C. Sealey v. WCAB (Elwyn Inc.)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Charles Sealey, :
Petitioner :
:
v. : No. 1524 C.D. 2019
: Submitted: March 13, 2020
Workers’ Compensation Appeal Board :
(Elwyn Inc.), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: September 29, 2020
Charles Sealey (Claimant) petitions for review of an Order of the Workers’
Compensation Appeal Board (Board) that affirmed a Workers’ Compensation
Judge’s (WCJ) Decision, granting a Suspension Petition filed by Elwyn Inc.
(Employer) and denying Claimant’s Review Petition.1 The WCJ found that while
Claimant was not capable of performing various positions that Employer offered in
writing to him, Claimant was capable of performing a job shredding paper for
Employer, about which Employer’s witness testified. The WCJ also found Claimant
did not meet his burden to amend his accepted work injury to include additional
1
The WCJ’s Decision also denied a Termination Petition filed by Employer, which
Employer did not appeal. Therefore, as it is not before us, we limit our discussion of the
Termination Petition to the extent possible.
injuries. Upon review, we affirm the Board with respect to the Review Petition, but
reverse with respect to the Suspension Petition as there is not substantial evidence
to support the offer of a job to Claimant within his restrictions.
I. BACKGROUND
On May 20, 2017, during the course and scope of his employment with
Employer, Claimant suffered a lower back strain while repositioning a client. A
Notice of Temporary Compensation Payable, which converted by operation of law,
was issued describing the injury as a sprain or tear to the lower back area. In October
2017, Employer filed a Termination Petition alleging full recovery. In December
2017, Employer filed its first Suspension Petition alleging that it offered Claimant a
specific job that Claimant was capable of performing but refused, and as a result,
Claimant’s benefits should be suspended as of December 6, 2017. Three months
later, Employer filed a second Suspension Petition alleging Claimant refused a
specific job offer he was capable of performing, and therefore, Claimant’s benefits
should be suspended as of March 12, 2018. Thereafter, Claimant filed a Review
Petition seeking to amend the injury to include “aggravation of lumbar stenosis,
aggravation of lumbar degenerative disc disease and lumbar radiculopathy.” (WCJ
Decision, Finding of Fact (FOF) ¶ 5; Reproduced Record (R.R.) at 8a.2)
The various petitions were assigned to a WCJ for disposition. In support of
its petitions, Employer presented the deposition testimony of Donald Leatherwood,
M.D., who testified as follows. Dr. Leatherwood is a board-certified orthopedic
2
Although Rule 2173 of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 2173,
requires the reproduced record to be numbered in Arabic figures followed by a small “a,” the
Reproduced Record here only utilizes Arabic figures. We cite to the Reproduced Record in the
proper format.
2
surgeon who conducted an independent medical examination (IME) of Claimant on
September 26, 2017. In addition to the physical examination of Claimant, Dr.
Leatherwood reviewed two magnetic resonance imagings (MRI) that Claimant
underwent, one in 2015 and the other in 2017. According to Dr. Leatherwood,
neither MRI showed trauma, but both showed degenerative changes. Based upon
his examination and review of Claimant’s medical records, Dr. Leatherwood opined
that Claimant “sustained a lumbosacral sprain and strain superimposed by
underlying degenerative disc disease.” (R.R. at 91a.) The degenerative changes
were not attributable to Claimant’s employment or aggravated by the work injury.
According to Dr. Leatherwood, Claimant was fully recovered from the accepted
work injury as of the date of his IME and was able to return to work without
restrictions. Dr. Leatherwood reviewed a job offer packet Employer sent Claimant
related to a position for residential living staff (RLS), which based upon his review
of a job description, Dr. Leatherwood thought Claimant was capable of performing
without restrictions. (Leatherwood Dep. Tr. at 19-20, Certified Record (C.R.) Item
29.3)
Marie Johnson, Employer’s Director of Risk Management (Risk Management
Director), testified via deposition as follows. Upon receipt of Dr. Leatherwood’s
report, Risk Management Director reviewed and matched Claimant to available
positions. Three jobs in RLS, which was the same position as Claimant’s preinjury
position, were offered to Claimant. The three positions were at different locations
on Employer’s main campus and all paid the same as Claimant’s preinjury wage.
Claimant did not return to work, nor did Claimant contact Employer to discuss
returning to work in any other capacity.
3
Certain pages of the transcript were omitted from the Reproduced Record. Accordingly,
in those instances, we cite to the page of the transcript in the Certified Record.
3
At the time of her deposition on March 6, 2018, Risk Management Director
testified there were three positions currently open that she felt Claimant was capable
of performing. Two of the positions were as an instructor at Employer’s sheltered
workshop, where clients of Employer with disabilities would work separating x-rays
from their jacket or envelope for recycling. The instructor would be responsible for
overseeing the clients and could sit, stand, and walk around as needed. The other
position was as a production coordinator, which was also in the sheltered workshop.
This position was “less hands-on with the client” than the instructor position, but
still involved helping clients with their projects. (R.R. at 144a.) Risk Management
Director acknowledged these positions might need to assist with lifting clients on
and off toilets or changing their diapers. Risk Management Director testified that
Employer has placed other injured workers in the training instructor and production
coordinator positions before. Claimant’s counsel interrupted questioning of Risk
Management Director and asked whether Employer would provide a formal written
offer of these positions, to which Employer’s counsel responded that it was not
required to provide such offers but would do so. Risk Management Director further
testified that after his work injury, Claimant worked a light-duty clerical job for
Employer. Specifically, Risk Management Director stated Claimant shredded paper
for the Risk Management Department on June 6 and 12, 2017. According to Risk
Management Director, Claimant could use either hand, sit or stand, and take breaks
as needed in this position. He could also lift one sheet at a time, and there was no
work quota. The shredding work was still available, Risk Management Director
testified, and other injured workers perform that work “almost every day.” (Id. at
152a.) Risk Management Director stated Employer can make accommodations for
an individual’s restrictions, which Employer is “pretty good” at doing because it
4
works with people with disabilities as a business. (Id.) However, Claimant never
requested any accommodations and chose to work only those two days shredding
paper.
Upon cross-examination, Claimant’s counsel confirmed that Risk
Management Director was going to send a formal written offer of the positions to
which she testified on direct examination. Risk Management Director confirmed
she would send a “follow-up letter confirming the job offers from today.” (Id. at
155a.) Claimant’s counsel then asked Risk Management Director, “So what jobs are
you going to send a letter offering him a job for?”, to which Risk Management
Director responded: “I will offer him an instructor position in the Wilmington
location and a . . . production coordinator position in the Wilmington office.” (Id.
at 155a.) Counsel then questioned Risk Management Director further about the
requirements of those two positions, during which time Claimant’s counsel asked
the witness why Claimant was not sent a written job offer prior to the deposition.
Risk Management Director explained that Claimant had been worried about the
commute and she knew Employer had openings in Wilmington. (Id. at 160a-62a.)
Risk Management Director further acknowledged that she could have sent a letter,
similar to the one she sent in November 2017. (Id. at 161a.) At the conclusion of
the cross-examination of Risk Management Director, which focused solely on the
instructor and production coordinator positions, Claimant’s counsel stated he “[n]ow
feel[s] like [he] ha[s] enough information . . . to communicate these offers directly
to [Claimant]” and asked Risk Management Director whether “there [we]re any
other jobs that [she] wanted to offer [Claimant] for the first time today.” (Id. at
164a.) Employer’s counsel objected to the form of the question before Risk
5
Management Director responded, “No, not at this time.” (Id.) Employer’s counsel
asked no questions on redirect examination.
A copy of a letter dated March 6, 2018, from Risk Management Director to
Claimant was introduced as evidence in the proceedings before the WCJ. The letter
stated, based on Dr. Leatherwood’s Notice of Ability to Return to Work, Employer
was “excited to offer [Claimant] two positions, Training Instructor and Production
Coordinator. . . . Please advise by 3/21/18 which position you will accept.” (Id. at
179a.) The letter then detailed the location and shifts for both of the positions and
indicated both pay Claimant’s preinjury average weekly wage. The letter did not
offer the shredding position. Also introduced into evidence was a copy of a
November 22, 2017 letter from Risk Management Director to Claimant offering him
one of three positions in RLS. (Id. at 68a.) In addition, a copy of the Notice of
Ability to Return to Work dated October 6, 2017, was introduced. (Id. at 65a.)
Claimant testified via deposition and live before the WCJ. At his January 9,
2018 deposition, Claimant testified, in relevant part, as follows. After his May 20,
2017 work injury, he returned to work for Employer two days, June 6, 2017, and
September 13, 2017. He received a letter from Employer offering him a position as
RLS counselor in one of three locations, but he did not contact Employer about the
positions. Claimant does not believe he is capable of performing his preinjury
position because of the physical requirements involved. Claimant does not believe
he is capable of performing any work. Claimant testified he could not copy, scan,
or shred documents because he cannot sit in a chair. He does not think he could
work even if he was able to switch physical positions.
Claimant testified live before the WCJ at a hearing on April 23, 2018, in
relevant part, as follows. Claimant described the ongoing pain he experiences and
6
continues to believe he is not capable of returning to his preinjury position. (Id. at
211a.) Claimant also does not believe he can perform the jobs offered to him by
Employer in the second offer letter because of the lifting requirements associated
with each. On cross-examination, Claimant admitted he has not looked for work or
discussed with Employer work activities he believes he is capable of performing.
He reiterated that he does not think he can work in any capacity. Claimant was asked
whether he could work if he was permitted to alternate between sitting and standing
and responded:
I would say, you know, if it was something that I could sit down and
not really do anything, maybe so. You know, not a whole lot because
of my lower back and from the pain that is shooting down to the bottom
of my feet all the time. I mean, it would be difficult, but I would try.
(April 23, 2018 Hr’g Tr. at 16, C.R. Item 21.)
In support of his Review Petition, Claimant presented the deposition
testimony of Kim-Huong Thi Nguyen, D.O., who is board certified in family
practice. Dr. Nguyen first saw Claimant for the work injury on August 7, 2017,4 and
referred him for an MRI. Dr. Nguyen reviewed the radiologist’s report, which
showed mild to moderate spondylosis that Dr. Nguyen described as a degenerative
disease of the lower back. According to Dr. Nguyen, the report also “show[ed]
congenital narrowing of the spinal canal and multi-level stenosis,” “marked severe
stenosis” in the L3-4 region, as well as “a small disc protrusion with possible
compression of the traversing L-4 nerve root” at L3-4. (R.R. at 185a-86a.) Dr.
Nguyen provided Claimant a note excusing him from work on September 14, 2017,
based upon Claimant’s work-related injury. At a follow-up examination a month
later, Dr. Nguyen prescribed Claimant pain medication. Dr. Nguyen continued
4
Dr. Nguyen has been Claimant’s family doctor since April 2016.
7
treating Claimant over the course of the next several months. At a March 2018 visit,
Dr. Nguyen reviewed an electromyography (EMG) Claimant underwent, which,
according to Dr. Nguyen, was “an abnormal study on the right L4-5 and on the left,
L-5 ha[d] radiculopathy,” both of which were consistent in Dr. Nguyen’s opinion
with Claimant’s subjective complaints and Dr. Nguyen’s physical exams. (Id. at
188a.) At this visit, Dr. Nguyen also reviewed an offer letter Claimant received from
Employer and the accompanying job descriptions. Dr. Nguyen was of the opinion
that Claimant could not perform these jobs because of his work-related injury. Dr.
Nguyen additionally reviewed the deposition of Risk Management Director and
opined that Claimant could not perform either the work of the training instructor or
production coordinator positions that were subsequently offered by Employer. In
addition to the lumbar strain/sprain, Dr. Nguyen diagnosed Claimant as suffering
from lumbar radiculopathy and an aggravation of his preexisting degenerative disc
disease and lumbar stenosis of his lower back. It was Dr. Nguyen’s opinion that
these resulted from Claimant’s work injury and prevented him from returning to his
preinjury position.
On cross-examination, Dr. Nguyen was asked to compare the results of MRIs
performed in 2015 and 2017. Dr. Nguyen opined the 2017 MRI was less severe or
better than the 2015 MRI. (Id. at 194a.) When asked whether Claimant could be
gainfully employed, Dr. Nguyen responded, “[i]f it didn’t involve heavy lifting,
bending, I believe he could.” (Id. at 195a.) Dr. Nguyen also believed Claimant
could work if he alternated between sitting and standing, had to lift a single sheet of
paper, or had to shred or scan documents. (Id.)
Based upon the evidence presented, the WCJ issued a Decision denying
Employer’s Termination Petition and Claimant’s Review Petition, and granting
8
Employer’s Suspension Petition effective March 6, 2018. In reaching this Decision,
the WCJ credited Claimant’s testimony with regard to injuring his back and about
his treatment of same. The WCJ did not credit Claimant to the extent he alleged the
work injury caused an aggravation of his lumbar stenosis, an aggravation of his
lumbar degenerative disc disease, or lumbar radiculopathy. The WCJ reasoned that
the MRIs did not show any change as a result of the work injury. (FOF ¶ 25.)
The WCJ further found that, based upon the testimony of Dr. Nguyen,
Claimant could return to work. The WCJ credited Claimant’s testimony that he
could not lift or transfer a client or perform CPR but discredited Claimant’s
testimony that he could not shred documents. The WCJ stated he was “giv[ing]
Claimant the benefit of the doubt that he might have some ongoing low back
complaints,” but they “are not as severe as he portrays.” (Id. ¶ 26.) The WCJ found
Risk Management Director’s testimony “generally credible and persuasive.” (Id.
¶ 27.) The WCJ found Claimant’s preinjury job in RLS and the training instructor
and production coordinator positions “might be beyond Claimant’s capabilities,” but
determined the job shredding documents, which Claimant performed for two days
in June 2017, was within Claimant’s vocational and physical capabilities, available
to him, and would have paid him his preinjury wage. (Id.) The WCJ further found
Claimant did not respond or make a good faith effort to return to that position or
make any attempt to return to work or seek accommodations. (Id.)
The WCJ similarly found Dr. Leatherwood’s testimony “generally credible
and persuasive.” (Id. ¶ 29.) Specifically, the WCJ found Dr. Leatherwood “carefully
reviewed the MRI films and explained them in great detail” when testifying
Claimant did not suffer any additional injuries as a result of the work injury. As for
Dr. Leatherwood’s testimony that Claimant was fully recovered, the WCJ stated
9
Claimant was being given “the benefit of the doubt” “on this issue.” (Id.) The WCJ
again noted that, while Claimant probably could not perform some of the functions
of the RLS, training instructor, or production coordinator positions, Dr.
Leatherwood’s testimony did support that Claimant could sort and shred paper.
With respect to Dr. Nguyen’s testimony, the WCJ credited her testimony
about Claimant’s back pain and that Claimant’s degenerative disc disease after the
work injury was similar to before the injury. In addition, the WCJ credited Dr.
Nguyen’s testimony that Claimant could return to light-duty or sedentary work, such
as shredding paper, provided Claimant could alternate physical positions. The WCJ
rejected Dr. Nguyen’s testimony that Claimant suffered additional injuries, noting
the MRI studies do not support this testimony. Thus, the WCJ found no evidence
that the work injury aggravated any of Claimant’s preexisting back conditions.
Accordingly, based upon the evidence, the WCJ found Claimant suffered a
sprain to his lower back on May 20, 2017, but no other injuries. The WCJ further
found Claimant was capable of performing the shredding job that was offered to him
as of March 6, 2018, but Claimant did not exercise good faith in contacting
Employer, trying to perform the position, or seeking alternative employment.
Claimant appealed to the Board, which affirmed. In doing so, it rejected
Claimant’s argument that the WCJ’s finding Dr. Nguyen’s testimony not credible
was not based upon substantial evidence. The Board explained the WCJ, as the
factfinder, was free to accept or reject testimony, and here, the WCJ rejected Dr.
Nguyen’s testimony with regard to the MRIs in favor of Dr. Leatherwood’s
testimony based upon Dr. Leatherwood’s review of the actual films, which he
described in detail. (Board Opinion (Op.) at 4-5.) As for Claimant’s arguments that
his testimony supports Dr. Nguyen’s diagnosis of lumbar radiculopathy and that the
10
WCJ did not adequately address the 2018 EMG, the Board stated Claimant was
“disput[ing] the credibility determinations, which are left to the WCJ,” and discerned
no error. (Id. at 5.)
The Board likewise rejected Claimant’s argument that the WCJ erred by
granting the Suspension Petition based upon a job offer that Claimant argued was
insufficient. The Board reasoned that an employer must give notice of a general job
classification and description such that the claimant is reasonably apprised of the
duties. (Id. at 6.) According to the Board, Risk Management Director did this
through her testimony. (Id. at 8-9.) Furthermore, the Board noted that Claimant’s
own physician, Dr. Nguyen, testified Claimant could return to work provided it did
not involve heavy lifting or bending and he could change positions as needed, such
as with the shredding position. (Id. at 9.) Therefore, Claimant had an obligation to
respond and did not; thus, the Board concluded the WCJ properly suspended
Claimant’s benefits. (Id. at 9.)
Claimant now petitions for review of the Board’s Order.
II. PARTIES’ ARGUMENTS
On appeal,5 Claimant challenges both the grant of the Suspension Petition and
the denial of his Review Petition. With regard to the Suspension Petition, Claimant
argues the WCJ erred in suspending his benefits because there is not substantial
evidence to support the WCJ’s finding that Employer offered Claimant the shredding
position. According to Claimant, Risk Management Director testified she would,
and ultimately did, send a letter offering the training instructor and production
5
Our review is limited to determining whether constitutional rights were violated, errors
of law were committed, or “necessary findings of fact are supported by substantial evidence.”
Universal Am-Can, Ltd. v. Workers’ Comp. Appeal Bd. (Minteer), 762 A.2d 328, 331 n.2 (Pa.
2000).
11
coordinator positions but she only “casually testified” that Employer already had a
paper shredder position open for injured workers. (Claimant’s Brief (Br.) at 14.)
Claimant asserts the WCJ found Claimant was not capable of performing the training
instructor and production coordinator jobs that were actually offered, but found
Claimant could shred paper. Because there is no evidence that Employer offered the
shredder position to Claimant, Employer did not meet its burden and the shredder
position cannot form the basis of Claimant’s suspension. Citing Hill v. Workers’
Compensation Appeal Board (Ballard, Spahr, Andrews & Ingersoll), 824 A.2d 358(Pa. Cmwlth. 2003), Claimant contends that general references to an alternate
position, without descriptive information about the position, is insufficient.
With regard to the Review Petition, Claimant argues the WCJ’s Decision is
not supported by substantial evidence. Claimant argues the WCJ erred in relying on
Dr. Leatherwood’s opinion because he did not review a 2018 EMG, which showed
radiculopathy. Further, Claimant asserts, Dr. Leatherwood was wrong in his opinion
that the post-injury MRI was somewhat better than the preinjury MRI. Claimant
argues that “[s]ince the [WCJ]’s credibility findings in this regard do[] not permit
adequate review by the appellate courts, they are not well reasoned.” (Claimant’s
Br. at 18.) Accordingly, Claimant asks the Court to reverse the Board’s Order.
Employer responds that it met its burden in relation to the Suspension Petition
because it showed Claimant recovered enough to return to work and provided
evidence of an open position that was within Claimant’s medical restrictions.
According to Employer, it was Claimant who did not show he acted in good faith by
following through on the offer. Employer asserts it submitted the deposition
testimony of Risk Management Director, who testified as to the available positions,
which included the paper shredding position within her department. Employer
12
denies that there is an obligation that job offers be in writing. Employer further
asserts there was no obligation to provide more detailed information about the paper
shredding position because Claimant previously worked in that capacity. Employer
also points out that Claimant’s own physician, Dr. Nguyen, testified that Claimant
was able to perform the duties of that position. Employer argues Claimant did not
follow through on the offer because he did not believe he could work in any capacity,
which the WCJ rejected.
Finally, as to the Review Petition, Employer responds that there is sufficient
evidence to support its denial, namely Dr. Leatherwood’s testimony, which the WCJ
credited over Dr. Nguyen’s. Further, Employer asserts the WCJ adequately
explained her reasoning for accepting Dr. Leatherwood’s testimony over Dr.
Nguyen’s. To the extent Claimant asserts Dr. Leatherwood’s testimony was not
competent because Dr. Leatherwood did not review the EMG, Employer argues that
goes to the weight of the evidence, not competency, and like credibility, weight of
the evidence is within the exclusive purview of the WCJ. Regardless, Employer
asserts Claimant could not prevail because he bore the burden of proof on the Review
Petition and the WCJ rejected Dr. Nguyen’s testimony that Claimant suffered more
than a sprain. Thus, Claimant could not satisfy this burden. Furthermore,
Claimant’s challenge as to the WCJ’s finding that the post-injury MRI being
“somewhat better” than the preinjury MRI, (FOF ¶ 23), is “flat out wrong,”
Employer contends. (Employer’s Br. at 27). According to Employer, the finding in
question relates to Dr. Nguyen’s testimony on cross-examination, not Dr.
Leatherwood’s testimony. Employer asks the Court to affirm the Board’s Order.
13
III. DISCUSSION
A. Whether there is substantial evidence to support a finding that
Employer offered Claimant the paper shredding position.
We begin with the WCJ’s grant of Employer’s Suspension Petition on the
basis that Employer offered Claimant a position shredding paper, which was within
Claimant’s job restrictions, but upon which Claimant did not act in good faith and
follow through with Employer. In order to be entitled to the suspension of a
claimant’s workers’ compensation benefits, an employer bears the initial burden of
producing medical evidence to support a change in condition and “evidence of a
referral (or referrals) to a then open job (or jobs), which fits the occupational
category for which the claimant has been given medical clearance, e.g., light work,
sedentary work, etc.” Dixon v. Workers’ Comp. Appeal Bd. (Medrad, Inc.), 134
A.3d 518, 522 (Pa. Cmwlth. 2016) (quoting Kachinski v. Workmen’s Comp. Appeal
Bd. (Vepco Constr. Co.), 532 A.2d 374, 380 (Pa. 1987)6). The burden then shifts to
the claimant to show he or she acted in good faith in following through on the job
offer. Id.At issue here is whether there is substantial evidence to support the WCJ’s
finding that Employer offered Claimant the paper shredding position that the WCJ
relied upon to suspend Claimant’s benefits. Substantial evidence is defined as
“relevant evidence that a ‘reasonable person might accept as adequate to support a
conclusion.’” Pocono Mountain Sch. Dist. v. Workers’ Comp. Appeal Bd.
(Easterling), 113 A.3d 909, 918 (Pa. Cmwlth. 2015) (quoting Wieczorkowski v.
Workers’ Comp. Appeal Bd. (LTV Steel), 871 A.2d 884, 890 (Pa. Cmwlth. 2005)).
6
Although Kachinski was superseded in part by an amendment to Section 306(b) of the
Workers’ Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 512, the Court
continues to apply it in cases where the employer’s suspension or modification petition is based
upon its own offer of a specific job. South Hills Health Sys. v. Workers’ Comp. Appeal Bd.
(Kiefer), 806 A.2d 962, 968 (Pa. Cmwlth. 2002).
14
Here, Employer made several written job offers to Claimant, including
positions as RLS, training instructor, and production coordinator, all of which the
WCJ found were not within Claimant’s capabilities. The paper shredder position
that the WCJ ultimately found was offered to Claimant and was within Claimant’s
capabilities was based on testimony of Risk Management Director at her deposition.
This Court has held that an employer’s job offer need not be in writing, but may be
made orally. See, e.g., Nahas v. Workers’ Comp. Appeal Bd. (Synergistic Partners,
Inc.) (Pa. Cmwlth., No. 726 C.D. 2017, filed July 26, 2018), slip op. at 8 (holding
human resource coordinator’s testimony established a job offer); Devlin Elec., Inc.
v. Workers’ Comp. Appeal Bd. (Shurina) (Pa. Cmwlth., No. 837 C.D. 2013, filed
Sept. 24, 2014), slip op. at 20 (holding a job offer may be made through testimony
of an employer’s witness).7 Unlike in Nahas, however, where the human resources
coordinator testified that a sedentary position was available for the claimant and the
employer was offering this position to the claimant, slip op. at 3-4, here Risk
Management Director testified only generally about the paper shredding position
and its requirements. This general testimony was akin to the “blanket statements”
the employer’s witness made in Crawford County Care Center v. Workmen’s
Compensation Appeal Board (Daly), 649 A.2d 203, 206 (Pa. Cmwlth. 1994). In that
case, because no written or oral job offer was made, the Court held the “blanket
statements” that it would accommodate the claimant’s restrictions were insufficient.
Id. Here, after testifying about the training instructor and production coordinator
positions, Risk Management Director testified that Claimant previously performed
7
Unreported panel decisions of this Court filed after January 15, 2008, may be cited for
their persuasive value pursuant to Rule 126(b)(1) of the Pennsylvania Rules of Appellate
Procedure, Pa.R.A.P 126(b)(1), and Section 414(a) of this Court’s Internal Operating Procedures,
210 Pa. Code § 69.414(a).
15
light-duty work shredding paper for Employer for two days and such work was still
available. (R.R. at 150a-53a.) She explained the work could be performed using
either hand, and Claimant could lift as little as one sheet at a time. (Id. at 151a-52a.)
She further testified that the work could be performed sitting or standing, and
Claimant could take breaks as needed. (Id. at 151a.) Importantly, though, Risk
Management Director did not specifically offer the position to Claimant. On cross-
examination when Claimant’s counsel renewed a request he made during direct
examination to have Employer follow up with a formal written offer that he could
present to his client, Risk Management Director only identified the training
instructor and production coordinator positions as offers. (Id. at 155a.) When
directly asked what jobs Employer was going to offer, Risk Management Director
responded: “I will offer him an instructor position in the Wilmington location and a
. . . production coordinator position in the Wilmington office.” (Id.) After
questioning Risk Management Director further about the requirements of those two
positions that Risk Management Director identified, Claimant’s counsel concluded
the deposition by asking Risk Management Director whether there were any other
jobs she wanted to offer Claimant “for the first time,” to which Risk Management
Director responded, “No, not at this time.”
Subsequent to her deposition, Risk Management Director sent Claimant a
letter stating Employer was “excited to offer [Claimant] two positions, Training
Instructor and Production Coordinator,” and instructing Claimant “Please advise by
3/21/18 which position you will accept.” (Id. at 179a.) The offer clearly gave
Claimant a choice between one of two positions, the training instructor and
production coordinator position, and instructed that Claimant was to accept one of
those positions by the date specified. The letter did not offer the position shredding
16
paper to which Risk Management Director testified as one of the positions Claimant
could accept. Given this, we cannot say “a ‘reasonable person [would] accept [Risk
Management Director’s testimony] as adequate to support [the] conclusion’” that
Employer offered Claimant a job shredding paper in the Risk Management
Department. Pocono Mountain Sch. Dist., 113 A.3d at 918 (quoting Wieczorkowski,
871 A.2d at 890). Although Claimant’s counsel’s final question to Risk
Management Director asked whether there were any other jobs she wanted to offer
Claimant “for the first time,” (id.), and Claimant previously worked in the paper
shredding position, this work was performed more than a year prior for just two days.
Moreover, this question followed lengthy questioning by Claimant’s counsel about
the jobs Risk Management Director herself identified as the ones she was offering
Claimant – the instructor and production coordinator positions – when she was asked
point blank at the beginning of cross-examination what positions Employer was
offering Claimant. The subsequent offer letter clarified that it was the two positions,
the training instructor and production coordinator positions, that were offered to
Claimant for his return to work and he was to choose one of them. In short, there
was no offer of the paper shredding position. Absent an offer, there could be no
acceptance by Claimant.
In summary, when Risk Management Director’s testimony is viewed as a
whole and in the context of a subsequent written offer letter that did not include any
mention of the paper shredding position, we cannot conclude there was substantial
evidence to support a finding of a job offer made to Claimant. Accordingly, we
reverse the WCJ’s Decision to the extent it granted the Suspension Petition based
upon a job offer shredding paper.
17
B. Whether there is substantial evidence to support the WCJ’s Decision
denying the Review Petition.
Next, Claimant challenges the denial of his Review Petition on the ground
there was not substantial evidence to support the WCJ’s Decision. A claimant may
seek to amend the description of an injury in a notice of compensation payable by
filing a review petition and by meeting his burden of proving that he suffered
additional injuries “as a result of the work-related . . . injury for which [the] employer
accepted liability.” Commercial Credit Claims v. Workmen’s Comp. Appeal Bd.
(Lancaster), 728 A.2d 902, 906 (Pa. 1999). This burden is the same as if the claimant
had filed an original claim petition. Westinghouse Elec. Corp./CBS v. Workers’
Comp. Appeal Bd. (Korach), 883 A.2d 579, 592 (Pa. 2005). Accordingly, where the
causal connection between the injury and employment is not obvious, the claimant
must present credible, unequivocal medical evidence establishing causation.
Gribble v. Workers’ Comp. Appeal Bd. (Cambria Cty. Ass’n for the Blind), 692 A.2d
1160, 1163 (Pa. Cmwlth. 1997).
Claimant sought to amend the accepted injury, a lower back strain, to include
“aggravation of lumbar stenosis, aggravation of lumbar degenerative disc disease
and lumbar radiculopathy.” (R.R. at 8a.) He introduced the testimony of Dr. Nguyen
to support the Review Petition. Dr. Nguyen testified that Claimant suffered from
lumbar radiculopathy and aggravated his preexisting degenerative disc disease and
lumbar stenosis of his lower back, both of which Dr. Nguyen attributed to Claimant’s
work injury. (Id. at 189a-90a.) The WCJ, however, did not credit Dr. Nguyen’s
testimony in this regard. (FOF ¶ 28.) It is well settled that a WCJ is “the ultimate
fact finder in workers’ compensation cases, has exclusive province over questions
of credibility and evidentiary weight, and is free to accept or reject the testimony of
any witness, including a medical witness, in whole or in part.” Williams v. Workers’
18
Comp. Appeal Bd. (USX Corp.-Fairless Works), 862 A.2d 137, 143 (Pa. Cmwlth.
2004). “[A]s fact finder, the WCJ is not required to accept even uncontradicted
testimony.” Id. at 144 (citing Capasso v. Workers’ Comp. Appeal Bd. (RACS
Assocs., Inc.), 851 A.2d 997, 1002 (Pa. Cmwlth. 2004)). Because the WCJ did not
credit Claimant’s expert, Claimant did not satisfy his burden with relation to the
Review Petition. Commercial Credit Claims, 728 A.2d at 906.
To the extent the WCJ’s Decision to discredit Dr. Nguyen was based upon
finding Employer’s expert, Dr. Leatherwood, credible, we must address Claimant’s
argument that Dr. Leatherwood’s testimony was insufficient because he did not
review a 2018 EMG. Because of this, Claimant argues the WCJ’s Decision is not
well reasoned.
Generally, an “expert’s opinion is not rendered incompetent unless it is” based
solely on false or inaccurate information. Casne v. Workers’ Comp. Appeal Bd. (Stat
Couriers, Inc.), 962 A.2d 14, 16 (Pa. Cmwlth. 2008) (citing Newcomer v. Workmen’s
Comp. Appeal Bd. (Ward Trucking Corp.), 692 A.2d 1062 (Pa. 1997)). “The opinion
of a medical expert must be viewed as a whole, and even inaccurate information
will not render the opinion incompetent unless it is dependent on those
inaccuracies.” Id. (emphasis added) (citing Deitrich v. Workmen’s Comp. Appeal
Bd. (Shamokin Cycle Shop), 584 A.2d 372 (Pa. Cmwlth. 1990)). “Where an expert’s
opinion is based on an assumption that is contrary to the established facts of record,
that opinion is [incompetent].” Taylor v. Workers’ Comp. Appeal Bd. (Servistar
Corp.), 883 A.2d 710, 713 (Pa. Cmwlth. 2005).
Furthermore, Section 422(a) of the Workers’ Compensation Act (Act), speaks
to reasoned decisions and provides, in relevant part:
All parties to an adjudicatory proceeding are entitled to a reasoned
decision containing findings of fact and conclusions of law based upon
19
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 [WCJ] shall specify the evidence
upon which the [WCJ] relies and state the reasons for accepting it in
conformity with this section. When faced with conflicting evidence,
the [WCJ] 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 [WCJ] must
identify that evidence and explain adequately the reasons for its
rejection. The adjudication shall provide the basis for meaningful
appellate review.
77 P.S. § 834. What constitutes an adequate explanation for rejecting evidence in
favor of other evidence depends upon whether the testimony was live versus via
deposition. Lewis v. Workers’ Comp. Appeal Bd. (Disposable Prods.), 853 A.2d
424, 428 (Pa. Cmwlth. 2004) (citing Daniels v. Workers’ Comp. Appeal Bd. (Tristate
Transp.), 828 A.2d 1043 (Pa. 2003)). Where, as here, the testimony was provided
via deposition, a WCJ must articulate an “objective basis” for the credibility
determination. Daniels, 828 A.2d at 1053. However, the reasoned decision
requirement does not allow a party to challenge or second-guess a WCJ’s credibility
determinations, because “determining the credibility of witnesses remains the
quintessential function of the WCJ as the finder of fact.” Reed v. Workers’ Comp.
Appeal Bd. (Allied Signal, Inc.), 114 A.3d 464, 470 (Pa. Cmwlth. 2015).
Claimant takes issue with the WCJ’s Decision crediting Dr. Leatherwood’s
testimony. Specifically, Claimant challenges the reliance of the WCJ on Dr.
Leatherwood’s testimony on the basis that Dr. Leatherwood did not review a 2018
EMG, which showed radiculopathy. That Dr. Leatherwood did not review the EMG
does not render his opinion incompetent. Such evidence goes to the weight afforded
his testimony, which, like credibility, is within the discretion of the WCJ. Williams,
20
862 A.2d at 143. Moreover, the WCJ adequately explained the reasons behind the
credibility determinations. (FOF ¶¶ 28-29.) Thus, we discern no error.
In addition, Claimant challenges the WCJ’s finding that the post-injury MRI
was somewhat better than the preinjury MRI. Dr. Nguyen’s testimony supports this
finding.8 On cross-examination, Dr. Nguyen testified that the 2017 MRI report was
better than the earlier MRI. (R.R. at 194a.) Thus, this finding is supported by
substantial evidence.
Because Claimant’s challenge of the WCJ’s denial of the Review Petition is
based upon credibility findings and the weight afforded the evidence, we discern no
error.
IV. CONCLUSION
In summary, the WCJ erred in finding Employer offered Claimant a position
shredding paper as there is not substantial evidence to support this finding.
Accordingly, we reverse the Board’s Order affirming the WCJ’s Decision, which
granted the Suspension Petition. However, we affirm the Board’s Order affirming
the WCJ’s Decision in denying the Review Petition.
_____________________________________
RENÉE COHN JUBELIRER, Judge
8
In his brief, Claimant argues Dr. Leatherwood’s testimony does not support this finding
because he testified that the MRIs showed no difference. (Claimant’s Br. at 18.) However, this
finding is in Finding of Fact 28, which relates to Dr. Nguyen’s testimony, not Dr. Leatherwood’s.
21
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Charles Sealey, :
Petitioner :
:
v. : No. 1524 C.D. 2019
:
Workers’ Compensation Appeal Board :
(Elwyn Inc.), :
Respondent :
ORDER
NOW, September 29, 2020, the Order of the Workers’ Compensation Appeal
Board dated October 2, 2019, is AFFIRMED IN PART and REVERSED IN
PART. The Order is AFFIRMED as it relates to the denial of the Review Petition
filed by Claimant Charles Sealey. The Order is REVERSED to the extent it granted
the Suspension Petition filed by Employer Elwyn Inc.
_____________________________________
RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Charles Sealey, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Elwyn Inc.), : No. 1524 C.D. 2019
Respondent : Submitted: March 13, 2020
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
CONCURRING/DISSENTING OPINION
BY JUDGE COVEY FILED: September 29, 2020
I agree with the Majority’s affirmance of the Workers’ Compensation
Appeal Board’s (Board) October 2, 2019 order affirming the Workers’ Compensation
Judge’s (WCJ) decision denying Charles Sealey’s (Claimant) Review Petition.
However, I respectfully dissent from the Majority’s conclusion that “there is not
substantial evidence to support the offer of a job within Claimant’s restrictions to
Claimant.” Sealey v. Workers’ Comp. Appeal Bd. (Elwyn Inc.) (Pa. Cmwlth. No.
1524 C.D. 2019, filed September 29, 2020, slip op. at 2. Because Elwyn Inc.’s
(Employer) Director of Risk Management Marie Johnson (Johnson) testified that a
position within Claimant’s restrictions was available, i.e., the paper shredder position,
I would affirm the Board’s order affirming the WCJ’s decision granting Employer’s
Suspension Petition.
The law is well established that “an employer can offer evidence of an
available position within a claimant’s restrictions within the context of a claim
petition proceeding[.]” Hill v. Workers’ Comp. Appeal Bd. (Ballard, Spahr, Andrews
& Ingersoll), 824 A.2d 358, 362 (Pa. Cmwlth. 2003). In doing so, “[an e]mployer
must at least provide the [c]laimant or his counsel a general job classification along
with a basic description to give [] [c]laimant something to go on.” Four-Way Constr.
Co. v. Workmen’s Comp. Appeal Bd. (Snyder), 536 A.2d 873, 874-75 (Pa. Cmwlth.
1988). However, “[b]ecause [] [C]laimant had performed the very job[] offered to
him by [] [E]mployer, Four-Way is distinguishable.” Braun Baking Co. v. Workers’
Comp. Appeal Bd. (Stevens), 583 A.2d 860, 863 (Pa. Cmwlth. 1990). “[W]here the
employer is offering claimant a light[-]duty position in which []he has previously
worked, no job position or duties must be specified.” Eidem v. Workers’ Comp.
Appeal Bd. (Gnaden–Huetten Mem’l Hosp.), 746 A.2d 101, 105 (Pa. 2000). “[T]he
referral should be reviewed in a common sense manner in order to determine whether
a suitable position has been made available to the claimant.” Id. at 104.
Here, Johnson testified:
Q. Did [] [C]laimant work a light[-]duty job at all here at
[Employer] at any time after his May 22, 2017 injury?
A. Yes.
Q. What was the light[-]duty job that he worked here at
[Employer]?
A. He was doing clerical support in the Risk Management
Department.
Q. For what period of time did he do that?
A. I think he did it for three different -- one day at a time.
He worked one day.
Q. My records reflect that he worked on June 6 and then
again on June 12, 2017.
A. Yes.
AEC - 2
Q. What are the physical demands and tasks that he did in
that light[-]duty job in the Risk Management Department?
A. His job was just to shred paper. We had a backup of
documents that needed to be shredded. And I clearly
remember it because where he was sitting was across from
my office and we told him he could bring his back
support and all he had to do was sit there and feed
papers into the shredder. He could do it with his right
hand, left hand, he could sit, he could stand and he
could take breaks.
Q. Whose choice was it that he worked only one day and
not more?
A. That was his. I have the work available.
Q. Is the work still available?
A. Yes.
....
Q. The job in the Risk Management Department shredding
papers, could that be done sitting or standing?
A. Yes.
Q. Does the person have to lift anything more than a sheet
of paper at a time?
A. No.
Reproduced Record (R.R.) at 150-152 (emphasis added).
Reviewing this testimony “in a common sense manner in order to
determine whether a suitable position ha[d] been made available to [] [C]laimant[,]”
Eidem, 746 A.2d at 104, supports the conclusion that Johnson’s testimony was
substantial “evidence of an available position within [] [C]laimant’s restrictions[.]”
Hill, 824 A.2d at 362.
The Majority maintains that because Johnson did not mention the paper
shredder job during cross-examination or in the requested follow-up letter, that the
AEC - 3
paper shredder job was not offered to Claimant. However, during Johnson’s
deposition, Claimant’s Counsel specifically restricted the contents of the cross-
examination and the requested follow-up letter to the training instructor and
production coordinator jobs.
In response to Employer’s request to have Claimant’s Counsel
“communicate the availability of these positions” to Claimant, R.R. at 145,
Claimant’s Counsel expressly stated:
[B]ecause I have never received a letter, nor has my client
concerning the jobs. [sic] I don’t have a job description. I
would be happy to show him the transcript but I think the
best way to handle it is if [Employer] actually wants to offer
these jobs to [] [C]laimant to send a formal letter like they
[sic] have in the past with a copy of a job description. That
way [Claimant] can review it as can his doctor [sic] I think
is really the best way to handle it is because it would be
hard for me just by taking notes over the phone to try to
communicate these to him.
R.R. at 145. Claimant’s Counsel made the letter request before Johnson’s testimony
concerning the paper shredder position, and thus, his request was clearly referring to
the training instructor and production coordinator jobs.
Further, Claimant’s Counsel’s first question to Johnson on cross-
examination again restricted the examination to the training instructor and production
coordinator jobs. Particularly, cross-examination began: “I do have a few questions
for you on cross[-]examination. And unfortunately, I’m going to have to spend
most of my time about jobs that you discussed for the first time today, okay? A.
Okay.” R.R. at 154 (emphasis added). Claimant’s Counsel concluded his
questioning regarding the training instructor and production coordinator jobs: “Q.
Now I feel like I have enough information based on what I have looked at to
communicate these offers directly to [Claimant]. Was [sic] there any other jobs
AEC - 4
that you wanted to offer [Claimant] for the first time today? A. No, not at this
time.” R.R. at 164 (emphasis added).
Accordingly, for all of the above-stated reasons, the Dissent would
affirm the Board’s order affirming the WCJ’s granting of Employer’s Suspension
Petition.
__________________________
ANNE E. COVEY, Judge
AEC - 5