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Verizon Pennsylvania, Inc. v. Workers' Compensation Appeal Board

July 19, 2010


The opinion of the court was delivered by: Judge Leavitt

Submitted: March 26, 2010



Verizon Pennsylvania, Inc. (Employer) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) denying its petition to modify or suspend the workers' compensation benefits of Agnes Guyders (Claimant). In doing so, the Board affirmed the decision of the Workers' Compensation Judge (WCJ) that Employer's 73 job referrals over the course of three years were, for the most part, invalid because they were made more than six months after the medical examination clearing her for work had been done. Concluding that there is no substantial evidence to support the WCJ's finding that this medical examination had no value after six months, we will reverse and remand.

Claimant began working for Employer in 1962 as a telephone customer service representative, a job that required, inter alia, data entry. In 1994, Claimant began collecting disability compensation at the rate of $493 per week as a result of her work-related carpal tunnel syndrome. In 2006, Employer filed a petition to suspend or modify benefits, alleging that work was available to Claimant and that Claimant had failed to make a good faith effort to pursue the jobs to which she had been referred. Claimant denied these allegations, and a hearing was held before the WCJ.

At the hearing, Employer presented the 2007 deposition testimony of Lawrence E. Weiss, M.D., who testified that he conducted an independent medical examination (IME) of Claimant on October 27, 2003. Dr. Weiss concluded that Claimant had not fully recovered from her work injury; however, she had reached maximum medical improvement and no longer required medical treatment. Dr. Weiss opined that Claimant was capable of returning to work full-time, so long as she refrained from repetitive motions and lifted no more than ten pounds. Dr. Weiss then testified about the 73 jobs to which Claimant had been referred from 2003 to 2006 by JOA Case Management Solutions (JOA), Employer's consultant. Dr. Weiss reviewed the job descriptions of all 73 positions, and he found each one to fall within Claimant's physical capabilities.

On cross-examination, Dr. Weiss acknowledged that his 2003 IME report had restricted Claimant to occasional lifting and carrying of objects under ten pounds. On a November 18, 2003, physical capacity form, however, he had restricted her to lifting no more than five pounds. Dr. Weiss acknowledged that he had not seen Claimant since 2003 or reviewed her post-2003 medical records.

Robert Murphy, an employment consultant with JOA, testified about his vocational assessment of Claimant in October 2003. Because Claimant refused to meet with him, Murphy used Dr. Weiss' 2003 IME report to assess Claimant's physical limitations. Murphy then located jobs within Claimant's abilities and scheduled appointments for Claimant to complete an employment application. He notified Claimant in writing of each appointment, approximately one to two weeks in advance. Murphy then sent each job description to Dr. Weiss for his review and approval.

From November 2003 to February 2006, Murphy scheduled 73 appointments for Claimant.*fn1 For each, Murphy sent Claimant a letter providing the time and place of the appointment. The letter instructed Claimant to dress appropriately in case the prospective employer wanted to interview her. Claimant was further instructed to call JOA if she could not attend the appointment. Murphy mailed each of the 73 prospective employers a form, seeking verification that Claimant had completed an application and questioning whether she was being considered for the job. Claimant did not attend 32 appointments.*fn2 Murphy testified that Claimant did not dress appropriately when she kept the appointments. However, Murphy acknowledged that he had observed her at only one of the scheduled appointments. This was on March 30, 2004, for a hotel desk clerk position, where Claimant appeared wearing jeans and sneakers.

Jim Kelly, an observer hired by JOA on a case-by-case basis, also testified. He explained that Claimant routinely appeared at her scheduled appointments wearing sneakers, a sweatshirt and jeans or leggings; always wore braces on her wrists; often wore braces on her legs; and often had unkempt hair.

Kelly testified that Claimant failed to appear at approximately 18 to 20 of the scheduled appointments he observed.

Finally, Employer presented testimony from two of the prospective employers to whom Claimant had been referred by Murphy. Sharon Starkes testified that she was the manager of Joan Fitzgerald Real Estate, Ltd., which had a secretary receptionist opening from August 13, 2004, until October 8, 2004. Lorraine Hamel, D.M.D., confirmed that she had a receptionist position available in her dental office from August 26, 2005, through September 7, 2005.

Claimant presented the testimony of Calvin F. Anderson, a self-employed rehabilitation specialist and vocational expert. Anderson testified that of the 73 jobs Murphy selected for Claimant, only one fell within her physical capabilities and her area of expertise: a customer service representative for Blue Ridge Communications. Anderson opined that the remaining jobs were not suitable because they required repetitive hand actions or knowledge beyond Claimant's abilities. On cross-examination, however, Anderson admitted that the clerical positions at Joan Fitzgerald Real Estate Ltd. and Lorraine Hamel, D.M.D., fell within Claimant's physical and educational abilities.

Anderson opined that a medical examination becomes outdated within six months to a year because a claimant's physical condition may change, noting that Dr. Weiss had not examined Claimant since October 2003. Further, Anderson pointed out the discrepancy in the lifting restriction between ...

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