Opinion
No. 678 C.D. 2014
12-12-2014
Scott Motter, Petitioner v. Department of Public Welfare, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Scott Motter petitions for review of the Order of the Department of Public Welfare (DPW), Bureau of Hearings and Appeals (Bureau), that adopted, in its entirety, the recommended decision of the Administrative Law Judge (ALJ) denying Motter's appeal to reinstate benefits pursuant to Section 1 of the act commonly referred to as Act 534. DPW determined that Motter forfeited his eligibility for Act 534 benefits when he voluntarily left DPW for a new position at the Department of Environmental Protection (DEP). Motter argues on appeal that the ALJ erred in finding that he forfeited his employment because his departure from DPW was in the nature of a transfer between departments and his transfer was not a result of circumstances beyond his control. Finding substantial evidence supporting the ALJ's factual findings, and discerning no error of law, we affirm.
Act of December 8, 1959, P.L. 1718, as amended, 61 P.S. § 951. Section 1 of Act 534 states, in part, that the Commonwealth shall pay an employee, "who is injured during the course of his employment," his "full salary, until the disability arising therefrom no longer prevents his return as an employe of [DPW]." 61 P.S. § 951.
We note that the Bureau adopted the ALJ's recommended decision by Order dated March 31, 2014 and that Motter then filed a timely request for reconsideration. However, before his request for reconsideration was acted upon by DPW, Motter filed his Petition for Review with this Court seeking review of the March 31, 2014 Order.
The following facts are undisputed. Motter was employed by DPW as a Licensed Practical Nurse at the Warren State Hospital (Hospital) on August 9, 2007 when he was injured during the course of his employment as a result of an altercation with a patient. (ALJ Adjudication, Findings of Fact (FOF) ¶¶ 1, 3.) Motter continued to be employed by DPW until February 27, 2009 and periodically received benefits under Act 534 for work lost between the date of his injury and his last day of work. (FOF ¶¶ 4-7.) While on injury leave from DPW, Motter took a civil service exam with the State Civil Service Commission on two separate occasions seeking a position as an Oil and Gas Inspector for DEP. (FOF ¶ 8.) After not being selected for a DEP position during a first round of interviews, he was selected after a January 2009 interview. (FOF ¶¶ 12, 13, 19, 20.)
On January 5, 2009, DPW mailed a letter to Motter regarding the provisions of the injury leave program, wherein DPW's Workers' Compensation Coordinator encouraged Motter to "consider applying for Social Security disability benefits if it appears that [his] disability will be continuous for at least 12 months." (FOF ¶ 14; Ex. A-3, R.R. at 60a.) Thereafter, Motter accepted the position with DEP and the parties stipulated that, as of February 28, 2009, Motter worked for DEP as an Oil and Gas Inspector on a full-time basis and was no longer an employee of DPW. (FOF ¶¶ 21, 22.) Motter's Act 534 benefits stopped on February 28, 2009. (FOF ¶ 23.)
Motter was not fully recovered when he left his position at DPW and underwent surgery on May 1, 2013 to address a condition related to the injury he sustained during the course of his employment with DPW. (FOF ¶ 24.) Motter received workers' compensation benefits from May 1, 2013 to July 1, 2013. (FOF ¶ 25.) Motter subsequently filed a request with DPW for Act 534 benefits from the date of the surgery until July 1, 2013, which was denied. (FOF ¶ 26-27.) Motter appealed the denial and a hearing was held before the ALJ.
The ALJ relied on our decisions in Tuggle v. Department of Public Welfare, 575 A.2d 664, 666 (Pa. Cmwlth. 1990), and McWreath v. Department of Public Welfare, 26 A.3d 1251, 1259 (Pa. Cmwlth. 2011), to conclude that Motter was not eligible for Act 534 benefits. (ALJ Adjudication at 7-9.) The ALJ reasoned that Tuggle established a general rule that Act 534 benefits are contingent upon returning as an employee once the injuries cease to exist. (ALJ Adjudication at 7-8.) Although the ALJ recognized that this general rule would preclude Motter's eligibility for benefits, she further recognized that our decision in McWreath created an exception to the general rule. (ALJ Adjudication at 8.) The ALJ construed McWreath as allowing an employee to maintain eligibility for Act 534 benefits where the employee loses his or her position due to "any event beyond the disabled employee's control." (ALJ Adjudication at 8 (citing McWreath, 26 A.3d at 1259).) However, the ALJ further determined, pursuant to McWreath, that "former DPW employees are not eligible for Act 534 benefits when that employee forfeits employment by his or her own action." (ALJ Adjudication at 8 (citing McWreath, 26 A.3d at 1260).) With these principles in mind, the ALJ determined as follows.
The ALJ found that Motter was not forced to leave DPW. (ALJ Adjudication at 8.) The ALJ found that Motter applied for positions at DEP and interviewed for a position prior to the January 5, 2009 letter from DPW's Workers' Compensation Coordinator that Motter claimed caused him to believe he had no choice but to look for another job. (ALJ Adjudication at 8.) The ALJ concluded that because the record demonstrates that Motter's transfer from DPW to DEP "occurred because [Motter] took Civil Service exams, completed availability surveys, went on job interviews, and accepted a position with the DEP absent any adverse action taken by DPW," he forfeited his employment with DPW by his own action. (ALJ Adjudication at 9.) Thus, Motter did not fall within the McWreath exception to the general rule that Act 534 benefits are contingent upon continued employment. (ALJ Adjudication at 9.) Motter now petitions this Court for review.
In this appeal, Motter does not continue the argument that the January 5, 2009 letter caused him to believe he had no choice but to find a new job.
This Court's scope of review on direct appeal from a final order of an agency is to determine whether the petitioner's constitutional rights were violated, an error of law was committed, or a necessary finding of fact is not supported by substantial evidence. C.E. v. Department of Public Welfare, 97 A.3d 828, 831 n.3 (Pa. Cmwlth. 2014). An adjudication by DPW must be sustained if it is in accordance with the law and supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.
Section 1 of Act 534 provides in relevant part:
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". . . 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. Under the plain terms of the statute, persons who continue to be employed by DPW during periods of disability are eligible to receive benefits until the disability no longer prevents their return to a position within DPW. This Court has construed Act 534 as providing benefits only to those currently employed with a covered department, including DPW, or to those who exited from the work force due to events beyond the employee's control. See McWreath, 26 A.3d at 1259 (interpreting the Act as providing benefits to those that lose their employment due to "any event beyond the disabled employee's control, such as a furlough due to closing of a facility"); DeJohn v. Department of Public Welfare, 657 A.2d 1017, 1020 (Pa. Cmwlth. 1995) (holding that temporary employees lose their Act 534 benefits eligibility once their term expires); Tuggle, 575 A.2d at 666 (holding that an employee was not entitled to benefits under Act 534 because he was terminated due to misconduct that occurred prior to the injury).
All medical and hospital expenses incurred in connection with any such injury shall be paid by the Commonwealth of Pennsylvania until the disability arising from such injury 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.
In McWreath we addressed whether an employee who was permanently disabled and unable to return to her position with DPW was entitled to benefits. McWreath, 26 A.3d at 1253. In that case, we construed the statute broadly and reasoned that the phrase "as an employe" in Section 1 of Act 534 must be construed to mean "the employee's capability to perform duties of a position with the employer paying the pre-injury salary, regardless of the availability of such position." Id. at 1259. We also concluded that, because the statute focuses on whether the "disability prevents the employee's return" to work, the statute "does not require injured employees to have current membership in the work force to be eligible for benefits." Id. at 1259. A disabled, non-temporary, employee only loses eligibility when "the employee has forfeited his employment status by his or her own action, such as resignation, retirement or removal for misconduct." Id. at 1260.
The issue presented by Motter in this case is whether, under Section 1 of Act 534 and this Court's holding in McWreath, his transfer to DEP constituted a forfeiture of his employment by his own actions in light of the fact that he transferred, rather than resigning, retiring, or being removed, without a break in service, to a position within his restrictions because his injury-related disability prevented his return as an employee of DPW. In support of his assertion that he should be deemed eligible for Act 534 benefits under Section 1 and McWreath, Motter first argues that the ALJ erred by finding that his departure from DPW was due to his own actions. Motter contends that his disability prevented his return to DPW and he was forced to find other employment. The ALJ, however, found no evidence that DPW attempted to compel Motter to leave his employment. (ALJ Adjudication at 8.) On the contrary, the testimony of the Human Resources Director at the Hospital shows that Motter could have stayed on with DPW and continued to receive benefits with no negative repercussions. (ALJ Adjudication at 8; Hr'g Tr. at 51-54, R.R. at 112a-15a.) Since there is substantial evidence in the record supporting the ALJ's finding that Motter's departure was within his own control, we cannot disturb her finding. See Sell v. Workers' Compensation Appeal Board (LNP Engineering), 771 A.2d 1246, 1250 (Pa. 2001) (noting that an appellate court undertaking a substantial evidence review must read the evidence in the light most favorable to the prevailing party below and only overturn findings of fact "if they are arbitrary and capricious").
Next, Motter contends that his departure from DPW was in the nature of a "transfer" and, as such, there was no break in service and he did not "forfeit[] an employment status by his . . . own action." McWreath, 26 A.3d at 1260. To support this argument, Motter relies on Section 801 of the Civil Service Act, where it lists "rejection on probation, retirement, resignation or removal" as the mechanism by which an employee may be permanently separated from service. 71 P.S. § 741.801. Motter contends that he did not forfeit his position because he was not permanently separated through one of the processes listed in the Civil Service Act.
Act of August 5, 1941, P.L. 752, as amended, 71 P.S. § 741.801.
Motter's argument is, under the current circumstances, a distinction without a difference. Although the language of "transfer" is not listed in Section 801, a transfer between agencies pursuant to Section 705 of the Civil Service Act requires that transfers be accomplished in the manner prescribed by the Civil Service Commission's (Commission) regulations. 71 P.S. § 741.705. A transfer under the Commission's regulations "requires the written consent of the employee and the present employer." 4 Pa. Code § 99.22. Accordingly, even if we were to deem Motter's acceptance of the position with DEP as a transfer, by consenting to the transfer, the fact remains that he forfeited his position with DPW by his own action. We, therefore, conclude that the ALJ did not err and Motter did, for purposes of Act 534, forfeit his position with DPW prior to joining DEP.
Finally, Motter asserts that the ALJ erred by narrowly interpreting McWreath in a manner inconsistent with our mandate to construe statutes liberally. Motter would have us extend our construction of Act 534 and hold that an employee who leaves DPW, but not the work force, should maintain eligibility for Act 543 benefits so long as the employee is not medically capable of returning to a position at DPW. Although we are required to construe statutes "liberally [] to effect their objects and to promote justice" pursuant to Section 1928(c) of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1928(c), we cannot extend Act 534 this far. The purpose of Act 534 is to attract and keep employees undertaking certain dangerous employment tasks for the Commonwealth by assuring employees that they will receive full income during periods where they cannot work due to injuries inflicted during the course of employment. McWreath, 26 A.3d at 1255. To hold that a disabled employee may take Act 534 benefits with them to a position with a department not covered by Act 534, with no prospect of returning to the department by which he or she was employed at the time of the injury, would not promote the goal of keeping employees in these dangerous positions.
Relatedly, Motter also argues that the ALJ misread Section 1 of Act 534 when she reasoned that the general rule is that Act 534 benefits are only available to current DPW employees and that McWreath provides an exception to the general rule. Motter contends that, by interpreting Act 534 broadly, McWreath established the general rule, not the exception to the rule. Whether the ALJ called it an exception to the general rule or a broadening of the general rule is of no moment since the ALJ correctly applied the law. Thus, we do not find Motter's arguments persuasive.
For the forgoing reasons, DPW's Order is affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, December 12, 2014, the Order of the Department of Public Welfare, Bureau of Hearings and Appeals, entered in the above-captioned matter is AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
DISSENTING OPINION BY SENIOR JUDGE FRIEDMAN
Because Scott Motter, who was injured while working for the Department of Public Welfare (DPW), remains disabled, and such disability prevents him from performing job duties for DPW, I would conclude that Motter is entitled to a reinstatement of benefits pursuant to Section 1 of the act commonly referred to as Act 534, for the period he was receiving workers' compensation benefits and earning less than his time-of-injury salary. Accordingly, I respectfully dissent.
Act of December 8, 1959, P.L. 1718, as amended, 61 P.S. §951.
Workers' Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708. Act 534 benefits are intended to supplement workers' compensation benefits. Mirarchi v. Department of Corrections, 811 A.2d 1096, 1100 (Pa. Cmwlth. 2002).
Motter was injured in the course of his employment with DPW on August 9, 2007, as a result of an altercation with a patient. Motter received Act 534 benefits. Because of his physical disability, Motter could not perform services for DPW. Therefore, Motter accepted a position with the Department of Environmental Protection (DEP) on February 28, 2009, at which time he stopped receiving Act 534 benefits.
On May 1, 2013, Motter underwent surgery to address a condition related to the DPW work-related injury. Motter received workers' compensation benefits from May 1, 2013, through July 1, 2013. Motter sought reinstatement of Act 534 benefits from DPW for this same period, which the Administrative Law Judge (ALJ) denied. The Bureau of Hearings and Appeals (Bureau) thereafter adopted the ALJ's recommended decision and denied Motter's request to reinstate Act 534 benefits.
Although Motter's salary at DEP is greater than his time-of-injury salary, his workers' compensation benefits are less.
I would conclude that based on the plain language of Act 534, Motter is entitled to Act 534 benefits during any period in which he is unable to work for DPW because of his disability and is receiving less than his time-of-injury salary. Section 1 of Act 534 provides in relevant part:
Any employe of . . . a State mental hospital . . . who is injured during the course of his employment by an act of any . . . person confined in such institution or by any person who has been committed to such institution . . . 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 (emphasis added).
* * *
During the time salary for such disability shall be paid by the Commonwealth of Pennsylvania any workmen's compensation received or collected for such period shall be turned over to the Commonwealth and paid into the General Fund . . . .
"Under the plain language of Section 1 of Act 534, an employee is entitled to Act 534 benefits [time-of-injury salary] as long as work-related 'disability' prevents the employee's return as the [DPW's] employee at the pre-injury salary." McWreath v. Department of Public Welfare, 26 A.3d 1251, 1259 (Pa. Cmwlth. 2011). Here, Motter's disability prevented him from performing duties for DPW. "[T]he phrase 'as an employe' in Section 1 of Act 534 must be construed to mean the employee's capability to perform duties of a position with the employer paying the pre-injury salary regardless of the availability of such position." Id. (emphasis added).
Although the Majority concludes that nothing prevented Motter from staying with DPW and receiving benefits (Maj. Op. at 7), the relevant inquiry is whether Motter was capable of performing his duties. --------
From May 1, 2013, to July 1, 2013, Motter was not capable of performing his duties with DPW because of his work-related disability and, in accordance with Act 534, he is entitled to his time-of-injury salary. This result is in accordance with the purpose of Act 534, which is to assure individuals engaged in dangerous employment that if they become disabled, they will continue to receive their time-of-injury salaries. See Mihok v. Department of Public Welfare, 670 A.2d 227, 230 (Pa. Cmwlth. 1996). Accordingly, I would reverse the decision of the Bureau and reinstate Motter's Act 534 benefits for the period from May 1, 2013, to July 1, 2013.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge