Sadler v. Philadelphia Coca-Cola

Decision Date07 January 2022
Docket Number1294 C.D. 2020
Parties Carl SADLER, Petitioner v. PHILADELPHIA COCA-COLA (Workers’ Compensation Appeal Board), Respondent
CourtPennsylvania Commonwealth Court

Richard A. Jaffe, Philadelphia, for Petitioner.

Andrea Weaver, Media, for Respondent.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION BY JUDGE COHN JUBELIRER

Carl Sadler (Claimant) petitions for review of the December 1, 2020 Order of the Workers’ Compensation Appeal Board (Board) affirming the May 31, 2019 Decision of a Workers’ Compensation Judge (WCJ) that granted the Petitions for Modification (Modification Petition) and Termination (Termination Petition) filed by Philadelphia Coca-Cola (Employer) and denied and dismissed the Petitions for Modification, Penalty, Reinstatement, and Review Benefit Offset filed by Claimant. As a result, the WCJ modified Claimant's benefits to reflect that Claimant had an earning capacity of $520.00 per week and partially terminated Claimant's workers’ compensation (WC) benefits for work-related injuries from which the WCJ found Claimant had fully recovered. As for Claimant's Petitions, the WCJ concluded that Employer had not improperly taken or handled an offset of Claimant's WC benefits for his receipt of Social Security old age benefits. On appeal, Claimant argues:1 (1) Section 204(a) of the Workers’ Compensation Act2 (Act), 77 P.S. § 71(a), which sets forth an offset for the receipt of Social Security old age benefits, is unconstitutional; (2) the WCJ erred in relying on the labor market survey (LMS), earning assessment, and deposition testimony of Employer's vocational expert, Michael Smychynsky; (3) the WCJ erred in not considering Claimant's status as a Class II felon when determining whether a position was appropriate and/or open and available to Claimant; and (4) the WCJ's Decision did not meet the reasoned decision requirements of Section 422(a) of the Act, 77 P.S. § 834.

I. BACKGROUND
A. Current Petitions

On July 2, 2012, after working for Employer for just four weeks, Claimant sustained the following work-related injuries, which Employer accepted: "a right pinky finger amputation," "distal radioulnar joint subluxation, ECU tendinopathy

, pisotriquetral joint arthritis resulting in pisiform excision, right wrist DRUJ resection" (upper extremity injuries ), and "right transverse process fractures of L2-3 and L4, contusion to the right gluteal region/right hip, fracture of the right 6th rib and right leg radiculitis

, ... and low back sprain" (non-upper extremity injuries). (WCJ's Decision, Findings of Fact (FOF) ¶¶ 1-2.) Claimant received "temporary disability benefits in the amount of $652.00 based on an average weekly wage [(AWW)] of $978.00."3 (Id. ¶ 1.)

Employer filed the Termination Petition on November 9, 2016, asserting that Claimant was fully recovered from the non-upper extremity injuries based on a September 15, 2016 Independent Medical Examination (IME) by Armando Mendez, M.D. Employer later filed the Modification Petition on April 27, 2017, averring that based on Smychynsky's vocational interview and earning power assessment "Claimant had a weekly earning capacity of $520.00 as of March 31, 2017." (Id. ¶ 4.) Claimant filed an Answer to the Modification Petition, denying all of the material allegations, maintaining that Claimant remained totally disabled, and asserting that the results of Smychynsky's earning capacity assessment could not be considered because Smychynsky and Employer's carrier did not comply with the Bureau of Workers’ Compensation Regulations (Regulations). (Id. ¶ 4; Certified Record (C.R.) Item 6.)

On October 30, 2017, Employer's third-party administrator (TPA) issued an Amended Notice of Workers’ Compensation Benefit Offset (Amended Notice of Offset)4 advising that an "offset would be taken due to Claimant's receipt of Social Security old age benefits," which would include a period of recoupment to recover an overpayment of WC benefits. (Id. ¶ 9.) Claimant filed various petitions, including the Petition to Review Benefit Offset (Review Petition), asserting that the offset violates the Act, Employer failed to exercise due diligence when it did not "send Claimant LIBC Employment Verification forms" periodically, and Section 204(a) of the Act is unconstitutional. (Id. ¶ 10.) Employer denied the allegations.

B. Proceedings Before the WCJ

All of the Petitions were assigned to the WCJ, who held hearings at which Employer and Claimant presented the following evidence.

1. Employer's Evidence

Dr. Mendez, who is a board-certified orthopedic spine surgeon, performed IMEs on Claimant on May 22, 2015, and September 15, 2016, and testified by deposition as follows.5 Dr. Mendez examined Claimant's non-upper extremity injuries, reviewed Claimant's medical records and diagnostic records, and observed no objective evidence to support Claimant's ongoing complaints. Thus, Dr. Mendez opined that Claimant's non-upper extremity injuries had resolved and required no further treatment, and Claimant could return to work at the same capacity as before the relevant work injuries. (Id. ¶ 13(g), (j).) In addition, "Dr. Mendez would not impose any restrictions on Claimant's ability to return to work with regard to [those] diagnoses[.]" (Id. ¶ 13(j).) Accordingly, Dr. Mendez completed an Affidavit of Recovery for the non-upper extremity injuries. (Id. ¶ 13(k).) Dr. Mendez noted, on Claimant's physical capacities form, that there could be restrictions placed on Claimant by other physicians for the upper extremity injuries

. In addition, Dr. Mendez observed that Claimant had a slightly antalgic gait at the September IME, which Dr. Mendez attributed to Claimant's "left knee not fully extending" and that Claimant reported having "unrelated left knee arthroplasty." (Id. ¶ 13(i).)

Stephanie Sweet, M.D., "a board-certified orthopedic surgeon with an added qualification in surgery of the hand," testified by deposition in support of Employer's Modification Petition as follows.6 (Id. ¶ 14(a).) Dr. Sweet performed two IMEs on Claimant. The June 23, 2015 IME revealed recent right-hand surgery related to the work injury from which Claimant was still recovering. Dr. Sweet opined that therapy for the hand was proper at that time, Claimant was continuing to improve, and light-duty work was appropriate. (Id. ¶ 14(e).) At the August 2, 2016 IME, Claimant advised Dr. Sweet that the surgery had helped, Claimant had been discharged from the care of the hand surgeon, and Claimant could use the right hand to do things so long as it was not overused. Based upon the physical examinations and a review of updated medical records, Dr. Sweet concluded that Claimant had reached maximum medical improvement for the upper-extremity injuries

and "permanent light-duty status was appropriate." (Id. ¶ 14(h).) Dr. Sweet described Claimant's physical capacities as being "up to 20 pounds of either lifting or carrying on an occasional basis and 10 pounds regularly" and being able to "push and pull about 10 pounds with anything that is repetitive of force with the right hand." (Id. ) Dr. Sweet also testified about reviewing the job analyses provided by Smychynsky, as set forth below.

Smychynsky, "a vocational rehabilitative consultant[,] ... forensic vocational economist," and certified rehabilitation counselor with 28 years of experience, testified by deposition.7 (Id. ¶ 15(a).) Prior to Smychynsky testifying, Claimant objected to the results of that earning power assessment being considered based on various alleged violations of the Regulations. (Smychynsky's Deposition (Dep.) at 5.) Smychynsky then testified as follows. There is no financial interest between Smychynsky and Smychynsky's company and Employer or the TPA. Smychynsky "provided to Claimant a disclosure form indicating the purpose of the evaluation and ... notify[ing] Claimant of the lack of counselor-client relationship, as required by the ... Act." (Id. ¶ 15(d).) In assessing whether work with Claimant's medical releases and vocational abilities was available, Smychynsky reviewed the medical reports of Dr. Mendez and Dr. Sweet and the Notices of Ability to Return to Work that Employer subsequently sent. In addition, Smychynsky interviewed Claimant and obtained information about Claimant's medical condition and treatment, education, military service, work history, computer skills, driving ability, and hobbies, including those which required use of the injured right hand. Following the interview, Smychynsky completed a transferable skills analysis and determined that Claimant's vocational alternatives "were cashier jobs and jobs like that of a security guard, a traffic control worker[,] and some assembly positions." (Id. ¶ 15(i).) Smychynsky checked with Employer to see if there were any positions within Claimant's restrictions and abilities available and there were none. Smychynsky performed the LMS to find appropriate positions, identified 23 specific positions, and performed specific job analyses for 5 of those positions to determine if they were consistent with Claimant's work releases.

These five positions were as follows: (1) a full-time, light-duty position as "a security gate attendant with G4S Security Services" paying $13.00 per hour, which allowed for standing, sitting, walking, and driving, change of position as needed, and minimal use of upper extremities; (2) a full-time, light-duty flagger position with Flagger Force paying $11.50 per hour, which required lifting of up to 25 pounds and walking and standing during the workday; (3) a full-time, light-duty position as a production associate with US Vision/Recaf Optical (US Vision) paying between $12.00 and $14.00 per hour, which had minimal lifting and was mostly sitting, and could be modified to reduce the lifting requirements from 25 pounds to 20 pounds; (4) a full-time or part-time,...

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