Opinion
No. 622 C.D. 2011
02-10-2012
City of Pittsburgh (Police) and UPMC Benefits Management Services, Inc., Petitioners v. Workers' Compensation Appeal Board (Woods), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
This case was assigned to the opinion writer before January 7, 2012, when Judge Pellegrini became President 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 the disability benefits of Leslie Woods (Claimant). In doing so, the Board affirmed the decision of the Workers' Compensation Judge (WCJ) that Claimant is entitled to ongoing disability benefits because she did not voluntarily remove herself from the workforce. Finding no error, we affirm.
In May 1992, Claimant injured her left shoulder while doing her job as a police officer. Claimant underwent surgery and Employer gave her a light-duty clerical job in the warrant office. While at work on January 3, 2000, Claimant further injured her left shoulder. Claimant continued working until Employer approved her for a disability pension on April 13, 2000.
It is not clear from the record how or when Employer accepted liability for this injury, but apparently it did so.
Because Employer did not issue a notice of compensation payable for the 2000 injury, Claimant filed a claim petition. In an August 2002 decision and order, the WCJ found that Claimant sustained a left shoulder rotator cuff tear in January 2000 and granted the claim petition. The WCJ ordered Employer to pay ongoing total disability benefits as of April 13, 2000, with an offset for Claimant's pension benefits.
On September 6, 2007, Claimant attended an independent medical examination (IME) with Nasimullah Rehmatullah, M.D. Dr. Rehmatullah released Claimant to do modified-duty work and Employer provided Claimant with a Notice of Ability to Return to Work.
On October 15, 2007, Employer filed a suspension petition alleging that Claimant was no longer entitled to disability benefits because she was capable of working but had voluntarily removed herself from the workforce by failing to look for employment. Claimant denied the allegations. The petition was assigned to the WCJ, who held a series of hearings.
Claimant filed a review petition to add low back to the description of the work injury. The WCJ granted this petition and it is not at issue on appeal.
In support of its petition, Employer presented the deposition testimony of IME physician, Dr. Rehmatullah, a board certified orthopedic surgeon. Based on Claimant's history, a review of medical records and the physical examination, Dr. Rehmatullah diagnosed Claimant with shoulder impingement syndrome, which limited her range of motion. Dr. Rehmatullah opined that Claimant had reached maximum medical improvement and was capable of performing a full-time clerical job, such as the warrant office job, with restrictions on lifting and overhead reaching.
Employer also presented the deposition testimony of Victor J. Thomas, M.D., a board certified orthopedic surgeon who performed an IME on May 6, 2008. Like Dr. Rehmatullah, Dr. Thomas felt that Claimant could do modified-duty work with restrictions on lifting and overhead use.
Claimant testified live before the WCJ in opposition to Employer's suspension petition. After sustaining her January 2000 shoulder injury, Claimant worked her light-duty warrant office job until April 2000 when she "could no longer stand the pain" and her doctor took her out of work. Reproduced Record at 34a (R.R. ___). At that point, she began collecting a disability pension. Claimant's pain has increased over time and she has not worked since leaving her light-duty position with Employer. Claimant has not applied for any jobs because she does not believe she can work at all. Claimant testified that she considers herself disabled, not retired.
Claimant presented the deposition testimony of her treating physician, Henry A. Bakkila, M.D., who is board certified in family medicine. Dr. Bakkila diagnosed Claimant with a rotator cuff tear and adhesive capsulitis. Claimant's symptoms are left shoulder tenderness and diminished range of motion. Dr. Bakkila recalled testifying in the claim petition litigation that Claimant was disabled from her warrant office job because she could only perform the required duties for short periods of time. Dr. Bakkila explained that he continued to hold that opinion. Claimant can do only simple tasks and must change positions frequently. Claimant is precluded from doing sedentary work on a full-time basis. Dr. Bakkila opined that Claimant could do sedentary work "on some days" but was not sure what Claimant could do on bad days, noting that Claimant's left shoulder greatly limits even her activities of daily living. R.R. 161a. Dr. Bakkila testified that a work hardening program would ascertain Claimant's abilities.
A "work hardening" program is a physical therapy program designed to reproduce a patient's day-to-day job duties, thus acclimating and evaluating the patient for a potential return to work.
The WCJ denied Employer's suspension petition. The WCJ noted that Claimant had credibly testified in the earlier claim petition litigation that she could not perform the job in the warrant office even on a part-time basis because of her shoulder pain. The WCJ accepted as credible the testimony of Claimant and Dr. Bakkila in the current proceeding over that of Dr. Rehmatullah and Dr. Thomas. Specifically, the WCJ credited Claimant's testimony regarding the chronic nature of her left shoulder pain. The WCJ also found that Dr. Bakkila's credible testimony establishes that there has been no improvement, and, if anything, a worsening of Claimant's left shoulder condition since 2000.
The WCJ is the ultimate fact finder and has complete authority over questions of credibility. Davis v. Workers' Compensation Appeal Board (City of Philadelphia), 753 A.2d 905, 909 (Pa. Cmwlth. 2000).
The WCJ found that Claimant took the disability pension because of her left shoulder work injury and that she has not looked for any work because her work injury continues to disable her from pursuing any employment. Therefore, Claimant did not voluntarily remove herself from the workforce, and Employer failed to meet its burden of proof for obtaining a suspension.
Employer appealed, and the Board affirmed. The Board determined that Claimant accepted a disability pension because she was incapable of performing the time-of-injury job and that Claimant's work injury forced her to withdraw from the entire workforce. Employer then petitioned for this Court's review.
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. City of Philadelphia v. Workers' Compensation Appeal Board (Brown), 830 A.2d 649, 653 n.2 (Pa. Cmwlth. 2003).
On appeal, Employer presents one issue for our consideration. Employer argues that the WCJ and the Board erred in concluding that Claimant was forced to withdraw from the entire workforce when her own medical expert testified that she was capable of performing part-time sedentary work. Because Claimant could work, but chooses not to, Employer is entitled to a suspension of her disability benefits.
To suspend a claimant's disability compensation, the employer must assist an injured employee by identifying the claimant's medical capabilities and available employment opportunities. South Hills Health System v. Workers' Compensation Appeal Board (Kiefer), 806 A.2d 962, 966 (Pa. Cmwlth. 2002). This is also the case where, as here, the claimant is collecting a disability pension. City of Pittsburgh v. Workers' Compensation Appeal Board (Robinson), 4 A.3d 1130, 1134 (Pa. Cmwlth. 2010), appeal granted, ___ Pa. ___, 17 A.3d 917 (2011). The fact of a disability pension is irrelevant to a suspension of benefits except where "it is clear from the totality of the circumstances" that the claimant has withdrawn from the workforce. Robinson, 4 A.3d at 1138 (emphasis added). The employer bears the burden of proving that the claimant has withdrawn from the workforce. Id.
Our Supreme Court has granted allocatur 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?
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, 79, 669 A.2d 911, 913 (1995) (holding that a claimant collecting social security and a retirement pension must have his disability compensation suspended because he has voluntarily left the labor market). However, the retired claimant may defend against a suspension of benefits by producing evidence that he is looking for a job that falls within his physical limitations or that the work injury has rendered him incapable of doing any job. County of Allegheny (Department of Public Works) v. Workers' Compensation Appeal Board (Weis), 872 A.2d 263, 265-266 (Pa. Cmwlth. 2005).
By contrast, there is no presumption that a claimant has withdrawn from the workforce, or "labor market," by accepting a disability pension. In that case, under Robinson, the employer must show that it has assisted the claimant in returning to the workforce, except where the "totality of the circumstances" shows that the claimant on a disability pension intends not to return to work. Robinson, 4 A.3d at 1138.
Here, Employer argues that in finding Claimant to be "unemployable" and forced out of the entire workforce, both the WCJ and the Board failed to consider Dr. Bakkila's testimony as a whole. Dr. Bakkila never opined that Claimant was unemployable. Although Dr. Bakkila was hesitant to say that Claimant could do full-time sedentary work, he opined that she could do part-time sedentary work. This testimony, Employer argues, shows that Claimant could work and simply chose not to, opting instead to withdraw from the workforce.
WCJ decision, January 7, 2009, at 4; Finding of Fact 5. --------
Employer mischaracterizes Dr. Bakkila's testimony. Dr. Bakkila's only specific mention of part-time work was as follows:
I would not clear [Claimant] to return to work full-time in any capacity without either a trial of sedentary work at a limited part-time basis or a work hardening kind of a program so that she could reproduce the demands of a new job day after day after day for a period of time rather than subject her to a situation where she's thrown into a job that she can't do consistently with subsequent worsening of her pain symptoms in her shoulder and elsewhere.R.R. 181a-182a. This is not a definitive release for Claimant to work a part-time job. Dr. Bakkila's testimony established that Claimant can do some work, on some days, but without work hardening he explained it was impossible to determine what job Claimant can do or how consistently she can do it. Contrary to Employer's assertion, Dr. Bakkila's testimony supports the WCJ's finding that Claimant is currently unemployable.
Employer ignores several critical facts. Claimant was disabled from her clerical warrant office job in April 2000. This is why Employer gave her a disability pension in the first place; Claimant testified in the claim petition litigation that she could not do the warrant office job even part-time. Dr. Bakkila's testimony supports the WCJ's finding that, today, Claimant's shoulder condition is even worse than before. Employer pursued a suspension based on Dr. Rehmatullah's opinion that Claimant could do something akin to the warrant office job, but it was found by the WCJ that she cannot.
In sum, Claimant took a disability pension because she was unable to do her light-duty job because of her work injury, and Dr. Bakkila has not released her to any specific job because he does not know her capabilities. Under the totality of circumstances test established in Robinson, Employer has not proven that Claimant intended to withdraw from the workforce. Accordingly, before it can suspend benefits, Employer must assist Claimant in returning to the workforce, which can begin with the work hardening program recommended by Dr. Bakkila.
Accordingly, the order of the Board is affirmed.
/s/_________
MARY HANNAH LEAVITT, Judge
ORDER
AND NOW, this 10th day of February, 2012, the order of the Workers' Compensation Appeal Board dated March 21, 2011, in the above captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge
Robinson, ___ Pa. ___, ___, 17 A.3d 917, 917-918 (2011).