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Reichert v. Workers' Compensation Appeal Board (Dollar Tree Stores/Dollar Express and Specialty Risk Services, Inc.)

Commonwealth Court of Pennsylvania

November 8, 2013

James Reichert, Petitioner
v.
Workers' Compensation Appeal Board (Dollar Tree Stores/Dollar Express and Specialty Risk Services, Inc.), Respondents

Argued: October 10, 2013.

BEFORE: HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge (P.) HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION

P. KEVIN BROBSON, Judge.

Petitioner James Reichert (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board). The Board affirmed the Workers' Compensation Judge's (WCJ) grant of Dollar Tree Stores, Inc.'s (Employer) petition to modify benefits based on a labor market survey. For the reasons set forth below, we now affirm.

On April 2, 2001, Claimant suffered a work injury while employed as a truck driver for Employer. (Certified Record (C.R.), Notes of Testimony (N.T.), December 18, 2009, at 8.) On March 30, 2009, Employer filed a modification petition, alleging that as of March 10, 2009, "work [was] generally available to [Claimant] within his vocational and physical capabilities." (Reproduced Record (R.R.) at 4a-6a.) Claimant filed a timely answer, specifically denying Employer's allegations. (R.R. at 8a.) The matter was assigned to the WCJ.

At the hearing before the WCJ, Employer presented the deposition testimony of its district manager, Gerald Joka. (Id. at 216a.) Mr. Joka testified that although he has been with Employer for thirty-four years, he has only been a district manager for about eight years. (Id. at 217a.) He also testified that he is "in charge of sales, hiring, firing, pretty much everything to do with the ten local stores" in his district. (Id. at 216a-17a.) He acknowledged that he routinely is aware of available, open positions within his ten stores. (Id. at 217a-18a.) He testified that when Employer has open positions, it advertises them through a computer system that permits applicants to apply online. (Id. at 218a.) Further, addressing a question about whether he could describe "general positions within" Employer's retail stores, Mr. Joka testified that available positions include cashiers, stockers, assistant managers, managers and district managers. (Id. at 221a-22a (emphasis added).) He testified that "all of those positions are going to require pretty much a lot of physical movement . . . . Most of the day is spent lifting, merchandising, cleaning of the store, [and] doing recovery." (Id. at 222a.) Indeed, Mr. Joka testified that "[t]here's very little office work, probably for the manager itself a half hour as far as office work is concerned, no real office work for the cashiers or stockers, and very minimal office work for assistant managers." (Id.)

Mr. Joka further testified that he reviewed Dr. David Baker's independent medical examination (IME) report, which restricted Claimant "to lifting in a light-duty capacity"—i.e., "1 to 10 pounds frequently and 11 to 20 pounds occasionally."[1] (Id. at 220a-21a.) He testified that Employer did not have any open positions from July 28, 2008, until March 10, 2009, that could have comported with Dr. Baker's "extreme" limitations for Claimant.[2] (Id. at 223a (emphasis added).) Specifically, he testified that "whether it's cashiering or stocking, at some point the individual is going to have to be lifting more than the weight limits and requirements from [Dr. Baker]." (Id. at 223a-24a.)

On cross-examination, Mr. Joka testified that no one had ever asked him to look for a job for Claimant and that he was never contacted by Employer's vocational expert. (Id. at 232a.) He also acknowledged that Employer does not have actual written job descriptions for the retail store positions—i.e., "cashiering, stocking, assistant manager and manager." (Id. at 233a.) Finally, he reiterated that office work at the stores was limited only to the managerial positions. (Id. at 238a.)

Next, Employer presented the deposition testimony of its vocational expert, John W. Dieckman. Mr. Dieckman testified that he was approved by the Pennsylvania Department of Labor and Industry (Department) "to conduct interviews to assess earning power." (Id. at 255a.) He also testified that he interviewed Claimant on August 31, 2008. (Id. at 256a.) Following the interview, Mr. Dieckman "confirmed with [Specialty Risk Services (SRS)], [that Employer] is not able to offer [Claimant] employment consistent with his limitations." (Id. at 259a (emphasis added).) He testified that typically, once he completes an initial evaluation of a claimant, he contacts the employer or its representatives "to determine if a job offer is possible or feasible." (Id.) Mr. Dieckman thereafter performed a vocational analysis for eleven positions, of which he sent nine to Dr. Baker for approval. (Id. at 261a.) He testified that Dr. Baker approved the submitted positions for Claimant. (Id. at 262a-68a.)

On cross-examination, Mr. Dieckman admitted that he did not directly speak with Employer about possible job openings for Claimant prior to conducting a labor market survey. (Id. at 270a.) Rather, he spoke with SRS, Employer's third-party administrator, to assess job availability. (Id.)

In response, Claimant presented the testimony of his vocational expert, Gary A. Young, who is certified by the Department to conduct labor market surveys. (Id. at 373a-74a.) He testified that, on April 22, 2009, he performed a vocational evaluation of Claimant. (Id. at 377a-78a.) He testified that, in so doing, he reviewed Mr. Dieckman's labor market survey relating to Claimant. (Id. at 380a.) Disagreeing with Mr. Dieckman's conclusions, Mr. Young testified that the jobs in the labor market survey were inappropriate for Claimant because of Claimant's background. (Id. at 401a, 412a.)

Alternatively, Mr. Young testified that Mr. Dieckman did not contact Employer to inquire about open and available positions in Employer's retail stores prior to conducting the labor market survey. (Id. at 391a.) Indeed, Mr. Young opined that Mr. Dieckman had a "mandatory" duty to so inquire. (Id. at 391a-92a.) Mr. Young also testified that Employer has a number of retail stores, warehouses, and offices, and that Mr. Dieckman should have inquired into whether an open and available job in each of those locations existed for Claimant. (Id. at 391a.) Mr. Young testified that he located fifty-six retail stores within a fifty-mile radius from Claimant's home address. (Id. at 393a.) Mr. Young used the number of retail stores to emphasize that Mr. Joka's testimony did not cover all fifty-six stores, but rather only the ten stores of which he was in charge. (Id. at 394a.) Finally, he testified that "at the time of my evaluation" of Claimant, Employer's website indicated that Employer was "actively recruiting for workers in various areas." (Id. at 392a (emphasis added).)

On cross-examination, Mr. Young acknowledged that Employer's website did not list any specific jobs. (Id. at 422a-23a.) He also acknowledged that he did not know the locations of Employer's corporate or regional offices. (Id. at 424a.) Mr. Young conceded that, given his condition, Claimant likely would not have been able "to drive a fifty-mile radius." (Id. at 425a.) Mr. Young opined that twelve of the fifty-six stores were within a twelve-mile radius of Claimant's home. (Id. at 426a.)

By decision and order dated October 28, 2010, the WCJ granted Employer's modification petition. (WCJ's decision at 18.) In so doing, the WCJ issued factual findings derived largely from the ...


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