Opinion
No. 1704 C.D. 2012
04-25-2013
Nicholas Seador, Petitioner v. Workers' Compensation Appeal Board (United Parcel Service), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Nicholas Seador (Claimant) petitions for review of an Order of the Workers' Compensation Appeal Board (Board) that affirmed a Workers' Compensation Judge's (WCJ) Decision and Order granting United Parcel Service's (Employer) Modification Petition based upon a Labor Market Survey (LMS) and modifying Claimant's workers' compensation (WC) benefits accordingly. On appeal, Claimant contends that the Board erred in affirming the WCJ's Decision granting Employer's Modification Petition because the Decision is not reasoned or based on the evidence of record. Discerning no error, we affirm.
Employer also filed a Modification Petition (IR Modification Petition) based on an impairment rating of three percent. The IR Modification Petition was adjudicated with Employer's Modification Petition seeking a modification of Claimant's WCJ benefits based on the LMS. In the same Decision granting Employer's Modification Petition based on the LMS, the WCJ granted the IR Modification Petition and modified Claimant's WC benefits from temporary total to temporary partial as of March 27, 2008. The Board affirmed the WCJ's Decision granting both Modification Petitions. In this appeal, Claimant does not challenge the granting of Employer's IR Modification Petition.
On July 25, 2005, Claimant sustained a work injury in the nature of a ruptured tendon in his right bicep for which he filed a Claim Petition for WC benefits. The Claim Petition was granted by a WCJ Decision issued May 25, 2007. (WCJ Decision, Findings of Fact (FOF) ¶ 5.) Employer filed a Modification Petition on April 25, 2008, alleging that Claimant was medically cleared to work and that a LMS showed that Claimant had earning capacity. (FOF ¶ 1.)
In support of the Modification Petition, and to establish that work was not available at Employer's facility, Employer presented deposition testimony from John Perry, M.D., Employer's medical expert, and live testimony from Mr. Mark Johnson, Employer's District Labor Relations Manager. (FOF ¶ 6, 9.) In opposition to Employer's Modification Petition, Claimant testified live before the WCJ and presented deposition and live rebuttal testimony from Mr. Howard Rhinier, a union representative. (FOF ¶¶ 8, 10, 12.)
The WCJ found the testimony of Dr. Perry and Mr. Johnson credible. (FOF ¶¶ 14-17.) The WCJ reasoned that "the opinions of Dr. Perry were unopposed by the Claimant and were substantially similar to those of Dr. Ahn." (FOF ¶ 14.) The WCJ explicitly credited Mr. Johnson's live testimony (FOF ¶ 19), emphasizing that Claimant "conceded that there is a company policy that all union employees are required to be able to lift up to 70 pounds." (FOF ¶ 20.) Dr. Perry testified that Claimant was able to return to work under a 50-pound work restriction. (FOF ¶ 6e.) During cross-examination, Dr. Perry further testified that Claimant could probably not carry 70 pounds on a repetitive basis. (FOF ¶ 6h.) Mr. Johnson testified regarding the collective bargaining agreement, which stipulated that union employees must be able to lift 70 pounds as an essential job function. (FOF ¶ 9f-9g.) According to Mr. Johnson's testimony, because of the nature of the business, and the collective bargaining agreement restrictions, Employer is unable to hire an employee with restrictions inconsistent with the 70-pound requirement. (FOF ¶ 9c-9f.)
Dr. Ahn is Employer's witness, who performed an Impairment Rating Evaluation and testified by deposition regarding Claimant's level of impairment. (FOF ¶ 13.)
Based on the credited testimony of Dr. Perry and Mr. Johnson, the WCJ found that Claimant was capable of returning to work, but under a medium-duty, 50-pound work restriction. (FOF ¶¶ 6e, 14-15.) According to a collective bargaining agreement, union employees must be able to lift and lower up to 70 pounds without assistance. (FOF ¶¶ 9f, 18a-18c.) Accordingly, Employer is unable to hire an employee with restrictions inconsistent with the 70-pound requirement. (FOF ¶¶ 18-20.) Therefore, the WCJ found that Employer did not have any positions available within Claimant's 50-pound work restriction. (FOF ¶ 18.)
In her Decision, the WCJ mislabeled the findings of fact such that two consecutive paragraphs are labeled as eighteen. (WCJ Decision at 8-9.)
On May 5, 2010, the WCJ circulated a Decision and Order granting Employer's Modification Petition. Claimant appealed to the Board, which affirmed. The Board concluded that the record contains substantial, competent evidence to support the WCJ's findings of fact and conclusions of law. (Board Op. at 6.) The Board emphasized that the WCJ is the determiner of credibility and "Claimant's contentions are more in the nature of arguing the weight of the evidence." (Board Op. at 5-6.) As such, the Board found no error in granting Employer's Modification Petition. (Board Op. at 6.) Claimant now petitions this Court for review.
Our scope of review is limited to determining whether the findings are supported by substantial evidence and whether there has been an error of law or an abuse of discretion. Folk v. Workers' Compensation Appeal Board (Dana Corp.), 802 A.2d 1277, 1278 (Pa. Cmwlth. 2002). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." City of Philadelphia v. Workers' Compensation Appeal Board (Kriebel), 612 Pa. 6, 17, 29 A.3d 762, 769 (2011). This Court has further explained the relevant standard of review:
In performing a substantial evidence analysis, this court must view the evidence in a light most favorable to the party who prevailed before the factfinder. Moreover, we are to draw all reasonable inferences that are deducible from the evidence in support of the factfinder's decision in favor of that prevailing party.
The burden of proving that a modification petition should be granted is upon the party seeking the modification of benefits. Fruehauf Corporation v. Workmen's Compensation Appeal Board (Michaels), 559 A.2d 609, 610 (Pa. Cmwlth. 1989). The four-prong test for modification petitions, laid out by our Supreme Court in Kachinski v. Workmen's Compensation Appeal Board (VEPCO Construction Co.), 516 Pa. 240, 252, 532 A.2d 374, 380 (1987), requires the following elements: (1) the employer must first produce medical evidence of a change in condition; and then (2) produce evidence of available jobs that fit within the claimant's work restrictions; (3) the burden then shifts to the claimant to show that "he has in good faith followed through on the job referral(s)[, and;] (4) [i]f the referral fails to result in a job then claimant's benefits should continue." Id. However, under Section 306(b)(2) of the Workers' Compensation Act (Act), an employer no longer needs to establish actual job referrals and instead need only show that the claimant has earning power. Allied Products and Services v. Workers' Compensation Appeal Board (Click), 823 A.2d 284, 287 (Pa. Cmwlth. 2003). Despite the flexibility afforded by Section 306(b)(2), under Kachinski an employer who has an available job, which the claimant can perform, must offer that job to the claimant. South Hills Health System v. Workers' Compensation Appeal Board (Kiefer), 806 A.2d 962, 968 (Pa. Cmwlth. 2002). Thus, this Court has previously held that,
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 512(2).
"By adopting [Section 306(b)], the [Pennsylvania] [L]egislature lowered the [] burden of proof by allowing an employer to obtain modification or suspension of benefits on evidence of earning power proved through expert testimony rather than by providing evidence that the claimant had obtained employment." Riddle v. Workers' Compensation Appeal Board (Allegheny City Electric, Inc.), 603 Pa. 74, 82 n.8, 981 A.2d 1288, 1292 n.8 (2009).
In order to prevail in seeking a modification of benefits, an employer must either: (i) offer to a claimant a specific job that it has available,
which the claimant is capable of performing, or (ii) establish "earning power" through expert opinion evidence including job listings with employment agencies, agencies of the Department of Labor and Industry, and advertisements in a claimant's usual area of employment.Allied Products, 823 A.2d at 287.
The WCJ is the exclusive fact finder in WC cases and, as such, has "exclusive province over questions of credibility and evidentiary weight." O'Neill v. Workers' Compensation Appeal Board (News Corp. Ltd.), 29 A.3d 50, 56 n.3 (Pa. Cmwlth. 2011). The WCJ is "free to accept or reject the testimony of any witness, including a medical witness, in whole or in part. As such, determinations as to witness credibility and evidentiary weight are not subject to appellate review." Id. (citations omitted).
On appeal, Claimant first argues that the WCJ's Decision is not supported by substantial evidence. Specifically, Claimant argues that he is capable of working full duty and, thus, Employer "failed to show that Claimant could not work at jobs at its own facility." (Claimant's Br. at 7.) Claimant further argues that the medical testimony presented by Employer is "contradictory at best" and that Dr. Perry testified "he would allow Claimant to work in the capacity that [Employer] alleges it mandates for its union positions." (Claimant's Br. at 16.) Claimant concludes that Dr. Perry's testimony "completely refutes [Employer's] allegation that its positions are outside the physical restrictions of Claimant's capabilities." (Claimant's Br. at 16.)
In this case, neither party disputes that Employer has met its burden of showing a change in medical condition. Rather, as a defense to Employer's Modification Petition, Claimant argues that he is more capable than Employer's medical evidence suggests and, therefore, suitable work is available with Employer. Section 306(b)(2) of the Act clearly states that "if the employer has a specific job vacancy the employe is capable of performing, the employer shall offer such job to the employe." 77 P.S. § 512(2) (emphasis added). However, this Court has previously held that an employer does not have the burden to prove the non-existence of available work at its own facility as a necessary element of a modification petition. Rosenberg v. Workers' Compensation Appeal Board (Pike County), 942 A.2d 245, 251 (Pa. Cmwlth. 2008). Rather, a claimant, in defense of a modification petition, may present evidence that, "'[d]uring the period in which the employer . . . had a duty to offer a specific job,'" the employer had a specific job vacancy that it intended to fill that the claimant was capable of performing. Id. (quoting 34 Pa. Code § 123.301(f)(2)). The burden then shifts to the employer to rebut the evidence presented by the claimant. Id.
Thus, Claimant's argument turns on whether substantial evidence exists in the record to support the WCJ's findings that: (1) Claimant was capable of returning to work only under a 50-pound work restriction; and (2) given a 50-pound work restriction, Employer did not have work available for Claimant. (FOF ¶ 18.)
Our review of Dr. Perry's testimony reveals that he unequivocally opined that Claimant could return to work under medium duty, 50-pound maximum work restrictions. (Perry's Dep. at 21, R.R. at 129a.) Dr. Perry, an orthopedic surgeon, evaluated Claimant in January 2008, and concluded that Claimant was at maximum medical improvement and could return to work on a medium duty basis. (Return to Work Physical Capabilities at 3, R.R. at 91a.) Dr. Perry testified that Claimant "still had the right biceps tendon rupture . . . [and] he doesn't have the kind of arm that would allow him to do heavy work." (Perry's Dep. at 11, R.R. at 119a.) Dr. Perry further testified, "I'm asked in these reports to come up with an amount that I think is reasonable, and I think reasonable for me and really conservative, if you will, would be a 50-pound lifting or carrying restriction." (Perry's Dep. at 21, R.R. at 129a.) During cross-examination, Dr. Perry further testified that Claimant could probably not carry 70 pounds, emphasizing that 70 pounds is "a lot of weight." (Perry's Dep. at 22, R.R. at 130a; FOF ¶ 6h.) At a modification hearing before the WCJ, Claimant testified that he could lift 70 pounds, but "could not do it repetitively." (Hr'g Tr. at 21, July 29, 2009, R.R. at 344a.) The WCJ credited Dr. Perry's testimony, in combination with Claimant's admissions, which we believe a reasonable mind "might accept as adequate to support a conclusion" that Claimant could return to work, but only under a 50-pound work restriction. City of Philadelphia v. Workers' Compensation Appeal Board (Kriebel), 612 Pa. 6, 17, 29 A.3d 762, 769 (2011).
Claimant argues that Dr. Perry contradicted his testimony when the doctor testified on cross-examination that he would allow Claimant to try working under a more forgiving work restriction. Dr. Perry's testimony, stating that if he was Claimant's physician he might let Claimant try to work outside of his work restrictions, was provided on cross-examination after Claimant's counsel provided a hypothetical scenario not supported by the facts on record. It is well-settled that a medical witness' concession given during cross-examination does not destroy the effectiveness of the witness's previous opinion; such statements go to the weight, not the competency of that opinion. Hannigan v. Workmen's Compensation Appeal Board (Asplundh Tree Expert Co.), 616 A.2d 764, 767 (Pa. Cmwlth. 1992); see also, Coyne v. Workers' Compensation Appeal Board (Villanova University & PMA Group), 942 A.2d 939, 956 (Pa. Cmwlth. 2008) (holding that a medical expert's hypothetical recommendation for physical therapy, additional testing and anti-inflammatory medication on cross-examination does not destroy her direct testimony that no objective basis exists for the pain).
Dr. Perry testified:
Q: If [Claimant] were your patient and he said, look I want to give it a try but I want this [work restriction] at 70 pounds and see if I could do it?(Perry's Dep. at 21, R.R. at 129a.)
A: Yeah, I would let him do that.
Claimant also argues that his testimony conflicts with Dr. Perry's expert opinion and "bolstered" Claimant's argument that Employer never established that Claimant could not work full duty. (Claimant's Br. at 16.) As the unburdened party, Claimant did not need to produce any expert medical evidence. However, with respect to Claimant's argument that he is capable of working "full duty," the only evidence presented by Claimant in opposition to Dr. Perry's testimony is the Claimant's subjective opinion that he is able to lift 70 pounds. "[W]here both parties present evidence, it does not matter that there is evidence in the record which supports a factual finding contrary to that made by the WCJ, rather, the pertinent inquiry is whether there is any evidence which supports the WCJ's factual finding." General Electric Co. v. Workers' Compensation Appeal Board (Myers), 793 A.2d 191, 193 (Pa. Cmwlth. 2002) (citations omitted). Here, as discussed above, such evidence does exist.
Claimant testified:
Q: Do you believe you could lift a 70 pound package?(Hr'g Tr. at 21, July 29, 2009, R.R. at 344a).
A: Sure.
Q: And you would be able to do that with the injured arm?
A: Yes, but like I said in the beginning, I could not do it repetitively.
With respect to the availability of work at Employer's facility, substantial evidence in the record supports the WCJ's finding that work was not available for Claimant at Employer's facility. (FOF ¶ 18.) At a hearing before the WCJ, Mr. Johnson testified that Employer has a defined lifting requirement, or "essential job functions," of 70 pounds without assistance. (Hr'g Tr. at 10, Apr. 22, 2009, R.R. at 274a.) Mr. Johnson also testified that, although some jobs do not require lifting 70 pounds, Employer pulls people "on a regular basis" to help keep operations moving and on schedule. (Hr'g Tr. at 11, Apr. 22, 2009, R.R. at 275a.) Mr. Johnson's testimony clearly states that the 70-pound lifting requirement applies to all union positions for which Claimant would otherwise qualify. (Hr'g Tr. at 19, Apr. 22, 2009, R.R. at 283a.) Although Mr. Rhinier and Claimant testified that Employer did hire people who could not lift 70 pounds into such positions, the WCJ specifically credited Mr. Johnson's testimony on this issue.
Mr. Johnson testified: "Well, it's not only our policy and the requirement during the application process and through the essential job functions, it's now part of the collective bargaining agreement that details out that we can require them to lift singly or by themselves up to 70 pounds." (Hr'g Tr. at 19, Apr. 22, 2009, R.R. at 283a.)
Claimant testified that specific jobs existed that he felt he is able to perform. (Hr'g Tr. at 15-19, July 29, 2009, R.R. at 338a-42a.) Claimant also testified that he has seen people in Employer's facility that cannot lift 70 pounds. (Hr'g Tr. at 35, July 29, 2009, R.R. at 358a.) Mr. Rhinier's testimony conflicted with Mr. Johnson's testimony on many issues. For example, Mr. Johnson testified that even employees that may not be required to lift heavy packages as a part of their normal job duties are regularly called to serve in that capacity as needed. (Hr'g Tr. at 11, 34, Apr. 22, 2009, R.R. at 275a, 298a.) However, Mr. Rhinier testified that Employer does not regularly shift workers from a "small bag to a sorter position" where the employee would need to lift 70 pounds. (Hr'g Tr. at 17, Sept. 23, 2009, R.R. at 378a.)
Finally, Claimant argues that the WCJ's Decision is not a "reasoned" decision under Section 422(a) of the Act. However, the reasoned decision requirement demands only that the "WCJ must articulate some objective reasoning to facilitate appellate review." Green v. Workers' Compensation Appeal Board (US Airways), 28 A.3d 936, 940 (Pa. Cmwlth. 2011). Thus, a WCJ's decision is reasoned under Section 422(a) if it permits an adequate review by the Board and appellate courts. Id. "When faced with conflicting evidence, the [WCJ] must adequately explain the reasons for rejecting or discrediting competent evidence." 77 P.S. § 834. Where a witness testifies live before the fact-finder, providing "'the advantage of seeing the witnesses testify and assessing their demeanor, a mere conclusion as to which witness was deemed credible . . . could be sufficient.'" Lewis v. Workers' Compensation Appeal Board (Disposable Products), 853 A.2d 424, 428 (Pa. Cmwlth. 2004) (quoting Daniels v. Workers' Compensation Appeal Board (Tristate Transport), 574 Pa. 61, 78, 828 A.2d 1043, 1053 (2003)). However, where conflicting testimony is provided by deposition, as in this case with respect to Dr. Perry's testimony, our Supreme Court has held that the WCJ must provide an objective basis for crediting such testimony. Id. (citing Daniels, 574 Pa. at 78, 828 A.2d at 1053). The WCJ's explanation must be more than a mere "summation of the evidence" paired with an announcement as to "which evidence he or she accepts and rejects." Id. at 429 n.10.
77 P.S. § 834. Pursuant to Section 422(a) of the Act, a "reasoned" decision is one "containing findings of fact and conclusions of law based upon the evidence as a whole which clearly and concisely states and explains the rationale for the decisions so that all can determine why and how a particular result was reached." Id. --------
Here, the WCJ's Decision does allow effective appellate review and, thus, is reasoned under the Act. The WCJ found that Employer did not have any modified duty work, which was appropriate for Claimant's limitations, available for Claimant. (FOF ¶ 18.) In so deciding, the WCJ found the testimony of Dr. Perry and Mr. Johnson credible. (FOF ¶¶ 14-18.) Where Mr. Johnson's testimony differed from the testimony of Mr. Rhinier and Claimant, the WCJ found, having witnessed their comportment and demeanor, Mr. Johnson more credible and convincing. (FOF ¶ 19.) Thus, while Claimant's and Dr. Perry's testimony may suggest that Claimant has the ability to occasionally lift up to 70 pounds, Dr. Perry's deposition testimony clearly supports that "he did not believe Claimant would be able to sustain such lifting on a repetitive basis." (FOF ¶ 6h.) Further, the WCJ explained his rationale for crediting Dr. Perry's deposition testimony, reasoning that "the opinions of Dr. Perry were unopposed by the Claimant and were substantially similar to those of Dr. Ahn." (FOF ¶ 14.)
With respect to the conflicting evidence regarding the availability of work with Employer, the WCJ provided an explanation and objective basis for crediting Mr. Johnson's testimony. (FOF ¶ 18.) Specifically, the WCJ explained that Mr. Johnson is familiar with both the collective bargaining agreement, the job duties of Employer, and the Employer's hiring practices. (FOF ¶ 18a.) The WCJ also noted that Mr. Johnson and Mr. Rhinier agree that a union contract exists requiring employees to lift up to 70 pounds at any time. (FOF ¶ 18b.) Further, the WCJ explicitly credited Mr. Johnson's testimony over that of Mr. Rhinier where their testimony differs concerning the lifting requirement. (FOF ¶ 19.) Similarly, the WCJ provided objective reasons for accepting Mr. Johnson's testimony over Claimant's testimony with respect to the availability of work within Claimant's work restrictions. (FOF ¶ 20.) The WCJ emphasized that Claimant "conceded that there is a company policy that all union employees are required to be able to lift up to 70 pounds." (FOF ¶ 20.)
For the foregoing reasons, we affirm the Board's Order.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, April 25, 2013, the Order of the Workers' Compensation Appeal Board in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge
General Electric Co. v. Workers' Compensation Appeal Board (Myers), 793 A.2d 191, 193 (Pa. Cmwlth. 2002) (citations omitted).