Opinion
No. 2368 C.D. 2011
06-01-2012
Valerie Washington, Petitioner v. Workers" Compensation Appeal Board (US Airways, Inc.), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Valerie Washington (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) that affirmed the decision of a Workers' Compensation Judge (WCJ) granting the Petition to Modify Compensation Benefits (Modification Petition) of US Airways, Inc. (Employer). In his decision and order, the WCJ found that Claimant was able to perform sedentary and some light-duty work and that Employer had met its burden of proving an increase in Claimant's earning capacity. The WCJ, accordingly, modified Claimant's disability status from total disability to partial disability and reduced her compensation rate. We affirm.
The facts found by the WCJ and the evidence found credible by the WCJ establish the following. Claimant, a flight attendant, was injured on July 27, 2006, when the nose landing gear of the plane in which she was working collapsed as the plane was leaving the gate and caused her to fall. (WCJ Decision, Findings of Fact (F.F.) ¶¶1, 4; June 23, 2008 Hearing Transcript (H.T.) at 15, Reproduced Record (R.R.) at 17a.) She sustained an injury to her neck and underwent surgery for that injury on November 26, 2006. (F.F. ¶4; June 23, 2008 H.T. at 15-16, R.R. at 17a-18a.) Claimant was paid total disability compensation benefits for this injury pursuant to a Notice of Temporary Compensation Payable issued in August 2006. (WCJ Decision at 1.) The injury recognized by the Notice of Temporary Compensation Payable was a sprain or strain to the cervical area, left trapezius and left shoulder. (Bureau Exhibit 1, Notice of Temporary Compensation Payable; WCJ Decision at 1.)
An orthopedic surgeon retained by Employer determined on independent medical examination of Claimant on December 7, 2007, that Claimant was capable of doing sedentary work or light-duty work up to certain weight lifting limitations. (F.F. ¶5.) On January 7, 2008, Employer mailed Claimant a notice of ability to return to work. (F.F. ¶3.) Employer has no sedentary or light-duty positions available to Claimant. (F.F. ¶¶9-10; Claimant Exhibit 7, Frishkorn Dep. at 15-16, R.R. at 54a; Employer Exhibit J, Connor Dep. at 6-7, R.R. at 87a-88a.) Employer, therefore, conducted a labor market survey and earning power assessment of outside employment opportunities within Claimant's limitations. (F.F. ¶12; Employer Exhibit F.) This labor market survey identified several open and available jobs with other employers that are within Claimant's physical limitations and educational and skill capabilities. (F.F. ¶¶5, 12, 13; Employer Exhibit F.)
The collective bargaining agreement in effect between Employer and its flight attendants contained the following provisions that apply to flight attendants on leave for work-related injuries:
c. The Company shall not arbitrarily deny a request for permission to engage in other employment while on a leave of absence .... Permission may be denied in the case of a flight attendant on a medical or occupation injury/illness leave of absence where the other employment is not consistent with his/her claim of being unable to perform his/her flight attendant duties or the other employment would impede or otherwise interfere with recovery and return to duty.(F.F. ¶¶9-11; Claimant Exhibit 4, Collective Bargaining Agreement, R.R. at 1a.) Claimant did not request permission from Employer to work at any of the jobs found by Employer's labor market survey, and Claimant did not receive any written permission or any denial of permission to work at any of those jobs. (Claimant Exhibit 11, Claimant Dep. at 9-10, 12-13, R.R. at 128a-129a, 131a-132a; Employer Exhibit J, Connor Dep. at 11, 36, R.R. at 92a, 117a.)
d. A flight attendant who, without prior permission of the Company, engages in other employment while on a leave of absence ... shall be deemed to have resigned and his/her name shall be removed from the System Seniority List.
On April 28, 2008, Employer filed a Modification Petition asserting that work was available to Claimant within her physical capabilities. On July 7, 2008, Claimant filed a Petition to Review Compensation Benefits (Review Petition) seeking to expand the description of her work-related injury to include depression, a low back injury, a left knee injury, and cervical diskectomies at C5-C6 and C6-C7 to correct aggravated cervical stenosis.
The WCJ held two evidentiary hearings at which Claimant testified and also received testimony of six other witnesses by deposition and additional testimony from Claimant by deposition. In his decision, the WCJ found credible Employer's medical evidence that Claimant is physically able to work at a sedentary job and some light-duty jobs. (F.F. ¶¶5, 13.) The WCJ rejected Claimant's contention that she suffers from depression or any other psychological impairment as a result of her work-place accident and found that she had not shown that she had any psychological condition that prevented her from working. (F.F. ¶¶7, 8 and Conclusion of Law ¶1.) The WCJ found that Employer had shown that part-time jobs within Claimant's capabilities were available with other employers and rejected Claimant's argument that the collective bargaining agreement requirement of Employer permission made those jobs unavailable to her. (F.F. ¶¶5, 9-13.) The WCJ concluded that Claimant had an earning capacity of $187.50 per week and, accordingly, modified her benefits from total disability at a rate of $588.56 per week to partial disability at a rate of $463.56 per week. (WCJ Decision at 1, 11, F.F. ¶¶2, 12-13 and Conclusion of Law ¶3.) The WCJ expanded Claimant's work-related injury to include aggravation of pre-existing stenosis and ruled that she was entitled 28 weeks of benefits for disfigurement from her surgical scar, but otherwise denied Claimant's Review Petition. (WCJ Decision at 11, F.F. ¶¶5-8, 14 and Conclusions of Law ¶¶1-2.)
Claimant appealed the WCJ's decision to the Board. The Board affirmed the WCJ's granting of Employer's Modification Petition. (Board Opinion at 7-13). With respect to Claimant's Review Petition, the Board modified the WCJ's expansion of Claimant's injury to the more specific description of "cervical strain superimposed on a pre-existing cervical stenosis and spondyloysis, acute radiculopathy on the left side at C5-6 and C6-7, and a cord contusion between C5 and C7." (Board Opinion at 2-5, 13). The Board also modified the disfigurement award to provide that Claimant would not receive payment of that award until disability payments are no longer due and owing, but otherwise affirmed the WCJ's rulings. (Board Opinion at 5-7, 13.)
This appeal followed. In this Court, Claimant does not challenge the WCJ's rejection of her depression claim, the WCJ's finding that she is able to work at light-duty jobs, or the WCJ's finding that Employer met its burden of showing openings for jobs within Claimant's restrictions and abilities. The sole issue argued by Claimant here is whether the collective bargaining agreement made those jobs unavailable to her.
Our review is limited to determining whether an error of law was committed, whether the WCJ's necessary findings of fact are supported by substantial evidence or whether constitutional rights were violated. South Hills Health System v. Workers' Compensation Appeal Board (Kiefer), 806 A.2d 962, 965 n.5 (Pa. Cmwlth. 2002).
A claimant's benefits under the Workers' Compensation Act (the Act) may be modified and reduced from total disability to partial disability where the employer either establishes that it has offered the claimant a specific available job within the claimant's capabilities or proves the claimant's "earning power" through expert opinion that available employment opportunities within the claimant's capabilities exist. Edwards v. Workers' Compensation Appeal Board (MPW Industrial Services, Inc.), 858 A.2d 648, 650-52 (Pa. Cmwlth. 2004); South Hills Health System v. Workers' Compensation Appeal Board (Kiefer), 806 A.2d 962, 966, 969-71 (Pa. Cmwlth. 2002). Section 306(b)(2) of the Act provides:
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
Added by Section 4 of the Act of June 25, 1996, P.L. 350 (Act 57), as amended, 77 P.S. § 512(2).
"Earning power" shall be determined by the work the employe is capable of performing and shall be based upon expert opinion evidence which includes job listings with agencies of the department, private job placement agencies and advertisements in the usual employment area. Disability partial in character shall apply if the employe is able to perform his previous work or can, considering the employe'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.77 P.S. § 512(2) (emphasis added).
To prove the claimant's earning power, the employer must prove that jobs within the claimant's capabilities were available and open at the time of the labor market survey, but is not required to show that the claimant received any job offer. Edwards, 858 A.2d at 652; South Hills Health System, 806 A.2d at 971. "Although the jobs must be available, 'the Act contains no clear indication that a claimant actually receive an offer of employment in order to establish earning power.'" Edwards, 858 A.2d at 652 (quoting South Hills Health System).
Here, the WCJ found that Employer established through credible expert testimony that jobs within Claimant's capabilities were open and available and thereby satisfied its burden under Section 306(b)(2) of the Act. Claimant does not contest any of those findings. Claimant argues only that a job that would result in loss of union benefits is, as a matter of law, unavailable, and that the collective bargaining agreement subjected her to termination of her position with Employer and loss of union benefits if she accepted any of the jobs with other employers because she did not have written permission from Employer to work at those jobs.
Claimant is correct in her assertion that a job that would cause her to lose union benefits would not constitute an available job. Newhouse v. Workers' Compensation Appeal Board (PJ Dick/Trumbull Corp.), 803 A.2d 828, 831 (Pa. Cmwlth. 2002); ABF Freight Systems, Inc. v. Workers' Compensation Appeal Board (Iten), 744 A.2d 348, 351-52 (Pa. Cmwlth. 2000). It was Claimant's burden, however, to show that the jobs identified in the labor market survey would cause her to lose union status or benefits. Newhouse, 803 A.2d at 831. "[A]n offer of a non-union position to a union claimant is unavailable as a matter of law only upon a showing that the acceptance of such an offer would result in a loss of union benefits or status." Newhouse, 803 A.2d at 831.
There was no showing in this case that any of the jobs in Employer's labor market survey would have deprived Claimant of her union status or benefits. The WCJ correctly determined that Claimant was not prohibited by the collective bargaining agreement from seeking outside employment and that the jobs found in the labor market survey would not have caused her to lose her position with Employer. (F.F. ¶11.)
The collective bargaining agreement did not prohibit Claimant from obtaining or working at any of the jobs identified; it merely required that she request and obtain permission from Employer before starting work at an outside job. (Claimant Exhibit 4, Collective Bargaining Agreement, R.R. at 1a; Claimant Exhibit 7, Frishkorn Dep. at 17-20, R.R. at 54a-55a; Employer Exhibit J, Connor Dep. at 8-9, R.R. at 89a-90a.) The collective bargaining agreement provided that Claimant would lose her position and benefits only if she, "without prior permission of the Company, engages in other employment." (Claimant Exhibit 4, Collective Bargaining Agreement, R.R. at 1a.) Both Claimant's and Employer's witnesses agreed that this provision did not require any approval from Employer before Claimant could actively seek and apply for jobs and that permission was required only before starting work after a job offer had been obtained. (Claimant Exhibit 7, Frishkorn Dep. at 17-18, R.R. at 54a-55a; Employer Exhibit J, Connor Dep. at 8-9, R.R. at 89a-90a.)
Moreover, the only reason that Claimant had not received permission to work at the jobs identified by the labor market survey is that she had not met her own obligation under the collective bargaining agreement to request permission to work at those jobs. The collective bargaining agreement required the flight attendant to take the step of requesting permission to work at outside employment. (Claimant Exhibit 4, Collective Bargaining Agreement, R.R. at 1a; Claimant Exhibit 7, Frishkorn Dep. at 18-20, R.R. at 55a; Employer Exhibit J, Connor Dep. at 8, R.R. at 89a.) Claimant admitted that she knew she had to ask for permission before working for another employer and admitted that she never requested permission from Employer to work at any of the jobs from the labor market survey. (June 23, 2008 H.T. at 20, R.R. at 22a; Claimant Exhibit 11, Claimant Dep. at 12, R.R. at 131a.)
The evidence showed that Claimant would have received permission for the jobs on which the WCJ based his finding of earning capacity if she had made a request for permission. The purpose of the collective bargaining agreement's requirement of permission was to enable Employer to ensure that a job taken by a flight attendant on medical leave was within the limitations and restrictions imposed by her treating physician. (Employer Exhibit J, Connor Dep. at 9, R.R. at 90a; Claimant Exhibit 7, Frishkorn Dep. at 16-17, R.R. at 54a.) Permission would be granted if the job was consistent with the flight attendant's limitations from the injury and would not interfere with her recovery. (Claimant Exhibit 4, Collective Bargaining Agreement, R.R. at 1a; Claimant Exhibit 7, Frishkorn Dep. at 16-17, R.R. at 54a; Employer Exhibit J, Connor Dep. at 9, R.R. at 90a.) Employer's representative, found credible by the WCJ, testified that where jobs have been identified by Employer's vocational consultant, that fully satisfies the purpose of the permission requirement and entitles a flight attendant to work at those jobs. (Employer Exhibit J, Connor Dep. at 9-11, R.R. at 90a-92a.)
To the extent that Claimant also contends that the jobs in the labor market survey were unavailable to her because she allegedly would have lost salary continuation benefits, even if the collective bargaining agreement's requirements were satisfied and she did not lose her employment and union status, that argument is not supported by the record. The salary continuation benefit is a supplement to bring an injured flight attendant's income, when she is receiving workers' compensation disability benefits, up to the level of 100% of her pre-injury salary. (Employer Exhibit J, Connor Dep. at 11, R.R. at 92a; June 23, 2008 H.T. at 20, 38, R.R. at 22a, 40a.) The evidence showed that Claimant would remain entitled to and would continue to receive salary continuation benefits to bring her income up to her full salary for the entire 36 months that she was eligible for those benefits as long as she remained employed by Employer and was receiving workers' compensation partial disability benefits. (Employer Exhibit J, Connor Dep. at 11-13, R.R. at 92a-94a; June 23, 2008 H.T. at 20, R.R. at 22a.) --------
Because the collective bargaining agreement did not make the jobs identified by the labor market survey unavailable to Claimant and the WCJ's unchallenged findings establish that Employer satisfied its burden under Section 306(b)(2) of the Act, the order of the Board affirming the WCJ's order granting Employer's Modification Petition is affirmed.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 1st day of June, 2012, the order of the Workers' Compensation Appeal Board in the above matter is affirmed.
/s/_________
JAMES GARDNER COLINS, Senior Judge