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Bj‟S Wholesale Club v. Workers‟ Compensation Appeal Board (Pearson

May 10, 2012

BJ‟S WHOLESALE CLUB, PETITIONER
v.
WORKERS‟ COMPENSATION APPEAL BOARD (PEARSON), RESPONDENT



The opinion of the court was delivered by: James Gardner Colins, Senior Judge

Submitted: March 9, 2012

BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY SENIOR JUDGE COLINS

BJ‟s Wholesale Club (Employer) petitions for review of an order of the Workers‟ Compensation Appeal Board (Board) that affirmed the decision and order of the Workers‟ Compensation Judge (WCJ) granting the Claim Petition of Denise Pearson (Claimant) and awarding her total disability benefits. In his decision and order, the WCJ found that Claimant was unable to return to her pre-injury position and ordered Employer to pay total disability benefits, even though Claimant had been provided with light-duty work at the same pay and had been terminated from that job because she reported to work after the injury with a blood alcohol level of .108. Because, under the evidence that the WCJ found credible, Claimant‟s loss of earnings was caused by her termination for misconduct and not by her injury, we reverse.

The facts found by the WCJ and the evidence found credible by the WCJ establish the following. Claimant began working for Employer on June 1, 2008. (WCJ Decision, Finding of Fact (F.F.) ¶2a, Reproduced Record (R.R.) at 9a; August 18, 2008 Hearing Transcript (H.T.) at 6, R.R. at 294a.) She was employed on a part-time basis, approximately five hours, three to four days a week, checking receipts of customers as they left Employer‟s store. (F.F. ¶2a, R.R. at 9a; August 18, 2008 H.T. at 6-9, 34-35, R.R. at 294a-297a, 322a-323a.)

On June 20, 2008, Claimant sustained a work-related injury when a customer ran over her left foot with a shopping cart. (F.F. ¶2b, R.R. at 9a; August 18, 2008 H.T. at 9-10, R.R. at 297a-298a.) Claimant reported this incident to her supervisor and was sent home to ice the foot. (F.F. ¶2b, R.R. at 9a; August 18, 2008 H.T. at 10-12, R.R. at 298a-300a.) When Claimant continued to report pain in the foot, Employer sent her for medical treatment. (F.F. ¶2b, R.R. at 9a; August 18, 2008 H.T. at 12, R.R. at 300a.) The medical center diagnosed the injury as a foot and toe contusion and authorized Claimant to return to work with the restriction that she should be sitting 95% of the time. (F.F. ¶2b, R.R. at 9a; August 18, 2008 H.T. at 12-13, R.R. at 300a-301a; Exhibit D-7, R.R. 819a-820a.) In response to that restriction, Employer provided Claimant sedentary work, paperwork and shelving books from a motorized cart, at the same rate of pay. (F.F. ¶2b, R.R. at 9a; August 18, 2008 H.T. at 8, 13-15, 35, R.R. at 296a, 301a-303a, 323a; Exhibit D-6, R.R. at 818a.)

Employer‟s substance abuse policy provided that an employee "who is under the influence of alcohol while on the job will be subject to disciplinary action to include imposed medical leaves, medical treatment, written reprimand and/or termination of employment." (F.F. ¶¶5f, R.R. at 15a; August 18, 2008 H.T. at 51, R.R. at 339a; March 25, 2009 H.T. at 17-19, R.R. at 367a-369a; Exhibit D-8, R.R. at 822a.) Claimant was aware of this policy. (August 18, 2008 H.T. at 51, 56, R.R. at 339a, 344a; March 25, 2009 H.T. at 19, R.R. at 369a; Exhibit D-2, R.R. at 814a.)

On the night of June 27, 2008, Claimant drank alcohol until around 2:00 a.m. or 4:00 a.m. (August 18, 2008 H.T. at 46-47, 52, R.R. at 334a-335a, 340a; Exhibit D-11 Pieretti Trial Dep. at 14, R.R. at 654a; Exhibit 2 to Exhibit D-11 Pieretti Trial Dep., R.R. at 700a.) She described the amount she consumed as "quite a bit" and testified that "I was feeling no pain[,] put it that way." (August 18, 2008 H.T. at 46-47, R.R. at 334a-335a.) After Claimant went to work at her scheduled late-afternoon time on June 28, 2008, the store manager asked her if she had been drinking and requested that she submit to an alcohol test. (F.F. ¶¶2c, 2d, R.R. at 9a-10a; August 18, 2008 H.T. at 17-22, R.R. at 305a-310a.) A blood alcohol test, performed at a nearby hospital with Claimant‟s consent, showed that Claimant had a serum alcohol level of .127, which is a blood alcohol level of .108. (F.F. ¶¶8b, 9a, 10, 11b, 14-16, R.R. at 16a-19a; August 18, 2008 H.T. at 21-22, R.R. at 309a-310a; Exhibit D-11 Pieretti Trial Dep. at 11-12, 24-26, R.R. at 651a-653a, 664a-666a; Exhibit D-9, R.R. at 825a; Exhibit 2 to Exhibit D-11 Pieretti Trial Dep., R.R. at 702a.) After receiving the blood test results, Employer, on July 3, 2008, terminated Claimant for being under the influence of alcohol at work. (F.F. ¶¶2d, 5d, R.R. at 10a, 14a; August 18, 2008 H.T. at 24, R.R. at 312a.)

On July 18, 2008, Claimant filed a Claim Petition seeking total disability benefits from the date of her termination onward. (Claim Petition, R.R. at 2a.) The WCJ held two evidentiary hearings and also received testimony of seven medical and hospital witnesses by trial deposition. The WCJ found, based upon testimony of Claimant‟s chiropractor, that Claimant is unable to perform the duties of her pre-injury job, which involved standing, and that this disability was caused by the June 20, 2008 injury rather than by a nerve condition in Claimant‟s feet that is unrelated to the workplace injury. (F.F. ¶¶2f, 4, 17, R.R. at 10a-14a, 19a.) The WCJ, however, found that Claimant is able to perform the light duty work Employer had provided her at the same rate of pay after her injury until she was terminated. (F.F. ¶¶2f, 4j, 7a, 17-18, R.R. at 10a, 14a, 16a, 19a.)

With respect to the issue of Claimant‟s termination, the WCJ found the testimony of Claimant credible and found that she drank quite a bit of alcohol on the night of June 27, 2008, but did not show outward signs of intoxication at work on June 28, 2008, such as smelling of alcohol, unsteadiness or slurred speech. (F.F. ¶¶2d, 2g, 12-15, R.R. at 10a, 18a-19a.) The WCJ also found credible the blood test result which showed that Claimant had a blood alcohol level of .108 and found credible the testimony of Dr. Pieretti, the physician who interpreted Claimant‟s blood alcohol test, and the testimony of the hospital witnesses who authenticated the test result and testified to the accuracy of the test. (F.F. ¶¶8b, 14-16, R.R. at 16a, 18a-19a.) The WCJ found that "based upon the level of alcohol in Claimant‟s blood she would technically be under the influence of alcohol" (F.F. ¶14, R.R. at 18a), but nonetheless ordered Employer to pay her total disability benefits from the date of her termination onward.

Employer appealed and the Board affirmed the WCJ‟s order. This appeal followed.*fn1 The sole issue argued by Employer in this Court is whether the award of disability benefits was error where Claimant‟s loss of earnings was caused by her termination for reporting to work under the influence of alcohol.

Under the Workers‟ Compensation Act (the Act),*fn2 a claimant seeking disability benefits must prove that she has suffered a disability and that the disability was caused by a work-related injury. Lewis v. Workmen's Compensation Appeal Board (Pittsburgh Board of Education), 508 Pa. 360, 365, 498 A.2d 800, 802 (1985); Coyne v. Workers' Compensation Appeal Board (Villanova University and PMA Group), 942 A.2d 939, 945 (Pa. Cmwlth. 2008); Somerset Welding & Steel v. Workmen's Compensation Appeal Board (Lee), 650 A.2d 114, 117 (Pa. Cmwlth. 1994). To prove a disability, the claimant must show not merely physical impairment, but loss of earning power. Coyne, 942 A.2d at 945 n.7; Bissland v. Workmen's Compensation Appeal Board (Boyertown Auto Body Works), 638 A.2d 493, 495 (Pa. Cmwlth. 1994); Somerset Welding & Steel, 650 A.2d at 119 n.9. "[F]or the purposes of receiving workmen‟s compensation, "disability‟ means loss of earning power, and thus although a claimant may suffer a work-related physical disability, it is only if that physical disability occasions a loss of earnings that a worker will be "disabled‟ under the meaning of the Act and will be entitled to receive compensation." Bissland, 638 A.2d at 495.

Where the claimant‟s loss of earnings is a result of a termination for misconduct unrelated to the injury, the requirement of causal connection to the work-related injury cannot be satisfied and claimant is not entitled to disability benefits for that loss. Vista International Hotel v. Workmen's Compensation Appeal Board (Daniels), 560 Pa. 12, 25-29, 742 A.2d 649, 656-58 (1999); Hertz-Penske Truck Leasing Co. v. Workmen's Compensation Appeal Board (Bowers), 546 Pa. 257, 261-62, 684 A.2d 547, 549-50 (1996); Harvey v. Workers' Compensation Appeal Board (Monongahela Valley Hospital), 983 A.2d 1254, 1261-62 (Pa. Cmwlth. 2009); Coyne, 942 A.2d at 945-46; Edwards v. Workers' Compensation Appeal Board (Sear's Logistic Services), 770 A.2d 805, 808 (Pa. Cmwlth. 2001). For a termination to bar disability benefits, the employer must show that the termination was for conduct that amounts to bad faith or a lack of good faith on the part of the claimant. Vista International Hotel, 560 Pa. at 28-29, 742 A.2d at 657-58; Coyne, 942 A.2d at 945-46; Virgo v. Workers' Compensation Appeal Board (County of Lehigh-Cedarbrook), 890 A.2d 13, 18-19 (Pa. Cmwlth. 2005).

If the employer has provided work within the claimant‟s physical limitations at no loss of pay and has shown that the claimant was terminated for conduct evidencing bad faith or a lack of good faith, disability benefits must be denied, regardless of whether the claimant has a physical disability caused by the work-related injury. Sauer v. Workers' Compensation Appeal Board (Verizon Pennsylvania, Inc.), 26 A.3d 531, 533, 535-38 (Pa. Cmwlth. 2011); Coyne, 942 A.2d at 945-46; Virgo, 890 A.2d 15-21; Edwards, 770 A.2d 807-08. Under such circumstances, the claimant is not entitled to workers‟ compensation disability benefits because "his loss of earnings subsequent to the discharge was caused by his own action, not by the work injury." Edwards, 770 A.2d 808; see also Sauer, 26 A.3d at 538 (benefits were properly denied "because the loss of earnings . was due to Claimant‟s discharge for fault"). Violation of an ...


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