C. Everson v. WCAB (Al-Mar RV) ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Cheryl Everson, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Al-Mar RV), : No. 1821 C.D. 2019
Respondent : Submitted: June 19, 2020
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: August 7, 2020
Cheryl Everson (Claimant) petitions for review of the November 14,
2019 order of the Workers’ Compensation Appeal Board (Board), which affirmed
the decision of the Workers’ Compensation Judge (WCJ) granting Claimant’s claim
and review petitions, denying Claimant’s penalty petition, and suspending
Claimant’s benefits. The Board, however, modified the WCJ’s decision to reflect a
suspension of Claimant’s benefits as of September 12, 2016,1 instead of May 17,
2017, as directed by the WCJ. We now affirm, as modified, the Board’s order.
1
The Board, in its opinion, clearly indicated an intent to suspend Claimant’s benefits as of
September 12, 2016, the date of an independent medical examination of Claimant conducted by
David Cooper, M.D., but inadvertently referenced September 16, 2016 as the date of suspension
in its order. As such, the Board’s order is modified to reflect September 12, 2016, as the date of
suspension.
The underlying facts of this case are not in dispute. Claimant worked
as an office manager for Al-Mar RV (Employer). Finding of Fact (F.F.) 3,
Reproduced Record (R.R.) at 185a. On February 26, 2015, Claimant fell at work
and sustained a fracture to her left knee. Id. On March 11, 2015, Employer issued
a notice of temporary compensation payable, describing Claimant’s injury as a left
knee fracture resulting from a slip and fall. F.F. 2, R.R. at 185a. On March 20,
2015, however, Employer issued a notice stopping temporary compensation and a
notice of workers’ compensation denial, alleging that Claimant had not suffered a
loss of wages as a result of her accepted work injury and that Claimant had taken
herself out of the workplace due to activities detrimental to Employer. Id. On March
23, 2015, Employer issued a “medical only” notice of compensation payable
accepting liability for medical treatment for Claimant’s work-related, left knee
injury. Id.
In May 2016, Claimant filed a claim petition against Employer seeking
full disability ongoing from February 26, 2015, together with the payment of medical
bills and counsel fees. F.F. 3, R.R. at 185a. Claimant also filed a review petition
seeking to expand the description of her work injury to include chondromalacia and
post-traumatic arthritis in her left knee, as well as a penalty petition due to
Employer’s alleged failure to pay her reasonable and necessary medical expenses.
F.F. 3, 11(c), R.R. at 185a, 192a. Employer filed answers to all of Claimant’s
petitions, admitting that Claimant did not return to work, although not due to her
work injury, and admitting that Claimant was entitled to payment for medical bills
related to her left knee fracture. F.F. 3, R.R. at 185a.
The WCJ conducted multiple hearings relating to Claimant’s petitions,
the first occurring on June 1, 2016. F.F. 4, R.R. at 185a. At this hearing, Claimant
2
described her job duties as Employer’s office manager, which included performing
inventories of Employer’s expansive recreational vehicle (RV) lot and parts
department, preparing payroll, reviewing bank statements, and lifting and carrying
boxes of documents and copy paper. F.F. 4(a), R.R. at 185a-86a; Notes of
Testimony (N.T.), 6/1/16, at 7-8. Claimant discussed her February 26, 2015 work
injury, indicating that she slipped on black ice, fell and shattered her left kneecap,
after which she was transported by ambulance to a local hospital. F.F. 4(c), R.R. at
186a; N.T., 6/1/16, at 9. Claimant eventually underwent surgery on March 10, 2016,
that required wiring to reconfigure her kneecap, followed by two months of physical
therapy.2 F.F. 4(d), R.R. at 186a; N.T., 6/1/16, at 10-11. Claimant rated her daily
pain level at 6 out of 10, with increased pain walking up and down stairs, as well as
occasional numbness that would shoot down her left knee and into her calf. F.F.
4(f), R.R. at 186a; N.T., 6/1/16, at 13-14. Claimant noted, however, that she was
not taking any pain medication at that time. F.F. 4(f), R.R. at 186a; N.T., 6/1/16, at
15.
On cross-examination, Claimant acknowledged that she had been
terminated by Employer shortly after her work injury because she was stealing
money, for which she had been criminally charged and pled guilty. F.F. 4(g), R.R.
at 187a; N.T., 6/1/16, at 19, 21. Claimant stated that Employer paid her regular
wages for two weeks after her work injury. F.F. 4(g), R.R. at 187a; N.T., 6/1/16, at
22.
The WCJ conducted another hearing on December 7, 2016. Counsel
for the parties stipulated at this hearing that Claimant had been incarcerated for two
2
Claimant noted that beginning on January 5, 2016, she worked for an eye doctor in
Hagerstown, Maryland, and described this job as less strenuous than her job with Employer. F.F.
4(e), R.R. at 186a; N.T., 6/1/16, at 12, 13.
3
months in 2016, followed by a seven-month period of house arrest.3 F.F. 5, R.R. at
187a; N.T., 12/7/16, at 9-11. Claimant detailed her work history following her
termination from Employer, noting that she obtained a job through a temporary
agency as an accounts receivable clerk for a trucking company from June 2015 to
September 2015, worked as a customer service manager at a Christmas Tree Shop
store from September 2015 to January 2016, worked for an eye doctor from January
2016 to June 2016, and, as of the date of the hearing, had been working at a sub shop
making sandwiches for 36 to 46 hours per week since September of 2016. F.F. 5,
R.R. at 187a; N.T., 12/7/16, at 12-17.
Claimant was cross-examined at a further hearing held on March 22,
2017. Claimant indicated that, as of the date of the hearing, she had been working
part-time for the sub shop and had also started a desk job at a biorepository.4 F.F. 6,
R.R. at 187a; N.T., 3/22/17, at 21-22. Claimant noted that she underwent a second
surgery on her left knee in June 2016, after which she was released to return to light-
duty work. F.F. 6, R.R. at 187a; N.T., 3/22/17, at 24. After reiterating her pre-work
injury job duties with Employer, Claimant indicated her belief that she still could
not perform the full range of tasks she previously performed, but could likely
perform the job with accommodations. F.F. 6, R.R. at 188a; N.T., 3/22/17, at 26-
29, 39.
Employer then presented the testimony of Joey Mouse (Mouse), who
worked in human resources for Employer. F.F. 7(a), R.R. at 188a; N.T., 3/22/17, at
41. Mouse testified that she had been performing a job similar to Claimant’s for the
3
Claimant stated that she was released from incarceration in August 2016. N.T., 12/7/16,
at 12.
4
Claimant explained that the biorepository stores blood samples from drug trials. N.T.,
3/22/17, at 22.
4
last two and a half years and described her job as primarily a desk job with no regular
physical requirements, noting that any physical aspects such as moving boxes,
carrying paperwork, or retrieving records could be performed by others. F.F. 7(a),
R.R. at 188a; N.T., 3/22/17, at 41-46. Mouse also testified to her understanding that
Claimant was no longer employed by Employer due to embezzlement, which Mouse
herself discovered toward the end of February 2015 or beginning of March 2015.
F.F. 7(b), R.R. at 188a; N.T., 3/22/17, at 46. On cross-examination, Mouse admitted
that Claimant occasionally sold RVs, which included showing RVs to customers.
F.F. 7(c), R.R. at 188a; N.T., 3/22/17, at 49. Mouse also acknowledged that
Claimant was paid for two weeks after her work injury. F.F. 7(c), R.R. at 188a;
N.T., 3/22/17, at 52.
Employer also presented the testimony of Terri Schmidt (Schmidt),
who worked under Claimant since 2012 and subsequently became Employer’s office
and accounting manager. F.F. 8(a), R.R. at 188a; N.T., 3/22/17, at 53. Schmidt
stated that she is currently performing the same job duties Claimant performed prior
to the work injury and termination, and described the job as a desk job in a sitting
position. F.F. 8(a), R.R. at 189a; N.T., 3/22/17, at 54. Similar to Mouse’s testimony,
Schmidt indicated that other employees assist her with any incidental physical
aspects of the job. F.F. 8(a), R.R. at 189a; N.T., 3/22/17, at 55-56. On cross-
examination, Schmidt acknowledged that she did participate in sales while working
under Claimant, but explained that Claimant was not required to sell RVs as part of
her job and did not receive commissions. F.F. 8(c), R.R. at 189a; N.T., 3/22/17, at
64, 70-71. Schmidt also testified that she was at work the day Claimant fell and was
taken to the hospital, and that she reported Claimant’s accident to Employer’s
insurer. F.F. 8(d), R.R. at 189a; N.T., 3/22/17, at 65.
5
In support of her petitions, Claimant presented the deposition testimony
of Bruce H. Levin, M.D., who performed an independent medical examination of
Claimant on December 6, 2016, at the request of her counsel. F.F. 9(a), R.R. at 189a;
N.T., 3/1/17, at 10, Dep. Ex. 2 – December 6, 2016 Report of Dr. Levin. Dr. Levin
testified that he was aware of Claimant’s work injury and subsequent treatment,
including her surgeries, and that she presented with continuing knee pain and left
knee weakness which resulted in trouble walking. F.F. 9(a), R.R. at 190a; N.T.,
3/1/17, at 18. He noted that Claimant developed chondromalacia and arthritis
following her surgeries. F.F. 9(c), R.R. at 190a; N.T., 3/1/17, at 17. He indicated
that Claimant could not perform the duties of her pre-injury job, as the job required
walking, bending, and carrying, but could perform a sedentary position. F.F. 9(d),
R.R. at 190a; N.T., 3/1/17, at 25. He specifically disagreed with the opinion of
Employer’s medical expert that Claimant could return to light-duty work. F.F. 9(d),
R.R. at 190a; N.T., 3/1/17, at 29. On cross-examination, Dr. Levin explained that
chondromalacia could be degenerative or traumatic, and that Claimant’s condition
resulted from her traumatic work injury. F.F. 9(e), R.R. at 190a-91a; N.T., 3/1/17,
at 48-51.
In opposition to Claimant’s petitions, Employer presented the
deposition testimony of David R. Cooper, M.D., who performed an independent
medical examination of Claimant on September 12, 2016. F.F. 10(a), R.R. at 191a;
N.T., 5/19/17, at 8. Dr. Cooper testified that he was aware of Claimant’s work injury
and subsequent treatment, including her surgeries, and her ongoing complaints of
left knee pain and weakness. F.F. 10(a), R.R. at 191a; N.T., 5/19/17, at 8-9. Upon
physical examination, Dr. Cooper observed some atrophy in Claimant’s left thigh,
swelling in her left knee, and some limitation in range of motion. F.F. 10(a), R.R.
6
at 191a; N.T., 5/19/17, at 9. He described Claimant’s operative report as very
comprehensive and detailing a fracture of her left kneecap with significant
displacement of the fragments. F.F. 10(a), R.R. at 191a; N.T., 5/19/17, at 11. He
explained that Claimant was not fully recovered and suffered from post-traumatic
arthritis, thereby rendering her without a fully functional knee. F.F. 10(b), R.R. at
191a; N.T., 5/19/17, at 11-12. Dr. Cooper indicated that he would place restrictions
on Claimant in the nature of light-duty work, namely limitations on standing and
walking, no lifting greater than 20 pounds, and no squatting or kneeling. F.F. 10(b),
R.R. at 191a; N.T., 5/19/17, at 12. Dr. Cooper also described these restrictions as
permanent. Id.
Dr. Cooper noted that he reviewed the testimony of Mouse and Schmidt
from the March 22, 2017 hearing, and given their description of Claimant’s position,
opined that Claimant could perform the same. F.F. 10(b), R.R. at 192a; N.T.,
5/19/17, at 13. Nonetheless, he acknowledged that Claimant would not be able to
perform the duties of the pre-injury job as described by Claimant, because such
duties would be greater than the light-duty restrictions he placed on her. Id.
By decision and order circulated on January 22, 2018, the WCJ granted
Claimant’s claim and review petitions, but only awarded her benefits for the closed
period from February 26, 2015, to May 17, 2017, the date of Dr. Cooper’s
deposition.5 WCJ’s Order, R.R. at 199a. The WCJ suspended Claimant’s benefits
during the period of her brief incarceration in 2016 and as of May 17, 2017, due to
the WCJ’s finding that Claimant’s “residual work ability would permit her to
perform job duties consistent with those of her successors” and because Claimant’s
loss of earnings was no longer the result of her work injury but, instead, the result of
5
This appears to be a typographical error, as Dr. Cooper’s deposition occurred on May 19,
2017.
7
her discharge from employment with Employer. See WCJ’s Analysis, R.R. at 196a.
The WCJ further denied Claimant’s penalty petition and request for attorney fees,
but directed Employer to continue to pay Claimant’s causally related medical
expenses.
Both Claimant and Employer appealed to the Board, which affirmed
the WCJ’s decision and order but modified the same to reflect a suspension of
benefits as of September 12, 2016,6 the date of Dr. Cooper’s independent medical
examination of Claimant. Board’s Order, R.R. at 215a. The Board noted that “[i]n
other contexts[,] changes in a claimant’s benefits status, such as a termination on the
basis of full recovery, are effective as of the date of the examination.” Board’s
Decision at 10-11, R.R. at 211a-12a. Claimant thereafter filed a petition for review
with this Court solely challenging the Board’s modification and requesting that the
closed period cease on May 17, 2017, as directed by the WCJ. Petition for Review
at 2.
Before this Court,7 Claimant argues that the Board erred as a matter of
law and abused its discretion in modifying the date of suspension of her benefits.
We disagree.
Section 413(a) of the Workers’ Compensation Act (Act)8 provides, in
pertinent part, as follows:
6
See footnote 1, supra, regarding date of suspension.
7
“This Court’s review in workers’ compensation appeals is limited to determining whether
necessary findings of fact are supported by substantial evidence, whether an error of law was
committed, or whether constitutional rights were violated.” Whitfield v. Workers’ Comp. Appeal
Bd. (Tenet Health Sys. Hahnemann LLC), 188 A.3d 599, 605 n.6 (Pa. Cmwlth. 2018); see also
Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.
8
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
8
A workers’ compensation judge designated by the
department may, at any time, modify, reinstate, suspend,
or terminate a notice of compensation payable, an original
or supplemental agreement or an award of the department
or its workers’ compensation judge, upon petition filed by
either party with the department, upon proof that the
disability of an injured employe has increased, decreased,
recurred, or has temporarily or finally ceased, or that the
status of any dependent has changed. Such modification,
reinstatement, suspension, or termination shall be made as
of the date upon which it is shown that the disability of the
injured employe has increased, decreased, recurred, or has
temporarily or finally ceased, or upon which it is shown
that the status of any dependent has changed. . . .
77 P.S. § 772. Under the Act, “the term ‘disability’ is synonymous with loss of
earning power.” Donahay v. Workers’ Comp. Appeal Bd. (Skills of Cent. PA, Inc.),
109 A.3d 787, 792 (Pa. Cmwlth. 2015) (citation omitted). Thus, “[i]f the reduction
in earnings is not tied to a loss of earning power attributable to the work injury, no
disability benefits are due.” Id. at 793.
In the present case, while both Claimant’s medical expert, Dr. Levin,
and Employer’s medical expert, Dr. Cooper, agreed that Claimant continues to suffer
residual effects directly related to her original work injury and would be subject to
permanent physical restrictions, Claimant does not dispute that she was terminated
from her employment shortly after her work injury for theft of funds from Employer.
Thus, the WCJ properly limited Claimant’s award of benefits to a closed time period
and directed that said benefits be suspended. See, e.g., Harvey v. Workers’ Comp.
Appeal Bd. (Monongahela Valley Hosp.), 983 A.2d 1254, 12 (Pa. Cmwlth. 2009)
(holding that the Board did not err in considering a claimant’s pre-injury misconduct,
which resulted in the claimant’s termination, in affirming a WCJ’s modification of
benefits); Reyes v. Workers’ Comp. Appeal Bd. (AMTEC), 967 A.2d 1071 (Pa.
Cmwlth. 2009) (holding that the Board did not err in affirming the denial of a claim
9
petition where the employer immediately terminated the claimant for pre-accident
misconduct once the employer learned of the misconduct).9
A question remains as to the proper date of suspension. The WCJ
suspended Claimant’s benefits as of May 17, 2017, the date of Dr. Cooper’s
deposition. However, the Board modified the suspension date to September 12,
2016, the date of Dr. Cooper’s independent medical examination of Claimant. We
find no error in this modification.
Claimant devotes a substantial portion of her brief arguing that the
Board, in modifying the date of suspension of her benefits, usurped the role of the
WCJ by reweighing the evidence and rendering its own credibility findings. The
Board took no such action. The WCJ credited the testimony of Dr. Cooper, and the
Board’s decision neither disturbs this credibility determination nor reweighs the
evidence presented before the WCJ. The Board merely relied on Dr. Cooper’s
credible testimony as requiring an earlier date of suspension of Claimant’s benefits
than that directed by the WCJ.
During his deposition, Dr. Cooper opined that, as of September 12,
2016, the date of his independent medical examination of Claimant, she could only
perform light-duty work within certain physical limitations/restrictions. See N.T.,
5/19/17, at 12. He also specifically opined that given the job duties as described by
Mouse and Schmidt, who were performing Claimant’s job, Claimant could perform
the same. See N.T., 5/19/17, at 13. In other words, Dr. Cooper opined that the duties
9
While these cases highlight the importance of the timeframe of when the claimants’
misconduct was discovered by their respective employers in conjunction with the applicable
burdens of proof in awarding or modifying benefits, such timeframe is not relevant herein as
neither Claimant nor Employer appealed the Board’s affirmance of the WCJ’s award of benefits
for a closed period. As noted above, Claimant’s petition for review was limited to her argument
that the Board erred in modifying the date of suspension of her benefits.
10
of Claimant’s pre-injury job fell within the restrictions he imposed upon Claimant.
Moreover, Claimant herself acknowledged that she could likely perform her pre-
injury job with the types of accommodations described by Mouse and Schmidt, see
N.T., 3/22/17, at 39, if not for her termination from employment. A suspension of
Claimant’s benefits was, thus, appropriate as of the date of Dr. Cooper’s independent
medical examination of Claimant. We note, as did the Board, that in other contexts
involving a change in a claimant’s benefit status, the date of the medical examination
is determinative. See, e.g., Colagreco v. Workers’ Comp. Appeal Bd. (Vanguard
Grp. Inc.), ___ A.3d ___ (Pa. Cmwlth., No. 788 C.D. 2019, filed May 14, 2020)
(affirming termination of benefits as of date of independent medical examination);
Michel v. Workers’ Comp. Appeal Bd. (U.S. Steel Corp.), 966 A.2d 643 (Pa. Cmwlth.
2009) (same).
Accordingly, the order of the Board is affirmed, as modified to reflect
September 12, 2016 as the date of suspension of benefits.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Cheryl Everson, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Al-Mar RV), : No. 1821 C.D. 2019
Respondent :
ORDER
AND NOW, this 7th day of August, 2020, the November 14, 2019 order
of the Workers’ Compensation Appeal Board is hereby AFFIRMED, as modified,
to discontinue benefits as of September 12, 2016.
__________________________________
CHRISTINE FIZZANO CANNON, Judge