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Home My WebLink About02-0141HARRY HOOVER, 1015 Mifflin Street Huntingdon, PA 16652 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, VS. : : ABF FREIGHT SYSTEM, INC., : P.O. Box 1925 : New Kingston, PA 17072 : Defendant. : NO. 002 - lq/ CIVIL ACTION - LAW PRAECIPE FOR JUDGMENT FOR DEFAULT OF WORKERS' COMPENSATION PAYMENTS PURSUANT TO SECTION 428 OF THE PENNSYLVANIA WORKERS' COMPENSATION ACT TO THE PROTHONOTARY: Pursuant to Section 428 of the Pennsylvania Workers' Compensation Act, 77 P.S. § 921, kindly enter judgment in favor of Plaintiff, Harry Hoover, and against Defendant, ABF Freight System, Inc., in the amount of $30,000.00 in accordance with the Opinion and Order of the Workers' Compensation Appeal Board dated October 11, 2000, a certified copy of which is attached hereto. The compensation so payable to Plainfiffis for total and permanent disability, and the Defendant is in default in compensation payments for thirty days or more. Respectfully submitted, TOMASKO & KORANDA, P.C. 219 State Streot~ Harrisburg, J~/17101 [ By.~ L/Vt,_ _l~_ _\~ wt~.t~ · ' RONALD T. TOMASKO PA ID #61190 Attorney for Plaintiff COMMONWEALTH OF PENNSYLVANIA WORKERS · COMPENSATION APPEAL BOARD HARRISBURG ....... HARRy HOOVER 1015 MIFFLIN STREET HUNTINGDON, PA 16652 vs. ABF FREIGHT SYSTEMS PO BOX 10048 FORT SMITH, AR 72917 A00-0197 APPEAL BY CLAIMANT : FROM ORDER OF : WC JUDGE VONADA S.S. # 201-38-7661 : HARRISBURG/APRiL, 2000 REVERSED SELF-INSURED : INSURANCE CARRIER RONALD T. TOMASKO, ESQUIRE 219 STATE STREET HARRISBURG, PA 17101 CLAIMANT' S COUNSEL MIC~IAEL A. FARRELL, ESQUIRE 2000 LINGLESTOWN ROAD SUITE 108 HARRISBURG, PA 17110 DEFENDANT'S COUNSEL COMMONWEALTH OF PENNSYLVANIA WORKERS, COMPENSATION APPEAL BOARD HARRISBURG HARRy HOOVER 1015 MIFFLIN STREET HUNTINGDON, PA 16652 ABF FREIGHT SYSTEMS P 0 BOX 1149 FORT SMITH, AR 72917 J A00-0322 APPEAL BY CLAIMANT FROM ORDER OF WC JUDGE VONADA : S.S. # 201-38-7661 : I{ARRISBURG/APRIL, 2000 REVERSED SELF-INSURED : INSURANCE CARRIER RONALD T. TOMASKO, ESQUIRE 219 STATE STREET HARRISBURG, PA 17101 CLAIMANT, S COUNSEL MICHAEL A. FARRELL, ESQUIRE 2000 LINGLESTOWN ROAD SUITE 108 HARRISBURG, PA 17110 : DEFENDANT,S COUNSEL A00-0197 A00-0322 Page 2 OPINION MCINTYRE, COMMISSIONER: Harry Hoover (Claimant) appeals from two Decisions of the Workers' Compensation Judge (Judge). The Judge granted the Petition to Modify Compensation Benefits (Modification Petition) filed by ABF Freight Systems (Defendant) and denied the Petition to Reinstate Compensation Benefits (Reinstatement Petition) filed by Claimant. We reverse the Decision of the Judge. Pursuant to a Notice of Compensation Payable, Claimant began receiving compensation benefits for work-related numbness of the left leg and lower back that occurred on September 11, 1993. Claimant was a member of the union at the time of his work-related injury (N.T. 3/08/95, p. 42). Thereafter, Defendant filed a Modification Petition alleging that, as of December 8, 1994, Defendant offered Claimant a light-duty position within his restrictions and that Claimant refused to accept that job. The job offered to Claimant was a non-union position. Claimant filed an Answer denying the allegations set forth in Defendant's Modification Petition. After hearing all the evidence presented, the Judge concluded that acceptance of the non-union job offered by Defendant would not have jeopardized. Claimant's union seniority status and would result in the receipt by Claimant of a benefits package which is equivalent to the benefits package of a union position. Accordingly, the Judge granted Defendant's Modification A00-0197 A00-0322 Page 3 Petition. Claimant appealed arguing that the Decision of the Judge was not supported by substantial, competent evidence and that the Judge erred as a matter of law in rendering the Decision. On January 29, 1997, Claimant filed a Reinstatement Petition alleging that, as of December 13, 1996, Claimant was informed that modified-duty work was no longer available. Therefore, Claimant requested a reinstatement of benefits as of that date. On April 17, 1998, this Board issued a Decision wherein we remanded this case to the Judge to allow him to consider after discovered evidence in the nature of a grievance/arbitration decision. On January 14, 2000, the Judge issued a second Decision concluding that Claimant failed to prove that he is entitled to a reinstatement of benefits. The Judge further concluded that, after considering the grievance decision, Defendant's Modification Petition should be granted. Accordingly, the Judge denied the Reinstatement Petition and granted the Modification Petition. Claimant appeals arguing that the Decision of the Judge is not supported by substantial, competent evidence and that the Judge erred as a matter of law in rendering the Decision. Our scope of review is limited to determining whether there is substantial, competent evidence to support necessary findings of fact made by the workers' compensation judge and whether the workers' compensation judge committed an error of law..Bethener.qy Mines, Inc. v. Workmen's Compensation Appeal ~, 531 Pa. 287, 612 A.2d 434 (1992). We are bound by the A00-0197 A00-0322 Page 4 findings of the workers' compensation judge unless there is no competent evidence of record to support those findings. Id. When an employer seeks to modify or suspend a claimant's benefits on the basis that the claimant has partially recovered, the employer must produce evidence of a change in the claimant's condition. Kachinski v. Workmen's Compensat on Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987). The employer must also produce evidence of a referral to an available job that is within the limitations of the claimant's disability. Id. If the employer produces this evidence, then the claimant must show that he acted in good faith to follow through on the job referral. Id. If the claimant fails to make such a showing, then his benefits can be modified. Id. Furthermore, "[flor purposes of an employer's petition to modify compensation, our courts have held that an offered alternative position will not be 'actually available' if it requires a claimant to forfeit his union benefits gained from the former position." Interstate Container Corp. v. Workers' Compensation Appeal Board (Keim), 710 A.2d 1249, 1252 (Pa. Cmwlth. 1998) (citing St. Joe Container Co. v. Workmen's Compensation Appeal Board (Staroschuck), 534 Pa. 347, 633 A.2d 128 (1993). St. Joe Container "recognizes the distinction between easily duplicated traditional employment benefits, e.g, compensation, vacation, insurance and pension, and the intangible benefits that are historically only available through union membership, e.g., job security, access to a grievance process and the A00-0197 A00-0322 Page 5 right to strike ... Accordingly, [because] ... there is not a suitable substitute for certain union benefits, a non-union position is unavailable to a unionized claimant as a matter of law even where the employer presents an arguably comparable traditional benefits package." ABF Freight Systems, Inc. v. Workmen's Compensation Appeal Board (Iten), 744 A.2d 348, 351-352 (Pa. Cmwlth. 2000). Stephen Walters is the Branch Manager of Defendant'.s facility in Carlisle, Pennsylvania (N.T. 9/19/95, p. 3). He testified that Claimant was offered a non- union position on December 8, 1994 (N.T. 9/19/95, p. 4). Mr. Walters also stated that, if Claimant accepted the non-union job offered by Defendant, he would not be able to take advantage of the grievance procedures available to union employees under the Collective Bargaining Agreement (N.T. 9/19/95, pp. 25-26). Also, if Claimant were called to jury duty, Defendant would be under no obligation to pay his lost wages, whereas union employees would be able to recover lost wages (N.T. 9/19/95, p. 33-34). Furthermore, unlike union employees, Claimant would not be guaranteed any cost of living pay increases if he were to accept the offered non-union job (N.T. 9/19/95, p. 34). The Judge accepted the testimony of Mr. Walters as credible. Upon review of the record, we have determined that the Decision of the Judge is erroneous as a matter of law. Mr. Walters credibly testified that, if Claimant were to accept the offered non-union job, he would not be able to take advantage of certain benefits and protections available to union members. A00-0197 A00-0322 Page 6 Therefore, as per St. Joe Container and ABF, because Claimant was a member of the union before his injury and the offered job did not provide the same union benefits that were available at his pre-injury job, the offered job was not actually available to Claimant. Therefore, the Judge erred by granting Defendant's Modification Petition.~ Accordingly, we enter the following Order. ~ Because we reverse the Decision of the Judge granting Defendant's Modification Petition, we do not need to address the Judge's denial of Claimant's Reinstatement Petition or the other issues raised by Claimant in his appeal. A00-0197 A00-0322 Page 7 ORDER The Decision of the Judge granting Defendant's Modification Petition is hereby reversed. CONCURREDIN BY: 30MMiONER' BY THE BOARD: \ M~;INTYRE~, C~O'~SIONER j ScOM~ML !l~, COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF LABOR AND INDUSTRY WORKERS' COMPENSATION APPEAL BOARD 901 N. 7TH STREET; 3RD FLOOR SOUTH HARRISBURG, PA 17102-1412 HARRY HOOVER, Claimant 1015 MIFFLIN STREET HUNTINGDON, PA 16652 O~inion Mailing Date: 10/11/00 A00-0197 ABF FREIGHT SYSTEMS, Defendant PO BOX 10048 FORT SMITH, AR 72917 SELF- INSU~ RONALD T. TOMASKO, ESQUIRE 219 STATE STREET HARRISBURG, PA 17101 MICHAEL A. FARRELL, ESQUIRE 2000 LINGLESTOWN ROAD SUITE 108 H~RISBURG, PA 17110 Attached is a cop~ of an Opinion from the Workers' Compensation Appeal Board filed this date in the above-captioned case. An appeal to the C--onwealth tour= of Pennsylvania may be taken by any party aggrieved by the Board's decision, provided such appeal is tak-_nwi~h4- (30) days a£ter ~h~ mm414,= date ~r the Board's decision. The Board has nothing to do with the filing or processing of £urther appeals to the Court. Further appeals may be filed in person or by mail (ecc~D. anied by U.S. Postal Services Fom 3817) with the Prothono=ar~ of the C~onwealth Court o£ Pennsylvania, Room 620 South Office Building, Harrisburg, Pennsylvania, 17120. Atteoh--~nt COMMONWEALTN OF PENNSYLVANIA DEPARTMENT OF LABOR AND iNDUSTRY WORKERS' COMPENSATION APPEAL BOARD 901 N. 7TR STREET; 3~D FLOOR SOUT~ ~ARRISBUR~, PA 17102-1412 HARRY HOOVER, Claiman~ 1015 MIFFLIN STREET HUNTINGDON, PA 16652 Opinion Mailing Da~e: 10/11/00 A00-0322 ABF FREIGHT SYSTEMS, Defendant P 0 BOX 1149 FORT SMITH, AR 72917 SELF-INSURED RONALD T. TOMASKO, ESQUIRE 219 STATE STREET HARRISBDI~G, PA 17101 MICHAEL A. FARR~LL, ESQUIRE 2000 LINGLESTOWNROAD SUITE 10B HARRISBURG, PA 17110 Attached is a copy of an Opinion from the Workers' Comp&ns&=ion Appeal Board £iled ~ie date in the a~ove-oaptioned case. An appeal to ~e C.~=~enweal~ Court of Penns~lvaniamay bm taken by any p&rty &~rieved ~F =he Board's decision, the Board's decision. The Board hms nothing to 40 wi~h ~e filing or processing of £ur~er appeals to the Court. Further appeals may bm filed in person or ~ mail (aocom~anied by U.S. Pos=&1 Services Fom 3817) wi~h the Prothono~ar~ of ~e Co~naonweal~ Court of Penn~lv&nim, Ho~ 620 Sou~h Offioe Bu~l~ng, Hmrrisbux~, Pe~eylva~i&, 17120. OEIVO8 'lV:lddV NOI/~SN:IdI~OD ,SEI:I)IEION~ Q)-1¥08 'lV'::ldd¥ NOI/"CSN3dlAIOO uewJ!eqD 000~: ~I3~30.LDO jo Agp H.I. N ~]3.1.]3 N I N s!q3, Pe~!lJeD 'AJ~,snpul pue Joqg-I Jo ~,ueuJ1Jedec] eq~, ~o uo!~ -esueduJoo ,sJe~JoAA ~o neeJn8 eq3 u! elg uo SU!eLUeJ euJes eq~, se m, eldLUOO pue eJp, ue 'lln~ se (Z~:£0-00V pue /-6/0-00V) SIN3.LSAS -LHDI:3~IJ =ll3V 'A ~I3AOOH A~I~IVH ~toeseoeq~,u~ 000Z '[[ a3aoJ. DO a3±va aaaao QNV NOI N ldO aavoa v jo Adoo ],oeJJOO pue enJ~, e eq ol pe!,qlJeo AqeJeq s! §u!o§eJo,[ eq/ ~ LIH.-~O LL L ~'d 'gI:INSSI~I:IYH H/NOS ~OOl-I QI::I£ '/::I::I~J/S HJ.L 'N 1,06 9NIC]'IlN8 S:11¥1:30SS~' 'lO/IdVO Or:IV08 'lV=lddV NOI.LVSN3dlNOO ,SI:F:I)IaONt oo-~ ~u o~,;,son ~oo O~ U~ --0 ~J U HARRY HOOVER, 1015 Mifflin Street Huntingdon, PA 16652 Plaintiff, VS. ABF FREIGHT SYSTEM, INC., P.O. Box 1925 New Kingston, PA 17072 Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NOTICE OF JUDGMENT TO THE DEFENDANT, ABF FREIGHT SYSTEM, INC.: NOTICE IS HEREBY GIVEN THAT A JUDGEMENT IN THE ABOVE-CAPTIONED MATTER HAS BEEN ENTERED AGAINST YOU. JUDGEMENT AMOUNT: $30,000.00 pR~)THONOTARY v If you have any questions concerning the above, please contact: Ronald T. Tomasko, Esquire Tomasko & Koranda, P.C. 219 State Street Harrisburg, PA 17101 Telephone: (717) 238-1100 LAW OFFICEs TOMASKO ~g KOR'ANOA, P.C. 219 STA~'e STk£E~' H^Rk,S~VRG, P£~NSYLVAN~A 17101 T~LEP.ONE: (717) 238-1100 F^X: (717) 238-6190 HARRY HOOVER, 1015 Mifflin Street Huntingdon, PA 16652 Plaintiff, VS. ABF FREIGHT SYSTEM, INC., P.O. Box 1925 New Kingston, PA 17072 Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-141 Civil Term CIVIL ACTION - LAW PRAECIPE TO SATISFY JUDGMENT FOR DEFAULT OF WORKERS' COMPENSATION PAYMENTS PURSUANT TO SECTION 428 OF THE PENNSYLVANIA _WORKERS' COMPENSATION AC~T TO THE PROTHONOTARY: Kindly mark the default judgment in favor of Plaintiff, Harry Hoover, and against Defendant, ABF Freight System, Inc., in the amount of $30,000.00 in the above-captioned action as fully satisfied. Respectfully submitted, TOMASKO ~'~)RANDA, P.C. 219 State Stj4e~M~ f THarrisburg~P/t(~/l ~101 / [ PA/D #61190 Attorney for Plaintiff