Opinion
No. 1359 C.D. 2014
07-09-2015
Kurt Brasch, Petitioner v. Workers' Compensation Appeal Board (Jackson Mattress), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Kurt Brasch (Claimant) petitions for review of the order of the Workers' Compensation Appeal Board (Board) that affirmed the decision of the Workers' Compensation Judge (WCJ) granting Claimant's claim petition in part and suspending his benefits as of his separation from employment with Jackson Mattress Company (Employer). Claimant argues that the WCJ's decision cannot constitute a reasoned decision under Section 422(a) of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 834, because the WCJ relied on the deposition testimony of Employer's witness taken by telephone, not her live testimony. We affirm.
Claimant was employed by Employer as a territory manager, selling mattresses and mattress products to retail stores. In October 2010, Claimant filed a claim petition, alleging that he sustained a work-related injury to his neck, head, back and right shoulder on June 8, 2009 in a motor vehicle accident.
Claimant testified that he missed work for a month after the injury but continued to receive paychecks. He returned to his regular job in July 2009, earning his pre-injury wages. He testified that Employer released him from work in October 2009 because he was no longer able to perform his job due to the work injury. He acknowledged that Employer told him that he was no longer needed because it was consolidating its business territories and downsizing. He thereafter worked as a territory manager for another employer until August 2010 and then worked for YMCA and PA Bedding. He testified that he was experiencing neck pain and could not perform his pre-injury job duties.
Claimant presented the deposition testimony of his treating physician, Michael Cavanaugh, M.D., a board-certified orthopedic surgeon. Dr. Cavanaugh's initial diagnosis of Claimant in June 2009 was cervical strain or sprain. An MRI performed in January 2011 showed evidence of a disc herniation at C6-7. An EMG showed no evidence of cervical radiculopathy. Dr. Cavanaugh found that as of April 1, 2010, Claimant had a full cervical mobility and tenderness in the trapezius area. Dr. Cavanaugh opined that Claimant's pain and herniated disc were causally related to the injury sustained in the June 2009 accident and that Claimant could work in a sedentary to light-duty position and would have no problem driving on a periodic basis.
In opposition to the claim petition, Employer presented the deposition testimony of Peter Feinstein, M.D., a board-certified orthopedic surgeon, who examined Claimant on November 12, 2010. Dr. Feinstein found no objective muscle spasm which would confirm Claimant's subjective complaint of muscular discomfort on the right side of his neck and shoulder area. Claimant had a full range of motion of the neck, and his motor power in upper extremities was intact. Dr. Feinstein felt that Claimant sustained a sprain/strain or whiplash in the neck and upper back in the June 2009 accident. He stated that some degenerative changes at C6-7 shown in the MRI were contributing to Claimant's symptoms. He opined that Claimant fully recovered from the June 2009 injury and could return to work without any restrictions.
Employer also presented the deposition testimony of Laurie Tokarz, the executive vice president of Alliance Sleep Products which operated Employer, taken by telephone. Claimant directly reported to Tokarz during his employment with Employer. Tokarz testified that after Claimant returned to work in July 2009, she spoke with him two to four times a week via telephone and also communicated with him via e-mail. She did not recall Claimant complaining about having difficulty performing the job due to the injury. Tokarz testified:
Q. And when you said he was terminated in October of 2009, could you explain the reasons for his termination?Tokarz's Deposition at 5-6; Certified Record, Exhibit D-2.
A. We had another associate that was travelling in parts of that same region and the economy was not rebounding like we hoped and so, we consolidated our sales team and chose the gentleman that had more experience.
Q. And that was the other gentleman that was hired?
A. Yes.
Tokarz further testified that she told Claimant: "[B]ased upon the economic conditions that we could no longer afford [to] keep both associates on our payroll and that we were consolidating and the other gentleman was going to be covering that area." Id. at 6. She disagreed with Claimant's testimony that he was discharged because his sales numbers were sliding. She testified: "I did not tell him that he was being terminated based upon his performance or his inability to perform his duties. I told him it was due to consolidation." Id. at 7-8. She denied that Claimant's missing work to attend doctor's appointments was factored into the decision to lay him off. Employer paid Claimant severance pay.
The WCJ accepted as credible Claimant's testimony that he continued to have symptoms related to the work injury. The WCJ rejected as not credible his testimony that Employer terminated his employment because of his poor work performance following the work injury. The WCJ accepted Dr. Cavanaugh's testimony to the extent that he testified that Claimant had some loss of cervical motion and complaints of tenderness in the cervical/trapezius area and that Claimant's pain was triggered by his preexisting degenerative disease that was previously asymptomatic. The WCJ rejected Dr. Feinstein's testimony that Claimant fully recovered from the work injury. The WCJ accepted Tokarz's testimony as credible and found that Employer eliminated Claimant's territory manager position for economic reasons, not because of his work injury.
The WCJ concluded that Claimant established that he sustained a work-related cervical strain/sprain and aggravation of his preexisting cervical degenerative changes. The WCJ further concluded, however, that Claimant was not entitled to receive indemnity benefits because he continued to earn his pre-injury wages after the work injury until he was separated from employment in October 2009 for economic reasons. The WCJ accordingly granted Claimant's claim petition in part and suspended his benefits as of his separation from employment. The Board affirmed. Claimant's appeal to this Court followed.
The appellate role in a workers' compensation case is not to reweigh the evidence or the credibility of the witness, but to simply 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), 612 A.2d 434, 437 (Pa. 1992). It is irrelevant whether the record contains some evidence supporting findings other than those made by the WCJ. Burrell v. Workers' Comp. Appeal Bd. (Phila. Gas Works), 849 A.2d 1282, 1288 (Pa. Cmwlth. 2004). We must review the evidence in a light most favorable to the party who prevailed before the WCJ. Anderson v. Workers' Comp. Appeal Bd. (F.O. Transp.), 111 A.3d 238, 244 n.3 (Pa. Cmwlth. 2015).
In a claim petition proceeding, a claimant has the burden of proving all of the elements required for an award of workers' compensation benefits. Inglis House v. Workmen's Comp. Appeal Bd. (Reedy), 634 A.2d 592, 595 (Pa. 1993). The claimant must prove, inter alia, that he or she has suffered a disability, i.e., a loss of earning power, caused by the work-related injury. Furnari v. Workers' Comp. Appeal Bd. (Temple Inland), 90 A.3d 53, 59 (Pa. Cmwlth. 2014). An employee, whose earning power is no longer affected by a work-related injury, is not entitled to partial disability even if his or her present wages are less than the pre-injury wages. Harle v. Workmen's Comp. Appeal Bd. (Tel. Press, Inc.), 658 A.2d 766, 768 (Pa. 1995); Donahay v. Workers' Comp. Appeal Bd. (Skills of Cent. PA, Inc.), 109 A.3d 787, 793 (Pa. Cmwlth. 2015).
The WCJ accepted the testimony of Claimant and Dr. Cavanaugh in part and found that Claimant sustained a work-related injury. The WCJ further found, and Claimant does not dispute, that Claimant continued to receive the pre-injury wages after the work injury until his separation from employment in October 2009. The WCJ also accepted Tokarz's testimony as credible and found that Claimant's separation from employment was for economic reasons, not due to the work injury.
In a workers' compensation case, credibility determinations and the evaluation of evidentiary weight are the province of the WCJ, who may accept or reject the testimony of any witness. Clear Channel Broad, v. Workers' Comp. Appeal Bd. (Perry), 938 A.2d 1150, 1156 (Pa. Cmwlth. 2007). Because the WCJ's findings that Claimant sustained a work injury but did not suffer a loss of earnings and that his separation from employment was not due to the work injury are based on the credibility determinations, those findings may not be disturbed on appeal. Leca v. Workers' Comp. Appeal Bd. (Phila. Sch. Dist.), 39 A.3d 631, 634 n.2 (Pa. Cmwlth. 2012). Where, as here, the claimant has residual physical impairments from the work injury which do not manifest itself in any disability, i.e., a loss of earning power, the appropriate remedy is a suspension of benefits. Harle, 658 A.2d at 770; Ruth Family Med. Ctr. v. Workers' Comp. Appeal Bd. (Steinhouse), 718 A.2d 397, 403 (Pa. Cmwlth. 1998). Hence, the WCJ properly suspended Claimant's benefits based on her finding that Claimant did not suffer a loss of earnings caused by the work injury.
Claimant argues that the WCJ's decision was not a reasoned decision under Section 422(a) of the Act because the WCJ relied on Tokarz's deposition testimony taken by telephone, not her live testimony.
The regulations at 34 Pa. Code § 131.62(a) provide that "[t]he oral deposition of a witness other than a party may be taken and, if taken, may be used only as evidence at hearings." A deposition may be taken "by telephone or other electronic means upon agreement of counsel of record and unrepresented parties or, upon motion, as directed by the judge." 34 Pa. Code § 131.62(c). The party scheduling an oral deposition must serve notice upon each witness to be deposed, counsel of record, unrepresented parties and the WCJ at least 20 days prior to the scheduled deposition. 34 Pa. Code § 131.64(a) and (c). A party or witness may object to the oral deposition by serving a written notice upon the party who has scheduled the deposition, counsel of record, unrepresented parties and the WCJ within 10 days prior to the scheduled deposition. 34 Pa. Code § 131.65(a). The filing of an objection stays the scheduled deposition until it is ordered to be held by the WCJ. Id.
An oral deposition of a party may be taken only upon approval of the WCJ. 34 Pa. Code § 131.62(b). --------
Claimant does not dispute Employer's assertions that Employer informed his counsel and the WCJ of the scheduled deposition of Tokarz by telephone, and that his counsel did not object to and agreed to move forward with the scheduled deposition. Claimant's counsel did participate in the deposition of Tokarz by telephone without objection. Because Tokarz's deposition was taken in compliance with the regulations, the WCJ properly considered her testimony in deciding the claim petition.
Further, the WCJ's decision complied with Section 422(a) of the Act, which provides in relevant part:
All parties to an adjudicatory proceeding are entitled to a reasoned decision containing findings of fact and conclusions of law based upon the evidence as a whole which clearly and concisely states and explains the rationale for the decisions so that all can determine why and how a particular result was reached. The [WCJ] shall specify the evidence upon which the [WCJ] relies and state the reasons for accepting it in conformity with this section. When faced with conflicting evidence, the [WCJ] must adequately explain the reasons for rejecting or discrediting competent evidence. ... The adjudication shall provide the basis for meaningful appellate review.
A decision is "reasoned" under Section 422(a) of the Act if it does not require further elucidation and provides a basis for meaningful appellate review. Daniels v. Workers' Comp. Appeal Bd. (Tristate Transp.), 828 A.2d 1043, 1052 (Pa. 2003). If the WCJ did not actually observe the witnesses' demeanor, the WCJ must provide "some articulation" of the objective basis for the credibility determinations. Id. at 1053. A WCJ renders a reasoned decision if he or she summarizes the witnesses' testimony and adequately explains the credibility determinations. Amandeo v. Workers' Comp. Appeal Bd. (Conagra Foods), 37 A.3d 72, 76 (Pa. Cmwlth. 2012); Clear Channel, 938 A.2d at 1157.
In this matter, the WCJ thoroughly summarized each witness' testimony and adequately explained her credibility determinations. In accepting Tokarz's deposition testimony as credible, the WCJ stated:
The testimony of Laurie Tokarz is credible. Her testimony is credible that, between July and October 2009, Claimant did not tell her he was having difficulty performing his job. Her testimony is credible that Claimant's position was terminated in October 2009 for economic reasons and not because of the work injury. In so finding, this Judge notes that her testimony is consistent with Claimant's testimony regarding what he was actually told were the reasons for his termination.WCJ's Finding of Fact No. 12. The WCJ's explanation of her credibility determinations of Tokarz's testimony was adequate, and her decision provided the objective basis for our appellate review.
Accordingly, the Board's order is affirmed.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 9th day of July, 2015, the order of the Workers' Compensation Appeal Board in the above-captioned matter is AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge