Opinion
No. 1593 C.D. 2014
07-23-2015
Consol Pennsylvania Coal Company, LLC/Enlow Fork Mine and East Coast Risk Management, Petitioners v. Workers' Compensation Appeal Board (Conkle), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Consol Pennsylvania Coal Company, LLC/Enlow Fork Mine and East Coast Risk Management (collectively, Employer) petition this Court for review of the Workers' Compensation (WC) Appeal Board's (Board) August 12, 2014 order affirming the Workers' Compensation Judge's (WCJ) decision denying Employer's Petition to Suspend the benefits of Roy Conkle (Claimant). The issues before the Court are (1) whether the WCJ's finding that Claimant did not voluntarily withdraw from the workforce is supported by substantial evidence, and (2) whether the WCJ erred in how he applied the totality-of-the-circumstances test and, thus, in his determination that Claimant did not voluntarily withdraw from the workforce. After review, we affirm.
On November 4, 2008, Claimant was injured when he was struck by a fast-moving cable and knocked to the floor of the Enlow Fork Mine while working for Employer. A notice of compensation payable was issued acknowledging Claimant's injury as a cervical/thoracic/left shoulder strain, and listing a compensation rate of $807.00 per week based on an average weekly wage of $1,828.92. On January 20, 2010, Employer issued a notice of benefit offset reflecting Claimant's receipt of employer-funded pension benefits. On February 10, 2011, Employer issued a notice of change of disability status which altered Claimant's status from total to partial disability effective January 24, 2011.
On September 20, 2011, Employer sent Claimant a Notice of Ability to Return to Work (NARW) informing Claimant that Thomas Kramer, M.D. (Dr. Kramer) had determined that Claimant was capable of performing medium-duty work as of August 8, 2011. On November 18, 2011, Employer filed a suspension petition alleging that Claimant had voluntarily withdrawn from the workforce as of June 1, 2009. Claimant filed a response denying that he had voluntarily withdrawn from the workforce.
Several WCJ hearings were held between January 13, 2012 and October 22, 2012. Claimant testified before the WCJ that, at the time of his injury, he had worked for Employer for more than 27 years. Claimant reported that he underwent a cervical fusion as a result of his work-related injury. Claimant further related that he has not returned to work since he was injured. He explained that he decided to retire because his back pain was getting worse and he believed he would be unable to perform the same kind of work. Claimant stated that his decision was further impacted by a conversation he had with Employer's safety director, during which the safety director informed Claimant that Employer was aware Claimant was having disc problems and did not want Claimant to return with those problems. Claimant also testified that he applied for a retirement pension in July of 2009 because he believed Employer would discharge him since he had not worked for a year and, if he did not retire, he would lose his family's medical insurance. Claimant noted that he has not received treatment for his work-related injury since October 2010, because he had been taking pain medication and did not want to take any more. In addition, he explained that he was trying to care for himself. He further recounted that although he still has neck pain and headaches, he has recovered from his other work-related injuries. Claimant admitted that he did not look for work before he received the NARW. However, thereafter, Claimant made employment inquiries with numerous employers. The WCJ "accept[ed] [C]laimant's testimony as credible based upon [his] personal observation of his demeanor while testifying." Reproduced Record (R.R.) at 15a.
Claimant testified that he began looking for work upon receipt of the NARW. However, on cross-examination, Claimant admitted that he did not begin seeking employment until he received the suspension petition. On re-direct examination, Claimant explained that he could not remember whether his job search began after receipt of the NARW or the suspension petition.
Employer presented Dr. Kramer's deposition testimony. After examining Claimant on August 8, 2011, Dr. Kramer opined that Claimant had fully recovered from his work-related thoracic and left shoulder injuries. Dr. Kramer further expressed that Claimant had reached maximum medical improvement with respect to his cervical spine and was capable of performing medium-duty work. The WCJ accepted Dr. Kramer's opinions.
By April 26, 2013 decision, citing City of Pittsburgh v. Workers' Compensation Appeal Board (Robinson), 67 A.3d 1194 (Pa. 2013), the WCJ concluded that Employer did not meet its burden of demonstrating that Claimant had voluntarily withdrawn from the workforce. Specifically, the WCJ stated:
The [Robinson C]ourt did hold that the receipt of a pension is not sufficient evidence, in and of itself, to discharge [E]mployer's burden of proof and that a workers' compensation judge must consider other evidence in addition to a claimant's simple receipt of a pension to determine whether a claimant in fact has retired from the workforce totally. In applying this case and finding that
[C]laimant has not voluntarily withdrawn from the workforce, I have taken into account [C]laimant's age, his efforts to secure employment, the fact that [E]mployer's own doctor imposes work-related restrictions on him, and the fact that [C]laimant had the legitimate reason of preserving medical insurance for his family in taking his pension.R.R. at 15a-16a. Employer appealed from the WCJ's Decision.
On August 12, 2014, the Board affirmed the WCJ's Decision, explaining that
[i]t was [Employer's] burden to establish, by a totality of the circumstances, that Claimant had voluntarily withdrawn from the workforce. [Employer] established that Claimant accepted a retirement pension and did not begin looking for work until sometime after receiving a[] NARW or the Suspension Petition. Claimant explained, however, that he retired in order to preserve his medical insurance covering both his wife and himself. Claimant further explained that his acceptance of his pension was based, in part, on his expectation of not being able to return to his pre-injury work and the comments of [Employer's] safety director indicating that [Employer] did not want Claimant back, considering his disc problems. Furthermore, although [Employer] emphasizes the time period between when Claimant retired and when he began looking for work, the more relevant time period is between the issuance of the NARW and Claimant's attempts at securing employment. Claimant retired in July of 2009, but a[] NARW was not issued until September 20, 2011. [Employer] then filed the Suspension Petition on November 18, 2011, approximately two months after the NARW was issued. Claimant was unsure whether he began looking for work after receiving the NARW or after receiving the Suspension Petition. Despite [Employer's] emphasis on the approximately two and a half year period between Claimant's retirement and the beginning of his search for work, Claimant began looking for work either immediately after receiving the NARW or within two months of receiving [it]. Throughout the course of proceedings on the Suspension Petition, Claimant has continued to look for work. Considering Claimant's explanation regarding his motivations for
retiring and accepting a pension and Claimant's efforts in seeking employment within a few months of receiving a[] NARW, we conclude the record provides substantial competent evidence to support the WCJ's decision.R.R. at 30a-31a (citation omitted). Employer appealed to this Court.
"On review this Court must determine whether constitutional rights were violated, errors of law were committed, or necessary findings of fact were supported by substantial competent evidence." Stepp v. Workers' Comp. Appeal Bd. (FairPoint Commc'ns, Inc.), 99 A.3d 598, 601 n.6 (Pa. Cmwlth. 2014).
Employer argues that the WCJ's finding that Claimant did not voluntarily withdraw from the workforce is not supported by substantial evidence. Employer further contends that the WCJ erroneously applied Robinson's totality-of-the-circumstances test in reaching that conclusion. Specifically, Employer argues, "the WCJ failed to consider the facts and circumstances which are relevant to the issue of whether Claimant voluntarily removed himself from the workforce." Employer Br. at 21. Employer asserts that, applying the totality-of-the-circumstances test, the record evidence demonstrates that Claimant did remove himself from the workforce.
"[T]he WCJ has exclusive authority to act as fact finder, determine credibility of witnesses, and weigh the evidence. The WCJ's findings will not be disturbed if they are supported by substantial, competent evidence." Stepp v. Workers' Comp. Appeal Bd. (FairPoint Commc'ns, Inc.), 99 A.3d 598, 601 n.6 (Pa. Cmwlth. 2014) (citation omitted).
'[I]t is irrelevant whether the record contains evidence to support findings other than those made by the WCJ; the critical inquiry is whether there is evidence to support the findings actually made.' [Minicozzi v. Workers' Comp. Appeal Bd. (Indust. Metal Plating, Inc.), 873 A.2d 25,] 29 [(Pa. Cmwlth. 2005)] (quoting Delaware County v. Workers' Comp. Appeal Bd. (Baxter Coles), 808 A.2d 965, 969 (Pa.[]Cmwlth.[]2002)). We review the entire record to determine if it contains evidence a reasonable mind might
find sufficient to support the WCJ's findings. If the record contains such evidence, the findings must be upheld even though the record contains conflicting evidence.Lahr Mech. v. Workers' Comp. Appeal Bd. (Floyd), 933 A.2d 1095, 1101 (Pa. Cmwlth. 2007) (citation omitted).
Further, Section 422(a) of the WC Act (Act), provides that parties to a WC proceeding are entitled to a "reasoned decision."
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 834.
To satisfy Section 422(a) [of the Act], a WCJ's decision must permit adequate appellate review. Dorsey v. Workers' Comp. Appeal Bd. (Crossing Constr. Co.), 893 A.2d 191 (Pa.[]Cmwlth.[]2006), appeal denied, . . . 916 A.2d 635 ([Pa.] 2007). 'Section 422(a) [of the Act] does not require the WCJ to discuss all of the evidence presented.' Id. at 194[] n.4. 'The WCJ is only required to make the findings necessary to resolve the issues raised by the evidence and relevant to the decision.' Id. '[T]he purpose of a reasoned decision is to spare the reviewing court from having to imagine why the WCJ believed one witness over another.' Id. at 196 (citation omitted).Gumm v. Workers' Comp. Appeal Bd. (Steel), 942 A.2d 222, 228 (Pa. Cmwlth. 2008) (bolded emphasis added).
. . . .
'. . . Section 422(a) [of the Act] does not permit a party to challenge or second-guess the WCJ's reasons for credibility determinations.' Id. at 195. 'Unless made arbitrarily or capriciously, a WCJ's credibility determinations will be upheld on appeal.' Id. Moreover, '[a] reasoned decision does not require the WCJ to give a line-by-line analysis of each statement by each witness, explaining how a particular statement affected the ultimate decision.' Acme Mkts., Inc. v. Workers' Comp. Appeal Bd. (Brown), 890 A.2d 21, 26 (Pa.[]Cmwlth.[]2006).
Our Supreme Court in Robinson stated:
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.Robinson, 67 A.3d at 1209-10.
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.
. . . . If an employer is convinced that a claimant has retired, the employer may present evidence to establish that status. As the Commonwealth Court suggested, the employer may do so by objective facts, including 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.
In support of its argument, Employer lists examples from the record evidence that it maintains, under the totality-of-the-circumstances test, should have convinced the WCJ that Claimant voluntarily removed himself from the workforce. Employer's examples include:
• Claimant responded affirmatively when asked if he was officially retired;Employer also challenges the WCJ's reliance upon Claimant's age, Claimant's efforts to secure employment, Claimant's desire to preserve medical insurance as a justification for his accepting a retirement pension, and Employer's physician's imposition of work-related restrictions on Claimant.
• Claimant's job was still available when he retired;
• Claimant had not applied for work and sought no employment for more than two years after his retirement, until he received the NARW;
• Claimant testified that he sought no employment because he was retired and he was not able to work;
• Claimant received no medical treatment since October 12, 2010;
• Claimant failed to offer medical evidence that he was forced out of the entire labor market;
• Many of the companies Claimant approached were not hiring, or were places of employment where he knew someone;
• Claimant admitted that in several instances, he did not complete an employment application. In other instances, he simply dropped off an employment application without knowing whether jobs were available;
• Claimant admitted that when filling out job applications, he identified Employer as his last employer, and stated that his reason for leaving was "retired;"
• Claimant admitted he was retired from the mines; and
• Claimant testified that he was retired, but "planned to do other things." However, at a prior hearing, Claimant had testified that he retired and wasn't able to work.
More accurately, Claimant responded affirmatively to the question: "And so you officially retired your employment at Consol; is that correct?" R.R. at 80 (emphasis added).
Employer has the burden of proving that Claimant has voluntarily left the workforce. See Robinson. --------
It is undisputed that Claimant accepted a retirement pension. However, although Claimant's acceptance of that pension may support a permissive inference that Claimant voluntarily removed himself from the workforce, it does not create a presumption of retirement. Robinson. Further, Employer's description of the evidence is not entirely accurate. For example, contrary to Employer's representation that "work continued to be available to Claimant at his place of employment at the time he retired, and it was his voluntary decision to retire when he did[,]" Claimant's uncontradicted testimony that the WCJ found credible was that he was advised by Employer's safety director that Employer was aware Claimant was having disc problems and did not want Claimant to return to work since he was experiencing such problems. See R.R. at 93a. The WCJ also determined Claimant's testimony to be credible that his back injury was getting worse, and Claimant believed his employment would be terminated if he could not return to work within one year. Since loss of his job would mean loss of medical insurance, Claimant stated that he accepted the retirement pension to preserve his medical benefits. Based on this evidence, the WCJ was entitled to conclude that Claimant did not intend to withdraw from the entire workforce, but instead believed that, as advised by Employer's safety director, because he was experiencing ongoing medical problems, that he was not able or permitted to return to a position with Employer, and that accepting a retirement pension was necessary to protect his family.
Employer asserts that Claimant's failure to seek work until the NARW was filed demonstrates that Claimant's job search was disingenuous and that Claimant had voluntarily removed himself from the workforce. However, "[a]n employer cannot rely solely on a claimant's failure to seek work to prove voluntary retirement from the workforce, as an employer has a duty to make job referrals until a claimant voluntarily retires." Keene v. Workers' Comp. Appeal Bd. (Ogden Corp.), 92 A.3d 897, 902 (Pa. Cmwlth. 2014). In evaluating the totality of the circumstances, it is appropriate for the WCJ to consider as one factor whether a claimant has attempted to find work prior to receiving a NARW. See Turner v. Workers' Comp. Appeal Bd. (City of Pittsburgh), 78 A.3d 1224 (Pa. Cmwlth. 2013) (Simpson, J., concurring). The WCJ included in his findings of fact that Claimant did not look for employment at least until after he received the NARW. The WCJ also referenced Claimant's job search in the findings of fact, noting that Claimant had identified a total of approximately twenty-two employers with whom he inquired about, or submitted applications for work. The WCJ was free to give that evidence the weight he thought it deserved. See Stepp.
The crux of Employer's appeal is quite simply a challenge to the WCJ's exercise of its fact-finding role determining credibility and evidentiary weight. It is clear from the WCJ's Decision that the WCJ properly performed his fact-finding function and that the facts as found are supported by substantial evidence. In addition, we discern no error in the WCJ's application of the totality-of-the-circumstances test or in his determination that Claimant did not voluntarily withdraw from the workforce. In such circumstances, this Court will not intrude upon the fact-finder's authority.
For all of the above reasons, the Board's decision is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 23rd day of July, 2015, the Workers' Compensation Appeal Board's August 12, 2014 order is affirmed.
/s/_________
ANNE E. COVEY, Judge