Opinion
No. 1265 C.D. 2013
03-07-2014
Patrick Kranak, Petitioner v. Workers' Compensation Appeal Board (US Airways), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Patrick Kranak (Claimant) challenges the order of the Workers' Compensation Appeal Board (Board) that affirmed in part and reversed in part the decision of the Workers' Compensation Judge (WCJ). The Board affirmed the grant of indemnity benefits from January 7, 2010, through July 21, 2010, reversed the grant of ongoing indemnity benefits, and reversed the award of counsel fees for unreasonable contest.
Claimant suffered a work-related injury to his right shoulder in the course and scope of his employment with US Airways (Employer) on July 23, 2004. Specifically, the WCJ found that Claimant sustained a "right shoulder subacromial impingement, of at least a partial thickness rotator cuff tear of the left leading edge of the supraspinatous tendon, and that claimant should undergo arthroscopic surgery to have the tendon repaired and the acromion flattened." WCJ's Decision, February 27, 2009, Conclusions of Law on Remand, Paragraph 2 at 7; Reproduced Record (R.R.) at 104a. While the WCJ granted Claimant's claim petition, no benefits were awarded as Claimant neither alleged nor proved any disability.
In the original decision, the WCJ reached essentially the same conclusion. Employer appealed to the Board which affirmed. Claimant petitioned for review with this Court which remanded to the Board with instructions to remand to the WCJ due to inconsistencies in the WCJ's findings of fact. US Airways, Inc. v. Workers' Compensation Appeal Board (Kranik), (Pa. Cmwlth. No. 1956 C.D. 2008, filed April 10, 2008).
After Claimant suffered the work-related injury, he continued working for Employer as a baggage handler until he was furloughed from his job in October or November 2004.
On March 8, 2010, Claimant petitioned to reinstate benefits and alleged that he was entitled to a reinstatement due to a worsening of his condition and that the injury caused decreased earning power. Claimant alleged that Employer refused to reinstate Claimant's benefits. Claimant also sought penalties and attorney fees.
Before the WCJ, Claimant testified that he suffered the work-related injury when he "was loading baggage from a carousel into the top level of the bag carts. And I felt a pull in my right shoulder as I was pushing the bag across the -- inside the cart." Notes of Testimony, April 21, 2010, (N.T.) at 9; R.R. at 18a. After Claimant was laid off by Employer, he found work as an electrician with A-Positive Electric (A-Positive). With A-Positive, Claimant wired panels and testified that for the previous two years "I've been bosses on jobs." N.T. at 13; R.R. at 22a. Although surgery was recommended for Claimant, he delayed it because he wanted to make sure that it would be covered by workers' compensation. On January 7, 2010, Claimant underwent shoulder surgery. N.T. at 14; R.R. at 24a. Claimant did not work after the surgery. Other than "night pains" the shoulder did not bother him between October 2004 and the time he had surgery. N.T. at 15; R.R. at 24a. On cross-examination, Claimant explained that he last worked for A-Positive two days before his surgery. He did not know whether he would have a job at A-Positive when he was medically cleared to return to work. N.T. at 18; R.R. at 27a. Claimant also explained that A-Positive was a construction company and that he had been laid off for multiple periods since he started working there. N.T. at 29; R.R. at 38a.
Claimant testified at a later hearing that his physician, Dr. Rodosky released him to return to work when the doctor last examined him on July 21, 2010. Notes of Testimony, September 30, 2010, (N.T. 9/30/10) at 6; R.R. at 50a. Claimant demonstrated that he did not have full mobility of his right arm and experienced tightness in his arm and shoulder when he performed certain movements. N.T. 9/30/10 at 7-9; R.R. at 51a-53a. Claimant was awarded Social Security Disability benefits. There was no work available for him at A-Positive. N.T. 9/30/10 at 12; R.R. at 56a.
Claimant also submitted into evidence an affidavit of legal experience by his attorney, Lawrence R. Chaban (Attorney Chaban), the itemization of time expended by Attorney Chaban, and a bill of costs.
Richard Schubert (Attorney Schubert), an attorney, testified as an expert witness in support of the reasonableness of the hourly rate of $300 charged by Attorney Chaban. On cross-examination, Attorney Schubert admitted that Attorney Chaban was of counsel to his firm. Notes of Testimony, April 7, 2011, at 49-50.
Employer submitted into evidence Claimant's wage statement, the June 19, 2006, hearing transcript from the original proceeding, unemployment compensation records for Claimant on and after January 7, 2010, and an affidavit from Sylvia Guy, Employer's shift manager of station administration in Pittsburgh. The affidavit stated that Claimant was not recalled to work after he was furloughed and that on November 7, 2007, Claimant's separation from Employer became final. Further, Employer had no work available for Claimant. Affidavit of Sylvia Guy, January 4, 2011, Paragraph Nos. 4-9 at 1-2; R.R. at 163a-164a.
The WCJ granted the reinstatement petition and awarded Claimant total disability benefits at the rate of $536.29 per week on and after January 7, 2010, less a credit for unemployment compensation benefits paid during the time total disability workers' compensation benefits were due on and after January 7, 2010, less a deduction of twenty percent attorney's fees to Attorney Chaban. The WCJ also ordered Employer to pay Attorney Chaban's costs of litigation in the amount of $258.24 and to pay Claimant unreasonable contest attorney fees of $4,725.
The WCJ's decision states "January 7, 2011" but that appears to be a typographical error.
The WCJ made the following relevant findings of fact:
15. Resolution of the conflict of evidence, analysis of the evidence and discussion. Based on a weighing of all the evidence in the case, I make the following findings of fact with accompanying discussion:
. . . .
d. Claimant successfully proved in a reinstatement petition he is an injured employee who changed jobs after a work injury and continued to have residual impairment from his work injury. Claimant proved his job was no longer available. According to Bufford v. WCAB (North American Telecom), , 2 A.3d 548 (. . . 2010), claimant has entitlement to reinstatement of workers' compensation benefits from January 7, 2010 and continuing.
e. Claimant proved according to Latta v. WCAB (Latrobe Die Casting Co.), , 642 A.2d 1083 (. . . 1994) and Pieper v. Ametek-Thermox Instruments Division, , 584 A.2d 301 (. . . 1990), claimant had continuing impairment from his June 14, 2004 right shoulder subacromial impingement and at least a partial thickness rotator cuff tear at the leading edge of the supraspinatus tendon and that injury caused the claimant the need to have the tendon repaired and the 'acromion flattened' injury as a result of his June 14, 2004 injury and required the surgery as of January 7, 2010.
f. Landmark Constructors v. WCAB (Costello), , 747 A.2d 850 (. . . 2000) supports claimant's entitled to compensation benefits on and after January 7, 2010 at the time of undergoing surgery as a result of his work injury. Since claimant [actually, employer] has the burden of proving work availability if there is no evidence of full recovery. Even acknowledging Landmark Constructors, an interpretation of the Workers' Compensation Act as it existed before the amendments of Act 57 of 1996, employer failed to prove claimant had earning power according to Section 306(b)(2) of the Workers' Compensation Act, and the burden of proving
work availability, although not the entire statutory scheme on and after the effective date of Act 57 of 1996, still places on the employer the burden of proving claimant's earning power from the standpoint of claimant's impairment from his work injury. (Emphasis in original).WCJ's Decision, May 11, 2011, Findings of Fact Nos. 15 at 13-14; R.R. at 202a-203a.
Employer appealed to the Board and contended that the WCJ erred as a matter of law by awarding ongoing benefits and in awarding unreasonable contest attorney fees. The Board agreed and affirmed the grant of benefits from January 7, 2010, through July 21, 2010, reversed the grant of ongoing benefits and reversed the award of counsel fees for unreasonable contest. The Board reasoned:
Where a claimant immediately returns to work without a wage loss but later claims disability . . . the proper procedure appears to turn on whether the claimant returned to his pre-injury job. If he did, a claim petition, with its attendant burdens of proof, is the correct petition. . . . Conversely, if the claimant returned to light duty work immediately after his work injury, his wage loss benefits will be deemed to be in suspension status and he may later establish disability under the burdens associated with a reinstatement petition. . . . Nevertheless, strictness of pleading is not required in workers' compensation matters and a claimant is entitled to whatever relief the credible evidence shows. . . .
A claimant seeking a reinstatement of suspended indemnity benefits must prove that his earning power is once again adversely affected by his work-related injury, and that such a disability is a continuation of that which arose from his original claim. . . . The testimony of the claimant alone, if believed, is sufficient to support a finding that his disability continues and shift the burden to the defendant to prove the contrary. . . .
Upon review, we agree with Defendant [Employer] that Claimant is entitled to reinstatement of indemnity benefits for the closed period beginning with his work-related surgery and ending with his release to full duty on July 21, 2010. Claimant had previously established an injury and an immediate return to his pre-injury job with Defendant [Employer]. Therefore, his petition is tantamount to a claim petition, where Claimant has the burden of proving disability and the duration of disability. . . .
The injury was established in the previous proceeding. Defendant [Employer] agreed that Claimant's 2010 surgery was work-related, and a period of disability following surgery is obvious. . . . Claimant testified that he was released to return to full duty as of July 21, 2010. Therefore, Claimant met his burden of proving a loss of earnings causally connected to his work injury only up to and including July 21, 2010. . . .
The result does not change under a reinstatement analysis. Under Bufford, the burden shifts to Defendant [Employer] to show that Claimant's loss of earnings was not caused by the work-related injury. A party's burden may be met where the necessary proof is introduced by his adversary. . . . Claimant's release to full duty establishes that any loss of earnings was no longer attributable to his work-related injury after July 21, 2010.
We cannot agree that Landmark Constructors v. WCAB (Costello), , 747 A.2d 850 (. . . 2000) controls here. In Costello the employer filed a termination petition, which was granted by the WCJ. We initially modified the WCJ's decision to a suspension, then on rehearing determined that a suspension was not appropriate because there was no evidence of job availability. The Commonwealth Court reversed our second decision and reinstated the suspension, and the Supreme Court granted allocator to determine the employer's burden in support of a suspension where the employee is medically able to return to his or her pre-injury position without restriction but is not fully
recovered. Under those facts, the court held that a showing ofjob availability is required.Board Opinion, June 26, 2013, at 2-3, and 5-7; R.R. at 209a-210a, and 212a-214a. Because Employer's challenge to the duration of disability benefits was reasonable, the Board reversed the award of counsel fees for unreasonable contest.
In Costello, therefore, the burden was on the employer all along as the party seeking to change the status quo. We see no benefit to be derived from introducing the burdens attendant upon a suspension or modification petition where the burden is already established as Claimant's burden under a claim petition. . . . Claimant's position here is analogous to that of the claimant in Harle v. WCAB (Telegraph Press), , 658 A.2d 766 (. . . 1995). There, the claimant returned to work at the same job for a different employer at lower wages. The court concluded that any difference between his pre-injury and post-injury earnings was due to factors other than his work-related injury, and that therefore a suspension was appropriate. . . .
The Costello court characterized Harle's loss of earnings as the product of 'the economic reality that his previous employer went out of business,'. . . and observed that Harle's return to work removed the necessity for production of evidence of job availability. Claimant here testified to an ongoing employment relationship with A-Positive of approximately five years' duration, characterized by periodic layoffs due to the nature of the construction business. Any loss of earnings after July 21, 2010, when he was released to return to full duty work, cannot be attributed to his work-related injury, therefore, a suspension of indemnity benefits is appropriate. Consequently, we reverse the WCJ's award of indemnity benefits after July 21, 2010. (Citations and footnotes omitted).
Claimant contends that the Board erred when it recast the burden of proof in the reinstatement petition as one involving a claim petition and ignored applicable precedent of our Pennsylvania Supreme Court. Claimant also contends that the Board erred when it reversed the award of attorney fees for unreasonable contest as Employer failed to meet its burden of proof that the denial of benefits was, at least in part, unreasonable.
This Court's review is limited to a determination of whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence, or whether constitutional rights were violated. Vinglinsky v. Workmen's Compensation Appeal Board (Penn Installation), 589 A.2d 291 (Pa. Cmwlth. 1991).
Initially, Claimant contends that the Board had no basis to place the ultimate burden of proof on Claimant to show job availability by changing the pleading to a claim petition from a reinstatement petition and by requiring Claimant to establish that he maintained his disability status during the pendency of the reinstatement petition. Claimant argues that once he established that he was entitled to a reinstatement of benefits it was Employer's burden to establish that benefits should be suspended or terminated.
A claimant who seeks reinstatement following a suspension of benefits must prove that: (1) through no fault of his own, the claimant's disability, i.e., earning power, is again adversely affected by the work-related injury, and (2) the disability which gave rise to the original claim continues. Pieper v. Ametok-Thermox Instruments, 526 Pa. 25, 584 A.2d 301 (1990).
In Teledyne McKay v. Workmen's Compensation Appeal Board (Osmolinski), 688 A.2d 259, 262 (Pa. Cmwlth. 1997), this Court set forth the burden of proof in a reinstatement petition:
Where a claimant returns to work under a suspension, with restrictions, that is, does not return to his time-of-injury job, but rather to a modified position, and is subsequently laid off and petitions for the reinstatement of benefits, the claimant is also entitled to a presumption that his or her disability, i.e., the loss of earning power, is causally related to the continuing work injury. . . .
Conversely, where a claimant returns to work under a suspension, without restriction, to his or her pre-injury job, is subsequently laid off, and then petitions for reinstatement, the claimant has the burden to affirmatively establish that it is the work-related injury which is causing his or her present loss of earnings. That is, while the claimant still enjoys the presumption that his or her present disability, i.e. loss of earnings, is causally related to that work injury. (Footnote and citations omitted).
In Soja v. Workers' Compensation Appeal Board (Hillis-Carnes Engineering Associates, 33 A.3d 702 (Pa. Cmwlth. 2011), petition for allowance of appeal denied, 617 Pa. 642, 54 A.3d 51 (2012), this Court addressed a situation similar to the present case. Brian Soja (Soja) worked as a manual laborer for Hillis-Carnes Engineering Associates (Hillis-Carnes). Soja suffered a work-related injury to his lower back which aggravated the underlying degenerative disc disease in his lower back. Hillis-Carnes accepted the injury under a notice of compensation payable, and Soja soon returned to work. In January 2006, while he worked for a different employer as a truck driver, Soja sneezed and exacerbated his earlier work-related back injury. Hillis-Carnes accepted liability for the injury and paid disability benefits for one month. Soja's benefits were then suspended. In April 2006, Claimant started working for Liberty Linehaul West as a truck driver. In October 2006, while he bent over to tie his shoe, Soja experienced intense pain in his back that radiated down his left leg and into his foot. Soja petitioned to reinstate benefits. Soja, 33 A.3d at 703-704.
Soja testified regarding his ongoing disability and physical condition. He also presented medical evidence which stated that he was unable to return to work due to the original injury. Soja, 33 A.3d at 704.
Hillis-Carnes presented medical testimony which indicated that Soja's current disc problems were unrelated to the original injury. Hillis-Carnes also presented a surveillance videotape filmed on April 24, 2008, the day Soja testified before the WCJ. In the videotape Soja climbed out of his truck without difficulty and did not use a cane to walk around a salvage yard. Soja lay on the ground to remove a part from the bottom of a van and tightened the lug nuts on a tire his friend changed. As he tightened the nuts, he bent and twisted his body. He was also seen jumping into the back of the truck and throwing auto parts into it. Soja, 33 A.3d at 705.
The WCJ concluded that as of November 1, 2006, Soja was disabled from performing his usual occupation as a truck driver due to his pain related to his original 2005 work-related injury. The WCJ reinstated benefits from November 1, 2006, through April 23, 2008. The WCJ suspended benefits as of April 24, 2008, the date of the surveillance video. The WCJ reasoned that Claimant failed to establish a continued inability to work as of the day of the videotape. Soja appealed to the Board which affirmed. Soja, 33 A.3d at 705-706.
Soja petitioned for review with this Court and raised the issue that the Board did not apply the correct burden of proof because once he established disability, the burden shifted to Hillis-Carnes to prove that his continued loss of earnings was not caused by his work-related injury. Soja, 33 A.3d at 706.
Soja also raised an issue regarding the surveillance video which is not relevant to the present matter.
This Court affirmed:
[I]t was Claimant's [Soja] reinstatement petition for 'temporary total disability' that was at issue. Claimant [Soja] attempted to meet his burden with expert and lay testimony, all of which was found incredible as of April 24, 2008. Claimant [Soja] argues that this credibility determination is irrelevant. He proved a recurrence of a disability as of November 1 2006, and Claimant [Soja] argues that he did not have a burden to show that the disability persisted through the reinstatement proceeding. Rather, Claimant [Soja] argues that it became Employer's [Hillis-Carnes] burden to prove when the disability ended.
When an injured worker files a claim petition, it is his burden to 'demonstrate not only that he has sustained a compensable injury but also that the injury continues to cause disability throughout the pendency of the claim petition proceeding.'. . . In a claim petition proceeding, the burden never shifts to employer to show that the disability has ceased or been reduced.
When an injured worker petitions for reinstatement, he needs to establish that 'his or her earning power is once again adversely affected by his or her disability, and that such disability is a continuation of that which arose from his or her original claim.' Bufford v. Workers' Compensation Appeal Board (North American Telecom), 606 Pa. 621, 637, 2 A.3d 548, 558 (2010). A
reinstatement petition may be prompted by a number of circumstances. Here, Claimant [Soja] asserted that his disability was caused by pain when he aggravated his 2005 injury while tying his shoe. In Bufford, the claimant sought a reimbursement of total disability when the employer ended his light duty job. Because every reinstatement is different, the claimant's burden of proof will be different. . . .Soja, 33 A.3d at 707-709.
. . . .
Here, Claimant [Soja] sought 'temporary total disability,' and he proved that as of November 1, 2006, his back and leg pain rendered him unable to work. His medical evidence correlated that pain to his 2005 work injury. Such evidence was appropriate to support reinstatement. . . . Claimant [Soja] argues that once he met that burden, he was entitled to continued total disability unless and until Employer [Hillis-Carnes] showed that his loss of earnings was not caused by his 2005 injury. We disagree.
. . . .
Employer [Hillis-Carnes] did not have a burden of proof in this reinstatement petition, unlike a reinstatement where the claimant's light duty job has ended, as in Bufford, 606 Pa. 621, 2 A.3d 548. . . .
Here, the factual issue in the reinstatement petition was whether the Claimant's [Soja] loss of wages was caused by on-going pain. Given this issue, we agree with the Board that it was Claimant's [Soja] burden to prove that the pain has persisted, not dissipated, through the pendency of the reinstatement proceeding. Indeed, Claimant [Soja] offered evidence to prove a continuing disability. When that evidence was found to be false, Claimant [Soja] argued that proof of disabling pain for a single day, November 1, 2006, shifted the burden to Employer [Hillis-Carnes] to prove a cessation of pain. Claimant [Soja] cites no precedent to support that broad proposition. The nature of the reinstatement and the issue raised therein determines the burden of proof. Here, Claimant's [Soja] evidence did not prove a continuation of disabling pain through the pendency of the reinstatement petition. (Citation and footnotes omitted).
Although Soja is somewhat different factually than the present case, it shows that in certain situations a claimant who seeks a reinstatement of benefits must establish disability through the pendency of the reinstatement petition. The holding in Soja illustrates that an employer does not necessarily have to establish job availability to halt continuing benefits in a reinstatement situation. Here, Claimant never established disability prior to the filing of the reinstatement petition. He returned to work at his time of injury job and neither alleged nor proved any disability in the claim petition. Claimant continued to work his full duty job as a baggage handler from July 23, 2004, the date of injury, until he was laid off on November 7, 2004, as part of a companywide downsizing. He then found work with A-Positive where he worked for approximately five years before his shoulder surgery on January 7, 2010. Employer agreed that Claimant was entitled to benefits from the date of his shoulder surgery until the date he was released to full duty work. It was Claimant's burden to establish his entitlement to a reinstatement of benefits.
In Folk v. Workers' Compensation Appeal Board (Dana Corporation), 802 A.2d 1277 (Pa. Cmwlth.), petition for allowance of appeal denied, 572 Pa. 713, 813 A.2d 846 (2002), this Court affirmed the denial of a reinstatement petition because Allen Folk could not establish that his layoff was caused by his work-related injury. Similarly, here Claimant did not establish that his work-related injury affected his earning power after July 21, 2010, the date he was released to full duty work by his surgeon. This Court agrees with the Board's reasoning.
Claimant's reliance on Bufford v. Workers' Compensation Appeal Board (North American Telecom), 606 Pa. 621, 2 A.3d 548 (2010) is misplaced. In Bufford, Terry Bufford (Bufford) sought a reinstatement of benefits, after suffering a work-related injury and receipt of temporary total disability benefits. Bufford returned to work at a modified light duty position with his time of injury employer, North American Telecom (NAT) and his benefits were reduced to partial. Approximately five months later, Bufford took a new job with Ronco Machine (Ronco) at a higher rate of pay and less demanding physical job requirements. Bufford's benefits were suspended. After he worked four and one-half years with Ronco, Bufford was laid off for economic reasons. At that point NAT had closed the facility where Bufford had worked and left the area. Bufford petitioned to reinstate benefits and claimed that his work-related injury had worsened and that his loss of earning power was once again affected. The WCJ denied the petition on the basis that Bufford had not established that his condition worsened and that any loss of earning power was attributable solely to the fact that he had had been laid off by Ronco. The Board and this Court affirmed. Bufford, 606 Pa. at 624-626, 2 A.3d at 550-551. Our Pennsylvania Supreme Court reversed and remanded to this Court. The Supreme Court determined that it was Bufford's burden to establish that his earning power was once again affected by his disability and that the disability was a continuation of that which arose from his original claim. Once a claimant does that, the employer must show that the claimant's disability was not caused by the disability arising from the work-related injury. Bufford, 606 Pa. at 637, 2 A.3d at 558.
Here, Claimant never established disability prior to the reinstatement petition as Bufford did. Claimant needed to prove disability in a manner akin to a claim petition. Also, it is not clear from the record whether or at what time Claimant's employment with APositive terminated.
Further, this Court agrees with the Board's analysis regarding the inapplicability of Landmark Constructors, Inc. v. Workers' Compensation Appeal Board (Costello), 560 Pa. 618, 747 A.2d 850 (2000) because that case involved a termination petition and it was the employer's burden at all times.
Claimant also contends that the Board erred when it reversed the award of attorney fees for unreasonable contest.
Section 440(a) of the Workers' Compensation Act, 77 P.S. §996(a), provides:
Act of June 2, 1915, P.L. 736, as amended. This Section was added by the Act of February 8, 1972, P.L. 25. --------
In any contested case where the insurer has contested liability in whole or in part, including contested cases involving petitions to terminate, reinstate, increase, reduce or otherwise modify compensation awards, agreements or other payment arrangements or to set aside final receipts, the employe... in whose favor the matter at issue has been finally determined in whole or in part shall be awarded, in addition to the award for compensation, a reasonable sum for costs incurred for attorney's fee, witnesses, necessary medical examination, and the value of unreimbursed lost time to attend the proceedings: Provided, that cost for attorney fees may be excluded when a reasonable basis for the contest has been established by the employer or the insurer.
An employer's contest is reasonable if the contest was brought to resolve a genuinely disputed issue, not merely to harass the claimant. Dworek v. Workmen's Compensation Appeal Board (Ragnar Benson, Inc.), 646 A.2d 713 (Pa. Cmwlth. 1994). The imposition of attorney fees is a question of law reviewable by the Board and this Court. McGoldrick v. Workmen's Compensation Appeal Board (Acme Markets, Inc.), 597 A.2d 1254 (Pa. Cmwlth. 1991).
Here, there was a genuinely disputed issued as to the duration of Claimant's disability. An employer may contest a claim in order to ascertain the proper period of disability. Striker v. Workmen's Compensation Appeal Board (California University of Pennsylvania, 650 A.2d 1109 (Pa. Cmwlth. 1994). The Board did not err when it determined Employer's contest was reasonable.
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 7th day of March, 2014, the order of the Workers' Compensation Appeal Board in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge