Opinion
No. 1891 C.D. 2013
07-16-2014
Linda J. Fetter, Petitioner v. Workers' Compensation Appeal Board, (Leather Set and State Workers' Insurance Fund), Respondents
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Linda J. Fetter (Claimant), representing herself, petitions for review of an Order of the Workers' Compensation Appeal Board (Board) affirming the Workers' Compensation Judge's (WCJ) Decision granting Leather Set's (Employer) suspension petition. The WCJ suspended Claimant's Workers' Compensation (WC) benefits as of March 14, 2011 based on the finding that Claimant failed to follow through on two job referrals in good faith. On appeal, Claimant argues that Employer did not meet its burden of proof and she demonstrated that she acted in good faith. Discerning no error, we affirm.
Claimant suffered a work-related injury on December 1, 1995 described as tendonitis of the right shoulder and wrist. (WCJ Decision, January 11, 2012 (2012 Decision), Findings of Fact (FOF) ¶ 2.) Employer accepted Claimant's injury and she began receiving WC benefits pursuant to a notice of compensation payable. (2012 Decision, FOF ¶ 2.) On or about April 7, 2009, Employer filed petitions to modify or suspend Claimant's WC benefits on the basis that Claimant demonstrated bad faith in following through on open jobs Employer referred to Claimant. (WCJ Decision, January 10, 2011 (2011 Decision), FOF ¶ 1; WCJ Ex. 1, S.R.R. at 139b-70b.) On May 6, 2009, Claimant filed a petition to review compensation benefits wherein she sought to expand the description of her December 1, 1995 work-related injury. (2011 Decision, FOF ¶ 2.) Employer's and Claimant's petitions were consolidated.
The WCJ granted Claimant's petition to review and the description of her injury was modified as follows: "'tendonitis of the right shoulder; right thoracic outlet syndrome and two failed surgeries; myofascial pain; pain in the right trapezius and right side of the neck radiating into the post occipital area causing headaches.'" (2011 Decision, Conclusions of Law (COL) ¶ 1.) Employer's petitions to modify or suspend were denied because Employer did not prove that Claimant was physically capable of performing the open jobs to which she was referred from the standpoint of her work-related injury. (2011 Decision, COL ¶ 2.) In reaching this conclusion, the WCJ accepted as credible the August 5, 2010 deposition testimony of Claimant's medical expert and treating physician, Bruce Sicilia, M.D., that the only restrictions he would place on Claimant due to the work-related upper extremity condition he had been treating her for "is that she could not lift more than five pounds and would need to have occasional use of the right arm." (2011 Decision, FOF ¶¶ 16, 17(b).) The jobs to which Employer referred Claimant all required more than lifting five pounds. (2011 Decision, FOF ¶ 17(b).)
Shortly after the 2011 Decision was circulated, Employer provided Claimant with a Notice of Ability to Return to Work dated February 4, 2011 (Notice). (Notice, R.R. at 49a.) Therein, Employer notified Claimant that pursuant to the 2011 Decision she was "released to return to full-time work by Dr. Bruce Sicilia with restrictions of lifting no more than five (5) pounds with occasional use of the right arm." (Notice, R.R. at 49a.) Employer attached a copy of the 2011 Decision to this Notice. Thereafter, Employer notified Claimant through a Certified Rehabilitation Counselor, Terence Walsh, that two new employment opportunities were located on Claimant's behalf that fell within the restrictions imposed by Dr. Sicilia as stated in the Notice. (Letter from Terence Walsh to Claimant (March 8, 2011), R.R. at 51a-52a; 2012 Decision, FOF ¶ 6(f).) Mr. Walsh further provided Claimant with detailed information regarding both positions, the date of the interview for each position, and that transportation to and from the interviews had been arranged for Claimant. (Letter from Terence Walsh to Claimant (March 8, 2011), R.R. at 51a-52a; 2012 Decision, FOF ¶ 6(f).) Claimant did not appear for the scheduled job interviews. (2012 Decision, FOF ¶ 7(b).)
On April 7, 2011, Employer filed the suspension petition at issue in this appeal. Therein, Employer alleged that it was entitled to a suspension of Claimant's WC benefits because she failed to attend the two job interviews and that such failure constituted bad faith. Claimant filed an answer denying all material allegations. Hearings before a WCJ ensued during which Claimant was represented by counsel. In support of the suspension petition, Employer submitted the August 5, 2010 deposition testimony of Dr. Sicilia, the June 10, 2011 deposition testimony of Mr. Walsh, and documentary evidence. In opposition to the suspension petition, Claimant and her husband, Thomas Fetter, testified before the WCJ on Claimant's behalf.
The WCJ summarized Dr. Sicilia's August 5, 2010 deposition testimony, in relevant part, as follows:
[5]e. When questioned by counsel for Claimant concerning Claimant's employability, the Doctor testified "in preparation for the deposition I was asked specifically what type of work restrictions would I have imposed on Linda; and based on repeat assessments over the last seven years, it's clear to me she has very limited use of the right upper limb, the right arm. And I put a five-pound lifting restriction on the right arm, and that she should only be able to use it on an occasional basis. And I believe that would be within a reasonable degree of medical certainty that that would be the limitations that she would have for any type of work." ([Sicilia's Dep.] at 9);(2012 Decision, FOF ¶ 5(e), (f).) The WCJ found Dr. Sicilia's testimony credible and persuasive as to Claimant's restrictions and the medical facts because, inter alia, he was Claimant's treating physician and Claimant did not present any additional expert medical evidence contradicting the restrictions imposed by Dr. Sicilia. (2012 Decision, FOF ¶ 11(a).)
f. The Doctor testified that the first time that he authored any kind of restrictions for Claimant was March 24, 2010. (Id. at 30). The Doctor went on to agree that the only restrictions that he has placed upon Claimant is no lifting with the right arm more than five (5) pounds and only occasional use of the right arm. (Id.). He confirmed that this was the only restriction and that Claimant was otherwise unrestricted based upon the upper extremity condition for which he had been treating her. (Id. at 30-31.)
Mr. Walsh testified, in relevant part, as follows. During January 2009, Mr. Walsh performed an initial vocational evaluation of Claimant. (2012 Decision, FOF ¶ 6(b).) Mr. Walsh learned during this initial evaluation that Claimant did not drive and that her husband transported her everywhere because he had a valid driver's license. (2012 Decision, FOF ¶ 6(e) n.4.) Mr. Walsh reviewed the 2011 Decision and, thereafter, at the end of February 2011 or beginning of March 2011, he began vocational efforts on behalf of Claimant based on the findings in the 2011 Decision, Dr. Sicilia's deposition testimony, and the restrictions placed on Claimant by Dr. Sicilia. (2012 Decision, FOF ¶ 6(c).) Mr. Walsh contacted Claimant's counsel to arrange a second vocational assessment and possible testing with Claimant; however, counsel refused to permit Mr. Walsh to perform a second interview with Claimant. (2012 Decision, FOF ¶ 6(d).) Because Claimant refused to submit to a second vocational interview and Mr. Walsh believed he had enough information to proceed with job referrals, Mr. Walsh began to develop jobs on behalf of Claimant based on the January 2009 vocational evaluation. (2012 Decision, FOF ¶ 6(e).) Mr. Walsh sent a letter to Claimant and her counsel on March 8, 2011, by regular and certified mail, notifying Claimant that he had located two new employment opportunities that fell within the restrictions imposed by Dr. Sicilia and her transferable skills and capabilities. (2012 Decision, FOF ¶ 6(f), (l).) The first job was a full-time receptionist position with the American Cancer Society and the second job was a full-time security guard position with Lutheran Social Services. (2012 Decision, FOF ¶ 6(g), (h).) The March 8, 2011 letter instructed Claimant to apply for these positions in person on Monday, March 14, 2011. (2012 Decision, FOF ¶ 6(f).) Both positions were available for Claimant as of the date that she was advised of the positions. (2012 Decision, FOF ¶ 6(i).)
On Friday, March 11, 2011 at 5:18 p.m., Claimant's counsel faxed a letter to Mr. Walsh's office stating that counsel had left two messages for Mr. Walsh informing him that Claimant would not be attending the interviews scheduled for Monday, March 14, 2011, because Claimant's doctors "are concerned that this ongoing treatment may cause stress and medical problems on top of her well established problems." (2012 Decision, FOF ¶ 6(j).) On March 14, 2011, Mr. Walsh appeared at each prospective employer's place of business at the pre-arranged time to assist Claimant with her application and to observe personally her interaction with each employer. (2012 Decision, FOF ¶ 6(k).) Mr. Walsh arrived at the American Cancer Society several minutes before the scheduled ten o'clock interview; however, "he did not personally observe Claimant to be present." (2012 Decision, FOF ¶ 6(k).) Mr. Walsh subsequently contacted the American Cancer Society and confirmed that Claimant did not appear for the scheduled interview. (2012 Decision, FOF ¶ 6(k).) Mr. Walsh did not see the March 11, 2011 fax from Claimant's counsel before he went to the prospective employers on March 14, 2011. (2012 Decision, FOF ¶ 6(k).)
Claimant testified, in relevant part, as follows. Claimant denied receiving the February 4, 2011 Notice. (2012 Decision, FOF ¶ 7(a).) Claimant admitted that she did not attend the pre-arranged interviews with the American Cancer Society or Lutheran Social Services. (2012 Decision, FOF ¶ 7(b).) However, Claimant's non-appearance was not because she chose not to attend, but because the pre-arranged transportation never arrived to take her to the interviews. (2012 Decision, FOF ¶ 7(b).) Claimant and her husband waited at their home the entire day, but no one showed up to transport her to the interviews. (2012 Decision, FOF ¶ 7(b).) Claimant received the March 11, 2011 fax that her counsel sent to Mr. Walsh and she had a discussion with her counsel about not attending the March 14, 2011 interviews. (2012 Decision, FOF ¶ 7(c).) Claimant desires to return to work; however, she experiences migraines, spasms, and myofascial pain to the point where she cannot be touched. (2012 Decision, FOF ¶ 7(d).) Claimant also is afflicted with narcolepsy and has experienced an irregular sleep pattern for years. (2012 Decision, FOF ¶ 7(d).)
Mr. Fetter testified, in relevant part, as follows. Mr. Fetter and Claimant reside at the same address. (2012 Decision, FOF ¶ 8(a).) Mr. Fetter signed the proof of certified mail receipt for the February 4, 2011 correspondence that contained the Notice. (2012 Decision, FOF ¶ 8(b).) Although transportation was supposed to be provided for him and Claimant to attend the March 14, 2011 job interviews, the pre-arranged transportation never showed up. (2012 Decision, FOF ¶ 8(c).)
With respect to the testimony of Mr. Walsh, Claimant, and Mr. Fetter, the WCJ made the following credibility determinations:
[11]b. This Judge has carefully reviewed the vocational expert testimony of Terence Walsh and finds the testimony of Mr. Walsh to [be] competent, persuasive and credible in its entirety. In the view of this Judge, the testimony of Mr. Walsh was straight forward and not shaken upon cross examination. Although counsel for Claimant questioned Mr. Walsh about his knowledge of Claimant's supposed current physical difficulties and whether Mr. Walsh was aware of any other doctors that Claimant may be treating with, it was counsel for Claimant who refused Mr. Walsh access to Claimant so that an update in information could be obtained. In light of Claimant's refusal to participate in an updated vocational interview, this Judge found it reasonable for Mr. Walsh to rely upon the prior vocational interview and assessment of Claimant. In addition, this Judge specifically found the testimony of Mr. Walsh credible concerning the timing of his receipt of the March 11, 2011 fax from Claimant's counsel that indicated that Claimant would not be attending the March 14, 2011 job interviews. Further, this Judge accepts the testimony of Mr. Walsh that the jobs located fit within both Claimant's physical limitations as expressed by Dr. Sicilia as well as within her transferable skills and capabilities. In this matter, Claimant presented no vocational evidence that would contradict the testimony or opinions proffered by Mr. Walsh. As such, this Judge accepts the testimony of Mr. Walsh as the vocational facts of this case.
c. This Judge, having had the opportunity to observe the demeanor of Claimant when she testified live at the November 2, 2011 hearing, found the testimony of Claimant to be less than credible or persuasive. First, Claimant testified that she had not received, in her hand, or to her attention, the Notice of Ability to Return to Work. This Judge rejects this testimony given the fact that her husband, who is with Claimant 24/7 as she put it, acknowledged that he had signed for the certified letter with the Notice of Ability to Return to Work attached. In addition, this Judge rejects the testimony of Claimant concerning her assertion that she waited the entire day on March 14, 2011 for transportation to arrive and take her to the job interviews. On this point, Counsel for Claimant had already sent communication to Mr. Walsh on March 11, 2011 that indicated Claimant would not be attending the job interviews scheduled for March 14, 2011. Claimant acknowledged that she was aware of this communication and had spoken with her attorney about the same. From these facts, this Judge finds that even before the date of the scheduled interviews, Claimant had no intention of attending the same. The overall testimony of Claimant is rejected by this Judge as not credible.
d. This Judge, having had the opportunity to observe Thomas Fetter when he testified live on November 2, 2011 finds the testimony of Mr. Fetter to be credible, but only in part. Specifically, this Judge accepts the testimony of Mr. Fetter concerning his acknowledgement that he had signed for the letter containing the Notice of Ability to Return to Work. However, given the March 11, 2011 communication from Claimant's counsel indicat[ing] that Claimant would not be attending the March 14, 2011 interviews, this Judge does not find the testimony of Mr. Fetter to be particularly credible with respect to the assertion that he and his wife waited for transportation to arrive and take them to the job interviews.(2012 Decision, FOF ¶ 11(b)-(d).)
Based on the foregoing findings and credibility determinations, the WCJ concluded that Employer met its burden pursuant to Kachinski v. Workmen's Compensation Appeal Board (Vepco Construction Co.), 532 A.2d 374 (Pa. 1987), by producing medical evidence establishing that Claimant is physically able to work, by producing available jobs within Claimant's capabilities, and by proving that Claimant was referred to the open and available jobs that fit within her capabilities as they pertain to her work-related injury and her vocational capabilities. (2012 Decision, COL ¶¶ 3-4.) The WCJ concluded further that Claimant failed to follow through in good faith on the job referrals. (2012 Decision, COL ¶ 5.) Accordingly, the WCJ concluded that, because the referred jobs were for wages greater than Claimant's pre-injury average weekly wage, Employer was entitled to a total suspension of Claimant's WC benefits. (2012 Decision, COL ¶ 6.) Thus, the WCJ granted Employer's suspension petition and suspended Claimant's WC benefits as of March 14, 2011.
Because this matter involves a work injury that pre-dates the 1996 amendments to the Workers' Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1 - 1041.4, 2501-2708, it is governed by the standards relating to an injured employee's return to work set forth in Kachinski.
Claimant filed a pro se appeal with the Board from the WCJ's 2012 Decision. Therein, Claimant stated that Employer falsified information and that "[n]o Judge or Doctor released me to go back to work. Did not supply transportation to jobs, no one showed up." (Appeal from Judge's Findings of Fact and Conclusions of Law, S.R.R. at 218b.) Upon review, the Board affirmed the 2012 Decision based upon the WCJ's credibility determinations. Claimant now petitions this Court for review.
In response to Claimant's appeal, Employer filed a motion to quash asserting that Claimant failed to comply with the Board's regulations. Specifically, Employer contended that Claimant failed to state specific grounds for the appeal, ask for specific relief, serve Employer with a copy of the appeal, and provide proof of service of the appeal. (Board Op. at 1.) The Board stated that, while it was inclined to grant Employer's motion to quash, it need not act on the motion because a review of the record revealed that the entire matter turned on the WCJ's credibility determinations. (Board Op. at 1-2.)
Credibility determinations are the sole province of the WCJ and are binding on appeal unless the determinations are arbitrary and capricious. Casne v. Workers' Compensation Appeal Board (STAT Couriers, Inc.), 962 A.2d 14, 19 (Pa. Cmwlth. 2008).
"This Court's scope of review is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether errors of law were made, or whether constitutional rights were violated." Peters Township School District v. Workers' Compensation Appeal Board (Anthony), 945 A.2d 805, 810 n.8 (Pa. Cmwlth. 2008). "Substantial evidence has been defined as such relevant evidence as a reasonable person might accept as adequate to support the conclusion." Wells-Moore v. Workmen's Compensation Appeal Board (McNeil Consumer Products Co.), 601 A.2d 879, 881 (Pa. Cmwlth. 1992). The appellate role is not to reweigh the evidence or review the credibility of witnesses, but to "determine whether, upon consideration of the evidence as a whole, the [WCJ's] findings have the requisite measure of support in the record." Bethenergy Mines, Inc. v. Workmen's Compensation Appeal Board (Skirpan), 612 A.2d 434, 437 (Pa. 1992). --------
In this appeal, Claimant sets forth twelve issues in the Statement of Questions Presented portion of her brief; however, Claimant's primary arguments in the Argument portion of her brief are that no physician: (1) approved the Notice; (2) released her to return to work; or (3) approved the two jobs to which Claimant was referred by Mr. Walsh. In addition, Claimant contends that both jobs were filled by March 14, 2011. In short, Claimant is arguing that the referred jobs were not actually available because she did not receive medical clearance and the jobs were not open on the date of the scheduled interviews. Finally, Claimant argues that the pre-arranged transportation did not arrive to take her to the interviews scheduled for March 14, 2011 because someone unknown to her cancelled it. Claimant asserts she was ready and willing to go to the interviews even though no physician had released her to return to work. Therefore, Claimant argues, her failure to appear for the scheduled interviews was not in bad faith.
An employer is entitled to a suspension of benefits if it establishes that the claimant's earning power is no longer affected by her disability, such as proving that it offered the claimant suitable employment that would pay the claimant wages equal to her pre-injury position. IGA Food Mart v. Workmen's Compensation Appeal Board (Kugler), 674 A.2d 359, 363 (Pa. Cmwlth. 1996). Thus, pursuant to Kachinski, Employer had to prove the following in order to prevail on its suspension petition: (1) a change in Claimant's condition through the production of medical evidence; and (2) a referral to an actually available job that fit within the physical capabilities or restrictions for which Claimant had been given medical clearance. Kachinski, 532 A.2d at 380. A job is considered "actually available" if the proffered job receives medical clearance and the claimant is advised of that clearance while the job is still open. Ryan v. Workmen's Compensation Appeal Board (Port Erie Plastics, Inc.), 639 A.2d 866, 868 (Pa. Cmwlth. 1994). Once the employer meets its burden, "[t]he claimant must then demonstrate that [s]he has in good faith followed through on the job referral(s)." Kachinski, 532 A.2d at 380. If the claimant establishes that she acted in good faith, she remains entitled to benefits. Id.
In the present matter, the WCJ found, based on Mr. Fetter's testimony, that Claimant received the Notice. (2012 Decision, FOF ¶ 11(d).) The Notice advised Claimant that, pursuant to the 2011 Decision, she "was released to return to full-time work by Dr. Bruce Sicilia with restrictions of lifting no more than five (5) pounds with occasional use of the right arm." (Notice, R.R. at 49a.) Attached to the Notice was a copy of the 2011 Decision. (Notice, R.R. at 49a.) Therefore, Claimant was advised by Employer that she was medically cleared to perform jobs that fit within the restrictions imposed by Dr. Sicilia. Moreover, in the instant matter, the WCJ found Dr. Sicilia's testimony credible and persuasive as to Claimant's restrictions and her ability to return to work. (2012 Decision, FOF ¶ 11(a).) Thus, contrary to Claimant's assertion, she was released to return to work with restrictions.
Claimant also argues that the specific jobs to which she was referred were not medically approved by Dr. Sicilia or any other physician. However, Employer was not required to obtain medical clearance for each of the jobs to which Claimant was referred. Employer only had to prove that Claimant was apprised that she was given medical clearance to perform work within the restrictions imposed by Dr. Sicilia and that the referred jobs fit within those restrictions. See IGA Food Mart, 674 A.2d at 361 (stating that "it is not necessary to obtain medical clearance for each specific job referral when the physician previously established restrictions for the claimant"; "employer need only prove that claimant was released to perform a certain category of work . . . and that the available position falls within that category"); Lukens, Inc., v. Workmen's Compensation Appeal Board (Williams), 568 A.2d 981, 984 (Pa. Cmwlth. 1989) (stating that it was unnecessary for an employer to obtain medical clearance for each job that it referred to the claimant; employer still "must prove that Claimant was apprised of medical approval for a category of position"). As stated previously, the WCJ accepted Dr. Sicilia's testimony as credible that Claimant could return to work with restrictions, Claimant was advised by Employer that she was given medical clearance to return to work with restrictions, and the WCJ found credible Mr. Walsh's testimony that the two jobs to which Claimant was referred fit "within both Claimant's physical limitations as expressed by Dr. Sicilia as well as within her transferable skills and capabilities." (2012 Decision, FOF ¶ 11(b).)
In addition, while it appears that Claimant is afflicted with other medical issues that may affect her ability to work, she did not present any medical evidence to show that she could not return to a job that fit within the restrictions imposed by Dr. Sicilia due to her work-related injury. Moreover, Employer was under no obligation to consider Claimant's other non-work-related medical issues when referring her to a position within her work-related restrictions. See Urban v. Workers' Compensation Appeal Board (Burlington Coat Factory), 763 A.2d 564, 566 (Pa. Cmwlth. 2000) (holding that an employer does not have to take into consideration a claimant's non-work-related disabilities in determining whether a job is available under the Kachinski standard).
Claimant contends further that the two jobs were not open and available on March 14, 2011 because they had been filled by that date. As support for this contention, Claimant asserts that her counsel "looked these jobs up online" and the application deadline for the security guard position was February 25, 2011. (Claimant's Br. at 17.) She asserts further that she called about the receptionist position and was informed that the job had already been filled. However, Claimant does not point to any evidence in the record to support her contention that the jobs had already been filled on March 14, 2011 or when Mr. Walsh advised her of the open positions. The WCJ accepted as credible Mr. Walsh's testimony that the two jobs were available as of the date Claimant was advised of the positions. (2012 Decision, FOF ¶¶ 6(i), 11(b).) Moreover, the WCJ specifically found that Claimant did not present any vocational evidence in opposition to Mr. Walsh's testimony. (2012 Decision, FOF ¶ 10.) Accordingly, there is no evidence in the record to support Claimant's contention that the two jobs were not open and available because they were already filled on the date of the scheduled interviews.
Finally, Claimant argues that her failure to appear for the scheduled interviews was due solely to a lack of transportation. Claimant asserts that, at the time of the scheduled interviews, she and her husband were without a car; therefore, she needed transportation to the interviews. She asserts that, although Mr. Walsh arranged transportation, no one showed up to transport her to the interviews and that, when she called the transport company on March 14, 2011, she was informed that the arranged transportation had been cancelled. Therefore, Claimant argues, there was no bad faith on her part.
Here, the WCJ did not credit Claimant's explanation that she waited all day for transportation to take her to the scheduled interviews and that a lack of transportation was the only reason she did not appear for the scheduled interviews. (2012 Decision, FOF ¶ 11(c).) Instead, the WCJ found that Claimant's counsel had already communicated to Mr. Walsh on March 11, 2011 that Claimant would not be attending the March 14, 2011 interviews and that Claimant was aware of this communication through a conversation with her counsel. (2012 Decision, FOF ¶¶ 7(c), 11(c).) Based on these facts, the WCJ specifically found "that even before the date of the scheduled interviews, Claimant had no intention of attending the same." (2012 Decision, FOF ¶ 11(c).) Accordingly, Claimant did not meet her burden of showing that she followed through on the job referrals in good faith.
For the foregoing reasons, the Board's Order is affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, July 16, 2014, the Order of the Workers' Compensation Appeal Board entered in the above-captioned matter is AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge