B. D'Onofrio v. WCAB (C & J Tire Service, Inc.) (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Brian D Onofrio, Petitioner v. Workers Compensation Appeal Board (C & J Tire Service, Inc.), Respondent BEFORE: : : : : No. 2193 C.D. 2007 : Submitted: April 18, 2008 : : : HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE PELLEGRINI FILED: May 16, 2008 Brian D Onofrio (Claimant) appeals from an order of the Workers Compensation Appeal Board (Board) affirming a Workers Compensation Judge s (WCJ) denial of his petition to reinstate benefits because he had not sustained a loss of earning power due to any work-related injury as he had been discharged from his employment with cause. In May 2002, Claimant started work as a tire service manager for C & J Tire Service, Inc. (Employer) where he would change tires for customers and perform other heavy labor on automobiles. On October 17, 2002, he sustained a work-related injury to his back in the nature of a herniated disc at L-5 and S-1. Employer accepted the injury by way of a notice of compensation payable. Claimant later resumed his work with Employer on May 17, 2004, in a modified managerial position at no loss in earnings. Employer filed a petition to suspend Claimant s workers compensation benefits, which he did not contest, and his benefits were suspended as of May 24, 2004. Upon returning to work, Claimant requested that Employer transfer him to another one of its stores with a lower volume than his assigned store. It granted his request, and at the different location, Claimant was to address customer concerns, sell products to customers, and ensure the shop s proper flow of service. He was not required to perform labor on vehicles. Beginning in June 2004, though, several technicians and specialists left Claimant s shop either because they had quit or their employment had been terminated. As a result, he assumed some of their duties, including tasks that required physical exertion such as the installation/removal of tires on a vehicle. Due to the additional stress Claimant received professionally as well as concurrent personal problems, he experienced a mental breakdown and stopped working for Employer on October 24, 2004. After this date, Claimant sought medical assistance for his condition, but did not return to work. Employer asked him to apply for Family and Medical Leave Act (FMLA) benefits, but Claimant refused, believing that it was inconsistent with a claim for workers compensation benefits that he intended to seek for his psychological injury based on abnormal working conditions. Because he did not seek leave, Employer discharged him from employment based on job abandonment. Claimant then applied for unemployment compensation benefits which were granted 2 because the Referee rejected Employer s contention that his discharge had been for cause. On April 20, 2005, Claimant was medically released to return to regular work because of the improvement to his mental condition. Both Claimant and Employer filed various petitions addressing whether his October 24, 2004 mental breakdown was a compensable work-related injury.1 Pertinent to this appeal is Claimant s petition to reinstate workers compensation benefits as of October 1, 2004,2 alleging that he suffered a recurrence/increase of his October 17, 2002 work-related injury to his back. Employer denied the allegations, and the matter was assigned to a WCJ. In support of his petition, Claimant testified that on October 17, 2002, he herniated a disc at the L-5 and S-1 levels and underwent a laminectomy two months later. He stated that the procedure resulted in some relief, but he still had ongoing disability. He further testified that his orthopedic surgeon released him to work in a managerial capacity, a less physically demanding job, and he resumed work in May 2004, resulting in no loss of earnings. Once the personnel changed at his store in 1 Other petitions filed in this matter included a claim petition, a petition for review and a penalty petition filed by Claimant, as well as a petition to terminate his benefits filed by Employer. Each of these petitions was denied by the WCJ, and neither party has appealed this determination. With regard to Claimant s claim petition, the WCJ determined that his mental breakdown was not a work-related, compensable injury. 2 Although Claimant s petition to reinstate benefits seeks reinstatement as of October 1, 2004, he would not be entitled to benefits on this date because he was still employed by Employer at no loss of earnings in comparison to his pre-injury wage. For the purposes of resolving this matter, it will be assumed that Claimant was seeking reinstatement as of October 24, 2004, his final day of employment with Employer, and into the future. 3 June 2004, he stated that he was forced to perform manual labor on customers automobiles and to increase his daily hours to meet the business s demands. Claimant stated that the performance of the additional duties worsened his back and leg pain to the point where his legs felt lead-like at the end of the day. He testified that during his commute to work on October 24, 2004, he suffered a panic attack and immediately checked himself into Ephrata Community Hospital. Following a fiveday stay there, he attended an adult psychological treatment program that lasted two weeks. Claimant also stated that he had rejected FMLA benefits because he believed the October 24, 2004 incident was a workers compensation-related incident, and that he communicated to Employer that he did not abandon his position, but did not appear for work because he could not perform the job in accordance with his doctors orders. However, Claimant testified that he began searching for new employment in February 2005 but did not find a job. Testifying on behalf of Claimant was Dr. Joseph Mehm, M.D. (Dr. Mehm), a board certified orthopedic surgeon, who stated that he treated Claimant for his work-related back injury since November 5, 2002. Dr. Mehm stated that after performing the laminectomy on Claimant, he experienced moderate post-operative back pain. He released Claimant to work in November 2003 with restrictions on the hours he could work and the tasks he could perform. He testified that he released him in May 2004 to work with no restrictions as a store manager, a position where he would occasionally have to lift 30 pounds and remain in a sedentary position every so often. Claimant was reexamined by Dr. Mehm in October 2005 at which time he still exhibited chronic neural fibrosis at the levels L-5 and S-1, which he opined was a result of his work-injury and from the exacerbation of that injury when he began 4 performing manual labor after being released to work in May 2004. Dr. Mehm expressed that due to Claimant s back condition, he would not be able to perform the rigorous work that his pre-injury position entailed, but that he could return to his managerial position as long as manual labor and increased hours were not necessary. As for future employment, Dr. Mehm testified that Claimant was restricted to lifting a maximum of 30 pounds; he could not climb ladders, stoop, crawl or engage in bending maneuvers; and he could not perform excessive activity involving his lower back. Dr. Bruce Sicilia, M.D. (Dr. Sicilia), who was board certified in physical medicine and rehabilitation, also testified on behalf of Claimant and stated that he examined him on May 5, 2006, at which time he reviewed his medical records with specific attention to a function capacity evaluation performed on Claimant in 2003. Dr. Sicilia testified that the results of that evaluation established that Claimant could function at a light-work level and that he could lift below 30 pounds as a result of his work-related back injury. He stated that he diagnosed Claimant with ongoing discogenic low back pain at the levels of L-5 and S-1, and that he had reached his maximum medical improvement. In opposition, Dr. William Beutler, M.D. (Dr. Beutler), a board certified neurologist, testified that he examined Claimant on January 6, 2006, and observed that he had normal strength in his upper and lower extremities, no hip or spine tenderness, a normal gait, and a good range of neck and lumbar spine. He opined that Claimant s back injury had no relationship to his subsequent mental breakdown. He 5 further opined that Claimant fully recovered from the October 17, 2002 back injury and had reached maximum medical improvement. Finding Drs. Mehm and Sicilia to be credible and Claimant and Dr. Beutler to be credible in part, the WCJ found that Claimant had not fully recovered from his October 17, 2002 work-related back injury, which had reached full medical improvement. However, the WCJ further found that Claimant was able to do the same type of managerial work as of the date he left Employer, but without the additional manual labor. Finally, the WCJ determined that Claimant was not disabled from work on or after October 24, 2004, because of his work-related back condition, but rather, that he stopped working for Employer because of his mental breakdown. She concluded that Claimant failed to sustain his burden that his workers compensation benefits should be reinstated and denied his petition. Claimant appealed to the Board, which affirmed, and this appeal followed.3 On appeal, Claimant argues that the Board erred in denying his reinstatement petition because he sustained a loss of earning capacity due to his ongoing work-related back injury. Specifically, he contends that because he was working a modified managerial position when he suffered his mental breakdown on October 24, 2004, he still suffered from his ongoing October 17, 2002 work injury which prevented him from resuming work, and his benefits should be reinstated. 3 Our review of a decision of the Board is limited to determining whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence, and whether constitutional rights were violated. Shop Vac Corporation v. Workers Compensation Appeal Board, 929 A.2d 1236 (Pa. Cmwlth. 2007). 6 To reinstate workers compensation benefits that have been suspended, a claimant has the burden of proving that the disability which gave rise to his original claim continues, and that, through no fault of his own, his earning power is again adversely affected by his disability. Pieper v. Workmen s Compensation Appeal Board (Ametek-Thermox Instruments Div.), 526 Pa. 25, 584 A.2d 301 (1990). Once a claimant has shown this, the burden then shifts to the employer to rebut his proof of loss of earnings by showing that suitable work was available or would have been available but for circumstances which merit allocation of the consequences of a discharge to the claimant, such as the claimant's lack of good faith. Vista International Hotel v. Workmen s Compensation Appeal Board (Daniels), 560 Pa. 12, 742 A.2d 649 (1999). Under this burden, to defeat the claimant s allegation of a loss of earnings, the employer must show that it had good cause to discharge him. However, in instances where a claimant has failed to show his loss of earnings is attributable to his work-related injury, the employer is under no obligation to provide suitable alternative employment, and reinstatement of disability benefits is not proper. Campbell v. Workmen s Compensation Appeal Board (Foamex), 707 A.2d 1188 (Pa. Cmwlth. 1998). For example, in Inglis House v. Workmen s Compensation Appeal Board (Reedy), 535 Pa. 135, 634 A.2d 592 (1993), a claimant sought total disability benefits from her original employer for an injury she suffered to her back even though she had accepted full-time modified work with another employer without a loss of earnings, but with some residual disability. The claimant then voluntarily quit that second job and filed for reinstatement of total disability benefits, alleging that she was entitled to benefits because her original employer did not prove work was available to her within 7 her limitations. Our Supreme Court concluded that the original employer did not have the burden to show suitable alternative employment because the claimant s loss of earning power was not attributable to her work-related disability, but rather, her decision to quit her second job. Similarly, in Miller v. Workmen s Compensation Appeal Board (Allied Aviation Services of PA), 627 A.2d 824 (Pa. Cmwlth. 1993), the claimant suffered a work-related injury but was able to return to her previous position. She then left that job and began employment with K-Mart when her disability recurred, and she received total disability benefits from her original employer. Those benefits were later suspended when she returned to work with K-Mart without a loss of wages but residual disability. The claimant subsequently left her position with K-Mart in favor of a position with a restaurant for higher wages. After 10 months at that job, she quit because she felt her safety was threatened by the actions of her superior and filed a petition to reinstate her disability benefits. We concluded that because the claimant did not quit due to reasons related to her initial work injury, she was not entitled to a reinstatement of benefits because her loss of earnings was not related to her disability. Applying this reasoning to the instant matter, Claimant has neither offered any evidence nor alleged his inability to work for Employer beginning on October 24, 2004, was related to his October 17, 2002 work injury. Instead, he has admitted that he left Employer on that date due to his mental breakdown, which was determined to be unrelated to his work-related back injury, and remained absent from Employer until his termination in January 2005 because he failed to apply for FMLA benefits and was considered to have abandoned his employment. Based on those 8 facts, the WCJ found4 that any loss of earnings after October 24, 2004, was not due to Claimant s work injury, but from his voluntarily leaving his employment for a nonwork-related reason. Because Claimant was unable to show that his loss of earnings was attributable to his work injury, the WCJ properly found that Claimant was not entitled to a reinstatement of his workers compensation benefits. Accordingly, the order of the Board is affirmed. ___________________________________ DAN PELLEGRINI, JUDGE 4 In workers compensation proceedings, the WCJ is the ultimate finder of fact. As factfinder, matters of credibility, conflicting medical evidence, and evidentiary weight are within the WCJ s exclusive province. The WCJ is free to accept or reject the testimony of any witness, including a medical witness, in whole or in part. If the WCJ's findings are supported by substantial evidence, they are binding on appeal. Westmoreland County v. Workers Compensation Appeal Board (Fuller), 942 A.2d 213 (Pa. Cmwlth. 2008). 9 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Brian D Onofrio, Petitioner v. Workers Compensation Appeal Board (C & J Tire Service, Inc.), Respondent : : : : No. 2193 C.D. 2007 : : : : ORDER AND NOW, this 16th day of May, 2008, the order of the Workers Compensation Appeal Board, No. A07-0656, is affirmed. ___________________________________ DAN PELLEGRINI, JUDGE
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