Opinion
No. 680 C.D. 2011
02-10-2012
City of Pittsburgh (Police) and UPMC Benefit Management Services, Inc., Petitioners v. Workers' Compensation Appeal Board (Bonenberger), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
The City of Pittsburgh (Employer) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) denying Employer's petition to suspend workers' compensation benefits. In doing so, the Board affirmed the decision of the Workers' Compensation Judge (WCJ), who found that Daniel Bonenberger (Claimant) was eligible for benefits because he did not voluntarily withdraw from the workforce after he accepted a disability pension.
On July 17, 2002, Claimant was injured in the course and scope of his employment as a police officer with Employer. Immediately after the injury, Claimant returned to light-duty work processing warrants and other paperwork. Claimant left this job on December 30, 2003, when Employer announced it was eliminating his position.
Employer issued a Notice of Compensation Payable (NCP) on February 3, 2004, accepting an injury to Claimant's right shoulder described as a "torn right bicep." Reproduced Record at 1a (R.R. ___). The NCP stated that Claimant had been paid benefits under what is commonly known as the Heart and Lung Act from the date of the work incident through December 29, 2003. On December 30, 2003, Claimant's Heart and Lung benefits were converted to disability benefits under the Workers' Compensation Act (Act) based upon his acceptance of a "disability retirement through [Employer]." R.R. 2a.
Act of June 28, 1935, P.L. 477, as amended, 53 P.S. §§637-638.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1 - 1041.4, 2501 - 2708.
On November 20, 2007, Employer sent Claimant, then age 59, a Notice of Ability to Return to Work based upon the results of an independent medical examination (IME) performed on October 25, 2007. Employer filed a suspension petition on December 17, 2007, alleging that Claimant was physically capable of working but had voluntarily removed himself from the workforce. Claimant denied Employer's allegations, and the matter was assigned to the WCJ.
Employer offered the testimony of its IME physician, Jon B. Tucker, M.D., who is board certified in orthopedic surgery. Based upon his examination of Claimant and review of Claimant's medical records and history, Dr. Tucker concluded that Claimant had achieved maximum medical improvement and exhibited ongoing physical restrictions that were permanent and stable. Notes of Testimony (N.T.), March 31, 2008, at 12. Dr. Tucker opined that Claimant "was not totally disabled ... [and] was capable of dispensing with medium-duty work." Id. at 13. Dr. Tucker testified that he would impose no restrictions on Claimant lifting and carrying up to 25 pounds; limit lifting and carrying 26 to 50 pounds to a one to three-hour basis; and totally restrict lifting and carrying more than 50 pounds. Id. at 14.
Claimant offered the testimony of his primary care physician, Bernard Bernacki, D.O., in opposition to Employer's suspension petition. Dr. Bernacki is board certified in family practice and has been Claimant's treating physician since 1989. Dr. Bernacki testified that he did not treat Claimant for his work injury until March 2005, when he began treating Claimant for neck and shoulder pain. Dr. Bernacki testified in detail about Claimant's numerous office visits and treatments. Dr. Bernacki diagnosed Claimant with cervical degenerative disc disease, cervical spinal stenosis, degenerative arthritis of the neck, mechanical trauma of the ruptured bicipital tendon and post repair, and neuropathy secondary to that injury. N.T., June 26, 2008, at 21. Dr. Bernacki opined that Claimant's shoulder, forearm and elbow complaints are attributable to the 2002 work injury.
Dr. Bernacki reviewed Dr. Tucker's IME report and disagreed with Dr. Tucker's conclusion that Claimant could perform medium-duty work. Dr. Bernacki testified:
The lifting and carrying, at the low level I agree with. The 26 to 50 pounds 1 to 3 hours, I definitely don't agree with that. I don't feel that the patient can sustain that, and the reason I know that is in discussion with the patient I asked him what he was capable of doing, and he is, as I said, a fellow who prides himself on his physical conditioning. He does get out. He does like to be as physical as he can, but when he does activities with his upper extremities, that's his limiting factor.Id. at 25. Dr. Bernacki testified that Claimant could work light duty, adding that
it was evident that he had restrictions, and he could not do police work. It was obvious that [Claimant] would desire to be able to do some form of light duty, to keep him active, maintain his earning capacity, and his pension earnings, et cetera, but that was not his choice.Id. at 33.
Claimant testified on his own behalf before the WCJ about his separation from employment, which he contended was not voluntary. Claimant stated:
I retired the last day, December 31st of '03 because it was my understanding, and everyone that worked for the City, that all light-duty positions were going to be - that I was doing at the time when I was injured, were being eliminated and that if we didn't retire by December 31st, that we would end up paying for our own medical benefits, or part of them, the following year in '04. So it came down to the last day that I was forced to retire. I didn't want to wait and then be forced out because the doctors already said that I couldn't return to my original position as a sergeant.R.R. 90a-91a.
When asked whether he has looked for work since retiring in 2003, Claimant testified:
Q Have you worked since retiring in 2003?
A No.
Q Have you searched for work?
A Yes. I went back to school. Well, I put in - I was in the Marine [Corps] for 30 years, Your Honor, reserve and active duty, and I thought I could go back in, you know, and they wouldn't take me with the arm and everything.
The National Guard, I could have went in before I was 60, but they won't take me either because of the arm. You know, there's no way.
I had an offer from Dynacorp, but I couldn't get on there because of Iraq, but I couldn't take that job because of the arm, too.R.R. 97a-98a. Claimant acknowledged on cross-examination that he had not applied for any "regular job[s]" in the Pittsburgh area because there are no jobs for someone of his age with a disability. R.R. 103a. Claimant also testified that he returned to school to take a math refresher course and considered pursuing a law degree. He chose not to apply to law school because at his age it would be cost prohibitive.
Finally, Claimant presented the testimony of Celia Evans, a vocational expert, who completed a vocational analysis in August 2008 based upon Claimant's aptitude and interest testing as well as educational and work history. Evans also reviewed the reports of Drs. Bernacki and Tucker, including the restrictions each physician placed on Claimant. Evans opined that
there are no contemporary occupational areas in this regional labor market that are appropriate for [Claimant] and that hold earning potential for him considering his age, his physical limitations, his education and his work experience.R.R. 35a-36a. Evans conceded that Claimant could work in a position such as a greeter at Wal-Mart because he has the intelligence to perform such a job and it comports with his physical limitations. Evans did not consider this an appropriate vocational area for Claimant, however, because being a Wal-Mart greeter does not require the same "skill set" as a police officer. R.R. 69a.
The WCJ denied Employer's suspension petition. The WCJ credited Claimant's testimony based upon his demeanor. He also credited the testimony and opinions of Celia Evans, noting that Employer did not offer vocational expert testimony. The WCJ rejected Dr. Tucker's testimony in favor of Dr. Bernacki's testimony that Claimant is fit only for light-duty work. The WCJ found that Claimant established he was forced to leave his modified-duty employment with Employer. The WCJ also found that notwithstanding his retirement pension, Claimant has continued to look for work and, thus, did not withdraw from the workforce. Employer appealed to the Board, which affirmed the denial of the suspension petition. In doing so, the Board applied this Court's decisions in City of Pittsburgh v. Workers' Compensation Appeal Board (Robinson), 4 A.3d 1130 (Pa. Cmwlth. 2010), appeal granted, ___ Pa. ___, 17 A.3d 917 (2011), and Day v. Workers' Compensation Appeal Board (City of Pittsburgh), 6 A.3d 633 (Pa. Cmwlth. 2010), which the Board noted were decided after the WCJ had rendered his adjudication in this case. Employer now petitions for this Court's review.
On appeal, Employer argues that the Board erred by improperly applying the burden of proof announced by this Court in Robinson to determine whether Claimant intended to retire. Employer contends that the Board failed to consider whether Claimant engaged in a good faith job search and, if it had done so, it would have been constrained to find that Claimant did not and that Employer was therefore entitled to a suspension.
This Court's scope and standard of 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. Robinson, 4 A.3d at 1133 n.1 (citation omitted). Substantial evidence is such relevant evidence a reasonable person might find sufficient to support the WCJ's findings. Id. (citation omitted). --------
Recently, this Court summarized the legal standard for suspending the benefits of an employee collecting a retirement pension as follows:
The initial burden in a suspension petition is always on the employer. Usually, in order to modify or suspend benefits, an
employer must satisfy the standard set out in [Kachinski v. Workmen's Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987)] and in Section 306(b)(2) ... by showing that due to a change in the claimant's physical condition and the availability of suitable work, he is no longer suffering a loss of earning power due to his work-related injury. Under [Southeastern Pennsylvania Transportation Authority v. Workmen's Compensation Appeal Board (Henderson), 543 Pa. 74, 669 A.2d 911 (1995)] and its progeny, the Employer still bears the burden of showing that the claimant is no longer suffering from a loss of earning power due to his work-related injury. The employer does this, not by using the Kachinski or Section 306(b)(2) standards, but by showing "by the totality of the circumstances, that the claimant has chosen not to return to the workforce." Robinson, 4 A.3d at 1138. Only after the employer has carried its burden of showing that the claimant has retired does the burden shift to the claimant to rebut the presumption that he has voluntarily withdrawn from the workforce. Henderson, 543 Pa. at 79, 669 A.2d at 913. As discussed above, a claimant may satisfy this burden either by showing that he is still looking for work or has been forced to withdraw from the entire workforce by his work-related disability.Day, 6 A.3d at 641 (emphasis added).
Applying the foregoing principles, Employer first had to show that Claimant had, in fact, retired. Employer met its burden through Claimant's own credited testimony that he retired at the end of December 2003 because his light-duty position was being eliminated and he wanted to maintain his medical benefits, which he could do by retiring.
Once Employer established the fact of Claimant's retirement, the burden shifted to Claimant to rebut the presumption that he voluntarily withdrew from the workforce. Day, 6 A.3d at 641. Claimant could do this either by showing he was still looking for work or was forced to withdraw from the entire workforce by his work-related disability. Id. Regarding the second alternative, Claimant had to "establish that the work-related injury made him incapable of working at any job in the entire labor market." Duferco Farrell Corp. v. Workers' Compensation Appeal Board (Zuhosky), 989 A.2d 63, 66 (Pa. Cmwlth. 2010). Claimant did not satisfy this standard because, according to the credited testimony of his own medical expert, Claimant was capable of light-duty work. His vocational expert also conceded that a job such as a Wal-Mart greeter fit within Claimant's physical restrictions. Thus, in order to be eligible for continuing disability compensation, Claimant had to prove that he was still actively seeking employment.
To show that he was actively seeking employment,
Claimant had to show that he engaged in a good-faith job search. Mason v. Workers' Compensation Appeal Board (Joy Mining Machinery and AIG Claim Services), 944 A.2d 827 (Pa. Cmwlth. 2008). The duty of "good-faith" has been defined as "[h]onesty in fact in the conduct or transaction concerned." Somers v. Somers, [613 A.2d 1211, 1213 (1992)]. To show "good-faith" then, a claimant has to show that he has honestly undertaken efforts where an employer knows that he is seeking employment.Pennsylvania State University/PMA Insurance Group v. Workers' Compensation Appeal Board (Hensal), 948 A.2d 907, 910-11 (Pa. Cmwlth. 2008). This Court has explained that "a claimant whom an employer has shown to have retired may rebut that showing by manifesting an intent to remain connected to the workforce by seeking employment within his limitations." Day, 6 A.3d at 642 (emphasis added).
We agree with Employer that the record does not support the finding that Claimant engaged in a good-faith job search following his retirement. According to Claimant's testimony, his job search consisted of contemplating re-entering the Marine Corps or National Guard. He pursued neither option because he knew he would be rejected because of his age and injured arm. Claimant testified that he received one job offer from a military contractor, but he turned it down because of his arm. By his own admission Claimant did not apply for any "regular jobs" in the Pittsburgh area because he believed none were available. In short, Claimant did not offer evidence that he sought employment within his physical limitations. Therefore, he failed to rebut the presumption that he voluntarily withdrew from the workforce when he retired, and Employer was entitled to a suspension.
Accordingly, for all of the foregoing reasons, we reverse the adjudication of the Board.
/s/_________
MARY HANNAH LEAVITT, Judge
ORDER
AND NOW, this 10th day of February, 2012, the order of the Workers' Compensation Appeal Board in the above-captioned matter, dated March 15, 2011, is REVERSED.
/s/_________
MARY HANNAH LEAVITT, Judge