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Phoenixville Hospital v. Workers' Compensation Appeal Board

June 30, 2010

PHOENIXVILLE HOSPITAL, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (SHOAP), RESPONDENT



The opinion of the court was delivered by: Senior Judge Flaherty

Submitted: March 5, 2010

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE JIM FLAHERTY, Senior Judge.

OPINION

Phoenixville Hospital (Employer) petitions for review from an order of the Workers' Compensation Appeal Board (Board) that affirmed the decision of a Workers' Compensation Judge (WCJ) denying its Modification Petition. We reverse the order of the Board and modify the workers' compensation benefits of Annette Shoap (Claimant) based on an earning power of $347.41 per week.

Claimant sustained an injury in the nature of left shoulder tendonitis in the course and scope of her employment. She began receiving temporary total disability benefits pursuant to a Notice of Compensation Payable dated September 25, 2003. Claimant's injury description was later amended to include a brachial plexopathy of the left arm. On August 9, 2007, Employer filed a Modification Petition alleging that work was generally available to Claimant within her physical restrictions. Employer later amended its petition at hearing to request modification as of August 28, 2007.

Employer submitted the testimony of Andrew Sattel, M.D., board certified in orthopedic surgery, who examined Claimant on May 9, 2007. Following his examination and review of available medical records, Dr. Sattel opined Claimant does have residual loss of function in the left shoulder. He explained, however, that Claimant was capable of returning to sedentary work. Dr. Sattel agreed that following his examination of Claimant, he was provided with some job descriptions from a vocational counselor. All of the positions were within Claimant's physical restrictions.

Employer further presented the testimony of Jeffrey Kimmich, a vocational case manager, who met with Claimant and conducted a vocational interview on April 20, 2007. Mr. Kimmich identified five jobs within Claimant's physical restrictions established by Dr. Sattel that were open and available in Claimant's usual employment area. These positions were:

-Jani-King Commercial Cleaning telephone sales representative; $9.00 per hour; 40 hours per week; identified as available on May 21, 2007. -Gutter Guard telephone sales representative; $8.00 to $10.00 per hour; 40 hours per week; identified as available on June 5, 2007. -Doubletree Guest Suites night auditor; $11.00 per hour; identified as available on June 11, 2007. -Holiday Inn Express desk clerk; $9.00 to $10.00 per hour; 40 hours per week; identified as available on July 9, 2007.

-Progressive Business Publications customer service representative; $7.15 per hour; 38.75 hours per week.*fn1

Reproduced Record, pp. 79a - 88a.

Mr. Kimmich prepared a report referencing the first three jobs. The latter two jobs were referenced in a subsequent report. Mr. Kimmich explained Claimant would have an average earning power of approximately $347.41 per week considering these job openings.*fn2

Claimant testified that in July of 2007, she received a labor market survey with three positions listed as potential employers, Jani-King Commercial Cleaning, Gutter Guard, and Doubletree Suites. She explained that she filled out an application for each of these businesses on July 30, 2007. According to Claimant, she never was contacted by any of the prospective employers, nor was she offered any position, following her completion of the applications. Claimant added that she received follow up documentation containing information about potentially available positions at Holiday Inn Express and Progressive Business Publications in August of 2007. Claimant made efforts to apply for both of these positions on August 8, 2007. Claimant had a telephone interview with Progressive Business Publications and was told she could not work at the position. Claimant has not looked for work independently.

Claimant presented the testimony of Philip Pearlstein, D.O., board certified in general practice and family medicine, who began treating her in March of 2004. He did not believe Claimant could perform the five jobs listed in the labor market survey issued by Mr. Kimmich. Claimant also presented the testimony of her own vocational expert, Gary Young, who did not believe the jobs identified by Mr. Kimmich, from a vocational perspective, were appropriate for Claimant.

The WCJ issued a decision on August 29, 2008 wherein he credited Dr. Sattel's testimony to the extent he opined Claimant was capable of sedentary duty.*fn3 He rejected Dr. Pearlstein's testimony to the extent his opinion was inconsistent with that of Dr. Sattel. The WCJ determined that "the testimony of Jeffery Kimmich that he found five open positions that were compatible with the work restrictions placed on Claimant by Dr. Sattel, vocationally suited for Claimant, and located within the geographical area in which Claimant resides is found to be credible and persuasive and is accepted as fact in this case." Op. dated 8/29/08, p. 4. The WCJ rejected Claimant's vocational expert. Nonetheless, the WCJ credited Claimant's testimony to the extent that she applied to all five jobs that Mr. Kimmich "found for her" and did not receive an offer of employment. Id. He found that Claimant "has established that in good-faith, she ...


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