Opinion
No. 100 C.D. 2011
01-08-2015
City of Pittsburgh and UPMC Benefit Management Services, Inc., Petitioners v. Workers' Compensation Appeal Board (Marinack), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
The City of Pittsburgh (Employer) petitions for review of that portion of the adjudication of the Workers' Compensation Appeal Board (Board) that reversed the decision of the Workers' Compensation Judge (WCJ) to suspend the disability compensation of Kenneth Marinack (Claimant). The WCJ found that Claimant was "retired from his job with Employer and, thus, he bore the burden to prove his work injury had forced him out of the entire labor market in order for his disability compensation to continue after his retirement. The Board concluded, however, that it was Employer's burden to prove that Claimant intended to withdraw from the workforce, and it did not carry this burden. In light of the Pennsylvania Supreme Court's recent clarification of the law in this area, we vacate and remand.
Employer also filed a termination petition with respect to the psychological component of Claimant's work injury, which the Workers' Compensation Judge (WCJ) granted after finding Claimant had fully recovered from that injury as of October 23, 2007. Claimant filed a penalty petition because Employer refused to pay for his gym membership, but the WCJ denied it. The Board affirmed the WCJ's grant of Employer's termination petition and the denial of Claimant's penalty petition. These petitions are not at issue on appeal and, thus, the opinion does not consider the hearing evidence pertaining to these petitions.
On May 21, 2004, Claimant was injured while doing his job as a firefighter. Employer accepted liability and issued a Notice of Compensation Payable describing the work injury as a left shoulder rotator cuff tear; aggravation of lumbar disc disease; and a psychological adjustment disorder with anxiety and depression. Employer paid Claimant total disability benefits in the amount of $690 per week, the maximum amount for any claimant injured in 2004.
On September 16, 2008, one of Claimant's treating physicians, Dennis J. Phillips, II, M.D., informed Employer that Claimant could work full-time at a light-duty job. Two days later, Employer sent Claimant an LIBC Form 757, Notice of Ability to Return to Work. On September 24, 2008, Employer filed a petition seeking to suspend compensation benefits as of September 16, 2008, the date when Employer alleged that Claimant had retired and voluntarily removed himself from the labor market. Claimant filed an answer denying the allegations. The matter was assigned to a WCJ who held an evidentiary hearing. Both Employer and Claimant appeared and presented evidence.
An employer is required by Section 306(b)(3) of the Workers' Compensation Act, Act of June 2, 1915, P.L. 736, as amended, added by the Act of June 24, 1996, P.L. 350, 77 P.S. §512(3), to supply the claimant with a Notice of Ability to Return to Work. Section 306(b)(3) states:
If the insurer receives medical evidence that the claimant is able to return to work in any capacity, then the insurer must provide prompt written notice, on a form prescribed by the department, to the claimant, which states all of the following:
77 P.S. §512(3).(i) The nature of the employe's physical condition or change of condition.
(ii) That the employe has an obligation to look for available employment.
(iii) That proof of available employment opportunities may jeopardize the employe's right to receipt of ongoing benefits.
(iv) That the employe has the right to consult with an attorney in order to obtain evidence to challenge the insurer's contentions.
Employer submitted the medical deposition of Dr. Phillips, a board certified orthopedic surgeon who has been treating Claimant for his left shoulder injury since October 2004. Dr. Phillips stated that the injury rendered Claimant incapable of doing the heavy work of a firefighter. Claimant underwent shoulder surgery in July 2004. In April 2005, Dr. Phillips sent Employer a report stating that Claimant could do sedentary work. On September 16, 2008, Dr. Phillips released Claimant to perform light-duty work that involved lifting nor more than 20 pounds. However, because of Claimant's increasing shoulder pain, Dr. Phillips limited Claimant to sedentary work as of October 28, 2008. On March 25, 2009, Dr. Phillips did more shoulder surgery, for which Dr. Phillips prescribed a program of physical therapy for Claimant. As of May 1, 2009, when he was deposed, Dr. Phillips had not yet released Claimant to do any type of work.
Dr. Phillips could not recall whether Claimant ever asked for a clarification of his work restrictions. Nor could Dr. Phillips recall Claimant ever asking that he consult with the Office of Vocational Rehabilitation (OVR) on a job placement for Claimant. Dr. Phillips was under the impression that Claimant was out of work due to back issues, not shoulder issues.
Employer also presented the deposition testimony of Barbara E. Swan, M.D., who is board certified in physical medicine and rehabilitation. Dr. Swan has treated Claimant's work-related back injury since July 28, 2005. In September 2005, Dr. Swan informed Claimant that he would not be able to return to work as a firefighter. On October 14, 2008, following a physical examination, Dr. Swan released Claimant to do medium-duty work, at least with respect to his back. Dr. Swan testified that Claimant has never asked her to help him return to the workplace or to identify what job restrictions should be placed on him.
On October 28, 2008, Employer sent Claimant a second Notice of Ability to Return to Work. This Notice informed Claimant that Dr. Swan had released him to perform medium-duty work as of October 14, 2008.
Claimant testified in opposition to Employer's suspension petition, both by deposition and by live testimony before the WCJ. He presented no medical evidence or testimony.
Claimant testified that he has experienced both back and shoulder pain since his 2004 work injury and has never returned to work. Claimant testified that he applied for a disability pension after he was injured, but it was denied because Employer fired him in April 2005. Claimant explained that an elderly couple for whom he was doing construction work complained to Employer that Claimant had not finished a job for which they paid him. Employer investigated and referred the matter to the City's Fire Trial Board, which concluded that Claimant had acted unethically. On that basis, Employer discharged Claimant.
Employer offered evidence that Claimant was discharged because he did not inform Employer that he was earning wages in construction while he was collecting full wage and benefits under what is commonly known as the Heart and Lung Act. Claimant's firing rendered him ineligible for either a disability or retirement pension. However, Claimant has continued to receive workers' compensation disability benefits since his discharge.
Act of June 28, 1935, P.L. 477, as amended, 53 P.S. §§637-638. The Heart and Lung Act provides firemen injured on the job their full salary. They receive these benefits concurrent with their workers' compensation disability benefits. According to Claimant, Employer attempted to stop paying him Heart and Lung Act benefits before he was fired, but a city arbitrator did not allow it.
Claimant testified that he considers himself to be disabled, but he denied that he has retired or withdrawn from the workforce. Claimant testified that since 2006 he has met with an OVR counselor three times, most recently in September 2007. Because of his substantial physical limitations, Claimant testified that he is not sure what type of work, if any, he is able to do. Claimant submitted into evidence records from OVR documenting its dealings with Claimant.
Claimant acknowledged receiving Employer's Notice of Ability to Return to Work based on Dr. Phillips' release to light-duty work in September 2008 as well as the second Notice based on Dr. Swan's release to medium-duty work in October 2008. Claimant testified that after receiving the Notices, he interviewed for two jobs with his aunt and with a high school friend. Claimant did not know whether either potential employer actually had jobs available. Claimant stated that he reviews the want ads for jobs, but he also stated that it would not be fair to potential employers for him to accept a job, given his physical limitations. On March 16, 2009, Claimant testified that he planned to seek employment training from OVR after his scheduled March 25, 2009, shoulder surgery, at which point he would learn the full extent of his capabilities.
The WCJ credited the testimony of Dr. Phillips and Dr. Swan. Based on their testimony, the WCJ found that Claimant was "capable of modified duty work at all relevant times." WCJ Decision at 12; Finding of Fact No. 40. The WCJ also found that Claimant never asked his doctors what, if any, work restrictions applied to him, and he did not seek their assistance with OVR. The WCJ rejected as not credible Claimant's testimony, including his assertion that he did not withdraw from the workforce, noting that Claimant expressed the view that it would be unfair to employers to hire him to do a job he cannot perform. The WCJ found Claimant's efforts with OVR were limited and that his interviews with a family member and a childhood friend, without knowing whether they had jobs available for him, did not amount to a good faith effort to find work. The WCJ found, as fact, that Claimant was merely "attempting to create the appearance of looking for work." WCJ Decision at 12; Finding of Fact No. 36.
The WCJ has complete authority over questions of credibility, conflicting medical evidence and evidentiary weight. Sherrod v. Workmen's Compensation Appeal Board (Thoroughgood, Inc.), 666 A.2d 383, 385 (Pa. Cmwlth. 1995).
Based on these findings, the WCJ concluded that Claimant had voluntarily removed himself from the labor market, warranting a suspension of his benefits. Citing Southeastern Pennsylvania Transportation Authority v. Workmen's Compensation Appeal Board (Henderson), 669 A.2d 911 (Pa. 1995), the WCJ observed that
for disability benefits to continue following a retirement, a claimant must show that he is seeking employment [ ] after retirement, or that he was forced into retirement because of the work injury.WCJ Decision at 13; Conclusion of Law No. 6. The WCJ then concluded that:
[E]mployer obtained information that the claimant was capable of some level of work, and that the claimant had retired from the time of injury employer. Although not dispositive as to a "voluntary removal," this was enough for [E]mployer herein to commence litigation.WCJ Decision at 14; Conclusion of Law No. 10(c) (emphasis added). The WCJ reasoned that, consistent with Henderson, the burden then shifted to Claimant to show that he had been forced out of the workforce by his work injury or that he was searching for work in good faith; Claimant failed to meet either burden. The WCJ suspended Claimant's workers' compensation benefits effective September 16, 2008, the date of Dr. Phillips' first work release.
Claimant appealed, and the Board reversed the suspension. The Board observed that although the WCJ had concluded that Claimant "had retired," the WCJ made no findings to that effect. Employer's evidence showed that Claimant was fired from his job and, thus, could not be said to have voluntarily left the workforce. Accordingly, it was Employer's burden to prove that Claimant had earning capacity, which it could do by introducing evidence of a job referral or a labor market survey. Because Employer did not do so, the Board denied Employer's requested suspension.
Employer petitioned this Court for review, and we affirmed the Board. City of Pittsburgh v. Workers' Compensation Appeal Board (Marinack), 37 A.3d 39 (Pa. Cmwlth. 2012). We held that the Board erred in holding that any claimant who loses his job, but is not awarded a pension, must be found attached to the workplace. However, applying the totality of the circumstances test announced by this Court in City of Pittsburgh v. Workers' Compensation Appeal Board (Robinson), 4 A.3d 1130 (Pa. Cmwlth. 2010) (Robinson I), affirmed, 67 A.3d 1194 (Pa. 2013) (Robinson II), we held that Employer did not prove that Claimant intended to withdraw from the workforce. Accordingly, Claimant's failure to seek work was not relevant. Our Supreme Court vacated and remanded the case for this Court to reconsider in light of the Supreme Court's decision in Robinson II. City of Pittsburgh v. Workers' Compensation Appeal Board (Marinack), 81 A.3d 882 (Pa. 2013). Employer's petition for review is now before this Court on remand.
This Court's review of an order of the Board is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether Board procedures were violated, whether constitutional rights were violated or an error of law was committed. Cytemp Specialty Steel v. Workers' Compensation Appeal Board (Crisman), 39 A.3d 1028, 1033 n.6 (Pa. Cmwlth. 2012).
Employer argues that based upon the totality of the circumstances, it proved that Claimant intended to retire and remove himself from the workforce. In the alternative, Employer argues that a remand is required for the WCJ to reconsider the record in light of the clarified burden of proof set forth in Robinson II.
We begin with a review of the law regarding when a claimant has voluntarily retired. In general, the employer has a responsibility to "try to reintroduce into the workforce those employees injured while pursuing the employer's interests." Landmark Constructors, Inc. v. Workers' Compensation Appeal Board (Costello), 747 A.2d 850, 854 (Pa. 2000). An employer seeking to suspend disability compensation must establish the availability of suitable work within the claimant's restrictions, either by job referrals or a labor market survey. Phoenixville Hospital v. Workers' Compensation Appeal Board (Shoap), 81 A.3d 830, 841-42 (Pa. 2013); Kachinski v. Workmen's Compensation Appeal Board (Vepco Construction Company), 532 A.2d 374, 380 (Pa. 1987).
However, an "employer need not prove the availability of employment, which a claimant has no intention of pursuing." Dugan v. Workmen's Compensation Appeal Board (Fuller Company of Catasauqua), 569 A.2d 1038, 1040 (Pa. Cmwlth. 1990). Where the employer can demonstrate that the claimant has voluntarily left the labor market upon retirement, it is entitled to a suspension. Henderson, 669 A.2d at 913. In determining whether a claimant has voluntarily retired, the WCJ must consider the totality of the circumstances. Our Supreme Court in Robinson II explained:
Where the employer challenges the entitlement to continuing compensation on grounds that the claimant has removed himself or herself from the general workforce by retiring, the employer has the burden of proving that the claimant has voluntarily left the workforce. There is no presumption of retirement arising from the fact that a claimant seeks or accepts a pension, much less a disability pension; rather, the worker's acceptance of a pension entitles the employer only to a permissive inference that the claimant has retired. Such an inference, if drawn, is not on its own sufficient evidence to establish that the worker has retired - the inference must be considered in the context of the totality of the circumstances. The factfinder must also evaluate all of the other relevant and credible evidence before concluding that the employer has carried its burden of proof.Robinson II, 67 A.3d at 1209-10.
If the employer produces sufficient evidence to support a finding that the claimant has voluntarily left the workforce, then the burden shifts to the claimant to show that there in fact has been a compensable loss of earning power. Conversely, if the employer fails to present sufficient evidence to show that the claimant has retired, then the employer must proceed as in any other case involving a proposed modification or suspension of benefits.
In sum, the employer bears the burden to establish that a claimant has voluntarily retired. Evidence of voluntary retirement includes "the claimant's receipt of a pension, the claimant's own statements relating to a voluntary withdrawal from the workforce, and the claimant's efforts or non-efforts to seek employment." Id. at 1210. An employer is not required to prove a claimant's subjective state of mind. Id. If the employer "fails to present sufficient evidence to show that the claimant has retired, then the employer must proceed as in any other case involving a proposed modification or suspension of benefits," i.e., by showing available employment within the claimant's restrictions. Id.
Here, Employer contends that in light of the WCJ's findings of fact and rejection of Claimant's testimony as not credible, Employer established, by the totality of the circumstances, that Claimant has voluntarily left the workforce. However, Employer acknowledges that this Court has remanded other post-Robinson II cases even where the WCJ found the claimant not credible. We conclude that a remand is required in this case.
See, e.g., Bick v. Workers' Compensation Appeal Board (City of Pittsburgh), (Pa. Cmwlth., No. 599 C.D. 2013, filed September 18, 2013). --------
When the WCJ rendered his decision in this case, he did not have the benefit of Robinson II, which has clarified what an employer must do to prove that the claimant has voluntarily withdrawn from the workforce. A remand is appropriate because the WCJ did not make factual findings about Claimant's separation from the workforce. The WCJ referred to Claimant's firing and his application for a disability pension in the summary of the evidence, but he did not make specific findings about the reason for Claimant's separation from the workforce. Further, the WCJ placed the burden on Claimant to prove that his work injury forced him out of the workforce or that he was searching for work in good faith. Robinson II clarified that Employer bears the burden of proving that Claimant voluntarily left the workforce. Under the totality of the circumstances test, the WCJ must consider "all of the relevant evidence in determining whether a worker has retired from the work force." Robinson II, 67 A.3d at 1209 (emphasis added).
Employer acknowledges that requesting a pension "is not on its own sufficient evidence to establish that the worker has retired." Robinson II, 67 A.3d at 1209. Employer also acknowledges that a claimant's failure to seek work does not, by itself, prove a voluntary retirement from the workforce. Keene v. Workers' Compensation Appeal Board (Ogden Corporation), 92 A.3d 897, 902 (Pa. Cmwlth.), petition for allowance of appeal denied, ___ A.3d ___ (Pa. 2014). The WCJ must reassess all relevant evidence presented in this case and determine whether Employer proved, through the totality of the circumstances, that Claimant voluntarily withdrew from the workforce.
Accordingly, we vacate the Board's order and remand this case to the Board with instructions to remand to the WCJ for reconsideration of the record in light of the clarified burden of proof set forth in Robinson II.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 8th day of January, 2015, the order of the Workers' Compensation Appeal Board dated December 21, 2010, in the above captioned matter is hereby VACATED and the matter is REMANDED for further proceedings in accordance with the attached opinion.
Jurisdiction relinquished.
/s/_________
MARY HANNAH LEAVITT, Judge