Opinion
No. 591 C.D. 2014
09-25-2014
Kevin L. Crabb, Petitioner v. Workers' Compensation Appeal Board (Lowes Home Centers, Inc.), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In this fact-intensive dispute, Kevin L. Crabb (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) that affirmed an order of a workers' compensation judge (WCJ) granting a suspension petition filed by Lowes Home Centers, Inc. (Employer). The WCJ determined Employer offered Claimant a light duty position within his physical restrictions. Claimant contends the WCJ's findings and conclusion that Employer offered him a light duty job within his physical restrictions are erroneous and are not supported by substantial evidence. Claimant further contends the Board, in affirming the WCJ's decision, misstated key testimony and misinterpreted the WCJ's credibility determinations. For the reasons that follow, we vacate and remand for further proceedings.
I. Background
A. NCP; Suspension Petition
In March 2011, Claimant sustained a work injury when he fell while setting up a display backdrop on a shelving rack. Employer acknowledged Claimant's injury in a notice of compensation payable (NCP) as a lumbar and cervical strain/sprain.
In March 2012, Employer filed a suspension petition alleging Claimant could perform light duty work that Employer offered him in February 2012. Claimant filed an answer denying that the light duty work offered fell within Claimant's physical capabilities.
B. Medical Evidence
Employer based its suspension petition on an independent medical examination (IME) performed in December 2011 by Dr. Robert Keehn (IME Physician), an orthopedic surgeon. IME Physician took a history from Claimant and reviewed his medical records. Claimant's records showed some degenerative disc disease at L4-5 and L5-S1, including disc protrusions with an annular tear at L3-4 and L5-S1.
Following his physical examination, IME Physician diagnosed Claimant's work-related injury as a cervical, thoracic and lumbar strain/sprain. However, Claimant's cervical and thoracic condition fully resolved as of the date of the IME.
In addition, IME Physician opined that at the time of examination, Claimant could perform light duty work subject to certain restrictions. To that end, IME Physician opined, at the time of his deposition, that Claimant could perform a telephone operator job Employer offered him in February 2012. See Dep. of Robert Keehn M.D. (Keehn Dep.), 7/24/12, at 18; Reproduced Record (R.R.) at 53a.
In opposition to Employer's petition, Claimant submitted the deposition testimony of Dr. William A. Rolle, Jr., M.D. (Physiatrist), a physician board-certified in physical medicine and rehabilitation. Physiatrist is also a certified specialist in pain management.
On May 5, 2011, Claimant began treatment with Physiatrist's practice group, Physicians of Rehabilitation, Industrial and Spine Medicine (the Group). Another Group physiatrist, Dr. Marjorie Oropilla, examined Claimant in May, June, July and August 2011. Dr. Oropilla removed Claimant from work in May 2011. See Dep. of William A. Rolle, Jr., M.D. (Rolle Dep.), 8/23/12, at Ex. Rolle -2 (Dr. Oropilla's Report, 5/11/11).
Certified Record, WCJ's Hearing, Exhibit C-2.
In October and November 2011, and in January 2012, Physiatrist's physician's assistant, Jennifer Tanner (Physician's Assistant), examined Claimant. Based on Physician's Assistant's November 17, 2011 examination report, which Physiatrist signed, Physiatrist diagnosed Claimant's work-related injury as: "Lumbar neuritis, which is essentially irritation of the lumbar nerve roots, on the basis of the disc protrusion and annular tear at the L5-S1 disc level." Rolle Dep. at 15; R.R. at 100a. On cross-examination, Physiatrist testified he limited his continuing diagnosis of the work injury to lumbar neuritis. Rolle Dep. at 31; R.R. at 116a.
See Dep. of William A. Rolle, Jr., M.D. (Rolle Dep.), 8/23/12, at Ex. Rolle -2 (Physician's Assistant Tanner's Report, 11/17/11).
As of Physician's Assistant's January 23, 2012 examination, the Group continued to keep Claimant off work. See Rolle Dep. at Ex. Rolle -2 (Physician's Assistant Tanner's Report, 1/25/12). To that end, Physiatrist testified, as of February 1, 2012, the Group had not released Claimant to return to work. Rolle Dep. at 21; R.R. at 106a. Physiatrist further testified Claimant remained on a no-work status from May 5, 2011 to March 2, 2012. Rolle Dep. at 21-22; R.R. at 106a-07a.
On March 3, 2012, Physiatrist personally examined Claimant. At this time, Physiatrist felt Claimant could return to work in a sedentary capacity "as long as he was allowed to change positions from sitting to standing, and vice versa as he felt he needed to." Rolle Dep. at 18; R.R. at 103a.
C. Light Duty Offers
Regarding the light duty positions offered Claimant, Employer submitted the deposition testimony of its Human Resource Manager, Elise M. Chorvat (HR Manager). On February 1, 2012, Employer sent Claimant a letter offering him a temporary telephone operator position, beginning February 13, 2012. Dep. of Elise M. Chorvat (Chorvat Dep.), 8/27/12 at 11; R.R. at 143a. HR Manager believed the duties of the telephone operator position fell within the physical restrictions imposed by IME Physician. Chorvat Dep. at 14; R.R. at 146a. Claimant's rate of pay would equal his pre-injury wage. Chorvat Dep. at 16; R.R. at 148a.
However, HR Manager testified, Claimant did not accept the position. Chorvat Dep. at 12; R.R. at 144a. Claimant informed HR Manager he could not start this position because his doctors had not yet cleared him to return work. Id.
HR Manager further testified that after Physiatrist released Claimant to perform sedentary work, Employer sent Claimant a March 15, 2012 letter offering him a cashier position at his pre-injury wage, beginning March 26, 2012. Chorvat Dep. at 14-17; R.R. at 146a-49a. The cashier position duties involved ringing up customers' transactions and some light lifting. Chorvat Dep. at 15; R.R. at 147a. However, Claimant again notified HR Manager that he could not accept the position because his doctor released him only to sedentary work. Chorvat Dep. at 17; R.R. at 149a. In particular, Claimant explained, he could not do any lifting, bending and stooping. Id.
Nonetheless, HR Manager testified that light duty work remained available at Claimant's pre-injury wage. Chorvat Dep. at 18; R.R. at 150a.
D. Claimant's Testimony
Claimant testified on his own behalf before the WCJ. With respect to Employer's offers of light duty work, Claimant recalled that at the time he received the telephone operator offer, his doctors (the Group) restricted him from returning to any work. Notes of Testimony (N.T.), 5/8/12, at 9-10; R.R. at 18a-19a.
Claimant further acknowledged receiving the cashier position offer. He discussed the job offer with Physiatrist. N.T. at 10; R.R. at 20a. Claimant called HR Manager and told her he thought the cashier position involved a lot of bending and stooping, which did not fall within his physical restrictions. N.T. at 11; R.R. at 20a. Physiatrist then faxed Claimant's restrictions to HR Manager. Id. HR Manager did not reply as to whether or not she considered the cashier job to be sedentary work. Id. Thereafter, HR Manager left Claimant a phone message indicating Employer had no sedentary work available and that he should not report to work. Id.
E. WCJ's Decision
After reviewing the evidence, the WCJ found IME Physician's testimony "credible to the extent that it is consistent with the credible and persuasive testimony of [Physiatrist], but incredible where it is inconsistent with the credible and persuasive testimony of [Physiatrist] and [Claimant]." WCJ's Op., 1/13/13, Finding of Fact (F.F.) No. 2. As noted above, IME Physician opined Claimant could perform the telephone operator position Employer offered him in February 2012. Id.
With respect to Physiatrist, the WCJ found his testimony "credible because it is essentially consistent with the credible testimony of [IME Physician]." F.F. No. 5. Physiatrist first personally examined Claimant on March 2, 2012, and opined Claimant could perform sedentary work as of that date. Id.
The WCJ also accepted Claimant's testimony as credible. F.F. No. 4.
Ultimately, the WCJ determined Employer established it offered Claimant a light duty telephone operator position, beginning February 13, 2012. Conclusion of Law (C.L.) No. 2. This position fell within Claimant's physical restrictions and paid Claimant his pre-injury wages. Id. Therefore, the WCJ granted Employer's suspension petition effective that date.
F. Board's Decision
On appeal, the Board affirmed the WCJ's suspension of Claimant's benefits effective February 13, 2012. In reviewing the evidence, the Board stated:
As to testimony of the opposing medical witnesses, review of their testimony confirms that [IME Physician] was of the opinion that Claimant could do light duty or sedentary work while [Physiatrist] confined Claimant to sedentary work. The WCJ found both these witnesses to be credible because their testimony was relatively consistent. The WCJ also found [IME Physician] to be more credible than [Physiatrist] where there was any inconsistency. As to the critical issue in the case, that is whether Claimant was capable of performing the telephone operator job, we find no inconsistency. [HR Manager] described [the telephone operator job] as essentially sedentary and both doctors agreed that Claimant was able to perform sedentary work. Sedentary work is less strenuous than light duty.
Bd. Op., 3/21/14, at 5-6. Claimant petitions for review.
* * * *
Here it is clear that the WCJ accepted the relevant evidence to establish that the telephone operator job was within Claimant's capabilities and his decision is consistent with that finding. Ultimately, it is for the WCJ to decide, whether a given job is appropriate for Claimant. [Champion Home Builders, Co. v. Workmen's Comp. Appeal Bd. (Ickes)], 585 A.2d 550 (Pa. Cmwlth. 1990)].
This Court's review is limited to determining whether the WCJ's findings of fact were supported by substantial evidence, whether an error of law was committed or whether constitutional rights were violated. 2 Pa. C.S. §704; Dep't of Transp. v. Workers' Comp. Appeal Bd. (Clippinger), 38 A.3d 1037 (Pa. Cmwlth. 2011). "Substantial evidence is such relevant evidence as a reasonable person might accept as adequate to support a conclusion." Waldameer Park, Inc. v. Workers' Comp. Appeal Bd. (Morrison), 819 A.2d 164, 168 (Pa. Cmwlth. 2003).
II. Discussion
A. Argument
Claimant contends the WCJ's Finding of Fact No. 6, and Conclusion of Law No. 2, which state that Employer offered Claimant a light duty job within his physical restrictions, are erroneous and are not supported by substantial evidence. In addition, Claimant asserts the Board, in affirming the WCJ's decision, misstated key testimony as to the date Physiatrist approved Claimant for sedentary work and misinterpreted the WCJ's credibility determinations concerning the medical evidence.
As discussed above, Claimant sustained a work injury in March 2011. Claimant began receiving total disability benefits. Following an IME in December 2011, IME Physician felt Claimant could perform light duty work. Therefore, IME Physician executed a return to work/physical capabilities form indicating Claimant could perform per light duty work subject to certain physical restrictions. See R.R. at 79a-84a.
On February 1, 2012, HR Manager offered Claimant a temporary telephone operator position within IME Physician's physical restrictions, beginning February 13, 2012. See R.R. at 169a. However, HR Manager recalled, Claimant informed her that he could not return to work because his personal physician had not cleared him to return to work. Chorvat Dep. at 12; R.R. at 144a. HR Manager's testimony is corroborated by Claimant's testimony. See N.T. at 9-10; R.R. at a18a-19a.
By deposition, Physiatrist testified that his physician's assistant examined Claimant on January 20, 2012. Rolle Dep. at 17; R.R. at 102a. At that time, Physiatrist's office recommended that Claimant remain off work. Id. Physiatrist further testified that as of February 1, 2012, the Group had not released Claimant to work in any capacity. Rolle Dep. at 20; R.R. at 105a. In sum, Physiatrist testified Claimant remained on "no-work status" from May 5, 2011 through March 2, 2012, when Physiatrist released him to sedentary work. Rolle Dep. at 21-22; R.R. at 106a-07a.
Nevertheless, the WCJ determined Employer established it offered Claimant a light duty job within his physical restrictions at his pre-injury average weekly wage as of February 13, 2012. F.F. No. 6; C.L. No. 2. The WCJ reached this conclusion despite finding IME Physician's testimony "incredible where it is inconsistent with the credible and persuasive testimony of [Physiatrist] and ... Claimant." F.F. No. 2 (emphasis added).
As such, Claimant argues, the WCJ's ultimate determination that Employer offered Claimant a light duty job within his medical restrictions as of February 13, 2012, is unsupported by the record and contrary to the WCJ's credibility determinations regarding the medical evidence presented. Therefore, Claimant asserts the WCJ's decision is erroneous and not well reasoned.
Claimant further asserts that in its review of the WCJ's decision, the Board erroneously stated the WCJ found IME Physician to be more credible than Physiatrist where there were any inconsistencies in their testimonies. In actuality, the opposite was true: the WCJ found Physiatrist more credible than IME Physician to the extent their testimonies were inconsistent. See F.F. No. 2.
Further, the Board, in its opinion, stated (with emphasis added):
Claimant testified that he acknowledged getting the job offer for the telephone operator job. (Hearing 5-812, page 9). At that point, [Physiatrist] had restricted him to sedentary duty, no bending, no twisting. (Page 10).Bd. Op. at 4.
However, Claimant testified that as of the date Employer scheduled him to return to work at the telephone operator position, Physiatrist had not released him to any work at all. N.T. at 9-10; R.R. at 18a-19a. As noted, the WCJ found Physiatrist did not release Claimant to sedentary work until March 2, 2012. F.F. No. 5. Consequently, Claimant asserts, the Board's reasoning is contrary to the evidence.
In short, Claimant argues that the record does not contain credible medical testimony supporting the WCJ's determination that Employer offered Claimant a light duty job within his medical restrictions as of February 13, 2012. Therefore, Claimant maintains the Board erred in affirming the WCJ's order suspending Claimant's benefits.
In response, Employer asserts the WCJ did not rely on Physiatrist's testimony regarding Claimant's ability to return to work in February 2012. In support of its position, Employer argues that the WCJ did not even mention Physiatrist's opinion of Claimant's ability to return to work prior to March 2, 2012. In contrast, the WCJ made a specific finding that IME Physician opined Claimant could perform the light duty position offered him in February 2012. F.F. No. 2. Thus, IME Physician's testimony provides substantial evidence for a determination that as of February 13, 2012, Claimant refused available work within his medical restrictions. Employer contends it met its burden of proof for a suspension of Claimant's benefits based on IME Physician's opinion that Claimant could perform the light duty telephone operator job and HR Manager's testimony that Employer offered Claimant that job.
B. Analysis
Initially, we note, "an employer seeking a suspension of benefits bears the burden of proving that, although a claimant continues to have residual physical impairment due to the work injury, employment is available to the claimant within his restrictions which would result in no loss of wages to the claimant." Turner v. Workers' Comp. Appeal Bd. (City of Pittsburgh), 78 A.3d 1224, 1227 (Pa. Cmwlth. 2013). "To establish that such employment is available, the employer needs to present evidence of available positions within the claimant's restrictions." Id. Obviously, to justify a suspension, the employer's evidence of a job offer within the claimant's medical restrictions must be accepted as credible. Channellock v. Workers' Comp. Appeal Bd. (Reynolds), 72 A.3d 731 (Pa. Cmwlth. 2013).
Here, IME Physician testified that at the time of his IME, Claimant could return to light duty work subject to certain restrictions based on Claimant's subjective complaints. F.F. No. 2; Keehn Dep. at 18; R.R. at 53a. To that end, IME Physician opined that Claimant could perform the telephone operator position Employer offered him beginning February 13, 2012. Id.
However, Claimant and Employer disagree as to whether the WCJ accepted as credible IME Physician's opinion regarding Claimant's ability to return to light duty work on February 13, 2012. As noted, the WCJ accepted IME Physician's testimony as "credible to the extent that it is consistent with the credible and persuasive testimony of [Physiatrist], but incredible where it is inconsistent with the credible and persuasive testimony of [Physiatrist] and the Claimant." F.F. No. 2 (emphasis added).
As to Physiatrist's testimony, the WCJ found his testimony "credible because it is essentially consistent with the credible testimony of [IME Physician]." F.F. No. 5 (emphasis added).
Generally, in reviewing the record in a workers' compensation appeal, this Court "must view the evidence in a light most favorable to the party who prevailed before the factfinder." Waldameer Park, Inc. v. Workers' Comp. Appeal Bd. (Morrison), 819 A.2d 164, 168 (Pa. Cmwlth. 2003). "Moreover, we are to draw all reasonable inferences which are deducible from the evidence in support of the factfinder's decision in favor of that prevailing party." Id.
In accord with these principles, Employer's explanation, that the WCJ did not find IME Physician's opinion that Claimant could perform the telephone operator position as of February 13, 2012 inconsistent with Physiatrist's opinion that Claimant could perform sedentary work as of March 2, 2012, would appear plausible. In short, the WCJ's decision did not rely on or even reference Physiatrist's opinion of Claimant's ability to return to work prior to March 2, 2012.
However, as the WCJ found, both Claimant and HR Manager credibly testified that Claimant informed HR Manager in February 2012 that he could not perform the telephone operator position because his physician did not release him to any type of work. F.F. Nos. 3. 4. As such, the WCJ credited Claimant's testimony that his doctors did not release him to light duty work as of February 13, 2012.
Moreover, Physiatrist testified that as of February 1, 2012, he had not released Claimant to work in any capacity. Rolle Dep. at 20; R.R. at 105a. To that end, Physiatrist testified Claimant remained on "no-work status" from May 5, 2011 through March 2, 2012. Rolle Dep. at 21-22; R.R. at 106a-07a.
Given these circumstances, a remand is essential for more precise findings specifying what medical evidence the WCJ accepted in suspending Claimant's benefits as of February 2012. In other words, findings reconciling dates of Claimant's availability with availability of positions within his physical limitations are necessary to ensure fair and effective appellate review in this case. "It is generally well settled that an appellate court 'should not infer from the absence of a finding on a given point that the question was resolved in favor of the party who prevailed below, for the point may have been overlooked or the law misunderstood at the trial or hearing level.'" ARMCO, Inc. v. Workmen's Comp. Appeal Bd. (Carrdous), 590 A.2d 827, 831 (Pa. Cmwlth. 1991) (quoting Page's Dep't Store v. Velardi, 346 A.2d 556, 561 (Pa. 1975)). "Where such findings were not made, the case must be remanded so that findings may be supplied." Id.
HR Manager testified that after Claimant refused the telephone operator position, Employer offered Claimant the cashier position in March 2012 after Physiatrist released Claimant to sedentary work. F.F. No. 3; Chorvat Dep. at 13-17; R.R. at 145a-49a. HR Manager did not indicate whether the telephone operator position remained available when Physiatrist released Claimant to sedentary work in March 2012. As such, the record does not support an inference that the telephone operator position remained available at the time Physiatrist approved Claimant for sedentary work. Further, the WCJ did not determine whether Claimant could perform the cashier job.
Section 422(a) of the Workers' Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §834, requires a WCJ to issue 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 decisions ...." "A decision is 'reasoned' if it allows for adequate review by the appellate courts under the applicable review standards." Pryor v. Workers' Comp. Appeal Bd. (Colin Serv. Sys.), 923 A.2d 1197, 1202 (Pa. Cmwlth. 2006). --------
Consequently, we vacate the Board's order and remand, with instructions to the Board, to further remand this case to the WCJ to make additional and/or different findings and conclusions, based solely upon the existing record, which are consistent with this opinion.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 25th day of September, 2014, the order of the Workers' Compensation Appeal Board is VACATED and this case is REMANDED to the Workers' Compensation Appeal Board, with instructions that the case be remanded to the Workers' Compensation Judge for further proceedings consistent with the foregoing opinion.
Jurisdiction is relinquished.
/s/_________
ROBERT SIMPSON, Judge