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City of Pittsburgh and Upmc Benefit Management Services, Inc v. Workers' Compensation Appeal Board (Marinack

February 7, 2012

CITY OF PITTSBURGH AND UPMC BENEFIT MANAGEMENT SERVICES, INC., PETITIONERS
v.
WORKERS' COMPENSATION APPEAL BOARD (MARINACK), RESPONDENT



The opinion of the court was delivered by: Mary Hannah Leavitt, Judge

Submitted: January 6, 2012

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY JUDGE LEAVITT

The City of Pittsburgh (Employer) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) denying its petition to suspend the disability compensation of Kenneth Marinack (Claimant). In doing so, the Board reversed the decision of the Workers' Compensation Judge (WCJ) that Claimant had voluntarily withdrawn from the workforce, as evidenced by his application for a disability pension and lack of effort to find a job. The Board held that Claimant's application for a disability pension was irrelevant and that Employer, not Claimant, had the burden of proving that Claimant intended to withdraw from the workforce. We affirm.

On May 21, 2004, Claimant sustained a work injury while doing his job as a firefighter. Employer accepted liability and issued a Notice of Compensation Payable describing the work injury as a left shoulder rotator cuff tear; aggravation of lumbar disc disease; and a psychological adjustment disorder with anxiety and depressed mood. Employer paid Claimant total disability benefits.

On September 16, 2008, Claimant's treating physician, Dennis J. Phillips, M.D., informed Employer that Claimant could work full-time at light-duty work. Two days later, Employer sent Claimant an LIBC Form 757, Notice of Ability to Return to Work.*fn1 On September 24, 2008, Employer filed a petition seeking to suspend disability compensation as of September 16, 2008, not because Claimant was capable of working but because Claimant had removed himself from the workforce. Claimant filed an answer denying the allegations.*fn2 The matter was assigned to a WCJ who held a series of evidentiary hearings.

Employer submitted the medical deposition of Dr. Phillips, a board certified orthopedic surgeon who has been treating Claimant for the work injury to his shoulder since October 2004. Dr. Phillips opined that Claimant's work injury rendered him incapable of doing the heavy work of a firefighter. In April 2005, Dr. Phillips sent Employer a report stating that Claimant could do sedentary work. On September 16, 2008, Dr. Phillips released Claimant to perform light-duty work, lifting up to twenty pounds.

However, Dr. Phillips' deposition also showed that Claimant did not continue to be able to work after September 16, 2008. Because of Claimant's increasing shoulder pain, Dr. Phillips limited Claimant to sedentary work as of October 28, 2008. On March 25, 2009, Dr. Phillips did more surgery to Claimant's shoulder, which left him totally disabled. As of May 1, 2009, when he was deposed, Dr. Phillips had not yet released Claimant to do any type of work.

Dr. Phillips could not recall that at any time during his years of treating Claimant that Claimant had asked for assistance in working with the Office of Vocational Rehabilitation (OVR) to return to work.

Employer also presented the deposition testimony of Barbara E. Swan, M.D., who is board certified in physical medicine and rehabilitation. Dr. Swan has treated Claimant's work-related back injury since July 28, 2005. In September 2005, Dr. Swan informed Claimant that he would not be able to return to work as a firefighter. On October 14, 2008, following a physical examination, Dr. Swan released Claimant to do medium-duty work, at least with respect to his back. Dr. Swan testified that Claimant has never asked her to help return him to the workplace or to identify what job restrictions should be placed on him.

Claimant testified in opposition to Employer's petition, both by deposition and by live testimony. He presented no medical evidence or testimony.

Claimant testified that he has experienced both back and shoulder pain since his 2004 work injury and has never returned to work. Claimant testified that he applied for a disability pension after being injured, but it was denied because Employer fired him in April 2005. Claimant explained that an elderly couple for whom he was doing construction work complained to Employer about the quality of his work. Employer investigated and referred the matter to the City's fire trial board, which found that Claimant had acted unethically. On that basis, Employer discharged Claimant.

Employer's documentary evidence explained that Claimant was discharged because he did not inform Employer that he was earning wages in construction while he was collecting disability compensation and benefits under what is commonly known as the Heart and Lung Act.*fn3 Claimant's firing rendered him ineligible for a pension, disability or retirement. However, Claimant has continued to receive workers' compensation disability and Heart and Lung Act benefits since his discharge.

Claimant testified that he considers himself to be disabled, but he denied that he has withdrawn from the workforce. To the contrary, he testified that he began working with a vocational counselor from OVR sometime in 2006 and met with him three times, most recently in September 2007. Because his physical limitations were ...


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