AND NOW, this 14th day of September, 2009, it is hereby ORDERED as follows:
The opinion of the court was delivered by: Judge LEAVITT*fn1
(1) The opinion in the above matter, filed June 25, 2009, is hereby AMENDED as shown in the highlighted language of the attached opinion.
(2) The opinion in the above matter shall be designated OPINION rather than MEMORANDUM OPINION, and it shall be reported as amended by this Order.
Submitted: February 20, 2009
Amended: September 14, 2009
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
World Kitchen, Inc. (Employer) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) denying Employer's modification petition. In doing so, the Board stated that it was affirming the decision of the Workers' Compensation Judge (WCJ). In this appeal, the principal issue we consider is whether a claimant must present medical evidence to defeat the grant of a modification petition where the employer's medical expert testifies that the claimant may work forty hours a week and up to ten hours in any single day and that testimony is credited by the WCJ.
Shannon Rideout (Claimant) has worked for Employer for over sixteen years, performing a variety of factory jobs, including assembler and line operator. On September 26, 2005, she sustained a work-related back injury when she slipped on stairs at Employer's premises. After filing a claim petition, Claimant was awarded total disability benefits.
Employer's doctor released Claimant to perform sedentary work, forty hours per week, as of September 6, 2006, and Employer made such work available to her. Claimant did not report for work on September 6, but she did report to work on September 7, 2006. Employer issued a Notification of Modification, modifying Claimant's benefits based on the wages of the full-time sedentary job. Claimant challenged the Notification of Modification.
Employer also filed a modification petition based on the specific job it had made available to Claimant. Employer sought a modification, and not a suspension, because the new job paid a slightly lower hourly rate than Claimant's pre-injury job.*fn2 In her answer, Claimant admitted that a specific job had been offered to her. She also alleged that she had attempted to return to work each day after September 6 "with varying degrees of success due to her work injury."*fn3
Reproduced Record at 5a (R.R. ___).
At the first hearing before the WCJ on October 10, 2006, the parties addressed Claimant's challenge to the Notification of Modification, which was based on her belief that she was not capable of working forty hours a week. Since September 6, Employer had been paying Claimant partial disability, based on the difference between the wages from the light-duty job and her pre-injury job.
However, Claimant asserted that Employer should base her partial disability on the actual wages she earned, week-by-week. The WCJ agreed with Claimant's position. As a result, Employer agreed to pay Claimant disability based on her actual earnings retroactive to September 6, pending a decision on its modification petition.
The parties continued to litigate Employer's modification petition before the WCJ. The WCJ explained that Employer had the burden to show that there was work available. Employer's counsel replied that our position is that the work is available, we haven't received any excuses from any doctor saying that [Claimant] can't work the forty hours a week, nor have we received any excuses for the days that she's taken off work.
R.R. 21a. In response, Claimant agreed that she "should be able to do the [full-time] work" Employer made available to her, but Claimant argued that she sometimes has to go home because of back pain, and "if that's related to her work injury, then she's entitled to partial benefits." R.R. 23a.*fn4
In support of its modification petition, Employer presented the deposition testimony of William J. Beutler, M.D., a board-certified neurosurgeon who focuses exclusively on spinal care. Dr. Beutler reviewed Claimant's medical records and various radiographic test results. The records document that Claimant was complaining of back pain prior to sustaining her work injury. A lumbar MRI from October 13, 2005, and a thoracic MRI from November 10, 2005, both revealed long-standing degenerative changes at the T12-L1 verterbrae that pre- existed Claimant's work injury. A bone scan confirmed that Claimant had only degenerative changes with no acute fracture at the T12-L1 verterbrae. Dr. Beutler, and every radiologist who interpreted the tests, saw no fracture.
At Employer's request, Dr. Beutler examined Claimant on May 9, 2006; the results were normal, with the exception of limitations in her back range of motion. Based on Claimant's subjective symptoms, Dr. Beutler diagnosed her work injury as an exacerbation of her pre-existing degenerative condition at the T12-L1 verterbrae and released her to perform full-time sedentary work, which involves lifting up to ten pounds and standing or walking one to four hours a day. Dr. Beutler viewed a videotape of various factory jobs Employer had available for Claimant, and he approved each job as appropriate and well within Claimant's restrictions. He noted that the jobs allowed Claimant to sit or stand, as needed. As of November 3, 2006, Dr. Beutler released Claimant to perform the light jobs up to ten hours per day. Dr. Beutler saw no reason for Claimant to have to rotate between different jobs; to miss work; to come in late or to leave early while employed at any of these jobs.
Dr. Beutler examined Claimant again on February 9, 2007. Dr. Beutler found no problems except for subjective pain complaints when he touched her back. However, these complaints did not correlate to an actual clinical problem. Dr. Beutler felt that Claimant's condition had improved and that she could now lift up to twenty pounds and could stand or walk for four to six hours.
Employer presented testimony from Carol Shaw, who is Claimant's supervisor. Shaw explained that Dr. Beutler approved an "assembler" job for Claimant, which consisted of various jobs, such as placing a sticker on a finished product, placing a pad in a box, inserting labels, placing plastic covers on bowls and using a one-pound tool to scan tickets. These tasks fell within Dr. Beutler's restrictions. Shaw told Claimant to tell her if she had problems performing the jobs. On one occasion, Claimant did so, complaining that the assembly line was moving too fast. On several other occasions, Claimant informed Shaw that she had to leave work early because her back hurt.
Employer also presented testimony from Cynthia Goetz, Employer's Human Resource Generalist. Goetz confirmed that since September 6, 2006, Employer has made at least forty hours of light work available to Claimant each week. When Goetz told Claimant in November 2006 that Dr. Beutler had released her to work ten hours a day, Claimant said "okay." Claimant was offered ten hours of work on November 6th, 7th, 8th and 13th, but she never worked a ten-hour day. She worked eight hours on three of the days, and she did not work at all on one of the days. Claimant often failed to work eight hours on the days she was scheduled to work eight hours. Claimant has never informed Goetz that the jobs fall outside of her restrictions. Goetz testified that on various days since September 6 when Claimant either missed work, came in late or left early, she told Employer to charge her for Family Medical Leave Act (FMLA) leave, in accordance with the notes provided by her doctor.
Claimant's FMLA paperwork was submitted into evidence. Dr. Mark Holencik reported on August 10, 2006, that Claimant has "multiple subacute spinal fractures, coexisting arthritis and persistent spasm T11-T12-L1" and that she "may miss occasional work days due to severe back ache and spasm." R.R. 112a-113a. An October 11, 2006, note from Dr. Holencik states that Claimant may continue modified duty, eight hours per day, forty hours per week but does not state, or suggest, ...