Opinion
No. 1169 C.D. 2011
02-01-2012
Lisa Amoriello, Petitioner v. Workers' Compensation Appeal Board (Giant 301), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE PELLEGRINI
This case was reassigned to the opinion writer prior to January 7, 2012, when Judge Pellegrini became President Judge.
Lisa Amoriello (Claimant) appeals from an order of the Workers' Compensation Appeal Board (Board) affirming the decision of the Workers' Compensation Judge (WCJ) granting the modification/suspension petition of Giant Foods (Employer) because Claimant refused a position that was available to her and within her physical capabilities. For the reasons that follow, we affirm the Board's decision.
On May 31, 2008, Claimant was injured during the scope of her employment with Employer while working in the deli department of its Thorndale, Pennsylvania store when she cut her hand suffering a "left hand laceration" which required surgery of her left thumb. Employer issued a notice of compensation payable, and Claimant began receiving benefits. On November 10, 2008, Employer filed a suspension petition alleging that as of August 21, 2008, it offered Claimant her job back in the deli department. Employer subsequently filed a modification/suspension petition on March 13, 2009, alleging that as of February 18, 2009, Claimant had been offered a job in its Thorndale, Pennsylvania store as a greeter. Claimant filed an answer to both petitions denying the allegations.
Employer also filed a termination petition alleging that Claimant had fully recovered from her work injury. That petition is not before the Court for review.
Before the WCJ, Employer presented the deposition testimony of William Kirkpatrick, M.D. (Dr. Kirkpatrick), who evaluated Claimant on December 1, 2008, and determined that Claimant had fully recovered from her work injury. Dr. Kirkpatrick reviewed both job descriptions and believed Claimant could perform either the job in the deli or the job as a greeter. Claimant presented the deposition testimony of her treating physician David Singer, (Dr. Singer), who opined that Claimant had not fully recovered and could only perform her job in the deli with restrictions. He believed a suitable job for Claimant was one that did not require repetitive use of her left hand, and at no time did Dr. Singer take Claimant off work completely or feel she was unable to work. He did not evaluate the greeter position.
Claimant testified that she had returned to the deli position with modifications after she received a job offer from Employer, but due to pain from her injury, she could not continue in the position and stopped working on September 23, 2008. Claimant then explained that she received a letter from Employer dated November 19, 2009, with an attachment (an Exit Questionnaire) indicating that she was fired from employment. A few days later, she received a document from an insurance company called Aliquant, which had provided health insurance to her through Employer, stating that her insurance had been terminated as of September 23, 2008. Claimant said she called Aliquant and asked why her insurance had been cancelled and was told it was because her job had been terminated. It was her understanding at that point that she was no longer an employee of Employer. Claimant then stated that she received a letter from Employer on February 17, 2009, offering her a full-time position as a greeter at the store where she had been previously working. She stated that she did not accept the greeter position because she had been terminated but admitted that she was capable of performing the job. Claimant also testified that there had never been a greeter at the store where she had worked. Claimant admitted that she had desired to work in the daycare area of the store watching children but a position had not been made available to her. Claimant offered the termination letter with attachment from Employer into evidence along with the document from Aliquant.
The November 19, 2009 letter read as follows:
Dear Lisa:
We value your feedback as it will enable us to assess our work environment and improve our policies and employment practices. Our goal is to continue to make Giant/Martin's/AFS the employer of choice and a great place to work.
Please take a few minutes to complete the attached Exit Questionnaire regarding your employment experience with Giant/Martin's/AFS.
As a token of our appreciation for completing the Exit Questionnaire, you will automatically be entered to win a $300.00 cash award (see Official contest Rules on reverse side of this letter).
You have our assurance that the information you provide will in no way affect your employment record at Giant/Martin's/AFS.
Thank you for your attention to this request and best wishes in all your future endeavors.
Pamela Graeff (Graeff), Employer's claim's supervisor, testified that she was in charge of returning claimants to work and aided in returning Claimant to her modified job in the deli after her injury. Graeff testified that she subsequently sent Claimant a letter dated February 17, 2009, offering her a position as a greeter where she would sit at the front of the store and greet customers as they came in as well as give them assistance in locating products. Additionally, she would hand out bonus-buy flyers to customers. The position would pay the same wages she previously had made in the deli. She stated that the position was performed at numerous Giant Food stores, although it was not always filled at every store, and she was not sure how many greeters had ever been used at the particular store where the job offer was made to Claimant. Graeff stated that it was within all of Claimant's physical restrictions set forth by Dr. Singer. Regarding the notice Claimant stated that she received from Aliquant that her health care benefits had been terminated, Graeff explained that when an individual was out on workers' compensation disability for 180 days or longer, it was Employer's company policy that the medical benefits were automatically terminated; however, once they returned to work, the benefits would be reinstated.
Karen Weimer, the Customer Operations Manager at the store where Claimant worked, testified that while this store did not have a greeter position, other Employer's stores did have such a position.
Because the WCJ found that Claimant was not fully recovered and not capable of performing her job in the deli even with restrictions, he denied the suspension petition but found that Claimant was capable of performing the greeter position, which she admitted she could perform but decided not to accept. Because Claimant had not provided a viable defense for refusing the greeter position, the WCJ granted Employer's March 13, 2009 modification/suspension petition.
In her appeal to the Board from the WCJ's decision, Claimant alleged that the WCJ erred by 1) granting the employer's suspension/modification petition and finding that Employer offered Claimant an "actually available" position when Employer did not utilize greeters and had previously terminated Claimant's employment; 2) failing to render necessary findings of facts as to whether Employer acted in bad faith in offering Claimant the greeter position, and 3) failing to summarize the testimony of each of the witnesses and rendering a well-reasoned decision. The Board determined that because Claimant acknowledged that she could perform the greeter position and stipulated the position had been offered to her and she did not accept it, the WCJ was not required to summarize all of the other evidence on those issues. Daniels v. Workers' Compensation Appeal Board (Tristate Transport), 574 Pa. 61, 828 A.2d 1043 (2003). Further, because Claimant acknowledged that she refused the position, no explicit finding of bad faith on the part of Claimant was required before concluding that a suspension was appropriate. Presby Homes and Services v. Workers' Compensation appeal Board (Quiah), 982 A.2d 1261 (Pa. Cmwlth. 2009). Finally, the Board determined in light of Quiah that there was no indication that Claimant's alleged discharge from her employment would affect whether the WCJ was required to make a finding as to whether Claimant responded in good faith to the position once it was offered. Because the WCJ concluded that the position was actually available to Claimant, good faith on the part of Employer was implied. Quiah. This appeal by Claimant followed.
Our scope of review of the Board's decision is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether constitutional rights were violated or whether an error of law was committed. Repash v. Workers' Compensation Appeal Board (City of Philadelphia), 961 A.2d 227 (Pa. Cmwlth. 2008).
On appeal, not claiming that she could not perform the proffered position, Claimant contends that the WCJ erred in finding that the greeter position was suitable alternative employment because it was not productive employment as the store had never had a greeter before. Claimant also contends that she had good reason not to accept the position because she had been terminated prior to the job offer.
For an offered position to be suitable alternative employment, the following must be met: (1) employer who seeks to modify claimant's benefits on the basis that he has recovered some or all of his ability must produce medical evidence of a change in claimant's condition; (2) employer must produce evidence of a referral to a then-open job which fits in the occupational category for which claimant has been given clearance; (3) claimant must demonstrate that he in good faith followed through on the referral; and (4) if referral fails to result in a job, then claimant's benefits should continue. Kachinski. v. Workmen's Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987). The employer must prove that the proffered job is "actually available" to the claimant. Brown v. Workmen's Compensation Appeal Board (Cooper Jarrett, Inc.), 616 A.2d 121, 123-124 (Pa. Cmwlth. 1992). In Dilkus v. Workmen's Compensation Appeal Board (John F. Martin & Sons), 543 Pa. 392, 398, 671 A.2d 1135, 1138 (1996), quoting Kachinski, "a position may be found to be actually available, or within the claimant's reach, only if it can be performed by the claimant, having regard to his physical restrictions, and limitations, his age, his intellectual capacity, his education, his previous work experience, and other relevant considerations, such as his place of residence."
As to her first argument that the greeter position was not suitable alternative employment because that position did not exist prior to being offered to her, while it is true that it was a new position at the store at which she worked, the job classification of "greeter" was not a newly created job category because Graeff testified that the position was utilized at many of Employer's other stores. Nonetheless, even if the greeter position was a new job category, employers can make "specially created positions" available to injured workers that are specifically designed to meet their restrictions so that they can return to work. Quiah; Ryan v. Workmen's Compensation Appeal Board (Port Erie Plastics), 639 A.2d 866 (Pa. Cmwlth. 1994) (holding that although a "no duty" position was irregular, it was still "available.") See also Crisman v. Workmen's Compensation Appeal Board (Cytemp Specialty Steel), 740 A.2d 767, 769 (Pa. Cmwlth. 1999). Claimant acknowledged that she could perform the greeter position, that it was within her physical capabilities, and that it had been offered to her but she refused to accept the position, and she presented no evidence that it was a position created just so that she would refuse to accept. Consequently, Claimant's argument that the job was not suitable alternative employment is without merit.
Claimant also contends that she does not have to take the greeter position because she had been terminated prior to receiving the offer for that position. She also contends that because the WCJ did not make findings as to whether she had been terminated, the WCJ did not issue a reasoned decision. However, no such finding was necessary because whether Claimant had been terminated is irrelevant because she is under an obligation to accept all suitable alternative employment, regardless that she had been let go from her pre-injury job, from her previous employer just as she would be required to do if the position had been offered by a new employer.
Claimant also contends that the WCJ did not issue a reasoned decision for several other reasons. First, she contends that the WCJ was required to find that the greeter position constituted an offer of productive employment. To constitute a reasoned decision within the meaning of Section 422(a) of the Pennsylvania Workers' Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §1-1014.4, 2501-2708, 77 P.S. §834, a WCJ's decision must permit adequate appellate review. Green v. Workers' Compensation Appeal Board (US Airways), 28 A.3d 936 (Pa. Cmwlth. 2011). In Finding of Fact 6, the WCJ stated "The argument that the position was not actually available in that it had never been performed at the particular store where Claimant was employed is not found to be a meritorious defense. In this connection, the testimony of Employer's witnesses, . . ., are found credible other stores employed a Greeter, and the store at which Claimant worked could fill that position." Because Claimant only argued that the greeter position was not a productive position because her store previously did not have a greeter position, that finding sufficiently addressed the issue. Second, Claimant argues that the decision was not reasoned because the WCJ did not summarize the testimony of all the witnesses but merely attached to his decision a summary prepared by Employer's counsel. Because Claimant acknowledged that she could perform the greeter position and it had been offered to her but she refused to accept the position, whether the WCJ set forth summaries of all of the witnesses who testified or attached Employer's counsel's summary does not go to whether the decision was reasoned, especially when Claimant does not argue that those summaries are inaccurate. --------
Because a greeter job was being offered to Claimant, that it fit within Claimant's physical restrictions and that it paid her time-of-injury wages, there was no proof that the job was not "suitable alternative employment," and Claimant did not establish a good faith reason not to accept that employment, the WCJ properly suspended benefits.
Accordingly, the order of the Board is affirmed.
/s/_________
DAN PELLEGRINI, JUDGE ORDER
AND NOW, this 1st day of February, 2012, the order of the Workers' Compensation Appeal Board, dated May 27, 2011, at No. A10-0876, is affirmed.
/s/_________
DAN PELLEGRINI, JUDGE
(Original Record, Exhibit C-1.)