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CLAIMANT’S TESTIMONY REGARDING HER SUBJECTIVE BELIEF ABOUT HER WORK CAPABILITIES IS INSUFFICIENT TO DEFEAT A MODIFICATION PETITION.

See: World Kitchen, Inc. v. WCAB (Rideout) _______ A.2d ________ Pa. Cmwlth. 6/25/09 with 9/14/09 amendment).

Claimant sustained a work injury on September 26, 2005 described in the Decision as a back injury when she slipped on stairs at the employer’s premises. An IME was conducted on May 9, 2006 by Dr. Beutler. Dr. Beutler reviewed medical records, diagnostic studies, conducted physical examination and reviewed a video tape of various factory jobs the employer had available for the Claimant. He released Claimant to perform the light duty jobs up to ten hours per day. A job offer was made for work available as of September 6, 2006. Claimant did return to work on September 7, 2006 but missed work on various occasions, left early when she stated her back hurt and refused to work ten hour shifts. The employer filed a Notice of Modification based upon Claimant’s return to work. Claimant challenged this. The employer also filed a Petition for Modification.

The WCJ accepted the testimony of Dr. Beutler as credible and persuasive. He also apparently accepted Claimant’s testimony as credible. Additionally, Claimant had submitted FMLA paperwork with medical records of Dr. Mark Holencik. Dr. Holencik outlined diagnosis and noted Claimant may miss occasional work due to severe backache and spasm. He further indicated that Claimant could continue modified work eight hours per day 40 hours per week. The Judge noted there was little conflict in the case, Claimant returned to work and the jobs were appropriate. The Judge noted employer followed the recommendations of the doctor and that Claimant exercised her own judgment. The Judge indicates he did not believe there were issues with regard to indemnity. His Order stated that “compensation remains modified or suspended depending upon Claimant’s actual earnings. This Order disposes of the outstanding petitions.”

Employer appealed to the WCAB but they affirmed the Judge’s Decision. The Board cited the Latta case where Claimant’s testimony alone, if believed, can be sufficient to support a reinstatement of benefits.

Employer again appealed to the Commonwealth Court. The Court noted that the principal issue they would consider is “whether a Claimant must present medical evidence to defeat the grant of a Modification Petition where the employer’s medical expert testifies that Claimant may work forty hours a week and up to ten hours in any single day and that testimony is credited by the WCJ.”

The Court reviewed the employer’s duty to make a job offer pursuant to §306(b)(2) of the Workers’ Compensation Act. Specifically, the Act provides that if the employer has a job the Claimant is capable of performing, it “shall offer such job to the Claimant.” Job offers made under §306(b)(2) are subject to a four part test established by our Supreme Court in Kachinski v. WCAB (Vepco Construction Co.), 532 A.2d 374 (Pa. 1987). That test provides as follows:

  1. The employer who seeks to modify a Claimant’s benefits on the basis that he has recovered some or all of his ability must first produce medical evidence of a change in condition.
  2. The employer must then produce evidence of a referral (or referrals) to a then opened job (or jobs), which fits in the occupational category for which the Claimant has been given medical clearance e.g. light work, sedentary work, etc.
  3. The Claimant must then demonstrate that he has in good faith followed through on the job referral(s).
  4. If the referral fails to result in a job then Claimant’s benefits should continue.

In the instant case, the Court concluded that employer met its burden under Kachinski. The Board concluded that the Latta analysis is inapplicable to this case for several reasons.

First, the Court noted this was a Modification Petition proceeding where medical evidence was needed to establish the Claimant’s capabilities and whether a particular job fell within those capabilities. The Court highlighted the fact that the employer proved through unrebutted medical evidence that the full time job it provided to Claimant fell within the restrictions required by Claimant’s work injury. The Court noted this was the Judge’s express finding. The Court highlighted that Claimant presented no contrary medical evidence i.e. medical evidence that she could not work forty hours per week at the light assembler job because of her work injury. The Court did not address Dr. Holencik’s written opinion in this regard. Certainly, employer could have objected to such opinion on the basis of hearsay. Moreover, it was noted in the synopsis of such opinion that the doctor did not specifically relate diagnosis or disability to work injury.

Regarding Claimant’s testimony that she cannot work forty hours per week at the light assembler job because of her work injury as well as her statements that sometimes she cannot do the job because her back hurt, the Court explained such testimony was inadequate to rebut employer’s evidence. The Court cited multiple cases for the proposition that a Claimant’s subjective belief about her work abilities, which is not supported by medical restrictions imposed by a physician, is insufficient in a modification proceeding. Thus, where the WCJ accepted Dr. Beutler’s opinion and found that the job offer was appropriate the Court held that the Judge could not deny employer’s Modification Petition notwithstanding Claimant’s subjective beliefs about her ability to work.

Secondly, the Court noted it was far from clear that Claimant’s absences from work were caused by her work injury. This is where she had a long standing degenerative condition in her back, used FMLA excuses for days she failed to work and the excuses listed conditions that Dr. Beutler opined were not part of the work injury. In addition, there were times, by Claimant’s own admission, that she missed work for reasons unrelated to the work injury, such as her son’s illness or an orthodontist appointment.

Thirdly, the Court held that the Board erred in holding that the WCJ denied the Modification Petition. The Court stated to the contrary he granted the petition by finding that Claimant was able to work at the job offered by the employer. The Court held the Board also erred in applying Reinstatement Petitions, i.e. Latta case, to employer’s Modification Petition. The Court noted if Claimant wishes to obtain a reinstatement of benefits because she can’t do the light duty job because of her work injury, then she may file a Reinstatement Petition and submit appropriate evidence in support thereof.

Accordingly, the Court reversed the Board’s Order and remanded the case for entry of an Order granting employer’s Modification Petition based on the availability of suitable employment for forty hours per week as of September 6, 2006 and ongoing. The Court in World Kitchen makes clear that Claimant’s testimony regarding her subjective beliefs about her work capabilities is insufficient to rebut a Modification Petition based on medical evidence submitted by the employer.

Practice Pointer: An employer job offer remains one of the best methods to reduce workers’ compensation costs. The court has now established a bright line rule that where an employer proves claimant is capable of performing modified work and makes a job offer within such restrictions, claimant cannot defeat modification based on his or her testimony alone. Instead, under this scenario, claimant must present medical evidence to defeat a modification of benefits. In World Kitchen, even where the WCJ believed claimant, claimant’s testimony alone was insufficient to meet her burden of proof and the employer was therefore entitled to a modification of benefits.