Opinion
No. 996 C.D. 2011
02-10-2012
Kenneth Keppol, Petitioner v. Workers' Compensation Appeal Board (Acme Markets, Inc.), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
This case was assigned to the opinion writer before January 7, 2012, when Judge Pellegrini became President Judge.
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Kenneth Keppol (Claimant) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) that affirmed the decision of the Workers' Compensation Judge (WCJ) suspending Claimant's benefits because he returned to work without a wage loss. In this appeal, we consider whether the WCJ issued a reasoned decision. Concluding that the WCJ did so, we affirm.
Claimant injured his back at work on June 11, 2008. Acme Markets, Inc. (Employer) issued a notice of compensation payable for a thoracic and lumbar strain and sprain and paid Claimant total disability benefits. Claimant returned to unrestricted work earning his pre-injury wages on March 16, 2009. As a result, Employer filed a suspension petition. Claimant did not file an answer.
A hearing was held before the WCJ. In support of its petition, Employer offered two affidavits attesting that Claimant had returned to work with no wage loss. Claimant did not dispute Employer's affidavits or object to their admission. Claimant did express concern about whether he would be paid when he left work to visit his doctor, stating "I have to take off work for that because my schedule doesn't accommodate with the doctor's schedule." Reproduced Record at 7a (R.R. ___). The doctor's visits were for atrial fibrillation, a condition not accepted as part of the work injury. The WCJ advised Claimant to consult with his attorney on that issue. The WCJ then orally granted Employer's suspension petition, without objection from Claimant.
The WCJ followed up with a written decision which states as follows:
Pursuant to agreement of the parties, this order follows:
ORDER
AND NOW, to wit, this Thursday, July 08, 2010, it is hereby ORDERED that Employer's Petition for Suspension is GRANTED.
Claimant's benefits are suspended as of March 16, 2009 based upon Claimant's return to work at that time with no loss in wages. [Employer] remains liable for Claimant's work-related medical expenses.
The record is closed and all papers are returned to the Bureau. R.R. 28a.
Claimant appealed and the Board affirmed. Claimant now petitions for this Court's review.
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).
Claimant raises two issues for our consideration. First, Claimant argues that the WCJ failed to issue a reasoned decision. Second, Claimant contends that the matter must be remanded for the WCJ to develop the record and make findings on whether Employer's counsel improperly communicated directly with Claimant.
Turning to the first issue, Claimant argues that the WCJ's decision is not reasoned because it lacks numbered findings of fact and conclusions of law. We disagree.
Section 422(a) of the Workers' Compensation Act requires WCJs to issue reasoned decisions
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §834.
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 so that all can determine why and how a particular result was reached.77 P.S. §834. Our Supreme Court has explained that:
A decision is "reasoned" for purposes of Section 422(a) if it allows for adequate review by the [Board] without further elucidation and if it allows for adequate review by the appellate courts under applicable review standards. A reasoned decision is no more, and no less.Daniels v. Workers' Compensation Appeal Board (Tristate Transport), 574 Pa. 61, 76, 828 A.2d 1043, 1052 (2003).
The WCJ's decision is reasoned. It is true that the WCJ's decision does not take the form of numbered findings of fact and conclusions of law; however, it is of no moment. There was no conflicting evidence in this case for the WCJ to discuss nor was it necessary for the WCJ to repeat the particulars of a very short hearing and sparse record. The WCJ's order contained the requisite findings that: (1) Claimant returned to work on March 16, 2009; (2) Claimant had no wage loss; and (3) the parties agree on these facts. It is axiomatic that an employer is entitled to a suspension where the claimant returns to work without a loss of wages. Sweeney v. Workmen's Compensation Appeal Board (Whitman's Chocolates), 695 A.2d 877, 880 (Pa. Cmwlth. 1997). The WCJ had no choice but to grant a suspension, and we are able to conduct a meaningful appellate review of that decision.
Claimant does not deny that he returned to work without a wage loss and does not argue that the WCJ's decision is not supported by substantial evidence.
Next, Claimant contends that Employer's counsel communicated directly with Claimant, which is inappropriate conduct for a lawyer who knows that the opposing party is represented by counsel. Claimant asks us to remand the matter so that the WCJ can take evidence and make findings on that topic. We decline. Whether Employer's counsel may have violated the Pennsylvania Rules of Professional Conduct is completely irrelevant to the issue before the WCJ, i.e., whether Employer was entitled to a suspension. Claimant returned to work, and that ends the inquiry.
Pennsylvania Rule of Professional Conduct 4.2 states as follows:
Communication with Person Represented by Counsel.
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
Accordingly, the order of the Board is affirmed.
/s/_________
MARY HANNAH LEAVITT, Judge
ORDER
AND NOW, this 10th day of February, 2012, the order of the Workers' Compensation Appeal Board dated May 5, 2011, in the above captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge
204 Pa. Code §81.4, Rule 4.2.