Opinion
No. 1025 C.D. 2011
03-08-2012
City of Pittsburgh (Police) and UPMC Benefit Management Services, Inc., Petitioners v. Workers' Compensation Appeal Board (Lewandowski), 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
Petitioners City of Pittsburgh (Police) and University of Pittsburgh Medical Center Benefit Management Services, Inc. (Employer) petition for review of an order of the Workers' Compensation Appeal Board (Board). The Board affirmed the decision of Workers' Compensation Judge Pamela Briston (WCJ), which dismissed Employer's petition to suspend the workers' compensation benefits of Anthony Lewandowski (Claimant). We reverse the order of the Board and remand.
Claimant was working for Employer as a police officer on May 9, 1995, when a truck owned by the fire department struck from behind the car in which Claimant was driving and forced Claimant's car into another vehicle. According to the WCJ's decision, Claimant began to receive benefits under the law commonly known as the Heart and Lung Act. By letter dated July 31, 1995, Claimant advised Employer that he was retiring from his pre-injury position as a Detective Second Grade for reason of a "service-connected disability." (Reproduced Record (R.R.) at 11a.) On that same date, Claimant applied to the Policemen's Relief and Pension fund of the City of Pittsburgh "to be retired on pension." (R.R. at 12a.) By virtue of a supplemental agreement dated August 1, 1995, Claimant's Heart and Lung Act benefits were converted to workers' compensation benefits. (WCJ Vallely Decision at 1; Bureau Ex. 1.) The supplemental agreement also reflected that, as of that date, Claimant was no longer in active duty, based upon his election to retire from his position. (Id.)
Act of June 28, 1935, P.L. 477, as amended, 53 P.S. §§ 637-38.
In October 1997, Employer filed a termination petition. On February 23, 1999, WCJ Kathleen Vallely denied Employer's petition to terminate Claimant's workers' compensation benefits. During the course of that proceeding, which is not before the Court for review, a WCJ concluded that Claimant's then medical expert, William Welch, M.D., testified credibly that Claimant had a history of neck and back pain that had become worse after Claimant's work-related injury. (Bureau Ex. 2 at 4, ¶ 8.) While diagnosing various conditions that pre-dated Claimant's work-related injury, Dr. Welch credibly opined that the 1995 accident caused Claimant to suffer from "intermittent S1 radiculapathy and exacerbated or aggravated [C]laimant's symptoms of back pain." (Id.) Dr. Welch recommended and performed back fusion surgery on Claimant on January 20, 1998. (Id. at ¶ 9.) The WCJ also accepted as credible Claimant's testimony that the 1995 accident significantly worsened his back pain. (Id. at 11.)
On May 18, 2009, Employer filed a notice of ability to return to work, which asserted that Claimant was capable of returning to work in a sedentary to light-duty capacity on a part-time basis, based upon an independent medical examination of Claimant conducted by Donald McGraw, M.D. On July 10, 2009, Employer also filed a petition to suspend Claimant's workers' compensation benefits, asserting that Claimant had voluntarily withdrawn from the workforce. Claimant filed a response to Employer's suspension petition denying that he had voluntarily withdrawn from the workforce and also denying that he is capable of sedentary or light-duty, part-time work.
By decision and order dated June 7, 2010, the WCJ denied Employer's suspension petition. In so doing, the WCJ issued factual findings derived largely from the testimony of the witnesses. The WCJ also included credibility determinations in her decision, finding Claimant's testimony credible and finding the testimony of Claimant's medical expert, Dr. King, more credible than the testimony of Employer's expert, Dr. McGraw. The WCJ further found that Employer failed to meet its burden of proof on the suspension petition, as follows:
7. Based upon thorough review of the evidence or records, I find that the Defendant has not met its burden of proof on the Suspension Petition.
a. I find the Claimant credible that his back pain has worsened since his 1998 fusion surgery. I note that the Claimant takes Vicodin and Oxycodone for his back complaints.
b. I accept the opinions of Dr. King as more credible than the opinions of Dr. McGraw. As the treating physician Dr. King had more opportunities to evaluate the client. I accept Dr. King's opinion that with respect to claimant's functional assessment it would be difficult for claimant to
work in a setting outside of the home in any significant capacity because of his pain. I note as credible her testimony that claimant uses narcotics medications for his work injury.
c. I accept her opinion that the claimant's work-related injury is going to remain the same or worsen. I note as the treating doctor she has had many opportunities to evaluate the claimant and follow his back condition for over the past several years.
8. Based upon the above credibility determination, I conclude that the Employer has failed to meet its burden on the Suspension Petition.(WCJ's decision at 9.) Other than the above findings, the WCJ did not engage in any further legal analysis of the burden of proof or how Employer failed to satisfy its burden.
Employer appealed the WCJ's decision to the Board, challenging whether substantial, competent evidence exists of record to support the WCJ's findings of fact, and claiming that the WCJ's decision fails to satisfy Section 422 of the Workers' Compensation Act (Act). The Board affirmed the WCJ's decision, concluding that credible testimony established that "it would be difficult for Claimant to work outside the home in any significant capacity because of pain from his work injury," and that "claimant did not intend to voluntarily withdraw from the workforce, but was forced to withdraw due to his work injury." (Board's opinion at 6). For those reasons, the Board concluded that the WCJ did not err in dismissing Employer's suspension petition. Employer petitioned this Court for review.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 834.
On appeal, Employer argues that the WCJ failed to issue a reasoned decision pursuant to Section 422 of the Act when she failed to engage in a discussion of the legal rationale that she employed in concluding that Employer did not satisfy its burden of proof. Employer also argues that the Board erred in affirming the WCJ's decision because Dr. King's testimony regarding Claimant's inability to work was equivocal and incompetent, and, therefore, Dr. King's testimony does not constitute substantial evidence on which the WCJ could rely. Finally, Employer argues that the Board erred as a matter of law in affirming the WCJ's denial of Employer's suspension petition when the totality of the circumstances suggest that Claimant elected to retire and did not seek work after he retired.
Our standard of review in a workers' compensation appeal is limited to determining whether an error of law was committed, whether constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704. We acknowledge our Supreme Court's decision in Leon E. Wintermyer, Inc. v. Workers' Compensation Appeal Board (Marlowe), 571 Pa. 189, 812 A.2d 478 (2002), wherein the Court held that "review for capricious disregard of material, competent evidence is an appropriate component of appellate consideration in every case in which such question is properly brought before the court." Wintermyer, 571 Pa. at 203, 812 A.2d at 487.
We begin by addressing Employer's claim that Dr. King's testimony as to Claimant's inability to work was equivocal and incompetent, and, therefore, not competent. "Competency when applied to medical evidence is merely a question of whether a witness's opinion is sufficiently definite and unequivocal to render it admissible." Cerro Metal Prods. v. Workers' Comp. Appeal Bd. (Plewa), 855 A.2d 932, 937 (Pa. Cmwlth. 2004), appeal denied, 582 Pa. 678, 868 A.2d 1202 (2005). Where medical testimony is required relating to causation, it must be unequivocal to support an award. Haney v. Workmen's Comp. Appeal Bd., 442 A.2d 1223 (Pa. Cmwlth. 1982). The question of competency of the evidence is one of law and fully subject to appellate review. Id. "Medical evidence is unequivocal if the medical expert, after providing a foundation, testifies that in his medical opinion he believes or he thinks the facts exist." Armco, Inc. v. Workmen's Comp. Appeal Bd. (Carrodus), 590 A.2d 827, 829 (Pa. Cmwlth.), appeal denied, 529 Pa. 636, 600, A.2d 995 (1991).
Our Supreme Court has held that the medical witnesses' entire testimony must be reviewed and taken as a whole, and a final decision should not rest upon a few words taken out of context of the entire testimony. Farquhar v. Workmen's Comp. Appeal Bd. (Corning Glass Works), 515 Pa. 315, 327, 528 A.2d 580, 586 (1987). "While an expert may base his opinion on facts of which he has no personal knowledge, those facts must be supported by evidence of record." Newcomer v. Workmen's Comp. Appeal Bd. (Ward Trucking Corp.), 547 Pa. 639, 647, 692 A.2d 1062, 1066 (1997). Inaccurate information will not defeat an expert's opinion as long as the opinion is not dependent upon the inaccuracies. See Indus. Recision Svcs. v. Worker's Comp. Appeal Bd. (Farbo), 808 A.2d 994 (Pa. Cmwlth. 2002). In other words, a medical expert's opinion is not rendered incompetent unless it is solely based on inaccurate or false information. Casne v. Workers' Comp. Appeal Bd. (Stat Couriers, Inc.), 962 A.2d 14, 16 (Pa. Cmwlth. 2008). Such inconsistencies go to the weight and credibility of the evidence, not its competency. Id. at 17.
Employer essentially argues that Dr. King's testimony is equivocal because she testified that Claimant would have a difficult time working outside of his home, but also testified that activity improves Claimant's condition. In addition, Dr. King was unaware of some of the activities in which Claimant had been engaging, she did not perform an assessment of Claimant's functional capabilities, and she was unable to testify as to whether Claimant could perform the functions of a position within the restrictions outlined by Dr. McGraw. For these reasons, Employer maintains that Dr. King's testimony was not competent.
A review of Dr. King's testimony reveals that she is board certified in internal medicine and palliative medicine and that she began treating Claimant in August 2008, when she took over his care from another physician. (R.R. at 37a-38a). She treated Claimant "for back pain related to a previous work injury in the setting of multiple myeloma." She understood that Claimant had suffered a work injury and undergone surgery to correct damage to his spine, but that he continued to have significant pain in his back, which she managed with chronic narcotic therapy, e.g. Vicodin and OxyContin. During an examination in 2008, Dr. King observed that Claimant's overall medical condition was "quite good" and that he had strength and function is his lower extremities, but that he had tenderness and tightness over his posterior ischial tuberosity area. (R.R. at 40a-41a.) Dr. King discussed Claimant's functional status, including how he spent time in Florida and was not able to do as many activities as he would like due to pain, but that he remained active when he could. (Id.) Dr. King testified that in October 2008, Claimant underwent an MRI of his spine due to the persistence of the pain. (R.R. at 42a.) The MRI showed evidence of his previous fusion at the L5-S1 region, degenerative changes through the lumbar sacral spine region, and changes to his bone marrow as a result of the myeloma. (Id.)
Dr. King explained that Claimant had been diagnosed with multiple myeloma in 2002, received aggressive treatment, and was without active disease for a number of years thereafter. (R.R. at 39a-40a.) In the last year or two, Claimant has experienced some recurrence of the disease, for which he was being monitored. (Id.)
Dr. King also testified that she saw Claimant in June 2009. (R.R. at 43a.) At that time, Claimant's pain persisted and his condition was somewhat exacerbated, "as he had just returned from Florida and was settling back into his home here which was having him do increased activity which caused worsening of the pain." (Id.) As a result, Dr. King increased Claimant's pain medication. (R.R. at 44a.) Dr. King noted that Claimant's pain medications are "sedating medications," which often impair a person's concentration when they initiate or have an increase in their dose. (R.R. at 45a.)
As to Claimant's prognosis, Dr. King testified that, although Dr. Garrett performed a full initial functional status evaluation, she assesses Claimant's function at each visit. (R.R. at 46a.) She noted that Claimant describes being quite limited in his daily activities and "spends much of his time in a sedentary status." (Id., emphasis added.) She opined that "it would be difficult for [Claimant] to work in a setting outside of his home in any significant capacity because of his pain." (Id.) She has not seen any improvement over the time that she has followed his care, and she noted that Claimant's condition "tends to be exacerbated intermittently based on various factors," which are "somewhat unpredictable." (Id.) Dr. King further opined that Claimant's condition will "stay as bad or worse than it is currently." (Id.)
It appears that Dr. King may have misspoken, and that she likely meant to refer to Dr. McGraw.
On cross-examination, Dr. King acknowledged that Claimant is generally adapted to pain medications and drives a vehicle, but she also commented that Claimant describes being sedated and sleepy during the day. (R.R. at 49a-50a.) Dr. King also acknowledged a June 2009 office note, which indicated that "[d]uring his time in Florida, [Claimant] did fairly well. He was somewhat limited in in his activities but was able to do some fishing and be active with his peers." (R.R. at 51a.) She explained, however, that Claimant is able to function and engage in his activities of daily living "in a limited capacity." (Id.) After Employer's counsel described to Dr. King certain household functions that Claimant testified he could perform, Dr. King agreed that Claimant "is not completely and totally incapacitated." (Id.) She further explained, however, that not having seen Claimant's testimony and not having spoken to him about those particular activities and without knowing the length of time he can perform those activities, she could not "describe what his work capacity is." (R.R. at 52a, emphasis added.) Dr. King testified that she has not assessed whether or to what extent Claimant could perform jobs such as being a greeter at Walmart or hotel/motel clerk where he could sit or stand, but she counters that Claimant lays down throughout the day for his comfort. (R.R. at 52a-53a.) Dr. King agreed that Claimant is initially stiff when he wakes up in the morning, and his back loosens up as the day progresses. (R.R. at 54a.) She acknowledged reading a note that while in Florida, Claimant's wife engaged him in walking more and he attempted kayaking, which he described as actually helping him. (R.R. at 54a-55a.)
A careful review of the testimony reveals that Dr. King's testimony, to the extent that the WCJ relied upon it to find that Claimant's work injury caused him to be unable to perform jobs outside his home, is incompetent. Dr. King's testimony, when considered in its entirety, is not "sufficiently definite and unequivocable" as to Claimant's inability to work. To the contrary, Dr. King testified that it would be "difficult" for Claimant to work outside the home, but she did not testify that Claimant is "unable" to work outside the home. (R.R. at 46a.) Although she acknowledged that Claimant can perform a variety of functions in a limited capacity, she neither identified any functions that Claimant cannot perform nor did she identify any activities that Claimant can perform with limitations. Moreover, Dr. King acknowledged that she did not perform any assessment regarding whether Claimant would be able to perform any jobs, including sedentary jobs within the restrictions outlined by Employer's expert, and could not opine about his capabilities. (R.R. at 52a-53a.) Therefore, Dr. King's testimony is incompetent to support a finding that Claimant cannot perform any work outside the home. To the extent that the WCJ relied upon this testimony in rendering her findings of fact and conclusions of law, such reliance was in error. As a result, we must remand so that the WCJ may issue new findings of fact and conclusions of law, without consideration of Dr. King's testimony on the issue of Claimant's inability to work.
Even if we were to conclude that Dr. King's testimony is competent, we note that her testimony is insufficient to support a finding that Claimant cannot perform work outside the home, because Dr. King testified only that such work would be "difficult" for Claimant. (R.R. at 46a.)
We also must remand the matter because the WCJ failed to issue a reasoned decision pursuant to Section 422 of the Act. Section 422 of the Act provides, in pertinent part, as follows:
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 decision 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. Uncontroverted evidence may not be rejected for no reason or for an
irrational reason; the [WCJ] must identify that evidence and explain adequately the reasons for its rejection. The adjudication shall provide the basis for meaningful appellate review.(Emphasis added.) In Daniels v. Workers' Compensation Appeal Board (Tristate Transport), 574 Pa. 61, 828 A.2d 1043 (2003), our Supreme Court ultimately held that a reasoned decision is one that "allows for adequate review by the [Board] without further elucidation and if it allows for adequate review by the appellate courts under applicable review standards. A reasoned decision is no more, and no less." Id. at 76, 828 A.2d at 1052.
We note that the WCJ concluded that Employer did not satisfy its burden of proof with regard to its suspension petition. Generally, in a suspension petition, an employer must: (1) demonstrate through the submission of credited medical evidence that a claimant has recovered some or all of his ability or some change in his condition; and (2) produce evidence that it referred the claimant to a then-available job for which the claimant has been given medical clearance. Kachinski v. Workmen's Comp. Appeal Bd. (Vepco Constr. Co.), 516 Pa. 240, 252, 532 A.2d 374, 380 (1987). After an employer makes such a demonstration, a claimant must show that he followed through on the job referral in good faith. Id. If the claimant establishes that he did act in good faith, he remains entitled to benefits. Id. Alternatively, an employer may establish its right to suspension or modification by demonstrating a claimant's earning power "through expert opinion evidence including job listings with employment agencies, agencies of the Department of Labor and Industry, and advertisements in a claimant's usual area of employment." City of Pittsburgh and UPMC Benefit Mgmt. Serv., Inc. v. Workers' Comp. Appeal Bd. (Robinson), 4 A.3d 1130, 1134 (Pa. Cmwlth. 2010) (Robinson), appeal granted in part, ___ Pa. ___, 17 A.3d 917 (2011). By contrast, where a claimant has accepted a retirement pension, for which he has become eligible by reason of age and years of service, there is a presumption that the claimant has withdrawn from the workforce. Southeastern Pennsylvania Transportation Authority v. Workmen's Compensation Appeal Board (Henderson), 543 Pa. 74, 669 A.2d 911 (1995) (holding that claimant collecting social security and retirement pension must have disability compensation suspended because he voluntarily left labor market). In other words, "an employer is not required to prove the availability of suitable work when a claimant voluntarily removes himself from the labor market through retirement." Day v. Workers' Comp. Appeal Bd. (City of Pittsburgh), 6 A.3d 633, 637 (Pa. Cmwlth. 2010) (citing Henderson, 543 Pa. at 79, 669 A.2d at 913. "In order to prove that a claimant has retired . . . the 'employer must show, by the totality of the circumstances, that the claimant has chosen not to return to the workforce.'" Day, 6 A.3d at 639, citing Robinson, 4 A.3d at 1138. As we stated in Day, when a claimant voluntarily retires, a "claimant has the burden of showing either that his work-related injury has forced him out of the entire workforce or that he is looking for work after retirement." Day, 6 A.3d at 637. A claimant's receipt of a disability pension is one circumstance that may support a conclusion that a claimant has retired for the purposes of the Henderson standard, but receipt of a pension alone is not determinative because one must examine the totality of the circumstances. Robinson, 4 A.3d at 1137.
In the case now before the Court, we are unable to discern the WCJ's rationale for the decision or the manner in which the WCJ reached her result, as the WCJ failed to make a necessary factual finding and provide any explanation as to the analysis employed. We cannot determine whether the WCJ considered Claimant's retirement in her analysis. When a claimant has "retired," a WCJ must determine the nature of the retirement in order to apply the correct burden of proof. Here, although the WCJ summarized testimony regarding Claimant's retirement, the WCJ failed to make any finding regarding whether Claimant voluntarily accepted retirement or was forced into retirement from the entire workforce due to his work injury. Such a finding is necessary in order to determine the burden of proof to be applied. In addition to being unable to discern a factual finding regarding the nature of Claimant's retirement, we are unable to discern from the WCJ's decision the burden of proof that the WCJ applied. For those reasons, we must remand the matter so that the WCJ may issue a reasoned decision pursuant to Section 422 of the Act.
Despite the lack of necessary findings and any analysis of the burden employed, the Board appears to have reviewed the testimony and filled in the gaps with its own factual findings and applied the burden of proof that was appropriate based on those findings. "[I]t has long been recognized that the WCJ has the exclusive authority to make findings of fact and credibility determinations." Daniels, 574 Pa. at 61, 828 A.2d at 1043. The Board exceeds its authority when it makes its own findings of fact. See Keene v. Workers' Comp. Appeal Board (Ogden Corp.), 212 A.3d 243 n.5 (Pa. Cmwlth. 2011). Thus, the Board in the matter now before us exceeded its authority when it essentially engaged in fact finding in order to review the WCJ's decision.
Accordingly, we reverse the order of the Board, and we remand the matter to the Board with instruction that the Board remand the matter to the WCJ for issuance of a new decision and order consistent with this Opinion.
Because we are remanding this matter so that the WCJ may issue new findings of fact and conclusions of law, we need not address Employer's argument that the Board erred as a matter of law in affirming the WCJ's denial of Employer's suspension petition when the totality of the circumstances suggest that Claimant elected to retire and did not seek work after he retired.
/s/_________
P. KEVIN BROBSON, Judge
ORDER
AND NOW, this 8th day of March, 2012, the order of the Workers' Compensation Appeal Board (Board) is REVERSED, and the matter is REMANDED to the Board with instruction that the matter be remanded to the Workers' Compensation Judge for the issuance of factual findings and conclusions of law in accordance with the attached Opinion.
Jurisdiction relinquished.
/s/_________
P. KEVIN BROBSON, Judge BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED CONCURRING OPINION BY JUDGE McCULLOUGH
Although I agree with the Majority that a remand is necessary in order for the workers' compensation judge (WCJ) to issue findings and conclusions concerning the circumstances attending Anthony Lewandowski's (Claimant) retirement, I write separately because I disagree with the Majority's analysis.
On July 10, 2009, the City of Pittsburgh (City) and UPMC Benefit Management Services, Inc. (together, Employer) filed a suspension petition alleging that Claimant had voluntarily withdrawn from the workforce when he retired from the police force on July 31, 1995. Alternatively, Employer sought a suspension of benefits as of May 18, 2009, asserting that Claimant was informed by way of a Notice of Ability to Return to Work that he was capable of returning to some type of employment as of that date. The petition specifically requested a hearing to determine whether Claimant's work injury forced him to retire from the entire labor market or, if not, whether Claimant has voluntarily withdrawn from the workforce. (R.R. at 1a-3a.) Inexplicably, the WCJ's decision does not address those issues.
Relevant to the issue of his retirement, Claimant testified that he returned to light duty work after the work injury but was not able to return to full duty. Claimant stated he was informed by the City that, under the terms of the applicable collective bargaining agreement, if he could not return to full duty he had to retire. (R.R. at 23a.) On July 31, 1995, Claimant wrote a letter to the acting director of public safety stating that he was retiring effective August 1, 1995, and adding that "[t]his is a service-connected disability." (R.R. at 11a.) Claimant, who was fifty years old at the time, testified that he receives a reduced pension. (R.R. at 21a.) Claimant also testified that he has not worked since August 1, 1995. (R.R. at 23a.) He said that he moved to Florida in February 2000 because the weather bothers his back and that he returns to Pittsburgh during the summer months for medical treatment. (R.R. at 21a, 30a-32a.) In 2007, when he turned 62, Claimant registered for Social Security benefits. (R.R. at 21a.)
Claimant testified that he suffered a fractured vertebra in his lower back when his vehicle was stopped at a red light and was rear-ended by a four-wheel drive truck operated by the City's fire department. (R.R. at 22a.)
As to his present physical condition, Claimant testified that he had surgery in 1998 during which "cages" were put in and a bone was taken from his hip and inserted into his back. (R.R. at 23a.) Claimant said he discussed different procedures with other surgeons but was ruled out as a candidate because he was too thin. (R.R. at 24a-25a.) Claimant stated that he and his wife drive to Pittsburgh every summer so he can see his doctors for ongoing pain medication. (R.R. at 26a.) Claimant testified that has been taking pain medication since 1995 and that he presently takes Oxycodone and Vicodin, which do not relieve his pain entirely but make it bearable. (R.R. at 27a-28a.)
Both parties presented expert medical testimony. Employer relied on the opinion of Donald J. McGraw, M.D., who examined Claimant on May 5, 2009. Based on his review of Claimant's medical records and his physical examination, Dr. McGraw concluded that Claimant is capable of part-time sedentary to light duty work. In rebuttal, Claimant offered the opinion of Linda King, M.D., who took over Claimant's pain management treatment in 2008. Dr. King agreed that Claimant is not completely and totally incapacitated due to the 1995 work injury, but she opined that it would be difficult for Claimant to work in a setting outside the home in any significant capacity because of his pain.
In her June 7, 2010, decision, the WCJ accepted Claimant's testimony that his back pain has worsened since his 1998 surgery. (WCJ's Finding of Fact 7a.) She also found the opinions of Dr. King to be more credible than those of Dr. McGraw, particularly noting Dr. King's testimony that Claimant's pain would make it difficult to work outside the home and that his condition is not going to improve. (WCJ's Findings of Fact Nos. 7a-7b.) Based on those credibility determinations, but without addressing whether Claimant had voluntarily withdrawn from the workforce, the WCJ concluded that Employer failed to meet its burden of proof in the suspension proceeding. (WCJ's Finding of Fact No. 8.)
Employer appealed to the Board, alleging that: the WCJ's Findings of Fact No. 6 (a summary of Dr. King's testimony) and No. 7 (credibility determinations) are not supported by substantial evidence; the WCJ's decision is not reasoned as required by section 422 of the Workers' Compensation Act; and the WCJ erred in placing the burden of proof on Employer instead of Claimant where Claimant had retired. Further, citing Southeastern Pennsylvania Transportation Authority v. Workmen's Compensation Appeal Board (Henderson), 543 Pa. 74, 669 A.2d 922 (1995), and County of Allegheny v. Workers' Compensation Appeal Board (Weis), 872 A.2d 263 (Pa. Cmwlth 2005), Employer argued that Dr. King's testimony is equivocal and insufficient to satisfy Claimant's burden to prove that his work injury rendered him incapable of performing any and all work. (R.R. at 6a-9a.)
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §834.
Initially, the Board correctly set forth the relevant law, as follows:
Generally, in order to obtain a suspension of benefits, the employer must either refer the claimant to an available position or establish the claimant's earning power through expert opinion evidence. City of Pittsburgh v. WCAB (Robinson), 4 A.3d 1130 (Pa. Cmwlth. 2010); Day v. Workers' Compensation Appeal Board (City of Pittsburgh), 6 A.3d 633 (Pa. Cmwlth. 2010). In cases of voluntary retirement, the employer still bears the burden of proving that the claimant is no longer suffering from a loss of earning power. Id. However, the employer meets this burden, not by using the Kachinski or Section 306(b)(2) standards, but by showing by the totality of the circumstances that the claimant has chosen not to return to the workforce. Id.(Board's opinion at 3.) As the Board further observed, circumstances that could demonstrate that a claimant voluntarily withdrew from the workplace include: (1) there is no dispute that the claimant has retired; (2) the claimant's receipt of a retirement pension; or (3) the claimant's acceptance of a pension and refusal of suitable employment. Day. Only after the employer has satisfied its burden to show, by the totality of the circumstances, that the claimant has chosen not to return to the workforce, does the burden shift to the claimant to show that he was forced to withdraw from the labor market by his work injury or that he is still looking for work. Id. As we recently clarified in Day and Robinson, the voluntary receipt of a pension alone does not necessarily bar a claimant from receiving benefits.
Kachinski v. Workmen's Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A2d 374 (1987). --------
Although the Board recognized the applicable analysis, the Board overlooked the WCJ's failure to issue findings necessary to apply that analysis. Instead, the Board determined that the credible testimony of Claimant and Dr. King "established that Claimant did not intend to voluntarily withdraw from the workforce, but was forced to withdraw due to his work injury." (Board's opinion at 6.) Because only the WCJ is empowered to determine matters of witness credibility and evidentiary weight, I agree with the Majority's observation that the Board exceeded its authority in this case. (Majority op. at 13 n. 8.) Moreover, because the WCJ made no findings as to whether - and if so, when - Claimant voluntarily removed himself from the workforce, the WCJ's decision is inadequate for purposes of appellate review. Thus, I agree with the Majority that the Board erred in affirming the WCJ's decision and that a remand is necessary to decide the issues raised by Employer's petition.
However, unlike the Majority, I would not address whether Dr. King's testimony is competent to satisfy Claimant's burden because the WCJ has yet to determine whether Employer met its burden, under a totality of the circumstances, to show that Claimant voluntarily removed himself from the workforce. There is no question that Employer eliminated Claimant's modified job, or that Claimant's separation from employment with the City's police force was not voluntary. Thus, I recognize that Claimant's acceptance of a pension at the time of his separation is only part of the "totality of the circumstances" analysis and may not be sufficient to persuade the WCJ that Claimant voluntarily removed himself from the workforce in 1995. In that case, there would be no shifting of burdens, and Employer would not have established that it is entitled to a suspension effective July 1995, as it requests.
Employer alternatively requests suspension based on the May 5, 2009, independent medical examination of Dr. McGraw. However, the WCJ accepted Claimant's testimony that his back pain has worsened since his 1998 surgery. As a matter of law, Claimant's testimony was sufficient to rebut Employer's medical evidence. Campbell v Workers' Compensation Appeal Board (Antietam Valley Hosp.), 705 A.2d 503 (Pa. Cmwlth. 1998). Indeed, we have repeatedly held that a WCJ can give more credence to a claimant's testimony regarding incapacitating pain than to a doctor's medical opinion. Victor's Jewelers v. Workmen's Compensation Appeal Board (Bergelson), 604 A.2d 1127 (Pa. Cmwlth.1992). Thus, it is well settled that a claimant's testimony of such pain, where it is found credible by the WCJ, can support a finding of continuing disability. Campbell. Under these circumstances, whether Dr. King unequivocally testified that Claimant was not capable of any kind of work as of May 5, 2009, is completely immaterial.
Accordingly, I agree that a remand is warranted here. However, to the extent that the Majority's lengthy examination of Dr. King's testimony suggests that Dr. King's opinions are critical to the resolution of this case, I object to the Majority's analysis.
/s/_________
PATRICIA A. McCULLOUGH, Judge