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North Pittsburgh Drywall Co., Inc v. Workers' Compensation Appeal Board (Owen

January 9, 2013

NORTH PITTSBURGH DRYWALL CO., INC., PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (OWEN), RESPONDENT



The opinion of the court was delivered by: Renee Cohn Jubelirer, Judge

Submitted: October 26, 2012

BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge

OPINION BY JUDGE COHN JUBELIRER

North Pittsburgh Drywall Co., Inc. (Employer) petitions for review of the Order of the Workers' Compensation Appeal Board (Board), which affirmed the remand decision of a Workers' Compensation Judge (WCJ) denying Employer's Petition to Suspend and/or Modify (Suspension Petition) the workers' compensation benefits of Jason Owen (Claimant), granting Claimant's Petition for Penalties (Penalty Petition), and assessing a twenty percent penalty against Employer. On appeal, Employer argues that the Board and the WCJ erred in concluding that Claimant's loss of earnings was through no fault of his own and that it violated the Workers' Compensation Act*fn1 (Act) by not resuming benefit payments to Claimant after a September 25, 2006 Order (Board 2006 Order) that suspended Claimant's benefits was vacated by this Court on appeal. For the following reasons, we reverse that part of the Board's Order denying the Suspension Petition, affirm that part of the Board's Order affirming the grant of the Penalty Petition and assessment of penalties, and remand for further fact finding related to Claimant's rate of pay for the light-duty position Employer offered and the duration of that position.

Claimant, a drywall installer, sustained a disabling, work-related injury to his right wrist on October 11, 2001, which Employer accepted pursuant to a Notice of Compensation Payable (NCP). Subsequently, Claimant was released to light-duty work and Employer offered Claimant a light-duty position in April 2003. Thereafter, Employer filed the Suspension Petition asserting that, despite Employer's offer of light-duty work, Claimant did not return to work. Claimant denied that he had been offered light-duty work within his medical restrictions. After receiving a more complete description of the light-duty position Employer offered and an indication that the position remained open and available, (Letter from Employer's Counsel to Claimant's Counsel (July 22, 2003), R.R. at 17a-18a), Claimant began working at the light-duty position. (WCJ Decision February 11, 2005 (WCJ 2005 Decision), Findings of Fact (FOF) ¶¶ 1-3, 5, 7.)

This position, which was approved by Claimant's physician,*fn2 consisted of, among other things, inventorying Employer's drywall supplies at its warehouse,*fn3 which was located approximately one and a half hours away from Claimant's home. In his previous position, Claimant had to travel approximately the same distance to install drywall. However, after his work injury had occurred, Claimant's vehicle was repossessed, and Claimant did not have the funds available to retrieve his vehicle from the lienholder.*fn4 Having no personal vehicle to travel to Employer's warehouse, Claimant borrowed his father's vehicle and returned to work. Claimant had no difficulty performing the light-duty position but, after two or three days, Claimant's father needed his vehicle back. Without transportation, Claimant was unable to return to his light-duty position at Employer's warehouse. Employer did not pay Claimant for his light-duty work. Claimant subsequently obtained a position with a car dealer where his cousin worked, but he resigned because the cold weather bothered his right arm. (WCJ 2005 Decision, FOF ¶¶ 7-9.)
Following hearings at which Claimant and Employer's Owner (Owner) testified, the WCJ held that Employer did not satisfy its burden of proof under Kachinski v. Workmen's Compensation Appeal Board (Vepco Construction Company), 516 Pa. 240, 532 A.2d 374 (1987),*fn5 because Employer did not provide available work in Claimant's area of residence. The WCJ concluded he was bound by this Court's decisions in DME Company v. Workmen's Compensation Appeal Board (Peters), 639 A.2d 869 (Pa. Cmwlth. 1994), and Titusville Hospital v. Workmen's Compensation Appeal Board (Ward), 552 A.2d 365 (Pa. Cmwlth. 1989), to hold that, because Claimant did not have transportation to the job site at which the light-duty work was located, that position was not available to Claimant. Accordingly, the WCJ denied the Suspension Petition. (WCJ 2005 Decision, FOF ¶ 12; WCJ 2005 Decision, Conclusions of Law (COL) ¶¶ 4-5.)

Employer appealed, and the Board reversed. (Board 2006 Order.) The Board indicated that DME Company and Titusville Hospital were distinguishable because they involved claimants who did not have transportation to attend interviews for modified-duty positions. The Board concluded, inter alia, that, pursuant to Campbell v. Workers' Compensation Appeal Board (Foamex), 707 A.2d 1188 (Pa. Cmwlth. 1998), in which this Court reversed the reinstatement of the claimant's benefits because the claimant's loss of earnings was not related to his work injury, but to his loss of his vehicle in divorce proceedings, any loss of earnings Claimant experienced was the result of personal reasons and was unrelated to Claimant's work injury. Accordingly, the Board reversed the WCJ's determination and granted the Suspension Petition as of April 16, 2003.

Claimant appealed to this Court, arguing that Employer was aware of his transportation difficulties and did not provide him with "available" work in his area of residence. Owen v. Workers' Compensation Appeal Board (North Pittsburgh Drywall Co., Inc.) (Pa. Cmwlth., No. 1925 C.D. 2006, filed June 25, 2007), slip op. at 6 (Owen I). Noting that the availability of a modified-duty position is based on the totality of the circumstances, which includes the availability of transportation, this Court nevertheless agreed with the Board that Titusville Hospital and DME Company were distinguishable because Claimant actually reported to and performed the duties of the light-duty position for two or three days. Id. at 8. We concluded that, in reporting to and performing the duties of the light-duty position, the position was available to Claimant and the WCJ erred in holding otherwise. Id. at 9-10. However, this Court indicated that, where the claimant "has accepted and performed the light-duty job, and then loses that work . . . 'the focus of the inquiry is on the [claimant's] reason for losing the job, i.e., whether the loss of earnings was through 'no fault of his own."" Id. at 8 (citation omitted). Because the WCJ did not make necessary findings of fact related to why Claimant suffered a loss of earnings, i.e., the reason for losing the light-duty position, we vacated the Board's 2006 Order and remanded the matter for the WCJ to make those findings of fact. Furthermore, we remanded for the WCJ to make findings of fact regarding Claimant's rate of pay for the light-duty position and the duration of that position, which are crucial to determine whether Claimant's benefits should be reduced or suspended in their entirety or merely for a particular period of time. Id. at 11.

On February 19, 2008, Claimant filed the Penalty Petition, alleging that Employer violated the Act by not paying Claimant benefits following this Court's decision in Owen I, which had vacated the Board's 2006 Order suspending Claimant benefits. Employer filed a timely answer denying that it had violated the Act. The Penalty Petition was assigned to the WCJ to resolve with the Suspension Petition.

On remand, the WCJ permitted Claimant and Owner to testify by deposition regarding the light-duty position and Claimant's subsequent work history.*fn6 The WCJ issued a decision on December 4, 2008 (WCJ 2008 Decision) and, relying on Virgo v. Workers' Compensation Appeal Board (County of Lehigh-Cedarbrook), 890 A.2d 13, 18 (Pa. Cmwlth. 2005), concluded that because there had not been a formal suspension of benefits, Claimant's disability was presumed to continue and Employer had the obligation to show that Claimant lost his job through bad faith in order to prevail on the Suspension Petition. The WCJ determined that Claimant's employment ended through no fault of his own because "[C]laimant acted in good faith in attempting to perform the position offered to him [and,] [a]lthough he had no transportation, he borrowed a vehicle for the few days he was able to do so and returned to work." (WCJ 2008 Decision, FOF ¶ 14a.) The WCJ further explained that there was no basis for suspending or modifying Claimant's benefits because Employer never paid Claimant for the two or three days of work Claimant performed; thus, there were no wages on which to base the suspension of Claimant's benefits. (WCJ 2008 Decision, FOF ¶ 14b.) Therefore, the WCJ concluded that Employer did not meet its burden of proof on its Suspension Petition and denied the Suspension Petition. With regard to the Penalty Petition, the WCJ found that Employer did not violate the Act because this Court's remand Order required the WCJ to make additional findings of fact before the decision was complete and that only when there is a complete decision can either side be considered to have violated the Act. Thus, the WCJ denied the Penalty Petition. (WCJ 2008 Decision, FOF ¶¶ 14, 15, 17; WCJ 2008 Decision, COL ¶ 2.)

Both Employer and Claimant appealed the WCJ's 2008 Decision to the Board, and Employer filed a Petition for Supersedeas, which the Board denied by Order dated January 22, 2009. By Opinion and Order dated March 29, 2010 (Board 2010 Order), the Board concluded that the WCJ did not err in denying the Suspension Petition because Claimant still suffered a wage loss despite his good faith efforts to work the light-duty position. The Board reversed the WCJ's denial of the Penalty Petition, indicating that the WCJ erred in concluding that there could be no violation of the Act until the WCJ issued his remand decision. The Board agreed with Claimant that, once this Court vacated the Board's 2006 Order suspending Claimant's benefits, Employer was again obliged to pay Claimant's benefits. Therefore, the Board remanded the Penalty Petition to the WCJ for findings concerning the extent of the violation and the imposition of penalties within the WCJ's discretion.

The WCJ issued a third decision on August 6, 2010 (WCJ 2010 Decision) in which he found that, when this Court vacated the Board's 2006 Order suspending Claimant's benefits, that Order became non-existent and the only operative order was from the WCJ's 2005 Decision, which had denied Employer's request to suspend or modify Claimant's benefits. According to the WCJ, despite Claimant's requests to be paid and Claimant's filing of the Penalty Petition on February 19, 2008, Employer did not pay Claimant any benefits until February 25, 2009, approximately twenty months after this Court's Order. Therefore, the WCJ found that Employer had violated the Act and did not offer a reasonable explanation for its violation; consequently, the WCJ assessed a twenty percent penalty against Employer. (WCJ 2010 Decision, FOF ¶¶ 12, 17.)

Employer appealed to the Board, asserting that the WCJ: erred in denying the Suspension Petition, granting the Penalty Petition, and abused his discretion by assessing a twenty percent penalty against Employer. By Opinion and Order dated June 1, 2012 (Board 2012 Order), the Board affirmed the WCJ's 2010 Decision, concluding that Employer violated Section 428 of the Act, 77 P.S. § 921,*fn7 when it did not resume making payments to Claimant within thirty days of the date on which its obligation to pay arose and that, absent the grant of supersedeas, Employer had the burden of paying benefits throughout the litigation proceedings. (Board 2012 Op. at 3-4.) The Board concluded that Employer's obligation to pay arose when this Court vacated the Board's 2006 Order and remanded the matter to the WCJ to determine whether Employer was entitled to a suspension of benefits. Thus, according to the Board, Employer had an obligation to resume paying Claimant benefits as of the date of this Court's Order and did not; therefore, the WCJ did not err or abuse his discretion in granting the Penalty Petition and assessing a twenty percent penalty against Employer. Employer now petitions this Court for review.*fn8

On appeal, Employer first argues that Claimant is not entitled to the resumption of his benefits because Claimant's loss of earnings was of his own creation and unrelated to his work injury. Employer contends this matter is factually and legally analogous to Beattie v. Workers' Compensation Appeal Board (Liberty Mutual Insurance Co.), 713 A.2d 187 (Pa. Cmwlth. 1998), and Campbell, in which this Court held that a claimant's loss of earnings related to non-work injury factors would not support the reinstatement of benefits. Employer asserts that the WCJ and Board erred in relying on Virgo to hold that it had the obligation to show bad faith on Claimant's part before suspending ...


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