosis that were

                                            2
             treated over time and into 2010, 2011 included CRSP . . .
             Type I, of the right lower extremity, a right L4 and S1
             radiculopathy, which had been diagnosed by EMG by Dr.
             Gould, history of a right knee surgery after a work injury,
             as well as the diagnoses I’ve already described.

Deposition of Dr. Scott Naftulin (Dr. Naftulin Deposition), February 26, 2013, at
7; R.R. at 103a. Dr. Naftulin stated that “[s]ubsequent to January, 2011, it appears
that the treatment was really directed at the complex regional pain syndrome
including the Lidoderm patches, the oral medication, Keppra, an anticonvulsant
used for neuropathic pain, and consideration for spinal cord stimulator trial and
implant.” Dr. Naftulin Deposition at 11; R.R. at 107a.      Dr. Naftulin stated that
Claimant’s medical condition “appears to have worsened to some degree in that the
analgesics used to treat it, the medications have been increased from when she
initially presented here . . . [b]ut certainly it hasn’t improved.” (Emphasis added.)
Dr. Naftulin Deposition at 14; R.R. at 110a.


             Dr. Naftulin opined:
             So I don’t think she could do standing or walking for a
             cumulative third of the day . . . [b]ut based upon, again,
             her condition and her reported abilities and my
             knowledge of treating her, it’s my feeling she would have
             to be in a sedentary position for essentially throughout
             the workday. (Emphasis added.)

Dr. Naftulin Deposition at 15; R.R. at 111a.      Dr. Naftulin concluded that “[a]t
least by October 19, 2011, the CRSP, right lower extremity, was the sole reason for
her physical disability.” Dr. Naftulin Deposition at 18; R.R. at 114a.


             Karen Rozak (Rozak), the occupational health and safety coordinator
for Employer, testified that Claimant “was never asked to fold sheets, put laundry


                                         3
in dryers, take laundry out of dryers, to stand for any length of time to perform
specific tasks . . . [t]hose were never asked of her.” Deposition of Karen Rozak
(Rozak Deposition), October 5, 2010, at 8; R.R. at 208a.         Rozak continued that
when “I talk about self-modification, it’s that we didn’t make her sit for a specific
amount of time or stand. She could self-modify in that she could change what she
was doing, she could change her position, whatever was her position of comfort.”
Rozak Deposition at 9-10; R.R. at 209a-10a.            Finally, Rozak concluded that
Claimant “was not required to lift . . . [w]ork was to be brought to her.” Rozak
Deposition at 10; R.R. at 210a.     (Emphasis added.)


                Karen Rex (Rex), director of housekeeping and laundry, testified that
Claimant “[a]s a modified worker she was required to sit and fold, and basically
that was it.”     Deposition of Karen Rex (Rex Deposition), October 5, 2010, at 6;
R.R. at 240a. Rex continued that “[a] lot of the statements that Elena [Claimant] .
. . was doing in the laundry . . . was not required of her . . . [i]t was done at her own
choosing.” Rex Deposition at 8; R.R. at 242a. Rex stated that Claimant was never
asked to fold sheets. Rex Deposition at 11; R.R. at 245a. “[W]e would give her
personal clothing to fold, washcloths, bibs, smaller items.” Rex Deposition at 11;
R.R. at 245a.


                Employer also introduced the medical deposition of Gregory H.
Pharo, D.O. (Dr. Pharo), board-certified in anesthesiology with a sub-certification
in pain medicine. Dr. Pharo first examined Claimant on December 7, 2012, and
Claimant provided him with a medical history which included the details of her
work-related injury. Deposition of Dr. Gregory H. Pharo (Dr. Pharo Deposition),
April 5, 2013, at 7-8; R.R. at 317a-18a. Dr. Pharo’s medical examination revealed:



                                           4
               . . . When she walked, she didn’t seem to have any
               significant gait abnormality, except for in relationship to
               the knee. She did not flex or completely extend her right
               leg and dragged that. The knee, when I examined it . . .
               [s]he was able to flex it 105 degrees and extend it within
               10 degrees of complete extension.                  She has
                                                [1 ]
               hypersensitivity, or allodynia , of the knee, superior and
               proximal to the calf. The lateral aspect of the calf was
               shiny with some soft tissue edema . . . . The capillary
               refill was normal in both extremities. In the upper
               extremities, it was a little bit longer, which I thought was
               kind of interesting. The right leg seemed warm - -
               seemed equal in strength.

Dr. Pharo Deposition at 11-12; R.R. at 321a-22a.             Dr. Pharo opined that “I agreed
and thought she had CRPS Type I, and I thought she was able to perform the duties
she previously was able to perform.” (Emphasis added.) Dr. Pharo Deposition at
16; R.R. at 326a.


               The WCJ made the following pertinent findings of fact:
                                      Findings Of Fact
                                         A. Litigation

               1. Defendant [Employer] acknowledged responsibility
               for claimant’s July 30, 2006 work injury . . . . Defendant
               [Employer] described the injury as, ‘Right Knee
               Prepatellar Bursitis.’ Thereafter, claimant’s disability
               status was altered by the issuance of a Notice of
               Suspension and by the filing of a Supplemental
               Agreement, suspending claimant’s benefits as of
               September 2, 2007 . . . . (Emphasis added.)



       1
         “Allodynia is a painful sensation to a non-painful stimulus such as light touch, stroking,
sheets touching it.” Dr. Pharo Deposition at 12; R.R. at 322a.



                                                5
2. On September 29, 2008, claimant filed a Petition to
Review Compensation Benefits.         At a hearing on
November 10, 2008, the parties entered into a Stipulation
on the record, wherein defendant [Employer]
acknowledged responsibility for claimant’s chronic
regional pain syndrome (CRPS) or RDS of the right
lower extremity.        Claimant’s Petition to Review
Compensation Benefits was granted based upon the oral
stipulation . . . . (Emphasis added.)

3. On February 26, 2009, claimant filed a Reinstatement
Petition seeking reinstatement as of November 30, 2008.
She amended the petition to seek reinstatement as of
April 21, 2009. In an Order circulated by the Bureau on
November 30, 2009, Judge Bruce K. Doman denied
claimant’s Reinstatement Petition . . . . Judge Doman
specifically noted that claimant was involved in a motor
vehicle accident on June 6, 2008, and that she remained
out of work ever since the motor vehicle accident. Since
the motor vehicle accident, claimant collected long and
short term disability benefits and filed a civil complaint
alleging numerous injuries . . . . During that litigation,
claimant treated with Dr. Naftulin through July 29, 2009.
Judge Doman found Dr. Naftulin’s opinion that claimant
was disabled as a result of the motor vehicle accident
credible and persuasive . . . . Based upon the credible
evidence, Judge Doman concluded that claimant failed to
demonstrate that her total disability from the work-
related motor vehicle accident had ended. Consequently,
he denied claimant’s Reinstatement Petition. (Emphasis
added.)

4. Approximately three months after . . . claimant again
filed a Reinstatement Petition, which was again assigned
to Judge Doman. During the litigation on this petition,
claimant acknowledged that she continued to treat for the
motor vehicle accident of June 6, 2008 and that she
continued to receive long term disability benefits as a
result of that accident, with a second lawsuit pending . . .
. After a careful review of claimant’s testimony and the

                             6
medical evidence, Judge Doman concluded that claimant
failed to offer credible evidence that she was no longer
disabled by the two motor vehicle accidents and that her
CRPS had worsened and was now disabling.
Consequently, he once again denied claimant’s
Reinstatement Petition . . . . (Emphasis added.)

5. Claimant appealed Judge Doman’s . . . decision to the .
. . WCAB, who affirmed the decision . . . . Claimant
then took an appeal from the decision of the WCAB to
the Commonwealth Court. The Commonwealth Court
affirmed the decision of the WCAB . . . . (Emphasis
added.)

                 B. Current Litigation

6. Several days after the Commonwealth Court’s decision
on August 22, 2012, claimant filed the current
Reinstatement Petition. (Emphasis added.)

7. As noted in the Commonwealth Court’s decision,
claimant bears the burden of proving a change in her
work related physical condition, such that the reasons for
the September 2007 suspension no longer exist.
(Emphasis added.)
....
11. Defendant [Employer] submitted into evidence the
deposition testimony of Karen Rozak, Karen Rex and the
deposition testimony of claimant from September 15,
2010. However, because there is no evidence that any
job was available to claimant in this litigation, this
testimony is irrelevant and will not be summarized in this
decision. Exhibits D-5, D-6 and D-7.            (Emphasis
added.)

12. Claimant testified at two hearings, one on October
17, 2012, and one on January 23, 2013. Claimant does
not believe she can perform her pre-injury job because
she can hardly walk as a result of the CRPS. Likewise,
she does not believe she can perform the light-duty job

                            7
because of her pain (Hrg. 10/17/12 N.T. 17-18) . . . .
According to claimant, her CRPS has worsened since
2008. She has constant cramping in the back of her leg,
and is unable to sit, stand or walk for long periods of
time. Claimant believes she is entirely unable to work
(Hrg. 1/23/13 N.T. 26-27, 31). Claimant settled the
lawsuit involving her September 2, 2009 motor vehicle
accident . . . . (Emphasis added.)

13. . . . Dr. Naftulin has been treating claimant since July
2008. [Dr. Naftulin] believes claimant is physically
capable of performing sedentary work (N.T. 15) . . . . He
believes claimant’s CRPS is the substantial and
contributing cause of her disability as of January 1, 2011
(N.T. 19-20). The doctor acknowledged that he did not
examine claimant on January 1, 2011.               He also
acknowledged that at the January 25, 2011 visit,
claimant’s chief complaint was for a follow-up of low
back and right leg pain (N.T. 23-24) . . . . The doctor
acknowledged that through February 18, 2013, his
physical exam findings were the same and there was no
dramatic change to claimant’s pain complaints (N.T. 33-
37). Nevertheless, he agreed that the general trajectory
of claimant’s symptoms has worsened (N.T. 41).
(Emphasis in original and added.)

14. . . . He [Dr. Pharo] acknowledged that claimant has
CRPS of the right lower extremity, which occurred after
her patellofemoral contusion and the repair of her
meniscus. He opined claimant can return to work in a
sedentary position with the ability to change position
(N.T. 15). He did not believe claimant has any
limitations other than those for her CRPS (N.T. 32).
(Emphasis added.)

15. Dr. Naftulin’s opinion that claimant’s non-work-
related motor vehicle accident injuries were no longer
contributing to her disability as of January 1, 2011 or
October 19, 2011 is entirely lacking in credibility . . . .
Through Dr. Pharo’s credible testimony, however,

                             8
            claimant has proven that, as of December 7, 2012, her
            non-work-related conditions were no longer disabling.
            (Emphasis added.)

            16. Dr. Naftulin’s opinion that claimant’s work-related
            CRPS of the right lower extremity has worsened is
            entirely lacking credibility . . . . Both Dr. Naftulin and
            Dr. Pharo are credible in their opinions that claimant
            remains physically capable of performing sedentary
            work. (Emphasis added.)

            17. Based upon my observation of her, claimant’s
            testimony that her CRPS has worsened such that she is
            incapable of performing sedentary work or work of any
            kind lacks credibility.    In this regard, claimant’s
            testimony contradicts that of her treating physician.
            Claimant’s testimony that she no longer treated for her
            back as of 2010 also lacks credibility in light of Dr.
            Naftulin’s testimony. (Emphasis added.)

WCJ’s Decision, June 20, 2013, Findings of Fact (F.F.) Nos. 1-7 and 11-17 at 2-5.
The WCJ denied and dismissed Claimant’s reinstatement petition.


            The Board denied Claimant’s appeal and concluded:
            After careful review, we determine the WCJ did not err
            in denying Claimant’s Reinstatement Petition. It was
            Claimant’s burden to establish both that her non-work
            related injury was no longer disabling and that her work
            injury is now causing her loss of earning power . . . .
            Claimant succeeded in establishing her non-work-injury
            resolved but failed to prove her work injury was causing
            her loss of earnings. The certified medical evidence
            established Claimant is in the same position she was in
            immediately prior to going out of work for her non-work-
            related injuries. At that time, Claimant was working
            modified-duty with no loss of wages. Because the WCJ
            rejected Claimant’s testimony, she is without evidence
            establishing she is incapable of working due to her work

                                        9
              injury. Claimant needed to prove the reason for her
              suspension no longer existed . . . .         Claimant’s
              suspension was due to her ability to work the modified
              position. Therefore, Claimant failed to prove her work-
              injury was causing her loss of earnings. (Citations
              omitted and emphasis added.)

Board Opinion, October 6, 2014, at 4-5.


    I. Did Claimant Satisfy Her Burden For A Reinstatement Of Benefits?

              Initially, Claimant contends2 the WCJ erred when she found
“[C]laimant failed her burden by not proving that her condition had worsened so
that she could not perform her 2007 modified duty job.” Brief for Petitioner at 10.
Specifically, Claimant asserts that although the WCJ and Board determined
Claimant “succeeded in establishing her non-work injury resolved . . . [she] failed
to prove her work injury was causing her loss of earnings.” Board’s Opinion at 5.


              Employer responds that Claimant “failed to present any medical
evidence establishing a change in her condition which rendered her unable to
perform her modified-duty job . . . [t]herefore, she failed to meet her burden of
proof for a reinstatement of benefits.” Brief of Respondent at 23.


              A claimant seeking a reinstatement of benefits following a suspension
of benefits must prove that, through no fault of his or her own, the (1) claimant’s
earning power is once again adversely affected by the disability, and (2) the

       2
          This Court’s review is limited to a determination of whether an error of law was
committed, whether necessary findings of fact are supported by substantial evidence, or whether
constitutional rights were violated. Vinglinsky v. Workmen’s Compensation Appeal Board
(Penn Installation), 589 A.2d 291 (Pa. Cmwlth. 1991).



                                              10
disability that caused the original claim continues.      Pieper v. Amtek-Thomas
Instruments Div. and Workmen’s Compensation Appeal Board, 584 A.2d 301 (Pa.
1990).    So the WCJ must determine whether the claimant established a
continuation of her disability and loss of earnings. Pieper.       As the burdened
party, the claimant has to meet both her burden of production and burden of
persuasion regarding the required elements.         Osram Sylvania v. Workers’
Compensation Appeal Board (Wilson), 893 A.2d 186 (Pa. Cmwlth.), petition for
allowance of appeal denied, 906 A.2d 545 (Pa. 2006). Further, the claimant must
show that the non-work injury is no longer disabling and that the work injury is
now causing the loss of earning power. Pucci v. Workers’ Compensation Appeal
Board (Woodville State Hospital), 707 A.2d 646, 648 (Pa. Cmwlth. 1998). Last,
“[a] party seeking to alter the status quo must prove that there has been a change of
physical condition or circumstances since the last legal proceeding addressing the
nature and extent of the disability.” Id. at 648.


             Here, the WCJ rejected Dr. Naftulin’s opinion that Claimant’s CRPS
condition of the right lower extremity had worsened based upon Dr. Naftulin’s
“lack of physical exam findings, diagnostic studies” and a functional capacities
evaluation that would support a physical change in Claimant’s medical condition.
See WCJ’s F.F. No. 15.       The WCJ also rejected Claimant’s testimony that her
CRPS’s condition worsened to such a degree that she was unable to perform
sedentary work of any kind. See WCJ’s F.F. No. 17.


             To the contrary, the WCJ found Dr. Pharo’s testimony credible as
follows: that Claimant was able to return to work in a sedentary position that
allowed her to change positions; and that Claimant, as of December 7, 2012,



                                          11
established that she no longer was disabled from her non-work-related injuries.
See WCJ’s F.F. Nos. 14 and 15.


              The WCJ, as the ultimate finder of fact in compensation cases, has
exclusive province over questions of credibility and evidentiary weight, and is free
to accept or reject the testimony of any witness, including a medical witness, in
whole or in part. General Electric Co. v. Workmen’s Compensation Appeal Board
(Valsamaki), 593 A.2d 921 (Pa. Cmwlth.), petition for allowance of appeal denied,
600 A.2d 541 (Pa. 1991).          This Court will not disturb a WCJ’s findings when
those findings are supported by substantial evidence.3                 Nevin Trucking v.
Workmen’s Compensation Appeal Board (Murdock), 667 A.2d 262 (Pa. Cmwlth.
1995).


              This Court is satisfied that the WCJ properly resolved this issue by
accepting and rejecting the opinions of medical experts and by determining
credibility and weight of evidence. Vols v. Workers’ Compensation Appeal Board
(Buck), 664 A.2d 703 (Pa. Cmwlth. 1995). There was no error.


   II. Was Claimant Required To Prove That Her Work-Related Condition
       Worsened Where A Modified Duty Job Was Found Not Available?

              Claimant next argues that the WCJ found there was no job available
and “[t]herefore, if the modified duty job is no longer available, the reason for the
suspension is eliminated and she is in the same position she was in prior to the
suspension, that is, eligible for TTD (temporary total disability) benefits.” See
       3
        Substantial evidence is relevant evidence a reasonable mind might accept as adequate to
support a conclusion. Bethenergy Mines, Inc. v. Workers’ Compensation Appeal Board
(Skirpan), 612 A.2d 434 (Pa. 1992).



                                              12
WCJ’s F.F. No. 11 and the Brief for Petitioner at 6. Claimant asserts that the non-
availability of her prior modified job or the availability of a subsequent modified
job established that she met her burden for reinstatement.


              Employer responds that “[c]ontrary to Claimant’s assertion, where the
claimant is totally disabled due to a non-work-related condition, the employer is
not required to establish that work is available unless the claimant’s work-related
restrictions increase.” Brief of Respondent at 23.


              In Kachinski v. Workmen’s Compensation Appeal Board (Vepco
Construction Co.), 532 A.2d 374, 380 (Pa. 1987)4, our Supreme Court established
the following procedures governing the return to work of injured employees:


       4
           This Court notes that Kachinski dealt with a modification petition and not a
reinstatement petition as here.        However, in Central Bucks School District v. Workers’
Compensation Appeal Board (Belz), 824 A.2d 387 (Pa. Cmwlth. 2003), this Court applied the
Kachinski analysis to a reinstatement petition. This Court noted:
                Strictly speaking, here benefits were not suspended or terminated,
                but merely reduced from full to partial. However, since the parties,
                the WCJ and the Board, without objection, all considered this to be
                a reinstatement petition rather than a modification petition, we also
                consider it as such. (Emphasis added.)
Id. at 390, n.6. In applying the Kachinski analysis, this Court stated:
                Employer did not present any evidence that a light-duty job would
                be available to Claimant in the fall of 1999. To the contrary, it
                acted as though none would. First, Employer’s principal told
                Claimant that she ‘could not continue this way,’ a statement
                Employer never clarified by bringing in the principal who made it,
                despite an invitation by the WCJ to do so. Claimant also testified
                that it was the principal who suggested to Claimant that she should
                consider a medical sabbatical . . . . Then, when Claimant applied
                for the sabbatical, the school board granted it. Thus, Employer did
                not meet its burden under Kachinski. (Hearing transcript and
                footnote omitted, and emphasis added.)
Id. at 392.



                                            13
             1. The Employer who seeks to modify a claimant’s
             benefits on the basis that he has recovered some or all of
             his ability must first produce medical evidence of a
             change in condition.

             2. The employer must then produce evidence of a referral
             (or referrals) to a then open job (or jobs), which fits in the
             occupational category for which the claimant has been
             given medical clearance, e.g. light work, sedentary work,
             etc. (Emphasis added.)

             3. The claimant must then demonstrate that he has in
             good faith followed through on the job referral(s).

             4. If the referral fails to result in a job then claimant’s
             benefits should continue.


             In Kachinski, Our Supreme Court stressed that both parties must deal
in good faith: “[t]he referrals by the employer must be tailored to the claimant’s
abilities . . . and be made in a good faith attempt to return the injured employee to
productive employment, rather than a mere attempt to avoid paying
compensation.” Id. at 380.       “By the same token, employees must make a good
faith effort to return to the work force when they are able, and their benefits can be
modified for failure to follow up on referrals . . . .” Id. at 380.


             Here, the WCJ found that Claimant’s previous modified job was not
available and that Employer’s evidence concerning Claimant’s previous modified
duties was “irrelevant.” If there was evidence of record that Claimant’s previous
modified job was still available or a new job within Claimant’s medical restrictions
was offered to Claimant, the WCJ’s finding that Claimant “remains physically
capable of performing sedentary work” would be relevant. Instead, the WCJ found
that Claimant was able to perform the duties of her previous modified job that no

                                           14
longer was available.5 Employer’s failure to introduce evidence of job availability
forecloses the possibility that a modified duty job offered seven years ago was still
available to Claimant.        As a result, the Board erred when it denied Claimant’s
reinstatement petition.


               Accordingly, this Court must reverse the Board’s order and remand
for a reinstatement of Claimant’s compensation benefits.


                                             ____________________________
                                             BERNARD L. McGINLEY, Judge




       5
          Employer cites Pitt Ohio Express v. Workers’ Compensation Appeal Board (Wolff),
912 A.2d 206 (Pa. 2006) for the proposition that “[t]here is no requirement that the employer
keep a job offer open indefinitely.” Brief of Respondent at 24. However, our Pennsylvania
Supreme Court stated:
               Claimant’s bad faith relieved employer of the requirement to again
               demonstrate a continued suitable position was available. An
               employer cannot be given a never-ending duty to keep a job
               available for a claimant who rejects it in bad faith. If we allowed a
               claimant to reject a job in bad faith and then place a burden on the
               employer to provide the claimant another job whenever he
               chooses, we would reward bad faith conduct and circumvent the
               purpose of the Workers’ Compensation Act. (Emphasis added.)
Id. at 209.
               Unlike the factual situation in Pitt Ohio Express, here there was no finding of bad
faith on the part of Claimant, and in fact, Claimant had returned to work at a modified duty job
seven years prior.




                                               15
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Elena Horan,                              :
                   Petitioner             :
                                          :
             v.                           :
                                          :
Workers' Compensation Appeal              :
Board (Phoebe Home),                      :   No. 1868 C.D. 2014
                Respondent                :


                                    ORDER

             AND NOW, this 3rd day of August, 2015, the order of the Workers’
Compensation Appeal Board (Board) in the above-captioned matter is reversed and
the matter remanded to the Board for a reinstatement of Claimant’s compensation
benefits.

             Jurisdiction relinquished.


                                          ____________________________
                                          BERNARD L. McGINLEY, Judge
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Elena Horan,                              :
                             Petitioner   :
                                          :
             v.                           :   No. 1868 C.D. 2014
                                          :   Submitted: January 30, 2015
Workers’ Compensation Appeal              :
Board (Phoebe Home),                      :
                      Respondent          :


BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE PATRICIA A. McCULLOUGH, Judge


OPINION NOT REPORTED

CONCURRING OPINION
BY JUDGE BROBSON                              FILED: August 3, 2015

             I agree with the majority’s decision to reverse the order of the
Workers’ Compensation Appeal Board (Board) and remand this matter for a
reinstatement of Claimant’s benefits. I write separately because my approach
differs from the majority.
             This is the third reinstatement petition that Elena Horan (Claimant)
has filed. Our unreported panel decision on her second reinstatement petition
includes a concise summary of the history of Claimant’s disability status:
                   Claimant suffered a work-related injury described
             as right knee pre-patellar bursitis in a Notice of
             Compensation Payable issued by Phoebe Home
             (Employer) on December 13, 2006. Subsequently,
             pursuant to a Notice of Suspension, Claimant’s benefits
             were suspended as of February 27, 2007, when she
             returned to work with no loss of earnings.             A
             Supplemental Agreement was later executed indicating
             that Claimant suffered partial loss of earnings as of her
              return to work on that date, thus entitling her to partial
              disability benefits until March 4, 2007, when she no
              longer has a loss of earnings. Her total disability benefits
              were reinstated on two subsequent occasions, namely
              from March 23 to March 24, 2007, and from
              May 24 through August 26, 2007. Claimant returned to
              work in a modified position on August 27, 2007, without
              a loss of earnings, and her benefits were once again
              suspended on September 2, 2007. Claimant then filed a
              Petition to Review Compensation Benefits, which was
              granted by the WCJ pursuant to a stipulation of the
              parties that Claimant’s injury should include chronic
              regional pain syndrome [(CRPS)] or reflex sympathetic
              dystrophy (RSD) of the right lower extremity. While on
              vacation in June 2008, Claimant was in a motor vehicle
              accident and sustained an injury to her lower back.
              Claimant went out of work and has not returned since
              that date.

Horan v. Workers’ Comp. Appeal Bd. (Phoebe Home) (Pa. Cmwlth., No. 2158
C.D. 2011, filed Aug. 8, 2012), slip op. at 1-2 (footnote omitted).1
              Contending that her non-work injury is no longer disabling and that
her earning power is again adversely affected by her work-related injury, Claimant
filed her current reinstatement petition on August 22, 2012. As the majority notes,
following a hearing, the workers’ compensation judge (WCJ) found that Claimant
was no longer totally disabled from her non-work injury as of December 7, 2012.
The WCJ also found, however, that Claimant did not prove that her work-related
injury, specifically her CRPS, had worsened, such that she could not perform a
modified-duty job, even though there was no evidence that Employer had a
modified-duty job available for Claimant. (WCJ Decision at 5, R.R. 14a.) The


       1
        Claimant was also injured in a second automobile accident, which, according to the
WCJ, also contributed to her disability. (WCJ Decision at 8, Reproduced Record (R.R.) 17a.)



                                         PKB-2
WCJ found that because Claimant failed to prove that she could not perform
modified duty work, she failed to establish her burden of proving that her
work-related injury is again disabling. On appeal, the Board affirmed.
             Here, Claimant’s benefits were suspended because she returned to
work in a modified-duty job without loss of wages. When a claimant is on
suspended status because of a modified-duty job, if that job goes away through no
fault of the claimant (e.g., plant closing, layoff, etc.), the claimant can seek
reinstatement and need not show a change in medical condition. See Polis v.
Workers’ Comp. Appeal Bd. (Verizon Pa., Inc.), 988 A.2d 807, 812 (Pa. Cmwlth.),
appeal denied, 997 A.2d 1180 (Pa. 2010). Indeed, under such circumstances, the
claimant is entitled to a presumption that her loss of earning power is causally
related to the continuing work injury. Vista Int’l Hotel v. Workmen’s Comp.
Appeal Bd. (Daniels), 742 A.2d 649, 657-58 (Pa. 1999).
             To obtain reinstatement, then, Claimant only needed to prove that,
through no fault of her own, her earning power has once again been adversely
affected by her work injury. See Virgo v. Workers’ Comp. Appeal Bd. (Cnty. of
Lehigh-Cedarbrook), 890 A.2d 13, 17-18 (Pa. Cmwlth. 2005). Employer appears
to be arguing that because Claimant could work the modified-duty job prior to the
automobile accident and the WCJ found that she was still able to perform that
modified-duty job, we must conclude that her disability is the same as it was prior
to the auto accident. Because Claimant was able to work the modified-duty job
and did not have any “disability” (i.e., loss of earnings) prior to the auto accident,
Employer argues that Claimant continues to have no disability for purposes of
reinstatement.   What Employer fails to address is that Claimant’s claim of




                                       PKB-3
disability is based on her recovery from her auto accident and the unavailability or
loss of her previous modified-duty job.
              Here, because Claimant does not have the ability to perform the
modified-duty job with Employer because the position is no longer available, her
loss of earnings are attributable to her work-related injury. Saint Luke’s Hosp. v.
Workers’ Comp. Appeal Bd. (Ingle), 823 A.2d 277, 282 (Pa. Cmwlth. 2003).
Under Vista, however, we must also examine whether the circumstances under
which Claimant lost her modified-duty job with Employer merit allocation of the
consequence of that job loss to Claimant, such that Claimant’s reduced earning
power (that being her continued work-related injury and the unavailability of her
prior light-duty job with Employer) is now due to her own fault. Id. (citing Vista,
742 A.2d at 658). I would conclude that under these circumstances, Claimant
should not bear the consequence of losing her light-duty job. A car accident,
unlike a willful misconduct discharge or lack of good faith (e.g., turning down an
available modified-duty job), is not a circumstance that constitutes a “fault”
separation from employment. I would, therefore, conclude that both the WCJ and
Board imposed the wrong legal burden on Claimant in this case and, like the
majority, would reverse and remand the matter for reinstatement of benefits.
              Respectfully, I believe the analysis should end here.      Unlike the
majority, I would not examine whether Employer met its burden under Kachinski
v. Workmen’s Compensation Appeal Board (Vepco Construction Co.), 532 A.2d
374 (Pa. 1987). As the Supreme Court recognized in Vista, an employer may fight
reinstatement “by establishing the availability of work that [C]laimant is capable of
performing.” Pieper v. Ametek-Thermox Instruments Div., 584 A.2d 301, 305 n.8
(Pa. 1990).    Employer, however, did not assert this defense in response to


                                       PKB-4
Claimant’s petition for reinstatement. Indeed, neither of the parties cite Kachinski
in their briefs. I, therefore, would not rule on the question of whether Employer
satisfied its burden under Kachinski, as it is not before us. That is not to say,
however, that Employer is prevented from pursuing a suspension or modification
of benefits based upon Kachinski or otherwise following reinstatement.




                                P. KEVIN BROBSON, Judge




                                      PKB-5
