Opinion
No. 978 C.D. 2011
04-13-2012
City of Pittsburgh and UPMC Benefit Management Services, Inc., Petitioners v. Workers' Compensation Appeal Board (Norris), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
This case was assigned to the opinion writer on or before January 6, 2012, when President Judge Leadbetter completed her term as President Judge.
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
City of Pittsburgh (Employer) petitions for review of an order of the Workers' Compensation Appeal Board (Board), dated May 3, 2011. The Board affirmed the decision and order of a Workers' Compensation Judge (WCJ) and denied Employer's petition to suspend Nancy Norris' (Claimant) compensation benefits. For the reasons set forth below, we affirm.
Claimant worked as a laborer for Employer. Claimant sustained a L5-S1 herniated disc in the course of her employment on December 8, 1992. On March 11, 2008, Employer issued a notice of ability to return to work. Thereafter, on May 29, 2008, Employer filed a suspension petition, alleging that, although Claimant is physically capable of working in alternative labor markets, Claimant chose to voluntarily remove herself from the workforce. Claimant filed an answer, denying the averments in the suspension petition.
Before the WCJ, Claimant testified that she sustained a back injury described as a right S1 radiculopathy and an L5-S1 herniated disc when she fell off a ladder and twisted her back while changing a light bulb. (Reproduced Record (R.R.) at 38a.) Thereafter, Claimant underwent surgery in 1993 and returned to work as a laborer in a light duty position with weight restrictions. (R.R. at 38a-39a.) While working in her light duty position, Employer asked Claimant to complete a test to determine whether she could fulfill the duties of a laborer without restrictions. (Id. at 39a.) When Claimant could not complete the physical examination, Claimant ceased to be employed by Employer in 2004 and was unsuccessful in obtaining alternative employment with Employer, despite her inquires. (Id. at 55a.) Claimant continues to have post-operative complications related to her back injury and is currently treating with pain medication. (Id. at 52a, 53a.) Claimant routinely visits her treating physician every three to four months for pain management. (Id. at 54a.)
Claimant testified that, subsequent to her employment with Employer, she received a disability pension from Employer beginning in June of 2004. (Id. at 57a, 115a.) Claimant testified that she first discovered the possibility of a pension when she received a letter discussing her eligibility for a disability pension. (Id. at 57a.) To receive such pension, Claimant testified that she was seen by "three different doctors" who determined her eligibility. (Id.) Ultimately, Claimant was awarded a disability pension. (Id.) Claimant also began receiving social security disability. (Id.) Claimant continues to receive both her disability pension and social security disability benefits. When asked if Claimant understood the meaning of accepting a pension, Claimant testified as follows:
Q: Am I correct that the first sentence of your form indicates that you were giving notice that it was your desire to retire permanently from the service of the City of Pittsburgh?(Id. at 119a-20a.)
A: Wait a minute. They're the ones that had me—they got—in other words, they got rid of me, I didn't want to leave. I tried to do everything I could to stay with the city.
Q: I understand that, ma'am, but the form does indicate that it's your desire to retire permanently from the service of the City of Pittsburgh, correct?
A: Well, I don't understand that.
Q: [City's counsel asks Claimant if she voluntarily signed the pension application indicating her desire to retire permanently from the service of the City of Pittsburgh] Now, do you understand? That is my question?
A: No, I don't really understand it, because they told me—she just told me I would be getting a disability pension, the lady at the Board, so I signed it. I mean . . . .
Q: Ma'am—
A: I don't understand. I didn't want to leave the job. They made me leave, because they said that they're cutting back, and it was like about ten of us had to go through, you know what I mean, the same thing.
Claimant testified that she has not obtained employment or sought any employment since her position with Employer, because it is difficult to fill out applications due to her limited skills. (Id. at 40a, 63a, 70a.) Claimant admitted that, prior to her position with Employer, she managed to fill out applications and interview for previous job positions. (Id. at 70a.) Claimant testified, however, that she often received assistance from her daughter or other individuals in order to fill out those job applications. (Id.) In fact, Claimant testified that she received assistance from the Pension Board secretary to complete her pension application. (Id. at 60a-62a.) Claimant indicated that she hoped to continue with some type of employment and, further, that she had not planned to take herself out of the workforce. (Id. at 58a.) Claimant indicated that if she received assistance in filling out applications, she would be more willing to submit applications for appropriate employment positions. (Id.)
Employer submitted the deposition testimony of David A. Vermeire, M.D., a board certified orthopedic surgeon, in support of its suspension petition. (R.R. at 78a.) Dr. Vermeire testified that he examined Claimant on February 27, 2008 as part of an independent medical evaluation. (Id. at 82a.) Dr. Vermeire testified that the examination revealed an S1 nerve root impingement. (Id. at 89a-90a.) Further, Dr. Vermeire found that Claimant had mild limited motion in her back and recommended she continue taking pain medication. (Id. at 90a-91a.) Dr. Vermeire opined that Claimant reached maximum medical improvement from the work injury that occurred on December 8, 1992. (Id. at 104a.) Dr. Vermeire concluded that Claimant was capable of light duty work with restrictions, which included limited amounts of sitting and standing, squatting at the knees occasionally, and bending at the waist occasionally. (Id. at 93a.)
By decision and order dated April 19, 2010, the WCJ denied Employer's suspension petition, finding that Claimant had not voluntarily withdrawn from the workforce. Specifically, the WCJ stated as follows:
4. [T]his Judge finds that the claimant testified in a credible and persuasive manner that she did not understand the significance of the disability pension she began receiving in 2004 from her employer. She clearly did not recall the circumstances of the application process and clearly was confused by the questions posed to her about the application. The claimant testified in a credible manner that if a light duty job had been made available to her, she would not have pursued the disability pension. She further testified in a credible manner that if she had not been injured she would have remained working at her regular job in the City.(R.R. at 10a, 12a.)
. . . .
11. This Judge also finds that the claimant did not voluntarily leave the labor market.
Employer appealed to the Board. By opinion and order dated May 3, 2011, the Board affirmed the WCJ's decision. Specifically, the Board determined that based on the recent precedent of City of Pittsburgh v. Workers' Compensation Appeal Board (Robinson), 4 A.3d 1130 (Pa. Cmwlth. 2010), appeal granted, ___ Pa. ___, 17 A.3d 917 (2011), Employer failed to prove, by a totality of circumstances, that Claimant voluntarily withdrew herself from the labor market. Accordingly, the Board concluded that Claimant's benefits should not be suspended. This appeal followed.
As noted by the Board, Robinson was issued subsequent to the WCJ's decision. Nevertheless, "[c]hanges in decisional law which occur during litigation will be applied to cases pending on appeal." McCloskey v. Workmen's Comp. Appeal Bd. (J.H. France Refractories), 501 Pa. 93, 98, 460 A.2d 237, 239 (1983).
On appeal, Employer argues that substantial evidence does not exist to support the finding that Claimant did not voluntarily leave the labor market. Employer also contends that the Board committed an error of law by making its own credibility determination in finding that Claimant did not retire. Finally, Employer argues that the Board erred by misapplying the Robinson decision and concluding that Employer failed to meet its burden to prove that Claimant voluntarily left the labor market. We disagree.
This Court's standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. 2 Pa. C.S. § 704.
Employer claims that the WCJ "did not specifically indicate whether or not he found the Claimant to have retired." (Employer's Brief at 20.) Employer contends, therefore, that because the WCJ failed to make this specific finding, the Board erred in making its own finding of fact. (Id.) To the contrary, the WCJ's finding of fact number 11 states as follows: "This Judge also finds that the claimant did not voluntarily leave the labor market." (R.R. at 12a.) Employer's argument, therefore, is without merit, and we need not address it further.
We first address Employer's argument that substantial evidence does not exist to support the finding that Claimant did not retire. The WCJ is the ultimate fact finder in workers' compensation cases, and we are bound by the WCJ's findings of fact if they are supported by substantial evidence. General Electric Co. v. Workmen's Comp. Appeal Bd. (Valsamaki), 593 A.2d 921, 924 (Pa. Cmwlth.), appeal denied, 529 Pa. 626, 600 A.2d 541 (1991). It does not matter that there is evidence of record which could support a finding contrary to that made by the WCJ, the only inquiry is whether there is evidence of record which supports the WCJ's finding. Hoffmaster v. Workers' Comp. Appeal Bd. (Senco Products Inc.), 721 A.2d 1152, 1155 (Pa. Cmwlth. 1998). The WCJ, however, cannot capriciously disregard competent, relevant evidence, and "capricious disregard is found when the fact-finder ignores relevant, competent evidence." Armitage v. Workers' Comp. Appeal Bd. (Gurtler Chem.), 842 A.2d 516, 519 n.4 (Pa. Cmwlth. 2004).
Here, Claimant's testimony supports the finding that she desired to continue working in the labor market. When Claimant's employment with Employer ended, Claimant stated that "[she] tried to do everything [she] could to stay with [Employer]." (R.R. at 119a.) Claimant's testimony reveals that, although she had not obtained employment since her position with Employer, Claimant had difficulty reading and completing employment applications, which contributed to her unemployment. (R.R. at 40a, 63a, 70a.) Furthermore, with respect to her pension, Claimant's exchange with Employer's counsel sufficiently indicates that she did not understand the impact of filling out and signing a pension form. (R.R. at 119a-120a.) Based on the testimony presented, we find that substantial evidence exists to support the WCJ's finding. Furthermore, the WCJ credited Claimant's testimony that she desired to continue working, and we are bound by that determination. See Valsamaki, 593 A.2d at 924. Accordingly, substantial evidence supports the finding that Claimant did not intend to remove herself from the workforce.
We next address Employer's contention that the Board erred in its application of Robinson. Specifically, Employer contends that based on the totality of the circumstances, including an acceptance of pension, a signature on the pension form, and a "lack of dispute that Claimant retired," Employer met its burden of proving that Claimant retired. (Employer's Brief at 13.)
Black's Law Dictionary defines "retirement" as "[t]ermination of one's own employment or career, esp. upon reaching a certain age or for health reasons; retirement may be voluntary or involuntary." BLACK'S LAW DICTIONARY 1431 (9th ed. 2009). In this context, the relevant inquiry is whether the claimant has retired from the entire labor market, not whether the claimant has retired from his pre-injury job. See Cnty. of Allegheny v. Workers' Comp. Appeal Bd. (Weis), 872 A.2d 263 (Pa. Cmwlth. 2005).
The initial burden in a suspension petition is always on the employer. Day v. Workers' Comp. Appeal Bd. (City of Pittsburgh), 6 A.3d 633, 641 (Pa. Cmwlth. 2010). Generally, to establish entitlement to a suspension or modification of a claimant's benefits, an employer must establish the following:
1. The employer who seeks to modify a claimant's benefits on the basis that he has recovered some or all of his ability must first produce medical evidence of a change in condition.Kachinski v. Workmen's Comp. Appeal Bd. (Vepco Construction Co.), 516 Pa. 240, 252, 532 A.2d 374, 379-80 (1987). Alternatively, an employer may establish its entitlement to a suspension or modification by establishing a claimant's earning power through expert testimony. Robinson, 4 A.3d at 1134. Nevertheless, an employer is not required to establish job availability where a claimant has voluntarily removed himself from the workforce through retirement. Southeastern Pennsylvania Transp. Auth. v. Workmen's Comp. Appeal Bd. (Henderson), 543 Pa. 74, 79, 669 A.2d 911, 913 (1995). Our analysis, therefore, is based on a determination of whether Claimant voluntarily removed herself from the workforce.
2. The employer must then produce 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, e.g., light work, sedentary work, etc.
3. The claimant must then demonstrate that he has in good faith followed through on the job referral(s).
4. If the referral fails to result in a job then claimant's benefits should continue.
In Robinson, this Court addressed the issue of whether acceptance of a pension gives rise to the presumption that a claimant has voluntarily left the workforce. Holding that the determination of whether a claimant has retired depends on the totality of the circumstances, we stated as follows:
In determining whether acceptance of a pension should create a presumption that a claimant has terminated her career, it is important to look at the facts involved and the type of pension. For example, there are both retirement pensions and disability pensions. There are also different types of disability pensions. Some, like the disability pension at issue, require only a showing that the recipient cannot perform her time-of-injury job. That a claimant is unable to perform the time-of-injury job due to a work-related injury is part of a claimant's burden of proof in order to receive workers' compensation benefits in the first place. Thus, accepting this type of disability pension by itself, would not, without more, indicate that the claimant has voluntarily left the entire workforce. Rather, it is merely an acknowledgement that the claimant cannot perform her time-of-injury job, which has already been determined through a claim petition or notice of compensation payable.
. . . .
In order to show that efforts to return a claimant to the workforce would be unavailing because a claimant has retired, an employer must show, by the totality of the circumstances, that the claimant has chosen not to return to the workforce. Circumstances that could support a holding that claimant has retired include: (1) whether
there is no dispute that the claimant retired; (2) the claimant's acceptance of a retirement pension; or (3) the claimant's acceptance of a pension and refusal of suitable employment within her restrictions.Robinson, 4 A.3d at 1137-38 (emphasis added). Accordingly, under Robinson, the acceptance of a disability pension alone will not necessarily give rise to the presumption that a claimant has voluntarily left the labor market. Instead, an employer must provide sufficient evidence to establish that, under the totality of the circumstances, the claimant has voluntarily left the workforce. Once an employer establishes retirement, a claimant must show that she is seeking employment after retirement or that she was forced into retirement because of her work-related injury. Henderson, 543 Pa. at 79, 669 A.2d at 913.
Here, the WCJ and the Board concluded that Employer did not meet its burden of proving that Claimant retired. We agree. Although Claimant accepted a disability pension, this alone is not enough to deduce that Claimant retired. See Robinson, 4 A.3d at 1137. In addition, Employer contends that Claimant conceded to signing the form indicating her desire to retire, which, in turn, is another circumstance that tends to prove that Claimant retired. (Employer's Brief at 16.) While an accurate statement, Claimant did not understand that her signature indicated a desire to retire. When asked if Claimant understood the significance of signing the form she stated, "No, I don't really understand it, because they told me—she just told me I would be getting a disability pension, the lady at the Board, so I signed it. I mean . . . ." (R.R. at 119a.) This statement does not indicate a desire to retire nor does it exhibit that Claimant understood the significance of accepting a pension. In fact, further testimony establishes that Claimant did not intend to retire. (R.R. at 58a.)
Finally, Employer contends that, although Claimant had the ability to work, she chose to not to work. As previously addressed and as evidenced by the WCJ and the Board, Claimant has limited literal skills that impaired her employment application process. Claimant's lack of employment does not indicate a desire to retire, but rather a lack of capacity to apply appropriately for positions. Moreover, Claimant expressed her desire to continue working in the labor market as well as her desire to keep her position with Employer. Based on the totality of circumstances in this case, Claimant did not voluntarily remove herself from the workforce and the Board did not err in its application of Robinson. Accordingly, the Board did not err in denying Employer's suspension petition.
Employer argues that the Board erred in applying an erroneous and overly onerous burden of proof to Employer. (Employer's Brief at 18.) Specifically, Employer argues that the WCJ and the Board applied an overly burdensome standard by requiring Employer to prove that Claimant intended to retire. (Id.) Employer's distinction is one without significance. Robinson requires an employer to prove, by a totality of circumstances, that the claimant has "chosen not to return to the workforce." Robinson, 4 A.3d at 1138. The WCJ's and the Board's conclusion that Employer failed to prove that Claimant intended to retire imposes no greater burden than Robinson. The WCJ and the Board did not require Employer to prove Claimant's mindset. Rather, the WCJ and the Board, looking at the totality of circumstances, determined that Employer failed to meet its burden of proving that Claimant retired.
Because we hold that Employer failed to prove, by a totality of the circumstances, that Claimant retired and the burden never shifted to Claimant, we need not address whether Claimant sought employment in good faith or was forced out of the entire workforce by her work-related injury. See Henderson, 543 Pa. at 79, 669 A.2d at 913. --------
We, therefore, affirm the order of the Board.
/s/_________
P. KEVIN BROBSON, Judge
ORDER
AND NOW, this 13th day of April, 2012, the order of the Workers' Compensation Appeal Board is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge