Opinion
No. 1189 C.D. 2011
04-04-2012
Beverly Barbe, Petitioner v. Workers' Compensation Appeal Board (Papel Giftware), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
This case was assigned to the opinion writer before January 7, 2012, when Judge Pellegrini became President Judge.
Beverly Barbe (Claimant) petitions for review of the June 8, 2011, order of the Workers' Compensation Appeal Board (Board), which affirmed the decision of a workers' compensation judge (WCJ) granting the petition of Papel Giftware (Employer) to modify and to suspend Claimant's compensation benefits. We affirm in part and reverse and remand in part.
On January 20, 1998, Claimant sustained a work-related injury to her neck in the nature of a cervical strain. Employer issued a notice of compensation payable accepting liability for Claimant's injury. Claimant received benefits until March 22, 1999, at which time her benefits were suspended. On February 26, 2002, Claimant sustained a second work-related injury in the nature of a left shoulder sprain. Employer issued a notice of temporary compensation payable, which later converted to a notice of compensation payable, accepting liability for Claimant's shoulder injury. Claimant subsequently underwent an independent medical examination (IME) with Todd Kelman, D.O., who concluded that Claimant was capable of returning to full-time, light-duty work with restrictions. Employer issued Claimant a Notice of Ability to Return to Work citing the results of the IME. Claimant then submitted to a vocational rehabilitation interview with Nancy Robinson, who conducted a labor market survey and identified several positions which she believed Claimant was capable of performing. Finally, Claimant underwent an impairment rating evaluation (IRE) with Jessica Williams, M.D., who concluded that Claimant had a whole body impairment of 2.5%. (Findings of Fact Nos. 1-14.)
The WCJ's Finding of Fact No. 2 incorrectly references the year of this injury as 2005.
Claimant thereafter filed several review and penalty petitions alleging that Employer had failed to pay certain medical expenses related to her work injuries. However, Employer subsequently paid the bills and these petitions were either withdrawn by Claimant or dismissed by the WCJ or the Board and are not part of the present appeal. (Board Decision at 1-4.)
Following these examinations and interview, Employer filed a petition seeking to modify Claimant's disability status based upon the results of the IRE and to suspend Claimant's benefits based upon the IME and the labor market survey. Claimant filed an answer denying that work was generally available, but admitting that her IRE rating was less than 50%. The case proceeded with hearings before the WCJ. (Findings of Fact Nos. 3-4.)
The WCJ's decision references two modification/suspension petitions filed by Employer. However, the original record only contains one such petition filed on April 3, 2008, which sought both a modification and a suspension of Claimant's benefits.
Employer presented the IRE report of Dr. Williams reflecting her conclusion that Claimant had a whole body impairment rating of 2.5%. Claimant did not contest the IRE results. Employer also presented the deposition testimony of Dr. Kelman, who is board-certified in orthopedic surgery with a subspecialty in hand and upper extremity surgery. Dr. Kelman conducted the IME of Claimant on November 7, 2007, and he diagnosed Claimant as suffering from chronic left shoulder pain, possible chronic mild tendinopathy of the left shoulder, cervical degenerative disc disease with bilateral radiculopathy, and pre-existing fibromyalgia. Dr. Kelman opined that Claimant was capable of working full-time, but only light-duty and with certain restrictions, including no lifting, pushing, or pulling in excess of 20 pounds and no repetitive simple or firm grasping with the left arm. (Findings of Fact Nos. 7-10.)
Employer also presented the deposition testimony of Robinson, the certified vocational rehabilitation counselor who met with Claimant on January 17, 2008. During that meeting, Claimant confirmed receipt of the Notice of Ability to Return to Work as well as Dr. Kelman's IME report. Robinson reviewed Claimant's work injuries, medical treatment, and employment history, which included prior experience as a sales representative and professional recruiter. Robinson identified several positions which she believed fit within Claimant's physical capabilities, education, skills, and experience, including: a counter sales agent with Avis Rent-a-Car; a sales position with Global Systems, Inc.; a recruiter position with Temp Starr Staffing; and a sales position with a Toyota/Chrysler/Jeep dealership. Robinson further testified regarding the job requirements and salaries for each position. Robinson opined that Claimant had an earning capacity of $422.00 to $1,346.00 per week, or an average earning capacity of $787.00. (Findings of Fact Nos. 11-19, 23.)
Robinson noted that Employer was no longer in business. (Finding of Fact No. 13.)
Claimant did not testify, but she presented the deposition testimony of Terry Leslie, also a certified vocational rehabilitation counselor. Leslie never met with Claimant. Instead, he relied upon information contained in Robinson's reports in performing his vocational evaluation and earning capacity assessment. While Leslie opined that Claimant did not have a particular earning capacity, he admitted that he had no concerns regarding Robinson's vocational evaluation or earning capacity assessment. (Findings of Fact Nos. 25-26.)
The WCJ accepted the report of Dr. Williams and the testimony of Dr. Kelman as credible and accepted the testimony of Robinson as more credible than the testimony of Leslie. Having made these credibility determinations, the WCJ concluded that Employer met its burden of proving that Claimant's benefits should be suspended as of February 26, 2008, based upon the available sales position with the Toyota/Chrysler/Jeep dealership at a salary of $1,346.00 per week. The WCJ also concluded that Employer met its burden of proving that Claimant's disability status should be modified as of March 14, 2008, based upon Dr. Williams' IRE results. Hence, the WCJ granted Employer's petition to modify and to suspend Claimant's disability benefits. Claimant appealed to the Board, which affirmed the WCJ's decision.
Claimant's pre-injury average weekly wage was $1,242.26 per week.
Again, Claimant did not contest the IRE results but admitted in her answer that her IRE rating was less than 50%. In accordance with section 306(a.2)(2) of the Pennsylvania Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, added by the Act of June 24, 1996, P.L. 350, as amended, 77 P.S. §511.2(2), a finding of less than 50% impairment mandates a change in Claimant's status from total to partial disability. The change in status based on the IRE does not affect the amount of Claimant's compensation, but it triggers the 500-week maximum period for receipt of the same under section 306(b)(1) of the Act, 77 P.S. §512(1).
On appeal to this Court, Claimant argues that the WCJ failed to issue a reasoned decision because he failed to specifically assign Claimant an earning power, his findings do not support his legal conclusions, and his findings are not supported by the evidence. We agree.
Our scope of review is limited to determining whether findings of fact were supported by substantial evidence, whether an error of law was committed or whether constitutional rights were violated. Meadow Lakes Apartments v. Workers' Compensation Appeal Board (Spencer), 894 A.2d 214 (Pa. Cmwlth. 2006).
Section 422(a) of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §834, provides, in pertinent part, as follows:
All parties to an adjudicatory proceeding are entitled to a reasoned decision containing findings of fact and conclusions of law based upon the evidence as a whole which clearly and concisely states and explains the rationale for the decisions so that all can determine why and how a particular result was reached. The workers' compensation judge shall specify the evidence upon which the workers' compensation judge relies and state the reasons for accepting it in conformity with this section. When faced with conflicting evidence, the workers' compensation judge must adequately explain the reasons for rejecting or discrediting competent evidence. Uncontroverted evidence may not be rejected for no reason or for an irrational reason; the workers' compensation judge must identify that evidence and explain adequately the reasons for its rejection. The adjudication shall provide the basis for meaningful appellate review.Our Supreme Court has explained that "a decision is 'reasoned' for purposes of Section 422(a) if it allows for adequate review by the [Board] without further elucidation and if it allows for adequate review by the appellate courts under applicable review standards." Daniels v. Workers' Compensation Appeal Board (Tristate Transport), 574 Pa. 61, 76, 828 A.2d 1043, 1052 (2003).
An employer seeking a modification of benefits can either offer the claimant a specific job which it has available and which the claimant is capable of performing, or it can establish the claimant's earning power through expert opinion evidence, including listings of available jobs with employment agencies, agencies of the Department of Labor and Industry, and advertisements in the usual area of employment. Section 306(b)(2) of the Act, 77 P.S. §512(2); South Hills Health System v. Workers' Compensation Appeal Board (Kiefer), 806 A.2d 962 (Pa. Cmwlth. 2002). Section 306(b)(2) further provides that "[d]isability partial in character shall apply if the employe... can, considering the employee'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."
Regarding earning power, Claimant correctly notes that the WCJ never made an explicit finding that she had an earning power of $1,346.00 per week. Arguably, such a finding might be inferred from the WCJ's conclusion that Employer met its burden for a suspension of Claimant's benefits based on the "Toyota position" and in light of Robinson's testimony that the upper end of the salary range for the position at the Toyota/Chrysler/Jeep dealership was $1,346.00 per week, the only figure which would support a suspension of Claimant's benefits based upon her pre- injury average weekly wage of $1,242.26 per week. However, Robinson never explained the broad salary range at that position ($35,000.00 to $70,000.00 in the first year or an average weekly wage of $673.00 to $1,346.00), nor did Robinson specifically testify that Claimant was capable of earning $70,000.00 annually. Instead, Robinson testified that Claimant had an earning capacity of $787.00 per week, which represented the average of the salaries of all the positions identified in Robinson's labor market survey.
An appellate court's scope of review precludes a court from making factual findings or credibility determinations. Mayo v. Workmen ' s Compensation Appeal Board (Youth Development Center), 543 A.2d 617 (Pa. Cmwlth. 1988).
While Employer correctly notes that this Court, in Marx v. Workers' Compensation Appeal Board (United Parcel Service), 990 A.2d 107 (Pa. Cmwlth. 2010), rejected an argument from the claimant that the WCJ was required to calculate her earning capacity by taking the average salary of the positions identified in a labor market survey, Marx does not support the WCJ's decision in the present case. In Marx, the WCJ specifically found that the claimant had an earning capacity of $376.60 per week, which finding was supported by the testimony of a vocational rehabilitation counselor and a labor market survey identifying a position available to the claimant which paid that amount per week. In this case, the WCJ made no such finding and Robinson's testimony and labor market survey merely reflect a potential salary of $35,000.00 to $70,000.00 for the sales position with the Toyota/Chrysler/Jeep dealership. Moreover, Robinson specifically testified that her assessment of Claimant's earning power was $787.00 per week.
Robinson did not address whether the sales position with the Toyota/Chrysler/Jeep dealership and the extensive salary range can be attributed to commission and bonuses, which are common in the automotive sales industry. Furthermore, while Robinson's vocational assessment revealed that Claimant had many years of sales experience, she noted no prior experience on Claimant's part with automobile sales. See Finding of Fact No. 15. We addressed a similar situation in Select Security, Inc. v. Workers' Compensation Appeal Board (Kobrin), 901 A.2d 1129 (Pa. Cmwlth. 2006). In Select Security, the claimant held concurrent employment with the employer as an outside security systems salesperson and with another company as an audio equipment salesperson. The claimant suffered an injury in course of his employment with the employer and received total disability benefits based on his concurrent employment. The claimant subsequently returned to work with the other company and his benefits were reduced to partial disability. Following an IME several years later which concluded that the claimant was capable of working 40 hours per week with restrictions, the employer issued a notice of ability to return to work and later filed a modification petition.
In her deposition testimony, Robinson noted that Claimant had previously sold gift items, gourmet foods, picture frames and moldings. (R.R. at 33a-34a.)
We note that, with respect to the identified positions with Avis Rent-a-Car and Temp Starr Staffing, Robinson explained that Claimant would be at the higher end of the salary ranges based upon her experience in sales. (R.R. at 43a, 48a.)
Before the WCJ, the employer offered the testimony of a vocational rehabilitation counselor who found several jobs, including selling windows and automobiles, which allegedly were available and fit within the claimant's medical restrictions. The WCJ generally accepted this testimony as credible, but specifically rejected any testimony from the vocational rehabilitation counselor regarding the claimant's earning capacity, noting that the salary range for these positions was based upon commission and the claimant lacked experience in selling these items. Instead, the WCJ attributed an earning capacity to the claimant which reflected the average of the low end salary for each of these positions. The Board affirmed, as did this Court with respect to this issue.
We noted that our review was limited to determining whether there was substantial evidence supporting the WCJ's earning capacity finding. Citing the WCJ's rejection of the testimony of the vocational rehabilitation counselor regarding the claimant's earning capacity, the fact that said earning capacity was premised upon sales commissions, and the claimant's lack of experience in selling windows and automobiles, we concluded that the WCJ's finding was adequately supported by substantial evidence in the record. More specifically, although the claimant had prior experience in sales, we cited the claimant's lack of experience in selling windows and automobiles, positions identified in a labor market survey as being available to the claimant, as well as the impact of commissions on potential salary ranges, as support for the WCJ's decision attributing the claimant an earning capacity which reflected the average of the low end salary ranges for these positions. We agree with Claimant that these factors are equally relevant to a determination of Claimant's earning power in the present case, a determination the WCJ failed to make.
Regarding availability, Claimant also correctly contends that the WCJ failed to make any findings of fact that the sales position with the Toyota/Chrysler/Jeep dealership was within her residual capabilities. Section 306(b)(2) of the Act requires an employer to convince the fact-finder that positions identified by a vocational expert are within the injured worker's residual capacity and are actually available. Allied Products and Services v. Workers' Compensation Appeal Board (Click), 823 A.2d 284 (Pa. Cmwlth. 2003). While a physician need not pre-approve each possible alternate position, some qualified witness must persuade the fact-finder that an injured worker can perform the work. Id.
In her earning power evaluation, Robinson indicated that Dr. Kelman had reviewed and approved the job descriptions with respect to the positions at Avis Rent-a-Car, Global Systems, Inc., and Temp Starr Staffing. (R.R. at 112a.) However, Robinson noted no such approval for the position with the Toyota/Chrysler/Jeep dealership. Instead, Robinson merely described this position as being available as of February 18, 2008, consisting of full-time, sedentary to light-duty work, and paying a salary between $35,000.00 and $70,000.00 for the first year. In her deposition testimony, Robinson simply reiterated this description, while providing detailed descriptions of the job duties and physical requirements of the identified positions with Avis Rent-a-Car, Global Systems, Inc., and Temp Starr Staffing. (R.R. at 39a-48a.)
Robinson testified that she conducted on-site job analyses of these positions, (R.R. at 40a), but only "spoke with the individual on the phone" regarding the position with the Toyota/Chrysler/Jeep dealership. (R.R. at 49a.) On cross-examination, Robinson acknowledged that she did not conduct an on-site job analysis with respect to this latter position. (R.R. at 57a.)
While Robinson concluded her earning power evaluation by stating that all of the identified positions were available within Claimant's employment/geographical area, Robinson failed, either in this evaluation or in her deposition testimony, to provide any specifics concerning the job requirements for the position with the Toyota/Chrysler/Jeep dealership or otherwise explain how this position fit within Claimant's physical limitations. As noted above, Robinson also failed to indicate where Claimant fit within the salary range for this position.
See R.R. at 113a. --------
Because the WCJ's decision lacked the necessary findings regarding the position with the Toyota/Chrysler/Jeep dealership, we must conclude that the WCJ's decision in that regard was not "reasoned." Moreover, having concluded that the record lacks the substantial evidence required to support the WCJ's findings regarding the availability of the position with the Toyota/Chrysler/Jeep dealership, we reverse the Board's decision to the extent that it affirms the suspension of Claimant's benefits. Nevertheless, Robinson did credibly testify regarding the three remaining positions she found to be available to Claimant as part of her labor market survey, i.e., the positions with Avis Rent-a-Car, Global Systems, Inc., and Temp Starr Staffing, and the WCJ made specific findings of fact regarding the job requirements and salaries of each of these positions. Because Employer established that Claimant has some earning power, we conclude that a remand is necessary in order for the WCJ to make further findings and calculations in this regard.
Accordingly, we affirm the Board's order with respect to the modification of benefits. However, we reverse the Board's order insofar as it affirmed the WCJ's decision granting Employer's petition to suspend Claimant's compensation benefits based upon the position with the Toyota/Chrysler/Jeep dealership. The matter is remanded to the Board, with specific instructions to remand to the WCJ, for further findings consistent with this opinion.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 4th day of April, 2012, the order of the Workers' Compensation Appeal Board (Board), dated June 8, 2011, insofar as it affirmed the modification of Beverly Barbe's (Claimant's) compensation benefits from total to partial, is affirmed. The order of the Board, insofar as it affirmed the suspension of Claimant's compensation benefits based upon a position with the Toyota/Chrysler/Jeep dealership, is hereby reversed. The matter is remanded to the Board, with specific instructions to remand to the Worker's Compensation Judge, for further findings consistent with this opinion.
Jurisdiction relinquished.
/s/_________
PATRICIA A. McCULLOUGH, Judge