Submitted: October 28, 2013
On Appeal from Decision of the Industrial Accident Board
Timothy E. Lengkeek, Esquire, Young Conaway Stargatt & Taylor, Attorney for Employee-Appellant.
John W. Morgan, Esquire, Heckler & Frabizzio, Attorney for Employer-Appellee.
Andrea L. Rocanelli, Honorable Judge
This is an appeal by Jose Campos ("Appellant") from the June 26, 2013 decision of the Industrial Accident Board ("Board"). The Board granted Daisy Construction Company's ("Daisy") Petition for Review terminating Appellant's total disability benefits and finding him ineligible for partial disability benefits. The Board found that Appellant is physically capable of returning to work and that he does not qualify as a displaced worker. On September 19, 2013, Appellant appealed the Board's decision citing that the Board committed an error of law. For the reasons set forth below, the Board's decision is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant was employed at Daisy Construction Company ("Daisy") as a heavy equipment operator. On June 3, 2011, while working as part of a traffic crew, Appellant was thrown off the back of a truck when it suddenly stopped. As a result of this fall, Appellant suffered injuries to his left shoulder and lower back. Appellant initially missed three or four days of work after the accident but then returned to work in a light-duty position. In November 2011, Appellant underwent shoulder surgery and was placed on total disability. During the processing of Appellant's workers compensation claim, it was discovered that Appellant's Social Security number did not match his name. On November 7, 2011, Daisy sent a letter to Appellant requesting he provide his correct Social Security number, which Appellant failed to do. On December 16, 2011, Daisy terminated Appellant citing their inability to continue to employ Appellant due to immigration requirements and his failure to provide a valid Social Security number. However, Daisy indicated they would offer Appellant work if he were able to supply a valid Social Security number. In April 2012, Appellant underwent additional surgery to Appellant's lumbar spine.
Daisy filed a Petition for Review on September 6, 2012. The Board concluded that Appellant is not entitled to total disability benefits nor is he eligible for partial disability benefits.
The Board's Decision
The Board conducted a hearing on May 24, 2013. At the hearing, the evidence consisted of testimony by Appellant, Edward Stepp, a risk manager with Daisy, Dr. Stephen Rodgers and the depositions of Dr. Jerry Case and Dr. Ali Kalamchi. In its June 26, 2013 decision, the Board made the factual finding that Appellant was physically capable of returning to work full time. In reaching this conclusion, the Board considered the testimony of Dr. Case who opined that Appellant is capable of returning to sedentary duty, full time work. Additionally, Appellant testified that he could go back to work operating milling machines. Based on this evidence, the Board concluded that Appellant was capable of returning to work. Therefore, the Board granted Daisy's petition to terminate total disability.
Next, the Board addressed if Appellant qualified as a displaced worker. The Board rejected Appellant's argument that Daisy was seeking a forfeiture of benefits based on Appellant's immigration status. The Board found that Daisy was willing to accommodate Appellant and have him return to work, however, absent a valid Social Security number, Daisy cannot legally hire Appellant. Accordingly, the Board concluded that Appellant's lost earnings were not causally related to a work related injury and does not qualify as a displaced worker eligible for partial disability benefits.
STANDARD OF REVIEW
This Court's scope of review on appeal is limited to determine whether the Board's factual findings are supported by substantial evidence and free from legal error.Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. On appeal, this Court will not weigh the evidence, determine questions of credibility, or make its own factual findings. Questions of law are reviewed de novo. Absent an error of law, the standard of review for a Board's decision is abuse of ...