Interim HealthCare of Pittsburgh v. WCAB (Pavis) ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Interim HealthCare of Pittsburgh :
and Sedgwick Claims Management :
Services, Inc., :
Petitioners :
:
v. : No. 789 C.D. 2018
: Submitted: September 7, 2018
Workers’ Compensation Appeal :
Board (Pavis), :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: February 21, 2019
Interim HealthCare of Pittsburgh and Sedgwick Claims Management
Services, Inc. (collectively, Employer) petition for review of an order of the
Workers’ Compensation Appeal Board (Board), dated May 15, 2018. The Board
affirmed the decision of a Workers’ Compensation Judge (WCJ), granting the claim
petition filed by Susan Pavis (Claimant). For the reasons set forth below, we affirm
the Board’s order.
Claimant worked for Employer as a private-duty nurse. On
December 30, 2014, Claimant sustained a work-related injury in the nature of a right
upper arm and upper back strain. Employer accepted liability for Claimant’s
work-related injury pursuant to a medical-only Notice of Compensation Payable.
Thereafter, on July 17, 2015, Claimant filed a claim petition, asserting that she had
sustained an injury to her right upper arm and upper back while working for
Employer on December 30, 2014, and was disabled as of July 8, 2015.
Before the WCJ, Claimant testified that she worked for Employer as a
private-duty nurse, providing care to patients within their homes. (Reproduced
Record (R.R.) at 23a-24a.) In mid-November 2014, Claimant began to experience
a twinge in the middle of her back while performing stretching exercises with one
of her patients. (Id. at 27a.) Claimant explained that the patient is very stiff and has
limited range of motion, and, therefore, she is required to raise the patient’s leg and
lean into the leg using force and her body weight to stretch out the patient’s muscles.
(Id. at 27a-28a.) By December 30, 2014, Claimant could no longer perform the
stretching exercises with her patient because she was experiencing “extreme burning
in the middle of [her] back[,] . . . muscle tightness and spasms throughout [her] upper
back thoracic area into [her] shoulder and up into [her] neck[,] . . . [and] pain
radiating down [her] arm like an electrical pain” on her right side. (Id. at 26a-29a.)
As a result, Claimant reported her symptoms/injury to Employer and sought
treatment for her injuries. (Id. at 29a.)
Claimant initially treated for her work-related injury with MedExpress.
(Id. at 30a.) The medical professionals at MedExpress diagnosed Claimant with a
muscle strain to the upper back and neck, prescribed Flexeril, and placed Claimant
under a 10-pound lifting restriction. (Id. at 30a, 33a, 45a.) While working under the
restriction, Claimant continued to care for the same patient, but she did not perform
the range of motion/stretching exercises or reposition the patient. (Id. at 31a,
160a-61a.) During that time, Claimant continued to experience burning in her back
2
and muscle tightness and knotting throughout her shoulder. (Id. at 31a.) As a result,
the medical professionals at MedExpress referred Claimant to Jacob Dicesare, D.O.,
an orthopedic doctor, who administered trigger point injections to Claimant’s
muscles and permitted Claimant to continue to work in a light-duty capacity.
(Id. at 30a-31a, 46a-47a.) Claimant explained, however, that the trigger point
injections were “[n]ot really effective.” (Id. at 31a.) Claimant also treated with
Joseph Altier, D.C., a chiropractor, who performed adjustments, heat therapy,
massage therapy, and ultrasound therapy to her rib at the T5-T6 area.
(Id. at 31a-32a.) Claimant explained that, with the chiropractic care, her muscle
tightness slowly started to relax and her muscle knotting and spasms started to
improve. (Id. at 32a.) Thereafter, in April/May 2015, Claimant began treating with
Edward D. Snell, M.D. (Id. at 33a-34a.) At that time, Dr. Snell prescribed physical
therapy, ordered an MRI and bone scan, and recommended that Claimant continue
to undergo chiropractic treatment for her rib if necessary. (Id. at 33a.) Dr. Snell also
prescribed Neurontin for nerve pain and continued Claimant’s prescription for
Flexeril. (Id.)
Claimant testified further that, despite the modified-duty restrictions,
her symptoms did not improve; she continued to experience burning in her back,
which became worse with lifting, muscle spasms, muscle tightness and knotting, and
nerve pain down her right arm and up into her neck. (Id. at 34a, 36a-37a.) As a
result, Dr. Altier, and later Dr. Snell, restricted Claimant from working in any
capacity. (Id. at 35a-36a.) Claimant continued to treat with Dr. Altier until
approximately 2 weeks later, when her “rib stayed where it was supposed to be” and
no longer required adjustment. (Id. at 37a.) Claimant also continued to treat with
Dr. Snell and to undergo physical therapy. (Id. at 37a-38a.) Claimant testified that
3
her symptoms improved while she was off from work, but she continued to
experience burning pain in her back with lifting. (Id. at 38a.)
On October 9, 2015, based on the results of Claimant’s functional
capacity evaluation and his evaluation of Claimant, Dr. Snell released Claimant to
return to work in a sedentary capacity. (Id. at 73a-74a.) Thereafter, on
October 13, 2015, Claimant returned to work in a modified-duty position in
Employer’s office. (Id. at 74a-76a.) Claimant explained that she continues to
experience a burning sensation/pain “in the center of [her] back just to the right”
every day, a burning/aching “pain that radiates out underneath [her] shoulder blade
on the right” that “comes and goes” and seems to be exacerbated with lifting, pulling,
or pushing, and “numbness or tingling down underneath [her] right arm” on a rare
occasion. (Id. at 79a, 151a-53a.) Claimant explained further that she also continues
to experience increased pain while performing certain tasks in Employer’s office,
but she has the ability to vary those tasks to limit her discomfort. (Id. at 147a-48a.)
As of September 14, 2016, Dr. Snell continued to restrict Claimant to “light duty, no
lifting over [10] pounds and no repetitive movements with [her] right arm.”
(Id. at 188a.)
Claimant also presented the deposition testimony of Dr. Snell, who is
board certified in family medicine with a certificate of added qualifications in sports
medicine. (Id. at 228a.) Dr. Snell testified that he first treated Claimant on
April 10, 2015. (Id. at 231a.) At that time, Claimant presented with “tenderness
over the scapular thoracic region right over the rib cage and along the scapular
thoracic articulation.” (Id. at 233a.) Dr. Snell performed a physical examination,
which revealed tenderness over the T5-T6 area and the parascapular region, a
burning sensation over the muscles that control the parascapular region, a clicking
4
and catching sensation with scapular movement over the ribs, normal range of
motion, no significant atrophy or muscle damage, normal strength, and normal
sensation and reflexes. (Id. at 234a-35a, 249a-50a.) Dr. Snell ordered an MRI and
a SPECT bone scan to determine whether Claimant had sustained any structural
damage. (Id. at 233a.) The MRI revealed a small central herniation in the lower
thoracic spine, but the bone scan was negative. (Id. at 234a.)
Dr. Snell testified further that, over the course of his treatment of
Claimant, Claimant’s complaints and physical examinations have been very
consistent. (Id. at 235a.) Dr. Snell has sent Claimant for injections—an epidural,
trigger point injections, and scapular thoracic injections—and, while the injections
have helped Claimant’s pain, they have not cured it. (Id. at 235a, 237a.) Dr. Snell
has also prescribed physical therapy in an attempt “to try to mobilize the scapular
area and stabilize the muscles around the area.” (Id. at 236a.) Dr. Snell explained
that Claimant received the most relief from her symptoms when he restricted her
from working and that, as soon as Claimant returns to her work activities, her
symptoms recur because she is required “to use her upper extremity and her scapular
thoracic region and her articulation.” (Id.) Dr. Snell explained further that, while
he has been able to control Claimant’s pain, he has not “been able to fix her.”
(Id. at 238a.) Dr. Snell also indicated that Claimant is very frustrated because she
wants to go back to full-duty work, “but every time she does go back to any kind of
duty, she gets [an] increase in her pain.” (Id.)
In September 2015, Dr. Snell ordered a functional capacity evaluation
to determine what Claimant could do that would not exacerbate her symptoms.
(Id. at 238a.) Following the functional capacity evaluation, Dr. Snell released
Claimant to return to work in a sedentary capacity. (Id. at 239a.) Dr. Snell explained
5
that any time Claimant does anything that involves movement of her shoulder with
increased weight she experiences pain. (Id.) Dr. Snell also indicated that although
Employer’s office position causes Claimant to experience some pain, “it doesn’t
cause enough pain that it disables [Claimant].” (Id. at 239a-40a.) When questioned
whether he discussed going back to direct patient care work with Claimant, Dr. Snell
stated:
[I]t’s tenuous because she’s frustrated. She wants to go
back to full work, and she wants me to say that she’s going
to have no pain doing it, but I can’t do that. She has an
injury that’s very difficult to treat because there’s no
surgical fix for it and the treatment that we use is very
temporary. So it’s something that she’s stuck with,
unfortunately.
(Id. at 240a-41a.)
Ultimately, Dr. Snell opined that Claimant sustained a scapular thoracic
articulation and chronic thoracic pain as a result of her work activities. (Id. at 243a.)
Dr. Snell did not believe that Claimant’s pain would ever be resolved and that the
pain is something that Claimant will just have to deal with, similar to having to deal
with arthritis. (Id.) Dr. Snell indicated that Claimant should continue to work under
her current sedentary/office work restrictions with no lifting greater than
10 to 20 pounds because, if Claimant attempts to do anything with a significant
amount of weight, including reaching, pushing, pulling, and lifting, Claimant is
going to experience pain. (Id. at 243a-44a.)
On cross-examination, Dr. Snell admitted that, objectively and based
on the results of the functional capacity evaluation, Claimant is capable of
performing light-duty work, including the modified-duty positions offered to her by
Employer. (Id. at 251a-55a.) More specifically, Dr. Snell testified:
Q. . . . Now, let me ask you this: Certainly from an
objective standpoint you’ve indicated she could do these
6
jobs. I’m assuming if she came to you and said, “Doctor,
I want to try these jobs,” you’d let her?
A. I would.
Q. You’d even encourage her to at least try these jobs;
wouldn’t you?
A. I would.
Q. And at least objectively, Doctor -- again,
objectively, she’s capable of working as a nurse. It’s just
her pain complaints that are limiting her?
A. That’s correct.
(Id. at 256a-57a.)
In opposition to Claimant’s claim petition, Employer presented the
deposition testimony of Thomas D. Kramer, M.D., an orthopedic surgeon.
(Id. at 314a.) Dr. Kramer performed an independent medical examination of
Claimant on October 19, 2015, which included obtaining a history, reviewing
Claimant’s medical records, and performing a physical examination.
(Id. at 317a-24a.) Dr. Kramer opined that Claimant sustained a work-related
thoracic strain on December 30, 2014, and that Claimant had fully recovered from
such injury and required no further treatment or work restrictions as of the date of
his independent medical examination. (Id. at 327a-28a.) Dr. Kramer also indicated
that there was no explanation for Claimant’s pain complaints. (Id. at 328a.)
Dr. Kramer further opined that Claimant was capable of: (1) performing the
modified-duty positions offered to her by Employer; (2) obtaining her
cardiopulmonary resuscitation (CPR) recertification; and (3) resuming her
pre-injury position as a home health nurse. (Id. at 328a-30a.)
Employer also presented the testimony of Aimee Bergamasco,
Employer’s client service manager. (Id. at 85a-86a, 101a-02a.) In her position as
client service manager, Ms. Bergamasco is responsible for scheduling employees for
7
modified-duty work within their restrictions. (Id. at 86a.) Ms. Bergamasco testified
that, following Claimant’s release to sedentary work in October 2015, Employer
provided Claimant with a position in its office, answering phones, filing, typing, and
moving files. (Id. at 87a, 103a-04a.) Ms. Bergamasco explained, however, that
Employer wanted to get Claimant back to work in the field treating patients because
Claimant is an excellent nurse. (Id. at 104a.) As a result, in November 2015,
Employer offered Claimant a modified-duty position as a pediatric nurse.
(Id. at 104a-05a.) The position would have required Claimant to provide personal
care to a 6-month-old child, including changing the child’s diapers, providing
feedings to the child through a gastrointestinal tube, suctioning the child’s trachea
tube, and turning and lifting the child. (Id. at 104a-05a, 120a.) In the event of an
emergency, such as choking or respiratory distress, Claimant may have been
required to lift/carry the child and/or perform CPR. (Id. at 115a-16a, 122a.)
Claimant refused the position, and Employer thereafter received a letter from
Dr. Snell dated December 9, 2015, restricting Claimant to in-office work only.
(Id. at 105a-06a.)
Ms. Bergamasco testified further that, in January 2016, Employer
offered Claimant a second modified-duty position, which involved assisting
a 7-year-old wheelchair-bound child during transportation to and from school on the
school bus. (Id. at 107a.) Ms. Bergamasco explained that there would have been
two other nurses on the school bus that could have assisted Claimant if she had
difficulty pushing the wheelchair onto the lift. (Id. at 108a.) She admitted, however,
that if those nurses would have been busy attending to their patients, they would not
have been able to assist Claimant. (Id. at 124a-25a.) She also explained that
Claimant would not have been required to provide care to the child while at school;
8
once the child was at school, the school bus driver would have taken Claimant home
and then picked her up before returning to the school at the end of the day. (Id.)
Claimant did not accept the second modified-duty position. (Id. at 109a.)
Thereafter, Ms. Bergamasco advised Claimant of a third modified-duty position,
which involved providing care to a 17-year-old diabetic child. (Id. at 109a-10a.)
The position would have required Claimant to be present with the child during the
school day and to check the child’s blood sugar at lunch. (Id. at 110a, 126a-27a.) In
the event of a diabetic crisis, Claimant may have been required to catch the child if
the child passed out or to lower the child to the ground. (Id. at 127a-28a.) Ms.
Bergamasco explained that there would be individuals available to assist Claimant
on the bus if necessary, but that, during the school day, only the school nurse would
be available to provide assistance. (Id. at 111a-12a, 128a.) Claimant did not accept
the third modified-duty position. (Id. at 112a.)
Ms. Bergamasco admitted that Claimant’s limitations are preventing
her from doing more than the office position. (Id. at 113a-14a.) Ms. Bergamasco
also admitted that Employer did not contact the children’s parents to determine
whether they would consent to Claimant providing care to their children given her
physical limitations. (Id. at 116a-20a, 133a-34a.) She explained that, before
Employer would have contacted the children’s parents, Claimant would have had to
accept one of the positions, and, in this case, Claimant refused all of them.
(Id. at 132a-34a.) Ms. Bergamasco further admitted that Claimant would have to be
CPR-certified to perform any of the nursing positions offered to her by Employer.
(Id. at 122a-24a.)
On rebuttal, Claimant testified that she discussed the modified-duty
position as a pediatric nurse and the modified-duty position involving the 7-year-old
9
wheelchair-bound child with Dr. Snell. (Id. at 148a-50a.) Following her discussions
with Dr. Snell, Claimant decided not to try to perform either of the modified-duty
positions. (Id. at 150a.) Claimant explained that “any patient care that was going to
require any lifting, restraining, pushing or pulling of the patient, or equipment was
outside of [her] ability” and Dr. Snell “did not want [her] doing [it].” (Id.) Claimant
testified further that she also did not attempt to perform the third modified-duty
position involving a 17-year-old diabetic child because, in her experience, she would
be required to assist the child in the event of a crisis—e.g., perform CPR or provide
assistance if the child faints—which she is unable to do. (Id. at 151a.) Claimant
also testified that she was unable to complete her CPR recertification because she
could not perform the compressions without putting pressure on her back.
(Id. at 153a-54a, 166a.) She explained that she was not capable of demonstrating
proper CPR technique because she could not use both hands to push with enough
force to compress the chest of an adult patient 2 full inches for a period of 2 minutes.
(Id. at 153a-56a.)
On January 20, 2017, the WCJ issued a decision and order, granting
Claimant’s claim petition.1 In so doing, the WCJ made the following relevant
findings of fact and credibility determinations:
24. [Claimant], based on the credible and persuasive
testimony of Dr. Snell, her treating physician,
sustained a thoracic scapular articulation as a result
of her work injury that resulted in total disability
from July 8, 2015, through and including
October 12, 2015 and in partial disability since
October 13, 2015, when [Claimant] returned to
1
On January 31, 2017, the WCJ issued an amended order, whereby the WCJ corrected a
typographical error in her January 20, 2017 decision—i.e., she changed the date on which
Claimant’s partial disability benefits would begin from October 13, 2013, to October 13, 2015.
The WCJ affirmed her January 20, 2017 decision and order in all other respects.
10
work at modified duties at reduced wages. . . . Dr.
Snell testified that [Claimant] was not limited by her
objective physical findings. He opined that she was
limited by her pain resulting from using her upper
extremity, scapular thoracic region, and articulation
causing her symptoms to reoccur. . . . Dr. Snell
credibly testified that [Claimant] was unable to
return to any nursing work since [Claimant] would
have pain whenever she tries to do anything with a
significant amount of weight. He took her off work
beginning July 8, 2015. Dr. Snell released
[Claimant] to sedentary duty work not lifting more
than 10-pounds at her October 9, 2015, visit after
reviewing the results of her functional capacity
evaluation. Dr. Snell testified that, since [Claimant]
continued to have pain with activities using her right
arm, he had not released her to return to work
at [3] nursing positions. He admitted that he would
encourage her and release her to the modified
nursing position if she wanted to try the position.
Dr. Snell did not release [Claimant] to try
the [3] nursing positions based on her pain
complaints generated by her current activities.
25. Dr. Kramer’s opinion that [Claimant] sustained a
thoracic strain as a result of the work incident and
had fully recovered the thoracic strain and was able
to return to work without restrictions as of
October 19, 2015, was not credible or
persuasive. . . .
26. This [WCJ] finds that the [3] modified nursing
positions did not fall within [Claimant’s] existing
physical restrictions related to her
December 30, 2014, work injury. Ms. Bergamasco
never provided the weight of the [6-month-old]
infant, which [Claimant] would have to pick up
and/or move at times. Although [Claimant] did not
have to remain with the [7]-year-old child while the
child was in school, [Claimant] was to stay with this
child after school until the mother returned. Ms.
Bergamasco did not indicate what assistance this
child would require if she needed to go to the
bathroom. She admitted that [Claimant] may need
11
to assist the 17-year-old diabetic to lay down if
the 17-year-old had a diabetic crisis. Ms.
Bergamasco did not establish that assistance for
[Claimant] was available while this student was in
school. She only mentioned that [2] other nurses
were available on the school bus. Ms. Bergamasco
did not indicate if these nurses stayed at the school
with their patients. Finally, [Employer] had not
informed the parents of the children and the
teenager of [Claimant’s] physical restrictions.
[Employer] did not know if the parents would
consent to having [Claimant] as their nurse once the
parents were aware of her limitations.
(WCJ’s Decision at 14-16.) Based on these findings of fact and credibility
determinations, the WCJ concluded: (1) Claimant sustained a thoracic scapular
articulation as a result of her December 30, 2014, work-related incident; (2) as a
result of her December 30, 2014 work-related injury, Claimant has been unable to
perform her pre-injury job as a private-duty nurse since July 8, 2015, when Dr. Snell
took her off of work; and (3) Claimant’s disability changed from total disability to
partial disability on October 13, 2015, when she returned to work on modified duty.
Employer appealed to the Board, which affirmed the WCJ’s decision. Employer
then petitioned this Court for review.
On appeal,2 Employer is essentially arguing that there is not substantial
evidence of record to support the WCJ’s finding that the 3 modified-duty nursing
positions offered by Employer did not fall within Claimant’s existing work
restrictions, and, therefore, Employer is entitled to a suspension of benefits because
2
Our review is limited to determining whether an error of law was committed, whether
necessary findings of fact are supported by substantial evidence, and whether constitutional rights
were violated. Combine v. Workers’ Comp. Appeal Bd. (Nat’l Fuel Gas Distrib. Corp.),
954 A.2d 776, 778 n.1 (Pa. Cmwlth. 2008), appeal denied, 967 A.2d 961 (Pa. 2009).
12
Claimant did not follow through on such positions in good faith.3 More specifically,
Employer argues that the record contains evidence that the 3 modified-duty nursing
positions were within Claimant’s restrictions and actually available to Claimant,
because Dr. Snell, Claimant’s treating physician, whose testimony the WCJ found
credible, testified that he would encourage Claimant to perform the 3 modified-duty
nursing positions. Employer argues further that, by considering such factors as the
weight of the 6-month-old infant, whether the 7-year-old wheelchair-bound child
would need assistance to go to the bathroom, whether assistance would be available
at the school to assist her with the 17-year-old diabetic teenager, and whether the
parents of such children would consent to Claimant providing care to their children,
the WCJ went beyond her discretion and considered factors that Claimant did not
raise in her testimony. In response, Claimant argues that the WCJ’s finding that
the 3 modified-duty nursing positions did not fall within her existing work
restrictions is supported by substantial evidence, and, therefore, Claimant could not
3
Employer also suggests that the WCJ failed to issue a reasoned decision and capriciously
disregarded evidence of record because the WCJ did not explain why, in light of Dr. Snell’s
credible testimony that he would encourage Claimant to try to perform the 3 modified-duty nursing
positions, she found that such positions were not within Claimant’s work restrictions. Employer,
however, did not fully develop these arguments in its brief to this Court as required by
Pennsylvania Rule of Appellate Procedure 2119 and, therefore, such arguments have been waived.
See City of Phila. v. Workers’ Comp. Appeal Bd. (Calderazzo), 968 A.2d 841, 846 n.4
(Pa. Cmwlth.), appeal denied, 980 A.2d 609 (Pa. 2009). In addition, based on our review of the
WCJ’s decision, we cannot conclude that the WCJ failed to issue a reasoned decision because the
WCJ explained the rationale behind her decision such that we can exercise adequate review.
See Amandeo v. Workers’ Comp. Appeal Bd. (Conagra Foods), 37 A.3d 72, 76 (Pa.
Cmwlth. 2012). We also cannot conclude that the WCJ capriciously disregarded evidence of
record because the WCJ did not deliberately ignore Dr. Snell’s testimony that he would encourage
Claimant to try to perform the 3 modified-duty nursing positions; rather, the WCJ considered such
testimony as part of her decision. See Williams v. Workers’ Comp. Appeal Bd. (USX
Corp.-Fairless Works), 862 A.2d 137, 144 (Pa. Cmwlth. 2004) (“Capricious disregard occurs only
when the fact-finder deliberately ignores relevant, competent evidence.”).
13
have acted in bad faith by failing to follow through on the job referrals. More
specifically, Claimant argues that Dr. Snell did not release Claimant to perform any
of the 3 modified-duty nursing positions due to the pain Claimant continued to
experience with her current activities. Instead, in response to an objective
hypothetical posed to him during cross-examination, Dr. Snell stated that he would
encourage Claimant to perform the 3 modified-duty nursing positions if she wanted
to try to perform such positions.
At the outset, we note that it is well settled that the WCJ is the sole
arbiter of credibility and evidentiary weight. Womack v. Workers’ Comp. Appeal
Bd. (Sch. Dist. of Phila.), 83 A.3d 1139, 1154 (Pa. Cmwlth.), appeal denied,
94 A.3d 1011 (Pa. 2014). In determining whether the WCJ’s findings are supported
by substantial evidence, we may not reweigh the evidence or the credibility of the
witnesses but must simply determine whether the WCJ’s findings have the requisite
measure of support in the record as a whole. Elk Mountain Ski Resort, Inc. v.
Workers’ Comp. Appeal Bd. (Tietz, deceased), 114 A.3d 27, 32 n.5
(Pa. Cmwlth. 2015). It is irrelevant whether there is evidence to support a contrary
finding; if substantial evidence supports the WCJ’s necessary findings, we may not
disturb those findings on appeal. Williams, 862 A.2d at 143-44.
It is also well settled that “[i]n a proceeding on a claim petition, the
claimant bears the burden of establishing a work-related injury rendering the
claimant incapable of performing the time-of-injury job.” Vista Int’l Hotel v.
Workmen’s Comp. Appeal Bd. (Daniels), 742 A.2d 649, 654 (Pa. 1999). If, however,
as part of the claim petition proceedings, the employer seeks a suspension of benefits
and “asserts that the claimant can perform some work within restrictions, the
employer bears the burden of proving that suitable employment is available.” Id.14
An employer seeking a suspension of benefits on the basis that the claimant has
recovered some or all of her ability to work, must produce: (1) credible medical
evidence establishing that the claimant’s physical condition has changed; and
(2) evidence that the employer referred the claimant to a then-available job that the
claimant is capable of performing based on her medical clearance. Kachinski v.
Workmen’s Comp. Appeal Bd. (Vepco Constr. Co.), 532 A.2d 374, 380 (Pa. 1987).
The burden then shifts back to the claimant to demonstrate that she followed through
on the job referral in good faith. Id. In the event that the referral does not result in
a job, the claimant’s benefits should continue. Id.Here, the WCJ considered all of the evidence presented to her and
essentially found that Employer failed to demonstrate that Claimant was capable of
performing the 3 modified-duty nursing positions. In making this finding, the WCJ
recognized that Employer failed to establish: (1) the weight of the 6-month-old
child, which Claimant would be required to lift at times; (2) what assistance, if any,
the 7-year-old wheelchair-bound child would need at home after school if the child
needed to go to the bathroom; (3) whether Claimant would have assistance at the
school in the event that the 17-year-old diabetic child had a diabetic crisis; and/or
(4) whether the children’s parents would consent to Claimant providing care to their
children given Claimant’s physical limitations. The WCJ, as the finder of fact, was
free to consider Employer’s failure to present evidence on these issues. Contrary to
Employer’s allegations, the WCJ did not “venture[] into the realm of
unreasonableness” by taking these issues into consideration even though Claimant
did not address these issues in her testimony because Employer, not Claimant, had
the burden to establish its entitlement to a suspension of benefits in this case. See
Vista Int’l Hotel, 742 A.2d at 654. In order to establish that it was entitled to a
15
suspension of benefits in this case, Employer was required to establish that the
modified-duty positions were within Claimant’s restrictions and that the
modified-duty positions were available to Claimant. By failing to present evidence
of the issues identified above, Employer could not meet its burden of proof because
Employer could not establish that the modified-duty positions were within
Claimant’s restrictions or that the modified-duty positions were available to
Claimant. See Kachinski, 532 A.2d at 380. In addition, even though Dr. Snell
admitted on cross-examination that Claimant was objectively capable of performing
the modified-duty positions, that Claimant’s pain complaints were what was limiting
her ability to perform the modified-duty positions, and that he would encourage
Claimant to perform the modified-duty positions, Dr. Snell continued to restrict
Claimant to sedentary/office work with no lifting greater than 10 to 20 pounds. Dr.
Snell also indicated that he was unable to relieve Claimant’s pain and that he
believed that Claimant’s thoracic pain was chronic and would never resolve. For
these reasons, we conclude that there is substantial evidence of record to support the
WCJ’s finding that the 3 modified-duty nursing positions offered by Employer did
not fall within Claimant’s existing work restrictions.
Accordingly, we affirm the Board’s order.
P. KEVIN BROBSON, Judge
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Interim HealthCare of Pittsburgh :
and Sedgwick Claims Management :
Services, Inc., :
Petitioners :
:
v. : No. 789 C.D. 2018
:
Workers’ Compensation Appeal :
Board (Pavis), :
Respondent :
ORDER
AND NOW, this 21st day of February, 2019, the order of the Workers’
Compensation Appeal Board is hereby AFFIRMED.
P. KEVIN BROBSON, Judge