William P. Corbett, Inc. v. WCAB (Gauthier)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William P. Corbett, Inc., :

Petitioner :

:

v. : No. 587 C.D. 2017

: Submitted: September 29, 2017

Workers’ Compensation Appeal :

Board (Gauthier), :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE PELLEGRINI FILED: October 26, 2017

William P. Corbett, Inc. (Employer) petitions this Court for review of

the Workers’ Compensation Appeal Board’s (Board) order affirming the Workers’

Compensation Judge’s (WCJ) decision granting benefits to Michael Gauthier

(Claimant) and awarding penalties because Employer failed to timely respond to

the workers’ compensation claim.1 For the following reasons, we reverse.

1

The WCJ also awarded Claimant 25 weeks of specific loss benefits for disfigurement

due to the surgical scar on his neck, to be paid upon cessation of Claimant’s entitlement to

indemnity benefits. This award is not before us.

I.

A.

The following are facts found by the WCJ unless otherwise noted.

Claimant was the lead installer for Employer, a company that performs furniture

and shelving installation. On April 2, 2012, Claimant was working at an Air Force

base installing high metal shelving that required him to lift between 80 and 100

pounds. As he was installing shelving, Claimant felt a pinch in his right arm and

his elbow tightened up, and he experienced a weakness in his bicep, tightness in

his forearm, and numbness in his fingers. He informed another installer of his

symptoms but continued to work. Eventually, Claimant went to the emergency

room, where he was referred to Dr. Thomas Mackell (Dr. Mackell), who

determined that the issue was in his neck.

On April 23, 2012, Claimant spoke to Bill Corbett (Corbett), the

owner and president of Employer, about the injury. Claimant also provided Doug

Kimenhour (Kimenhour), Employer’s vice president who handled matters

pertaining to human resources, with paperwork from the doctor because he was

told that in order to have future appointments, he needed to have workers’

compensation forms filled out.

Claimant continued to work for Employer between April 2012 and

February 2013, during which time he claimed that he felt pain in his neck and the

discomfort in his right arm spread to his left as well.

2

After treatment with Dr. Mackell, Corbett referred Claimant to Dr.

Steven Barrer (Dr. Barrer), Corbett’s brother-in-law. Dr. Barrer performed

cervical surgery on Claimant in February 2013. After surgery, Claimant missed

approximately a week-and-a-half of work and he continued to treat with Dr.

Barrer. When Claimant returned to work following surgery, he had tightness in his

forearm, hands, biceps and shoulders, and his right elbow acted up occasionally.

He was given light-duty work.

After his injury, Claimant could no longer work the hours he

previously worked. In August 2013, Claimant gave Employer a note from Grand

View Hospital stating that he should not work from August 15 through August 18,

2013, but the note did not provide any reason for that restriction. Claimant then

gave Employer a hand-written letter from a Dr. Robert Kallish, dated August 18,

2013, stating that Claimant was overwhelmed by personal problems and asking

that he be excused from work for seven to ten days.

Around this time, Claimant had some issues with his family because

his wife had become addicted to narcotic medications and he could not handle the

situation. He was going to send his wife and children to Virginia and needed a

personal loan to do so. Corbett gave Claimant cash for this purpose, as he had

done previously for other needs. In early September 2013, Claimant moved to

Boston to live with his mother. When he decided to move, Claimant was still on

light-duty and had not formally filed a claim for workers’ compensation.

According to Claimant, he could no longer afford the house he was currently living

in because his neck injury was so painful that he missed work regularly.

3

On September 11, 2013, Michelle Clark (Clark), who handles certain

personnel matters for Employer, called Claimant because Employer wanted to

know if Claimant was returning to work. Claimant advised Clark that he was

having many personal issues and reported that he was in Boston trying to get his

head together. When asked about his intention regarding returning to work,

Claimant responded that he thought he lost his job because he just left and did not

give Corbett any information about what was going on. Clark told Claimant that

he still had his job but he needed to keep in contact with Kimenhour. Claimant

said he was not ready to come back to work. Claimant acknowledged that a

physician never advised him that he could not perform light-duty work. When

stating that he felt he was not ready to return to work, Claimant did not have any

medical excuse that he could not do light-duty work. On September 23, 2013,

having not heard back from Claimant, Employer terminated his employment.

In July 2014, Claimant began working for another company in

Boston, making more money and performing light-duty work. Claimant offered no

medical testimony that his work-related injury prevented him from performing

light-duty work for this employer. He acknowledged that after quitting, he had

been out driving along the coast for two weeks in August 2014, and that he drove

from Florida to Virginia at the end of August 2014 to take his son to college. The

WCJ did not address these facts.

On October 21, 2014, Claimant filed a claim petition seeking partial

disability benefits from April 2, 2012, to August 21, 2013, and total disability from

4

August 22, 2013, to July 14, 2014.2 He also filed a penalty petition alleging that

Employer failed to issue a notice of denial (NCD) or other response to his claim

within 21 days of learning about his disability, which Claimant contended occurred

on April 23, 2012.

Employer filed an NCD on October 30, 2014, alleging that Claimant’s

injury was not work-related. Claimant was terminated from his new job in

December 2014 for missing too many days, which he claims was due to the pain in

his neck.

Over the next few years, the WCJ held several hearings on the matter

and counsel took several depositions. Claimant’s expert medical witness, Dr. Gene

Salkind (Dr. Salkind), a board certified neurosurgeon who saw Claimant twice

prior to surgery, opined that Claimant’s injury was due to a C5-6 disc/osteophyte

complex exacerbated by trauma from Claimant’s work. When he examined him in

March 2015, he stated that Claimant had fully recovered from his work injury, but

he should be on light-duty with no lifting of greater than 20 pounds because he had

undergone a single-level anterior discectomy and fusion.

Employer’s expert witness, Dr. Neil Kahanovitz (Dr. Kahanovitz),

board certified in orthopedic surgery, disagreed with Dr. Salkind, stating that

Claimant’s neck injury and resultant surgery was not work related because he

2

Claimant initially sought partial disability from April 23, 2012, and full disability as of

August 21, 2012, but later amended his claim to reflect the dates above.

5

found no evidence that Claimant had suffered any significant neurologic

compression in his C5-6 disc/osteophyte complex.

B.

Regarding when Employer became aware of Claimant’s injury, Clark

testified by deposition that she discussed Claimant’s injury in a conversation with

Kimenhour on April 23, 2012, stating:

After we had this conversation with him, [Kimenhour]

and I decided we probably should call our insurance

broker just to see what we needed to do, you know, did

we need to file any paperwork or anything. And we

talked to [the insurance broker] . . . and he said let’s just

fill out a basic form just to have this on file, that this is

what he, you know, was stating just in case it ever came

up for the future, at least we had something on file.

(Reproduced Record (R.R.) at 172a.) Clark said that in May 2012, Employer

received a bill from the hospital for Claimant’s visit on April 23, 2012:

[W]e got the paperwork, you know, I got this bill from

the hospital and I didn’t know what it was. So I initially

called her to say, you know, I don’t know what’s going

on here, you know, what do we need to do here and, you

know, her conversation was you need to find out what’s

going on and, if need be, you need to file a workers’

comp claim.

(R.R. at 187a-88a.) Claimant’s counsel pressed Clark:

6

Q: So as of May 22nd or so, you were aware that there

was possibly a work-related claim that you needed to

report on behalf of [Claimant]; is that fair?

A: Correct.

(R.R. at 189a.)

At Corbett’s deposition, he discussed a conversation he had with

Claimant regarding his injury, as follows:

[T]here was never a “Hey, I hurt myself on this job. I

need workmens’ comp. I need this, I need that.” We had

a good talking relationship, and we kept in close touch.

And, you know, I’m not saying that I wasn’t aware that

he had some ailments, but I could rattle mine off as well.

(R.R. at 210a.) Claimant also addressed a conversation he had with Corbett

regarding his injury in his own deposition:

I believe in the discussion I had with them in May, I

spoke with them about this workers’ compensation

situation and what was going on. And to the best of my

recollection, it’s been so long ago, I do remember

[Corbett] sitting and telling me that if I was to put this on

workers’ comp, his premium could go up. In doing

that—we had very sensitive contracts with, say, Merck

and other companies like that—that if your premium was

high as a company, you could lose your contract. They

didn’t want any safety issues inside their buildings.

(R.R. at 223a.)

7

C.

The WCJ granted Claimant’s claim petition, finding that Claimant and

his expert witness, Dr. Salkind, to be credible. Where their testimony conflicted

with that of Claimant and Dr. Salkind, the WCJ found Employer and all its

witnesses not to be credible. The WCJ also issued a two percent penalty against

Employer for failure to issue a NCD or other response in a timely fashion.

The WCJ granted partial benefits from April 23, 2013, through

August 21, 2013, “temporary total disability benefits for the period of time

Claimant was out of work for surgery,”3 and temporary total disability benefits

from August 22, 2013, through July 14, 2014, at which time Claimant began

working again with the new employer. The WCJ also granted ongoing total

disability benefits as of December 30, 2014, when Claimant was discharged by his

new employer for missing too many days of work. The WCJ failed to make a

specific finding as to whether or not Claimant left that job because of his injury or

for personal reasons.

Employer appealed to the Board, arguing that benefits should not have

been granted after September 2013 because Claimant left his job voluntarily due to

personal problems rather than his work injury. The Board affirmed, and this

appeal followed.4

3

(WCJ’s Order dated April 6, 2016.)

4

Our scope of review of the Board’s decision is limited to determining whether necessary

findings of fact are supported by substantial evidence, whether constitutional rights were violated

or whether an error of law was committed. Repash v. Workers’ Compensation Appeal Board

(City of Philadelphia), 961 A.2d 227 (Pa. Cmwlth. 2008). Credibility determinations are within

(Footnote continued on next page…)

8

II.

On appeal, Employer does not dispute that Claimant’s injury was

work related, but instead contends that any loss of earnings Claimant incurred was

caused by leaving his employment and moving out-of-state due to his personal

problems.

Under the Workers’ Compensation Act (Act),5 a claimant seeking

disability benefits must prove that he or she suffered a disability and the disability

was caused by a work-related injury. Lewis v. Workmen’s Compensation Appeal

Board (Pittsburgh Board of Education), 498 A.2d 800, 802 (Pa. 1985). To prove a

disability, the claimant must show not merely physical impairment, but loss of

earning power. Section 306(b) of the Act, 77 P.S. § 512.6 “[F]or the purposes of

receiving workmen’s compensation, ‘disability’ means loss of earning power, and

(continued…)

the exclusive province of the WCJ and findings of fact may only be overturned if they are

arbitrary or capricious. Lehigh County Vo-Tech School v. Workers’ Compensation Appeal Board

(Wolfe), 652 A.2d 797, 800 (Pa. 1995).

5

Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 11041.4, 25012708.

6

The term “earning power” is determined:

by the work the employe is capable of performing and shall be

based upon expert opinion evidence. . . . Disability partial in

character shall apply if the employe is able to perform his previous

work or can . . . engage in any other kind of substantial gainful

employment which exists in the usual employment area in which

the employe lives within this Commonwealth.

77 P.S. § 512(2).

9

thus although a claimant may suffer a work-related physical disability, it is only if

that physical disability occasions a loss of earnings that a worker will be ‘disabled’

under the meaning of the Act and will be entitled to receive compensation.”

Bissland v. Workmen’s Compensation Appeal Board (Boyertown Auto Body

Works), 638 A.2d 493, 495 (Pa. Cmwlth 1994). A claimant must prove through

unequivocal medical testimony that the work-related injury caused a loss of

earning power. Fotta v. Workmen’s Compensation Appeal Board (U.S. Steel/USX

Corp. Maple Creek Mine), 626 A.2d 1144 (Pa. 1993).

If an employer has provided work within the claimant’s physical

limitations and has shown that the claimant was terminated for conduct evidencing

bad faith, a lack of good faith or misconduct, disability benefits must be denied

regardless of whether the claimant has a physical disability caused by the work-

related injury. Sauer v. Workers’ Compensation Appeal Board (Verizon

Pennsylvania, Inc.), 26 A.3d 531 (Pa. Cmwlth. 2011); Edwards v. Workers’

Compensation Appeal Board (Sear’s Logistic Services), 770 A.2d 805 (Pa.

Cmwlth. 2001). Under such circumstances, the claimant is not entitled to workers’

compensation disability benefits because “his loss of earnings subsequent to the

discharge was caused by his own action, not by the work injury.” Edwards, 770

A.2d at 808; see also Campbell v. Workers’ Compensation Appeal Board

(Foamex), 707 A.2d 1188, 1191 (Pa. Cmwlth. 1998) (holding that a claimant who

voluntarily leaves employment because he no longer had adequate transportation

did not qualify for workers’ compensation benefits because the reason for his loss

of earning power had nothing to do with his disability).

10

In this case, while it is no longer disputed that Claimant incurred a

work-related injury, based on the facts found by the WCJ, all the evidence

establishes that Claimant left his light-duty job because of personal problems and

not due to any work-related injury. Claimant acknowledged that when he moved

to Boston, he was not informed by any doctor that he could no longer perform

light-duty work. Regarding the benefits awarded as of December 30, 2014, when

he was terminated from a light-duty position with his employer in Boston due to

excessive absenteeism, Claimant contends that his absences were, in fact, due to

pain in his neck. Again, no medical evidence was offered that he could not

perform that light-duty work. To the contrary, Dr. Salkind, Claimant’s medical

witness who examined him after his discharge, testified that Claimant was capable

of performing light-duty work.

However, the evidence does indicate that Claimant may have suffered

a loss of earning power because, after the injury, he could no longer work the

number of hours he had worked before the injury. Accordingly, we remand the

matter to the WCJ to determine if Claimant suffered a loss of earning power for

that reason.

III.

Employer also argues that it did not receive adequate notice of

Claimant’s injury and should not have been penalized under Section 435(d)(i) of

the Act,7 for its delay in issuing an NCD to Claimant because Claimant did not file

7

Section 435(d)(i) of the Workers’ Compensation Act, added February 8, 1972, P.L. 25,

as amended, 77 P.S. § 991(d)(i).

11

a claim petition until October 21, 2014, and Employer issued an NCD on October

30, 2014. The WCJ found that Employer had notice of Claimant’s injury as early

as April 23, 2014, when Claimant had discussions with Corbett and Employer’s

HR representatives.

Section 406.1 of the Act8 requires prompt payment of compensation

or further notice of the decision within 21 days after the employer becomes aware

of the injury. Specifically, the Act directs that the employer “shall promptly

investigate each injury reported or known to the employer . . . .” Section 406.1(a)

of the Act, 77 P.S. § 717.1(a). There is no requirement that a claim petition be

filed in order to trigger this responsibility. As we have explained, when an

employer becomes aware of a claimant’s injury, even though the claimant did not

file a claim petition, the employer “clearly [is] required to file an NCP or NCD

within 21 days of receiving notice of Claimant’s injury.” See Brutico v. Workers’

Compensation Appeal Board (US Airways, Inc.), 866 A.2d 1152, 1155 (Pa.

Cmwlth. 2004).

Clark’s testimony establishes that Employer had notice of Claimant’s

work injury on April 23, 2012, when Claimant presented Kimenhour with

paperwork from his doctor indicating that he needed to fill out workers’

compensation forms before he could see the doctor again. Clark also testified that

she was aware that it was a workers’ compensation matter because she received a

bill from the hospital. Being on notice, Employer had a duty to respond with an

8

Section 406.1 of the Workers’ Compensation Act, added February 8, 1972, P.L. 25, as

amended, 77 P.S. § 717.1.

12

NCD, or other response, within 21 days. Because Employer did not do so, the

WCJ did not abuse her discretion when awarding a penalty.

______________________________

DAN PELLEGRINI, Senior Judge

13

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William P. Corbett, Inc., :

Petitioner :

:

v. : No. 587 C.D. 2017

:

Workers’ Compensation Appeal :

Board (Gauthier), :

Respondent :

ORDER

AND NOW, this 26th day of October, 2017, the order of the Workers’

Compensation Board of Appeals in the above-captioned matter is reversed in part

and remanded to the Workers’ Compensation Judge to determine any loss of

earning power in accordance with the opinion.

Jurisdiction relinquished.

______________________________

DAN PELLEGRINI, Senior Judge