St. Luke's Hosp. v. Workers' Comp. Appeal Bd.

• Decision Date: 18 November 2013
• Docket Number: No. 206 C.D. 2013,206 C.D. 2013
• Parties: St. Luke's Hospital, Petitioner v. Workers' Compensation Appeal Board (Arthofer), Respondent
• Court: Pennsylvania Commonwealth Court

St. Luke's Hospital, Petitioner v. Workers' Compensation Appeal Board (Arthofer), Respondent

No. 206 C.D. 2013

COMMONWEALTH COURT OF PENNSYLVANIA

Submitted: May 31, 2013

November 18, 2013

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE COHN JUBELIRER

St. Luke's Hospital (Employer) petitions for review of the Order of the Workers' Compensation Appeal Board (Board) that affirmed a decision of the Workers' Compensation Judge (WCJ) denying Employer's Petition to Suspend and/or Modify (Petition) the workers' compensation (WC) benefits of Angela Arthofer (Claimant) under the Workers' Compensation Act¹ (Act). Because Employer did not meet its burden to prove that Claimant's loss of earnings was no longer related to her work-related injury, and the WCJ's decision is reasoned, we affirm.

Claimant, a registered nurse, sustained a work-related injury to her right wrist while lifting a patient on November 18, 2008. (WCJ Decision, Findings of Fact (FOF) ¶¶ 1, 7.) Employer accepted liability through the issuance of a Notice of Compensation Payable and Claimant initially received compensation for total disability. (FOF ¶¶ 2-3.) In February 2009, Claimant returned to work with a loss of earnings documented by a series of Supplemental Agreements. (FOF ¶ 3.) "Total disability precipitated by surgery recurred as of April 29, 2009." (FOF ¶ 4.) On October 6, 2009, Dr. Stephen Cash, a board certified orthopedic surgeon, conducted an independent medical examination of Claimant and concluded that Claimant was not fully recovered, but was capable of returning to work with restrictions.² (Cash's Dep. at 17, R.R. at 126a.) The medical testimony of Dr. Cash is unchallenged. (FOF ¶ 7.) On December 29, 2009, Employer advised Claimant "by letter that her employment would terminate as of January 23, 2010 unless she returned to work in some capacity."³ (FOF ¶ 5; Letter from Employer to Claimant (December 29, 2009), R.R. at 91a.) Employer also sent Claimant Notices of Ability to Return to Work dated December 23, 2009 and February 3, 2010. (Notice of Ability to Return to Work, December 23, 2009, R.R. at 210a; Notice of Ability to Return to Work, February 3, 2010, R.R. at 212a.) Claimant "promptlyresponded by letter . . . indicating her willingness to return to work within her . . . restrictions." (FOF ¶ 6.)

On March 7, 2010, Claimant applied online for an open registered nurse position with Employer. (FOF ¶ 8.) On the application was a question regarding whether Claimant had "ever been involved in a founded or indicated report of abuse or neglect of children or adults under the laws of Pennsylvania or any other jurisdiction"; in response, Claimant checked the "No" box. (FOF ¶ 8.) If an applicant checked the "No" box, there was no opportunity or space on the online application for further explanation. (FOF ¶ 15c; Employment Application at 4, R.R. at 82a.)

Laurie Gates, Manager of Employer's Urgent Care and Occupational Health Program (Manager), reviewed Claimant's online application, found it suitable, and asked her to come in for an interview for a part-time job that was within her restrictions. (FOF ¶ 17c.) Manager considered Claimant to be the best fit for the department and referred her application to Leann Viglianti, Coordinator for Nurse Recruitment (Nurse Recruiter). (Nurse Recruiter's Dep. at 18, 20, R.R. at 167a.) Nurse Recruiter telephoned Claimant on March 30, 2010 regarding the part-time position and asked Claimant to stop by the office to sign the application and fill out some forms to process the background clearances. (Nurse Recruiter's Dep. at 30, 32, R.R. at 170a.) During this telephone call, Claimant shared with Nurse Recruiter that Claimant had been told that she had been listed on a child abuseregister (ChildLine),⁴ with a different date of birth and was not sure if her name was still listed at the present time. (Nurse Recruiter's Dep. at 33, 35, R.R. at 170a-71a.)

Claimant arrived at Employer's office on April 12, 2010 to sign her application and release forms. At that time, Claimant wrote by hand onto her application that her name had appeared on the ChildLine register, she was not sure if her name remained on it, and she believed it may have been a mistake. (FOF ¶ 9.) Thereafter, Employer received Claimant's Pennsylvania Child Abuse History Clearance form showing that she was listed as a perpetrator on three reports dated April 17, 2001, and setting forth the status of those reports as "indicated."⁵(Pennsylvania Child Abuse History Clearance, R.R. at 120a.) On May 12, 2010, Employer requested that Claimant provide details of her version as to why her Pennsylvania Child Abuse History Clearance form stated that she was listed in the ChildLine register as a perpetrator on three reports. (FOF ¶ 10; Letter from Employer to Claimant (May 12, 2010), R.R. at 99a.)

Claimant responded by letter, dated May 17, 2010, stating that her ex-husband had been investigated on two occasions: in 2001 after Claimant filed a complaint against him for abusing her minor child, and in 2007 after another of her minor children made allegations of abuse against him. (Letter from Claimant to Employer (May 17, 2010) at 1, R.R. at 102a.) Claimant responded further that, during the 2007 investigation, the caseworker told Claimant that her name was on ChildLine but the registry files had conflicting information regarding whether Claimant was listed or not since one report was expunged and another remained on file.⁶ (Claimant's Letter to Employer (May 17, 2010) at 1, R.R. at 102a; FOF ¶ 11.) Claimant also attached documentation to her response which included a copy of a juvenile court dependency adjudication (Adjudication) finding that her ex-husband had indecent contact with her minor child in 2001 and stating that she wasnot the original perpetrator of the child abuse or an active participant. (Adjudication, R.R. at 104a.)

On May 26, 2010, Employer replied by letter that Claimant's listing on ChildLine "adversely affects [her] suitability for employment" with Employer because "persons named [on ChildLine] may not be hired in child care services according to the Pennsylvania Child Protective Services Law [(CPSL)]"⁷ and that, when she checked the "No" box on her online application, this constituted a lack of honesty and openness; consequently, Employer "terminated [Claimant's] employment effective May 25, 2010." (Letter from Employer to Claimant (May 26, 2010), R.R. at 121a.) On June 8, 2010, Employer filed the instant Petition on the grounds that it had offered Claimant a specific position and she voluntarily withdrew from the workforce. (Petition at 1, R.R. at 1a; FOF ¶ 14.) Hearings before the WCJ ensued.

On September 21, 2010, in the presence of the WCJ and in support of its Petition, Employer presented the deposition testimony of the following employees: Manager; Nurse Recruiter; Barbara Flandorffer, Director of Staffing Resources and Compliance (Director); and Andy Seidel, Assistant Vice President (Vice President). Claimant testified on her own behalf during the hearings.

Before the WCJ, the parties stipulated that the Pennsylvania Child Abuse History Clearance form only indicated that the reports were "indicated," and not "founded," and that "[t]he report clearly indicate[d] that the events happened in2001." (FOF ¶ 12.) With respect to the events surrounding Claimant's application for employment and her listing on the ChildLine register, the WCJ found Claimant's testimony "completely credible." (FOF ¶ 15.) The WCJ found the factual testimony of Employer's witnesses credible except to the extent the testimony included legal opinion. (FOF ¶ 21.) The WCJ concluded that Employer failed to produce credible evidence that Claimant was actually offered employment because the potential offer was never finalized; voluntarily retired from the labor force; committed any crime or abused any child; was ever listed as a perpetrator in a "founded" report of child abuse; was ever listed as a perpetrator in a founded report of child abuse "committed within the five year period immediately preceding verification;" or falsified her application. (WCJ Decision, Conclusions of Law (COL) ¶¶ 2-7.) The WCJ further concluded that Pennsylvania law did not bar Employer from hiring Claimant. (COL ¶ 8.) Specifically, the WCJ reasoned that

[t]his is a most unusual case. It is undisputed that [C]laimant was injured at work, had surgery, yet remains ready, willing and able to go back to work with very modest restrictions against the heaviest lifting. [E]mployer, at least at the operational level, reviewed [C]laimant's history with [E]mployer, interviewed [C]laimant and clearly wanted to give [C]laimant a job, which was open and available. Instead of bringing [C]laimant back to work, [E]mployer fired her.

Why? Ten years ago [Claimant's], now ex-husband, sexually abused [Claimant's] [minor child]. This happened three weeks after they were married. [Claimant] called the police and filed a criminal complaint. The former husband is long since out of the picture. [C]laimant remains in custody of her children. [C]laimant was never charged or convicted of any crime. She never abused a child. No one claims she has. Her name appears on a list. A law to protect children bars childcare services and similar organizations from hiring people who are listed as ". . . the perpetrator of a founded report of childabuse committed within the five year period immediately preceding the verification based on this section." [Section 6344(c) of the CPSL, 23 Pa. C.S. § 6344(c).] In an abundance of corporate caution, the [E]mployer . . . has denied employment to [C]laimant for circumstances of more than ten years ago in which [C]laimant did nothing wrong. So we are left with this issue. May an injured worker be denied compensation for actions they did not commit nearly eight years before the work

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