Loading...
HomeMy WebLinkAbout99-02280 \ ) '. \>:"c.-., L'.:" .:',~;, '. :'-?;'::- , Yi.:;, ~ ~~:{/: ~. .(l.. ;, ..~,~ A96-2978 Page 3 The We} found Ihal C1:1il11:11l1 proved Ih:ll the re:lson ",r the suspension, liglll dUly work, no longer exisled. lie :llso Il)und Ih:ll Del'cnd:lnl failed 10 show eilher Ihat Claim:lm's work injury no longer exisled or Ihal Ihere W:lS work within Claim.lDl's eap:lhililies :lv:lilahle 10 her. lie Iherefore gramed Claimant's Reinslatemem Pelition. In :lddilion, the WC} :llso llluno thaI Ocl'cndam had eng:lged in :In unre:lsonahle COllies!. The WCJ awarded Claimanl allorney's fees 10 be p:lid hy Derendam, This Appeal follows, The Board's scope or review is limited 10 determining whether errors or law have been commilled and whether findings of fact are supported hy suhstantial evidence. Universal Cvclnns Steel Comoration v, W.C.A.B, and Krawczvnski. 305 A.2d 757 (I'a, Cmwlth. 1973). Substantial evidence has been defined as relevanl evidence in lhe record that a reasonahle person would accept as supponing the ultimale conclusion. lIelm v, W.C.A.B. (U.S. Gvnsum Co.), 591 1\.2d 8 (I'a, Cmwlth. 1991). Def'cndam appeals arguing that the WC} incorrectly applied the law to the inslam Silu:llion. To prevail on a reinslalemem petition after a suspension or benefits, the claimam musl show firsl, thaI through no rault of his or her own, the c1aimam's earning power is once :lg:lin :ltTecled hy Ihe disahilily: and second, thai the disahility which gave rise 10 lhe original claim, in rac!. cominues. Lalla v. W.C.A.B. <l..lIrobe Die Castine Co.>. 642 A.2d 1083 (I'a, 1994). Where a cl:limam relurns III work under a suspension, wilh A9(,,29711 I'a!!c 4 rcslrictions, thaI is, tlocs not rclurn 10 hcr timc or injury joh, hul ralhcr 10 a nllltlifictl position. and is suhscqucnlly laid olT and petitions for rcinslalcmcrll of hencfils, thc c1ainmnl is clllillctl 10 Ihc prcsumption th;1I his or hcr tlisahililY, i.coo loss of carning powcr, is causally rclalcd 10 Ihc wnlinuing work injury. McKav v. W,C'.A.II, (Osmolinskil. 6811 A.2d 259 (I';t. Cmwlth, 1997). Morcovcr, if a c1aimalll cSlahlishcs lhal hcr work rclalcd injury has prcvcntcd hcr from rcturning to hcr prc-injury posilion wilhout impairmcnt, Ihc cmploycr Ihen has Ihc hurtlcn 10 cstahlish Ihal Ihc disahility is not rclatctl 10 the work injury or thaI a joh wilhin thc claimalll's rcstriclions is availahle. Trumhull v. W.C.A,B. (Helcn Mining C'!J, 683 A.2d 342 (I'a. Cmwlth. 1996). Defendant, relying on MOlllcson v. W.C.A.B. (Trinitv Induslrics), 682 A,2d 776 (POI, 1996). argues that Claimalll failed 10 show that hcr loss or earning power is due to no fault of hcr own becausc hcr loss in carning powcr was causcd hy hcr failurc 10 look for work, I1owcvcr, Dcfcndalll's rcliance on MOlllcson is misplaccd, for in MOlllcson, lhc c1aimalll had becn releascd to rClUrn to his prc-injury joh and lurncd down an offcr hy his cmploycr to rclurn 10 his prc-injury joh in favor of laking a posilion as a uscd car salcsman, which hc laic I' los!. hL al 776-777, Morcovcr, in Montcson, thc claimant admittcd Ihat thc tcrminalion from his suhscqucnl cmploymclll was not causcd hy his work injury and Ihal his work injury did lllll prcvcnl him from performing his suhse4uclll joh. hL al 778. A 96-29711 Pal!~ 5 lI~rc, Claimam was n~vcr rclc.ls~d 10 r~1U1'I1 hI h~r pre-injury joh amt D~fclUJanl cOIU:~des Ihm Claimam's work injury conlinues. Since C1ailllaJ1l is emilled 10 Ih~ prcsumption thai her disahility is causally related 10 her wllrk injury, McKav, .ml"a.. cl~arly holds that Ih~ hurden thcn shifled lolhc ~mploycr to provc Ihal work wilhin h~r reslriclions was availahle. Th~ WCJ found Ih;n Dcfcndam failcd in Ihis rCl!ard. (Conclusion of Law 3,) lI~rc, Dcfcndant argu~s that it provided Claimam wilh joh leads hy posling posilions, som~ of which shc was qualifi~d for, on hullclin hoards and hy offcring hcr lhc assistanc~ of joh placcm~m scrviccs, all of which shc failcd 10 pursue, Defcndant did not specifically offcr a position to Claimanl. Thc WCJ found Ihat consistcnl wilh Kachinski v. W.C.A.B. (VCllCO Construction Co.), 532 A.2d 374 (Pa, 1987), mcrely providing gcncral information to all cmployccs ahoul johs that may he open dlll:s not constitute a rcferralto a current open joh wilhin Claimanl's rcstrictions. (Conclusion of Law 4,) Wc agrce. Kachinski requircs that thc rcferrals made hy thc employcr he lailorcd to the c1aimani's ahilities ,lOd he mad~ in a good faith allempl 10 relurn Ih~ c1aimanl to pnxluclive cmployment. !J!. al 380. Staled Ihc Court, -On~ injured at work. stranded inlo panial disahililY, deserves morc than a gcneric list dcscrihing wh~re he mighl find somc suitahh: work, - !J!. Lik~wisc. wc agr~e with the WCJ Ihm hy mercly posling johs availahlc to all cmployccs docs nOI eXlinguish Defcndant's ohligalion to find Claimant suilahlc employmcnl. Morcov~r. none of Ih~ johs post~d hy Dcfendant werc o ..... ::: I' ~ "'" 0;-.. ~ j s ~ .. '>- - (': .~ c-; .,. <, ~ J >.. i , n LU -. ... ("1-:'. -'. ~ r'~ I . (."4 ":.J ,. ' '.!.,.-.' :"\ (l,. \n ! .1' .i' t:;, c. '~ 'J , Ci~ ,'. I .. _.J '. c1. C"\ .-' I., U U m I' :~'\ 5 , ~ 1\ " Elise Shockey 5.5. '187-48-3490 Reinstatement Page 3 FINDINGS OF FACT: 1. The claimant suffered a work-related back injury on June 11, 1990 while employed as a warehouse laborer. Elise Shockey, hereinafter called the claimant, received compen- sation at the rate of $209.50 based upon an average weekly wage of $308.40. 2. On December 12, 1990, the claimant returned to work on light duty in a clerical position, at wages equal to or greater than her pre-injury wage. As a result, compen- sation was suspended by supplemental agreement dated July 11, 1991. 3. The claimant never received a medical release from light duty. She continued to work in the light duty clerical position until May 20, 1995 when her job was eliminated in a restructuring move preliminary to a shutdown of the employer'S Blue Ridge Summit, pennsylvania, facility. The employer is in the process of transferring all of its operations previously performed at Blue Ridge Summit to other facilities in Ohio, New Jersey, and New York. 4. On or about July 22, 1995, the claimant petitioned for reinstatement of compensation, contending that she remained unable to perform her pre-injury work due to her work- related injury, and that total disability reoccurred when her light duty job was eliminated. 5. Claimant's medical restrictions due to her work-related injury prevented her from lifting more than ten pounds, and she was to avoid prolonged sitting or standing. The light duty job provided by Tab Books featured the fact that the claimant was allowed to stand and sit freely and could move about at will. 6. The claimant admitted that in November of 1994, she was advised that her job was going to be eliminated. 7. The claimant admitted that she received information about other job opportunities, both with the company and outside the company. The defendant posted possible openings with other employers, posted copies of want ads from local newspapers, and posted listings from the local office of '. Elise Shockey 5.5. '187-48-3490 Reinstatement Page 4 FINDINGS OF FACT (Continued): the Job Service. The claimant was specifically aware of the posted positions within the plant. 8. The claimant admitted that she did not take advantage of the employer's tuition reimbursement plan. 9. The claimant admitted that she did not avail herself of the services of the Franklin County Job Placement Office. 10. The claimant admitted to receiving the employer's' periodic newsletter advising her of employment opportunities within the community. Claimant testified that she did not pursue any of those opportunities. 11. The claimant admitted that she failed to attend the employer's job fair. The claimant testified that she did not attend the job fair because: "I figured that, you know, that I'd probably be able to find something,..... 12. The claimant received unemployment compensation from the date the job ceased on May 20, 1995 through the date of the hearing. She described receiving $190.00 per week. 13. In support of its petition, the defendant presented the testimony of Katherine English. Ms. English is the Personnel Director and she handled recruitment, discip- linary matters, workers' compensation claims, safety and management counselling. Ms. English was aware that the claimant had suffered a 1990 work injury and had returned to work and had worked exclusively in light-duty secre- tarial positions. 14. Ms. English described the following activities to assist the claimant and all other employees in furthering their career interests: a. Ms. English posted career opportunities each week in each building; b. Ms. English extensively described a variety of services which were available to the claimant including the Department of Labor services, Job Training Partnership Act services of assessment, training, testing and counselling. .. Elise Shockey 5.5. '187-48-3490 Reinstatement Page 5 FINDINGS OF FACT (Continued): 15. Ms. English testified that the claimant received severance pay for 28-3/4 weeks for a total payment of $9,781.61. 16. Ms. English testified the claimant received a six-week "stay bonus" which was in the amount of $2,041.38. Claimant also received $1,247.51 in accrued vacation payments. 17. Ms. English testified that the following jobs were available to the claimant and she explained that an employee would fill out an internal application form. Ms. English testified the jobs were available to the claimant after her employment ceased and that these jobs were within the claimant's restrictions and capabilities in her opinion. Ms. English described the availability of a direct mail job which was mostly clerical. She stated that the direct mail coordinator position was available in May of 1994 and continued to be available after the time claimant left employment. Ms. English described a salary range of $15,450.00 to $19,650.00. 18. Ms. English described a second job as a switchboard operator/customer service representative. She testified that this job was available as of June, 1994 and continued to be available after claimant was laid off. This job required telephone skills and typing. The annual compensation was $12,800.00 to $16,000.00. 19. Ms. English described a third available job as an accounts receivable clerk which was available as of April, 1994. 20. Ms. English described a fourth job as a management assis- tant job which was available as of March, 1994. The management assistant job paid in the range of $12,800.00 to $16,000.00. 21. Ms. English testified that claimant failed to apply for any of the available jobs. 22. The defendant next presented the testimony of Pamela Louise Manahan. Ms. Manahan had been employed with the company for eighteen years. She worked as an Equal Employment Opportunity Specialist and Safety Coordinator. She described her main function as recruitment. Elise Shockey 5.5. 1187-48-3490 Reinstatement Page 6 FINDINGS OF FACT (Continued): 23. Ms. Manahan testified to a company policy of preference of hiring in-house people as opposed to outside candidates. She testified that she posted the jobs testified to by Ms. English and made them available to the claimant by posting those jobs. Ms. Manahan testified to the accounts receiv- able clerk job in addition to the jobs testified to by Ms. English. The accounts receivable clerk job was a 40-hour per week job with an hourly wage rate of $5.79 per hour. The claimant would perform accounts receivable duties and this job was available on April 19, 1994. Ms. Manahan felt that she knew the claimant for many years and was aware of her restrictions as of 1991. Ms. Manahan felt that the claimant could perform the jobs identified in Exhibits D-2 through D-6 and testified to by Ms, English. 24. The defendant did not offer any medical evidence in this case. Any documentation purporting to show that the claimant was still not disabled is completely absent from this record. 25. The defendant's testimony of two witnesses, namely Ms. English and Ms. Manahan, purported to show that work was available to the claimant and the defendant stated on the record that this evidence showed that work was available as defined by Kachinski vs. WCAB (Vepco Construction Company), 516, Pa. 240, 532 A.2d 374 (1987). 26. This Judge finds that the testimony of the claimant in this case was credible. 27. This Judge finds as a fact that because the defendant did not offer any medical evidence, this is evidence that the claimant remains disabled from performing her time-of- injury job. 28. This Judge finds as a fact that none of the employer's job postings or other communications to its employees in general concerning possible jobs contained all of the characteristics required by Kachinski and its progeny. This Judge finds as a fact that although the employer's witnesses testified that the four positions in particular Elise Shockey S.S. '187-48-3490 Reinstatement Page 7 FINDINGS OF FACT (Continued): which had been posted at various times in 1994, these postings were for the benefit of all employees and none of the jobs discussed were specifically offered to the claim- ant and none of them were open as of May 20, 1995, the date the defendant eliminated the claimant's job. 29. This Judge finds as a fact that the claimant has a contingency fee agreement with her counsel which provides for a fee in the amount of 20\ of compensation due and payable. 30. The claimant has incurred litigation expenses totalling $182.05. 31. The claimant's counsel has submitted time records showing that he has spent a number of hours representing claimant in this matter since May of 1995. He has included an affidavit attesting that his usual hourly rate throughout these proceedings was $100.00 per hour. DISCUSSION: This Judge finds that this case resolvQS upon the legal issue of whether work was available to the claimant as provided by Kachinski and relies on the case of Younq vs. WCAB (Weis Markets, Inc.) 537 A.2d 393 (1988). In this case, our Common- wealth Court stated that "This court has held that a job is not actually available unless there is evidence that the employer named was willing to accept the claimant as the employee with his current physical limitations." In the Younq case, our Commonwealth Court stated that the employer's job referral efforts fell far short of meeting the good faith requirements laid down by the Supreme Court in Kachinski. "One injured at work, stranded into partial disability, deserves more than a generic list describing where he might find some suitable work." In light of the claimant's continued disability, and the fact that the defendant failed to offer any evidence to show the claimant had improved in her physical condition, to the point where she could do her pre-injury job, this Judge finds that no job was actually available to the claimant as to conform to the supreme court's determination in the Harle case and in Kachinski. Elise Shockey S.S. '187-48-3490 Reinstatement Page 8 DISCUSSION (Continued): The defendant in this case contends that the claimant is not entitled to reinstatement of total disability compensation because she lost her jOb solely due to economic factors. The defendant cites the case of Harle vs. WCAB (TeleQraDh Press, ~), 540 Pa. 482, 658 A.2d 766 (1995). In the Harle case, our Supreme Court held that a claimant whose compensation has been suspended because he had been able to return to his time-of- injury job, is not entitled to reinstatement following a lay off. The rationale apparently being since Mr. Harle was able to perform his original job, his income loss after layoff was not due to an injury. However, this Judge agrees with the Claim- ant's argument that the application of Harle to claimants who have not been able to return to their time-of-injury jobs is misplaced. See Crowell vs. WCAB, 665 A.2d 30 (1995). This claimant never returned to her pre-injury job. She worked light duty where she could sit or stand freely. As this Judge reviews the law in the most recent cases following Harle, a claimant who remains unable, due to a work-related injury, to perform her time-of-injury job, is entitled to compensation if, through no fault of her own, she suffers earnings loss, even if the earnings loss is due to purely economic factors. This JUdge finds that in the instant case, the defendant has conceded that claimant remains limited to light duty and because she unquestionably suffered an earnings loss due to her job having been eliminated, the only remaining inquiry is to determine the relevance of the employer'S proffered evidence. This Judge concludes that defendant's witnesses and their testimony is not relevant. The Kachinski requirements are well known: 1. The employer who seeks to modify a claimant's benefits on the basis that the claimant has recovered some or all ability must first produce medical evidence of a change in condition, 2. The employer must produce evidence of referral to then-open jobs which fit into the occupational category for which the claimant has been given medical clearance. Elise Shockey S,S. 1187-48-3490 Reinstatement Page 9 DISCUSSION (Continued): 3. The claimant must demonstrate that he acted in good faith in following through on job referrals; and 4. If the referrals fail to result in a job, then the claimant's benefits should continue. This Judge's above analysis results in the conclusion that the defendant failed to meet the Kachinski requirements, the defendant has failed to meet the test that work was actually available to the claimant. In the jobs testified to by the defendant's witnesses, there is no evidence that any of these jobs were specifically offered to the claimant nor any other jobs at the Blue Ridge Summit facility actually opened as of May 20, 1995, the date that the claimant's job was eliminated. CONCLUSIONS OF LAW: 1. In all matters material to this petition, the parties are bound by the provisions of the Pennsylvania Workmen's Compensation Act. 2. A suspension agreement admits that the claimant has on- going disability. The claimant who seeks to have a suspension lifted need only establish that the basis for the suspension, i.e. available work, no longer exists. The burden then shifts to the omployer to prove either that the claimant is no longer disabled, or that work is available within the claimant's capabilities. If the claimant is still disabled, and no work is available that she is capable of performing, compensation must be reinstated. See Latta vs. WCAB (Latrobe Die Castinq Co.), 537 Pa. 223, 642 A.2d 1083 (1994). 3. Because the employer in this case admitted that it did not specifically offer alternative work to the claimant, this Judge concludes that the employer has failed to meet its burden of proof in this case and has not shown that work was available to the claimant at her light duty job which was eliminated. Elise Shockey 5.5. 1187-48-3490 Reinstatement Page 10 CONCLUSIONS OF LAW (Continued): 4. This Judge concludes that merely providing general information to all employees about jobs that may be open does not constitute a referral to a current open job with claimant's restrictions as required by the Kachinski case. 5. Therefore, this Judge concludes that the claimant is entitled to reinstatement of compensation for total disability as of May 21, 1995. Said reinstatement shall continue until such time as it is modified, suspended or terminated in accordance with the Act. 6. This Judge concludes that where the claimant succeeds in a litigated case, reasonable counsel fees must be awarded against the defendant under Section 440 of the Act, unless the defendant meets its burden of establishing facts sufficient to prove a reasonable basis for the contest. This Judge finds that there was no legal foundation for the defendant's contention that work was available to the claimant, especially in light of the rulings following Kachinski and Harle. This Judge concludes that the defendant has failed to establish that it has a reasonable basis for contesting this case. Therefore, this Judge awards a counsel fee in the amount of $1,396.00 based upon the time records submitted by claimant's counsel. This counsel fee is assessed against the defendant pursuant to Section 440 of the Pennsylvania Workmen's Compensation Act. The fee assessed pursuant to Section 440 of the Act shall be a credit against fees paid by the claimant on her own behalf pursuant to Section 442 of the Act and no fees shall be deducted from compensation pursuant to Section 442 until such time as Section 440 fee credit has been exhausted. 7. The fee agreement between claimant and her counsel is approved. Once the Section 440 fee credit is exhausted, defendant shall begin deducting 20\ of compensation and shall pay same directly to claimant's counsel as a fair and reasonable fee. 8. The defendant is entitled to a credit for unemployment compensation benefits paid to the claimant. Said credit shall be deducted from claimant's compensation. '. Elbe Shockey S.S, '187-48-3490 Reinstatement Page 11 CONCLUSIONS OF LAW (Continued). 9. Defendant remain. liable for reasonable and necessary medical expense. incurred for treatment of claimant's work-related injury, 10. Interest at the etatutory rate of 10' per annum is due on all unpaid compensation. 11. The defendant shall reimburse claimant's counsel for litigation expenses in the amount of $182.05. ORDER: AND NOW, to wit, on this 12th day of July, 1996, the petition for reinstatement filed herein is hereby granted. The defendant is ordered and directed to pay claimant compensation for total disability commencing on May 20, 1995 to the present and into the indefinite future. The defendant shall pay to claimant's counsel a reasonable attorney fee based upon the time records submitted by claimant's counsel. No fees shall be deducted from the claimant under Section 442 of the Act until such time as the Section 440 fee credit has been exhausted in this case, Defendant is entitled to a credit of unemployment compen- sation benefits paid to the claimant. The defendant remains liable for reasonable and necessary medical expenses. Interest at the statutory rate of 10\ per annum is due on all unpaid compensation. The defendant shall reimburse claimant's counsel for litigation expenses in the amount of $182.05. tbem July 12, 1996 /}j vf~ ~~ Charles F. Clark Workers' Compensation Judge 9"~, -._ .' .. .' , , . " I " " LISC-475 REV ".82 '* COMMONWEALTH OF PENNSYLVANIA DEPARJ'MENT OF LABOR AND INDUSTRY BIJREAU OF 1I'OIlXEllS' COI.IPENs.mON IlAlUUSBURG, PA 171~501 April 1. 1999 The fo....going ill he....by certified to be a true and correct copy of Jud!!e Charles F. Clark's Decision Circulated Ju1v 12. 1996 Elise Shockey vs. in the..... of Tab Books. S.S. 11187-48-3490. D/l 6/11/90 as full, entire, and .omplete as the same remains on file in the Bureau of Wor""n' Compensation of the Department of Labor and Industry, Certified this 1st day of April 19 99 z.. . L.-eA/6.Lt....... Ac8.~g Chief Records Management Division ATI'EST: I he....by .ertify that Laura S. Keller , who signed the foregoing, was at the time of signing, Chief, Records Management Division, Bureau of Workers' Compensation, and as such, was the legal custodian of the above-described records. ....-. ~" .!'~~(!...:~;" ., ^ ~~'.;... -......... - ~'" .J'. , ;!j .: .- ." IN TESTIMONY WHEREOF, I have hereunto set my hand and caused the seal of the Department of Labor and Industry to be affixed on '. ., this 1st day of Aoril , I9~, ~ S,eal of the Department olLobor and Industry .~u.6u !J;' '1u1- Sandr J. Neal ~' / -/ /, / "// 15: -= ~ ~ -, ,- LUQ N f~:< ~~j - -7 -- c..:>::t ~- ig a.. ()?:i -;~ >- ff \0 ~(/) % !,!,! 00:: IT:Z ulLtJ , _I" "- eLl 0_ I- "'" :~ u. 0" :::l Q en 0 " -.. " . , , ~ ". ~ , l; ,\