IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Joseph DeBruno, : Petitioner : : v. : No C.D : Workers Compensation Appeal : Board (Express Scripts), : Respondent : : Express Scripts, : Petitioner : : v. : No C.D : Submitted: April 25, 2014 Workers Compensation Appeal : Board (DeBruno), : Respondent : BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE BROBSON FILED: July 2, 2014 In these consolidated cross-appeals, Claimant Joseph DeBruno (Claimant) and Employer Express Scripts (Employer) filed petitions for review of an order of the Workers Compensation Appeal Board (Board). The Board affirmed the decision of the Workers Compensation Judge (WCJ). The WCJ granted Claimant s review petition in part, ordering the amendment of a Notice of Compensation Payable (NCP) to include among Claimant s work-related injuries a

2 herniated disc at C6-7 and bilateral radiculopathy, the latter of which had resolved (review petition). The WCJ denied Claimant s review petition to the extent Claimant sought to add certain lumbar injuries to the NCP. The WCJ also dismissed several petitions filed by Employer: (1) a termination petition; (2) a modification/suspension petition based upon evidence of a labor market survey (LMS petition); and (3) a second modification/suspension petition based upon a job offer Employer made to Claimant as of May 6, We affirm the Board s order. Employer issued an NCP on July 20, 2007, accepting liability for Claimant s July 10, 2007 work-related injury, identified as contusion/strain to the left shoulder and neck as a result of a fall. 1 (Finding of Fact (F.F.) no. 1.) Thereafter, Employer and Claimant filed the following petitions, identified by approximate filing date: July 15, Employer filed its LMS petition, contending that, based upon a labor market survey performed by Jeffrey M. Nocera, Claimant was capable of returning to work as of March 3, July 30, Claimant filed his review petition. October 20, Employer filed its termination petition. October 26, Claimant filed a penalty petition. February 24, Employer filed a suspension petition based upon Employer s claim that on or about November 6, 2009, it 1 A video included in the record captured Claimant s fall. From viewing the video it appears that Claimant fell from a second-story warehouse balcony area onto items stacked on a palette below. At various times Claimant told medical providers that he fell approximately ten or more feet. Claimant appears to acknowledge that he did not fall that far. 2

3 offered Claimant an existing and available job allegedly within his capabilities. May 20, Employer filed a modification/suspension petition based upon a job Employer offered to Claimant on May 6, 2010, with an effective date of May 17, During a hearing on January 14, 2010, the WCJ accepted into the record evidence Employer offered in support of its LMS petition, including: (1) correspondence regarding the verification of Employer s vocational expert, Mr. Nocera; (2) Mr. Nocera s deposition testimony; and (3) the deposition testimony taken by Employer of Claimant for the purpose of its LMS petition. The WCJ conducted her next hearing on February 16, By that date, Employer had filed its termination petition. The evidence introduced during that hearing pertained primarily to Employer s LMS petition. Employer offered the live testimony of Christine Temple, a Human Resources Generalist in Employer s human resources department. 3 Ms. Temple testified that on November 6, 2009, Employer sent Claimant an offer of employment for his previous job as a warehouse assistant. On June 22, 2010, the WCJ held a hearing, during which both Claimant and Ms. Temple again testified. Both Claimant and Employer submitted deposition testimony of medical experts. The WCJ found that, in addition to the injuries identified in the original NCP, Claimant also suffers from cervical radiculitis and herniated discs at C6-C7 as a result of his work-related injury, but that Claimant s bilateral C5-C7 radicuploathy had resolved. The WCJ did not find, however, that Claimant suffered any injury to his lumbar region. Thus, the WCJ amended the NCP to include only Claimant s herniated discs at C6-C7 and his bilateral C5-C7 radiculopathy, the latter of which the WCJ deemed to have been resolved. The WCJ, finding Claimant s medical expert only credible in part, also concluded that

4 Claimant was capable of sedentary work as long as Claimant is permitted to change positions as needed, but that Claimant had certain physical restrictions on bending, lifting, reaching, and squatting. The WCJ denied Claimant s penalty petition. With regard to Employer s termination and modification/suspension petitions, the WCJ denied all of Employer s petitions. The WCJ concluded that: (1) Employer failed to establish that all of Claimant s disability had ceased as of March 23, 2009; (2) Employer failed to establish that it offered Claimant suitable employment within his physical limitations; and (3) she, the WCJ, could not consider the labor market survey upon which Employer s LMS petition was based, because she concluded that Mr. Nocera, who conducted the labor market survey, failed to comply with a relevant regulatory provision 34 Pa. Code (a). Both Claimant and Employer appealed to the Board, which affirmed the WCJ s decision. Claimant and Employer filed the cross-petitions for review we now consider. In addition, Claimant requests this Court to remand the matter to the Board to assess attorney s fees and costs pursuant to Pennsylvania Rule of Appellate Procedure 2744, which permits a court to award attorney s fees and costs if it concludes that an appeal is frivolous. 2 2 This Court s review of the Board s order is limited to considering whether necessary factual findings are supported by substantial evidence and whether any errors of law or constitutional violations were committed. 2 Pa. C.S Additionally, in accordance with our Supreme Court s decision in Leon E. Wintermyer, Inc. v. Workers Compensation Appeal Board (Marlowe), 812 A.2d 478 (Pa. 2002), we may also review a WCJ s decision for capricious disregard of material, competent evidence as a component of our appellate review when such a party has properly presented such an issue to the Court. Wintermyer, 812 A.2d at

5 Claimant s Petition for Review Claimant raises the following issues in his petition for review: (1) whether the WCJ failed to issue a reasoned decision with respect to Claimant s alleged lumbar injury; and (2) whether the WCJ s finding that Claimant is capable of performing sedentary work is supported by substantial evidence. Claimant first challenges the WCJ s decision to exclude his claims of lumbar injuries from those added to the NCP. Under Section 413(a) of the Workers Compensation Act (Act), 3 a WCJ may amend an NCP if the WCJ determines that the NCP contains a material mistake or if the disability of a claimant has changed. Jeanes Hosp. v. Workers Comp. Appeal Bd. (Hass), 872 A.2d 159 (Pa. 2005). In Jeanes Hospital, our Supreme Court held that a material mistake exists if the injuries accepted in an NCP do not include all the injuries incurred in the initial work accident. Id. at 167. Additionally, the Supreme Court held that injuries that result from an original injury constitute an increase in disability, such that an original NCP may be materially incorrect. Id. Thus, when a claimant seeks to add injuries to an NCP, the claimant bears the burden to prove that the NCP was materially incorrect at the time it was issued, because it failed to reflect all work-related injuries that occurred at the time, or that the work-related injuries arising from the initial injury have resulted in further loss of earning power i.e., increased disability. Id. 3 Act of June 2, 1915, P.L. 736, as amended, 77 P.S

6 Claimant argues that the WCJ s decision concerning Claimant s alleged lumbar injuries is not reasoned under Section 422(a) of the Act, 4 which provides in pertinent part: All parties... are entitled to a reasoned decision containing findings of fact and conclusions of law based upon the evidence as a whole which clearly and concisely states and explains the rationale for the decisions so that all can determine why and how a particular result was reached. The workers compensation judge shall specify the evidence upon which [she] relies and state the reasons for accepting it in conformity with this section. When faced with conflicting evidence, the workers compensation judge must adequately explain the reasons for rejecting or discrediting competent evidence. Uncontroverted evidence may not be rejected for no reason or for an irrational reason; the workers compensation judge must identify that evidence and explain adequately the reasons for its rejection. The WCJ rendered the following factual finding regarding the deposition testimony of Dr. Sarah Tabby, Claimant s treating physician: a. Dr. Sarah Marks Tabby is board-certified in physical medicine and rehabilitation and first examined Claimant on August 15, During the next three years she evaluated him on a total of 27 occasions. At the time of his initial visit he complained of neck, back, right arm, left arm, right and left leg and left testicle pain. He attributed his symptoms to a slip and fall at work that he described as falling from a ledge ten feet. On her initial examination she made findings of spasm in his neck, low back, and shoulder region along with atrophy of the right upper extremity.... He had limited range of motion in his neck and lumbar spine.... b. Based upon her physical examination she diagnosed right C5 radiculopathy and bilateral L P.S

7 (F.F. no. 27.) radiculopathy.... An MRI of the lumbar spine performed on March 13, 2008 showed mild degenerative changes. c. Following [anterior discectomy surgery at Claimant s C6-C7, performed on November 21, 2008]... Dr. Tabby noted severe spasm in the low back... An EMG performed on October 22, 2009 showed bilateral L5 radiculopathy. As of her most recent examination, Claimant still had pain in the left lower extremity radiating from his back.... She related her findings of... bilateral radiculopathy to his work injury..... d. Dr. Tabby admitted that Claimant had neck and lower back pain pre-dating the work injury pursuant to the medical records of Dr. Levin, who treated him between October 2001 and May Dr. Tabby agreed that the findings on the lumbar MRI studies predated the work injury. The WCJ made the following factual finding regarding the medical records of Claimant s visit to the emergency room following his injury: (F.F. no. 28.) Claimant complained of left-sided neck pain, back, groin and leg pain. He was not in acute distress and was discharged with a diagnosis of chest wall contusion and muscle strain. The WCJ made the following factual finding relating to the testimony of Employer s medical expert, Noubar Didizian, M.D.: c..... A lumbar MRI performed on March 13, 2008 was normal with no significant disc bulging at any levels, and an EMG test performed on October 22, 2009 showed bilateral L5 radiculopathy. d..... Dr. Didizian opined that any back and leg complaints are not related to the work injury because he had no such complaints at the emergency room on 7

8 July 10, Dr. Didizian opined that the allegations of... bilateral L5 radiculopathy, lumbrosacral sprain and strain and lumbar herniated disc are not related to the accepted work injury. e. Dr. Didizian opined that the lumbar radiculopathy does not correlate to the MRI study since there is no disc pathology at the level where you would expect for an L5 radiculopathy. (F.F. no. 17.) The WCJ also rendered the following factual finding relating to Dr. Shawn Bird s deposition testimony, submitted on behalf of Employer: (F.F. no. 21(a).) a. Dr. Bird is a specialist in diseases of injuries to the peripheral nerves and muscles and works in the clinical practice of the University of Pennsylvania. He is board-certified in neurology and clinical neurophysiology and is the director of the EMG lab. He reviewed the October 22, 2009 EMG administered by Dr. Sarah Tabby and disagreed with her interpretation of the results. Dr. Tabby said the test study showed bilateral L5 radiculopathy. Dr. Bird reviewed the raw data and opined that the results were normal and that the slight increase of spontaneous activity shown is an equivocal abnormality that is often detected in normal muscles. He reasoned that even when a significantly abnormal increase of spontaneous activity is detected, it would be related to an acute injury that is less than twelve weeks old, and thus there was no way to relate any of the mild abnormalities detected to an accident that occurred in When evaluating chronic nerve injuries or radiculopathy that last beyond several months, Dr. Bird explained that he would look at the changes in motor unit amplitude which were described as normal on the test study. Dr. Tabby also mistakenly coordinated her findings upon physical examination with the test study, opining that sciatic nerve impingement correlates with the paraspinal muscles in the back, which Dr. Bird stated was incorrect since the sciatic nerve is formed in the pelvis and other than in severe cases of sciatic neurology, the testing of the paraspinal muscles is always normal. 8

9 In resolving the conflict in opinion regarding Claimant s alleged lumbar radiculopathy, the WCJ determined: (F.F. no. 35.) As to the nature of the injuries sustained, this Judge finds as a fact that the October 22, 2009 EMG study addressed by Dr. Bird did not show lumbar radiculopathy. Dr. Bird s credentials are far superior in the interpretation of EMG testing to Dr. Tabby s and Dr. Bird s interpretation is consistent with the normal lumbar MRI study. Dr. Didizian based his opinion that Claimant sustained no injury to his lumbar spine on the emergency room records, but on cross-examination he was forced to admit that Claimant complained of lower back pain on the date of injury. Yet, Claimant was not diagnosed with a back injury at the emergency room and Dr. Tabby limits her diagnosis of the lumbar spine to lumbar radiculopathy, which is rejected as not credible by this Judge. Thus, the WCJ determined that Claimant failed to establish that he suffered a lumbar injury at the time of or as a result of his work-related accident in July In reaching that determination, the WCJ noted that Claimant s expert opined only regarding her belief that Claimant s work-related injuries included L5 radiculopathy and no other lumbar injuries. The WCJ also found that Dr. Tabby s testimony regarding the existence of the condition based upon the EMG tests less credible than Dr. Bird s. Claimant asserts that the WCJ s factual findings are inconsistent, fail to resolve all necessary issues, and are inadequate to enable meaningful appellate review, because, he claims, the Court must necessarily hypothesize reasons why the WCJ reached certain factual determinations. Claimant first suggests that the WCJ failed to identify an acceptable basis for her credibility determinations as between medical experts who testified through depositions rather than live. Claimant is correct in asserting that when a witness or witnesses testify by deposition, a WCJ must articulate a reason why she 9

10 accepts one expert s opinion over another. Amandeo v. Workers Comp. Appeal Bd. (Conagra Foods), 37 A.3d 72, 76 (Pa. Cmwlth. 2012). A WCJ can satisfy this requirement, however, by objectively explaining her credibility determinations. Id. The WCJ here did just that. With regard to the allegation of radiculopathy at L5, the WCJ noted that the testimony of Claimant s medical expert, Dr. Tabby, was less credible than the testimony of Dr. Bird. Claimant argues that Dr. Bird s testimony was insufficient to respond to Dr. Tabby s opinion regarding the existence of radiculopathy at L5, because Dr. Bird s testimony related solely to the EMG. Regardless of whether the testimony related solely to the EMG, Dr. Bird s testimony was unequivocal on the issue of whether Claimant suffers from radiculopathy at L5. The WCJ deemed Dr. Bird s testimony credible based upon the finding that Dr. Bird s expertise in the field of EMG analysis was superior to Dr. Tabby s. Thus, the WCJ provided an objective and acceptable reason why she found Dr. Tabby s testimony less credible than Dr. Bird s. Claimant also argues that, based upon the fact that Dr. Tabby conducted her clinical evaluation of Claimant before Dr. Bird s review of the EMG, the WCJ s decision was not reasoned. Claimant contends that the WCJ should have afforded greater weight to Dr. Tabby s testimony because she based her opinion on her clinical (and, therefore, personal examination of Claimant) and Dr. Bird based his opinion solely on his review of Claimant s records and EMG test results. We disagree, as Claimant is essentially asking the Court to reweigh the evidence and the WCJ s credibility determinations, which we are not permitted to do. Sell v. Workers Comp. Appeal Bd. (LNP Eng g), 771 A.2d 1246, 1251 (Pa. 2001). Claimant also contends that the WCJ s factual findings are inconsistent. 10

11 Claimant contends that the WCJ erred in her findings regarding Claimant s request to add lumbar injuries to the NCP, based upon the fact that, as recognized by the WCJ, Dr. Didizian had the erroneous belief that Claimant did not report complaints of lumbar pain to the emergency room staff. We find this objection meritless. As the WCJ stated, Claimant offered evidence from the emergency room, indicating that Claimant reported pain in his lower back to the staff. The WCJ, however, was not persuaded by the emergency room records, because the diagnosis made upon examination in the emergency room did not include any reference to a back-related injury. That fact, rather than an error on the part of Dr. Didizian s understanding of Claimant s complaints in the emergency room, was the primary factor in the WCJ s reasoning. Despite this, Claimant argues that evidence in the record indicates that one of the attending physicians in the emergency room made a note that Claimant complained of back pain as follows: moderate tenderness left paraspinious muscles thoracic and lumbar reproduces pain. (June 22, 2010 hearing, Claimant s Exhibit 5 p.5.) Such a comment is not the equivalent of unequivocal medical testimony confirming the suggested diagnosis. Dr. Tabby did not opine regarding whether Claimant sustained a lumbar sprain or strain. Thus, the notes of the emergency room physician are not helpful to Claimant s argument. We must reiterate that a claimant seeking to add an injury to an NCP bears the burden of proof. In this case, Claimant simply failed to meet his burden with regard to his claim of radiculopathy at L5 and lumbar sprain or strain. Thus, we conclude that the WCJ s necessary factual findings are supported by substantial evidence and that the WCJ s decision is a reasoned one. 11

12 Claimant next argues that the WCJ erred in finding that Claimant is capable of sedentary work, asserting that there is not substantial evidence to support Finding of Fact no. 38, which provides: Claimant was capable of sedentary work as of April 2, He may have restrictions on his ability to bend, reach, lift and squat but as long as a sedentary position was provided with the ability to change position as needed, then Claimant was and is capable of performing job duties. Dr. Tabby s outright rejection of suitable sedentary job positions on the basis that Claimant is not capable of sitting more than thirty minutes is rejected as not credible. Dr. Tabby s restrictions of Claimant are rejected as not credible. Claimant sat comfortably before this Judge for a period longer than that and his work-related medical conditions do not prohibit him from all gainful employment and certainly do not prohibit him in moving about town, shopping, socializing, functioning in his personal life, as evidenced by his very busy Facebook page. Claimant argues that Dr. Tabby s release of Claimant to work was never a release to the full range of sedentary employment as evidenced by her physical capabilities checklist. (Claimant s Brief at 61.) The WCJ accepted Dr. Tabby s testimony in part. The WCJ did not accept as credible Dr. Tabby s testimony regarding the thirty-minute sitting limitation. The WCJ did, however, accept the other limitations, including bending, reaching, lifting, and squatting. The WCJ, after observing Claimant s own demeanor while testifying, did not perceive any difficulties, and thus, concluded that, as long as Claimant has the ability when performing a sedentary job to change positions when needed, he would be capable of performing such sedentary work. The WCJ simply did not find Dr. Tabby s testimony credible in this regard, and Claimant s challenge is akin to a challenge to the weight and sufficiency of the evidence which is purely within the province of 12

13 the WCJ. Sell. Thus, we conclude that the WCJ s finding regarding the extent of Claimant s physical ability to include a job sitting where he may change his position as needed is supported by substantial evidence. Employer s Modification/Suspension/Termination Petitions This Court has summarized the law regarding an employer s burden when seeking a suspension or modification of workers compensation benefits: The well-established general rule imposes upon an employer seeking modification or suspension of benefits the burden to prove the existence of an available job or, where applicable under Act 57, proof of earning capacity. This requirement is the logical result of the equally well-established doctrine that disability under workers compensation law is the loss of earning power attributable to the work-related injury and not the physical impairment arising therefrom. As our Supreme court stated, in Landmark Constructors, Inc. v. Workers Compensation Appeal Board (Costello), 560 Pa. 618, 747 A.2d 850 (2000), by requiring an employer to demonstrate that a job has been made available to the employee, this court has fashioned a workable procedure by which employers can show that the disability of an injured employee has... decreased. 77 P.S Id. at 625, 747 A.2d at 854. Hence, the suspension of benefits is justified only where claimant has returned to work earning his pre-injury wages, or employer has submitted proof in the form of an actual job offer, evidence of suitable available jobs or expert testimony as to earning capacity, establishing that the work injury no longer effects claimant s earning power. Martin v. Workers Comp. Appeal Bd. (Red Rose Transit Auth.), 783 A.2d 384, 391 (Pa. Cmwlth. 2001). Brandywine Mazda Suzuki v. Workers Comp. Appeal Bd. (Asman), 872 A.2d 253, 256 (Pa. Cmwlth. 2005) (footnotes omitted). If an employer demonstrates that it has offered a suitable job to a claimant and the claimant refuses the offer, then the 13

14 employer is entitled to a suspension or modification of workers compensation benefits, unless a claimant can demonstrate that he acted in good faith in response to the job offer. Thomas v. Workers Comp. Appeal Bd. (Health Care Bus. Res.), 809 A.2d 1068, 1071 (Pa. Cmwlth. 2002). Employer first contends that the WCJ capriciously disregarded evidence or issued factual findings unsupported by substantial evidence with regard to her determination that Employer failed to prove that it offered Claimant a job or jobs within his physical restrictions. Employer offered the live testimony of Ms. Temple. Ms. Temple testified at two separate hearings the WCJ held on February 16, 2010 and June 22, During the first of those two hearings, Ms. Temple testified in reference to Employer s LMS petition. Ms. Temple testified that, at the request of Employer s counsel, she pulled descriptions of all jobs that Employer posted between April 16, 2009 and July 15, (Notes of Testimony (N.T.), February 16, 2010 hearing, at 7, 12.) She identified those jobs and testified that the jobs had been open. (Id. at ) Her testimony, however, suggested that the jobs were not available to Claimant because he lacked educational qualifications. (Id.) Thus, as Employer s counsel noted, this evidence was provided to demonstrate that, during that period, Employer did not have a suitable job available for Claimant. 5 In such circumstances, as noted in the quoted 5 Ms. Temple also testified that on November 6, 2009, she sent a return to work notice/letter to Claimant, offering him the position of warehouse assistant at the same rate of pay he received before his injury. (Id. at 15.) During her testimony, Ms. Temple discussed the notice, which referred to the release-to-work directed by Employer s medical expert and examining physician, Dr. Didizian. (Employer s Exhibit no. 5.) Ms. Temple attached to the letter Employer s Notice of Ability to Return to Work, which Employer issued based upon Dr. Didizian s report generated following his independent medical examination of Claimant and Dr. Didizian s completion of a physical capabilities form. In the physical capabilities form, (Footnote continued on next page ) 14

15 passage above, an Employer may obtain a suspension or modification of benefits based on labor market survey evidence that demonstrates the earning capacity of a claimant. We discuss this more fully below in our consideration of Employer s second issue on appeal. On June 22, 2010, Ms. Temple testified regarding a May 6, 2010 notice of ability to return to work. The notice includes a Job Analysis for each of the two warehouse assistant positions that Employer intended to cobble together in an attempt to create a single position within Claimant s capabilities. Ms. Temple testified that the second notice of ability to return to work reflected restrictions identified by Claimant s treating physician, Dr. Tabby. With regard to Employer s attempt to develop a job for Claimant within his restrictions, Ms. Temple testified: Q. What, if anything, were you and your company able to do regarding those restrictions; tell us, please? A. We were able to accommodate the restrictions by taking a piece of a Warehouse Assistant position and taking bits and pieces of the overall tasks to have a job for Mr. DeBruno to come back to work which accompanied his restrictions. (N.T., June 22, 2010 hearing, at 11.) On cross-examination, Ms. Temple testified regarding the nature of the job Employer offered Claimant in May 2010: (continued ) Dr. Didizian indicated that Claimant was capable of performing light work, which encompasses lifting up to twenty pounds with frequent lifting and/or carrying of objects weighing up to ten pounds. (N.T. February 16, 2010 hearing at 15.) Ms. Temple testified that Claimant did not respond to the job offer, but that Claimant s counsel responded by letter, indicating that Claimant could not work the warehouse assistant position. (Id. at 16.) Employer s modification/suspension petition is not based upon this offer of employment. 15

16 The one in the May 6 th [notice of ability to return to work], this is still Warehouse Assistant, but it was actually doing work on the Floor. So, they were similar, but there were some differences, but it s still part of the job description of a Warehouse Assistant. (Id. at 17.) Ms. Temple testified that she sent the job offer to Claimant at the direction of Employer s counsel. (Id. at 19.) When questioned by Claimant s counsel regarding the distinction between the job of Warehouse Assistant Employer offered to Claimant in 2009 and the job of Warehouse Assistant offered in 2010, Ms. Temple responded: If they re part of the Warehouse Assistant we just would say if you couldn t reach, if that was one of the restrictions we would have another employee reach for him. If he couldn t bend to get a pillow on the lower level we would have another employee help him. And again if it s part of the Warehouse Assistant he s doing similar things beside the full physical duties of this job, reaching, bending, twisting, lifting. (Id.) In response to questions Claimant s counsel posed regarding whether the job analysis reflected the accommodations Claimant would need to perform the Warehouse Assistant job, Ms. Temple responded that the Job Analyses indicated that [a]ssistance is provided as needed. (Id.) Ms. Temple testified that in her letter informing Mr. DeBruno of his ability to return to work and the job that Employer had prepared, she wrote that the physical duties entailed by the job are consistent with the release of Dr. Tabby, Claimant s treating physician. (Id. at 21.) Ms. Temple also provided the following testimony concerning the restrictions and the Job Analyses of the two positions used to create the position Employer offered to Claimant: 16

17 Q. Let s go to the second one, which was the Warehouse Assistant Returns position, and I m on page 2 now. That did require frequent reaching; is that correct? A. That s what it states, yes. Q. And on the Notice of Ability to Return to Work From it indicates that according to the restrictions there was to be no reaching; is that correct? A. That s what it says, yes. Q. And on bending, it indicates that this job required occasional bending; is that correct? A. Correct. Q. And on the restrictions that you relied upon it indicates that Mr. DeBruno was precluded from bending; is that correct? A. Correct..... Q. And again it indicates on this Notice... that [Claimant] was to be precluded from reaching; is that correct? A. Correct. Q. And it also indicates that this job was a sitting position requiring continuous or five to eight hours of sitting; is that correct?.... A. Sit it says, Continually. Q. Do you know how many hours Dr. Tabby released [Claimant] to sit during the course of an eight-hour day? A. On the Notice... it says, sitting 30 to 60 minutes, standing 20 minutes, walking 5 to 10 minutes..... Q. I m looking at a Job Analysis that you indicated someone else could reach for him, someone else could bend for him; someone else could sit for him. In other words, is he able to do this job at all based on this description?

18 A. According to his restrictions and how we can accommodate with the assistance needed, he could do this position. We went over the restrictions with the Inventory Manager, and we told him that he could only sit for 30 to 60 minutes. He said, That s fine. You can sit doing this job. You can stand doing this job. Whatever the restrictions are we were able to accommodate his restrictions. The only thing that he couldn t do according to his restrictions is, we were going to have another co-worker reach for him if he had to reach for a product. If he couldn t squat down to get a product on the bottom, we were going to have a co-worker assist him in getting product. That is how we were going to have him work this position. Q. Well, ma am, according to this he would have to be reaching for more than half the day. Is somebody else going to be doing all of this reaching? A. Yes. Q. And where is that indicated in the letter? A. In the letter it says, Assistant is provided as needed. Q. Well, ma am, why wasn t the job description indicating that he wouldn t have to reach at all, indicating that someone else would do the reaching for him on this letter? Ms. Temple also testified that she was aware that Dr. Tabby did not approve the offered positions. (Id. at ) The letter Ms. Temple sent to Claimant advising him of the job offer provides as follows regarding the duties of the job: The general physical duties involved in this position are as follows: Employee is responsible for processing returned prescriptions. This involves taking a product from a wheeled bin, scanning the product with a PDA, using a heat gun to remove label from product and tossing product into the appropriate bin that coincides with zone code. The return bins are stacked floor to above shoulder level. A chair is available and this portion of the job can be performed seated or standing. 18

19 The wheeled bin of returns is brought to the employee by a co-worker. Once the product is processed, the employee is then responsible for replacing product on shelves in the appropriate zone. Shelves are stacked floor to above shoulder level. Assistance is provided as needed. Employee is responsible for maintaining accurate counts on the PDA and shelves. Duties include scanning code on product on the shelf, reading count on the PDA and correlating with actual product. An unopened bottle will have the count on the label. A bottle that has been opened will have to be emptied into a pill counter and once counted; the pills are put back into the bottle and placed back on the shelf. If physical count differs from count when scanned, employee will have to adjust accordingly in the PDA. There are about 15 rows of shelves that cover an area about the size of half a football field. Product is located on shelves from floor to above shoulder level. Assistance is provided as needed. These physical duties are consistent with the release of Dr. Tabby. (June 22, 2010 hearing, Employer s exhibit marked as D-8.) The notice of ability to return to work reflected the limitations, and it also specifically indicated that with regard to the sitting, standing, and walking limitations, Claimant would be able to change his position among those three positions as needed. (Id. at p. 5 of Exhibit D-8.) Exhibit D-8 also includes the two Job Analyses. One pertains to the Warehouse Assistant Cycle Counts position, and the other is Warehouse Assistant Returns. As suggested by Ms. Temple s testimony, the ultimate job to which her letter referred appears to combine duties of both positions. The Cycle Counter position indicates that bending, stooping, sitting, climbing and overhead reaching may be required occasionally (zero-to-three hours per day), and that walking, standing, and reaching is required frequently (three-to-five hours per day). According to the analysis for the Returns job, walking, bending, stooping, standing, climbing, and overhead reaching are required occasionally (zero-to-three 19

20 hours per day), reaching is required frequently (three-to-five hours per day), and sitting is required continually (five-to-eight hours per day). (Exhibit D-8.) The WCJ rendered factual findings reflecting the fact that the notice of ability to return to work did not include any medical evidence and that the job descriptions facially appeared to propose work requirements exceeding Claimant s restrictions by requiring frequent reaching, bending, and continuous sitting. The WCJ also noted that, when asked about this discrepancy between requirements and abilities, Ms. Temple referred to the sentence in her letter and her assertion that Employer would accommodate any of Claimant s restrictions while at work, even if it meant someone else doing the main functions of the job such as reaching and gathering the product. (F.F. no. 32(c).) The WCJ made the following key factual findings relative to Employer s claim that it offered Claimant suitable employment. 20 In the first, Finding of Fact no. 38, which we quoted above, the WCJ rejected Dr. Tabby s opinion in part, determining that Claimant was capable of sedentary work, as long as he could change positions as needed and did not have to bend, lift, reach, or squat. The WCJ also determined in Finding of Fact no. 39: This Judge finds that Claimant is temporarily totally disabled from performing his pre-injury job as a warehouse assistant. This Judge further rejects the job offers by Employer as substantiated through the testimony of Ms. Temple as not suitable for Claimant and not within his physical restrictions. It is not believable that someone other than Claimant will perform the main function of the warehouse assistant job, which is reaching for product and the two positions offered by letter were essentially Claimant s pre-injury job. Ms. Temple had limited understanding of Claimant s educational background, his qualifications for the jobs available at Employer and his ongoing work-restrictions. Ms. Temple s testimony is found credible by this Judge

21 (F.F. nos. 39.) for the proposition that Employer has no jobs at its place of employment for which Claimant is qualified and which are within Claimant s physical restrictions. In summary, Ms. Temple testified that she was aware of some of Claimant s restrictions and that the proposed job was identical to his pre-injury job, and required frequent reaching, bending, and continual sitting for five-to-eight hours. As indicated by the record and found by the WCJ, however, Claimant s restrictions precluded him from any bending and reaching and indicated that he must shift his positions occasionally. Ms. Temple s letter indicated that Employer would provide assistance to Claimant so that he would not have to perform the restricted tasks, but the job descriptions themselves, inconsistent with Ms. Temple s testimony, indicate that the job would require Claimant to perform all of the activities Dr. Tabby testified that Claimant should not perform. The WCJ essentially rejected Ms. Temple s testimony that Employer would provide necessary accommodation, apparently because, given the job descriptions that appear to require the performance of a substantial amount of restricted activities, another employer would have to perform much of Claimant s job. The WCJ, thus, viewed as not credible Ms. Temple s testimony that someone other than Claimant would perform the restricted activities that comprise a substantial portion of the job duties for the position Employer offered to Claimant. Employer also challenges the WCJ s findings based in part on her references to vocational requirements, i.e., high school diploma or GED requirements for employment. While we agree with Employer that those factual issues are not relevant here, the WCJ clearly based her decision primarily upon the fact that the job descriptions in the Job Analyses included in Exhibit D-8 described 21

22 the offered position as essentially identical to Claimant s pre-injury position. Although Employer s letter indicated that assistance would be provided to accommodate the restrictions Dr. Tabby imposed on Claimant s work, the WCJ viewed the job as being essentially the same as his pre-injury job, because the actual job description required Claimant to perform duties beyond his restrictions and the WCJ did not believe Ms. Temple s statement that another employee would be able to do the restricted activities. It seems apparent that the WCJ viewed Ms. Temple s testimony regarding the availability of assistance as improbable or incredible in light of the overarching level of restricted activities associated with the offered position. Thus, contrary to Employer s argument, we agree with the Board that substantial evidence supports the WCJ s pertinent factual findings because she simply found Ms. Temple s testimony on the issue of accommodation to be not credible. As we noted above, under Section 306(b)(2) of the Act, an employer may obtain a suspension or modification of benefits if, in the absence of open and available suitable employment with the employer, the employer can demonstrate through expert opinion evidence that a claimant s earning power has increased. The expert s testimony may establish a change in earning power through evidence including job listings, employment agencies, agencies of the Department of Labor and Industry, and advertisements in a claimant s usual area of employment. South Hills Health Sys. v. Workers Comp. Appeal Bd. (Kiefer), 806 A.2d 962, 966 (Pa. Cmwlth. 2002). 22

23 In this case, Employer offered the testimony of its vocational expert, Mr. Nocera, who conducted what is commonly referred to as a labor market survey. 6 The WCJ rendered the following pertinent factual findings: 41. While Claimant did not choose to present a vocational expert... Claimant has challenged the validity of Mr. Nocera s testimony based upon his failure to provide a written disclosure advising Claimant as to his role as a defense vocational witness pursuant to [34 Pa. Code ] Said disclosure was made after meeting with Claimant, when pursuant to the Act the disclosure must be made prior to the interview for the earning power assessment to be considered by this Judge. Mr. Nocera admitted that he failed to provide Claimant with a written disclosure advising him as to his role as a vocational expert in limited relationship prior to the vocational interview (Nocera, p. 81) and as such, pursuant to [34 Pa. Code ], this Judge is bound not to consider the labor market survey prepared by Mr. Nocera. 42. Claimant also argues that Mr. Nocera failed to make a financial disclosure to Claimant and further failed to send the vocational assessment directly to Claimant. This Judge is not persuaded by these arguments since notice to counsel is notice to Claimant. Kachinski v. WCAB (Vepco Constr. Co.), 532 A.2d 374 (Pa. 1987). Claimant s counsel was in receipt of all documentation, by his own admissions made during the time of Mr. Nocera s testimony. Furthermore, pursuant to Section (b) of the [regulations, 34 Pa. Code (b)], the financial disclosure is only required if such an interest exists, and there is no evidence of record to suggest that it does in this case at bar. This Judge 6 Neither the Act nor relevant regulations define the term labor market survey, but in the context of workers compensation modification petitions, the term refers to surveys conducted by vocational experts who evaluate a claimant s vocational and physical qualifications and locate available jobs in a geographically proximate area to a claimant s residence that fit within a claimant s vocational and physical abilities. 23

24 finds that Mr. Nocera s qualifications meet the minimum qualifications established by the Department through regulations.... (F.F. nos ) The WCJ concluded that Employer failed to meet its burden of proof pursuant to Section of the Regulations and as such, this Judge may not consider the labor market survey performed by Employer s vocational expert. Employer s Modification Petition based upon labor market survey is hence denied and dismissed. (Conclusion of Law no. 3.) The Board affirmed the WCJ s decision regarding Employer s LMS petition, relying upon 34 Pa. Code (c), which provides that [a] WCJ may not consider the merits of an earning power assessment interview if the [WCJ] finds that the vocational expert has not complied with or that the insurer has not complied with The Board referenced a different subsection of 34 Pa. Code , subsection (b), which, unlike the provision cited by the WCJ, requires vocational experts conducting an earning power assessment interview to generate an initial report detailing the expert s involvement in the litigation and conclusions from the interview. 34 Pa. Code (b). That provision also requires a vocational expert to serve a copy of the initial report on the employee and counsel, if known, within 30 days of the date of the interview. Id. The Board cited Mr. Nocera s testimony and concluded that Mr. Nocera never sent a copy of his initial vocational assessment, his labor market survey, or any other reports to Claimant in violation of Section (b). Thus, the Board concluded that the WCJ correctly disregarded the labor market survey 24

25 under 34 Pa. Code (c). The Board, thereby, concluded that the WCJ did not err in dismissing Employer s LMS petition. 7 On appeal, Employer argues that the Board misunderstood the WCJ s meaning as expressed in Finding of Fact no. 41. Employer points out that the focus of the WCJ s finding related to the requirement for initial pre-interview disclosure, rather than sending the post-interview vocational report, labor market survey, or other post-interview reports. With regard to the pre-interview disclosure cited by the WCJ under 34 Pa. Code (a), Employer contends that the alleged conduct of Claimant s counsel obviated Mr. Nocera s duty under that provision to advise Claimant before he conducted his interview of his relationship to Employer. Employer refers to Mr. Nocera s testimony in which he stated that Claimant s counsel advised Mr. Nocera before Mr. Nocera conducted his interview of Claimant that Mr. Nocera should not have any contact with Claimant. (Nocera, Exhibit 2, December 24, 2008 letter from Claimant s Counsel to Mr. Nocera.) In 7 The Board indicated that it agreed with the WCJ s reasoning, but it appears that the rationale employed by the WCJ and the Board differs. As indicated above, the WCJ found fault with Mr. Nocera s failure to advise Claimant before his interview with Claimant regarding Mr. Nocera s status as a vocational expert working for Employer as required by 34 Pa. Code (a). The Board did not address this provision. Rather, the Board, unlike the WCJ, determined that Mr. Nocera failed to comply with a regulation requiring vocational experts to send initial reports to both a claimant and claimant s counsel. In fact, the WCJ appears to have rejected this position proffered by Claimant, because, as indicated above, the WCJ opined that notice of the assessment (as well as a financial disclosure) sent to Claimant s counsel was sufficient under Kachinski v. Workmen s Compensation Appeal Board (Vepco Constr. Co.), 532 A.2d 374 (Pa. 1987). While we do not view the dicta in Kachinski which indicates that, with regard to a claimant s counsel s failure to apprise a claimant of job offers, notice to counsel is imputed to a claimant as clearly applicable to the notice requirements contained in the regulations relating to labor market survey evidence, we agree with the WCJ s resolution regarding the LMS petition. 25

26 that letter, Claimant s counsel requests information from Mr. Nocera concerning a return-to-work physical capabilities form issued by Claimant s treating physician. Claimant s counsel advised Mr. Nocera that he would review, upon receipt, Mr. Nocera s curriculum vitae and the capabilities form, and then advise Mr. Nocera if he would permit Mr. Nocera to meet with Claimant. The last paragraph of the letter refers to revocations of unnamed authorizations, presumably previously provided by Claimant, and reminds Mr. Nocera regarding HIPPA privacy rules precluding you from contacting Claimant s treating physicians without Claimant s written consent. (Id.) We do not view this letter as relieving Mr. Nocera of his duties under 34 Pa. Code (a). Rather, although the letter advises Mr. Nocera not to contact Claimant at that time, it is clear that at some point, Claimant s counsel and Mr. Nocera agreed to an interview by Mr. Nocera of Claimant. Under the regulation, then, once that agreement occurred, Mr. Nocera had a duty to provide the notice to Claimant before actually conducting the interview. Employer, in apparent response to the Board s rationale in affirming the WCJ under 34 Pa. Code (b), contends that the testimony upon which the Board relied actually relates to the issue of whether Mr. Nocera provided a required financial disclosure. Thus, Employer contends that there is insufficient evidence to support the WCJ s factual finding. Although we agree with Employer that the Board appears to have misconstrued the testimony, as the testimony does appear to refer to financial disclosures rather than the service of vocational reports, we conclude that the WCJ s pertinent factual findings are supported by substantial evidence. 26

27 Employer asserts that the WCJ s reading of [Mr. Nocera s] testimony on page 81 [of the Notes of Testimony]... is not supported by substantial, competent evidence. Mr. Nocera was asked about the financial disclosure and not the initial vocational disclosure. (Employer s Brief at 47.) We disagree. On page 80 of Mr. Nocera s testimony, Claimant s counsel specifically referred to 34 Pa. Code and then asked Mr. Nocera if he had supplied Claimant with written disclosure regarding his role as a vocational expert in the matter. Thus, contrary to Employer s argument that Claimant presented no evidence, Mr. Nocera s testimony indicates that he did not comply with 34 Pa. Code (a). Employer also argues that even if Mr. Nocera had a duty under 34 Pa. Code (a) to advise Claimant regarding his relationship with Employer, the communications between Mr. Nocera and Claimant s counsel were sufficient to provide Claimant with actual notice of the proposed interview and Mr. Nocera s role as Employer s expert, such that actual written notice to Claimant himself was not necessary. We disagree. The regulation clearly requires that vocational experts disclose to the employee, in writing, the role and limits of the vocational expert s relationship with the employee. That language is clear and unambiguous. As the WCJ s finding indicated, Mr. Nocera admitted that he did not send a written disclosure to Claimant. Under 34 Pa. Code (c), a WCJ may not consider the merits of an earning power assessment interview if the WCJ finds that the vocational expert has not complied with 34 Pa. Code Accordingly, we 8 We reject Employer s argument also on the basis of waiver. Employer asserts, without legal argument or citation, that the alleged actual notice it claims Claimant must have received through his counsel, satisfied the disclosure requirement. Under Pa. R.A.P. 2116, when a party (Footnote continued on next page ) 27

28 conclude that regardless of whether Claimant s counsel provided claimant with actual notice of Mr. Nocera s status, Employer has not established that Mr. Nocera complied with the requirement. Employer apparently argues that, notwithstanding Mr. Nocera s failure to comply, Mr. Nocera s testimony regarding the jobs he described in his labor market survey is sufficient to support a finding that jobs were available that fell within Claimant s vocational and physical abilities. The key question in this case, however, is whether the WCJ was precluded from considering Mr. Nocera s labor market survey, as that was the basis of Employer s LMS petition. As indicated above, we agree with the WCJ s determinations and conclusions, and we reject Employer s apparent argument that the testimony of Mr. Nocera is sufficient. Finally, Claimant requests in his Amended Brief, which appears more aptly characterized as a response brief to Employer s cross-petition for review, that the Court award attorney s fees and costs. Claimant asserts that Employer s appeal of the Board s decision was frivolous under Pa. R.A.P. 2744, which provides: Rule Further Costs. Counsel Fees. Damages for Delay. In addition to other costs allowable by general rule or Act of Assembly, an appellate court may award as further costs damages as may be just, including (1) a reasonable counsel fee (continued ) fails to develop an issue in the argument section of its brief, the Court may consider the issue to have been waived. In re: Condemnation by the Commonwealth of Pennsylvania, Dep t of Transp., of Right-of-Way for State Route 0079, 76 A.3d 101, 106 (Pa. Cmwlth. 2013). 28