City of Pittsburgh v. WCAB (Marinack)
City of Pittsburgh v. WCAB (Marinack) - 2048 C.D. 2016
| Pa. Commw. Ct. | Aug 21, 2017Background
- Claimant (a firefighter) was injured on May 21, 2004; Employer accepted multiple work-related injuries and paid WC benefits.
- Medical releases in 2008: Dr. Phillips (orthopedist) released Claimant to light duty on Sept. 16, 2008 (later limited to sedentary); Dr. Swan (PM&R) released Claimant to medium duty in Oct. 2008. Employer sent Notices of Ability to Return to Work and filed a suspension petition on Sept. 24, 2008.
- Claimant was discharged by Employer for failing to report outside construction earnings, rendering him ineligible for a pension; he nevertheless continued to receive WC and Heart-and-Lung benefits.
- Claimant made limited job-search efforts (a few interviews, OVR counseling in 2006–2007), then underwent shoulder surgery March 25, 2009 and was temporarily totally disabled post-op.
- WCJ Cohen originally suspended benefits (finding Claimant voluntarily withdrew); Board reversed and this Court affirmed, then remanded for reconsideration in light of Robinson II. On remand WCJ Yanity found Employer failed to prove Claimant voluntarily removed himself; Board affirmed and this Court affirmed.
Issues
| Issue | Employer's Argument | Claimant's Argument | Held |
|---|---|---|---|
| Whether Employer proved Claimant voluntarily withdrew from the workforce after notice of ability to return | Employer: Robinson II requires totality analysis; WCJ on remand failed to credit prior findings and imposed an impossible burden on Employer to prove availability of work | Claimant: His limited job searches, lack of pension eligibility, and medical limits do not show voluntary withdrawal; Employer must show job availability only if it first proves withdrawal | Court: Robinson II applies — Employer bears initial burden to prove voluntary withdrawal by totality of circumstances; here Employer failed to show available work within Claimant’s restrictions, so suspension was denied |
| Whether WCJ Yanity improperly contradicted WCJ Cohen on remand | Employer: Yanity disregarded Cohen’s factual finding of voluntary withdrawal and ignored remand instructions | Claimant: Yanity followed remand (apply Robinson II) and made findings limited to separation from workforce | Court: Yanity complied with remand scope; a new WCJ need not reach same result and properly applied Robinson II |
Key Cases Cited
- Robinson v. Workers’ Compensation Appeal Board (Robinson), 4 A.3d 1130 (Pa. Cmwlth. 2010) (plurality opinion underlying analytical framework)
- Robinson v. Workers’ Compensation Appeal Board (Robinson), 67 A.3d 1194 (Pa. 2013) (Supreme Court clarifying totality-of-the-circumstances test and burdens when assessing voluntary withdrawal)
- Sherrod v. Workmen’s Compensation Appeal Board (Thoroughgood, Inc.), 666 A.2d 383 (Pa. Cmwlth. 1995) (WCJ has authority over credibility and evidentiary weight)
- Teter v. Workers’ Compensation Appeal Board (Pinnacle Health System), 886 A.2d 721 (Pa. Cmwlth. 2005) (remand limits: WCJ must confine decision to remand instructions)