NOW, February 17, 2009, it is ordered that the above-captioned Memorandum Opinion, filed December 11, 2008, shall be designated OPINION and shall be REPORTED.
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE JOHNNY J. BUTLER, Judge.
Channellock, Inc. (Employer) petitions for review of an order of the Workers' Compensation Appeal Board (Board), which affirmed a workers' compensation judge's (WCJ) order denying Employer's Petition to Terminate and/or Suspend Compensation Benefits (Termination/Suspension Petition) and granting L. Thomas Reynolds' (Claimant) Petition to Reinstate Compensation Benefits (Reinstatement Petition). Employer argues that the WCJ and the Board erred in their interpretation of this Court's decision in Ryan v. Workmen's Compensation Appeal Board (Port Erie Plastics, Inc.), 639 A.2d 866 (Pa. Cmwlth. 1994), in granting Claimant's Reinstatement Petition.
Employer is in the business of manufacturing tools. In July 2001, Claimant was standing inside an industrial-size vat cleaning the interior, when he slipped on sludge on the floor of the vat and fell.*fn1 During the fall, Claimant's head and back struck a heating element that was inside the vat. It was eventually determined by a WCJ that Claimant sustained an annular tear and herniated disk at the L5-S1 level. The WCJ concluded that Claimant was to receive a period of total disability benefits followed by ongoing partial disability benefits. Claimant had surgery for his work injury in February 2002. In May 2002, Claimant returned to work in a modified-duty position in a different part of Employer's plant. However, that portion of the plant subsequently closed and Claimant was moved back to the portion of the plant that he had worked in when he was injured. Upon his return to this portion of the plant, Claimant was not required to do any work. "He basically sat and read novels and did crossword puzzles and was not allowed to talk to any of the other employees." (WCJ Decision, Findings of Fact (FOF) ¶ 1.)
In December 2003, Claimant fell asleep at work and one of Employer's managers disciplined him, in writing, for falling asleep on the job. Claimant requested that Employer move him to a position that would keep him more mentally alert. Toward that end, Employer transferred Claimant to a position where he cleaned pliers. Claimant believed that the job requirements exceeded the medical restrictions his doctor had placed on him, but he continued performing the job until the end of March 2004. At that point, Claimant's physician, Steven Gilman, M.D., instructed Claimant to cease working. (Gilman Dep. at 17.)
Subsequently, Employer filed its Termination/Suspension Petition, averring that, as of September 22, 2005, Claimant was fully recovered from his work injury. Claimant filed his Reinstatement Petition, averring that, as of March 24, 2004, he had a recurrence of total disability. The WCJ combined the two matters for hearing.
At the hearing Claimant testified on his own behalf, indicating that his pain medications make him drowsy and that he does occasionally help with his wife's day care service. Claimant also presented the testimony of his treating physician, Dr. Gilman, who testified as to the ongoing nature of Claimant's injury. Further, Claimant presented the testimony of a co-employee, who testified as to the nature of Claimant's pre-injury job. Employer presented the testimony of a human resource person, who testified that regular and light-duty positions were available for Claimant. Employer also presented into evidence a surveillance video of Claimant engaged in various out-of-work activities. In addition, Employer presented the testimony of Mark Foster, Ph.D., M.D., F.A.C.S., who had conducted an independent medical evaluation (IME) of Claimant.
The WCJ denied the Termination/Suspension Petition and granted the Reinstatement Petition. Accordingly, the WCJ concluded that Claimant was entitled to total disability benefits from March 24, 2004, onward. In reaching this decision, the WCJ concluded that the testimony provided by Clamant and his co-employee was credible as to the nature of Claimant's pre-injury work. The WCJ found the human resource person's testimony credible as to the offers of employment, but not credible as to the description of the job duties. The WCJ made no specific findings regarding the respective doctors' testimony, but did find that Claimant was not physically able to perform any of the offered jobs:
16. It is found as fact that the Claimant is not able to perform any of the jobs offered by the Employer due to his work injury. In making this finding, I am relying on the testimony of Mr. Hornstein to the effect that the "no work" position requires the Claimant to remain alert. If the Claimant is caught sleeping on the job he is subject to disciplinary action, including termination from employment. Since the Claimant's medications for his work injury cause him to be drowsy and not alert at times, he is unable to meet the Employer's job requirements for the "no work" position. Therefore, the Claimant is not able to return to work in his regular job, the modified duty jobs or even in the "no work" position.
17. [Employer] maintains that the "no work" position is available to the Claimant based upon [Ryan]. In Ryan, however, the Claimant's treating physician had specifically approved the "no work" position, she returned to work for only 1 hour, the employer provided no specific job requirements, there was no threat of termination from employment and the Claimant actually found a job on her own that was less restrictive than the job offered by the employer. With regard to the Claimant in the case at bar, there is no specific approval for the "no work" position by his physician or the IME physician, he attempted to work in a variety of jobs for almost 2 years, his treating physician supported his position that the nerve pain and the medications he is taking for his work injury cause him to be drowsy and lack the necessary alertness to function properly in a work situation, the employer has provided a specific job requirement that the Claimant remain awake in the "no work" position, when both he and his physician have credibly testified that with his pain and medications he would not be able to meet this job requirement and the Claimant will be terminated if he falls asleep at work. This case is clearly distinguishable from Ryan. Therefore, it is found as fact that the Claimant is not able to return to work in the "no work" position because he does not meet the job requirements for this position as testified by the Employer. (FOF ¶¶ 16-17.) The Board affirmed, noting that the WCJ found the testimony of Dr. Gilman and Claimant credible, and thus finding that substantial evidence supported the WCJ's decision and order. Employer now petitions this Court to review the Board's decision.*fn2
Employer argues that the Board erred in affirming the reinstatement of Claimant's total disability benefits. Employer contends that Claimant could have performed either light-duty work or the no-duty job that was proffered to him, and that the fact that he "might have" fallen asleep is not sufficient ...