IN THE COMMONWEALTH COURT OF PENNSYLVANIA

City of Pittsburgh, :

Petitioner :

: v. : No. 2048 C.D. 2016 : Submitted: April 28, 2017 Workers’ Compensation Appeal : Board (Marinack), :

Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY PRESIDENT JUDGE LEAVITT FILED: August 21, 2017

The City of Pittsburgh (Employer) petitions for review of an adjudication of the Workers’ Compensation Appeal Board (Board) denying Employer’s petition to suspend the compensation benefits of Kenneth Marinack (Claimant). In so doing, the Boa rd affirmed the decision of the Workers’ Compensation Judge (WCJ) tha t Employer did not prove Claimant had voluntarily removed himself from the workforce. Employer argues that the evidence proves otherwise and, thus, the Board erred in affirming the WCJ. Discerning no merit to this contention, w e affirm the Board

.

This ca s e has a protracted history. Claimant worked as a firefighter for Employer. On May 21, 2004, he was injured when he fell in a stairwell while pulling down a ceiling in a burning building

. 1 Employer issued a Notice of Compensation Payable (NCP) describing the accepted injury as a left shoulder

1 Claimant was 42 years old at the time of the injury.2

rotator cuff tear; aggravation of lumbar disc disease; and a psychological adjustment disord er with anxiety and depression. Pursuant to the NCP, Claimant
collected compensation benefits in the amount of $690 per week.

On September 16 , 2008, Dennis J. Phillips, II, M.D., one of Claimant’s treating physicians, informed Employer that Claimant could return to
full

- tim e work in a light

- duty position

. On September 18, 2008, Employer sent Claimant a Notice of Ability to Return to Work pursuant to Section 306(b) of the Workers’ Compensation Act (Act)

. 2 On September 24, 2008, Employer filed a petition to suspend Claimant’s compensation benefits as of September 16 , 2008, because Claimant had “retired and voluntarily remove d himself from the entire
labor market and/or work force .” Reproduced Record at 2 (R.R. __). A hearing on the suspension petition was conducted before WCJ Nathan Cohen. 3

2 Act of June 2, 1915, P.L. 736, as amended , added by the Act of Ju ne 24, 1996, P.L. 350, 77 P.S. §512(3)

. Section 306(b)(3) of the Act states as follows : If the insurer receives medical evidence that the claimant is able to return to work in any capacity, then the insurer must provide prompt written notice, on a form prescribed by the department, to the claimant, which states all of the following: (i) The nature of the employe’ s physical condition or change of condition. (ii) That the employe has an obligation to look for available employment. (iii) That proof of available employment opportuni ties may jeopardize the employe’ s right to receipt of ongoing benefits. (iv) That the employe has the right to consult with an attorney in order to obtain ev iden ce to challenge the insurer’ s contentions. 77 P.S. §512(3).
3 Employer also filed a termination petition regarding Claimant’s psychological injury, which was granted by the WCJ. Claimant filed a penalty petition, which was denied by the WCJ. The terminat ion and penalty petitions were not appealed to this Court. I n 2010, Employer filed a second suspension petition, asserting that Claimant’s failure to report earnings from self

- employment warranted a suspension of benefits. This Court agreed, (Footnote continued on the next page . . .)3 Employer submitted the deposition of Dr. Phillips, a board certified orthopedic su rgeon who has treated Claimant for his left shoulder injury since October 2004. Dr. Phillips opined that Claimant’s left shoulder injury rendered him incapable of doing the heavy work of a firefighter. However, in April 2005, Dr. Phillips sent Employer a report stating that Claim ant could do sedentary work.
O n September 16, 2008, Dr. Phill ips released Claimant to do light

- duty work, with

a lifting limit of no more than twen ty pounds. When Claimant experienced increasing left shoulder pain, Dr. Phillips limited Claimant to sedentary work as of October 28, 2008. On March 25, 2009, Dr. Phillips did surgery on Claimant’s left shoulder, which left him temporarily totally disabled. The postoperative diagnosis was mild arthritis in the shoulder joint. As of May 1, 2009, when he was deposed, Dr. Phillips had not yet released C laimant to do any type of work.

Employer also presented the deposition testimony of Barbara E. Swan, M.D., who is board certified in physical medicine and rehabilitation , and has

treate d Claimant’s work

- related back injury since July 28, 2005. In September 2005, Dr. Swan informed Claimant that he would not be able to return to work as a firefighter. On October 14, 2008, following a physical examination, Dr. Swan
released Claimant to do medium

- duty work, notwithstanding his back injury. 4 Dr.
Swan testified that Claimant has never asked her to identify his job rest rictions , but in 2006 they did have a conversation about the Office of Vocational Rehabilitation

(continued . . .) and granted a suspension as of June 2009. Marinack v. Workers’ Compensation Appeal Board (City of Pittsburgh) , (Pa. Cmwlth., No. 871 C.D. 2015, filed February 19, 2016). However, that decision did not affect the instant suspension petition.
4 Employer sent Clai mant a second Notice of Ability to Return to Work upon receipt of Dr. Swan’s release.4

(OVR). Claimant advised her that OVR was pessimistic about his job prospects given his physical limitations

.

Employer submitted Claimant’s employment record. It recounted that Claimant was discharged because he did not inform Employer that he was earning wages in construction while he was collecting disability compensation and benefits under what is commonly known as the Heart and Lung Act. 5 Claimant’s discharge rendered him ineligible for a disability or retirement pension. However, Claimant has continued to receive workers’ comp ensation disability and Heart and Lung Act benefits since his discharge.

Claimant testified in opposition to Employer’s petition, both by deposition and by live testimony. Claimant recounted that he has experienced both back and shoulder pain since his 2004 work injury and has neve r returned to work.

Regarding Employer ’s April 2005 discharge, Claimant explained that an elderly couple for whom he was doing construction work complained to Employer about the quality of his work. Employer investigated and r eferred the matter to the “Fire Trial Board
, ” which found that Claimant had acted unethically by failing to report his construction work income to Employer

. R.R. 25. O n that basis, Claimant was discharged

.

Claimant s tated that prior to being fired he ha d applied for a pensi on. He testified that he was required to submit documentation from three medica l doctors in order to apply and h e did submit this evidence. However, shortly

5 Act of June 28, 1935, P.L. 477, as amended , 53 P.S. §§637

- 638. The Heart and Lung Act provides firemen injured on the job their full salary. They receive these bene fits concurrent with their workers’ compensation disability benefits. According to Claimant, Employer attempted to stop paying him Heart and Lung Act benefits after he was fired, but a city arbitrator did not allow it.5

thereafter , Employer discharged him, which caused his pension application to be
denied

. Claimant testified that he considers himself to be disabled, but he
denied that he has withdrawn from the workforce. H e testified that he began working with a vocational counselor from OVR sometime in 2006 and met with him three times, mo st recently in September 2007. Because of his significant physical limitations, Claimant is not sure what work, if any, he is able to do.

Claimant acknowledged receiving Employer’s two Notice s of Ability to Return to Work in September and October of 2008

. A fter receiving the Notices,
Claimant interviewed for two jobs. One position was at a financial planning

company managed by his aunt and the other was at a commercial insulation

company owned by a high school friend. Claimant also looked at the want ad s for jobs . However, when Claimant was scheduled for surgery, he stopped looking for
work

. 6 Claimant stated that he planned to return to OVR to seek employment training after his March 25, 2009, shoulder surgery, at which point he would learn
the full ex tent of his capabilities.

Crediting the testimony of Dr. Phillips and Dr. Swan , the WCJ found that Claimant was capable of modified

- duty work “at all relevant times.” WCJ
Cohen Decision , 10/27/2009 , at 12; Finding of Fact No. 40. 7 The WCJ also found
tha t Claimant never asked his doctors about what, if any, work restrictions applied to him and did not seek their help with the OVR. The WCJ did not credit

6 Claimant testified on March 16, 2009.
7 The WCJ has complete authority over questions of credibility, conflicting medical evidence and evidentiary weight. Sherrod v. Workmen’s Compensation Appeal Board (Thoroughgood, Inc.)
, 666 A.2d 383, 385 (Pa. Cmwlth. 1995).6

Claimant’s testimony that he did not withdraw from the workforce. The WCJ
found that contacting a family member and a childhood friend about a job did not
constitute a good faith effort to find work. The WCJ also found that because Employer alleged Claimant had retired, Claimant had the burden to show that he had been forced out of the workforce by his injury or that he was searc hing for work in good fai th

. Claimant failed to meet his burden. Accordingly, the WCJ suspended Claimant’s workers’ compensation benefits as of September 16, 2008, the date of Dr. Phillips’ initial work release.

Claimant a ppealed, and the Board reversed. First, the Board held that
the WCJ erred in finding that Claimant had retired . To the contrary , the evidence showed that Employer fired Claimant, who was then rendered ineligible for any type of pension. Claimant ’s disch arge did not show that Claimant had withdraw n from the workforce. In the absence of evidence that Claimant had withdrawn from the workforce, the Board held that it was Employer’s burden to prove that Claimant had earning capacity, which it could do by int roducing evidence of a job referral or a labor market survey. Because Employer did not do so, the Board denied the suspension petition

.

Employer petitioned this Court for review, and we affirmed the Board
in City of Pittsburgh v. Workers’ Compensation A ppeal Board (Marinack) , (Pa. Cmwlth., No. 100 C.D. 2011, filed February 7, 2012). Our decision was based on City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson) , 4 A.3d 1130, 1134 (Pa. Cmwlth. 2010) ( plurality op.) ( Robinson I ), affirmed , 6 7 A.3d 1194 (Pa. 2013) ( Robinson II ), which at that time was pending before the Pennsylvania Supreme Court.7 Employer petitioned for allowance of appeal to the Supreme Court. By that time the Supreme Court had decided Robinson II , which affirmed Robinson
I

. In doing so , Robinson II established a new “analytical paradigm” for deciding whether an employee on compensation has withdrawn from the workforce.
Robinson II , 67 A.3d at 1209

. T he Supreme Court vacated this Court’s order of February 7, 2012 , and remand ed for reconsideration in light of Robinson II

.

On remand, this Court explained that the WCJ had no t made factual findings on Claimant’ s separation from th e workforce and did not have the benefit of the Supreme Court’s analysis in Robinson II

. Acco rdingly, we ordered a remand so the WCJ could “reassess all relevant evidence presented in this case and determine whether Employer proved, through the totality of the circumstances, that Claimant voluntarily withdrew from the workforce.” City of Pittsbur gh v. Workers’ Compensation Appeal Board (Marinack) , (Pa. Cmwlth., No. 100 C.D. 2011, filed January 8, 2015) , slip op. at 11

.

On remand, the case was reassigned to a new WCJ , Gerald Yanity. 8 WCJ Yanity adopted WCJ Cohen’s prior findings of fact and the n made additional findings to address the issue presented on remand. Specifically, the WCJ found as
follows :
2. Claimant has made no affirmative statements, nor has he

taken any affirmative actions, which indicate an intent to withdraw from the workforce voluntarily. Judge Cohen found that Claimant’s efforts to locate work were “questionable at best” and I reaffirm that finding. Although Claimant’s job search efforts were certainly questionable, the record of OVR and Claimant’s applications for employmen t are not consistent with a purported voluntary withdrawal from the workforce.

8 WCJ Cohen had retired.8 3. Claimant’s initial separation from his job with Employer was not voluntary. There is no genuine dispute regarding the fact that Claimant’s termination from the Employer was the result of his violation of Fire Bureau Regulations.
4. Following his termination from employment, Claimant made various perfunctory and feeble attempts to find suitable work on his own. Claimant’s lack of diligence in his job search does not, however, convert his removal from the workforce from involuntary to voluntary.
WCJ Yanity Decision , 11/06/2015 , at 4

- 5 ; Findings of Fact Nos. 2

- 4 (internal citations to the record omitted). Based on these findings, the WCJ concluded that “Employer has failed to prove, by the totality of the circumstances , that Claimant ha[d] voluntarily removed himself from the workforce.” WCJ Yanity Decision
, 11/06/2015 , at 5 ; Conclusion of Law No. 4.

Employer ap pealed to the Board, arguing that the WCJ ’s conclusion

was not c onsistent with the factual findings of WCJ Cohen, which had been adopted by WCJ Yanity

. The Board rejected this argument. The Board concluded that WCJ Yanity carried out the remand order and properly applied the legal analysis required by Robinson II

. B oard Adjudication, 11/30/2016 , at 11. Claimant’s lack of diligence in looking for work did not, under Robinson II , prove that he had voluntarily left the workforce . Accordingly, it was Employer’s burden to prove the availability of work within Claimant’s residual capacity, either by job
referrals o r by a labor market survey, in accordance with Robinson II

.

Employer has petition ed for this Court’s review. 9 Employer first
contends that the Board misinterpreted and misapplied the holding in Robinson II ,

9 This Court’s review of a n order of the Board is to determine whether the necessary findings of fact are supported by substantial evidence , whether constitutional rights were violated , or (Footnote continued on the next page . . .)9

the reby imposing an insurmountable burden of proof upon Employer . Second, Employer contends that because WCJ Cohen found, as fact, that Claimant had
removed himself from the workforce , WCJ Yanity erred in finding otherwise.

We begin with a review of Robins on II

. In that case , a police of ficer was placed on light

- duty work in 1997 because of a work injury. In 2001, she sustained new injuries in an automobile accident, while tra veling to a medical appointment to treat her 1997 work injury. The employer accepted liability for the new injuries. Thereafter, the claimant did not return to her light

- duty position and the employer did not offer any other light

- duty work. In 2004, the claimant applied for and received a disability pension from the employer on the basis that
she was unable to perform her pre

- injury job.

In 2007, the c laimant underwent an independent medical examinatio n (IME) , which found her unable to return to work as a police officer but able to perform modified

- d uty work. T he employer sent the claimant a Notice of Ability
to R eturn to work on November 8, 2007 , and three weeks later filed a petition to suspend compensation benefits, asserting that the claimant had voluntaril y removed herself from the work force.

The WCJ d enied the suspension petition because the employer had eliminated the claimant’s light

- duty job . Further, the claimant had reported to the local unemployme nt center after receipt of the Notice of A bility to Return to W ork and the suspension petit ion. At the center, she searched for available jobs she could perform, but did not find any. The Board affirmed the WCJ

.

(continued . . .) whether an error of law was committed. City of Philadelphia v. Wo rkers’ Compensation Appeal Board (Brown) , 830 A.2d 649, 653 n.2 (Pa. Cmwlth. 2003).10 Before this Court, the employer argued that the claimant had retired.
W ith one exception, the claimant made no effort to find employment after 2001.
I n a plurality opinion, we held that the employer did not meet its burden for several

reasons : t he employer terminated the claimant ’s light

- duty position ; the claimant
did not state in her disability pension application that she w as incapable of any employment ; the claimant did look for work at least once; and the employer did
not submit any evidence of available positions within her restrictions. Robinson II , 67 A.3d at 1199

- 1200 ( summarizing this Court’s analysis in Robinson I ).
The Su preme Court affirmed Robinson I . It used the appeal to clarify the standard to apply when co nsidering whether a claimant ha s voluntaril y withdrawn from the workforce. Id

. at 1209. T he Supreme Court explained that a claimant’s application for a disability or retirement pension does not create a presumption that a claimant has removed herself from the workforce. At most, t he acceptance of a retirement pension creates a

permissive inference that the claimant has retired. Such an inference, if dra wn, is not on its own sufficient evidence to establish that the worker has retired

- the inference must be considered in the context of the totality of the circumstances. The factfinder must also evaluate all of the other relevant and credible evidence befo re concluding that the employer has carried its burden of proof

. Id

. The Supreme Court further explained as follows:

If the employer produces sufficient evidence to support a finding that the claimant has voluntarily left the workforce, then the burden shifts to the claimant to show that there in fact has been a compensable loss of earning power. Conversely, if the employer fails to present sufficient evidence to show that the claimant has retired, then the employer must proceed as in any other case inv olving a proposed modification or suspension of benefits.11

Id. at 1209

- 10

.

Applying this standard, the Supreme Court held that the claimant’s disability pension showed only an intention to withdraw from h er pre

- injury job,
not the entire workforce. Regarding the employer’s claim that the claimant received a disability pension for many years without seeking new employment or evidence that she was incapable of work, the Supreme Court responded as follows:

the fact that claimant did not submit evidence showing that she was unable to work does not prove voluntary retirement, especially in light of the [e]mployer ’ s own medical testimony regarding [c]laimant ’ s physical limitations, and the absence of evidence o f available work within her restrictions or expert testimony regarding her earning power.

Id . at 1210 (internal footnote omitted).

With the principles of Robinson II in mind, we turn to Employer’s first issue, i.e. , that the Board misapplied the princi ples of Robinson II , thereby placing an insurmountable burden of proof upon Employer. Employer argues that
Robinson II directed a “totality of the circumstances” analysis ; on remand, the
WCJ did only “piecemeal analysis” of the record

. Employer B rief at 23. Claimant responds that WCJ Yanity properly followed the standard set forth in Robinson II , as the Board held . Employer simply failed to meet its burden of proof that
Claimant had removed himself from the workforce.

In its challenge to the WCJ’s Rob inson II analysis , Employer challenges Findings of Fact Nos. 2 through 4 in the WCJ ’s decision. We consider those challenges seriatim

.

In Finding of Fact No. 2 , the WCJ recited that Claimant made no affirmative statement or actions indicating his intent to retire. Employer12

characterizes this statement as self

- serving. That characterization does not make the finding of fact erroneous

.

In Finding of Fact No. 3 , the WCJ recited that Claimant’s separation was involuntary. Employer complains that C laimant’s separation was due to misconduct and Claimant would have been receiving a p ension had it not been for
his misconduct. Finding of Fact No. 3 correctly characterizes Claimant’s separation from work as involuntary, an apt description of a discharge . It does not mention Claimant’s attempt to obtain a pension , but that does not constitute error. In any event, “seek[ing] or accept[ing] a pension” is not sufficient evidence of
intent to retire. Robinson II , 67 A.3d at 1209

.

In Finding of Fact No. 4 , the WCJ found that Claimant’s lack of diligence in seeking work did not constitute a voluntary removal from the
workforce. Employer argues that Claimant’s attempts to find work were discredited by WCJ Cohen and, thus, Finding of Fact No. 4 is in error. W e disagree. WCJ Yanity adopted WCJ Cohen’s findings of fact, but these findings
were silent on the issue of Claimant’s retirement. Nevertheless, WCJ Yanity expressly accepted WCJ Cohen’s determination that Claimant’s efforts to locate work were “questiona ble at best.” WCJ Yanity Decision
, 11/6/2015 , at 2; Finding
of Fact No. 2. In fact, WCJ Yanity described Claimant ’s attempts as “perfunctory” and “feeble.” WCJ Yanity Decision , 11/6/2015 , at 3; Finding of Fact No. 4. However, WCJ Yanity concluded it co uld not be inferred from C laimant’s feeble job search that he had removed himself from the workforce

.

Claimant’s “feeble” attempts to find employment were more substantial than those of the claimant in Robinson II , who had not sought13

employment in the six years before receiving the Notice of Ability to Return to
W ork and then responded with a single job application

. Nevertheless, this lack of
effort to seek employment was held not to prove voluntary retirement, particularly in “the absence of evidence of available work within her restrictions or expert testimony regarding her earning power.” Robinson II , 67 A.3d at 1210. Likewise, here, Employer did not present evidence on the availability of work within Claimant’s restric tions or his earning power.

Claimant was fired for misconduct and , thus, rendered ineligible for a pension. Employer does not explain whether Claimant sought a disability pension

or a retirement pension. T he fact that Claimant was in his mid

- 40s when he applied for the pension , and presented medical doc umentation to qualify, suggests
that he sought a disability pension. However, it does not matter. Under Robinson
II , seeking or accepting any type of pension, “much less a disability pension,” does

not r aise a presumption that one has left the workforce. Id . at 1209. The Supreme Court explained that a disability pension shows “at most” that a claimant cannot perform the “time

- of

- injury position.” Id . at 1205. It does not show that a claimant “decided to forgo all employment. Any presumption of a total in ability to
work or intent not to work is conjectural.” Id

.

Simply, Employer did not present the evidence required, such as job availability to Claimant, to allow the inference that Claimant has with drawn from
the workforce

. The WCJ and Board did not err in their understanding and application of Robinson II

.

In its second issue, Employer argues that WCJ Yanity ’s decision
cannot be reconciled with WCJ Cohen’s decision that Claimant voluntar il y14

removed himself from the workforce. WCJ Yanity did not, according to Employer , follow the remand instructions

.

The decision of WCJ Cohen placed the burden on Claimant to prove that he could not work at any job because of his work injury or that he was a ctively looking for work. WCJ Cohen so held because he reasoned that E mployer should
not be burdened with having to demonstrate C laimant ’s intentions, an evidentiary
matter within the control of Claimant. However, the Board held that WCJ Cohen
erred beca use it was Employer’s burden to prove Claimant had retired

. Thus, the
Board reversed WCJ Cohen. This Court agreed with the Board, but in light of
Robinson II , we remand ed the case to the WCJ because of the lack of a factual finding that Claimant had volu ntarily separated from the workforce.

On remand, a WCJ must “confine his decision to the instructions
within the remand order.” Teter v. Workers’ Compensation Appeal Board (Pinnacle Health System) , 886 A.2d 721, 723 (Pa. Cmwlth. 2005). “[A] WCJ is

not required to produce the same result as the initial decision ....” Id

.

WCJ Yanity complied wi th the remand instructions. His new findings related solely to the question of Claimant ’s separation from the workforce pursuant

to Robinson II ; the initial burden of proof was placed squarely on Employer. Further, under Robinson II , the fact that Claimant applied for a disability pension was not sufficient to meet Employer’s burden. The only other evidence of record
of retirement was Claimant’s “perfunctory” and “feeble” attempts to find a job. WCJ Yanity Decision , 11/6/2015 , at 3; Finding of Fact No. 4. Both WC J Yanity and the Board agreed that Claimant’s lack of diligence did not prove a voluntar y separation from the workforce.15 We find no error in the Board’s a ffirmance of WCJ Yanity’s decision

. As noted above, Claimant’s attempts to find employment were more substantial
than that of the claimant in Robinson II . Further, Employer’s evidence was that Claimant was released to light

- duty work in September 2008, b ut again limited to sedentary work in October 2008, due to increased shoulder pain. From October 2008 to March 2009, Claimant was awaiting medical clearance for shoulder surgery. On M arch 25, 2009, he underwent surgery and w as held temporarily totally di sabled. Thus , Claimant spent the majority of the time following his receipt of the September 18, 2008, Notice of Ability to Return to Work awaiting

surgery. Under these circumstances it would be difficult to conclude Claimant’s minimal job efforts during that period were due to a decision to separate from the workforce, as opposed to the limits imposed on him by his work injury.

For these reasons, we affirm the Board’s adjudication

.

_____________________________________ MARY HANNAH LEAVITT, President JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

City of Pittsburgh, :

Petitioner :

: v. : No. 2048 C.D. 2016
: Workers’ Compensation Appeal : Board (Marinack), :

Respondent :

O R D E R

AND NOW, this 21 st day of August , 2017, the order of the Workers’ Compensation Appeal Board dated November 30, 2016, in the above

- captioned
matter is AFFIRMED.

_______ _ ______________________________ MARY HANNAH LEAVITT, President Judge