            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sheila Behr,                         :
                                     :
                          Petitioner :
                                     :
                  v.                 : No. 1445 C.D. 2015
                                     : Submitted: January 8, 2016
Workers’ Compensation Appeal         :
Board (School District of            :
Philadelphia),                       :
                                     :
                          Respondent :


BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                              FILED: February 16, 2016



               Sheila Behr (Claimant) petitions for review of the order of the
Workers’ Compensation Appeal Board (Board) affirming the decision of a
workers’ compensation judge (WCJ) that granted the petition of the School District
of Philadelphia (Employer) to suspend Claimant’s compensation benefits under the
Pennsylvania Workers’ Compensation Act (Act).1 We affirm.
               In November 1995, Claimant injured her back while in the course and
scope of her employment as a kindergarten teacher for Employer. In June 1997, by
WCJ decision, Claimant’s injury was determined to be a work-related exacerbation

      1
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1 – 1041.4, 2501 – 2708.
of pre-existing spondylolisthesis at L4-5 and nerve impingement resulting from a
bulging/protruding disc.        Claimant received $509.00 in weekly compensation
benefits based on an average weekly wage of $1,091.00.
              In December 2012, Employer filed a petition to suspend Claimant’s
benefits asserting that she had voluntarily withdrawn from the workforce as of
August 28, 2012. Reproduced Record (R.R.) at 1-6.2 Claimant filed an answer to
the petition denying all of the material allegations raised therein, and hearings
before the WCJ ensued.
              Employer presented the deposition testimony and report of Bruce
Janke, M.D., a board-certified orthopedic surgeon, who stated that he examined
Claimant on August 28, 2012.             Dr. Janke testified that Claimant provided a
description of her injury and an extensive treatment history, noting that she did not
have surgery or injections, but she had used physical therapy. He stated that
Claimant was not undergoing treatment at the time of his examination except for
her own home exercises and aspirin to treat pain that she described as intermittent
and unchanging for the past five years.
              Dr. Janke testified that upon examination, Claimant had a normal gait
and normal lumbar spine alignment without any muscle tenderness, and although
Claimant had tenderness along the sacral junction, she had good forward and


       2
         In December 2012, Employer also issued a Notice of Ability to Return to Work, LIBC-
757, alleging that Claimant could return to limited duty work per the attached medical report of
Bruce Janke, M.D., and advising Claimant that she had an obligation to look for available work;
that proof of available employment may jeopardize her right to receive ongoing benefits; and that
she had the right to consult with an attorney to obtain evidence to challenge Employer’s
contentions. See Exhibit ES-1 at 16-17. Section 306(b)(3) of the Act, added by Act of June 24,
1996, P.L. 350, 77 P.S. §512(3), requires Employer to provide such notice as a prerequisite to
seeking a modification or suspension of benefits.


                                               2
lateral flexion of her back. He stated that his examination of her lower extremities
demonstrated normal alignment and no tenderness, deformities, crepitus, or pain on
range of motion. He testified that he reviewed and adopted the findings of the
1999 and 2001 reports of Dr. Arnando Mendez, which indicated that Claimant’s
complaints were consistent with degenerative spondylolisthesis and an aggravation
thereof by her injury. He stated that while Claimant was not fully recovered, she
had reached maximum medical improvement and could return to work at a
sedentary job with restrictions of lifting up to 10 pounds while standing;
occasionally lifting 20 pounds; standing for no more than three hours per day; and
sitting for up to six hours per day.
             Dr. Janke opined that Claimant suffered from chronic low back pain,
spondylolisthesis, and lumbar disc disease and that her condition did not warrant
treatment beyond her home exercise and occasional aspirin. R.R. at 46, 48. He
also opined that Claimant could return to her pre-injury job as a kindergarten
teacher with the foregoing restrictions. Id. at 47, 48.
             Claimant presented the deposition testimony of Robert Sing, D.O.,
board-certified in family practice, sports medicine, and emergency medicine, who
examined Claimant on June 7, 2013. Dr. Sing testified that Claimant presented
with lower back pain radiating into the lower extremities and that he noted a
normal gait without pain or assistive devices. He stated that Claimant related that
she had completed her physical therapy ten years earlier and has not undergone any
formal treatment since that time, choosing to engage in a home exercise program
and he did not believe that any further treatment would benefit her condition. Dr.
Sing said that he had a general idea of Claimant’s exercise program, but he was not
aware of any specific exercises that she performed and did not ask her regarding


                                           3
her daily activities beyond her exercise program. Dr. Sing conceded that while
reviewing documentation from the time of injury was essential to understanding
Claimant’s current condition, he did not review any medical records from the time
of her injury. However, he stated that he did review Dr. Janke’s report and an x-
ray from June 2013.
             Dr. Sing opined that Claimant suffered from grade one anterior
spondylolisthesis with severe degenerative disc disease and that she cannot return
to her job as a kindergarten teacher. He stated that crucial to this diagnosis was
Claimant’s instability, a fact noted by her orthopedic surgeon in 1997. Dr. Sing
testified that he would impose total restrictions of no bending, crawling, stooping,
climbing, squatting, and kneeling and a ten-pound restriction on lifting, pulling,
and pushing on a limited basis. He stated that he did not ask Claimant whether the
restrictions and limitations would impede her return to work and did not ask how
the work-related injury affects her daily life.      Nevertheless, he opined that
Claimant could return to work if his restrictions were met.
             Claimant testified that she was 78 years old and described the manner
in which she sustained her work-related injury. She explained that she continues to
suffer from “constant pressure pains and twinges that go across [her] back” and
that the firmness of the muscle through exercise “keeps the back from hitting the
nerve and making it worse.” R.R. at 16. She stated that the last time that she saw a
doctor or physical therapist “had to have been longer than five years ago,”
explaining that the original water therapy that she had learned “kept things livable
for me.” Id. She testified that she predominantly performs water exercises in a
pool and takes 2 aspirins every 12 hours when she feels pain, adding that she does
not take them regularly and does not need to take them at all if she does her


                                         4
exercises. Id. at 17. She also stated that she currently lives alone in an apartment
and does all of her own cooking and some cleaning and that she owns a car and
occasionally drives. Id. at 18, 19.
              Claimant testified that she moved to Florida in 1997 and has not
sought out any employment since that time. R.R. at 18. She stated that she is
receiving Social Security retirement benefits3 and a pension through the Public
School Employee Retirement System (PSERS) and that she is retired from working
for Employer.       Id.    Claimant testified that she cannot return to work as a
kindergarten teacher or to any employment even on a part-time basis, and
conveyed this to Dr. Sing, but that she has not discussed her condition with any
doctor in the preceding five years. Id. at 17, 18.
              In March 2014, the WCJ issued a decision disposing of Employer’s
suspension petition. The WCJ specifically accepted as credible4 and persuasive5


       3
         Claimant stated, “I tried to go for disability, and then somebody said to me you mi[ght]
as well just go for regular benefits. They keep turning you down, and it’s not going to make a
difference. So whoever told me that, that’s what I did.” (R.R. at 18).

       4
          It is settled that the WCJ is the ultimate finder of fact. Hayden v. Workmen’s
Compensation Appeal Board (Wheeling Pittsburgh Steel Corp.), 479 A.2d 631, 635 (Pa.
Cmwlth. 1984). As the fact finder, the WCJ is entitled to accept or reject the testimony of any
witness, including a medical witness, in whole or in part. General Electric Co. v. Workmen’s
Compensation Appeal Board (Valsamaki), 593 A.2d 921, 924 (Pa. Cmwlth.), appeal denied, 600
A.2d 541 (Pa. 1991). In fact, the WCJ may reject the testimony of any witness even if it is
uncontradicted. Capuano v. Workers’ Compensation Appeal Board (Boeing Helicopter Company),
724 A.2d 407, 410 (Pa. Cmwlth. 1999). Determinations as to witness credibility and evidentiary
weight are within the exclusive province of the WCJ and are not subject to appellate review.
Hayden.

       5
        The burdened party in a workers’ compensation proceeding must meet both its burden
of production and its burden of persuasion to prevail. Crenshaw v. Workmen’s Compensation
Appeal Board (Hussey Copper), 645 A.2d 957, 963 (Pa. Cmwlth. 1994).


                                               5
Dr. Janke’s testimony based on his “expertise as a practicing orthopedic surgeon
which has provided an innate familiarity in treating orthopedic injuries” like those
involved herein.    R.R. at 61.     The WCJ found that using this expertise, as
corroborated by “Claimant’s own testimony revealing that she receives very
minimal treatment for a condition that has remained relatively unchanged for
approximately five years,” and based upon Dr. Janke’s “minimal findings upon
examination,” support his determination that Claimant is capable of returning to
work in a modified capacity. Id. at 61-62. The WCJ found that this finding is also
supported by Claimant’s testimony “that she remains independent with her
activities of daily living.” Id. at 62. The WCJ noted that while Dr. Janke did not
have a specific description of Claimant’s injury, “he still performed an
examination of the lower back to find that the Claimant can return to work in some
modified capacity” which was supported by both Claimant’s and Dr. Sing’s
testimony. Id.
             The WCJ rejected Dr. Sing’s testimony as not credible or persuasive
because his “qualifications do not rise to the level of expertise necessary to render
an opinion with respect to Claimant’s orthopedic complaints” and that “a plenary
review of the record establishes that he simply does not have the requisite
understanding to render a credible opinion with respect to the Claimant’s current
condition.” R.R. at 62. The WCJ explained that “Dr. Sing is admittedly not an
orthopedic expert,” and cited his “confusing opinion with respect to the Claimant’s
current ability to work” where he first testified that he disagreed with Dr. Janke,
but he “failed to make any attempt to ascertain the Claimant’s own personal belief
as to her limitation or even how the work injury affects her daily life” and “failed
to include any specific restrictions within his written report.” Id.


                                           6
             The WCJ also found Claimant’s testimony to be unpersuasive, stating
that while it was undisputed that she “continues to suffer from some work-related
disability,” she “is simply not disabled to the extent that she would have the Court
believe.” R.R. at 63. As the WCJ explained:

             Despite her own testimony that she is able to live
             independently, including the ability to drive, cook, and
             other daily activities with minimal assistance from
             others, the Claimant continues to believe that she is
             totally disabled from working in any capacity. This is
             inconsistent with not only her allegations of disability but
             also that of Claimant’s own medical expert, who found
             her capable of working under certain restrictions….
             [B]oth Dr. Sing and Dr. Janke have testified that the
             Claimant is capable of returning to work in some
             capacity. Claimant’s apparent total inability to return to
             work is further conflicting with the unequivocal evidence
             showing that her current treatment is minimal at best.
             Surely, one who suffers from serious ongoing and
             disabling pain would be engaging in treatment beyond
             home exercises and an occasional aspirin. Undisputed
             testimony, in fact, indicates that she elected not to seek
             any formal treatment for at least five years, despite
             testifying that she remains totally disabled from the work
             injury. This is simply not the behavior of one who
             continues to be totally disabled from the work injury.
Id.
             The WCJ also found that Claimant is retired and is receiving pension
from PSERS and that Employer met its burden of proving by substantial,
competent evidence that “Claimant has effected a voluntary withdrawal [from] the
work-force to the extent that a suspension of benefits is merited.” R.R. at 63.
Accordingly, the WCJ granted Employer’s petition and suspended Claimant’s
benefits as of August 28, 2012. Id. at 63, 64. The Board affirmed the WCJ’s
decision on appeal and Claimant filed this petition for review.

                                          7
              On appeal,6 Claimant argues that the Board erred in affirming the
suspension of her benefits because the WCJ improperly relied on her receipt of a
pension in determining that she had voluntarily retired where she was required to
draw on her pension due to her age. Claimant also contends that the WCJ erred in
relying on her failure to seek employment in determining that she had retired
because she had no duty to do so until Employer first established that she had, in
fact, voluntarily retired.
              As the Pennsylvania Supreme Court has explained:

              Where the employer challenges the entitlement to
              continuing compensation on grounds that the claimant
              has removed himself or herself from the general
              workforce by retiring, the employer has the burden of
              proving that the claimant has voluntarily left the
              workforce. There is no presumption of retirement arising
              from the fact that a claimant seeks or accepts a pension,
              much less a disability pension; rather, the worker’s
              acceptance of a pension entitles the employer only to a
              permissive inference that the claimant has retired. Such
              an inference, if drawn, is not on its own sufficient
              evidence to establish that the worker has retired-the
              inference must be considered in the context of the totality
              of the circumstances. The factfinder must also evaluate
              all of the other relevant and credible evidence before

       6
          In a workers’ compensation proceeding, our review is limited to determining whether
constitutional rights were violated, whether the adjudication is in accordance with the law or
whether the necessary findings of fact are supported by substantial evidence. Milner v. Workers’
Compensation Appeal Board (Main Line Endoscopy Ctr.), 995 A.2d 492, 495 n.2 (Pa. Cmwlth.
2010). “Substantial evidence” is such relevant evidence as a reasonable person might accept as
adequate to support a conclusion. Waldameer Park, Inc. v. Workers’ Compensation Appeal
Board (Morrison), 819 A.2d 164, 168 (Pa. Cmwlth. 2003). In performing a substantial evidence
analysis, the evidence must be viewed in a light most favorable to the party who prevailed before
the WCJ. Id. Where both parties present evidence, it is immaterial that there is evidence in the
record supporting a factual finding contrary to that made by the WCJ; rather, the pertinent
inquiry is whether there is any evidence that supports the WCJ’s factual finding. Id.


                                               8
            concluding that the employer has carried its burden of
            proof.

                   If the employer produces sufficient evidence to
            support a finding that the claimant has voluntarily left the
            workforce, then the burden shifts to the claimant to show
            that there in fact has been a compensable loss of earning
            power. Conversely, if the employer fails to present
            sufficient evidence to show that the claimant has retired,
            then the employer must proceed as in any other case
            involving a proposed modification or suspension of
            benefits.
City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson), 67 A.3d
1194, 1209-10 (Pa. 2013).
            With respect to an employer’s burden in this regard, the Supreme
Court explained that “[i]f an employer is convinced that a claimant has retired, the
employer may present evidence to establish that status. . . . [T]he employer may
do so by objective facts, including the claimant’s receipt of a pension, the
claimant’s own statements relating to voluntary withdrawal from the workforce,
and the claimant’s efforts or non-efforts to seek employment.” Robinson, 67 A.3d
at 1210. Where a permissible inference of voluntary retirement obtains, a claimant
may defeat the suspension of benefits by establishing a compensable loss of
earning power through evidence that she is seeking work or that her work-related
disability has forced her to withdraw from the workforce. Id. at 1209-10; Day v.
Workers’ Compensation Appeal Board (City of Pittsburgh), 6 A.3d 633, 641 (Pa.
Cmwlth. 2010), appeal denied, 81 A.3d 79 (Pa. 2013).
            Here, the WCJ’s findings demonstrate that he did not improperly rely
on Claimant’s receipt of a pension or her failure to seek work in determining that
she had voluntarily retired, because the Supreme Court in Robinson specifically
cited these factors. Rather, the record demonstrates that the WCJ appropriately

                                         9
considered those factors as part of the totality of the circumstances in determining
that Claimant’s current loss of earnings is not related to her work-related injury
but, rather, is related to her voluntary withdrawal from the workforce.
              As indicated above, it is undisputed that Claimant receives a PSERS
pension and Social Security retirement benefits. As the WCJ also recognized, the
credited and consensus medical evidence demonstrates that Claimant is capable of
returning to work, including her time-of-injury position, with restrictions. Further,
Claimant testified that she lives independently and performs daily activities with
minimal assistance. Claimant also testified that she does not require any medical
treatment or significant medication as a result of her work-related injury. To avert
the suspension of her benefits, Claimant offered her own testimony, and no
supporting medical evidence, in an attempt to establish that her work-related back
injury prevents her from pursuing any employment. The WCJ found this evidence
to be unpersuasive. Moreover, Claimant testified that she has not sought any
employment since moving to Florida in 1997, and that she considers herself to be
retired. In accord with Robinson, the totality of the circumstances here supports
the WCJ’s conclusion that Employer met its burden of demonstrating that Claimant
voluntarily retired and was not forced to withdraw from the workforce due to her
work-related injury.      Consequently, Employer is entitled to a suspension of
benefits.7

       7
         Claimant’s reliance on Keene v. Workers’ Compensation Appeal Board (Ogden
Corporation), 21 A.3d 243 (Pa. Cmwlth. 2011), vacated, 81 A.3d 881 (Pa. 2013), on remand, 92
A.3d 897 (Pa. Cmwlth.), appeal denied, 104 A.3d 6 (Pa. 2014), is misplaced. As this Court
explained in Keene, “Claimant has disputed that she is retired, has not accepted a retirement
pension, has looked for suitable work, and has not refused any suitable work. Therefore,
pursuant to [Robinson], based on the totality of the circumstances, Employer has not met its
burden of proving that Claimant removed herself from the workforce.” 92 A.3d at 902
(Footnote continued on next page…)
                                             10
              Accordingly, the Board’s order is affirmed.




                                           MICHAEL H. WOJCIK, Judge




(continued…)

(footnotes omitted). The distinguishing facts as found by the WCJ in this case and supported by
substantial evidence are outlined above.


                                              11
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sheila Behr,                         :
                                     :
                          Petitioner :
                                     :
                  v.                 : No. 1445 C.D. 2015
                                     :
Workers’ Compensation Appeal         :
Board (School District of            :
Philadelphia),                       :
                                     :
                          Respondent :

                                  ORDER


               AND NOW, this 16th day of February, 2016, the order of the
Workers’ Compensation Appeal Board dated July 10, 2015, is affirmed.




                                    __________________________________
                                    MICHAEL H. WOJCIK, Judge
