IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Annville Township, : Petitioner : : No. 716 C.D v. : : Submitted: August 31, 2012 Workers Compensation Appeal : Board (Hutchinson), : Respondent : BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH FILED: February 7, 2013 Annville Township (Employer) petitions for review of the March 21, 2012 order of the Workers Compensation Appeal Board (Board) which affirmed the decision of a Workers Compensation Judge (WCJ) denying its modification petition. We affirm. John Hutchinson (Claimant) worked for Employer s Public Works Department. Claimant suffered a work-related injury on June 29, 2006, when a tree fell on his left leg, resulting in a complex, closed, tibial plateau fracture and impending compartment syndrome. (Reproduced Record (R.R.) at 419a.) Employer accepted liability for the injury through a notice of compensation payable. Claimant receives total disability benefits in the amount of $ per week based on an average weekly wage of $

2 On January 22, 2009, Employer filed a modification petition alleging that work was generally available to Claimant as of December 24, 2008, based upon a labor market survey. See section 306(b) of the Workers Compensation Act (Act). 1, 2 In support of its petition, Employer offered the deposition testimony of David Goodspeed, M.D., a board-certified orthopedic surgeon. Dr. Goodspeed testified that Claimant suffered a complex, closed, tibial plateau fracture and impending compartment syndrome and has had multiple surgeries on his left leg, 1 Act of June 2, 1915, P.L. 736, added by the Act of June 24, 1996, P.L. 350, as amended, 77 P.S. 512(2). Section 306(b)(2) of the Act provides that 77 P.S. 512(2). Earning power shall be determined by the work the employe is capable of performing and shall be based upon expert opinion evidence Disability partial in character shall apply if the employe is able to perform his previous work or can, considering the employe's residual productive skill, education, age and work experience, engage in any other kind of substantial gainful employment which exists in the usual employment area in which the employe lives within this Commonwealth... If the employer has a specific job vacancy the employe is capable of performing, the employer shall offer such job to the employe. In order to accurately assess the earning power of the employe, the insurer may require the employe to submit to an interview by a vocational expert who is selected by the insurer and who meets the minimum qualifications established by the department through regulation... 2 Employer subsequently filed a second modification petition based upon a June 17, 2009 impairment rating evaluation (IRE) pursuant to section 306(a.2) of the Act, added by section 4 of the Act of June 24, 1996, P.L. 350, 77 P.S Section 306(a.2) of the Act allows an employer to obtain a unilateral modification of a claimant s benefit status from total to partial disability based upon an IRE impairment rating of less than fifty per cent under the most recent edition of the American Medical Association Guides to the Evaluation of Impairment. The WCJ consolidated the two petitions for hearings and ultimately granted Employer s request for modification based on the IRE, modifying Claimant s status to partial disability. Claimant does not appeal from this part of the WCJ s decision, which limits the duration of his weekly payments to 500 weeks but does not affect the amount of his weekly compensation. 2

3 including reconstructive surgery. Dr. Goodspeed stated that, as a result of the injury, Claimant suffers from constant pain, was referred to a pain management specialist, and relies on a cane to walk. Dr. Goodspeed stated that he was unable to determine Claimant s capabilities for work without a functional capacity examination. Employer also submitted the deposition testimony of David R. Cooper, M.D., a board-certified orthopedic surgeon who performed an independent medical evaluation (IME) of Claimant on September 8, Dr. Cooper testified that Claimant suffered a comminuted fracture of his left tibia. He stated that Claimant underwent multiple surgeries, the last being a reconstructive surgery on July 8, Dr. Cooper stated that during the IME, he noted that Claimant s left leg was abnormal and that Claimant had a limited range of motion and a diminished pulse. He also testified that Claimant s leg continues to swell and that Claimant suffers from extreme pain. Dr. Cooper stated that he did not expect Claimant s condition to improve much. Based on his September 8, 2008 examination, Dr. Cooper concluded that Claimant was permanently limited to sedentary work with limitations on the amount of walking, standing, and lifting he may do. Specifically, Dr. Cooper testified that Claimant cannot stand, drive, or walk for more than one to three hours in an eight hour work day; he cannot stand, walk or drive, or any combination thereof, for more than fifteen to thirty minutes at a time; he cannot squat, kneel, or crawl; and he is limited to lifting up to ten pounds, infrequently. (R.R. at 259a-60a; 285a-87a.) Employer also offered the testimony of vocational expert Mary Hess, who stated that she met with Claimant and was aware of his medical, education, and work histories. Hess testified that she conducted a labor market survey for Claimant that was based primarily upon the physical capabilities listed by Dr. Cooper. (See 3

4 R.R. at 334a-35a.) Hess began the survey in November 2008 and completed it in March In the survey, Hess identified eight positions which she believed were within Claimant s vocational and physical abilities. She then selected four of the positions for site visits. Those positions included customer service representative positions at Inter-Media Marketing and J.E. Ehrlich, a greeter at Wal-Mart, and a cashier at Kmart. Based upon her observations, her conversations with the employers, and the job standards for those positions provided in the Dictionary for Occupational Titles, Hess completed job analysis forms for the four jobs and sent them to Dr. Cooper and Dr. Goodspeed for approval. Both doctors approved all four positions for Claimant. 3 Claimant testified regarding his work injury and noted that he has had twelve surgeries on his left leg. Claimant said he presently takes Percocet, Lyrica, and Cymbalta for his work-related injuries. He noted that these medications cause dizziness, drowsiness, constipation, cold sweats, hot flashes and, on occasion, nausea. Claimant also stated that he has difficulty sleeping; he sleeps approximately two hours during the night and then naps during the day. (R.R. at 75a-79a.) Claimant, who did not finish high school, testified that he applied for seven of the eight jobs identified in Hess s labor market survey but did not receive any offers of employment. (R.R. at 86a-88a.) He tried to apply for all eight of the jobs, but one of the online applications, for a security guard position, automatically terminated when he stated that he could not walk or stand for long periods of time. 34a.) 3 However, Dr. Goodspeed did not recall approving Claimant for the jobs. (R.R. at 432a- 4

5 Although he applied for all of the jobs, Claimant stated that he did not think he could perform the job duties for any of the positions. Claimant also offered the deposition testimony of Maria Babinetz, a vocational rehabilitation expert. Babinetz testified that Claimant's lack of sleep would impact his ability to be employed on a sustained basis. She also testified that the effects of the medications Claimant was taking would impact his ability to work. In addition, Babinetz believed that Claimant did not have the customer service or typing skills necessary for the sedentary jobs Hess recommended. Babinetz visited Wal-Mart and inquired about the job duties of a greeter. Contrary to the information on Hess s job analysis form, Babinetz learned that a stool was not provided for this position. Babinetz also learned that greeters have to mop and lift items on occasion. Therefore, she opined that the Wal-Mart job would not be within Claimant s medical restrictions. Similarly, based upon her observations, Babinetz believed that Claimant could not perform the cashier position at Kmart because cashiers were required to stand during their shifts, which conflicted with Claimant s medical restrictions. Babinetz also believed that the side effects from Claimant s medications would prevent him from doing these jobs. Finally, Babinetz noted that Claimant was not vocationally qualified for the Inter-Media Marketing and J.C. Ehrlich jobs. Babinetz ultimately concluded that none of the positions identified by Hess were appropriate for Claimant. The WCJ issued a decision on February 23, 2010, denying Employer s petition to further modify Claimant s benefits based upon the labor market survey. The WCJ found Hess s testimony that Claimant could have performed the jobs identified in the labor market survey credible, but he also credited Claimant s testimony that he could not perform the requisite job duties of any of the positions 5

6 because of his sleep problems and the effects of his medications. The WCJ also found that Babinetz had a better understanding of Claimant's history and accepted as credible her testimony that Claimant could not perform any of the jobs. (WCJ Decision 1, at 9-10.) The WCJ acknowledged that the medical experts approved the positions for Claimant; however, the WCJ concluded that the credible testimony offered by Claimant and Babinetz was sufficient to establish that Claimant lacks earning capacity given his restrictions, education, and vocational experience." (WCJ Decision 1, Conclusions of Law Nos. 1 & 3.) Employer appealed to the Board arguing that the WCJ s conclusions of law regarding Claimant s ability to perform the selected jobs were inconsistent. Specifically, Employer noted that the WCJ accepted Hess s testimony that Claimant was academically qualified for the positions yet concluded that Claimant lacks earning capacity given his medical restrictions, education, and vocational experience. Employer also argued that Babinetz s testimony was improper and based upon hearsay. The Board determined that the WCJ did not err in concluding that Claimant could not perform the jobs listed on the labor market survey, since the WCJ credited Claimant s testimony concerning his sleep issues and the effect of his medications as well as Babinetz s testimony that Employer s job analysis reports for the positions at Wal-Mart and Kmart did not accurately describe the job duties required for those positions and that Claimant did not possess the educational or vocational skills needed for those jobs. The Board also concluded that the WCJ did not err in crediting Babinetz s testimony because it was based upon the usual and ordinary information upon which vocational experts normally rely. The Board 6

7 remanded the matter to the WCJ for the sole purpose of clarifying the inconsistencies in his decision. The WCJ issued a new decision on February 7, 2011, which reaffirmed and modified his February 23, 2010 decision. The WCJ concluded that: (1) the security jobs identified in the labor market survey were not within Claimant's capabilities, both vocationally and physically; and (2) the credible testimony of Claimant and Babinetz established that Claimant was unable to perform the other jobs listed in the survey. The WCJ revoked his prior Conclusion of Law Number 3 as inconsistent with his decision. (WCJ Decision of 02/07/2011, (WCJ Decision 2) Conclusions of Law 1-3.) Employer again appealed to the Board, raising the same issues and arguments it raised on appeal from the WCJ s 2010 decision. The Board concluded that its prior determination resolved these issues and that the WCJ s revised conclusions of law were proper. Accordingly, the Board affirmed the WCJ s decision. On appeal to this Court, 4 Employer argues that, as it pertains to the Wal- Mart and Kmart jobs, Claimant failed to rebut the testimony of Hess that he could perform the requisite job duties. 5 Relying on World Kitchen, Inc. v. Workers Compensation Appeal Board (Rideout), 981 A.2d 342 (Pa. Cmwlth. 2009), Employer asserts that the WCJ erred in relying on Claimant s self-serving testimony regarding his inability to work. Employer also contends that the WCJ erred in relying on 4 Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S Employer concedes that Claimant is not qualified for the two security positions identified by Hess as available. 7

8 Babinetz s testimony, characterizing it as unqualified medical testimony, not vocational expert testimony. Section 306(b)(2) of the Act allows an employer to obtain a modification of a claimant's benefits by establishing the claimant s earning power through expert testimony. 77 P.S. 512(2); Phoenixville Hospital v. Workers Compensation Appeal Board (Shoap), 2 A.3d 689 (Pa. Cmwlth. 2010). A claimant s earning power is determined by: (1) the work an employee is capable of performing, considering his skill, education, age, and work experience; and (2) expert opinion including listings of available jobs. Id. The assessment of a claimant s earning power is a question of fact for the WCJ. Marx v. Workers Compensation Appeal Board (United Parcel Service), 990 A.2d 107 (Pa. Cmwlth. 2010). We first conclude that our decision in World Kitchen is not controlling. In World Kitchen, the employer filed a modification petition based upon a specific job it offered to the claimant. At the time, the employer was paying the claimant partial disability benefits based upon her actual earnings week by week. The claimant s doctor had released her to perform sedentary work forty hours per week, and the employer offered unrebutted medical testimony showing that the work it offered the claimant fell within the restrictions required by her work injury. The claimant acknowledged that she had been released to return to work and stated that she tried to do so. However, the claimant testified that the work was causing her pain which rendered her unable to work forty hours per week. In relevant part, the WCJ concluded that the light duty work offered to the claimant was within her medical restrictions but indicated that there was no indemnity at issue in the case. Thus, the WCJ ordered that the claimant s compensation should remain modified or suspended based upon her actual weekly 8

9 earnings. The Board concluded that the WCJ had denied the modification petition and affirmed. On further appeal, this Court reversed. We concluded that the WCJ had granted the modification by finding that the work offered to the claimant was within her medical restrictions. We further noted that once the employer had satisfied its burden of proof, the claimant s subjective belief about her work abilities was insufficient to rebut the employer s evidence. World Kitchen, 981 A.2d at 347. World Kitchen is distinguishable from the present case in significant respects. Unlike the claimant in World Kitchen, Claimant is not challenging his medical restrictions, but, rather, is challenging the appropriateness of the jobs identified in Employer s labor market survey as inconsistent with those restrictions. In addition, in doing so, Claimant did not rely solely upon his own testimony but also offered the testimony of Babinetz, a vocational expert. Employer further contends that Babinetz s testimony concerning the positions at Wal-Mart and Kmart was not proper vocational expert testimony, but was in fact improper medical testimony since both Dr. Cooper and Dr. Goodspeed approved the jobs. However, as previously indicated, Babinetz testified that Employer s job analysis reports for the positions at Wal-Mart and Kmart did not accurately describe the job duties required for those positions and that Claimant did not possess the educational or vocational skills needed for those jobs. In support of her conclusions, Babinetz stated that she reviewed Claimant s medical restrictions, as provided by Dr. Cooper, along with Hess s job analyses. She also personally observed the jobs at Wal-Mart and Kmart and spoke with each employer s representatives and employees regarding the duties of each position. Based on her observations, Babinetz determined that the requirements and duties of the Wal-Mart and Kmart job set forth in Hess s job analyses were inaccurate; for this reason she 9

10 concluded that the Wal-Mart and Kmart jobs were not within Claimant s medical restrictions. 6 (R.R. 149a-57a.) In determining whether a job is appropriate for a claimant, a vocational expert looks not only at a claimant s educational and work history, but also the claimant s medical restrictions. That is exactly what Babinetz did here. Contrary to Employer s characterization of her testimony, Babinetz did not make her own medical diagnosis, nor did she offer medical opinion testimony. Instead, she noted the work restrictions placed on Claimant by Dr. Cooper, personally observed the requirements of the positions identified by Hess, and determined that the jobs identified in the labor market survey did not fall within Claimant s medical restrictions. The WCJ found Babinetz more credible than Hess in this regard. 7 Moreover, because Dr. Cooper and Dr. Goodspeed relied on Hess s reports, the fact that they approved the jobs as being within Claimant s medical restrictions is insufficient to satisfy Employer s burden of proof. Accordingly, we affirm. PATRICIA A. McCULLOUGH, Judge 6 All of the information relied upon by Babinetz was of the type normally relied upon by vocational experts. In fact, Hess relied upon the same information when identifying jobs that she believed would be appropriate for Claimant. 7 A WCJ is free to credit the testimony of any witness, in whole or in part, and those credibility determinations are not reviewable by this Court. Phoenixville Hospital. 10

11 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Annville Township, : Petitioner : : No. 716 C.D v. : : Workers Compensation Appeal : Board (Hutchinson), : Respondent : ORDER AND NOW, this 7 th day of February, 2013, the order of the Workers Compensation Appeal Board, dated March 21, 2012, is affirmed. PATRICIA A. McCULLOUGH, Judge