Opinion
No. 586 C.D. 2011
10-09-2014
City of Pittsburgh and UPMC Benefit Management Services, Inc., Petitioners v. Workers' Compensation Appeal Board (Darwin), 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 an adjudication of the Workers' Compensation Appeal Board (Board) denying its petition to suspend Robert Darwin's (Claimant) benefits. In doing so, the Board affirmed the decision of the Workers' Compensation Judge (WCJ) that Employer did not prove that Claimant intended to withdraw from the workforce when he began collecting a disability pension. We vacate and remand.
Claimant worked as a firefighter for Employer. On January 17, 1985, Claimant sustained a work injury. On February 4, 1985, Employer accepted liability and issued a Notice of Compensation Payable (NCP) describing the work injury as an acute lumbosacral strain. The NCP noted that since Claimant was a firefighter he would receive Heart and Lung benefits, i.e., his full salary, in lieu of compensation.
Under what is commonly referred to as the Heart and Lung Act, Act of June 28, 1935, P.L. 477, as amended, 53 P.S. §§637-638, disabled firefighters are entitled to receive their full salary.
In late 1989, Claimant returned to work in a modified-duty position repairing facemasks and air tanks for the fire department. On December 19, 2003, Employer sent Claimant a letter stating that due to "serious fiscal constraints" it was ending all "long-term temporary modified duty assignments" for employees unable to return to their pre-injury duties. Reproduced Record at 19a (R.R. ___). Accordingly, the letter informed Claimant that his job would end on December 26, 2003, at which time he would begin collecting Heart and Lung benefits and that his other employment benefits, such as health insurance, would continue. Finally, the letter stated that Claimant might "wish to contact the Pension Office . . . to discuss the possibility of being eligible for a retirement benefit." R.R. 20a. On January 26, 2004, Claimant applied for and was granted a disability pension.
On April 13, 2004, Employer issued a second NCP identical to the first one, except that it increased Claimant's average weekly wage as a result of his years of working at the modified job. The revised NCP stated that he would receive disability compensation in accordance with the Workers' Compensation Act.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
The following year, Employer referred Claimant to Jon Levy, M.D., a board certified orthopedic surgeon, for an independent medical examination (IME). This was done on October 24, 2005. Three years later, on March 31, 2008, Dr. Levy did a second IME. On April 10, 2008, Employer issued a Notice of Ability to Return to Work advising Claimant that he had been found able to "return to work in a light duty capacity." R.R. 21a. On May 1, 2008, Employer filed a suspension petition, alleging that Claimant was physically capable of working but had chosen to remove himself from the workforce.
Hearings were held before the WCJ, at which Employer and Claimant presented evidence. Employer offered the Notice of Ability to Return to Work, the deposition testimony of Dr. Levy, and the deposition testimony of Claimant. Dr. Levy testified that his examination of Claimant revealed no abnormalities, aside from Claimant's long-standing complaints of pain. Dr. Levy opined that Claimant had reached maximum medical improvement and was capable of light-duty work.
In his deposition, Claimant stated that Employer's December 19, 2003, letter did not inform him that he had a responsibility to seek employment. Claimant recalled that, prior to receiving the Notice of Ability to Return to Work, he asked friends about jobs parking cars, performing lawn care, and doing construction, but they were not hiring. On cross-examination, he admitted that he did not believe that he was physically able to do these jobs. After he received the Notice of Ability to Return to Work, Claimant submitted job applications to Home Depot, T.J. Maxx, and Family Dollar, among others, but he was not called for interviews. In response to cross-examination, Claimant admitted that his applications were incomplete, which he attributed to his poor computer skills.
Claimant then testified live before the WCJ on two occasions, at which he presented evidence of other job applications he had made. Claimant also testified about his injury, Employer's termination of his modified-duty job and his receipt of a disability pension. Claimant stated that he continues to look for work.
The WCJ denied Employer's suspension petition. The WCJ found that Claimant did not remove himself from the workforce. The WCJ found that since April 2008, when Claimant received the Notice of Ability to Return to Work, Claimant has actively sought employment. However, the WCJ did not consider the period from 2003 to 2008 after Claimant's modified light-duty job was eliminated.
Employer appealed to the Board, contending that the WCJ erred in its understanding of Southeastern Pennsylvania Transportation Authority v. Workmen's Compensation Appeal Board (Henderson), 669 A.2d 911 (Pa. 1995), because the WCJ stated that a claimant could defeat suspension simply by showing that he was "forced out of his pre-injury position." WCJ Decision at 4. Employer noted that the Supreme Court actually stated "forced into retirement." Id. at 913. Employer argued that Claimant did not prove that he had searched for jobs in good faith and that the WCJ's findings in this regard were not based upon substantial evidence.
The Board affirmed the WCJ. In doing so, it held that this case was controlled by 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). Robinson I established a totality of circumstances test to determine whether a claimant has withdrawn from the workforce. In the present case, the Board noted that Claimant's job was eliminated and he had inquired about jobs both before and after receiving the Notice of Ability to Return to Work in 2008. Further, the Board rejected Employer's claim that Claimant did not undertake his job searches in good faith. Based on these findings, the Board held that the "totality of circumstances" did not show that Claimant intended to withdraw from the workforce. Employer petitioned this Court for review, and we affirmed on February 2, 2012. City of Pittsburgh v. Workers' Compensation Appeals Board (Darwin) (Pa. Cmwlth., No. 586 C.D. 2011, filed February 2, 2012). Employer appealed. 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 Appeals Board (Darwin), 81 A.3d 882 (Pa. 2013). Thus, Employer's petition for review is again before this Court.
On review, this Court must determine whether necessary findings of fact are supported by substantial evidence, whether the Board's procedures were violated, whether constitutional rights were violated, or whether an error of law was committed. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Graves v. Workers' Compensation Appeal Board (Philadelphia Housing Authority), 983 A.2d 241, 244 n.6 (Pa. Cmwlth. 2009). Substantial evidence is such relevant evidence that a reasonable person might find sufficient to support the WCJ's findings. Rosenberg v. Workers' Compensation Appeal Board (Pike County), 942 A.2d 245, 249 n.4 (Pa. Cmwlth. 2008).
Employer raises one issue for our consideration. Employer argues that it was not required to prove Claimant's subjective intent to withdraw from the workforce. Instead, Employer contends that the evidence presented established that Claimant voluntarily withdrew from the workforce. Therefore, Employer argues that the burden shifted to Claimant to show that he experienced a compensable loss of earning power, which he did not do.
Claimant has been precluded from filing a brief in the instant matter due to his failure to do so within the mandated time frame.
We begin with a review of the law regarding when a claimant has voluntarily retired. In general, an employer seeking to suspend a claimant's benefits bears the burden of proving that, although a claimant continues to be physically impaired due to the work injury, employment is available to the claimant within his restrictions which would result in no loss of wages to the claimant. Harle v. Workmen's Compensation Appeal Board (Telegraph Press), 658 A.2d 766, 768 (Pa. 1995). To prove the availability of such employment, the employer is required to present evidence of available positions within the claimant's restrictions. Kachinski v. Workmen's Compensation Appeal Board (Vepco Construction), 532 A.2d 374, 380 (Pa. 1987). The burden is the same when an employer provides a claimant with a modified-duty position that is subsequently eliminated. Bethlehem Steel Corporation v. Workers' Compensation Appeal Board (Laubach), 760 A.2d 378, 383 (Pa. 2000).
An exception to the above rule is when the employer can demonstrate that the claimant has voluntarily removed himself from the workforce by retiring. Henderson, 669 A.2d at 913. Our Supreme Court in Henderson stated that "[d]isability benefits must be suspended when a claimant voluntarily leaves the labor market upon retirement." Id. 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.
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.Robinson II, 67 A.3d at 1209-10.
In sum, the employer has the burden of presenting evidence 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 voluntary withdrawal from the workforce, and the claimant's efforts or non-efforts to seek employment." Id. at 1210. However, 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." Id. To modify benefits, an employer must produce: (1) "medical evidence of a change in [the employee's] condition," and (2) "evidence of a referral (or referrals) to a then open job (or jobs), which fits in the occupational category for which the claimant has been given medical clearance." Kachinski, 532 A.2d at 380.
Employer contends that the objective evidence shows that Claimant voluntarily withdrew from the workforce. Employer argues that after Claimant's temporary assignment was eliminated in 2003, Claimant did not make a meaningful effort to look for work. Employer acknowledges that Claimant's acceptance of a disability pension does not create a presumption that he intended to withdraw from the workforce. However, Employer points to statements made by Claimant that show that Claimant intended to retire. Finally, Employer, citing Pennsylvania State University v. Workers' Compensation Appeal Board (Hensal), 948 A.2d 907 (Pa. Cmwlth. 2008), argues that Claimant did not make a "good faith" search for employment until after he received the Notice of Ability to Return to Work. Claimant's lack of good faith is evidenced by the facts that he applied for jobs he knew he could not perform and that his recent job applications were incomplete.
Employer cites the following excerpt from Claimant's testimony as objective evidence that Claimant voluntarily withdrew from the workforce:
Q. Now, sir, whenever you put in and applied for your disability pension and received it, at that point in time did you have any intention of continuing to work in any type of capacity?
A. At the time?
Q. Uh-huh.
A. If I could.
Q. Did you think you'd ever be going back to work?
A. You mean as far as fire department goes?
Q. No. In terms of overall the whole labor market.
A. Never thought about it.
Q. Then you started thinking about it once I guess you received the Notice of Ability to Return to Work document?
A. No. I was thinking about it really before.
When the WCJ rendered his decision in this case, he did not have the benefit of our Supreme Court's decision in Robinson II, which clarified the employer's burden of proof where it is alleged that the claimant has voluntarily withdrawn from the workforce. Given our Supreme Court's remand, we will 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 Supreme Court's decision in Robinson II.
A remand is appropriate here because the WCJ only considered the period after Claimant received the Notice in 2008 to determine whether Claimant voluntarily removed himself from 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. Claimant's efforts or non-efforts to seek work after his modified-duty position was eliminated in 2003 but prior to receipt of the Notice in 2008 is relevant evidence in considering whether or not he voluntarily retired. The burden is on Employer, but Claimant has control of the relevant evidence. This is why the WCJ must review the objective evidence and determine whether it supports a reasonable inference that, when Claimant retired, he intended to withdraw from the workforce.
Claimant worked in a modified-duty position from 1989 to 2003, and stated that he inquired about three positions after his position was terminated in 2003 but prior to receiving the Notice in 2008. Whether Claimant's inquiries during this period constitute a good faith effort or, to the contrary, demonstrate that Claimant intended to voluntarily withdraw from the workforce, is a matter for the WCJ to determine. To show a good faith effort, the claimant "has to show that he applied or sent applications for employment or other indicia that he was actively applying for employment." Hensal, 948 A.2d at 911.
Whether a claimant has looked for work before receiving a Notice of Ability to Return to Work is a factor that the WCJ should consider as part of the totality of the circumstances test established under Robinson II. See, e.g., Turner v. Workers' Compensation Appeal Board (City of Pittsburgh), 78 A.3d 1224, 1232-33 (Pa. Cmwlth. 2013) (Simpson, J., concurring).
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 9th day of October, 2014, the order of the Workers' Compensation Appeal Board dated March 8, 2011, in the above-captioned matter is hereby VACATED and the case is REMANDED for further proceedings in accordance with the attached opinion.
Jurisdiction relinquished.
/s/_________
MARY HANNAH LEAVITT, Judge
R.R. 131a-32a.