IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Interforest Corporation and Broadspire, : Petitioners : v. : No. 940 C.D : Submitted: October 24, 2014 Workers Compensation Appeal : Board (Phillips), : Respondent : BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE BROBSON FILED: February 4, 2015 Petitioners Interforest Corporation, and its workers compensation insurance carrier, Broadspire, (collectively Employer) petition for review of an order of the Workers Compensation Appeal Board (Board). The Board affirmed the decision of a Workers Compensation Judge, which denied Employer s petition for modification or suspension of the workers compensation benefits of Ronald Phillips (Claimant). 1 We affirm the Board. 1 The record indicates that Claimant and Employer entered into a compromise and release agreement in March 2012, whereby Claimant accepted a lump sum payment in exchange for wage-loss benefits for his identified work injury. The WCJ also considered and denied a claim petition filed by Claimant, through which Claimant sought to add an injury to the one previously identified. Based upon the compromise and release agreement, Claimant has elected not to participate in this appeal.

2 On December 13, 2005, Claimant sustained an injury to his neck in the course of his employment with Employer. Following litigation of a claim petition regarding the injury, a workers compensation judge issued a decision in August 2007, identifying Claimant s work-related injury as a disc herniation at C5-6, and Claimant began to receive wage-loss benefits of $ per week. On or about May 17, 2010, Employer filed its petition to modify or suspend Claimant s benefits. Employer asserted that Claimant s disability had changed based on the allegation that Claimant was physically capable of work. Employer contended that Claimant had refused an offer of available work or had sabotaged the work opportunity. (Reproduced Record (R.R.) at 1a.) Claimant filed a response to the petition, denying the allegations. As will be discussed below, our resolution of Employer s appeal rests upon Claimant s alleged inability to read and write. In support of its modification/suspension petition, Employer offered the deposition testimony of J. William Bookwalter, M.D., who is a board-certified neurosurgeon. Dr. Bookwalter testified that Claimant had not fully recovered from his work-related injury, but that Claimant is capable of light-duty work. Dr. Bookwalter reviewed job descriptions of positions as security guards with various responsibilities and opined that Claimant was capable of performing the security jobs. Employer also submitted the deposition testimony of Teri Soyster, an on-the-job training manager and rehabilitation specialist working for Associates in Rehabilitation. Ms. Soyster testified that her job entails working with employers who are seeking to place injured employees into positions where new employers are willing to provide on-the-job training to injured employees (paid for by the 2

3 liable employer or workers compensation insurer). (R.R. at 329a-30a.) Ms. Soyster testified that one employer she uses for such purposes is Youghioghenny Valley Specialty Service (YVSS), which is a security company. (R.R. at 331a.) In evaluating possible jobs for Claimant, Ms. Soyster testified that she reviewed sedentary to light duty positions and located such positions through YVSS. (R.R. at 337a.) The positions with YVSS would require Claimant to perform covert surveillance duties or regular security duties. With regard to Ms. Soyster s understanding of Claimant s non-physical limitations, i.e., intellectual limitations, she acknowledged having received information in a rehabilitation report generated on November 17, 2009, indicating that Claimant reported that he is unable to read or write. (R.R. at 335 (testimony regarding content of report); R.R. at 358a (Report).) Ms. Soyster also testified as follows during cross-examination: Q. But, of course, you did know that he had only a 10 th grade, I believe, education, and wasn t able to read and write; is that right? A. I think it was 11 th grade, but yes, I did. (R.R. at 345a-46a.) The job descriptions which Ms. Soyster reviewed and to which she referred Claimant specifically indicate that note-taking is required for one of the YVSS positions. (R.R. at 361a.) Ms. Soyster testified that she scheduled an appointment for Claimant with Dennis Moriarty, who works for YVSS. Mr. Moriarty testified that he conducted a telephone interview with Claimant, during which Claimant told him that he, Claimant, would be unable to work for YVSS because he could not read or write. (R.R. at 298a.) Mr. Moriarty testified that, in order to perform the duties of either of the job positions for which 3

4 Claimant was directed to interview, a successful candidate would have to be able to read and write. (Id.) Claimant testified that he is not able to read or write. (R.R. at 509a.) Claimant testified before the WCJ regarding his telephone interview with Mr. Moriarty: Q. What did you tell him? A. I told him I asked him about the job. Then he said I would have to go back if I caught somebody I would have to go back and fill out forms. I said, sir, I can t read and write. He said you are not qualified for the job then..... Q. Did you tell him that you didn t want the job? A. No. (R.R. at 512a.) Claimant also testified that he had to take an oral drivers examination test, that he only completed eleventh grade, and that he did not have a Graduate Equivalency Diploma. (R.R. at 518a-19a.) Claimant also submitted a letter written by his fifth grade teacher, Donna Campbell. Ms. Campbell stated that Claimant had been mainstreamed into her classroom from a special education class for students with multiple handicaps, including learning disabilities. (R.R. at 91a.) Ms. Campbell stated that she recalled he had a severe learning disability, he was challenged by written work and had a reading problem, and his comprehension was practically nil. (Id.) Ms. Campbell stated that in her opinion his cognitive/reading abilities were extremely limited. (Id.) The WCJ found Claimant credible. Based upon the evidence in the record, the WCJ determined that although Claimant was physically capable of performing security work at YVSS, Claimant was unable to accept the job because 4

5 he is illiterate. The WCJ specifically determined that Claimant would not have been able to perform the security work available at YVSS. Based upon the findings, the WCJ concluded that Employer failed to submit sufficient evidence of available work that Claimant is capable of performing. (Conclusion of Law no. 2.) The Board rejected Employer s claim that the WCJ erred in denying its modification petition and distinguished the decision of this Court upon which Employer relied Mariani and Richards v. Workmen s Compensation Appeal Board (Kowalecki), 652 A.2d 420 (Pa. Cmwlth. 1994). The Board based its conclusion upon the fact that Claimant in this matter actually applied for the jobs to which Employer had directed him and upon Claimant s credited testimony that he would not be able to complete necessary reports because of his illiteracy. In this appeal, 2 Employer argues that the evidence in the record is insufficient as a matter of law to support Claimant s assertion that he is illiterate, such that he could not accept the work available at YVSS. The long-standing general principle set forth in Kachinski v. Workmen s Compensation Appeal Board (Vepco Construction Company), 532 A.2d 374 (Pa. 1987), 3 requires an employer to demonstrate the following: (1) a claimant s physical condition has changed based 2 Our review is limited to considering whether necessary factual findings are supported by substantial evidence and whether an error of law was committed. 2 Pa. C.S Our General Assembly, in adopting Section 4 of the Act of June 24, 1996, P.L. 57, 77 P.S. 512, lessened the previous burden imposed on employers seeking a modification of benefits, by permitting employers to provide evidence of earning power through expert opinion evidence, including job listings with employment agencies and advertisements. When, however, as in this case, an employer seeks a modification of benefits based upon evidence of a referral to an available and suitable job, the standard set forth in Kachinski still applies. Channellock, Inc. v. Workers Comp. Appeal Bd. (Reynolds), 72 A.3d 731, 742 n.9 (Pa. Cmwlth. 2013). 5

6 upon credible medical evidence; and (2) employer has referred the claimant to jobs the claimant is capable of performing i.e. available jobs. 4 Kachinski, 532 A.2d at 380. If, however, an employer bases a modification petition on a claim that a claimant is capable of performing a particular job, rather than on a claim that the claimant has recovered part or all of his ability, the employer need not satisfy the first prong of Kachinski to demonstrate a change in condition. Mendes v. Workers Comp. Appeal Bd. (Lisbon Contractors, Inc.), 981 A.2d 334 (Pa. Cmwlth. 2009). In this matter, it appears that Employer based its modification petition upon its claim that Claimant could perform the jobs available. Consequently, the first prong of Kachinski is not at issue here. Thus, under Kachinski, Employer only had the burden to demonstrate that a job was available to Claimant. In order to satisfy the burden of showing job availability, an employer must establish that a job to which an employer refers a claimant is within the particular claimant s vocational abilities as well as his physical capabilities: A job is not considered actually available to a claimant unless it can be performed by the claimant, having regard to his physical restrictions and limitations, his age, his intellectual capacity, his education, his previous work experience, and other relevant considerations.... Kachinski A.2d at 379. Thus, a job that is not within a claimant s vocational abilities, i.e., one which a claimant lacks the ability to perform, does not trigger a claimant s duty under Kachinski to follow through on the job in good faith. 4 The burden shifts to a claimant under Kachinski to show that he or she followed through on an employer s job referrals in good faith only if an employer demonstrates that suitable jobs were available to a claimant. Kachinski, 532 A.2d at

7 Fontaine v. Workers Comp. Appeal Bd. (Philip Fountain & Son), 739 A.2d 628, 634 (Pa. Cmwlth. 1999) (emphasis added). Thus, Employer bore the initial burden to demonstrate that the jobs to which it referred Claimant were ones that fell within his intellectual abilities as well as his physical capabilities. 5 In this case (1) Employer s vocational consultant testified that she knew that Claimant could not read or write, and (2) the consultant, despite knowing that Claimant believed he lacked the ability to read or write, did not conduct any testing to determine Claimant s reading and writing abilities. Instead, the consultant referred Claimant to a job that specifically required the ability to take notes. And, on these grounds, Employer contends that it satisfied its burden to prove the suitability of the referred jobs and asks this Court to reverse the Board s order. We disagree. Employer relies upon this Court s decision in Kowalecki. In Kowalecki, this Court addressed an employer s appeal of a Board order, affirming a referee s decision denying the employer s modification petition. One of the issues on appeal was whether the referee erred in finding that the job referrals the employer provided to the claimant were not suitable in light of the claimant s limited abilities, i.e., whether the employment was available under Kachinski. 5 In this Court s pre-kachinski decision in Lopez v. Interstate Container Corporation, 421 A.2d 1248 (Pa. Cmwlth. 1980), we concluded that modification of benefits was appropriate based upon job availability where the evidence indicated that the claimant could physically perform the work proposed, but the claimant asserted that he could not fill out the applications in English (which was not his first language). The decision in Lopez hinged on the evidence in the record, which included evidence the employer submitted, indicating that the claimant had resided in the country for twenty years and his supervisors testimony that the claimant had a sufficient command of the English language to perform the proposed jobs. Lopez, 421 A.2d at

8 With regard to the question of whether the employer had referred Claimant to suitable jobs, the Court rejected the referee s finding that the jobs were not suitable to the claimant: We disagree with this finding. The referee found as a fact that [the c]laimant was barely literate and unable to write or spell, however, there is no evidence in the record, other than [the c]laimant s own statements, which could have led the referee to this conclusion. Indeed, the record reveals no evidence which reflected [the c]laimant s actual literacy level. Id. at 424. While recognizing that a workers compensation judge (or referee as such adjudicators were then known) is the ultimate fact finder, the Court concluded that it could find no evidence in the record to show that [the c]laimant is unable to perform the duties necessary concerning any of the six positions [to which the e]mployer referred [the c]laimant. Id. At first glance, it appears that the Court placed the burden of proof as to job availability on the claimant, but such is not the case. A closer review suggests that other factors discussed below led the Court to its ultimate conclusion regarding the merits of the employer s modification petition. This matter is distinguishable from Kowalecki in a number of ways. First, here, Employer offered no evidence that, despite being aware of Claimant s alleged illiteracy, it considered Claimant s literacy levels or tested them. Kowalecki, the Court noted that the employer had hired a vocational consultant who testified that the claimant told her that he had only completed school up through eighth grade but that he had not revealed to her that he had a deficiency with regard to reading and writing. The consultant also testified that, if the claimant had indicated such a deficiency, she would have tested him to determine the level of any deficiency. Id. The Court also reiterated that the only evidence 8 In

9 concerning [c]laimant s alleged illiteracy is his own testimony in which he stated that he could not perform the duties of the six positions presented to him. However, [c]laimant failed to apply for any of the positions, therefore making no attempt to ascertain the responsibilities associated with these positions. Id. (emphasis added). The Court in Kowalecki did not discuss the question of job availability in the context of an employer s burden to prove job suitability, nor did it provide decisional authority for the proposition that a claimant s own testimony regarding his or her inability to read or write, if deemed credible by the fact finder, is insufficient to support a finding of fact relevant to the question of job suitability. Because the claimant did not provide the employer with the knowledge of his potential limitations, the claimant essentially denied the employer an opportunity to evaluate his actual levels of verbal competency. Accordingly, it was reasonable to conclude that the claimant s testimony alone was insufficient, likely, in part, because his testimony was non-specific regarding the level of his illiteracy. In this case, Employer s rehabilitation consultant was aware of Claimant s assertion that he could not read or write, and the consultant never evaluated the question of whether the jobs would be suitable for someone who could not read or write, even though at least one of the two jobs required note-taking. The facts in Kowalecki do not alter Employer s burden in this case to show that the jobs to which it referred Claimant were jobs that he can perform. While evidence an employer submits to satisfy the burden could shift the burden of persuasion to a claimant, in a matter such as this one, where an employer presents no evidence about a disclosed alleged literacy limitation, the burden of persuasion 9

10 does not shift to a claimant to show that his reading and writing limitations made the jobs unsuitable. Thus, we conclude that there are factual and legal distinctions between Kowalecki and this case such that Kowalecki is not dispositive of this matter. 6 Here, Employer knew that Claimant had asserted he could not read or write which we conclude is a vocational characteristic encompassed by Kachinski. Rather than establish that Claimant could perform the note-taking or other verbal requirements of the jobs, Employer offered no evidence indicating that Claimant could perform the jobs in that pivotal respect and now seeks to shift the burden to Claimant to prove that the jobs are not suitable. Such a result would conflict with the principle that vocational consultants are expected to advise a potential employer of any disability that might prevent a claimant from performing a referred job. Brown v. Workmen s Comp. Appeal Bd. (Cooper Jarrett, Inc.), 616 A.2d 121 (Pa. Cmwlth. 1992), appeal denied, 621 A.2d 582 (Pa. 1993). In this case, Ms. Soyster knew of Claimant s alleged inability but sent him to the interview without advising Mr. Moriarty. 7 6 We also note that although the description of one of the two jobs to which Employer referred Claimant does not specifically indicate that reading or writing are required, Employer should have more fully investigated that job once it knew of a potential limitation of Claimant s abilities. Mr. Moriarty s testimony confirmed that reading and writing ability is required for both jobs. 7 This matter appears to be more analogous to a modification case where an employer proposes jobs that are beyond the reasonable transportation means of a claimant. When proposing possible job referrals an employer must take such factors into consideration. In those instances, part of the employer s burden to demonstrate a job is available is to show that it is not unreasonable to require a claimant to travel a particular distance from his residence. Marinelli v. Workmen s Comp. Appeal Bd. (Jetnet Corp.), 525 A.2d 883 (Pa. Cmwlth.), appeal denied, 35 A.2d 1059 (Pa. 1987). In Marinelli, we relied upon Yellow Freight System, Inc. v. (Footnote continued on next page ) 10

11 Because we conclude that Employer failed to satisfy the second Kachinski prong, the burden to prove good faith follow-through on referrals never shifted to Claimant. 8 Accordingly, we agree with the Board s conclusions and affirm the Board s order. P. KEVIN BROBSON, Judge (continued ) Workmen s Compensation Appeal Board, 377 A.2d 1304 (Pa. Cmwlth. 1977), for the proposition that an employer bears the burden to show that a job is in fact within reach of a claimant. Marinelli, 525 A.2d at 885 (quoting Yellow Freight Systems, 377 A.2d at 1306). 8 Although perhaps not relevant to Claimant s current reading ability, we note that the record includes various school records, such as psychological testing reports conducted when Claimant was chronologically nine years of age, referencing the Revised Stanford-Binet Intelligence Scale Form L, revealing, inter alia, an IQ score of 78 and a reading level of grade

12 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Interforest Corporation and Broadspire, : Petitioners : v. : No. 940 C.D : Workers Compensation Appeal : Board (Phillips), : Respondent : O R D E R AND NOW, this 4th day of February, 2015, the order of the Workers Compensation Appeal Board is hereby AFFIRMED. P. KEVIN BROBSON, Judge