Opinion
No. 1579 C.D. 2013
06-05-2014
Debra Schiefer, Petitioner v. Workers' Compensation Appeal Board (First Data Corporation), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Debra Schiefer (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (WCAB). The WCAB affirmed the decision of a Workers' Compensation Judge (WCJ), which (1) granted Claimant's claim petition, finding that Claimant sustained a work-related injury in the course of her employment in customer service with First Data Corporation (Employer); and (2) granted Employer's termination petition, finding that Claimant had fully recovered from her work-related injury. For the reasons set forth below, we affirm the WCAB's order.
I. BACKGROUND
This matter focuses, in large part, on the interplay between a claim Claimant made for unemployment compensation benefits as a result of her separation from employment with Employer and her claim for workers' compensation benefits. As such, the pertinent factual and procedural background of each claim follows.
A. Unemployment Compensation Claim
Claimant filed her claim for unemployment compensation benefits on June 6, 2010. Of import for purposes of this appeal, on June 18, 2010, Employer completed an Employer Questionnaire with regard to Claimant's unemployment compensation claim, indicating that Claimant was on a leave of absence for health problems and that Employer did not offer other work to Claimant because it "was not an option - [Claimant] cannot work at all." (Reproduced Record (R.R.) at 371a.) On June 21, 2010, Employer also completed an Employer's Notice of Application/Request for Separation and Wage Information form (Employer's Notice of Application), indicating that Claimant "is currently on a leave of absence due to a work[-]related injury. [Claimant] has not given . . . [Employer] a return date." (Id. at 370a.) Employer provided this information in response to a question asking the reason for Claimant's separation or partial unemployment. (Id.)
Ultimately, the Unemployment Compensation Board of Review (UCBR) denied Claimant unemployment compensation benefits for the week ending June 26, 2010. (UCBR Decision at 2, 4.) Specifically, the UCBR concluded that Claimant was ineligible for benefits under Section 402(b) of the Unemployment Compensation Law (Law) and disqualified from receiving benefits under Section 401(d)(1) of the Law. (Id. at 4.) In so doing, the UCBR made the following findings of fact:
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b). Section 402(b) of the Law provides that an employee is ineligible for benefits when he voluntarily terminates his employment without cause of a necessitous and compelling nature.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 801(d)(1). Section 401(d)(1) of the Law provides that a claimant must be "able to work and available for suitable work" in order to receive benefits.
1. The claimant was last employed as a customer service representative by the employer from November 15, 1999, at a final hourly rate of $13.50 and her last day of work was October 30, 2009.
2. On August 24, 2009, the claimant sustained a work-related injury to her back.
3. The claimant has an ongoing workers' compensation proceeding regarding this injury.
4. The claimant applied for [leave under the Family and Medical Leave Act of 1993 (FMLA)], which was granted on a limited basis, as she had a previous FMLA claim that ran from June 1, 2009, through August 16, 2009.
5. The claimant returned to work with restrictions of being able to work only four hours per day and unable to sit or stand for long periods of time.
6. The employer asked for but never received a doctor's note from the claimant and she was required to return to work at full duty by the employer.
7. The claimant worked full duty from October 5, 2009, until October 30, 2009.
8. The claimant admitted that the employer accommodated her verbal medical restrictions.
9. The employer provided the claimant with additional breaks and had provided in 2008 a specific chair to address the claimant's medical issues.(Id. at 1-2.)
10. The claimant was subsequently removed from work to receive more intense medical treatment.
11. The claimant subsequently did hand the employer a doctor's note but it was after she had removed herself from work because her condition became more serious.
12. On June 30, 2010, the employer provided the claimant with notice that she was medically cleared to return to work.
13. Claimant did not arrange for the medical release information to be sent to the employer but rather sent it to the employer's medical risk manager and handled it through the court.
14. The claimant voluntarily quit her employment.
15. The claimant was not able and available.
16. The claimant continues on the date of the hearing to allege that she is unable to stand or sit for long periods of time.
17. The claimant alleges that the doctor told her she could work four hours per day with frequent movement.
18. The claimant admitted that she was out of the state from June 20 through [June] 28, 2010, visiting her son.
19. The claimant worked on Election Day, November 2, 2010, and received monies.
The UCBR noted that there was no question that Claimant sustained a work-related injury, and it further observed that Claimant subsequently went out of work because her injury became more serious after October 30, 2009. (Id. at 3.) The UCBR explained, however, that from the time Claimant left work on October 30, 2009, until she was provided notice through an independent medical examination (IME) that she could return to work without restrictions, Claimant failed to inform Employer of any work restrictions she may have had and that she was available to work within those restrictions. (Id. at 3-4.) Consequently, the UCBR concluded that Claimant did not meet her burden to prove that she made a reasonable effort to maintain her employment and that she was available for work with restrictions. (Id.) Moreover, the UCBR rejected Claimant's testimony that for the claim week at issue, Claimant was able and available and realistically attached to the job market. (Id. at 4.) The UCBR observed that the Claimant Questionnaire, to which Claimant did not object, contained admissions against interest that Claimant was out of the state visiting her son and, thus, her presumption of availability and realistic attachment to the labor market had been rebutted for that claim week. (Id.) The UCBR, therefore, concluded that Claimant was ineligible for benefits under Sections 402(b) and 401(d)(1) of the Law. (Id.)
B. Workers' Compensation Claim
On January 28, 2010, prior to filing her unemployment compensation claim, Claimant filed a claim for workers' compensation benefits pursuant to the Workers' Compensation Act (Act). In her claim petition, Claimant alleged that she sustained a work-related injury to her back on August 24, 2009, while moving boxes of microfilm. (WCJ Decision at 1-2.) In response, Employer filed a timely answer denying the material allegations of the petition. (Id. at 1.) Subsequently, Employer filed a termination petition, alleging that to the extent Claimant suffered a work-related injury, she had fully recovered from that injury as of June 19, 2010. (Id.) Both petitions were assigned to a WCJ, who held evidentiary hearings. (Id.)
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
Previously, on December 22, 2009, Employer filed a Notice of Workers' Compensation Denial (NCD), declining to pay workers' compensation benefits to Claimant for an August 24, 2009 work-related injury and indicating that notice of the injury was given on December 10, 2009. (WCJ Decision at 1.)
By decision and order circulated on August 25, 2011, the WCJ granted the claim petition and the termination petition. At the outset, the WCJ explained that at a hearing held on February 24, 2011, the WCJ permitted Claimant to submit records concerning the unemployment compensation matter. (Id.) Claimant submitted that evidence, which was admitted into the record over Employer's objection. (Id.) The WCJ also noted that notwithstanding Claimant's request to admit certain letters concerning the unemployment compensation case into the record, those letters were not made part of the record because they were not evidence. (Id.)
Claimant had marked a group of letters, which included exchanges between opposing counsel and the WCJ, as exhibits "C-9a" through "C-9e." These letters largely concern Employer's production of documents from the unemployment compensation matter and the parties' positions regarding the effect of the unemployment compensation proceeding on the instant workers' compensation proceeding. (R.R. at 433a-43a.) Additionally, Claimant marked a separate letter, which the WCJ had sent to counsel for both parties, as exhibit "C-10." This letter included the WCJ's ruling to admit the UCBR decision into the record and the WCJ's order directing Employer to provide Claimant with documents submitted at the unemployment compensation hearing. (Id. at 444a.) Notably, in excluding these letters from the record, the WCJ admitted into the record the Employer's Notice of Application and the Employer Questionnaire as exhibits C-9 and C-10, respectively, notwithstanding the fact that Claimant had originally marked those exhibits as exhibits C-11 and C-12, respectively. (WCJ Decision, Cover Page 3.)
With regard to the petitions at issue, the WCJ concluded that Claimant had established that she sustained a work-related injury in the nature of a lumbar sprain and strain on August 24, 2009, and that she gave timely notice of the injury to Employer. (Id. at 9.) The WCJ further concluded that Claimant was totally disabled due to the work-related injury as of November 4, 2009. (Id.) The WCJ also concluded that Employer had established that Claimant was fully recovered from her work-related injury as of May 10, 2010. (Id.) The WCJ, therefore, granted Claimant's claim petition and ordered Employer to pay Claimant temporary total disability benefits as of November 4, 2009. (Id.) The WCJ also granted Employer's termination petition and terminated benefits as of May 10, 2010. (Id.)
Additionally, the WCJ found that Employer had engaged in a reasonable contest, as there were legitimate credibility issues as to whether Claimant sustained an injury on August 24, 2009, and whether Claimant provided timely notice of the injury to Employer. (Id. at 8.) Moreover, the WCJ explained that Claimant's own medical expert testified that a notation of a work injury was not contained in his records. (Id.) The WCJ further explained that Employer was not precluded from challenging the claim petition based on the unemployment compensation proceeding. (Id.)
Claimant appealed to the WCAB, which affirmed. In so doing, the WCAB rejected Claimant's argument that, based on the unemployment compensation proceeding, the doctrines of equitable estoppel and collateral estoppel required a reversal of the WCJ's grant of Employer's termination petition. (WCAB Decision at 1-6.) The WCAB also rejected Claimant's argument that the WCJ erred in excluding from the record the letters relating to the unemployment compensation proceeding and renumbering other admitted exhibits, reasoning that any errors in this respect were technical and harmless. (Id. at 7-8.) Moreover, the WCAB concluded that the WCJ did not err in failing to award attorney's fees for unreasonable contest, based on the testimony of Employer's medical expert that Claimant had fully recovered from any injury she may have sustained and other testimony establishing that there was a question of whether Claimant timely reported her alleged work injury to Employer. (Id. at 8-9.) Claimant then petitioned this Court for review.
The WCAB further concluded that the WCJ did not err in granting Employer's termination petition, as substantial competent evidence supported the WCJ's decision in this regard. (WCAB Decision at 6-7.)
II. ISSUES ON APPEAL
On appeal, Claimant argues, in essence, that the WCAB erred in (1) affirming the WCJ's grant of Employer's termination petition, (2) concluding that the WCJ's exclusion of the letters concerning the unemployment compensation proceeding from the record was harmless error, and (3) failing to award attorney's fees for unreasonable contest.
This Court's standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704. Where an appeal presents a question of law, our scope of review is plenary. Am. Road Lines v. Workers' Comp. Appeal Bd. (Royal), 39 A.3d 603, 610 n.6 (Pa. Cmwlth. 2012).
Claimant also argues that the WCAB erred in concluding that the WCJ's sua sponte renumbering of exhibits was harmless error. We note, however, that by order dated December 18, 2013, the Honorable Keith B. Quigley of this Court directed that "[t]o the extent that the [WCJ] renumbered [Claimant's] Exhibits C-11 and C-12 to reflect numbering as C-9 and C-10, respectively, the Exhibits contained in the Certified Record marked C-9 and C-10 by the WCJ shall retain [Claimant's] original numbering of C-11 and C-12." (Petitioner's Amended Brief, Appendix C.) Because Senior Judge Quigley's order resolves the issue regarding the WCJ's sua sponte renumbering of exhibits, we need not address that issue further here.
III. DISCUSSION
A. Termination Petition
Claimant contends that because Employer judicially admitted in the unemployment compensation proceeding that Claimant was unable to work at all due to a work-related injury, and Employer prevailed in the unemployment compensation proceeding as a result, Employer is estopped from arguing in this proceeding that Claimant was fully recovered from her work-related injury. Claimant contends that, as a consequence, the decision to grant Employer's termination petition is improperly premised upon Employer's contradiction of its previous judicial admissions in the unemployment compensation proceeding. Claimant relies upon the legal principles concerning equitable estoppel, collateral estoppel, and judicial estoppel in support of her position.
We do not agree that in the unemployment compensation proceeding, Employer judicially admitted or otherwise maintained the position that Claimant was unable to work at all due to a work-related injury. A review of the Employer Questionnaire and Employer's Notice of Application reveals that in making its representations to the unemployment compensation authorities, Employer simply provided contextual information regarding why Claimant was separated from work for the time period at issue and why it had not offered Claimant other suitable work. Moreover, it does not appear that any other evidence of record from the unemployment compensation proceeding indicates that Employer maintained such a position.
"A judicial admission is a formal waiver of proof that relieves an opposing party from having to prove the admitted fact and bars the party who made the admission from disputing it." Reeder v. Workers' Comp. Appeal Bd. (Mercer Lime & Stone Co.), 871 A.2d 337, 340 (Pa. Cmwlth. 2005). Judicial admissions "may be contained in pleadings, stipulations and other like documents." Sherrill v. Workmen's Comp. Appeal Bd. (Sch. Dist. of Phila.), 624 A.2d 240, 243 (Pa. Cmwlth. 1993). Employer's statements made in the unemployment compensation forms are not of sufficient formality to constitute judicial admissions. Furthermore, even if Employer's statements were judicial admissions, they would not be conclusive in this proceeding. See Orange Stones Co. v. City of Reading, Zoning Hearing Bd., 32 A.3d 287, 291 n.6 (Pa. Cmwlth. 2011) (providing that it is well settled that purported judicial admission made in pleading in prior proceeding is only conclusive in that prior proceeding).
Further, even if we accepted that Employer was asserting inconsistent positions in both proceedings, we likewise do not agree that Employer prevailed in the unemployment compensation proceeding because of the representations in question. Specifically, the UCBR did not rely on Claimant's inability to return to work as the basis for denying benefits. Rather, the UCBR concluded that Claimant did not meet her burden to show that she made a reasonable effort to maintain her employment, that she was available for work with restrictions, and that she was realistically attached to the job market. It does not follow from these conclusions that the UCBR decided that Claimant actually could not work at all due to a work-related injury or denied benefits for that reason.
Because Claimant bases her legal arguments on an incorrect factual premise, those arguments must fail. The WCAB, therefore, did not err in affirming the WCJ's grant of Employer's termination petition.
B. Exclusion of Exhibits
Claimant appears to argue that the letters concerning the unemployment compensation proceeding should have been admitted into the record, because they include the WCJ's order directing Employer to produce documents from the unemployment compensation proceeding and relate to Employer's actions in failing to produce those documents. Claimant further contends that the letters directly pertain to Employer's unreasonable contest.
Claimant notes that the unemployment compensation documents demonstrate that Employer maintained inconsistent positions in the proceedings, forming the crux of Claimant's appeal.
It is well settled that "the admission of evidence is within the sound discretion of the WCJ." Washington v. Workers' Comp. Appeal Bd. (Commonwealth State Police), 11 A.3d 48, 59 (Pa. Cmwlth. 2011). The WCJ is permitted to exclude evidence that is irrelevant, confusing, misleading, cumulative, or prejudicial. Id. This Court will not overturn a WCJ's determinations regarding the admission of evidence unless there was an abuse of discretion. Id. "An abuse of discretion occurs where the WCJ's judgment is manifestly unreasonable, where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will." Allegis Grp. & Broadspire v. Workers' Comp. Appeal Bd. (Coughenaur), 7 A.3d 325, 327 n.3 (Pa. Cmwlth. 2010).
The WCJ did not abuse his discretion in excluding the letters from the record. As noted above, these exhibits consist of letters that were exchanged between the parties' counsel and the WCJ that, in large part, pertain to Employer's production of documents from the unemployment compensation proceeding and the parties' positions as to the effect of the unemployment compensation proceeding on the instant proceeding. Because they have no probative value, the letters themselves are irrelevant. Thus, notwithstanding the WCAB's conclusion that any errors committed by the WCJ in this regard were harmless, we conclude that the WCAB did not err in affirming the WCJ's decision to exclude the letters from the record.
Although Claimant argues that the letters should have been admitted because they relate to Employer's unreasonable contest, we reject this argument. As discussed herein, Employer did not engage in an unreasonable contest on the basis that it asserted inconsistent positions in the proceedings at issue or as a result of its actions in failing to produce documents that evidenced its inconsistent positions.
C. Failure to Award Attorney's Fees
Claimant essentially argues that Employer engaged in an unreasonable contest because, notwithstanding its prior position in the unemployment compensation proceeding that Claimant could not work at all due to a work-related injury, Employer proceeded to contest the workers' compensation claim on the basis that Claimant had fully recovered from her injury. Claimant appears to further argue that she is entitled to attorney's fees as a result of Employer's actions in failing to produce documents from the unemployment compensation proceeding that evidenced its inconsistent positions.
Section 440(a) of the Act, as amended, added by the Act of February 8, 1972, P.L. 25, 77 P.S. § 996(a), provides that a successful claimant shall be awarded attorney's fees unless the employer proves that it had a reasonable basis for the contest. "The reasonableness of the employer's contest is a question of law subject to plenary review by this Court." Kraeuter v. Workers' Comp. Appeal Bd. (Ajax Enters., Inc.), 82 A.3d 513, 522 (Pa. Cmwlth. 2013). "[T]he reasonableness of an employer's contest depends upon whether the contest was prompted to resolve a genuinely disputed issue or merely to harass the claimant." Capper v. Workers' Comp. Appeal Bd. (ABF Freight Sys., Inc.), 826 A.2d 46, 51 (Pa. Cmwlth. 2003). --------
As discussed above, Employer was not estopped in this matter from challenging Claimant's disability status on the basis that Claimant had fully recovered from her injury and, thus, did not engage in an unreasonable contest for doing so. Likewise, any actions taken by Employer in failing to produce the documents that evidenced its inconsistent positions do not provide a basis for concluding that Employer engaged in an unreasonable contest. Moreover, Claimant does not challenge the reasons cited by the WCJ and the WCAB in concluding that Employer engaged in a reasonable contest. The WCAB, therefore, did not err in failing to award Claimant attorney's fees based on unreasonable contest.
IV. CONCLUSION
In sum, the WCAB did not err in affirming the WCJ's grant of Employer's termination petition, because Employer was not estopped from arguing in this workers' compensation proceeding that Claimant was fully recovered from her work-related injury. Moreover, the WCAB did not err in affirming the WCJ's decision to exclude from the record the various letters concerning the unemployment compensation proceeding, as those letters are not relevant to this proceeding. Finally, the WCAB did not err in failing to award Claimant attorney's fees, because Employer engaged in a reasonable contest.
Accordingly, we affirm the order of the WCAB.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 5th day of June, 2014, the order of the Workers' Compensation Appeal Board is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge