The opinion of the court was delivered by: Judge McGINLEY
Submitted: August 13, 2010
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE JIM FLAHERTY, Senior Judge.
Barbara Muir (Claimant) petitions for review from the order of the Workers' Compensation Appeal Board (Board) which reversed in part and affirmed in part the decision of the Workers' Compensation Judge (WCJ). The Board reversed in part and modified the WCJ's decision and ordered that Claimant's benefits be reduced to $452.37 for the period from August 28, 2007, to November 13, 2007. The WCJ reduced Claimant's benefits to $0 for that same period. The Board affirmed the WCJ's denial of Claimant's penalty petition, the WCJ's determination that Visteon Systems (Employer) engaged in a reasonable contest, and the WCJ's grant of Employer's review petition to change Claimant's status from temporary total disability to partial disability as of the date of the Impairment Rating Evaluation (IRE) on August 15, 2007.
Employer cross-petitioned and seeks review of the Board's modification of the WCJ's decision.
I. Facts and Procedural History
Claimant suffered a work-related injury in the course and scope of her employment with Employer on October 9, 2000. Pursuant to a notice of compensation payable, Claimant received compensation benefits of $611.00 per week based on an average weekly wage of $1,045.58 for a neck "sprain/strain." Amended Notice of Compensation Payable, December 7, 2000, at 1.
On August 8, 2005, Claimant completed a LIBC-756 Form which Employer had sent to her. On the form Claimant stated that she received Social Security disability benefits. On June 26, 2007, Claimant completed another LIBC-756 Form at Employer's request. On this form Claimant noted that she started to receive old age Social Security benefits on October 28, 2006, in the gross amount of $1,376.90 per month.
On July 31, 2007, Employer filed a Notice of Workers' Compensation Offset which indicated that it was entitled to an offset credit for half of the old age Social Security benefits received and that the offset amount of $6,884.50 would be deducted from her weekly workers' compensation benefits beginning on August 28, 2007, and continuing until November 14, 2007. During that time Claimant would receive and Employer would pay $0 in workers' compensation benefits. After that, Claimant would receive reduced benefits of $452.37 per week.
On or about August 31, 2007, Employer petitioned to review and alleged that Claimant's status should be changed from temporary total disability to partial disability based upon the Impairment Rating Determination (IRD) of Lora Regan, M.D. (Dr. Regan) that Claimant had a whole impairment of five percent (5%).
On or about November 20, 2007, Claimant filed a penalty petition and alleged that Employer violated the Workers' Compensation Act (Act)*fn1 because "[t]he Defendant [Employer] has taken an illegal retroactive suspension of benefits in violation of the law, as set forth in... Maxim Crane Works [v. Workers' Compensation Appeal Board (Solano), 931 A.2d 816 (Pa. Cmwlth. 2007)]. As a result, the Claimant has been placed under severe financial difficulty. A penalty of 50% is requested along with unreasonable contest attorneys [sic] fees." Petition for Penalties, November 20, 2007, at 2.
Employer presented the IRD, which indicated that Claimant had a whole person impairment rating of five percent (5%). Employer presented the deposition testimony of Lora S. Regan, M.D. (Dr. Regan), board-certified in internal medicine and occupational medicine. Dr. Regan was certified by the Commonwealth of Pennsylvania to perform the IRE, which Dr. Regan did on August15, 2007. As part of the evaluation, Dr. Regan took a history and reviewed medical records. Dr. Regan testified within a reasonable degree of medical certainty that she diagnosed Claimant with "cervical disc disease, and her impairment rating for this condition was a 5 percent whole person impairment." Deposition of Lora S. Regan, M.D., January 30, 2008, (Dr. Regan Deposition) at 25; Reproduced Record (R.R.) at 71a. Dr. Regan also diagnosed Claimant with left chronic lateral epicondylitis or tennis elbow. Dr. Regan Deposition at 28; R.R. at 74a. Dr. Regan determined there was no additional numeric impairment for the elbow condition. Dr. Regan Deposition at 29; R.R. at 75a.
The WCJ granted the review petition and changed Claimant's status from temporary total disability to partial disability as of the date of the IRE, August 15, 2007, and denied Claimant's penalty petition. The WCJ made the following relevant findings of fact:
10. The testimony of Dr. Regan is found to be credible and convincing. Dr. Regan clearly and persuasively explained her rationale for concluding Claimant has a five percent (5%) whole person impairment. Dr. Regan referred to the specific tables upon which she relied and provided a detailed explanation regarding how she concluded Claimant had reached maximum medical improvement prior to the date of her examination. Claimant did not submit any contrary evidence.....
12. This Judge finds that Claimant has failed to establish that Defendant [Employer] violated the terms and/or provisions of the Act. Based upon Exhibit D-2, Claimant was aware in at least August 2005 of the reporting requirements of old age social security benefits, but Claimant did not report the receipt of those benefits until she filled out the Offset form on June 26, 2007. This Judge finds that the facts in this case are distinguishable from those in Maxim Crane Works. In this case, the evidence clearly indicates that Claimant was made aware of her reporting obligations in at least August 2005, but she did not report her receipt of said benefits until June 2007. ...