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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
CHARLES STEVENS,
:
Petitioner
:
:
v.
: No. 1035 C.D. 1998
: Submitted: July 24, 1998
WORKERS' COMPENSATION
:
APPEAL BOARD (CONSOLIDATION :
COAL COMPANY),
:
Respondent
:
BEFORE:
HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE DAN PELLEGRINI, Judge
HONORABLE CHARLES A. LORD, Senior Judge
OPINION BY
SENIOR JUDGE LORD
FILED: November 23, 1998
Charles Stevens (Claimant) appeals a Workers' Compensation Appeal
Board (Board) order which reversed a Workers' Compensation Judge's (WCJ)
decision granting his reinstatement petition pursuant to the Pennsylvania Workers'
Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-
1041.4.
The WCJ found the following facts. On April 15, 1980, Claimant,
while working for Consolidation Coal Company (Employer) sustained an injury to
his low back. Claimant began receiving compensation at the total disability rate of
$242.00 per week, with an average weekly wage stated as $511.69. Claimant
attempted to return to work in the coal industry, but was unable to perform that
type of work. In 1991, Claimant returned to school and received an Associates'
Degree in Corrections Administration from the Community College of Allegheny
County. Subsequently, Claimant obtained employment with Interstate
Investigations, a private investigation firm, where he worked for approximately

three years. In April of 1994, Claimant began working with a different
investigation firm, Becker and Company. Claimant's earnings with that employer
exceeded his pre-injury average weekly wage as of June 1994, which led to the
execution of a supplemental agreement dated July 14, 1994, suspending benefits as
of June 19, 1994. In October of 1994, Claimant was terminated from his
employment with Becker and Company. Claimant's testimony that he attempted
to perform the job to the best of his ability was accepted as credible by the WCJ.
Also accepted as credible by the WCJ was the testimony of Joseph Becker,
President of Becker and Company, who stated that Claimant tried to do his best,
but was not able to meet the standards of Becker and Company.1 On March 20,
1995, Claimant filed a petition of reinstatement of total disability benefits as of
October 6, 1994, his last day of employment with Becker and Company.
By a Decision and Order dated May 14, 1996, the WCJ granted the
reinstatement petition. On Employer's appeal, the Board affirmed the WCJ's
Decision. On December 29, 1997, Employer filed a petition for rehearing before

1 The WCJ in finding of fact 13 specifically stated:
"Based upon the testimony of record, it is found as a fact that from
October 6, 1994, through and including March 27, 1995, claimant
was not working through no fault of his own, while continuing to
suffer residuals of his work injury that restricted him to alternative
employment. In making this finding, the testimony of the claimant
as well as the testimony of Mr. Becker has been considered. The
claimant's testimony that he attempted to perform the job to the
best of his ability is accepted as credible. Further, Mr. Becker's
testimony that the claimant did try to do his best, but that it was
just not up to the standards expected by Mr. Becker is accepted as
credible. The testimony as a whole leads to a finding and
conclusion that the claimant did perform his work with Becker and
Company to the best of his ability, but through no fault of his own
was unable to meet the standards expected of him, leading to his
termination from employment on October 6, 1994."
2

the Board. Employer's petition for rehearing was granted and the Board reversed
the WCJ's Decision, finding that the WCJ had applied the incorrect burden of
proof. Claimant now appeals to this Court.
Our scope of review is limited to determining whether constitutional
rights were violated, errors of law were committed or necessary findings of fact
were unsupported by substantial evidence. Crenshaw v. Workmen's
Compensation Appeal Board (Hussey Copper), 645 A.2d 957 (Pa. Cmwlth. 1994).
There is no doubt that the WCJ is the sole judge of questions of credibility and
may accept or reject the testimony of any witness in whole or in part. Id. We
cannot disturb findings of the WCJ, even if there is evidence to the contrary, if
those findings are supported by substantial evidence. Id.
The issue presented in this case is whether Claimant satisfied his
burden of proof in seeking the reinstatement of his total disability benefits. In
Pieper v. Ametek-Thermox Instruments Division, 526 Pa. 25, 584 A.2d 301
(1990), the Supreme Court indicated that a claimant seeking to reinstate suspended
benefits must prove that (1) through no fault of his own his earning power is again
adversely affected by his disability and (2) the disability which gave rise to the
original claim continues. See also Hertz-Penske Truck Leasing Company v.
Workmen's Compensation Appeal Board (Bowers), 546 Pa. 257, 684 A.2d 547
(1996). In application of this standard, this Court has recently held in Eljer
Industries v. Workmen's Compensation Appeal Board (Evans), 707 A.2d 564 (Pa.
Cmwlth. 1998), that a claimant whose benefits have been suspended may receive a
reinstatement of benefits if he is not capable of performing the post-injury job that
resulted in suspension. In Eljer, the claimant filed a reinstatement petition,
requesting an increase in the partial disability rate he had been receiving as a result
of his transfer from his pre-injury job as a placer to a lower paying post-injury job
as a sprayer and his subsequent transfer from the sprayer position, due to his
3

inability to perform that job, to the even lower paying position of ware hustler.
This Court, deciding to increase claimant's partial disability benefits, wrote:
"While his inability to work as a sprayer is not due to his
injury, Claimant was, in essence, unqualified for the
sprayer position because he could not develop the
requisite occupational skills necessary to perform the
work. Because his work injury continues, however, he is
still unable to physically perform his pre-injury job of
placer, he is entitled to a presumption that his disability is
still causally related to his work injury and but for the
availability of the ware hustler job, could be entitled to
reinstatement of total disability benefits. See McKay v.
Workmen's Compensation Appeal Board (Osmolinski),
688 A.2d 259 (Pa. Cmwlth. 1997). Here, as a result of
his physical disability from his pre-injury job and the ill-
fated decision to attempt a job for which he lacked the
necessary skills, Claimant was transferred to light duty
position as a ware hustler which pays less than his pre-
injury position. Therefore, Claimant is entitled to receive
partial disability benefits of sixty-six and two-thirds
percent of the difference between his initial average
weekly wage and his present earning power."
Id., 707 A.2d at 567-568 (emphasis added).
As previously mentioned, the WCJ found that Claimant had physical
restrictions rendering him unable to perform his pre-injury job. The WCJ also
found that, although Employer agreed Claimant performed to the best of his
abilities, Claimant was not capable of performing the job of private investigator
with Becker and Company. Thus, Claimant met his burden to show that his
earning power was adversely affected, through no fault of his own, by his
continuing disability. The Board, in its reversal of the WCJ's decision granting a
reinstatement of benefits, failed to take into account the Pieper standard as
articulated in Eljer. See also Francisco v. Workers' Compensation Appeal Board,
4

707 A.2d 584 (Pa. Cmwlth. 1998) (claimant who returns to work under suspension
with medical restrictions entitled to presumption that disability is related to work
injury in proving Pieper-Ametek elements, but claimant returning to work without
restrictions to pre-injury job must affirmatively establish injury is causing loss of
earnings). As a result, the Board incorrectly reversed the WCJ's order granting a
reinstatement of total disability benefits even though Claimant was not capable of
performing his post-injury job.
Accordingly, the order of the Board is reversed.

CHARLES A. LORD, Senior Judge
Judge Pellegrini dissents.
5

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
CHARLES STEVENS,
:
Petitioner
:
:
v.
: No. 1035 C.D. 1998
:
WORKERS' COMPENSATION
:
APPEAL BOARD (CONSOLIDATION :
COAL COMPANY),
:
Respondent
:
O R D E R
AND NOW, this 23rd day of November, 1998, the order of the
Workers' Compensation Appeal Board, No. A96-2186, dated March 11, 1998, is
hereby reversed.

CHARLES A. LORD, Senior Judge