R. Heminger v. WCAB (Stroehmann Bakeries, Inc.) (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Robert Heminger, Petitioner v. Workers' Compensation Appeal Board (Stroehmann Bakeries, Inc.), Respondent BEFORE: : : : : : : : : No. 1615 C.D. 2007 Submitted: December 7, 2007 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McGINLEY FILED: January 16, 2008 Robert Heminger (Claimant) petitions for review from the order of the Workers Compensation Appeal Board (Board) which affirmed the Workers Compensation Judge s (WCJ) grant of Stroehmann Bakeries, Inc. s (Employer) modification petition. Claimant worked for Employer for twenty-one years as a driver/salesman. On December 12, 2002, while working, Claimant slipped on ice and injured his right shoulder. Employer issued a notice of compensation payable for a right shoulder strain. Pursuant to the notice of compensation payable, Claimant received weekly compensation in the amount of $583.28 based on an average weekly wage of $874.93. On September 6, 2005, Employer petitioned to modify/suspend benefits on the basis that work was generally available. Claimant denied all allegations. Employer presented the deposition testimony of Thomas K. Ritter (Ritter), case manager for Intracorp, a disability management firm. Ritter, a certified rehabilitation counselor, completed a labor market survey/earning power capacity evaluation on August 12, 2005, for the area of New Castle, Pennsylvania. Ritter based the labor market survey on Claimant s vocational history, his physical restrictions as set forth by Stephen J. Thomas, M.D. (Dr. Thomas), and a determination of current job availability. Deposition of Thomas K. Ritter, January 17, 2006, (Ritter Deposition) at 11-12; Reproduced Record (R.R.) at 41a-42a. Ritter reported that Claimant was a 59-year-old male who resides in New Castle. Labor Market Survey Report, August 12, 2005, (Report) at 2; R.R. at 140a. Ritter found five available positions in the New Castle area which were both physically and vocationally appropriate for Claimant. Ritter Deposition at 26-27; R.R. at 56a57a. The first position was as a recruiter for Infocision. The job duties consisted of helping to recruit volunteers for nationally recognized non-profit organizations for telephone survey positions. The job was full-time at $7 per hour with no experience and $9 per hour salary with experience and it would be discussed further at interview. Ritter Deposition at 28; R.R. at 58a. The job was sedentary. The second position was as a manager trainee/assistant manager at McDonald s in Mercer County. The job was full-time starting at $9 per hour. The job would be light duty. The third position was in teleservices with Reese Teleservices. This was a telemarketing job. The pay was $8 per hour plus bonuses up to $150 per 2 day. The job was sedentary. The fourth position was as an assistant manager for Red Apple, a convenience store/gas station. The job was full-time at $10 - $12 per hour. The position was considered light duty. The fifth and last position was in auto sales at Ellwood City Dodge. This was a full-time position with first year earning potential of $42,000 to $90,000. The job was sedentary to light duty. Ritter Deposition at 28-33; R.R. at 58a-63a. Ritter prepared a job analysis for the Ellwood City Dodge, Red Apple, and Reese Teleservices positions. Ritter Deposition at 33; R.R. at 63a. Ritter believed that Claimant could perform these jobs in part because he once co-owned a restaurant known as B&B Charcoal Grill (B&B) which served hot dogs and hamburgers, which Ritter believed was financially successful for three years until Claimant sold his interest to his coowner. Ritter Deposition at 43; R.R. at 73a. Employer also presented the deposition testimony of Dr. Thomas, a board-certified orthopedic surgeon. Dr. Thomas examined Claimant on April 28, 2004, and on September 22, 2004, took a history and reviewed medical records. Dr. Thomas reported that as a result of his work-related injury, Claimant underwent right rotator cuff surgery and a debridement of a slap lesion in January 2003, and then a right shoulder manipulation debridement in July of 2003. Deposition of Stephen Thomas, M.D., March 1, 2006, (Dr. Thomas Deposition) at 9.1 After the initial examination, Dr. Thomas diagnosed Claimant with continued pain and weakness status post rotator cuff repair and manipulation. Dr. Thomas Deposition at 12. Dr. Thomas opined after the April 28, 2004, examination that Claimant was capable of light duty work with a lifting and carrying restriction of 1 Dr. Thomas s Deposition is not included in the Reproduced Record. 3 twenty pounds. Dr. Thomas Deposition at 13. Dr. Thomas essentially reached the same conclusions after the September 22, 2004, examination. Dr. Thomas Deposition at 16. Claimant could lift up to fifty pounds infrequently. Dr. Thomas Deposition at 17. Claimant could perform the assistant manager, teleservices, and auto sales positions. Dr. Thomas Deposition at 19.2 Claimant testified and stated his job consisted of loading and unloading the bread truck, delivering bread, sorting stale bread, and settling up accounts. When a new store or restaurant opened in his area, he would stop to see if he could deliver bread to them. Notes of Testimony, October 26, 2005, (N.T.) at 12-13; R.R. at 17a-18a. He previously did the same type of work for Pepperidge Farms and Henderson Meats. N.T. at 13-14; R.R. at 18a-19a. Because of the work-related injury, he could no longer play ball and other sports, could not lift or extend or reach with any kind of weight, and had to buy power tools for his yard work. N.T. at 15-16; R.R. at 20a-21a. Claimant testified that he lent his son less than half of the amount needed to purchase Tastee Tailgater. He helps his son as a stock boy for Tastee Tailgater at various events where he works for less than an hour per day for about seventeen days in the summer. N.T. at 17-20; R.R. at 22a25a. Previously, when Claimant co-owned B&B with his brother, he cooked but did no bookkeeping. He sold his interest in B&B because [i]t wasn t making enough money for two families and he had more into it than I did. Notes of Testimony, July 24, 2006, at 11; R.R. at 257a. 2 Employer also presented the deposition testimony of three private investigators who viewed Claimant working for Tastee Tailgater, a moveable food concession stand, which Claimant s son operated at various events in the summer months. 4 Claimant presented the deposition testimony of Celia P. Evans (Evans), a vocational counselor and evaluator and a certified disability management specialist. Evans performed a vocational analysis with respect to Claimant. Evans interviewed Claimant, reviewed medical records, and reviewed the report of Ritter. Evans use[s] a method known as the vocational diagnosis and assessment of residual employability. That identifies the highest level of function that an individual has demonstrated throughout their relevant work history. Its ultimate result is to create a residual functional capacity profile of the individual by overlaying on their vocational profile or their highest levels and any limiting factors, in this case the physical factors that affect the function of Mr. Robert Heminger. That information, that profile was then used as a comparative bar for the occupational areas set forth by Mr. Ritter. Deposition of Celia P. Evans, March 30, 2006, (Evans Deposition) at 18-19; R.R. at 168a-169a. Evans determined that Claimant had a specific vocational preparation level of semi-skilled work which required three to six months to learn the techniques, acquire the information, and develop the facility needed for average performance in a particular job. Evans Deposition at 27; R.R. at 177a. Evans also determined that Claimant demonstrated the general educational development level of four for reasoning, three for math, and four for language on a scale of one to six. Evans Deposition at 28; R.R. at 178a. Based on her evaluation of Claimant s vocational skills, Evans determined that none of the five jobs identified by Ritter were appropriate to identify earning capacity for Claimant. Evans Deposition at 33; R.R. at 183a. Evans noted that Claimant was unsuited for the McDonald s job, for among other reasons, [h]is ability to adjust to new work at age sixty has to be considered as he is falling into the category of close to retirement age. . . . Evans 5 Deposition at 39; R.R. at 189a. On cross-examination, Evans stated that Claimant s age was a negative factor in each of the five positions. Evans Deposition at 60; R.R. at 210a. The WCJ granted the modification petition and reduced Claimant s weekly compensation to $316.62 on and after August 12, 2005, based on Claimant having an earning power assessment of $400.00 per week. The WCJ accepted as credible Dr. Thomas as well as the private investigators. The WCJ rejected Claimant s testimony that his son was the sole owner of Tastee Tailgater as Employer established that the business was in both Claimant s name and his son s name. The WCJ made the following relevant finding of fact: 19. . . . Furthermore, I specifically accept as credible, convincing and persuasive the deposition testimony of Thomas K. Ritter and reject any contrary or conflicting deposition testimony of Cecilia [sic] P. Evans who did not contact any of the five potential employers identified by Mr. Ritter as to whether they would have hired the claimant based on the claimant s physical restrictions, age, intellectual capacity, education, prior work experience and place of residence. Furthermore, I did not find the testimony of Cecilia [sic] Evans to be credible in that she testified that claimant could not perform the fast food restaurant manager position as the claimant had owned his own restaurant for a period of time with his brother-in-law which was successful in which the claimant then sold his share to his brother-in-law as the restaurant was not making enough money for two families as testified to by the claimant at the July 24, 2006 hearing and that the claimant was in fact helping operate the food concession trailer of Tastee Tailgater in August of 2005. I specifically accept the testimony of Thomas Ritter that the specific jobs of infusion [sic] recruiter paying $7.00 an hour for 40 hours a week or $280.00 per week; McDonald s management 6 trainees/assistant manager [sic] paying $9.00 an hour for 40 hours a week or $360.00 a week; Reese Teleservices paying $8.00 an hour for 40 hours a week or $320.00 a week; and Red Apple assistant manager paying $10.00 to $12.00 an hour for which I used $10.00 an hour for 40 hours a week or $400.00 a week to establish an appropriate earning power assessment of the claimant of $400.00 a week which based upon the preinjury average weekly wage of $874.93 results in a wage loss of $474.93 for a partial disability compensation rate of $316.62 a week as of August 12, 2005. However, I reject any testimony of Thomas Ritter that the Ellwood City Dodge Auto Sales position should be considered in the earning power assessment of the claimant as the witness did not know if the position was salary minus draw and admitted that the earning potential he testified to of $42,000.00 to $90,000.00 a year was speculative. Thus, the defendant [Employer] is entitled to a modification of compensation benefits as of August 12, 2005 to $316.62 a week. WCJ s Decision, November 17, 2006, Finding of Fact No. 19 at 8-9; R.R. at 270a271a. Claimant appealed to the Board which affirmed. Claimant contends3 that the Board erred when it affirmed the WCJ s grant of the modification petition because Ritter failed to take into consideration 3 This Court s review is limited to a determination of whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence, or whether constitutional rights were violated. Vinglinsky v. Workmen s Compensation Appeal Board (Penn Installation), 589 A.2d 291 (Pa. Cmwlth. 1991). 7 Claimant s age when he conducted the labor market survey and only referenced his age as an identifier. 4 Under Section 306(b)(1) of the Workers Compensation Act (Act),5 77 P.S. ยง512(1), a claimant on partial disability is entitled to the sixty-six and twothirds percent of the difference between the time of injury wages of the employee and the employee s earning power. The term Earning Power is defined in Section 306(b)(2) of the Act, 77 P.S. 512(2), as follows: Earning Power shall be determined by the work the employe is capable of performing and shall be based upon expert opinion evidence which includes job listings with agencies of the department, private job placement agencies and advertisements in the usual employment area. Disability partial in character shall apply if the employe is able to perform his previous work or can, considering the employe s residual productive skill, education, age and work experience, engage in any other kind of substantial gainful employment which exists in the usual employment area in which the employe lives within this Commonwealth. . . . In Allied Products and Services v. Workers Compensation Appeal Board (Click), 823 A.2d 284, 287 (Pa. Cmwlth. 2003), this Court explained the burden of an employer seeking a modification: In order to prevail in seeking a modification of benefits, an employer must either: (i) offer to a claimant a specific job that is available, which the claimant is capable of 4 In his brief, Claimant references the term identifier to connote that Ritter identified Claimant as a 59 year-old male in the labor market survey but did not take into account Claimant s age when Ritter evaluated Claimant s fitness for the available positions. 5 Act of June 2, 1915, P.L. 736, as amended. 8 performing, . . . or (ii) establish earning power through expert opinion evidence including the job listings with employment agencies, agencies of the Department of Labor and Industry, and advertisements in a claimant s usual area of employment. . . . . . . [An] employer must still convince the fact-finder that positions within the injured worker s residual capacity are actually available. Claimant asserts that Employer did not meet its burden because Ritter did not take Claimant s age into account when he performed the labor market survey. However, Ritter s report stated under the heading of Medical Assessment that Claimant was a 59 year old male who resides in New Castle, Pennsylvania. Report at 2; R.R. at 140a. The first page of the report also states that Claimant was 59. Report at 1; R.R. at 139a. Ritter testified that he made the medical assessment based upon the medical information supplied to him. Ritter Deposition at 15; R.R. at 45a. Ritter acknowledged that Claimant was fifty-nine years old. Ritter Deposition at 17; R.R. at 47a. There is nothing in the record to support Claimant s assertion that Ritter did not consider Claimant s age. Claimant s vocational expert, Evans, testified that Claimant s age would prevent him from performing any of the jobs selected by Ritter. However, the WCJ did not find Evans credible. In workers compensation cases, the WCJ is the ultimate finder of fact, has exclusive province over questions of credibility and evidentiary weight, and is free to accept or reject the testimony of any witness, in whole or in part. General Electric Co. v. Workmen s Compensation Appeal Board (Valsamaki), 593 9 A.2d 921 (Pa. Cmwlth.), petition for allowance of appeal denied, 529 Pa. 626, 600 A.2d 541 (1991). This Court will not disturb a WCJ s findings when those findings are supported by substantial evidence. Nevin Trucking v. Workmen s Compensation Appeal Board (Murdock), 667 A.2d 262 (Pa. Cmwlth. 1995). The WCJ credited Ritter. This Court will not reweigh a credibility determination. Accordingly, this Court affirms. ____________________________ BERNARD L. McGINLEY, Judge 10 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Robert Heminger, Petitioner v. Workers' Compensation Appeal Board (Stroehmann Bakeries, Inc.), Respondent : : : : : : : : No. 1615 C.D. 2007 ORDER AND NOW, this 16th day of January, 2008, the order of the Workers Compensation Appeal Board in the above-captioned matter is affirmed. ____________________________ BERNARD L. McGINLEY, Judge
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