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Bentley v. Workers' Compensation Appeal Board

November 18, 2009


The opinion of the court was delivered by: Judge LEAVITT*fn1

Submitted: March 27, 2009



Anthony Bentley (Claimant) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) that affirmed the decision of the Workers' Compensation Judge (WCJ) to grant the modification petition filed by the Pittsburgh Board of Education (Employer). The principal issue in this appeal is whether Employer promptly provided Claimant with a Notice of Ability to Return to Work, as required by Section 306(b)(3) of the Workers' Compensation Act*fn2 (Act). On July 29, 2009, this Court affirmed the Board. Thereafter, Claimant filed a petition for reconsideration, and it was granted; accordingly, the July 29, 2009, opinion and order was withdrawn. The question on reconsideration is whether Claimant is entitled to his litigation costs because the Board changed the effective date of his modification of benefits. Concluding that he is not, we affirm the Board after reconsideration.

On November 20, 2001, Claimant sustained a work injury to his left shoulder while performing his job as an electrician. Employer issued a Notice of Temporary Compensation Payable (NTCP) describing the injury as a left shoulder strain and providing for payment of total disability benefits in the amount of $622.13 per week based on an average weekly wage of $933.20. Reproduced Record at 4a (R.R. ___). The NTCP subsequently converted to a Notice of Compensation Payable.

Claimant's treating physician, Steven E. Kann, M.D., referred Claimant for a Functional Capacities Evaluation (FCE) to determine what level of work he could perform. The FCE was conducted on January 22, 2003, and it revealed that Claimant was capable of at least light-duty work, eight hours per day.*fn3 Accordingly, Dr. Kann issued a report on January 30, 2003, stating that he reviewed the FCE results with Claimant and was releasing Claimant to light duty.

At Employer's request, a vocational expert, Lizbeth Mihok, met with Claimant on March 14, 2003. Thereafter, Mihok did an earning power assessment and labor market survey, locating ten light-duty jobs within 25 miles of Claimant's home. These jobs were found available to Claimant on the basis of his age, education, physical limitations and residual productive skill. Given the wages payable for these jobs, Mihok determined that Claimant had an earning power of $420 per week. The jobs were found to be available as of May 5, 2003.

Employer filed a petition to modify Claimant's benefits to partial disability as of January 22, 2003, the date of the FCE.*fn4 The petition stated, inter alia, that employer had no positions that fit within Claimant's restrictions "from the date of the filing of the relevant Notice of Ability to Return to Work (which was filed on or after 1/22/03) to the date of the filing of the instant Petition." R.R. 7a. Claimant did not file an answer. At the hearing with the WCJ, however, Claimant challenged Employer's assertion that it had no positions appropriate for Claimant. Claimant did not specify any other objections to Employer's modification petition.

At the hearing, Employer presented the FCE results and Dr. Kann's January 30, 2003, medical report. Employer also presented Mihok's testimony concerning her vocational interview with Claimant and the results of her earning power assessment and labor market survey. Because Claimant disputed Employer's claim that it had no jobs that fit Claimant's limitations, Charlotte Borner, Employer's workers' compensation adjuster, and Edward Reinhardt, Jr., its electrical foreman, also testified. Borner and Reinhardt confirmed that Employer did not have a position appropriate for Claimant. Borner also testified about her handling of Claimant's situation. She explained that after receiving Dr. Kann's report in late January 2003 releasing Claimant to light-duty work, she sent Claimant a Notice of Ability to Return to Work, on Bureau Form LIBC-757.

The WCJ granted Employer's modification petition. The WCJ credited the medical opinion of Dr. Kann regarding Claimant's capabilities; the earning power assessment by Mihok; and the testimony of Borner and Reinhardt that Employer had no work for Claimant within his restrictions.*fn5 The WCJ rejected the testimony of Claimant and his vocational witness, Daniel Rappucci, who opined that the jobs located by Mihok were not suitable for Claimant. Concluding that Employer met its burden of proving that there were jobs available to Claimant within his geographic area that fit his capabilities, the WCJ modified Claimant's benefits to the partial disability rate of $342.13 per week as of January 22, 2003.

Claimant appealed, arguing, inter alia, that Employer failed to prove that it gave him a Notice of Ability to Return to Work in a timely manner, an issue not raised at the hearing. The Board remanded for the WCJ to make findings regarding this issue. On remand, the WCJ noted that Employer's Notice did not recite a date of mailing. However, based upon the record, the WCJ found that the Notice was mailed between the FCE on January 22, 2003, and Mihok's vocational interview on March 14, 2003.*fn6 Accordingly, the WCJ determined that Employer provided Claimant with the Notice in a timely manner, and she again modified Claimant's disability benefits.

Claimant again appealed, raising multiple issues, including the argument that his benefits should not have been modified as of January 22, 2003. Observing that Mihok testified the jobs in the labor market survey were available beginning on May 5, 2003, the Board amended the WCJ's decision to effect the modification on this later date. The Board affirmed the WCJ's decision in all other respects. Claimant now petitions for this Court's review.*fn7

On appeal, Claimant presents three issues for our consideration. First, Claimant argues that the WCJ erred because the evidence does not support the conclusion that Employer "promptly" sent him the Notice of Ability to Return to Work. Second, Claimant argues that the WCJ erred in finding that work was open and available in Claimant's geographic area. Third, Claimant argues that the Board erred in refusing to award him litigation costs. We address these issues seriatim.

In his first issue, Claimant argues the evidence does not support the WCJ's finding that Employer sent the Notice between January 22, 2003, and March 14, 2003. Employer counters that evidence demonstrates that the Notice was sent to Claimant no later than March 14, 2003, when Claimant had his interview with ...

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