K. Wescoe v. FedChem, LLC & SWIF (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kirk Wescoe, :
Petitioner :
:
v. : No. 1393 C.D. 2021
: Argued: September 12, 2022
FedChem, LLC and State Workers’ :
Insurance Fund (Workers’ :
Compensation Appeal Board), :
Respondents :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE DUMAS FILED: December 7, 2022
Kirk Wescoe (Claimant) has petitioned this Court to review an
adjudication of the Workers’ Compensation Appeal Board (Board), which affirmed
in part and reversed in part the decision of the Workers’ Compensation Judge (WCJ).
Specifically, the Board affirmed the WCJ’s modification of Claimant’s benefits but
reversed its award of litigation costs. Upon review, we affirm.
I. BACKGROUND
On September 8, 2011, Claimant sustained a work-related injury to his
lower back.1 Fedchem, LLC (Employer) acknowledged the injury as a lower back
strain in a notice of compensation payable, which was later amended to include an
L4-5 disc herniation with radiculopathy. Claimant received disability benefits at a
weekly rate of $858 based upon an average weekly wage of $1,329.64. On August
1
Unless stated otherwise, we adopt the factual background for this case from the Decision
of the WCJ, entered September 22, 2020, which is supported by substantial evidence of record.
See WCJ Decision, 9/22/20, at 3-8.
18, 2016, Employer and the State Workers’ Insurance Fund (collectively,
Respondents) filed a petition seeking to modify Claimant’s disability benefits based
upon their labor market survey and earning power assessment.
At a hearing before the WCJ, both parties presented documentary and
testimonial evidence, including testimony from vocational experts. Employer’s
vocational expert, Julie Stratton, testified that she performed a vocational evaluation
of Claimant and found Claimant employable. In June 2016, Stratton sent Claimant
two letters, which identified four positions: (1) a dispatcher at Blue Ridge
Communications; (2) a customer service position at PenTeleData; and cashier
positions available with (3) HMS Host and (4) A Prawn Plus. Regarding the latter
two positions, Stratton advised Claimant that he could complete the application for
HMS Host online but had to apply in person for the position at A Prawn Plus.
Stratton did not state an application deadline for either of these positions. The four
jobs paid between $320 and $372.50 per week. Stratton testified that she did not
know whether Claimant had applied for the positions identified in her letters.
Claimant presented Dennis Mohn as a vocational expert. Mohn
testified that Claimant lacked the necessary computer and customer service skills for
the Blue Ridge Communications position; that Claimant was not qualified for the
PenTeleData position; that Claimant had no relevant work experience for the HMS
Host position; and that Claimant did not have the ability to carry forty pounds or the
work experience necessary to work at A Prawn Plus.
On September 17, 2017, the WCJ denied Employer’s petition and
awarded Claimant litigation costs. According to the WCJ, Employer had not proven
that Claimant was afforded an opportunity to perform the four jobs identified for
him. Employer appealed to the Board, which affirmed despite noting certain flaws
2
in the WCJ’s analysis. Based on Claimant’s credible testimony, the Board agreed
that Employer had failed to establish the existence of “vocationally suitable” work.
Bd. Op., 11/14/18, at 7.
On appeal to this Court, a panel determined that the WCJ had erred (1)
by requiring that Claimant receive a job offer as a condition precedent to modifying
benefits and (2) in not addressing the testimony of the vocational experts. Fedchem,
LLC v. Workers’ Comp. Appeal Bd. (Wescoe), 221 A.3d 348, 357 (Pa. Cmwlth.
2019), appeal denied, 232 A.3d 561 (Pa. 2020). The panel therefore remanded for
further proceedings. Id.On remand, the WCJ granted the petition. According to the WCJ, three
of the job positions identified by Employer were inappropriate for Claimant, but a
fourth, the cashier position at HMS Host, was appropriate. The HMS Host position
paid $8.00 per hour for 40 hours per week. Accordingly, Claimant’s benefits were
modified as of August 3, 2016, from the amount of $858.00 to the amount of $673.09
per week. Because the WCJ further reasoned that Claimant was partially successful
in defending the petition, the WCJ awarded Claimant litigation costs. Both parties
appealed to the Board, which affirmed the modification but reversed the award of
litigation costs.2 Claimant now appeals to this Court.
II. ISSUES
Claimant asserts that the WCJ erred in granting Employer’s
modification petition by improperly shifting the burden of proving that the positions
2
The Board dismissed Claimant’s appeal based on its conclusion that this Court had
directed certain findings be made by the WCJ. Bd. Op., 11/17/21, at 4. That is incorrect. In
Fedchem, this Court recognized that there was sufficient evidence to substantiate certain findings
and directed the WCJ to make credibility determinations. See Fedchem, 221 A.3d at 356-57. In
the alternative, the Board reviewed the testimony of Claimant and determined that there was
sufficient evidence to infer that the HMS Host position remained open and available. Bd. Op.,
11/17/21, at 4 n.1.
3
identified by Employer’s vocational expert were open and available. See Pet’r’s Br.
at 10. Further, Claimant asserts that the WCJ properly awarded litigation costs when
he was successful in part in his defense of the modification petition. Id. at 15-17.
III. ANALYSIS
In a workers’ compensation appeal, our review is limited to determining
whether an error of law was committed, whether constitutional rights were violated,
and whether necessary findings of fact are supported by substantial evidence. Bryn
Mawr Landscaping Co. v. Workers’ Comp. Appeal Bd. (Cruz-Tenorio), 219 A.3d
1244, 1252 n.5 (Pa. Cmwlth. 2019) (citation omitted).
A. WCJ Properly Applied the Burden of Proof
According to Claimant, the evidence presented by Employer failed to
satisfy Employer’s burden of proving that there were positions open and available.
See Pet’r’s Br. at 10. He asserts that, because Stratton testified that she contacted
the HMS Host position on the date that she sent the letter to Claimant but was
unaware of whether Claimant applied to the position, there was no evidence that the
positions remained open and available until Claimant had an opportunity to apply.
Id. at 11-14 (citing in support Smith v. Workers’ Comp. Appeal Bd. (Supervalu
Holdings PA, LLC), 177 A.3d 394 (Pa. Cmwlth. 2018) (en banc)). 3
3
In response, Employer contends that this claim is barred by res judicata and/or collateral
estoppel, because Claimant first raised this issue in response to Employer’s initial appeal to this
Court, which ruled in Employer’s favor. Resp’t’s Br. at 17-20. Alternatively, Employer contends
that the holding in Smith should not be given retroactive effect because Smith was decided after
the WCJ’s decision on September 22, 2017. Resp’t’s Br. at 21-26 (citing Smith, 177 A.3d at 394)).
However, for collateral estoppel to apply, it must be shown that 1) the issue decided in the
prior case is identical to the one presented in the latter case; 2) there was final judgment on the
merits; 3) party against whom doctrine is asserted was party or in privity with a party in the prior
case and had full and fair opportunity to litigate the issue; and 4) the determination in the prior
proceeding was essential to the judgment. See Pucci v. Workers’ Comp. Appeal Bd. (Woodville
State Hosp.), 707 A.2d 646 (Pa. Cmwlth. 1998); see also Weney v. Workers’ Comp. Appeal Bd.
4
Under Section 306(b)(2) of the Workers’ Compensation Act (Act), Act
of June 2, 1915, P.L. 736, as amended, 77 P.S. § 512(2), an employer may seek a
modification of a claimant’s benefits by (1) offering the claimant a specific job that
he is capable of performing, or (2) establishing earning power through expert
opinion evidence, which is based on job listings with agencies of the department,
private job placement agencies, and advertisements in the usual employment area.
See Kleinhagan v. Workers’ Comp. Appeal Bd. (KNIF Flexpak Corp.), 993 A.2d
1269, 1275 (Pa. Cmwlth. 2010).
The employer bears the burden of proving the claimant’s earning
power. Valenta v. Workers’ Comp. Appeal Bd. (Abington Manor Nursing Home and
Rehab and Liberty Ins. Co.), 176 A.3d 374, 384 (Pa. Cmwlth. 2017). A claimant
need not receive a potential job offer in order for the employer to establish that the
claimant has earning power. However, the jobs identified by the employer must be
“actually open and potentially available, not simply jobs that are already filled with
existing employees.” Phoenixville Hosp. v. Workers’ Comp. Appeal Bd. (Shoap),
81 A.3d 830, 843 (Pa. 2013). Evidence of a job application alone is insufficient to
meet the employer’s burden because this evidence “is so ambiguous and so
suggestive of different inferences which amount to speculation.” Smith, 177 A.3d
at 404. If there is additional circumstantial evidence about a job application,
(Mac Sprinkler Systems, Inc.), 960 A.2d 949, 954 (Pa. Cmwlth. 2008) (discussing requirements to
show res judicata).
In Fedchem, the Court considered whether the WCJ had erred in denying Employer’s
modification petition without first addressing the testimony of the vocational experts and making
credibility determinations thereon. Fedchem, 221 A.3d at 354. While recognizing there was
sufficient evidence in the record to support Employer’s burden, see id. at 356, we did not make
factual findings, nor did we conclude as a matter of law that Employer had met its burden. Id. at
357. Rather, we vacated the Board’s decision and remanded with express instructions that the
WCJ make appropriate credibility findings before deciding “the question of Claimant’s vocational
suitability.” Id. Thus, Claimant’s argument is not barred by issue preclusion.
5
however, such evidence may support a finding that the position is open and available.
Id. A claimant may refute the employer’s evidence by showing that the employer’s
labor market survey was erroneous, or that “the claimant’s actual experience with
the employers identified in the employer’s labor market surveys shows that the
positions were not available.” Phoenixville, 81 A.3d at 844.
This Court’s en banc decision in Smith is instructive. In that case, the
Court considered whether the employer had met its burden of proving that the jobs
remained “open until such time as the claimant is afforded a reasonable opportunity
to apply for them,” and whether the WCJ improperly shifted the burden to the
claimant to prove that the positions were not available. Smith, 177 A.3d at 401-02.
The employer’s witness identified five jobs compatible with the claimant’s
vocational and medical restrictions, which were available at the time she conducted
the survey. Id. at 401. The vocational expert could not testify as to whether the
jobs referred were open and available beyond the date that she contacted the
prospective employers. However, the claimant testified that he applied for the
positions upon receiving the referrals and interviewed for some of the positions. Id.
at 404. The Court upheld the modification because for two of the five jobs there was
sufficient circumstantial evidence, e.g., the claimant’s job interview, to corroborate
the claimant’s job application.
As in Smith, there is sufficient circumstantial evidence to corroborate
Claimant’s application, thus satisfying Employer’s burden that the HMS Host
position remained open and available. See Smith, 177 A.3d at 404. Claimant
testified that on August 2, 2016, he physically went to the location for the position
and requested that someone print an application. Notes of Testimony (N.T.) from
WCJ’s Hr’g, 2/1/2017, at 16. A representative at the location indicated that he could
6
not print the application but recommended that Claimant apply online for the
position. Id. at 17. Thereafter, Claimant testified that he applied for the job. Id.
Based on this testimony, and the WCJ’s credibility findings, the Board inferred that
the HMS Host position remained open and available. Bd. Op., 11/17/21, at 4 n.1.
Therefore, the WCJ did not improperly shift the burden to the Claimant.
B. Claimant Not Entitled to Litigation Costs
Claimant asserts that he is entitled to litigation costs because he
successfully defended against Employer’s petition. See Pet’r’s Br. at 15-17.
According to Claimant, the WCJ credited his challenge to several jobs identified by
Respondents that paid much higher wages. Id. For example, Claimant notes, the
highest paying job identified by Employer would have reduced his benefits to
$586.73 per week. Id. However, in finding that only the HMS Host position was
suitable, Claimant’s benefits were only reduced to $673.09, a quantifiable benefit of
$86.36 per week or $345.44 per month. Id. Thus, Claimant concludes that he is
entitled to litigation costs. Id.
Section 440(a) of the Act4 “authorizes an award to a claimant for
litigation costs where the claimant prevails in part or in whole.” Reyes v. Workers’
Comp. Appeal Bd. (AMTEC), 967 A.2d 1071, 1078 (Pa. Cmwlth. 2009). “‘[A]
claimant must prevail on the contested issue in order to be awarded litigation costs.’”
Reyes, 967 A.2d at 1078 (quoting Jones v. Workers’ Comp. Appeal Bd. (Steris
Corp.), 874 A.2d 717, 721 (Pa. Cmwlth. 2005)). “For litigation costs to be
reasonable, the WCJ must ascertain the extent to which they relate to the ‘matter at
issue’ on which [the c]laimant prevailed . . . .” Jones, 874 A.2d at 722.
4
Added by the Act of Feb. 8, 1972, P.L. 25.
7
Generally, where a change in a claimant’s favor is not the result of his
effort to defend against that change, he is not entitled to an award. See Bentley v.
Workers’ Comp. Appeal Bd. (Pittsburgh Bd. of Educ.), 987 A.2d 1223, 1230 (Pa.
Cmwlth. 2009). A claimant is not entitled to reimbursement of any litigation costs
in a modification petition where the judge accepted the employer’s evidence as to a
lower paying position, but not as to a higher paying position, as the only contested
issue in the matter was the availability of suitable work and the claimant lost on the
issue. See Jones, 874 A.2d at 721 (citing Holmes v. Workers’ Comp. Appeal Bd.
(Pisani Bros., Inc.), 485 A.2d 874 (Pa. Cmwlth. 1984)).
Here, the contested issue was the availability of suitable work. As the
Board properly reasoned, Claimant did not prevail on this issue. See Jones, 874
A.2d at 721; Holmes, 485 A.2d 874. Therefore, the Board appropriately reversed
the WCJ’s award of litigation costs.
IV. CONCLUSION
For the foregoing reasons, we discern no legal error in the Board’s
affirmance of the WCJ’s finding that the position was open and available and its
reversal of the WCJ’s award of attorney’s fees. See Bryn Mawr Landscaping, 219
A.3d at 1252 n.5. Accordingly, we affirm the Board’s order.
LORI A. DUMAS, Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kirk Wescoe, :
Petitioner :
:
v. : No. 1393 C.D. 2021
:
FedChem, LLC and State Workers’ :
Insurance Fund (Workers’ :
Compensation Appeal Board), :
Respondents :
ORDER
AND NOW, this 7th day of December, 2022, the Order of the Workers’
Compensation Appeal Board, dated November 17, 2021, in the above-captioned
matter is AFFIRMED.
LORI A. DUMAS, Judge