         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Michael Hofer,                       :
                         Petitioner  :
                                     :
            v.                       : No. 73 C.D. 2014
                                     :
Workers’ Compensation Appeal         :
Board (Patton Beverage, Inc./Amguard :
Insurance Company),                  :
                         Respondents :

Michael Hofer,                       :
                         Petitioner  :
                                     :
            v.                       : No. 74 C.D. 2014
                                     : Submitted: July 11, 2014
Workers’ Compensation Appeal Board :
(Patton Beverage, Inc./Norguard      :
Insurance Company),                  :
                         Respondents :


BEFORE:     HONORABLE DAN PELLEGRINI, President Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
PRESIDENT JUDGE PELLEGRINI                 FILED: July 31, 2014


            Michael Hofer (Claimant) petitions for review of two orders of the
Workers’ Compensation Appeal Board (Board) affirming the decisions of a
Workers’ Compensation Judge (WCJ) which denied Claimant’s Petitions to
Modify Compensation Benefits (modification petitions) and Petitions to Reinstate
Compensation Benefits (reinstatement petitions).1 For the reasons that follow, we
affirm.


              On December 9, 1997, Claimant sustained an injury to his left knee
during the course and scope of his employment with Patton Beverage, Inc.
(Employer). Employer subsequently issued a Notice of Compensation Payable
(NCP) recognizing the injury as inflammation of the left knee. On April 9, 2001,
Claimant sustained an injury to his right knee during the course and scope of his
employment, and Employer issued another NCP recognizing the injury as a right
knee meniscus tear. Claimant’s benefits were ultimately suspended due to his
return to work at earnings equal to or greater than his pre-injury earnings.2


              In 2009, Claimant filed modification and reinstatement petitions
alleging that he was unable to work as of August 1, 2005, due to his work-related




       1
        The Board issued an identical opinion and order as to both appeals. By order dated
March 25, 2014, this Court consolidated Claimant’s petitions for review of those orders.

       2
          Claimant’s benefits were initially suspended on July 31, 2001. Claimant filed a
reinstatement petition in May 2003, alleging that his right knee injury worsened, and Employer
filed a Petition to Terminate Compensation Benefits (termination petition) in December 2003,
alleging that Claimant had fully recovered from his right knee injury as of December 1, 2003. A
WCJ granted Claimant’s reinstatement petition, reinstating benefits from May 28, 2003, through
November 2, 2003, and suspending benefits effective November 3, 2003, and dismissed
Employer’s termination petition. Employer filed another termination petition in 2005, alleging
that Claimant had fully recovered from his left knee injury as of February 4, 2005, which the
WCJ dismissed. In that decision, the WCJ characterized Claimant’s left knee injury as
degenerative arthritis.




                                              2
knee injuries.3     Before the WCJ, Claimant testified that he quit working for
Employer in July 2005 in order to receive social security disability benefits. He
acknowledged that a position remained available to him if he wanted to continue
working for Employer at that time. Claimant stated that he has not worked in any
capacity or looked for work since July 2005, explaining that he does not feel
capable of returning to work due to his knee pain. Claimant testified that he
considers himself to be retired, but he would consider returning to work if a
position that allowed him to primarily remain seated became available and “if it
sounds like the best idea to me.” (April 13, 2010 Hearing Transcript at 20). He
further explained that he continues to take prescription pain medication for his left
knee, and that he had treated with two doctors at Blair Orthopedics, but had not
seen either doctor since July 2005.


              Claimant also presented the deposition testimony of Vincent Morgan,
M.D. (Dr. Morgan), who is board certified in physical medicine and rehabilitation
and examined Claimant on October 26, 2010. Dr. Morgan diagnosed Claimant
with chronic left knee pain with a history of an open meniscectomy and subsequent
development of progressive degenerative arthritis with a high tibial osteotomy in
2000, and chronic right knee pain with a history of a large meniscus tear and
subsequent medial meniscectomy in 2001, followed by a unicondylar arthroplasty
of the right knee in 2003. Based on his examination, Dr. Morgan opined that
Claimant would not be physically capable of performing the type of work he

       3
         Claimant also filed two Petitions for Review of Medical Treatment and/or Billing
(review petitions), which the WCJ granted. However, the review petitions are not at issue in this
appeal.




                                               3
previously performed for Employer because the nature of the work was heavy at
times and would require Claimant to carry objects for significant distances. He
further opined that Claimant will require a left knee replacement within the next
five years and ultimately will require a right knee replacement as well.


             Employer presented the deposition testimony of Thomas Muzzonigro,
M.D. (Dr. Muzzonigro), a board certified orthopedic surgeon who examined
Claimant on January 5, 2011. Dr. Muzzonigro testified that at the time of his
examination, Claimant stated that he had intermittent knee pain which became
worse with various stressors, such as walking up or down stairs or squatting.
However, he testified that Claimant could still perform his daily activities with
mild limitations. Dr. Muzzonigro explained that Claimant was not actively treating
for either knee at the time of the examination except for taking Celebrex
intermittently. Based on the physical examination and his review of Claimant’s
medical records, Dr. Muzzonigro ultimately opined that Claimant could still
perform the work activities he had been doing at the time he quit working in July
2005.


             The WCJ found that Claimant’s loss of earnings as of August 1, 2005,
was not related to his work injuries. In so finding, the WCJ noted:

             Claimant continued working his pre-injury job for two
             years before stopping in 2005. During this time,
             Claimant had little treatment for his knees. While
             Claimant suggested that he stopped working because …
             he could no longer do the job, his testimony in this regard
             was less than clear. Specifically, Claimant said that the
             true reason that he left work was to go on disability,
             presumably Social Security disability. Claimant offered

                                          4
             no medical evidence specifically establishing that his
             knee injuries were the reason for his disability, or that he
             treated for his knees when he stopped working. In fact,
             Claimant had not treated for his knee problems for years,
             and there was no evidence that his knees were giving
             Claimant more problems when he stopped working. …
             Finally, if Claimant’s knees were truly the motivating
             factor in his discontinuance of work, it would be
             reasonable to expect that he would not have waited four
             years to raise it as an issue…


(WCJ’s June 23, 2011 Decision at 5).


             The WCJ found Dr. Morgan’s testimony to be credible, but only to the
extent that it addressed the condition of Claimant’s knees at the time of his October
26, 2010 examination. Because Dr. Morgan did not examine Claimant prior to that
date and because “Claimant’s treatment for his knees between 2003 and 2010 was
sporadic at best,” the WCJ rejected Dr. Morgan’s testimony to the extent that he
offered any opinions of Claimant’s knee conditions prior to his examination. (Id.
at 4). The WCJ rejected Dr. Muzzonigro’s testimony that Claimant could return to
his pre-injury position as of January 5, 2011, noting that this opinion was
inconsistent with the testimony that Claimant’s work was heavy at times and with
Claimant’s well-documented advanced knee arthritis. The WCJ concluded that
Claimant’s injuries had worsened to the point that he could not perform his pre-
injury job as of October 26, 2010, but that Claimant was not entitled to a
reinstatement of benefits because he voluntarily retired from the workforce as of
that date. Accordingly, the WCJ denied Claimant’s modification and reinstatement
petitions. Claimant then appealed to the Board, which affirmed, noting that the
testimony supported the WCJ’s finding that Claimant voluntarily retired and was


                                          5
not forced to leave the workforce due to his work injuries. This appeal followed,4
in which Claimant argues that the WCJ’s finding that he voluntarily retired was not
based on substantial evidence.


                Pursuant to Section 413(a) of the Workers’ Compensation Act
(Act),5 a WCJ may reinstate a claimant’s workers’ compensation benefits upon
proof that the claimant’s disability has increased or recurred. Namani, 32 A.3d at
854. “A claimant seeking reinstatement of suspended benefits must prove that his
or her earning power is once again adversely affected by his or her disability, and
that such disability is a continuation of that which arose from his or her original
claim.”      Bufford v. Workers’ Compensation Appeal Board (North American
Telecom), 2 A.3d 548, 558 (Pa. 2010). Once the claimant meets this burden, the
burden then shifts to the party opposing the reinstatement petition to show that the
claimant’s loss in earnings is not caused by the disability arising from the work-
related injury. Id.


                Where an employer challenges the entitlement to compensation on
grounds that a claimant has retired, the employer has the burden of proving by the
totality of the circumstances that the claimant has voluntarily left the workforce.
City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson), 67 A.3d

       4
         Our review is limited to determining whether the necessary findings of fact are
supported by substantial evidence, whether errors of law were made, or whether constitutional
rights were violated. Namani v. Workers’ Compensation Appeal Board (A. Duie Pyle), 32 A.3d
850, 854 n.2 (Pa. Cmwlth. 2011).

       5
           Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §772.




                                                 6
1194 (Pa. Cmwlth. 2013).        “[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.” Id. at 1210. “Only after the employer has
carried its burden of showing that the claimant has retired does the burden shift to
the claimant to rebut the presumption that he has voluntarily withdrawn from the
workforce.” Day v. Workers’ Compensation Appeal Board (City of Pittsburgh), 6
A.3d 633, 641 (Pa. Cmwlth. 2010). “[A] claimant may satisfy this burden either
by showing that he is still looking for work or has been forced to withdraw from
the entire workforce by his work-related disability.” Id.


             Here, the WCJ’s findings that Claimant’s loss of earnings as of
August 1, 2005, was not related to his work injuries and that Claimant voluntarily
retired are supported by substantial evidence.       As discussed above, Claimant
offered only equivocal testimony and no medical evidence, establishing that his
work-related knee injuries were the reason he left his position with Employer. As
the WCJ recognized, the fact that Claimant worked for two years in his pre-injury
position before quitting, received sporadic treatment for his knee injuries since his
return to work, and waited four years before raising the issue belies his contention
that he was forced into retirement due to those injuries. Moreover, Claimant
testified that he had not looked for any work at all since leaving his position in July
2005, and that he considered himself to be retired.             The totality of the
circumstances here supports the conclusion that Claimant was not forced to leave




                                          7
his position due to his work injuries and, thus, is not entitled to a reinstatement of
benefits.6


              Accordingly, the orders of the Board are affirmed.



                                             ___________________________________
                                             DAN PELLEGRINI, President Judge




       6
        Claimant testified that he was receiving social security disability benefits, which would
seem to suggest that he was unable to perform any job and, thus, did not voluntarily withdraw
from the workforce. As we explained recently in Keene v. Workers’ Compensation Appeal
Board (Ogden Corporation), ___ A.3d ___ (Pa. Cmwlth., No. 1421 C.D. 2010, filed June 4,
2014):

              Disability is defined to include those who are unable “to engage in
              any substantial gainful activity” because of a medically
              determinable impairment which lasts for twelve months and is so
              severe that the individual “is not only unable to do his previous
              work but cannot, considering his age, education, and work
              experience, engage in any other kind of substantial gainful work
              which exists in the national economy.”                42 U.S.C. §§
              423(d)(1)(A), 423(d)(2)(A). Thus, the receipt of social security
              disability benefits is actually not evidence that a person voluntarily
              withdrew from the workforce, but, rather, is evidence that the
              person’s impairment took that person out of the labor market.

Id., slip op. at n. 4. However, Claimant never testified that he was receiving social security
disability benefits as a result of his work-related injuries, and, as noted above, the WCJ
specifically found that Claimant failed to prove his knee injuries were the reason for his
disability. In any event, Claimant failed to raise this argument on appeal.



                                                8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Michael Hofer,                       :
                         Petitioner  :
                                     :
            v.                       : No. 73 C.D. 2014
                                     :
Workers’ Compensation Appeal         :
Board (Patton Beverage, Inc./Amguard :
Insurance Company),                  :
                         Respondents :

Michael Hofer,                       :
                         Petitioner  :
                                     :
            v.                       : No. 74 C.D. 2014
                                     :
Workers’ Compensation Appeal Board :
(Patton Beverage, Inc./Norguard      :
Insurance Company),                  :
                         Respondents :




                                ORDER


            AND NOW, this 31st day of July, 2014, the orders of the Workers’
Compensation Appeal Board, dated December 17, 2013, at Nos. A11-1143 and
A11-1144, are affirmed.



                                   ___________________________________
                                   DAN PELLEGRINI, President Judge
