Opinion
No. 837 C.D. 2013
09-24-2014
Devlin Electric, Inc., Petitioner v. Workers' Compensation Appeal Board (Shurina), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Devlin Electric, Inc. (Employer) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) granting the claim petition filed by Thomas Shurina (Claimant). In doing so, the Board affirmed the decision of the Workers' Compensation Judge (WCJ) that Claimant sustained a work injury to his right arm and shoulder that resulted in ongoing total disability. Employer agrees that Claimant sustained a work injury, but disputes the finding that the work injury includes the right shoulder or caused an ongoing disability. Employer also seeks a credit for wages Employer says it mistakenly overpaid to Claimant. For the reasons that follow, we remand for further findings on the issue of whether Claimant has an ongoing disability and affirm in all other respects.
Background
Claimant worked for Employer for three years as an electrician. On September 27, 2005, Claimant fell 16 feet from a ladder at a job site and injured his right arm. On October 3, 2005, Employer stipulated, in writing, that Claimant had broken his right arm above the elbow when he fell and agreed to pay Claimant's medical expenses and his full salary "for the duration of his Injury or until he is cleared to come back to work." Reproduced Record at 103a (R.R. ___). Employer paid Claimant's medical bills and full wages through May 16, 2010, and then ceased making payments. Employer did not have a policy of workers' compensation insurance to cover its liability to Claimant for his injury.
Claimant filed a claim petition when Employer stopped paying wage loss benefits. Claimant alleged that the fall caused a right shoulder injury as well as a broken arm that, in turn, caused him to overuse his left arm. Claimant requested payment of ongoing total disability benefits and any unpaid medical bills, acknowledging that Employer had paid wages in lieu of compensation and medical bills until May 2010.
In its answer, Employer admitted that Claimant sustained a work injury on September 27, 2005, but it disputed Claimant's description of the injury. Employer denied that Claimant was entitled to disability benefits after May 2010 or that it was liable for any more medical treatment, alleging that Claimant's unpaid medical bills were not related to the work injury.
The matter was assigned to a WCJ who conducted several hearings. Both Claimant and Employer appeared and presented evidence.
Claimant testified that his job duties involved heavy overhead work, such as hanging and lifting conduits and transformers that weighed 25 to 50 pounds. While hanging a conduit on September 27, 2005, Claimant's ladder slipped. He fell to the ground breaking his right arm and injuring his right shoulder. Claimant underwent several surgeries. Claimant stated that he had never injured his shoulder before that incident. Claimant had surgery on May 26, 2010, to his left elbow. Employer did not pay the medical bills for the left elbow surgery and stopped paying Claimant's wages around that time.
Claimant testified that he never returned to work after his injury. On cross-examination Claimant acknowledged that at Employer's request, he had returned to work for three days, January 8th, 9th and 10th, 2007. Claimant described the job as "babysit[ting] [Employer's] employees" and handing light fixtures and wires to his co-workers as they worked. R.R. 424a-25a. Even so, the physical requirements of the job caused Claimant pain. Claimant testified that he did not return after the third day because of medical tests that were scheduled but then "postponed." R.R. 425a. Claimant could not recall Employer offering him a job after that. Claimant admitted that he had stopped communicating with Employer because he was angry that Employer did not have workers' compensation coverage. All communication with Employer went through Claimant's wife.
Claimant submitted the deposition testimony of his treating physician, Christopher C. Schmidt, M.D., who is board certified in orthopedics with a specialty in upper extremity injuries. Dr. Schmidt first saw Claimant two days after he fell from the ladder, complaining of excruciating right arm and shoulder pain. Dr. Schmidt diagnosed a displaced midshaft humerus fracture and surgically repaired that injury on October 3, 2005, by inserting a metal plate and screws. Claimant continued to have pain and difficulty lifting his arm. He underwent an MRI on December 1, 2005, which showed a partial rotator cuff tear in the right shoulder. One month later, Dr. Schmidt surgically repaired the rotator cuff tear and a tear to the biceps tendon. Claimant then developed shoulder stiffness caused by scar tissue. To address this problem, Dr. Schmidt did surgery on June 28, 2006.
In January 2007, Claimant complained of difficulty with overhead lifting at his light-duty job. An MRI showed a Bankart lesion, and Dr. Schmidt surmised that the lesion was caused by one of the shoulder surgeries. On March 7, 2007, Dr. Schmidt repaired the Bankart lesion with sutures, which later became loose. Accordingly, Dr. Schmidt did a second surgical Bankart repair on December 12, 2007, which was successful. Claimant suffers mild to moderate joint arthritis and pain at the site of the plate used to repair his broken arm.
Dr. Schmidt opined that the arm fracture, the partial thickness rotator cuff tear, biceps tendinopathy, Bankart lesion and shoulder arthritis were causally related to Claimant's September 27, 2005, work injury. Dr. Schmidt explained that the arm fracture affected the soft tissues in the joints adjacent to the bone, i.e., the elbow and the shoulder, and none of the surgeries would have been required had Claimant not fallen from the ladder. R.R. 136a-37a.
Dr. Schmidt reviewed a medical note from Sarver Family Practice dated September 22, 2005, five days before the work injury, stating that Claimant complained of right shoulder pain from wrestling with his son. Dr. Schmidt testified that this did not change his opinion that Claimant's right shoulder injury occurred when he fell from the ladder at work.
Claimant underwent extensive physical therapy and on October 27, 2009, Claimant informed Dr. Schmidt that he had reached a point where "he could live with the right arm." R.R. 132a. Accordingly, Dr. Schmidt testified that he would allow Claimant to return to his electrician job with a right arm lifting restriction of 25 pounds.
In December 2009, Claimant reported left elbow pain that Claimant attributed to overusing his left arm when his right arm was injured. Dr. Schmidt did surgery on May 26, 2010, to address these symptoms. Dr. Schmidt testified that he could not link Claimant's left arm problems to the work injury within a reasonable degree of medical certainty, and that an intrinsic arthritic disease process was most likely the culprit. Claimant needs no work restrictions for the left arm.
Employer presented the testimony of Jon B. Tucker, M.D., a board certified orthopedic surgeon who did an independent medical examination (IME) of Claimant on February 17, 2011. Dr. Tucker's x-rays showed a completely healed humerus fracture and evidence of prior shoulder repair. Dr. Tucker also took a history from Claimant, reviewed his medical records and did a physical examination of the right arm and shoulder. Dr. Tucker agreed with Dr. Schmidt that Claimant's right shoulder problems were attributable to the fall at work. Based on his review of the Sarver Family Practice medical note from September 22, 2005, which noted Claimant's report of shoulder pain for three weeks, Dr. Tucker diagnosed Claimant with shoulder impingement that "was likely present pre-accident." R.R. 287a. However, Dr. Tucker could not rule out the possibility that the work accident aggravated that condition. Id.
Although Claimant complained of some mild residual symptoms in his shoulder, Dr. Tucker's physical examination was objectively normal. Dr. Tucker opined that Claimant fully recovered from the humerus fracture and rotator cuff tear or any other shoulder injury he may have sustained and could work without restrictions.
Employer submitted into evidence the Sarver Family Practice medical notes from September 22, 2005, that documented Claimant's complaints of right shoulder pain for three weeks, which he attributed to wrestling with his son. R.R. 323a. The medical notes recorded that Claimant had minimal diffuse tenderness and full range of motion.
Employer presented the testimony of Mark Emanuelson, Claimant's co-worker. Emanuelson testified that several months before the work injury, Claimant complained to Emanuelson as they were installing ceiling lights that he could not lift his right arm above shoulder level. Claimant explained that he had hurt his arm while wrestling with his son. Emanuelson testified that in the months before Claimant's work injury, Claimant made a "couple other complaints" about his shoulder, but they were not consistent. R.R. 503a.
Employer also presented the testimony of its owner and president, William Devlin. He testified that Claimant returned to work on January 8th-10th of 2007 at full wages, doing light-duty supervisory work and helping co-workers. Devlin described the supervisory work as looking at drawings, making sure that work was being done properly, planning, organizing, ordering parts and talking with customers. Without explanation, Claimant did not return to work after January 10th. Devlin testified that Claimant stopped talking to him and refused to return phone calls, so Devlin had to deal solely with Claimant's wife. In March 2009, Devlin spoke to Claimant's wife in person and requested that Claimant do supervisory work two or three days a week for four to five hours a day to help out because Employer was very busy. Devlin offered part-time work because he was not sure what Claimant's medical restrictions were at that point. The job would have paid full wages. The next week, Claimant's wife told Devlin that Claimant would not do it.
Devlin testified that he has had light-duty work available for Claimant since he left in January 2007. During the course of this litigation, Devlin learned that Claimant' s doctor placed a 25-pound weight restriction on overhead work with his right arm. Devlin testified that he needed Claimant's help and had a full-time, light-duty supervisory position available immediately that would pay Claimant's full wages.
The WCJ granted the claim petition. In doing so, the WCJ accepted as credible the testimony of Claimant and Dr. Schmidt and rejected any contrary or conflicting testimony from Dr. Tucker, Mark Emanuelson or William Devlin. The WCJ found that Claimant's work injury included a right humerus fracture and right shoulder injuries necessitating four surgical procedures. The WCJ found that Claimant had a pre-existing right shoulder problem that was aggravated by Claimant's fall. The WCJ found that Claimant's left elbow surgery was not work-related, thus holding Employer not liable for any medical bills for the left arm.
The WCJ found that Claimant was not fully recovered from his work injury but able to work with a 25-pound overhead lifting restriction for the right arm. With respect to Claimant's light-duty work in January 2007, the WCJ rejected Employer's contention that Claimant voluntarily quit after three days. The WCJ accepted Claimant's explanation that he did not continue working because he was scheduled to have more testing and surgery for his right shoulder injury. Further, Dr. Schmidt testified that Claimant had difficulty lifting overhead during that time. The WCJ found that Employer voluntarily reinstated wage loss payments to Claimant in lieu of compensation after January 10, 2007.
The WCJ rejected Employer's argument that light-duty work has been available to Claimant since January 2007, finding that Employer did not "properly and legally" offer Claimant such work. WCJ Decision, October 17, 2011, at 9; Finding of Fact No. 21. As such, the WCJ found that Claimant was entitled to ongoing total disability benefits in the amount of $471.61 a week as of May 17, 2010, when Employer had stopped making payments in lieu of compensation. The WCJ denied Employer's request for a credit for any overpayment that resulted from Employer paying Claimant's full wages in lieu of the lesser workers' compensation total disability rate from September 28, 2005, through May 16, 2010. Employer appealed, and the Board affirmed in all material respects. Employer then petitioned for this Court's review.
During the course of the litigation, Claimant entered into a third-party settlement for $95,000 with CPU Exhibits, the company that supplied the ladder. Recognizing Employer's subrogation lien, the WCJ granted Employer a credit of $31,363.41 against Claimant's weekly disability benefits. Accordingly, the WCJ found that from May 17, 2010, through October 16, 2011, Employer owed Claimant $3,535.73 in disability benefits after exhaustion of its credit. The WCJ found that Employer must pay weekly total disability benefits of $471.61 as of October 17, 2011, and ongoing.
The Board reversed the WCJ's order only inasmuch as it erroneously required Employer to pay the same medical expenses twice. The issue of medical expenses is not relevant to the current appeal.
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). Substantial evidence has been defined as such relevant evidence that a reasonable mind might accept as adequate to support a finding. Mrs. Smith's Frozen Foods Company v. Workmen's Compensation Appeal Board (Clouser), 539 A.2d 11, 14 (Pa. Cmwlth. 1988).
Appeal
On appeal, Employer argues that the Board erred in affirming the WCJ's decision and order for several reasons. First, Employer contends the WCJ's finding that Claimant's work accident caused a right shoulder injury is not supported by substantial, competent evidence. Second, Employer asserts that the WCJ's decision to credit the testimony of Claimant's medical expert over Employer's on the need for work restrictions was arbitrary and capricious because only Employer's physician conducted objective testing of Claimant's shoulder. Third, Employer argues that crediting Claimant's testimony was arbitrary and capricious given that Claimant testified, falsely, that he had never suffered a prior right shoulder injury and that he did not work for Employer after his fall. Fourth, Employer argues that the determination that Claimant remains totally disabled is contrary to applicable law. Finally, Employer argues that the Board erroneously concluded that Employer is not entitled to a credit for the benefits it overpaid to Claimant.
We have rearranged the order of Employer's arguments for organizational purposes.
Applicable Legal Principles
In a claim petition, the claimant has the burden of proving all elements necessary to support an award of benefits. Inglis House v. Workmen's Compensation Appeal Board (Reedy), 634 A.2d 592, 595 (Pa. 1993). The claimant must prove he sustained an injury that is work-related. Fotta v. Workmen's Compensation Appeal Board (U.S. Steel/USX Corp. Maple Creek Mine), 626 A.2d 1144, 1146 (Pa. 1993). Where there is no obvious causal connection between the injury and the alleged work-related cause, unequivocal medical evidence is necessary to establish that connection. Degraw v. Workers' Compensation Appeal Board (Redner's Warehouse Markets, Inc.), 926 A.2d 997, 1000 (Pa. Cmwlth. 2007).
The WCJ is the ultimate finder of fact, and his findings may not be disturbed where supported by substantial, competent evidence. Westinghouse Electric Corp. v. Workers' Compensation Appeal Board (Weaver), 823 A.2d 209, 215 (Pa. Cmwlth. 2003). This Court must view the evidence in the light most favorable to the party that prevailed before the WCJ and must draw all reasonable inferences from the evidence in support of the WCJ's decision. 3D Trucking Company, Inc. v. Workers' Compensation Appeal Board (Fine and Anthony Holdings International), 921 A.2d 1281, 1288 (Pa. Cmwlth. 2007).
Competency of Medical Evidence
Employer first argues that the WCJ's finding that Claimant sustained a work-related shoulder injury cannot stand because Dr. Schmidt's testimony, upon which the finding is based, is incompetent in several respects. Dr. Schmidt was convinced that Claimant sustained a shoulder injury when he fell because: (1) force was transferred to the shoulder when Claimant broke his arm; and (2) regardless of whatever pre-existing pain he had in his shoulder, Claimant was able to perform his electrician job before he fell. Employer asserts that this opinion is equivocal because Dr. Schmidt was not certain that force went into Claimant's shoulder when his humerus bone was broken. Dr. Schmidt testified:
When you break a bone, you not only break the bone, you injure the soft tissue around the bone. So I strongly feel without a reasonable doubt that [the shoulder injury is] work related.R.R. 137a. The topic was revisited on cross examination as follows:
Q. [by Employer's Counsel]: Is it fair to say that you were speculating about the direction in which the force was transferred by the injury?R.R. 155a.
A. [by Dr. Schmidt]: No. I think in order to break that bone you have to have a lot of force. I cannot believe that [Claimant] just perfectly snapped it in half and no force went to the adjacent joints. I think when you fall and break that bone, I think within a reasonable degree of medical certainty that force is transferred right to the shoulder.
Medical testimony will be held incompetent to support a finding of causation if it is equivocal. Coyne v. Workers' Compensation Appeal Board (Villanova University), 942 A.2d 939, 954 (Pa. Cmwlth. 2008). Whether medical testimony is unequivocal is a conclusion of law fully reviewable on appeal. Lewis v. Workmen's Compensation Appeal Board (Pittsburgh Board of Education), 498 A.2d 800, 803 (Pa. 1985). The testimony must be viewed as a whole and "[n]ot every utterance coming from a medical witness on a medical subject must be certain, positive, and without any reservation." Martin v. Workers' Compensation Appeal Board (Red Rose Transit Authority), 783 A.2d 384, 389 (Pa. Cmwlth. 2001).
Dr. Schmidt testified that the force required to break Claimant's humerus bone also injured the soft tissue in his shoulder. Using the words, "I cannot believe that ... no force went to the adjacent joints" and "I think ... that force is transferred right to the shoulder" does not render Dr. Schmidt's opinion equivocal. R.R. 155a. Dr. Schmidt expressed his opinion within a reasonable degree of medical certainty, which is all that is required of him.
Employer also contends that Dr. Schmidt made an unfounded assumption about Claimant's pre-existing shoulder condition. Dr. Schmidt testified as follows:
The problem I have with [Dr. Tucker's opinion that the shoulder injury was pre-existing] is [Claimant] fell sixteen feet on his right side. He broke a bone and complained after of excruciating right shoulder pain. Now, prior to the accident, he was an electrician lifting overhead, doing his job lifting greater than 25 pounds overhead and not having excruciating pain. Otherwise, he wouldn't have been on the ladder. When I asked him, "Did you have pain prior to the accident," he said "Not like this." So the intensity of pain was huge.R.R. 141a. This testimony is consistent with Claimant's statement to Dr. Schmidt that his shoulder pain before the work injury was manageable. Emanuelson also testified that despite a few complaints, Claimant continued to perform his regular electrician job in the months leading up to his fall. Dr. Schmidt drew a reasonable inference that was supported by the evidence, i.e., that Claimant was able to work before his accident, in spite of some shoulder pain.
Employer also argues that because Dr. Schmidt did not know about the Sarver Family Practice medical note before he testified, his opinion was incompetent. The fact that a medical expert does not review all of a claimant's medical records goes to the weight to be assigned the expert's testimony, not its competency. Samson Paper Company & Fidelity Engraving v. Workers' Compensation Appeal Board (Digiannantonio), 834 A.2d 1221, 1224 (Pa. Cmwlth. 2003). Dr. Schmidt reviewed the Sarver Family Practice medical note during his deposition, and there was no requirement that he do so before rendering an opinion.
In any case, Employer overstates the significance of the Sarver Family Practice medical note. As Dr. Schmidt explained, the medical note documented shoulder pain complaints. It did not change Dr. Schmidt's opinion because: (1) the doctor writing the note was a family practitioner, not an orthopedic surgeon; and (2) the doctor noted minimal pain with palpation and full range of motion, proving that Claimant did not have a rotator cuff tear at that time. Even Employer's expert, Dr. Tucker, could not rule out the possibility that the fall from the ladder aggravated a pre-existing shoulder problem.
In sum, Dr. Schmidt's opinion, credited by the WCJ, that Claimant injured his shoulder in the fall, was not incompetent.
WCJ's Credibility Determinations
In its second issue, Employer challenges two of the WCJ's credibility determinations as arbitrary and capricious. The WCJ has complete authority over questions of witness credibility and the weight to assign evidence. Davis v. Workers' Compensation Appeal Board (City of Philadelphia), 753 A.2d 905, 909 (Pa. Cmwlth. 2000). Nevertheless, the WCJ's determination may be set aside on appeal where the finding is "arbitrary and capricious or so fundamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render it irrational." Agostino v. Township of Collier, 968 A.2d 258, 263-64 (Pa. Cmwlth. 2009) (citation omitted).
The WCJ credited Dr. Schmidt over Dr. Tucker because Dr. Schmidt treated Claimant over the course of several years, and Dr. Tucker saw Claimant one time. It is well established that "greater credence may be given to the testimony of a treating physician than to a physician who examines simply to testify for litigation purposes." D.P. "Herk" Zimmerman, Jr., Inc. v. Workmen's Compensation Appeal Board (Himes), 519 A.2d 1077, 1080 (Pa. Cmwlth. 1987). Employer acknowledges this concept but argues it is not applicable here because only Dr. Tucker did objective testing of Claimant.
Employer argues that objective testing confirmed Dr. Tucker's opinion that Claimant needed no work restrictions. On the other hand, Dr. Schmidt based his work restriction on his past treatment of Claimant and did not do functional capacity testing. Specifically, when asked how he arrived at a 25-pound lifting restriction for Claimant, Dr. Schmidt responded:
[Through] [m]y experience and my exam in the office, what he could lift in my testing. Every time he came into my office, I tested his shoulder strength.... This is what I do for a living. I do it day in and day out. ... It's based on knowing the patient for six years and examining him every time he comes into the office practically every month of those six years, listening to him ... listening to his complaints, just trying to be a good doctor. So based on all that and my experience as a surgeon for 14 years, that's what I put on him. It's kind of hard to say this - it's not one absolute thing. I did that even without a functional capacity evaluation, because I know him so well. I think I know exactly what the functional capacity evaluation [would] say.R.R. 174a-176a (emphasis added).
A functional capacity evaluation is a test done to ascertain the claimant's ability to perform certain tasks; it is performed over a period of several hours in a work setting. Condran v. Workers' Compensation Appeal Board (H.B. Reese Candy Company), 721 A.2d 1133, 1135 (Pa. Cmwlth. 1998). There was no functional capacity evaluation done in this case. What Employer characterizes as "functional capacity testing" by Dr. Tucker was his physical examination of Claimant's shoulder strength, range of motion and ligament stability coupled with the x-rays taken in his office. Dr. Schmidt reviewed multiple radiographic test results and did his own physical examinations of Claimant's shoulder on numerous occasions over the course of several years. In fact, Dr. Schmidt actually viewed Claimant's shoulder bones, ligaments and muscles during four surgical procedures. Dr. Tucker did not. There was nothing arbitrary or capricious in the WCJ's decision to credit Dr. Schmidt's opinion over that of Dr. Tucker.
Employer further argues that it was arbitrary and capricious to credit Claimant's testimony in its entirety in light of his two false statements. We disagree.
Claimant replied "no" to the question of whether he had injured his shoulder before the fall. R.R. 383a. The WCJ found that Claimant had a pre-existing shoulder "problem" but not an injury. WCJ Decision, October 17, 2011, at 8; Finding of Fact No. 21. Dr. Schmidt credibly explained that despite the existence of pre-existing shoulder pain, Claimant sustained a new shoulder injury at work that necessitated multiple surgeries.
Claimant testified that he did not return to work after his work injury, and on cross-examination acknowledged that he worked three days in January 2007. The following exchange then took place:
Q [by Employer's counsel]. What do you mean when you said you never returned to work even to this day? You don't count that as returning to work even though it was with [Employer]?R.R. 425a.
A [by Claimant]. No. When I go to work, I work. That was not work.
Employer labels Claimant's testimony, which expressed his opinions, to be "false." It was up to the WCJ to assess Claimant's testimony. The WCJ found that the above apparent inconsistencies in Claimant's testimony were explained by his other testimony. This was not an arbitrary or capricious exercise of the fact finder's discretion.
Continuing Disability of Claimant
Employer argues that the Board erred in holding Claimant to be entitled to ongoing total disability benefits. Employer points out that Claimant returned to light-duty work at full wages in January 2007. Any subsequent loss of wages is attributable to the fact that Claimant voluntarily quit that position without good cause or any notice to Employer.
The claimant bears the burden of proving that his compensable injury continues to cause disability throughout the pendency of the claim petition proceeding. Innovative Spaces v. Workmen's Compensation Appeal Board (DeAngelis), 646 A.2d 51, 54 (Pa. Cmwlth. 1994). Under workers' compensation law, "disability" is synonymous with loss of earning power. Landmark Constructors, Inc. v. Workers' Compensation Appeal Board (Costello), 747 A.2d 850, 854 (Pa. 2000). Where the injured claimant performs a job for a time and then voluntarily leaves work, the separation from employment must be related to the work injury in order for total disability benefits to continue. Inglis House, 634 A.2d at 595-96.
Here, Employer accepted liability for a work injury and paid wages in lieu of compensation. It is undisputed that Claimant returned to a light-duty job with Employer for three days in January 2007. The WCJ credited Claimant's testimony that he had pain while doing the light-duty job and left to undergo further testing and surgery on his right shoulder. The WCJ also credited Dr. Schmidt's testimony that Claimant was having shoulder problems at the time - a condition found to have been caused by the work injury. Claimant was entitled to total disability as of that time.
Claimant's stated reason for leaving the light-duty job in January of 2007 was upcoming testing and surgery. Employer voluntarily paid Claimant wages in lieu of compensation for over three years after he left his light-duty job. Employer could have challenged Claimant's disability status during that period, but did not do so. Importantly, Claimant underwent two more surgeries in March 2007 and December 2007 and did not receive an opinion from his doctor that he could return to work until July 2010.
Employer points out that "[w]ere this matter within the workers' compensation system at the time, Employer might have been able to suspend compensation" when Claimant returned to work in January 2007. Employer's Brief at 14. The reason the matter was not within the workers' compensation system is because Employer did not have workers' compensation insurance. Employer's problems, then, are to a large extent of its own making.
Dr. Schmidt testified that he did not discuss Claimant's capabilities with him or assign any work restrictions prior to that time because this was not classified as a workers' compensation case until Claimant filed his claim petition. Again, this is because of Employer's uninsured status.
Employer also argues that Claimant is not entitled to ongoing total disability benefits because Claimant is now capable of returning to work and Devlin testified that he still needs Claimant's services. This warrants a remand.
In his July 2010 medical report and again during his deposition on May 11, 2011, Dr. Schmidt stated that Claimant can work so long as he does not have to lift more than 25 pounds overhead. Claimant testified that he never discussed returning to work with Dr. Schmidt. Nevertheless, Claimant was aware that as of July 2010 Dr. Schmidt would allow him to work with the 25-pound restriction.
At the hearing on June 29, 2011, Devlin stated that he learned through the litigation that Dr. Schmidt had placed the 25-pound restriction on Claimant's right arm. Devlin testified that he needed Claimant's help and had a full-time, light-duty supervisory position available immediately that would pay Claimant's full wages. Devlin acknowledged that he had not put the offer in writing or "formally" offered it earlier because he did not realize that was an option. R.R. 517a, 519a.
The WCJ found that although Claimant could work within the restriction imposed by Dr. Schmidt, he is presumed to remain totally disabled because Employer did not "properly and legally" offer Claimant such work in accordance with the Workers' Compensation Act (Act). Specifically, the WCJ found that after January 10, 2007, Employer did not issue a Notice of Ability to Return to Work as required by the Act, nor did Devlin offer Claimant a job in writing or by speaking with him directly.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
Section 306(b)(3) of the Act directs an employer to provide the claimant with a Form LIBC-757 Notice of Ability to Return to Work if the employer "receives medical evidence that the claimant is able to return to work in any capacity." 77 P.S. §512(3). The purpose of this statutory requirement is "to require the employer to share new medical information about a claimant's physical capacity to work and its possible impact on existing benefits." Smith v. Workers' Compensation Appeal Board (Caring Companions, Inc.), 55 A.3d 181, 185 (Pa. Cmwlth. 2012) (quoting Ashman v. Workers' Compensation Appeal Board (Help Mates, Inc.) 980 A.2d 57, 63 (Pa. Cmwlth. 2010)). Typically, the employer must first provide a Notice of Ability to Return to Work before the claimant's benefits can be modified or suspended based on job availability. Secco, Inc. v. Workers' Compensation Appeal Board (Work), 886 A.2d 1160, 1162 (Pa. Cmwlth. 2005). This is so even during litigation of a claim petition. Allegis Group v. Workers' Compensation Appeal Board (Henry), 882 A.2d 1, 4 (Pa. Cmwlth. 2005). However, where the claimant's own physician informs the claimant and the employer that the claimant is capable of returning to work, there is no need for the employer to issue a Notice of Ability to Return to Work. Smith, 55 A.3d at 185-86.
Section 306(b)(3) was added by the Act of June 24, 1996, P.L. 350. It states as follows:
If the insurer receives medical evidence that the claimant is able to return to work in any capacity, then the insurer must provide prompt written notice, on a form prescribed by the department, to the claimant, which states all of the following:
77 P.S. §512(3).(i) The nature of the employe's physical condition or change of condition.
(ii) That the employe has an obligation to look for available employment.
(iii) That proof of available employment opportunities may jeopardize the employe's right to receipt of ongoing benefits.
(iv) That the employe has the right to consult with an attorney in order to obtain evidence to challenge the insurer's contentions.
Here, it was Claimant's treating physician, Dr. Schmidt, who stated that he had released Claimant to work with a 25-pound overhead lifting restriction for the right arm. Under the rationale of Smith, Employer was not obligated to issue a Notice of Ability to Return to Work. The WCJ erred in concluding otherwise.
This leaves the issue of Devlin's job offer. An employer may obtain a suspension or modification of benefits if it can show that suitable employment was made available to the claimant. Kachinski v. Workmen's Compensation Appeal Board (Vepco Construction Company), 532 A.2d 374, 380 (Pa. 1987). In the case of a job offer, the employer must prove that it referred the claimant to an available job that fits within his medical restrictions. Id. When the employer meets its burden of proof, the burden shifts to the claimant to prove that he followed through on the job referral in good faith; if he cannot, benefits will be suspended or modified. Id.
Typically, the employer presents the claimant with a written referral containing a job description. However, benefits can be modified where, during the litigation, the employer orally offers a modified-duty job. Crawford County Care Center v. Workmen's Compensation Appeal Board (Daly), 649 A.2d 203, 205-06 (Pa. Cmwlth. 1994). The employer must provide a basic job description unless the claimant previously performed the modified-duty job; if so, the employer need not provide a description of the job duties. Braun Baking Company v. Workmen's Compensation Appeal Board (Stevens), 583 A.2d 860, 863 (Pa. Cmwlth. 1990).
The WCJ acknowledged Devlin's offer of light-duty supervisory work that would pay Claimant's pre-injury wages. However, he gave it no significance because Devlin had not offered the job to Claimant outside of the litigation. A job offer need not be made before litigation. It can be made to the claimant orally during the course of the litigation, as confirmed through the employer's testimony.
The WCJ's reasoning does apply to the job offer Devlin relayed to Claimant's wife in March 2009. At that time, Claimant's doctor had not opined that he could work with restrictions. Claimant credibly testified that he did not recall Employer offering him a job at that time. Therefore, that job offer cannot form the basis for a modification or suspension.
Despite this, Claimant's admission that he stopped communicating with Employer out of anger after January 2007 is noteworthy. The employer must make a good faith effort to help the claimant return to work, but the employer is not the only one with a good faith obligation. Claimants must make their best efforts to return to work and must cooperate with the employer. Landmark Constructors, 747 A.2d at 854. Thus, should Claimant's benefits not be suspended following remand, it would behoove Claimant to cooperate with any future efforts by Employer to help him return to work lest any non-cooperation be held against him.
In sum, a remand is necessary on the issue of ongoing disability. The WCJ must make specific findings regarding the availability of a light-duty supervisory job with Employer and determine whether a suspension or modification of benefits is warranted.
Credit
Finally, Employer argues that the Board erred by not awarding Employer a credit when Employer paid full wages to Claimant rather than total disability benefits at the rate of two-thirds of Claimant's average weekly wage. Employer contends that it is entitled to a credit because the overpayment was mistakenly made, was without consideration and leaves Claimant unjustly enriched.
Prior to his injury, Claimant worked full-time and earned $17.50 an hour, which provided a net income of $700 per week. The WCJ found that between September 28, 2005, and May 16, 2010, Employer paid Claimant his wages minus taxes, for a total of $594.40 each week. Claimant's weekly workers' compensation total disability benefit rate is $471.61.
In certain limited circumstances, an employer can recover an overpayment of benefits from a claimant by taking a credit against future benefit payments in order to prevent a double recovery or unjust enrichment. Mino v. Workers' Compensation Appeal Board (Crime Prevention Association), 990 A.2d 832, 841 (Pa. Cmwlth. 2010). Such recoupment is permitted if the overpayment resulted from a mathematical miscalculation in the operative Bureau documents or the employer's mistaken belief that the payment was necessary to discharge its duty under the Act. Commonwealth of Pennsylvania v. Workers' Compensation Appeal Board (Noll), 80 A.3d 525, 531-32 (Pa. Cmwlth. 2013). This is not such a case.
In Noll, the employer overpaid the claimant total disability benefits without subtracting attorney's fees because it mistakenly believed a WCJ's order required it to do so.
The WCJ concluded that Employer is not entitled to a credit because Employer simply paid wages in lieu of compensation without a mistake or miscalculation. The Board saw no error in that determination, nor does this Court. Devlin testified that he paid Claimant his full wages because Devlin "wanted to do the right thing." R.R. 505a. Devlin explained that "I've been hurt before, and I know what it's like to be on Workers' Comp with a family." Id. Furthermore, Devlin could not submit the claim to his workers' compensation carrier because he did not have one. There was no "overpayment" of benefits because Devlin was not paying benefits; he was voluntarily paying Claimant's full salary. Under the circumstances, Employer is not entitled to a credit.
Conclusion
We affirm the Board's order granting Claimant's claim petition in all respects save one. As to the grant of ongoing total disability benefits, the order is vacated and the matter is remanded to the Board with instructions to remand to the WCJ for further findings and conclusions concerning a job offer made during the pendency of the litigation and Employer's possible entitlement to a suspension of benefits.
Our opinion and order is not to be interpreted as stopping Claimant's ongoing disability benefits. Claimant's total disability benefits shall continue during the duration of the remand proceedings unless Employer is granted a supersedeas. --------
/s/_________
MARY HANNAH LEAVITT, Judge
ORDER
AND NOW, this 24th day of September, 2014, the order of the Workers' Compensation Appeal Board dated April 18, 2013, in the above captioned matter is hereby VACATED with respect to the determination of ongoing total disability and this matter is REMANDED for purposes consistent with the foregoing opinion. The order is AFFIRMED in all other respects.
Jurisdiction relinquished.
/s/_________
MARY HANNAH LEAVITT, Judge