Opinion
No. 167 C.D. 2014
12-23-2014
Anthony Verga, Petitioner v. Workers' Compensation Appeal Board (R&L Carriers), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Claimant, Anthony Verga, petitions for review of an order of the Workers' Compensation Appeal Board that affirmed the decision of Workers' Compensation Judge (WCJ) Hemak to grant Employer R&L Carriers' November 2009 and March 2010 petitions to modify compensation benefits. We reverse.
In February 2008, Claimant sustained a hernia in the course of his employment as a truck driver for Employer. In a March 4th notice of temporary compensation payable, Employer initially accepted the injury and, accordingly, paid Claimant temporary total disability benefits at the weekly rate of $583.83, based on an average weekly wage of $875.76. On March 17th, Claimant filed a claim petition, which the parties resolved by stipulation. Subsequently, Employer issued a March 25th notice stopping temporary compensation and a notice of compensation denial, asserting that Claimant returned to light-duty work on March 12th.
In a December 2008 decision, WCJ Peleak approved the parties' stipulation accepting a February 7th work-related hernia with post-surgical complications in the nature of a possible neuroma, damaged nerve and/or nerve endings trapped by scar tissue. The parties also stipulated that Claimant returned to work on March 6, 2008, with restrictions, that Employer terminated his employment on May 7th, and that he was able to return to medium-duty employment as of September 22nd. Accordingly, WCJ Peleak awarded Claimant periods of partial and total disability, with a total disability rate of $648.29, based on an average weekly wage of $972.43, and benefits for an ongoing loss in earnings. In addition, WCJ Peleak credited Employer for Claimant's receipt of unemployment compensation benefits.
In November 2009, Employer filed a petition to suspend compensation benefits as of November 9th, based on Claimant's release to return to work and lack of any suitable work with Employer. In addition, Employer filed a petition to modify compensation benefits as of November 9th, based on a labor market survey (LMS). In January 2010, Claimant filed a petition to review compensation benefits, seeking to amend the injury description to include persistent right inguinal neuropathy. In February 2010, Employer filed a second petition to modify compensation benefits as of February 10th, based on an updated LMS and an updated independent medical examination. In an October 2010 decision consolidating all of the petitions, WCJ Hemak denied Employer's petition to suspend compensation, granted Claimant's review petition to the extent of accepting the injury to include a right inguinal neuropathy and granted both of Employer's modification petitions.
In granting Employer's modification petitions, WCJ Hemak found that Claimant was not suitable for the positions that became available with Employer during what the WCJ deemed to be the relevant time period. Notwithstanding that determination, the WCJ rejected the testimony of Employer's witness that Employer terminated Claimant in May 2008 for not showing up for work, instead accepting Claimant's account that he "had been working a modified[-]duty position with [Employer] but was terminated . . . so that the position could be given to another injured worker." WCJ Hemak's September 27, 2010 Decision, Finding of Fact (F.F.) No. 15. Ultimately, WCJ Hemak modified Claimant's benefits to the partial disability rate of $386.95 per week as of August 18, 2009, and further modified them to the partial disability rate of $374.95 per week as of February 8, 2010. Id. at 8.
The WCJ found that, between January and September of 2009, Employer "hired a loader/driver combo on February 23, 2009; a sales account executive on March 2, 2009; a loader III on May 22, 2009; a terminal manager on June 15, 2009; a driver on June 26, 2009; a dispatch clerk on July 6, 2009; and drivers on July 14, 2009 and August 20, 2009 . . . ." WCJ Hemak's September 27, 2010 Decision, Finding of Fact (F.F.) No. 15.
In response to a question as to whether Employer ever advised him that it terminated him for failure to show up for work, Claimant testified as follows:
No. The employer told me - Rick [the terminal manager] told me flat out that - there was another guy who got hurt on the road, he had one of the overhead doors from the trailer hit him in the head, and he ended up with a mild neck strain. And [Rick] flat out told me, he's going to be back to work before you, so he's taking your spot, gonna have to let you go.May 18, 2012 Hearing, Notes of Testimony (N.T.) at 38-39; Reproduced Record (R.R.) at 184a.
Claimant appealed WCJ Hemak's order granting Employer's modification petitions. The Board reversed and remanded in a July 2011 decision, concluding that the issue of job availability with Employer was raised, but not sufficiently rebutted. It emphasized the WCJ's acceptance of Claimant's testimony that he performed a light-duty job for Employer following his surgery and that he accepted the change of hours to second shift consistent with remaining in that position. It also noted the WCJ's rejection of the testimony of Employer's witness that Claimant refused available work. In addition, it noted that Employer's service center manager, David Francis, and its benefits manager, Scott Armour, testified that Employer routinely created positions for injured workers transitioning back to work, as well as Mr. Armour's testimony that Employer has created extra positions for additional injured workers. It concluded that, "[t]heir testimony, if credible, establishes the availability of a position within [Employer's] complement and precludes modification of Claimant's indemnity benefits on the basis of a [LMS]." Board's July 26, 2011 Decision at 8-9 (footnote omitted). Accordingly, it directed the WCJ to make additional credibility findings and reconsider the availability of a position within Employer's complement in light of the testimony of Mr. Francis and Mr. Armour. It did not disturb the WCJ's findings in any other respect.
On remand, WCJ Hemak confirmed his acceptance of Claimant's testimony regarding the 2008 termination but deemed the circumstances surrounding it to be irrelevant. Accordingly, the WCJ once again found that Employer satisfied its burden of proof regarding the two modification petitions. Specifically, the WCJ concluded that 1) Employer established that Claimant was capable of gainful employment despite the residuals of his work-related injury; 2) Employer did not have a position to accommodate Claimant's restrictions; and 3) Claimant had an earning capacity based upon suitable work available in his general labor market. In so determining, the WCJ rejected Claimant's assertion that the Board intended "to constrain this Judge to find that [Employer] should have created a modified[-]duty position for Claimant by virtue of the very existence of [its] light[-]duty work program . . . since it is well established that [Employer] need not create a position for Claimant if a suitable position is not available." WCJ Hemak's January 17, 2012 Decision, Conclusion of Law No. 3.
On appeal, the Board affirmed, reasoning as follows:
The WCJ's clarified findings of fact established that [Employer] did not have any jobs available to Claimant and only created light-duty jobs when work was available. Mr. Francis testified that the only light-duty position available during the relevant time period required experience and was filled by someone with the requisite experience. Mr. Armour testified that light-duty positions for injured workers were created on a case by case basis when work was available. This evidence, taken in the light most favorable to [Employer] as the prevailing party, established that [Employer] did not have any positions available to Claimant.Board's January 9, 2014 Decision at 6 (footnote added). Claimant's timely appeal followed.
To clarify, the position that the Board characterized as "light-duty" was not under Employer's light-duty program. It was simply a job that was mostly light-duty. WCJ Hemak's January 17, 2012 Decision, F.F. No. 11; WCJ Hemak's October 12, 2010 Decision, F.F. No. 11.
In order to prevail in a modification petition, an employer must comply with Section 306(b)(2) of the Workers' Compensation Act (Act) and the Department's regulation found at 34 Pa. Code § 123.301. In pertinent part, Section 306(b)(2) of the Act provides that, "[i]f the employer has a specific job vacancy the employe is capable of performing, the employer shall offer such job to the employe." The regulation, in relevant part, provides as follows:
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 512(2), added by Section 4 of the Act of June 24, 1996, P.L. 350.
(a) For claims for injuries suffered on or after June 24, 1996, if a specific job vacancy exists within the usual employment area within this Commonwealth with the liable employer which the employee is capable of performing, the employer shall offer that job to the employee prior to seeking a modification or suspension of benefits based on earning power.
(b) The employer's obligation to offer a specific job vacancy to the employee commences when the insurer provides the notice to the employee required by [Section 306(b)(3) of the Act, 77 P.S. § 512(b)(3)] and shall continue for 30 days or until the filing of a Petition for Modification or Suspension, whichever is longer. When an insurer files a Petition for Modification or Suspension which is not based upon a change in medical condition, the employer's obligation to offer a specific job vacancy commences at least 30 days prior to the filing of the petition.
(c) The employer's duty under subsections (a) and (b) may be satisfied if the employer demonstrates facts which may include the following:
(1) The employee was notified of a job vacancy and refused to respond.
(2) A specific job vacancy was offered to the employee, which the employee refused.
(3) The employer offered a modified job to the employee, which the employee refused.
(4) No job vacancy exists within the usual employment area.
. . . .
(f) If the employer has presented evidence that no job vacancy exists, the employee may rebut the employer's evidence by demonstrating facts which may include the following:34 Pa. Code § 123.301(a), (b), (c) and (f). Accordingly, an employer seeking to modify a claimant's benefits "must either: (1) offer to a claimant a specific job that it has available, which the claimant is capable of performing, or (2) establish 'earning power' through expert opinion evidence including job listings with employment agencies, agencies of the [Department], and advertisement in a claimant's usual area of employment." Reichert v. Workers' Comp. Appeal Bd. (Dollar Tree Stores/Dollar Express & Specialty Risk Servs., Inc.), 80 A.3d 824, 829 (Pa. Cmwlth. 2013) (citation omitted).
(1) During the period in which the employer has or had a duty to offer a specific job, the employer is or was actively recruiting for a specific job vacancy that the employee is capable of performing.
(2) During the period in which the employer has or had a duty to offer a specific job, the employer posted or announced the existence of a specific job vacancy, that the employee is capable of performing, which the employer intends to fill.
Claimant argues that the present case is governed by Rosenberg v. Workers' Compensation Appeal Board (Pike County), 942 A.2d 245, 251 (Pa. Cmwlth. 2008). A corrections officer at the employer's correctional facility, Rosenberg suffered a work injury and subsequently returned to light-duty clerical work with the employer's board of elections. After ten months, Employer terminated that employment by letter on the grounds that there was no reasonable prospect that she could return to full-time duty at the correctional facility and that it had no provision for a permanent light-duty position. Notwithstanding that termination, the employer filled Rosenberg's clerical position with a new hire. Subsequently, the employer filed a modification petition based on a LMS. The Board affirmed the WCJ's grant of the modification petition, citing Burrell v. Workers' Compensation Appeal Board (Philadelphia Gas Works), 849 A.2d 1282 (Pa. Cmwlth. 2004), for the proposition that an employer need not prove the absence of specific positions with an employer as a precondition to expert testimony of earning power. In addition, the Board concluded that the employer's termination letter constituted substantial evidence to support the finding that the employer did not have permanent light-duty positions available. We vacated the Board's order and remanded the case to the Board for further remand to the WCJ for the limited purpose of addressing the conflict in evidence as to suitable work available with the employer.
In remanding, we noted Rosenberg's uncontradicted testimony that, after the employer terminated her from the clerical position, it hired another person to replace her. We concluded that her testimony "raise[d] the defense that the position [she] was actually performing was available for her continuing employment at the time she was terminated." Rosenberg, 942 A.2d at 250-51. Specifically, we held as follows:
[W]here, as here, the question of an available, suitable job with the employer is raised with evidence, the employer ignores the question at its peril. As with all other elements necessary to succeed in a modification petition, once the issue is raised by evidence of a possible opening with employer, the employer has the burden of proof. Consistent with the plain language of the Act, once the issue is raised with evidence, satisfaction of this element of proof is a prerequisite to employer's reliance on expert testimony of earning power.Id. at 251.
In the present case, Claimant argues that there was a similar possibility of an open position with Employer raised with evidence and that, accordingly, Employer then had the burden of proving the absence of any appropriate in-house position before relying on a LMS. He maintains that Employer failed to meet its burden because it was proceeding under the theory that he was terminated as a "no-show" and, therefore, no longer eligible to be considered for job offers under its modified-duty program. Claimant alleges that Employer needed to establish that, had it proceeded under the theory that it terminated him in order to accommodate another injured employee, it still would have been unable to offer him a modified-duty position during the relevant time period. In that regard, Claimant maintains that Employer's general statement, that it could not always provide modified-duty employment, was insufficient to meet its burden. We agree that the WCJ erred in granting the modification petitions, albeit for slightly different reasons.
It is well established that an employer does not have an affirmative burden to prove the non-existence of available work at its own facility as a necessary element of a modification petition. Reichert, 80 A.3d at 829; Kleinhagan v. Workers' Comp. Appeal Bd. (KNIF Flexpak Corp.), 993 A.2d 1269, 1275 (Pa. Cmwlth. 2010). In the present case, however, not only was there evidence of a possible opening with Employer, but also a position that Employer had artificially terminated in order to accommodate another injured employee. This is analogous to the situation in Rosenberg where the employer filled the claimant's light-duty clerical position with a new hire. In addition, like Claimant in the present case, the Rosenberg claimant presumably was capable of continuing in the then existing modified-duty position but for the employer's termination. Also similar to Rosenberg, Claimant here was physically unable to resume his former position. In that regard, both employers attempted to render their in-house, modified-duty positions unavailable by simply terminating the injured employees performing them when it became evident that he or she would not be able to resume their former positions.
It is noteworthy that no other evidence was offered in the present case to establish that the modified job was no longer available to Claimant or that he was no longer able to perform it. Although Mr. Francis testified regarding that job, the WCJ did not construe his somewhat general testimony to indicate that it specifically was no longer available to Claimant or not available during the relevant time period. See April 6, 2010 Hearing, Notes of Testimony (N.T.) at 30-32; Reproduced Record (R.R.) at 75a-77a. In any event, the findings reflect that Employer generally intended the jobs under its light-duty program to be temporary in that it provided them only as long as injured employees eventually were able to resume in-house, full-duty work. WCJ Hemak's January 17, 2012 Decision, F.F. No. 12.
In conclusion, the somewhat general testimony of Employer's witnesses regarding Employer's light-duty program, particularly that it could not always provide modified-duty employment, might have been sufficient to rebut evidence of job availability but for the WCJ's acceptance of the following evidence: 1) Mr. Armour's testimony that, had Employer not executed the termination, Claimant would have remained eligible for the light-duty program; and 2) Claimant's testimony that he did not refuse available work with Employer, having accepted the change of hours to second shift in order to remain in the modified-duty position. Accordingly, notwithstanding the WCJ's determination that the circumstances surrounding Claimant's 2008 termination were irrelevant, the credited evidence shifted the burden to Employer to establish that the modified-duty job was no longer available to Claimant.
In so concluding, we note a demonstrable lack of good faith on Employer's part in having a policy whereby the modified position of one injured employee is terminated simply to place another in the same position. An implied part of an employer's obligation to operate in good-faith under the Act is to allow an injured worker to continue in a modified-duty position, as long as it remains available, not to terminate one injured worker in order to place another into the same position. As remedial legislation, the Act is intended to benefit the worker and must be liberally construed to effectuate its humanitarian objectives. Hannaberry HVAC v. Workers' Comp. Appeal Bd. (Snyder), 834 A.2d 524, 528 (Pa. 2003). --------
Therefore, we conclude that Employer failed to meet its burden and reverse.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 23rd day of December, 2014, the order of the Workers' Compensation Appeal Board is hereby REVERSED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge