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Dougherty v. Workers' Compensation Appeal Bd. (QVC, Inc.)

Commonwealth Court of Pennsylvania

October 14, 2014

Thomas Dougherty, Petitioner
v.
Workers' Compensation Appeal Board (QVC, Inc.), Respondent

Submitted July 25, 2014

Page 592

Appealed from No. A12-1261. State Agency: Workers' Compensation Appeal Board.

Michael G. Dryden, Philadelphia, for petitioner.

Katherine M. Mezzanotte, Philadelphia, for respondent QVC, Inc.

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE ANNE E. COVEY, Judge.

OPINION

Page 593

ROBERT SIMPSON, Judge

Thomas Dougherty (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board), which affirmed the decision of a Workers' Compensation Judge (WCJ) dismissing Claimant's reinstatement petition under Section 413(a) of the Workers' Compensation Act (Act).[1] Claimant contends the competent evidence supports reinstatement because he is entitled to the presumption that his continuing disability caused his loss of earnings after layoff. Applying the presumption, Claimant argues reinstatement is warranted unless QVC, Inc. (Employer) could establish that he committed bad faith. Because the WCJ erred in failing to apply the legal presumption of causation, we vacate and remand to the Board to remand to the WCJ to apply the presumption here.

I. Background

Claimant was employed as a corporate video producer for nine years at the time he injured his Achilles tendon in January 2009. As a corporate video producer, Claimant performed multiple functions for a shoot, which included carrying heavy equipment, standing, lighting, blocking scenes, and camera operations. Claimant returned to work in June 2009, when his benefits were suspended. At the time he returned to work, Claimant notified his then-supervisor of his physical restrictions. Employer laid-off this supervisor during corporate restructuring.

Upon eliminating Claimant's position in April 2010 for economic reasons, Employer transferred Claimant to a writer-producer position without any loss in salary. The writer-producer position was less physically demanding than his prior position, consisting of sedentary desk work. Approximately a year later, Employer discharged Claimant based on unsatisfactory work performance. Claimant seeks reinstatement of wage loss benefits as of the date of his discharge from employment.

Claimant filed reinstatement and penalty petitions.[2] Claimant testified and submitted

Page 594

the deposition testimony of his treating physician Dr. Wen Chao (Treating Physician). In rebuttal, Employer presented the testimony of Claimant's supervisor, Claire Wolper (Supervisor), and submitted the deposition testimony of its medical expert.

Ultimately, the WCJ credited the testimony of Treating Physician over that of Employer's medical expert. Treating Physician testified that Claimant had restrictions upon his return to work in June 2009, after surgery on his Achilles tendon. Treating Physician also testified Claimant could only perform sedentary work. In April 2011, Treating Physician submitted revised restrictions, which included lifting limitations and standing limitations to one to three hours per day.

The WCJ found Claimant's testimony established he was capable of performing the writer-producer position, and was unhappy with the position change. When he returned to his pre-injury (video producer) job after his surgery, Claimant reported his restrictions to his then-supervisor, who was later fired and replaced by Supervisor. Claimant testified he believed Employer eliminated his pre-injury job of video producer because of his work injury. Claimant conceded that his inability to perform the job of a writer-producer did not relate to his physical restrictions.

Supervisor testified she began supervising Claimant in the fall of 2009. No one informed her about Claimant's restricted activities or limitations, and she was unaware of them. A writer-producer writes scripts and performs tasks that are not on air, such as consults with cameramen, stylists, and other pre-production work. She testified video work was a low priority for Employer, as it consisted of about one percent of the work in her department. Claimant was the only video producer when Employer eliminated the position and transitioned him to a writer-producer like the other employees in her department. The transition was unsuccessful because Claimant did not submit completed scripts on deadline, and did not possess the skills necessary to perform the writer-producer job, despite training.

The WCJ found that the testimony did not establish that Claimant's earning power was adversely affected by his disability. WCJ Op., 9/7/2012, Finding of Fact (F.F.) No. 39. Therefore, she dismissed the reinstatement and penalty petitions. Claimant appealed the dismissal of reinstatement to the Board.[3]

The Board noted Claimant appealed only as to the WCJ's Finding of Fact No. 39, and Conclusion of Law No. 3, that his loss of earning power did not relate to his disability. The Board affirmed the WCJ, reasoning Claimant was not entitled to the ...


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