I. Stein v. WCAB (SD of Philadelphia)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Irwin Stein, :
Petitioner :
:
v. : No. 782 C.D. 2016
: Submitted: November 4, 2016
Workers’ Compensation Appeal :
Board (School District of Philadelphia), :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: February 13, 2017
Irwin Stein (Claimant) petitions for review of an adjudication of the
Workers’ Compensation Appeal Board (Board) that affirmed the decision of the
Workers’ Compensation Judge (WCJ) to suspend Claimant’s disability
compensation. The WCJ so held because she found that Claimant had voluntarily
left the labor market by retiring. For the following reasons, we affirm.
Claimant worked for the School District of Philadelphia (Employer)
as a physical education teacher and swim instructor. On September 25, 2003, he
sustained a work injury to his neck, left shoulder and arm.1 WCJ Decision
(7/21/2015) at 3, Finding of Fact No.1; Reproduced Record at 116 (R.R. __).
1
The Notice of Temporary Compensation Payable, which Employer issued following Claimant’s
injury, recognized Claimant’s work injuries as “cervical strain/sprain[,] left wrist sprain[,] [and]
facial contusion.” Reproduced Record at 1 (R.R. __). On June 24, 2008, Claimant filed a review
petition seeking to expand the description of injuries. The parties agreed to amend the
description to include left upper extremity cervical radiculopathy and cervical chronic pain
syndrome. R.R. 82-83.
Employer issued a Notice of Temporary Compensation Payable, paying a weekly
compensation rate of $675. Claimant did not collect those benefits. Instead,
Claimant continued to receive his regular salary from Employer for approximately
one year pursuant to a wage continuation provision in the collective bargaining
agreement. He then applied for and received a disability pension and Social
Security retirement. In 2006, Claimant filed a petition to reinstate his workers’
compensation benefits. The matter was assigned to a WCJ, who ordered Employer
to pay Claimant disability compensation retroactive to September 25, 2003, plus
interest. WCJ Decision (6/13/2007) at 1; R.R. 9. Claimant has not returned to
work since the injury.
On August 23, 2007, Dr. Anthony Puglisi, a board-certified
orthopedic surgeon, conducted an independent medical examination of Claimant.
He opined that Claimant was capable of performing light duty work. Employer
then filed a petition to suspend Claimant’s compensation benefits as of August 23,
2007, the date when Employer alleged that Claimant had voluntarily retired and
removed himself from the labor market. The matter was assigned to WCJ Thomas
Devlin, who held an evidentiary hearing. Both Employer and Claimant appeared
and presented evidence.
Employer submitted the medical deposition of Dr. Puglisi, who
opined that Claimant suffered left upper extremity radiculopathy and decreased
sensation in the C-6 distribution, both of which were causally related to his work
injury. Dr. Puglisi testified that Claimant was capable of working in a light-duty
position with a 15 to 20-pound lifting restriction but with no restriction on his
ability to sit, stand, walk, or drive.
2
In response, Claimant submitted the medical deposition of Dr. Sofia
Lam, a board certified anesthesiologist with a subspecialty in pain management,
who has been treating Claimant for his injury since 2007. Dr. Lam diagnosed
Claimant with cervical radicular symptomology with a cervical facet joint
pathology and brachial plexopathy related to his work injury. She did not expect
Claimant to improve and opined that he was unable to return to any type of work.
Claimant also testified before WCJ Devlin. He explained that he
applied for the disability pension because Employer told him that he should either
return to work or retire. Notes of Testimony, 2/13/2009, at 20 (N.T.__); R.R. 48.
Given his work injuries, Claimant had no expectation of being able to return to
work; however, he did not want to be left with no income. Claimant testified that
he did not intend to retire when he applied for the disability pension. He further
testified that Employer did not inform him that he was eligible for workers’
compensation benefits. Regarding his injury, Claimant testified that over the
years, the pain in his neck, left shoulder, and left arm has become worse. He
suffers intense headaches; does not sleep well; and is always in pain. He testified
that his treating doctors have not released him to return to work and he cannot
work because his medications “whack [him] out.” N.T. 30; R.R. 58. Claimant
acknowledged that he declined inquiries from potential employers in a camping
business, where he had worked prior to his work injury.2 He testified that he has
reviewed job posts in newspapers but concluded he was physically unable to
2
Claimant testified that he left teaching in 1981 and became a full-time camp director. He
travelled and lived at the camps; hired staff members; and maintained the camps. Claimant
testified that he represented four camps, one of which was the “Sixers” camp, presumably
referring to the Philadelphia 76ers. Claimant returned to teaching in 1992. N.T. 8-10; R.R. 36-
38.
3
perform any of them. He further testified that he has not sought employment since
his work injury in 2003 because he “[had not] felt well enough.” N.T. 36; R.R.
64..
WCJ Devlin granted Employer’s suspension petition, finding that
Claimant intended to retire from his employment. WCJ Decision (6/22/2009) at 4-
5; R.R. 76-77. Claimant appealed to the Board, which remanded the decision for
additional findings. On remand, the matter was assigned to WCJ Francine
Lincicome, who again granted Employer’s suspension petition after finding that
Claimant had voluntarily withdrawn from the workforce. Claimant appealed
again. Relying on our Supreme Court’s decision in City of Pittsburgh v. Workers’
Compensation Appeal Board (Robinson), 67 A.3d 1194 (Pa. 2013), the Board
concluded that the WCJ erred by placing the burden on Claimant to prove that he
was seeking employment or had been forced to retire from the workforce. The
Board noted that Claimant did not testify that he voluntarily withdrew from the
workforce. His receipt of a disability pension, by itself, did not establish that his
retirement was voluntary. The Board remanded the matter, holding that Employer
had to establish, by a totality of the circumstances, that Claimant voluntarily
withdrew from the workforce.
On July 21, 2015, WCJ Lincicome, on second remand, again granted
Employer’s suspension petition. In doing so, she credited Dr. Puglisi’s testimony
that Claimant was capable of working in a light-duty position. She found
Claimant’s testimony regarding his inability to return to the workforce “neither
credible nor persuasive.” WCJ Decision (7/21/2015) at 4, Finding of Fact No. 6;
R.R. 117. The WCJ concluded that Employer met its burden of proving that
Claimant had voluntarily left the workforce because Claimant testified that he
4
received a disability pension and Social Security retirement benefits. In addition,
he admitted that he had declined inquiries from potential employers and had not
been seeking employment of any type. Once Employer met its initial burden of
proof, the burden then shifted to Claimant to prove either that he had been forced
from the entire workforce by his injury or that he was actively seeking
employment. The WCJ concluded that Claimant failed to meet this burden, citing
Robinson, 67 A.3d 1194. The WCJ suspended Claimant’s workers’ compensation
benefits effective August 23, 2007.
Claimant appealed, arguing that WCJ Lincicome erred in granting the
suspension petition. Claimant contended that the WCJ again misapplied the
burden of proof; did not render a reasoned decision; and failed to find Employer in
violation of the notice requirements under Section 306(b) of the Workers’
Compensation Act (Act).3 The Board affirmed, observing that the evidence that
WCJ Lincicome cited in her decision, including Claimant’s receipt of the disability
pension and his testimony that he had not sought employment since his work
injury, are examples of objective evidence of retirement under Robinson.
Accordingly, the Board held that the WCJ did not err in concluding that, under the
totality of the circumstances, Employer met its burden of proving that Claimant
had retired. Board Adjudication (4/18/2016) at 11; R.R. 135. The Board agreed
with the WCJ that Claimant failed to prove that he had been forced from the entire
3
Act of June 2, 1915, P.L. 736, as amended, added by Section 4 of the Act of June 24, 1996,
P.L. 350, 77 P.S. §512(3). Section 306(b)(3) of the Act requires that an employer seeking to
modify or suspend a claimant’s benefits must supply the claimant with a notice disclosing to the
claimant his rights and obligations following the issuance of a medical release. 77 P.S. §512(3).
The form prescribed by Section 306(b)(3) is called a “Notice of Ability to Return to Work.”
Allegis Group (Onsite) v. Workers’ Compensation Appeal Board (Henry), 882 A.2d 1, 4 (Pa.
Cmwlth. 2005).
5
workforce by his injury or that he was actually seeking employment. The Board
rejected Claimant’s argument that the WCJ did not issue a reasoned opinion,
explaining that she was not required to explain “both sides of a credibility
determination.” Id. at 10; R.R. 134. It also rejected Claimant’s argument that
Employer did not comply with the notice requirements under Section 306(b) of the
Act for the stated reason that the argument was waived; the issue was not presented
to the WCJ. Claimant now petitions this Court for review.4
On appeal, Claimant argues that the Board erred in determining that
he had an obligation to seek employment because Employer failed to supply him
with a Notice of Ability to Return to Work, as required by Section 306(b)(3) of the
Act, 77 P.S. §512(3). He also argues that the WCJ failed to issue a reasoned
decision. Finally, Claimant argues that the Board erred in concluding that
Employer met its burden to establish that Claimant had voluntarily removed
himself from the workforce.
In his first issue, Claimant argues that the Board erred because
Employer did not supply him with a Notice of Ability to Return to Work as
required by Section 306(b) of the Act. He explains that Employer sought to
introduce the notice into evidence at the second remand before WCJ Lincicome,
and Claimant objected to its admission. The WCJ directed the parties to brief the
issue and indicated a ruling on the objection would be made; however, her
4
This Court’s review of an order of the Board is to determine whether the necessary findings of
fact are supported by substantial evidence, whether Board procedures were violated, whether
constitutional rights were violated, or whether an error of law was committed. Cytemp Specialty
Steel v. Workers’ Compensation Appeal Board (Crisman), 39 A.3d 1028, 1033 n.6 (Pa. Cmwlth.
2012).
6
decision, which has now been appealed, did not contain such a ruling. Claimant’s
Brief at 8.
Section 306(b)(3) requires the employer to notify a claimant when it
has medical evidence that the claimant is able to work in some capacity. It states:
(3) If the insurer receives medical evidence that the claimant is
able to return to work in any capacity, then the insurer must
provide prompt written notice, on a form prescribed by the
department, to the claimant, which states all of the following:
(i) The nature of employe’s physical condition or
change of condition.
(ii) That the employe has an obligation to look for
available employment.
(iii) That proof of available employment
opportunities may jeopardize the employe’s right
to receipt of ongoing benefits.
(iv) That the employe has the right to consult with
an attorney in order to obtain evidence to challenge
the insurer’s contentions.
77 P.S. §512(3). This Court has held that compliance with Section 306(b)(3) of
the Act is a threshold burden an employer must satisfy to obtain a modification or
suspension of a claimant’s benefits. Allegis Group (Onsite) v. Workers’
Compensation Appeal Board (Henry), 882 A.2d 1, 4 (Pa. Cmwlth. 2005).
Regardless of whether WCJ Lincicome admitted the Notice of Ability
to Return to Work into evidence, Claimant did not assert, at the earliest available
opportunity, that Employer did not give him the notice. As this Court observed in
Dobransky v. Workers’ Compensation Appeal Board (Continental Baking
Company), 701 A.2d 597, 600 (Pa. Cmwlth. 1997), the doctrine of waiver is
applicable in workers’ compensation proceedings. A party may not present on
7
appeal issues that were not first presented to the WCJ. Id. at 600. Therefore, we
agree with the Board that Claimant waived this issue by not first presenting it to
either WCJ Devlin or WCJ Lincicome.5
Claimant argues, next, that WCJ Lincicome did not issue a reasoned
decision. Claimant explains that he testified about how his work injuries had
impacted him over the years and, thus, precluded him from returning to his pre-
injury work. The WCJ’s findings that Claimant declined to entertain inquiries
from potential employers and chose to remove himself from the workforce were
not supported by evidence and conflicted with this testimony. Claimant’s Brief at
38; 41. Claimant argues that the WCJ never observed him; therefore, she should
have explained in her decision why she found his testimony not credible.
Claimant’s Brief at 42. We disagree.
Section 422 of the Act provides that a reasoned decision is one that
contains “findings of fact and conclusions of law based upon the evidence as a
whole which clearly and concisely states and explains the rationale for the [WCJ’s]
decisions....” 77 P.S. §834. The WCJ must specify the evidence upon which she
relied in making her decision. Such statements and explanations allow all parties
to determine “why and how a particular result was reached.” Id.
It is well established that a WCJ, as a fact finder, has “exclusive
province over questions of credibility and evidentiary weight, and the [WCJ]’s
findings will not be disturbed when they are supported by substantial, competent
5
It is unclear whether Employer gave Claimant a Notice of Ability to Return to Work. WCJ
Lincicome did not make a factual finding regarding the issuance or receipt of such a notice. Nor
did she make a ruling on Claimant’s challenge to the admissibility of the document in the
decision that has now been appealed. There are no hearing transcripts from which we may
determine whether the notice was admitted into evidence.
8
evidence.” Greenwich Collieries v. Workers’ Compensation Appeal Board (Buck),
664 A.2d 703, 706 (Pa. Cmwlth. 1995). The WCJ “is free to accept or reject the
testimony of any witness, including a medical witness, in whole or in part.” Id.
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).
Here, WCJ Lincicome, on first remand, found Dr. Puglisi’s testimony
more credible than that of Dr. Lam, based on Dr. Puglisi’s extensive records
review, thorough physical examination of Claimant, and years of experience as an
orthopedic surgeon treating injuries such as Claimant’s. WCJ Decision
(6/21/2011) at 4, Finding of Fact No. 4; R.R. 97. The WCJ adopted this finding on
second remand and, accordingly, accepted Dr. Puglisi’s testimony that Claimant
was capable of working in a light-duty position. Consistent with the WCJ’s
decision to credit Dr. Puglisi’s testimony, she did not accept Claimant’s contrary
opinion that he could not return to any type of work. Based on Claimant’s
admission that he had declined inquiries from potential employers and had not
sought employment since his work injury, as well as his testimony that he received
a pension and Social Security retirement benefits, the WCJ concluded that
Claimant had retired, voluntarily removing himself from the workforce. Although
Claimant testified that he did not intend to retire and he believed that he was
unable to perform any type of work, the WCJ did not find that testimony credible.
WCJ Decision (7/21/2015) at 4, Finding of Fact No. 6; R.R. 117. The pertinent
inquiry is whether evidence exists that supports the WCJ’s findings. Hoffmaster,
9
721 A.2d at 1155. Here, the WCJ explained the rationale for her decision,
including her credibility determination. She specified the evidence upon which she
had relied in making her determination. Accordingly, we conclude that the WCJ
rendered a reasoned decision.
In his final issue, Claimant argues that the WCJ erred in concluding
that Employer met its burden of proving that he had voluntarily removed himself
from the workforce. His receipt of disability pension and Social Security
retirement benefits did not establish a voluntary retirement. Claimant argues that
his own testimony showed that he had no intent to retire, and that the WCJ did not
consider the evidence under the totality of the circumstances analysis.
We begin with a review of the relevant law. Generally, an employer
has a responsibility to “try to reintroduce into the workforce those employees
injured while pursuing the employer’s interests.” Landmark Constructors, Inc. v.
Workers’ Compensation Appeal Board (Costello), 747 A.2d 850, 854 (Pa. 2000).
An employer seeking to suspend disability compensation must establish that (1) the
claimant’s medical condition has changed, and (2) either the claimant was referred
to open positions and failed to follow through in good faith, or work is generally
available to the claimant. City of Pittsburgh v. Workers’ Compensation Appeal
Board (Robinson), 4 A.3d 1130, 1134 (Pa. Cmwlth. 2010), aff’d, 67 A.3d 1194
(Pa. 2013).
However, an employer need not prove that suitable work is available
if the claimant has voluntarily removed himself from the labor market by retiring.
An employer that can demonstrate a claimant has voluntarily retired is entitled to a
suspension of benefits. In determining whether a claimant has voluntarily retired,
10
the WCJ must consider the totality of the circumstances. Our Supreme Court has
explained:
Where the employer challenges the entitlement to continuing
compensation on grounds that the claimant has removed
himself or herself from the general workforce by retiring, the
employer has the burden of proving that the claimant has
voluntarily left the workforce. There is no presumption of
retirement arising from the fact that a claimant seeks or accepts
a pension, much less a disability pension; rather, the worker’s
acceptance of a pension entitles the employer only to a
permissive inference that the claimant has retired. Such an
inference, if drawn, is not on its own sufficient evidence to
establish that the worker has retired—the inference must be
considered in the context of the totality of the circumstances.
The factfinder must also evaluate all of the other relevant and
credible evidence before concluding that the employer has
carried its burden of proof.
If the employer produces sufficient evidence to support a
finding that the claimant has voluntarily left the workforce, then
the burden shifts to the claimant to show that there in fact has
been a compensable loss of earning power. Conversely, if the
employer fails to present sufficient evidence to show that the
claimant has retired, then the employer must proceed as in any
other case involving a proposed modification or suspension of
benefits.
City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson), 67 A.3d
1194, 1209-10 (Pa. 2013). In sum, the employer bears the burden to establish that
a claimant has voluntarily retired. The Robinson court further noted that the
employer need not prove the claimant’s subjective state of mind; rather, objective
facts, such as “the claimant’s receipt of a pension, the claimant’s own statements
relating to voluntary withdrawal from the workforce, and the claimant’s efforts or
non-efforts to seek employment,” may establish his voluntary retirement. Id. at
1210.
11
We conclude that the WCJ did not err in concluding that Employer
satisfied its burden to prove that Claimant had voluntarily removed himself from
the labor market. As explained in Robinson, Employer satisfied its burden by
proving objective facts, such as “the claimant’s receipt of a pension, the claimant’s
own statements relating to voluntary withdrawal from the workforce, and the
claimant’s efforts or non-efforts to seek employment.” Id. Although acceptance of
a pension, on its own, is insufficient to establish a voluntary retirement, the WCJ
considered that fact in the context of Claimant’s testimony that he had declined
inquiries from potential employers and stopped seeking employment since his
work injury in 2003. Despite Claimant’s testimony that he did not intend to retire,
which in any event was discredited, Employer need not prove Claimant’s
subjective state of mind to establish a voluntary retirement. Taken as a whole, the
WCJ did not err in finding that Claimant had retired and voluntarily chosen to
remove himself from the workforce.
For all of the foregoing reasons, we affirm the Board’s order.
_____________________________________
MARY HANNAH LEAVITT, President Judge
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Irwin Stein, :
Petitioner :
:
v. : No. 782 C.D. 2016
: Submitted: November 4, 2016
Workers’ Compensation Appeal :
Board (School District of Philadelphia), :
Respondent :
ORDER
AND NOW, this 13th day of February, 2017, the order of the
Workers’ Compensation Appeal Board dated April 18, 2016, in the above-
captioned matter is hereby AFFIRMED.
______________________________________
MARY HANNAH LEAVITT, President Judge