G. Koehler v. WCAB (SEPTA)
G. Koehler v. WCAB (SEPTA) - 3 C.D. 2017
| Pa. Commw. Ct. | Aug 28, 2017Background
- Claimant (Gary Koehler) was injured in 2006 while working for SEPTA; he received WC benefits and underwent surgery. Employer issued a Notice of Ability to Return to Work on July 1, 2014, then filed a modification petition (Nov. 26, 2014) based on a labor market survey (LMS).
- Employer presented an IME physician who restricted Claimant to light-duty work and a vocational expert who identified seven suitable jobs and an earning power of $320–$800/week.
- Claimant and his treating physician disputed the IME, testified Claimant needs to shift positions constantly, takes opioid medication, and cannot perform the listed jobs; Claimant did not apply for the LMS-listed jobs.
- WCJ credited the IME and vocational expert, found no in-house job available, and modified benefits to reflect $320/week earning power; Board affirmed.
- Claimant appealed, arguing (1) Employer failed to prove it had no suitable in-house job before relying on the LMS, and (2) Employer’s medical proof was insufficient.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether employer must prove nonexistence of a suitable in-house job before relying on an earning-power/LMS | Koehler: Employer had statutory burden to disprove in-house job availability; evidence he once worked light duty in 2006 shifts burden to Employer | SEPTA: Burden only shifts if claimant produces evidence of a specific post-notice vacancy within the regulation period; claimant produced none | Held for Employer: burden did not shift because claimant produced no evidence of a specific vacancy between notice (7/1/14) and petition (11/26/14) |
| Whether Employer presented sufficient medical/vocational evidence to support modification based on earning power | Koehler: LMS and IME conflict with treating physician; WCJ should not rely on them | SEPTA: Vocational expert + IME suffice; WCJ may credit them over treating physician | Held for Employer: WCJ’s credibility determinations are dispositive; IME/vocational testimony supplied substantial evidence to support $320/week earning power |
Key Cases Cited
- Rosenberg v. Workers’ Compensation Appeal Board (Pike County), 942 A.2d 245 (Pa. Cmwlth. 2008) (holding claimant’s evidence of a specific in-house vacancy during the employer’s duty period shifts burden to employer to prove no such job existed)
- Reichert v. Workers’ Compensation Appeal Board (Dollar Tree Stores), 80 A.3d 824 (Pa. Cmwlth. 2013) (summarizing Rosenberg: claimant may shift burden by showing a specific job vacancy during duty period)
- Vols v. Workmen’s Comp. Appeal Bd. (Alperin, Inc.), 637 A.2d 711 (Pa. Cmwlth. 1994) (credibility determinations in WC matters lie with WCJ)
- Robertshaw Controls Co. v. Workers’ Comp. Appeal Bd. (Raffensperger), 710 A.2d 1232 (Pa. Cmwlth. 1998) (a single medical expert’s testimony can suffice despite conflicting medical evidence)