L. Valenta v. WCAB (Abington Manor Nursing Home and Rehab and Liberty Ins. Co.)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Laurie Valenta, :
Petitioner :
: No. 1302 C.D. 2016
v. :
: Submitted: September 13, 2017
Workers’ Compensation Appeal :
Board (Abington Manor Nursing :
Home and Rehab and Liberty :
Insurance Company), :
Respondents :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE JOSEPH M. COSGROVE, Judge
OPINION BY
JUDGE McCULLOUGH FILED: December 7, 2017
Laurie Valenta (Claimant) petitions for review of the July 1, 2016 order
of the Workers’ Compensation Appeal Board (Board) affirming the decision of the
Workers’ Compensation Judge (WCJ) modifying wage loss benefits paid to Claimant
by Abington Manor Nursing Home and Rehab (Employer) and Liberty Insurance
Corporation (Insurer).
Facts and Procedural History
Claimant had been receiving total disability benefits pursuant to the
Workers’ Compensation Act (Act)1 for a work injury sustained on October 2, 2010, in
which a prior WCJ, by decision circulated September 27, 2012, found she had
aggravated a pre-existing calcific tendinitis with chronic tendinopathy of the left
shoulder, and sustained disc herniations at C5-C6 and C6-C7 with radiculopathy, a left
trapezial strain, left medial scapular strain, and a left posterior shoulder strain. (WCJ’s
Finding of Fact No. 2.)
On January 2, 2014, Insurer commissioned a labor market survey and
earning power assessment (LMS/EPA) pursuant to section 306(b) of the Act.2
(Reproduced Record (R.R.) at 342a.) The LMS/EPA listed six jobs with weekly pay
ranging from $320.00 to $420.00. (R.R. at 297a-319a.)
Employer filed a modification petition seeking to reduce Claimant’s wage
loss benefits because of an alleged earning capacity. Claimant filed a timely answer
denying all material allegations.
In a deposition taken on September 15, 2014, Employer submitted the
medical testimony of Eugene Chiavacci, M.D. Board-certified in orthopedic surgery,
Dr. Chiavacci testified that he examined Claimant twice on behalf of Employer, on
March 29, 2011, and October 1, 2013. Dr. Chiavacci obtained a history of Claimant’s
work injury and surgery, and he testified that he reviewed records, reports, and studies
concerning Claimant’s treatment since the work injury. Among the records he
reviewed was an x-ray of August 19, 2011, which he stated demonstrated a stable
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4; 2501-2708.
2
Act of June 2, 1915, P.L. 736, as amended, added by the Act of June 24, 1996, P.L. 350, 77
P.S. §512.
2
cervical fusion. After performing a physical examination on Claimant at the 2013
examination, he testified that he believed she was capable of standing between one and
three hours at a time; sitting five to eight hours at a time; alternating sitting and standing
between five and eight hours at a time; walking one to three hours at a time; driving
one to three hours at a time; and occasionally bending, squatting, climbing stairs,
reaching up, kneeling, crawling, and frequently using her feet for foot controls. He
testified that he did not believe Claimant could climb ladders, but that she had no
restrictions as to grasping or fine manipulation. He stated that Claimant could
occasionally lift up to twenty pounds and more frequently lift lesser weights. (WCJ’s
Findings of Fact Nos. 7-8.)
Employer also submitted the testimony of Robert Smith, the author of the
LMS/EPA. Mr. Smith testified that he had been a rehabilitation specialist since 1989
and that he had been approved pursuant to the applicable regulations 3 to conduct
interviews for earning power under section 306(b) of the Act. Mr. Smith testified that
he coordinated an initial interview with Claimant and identified reports from Dr.
Chiavacci indicating that Claimant was capable of returning to sedentary to light-duty
work. He noted Claimant’s educational background, which included a high school
diploma and some course work at Keystone Community College. He stated that
Claimant also had training to become a licensed practical nurse (LPN), and once
qualified as an LPN, she worked as a charge nurse and a private duty LPN. He testified
that he performed a transferable skills analysis and calculated that work as an LPN
would be a medium-duty position, and that with Claimant’s background, she was
capable of working in a semi-skilled to skilled area. Mr. Smith then identified six
positions he believed were appropriate for Claimant. (WCJ’s Finding of Fact No. 9.)
3
34 Pa. Code §§123.201-123.205.
3
The first was a position at A. Rifkin as a customer service representative,
which had light duties and lifting up to 20 pounds rarely, along with periods of sitting.
This was a full-time position paying between $10.00 and $13.00 per hour and an ideal
candidate would have three years of customer service experience, communication and
organization skills, multi-tasking ability, attention to detail, and computer and typing
skills.
The second was a full-time position at Telerex as an account
representative, paying $9.00 per hour, which required a high school diploma and
familiarity with computer programs. Helpful but not required was some customer
service experience and an ability to type 35 words per minute.
The third was a full-time position at Navient as a customer service
specialist, which paid $11.00 per hour. The job was sedentary in nature and required
one year of customer service experience. A college degree was preferred but not
required, along with good communication, analytical, and computer skills.
The fourth was a full-time position at Bank of America as a customer
service associate, paying $10.50 per hour. The job was sedentary in nature, with
prolonged sitting, and required no lifting above 10 pounds. The job required
communication, organizational, and computer skills.
The fifth was a position at Hampton Inn as a guest service agent, also full-
time, which paid $8.00 per hour. The job required a high school diploma and included
on-the-job training. It was light-duty and was a front desk clerical job involving
greeting guests, checking them in and out, and processing monetary transactions.
Sixth and finally was another full-time position at Hampton Inn as a night
auditor, paying $8.50 per hour. The job was sedentary in nature with no lifting above
20 pounds. The job required a high school diploma and a “customer service mentality”
4
and it included on-the-job training. All six positions were approved by Dr. Chiavacci,
who stated that Claimant was physically capable of performing them. Mr. Smith
concluded that Claimant’s weekly earning power was $320.00 to $420.00. (WCJ’s
Finding of Fact No. 9.)
Claimant testified at a hearing before the WCJ on January 15, 2015. She
explained that she was working as an LPN for Employer on October 2, 2010, when she
injured her neck. She described ongoing problems since the work injury, with pain
radiating from her neck to a midpoint in her back, as well as left arm pain and pain and
numbness in both hands. She stated that the pain in her back takes her breath away and
that her left shoulder is limited as far as being able to lift. She testified that she takes
medications, including Oxycontin, Oxycodone, Flexeril, Lyrica, and Cymbalta, and
that she has undergone injections to her arm, neck, and back. She noted that she has
not returned to work but would be interested in working if she were physically able.
She stated, however, that even light tasks, such as making dinner or folding clothes,
cause her extreme pain, requiring her to take her prescription medications, which in
turn makes her drowsy and feel the need to sleep. (WCJ’s Findings of Fact Nos. 4-5.)
Concerning the LMS/EPA, Claimant testified that she attempted to apply
to all six positions, but that she was not offered any position. Regarding the customer
service representative position with A. Rifkin, Claimant testified that, although she
lacked a customer background and was unable to type 35 words per minute while
talking on the telephone, she called the number listed in the LMS/EPA on May 28,
2014. She subsequently submitted an online application on June 4, 2014, and received
an email the following day informing her that she would be contacted if more
information was needed or to schedule an interview; however, she never received any
follow up. With respect to the account representative position with Telerex, she
5
testified that, beginning on May 28, 2014, she attempted to phone Telerex nine times,
but the line was always busy. Regarding the customer service position with Navient,
she testified that, although she felt she lacked the necessary skills for the position, she
reached out to the employer on May 28, 2014, and spoke with a representative in human
resources, but did not submit an application until June 2, 2014. Claimant stated that
she received an email advising her that she was not hired around June 9, 2014.
Regarding the customer sales position with Bank of America, Claimant testified that,
on June 2, 2014, she tried to contact the designated contact person listed on the
LMS/EPA, B.J. Berrettini, but was told there was no such person there. She stated that
she gave her contact information but did not receive a call back. Id. Concerning the
customer service and night auditor positions at Hampton Inn, Claimant testified she
initially reached out on May 28, 2014, but was told that the contact person no longer
worked there. The following day, a woman named Staci Borgia called her back and,
according to Claimant, told her that the two positions were no longer available but that
Hampton Inn did have two other positions available: breakfast host and housekeeper.
(R.R. at 188a-91a, 203a-11a; WCJ’s Finding of Fact No. 6.)4
In support of her position, Claimant submitted the deposition testimony of
her treating physician, Dean Mozeleski, M.D. Board-certified in physical and
rehabilitation medicine, Dr. Mozeleski testified that he first treated Claimant in
February of 2011. He testified that because the LMS/EPA was based upon an
examination in September of 2013, he based his testimony on his own examination in
August of 2013. Dr. Mozeleski testified that Claimant’s condition, for which she took
a variety of medications, had progressively worsened since he began treating her. Dr.
4
Throughout her testimony, Claimant relied upon written notes documenting her experience
in applying for the six positions. These notes were admitted into evidence without objection. (R.R.
at 206a.)
6
Mozeleski testified that, as of August of 2013, Claimant’s range of motion in her neck
had decreased in both directions with rotation. He stated that she had maximum
foraminal encroachment, which placed pressure on the neck nerves and radiated pain
into her left arms. He noted that Claimant had a decreased range of motion in her left
shoulder and numbness and tingling in her left arm, extending into the fourth and fifth
digits of her left hand. He testified that he reviewed a cervical MRI from April 24,
2013, which indicated findings consistent with the C-5-7 two-level fusion. He stated
that there was no evidence of disc herniation because it had been surgically corrected
and that the MRI indicated some reversal of cervical lordosis but no intrinsic cord
abnormality. (WCJ’s Finding of Fact No. 10.)
Dr. Mozeleski then testified about an October of 2013 evaluation of
Claimant which indicated decreased rotation in her neck in both directions. He stated
that Claimant also had left arm weakness and some numbness in both hands. He
testified that he saw Claimant in December of 2013, and on April 2, 2014, and, because
she had been suffering from these problems for some time, he labelled it “chronic neck
and left shoulder pain, chronic cervical radiculitis, and chronic neck and upper thoracic
scapular pain.” (R.R. at 26a.) Claimant returned for an office visit on April 25, 2014,
at which time Dr. Mozeleski released Claimant to light, sedentary work with
restrictions because Claimant was only able to sit, stand, or walk for up to a combined
total of two hours, with change in position as tolerated. According to Dr. Mozeleski,
Claimant was able to lift no more than ten pounds, and then, only occasionally. He
stated Claimant would be able to tolerate occasional bending, reaching, squatting,
rotating, twisting, or kneeling, but no climbing. He believed Claimant was capable of
performing simple grasping, pushing, pulling, and fine manipulation, but only for short
7
periods. He did not believe she was capable of returning to work on a full-time basis.
(WCJ’s Finding of Fact No. 11.)
Dr. Mozeleski testified that he examined Claimant most recently on
November 12, 2014, and she presented with persistent neck and mid-back pain, pain
into the left shoulder and mid-back into the left upper arm, and pain into her fingers
and the inside part of her hand. As of that last appointment, Dr. Mozeleski testified
that Claimant continued taking Oxycontin and Oxycodone. Regarding the six positions
on the LMS/EPA, he stated that he reviewed each position and found that Claimant
was not capable of performing any of the positions, noting that all were full-time. He
concluded that these positions were not suitable because they included repetitive
movements even when sitting, which Claimant could not perform. (WCJ’s Finding of
Fact No. 11.)
Claimant also submitted the deposition testimony of Carmine Abraham,
who testified that she was certified to perform vocational assessments under the Act.
She stated that after Claimant’s case was assigned to her in April of 2015, she reviewed
materials from Mr. Smith, including the LMS/EPA, along with medical records and
reports. Ms. Abraham stated that she was aware of Claimant’s formal schooling, which
included a high school diploma and some business courses at Keystone Community
College, and that she believed the business courses Claimant had taken in 1978 and
1979 had no vocational relevance to Claimant’s employability in 2014. She found that
Claimant’s LPN position was considered a medium-skilled position, requiring skills
that were medical in nature. Ms. Abraham also found that Claimant did not have “a
whole lot of skills in regard to working with computers or in regard to supervisor skills
in regard to hiring or firing people or interviewing people.” (R.R. at 77a; WCJ’s
Finding of Fact No. 12.)
8
Ms. Abraham was able to personally meet with employees from four of
the five companies identified in the LMS/EPA in March and April of 2015, and upon
review, she rejected each of them. Ms. Abraham determined that, in her opinion, the
A. Rifkin position would not have been appropriate for Claimant because she would
have been unable to perform the job duties by typing with one finger at a time while
looking at the keyboard. Ms. Abraham explained that, because Claimant would have
to simultaneously attend to customers and provide them with the information they
needed, the call would take too long. Additionally, based on Claimant’s educational
and vocational history, Ms. Abraham believed Claimant would not have been qualified
for the position.
With regard to the Telerex position, Ms. Abraham explained that the
contact person listed on the LMS/EPA indicated that the position was in a call-center
type of environment where employees make and receive calls. Ms. Abraham noted
that the calls were very time sensitive and were monitored by supervisors.
Additionally, she testified, Telerex was looking for a candidate with computer skills in
programs such as Windows OS, Internet, Microsoft Word, and the like. Ms. Abraham
concluded that this position would have been outside Claimant’s vocational and
physical capabilities because it would not have allowed Claimant to physically change
positions.
Ms. Abraham testified that the Navient position was also in a call-center
environment, which was very similar to the Telerex position because the calls were
monitored by supervisors and very time sensitive. The skills necessary for this
position, Ms. Abraham testified, included navigating the internet and working with two
computer screens simultaneously while typing. Further, Ms. Abraham testified that the
position required the candidate to be literate in Word and Windows programs, and that
9
the position would not have allowed Claimant to continuously get up and move around.
Ms. Abraham concluded that Claimant lacked the necessary skills for this position.
(WCJ’s Finding of Fact No. 13.)
With regard to the Bank of America position, Ms. Abraham stated that, on
March 6, 2015, she went to the employer’s address but was only able to speak to a
security guard employed by a third party company, who indicated that there was no
human resource or recruiting department at that facility and, upon searching the
computer system, stated that there was no employee in the system with the name of the
recruiter listed in the LMS/EPA. Ms. Abraham then called Bank of America’s
corporate headquarters and was told that all hiring was done online, that the company
could not give out contact information for recruiters or human resource employees, and
that a recruiter only becomes available once an online application is submitted.
Although she was unable to obtain further information about the position, based on her
review of the LMS/EPA materials, Ms. Abraham testified that Claimant lacked the
qualifications for this position.
Finally, Ms. Abraham described the customer service position with
Hampton Inn as a guest service agent or front desk clerk, which required the ability to
use a computer and proficiency in typing. Ms. Abraham doubted whether Claimant
would have been able to stand or sit as needed during the shift because the employer
had indicated that it could not accommodate her, since being on one’s feet was an
essential function of that job. The other position with Hampton Inn was as a night
auditor, which Ms. Abraham described as having the same duties as the guest service
agent, with a significant difference being that the employee would have to complete
the paperwork over the night hours. Ms. Abraham explained that, because the positions
required the employee to stand for prolonged periods, Claimant would not have been
10
capable of performing either of the positions with Hampton Inn. (WCJ’s Finding of
Fact No. 13.)
The WCJ found Dr. Chiavacci and Mr. Smith more credible than Dr.
Mozeleski and Ms. Abraham. He noted that both physicians found Claimant capable
of returning to some type of work. The WCJ found it significant that Claimant
“candidly admitted” to applying to some positions that she found on her own via
newspaper ads, including a position at True Horse, which involved twelve-hour shifts,
a cleaning position at Sovereign Bank, a nursing position at Comfort Keepers, and a
position as a crossing guard. (WCJ’s Finding of Fact No. 15.)
Although the WCJ did not make a specific credibility finding regarding
Claimant’s testimony about her experience in applying for the six positions, he did
find: “Any testimony therefore from [C]laimant at [the] hearing that she did not believe
that she was capable of working is indeed not at all consistent, even with Dr. Mozeleski
finding [C]laimant capable of returning to some type of work.” (WCJ’s Finding of
Fact No. 15.) Further, the WCJ found that it was “disingenuous” for Claimant to
maintain that she had no transferable skills given her long career in the medical field,
“where [C]laimant had abundant responsibilities in attending to patients’ daily care for
many years,” which included “previous experience overseeing, training and instructing
other individuals.” (WCJ’s Finding of Fact No. 15.)
The WCJ specifically rejected the conclusion of Ms. Abraham that
Claimant lacked the skills necessary for any of the six jobs, finding that “[C]laimant
nevertheless credibly acknowledged during her work as a nurse performing a variety
of tasks in a high pressure environment including reading medical orders and
dispensing medications to patients.” (WCJ’s Finding of Fact No. 15). Accordingly,
the WCJ found that Claimant had a weekly earning capacity of $320.00 which resulted
11
in a weekly wage loss of $886.71, thereby entitling Claimant to partial disability
benefits of $591.14 per week, effective June 10, 2014, the date the six positions were
approved by Dr. Chiavacci. (WCJ’s Findings of Fact Nos. 14-15.)
In light of the above, the WCJ granted Employer’s modification petition.
The WCJ noted that Employer and/or Insurer remained responsible for payment of
Claimant’s reasonable and necessary medical expenses related to the work injury.
(WCJ’s Findings of Fact Nos. 15-16; Conclusions of Law Nos. 2-3.)
Claimant appealed the decision to the Board, arguing that the six jobs
could not be considered actually open and available if Claimant tried to apply and was
unsuccessful. She also questioned how she could have any earning capacity given that
she had tried to apply but could not obtain any of the positions. By opinion and order
dated July 1, 2016, the Board rejected Claimant’s arguments and affirmed the WCJ,
applying the decision of our Supreme Court in Phoenixville Hospital v. Workers’
Compensation Appeal Board (Shoap), 81 A.3d 830 (Pa. 2013).
Claimant filed a petition for review with this Court,5 raising the same
arguments and emphasizing that the WCJ’s “reliance on the assertion that the positions
were open and available at the time [] the [LMS/EPA] was conducted,” (Claimant’s
brief at 29), was misplaced since Claimant’s testimony established that the jobs “were
not actually open to [Claimant] when she applied,” (Claimant’s brief at 30), and thus
the WCJ’s finding was not in accordance with the standards set forth in Phoenixville
Hospital.
5
Our scope of review is limited to determining whether Findings of Fact are supported by
substantial evidence, whether an error of law has been committed, or whether constitutional rights
have been violated. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704; Meadow Lakes
Apartments v. Workers’ Compensation Appeal Board (Spencer), 894 A.2d 214, 216 n.3 (Pa. Cmwlth.
2006).
12
Discussion
In a workers’ compensation proceeding, the WCJ is the ultimate fact
finder and is the sole authority for determining the weight and credibility of evidence.
Lombardo v. Workers’ Compensation Appeal Board (Topps Company, Inc.), 698 A.2d
1378, 1381 (Pa. Cmwlth. 1997). “As such, the WCJ is free to accept or reject the
testimony of any witness, including medical witnesses, in whole or in part.” Id. The
WCJ’s findings will not be disturbed on appeal when they are supported by substantial,
competent evidence. Greenwich Collieries v. Workmen’s Compensation Appeal Board
(Buck), 664 A.2d 703, 706 (Pa. Cmwlth. 1995). “Substantial evidence is such relevant
evidence which a reasonable mind might accept as adequate to support a finding.”
Berardelli v. Workmen’s Compensation Appeal Board (Bureau of Personnel, State
Workmen’s Insurance Fund), 578 A.2d 1016, 1018 (Pa. Cmwlth. 1990).
Moreover, where both parties present evidence, it is irrelevant that the
record contains evidence which supports a finding contrary to that made by the WCJ;
rather, the pertinent inquiry is whether evidence exists that supports the WCJ’s
findings. Hoffmaster v. Workers’ Compensation Appeal Board (Senco Products, Inc.),
721 A.2d 1152, 1155 (Pa. Cmwlth. 1998).
Additionally, on appeal, all inferences drawn from the evidence shall be
taken in favor of the party prevailing before the WCJ. Krumins Roofing and Siding v.
Workmen’s Compensation Appeal Board (Libby), 575 A.2d 656, 659 (Pa. Cmwlth.
1990).
This is a case of first impression regarding the rights of claimants and
employers under section 306(b) of the Act after our Supreme Court’s decision in
Phoenixville Hospital. Claimant argues that if she applies for a position listed on the
LMS/EPA but does not get the job, the employer has not proven an earning capacity,
13
and so a modification petition must be denied. Conversely, Employer argues that a
claimant’s testimony that she applied unsuccessfully to the position is relevant but not
dispositive, that is, the WCJ shall admit evidence of the claimant’s unsuccessful efforts
but he or she is not automatically compelled to reject the earning capacity found in the
LMS/EPA.
Section 306(b)(1) allows wage loss benefits to be reduced to two-thirds of
the difference between a claimant’s average weekly wage and his or her “earning
power,” and the resulting partial disability rate shall be capped at 500 weeks.6 Section
306(b)(2) provides in pertinent part:
‘Earning power’ shall be determined by the work the
employee is capable of performing and shall be based upon
expert opinion evidence which includes job listings with
agencies of the department, private job placement agencies
and advertisements in the usual employment area. Disability
partial in character shall apply if the employee is able to
perform his previous work or can, considering the employee’s
residual productive skill, education, age and work experience,
engage in any other kind of substantial gainful employment
which exists in the usual employment area in which the
employee lives within this Commonwealth . . . . If the
employer has a specific job vacancy the employee is capable
of performing, the employer shall offer such job to the
employee.
77 P.S. §512(2).
In Phoenixville Hospital, our Supreme Court addressed the situation of a
claimant who was the subject of two LMS/EPAs, and who alleged that she had applied
to all the jobs set forth in each LMS/EPA, and was not offered any position from any
of the employers. The WCJ held that all the jobs were compatible with the claimant’s
working restrictions and relevant geographic area, and even though the WCJ rejected
6
77 P.S. §512(1).
14
the claimant’s medical and vocational witnesses, he denied employer’s modification
petition because the claimant “ha[d] established that in good-faith [sic], she followed
through on all the jobs referred to her by [e]mployer and that none of the referrals
resulted in an offer of employment.” Id. at 834. The Board affirmed, but was reversed
by this Court, which held that what was decisive under section 306(b) was not whether
the claimant applied for and received a job offer; rather, the question was whether the
jobs identified in the LMS/EPA were actually open and available at the time of the
LMS/EPA. Phoenixville Hospital v. Workers’ Compensation Appeal Board (Shoap),
2 A.3d 689, 697-98 (Pa. Cmwlth. 2010), reversed, 81 A.3d 830 (Pa. 2013).
On appeal from this Court, the Supreme Court reversed, holding that the
key to understanding section 306(b) was what the legislature meant by the phrase,
“substantial gainful employment that exists.” 81 A.3d at 842. Thus, although
“[s]ection 306(b) does not require that the claimant be offered a job,” an employer may
prevail on a modification petition under section 306(b) only if it proves “the existence
of meaningful employment opportunities, and not the simple identification of jobs
found in want ads or employment listings.” Id. at 842-43 (emphasis in original).
Accordingly, the Supreme Court reasoned, “evidence regarding the claimant’s actual
experience with the employers identified in the employer’s labor market surveys may
lend support for establishing contentions along these lines [that is, along the lines of
proof of substantial gainful employment].” Id. at 844. Further, “[t]he jobs identified
by the employer’s expert . . . must thus be those jobs that are actually open and
potentially available, not simply jobs that are already filled with existing employees.”
Id. at 843. The phrase “actually open and potentially available” is overcome by a
claimant if he or she has a “reasonable opportunity” to apply for the job on the
LMS/EPA, but the job is no longer available; “[i]f the job is already filled, it does not
15
‘exist,’ to afford [s]ection 306(b)’s language its commonly understood meaning.” Id.
at 846. Therefore, the Supreme Court not only reversed but also remanded, so that the
claimant could be afforded the opportunity “to submit evidence regarding her or his
experience in pursuing the jobs identified” in the LMS/EPA. Id. at 845. Such evidence,
concluded the Court, “is undeniably relevant” in a case involving section 306(b),
although “not dispositive of the earning power inquiry.” Id. at 846.
Generally, the employer or insurer has a threshold burden in cases under
section 306(b) to prove: (1) disability partial in character; and, (2) no specific job
vacancy with the date-of-injury employer.7 Once an employer or insurer proves these
prerequisites, the burden of proof in a modification petition based on section 306(b)
remains with the employer to establish a claimant’s “earning power,” that is, whether
“the employee is able to perform his [or her] previous work or can, considering the
employee’s residual productive skill, education, age and work experience, engage in
any other kind of substantial gainful employment which exists in the usual employment
area in which the employee lives within this Commonwealth.” 77 P.S. §512(2). Under
the Act, such proof must be established by a “vocational expert who is selected by the
department [of Labor and Industry] through regulation.”8 77 P.S. §512(2). That
vocational expert establishes a claimant’s earning power.9
If the employer meets the prerequisites and proffers the report and
testimony from the vocational expert, the WCJ must consider the qualifications of the
7
In section 123.301 of its regulations, 34 Pa. Code §123.301, the Department of Labor and
Industry outlines what the employer must prove to establish a job vacancy and/or job offer.
8
The protocols for vocational experts have been established by the Department of Labor and
Industry in the regulations set forth at 34 Pa. Code §§123.201-123.205.
9
The requirements for “evidence of earning power” have been delineated by regulations set
forth at 34 Pa. Code §123.302, which restates section 306(b)(2) of the Act in substantial form.
16
vocational expert and evaluate the contents of the LMS/EPA as well as the testimony
of the vocational expert. Altoona Wholesaler Distributors v. Workers’ Compensation
Appeal Board (Bell), 841 A.2d 651, 653-54 (Pa. Cmwlth. 2004). The WCJ may accept
in whole or in part the evidence of the vocational expert. Marx v. Workers’
Compensation Appeal Board (United Parcel Service), 990 A.2d 107, 110 (Pa. Cmwlth.
2010) (affirming a WCJ’s decision which determined that some of the job referrals in
the LMS/EPA were appropriate to demonstrate earning power while others were not).
In the present case, the WCJ chose to find the testimony of Employer’s
vocational expert, Mr. Smith, more credible than the testimony of Claimant’s
vocational expert, Ms. Abraham.
Now, under the direction of our Supreme Court in Phoenixville Hospital,
if the WCJ accepts the evidence of the vocational expert, the WCJ’s inquiry is not over
if the claimant “submits evidence regarding her or his experience in pursuing the jobs
identified by the employer’s vocational expert witness.” 81 A.3d at 845. Evidence of
unsuccessful employment applications “is undeniably relevant to rebut the employer’s
argument that the positions identified were proof of the potentiality of a claimant’s
substantial gainful employment.” Id. at 846. In other words, a claimant may offer
evidence that the position was “filled by the time the claimant had had a reasonable
opportunity to apply for it. If the job is already filled, it does not ‘exist,’ to afford
[s]ection 306(b)’s language its commonly understood meaning.” Id.
In the present case, Employer met the prerequisites of section 306(b) and
the accompanying regulations, and also offered vocational evidence in the form of an
LMS/EPA and the testimony of Mr. Smith. The WCJ then allowed testimony from
Claimant to address the vocational expert’s evidence of job availability and earning
power. As the Board noted, “[t]he claimant may attack a labor market survey by
17
showing that the survey was based on faulty, false, or misleading information, and
evidence regarding the claimant’s experience in applying for the jobs may support such
a contention.” (Board op. at 7.) However, under Phoenixville Hospital, such evidence
from Claimant was “relevant,” but “not dispositive.” 81 A.3d at 846.
As the WCJ noted here, Claimant’s work injury “date[d] back to 2010.”
(WCJ’s Finding of Fact No. 15.) The WCJ assessed the credibility of Claimant and
her vocational expert, and rejected their testimony as to earning power and transferable
skills, finding Claimant’s testimony contradictory and disingenuous, particularly since
Claimant admitted to applying for jobs more difficult than those listed on the
LMS/EPA, which she contended she could not perform. (WCJ’s Finding of Fact No.
15.) Despite the surgery and treatment, the WCJ emphasized that both Dr. Mozeleski
and Dr. Chiavacci “found [C]laimant capable of returning to some type of work.”
(WCJ’s Finding of Fact No. 15.) The WCJ assessed the credibility of the medical
experts and found Dr. Chiavacci, who approved the six jobs on the LMS/EPA, more
credible. He further found Mr. Smith credible and so found that the six positions on
the LMS/EPA were vocationally appropriate for Claimant. Moreover, the WCJ found
that, to the extent that Ms. Abraham concluded otherwise, testifying that Claimant was
not a good candidate for any of the positions, he rejected her testimony as not credible.
(WCJ’s Finding of Fact No. 15.)
Consequently, the WCJ found that Claimant had an earning power of
$320.00 weekly, on the low end of the earning capacity identified by Mr. Smith.
(WCJ’s Finding of Fact No. 15, Conclusion of Law No. 2.) We see no error on the part
of the WCJ in reaching this finding.
However, Phoenixville Hospital states that,
The statutory concept of “substantial gainful employment
which exists” would be meaningless with respect to a
18
claimant’s actual medical and vocational circumstances
unless the jobs identified by the employer’s expert witness,
which are used as the employer’s proof of earning power
under Section 306(b), remain open until such time as the
claimant is afforded a reasonable opportunity to apply for
them.
Phoenixville Hospital, 81 A.3d at 845.
Here, the WCJ accepted Employer’s evidence regarding the positions
identified in the LMS/EPA. As noted above, Claimant testified that she was only able
to contact three of the employers, and, of those three, she was only able to apply to two,
since the positions at Hampton Inn had been filled when she applied, which was 25
days, and in some cases, 27 days, after the receiving the LMS/EPA.10 Claimant’s
expert, Ms. Abraham, however, was able to get in touch and meet with two of the listed
contacts that Claimant testified she could not reach nearly a year after Claimant
attempted to contact them. (R.R. at 178a-79a, 188a-89a.) We note that this is precisely
the sort of testimony that Phoenixville Hospital mandated claimants be permitted to
present. The Court stated:
Evidence that the claimant pursued but failed to obtain
gainful employment with the employers identified by the
expert witness is undeniably relevant to rebut the employer's
argument that the positions identified were proof of the
potentiality of a claimant's substantial gainful employment.
However, such evidence is, of course, not dispositive of the
earning power inquiry. Moreover, a claimant must be
afforded the opportunity to submit evidence that she or he
did not obtain employment because the position identified by
the employer's expert witness was already filled by the time
the claimant had had a reasonable opportunity to apply for it.
If the job is already filled, it does not “exist,” to afford
10
The LMS/EPA is dated May 8, 2014. (R.R. at 304a.) Claimant’s notes indicated that she
called five of the employers on May 28, 2014, and one on June 2, 2014, and that she submitted
applications to two of them on June 2, 2014, and June 4, 2014. (R.R. at 188a-91a.)
19
Section 306(b)'s language its commonly understood
meaning.
Id. at 846.
Although the Phoenixville Hospital Court did not further develop the
concept of “a reasonable opportunity to apply,” the Court made clear that “[t]he WCJ
is charged with finding the facts necessary to support her or his decision that disposes
of the motion to be decided. Whether a claimant had a ‘reasonable opportunity’ to apply
and did, in fact, apply for an identified position (and whether the job was already filled
by the relevant time) are factual matters that the WCJ is fully qualified to determine.”
Id.
Here, the Claimant presented evidence attempting to show that the
LMS/EPA was based upon incorrect information in that the jobs were not open and
available because she attempted to apply to all of the positions but was either turned
down, told the position was unavailable, or unable to reach the contact person. The
WCJ evaluated Claimant’s testimony but did not find it was sufficient to demonstrate
that Employer had not met its burden. Thus, while Employer maintains an ongoing
burden to show that the jobs remained open and available, under Phoenixville Hospital,
a claimant can present evidence to the contrary. As Employer stated in its brief, “The
fact that [C]laimant did not secure a position with one of the potential employers does
not negate the findings of the WCJ, which found the positions were within her
capabilities and were open and available to her, specifically finding that [C]laimant
was not credible about her incapacity to work at each of these jobs.” (Employer’s brief
at 34.)
Hence, the WCJ found that the Employer met its burden and specifically
stated,
20
After having made a careful review of the evidence of
record[,] this Judge has accepted as more credible and
convincing the findings and opinions of both Dr. Chiavacci
as well as Mr. Smith and . . . to the extent that either Dr.
Mozeleski or Ms. Abraham finds the [C]laimant either not
capable of physically performing the positions nor the
positions being vocationally suitable for the [C]laimant, their
testimony is less credible and less persuasive.
(WCJ’s Finding of Fact No. 14.) In conclusion, the WCJ stated, “Clearly therefore
there being positions relied upon by the [E]mployer herein that were physically and
vocationally appropriate for [C]laimant and open and available to her[,] the
[E]mployer’s [m]odification [p]etition should be granted . . . .” (WCJ’s Finding of Fact
No. 15) (emphasis added).
Accordingly, accepting the WCJ’s credibility determinations as outlined
above, we conclude that there was substantial evidence to support the WCJ’s finding
that Employer established “meaningful employment opportunities” under section
306(b) of the Act. Id.
Conclusion
We reject Claimant’s argument that the mere presentation of evidence of
unsuccessful application to jobs listed in a LMS/EPA mandated a finding that the
positions were not open and available and that she lacked any earning capacity. Rather,
as our Supreme Court stated in Phoenixville Hospital, such evidence from Claimant
was “relevant” but not “dispositive” with regard to the earning power inquiry. 81 A.3d
at 846.
Furthermore, although the Claimant’s testimony on the application
process is the sort of evidence that Phoenixville Hospital now requires a claimant be
21
permitted to present, in this case, the WCJ found that it failed to show that the jobs
were not vocationally suitable or actually open and available.
Accordingly, the Board did not err in affirming the decision and order of
the WCJ.
________________________________
PATRICIA A. McCULLOUGH, Judge
22
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Laurie Valenta, :
Petitioner :
: No. 1302 C.D. 2016
v. :
:
Workers’ Compensation Appeal :
Board (Abington Manor Nursing :
Home and Rehab and Liberty :
Insurance Company), :
Respondents :
ORDER
AND NOW, this 7th day of December, 2017, the July 1, 2016 order of
the Workers’ Compensation Appeal Board is hereby affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge