M. Holmes v. WCAB (Bayada Home Health Care, Inc.) ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Monifa Holmes, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Bayada Home Health :
Care, Inc.), : No. 43 C.D. 2019
Respondent : Argued: November 12, 2019
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: December 12, 2019
Monifa Holmes (Claimant) petitions this Court for review of the
Workers’ Compensation (WC) Appeal Board’s (Board) December 17, 2018 order
affirming the Workers’ Compensation Judge’s (WCJ) decision suspending
Claimant’s WC benefits from May 13 to August 10, 2016, and denying and
dismissing Claimant’s Petition to Reinstate WC Benefits (Reinstatement Petition) and
Petition for Penalties (Penalty Petition). Claimant essentially presents two issues for
this Court’s review: (1) whether the Board erred by suspending Claimant’s benefits
from May 13 to August 10, 2016; and (2) whether the Board erred by denying
Claimant’s Reinstatement Petition.1 Upon review, we affirm in part, and vacate and
remand in part.
1
Claimant presents four issues in her Statement of Questions Involved: whether the Board
erred by upholding the WCJ’s decision (1) denying Claimant’s Reinstatement Petition after her
discharge; (2) finding Claimant rejected available work in bad faith; (3) concluding that Bayada
Home Health Care, Inc. (Employer) met its burden in opposing the Reinstatement Petition; and (4)
Background
In 2015, Claimant was employed as a part-time per diem private-duty
licensed practical nurse providing pediatric in-home or in-school care (i.e., field
work) approximately 25 to 32 hours per week for Bayada Home Health Care, Inc.
(Employer) clients. See Reproduced Record (R.R.) at 176a, 178a, 467a, 501a. As a
per diem employee, Claimant was not required to work, and Employer was not
obligated to offer her any specific days or number of hours. See R.R. at 206a, 467a,
583a. Claimant’s work days and hours varied depending on which available shifts
she elected to work. See R.R. at 206a, 466a-467a, 583a. During that time, Claimant
was also employed part-time by Saunders House Geriatric Center (Saunders House),
working every other Tuesday, Friday and weekend, as a floor charge nurse.2 See R.R.
at 176a, 461a-463a.
On April 22, 2015, Claimant injured her left shoulder while working for
Employer. On May 8, 2015, Employer issued a Temporary Notice of Compensation
Payable accepting Claimant’s injury as a left bicep sprain. See R.R. at 374a.
Claimant’s average weekly wage, initially calculated at $531.50 based upon her work
with Employer, was eventually increased to $972.14 to include her concurrent
employment with Saunders House.3 See R.R. at 633a-634a.
granting Employer’s Suspension Petitions. See Claimant Br. at 12-13. Since Claimant’s first three
issues are subsumed in this Court’s Reinstatement Petition analysis, they have been combined
herein. The two remaining issues will be addressed in reverse order because suspension and/or
modification necessarily precedes reinstatement.
2
Claimant did not return to work at Saunders House after her work injury, and Saunders
House eventually discharged her. See R.R. at 179a, 463a-465a. Claimant has not worked for
anyone other than Employer since April 22, 2015. See R.R. at 227a, 479a.
3
Claimant’s initial Statement of Wages was created before Employer was aware that
Claimant was concurrently employed by Saunders House. See R.R. at 135a. According to
Claimant’s initial Statement of Wages, Employer awarded her $475.50 per week based on her
$531.50 average weekly wage (calculated at $22.50/hour wage for days/evenings and $23.50/hour
wage for nights/weekends). See R.R. at 402a-406a, 520a-521a. However, at the September 12,
2016 WCJ hearing, Employer offered, and the WCJ admitted, an Amended Statement of Wages
2
Claimant treated for her injuries and, eventually, was referred to
orthopedic surgeon Anne E. Colton, M.D. (Dr. Colton). From April 22, 2015, until
Claimant underwent surgery on August 3, 2015, Claimant performed light-duty work
in Employer’s office 25 hours per week on “any days.” R.R. at 179a, 469a. After her
August 3, 2015 surgery, Claimant remained off work until she was released to return
to light-duty work. See R.R. at 180a. In January 2016, Claimant began attending
classes at Cecil Community College in Elkton, Maryland on Tuesday and Friday
mornings from 8:00 a.m. to 12:00 p.m.4 See R.R. at 458a-461a.
Orthopedic surgeon Todd M. Kelman, D.O. (Dr. Kelman) conducted an
independent medical examination (IME) of Claimant on February 2, 2016, after
which he diagnosed Claimant with “resolving left shoulder pain status post
debridement of a [superior labral anterior posterior(]SLAP[)] lesion, and tenotomy
with biceps tenodesis of the left shoulder, . . . [with] some residual left rotator cuff
tendonitis.” R.R. at 430a, 445a. Dr. Kelman determined that Claimant needed
approximately six to eight weeks of additional physical therapy, but that her
prognosis was good. See R.R. at 431a, 446a. He opined that Claimant could return
to work in a modified job without lifting, pushing or pulling over 15 to 20 pounds
below chest level, repetitive grasping or overhead reaching with her left arm. See
R.R. at 431a, 446a-447a, 601a. On February 25, 2016, Dr. Colton issued a status
note reflecting: “[Claimant] may continue with light/sedentary duty with no lifting,
pushing, pulling, carrying, or transferring greater than 20 [pounds].” R.R. at 600a.
By March 8, 2016 letter, Employer’s Director Debra Kent (Kent)
notified Claimant that a modified office job was available to her within her medical
reflecting that Claimant was paid $648.09 per week based upon a $972.14 average weekly wage.
See R.R. at 135a-136a, 633a-634a.
4
Claimant began taking classes at Delaware County Community College in the fall of 2014.
See R.R. at 460a. Due to her January 2015 move from Pennsylvania to Maryland and her April
2015 work injury, Claimant did not resume classes until January 2016. See R.R. at 459a-461a.
3
restrictions, and requested that she call Kent by March 15 to discuss it. See R.R. at
468a, 497a-499a, 599a. On March 9, 2016, Employer issued a Notice of Ability to
Return to Work based upon Dr. Kelman’s release of Claimant to modified-duty work.
See R.R. at 408a. At that time, Employer offered Claimant an ongoing 24 hours of
work per week (Tuesday, Thursday, Friday from 9:00 a.m. to 5:00 p.m.), which
matched her then-calculated $531.50 average weekly wage. See R.R. at 499a-500a,
504a, 507a-508a, 628a, 630a. On March 23, 2016, Claimant responded that since she
attended school on Tuesdays and Fridays, she could only work on Thursdays, and she
would begin on Thursday, March 31, 2016. See R.R. at 468a-470a, 499a-500a, 628a-
629a. Claimant worked from 10:00 a.m. to 5:00 p.m. on March 31, 2016, but since
she took an extended lunch break from 1:00 p.m. to 2:23 p.m., she only worked 5.5
hours that day.5 See R.R. at 500a-502a, 564a-565a, 602a.
On March 31, 2016, Employer filed a Petition to Suspend WC Benefits
effective March 15, 2016 (March 2016 Suspension Petition), because Claimant did
not accept Employer’s March 8, 2016 modified job offer. See R.R. at 5a-6a. In
response, Claimant admitted that Employer offered her a modified job, but not at her
pre-injury wage. See R.R. at 12a.
On April 5, 2016, Employer offered Claimant additional hours on
Wednesday, April 6, 2016, but Claimant declined. See R.R. at 504a-505a. On April
12, 2016, Dr. Colton declared: “[Claimant] is cleared to return to work with no
restrictions in regards [sic] to her left shoulder as of Monday[, April 18, 2016].” R.R.
at 605a. Claimant worked from 9:30 a.m. to 5:00 p.m. on Thursday, April 14, 2016.
See R.R. at 507a, 603a.
On April 22, 2016, Employer issued a Notice of Ability to Return to
Work based upon Dr. Colton’s release of Claimant to return to full-duty work. See
5
Claimant was permitted a 30-minute lunch break during an eight-hour shift. See R.R. at
503a.
4
R.R. at 410a. By April 22, 2016 letter, Employer offered Claimant work in her pre-
injury position that would allow her to meet her pre-injury $531.50 average weekly
wage. See R.R. at 509a, 604a. Specifically, on April 27, 2016, Employer offered
Claimant work from 8:00 a.m. to 6:00 p.m. on Tuesdays and Fridays beginning May
3, 2016, but Claimant refused the work because of her school schedule. See R.R. at
591a, 606a. Also on April 27, 2016, Employer offered Claimant a position beginning
May 4, 2016 working Wednesday, Friday and Saturday from 7:30 a.m. to 5:30 p.m.
that Claimant refused without stating a reason. See R.R. at 518a, 606a. Claimant did
however, attend her annual two-hour in-service training on April 25, 2016. See R.R.
at 510a. Claimant worked a shift on April 28, 2016, caring for an ambulatory 10-
year-old child whose care did not require heavy lifting. See R.R. at 510a, 513a-515a.
On April 27, 2016, Dr. Colton issued a work status note reflecting that “[Claimant]
may return to modified work on [April 28, 2016] with restriction being no heavy
lifting with [her] left arm.”6 R.R. at 611a.
On May 5, 2016, Employer filed a second Petition to Suspend WC
Benefits to have Claimant’s WC benefits suspended effective April 22, 2016 (May
2016 Suspension Petition) because Claimant had been released to her pre-injury
position as of April 18, 2016, and Employer offered Claimant her pre-injury job.7 See
R.R. at 15a-16a. In her response, Claimant asserted that she not could not return to
her pre-injury job. See R.R. at 23a.
Beginning on May 12, 2016, Employer offered Claimant numerous field
nursing shifts which Claimant declined because she was unavailable, preferred not to
6
Dr. Colton’s work status note does not appear to have a corresponding office visit. See
R.R. at 572a-574a, 595a.
7
Employer requested supersedeas in both the March 2016 and May 2016 Suspension
Petitions. See R.R. at 5a, 15a. After a hearing, the WCJ issued an interlocutory order on May 12,
2016, denying Employer’s supersedeas requests, thereby requiring Employer to continue to pay
Claimant’s WC benefits and reasonable and necessary medical expenses related to Claimant’s April
22, 2015 work injury. See R.R. at 27a, 29a.
5
lift over 40 pounds, or the assignment was not worth the travel. After Claimant’s
doctor issued new orders that Claimant was to avoid heavy lifting, Employer offered
Claimant nursing shifts within those restrictions. Claimant attended two new case
orientations and worked two other shifts between May 16 and May 26, 2016, but
declined other shifts and hours Employer offered to her.
On May 26, 2016, Claimant filed the Petition to Review WC Benefits
(Review Petition) and a request for penalties, claiming that her injury description and
average weekly wage were incorrect, and that her work injury caused a decrease in
her earning power.8 See R.R. at 31a-32a. On May 30, 2016, Employer denied the
allegations in Claimant’s Review Petition. See R.R. at 39a. On May 31, 2016,
Employer recorded that it received notice from Claimant’s doctor that Claimant “may
return to light duty with no lifting greater than 10 [pounds] and no overhead activity
with [her] left arm. She may not lift any patients alone.” R.R. at 631a.
Beginning on June 1, 2016, Employer began offering Claimant field
nursing shifts within her medical restrictions. Claimant accepted 10 shifts but only
worked 3. A client’s mother refused to allow Claimant to work one, and Claimant
called off the other 6.9 Claimant never worked in the field with Employer’s clients
after June 6, 2016. See R.R. at 539a, 587a. On June 24, 2016, Employer issued a
Notice of Ability to Return to Work based upon Dr. Colton’s June 14, 2016 report
releasing Claimant to return to work with lifting restrictions. See R.R. at 636a.
On July 15, 2016, Employer emailed Claimant regarding shifts available
caring for one client “within [her] restrictions” from July 18 through September 5,
8
The parties resolved the petition for penalties by stipulation in September 2016. See R.R.
at 136a-138a, 638a-639a.
9
Employer considers it calling off work if the employee gives fewer than 48 hours notice
that she will not work her scheduled shift. See R.R. at 540a. Scheduling off is when an employee
gives more than 48 hours notice that she will not work her scheduled shift. See R.R. at 540a.
Employer considers scheduled off as a scheduled day off, as opposed to a call-out. See R.R. at
540a.
6
2016 from 7:00 a.m. to 5:00 p.m. R.R. at 541a-542a, 616a. However, on July 18,
2016, Claimant declared that she is “able to do office work only.” R.R. at 540a-541a,
615a. After receiving official notification that Claimant was limited to light-duty
office work, Employer offered Claimant work it had available in the office three days
per week from 9:00 a.m. to 5:00 p.m. (i.e., 24 hours).10 Claimant accepted the part-
time office job and began working on July 21, 2016; but, due to Claimant’s breaks
and extended lunch periods, Claimant never worked a full 24 hours in any one week.
See R.R. at 186a-187a, 190a-191a, 543a, 552a. Moreover, Claimant’s job
performance did not meet Employer’s expectations.
Notwithstanding, by August 10, 2016 letter, Employer offered Claimant
ongoing office work within her restrictions for 40 hours per week (Monday through
Friday from 9:00 a.m. to 5:00 p.m.), which would allow her to earn close to her pre-
injury $972.14 average weekly wage.11 See R.R. at 186a, 211a-212a, 551a-553a,
557a, 595a, 626a. Claimant started working for Employer full-time on August 15,
2016. Notwithstanding, due to her breaks and extended lunch periods, Claimant only
worked 35 hours during the week of August 15, 2016, with no complaints related to
her work injury.
On August 19, 2016, Employer filed a Notice of Suspension or
Modification (Notice) changing Claimant’s partial disability benefits to $48.09 per
week effective August 15, 2016 because she was earning less than her time-of-injury
earnings. See R.R. at 764a. Claimant did not oppose the Notice, and even stated in
10
Kent described that only 24 hours per week were available to Claimant because other field
employees also worked in the office, and Kent could only offer Claimant hours that those field
employees were not already working. See R.R. at 557a.
11
Employer’s part-time administrative coordinator retired on July 15, 2016. See R.R. at
558a, 589a-590a. Knowing that Claimant needed the work, Kent made the additional office hours
available for Claimant, rather than hiring a new administrative coordinator. See R.R. at 558a-559a,
587a, 589a-590a.
7
her brief to this Court that she “agree[d] to . . . [m]odification of her benefits.”
Claimant Br. at 30; see also Claimant Br. at 20, 38, 48.
Claimant worked only 35 hours for Employer during the week of August
22, 2016, and did not express any physical problems related to her work injury. She
worked 40 hours during the week of August 29, 2016, also without physical difficulty
doing the job. See R.R. at 187a-190a, 203a, 211a, 245a-247a.
On Sunday, September 4, 2016, after being treated for chest pains and
palpitations, Claimant was ordered to remain off work September 5 through 7, 2016,
and she notified Employer.12 See also R.R. at 191a-194a, 214a-215a, 225a, 248a-
249a, 729a, 748a, 758a-759a. In Claimant’s absence, her office work backed up,
particularly Employer’s Medicare-regulated office filings. See R.R. at 732a.
Claimant underwent a second IME with Dr. Kelman on September 8,
2016, after which he recommended that Claimant continue her full-time sedentary
job, with no lifting, pushing or pulling more than 30 pounds below her chest, and no
overhead lifting greater than 5 to 10 pounds. See R.R. at 663a-664a, 693a-694a,
700a, 714a-717a. Claimant contends that, after her IME, her shoulder “was hurting
more than usual and . . . [pain] was radiating to [her] neck.” R.R. at 196a; see also
R.R. at 195a, 217a-221a.
Claimant returned to work on September 9, 2016. See R.R. at 194a-
195a, 215a-216a, 221a, 730a. Claimant worked a full day in Employer’s office, but
informed Employer that her “shoulder was hurting really bad. It flared up, and it --
radiat[ed] pain into [her] neck to the back of [her] shoulder.” R.R. at 195a; see also
R.R. at 217a. She was unable to obtain an appointment with Dr. Colton until
September 13, 2016, but attended physical therapy and also treated at Springfield
12
Claimant’s symptoms were not attributed to her work injury. See R.R. at 213a.
8
Hospital, where she was given pain medication and steroids and told to follow-up
with Dr. Colton. See R.R. at 195a, 197a, 217a.
A WCJ hearing was conducted on September 12, 2016. See R.R. at 65a.
At the WCJ hearing, Employer presented, inter alia, Claimant’s May 10, 2016
deposition, Dr. Kelman’s June 13, 2016 deposition and Kent’s August 16, 2016
deposition. See R.R. at 133a-134a. Employer also amended its March and May 2016
Suspension Petitions (collectively, Suspension Petitions) to Petitions to Modify WC
Benefits (Modification Petitions). See R.R. at 131a.
Claimant did not work in Employer’s office on Monday, September 12,
2016, but did work from 9:00 a.m. to 3:00 p.m. on September 13, 2016 without
complaint. See R.R. at 197a-198a, 223a, 730a-731a. September 13, 2016 was the
last day Claimant worked for Employer. See R.R. at 731a, 749a. On September 13,
2016, Dr. Colton ordered a cervical MRI, referred Claimant to another orthopedist
and directed that she remain off work until her MRI results were back. See R.R. at
198a, 202a, 205a, 223a-226a, 718a-722a. Claimant notified Employer. See R.R. at
739a, 741a, 746a, 750a. During the weeks of September 13, 2016 and September 19,
2016, Employer divided Claimant’s office tasks among three to five other employees
who stayed late to complete Claimant’s work. See R.R. at 731a-733a.
Claimant’s September 20, 2016 MRI showed multiple-level
degenerative changes in Claimant’s cervical spine, which Dr. Kelman concluded
were not related to Claimant’s work injury or anything that occurred during
Claimant’s September 8, 2016 IME, since such chronic degenerative changes take
time to form, and Claimant’s cervical spine examinations had been normal. See R.R.
at 205a, 649a, 666a.
9
On September 23, 2016, Claimant treated with Dr. Levenberg,13 who
recommended that Claimant follow up with pain specialist Gerald E. Dworkin, D.O.
(Dr. Dworkin) and undergo an EMG, which she did. See R.R. at 198a-199a, 205a.
Dr. Levenberg released Claimant to return to her light-duty office job on September
25, 2016. See R.R. at 206a. On September 23, 2016, Claimant emailed Employer at
3:33 p.m. advising Employer that she could return to work on Monday, September
26, 2016, but Employer notified her that the office job was no longer available. See
R.R. at 201a-202a, 226a-227a, 250a-251a, 732a-733a, 741a. According to Employer,
after covering Claimant’s job duties for nearly three weeks and not knowing when or
if she might return to work, on or about September 21 or 22, 2016, Employer hired
someone to perform Claimant’s clerical duties, and Employer’s clinical managers
thereafter conducted all case note readings. See R.R. at 733a-735a, 742a-743a, 749a.
On September 27, 2016, Claimant filed the Reinstatement Petition
seeking to have her total disability benefits reinstated effective September 26, 2016.
Therein, she alleged that, since she had been medically restricted to a sedentary job
which was no longer available to her, her earning power was again adversely affected
by her work injury. See R.R. at 42a. On October 3, 2016, Employer denied the
allegations in Claimant’s Reinstatement Petition, stating that Claimant had stopped
working for reasons unrelated to her work injury and, thus, her earnings loss was not
compensable. See R.R. at 50a.
On October 24, 2016, the WCJ conducted a hearing relative to the
Reinstatement Petition, at which Claimant’s counsel argued that Claimant’s benefits
must be reinstated because she was working her full-time light-duty position, but
“was let go” by Employer after she “missed a couple [of] days from work really in
13
Dr. Levenberg’s full name is not contained in the record.
10
part because of the work injury.”14 R.R. at 146a. Employer’s counsel argued that
Claimant’s full-time, light-duty position “would have been available had [] Claimant
continued working . . . , but [] Employer can’t just hold a position open indefinitely
while [] Claimant’s out alleging a new injury occurred at an IME exam.” 15 R.R. at
149a-150a.
On November 21, 2016, Claimant filed the Penalty Petition, claiming
that since Employer withdrew its light-duty job offer and she was unable to work her
pre-injury job, Employer violated the WC Act (Act).16 See R.R. at 53a. On
November 27, 2016, Employer denied the allegations in Claimant’s Penalty Petition.
See R.R. at 61a. A WCJ hearing was conducted on January 11, 2017, at which
Claimant presented her December 12, 2016 deposition, and the deposition of Dr.
Dworkin, and Employer presented Kent’s January 2017 deposition. See R.R. at 65a.
On May 22, 2017, the WCJ concluded:
Employer’s Petitions for Suspension and Modification are
granted. Based on Claimant’s concurrent wage and her
ability to return to work, Claimant’s benefits are modified
as follows: from March 27, 2016 through April 4, 2016 to
$288.09 per week; from April 5, 2016 through May 2, 2016
to $169.09 per week; from May 3, 2016 through May 12,
2016 to $235.60 per week; and, from May 13, 2016 through
August 10, 2016 benefits are suspended.
WCJ Dec. at 15. The WCJ also denied and dismissed Claimant’s Reinstatement and
Penalty Petitions. The WCJ further granted Claimant’s Review Petition to expand
her work injury to “status post debridement of a SLAP lesion and biceps tenodesis,”17
14
Claimant’s counsel represented to the WCJ that Claimant “was out for four days and
fired[.]” R.R. at 150a.
15
Claimant’s counsel clarified that Claimant was “not alleging a new injury[.]” R.R. at
150a.
16
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
17
Tenodesis is the surgical “release of the long-head biceps tendon where it anchors to the
area where the labrum is near the top, [that is] reattach[ed] a little further down, either with a screw
or a staple.” R.R. at 426a-427a.
11
and awarded Claimant’s counsel litigation costs. WCJ Dec. at 14. Claimant appealed
to the Board which affirmed the WCJ’s decision on December 17, 2018. Claimant
appealed to this Court.18
Discussion
Initially, Section 413(a) of the Act states, in pertinent part:
A [WCJ] . . . may, at any time, modify, reinstate, [or]
suspend . . . a notice of compensation payable . . . upon
petition filed by either party . . . , upon proof that the
disability of an injured employe has increased, decreased,
recurred, or has temporarily or finally ceased . . . . Such
modification, reinstatement, [or] suspension . . . shall be
made as of the date upon which it is shown that the
disability of the injured employe has increased, decreased,
recurred, or had temporarily or finally ceased[.]
77 P.S. § 772. “Under [the Act], the term ‘disability’ is synonymous with loss of
earning power.” Donahay v. Workers’ Comp. Appeal Bd. (Skills of Cent. PA, Inc.),
109 A.3d 787, 792 (Pa. Cmwlth. 2015). Therefore, “[i]f the reduction in earnings is
not tied to a loss of earning power attributable to the work injury, no disability
benefits are due.” Id. at 793.
1. Employer’s Suspension/Modification Petitions
Claimant argues19 that the Board erred by upholding the WCJ’s
suspension of Claimant’s benefits from May 13 to August 10, 2016 because, at the
September 12, 2016 hearing, Employer amended both Suspension Petitions to
18
“On review[,] this Court must determine whether constitutional rights were violated,
errors of law were committed, or necessary findings of fact were supported by substantial
competent evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d
598, 601 n.6 (Pa. Cmwlth. 2014).
19
Rather than being argued separately under a distinctively displayed heading as
Pennsylvania Rule of Appellate Procedure 2119(a) requires, Claimant addressed this issue in and
among Claimant’s argument that the denial of her Reinstatement Petition was not in accordance
with the facts or legal precedent. See Claimant Br. at 32-33.
12
Modifications Petitions, thereby withdrawing the Suspension Petitions. Claimant
further contends that the WCJ erred by suspending her benefits from May 13 through
August 10, 2016, when competent evidence and legal authority did not support the
WCJ’s conclusions that Claimant rejected available work in bad faith, and she was
only offered 24 hours per week.
Relative to Claimant’s procedural claim, “a suspension of benefits is
appropriate where the employer establishes that the claimant has recovered all of his
or her earning power; otherwise, benefits are only modified.” Se. Pa. Transp. Auth.
(SEPTA) v. Workers’ Comp. Appeal Bd. (Cunningham), 72 A.3d 814, 817 (Pa.
Cmwlth. 2013). The Pennsylvania Supreme Court has explained:
An important distinction exists as to the relief offered
between a suspension of benefits versus a modification of
benefits. When a claimant’s benefits are suspended, the
claimant no longer receives any [WC] benefits because the
claimant’s physical disability no longer adversely affects
her earning power since she can earn wages equal to or
greater than her pre-injury wages. However, when the
claimant’s benefits are modified, the claimant receives a
portion of her original [WC] benefits since her physical
disability only allows her to regain some, rather than all, of
her pre-injury earning capacity.
United Cerebral Palsy v. Workmen’s Comp. Appeal Bd. (Emph), 673 A.2d 882, 883
(Pa. 1996).
Employer filed the March 2016 Suspension Petition after Claimant was
approved for modified-duty work; Employer offered her a job within her restrictions
at “sufficient hours available which w[ould] allow [her] to meet [her] pre-injury
wage[,]” but Claimant refused the offer. R.R. at 599a. Employer filed the May 2016
Suspension Petition after Claimant was released to her pre-injury job as of April 22,
2016, and Claimant was offered work in her pre-injury position at her pre-injury
wage. See R.R. at 604a. However, in light of Claimant’s concurrent employment
13
and the Amended Statement of Wages recognizing Claimant’s actual average weekly
wage of $972.14, and the statement in each of Employer’s March 8, April 22, July 19,
2016 letters that she would be paid partial disability benefits in the event her work
injury prevented her from earning her average weekly wage, see R.R. at 599a, 604a,
617a, Employer’s March 8 and April 22, 2016 job offers purportedly matching
Claimant’s $531.50 average weekly wage did not actually equal Claimant’s pre-
injury wage. Therefore, Employer necessarily amended the Suspension Petitions to
Modification Petitions, and the WCJ properly awarded Claimant modified benefits
between March 27 and May 12, 2016.
At the September 16, 2016 WCJ hearing, Employer’s counsel stated: “I
filed two Suspension [P]etitions that I would like to amend to a Modification.” R.R.
at 131a. It would appear that, rather than withdrawing the Suspension Petitions,
Employer intended for modification to be added to or incorporated with its
suspension requests. Notably, Employer’s counsel also stated at the hearing:
“Employer’s still seeking a decision on its Suspension/Modification Petition[s] from
the date of the first job offer until Claimant eventually returned to work as of August
15, 2016[.]” R.R. at 130a-131a. In the May 22, 2017 decision, the WCJ ruled:
“Employer’s Petitions for Suspension and Modification are granted. . . . Claimant’s .
. . May 13, 2016 through August 10, 2016 benefits are suspended.” WCJ Dec. at 15
(emphasis added). Because the record supports that Employer did not withdraw the
Suspension Petitions but, rather, amended them to Suspension/Modification Petitions,
the WCJ did not err by modifying Claimant’s benefits for periods when she
“regain[ed] some, rather than all, of her pre-injury earning capacity[,]” and
suspending Claimant’s benefits for periods when her “physical disability no longer
adversely affect[ed] her earning power[.]”20 United Cerebral Palsy, 673 A.2d at 883.
20
Even assuming, arguendo, that the Suspension Petitions were withdrawn, the WCJ was
nevertheless authorized to suspend Claimant’s benefits.
14
Relative to Claimant’s merits argument that the WCJ erred by
suspending her benefits between May 13 through August 10, 2016, this Court has
declared:
The employer has the burden of proving that the claimant’s
work-related injury has improved sufficiently for the
claimant to return to work and that a job the claimant is
capable of performing is available to the claimant; once the
employer meets this burden, the burden shifts to the
claimant to demonstrate that he or she responded to the job
offer in good faith.[21]
SEPTA, 72 A.3d at 817. “‘If the claimant does not exercise good faith, then h[er]
benefits can be modified [(i.e., suspended)].’”22 Dixon v. Workers’ Comp. Appeal Bd.
Although suspensions[] are generally reviewed after an employer files
a petition, this Court has held:
[A] WCJ has authority to suspend[] a claimant’s benefits in
the absence of a formal petition where doing so would not
be prejudicial to the claimant, i.e., the claimant is put on
notice that a suspension[] is possible and is given the
opportunity to defend against it. . . .
Krushauskas v. Workers’ Comp. Appeal Bd. (Gen. Motors), 56 A.3d
64, 71 (Pa. Cmwlth. 2012).
Furnari v. Workers’ Comp. Appeal Bd. (Temple Inland), 90 A.3d 53, 63 (Pa. Cmwlth. 2014)
(emphasis added).
Here, Employer’s Suspension Petitions clearly placed Claimant on notice well before the
September 12, 2016 hearing that Employer did not intend to pay Claimant benefits for periods
during which her disability was not caused by her work injury. Claimant had the opportunity to and
did respond to the Suspension Petitions. In addition, Employer’s mere amendment of the
Suspension Petitions to Modification Petitions at the hearing did not make Claimant eligible for
modified WC benefits to which she was not legally entitled. Based upon the totality of the
circumstances, Claimant would not have been prejudiced by the WCJ suspending her benefits from
May 13 to August 10, 2016 without the Suspension Petitions.
21
“In this context, [lack of good faith (i.e.,] bad faith[)] does not mean ‘overt malfeasance
on the part of the claimant, but is merely the characterization of [the c]laimant’s action for refusing
to follow up on a job referral without a sufficient reason.’” Napierski v. Workers’ Comp. Appeal
Bd. (Scobell Co., Inc.), 59 A.3d 57, 61 (Pa. Cmwlth. 2013) (quoting Johnson v. Workmen’s Comp.
Appeal Bd. (McCarter Transit, Inc.), 650 A.2d 1178, 1180 (Pa. Cmwlth. 1994)).
22
The term modified in this suspension context, as in the cited cases, means changed or
altered, rather than modified versus suspended. See Dixon v. Workers’ Comp. Appeal Bd. (Medrad,
15
(Medrad, Inc.), 134 A.3d 518, 522 (Pa. Cmwlth. 2016) (quoting Bey v. Workers’
Comp. Appeal Bd. (Ford Electronics), 801 A.2d 661, 666 (Pa. Cmwlth. 2002)); see
also Darrall v. Workers’ Comp. Appeal Bd. (H.J. Heinz Co.), 792 A.2d 706, 714 (Pa.
Cmwlth. 2002).
In determining whether the WCJ properly concluded that Employer met
its burden and Claimant did not, this Court must determine whether substantial
evidence supported the WCJ’s factual findings. Stepp v. Workers’ Comp. Appeal Bd.
(FairPoint Commc’ns, Inc.), 99 A.3d 598 (Pa. Cmwlth. 2014). “Substantial evidence
is such relevant evidence as a reasonable person might accept as adequate to support
a conclusion.” Washington v. Workers’ Comp. Appeal Bd. (State Police), 11 A.3d 48,
54 n.4 (Pa. Cmwlth. 2011) (quotation marks omitted).
In the instant matter, during Kent’s depositions, Employer presented
Claimant’s work status notes, return to work evaluations, job offer letters, schedules,
failure to accept suitable work notices, emails, weekly time slips, earnings statements
and call-off records that established Employer’s numerous job/shift offers, when
Claimant worked, when she declined jobs/shifts and the reasons therefor.
Kent described that she directs the largest Bayada office, with “tons of
clients” and “open[ing]s every day, every shift.” R.R. at 525a. She acknowledged
that, as a nurse working in the field, Claimant was “a per diem employee. She ha[d]
no requirement to work any number of hours[,]” and it would not be unusual for
Claimant to accept some jobs and decline others. R.R. at 583a.
Specifically regarding the period between May 13 and August 10, 2016,
Kent testified that, based upon Dr. Colton’s notification that Claimant could return to
her pre-injury job without restrictions, on May 12, 2016, Employer offered Claimant
a full-time assignment working Monday through Sunday from 7:00 a.m. to 4:00 p.m.
Inc.), 134 A.3d 518 (Pa. Cmwlth. 2016); Darrall v. Workers’ Comp. Appeal Bd. (H.J. Heinz Co.),
792 A.2d 706 (Pa. Cmwlth. 2002).
16
beginning May 13, 2016, which she declined, stating merely that she was not
available. See R.R. at 521a, 607a. Also on May 12, 2016, Employer offered
Claimant a job for Saturday, May 14, 2016 from 9:30 a.m. to 5:00 p.m., which
Claimant refused because she only wanted jobs requiring her to lift 40 pounds or less,
and the scheduled client was too heavy. See R.R. at 520a, 606a. In addition, on May
12, 2016, Employer offered Claimant an assignment beginning May 17, 2016, on
Monday and Tuesday from 9:00 a.m. to 1:00 p.m., which Claimant refused because it
was too far to travel for a four-hour shift. See R.R. at 524a, 608a.
On May 16, 2016, Claimant attended orientation on a new case and
accepted two shifts on that case, but did not work either of them. See R.R. at 523a,
530a. Claimant was scheduled to work on Thursday, May 19, 2016 from 11:00 p.m.
to 7:00 a.m., but emailed Employer that her doctor issued new orders that she was to
avoid heavy lifting; that evening, she called off her scheduled shift due to arm pain.
See R.R. at 523a, 527a-528a, 610a. Claimant was also scheduled to work on
Saturday, May 21, 2016 from 9:00 a.m. to 3:00 p.m., but she called off because she
was not comfortable working with the client. See R.R. at 523a, 529a, 609a.
However, Claimant worked on May 24, 2016 from 7:15 a.m. to 5:00 p.m. and May
26, 2016 from 7:00 a.m. to 4:00 p.m. with a client (she worked with in April) who
required no lifting, and she oriented (observed) regarding a new client on May 25,
2016 for 7.5 hours. See R.R. at 533a-534a.
Kent stated that, on June 1, 2016, Claimant informed Employer that,
“[a]s of [May 31, she’s] on light duty” but was waiting for her work assignment.
R.R. at 531a, 612a. That same day, Employer offered Claimant several nursing shifts
within those restrictions. Specifically, Employer offered and Claimant worked two
shifts that did not require lifting on June 2, 2016 from 7:00 a.m. to 5:00 p.m., and on
June 3, 2016 from 7:00 a.m. to 4:30 p.m. See R.R. at 535a, 580a-582a, 613a. By
June 2, 2016 email, Employer also offered Claimant a job with an infant on Fridays
17
from 7:30 a.m. to 6:30 p.m., or overnights Fridays, Saturdays and Sundays from
10:30 p.m. to 6:30 a.m. See R.R. at 614a. On June 3, 2016, Claimant responded that
she is “on light duty and can’t raise [her] arm or lift more than 10 [pounds.]” R.R. at
614a.
On June 6 and 10, 2016, Claimant accepted shifts working from 10:30
a.m. to 3:15 p.m. Claimant worked on June 6, 2016; however, after receiving notice
from the client’s school that Claimant was being rough with the child, the client’s
mother declined to have Claimant work with him on June 10. See R.R. at 536a, 538a-
539a. Claimant accepted shifts on June 23, 25, 27, 29, 30 and July 2, 2016, but she
ultimately scheduled off for all of them. See R.R. at 539a. Claimant never worked in
the field with Employer’s clients after June 6, 2016. See R.R. at 539a, 587a.
On July 15, 2016, Employer emailed Claimant regarding the availability
of shifts with a client “within [her] restrictions” on Monday, July 18 from 7:00 a.m.
to 5:00 p.m., Wednesday, August 24 from 7:00 a.m. to 5:00 p.m., Thursday, August
25 from 7:00 a.m. to 5:00 p.m., Monday, August 29 from 7:00 a.m. to 5:00 p.m.,
Friday, September 2 from 7:00 a.m. to 5:00 p.m., Saturday, September 3 from 8:00
a.m. to 4:00 p.m., and Monday September 5 from 7:00 a.m. to 5:00 p.m. See R.R. at
541a-542a, 616a. On July 18, 2016, Claimant responded to Employer that she was
“able to do office work only.” R.R. at 540a-541a, 615a.
Kent confirmed that, on July 19, 2016, after receiving official
notification from Dr. Colton that Claimant was limited to light-duty office work,
Employer offered Claimant work it had available in the office three days per week
from 9:00 a.m. to 5:00 p.m. (i.e., 24 hours), during which Claimant would be required
to make phone calls, fax, email, read clinical notes23 and file papers. Employer
23
Kent explained that one of Claimant’s office functions was to review patient clinical notes
before they are placed on file to insure that the documentation is complete and accurate. See R.R. at
592a-594a, 731a. For example, if a note references a patient fall, the reviewer would make sure an
incident report was also filed and cross-referenced. See R.R. at 593a-594a. Medicare regulations
18
offered Claimant ongoing office work three days per week from 9:00 a.m. to 5:00
p.m., beginning on Wednesday, July 20, Thursday, July 21, Friday, July 22, Monday,
July 25, Tuesday, July 26 and Wednesday, July 27, 2016. See R.R. at 542a, 544a-
546a, 617a. Claimant began the part-time office position on July 21, 2016. On July
29, 2016, Employer emailed Claimant her schedule for her office work for the
upcoming two weeks: August 1, 2, 4, 9, 10 and 12. See R.R. at 550a-551a, 588a,
622a-623a. Kent recalled that “[e]ight hours a day [were] available, but [Claimant
was] not really achieving that[,]” R.R. at 552a, since Claimant rarely worked the full
24 hours each week.
According to Kent and Claimant’s time slips, Claimant worked on July
21, 2016 from 12:00 p.m. to 5:00 p.m., on July 22, 2016 from 9:00 a.m. to 5:00 p.m.,
on July 25 from 8:45 a.m. to 1:45 p.m. and then 4:15 p.m. to 5:00 p.m., on July 26,
2016 from 8:45 a.m. to 4:45 p.m., on July 27, 2016 from 9:00 a.m. to 1:15 p.m. and
then 2:45 p.m. to 5:00 p.m., on August 1, 2016 from 9:00 a.m. to 1:20 p.m. and then
2:45 p.m. to 5:00 p.m., on August 2, 2016 from 9:00 a.m. to 1:20 p.m. and then 3:15
p.m. to 5:00 p.m., on August 4, 2016 from 9:00 a.m. to 1:15 p.m. and then 3:00 p.m.
to 5:00 p.m., on August 9, 2016 from 10:00 a.m. to 12:45 p.m. and then 2:30 p.m. to
5:05 p.m., on August 10, 2016 from 9:00 a.m. to 1:15 p.m. and then 2:45 p.m. to 5:00
p.m., and on August 12, 2016 from 9:00 a.m. to 12:45 p.m. and then 2:25 p.m. to 5:00
p.m. See R.R. at 542a-543a, 620a-621a, 624a-625a, 627a.
Based upon Employer’s records, Claimant worked:
Week of July 18, 2016 (Claimant started July 21) = 13 of 16
hours (see R.R. at 543a, 621a)
Week of July 25, 2016 = 21.50 of 24 hours (see R.R. at
543a, 620a)
require that Employer place patient care notes on file within seven days. See R.R. at 732a. If
Medicare audited Employer and discovered record deficiencies, Employer would be subject to a
plan of action, possibly including its services being put on hold. See R.R. at 735a.
19
Week of August 1, 2016 = 19.45 of 24 hours (see R.R. at
549a, 623a-624a)
Week of August 8, 2016 = 18.40 of 24 hours (see R.R. at
549a-550a, 625a)
Kent recalled that, after Claimant complained about her physical
therapist, and said she did not want to go on her days off, Kent recommended that
Claimant attend physical therapy approximately 7 minutes from the office in Paoli, so
Claimant could undergo therapy during her work day lunch hours. See R.R. at 546a-
548a. In Kent’s personal physical therapy experience the year before, the whole
process, including travel to and from the office, took only 55 minutes. See R.R. at
547a. Kent stated that Claimant took more extended time periods.24 See R.R. at
546a-547a.
However, Kent was not sure that Claimant’s missed work time from July
21 to August 12, 2016 was due to physical therapy. See R.R. at 745a. She described
that, on August 10, 2016, Claimant arrived at 9:00 a.m., left at 9:15 a.m. for 1.5 hours
and then returned and worked until 5:00 p.m. See R.R. at 552a, 627a. When asked
by counsel where Claimant went, Kent responded:
She doesn’t tell us where she goes. I think there are times
when she goes to therapy. There are times when she’s
outside talking on the phone. There are times when we
think she’s in the bathroom, but she’s gone for an hour. It’s
hard to say. All I can do is clock when she comes in.
R.R. at 552a; see also R.R. at 745a.
Kent further testified that Claimant’s office work consisted primarily of
making phone calls, reading clinical notes and faxing. She continued:
24
Kent described an incident on July 27, 2016, when Claimant caused an angry scene in the
office and refused to sign her time sheet reflecting that she had taken lunch from 1:15 p.m. to 2:45
p.m., because she insisted Employer should pay for her therapy time. See R.R. at 543a-544a, 620a.
Kent explained that Employer was providing what light-duty hours were available, and that
reimbursement would be through the WC process. See R.R. at 589a.
20
A. . . . . We stopped doing filing because the performance
just was not good. We were having a lot of trouble. Just
generally the clerical duties, the performance has been a
huge challenge for us.
Q. What do you mean by that?
A. I mean like I don’t know whether she’s not paying
attention or she’s on her phone or what’s happening, but
what we’re finding is things are in the wrong place, they’re
in the wrong client’s chart. Even the alphabetizing that we
had her do, there’s things that should be in A and we find it
in D. I can’t really come up with a good reason for why,
but we’ve been challenged to find things that she will
produce a quality product that we could give her enough
work to keep her busy but not have to worry about the
quality of the product. I mean our client charts are really
important, so we can’t have somebody doing filing if
[he/she is] not going to do a good job. So we’ve been
trying to concentrate on things that are simple, like phone
calls and faxing and making packets and that kind of stuff.
R.R. at 555a. On cross-examination, Kent reiterated that, as of August 16, 2016:
[Claimant was] not filing at all anymore[;]. . . she wasn’t
doing great with the filing. She wasn’t doing great with the
alphabetizing. She seemed to do okay with [] calling the
field employees like to remind them of their in-service, that
seemed to work out okay. It didn’t work out great making
up the packets. We found a lot of errors. For example,
we[’]re very regulated, so our pre-employment pack has to
have very specific forms in very specific order, like these
forms on the left-hand side of the folder and these forms on
the right-hand of the folder. And we had her making up
packets, pre and post conditional offer packets, that didn’t
go great. There were some errors there.
Calling field employees seemed to work out okay. The
faxing the physicians, that seemed to work out okay. The
clinical filing did not work out okay. The reading of the
clinical notes, as far as I can tell, it seems like that has
worked out okay. I mean it’s harder for me to know what
the quality of the work is on that because if she doesn’t see
something in a note that she read, it wouldn’t be until and
unless a . . . Clinical Manager, happened to read that same
21
note and say, oh[] my God, I see something. [Claimant]
read this note and she didn’t tell me. So it would be harder
for me to know that. But what I’ve heard thus far is it
seems like that’s going okay. So some of the things have
gone okay, some of the things not so much.
R.R. at 591a-592a.
Q. Was that due to a physical inability to do that work or
was it lack of effort?
A. It’s hard to say. There was never a physical -- she never
complained of any physical -- none of those are very
physical jobs.[25] There were just a lot of errors. I mean
there just were. If you ask my opinion, my opinion is she
spends way too much time on her phone while she’s here.
And I have discussed that with her. I think that’s one
problem is like [sic] attention span. I don’t know, I’ve
thought, you know, does she not want to be here and so
she’s not doing a good job because then I won’t have her
here. I don’t know. It’s hard to say. . . .
Q. Has she expressed any difficulties performing this
sedentary job that you’ve offered her in the office?
A. No.
R.R. at 594a-595a.
The law is well established that “[t]he WCJ is the ultimate factfinder and
has exclusive province over questions of credibility and evidentiary weight.” Univ. of
Pa. v. Workers’ Comp. Appeal Bd. (Hicks), 16 A.3d 1225, 1229 n.8 (Pa. Cmwlth.
2011). “The WCJ, therefore, is free to accept or reject, in whole or in part, the
testimony of any witness, including medical witnesses.” Griffiths v. Workers’ Comp.
Appeal Bd. (Red Lobster), 760 A.2d 72, 76 (Pa. Cmwlth. 2000).
Here, the WCJ made the following relevant findings of fact:
25
Kent stated that lifting binders out of drawers was the most physical thing Claimant had to
do in the office. See R.R. at 556a, 559a. She recalled that her administrative assistant Emily
Johannesen had been giving Claimant fewer clinical note reviews, so Claimant would not have to
lift the binders. See 749a-750a.
22
33. This [WCJ] has carefully reviewed Claimant’s
testimony and she is found not credible. Claimant’s
testimony is rebutted by the credible testimony of [] Kent
concerning the sedentary jobs offered to Claimant and her
acceptance of some of the shifts and refusal of others. []
Kent’s testimony is corroborated by office documentation
as well as Claimant’s e[]mails. In addition, Claimant’s
testimony is internally inconsistent in that she admits that
she could work the sedentary job offered to her and that she
received the Notice of Ability to Return to Work documents
yet she did not try to work the sedentary shifts offered to
her. In addition, Claimant’s testimony that she never had
any complaints about her job performance is not accepted
as fact. The fact that Claimant was no longer given filing to
do because of her poor performance is more credible than
Claimant’s statements. . . . This [WCJ] finds that when
Claimant’s attempts to return to work at various times
are review[ed] as a whole, she did not exercise good faith
in her attempts to return to work. Claimant’s testimony
is just not credible or persuasive and is rejected.
34. The depositions of [] Kent have been reviewed and are
found to be credible and persuasive. [] Kent testified in
great detail of Employer’s efforts to always meet
Claimant’s restrictions and the large amount of shifts
available to Claimant both full duty and sedentary duty.
Claimant’s bad faith in her return to work are documented
by letters, e[]mails and time cards. The testimony of []
Kent is accepted as fact.
WCJ Dec. at 13.
Neither the Board nor the Court may reweigh the evidence or the WCJ’s
credibility determinations. Sell v. Workers’ Comp. Appeal Bd. (LNP Eng’g), 771
A.2d 1246 (Pa. 2001). Specifically, “Section 422(a) [of the Act, 77 P.S. § 834,] does
not permit a party to challenge or second-guess the WCJ’s reasons for credibility
determinations. [Thus, u]nless made arbitrarily or capriciously, a WCJ’s credibility
determinations will be upheld on appeal.”26 Pa. Uninsured Emp’rs Guar. Fund v.
26
Capricious disregard “occurs only when the fact-finder deliberately ignores relevant,
competent evidence.” Williams v. Workers’ Comp. Appeal Bd. (USX Corp.-Fairless Works), 862
23
Workers’ Comp. Appeal Bd. (Lyle), 91 A.3d 297, 303 (Pa. Cmwlth. 2014) (quoting
Dorsey v. Workers’ Comp. Appeal Bd. (Crossing Constr. Co.), 893 A.2d 191, 195
(Pa. Cmwlth. 2006)). Finally, this Court has held:
‘In performing a substantial evidence analysis, this [C]ourt
must view the evidence in a light most favorable to the
party who prevailed before the factfinder.’ ‘Moreover, we
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.’ It does not matter if there is
evidence in the record supporting findings contrary to those
made by the WCJ; the pertinent inquiry is whether the
evidence supports the WCJ’s findings.
3D Trucking Co., Inc. v. Workers’ Comp. Appeal Bd. (Fine & Anthony Holdings
Int’l), 921 A.2d 1281, 1288 (Pa. Cmwlth. 2007) (citations omitted) (quoting
Waldameer Park, Inc. v. Workers’ Comp. Appeal Bd. (Morrison), 819 A.2d 164, 168
(Pa. Cmwlth. 2003)).
Claimant’s argument that the May 13 through August 10, 2016
suspension was improper because she was offered hours earning less than her pre-
injury wage until Employer offered her full-time office work on August 10, 2016 is
not supported by the evidence the WCJ found credible. Kent made clear that
Employer had available as many shifts and hours as Claimant desired to work in the
field. Employer offered Claimant numerous shifts, which Claimant declined (by
calling off, or because she felt a client was too heavy – despite that she no longer had
lifting restrictions, she was busy or it was too far to travel to), so Claimant worked
only four shifts between May 16 and May 26, 2016, two of which were new case
orientation sessions.
On June 1, 2016, after being notified that Claimant could only perform
light-duty nursing work subject to restrictions, Employer offered Claimant several
A.2d 137, 145 (Pa. Cmwlth. 2004). Capricious disregard, by definition, does not exist where, as
here, the WCJ expressly considered and rejected the evidence. Williams.
24
nursing shifts within those restrictions, and Claimant accepted 10 shifts, but only
worked 3. On July 15, 2016, Employer emailed Claimant regarding several nursing
shifts available in July, August and September within her restrictions, in response to
which Claimant declared that she was only able to do office work.
On July 19, 2016, after receiving official notification that Claimant was
limited to light-duty office work, Employer offered Claimant the most office hours it
had available. Notwithstanding that Claimant accepted and undertook the part-time
office position, due to Claimant’s extended breaks and lunch periods, Claimant
worked only approximately 72 of the 88 part-time hours Employer offered to her
through August 12, 2016. On August 10, 2016, Employer extended Claimant the
full-time office job offer beginning August 15, 2016.
Employer established by credible record evidence that Claimant’s work-
related injury improved sufficiently for her to work, and that Employer made jobs
available to Claimant that she was capable of performing. See SEPTA. Therefore,
the burden shifted to Claimant to demonstrate that she responded to the job offers in
good faith. See id. As a per diem employee, Claimant could accept some jobs and
decline others. Despite that Employer consistently and repeatedly offered Claimant
various jobs and shifts within whatever restrictions she was subject to at the time,
Claimant did not accept work that would allow her to earn anywhere close to the 25
to 32 hours she previously worked for Employer, let alone her pre-injury wage, nor
did she credibly establish that her reasons for declining or calling off work were due
to her work injury. Thus, this Court concludes that Claimant did not demonstrate
good faith in accepting work offered by Employer within her physical limitations.
Because substantial record evidence supports the WCJ’s decision suspending
Claimant’s benefits from May 13 through August 10, 2016, the Board properly
upheld that portion of the WCJ’s decision.
25
2. Claimant’s Reinstatement Petition
Claimant also contends that the WCJ erred by denying her
Reinstatement Petition. In particular, Claimant asserts that the WCJ failed to
examine the relationship between her discharge and her work injury, and erred by
concluding that Employer met its burden in opposing the Reinstatement Petition.
Claimant contends that but-for Employer withdrawing her light-duty office position,
she was able to continue working. See R.R. at 202a.
The law regarding reinstatement following suspension is well settled:
A claimant seeking reinstatement of suspended benefits
must prove that: (1) h[er] earning power is once again
adversely affected by the work-related injury; and, (2) the
disability that gave rise to the original claim continues.
Bufford v. Workers’ Comp. Appeal Bd. (N. Am[.] Telecom),
. . . 2 A.3d 548 ([Pa.] 2010); Teledyne McKay v.
Workmen[’s] Comp. Appeal Bd. (Osmolinski), 688 A.2d
259 (Pa. Cmwlth. 1997). Once the claimant meets this
burden, the burden shifts to the party opposing
reinstatement to show that the claimant’s loss in earnings is
not caused by the disability arising from the work injury.
Bufford.
[Generally, u]nder a suspension of benefits, . . . an
employer remains responsible for the consequences of a
work injury. Magulick v. Workers’ Comp. Appeal Bd.
(Bethlehem Steel), 704 A.2d 176 (Pa. Cmwlth. 1997). This
is because the injury is presumed to continue, yet a claimant
suffers no related loss of income. Id. . . .
Dougherty v. Workers’ Comp. Appeal Bd. (QVC, Inc.), 102 A.3d 591, 595 (Pa.
Cmwlth. 2014).
This Court acknowledges that “[t]he burden of proof . . . is different
when a modification [(i.e., suspension)] of benefits occur[red] due to the claimant’s
bad faith.” Ward v. Workers’ Comp. Appeal Bd. (City of Phila.), 966 A.2d 1159,
1162 (Pa. Cmwlth. 2009); see also Napierski v. Workers’ Comp. Appeal Bd. (Scobell
Co., Inc.), 59 A.3d 57 (Pa. Cmwlth. 2013). Under those circumstances, in order to
26
have total disability benefits reinstated, “the claimant must establish h[er] medical
condition worsened to the point [s]he can no longer perform the employment
previously found available.” Ward, 966 A.2d at 1162; see also Napierski.27
This Court has explained:
In the case of an employee who has accepted and performed
the light-duty job, the focus of the inquiry is on the
employee’s reason for losing the job . . . . Where, however,
the employee has not even accepted the proffered light duty
job at the outset, this same principle does not apply because
the employee, being at that time unemployed as a result of
his rejection of acceptable employment, has no earnings to
lose. In this situation, the inquiry is to determine whether
the employee acted in ‘good faith’ in refusing the job in the
first instance.
Johnson v. Workmen’s Comp. Appeal Bd. (McCarter Transit, Inc.), 650 A.2d 1178,
1181-82 (Pa. Cmwlth. 1994) (quotation marks omitted).
Here, the parties and their medical witnesses agree that Claimant’s work-
related injury limited her to light-duty office work, Claimant accepted Employer’s
August 10, 2016 job offer, and Claimant began working in Employer’s office full-
time on August 15, 2016. According to Employer’s documentation, due to
Claimant’s breaks and extended lunch periods, Claimant worked 35 hours for
Employer during the weeks of August 15, 2016 (August 15, 16, 17, 18, 19) and
27
[O]nce a claimant has refused an available job in bad faith, h[er]
employer’s obligation to show job availability ends. . . . The claimant
must ‘live with the consequences of [her] decision,’ meaning that
[s]he cannot remedy the situation ‘by subsequent action’ such as
attempting to accept the job that was previously offered. Johnson,
650 A.2d at 1182. Instead, the claimant must show a worsening of
h[er] medical condition to be granted a reinstatement to total
disability. Ward, 966 A.2d at 1162.
Napierski, 59 A.3d at 62. “It matters not that an employer might be able to provide another job for
the claimant; it cannot be forced to do so more than once.” Id. at 63.
27
August 22, 2016 (August 22, 23, 24, 25, 26), and eventually worked 40 hours during
the week of August 29, 2016 (August 29, 30, 31, September 1, 2). See R.R. at 187a-
190a, 203a, 211a, 245a-247a. Kent described that, although Claimant did not
necessarily work 40 hours, she worked “pretty much full-time through September 2[,
2016,]” without physical difficulty doing the job. R.R. at 728a.
Kent recalled the Claimant was off work from September 5 to 8, 2016
due to chest pains not related to her work injury. Kent described that, with the
exception of her extended lunch break, Claimant worked a full day on Friday,
September 9, 2016. See R.R. at 729a-730a. She testified that Claimant called off
Monday, September 12, 2016 “because her arm [wa]s still in pain.” See R.R. at 730a.
Kent represented:
[Claimant] said she went to the [emergency room] again
over the weekend, and [was told] she may have a pinched
nerve, but that she should see her own doctor. She said she
has a note proving she went to the hospital, but has yet to
make an appointment with her doctor because they’re [sic]
on vacation.
R.R. at 730a. Thereafter, Claimant worked on September 13, 2016, but only until
3:00 p.m. See R.R. at 730a-731a. Claimant treated with Dr. Colton on September 13,
2016. September 13, 2016 was the last day Claimant reported for work.
According to Dr. Colton, Claimant’s treatment on September 13, 2016
was for “left shoulder pain” that she claimed increased after Dr. Kelman had her
perform dynamometer testing28 during her September 8, 2016 IME. R.R. at 718a; see
also R.R. at 660a. She also complained of intermittent tingling and numbness and a
burning sensation down her left arm and on the left side of her face, for which Dr.
Colton ordered a cervical MRI. See R.R. at 718a. Dr. Colton ordered Claimant to
28
The test was of Claimant’s forearm strength to her elbow, and required only that she
squeeze her fingers around the device. See R.R. at 659a-661a.
28
remain off work pending the MRI and re-evaluation. Dr. Kelman testified that
Claimant did not complain of cervical issues during her September 8, 2016 IME, and
he did not relate Claimant’s cervical complaints to her work injury.
Kent acknowledged that Employer received Dr. Colton’s September 13,
2016 work status note that “[Claimant] will remain out of work until re[-]evaluation
after an MRI is completed.” R.R. at 757a; see also R.R. at 739a-740a, 750a. Kent
expressed that, although Employer did not hear from Claimant again for 10 days, she
was not unaware of why Claimant was off work.29 See R.R. at 733a, 739a-740a,
757a.
Kent further recalled that, when Claimant informed Employer on
September 23, 2016, that she could return to work as of September 26, 2016, Kent
informed Claimant that the light-duty office job was no longer available. See R.R. at
732a-733a, 741a-744a, 750a-751a. Kent confirmed that Employer replaced Claimant
and hired an additional administrative staff person to help one day per week, so
Employer’s administrative duties were covered, and Employer’s office space was at
physical capacity (“very full seat-wise as well”). R.R. at 751a.
The record evidence clearly establishes that Employer offered Claimant
a full-time, light-duty office position, which Claimant accepted and began working
on August 15, 2016.30 Thus, the reason for Claimant’s May 13 to August 10, 2016
suspension (i.e., her refusal to accept available work within her restrictions) no longer
existed. Although Claimant worked nearly full-time hours, her partial disability
29
When Kent was asked what she understood about Claimant’s absence between September
13 and 23, 2016, Kent responded: “I’m not stating that I had no idea what was going on with
[Claimant]. What I would say is that I had no idea if [she] was going to return, and if so, when that
would have been.” R.R. at 740a.
30
This was no longer a situation in which Claimant refused an offered job in bad faith,
which is the standard Employer asks this Court to apply.
29
benefits were modified effective August 15, 2016, because she was still earning less
than her time-of-injury wages. See R.R. at 764a.
Claimant called off work September 12, 2016 with complaints of
increased arm pain, purportedly resulting from her September 8, 2016 IME.
Following her September 13, 2016 examination, Dr. Colton ordered Claimant off
work until a cervical MRI and further evaluation could take place. Despite that
Employer was aware of Dr. Colton’s order, during the 10 days that Claimant
remained off work, Employer hired someone else to do Claimant’s light-duty office
job.
Where Claimant is seeking reinstatement of total disability benefits after
losing a light-duty job she accepted and was performing, the focus must be on the
“reason for losing the job[,]” and not that Claimant had previously declined
acceptable work. Johnson, 650 A.2d at 1181 (emphasis added). However, in this
case, the WCJ and the Board applied the standard for reinstatement after suspension
for lack of good faith (i.e., Claimant’s work injury worsened such that she could no
longer do the work),31 when they should have applied the burden for reinstatement
after suspension (i.e., Claimant’s work injury continues and again adversely affects
her earning power).
This Court expounded regarding the latter standard:
As to the [] element[] that the disability that gave rise to the
original claim continued, a claimant may satisfy h[er]
burden as to continuation of h[er] work injury through h[er]
own testimony. Teledyne. . . .
31
The WCJ found: “Claimant has not proven her condition related to her work injury has
worsened[,]” and that “Claimant ha[s] not proven that her light[-]duty or sedentary job was taken
away from her. Claimant did not exercise good faith in her return to modified duty.” WCJ Dec. at
14. The WCJ concluded: “Claimant has not proven that she had a basis for reinstatement of her
benefits. Thus, her [Reinstatement Petition] must be denied and dismissed.” WCJ Dec. at 15.
30
As to the [] element[] that a claimant’s earning power is
once again adversely affected by the work injury, where a
claimant returns to work with restrictions related to the
injury (a modified position), and is subsequently laid off, a
claimant is entitled to the presumption that the loss of
earning power is causally related to the work injury. Folk v.
Workers’ Comp. Appeal Bd. (Dana Corp.), 802 A.2d 1277(Pa. Cmwlth. 2002); Teledyne. Stated differently, when a
claimant does not return to h[er] pre-injury job, and is
then laid off from the modified duty job, the law
presumes the layoff and attendant loss of earnings is
attributable to the continued injury, shifting the burden
to an employer to rebut the presumption. Folk.
Dougherty, 102 A.3d at 595 (emphasis added).
Because it is undisputed in the instant matter that Claimant’s work injury
continued, and limited her to light-duty office work from which Employer discharged
her, Claimant [wa]s “entitled to the presumption that [her] loss of earning power
is causally related to [her] work injury,” and the burden shifted to Employer to
rebut the presumption by showing that Claimant’s earnings loss was not caused
by her work injury. Id. (emphasis added).
In response to Claimant’s Reinstatement Petition, Employer stated:
“Claimant stopped working for reasons unrelated to the compensable injury and[,]
therefore[,] the resultant loss of earnings is unrelated to the compensable work
injury.” R.R. at 50a. In its brief, Employer expounded that Claimant’s earnings loss
was not caused by her work injury, since she was out of work from September 13 to
23, 2016 for cervical issues not related to her work injury, and because her work
performance was substandard.
However, absent bad faith or misconduct relative to her full-time
sedentary job after August 15, 2016, “[u]nsatisfactory work performance alone d[id]
not suffice to deprive Claimant of reinstatement of benefits.” Dougherty, 102 A.3d at
598. Moreover, the record evidence clearly reflects that Employer discharged
Claimant because Employer did not know if or when Claimant would return to work.
31
The WCJ found: “After Claimant failed to return to work, someone was
hired to fill her spot[.]” WCJ Dec. at 12. Employer produced no evidence that, at the
time it rescinded Claimant’s job, it did so because Claimant’s absence was not related
to her work injury. The WCJ found credible and accepted as fact Dr. Kelman’s
testimony that Claimant’s cervical complaints after the September 8, 2016 IME were
not related to Claimant’s work injury, and did not stem from the dynamometer test, so
Claimant was still limited by her work injury to the sedentary office job. See WCJ
Dec. at 12, 13. The WCJ also found:
Claimant’s allegations that her sedentary job was taken
away from her is specifically rejected. This [WCJ] accepts
that Claimant . . . did not return because of non-work
related issues. Claimant took off for her cardiac issues.
When she returned to work, she claimed arm and neck pain
prevented her from continuing to work which are not
related to her work injury. Dr. Colton took Claimant out of
work on September 13, 2016 in part because her neck was
bothering her. Claimant however testified that as of
September 12[,] 2016, she had no trouble performing the
sedentary job and could have kept working. This [WCJ]
finds that when Claimant’s attempts to return to work at
various times are review[ed] as a whole, she did not
exercise good faith in her attempts to return to work.
Claimant’s testimony is just not credible or persuasive and
is rejected.
WCJ Dec. at 13. The Board agreed.
Importantly, because the WCJ found that Claimant complained of “arm
and neck pain” on September 13, 2016, and further acknowledged that Claimant’s
time off work was due only “in part” to neck issues, it was inconsistent for the WCJ
to conclude that Claimant did not work between September 13 and September 23,
2016 “because of non-work[-]related issues.” WCJ Dec. at 13 (emphasis added). In
addition, despite that the WCJ found Claimant had previously declined acceptable
work Employer offered Claimant within her restrictions before August 10, 2016, the
32
WCJ did not specifically find that Claimant committed bad faith or misconduct
related to her full-time sedentary job thereafter. Accordingly, it is not evident that
Claimant’s earnings loss after September 26, 2016 was attributed to anything other
than her work injury.
Where, as here, causation is presumed, and the burden shifted to
Employer to prove that Claimant’s disability after September 26, 2016 was not
caused by her work injury, the WCJ and the Board erred by placing the burden on
Claimant to demonstrate that her medical condition worsened. Because the WCJ
failed to apply the presumption of causation and placed the burden of proof on
Employer, a remand is necessary for the WCJ “to apply the proper presumption of
causation and [burden] to the facts found here, based on the existing record.”
Dougherty, 102 A.3d at 597.
Conclusion
Based upon the foregoing, this Court affirms the portion of the Board’s
order upholding the WCJ’s decision suspending Claimant’s benefits from May 13 to
August 10, 2016. This Court vacates the portion of the Board’s order affirming the
WCJ’s decision denying Claimant’s Reinstatement Petition, and remands to the
Board to remand to the WCJ to apply the correct presumption and burden, based on
the existing record, consistent with this opinion.
___________________________
ANNE E. COVEY, Judge
33
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Monifa Holmes, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Bayada Home Health :
Care, Inc.), : No. 43 C.D. 2019
Respondent :
ORDER
AND NOW, this 12th day of December, 2019, the Workers’
Compensation Appeal Board’s (Board) December 17, 2018 order is AFFIRMED in
part and VACATED in part. This matter is REMANDED to the Board to remand to
the Workers’ Compensation Judge in accordance with this opinion.
Jurisdiction is relinquished.
___________________________
ANNE E. COVEY, Judge