Romano v. Workers' Compensation Appeal Board (Pocono Services for Families and Children), 022120 PACCA, 828 C.D. 2019

Docket Nº:828 C.D. 2019
Opinion Judge:RENÉE COHN JUBELIRER, JUDGE.
Party Name:Carolann Romano, Petitioner v. Workers' Compensation Appeal Board (Pocono Services for Families and Children), Respondent
Judge Panel:BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ELLEN CEISLER, Judge. Judge Fizzano Cannon
Case Date:February 21, 2020
Court:Commonwealth Court of Pennsylvania
 
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Carolann Romano, Petitioner

v.

Workers' Compensation Appeal Board (Pocono Services for Families and Children), Respondent

No. 828 C.D. 2019

Commonwealth Court of Pennsylvania

February 21, 2020

OPINION NOT REPORTED

Submitted: November 22, 2019

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ELLEN CEISLER, Judge.

MEMORANDUM OPINION

RENÉE COHN JUBELIRER, JUDGE.

Carolann Romano (Claimant) petitions for review of an Order of the Workers' Compensation Appeal Board (Board), dated June 12, 2019, that affirmed the decision of the Workers' Compensation Judge (WCJ) to grant Pocono Services for Families and Children's (Employer) petition to modify compensation benefits. Claimant contends substantial, competent evidence does not support modification of her benefits. Specifically, she contends that Employer did not satisfy its statutory burden of proving it did not have a position available for Claimant before relying on an earning power assessment because the only evidence presented by Employer as to job availability was inadmissible hearsay. Additionally, Claimant asserts the opinion of the vocational expert was based entirely on hearsay evidence. For the following reasons, we affirm.

I.

BACKGROUND

Claimant worked for Employer as a preschool teacher until March 19, 2010, when she suffered an injury to her left knee playing freeze tag with children at Employer's playground. A Notice of Compensation Payable (NCP) was subsequently issued accepting the injury as a left knee strain/sprain. As a result of litigation in 2014, the injury was subsequently amended to include a left knee anterior cruciate ligament (ACL) tear. Following an Independent Medical Examination (IME) conducted on April 8, 2016, Employer issued a Notice of Ability to Return to Work on May 26, 2016. On January 12, 2017, Employer filed a modification petition based on a labor market survey and earning power assessment showing that vocationally and physically appropriate work was generally available to Claimant. Thereafter, Claimant filed an answer, denying the averments in the modification petition.

The matter was assigned to a WCJ who held hearings on the petition. In support of its petition, Employer presented the deposition testimony of Ronald S. Kushner (Vocational Expert), who conducted the labor market survey and earning power assessment, and Lucian Bednarz, M.D., who performed the IME.

Vocational Expert testified as follows.1 He is certified by the Department of Labor and Industry to perform earning power assessments and is certified as a disability management specialist. On June 28, 2016, he personally met with Claimant and her counsel to learn about Claimant's previous job experiences and education level. Vocational Expert contacted Employer and was told that no modified or alternative duty work was available for Claimant. He obtained an affidavit from Employer to that effect, which was introduced into evidence over Claimant's hearsay objection.[2] Although Dr. Bednarz cleared Claimant to perform light-duty work, all of the positions Vocational Expert identified were sedentary in nature to make sure they fell within Claimant's abilities.

Based on the interview with Claimant and the IME, Vocational Expert identified four available jobs within Claimant's physical and vocational capabilities. These jobs include a customer service representative position at Wayne Bank; front desk reservationist at Stroudsmoor Country Inn; customer care specialist at Blue Ridge Communications; and dispatcher customer service operator at Altronics Security Systems. Vocational Expert spoke to a manager at each of the prospective employers to obtain information about the respective job duties; he did not personally observe any of the positions, except the Stroudsmoor Country Inn position, which he observed previously for another claimant. Vocational Expert testified he customarily relies on information provided by employers and that he was familiar with the employers he identified, as Vocational Expert had "worked this general area" and "all over Pennsylvania" for 27 years. (Reproduced Record (R.R.) at 172a, 174a.) Because Claimant held customer service type positions in the past, Vocational Expert opined that those skills would be "relatable, transferrable." (Id. at 195a.) Vocational Expert submitted job descriptions for each of the positions to Dr. Bednarz, who approved each position.3 In addition, Vocational Expert sent letters to Claimant advising her of the available positions.4 On cross-examination, Vocational Expert admitted that he did not send Claimant the physical requirements for each position. Vocational Expert concluded, based on the identified jobs, that Claimant had an earning power between $360.00 and $468.75 per week, with an average of $402.19 per week.5

Dr. Bednarz testified, in relevant part, as follows.6 Based upon his examination and review of Claimant's medical history and records, Dr. Bednarz opined that Claimant's injury resulted in permanent light-duty restrictions. Specifically, Claimant could lift up to 20 pounds with frequent lifting up to 10 pounds, and in an 8-hour day, could stand/walk 1 to 4 hours, sit 5 to 8 hours, and drive 1 to 3 hours. She could occasionally bend, squat, or navigate steps, but was restricted from climbing or using ladders. Based upon his review of the job descriptions for the four jobs Vocational Expert identified, Dr. Bednarz opined that Claimant could perform all of those jobs.

Claimant testified in opposition to the modification petition. She testified, in relevant part, as follows.[7] Claimant has a bachelor's degree in early childhood education. She worked at a bank for approximately 6 months 20 years ago. Claimant expressed concern with the position at Wayne Bank because of having to get up and down, walking, and not knowing if she could prop her leg up, and because she suffered a traumatic brain injury in the past that makes math and numbers difficult. As for the position at Stroudsmoor Country Inn, Claimant was concerned with moving back and forth, lifting, walking, and propping up her leg. She expressed similar concerns about the Blue Ridge Communications and Altronics positions, including that the Altronics position was night shift. Claimant testified that she has ongoing problems with her leg and did not believe she could perform any of the positions. She has not returned to work since her injury in 2010. On cross-examination, Claimant admitted that she did not contact any of the prospective employers for additional information or to apply. Claimant did not introduce any medical or vocational evidence.

The WCJ found Dr. Bednarz's testimony "uncontroverted" because Claimant did not call any of her treating physicians to impeach his testimony. (WCJ Decision, Finding of Fact (FOF) ¶ 8.) Accordingly, the WCJ accepted his testimony as credible. The WCJ also accepted Vocational Expert's testimony, which the WCJ said was "carefully considered" in light of the fact that Vocational Expert did not personally observe any of the open positions, which the WCJ found "somewhat troubl[ing]." (Id. ¶ 9.) Despite this, the WCJ found Vocational Expert's testimony concerning the job descriptions credible. The WCJ noted that Claimant did not seek to rebut Vocational Expert's testimony that no work was available and Claimant based her opinion that she could not perform the work "solely on her subjective ideas of what the jobs entailed." (Id.) The WCJ stated...

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