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Furnari v. Workers' Comp. Appeal Bd. (Temple Inland)

Commonwealth Court of Pennsylvania

April 10, 2014

Philip Furnari, Petitioner
Workers' Compensation Appeal Board (Temple Inland and Chartis/AIG/ESIS), Respondents

Submitted October 18, 2013

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Appealed from No. A11-1530. State Agency: Workers' Compensation Appeal Board.

Donald C. Ligorio, Kingston, for petitioner.

Michael S. Faber, Pittsburgh, for respondents.



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Philip Furnari (Claimant) petitions this Court for review of the Workers' Compensation Appeal Board's (Board) June 11, 2013 order affirming the Workers' Compensation Judge's (WCJ) order denying Claimant's Petition for Reinstatement of Compensation Benefits (Reinstatement Petition)/Claim Petition. There are six issues for this Court's review: (1) whether the WCJ and the Board erred by applying an improper burden of proof; (2) whether the WCJ and the Board erred by not finding Temple Inland (Employer) responsible for paying Claimant benefits; (3) whether the WCJ's finding that Claimant did not experience a worsening of his condition was based on substantial evidence; (4) whether the WCJ and the Board's finding that Claimant could perform available work as of April 2009 was based on substantial evidence; (5) whether the WCJ and the Board erred by failing to make a finding relative to the duration that the light-duty position offered to Claimant was available; and, (6) whether the WCJ and the Board erred by relying on a job description that contained inadmissible hearsay. We reverse that part of the Board's

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June 11, 2013 order applying a Claim Petition burden of proof, and affirm the remaining portions of the Board's order.

Claimant worked full-time for Employer as a corrugated box designer. On October 10, 2008, Claimant slipped, twisted and heard a snap in his right knee while at work. He was taken to the hospital. He underwent right knee surgery a few days later. Employer issued a Notice of Compensation Payable (NCP) on October 27, 2008, in which it agreed to pay medical expenses related to Claimant's right knee tendon tear, and it agreed to continue Claimant's salary. Claimant returned to work in a restricted capacity on November 24, 2008. Employer modified Claimant's job, but continued to pay his full salary. Claimant resigned from his employment with Employer on April 3, 2009, at which time Employer stopped paying Claimant's salary.

On September 25, 2009, Claimant filed a Reinstatement Petition seeking temporary total disability benefits alleging that his injury had worsened and that his earning power was affected. Employer filed an answer denying Claimant's allegations. Hearings were held before the WCJ on November 3, 2009, April 13, 2010 and September 30, 2010. At the November 3, 2009 hearing, Claimant amended his Reinstatement Petition to a Reinstatement Petition and/or Claim Petition to address the question of his compensation.[1] Employer amended its answer denying Claimant's Claim Petition allegations. On August 30, 2011, the WCJ denied Claimant's Reinstatement Petition on the basis that Employer's issuance of the NCP and payment of Claimant's salary constituted a de facto NCP, and that Claimant failed to meet his burden of proving that his condition had worsened to such an extent that he could not perform a modified job that was available to him. Claimant and Employer appealed to the Board. On June 11, 2013, the Board disagreed with the WCJ's finding that the medical-only NCP was a de facto NCP, and application of a Reinstatement Petition burden of proof; however, it affirmed the WCJ's decision because Claimant failed to meet his burden of proof that he experienced a worsening of his condition. Claimant appealed to this Court.[2]

Claimant first argues that the WCJ and the Board erred by applying an improper burden of proof. He specifically claims that the WCJ erroneously applied the burden of proof associated with a Claim Petition, rather than a Reinstatement Petition. Claimant's interpretation

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notwithstanding, the WCJ properly applied the Reinstatement Petition burden.

This Court has held:

A claimant seeking disability benefits [by Claim Petition] must prove that he has suffered a disability caused by a work-related injury. The claimant must show not only physical impairment, but also a loss of earning power. A 'disability' means a loss of earning power, not a physical disability caused by a work injury. If the claimant's loss of earnings is the result of the work injury, he is entitled to disability benefits; if not, benefits must be suspended.

Brewer v. Workers' Comp. Appeal Bd. (E2 Payroll & Staffing Solutions), 63 A.3d 843, 848 (Pa. Cmwlth. 2013) (citations omitted). Relative to reinstatement petitions, Section 413(a) of the Workers' Compensation Act (Act)[3] states, in pertinent part:

A workers' compensation judge designated by the department may, at any time . . . reinstate . . . a notice of compensation payable . . . upon proof that the disability of an injured employe has increased . . . [or] recurred . . . . Such . . . reinstatement . . . shall be made as of the date upon which it is shown that the disability of the injured employe has increased . . . [or] recurred . . . .

77 P.S. § 772. " Generally, a claimant seeking reinstatement . . . must prove that through no fault of his own, his disability is again adversely affected by the work injury, and the disability giving rise to the original claim continues." Ward v. Workers' Comp. Appeal Bd. (City of Phila.), 966 A.2d 1159, 1162 (Pa. Cmwlth. 2009).

Here, the WCJ found that " Employer has shown that [its] salary continuation was a de facto [NCP]," so he applied the burden of proof applicable to Reinstatement Petitions. WCJ Dec. at 14. Based on the evidence, however, the WCJ concluded that " Claimant has not met his burden of proving that his work-related disability worsened to the point that he could not perform the specially[-]created, modified[-]duty job when he left work, and benefits remain suspended." WCJ Dec. at 14. The WCJ therefore ordered that " Claimant's Petition, originally filed as a petition to Reinstate Benefits . . . and amended . . . to a Claim Petition, is DENIED and DISMISSED." WCJ Dec. at 14.

The Board, on the other hand, concluded:

We cannot agree that [Employer's] salary continuation payments to Claimant created a ' de facto NCP.'
. . . .
Here, [Employer] issued a medical-only NCP and kept Claimant on the payroll at full pay. There is no serious dispute that Claimant continued to have a work-related physical disability throughout the time he remained employed by [Employer]. However, he had no loss of earnings and thus, disability was not already established when Claimant's petition was filed. . . . Consequently, in order to establish eligibility for indemnity benefits, Claimant is required to establish disability and duration of disability [via a claim petition].

Board Op. at 4. The Board acknowledged, however, that since Claimant could not have prevailed under either a reinstatement or claim petition standard, the WCJ's error was harmless.

The law is well established that " [t]he WCJ is the ultimate factfinder and has exclusive province over questions of credibility and evidentiary weight." Univ. of Pa. v. Workers' Comp. Appeal Bd.

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(Hicks), 16 A.3d 1225, 1229 n.8 (Pa. Cmwlth. 2011). This Court has stated: " [I]t is irrelevant whether the record contains evidence to support findings other than those made by the WCJ; the critical inquiry is whether there is evidence to support the findings actually made." Lahr Mech. v. Workers' Comp. Appeal Bd. (Floyd), 933 A.2d 1095, 1101 (Pa. Cmwlth. 2007) (quoting Minicozzi v. Workers' Comp. Appeal Bd. (Indus. Metal Plating, Inc.), 873 A.2d 25, 29 (Pa. Cmwlth. 2005)). " We review the entire record to determine if it contains evidence a reasonable mind might find sufficient to support the WCJ's findings. If the record contains such evidence, the findings must be upheld even though the record contains conflicting evidence." Lahr Mech., 933 A.2d at 1101 (citation omitted).

Substantial evidence is such relevant evidence as a reasonable person might accept as adequate to support a conclusion. In performing a substantial evidence analysis, this court must view the evidence in a light most favorable to the party who prevailed before the factfinder. Moreover, we are to draw all reasonable inferences which are deducible from the evidence in support of the factfinder's decision in favor of that prevailing party.

Waldameer Park, Inc. v. Workers' Comp. Appeal Bd. (Morrison), 819 A.2d 164, 168 (Pa. Cmwlth. 2003) (citations omitted).

Section 406.1 of the Act provides, in pertinent part:

(a) The employer . . . shall promptly investigate each injury reported or known to the employer and shall proceed promptly to commence the payment of compensation due either pursuant to an agreement upon the compensation payable or a notice of compensation payable as provided in [S]ection 407 [of the Act, 77 P.S. § 731,] . . . on forms prescribed by the department and furnished by the insurer. . . . Any payment of compensation . . . subsequent to [a] . . . notice of compensation payable . . . or greater in amount than provided therein shall, to the extent of the amount of such payment or payments, discharge the liability of the employer with respect to such case.
(b) Payments of compensation pursuant to an agreement or notice of compensation payable may be suspended, terminated, reduced or otherwise modified by petition and subject to right of hearing as provided in [S]ection 413 [of the Act, 77 P.S. § § 771-774].

77 P.S. § 717.1.[4]

The NCP form under the section entitled " Compensation is payable as follows," lists five statements for employers to complete pertaining to a claimant's compensation. Preceding those questions is a box containing the following statement: " Check only if compensation for medical treatment (medical only, no loss of wages) will be paid subject to the [Act]. . . . For compensation for medical treatment only, you should not complete numbers 1 through 5." Reproduced Record (R.R.) at 71a. Employer herein checked the box, but also answered NCP Question No. 4 which reads: " [p]ayments will ...

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