Food Service Specialists Co., et al. v. WCAB (Sendek) - 2136 & (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Food Service Specialists Company, (Broadspire Services/Crawford Group), Petitioner v. Workers' Compensation Appeal Board (Sendek), Respondent Thomas A. Sendek, Petitioner v. Workers' Compensation Appeal Board (Food Service Specialists Company), Respondent BEFORE: : : : : : : : : : No. 2136 C.D. 2007 : : : : : : : : No. 2205 C.D. 2007 Submitted: April 25, 2008 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE McCLOSKEY FILED: June 11, 2008 The present case involves the cross-appeals of Food Service Specialists Company (Employer) and Thomas A. Sendek (Claimant) from an order of the Workers Compensation Appeal Board (Board), affirming an order of a Worker s Compensation Judge (WCJ), granting Claimant attorney fees for an unreasonable contest. In its decision, the Board noted that the parties had also preserved several issues regarding the Claimant s reinstatement petition and Claimant s entitlement to benefits prior to 1990. These issues had been previously decided by the Board in several earlier decisions, following multiple remands to the WCJ. We now affirm. This case began on November 21, 1987, when Claimant injured his back in a fall at work. Pursuant to a notice of compensation payable (NCP), Claimant began receiving benefits at the rate of $357.67, pursuant to the Pennsylvania Workers Compensation Act.1 The NCP described the injury as a lower back strain. (Claimant s brief, Attached Exhibits at 39). A termination petition was later filed by Employer. Employer alleged that on April 18, 1988, Claimant had returned to work, without restrictions and without a loss of earnings. On November 22, 1989, WCJ James Deeley granted the termination petition. Claimant was not present at the hearing. In 1991, Claimant filed a reinstatement petition, alleging a recurrence of his injury as of January 8, 1990, and further alleging that his benefits were improperly terminated in 1989 without his knowledge. WCJ Anna Mullen determined that Claimant did not receive proper notice of the petition to terminate in 1989. Hence, WCJ Mullen set aside WCJ Deeley s decision granting Employer s termination petition. Nevertheless, after the presentation of testimony on this issue, WCJ Mullen found that Claimant had fully recovered from his work related injury as of April 5, 1988. As such, Claimant s benefits were terminated as of that date. With respect to Claimant s reinstatement petition, WCJ Mullen determined that Claimant did not meet his burden of establishing a recurrence of his injury.2 Claimant appealed to the Board. In its opinion dated November 21, 1997, the Board determined that WCJ Mullen had erred in setting aside WCJ Deeley s 1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4; 2501-2708. 2 WCJ Mullen s decision regarding these issues was circulated in March of 1995. 2 decision. Therefore, the Board reinstated WCJ Deeley s opinion terminating Claimant s benefits. The Board further determined that WCJ Mullen did not err in denying a reinstatement of benefits based on Claimant s allegation that his injury had recurred. However, the Board remanded the case to WCJ Mullen to determine whether Claimant was entitled to a reinstatement of benefits from March 8, 1988, through November 22, 1989, and if so, whether interest and penalties were appropriate. The Board concluded that a remand was necessary because Claimant alleged that Employer unilaterally modified his benefits on March 8, 1988, thereby improperly ceasing Claimant s benefits prior to the date of WCJ Deeley s decision terminating benefits. Claimant appealed the Board s ruling regarding the termination petition to this Court. Ultimately, we concluded that the notice of the hearing was properly sent to Claimant at his address of record. Hence, we affirmed the order of the Board as to the termination petition. See Food Service Specialists Company and Broadspire (Kemper Insurance Group) v. Workers Compensation Appeal Board (Sendek), (Pa. Cmwlth., No. 1203 C.D. 1999, filed December 8, 1999). Meanwhile, on remand, WCJ Mullen determined that Claimant was not due compensation from March 8, 1988, through November 22, 1989. WCJ Mullen found that Claimant was paid partial disability as of March 7, 1988, when he returned to light duty, and that he returned to his position without a loss of earnings as of April 18, 1988. WCJ Mullen further found that Claimant had voluntarily resigned his position with Employer on May 20, 1988. Claimant appealed to the Board and the Board reversed this decision by WCJ Mullen. The Board concluded that retroactively terminating benefits did not relieve Employer of its obligation to pay benefits through the date of the decision. The 3 case was again remanded to the WCJ to consider a reinstatement of benefits from March 8, 1988, through November 22, 1989, and any applicable penalties. On remand, the case was heard by WCJ Francis Desimone. WCJ Desimone determined that Claimant was entitled to benefits through the period at issue, with interest of ten percent. However, WCJ Desimone did not award penalties or attorney fees as he concluded that Employer had presented a reasonable contest. Both Claimant and Employer appealed the order of WCJ Desimone to the Board. Claimant also filed a motion to quash Employer s appeal as untimely. The Board determined that Employer s appeal was untimely. The Board further determined that as Employer s appeal was not filed within twenty days of WCJ Desimone s opinion, Claimant s cross-appeal, which was filed fourteen days after Employer s appeal, was also untimely. Therefore, the Board dismissed both appeals for lack of jurisdiction. Employer appealed to this Court alleging that its appeal was timely. This Court disagreed and affirmed the order of the Board. See Food Service Specialists Company and Broadspire (Kemper Insurance Group), v. Workers Compensation Appeal Board (Sendek), (Pa. Cmwlth., No. 2764 C.D. 2004, filed July 5, 2005). However, Employer had also filed a petition for rehearing with the Board. Unbeknownst to this Court, the Board had granted rehearing. Employer then filed a motion to vacate this Court s order. We granted the motion, vacated our order and returned the record to the Board for rehearing. See Food Service Specialists Company and Broadspire (Kemper Insurance Group), v. Workers Compensation Appeal Board (Sendek), (Pa. Cmwlth., No. 2764 C.D. 2004, filed August 19, 2005). On rehearing, the Board determined that Employer s appeal was timely. As Employer s appeal was found to be timely, Claimant s cross-appeal was also deemed 4 timely. The Board then considered the merits of the cross-appeals. The Board reversed the order of WCJ Desimone, in part, concluding that Employer s contest was unreasonable. Therefore, the case was remanded for the sole purpose of calculating an award of attorney fees based on this unreasonable contest. On remand, WCJ Desimone found that Claimant s counsel was entitled to attorney fees in the amount of $16,555.00. Claimant and Employer both appealed this determination to the Board and the Board affirmed the decision of WCJ Desimone. Claimant and Employer have now filed cross-appeals to this Court.3 Claimant first alleges that the Board erred in failing to reverse the 1995 decision of WCJ Mullen as to the award total disability benefits. While captioning this as an issue involving reinstatement, Claimant s argument instead addresses his claim that he never received notice of the 1989 hearing before WCJ Deeley. Claimant alleges that he moved prior to the hearing and it was unfair for his benefits to have been terminated without his knowledge. Claimant has already appealed the issue of whether or not he had proper notice of the 1989 hearing to this Court. This Court addressed the issue in the context of our 1999 decision affirming the order of the Board with respect to Employer s termination petition. See Food Service Specialists Company and Broadspire (Kemper Insurance Group) v. Workers Compensation Appeal Board (Sendek), (Pa. Cmwlth., 3 Our scope of review is limited to determining whether there has been a violation of constitutional rights, an error of law or whether necessary findings of fact are supported by substantial evidence. Tri-Union Express v. Workers Compensation Appeal Board (Hickle), 703 A.2d 558 (Pa. Cmwlth. 1997). We also note our Supreme Court s decision in Leon E. Wintermyer, Inc. v. Workers Compensation Appeal Board (Marlowe), 571 Pa. 189, 812 A.2d 478 (2002), which held that review for capricious disregard of material, competent evidence is an appropriate component of appellate consideration in every case in which such question is properly brought before the court. Leon E. Wintermyer, Inc., 571 Pa. at 203, 812 A.2d at 487. 5 No. 1203 C.D. 1999, filed December 8, 1999). In that decision, we concluded that the notice sent to Claimant was proper as it was Claimant who failed to notify Employer of his change of address. Claimant also argues that Employer had the burden of proving the absence of any compensable injury. This claim is based on Claimant s continuing allegation that the 1989 termination hearing should be deemed invalid and, therefore, Claimant does not have the burden of establishing grounds for reinstatement after a termination. As noted above, this Court affirmed the order of the Board upholding the decision of WCJ Deeley terminating Claimant s benefits. In order to reinstate benefits following a termination, Claimant bears the burden of proving that his physical condition has changed and that the disability has increased or recurred. Hastings v. Workers Compensation Appeal Board (Mastech Construction), 667 A.2d 485 (Pa. Cmwlth. 1995), petition for allowance of appeal denied, 544 Pa. 678, 678 A.2d 367 (1996). As such, we reject Claimant s allegation that Employer was obligated to establish the absence of an injury. Claimant next alleges that the Board erred in accepting WCJ Mullen s Findings of Fact Nos. 12, 13(b), 13(c) and Conclusions of Law Nos. 3 and 4. This issue involves the 1995 opinion of WCJ Mullen as to Claimant s petition for reinstatement of benefits. At the reinstatement hearing, Claimant testified that he injured his back at work in 1987. Then, in April, 1988, he returned to light-duty employment with Employer. On May 20, 1988, he left said employment because he felt incapable of performing his duties. He worked for several employers thereafter. Claimant stated that he did not seek medical attention for his back from April, 1988, through June, 1990. 6 Claimant testified that while working for a new employer on June 4, 1991, he lifted a twenty pound package and experienced back pain. Claimant stated that the pain was similar to the back pain he experienced in 1987. While alleging that the pain recurred, Claimant continued to work for several different employers following the date of the alleged recurrence. In support of his reinstatement petition, Claimant presented the deposition testimony of Victoria Smith M.D. Dr. Smith only examined Claimant on one occasion, which took place on July 2, 1992. Dr. Smith reviewed Claimant s history and found that he exhibited mild to moderate muscle spasm in his left paralumbar muscles in addition to tenderness over the left sacroiliac joint. Dr. Smith also reviewed Claimant s x-rays and concluded that Claimant had a narrowing of the L5-S1 disc spaces. Dr. Smith opined that Claimant suffered a disc injury as a result of the 1987 work-related injury and was permanently disabled from his employment as a truck driver, as he was unable to load/unload cargo. On cross-examination, Dr. Smith agreed that her diagnosis was contrary to that of Claimant s treating physician, William Polacheck M.D. She also agreed that the X-rays she evaluated were of poor quality. On its own behalf, Employer presented two medical reports authored by Dr. Polacheck. The reports diagnosed Claimant s 1987 work-related injury as a lumbar strain and established that Claimant was released to full-duty employment without restrictions on April 5, 1988. Employer also presented the testimony of Gary Patrick, its personnel manager. Mr. Patrick testified that Claimant resigned his employment, giving only one day notice. He further stated that Claimant never informed Employer that he was resigning due to an inability to perform the work. 7 Linda Dominioski, a general manager for Employer, testified on behalf of Employer. She explained that her duties included handling the workers compensation claims submitted by employees. She testified that when Claimant resigned, he did not allege that it was because he could not perform his duties. WCJ Mullen found Claimant not credible as to his claim that he left his employment with Employer due to an inability to perform the job. WCJ Mullen also found Dr. Smith to be not credible and accepted the medical opinions of Dr. Polacheck as credible. Claimant challenges Finding of Fact No. 12 in which it was determined that Mr. Patrick testified that Claimant never informed Employer that he was resigning due to an inability to perform the work. Claimant alleges that substantial evidence does not support this finding. Mr. Patrick provided WCJ Mullen with a copy of an employee separation report which he had prepared. The report indicated that Claimant voluntarily quit his employment with one day notice to accept position at Pennco Trucking. (R.R. at 90a). Mr. Patrick was then asked whether Claimant ever stated that he was quitting due to an inability to perform his duties. Mr. Patrick replied that Claimant never stated that he could not perform his duties and if Claimant had made such a statement it would have been normal procedure to indicate it on the separation report. Based on this review of the record, we reject Claimant s allegation of error as to Finding of Fact No. 12. Claimant alleges that Findings of Fact 13(b) and 13(c) should be vacated because WCJ Mullen did not consider Dr. George Wheeling s 1990 report and an MRI report. Claimant s one paragraph argument does not provide any evidence that WCJ Mullen failed to consider either report. We note that WCJ Mullen listed the report of Dr. Wheeling and the MRI report in her opinion. 8 Claimant further alleges that WCJ Mullen erred in concluding that Dr. Polacheck considered Claimant fully recovered. Dr. Polacheck s report indicated that Claimant had sustained a lumbar strain and could return to work, without restriction, on April 5, 1988. We do not find that WCJ Mullen s interpretation of Dr. Polacheck s report constitutes reversible error. As to Conclusions of Law Nos. 3 and 4, Claimant alleges that it was error for WCJ Mullen to conclude that Claimant failed to meet his burden of establishing that his work injury continued and to find that Claimant was fully recovered from his workrelated injury as of April 5, 1988. Claimant once again alleges that it was Employer s burden to establish that the injury did not continue. As discussed above, we reject Claimant s allegation that Employer was obligated to establish the absence of an injury. Claimant next alleges that the Board erred by failing to reverse WCJ Desimone s Finding of Fact No. 3(4).4 In Finding of Fact No. 3(4), WCJ Desimone found that Claimant had voluntarily quit his employment on May 20, 1988. Claimant argues that he did not voluntarily quit his employment; instead, he claims that he left his employment because he could not perform his job due to back pain. As discussed above, Mr. Patrick testified that Claimant resigned, stating he had obtained new employment. Mr. Patrick testified that Claimant never stated he was resigning due to a problem performing his job. Ms. Dominioski also testified that Claimant never informed her that he could not perform his job duties and that he merely stated that he was quitting. (R.R. at 54a) When reviewing the findings by the WCJ, it is not the function of this Court to reweigh the evidence or review the credibility of the witnesses; rather, it is to 4 This allegation of error is in reference to WCJ Desimone s opinion of February 23, 2007. 9 determine whether the findings of the WCJ have adequate support in the record. The WCJ is free to accept or reject the testimony of any witness, in whole or in part. Hills Department Store No. 59 v. Workmen s Compensation Appeal Board (McMullen), 646 A.2d 1272 (Pa. Cmwlth. 1994), petition for allowance of appeal denied, 540 Pa. 587, 655 A.2d 518 (1995). As this Court has recognized, the fact that one party to a proceeding may view testimony differently than the factfinder is not grounds for reversal if substantial evidence supports the determinations made by the factfinder. See Tapco, Inc. v. Unemployment Compensation Board of Review, 650 A.2d 1106 (Pa. Cmwlth. 1994). The testimony of Mr. Patrick and Ms. Dominioski constitutes substantial evidence of record in support of WCJ Desimone s finding that Claimant had voluntarily left his employment. Thus, we find that the Board did not err in failing to reverse the decision of WCJ Desimone in this regard. Claimant s final allegation is that the Board erred in accepting WCJ Desimone s calculation of the award of attorney fees. Claimant requests that the case be remanded to WCJ Desimone in order for him to conduct an item by item review of the documents submitted as to the award of attorney fees. On remand from the Board, WCJ Desimone determined that counsel for Claimant billed ninety-four and six-tenths hours for his professional services from December 17, 1999, through November 22, 2004. At the approved hourly rate of $175.00, the total fee amount equaled $16,555.00. As such, WCJ Desimone ordered Employer to pay attorney fees in this amount. Claimant appealed to the Board. The Board examined that calculation done by WCJ Desimone. WCJ Desimone had noted that Claimant s counsel fees from 1990 through 1999 were primarily related to his reinstatement petition. However, from 10 1999 through 2004, Claimant was actively challenging the Board s remand order of November 21, 1997, which addressed the unreasonable contest issue. Then, from 2004 through 2006, Claimant s attorney fees were the result of unrelated litigation pending before WCJ Charles Getty. The Board noted that a detailed list of the time Claimant s counsel spent on the unreasonable contest issue would have been preferable. However, the Board concluded that such separation of issues would be impossible in a case where multiple legal issues were entwined over such a long period of time. Presently, Claimant argues that some of the litigation between the periods of 1990 through 1999 and 2004 through 2006 concerned the unreasonable contest issue; therefore, these periods of time should also be included in the attorney fees calculation. In Budd Company v. Workers Compensation Appeal Board (Kan), 858 A.2d 170 (Pa. Cmwlth. 2004), we explained that were a partial unreasonable contest attorney fee is awarded, it may not always be possible for a WCJ to precisely calculate the period of time spent on the unreasonable contest portion of the case. In such a case, we concluded that it was appropriate for a WCJ to estimate the fees. In the present case, Claimant does not allege that he can provide an exact accounting of the time allocated to the unreasonable contest issue. Yet, Claimant seeks to require WCJ Desimone to examine over fifteen years of litigation and create an item by item accounting in order to allocate the attorney fees. Certainly, as alleged by Claimant, some of the litigation outside of the period between 1999 and 2004 may have included the unreasonable contest issue. However, some of the litigation between 1999 and 2004 definitely encompassed issues other than the unreasonable contest fee. Nevertheless, Claimant does not complain of WCJ Desimone s calculation for that period of time. Claimant is willing to accept WCJ 11 Desimone s estimate allocating that all fees billed in that five year period constituted unreasonable contest fees. However, in addition to that award, Claimant then wants this Court to order a precise accounting as to any period of time not encompassed by the estimate. Claimant cannot have the benefit of both an estimate and a precise accounting. As Claimant does not even claim that a precise accounting for the entire period at issue is possible, we conclude that WCJ Desimone apportioned the fee appropriately under the circumstances of this case. As such, we find no error on the part of the WCJ or the Board in this regard. We now turn to the issues raised by Employer in its cross-appeal. Employer first alleges that the Board erred in concluding that Claimant was entitled to benefits from March 7, 1988 through November 22, 1989, the period during which Employer unilaterally ceased Claimant s workers compensation benefits. Employer argues that it was entitled to stop the payment of Claimant s benefits because Claimant had returned to work without wage loss and later voluntarily quit his employment. Employer also claims it was unilaterally entitled to stop Claimant s benefits based on Claimant s failure to keep Employer informed of his current address. Employer alleges that it attempted to execute a final receipt with Claimant, but was unable to do so because Claimant did not respond to the letters sent to his address. WCJ Desimone had reinstated Claimant s benefits from March 7, 1988, through November 22, 1989, finding that Employer was without authority to stop payment prior to WCJ Deeley s termination order on November 22, 1989. Employer then appealed this issue to the Board.5 The Board agreed that Employer was without authority to unilaterally stop payment. 5 The Board addressed this issue in its opinion of August 14, 2006. 12 It has been a long standing legal principle that an employer cannot unilaterally suspend, terminate, modify or refuse to pay benefits without following the prescribed statutory remedies. City of Philadelphia v. Workers Compensation Appeal Board (Sherlock), 934 A.2d 156, 160 (Pa. Cmwlth. 2007); see also Cohen v. Workers Compensation Appeal Board (City of Philadelphia), 589 Pa. 498, 909 A.2d 1261 (2006); Robb, Leonard and Mulvihill v. Workers Compensation Appeal Board (Hooper), 746 A.2d 1175 (Pa. Cmwlth. 2000); Boeing Helicopters v. Workers Compensation Appeal Board (Cobb), 713 A.2d 1181 (Pa. Cmwlth. 1998); Toy v. Workmen s Compensation Appeal Board (Alltel Pa., Inc.), 651 A.2d 701 (Pa. Cmwlth. 1994). As this Court explained in City of Philadelphia: It is well-settled that an employer who is obligated to pay a claimant benefits may cease paying such benefits only when one of the following conditions is satisfied: (1) a supplemental agreement is submitted; (2) a final receipt is submitted, signed by the claimant; (3) an interlocutory order is secured from a WCJ granting a discretionary supersedeas; (4) a petition to suspend compensation is filed with an accompanying affidavit from the insurer that the claimant has returned to work at wages greater than or equal to his preinjury wages; or (5) a final order is secured from a WCJ terminating a claimant s benefits. City of Philadelphia, 934 A.2d at 160, fn. 9. Failure to continue benefits, without first satisfying one of the conditions, constitutes a violation of the Act. McLaughlin v. Workers Compensation Appeal Board (St. Francis Country House), 808 A.2d 285 (Pa. Cmwlth. 2002), petition for allowance of appeal denied, 573 Pa. 717, 828 A.2d 351 (2003). As Employer failed to continue the payment of benefits, we find that the Board did not err in concluding that Claimant was entitled to benefits for the closed period from March 7, 1988, through November 22, 1989. 13 Employer further alleges that, despite its action in unilaterally ceasing Claimant s workers compensation benefits, it presented a reasonable contest by arguing that Claimant was not entitled to said benefits as he quit his employment and moved without providing Employer with a change of address. When a claimant succeeds in a litigated case, the WCJ must award counsel fees to the claimant, unless the employer meets its burden of establishing facts sufficient to prove a reasonable basis for the contest. Boyer v. Workers Compensation Appeal Board (First Capital Insulation, Inc.), 740 A.2d 294 (Pa. Cmwlth. 1999). The reasonableness of the contest is a question of law and, therefore, subject to this Court s review. Lemon v. Workers Compensation Appeal Board (Mercy Nursing Connections), 742 A.2d 223 (Pa. Cmwlth. 1999), petition for allowance of appeal denied, 562 Pa. 676, 753 A.2d 822 (2000). Employer stopped Claimant s benefits on March 7, 1988; this was prior to Claimant s final day of work on May 20, 1988, and prior to Claimant s relocation in July, 1988. Therefore, Employer cannot use either of the reasons set forth above as a basis for its unilateral decision to terminate Claimant s benefits. Additionally, there is no basis in the law for Employer s claim that these actions by Claimant could somehow relieve it of its obligations under the Act. As such, we cannot say that the Board erred in concluding that Employer failed to present a reasonable contest. 14 Accordingly, the order of the Board is affirmed. JOSEPH F. McCLOSKEY, Senior Judge 15 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Food Service Specialists Company, (Broadspire Services/Crawford Group), Petitioner v. Workers' Compensation Appeal Board (Sendek), Respondent Thomas A. Sendek, Petitioner v. Workers' Compensation Appeal Board (Food Service Specialists Company), Respondent : : : : : : : : : : : : : : : : : No. 2136 C.D. 2007 No. 2205 C.D. 2007 ORDER AND NOW, this 11th day of June, 2008, the order of the Workers Compensation Appeal Board is hereby affirmed. JOSEPH F. McCLOSKEY, Senior Judge

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