R. Carpenter v. WCAB (Commonwealth of PA) ( 2015 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Raymond Carpenter, :
:
Petitioner :
:
v. : No. 2357 C.D. 2014
: Submitted: July 17, 2015
Workers’ Compensation Appeal :
Board (Commonwealth of :
Pennsylvania), :
:
Respondent :
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE COLINS FILED: August 12, 2015
Raymond Carpenter (Claimant) petitions for review of the November
25, 2014 order of the Workers’ Compensation Appeal Board (Board) that affirmed
the November 26, 2013 decision and order of the Workers’ Compensation Judge
(WCJ). The WCJ denied Claimant’s Reinstatement Petition under the Workers’
Compensation Act (Act)1 because Claimant failed to demonstrate that his loss of
earnings was due to his original work injury. Before this Court, Claimant argues
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
that the Board erred by denying his Reinstatement Petition and that the WCJ failed
to issue a reasoned decision. For the following reasons, we affirm.2
On December 10, 2004, Claimant sustained a cervical strain during
the course and scope of employment as a Parole Officer with the Commonwealth
of Pennsylvania Department of Probation and Parole (Employer). (WCJ Decision,
Findings of Fact (F.F.) ¶1.) Claimant returned to a restricted duty position with
Employer, but after three months he received a medical retirement. (Id. ¶6b-c.) A
few months after his medical retirement, around June 2006, Claimant began
working for Friendly Transportation Company (Friendly Taxi) as an operations
manager and Claimant worked in that position for approximately one year. (Id.
¶6d.) Claimant resigned his position with Friendly Taxi and, two to three weeks
later, Claimant obtained a position with Franklin and Marshall College (F&M) as a
part-time patrol officer. (Id. ¶1e.) Within a month, Claimant was hired as a full-
time investigator and he held that position until he resigned on August 16, 2012.
(Id. ¶1h.) On September 6, 2012, Claimant filed a Reinstatement Petition alleging
that, as of August 16, 2012, his past work injury had caused a present decrease in
earning power.3 (Reinstatement Petition; WCJ Decision at 1.)
2
This Court’s review of an order of the Board is limited to determining whether the WCJ’s
findings of fact are supported by substantial evidence, whether an error of law was committed or
whether constitutional rights were violated. Bufford v. Workers’ Compensation Appeal Board
(North American Telecom), 2 A.3d 548, 551 (Pa. 2010).
3
Claimant also filed a Review Petition, which was granted by the WCJ in the November 26,
2013 decision and order. Accordingly, Claimant’s work injury was expanded to include “post
fusion syndrome and myofascial pain syndrome.” (WCJ Decision and Order, Conclusion of Law
(C.L.) ¶2.) In the same decision and order, the WCJ also denied Claimant’s Penalty Petition
because Claimant failed to produce sufficient evidence to demonstrate that the treatment
provided to Claimant, to which Employer had denied payment, was causally related to his work
injury. (Id., C.L. ¶4.) Neither party has sought review by this Court of the Board’s affirmance of
the WCJ’s grant of the Review Petition or denial of the Penalty Petition.
2
Under Section 413(a) of the Act4, a claimant who has had benefits
suspended may seek to have the suspension lifted where the claimant has
experienced a recurred loss of earnings. 77 P.S. § 772. Where a claimant is
petitioning to have benefits reinstated, the causal connection between the
claimant’s disability and work-related injury is presumed. Pieper v. Ametek–
Thermox Instruments Division, 584 A.2d 301, 305 (Pa. 1990). Under the Act, the
word disability is synonymous with loss of earning power. Dillon v. Workmen’s
Compensation Appeal Board (Greenwich Collieries), 640 A.2d 386, 391 (Pa.
1994); Donahay v. Workers’ Compensation Appeal Board (Skills of Central PA,
Inc.), 109 A.3d 787, 792 (Pa. Cmwlth. 2015). To lift a suspension of benefits,
Section 413(a) of the Act requires that a claimant demonstrate: (1) that the
claimant’s earning power is once again adversely affected by the disability; and (2)
that the disability is a continuation of the disability that arose from the work-
related injury. Bufford v. Workers’ Compensation Appeal Board (North American
Telecom), 2 A.3d 548, 558 (Pa. 2010); North Pittsburgh Drywall Co., Inc. v.
Workers’ Compensation Appeal Board (Owen), 59 A.3d 30, 38 n.10 (Pa. Cmwlth.
2013). In seeking to demonstrate that a reinstatement of benefits is required under
4
Section 413(a) of the Act provides, in relevant part:
A [WCJ]…may, at any time, modify, reinstate, suspend, or terminate a notice of
compensation payable, an original or supplemental agreement or an award of the
department or its [WCJ], upon petition filed by either party with the department,
upon proof that the disability of an injured employe has increased, decreased,
recurred, or has temporarily or finally ceased, or that the status of any dependent
has changed….[W]here compensation has been suspended because the employe’s
earnings are equal to or in excess of his wages prior to the injury[,]…payments
under the agreement or award may be resumed at any time during the period for
which compensation for partial disability is payable, unless it be shown that the
loss in earnings does not result from the disability due to the injury.
77 P.S. § 772.
3
the Act, it is not necessary that a claimant offer expert medical evidence to
establish that the prior work-related injury continues; a claimant’s credible
testimony is sufficient. Latta v. Workmen’s Compensation Appeal Board (Latrobe
Die Casting Co.), 642 A.2d 1083, 1085 (Pa. 1994); Hinton v. Workers’
Compensation Appeal Board (City of Philadelphia), 787 A.2d 453, 456 (Pa.
Cmwlth. 2001). Once the claimant’s burden is satisfied, the burden then shifts to
the employer, who, in order to prevail, must demonstrate that the claimant’s loss in
earnings is not caused by the disability arising from the work-related injury.
Bufford, 2 A.3d at 558; Trevdan Building Supply v. Workers’ Compensation
Appeal Board (Pope), 9 A.3d 1221, 1224 (Pa. Cmwlth. 2010). An employer may
meet this burden by demonstrating that, for example, the claimant’s loss of
earnings is due to the claimant’s bad faith rejection of available work within the
claimant’s restrictions, rather than the claimant’s continuing disability. Id.; Verity
v. Workers’ Compensation Appeal Board (Malvern School), 38 A.3d 936, 942 (Pa.
Cmwlth. 2011).
In the instant matter, the WCJ concluded that Claimant had not
produced sufficient evidence to demonstrate that his earning power was once again
adversely affected by his continued disability. (WCJ Decision, Conclusions of
Law (C.L.) ¶3.) The Board affirmed, concluding that “there was no credited
substantial, competent evidence to support Claimant’s allegation that his condition
had changed to the point that he was again disabled.” (Board Decision at 5-6.)
Claimant petitioned this Court for review. Before this Court, Claimant argues that
the WCJ ignored uncontroverted evidence of record, which led the WCJ to err in
concluding that Claimant had not met his burden under the Act, and that the WCJ
failed to issue a reasoned decision.
4
In support of his Reinstatement Petition, Claimant testified before the
WCJ on October 3, 2012, January 30, 2013, and August 5, 2013. (10/03/12
Hearing Testimony (H.T.); 01/30/13 H.T; 08/05/13 H.T.; WCJ Decision, F.F. ¶¶6,
7, 12.) Michael Rossano, the former Director of Public Safety and Chief of Police
at F&M, who had been Claimant’s supervisor, testified for Claimant by way of
deposition on August 14, 2013. (Michael Rossano Deposition (Rossano Dep.);
WCJ Decision, F.F. ¶11a-b.) Claimant also offered the testimony of his treating
physician, Randy A. Cohen, D.O., who is board certified in physical medicine and
rehabilitation and who testified by way of deposition on March 15, 2013.5 (Randy
A. Cohen, D.O., Deposition (Cohen Dep.); WCJ Decision, F.F. ¶8a.)
In the November 26, 2013 decision and order denying Claimant’s
Reinstatement Petition, the WCJ extensively reviewed Claimant’s testimony and
made findings of fact concerning each day of testimony. (WCJ Decision, F.F.
¶¶6a-k, 7a-m, 12a-h.) However, the WCJ ultimately did not find Claimant
credible:
15. This Judge has had the opportunity to view the demeanor and
comportment of Claimant during his live testimony in conjunction
with all of the other evidence of record. Based on same, Claimant’s
testimony that his loss of earnings was due to his inability to continue
to perform the physical duties of his investigative position at F&M
from August 16, 2012 an[d] onward due to the work injury from 2004
is found not to be credible for the following reasons:
a. The “timing” of Claimant’s decision to stop working
at F&M is suspect. Claimant decided to stop working on
5
Employer offered the testimony of Richard G. Schmidt, M.D., who is board certified in
orthopedic surgery and who testified by way of deposition on May 31, 2013. (Richard G.
Schmidt, M.D., Deposition (Schmidt Dep.); WCJ Decision, Findings of Fact (F.F.) ¶10a.) The
WCJ did not find Dr. Schmidt’s testimony credible. (WCJ Decision, F.F. ¶19.)
5
August 16, 2012, just the day after being reprimanded. It
is not credible that the day after Claimant receives the
reprimand, he is then all of a sudden unable to work any
more due to the 2004 work injury, despite being able to
do so for nearly five years at F&M.
b. This Judge also notes that Claimant at first testified
that he stopped working at the dispatcher operations
manager position at Friendly Taxi, by all accounts a
sedentary job, because of the ongoing effects of his work
injury. A few weeks later, Claimant then obtained a
police officer position with F&M College. It is not
credible that Claimant would leave a sedentary office
position at Friendly Taxi due to his work injury, and then
accept a police officer position, which according to
Claimant can be physically demanding. It seems clear to
this Judge that Claimant chose to leave the office position
at Friendly Taxi, for reasons other than his work injury.
Claimant ultimately conceded on cross examination that
he stopped working at Friendly Taxi, at least in part,
because he could not stand the people he was working
for. Claimant’s testimony that he left his positions at
both Friendly Taxi and F&M primarily because of the
ongoing effects of his work injury is not credible in light
of the other issues he was having with these employers at
the time he decided to stop working for these employers.
c. Claimant’s investigative position does not appear to
be physically demanding to the degree that Claimant
could not perform the duties of this position due to his
work injury. Mr. Rossano noted that Claimant’s job
involved mostly investigative or administrative work.
While Claimant testified that as an investigator he still
had to meet the same physical requirements of a regular
police officer, in having the ability to jump out of a car
and run, and lift up to 50 pounds, Mr. Rossano noted that
he never gave Claimant a task that he did not think
Claimant could perform. Mr. Rossano also stated that he
never thought he was placing Claimant in harms [] way
having him perform the duties of his investigative
6
position on the street. In fact, Claimant was given a
stellar employment evaluation by Mr. Rossano in April in
2012, in which Claimant had “exceeded expectations.” It
does not make sense that just a few months later that
Claimant went from being an employee who was
exceeding expectations to someone who could no longer
work, without any intervening incident. The only
intervening incidents in the record around this time
appear to be the departure of Mr. Rossano as Claimant’s
immediate supervisor in June of 2012 and the reprimand
on August 15, 2012.
d. Claimant testified that he could not work his
investigator job in part because of really bad headaches.
No medical evidence, however, has been presented
relating Claimant’s headaches to the work injury from
2004.
e. Claimant’s subjective complaints that he cannot
perform the physical duties of his investigative position
are not credible. As stated earlier, the duties of the
investigative position do not appear to be too strenuous.
Claimant testified that despite the work injury, he is able
to drive, walk for up to an hour and to watch his great
grand-child. A medical note from February 2011,
indicates Claimant was able to walk 5 to 10 miles per day
on cruise excursions. Dr. Cohen testified Claimant’s
pain levels had come down for a period of time to a three
or four on a scale of one to ten, and Claimant himself
noted that his pain had come down at times to a one or
two on a scale of one to ten. All of these facts seem
inconsistent with Claimant’s subjective statement that he
stopped working because he physically is unable to
perform the duties of his investigative position.
(Id., F.F. ¶15a-c.) The WCJ also found that Dr. Cohen’s testimony was not
credible in part. Specifically, the WCJ found:
7
Dr. Cohen’s opinion that Claimant is unable to perform any gainful
employment as of August 16, 2012 because of Claimant’s reported
pain levels are not credible. As noted above, Claimant’s subjective
complaints that he is unable to work due to his pain levels is not
credible. Dr. Cohen’s opinion which is based on Claimant’s
subjective complaints, is likewise found to be incredible.
(Id., F.F. ¶18.)
In advancing his argument that he produced sufficient evidence to
demonstrate that his current loss of earning is due to his work injury, Claimant
relies upon his testimony concerning the changes in his job duties at F&M and his
worsening symptoms, as well as Dr. Cohen’s testimony concerning Claimant’s
condition. In the WCJ’s findings of fact the WCJ noted Claimant’s testimony
concerning the professionalization of the F&M police department, Claimant’s
concerns about passing a physical examination, and Claimant’s description of pain
and of the effects of the medications he is prescribed. (Id., F.F. ¶¶6e-h, 7f, l-m,
12c-d, f.) The WCJ also thoroughly reviewed Dr. Cohen’s testimony in the
findings of fact and noted that “Dr. Cohen opined that Claimant has been unable to
engage in any employment since August of 2012 because his pain levels have
prohibited him from doing so.” (Id., F.F. ¶8s.)
As evident in the WCJ’s findings of fact, the record contains
testimony to support Claimant’s argument that the changes in his job duties and his
worsening condition demonstrate that his earning power is once again adversely
affected by his continued disability. What Claimant’s argument overlooks,
however, is that the testimony offered was not accepted as credible and therefore is
insufficient to meet Claimant’s burden. In workers’ compensation matters, the
WCJ is the ultimate finder of fact and has exclusive province over questions of
credibility. Furnai v. Workers’ Compensation Appeal Board (Temple Inland), 90
8
A.3d 53, 60 (Pa. Cmwlth. 2014). As the ultimate finder of fact, the WCJ is free to
accept or reject any testimony, in whole or in part, and to weigh and resolve
conflicts in the evidence of record. Neff v. Workers’ Compensation Appeal Board
(Pennsylvania Game Commission), 109 A.3d 291, 296 (Pa. Cmwlth. 2015). The
WCJ’s credibility determinations are binding on this Court; at bottom, Claimant’s
argument amounts to a request to exercise authority that this Court does not have.
The WCJ concluded that Claimant had failed to sustain his burden by
demonstrating that his earning power is once again adversely affected by his
continued disability and our review has identified no credible, competent evidence
of record that demonstrates otherwise. Therefore, we conclude that the Board did
not err by affirming the WCJ.
We also conclude that the WCJ’s decision was a reasoned one.
Section 422(a) of the Act6 aids meaningful appellate review by requiring the WCJ
to issue a reasoned decision containing findings of fact and conclusions of law
6
The full text of Section 422(a) now reads as follows:
Neither the board nor any of it members nor any [WCJ shall be bound by the
common law or statutory rules of evidence in conducting any hearing or
investigation, but all findings of fact shall be based upon sufficient competent
evidence to justify same. All parties to an adjudicatory proceeding are entitled to a
reasoned decision containing findings of fact and conclusions of law based upon
the evidence as a whole which clearly and concisely states and explains the
rationale for the decisions so that all can determine why and how a particular
result was reached. The [WCJ] shall specify the evidence upon which the workers'
compensation judge relies and state the reasons for accepting it in conformity with
this section. When faced with conflicting evidence, the workers' compensation
judge must adequately explain the reasons for rejecting or discrediting competent
evidence. Uncontroverted evidence may not be rejected for no reason or for an
irrational reason; the workers' compensation judge must identify that evidence
and explain adequately the reasons for its rejection. The adjudication shall provide
the basis for meaningful appellate review.
77 P.S. § 834.
9
based upon the evidence as a whole and clearly stating the rationale for the
decision. 77 P.S. § 834; Daniels v. Workers’ Compensation Appeal Board
(Tristate Transport), 828 A.2d 1043, 1052 (Pa. 2003) (“a decision is ‘reasoned’ for
purposes of Section 422(a) if it allows for adequate review by the [Board] without
further elucidation and if it allows for adequate review by appellate courts”).
When the WCJ is faced with conflicting evidence, section 422(a) of the Act further
requires that the WCJ explain the basis for rejecting or discrediting competent
evidence. 77 P.S. § 834; Daniels, 828 A.2d at 1052.
Claimant argues that the WCJ failed to make findings concerning the
credibility of Mr. Rossano and that this failure precludes meaningful appellate
review. As with the testimony given by Claimant and Dr. Cohen, the WCJ
thoroughly reviewed Mr. Rossano’s testimony in the findings of fact. (WCJ
Decision, F.F. ¶11a-k.) Unlike the testimony given by Claimant and Dr. Cohen,
the WCJ did not make an explicit determination of Mr. Rossano’s credibility.
However, the WCJ relied upon Mr. Rossano’s testimony in determining
Claimant’s credibility. It is evident from the WCJ’s discussion of the basis for
rejecting Claimant’s testimony that he accepted Mr. Rossano’s testimony as
credible. (Id., F.F. ¶15b-c.)
The WCJ’s findings of fact based on Mr. Rossano’s testimony
included a description of Claimant’s position at F&M, explaining that all F&M
officers are sworn police officers by the County of Lancaster. (Id., F.F. ¶11c.)
Based on Mr. Rossano’s testimony, the WCJ found that Claimant had the potential
for physical confrontations when making an arrest, but that Claimant’s position
involved a lot of investigative and administrative work. (Id. ¶11d.) Based on Mr.
Rossano’s testimony, the WCJ also found that when Mr. Rossano left F&M,
Claimant did not look well and that Claimant appeared to be getting progressively
10
worse. (Id. ¶11f&j.) Yet, despite the possible physicality of Claimant’s position
and Mr. Rossano’s concerns about Claimant’s health, the WCJ, based on Mr.
Rossano’s testimony, found that Claimant was one of Mr. Rossano’s best
employees, that Claimant was very reliable and did his work well, that even when
Claimant’s condition appeared to worsen his performance was still very good, and
that Mr. Rossano had never expressed concerns about Claimant’s ability to
perform his job and had consistently given him outstanding performance
evaluations, stating that Claimant “exceeded expectations.” (Id. ¶11e-f, h-i.)
Overall, the WCJ determined that while Mr. Rossano’s testimony showed that the
F&M police had become a more professionalized force during Claimant’s
employment with F&M, Mr. Rossano’s testimony did not offer support for
Claimant’s contention that his prior injury rendered him unable to continue at
F&M because his duties at F&M had become akin to those of his preinjury
position as a parole officer. As the finder of fact, the WCJ was required to
consider and weigh the evidence offered by Mr. Rossano. The WCJ did so. The
WCJ did not view Mr. Rossano’s testimony in the same light as Claimant; this is
not a failure to issue a reasoned decision, but a failure to reason as Claimant would
have liked. The WCJ’s decision as a whole is thorough, clear and leaves no
question as to how the result was reached in this matter. 77 P.S. § 834.
Accordingly, we affirm the order of the Board.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Raymond Carpenter, :
:
Petitioner :
:
v. : No. 2357 C.D. 2014
:
Workers’ Compensation Appeal :
Board (Commonwealth of :
Pennsylvania), :
:
Respondent :
ORDER
AND NOW, this 12th day of August, 2015, the Order of the Workers’
Compensation Appeal Board in the above-captioned matter is hereby AFFIRMED.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge