City of Pittsburgh v. Workers' Comp. Appeal Bd.

• Decision Date: 25 March 2013
• Citation: 67 A.3d 1194
• Parties: CITY OF PITTSBURGH and UPMC Benefit Management Services, Inc., Appellants v. WORKERS' COMPENSATION APPEAL BOARD (Robinson), Appellee.
• Court: Pennsylvania Supreme Court

67 A.3d 1194

CITY OF PITTSBURGH and UPMC Benefit Management Services, Inc., Appellants

v.WORKERS' COMPENSATION APPEAL BOARD (Robinson), Appellee.

Supreme Court of Pennsylvania.

Argued Oct. 18, 2011.

Decided March 25, 2013.

Bradley R. Andreen, O'Brien, Rulis & Bochicchio, L.L.C., for Appellants.

Darryl R. Slimak, McQuaide Blasko Law Offices, State College, for Pennsylvania State University, Appellant Amicus Curiae.

Lawrence R. Chaban, Lawrence R. Chaban, Attorney At Law, for Dorothy Robinson, Appellee.

Amber Marie Kenger, Richard C. Lengler, Harrisburg, Workers Compensation Appeal Board, for Workers' Compensation Appeal Board, Appellee.

Daniel King Bricmont, Caroselli, Beachler, McTiernan & Conboy, L.L.C., Pittsburgh, for Pennsylvania Association for Justice, Appellee Amicus Curiae.

BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.

OPINION

Chief Justice CASTILLE¹.

This appeal involves the assignment of the burden of proof in a workers' compensation case when the employer seeks to modify or suspend a claimant's benefits on the basis that the claimant has retired. The Commonwealth Court plurality devised a “totality of the circumstances” test and concluded that the employer in the case sub judice failed to show that the injured worker had voluntarily withdrawn from the workforce. For the reasons herein, we affirm the order of the Commonwealth Court.

Dorothy Robinson (“Claimant”) began working as a police officer of the City of Pittsburgh (“Employer”) on April 17, 1989. In 1997, she sustained a work-related injury and Employer placed her in a light-duty position performing office work in the identification section. On October 15, 2001, while Claimant was traveling to an appointment to obtain treatment for her work-related injury, she was involved in an automobile accident in which she sustained new injuries. Employer accepted the subsequent injuries through a Notice of Temporary Compensation Payable dated December 18, 2001. After the accident, Claimant did not return to her light-duty position, nor was she offered any other light-duty work.

In either November or December 2004, Claimant sought and received a disability pension, which is awarded to Pittsburgh police officers if a work-related injury “disable[s]him or her from performing the duties of his or her position or office.” 53 P.S. § 23564(a). In connection with Claimant's claim of entitlement to a disability pension, she was examined by three physicians who certified that Claimant was unable to perform her pre-injury job as a police officer.

Nearly three years later, on October 30, 2007, Dr. Victor Thomas performed an independent medical examination of Claimant on behalf of Employer. Dr. Thomas concluded that although Claimant was not fit to perform her prior job as a police officer, she could perform modified-duty work; a form attached to the report specified her work restrictions ( e.g., the length of time she could stand during an 8–hour workday; her ability to lift items; physical limitations such as climbing stairs). Report of Dr. Thomas, 11/3/07 at 4 & “Functional Capacities Form.”

On November 8, 2007, Employer sent Claimant a Notice of Ability to Return to Work, advising that she had “been released to return to work in a modified position” pursuant to Dr. Thomas' examination.² On November 21, 2007, Employer filed a Petition to Suspend Compensation Benefits, asserting that Claimant was capable of working, “but has voluntarily removed herself from the work force as she has not looked for or sought employment in the general labor market.” Claimant filed a response, denying the averments of the suspension petition and asserting that she remained attached to the workforce and had registered for work with the Pennsylvania Job Center. She further claimed that she was not presently working only because of the unavailability of work and because Employer had eliminated her light-duty position.

The WCJ conducted three hearings between January and October 2008. Claimant, who was fifty-two years old at the time of the January 2008 hearing, testified regarding her prior employment, her physical condition, her receipt of benefits, and her attempts to find work. Claimant also offered the deposition testimony of Deborah Curry, a Senior Claims Examiner for UPMC Work Partners, who testified regarding the termination of the light-duty work program previously offered by Employer. Employer submitted the deposition testimony of Dr. Thomas, as well as another doctor's report regarding Claimant's medical condition.

The Workers' Compensation Judge (“WCJ”) denied the suspension petition, concluding that Claimant had not voluntarily removed herself from the workforce. The WCJ explained that when an employer terminates the position of a worker injured during the course of employment, the employer must provide the claimant with temporary total disability benefits. If the employer later seeks to modify or suspend the benefits, the employer must show the availability of suitable work. Yet here, the WCJ found, Employer never offered Claimant any light-duty work and in fact in 2003 abolished the modified duty program in which she had been employed; nor did Employer produce any expert testimony, via an earning power assessment, showing that there were vacancies in the local job market that Claimant was qualified to perform.

The WCJ also found controlling this Court's decision in Southeastern Pa. Transp. Authority (“SEPTA”) v. WCAB (Henderson), 543 Pa. 74, 669 A.2d 911, 913 (1995), which held that for disability benefits to continue following retirement, a claimant must show that he or she is seeking employment after retirement or that he or she was forced into retirement due to the work injury. The WCJ concluded that Claimant was forced into disability retirement when Employer eliminated her light-duty position. Furthermore, even assuming that Claimant had the burden to show that she was seeking employment, the WCJ concluded that she had met that burden. The WCJ credited Claimant's testimony that as soon as she received the Notice of Ability to Return to Work, she reported to the Pennsylvania Job Center; that she had debilitating pain and did not know what level of work she could do; and that her condition had worsened since 2001, when she had last performed the light-duty work.

Employer appealed to the Workers' Compensation Appeal Board (“Board” or “WCAB”), which affirmed the WCJ's decision. Employer appealed to the Commonwealth Court, which affirmed in an en banc, plurality decision, with three judges joining the lead opinion authored by the Honorable Renée Cohn Jubelirer, one judge concurring in the result, and three judges dissenting. City of Pittsburgh v. WCAB (Robinson), 4 A.3d 1130 (Pa.Cmwlth.Ct.2010).

Before the Commonwealth Court, Employer asserted that the Board erred in (1) upholding the WCJ's finding that Claimant remained attached to the workforce when this finding was not supported by substantial evidence; (2) affirming the WCJ's finding that Claimant was forced out of the entire workforce; and (3) determining that Employer was required to present evidence of the availability of suitable work within Claimant's abilities in order to suspend benefits. 4 A.3d at 1133.

The plurality reviewed the pertinent law. Initially, the court explained, to secure a suspension of a claimant's benefits, an employer must meet the following requirements:

(1) The employer who seeks to modify a claimant's benefits on the basis that he has recovered some or all of his ability must first produce medical evidence of a change in condition.

(2) The employer must then produce evidence of a referral (or referrals) to a then open job (or jobs), which fits in the occupational category for which the claimant has been given medical clearance, e.g., light work, sedentary work, etc.

(3) The claimant must then demonstrate that he has in good faith followed through on the job referral(s).

(4) If the referral fails to result in a job then [the] claimant's benefits should continue.

4 A.3d at 1134, quoting Kachinski v. WCAB (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374, 380 (1987). The court indicated that pursuant to Section 306(b)(2) of the Act, 77 P.S. § 512(2),³ an employer who seeks to modify or suspend a claimant's benefits generally must either: (1) show that it referred the claimant to a then-open job that fits within the occupational category for which the claimant has been given medical clearance, in accordance with Kachinski; or (2) establish a claimant's “earning power” through expert opinion evidence, such as job listings with employment agencies or advertisements in the claimant's usual area of employment. 4 A.3d at 1134 (citing South Hills Health System v. WCAB (Kiefer), 806 A.2d 962, 966 (Pa.Cmwlth.Ct.2002)).⁴

The plurality also recognized that pursuant to Henderson, the employer need not prove the availability of suitable work in a circumstance where the claimant voluntarily removes herself from the labor market through retirement. To the contrary, when a claimant has retired, the claimant bears the burden of showing either that her work-related injury forced her out of the entire workforce, or that she is seeking employment after retirement. The court identified the relevant inquiry in this case as “when the burden should shift from an employer to show the availability of suitable work, under the Kachinski standard, to a claimant to show that she is still attached to the workforce or was forced out of the entire workforce by her work-related injury, under the Henderson standard. In other words, when is a claimant ‘retired’ such that Henderson and its progeny apply?” 4 A.3d at 1135.

In addressing this question, the plurality noted that Employer assumed that Claimant had retired merely because she had accepted a disability pension. The court further observed that disputes concerning whether a claimant has retired had not been frequently...