Opinion
No. 176 C.D. 2011
11-21-2011
Sharon Graaf, Petitioner v. Department of Public Welfare, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JOHNNY J. BUTLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Sharon Graaf (Claimant) petitions for review of an adjudication of the Secretary of Public Welfare (Secretary) terminating her Act 534 benefits. In doing so, the Secretary affirmed, in part, an order of the Bureau of Hearings and Appeals (Bureau) adopting the recommendation of an Administrative Law Judge (ALJ) that Claimant was permanently disabled and, as such, ineligible for Act 534 benefits. The Secretary rejected the ALJ's factual finding that Claimant was permanently disabled. Claimant asserts that the Secretary lacked authority to substitute his factual findings for those of the ALJ and, further, that Act 534 provides benefits where the claimant has suffered permanent injuries. For the reasons herein explained, we affirm the Secretary.
Act of December 8, 1959, P.L. 1718, commonly known as Act 534, as amended, 61 P.S. §§951-952.
In October 2003, Claimant began working as a registered nurse for the Department of Public Welfare (Department) at Clarks Summit State Hospital, a facility for mentally impaired individuals. On October 5, 2005, Claimant sustained an injury when a resident in a wheelchair rolled over her left foot and ankle. Claimant began receiving Act 534 benefits and workers' compensation based upon an average weekly wage of $932.65.
In 2006, the Department filed a petition to terminate compensation benefits, alleging that Claimant had fully recovered from her injuries. The Workers' Compensation Judge determined that Claimant continued to experience pain and swelling from her work injury and denied the Department's termination of benefits.
In 2009, the Department requested the termination of Claimant's Act 534 benefits. John Nolan, M.D., an orthopedic surgeon, concluded after an independent medical examination (IME) that Claimant had fully recovered from her work-related injuries and was capable of returning to work. The Department issued a return to work order on December 17, 2008, based on the IME. Claimant did not return to work.
At the hearing, Dr. Nolan testified that he examined Claimant on November 19, 2008. He noted that Claimant had suffered injuries other than her work injury. In 1986, she broke both of her ankles and had surgery to heal the fractures. In 2004, she fell, injuring her knees, neck, back, and right shoulder. Following that injury, she had surgery on her knees, which did not succeed in correcting her problems. In 2005, Claimant was diagnosed with advanced osteoarthritis in her left ankle as a result of the 1986 injury.
Dr. Nolan explained that the records from the hospital emergency room, taken on the day of Claimant's work accident, i.e., October 5, 2005, showed that she suffered a contusion and strain to her left ankle. Dr. Nolan found some swelling and limited range of motion in Claimant's left ankle but no muscle atrophy. He believed that the swelling and restricted motion were degenerative in nature and unrelated to the work injury because they were present prior to the work injury. He opined that Claimant had recovered from the work injury and that only her pre-existing conditions remained. He explained that degenerative joint disease in her left ankle may have been exacerbated by the 2005 work injury but that this exacerbation had fully resolved.
During the IME, Claimant contended that reflex sympathetic dystrophy (RSD) in her left foot prevented her from returning to work. Dr. Nolan explained that RSD symptoms include muscle atrophy, hyperhydrosis, redness of the skin, coldness of the skin, cold sensitivity and demineralization of the bone. He testified that Claimant did not exhibit any of these symptoms and noted that she had not been treated for RSD by her physician.
Claimant presented the testimony of Charles M. Manganiello, M.D., a family practitioner who has treated Claimant for approximately 20 years. He diagnosed Claimant with tarsal tunnel syndrome (TTS) or RSD because of her pain, swelling, sweating, skin redness and limited range of motion. He stated that the work injury exacerbated Claimant's left ankle arthritis, causing the nerve damage that led to TTS or RSD. Dr. Manganiello opined that Claimant could not return to her nursing position with the Department.
Claimant testified that her foot was run over by a wheelchair and her foot remained stuck under the wheelchair for 10 to 12 seconds. The next day, when her foot continued to swell, she went to the doctor. She has not returned to work.
Claimant stated that the pain in her left foot was constant. At times her foot becomes numb and will not move, causing her to trip and fall. She cannot walk long distances because walking increases her pain. Claimant stated that she cannot work because she cannot help patients in and out of wheelchairs and cannot walk or stand for long periods of time.
The ALJ found Dr. Nolan more credible on the question of whether Claimant had RSD. The ALJ found Dr. Manganiello more credible on the question of whether Claimant's left foot and ankle pain was related to her work injury. The ALJ found that Claimant exaggerated her symptoms but, nevertheless, found her to be permanently disabled by her work injury. However, the ALJ concluded that Claimant was ineligible for benefits because Act 534 was intended to provide benefits to employees with temporary, not permanent, injuries. Because Claimant was permanently disabled, the ALJ concluded that she was not entitled to Act 534 benefits and recommended that her benefits be terminated.
The Bureau adopted the ALJ's recommendation in its entirety without further discussion. Claimant then petitioned for reconsideration to the Secretary. The Secretary granted reconsideration and issued an order upholding the Bureau's termination of benefits, but setting aside the finding that Claimant's work injury was permanent.
The Secretary issued new findings of fact and conclusions of law. He found that in 1986 Claimant broke both of her ankle bones, which resulted in deformation and degenerative osteoarthritis in the left ankle. He concluded that it was the 1986 ankle injury that prevented Claimant from being able to walk or sit for long periods of time and prevented her from working as a nurse, and not the 2005 work injury.
The Secretary found Dr. Nolan's testimony more credible and persuasive than Dr. Manganiello on the question of whether Claimant's current symptoms were work-related. The Secretary rejected Dr. Manganiello's opinion that Claimant was unable to return to her job because that opinion was based solely on Claimant's subjective complaints, which the Secretary found to be exaggerated. Noting that Claimant had advanced osteoarthritis and a deformed left ankle prior to the 2005 work injury, the Secretary found that her work injury had healed and that her ongoing pain was unrelated to her work injury. The Secretary specifically found that Claimant did not prove that she suffered from RSD. Concluding that Claimant's work injury did not prevent her from returning to work at her nursing position, the Secretary terminated Claimant's Act 534 benefits.
Claimant petitioned for this Court's review. First, Claimant argues that the Secretary lacked authority to substitute his own credibility determinations and factual findings for those of the ALJ. Second, assuming that the ALJ's decision is the proper focus of our review, Claimant then argues that the ALJ erred in determining that Act 534 benefits must be terminated where the disability is found to be permanent rather than temporary.
Our scope of review is limited to determining whether constitutional rights have been violated, an error of law committed, or whether the findings of fact are supported by substantial evidence. Mihok v. Department of Public Welfare, 670 A.2d 227, 230 n.2 (Pa. Cmwlth. 1996).
We begin with Claimant's second issue because it has been recently decided by this Court. Section 1 of Act 534 provides a full salary to personnel of certain agencies who sustain a work-related injury "until the disability ... no longer prevents his return as an employe of such department ... at a salary equal to that earned by him at the time of his injury." 61 P.S. § 951. In determining that an employee with a permanent disability is ineligible for Act 534 benefits, the ALJ looked to the Heart and Lung Act, which provides a full salary to certain law enforcement employees injured in the course of employment. Because the Heart and Lung Act provided benefits only for temporary injuries, the ALJ reasoned that Act 534 benefits were likewise intended to provide benefits only where injuries were of a temporary duration.
It provides, in relevant part, as follows:
Any employe of a State penal or correctional institution under the Bureau of Correction of the Department of Justice and any employe of a State mental hospital or Youth Development Center under the Department of Public Welfare, who is injured during the course of his employment by an act of any inmate or any person confined in such institution or by any person who has been committed to such institution by any court of the Commonwealth of Pennsylvania or by any provision of the "Mental Health Act" and any employe of County Boards of Assistance injured by act of an applicant for or recipient of public assistance and any employe of the Department of Public Welfare who has been assigned to or who has volunteered to join the fire fighting force of any institution of the Department of Public Welfare injured while carrying out fire fighting duties, shall be paid, by the Commonwealth of Pennsylvania, his full salary, until the disability arising therefrom no longer prevents his return as an employe of such department, board or institution at a salary equal to that earned by him at the time of his injury.61 P.S. § 951 (footnote omitted).
However, in McWreath v. Department of Public Welfare, 26 A.3d 1251, 1259 (Pa. Cmwlth. 2011), we explained that although "both the Heart and Lung Act and Act 534 serve the same purpose of providing full salary to employees of certain agencies when they sustain a work-related injury, each statute sets forth different requirements for benefit eligibility." Act 534 does not use the word "temporary," and we declined to add that word to the statute. Accordingly, we held that "an employee is entitled to Act 534 benefits as long as work-related 'disability,' whether temporary or permanent, prevents him or her from performing duties of a position with the employer at a pre-injury salary." Id. at 1258.
Based on McWreath, we hold that the ALJ erred in concluding that Claimant's Act 534 benefits had to be terminated because her injury was permanent. The ALJ's legal conclusion, while erroneous, is irrelevant if we affirm the Secretary's factual finding that Claimant was fully recovered. We turn now to that issue.
Claimant contends that the Secretary lacked authority to alter the ALJ's factual finding that she was permanently disabled by her work injury. The Department counters that the Secretary is vested with final fact-finding authority, and, thus, error did not occur.
In Siemon's Lakeview Manor Estate v. Department of Public Welfare, 703 A.2d 551, 553-554 (Pa. Cmwlth. 1997), the Secretary reversed the factual findings of the Bureau in holding that a nursing facility was not entitled to reimbursement of certain costs associated with nursing care services. The nursing facility appealed to this Court, claiming that the Secretary did not have authority to reverse the Bureau's factual findings.
In deciding this legal issue, we reviewed the applicable statutes and regulations. Section 206 of the Administrative Code of 1929, provides that the Secretary of Public Welfare shall "personally" or through a "duly authorized agent" carry out his duties as agency head. 71 P.S. § 66. The General Rules of Administrative Practice and Procedure, which govern hearings before state agencies, such as the Department, authorize the "agency head" to personally conduct hearings or to appoint a presiding officer to conduct hearings. 1 Pa. Code §§35.123, 35.185. Here, the legislature has expressly made "the Secretary" the "head" of the Department. 71 P.S. §66. Consistent with these principles, we held that even though the Secretary did not view the demeanor of witnesses, this did not preclude the Secretary from exercising final fact-finding authority.
Act of April 9, 1929, P.L. 177, as amended, 71 P.S. §66. It states, in relevant part, as follows:
Each administrative department shall have as its head an officer who shall, either personally, by deputy, or by the duly authorized agent or employe of the department, and subject at all times to the provisions of this act, exercise the powers and perform the duties by law vested in and imposed upon the department.71 P.S. §66.
The following officers shall be the heads of the administrative departments following their respective titles:
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Secretary of Public Welfare, of the Department of Public Welfare[.]
1 Pa. Code §35.123 states, in full, as follows:
Hearings will be held before the agency head or a presiding officer designated under Subchapter E (relating to presiding officers).
1 Pa. Code §35.185 states, in full, that "[w]hen evidence is to be taken in a proceeding, either the agency head or, when designated for that purpose, one or more of its members, examiners or other representative appointed according to law, may preside at the hearing." --------
Again, in A.O. v. Department of Public Welfare, 838 A.2d 35 (Pa. Cmwlth. 2003), we reiterated that the Secretary, as the agency head, is vested with fact-finding authority. We further explained as follows:
While a fact finder's observation of the demeanor of a witness has traditionally been viewed as an important factor in determining credibility, administrative adjudicators are permitted to determine the credibility of testimony from the reading of a transcript. Administrative agencies often use a system of adjudication where a hearing examiner or presiding
officer takes evidence and the ultimate fact finder is a board or commission, which has the power to make findings of fact based solely on a review of the record. See, e.g., Kramer v. Department of Insurance, 654 A.2d 203 (Pa. Cmwlth. 1995) (presiding officer conducted an evidentiary hearing, but the adjudication was issued by the Insurance Commissioner); ... An adjudicative method where the ultimate decision in a case is made by an administrative fact finder who did not hear the testimony does not deny a litigant due process of law.Id. at 38, n.5 (emphasis added) (citation omitted).
More recently in Duvall v Department of Corrections, 926 A.2d 1220 (Pa. Cmwlth. 2007), we considered whether the Secretary of Corrections could reject a hearing examiner's factual findings made in a hearing to determine eligibility for Heart and Lung benefits. The Secretary found that the claimant had fully recovered and was able to return to work. The claimant appealed to this Court, arguing that the Secretary could not make credibility determinations contrary to those of the hearing examiner. We disagreed, explaining that the hearing examiner was merely the designee of the Secretary, who was "the ultimate finder of fact in the instant matter" and able to make different credibility determinations. Id. at 1225.
We reject Claimant's contention that it was impermissible for the Secretary to make new factual findings, including credibility determinations, that differed from those of the administrative law judge appointed to take evidence and make the record for the Secretary. The contrary principle has been well established in legislation, regulations and case law precedent.
Accordingly, the order of the Secretary is affirmed.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 21st day of November, 2011, the order of the Department of Public Welfare dated January 12, 2011, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge