IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Randi Bick, : Petitioner : : v. : : Workers' Compensation : Appeal Board (City of Pittsburgh), : No. 599 C.D Respondent : Submitted: July 26, 2013 BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McGINLEY FILED: September 18, 2013 Randi Bick (Claimant) challenges the order of the Workers Compensation Appeal Board (Board) that affirmed the Workers Compensation Judge s (WCJ) suspension of Claimant s workers compensation disability benefits. Claimant worked as a police officer for the City of Pittsburgh (Employer). On December 16, 2002, Claimant suffered a work-related injury when she slipped on ice and fell while responding to a call concerning a motor vehicle accident. Pursuant to a notice of compensation payable, Claimant received total disability compensation benefits of $ based on an average weekly wage of $ Her injury was identified in the notice of compensation payable as Lt Ankle/Lt Knee.... Left leg saphenous nerve neuritis status post trauma. Notice of Compensation Payable, September 15, 2003, at 1-2; Reproduced Record (R.R.) at 69a-70a. Claimant subsequently underwent left knee surgery. She received

2 Heart and Lung Act 1 benefits until August 27, She continued to have problems with her knee and underwent a second surgery in November Claimant obtained disability pension benefits in August Employer received an offset of its workers compensation payments. On May 14, 2010, Employer issued a Notice of Ability to Return to Work following Roger M. Componovo, M.D. s (Dr. Componovo) examination of Claimant. On June 15, 2010, Employer petitioned to suspend Claimant s benefits on the basis that she had voluntarily withdrawn from the workforce. At hearing before the WCJ, Employer presented the Notice of Ability to Return to Work form as well as the medical report of Dr. Componovo, an orthopedic surgeon. In his report, Dr. Componovo stated that he examined Claimant on May 3, 2010, took a history, and reviewed medical records. Dr. Componovo diagnosed Claimant with Left knee contusion, pain status post two knee surgeries. Report of Roger M. Componovo, M.D., May 3, 2010, (Dr. Componovo Report) at 4; R.R. at 82a. Dr. Componovo opined: Her work injury was a knee contusion with possible injury to the saphenous nerve. She did not get better from two surgeries. She is at Maximal Medical Improvement regarding the work part of her knee claim. Further treatment is not related to this claim. I would not recommend any further surgery. I do not believe that she can return to full duty. A Physical Capabilities was filled out. The restrictions basically have to do with the protective sensation and proprioception of the foot. If it 1 Act of June 28, 1935, P.L. 477, as amended, 53 P.S This Act is untitled, but is commonly referred to as the Heart and Lung Act. 2

3 is true that she cannot feel her foot or not properly position it in space, then restrictions that I have listed would apply. She would not be able to perform functions as a police officer in the field. She could not climb ladders. She would not be able to run. She would not be able to engage in pursuit. I do feel that she is very capable of many types of gainful employment including any kind of deskwork. I also feel that work as a security guard would most likely be okay. Driving an automatic car should not be an issue. I would place her at a medium workload type of capacity. I do not feel that any additional treatment or testing is necessary. Dr. Componovo Report at 5; R.R. at 83a. Claimant testified how she suffered her injury. She explained why she took a disability pension: I received a call from the union rep that said that the City had given him a list of names of police officers that had to be retired. I either had to retire with the next few days and maintain my It was a union contract. So if I didn t retire in the next few days, they were going to force me to retire some time in January which would have put me in a new contract and I would have lost financially in the medical benefit and a few other areas. So I kind of was forced to retire right then. Notes of Testimony, July 29, 2010, (N.T.) at 15; R.R. at 20a. described her activities: After Claimant received the Notice of Ability to Return to Work, she I have started asking anybody that I know in any position that s in a hiring capability. I have applied to Parkvale Bank, Pittsburgh Housing Finance Agency. I have spoken to people at Atapol, Hewlett Packard... Ace, Aldi. Aldi was one. I went to the store after I had heard they were hiring at this specific grocery store. I went 3

4 there and they said they weren t hiring but they assume it was going to be soon. I went back within the next two weeks. They said they still weren t hiring but there would be a hiring event to read in the paper. I believe the hiring event that I went to for Aldi s was June 10 th. So I started Aldi s fairly quickly after I got that. Now the IRS has a website. I have been on that. I checked the government jobs website regularly, the school district website regularly, the Post Gazette I check daily. They are not necessarily all jobs everyday but I do that daily. The Almanac is my local paper. I check that once a week. I asked Epstein Becker & Green. BW Communications, they also work directly with the James Communications. He was putting the word out to them. I checked the Allegheny County website regularly. I asked for Presley [sic] Ridge, RCAC [Republican Committee of Allegheny County], US Airways, Pittsburgh Pirates, Jet Blue, Delta, my township website, YCA [Young Chefs Academy]. I just learned about the Green Sheets. I got one there. I don t know how often they come out, but I did check that once, and ManorCare. N.T. at 20-21; R.R. at 25a-26a. Claimant applied on line for Parkvale Bank, Housing Finance Agency, Delta Airlines, and Aldi. She also applied in person for Aldi. When asked whether she considered herself to be withdrawn from the workforce, Claimant replied, Absolutely not. N.T. at 22-23; R.R. at 27a-28a. On cross-examination, Claimant stated that she began to look for work after she received the Notice of Ability to Return to Work. N.T. at 23-24; R.R. at 28a-29a. She admitted that she had not applied for jobs at Epstein, Becker & Green, BW Communications, James Communications, Allegheny County, RCAC, Us Airways, Jet Blue, Upper St. Clair Township, or the Young Chefs 4

5 Academy. N.T. at 30-33; R.R. at 35a-38a. At a subsequent hearing, Claimant confirmed that she had also applied for seven different jobs through Automatic Data Processing, Inc. (ADP). Notes of Testimony, January 18, 2011, at 11; R.R. at 60a. relevant finding of fact: The WCJ granted the suspension petition and made the following 12. Based upon a review of the foregoing, and a review of all of the evidence of record, considered in its entirety, this adjudicator finds as fact that the claimant has, indeed, as alleged by the employer, voluntarily withdrawn from the workforce. The claimant is deemed to have voluntarily withdrawn as of the May 14, 2010 service date of the Notice of Ability to Return to Work. In so finding, this adjudicator has undertaken an examination of the totality, that is, all of the circumstances, of the present case. In so finding, this adjudicator finds as fact that the claimant is, indeed, fit for work in the medium duty occupational category. This adjudicator notes that Dr. Camponovo s [sic] testimony is not challenged by the claimant. In so finding, this adjudicator has not found credible the claimant when she says that she has been pursuing in good-faith, and with intent to actually return to work, the various jobs she identified. On two occasions she carried herself in such fashion, and had such deportment, that all of her representations to this effect are not believed by the undersigned. Importantly, under cross-examination by Mr. Dodd, at the second hearing (especially), the claimant testified in such a manner, and had such carriage and deportment, that her representations are unbelievable. She was persuasively shown on crossexamination to be only undertaking a pro forma attempt. 5

6 She was very imprecise in her testimony, and her manner of testifying and her repetitive references to I don t remember, and the like, cause the undersigned to disbelieve the claimant when she represents she has not voluntarily withdrawn from the workforce and is actually looking for jobs with the intent to return to work. The testimony of the claimant is incredible. In finding the claimant incredible, the undersigned notes that the claimant did not represent that she ever looked for work from 2002 until Although she was not legally obliged to until tender of form LIBC-757, when considering all of the circumstances in their totality, as required by law, this factual reality causes the undersigned to disbelieve the claimant when she says she has not voluntarily withdraw and is pursuing work in good-faith with the actual intent to return to work. WCJ s Decision, March 19, 2011, (Decision), Finding of Fact No. 12 at 4-5. Claimant appealed to the Board which affirmed: After careful review, we conclude that the WCJ did not err in suspending Claimant s benefits. Defendant [Employer] bore the initial burden of proving by the totality of circumstances that Claimant has retired and voluntarily withdrawn from the workforce.... Claimant admitted that she took a disability pension and had received the NARW [Notice of Ability to Return to Work] and Dr. Camponovo s [sic] report. This evidence is sufficient to establish under the totality of circumstances that Claimant withdrew from the workforce, which meets Defendant s [Employer] burden.... The burden then shifted to Claimant to prove that she was seeking work in good faith or that her work injury forced her out of the entire workforce. However, the WCJ rejected Claimant s testimony regarding her purported efforts to find employment, and Claimant presented no credible evidence that her work injury prevented her from performing any work. In fact, the WCJ accepted Dr. Camponovo s [sic] opinion that Claimant could work medium duty with some 6

7 restrictions. As a result, claimant was unable to meet her burden, and the WCJ did not err in granting Defendant s [Employer] Suspension Petition. (Citations omitted). Board Opinion, March 12, 2013, at 3-4. Claimant contends that the Board applied an improper burden of proof where there was no evidence that Claimant voluntarily retired and that the WCJ capriciously disregarded competent evidence when he rejected Claimant s uncontradicted testimony and evidence. 2 Initially, Claimant contends that the Board erred as a matter of law and applied an improper burden of proof where there was no evidence that Claimant actually retired. In City of Pittsburgh v. Workers Compensation Appeal Board (Robinson), Pa., 67 A.3d 1194 (2013), our Pennsylvania Supreme Court articulated the standard employed when an employer seeks to suspend a claimant s benefits on the basis that the claimant has voluntarily withdrawn from the workforce: We will take this opportunity to make clear the analytical paradigm that applies in cases involving an employer s petition to suspend or modify benefits premised upon the claimant s alleged voluntary withdrawal from the workforce, as evidenced only by acceptance of a pension. Where the employer challenges the entitlement to continuing compensation on grounds that the claimant 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 has removed himself or herself from the general workforce by retiring, the employer has the burden of proving that the claimant has voluntarily left the workforce. There is no presumption of retirement arising from the fact that a claimant seeks or accepts a pension, much less a disability pension; rather, the worker s acceptance of a pension entitles the employer only to a permissive inference that the claimant has retired. Such an inference, if drawn, is not on its own sufficient evidence to establish that the worker has retired-the inference must be considered in the context of the totality of the circumstances. The factfinder must also evaluate all of the other relevant and credible evidence before concluding that the employer has carried its burden of proof. If the employer produces sufficient evidence to support a finding that the claimant has voluntarily left the workforce, then the burden shifts to the claimant to show that there in fact has been a compensable loss of earning power. Conversely, if the employer fails to present sufficient evidence to show that the claimant has retired, then the employer must proceed as in any other case involving a proposed modification or suspension of benefits. Our holding will not impose a prohibitive burden on employers, nor does it subject employers to the unreasonable task of proving the claimant s state of mind. Nor are we convinced that the dire consequences predicted by Employer that claimants will impermissibly benefit by supplementing their retirements with workers compensation benefits, and that the cost containment goal of the Act will be undermined will result. If an employer is convinced that a claimant has retired, the employer may present evidence to establish that status. As the Commonwealth Court suggested, the employer may do so by objective facts, including the claimant s receipt of a pension, the claimant s own statements relating to voluntary withdrawal from the workforce, and the claimant s efforts or non-efforts to seek employment. 8

9 Robinson, Pa., 67 A.3d at Claimant argues that the WCJ erred in his evaluation of the burden of proof because the totality of the circumstances failed to establish that Claimant was retired from the workforce. Claimant asserts that she was only forty years old at the time of the hearing. Further, she accepted a disability pension rather than a retirement pension. Also, there was no evidence presented that Claimant applied for or received Social Security Retirement benefits, refused a job offer, or admitted that she was not looking for work. According to Claimant, the only evidence presented to support Employer s contention that Claimant was no longer in the workforce was her acceptance of the disability pension. When the WCJ rendered his decision in this case, he did not have the benefit of our Supreme Court s clarification of the burden of proof in cases involving an employer s petition to suspend or modify benefits premised upon the claimant s alleged voluntary withdrawal from the workforce, as evidenced only by acceptance of a pension. Under the circumstances of the clarified burden of proof, this Court vacates the order of the Board and remands this case to the Board with instructions to remand to the WCJ for reconsideration of the record in light of the clarified burden of proof set forth in Robinson. 3 BERNARD L. McGINLEY, Judge 3 In light of this Court s decision to remand this case, this Court need not address Claimant s remaining issues. 9

10 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Randi Bick, : Petitioner : : v. : : Workers' Compensation : Appeal Board (City of Pittsburgh), : No. 599 C.D Respondent : O R D E R AND NOW, this 18th day of September, 2013, the order of the Workers Compensation Appeal Board in the above-captioned matter is vacated and this case is remanded to the Workers Compensation Appeal Board with instructions to remand to the Workers Compensation Judge for reconsideration of the record in light of the clarified burden of proof set forth in City of Pittsburgh v. Workers Compensation Appeal Board (Robinson), Pa., 67 A.3d 1194 (2013). BERNARD L. McGINLEY, Judge

11 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Randi Bick, : Petitioner : : v. : No. 599 C.D : Submitted: July 26, 2013 Workers' Compensation : Appeal Board (City of Pittsburgh), : Respondent : BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED CONCURRING OPINION BY JUDGE BROBSON FILED: September 18, 2013 I concur with the majority s decision to vacate and remand this matter for a new adjudication in light of the Pennsylvania Supreme Court s recent decision in City of Pittsburgh v. Workers Compensation Appeal Board (Robinson II), Pa., 67 A.3d 1194 (2013), particularly because I do not believe that the decision of the Workers Compensation Judge (WCJ) comports with that Supreme Court s guidance in that decision. It is important, post-robinson II, to keep in mind that this substantive area of law involves an exception to the general rule that an employer must show job availability in order to obtain a suspension of benefits based on a change in the claimant s medical condition. See City of Pittsburgh v. Workers Comp. Appeal Bd. (Robinson I), 4 A.3d 1130, 1134 (Pa. Cmwlth. 2010) (en banc), aff d, Pa., 67 A.3d 1194 (2013).

12 The Pennsylvania Worker s Compensation Act [(Act)] is remedial in nature and intended to benefit the worker, and, therefore, the Act must be liberally construed to effectuate its humanitarian objectives. Robinson II, Pa. at, 67 A.3d at 1202 (quoting Reifsnyder v. Workers Comp. Appeal Bd. (Dana Corp.), 584 Pa. 341, 348, 883 A.2d 537, (2005)). In light of the remedial nature of the Act, we must be careful not to apply the exception so broadly as to swallow the rule. To avail itself of the exception, at the time it files its petition to suspend benefits, the employer must have greater evidence of a decision by the claimant to withdraw from the labor market than the claimant s decision to take a disability pension. Robinson II, Pa. at, 67 A.3d at P. KEVIN BROBSON, Judge PKB-2