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Smith v. Workers' Compensation Appeal Board (Supervalu Holdings PA, LLC)

Commonwealth Court of Pennsylvania

January 5, 2018

Dennis Smith, Petitioner
v.
Workers' Compensation Appeal Board (Supervalu Holdings PA, LLC), Respondent

          Argued: September 13, 2017

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE JOSEPH M. COSGROVE, Judge [1]

          OPINION

          ROBERT SIMPSON, JUDGE

         Dennis Smith (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) that affirmed an order of a Workers' Compensation Judge (WCJ) granting a modification petition filed by Claimant's employer, Supervalu Holdings PA, LLC (Employer). Based upon a labor market survey showing five available positions within Claimant's medical restrictions with an average pay of $400.56 per week, the WCJ modified Claimant's weekly benefits to the rate of $394.63. Claimant contends the Board erred in finding substantial evidence for the WCJ's modification of his benefits, and that the Board further erred in concluding that the WCJ properly applied the principles established by the Supreme Court in Phoenixville Hospital v. Workers' Compensation Appeal Board (Shoap), 81 A.3d 830 (Pa. 2013). Upon review, we affirm as modified by this opinion.

         I. Background

         In February 2011, Claimant sustained a work injury to his head and neck when a case of store products, weighing approximately eight or nine pounds, fell from a shelf above him and struck his head. A temporary notice of compensation payable, which later converted to a notice of compensation payable (NCP), described the accepted injuries as a cervical strain/sprain. Pursuant to the NCP, Claimant began receiving benefits at the rate of $661.67 per week based upon an average weekly wage (AWW) of $992.50.

         In November 2013, Employer filed a modification petition seeking to modify Claimant's benefits as of April 28, 2013. Employer's petition further alleged Claimant had an earning power of $440.00 per week, which would reduce Claimant's weekly benefit to $368.33. Claimant filed an answer denying the material allegations of Employer's modification petition. Employer also requested a supersedeas, which the WCJ denied.

         In addition, in March 2014 Employer filed a suspension petition alleging Claimant was offered a medical procedure highly likely to cure his disability and return him to gainful employment. Although the procedure had a low potential risk, Claimant nevertheless refused the procedure. Claimant filed a timely answer denying Employer's material allegations. Employer again requested a supersedeas, which the WCJ denied.

         During the WCJ's proceedings, Employer presented deposition testimony from Dr. Jeffrey A. Baum (Employer's Physician), a physician board certified in orthopedic surgery. Employer's Physician first treated Claimant for a work injury in July 2008 which resulted in numbness, tingling and pain in his upper left extremity. In December 2008, Employer's Physician performed a two-level cervical discectomy and fusion. Claimant did well following the surgery and returned to his forklift driver position. In April 2010, Employer's Physician discharged Claimant from his care.

         In June 2011, following his second work injury in February 2011, Claimant returned to Employer's Physician's care. Claimant provided a history of his new work injury and reported symptoms of pain and spasm in his neck. Employer's Physician continued to see Claimant over the next several months, during which time Claimant underwent physical therapy. Claimant continued to report some spasm in his neck, especially if he would repetitively extend his neck backward.

         In June 2012, Claimant returned to Employer's Physician's office and saw his partner, Dr. Smith (Partner Physician). At that time, Claimant had more pain and spasm in his neck. Claimant underwent a three-dimensional CT scan, which revealed that his earlier bone graft did not completely fuse the vertebral bodies. Partner Physician advised Claimant of the failure of the fusion and informed him that the standard treatment for a failed anterior fusion is to do a posterior segmental fusion. Employer's Physician testified that studies indicated an 80% chance that the proposed surgery would resolve Claimant's symptoms. Further, although Employer's Physician could not guarantee that Claimant could return to the pre-injury job following the proposed surgery, the doctor testified Claimant would be capable of performing some type of employment with restrictions.

         Employer's Physician further testified that in late May or early June of 2013, he was provided with job analyses for the following positions: dispatcher for the American Automobile Association (AAA); dispatcher with Vector Security; dispatcher with St. Moritz Security Services, Inc.; and, security guard with Am-Guard Security, Inc.

         Employer also submitted deposition testimony from a vocational rehabilitation counselor, Nikki Davies (Vocational Counselor). She testified that the Department of Labor and Industry approved her to conduct interviews and assess earning power under the Workers' Compensation Act[2] (Act). Vocational Counselor first reviewed information provided by Employer's Physician regarding Claimant's restrictions. Claimant could not lift over 25 pounds with no repetitive overhead lifting and no repetitive neck extensions.

         During an interview, Claimant provided Vocational Counselor with a history of his work injury and his employment. Prior to working for Employer, Claimant worked as a lot attendant for Kenny Ross Chevrolet. Utilizing Claimant's work history, educational background and work restrictions, Vocational Counselor performed a transferable skills analysis.

         Based upon her transferable skills analysis and her interview with Claimant, Vocational Counselor identified five open and available positions within Claimant's vocational and medical restrictions, and which were located within Claimant's geographic area. These positions included dispatcher at AAA; alarm dispatcher operator at Vector Security; dispatcher at St. Moritz Security Services, Inc.; and, two security guard positions with Am Guard Security, Inc.

         Vocational Counselor further testified that the weekly pay for the five positions ranged from $360.00 to $440.00 per week. This would equate to an AWW of $400.56.

         Before the WCJ, Claimant testified he worked for Employer for 27 years at different positions including forklift operator and loader. Claimant sustained his first work injury in 2008 and began treating with Employer's Physician, who performed cervical fusion surgery and placed hardware in Claimant's neck. Following surgery, Claimant returned to work as a lift operator.

         After being bumped for seniority reasons, Claimant began working at the selector position, where he sustained a work injury in February 2011. Claimant was helping a lift operator put cases on overhead shelves when a case slipped and hit him in the head. Following the incident, Employer's Physician removed him from work and prescribed therapy.

         In September 2011, Claimant returned to light duty work in the dairy warehouse. He worked in that position until May or June 2012. During that time, he continued to experience pain and spasms in his neck. Employer's Physician removed him from work in June 2012. Diagnostic studies revealed a non-union of the grafts in his cervical spine. Employer's Physician discussed possible surgery to address the non-union of the grafts. However, Claimant continued, Employer's Physician informed him that fixing the non-union would not make him any better. Further, Claimant testified Employer's Physician never told him there would be an 80% chance that he would have a pretty good resolution of his symptoms. Thus, Claimant testified he was afraid to undergo the proposed surgery, which would not enable him to return to his pre-injury job.

         Claimant also testified about meeting with Vocational Counselor and applying for the five positions she identified as being available for him. Claimant submitted a resume online to St. Moritz Security Services for the dispatcher position. However, St. Moritz never contacted him or offered him employment. Claimant further testified he never worked as a dispatcher.

         Claimant also submitted an application to Vector Security for the alarm dispatch position. However, Vector Security never contacted him or offered him employment. Claimant testified the position required moderate to advanced keyboarding skills, which he did not have.

         Claimant also contacted AAA about the dispatcher job and spoke to Liz Jackson in Human Resources. Jackson instructed Claimant to submit a resume, which he did. However, AAA never contacted him or offered him employment.

         In addition, Claimant contacted Am-Guard about the two security guard positions. Claimant spoke with a gentleman who instructed him to go to the Career Link Center in Youngwood and complete an application. Claimant completed the applications and was interviewed for the positions. However, Claimant received no further contact from Am-Guard, and Am-Guard never offered him employment.

         Claimant further testified he applied for numerous other positions on his own. However, nobody interviewed him or offered him employment.

         Ultimately, the WCJ accepted Vocational Counselor's testimony as credible and persuasive. WCJ's Op., 12/29/14, Finding of Fact (F.F.) No. 11. Although Claimant testified he applied for each of the five positions and was not hired, the WCJ found "there is nothing in the record to indicate that the five job positions were not open and available at the time of his application process, nor is there any evidence in the record to indicate that they were already filled, and did not exist." Id. Consequently, based on Vocational Counselor's testimony that the five positions equated to an AWW of $400.56, the WCJ reduced Claimant's AWW as follows: $992.50 - $400.56 = 591.94 x 66 2/3% = $394.63 weekly benefit rate, effective April 28, 2013. Id.

         In addition, the WCJ found, based on Employer's Physician's testimony, that the proposed posterior segmental fusion surgery would not decrease Claimant's disability or restore any of his earning power. F.F. No. 12. Therefore, the WCJ determined Claimant's reluctance to undergo the posterior segmental fusion did not amount to a refusal of reasonable medical treatment. Id.

         Consequently, the WCJ denied Employer's suspension petition. However, the WCJ granted Employer's modification petition and modified Claimant's weekly benefit rate to $394.63, effective April 28, 2013.

         Both parties appealed to the Board, which affirmed the WCJ's decision. In affirming the WCJ's grant of Employer's modification petition, the Board rejected Claimant's arguments that the positions were not within his vocational capabilities and geographic area. To that end, the Board noted Vocational Counselor's testimony that the five positions fell within Claimant's transferable skills analysis. Bd. Op., 4/19/16, at 10. The Board further observed that Vocational Counselor testified that for someone living where Claimant did in Lowber, Pennsylvania, Westmoreland County and Allegheny County would be considered normal geographic areas for finding employment. Id. at 11. In ...


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