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Keller v. Workers' Compensation Appeal Board (UPMC Presbyterian Shadyside)

Commonwealth Court of Pennsylvania

December 15, 2014

Nancy Keller, Petitioner
v.
Workers' Compensation Appeal Board (UPMC Presbyterian Shadyside), Respondent

Submitted September 5, 2014

Appealed from No. A10-0428. Workers' Compensation Appeal Board.

Ronald J. Fonner, Greensburg, for petitioner.

Joseph D. Talarico, Pittsburgh, for respondent.

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE P. KEVIN BROBSON, Judge.

OPINION

McGINLEY, JUDGE

Nancy Keller (Claimant) petitions for review from the order of the Workers' Compensation Appeal Board (Board)

Page 823

which affirmed as modified the Workers' Compensation Judge's (WCJ) denial of UPMC Presbyterian Shadyside's (UPMC) Suspension Petition and found that earnings attributable to Claimant's concurrent employment at the University of Pittsburgh (Pitt) should be excluded because of her voluntary resignation, therefore reducing Claimant's average weekly wage (AWW) as of the date of resignation from Pitt to include only earnings attributable to UPMC and Monongahela Valley Hospital (Mon Valley).

The WCJ denied the Suspension Petition and made the following relevant findings of fact:

1. The claimant, Nancy Keller, sustained a work-related injury in the form of a fracture of her right wrist on November 24, 2006, during the course and scope of her employment with UPMC Presbyterian Shadyside. Pursuant to a Notice of Compensation Payable dated January 31, 2007, the claimant began receiving Workers' Compensation Benefits at the rate of $745.00 per week, based upon an average weekly wage of $2,271.36.
2. On or about November 9, 2007, the claimant filed a Petition for Penalties against the employer, requesting that penalties be assessed against the employer for having unilaterally terminated her benefits as of May 1, 2007, in violation of the Workers' Compensation Act.[1]
3. The employer filed a timely and responsive Answer, denying the material allegations contained in the claimant's Penalty Petition.
4. On or about December 6, 2007, the employer filed a Petition to Suspend Compensation Benefits against the claimant, requesting suspension of the claimant's benefits as of May 1, 2007, based upon an allegation that the claimant had voluntarily removed herself from an available work position with the employer on that date, and has failed to sign Supplemental Agreements.
5. The claimant filed a timely and responsive Answer, denying the material allegations contained in the employer's Suspension Petition. By way of further answer, the claimant averred that she was not earning wages greater than her time of injury average weekly wage while employed by the employer in modified duty, and was therefore entitled to a modification of her benefits rather than a suspension.
6. At the hearing held on April 29, 2008, the claimant submitted a corrected Notice of Compensation Payable and corrected Statement of Wages, therein reflecting a time of injury average weekly wage of $2,556.31, with a corresponding compensation rate of $745.00 per week. The Statement of Wages included the claimant's wages from her concurrent employment.
7. During the proceedings, the claimant testified by deposition on April 4, 2008, and again by deposition on April 13, 2009. She also testified at the hearing held on April 29, 2008. At the time of her April 4, 2008 deposition, she testified that at the time of her work injury in November 2006, she was employed by UPMC Presbyterian as a Primary Nurse Care Coordinator...[t]he position also included some direct patient contact on occasions when the unit was short of nurses....
While performing her job duties on November 24, 2006, she came out of her office with papers when she fell on a wet waxed floor, falling on her right hand

Page 824

and fracturing her right wrist. She experienced immediate severe pain and was transported by wheelchair down to the emergency room. After undergoing x-rays and being treated by the emergency room physicians, she was placed in a splint and instructed to see a surgeon. She then saw the surgeon, Dr. Ronit Wollstein on November 28, 2006.
The claimant further testified that following the incident, she remained off work through the beginning of May, 2007, during which time she continued to treat with Dr. Wollstein and underwent three surgeries. She returned to UPMC Presbyterian in May 2007 at a modified light duty position....[s]he did not have any direct patient care.
The claimant further testified that at the time of her work injury, she also had concurrent employment with two other employers. She worked for the University of Pittsburgh as a part time clinical instructor, adjunct faculty, and also worked for Mon Valley Hospital as a staff nurse in the emergency room. Those two positions also involved similar direct patient care. When she returned to work with UPMC Presbyterian in May 2007, she ...

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