Submitted: July 19, 2013
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
PATRICIA A. McCULLOUGH, Judge
Nancy Turner (Claimant) petitions for review of the March 1, 2013 order of the Workers' Compensation Appeal Board (Board), which affirmed the decision of a workers' compensation judge (WCJ) granting a suspension petition filed by the City of Pittsburgh (Employer). We now vacate and remand.
On February 5, 1994, Claimant was involved in a motor vehicle accident in the course and scope of her employment as a police officer for Employer. As a result of this accident, Claimant sustained injuries to her neck, left shoulder, back, right wrist, and right knee. (Notice of Compensation Payable (NCP), Reproduced Record (R.R.) at 72a-73a.) Claimant subsequently returned to work at a modified-duty job in Employer's identification department, and she received Heart and Lung Act benefits in lieu of workers' compensation from February 6, 1994, through August 27, 2003. Claimant continued to work the modified-duty job until Employer discontinued its light-duty program in 2003. (WCJ's Findings of Fact Nos. 1-5.)
As set forth in the NCP issued by Employer on April 11, 2005, Claimant's Heart and Lung Act benefits were converted to workers' compensation benefits as of August 28, 2003, based on a medical determination that "Claimant's injury is of a lasting and indefinite nature, such that [she] will not be able to return to [her] job" and "based on the Claimant's acceptance of a disability retirement through [Employer]." (R.R. at 73a.) Claimant did not look for other work thereafter.
Following an independent medical examination (IME) of Claimant on June 12, 2007, Employer sent Claimant a notice of ability to return to work (NARW) dated June 21, 2007. On August 8, 2007, Employer filed a petition to suspend Claimant's compensation benefits alleging that Claimant had "voluntarily removed herself from the workforce/labor market as she is physically capable of performing light duty or modified work and yet has not sought employment." (R.R. at 3a.) Claimant filed an answer denying the allegation in Employer's suspension petition and asserting that she "was put out of the work force involuntarily by [Employer] and would otherwise continue to work. Additionally [she] has not otherwise removed herself from employment." (R.R. at 5a.)
The matter was assigned to a WCJ who held multiple hearings. Claimant testified to the facts described above. Claimant stated that she continues to suffer from a burning pain in her neck, which radiates down her left arm and into her left hand, left shoulder pain, and low back pain. (R.R. at 25a-26a.) Claimant added that she continues to undergo physical therapy as prescribed by an orthopedic surgeon. (R.R. at 42a.) On cross-examination, Claimant agreed that she was capable of performing some level of work, such as the work she previously did in Employer's identification department. (R.R. at 37a-38a.) Claimant also acknowledged that she did not look for work immediately following her retirement. (R.R. at 41a.) However, Claimant testified that she would not have applied for a disability pension if her job had not been removed. (R.R. at 36a.)
Claimant also stated that after receiving the NARW, she enrolled in a skills-training program entitled "New Choices, New Options" at the Community College of Allegheny County. (R.R. at 34a.) This program ran for eight weeks, meeting four days per week, for four hours per day, and taught individuals how to write resumes and participate in interviews. (R.R. at 34a-35a.) Claimant completed the program on November 1, 2007. (R.R. at 35a.) Claimant then tested to enter into an office technology program at the Bidwell Training Center. Id.
Employer presented the deposition testimony of Deborah Curry, a senior claims examiner for UPMC WorkPartners, the third-party administrator for Employer's workers' compensation program. Curry explained that Employer discontinued its transitional-duty program in 2003 and instituted a new program in 2005. (R.R. at 105a.) Curry testified that this new program was only available to active employees and that Claimant, having retired with a disability pension in 2003, was not eligible to participate. (R.R. at 100a-01a.) However, Curry noted that a retired employee may return to a full-duty job with Employer, assuming he or she qualifies for the position. (R.R. at 107a.)
Employer also presented the deposition testimony of Nasimulla Rehmatullah, M.D., a board-certified orthopedic surgeon who examined Claimant on June 12, 2007. Dr. Rehmatullah testified that his physical examination of Claimant was essentially benign, but noted some tenderness on the left side of Claimant's neck, left trapezius, and lower back. (R.R. at 136a-37a.) Dr. Rehmatullah also described Claimant's neurological examination as normal. (R.R. at 137a.) Dr. Rehmatullah opined that, despite some mild residuals relating to her original work injuries, Claimant was capable of returning to her pre-injury job as a police officer without restrictions. (R.R. at 138a-39a.) However, Dr. Rehmatullah qualified his opinion by stating that if the 1994 injury to Claimant's right-knee resulted in her surgery, he would release her to light-duty work only. (R.R. at 142a-43a.) Dr. Rehmatullah noted that a right knee injury was never mentioned in a treatment course after the work injury and that the surgery was not until many years later. (R.R. at 147a.)
By decision dated January 16, 2009, the WCJ granted Employer's suspension petition. The WCJ accepted Claimant's testimony as generally credible. However, the WCJ rejected her allegation that she had not voluntarily withdrawn from the workforce "as she clearly has work capabilities and has admittedly not looked for work since retiring." (WCJ's Finding of Fact No. 19; R.R. at 171a.) The WCJ also accepted the testimony of Curry and Dr. Rehmatullah as credible and persuasive. The WCJ found that, because Claimant retired and was no longer an active employee, Employer was not required to offer Claimant a return to her regular job or a new light-duty position. Thus, the WCJ concluded that Employer met its burden of establishing that Claimant voluntarily withdrew from the workforce and was still capable of performing at least light-duty work. The WCJ also concluded that Claimant failed to establish that she had been looking for work following her retirement. Claimant appealed to the Board, which remanded for further findings regarding whether Claimant was forced into retirement because of her work injuries.
On remand, Claimant testified that, at the request of a neighbor, she worked a babysitting job with the YWCA Child Care Partnership for approximately four months beginning in May or June 2009. (R.R. at 59a, 62a.) Claimant testified that she received a 1099 form reflecting her income and she reported her earnings to UPMC Work Partnership. (R.R. at 59a, 64a.) Claimant testified that she was unable to continue performing this job because of excruciating pain in her back, noting that her doctor sent her from his office to an emergency room for treatment around this time. (R.R. at 59a, 66a.) Claimant stated that she would still be babysitting but for the pain in her back. (R.R. at 67a.)
By decision dated October 19, 2010, the WCJ again granted Employer's suspension petition, effective August 8, 2007. The WCJ concluded that Claimant was capable of performing work within her restrictions, but that she had voluntarily removed herself from the labor market. The WCJ again concluded that Claimant failed to establish that she was forced into retirement because of her work injuries or that she looked for work after her retirement. The WCJ's credibility determinations remained unchanged.
Claimant appealed to the Board, which affirmed. Citing City of Pittsburgh v. Workers' Compensation Appeal Board (Leonard), 18 A.3d 361 (Pa. Cmwlth. 2011), Day v. Workers' Compensation Appeal Board (City of Pittsburgh), 6 A.3d 633 (Pa. Cmwlth. 2010), and City of Pittsburgh v. Workers' Compensation Appeal Board (Robinson), 4 A.3d 1130 (Pa. Cmwlth. 2010) (Robinson I), affirmed, __Pa. __, 67 A.3d 1194 (2013) (Robinson II), the Board stated that after an employer establishes the claimant's receipt of a disability pension and a NARW indicating restored earning power, the burden shifts to the claimant to rebut the presumption that she has voluntarily withdrawn from the workforce. (R.R. at 205a-06a.) The Board noted that Claimant "had no legal obligation to look for work prior to the issuance of the NARW." (R.R. at 208a.) Nevertheless, the Board relied on Claimant's admission that she had no intention of returning to work at the time she accepted her disability pension and the fact that she ...