Opinion
No. 713 C.D. 2013
10-17-2013
Joseph Lineman, Petitioner v. Workers' Compensation Appeal Board (Marjam Supply Company), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In this appeal, Joseph Lineman (Claimant) asks whether the Workers' Compensation Appeal Board (Board) erred in affirming a Workers' Compensation Judge's (WCJ) decision that granted a petition to suspend workers' compensation benefits filed by Claimant's former employer, Marjam Supply Company (Employer). The WCJ determined Claimant was capable of performing light duty work, and Employer would have provided Claimant with such work, but Claimant violated Employer's drug-free workplace policy, resulting in his discharge.
Claimant argues the WCJ erred in suspending his benefits where Employer did not prove that Claimant's discharge was unrelated to the work injury, and that work within Claimant's physical capabilities was actually available. Additionally, Claimant argues the WCJ erred in suspending benefits where Employer did not prove it issued a notice of ability to return to work. After review, we affirm.
I. Factual and Procedural Background
Claimant worked for Employer as a forklift operator. In July 2009, he sustained a work-related sprain/strain of his lumbar spine while lifting and carrying a pipe. Employer accepted liability through a Notice of Compensation Payable (NCP).
After Claimant returned to work with no loss in earnings on August 20, 2009, Employer issued a notification of suspension. Claimant worked until August 25, 2009, when his back injury recurred. After the re-injury, Employer asked Claimant to supply a urine sample pursuant to its drug policy. The urine sample tested positive.
Claimant sought to reinstate benefits by filing review and penalty petitions. These petitions were eventually resolved by an approved stipulation, pursuant to which the NCP was amended to include a herniated disc at L4-5 with right L4 nerve root impingement. Additionally, Employer agreed to reinstate Claimant's benefits effective August 26, 2009.
In April 2010, after the resolution of Claimant's petitions, Employer filed the suspension petition which is currently at issue. Employer alleged that as of October 20, 2009, Employer would have provided Claimant a job within his restrictions but for the fact that Claimant failed a drug test and did not contact Employer following a required enrollment, at his expense, in a drug rehabilitation program. Claimant denied the allegations. Hearings ensued before a WCJ.
In support of its suspension petition, Employer submitted the deposition testimony of Robert Mannherz, M.D. (Employer's Physician), who is board-certified in orthopedic surgery. Employer's Physician performed an independent medical examination of Claimant, at which time he obtained a history and reviewed Claimant's medical records and a diagnostic study. Employer's Physician opined Claimant was capable of performing light duty work on a full-time basis as of October 28, 2009. Specifically, Claimant could sit for up to four hours a day, stand and walk for up to two hours a day, and lift and carry up to ten pounds. Claimant could occasionally bend, climb, squat, twist, drill, push and reach, but he could not crawl. Claimant could also drive a motor vehicle.
Employer also submitted the deposition testimony of Robert Applebaum, who serves as a manager and records custodian for Employer (Employer's Manager). Employer's Manager testified that pursuant to Employer's drug-free workplace policy, if an injured employee tests positive for drugs after a work injury, he must enroll in and pay for a rehabilitation program. The employee is then responsible for taking a re-test within 30 days. The purpose of the policy is to ensure Employer's heavy machinery is used safely, so as to avoid injuries in the workplace. Employer's Manager testified that when Employer hired Claimant, he signed a drug-free workplace policy acknowledgement and consent form. Additionally, Claimant subsequently signed a document stating he attended the annual meeting at which Employer's drug policy was discussed.
Employer's Manager testified Claimant underwent drug testing on September 2, 2009. Claimant tested positive for marijuana. After receiving the test results, Employer's Manager informed Claimant it was his responsibility to find and complete a rehabilitation program, and then submit to a re-test within 30 days. Employer's Manager informed Claimant that if he did not comply with the policy, or failed the re-test, Employer would terminate his employment. Claimant never contacted Employer's Manager about enrolling in a program and re-testing.
Employer's Manager also reviewed the work restrictions set forth by Employer's Physician. He testified Employer had work available within Claimant's restrictions, and if Claimant had complied with Employer's drug policy, Employer would have offered Claimant work within those restrictions. Because Claimant did not contact Employer's Manager indicating he complied with the drug policy, however, Employer terminated Claimant's employment in April 2010.
Employer also submitted the deposition testimony of Jesenia Rivera, a medical assistant for Concentra. Rivera's job duties include performing drug screening. Rivera explained that on September 2, 2009, she collected a urine sample from Claimant for purposes of drug screening consistent with routine drug testing procedures. Additionally, Rivera explained in detail the process used for collecting and transporting the urine sample to the laboratory for testing.
In addition, Employer submitted the deposition testimony of Phillip Greene, M.D., regarding the testing of Claimant's urine sample. Dr. Greene testified that, within a reasonable degree of medical certainty, the laboratory result for Claimant's specimen was positive for carboxy THC cannabinoids, or marijuana. After Dr. Greene received the results and verified the chain of custody, he contacted Claimant to interview him in accordance with routine procedure. Claimant admitted that he used marijuana. Shortly thereafter, Dr. Greene sent Employer a report advising it of Claimant's test results. Dr. Greene testified there was no concern that Claimant's result was a false positive because the proper procedures were used, the screening was reliable, and Claimant admitted he used marijuana.
For his part, Claimant testified that after his initial work injury in July 2009, he returned to work from August 20 through August 25, 2009. On August 25, he hurt his back when he lifted a box. At that time, he began having pain on the right side of his back and down his right leg, and Employer sent him to its panel physician.
Claimant underwent a drug test. Claimant testified he did not take any illegal drugs since he began working for Employer in 2006, and he did not consume anything that would explain why the results of the drug test were positive. Claimant also testified Employer asked him to attend a rehabilitation program, but Claimant did not feel he needed to attend such a program, and he could not afford the program.
Claimant testified he still suffers constant pain in the middle of his lower back and needle-like pain down his right leg and numbness in his toes. He also experiences pain in his left buttock and left leg. Claimant testified he can sit for about 30 to 60 minutes, and then he has to stand for about 20 to 30 minutes to stretch and walk around. He can stand for about an hour before his pain starts, and he can walk about two city blocks. Claimant does not feel he is capable of performing any work. Claimant testified his physician, Norman B. Stempler, D.O. (Claimant's Physician), did not release him to return to work.
Claimant also submitted the deposition testimony of his Physician, who is board-certified in orthopedic surgery, and who began treating Claimant in October 2009. Based on his examinations of Claimant, Claimant's history and a review of Claimant's medical records and diagnostic study, Claimant's Physician opined Claimant is disabled and needed definitive treatment prior to his return to any gainful employment.
Ultimately, the WCJ rejected Claimant's testimony and credited the testimony of Employer's Manager and Rivera. Additionally, the WCJ credited the opinions of Dr. Greene and Employer's Physician over that of Claimant's Physician.
Among other things, the WCJ stated Claimant's testimony regarding his inability to perform any type of work was inconsistent with his admission of being able to sit for up to 60 minutes and stand for about an hour, driving an hour or taking two busses to see his physicians and helping to care for his child. WCJ Op., 6/30/11, Finding of Fact No. 7.
The WCJ determined Claimant was physically capable of performing work within the restrictions set by Employer's Physician. The WCJ further determined Claimant violated Employer's drug policy by testing positive for marijuana and by failing to enter a rehabilitation program and obtain a second drug test. The WCJ determined that, as of October 28, 2009, Employer would have provided Claimant with work within Employer's Physician's restrictions if not for the fact that Claimant violated Employer's drug policy. The WCJ determined Employer terminated Claimant's employment as of April 6, 2010, based on Claimant's violation of that policy. The WCJ also determined that Claimant's loss of earnings was due to his own conduct, not his work injuries. Thus, the WCJ concluded Employer met its burden of proving it was entitled to a suspension of Claimant's benefits as of October 28, 2009.
Claimant appealed, and the Board affirmed. This appeal by Claimant followed.
II. Issues
On appeal, Claimant presents three issues. Specifically, he argues the WCJ erred in suspending his benefits where Employer did not prove: (1) Claimant's discharge was unrelated to the work injury; (2) work within Claimant's physical capabilities was actually available; and, (3) it issued a notice of ability to return to work.
Our review is limited to determining whether the WCJ's findings of fact were supported by substantial evidence, whether an error of law was committed or whether constitutional rights were violated. Dep't of Transp. v. Workers' Comp. Appeal Bd. (Clippinger), 38 A.3d 1037 (Pa. Cmwlth. 2011).
III. Discussion
A. Claimant's Discharge
At the outset, Claimant does not dispute the evidence establishes he tested positive for marijuana. Nor does he dispute that Employer's Manager's testimony establishes Employer's drug policy provided for termination where an employee tested positive for drugs and then failed to enter a rehabilitation program and submit to re-testing. "Rather, Claimant submits that the testimonies of these witnesses do not establish that Claimant's post-injury misconduct was unrelated to his work injury." Pet'r's Br. at 14.
To that end, Claimant argues Employer's Manager admitted that at the time of Claimant's drug testing, Claimant was off work due to a recurrence of his work-related disability. He also admitted that Claimant remained off work due to his work injury at the time that Claimant was required to pay for a rehabilitation program and a second drug test.
Further, Claimant argues that the prior WCJ decision in January 2010, which resolved Claimant's petitions by stipulation, conclusively established Claimant suffered a recurrence of his work-related disability on August 26, 2009. Thus, as of the date of that prior decision, Claimant continued to suffer a work-related disability. As a whole, Claimant argues the testimony of Employer's Manager and the prior WCJ decision establish Claimant's wage loss after his positive drug test continued to be related to his work injury. We disagree.
As to the burden of proof on a suspension petition, this Court recently explained:
Suspension of benefits is governed by [S]ection 413 of the Workers' Compensation Act (Act). FN5 In Kachinski v. Workmen's Compensation Appeal Board (Vepco Construction Co.), 516 Pa, 240, 532 A.2d 374 (1987), our Supreme Court interpreted [S]ection 413 of the Act as follows:
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).
4. If the referral fails to result in a job then claimant's benefits should continue.
Kachinski, 516 Pa. at 252, 532 A.2d at 380.
Generally, a suspension of benefits is appropriate where the employer establishes that the claimant has recovered all of his or her earning power; otherwise, benefits are only modified. 309 Nissan v. Workers' Compensation Appeal Board (Horowitz), 819 A.2d 126 (Pa. Cmwlth. 2003). The employer has the burden of proving that the claimant's work-related injury has improved sufficiently for the claimant to return to work and that a job the claimant is capable of performing is available to the claimant; once the employer meets this burden, the burden shifts to the claimant to demonstrate that he or she responded to the job offer in good faith. Darrall v. Workers' Compensation Appeal Board (H.J. Heinz Company), 792 A.2d 706 (Pa. Cmwlth. 2002).
FN 5 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §772, which states as follows: A workers' compensation judge designated by the department may, at any time, modify, reinstate, suspend, or terminate a notice of
Southeastern Pennsylvania Transp. Auth. (SEPTA) v. Workers' Comp. Appeal Bd. (Cunningham), ___ A.3d ___, ___ (Pa. Cmwlth., No. 2045 C.D. 2011, filed July 12, 2013) (en banc), slip op. at 5-6.compensation payable, an original or supplemental agreement or an award of the department or its workers' compensation judge, upon petition filed by either party with the department, upon proof that the disability of an injured employe has increased, decreased, recurred or has temporarily or finally ceased.
"[T]he only relevant issue in deciding whether the claimant's benefits must be suspended under Section 413 of the [Act], is whether the claimant's loss of earnings was no longer the result of the work injury; if the claimant's loss of earnings is related to a factor other than the work injury, the claimant's benefits must be suspended." Edwards v. Workers' Comp. Appeal Bd. (Sear's Logistic Servs.), 770 A.2d 805, 808 (Pa. Cmwlth. 2001) (emphasis added) (citations omitted); see also Brewer v. Workers' Comp. Appeal Bd. (EZ Payroll & Staffing Solutions), 63 A.3d 843 (Pa. Cmwlth. 2013); Harvey v. Workers' Comp. Appeal Bd. (Monongahela Valley Hosp.), 983 A.2d 1254 (Pa. Cmwlth. 2009); Coyne v. Workers' Comp. Appeal Bd. (Villanova Univ.), 942 A.2d 939 (Pa. Cmwlth. 2008).
Further,
[w]here the claimant's loss of earnings is a result of a termination for misconduct unrelated to the injury, the requirement of causal connection to the work-related injury cannot be satisfied and claimant is not entitled to disability benefits for that loss. Vista International Hotel v. Workmen's Compensation Appeal Board (Daniels), 560 Pa. 12, 25-29, 742 A.2d 649, 656-58 (1999); Hertz-Penske Truck Leasing Co. v. Workmen's Compensation Appeal Bd. (Bowers), 546 Pa. 257, 261-62, 684 A.2d 547, 549-50 (1996); Harvey [983 A.2d at
1261-62]; Coyne, 942 A.2d at 945-46; Edwards, . For a termination to bar disability benefits, the employer must show that the termination was for conduct that amounts to bad faith or a lack of good faith on the part of the claimant. Vista International Hotel, 560 Pa. at 28-29, 742 A.2d at 657-58; Coyne, 942 A.2d at 945-46; Virgo v. Workers' Compensation Appeal Board (County of Lehigh-Cedarbrook), 890 A.2d 13, 18-19 (Pa. Cmwlth. 2005).BJ's Wholesale Club v. Workers' Comp. Appeal Bd. (Pearson), 43 A.3d 559, 563 (Pa. Cmwlth. 2012) (emphasis added); see Brewer. Whether a claimant was discharged for conduct evidencing a lack of good faith is a question for the WCJ, as fact finder, to determine. Sauer.
If the employer has provided work within the claimant's physical limitations at no loss of pay and has shown that the claimant was terminated 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-related injury. Sauer v. Workers' Compensation Appeal Board (Verizon Pennsylvania, Inc.), 26 A.3d 531, 533, 535-38 (Pa. Cmwlth. 2011); Coyne, 942 A.2d at 945-46; Virgo, 890 A.2d at 15-21; Edwards, 770 A.2d at 807-08. Under such circumstances, the claimant is not entitled to workers' compensation disability benefits because 'his loss of earnings subsequent to the discharge was caused by his own action, not by the work injury.' Edwards, 770 A.2d at 808; see also Sauer, 26 A.3d at 538 (benefits were properly denied 'because the loss of earnings ... was due to Claimant's discharge for fault'). Violation of an employer's substance abuse policy constitutes conduct that amounts to lack of good faith on the part of the claimant and a claimant terminated for such conduct is not entitled to disability benefits for that loss. Edwards, 707 A.2d at 808, 810.
Here, the WCJ made the following crucial findings (with emphasis added):
9. The Claimant was physically capable of performing work within the restrictions set by [Employer's Physician].WCJ Op., 6/30/11, Findings of Fact (F.F.) Nos. 9-12. The record supports the WCJ's findings. See Certified Record (C.R.), Ex. D-3, Transcript of Deposition of Robert Mannherz M.D., 6/23/10, at 13-14, Ex. D-Mannherz-2 (Physical Capabilities Form); Ex. D-2, Transcript of Deposition of Robert Applebaum, 7/19/10, at 11-12, 13-17, Ex. Applebaum-6. In turn, these findings support the WCJ's determination that Claimant's wage loss was based on his misconduct rather than the work injury; therefore, Employer was entitled to a suspension of Claimant's benefits. Brewer; BJ's Wholesale Club; Edwards.
10. The Claimant violated the Employer's drug policy by testing positive for marijuana, and by failing to enter a rehabilitation program and obtain a second drug test.
11. As of October 28, 2009, the Employer would have provided the Claimant with work that fell within [Employer's Physician's] restrictions if not for the fact that he violated the Employer's drug policy. The Claimant's employment was terminated as of April 6, 2010, due to the violation.
12. The Claimant's his [sic] loss of earnings as of October 28, 2009, was due to his own conduct and not his work injuries.
Further, Claimant offers no argument regarding the timing of the drug test, which occurred approximately a week after he went off work on August 25, 2009.
Nevertheless, Claimant argues the prior WCJ decision on Claimant's petitions and Employer's Manager's testimony prove Claimant's wage loss is related to the work injury rather than his misconduct. We reject this argument.
The prior WCJ decision which accepted the parties' stipulation resolved only Claimant's review and penalty petitions. C.R., Ex. D-5. Through the stipulation, Employer agreed to expand the scope of the NCP and to reinstate Claimant's indemnity benefits as of August 26, 2009. Id.
Contrary to Claimant's arguments, the prior WCJ decision and the parties' stipulation do not establish that Claimant's wage loss after establishment of Employer's Physician's restrictions continued to be related to his work injury. Rather, Employer's Manager's testimony supports the WCJ's determination that Claimant's continuing wage loss resulted from his misconduct rather than his work injury, and that Employer would have offered Claimant a position within the restrictions had he complied with Employer's drug policy. See C.R., Ex. D-2, Applebaum Dep. at 11-12, 15-17, Ex. Applebaum-6.
B. Actual Availability of Modified Work
Claimant next asserts Employer failed to prove by substantial, competent evidence that work within Claimant's physical capabilities was actually available to him; thus, the WCJ erred in granting the suspension petition.
Claimant maintains that in finding suitable work was available, the WCJ relied on testimony from Employer's Physician and Employer's Manager. However, the testimony of these witnesses does not constitute substantial, competent evidence that suitable work was actually available to Claimant.
Claimant asserts Employer's Physician admitted that as of October 28, 2009, Claimant continued to suffer pain related to his work injury. Further, Employer's Physician implied that, because Claimant could perform the activities of daily living with pain, he could perform the work activities with pain. Claimant maintains that where performance of a job will cause a claimant to experience pain, the job is not available and a modification of benefits is not supported. Crowell v. Workmen's Comp. Appeal Bd. (Johnson Dairy Farm), 665 A.2d 30 (Pa. Cmwlth. 1995); Chavis v. v. Workmen's Comp. Appeal Bd. (Port Auth. of Allegheny), 598 A.2d 97 (Pa. Cmwlth. 1991).
In any event, Claimant maintains, even if Employer's Physician's testimony constitutes substantial competent evidence as to Claimant's work abilities, that testimony standing alone is insufficient to carry Employer's burden. Rather, Employer also had to prove work within Employer's Physician's restrictions was actually available. Claimant argues neither Employer's Manager's testimony nor Employer's letter to Claimant reveal Employer was aware of all of Employer's Physician's restrictions.
Additionally, Claimant argues the prior WCJ decision on Claimant's petitions conclusively established that as of October 28, 2009, Claimant continued to suffer a work-related disability. Claimant contends this prior determination was based on the parties' stipulation. According to Claimant, the evidence accepted by the prior WCJ establishes that as of December 2009, Employer was aware of Claimant's positive drug test, of Claimant's non-compliance with Employer's drug policy, and of Employer's Physician's October 28, 2009 release to return to work with restrictions. Notwithstanding this knowledge, Employer agreed that Claimant's ongoing wage loss was work-related and further, that Claimant was entitled to a reinstatement of benefits as of August 26, 2009. Claimant maintains Employer cannot now deny that to which it previously agreed. Again, we disagree.
Here, the WCJ found that Claimant was physically capable of performing work within the restrictions set by Employer's Physician, and that Employer would have provided Claimant with work within those restrictions if not for the fact that Claimant violated Employer's drug policy. F.F. Nos. 9, 11. These findings are supported by the testimony of Employer's Physician and Employer's Manager. See C.R., Ex. D-3, Mannherz Dep. at 13-14; Ex. D-2, Applebaum Dep. at 14-16.
Specifically, Employer's Physician testified:
I put him on what I would consider light-duty type work, which restricted sitting to four hours a day, standing and walking each to two hours a day, lifting and carrying up to 10 pounds and some restrictions regarding occupational bending, climbing, squatting, twisting, drilling, pushing, not crawling and frequently reaching. I would also allow him to operate a motor vehicle.Mannherz Dep. at 13.
Further, Employer's Manager testified he was aware of Employer's Physician's restrictions and, if Claimant had complied with Employer's drug policy, Employer would have made the following types of jobs available to Claimant: "Boxing up small boxes of screws, sweeping, filing documents in the office." Applebaum Dep. at 15-16. Based on our review of the testimony of Employer's Physician and Employer's Manager, we reject Claimant's argument that the testimony of these witnesses does not constitute substantial, competent evidence to support the WCJ's determination.
Moreover, although Employer was required to identify an actual available position within Claimant's medical restrictions, Employer was not required to offer that available position to Claimant based on Claimant's termination for violating Employer's drug policy. Harvey; Edwards.
Additionally, we reject Claimant's reliance on Chavis and Crowell. In Chavis, we held that, although several positions referred to the claimant by a vocational expert may have been available to him, the evidence showed the claimant could not perform the duties of any of the positions for "any appreciable duration or without incurring chronic pain." Chavis, 598 A.2d at 100. Thus, we determined the claimant was not capable of performing the positions, and the employer was not entitled to a modification of the claimant's benefits.
Similarly, in Crowell, we held a claimant was disabled from his pre-injury position where the testimony of the only medical witness established the claimant "would continue to experience pain" if he returned to that position, thus justifying a reinstatement of the claimant's benefits following a layoff. Crowell, 665 A.2d at 33.
Here, unlike in Chavis and Crowell, Employer's Physician, whom the WCJ credited, explained: "The condition that [Claimant] has does cause symptoms, but these activities that I would allow him to do would not exacerbate those symptoms and, therefore, [he would] be able to work during the course of his treatment." Mannherz Dep. at 14 (emphasis added); see Ex. D-Mannherz-2 (Physical Capabilities Form). Thus, while Claimant continues to experience symptoms as a result of his condition, the light duty work approved by Employer's Physician would not exacerbate Claimant's symptoms. Further, Employer's Physician disagreed with Claimant's Physician's opinion that Claimant was totally disabled from all gainful employment, explaining:
Again, I evaluated the patient, looked at his studies. The patients that I treat in my own practice with this -- these same type of conditions, although are symptomatic, can function. The restrictions that I placed on him are not activities that change much that he does in the course of his daily activities, because it's not requiring him to do any lifting, allows him to change position. So it would be appropriate and not put him in a position where he's totally disabled.Mannherz Dep. at 16.
In sum, although Claimant still suffers some symptoms from his condition, Employer's Physician's testimony that Claimant was not totally disabled and could perform light duty work that would not exacerbate his symptoms is sufficient to distinguish this case from Chavis and Crowell. Cf. Brobst v. Workers' Comp. Appeal Bd. (Schuylkill Prods., Inc.), 824 A.2d 411, 415-16 (Pa. Cmwlth. 2003) (distinguishing Chavis where testimony of credited physician revealed claimant would experience pain from his work-related condition "whether or not" he performed a modified duty job within his restrictions; claimant could not avoid pain by not performing the job; also, stating in footnote that Crowell was similar to Chavis); see also D. Torrey & A. Greenberg, WORKERS' COMPENSATION LAW & PRACTICE (3rd ed.) §6:116 (observing [Chavis] has been subject to criticism because it fails to recognize the "long-respected and commonplace distinction" between "pain and chronically disabling pain.") (Emphasis in original.) Thus, we discern no error in the WCJ's ultimate determination that, if Claimant would have complied with Employer's drug policy, work was actually available to Claimant within his restrictions.
Further, we reject Claimant's argument that the prior WCJ decision and the parties' stipulation precluded Employer from seeking a suspension here. Neither the prior WCJ decision nor the stipulation make any mention of Employer's right to seek a suspension of benefits after August 26, 2009. Thus, neither the prior WCJ decision nor the parties' stipulation barred Employer from seeking a suspension of Claimant's indemnity benefits.
C. Notice of Ability to Return to Work
As a final issue, Claimant argues there is no evidence that Employer sent Claimant a notice of ability to return to work as required by Section 306(b)(3) of the Act, 77 P.S. §513(3), which is a prerequisite to obtaining a modification or suspension of benefits. Thus, Claimant contends, Employer was precluded from seeking a suspension of benefits here.
In determining Employer was not required to issue a notice of ability to return to work based on the facts presented here, the Board explained (with emphasis added):
In the instant case, the [WCJ] found that Claimant was discharged from employment because he failed a drug test and
failed to comply with the requirement that he attend a rehabilitation program. Therefore, although [Employer] had a light duty position available to Claimant, it did not have to offer Claimant that position because he had been terminated from employment due to a violation of a work rule in failing the drug test and not attending rehabilitation. Although the Court has held that compliance with the provisions of Section 306(b)(3) is a threshold burden an employer must satisfy to obtain a modification or suspension of a claimant's benefits, the Court in Burrell v. Workers' Compensation Appeal Board (Philadelphia Gas Works), 849 A.2d 1282, 286 (Pa. Cmwlth. 2004) explained the purpose of Section 306(b)(3), stating:
Compliance with the provisions of Section 306(b)(3) is a threshold burden which must be met in order to obtain a modification or suspension of Claimant's benefits. However, Section 306(b)(3) is expressly limited to modifications sought upon the receipt of medical evidence. Here, [the] [e]mployer sought modification not on the basis of medical evidence, but on the basis of surveillance evidence and expert vocational expert testimony.
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. Where, as here, a claimant determines his own physical capacity without new medical information, formal notice to him does not advance the purpose of employer disclosure. Moreover, under these circumstances the claimant enjoys a superior position to control timely notice.
Since a job within Claimant's restrictions was available to him as of October 28, 2009 but had not been offered to him because he had failed to comply with Employer's drug policies which resulted in his termination, [Employer] was not required to provide Claimant with a Notice of Ability to Return to Work as such formal notice would not advance the purpose of employer disclosure where Claimant's loss in earnings was not due to the work injury but was caused by his own actions. In other words, any impact on his 'existing benefits' was not due to a change in physical condition but due to the discharge that
was caused by Claimant's own action, not the work injury. Therefore, even without a Notice of Ability being issued, a suspension was appropriate in this case.Bd. Op., 3/28/13, at 4-5. We discern no error in the Board's determination that Employer was not required to issue a notice of ability to return to work here.
To that end, our decision in Brewer is analogous. There, a WCJ determined the claimant sustained a work injury, but did not prove a compensable disability because the employer discharged him for failing a drug test. The employer's branch manager testified that, if the claimant was not terminated for violating the employer's drug policy, the employer would have provided the claimant a position within his medical restrictions. Thus, the WCJ granted the claimant's claim petition, but suspended benefits as of the date of the work injury. Before this Court, the claimant argued the WCJ erred in suspending benefits where the employer did not issue a notice of ability to return to work. Rejecting this argument, we explained:
Section 306(b)(3) of the Act provides as follows:
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:
(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.
Brewer, 63 A.3d at 846-47.
77 P.S. § 512(3). Compliance with Section 306(b)(3) is a 'threshold burden an employer must satisfy to obtain a modification or suspension of a claimant's benefits.' Allegis Group (Onsite) v. Workers' Compensation Appeal Board (Henry), 882 A.2d 1, 4 (Pa. Cmwlth. 2005). However, 'Section 306(b)(3) is expressly limited to modifications sought upon the receipt of medical evidence.' Burrell .
Here, the WCJ found that although Claimant had suffered a work-related injury, his loss of earnings was caused by his misconduct, not his injury. A notice of ability to return to work was not required because Section 306(b)(3) of the Act is limited to modifications based on medical evidence received by the employer. ...
As in Brewer, the WCJ here determined Claimant's wage loss was caused by his misconduct, not his injury. F.F. No. 12. Thus, a notice of ability to return to work was not required because Section 306(b)(3) of the Act is limited to modifications based on medical evidence received by the employer. As such, Claimant's argument fails.
In the alternative, Employer argues that if this Court decides that the record should contain proof that it served a Notice of Ability to Return to Work, the more equitable remedy would be to remand to the WCJ for receipt of evidence regarding the Notice it actually issued on February 15, 2010. Given our discussion, we need not address this remedy issue.
Based on the foregoing, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 17th day of October, 2013, the order of the Workers' Compensation Appeal Board is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED CONCURRING OPINION BY JUDGE McCULLOUGH
I concur in the result reached by the Majority, affirming the order of the Workers' Compensation Appeal Board (Board), which upheld the order of a workers' compensation judge (WCJ) to suspend benefits payable to Joseph Lineman (Claimant). I write separately to clarify that Claimant does not challenge the effective date of the suspension, which precedes the termination of his employment by approximately six months. Because this case is distinguishable from the decisions upon which the Majority relies, I would emphasize that the effective date of the suspension of benefits is not at issue in this appeal.
Claimant suffered a work-related back injury in July 2009, and Marjam Supply Company (Employer) accepted liability by way of a notice of compensation payable (NCP). Claimant returned to work at his pre-injury wage on August 20, 2009, and Employer suspended benefits as of that date. Claimant left work on August 25, 2009, when he re-injured his back.
Employer's policy provides that employees must submit to a drug test after a work injury. If the results of the test are positive, the employee is required to enroll in a rehabilitation program at his own expense and take a re-test within 30 days. Claimant was aware of this policy. On September 2, 2009, Claimant submitted a urine sample which tested positive for marijuana. Employer and Claimant were notified of the test results.
Claimant sought to reinstate compensation and filed review and penalty petitions. However, he did not comply with the requirement of Employer's drug policy to undergo rehabilitation and re-testing. Employer scheduled an independent medical examination (IME), which Claimant underwent on October 28, 2009. In January 2010, the review and penalty petitions were resolved by an approved stipulation; the NCP was amended to include a herniated disc with root impingement, and compensation benefits were reinstated effective August 26, 2010.
On April 6, 2010, Employer discharged Claimant for failing to comply with its drug policy. On April 12, 2010, Employer filed a suspension petition alleging that work within Claimant's medical restrictions would have been made available to him in October 2009 but Claimant did not contact Employer about rehabilitation or re-testing as required under Employer's policy. Robert Mannherz, M.D., who performed the IME, testified by way of deposition that Claimant was capable of light duty work as of October 28, 2009. Robert Applebaum, Employer's manager, testified that: under Employer's drug policy Claimant was required to participate in rehabilitation and re-testing; Claimant was aware of the policy but did not comply with its terms; and Employer would have made work available to Claimant on October 29, 2009, had Claimant complied with the drug policy.
Employer also presented testimony of two other witnesses concerning the processes used to collect and test the urine sample Claimant provided for screening.
In defense of the suspension petition, Claimant testified that he did not take any drugs, that he continues to suffer pain from the work injury, and that his treating physician had not released him to return to work. Claimant presented the deposition testimony of his treating physician, who opined that Claimant remains disabled and is unable to return to work.
The WCJ resolved conflicting evidence in Employer's favor and found that Claimant was capable of returning to work on October 28, 2009, and would have been offered work within his limitations on that date but for his failure to comply with Employer's drug policy. The WCJ noted that Employer terminated Claimant's employment on April 6, 2010, based on Claimant's violation of that policy. The WCJ concluded that Employer was entitled to a suspension of benefits effective October 28, 2009. Claimant appealed to the Board, arguing that Employer failed to establish that it issued a Notice of Ability to Return to Work (NARW) as required by section 306(b) of the Workers' Compensation Act (Act) and never offered him a job. The Board affirmed. The Board explained:
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §512(3).
[I]f a claimant commits misconduct after a work injury and is properly discharged for that conduct, then he is precluded from receiving compensation for loss of earnings from the date of his termination. See Wells-Moore v. Workmen's Compensation Appeal Board
(McNeil Consumer Products Co.), 601 A.2d 879 (Pa. Cmwlth. 1992) . . . For example, in Edwards v. Workers' Compensation Appeal Board (Sear's Logistic Services), 770 A.2d 805 (Pa. Cmwlth. 2001), the Court held that where the claimant's employment was terminated pursuant to the employer's policy after he failed a drug test, his loss of earnings subsequent to the discharge was caused by his own action, not by the work injury and benefits could be suspended.(Board's opinion at 3-4) (emphasis added).
On appeal to this Court, Claimant raises three issues; specifically, Claimant contends Employer failed to prove that: (1) Claimant's discharge was unrelated to the work injury; (2) work within Claimant's medical limitations was actually available; and (3) Employer issued a NARW. With respect to these issues, I agree with the Majority that none of Claimant's arguments is persuasive.
However, although the prior decisions upon which the Majority relies support the ultimate disposition of this appeal, each is distinguishable in one or more significant respects. Importantly, none of the decisions that upheld a suspension of benefits based on a claimant's termination for misconduct involved a suspension that was effective prior to the date of a claimant's discharge. See, e.g.,: Brewer v. Workers' Compensation Appeal Board (EZ Payroll & Staffing Solutions), 63 A.3d 843, 846 (Pa. Cmwlth. 2013) (a claim proceeding wherein benefits were suspended effective the date of the claimant's discharge); BJ's Wholesale Club v. Workers' Compensation Appeal Board (Pearson), 43 A.3d 559 (Pa. Cmwlth. 2012) (a claim proceeding wherein the claimant was injured in June 2008, returned to work with no loss of earnings, and sought compensation from the date of his discharge in July 2008); Harvey v. Workers' Compensation Appeal Board (Monongahela Valley Hospital), 983 A.2d 1254 (Pa. Cmwlth. 2009) (a modification proceeding wherein the claimant was discharged in 2001, and benefits were modified in November 2006); Coyne v. Workers' Compensation Appeal Board (Villanova University), 942 A.2d 939 (Pa. Cmwlth. 2008) (a claim proceeding involving periods of employment under contracts with different employers in which we vacated and remanded for determinations as to whether the claimant's loss of earnings was due to bad faith that resulted in a decision not to renew her contract); Edwards v. Workers' Compensation Appeal Board (Sear's Logistic Servs.), 770 A.2d 805 (Pa. Cmwlth. 2001) (a claim proceeding in which benefits were suspended as of the date of the claimant's termination from employment).
Employer emphasizes the fact that it did not seek a suspension based on medical evidence but rather on Claimant's discharge for violating the drug policy. (See Employer's brief at 11, 15 ("Employer, here however, sought a suspension of compensation based on the Claimant's discharge from his employment, not medical information . . . an employer need not actually make an offer of available work if the claimant has voluntarily retired, is incarcerated, or "is discharged from his employment due to his bad faith....")
With respect to the Notice issue, the Majority quotes the Board's analysis, "In other words, any impact on his 'existing benefits' was not due to a change in his physical condition but due to the discharge that was caused by Claimant's own action, not the work injury." (Majority op. at 20, quoting Board's op. at 45.) Regarding the requirement to demonstrate an actual job offer, the Majority holds that "although Employer was required to identify an actual available position within Claimant's medical restrictions, Employer was not required to offer that available position to Claimant based on Claimant's termination for violating Employer's drug policy. Harvey [v. Workers' Compensation Appeal Board (Monongahela Valley Hospital), 983 A.2d 1254 (Pa. Cmwlth. 2009)]; Edwards [v. Workers' Compensation Appeal Board (Sear's Logistic Servs.), 770 A.2d 805 (Pa. Cmwlth. 2001)]." (Majority op. at 16.)
In a claim proceeding, the burden of proof is on the claimant, who must demonstrate not only that he has sustained a compensable injury but also that the injury continues to cause disability throughout the pendency of the claim petition. Innovative Spaces v. Workmen's Compensation Appeal Board (DeAngelis), 646 A.2d 51, 54 (Pa. Cmwlth. 1994), appeal denied, 541 Pa. 645, 663 A.2d 696 (1995). Thus, in a claim proceeding, a WCJ may issue an award of benefits for a closed period. Id.
In a suspension proceeding, the employer bears the burden of proof and must establish that the claimant no longer suffers a loss of earnings as a result of the work injury. Landmark Constructors, Inc. v. Workers' Compensation Appeal Board (Costello), ___ Pa. ___, 747 A.2d 850 (2000). Generally, the NARW required by section 306(b)(3) of the Act is a prerequisite to obtaining a modification or suspension of benefits based on a claimant's ability to return to work. Summit Trailer Sales v. Workers' Compensation Appeal Board (Weikel), 795 A.2d 1082 (Pa. Cmwlth. 2002). Under circumstances where the employee, though not fully recovered, is medically able to return to work at earnings equal to his pre-injury wage, the employer seeking a suspension is obligated to show job availability. Landmark. As the Majority correctly notes, there are exceptions to these general principles.
Compensation may be suspended upon: a return to work with residual impairment and without a loss of earnings; a refusal of reasonable medical treatment; a refusal to comply with an order for an examination or interview; incarceration following a conviction; failure to complete and return a verification form; or a voluntary withdrawal from the labor market. Section 306(b) of the Act, 77 P.S. §512; section 306(f.1)(8) of the Act, 77 P.S. §531(8); section 314 of the Act, 77 P.S. §651; section 306(a)(2) of the Act, 77 P.S. §511(2); section 311.1 of the Act, added by the Act of June 24, 1996, P.L. 350, 77 P.S. §631.1; City of Pittsburgh v. Workers' Compensation Appeal Board (Robinson), ___ Pa. ___, 67 A.3d 1194 (2013).
Although Employer obtained and presented medical evidence, Employer asserts that it was not required to provide a NAWR because section 306(b)(3) only applies where a suspension is sought based on medical evidence of a change of condition, and, in this case, Employer is not relying on medical evidence but on "Claimants discharge from employment due to his own bad faith." (Employer's brief at 12.) Employer also argues that it was not required to actually offer Claimant a job. Employer notes that the requirement to offer a claimant available work does not apply in circumstances where the claimant has voluntarily retired or is incarcerated, and argues that the requirement is also waived "where a claimant is discharged from his employment due to his own bad faith...." (Employer's brief at 15.) Accepting Employer's argument that suspension is appropriate based on Claimant's discharge for misconduct, and noting that the Board also accepted this argument, I concur with the Majority's holding that neither a NARW nor an actual job offer was required in order to support a suspension of Claimant's benefits.
The Board observed that "if a claimant commits misconduct after a work injury and is properly discharged for that conduct, then he is precluded from receiving compensation for loss of earnings from the date of his termination." (Board op. at 3) (citations omitted). --------
However, Employer cannot have it both ways. If Employer sought a suspension based on medical evidence and evidence of available work, Employer was required to provide Claimant a NARW and could not obtain a suspension of benefits prior to the date that notice was issued. If Employer relies on Claimant's discharge due to misconduct as the basis for suspension, the date of discharge would be the date that Claimant's loss of earnings was attributable to his termination from employment. Here, the suspension of benefits is based on misconduct resulting in Claimant's discharge but is not effective on the date of his discharge. Instead, the effective date of the suspension is almost six months before the termination of his employment and appears to be based on Employer's medical evidence and evidence of available work.
However, Claimant does not challenge the effective date of the suspension. Thus, I would note that whether benefits were properly suspended prior to the date of Claimant's discharge from employment is not raised or decided in this case.
/s/_________
PATRICIA A. McCULLOUGH, Judge