Opinion
No. 587 C.D. 2013
10-17-2013
Daniel Shade, Petitioner v. Workers' Compensation Appeal Board (GST AutoLeather, Inc.), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Claimant Daniel Shade petitions for review of an order of the Workers' Compensation Appeal Board (Board) that 1) affirmed the decision of the Workers' Compensation Judge (WCJ) directing Claimant to reimburse Employer GST AutoLeather, Inc., for costs that it incurred during the litigation of its modification petition; and 2) reversed the WCJ's decision awarding Employer a credit against future benefits, determining that Employer had to seek reimbursement for an overpayment of benefits from the supersedeas fund pursuant to Section 443(a) of the Workers' Compensation Act (Act), 77 P.S. § 999(a). Notwithstanding the fact that Employer prevailed in the litigation of its modification petition, Claimant argues that he prevailed on contested issues, at least in part, such that he is entitled to reimbursement for his costs pursuant to Section 440(a) of the Act, 77 P.S. § 996(a). We disagree and, accordingly, affirm.
Act of June 2, 1915, P.L. 736, added by Section 3 of the Act of February 8, 1972, P.L. 25, as amended.
Section 440(a) was added by Section 3 of the Act of February 8, 1972, P.L. 25, as amended.
In June 2003, Claimant sustained a work-related right knee strain for which he received weekly compensation benefits in the amount of $600.53, based on an average weekly wage of $900.80. He received those benefits until September 7, 2004, when they were suspended. WCJ's November 7, 2008 Decision, Finding of Fact No. 1; Reproduced Record (R.R.) at A-3. Subsequently, the description of his injury was amended and benefits reinstated in 2005. In October 2007, Claimant's disability status changed to partial.
In his October 8, 2010 decision, the WCJ incorporated the findings of fact from his November 7, 2008 decision.
In March 2007, Employer filed a modification petition alleging that work was generally available to Claimant as of January 29, 2007, and that a labor market survey indicated that he could earn between $132.50 and $336 per week. Id., Finding of Fact No. 11; R.R. at A-5. In support, Employer presented the testimony of vocational expert Carol Esing, who interviewed Claimant in July 2006 and located several jobs that she opined were within his vocational abilities. In November 2008, the WCJ denied Employer's modification petition, determining that it failed to establish that work was generally available to Claimant. In so concluding, the WCJ determined that Employer's vocational evidence was stale and not provided to Claimant in a timely manner, as evidenced by his applications to employers listed in the labor market survey and lack of job offers. Accordingly, the WCJ determined that Claimant was successful in the litigation and awarded reimbursement of litigation costs in the amount of $4374.79.
In January 2010, the Board reversed, noting that the evidence reflected that Ms. Esing prepared her report in January 2007 and that Claimant received it in February 2007. In addition, the Board rejected the WCJ's conclusion that Employer failed to establish entitlement to a modification based on a labor market survey merely because Claimant was not offered a job, emphasizing that Employer need only prove that the positions were open and available at the time the survey was conducted. In that regard, the Board noted Ms. Esing's credible testimony that the positions were open at the time of the survey and that at least several remained open after she drafted the report. In addition, it noted Claimant's credible testimony that he applied for several of those positions. Consequently, the Board remanded the matter "for the WCJ to re-open the record as necessary only for clarification of [Employer's] evidence concerning its calculations of Claimant's earning power for the four positions which the WCJ found were within Claimant's physical and vocational abilities, and for necessary findings of fact and conclusions of law, and the entry of an order granting [Employer's] Modification Petition." Board's January 29, 2010 Decision at 13; R.R. at A-21.
On remand, the WCJ found that, even though Employer's vocational expert did not testify as to a precise amount, she credibly testified that Claimant could earn between $132.50 and $336 in weekly wages. The WCJ, therefore, determined that it was reasonable to calculate Claimant's earning power as the average of that range. Accordingly, the WCJ concluded that "Claimant possesses a weekly earning power of $234.25 as of January 29, 2007, and his compensation benefits should be modified to $444.36 weekly effective January 29, 2007." WCJ's October 8, 2010 Decision, Conclusion of Law No. 3; R.R. at A-25. In addition, the WCJ determined that, because Claimant ultimately was not successful in the litigation of the underlying modification petition, he was not entitled to reimbursement of costs as initially ordered in November 2008. Finally, noting that Employer was "entitled to a credit for the difference between total disability paid to Claimant and the modified rate between January 29, 2007 and the date of the first payment of the new partial rate pursuant to the WCJ's order[,]" the WCJ directed that "[a]ny costs reimbursed to Claimant under the 11/7/2008 Decision [i.e., the $4374.79] shall be repaid to [Employer]." Id., Conclusion of Law No. 4; R.R. at A-25.
In a March 2013 opinion, the Board affirmed in part and reversed in part. It affirmed the decision of the WCJ directing Claimant to reimburse Employer for costs, emphasizing that, even though the benefit amount awarded was less than Employer sought, "Claimant contested the Modification Petition and the WCJ found for [Employer], and therefore against Claimant." Board's March 11, 2013 Opinion at 4. Noting that the contested issue was whether Claimant had earning power and, if so, the extent of that power, the Board concluded that he did not prevail, even in part, because the WCJ ultimately arrived at an earning power by averaging the range identified by Employer's vocational expert. Thus, the Board affirmed the order of the WCJ requiring Claimant to reimburse Employer for the $4374.79 in litigation costs it paid pursuant to the November 2008 award. In addition, the Board reversed the WCJ's decision awarding Employer a credit against future benefits, determining that Employer had to seek reimbursement for an overpayment of benefits from the supersedeas fund. Claimant's timely petition for review to this Court followed.
Page four of the Board's March 11, 2013 decision was inadvertently omitted from Claimant's reproduced record. The entire decision can be found in Appendix D to Employer's brief.
In order for a claimant to recover litigation costs, he must first show that he prevailed in whole or in part on an issue that was actually contested before the WCJ. Dep't of Transp. v. Workers' Comp. Appeal Bd. (Clippinger), 38 A.3d 1037, 1050 (Pa. Cmwlth. 2011). In relevant part, Section 440(a) of the Act provides as follows:
(a) In any contested case where the insurer has contested liability in whole or in part, including contested cases involving petitions to terminate, reinstate, increase, reduce or otherwise modify compensation awards, ... the employe ... in whose favor the matter at issue has been finally determined in whole or in part shall be awarded, in addition to the award for compensation, a reasonable sum for costs incurred for attorney's fee, witnesses, necessary medical examination, and the value of unreimbursed lost time to attend the proceedings ....
In the present case, the Board cited Holmes v. Workmen's Compensation Appeal Board (Pisani Brothers, Inc.), 485 A.2d 874 (Pa. Cmwlth. 1984), in support of its decision that Claimant did not prevail, even in part. In Holmes, the employer sought to modify the claimant's benefits from total to partial disability based on the availability of suitable work, which was the contested issue. The employer established that the claimant was medically capable of performing a gas station attendant job and that it was available. This Court determined that "[t]he fact that the referee found [a higher paying] job not suitable does not entitle Holmes to an award of costs under Section 440, notwithstanding the possible further reduction of benefits which may have resulted due to the higher salary associated with the [other] job." Id. at 876. Noting that the employer was successful in its effort to modify the claimant's benefits from total to partial disability based on the gas station job, we reasoned that Holmes did not prevail in part because the contested issue of the availability of suitable work was not resolved in his favor.
While Claimant acknowledges that Holmes is instructive, he maintains that his case is distinguishable in that Holmes involved specific job referrals, not a labor market survey. In addition, he points out that while the contested issue of availability of suitable work was not resolved in Holmes' favor, the WCJ here modified his benefits using a lower earning power than the highest one identified by Employer's vocational expert, thereby resulting in a practical, quantifiable benefit to him analogous to that in Minicozzi v. Workers' Compensation Appeal Board (Industrial Metal Plating, Inc.), 873 A.2d 25 (Pa. Cmwlth. 2005). In Minicozzi, the employer sought to modify the claimant's benefits based on a job that it offered him in September 2002. This Court agreed that the claimant was entitled to litigation costs, noting that he was able to prove that the employer had not offered the job until March 2003, thereby successfully delaying the modification date for six months and achieving a financial benefit for himself. We reject Claimant's position and find the present case to be more analogous to Holmes than to Minicozzi.
As an initial matter, neither Claimant nor Holmes prevailed on the merits. In addition, the fact that Holmes involved specific job referrals and not a labor market survey is irrelevant. The contested issue here was whether Claimant had earning power and, if so, the extent of that power. The WCJ based the earning power determination on Employer's evidence, specifically rejecting the opinion of Claimant's expert that the earning capacity developed by Employer's expert was inaccurate. WCJ's November 10, 2008 Decision, Finding of Fact No. 15; R.R. at A-6. Accordingly, even though the WCJ calculated Claimant's earning power as the average of the range identified by Employer's expert, thus mitigating the effect of choosing the highest earning power proffered, the WCJ nonetheless credited Employer's evidence thereby causing it to prevail on the disputed earning power issue. See Clippinger, 38 A.3d at 1049-50 (claimant prevailed, in part, on his penalty petition as it related to employer's failure to pay for his prescriptions where the WCJ credited his testimony that employer did not require medical reports in all instances for payment of services and claimant submitted receipts for medications for which he sought reimbursement.)
Moreover, even though Claimant enjoyed some financial benefit, that benefit was not the result of his effort to defend against Employer's modification petition. Generally, where a change in a claimant's favor is not the result of his effort to defend against that change, he is not entitled to an award of litigation costs. See Bentley v. Workers' Comp. Appeal Bd. (Pgh. Bd. of Educ.), 987 A.2d 1223, 1230 (Pa. Cmwlth. 2009) (even though modification went into effect at a later date, no costs awarded to claimant where Board made a technical correction to the date to conform to employer's evidence.) Accordingly, notwithstanding any financial benefit, Claimant did not prevail, even in part.
Claimant next argues that he prevailed on a contested issue, at least in part, because the Board directed that Employer had to seek any overpayment of benefits from the supersedeas fund and not from him. We disagree. The litigation costs at issue in the present appeal were only those ordered in November of 2008 for the proceedings before the WCJ when he first denied Employer's modification petition, long before the supersedeas issue arose. Reimbursement of those specific costs was the subject of the Board's order currently under review and, as explained above, Claimant did not prevail in that contest, even in part. Any issue regarding costs for subsequent proceedings, such as the appeal to the Board where the supersedeas issue was contested, is simply not before us.
In its March 2013 decision, the Board noted that Employer requested supersedeas, that its request was denied, that Employer continued to pay Claimant and that the WCJ determined that Employer overpaid. When supersedeas is denied, in whole or in part, and it is later determined that compensation was not, in fact, payable, an employer is entitled to be reimbursed from the supersedeas fund pursuant to Section 443(a) of the Act. An employer may not recoup the overpayment of benefits from the employee. Rogers v. Workmen's Comp. Appeal Bd. (Strouse/Greenberg & Co.), 565 A.2d 209, 211-12 (Pa. Cmwlth. 1989). --------
Accordingly, we affirm.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 17th day of October 2013, the order of the Workers' Compensation Appeal Board is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge