P. Brennan v. WCAB (Com. of PA) ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Patricia Brennan, :
Petitioner :
: No. 270 C.D. 2016
v. :
: Submitted: September 9, 2016
Workers’ Compensation Appeal :
Board (Commonwealth of :
Pennsylvania), :
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: December 21, 2016
Patricia Brennan (Claimant) petitions for review of the January 28, 2016,
order of the Workers’ Compensation Appeal Board (Board), which affirmed the
decision and order of the Workers’ Compensation Judge (WCJ) granting the
suspension petition filed by the Commonwealth of Pennsylvania (Pennsylvania
House of Representatives) (Employer).1
For thirteen years, Claimant managed the district office of an elected
member of the Pennsylvania House of Representatives. Claimant described her job
duties as follows:
1
The WCJ also granted a petition to review compensation benefits filed by Claimant, but
that petition is not at issue in the present appeal.
I took constituent complaints and put them into the
constituent tracking system. I followed up with different
departments to resolve the concerns of the constituents. I
took care of the legislator’s calendar again on the computer.
I managed all of her activities, schedules, ordered supplies
for the office…I greeted people as they came in, dealt with
their problems, put away supplies, filed, faxed, data
entry…day was spent on the computer keyboard…I’d say at
least fifty percent.
(WCJ’s Finding of Fact No. 5(b); Reproduced Record, R.R. at 245a-246a.) In June
of 2012, Claimant began suffering pain in her left wrist and thumb, which ultimately
caused her to stop working and seek medical treatment. Employer issued a Notice
of Compensation Payable (NCP) dated September 24, 2012, acknowledging that
Claimant sustained a work-related injury in the nature of a left wrist strain due to
repetitive motion.2 On June 25, 2013, Claimant filed a review petition seeking to add
deQuervain’s Syndrome to the description of her work injury. Employer filed an
answer denying the allegations of this petition. On June 6, 2013, following an
independent medical examination which determined that Claimant could perform
sedentary work and the offer of a modified job on April 3, 2013, to which Claimant
did not respond, Employer filed a petition to suspend Claimant’s compensation
benefits. On January 15, 2014, as these petitions were pending, Employer issued an
Amended/Corrected NCP to add deQuervain’s Syndrome to the description of the
work injury. (WCJ’s Findings of Fact Nos.1- 5.)
Nevertheless, both petitions were assigned to the WCJ, who proceeded
with hearings. Claimant testified that she first noticed pain in her left wrist and
thumb in June 2012, and that she subsequently commenced treatment with Dr. Mark
Avart. After a series of referrals and recommendations of surgery from several
2
The WCJ’s decision incorrectly identifies the date of the NCP as December 7, 2012.
2
orthopedic physicians, Claimant began treating with Dr. Robert Cabry in December
of 2012. Despite staying with Dr. Cabry for treatment, she noticed little if any
improvement in her symptoms. Claimant also testified that although she has
difficulty performing activities of daily living, she was able to perform volunteer
work for a community association and that she sent emails from her home computer
and participated on the social media site Facebook. Additionally, Claimant admitted
to receiving Employer’s job offer but felt she could not perform the duties of the
modified job. (WCJ’s Findings of Fact No. 5.)
In support of her review petition and in opposition to Employer’s
suspension petition, Claimant presented the deposition testimony of Dr. Cabry, who
is board-certified in family and sports medicine. Dr. Cabry first saw Claimant on
December 10, 2012, at which time he confirmed her diagnosis of deQuervain’s
Syndrome. Dr. Cabry noted that deQuervain’s Syndrome typically results from
overuse and he related Claimant’s condition to her clerical work for Employer. Dr.
Cabry performed regenerative injection therapy on Claimant’s left wrist during this
visit, and performed the same procedure on Claimant’s right wrist during a second
visit on January 9, 2013. (WCJ’s Findings of Fact No. 8.)
Dr. Cabry testified that Claimant reported moderate relief from these
procedures but that she still had ongoing complaints of pain throughout the course of
her treatment. Dr. Cabry specifically opined that Claimant could not perform the
duties of the modified job offered by Employer. On cross-examination, Dr. Cabry
admitted that he was not aware that Claimant had ceased working as of July 2012 and
that said facts do not change his opinion as to the causation of Claimant’s right wrist
symptoms. Dr. Cabry also acknowledged that he imposed no restrictions on
Claimant’s work activities following her initial visit in December 2012, or during any
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subsequent visits until April 2013. Finally, Dr. Cabry agreed that Claimant could
perform sedentary work, such as sitting at a desk and answering phones. (WCJ’s
Finding of Fact No. 8.)
In support of its suspension petition, Employer offered the deposition
testimony of Louise Reaves, the Human Resources Director of the Democratic
Caucus of the House of Representatives, who had responsibility for employment
issues, including working with employees with workers’ compensation issues. Ms.
Reaves testified that Employer offered Claimant a job modified to meet restrictions
imposed by Dr. Elizabeth Post, the physician who examined Claimant on behalf of
Employer. The proposed job offer contained modified duties but no wage loss for
Claimant. The job was set to begin April 3, 2013, but Claimant did not appear for
the modified job, which remained available to Claimant. (WCJ’s Finding of Fact
Nos. 6.)
Employer also offered the deposition testimony of Dr. Post, who is
board-certified in neurological surgery. Dr. Post performed an independent medical
examination of Claimant on February 12, 2013, and found an ongoing problem of
deQuervain’s Syndrome, although she could not “specifically relate it to any incident
at work,” but had “no reason to doubt” that deQuervain’s Syndrome was the result of
repetitive stress at work. Dr. Post approved the modified job offered by the
Employer. (WCJ’s Finding of Fact No. 7.)
Ultimately, the WCJ issued a decision granting Claimant’s review
petition and granting Employer’s suspension petition as of April 3, 2013. In
rendering her decision, the WCJ rejected Claimant’s testimony as not credible
because (1) Claimant acknowledged volunteer and home activities inconsistent with
her professed symptoms; (2) Claimant was unable to obtain relief from a number of
4
“well-credentialed orthopedic surgeons with a subspecialty in the hands;” (3) “[t]he
Claimant has failed to adequately explain why and what portions of the light duty
employment offer made by the Employer , she felt she could not have performed in
light of her current activities;” and (4) “[t]he Claimant has failed to adequately
explain why she did not respond to the employment offer made by the Employer until
the day she was to return to work.” (WCJ’s Finding of Fact No. 9.) The WCJ
credited Ms. Reaves’s testimony, especially in light of the fact that “there is no
factual contest to the job offer being made and received by the Claimant” and Ms.
Reaves’s testimony was consistent with Claimant’s own testimony regarding the
modified job duties and Claimant’s failure to return to work. (WCJ’s Finding of Fact
No. 10.)
In resolving the differences of the medical experts, the WCJ found Dr.
Post more credible than Dr. Cabry based on experience and qualifications, Dr. Post’s
review of a broader array of medical records, and that “Dr. Cabry failed to adequately
explain why the Claimant could not perform the employment duties set firth [sic] in
the job offer in light of her activities of daily living, i.e., her volunteer activities along
with her home activities.” (WCJ’s Finding of Fact. No. 11.) Claimant appealed to
the Board, but the Board affirmed the WCJ’s decision.
On appeal to this Court,3 Claimant argues that the Board erred in
affirming the WCJ’s decision because the record lacks substantial and competent
evidence that she was capable of performing the modified job offered by Employer.
3
Our scope of review is limited to determining whether findings of fact are supported by
substantial evidence, whether an error of law has been committed, or whether constitutional rights
have been violated. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704; Meadow
Lakes Apartments v. Workers’ Compensation Appeal Board (Spencer), 894 A.2d 214, 261 n.3 (Pa.
Cmwlth. 2006).
5
More specifically, Claimant argues that the reasons stated by the WCJ for granting
Employer’s suspension petition, i.e., Claimant’s ability to perform volunteer and
home activities, her rejection of the opinions of respected orthopedic surgeons, her
ability to perform the modified job, and the WCJ’s credibility determinations with
respect to Dr. Post and Dr. Cabry were not supported in the record. We disagree.
An employer is faced with the following process when a job offer is
made:
(1) The employer must show that the employee has
recovered some or all ability, that is, a change in medical
condition;
(2) The employer must show that it offered referrals to
then-open jobs for which the employee has been given
medical clearance;
(3) The employee must then demonstrate that he or she
had in good faith followed up on the job referral; and,
(4) If the referral fails to result in a job, the claimant’s
benefits should continue.
Kachinski v. Workmen’s Compensation Appeal Board (Vepco Construction
Company), 532 A.2d 374, 380 (Pa. 1987).4
In a workers’ compensation proceeding, the WCJ is the ultimate fact
finder and is the sole authority for determining the weight and credibility of evidence.
Lombardo v. Workers’ Compensation Appeal Board (Topps Company, Inc.), 698
4
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, 1292-1293 (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).
6
A.2d 1378, 1381 (Pa. Cmwlth. 1997). “As such, the WCJ is free to accept or reject
the testimony of any witness, including medical witnesses, in whole or in part.” Id.The WCJ’s findings will not be disturbed on appeal when they are supported by
substantial, competent evidence. Greenwich Collieries v. Workmen’s Compensation
Appeal Board (Buck), 664 A.2d 703, 706 (Pa. Cmwlth. 1995). “Substantial evidence
is such relevant evidence which a reasonable mind might accept as adequate to
support a finding.” Berardelli v. Workmen’s Compensation Appeal Board (Bureau of
Personnel, State Workmen’s Insurance Fund), 578 A.2d 1016, 1018 (Pa. Cmwlth.
1990). Moreover, where both parties present evidence, it is irrelevant that the record
contains evidence which supports a finding contrary to that made by the WCJ; rather,
the pertinent inquiry is whether evidence exists that supports the WCJ’s findings.
Hoffmaster v. Workers’ Compensation Appeal Board (Senco Products, Inc.), 721
A.2d 1152, 1155 (Pa. Cmwlth. 1998).
In the present case, while Claimant argues that the reasons underlying
the WCJ’s grant of Employer’s suspension petition were not supported by substantial
evidence, Claimant’s argument actually constitutes an impermissible attempt to
relitigate the WCJ’s credibility determinations. As noted above, the WCJ accepted
the testimony of Dr. Post as credible and rejected any inconsistent testimony of Dr.
Cabry. Even under extensive cross-examination, Dr. Post repeatedly opined that
Claimant was capable of performing the duties of the modified job offered by
Employer. Further, the WCJ rejected Claimant’s testimony regarding her purported
inability to perform these duties as not credible. In this regard, the WCJ weighed
Claimant’s professed limitations with Claimant’s volunteer and home activities and
found Claimant able to perform the duties of the modified job. Finally, the WCJ
found the testimony of Ms. Reaves to be credible, which established an available job
7
within Claimant’s physical capabilities, at no wage loss, but which Claimant
nonetheless declined to accept. Further, Ms. Reaves noted that the modified job
remained available to Claimant after Claimant declined the position.
Because the testimony accepted as credible by the WCJ supports her
decision suspending Claimant’s benefits as of April 3, 2013, the date the modified job
was set to begin, the Board did not err in affirming the WCJ’s decision.
Accordingly, the order of the Board is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Patricia Brennan, :
Petitioner :
: No. 270 C.D. 2016
v. :
:
Workers’ Compensation Appeal :
Board (Commonwealth of :
Pennsylvania), :
Respondent :
ORDER
AND NOW, this 21st day of December, 2016, the order of the
Workers’ Compensation Appeal Board, dated January 28, 2016, is hereby
affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Patricia Brennan, :
: No. 270 C.D. 2016
Petitioner : Submitted: September 9, 2016
:
v. :
:
Workers’ Compensation Appeal :
Board (Commonwealth of :
Pennsylvania), :
:
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
DISSENTING OPINION
BY SENIOR JUDGE FRIEDMAN FILED: December 21, 2016
Because the evidence credited by the WCJ fails to establish that
Employer offered Claimant a position within her capabilities and restrictions, I
respectfully dissent.
Claimant worked for Employer for 13 years. (WCJ’s Findings of Fact,
No. 5a.) Her duties included inputting constituent complaints into a tracking system,
managing a legislator’s calendar on the computer, greeting people, putting away
supplies, filing, faxing, and data entry. (Id., No. 5b.) Claimant spent approximately
50% of her day on the computer. (Id.) Due to the repetitive motion at work,
Claimant sustained a left wrist strain and suffers from deQuervain’s Syndrome, which
results in constant wrist pain. (Id., Nos. 4, 5.) Claimant received benefits pursuant to
a notice of compensation payable. (Id., No. 4.)
Thereafter, Employer offered Claimant a position with duties similar to
her pre-injury position except that it was “Modified to Accommodate Limited
Typing/Filing Less Than Two (2) Hours Per Day.” (Job Description; Reaves Dep. at
9-10.) The modified job required Claimant to answer phones, greet visitors, manage
calendars and scheduling, maintain office supplies, prepare written correspondence,
and perform clerical duties including: typing, faxing, filing, and collating. (Job
Description.) Employer’s witness acknowledged that the modified position required
Claimant to type 55 words per minute, with no more than four errors, in order to
perform the duties of the modified position. (WCJ’s Findings of Fact, No. 6e).
Dr. Post, whose testimony the WCJ credited, acknowledged that
Claimant has deQuervain’s Syndrome, which was the result of repetitive stresses at
work. (Id., No. 7.) Claimant experiences constant wrist pain, which gets worse when
she types. (Id., No. 7d, h.) “[Claimant] was very clear to me that the one thing that
bothered her the most was the typing.” (Id., No. 7j.) Although Claimant’s “typing
should be limited,” Dr. Post opined that Claimant could work in a sedentary capacity.
(Id., No. 7g.) Dr. Post testified that Claimant could not perform her pre-injury job,
but Claimant could perform the modified job, which restricted her typing to less than
two hours. (Id.) Although not stated in the modified job description, Dr. Post
“presumed” that continuous typing would not be required. Dr. Post testified:
Q. So a combination of filing and typing it’s your
understanding [it] would be limited to less than two hours
per day?
RSF - 2 -
A. Yes.
Q. How do you arrive at that, Dr. Post, the two hour
criteria?
A. To some extent it’s arbitrary, but it doesn’t seem to
be a lot of time. It’s a very small percentage of the
workday. It didn’t seem to be unreasonable, and I presume
it would not be consecutive.
(Post. Dep., 10/14/13, at 29-30.) (Emphasis added).
I cannot agree with the majority that the modified job, which requires
Claimant to type 55 words per minute on a consecutive basis for up to two hours a
day, amounting to 25% of her workday, is within Claimant’s capabilities and
restrictions. Dr. Post’s testimony does not support the determination that Claimant
can perform the modified position. First, although Dr. Post acknowledged that typing
caused Claimant the most pain, Dr. Post “arbitrarily” determined that Claimant could
type for two hours. Secondly, Dr. Post “presumed” the modified position would not
require consecutive typing. However, the modified job description did not contain
this “presumption.” In fact, typing 55 words per minute was a requirement of the
modified job.
For the foregoing reasons, I respectfully dissent.
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge
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