Opinion
No. 816 C.D. 2011
02-08-2012
City of Pittsburgh and UPMC Benefit Management Services, Inc., Petitioners v. Workers' Compensation Appeal Board (Fouch), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
This case was assigned to the panel on or before January 6, 2012, when the President Judge completed her term.
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
City of Pittsburgh and UPMC Benefit Management Services, Inc. (together, Employer), petition for review of the order of the Workers' Compensation Appeal Board (Board), which affirmed the decision and order of the Workers' Compensation Judge (WCJ). In the decision and order, the WCJ denied Employer's petition to suspend compensation benefits (Suspension Petition) on the grounds that Employer failed to show that Thomas Fouch (Claimant) had voluntarily removed himself from the workforce. We affirm.
Our review is limited to determining whether an error of law was committed or whether the WCJ's findings of fact are not supported by substantial evidence. City of Pittsburgh v. Workers' Comp. Appeal Bd. (McFarren), 950 A.2d 358 (Pa. Cmwlth. 2008). The appellate role in a workers' compensation case is not to reweigh the evidence or review the credibility of witnesses, but to determine whether the WCJ's findings have the requisite measure of support in the record as a whole. Bethenergy Mines, Inc. v. Workmens' Comp. Appeal Bd. (Skirpan), 531 Pa. 287, 612 A.2d 434 (1992).
Claimant worked for Employer since 1974 as a medical first responder, firefighter, and, most recently, fire captain. Claimant sustained work-related injuries on March 13, 2004, when he was struck by bricks, mortar, and cement blocks falling from a collapsing church bell tower. Employer accepted liability and Claimant began receiving disability benefits under the act commonly known as the Heart and Lung Act, which converted to workers' compensation benefits on January 10, 2005, after Claimant accepted a disability retirement pension offered by Employer. At Employer's request, Dr. Jon B. Tucker, M.D., reviewed Claimant's medical records and performed an independent medical examination on September 2, 2008. Dr. Tucker determined that Claimant had achieved maximum medical improvement and released Claimant to full-time, light-duty work with certain movement restrictions to account for Claimant's permanent limitations. Based upon Dr. Tucker's release, Employer sent Claimant a Notice of Ability to Return to Work dated September 22, 2008 (Notice of Ability), which informed Claimant, inter alia, of his obligation to look for available employment. At about that time, Claimant began to search for and apply for jobs. The record contains copies of Claimant's fifteen job applications and Claimant's testimony regarding other applications. Employer filed a Suspension Petition on October 22, 2008, seeking to suspend Claimant's disability benefits because, according to Employer, Claimant was physically capable of working but had voluntarily removed himself from the workforce. Claimant filed a response denying the allegations.
Act of June 28, 1935, P.L. 477, as amended, 53 P.S. §§637-638.
The Suspension Petition was assigned to a WCJ, who denied Employer's claims following a series of evidentiary hearings. The WCJ accepted as credible Dr. Tucker's testimony that Claimant was capable of light-duty work. (R. Item 1, WCJ Decision, Finding of Fact (F.F.) ¶8b, Reproduced Record (R.R.) at 5a.) The WCJ also accepted the testimony of Claimant as credible at all times. (F.F. ¶8a, R.R. at 5a.) In particular, the WCJ accepted Claimant's testimony that he had been seeking employment within his restrictions since Dr. Tucker released him for work, and that Claimant had continued in good faith to search for and apply for multiple positions, as evidenced by his testimony and the job applications he submitted into evidence. (F.F. ¶8a-d, R.R. at 5a.) The WCJ also found that Employer at no time had offered Claimant any type of light-duty work following his injuries, despite Claimant's willingness to accept it. (F.F. ¶8a, R.R. at 5a.) Based on these findings, the WCJ concluded that Employer had failed to meet its burden of proof in the Suspension Petition. (R. Item 1, WCJ Decision, Conclusion of Law (C.L.) ¶1, R.R. at 6a.)
Employer appealed and the Board affirmed, applying City of Pittsburgh v. Workers' Compensation Appeal Board (Robinson), 4 A.3d 1130 (Pa. Cmwlth. 2010) (plurality op.), appeal granted, ___ Pa. ___, 17 A.3d 917 (2011), in which a plurality of this Court held that an employer seeking to suspend a retired employee's benefits must establish by the totality of the circumstances that the employee had chosen to withdraw himself from the workforce. The Board concluded that Employer had failed to meet its burden and, moreover, that Claimant's testimony, accepted by the WCJ, established that Claimant intended to return to the workforce after he received a medical release and Employer's Notice of Ability, and that Claimant was conducting a job search in good faith. Employer then appealed to this Court.
Our Supreme Court granted a petition for allowance of appeal in Robinson limited to the following issue:
Did the Commonwealth Court err by holding that, in a petition to suspend compensation benefits based upon an alleged voluntary withdrawal from the workforce, the employer bears the burden of showing by the totality of the circumstances that the claimant has chosen not to return to the workforce?
In general, to modify or suspend a claimant's benefits, an employer must establish job availability, either by referring the claimant to an available position within his or her medical restrictions, Kachinski v. Workers' Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987), or by establishing the claimant's earning power pursuant to Section 306(b)(2) of the Workers' Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §512(2). Robinson, 4 A.3d at 1134. When the claimant has retired and voluntarily left the labor market, however, benefits must be suspended and "[t]he mere possibility that a retired worker may, at some future time, seek employment does not transform a voluntary retirement from the labor market into a continuing compensable disability." Se. Pa. Transp. Auth. v. Workmens' Comp. Appeal Bd. (Henderson), 543 Pa. 74, 79, 669 A.2d 911, 913 (1995). If "circumstances subsequently change in fact, a claimant might then be entitled to yet another change in his disability status." Id.
In Robinson, 4 A.3d at 1137, a plurality of this Court held that a claimant's acceptance of a disability pension does not establish a presumption that the claimant has retired or has chosen to withdraw from the workforce. Rather, the employer must show evidence to establish the claimant's intent by a totality of the circumstances, and it is the employer's burden to prove intent. By contrast, where a claimant has accepted a retirement pension, for which he has become eligible by reason of old age or years of service, there is a presumption that the claimant has withdrawn from the workforce. Id. at 1135-37. In Robinson, we offered several examples of circumstances that could support a holding that a claimant has retired: "(1) where there is no dispute that the claimant has 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." Id. at 1138. To continue to receive benefits after an employer establishes the claimant has voluntarily withdrawn from the workforce, the claimant must establish either "that he is seeking employment after retirement or that he was forced into retirement because of his work-related injury." Henderson, 543 Pa. at 79, 669 A.2d at 913; Robinson, 4 A.3d at 1134.
Although a plurality opinion is not precedential, it may nevertheless be persuasive. See Beaver v. Ortenzi, 524 A.2d 1022, 1025 (Pa. Cmwlth. 1987).
Employer states three Questions. We will discuss each in turn. First, Employer claims that the Board failed to recognize that the WCJ's decision was not "reasoned" and did not allow for "meaningful appellate review" because it "failed to discuss any cross-examination of Claimant relative to the burden of proof, which the WCJ erroneously applied and incorrectly placed on Employer." (Employer's Brief at 4, 24.) Employer argues that because Robinson was decided after the WCJ's decision, the WCJ erroneously placed the burden on Employer. Employer also argues that because Robinson was decided before the Board's decision, "the change in legal standard required [the Board to] remand to the WCJ." (Employer's Brief at 27 (emphasis added).) Employer is incorrect. As the party seeking to suspend Claimant's benefits, the burden was and is on Employer to prove its case. Such was the standard even before this Court's Robinson decision. Kachinski, 516 Pa. at 252, 532 A.2d at 350; Day v. Workers' Comp. Appeal Bd. (City of Pittsburgh), 6 A.3d 633, 641 (Pa. Cmwlth. 2010) (plurality) ("The initial burden in a suspension petition is always on the employer." (emphasis added)). The WCJ properly placed the burden on Employer. (C.L. ¶1 ("The employer has not met its burden of proof in the Suspension Petition."))
To the extent that Employer contends, as part of its first Question, that the findings of fact are not supported by the record, we address such contention in response to Employer's third Question.
The WCJ's decision and order was dated February 23, 2010, Robinson was decided on September 22, 2010, and the Board's opinion was dated April 6, 2011.
Further, changes in decisional law that occur during litigation will be applied to cases pending on appeal. McCloskey v. Workmens' Comp. Appeal Bd. (J.H. France Refractories), 501 Pa. 93, 98 n.3, 460 A.2d 237, 239 n.3 (1983). Thus, the Board properly applied the Robinson decision and found no factual deficiencies in the record produced before the WCJ. Employer, on appeal, does not identify any absent facts that should have required remand, nor does Employer cite any authority to support its assertion that the Board was "required" to remand the case when Robinson was decided. We find no error based on Employer's first Question.
Second, Employer claims that the Board "erred as a matter of law in finding Claimant's benefits should not be suspended, as Claimant admitted that he did not intend to work upon retirement and did not conduct a good faith job search." (Employer's Brief at 4, 28.) Employer relies on Henderson for the proposition that an employee who retires and voluntarily leaves the workforce cannot receive workers' compensation benefits. Although Employer's recital of the law set forth in Henderson is correct as it applies to a claimant who voluntarily removes himself from the workforce, Employer ignores this Court's Robinson decision, in which we set forth a test for determining when and under what circumstances a claimant can be found to have done so. Robinson, 4 A.3d at 1135 ("[W]hen is a claimant 'retired' such that Henderson and its progeny apply?"). Employer argues that the Board erred because Claimant testified that he "retired" when he accepted a disability pension from Employer. According to Employer, Claimant's statement that he "retired" establishes as a matter of law that Claimant intended to withdraw from the workforce. That is precisely the type of bright-line analysis a plurality of this Court discouraged in Robinson. Claimant's testimony that he "retired" must be examined in light of the totality of the circumstances, which is what the Board did. We find no error in the Board's analysis.
Third, Employer claims that the Board misapplied the Robinson totality of the circumstances inquiry. (Employer's Brief at 4, 32.) We find that the Board's decision is reasoned and supported by substantial evidence. Following Claimant's injury, he received benefits under the Heart and Lung Act, which converted to disability benefits after he accepted a disability pension. (R. Item 1, WCJ Decision at 1, R.R. at 3a; R. Item 3, Notice of Compensation Payable, R.R. at 17a-18a.) Claimant testified that he retired on January 5, 2005, when, because of his work injuries, he accepted the disability pension offered by Employer. (F.F. ¶7, R.R. at 5a; R. Item 11, Oct. 20, 2009 Hearing Transcript (Oct. 2009 H.T.) at 18, R.R. at 174a.) He also testified that, once medically permitted, he would have accepted light-duty work from Employer, but Employer never offered such a position. (F.F. ¶8a, R.R. at 5a; Oct. 2009 H.T. at 18, R.R. at 174a.) There is no evidence that Claimant chose a retirement pension. After receiving the Notice of Ability, or about one month before, Claimant began searching for and applying for jobs. (F.F. ¶¶8a-d, R.R. at 5a-6a.) Claimant's job search included signing up for employment assistance at Career Link (although he did not see any positions for which he was qualified), seeking assistance at the Office of Vocational Rehabilitation (OVR) and searching OVR's listings, searching for positions in newspapers, and going to actual places of employment to apply for work. (F.F. ¶¶7, 8d, R.R. at 4a-5a.) Claimant provided copies of fifteen job applications that he had actually submitted to employers and testified regarding other applications. (R. Item 5, Claimant's Job Applications, R.R. at 20a-68a.) The WCJ accepted Claimant's testimony as credible at all times and concluded that Employer had failed to show that Claimant voluntarily retired from the workforce. (F.F. ¶¶7, 8d, R.R. at 4a-5a.) The Board affirmed, applying Robinson. (R. Item 2, Board Opinion of April 6, 2011, at 6-8, R.R. at 13a-15a.)
Employer argues that the evidence does not support the WCJ's decisions, returning repeatedly to its argument that the WCJ ignored Claimant's cross-examination testimony that he intended to "retire" when accepting Employer's disability pension. We disagree. First, under Robinson, the evidence must be evaluated in its entirety, which is what the WCJ and the Board did. Second, the WCJ's Findings of Fact indicate that she was well-aware of Claimant's cross-examination testimony and weighed it with the other evidence. (F.F. ¶7, R.R. at 5a ("On cross-examination, he stated that he retired on January 5, 2005.")) In addition to testifying that he "retired," Claimant also testified that had Employer offered him light-duty work following his injury, which Employer did not do, he would have accepted it. The WCJ accepted this testimony, which was within her authority to do. Clear Channel Broad. v. Workers' Comp. Appeal Bd. (Perry), 938 A.2d 1150, 1156 (Pa. Cmwlth. 2007) ("Credibility determinations and the evaluation of evidentiary weight are within the province of the WCJ as the fact-finder. . . ."); Casne v. Workers' Comp. Appeal Bd. (Stat Couriers, Inc.), 962 A.2d 14, 19 (Pa. Cmwlth. 2008) ("Credibility determinations are more than a series of individual findings. Rather, they represent the evaluation of a total package of testimony in the context of the records as a whole. . . ."). Third, it is not clear, based on this record, whether Claimant meant he had "retired" from his time-of-injury position or that he had "retired" from the entire job market. Employer had the burden to establish the latter. Even when viewed standing alone, Claimant's testimony that he "retired" does not establish that Claimant intended to permanently withdraw himself from the workforce. Accordingly, we find no error in the Board's application of the Robinson test.
The record indicates that Claimant did not conduct any job search from the time he accepted a disability pension until Employer sent him the Notice of Ability, when Claimant began a good faith job search. On appeal to the Board, Employer strategically challenged the entirety of the WCJ's decision and did not argue for a partial suspension of Claimant's benefits. Thus, to the extent Employer seeks a partial suspension of Claimant's benefits from this Court, Employer has waived such an argument. Pa. R.A.P. 1551(a); Westmoreland County v. Pa. Labor Relations Bd., 991 A.2d 976, 987 (Pa. Cmwlth. 2010), appeal denied, ___ Pa. ___, 17 A.3d 1256 (2011). --------
Finally, Employer argues that Claimant's benefits should be suspended because he failed to conduct a job search in good faith. Specifically, Employer argues that although Claimant applied for jobs, on only some of his applications did Claimant indicate he was available for work on nights and weekends. The WCJ concluded, based on the details of Claimant's job search recited above, that Claimant was conducting a job search in good faith. (F.F. ¶8d, R.R. at 6a ("I find that the claimant has continued his job search in good faith, and therefore has not removed himself from the workforce.")) We find that the WCJ's finding was not in error and that it was supported by substantial evidence. Accordingly, were our Supreme Court to revisit the standard set forth in Robinson, our decision in this case would not be affected. See Henderson, 543 Pa. at 79, 669 A.2d at 913 (holding that a claimant who has voluntarily withdrawn from the workforce may rebut such finding by establishing either "that he is seeking employment after retirement or that he was forced into retirement because of his work-related injury"); Robinson, 4 A.3d at 1134.
For these reasons, we affirm the order of the Board.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 8th day of February, 2012, the order of the Workers' Compensation Appeal Board in the above-matter is affirmed.
/s/_________
JAMES GARDNER COLINS, Senior Judge
Robinson, ___ Pa. at ___, 17 A.3d at 917-18 (2011).