              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Philips Respironics,                   :
                   Petitioner          :
                                       :
            v.                         :
                                       :
Workers’ Compensation Appeal           :
Board (Mika),                          :   No. 1317 C.D. 2019
                Respondent             :   Submitted: April 17, 2020


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE ELLEN CEISLER, Judge

OPINION BY
JUDGE COVEY                                FILED: May 22, 2020

            Philips Respironics (Employer) petitions this Court for review of the
Workers’ Compensation (WC) Appeal Board’s (Board) August 29, 2019 order
reversing the Workers’ Compensation Judge’s (WCJ) decision suspending Thomas
Mika’s (Claimant) wage loss benefits as of September 1, 2017, and affirming the
WCJ’s decision in all other respects. Employer presents one issue for this Court’s
review: whether Claimant removed himself from the workforce.
            On June 1, 2015, Claimant sustained a work-related injury, described as
a left shoulder strain and sprain, which Employer accepted by a medical-only Notice
of Temporary Compensation Payable that converted to a medical-only Notice of
Compensation Payable by operation of law. On March 17, 2016, Claimant filed a
Claim Petition, alleging that he was entitled to wage loss benefits as of August 3,
2015 and ongoing. On August 31, 2017, Employer filed a Petition to Terminate
Compensation Benefits (Termination Petition), asserting that Claimant was fully
recovered as of June 21, 2016. The WCJ held hearings on May 6, July 8, September
12, October 24, and December 7, 2016, and February 3, May 22, September 1, and
November 3, 2017.
              On April 16, 2018, the WCJ granted Claimant’s Claim Petition and
denied Employer’s Termination Petition.               The WCJ concluded that Claimant
sustained work-related left shoulder impingement syndrome. However, the WCJ
suspended Claimant’s WC benefits as of August 3, 2015, because Claimant resigned
from his modified-duty position for reasons unrelated to his injury. The WCJ also
found that Claimant was entitled to wage loss benefits as of August 11, 2016, but
suspended them as of September 1, 2017, because Claimant did not meet his burden
of proving that his work injury forced him out of the entire labor market. Finally, the
WCJ concluded that Employer failed to meet its burden of proving that Claimant’s
injuries fully ceased.
              Employer and Claimant appealed to the Board. On August 29, 2019, the
Board reversed the WCJ’s decision suspending Claimant’s wage loss benefits as of
September 1, 2017, and affirmed the WCJ’s decision in all other respects. Employer
appealed to this Court.1
              Employer argues that the Board erred by reversing the WCJ’s decision
suspending Claimant’s wage loss benefits as of September 1, 2017, because the
WCJ’s finding that Claimant removed himself from the workforce was supported by
the record facts.




       1
        “On review[,] this Court must determine whether constitutional rights were violated, errors
of law were committed, or necessary findings of fact were supported by substantial competent
evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d 598, 601 n.6
(Pa. Cmwlth. 2014). “Substantial evidence has been defined as such relevant evidence as a
reasonable person might accept as adequate to support a conclusion.” Id.


                                                2
               Initially,

               [i]t is clear that disability benefits must be suspended when
               a claimant voluntarily leaves the labor market upon
               retirement. The mere possibility that a retired worker may,
               at some future time, seek employment does not transform a
               voluntary retirement from the labor market into a
               continuing compensable disability. An employer should not
               be required to show that a claimant has no intention of
               continuing to work; such a burden of proof would be
               prohibitive.      For disability compensation to continue
               following retirement, a claimant must show that he is
               seeking employment after retirement or that he was forced
               into retirement because of his work-related injury.

City of Pittsburgh v. Workers’ Comp. Appeal Bd. (Leonard), 18 A.3d 361, 364 (Pa.
Cmwlth. 2011) (quoting Se. Pa. Transp. Auth. v. Workmen’s Comp. Appeal Bd.
(Henderson), 669 A.2d 911, 913 (Pa. 1995)).
               This Court has expounded:

               We recognize that there may be circumstances where a
               claimant may be forced to retire from his or her time-of-
               injury job due to a work-related injury, but may not be
               disabled from other type[s] of work. In that situation, the
               claimant must show that he or she has not voluntarily
               withdrawn from the entire labor market and is open to
               employment within his or her physical capabilities in
               order to be entitled to benefits under the [WC Act2].

Cty. of Allegheny v. Workers’ Comp. Appeal Bd. (Weis), 872 A.2d 263, 266 (Pa.
Cmwlth. 2005) (bold emphasis added) (quoting Shannopin Mining Co. v. Workers’
Comp. Appeal Bd. (Turner), 714 A.2d 1153, 1155 n.5 (Pa. Cmwlth. 1998)).
               Our Supreme Court has further instructed:

               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.

      2
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.

                                                 3
              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’ Comp. Appeal Bd. (Robinson), 67 A.3d 1194, 1209-10
(Pa. 2013).
              In the instant case, on September 1, 2017, Claimant testified:

              Q. Okay. Have you looked for work since you were last
              here before the [WCJ]?
              A. No, sir.
              Q. Okay. Has your -?
              A. I’m a stay[-]at[-]home dad.
              Q. Okay. You’ve made a decision to be a stay[-]at[-]home
              dad?
              A. Right now with my shoulder injury and with the - the
              limitations of certain things that I’m able to do in the work
              force, I’m - I’m not be - I mean I don’t have no trade or -
              Q. Sure.
              A. - professional, you know, college, anything like that. So
              warehouse work was my main income.
              Q. Okay. But just to review. You - you think you can do
              something. You haven’t applied for work and the
              reason you haven’t applied for work is partially because
              of your shoulder and your partial disability. But
              partially because you decided it was better to be a stay[-
              ]at[-]home dad.
              A. Partially.
              Q. Okay. Let me ask - let me - let me phrase it this way. If
              you didn’t have kids, if no one had to care - if you didn’t
              have children at all, you would have tried to come - if you
              were to try and find some kind of work that was
              consistent with your current restrictions?
              A. If it was just myself, yes.
                                           4
            Q. Okay.
            A. For the simple fact I don’t need to provide so much
            income for a family.
Reproduced Record (R.R.) at 330a-331a (emphasis added).
            In addition, on November 3, 2017, Claimant related:
            Q. Okay. The other question I have for you is I think last
            time we were here, there was testimony that you had not
            looked for work. Is that still the situation?
            A. No, sir. I’m pretty much staying at home.
            Q. So you made a decision to stay at home. And I think
            you had responsibility to your children?
            A. I made the decision that was in my best interest not to
            try to work at a fast food restaurant or something that would
            be less weight bearing on my arm versus making $8[.00],
            and stay home and take care of the children.
            Q. Okay. So it’s a financial decision? You feel like you
            could get a lower-paying job in fast food or something, but
            you decided you’d rather hold out for a manufacturing job
            because the wages are better?
            A. Once my shoulder gets better, I would love to go back
            to work.
R.R. at 281a (emphasis added). Claimant clarified:
            A. Well, what I’m stating is that the job that I’ve done my
            whole life I can no longer do. And it’s what paid the bills.
            Now I would have to sacrifice that and work a lower end
            job where I couldn’t meet the bills.
            And so therefore, we made the decision that it was better for
            me to stay at home and take care of the children while the
            wife went to work.
            Q. Okay. And so your wife returned to work. You’re
            now the primary care[-]giver for the kids?
            A. Yes, sir.


                                         5
            Q. Okay. But that was - what I’m hearing is at least in
            large part, that was a financial decision?
            A. Yes.
            Q. I guess what I’m getting at is you’re not telling the
            [WCJ] you’re totally disabled. There’s [sic] certainly
            things you could do and certain jobs you could do, but
            unless -.
            A. Yes, sir. I’m not saying I’m completely disabled, no.
R.R. at 282a-283a (emphasis added).
            Based on the above testimony, the WCJ determined:
            As of September 1, 2017, Claimant had voluntarily
            withdrawn from the workforce.
            Claimant’s testimony on this point is credible. He testified
            on May 6, 2016[,] that he was then applying for jobs. But
            he testified on September 1, 2017[,] and again on
            November 3, 2017[,] that he had stopped looking for work,
            in part due to his shoulder condition and in part due to the
            economics of his personal situation. He did not testify that
            he was forced out of the entire workforce by his shoulder
            problems. Rather, he acknowledged that there was work he
            could do, but he chose not to pursue it due to personal
            financial considerations.

R.R. at 38a-39a (Finding of Fact No. 16). Accordingly, the WCJ ordered: “Wage
loss benefits are suspended as of September 1, 2017.” R.R. at 40a.
            The Board opined:

            We disagree that Claimant unequivocally stated that he was
            leaving the workforce, either by quitting or by retiring. In
            fact, the WCJ found that Claimant was a ‘stay-at-home dad’
            partially because of his work-related injury, the limitations
            on certain things he could do in the work[]force because of
            that injury, and his lack of professional or college training.
            (Finding of Fact No. 13). These statements are not
            unequivocal that Claimant stated his intention to
            permanently remove himself from the workforce, but
            rather, realistic issues regarding finding work because
            of his work-related injury.
                                          6
            Additionally, the WCJ accepted Dr. Smith’s expert medical
            opinion of Claimant’s physical limitations as of August 11,
            2016, and [Employer] presented no evidence of available
            work within his restrictions or expert testimony
            regarding his earning power. [Robinson]. Because
            Henderson is factually distinct from the instant case and,
            furthermore, Claimant’s admission that he was not
            looking for work is not sufficiently unequivocal that he
            has no intention to seek[] future employment, we reverse
            the WCJ’s [d]ecision regarding a suspension of Claimant’s
            wage[]loss benefits as of September 1, 2017.

R.R. at 60a-61a (emphasis added).
            An employer is not required to show that a claimant does not intend to
continue to work. Leonard. Rather, an employer only has to prove that, although
claimant may be forced to retire from his time-of-injury job due to his work-related
injury, he was not disabled from other types of work. Weis.
            Here, Claimant unequivocally testified that he had stopped looking for
work, in part due to his shoulder condition and in part due to the economics of his
personal situation. Because Claimant acknowledged that there was work he could do,
but he chose not to pursue it due to personal financial considerations, Employer was
not required to present evidence of available work within Claimant’s restrictions or
expert testimony regarding Claimant’s earning power. Accordingly, the Board erred
by reversing the WCJ’s decision suspending Claimant’s wage loss benefits as of
September 1, 2017.
            For all of the above reasons, the portion of the Board’s order reversing
the WCJ’s decision is reversed.



                                      ___________________________
                                      ANNE E. COVEY, Judge




                                         7
              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Philips Respironics,                 :
                   Petitioner        :
                                     :
            v.                       :
                                     :
Workers’ Compensation Appeal         :
Board (Mika),                        :   No. 1317 C.D. 2019
                Respondent           :



                                  ORDER

            AND NOW, this 22nd day of May, 2020, the portion of the Workers’
Compensation Appeal Board’s August 29, 2019 order reversing the Workers’
Compensation Judge’s decision suspending Thomas Mika’s wage loss benefits as of
September 1, 2017, is reversed.



                                   ___________________________
                                   ANNE E. COVEY, Judge
