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Valenta v. Workers' Compensation Appeal Board (Abington Manor Nursing Home and Rehab and Liberty Insurance Company)

Commonwealth Court of Pennsylvania

December 7, 2017

Laurie Valenta, Petitioner
Workers' Compensation Appeal Board (Abington Manor Nursing Home and Rehab and Liberty Insurance Company), Respondents

          Submitted: September 13, 2017




         Laurie Valenta (Claimant) petitions for review of the July 1, 2016 order of the Workers' Compensation Appeal Board (Board) affirming the decision of the Workers' Compensation Judge (WCJ) modifying wage loss benefits paid to Claimant by Abington Manor Nursing Home and Rehab (Employer) and Liberty Insurance Corporation (Insurer).

         Facts and Procedural History

         Claimant had been receiving total disability benefits pursuant to the Workers' Compensation Act (Act)[1] for a work injury sustained on October 2, 2010, in which a prior WCJ, by decision circulated September 27, 2012, found she had aggravated a pre-existing calcific tendinitis with chronic tendinopathy of the left shoulder, and sustained disc herniations at C5-C6 and C6-C7 with radiculopathy, a left trapezial strain, left medial scapular strain, and a left posterior shoulder strain. (WCJ's Finding of Fact No. 2.)

         On January 2, 2014, Insurer commissioned a labor market survey and earning power assessment (LMS/EPA) pursuant to section 306(b) of the Act.[2](Reproduced Record (R.R.) at 342a.) The LMS/EPA listed six jobs with weekly pay ranging from $320.00 to $420.00. (R.R. at 297a-319a.)

         Employer filed a modification petition seeking to reduce Claimant's wage loss benefits because of an alleged earning capacity. Claimant filed a timely answer denying all material allegations.

         In a deposition taken on September 15, 2014, Employer submitted the medical testimony of Eugene Chiavacci, M.D. Board-certified in orthopedic surgery, Dr. Chiavacci testified that he examined Claimant twice on behalf of Employer, on March 29, 2011, and October 1, 2013. Dr. Chiavacci obtained a history of Claimant's work injury and surgery, and he testified that he reviewed records, reports, and studies concerning Claimant's treatment since the work injury. Among the records he reviewed was an x-ray of August 19, 2011, which he stated demonstrated a stable cervical fusion. After performing a physical examination on Claimant at the 2013 examination, he testified that he believed she was capable of standing between one and three hours at a time; sitting five to eight hours at a time; alternating sitting and standing between five and eight hours at a time; walking one to three hours at a time; driving one to three hours at a time; and occasionally bending, squatting, climbing stairs, reaching up, kneeling, crawling, and frequently using her feet for foot controls. He testified that he did not believe Claimant could climb ladders, but that she had no restrictions as to grasping or fine manipulation. He stated that Claimant could occasionally lift up to twenty pounds and more frequently lift lesser weights. (WCJ's Findings of Fact Nos. 7-8.)

         Employer also submitted the testimony of Robert Smith, the author of the LMS/EPA. Mr. Smith testified that he had been a rehabilitation specialist since 1989 and that he had been approved pursuant to the applicable regulations[3] to conduct interviews for earning power under section 306(b) of the Act. Mr. Smith testified that he coordinated an initial interview with Claimant and identified reports from Dr. Chiavacci indicating that Claimant was capable of returning to sedentary to light-duty work. He noted Claimant's educational background, which included a high school diploma and some course work at Keystone Community College. He stated that Claimant also had training to become a licensed practical nurse (LPN), and once qualified as an LPN, she worked as a charge nurse and a private duty LPN. He testified that he performed a transferable skills analysis and calculated that work as an LPN would be a medium-duty position, and that with Claimant's background, she was capable of working in a semi-skilled to skilled area. Mr. Smith then identified six positions he believed were appropriate for Claimant. (WCJ's Finding of Fact No. 9.)

         The first was a position at A. Rifkin as a customer service representative, which had light duties and lifting up to 20 pounds rarely, along with periods of sitting. This was a full-time position paying between $10.00 and $13.00 per hour and an ideal candidate would have three years of customer service experience, communication and organization skills, multi-tasking ability, attention to detail, and computer and typing skills.

         The second was a full-time position at Telerex as an account representative, paying $9.00 per hour, which required a high school diploma and familiarity with computer programs. Helpful but not required was some customer service experience and an ability to type 35 words per minute.

         The third was a full-time position at Navient as a customer service specialist, which paid $11.00 per hour. The job was sedentary in nature and required one year of customer service experience. A college degree was preferred but not required, along with good communication, analytical, and computer skills.

         The fourth was a full-time position at Bank of America as a customer service associate, paying $10.50 per hour. The job was sedentary in nature, with prolonged sitting, and required no lifting above 10 pounds. The job required communication, organizational, and computer skills.

         The fifth was a position at Hampton Inn as a guest service agent, also fulltime, which paid $8.00 per hour. The job required a high school diploma and included on-the-job training. It was light-duty and was a front desk clerical job involving greeting guests, checking them in and out, and processing monetary transactions.

         Sixth and finally was another full-time position at Hampton Inn as a night auditor, paying $8.50 per hour. The job was sedentary in nature with no lifting above 20 pounds. The job required a high school diploma and a "customer service mentality" and it included on-the-job training. All six positions were approved by Dr. Chiavacci, who stated that Claimant was physically capable of performing them. Mr. Smith concluded that Claimant's weekly earning power was $320.00 to $420.00. (WCJ's Finding of Fact No. 9.)

         Claimant testified at a hearing before the WCJ on January 15, 2015. She explained that she was working as an LPN for Employer on October 2, 2010, when she injured her neck. She described ongoing problems since the work injury, with pain radiating from her neck to a midpoint in her back, as well as left arm pain and pain and numbness in both hands. She stated that the pain in her back takes her breath away and that her left shoulder is limited as far as being able to lift. She testified that she takes medications, including Oxycontin, Oxycodone, Flexeril, Lyrica, and Cymbalta, and that she has undergone injections to her arm, neck, and back. She noted that she has not returned to work but would be interested in working if she were physically able. She stated, however, that even light tasks, such as making dinner or folding clothes, cause her extreme pain, requiring her to take her prescription medications, which in turn makes her drowsy and feel the need to sleep. (WCJ's Findings of Fact Nos. 4-5.)

         Concerning the LMS/EPA, Claimant testified that she attempted to apply to all six positions, but that she was not offered any position. Regarding the customer service representative position with A. Rifkin, Claimant testified that, although she lacked a customer background and was unable to type 35 words per minute while talking on the telephone, she called the number listed in the LMS/EPA on May 28, 2014. She subsequently submitted an online application on June 4, 2014, and received an email the following day informing her that she would be contacted if more information was needed or to schedule an interview; however, she never received any follow up. With respect to the account representative position with Telerex, she testified that, beginning on May 28, 2014, she attempted to phone Telerex nine times, but the line was always busy. Regarding the customer service position with Navient, she testified that, although she felt she lacked the necessary skills for the position, she reached out to the employer on May 28, 2014, and spoke with a representative in human resources, but did not submit an application until June 2, 2014. Claimant stated that she received an email advising her that she was not hired around June 9, 2014. Regarding the customer sales position with Bank of America, Claimant testified that, on June 2, 2014, she tried to contact the designated contact person listed on the LMS/EPA, B.J. Berrettini, but was told there was no such person there. She stated that she gave her contact information but did not receive a call back. Id. Concerning the customer service and night auditor positions at Hampton Inn, Claimant testified she initially reached out on May 28, 2014, but was told that the contact person no longer worked there. The following day, a woman named Staci Borgia called her back and, according to Claimant, told her that the two positions were no longer available but that Hampton Inn did have two other positions available: breakfast host and housekeeper. (R.R. at 188a-91a, 203a-11a; WCJ's Finding of Fact No. 6.)[4]

         In support of her position, Claimant submitted the deposition testimony of her treating physician, Dean Mozeleski, M.D. Board-certified in physical and rehabilitation medicine, Dr. Mozeleski testified that he first treated Claimant in February of 2011. He testified that because the LMS/EPA was based upon an examination in September of 2013, he based his testimony on his own examination in August of 2013. Dr. Mozeleski testified that Claimant's condition, for which she took a variety of medications, had progressively worsened since he began treating her. Dr. Mozeleski testified that, as of August of 2013, Claimant's range of motion in her neck had decreased in both directions with rotation. He stated that she had maximum foraminal encroachment, which placed pressure on the neck nerves and radiated pain into her left arms. He noted that Claimant had a decreased range of motion in her left shoulder and numbness and tingling in her left arm, extending into the fourth and fifth digits of her left hand. He testified that he reviewed a cervical MRI from April 24, 2013, which indicated findings consistent with the C-5-7 two-level fusion. He stated that there was no evidence of disc herniation because it had been surgically corrected and that the MRI indicated some reversal of cervical lordosis but no intrinsic cord abnormality. (WCJ's Finding of Fact No. 10.)

         Dr. Mozeleski then testified about an October of 2013 evaluation of Claimant which indicated decreased rotation in her neck in both directions. He stated that Claimant also had left arm weakness and some numbness in both hands. He testified that he saw Claimant in December of 2013, and on April 2, 2014, and, because she had been suffering from these problems for some time, he labelled it "chronic neck and left shoulder pain, chronic cervical radiculitis, and chronic neck and upper thoracic scapular pain." (R.R. at 26a.) Claimant returned for an office visit on April 25, 2014, at which time Dr. Mozeleski released Claimant to light, sedentary work with restrictions because Claimant was only able to sit, stand, or walk for up to a combined total of two hours, with change in position as tolerated. According to Dr. Mozeleski, Claimant was able to lift no more than ten pounds, and then, only occasionally. He stated Claimant would be able to tolerate occasional bending, reaching, squatting, rotating, twisting, or kneeling, but no climbing. He believed Claimant was capable of performing simple grasping, pushing, pulling, and fine manipulation, but only for short periods. He did not believe she was capable of returning to work on a full-time basis. (WCJ's Finding of Fact No. 11.)

         Dr. Mozeleski testified that he examined Claimant most recently on November 12, 2014, and she presented with persistent neck and mid-back pain, pain into the left shoulder and mid-back into the left upper arm, and pain into her fingers and the inside part of her hand. As of that last appointment, Dr. Mozeleski testified that Claimant continued taking Oxycontin and Oxycodone. Regarding the six positions on the LMS/EPA, he stated that he reviewed each position and found that Claimant was not capable of performing any of the positions, noting that all were full-time. He concluded that these positions were not suitable because they included repetitive movements even when sitting, which Claimant could not perform. (WCJ's Finding of Fact No. 11.)

         Claimant also submitted the deposition testimony of Carmine Abraham, who testified that she was certified to perform vocational assessments under the Act. She stated that after Claimant's case was assigned to her in April of 2015, she reviewed materials from Mr. Smith, including the LMS/EPA, along with medical records and reports. Ms. Abraham stated that she was aware of Claimant's formal schooling, which included a high school diploma and some business courses at Keystone Community College, and that she believed the business courses Claimant had taken in 1978 and 1979 had no vocational relevance to Claimant's employability in 2014. She found that Claimant's LPN position was considered a medium-skilled position, requiring skills that were medical in nature. Ms. Abraham also found that Claimant did not have "a whole lot of skills in regard to working with computers or in regard to supervisor skills in regard to hiring or firing people or interviewing people." (R.R. at 77a; WCJ's Finding of Fact No. 12.)

         Ms. Abraham was able to personally meet with employees from four of the five companies identified in the LMS/EPA in March and April of 2015, and upon review, she rejected each of them. Ms. Abraham determined that, in her opinion, the A. Rifkin position would not have been appropriate for Claimant because she would have been unable to perform the job duties by typing with one finger at a time while looking at the keyboard. Ms. Abraham explained that, because Claimant would have to simultaneously attend to customers and provide them with the information they needed, the call would take too long. Additionally, based on Claimant's educational and vocational history, Ms. Abraham believed Claimant would not have been qualified for the position.

         With regard to the Telerex position, Ms. Abraham explained that the contact person listed on the LMS/EPA indicated that the position was in a call-center type of environment where employees make and receive calls. Ms. Abraham noted that the calls were very time sensitive and were monitored by supervisors. Additionally, she testified, Telerex was looking for a candidate with computer skills in programs such as Windows OS, Internet, Microsoft Word, and the like. Ms. Abraham concluded that this position would have ...

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