Overbrook Golf Club v. M. Scott (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Overbrook Golf Club, :
Petitioner :
:
v. : No. 940 C.D. 2021
: Submitted: January 28, 2022
Mark Scott (Workers’ :
Compensation Appeal Board), :
Respondent :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE LEAVITT FILED: June 17, 2022
Overbrook Golf Course (Employer) petitions for review of an
adjudication of the Workers’ Compensation Appeal Board (Board) that affirmed the
decision of a workers’ compensation judge (WCJ). In that decision of November 6,
2020, the WCJ granted Employer’s petition to modify the compensation benefits of
Mark Scott (Claimant); denied Employer’s petition to suspend compensation
benefits; and reinstated Claimant’s temporary total disability benefits as of
November 19, 2017. Upon review, we affirm the Board, albeit on different grounds.
Claimant worked 7 years, 50 to 55 hours per week, as a pot washer in
Employer’s kitchen. On May 6, 2017, he was injured when he tripped over a mat
and fell backwards onto a concrete floor. Later that month, he was released to work
light duty and returned to work washing dishes, instead of pots. Subsequently, when
Claimant’s low back and leg symptoms increased, he reduced his hours to three days
per week.
In an October 12, 2018, decision, the WCJ granted compensation
benefits to Claimant, concluding that he had been injured in the course of his
employment with Employer. The WCJ awarded Claimant temporary total disability
(TTD) benefits and partial disability benefits beginning May 7, 2017, during the
times that Claimant worked. The WCJ defined Claimant’s work injury as a “work-
related aggravation of degenerative disc disease at L5-S1 resulting in left-side
lumbar radiculopathy in addition to a low back strain.” WCJ Decision, 11/6/2020,
at 3, Finding of Fact (F.F. __) No. 8. The WCJ denied Employer’s modification and
suspension petitions because Employer had not established that it made “a specific
job offer” to Claimant. Id.
Employer appealed to the Board. On January 29, 2020, the Board
issued an adjudication remanding the matter to the WCJ for “more specific
consideration of the conflicting evidence pertaining to Employer’s request for
modification and suspension.” WCJ Decision, 11/6/2020, at 4, F.F. No. 10
(summarizing Board remand order). Specifically, Claimant’s expert, Michael
McCoy, M.D., testified that Claimant could work three days per week for eight hours
per day, but the WCJ did not state whether it credited this opinion. Noting that
Claimant had returned to work two or three days per week, the Board observed that
Employer had, in fact, tried to accommodate Claimant. The Board concluded that
the conflicting evidence on Claimant’s ability to work in July of 2017, when
Employer tendered its job offer, “merits a remand for specific consideration and
more detailed findings of fact.” Board Adjudication, 1/29/2020, at 10; Reproduced
Record at 57a (R.R. __). Accordingly, the Board remanded to the WCJ for further
consideration of the evidence, “specifically for consideration of the testimony of Dr.
McCoy[.]” Id. at 11; R.R. 58a.
2
Upon remand, the parties informed the WCJ that no additional evidence
would be submitted. Accordingly, the WCJ made his remand decision on the basis
of the existing record.
The WCJ found that Claimant missed a week or two of work after his
injury; returned to modified duty with a lifting restriction of 20 pounds; and
thereafter was in and out of work. Employer accommodated Claimant’s work
restrictions, allowing Claimant to work as a dishwasher two or three days a week
with fewer hours. Claimant would leave early when his pain worsened. Claimant
did not receive partial disability benefits for the time he missed work. Claimant
stopped working entirely sometime between July and September 2017.1 Claimant
acknowledged that he did not respond to a July 25, 2017, offer of employment
because he did not believe he could do the job. Employer terminated Claimant’s
employment on November 29, 2017, for the stated reason that Claimant never
responded to its job offer.
On cross-examination, Claimant agreed that he stopped working in July
2017, at a time when a modified duty job within his restrictions was available to him
for 40 hours per week. Claimant testified that he did not respond to Employer’s July
2017 offer of a position as a kitchen utility worker because he had been taken out of
work entirely by Dr. Francis Burke, his treating physician from WorkNet.
In his October 23, 2017, deposition, Dr. McCoy opined that Claimant
could perform modified duty with a 20-pound lifting restriction from July 17, 2017,
and thereafter. On cross-examination, Dr. McCoy testified that he was not certain
that Claimant was able to work a 40-hour week but would allow Claimant to work
modified duty for 8 hours per day, 3 days per week.
1
On cross-examination, Claimant agreed that he had no reason to dispute that July 20, 2017, was
his last day at work with Employer.
3
The WCJ modified Claimant’s benefits to temporary partial disability
benefits based on 24 hours of available light duty work from July 25, 2017, through
November 18, 2017. The WCJ found that the modified duty job ceased to be
available on and after November 19, 2017, when Employer terminated Claimant’s
employment. Accordingly, the WCJ reinstated Claimant’s TTD benefits as of that
date. The WCJ determined that Employer did not establish that Claimant’s disability
benefits should have been suspended during the period of July 25, 2017, through
November 18, 2017, reasoning that Dr. McCoy did not approve Claimant to return
to work for 40 hours per week. Thereafter, Norman Stempler, D.O., credibly
testified that as of November 13, 2017, Claimant was not physically able to perform
any type of work, including the position offered by Employer on July 25, 2017. In
any case, that position ceased to be available when Employer terminated Claimant’s
employment on November 19, 2017. Based on these findings, the WCJ modified
Claimant’s benefits to temporary partial disability benefits from July 25, 2017,
through November 18, 2017, and reinstated Claimant’s TTD benefits as of
November 19, 2017. Employer appealed to the Board.
In its review of the WCJ’s remand decision, the Board addressed
Employer’s argument that “the WCJ failed to make a finding regarding Claimant’s
lack of good faith follow up on the job offer.” Board Adjudication, 8/18/2021, at
10; R.R. 91a. The Board focused on the WCJ’s finding that as of November 13,
2017, Claimant could not work at any job. The Board explained as follows:
Once Claimant established an inability to return to his pre-injury
position, the onus was on [Employer] to establishing [sic]
entitlement to a modification or suspension. On remand, the
WCJ specifically found that [Employer] was, in fact, entitled to
a modification of Claimant’s benefits based on the fact that
modified duty within his restrictions was available as of July 25,
4
2017[,] and he failed to follow up on [Employer’s] job offer. We
disagree that anything more was required.
Id. at 11; R.R. 92a (citation omitted). The Board added:
The WCJ essentially found that Claimant failed to follow up in
good faith on suitable work offered as of July 2017. The WCJ
did not find that the reasons for Claimant’s discharge from
employment in November 2017 showed a lack of good faith.
According to [Employer’s witness], the job was available to
Claimant from the time of the job offer to the time of Claimant’s
termination. Given all of this, we see no error in the
determination that the job offer was not available after that date.
Id. at 10-11; R.R. 91a-92a.
Noting the WCJ accepted Dr. Stempler’s testimony that Claimant was
not capable of work as of November 13, 2017, the Board explained that “the WCJ
could have ordered a reinstatement as of November 13 but chose to order it as of
November 19, 2017,” the effective date of Claimant’s termination of employment.
Because the WCJ’s remand decision contained all necessary findings and allowed
for adequate review, the Board rejected Employer’s contention that the WCJ’s
decision was not reasoned. Employer then petitioned for this Court’s review.2
On appeal, Employer raises two issues. First, it argues that the WCJ
and the Board misapplied the burden on the petitions and, thus, erred in determining
that Claimant’s TTD benefits should be reinstated effective November 19, 2017.
Second, it argues that the WCJ’s finding that Dr. Stempler was credible was
inconsistent with the WCJ’s reinstatement of Claimant’s TTD benefits on a date
other than the date of Dr. Stempler’s examination.
2
Our standard of review is limited to determining whether the necessary findings of fact were
supported by substantial evidence, whether an error of law was committed, or whether
constitutional rights were violated. Phoenixville Hospital v. Workers’ Compensation Appeal
Board (Shoap), 81 A.3d 830, 838 (Pa. 2013).
5
We begin our analysis with a review of the applicable legal principles.
A suspension or modification is appropriate where the work injury no longer impairs
the claimant’s earning power. Ingrassia v. Workers’ Compensation Appeal Board
(Universal Health Services, Inc.), 126 A.3d 394, 401 (Pa. Cmwlth. 2015). Our
Supreme Court has established that the employer must prove job availability, or
there will be a presumption of total disability. Barrett v. Otis Elevator Company,
246 A.2d 668, 672 (Pa. 1968). An employer must demonstrate that the job offer will
return the claimant to productive employment, not just avoid payment of
compensation. Kachinski v. Workmen’s Compensation Appeal Board (Vepco
Construction Company), 532 A.2d 374, 379-80 (Pa. 1987). Once a claimant
demonstrates a loss of earning power as a result of the work injury, the burden of
proving the availability of suitable employment is on the employer. Presby Homes
and Services v. Workers’ Compensation Appeal Board (Quiah), 982 A.2d 1261,
1266 (Pa. Cmwlth. 2009). The WCJ must then determine whether the claimant can
perform the available job. General Electric Company v. Workers’ Compensation
Appeal Board (Myers), 849 A.2d 1166, 1172-73 (Pa. 2004) (plurality opinion). A
claimant is required to make a good faith effort to work at an available job in order
to avoid modification of benefits under the Workers’ Compensation Act (Act).3 The
term “bad faith” in this context is merely the characterization of a claimant’s action
in refusing to follow up on a job referral with sufficient reason. Kachinski, 532 A.2d
at 380.
In its first issue, Employer argues that the WCJ and the Board
misapplied the burden of proof on the petitions and, thus, erred in reinstating
Claimant’s benefits effective November 19, 2017. “The WCJ essentially found that
3
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2710.
6
Claimant failed to follow up in good faith on suitable work offered as of July 2017.”
Board Adjudication, 8/18/2021, at 10; R.R. 91a. For that reason, the WCJ modified
Claimant’s TTD benefits to partial disability benefits from July 25, 2017, through
November 18, 2017. The WCJ found no medical support for Claimant’s contention
he had been taken out of his modified duty job in July 2017. Claimant testified that
he had been taken out of work by Dr. Burke, a WorkNet physician. However, the
WCJ found that there was no documentary evidence to support Claimant’s
understanding in this regard, and Dr. Burke did not testify. In addition, Employer’s
witness credibly established that the modified duty job offered to Claimant on July
25, 2017, was within Claimant’s restrictions. Employer argues that the lack of
available work was Claimant’s responsibility because he never responded to
Employer’s job offer, which constitutes bad faith.
A claimant is entitled to a reinstatement of benefits if he can show that
the reason for the modification of his benefits no longer exists, typically “by showing
that his earning power is once again adversely affected by his work injury.”
Napierski v. Workers’ Compensation Appeal Board (Scobell Company, Inc. and
Cincinnati Insurance Company), 59 A.3d 57, 61 (Pa. Cmwlth. 2013). However, “[a]
claimant’s burden of proof is different where his benefits have been modified
because of his bad faith conduct.” Id. “[O]nce a claimant has refused an available
job in bad faith, his employer’s obligation to show job availability ends.” Id. at 62.
“Instead, the claimant must show a worsening of his medical condition to be granted
a reinstatement to total disability.” Id.In Myers, our Supreme Court noted a caveat to this general rule. There,
the Supreme Court stated:
[w]hile a claimant’s benefits are generally modified indefinitely
after a bad faith refusal, they may be modified only temporarily
7
in circumstances in which the job was clearly temporary at the
time it was referred to the claimant . . . . “[W]here a claimant
acts in bad faith in refusing suitable and available work,
permanent at the time it is offered, the claimant’s benefits are
reduced by the amount of earnings the job would have produced.
Where a claimant acts in bad faith in refusing a position which is
only a temporary job when offered, benefits will be modified for
a period equal to the length of the time the job was actually
available. The determination of the duration of the position,
either temporary or permanent, is to be made at the time of the
referral and is to be based upon the information available to the
employer and claimant at [that time].”
Myers, 849 A.2d at 1176 (quoting Bennett v. Workmen’s Compensation Appeal
Board (Hartz Mountain Corporation), 632 A.2d 596, 600 (Pa. Cmwlth. 1993)). The
employer is not required to demonstrate job availability where the employee
originally refused the job offer in bad faith, Pitt Ohio Express v. Workers’
Compensation Appeal Board (Wolff), 912 A.2d 206, 208 (Pa. 2006), or to keep “a
job open indefinitely, waiting for the claimant to decide when he wants to work,”
Spinabelli v. Workmen’s Compensation Appeal Board (Massey Buick, Inc.), 614
A.2d 779, 780 (Pa. Cmwlth. 1992).
In the present case, the WCJ did not base Claimant’s reinstatement on
Dr. Stempler’s credited opinion. Rather, the WCJ based the reinstatement on the
lack of availability of the position, which, in and of itself, does not support a
restoration of Claimant’s TTD benefits. Because Claimant engaged in bad faith
conduct by not accepting the modified-duty position prior to the worsening of his
condition, his benefits were properly modified. We agree with Employer that the
WCJ applied the wrong burden of proof in the reinstatement of Claimant’s TTD
benefits.
8
However, the WCJ had a basis for reinstating Claimant’s TTD benefits
on the basis of Dr. Stempler’s credited testimony that Claimant was unable to
perform any work. Thus, even though Employer is correct in its argument about the
application of the burden of proof, we must affirm the reinstatement of Claimant’s
TTD benefits because Claimant proved a worsening of his condition.
In its next issue, Employer contends that the WCJ’s finding that Dr.
Stempler was credible was inconsistent with the WCJ’s reinstatement of benefits as
of November 19, 2017, rather than November 13, 2017, the date Dr. Stempler took
Claimant off work. Employer suggests it makes no sense that the WCJ reinstated
Claimant’s benefits five days after Dr. Stempler’s determination. Employer
summarizes the situation as follows:
It appears, based on the findings of fact, that the WCJ could not
determine whether Claimant’s benefits should have been
reinstated to total due to: (1) the modified duty no longer being
available (because Claimant[’s employment had been]
terminated); or (2) because Dr. Stempler determined Claimant
was unable to perform any work as of November 13, 2017 ([the]
date Dr. Stempler first saw Claimant and took him out of work).
Employer Brief at 22.
There is no dispute that the WCJ reinstated Claimant’s benefits on the
basis of Dr. Stempler’s credited testimony. Section 422(a) of the Act requires that
the WCJ author a reasoned decision. It reads, in pertinent part, as follows:
All parties to an adjudicatory proceeding are entitled to a
reasoned decision containing 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 decisions so
that all can determine why and how a particular result was
reached. The workers’ compensation judge shall specify the
evidence upon which the workers’ compensation judge relies and
state the reasons for accepting it in conformity with this section.
9
When faced with conflicting evidence, the workers’
compensation judge must adequately explain the reasons for
rejecting or discrediting competent evidence. Uncontroverted
evidence may not be rejected for no reason or for an irrational
reason; the workers’ compensation judge must identify that
evidence and explain adequately the reasons for its rejection.
The adjudication shall provide the basis for meaningful appellate
review.
Section 422(a) of the Act, 77 P.S. §834. The WCJ’s decision was reasoned in that
he explains the basis for the outcome, namely Dr. Stempler’s credited opinion that
as of November 13, 2017, Claimant was not able to work at any job.
The record supports the modification of Claimant’s benefits from total
to partial disability from July 25, 2017, through November 12, 2017, based on Dr.
McCoy’s credited opinion that Claimant could work 24 hours a week and was
available to work. However, Dr. Stempler’s credited opinion established that
Claimant’s condition worsened and that he could no longer work in any position as
of November 13, 2017. Because Claimant did not cross-appeal the November 19,
2017, date of his reinstatement, it cannot be revised to November 13, 2017.
For these reasons, we affirm the Board on the basis that Dr. Stempler’s
credited opinion established that Claimant is unable to work in any capacity. The
lack of availability of a position with Employer as of November 19, 2017, did not
support reinstatement. At most, it supports the end date of the modification of
Claimant’s benefits.4
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
4
“We may affirm on different grounds where grounds for an affirmance exist.” City of Pittsburgh
v. Logan, 780 A.2d 870, 878 n.10 (Pa. Cmwlth. 2001).
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Overbrook Golf Club, :
Petitioner :
:
v. : No. 940 C.D. 2021
:
Mark Scott (Workers’ :
Compensation Appeal Board), :
Respondent :
ORDER
AND NOW, this 17th day of June, 2022, the order of the Workers’
Compensation Appeal Board, dated August 18, 2021, is AFFIRMED.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita