The opinion of the court was delivered by: Senior Judge Flaherty
Submitted: October 23, 2009
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE JIM FLAHERTY, Senior Judge.
Struthers Wells (Employer) petitions for review from an order of the Workers' Compensation Appeal Board (Board) that reversed the decision of a Workers' Compensation Judge (WCJ) that granted its Modification/Suspension Petition. We affirm.
Charles Skinner (Claimant) sustained an injury to his back in the course and scope of his employment in 1989. In 2004, Employer filed a Modification/Suspension Petition alleging that Claimant was released to sedentary work in regard to his work-related injury. It asserted that while Claimant remains totally and permanently disabled from performing any type of employment as a result of nonwork-related medical conditions, it is entitled to a suspension of benefits consistent with Schneider, Inc. v. Workers' Compensation Appeal Board (Bey), 560 Pa. 608, 747 A.2d 845 (2000)(holding that an employer was entitled to a suspension of benefits absent a showing of job availability when the claimant sustained a nonwork-related head trauma that resulted in brain damage and paralysis precluding him from ever returning to the workforce). Employer filed a separate Modification Petition alleging, in the alternative, that Claimant was referred to an open position that fell within his physical capabilities and that he failed to follow up on that position in good faith.
Employer presented the testimony of Fiaz A. Choudhri, M.D., board certified in neurosurgery, who explained Claimant sustained a work-related back injury in 1989 when he was struck by a machine. Claimant's current back discomfort and cramps in the legs could be related to the work injury, but are influenced by a nonwork-related diabetic neuropathy. Diabetes caused circulation problems that necessitated Claimant having an aortofemoral bypass. Claimant also had nonwork-related problems with his heart. Per Dr. Choudhri, he had atrial fibrillation, chronic obstructive pulmonary disease, and high blood pressure. He had coronary artery disease with bypass grafting, hypertension, and congestive heart failure. Claimant had ulnar nerve compression on both sides. At the time of his final examination of Claimant in July of 2005, Claimant was using an oxygen tank. Dr. Choudhri stated that even if Claimant had no work-related back problems, he would be totally disabled. Dr. Choudhri testified that considering Claimant's work-related back condition only, Claimant was capable of sedentary work. He opined Claimant's prognosis is poor. Dr. Choudhri did recommend different medications to improve Claimant's function.
Dr. Choudhri agreed that having a coronary artery bypass does not mandate that a person is totally disabled the rest of his or her life. Dr. Choudhri acknowledged people with diabetic neuropathy can sometimes function in a work setting. None of Claimant's conditions, viewed in isolation, would preclude him from working.
Employer also presented the testimony of Drexel Brown, vocational case manager, who completed a vocational evaluation of Claimant utilizing available medical records and his background information. Mr. Brown reviewed the opinions of Dr. Choudhri and noted he precluded Claimant from performing any type of gainful employment. Mr. Brown recognized, however, that Dr. Choudhri, considering only Claimant's work-related back condition, cleared Claimant for sedentary work. Mr. Brown identified a sales associate position for the Salvation Army Thrift Store and a position as a desk clerk/night auditor at the Holiday Inn that fell within Claimant's work-related restrictions. Claimant, per Mr. Brown, made no contact with the Salvation Army. Mr. Brown said Claimant's counsel at the time informed him Claimant would not pursue the Holiday Inn position as he was hospitalized at the time he was to meet with this employer.
Claimant testified that he has been advised his back is beyond repair. He takes numerous medications. Some medications are for his back, while others are for his diabetes and heart issues. Claimant stated he had a triple bypass in 2001. He explained he has not been cleared to work by any of his doctors. Claimant agreed that he does some driving and cooking.
The WCJ found Claimant incredible. He credited Dr. Choudhri's testimony and the testimony of Mr. Brown. The WCJ concluded that Claimant's non-work-related medical conditions in and of themselves rendered Claimant totally disabled from his employment. The WCJ concluded that Employer established it is entitled to a suspension of benefits consistent with Schneider. In the alternative, the WCJ found that considering the work-related back injury only, Claimant failed to make a good faith effort in following through on the Salvation Army position he was referred to by Employer. The WCJ explained Claimant did not sufficiently establish an inability to pursue this position considering only his work-related injuries. Claimant appealed to the Board arguing that Schneider is not applicable to the instant matter and that Employer was nonetheless precluded from obtaining a suspension of benefits as a result of its failure to provide him with a Notice of Ability to Return to Work consistent with Section 306(b)(3) of the Pennsylvania Workers' Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §512(3).*fn1
The Board found that Employer could not obtain a suspension of benefits without first furnishing Claimant with a Notice of Ability to Return to Work. As there was no evidence of record that one was supplied, the Board was constrained to reverse the WCJ's decision. It added that even if Employer's evidence was sufficient to obtain a suspension under Schneider in all other respects, its failure to supply this document was fatal to its Petitions. Employer appeals.*fn2
Employer argues on appeal that the Board erred in finding it was necessary to provide Claimant with a Notice of Ability to Return to Work in this instance. It asserts that the WCJ suspended Claimant's benefits based on the Schneider decision. Employer reiterates that the holding of Schneider is that where a claimant cannot return to gainful employment as a result of a nonwork-related condition, an employer need not make a showing of job availability in order to suspend benefits. Consequently, it contends it need not supply the document required under Section 306(b)(3) of the Act.
Compliance with the provisions of Section 306(b)(3) of the Act is a threshold burden that must be met in order to obtain a modification or suspension of a claimant's workers' compensation benefits when a change in status is sought upon the receipt of medical evidence. Allegis Group (Onsite) v. Workers' Compensation Appeal Board (Henry), 882 A.2d 1 (Pa. Cmwlth. 2005); Burrell v. Workers' Compensation Appeal Board (Phila. Gas Works), 849 A.2d 1282 (Pa. Cmwlth. 2004). The clear purpose of Section 306(b)(3) is "to require the employer to share new medical information about a claimant's physical capacity to work and its possible impact on existing benefits." Burrell, 849 A.2d at 1287.*fn3
When the claimant is totally disabled based on a nonwork-related condition but he also requires restrictions due to his work injury, case law has suggested the employer must make a showing of job availability consistent with Kachinski v. Workmen's Compensation Appeal Board (Vepco Constr. Co.), 516 Pa. 240, 532 A.2d 374 (1987), in order to modify or suspend benefits.*fn4 Reading Anthracite Co. v. Workers' Compensation Appeal Board (Konopka), 728 A.2d 408 (Pa. Cmwlth. 1999). See also Sheehan v. Workmen's Compensation Appeal Board (Supermarkets Gen.), 600 A.2d 633 (Pa. Cmwlth. 1991)(holding the fact that claimant incurred a nonwork-related ...