Opinion
No. 1152 C.D. 2013
06-13-2014
Jeffrey Sinnott, Petitioner v. Workers' Compensation Appeal Board (Temple University Hospital), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Jeffrey Sinnott petitions for review of the order of the Workers' Compensation Appeal Board (the Board) affirming the decision and order of Workers' Compensation Judge David Slom (the WCJ), which granted the modification petition of Temple University Hospital (Temple). We affirm.
In 1993, Sinnott filed a claim petition against Temple, alleging injuries resulting from exposure to radioactive materials in the workplace. In 1995, Workers' Compensation Judge Martin Burman awarded Sinnott total disability benefits, based on findings that his exposure to radioactive chemicals resulted in a cognitive dysfunction injury. Sinnott was awarded $151.67 per week in temporary total disability benefits.
"Cognitive dysfunction" describes a set of symptoms that include difficulties with memory, attention, concentration and the ability to sustain a thought over a period of time. Temple Univ. Hosp. v. Workers' Comp. Appeal Bd. (Sinnott), 866 A.2d 489, 491-93 (Pa. Cmwlth. 2005).
In 2001, Temple filed a termination petition alleging that, as of August 24, 2000, Sinnott did not have any cognitive, physical or emotional problems and had fully recovered from the work injury identified as "cognitive dysfunction." The termination petition was denied on the basis that Sinnott continued to suffer a cognitive dysfunction injury. Temple Univ. Hosp. v. Workers' Comp. Appeal Bd. (Sinnott), 866 A.2d 489 (Pa. Cmwlth. 2005).
On March 18, 2009, Temple filed a modification petition, alleging that a funded employment position was available to Sinnott as of March 12, 2009, and he had failed to respond in good faith. The position with Employment Alternatives, Inc. involved a placement at the Associated Services for the Blind as a collator located at 919 Walnut Street, Philadelphia, paying $85.50 per week. This position is approximately 10 miles from Sinnott's home and can be reached by public transportation in under an hour. Temple requested that Sinnott's weekly indemnity benefits be modified to $4.86 per week based on employment for 12 hours per week at $7.15 per hour. Before the WCJ, Sinnott submitted the deposition testimony of his treating physician, Jack Gomberg, M.D., a board-certified psychiatrist and neurologist, and Temple submitted the deposition testimonies of Christopher King, Psy.D., a licensed psychologist, and William Ford, a certified rehabilitation counselor. The parties also submitted a stipulation of undisputed facts, agreeing that the Workers' Compensation Act (the Act) applies to the claim and that Sinnott's average weekly wage at the time of injury was $93.08.
Temple and its third-party insurance administrator, Scibal Associates, requested that Employment Alternative, Inc. locate a funded employment position for Sinnott. In funded employment, the claimant works for a new employer but is paid by the time-of-injury employer. Napierski v. Workers' Comp. Appeal Bd. (Scobell Co.), 59 A.3d 57, 59 n.1 (Pa. Cmwlth. 2013).
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.1, 2501-2708.
Dr. Gomberg testified that he has been Sinnott's treating physician since 2001 and that he diagnosed Sinnott with chemical-induced persisting dementia, which is a cognitive dysfunction injury. He stated that Sinnott's treatment included a combination of supportive therapy and medication management during 40 minute appointments either conducted at his office or over the telephone. Sinnott's appointments are scheduled monthly but recently, he has been unable to make it to Dr. Gomberg's office because he has gotten lost on public transportation or his mother has refused to let him drive her car because he gets confused easily. Sinnott's medication is intended to stabilize moods and to control tendencies toward paranoid delusion and outbursts. Dr. Gomberg testified that Sinnott continues to experience short-term memory deficits, confusion, paranoia, fatigue, anergia, low self-esteem and he is easily aggravated. Dr. Gomberg noted that Sinnott was unable to do his own laundry and is unable to shop at a supermarket because the crowds aggravate him and the size of the store confuses him and, consequently, he shops at a local Wawa.
Dr. Gomberg testified that Sinnott's cognitive dysfunction was moderate, but it was his related psychiatric condition that made it impossible for him to perform productive work and that getting to a workplace would be an enormous undertaking. Dr. Gomberg opined that Sinnott would be unable to perform the collating position for two reasons. First, the repetitive nature of the job would easily frustrate him and set him off. Second, Sinnott would be unable to navigate public transportation and his mother was homebound and no longer capable of accompanying him in her car. Dr. Gomberg opined that it would be beneficial for Sinnott to work in a limited capacity, but transportation to and from the work site along with proper training and supervision would be necessary prerequisites.
Dr. King examined Sinnott on February 28, 2007, March 7, 2007, and September 5, 2008, with each session lasting 90 minutes. Dr. King reviewed medical records and conducted neuropsychological testing. Dr. King diagnosed Sinnott with deficient neuropsychological functions, with limitations that would likely affect employability. Dr. King opined that Sinnott's impairment was mild to moderate and agreed that Sinnott should continue taking his medications. Dr. King concluded that Sinnott was capable of performing simple tasks and sustaining a basic routine in a low-stress setting that did not require frequent interaction with the general public. Dr. King testified that Sinnott demonstrated mild impairment on tasks demanding rapid processing speed and higher level cognitive abilities or mental flexibility, but his memory and attentional skills were adequate. Dr. King opined that Sinnott was capable of interacting with co-workers and supervisors and he did not believe that the repetitive nature of the work would agitate Sinnott based on his ability to perform tasks during the neuropsychological testing. Dr. King admitted that he had administered the Minnesota Multiphasic Personality Inventory (MMPI), but the tests results were invalidated because Sinnott had denied having any common human problems, presented himself in the best light possible, and overstated his ability to function. Dr. King did not find any evidence that Sinnott was unable to complete the basic activities of daily living, such as meal preparation or grocery shopping. He did not find evidence that Sinnott suffered from extreme fatigue, acute depression or inadequate attention or concentration skills.
After examining Sinnott, Dr. King reviewed four job descriptions, all of which he rejected as unsuitable for Sinnott, because he would be required to interact with the public. Sinnott's self-directed test results indicated that he would be most interested in jobs that are conventional, enterprising and realistic in nature and that he would not be amenable to socially oriented jobs. Subsequently, Dr. King reviewed the collator position and approved the job, opining that Sinnott was capable of performing the job from a psychological or neuropsychological standpoint. Dr. King noted that Sinnott has exposure to the public when he shops, and he manages banking for himself and his mother and therefore, he would be able to withstand exposure to the general public during a commute to work.
Mr. Ford conducted a vocational interview with Sinnott on December 4, 2008, and generated a report dated December 23, 2008. Mr. Ford testified that during the interview he learned that Sinnott lived in Northeast Philadelphia with his mother, had a driver's license, and drove his mother's car on occasion because he did not have his own car. Sinnott was a high school graduate and possessed an EKG technician certificate. Previously, Sinnott had worked as an EKG technician, a waste disposal worker, and was injured in a lab while working in a student employment program at Temple. Sinnott has not worked since his injury in 1992. Mr. Ford testified that he relied on Dr. King's opinion that Sinnott was capable of performing simple tasks and should be able to sustain a basic routine in a low stress job setting with little interaction with the general public. Mr. Ford located a position as a collator at the Associated Services for the Blind in Center City Philadelphia, which would require Sinnott to collate pages and assemble braille books. Sinnott would alternate between sitting and standing and sometimes walking along an assembly line. He testified that the position could be tailored to Sinnott's on-site job needs and his hours could be altered to accommodate any doctor's appointments. Mr. Ford stated that the position would be available indefinitely and would only become unavailable if Sinnott was placed in the competitive labor market. Mr. Ford also testified that after Sinnott had worked at Associated Services for several months, he would meet with him and create an updated resume so that Sinnott could find a job in the competitive labor market.
Mr. Ford notified Sinnott of the available position via letter dated March 5, 2009. Mr. Ford testified that Sinnott did not appear at Associated Services for the Blind on March 12, 2009, as directed and that he received two letters from Sinnott's counsel. The first letter stated that the job description was being forwarded to Dr. Gomberg, and the second letter noted that Dr. Gomberg had not released Sinnott to return to any form of work. Mr. Ford testified that in his opinion Sinnott was capable of performing the job as a collator for 12 hours a week, at $7.15 per hour, totaling $85.80 per week before taxes. Mr. Ford stated that Sinnott would be able to take SEPTA to the job for $5.50 round trip or drive to 9th and Walnut Street, but parking was not provided by Associated Services for the Blind and the cost of parking would exceed more than $20 per day.
The WCJ credited Mr. Ford's opinion that Sinnott had an earning power of $7.15 per hour and was referred to an open position paying $85.80 per week. The WCJ credited Dr. King's opinion that Sinnott was capable of performing the collating position and rejected Dr. Gomberg's opinion to the contrary. The WCJ rejected as not credible Dr. Gomberg's opinion that Sinnott was not capable of performing the collator position. The WCJ held that Dr. King's testimony was more credible and more persuasive than the medical opinion of Dr. Gomberg. The WCJ particularly relied upon the logical manner in which Dr. King related Sinnott's ability to function in public to Sinnott's assertions regarding his day-to-day activities; his willingness to reject positions that were unsuitable in his opinion; and the neuropsychological testing performed by Dr. King and his relation of it to his opinion as opposed to the absence of testing by Dr. Gomberg. The WCJ concluded that Temple had met its burden of providing medical evidence demonstrating a change in Sinnott's condition and his subsequent referral to an open job within the occupational category for which he was released. The WCJ determined that Sinnott's weekly compensation should be modified to $4.86 because he had an earning power of $85.80 per week and had been referred to an open position, but did not appear.
Sinnott appealed to the Board, which affirmed the WCJ's decision. The Board determined that the credible testimony of Dr. King and Mr. Ford supported the WCJ's finding that the offered job and required commute are within Sinnott's medical and vocational abilities. The Board rejected Sinnott's argument that the costs and requirements of commuting to the job rendered it unproductive. The Board concluded that Sinnott's commute either by car or public transportation was reasonable and that the cost of the commute was irrelevant to determining job availability. The Board concluded that there was credible evidence of record to support a finding that the funded job offered by Temple to Sinnott was available and within his abilities. This appeal followed.
Sinnott argues that Temple did not meet its burden to prove that he could perform the requirements of the job and tolerate the commute. He asserts that he is not challenging the WCJ's credibility determinations, but rather that Dr. King's testimony did not satisfy Temple's burden of proof. Sinnott also argues that the funded employment position does not constitute productive employment.
An employer seeking modification or suspension of workers' compensation benefits based upon the availability of suitable employment must produce evidence of a referral to an open job which fits in the occupational category for which the claimant has been given medical clearance. Kachinski v. Workmen's Comp. Appeal Bd. (Vepco Constr. Co.), 532 A.2d 374, 380 (Pa. 1987). A modification of benefits is appropriate when an employer has shown that other work was actually available to the claimant which he [was] capable of obtaining. Id.
For injuries, as in this case, occurring before June 24, 1996, the extent of partial disability is measured by the loss of earning power. As of June 24, 1996, however, the definition of earning power relative to partial disability was modified by the amendments to the Act. Sladisky v. Workers' Comp. Appeal Bd. (Allegheny Ludlum Corp.), 44 A.3d 98, 105 (Pa. Cmwlth. 2012); Section 306(b) of the Act, 77 P.S. § 512.
First, Sinnott argues that Dr. King did not render an unequivocal opinion that he could tolerate the commute. Sinnott asserts that Dr. King acknowledged on cross-examination that his approval of the position was based on Sinnott's ability to perform the requirements of the job, not his ability to tolerate the commute.
Medical testimony is unequivocal as long as the medical expert, after providing a foundation, testifies that in his professional opinion he believes or thinks the facts exist. Cerro Metal Prods. v. Workers' Comp. Appeal Bd. (Plewa), 855 A.2d 932, 937 (Pa. Cmwlth. 2004). "Even if the witness admits to uncertainty, reservation, doubt or lack of information with respect to scientific or medical details, as long as the witness does not recant the opinion first expressed, the evidence is unequivocal." Id. Whether medical testimony is unequivocal is a question of law subject to plenary review. U.S. Steel Mining Co., LLC v. Workers' Comp. Appeal Bd. (Sullivan), 859 A.2d 877, 884 (Pa. Cmwlth. 2004).
On cross-examination, Sinnott's counsel asked Dr. King whether he considered only the requirements of the position itself, or whether he also considered the commute to and from the job. Dr. King responded that "ultimately it's the job duties. You know, I suppose any job, you know, involves some commute." King Notes of Testimony (K.N.T.) at 57; Reproduced Record (R.R.) at 40a. Dr. King further testified that Sinnott had told him that he didn't have a problem driving. Rather the problem was that he did not own his own car and his mother did not want him driving her car alone. Id. at 58; R.R. at 40a. When asked whether Sinnott would be able to handle a commute on crowded public transportation, he responded:
I mean, he should be capable of using public transportation. Neuropsychologically, there's no reason why he couldn't figure out a bus route or a train route. Psychologically, you know, given the stability of his psychiatric condition, you know, I wouldn't have concerns that he's going to become manic or engage in any inappropriate behavior as long as he's taking his medication, so he can certainly, you know, consider that as well if there's public transportation where he lives.Id. at 59; R.R. at 40a.
The above-quoted testimony demonstrates that on-cross examination, Dr. King unequivocally opined that Sinnott was capable of commuting to the proposed job. Dr. King opined that Sinnott had the requisite reasoning skills to accomplish a commute and he opined that his psychological condition was sufficiently stabilized by his medication to permit him to use public transportation without incident. Having reviewed Dr. King's full testimony, we conclude that Temple satisfied its burden and WCJ did not err in crediting Dr. King's unequivocal opinion.
Second, Sinnott argues that there is not sufficient evidence to support the WCJ's conclusion that he is capable of performing the collator position. Sinnott asserts that Dr. King found that his attention, concentration and memory skills were below expectations, his processing speed was deficient and he had evidenced impaired visual scanning and sequencing skills on tasks that are particularly sensitive to brain dysfunction. Sinnott argues that Dr. King's neuropsychological testing, in particular the invalidation of MMPI tests results, revealed that he is unfit to work because of behavioral/psychiatric issues. Sinnott further asserts that Dr. King's conclusions are undermined by his assertion that he is in a better position to evaluate Sinnott's capabilities than Dr. Gomberg, who unequivocally opined that he could not perform the collator position.
During his deposition, Dr. King stated that he believed that he was in a better position to evaluate Sinnott's capabilities than Dr. Gomberg, because he had examined Sinnott in person during three separate 90-minute sessions, whereas Sinnott's recent treatment with Dr. Gomberg had involved 40 minute telephone sessions and rarely involved in person treatment.
Dr. King opined that Sinnott's memory and attention skills were adequate and within normal limits, and that he had a mild neuropsychological impairment with regard to tasks that would demand rapid processing speed, the use of higher level cognitive abilities or mental flexibility. Id. at 35-36; R.R. at 34a. Dr. King concluded that Sinnott was capable of performing simple tasks and maintaining a basic routine. Dr. King testified that from a psychological and neuropsychological standpoint, Sinnott was capable of performing the collator position. Id. at 25; R.R. at 32a. Dr. King acknowledged that Sinnott had denied having any common human problems such as worries or unhappiness, which invalidated the MMPI results. However, Dr. King also repeatedly stated that he recognized that Sinnott claims to be more functionally independent than he is. Dr. King's testimony shows that he credited some of Sinnott's claims regarding his activities and abilities and rejected others.
It is the province of the WCJ to resolve the conflicts in Dr. King's and Dr. Gomberg's testimonies and to determine how much weight is to be given to each. Johnson v. Workers' Comp. Appeal Bd. (Abington Mem'l Hosp.), 816 A.2d 1262, 1268 (Pa. Cmwlth. 2003). The WCJ concluded that Dr. King's testimony was more credible and more persuasive than Dr. Gomberg's testimony. Having reviewed the record, we conclude that there is sufficient evidence of record to support the WCJ's conclusion that Sinnott was capable of performing the collator position.
Third, Sinnott argues that the WCJ's opinion was not well-reasoned because Finding of Fact No. 10 was erroneous. In Finding of Fact No. 10, the WCJ stated that he relied upon the following factors to determine that the opinion of Dr. King was more credible than the opinion of Dr. Gomberg because of (1) the logical manner in which Dr. King related Sinnott's ability to function in public and with other people to his assertions regarding his day to day activities; (2) Dr. King's willingness to reject job positions he felt were beyond Sinnott's capabilities in regards to interaction with the public; and (3) the neuropsychological testing performed by Dr. King and his relation of it to his opinions, in contrast to the absence of testing by Dr. Gomberg. WCJ's Opinion at 6; R.R. at 85a. Sinnott asserts these factors are contradictory and do not provide a valid basis for the opinion that he is capable of performing the collator position. He argues that an occasional brief trip to the bank or Wawa does not evidence an ability to function in public and it is contradictory for Dr. King to have opined that he should not work in a position that requires interaction with the general public, yet also opine that he could interact with coworkers or tolerate a commute on public transportation. Sinnott also argues that Dr. Gomberg's credentials as a board-certified psychiatrist and neurologist are superior to Dr. King's credentials as a psychologist.
Section 422(a) of the Act requires that a WCJ provide some explanation of credibility determinations with regard to conflicting deposition testimony to enable appellate review of a WCJ's decision. Amandeo v. Workers' Comp. Appeal Bd. (Conagra Foods), 37 A.3d 72, 76 (Pa. Cmwlth. 2012). A WCJ must articulate the objective rationale underlying his credibility determinations where the testimony of such witnesses is conflicting. Id. Thus, where a WCJ summarizes testimony and also objectively explains his credibility determinations, the decision will satisfy the requirements of Section 422(a). Id.
This argument is simply another attack on the WCJ's credibility findings. The three factors listed in Finding of Fact No. 10 form an articulate rationale for the WCJ's conclusion that Dr. King was more credible than Dr. Gomberg. Further, Dr. King's credentials are irrelevant because Sinnott did not object to Dr. King's qualifications during his deposition and Sinnott did not object to the methodology Dr. King used to evaluate him. Thus, the WCJ relied upon appropriate bases in determining the weight and credibility to accord to each opinion.
Sinnott also argues that the Board erred in finding that the funded employment position, which Temple offered to him, constituted productive employment when his commuting costs would have consumed a significant portion of his earnings. Sinnott asserts that the offer was not a good faith attempt to return him to productive employment because the costs of commuting would result in him making very little money or actually losing money.
Funded employment is a valid way for an employer to return an injured employee to work. Napierski v. Workers' Comp. Appeal Bd. (Scobell Co.), 59 A.3d 57, 63 (Pa. Cmwlth. 2013). This Court previously has considered non-medical factors including place of residence, geographic area, length of workday and length and cost of commute in determining whether a job is actually available. Dilkus v. Workmen's Comp. Appeal Bd. (John F. Martin & Sons), 671 A.2d 1135, 1139 (Pa. Cmwlth. 1996). In Dilkus, this Court held that a 47-mile one-hour commute to a full-time job that paid $4.50 per hour was reasonable where the claimant had reliable transportation and the vocational expert testified that it was common for persons living in the York area to travel to Lancaster for work. Id. at 1139. The Court also held the cost of the commute and low pay were irrelevant because the Workers' Compensation Act provides partial disability payments based on the difference between the earning power of the claimant and his pre-injury wage. Id. (citing Section 306(b) of the Act, 77 P.S. § 512).
Section 306(b)(1) of the Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 512(1), provides in relevant part:
For disability partial in character caused by the compensable injury or disease ... sixty-six and two-thirds per centum of the difference between the wages of the injured employe, as defined in section 309, and the earning power of the employe thereafter; but such compensation shall not be more than the maximum compensation payable.
The Board concluded that it was not unreasonable for Sinnott to commute four miles one way in less than an hour to work a three hour workday. Citing Dilkus, the Board also concluded that Sinnott's low pay compared to the expense of the commute was irrelevant. Sinnott's commute from Northeast Philadelphia to Center City Philadelphia could be accomplished by public transportation in under an hour, an extremely common commute in the region, for the cost of $5.50 per day. The Board was correct in finding that the cost of the commute and low pay were irrelevant. Thus, under the facts and law of this case, the cost of the commute and the low pay do not render the job proffered by Temple unsuitable.
The Board was incorrect in stating that Sinnott's commute was four miles. His commute would be closer to 10 miles, but would remain under one hour. --------
For all of the foregoing reasons, we are constrained to affirm.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 13th day of June, 2014, the order of the Workers' Compensation Appeal Board is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge
Thus, a claimant receiving partial disability benefits is entitled to two-thirds of the difference between his average weekly wage and his earning power.