General Electric Co. v. Workers' Compensation Appeal Board

793 A.2d 191, 2002 Pa. Commw. LEXIS 139
CourtCommonwealth Court of Pennsylvania
DecidedMarch 8, 2002
StatusPublished
Cited by2 cases

This text of 793 A.2d 191 (General Electric Co. v. Workers' Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
General Electric Co. v. Workers' Compensation Appeal Board, 793 A.2d 191, 2002 Pa. Commw. LEXIS 139 (Pa. Ct. App. 2002).

Opinion

OPINION BY

Senior Judge JIULIANTE.

General Electric Company (Employer) petitions for review of the June 14, 2000 decision of the Workers’ Compensation Appeal Board (Board) that affirmed the decision of the Workers’ Compensation Judge (WCJ) granting Employer’s modification petition in part and modifying James Myers’s (Claimant’s) benefits from $509.00 to $466.60 per week for the temporary period of ninety days. Employer contends that the WCJ erred in determining that Employer was only entitled to a modification for ninety days, which equated to the period of time that Employer subsidized the offered position. We affirm.

On September 21, 1995, while in the course of his employment with Employer, Claimant sustained a head injury. Pursuant to a notice of compensation payable, which described Claimant’s injury as: “scalp contusion/laceration, no other body parts injured,” Claimant received compensation at the rate of $509.00 per week.

On October 27, 1997, Employer filed a modification petition alleging that Claimant had been referred to appropriate work within his restrictions and that he failed to follow through on the job referral in good faith. Claimant filed an answer denying Employer’s allegations.

On June 14, 2000, the WCJ circulated a decision granting Employer’s modification petition in part and denying it in part. Specifically, the WCJ found that an available home-based customer service position with Smart Telecommunications (Smart) was referred to Claimant by Expediter Corporation (Expediter), a job service agency used by Employer. However, funding for that position, which was completely subsidized by Employer, was only guaranteed for a period of ninety days. The WCJ further found that Smart had no obligation to hire Claimant after the ninety-day period expired. Therefore, the WCJ determined that the referral was essentially to a short-term, light-duty position created by Employer. Accordingly, the WCJ granted Employer’s modification petition in part for the temporary period of ninety days and denied the petition in part as to any time thereafter.

Employer appealed to the Board on the sole issue of whether the WCJ erred in concluding that the job referred to Claimant was only available for a ninety-day period. The Board affirmed on the ground that the testimony of Stacey Mar-chione, the owner and president of Smart, supported the WCJ’s decision. Employer’s appeal to this Court followed.1

Employer contends that the record clearly establishes that Claimant was hired as an employee of Smart and that said employment relationship was set up to be an indefinite employment relationship rather than a temporary one. Employer asserts that there was no evidence of record to indicate that either Claimant or Smart knew that Claimant’s employment would last only ninety days. Further, Employer notes that Marehione testified that Smart does not fire employees after the subsidy ends if they meet the Smart requirements.

[193]*193With regard to the referred position, the WCJ found:

13d. However, inasmuch as said position was a funded position, only guaranteed for a period of ninety (90) days, and there was no assurance or obligation on behalf of Smart Telecommunications, Inc. to hire the Claimant after the period of funding ran out, said job is found only to have been temporarily available to the Claimant for those ninety (90) days. In fact, under these circumstances, the Claimant’s employer for this temporary position was, in fact, the date of injury Employer, who, through its agent, Expediter, created a job for Claimant, by agreeing to pay the Claimant’s wages and pay the cost of training the Claimant and renting the facility out of which the Claimant would have performed work for Smart Telecommunications, Inc. This is similar to the Employer having a shot-term light duty program.
13e. Therefore, inasmuch as I have found that the Claimant was physically capable of performing the job, and this job was created by the Employer to retrain the Claimant in a new field, this Judge finds that the Claimant should have attempted the job; however, since the job was only available for ninety (90) days, the Employer is only entitled to a temporary modification of the Claimant’s benefits from August 25, 1997 to November 23,1997.

WCJ’s Decision, pp. 12-13; R.R. 155-156a.

In response to Employer’s argument, Claimant contends that if the WCJ’s findings of fact are supported by substantial evidence, they must be upheld. “Substantial evidence is such relevant evidence as a reasonable person might accept as adequate to support a conclusion.” Hoffmaster v. Workers’ Compensation Appeal Board (Senco Prods., Inc.), 721 A.2d 1152, 1155 (Pa.Cmwlth.1998). “In performing a substantial evidence analysis, this court must view the evidence in a light most favorable to the party who prevailed before the factfinder.” Id. “Moreover, we are to draw all reasonable inferences which are deducible from the evidence in support of the factfinder’s decision in favor of that prevailing party.” Id.

“Furthermore, in a substantial evidence analysis where both parties present evidence, it does not matter that there is evidence in the record which supports a factual finding contrary to that made by the WCJ, rather, the pertinent inquiry is whether there is any evidence which supports the WCJ’s factual finding.” Id. at 1155-1156. “It is solely for the WCJ, as the factfinder, to assess credibility and to resolve conflicts in the evidence.” Id. at 1156. In addition, it is solely for the WCJ, as the factfinder, to determine what weight to give to any evidence. Id. “As such, the WCJ may reject the testimony of any witness in whole or in part, even if the testimony is uncontradicted.” Id.

Upon a review of the evidence, this Court believes that Marchione’s testimony supports the WCJ’s finding that the telecommunications job referred to Claimant by Expediter was temporary and not guaranteed past the period of subsidy. In particular, Marchione, the president and owner of Smart, testified that the job referred to Claimant was one hundred percent subsidized by the workers’ compensation insurance company, which in this case was Employer. Marchione Deposition (Depo.) at 34-35; R.R. 36-37a. She further testified that the period of subsidization can be anywhere from one week to “typically three months” and that the employees are notified that their employment after the subsidy is not guaranteed. Id. at 34-35, 57; R.R. 36-37a, 59a.

[194]*194Moreover, Marchione testified that since her company began operation, Expediter has referred several hundred people to Smart for these types of positions and that ninety percent of them were workers’ compensation people. However, at the time of the April 29, 1998 deposition, only two were still working for Smart. Id. at 49; R.R. 51a. Based on these numbers, Mar-chione admitted that only one percent of referrals from Expediter remained with Smart. Id. at 52-53; R.R. 54-55a.

In view of the above testimony, this Court concludes that Marchione’s testimony provides substantial evidence for the WCJ’s finding that the job referred to Claimant was a temporary position subsidized by Employer and that Claimant was not guaranteed employment beyond the subsidized period.

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Bluebook (online)
793 A.2d 191, 2002 Pa. Commw. LEXIS 139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/general-electric-co-v-workers-compensation-appeal-board-pacommwct-2002.