Opinion
No. 206 C.D. 2013
11-18-2013
St. Luke's Hospital, Petitioner v. Workers' Compensation Appeal Board (Arthofer), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
St. Luke's Hospital (Employer) petitions for review of the Order of the Workers' Compensation Appeal Board (Board) that affirmed a decision of the Workers' Compensation Judge (WCJ) denying Employer's Petition to Suspend and/or Modify (Petition) the workers' compensation (WC) benefits of Angela Arthofer (Claimant) under the Workers' Compensation Act (Act). Because Employer did not meet its burden to prove that Claimant's loss of earnings was no longer related to her work-related injury, and the WCJ's decision is reasoned, we affirm.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1 - 1041.4, 2501-2708.
Claimant, a registered nurse, sustained a work-related injury to her right wrist while lifting a patient on November 18, 2008. (WCJ Decision, Findings of Fact (FOF) ¶¶ 1, 7.) Employer accepted liability through the issuance of a Notice of Compensation Payable and Claimant initially received compensation for total disability. (FOF ¶¶ 2-3.) In February 2009, Claimant returned to work with a loss of earnings documented by a series of Supplemental Agreements. (FOF ¶ 3.) "Total disability precipitated by surgery recurred as of April 29, 2009." (FOF ¶ 4.) On October 6, 2009, Dr. Stephen Cash, a board certified orthopedic surgeon, conducted an independent medical examination of Claimant and concluded that Claimant was not fully recovered, but was capable of returning to work with restrictions. (Cash's Dep. at 17, R.R. at 126a.) The medical testimony of Dr. Cash is unchallenged. (FOF ¶ 7.) On December 29, 2009, Employer advised Claimant "by letter that her employment would terminate as of January 23, 2010 unless she returned to work in some capacity." (FOF ¶ 5; Letter from Employer to Claimant (December 29, 2009), R.R. at 91a.) Employer also sent Claimant Notices of Ability to Return to Work dated December 23, 2009 and February 3, 2010. (Notice of Ability to Return to Work, December 23, 2009, R.R. at 210a; Notice of Ability to Return to Work, February 3, 2010, R.R. at 212a.) Claimant "promptly responded by letter . . . indicating her willingness to return to work within her . . . restrictions." (FOF ¶ 6.)
In his deposition presented by Employer, Dr. Cash acknowledged that Claimant had undergone "an arthroscopic repair of the TFCC tear and shrinkage of the ulnar intrinsic ligaments in the wrist" (a torn ligament in the wrist) on April 23, 2009 that was a result of the work injury. (Cash's Dep. at 14, R.R. at 126a.)
Employer stated that its policy provides a maximum of 270 days for medical disability leave, at which time employment is terminated. (Letter from Employer to Claimant (December 29, 2009), R.R. at 91a.)
On March 7, 2010, Claimant applied online for an open registered nurse position with Employer. (FOF ¶ 8.) On the application was a question regarding whether Claimant had "ever been involved in a founded or indicated report of abuse or neglect of children or adults under the laws of Pennsylvania or any other jurisdiction"; in response, Claimant checked the "No" box. (FOF ¶ 8.) If an applicant checked the "No" box, there was no opportunity or space on the online application for further explanation. (FOF ¶ 15c; Employment Application at 4, R.R. at 82a.)
Laurie Gates, Manager of Employer's Urgent Care and Occupational Health Program (Manager), reviewed Claimant's online application, found it suitable, and asked her to come in for an interview for a part-time job that was within her restrictions. (FOF ¶ 17c.) Manager considered Claimant to be the best fit for the department and referred her application to Leann Viglianti, Coordinator for Nurse Recruitment (Nurse Recruiter). (Nurse Recruiter's Dep. at 18, 20, R.R. at 167a.) Nurse Recruiter telephoned Claimant on March 30, 2010 regarding the part-time position and asked Claimant to stop by the office to sign the application and fill out some forms to process the background clearances. (Nurse Recruiter's Dep. at 30, 32, R.R. at 170a.) During this telephone call, Claimant shared with Nurse Recruiter that Claimant had been told that she had been listed on a child abuse register (ChildLine), with a different date of birth and was not sure if her name was still listed at the present time. (Nurse Recruiter's Dep. at 33, 35, R.R. at 170a-71a.)
ChildLine is defined, in relevant part, as "[a]n organizational unit of the Department [of Public Welfare] which operates a Statewide toll-free system for receiving reports of suspected child abuse established under [S]ection 6332 of the [Child Protective Services Law, 23 Pa. C.S. § 6332] (relating to establishment of a Statewide toll-free telephone number), refers the reports for investigation and maintains the reports in the appropriate file." 55 Pa. Code § 3490.4.
Claimant arrived at Employer's office on April 12, 2010 to sign her application and release forms. At that time, Claimant wrote by hand onto her application that her name had appeared on the ChildLine register, she was not sure if her name remained on it, and she believed it may have been a mistake. (FOF ¶ 9.) Thereafter, Employer received Claimant's Pennsylvania Child Abuse History Clearance form showing that she was listed as a perpetrator on three reports dated April 17, 2001, and setting forth the status of those reports as "indicated." (Pennsylvania Child Abuse History Clearance, R.R. at 120a.) On May 12, 2010, Employer requested that Claimant provide details of her version as to why her Pennsylvania Child Abuse History Clearance form stated that she was listed in the ChildLine register as a perpetrator on three reports. (FOF ¶ 10; Letter from Employer to Claimant (May 12, 2010), R.R. at 99a.)
Section 6303 of the Child Protective Services Law defines "indicated" and "founded" reports as:
"Indicated Report"- A child abuse report made pursuant to this chapter if an investigation by the county agency or the Department of Public Welfare determines that substantial evidence of the alleged abuse exists based on any of the following:
(1) Available medical evidence[;]
(2) The child protective service investigation[;]
(3) An admission of the acts of abuse by the perpetrator.
23 Pa. C.S. § 6303.
"Founded Report" - A child abuse report made pursuant to this chapter if there has been any judicial adjudication based on a finding that a child who is a subject of the report has been abused, including the entry of a plea of guilty or nolo contendere or a finding of guilt to a criminal charge involving the same factual circumstances involved in the allegation of child abuse.
Claimant responded by letter, dated May 17, 2010, stating that her ex-husband had been investigated on two occasions: in 2001 after Claimant filed a complaint against him for abusing her minor child, and in 2007 after another of her minor children made allegations of abuse against him. (Letter from Claimant to Employer (May 17, 2010) at 1, R.R. at 102a.) Claimant responded further that, during the 2007 investigation, the caseworker told Claimant that her name was on ChildLine but the registry files had conflicting information regarding whether Claimant was listed or not since one report was expunged and another remained on file. (Claimant's Letter to Employer (May 17, 2010) at 1, R.R. at 102a; FOF ¶ 11.) Claimant also attached documentation to her response which included a copy of a juvenile court dependency adjudication (Adjudication) finding that her ex-husband had indecent contact with her minor child in 2001 and stating that she was not the original perpetrator of the child abuse or an active participant. (Adjudication, R.R. at 104a.)
Claimant later testified that when a caseworker became involved in 2007 with an abuse matter involving Claimant's minor child and ex-husband, the caseworker ran the registry check of her family and told Claimant that Claimant's name was listed in the register and her ex-husband's was not, but the caseworker believed Claimant's listing was a mistake because it was next to her ex-husband's birth date. (Hr'g Tr. at 16-17, R.R. at 43a-44a.) She was told by an attorney that it would cost $5,000 - $10,000 to expunge her name from the register, and since she did not have the money she did not pursue it. (FOF ¶ 11.)
On May 26, 2010, Employer replied by letter that Claimant's listing on ChildLine "adversely affects [her] suitability for employment" with Employer because "persons named [on ChildLine] may not be hired in child care services according to the Pennsylvania Child Protective Services Law [(CPSL)]" and that, when she checked the "No" box on her online application, this constituted a lack of honesty and openness; consequently, Employer "terminated [Claimant's] employment effective May 25, 2010." (Letter from Employer to Claimant (May 26, 2010), R.R. at 121a.) On June 8, 2010, Employer filed the instant Petition on the grounds that it had offered Claimant a specific position and she voluntarily withdrew from the workforce. (Petition at 1, R.R. at 1a; FOF ¶ 14.) Hearings before the WCJ ensued.
23 Pa. C.S. §§ 6301 - 6386.
On September 21, 2010, in the presence of the WCJ and in support of its Petition, Employer presented the deposition testimony of the following employees: Manager; Nurse Recruiter; Barbara Flandorffer, Director of Staffing Resources and Compliance (Director); and Andy Seidel, Assistant Vice President (Vice President). Claimant testified on her own behalf during the hearings.
Before the WCJ, the parties stipulated that the Pennsylvania Child Abuse History Clearance form only indicated that the reports were "indicated," and not "founded," and that "[t]he report clearly indicate[d] that the events happened in 2001." (FOF ¶ 12.) With respect to the events surrounding Claimant's application for employment and her listing on the ChildLine register, the WCJ found Claimant's testimony "completely credible." (FOF ¶ 15.) The WCJ found the factual testimony of Employer's witnesses credible except to the extent the testimony included legal opinion. (FOF ¶ 21.) The WCJ concluded that Employer failed to produce credible evidence that Claimant was actually offered employment because the potential offer was never finalized; voluntarily retired from the labor force; committed any crime or abused any child; was ever listed as a perpetrator in a "founded" report of child abuse; was ever listed as a perpetrator in a founded report of child abuse "committed within the five year period immediately preceding verification;" or falsified her application. (WCJ Decision, Conclusions of Law (COL) ¶¶ 2-7.) The WCJ further concluded that Pennsylvania law did not bar Employer from hiring Claimant. (COL ¶ 8.) Specifically, the WCJ reasoned that
[t]his is a most unusual case. It is undisputed that [C]laimant was injured at work, had surgery, yet remains ready, willing and able to go back to work with very modest restrictions against the heaviest lifting. [E]mployer, at least at the operational level, reviewed [C]laimant's history with [E]mployer, interviewed [C]laimant and clearly wanted to give [C]laimant a job, which was open and available. Instead of bringing [C]laimant back to work, [E]mployer fired her.
Why? Ten years ago [Claimant's], now ex-husband, sexually abused [Claimant's] [minor child]. This happened three weeks after they were married. [Claimant] called the police and filed a criminal complaint. The former husband is long since out of the picture. [C]laimant remains in custody of her children. [C]laimant was never charged or convicted of any crime. She never abused a child. No one claims she has. Her name appears on a list. A law to protect children bars childcare services and similar organizations from hiring people who are listed as ". . . the perpetrator of a founded report of child
abuse committed within the five year period immediately preceding the verification based on this section." [Section 6344(c) of the CPSL, 23 Pa. C.S. § 6344(c).] In an abundance of corporate caution, the [E]mployer . . . has denied employment to [C]laimant for circumstances of more than ten years ago in which [C]laimant did nothing wrong. So we are left with this issue. May an injured worker be denied compensation for actions they did not commit nearly eight years before the work injury and nearly ten years before [E]mployer considered offering [C]laimant another job?(WCJ Decision at 11 (emphasis in original).) Accordingly, the WCJ denied the Petition and ordered Employer to continue to pay Claimant WC benefits as required by the Act. Employer appealed to the Board.
Upon review, the Board determined that the WCJ did not err by concluding that Claimant was not barred from employment by the CPSL and, therefore, Claimant's loss of earnings was the result of her work-related injury. (Board Op. at 3-5.) The Board stated that the "plain language of the statute requires a status of 'founded' and that the abuse was committed within the five years immediately preceding the verification." (Board Op. at 5 (citing Section 6344(c) of the CPSL, 23 Pa. C.S. § 6344(c)).) The Board also determined that the WCJ did not err in concluding that Claimant's loss of earnings was not attributable to her own misconduct and/or bad faith in completing Employer's application for employment. (Board Op. at 5-7.) The Board discerned that no error occurred because the WCJ, having complete authority over credibility and evidentiary weight, credited Claimant's testimony that she did not willfully fail to disclose the "indicated" ChildLine report and, therefore, her loss of earnings or earning capacity was not attributable to any misconduct or bad faith in completing the application for employment. (Board Op. at 6-7.) The Board also noted that the WCJ concluded that Employer did not produce credible evidence that Claimant falsified the employment application. (Board Op. at 7.) Thus, the Board affirmed the WCJ's decision. Employer now petitions this Court for review.
Specifically, Section 6344(c) provides grounds for not hiring a potential employee where "the applicant is named in the central register as the perpetrator of a founded report of child abuse committed within the five-year period immediately preceding verification." 23 Pa. C.S. § 6344(c)(1).
"Our review is limited to determining whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence and whether constitutional rights were violated." Moberg v. Workers' Compensation Appeal Board (Twining Village), 995 A.2d 385, 388 n.1 (Pa. Cmwlth. 2010).
On appeal, Employer argues that it was entitled to a suspension of Claimant's WC benefits because Claimant's loss of earnings is no longer the result of her work injury. In support of this argument, Employer first asserts that, notwithstanding the provisions of the CPSL, its internal policies prohibit the hiring of any individual listed on the ChildLine register regardless of whether the individual was involved in a founded or indicated report. Employer contends that it presented credible evidence that it adopted a policy in January 2009 to conform with the 2008 amendments to the CPSL, which requires all hospital personnel to undergo a child abuse history check. Employer asserts that the WCJ ignored the fact that it offered Claimant a position in its Occupational Medicine facility, which is also an urgent care facility, which would serve children. Employer argues further that it also presented credible evidence that all of its employees are subject to the child abuse history check and that it is against its general hiring practice/policy to hire anyone whose name appears on the ChildLine register. Employer contends that its policy is enforced against all employees and this fact proves that it was not used against Claimant as a pretext for terminating her. In short, Employer's position is that Claimant can never meet its hiring requirements no matter what position is offered to her because her name is listed on the ChildLine register; therefore, her WC benefits should be suspended.
"It is well-settled that [a] work-related disability, once established, is presumed to continue until proven otherwise." Erisco Industries, Inc. v. Workers' Compensation Appeal Board (Luvine), 955 A.2d 1065, 1068 (Pa. Cmwlth. 2008). When an employer attempts to suspend the benefits of a partially disabled employee, the employer "must establish either that work within the claimant's restrictions was available or that the claimant's disability was caused by something other than the work-related injury." Id. An "employer can meet this burden by demonstrating that suitable work was available or would have been available but for the claimant's wrongful conduct or circumstances which merit allocation of the consequences of the discharge to the claimant, such as the claimant's lack of good faith." Id.
We begin with a review of Employer's January 2009 policy entitled "St. Luke's Hospital & Health Network Policy and Procedure for Criminal and Child Abuse History Clearance" (2009 Policy). (2009 Policy, R.R. at 95a.) The 2009 Policy applies to all persons employed or transferring after July 1, 2008 and requires that such persons, "who hold a child-care position must have documentation of an acceptable Child Abuse History Clearance." (2009 Policy at 1, R.R. at 95a.) "Child-care position" is defined in the 2009 Policy as "any position with a 'significant likelihood of regular contact with children in the form of care, guidance, supervision or training.'" (2009 Policy at 1, R.R. at 95a.) Employer contends that it presented testimony that the position Claimant applied for in its Occupational Medicine facility was a child-care position because this facility was also an urgent care facility, "which would serve children." (Employer's Br. at 22.) However, the record does not support Employer's assertion. Employer did not present any direct evidence or testimony that the position offered to Claimant was a "child-care position" as defined by its 2009 Policy. While Manager testified that the Occupational Medicine facility treats "people that walk through the door with illnesses," (Manager's Dep. at 6, R.R. at 164a), there was no testimony by Manager or Employer's other witnesses that this facility treated children on a regular basis or that Claimant's duties required her to have "regular contact with children in the form of care, guidance, supervision or training." (2009 Policy at 1, R.R. at 95a.) In addition, the job description for the position did not describe or classify it as a "child-care position" within the meaning of Employer's 2009 Policy. (Job Description, R.R. at 73a.) Accordingly, Employer's contention that Claimant's benefits should have been suspended because its 2009 Policy prohibited Claimant's hiring is not supported by the evidence.
Employer also contends that Claimant's WC benefits should have been suspended because she "violated" Employer's 2009 Policy by appearing on the ChildLine register. (Employer's Br. at 17.) However, Employer's 2009 Policy merely establishes an eligibility criterion for new or continuing employment - it is not something Claimant can either comply with or violate. An employee or prospective employee does not "violate" a policy, in other words, act contrary to it, by his or her inability to satisfy it. For this reason, Employer's argument that the WCJ erred in denying Employer's Petition because of Claimant's alleged "violation" of Employer's 2009 Policy is not persuasive.
Employer also contends that it has a general policy of not hiring anyone listed on the ChildLine register, however, the record again does not support Employer's assertion that such policy prohibited it from hiring Claimant. Vice President testified that Employer cannot hire or transfer anyone once it comes to Employer's attention that the individual is on the ChildLine register. (Vice President's Dep. at 83, R.R. at 183a.) Vice President stated that Employer's "policy is, if someone shows up on the registry, we just don't plain process them further." (Vice President's Dep. at 88, R.R. at 184a.) However, Employer did not offer, or cite to, any documentary evidence setting forth the details of Employer's general policy, as it did with its 2009 Policy, to support the Vice President's statement. Moreover, when Employer learned that Claimant was listed on an indicated report on ChildLine, it did not immediately terminate her employment. Instead, Employer requested that Claimant "kindly provide details surrounding [the indicated reports] with [her] version of what had happened." (Letter from Employer to Claimant (May 12, 2010), R.R. at 99a.) Employer further advised Claimant that once it received the requested information, it would notify her as to its decision "whether any of this matter adversely impacts your suitability for the position in question." (Letter from Employer to Claimant (May 12, 2010), R.R. at 99a.) Notably, there was no mention of Employer's policy in its May 12, 2010 letter to Claimant regarding not hiring or transferring anyone listed on the ChildLine register regardless of what position Claimant was seeking. In addition, Director testified that she accepted Claimant's explanation as to why she was listed on the ChildLine register. (Director's Dep. at 68, R.R. at 179a.) Accordingly, we also reject Employer's contention that Claimant's WC benefits should have been suspended because its general policy of not hiring or transferring individuals listed on the ChildLine register prohibited Claimant's hiring.
Whether Claimant's loss of wages is due to a "violation" of Employer's 2009 Policy or its general policy is a question separate and distinct from whether the registered nurse position with Employer was even available to Claimant in light of Employer's policies. See Kachinski v. Workmen's Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987) (placing burden on employer to prove job availability in modification petition); Karpulk v. Workers' Compensation Appeal Board (Worth and Co.), 708 A.2d 513 (Pa. Cmwlth. 1998) (discussing relevant considerations in determining whether referred job is actually available to claimant). However, the issue of job availability is not specifically raised in this appeal, was not addressed by the Board below, and is not necessary to our determination.
Next, Employer argues that Claimant's conduct in falsely completing the job application failed the requisite standard of good faith warranting her termination, and that the WCJ's finding that Claimant did not falsify the job application is not supported by substantial evidence. Citing Virgo v. Workers' Compensation Appeal Board (County of Lehigh-Cedarbrook), 890 A.2d 13 (Pa. Cmwlth. 2005), Harvey v. Workers' Compensation Appeal Board (Monongahela Valley Hospital), 983 A.2d 1254 (Pa. Cmwlth. 2009), and Myers v. Workmen's Compensation Appeal Board (C.W. Wright Construction Company), 657 A.2d 129 (Pa. Cmwlth. 1995), Employer argues that a claimant's WC benefits may be suspended where a claimant is involuntarily discharged due to specific instances of wrongful conduct for reasons unrelated to her work injury.
In Virgo, Harvey, and Myers there were specific findings supported by substantial evidence that the claimants' loss of earnings was not due to their work- related injuries, but instead due to the claimants' conduct, such as the inability to obtain the proper licensing, failure to carry out assigned work responsibilities, or irregularities associated with the administration of narcotics. In Virgo, we examined the precise standard an employer must meet to show a claimant's "lack of good faith," or bad faith, underlying a discharge following a work-related injury. Noting that "[e]mployer always had the burden of establishing 'lack of good faith' because there never had been a formal suspension of [c]laimant's benefits," this Court stated that "'[i]t is well settled, of course, that, once established, disability is presumed to continue until proven otherwise.'" Virgo, 890 A.2d at 18 (quoting Pappans Family Restaurant v. Workers' Compensation Appeal Board (Ganoe), 729 A.2d 661, 665 (Pa. Cmwlth. 1999)). This Court observed that, because of this presumption, "it was the [e]mployer who had the burden to establish either: (1) that there was work available within the claimant's restrictions; or (2) that the claimant's disability was caused by something other than his work-related injury." Id. at 19. This Court then examined the question of "what is 'lack of good faith,' i.e., 'bad faith' on the part of a claimant, so as to allocate the consequences of his or her discharge to him or her." Id. We held that "the stricter willful misconduct standard is not the standard to determine 'bad faith' in the context allocating fault in a workers' compensation case." Id. However, we recognized that "some 'bad faith' willful misconduct on the part of the claimant that caused the discharge has to be established or benefits will not be suspended or will be reinstated." Id.
In Myers, the claimant was originally hired in 1991 on the condition that he obtain a commercial driver's license (CDL) within thirty days. Myers, 657 A.2d at 130. Before thirty days elapsed, the claimant suffered a work-related injury and collected benefits until he returned to a light duty flagman position about ten months later. Id. Upon return to light duty work, the claimant was again informed that he was required to obtain the CDL; however, the employer soon learned that the claimant had a glass eye that prevented him from obtaining the CDL. Id. The employer, who did not know about the claimant's glass eye when he was originally hired, discharged the claimant because it prevented him from obtaining the CDL, a condition of continuing employment that existed at the time the claimant was originally hired. Id. The WCJ found that the reason for the claimant's termination, i.e., that he could not qualify for employment that required a CDL that he could never obtain, was, therefore, for cause. Id. at 131. This Court affirmed the WCJ and Board decisions granting a suspension petition as a modification for partial disability benefits, concluding that the claimant's inability to obtain a CDL was the sole fault of the claimant. Id. at 132.
In Virgo, cross-petitions for reinstatement and suspension were filed when a nurse assistant, who was working light duty after a work-related injury, was ultimately discharged as a result of her "failure to carry out her work responsibilities in good faith as evidenced by two unsatisfactory annual performance evaluations." Virgo, 890 A.2d at 15. Because the WCJ's findings that the "[c]laimant's discharge was not related to her work injury, but was related to her conduct at work, and that [the] [c]laimant's loss of earnings was the result of her misconduct," were supported by substantial evidence, we concluded that the employer met its burden of proving specific instances of wrongful conduct by the claimant that were allocated to the claimant's fault and bad faith that justified the granting of the suspension petition. Id. at 17, 19-20.
In Harvey, the WCJ found that the claimant was discharged from her employment as a result of her willful misconduct. The claimant, a registered nurse, sustained work-related injuries when she was involved in a motor vehicle accident while leaving her employer's parking lot when she failed to make a left turn to exit a gate and drove over an embankment. Harvey, 983 A.2d at 1255. The WCJ granted the claimant's claim petition after determining that her injuries were caused in significant part by the employer's lack of a barrier around the parking lot. Id. However, in reviewing the employer's modification petitions, the WCJ also found that the claimant was properly discharged for reasons unrelated to her work injury and the Board, affirming the WCJ, "specifically determined that [the] [c]laimant was properly discharged due to irregularities associated with her administration of narcotics." Id. at 1255-56.
In contrast to Virgo, Harvey, and Myers, in which the employers did meet their burdens, here the WCJ found that Employer did not meet its burden to prove that Claimant falsified her application or completed it in bad faith. Our review of the record in this matter reveals that the WCJ's findings are supported by substantial evidence.
It is axiomatic that the appellate role in a WC case "is not to reweigh the evidence or to review the credibility of the witnesses." Bethenergy Mines, Inc. v. Workmen's Compensation Appeal Board (Skirpan), 531 Pa. 287, 293, 612 A.2d 434, 437 (1992). The appellate court must simply determine whether the WCJ's findings have the requisite measure of support in the record as a whole. Id. "[T]he WCJ is the ultimate fact finder whose findings, if supported by substantial evidence, must be accepted." Vazquez v. Workmen's Compensation Appeal Board (Masonite Corp.), 687 A.2d 66, 68 n.5 (Pa. Cmwlth. 1996). Substantial evidence is "'such relevant evidence which a reasonable mind might accept as adequate to support a finding.'" Myers, 657 A.2d at 131 (quoting York Terrace/Beverly Enterprises v. Workmen's Compensation Appeal Board (Lucas), 591 A.2d 762, 764 n.5 (Pa. Cmwlth. 1991)). Substantial evidence must also be "adequate to support [the] conclusion." City of Philadelphia v. Workers' Compensation Appeal Board (Kriebel), 612 Pa. 6, 17, 29 A.3d 762, 769 (2011). Moreover, "[t]he substantial evidence test will fail only when it is clear that the supporting evidence is so inadequate that findings based upon it become mere conjecture." Vazquez, 687 A.2d at 68 n.5. "In performing a substantial evidence analysis, this Court must view the evidence in a light most favorable to the party who prevailed before the fact finder." General Electric Co. v. Workers' Compensation Appeal Board (Myers), 793 A.2d 191, 193 (Pa. Cmwlth. 2002). "[W]e are to draw all reasonable inferences which are deducible from the evidence in support of the factfinder's decision in favor of that prevailing party." Id.
Nurse Recruiter testified that, when she called Claimant about the suitable job, Claimant "shared with [her] that in the past, there had been a report run that she was listed on the child abuse registry," that Nurse Recruiter did not remember the person's name who told Claimant this, but "[the name] that was on the list didn't have the same date of birth and [Claimant] thought it had been corrected." (Nurse Recruiter's Dep. at 33, R.R. at 170a.) Nurse Recruiter also stated that, when Claimant came in to fill out Employer's forms for the various clearances required, Claimant "shared . . . that her name popped up on [ChildLine] . . . the date [of birth] didn't match [Claimant's] and somebody was going to look into it," although "[Claimant] didn't know if it had been taken care of or not." (Nurse Recruiter's Dep. at 35, R.R. at 171a.) Nurse Recruiter stated that, after Claimant shared that her name had at one point been on ChildLine, Nurse Recruiter contacted Director and told her that there could possibly be something coming up on the clearance report. (Nurse Recruiter's Dep. at 39, R.R. at 172a.) Nurse Recruiter then identified the notes on page four of the employment application as Claimant's handwriting, noting that Claimant's notes were consistent with what Claimant said during their conversation. (Nurse Recruiter's Dep. at 38, R.R. at 172a.)
The handwritten notes include a circle around the box checked "No" to the question: "Have you ever been involved in a founded or indicated report of abuse or neglect of children or adults under the laws of Pennsylvania or any other jurisdiction?" The handwriting states: "In 2001, listed on ChildLine (was told by Ziara Davis, caseworker, in 2006, Northampton Co. OCYS) was not correct - unsure if issue was resolved. Listed with wrong BD." (Employment Application at 4, R.R. at 82a.)
Director testified that she first became aware that there could be an issue with Claimant's clearance upon learning from Nurse Recruiter that Claimant believed she may have been listed on the ChildLine register, and the child abuse clearance form confirmed Claimant's belief. (Director's Dep. at 57-59, R.R. at 176a-77a.) Director stated that: after receiving the report she sent a letter to Claimant asking her to explain why she was on the report and to respond in writing why she affirmed on her application that she was not listed on ChildLine; Claimant sent a letter stating that she was aware that her name was listed on ChildLine from a caseworker and reviewed it with an attorney, but decided not to invest resources in having it removed while still dealing with the emotional trauma with her child. (Director's Dep. at 60-61, 63-64, R.R. at 177a-79a.) Director then recommended to Vice President that Claimant should be terminated because she had checked the "No" box on her application to the child abuse question. (Director's Dep. at 66, R.R. at 179a.)
Claimant testified that when she checked the "No" box on the online employment application, the application did not permit her to type in the explanation that she subsequently wrote by hand onto the application when she personally went into Employer's offices to complete the paperwork to obtain her clearances. (Hr'g Tr. at 8, R.R. at 35a.) Claimant confirmed to Employer that she did not know whether or not her name continued to be listed on ChildLine, but that the caseworker had told her that the listing may have been a mistake because a different date of birth appeared next to it and Claimant was never named in a founded report of child abuse. (Hr'g Tr. at 16, R.R. at 43a.) Claimant testified that the caseworker involved with the second incident of child abuse in 2007 with Claimant's minor child discovered that her name was listed alongside her ex-husband's date of birth, but that her ex-husband's name was not listed. (Hr'g Tr. at 17, R.R. at 44a.) Claimant provided even more information than Employer requested by submitting to Employer a copy of the juvenile court adjudication that addressed the dependency of Claimant's minor children. (Adjudication, R.R. at 104a.) This adjudication revealed that it was Claimant's now ex-husband who committed the sexual abuse of Claimant's minor child in 2001, that Claimant initially reported the abuse to the police, that Claimant was not the original perpetrator, and that Claimant was not an active participant in the abuse of her minor child. (Adjudication at 9-10, R.R. at 112a-13a.)
As pointed out by the Board, the WCJ found Claimant's testimony credible and he accepted the factual testimony of Employer's witnesses, but not their legal conclusions. The WCJ accepted Claimant's explanation as to why she checked "No" on the employment application and we cannot, in our appellate review, overturn the WCJ's credibility determinations. O'Neill v. Workers' Compensation Appeal Board (News Corp. Ltd.), 29 A.3d 50, 56 n.3 (Pa. Cmwlth. 2011) ("[D]eterminations as to witness credibility and evidentiary weight are not subject to appellate review."). As stated above, "some 'bad faith' willful misconduct on the part of the claimant that caused the discharge has to be established or benefits will not be suspended." Virgo, 890 A.2d at 19. Viewing the evidence and the testimony in the light most favorable to Claimant, the party who prevailed before the factfinder, the WCJ's finding that Employer did not meet its burden to prove that Claimant falsified her employment application is supported by substantial evidence. Accordingly, we conclude that Employer did not establish that Claimant's loss of earnings is due to her alleged falsification of the employment application and not her work-related injury.
Finally, Employer argues that the WCJ failed to issue a reasoned decision under Section 422(a) of the Act, 77 P.S. § 834, because: (1) the WCJ did not adequately explain his findings where there was conflicting evidence; (2) the WCJ misunderstood that Claimant's employment had been properly terminated by Employer when her name appeared on ChildLine; and (3) the WCJ should not have based his decision upon legal conclusions involving ChildLine that were unsupported by the evidence.
Section 422(a) of the Act requires the WCJ to issue a reasoned decision. In determining whether a decision is reasoned, we consider whether "it is arbitrary and capricious or so fundamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render it irrational." Casne v. Workers' Compensation Appeal Board (Stat Couriers, Inc.), 962 A.2d 14, 19 (Pa. Cmwlth. 2008). A decision is reasoned for purposes of Section 422(a) of the Act if it allows for adequate appellate review. Daniels v. Workers' Compensation Appeal Board (Tristate Transport), 574 Pa. 61, 76, 828 A.2d 1043, 1052 (2003). To meet this standard, a WCJ does not need to discuss all of the evidence presented. Dorsey v. Workers' Compensation Appeal Board (Crossing Construction Co.), 893 A.2d 191, 194 n.4 (Pa. Cmwlth. 2006). Rather, "[t]he WCJ is only required to make the findings necessary to resolve the issues raised by the evidence and relevant to the decision." Id. "[T]he WCJ is the sole arbiter of the credibility and the weight of testimony and other evidence, and he or she is free to reject or accept the testimony of any witness in whole or in part." O'Donnell v. Workers' Compensation Appeal Board (United Parcel Service), 831 A.2d 784, 789 (Pa. Cmwlth. 2003). A WCJ need not explain credibility determinations relating to a witness who testifies live before the WCJ because of "the advantage of seeing the witnesses testify and assessing their demeanor." Daniels, 574 Pa. at 77, 828 A.2d at 1053.
Section 422(a) provides in relevant part:
All parties to an adjudicatory proceeding are entitled to a reasoned decision 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 decision so that all can determine why and how a particular result was reached.77 P.S. § 834.
Here, with regard to the conflicting evidence, the WCJ was personally present for all witness testimony and found Claimant's testimony credible. There could be various reasons why the WCJ believed Claimant, but we decline to speculate about those reasons as the WCJ had the advantage of seeing Claimant testify and assessing her demeanor. See Dorsey, 893 A.2d at 195 ("Section 422(a) [of the Act] does not permit a party to challenge or second-guess the WCJ's reasons for credibility determinations."). As to the WCJ's alleged misunderstanding of the evidence and the legal conclusions with regard to Claimant's termination and listing on the ChildLine register, the WCJ adequately explained why Employer did not meet its burden of proof in this regard. The WCJ's decision allows effective appellate review and, thus, is reasoned under the Act.
For the foregoing reasons, the Board's Order is affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, November 18, 2013, the January 15, 2013 Order of the Workers' Compensation Appeal Board in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
DISSENTING OPINION BY JUDGE COVEY
I respectfully dissent from the Majority's holding that St. Luke's Hospital (Employer) did not meet its burden to prove that Angela Arthofer's (Claimant) loss of earnings was no longer related to her work-related injury, and the Workers' Compensation Judge's (WCJ) decision is reasoned. The Majority focuses on the wrong issue, categorizes the case as one of credibility when it is not, and characterizes Claimant as forthcoming when the record evidence establishes otherwise. In addition, the WCJ's findings of fact and conclusions of law are contradictory to one another.
First, as the Majority quoted, the WCJ framed the issue as follows: "So we are left with this issue. May an injured worker be denied compensation for actions they [sic] did not commit nearly eight years before the work injury and nearly ten years before [E]mployer considered offering [C]laimant another job?" Maj. Op. at 8 (quoting WCJ Dec. at 11). The WCJ's statement of the issue is outside his scope of authority to determine - whether Claimant committed child abuse which properly resulted in her name appearing in the Central Register (ChildLine Registry).
Further, according to the Majority "the [Workers' Compensation Appeal Board (]Board[)] determined that the WCJ did not err by concluding that Claimant was not barred from employment by the CPSL [Child Protective Services Law] and, therefore, Claimant's loss of earnings was the result of her work[-]related injury." Maj. Op. at 8 (emphasis added). This also is not the issue.
The issue before the Court is whether Employer met its obligations under Kachinski v. Workmen's Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987).
The Court in Kachinski held that:
[T]he following procedure [governs] the return to work of injured employees:Id. at 252, 532 A.2d at 379-80. The Majority does not directly address the issue of whether Claimant was offered suitable employment.
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.
Here, in response to Employer's notification, Claimant took it upon herself to apply for the position at issue. Claimant did so because Employer has a leave of absence policy that provides a full-time employee a maximum of 270 days for a medical disability leave. Claimant's 270th day was January 23, 2010. R.R. (Reproduced Record) at 91a. Claimant applied for the available position just like all other employees returning after an injury who had used their maximum leave time, and/or all employees transferring within the hospital.
The Majority begins its analysis with a review of Employer's Hospital & Health Network Policy and Procedure for Criminal and Child Abuse History Clearance (2009 Policy). It concludes that "Employer's contention that Claimant's benefits should have been suspended because its 2009 Policy prohibited Claimant's hiring is not supported by the record" since Employer did not present evidence that the position offered to Claimant was a child-care position or that Claimant would be in regular contact with children. Maj. Op. at 11. However, the Majority acknowledges in footnote 10 that Employer's 2009 Policy set forth its hiring criterion which all new and current employees must satisfy:
Employer also contends that Claimant's WC benefits should have been suspended because she 'violated' Employer's 2009 Policy by appearing on the ChildLine [Central] Register. ... However, Employer's 2009 Policy merely establishes an eligibility criterion for new or continuing employment - it is not something Claimant can either comply with or violate. An employee does not 'violate' a policy, in other words, act contrary to it, by his inability to satisfy it. . . .Maj. Op. at 11 n.10 (emphasis added). The Majority further states in footnote 11:
Whether Claimant's loss of wages is due to a 'violation' of Employer's 2009 Policy or its general policy is a question separate and distinct from whether the registered nurse position with Employer was even available to Claimant in light of Employer's policies. . . . However, the issue of job availability is not specifically raised in this appeal, was not addressed by the Board below, and is not necessary to our determination.Maj. Op. at 13 n.11 (emphasis added). To the contrary, Employer's first argument in its brief is:
[The WCJ's] conclusion that Claimant was not offered a job with the time-of-injury employer was an error of law, and the Appeal Board failed to consider this issue entirely. Furthermore established precedent demonstrates that [the WCJ] misapplied the law, because [Employer] was under no requirement to show more than that a job was open and available to Claimant where her own actions made her ineligible for the position.Appellant's Br. at 16 (emphasis added). Under the Kachinski standard, Employer was required to show that a position was open and available to Claimant. The fact that Claimant was unable to satisfy Employer's eligibility requirement of not appearing on the ChildLine Registry is a non-work injury reason Claimant did not obtain the job that was open and available to her.
The Majority quotes the Vice President's testimony "that Employer cannot hire or transfer anyone once it comes to Employer's attention that the individual is on the ChildLine register" and "that Employer's policy is, if someone shows up on the [ChildLine] registry, we just don't process them further." Maj. Op. at 12. The Majority discounts that testimony because "Employer didn't offer, or cite to, any documentary evidence setting forth the details of Employer's general policy, as it did with its 2009 Policy, to support the Vice President's statement." Maj. Op. at 12. This conclusion is faulty for two reasons. First, a witness's testimony may provide substantial evidence for a factual finding. See Holt v. Unemployment Comp. Bd. of Review, 840 A.2d 1071 (Pa. Cmwlth. 2004). Here, "[t]he WCJ found the factual testimony of Employer's witnesses credible except to the extent the testimony included legal opinion" and was so noted by the Majority. Maj. Op. at 7. Moreover, "[a]s pointed out by the Board, the WCJ found Claimant's testimony credible and he accepted the factual testimony of Employer's witnesses, but not their legal conclusions" and again the Majority specifically acknowledged same. Maj. Op. at 18 (emphasis added). Thus, there was sufficient evidence to support Employer's policy.
Second, the so-called "general policy" the Majority refers to is in actuality the contents of the 2009 Policy which the Majority does not quote. The pertinent 2009 Policy provisions provide:
It is the policy of St. Luke's Hospital & Health Network and its affiliates (hereinafter collectively referred to as 'St. Luke's' or the 'St. Luke's Network,' depending upon context) to ensure the suitability of candidates seeking employment. As part of the process, all candidates under consideration for employment must have an acceptable Criminal History Report prior to employment.R.R. at 95a (emphasis added). Barbara Flandorffer, Employer's director of staffing, resources and compliance, testified that based on the amendment to the CPSL, "effective July 1, 2008" Employer developed a policy it "put into effect January 2009." R.R. at 176a. Employer was permitted to establish this policy and, in fact, was required to do so due to the change in the law. Employer is not using said policy to justify suspending Claimant's benefits, but rather, Claimant's benefits are to be suspended because she does not qualify for employment under the 2009 Policy for reasons other than her work-related injury.
In addition, as required by the amended Child Protective Services Law ('CPSL'), all persons employed after July 1, 2008 who hold a child-care position must have documentation of an acceptable Child Abuse History Clearance and an acceptable FBI Fingerprint Based Criminal History Record within 30 days of employment for Pennsylvania residents and within 90 days of employment for out of state residents. St. Luke's has amended its policy to require all persons employed or transferring after July 1, 2008 to comply with the aforementioned clearance requirements. Due to the restricted time frame for provisional employment, all new employees and current employees transferring into positions between facilities must have their fingerprinting completed and Child Abuse History Clearance forms submitted before attending orientation or transferring.
In the event one or more of the required background checks reveals either a disqualifying offense, or one that St. Luke's deems otherwise to be unacceptable for the position in question, St. Luke's shall take appropriate action under the circumstances which may include immediately rescinding any conditional offer of employment or transfer and/or severing the employment relationship.
The above policy establishes that all candidates and employees must be cleared through the ChildLine Registry; the requirement is not limited to child-care positions as the Majority states. As explained by the Vice President, Employer established a hiring policy, wherein, Employer, concerning child abuse history, "can't hire anyone. [It] can't transfer anyone once it comes to [its] attention that they're on [the ChildLine] [R]egistry." R.R. at 183a. Moreover, it is irrelevant whether a candidate or employee can satisfy the Pennsylvania Child Abuse Clearance because Employer's 2009 Policy unequivocally states that St. Luke's can take appropriate action, including employment termination, "[i]n the event one or more of the required background checks reveals either a disqualifying offense, or one that St. Luke's deems otherwise to be unacceptable. . . ." R.R. at 95a (emphasis added). Accordingly, the 2009 Policy supports Employer's actions.
Here, Claimant was not working in the available job because of her failure to satisfy Employer's established hiring criteria (her name appearing on the ChildLine Registry which occurred prior to her injury but was not discovered until after her injury) which was not a result of her work injury. In addition to Claimant's pre-injury conduct preventing her from being employed with Employer, Claimant's misrepresentation of that above fact to Employer on her job application also disqualified her from employment, which is another non-work injury reason. The job in question was available to Claimant but for her name appearing on the ChildLine Registry, and her concealment thereof.
Employer relies on several cases for its position that where the claimant's employment is terminated post-injury for pre-injury conduct the claimant is not entitled to benefits. The Majority rejects those cases as inapposite. I believe the instant matter is analogous to these cases to which we are bound to adhere.
Specifically the Majority states: "In Virgo [v. Workers' Compensation Appeal Board (County of Lehigh-Cedarbrook), 890 A.2d 13 (Pa. Cmwlth. 2005)], Harvey [v. Workers' Compensation Appeal Board (Monongahela Valley Hospital), 983 A.2d 1254 (Pa. Cmwlth. 2009)], and Myers [v. Workmen's Compensation Appeal Board (C.W. Wright Construction Co., Inc.), 657 A.2d 129 (Pa. Cmwlth. 1995)] there were specific findings supported by substantial evidence that the claimants' loss of earnings was not due to their work-related injuries, but instead due to the claimants' conduct . . . ." Maj. Op. at 13-14.
In Harvey v. Workers' Compensation Appeal Board (Monongahela Valley Hospital), 983 A.2d 1254 (Pa. Cmwlth. 2009), this Court held:
Claimant's loss of earnings is the direct result of her termination and subsequent loss of her nursing license for professional misconduct, and not the result of her work injury. As such, we cannot agree with Claimant that Employer was required to refer Claimant to one of the identified nursing positions with Employer. Such would be a futile act and would promote form over substance. Because these identified available positions would have been referred to Claimant had she not lost her job and nursing license for professional misconduct, Employer is not required to establish earning power outside of employment with Employer via expert opinion evidence under Section 306(b)(2) of the Act, 77 P.S. § 512(2).Id. at 1262 (emphasis added).
Similarly, in Myers v. Workmen's Compensation Appeal Board (C.W. Wright Construction Co., Inc.), 657 A.2d 129 (Pa. Cmwlth. 1995), this Court held:
In the matter before us, claimant suffered a work-related injury. Claimant was released to work a pre-existing light-
duty position. . . . This was performable work, available to the claimant. This work remained available to claimant at all times, except for the claimant's inability to obtain a [commercial driver's license] CDL. This factor is the sole fault of the claimant's. Since it in no way relates to the claimant's disability, claimant has failed to sustain his burden of proving the termination was related to his injury.Id. at 132 (emphasis added). The claimant in Myers knew he could not obtain a CDL because he had a glass eye but never informed Employer. Here, Claimant's employment was also terminated post-injury for pre-injury conduct, thus, in accordance with the aforementioned cases, Claimant is likewise not entitled to benefits.
In addition to Claimant's pre-injury conduct, Claimant also falsified her employment application. The Majority states: "Claimant testified that when she checked the 'No' box on the online employment application, the application did not permit her to type in the explanation that she subsequently wrote by hand onto the application when she personally went into Employer's offices to complete the paperwork to obtain her clearances." Maj. Op. at 18. However, the application on which Claimant hand wrote an explanation is the same application she filled out online. R.R. at 171a. The application speaks for itself. The question on the application asked: "Have you ever been involved in a founded or indicated report of abuse or neglect of children or adults under the laws of Pennsylvania or any other jurisdiction?" R.R. at 82a. The next line states: "If yes, which jurisdiction(s) and explain." Id. (emphasis added). Claimant checked the box marked "No". Id.
The Board quoted the complete employment application question at issue in its opinion. Bd. Op. at 5. However, the Majority did not quote the question in its entirety; just the first half of the question was quoted while the "if yes, which jurisdiction(s) and explain" was omitted. Maj. Op. at 3.
Clearly, Claimant had the ability and the obligation to answer truthfully, and could have provided Employer an explanation. Not only was Claimant "involved in a founded or indicated report of abuse or neglect of children" as evidenced by the very documentation she submitted to Employer (R.R. at 104a-114a), but her name was also on the ChildLine Registry of which she had full knowledge. R.R. at 98a. The WCJ's finding that there was no place on the application to explain a yes answer is contrary to the undisputed employment application. The competent, undisputed record evidence does not support the WCJ's finding of fact or conclusion of law that the employment application did not allow for explanation of a "yes" answer. Rather, the WCJ capriciously disregarded competent record evidence.
In addition, the Majority states:
Claimant provided even more information than Employer requested by submitting a copy of the juvenile court adjudication that addressed the dependency of Claimant's minor children. . . . The adjudication revealed that it was Claimant's now ex-husband who committed the sexual abuse of Claimant's minor child in 2001, that Claimant initially reported the abuse to police, that Claimant was not the original perpetrator, and that Claimant was not an active participant in the abuse of her minor child.Maj. Op. at 18. Like the application, the plain words of the adjudication speak for themselves. The adjudication Claimant submitted to Employer did not determine the child abuse issue but rather as that document states, it ruled on "the petitions of the Lehigh County Office of Children and Youth Services ('OCYS') . . . [regarding an] adjudication of dependency with respect to each of the above-named juveniles." R.R. at 104a. More importantly, the adjudication expressly implicated Claimant by concluding:
The fact that [Claimant] was not an active participant in [juvenile's] abuse is not determinative of [juvenile's] status as a dependent child. A care taker's omissions, as well as her acts, must be considered when assessing whether a
parent is providing a minor with proper care and control. . . . '[T]he parental duty extends beyond mere restraint from actively abusing a child; rather there exists a duty to protect the child from the harm that others may inflict.' [Juvenile] should not be allowed to return home if [Claimant] seeks to bring [father] back into the home. Were [father] to return home while [juvenile] is still living there, a real danger exists that abuse could re-occur. . . . Accordingly, [Claimant's] actions in seeking [father's] return to their home demonstrates that [juvenile] is without proper parental care and control.R.R. at 109a (emphasis added). Regardless of whether the WCJ found Claimant credible, the undisputed employment application unequivocally shows that Claimant checked "no" when in fact she was aware that she was involved in an indicated report of child abuse and the very document Claimant furnished Employer to show she was not "involved in a founded or indicated report of abuse or neglect of children" clearly demonstrated otherwise.
"[It is] the WCJ's prerogative to determine the credibility of witnesses and the weight to be accorded evidence . . . . Such determinations are binding on appeal unless made arbitrarily and capriciously." PEC Contracting Eng'rs v. Workers' Comp. Appeal Bd. (Hutchison), 717 A.2d 1086, 1089 (Pa. Cmwlth. 1998) (emphasis added). Here, the WCJ's decision reflects that he disregarded the undisputed competent record evidence and chose to make his decision one of credibility in complete derogation of the documentary evidence. The WCJ arbitrarily and capriciously disregarded both the application, and the adjudication.
Although generally a [WCJ] may disregard the testimony of any witness, even though the testimony is uncontradicted, he does not have the discretion to capriciously disregard competent evidence without a reasonable explanation or without specifically discrediting it. . . . At the very least the findings and conclusions of the fact finder must have a rational basis in the evidence of record and demonstrate an appreciation and correct application of underlying principles of substantive law to that evidence. . . . When a
[WCJ] rejects uncontradicted evidence and makes findings or conclusions which have no rational basis in the evidence of record, that [WCJ] capriciously disregards competent evidence. Simply stated, a [WCJ] may not 'reject' credible and uncontradicted . . . evidence without explaining why the evidence is 'rejected.'Green v. Workers' Comp. Appeal Bd. (US Airways), 28 A.3d 936, 942 (Pa. Cmwlth. 2011) (quoting Acme Mkts., Inc. v. Workmen's Comp. Appeal Bd. (Pilvalis), 597 A.2d 294, 296-97 (1991) (citations omitted) (emphasis added)).
Here, the WCJ, the Board and the Majority disregarded the undisputed plain words of the employment application itself based on Claimant's testimony. However, Claimant's testimony in fact is an admission that she knowingly falsified the application. Claimant, when asked at the WCJ hearing whether she had been involved in an indicated report of abuse, responded: "At that time, I didn't know whether or not my name was still on the registry." R.R. at 43a (emphasis added). Further, her hand written explanation that she added after the fact stated: "In 2001, listed on ChildLine." R.R. at 82a. The question on the application asked "[h]ave you ever been involved in a founded or indicated report of abuse . . . ." R.R. at 82a (emphasis added). Based on her testimony and her hand written note, Claimant was well aware at the time she completed Employer's employment application that she had not only been "involved" but was listed on the ChildLine Registry.
Contrary to the Majority's characterization of Claimant as being forthcoming with the fact that her name had been on ChildLine in the past, the record evidence establishes otherwise. Specifically, the Majority states: "Nurse Recruiter testified that, when she called Claimant about the suitable job, Claimant 'shared with [her] that in the past, there had been a report run that she was listed on the child abuse registry[.]'" Maj. Op. at 16. However, a review of the record evidences that Claimant did not offer that information until after she was told that a child abuse clearance would be run on her. Nurse Recruiter related during questioning at her deposition as follows:
Q I want you to relay the whole conversation to the judge.R.R. at 170a (emphasis added). Again, this testimony acknowledges that Claimant knew her name had been listed on the ChildLine Registry. In addition, Claimant advised Nurse Recruiter that she thought it was corrected, but in her letter to Employer she stated she did not hire an attorney to correct it because she did not want "to invest the time, energy, or resources" and that was "how the matter was left." R.R. at 102a-103a.
A Typically, when someone calls and accepts the position, then I have them stop into human resources to sign the application, to fill out some of the forms, the disclosures. And then I proceed with - when we have somebody transfer from one unit to the other, we do a bunch of checks, criminal checks. The Pennsylvania state check. [sic] We register for fingerprints, and the child abuse clearance. So I went over all that with her.
Q Okay. What, if anything, did she say on 4/2/2010 concerning that?
A At that point, she had shared with me that in the past, there had been a report run that she was listed on the child abuse registry or whatever. I don't remember the person's name that she said had told her. But the Angela Arthofer, or Angela that was on the list didn't have the same date of birth, and she thought that it had been corrected.
The Majority Opinion further supports Claimant's knowledge of all the pertinent facts at the time she completed her employment application:
Claimant confirmed to Employer that she did not know whether or not her name continued to be listed on ChildLine, but that the caseworker had told her that the listing may have been a mistake because a different date
of birth appeared next to it and Claimant was never named in a founded report of child abuse.Maj. Op. at 18 (emphasis added). In addition, the WCJ found as a fact: "At the time she filled out the application she did not know if she was listed on the child abuse registry. She understood from a caseworker that her name had been placed on the registry by mistake." WCJ Dec. at 11 (emphasis added). Both of these statements acknowledge Claimant's admission that at the time Claimant completed her employment application she was well aware she had "been involved in a[n] . . . indicated report of abuse . . . ."
Moreover, the WCJ, rather than including a "rational explanation" for disregarding the plain, undisputed words of the application, contradicts himself in his findings of fact and conclusions of law. For example, the WCJ found Claimant "completely credible", notwithstanding she testified and the WCJ found as a fact that "[s]he filled out an application for an RN job on-line. When she did so there was no place on the on-line application to explain the yes or no answers." WCJ Dec. at 5, 6. The WCJ states as a conclusion of law that "[w]hen the application process is reviewed in its entirety the employer failed to produce credible evidence that the claimant falsified her application." WCJ Dec. at 10. However, as stated above, the application specifically asked a yes or no question, and if yes, explain. Even if the application did not provide a space for an explanation, based on the record which is replete with evidence regarding Claimant's knowledge of her ChildLine Registry listing, including Claimant's own admissions, Claimant was obligated to answer "yes". Moreover, the adjudication Claimant furnished Employer implicated Claimant in child abuse for not protecting a child from harm others may inflict. R.R. at 82a, 112a-113a. The above are only two examples of the WCJ capriciously disregarding competent, uncontradicted record evidence without stating a reasonable explanation therefor.
The WCJ's opinion is also unreasoned as its findings of fact and conclusions of law are contradictory in regard to Employer's witnesses and their testimony. First, the WCJ states as a conclusion of law that "[t]he employer has failed to produce evidence, herein found credible, that it offered the claimant employment. The potential offer was never finalized." WCJ Dec. at 10. However, the WCJ found that "[t]he factual testimony of all of the employer's witnesses is credible." WCJ Dec. at 9. According to the WCJ's findings of fact: "Leann Vigilanti testified . . . [s]he preliminarily offered [Claimant] a registered nurse position . . . . [and] [t]he claimant promptly accepted . . . ." WCJ Dec. at 7. "Barbara Flandorffer testified . . . [w]hen she received the claimant's response she recommended that the claimant be terminated for falsifying documents and for being on the abuse registry." WCJ Dec. at 8. Finally, "Andy Seidel testified . . . [h]e issued the termination letter. The claimant's employment was terminated because of her child abuse history and her misrepresentation on the application." WCJ Dec. at 8. Further, in the "Discussion" section of his decision, the WCJ states: "Instead of bringing the claimant back to work, the employer fired her." WCJ Dec. at 11. Even the Majority acknowledges that the WCJ found Employer's testimony credible and that it testified to Claimant's employment termination: "Instead of bringing Claimant back to work, Employer fired her," (Maj. Op. at 7); "Moreover, when Employer learned that Claimant was listed on an indicated report on ChildLine, it did not immediately terminate her employment," (Maj. Op. at 12); "Director then recommended to Vice President that Claimant should be terminated because she had checked the 'No' box on her application to the child abuse question." Maj. Op. at 17. Clearly, the WCJ's conclusion of law is in conflict with his findings of fact and discussion. Again, the above are only a few examples of how the WCJ's opinion is unreasoned.
The Board acknowledges this finding in its opinion. Bd. Op. at 6.
The record reveals Leann Vigilanti never used the word "preliminarily"; she testified "[w]ell I have documented on March 30th is (sic) when I officially offered her the position." R.R. at 169a (emphasis added). Ms. Vigilanti also testified that "[t]ypically, when someone calls and accepts the position, then I have them stop into human resources to sign the application. . . ." R.R. at 170a (emphasis added). --------
Contrary to the WCJ, the Board and the Majority's belief that this case is one of credibility; where there exist competent, undisputed documents, the plain words of those documents cannot be arbitrarily and capriciously disregarded. The competent, undisputed record evidence - the adjudication and the employment application - clearly establish that Claimant knew she was involved in an indicated report of abuse to which she was obligated to answer truthfully and to which she could have provided an explanation on the employment application, but rather she checked "No." Consequently, if not for Claimant's actions of both lying on her application about the fact that she was not involved in an indicated or founded report of abuse of children, and having her name appear on the ChildLine Registry precluding her from fulfilling Employer's established hiring criteria, she would have been working at said job.
The WCJ's authority as fact-finder is not violated by this Court determining that as a matter of law Employer has met its burden of proving available suitable employment. See Meadow Lakes Apartments v. Workers' Comp. Appeal Bd. (Spencer), 894 A.2d 214 (Pa. Cmwlth. 2006) (Court held that whether claimant met his burden of proof is a legal conclusion).
Accordingly, for all of the above stated reasons, I believe the Board's decision should be reversed.
/s/_________
ANNE E. COVEY, Judge