J. Casey v. WCAB (Atlas Railroad Construction) (Majority Opinion)
Annotate this Case
Download PDF
IN THE COMMONWEALTH COURT OF PENNSYLVANIA John Casey, : Petitioner : : v. : : Workers' Compensation Appeal Board : (Atlas Railroad Construction), : Respondent : BEFORE: No. 2240 C.D. 2007 Submitted: March 7, 2008 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SMITH-RIBNER FILED: June 5, 2008 John Casey (Claimant) petitions for review of the order of the Workers' Compensation Appeal Board (Board) that affirmed the decision of the Workers' Compensation Judge (WCJ) granting the suspension petition filed by Atlas Railroad Construction (Employer) and denying Claimant's petition to reinstate benefits. Claimant argues that the WCJ erred in suspending benefits for his failure to act in good faith on Employer's July 2005 job offer and in refusing to reinstate benefits when he stopped work in January 2006. Claimant sustained an injury on December 8, 2003 in the course of his employment with Employer as a ballast regulator operator. He received disability benefits pursuant to an agreement of compensation that described the injury as "tear of posterior horn medial meniscus of left knee." In March 2004 Claimant underwent surgery performed by Dr. Patrick DeMeo. Jeffrey Kann, M.D., a boardcertified orthopedic surgeon, performed an independent medical evaluation of Claimant on March 17, 2005 and released him to sedentary-type work with restrictions of frequent lifting and carrying up to twenty-five pounds, occasional twisting and climbing of stairs, frequent bending at waist, sitting for eight hours a work day, standing/walking for one hour and work-related driving for five hours. In a June 30, 2005 letter, Employer's case manager, Dana Dagostino, offered Claimant a full-time modified ballast regulator operator position at his preinjury wage with an assigned project to begin on July 11. The position required Claimant to "[o]perate ballast regulator machine to clean and redistribute ballast, and to grade and level ballast on railroad tracks: [p]ull levers to drive machine and control attachments." Exhibit D-C; Reproduced Record (R.R.) at 200a. Dagostino characterized the offered position as a sedentary position, and she stated that the position was determined to be appropriate under Dr. Kann's March 17 evaluation, that a tamper operator would be provided to make daily visual inspections of the ballast and to check and fill the radiator and that Claimant would then sit in a padded chair with back and arm rests to operate the machine by using only hand controls. Claimant was advised that there were three steps to the ballast walkway with handrails: a 19-inch-high first step and two 12-inch-high steps. There was one more 12-inch-high step from the ballast's cab to the operator's platform. Claimant returned on July 18 without wage loss and worked until July 21. On August 15, 2005, Employer filed a petition to suspend Claimant's benefits as of July 21, alleging that it offered Claimant a specific job. On November 18, 2005, Employer offered Claimant a modified ballast regulator position available December 1 at pre-injury wages. Employer stated that he would be provided an assistant who would perform all manual labor, including preventive and routine maintenance work, and that Claimant would operate the regulator. On December 2, 2005, the parties entered into a supplemental agreement describing 2 Claimant's injury as a "torn cartilage/blood clot post surg" and modifying the description of the injury to include "left deep vein thrombosis and subsequent left leg post-phlebitic syndrome." Exhibit B-04; R.R. at 263a - 264a. Claimant returned to work on December 8, and Employer issued a suspension notice the next day. Claimant worked until January 16, 2006. Employer immediately thereafter offered Claimant a modified position in Kentucky, and on March 9 he filed a reinstatement petition alleging that he was unable to work as of January 16.1 Claimant testified that when he returned to work on July 18, 2005 his supervisor, Steve Kolodziej, told him to train Jason Eddy; that he performed duties of a regular ballast regulator operator position except greasing the ballast machine fittings; and that he stopped work on July 21 due to pain and swelling in his leg. Claimant's treating physician, Joseph DiCroce, M.D., board-certified in internal medicine, first saw Claimant in June 2004 for other health problems and discussed his left knee problems. Dr. DiCroce found tenderness in Claimant's knee during his examination on January 10, 2006 and thereafter issued a slip taking Claimant off work for an indefinite period of time. Claimant, however, continued to work 1 On December 15, 2005, Claimant filed his employee challenge to the December 9, 2005 suspension notice and requested a special supersedeas hearing under Section 413(c)(1) of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, added by Section 2 of the Act of July 1, 1978, P.L. 692, 77 P.S. §774.2(1). The WCJ denied Claimant's challenge after hearings. The Board reversed in part the WCJ's denial and reinstated Claimant's benefits as of January 17, 2006. In a memorandum opinion and order filed in Atlas R.R. Constr. Co. v. Workers' Compensation Appeal Board (Casey) (Pa. Cmwlth., No. 446 C.D. 2007, filed April 14, 2008), the Court affirmed the Board, concluding that the WCJ improperly relied upon irrelevant evidence presented at the special supersedeas hearings to deny Claimant's challenge. See U.S. Airways v. Workers' Compensation Appeal Board (Rumbaugh), 578 Pa. 456, 854 A.2d 411 (2004) (holding that the only relevant issues at a special supersedeas hearing are whether the claimant returned to work without wage loss as of the date of the suspension notice and whether the claimant is still working without wage loss). 3 until January 16. Dr. DiCroce opined that Claimant was disabled and unable to continue to work due to pain as of January 10. Employer presented the testimony of Kolodziej and Eddy. Kolodziej assigned Eddy to assist Claimant when he returned to work on July 18, 2005. Claimant operated the ballast regulator using only his arms and was not required to use foot controls or to do kneeling, lifting or climbing, except getting in and out of the machine. Eddy did all other physical activities for Claimant, such as greasing fittings, changing air filters, turning on the ballast regulator and striking machine wings to remove stuck objects. Claimant did not ask for help or complain of pain through July 20, and on July 21 he indicated that his knee was bothering him. Assistance would have continued had he not stopped work on July 21. Dr. Kann testified that at the time of his March 17, 2005 examination Claimant had pain over the medial joint line and the patellofemoral joint with palpation and swelling from the knee level and below but no soft tissue swelling on the left knee itself. Claimant's flexion was limited to 90 degrees, but his left knee was stable. His neurological examination was normal, and a vascular examination of the left leg revealed a post-phlebitis syndrome with varicose veins around the ankle consistent with deep venous thrombosis. Dr. Kann opined that Claimant was capable of performing the modified position (essentially a sedentary position), with fifteen-minute breaks every two hours, and that climbing and driving at work did not prevent him from performing the duties of the modified position. The WCJ credited testimony from Dr. Kann and the lay witnesses for Employer and rejected testimony from Claimant and Dr. DiCroce. The WCJ found that work within Claimant's physical capabilities was available at his pre-injury wage as of July 11, 2005, that he did not act in good faith when he did not continue 4 to work after July 21 and that he failed to establish recurrence of his disability as of January 16, 2006. The WCJ granted Employer's suspension petition and denied Claimant's reinstatement petition. Finding no error, the Board affirmed. Claimant argues that Dr. Kann's March 17, 2005 medical clearance was vitiated because Claimant developed disabling symptoms after returning to work two times and was forced to stop working. He asserts that he proved that he left work because of the work injury, not because of lack of good faith, and that Dr. Kann should have examined him following his attempts to return to work to ascertain whether he stopped work due to symptoms related to the work injury. Employer counters that substantial evidence supports Claimant's ability to perform the available modified position and his failure to act in good faith and that he failed to establish entitlement to reinstatement.2 An employer who seeks a modification on the basis that the claimant has recovered some or all of the ability to work must first present medical evidence of a change in the claimant's condition and evidence of a referral to a then open job within the occupational category for which the claimant has been given medical clearance. Kachinski v. Workmen's Compensation Appeal Board (Vepco Constr. Co.), 516 Pa. 240, 532 A.2d 374 (1987). Once the employer meets its burden, the claimant must show that he/she followed through on all valid job referrals within his/her medical restrictions in good faith. Id. Dr. Kann testified that Claimant had no restrictions on the use of his hands or upper extremities and could climb up and down stairs occasionally and 2 The Court's review is limited to determining whether constitutional rights were violated, an error of law was committed, a Board practice or procedure was not followed or the findings of fact are not supported by substantial evidence in the record. Clear Channel Broadcasting v. Workers' Compensation Appeal Board (Perry), 938 A.2d 1150 (Pa. Cmwlth. 2007). 5 that the offered position approved by him in June 2005 was basically a sedentarytype position requiring no kneeling or squatting. Dr. Kann opined that Claimant could perform the duties of the modified position with fifteen-minute breaks every two hours. On cross-examination, Claimant conceded that Eddy greased the ballast machine and readied it for operation, that he performed no physical activities before getting into the machine and was not required to kneel, lift or climb, except getting in and out of the machine, and that Eddy was available to do what he could not do. See N.T., September 14, 2005 Hearing, pp. 24 - 30; R.R. at 116a - 122a. Claimant does not dispute that the modified position was available when he stopped working on July 21, 2005. In accepting Dr. Kann's testimony, the WCJ found in part as follows: [Dr. DiCroce] mostly discussed Mr. Casey's left knee problems with him when he saw him for other health problems. He only performed range of motion and twisting a little to see if rotation stability was present. But Dr. DiCroce did not perform a specific examination of the left knee on June 14, 2004, May 24, 2004, or September 27, 2005. He provided Mr. Casey with slips to be off work on July 5, 2005, and September 6, 2005, even though Dr. DiCroce did not examine Mr. Casey around those dates. ¦ He admitted there were no objective findings when seen on February 23, 2006, April 20, 2006, and May 30, 2006. He had no documentation of Mr. Casey's daily activities. WCJ's Findings of Fact No. 20. In a workers' compensation case, credibility and evidentiary weight determinations are within the province of the WCJ to make as fact-finder, and the WCJ may accept or reject testimony of any witness, including medical testimony, in whole or in part. Canavan v. Workers' Compensation Appeal Board (B & D Mining Co.), 769 A.2d 1250 (Pa. Cmwlth. 2001). Further, the WCJ is not required to give greater weight to the testimony of the claimant's 6 treating physician than to the testimony of a physician engaged to examine the claimant for the purpose of litigation. Jenkins v. Workmen's Compensation Appeal Board (Woodville State Hosp.), 677 A.2d 1288 (Pa. Cmwlth. 1996). Disability benefits properly may be suspended where, as here, the employer demonstrates "that the claimant's disability has decreased to the point that claimant is capable of performing his pre-injury job or other work without loss of earnings and that such work is available." Carpentertown Coal & Coke Co. v. Workmen's Compensation Appeal Board (Seybert), 623 A.2d 955, 957 (Pa. Cmwlth. 1993). A claimant seeking to reinstate suspended benefits must prove that, through no fault of the claimant's, his/her earning power is once again adversely affected by the disability and that the disability giving rise to the original claim in fact continues. Pieper v. Ametek-Thermox Instruments Div., 526 Pa. 25, 584 A.2d 301 (1990). An employer "may rebut claimant's proof of loss of earnings by establishing the availability of work that claimant is capable of performing." Id. at 34 n8, 584 A.2d at 305 n8. The WCJ accepted Dr. Kann's testimony regarding Claimant's ability to perform the modified position after his return to work on December 8, 2005, and Claimant does not dispute that the position was available when he stopped work as of January 16, 2006. As a result, he failed to prove his entitlement to a reinstatement of benefits on January 17, 2006. After careful review, the Court concludes that the WCJ's decision is supported by substantial evidence, and it therefore affirms the order of the Board. DORIS A. SMITH-RIBNER, Judge 7 IN THE COMMONWEALTH COURT OF PENNSYLVANIA John Casey, : Petitioner : : v. : : Workers' Compensation Appeal Board : (Atlas Railroad Construction), : Respondent : No. 2240 C.D. 2007 ORDER AND NOW, this 5th day of June, 2008, the Court affirms the order of the Workers' Compensation Appeal Board. DORIS A. SMITH-RIBNER, Judge
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
