IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Maria Barragan, : Petitioner : : v. : : Workers' Compensation : Appeal Board : (U.S. Airways Group, Inc./Piedmont), : No C.D Respondents : Submitted: April 25, 2014 BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McGINLEY FILED: June 12, 2014 Maria Barragan (Claimant) petitions for review from the order of the Workers Compensation Appeal Board (Board) which affirmed the Workers Compensation Judge s (WCJ) grant of U.S. Airways Group, Inc. s (Employer) Modification Petition. Claimant worked for Employer for more than ten years in various customer service positions. On June 10, 2005, while working as a Customer Service Agent, Claimant injured herself while moving luggage from a jetway. She immediately felt a severe pain in her back, which extended into her left side and left buttock. In a decision dated December 21, 2006, WCJ Joseph Stokes awarded temporary total disability (TTD) benefits in the amount of $ per week based on an average weekly wage of $

2 On May 22, 2006, Employer presented Claimant with a Notice of Ability to Return to Work, based on the opinion of Norman B. Stempler, D.O. (Dr. Stempler), an orthopedic surgeon, that Claimant was capable of sedentary work, lifting no more than ten pounds. On August 7, 2006, Claimant returned to work as a Customer Service Agent, and her benefits were suspended thereafter, based on her light duty earnings. However, on September 22, 2008, Employer eliminated the light duty position, and Claimant was laid off. On November 5, 2008, WCJ Stokes issued an Order retroactively reinstating TTD benefits because Claimant s modified duty job was eliminated by Employer. A second Notice of Ability to Return to work was executed by Employer on May 4, 2009, following the opinion of Charles D. Hummer, Jr., M.D. (Dr. Hummer), a board-certified orthopedic surgeon, that Claimant could perform modified duty work, which was generally available. Employer filed a Modification Petition on September 10, 2010, which was assigned to WCJ Andrea McCormick. Employer presented the deposition testimony of Dr. Hummer. Dr. Hummer conducted an Independent Medical Examination (IME) of Claimant on April 15, Deposition of Charles D. Hummer Jr., M.D., November 29, 2010, (Dr. Hummer Deposition) at 10. Dr. Hummer testified that Claimant had lumbar disc disease and radiculopathy, but that she was capable of performing light duty work. Dr. Hummer Deposition at Dr. Hummer again examined Claimant 2

3 on April 12, Dr. Hummer testified that her condition remained the same, as did his opinion of her work abilities. Dr. Hummer Deposition at He believed Claimant was capable of lifting up to fifteen or twenty pounds, but should refrain from twisting, bending, crawling, or climbing ladders on the job. Dr. Hummer Deposition at 19. Dr. Hummer opined that long-term physical therapy was the only treatment that would benefit Claimant. Dr. Hummer Deposition at 21. Employer also presented the deposition testimony of Christopher Terranova, M.S., CRC (Terranova), a counselor at Compass Rehabilitation Services. Terranova, a certified rehabilitation counselor, interviewed Claimant on February 24, 2010 and performed an earning power assessment based on the report from Dr. Hummer. Claimant advised Terranova that she had stopped work in 2008 because her light duty position was eliminated. Claimant also made note of the fact that she was able to drive and did not require the use of assistive devices. Deposition of Christopher Terranova, February 17, 2011, (Terranova Deposition) at Terranova confirmed that there was not a position available with Employer that was within Claimant s physical restrictions. Terranova Deposition at 22. He then completed a labor market survey evaluation based on the area near the Philadelphia International Airport. Terranova Deposition at 11. Terranova located ten available full-time positions that met the guidelines of Dr. Hummer, with wages averaging $400 a week. 1 Terranova Deposition at Mr. 1 These ten positions were: Counter Sales Representative at Hertz Rent-A-Car; Service Express Agent at The Westin Philadelphia; Parking Cashier at Pacifico Airport Valet Services; Room Service/Order Taker at Double Tree Hotel-Philadelphia; Front Desk Agent at Conshohocken Marriott-Residence Inn; Customer Service Representative at Stiver s Staffing (Footnote continued on next page ) 3

4 Terranova personally viewed three of these positions, generated job descriptions, and presented his findings to Dr. Hummer, who approved the positions for Claimant. Terranova Deposition at Mr. Terranova believed the Claimant could successfully perform these jobs because they met the restrictions set by Dr. Hummer and were located in the same vicinity as Employer. Terranova Deposition at Claimant presented the deposition testimony of Dr. Stempler, Claimant s treating physician since December 12, Dr. Stempler testified that Claimant has chronic, relentless, and refractory pain and may be a candidate for surgery. Deposition of Norman B. Stempler, D.O., February 1, 2011, (Dr. Stempler Deposition) at 16. Dr. Stempler stated that there was evidence that [Claimant] did have significant sciatic tension on the left at 30 degrees. And [he] felt that she sustained a traumatic herniation with lumbar radiculopathy on the left. Dr. Stempler Deposition at 11. Claimant returned to work several times while under the supervision of Dr. Stempler, but was unable to remain at work because her condition deteriorated. Dr. Stempler Deposition at Dr. Stempler disagreed with Dr. Hummer s opinion that Claimant was capable of performing any of the positions listed in the labor market survey because of her continued pain and the side effects from prescription medication. Dr. Stempler Deposition at 29. He stated that even a minimal light-duty is something she just (continued ) Services; Cashier/Dispatcher at Smart Park; PBX Operator at Radisson Hotel-Valley Forge; Telephone Operator at Albert Einstein Healthcare Network; and Customer Service Representative at Reimbursement Technologies Inc. 4

5 can t tolerate. [Claimant] can t tolerate anything prolonged, whether it be sitting or standing and so forth. Dr. Stempler Deposition at 19. Dr. Stempler also testified that Claimant was unable to drive more than ten or fifteen minutes at a time, therefore making the positions located near the Philadelphia International Airport even more difficult for Claimant to perform. Dr. Stempler Deposition at Claimant testified that she did not believe she was capable of performing the positions recommended by Terranova because she was still taking a lot of medication and was uncomfortable commuting an hour away from home. Notes of Testimony, April 14, 2011, (N.T.) at Claimant noted that the only reason she was able to temporarily return to work for Employer in 2008 was because her husband drove her, as he also works for Employer. N.T. at 18. The WCJ granted the Modification Petition and reduced Claimant s weekly compensation to $ on and after April 12, 2010, based on Claimant having an earning power assessment of $ per week. The WCJ made the following Findings of Fact: 10. This Judge has considered the testimony of vocational witness Mr. Terranova in reference of the labor market survey conducted. Mr. Terranova chose to concentrate his efforts on jobs located at the Philadelphia International Airport because that is where Claimant s pre-injury position was located. Claimant, in fact, resided in Newark, Delaware (a 45 min. commute approximately) prior to the work injury and continued to commute for months back and forth to Employer at Philadelphia International Airport following her work 5

6 injury until the job was no longer available. This Judge does not find Claimant any less capable in commuting to and from the located jobs merely because she would have to drive herself as this Judge does not find there to be a difference between Claimant s ability to ride in the car and her ability to drive herself. She has admitted her ability to drive but would have this Court believe that she lays [sic] in the backseat while her husband drives her to Philadelphia for her medical appointments, and this Judge rejects that portion of her testimony as not credible. 11. Claimant would now have this court believe that she is physically incapable of riding in a car for approximately forty-five minutes to Philadelphia and back and that this is a hardship for her when she commutes to see Dr. Stempler, whose office is in Philadelphia. Claimant is not found credible by this Judge. Claimant s testimony that she attempted to contact the prospective Employers identified in the survey is irrelevant since she has no duty to do so. This Judge finds Claimant capable of gainful employment and as such, rejects her testimony as not credible. 12. Where Claimant testified that there has been no change in her physical condition related to the work injury since she last worked light duty for Employer in 2008, Claimant appears to be capable of working in a sedentary position, despite Dr. Stempler s opinions. 13. The jobs identified in the labor market survey by Mr. Terranova are within Claimant s retained physical capabilities. 14. Dr. Hummer s opinions that Claimant is capable of performing the identified job positions are found credible. Dr. Hummer reached his conclusions in consideration of several examinations of Claimant, her ongoing limitations related to the work injury and the objective test studies. Dr. Hummer s restrictions on 6

7 Claimant are reasonable and his opinion that she is capable of sedentary work, credible, in light of her test studies and ongoing complaints. 15. This Judge rejects Dr. Stempler s opinion that Claimant is not capable of commuting back and forth to the jobs and/or that the jobs are not suitable for Claimant. Dr. Stempler s credibility was in question when he admitted that he was not aware that the reason Claimant stopped working for Employer in September 2008 was because her job was eliminated. This undermined his testimony that she was physically unable to continue to work and that she chose to stop working due to pain, rebutted by Claimant herself during her sworn testimony before this Judge. WCJ s Decision, October 11, 2011, Finding of Fact (F.F.) No at 4-5. Claimant appealed to the Board which affirmed. Claimant contends 2 that the Board erred when it affirmed the WCJ s determination that the jobs identified in the labor market survey were truly open and available to Claimant. Claimant also contends that the Board erred when it affirmed the portion of the WCJ s decision which found Claimant to be capable of tolerating the commute to and from work, given her ongoing restrictions from the work injury. Lastly, Claimant contends that the Board erred when it determined that the WCJ s decision was supported by the competent evidence of record and that the WCJ adequately explained her findings. 2 This Court s review is limited to a determination of whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence, or whether constitutional rights were violated. Vinglinsky v. Workmen s Compensation Appeal Board (Penn Installation), 589 A.2d 291 (Pa. Cmwlth. 1991). 7

8 I. WHETHER THE BOARD ERRED AS A MATTER OF LAW BY AFFIRMING THE WCJ S DETERMINATION THAT THE JOBS IDENTIFIED IN THE LABOR MARKET SURVEY WERE TRULY OPEN AND AVAILABLE TO CLAIMANT. Claimant contends that the jobs described by Mr. Terranova in the labor market survey were neither open nor available to her due to her disability. According to Section 306(b) of the Workers Compensation Act (Act), 3 77 P.S. 512, partial disability compensation benefits are based on the difference between Claimant s pre-injury wage and her earning power. Earning power shall be determined by the work the employe is capable of performing and shall be based upon expert opinion evidence which includes job listings with agencies of the department, private job placement agencies and advertisements in the usual employment area. 77 P.S. 512(2). Claimant argues that Terranova never explained the positions listed in the labor market survey with her, nor did he follow up to see if she applied. However, Section 306(b) of the Act only requires that Claimant receive notice of existing positions, which was accomplished through the labor market survey results. Phoenixville Hosp. v. Workers' Comp. Appeal Bd. (Shoap), 81 A.3d 830, 844 (Pa. 2013). For the positions to exist, they must be available at the time of the labor market survey and also remain open for the claimant to apply within a reasonable amount of time. Id. Based on the credited testimony of Terranova, the 3 Act of June 2, 1915, P.L. 736, as amended. 8

9 WCJ determined that the jobs were open and available at the time of the vocational assessment. F.F. No. 5(c) at 2. It is not required that Claimant secure employment, unless Employer has an open employment opportunity for which Claimant is qualified. Employer simply must determine Claimant s earning power and provide a list of jobs related to earning power and physical capabilities. Phoenixville, 81 A.3d at 845. The mere existence of relevant positions is evidence of more opportunities to come. Id. at 843. Claimant argues that the expert opinion of Dr. Hummer was flawed because he failed to take into account her continued symptoms, reported limitations, and current medications. Claimant believes Dr. Stempler s testimony should be considered as evidence that no position on the labor market survey was available to her because of her physical limitations. However, the WCJ did not credit Dr. Stempler s testimony. In workers compensation cases, the WCJ is the ultimate finder of fact, has exclusive province over questions of credibility and evidentiary weight, and is free to accept or reject the testimony of any witness, in whole or in part. General Electric Co. v. Workmen s Compensation Appeal Board (Valsamaki), 593 A.2d 921 (Pa. Cmwlth.), petition for allowance of appeal denied, 600 A.2d 541 (Pa. 1991). This Court will not disturb a WCJ s findings when those findings are supported by substantial evidence. Nevin Trucking v. Workmen s Compensation Appeal Board (Murdock), 667 A.2d 262 (Pa. Cmwlth 1995). This Court will not reweigh a credibility determination. 9

10 II. WHETHER THE BOARD ERRED AS A MATTER OF LAW BY AFFIRMING THE WCJ S DECISION THAT CLAIMANT WAS CAPABLE OF TOLERATING THE COMMUTE TO AND FROM HOME TO WORK NEAR THE PHILADELPHIA INTERNATIONAL AIRPORT. Under Section 306(b) of the Act, a labor market survey may take place for claimants that reside both in state and out of state. Section 306(b) provides that a claimant is partially disabled if the employe is able to perform gainful employment which exists in the usual employment area in which the employe lives within this Commonwealth. If the employe does not live in this Commonwealth, then the usual employment area where the injury occurred shall apply. 77 P.S. 512(2). Terranova conducted the labor market survey in the Philadelphia area, rather than the Claimant s hometown in Delaware, because when a Claimant resides outside of the state of Pennsylvania the labor market survey and earning power assessment takes [sp] place where the injury occurred --- in the geographic area where the injury occurred. Terranova Deposition at 34. Claimant argued in her testimony that she was not capable of driving long distances by herself. The WCJ, in the Findings of Fact, did not credit Claimant s testimony because she admitted that she did drive and was able to ride in a car for a long period of time. The Findings of Fact are determinations that are not reviewable by this Court. Campbell v. Workers Compensation Appeal Board (Pittsburgh Post-Gazette), 954 A.2d 726, 731 (Pa. Cmwlth. 2008). 10

11 III. WHETHER THE BOARD ERRED AS A MATTER OF LAW IN DETERMINING THAT THE WCJ S DECISION WAS SUPPORTED BY THE COMPETENT EVIDENCE OF RECORD AND THAT THE WCJ ADEQUATELY EXPLAINED HER FINDINGS. The WCJ determined that Terranova and Dr. Hummer s testimonies were credible, and she relied on this evidence to support her decision. The only evidence to the contrary came from Dr. Stempler s deposition, who the WCJ found not credible. When a finding is based on the credible testimony, this Court may not disturb the WCJ s findings. Nevin, 667 A.2d at 267. The WCJ adequately explained her findings in the Findings of Fact. All testimony was thoroughly discussed. The Board was correct in its determination that the WCJ adequately explained her findings. Accordingly, this Court affirms. BERNARD L. McGINLEY, Judge 11

12 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Maria Barragan, : Petitioner : : v. : : Workers' Compensation : Appeal Board : (U.S. Airways Group, Inc./Piedmont), : No C.D Respondents : O R D E R AND NOW, this 12 th day of June, 2014, the order of the Workers Compensation Appeal Board in the above-captioned matter is affirmed. BERNARD L. McGINLEY, Judge