Lower Moreland Twp. v. J. MacDonald (WCAB) ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lower Moreland Township, :
Petitioner :
:
v. : No. 262 C.D. 2022
:
John MacDonald (Workers’ :
Compensation Appeal Board), :
Respondent : Submitted: August 19, 2022
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE CEISLER FILED: December 19, 2022
Lower Moreland Township (Employer) petitions this Court for review of the
March 16, 2022 order of the Workers’ Compensation Appeal Board (Board),
affirming the decision of a workers’ compensation judge (WCJ) that assigned John
MacDonald (Claimant) a weekly earning power of $834.20. The issue on appeal is
whether the WCJ miscalculated Claimant’s earning power. After review, we affirm.
I. Background
Claimant suffered a work injury on February 24, 2014, while employed as a
police officer. Certified Record (C.R.), Item No. 30. Employer accepted the work
injury through issuance of a notice of compensation payable (NCP), which described
Claimant’s injury as a contusion and strain/sprain of his back and right ankle and
foot. Id. Claimant received total disability benefits in the amount of $932 per week
based on an average weekly wage (AWW) of $1,786.94. Id. Following Claimant’s
receipt of pension benefits in 2016, his weekly disability benefit was reduced by
$56.31. C.R., Item No. 22. On May 1, 2018, the parties executed a third-party
agreement granting Employer a subrogation interest in Claimant’s receipt of a third-
party settlement. C.R., Item No. 29.
On June 28, 2019, Employer filed a petition to modify Claimant’s benefits
based on an earning capacity and labor market survey (LMS) performed by Michael
Smychynsky, a certified rehabilitation counselor, which determined that Claimant
had an earning capacity of at least $1,538 per week. C.R., Item No. 2. Claimant
denied the allegations and filed a review petition seeking to amend the description
of his work injury to include a herniated disc at L5-S1. Id., Item Nos. 4, 5. Employer
admitted the allegations in Claimant’s review petition, thereby acknowledging that
Claimant’s work injury included the additional diagnosis. Id., Item No. 7.
In support of its modification petition, Employer presented the deposition
testimony of Dennis McHugh, D.O., who conducted an independent medical
examination (IME) of Claimant, and Mr. Smychynsky.1 Claimant presented his
testimony from a May 7, 2019 deposition and the deposition testimony of his treating
physician, Gene Salkind, M.D. Claimant also testified live during a July 23, 2020
hearing before the WCJ.
A. Employer’s Evidence
Dr. McHugh examined Claimant on February 7, 2019. C.R., Item No. 27,
McHugh Dep., 2/7/19, at 8. At that time, Claimant advised Dr. McHugh that he was
not receiving any treatment related to his work injury, or regularly taking any
medication to treat his residual symptoms, which consisted of pain over the center
1
Employer also presented the testimony of its township manager, Christopher Hoffman,
who related that Employer had no positions within Claimant’s physical, educational, and
vocational abilities. Mr. Hoffman’s testimony, which the WCJ credited, is not relevant to our
disposition of this matter and we need not summarize it further.
2
of his lower back that radiated into his right leg. Id. at 11-12. Claimant would
occasionally use Aleve for pain. Id. at 12. During Dr. McHugh’s physical
examination, Claimant exhibited tenderness in his lower back, and he felt some
tightness in his right hamstring when bending forward. Id. at 13-14. The result of
Claimant’s straight leg raise test was normal, as were the results of Claimant’s
strength and manual muscle testing. Id. at 14-16.
Dr. McHugh opined that Claimant sustained a small, right-sided L5-S1 disc
herniation as a result of the February 24, 2014 work injury. Id. at 19. While Dr.
McHugh did not believe that Claimant had fully recovered from his work injury, he
felt Claimant could return to work in a modified capacity, with Claimant restricted
to lifting no more than 20 pounds and carrying objects weighing no more than 10
pounds. Id. at 19-20. Dr. McHugh approved five positions for which Mr.
Smychynsky prepared detailed job analyses as falling within Claimant’s physical
restrictions. Id. at 20-21. Detailed job analyses were not provided for 12 additional
positions identified in the LMS; however, on the day he testified, Dr. McHugh was
provided the name of each employer, the relevant job title, and whether the position
was considered light, medium, or heavy duty. Id. at 21, 25. Dr. McHugh believed
those positions also complied with Claimant’s restrictions. Id. at 21.
Mr. Smychynsky testified that he prepared Claimant’s LMS after reviewing
Dr. McHugh’s IME report, Claimant’s educational, occupational, and medical
history, as well as his daily activities and interest.2 C.R., Item No. 25, Smychynsky
Dep., 2/7/19, at 9, 13, 21. Based on the documentation he reviewed, Mr.
Smychynsky opined that Claimant possessed transferable skills that would allow
2
Mr. Smychynsky was unable to schedule a vocational interview with Claimant; however,
he derived the necessary information from Claimant’s deposition testimony. Smychynsky Dep. at
11-12.
3
him to work in a variety of occupations, with an entry-level earning capacity “up to
approximately $80,000 per year,” resulting in an AWW of $1,538. Id. In identifying
suitable positions, Mr. Smychynsky focused primarily on Claimant’s training and
experience in law enforcement and his ability to interact with the public, skills that
Mr. Smychynsky felt applied to sales-based positions. Id. at 20, 27. Mr.
Smychynsky provided complete job analyses for 5 of the 17 positions he identified
in the LMS, which he based on information directly received from each employer.
Id. at 30-31. As to those five positions, Mr. Smychynsky felt they were
unquestionably appropriate, and any modifications required would be within Dr.
McHugh’s restrictions.3 Id. at 33. While Mr. Smychynsky spoke to each employer
for the 17 positions listed in the LMS, he did not see all those jobs performed “in
person.” Id.
Mr. Smychynsky acknowledged that automobile sales positions are
commission-based, although “[m]ost of the” sales positions he reviewed also offered
“a weekly or monthly guarantee.” Smychynsky Dep. at 34. An individual “who
really hustles . . . can easily make over $100,000 per year.” Id. at 35. Although one
of the automobile sales positions paid “up to $100,000” per year, with commissions
and incentives, Mr. Smychynsky considered that amount of compensation an
“outlier,” and he felt that $80,000 per year was a “more reasonable LMS” of what
Claimant could earn in the industry. Id. at 39-40. During cross-examination, Mr.
Smychynsky admitted that, to his knowledge, Claimant had never held any of the
3
The five positions were identified as follows: dispatcher for Universal Atlantic Systems,
which paid $16-$17 dollars per hour, security surveillance with Sugarhouse Casino, with a starting
salary of $48,000-$52,000 per year, telecommunicator with Montgomery County, which offered a
starting salary of $35,605, sales representative with Professional Sports Publications, which paid
a base salary of $40,000, plus commissions, and an automobile sales position with Del Chevrolet
that paid a base salary, plus commissions, ranging from $60,000-$100,000 per year. C.R., Item
No. 25, Ex. 6.
4
positions identified in the LMS, or any type of commission-based job. Id. at 47. As
of June 25, 2019, all 17 positions were open and available. Id. at 57.
B. Claimant’s Evidence
Claimant acknowledged that he no longer took medication or received
physical therapy to treat the symptoms from his work injury. C.R., Item No. 23,
Claimant Dep., 5/7/19, at 9. He can shower, dress, and groom himself, and he
performs chores around the house and runs errands. Id. at 30-31. Claimant admitted
that, since his work injury, he has not attempted to return to the workforce. Id. at
34. Of the skills required of a police officer, Claimant stated that the ability to
communicate was “absolutely” important, and that, through his job with Employer,
Claimant developed a good work ethic, and good social skills and investigative
techniques. Id. at 14-15. During his subsequent testimony on July 23, 2020,
Claimant stated that he had never held a commission-based job or worked in sales
or as a customer-service representative. C.R., Item No. 17, Notes of Transcript
(N.T.), 7/23/20, at 16-17.
In his March 4, 2020 deposition, Dr. Salkind testified that he first examined
Claimant on September 29, 2014. C.R., Item No. 19, Salkind Dep., 3/4/20, at 10.
Based on Claimant’s diagnostic studies and a physical examination, Dr. Salkind
diagnosed Claimant with L5-S1 disc herniation with associated right S1
radiculopathy. Id. at 14. Despite surgery performed to address Claimant’s
condition, Claimant continued to experience right-sided radiculopathy. Id. at 16. At
Dr. Salkind’s most recent evaluation on October 17, 2019, Claimant advised he
treated his symptoms with Aleve, as needed. Id. During that examination, Claimant
expressed right leg pain during the straight leg raise test. Id. at 16. Otherwise,
Claimant’s examination was normal. Id. Dr. Salkind felt that Claimant could return
5
to work of a sedentary nature. Id. at 19. He felt that light duty was excessive,
considering Claimant’s condition, which Dr. Salkind opined was permanent. Id. at
20. Dr. Salkind agreed that he did not treat Claimant between February 1, 2018, and
October 21, 2019. Id. at 24.
C. WCJ’s Decision
In a decision circulated on June 29, 2021, the WCJ credited Claimant’s
testimony regarding his physical limitations to the extent they were consistent with
the opinions of Dr. McHugh, whose testimony the WCJ accepted in its entirety.
Finding of Fact (F.F.) Nos. 15-16. Based on his observation of Claimant during his
testimony, and Claimant’s educational and vocational background, the WCJ found
that Claimant was well-suited for work in customer-oriented occupations, such as
sales. F.F. No. 15.
The WCJ accepted Dr. Salkind’s testimony, except where it conflicted with
Dr. McHugh’s testimony, as Dr. Salkind had not actively treated Claimant since
February 2018, and he only examined Claimant once thereafter, on October 21,
2019. F.F. Nos. 16, 19. At that time, Dr. Salkind did not prescribe Claimant
additional treatment. Id. Claimant acknowledged that he has not treated for his
lower back condition since February 2018, and that he performs a variety of
activities that comport with Dr. McHugh’s assessment of Claimant’s ability to work.
F.F. No. 16. Dr. McHugh’s physical examination of Claimant revealed no
substantial physical abnormalities, findings that were “virtually identical” to Dr.
Salkind’s. Id.
The WCJ credited Mr. Smychnysky’s opinion regarding Claimant’s
vocational aptitude and the five positions he located for Claimant that Dr. McHugh
specifically approved. F.F. No. 18. He rejected, however, Mr. Smychnysky’s
6
opinion that Claimant could earn up to $100,000 in an entry-level automobile sales
position. Id. Given that Claimant had never worked in sales, the WCJ found Mr.
Smychnysky’s opinions unpersuasive and speculative as to the amount of
commissions Claimant could earn. Id. The WCJ found it credible that Claimant
could earn $60,000 in an entry-level position with Del Chevrolet. Id. Regarding the
additional 12 positions identified in the LMS, the WCJ noted that Dr. McHugh
reviewed those job descriptions, without further details, on the date of his deposition.
F.F. No. 16.
Accordingly, the WCJ found that Claimant was capable of working in a full-
time, light-duty capacity, and that five positions were available within Claimant’s
geographic location that met his physical, educational, and vocational capabilities.
F.F. No. 21. After averaging the weekly compensation for those five positions, the
WCJ found that Claimant had an earning capacity of $834.20 per week. F.F. No.
22. Because Employer admitted that the description of Claimant’s work injury
included a disc herniation at L5-S1, the WCJ amended the NCP accordingly. F.F.
No. 6; Conclusion of Law (C.L.) No. 2. The WCJ declined Claimant’s request for
reimbursement of litigation costs. F.F. No. 24.
Employer appealed to the Board, arguing that the WCJ erred in failing to
consider all 17 positions identified in the LMS, that the WCJ incorrectly calculated
Claimant’s earning capacity, and that the WCJ failed to issue a reasoned decision.
C.R., Item No. 9. The Board rejected Employer’s arguments and affirmed the WCJ,
as the WCJ explained why he credited or rejected the evidence. C.R., Item No. 13
at 19. Dr. McHugh approved five positions in the LMS, for which Mr. Smychynsky
provided detailed job analyses. Id. at 12. As for the remaining 12 positions, Dr.
McHugh was only able to briefly review those job descriptions just prior to his
7
deposition testimony. Id. The Board also agreed with the WCJ’s conclusion that
Mr. Smychynsky overestimated Claimant’s earning capacity in a commission-based
position for which he had no experience. Id. at 7. Finally, the Board concluded that
the WCJ did not err in calculating Claimant’s earning capacity, as that issue is a
question of fact for the WCJ, and the WCJ’s findings were supported by substantial
evidence. Id. at 5, 16.4 This appeal followed.5
II. Issues
On appeal, Employer argues that, when calculating Claimant’s earning
capacity, the WCJ misapprehended and disregarded the evidence and ignored the
plain language in Section 306(b)(2) of the Act.6
III. Discussion
Section 306(b) of the Act, 77 P.S. § 512, establishes the schedule of
compensation for partial disability. An employer seeking to modify a claimant’s
benefits under Section 306(b)(2) of the Act must either offer the claimant a specific,
available job that he can perform or establish the claimant’s earning power through
expert opinion evidence. Select Sec., Inc. v. Workers’ Comp. Appeal Bd. (Kobrin),
4
Claimant also appealed the WCJ’s decision, arguing that the WCJ erred in failing to award
him litigation costs. C.R., Item No. 11. The Board affirmed the WCJ on this issue, as Employer
admitted that Claimant’s work injury included a disc herniation at L5-S1, and, therefore, Claimant
did not prevail on any contested issue. C.R., Item No. 13. Claimant did not appeal the Board’s
order.
5
Our review is limited to determining whether constitutional rights have been violated,
whether an error of law has been committed, and whether necessary findings of fact are supported
by substantial evidence. Universal Am-Can, Ltd. v. Workers’ Comp. Appeal Bd. (Minteer), 762
A.2d 328, 331 n.2 (Pa. 2000). Substantial evidence is relevant evidence that a reasonable mind
would deem adequate to support a conclusion. Iacono v. Workers’ Comp. Appeal Bd. (Chester
Housing Auth.), 624 A.2d 814, 817 (Pa. Cmwlth. 1993).
6
77 P.S. § 512(2).
8
901 A.2d 1129, 1132 (Pa. Cmwlth. 2006). The assessment of a claimant’s earning
power is a question of fact to be determined by the WCJ. Id. “Earning power”
under Section 306(b)(2) of the Act is determined by the work a claimant is capable
of performing and job availability “in the usual employment area.” 77 P.S. § 512(2).
Employer argues that the WCJ misapprehended Mr. Smychynsky’s testimony
that Claimant could earn an entry level salary of $100,000 in automobile sales, that
the WCJ improperly rejected Mr. Smychynsky’s salary estimations as speculative
and inflated, and that the WCJ should have based Claimant's earning power on all
17 positions identified in the LMS.7 Finally, Employer argues that the WCJ ignored
the plain language of Section 306(b)(2) when he calculated Claimant’s earning
power by averaging the salaries for the five positions approved by Dr. McHugh.
Employer asserts that, at a minimum, the WCJ should have based Claimant’s earning
power on the $60,000 entry-level salary with Del Chevrolet.
First, we will address Employer’s arguments that the WCJ misapprehended or
disregarded the evidence. The WCJ is the ultimate finder of fact and exclusive
arbiter of credibility and evidentiary weight. LTV Steel Co., Inc. v. Workers’ Comp.
Appeal Bd. (Mozena), 754 A.2d 666, 676 (Pa. 2000). The WCJ is free to accept or
reject, in whole or in part, the testimony of any witness, and the WCJ is not required
to accept even uncontradicted evidence. Newcomer Prod. v. Workers’ Comp.
Appeal Bd. (Irvin), 826 A.2d 69, 74-75 (Pa. Cmwlth. 2003). So long as the findings
of the WCJ are supported by substantial evidence, they must be accepted as
conclusive on appeal. Id. It does not matter that the record supports a contrary
7
While Employer raises multiple issues for this Court’s consideration, several issues
overlap, and all but one concern the WCJ’s determinations with respect to Mr. Smychynsky’s
testimony and the LMS. As a result, we have consolidated and reordered the issues for the sake
of clarity and efficiency.
9
finding; the pertinent inquiry is whether there is substantial evidence to support the
findings made. Hoffmaster v. Workers’ Comp. Appeal Bd. (Senco Prods., Inc.), 721
A.2d 1152, 1155 (Pa. Cmwlth. 1988).
Employer argues that the WCJ mischaracterized Mr. Smychynsky’s testimony
when he rejected Mr. Smychynsky’s opinion that Claimant could earn up to
$100,000 in automobile sales as speculative and unpersuasive. In fact, Mr.
Smychynsky testified that a salary of $100,000 was “an outlier” and $80,000 was a
more reasonable estimate of what Claimant could earn as an entry-level automobile
salesman. As a result of this misapprehension of the evidence, Employer requests
that this Court remand this matter for a recalculation of Claimant’s earning power.
Employer is correct that Mr. Smychynsky testified $100,000 for an entry-level
sales position was “a little bit of an outlier[.]” C.R., Item No. 25, Smychynsky Dep.
at 40. Mr. Smychynsky also stated that some dealerships “identified [$100,000 per
year] as a very reasonable goal to attain[.]” Id. Furthermore, the LMS Mr.
Smychynsky prepared clearly indicates that the position with Del Chevrolet paid a
salary ranging from $60,000-$100,000 per year, with an average of $80,000,
annually. C.R., Item No. 25, Ex. 5. Mr. Smychynsky’s detailed job analysis for that
position likewise indicates it would pay a “[b]ase salary + commissions of $60,000-
$100,000/ year[,]” with an average salary of $80,000 per year. Id., Ex. 6. Another
position Mr. Smychynsky located and included in the LMS, “auto sales consultant,”
paid a range of $50,000-$100,000 with commissions and incentives. Id., Ex. 5. As
the record supports the WCJ’s finding that Mr. Smychynsky opined Claimant could
earn up to $100,000 in automobile sales, we reject Employer’s argument that the
WCJ somehow misapprehended the evidence or mischaracterized Mr.
Smychynsky’s testimony.
10
In a similar vein, Employer argues that the WCJ erred in rejecting Mr.
Smychynsky’s salary estimates as speculative and unpersuasive, because Mr.
Smychynsky’s calculations recognized Claimant’s lack of sales experience and
Claimant presented no evidence to contradict the data or opinions expressed in the
LMS. Therefore, Employer contends that the WCJ’s findings are a “legal nullity,”
as they fail to consider evidence relating to the “substantial commissions” Claimant
could have earned in automobile sales. Employer’s Br. at 39.
As we have already discussed, Mr. Smychynsky indicated that Claimant could
earn up to $100,000 with two of the positions listed in the LMS. Mr. Smychynsky
felt that $80,000 per year was a “more representative sample of what” Claimant
could earn in his first year of sales. Id. Although the WCJ did not explicitly
discredit Mr. Smychynsky’s testimony in this regard, the WCJ did so implicitly by
finding that, given Claimant’s lack of sales experience, Claimant could earn an
entry-level salary of $60,000 with Del Chevrolet, a sum identified in Mr.
Smychynsky’s LMS and the detailed job analysis he prepared for Del Chevrolet. As
the ultimate finder of fact, the WCJ may accept or reject, in whole or in part, the
testimony of any witness, even that which is uncontradicted, and this Court may not
overturn his findings if they are supported by substantial evidence. The WCJ’s
finding that Claimant could earn $60,000 in automobile sales does not lack support
in the record simply because Employer feels he could earn more. This Court came
to a similar conclusion in Select Sec., Inc., in which we upheld a WCJ’s
determination that, where a claimant had no prior sales experience, his earning
power should be based on an average of the “low end” for each salary identified in
a LMS. Select Sec., Inc., 901 A.2d at 1133.
11
Employer’s argument that the WCJ erred in failing to consider all 17 positions
identified in the LMS is similarly unpersuasive. In crediting Dr. McHugh’s
testimony, the WCJ explained that Dr. McHugh reviewed and approved the five job
descriptions sent to him by Mr. Smychynsky. The job analysis Mr. Smychynsky
prepared for each of these positions was based on information he directly received
from the employer and included information pertaining to the specific physical
requirements of the position, such as the amount of standing, sitting, walking, and
driving required, whether the position involved activities such as kneeling, stooping,
or reaching, and the type of equipment and tools used for the position. C.R., Item
No. 25, Smychynsky Dep., Ex. 5. Dr. McHugh was not provided similar analyses
for the remaining 12 positions. For these positions, Dr. McHugh was only apprised,
just prior to his deposition, of the employer’s name, the job title and salary, and
whether the position entailed light or sedentary work. Id., Ex. 6. It was within the
WCJ’s purview to give greater weight to those positions for which Mr. Smychynsky
provided detailed analyses, and we will not overturn that determination on appeal.
Finally, Employer argues that the WCJ calculated Claimant’s earning power
in contravention of Section 306(b)(2) of the Act, which requires a determination of
a claimant’s “earning power,” not an “average earning power.” Employer’s Br. at
47. Therefore, by averaging the estimated salaries for the five positions Dr. McHugh
approved prior to his deposition, the WCJ failed to determine Claimant’s earning
power under Section 306(b)(2). Employer contends that, at a minimum, the WCJ
should have based Claimant’s earning power on the $60,000 he found Claimant
could earn from Del Chevrolet. In support of its argument, Employer cites Kurtiak
v. Workmen’s Compensation Appeal Board (Western Sizzlin’ Steakhouse), 635 A.2d
732 (Pa. Cmwlth. 1993), in which this Court held that a WCJ erred in basing a
12
claimant’s earning power on a part-time position when a full-time position within
the claimant’s limitations was also open and available. Employer interprets Kurtiak
as mandating that a WCJ base a claimant’s earning power on the open and available
position providing the greatest degree of earning power.
In Kurtiak, a workers’ compensation referee8 modified a claimant’s benefits
based on an available part-time position that was within the claimant’s physical
limitations. On appeal, the employer argued that the referee erred in failing to
consider a full-time position that was also found to be available and within the
claimant’s capabilities. This Court agreed, as partial disability payments under
Section 306(b) are based upon the difference between the wages the employee
earned at the time of injury and the employee’s earning power after the injury.
Because the referee found that the claimant was approved for full-time employment,
the claimant’s earning power should have been based on the full-time position.
Employer’s reliance on Kurtiak is misplaced, as our disposition in that matter did
not address whether a WCJ could calculate a claimant’s earning power by averaging
the salaries of several positions.
Employer also relies on Marx v. Workers’ Compensation Appeal Board
(United Parcel Service), 990 A.2d 107, 110 (Pa. Cmwlth. 2010), in which we
rejected a claimant’s contention that a WCJ should have based her earning power on
the average of all salaries identified in an LMS. Our holding in Marx does not
prohibit such a calculation, however. Rather, we noted that the assessment of a
claimant’s earning power was a question of fact for the WCJ and an LMS indicating
that the claimant could earn a range of salaries from $140 to $376.60 per week
8
The Act of July 2, 1993, P.L. 190, changed the term “referee” to “workers’ compensation
judge.”
13
constituted substantial evidence supporting the WCJ’s finding that the claimant
could earn the highest salary in that range. Id. at 111.
IV. Conclusion
We discern no legal error in the WCJ’s calculation of Claimant’s earning
power and the WCJ’s findings are supported by substantial evidence. Accordingly,
we affirm the Board’s order.
____________________________
ELLEN CEISLER, Judge
Judge Fizzano Cannon did not participate in the decision of this case.
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lower Moreland Township, :
Petitioner :
:
v. : No. 262 C.D. 2022
:
John MacDonald (Workers’ :
Compensation Appeal Board), :
Respondent :
ORDER
AND NOW, this 19th day of December, 2022, the March 16, 2022 order of
the Workers’ Compensation Appeal Board is hereby AFFIRMED.
____________________________
ELLEN CEISLER, Judge