IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Audelia Medina, : Petitioner : : v. : No C.D : SUBMITTED: August 28, 2009 Workers Compensation Appeal : Board (Giorgi Mushrooms), : Respondent : BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE JAMES R. KELLEY, Senior Judge HONORABLE KEITH B. QUIGLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE LEADBETTER FILED: November 5, 2009 Claimant, Audelia Medina, petitions for review of the April 24, 2009 order of the Workers Compensation Appeal Board (Board) that affirmed the decision of Workers Compensation Judge (WCJ) Brian Puhala to deny her petition for reinstatement of workers compensation benefits. We affirm. In pertinent part, the WCJ found as follows. In December 2001, Claimant sustained a work-related low back strain/sprain, while picking up ten pounds of mushrooms. Pursuant to a notice of compensation payable, Employer Giorgi Mushrooms paid her weekly compensation of $322 based on her average weekly wage of $ Subsequently, the parties entered into a supplemental

2 agreement suspending Claimant s benefits effective February 1, 2002, based on her return to light-duty work with no loss in wages on that day. In a January 2004 decision, WCJ Wayne L. Dietrich granted Claimant s first reinstatement petition for the closed period from March 13, 2003 to June 3, Thereafter, her benefits were suspended effective June 4, 2003 when she resumed modified-duty work and limited harvesting. In a January 2005 decision, WCJ Dietrich ruled on numerous petitions. He denied Employer s petition to terminate Claimant s benefits as of October 22, 2003, concluding that she had not fully recovered from her work injury. In addition, he granted Claimant's review petition, thereby expanding the work injury set forth in the notice of compensation payable to include a disc herniation at L4-5 with right L5 sciatic neuropathy. Following an independent medical examination and a biomedical evaluation, Employer suggested to Claimant in late December 2006 that she engage in a work-hardening program and be transitioned from modified duty to regular duty as a harvester. In her then modified-duty capacity, she was working with restrictions limiting her to picking only from the middle level height of mushrooms. Additionally, the WCJ found: Claimant was the least productive harvester in the company averaging 30 pounds per hour. Each harvester is required to pick a minimum of 60 pounds per hour, and many pick over 100 pounds per hour. Finding of Fact No. 10(b). Claimant agreed to work with a physical therapist and acknowledged a fifty-pound per hour minimum. As of January 2007, Claimant s production had not increased and the physical therapist s reports were not favorable. Specifically, the WCJ found credible the therapist s testimony that Claimant performed her exercises slowly, 2

3 refused to perform some exercises and increasingly became less open and willing to cooperate. In fact, the therapist on one occasion observed Claimant walk toward the clinic at a brisk pace, but change her posture, pace and gait markedly upon entering the building. Moreover, the WCJ also found credible the testimony of Claimant s group leader, Leonore Almanzar, that Claimant was slow in her harvesting duties, arrived to work late and either talked to coworkers or to others on her cell phone instead of working. The group leader also stated that there were always plenty of mushrooms at the middle level for Claimant to satisfy the minimum requirement. Employer on January 29, 2007 terminated Claimant s employment for poor performance and lack of cooperation in the efforts to transition her back to full duty. Finding of Fact No. 10(d). In February 2007, Claimant filed the petition, seeking a reinstatement of her benefits effective January 30, 2007, 1 and alleging that her work injury was causing decreased earning power. Employer denied Claimant s allegations and the matter was litigated before WCJ Puhala, who denied Claimant s petition. He concluded that she failed to demonstrate that, through no fault of her own, her earning power was again negatively impacted by the work injury which gave rise to her original claim. He determined as follows: Claimant was discharged from work for [Employer] through her own fault. Specifically, the evidence shows [Employer] fired Claimant for attitude, conduct, substandard work, work rule violation, and insubordination. Part of the reason given for Claimant s discharge was her demeanor at work including talking 1 The reinstatement petition reflects a date of January 30, 2006, which is a typo. February 28, 2007 Reinstatement Petition at 2; R.R. 18a. 3

4 both to her co-workers and on the phone as well as tardiness. While one can argue Claimant could not meet the production quota due to her injury, and she was fired for lack of production, this [WCJ] concludes Claimant s production was not the only reason for her discharge. Conclusion of Law No. 3. The Board affirmed, concluding that the credible evidence of record established that Claimant s conduct was sufficient to merit forfeiture of a reinstatement of benefits. 2 Claimant s timely appeal to this Court followed. As an initial matter, we note that in seeking to reinstate benefits after a suspension, a claimant has to demonstrate that the injury which gave rise to her original claim continues and that, through no fault of her own, his or her earning power is again negatively impacted by her injury. Virgo v. Workers Comp. Appeal Bd. (County of Lehigh-Cedarbrook), 890 A.2d 13 (Pa. Cmwlth. 2005) [citing Pieper v. Ametek-Thermox Instr. Div., 526 Pa. 25, 584 A.2d 301 (1990)]. An employer can rebut the claimant s proof of loss of earning power by demonstrating that suitable work was available or would have been available but for circumstances which merit allocation of the consequences of the discharge to the claimant, such as the claimant s lack of good faith. Cryder v. Workers Comp. Appeal Bd. (Nat l City), 828 A.2d 1155, (Pa. Cmwlth. 2003) [quoting Stevens v. Workers Comp. Appeal Bd. (Consolidation Coal Co.), 563 Pa. 297, 310, 760 A.2d 369, 377 (2000)]. Accord Virgo. In addition, [b]ad faith is not established when an employee attempts to perform her job duties but is unable 2 In affirming, the Board noted that Employer s medical expert, board-certified orthopedic surgeon Robert F. Draper, Jr., M.D., credibly testified that if Claimant had not been terminated from her employment, she would have been able to continue to perform the harvester position. Board s Decision at 9. We point out, however, as did Claimant, that the WCJ, without reservation, rejected Dr. Draper s testimony and opinions as not credible. Accordingly, we have disregarded any of the Board s decision and reasoning based on the testimony of Dr. Draper. 4

5 to satisfactorily perform them due to her work-related injury. Shop Vac Corp. v. Workers Comp. Appeal Bd. (Thomas), 929 A.2d 1236, 1240 (Pa. Cmwlth. 2007) (citing Stevens). In the present case, the WCJ accepted as credible and without qualification the testimony of Claimant s medical expert Maxwell Stepanuk, D.O., a board-certified orthopedic surgeon. Dr. Stepanuk first saw Claimant in May 2002 for complaints of cervical and lumbar pain radiating down her right leg. He also saw her in June 2002, April 2003, September 2005, February and March 2006 and February He testified that, from May 2002 to July 2007, her complaints and physical examinations essentially remained the same. Dr. Stepanuk Deposition at 37; R.R. 187a. In addition, Dr. Stepanuk rejected the June 2007 recommendation of Employer s medical expert, Robert F. Draper, Jr., M.D., that Claimant could do medium to heavy lifting in the range of fifty-one to seventy pounds within an eight-hour day. To the contrary, Dr. Stepanuk testified that he would maintain a lifting restriction in the range of ten to twenty pounds. Additionally, although Dr. Stepanuk understood that, post-injury, Claimant had worked in a modified-duty capacity pursuant to a twenty-pound lifting restriction imposed by Richard A. Close, M.D., Dr. Stepanuk ultimately concluded that Claimant was unable to perform her regular duties as a mushroom picker on all levels, including the middle one. Finding of Fact No. 8(c). Dr. Stepanuk did indicate, however, that as of his February 16, 2007 evaluation of Claimant, she was still capable of performing work under the limitations that he outlined in a June 14, 2002 work restriction note. These restrictions included no lifting over ten pounds, no repetitive sitting, standing, twisting or bending and no picking mushrooms. Dr. Stepanuk Deposition at 18; R.R. 168a. The WCJ did not 5

6 address Dr. Stepanuk s specific restrictions in the decision, but instead found in general and without reference to Dr. Stepanuk that Claimant s post-injury restrictions did not limit her to any particular level or production amount. Her restrictions only limited [her] to a 20-pound lifting limit. Finding of Fact No. 22. Further, [a]t the time [Employer] offered Claimant the work-hardening program... [,] Claimant was not restricted in any other fashion. Finding of Fact No. 24. Given the fact that Claimant returned to work with restrictions and there is credible medical testimony regarding her continuing physical limitations as applied to both regular duty and the restricted middle-level mushroom picking in which she was engaged, we conclude that Claimant demonstrated that the injury giving rise to her original claim continues. We now turn to the pertinent question of whether Claimant met her burden of showing that, through no fault of her own, her earning power is again negatively impacted by her injury. The credible evidence reflects that Claimant s earning power is again negatively impacted by her injury at least, in part, through her own fault. Claimant admitted to violating Employer s rules by bringing food into the work place and using her cell phone. Further, the WCJ accepted as credible the testimony of Claimant s group leader that she was tardy and talked to others instead of working. Because the primary behavior for which the WCJ found Employer terminated Claimant s employment was unrelated to her physical limitations from the original work injury, we conclude that the record establishes a circumstance which merits allocation of the consequences of the discharge primarily to Claimant. See Virgo (holding that loss of earnings was due to fault of claimant where evidence demonstrated that claimant was discharged after receiving two bad performance evaluations, which documented that claimant failed to follow supervisor s 6

7 instructions, was absent excessively or tardy, failed to accurately document her start time as requested and exhibited poor work quantity, cooperation with others and initiative); St. Luke s Hosp. v. Workers Comp. Appeal Bd. (Ingle), 823 A.2d 277 (Pa. Cmwlth. 2003) (holding that loss of earning due to fault of claimant where she was fired after being charged with non-work-related child abuse). To reiterate, the WCJ concluded that although one [could] argue Claimant could not meet the production quota due to her injury and at least one of Employer s reasons for discharging her was lack of production, Claimant s production was not the only reason for her discharge. Conclusion of Law No. 3. Employer fired Claimant for attitude, conduct, substandard work, work rule violation, and insubordination. Id. Accordingly, given Claimant s non-injury related problems at work, we conclude that because her lack of production was only one of numerous reasons 3 for her termination from employment, Claimant failed to establish that through no fault of her own, her earning power is again negatively impacted by her injury. Accordingly, we affirm. BONNIE BRIGANCE LEADBETTER, President Judge 3 Moreover, it is not clear that she is entirely faultless with regard to her physical limitations, given the credited testimony concerning her lack of cooperation with the physical therapy program. 7

8 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Audelia Medina, : Petitioner : : v. : No C.D : Workers Compensation Appeal : Board (Giorgi Mushrooms), : Respondent : O R D E R AND NOW, this 5th day of November, 2009, the order of the Workers Compensation Appeal Board in the above-captioned matter is hereby AFFIRMED. BONNIE BRIGANCE LEADBETTER, President Judge