Riddle v. Workers' Compensation Appeal Board

940 A.2d 1251, 2008 Pa. Commw. LEXIS 4
CourtCommonwealth Court of Pennsylvania
DecidedJanuary 8, 2008
StatusPublished
Cited by3 cases

This text of 940 A.2d 1251 (Riddle 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
Riddle v. Workers' Compensation Appeal Board, 940 A.2d 1251, 2008 Pa. Commw. LEXIS 4 (Pa. Ct. App. 2008).

Opinion

OPINION BY

Judge COLINS.

We consider Harry Riddle’s (Riddle) petition for review of the decision of the Workers’ Compensation Appeal Board (Board) that affirmed the decision of Workers’ Compensation Judge Cheryl Ig-nasiak (WCJ), granting a Petition to Modify Compensation Benefits (Modification Petition) filed by Allegheny City Electric, Inc. (Employer), and dismissing Employer’s Suspension Petition. We affirm the Board.

In August, 2000, during the course of his employment as an electrician, Riddle sustained a work-related injury originally recognized on a Notice of Temporary Compensation Payable as right shoulder rotator cuff tendonitis. The description of injury was subsequently amended by the WCJ to include subacromial impingement, subacromial bursitis, a rotator cuff tear, and extensive bicep tearing of the right shoulder. Riddle’s average weekly wage was $720.86, with a compensation rate of $480.00.

Employer filed its Modification Petition and Suspension Petition in March, 2005, alleging that work was available within Riddle’s residual work skills, education, experience, and geographic area. 1 Employer presented the testimony of Glenn A. Buterbaugh, M.D., a board-certified orthopedic surgeon, who treated Riddle; Dr. Buterbaugh opined that given Riddle’s restriction from performing prolonged overhead work, he could not perform his pre-injury work as an electrician. Employer presented evidence regarding a labor market survey conducted by James DeMartino (DeMartino), a vocational rehabilitation specialist and certified disability manager. In support of his position, Riddle submitted the testimony of Celia Evans (Evans), a vocational counselor and evaluator. The WCJ found the opinions of DeMartino to be more credible and persuasive than those of Evans, and she determined that Riddle could perform light- *1253 duty work for forty hours per week and that work was generally available to Riddle with earnings of $301.45 per week; Riddle’s benefits were modified to partial benefits of $279.62 per week. (Decision of the WCJ, Findings of Fact Nos. 8(a) and 8(b); Conclusions of Law Nos. 1-2.)

The Board rejected Riddle’s claim on appeal that the testimony of DeMartino was not competent to establish earning capacity because DeMartino did not adequately account for Riddle’s age in identifying positions, and was mistaken as to Riddle’s supervisory experience and other abilities. 2 The Board also rejected Riddle’s argument that Employer failed to meet its burden under Section 306(b)(2) of the Act to prove job availability in the correct geographic area.

In this appeal, 3 Riddle again argues that the Board erred in affirming the decision of the WCJ, because the jobs located were not available in his labor market. Riddle avers that because he does not reside in Pennsylvania, under Section 306(b)(2) of the Act, an earning power assessment was required to have been performed in the “usual employment area where the injury occurred” — i.e., Pittsburgh, Pennsylvania. In her Findings of Fact, the WCJ summarized the testimony of DeMartino as to the Earning Power Assessment report he prepared:

d) He prepared an Earning Power Assessment report, based upon the Claimant’s geographical area and the relevant labor market. The Earning Power Assessment reviewed jobs that were available to the Claimant within the geographical area of Wheeling, West Virginia. He reviewed several different sources including America’s Job Bank, Pennsylvania Career Link Internet websites and local newspapers. He also contacted employers to inquire regarding whether the employer were hiring. He further testified that he came across current openings of jobs that were open and available and were suitable for Claimant. Based upon the Claimant’s education and employment history, he noted that Claimant would be suitable for a variety of occupations;
e) He located a position at Radio Shack, open and available, that paid between $5.15 and $10.00 per hour, 40 hours per week. The job at Radio Shack was a sales representative position. Mr. De-Martino also identified a customer service representative position at Block Buster, which paid $5.75 per hour, 32 hours per week. In both instances, he personally contacted the employer to as *1254 certain the specific job duties. The Radio Shack position was characterized as light duty work. Mr. DeMartino, thereafter, performed a site visit and met with the manager, Jason Roznick. He confirmed that this job was open and available effective February 3, 2005.
(i) Mr. DeMartino conducted an additional earning power assessment utilizing the same methods as done previously. Mr. DeMartino described additional light duty positions, such as pharmacy technician paying $5.15 per hour, 40 hours per week, a position at Falcon Plastics as laborer providing a salary of $7.50 per hour, 40 hours per week, as well as a position at Kennedy Hardware, a position at National City, a position at Home Depot, as well as a position at Cingular Wireless. All of these positions were available, and within the Claimant’s vocational capabilities.

(Decision of the WCJ, Findings of Fact Nos. 4(d), 4(e) and 4(i), italics added.) During his testimony before the WCJ, De-Martino noted that, at the conclusion of a February, 2004 meeting between himself, Riddle, and Riddle’s counsel, Riddle’s counsel had requested that the job search occur in Wheeling, West Virginia, where Riddle has a residence. DeMartino testified:

My notes where you are referring to that say that you would like copies of the reports also says, “Attorney Abes would like job search to be conducted in Wheeling.” The injury took place in a different — I guess the injury took place in the Pennsylvania area, although it is just across the border, and I agreed that yes, job search will take place near the claimant’s current residence and where the injury took place.”

(Notes of Testimony, September 14, 2005, p. 138.) In response to a question from Riddle’s counsel as to whether DeMartino could be told by the opposing side where to do the job search, DeMartino replied:

No, you can’t. I guess you requested it, but, of course, as I mentioned, I would have to do what is required by law, which is what I ended up doing. I ended up conducting it in the [w]heeling area and where the injury took place. Id. (italics added.)

Riddle testified at length as to his job search, including applications he made in person at a number of locations in the Wheeling, West Virginia area. At a December, 2005 deposition, he responded to questions from Employer’s representative as to the vicinity or areas in which he is willing to work:

A. I would like to find a job in this area.
Q. What area is that?
A. Pittsburgh-Wheeling.
Q. So you wouldn’t have a problem working in Pittsburgh?
A. No.
Q. Nor in Wheeling, West Virginia?

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Related

Riddle v. Workers' Compensation Appeal Board
981 A.2d 1288 (Supreme Court of Pennsylvania, 2009)
Rebeor v. Workers' Compensation Appeal Board
976 A.2d 655 (Commonwealth Court of Pennsylvania, 2009)

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Bluebook (online)
940 A.2d 1251, 2008 Pa. Commw. LEXIS 4, Counsel Stack Legal Research, https://law.counselstack.com/opinion/riddle-v-workers-compensation-appeal-board-pacommwct-2008.