Opinion
No. 1665 C.D. 2012
02-26-2013
Amber Zyskowski, Petitioner v. Workers' Compensation Appeal Board (Allied Services), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In this appeal, Amber Zyskowski (Claimant) challenges a Workers' Compensation Judge's (WCJ) decision that granted her claim petition to the extent she sought reasonable and necessary medical expenses, but denied her claim for indemnity benefits. Specifically, the WCJ determined, although a work injury occurred, Allied Services (Employer) provided Claimant modified work within her restrictions, and Employer terminated Claimant's employment based on her violation of Employer's "no call, no show" policy. Thus, the WCJ determined Claimant's violation of Employer's policy, rather than her work injury, caused her loss of earnings. Essentially, Claimant argues the WCJ erred in determining Employer was not required to issue Claimant a "notice of ability to return to work" form as contemplated by Section 306(b)(3) of the Workers' Compensation Act (Act), 77 P.S. §512(3). Upon review, we affirm.
Act of June 2, 1915, P.L. 736, added by the Act of June 24, 1996, P.L. 350, as amended.
In April 2009, Claimant began working part-time for Employer as a certified nursing assistant. On November 25, 2009, she filed a claim petition alleging she sustained a back injury. Employer denied the allegations of disability. Hearings ensued before a WCJ.
In its notice of workers' compensation denial, Employer acknowledged an injury occurred, described as a low back strain, but denied Claimant was disabled as a result of the injury.
Claimant also filed a penalty petition, which the WCJ denied. Claimant does not challenge the denial of her penalty petition in this appeal.
Before the WCJ, Claimant testified she sustained a back injury while assisting a co-worker transfer a patient on October 6, 2009. Claimant notified Employer of the incident. On the same date, Claimant began treating with Employer's panel physicians, Drs. Mark and Catherine Rainey of Mid-State Occupational Health Services, Inc. Claimant testified that Mid-State Occupational Health Services released her to return to modified duty work on October 6, 2009. A few days later, Claimant began working in a modified duty position, which required her to watch Employer's television monitors at the nurse's station. She experienced difficulty with this position because her back pain prevented her from sitting for long periods of time.
Claimant also testified Dr. Mark Rainey released her to return to regular duty work on November 13, 2009. Nevertheless, on that date, Claimant continued to perform the monitor position; she also assisted in handing out cups of water to patients. On November 24, Claimant treated with Dr. Catherine Rainey, who released her to restricted duty work, with a 10 pound lifting restriction. However, Claimant did not return to work after November 24, 2009. Rather, she sent Employer a letter explaining she was exercising her legal right to seek other medical treatment.
Claimant testified she called off work on November 14, 15 and 17, 2009, but she did not provide a doctor's excuse for those days. Claimant also called off on November 21 and November 22, 2009. Claimant testified she was a "no call, no show" on November 27, 2009, and Employer left a message for her that day. Reproduced Record (R.R.) at 59a. Claimant also testified she was a "no call, no show" on November 30, and December 1, 2009. R.R. at 59a-60a.
In addition, Claimant presented the testimony of Dr. Emmanuel E. Jacob (Claimant's Physician), who is board-certified in physical medicine and rehabilitation. He first examined Claimant on December 7, 2009. Claimant's Physician obtained a history of the work incident and performed a physical examination. He also reviewed an MRI and an x-ray. Claimant's Physician opined that, as a result of the work incident, Claimant sustained a thoracic and lumbosacral strain/sprain with lumbar radiculitis and spasm in her muscles. He also opined Claimant could not return to her pre-injury job, and she did not fully recover from the work injury. On cross-examination, Claimant's Physician opined that, if he had to place Claimant on restrictions, he would restrict her to light duty capacity.
In opposition to the claim petition, Employer presented the testimony of Susan Schwartz, the director of nursing at the John Heinz Institute, where Claimant worked. Schwartz, who oversaw the department in which Claimant worked, testified the monitor position Employer provided to Claimant in October and November 2009 was a "no hands on" position that could be performed while sitting or standing. WCJ Op., 8/8/11, Finding of Fact (F.F.) No. 8; R.R. at 84a. Schwartz also explained that pursuant to Employer's disciplinary policy two consecutive "no calls, no shows" constituted grounds for termination. R.R. at 87a-88a. Schwartz testified that Claimant was a "no call, no show" on October 25, November 27, November 30 and December 1, 2009. R.R. at 85a, 87a. As a result, Schwartz terminated Claimant's employment based on a violation of Employer's "no call, no show" policy. R.R. at 92a. Schwartz testified the decision to terminate Claimant's employment was not related to her light duty status. Id.
In addition, Employer presented the testimony of Susan Letukas, who reviews workplace incidents and accidents for Employer. Letukas confirmed that the monitor position Employer provided to Claimant in October and November 2009 could be performed while sitting or standing. Letukas testified Claimant earned her pre-injury wage while performing the monitor position. R.R. at 101a. Letukas further testified she received a letter from Claimant regarding her ability to return to work. Letukas testified she believed she received this letter, which carried a November 30, 2009 postmark, after December 1, 2009. She also testified Employer scheduled Claimant to perform the monitor position on November 27, November 30, and December 1, 2009. However, Claimant did not provide a doctor's note for the days she missed.
Employer also presented the testimony of Dr. Christian Ivan Fras, who is board-certified in orthopedic surgery, with a sub-specialty in spine surgery (Employer's Physician). He examined Claimant on April 23, 2010, at which time he obtained a history of the work incident and Claimant's subsequent medical treatment. Employer's Physician performed a physical examination and reviewed various medical records, including an MRI report and an EMG. Employer's Physician opined that Claimant sustained a lumbar sprain and strain as a result of the work incident, and she fully recovered from this injury by the date of his examination.
Ultimately, the WCJ credited Claimant's testimony as it related to the occurrence of the work injury on October 6, 2009. Additionally, the WCJ credited the testimony of Claimant's Physician over that of Employer's Physician as to the nature and extent of the injury.
However, the WCJ found Employer provided Claimant work within her restrictions as of the date Mid-State Occupational Health Services released Claimant to return to restricted duty work, and Claimant voluntarily quit her employment resulting in the termination of her employment. F.F. No. 16(b). The WCJ credited Schwartz's testimony that Employer terminated Claimant's employment for violating Employer's "no call, no show" policy. Id. The WCJ also credited Letukas' testimony that Claimant could perform the monitor position while sitting or standing. The WCJ found it significant that the records from Mid-State Occupational Health Services indicated Claimant was released to restricted duty as of November 24, 2009. The WCJ credited Claimant's testimony that she sent Employer a letter on November 24, 2009 indicating she was unhappy with her medical care.
Significantly, the WCJ found Claimant's Physician did not testify that Claimant was totally disabled or unable to perform the monitor position. The WCJ found Claimant was capable of performing light duty employment. Thus, the WCJ determined, although Claimant sustained a work injury, Claimant did not prove she suffered any wage loss as a result of the work injury. As a result, the WCJ determined Employer was liable for Claimant's reasonable and necessary medical expenses, but not for indemnity benefits.
The WCJ also specifically rejected Claimant's argument that Employer was required to issue Claimant a notice of ability to return to work. Specifically, the WCJ found Claimant actually performed the monitor position, and she was aware of the medical restrictions from Mid-State Occupational Health Services. F.F. No. 16(b). Claimant appealed to the Workers' Compensation Appeal Board (Board).
The Board determined the WCJ did not err in granting Claimant's claim petition, but denying indemnity benefits where: Employer provided Claimant work within her restrictions; Claimant did not present any evidence that she missed work for reasons related to her work injury; and, Schwartz's credited testimony established Claimant's violation of Employer's "no call, now show" policy caused her loss in earnings.
In addition, citing this Court's decision in Burrell v. Workers' Compensation Appeal Board (Philadelphia Gas Works), 849 A.2d 1282 (Pa. Cmwlth. 2004), the Board stated Employer was not required to issue Claimant a notice of ability to return to work where, as here, Claimant was actually performing work. The Board stated:
In the case at bar, the WCJ found that Claimant performed the monitor position and was aware of the medical restrictions from Mid State Occupational Health Services. Therefore, a Notice of Ability to Return to Work need not be issued by [Employer]. The Claimant did not provide sufficient, competent or credible evidence that she suffered any wage loss due to the work related incident. Therefore, the WCJ did not err in denying any wage loss as a result of Claimant's injury.Bd. Op., 8/2/12, at 6. Claimant now appeals to this Court.
Our review is limited to determining whether the necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated. Penn State Univ./PMA Ins. Grp. v. Workers' Comp. Appeal Bd. (Hensal), 911 A.2d 225 (Pa. Cmwlth. 2006).
In her free-flowing argument, Claimant begins by asserting that "[a]ll individual workers, injured on the job in Pennsylvania have the fundamental right to make informed choices about any decision related to post-injury continued employment decisions that directly involve fundamental liberty rights and personal property rights." Pet'r's Br. at 9.
She asserts this appeal involves a question of law interpreting Section 306(b)(3) of the Act in a case of first impression given the specific factual and procedural context of this case. To date, Claimant contends, Pennsylvania appellate courts have yet to squarely address the legal ramifications of an employer's failure to discharge its absolute Section 306(b)(3) written notice duty before taking action and using new medical evidence for "return to work" demand purposes during the period immediately after the date of injury. Claimant argues this appeal directly raises and squarely involves the fundamental question of law that governs the post-injury intersectional interplay between Sections 306(a) and (b) of the Act. She frames this issue as follows: "When does an employee on total (physical) disability status have the postinjury legal duty either [sic] to make a return-to-work attempt with the employer?" Pet'r's Br. at 9.
Claimant further contends the Board's opinion, interpreting Burrell as controlling here is a "dangerous, unprincipled and problematic erosion of fundamental individual liberties and personal property rights[.]" Id. She asserts the result is a rule of law that fosters both incentives and means for abuse and noncompliance by: (1) permitting employers to avoid their statutory liability, duties and obligations under the Act; (2) undermining uniformity in the legal standard governing an injured employee's statutory "enforceable expectation" rights under Section 306(b)(3) of the Act; and, (3) requiring an employee to permanently lose, surrender or waive post-injury personal liberty and property rights by making actual right to work attempts without the benefit of the LIBC-757 Notice of Ability to Return to Work form. Id. She argues such a result is contrary to public policy.
At the outset, we note that Claimant does not directly challenge the WCJ's determination that she is not entitled to indemnity benefits on the ground she did not prove her work injury caused any loss in earnings. Similarly, Claimant does not contest the WCJ's finding that her employment relationship with Employer ended as a result of her violation of Employer's "no call, no show" policy. Instead, Claimant essentially asserts that she is entitled to ongoing total disability benefits as of November 24, 2009, because Employer did not issue her a notice of ability to return to work form on that date, and, as a result, she did not have a "good faith" duty to return to work after that date. We disagree.
In the context of a claim petition, a claimant bears the burden of establishing the right to compensation and all of the elements necessary to support an award, including the duration and extent of the disability alleged. Second Breath v. Workers' Comp. Appeal Bd. (Gurski), 799 A.2d 892 (Pa. Cmwlth. 2002). Thus, the burden is initially on the claimant to establish a loss of earnings from a work-related injury. Id. "The term 'disability' is synonymous with an employee's loss of earning power." N. Pittsburgh Drywall Co., Inc. v. Workers' Comp. Appeal Bd. (Owen), ___ A.3d ___, ___ (Pa. Cmwlth., No. 1257 C.D. 2012, filed January 9, 2013) (citation omitted). To prove a disability, a claimant must show not merely physical impairment, but loss of earning power. BJ's Wholesale Club v. Workers' Comp. Appeal Bd. (Pearson), 43 A.3d 559 (Pa. Cmwlth. 2012).
Where the employer alleges the claimant's loss of earnings is the result of a postinjury involuntary discharge, the employer bears the burden of proof. Second Breath. The employer must prove suitable work was available or would have been available but for the circumstances that merit allocation of the consequences of the discharge to the claimant, such as the claimant's lack of good faith. Id. Moreover, the WCJ, as factfinder, determines whether a claimant was discharged for conduct evidencing lack of good faith. Id.
If an employer provides work within a claimant's physical limitations at no loss of pay and shows it terminated the claimant for conduct evidencing bad faith or a lack of good faith, disability benefits must be denied, regardless of whether the claimant has a physical disability caused by the work injury. BJ's Wholesale Club.
Here, the WCJ determined Claimant did not establish any disability, i.e., loss of earnings, as a result of the work injury. WCJ Op., Concl. of Law No. 3. Further, the WCJ credited Schwartz's testimony that Employer terminated Claimant's employment based on her violation of Employer's "no call, no show" policy, and that work within Claimant's restrictions remained available after November 24, 2009, but for Claimant's violation of that policy. WCJ Op, Finding of Fact No. 16, Concl. of Law No. 3; Reproduced Record at 92a, 96a.
With regard to the notice of ability to return to work requirement, Section 306(b)(3) of the Act states:
If the insurer receives medical evidence that the claimant is able to return to work in any capacity, then the insurer must provide prompt written notice, on a form prescribed by the department, to the claimant, which states all of the following:77 P.S. §512(3) (emphasis added). "The clear purpose of Section 306(b)(3) is to require the employer to share new medical information about a claimant's physical capacity to work and its possible impact on existing benefits." Burrell, 849 A.2d at 1287 (emphasis added).
(i) The nature of the employe's physical condition or change of condition.
(ii) That the employe has an obligation to look for available employment.
(iii) That proof of available employment opportunities may jeopardize the employe's right to receipt of ongoing benefits.
(iv) That the employe has the right to consult with an attorney in order to obtain evidence to challenge the insurer's contentions.
Contrary to Claimant's assertions, this is not a matter of first impression. Among several cases considering this statutory language, our decision in Ashman v. Workers' Compensation Appeal Board (Help Mates, Inc.), 989 A.2d 57 (Pa. Cmwlth. 2010) is instructive. There, a claimant sustained a work injury, and she remained off work for about a week. Thereafter, she was released to return to sedentary work with the employer, which she performed. The claimant was then released to light duty work, which she also performed. After several weeks, the claimant ceased performing the light duty work based on a note from her family physician that recommended she be taken off work. The claimant filed a claim petition seeking total and partial disability benefits. A WCJ granted total disability benefits for the initial period the claimant remained off work, followed by a modification of benefits when the claimant returned to sedentary and then light duty work.
Before this Court, the claimant asserted the WCJ erred in modifying her benefits based on her temporary return to work where the employer did not issue the claimant a notice of ability to return to work. She further argued the WCJ erred in determining the employer was entitled to a modification of benefits because the employer did not issue a notice of ability to return to work in each instance where her restrictions were modified. This Court, speaking through Judge McGinley, rejected the claimant's arguments, stating:
[The] [c]laimant contends that the issuance of a 'Notice of Ability to Return to Work' is a threshold burden for a modification of a claimant's benefits and because [the] [e]mployer failed to offer any evidence that it met this burden, the WCJ's modification of her benefits was improper. However, upon being released to sedentary duty by the panel physician, [the] [c]laimant returned to work beginning on July 5, 2006, in the absence of such notice and continued performing light duty work through August 22, 2006. The purpose of the notice requirement is to require the employer to share new medical information about a claimant's physical capacity to work and its possible impact on existing benefits. And, formal notice is not required where a claimant is actually performing work. [Burrell]. [The] [c]laimant acknowledged that she returned to work performing sedentary duty and was physically capable of working in that capacity. Furthermore, [the medical] testimony ... suggested that the [c]laimant's restrictions remained fairly consistent for this period of approximately seven weeks. Therefore, requiring [the] [e]mployer to issue a 'Notice of Ability to Return to Work' for minor changes in
[the] [c]laimant's restrictions would be superfluous considering she was working. See Burrell.
Given the circumstances surrounding [the] [c]laimant's return to work, the Board determined that it was unnecessary for [the] [e]mployer to issue a 'Notice of Ability to Return to Work' each time [the] [c]laimant's restrictions were slightly modified. [The] [c]laimant returned to the sedentary duty position provided to her by [the] [e]mployer in conformance with her restrictions and continued to work in that capacity until August 22, 2006. Additionally, because the WCJ found that [the] [c]laimant was able to work in a sedentary capacity beyond August 22, 2006, it was not error to order that her benefits remain modified from July 5, 2006, and ongoing. The Board properly rejected Claimant's argument in this regard. FN7
Ashman, 989 A.2d at 62-63 (emphasis added).FN7 In her brief, [the] [c]laimant relies heavily on Hoover v. Workers' Compensation Appeal Board (Henry Masonry, Inc.), 783 A.2d 886 (Pa. Cmwlth. 2001), in support of her position that the WCJ erred in modifying her benefits based on the absence of a "Notice of Ability to Return to Work." The facts of Hoover are distinguishable from the facts in the present case in that the claimant in Hoover did not return to work as [the] [c]laimant in the present case did.
The facts presented here are similar to the facts in Ashman, in which we determined the employer was not required to issue a notice of ability to return to work. Specifically, Claimant here suffered an injury on October 6, 2009. She treated with Employer's panel physicians, who released her to restricted duty work on that date. R.R. at 50a, 114a. Despite not receiving a notice of ability to return to work form, Claimant did, in fact, return to work performing the monitor position within a few days of the work injury. R.R. at 51a. She worked in this position until November 24, 2009, when she decided not to return to work. R.R. at 44a, 54a, 96a, 98a. Further, as found by the WCJ, Claimant testified she was aware of the restrictions, F.F. No. 16(b), R.R. at 38a, 58a, and, despite the changes in those restrictions, Employer made the modified-duty monitor position available to Claimant (with very limited additional duties) until the date she decided not to return to work. R.R. at 54a, 58a, 96a.
Also, although Claimant points to the fact that on November 24, 2009, Employer's panel physicians placed her on restricted duty with a ten pound lifting restriction despite the fact that Employer's panel physicians previously released her to her regular duty position, Employer continued to provide Claimant the sedentary monitor position (with very limited additional duties) throughout this period. R.R. at 55a, 58a, 96a, 98a. Under these circumstances, the WCJ and the Board correctly determined that Employer was not required to provide Claimant a notice of ability to return to work form. Ashman; see also Smith v. Workers' Comp. Appeal Bd. (Caring Companions, Inc.), 55 A.3d 181, 186 (Pa. Cmwlth. 2012) (Covey, J.) (same holding).
The Board and Employer both cite Burrell v. Workers' Compensation Appeal Board (Philadelphia Gas Works), 849 A.2d 1282 (Pa. Cmwlth. 2004). In Burrell, this Court determined an employer was not required to issue a notice of ability to return to work form where it sought a modification of benefits based on surveillance evidence of the claimant working for a different employer and expert vocational testimony regarding the claimant's earning capacity in this position.
Here, unlike in Burrell, the employer did not seek to modify existing benefits based on surveillance evidence and expert vocational testimony. In this case, a notice of ability to return to work was not required because Claimant actually returned to modified duty work with Employer, and she was aware of the medical restrictions placed on her by Employer's panel physicians.
Of further note, in an unreported opinion, this Court previously recognized: "Clearly[,] Section 306(b)(3) of the Act presumes that the injury has caused a disability, a claim has been acknowledged as compensable and that the employer seeks to reduce its existing liability by decreasing the amount of benefits it has to pay." King v. Workers' Comp. Appeal Bd. (Monroe Muffler & Brakes), (Pa. Cmwlth., Nos. 1582, 1674 C.D. 2009, filed June 29, 2010) (McGinley, J.), Slip Op. at 10 (unreported) (emphasis added). Such is not the case here.
To that end, as of November 24, 2009, the date Claimant asserts Employer should have sent her the notice of ability to return to work form, Claimant performed the monitor position for several weeks and had not received benefits. No claim was filed or accepted at that time. Moreover, Employer did not use the medical information from its panel physicians to seek a modification or suspension of benefits or a "change" in Claimant's disability status that could have impacted her "existing" benefits. Thus, this was not a situation where Employer attempted to modify benefits based on new medical evidence. As such, the requirement for issuance of a notice of ability to work is simply inapplicable here.
Based on the foregoing, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 26th day of February, 2013, the order of the Workers' Compensation Appeal Board is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge