Argued: May 1, 2017
BEFORE: HONORABLE P. KEVIN BROBSON, Judge HONORABLE JULIA K.
HEARTHWAY, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
KEVIN BROBSON, Judge
Holy Redeemer Health System (Employer) petitions for review
of an order of the Workers' Compensation Appeal Board
(Board). The Board affirmed the decision of a Workers'
Compensation Judge (WCJ), granting the claim petition filed
by Jennifer Lux (Claimant) and denying the termination
petition filed by Employer. For the reasons set forth herein,
we now affirm the Board's order.
worked for Employer as a telemetry R.N. On October 11, 2011,
Claimant sustained a work-related soft tissue injury to her
lumbar spine. Employer accepted liability for Claimant's
work-related injury pursuant to a medical-only Notice of
Compensation Payable. On September 18, 2014, Claimant filed a
claim petition, asserting that she sustained a lumbar sprain,
facet arthropathy, and radiculitis while working for Employer
on October 11, 2011, and that she is partially disabled as a
result thereof. Thereafter, on September 26, 2014,
Employer filed a termination petition, asserting that
Claimant had fully recovered from her work-related injury as
of February 15, 2013.
testified by deposition on November 11, 2014, and before the
WCJ at a hearing held on May 6, 2015. Claimant explained that
in her position as a telemetry R.N., she was responsible for
watching patient heart monitors, administering medications
and IV fluids, and helping nursing assistants with patient
toileting, bathing, transporting for diagnostic studies,
vital signs, and Accu-Cheks. (Reproduced Record (R.R.) at
20a.) In order to perform these duties, Claimant was required
to bend, squat, twist, lift, carry, and maneuver patients.
(Id. at 20a-21a, 125a.) As a telemetry R.N.,
Claimant was paid approximately $38 to $39 per hour and
worked twenty-four hours per week, but she would also pick up
additional shifts in the wintertime. (Id. at
testified further that on October 11, 2011, she had been
pulled to a neurology floor to work as an aide. (Id.
at 23a.) Claimant explained that she was bent over at the
waist attempting to bathe and change a stroke patient who had
been paralyzed, when she experienced a sharp, stabbing, and
excruciating pain in her back. (Id. at 23a-24a.)
Claimant immediately sought treatment for her work-related
injury from Employer's emergency department and was
released to return to work in a light-duty capacity.
(Id. at 30a.) Thereafter, Claimant treated with
Occupational Health and Leonard A. Bruno, M.D. (Dr. Bruno).
(Id. at 25a-28a.) During that time, Claimant
remained under light-duty restrictions. (Id. at 48a,
132a.) Claimant reported that her back pain has improved
since the October 11, 2011 work-related injury, but she
continues to experience pressure and a burning,
uncomfortable, dull pain in her low back, she cannot sit or
stand for prolonged periods of time, and she experiences pain
with bending and lifting. (Id. at 37a-38a, 41a,
126a, 129a.) Claimant reported further that prior to October
11, 2011, she did not have any problems with her back.
(Id. at 29a, 38a.)
did not have any time off of work following her October 11,
2011 work-related injury. (Id. at 29a.) Rather,
Claimant returned to a modified-duty position with Employer
in her pre-injury telemetry unit with no loss of wages.
(Id. at 30a-31a.) Toward the end of 2012,
Employer's nursing office requested that Claimant also
assist in the care management department performing
"opens." (Id. at 31a, 132a.) This involved
verbally interviewing patients and their family members to
determine the patients' home set-ups and what the
patients were capable of doing at home, and then entering all
the information obtained onto computer assessment forms.
(Id. at 31a-32a.) In February 2013, while she was
assisting in the care management department but also
continuing to work modified duty as a telemetry R.N.,
Employer created a permanent, available position in the care
management department and offered it to Claimant.
(Id. at 44a-45a, 132a.) Employer did not force or
require Claimant to leave her modified-duty telemetry R.N.
position. (Id. at 45a.) Dr. Bruno also did not
require Claimant to stop performing the modified-duty
telemetry R.N. position. (Id. at 134a-35a.) Claimant
accepted the permanent care management position voluntarily.
(Id. at 45a.)
Claimant testified that in the permanent care management
position, she is paid approximately $30 per hour and works
twenty hours per week. (Id. at 32a, 124a-25a.)
Claimant explained that she sometimes works more than twenty
hours per week when she has not completed her work on time or
is on-call. (Id. at 36a.) In September 2014, more
than a year after she voluntarily accepted the permanent care
management position, Claimant contacted Employer's human
resources department to determine whether she could return to
her pre-injury, telemetry R.N. position. (Id. at
33a-34a, 43a-44a.) At that time, Claimant was informed that
she could not apply for an R.N. position in the nursing
department while on light duty. (Id. at 33a.)
Claimant explained that she wanted to return to any nursing
position, not specifically her pre-injury position, because
she was losing her nursing skills, she was not receiving any
continuing education, she no longer had her certifications,
and she had suffered a loss in wages while working in the
care management department. (Id. at 34a, 130a-31a.)
Claimant attributed the loss in wages to her October 11, 2011
work-related injury. (Id. at 34a.) Around that same
time, Claimant returned to Dr. Bruno and requested that he
release her to return to nursing. (Id. at 44.)
Claimant explained that she was not certain whether she could
return to a full-time R.N. position, but she stated that it
would probably depend on the specific position and the hours.
(Id. at 131a.) Claimant explained further that she
did not think that she could perform a full-time R.N.
position that required heavy lifting or bending.
(Id.) As of the May 6, 2015 hearing, Claimant
continued to work for Employer in the care management
position. (Id. at 123a.)
support of her claim petition and in opposition to
Employer's termination petition, Claimant presented the
deposition testimony of Dr. Bruno, who is board certified in
neurological surgery. Dr. Bruno first treated Claimant on
December 27, 2011. (Id. at 86a.) After obtaining a
history, performing a physical examination, and reviewing a
December 6, 2011 MRI of Claimant's lumbar spine, Dr.
Bruno diagnosed Claimant with a work-related lumbar sprain
that had resulted in lumbar facet arthropathy. (Id. at
86a-90a.) Dr. Bruno opined that while Claimant is not capable
of returning to her pre-injury nursing position, she is and
always has been capable of performing either light-duty or
sedentary-duty work. (Id. at 92a, 97a.) Dr. Bruno
agreed that at no time in the course of his treatment of
Claimant was Claimant incapable of performing the light-duty
position as a telemetry R.N. with Employer. (Id. at
98a.) In September 2014, upon Claimant's request, Dr.
Bruno agreed to release Claimant to perform her pre-injury
nursing position on a trial basis. (Id. at 92a-93a,
101a.) Dr. Bruno did not know whether Claimant thereafter
decided she was not able to return to her pre-injury nursing
position or whether Employer did not permit her to do so.
(Id. at 93a, 101a.) To Dr. Bruno's knowledge,
Claimant continues to work for Employer under light-duty
restrictions. (Id. at 96a.)
September 30, 2015, the WCJ issued a decision, granting
Claimant's claim petition and denying Employer's
termination petition. In so doing, the WCJ summarized the
witnesses' testimony, made credibility determinations,
and made factual findings. Ultimately, the WCJ concluded: (1)
Claimant met her burden of proving that her October 11, 2011
work-related injury caused her to be "unable to perform
her time of injury job as a [t]elemetry [R.N.] and [that she]
began to suffer a loss of earning power due to the ongoing
symptoms from the October 11, 2011 injury[, ] causing her to
take the [c]are [m]anage[ment] position[;]" and (2)
Employer failed to meet its burden of proving that Claimant
had fully recovered from her work-related injury as of
February 15, 2013. (WCJ's Decision at 16.) Employer
appealed to the Board, which affirmed the WCJ's decision.
Employer then petitioned this Court for review.
appeal,  Employer argues that the WCJ committed an
error of law in granting Claimant's claim
petition. More specifically, Employer contends that
Claimant could not have sustained her burden of proof because
Dr. Bruno's credible testimony confirms that Claimant was
capable of performing the light-duty position made available
to her by Employer and Claimant never testified that her
ongoing limitations forced her to switch from the light-duty
position as a telemetry R.N., with some care management
duties, to the permanent position in the care management
department. In support of this argument, Employer relies on
Shenango, Inc. v. Workmen's Compensation Appeal Board
(Weber), 646 A.2d 669 (Pa. Cmwlth. 1994), wherein this
Court held that the claimant's loss of wages was not the
result of his physical limitations from his work-related
injury, but rather the claimant's voluntary decision to
bid out of his pre-injury department where he had been
working in a modified-duty position with no loss of earnings.
Employer contends that this case is similar to
Shenango because Claimant, like the claimant in
Shenango, "remained capable of performing work
made available in her pre-injury department and presented no
evidence suggesting that she was required to take the
job" in the care management department. (Employer's
Br. at 16.)
response, Claimant argues that she met her burden of proving
her entitlement to partial disability benefits because the
record establishes: (1) she sustained a work-related injury
while working for Employer on October 11, 2011; (2) she
returned to her pre-injury position in a light-duty capacity
following her work-related injury; (3) she was offered and
accepted a second, light-duty position with Employer in the
care management department; and (4) she suffered a loss of
wages as a result of accepting the second, light-duty
position in the care management department. Claimant argues
further that Employer's reliance on Shenango is
misplaced because Claimant did not seek out the permanent
care management position, but rather Employer offered her the
position, and Employer did not present any evidence to
dispute Claimant's testimony that there were no open and
available light-duty positions in the telemetry unit that
were within Claimant's restrictions.
legal question to be decided in this case is whether a
claimant who has returned to work in a modified-duty position
with her pre-injury employer at no loss of wages and who
later voluntarily accepts a permanent position offered to her
by her pre-injury employer at a loss of wages suffers a loss
of earning power caused by the work-related injury. In a
claim petition, a claimant bears the burden of proving all
the necessary elements for an award of workers'
compensation benefits. Inglis House v. Workmen's
Comp. Appeal Bd. (Reedy), 634 A.2d 592, 595 (Pa. 1993).
The claimant must prove not only that she sustained a
work-related injury, but also that the work-related injury is
the cause of her disability. Cardyn v. Workmen's
Comp. Appeal Bd. (Heppenstall), 534 A.2d 1389, 1390 (Pa.
1987). "Disability" is synonymous with
"earning power" and is more specifically defined as
a "loss of earning power attributable to the
work-related injury." Landmark Constructors, Inc. v.
Workers' Comp. Appeal Bd. (Costello), 747 A.2d 850,
854 (Pa. 2000). Under Section 306(b) of the Workers'
Compensation Act (Act),  a claimant is entitled to partial
disability benefits if her earning power is decreased as a
result of her ...