*1 981A.2d 1287 Raymond PAYNE, Appellant v. (Lieutenant Joseph SCARNATI, Chairper- Hon. B. Governor and Pardons) son, Pennsylvania Board of and Each Member of The Pennsylvania (Secre- Pardons, Jeffrey Beard, Board A. tary, Pennsylvania Department Corrections), Appellees.
Supreme Pennsylvania. Court of 20, Oct. 2009. ORDER PER CURIAM. NOW, October,
AND day this 20th Order Court AFFIRMED.
981A.2d 1288 Harry RIDDLE, Appellant WORKERS’ APPEAL COMPENSATION BOARD (ALLEGHENY ELECTRIC, INC.), CITY
Appellee. Supreme Pennsylvania. Court of Argued March 2009. Decided Oct. *2 Abes, Edward Esq., Baumann, P.C., J. Abes Pittsburgh, for Harry Riddle. Chaban,
Lawrence R. Esq., for amicus curia Pennsylvania Association for Justice.
Amber Marie Kenger, Richard Esq., Lengler, C. Esq., Board, Workers Appeal for Harrisburg, Work- ers’ Compensation Appeal Board.
Regis Moeller, Poerio, Esq., Mason, Inc., J. Walter & Electric, for Pittsburgh, Allegheny City Inc. CASTILLE, C.J., SAYLOR, EAKIN,
BEFORE: BAER, TODD, GREENSPAN, McCAFFERY and JJ.
OPINION GREENSPAN. Justice resident for- Virginia Riddle is West
Harry (Appellant) Electric by Allegheny City as an electrician merly employed (ACE) In Pittsburgh, Pennsylvania. August Appel- right described as shoul- lant sustained a work-related began paying accepted der tendonitis. ACE per benefits in the amount compensation workers’ $480.60 calculated on a stipulated week. The benefits were based weekly salary per week. $720.86 notified that his benefits April Appellant fully he had recovered as of would be terminated because challenged March the notice of termi- injury. to amend the of his sought description nation and On 25, 2005, A. Compensation Judge Cheryl March (WCJ denied Ignasiak Ignasiak) petition, finding *3 yet fully August had not recovered from his 2000 Appellant injury. accepted testimony work the of the Ignasiak WCJ treating physician Appellant perform light- who released the duty Appellant permitted description work. was to amend bursitis, with impingement of his include subacromial tear, bicep rotator cuff and tear in the head of the tendon long in right the shoulder area. 9, 2005, release, treating March the given physician’s
On a of petition suspension Appel- ACE filed for modification or that, lant’s workers’ benefits. compensation alleged ACE skills, education, considering experience, his and work age, area, in the a availability geographical Appellant relevant had a earning capacity requiring residual decrease benefits. presented testimony of its support petition, ACE James DeMartino, a expert. Appellant peti- vocational answered by denying allegations. Appellant tion ACE’s rebutted ACE’s with voca- testimony report evidence his own and his tional P. Evans. expert, Celia ACE, DeMartino that after evalu-
On behalf of Mr. testified survey he a labor market for the ating Appellant performed Virginia prepared three-part area in West and Wheeling Memo, (EPA). at WCJ report assessment earning power ¶ 4(d). EPA, several avail- Mr. DeMartino identified In this tech- pharmacy sales including representative, positions, able Overall, five nician, laborer, inventory clerk. and plastics two were Wash- Wheeling, Virginia, were in positions nearby in the others were Pennsylvania, and several ington, by identified Mr. DeMar- positions None of the State of Ohio.1 where was Pittsburgh, Pennsylvania Appellant tino were injury. at the time of his working August from 2005 to hearings May held six Ignasiak
WCJ During and reports testimony.2 accepted expert 2006 and Appellant petition asked February hearing, EPA, that in ground developing be dismissed on the alia, inter geographical not with complied, had Act of the Section requirement 512(2).3 306(b)(2), Ignasiak In August WCJ Ohio possesses driver’s license that lists his father's an Ohio as his own. address positions proposed by Mr. testimony whether the 2. The centered on skills, age, Appellant given edu- appropriate were for his DeMartino cation, Ignasiak Mr. DeMartino's experience. work WCJ credited Evans, Appellant's expert. testimony Appellant and Ms. over that of challenged credibility Although Appellant the WCJ's determinations (WCAB) Compensation Appeal Board the Workers' before Court, grant appeal on that we did not allowance issue. published Compensation Act is at 77 3. Section of the Workers' part, provides In relevant P.S. 512. (1) compensable disability partial in character caused For per difference sixty-six ... and two-thirds centum of the wages injured employe ... and the between the employe thereafter ... of the (2) *4 by employe "Earning power" determined the work the is shall be upon expert opinion evi- capable performing and be based shall listings agencies department, job with of the dence which includes job placement agencies in the usual private and advertisements Disability partial apply if the employment in character shall area. can, considering employe perform previous work or the is able to his education, skill, age experi- employe's productive and work residual ence, gainful employment engage any kind other of substantial employe employment area in which the lives which exists in the usual employe live in this the does not If within this Commonwealth. Commonwealth, where the the usual then vacancy specific job apply. employer has a shall If the occurred Further, Appellant’s request.
denied the WCJ relied on Mr. EPA DeMartino’s for Wheeling, Virginia grant West to modification petition and reduce Appellant’s benefits to Memo, per week effective September $279.62 2005.4 WCJ ¶¶ 4(d). 8(b), at appeal
On to the Workers’ Compensation Board Appeal (WCAB), Appellant contested the WCJ’s reliance on the EPA on several grounds, whether Mr. including DeMartino correct- ly developed the EPA by focusing on Wheeling, Virginia, West lived, where rather than on Pittsburgh, Pennsylva- nia, where he worked at the time of his injury. November 2006, the WCAB affirmed the reduction of benefits.
Appellant appealed and raised the same issue Common- wealth Court. The Commonwealth Court held that ACE was not precluded from a obtaining modification of benefits based job on availability Ohio, Virginia, Pennsylvania or because a Appellant had residence in West Virginia and Ohio, stayed with his father in where he also held a driver’s license. Bd., Riddle v. Workers’ Comp. Appeal 940 A.2d (Pa.Commw.2008). to the According Court, ACE was not restricted to the Pittsburgh, Pennsylva- nia area in conducting the EPA. Id. granted
We Appellant’s Petition for Allowance of Appeal on the following issue:
Under Section of the Compensation Act, 512(2), may an employer meet its burden of proof to justify modification of an award workers’ compensation injured benefits to an non-resident employee, based on an which [EPA] focused on the location of the employee’s employe capable performing, employer shall offer such to employe. accurately In order assess the employe, require insurer employe to submit to an by expert interview by vocational who is selected the insurer and qualifications who meets the minimum department established through regulation. expert comply The vocational shall with the Code of Professional Ethics pertaining for Rehabilitation Counselors expert conduct of witnesses. 512(l)-(2) added). (emphasis Ignasiak suspension WCJ petition. dismissed the *5 residence, as to the opposed injury location where the occurred?
Appellant the Commonwealth argues Court erred the decision of the to affirming modify WCAB his benefits. According Appellant, to under the plain language 306(b), the EPA competent was not evidence to prove Appel- lant’s earning power. Appellant states that the EPA should have focused on the Pittsburgh only, where Appellant’s occurred, than rather on the area. Wheeling law, Pennsylvania
Under an employee who is dis- partially abled because of a work-related injury may receive compensa- tion to a equal percentage of the difference pre- between his injury wages and his after the injury. 77 P.S. 512(1).5 Here, § sought ACE to reduce Appellant’s benefits by showing an increase in his earning power after the treating physician released to light-duty work. The statute describes the means which ACE satisfy could its burden of proving earning statute, power. According to the earning power is a function of the work the employee is “capable performing” “in availability the usual employment 512(2). § area.” 77 P.S. ACE could its carry burden of proof by introducing expert testimony as to both elements. With injured respect employees to who do not live in Pennsylvania, “the usual employment area where the injury occurred shall 512(2). apply.” Here, 77 according to Appellant, the occurred Pittsburgh, Pennsylvania so an appropriate EPA should have focused on Pittsburgh.
In to response Appellant’s challenge to the Commonwealth Court’s decision affirming benefits, the reduction of his ACE raises the following arguments. ACE claims that the statute merely requires that the area of injury Pittsburgh—must be — used starting point developing an EPA for Appellant. ACE, According the statute permitted its expert develop an EPA for additional areas with which Appellant had eco- ties, nomic and vocational such as parts of West Virginia and Ohio, in order to discover his “true” earning power. = (pre-injury wage earning
5. The x formula is: benefits %662h — 512(1). power). own claim, adopt that we should its making argues this than a strict reading of the statute rather interpretation in certain absurd results obtaining or else risk language *6 the that we affirm proposes instances. ACE Appellant’s EPA it submitted demonstrates because the Court Assembly “true” as intended the General earning power 306(b). these in turn. arguments We address Section 306(b)(2) employment that “the usual Section states when an injury apply” employer where the occurred shall an 77 develops employee. an EPA for out-of-state 512(2) added). it although § ACE contends that was (emphasis EPA under the statute to conduct an for Pitts- required area, its evidence of could burgh Appellant’s areas, such as job availability Wheeling, also include other effect, that of Ohio. ACE claims Virginia, parts it to choose which areas gives leeway geographical statute power to use for a “true” evaluation of as Appellant’s earning the area where the occurred. long injury ACE also uses reject interpretation
We ACE’s broad of Section 306(b)(2). In its common as well as usage legal parlance, phrase mandatory. Prop. “shall” is Aviation Chanceford Bd. Pa. Township Supervisors, 592 923 Chanceford of (8th (2007); Law 1407 Dictionary A.2d 1104-05 Black’s 1903(a) ed.1999); § 1 construction of (statutory see Pa.C.S. words). that, clearly The statute states for an patently resident, the “usual area” for employment pur out-of-state EPA of is defined as that area “where the poses developing 512(2). § injury language occurred.” 77 P.S. Additional de noting exclusivity geographical of this limitation would have superfluous legislature’s policy been as the choice is expressed in the statute. “When the words of a statute unambiguously are clear and free all the letter of it is not to ambiguity, from disregarded pretext pursuing spirit.” be under the of its Indeed, § we the definition of expand Pa.C.S. not the “usual area” under the of pretext fulfilling intent to “true” Assembly’s Appellant’s General determine reason, reject 1921. For this we earning power. Pa.C.S. that, ACE’s claim in its effort to reduce amount benefits only job availability not it introduce evidence pays, may it in other areas that occurred but also the area where the it believes are relevant. has
Next, contention Section we consider ACE’s strictly. if read applications conflicts and unreasonable internal statutory requirement perform claims that the occurred” conflicts with EPA in the area “where interpretation statutory requirement this Court’s per- in the EPA that identify “capable work 512(2). relies on case forming.” argument version of which has pre-dating law the current to the current statute. application no 1996,6
Before it was amended in
the Workers’
employers seeking
Act did not delineate standards for
modifi
of benefits. Kachinski v.
suspension
cation or
*7
Co.),
240,
Bd.
516 Pa.
532 A.2d
Comp. Appeal
(Vepco Const.
(1987).
Kaehinski,
374,
376
In
this
filled that gap
Court
an
or
holding
employer
sought
suspen
that
who
modification
had to
evi
compensation
“produce
sion of workers’
benefits
job
a
...
a then
... which
in
open
fit[ ]
dence of
referral
to
...
the
for which the claimant
occupational category
[w]as
If
medical clearance.” Id. at 380.
the referral did not
given
result in
then benefits would continue.
Id. The
held that
of benefits was
when
appropriate
Court
modification
an
showed “that other work
available
employer
actually]
[was
capable
obtaining.”
to the claimant which he
Id. at
[was]
of
added).
cases,
(emphasis
subsequent
377
In
the Common
standard,
wealth
clarified the Kaehinski
in relevant
Court
injured
did not
that an
part, by holding
employers
prove
job
job
was
of
an
if that
employee
“capable
obtaining”
existing
See,
required
lengthy
e.g., Karpulk
a
commute.
Workers’
(Worth
Co.),
Bd.
708 A.2d
516-17
Comp. Appeal
denied,
(Pa.Commw.1998),
557 Pa.
area.7 proposes As a that we ACE should not read 306(b)(2) strictly and instead adopt its broader inter- pretation reflecting as better the intent of the General Assem- bly to reintegrate injured workers into the work force. its making argument, misinterprets purpose the statute. itWhen amended Section to add subsec- (2) tion in Assembly replaced General this Court’s Kachinski see Edwards v. Work- 512(2); approach. (MPW Comp. Services, Inc.), ers’ Bd. Appeal Indus. A.2d (Pa.Cmwlth.2004) 648, 651 that the (holding 1996 amendment Kachinski eliminated the requirement injured that an employ- ee job).8 be offered an actual The legislature amended the Act and added the definition of “earn- ing power” at issue here well as a new standard for proving earning power. The current Section does not require that the employer provide injured employee job with a or attributes, specify location, such as geographical for that as this done in Kachinski. previously Court had 1) Hill, proposes following 7. ACE Cherry a Jersey, scenarios: New Erie, resident who person Philadelphia injured works as a sales in Milwaukee, 2) Wisconsin, Pennsylvania; a injured resident who is Wilkes-Barre, Pennsylvania, temporary assignment while on for a Lan- 3) employer; caster Philadelphia Delaware resident who works injured special and is Indianapolis, on mission to According Indiana. ACE, conducting only injuries an EPA place where the took in these situations would lead injured to absurd results because employees "capable performing" would not be jobs beyond located reason- commuting able distances. (2), By adopting legislature subsection lowered the Kachinski proof by allowing burden of employer to obtain modification or suspension earning power proved through benefits on evidence of *8 expert testimony by providing rather than evidence that the claimant employment. 512(2) Kachinski, Compare had obtained § sense, legislature 532 A.2d at replaced 380. In this this Court’s approach. Kachinski The apply exclusively Kachinski test continues to 24, only 1996, place in where cases took before June like the concurrence, Bd., by case cited Comp. Appeal Lewis Workers’ (2007). 1996, 32.1(a) § A.2d 922 See of Act June P.L. No. 57 (quoted § the historical providing note to 77 P.S. that the (2) applies addition only injuries of subsection to claims for which were amendment, 24, 1996). suffered on or after the effective date of the June employer We do not hold here that an who meets the Kachinski test Indeed, would not meet the Section test. under certain circum- stances, employer be able to meet both tests. Edwards, Rather, 512; at the sole § see 858 A.2d 651. 306(b) is to the payment of current Section describe purpose a calcu disability provide schedule for formula for partial injured § an benefits. 77 512. The lating employee’s P.S. statute defines how is calculated for different claimants, out-of-state residents. categories including of 512(2). P.S. only approxi-
The calculation under most circumstances earning power. majority mates a claimant’s “true” For the injured job, formula is a employees on because it their fairly approximation accurate reflects in pursuing employment injury. market and choices before the Indeed, the Assembly weighed competing policies General effectively policy this area of law and made choice. We must defer to the dictate and Assembly’s explicit General expression by cannot alter the clear policy General Assembly under the its guise “pursuing spirit.” Pa.C.S. § 1921. Assembly evaluating
The General defined the method for that “earning power” unequivocal mandatory language iden- the area where the injury tifies occurred as the relevant 512(2). reason, location for non-residents. 77 For this developing we hold that when an EPA for such an employee, employer job availability analysis an must focus its on the area occurred, the injury Pittsburgh. where here Id. The employer enlarge has no discretion to its search and focus on or multiple yield other areas that it decides could a “true” assessment of injured even if employee’s earning power, these additional with the area overlap areas where the occurred. See at ACE’s Brief evidence,
Finally, to its turning ACE claims that EPA its included the Pittsburgh area where oc- Appellant’s injury curred. This is not supported by contention WCJ Ignasiak’s of fact or the record. findings Ignasiak WCJ found focusing ACE submitted an EPA on the Wheeling, Memo, ¶¶ 4(d). 8(b), area. at Virginia WCJ The record supports that conclusion. Mr. DeMartino that he testified prepared Wheeling an EPA for and the areas surrounding *9 N.T., 9/14/05, Mr. at
because is where Riddle resides.” “[t]hat EPA proposes Wheeling 145-46. ACE that because the for jobs for in Pittsburgh, approxi- included incidental search mately away, justify 75 miles then the EPA is sufficient to 306(b)(2). modification of benefits under The conten- Section fails, however, tion because it is neither borne out the facts by nor Mr. DeMartino that he supported by statute. testified Virginia, found five two in positions Wheeling, West Wash- and several others in the ington, Pennsylvania, nearby State 28, 2005, Ohio. See jobs EPA at 5. February dated No were found in and this fact undermines Pittsburgh, Pennsylvania, position. importantly, More statute mandates a 512(2). Pittsburgh. focus on It is not for sufficient ACE to look at as a satellite market of Pittsburgh merely 512(2). Also, Wheeling conducting when the EPA.9 77 P.S. areas, may ACE not conduct its EPA in such multiple 306(b)(2), Wheeling and here. Pittsburgh Under Section ACE had no latitude in which markets are choosing relevant to an EPA for Appellant. statutory ACE not avoid this pre- in order to reduce or eliminate its scription obligation pay benefits. If an EPA focused Pittsburgh jobs, on reveals no then reduction of benefits is not authorized under Section 306(b)(2).
We hold that the EPA submitted was insufficient to 306(b). justify modification of benefits under The hereby decision of Commonwealth Court is reversed and ACE’s Petition for Modification Suspension or is denied.
Chief Justice CASTILLE and Justice EAKIN and join McCAFFERY the opinion. concurring opinion
Justice SAYLOR files a in which Justice join. BAER and Justice TODD By holding, Pittsburgh this we do not decide whether is a satellite encompassed by market within the “usual area” an EPA Wheeling, Virginia. Answering question unnecessary for given improperly our that ACE EPA conclusion focused its on an area Pittsburgh, Pennsylvania. other than SAYLOR, concurring. Justice *10 that, for its indication except majority opinion, join
I
306(b)
the Workers’
to Section
the 1996 amendments
with
“re-
512,
Assembly
Act,
General
v.
Kachinski WCAB
under
approach
this Court’s
placed”
(1987).
See
Co.),
Court market the use of a labor alternatively, through availability, or via the Kachinski Section survey prescribed alia, of an available inter identification entailing, method See, e.g., Rebeor WCAB capabilities. the claimant’s within (Pa.Cmwlth.2009). Thus, while (Eckerd), 976 A.2d with the opening is consistent majority’s characterization 512(2) 306(b)(2), (providing of Section passage “ the em- determined the work shall be ‘[ejarning power’ expert based upon and shall be performing is ploye capable job listings agencies includes with which evidence opinion advertise- job placement agencies private the department, area”), a substan- suggests it in the usual ments decisional prevailing as reflected practice tial shift in actual of whether I would leave the issue Accordingly, law. Kachinski case replaced amendments before the Court. squarely question which join concurring this BAER and Justice TODD Justice opinion.