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Fedchem, LLC v. Workers' Compensation Appeal Board (Wescoe)

Commonwealth Court of Pennsylvania

November 18, 2019

Fedchem, LLC, and The State Workers Insurance Fund, Petitioners
v.
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. McCULLOUGH, Judge

          OPINION

          MARY HANNAH LEAVITT, PRESIDENT JUDGE

         Fedchem, 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 remand.

         Background

         Claimant 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.

         On August 18, 2016, Employer filed a modification petition pursuant to Section 413(a) of the Workers' Compensation Act (Act), 77 P.S. §772.[1] 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 hearing.

         Employer 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.[2] Dr. Okin reviewed the four job descriptions provided by Employer's vocational expert and concluded that Claimant was physically capable of doing all four jobs.

         Employer 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.

         Stratton 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.

         On June 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.

         On July 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.

         Stratton 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.

         Claimant 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.

         Claimant 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.

         Claimant 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 hired.[3]

         Claimant presented the testimony of Dennis L. Mohn, a certified vocational rehabilitation counselor, accepted as an expert in vocational rehabilitation.[4] Mohn conducted a vocational assessment of Claimant on June 16, 2016, and reviewed the labor market survey done by Stratton.

         At the 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.

         Based 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.

         Mohn 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 ...


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