R. Soose v. WCAB (PSC Metals, Inc.) ( 2015 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert Soose, :
Petitioner :
:
v. : No. 549 C.D. 2014
: SUBMITTED: November 26, 2014
Workers’ Compensation Appeal :
Board (PSC Metals, Inc.), :
Respondent :
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE LEADBETTER FILED: August 6, 2015
Claimant Robert Soose petitions for review of the order of the
Workers’ Compensation Appeal Board (Board), affirming the suspension of
Claimant’s indemnity benefits based upon his employer’s offer of an available job
within the occupational category for which Claimant had been cleared to work.
The issue on appeal is whether the credited evidence regarding the pain Claimant
could suffer in the available job precludes a finding that he can actually perform
the job. After review, we affirm.
Claimant sustained a totally disabling work-related right foot fracture
in November of 2009.1 While discussed in more detail below, Claimant has been
plagued with foot pain and swelling following the injury. In September of 2010,
David Vermeire, MD, an orthopedic surgeon, examined Claimant at the request of
his employer, PSC Metals, Inc. (Employer). Following that examination, Dr.
Vermeire concluded that Claimant could perform the job of Mechanical Gas Cutter
Operator, a job available with Employer; the job is a full-time, light duty position,
which requires the operator to sit in a booth (cab) to operate a mechanical torch
with hand controls. The operator can sit and stand as needed and leave the booth
or cab to move about on the outside platform. While the machine operator is
normally required to wear steel-toed boots, Employer approved the use of a lighter
composite boot and offered to provide one boot in a slightly larger size to enable
Claimant to more easily take the shoe on and off and to accommodate swelling of
his foot.
Employer sent Claimant a Notice of Ability to Return to Work and
offered him the aforesaid job by letter dated February 7, 2011. Claimant did not
respond to the job offer, which led Employer to file its suspension petition. In his
answer to the petition, Claimant denied that he could perform the job and averred
that his treating physician had not released him to perform the position.
The matter was eventually litigated before the workers’ compensation
judge (WCJ), who resolved the petition in Employer’s favor. In addition to
describing his pain and discomfort, Claimant testified regarding the various
reasons that he believed the job was unsuitable, including his chronic pain,
1
The injury occurred when a piece of steel weighing 1,500 to 2,000 pounds fell on the arch
of Claimant’s foot, fracturing multiple bones in the mid-foot and damaging various soft tissues.
2
inability to walk to the job site, navigate through the jobsite, climb the steps to
access the area where he would work, sit for six to eight hours, and wear the
required footwear.2
Dr. Vermeire, who testified on behalf of Employer, opined that
Claimant could not return to his time-of-injury position because it required
standing for long periods of time on uneven surfaces. The doctor noted that
Claimant walks with a slight antalgic limp and that his feet were mildly swollen
upon examination. The doctor agreed that prolonged standing or activity would
tend to increase the swelling in Claimant’s foot. According to Dr. Vermeire,
however, Claimant could perform light-duty work that involved limited amounts of
standing and walking. Dr. Vermeire specifically opined that Claimant could
perform the job offered by Employer and that the requirement that he wear
protective footwear would not preclude him from performing the job, stating that
he didn’t “see any problem [with it],”3 and noting that if Claimant gets a little
swelling in his foot, “it might be advisable for him to wear a slightly oversized
shoe for that reason.” R.R. at 124a (Deposition transcript at 36). The doctor
acknowledged on cross-examination that while wearing a shoe would not increase
Claimant’s swelling, “[i]f the foot became swollen and it was tight in the shoe, it
might cause some increased pain.” Id. at 128a (Deposition transcript at 50).
In opposition, Claimant offered the deposition testimony of his
treating physician, Barry Hootman, M.D. According to Dr. Hootman, Claimant
2
According to Claimant, he has constant pain in his right foot, even when sitting, and uses a
cane to walk ninety percent of the time because he cannot walk on uneven surfaces or use stairs.
He rated his pain as a nine out of ten on a ten-level pain scale, and indicated that he can only
stand for fifteen to twenty minutes at a time. Claimant further noted that he cannot wear the boot
required to do the job and even finds tennis shoes to be uncomfortable.
3
Reproduced Record (R.R.) at 124a (Deposition transcript dated August 17, 2011, at 37).
3
suffers from pain, stiffness, swelling, lack of mobility, limp, difficulty walking on
uneven ground, and difficulty with the fit of shoes and getting boots on. 4 The
doctor opined that Claimant is unable to perform the available job due to his
chronic foot pain and he did not believe that Claimant could tolerate wearing the
protective boots. Dr. Hootman testified on direct examination:
Q. Did you have any comments on any of the findings by
Dr. Vermeire or opinions?
A. … The other thing is . . . as far as those work boots
that were – they talked about, sure he can get them on,
he’s not going to do himself any damage. But, boy
they’re going to hurt.
....
Q. In your opinion, would Mr. Soose be able to wear
[the composite] boot on an eight-hour day, five days a
week?
A. Again, I can’t measure his pain, but I sure think
anything that’s stiff enough to satisfy work requirements,
whether it [is] steel[-]toed or not, is going to be awfully
uncomfortable. Like I said, he’s even uncomfortable in
tennis shoes, which is [sic] a lot more comfortable than
something like this.
Again, he wouldn’t do himself any harm by
putting this on and wearing it eight hours a day, five days
a week. He’s not going to do himself any damage. His
foot’s going to –his foot swells towards the end of the
day, so he has to be careful with sizing and things like
that. But he’s not going to do himself any damage. He’s
not going to break anything or do any tendon damage or
nerve damage by wearing any kind of boot, any kind of
shoe.
R.R. at 257a (Deposition testimony at 24-25).
4
According to Dr. Hootman, tennis shoes are usually the most comfortable footwear for
patients with injuries similar to Claimant’s because they are light-weight, have an elevated heel
and allow for swelling. Apparently, the composite boot is still a stiffly-made boot.
4
Crediting Dr. Vermeire and Employer’s witnesses,5 the WCJ found in
pertinent part:
[T]he job duties of the mechanical gas cutter operator job
[the job] were within the claimant’s work related
physical restrictions as testified to by Dr. Vermeire and
that although the claimant may have some pain and
swelling in his foot, there is no medical or orthopedic
reason why the claimant should not be able to perform
the work on a sustained basis of eight hours a day, five
days a week. . . . [I] specifically reject the testimony of
the claimant as he appeared at the hearings using a cane
while the investigative reports and video did not show the
claimant using a cane. Additionally, I accept, in part, the
testimony of Dr. Hootman [claimant’s treating
physician], that although the claimant’s wearing of a
composite boot may cause pain, it would not cause any
orthopedic harm or worsening of the claimant’s
orthopedic condition as he was disabling the claimant
from work based on the claimant’s subjective complaints
of pain. I do not dispute that the claimant has pain
complaints and objective findings of stiffness, swelling
and lack of mobility as testified to by Dr. Hootman but I
find that these subjective and objective complaints and
findings would not prevent the claimant from performing
the [job] as testified to by Dr. Vermeire which is
essentially a sedentary job allowing the claimant to stand,
walk or sit at his discretion.
5
In addition to the medical opinions, the credited testimony of Jason Ludock, a yard
manager for Employer, addressed many of Claimant’s objections to the job. Specifically,
Ludock noted that there would be sufficient lighting for Claimant to see where he was walking in
the yard, Claimant could stand or sit as desired, there would be a minimum number of stairs to
climb, a radio would be provided for Claimant to use when assistance of a co-worker was
required (thereby minimizing additional walking) and the areas where Claimant would walk
would be kept free of debris.
5
WCJ’s Decision, Finding of Fact No. 19 (June 21, 2012). Accordingly,
concluding that the available job fell within Claimant’s restrictions, the WCJ
suspended Claimant’s benefits. The Board affirmed.
On appeal, Claimant essentially argues that the Board committed legal
error in suspending his benefits based upon the availability of the offered job
because the credited evidence establishes both that he continues to suffer chronic
foot pain and swelling from the work injury and that performance of the job will
increase his pain. Claimant further argues that Brobst v. Workers’ Compensation
Appeal Board (Schuylkill Products, Inc.), 824 A.2d 411 (Pa. Cmwlth. 2003), relied
upon by the Board (and Employer) as controlling, is distinguishable, and that
application of the holdings in Chavis v. Workmen’s Compensation Appeal Board
(Port Authority of Allegheny County), 598 A.2d 97 (Pa. Cmwlth. 1991) and
Crowell v. Workmen’s Compensation Appeal Board (Johnson Dairy Farm), 665
A.2d 30 (Pa. Cmwlth. 1995), command the conclusion that the offered job was not
available.
Claimant also suggests that the suspension of his benefits based upon
the offered job is inconsistent with the WCJ’s finding that the job could cause
“intolerable” pain. Specifically, Claimant argues:
[T]he WCJ also accepted as credible and undisputed that
Mr. Soose would experience pain, in some cases
“intolerable” if he were to do the job on a full duty basis.
In this regard, the WCJ specifically accepted as credible
and found as fact and the Board affirmed that both Dr.
Vermeire and Dr. Hootman believed that performing the
job would cause Mr. Soose pain and swelling. Moreover,
the WCJ accepted and the Board affirmed both the
Claimant’s testimony and Dr. Hootman’s opinion that the
job would cause pain stating as follows: “I do not dispute
that Claimant has pain complaints and objective findings
6
of stiffness, swelling and lack of mobility as testified to
by Dr. Hootman . . . .”
Petitioner’s Amended Brief at 36.
There is no dispute that an employer may modify a claimant’s benefits
by offering an available job that meets a claimant’s physical restrictions. See
generally Kachinski v. Workmen’s Comp. Appeal Bd. (Vepco Constr. Co.), 532
A.2d 374 (Pa. 1987); Finley v. Workers’ Comp. Appeal Bd. (USX Corp.), 811
A.2d 1081 (Pa. Cmwlth. 2002). The fact that a work injury still causes a claimant
pain or discomfort does not preclude a suspension of benefits if the injury is not
totally disabling and suitable work within the claimant’s restrictions is available.
See generally Brobst. We begin our analysis with a short review of Chavis,
Crowell and Brobst.
In Chavis, like the present case, the employer sought to modify the
benefits of its disabled employee based upon the availability of six different light
duty positions. Based upon the claimant’s physician’s credited testimony that the
claimant could physically perform each of the jobs, the referee modified benefits
and the Board affirmed.6 This court reversed on appeal, noting that the treating
physician had unequivocally stated that performance of the referenced jobs would
cause the claimant pain. Because the evidence demonstrated that the claimant
“could not perform the duties of those positions for any appreciable duration or
without incurring chronic pain,” we concluded that the claimant’s disability
continued. 598 A.2d at 100-01.
Subsequently, in Crowell, the claimant sustained a disabling work-
related foot injury while working as a farm hand. The claimant sought a
6
WCJs were formerly known as referees.
7
reinstatement of benefits when he was laid off from a light duty position with
another employer. The claimant’s treating physician, the only medical expert to
testify, stated that he approved the claimant’s return to light duty work and that
although the claimant could physically perform his previous duties of a farm hand,
the performance of those duties would not only cause significant pain, but the
lifting involved in that position could cause the claimant to fall, injuring himself or
others. Because the doctor had opined that the claimant could perform his prior
duties, the WCJ denied the reinstatement petition. Noting that the WCJ found that
the claimant would incur pain if he returned to his time-of-injury job, we
concluded that the claimant remained disabled, stating “we believe it is inherently
unfair and contrary to the humanitarian purpose underlying the Workers’
Compensation Act[7] to force any claimant to choose between receiving no benefits
at all and returning to the work force under conditions which will cause him
continuing pain and may potentially cause him further injury.” 665 A.2d at 33
[citing for support Chavis and Farquhar v. Workmen’s Comp. Appeal Bd.
(Corning Glass Works), 528 A.2d 580 (Pa. 1987) (holding that, claimant entitled to
benefits even though she could perform time-of-injury job and was symptom free
because continued employment would place her at risk of serious injury from
blood clot caused by original work injury)].
Finally, in Brobst, this court affirmed the suspension of benefits based
upon the availability of a light-duty, sedentary job, which involved sitting in a tool
room to ensure workers signed-out needed tools. There, the credited medical
evidence demonstrated that the claimant, whose work injury included reflex
sympathetic dystrophy (RSD), had chronic pain, would experience pain whether or
7
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1 – 1041.4, 2501 – 2708.
8
not he performed the light-duty, sedentary job and that, although his pain could
increase with fatigue, the doctor opined that he was still capable of performing the
tool room job. In concluding that the job was available, we stated: “[T]his is not a
case like Chavis where Claimant could avoid pain from RSD by not performing
certain job duties. Claimant will suffer pain from RSD whether or not he performs
the tool room job. Moreover, the evidence establishes that Claimant’s pain is not
so great that it would disable him from performing the tool room job, even if his
pain were to increase with fatigue.” 824 A.2d at 415-16 (emphasis in original and
added, footnote omitted).
After a review of the credited evidence and the above case law, we
conclude that substantial evidence supports the conclusion that the proffered job
constituted available work within Claimant’s restrictions. Although Claimant
continues to suffer pain, discomfort and limitations from his work injury, it is clear
that the WCJ did not find the injury as disabling or limiting as Claimant described,
and similar to the facts in Brobst, there is credited medical evidence that the job
fits within Claimant’s medical restrictions. Moreover, as in Brobst, the credited
medical evidence as a whole establishes that the available job will not cause a
disabling increase in Claimant’s pain, nor cause any risk of further harm. While
the WCJ accepted the treating physician’s opinion that the composite boot may
cause pain, the WCJ did not accept that doctor’s opinion that Claimant’s pain was
disabling, preventing a return to work, or that Claimant would experience disabling
pain if he performed the available Mechanical Gas Cutter Operator job. According
to Dr. Hootman, Claimant experiences discomfort with all footwear. Both doctors
testified that wearing a slightly larger boot to accommodate swelling would be
beneficial. In reaching this conclusion, we obviously reject Claimant’s suggestion
9
that the WCJ found that Claimant would experience pain, including intolerable
pain, and swelling if Claimant performed the job at issue. A close reading of the
credited medical testimony and the WCJ’s findings belies this contention.
Accordingly, we affirm the decision of the Board.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert Soose, :
Petitioner :
:
v. : No. 549 C.D. 2014
:
Workers’ Compensation Appeal :
Board (PSC Metals, Inc.), :
Respondent :
ORDER
AND NOW, this 6th day of August, 2015, the order of the Workers’
Compensation Appeal Board is hereby AFFIRMED.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Judge