Smith v. Workers' Compensation Appeal Board (Supervalu Holdings PA, LLC)

177 A.3d 394
CourtCommonwealth Court of Pennsylvania
DecidedJanuary 5, 2018
Docket796 C.D. 2016
StatusPublished
Cited by8 cases

This text of 177 A.3d 394 (Smith v. Workers' Compensation Appeal Board (Supervalu Holdings PA, LLC)) 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
Smith v. Workers' Compensation Appeal Board (Supervalu Holdings PA, LLC), 177 A.3d 394 (Pa. Ct. App. 2018).

Opinions

OPINION BY

JUDGE SIMPSON

Dennis Smith (Claimant) petitions for review of an. order of the Workers’ Compensation Appeal Board (Board) that affirmed an order of a Workers’ Compensation judge (WCJ) granting a modification petition filed by Claimant’s employer, Su-pervalu Holdings PA, LLC (Employer). Based upon a labor market survey showing five available positions within Claimant’s medical restrictions with an average pay of $400.56 per week, the WCJ modified Claimant’s weekly benefits to the rate of $394.63. Claimant contends the Board erred in finding substantial: evidence for the WCJ’s modification of his benefits, and that the Board further erred in concluding that the WCJ properly applied the principles established by the Supreme Court in Phoenixville Hospital v. Workers’ Compensation Appeal Board (Shoap), 623 Pa. 25, 81 A.3d 830 (2013). Upon review, we affirm as modified by this opinion.

I. Background

In February 2011, Claimant sustained a work injury to his head and neck when a case of store products, weighing approximately eight or nine pounds, fell from a shelf above him and struck his. head. A temporary notice of compensation payable, which later converted to a notice of compensation payable (NCP), described the accepted injuries as a cervical strain/ sprain. Pursuant to the NCP, Claimant began receiving benefits at the rate of $661.67 per week baséd upon an average weekly wage (AWW) of $992.50.

In November 2013, Employer filed a modification petition seeking to modify Claimant’s benefits as of April 28, 2013. Employer’s petition further alleged Claimant had an earning power of $440.00 per week, which would reduce Claimant’s weekly benefit to $368.33. Claimant filed an answer denying the material allegations of Employer’s modification petition. Employer also requested a supersedeas, which the WCJ denied.

In addition, in March 2014 Employer filed a suspension petition alleging Claimant was offered a medical procedure highly likely to cure his disability and return him to gainful employment. Although the procedure had a low potential risk, Claimant nevertheless refused the procedure. Claimant filed a timely answer denying Employer’s material allegations. Employer again requested a supersedeas, which the WCJ denied.

During the WCJ’s proceedings, Employer presented deposition testimony from Dr. Jeffrey A: Baum (Employer’s Physician), a physician board certified in orthopedic surgery. Employer’s Physician first treated Claimant for a work injury in July 2008 which resulted in numbness, tingling and pain in his upper left extremity. In December 2008, Employer’s Physician performed a'two-level cervical discectomy and fusion. Claimant did well following the surgery and returned to his forklift driver position. In April 2010, Employer’s Physician discharged Claimant from his care.

In June 2011, following his second work injury in' February 2011, Claimant returned to Employer’s Physician’s care. Claimant provided a history of his new work injury and reported symptoms of pain and spasm in his neck. Employer’s Physician continued to see Claimant over the next several months, during which time Claimant underwent physical therapy. Claimant continued to report some spasm in his neck, especially if he would repetitively extend his neck backward. .

In June 2012, Claimant returned to Employer’s Physician’s office and saw his partner, Dr. Smith (Partner Physician). At that time, Claimant had more pain and spasm in his neck. Claimant underwent a three-dimensional CT scan, which revealed that his earlier bone graft did not completely fuse the vertebral bodies. Partner Physician advised Claimant of the failure of the fusion and informed him that the standard treatment for a failed anterior fusion is to do a posterior segmental fu-sipn. Employer’s Physician testified, that studies indicated an 80% chance that the proposed surgery would resolve Claimant’s symptoms. Further,, although Employer’s Physician could .not guarantee that Claimant could return to the pre-injury job following the proposed, surgery, the doctor testified Claimant would be capable of performing some type of. employment with restrictions.

Employer’s Physician further testified that in late May or early June of 2018, he was provided with job analyses for the following positions: dispatcher for the American Automobile Association (AAA); dispatcher with Vector Security; dispatcher with St. Moritz Security Services, Inc.; and, security guard with Am-Guard Security, Inc. ••

Employér also submitted deposition testimony from a vocational rehabilitation ■counselor, Nikki Davies (Vocational Counselor). She testified that the Department of Labor and Industry approved her to conduct interviews and assess earning power under the Workers’ Compensation Act'2 (Act). Vocational Counselor first reviewed information provided by Employer’s Physician regarding Claimant’s restrictions. Claimant could not lift over 25 pounds with no repetitive overhead lifting and no repetitive neck extensions,

During an interview, Claimant provided Vocational Counselor with a history of his work injury, and his employment. Prior to working for- Employer, Claimant worked as a lot attendant for Kenny Ross Chevrolet.- Utilizing Claimant’s work history, educational background and work restrictions, Vocational Counselor performed a transferable skills analysis.

Based upon her transferable skills analysis and her interview with Claimant, Vocational Counselor identified five open and available positions within Claimant’s vocational and medical restrictions, and which were located within Claimant’s geographic area. These positions included dispatcher at AAA; alarm dispatcher operator at Vector Security; dispatcher at St. Moritz’ Security Services, Inc.; and, two security guard positions with Am Guard Security, Inc.

Vocational Counselor further testified that the weekly pay for the five .positions ranged from $360.00 to $440.00 per week. This would equate to an AWW of $400.56.

Before the WCJ, Claimant testified he worked for Employer for 27 years at different positions including forklift operator and loader.- Claimant sustained his first work injury in 2008 and began treating with Employer’s Physician, who performed cervical fusion, surgery and placed hardware in Claimant’s neck. Following surgery, Claimant returned to work as a lift operator. ■ '

After being bumped for seniority reasons, Claimant began working at the selector position, where he sustained a work injury in February 2011. Claimant was helping a lift operator put cases on overhead shelves when a case slipped and hit him in the head. Following the incident, Employer’s Physician removed him from work and prescribed therapy.

In September 2011, Claimant returned to light duty work in the dairy warehouse. He worked in that position until May or June 2012. During that time, he continued to experience pain and spasms in his neck. Employer’s Physician removed him from work in June 2012. Diagnostic studies revealed a non-union of the grafts in his cervical spine. Employer’s Physician discussed possible surgery to address the non-union of the grafts.

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Bluebook (online)
177 A.3d 394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-workers-compensation-appeal-board-supervalu-holdings-pa-llc-pacommwct-2018.