           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Holy Redeemer Health System,             :
                       Petitioner        :
                                         :
            v.                           :   No. 768 C.D. 2016
                                         :   Argued: May 1, 2017
Workers’ Compensation Appeal             :
Board (Lux),                             :
                      Respondent         :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE JULIA K. HEARTHWAY, Judge
        HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION BY JUDGE BROBSON                     FILED: June 6, 2017

            Petitioner Holy Redeemer Health System (Employer) petitions for
review of an order of the Workers’ Compensation Appeal Board (Board). The
Board affirmed the decision of a Workers’ Compensation Judge (WCJ), granting
the claim petition filed by Jennifer Lux (Claimant) and denying the termination
petition filed by Employer. For the reasons set forth herein, we now affirm the
Board’s order.
            Claimant worked for Employer as a telemetry R.N.                   On
October 11, 2011, Claimant sustained a work-related soft tissue injury to her
lumbar spine.    Employer accepted liability for Claimant’s work-related injury
pursuant   to    a   medical-only   Notice   of   Compensation    Payable.     On
September 18, 2014, Claimant filed a claim petition, asserting that she sustained a
lumbar sprain, facet arthropathy, and radiculitis while working for Employer on
October 11, 2011, and that she is partially disabled as a result thereof.1 Thereafter,
on September 26, 2014, Employer filed a termination petition, asserting that
Claimant      had    fully    recovered      from     her    work-related      injury    as    of
February 15, 2013.
               Claimant testified by deposition on November 11, 2014, and before
the WCJ at a hearing held on May 6, 2015. Claimant explained that in her position
as a telemetry R.N., she was responsible for watching patient heart monitors,
administering medications and IV fluids, and helping nursing assistants with
patient toileting, bathing, transporting for diagnostic studies, vital signs, and
Accu-Cheks. (Reproduced Record (R.R.) at 20a.) In order to perform these duties,
Claimant was required to bend, squat, twist, lift, carry, and maneuver patients.
(Id. at 20a-21a, 125a.) As a telemetry R.N., Claimant was paid approximately
$38 to $39 per hour and worked twenty-four hours per week, but she would also
pick up additional shifts in the wintertime. (Id. at 21a-22a, 124a.)
               Claimant testified further that on October 11, 2011, she had been
pulled to a neurology floor to work as an aide. (Id. at 23a.) Claimant explained
that she was bent over at the waist attempting to bathe and change a stroke patient
who had been paralyzed, when she experienced a sharp, stabbing, and excruciating
pain in her back. (Id. at 23a-24a.) Claimant immediately sought treatment for her
work-related injury from Employer’s emergency department and was released to
return to work in a light-duty capacity. (Id. at 30a.) Thereafter, Claimant treated

       1
         Claimant initially sought partial disability benefits from October 11, 2011, the date of
her work-related injury. (Reproduced Record (R.R.) at 4a-8a.) Claimant subsequently amended
her request and sought partial disability benefits from the date on which she started working in a
permanent care management position with Employer in February 2013, at which time she
suffered a loss of wages. (Id. at 134a.)



                                                2
with Occupational Health and Leonard A. Bruno, M.D. (Dr. Bruno).
(Id. at 25a-28a.) During that time, Claimant remained under light-duty restrictions.
(Id. at 48a, 132a.) Claimant reported that her back pain has improved since the
October 11, 2011 work-related injury, but she continues to experience pressure and
a burning, uncomfortable, dull pain in her low back, she cannot sit or stand for
prolonged periods of time, and she experiences pain with bending and lifting.
(Id. at 37a-38a, 41a, 126a, 129a.)      Claimant reported further that prior to
October 11, 2011, she did not have any problems with her back. (Id. at 29a, 38a.)
                Claimant did not have any time off of work following her
October 11, 2011 work-related injury. (Id. at 29a.) Rather, Claimant returned to a
modified-duty position with Employer in her pre-injury telemetry unit with no loss
of wages. (Id. at 30a-31a.) Toward the end of 2012, Employer’s nursing office
requested that Claimant also assist in the care management department performing
“opens.” (Id. at 31a, 132a.) This involved verbally interviewing patients and their
family members to determine the patients’ home set-ups and what the patients
were capable of doing at home, and then entering all the information obtained onto
computer assessment forms. (Id. at 31a-32a.) In February 2013, while she was
assisting in the care management department but also continuing to work modified
duty as a telemetry R.N., Employer created a permanent, available position in the
care management department and offered it to Claimant. (Id. at 44a-45a, 132a.)
Employer did not force or require Claimant to leave her modified-duty telemetry
R.N. position. (Id. at 45a.) Dr. Bruno also did not require Claimant to stop
performing the modified-duty telemetry R.N. position.             (Id. at 134a-35a.)
Claimant accepted the permanent care management position voluntarily.
(Id. at 45a.)


                                         3
            Claimant testified that in the permanent care management position,
she is paid approximately $30 per hour and works twenty hours per week.
(Id. at 32a, 124a-25a.) Claimant explained that she sometimes works more than
twenty hours per week when she has not completed her work on time or is on-call.
(Id. at 36a.) In September 2014, more than a year after she voluntarily accepted
the permanent care management position, Claimant contacted Employer’s human
resources department to determine whether she could return to her pre-injury,
telemetry R.N. position. (Id. at 33a-34a, 43a-44a.) At that time, Claimant was
informed that she could not apply for an R.N. position in the nursing department
while on light duty. (Id. at 33a.) Claimant explained that she wanted to return to
any nursing position, not specifically her pre-injury position, because she was
losing her nursing skills, she was not receiving any continuing education, she no
longer had her certifications, and she had suffered a loss in wages while working in
the care management department. (Id. at 34a, 130a-31a.) Claimant attributed the
loss in wages to her October 11, 2011 work-related injury. (Id. at 34a.) Around
that same time, Claimant returned to Dr. Bruno and requested that he release her to
return to nursing. (Id. at 44.) Claimant explained that she was not certain whether
she could return to a full-time R.N. position, but she stated that it would probably
depend on the specific position and the hours. (Id. at 131a.) Claimant explained
further that she did not think that she could perform a full-time R.N. position that
required heavy lifting or bending. (Id.) As of the May 6, 2015 hearing, Claimant
continued to work for Employer in the care management position. (Id. at 123a.)
            In support of her claim petition and in opposition to Employer’s
termination petition, Claimant presented the deposition testimony of Dr. Bruno,




                                         4
who is board certified in neurological surgery.2 Dr. Bruno first treated Claimant on
December 27, 2011. (Id. at 86a.) After obtaining a history, performing a physical
examination, and reviewing a December 6, 2011 MRI of Claimant’s lumbar spine,
Dr. Bruno diagnosed Claimant with a work-related lumbar sprain that had resulted
in lumbar facet arthropathy.3 (Id. at 86a-90a.) Dr. Bruno opined that while
Claimant is not capable of returning to her pre-injury nursing position, she is and
always has been capable of performing either light-duty or sedentary-duty work.
(Id. at 92a, 97a.) Dr. Bruno agreed that at no time in the course of his treatment of
Claimant was Claimant incapable of performing the light-duty position as a
telemetry R.N. with Employer. (Id. at 98a.) In September 2014, upon Claimant’s
request, Dr. Bruno agreed to release Claimant to perform her pre-injury nursing
position on a trial basis. (Id. at 92a-93a, 101a.) Dr. Bruno did not know whether
Claimant thereafter decided she was not able to return to her pre-injury nursing
position or whether Employer did not permit her to do so. (Id. at 93a, 101a.) To
Dr. Bruno’s knowledge, Claimant continues to work for Employer under light-duty
restrictions. (Id. at 96a.)
              On September 30, 2015, the WCJ issued a decision, granting
Claimant’s claim petition and denying Employer’s termination petition. In so
doing, the WCJ summarized the witnesses’ testimony, made credibility


       2
         In opposition to Claimant’s claim petition and in support of its termination petition,
Employer presented the deposition testimony of Neil Kahanovitz, M.D., who performed an
independent medical examination of Claimant on February 15, 2013. Dr. Kahanovitz’s
testimony, however, is not relevant to Employer’s arguments on appeal and, therefore, such
testimony will not be summarized or addressed in this opinion.
       3
         Dr. Bruno also initially diagnosed Claimant with radiculitis, but he indicated that that
condition had resolved by March 6, 2012. (R.R. at 99a-100a.)



                                               5
determinations, and made factual findings.               Ultimately, the WCJ concluded:
(1) Claimant met her burden of proving that her October 11, 2011 work-related
injury caused her to be “unable to perform her time of injury job as a [t]elemetry
[R.N.] and [that she] began to suffer a loss of earning power due to the ongoing
symptoms from the October 11, 2011 injury[,] causing her to take the [c]are
[m]anage[ment] position[;]” and (2) Employer failed to meet its burden of proving
that Claimant had fully recovered from her work-related injury as of
February 15, 2013. (WCJ’s Decision at 16.) Employer appealed to the Board,
which affirmed the WCJ’s decision. Employer then petitioned this Court for
review.
               On appeal,4 Employer argues that the WCJ committed an error of law
in granting Claimant’s claim petition.5 More specifically, Employer contends that


       4
         This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§ 704.
       5
          Employer also argues that the WCJ’s finding of fact regarding Claimant’s testimony
that she suffered from ongoing symptoms as a result of her work-related injury, which caused her
ongoing limitations on her ability to work and caused her to accept the permanent care
management position is not supported by the evidence of record. (See WCJ’s Decision
at 14-15.) While we recognize that there may be some merit to Employer’s argument, as there
does not appear to be any evidence in the record regarding the specific reasons why Claimant
accepted the permanent care management position, Employer also takes the position that the
WCJ’s finding is immaterial to this appeal. In fact, Employer reasons that whether such finding
is supported by the evidence of record is not relevant to the analysis on appeal, because the legal
question presented is not whether Claimant’s work-related injury was a factor in her decision to
accept the permanent care management position, but rather whether Claimant’s loss of earning
power was caused by her inability to perform the modified-duty telemetry R.N. position. For
these reasons, we will address Employer’s argument as solely a question of law. Thus, the only
issue to be decided in this appeal relates to whether Claimant sustained her burden of proof under
(Footnote continued on next page…)

                                                6
Claimant could not have sustained her burden of proof because Dr. Bruno’s
credible testimony confirms that Claimant was capable of performing the
light-duty position made available to her by Employer and Claimant never testified
that her ongoing limitations forced her to switch from the light-duty position as a
telemetry R.N., with some care management duties, to the permanent position in
the care management department. In support of this argument, Employer relies on
Shenango, Inc. v. Workmen’s Compensation Appeal Board (Weber), 646 A.2d 669
(Pa. Cmwlth. 1994), wherein this Court held that the claimant’s loss of wages was
not the result of his physical limitations from his work-related injury, but rather the
claimant’s voluntary decision to bid out of his pre-injury department where he had
been working in a modified-duty position with no loss of earnings. Employer
contends that this case is similar to Shenango because Claimant, like the claimant
in Shenango, “remained capable of performing work made available in her
pre-injury department and presented no evidence suggesting that she was required
to take the job” in the care management department. (Employer’s Br. at 16.)
              In response, Claimant argues that she met her burden of proving her
entitlement to partial disability benefits because the record establishes: (1) she
sustained a work-related injury while working for Employer on October 11, 2011;
(2) she returned to her pre-injury position in a light-duty capacity following her



(continued…)

the claim petition—i.e., whether Claimant affirmatively established that she has suffered a loss
of earning power as a result of her October 11, 2011 work-related injury.
        Employer did not appeal the denial of its termination petition or any issues related
thereto.



                                               7
work-related injury; (3) she was offered and accepted a second, light-duty position
with Employer in the care management department; and (4) she suffered a loss of
wages as a result of accepting the second, light-duty position in the care
management department. Claimant argues further that Employer’s reliance on
Shenango is misplaced because Claimant did not seek out the permanent care
management position, but rather Employer offered her the position, and Employer
did not present any evidence to dispute Claimant’s testimony that there were no
open and available light-duty positions in the telemetry unit that were within
Claimant’s restrictions.
             The legal question to be decided in this case is whether a claimant
who has returned to work in a modified-duty position with her pre-injury employer
at no loss of wages and who later voluntarily accepts a permanent position offered
to her by her pre-injury employer at a loss of wages suffers a loss of earning power
caused by the work-related injury. In a claim petition, a claimant bears the burden
of proving all the necessary elements for an award of workers’ compensation
benefits. Inglis House v. Workmen’s Comp. Appeal Bd. (Reedy), 634 A.2d 592,
595 (Pa. 1993).      The claimant must prove not only that she sustained a
work-related injury, but also that the work-related injury is the cause of her
disability. Cardyn v. Workmen’s Comp. Appeal Bd. (Heppenstall), 534 A.2d 1389,
1390 (Pa. 1987). “Disability” is synonymous with “earning power” and is more
specifically defined as a “loss of earning power attributable to the work-related
injury.” Landmark Constructors, Inc. v. Workers’ Comp. Appeal Bd. (Costello),
747 A.2d 850, 854 (Pa. 2000).          Under Section 306(b) of the Workers’




                                         8
Compensation Act (Act),6 a claimant is entitled to partial disability benefits if her
earning power is decreased as a result of her work-related injury. Thus, a claimant
whose earning power is not affected by her work-related injury is not entitled to
partial disability benefits, even though her earnings may be less than her pre-injury
earnings.      See Harle v. Workmen’s Comp. Appeal Bd. (Tel. Press, Inc.),
658 A.2d 766, 769 (Pa. 1995).
               The parties do not dispute that Claimant had returned to work
following her October 11, 2011 work-related injury in a modified-duty position
with Employer as a telemetry R.N. at no loss of earnings. The parties also do not
dispute that Claimant thereafter was offered and voluntarily accepted a permanent
position created by Employer in the care management department and suffered a
loss of wages or that Claimant remained capable of performing the modified-duty
telemetry R.N. position at the time that she accepted the permanent care
management position.           Rather, the parties dispute the effect of Claimant’s
voluntary acceptance of the permanent care management position and whether
such voluntary acceptance resulted in a loss of earning power attributable to
Claimant’s work-related injury. Employer urges this Court to follow our prior
decision in Shenango and hold that Claimant failed to meet her burden of proving
that her loss of earning power was attributable to her work-related injury because
Claimant voluntarily accepted the permanent care management position and was
not forced to do so by Employer. Shenango, however, is distinguishable from the
facts of this case for one very important reason: the claimant in Shenango made
the affirmative decision to bid out of his pre-injury department on a position that

      6
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 512.



                                                9
resulted in a loss of his seniority and a loss of wages. Shenango, 646 A.2d
at 670-72.
               Here, Claimant did not seek out and apply for the permanent care
management position.         Rather, Employer specifically created the position and
offered it to Claimant. Given the nature of the Act7 and its intended purpose to
protect individuals who suffer work-related injuries and given the fragile nature of
claimants, we cannot extend our holding in Shenango under these circumstances.
There is no evidence in the record to suggest that Employer forced Claimant to
accept the permanent care management position or that Employer informed
Claimant that the modified-duty telemetry R.N. position would no longer be
available to her. We cannot ignore, however, the fact that Employer, on its own,
created and offered Claimant a permanent light-duty position within her
restrictions at a loss of earnings for which it now claims no liability. Employer
could have kept Claimant in her modified-duty telemetry R.N. position with some
care management duties at no loss of earnings, or Employer could have placed
Claimant into the permanent care management position and treated such position
as a modified-duty workers’ compensation position, thereby entitling Claimant to
partial disability benefits until her work-related injury was no longer the cause of
her disability.     We simply cannot permit employers to evade the payment of
pre-injury wages or partial disability benefits by creating and offering permanent,
lower-paying positions to claimants that are within the restrictions imposed by the
claimants’ work-related injuries.         As a result, we must follow the intent and
purpose of the Act and hold that a claimant suffers a loss of earning power

      7
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.



                                               10
attributable to her work-related injury when she returns to work in a modified-duty
position with her pre-injury employer and thereafter accepts a permanent position
specifically created and offered to her by her pre-injury employer at a loss of
wages. For these reasons, we cannot conclude that the WCJ committed an error of
law in granting Claimant’s claim petition.
            Accordingly, we affirm the Board’s order.




                                P. KEVIN BROBSON, Judge




                                        11
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Holy Redeemer Health System,          :
                       Petitioner     :
                                      :
           v.                         :   No. 768 C.D. 2016
                                      :
Workers’ Compensation Appeal          :
Board (Lux),                          :
                      Respondent      :



                                    ORDER


           AND NOW, this 6th day of June, 2017, the order of the Workers’
Compensation Appeal Board is AFFIRMED.




                             P. KEVIN BROBSON, Judge
