S. Gilliard v. WCAB (Protocall, Inc.) ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Shanada Gilliard, :
Petitioner :
: No. 8 C.D. 2016
v. :
: Submitted: August 5, 2016
Workers’ Compensation Appeal :
Board (Protocall, Inc.), :
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: December 20, 2016
Shanada Gilliard (Petitioner) petitions for review of the December 9,
2015 order of the Workers’ Compensation Appeal Board (Board), which reversed a
workers’ compensation judge’s (WCJ) decision awarding unreasonable contest
attorney’s fees, but affirmed the WCJ’s decision in all other aspects.
Facts and Procedural History
Claimant was hired by Protocall, Inc. (Employer), a temporary agency,
and placed in a temporary position as a patient service representative. On June 13,
2013, Claimant suffered a laceration to her left index finger when she attempted to
remove a heavy-duty staple from a pack of medical records using scissors. Claimant
was sent to Pennsylvania Hospital, where she received stitches, and was later treated
at WorkNet. Employer issued a notice of temporary compensation payable
acknowledging Claimant’s work injury and commencing payment of compensation
benefits.
On June 25, 2013, Employer offered Claimant a modified duty position
sorting resumes. Claimant accepted the position and, on June 26, 2013, reported to
Employer’s location; however, Claimant left early and did not return to work for
Employer, although light-duty work continued to be available to her.
On July 9, 2013, Employer issued a notice stopping temporary
compensation and a notice of compensation denial, indicating that there was no
medical documentation to substantiate total disability beyond June 26, 2013.
Claimant underwent surgery on August 22, 2013, and, on October 24,
2013, filed a claim petition seeking total disability benefits from June 13, 2013, and
ongoing, as well as payment of medical bills and counsel fees. Employer filed an
answer, denying the material allegations of Claimant’s petition. Employer
subsequently filed a petition for physical examination, which was granted on May 5,
2014.
By letter dated September 3, 2014, Employer offered Claimant a
position performing front desk work with one of its clients starting September 11,
2014, and included a notice of ability to return to work. Employer gave Claimant
$80.00 for transportation costs to and from its client’s location; however, Claimant
never appeared at the offered job or returned the transportation costs.
On October 15, 2014, a WCJ conducted a hearing on Claimant’s
petition. Both Claimant and Employer submitted expert medical testimony. In
summary, Claimant’s expert, Dr. Caplan, opined that Claimant’s injury rendered her
incapable of performing her pre-injury position with Employer, “but would allow her
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to work in a clerical position that did not require a significant amount of computer
input, heavy lifting and carrying, and had some form of temperature control.”
(WCJ’s Finding of Fact at 2.) Conversely, Employer’s expert, Dr. Kelman, testified
that he would place a ten pound lifting restriction on Claimant’s work; that he would
not restrict Claimant’s ability to walk around the office, sit, or answer telephones; and
opined that Claimant could return to her pre-injury job with Employer if she
completely immobilized her finger.
WCJ’s Decision
By order dated February 11, 2015, the WCJ granted Claimant’s petition
for the closed period of June 13, 2013, through June 25, 2013, because Claimant
sustained a work injury. The WCJ suspended Claimant’s benefits from June 26,
2013, through August 21, 2013 because Claimant returned to modified, full-duty
work on June 26, 2013, and abandoned the same for reasons unrelated to her work
injury. Similarly, the WCJ granted Claimant’s petition for the period of August 22,
2013, the date of her surgery, through September 10, 2014, but suspended benefits as
of September 11, 2014, because Employer met its burden of proving that, “as of
September 11, 2014, Claimant was sufficiently recovered from the work injury to
return to full time work with restrictions and that such work was available and offered
to Claimant but Claimant failed to follow up in good faith.” (WCJ’s Conclusion of
Law at No. 3.)
The WCJ found credible Claimant’s testimony that she sustained a work
injury; however, the WCJ specifically rejected as not credible Claimant’s testimony
that she was unable to perform the modified duty job sorting resumes until her
August 2013 surgery. The WCJ also found:
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Claimant’s credibility in general is undermined by the fact
that she had multiple instances of non-compliance with
medical referrals to therapy and to Dr. Zelouf and
significant gaps in treatment. Of note, Claimant did not
receive any medical treatment from September 3, 2013
when she last saw Dr. Zelouf to February 2014 when she
first saw Dr. Caplan. Claimant’s testimony regarding why
she was non-compliant with therapy was internally
inconsistent. At her deposition she said she did not go to
therapy due to childcare and transportation issues as well as
“other responsibilities.” At the hearing, Claimant testified
that she did not go to therapy because of “insurance.”
Claimant’s credibility is further undermined by her actions
with respect to the September 3, 2014 job offer as described
by the credible and unrebutted testimony of Mr. Fazio and
Ms. Tistan-McGuire. Claimant’s credibility is undermined
by her conviction for retail theft in October of 2011.[1]
(WCJ’s Finding of Fact at No. 10.)
Regarding the medical testimony of Claimant’s expert, Dr. Caplan, and
Employer’s expert, Dr. Kelman, the WCJ found their testimony substantially similar.
However, to the extent that their opinions differed, the WCJ found Dr. Kelman more
credible and persuasive because: Dr. Kelman was a Board-certified orthopedic
surgeon whereas Dr. Caplan was a plastic surgeon; and Dr. Caplan only saw
Claimant on a single occasion, eight months after her injury, at the referral of her
attorney. (WCJ’s Finding of Fact at No. 15.)
In addition, the WCJ found that Employer’s contest was unreasonable
because it maintained its denial notwithstanding that WorkNet confirmed that
1
Dr. Zelouf is the surgeon who performed Claimant’s surgery. Dr. Zelouf did not testify but
generated medical records that the parties’ experts reviewed. (WCJ’s Findings of Fact at Nos. 1-3.)
Mr. Fazio is Vice President of operations for Employer’s Pennsylvania branches and the author of
the September 2014 letter. (WCJ’s Finding of Fact at No. 6.) Similarly, Ms. Tistan-McGuire is
Employer’s corporate administrative assistant.
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Claimant sustained a work injury and had to undergo surgery for the same.
Accordingly, the WCJ directed Employer to pay Claimant’s attorney’s fees.
Claimant and Employer both appealed the WCJ’s decision to the Board.
Claimant asserted that, inter alia, Employer’s September 3, 2014 letter was legally
insufficient to warrant a suspension of benefits because it did not contain enough
information about the job requirements of the position. Employer argued that the
WCJ erred in concluding that its contest was unreasonable.
Board’s Decision
By order dated December 9, 2015, the Board reversed the WCJ’s award
of unreasonable contest attorney’s fees and affirmed the decision in all other aspects.
According to the Board, although Employer had knowledge that Claimant had
sustained a work injury and had to undergo surgery for the same, Employer issued a
notice of compensation denial asserting that Claimant did not have any disability
from June 26, 2013, and ongoing. Thus, the Board determined that Employer’s
contest was reasonable because Claimant’s disability was in dispute. Additionally,
the Board found persuasive that Employer’s contest disputing Claimant’s disability
was ultimately successful.
Regarding Employer’s September 2014 letter, the Board determined that
it was adequate to meet the standard outlined in Hockenberry v. Workmen’s
Compensation Appeal Board (Pennsylvania State Police), 672 A.2d 393 (Pa.
Cmwlth. 1996), because it provided a general job classification and included a basic
description of the work duties to be performed. As such, the Board determined that
the WCJ did not err in suspending Claimant’s benefits as of September 11, 2014.
Claimant appealed the Board’s decision to this Court.
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On appeal,2 Claimant asserts that the Board erred in affirming the WCJ’s
decision suspending benefits because Employer’s September 2014 letter did not meet
the specifics required for an offer of employment pursuant to the standard
promulgated in Hockenberry. Moreover, Claimant argues that Employer failed to
meet its burden of establishing that the job offer was within Claimant’s medical
restriction because the letter’s author stated that he did not review the medical reports
or know Claimant’s medical restrictions. Additionally, Claimant argues the Board’s
decision to reverse the WCJ’s award of attorney’s fees was erroneous because
Employer denied all aspects of Claimant’s injury notwithstanding evidence in its
possession amounting to “strict proof” of the same. (Petitioner’s brief at 7.)
Conversely, Employer argues that the Board’s decision suspending
Claimant’s benefits was proper because there is no requirement that the author of a
job referral letter review medical reports before offering the position. Moreover,
Employer argues that it acted within its rights to litigate Claimant’s disability and the
Board’s decision reversing the WCJ’s award of attorney fees was proper.
Discussion
Generally, an employer must meet the following requirements to
suspend a claimant’s benefits:
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
Our scope of review is limited to determining whether an error of law occurred, whether
constitutional rights have been violated, or whether necessary findings of fact are supported by
substantial evidence. Hockenberry v. Workmen’s Compensation Appeal Board (Pennsylvania State
Police), 672 A.2d 393, 395 n.4 (Pa. Cmwlth. 1996).
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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 follow through on the job referral(s).
4. If the referral fails to result in a job then claimant’s
benefits should continue.
Kachinski v. Workmen’s Compensation Appeal Board (Vepco Construction Co.), 532
A.2d 374, 380 (Pa. 1987).3
An employer may establish its entitlement to a suspension or
modification of benefits by referring a claimant to an available position as required
by Kachinski. City of Pittsburgh v. Workers’ Compensation Appeal Board
(Robinson), 4 A.3d 1130, 1134 (Pa. Cmwlth. 2010). If the employee has not been
previously employed in the referred position, the employer must provide information
related to the job duties and classification “so that the claimant can make an informed
decision regarding whether the position offered is within her capabilities.” Eidem v.
Workers’ Compensation Appeal Board (Gnaden-Huetten Memorial Hospital), 746
A.2d 101, 104 (Pa. 2000). In other words, a job referral must provide the claimant
with a general job classification or state whether the job is within a category for
3
Although Kachinski was superseded, in part, when the General Assembly amended Section
306(b) of the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77
P.S. §512, to add subsection (2) in 1996, Riddle v. Workers’ Compensation Appeal Board
(Allegheny City Electric, Inc.), 981 A.2d 1288, 1292-93 (Pa. 2009), Kachinski “is still applicable in
situations where an employer seeks a modification of benefits based on an offer of a specific job
with the employer.” South Hills Health System v. Workers’ Compensation Appeal Board (Kiefer),
806 A.2d 962, 968 (Pa. Cmwlth. 2002).
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which the claimant has received medical clearance, along with a basic description of
the job. Hockenberry, 672 A.2d at 396-97; Four-Way Construction Company v.
Workmen’s Compensation Appeal Board (Snyder), 536 A.2d 873, 874 (Pa. Cmwlth.
1988).
“It is clear that the employer need not specify every aspect of the job in
question, since in Kachinski this court explicitly rejected such a hypertechnical
approach to reviewing these referrals.” Eidem, 746 A.2d at 104. “Rather, the referral
should be reviewed in a common sense manner in order to determine whether a
suitable position has been made available to the claimant.” Id. “The burdens
imposed on employers in regard to job referrals are not onerous.” School District of
Philadelphia v. Workmen’s Compensation Appeal Board (Stutts), 603 A.2d 682, 686
(Pa. Cmwlth. 1992).
According to Claimant, Employer’s September 2014 letter did not meet
the standard promulgated in Hockenberry because the author acknowledged that he
was not aware of the medical restrictions placed on Claimant by her physician; the
letter made no mention of a specific job being offered; and the letter did not state how
guidelines provided by Claimant’s physician were used to identify an appropriate
work assignment. Thus, Claimant maintains, the September 2014 letter is virtually
the same as the letter rejected in Hockenberry.
In Hockenberry, after the claimant suffered a work injury, her doctor
advised that she could return to work only if her job duties did not require kneeling,
working overhead for long periods of time, or working with her head fully flexed for
long periods. Subsequently, the employer sent the claimant a letter stating:
[Y]ou [are] ordered to report to work on May 16, 1990 at
8:15 a.m.
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Arrangements have been made to provide you with duties
which will accommodate the physical limitations detailed in
the medical reported dated April 16, 1990 . . . . The report
states ‘The patient may perform all duties of her job with
the exception of A) Kneeling. B) Working over heads for
long periods. C) Working with the head fully flexed for
long periods.’
672 A.2d at 395.
Notwithstanding the letter, the claimant did not report to work, employer
terminated the claimant for abandoning her job, and the claimant filed a claim
petition seeking compensation benefits. On appeal to this Court, we determined that
the employer’s letter was not sufficient notice to the claimant of existing available
work because it “merely states that an alternative position had been arranged which
would accommodate her physical limitations as detailed by her physician. It failed to
provide any descriptive information about the available job or its duties; such
information is essential to her in making an informed choice about the job referral.”
Id. at 397 (emphasis added). We concluded that a job referral must include “a
general job classification and a basic description of the job.” Id.Here, Employer’s September 2014 letter to Claimant advised, in
pertinent part, that: it had been notified by Claimant’s physician that she has been
cleared to return to work; it used guidelines provided by Claimant’s physician to
identify an appropriate transitional duty work assignment; and Claimant’s modified
job duties will consist of front desk work, answering phones, data entry, filing, and
working with clients. (WCJ’s Finding of Fact at No. 6.) As Eidem instructs,
Employer need not specify every aspect of the job in question; rather, the referral
should be reviewed in a common sense manner. Employer’s letter contains a general
job classification of modified, transitional duty work, states that it worked with
Claimant’s physician to identify an appropriate position, and provides a basic
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description of the modified job’s duties. Contrary to the letter in Hockenberry,
Employer’s letter provides specific, descriptive information regarding the job
sufficient to enable Claimant to make an informed choice about the referral. Indeed,
Claimant’s own conduct indicates the suitability of the referral: Claimant appeared at
Employer’s office building; requested and accepted money for transportation to the
referred job, but never appeared for the same. The fact that Claimant accepted funds
for transportation to the referred job in anticipation of performing the same
demonstrates that the letter enabled her to make an informed choice about whether
the referral was within her capabilities.
Moreover, Claimant’s assertions that the September 2014 letter was
insufficient because its author stated that he did not review her medical reports or
know Claimant’s medical restrictions and the letter did not state how Claimant’s
physician’s guidelines were taken into account when identifying an appropriate
assignment lacks merit. The purpose of requiring essential information in job
referrals is to provide a claimant with notice of work within his or her restrictions.
See School District of Philadelphia, 603 A.2d at 686. The focus of the inquiry is on
the content of the referral, not the procedures that were used to generate it. Thus,
Claimant’s argument is unpersuasive.
Therefore, we discern no error in the Board’s determination that
Employer’s September 2014 letter complied with the standard promulgated in
Hockenberry and was sufficient to advise Claimant of work within her restrictions
because it contained a general job classification, stated that the job was within a
category for which Claimant had received medical clearance, and provided a basic
description of the job’s duties.
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Attorney’s Fees
Section 440 of the Law, added by the Act of February 8, 1972, P.L. 25,
77 P.S. §996(a), states:
In any contested case where the insurer has contested
liability in whole or in part, including contested cases
involving petitions to terminate, reinstate, increase, reduce
or otherwise modify compensation awards, agreements or
other payment arrangements or to set aside final receipts,
the employe or his dependent, as the case may be, in whose
favor the matter at issue has been finally determined in
whole or in part shall be awarded, in addition to the award
for compensation, a reasonable sum for costs incurred for
attorney’s fee, witnesses, necessary medical examination,
and the value of unreimbursed lost time to attend the
proceedings: Provided, That cost for attorney fees may be
excluded when a reasonable basis for the contest has been
established by the employer or the insurer.
77 P.S. §996(a).
“The award of attorney’s fees is the rule in worker’s [sic] compensation
cases, and their exclusion is the exception which is applied only in cases where the
employer has presented sufficient evidence to establish the reasonable basis for its
contest.” General Carbide Corporation v. Workmen’s Compensation Appeal Board
(Daum), 671 A.2d 268, 270 (Pa. Cmwlth. 1996). The employer bears the burden of
presenting sufficient evidence to establish that its contest was reasonable. Pruitt v.
Workers’ Compensation Appeal Board (Lighthouse Rehabilitation), 730 A.2d 1025,
1028 (Pa. Cmwlth. 1999). “Reasonableness of an employer’s contest depends upon
whether the contest was prompted to resolve a genuinely disputed issue or merely to
harass the claimant.” McGuire v. Workmen’s Compensation Appeal Board (H.B.
Deviney Company, sub. of J.M. Smucker Co.), 591 A.2d 372, 374 (Pa. Cmwlth.
1991).
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“[A]n employer may contest a claim in order to ascertain the proper
period of disability.” Striker v. Workmen’s Compensation Appeal Board (California
University of Pa.), 650 A.2d 1109, 1111 (Pa. Cmwlth. 1994). Similarly, “[t]he
existence of an issue of the degree of disability may provide a reasonable basis for an
employer’s contest.” Pruitt, 730 A.2d at 1028; see also Varghese v. Workmen’s
Compensation Appeal Board (M. Cardone Industries), 573 A.2d 630, 633 (Pa. 1990)
(holding that conflicting medical evidence regarding the extent of the claimant’s
disabilities forms a reasonable basis for the contest). Whether an employer’s contest
is reasonable for purposes of an award of attorney’s fees is a question of law fully
reviewable by this Court. Pruitt, 730 A.2d at 1025.
Claimant argues that the Board erred in reversing the WCJ’s award of
unreasonable contest attorney’s fees because Employer had medical evidence
indicating that Claimant suffered a work injury and required surgery. Therefore,
according to Claimant, there was no dispute regarding the nature of Claimant’s work
injury or whether it was causally related to her work duties.
Here, Claimant is correct that there was no dispute regarding the nature
of Claimant’s work injury or whether it was causally related to her work duties.
However, Employer’s contest was related to the degree and period of Claimant’s
disability, which is a reasonable basis for a contest. Although Employer was aware
that Claimant sustained a work injury and required surgery for the same, this
information had no bearing on Claimant’s degree or period of disability. Moreover,
the record lacks evidence indicating that the purpose of Employer’s contest was to
harass Claimant. Indeed, Employer was ultimately successful, in part, in disputing
Claimant’s degree and period of disability. See Volterano v. Workmen’s
Compensation Appeal Board (Allied Corporation and Travelers Insurance
12
Company), 613 A.2d 61, 65 (Pa. Cmwlth. 1992) (holding that the employer’s success
in disputed workers’ compensation claim made contest per se reasonable).
Therefore, we discern no error in the Board’s determination to reverse the WCJ’s
award of unreasonable contest attorney’s fees.
Accordingly, the Board’s order is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Shanada Gilliard, :
Petitioner :
: No. 8 C.D. 2016
v. :
:
Workers’ Compensation Appeal :
Board (Protocall, Inc.), :
Respondent :
ORDER
AND NOW, this 20th day of December, 2016, the December 9, 2015
order of the Workers’ Compensation Appeal Board is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge