VISTA INTERNATIONAL HOTEL, Appellant, v. WORKMEN‘S COMPENSATION APPEAL BOARD (DANIELS), Appellee.
Supreme Court of Pennsylvania.
Argued March 9, 1998. Decided Dec. 23, 1999.
Reargument Denied Feb. 25, 2000.
742 A.2d 649
David M. McCloskey, Pittsburgh, for Daniels.
No appearance for appellee.
Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.
SAYLOR, Justice.
We allowed appeal to examine two issues: (1) whether the Workers’ Compensation Appeal Board properly granted a
Appellee, Mary Daniels (“Claimant“), was employed in the housekeeping department of Appellant, Vista International Hotel (“Employer“), as a bathroom attendant. On February 21, 1989, she was struck on the head by a light fixture and suffered injury. She subsequently received workers’ compensation benefits pursuant to a notice of compensation payable. In November of that year, however, Employer filed a petition seeking a termination or suspension of benefits, alleging that Claimant had returned to work at wages equal to or greater than her pre-injury wages, suffering no residual disability. The workmen‘s compensation referee scheduled a hearing for January 4, 1990, and notice was sent to Claimant‘s last-known address.1 Although the notice was not returned by the Post Office, Claimant failed to appear at the hearing. Employer advised the WCJ that Claimant no longer resided at the listed address and provided Claimant‘s updated address. The WCJ scheduled a second hearing for February 1, 1990, and notice was sent to the new address. Again, the notice was not returned and Claimant failed to appear, nor did she contact the WCJ personally or through a representative. The WCJ heard Employer‘s evidence and subsequently entered a decision and order terminating Claimant‘s benefits.
Claimant appealed, alleging that she received only one
Meanwhile, on March 11, 1991, Claimant filed a new claim petition, alleging that, on February 5, 1991, during the course of her job with Employer, she was struck on the head by a bucket and suffered a second injury. Employer filed a timely answer denying the material allegations of the petition. Claimant also filed a petition seeking penalties against Employer for unilaterally refusing to pay medical expenses arising from the 1989 injury which were incurred after the grant of Employer‘s termination petition. Employer responded by filing a petition for review, challenging the reasonableness of further treatment or testing in relation to the 1989 work injury. The new claim petition, the miscellaneous petitions relating to the 1989 injury and the remanded termination petition were consolidated before the WCJ.
On March 25, 1992, prior to the conclusion of the hearings, Claimant injured her back during the course of her employment. Claimant was transported to the hospital, where she was examined and released, but she failed to report to work as scheduled for the next two days or to report the reason for her absence. Employer terminated her employment, concluding, in accordance with the employee handbook, that Claimant had voluntarily resigned by failing to report to work or call in sick for two consecutive days. Claimant asserted that she did not believe she was required to report her absence, as Employer was aware that she had been injured. Claimant re-
On remand, the WCJ found that Employer failed to meet its burden of establishing that all disability arising from the 1989 work injury had ceased and denied both the termination petition and Employer‘s petition for review of the reasonableness of medical expenses. The WCJ also denied Claimant‘s petition for penalties, concluding that Employer‘s contest was reasonable and its failure to pay medical expenses after the original termination order was not a violation of the Act.
In addition, the WCJ found that Claimant met her burden of proving that she suffered a compensable work-related injury on February 5, 1991, from which she continues to suffer a residual disability. Thus, the WCJ awarded total disability benefits for the period from February 5, 1991, until July 15, 1991, when Claimant returned to modified duty work, and partial disability benefits thereafter. The WCJ awarded total disability benefits beginning again as of April 2, 1992, the date Claimant‘s employment was terminated, on the ground that Claimant established a residual disability and the unavailability of suitable employment.
The Board affirmed, rejecting Employer‘s contention that Claimant was discharged for cause. It recognized that where a claimant‘s own misconduct after returning to work causes a loss of earnings, the employer is not required to resume payment of total disability benefits. The Board, however, cited the Commonwealth Court‘s decision in Hertz Penske Truck Leasing Co. v. Workmen‘s Compensation Appeal Bd. (Bowers), 168 Pa.Cmwlth. 657, 651 A.2d 1145 (1994), rev‘d, 546 Pa. 257, 684 A.2d 547 (1996),3 for the proposition that “a reason which arguably is not the claimant‘s fault is clearly not a viable reason for a discharge.”
It is now clear that “[a]n employer carries a heavy burden of proof where it seeks to terminate a claimant‘s benefits, and a claimant who has been separated from employment effectively enjoys a presumption that such separation occurred through no fault of his own even when the issue is suspension.” For this reason, “in order to prevail [on a petition for suspension], Employer has an affirmative burden to prove either that Claimant‘s termination was voluntary, or that he was dismissed for good cause.”
Accordingly, it is clear that to prevail on its termination/suspension petition Employer had to establish that Employer had good cause to terminate Claimant and, thus, Claimant‘s loss of earnings was due to her own willful misconduct. Accordingly, the WCJ did not err in so placing the burden on Employer.
Vista Int‘l, 683 A.2d at 352-53 (citations omitted; emphasis in original).
In this appeal, Employer first contends that the Board exceeded its authority under
As the Commonwealth Court correctly recognized, however, this Court‘s decisions in Cudo v. Hallstead Foundry, Inc., 517 Pa. 553, 539 A.2d 792 (1988), and Joseph, 522 Pa. at 154, 560 A.2d at 755, establish that the Board‘s authority to grant a rehearing is not strictly limited according to these enumerated statutory provisions. Rather, the Court has held that the Board has the ability to grant a rehearing in appropriate circumstances where the interests of justice require. See Cudo, 517 Pa. at 557, 559, 539 A.2d at 794-95; Joseph, 522 Pa. at 158-59, 560 A.2d at 756-57. Nevertheless, the Board‘s power is not limitless but must be exercised in a manner that is generally consistent with the policies and provisions of the Act. Additionally, in order to allow for appropriate review, the Board may not rest a decision to grant a rehearing solely upon the fact that it has broad powers to do so, but instead, must specify the basis for its determination.
[i]f a party fails to file an answer and/or fails to appear in person or by counsel at the hearing without adequate excuse, the workers’ compensation judge hearing the petition shall decide the matter on the basis of the petition and evidence presented.
In a proceeding on a claim petition, the claimant bears the burden of establishing a work-related injury rendering the claimant incapable of performing the time-of-injury job. If the employer asserts that the claimant can perform some work within restrictions, the employer bears the burden of proving that suitable employment is available. See Kachinski v. Workmen‘s Compensation Appeal Bd. (Vepco Constr. Co.), 516 Pa. 240, 244-45, 532 A.2d 374, 376 (1987) (citing Barrett v. Otis Elevator Co., 431 Pa. 446, 458, 246 A.2d 668, 674 (1968));7 see also Reinforced Molding Corp. v. Workers’ Compensation Appeal Bd. (Haney), 717 A.2d 1096, 1101 (Pa.Cmwlth.1998), appeal denied, —— Pa. ——, —— A.2d ——, 1999 WL 62221 (Feb. 11, 1999).
Here, the WCJ specifically found that Claimant satisfied her initial burden by proving that she “suffered a disabling compensable work-related injury on February 5, 1991, from which she continues to suffer from a residual disability.” The WCJ thus awarded total disability benefits for the initial period following her injury and partial disability benefits from the
In Howze v. Workers’ Compensation Appeal Bd. (General Elec. Co.), 714 A.2d 1140 (Pa.Cmwlth.1998), the Commonwealth Court considered the appropriateness of an award of partial disability benefits following a claimant‘s involuntary discharge. The claimant sustained a work-related injury to his lower back and received benefits pursuant to a notice of compensation payable. He subsequently returned to light duty work at a wage loss and received partial disability benefits, until the employer subsequently discharged him for misconduct. The employer then filed a termination petition, based in part upon the allegation that the claimant‘s loss of earnings occurred for reasons unrelated to his work injury. The workers’ compensation judge suspended benefits, and the Workers’ Compensation Appeal Board affirmed. The Commonwealth Court, however, reversed, reasoning as follows:
Disability is synonymous with loss of earning power. Indeed, “benefits for partial disability are based on the difference between pre-injury earnings and post-injury earning power....”
A suspension of benefits is only appropriate where the employee‘s earning power is no longer affected by the work-related injury. Our supreme court has stated, “[s]ince the purpose of the Act is purely to compensate a claimant for his work-related injury, the dispositive element in the suspension analysis ... is the status of the injury. Issues of misconduct or fault, if any, on the part of a claimant do not impact upon this determination.”
Because Claimant was receiving partial disability benefits at the time of his discharge, there is a presumption that his disability from the work injury continues. Employer failed to produce any evidence to prove that Claimant‘s partial disability was due to a factor unrelated to his work injury; instead, Employer produced evidence to establish only that Claimant‘s loss of the salary which he had been earning upon his return to light duty work was due to his misconduct. Therefore, consistent with the purpose of the Act—to remedy a loss in earning power due to a work-related injury—Claimant is entitled to continue to receive his partial disability benefits, calculated according to the wages he would have earned but for his misconduct.
Howze, 714 A.2d at 1142 (citations omitted; emphasis in original).
The analysis applied in Howze gives appropriate consideration to the initial cause of the loss of earnings capacity, namely, the work-related injury, rather than shifting the entire focus of the inquiry to an event, such as a subsequent termination, which interrupts the claimant‘s present income stream, but is not the sole cause of the continuing diminishment in ability to perform work. Moreover, it is consistent with the language of the Act, which defines partial disability benefits according to the loss of earnings power,
As previously noted, however, the WCJ awarded Claimant total disability benefits for the period following her termination based upon her established partial disability and the unavailability of suitable employment. Employer contends, however, that Claimant‘s loss of earnings was a result of her failure to comply with Employer‘s policy regarding procedures for reporting absences from work and was not related to the work injury. Although it acknowledges the WCJ‘s conclusion that Claimant was not at fault in connection with her termination, Employer cites this Court‘s recent decision in Hertz-Penske, 546 Pa. at 257, 684 A.2d at 547, for the proposition that fault is not relevant in this context.
In Hertz-Penske, however, the claimant was injured but returned to his time-of-injury job without any loss of earnings; therefore, he was not at such time disabled for purposes of the Act. The claimant was subsequently terminated involuntarily, which the employer contended was based upon job performance considerations. Total disability benefits were subsequently provided pursuant to a notice of compensation payable, and the employer then filed a petition to terminate or suspend, based upon the contention that the claimant had fully recovered from his injury. Thus, the Court was confronted with the issue of what caused the entire loss in earnings capacity—the injury or the asserted performance-based discharge. Since the Court determined that a factual determination was necessary to answer this question, it remanded for the necessary findings. See Hertz-Penske, 546 Pa. at 261-62, 684 A.2d at 549-50. Hertz-Penske does not stand for the proposition, as Employer seems to suggest, that fault is never relevant in a workers’ compensation proceeding. Rather, it holds that fault is not generally relevant to the initial assessment of whether the claimant‘s burden of establishing a loss of earnings capacity attributable to a work-related injury has
Here, however, Claimant‘s loss in earnings capacity attributable to her 1991 work-related injury is uncontested. Employer does not challenge the initial conferral of total disability benefits, or the award of partial disability through the date of Claimant‘s discharge. Rather, it contends that an employer may achieve a suspension of workers’ compensation benefits at any time following the occurrence of a disability by merely terminating the employee, without any fault-related assessment.
Treating an involuntary termination in the manner advocated by Employer fails to take into account the fact that the
Where a claimant establishes that a work-related injury prevents a return to the time-of-injury job, a loss of earnings capacity is established. Once such a loss has been demonstrated, the claimant should generally be entitled to benefits, unless the employer can demonstrate that employment is available within the claimant‘s restrictions. Consistent with the purposes of the Act, as well as our decisional law and the decisions of the Commonwealth Court, as a general rule, where a work-related disability is established, a post-injury involuntary discharge should be considered in connection with the separate determination of job availability rather than as dispositive of loss of earnings capacity. See generally Weber, 729 A.2d at 1252 (stating that “we have held that when a claimant returns to work under a suspension with restrictions attributable to a work-related injury (that is, the claimant returns to a modified position rather than his time of injury position), is subsequently laid off and then petitions for the reinstatement of benefits, the claimant is entitled to the presumption that his loss of earning power is causally related to the continuing work injury“). Cf. Inglis House v. Workmen‘s Compensation Appeal Bd. (Reedy), 535 Pa. 135, 141-42, 634 A.2d 592, 595-96 (1993)(analyzing an employee‘s voluntary termination in terms of loss of earnings capacity in a case in which the claimant “had engaged in full time employment for six months without pain, and had quit without good cause“).10
In summary, we hold that a claimant who has established a partial disability due to a work-related injury should generally continue to receive partial disability benefits by virtue of his loss in earnings capacity, even though subsequently discharged from employment, because the loss in earnings capacity remains extant. Whether the same claimant may receive total disability benefits depends upon whether the employer can demonstrate that suitable work was available or would have been available but for circumstances which merit allocation of the consequences of the discharge to the claimant, such as claimant‘s lack of good faith. Cf. Kachinski, 516 Pa. at 251-52, 532 A.2d at 379-80.12
The decision of the Commonwealth Court is reversed insofar as it endorses the Board‘s grant of rehearing, but is affirmed in all other respects. The case is remanded for further proceedings as necessary to the recalculation of benefits in a manner consistent with this opinion.
Justice ZAPPALA files a concurring and dissenting opinion in which Chief Justice FLAHERTY and Justice CASTILLE join.
ZAPPALA, Justice, concurring and dissenting.
I agree with the majority‘s conclusion that the Board erred by granting rehearing on Employer‘s termination petition relating to the 1989 injury, without assessing the adequacy of Claimant‘s proffered excuse for failing to appear. I respect-
The majority‘s finding to the contrary is based on the fact that Employer failed to establish “the availability of suitable employment, that such employment is available but for Claimant‘s lack of good faith, or a change in medical condition.” Op. at 659. Employer bore no such burden as the instant case involves a claim petition, rather than a petition to suspend or terminate benefits. Under these circumstances, Claimant is not entitled to a presumption of continued disability and bears the burden of establishing that her loss of earnings is attributable to the work injury.
Although the majority appears to recognize that this case involves a claim petition, it fails to appreciate the significance of this procedural status. The majority asserts that “Claimant‘s continuing disability is uncontested in this appeal; Employer seeks a suspension of benefits,” op. at 658 n. 11 (emphasis supplied). Employer‘s argument concerning the suspension of benefits upon Claimant‘s discharge from employment, however, arose while defending Claimant‘s claim petition alleging the 1991 work-injury. Thus, Employer was not attempting to suspend benefits relating to the 1991 injury as no benefits had yet been granted.1,2 This distinction is critical and renders the instant case distinguishable from Howze v. Workers’ Compensation Appeal Board, 714 A.2d 1140 (Pa.Cmwlth.1998), upon which the majority relies, and more akin to Somerset Welding & Steel v. Workers’ Compen-
The issue in Howze was whether an employer is entitled to a suspension of benefits when a claimant, who is receiving partial disability benefits as a result of returning to light duty work at a wage loss, is discharged for willful misconduct. In holding that a suspension of benefits was improper, the Commonwealth Court reasoned that “[b]ecause Claimant was receiving partial disability benefits at the time of his discharge, there is a presumption that his disability from the work injury continues.” Id. at 1142.
Unlike the claimant in Howze, Claimant was not receiving any disability benefits for his 1991 injury at the time of her discharge. Thus, she is not entitled to any presumption of continued disability. The Howze court recognized this very distinction when it stated:
This presumption [that the disability from the work injury continues] is what makes Employer‘s reliance on Somerset Welding & Steel v. Workmen‘s Compensation Appeal Board (Lee), 168 Pa. Commw. 78, 650 A.2d 114, 119 (Pa.Cmwlth. 1994), appeal denied, 540 Pa. 652, 659 A.2d 990 (1995) misplaced. Somerset Welding involved a claim petition proceeding; thus, the claimant had the burden of proof and there was no presumption that the claimant had sustained any loss of earning power from a work-related injury.
The facts of Somerset Welding are virtually identical to those in the instant case. There, the claimant incurred a work-related injury on March 26, 1991. On March 28, 1991, the claimant‘s employment was terminated as a result of his continual disregard of company policy concerning procedures for reporting off work. The claimant subsequently filed a claim petition and was awarded total disability benefits.3 The Board affirmed.
In relying on Howze, the majority makes much of the fact that Claimant continues to have residual effects of the work-injury. We have held, however, that suspension is the appropriate remedy when the loss of earnings is not attributable to the work injury, but effects of the work injury remain. See Harle v. Workers’ Compensation Appeal Board, 540 Pa. 482, 658 A.2d 766 (1995) (suspension rather than termination of benefits appropriate when claimant continues to experience residual physical impairment from work injury, but incurs no loss of earnings therefrom). This allows for the possibility that if Claimant‘s earning power at some time in the future is affected by her residual impairment from the 1991 work injury, she may seek reinstatement of partial benefits by proving only that the injury giving rise to the original claim continues and that her earning power is once again adversely affected by the injury. Id., citing, Pieper v. Ametek-Thermox Instruments, 526 Pa. 25, 584 A.2d 301 (1990).
Accordingly, I would hold that under the circumstances of this case, the Commonwealth Court erred in failing to suspend benefits as of the date Claimant was discharged from employment.
Chief Justice FLAHERTY and Justice CASTILLE join this Concurring and Dissenting Opinion.