M. Kogut v. WCAB (Mountain View Manor) (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Michelle Kogut, : Petitioner : : v. : : Workers Compensation Appeal Board : (Mountain View Manor), : Respondent : BEFORE: No. 189 C.D. 2008 Submitted: April 25, 2008 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE FLAHERTY FILED: July 3, 2008 Michele Kogut (Claimant) petitions for review from an order of the Workers Compensation Appeal Board (Board) that affirmed the decision of a Workers Compensation Judge (WCJ) that granted a Suspension Petition filed by Mountain View Manor (Employer). We affirm. Claimant filed a Claim Petition alleging she sustained injuries in the course and scope of her employment on June 15, 2004. Specifically, she alleged she sustained bilateral carpal tunnel and right upper extremity damage. Claimant attended an independent medical examination with Thomas DiBenedetto, M.D. on October 21, 2004 at which time Dr. DiBenedetto concluded that the right shoulder problem was a functionally impairing injury. On December 16, 2004, WCJ Baker approved a Stipulation of Facts wherein the parties agreed that Claimant was off work entirely from June 15, 2004 through November 1, 2004 in connection with the right shoulder injury that was acknowledged by Employer. The stipulation further indicated that Claimant returned to work in connection with the right shoulder injury on modified duty. Employer agreed to pay Claimant total disability from June 15, 2004 through November 1, 2004. The stipulation further indicated that Employer did not accept Claimant s carpal tunnel syndrome as work-related. On April 21, 2005, Claimant filed a new Claim Petition alleging that she sustained bilateral carpal tunnel syndrome as a result of her employment as of June 14, 2004. Employer filed a Suspension Petition on January 25, 2006 alleging that as of January 24, 2006, Claimant failed to pursue a job in good faith where she would have earned a salary equal to or greater than her pre-injury wage.1 1 In Kachinski v. Workmen s Compensation Appeal Board (Vepco Constr. Co.), 516 Pa. 240, 532 A.2d 374 (1987), the Supreme Court established the procedure to be followed when attempting to return an injured employee to the workforce. Despite certain amendments made to the Pennsylvania Workers Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4; 2501-2708, dealing with earning power assessments, Kachinski and its progeny still remain applicable in situations where, as here, an employer seeks a modification or suspension of benefits based on an offer of a specific job with the employer. South Hills Health Sys. v. Workers Compensation Appeal Board (Kiefer), 806 A.2d 962 (Pa. Cmwlth. 2002). See also Allied Prods. and Servs. v. Workers Compensation Appeal Board (Click), 823 A.2d 284 (Pa. Cmwlth. 2003). The Supreme Court, in Kachinski, delineated the parties respective burdens as follows: 1. The employer who seeks to modify a claimant s benefits on the basis that he has recovered some or all of his ability must first produce medical evidence of a change in condition. 2. The employer must then produce evidence of a referral (or (Footnote continued on next page ¦) 2 In a decision circulated May 10, 2007, WCJ Dietrich determined that Claimant failed to meet her burden of proving that she sustained bilateral carpal tunnel syndrome as a result of her employment. Consequently, he denied Claimant s Claim Petition. The WCJ further found that Employer established that it offered Claimant an available job that she was physically capable of performing and that she failed to pursue the position in good faith. As such, the WCJ granted Employer s Suspension Petition and suspended Claimant s benefits as of January 17, 2006. The Board affirmed this decision in an order dated January 9, 2008. This appeal followed. Claimant argues on appeal that Employer failed to meet its burden under the second prong of the Kachinski standard as the job offer letter(s) failed to provide an adequate description of the job being offered. She asserts that Employer sent her two letters asking her to return to work and neither letter contained a description of the job being offered to her. She adds that she was not (continued ¦) referrals) to a then open job (or jobs), which fits in the occupational category for which the claimant has been given medical clearance, e.g., light work, sedentary work, etc. 3. The claimant must then demonstrate that he has in good faith followed through on the job referral(s). 4. If the referral fails to result in a job then claimant s benefits should continue. Kachinski, 516 Pa. at 252, 374 A.2d at 380. 3 aware of how the offered job was tailored to her restrictions. Because of this failure, Claimant alleges that the burden never shifted to her to establish she pursued the offered job in good faith and that the WCJ erred in granting Employer s Suspension Petition. Prior to addressing this argument, we must address Employer s contention that Claimant waived this issue because she failed to raise it with any degree of specificity in the Notice of Appeal filed with the Board. Section 423 of the Act, 77 P.S. §853, provides that an appeal may be taken within twenty days of the WCJ s Decision. Section 111.11(a) of the Special Rules of Administrative Practice and Procedure Before the Workers Compensation Appeal Board provides that: (a) An appeal or cross appeal shall be filed with the Board on a form provided by the Board or on a form containing substantially the following information: ... (2) A statement of the particular grounds upon which the appeal is based, including reference to the specific findings of fact which are challenged and the errors of the law which are alleged. General allegations which do not specifically bring to the attention of the Board the issues decided are insufficient... 34 Pa. Code §111.11(a) When a party fails to raise an issue with the requisite specificity in the appeal documents before the Board, that party fails to preserve the issue. McGaffin v. Workers Compensation Appeal Board (Manatron, Inc.), 903 A.2d 4 94, 101 (Pa. Cmwlth. 2006); see also Jonathan Sheppard Stables v. Workers Compensation Appeal Board (Wyatt), 739 A.2d 1084 (Pa. Cmwlth. 1999). Any issue must be preserved at each stage of the proceedings or it is deemed waived. Nabisco Brands, Inc. v. Workers Compensation Appeal Board (Tropello), 763 A.2d 555 (Pa. Cmwlth. 2000). Claimant s Notice of Appeal filed with the Board reads as follows: I hereby appeal from the decision of Judge Wayne L. Dietrich and allege the following findings of fact are in error and are not supported by substantial evidence, or contain other errors as specifically set forth below. A copy of the Judge s decision is attached. Finding of Fact Nos.: 3, 4, 6, 7, 8, 9, 10, 11, 12 Conclusions of Law Nos.: 2, 3, 4, 5 (sic) 6 I hereby appeal from the decision of Judge Wayne L. Dietrich and specify the following errors of law committed by said Judge, and the reasons why the decision does not conform to the provisions of the [Act] or the Occupational Disease Act. A copy of the Judge s decision is attached. 1) The WCJ erred in his analysis of the expert medical testimony of Dr. Kline. 2) The WCJ Decision is internally inconsistent and is not supported by substantial evidence. 3) The WCJ erred in suspending compensation benefits when Employer failed to show good faith in establishing available work consistent with the Claimant s medical restrictions. 5 4) The WCJ erred in imputing bad faith to the Claimant when Claimant telephoned Employer as directed and Employer never responded or offered a job. (Emphasis in original). Claimant properly preserved the issues of whether the letters mailed to her properly apprised her as to whether the job offered was within her physical capabilities. The WCJ s Findings of Fact Nos. 6, 7, and 8 discuss the return to work letters dated January 17, 2006 and January 30, 2006 respectfully. Finding of Fact No. 8 references Claimant s testimony that the letters did not contain any description of the job being offered. Furthermore, Finding of Fact No. 8 summarizes the testimony of C. Lynn Snyder, Employer s workers compensation specialist, to the extent that she did not include copies of the job descriptions in the return to work letters. Claimant alleged in her appeal to the Board that these findings that reference the contents of the return to work letters are not supported by substantial, competent evidence. Moreover, Claimant alleged in her Notice of Appeal that the WCJ erred in suspending her benefits where Employer failed to establish available work consistent with the Claimant s medical restrictions. While it may be argued that Claimant s allegation addresses whether the offered job itself did, in fact, fit within Claimant s restrictions, it may also reasonably be read that Employer failed to give Claimant sufficient information as to whether the offered job was within her physical capabilities. In either case, this argument specifically challenges whether Employer satisfied the second prong of the Kachinski standard. As indicated above, the second prong of Kachinski requires the employer to produce evidence of a referral (or referrals) to a then open job (or jobs), which fits in the 6 occupational category for which the claimant has been given medical clearance, e.g., light work, sedentary work, etc. Given the fact that Claimant asserted that the findings of fact that dealt with the contents of the return to work letters were not supported by substantial, competent evidence, that she challenged whether Employer satisfied the second prong of Kachinski, and that her third allegation of error can reasonably be read to specifically attack the contents of the January 2006 job letters, we cannot agree with Employer that Claimant failed to properly raise this issue of whether the referral letters sufficiently apprised her of the offered job s requirements before the Board. Consequently, it was not waived below and we may address Claimant s argument before us. Tropello. Turning to the merits of Claimant s appeal, we acknowledge that in determining whether a referral letter provides sufficient information concerning an available job, the appellate courts have developed two lines of reasoning. Eidem v. Workers Compensation Appeal Board (Gnaden-Huetten Mem l Hosp.), 560 Pa. 439, 746 A.2d 101 (2000). Where the employer is providing referrals to alternative positions, i.e.; jobs the claimant has not been previously employed in, the employer, in its referral letter, must provide information related to the job duties and classification so that the claimant can make an informed decision regarding whether the position offered is within his capabilities. Id., 560 Pa. at 445, 746 A.2d at 104. Indeed, while there is no requirement that the employer specify every aspect of the job before the claimant has the responsibility to follow up on the referral, it must at least provide the claimant with a general job 7 classification along with a basic description to give the claimant something to go on. Four Way Constr. Co. v. Workmen s Compensation Appeal Board (Snyder), 536 A.2d 873 (Pa. Cmwlth. 1988); see also School Dist. of Phila. v. Workmen s Compensation Appeal Board (Stutts), 603 A.2d 682 (Pa. Cmwlth. 1992). On the other hand, where the employer is offering a claimant a modified duty position in which he has previously worked, no job position or duties must be specified. See McConway & Torley Corp. v. Workmen s Compensation Appeal Board (Campbell), 677 A.2d 381 (Pa. Cmwlth. 1996)(holding that a letter advising that the claimant was released to return to his former light duty job was sufficient to meet the employer s burden even though he previously worked two different light duty jobs but was only cleared for one); Carbaugh v. Workmen s Compensation Appeal Board (T.B. Wood s Sons), 639 A.2d 853 (Pa. Cmwlth. 1994)(holding that when the claimant previously worked at a position that accommodated his disability, he should have reasonably assumed that the same position was being offered when he received a letter requesting him to return to work); Braun Baking Co. v. Workmen s Compensation Appeal Board (Stevens), 583 A.2d 860 (Pa. Cmwlth. 1990)(holding that when a claimant previously worked light duty jobs discussed in the employer s letters requesting claimant return to work, his benefits were properly suspended when he failed to attempt them despite receiving medical clearance from his treating physician). These cases reason that the employer need not specify a job position or duties since the claimant can reasonably assume that he is being offered the same position that he has previously worked, and thus, is familiar with the 8 requirements of that position. Eidem, 560 Pa. at 445, 746 A.2d at 105. Moreover, the Court, in Eidem stated: Although these two lines of cases appear to be divergent, it is clear that they require the employer to provide essentially the same information regarding a job position in order for it to be considered actually available. First, the claimant must be reasonably apprised of the job duties and classification, either through prior work experience or through expressly delineating these factors in the letter. Second, the claimant must be given sufficient information in order to determine whether the available position is within her physical restrictions. Only then has employer met its burden of proof pursuant to the second prong of Kachinski since claimant has been provided with sufficient information to make an informed decision regarding whether the available position is within her capabilities. Id., 560 Pa. 445-6, 746 A.2d at 105. In the instant matter, Employer presented the testimony of Dr. DiBenedetto, board certified in orthopedic surgery, who conducted a second independent medical examination of Claimant on January 5, 2006. He opined that Claimant had a re-tear of her right rotator cuff in 2004. Certified Record (C.R.) at 177. He felt that she was at maximum medical improvement following surgery. Id. According to Dr. DiBenedetto, Claimant was capable of working in a sedentary, light, or medium duty capacity. He restricted Claimant from reaching above the shoulder with her right arm. Id. at 178. Dr. DiBenedetto opined Claimant could return to her pre-injury job with Employer so long as she used her left hand in the event she needed to do any overhead reaching. Id. at 179. 9 Employer submitted a letter mailed to Claimant drafted by C. Lynn Snyder, Employer s workers compensation specialist, dated January 17, 2006 that reads as follows: Our Workers Compensation Insurance Co. has recently informed us that they have received formal documentation of your release to return to work with restrictions by Dr. Thomas DiBenedetto. Mountain View Manor welcomes you back to your previous position with your assigned restrictions and limitations. Please contact Chad Breach MVM Administrator ¦ to receive your updated schedule and start date. If I can be of any help to you in this matter or in the future please do not hesitate to contact me... C.R. at 6. The second letter, also written by C. Lynn Snyder, dated January 30, 2006 reads: On January 17th 2006 I sent out a letter to inform you that you have been released to return to work with restrictions by Dr. Thomas DiBenedetto. As of this time we have heard nothing back from you. The county is trying to make your transition back to work timely and an easy one for you, the employee ¦ If there is (sic) any questions regarding your wages and hours please call out to Mountain View Manor and they will assist you in any way... You may ask to speak with Chad Breach MVM Administrator, he is aware you will be calling and he will inform you of any details needed to return to work. 10 If I can be of any help to you in this matter, please do not hesitate to call my office... C.R. at 7. Employer further presented the testimony of Ms. Snyder who, as stated, mailed Claimant two letters informing her that she was requested to come back to work. C.R. at 47. Ms. Snyder testified that the letters referenced that Claimant was asked to return to her previous position of dietary aid. Id. at 50. She agreed there was no job description contained in the January 17, 2006 letter or any mention of any accommodations that would be made to adhere to her restrictions.2 Id. at 51. According to Ms. Snyder, if Claimant had any questions, she could have contacted Mr. Breach. Id. Ms. Snyder agreed that she received one call from Claimant who left a message on voicemail. Id. at 48. Ms. Snyder stated that the voicemail Claimant left indicated that Claimant was told by her attorney not to return to work. Id. She did not return the call as she was told to let the matter be resolved between the parties attorneys. Id. Claimant testified that her job required her to work on the line, prepare food, and clean dishes. C.R. at 75. She agreed that four or five people would work in the kitchen and that they were assigned different jobs. Id. at 79. Specific tasks included placing trays on the line, filling trays with plates, bowls, utensils, and drinks, pulling carts, dispensing of refuse, and rinsing dishes. Id. at 80-81. Claimant acknowledged that she received both the January 17, 2007 and 2 The parties agreed that the WCJ could read the contents of the January 30, 2006 letter himself instead of hearing testimony regarding its contents. C.R. at 52. 11 January 30, 2007 letters. Id. at 73. She explained that neither of the letters contained job descriptions. Id. at 74. She agreed that the letters requested her to return to her previous position but stated that she was unaware of how her job would be modified. Id. Claimant conceded, however, that she knew she was released by Dr. DiBenedetto to medium duty work. Id. Claimant testified that she called Ms. Snyder after she received the second letter. Id. at 30. According to Claimant, she called three or four times but never received a call back. Id. at 31. Claimant further presented the testimony of John A. Kline, M.D., board certified in physical medicine and rehabilitation, who opined that she is limited to sedentary work and should avoid repetitive activities with the right upper limb. C.R. at 212. He did not believe Claimant was able to perform the duties of a dietary aide. Id. The WCJ credited Ms. Snyder s testimony as well as that of Dr. DiBenedetto. He further credited Claimant s testimony but for her comments that she made multiple phone calls to Ms. Snyder as opposed to just one. The WCJ rejected the testimony of Dr. Kline. The WCJ is the final arbiter of witness credibility and the weight to be accorded evidence and may accept or reject the testimony of any witness in whole or in part. Coyne v. Workers Compensation Appeal Board (Villanova Univ.), 942 A.2d 939 (Pa. Cmwlth. 2008). Because Employer asked Claimant to return to her pre-injury job modified to conform with the restriction imposed by Dr. DiBenedetto as opposed to referring her to available job that she has not performed previously, Employer 12 did not have to provide as much detail concerning the job s duties and classification as was required in Four Way and Stutts. Nonetheless, we note that this case is distinguishable from Stevens, Carbaugh, and Campbell because whereas the claimants in those cases previously worked in the modified position to which they were referred, it is unclear that Claimant ever worked her pre-injury position in a modified capacity.3 Nonetheless, a review of Eidem is instructive. The claimant, in Eidem, worked as a nurse s aid until injuring her shoulder and elbow in the course of performing her duties. She later underwent an independent medical examination after which she was cleared for light duty. The employer sent the claimant a letter that indicated that a position was available, enumerated the physical restrictions placed upon her physical exertion, specified the number of hours she was expected to work, and directed the claimant to contact the director of nursing to arrange her work schedule.4 The claimant did not respond to this letter. 3 We acknowledge that in the Stipulation of Facts approved by WCJ Baker on December 16, 2004, the parties agreed that Claimant returned to work at modified duty. The stipulation is silent, however, as to whether Claimant returned to work at her pre-injury job modified to fit within her restrictions or some other job that was within her physical capabilities. Furthermore, Claimant testified that she did not return to work for her Employer following her June 14, 2004 injury. C.R. at 15. Conversely, Dr. DiBendetto, in reciting Claimant s history, suggested that Claimant did work light duty from November of 2004 through March of 2005. C.R. at 172. Ultimately, it is unclear whether Claimant did work in her pre-injury job with modifications previously warranting automatic application of Stevens, Carbaugh, and Campbell. 4 In terms of the physical restrictions, the letter advised, inter alia, of a twenty pound weight restriction, that the claimant could stand/walk one to four hours per day and sit three to five hours per day. Eidem, 560 Pa. at 443, 746 A.2d at 103. The letter further advised that the claimant should wear a wrist splint. Id. 13 The employer filed a modification petition that was granted by the WCJ. The Board affirmed. We reversed on the basis that the referral letter did not set forth a description of the job that was offered. The Supreme Court reversed our order and reinstated the order of the Board modifying the claimant s benefits. In accepting the employer s argument that the referral letter sent to the claimant set forth the necessary information to demonstrate available work as required under the second prong of Kachinski, the Supreme Court explained that the only type of work that the claimant had performed for the employer was as a nurse s aide. Eidem, 560 Pa. at 446, 746 A.2d at 105. In addition, it noted that the referral letter directed that claimant contact the director of nursing to arrange her schedule. Id. Based upon these facts, the Supreme Court stated claimant could reasonably assume that she was being offered her prior position as a nurse s aide. Id. The Court indicated the claimant was fully apprised of the job requirements related to that position as she had previously worked in that position. Id. As the referral letter specifically enumerated the physical restrictions that would be placed on claimant s duties, including the statement that claimant would be limited to light work, and the limitations were consistent with the medical opinion of the employer s medical expert, the Court held that the letter provided sufficient information for the claimant to make an informed decision regarding whether the job was commensurate with her physical limitations. Id. Although not cited in Eidem, this Court s decision in Martinez v. Workmen s Compensation Appeal Board (Container Corp. of Am.), 676 A.2d 751 (Pa. Cmwlth. 1996), offers further guidance and is consistent with the Supreme 14 Court s decision. In Martinez, the claimant worked as a feedwater treater for the employer when he sustained work-related right hip and low back injuries. The employer filed a suspension petition alleging that the claimant was able to return to work at his pre-injury wage. The WCJ granted this petition and the Board affirmed. On appeal to this Court, the claimant alleged that the Board erred in affirming the WCJ s conclusion that modified work was available to him because the employer failed to advise him of the modified job s duties and physical requirements. In disposing of this issue, we cited the contents of the employer s referral letter as follows: We have received the report of Dr. Paul Liebert who has authorized your return to work in line with the attached medical restrictions. We have been able to modify your regular job of Feedwater Treater to accommodate these restrictions and this job at the hourly rate of $ 12.20 is available for your return to work on April 1, 1992. Id. at 755. In affirming, we distinguished this matter from Stutts and Four-Way, noting the jobs to which the claimants were referred therein were not the claimants pre-injury jobs but, rather, those in other occupational areas that their employers determined were within their physical, vocational and educational limitations. Martinez, 676 A.2d at 755. We explained that the letters notifying the claimants in those cases were deemed insufficient because they did not contain 15 adequate information about the offered jobs duties and physical requirements to enable the claimants to determine whether the jobs were within their capabilities. Id. We found, however, that the job the employer referred the claimant to was his own job, modified to bring it within his physical restrictions as established by the employer s medical expert and laid out in the attachment to the letter. Id. We added that although the letter did not specify the job category into which the claimant s regular job would fall after its modification, i.e. sedentary, light duty, etc., the claimant was aware of the duties of the job and that the employer had offered to modify those duties to comply with his physical restrictions. Id. Therefore, we determined that the employer s letter constituted sufficient notice. Id. These two cases indicate that because Claimant was informed that her pre-injury job was being offered to her and that it would be modified to fit within the restrictions of Dr. DiBenedetto, she was reasonably apprised of the job duties and classification, and that the available position would be tailored to her physical restrictions. Consequently, consistent with Eidem and Martinez, Employer met its burden of proof under the second prong of Kachinski to establish Claimant was provided with sufficient information to make an informed decision regarding whether the available position was within her capabilities. Consequently, we reject Claimant s argument that Employer failed this prong and conclude that the Board did not err in affirming the WCJ s decision granting Employer s Suspension Petition. 16 We acknowledge that in both Eidem and Martinez, the employers, unlike Employer here, attached a copy of their medical expert s imposed restrictions to the referral letters. As such, the claimants in those cases knew specifically what activities were being limited. In the present matter, however, Claimant was informed only that her position would be altered to conform with her release to modified duty. Nonetheless, because Claimant knew her dietary aid position was to be limited to conform to a restriction of modified duty, she was aware of the job s classification. Moreover, while Claimant may not have been aware of how the aspects of her job would be changed to the point that it would conform to her physical restrictions, she was aware of the normal requirements of her job as well as the fact that there were other people working in the kitchen that could perform duties that fell outside of the restrictions imposed by Dr. DiBenedetto. Thus, we cannot say that Claimant did not, at least, have something to go on. 5 Four Way. It is true that the WCJ credited Claimant s testimony to the extent that she attempted to contact Employer on one occasion after receiving the second referral letter. Her testimony, however, is silent as to the nature of this call. 5 Employer, in brief, asserts that even if the referral letters themselves were deficient in that they did not inform Claimant of the physical requirements of the offered job, such a defect was cured by the fact that Claimant was previously provided with a Notice of Ability to Return to Work. According to Employer, attached to the Notice of Ability to Return to Work, which it admits was not submitted into the record, was a report of Dr. DiBenedetto that detailed Claimant s restrictions. In light of our ruling that the contents of Employer s referral letters combined with Claimant s familiarity with the requirements of her pre-injury position constituted sufficient evidence to determine that Employer satisfied the second prong of Kachinski, we need not address Employer s argument that the Board s Order should nonetheless be affirmed. 17 Moreover, Ms. Snyder, the testimony of whom was credited in its entirety, stated that the voicemail she received from Claimant referenced only that her attorney advised her not to return to work. Absent any indication that Claimant called to inquire about how her pre-injury job would be modified to fit within Dr. DiBenedetto s restrictions, we can find no reversible error.6 JIM FLAHERTY, Senior Judge Judge Smith-Ribner concurs. 6 Admittedly, this reference to the contents of Claimant s phone call to Employer most likely would be applicable to the third prong of Kachinski concerning whether Claimant acted in good faith in following through on the job offer. We further acknowledge that Claimant s failure to satisfy her burden of establishing that she followed though on Employer s job offer in good faith is not implicated in this appeal. 18 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Michelle Kogut, : Petitioner : : v. : : Workers Compensation Appeal Board : (Mountain View Manor), : Respondent : No. 189 C.D. 2008 ORDER AND NOW, this 3rd day of July, 2008, the Order of the Workers Compensation Appeal Board in the above-captioned matter is affirmed. JIM FLAHERTY, Senior Judge

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