NOW, October 14, 2011, it is ordered that the above-captioned Memorandum Opinion, filed June 21, 2011, shall be designated OPINION and shall be REPORTED.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Department of Public Welfare/ Norristown State Hospital, Petitioner v. Workers‟ Compensation Appeal Board (Roberts), Respondent :
Submitted: December 10, 2010
BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JOHNNY J. BUTLER, Judge
OPINION BY JUDGE COHN JUBELIRER
Before this Court is the Petition for Review of the Department of Public Welfare/Norristown State Hospital (Employer) from the Order of the Workers‟ Compensation Appeal Board (Board) affirming the Order of the Workers‟ Compensation Judge (WCJ), which denied Employer‟s Petition to Modify Compensation Benefits (Modification Petition) and Petition to Suspend Compensation Benefits (Suspension Petition) and granted partial attorney‟s fees to Gregory Roberts (Claimant). Employer argues that the Board erred in holding that:
(1) Claimant did not voluntarily withdraw from the workforce; (2) Employer‟s labor market survey did not provide sufficient basis to modify Claimant‟s benefits; and (3) Employer‟s contest was unreasonable.
Claimant worked for Employer as a houseparent at Employer‟s Youth Development Center for approximately 20 years. In the course of his employment, Claimant previously suffered injuries to his cervical and lumbar spine on June 6, 1997, and March 31, 1998. Claimant suffered a third injury on September 3, 1998, injuring his neck, after which Claimant did not return to work in any capacity.
Employer requested an Independent Medical Examination (IME) of Claimant, which was performed on June 5, 2003 by Richard Levenberg, M.D. On the basis of Dr. Levenberg‟s IME, which found Claimant to be capable of full-time sedentary work, Employer filed a Notice of Ability to Return to Work (Notice of Ability) on June 26, 2003. On June 22, 2004, Employer filed the Modification Petition based on a labor market survey conducted by Michael J. Kibler. On June 24, 2004, Employer filed the Suspension Petition seeking to suspend Claimant‟s benefits as of June 15, 1999,*fn1 on the grounds that Claimant voluntarily left the labor market at that time.
The Modification Petition and Suspension Petition were assigned to the WCJ, who held a hearing on April 12, 2005. At the hearing, Employer introduced the deposition testimony of Mr. Kibler and Dr. Levenberg. Claimant introduced his own testimony, as well as the deposition testimony of his medical expert, Jerry Murphy, M.D.
Employer presented the deposition testimony of Dr. Levenberg and Mr. Kibler. Dr. Levenberg opined that Claimant suffered from myelopathy of his cervical spine and compression of the spinal cord from C4-C6. Dr. Levenberg stated that Claimant should be monitored to determine whether cervical intervention was necessary. Dr. Levenberg opined that Claimant could return to full-time, sedentary work. Mr. Kibler, a vocational counselor certified by the Workers‟ Compensation Bureau, testified that he conducted a vocational interview with Claimant on February 6, 2004. On the basis of this ...