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Southeastern Pennsylvania Transportation Authority (SEPTA) v. Workers' Compensation Appeal Board (Cunningham)

Commonwealth Court of Pennsylvania

July 12, 2013

Southeastern Pennsylvania Transportation Authority (SEPTA), Petitioner
v.
Workers' Compensation Appeal Board (Cunningham), Respondent

Argued: February 13, 2013

BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge

OPINION

PATRICIA A. McCULLOUGH, Judge

Southeastern Pennsylvania Transportation Authority (Employer) petitions for review of the September 28, 2011 order of the Workers' Compensation Appeal Board (Board), which reversed the order of a workers' compensation judge (WCJ) suspending benefits payable to James Cunningham (Claimant).[1] For the reasons that follow, we reverse.

The facts of this case are not in dispute. On June 11, 1996, Claimant suffered an injury to his right knee in the course and scope of his employment as a first class body mechanic; at the time, Claimant was working under permanent, light- duty restrictions and earning a weekly wage of $825.91.[2] (WCJ's Finding of Fact No. 1.) Employer accepted Claimant's injury and disability through a notice of temporary compensation payable but subsequently issued a notice of workers' compensation denial on July 17, 1996. Claimant filed a claim petition in August 1996. In June 1997, Claimant filed a penalty petition alleging unreasonable contest.

Claimant returned to his pre-injury light-duty work shortly after the June 11, 1996 accident. (Id.) However, on July 7, 1996, Claimant was involved in a non-work-related car accident; he sustained injuries to his left knee, low back, and left hand and went out of work again on July 12, 1996. (Id.) Claimant underwent surgery for the work-related right knee injury in January 1997, and he returned to his pre-injury light-duty position in April 1997. (Id.)

On December 24, 1998, in a second non-work-related incident, Claimant was struck by a vehicle and suffered injuries to his left knee, low back, left hand, and left shoulder. (Id.) At that point, Claimant stopped working again, and he began receiving sickness and accident benefits. (R.R. at 129a.) Claimant unsuccessfully attempted to return to work during the week of December 26, 1998, (R.R. at 129a, 143a), but he has not returned to work in any capacity since then. (WCJ's Finding of Fact No. 2.)

On June 6, 2000, following hearings on Claimant's claim petition, the WCJ issued an order granting Claimant's penalty and claim petitions. The WCJ awarded total disability benefits for those periods in which Claimant was disabled from the June 11, 1996 work injury and not otherwise compensated up to the date of his decision and indefinitely thereafter. (R.R. at 135a-36a.)

On August 28, 2006, Employer filed a petition to modify and/or suspend Claimant's benefits, alleging that, as of April 12, 2006, Claimant failed to respond in good faith to jobs referred to him that were within his physical and vocational capabilities. (R.R. at 4a-5a.) During the course of litigation, on January 30, 2007, Employer filed a second modification/suspension petition, alleging that Claimant was able to return to work as of November 9, 2005, but for his December 1998 non-work-related injuries. (R.R. at 10a-11a.)

During hearings before the WCJ, Employer presented the testimony of Joseph Bernstein, M.D., a board-certified orthopedic surgeon. Dr. Bernstein opined that Claimant's right knee had recovered sufficiently that Claimant was capable of performing sedentary work as of November 9, 2005, and that the only cause of Claimant's continuing disability was the non-work-related December 1998 accident. (WCJ's Finding of Fact No. 5.)

Employer also presented the testimony of Michael Smychynsky, a vocational consultant, forensic economist, and certified rehabilitation counselor, who conducted a vocational evaluation of Claimant in February 2006. Smychynsky testified that he located four open and available positions that would have provided Claimant with wages of up to $400 per week. According to Smychynsky, Claimant went to each of the interviews but only put his name and telephone number on the applications, and, at the conclusion of two of the interviews, began "swearing" and "threatening" people. (WCJ's Finding of Fact No. 7.)

Claimant presented the testimony of Ronald Greene, M.D., his treating physician since 2002. Dr. Greene testified that Claimant was not capable of returning to work due to the condition of his right knee. On cross-examination, he acknowledged that he had not reviewed Claimant's treatment records from four previous surgical procedures on Claimant's right knee, nor any records in connection with Claimant's December 1998 accident. (WCJ's Finding of Fact No. 11.) Claimant also presented the testimony of Donald Jennings, a licensed psychologist and certified vocational expert, who testified that Claimant's limited reading, writing, and spelling abilities accounted for his minimal responses on the employment applications. However, on cross-examination, Dr. Jennings acknowledged that the only reason Claimant stopped working for Employer was the December 1998 non-work-related accident.

Finding Dr. Bernstein's testimony to be more credible than the testimony of Dr. Greene, the WCJ concluded that Employer met its burden of proving that Claimant's work-related injury had resolved to the point that he could perform sedentary work but for his non-work-related injuries, which "rendered him incapable of all possible work activity." (WCJ's Conclusions of Law Nos. 2, 6.) The WCJ determined that Employer notified Claimant of his release to sedentary work and referred Claimant to four positions that were within his vocational and physical capabilities and would have paid $400 per week, but Claimant failed to pursue the positions in good faith. (WCJ's Conclusion of Law No. 4.) Accordingly, the WCJ granted Employer's modification petition and reduced Claimant's benefits for the period of April 12, 2006 to January 26, 2007. In addition, the WCJ found that Claimant's non-work-related injuries rendered him incapable of all possible work activity and suspended Claimant's benefits as of January 26, 2007.

Claimant appealed both the modification and suspension of benefits. The Board affirmed the WCJ's decision to modify Claimant's benefits, concluding that Claimant had waived that argument. However, relying on Struthers Wells v. Workers' Compensation Appeal Board (Skinner), 990 A.2d 176 (Pa. Cmwlth. 2010), the Board agreed with Claimant that the WCJ erred in suspending Claimant's benefits because Employer failed to establish the availability of a job equal to or ...


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