Hertz Penske Truck Leasing Co. v. W.C.A.B. (Bowers)

• Citation: 651 A.2d 1145,168 Pa.Cmwlth. 657
• Parties: HERTZ PENSKE TRUCK LEASING COMPANY, Petitioner, v. WORKMEN'S COMPENSATION APPEAL BOARD (BOWERS), Respondent.
• Decision Date: 06 February 1995
• Court: Pennsylvania Commonwealth Court

Page 1145

651 A.2d 1145

168 Pa.Cmwlth. 657

HERTZ PENSKE TRUCK LEASING COMPANY, Petitioner, v. WORKMEN'S COMPENSATION APPEAL BOARD (BOWERS), Respondent.

Commonwealth Court of Pennsylvania.

Submitted on Briefs Sept. 21, 1994.

Decided Nov. 30, 1994.

Reargument Denied Feb. 6, 1995.

Dale A. Cable and Rhonda A. Rudman, for petitioner.

Bruce T. Rosen, for respondent.

Before COLINS, President Judge, and DOYLE, SMITH, PELLEGRINI, FRIEDMAN, KELLEY and NEWMAN, JJ.

DOYLE, Judge.

Hertz Penske Truck Leasing Company (Employer) appeals an order of the Workmen's Compensation Appeal Board which affirmed the decision of a referee denying Employer's petition to terminate the disability benefits of Larry Bowers (Claimant).

Claimant worked for Employer as a Service Manager/Supervisor of Maintenance at Employer's Rouseville facility. On December 15, 1987, during the course of his employment, Claimant sustained an injury to his back when he fell into a tank. Claimant continued to work after his injury.

The Rouseville facility was previously owned by Leaseway, but was acquired by Employer in November 1986. Claimant was retrained and continued in his position as a supervisor after the acquisition. On February 3, 1988, Employer told Claimant to resign from his position or he would be fired. Claimant signed the resignation. On March 11, 1988, nearly a month after Claimant's separation from employment, Employer issued a notice of compensation payable for the December 1987 injury.

Thereafter, Employer filed a petition to terminate Claimant's benefits on April 14, 1988, pursuant to Section 413 of the Workers' Compensation Act (Act), ¹ contending that Claimant was completely recovered from the injury to his back as of March 31, 1988. Following a hearing and after receiving medical testimony, the referee concluded that Claimant could return to work, but with restrictions. Accordingly, she denied Employer's petition to terminate. However, the referee also concluded that Claimant's job would have been available to him on March 31, 1988, but for his resignation on February 3, 1988; therefore, she entered a suspension. ² Claimant appealed to the Board which remanded the case for further findings of fact concerning the voluntariness of Claimant's resignation, based on testimony from Claimant that he resigned under duress.

On remand, the referee made the following relevant findings of fact:

3. The Claimant did not voluntarily resign his employment with the defendant employer on February 3, 1988. Rather, he was confronted by his superiors that day and given the option of either resigning or being fired on the spot for poor job performance; and at that time he signed a letter of resignation.

4. At the time he signed the letter of resignation on February 3, 1988, the Claimant had been told that if he resigned (rather than being fired) he would continue to receive full salary payments for at least a one (1) month period, would receive his accrued vacation time, would continue to be covered for hospitalization, and would be able to collect unemployment compensation. Claimant mistakenly, although in good faith, also believed that he would forfeit his retirement benefits if he was fired rather than resigning.

5. The Defendants have not alleged, and their proofs do not establish, that the Claimant's employment was terminated due to any willful misconduct or intentional violations of work rules. Rather, they felt compelled to dismiss the Claimant because he was not performing his job well enough to satisfy the high level of service which their customers expected and they felt they were in imminent danger of losing their two (2) main customers at that location if a change in management was not made quickly.

In addition to finding that Claimant's separation from employment was not voluntary, the referee also found that Employer had not presented any evidence of available work within Claimant's restrictions. Accordingly, he dismissed Employer's petition and held that Claimant was entitled to continued total disability benefits. Employer appealed to the Board which affirmed. This appeal followed.

Employer argues that the Board erred (1) in remanding the case to the referee for findings of fact concerning Claimant's separation of employment, and (2) that Claimant's benefits should have been suspended after remand because the referee found that Claimant's "resignation" was the result of poor job performance.

Employer's first argument, that the case should not have been remanded to the referee in the first instance, rests on the assertion that there were findings sufficient to conclude that a suspension was properly entered. We disagree.

Claimant's testimony before the first referee raised the question of the voluntariness of his resignation. On cross-examination, Claimant testified as follows:

Q. When you say [your employment] was terminated, can you explain, please?

A. Yes. I was asked to resign or I would be terminated....

....

Q. Just on that point, did you sign a letter of resignation?

A. Yes, under duress.

Q. You claim under duress?

A. Yes, definitely.

(Notes of Testimony 6/18/88 at 8-9.) In spite of this uncontradicted testimony, the referee concluded that Claimant's job would have been available to him but for this resignation, even though Employer never refuted the fact that Claimant quit "under duress." This determination was critical to the fulfillment of Employer's burden of proving that work was available within Claimant's restrictions. The Board, therefore, did not err in holding that further findings were necessary to determine the circumstances of Claimant's separation. Armco, Inc. v. Workmen's Compensation Appeal Board (Carrodus), 139 Pa.Commonwealth Court 326, 590 A.2d 827, petition for allowance of appeal denied, 529 Pa. 636, 600 A.2d 955 (1991); Cudo v. Hallstead Foundry, Inc., 517 Pa. 553, 539 A.2d 792 (1988).

Employer next argues that Claimant's benefits should have been suspended because his employment was terminated as a result of his poor job performance, thus, relieving Employer from demonstrating that work was available within Claimant's physical restrictions. However, a claimant's poor work performance alone, without more, is simply not enough to obviate Employer's burden to demonstrate that there was work available, especially in a case such as this where Claimant was without fault.

An employer carries a heavy burden of proof where it seeks to terminate a claimant's benefits, and a claimant who has been separated from employment effectively enjoys a presumption that such separation occurred through no fault of his own, even when the issue is a suspension. See United Parcel Service v. Workmen's Compensation Appeal Board (Portanova), 140 Pa.Commonwealth Ct. 626, 594 A.2d 829 (1991).

An analysis of the issue in this case begins by observing that Claimant satisfactorily performed his pre-injury job as a service manager right up to the time Claimant was forced to resign under duress, on February 3, 1988. ³ Moreover, there is no dispute that even after Claimant was forced to resign, Employer, then filed a Notice of Compensation Payable, on March 11, 1988, and accepted liability for the injury with full knowledge of the circumstances of Claimant's involuntary resignation. ⁴ Why would Employer have accepted responsibility for compensation if it were going to assert that Claimant was at fault for losing his job or that Claimant wasn't disabled? As the Board so well articulated in its opinion:

Mr. Bowers' circumstances are distinguishable from the fact situation set forth in Christopher ⁵ because Mr. Bowers' separation from his employment occurred prior to the issuance of the Notice of Compensation Payable. While the Defendant could certainly pursue its remedy of terminating benefits, upon a showing that Mr. Bowers' disability had ceased, we believe that the Defendant is now estopped from asserting that Mr. Bowers' benefits should be suspended as a consequence of the circumstances of his separation from employment. They are estopped, we believe, because the Defendant had effectuated Mr. Bowers' separation from employment prior to the issuance of the Notice of Compensation Payable, and, clearly with the knowledge of the circumstances of Mr. Bowers' resignation. (Emphasis in original.)

The relevant inquiry before us is not whether Claimant's separation from employment was due simply to his own inability, because his performance did not measure up to Employer's new standards, but rather, whether there was an element of fault on Claimant's part which removed him from the workforce. See Wells-Moore v. Workmen's Compensation Appeal Board (McNeil Consumer Products Co.), 144 Pa.Commonwealth Ct. 382, 601 A.2d 879 (1992). In other words, in order to prevail, Employer was required to prove either that Claimant's termination was voluntary, or that he was dismissed by Employer for good cause. ⁶

In United Parcel Service the only issue before the Court, one of first impression was whether the claimant's misconduct prior to the claimant's injury, which caused claimant's dismissal, was sufficient cause to enter a suspension. The majority held that it was not; the dissent held that it was. But both the majority and dissent articulated the standard at the outset: whether the claimant was discharged for good cause, and terms such as "misconduct," "good cause" and "willful misconduct" were employed interchangeably. What has never been considered as a standard in any previous case is a claimant's discharge due simply to his own inability to measure up to his employer's new requirements; mere inability or ordinary negligence is not the standard imposed under Section 413 of the Act. See Pieper v. Ametek-Thermox Instruments Division, 526 Pa. 25, 584 A.2d 301 (1990).

Here, the referee specifically found as fact that Claimant's resignation was not voluntary, and there is no question that Claimant had never been charged with...