1. law, govt and politics

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
William Conyers,
Petitioner
v.
Workers’ Compensation Appeal
Board (PPL Corporation),
Respondent
BEFORE:
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: No. 960 C.D. 2014
: Submitted: November 21, 2014
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HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE FRIEDMAN
FILED: January 30, 2015
William Conyers (Claimant) petitions for review of the May 14, 2014,
order of the Workers’ Compensation Appeal Board (WCAB) affirming the decision
of a workers’ compensation judge (WCJ) to dismiss Claimant’s claim and
modification petitions and grant Claimant’s reinstatement petition.
The WCJ
reinstated temporary, total disability workers’ compensation (WC) benefits to
Claimant from August 20, 2010, to December 10, 2010, and, thereafter, reduced his
WC benefits to partial under the terms and conditions of the Workers’ Compensation
Act (Act).1 We affirm.
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
Claimant began working on utility poles as a lineman for the PPL
Corporation (Employer) in 1987. On October 9, 2008, Claimant suffered bilateral
carpal tunnel syndrome, which Employer acknowledged as a work-related injury
through a notice of compensation payable (NCP) issued on January 30, 2009.
Claimant began receiving total WC benefits. (WCJ’s Findings of Fact, Nos. 1-5;
N.T., 9/22/11, at 8-9.)
On September 2, 2009, Employer sent Claimant a notice of ability to
return to work (Notice).2 Thereafter, Claimant returned to restricted-duty work at
Employer’s Wilkes-Barre office with a salary reduction, and his WC benefits were
reduced to partial. Claimant continued to work restricted duty until August 20, 2010,
when he was asked to leave work pending the results of an investigation.3 Thereafter,
Employer continued to pay Claimant his salary plus partial WC benefits. (WCJ’s
Findings of Fact, Nos. 5, 7; N.T., 9/22/11, at 14, 17, 27; N.T., 4/26/12, at 7, 9-10;
Notice at 1.)
Subsequently, Employer stopped paying Claimant’s salary and, on
March 16, 2011, Claimant filed claim, modification, and reinstatement petitions
seeking reinstatement of total WC benefits as of August 2010. (WCJ’s Findings of
Fact, No. 1; N.T., 4/12/11, at 8-10; Claim Pet., 3/16/11, at 1-2.)
2
The September 2, 2009, Notice is included in the supplemental certified record.
3
It is undisputed that Claimant was placed on leave for reasons unrelated to his work-related
injury.
2
At the WCJ’s hearing, Claimant testified in pertinent part that Employer
told him to leave work on August 20, 2010, and remain off pending the results of an
investigation. Claimant further testified that during a December 1, 2010, telephone
conversation with Brian Matweecha, Employer’s field manager, Matweecha told
Claimant about a position at Employer’s Hazleton office but did not offer Claimant
the position. Claimant stated that his treating physician restricted his driving on
December 3, 2010, as a result of the work-related injury. Claimant testified that he is
incapable of driving to Hazleton, which he stated is a 35- to 40-minute drive from his
home in Wilkes-Barre. (WCJ’s Findings of Fact, No. 7; N.T., 9/22/11, at 14, 17-19,
27, 31-33, 36.)
Claimant submitted the deposition testimony of Michael Grasso, M.D.,
Claimant’s treating physician since 2005. In 2008, due to Claimant’s work-related
injury, Dr. Grasso restricted Claimant from using heavy or vibrating tools. On
December 3, 2010, Dr. Grasso, without re-examining Claimant, added the restriction
of “no long-distance driving,” which he defined as approximately one hour of straight
driving.4 (WCJ’s Findings of Fact, No. 8; Grasso Dep., 8/25/11, at 18, 42-43, 56.)
Matweecha testified on behalf of Employer that Claimant was asked to
leave work on August 20, 2010, for reasons unrelated to his work-related injury.
Matweecha further testified that on December 1, 2010, he telephoned Claimant and
4
Dr. Grasso testified that he did not examine Claimant but added the “no-long-distance
driving” restriction at Claimant’s request on December 3, 2010. Dr. Grasso further stated that
driving between Wilkes-Barre and Hazleton takes about one hour, and that driving one hour is
“long[-]distance driving.” (Grasso Dep., 8/25/11, at 18, 42-43, 56.)
3
offered him a position within his restrictions at Employer’s Hazleton office.
Matweecha testified that Claimant declined the position because his work-related
injury prevented him from driving to Hazleton. Matweecha informed Claimant that
Employer did not have a driving restriction for Claimant on record. Thereafter, on
December 3, 2010, Claimant submitted a revised list of work restrictions to
Employer, indicating that Claimant was restricted from driving long distances.
(WCJ’s Findings of Fact, No. 7; N.T., 4/26/12, at 4, 15-17, 20-21, 23.)
Employer presented the deposition testimony of William Spellman,
M.D., who examined Claimant on four occasions; January 16, 2009, August 21,
2009, April 16, 2010, and February 7, 2011.
Dr. Spellman acknowledged that
Claimant suffers from work-related, bilateral carpal tunnel syndrome and, following
Claimant’s carpal tunnel surgery, agreed that Claimant should not engage in work
requiring vigorous use of his hands. On April 16, 2010, Dr. Spellman noted that
Claimant was working restricted duty. Dr. Spellman examined Claimant again on
February 7, 2011, and opined that Claimant could continue working within his
existing restrictions.
Dr. Spellman testified that driving from Wilkes-Barre to
Hazleton would not be problematic for someone with carpal tunnel syndrome.
(WCJ’s Findings of Fact, Nos. 9-10.)
The WCJ found that the reason for Claimant’s separation from work on
August 20, 2010, was unclear but that neither party attributed Claimant’s departure to
his work-related injury. The WCJ credited Employer’s testimony that, on December
4
1, 2010,5 Employer offered Claimant a position within his restrictions at Employer’s
Hazleton office. The WCJ discredited Claimant’s and Dr. Grasso’s testimony that
Claimant was unable to drive from Wilkes-Barre to Hazleton. The WCJ credited Dr.
Spellman’s testimony that the drive to Hazleton would not be problematic for
Claimant.
The WCJ further found it interesting that Dr. Grasso did not limit
Claimant’s driving until after the Hazleton position became available. (Id., No. 10.)
The WCJ dismissed Claimant’s claim petition as moot because
Employer had issued a NCP recognizing the work injury of October 9, 2008. The
WCJ granted Claimant’s reinstatement petition because Employer failed to offer
Claimant suitable work from August 20, 2010, until December 10, 2010. The WCJ
then reduced Claimant’s WC benefits to partial on December 10, 2010, because
Claimant refused Employer’s offer of suitable employment.6 (WCJ’s Op., 10/31/12,
at 3.) Claimant appealed to the WCAB that portion of the WCJ’s order that reduced
Claimant’s WC benefits to partial disability as of December 10, 2010. The WCAB
affirmed, and Claimant now petitions this court for review.7
5
The WCJ refers to December 10, 2010; however, the record indicates that Matweecha
offered Claimant the Hazleton position on December 1, 2010.
6
Employer did not appeal the award of total disability WC benefits from August 20, 2010,
through December 10, 2010, and, thus, this part of the WCJ’s award is not before our court.
7
Our review is limited to determining whether constitutional rights were violated, whether
the adjudication is in accordance with the law, and whether the necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
5
Initially, Claimant contends that the WCJ erred in reducing his WC
benefits to partial disability as of December 10, 2010, because Employer did not issue
a notice of ability to return to work or meet the requirements set forth in Kachinski v.
Workmen’s Compensation Appeal Board (Vepco Construction Co.), 532 A.2d 374
(Pa. 1987).8 However, because Claimant was not out of work due to his work-related
injury and was not asked to return to work based upon a change in his medical
condition, Kachinski does not apply. A notice of ability to return to work is only
required if a claimant is off from work due to a work-related injury and the employer
is seeking to reduce the claimant’s WC benefits to partial because there has been a
change in the claimant’s medical condition.
School District of Philadelphia v.
Workers’ Compensation Appeal Board (Hilton), 84 A.3d 372, 377-78 (Pa. Cmwlth.),
appeal granted, 97 A.3d 738 (Pa. 2014). Here, Claimant was not off from work due
to his work-related injury and was already receiving partial WC benefits, and his loss
in earnings was not due to a change in his medical condition.
Id.
Therefore,
Employer did not need to procure a notice of ability to return to work before offering
Claimant the Hazleton position.
Rather, the requirements for a reinstatement of WC benefits as set forth
in Bufford v. Workers’ Compensation Appeal Board (North American Telecom), 2
A.3d 548 (Pa. 2010), apply. In Bufford, the Pennsylvania Supreme Court determined:
8
In Kachinski, the Pennsylvania Supreme Court set forth a four-pronged test to determine
whether an employer may modify a claimant’s WC benefits once that claimant is allegedly capable
of returning to some form of work. 532 A.2d at 380. The Kachinski test provides that an employer
must produce medical evidence of a change in condition and evidence of a referral to a then-open
job within the claimant’s restrictions. The claimant must then demonstrate that he has in good faith
followed through on the job referral. If the referrals fail to result in a job, the claimant’s WC
benefits should continue. Id.
6
A claimant seeking reinstatement of suspended
benefits must prove that his or her earning power is once
again adversely affected by his or her disability, and that
such disability is a continuation of that which arose from his
or her original claim. The claimant need not re-prove that
the disability resulted from a work-related injury during his
or her original employment. Once the claimant meets this
burden, the burden then shifts to the party opposing the
reinstatement petition. In order to prevail, the opposing
party must show that the claimant’s loss in earnings is not
caused by the disability arising from the work-related
injury. This burden may be met by showing that the
claimant’s loss of earnings is, in fact, caused by the
claimant’s bad faith rejection of available work within the
relevant required medical restrictions or by some
circumstance barring receipt of benefits that is specifically
described under provisions of the Act or in this Court’s
decisional law.
Id. at 558.
Initially, Claimant received total WC benefits until he returned to
restricted duty with a salary reduction, at which time his WC benefits were reduced.
Claimant continued to work restricted duty until Employer removed him from that
position on August 20, 2010. Pursuant to Folk v. Workers’ Compensation Appeal
Board (Dana Corporation), 802 A.2d 1277, 1279 (Pa. Cmwlth. 2002), when a
claimant has returned to work with restrictions and is subsequently laid off, the
claimant is entitled to a presumption that his loss of earning power is causally related
to the work injury. Therefore, through this presumption, Claimant met his burden of
proving that his earning power was once again adversely affected by his disability.
7
Once Claimant met his burden, the burden shifted to Employer to show
that Claimant’s loss in earnings was not caused by the disability. Bufford, 2 A.3d at
558. This burden is met by showing a claimant’s bad-faith rejection of available
work within his restrictions. Id.
Here, Employer presented credible evidence that, on December 1, 2010,
Employer offered Claimant a position within his restrictions at Employer’s Hazleton
office, which is a 35- to 40-minute drive from Claimant’s home. (N.T., 9/22/11, at
36.)
Claimant declined the position and, thereafter, secured a no-long-distance-
driving restriction from Dr. Grasso. (WCJ’s Findings of Fact, Nos. 7, 10.) Dr.
Grasso testified that he considered his restriction of “no long-distance driving” to
entail driving for approximately one hour straight.
(Id., No. 8.)
Further, Dr.
Spellman testified that Claimant was capable of traveling to Hazleton. (Id., No. 10.)
The WCJ found Claimant capable of performing the position and traveling to
Hazleton. (Id., Nos. 10-11.) The WCJ did not err in determining that the 35- to 40minute drive to Hazleton was not “long-distance” and was within Claimant’s
restrictions.
Employer presented credible evidence that Claimant was offered and
refused a position within his restrictions and, thus, acted in bad faith. General
Electric Company v. Workers’ Compensation Appeal Board (Myers), 849 A.2d 1166,
1176 (Pa. 2004) (“‘[W]here a claimant acts in bad faith in refusing suitable and
available work . . . the claimant’s benefits are reduced. . . .’”) (citation omitted). The
WCJ did not err in reducing Claimant’s WC benefits to partial on December 10,
2010.
8
Next, Claimant contends that the WCJ failed to issue a reasoned decision
because he did not analyze his credibility determinations or Employer’s job offer.
We disagree.
Section 422(a) of the Act, 77 P.S. §834, requires a WCJ’s decision to be
reasoned.
A reasoned decision is one that permits adequate appellate review;
however, the WCJ is not required to discuss all of the evidence presented. Gumm v.
Workers’ Compensation Appeal Board (J. Allan Steel Company), 942 A.2d 222, 228
(Pa. Cmwlth. 2008). “‘The WCJ is only required to make the findings necessary to
resolve the issues raised by the evidence and relevant to the decision.’” Id. (citation
omitted). “‘[T]he purpose of a reasoned decision is to spare the reviewing court from
having to imagine why the WCJ believed one witness over another.’” Id. (citation
omitted). A WCJ’s credibility determination will be upheld on appeal unless it was
arbitrary or capricious. Id. Further, the WCJ is not required to give a line-by-line
analysis of each witness statement. Id.
Here, the WCJ found Claimant and Dr. Grasso not credible and
Matweecha and Dr. Spellman credible.9 The WCJ set forth in his findings of fact the
testimony that he relied upon in making his credibility determinations.
Upon
reviewing those findings, this court does not have to imagine why the WCJ believed
9
The WCJ is the ultimate fact-finder in WC cases and “‘has exclusive province over
questions of credibility and evidentiary weight.’” A & J Builders, Inc. v. Workers’ Compensation
Appeal Board (Verdi), 78 A.3d 1233, 1238 (Pa. Cmwlth. 2013) (citation omitted). The WCJ may
accept or reject the testimony of any witness in whole or in part. Id.
9
one witness over another. The WCJ reasoned that the Hazleton position was offered
to Claimant and was within Claimant’s restrictions at the time it was offered. The
WCJ also noted that Dr. Grasso, who did not examine Claimant prior to adding the
no-long-distance driving restriction, only added the driving restriction after the
position had been offered and declined.10
Further, the WCJ found credible Dr.
Spellman’s opinion that driving to Hazleton would not be problematic for Claimant.
Thus, the WCJ determined that Claimant was offered a position within his work
restrictions and declined to take the offered position. The WCJ’s decision allows for
adequate appellate review and is, therefore, reasoned.
Next, Claimant contends that Employer presented an unreasonable
contest and attorney’s fees should be awarded. We disagree.
Pursuant to section 440(a) of the Act, as amended, added by Section 3 of
the Act of February 8, 1972, P.L. 25, 77 P.S. §996(a), a successful claimant is entitled
to attorney’s fees unless the employer establishes a reasonable contest. An employer
has the burden of proving a reasonable contest. Thissen v. Workmen’s Compensation
Appeal Board (Hall’s Motor Transit), 585 A.2d 612, 615 (Pa. Cmwlth. 1991). A
contest is considered reasonable where factual questions exist regarding the severity
of an injury or the duration of a claimant’s disability and where the claimant would
have needed an attorney to litigate a claim for additional injuries or WC benefits
regardless of the employer’s actions. Gumm, 942 A.2d at 231.
10
The WCJ found, based on the credible testimony, that long-distance driving is one hour
each way and that Claimant’s commute would be only 35- 45 minutes each way.
10
Here, Employer presented testimony and evidence that Claimant was not
restricted from working the Hazleton position. Further, Employer was ultimately
successful in limiting the period of Claimant’s total disability WC benefits.
Therefore, the WCJ did not err in determining that Employer presented a reasonable
contest and in declining to award unreasonable contest attorney’s fees.
Accordingly, we affirm.
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ROCHELLE S. FRIEDMAN, Senior Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
William Conyers,
Petitioner
v.
Workers’ Compensation Appeal
Board (PPL Corporation),
Respondent
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: No. 960 C.D. 2014
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ORDER
AND NOW, this 30th day of January, 2015, we hereby affirm the May
14, 2014, order of the Workers’ Compensation Appeal Board.
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge