Wells-Moore v. W.C.A.B. (McNeil Consumer Products Co.)

• Decision Date: 03 January 1992
• Docket Number: P,WELLS-MOOR
• Citation: 601 A.2d 879,144 Pa.Cmwlth. 382
• Parties: Myraetitioner, v. WORKMEN'S COMPENSATION APPEAL BOARD (McNEIL CONSUMER PRODUCTS CO.), Respondent.
• Court: Pennsylvania Commonwealth Court

Page 879

601 A.2d 879

144 Pa.Cmwlth. 382

Myra WELLS-MOORE, Petitioner, v. WORKMEN'S COMPENSATION APPEAL BOARD (McNEIL CONSUMER PRODUCTS CO.), Respondent.

Commonwealth Court of Pennsylvania.

Submitted on Briefs July 19, 1991.

Decided Jan. 3, 1992.

Kathleen Kennedy, for petitioner.

Daniel T. Lewbart, for respondent.

Before McGINLEY and BYER, JJ., and BARRY, Senior Judge.

BYER, Judge.

Ms. Myra Wells-Moore (claimant) appeals the order of the Workmen's Compensation Appeal Board (WCAB) affirming the referee's decision dismissing her reinstatement petition and granting the termination petition of employer McNeil Consumer Products Company (McNeil). Because the referee failed to resolve crucial fact issues, we vacate and remand for further necessary fact-finding.

In 1987, claimant was employed full-time by McNeil as a computer operator. At the same time, she also worked full-time for Amtrak as an associate systems software engineer. ¹ On November 13, 1987, claimant sustained a work-related injury when she slipped and fell in McNeil's parking lot. Claimant received disability benefits at the rate of $336.90 per week, based solely on her salary at McNeil.

Claimant received benefits until April 23, 1988, when she returned to McNeil for part-time, light-duty work. Renewed pain forced claimant to leave McNeil, and her benefits were reinstated until November 14, 1988, when once again, claimant attempted to return to a light-duty position at McNeil. However, at the end of her shift on November 14, 1988, claimant was terminated. Throughout this entire period, claimant continued her employment with Amtrak. ²

Claimant filed a reinstatement petition asserting a recurrence of her disability as of November 15, 1988. Some time later, McNeil filed a petition for termination alleging that claimant had fully recovered from her work injury as of October 6, 1988. The petitions were consolidated, and after conducting several hearings, at which both parties presented evidence, the referee dismissed claimant's petition for reinstatement and granted McNeil's petition for termination to the extent that claimant's benefits were suspended as of November 14, 1988. The WCAB affirmed the referee's decision and claimant filed the present appeal.

Initially, we note that in appeals from administrative agencies, our scope of review is limited to a determination of whether constitutional rights have been violated, whether an error of law has been committed or whether the referee's necessary findings of fact are supported by substantial evidence. 2 Pa.C.S. § 704. Where, as here, the WCAB makes no additional findings in its decision on appeal, the referee is the ultimate fact finder, and we must accept the findings as conclusive if they are supported by substantial evidence. Carrier Coal Enterprises v. Workmen's Compensation Appeal Board (Balla), 118 Pa.Commonwealth Ct. 201, 544 A.2d 1111 (1988). Substantial evidence has been defined as such relevant evidence as a reasonable person might accept as adequate to support the conclusion. Bethenergy Mines v. Workmen's Compensation Appeal Board (Skirpan), 132 Pa.Commonwealth Ct. 277, 572 A.2d 838 (1990), petition for allowance of appeal granted, 527 Pa. 594, 588 A.2d 915 (1991).

Claimant first argues that the referee's findings of fact 4, 5, and 8 were not supported by substantial evidence. These findings state:

4. The Claimant does not have a psychiatric disorder or condition. The Claimant's annoyance with her physical symptoms is not a real material psychological symptom.

5. The Claimant has recovered sufficiently to perform the job offered to her by the Defendant on 11-14-88 (D-1). This job required Claimant to work only 6 hours a day between 8:00 a.m. and 2:30 p.m. and is not significantly different from the job Claimant holds at Amtrak.

8. The Claimant reported for work on 11-14-88 with the Defendant and did not return thereafter. The Claimant's refusal to continue to work after 11-14-88 was not in good faith.

Referee's decision, June 27, 1990, 2.

We add to this list the referee's conclusion of law No. 3 which states:

3. Claimant's refusal to continue with the light-duty job is because it conflicts with her job at Amtrak.

Although the referee has labeled this statement a "conclusion of law," it actually is a finding of fact, and we will consider it as such. ³

With respect to findings 4 and 5, our review of the record reveals that there is substantial evidence to support the referee's findings that claimant was capable of performing the job offered her by McNeil, particularly because her duties there were similar to those she was already performing at Amtrak. The referee reached this conclusion after considering the widely conflicting medical evidence presented by claimant and McNeil. ⁴

We cannot reweigh evidence. As ultimate fact finder, it is within the province of the referee to evaluate evidence and accept or reject the testimony of any witness in whole or in part, including that of medical witnesses. Northeastern Hospital v. Workmen's Compensation Appeal Board (Turiano), 134 Pa.Commonwealth Ct. 164, 578 A.2d 83 (1990); Montgomery County Sheriff's Department v. Workmen's Compensation Appeal Board (Riehl), 125 Pa. Commonwealth Ct. 6, 556 A.2d 962 (1989). Moreover, it is for the referee exclusively to determine witness credibility and evidentiary weight in workmen's compensation cases. Buczynski v. Workmen's Compensation Appeal Board (Richardson-Vicks, Inc.), 133 Pa.Commonwealth Ct. 532, 576 A.2d 421 (1990). Here, the referee chose to accept the testimony of Drs. Rieger, Bala and Byrne that claimant was fit to perform the job offered, and to adopt their opinions as the basis for his decision. We do not disturb findings 4 and 5 on review. ⁵

However, regarding finding 8 and "conclusion of law" 3, we agree with claimant that there is no evidence of record that claimant refused to return to her light-duty job at McNeil after November 14, 1988. On the contrary, rather than indicating that claimant refused to work after November 14, 1988, the record provides undisputed testimony that claimant was dismissed from her position at McNeil and therefore, could no longer report to work.

As the claimant testified:

Q. Okay. And did you continue working after November 14, 1988?

A. No.

Q. And why did you stop working after November 14, 1988?

A. I wasn't able to do all of the duties, and I was terminated.

Q. Okay. Do you know why you were terminated?

A. They told me I was supposed to be able to do all of the duties and that I had another position and that it wasn't acceptable.

Q. Okay.

REFEREE PERNA: What date were you terminated?

THE WITNESS: November the 14th, 1988.

N.T. January 17, 1989, 15 (emphasis added).

McNeil's own witness corroborated claimant's testimony. Clarence Dyer, the claimant's supervisor at McNeil from the time of her injury through November 14, 1988, stated:

Q. Mr. Dyer, for how long did Ms. Moore perform her job when she came back to work on November 14th, 1988?

A. One day.

Q. Did she return to work after November 14th, 1988?

A. Not that I am aware of.

Q. And why did she not return to work after November 14th, 1988?

A. She was dismissed.

Q. And why was she dismissed? You can just explain.

A. It was determined that for the duration of time that she was participating in the Workmen's Comp claim with McNeil she was working full time in another position. Another capacity.

N.T., October 26, 1989, 20 (emphasis added).

As indicated by this testimony, although the reason for her dismissal may be in question, there is no dispute that claimant was terminated on November 14, 1988.

For this reason, "conclusion of law" 3, actually a finding of fact, is unsupported by substantial evidence. Although claimant admitted that the job at McNeil would conflict with her hours at Amtrak (N.T. January 17, 1989, 18-19), there is no indication in the record that claimant refused to continue with McNeil because of the schedule conflict. In fact, the record indicates that Amtrak could readily accommodate any of claimant's scheduling needs. (Anbari Deposition, 69-70; Rieger Deposition, 10, 35). Rather than consciously refusing to return to work at McNeil, claimant's failure to report to her job after November 14, 1988, was a decision that was forced upon her by her dismissal, and any of the referee's findings to the contrary are unsupported by substantial evidence.

Claimant next argues that the referee erred as a matter of law in concluding that claimant's benefits should be suspended as of November 14, 1988, in view of the fact that claimant produced evidence that she remained disabled at the time of her dismissal, while McNeil failed to provide evidence of suitable work that was actually available.

In this regard, the referee reached the following conclusions of law:

1. The claimant has failed to show that she is entitled to a reinstatement of compensation.

2. Defendant has shown that the claimant has recovered sufficiently to perform a lighter duty job. Such a job was offered to the claimant and claimant failed to exercise good faith in refusing to continue at such job for more than one day.

First, we consider the second conclusion of law. Based on the previous discussion, we cannot agree that claimant failed to exercise good faith in refusing to return to her job at McNeil. As we have already stated, although there is evidence that claimant had recovered sufficiently to perform the duties assigned to her in the modified position that was offered, she failed to report after November 14, 1988 because she was fired.

Claimant also contends that she satisfied the burden required to justify a reinstatement of benefits. The WCAB relied on Memorial Osteopathic Hospital v. Workmen's Compensation Appeal Board, 77 Pa.Commonwealth Ct. 518, 466 A.2d 741 (1983) and required claimant to establish that her physical condition had actually changed in some manner; that is, that...