City of Wilkes-Barre v. Snyder

1

City of Wilkes-Barre, Petitioner v. Thomas Snyder (Workers' Compensation Appeal Board), Respondent

No. 289 C.D. 2021

Commonwealth Court of Pennsylvania

April 20, 2023

OPINION NOT REPORTED

Submitted: May 27, 2022

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE STACY WALLACE, Judge

MEMORANDUM OPINION

MICHAEL H. WOJCIK, JUDGE

City of Wilkes-Barre (Employer) petitions this Court for review of the Workers' Compensation (WC) Appeal Board's (Board) February 18, 2021 order that reversed the decision of a Workers' Compensation Judge (WCJ) denying Thomas Snyder's (Claimant) petition to reinstate his disability benefits because he voluntarily retired from the workforce. Upon review, we affirm.

The relevant facts as found by the WCJ are as follows. Claimant was employed as a firefighter by Employer when he was injured at work on October 1, 2017, after he tripped over some equipment and fell, injuring his right shoulder. WCJ's Opinion, 1/31/2020, at 3. See Certified Record (C.R.) at Item No. 5. Employer recognized Claimant's injury by way of an Amended Notice of Compensation Payable dated August 7, 2018, for a strain or tear to the right shoulder, and Claimant began receiving temporary total disability benefits (TTD) as of October 2, 2017. WCJ's Opinion at 3. Claimant's TTD benefits were suspended as of August 6, 2018, when Claimant returned to work in a modified-duty position. Id. Claimant continued working in a modified-duty position until November 26, 2018, when Claimant submitted a resignation letter confirming that he was retiring as of November 26, 2018, due to a work-related injury. Id. at 3-4; see also Reproduced Record (R.R.) at 114a. On April 11, 2019, Claimant filed a petition to reinstate his TTD benefits, in which he alleged that he retired due to his work-related injury, "'when it was determined that he would not ever be physically capable of returning to his pre-injury job as a firefighter and that the temporary, light-duty job would no longer be available.'" WCJ's Opinion at 3.

The WCJ held hearings on Claimant's petition to reinstate on May 7, 2019, August 22, 2019, and October 10, 2019, at which Claimant and Employer appeared, were represented by counsel, and presented testimony and documents. WCJ's Opinion at 3. Regarding his retirement, Claimant testified "that he retired because he received a letter from Dr. [Michael] Banas, [Claimant's treating physician,] dated November 24, 2018, indicating that he had not recovered from the injury and was not progressing." Id. at 4. Claimant testified that he was receiving Heart and Lung benefits,^[1] and that it was "his understanding that those benefits were temporary, such that he either had to return to work full duty or leave the fire department." Id. Claimant admitted that no Employer representative ever told him that either his Heart and Lung or WC benefits would be ending. Id.

Claimant also presented testimony from Michael Bilski, a fire department captain and union president (Union President). WCJ's Opinion at 4. The Union President testified that he believed Claimant's modified-duty position was supposed to be temporary, that other injured firefighters who were unable to return to work had retired, and that when they did, the WC benefits "'just kind of straightened itself out,'" and the union did not "'handle that at all.'" Id. The Union President also testified that he never received any notification that Employer intended to end Claimant's WC or Heart and Lung benefits. Id. Both parties agreed that "at no time did [Employer] tell Claimant that his modified-duty work would no longer be available to him." Id.

Employer presented testimony from Nicole Ference, Human Resources Director for Employer (HR Director). WCJ's Opinion at 4. The HR Director testified that, although the modified work assignment policy was eliminated from the collective bargaining agreement (CBA) between Employer and the Union effective January 1, 2019, after Claimant had already retired, Employer did not eliminate its modified-duty work program. Id. The HR Director confirmed that Employer continues to make modified-duty work available on a case by case basis, "meaning someone looking for modified-duty work would need to present something to the Chief and HR to see if anything was available at that time." Id. at 4-5.

The WCJ considered and compared the testimony of Claimant, the Union President, and the HR Director. As to the issue of Employer's policy regarding modified-duty work, the WCJ found Claimant and the Union President to be credible in part, but found the testimony of the HR Director "to be more credible and persuasive." WCJ's Opinion at 5. The WCJ specifically credited the HR Director's testimony that, although Employer's modified work policy was removed from the CBA, "that did not indicate that modified-duty work was no longer going to be available" with Employer. Id. Likewise, the WCJ credited the HR Director's testimony that, although modified-duty assignments were temporary, "there was no evidence presented that the modified-duty work Claimant was performing was ever taken away or specifically limited in duration." Id. The WCJ specifically rejected Claimant's testimony that he retired due to his work injury, "when the record reflects that he voluntarily chose to retire, and is now, after the fact, attempting to attribute it to his work-related injury for secondary gain." Id. The WCJ also found the testimony of the Union President carried little weight because he conceded that he was not involved in WC matters. Id.

The WCJ also considered testimony from Claimant's treating physician and from Employer's expert, Dr. Ronald DeSimone (Employer's expert). Claimant's treating physician submitted a letter dated November 24, 2018, wherein he opined that Claimant had reached maximum medical improvement regarding his right shoulder injury, required work restrictions, was permanently disabled, and "was not capable of returning to his occupation as a firefighter in an unrestricted capacity." WCJ's Opinion at 5; see also R.R. at 111a. Employer's expert opined that Claimant was progressing well following his shoulder surgery, and the doctor anticipated an eventual, full recovery, and he also agreed that Claimant was restricted to light-duty work at this time. WCJ's Opinion at 6.

The WCJ made the following findings regarding Claimant's retirement.

There is no dispute that Claimant voluntarily retired as of November 26, 2018; that modified-duty work at or above his pre[-]injury wages was being made available to him at that time within his restrictions; that Claimant was not told that the modified-duty work was no longer available to him; and that no physician totally disabled Claimant from work due to his work-related injury at that time. Regardless of whether Claimant correctly or incorrectly believed that at some point in the future the modified[-]duty work would no longer be available to him, Claimant voluntarily removed himself from the workforce by retiring despite modified[-]duty work at or above his pre-injury wages remaining available to him within his restrictions. Therefore, Claimant's loss in earning power as of November 26, 2018, was due to Claimant's voluntary removal from the work[]force and not Claimant's work-related history.

WCJ's Opinion at 5, Finding of Fact (FF) No. 13. The WCJ further found that, based on the credited testimony of the HR Director, that "although [the HR Director] confirmed that modified-duty work assignments were temporary, there was no evidence presented that the modified-duty work Claimant was performing was ever taken away or specifically limited in duration." WCJ's Opinion at 5, FF No. 14.

Based on these findings, the WCJ concluded that "Claimant has failed to establish that compensation benefits should be reinstated as the evidence of record establishes that Claimant voluntarily removed himself from the workforce as of November 26, 2018, despite suitable work at or above his pre-injury wages remaining available to him within his restrictions." WCJ's Opinion at 6, Conclusion of Law (CL) No. 2. ^[2] Claimant appealed the WCJ's denial of his petition to reinstate to the Board, arguing that the WCJ erred when he concluded that Claimant's retirement was voluntary. In an order dated February 18, 2021, the Board reversed the WCJ's decision to deny reinstatement, determining that the WCJ erred in concluding that Claimant voluntarily retired. Board Opinion, 2/18/21, at 5. See C.R. at Item No. 8. The Board explained that the analysis of whether a claimant voluntarily retired was governed by City of Pittsburgh v. Workers' Compensation Appeal Board (Robinson) (Robinson I), 4 A.3d 1130 (Pa. Cmwlth. 2010), aff'd, 67 A.3d 1194 (Pa. 2013) (Robinson II). Board Opinion at 2. The Board explained that, in Robinson I, our Court provided the applicable standard, as follows:

In order to show that efforts to return a claimant to the workforce would be unavailing because a claimant has retired, an employer must show, by the totality of the circumstances, that the claimant has chosen not to return to the workforce. Circumstances that could support a holding that a claimant has retired include: (1) where there is no dispute that the claimant retired; (2) the claimant's acceptance of a retirement pension; or (3) the claimant's acceptance of a retirement pension and refusal of suitable employment within her restrictions.

Robinson I, 4 A.3d at 1138. Board Opinion at 2.

The Board summarized the relevant testimony of Claimant, the Union President, the HR Director, Claimant's treating physician, and Employer's expert. Board Opinion at 2-4. The Board recognized that both parties stipulated that Claimant retired once ...