Here is an example:
Commonwealth Of Pennsylvania Department Of Labor And Industry Bureau Of Workers’ Compensation
INJURED WORKER : WCAIS NO. 3671809
: MODIFICATION PETITION
: WCJ BRIAN HEMAK
DISH NETWORK, :
HEARINGS HELD: December 17, 2013 (Cancelled)
January 3, 2014
January 28, 2014
April 29, 2014
CLAIMANT’S WITNESSES: Claimant
DEFENDANT’S WITNESSES: Robert Mauthe, M.D.
APPEARANCES: Ronald L. Calhoon, Esq.
2411 North Front Street
Harrisburg, PA 17110
Counsel for Claimant
Alysia Hudock, Esq.
1245 S. Cedar Crest Blvd.
Allentown, PA 18103
Counsel for Defendant
BUREAU’S B-1 October 18, 2011 Decision
CLAIMANT’S: CS-1 Claimant’s Affidavit
CS-2 Appeal Board Decision
C-1 Fee Agreement
C-2 Class Schedule
C-3 Costs of Litigation totaling $789.85
C-4 Itemization of Attorney Fees (attached)
C-5 Child Support Lien Affidavit and Printout
DEFENDANT’S: DS-1 Notice of Compensation Payable
DS-2 Vocational Packet
DS-3 Job Analysis
D-1 Deposition Transcript of Dr. Robert Mauthe
D-2 Deposition Transcript of Dawn Eberle
D-3 Preservation of Objections – Dawn Eberle
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF LABOR AND INDUSTRY
BUREAU OF WORKERS’ COMPENSATION
INJURED WORKER : WCAIS NO. 3671809
: MODIFICATION PETITION
: WCJ BRIAN HEMAK
DISH NETWORK, :
CLAIMANT’S PROPOSED FINDINGS OF FACT
1. On or about November 8, 2013, Defendant filed a Petition to Modify/Suspend Compensation Benefits as of October 29, 2013 due to work being generally available, Claimant being capable of performing modified work within the restrictions of Dr. Mauthe, and as per a labor market survey. Supersedeas was requested and denied by decision dated January 30, 2014.
2. This Modification Petition was assigned to the Honorable Brian Hemak on or about November 12, 2013.
3. On or about November 15, 2013, Claimant filed an Answer to Defendant’s Modification Petition denying all allegations. Claimant requested costs and attorney fees for unreasonable contest.
4. By Decision dated October 18, 2011, a Stipulation was approved that amended the description of injury to include peroneal neuropraxia, torn lateral meniscus, and depression. (B-1)
5. Claimant is 31 years old, married and has 3 children, with one on the way. (H.T. of 4/29/14, p. 9)
6. Claimant was employed as a satellite technician by Dish Network for a year and a half prior to his work injury. His physical job duties included carrying equipment, satellite dishes, hauling and moving ladders, crawling in and out of crawlspaces, and basement work. (Id.)
7. Prior to working for Dish Network, Claimant worked for several years as a carpenter, performing manual labor and all aspects of construction. (Id., p. 9-10)
8. On April 3, 2010, Claimant was installing a satellite dish and fell over 20 feet onto his left leg, resulting in a severe tibia and fibia fracture. As a result, Claimant underwent four (4) surgeries. The first two (2) involved external fixation of the left tibia and fibia; the third was an internal fixation of the tibia and fibia; and the fourth was a bone graft at the fracture site. (Id., p. 10) He has received total disability benefits since the work injury. (Id., p. 14)
9. Claimant testified that currently he experiences constant, moderate pain, rating it as a 5 out of 10 most days, with some days the pain becoming worse. Claimant also experiences neuropathy or pain and tingling in the left, big toe; constant pain above the left ankle where the most damage to the bone was sustained; after walking more than 20 minutes he will develop pain in the left side of his knee; and after sitting or walking for a long period of time he will develop low back and hip symptoms. (Id., p. 10-11)
10. Claimant’s April 3, 2010 work injury also includes depression. (Id., p. 11) Claimant explained that he always feels a sense of impending danger, along with anxiety, the inability to voice his opinion or articulate things correctly, nervousness and becoming withdrawn from conversation. Claimant never had these symptoms prior to the work injury. Workers’ compensation has paid for his monthly psychological treatments, except for the last five (5). (Id., p. 11-12)
11. Claimant testified he can stand for 20 minutes. He uses a cane, and when using that or a cart at the store, he can stand for 30 minutes. Then he needs to sit down and take a break. He recently has begun shifting his weight to the right side and leaning on the cart if he tries to stand a little longer. (Id., p. 12) Claimant did not have these problems before the work injury. (Id., p. 14)
12. Claimant testified that he can sit for approximately an hour, but begins developing a sore, throbbing pain after 30 minutes, beginning in his left hip and shooting down to his left knee. From his hip to left knee will ache terribly. If he sits for longer than 40 minutes, his left leg will fall asleep. For example, if he drives far, his leg will go numb and he will have to pull over and rest. Also, Claimant recently attended the movies with his children, and had to get up several times, approximately every 40 minutes, and go out to the lobby. (Id., p. 12-14) Claimant did not have these problems before the work injury. (Id., p. 14)
13. Claimant’s current medications include Norco for pain, Cymbalta for depression, Celebrex for arthritis and joint pain, and Lyrica for nerve pain. (Id.)
14. Claimant enrolled at Penn State College and began classes on August 26, 2013. In the Fall 2013 semester, Claimant had classes on Monday, Wednesday and Friday from 10:00 a.m. to 10:50 p.m., 11:00 a.m. to 11:50 a.m. and 1:00 p.m. to 1:50 p.m. He has classes in the Spring 2014 semester on Mondays and Wednesdays from 9:00 a.m. to 9:50 and 1:00 p.m. to 2:50 p.m.; Tuesdays from 8:00 a.m. to 9:50 a.m. and 10:00 a.m. to 11:50 a.m.; and Tuesdays and Thursdays from 1:10 p.m. to 2:25 p.m. (Id., p. 14-15; C-2) The classes are in a classroom, not online. (Id., p. 16) Claimant hopes to achieve an Associate’s Degree in Physical Therapy Assistant and graduate in May 2015, with Boards in August or October of 2015. (Id., p. 17-18)
15. Claimant hopes to work in an outpatient setting because the physical demands are less, as most patients can walk themselves, there are other aides available for assistance, and there is also a mechanical lift. If the physical therapy assistant ob demands are too rigorous, Claimant will seek an administrator position or continue his education to get into the education portion of a physical therapy program. (Id., p. 18)
16. At the time of his testimony, Claimant is still in school. The longest Claimant sits at class is 50 minutes. He has one lab which is 2 hours, however, Claimant can take a break as needed and lie down, get up, or go into the hall to stretch his leg. (Id., p. 18-19) The lab is hands-on, but Claimant uses a mechanical lift to transfer patients, which only requires minimal exertion and lifting of less than 20 lbs. (Id., p. 29-30). At the lab, Claimant has a mat to use if he needs to lie down. The class sits on the mat at their desks. He lies down approximately every other session. (Id., p. 34-35)
17. Claimant enrolled at Penn State because he realized he was not going to be able to return to work as a satellite technician or to his family’s construction company. (Id., p. 16) Claimant pays for college himself, through financial aid and student loans. (Id., p. 17)
18. Claimant testified that he is hoping to be able to perform most of the physical therapy assistant duties. He is concerned about transferring patients by himself as he has limits and cannot lift like he used too. (Id., p. 36)
19. Claimant testified that per Google Maps, the USCB Corp. job is 56 miles from his house, one way. The Commonwealth Financial job was 51.3 miles one way, the Peace job was 42 miles approximately one way, and the Sundance job was approximately 15 miles one way. (Id., p. 19-20) Claimant feels he would be able to drive the 15 miles to Sundance, but the remaining jobs would aggravate his condition, causing him to be in pain before work and affect his job performance. (Id., p. 20)
20. The sitting requirements in the above jobs are as follows:
a. USCB – frequent to continuous
b. Commonwealth Financial – up to 4 hours
c. Peace – up to 4 hours
d. Sundance – up to 4 hours
e. Research American – continuous
Claimant testified that sitting the above lengths of time would cause problems and bother his leg dramatically. He does not feel he can sit for that long. He would need accommodations, such as being able to get up every half-hour and stretch and take a 15 minute break. (Id., p. 20-21) The job descriptions do not indicate whether Claimant can change positions or take breaks as needed, or whether any job modifications will be made.
21. While at home, Claimant stays on the ground floor as he has trouble with stairs. He can lie down when he needs to, whenever his leg bothers him. However, when his 1 year old is home, he will just sit on the floor with his leg stretched out rather than stand or hold the child. (Id., p. 21)
22. Defendant presented the testimony of Robert Mauthe, M.D. Dr. Mauthe first performed an IME of Claimant on July 11, 2012. Claimant reported falling approximately 10-15 feet off a ladder on April 3, 2010, sustaining a fairly severe distal tibial and fibular fracture. An external fixator was attempted, but Claimant ultimately had to undergo internal fixation with bone grafting. Claimant also experienced left knee pain, and an EMG revealed a nerve injury and torn meniscus. (Mauthe Depo., p. 5-7)
23. Claimant’s treatment included physical therapy; treatment by Dr. Kline, a physiatrist; home exercises; and use of a cane on his right due to the left ankle. Claimant reported left ankle swelling and right knee pain, worse with use. (Id., p. 8-9)
24. Physical examination revealed a consistent left leg limp; left leg atrophy consistent with an injury and little use; loss of range of motion of the left ankle; left ankle swelling; and his left leg was shorter than the right. There was no symptom magnification. Dr. Mauthe explained that Claimant did not fully recover from the surgery and had residuals, which is not unusual with such a bad fracture and is consistent with same. (Id., p. 9-11)
25. Dr. Mauthe opined that as a result of the April 3, 2010 work injury, Claimant sustained a fracture of the left tibia and fibula resulting in an open reduction and internal fixation; that Claimant continued to have a residual functional impairment as a result of the injury; and that Claimant also sustained a left peroneal nerve injury and a left lateral knee meniscus tear. Dr. Mauthe recommended rehab. (Id., p. 11) Dr. Mauthe did not address Claimant’s work-related depression. (Id., p. 25)
26. Dr. Mauthe further opined that as of July of 2012, Claimant’s low back and hip complaints are due to the left leg limp. He felt Claimant was not fully recovered and imposed restrictions of sedentary work; driving 1-4 hours; standing/walking for less than 1 hour; lifting 10 lbs., no use of the left foot for any operations or foot control; and no sitting limitations. (Id., p. 12-13) A Notice of Ability to Return to Work was issued on August 3, 2012. (Depo. Exh. 2)
27. Dr. Mauthe performed a second IME of Claimant in May of 2013. Claimant reported undergoing hardware removal from his ankle and wearing arch supports. (Id., p. 13)
28. Physical examination in May of 2013 revealed no significant changes from the prior exam and was virtually identical. Dr. Mauthe’s diagnoses remained virtually identical also, except that his left knee exam was normal. Restrictions remained essentially unchanged, except Claimant’s driving was no longer restricted but for using a clutch. Claimant could stand or walk for less than 1 hour. (Id., p. 15-17) Claimant did not drive to the IME. (Depo. Exh. 3)
29. Dr. Mauthe felt there was no medical basis for Claimant’s inability to sit or need to lie down. (Id., p. 17-18) Dr. Mauthe believes that Claimant cannot sit for longer than 1-2 hours because it makes his back hurt. He does not disbelieve Claimant. (Id., p. 20-21) Dr. Mauthe did not order a Functional Capacity Evaluation to help determine Claimant’s capabilities, as it would not be appropriate for him to recommend. (Id., p. 22-23)
30. Dr. Mauthe opined that Claimant is capable of performing the jobs identified by Genex, assuming they are described in an accurate fashion. (Id., p. 19-20)
31. Defendant presented the testimony of Dawn Eberle, a vocational counselor for Genex. Ms. Eberle believes her ethical obligation is to both the disabled worker and the insurance company paying her bill. She has never testified as a vocational counselor before the Social Security Administration, the Court of Common Pleas in a personal injury matter, in a federal Workers’ Compensation case, or on behalf of a disabled person. (Depo. of Dawn Eberle, p. 6-7)
32. Ms. Eberle utilized Dr. Mauthe’s July 11, 2012 restrictions of sedentary work in conducting her vocational assessment. Sedentary work is primarily a sitting position, with lifting no more than 10 lbs. She also received Dr. Mauthe’s May 30, 2013 re-evaluation report. (Id., p. 7-8)
33. Ms. Eberle testified that she contacted Employer prior to conducting a vocational meeting, who had no work available. (Id., p. 9)
34. A vocational meeting was conducted on October 25, 2012. Claimant reported the details of the work injury and described symptoms of moderate, constant pain of the left lower leg, 5 out of 10 and sometimes worse. Claimant further indicated decreased range of motion; a diagnosis of peripheral neuropathy with nerve pain and numbness on the right side of his left foot; and a diagnosis of depression with symptoms of gloominess and anxiety. (Id., p. 9-10) Claimant further reported ADL’s of some household activities and light clean-up, with his wife performing the cooking, laundry and carrying anything heavy. Claimant indicated he could only drive short distances and uses a cane when outside. (Id., p. 12)
35. During the interview, Claimant also reported depression and anxiety treatment once a month with a psychologist. (Id., p. 25) Claimant also reported that his left knee and hip will have pain and his left hip will fall asleep with sitting; his left knee aches; and that he uses a cane for activities such as shopping. (Id., p. 26).
36. Ms. Eberle did not contact either of Claimant’s treating physicians to ascertain their work restrictions, as she was instructed by the insurer to only use Dr. Mauthe’s restrictions. (Id., p. 25-26)
37. Claimant’s past employment history consisted of working for a little over a year for Employer as a field service representative, along with construction and laborer work. (Id., p. 13)
38. Ms. Eberle performed a transferrable skills analysis, and felt Claimant was capable of performing assembly positions, inspecting positions and work as a solderer. (Id., p. 14-15) However, if these positions are not available when conducting the Labor Market Survey, Ms. Eberle looks for basic, entry level positions that do not require much training. (Id., p. 15) Ms. Eberle did not use a VDare analysis. (Id., p. 30)
39. From February 28, 2013 through September 3, 2013, Ms. Eberle identified five (5) positions for a Labor Market Survey, which was dated October 29, 2013. (Id., p. 15-18). Ms. Eberle agreed that it was a year between the initial case evaluation and issuance of the Labor Market Survey. During this time, she did not attempt to obtain updates regarding Claimant’s circumstances or position, and no such information was provided to her. (Id., p. 26)
40. The first position identified in the Labor Market Survey was with USCB as a full-time collector located in Archbald, PA, paying $10.00 per hour. It was Ms. Eberle’s understanding that training would be provided. The position is sedentary and requires contacting individuals regarding delinquent accounts. (Id., p. 19-20) The position was identified on February 28, 2013 but Ms. Eberle is not sure how long it was actually available. She agreed it could have been filled by March 1, 2013. (Id., p. 27-28) The sitting requirements were up to 4 hours at one time, frequently and continuously throughout the day. The job description indicates that no job modifications are needed. (Mauthe Depo. Exh. 4) Your Honor finds that the position is outside of Claimant’s geographical area, was not open and available to Claimant at the time the Labor Market Survey was issued, cannot be performed by Claimant due to his work injury, and is not vocationally suitable.
41. The second position was with Commonwealth Financial Systems as a collector, identified in April of 2013. The position is also sedentary, part-time 20 – 34 hours per week, paying $8.50 per hour. (Id., p. 20) The position was identified on April 25, 2013, but likewise Ms. Eberle is not sure how long it was actually available. It could have been filled on April 25, 2013. (Id., p. 28) The sitting requirements were 4 hours at one time, frequently and continuously throughout the day, with walking only minutes and incidentally. The job description indicates that no job modifications are needed. (Mauthe Depo. Exh. 4) Your Honor finds that the position is outside of Claimant’s geographical area, was not open and available to Claimant at the time the Labor Market Survey was issued, cannot be performed by Claimant due to his work injury, and is not vocationally suitable.
42. The third position was with P.E.A.C.E., Inc. as a full time telemarketer, working 20 hours per week and earning between $8.00 and $9.00 per hour. The position was sedentary. (Id., p. 20-21) The position was identified on July 25, 2013, and Ms. Eberle is not aware when the position was filled. She agreed it could have been filled the next day. (Id., p. 29) The sitting requirements were up to 4 hours at one time and per day. The job description indicates that no job modifications are needed. (Mauthe Depo. Exh. 4) Your Honor finds that the position is outside of Claimant’s geographical area, was not open and available to Claimant at the time the Labor Market Survey was issued, cannot be performed by Claimant due to his work injury, and is not vocationally suitable.
43. The fourth position was with Sundance Vacations as a telephone service representative, part-time 20 – 25 hours per week, earning $11.00 per hour. The position was sedentary. (Id., p. 21-22) The position was identified on August 15, 2013, and Ms. Eberle was not aware when the position was filled, it could have been the next day. (Id., p. 29) The sitting requirements were up to 4 hours at one time, 4-5 hours per day. The job description indicates that no job modifications are needed. (Mauthe Depo. Exh. 4) Your Honor finds that the position is outside of Claimant’s geographical area, was not open and available to Claimant at the time the Labor Market Survey was issued, cannot be performed by Claimant due to his work injury, and is not vocationally suitable.
44. The fifth position was with Research America in customer service, working approximately 33 hours per week, earning between $7.65 and $8.15 per hour. (Id., p. 22) The position was identified on September 3, 2013, and Ms. Eberle is not sure when the position was filled. It could have been filled the next day. (Id., p. 29) The sitting requirements were continuous, with rare standing and incidental walking. The job description indicates that no job modifications are needed. (Mauthe Depo. Exh. 4) Your Honor finds that the position is outside of Claimant’s geographical area, was not open and available to Claimant at the time the Labor Market Survey was issued, cannot be performed by Claimant due to his work injury, and is not vocationally suitable.
45. Ms. Eberle utilized the Research America job in another Labor Market Survey, and might have also used the Sundance Vacations position. (Id., p. 27) Your Honor therefore finds that neither position could be open and available to Claimant.
46. Dr. Mauthe approved all positions. Ms. Eberle testified that the positions were vocationally suitable for Claimant as they fell within Dr. Mauthe’s restrictions, they are all entry-level with paid training, and within Claimant’s geographic area. (Id., p. 23)
47. At the time of her deposition, Ms. Eberle was made aware that Claimant was actively attending Penn State. She was not aware of this at the time she conducted the Labor Market Survey. (Id., p. 23-24)
48. Ms. Eberle testified that Claimant’s earning capacity is $246.15 per week. (Id., p. 24)
49. Ms. Eberle has not looked at statistical data on where people in different areas of the country travel to and from work, either from a time perspective or a distance perspective. She agreed she does not have such statistical numbers for Claimant’s area. (Id., p. 29-30)
50. Ms. Eberle agreed that all Claimant’s past positions have been manual labor in nature, and not customer service. She essentially agreed that Claimant’s past transferrable skills essentially did not demonstrate the capacity for customer service skills or selling. (Id., p. 30-31)
51. Your Honor finds the testimony of Claimant to be credible, consistent and persuasive, and accepts the same as fact. Your Honor finds Claimant’s demeanor to be credible when he testified at hearing, and his testimony is consistent with the other credible evidence of record.
52. Your Honor finds the testimony of Ms. Eberle to be incredible, inconsistent and unpersuasive, and rejects same. Ms. Eberle took an extraordinary and excessive amount of time to conduct the Labor Market Survey, rendering it uselessly stale; ignored her ethical obligations to the injured worker; ignored the information obtained during the vocational interview; failed to obtain restrictions from Claimant’s treating physicians as she was taking orders from the insurance company despite her admitted ethical duty to the disabled person; ignored the results of her transferrable skills analysis; failed to properly conduct the transferrable skills analysis by using VDare; identified jobs in the Labor Market Survey that were not educationally or vocationally suitable for Claimant or within his geographic area; admitted she had no statistical data regarding Claimant’s geographical area; did not seek any follow-up information during the year it took to complete the Labor Market Survey; used the same positions in multiples Labor Market Surveys; agreed that Claimant does not have the capacity for customer service or selling; and was unaware of Claimant’s college class schedule and efforts to vocationally rehabilitate himself.
53. Your Honor finds the testimony of Dr. Mauthe to be incredible, equivocal and unpersuasive, and rejects same. Dr. Mauthe agreed that Claimant suffered a severe tibia and fibia fracture; ignored pertinent findings on exam; ignored Claimant’s residual functional impairments; failed to address Claimant’s work-related depression when evaluating the Labor Market Survey jobs; failed to reconcile how his imposed restrictions were within the Labor Market Survey jobs; and acknowledged that Claimant was believable and all his complaints were valid.
54. Your Honor finds that due to the work injury, Claimant is significantly limited in function, needing to change positions frequently, experiences left hip and leg pain after sitting 30 minutes and his left leg falls asleep after sitting 40 minutes; has to sit down after standing for 20 minutes; needs to lay down at times; has difficulty with stairs; and suffers from depression. He is further limited by his work injury in that he can only drive short distances. As a result, the positions identified by Ms. Eberle are not open and available to Claimant.
55. Claimant has incurred costs of litigation totaling $487.50. (C-3, attached hereto)
56. Claimant has spent 23.45 hours in litigation of this petition at $225.00 per hour, totaling $5,276.25. (C-4, attached) Your Honor finds that Claimant’s Itemization of Attorney Fees is reasonable as to the amount of time expended and the difficulty of the work performed.
57. Claimant has a 20% Fee Agreement with Calhoon and Kaminsky P.C., which Your Honor finds to be fair and reasonable. (C-1)
58. Claimant does not have any arrearages pursuant to the PA Child Enforcement system website and his Child Support Lien Affidavit. (C-5, attached)
PROPOSED CONCLUSIONS OF LAW
1. The parties are bound by the provisions of the Pennsylvania Workers’ Compensation Act, as amended.
2. In order to prevail in seeking a modification or suspension of benefits, an employer must either offer the claimant a specific job that it has available that the claimant is able to perform, or establish earning power through expert testimony in the nature of a labor market survey. Allied Prods. & Servs. v. W.C.A.B. (Click), 823 A.2d 284 (Pa.Cmwlth. 2003). It is Defendant’s burden to prove open and available jobs which fit into Claimant’s occupational category, and if that referral fails to result in a job, then Claimant’s benefits should continue. South Hills Health System v. W.C.A.B. (Kiefer), 806 A.2d 962 (Pa.Cmwlth. 2002). It is the employer’s burden to convince the fact finder that positions within the injured worker’s residual capacity are actually available. South Hills. Defendant has not met this burden, as the evidence does not establish that the five (5) positions identified by Ms. Eberle are open and available to Claimant, nor that they are educationally and vocationally suitable for Claimant.
Recently, in Phoenixville Hospital v. WCAB (Shoap), 81 A.3d 830 (Pa. 2013), the Supreme Court held that a Labor Market Survey (“LMS”) must contain “meaningful employment opportunities”, or jobs that are actually open and potentially available. Specifically, “the proof required to reduce or suspend a claimant’s benefits must rest upon the existence of meaningful employment opportunities, and not the simple identification of jobs found in want ads or employment listings.” To do this, the Court stated that the jobs identified in a LMS must remain open for a reasonable time to allow the claimant to apply. “If the job is already filled, it does not ‘exist’”. If these criteria are not met, then a claimant’s benefits cannot be modified or suspended by the results of the LMS.
In the instant matter, it took over a year from the initial vocational meeting for Ms. Eberle to produce her Labor Market Survey (“LMS”), containing five (5) jobs which were identified from February 28, 2013 to September 3, 2013. It is unreasonable to suggest that jobs identified 2 -10 months before the issuance of the LMS would still be open and available to Claimant, per Phoenixville Hospital. Ms. Eberle even admitted that the jobs could have been filled the day after she identified them, and she had no personal knowledge that the positions remained open and available at the time the LMS was issued. On this issue alone, Defendant’s Modification Petition must fail.
To lend further support to Claimant’s defense of the Modification Petition, Ms. Eberle also did not take all information supplied by Claimant and his counsel during the vocational interview into account when performing the job referrals. Ms. Eberle ignored Claimant’s problems with sitting for longer than 30 minutes, with driving, and his job history. Ms. Eberle admitted that all Claimant’s past positions have been manual labor in nature, and that Claimant has no customer service skills. She essentially agreed that Claimant’s past transferrable skills did not demonstrate any capacity for customer service skills or selling. She further testified that her transferrable skills analysis identified manual labor positions. Yet the LMS did not reflect the transferrable skills analysis, restrictions with sitting and driving, and Claimant’s educational and vocational background. Instead Ms. Eberle substituted “entry level positions” that did not “require much training” but required extensive sitting and driving, as admittedly no positions were available during the year long job search Claimant’s vocational category. It is very clear to Your Honor that Claimant does not have the educational or vocational background necessary for the identified positions. It is also clear to Your Honor that more than minimal training would be required of Claimant for the positions. Therefore, they are not vocationally suitable for Claimant per South Hills Health System, and cannot be used to modify Claimant’s benefits.
Moreover, Ms. Eberle did not take into account Claimant’s college class schedule when identifying jobs in the LMS. Claimant submits that his attempt to vocationally retrain himself must be considered, much like the claimant in Hardisty v. American Aluminum & Insulation, No. A-01, 1255, Appeal Board, filed May 28, 2002). In Hardisty, the claimant was engaged in retraining through OVR, and the defendant was required to show that the jobs identified in the LMS accommodated the training. Such a ruling still prevails, in spite of Act 57. Burgess v. W.C.A.B. (Plaza Foods), 149 Pa.Commw. 13, 612 A.2d 542 (1992). Per the applicable law, Claimant’s class schedule must be accommodated and the LMS failed to do so. There has been no indication that the prospective Employer’s would permit a flexible work schedule so that Claimant could attend his college classes.
Further, the evidence presented establishes that all but one (1) position is outside of Claimant’s geographical area. Claimant provided undisputed, competent and convincing testimony that four (4) of the identified jobs were over 40 miles, one way. Claimant also provided competent and convincing testimony that he cannot drive such distances due to his accepted work injuries. The only position that Claimant would be able to drive to was with Sundance Vacations. However this position was not established as open and available (see above) and it, along with the Research America job, were used in other LMS for different claimants, rendering them invalid. Ms. Eberle even admitted that she had no statistical data regarding Claimant’s geographical area. The Courts have further consistently acknowledged and substantiated these work-related driving requirements. Open and available jobs must be within reach of a claimant’s current residence. Motor Coils v. W.C.A.B. (Bish), 853 A.2d 1082, 1086 (Pa.Cmwlth. 2004) As a result, the geographical and driving issues further support a denial of Defendant’s Modification Petition.
Further, Dr. Mauthe’s opinions cannot be relied upon, as they are equivocal, incompetent and unpersuasive. Dr. Mauthe acknowledged the seriousness of Claimant’s work injuries and expressed belief in his subjective complaints. He acknowledged that Claimant was not malingering. Dr. Mauthe also imposed significant restrictions on standing, driving, lifting and walking, yet somehow sitting restrictions were absent, despite Claimant’s believable and valid subjective complaints. Yet, he “approved” the job descriptions provided by Ms. Eberle, in spite of his restrictions and the seriousness of Claimant’s work injury, and also without taking into account Claimant’s accepted, work-related depression. In looking at these approved jobs restrictions, Your Honor notes that there is no indication of job modifications to accommodate Claimant’s restrictions and work-related disability and need for significant on-the-job training.
Finally, Defendant has failed to prove there was no work available with the time-of-injury employer. This is a pre-requisite to meeting Defendant’s burden of proof. Prior to seeking a modification or suspension of benefits based on earning power, if a specific job vacancy exists with the employer, which the claimant is capable of performing, the employer must offer the claimant the position. Regulation 123.301(a) The employer’s obligation to offer a specific job vacancy to the employee commences when the insurer provides the notice to the employee required by Section 306(b)(3) of the Act, [77 P.S. 512(b)(3)] and shall continue for 30 days or until the filing of a Petition for Modification or Suspension, whichever is longer. Regulation 123.301 (b).
6. Section 440, 77 P.S. 996, provides that reasonable counsel fees are to be paid by the defendant in a litigated case, unless the defendant meets its burden of establishing facts sufficient to prove a reasonable basis for the contest. Drayton v. W.C.A.B. (Fruehauf Corp.), 551 A.2d 680 (Pa.Cmwlth. 1988). In the instant case, Defendant has failed to meet its burden of proof, as outlined fully above. Defendant filed its Modification Petition based on outdated vocational information; jobs which were not open and available, as required by law; that were not within Claimant’s vocational, occupational and geographic area; and with no competent medical opinion supporting that Claimant could perform the identified jobs. Accordingly, Defendant is to pay Claimant’s attorney fees for unreasonable contest as outlined in Finding of Fact No. 58.
Ronald L. Calhoon, Esq.
Calhoon and Kaminsky P.C.
I.D. No., 53667
2411 North Front Street
Harrisburg, PA 17110
Counsel for Claimant
Date: June __, 2014