M. Klosterman v. WCAB (Pike County) (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Michael Klosterman, Petitioner : : : v. : : Workers Compensation Appeal Board : (Pike County), : No. 287 C.D. 2008 Respondent : Submitted: May 9, 2008 BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE COLINS FILED: June 10, 2008 Michael Klosterman (Claimant) petitions for review of an order of the Workers Compensation Appeal Board (Board) that reversed the decision of Workers Compensation Judge Thomas M. Kutz (WCJ) denying the Modification Petition filed by Pike County1 (Employer). Employer filed a Modification Petition on April 27, 2006, requesting a modification of Claimant s benefits2 as of August 26, 2006, and alleging that 1 The Modification Petition was filed by Pike County, by its insurer or third party administrator, PCOMP. They are collectively referred to herein as Employer. 2 On October 20, 2003, Employer issued a Notice of Temporary Compensation Payable (TNCP) indicating Claimant sustained a left shoulder sprain/strain, and listing Claimant s compensation rate as $429.90, based on an average weekly wage of $644.81 as assistant director work was available to Claimant as of that date pursuant to a Labor Market Survey (LMS).3 Employer presented the testimony of Gary Orben, its chief clerk. Mr. Orben testified that on July 19, 2005, and again on April 6, 2006, he sent letters to Claimant s vocational expert indicating that, at the time, Employer had no lightduty or modified-duty positions available for Claimant. However, on May 30, 2007, the WCJ denied Employer s Modification Petition, and determined that Employer did not meet his burden of proof to establish that it was entitled to a modification of benefits, because it did not present credible evidence to establish that it had no jobs available to Claimant before seeking a modification based on a LMS. Rejecting Mr. Orben s testimony, the WCJ stated: Having reviewed and considered Mr. Orben s testimony regarding the non-availability of jobs suited for Claimant within the Defendant County, this Judge does not find it creditable on this issue. In making this finding, this Judge notes Mr. Orben indicated that he was not responsible for all of the personnel issues within the of food service at the County Correctional Facility. In an Amended Notice of Compensation Payable, dated July 19, 2005, Claimant s injury is described as a rotator cuff tear of his suprespinatus tendon (left). The injury occurred when Claimant was lifting a five-gallon bucket of pickles. 3 Three job descriptions formed the basis of Employer s LMS/Earning Power Assessment; two jobs were positions as a cook, and the third job was a public safety officer, at Birchwood Lake Community in Pike County. The Employer offered the medical testimony of William Charlton, M.D., that Claimant was capable of performing each of the three jobs. Claimant s treating physician, Joseph D. Zuckerman, M.D. testified that although he would not approve either of the two cook positions, the public safety officer position would fall within the restrictions Claimant must abide by in order to avoid further injury to his left shoulder. The WCJ accepted Dr. Zuckerman s testimony, and deemed the public safety officer position only as available to Claimant. (Decision of the WCJ, pp. 10-11.) 2 Defendant County, was not fully aware of positions within the County s correctional facility that may have been available and within Claimant s restrictions during the time in question, was not aware as to whether there were any job openings between July 29, 2005, and April 29, 2006, and was not able to testify whether the Defendant County advertised or filled any jobs that Claimant could have performed between those dates. (Decision of the WCJ, p. 11.) Mr. Orben testified that the County had no positions available for Claimant as evidenced by his letters dated July 19, 2005 and April 6, 2006; with regard to the second letter, Mr. Orben noted that the fact that the County had no positions as of April 6, 2006 would also have been true through the end of April, 2006. (N.T., p. 5) Mr. Orben testified that all of the workers compensation cases, including those arising at the correctional facility, come through the County Commissioner s Office, and that his duties include the record keeping for the County, taking care of contracts, agreements, personnel matters, anything to do with the Commissioner s Office itself. (N.T., p. 4.) In response to the question as to whether he made inquiry with the warden at the County Correctional Facility where Claimant worked as to the availability or vacancy of positions there, Mr. Orben replied, There were no positions I was aware of at the jail at that time, yes ¦during the initial onset of the course of these letters in both instances. (N.T., p. 8.) The WCJ acknowledged this Court s decision in Burrell v. Workers Compensation Appeal Board (Philadelphia Gas Works and Compservices, Inc.), 849 A.2d 1282 (Pa. Cmwlth. 2004), noting Employer s reliance upon language in that case indicating that an employer is not required to prove it does not have an available job within a claimant s restrictions as part of its burden of proof, but 3 rather a claimant must raise this issue as an affirmative defense.4 However, the WCJ distinguished the case sub judice from Burrell, stating that Claimant clearly has raised this issue; and concluded that Employer failed to meet Claimant s challenge to its LMS based on the lack of a showing of no available work for Claimant with it. (Decision of the WCJ, p. 13.) On appeal to the Board, Employer argued that the WCJ erred in denying its Modification Petition by placing the burden of proof on it to establish the absence of a position, and the Board agreed. In its opinion, the Board cited Newcomer Products v. Workers Compensation Appeal Board (Irvin), 826 A.2d 69 (Pa. Cmwlth. 2003), as a case in which this Court has held that a party raising a defense must come forward with evidence sufficient to meet its burden, and stated: [W]hile we agree that Claimant is required to raise the issue as an affirmative defense, Burrell, we see no indication that Claimant produced any evidence to meet his burden of proof on that defense ¦We therefore 4 In Burrell, a claimant s benefits were modified after his employer obtained videotape depicting the claimant working in his mother s shoe shine shop, and the workers compensation judge found an imputed earning capacity. In Burrell, this Court stated: While the statute requires an employer to offer an available position if one exists, it does not require employer to prove the non-existence of such a position. Nor does the statute preclude a claimant from proving the existence of such a position as a defense to modification. However, we need not decide whether existence of a specific, available position with the employer is part of its burden in modification circumstances. Rather, we hold that where a claimant unilaterally demonstrates residual productive skill, an employer need not address existence of positions it may have as part of its case-in-chief. As previously mentioned, a claimant is always free to inquire into this area as a defense to modification. Burrell, 849 A.2d at 1287. 4 reverse the WCJ s determination that in these circumstances [Employer] was required to establish that it had no specific vacancy. (Opinion of the Board, p. 4.) On appeal,5 Claimant argues that the Board erred in modifying his benefits based upon the erroneous conclusion that Claimant had the burden of establishing the non-existence of an available position at the time Employer s LMS was conducted. Claimant avers that, at the hearing, he raised the issue of the availability of a suitable job with Employer, and, as mandated by this Court in Rosenberg v. Workers Compensation Appeal Board (Pike County), 942 A.2d 245 (Pa. Cmwlth. 2008), once this issue is raised, Employer had the burden of establishing the non-existence of such position, and failed to do so. Employer counters that Claimant offered absolutely no evidence of any modified positions being available with Employer from the time that the Notice of Ability to Return to Work was issued by Employer until the time that it filed its Petition to Modify benefits. Section 306(b)(2) of the Workers Compensation Act, Act of June 2, 1915, P.L. 736, as amended, sets forth the mandatory language on the employer s obligation to provide modified work to an injured workers compensation recipient: 5 This Court s standard of review is limited to determining whether there has been a violation of constitutional rights, errors of law committed, or a violation of appeal board procedures, or whether necessary findings of fact are supported by substantial evidence. Lehigh County Vo-Tech School v. Workmen s Compensation Appeal Board (Wolfe), 539 Pa. 322, 652 A.2d 797 (1995). 5 If the employer has a specific job vacancy the employee is capable of performing, the employer shall offer such job to the employee. 77 P.S. §512(2). Title 34, Section 123.301 of the Pennsylvania Code provides employer s job offer obligation in a Modification Petition as follows: (a) For claims for injuries suffered on or after June 24, 1996, if a specific job vacancy exists within the usual employment area within this Commonwealth with the liable employer, which the employee is capable of performing, the employer shall offer that job to the employee prior to seeking a modification or suspension of benefits based on earning power. (b) The employer s obligation to offer a specific job vacancy to the employee commences when the insurer provides the notice to the employee required by section 306(b)(3) of the act (77 P.S. §512(b)(3)) and shall continue for 30 days or until the filing of a Petition for Modification or Suspension, whichever is longer. ¦ (c) The employer s duty under subsections (a) and (b) may be satisfied if the employer demonstrates facts which may include the following: ¦ (4) No job vacancy exists within the usual employment area. In Rosenberg, after the employer submitted its evidence, the claimant offered uncontroverted, competent evidence that, between the time of the notice of ability to return to work and the filing of the petition for modification, a position with the employer that claimant was capable of performing was announced and filled. The Court in Rosenberg remanded the matter to the workers compensation 6 judge to address, inter alia, the conflict in evidence on suitable work available with the employer, and stated: [W]here, as here, the question of an available, suitable job with the employer is raised with evidence, the employer ignores the question at its peril. As with all other elements necessary to succeed in a modification petition, once the issue is raised by evidence of a possible opening with employer, the employer has the burden of proof. Consistent with the plain language of the Act, once the issue is raised with evidence, satisfaction of this element of proof is a prerequisite to employer s reliance on expert testimony of earning power. Rosenberg, 945 A.2d at 251. Sub judice, we concur with the determination of the Board; after review of the record, we find that Claimant produced no evidence whatsoever of a possible opening with Employer. The Board properly found that Employer was entitled to a modification of benefits. Accordingly, the order of the Workers Compensation Appeal Board is affirmed. ________________________________________ JAMES GARDNER COLINS, Senior Judge 7 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Michael Klosterman, Petitioner : : : v. : : Workers Compensation Appeal Board : (Pike County), : No. 287 C.D. 2008 Respondent : ORDER AND NOW, this 10th day of June, 2008, the order of the Workers Compensation Appeal Board in the above-captioned matter is affirmed. ___________________________________ JAMES GARDNER COLINS, Senior Judge
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