Opinion
No. 1633 C.D. 2013
04-30-2014
Cathy Fuller, Petitioner v. Workers' Compensation Appeal Board, (Mountain View Care Center), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Cathy Fuller (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) that affirmed the decision of a Workers' Compensation Judge (WCJ) reducing her partial disability benefits under the Workers' Compensation Act on a Petition to Suspend Compensation Benefits filed by Mountain View Care Center (Employer) in June 2010 (the 2010 Petition to Suspend). The sole issue in this appeal is whether the WCJ was required to dismiss the 2010 Petition to Suspend because of a pending appeal by Employer from the denial of an earlier Petition to Suspend Compensation Benefits. Because the 2010 Petition to Suspend was based on new facts, different from those on which the prior denial was based, we conclude that it was not barred and therefore affirm.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
Claimant, who worked for Employer as a nurse's aide, suffered a work-related injury to her ribs and right shoulder on February 10, 2008, when she slipped and fell on ice in Employer's parking lot. (12/08/11 WCJ Decision, Findings of Fact (F.F.) ¶¶1, 14; 9/28/09 WCJ Decision, F.F. ¶2.) Employer issued a Notice of Compensation Payable for this injury. (12/08/11 WCJ Decision, F.F. ¶1.) On March 20, 2008, Claimant returned to work in a modified light duty position. (9/28/09 WCJ Decision, F.F. ¶2.)
In June 2008, Employer filed a Petition to Suspend Compensation Benefits (the 2008 Petition to Suspend), contending that Claimant had returned to work at no loss of pay. (9/28/09 WCJ Decision at 1.) Claimant, however, had worked twelve-hour shifts prior to her injury and wanted to try to return to twelve-hour shifts, but Employer offered her only eight-hour shifts in the modified light duty position, which reduced her hours and earnings from what they had been before the injury. (9/28/09 WCJ Decision, F.F. ¶¶3, 6, 13; 6/2/11 WCJ Hearing Transcript (6/2/11 H.T.) at 12-16, 19-20.) On September 28, 2009, the WCJ denied the 2008 Petition to Suspend. The WCJ found that "claimant was not offered 12-hour shifts when she returned to work after the injury" and that "there was no evidence a specific job offer was made which would have eliminated claimant's loss of earnings." (9/28/09 WCJ Decision, F.F. ¶¶6, 13.) The WCJ therefore concluded that Employer "has failed to meet its burden of proving claimant returned to work at no loss in earnings or that work within claimant's restrictions was available to claimant at no loss-in-earnings." (Id., Conclusion of Law (C.L.) ¶2.) Although Claimant and Employer submitted medical evidence as to the hours that Claimant could work at the modified light duty position (id., F.F. ¶¶7-11), the WCJ did not address whether Claimant was capable of working her pre-injury hours and based his decision solely on Employer's failure to offer Claimant the same hours in the modified light duty position. Employer appealed the WCJ's denial of the 2008 Petition to Suspend to the Board, and Board, on July 28, 2011, affirmed the denial of the 2008 Petition to Suspend. (8/26/13 Board Opinion at 5.)
On June 1, 2010, while the appeal of the WCJ decision on the 2008 Petition to Suspend was pending, Employer sent Claimant a letter offering her twelve-hour shifts of a modified light duty position that its physician, Dr. Scinico, had approved as within her restrictions. (12/08/11 WCJ Decision, F.F. ¶¶10, 15; Employer Ex. 3; 12/2/10 WCJ Hearing Transcript (12/2/10 H.T.) at 26-30.) Claimant, who was working 48 hours per two-week period, did not increase her work hours or try to work any twelve-hour shifts in response to this offer, contending that she is not able to work a twelve-hour shift. (12/08/11 WCJ Decision, F.F. ¶¶10, 12, 14-15; 6/2/11 H.T. at 13-14, 16, 18-23; 12/2/10 H.T. at 30.) On June 25, 2010, based on this offer of pre-injury work hours, Employer filed the 2010 Petition to Suspend, seeking to suspend Claimant's benefits as of June 1, 2010. (12/08/11 WCJ Decision, F.F. ¶3; 2010 Petition to Suspend at 1.)
Claimant sought to dismiss the 2010 Petition to Suspend, contending that it was barred as premature because Employer's appeal of the denial of the 2008 Petition to Suspend was pending. (12/08/11 WCJ Decision, F.F. ¶4; 8/5/10 WCJ Hearing Transcript at 8-26; 12/2/10 H.T. at 5-22.) The WCJ denied Claimant's motion to dismiss and held hearings on the 2010 Petition to Suspend, at which Employer's director of human resources and Claimant testified. (12/08/11 WCJ Decision, F.F. ¶¶5, 10, 14.) In addition, Employer submitted the deposition of Dr. Scinico taken in support of the 2010 Petition to Suspend and Claimant submitted the depositions of Claimant's treating physician, Dr. Bednarz, taken with respect to both the 2008 Petition to Suspend and the 2010 Petition to Suspend. (12/08/11 WCJ Decision, F.F. ¶¶7, 11; Employer Ex. 2; Claimant Ex. 3 & C-1 thereto.)
On December 8, 2011, the WCJ issued his decision on the 2010 Petition to Suspend, finding that Claimant was not capable of working the twelve-hour shifts that she had worked before the injury, but that she was capable of working at the modified light duty position offered by Employer six hours per day, five days per week, a total of 60 hours per two-week period. (12/08/11 WCJ Decision, F.F. ¶¶17-19.) Because Employer had not shown that Claimant was capable of working her full pre-injury hours, the WCJ denied suspension of benefits. (Id., C.L. ¶3 and Order.) The WCJ, however, concluded that Employer had shown that Claimant was capable of working 12 more hours per two-week period at the position offered by Employer and, accordingly, ordered Claimant's benefits modified to reflect that reduction in her earnings loss. (Id., C.L. ¶2 and Order.) Claimant appealed the WCJ's decision to the Board, asserting both that the WCJ had erred in finding that she could work 60 hours bi-weekly and that the WCJ was barred from considering the 2010 Petition to Suspend by Employer's appeal of the denial of its 2008 Petition to Suspend. The Board, on August 26, 2013, rejected both of these arguments and affirmed the WCJ's decision. (8/26/13 Board Opinion at 2-6.)
On appeal to this Court, Claimant does not contest the merits of the WCJ's determination that she was capable of working the additional hours. Rather, she argues only that Employer's pending appeal barred it from filing the 2010 Petition to Suspend. We do not agree.
Our review is limited to determining whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence or whether constitutional rights were violated. Sharkey v. Workers' Compensation Appeal Board (Tempo, Inc.), 739 A.2d 641, 642 n.2 (Pa. Cmwlth. 1999). --------
Filing a petition to terminate, suspend or modify workers' compensation benefits is barred as premature while an appeal of an earlier WCJ decision in the same case is pending that involves the same issues and facts. Davis v. Workers' Compensation Appeal Board (H.M. Stauffer & Sons, Inc.), 760 A.2d 899, 901 (Pa. Cmwlth. 2000); Sharkey v. Workers' Compensation Appeal Board (Tempo, Inc.), 739 A.2d 641, 643 (Pa. Cmwlth. 1999); Carson/Kent Joint Venture v. Workmen's Compensation Appeal Board (Scafidi), 663 A.2d 828, 829-30 (Pa. Cmwlth. 1995); Bechtel Power Corp. v. Workmen's Compensation Appeal Board (Miller), 452 A.2d 286, 287-88 (Pa. Cmwlth. 1982). The purpose of this rule is to avoid unnecessary and counter-productive relitigation of issues identical to those that are involved in the pending appeal. Davis, 760 A.2d at 901; Sharkey, 739 A.2d at 643; Carson/Kent Joint Venture, 663 A.2d at 829; Bechtel Power Corp., 452 A.2d at 288.
This prohibition, however, only applies where the issues and facts involved in the two petitions are identical. Davis, 760 A.2d at 901-02; Sharkey, 739 A.2d at 643. Where the second petition is based on new facts concerning availability of work within the claimant's restrictions that were not before the WCJ on the prior petition, there is no relitigation of the issues that are on appeal, and filing and consideration of the second petition is not barred. Davis, 760 A.2d at 901-02.
Here, the 2010 Petition to Suspend was based on new facts, different from those on which the denial of the 2008 Petition to Suspend was based. At the time of the 2008 Petition to Suspend, Employer was unwilling to offer Claimant the same hours as before her work injury, and the petition was denied solely on the ground that Employer's offer of reduced-hour shifts did not satisfy its burden to show that work was available to Claimant at no loss of earnings. (9/28/09 WCJ Decision, F.F. ¶¶6, 13, C.L. ¶2.) In contrast, the 2010 Petition to Suspend was based on a new offer by Employer in June 2010 of a position within Claimant's medical restrictions that provided her the same hours as before her injury, and the issue was whether she was physically able to work those hours. The 2010 Petition to Suspend therefore involved no relitigation of the denial of the 2008 Petition to Suspend and was not barred by the pending appeal of that denial. Davis, 760 A.2d at 901-02; Sharkey, 739 A.2d at 643.
Accordingly, the order of the Board affirming the WCJ's order reducing Claimant's partial disability benefits is affirmed.
/s/_________
JAMES GARDNER COLINS, Senior Judge Judge McCullough did not participate in this decision. ORDER
AND NOW, this 30th day of April, 2014, the order of the Workers' Compensation Appeal Board in the above matter is affirmed.
/s/_________
JAMES GARDNER COLINS, Senior Judge