Opinion
No. 713 C.D. 2011
01-04-2012
City of Pittsburgh (Police) and UPMC Benefit Management Services, Inc., Petitioners v. Workers' Compensation Appeal Board (Gregorchik), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE LEADBETTER
The City of Pittsburgh (Employer) and its third-party administrator, UPMC Benefit Management Services, Inc., (collectively, Employer), petition for review of the order of the Workers' Compensation Appeal Board (Board) that affirmed the decision of the Workers' Compensation Judge (WCJ) suspending disability benefits of Marie Gregorchik (Claimant) for a certain period and reinstating her benefits. Employer argues that the WCJ applied an incorrect burden of proof in reinstating Claimant's benefits where she was found to have voluntarily removed herself from the workforce. Employer further argues that the reinstatement was improper because Claimant failed to make an effort to re-enter the workforce in good faith. We reject Employer's arguments and affirm the Board's order.
While working for Employer as a police officer, Claimant sustained a work-related injury to her left knee on December 6, 1994 and began receiving disability benefits under the Act of June 28, 1935, P.L. 477, commonly known as the Heart and Lung Act, as amended, 53 P.S. §§ 637-638. Claimant underwent surgery in March 1995 and returned to a light-duty position in the warrant office. She continued to work until Employer eliminated her light-duty position in 2003. Her benefits under the Heart and Lung Act were then converted to workers' compensation benefits. On December 11, 2003, she accepted a service-connected disability pension offered by Employer. Subsequently on May 16, 2007, Dr. James L. Cosgrove performed an independent medical examination and reviewed Claimant's medical records at Employer's request. Dr. Cosgrove released Claimant to full-time medium-level work, finding that she had reached a maximum medical improvement. Employer then sent her a notice of ability to return to work on May 30, 2007 and filed a petition to suspend her workers' compensation benefits as of May 16, 2007, alleging that she had been released to return to work and had voluntarily removed herself from the workforce.
Police officers, who are temporarily incapacitated from performing duties due to a work injury, are paid a full rate of salary until their temporary disability ceases. Section 1(a) of the Heart and Lung Act, 53 P.S. § 637(a); Cunningham v. Pa. State Police, 510 Pa. 74, 507 A.2d 40 (1986); McWreath v. Dep't of Pub. Welfare, 26 A.3d 1251 (Pa. Cmwlth. 2011).
At a hearing held on September 10, 2007, Claimant testified that she took care of her ill mother and did not seek employment for two years after she accepted the disability pension in 2003 and that she only looked through job ads and did not apply for a position between 2005 and 2007. At a second hearing on October 9, 2008, Claimant testified that she had applied for several positions through CareerLink and for positions with other employers beginning March 14, 2008, but had received no job offer. She took a test administered by the United States Postal Service and completed courses for Microsoft Word and Microsoft Excel in May 2008. Documents presented by her corroborated her testimony. She further testified that she would have continued to work and would not have applied for the disability pension had Employer not eliminated her light-duty position. Dr. Cosgrove testified that Claimant could stand and walk five to eight hours a day, sit and stand as necessary, lift up to fifty pounds, and occasionally squat, climb, kneel and crawl. Dr. Steven C. Williams, who had treated Claimant since March 2003, diagnosed her with persistent pain in her left knee and opined that she could perform sedentary work.
The WCJ accepted Dr. Cosgrove's testimony as more credible than Dr. Williams' testimony and rejected Claimant's testimony that she could work only in a sedentary position. The WCJ found that Claimant was able to perform medium-duty work as of Dr. Cosgrove's May 16, 2007 independent medical examination and that she voluntarily removed herself from the workforce as of that date. The WCJ accepted Claimant's testimony regarding her efforts to obtain employment as credible and further found that Claimant re-entered the workforce on March 14, 2008. The WCJ accordingly suspended Claimant's benefits from May 17, 2007 to March 14, 2008 and reinstated her benefits as of March 14, 2008. Employer appealed, challenging the reinstatement of Claimant's benefits.
The Board affirmed the WCJ's decision, relying on City of Pittsburgh v. Workers' Compensation Appeal Board (Robinson), 4 A.3d 1130 (Pa. Cmwlth. 2010), appeal granted in part, ___Pa. ___, 17 A.3d 917 (2011), and Day v. Workers' Compensation Appeal Board (City of Pittsburgh), 6 A.3d 633 (Pa. Cmwlth. 2010), in which the Court held that the employer seeking to suspend a retired employee's benefits must establish, by the totality of the circumstances, that he or she has chosen not to return to the workforce. The Board concluded that Claimant's testimony, accepted by the WCJ, established that she intended to return to the workforce. The Board rejected Employer's argument that once the WCJ found that Claimant removed herself from the workforce, the WCJ could not reinstate her benefits under the doctrine of collateral estoppel. Employer's appeal to this Court followed.
The Pennsylvania Supreme Court granted a petition for allowance of appeal from this Court's decision in Robinson on the limited issue of whether this Court erred by holding that, in a petition to suspend a claimant's benefits based on an alleged voluntary withdrawal from the workforce, the employer bears the burden of showing, by the totality of circumstances, that the claimant has chosen not to return to the workforce.
Employer argues that the WCJ failed to apply a correct burden of proof in reinstating Claimant's benefits. Employer maintains that once the WCJ suspended Claimant's benefits based on her voluntary removal from the workforce, the WCJ should have required her to establish that her earning power was once again adversely affected by the work injury, citing Pieper v. Ametek-Thermox Instruments Division, 526 Pa. 25, 584 A.2d 301 (1990), and Ragno v. Workers' Compensation Appeal Board (City of Philadelphia), 915 A.2d 1234 (Pa. Cmwlth. 2007). Employer claims that Claimant was required to show, in order to reinstate her benefits, that she actually obtained employment. Employer further argues that even if the WCJ applied a correct burden of proof, the reinstatement was still improper because Claimant was not engaged in a job search in good faith.
Our review is limited to determining whether the WCJ committed an error of law or whether the WCJ's findings of fact are not supported by substantial evidence. City of Pittsburgh v. Workers' Comp. Appeal Bd. (McFarren), 950 A.2d 358 (Pa. Cmwlth. 2008). The appellate role in a workers' compensation case is not to reweigh the evidence or review the credibility of the witnesses, but to determine whether the WCJ's findings have the requisite measure of support in the record as a whole. Bethenergy Mines, Inc. v. Workmen's Comp. Appeal Bd. (Skirpan), 531 Pa. 287, 612 A.2d 434 (1992).
In general, to modify or suspend a claimant's benefits, an employer must refer the claimant to an available position within his or her medical restrictions under Kachinski v. Workmen's Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987), or establish the claimant's earning power pursuant to Section 306(b)(2) of the Workers' Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 512(2). When the claimant has retired and voluntarily left the labor market, however, benefits must be suspended and "[t]he mere possibility that a retired worker may, at some future time, seek employment does not transform a voluntary retirement from the labor market into a continuing compensable disability." Se. Pa. Transp. Auth. v. Workmen's Comp. Appeal Bd. (Henderson), 543 Pa. 74, 79, 669 A.2d 911, 913 (1995). If "circumstances subsequently change in fact, a claimant might then be entitled to yet another change in his disability status." Id. To continue to receive benefits after retirement, the claimant must establish "that he is seeking employment after retirement or that he was forced into retirement because of his work-related injury." Id.
The facts in this case are similar to those in City of Pittsburgh v. Workers' Compensation Appeal Board (Leonard), 18 A.3d 361 (Pa. Cmwlth. 2011), involving a City of Pittsburgh police officer who sustained a work injury and later received a disability pension when his unemployment benefits ran out. Employer subsequently sent the claimant a notice of ability to return to work on August 16, 2007 and filed a suspension petition. Finding that the claimant had voluntarily withdrawn from the workforce from the issuance of the notice of ability to return to work until she began a good-faith job search on December 1, 2008, the WCJ suspended benefits only for that period. This Court upheld the suspension for the limited period, concluding that the claimant's testimony accepted by the WCJ as credible regarding her job search efforts, including contacting employers to inquire about job openings and applying for various positions, supported a finding that she made a good-faith job search effort beginning December 1, 2008.
In this case, Claimant testified that she only looked through job ads and did not apply for any position until 2007, which cannot satisfy her burden of establishing that she was actively seeking employment. Pa. State Univ. v. Workers' Comp. Appeal Bd. (Hensal), 948 A.2d 907 (Pa. Cmwlth. 2008). Even after she was released to medium-duty work on May 16, 2007 and subsequently received the notice of ability to return to work, she did not look for a job. As in Leonard, the totality of the circumstances established that Claimant removed herself from the entire workforce until she began a job search on March 14, 2008.
A retired employee, however, may seek a reinstatement of benefits if circumstances change. Henderson. Employer concedes that a claimant, who has voluntarily withdrawn from the workforce, may still "establish eligibility for a reinstatement of benefits." Employer's Brief at 14 n.6. To rebut the presumption of a voluntary withdrawal from the entire labor market upon retirement, the claimant must establish that he or she has looked for suitable work in good faith; the claimant "will not be denied benefits if he [or she] cannot find it." Day, 6 A.3d at 642. To demonstrate a good-faith job search, the claimant must present evidence that he or she "applied or sent applications for employment or other indicia that he [or she] was actively applying for employment." Hensal, 948 A.2d at 911. The mere searching of the Internet and newspaper ads for jobs does not constitute a job search. Id. Whether a party acted in good faith is a question for the fact-finder. City of Philadelphia Water Revenue Bureau v. Towanda Props., Inc., 976 A.2d 1244 (Pa. Cmwlth. 2009).
The definition of "good faith" includes "honesty in belief or purpose" or "absence of intent to defraud." Black's Law Dictionary 713 (8th ed. 2004).
Before the Board, Employer argued that under the doctrine of collateral estoppel, the WCJ could not reinstate Claimant's benefits after suspending her benefits, relying on Ragno. Under the doctrine, re-litigation of an issue of fact or law determined in a prior proceeding is precluded, if (1) the issue decided in the prior case is identical to the one presented in the later action; (2) there was a final adjudication on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party in the prior case; (4) the party or person in privity with the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding; and (5) the determination in the prior proceeding was essential to the judgment. Erisco Indus., Inc. v. Workers' Comp. Appeal Bd. (Luvine), 955 A.2d 1065 (Pa. Cmwlth. 2008). Unlike in Ragno, the WCJ suspended Claimant's benefits in the same proceeding, not in a separate previous proceeding. Moreover, the issues related to entitlement to suspension and reinstatement are different, and there is no prior final decision controlling the issue in this proceeding. Therefore, the doctrine does not apply in this case. --------
Claimant presented the following evidence regarding her efforts to find a job. She applied for the various positions referred by CareerLink on March 14, 2008 but was not hired: a psychological operations specialist position with the United States Army Reserves; an embroidery assistant position; a production worker position with Randstad; a court clerk position with Great Lakes Behavioral Research Institute; and a front desk clerk position with Microtel Inn & Suites. Claimant's Exhibit No. 5. She also applied for a position with Omni William Penn Hotel and received a letter, stating that it would not consider her application further. Id. On May 7, 2008, she took a test administered by the United States Postal Service and was placed on the register for a data conversion operator position. Id. She also completed courses for Microsoft Word and Excel in May 2008 to improve her computer skills. Id.
As in Leonard, the WCJ accepted Claimant's testimony regarding her job search efforts as credible. In a workers' compensation case, credibility determinations and the evaluation of evidentiary weight are within the exclusive province of the WCJ as a fact-finder. Clear Channel Broad. v. Workers' Comp. Appeal Bd. (Perry), 938 A.2d 1150 (Pa. Cmwlth. 2007). Where, as here, the WCJ's findings are based on credibility determinations, they may not be disturbed on appeal. Lehigh County Vo-Tech Sch. v. Workmen's Comp. Appeal Bd. (Wolfe), 539 Pa. 322, 652 A.2d 797 (1995). Claimant's evidence accepted by the WCJ was sufficient to establish her good-faith efforts to obtain employment and supports the WCJ's finding that she re-entered the workforce as of March 14, 2008.
Accordingly, the order of the Board is affirmed.
/s/_________
BONNIE BRIGANCE LEADBETTER,
President Judge ORDER
AND NOW, this 4th day of January, 2012, the order of the Workers' Compensation Appeal Board in the above-captioned matter is AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
President Judge