Opinion
No. 1363 C.D. 2011
01-27-2012
Allan Bowman, Petitioner v. Workers' Compensation Appeal Board (Hitachi Metal Automotive and Zurich Insurance Company), Respondents
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge
This case was assigned to the opinion writer before January 7, 2012, when Judge Pellegrini became President Judge.
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In this workers' compensation appeal, Allan Bowman (Claimant) petitions for review of a Workers' Compensation Appeal Board (Board) determination that granted him benefits limited to two closed periods. Claimant asks whether the Board erred in only partially granting his claim petition by limiting his benefits to two closed periods separated by approximately a two week suspension. Claimant contends the Board erred in determining his loss of earnings during the time outside of the closed periods was caused by his bad faith conduct rather than by his work injury. Upon review, we affirm in part, and reverse in part.
I. Factual Background
Prior to his injury, Claimant worked for Hitachi Metal Automotive (Employer) on an assembly line. In April 2008, Claimant sustained an injury to his right wrist and thumb caused by the repetitive movements of his job. Claimant reported his injury to Employer, and he sought treatment from both his family physician and Employer's panel medical providers (Panel Providers). The Panel Providers and Claimant's family physician determined Claimant suffered from deQuervain's tenosynovitis.
As a result of his injury, the Panel Providers initially ordered Claimant to stop working for approximately a month to allow his wrist to heal. Thereafter, the Panel Providers released Claimant to perform light duty work consistent with set medical restrictions. At that time, Employer attempted to provide Claimant with a suitable light duty position. Specifically, the offered light duty work involved: wiping down machines, picking up cardboard and cigarette butts, and general cleaning. Employer instructed Claimant to perform all of these tasks with only his left hand in order to accommodate his medical restrictions. Claimant returned to work and attempted his new position.
Upon attempting this light duty job, however, Claimant complained to Employer that the work caused severe pain and swelling in his right hand. After three days of attempting to return to work, Claimant made an appointment with an orthopedic surgeon, Dr. Donald D. Golobek (Claimant's Orthopedist). Additionally, at that point, Claimant stopped reporting to work. During the next two weeks, Claimant called Employer on most days to report his absences, but he only provided Employer with a written doctor's excuse for one of the days.
After two weeks, Employer warned Claimant that his absences were excessive and any future refusal to perform his assigned light duty work would be construed as insubordination. At that time, Claimant refused to work and explained that if he attempted the light duty work again his hand would swell and likely cause him to go to the emergency room for treatment. Therefore, because Claimant declined to return to his light duty job, Employer terminated Claimant's employment.
That same day, Claimant saw his Orthopedist as previously scheduled. After an examination, Claimant's Orthopedist determined Claimant was totally disabled and completely restricted him from working. Shortly thereafter, Claimant's Orthopedist performed surgery on Claimant's wrist to alleviate his injury. As a result of the surgery, Claimant was physically capable of returning to his former light duty position.
II. Procedural History
Claimant initiated his action by filing a claim petition the day of his injury. In response, Employer filed an answer denying the allegations and alternatively asserting that Claimant rejected the offered light duty work in bad faith. Additionally, Employer issued a notice of denial. Eventually, a year into the litigation, Employer issued a notice of compensation payable (NCP) accepting liability for Claimant's medical bills.
After several hearings, the Workers' Compensation Judge (WCJ) closed the record, in May 2009. Thereafter, the WCJ issued his decision granting Claimant's claim petition and determining Employer engaged in a reasonable contest. The parties filed cross-appeals.
On appeal, the Board determined that the WCJ did not issue a reasoned decision, and remanded the matter. Additionally, the Board directed the WCJ to determine whether under Virgo v. Workers' Compensation Appeal Board (County of Lehigh - Cedarbrook), 890 A.2d 13 (Pa. Cmwlth. 2005), Claimant's absenteeism constituted bad faith. The Board further instructed the WCJ to only consider whether Claimant presented sufficient medical evidence that he was incapable of doing the light duty work in determining if Claimant acted in good faith. Specifically, the Board directed that if Claimant did not present credible medical evidence that he was incapable of performing the offered work, then the WCJ was to conclude Claimant's bad faith conduct caused his loss in earnings and to suspend benefits accordingly.
In August 2010, the WCJ issued his remand decision. The WCJ determined Claimant was eligible for benefits from his time of injury in April 2008 until Employer terminated his employment in May 2008, and from the time he was determined to be totally disabled by Claimant's Orthopedist in June 2008 until he partially recovered in October 2008. These two closed periods were separated by approximately two weeks, during which Claimant was capable of light duty work, but was terminated for his absenteeism. The WCJ also granted Claimant a penalty award of 10% on past-due medical expenses for Employer's untimely filing of an NCP. Claimant appealed, contending the imposition of a suspension of benefits was improper.
On appeal, the Board affirmed. Specifically, the Board determined substantial evidence supported the findings that Claimant could work during the period of suspension, but he did not report to work in bad faith. Claimant appeals.
Our review of a workers' compensation appeal is limited to determining whether an error of law was committed, constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. See Minicozzi v. Workers' Comp. Appeal Bd. (Indus. Metal Plating, Inc.),873 A.2d 25 (Pa. Cmwlth. 2005).
III. Issues
Claimant primarily contends the Board erred in concluding Employer terminated his employment for bad faith conduct pursuant to the Workers' Compensation Act. Additionally, Claimant argues the Board erred in determining he was capable of performing light duty work to the extent it based its determination on testimony the WCJ expressly discredited.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
In response, Employer argues consistent with Walk v. Workmen's Compensation Appeal Board (U.S. Air, Inc.), 659 A.2d 645 (Pa. Cmwlth. 1995) and State Workmen's Insurance Fund v. Workmen's Compensation Appeal Board (Hoover), 680 A.2d 40 (Pa. Cmwlth. 1996), the Board did not err in requiring Claimant to submit medical evidence to support his contention that he could not perform the offered light duty work. Additionally, Employer agrees the Board erred in referencing discredited testimony in its decision; however, Employer contends the error was harmless.
IV. Discussion
When litigating a claim petition, the claimant bears the initial burden to establish a right to compensation. Second Breath v. Workers' Comp. Appeal Bd. (Gurski), 799 A.2d 892 (Pa. Cmwlth. 2002). A WCJ, in considering a claim petition, may render a decision ordering closed periods, which incorporate aspects of a modification, suspension, or termination without the parties filing separate petitions for such relief. Vista Int'l Hotel v. Workmen's Comp. Appeal Bd. (Daniels), 560 Pa. 12, 742 A.2d 649 (1999) (citing Conner v. Workmen's Comp. Appeal Bd. (Super Sucker, Inc.), 624 A.2d 757 (Pa. Cmwlth. 1993)); Milner v. Workers' Comp. Appeal Bd. (Main Line Endoscopy Ctr.), 995 A.2d 492 (Pa. Cmwlth. 2011).
While the burden is initially on the claimant to establish a right to compensation, where an employer alleges the claimant's loss of earnings during a period of otherwise compensable time is the result of a post-injury termination the burden shifts to the employer. Greene v. Workers' Comp. Appeal Bd. (Hussy Copper, Ltd.), 783 A.2d 883 (Pa. Cmwlth. 2001). In this scenario, the employer must establish it offered the claimant suitable work and such work remained available until the employer discharged the claimant for a lack of good faith. Vista Int'l Hotel. The claimant may then offer rebuttal evidence to establish he acted in good faith. Id.
In this context, a lack of good faith, i.e., bad faith, is a less strict standard than the willful misconduct standard used pursuant to the Unemployment Compensation Law (UC Law). Virgo; Cryder v. Workers' Comp. Appeal Bd. (Nat'l City), 828 A.2d 1155 (Pa. Cmwlth. 2003) (where an employer makes out a claim of willful misconduct, bad faith is sufficiently established); Pappans Family Rest. v. Workers' Comp. Appeal Bd. (Ganoe), 729 A.2d 661 (Pa. Cmwlth. 1999). This Court recently summarized the applicable standard as follows:
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§751-914.
Simply put, to make out 'bad faith' or 'fault on the part of a discharged claimant,' if an employer only shows that he or she 'would [return to work] if he or she could' then 'bad faith' is not shown and benefits should continue or be reinstated; but if an employer establishes that the claimant 'could [return to work] if he or she would, and didn't,' 'bad faith' is established and a claimant is not entitled to continuing benefits.Virgo, 890 A.2d at 14 .
We first consider Claimant's burden. Here, based on substantial record evidence, the WCJ determined Claimant sustained a work-related injury in April 2008, and such injury resulted in a disability. WCJ Op., 8/11/2010, Findings of Fact (F.F.) Nos. 11, 16, 55, 56. Furthermore, the WCJ credited Claimant's Orthopedist's opinion that Claimant has not fully recovered from his disability, but could perform light duty work if available. F.F. Nos. 59, 60. Thus, the Board properly concluded Claimant established the elements necessary to support an award of compensation.
We next consider Employer's burden. We must decide whether Employer carried its burden to establish Claimant's loss of earnings during the period of suspension was caused not by his work injury, but rather by his bad faith conduct. Thus, we decide whether Employer terminated Claimant's employment for Claimant's bad faith conduct, or whether Claimant had a good faith reason for his absenteeism.
Employer argues the Board correctly required Claimant to present medical evidence to establish he was incapable of performing light duty work. Employer cites Walk and State Workmen's Insurance Fund to support the proposition that an employee must submit credible medical evidence to establish a good faith reason for not performing an offered modified duty position.
Upon review, neither case required the claimant to submit medical testimony to establish their conduct was in good faith. See Walk; State Workmen's Insurance Fund; see also Vipond & Vipond v. Workmen's Comp. Appeal Bd. (McKowan), 611 A.2d 368 (Pa. Cmwlth. 1992) (not requiring medical evidence to establish good faith). Rather, this Court affirmed that neither claimant was entitled to benefits because neither presented credible evidence to establish they acted in good faith. See generally Bufford v. Workers' Comp. Appeal Bd., 606 Pa. 621, 2 A.3d 548 (2010) (medical evidence can refute the suitability of a referral, but it is not required).
Additionally, this Court recently addressed this issue in Shop Vac Corporation v. Workers' Compensation Appeal Board (Thomas), 929 A.2d 1236 (Pa. Cmwlth. 2007). There, we considered whether a claimant's excessive absenteeism stemming from the claimant's debilitating pain was justifiable, and therefore not in bad faith. In Shop Vac, the claimant returned to work after sustaining a disabling work injury. Within about four months of returning to work, the employer discharged the claimant for excessive absenteeism. Before a WCJ, the employer argued it terminated the claimant's employment because of her excessive absenteeism, in other words, for her bad faith conduct. The claimant, however, explained her absenteeism was not in bad faith, but rather was reasonable in light of the bouts of pain caused by her work injury. Claimant did not submit medical testimony to support her claims of pain during her period of light duty work.
This Court compared the facts in Shop Vac to those found in claims for unemployment benefits in which a claimant contends he had good cause for his absenteeism. See Sprague v. Unemployment Bd. of Review, 647 A.2d 675 (Pa. Cmwlth. 1994) (illness constitutes good cause). Additionally, this Court analogized that just "[a]s an illness can be a good cause defense to a charge of willful misconduct due to excessive absenteeism, McKeesport Hospital[ v. Unemployment Compensation Board of Review, 625 A.2d 112 (Pa. Cmwlth. 1993)], we see no reason why debilitating pain from a work-related injury cannot serve as good cause as well." Shop Vac, 929 A.2d at 1241-42. Thus, since the claimant established her absenteeism was caused by her debilitating pain, she established good cause for her absences, and as such, her actions were reasonable and not in bad faith. Therefore, the claimant's benefits were reinstated because the claimant's work injury, not her bad faith conduct, caused her loss in earnings.
Here, the WCJ credited testimony that Claimant's conduct constituted excessive absenteeism. Id. This Court recognizes that excessive absenteeism is willful misconduct if it is without good cause. Steth, Inc. v. Unemployment Comp. Bd. of Review, 742 A.2d 251 (Pa. Cmwlth. 1999); McKeesport Hosp. Therefore, benefits must be denied unless Claimant can establish he had good cause for his absenteeism. Shop Vac (citing McKeesport Hosp.).
Before the WCJ, Claimant justified his excessive absenteeism claiming he attempted to do the assigned light duty work but was unable to do so because it caused severe pain and swelling in his right hand. In considering Claimant's argument, the Board (at that time without our guidance in Shop Vac) erred in instructing the WCJ to limit his determination of bad faith to whether Claimant provided credible medical evidence to support the cause for his absences.
Consistent with our holding in Shop Vac, medical testimony is not necessary to show Claimant acted in good faith. Rather, the determination of good faith is more similar to a finding of good cause under the UC Law than to an initial determination of a compensable injury. See Second Breath; Greene. Having established his work-related disability through competent medical evidence, Claimant could establish his motivation to refrain from continuing modified work through his own testimony. See Scalise Industries v. Workers' Comp. Appeal Bd. (Centra), 797 A.2d 399 (Pa. Cmwlth. 2002) (finding no authority to support a special requirement that a physician testify that he recommended retirement or that disability caused the claimant to retire; a disabled claimant may establish through his own testimony his motivation to retire). Of course, Claimant's testimony is subject to the WCJ's evaluation for credibility. See Capasso v. Workers' Comp. Appeal Bd. (RACS Associates, Inc.), 851 A.2d 997 (Pa. Cmwlth. 2004). In sum, while medical evidence is relevant as to a state of mind inquiry, it is not a sine qua non element in an analysis of good faith of a disabled claimant's attempts to continue modified work. The Board erred when it ruled otherwise.
Nevertheless, the WCJ made sufficient findings relevant to the proper inquiry. Specifically, the WCJ credited Claimant's testimony that he attempted to do his light duty job, and that it caused pain and swelling. F.F. No. 55. Additionally, the WCJ determined Claimant's complaints were legitimate. F.F. No. 68. Cf. State Workmen's Insurance Fund (holding the claimant's level of pain was subjective, not credible, and not a good faith reason to refuse work). Furthermore, the WCJ credited testimony that Claimant complained of pain and swelling, and presented a medical note confirming his inability to do the assigned work and his need to be off work. F.F. Nos. 64-65. Therefore, Claimant's absenteeism was reasonable and justified under the circumstances, and thus, did not constitute bad faith. See Shop Vac.
The WCJ determined the reason Employer terminated Claimant's employment was for "failing to report to work despite the then applicable restrictions of the [Panel Providers]." WCJ Op., 8/11/2010, F.F. No. 62. Therefore, our review is limited to whether or not Claimant's reason for his absenteeism constituted good cause, as the question of whether Claimant violated Employer's work rules in reporting his absences was not the basis for Claimant's termination and not subject to this appeal. See Shop Vac Corp. v. Workers' Comp. Appeal Bd.(Thomas), 929 A.2d 1236 (Pa. Cmwlth. 2007).
In sum, the WCJ credited the testimony that Claimant would work if he could, but could not work due to the pain he experienced attempting the offered light duty position. See Virgo. Therefore, Claimant's excessive absenteeism was not in bad faith, and Employer's termination of Claimant's employment did not justify the suspension of Claimant's benefits. See Shop Vac.
V. Conclusion
Upon review, Employer terminated Claimant's employment as a result of no fault of his own. Moreover, Claimant has a disability resulting from his work injury that impacts his ability to work; therefore, he is entitled to total disability benefits from the time of injury. Additionally, contrary to the Board's determination, Claimant's former light duty position was not available to him at the time of his partial recovery because Employer terminated Claimant without Claimant engaging in bad faith conduct. Therefore, an award of total disability benefits must stand, unless or until, Employer establishes the availably of suitable work or a change in Claimant's medical condition.
We agree with Claimant's contention that the Board erred in considering the testimony that Claimant did yard work during the period he claimed he could not do light duty work. The Board may disregard a WCJ's findings of fact only where no substantial competent evidence exists to sustain the WCJ's necessary findings. Universal Cyclops Steel Corp. v. Workmen's Comp. Appeal Bd. (Krawczynski), 305 A.2d 757 (Pa. Cmwlth. 1973).
Here, the WCJ determined Claimant did not use a weedwhacker (the alleged yard work) while he was restricted to light duty based on witness credibility. F.F. No. 52. Therefore, the Board erred in disregarding the WCJ's finding based on the WCJ's credibly determination between two conflicting witnesses and substituting its own judgment. Butler v. Workmen's Comp. Appeal Bd. (Commercial Laundry, Inc.), 447 A.2d 683 (Pa. Cmwlth. 1982) (the WCJ's credibility determinations are conclusive where the board does not take evidence). However, upon review, the Board's error does not require a different result. The error was harmless as to the Board's ultimate determination, and it is irrelevant to our analysis.
Accordingly, we affirm in part and reverse in part.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 27th day of January, 2012, the order of the Workers' Compensation Appeal Board is AFFIRMED in part, and REVERSED in part.
/s/_________
ROBERT SIMPSON, Judge