Fedchem, LLC, and The State Workers Insurance Fund, Petitioners
Workers' Compensation Appeal Board (Wescoe), Respondent
Argued: September 17, 2019
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A.
HANNAH LEAVITT, PRESIDENT JUDGE
LLC and The State Workers Insurance Fund (collectively,
Employer) petition for review of an adjudication of the
Workers' Compensation Appeal Board (Board) that denied
Employer's modification petition. The Board concluded
that Employer did not establish that Kirk Wescoe (Claimant)
had earning power and, thus, was not entitled to reduce
Claimant's disability benefits. The Board acknowledged
that the Workers' Compensation Judge (WCJ) failed to
address a conflict in the testimony of the vocational
experts, which would ordinarily require a remand. However,
because the WCJ credited Claimant's testimony that he did
not have the skills or experience to do the jobs identified
in Employer's labor market survey, the Board concluded
that the WCJ did not have to address the testimony of the
vocational experts. Employer asserts that the Board erred
because Claimant's subjective evaluation of his
vocational ability cannot be dispositive, and, further,
Claimant's belief was contradicted by the testimony of
the vocational experts. Employer argues it was incumbent upon
the WCJ to resolve all conflicts in testimony. We vacate and
began employment with Employer in 1985 as a general chemical
operator and supervisor. On September 8, 2011, while carrying
a 50-pound bag of chemicals, Claimant "entangled"
his foot in shrink wrap, which caused him to make a sudden
turn and injure his back. WCJ Decision at 3, Finding of Fact
No. 4; Reproduced Record at 372a (R.R.___). Claimant began
collecting disability compensation at the rate of $858 per
week pursuant to a Notice of Temporary Compensation payable
that later converted to a Notice of Compensation Payable
(NCP). In 2015, Claimant's NCP was amended to add an L4-5
disc herniation to his work injury.
August 18, 2016, Employer filed a modification petition
pursuant to Section 413(a) of the Workers' Compensation
Act (Act), 77 P.S. §772. Employer sought to modify
Claimant's disability benefits based upon its labor
market survey and earning power assessment. Claimant denied
the allegations in the petition, and the WCJ scheduled a
offered the medical testimony of Michael Okin, M.D., a
board-certified orthopedic surgeon who conducted an
independent medical examination (IME) of Claimant on January
20, 2016. He found that Claimant suffered from pre-existing
degenerative disc disease that was aggravated by his work
injury to his disc at L4-5. Dr. Okin opined that Claimant
should continue pain management treatment and not return to
his pre-injury job, which required lifting 50-pound bags.
However, Dr. Okin opined that Claimant could return to
light-duty work. Dr. Okin reviewed the four job
descriptions provided by Employer's vocational expert and
concluded that Claimant was physically capable of doing all
presented the testimony of Julie Stratton, a certified
vocational rehabilitation counselor, who was accepted as an
expert in vocational rehabilitation. On May 26, 2016,
Stratton did a vocational evaluation of Claimant. Stratton
reported that Claimant was 64 years old and held a high
school diploma as well as an "Associate's
diploma." Stratton Deposition, 1/26/2017, at 22; R.R.
91a. Claimant had served in the military for four years and
then worked as a plant manager and a chemical operator from
1977 to 1985. From 1985 to 2011, he worked for Employer.
Stratton determined that Claimant had transferable skills
that included operation control and monitoring; critical
thinking; quality control analysis; active listening;
judgment; and decision making.
found Claimant employable. Because Employer did not have any
light-duty jobs available, Stratton looked for open and
available positions that met the physical restrictions set by
Dr. Okin. She found positions vocationally suitable for
Claimant through "our job bank of positions" at
Hoover Rehabilitation Services, Inc., where Stratton worked.
Id. at 63; R.R. 132a. Stratton also did an internet
search for jobs within a 25 to 30- mile radius of
Claimant's home but found nothing suitable.
14, 2016, Stratton sent a letter to Claimant that identified
two positions: a dispatcher at Blue Ridge Communications and
a customer service position at PenTeleData. Both were
sedentary, entry-level positions that offered on- the-job
training. Stratton's letter stated that both employers
required an in-person application and instructed Claimant to
apply for both jobs by June 21, 2016.
20, 2016, Stratton sent a second letter to Claimant,
informing him that cashier positions were available with HMS
Host and A Pawn Plus. The position at HMS Host was light
duty, and the position at A Pawn Plus was sedentary. Both
were entry-level positions for which on-the-job training was
available. Stratton's letter advised Claimant that he
could complete the application for HMS Host online but had to
apply in person for the position at A Pawn Plus. Her letter
did not state an application deadline for either position.
The four jobs paid between $320 and $372.50 per week.
testified that she did not know whether Claimant had applied
for the positions identified in her letters of June 14, 2016,
and July 20, 2016.
testified. He described his job as a chemical operator as
loading chemical reactors, rotating stock, loading bulk
tankers, pipefitting and welding. He managed the two to three
employees that worked on his shift. His computer expertise
consisted of printing instructional materials. Claimant
testified that he did not interact with customers.
testified that on June 20, 2016, he applied for the two
positions identified in Stratton's letter of June 14,
2016. However, neither Blue Ridge nor PenTeleData offered him
a job. Claimant applied for the HMS Host cashier position
online, at his local library, but he did not get the job.
When he applied for the cashier position at A Pawn Plus, the
store manager asked if he was fluent in Spanish. Claimant did
not get the job. Claimant testified that he had no experience
working as a dispatcher, a customer service representative or
a cashier; he did not speak Spanish.
stated that his work injury continues to cause him pain. In
spite of physical therapy and a spinal block, his pain is so
great that sometimes he cannot leave the house. Claimant uses
a transcutaneous electrical nerve stimulation unit (TENS
Unit) throughout the day to ease the pain. Claimant doubted
that he had the physical ability to work, explaining "I
attempt things, I try things, and then I pay for it later.
I'm either medicating, stretching, or I have a TENS unit
where it gives me electric shock to the affected area to
relieve the pain." WCJ Hearing, Notes of Testimony
(N.T.), 2/1/2017, at 29-30; R.R. 225a-26a. Claimant testified
that he did not believe he had the skills or experience to do
any of the jobs Stratton identified. Nevertheless, he stated
that he would have tried the positions had he been
presented the testimony of Dennis L. Mohn, a certified
vocational rehabilitation counselor, accepted as an expert in
vocational rehabilitation. Mohn conducted a vocational assessment
of Claimant on June 16, 2016, and reviewed the labor market
survey done by Stratton.
time of Mohn's assessment, Claimant was 65 years old and
had spent the previous 26 years working for Employer, a
manufacturer of water sealants and ink gellants. Claimant
told Mohn that he could lift 20 pounds but could carry only
10 pounds; sit or stand five to 15 minutes at a time; walk a
quarter mile; and drive for about 90 minutes. Mohn stated
that Claimant "could only occasionally climb steps. He
couldn't bend or crawl or kneel. But he could
occasionally slightly squat to try to reach the floor."
Mohn Deposition, 3/23/2017, at 19; R.R. 246a. Mohn addressed
each of the four jobs identified by Stratton.
on his conversation with Blue Ridge Communications, Mohn
testified that the dispatcher job required proficiency with
Microsoft Office programs and the ability to work efficiently
in a fast-paced environment. Essentially, the dispatcher took
calls from customers with service needs and scheduled a visit
from a field technician. Mohn did not believe Claimant had
the necessary computer and customer service skills.
testified that the customer service job at PenTeleData
required prior experience and a working knowledge of
Microsoft Word, Excel and Windows. Mohn did not believe
Claimant was qualified for this job, but he ...