The opinion of the court was delivered by: Judge Leavitt
Argued: November 10, 2009
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JAMES R. KELLEY, Senior Judge, HONORABLE JIM FLAHERTY, Senior Judge.
Paul Linton (Claimant) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) that denied his request for attorneys' fees incurred in defending the modification petition filed by his employer, Amcast Industrial Corporation (Employer). Claimant asserts that Employer's modification petition, which was its second, was barred by the doctrine of res judicata or collateral estoppel and, as such, unreasonable as a matter of law. Discerning no merit to this contention, we affirm the Board.
This case began when Claimant tripped and fell to the ground at Employer's work site in 1998. Employer accepted liability for Claimant's work-related injury to his left shoulder, and Claimant began receiving temporary total disability benefits as of April 27, 1998. On March 15, 2001, at the request of Employer, Claimant participated in a vocational interview. Based on the interview, Employer filed a modification petition, but it was denied by WCJ Brian J. Eader who found that Employer failed to prove that Claimant was capable of doing the jobs identified by Employer's vocational expert. Employer did not appeal.
On May 21, 2004, after Employer's modification request was denied, John Perry, M.D., an orthopedic surgeon, conducted an independent medical examination (IME) of Claimant. After obtaining the results of Dr. Perry's IME, Employer requested that Claimant participate in a second vocational interview. Claimant refused to do so, arguing that Employer's second modification petition was precluded by res judicata or collateral estoppel. Claimant's refusal came before the Court in Linton v. Workers' Compensation Appeal Board (Amcast Industrial Corporation), 895 A.2d 677 (Pa. Cmwlth. 2006) (Linton I). The principle established in Linton I is that successive vocational interviews over the course of a claimant's receipt of workers' compensation are permitted under Section 306(b)(2) of the Workers' Compensation Act (Act).*fn1 Accordingly, in Linton I, we ordered Claimant to undergo a second vocational interview. This appeal concerns events that followed Claimant's second vocational interview.*fn2
Based upon the results of Claimant's second vocational interview, Employer filed a second modification petition, alleging that Claimant had an earning capacity of $342.71 per week and that as of July 28, 2006, work was generally available to Claimant within his physical restrictions. Claimant filed an answer denying Employer's allegations and seeking penalties based upon Employer's alleged failure to provide timely discovery. The petitions were consolidated for hearing before WCJ Peter E. Perry.
At the hearing, Employer presented the deposition testimony of John W. Dieckman, a rehabilitation counselor and disability management specialist. He noted that Claimant had a permanent work-related injury; did not attend school after the fifth grade; and had not earned a general educational development diploma. Following testing, Dieckman determined that Claimant's math and spelling skills were at a first-grade level; that his reading ability was limited; and that Claimant had no computer skills.
Dieckman reviewed job listings posted by a state agency, a private placement agency and by other employers in a local newspaper. He found six jobs that he believed to fall within Claimant's educational and physical restrictions: (1) housekeeper/room attendant at a hotel; (2) housekeeper at a different hotel; (3) sandwich and pizza maker at a restaurant; (4) sandwich maker at a different restaurant; (5) car wash attendant; and (6) traffic flagman. Reproduced Record at 307 (R.R. ___). Dieckman testified that none of these jobs had any educational prerequisites.
Employer also submitted the deposition testimony of its independent medical examiner, Dr. Perry, who determined at his 2004 IME that Claimant had a functional impairment and had reached maximum medical improvement. Dr. Perry released Claimant to return to work, with restrictions. He limited Claimant to lifting no more than 25 pounds; prohibited him from crawling; and permitted him to reach with his left arm only occasionally. Dr. Perry did not place any limitations on Claimant as to sitting, standing, walking or driving. Dr. Perry reviewed the six jobs identified by Dieckman and opined that Claimant was medically capable of performing all of them.
Claimant presented the deposition testimony of Richard I. Zamarin, M.D., an orthopedic surgeon. Dr. Zamarin had treated Claimant following his injury and performed surgery on Claimant's left shoulder in 1998. He re-examined Claimant in 2006, and determined that Claimant suffered chronic left shoulder pain due to his work injury. Dr. Zamarin agreed with Dr. Perry that Claimant had reached maximum medical improvement and was able to return to work, with restrictions.
Dr. Zamarin added to the physical restrictions identified by Dr. Perry. Dr. Zamarin did not believe that Claimant could do repetitive pushing or pulling with his left arm and that Claimant should not reach above shoulder level with his left arm. As such, Dr. Zamarin concluded that Claimant was unable to perform any of the jobs identified by Dieckman, with the possible exception of flagman. Dr. Zamarin stated that he would approve Claimant for that position as long as Claimant did not use his left arm more than one-third of the time and did not raise the flag above his left shoulder more than one percent of the time.
Also testifying for Claimant was Mark Lukas, Ed.D, a rehabilitation counselor. Dr. Lukas opined that Claimant was basically unemployable due to his limited education, limited dexterity and advanced age.*fn3 Dr. Lukas was unable to determine if Claimant was able to work as a flagman because that job was listed through a temporary agency and involved assignments to different locations. Without knowing the location of the assignments, Dr. Lukas could not determine whether Claimant would be able to find transportation. Dr. Lukas concluded that the other five jobs identified by Dieckman did not fall within Claimant's educational and functional limitations.
Claimant testified on his own behalf. He claimed that he continues to experience constant pain in his left shoulder, which is not relieved by the over-the-counter medicine he takes. Claimant testified that he can lift his left arm to shoulder level, but doing so causes increased pain. Claimant opined that he is unable to lift more than ten pounds with his left hand. Claimant stated that he applied for ...