Opinion
No. 1782 C.D. 2008.
Submitted: February 6, 2009.
Filed: July 2, 2009.
BEFORE: SMITH-RIBNER, Judge; JUBELIRER, Judge; KELLEY, Senior Judge.
OPINION NOT REPORTED
Albert Pavlick (Claimant) appeals from two orders of the Workers' Compensation Appeal Board (Board), respectively dated September 18, 2006 and August 20, 2008, pursuant to the Pennsylvania Workers' Compensation Act (Act). The Board's 2006 order affirmed in part the order of a Workers' Compensation Judge (WCJ), in respect to the WCJ's grant of the Petition to Modify Compensation Benefits (Modification Petition) filed by Interface, Inc. (Employer), in respect to the WCJ's denial of Claimant's Petition to Review Compensation Benefits (Review Petition), and in respect to the WCJ's denial of Claimant's Petition for Penalties (Penalty Petition); the Board's 2006 order vacated the WCJ's denial of Claimant's request for litigation costs pursuant to Section 440 of the Act, 77 P.S. § 996, and remanded for further proceedings on the appropriate award of such costs. The Board's 2008 order affirmed the order of the WCJ, following remand, granting in part and denying in part Claimant's Review Petition, and awarding litigation costs. We affirm.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1 — 1041.4; 2501 — 2708.
Section 440 was added by the Act of February 8, 1972, P.L. 25,as amended.
On January 2, 2001, Claimant sustained a work-related knee injury during the course and scope of his work for Employer as a carpet and tile installer. At the time of his injury, Claimant resided in Hamlin, Pennsylvania. By Notice of Temporary Compensation Payable later converted by law to Notice of Compensation Payable (NCP), Employer accepted Claimant's injury, and Claimant thereafter began receiving total disability benefits under the Act. The NCP described Claimant's injury as a "left knee sprain," although Employer paid for medical expenses related to both knees.
On July 31, 2003, Claimant was seen by Alvin Stein, M.D., for an Independent Medical Examination (IME), which resulted in a report stating Claimant's ability to work full time in a light duty capacity. On September 2, 2003, a Notice of Ability to Work was issued by Employer. By letter dated January 22, 2004, Claimant was offered a light duty job as a warehouse assistant at a location in Harrisburg, Pennsylvania.
On February 20, 2004, Employer filed its Modification Petition seeking a reduction in Claimant's benefits based upon Claimant's failure to apply for the offered warehouse position. Claimant thereafter filed an Answer, conceding therein that he was offered the position, but denying in relevant part that the position was within his medical restrictions, and denying that he had acted in bad faith in not responding to the offer.
On March 8, 2004, Claimant filed his Review and Penalty Petitions. Claimant's Review Petition sought review of the description of his injury. Claimant's Penalty Petition sought penalties for Employer's alleged improper suspension and/or modification attempt based upon the warehouse job offer. Employer timely answered the two Petitions, which were subsequently consolidated, along with Employer's Modification Petition, and hearings were thereafter held before a WCJ at which both parties appeared and offered evidence and testimony.
Employer offered, inter alia, the testimony of Walter Kreiger, Jr., Employer's branch manager and the individual who sent Claimant the warehouse position offer. Kreiger's testimony included an assertion that the duties described in the offer could be accommodated in whatever way necessary in accordance with Claimant's physical abilities, and that Claimant would be trained for the position. Kreiger further stated that Claimant did not appear on February 9, 2004 — the date on which the position was made available, and the date on which Claimant had been requested to appear in the offer. Kreiger testified that Claimant never contacted him to discuss the position, and never provided him with any documentation that Claimant was physically unable to perform the duties of the offered job.
Employer also presented the testimony of its IME physician, Dr. Stein. Dr. Stein's testimony included a review of Claimant's medical history and his IME observations, and further noted that Claimant had not been treated for his injuries since 2001. Dr. Stein testified that Claimant would be physically able to perform the work of the offered warehouse position if the weight-related and walking tasks were limited. Dr. Stein considered the condition of both of Claimant's knees.
Claimant presented the testimony of Robert O'Leary, D.O. Dr. O'Leary's testimony included his agreement that Claimant was capable of working light duty with certain limitations, but initially opined that he would not approve the offered warehouse position because of the vagueness of the description of the duties. Dr. O'Leary did subsequently state that if Claimant's restrictions were accommodated, he would approve the offered position on a trial basis.
Claimant's own testimony included his admission that his last injury treatment, including therapy and medications, was in 2001 with Dr. Miller, who released him to work full time on medium duty at that time. Claimant admitted that he had received the warehouse position offer, and that he did not contact Kreiger as requested. Claimant testified that he presented no medical evidence to show that he could not work, and that he is capable of work but not as a floor installer.
Claimant also testified that he moved to Davie, Florida in September of 2001, and that he has not worked in Florida except on an unpaid, volunteer basis. Claimant stated his desire to be trained and work as a farrior, making horseshoes and shoeing horses, which he feels he could physically perform. Claimant stated that he had taken no action to apply for such training, or for funding or assistance for such training. Claimant further stated that, although he has a high school diploma, reads and writes English, and has a driver's license, he could not perform the warehouse position because he has never worked in a warehouse. Claimant conceded that he has held other jobs with on-the-job training, and that he didn't know if he could perform the position since he has never tried such work. Claimant additionally testified that he moved to Florida because he was not receiving his compensation checks on a regular basis, and was thusly in financial trouble.
The WCJ noted that Employer introduced evidence, in the form of a payment log, that established that compensation payments had been made to Claimant on a timely basis from March, 2001, through the time that Claimant moved to Florida in September, 2001.
In his credibility determinations, the WCJ found Kreiger credible. The WCJ also found Dr. Stein credible, and where his testimony differed from Dr. O'Leary's, he credited that of Dr. Stein. The WCJ found Claimant not credible, and not worthy of belief.
The WCJ further concluded, in part relevant hereto, that Claimant had moved to Florida on his accord, and had not provided a good faith basis for his relocation. In support, the WCJ noted that Employer's evidence that Claimant was timely paid his due compensation was more credible than Claimant's testimony that he moved to Florida because of financial burden caused by missed or untimely payments. Accordingly, the WCJ concluded that Claimant had failed to follow up on the offered job position in good faith. The WCJ further concluded that Employer's filing of an amended NCP that included injuries to both of Claimant's knees, as well as Employer's payment for medical treatment to both knees, rendered Claimant's Review Petition moot.
The hearings before the WCJ occurred on April 6, June 15, and December 8 of 2004. At the June 15, 2004 hearing, Employer expressly recognized the bilateral injuries to both knees that Claimant had asserted, and stated that it would issue an amended NCP. Thereafter, but prior to the WCJ's issuance of its opinion, Employer filed an amended NCP expressly accepting Claimant's bilateral knee injuries on February 4, 2005.
The WCJ concluded that Employer had met its burden under the Modification Petition. The WCJ further concluded that Claimant was not entitled to litigation costs, and that Claimant had not sustained his burden on the Penalty Petition. By order dated July 19, 2005, the WCJ granted Employer's Modification Petition, denied Claimant's Penalty Petition, and dismissed Claimant's Review Petition as moot.
Claimant timely appealed to the Board, which heard the matter without receiving additional evidence or testimony. Following its thorough review of the record, and of the issues presented by Claimant on appeal, the Board affirmed the WCJ's order in all respects with one exception; the Board found error in the WCJ's denial of litigation costs to Claimant in relation to Claimant's Review Petition seeking amendment of the description of his injuries.
The Board noted that the record established that Employer did not amend the NCP to reflect the bilateral nature of Claimant's injuries until February 4, 2005, which amendment occurred only after Claimant's repeated requests for amendment, and only after Claimant was forced to litigate the issue by bringing the Review Petition. The Board noted that the record shows that Claimant deposed Dr. O'Leary on November 11, 2004 — nearly three months before Employer actually executed the sought amendment — and noted that Claimant did in fact succeed in obtaining the new amended NCP in part as a result of the litigation pursued. The Board vacated the WCJ's denial of costs under Section 440 of the Act, and remanded the matter for further proceedings before the WCJ to determine an appropriate award of litigation costs spent by Claimant in his pursuit of that amendment. The Board's order was dated September 18, 2006.
One remand hearing was held thereafter before the WCJ, at which no further evidence or testimony was presented. Following review of the record, the WCJ concluded Claimant was entitled to reimbursement of litigation costs incurred up to August 2, 2004, the date on which Dr. Stein testified that Claimant had sustained bilateral injuries. The WCJ further concluded that Claimant was not entitled to certain costs submitted by Claimant that the WCJ found to be excessive, including costs for postage and research on the Review Petition. Additionally, the WCJ concluded that Employer had presented a reasonable basis for the contest at issue. By order dated September 19, 2007, the WCJ granted Claimant's Review Petition in part, and denied the petition in part, and awarded Claimant reimbursement for litigation costs incurred up to August 2, 2004, or $3,474.45. Again, Claimant appealed to the Board.
The Board heard Claimant's appeal without receiving any additional evidence. In its opinion, the Board first noted that Claimant was not challenging the merits of the WCJ's September 19, 2007 order. The Board next noted that Claimant had, in the current appeal before it, repeated his same arguments advanced in his first appeal of the WCJ's prior, July 19, 2005 order. The Board denied to again address those issues or to reconsider its prior determination thereon, and noted that to the extent that Claimant sought to preserve any prior issues for further appeal, the Board affirmed the WCJ's July 19, 2005 order, and made the Board's own prior September 18, 2006 order and opinion final. By order dated August 20, 2008, the Board denied Claimant's appeal, and affirmed the WCJ's September 19, 2007 order. Claimant now appeals to this Court, from the Board's September 18, 2006, and August 20, 2008 orders.
This Court's scope of review is limited to determining whether there has been a violation of constitutional rights, errors of law committed, or a violation of Board procedures, and whether necessary findings of fact are supported by substantial evidence. Lehigh County Vo-Tech School v. Workmen's Compensation Appeal Board (Wolfe), 539 Pa. 322, 652 A.2d 797 (1995). Claimant first argues that Employer, in presenting its Modification Petition, did not properly satisfy its burden of complying with Section 306(b)(3) of the Act, 77 P.S. § 512(3), which requires Employer to provide written notice to a Claimant notifying him of certain information related to the Claimant's alleged ability to return work. The notice must be on a prescribed form, namely, Form LIBC-757, entitled Notice of Ability to Return to Work (hereinafter, the Notice). See Allegis Group (Onsite) v. Workers' Compensation Appeal Board (Henry), 882 A.2d 1 (Pa.Cmwlth. 2005).
The burden of proving that a modification petition should be granted is upon the party seeking the modification of benefits, in this case the employer. Fruehauf Corporation v. Workmen's Compensation Appeal Board (Michaels), 559 A.2d 609 (Pa.Cmwlth. 1989). In Kachinski v. Workmen's Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 252, 532 A.2d 374, 380 (1987), our Supreme Court set forth the following procedure for the return to work of injured employees: 1.) The employer who seeks to modify a claimant's benefits on the basis that he has recovered some or all of his ability must first produce medical evidence of a change in condition; 2.) The employer must then produce evidence of a referral (or referrals) to a then open job (or jobs), which fits in the occupational category for which the claimant has been given medical clearance, e.g., light work, sedentary work, etc.; 3.) The claimant must then demonstrate that he has in good faith followed through on the job referral(s), and; 4.) If the referral fails to result in a job then claimant's benefits should continue.
At the first hearing before the WCJ, on April 6, 2004, Employer presented into evidence a number of exhibits, with some offered for the purpose of supersedeas, and some offered for the purposes of the case in chief. Employer offered a copy of the Notice "[f]or the case in chief." Reproduced Record (R.R.) at RR4. Following Employer's offer of its various exhibits, the following exchange between the WCJ and Claimant's counsel occurred:
[WCJ] Clark: Any objection to the exhibits?
Mr. Novak [as counsel for Claimant]: For supersedeas purposes, no, Your Honor.
R.R. at RR5. Shortly thereafter, Claimant's counsel stated:
I'm going to have to check with [Claimant] to determine if he, in fact, received the [Notice]. The date I have on that is September 2, 2003, and I'm not aware that [Claimant] actually received that [N]otice. So, I'm going to check on that, and [Claimant] will obviously testify as to whether he not [sic] received that notice.
R.R. at RR8. Employer's counsel thereafter noted that if Claimant produced testimony that he had not received the Notice, Employer would offer opposing testimony to rebut that assertion. R.R. at RR12.
For the entirety of the remaining hearings before the WCJ, neither Claimant nor his counsel revisited the issue of Claimant's receipt of the Notice, and specifically, no testimony or evidence was ever presented indicating that Claimant had not received the Notice. Additionally, no objection was made at any time by Claimant, on any grounds, in opposition to Employer's entry into evidence of the Notice. As such, Employer's entry of the Notice into evidence, which entry was expressly offered towards Employer's burden in its case in chief, without objection on the record by Claimant, satisfied Employer's burden. See generally Allegis Group.
Claimant now argues that the above quoted passage indicates that Claimant did not object to the entry of the Notice only on the grounds of its support for supersedeas purposes. We disagree. Although Claimant argues to this Court that he did not concede the fact that he received the Notice, the record is clear that notwithstanding the strategic intentions of Claimant's counsel now argued on appeal, no such assertion was ever actually made during the proceedings before the WCJ.
The transcript of proceedings clearly establishes that Employer offered the Notice not for supersedeas purposes, but towards its case in chief. R.R. at RR4. Claimant, in both his arguments to the Board and to this Court, is unable to cite to any place within the record to this matter that any objection was lodged against the entry of the Notice into evidence on any grounds for any purpose. As such, Claimant has waived this issue on two distinct and independently dispositive grounds.See Pa.R.A.P. 2117(c) (in a brief to this Court, the Statement of the Case must include, inter alia, the time and place in which a question sought to be reviewed was raised, the method of so raising, the ruling thereon, and citations to the record establishing that the question was timely and properly raised so as to preserve the issue on appeal); Department of Corrections v. Workers' Compensation Appeal Board (McClellan), 794 A.2d 977 (Pa.Cmwlth. 2002) (issues not raised before the WCJ are waived and will not be considered by this Court).
Next, Claimant argues that Employer's employment offer was not made in good faith, since Claimant had previously moved to Florida and the offered job was not geographically available.
Under Kachinski and its progeny, an employer bears the burden of providing available work within the claimant's geographic area, if that claimant has since relocated, only if the relocation was found to be in good faith. Yellow Freight System, Inc. v. Workmen's Compensation Appeal Board, 377 A.2d 1304 (Pa.Cmwlth. 1977). In a relocation scenario, the claimant's good faith must be found to exist both in relation to the move itself, and in subsequent attempts to find work within his physical capabilities. Id.
In the matter sub judice, Claimant testified that he relocated to Florida due to financial difficulties caused by untimely payment of his benefits by Employer. The WCJ found:
18. The [C]laimant testified that he moved to Florida because he was not getting his compensation checks on a regular basis and he was in a financial bind. This testimony is contradicted by the payment logs, which show that payments were made on a regular and timely basis from March 2001 through the time he moved in September of 2001. . . .
WCJ July 19, 2005, Opinion, Finding 18. Further, the WCJ found Employer's evidence more credible than the testimony of Claimant, both generally, and on the specific point of whether or not Claimant had received his benefits payments in a timely fashion. Id. at Finding 18, Credibility Determinations 1, 4. Accordingly, the WCJ correctly concluded that Claimant's relocation was a result of his own actions, which relocation was not in good faith due to the WCJ's discrediting of Claimant's testimony on the reason for his move. Id. at p. 7; Yellow Freight. As the WCJ's Findings are supported by substantial evidence, we will not disturb them on appeal. Next, we address Claimant's argument that the WCJ capriciously disregarded Claimant's testimony that he moved to Florida because of his financial hardship, and because he was pursuing training and job opportunities to become a farrior. On this point, Claimant argues that his testimony on these points was undisputed, which argument is belied by Employer's evidence, and by Claimant's own testimony.
Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Mrs. Smith's Frozen Foods v. Workmen's Compensation Appeal Board (Clouser), 539 A.2d 11 (Pa.Cmwlth. 1988).
The WCJ, as the ultimate fact finder in workers' compensation cases, has exclusive province over questions of credibility and evidentiary weight, and is free to accept or reject the testimony of any witness in whole or in part. General Electric Co. v. Workmen's Compensation Appeal Board (Valsamaki), 593 A.2d 921 (Pa. Cmwlth),petition for allowance of appeal denied, 529 Pa. 626, 600 A.2d 541 (1991).
In Leon E. Wintermyer, Inc. v. Workers' Compensation Appeal Board (Marlowe), 571 Pa. 189, 812 A.2d 478 (2002), our Supreme Court held that review for a capricious disregard of material, competent evidence is an appropriate component of appellate consideration in every case in which such an issue is properly presented to the court.
Claimant mistakes the WCJ's rejection of his preferred evidence as a disregard therefor. The WCJ's decision as a whole reflects that the evidence Claimant argues has been disregarded was indeed considered and rejected as unpersuasive. As noted above, Employer entered payment logs into evidence showing that Claimant was indeed paid his due benefits on time, which evidence flatly contradicts Claimant's asserted primary basis for his relocation. Original Record (O.R.), Ex. D-4. The WCJ found Employer's evidence to be more credible than Claimant's. WCJ July 19, 2005, Opinion, Finding 18, Credibility Determinations 1, 4. Further, Claimant's own testimony indicates that he did not
formally pursue a paying position, or retraining for any position, upon his relocation to Florida. R.R. at RR66-RR69, RR203-RR204.
The WCJ's rejection of Claimant's testimony is not, however, a capricious disregard, notwithstanding Claimant's assertions. Where there exists substantial evidence to support a WCJ's factual findings, and those findings in turn support the conclusions, it should remain a rare instance in which a reviewing court would disturb an adjudication based upon capricious disregard. Frankford Hospital v. Workers' Compensation Appeal Board (Walsh), 906 A.2d 651 (Pa.Cmwlth. 2006). The record to the instant matter reveals substantial evidence supporting all of the WCJ's findings herein; additionally, the WCJ expressly considered, and rejected, the evidence at issue in Claimant's argument on this point. As such, Claimant's argument on this issue is without merit, and must fail.
To the extent that Claimant's arguments on this issue can be read as a request for this Court to reweigh the evidence presented below, we emphasize that it is not this Court's function to reweigh the evidence, or to determine whether the WCJ made the most reasonable and probable findings that could have been rendered. Bethenergy Mines v. Workmen's Compensation Appeal Board (Skirpan), 531 Pa. 287, 612 A.2d 434 (1992).
Claimant also argues that the WCJ erred in failing to grant Claimant's counsel fees and penalties on the basis that Employer's job offer was unreasonable, and on the basis that Employer violated the notice provisions of the Act contained in Section 306(b)(3), 77 P.S. § 512(3). Given our disposition of the foregoing issues — namely, that the WCJ did not err in finding no violation of Section 306(b)(3), or in concluding that Employer's job offer was in good faith — Claimant's arguments on this issue are without merit, and must fail.
Claimant next argues that the testimony of Employer's medical expert, Dr. Stein, was equivocal and incompetent. Claimant asserts that Dr. Stein testified that Claimant could only perform certain portions of the position offered to Claimant in the wake of his injury. We disagree, as Claimant's argument on this point is based upon selected, preferred portions of Dr. Stein's testimony; Dr Stein's testimony as a whole is not equivocal in relation to Claimant's ability to perform the offered position with consideration for the accommodations that accompanied the job offer.
The equivocality of a medical opinion is a question of law and fully reviewable by this court. Carpenter Technology v. Workmen's Compensation Appeal Board (Wisniewski), 600 A.2d 694 (Pa.Cmwlth. 1991). Equivocality is judged upon a review of the entire testimony. Id. In conducting this review, we are mindful of our admonition in Philadelphia College of Osteopathic Medicine v. Workmen's Compensation Appeal Board (Lucas), 465 A.2d 132 (Pa.Cmwlth. 1983), that to be unequivocal, every word of medical testimony does not have to be certain, positive, and without reservation or semblance of doubt.
Employer's witness, Mr. Kreiger, testified as the Branch Manager for Employer's Harrisburg office, and as the individual responsible for the duties involved in the position offered to Claimant. R.R. at RR18-RR20. Kreiger expressly testified that he was willing to make any accommodations necessary to the position offered to Claimant that would be necessary to accommodate Claimant's medical limitations. R.R. at RR22-RR23. Dr. Stein, when presented with Employer's willingness to accommodate Claimant's limitations, testified that he would have no problem with the offered position fitting within Claimant's ability to return to work. R.R. at 109-RR117. As such, in consideration of his testimony as a whole, Dr. Stein's testimony is not equivocal.Philadelphia College.
Finally, Claimant argues that the WCJ failed to issue a reasoned decision due to the WCJ's failure to articulate the reasons for his determination of Dr. Stein's testimony as credible. Claimant bases this argument upon his assertion that the WCJ credited Dr. Stein's opinion on Claimant's ability to perform the offered position over conflicting testimony offered on that same point by Claimant's medical expert, Dr. O'Leary.
Section 422(a) of the Act, 77 P.S. § 834, provides, in pertinent part, that:
[a]ll parties to an adjudicatory proceeding are entitled to a reasoned decision 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. . ., [and t]he adjudication shall provide the basis for meaningful appellate review. . .
77 P.S. § 834. A decision is reasoned if it allows for adequate appellate review under the applicable standards of review. Daniels v. Workers' Compensation Appeal Board (Tristate Transport), 574 Pa. 61, 76, 828 A.2d 1043, 1052 (2003). Further, Daniels held that when witnesses appear via deposition as did the medical experts in this case, some articulation of an actual objective basis for the credibility determinations must be offered by the WCJ when crediting one witness's testimony over conflicting testimony, in order to issue a reasoned decision. Id.
However, this does not mean that a WCJ must provide a line-by-line recitation of every line of evidence. Indeed, this Court has previously explained:
A reasoned decision does not require the WCJ to give a line-by-line analysis of each statement by each witness, explaining how a particular statement affected the ultimate decision.
Acme Markets, Inc. v. Workers' Compensation Appeal Board (Brown), 890 A.2d 21, 26 (Pa.Cmwlth. 2006).
In the instant matter, a review of the testimony of Dr. O'Leary as a whole indicates that he did not offer a conflicting opinion of Claimant's ability to perform the offered position, when considering the accommodations offered by Employer. Dr. O'Leary testified that, given Employer's statement that it would be willing to accommodate any required medical restrictions placed upon Claimant in its offer of the warehouse position to Claimant, he would approve that position for Claimant. R.R. at RR166-RR167. As such, there was no conflicting testimony between the two medical experts on this point, and accordingly, the WCJ's credibility determinations were well reasoned, and sufficient to enable effective appellate review. Daniels; Acme.
Accordingly, we affirm.
ORDER
AND NOW, this 2nd day of July, 2009, the orders of the Workers' Compensation Appeal Board dated September 18, 2006, at A05-1913, and dated August 20, 2008, at A07-2086, are affirmed.