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The claimant must present medical evidence to defeat a modification petition where the employer's medical expert testifies that the claimant may work 40 hours a week and up to 10 hours in any single day.

January 1, 2010
World Kitchen, Inc. v. WCAB (Rideout); 1789 C.D. 2008; filed June 25, 2009; by Judge Leavitt

The claimant sustained a work-related injury to her low back and was awarded total disability benefits after filing a claim petition. The employer's doctor released the claimant to perform sedentary work, 40 hours per week, and the employer made a job available to her. The claimant did report back to work, and the employer issued a Notice of Modification, modifying the claimant's benefits. The claimant then challenged the Notice of Modification, and an adjustment in the claimant's partial disability benefits was made. The employer also filed a modification petition based on the specific job it had made available to the claimant. During litigation of the modification petition, the claimant said that she should be able to do full-time work but argued that she sometimes had to go home because of back pain. The employer presented testimony from a Board Certified neurosurgeon who approved various factory jobs that the employer had available for the claimant and who said that he saw no reason for the claimant to miss work, come in late, or leave early. The employer also presented testimony from witnesses regarding job availability and the claimant's absences, including those where she requested leave under the Family Medical Leave Act. The workers' compensation judge granted the modification petition but ordered payment of partial disability benefits based on the claimant's actual earnings. The Appeal Board affirmed. On appeal to the Commonwealth Court, the employer argued that the claimant's testimony alone was not sufficient to defeat the employer's medical evidence offered to support its modification petition, which evidence was credited by the workers' compensation judge. The Commonwealth Court agreed and ordered the claimant's benefits to be modified, based on the availability of suitable employment for 40 hours per week, and ongoing. The Court concluded that because the employer made available to the claimant appropriate work within her capabilities and restrictions imposed by the employer's expert, the employer met its burden under Kachinski for obtaining a modification of benefits. The employer showed, through unrebutted medical evidence, that the full-time job it provided the claimant fell within the restrictions required by the claimant's work injury, and the claimant presented no medical evidence to the contrary.

Case Law Alert, 1st Qtr 2010

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Francis X. Wickersham
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(610) 354-8263
fxwickersham@mdwcg.com

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