No. 960 CD 2014 Petitioner : Submitted: November 21, 2014
Transcription
No. 960 CD 2014 Petitioner : Submitted: November 21, 2014
IN THE COMMONWEALTH COURT OF PENNSYLVANIA William Conyers, Petitioner v. Workers’ Compensation Appeal Board (PPL Corporation), Respondent BEFORE: : : No. 960 C.D. 2014 : Submitted: November 21, 2014 : : : : : : : 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. ___________________________________ ROCHELLE S. FRIEDMAN, Senior Judge 11 IN THE COMMONWEALTH COURT OF PENNSYLVANIA William Conyers, Petitioner v. Workers’ Compensation Appeal Board (PPL Corporation), Respondent : : No. 960 C.D. 2014 : : : : : : : : 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