              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

City of Pittsburgh,                             :
                         Petitioner             :
                                                :
                 v.                             :   No. 2048 C.D. 2016
                                                :   Submitted: April 28, 2017
Workers’ Compensation Appeal                    :
Board (Marinack),                               :
                  Respondent                    :

BEFORE:          HONORABLE MARY HANNAH LEAVITT, President Judge
                 HONORABLE PATRICIA A. McCULLOUGH, Judge
                 HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                         FILED: August 21, 2017

                 The City of Pittsburgh (Employer) petitions for review of an
adjudication of the Workers’ Compensation Appeal Board (Board) denying
Employer’s petition to suspend the compensation benefits of Kenneth Marinack
(Claimant).        In so doing, the Board affirmed the decision of the Workers’
Compensation Judge (WCJ) that Employer did not prove Claimant had voluntarily
removed himself from the workforce. Employer argues that the evidence proves
otherwise and, thus, the Board erred in affirming the WCJ. Discerning no merit to
this contention, we affirm the Board.
                 This case has a protracted history. Claimant worked as a firefighter
for Employer. On May 21, 2004, he was injured when he fell in a stairwell while
pulling down a ceiling in a burning building.1 Employer issued a Notice of
Compensation Payable (NCP) describing the accepted injury as a left shoulder

1
    Claimant was 42 years old at the time of the injury.
rotator cuff tear; aggravation of lumbar disc disease; and a psychological
adjustment disorder with anxiety and depression. Pursuant to the NCP, Claimant
collected compensation benefits in the amount of $690 per week.
               On September 16, 2008, Dennis J. Phillips, II, M.D., one of
Claimant’s treating physicians, informed Employer that Claimant could return to
full-time work in a light-duty position. On September 18, 2008, Employer sent
Claimant a Notice of Ability to Return to Work pursuant to Section 306(b) of the
Workers’ Compensation Act (Act).2 On September 24, 2008, Employer filed a
petition to suspend Claimant’s compensation benefits as of September 16, 2008,
because Claimant had “retired and voluntarily removed himself from the entire
labor market and/or work force.” Reproduced Record at 2 (R.R. __). A hearing on
the suspension petition was conducted before WCJ Nathan Cohen.3

2
 Act of June 2, 1915, P.L. 736, as amended, added by the Act of June 24, 1996, P.L. 350, 77
P.S. §512(3). Section 306(b)(3) of the Act states as follows:
       If the insurer receives medical evidence that the claimant is able to return to work
       in any capacity, then the insurer must provide prompt written notice, on a form
       prescribed by the department, to the claimant, which states all of the following:
                (i) The nature of the employe’s physical condition or change of
                condition.
                (ii) That the employe has an obligation to look for available
                employment.
                (iii) That proof of available employment opportunities may
                jeopardize the employe’s right to receipt of ongoing benefits.
                (iv) That the employe has the right to consult with an attorney in
                order to obtain evidence to challenge the insurer’s contentions.
77 P.S. §512(3).
3
  Employer also filed a termination petition regarding Claimant’s psychological injury, which
was granted by the WCJ. Claimant filed a penalty petition, which was denied by the WCJ. The
termination and penalty petitions were not appealed to this Court.
        In 2010, Employer filed a second suspension petition, asserting that Claimant’s failure to
report earnings from self-employment warranted a suspension of benefits. This Court agreed,
(Footnote continued on the next page . . .)
                                       2
              Employer submitted the deposition of Dr. Phillips, a board certified
orthopedic surgeon who has treated Claimant for his left shoulder injury since
October 2004. Dr. Phillips opined that Claimant’s left shoulder injury rendered
him incapable of doing the heavy work of a firefighter. However, in April 2005,
Dr. Phillips sent Employer a report stating that Claimant could do sedentary work.
On September 16, 2008, Dr. Phillips released Claimant to do light-duty work, with
a lifting limit of no more than twenty pounds.              When Claimant experienced
increasing left shoulder pain, Dr. Phillips limited Claimant to sedentary work as of
October 28, 2008. On March 25, 2009, Dr. Phillips did surgery on Claimant’s left
shoulder, which left him temporarily totally disabled. The postoperative diagnosis
was mild arthritis in the shoulder joint. As of May 1, 2009, when he was deposed,
Dr. Phillips had not yet released Claimant to do any type of work.
              Employer also presented the deposition testimony of Barbara E.
Swan, M.D., who is board certified in physical medicine and rehabilitation, and has
treated Claimant’s work-related back injury since July 28, 2005. In September
2005, Dr. Swan informed Claimant that he would not be able to return to work as a
firefighter. On October 14, 2008, following a physical examination, Dr. Swan
released Claimant to do medium-duty work, notwithstanding his back injury.4 Dr.
Swan testified that Claimant has never asked her to identify his job restrictions, but
in 2006 they did have a conversation about the Office of Vocational Rehabilitation


(continued . . .)
and granted a suspension as of June 2009. Marinack v. Workers’ Compensation Appeal Board
(City of Pittsburgh), (Pa. Cmwlth., No. 871 C.D. 2015, filed February 19, 2016). However, that
decision did not affect the instant suspension petition.
4
  Employer sent Claimant a second Notice of Ability to Return to Work upon receipt of Dr.
Swan’s release.

                                              3
(OVR). Claimant advised her that OVR was pessimistic about his job prospects
given his physical limitations.
               Employer submitted Claimant’s employment record. It recounted that
Claimant was discharged because he did not inform Employer that he was earning
wages in construction while he was collecting disability compensation and benefits
under what is commonly known as the Heart and Lung Act.5 Claimant’s discharge
rendered him ineligible for a disability or retirement pension. However, Claimant
has continued to receive workers’ compensation disability and Heart and Lung Act
benefits since his discharge.
               Claimant testified in opposition to Employer’s petition, both by
deposition and by live testimony. Claimant recounted that he has experienced both
back and shoulder pain since his 2004 work injury and has never returned to work.
               Regarding Employer’s April 2005 discharge, Claimant explained that
an elderly couple for whom he was doing construction work complained to
Employer about the quality of his work. Employer investigated and referred the
matter to the “Fire Trial Board,” which found that Claimant had acted unethically
by failing to report his construction work income to Employer. R.R. 25. On that
basis, Claimant was discharged.
               Claimant stated that prior to being fired he had applied for a pension.
He testified that he was required to submit documentation from three medical
doctors in order to apply and he did submit this evidence. However, shortly


5
  Act of June 28, 1935, P.L. 477, as amended, 53 P.S. §§637-638. The Heart and Lung Act
provides firemen injured on the job their full salary. They receive these benefits concurrent with
their workers’ compensation disability benefits. According to Claimant, Employer attempted to
stop paying him Heart and Lung Act benefits after he was fired, but a city arbitrator did not
allow it.

                                                4
thereafter, Employer discharged him, which caused his pension application to be
denied.
              Claimant testified that he considers himself to be disabled, but he
denied that he has withdrawn from the workforce. He testified that he began
working with a vocational counselor from OVR sometime in 2006 and met with
him three times, most recently in September 2007. Because of his significant
physical limitations, Claimant is not sure what work, if any, he is able to do.
              Claimant acknowledged receiving Employer’s two Notices of Ability
to Return to Work in September and October of 2008. After receiving the Notices,
Claimant interviewed for two jobs. One position was at a financial planning
company managed by his aunt and the other was at a commercial insulation
company owned by a high school friend. Claimant also looked at the want ads for
jobs. However, when Claimant was scheduled for surgery, he stopped looking for
work.6 Claimant stated that he planned to return to OVR to seek employment
training after his March 25, 2009, shoulder surgery, at which point he would learn
the full extent of his capabilities.
              Crediting the testimony of Dr. Phillips and Dr. Swan, the WCJ found
that Claimant was capable of modified-duty work “at all relevant times.”                 WCJ
Cohen Decision, 10/27/2009, at 12; Finding of Fact No. 40.7 The WCJ also found
that Claimant never asked his doctors about what, if any, work restrictions applied
to him and did not seek their help with the OVR.                 The WCJ did not credit


6
 Claimant testified on March 16, 2009.
7
 The WCJ has complete authority over questions of credibility, conflicting medical evidence and
evidentiary weight. Sherrod v. Workmen’s Compensation Appeal Board (Thoroughgood, Inc.),
666 A.2d 383, 385 (Pa. Cmwlth. 1995).

                                              5
Claimant’s testimony that he did not withdraw from the workforce. The WCJ
found that contacting a family member and a childhood friend about a job did not
constitute a good faith effort to find work. The WCJ also found that because
Employer alleged Claimant had retired, Claimant had the burden to show that he
had been forced out of the workforce by his injury or that he was searching for
work in good faith. Claimant failed to meet his burden. Accordingly, the WCJ
suspended Claimant’s workers’ compensation benefits as of September 16, 2008,
the date of Dr. Phillips’ initial work release.
             Claimant appealed, and the Board reversed. First, the Board held that
the WCJ erred in finding that Claimant had retired. To the contrary, the evidence
showed that Employer fired Claimant, who was then rendered ineligible for any
type of pension. Claimant’s discharge did not show that Claimant had withdrawn
from the workforce. In the absence of evidence that Claimant had withdrawn from
the workforce, the Board held that it was Employer’s burden to prove that
Claimant had earning capacity, which it could do by introducing evidence of a job
referral or a labor market survey. Because Employer did not do so, the Board
denied the suspension petition.
             Employer petitioned this Court for review, and we affirmed the Board
in City of Pittsburgh v. Workers’ Compensation Appeal Board (Marinack), (Pa.
Cmwlth., No. 100 C.D. 2011, filed February 7, 2012). Our decision was based on
City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson), 4 A.3d
1130, 1134 (Pa. Cmwlth. 2010) (plurality op.) (Robinson I), affirmed, 67 A.3d
1194 (Pa. 2013) (Robinson II), which at that time was pending before the
Pennsylvania Supreme Court.



                                            6
                Employer petitioned for allowance of appeal to the Supreme Court.
By that time the Supreme Court had decided Robinson II, which affirmed Robinson
I. In doing so, Robinson II established a new “analytical paradigm” for deciding
whether an employee on compensation has withdrawn from the workforce.
Robinson II, 67 A.3d at 1209. The Supreme Court vacated this Court’s order of
February 7, 2012, and remanded for reconsideration in light of Robinson II.
                On remand, this Court explained that the WCJ had not made factual
findings on Claimant’s separation from the workforce and did not have the benefit
of the Supreme Court’s analysis in Robinson II.        Accordingly, we ordered a
remand so the WCJ could “reassess all relevant evidence presented in this case and
determine whether Employer proved, through the totality of the circumstances, that
Claimant voluntarily withdrew from the workforce.”           City of Pittsburgh v.
Workers’ Compensation Appeal Board (Marinack), (Pa. Cmwlth., No. 100 C.D.
2011, filed January 8, 2015), slip op. at 11.
                On remand, the case was reassigned to a new WCJ, Gerald Yanity.8
WCJ Yanity adopted WCJ Cohen’s prior findings of fact and then made additional
findings to address the issue presented on remand. Specifically, the WCJ found as
follows:

                2. Claimant has made no affirmative statements, nor has he
                taken any affirmative actions, which indicate an intent to
                withdraw from the workforce voluntarily. Judge Cohen found
                that Claimant’s efforts to locate work were “questionable at
                best” and I reaffirm that finding. Although Claimant’s job
                search efforts were certainly questionable, the record of OVR
                and Claimant’s applications for employment are not consistent
                with a purported voluntary withdrawal from the workforce.

8
    WCJ Cohen had retired.

                                           7
              3. Claimant’s initial separation from his job with Employer
              was not voluntary. There is no genuine dispute regarding the
              fact that Claimant’s termination from the Employer was the
              result of his violation of Fire Bureau Regulations.

              4. Following his termination from employment, Claimant made
              various perfunctory and feeble attempts to find suitable work on
              his own. Claimant’s lack of diligence in his job search does
              not, however, convert his removal from the workforce from
              involuntary to voluntary.

WCJ Yanity Decision, 11/06/2015, at 4-5; Findings of Fact Nos. 2-4 (internal
citations to the record omitted). Based on these findings, the WCJ concluded that
“Employer has failed to prove, by the totality of the circumstances, that Claimant
ha[d] voluntarily removed himself from the workforce.” WCJ Yanity Decision,
11/06/2015, at 5; Conclusion of Law No. 4.
              Employer appealed to the Board, arguing that the WCJ’s conclusion
was not consistent with the factual findings of WCJ Cohen, which had been
adopted by WCJ Yanity. The Board rejected this argument. The Board concluded
that WCJ Yanity carried out the remand order and properly applied the legal
analysis required by Robinson II.             Board Adjudication, 11/30/2016, at 11.
Claimant’s lack of diligence in looking for work did not, under Robinson II, prove
that he had voluntarily left the workforce. Accordingly, it was Employer’s burden
to prove the availability of work within Claimant’s residual capacity, either by job
referrals or by a labor market survey, in accordance with Robinson II.
              Employer has petitioned for this Court’s review.9               Employer first
contends that the Board misinterpreted and misapplied the holding in Robinson II,


9
  This Court’s review of an order of the Board is to determine whether the necessary findings of
fact are supported by substantial evidence, whether constitutional rights were violated, or
(Footnote continued on the next page . . .)
                                       8
thereby imposing an insurmountable burden of proof upon Employer. Second,
Employer contends that because WCJ Cohen found, as fact, that Claimant had
removed himself from the workforce, WCJ Yanity erred in finding otherwise.
             We begin with a review of Robinson II. In that case, a police officer
was placed on light-duty work in 1997 because of a work injury. In 2001, she
sustained new injuries in an automobile accident, while traveling to a medical
appointment to treat her 1997 work injury. The employer accepted liability for the
new injuries. Thereafter, the claimant did not return to her light-duty position and
the employer did not offer any other light-duty work. In 2004, the claimant
applied for and received a disability pension from the employer on the basis that
she was unable to perform her pre-injury job.
             In 2007, the claimant underwent an independent medical examination
(IME), which found her unable to return to work as a police officer but able to
perform modified-duty work. The employer sent the claimant a Notice of Ability
to Return to work on November 8, 2007, and three weeks later filed a petition to
suspend compensation benefits, asserting that the claimant had voluntarily
removed herself from the workforce.
             The WCJ denied the suspension petition because the employer had
eliminated the claimant’s light-duty job. Further, the claimant had reported to the
local unemployment center after receipt of the Notice of Ability to Return to Work
and the suspension petition. At the center, she searched for available jobs she
could perform, but did not find any. The Board affirmed the WCJ.


(continued . . .)
whether an error of law was committed. City of Philadelphia v. Workers’ Compensation Appeal
Board (Brown), 830 A.2d 649, 653 n.2 (Pa. Cmwlth. 2003).

                                            9
             Before this Court, the employer argued that the claimant had retired.
With one exception, the claimant made no effort to find employment after 2001.
In a plurality opinion, we held that the employer did not meet its burden for several
reasons: the employer terminated the claimant’s light-duty position; the claimant
did not state in her disability pension application that she was incapable of any
employment; the claimant did look for work at least once; and the employer did
not submit any evidence of available positions within her restrictions. Robinson II,
67 A.3d at 1199-1200 (summarizing this Court’s analysis in Robinson I).
             The Supreme Court affirmed Robinson I. It used the appeal to clarify
the standard to apply when considering whether a claimant has voluntarily
withdrawn from the workforce. Id. at 1209. The Supreme Court explained that a
claimant’s application for a disability or retirement pension does not create a
presumption that a claimant has removed herself from the workforce. At most, the
acceptance of a retirement pension creates 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 concluding that the employer has
             carried its burden of proof.
Id. The Supreme Court further explained as follows:

             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.
                                         10
Id. at 1209-10.
             Applying this standard, the Supreme Court held that the claimant’s
disability pension showed only an intention to withdraw from her pre-injury job,
not the entire workforce.     Regarding the employer’s claim that the claimant
received a disability pension for many years without seeking new employment or
evidence that she was incapable of work, the Supreme Court responded as follows:

             the fact that claimant did not submit evidence showing that she
             was unable to work does not prove voluntary retirement,
             especially in light of the [e]mployer’s own medical testimony
             regarding [c]laimant’s physical limitations, and the absence of
             evidence of available work within her restrictions or expert
             testimony regarding her earning power.

Id. at 1210 (internal footnote omitted).
             With the principles of Robinson II in mind, we turn to Employer’s
first issue, i.e., that the Board misapplied the principles of Robinson II, thereby
placing an insurmountable burden of proof upon Employer. Employer argues that
Robinson II directed a “totality of the circumstances” analysis; on remand, the
WCJ did only “piecemeal analysis” of the record. Employer Brief at 23. Claimant
responds that WCJ Yanity properly followed the standard set forth in Robinson II,
as the Board held. Employer simply failed to meet its burden of proof that
Claimant had removed himself from the workforce.
             In its challenge to the WCJ’s Robinson II analysis, Employer
challenges Findings of Fact Nos. 2 through 4 in the WCJ ’s decision. We consider
those challenges seriatim.
             In Finding of Fact No. 2, the WCJ recited that Claimant made no
affirmative statement or actions indicating his intent to retire.        Employer


                                           11
characterizes this statement as self-serving. That characterization does not make
the finding of fact erroneous.
             In Finding of Fact No. 3, the WCJ recited that Claimant’s separation
was involuntary.    Employer complains that Claimant’s separation was due to
misconduct and Claimant would have been receiving a pension had it not been for
his misconduct.     Finding of Fact No. 3 correctly characterizes Claimant’s
separation from work as involuntary, an apt description of a discharge. It does not
mention Claimant’s attempt to obtain a pension, but that does not constitute error.
In any event, “seek[ing] or accept[ing] a pension” is not sufficient evidence of
intent to retire. Robinson II, 67 A.3d at 1209.
             In Finding of Fact No. 4, the WCJ found that Claimant’s lack of
diligence in seeking work did not constitute a voluntary removal from the
workforce.    Employer argues that Claimant’s attempts to find work were
discredited by WCJ Cohen and, thus, Finding of Fact No. 4 is in error. We
disagree.
             WCJ Yanity adopted WCJ Cohen’s findings of fact, but these findings
were silent on the issue of Claimant’s retirement. Nevertheless, WCJ Yanity
expressly accepted WCJ Cohen’s determination that Claimant’s efforts to locate
work were “questionable at best.” WCJ Yanity Decision, 11/6/2015, at 2; Finding
of Fact No. 2. In fact, WCJ Yanity described Claimant’s attempts as “perfunctory”
and “feeble.” WCJ Yanity Decision, 11/6/2015, at 3; Finding of Fact No. 4.
However, WCJ Yanity concluded it could not be inferred from Claimant’s feeble
job search that he had removed himself from the workforce.
             Claimant’s “feeble” attempts to find employment were more
substantial than those of the claimant in Robinson II, who had not sought


                                          12
employment in the six years before receiving the Notice of Ability to Return to
Work and then responded with a single job application. Nevertheless, this lack of
effort to seek employment was held not to prove voluntary retirement, particularly
in “the absence of evidence of available work within her restrictions or expert
testimony regarding her earning power.” Robinson II, 67 A.3d at 1210. Likewise,
here, Employer did not present evidence on the availability of work within
Claimant’s restrictions or his earning power.
             Claimant was fired for misconduct and, thus, rendered ineligible for a
pension. Employer does not explain whether Claimant sought a disability pension
or a retirement pension. The fact that Claimant was in his mid-40s when he
applied for the pension, and presented medical documentation to qualify, suggests
that he sought a disability pension. However, it does not matter. Under Robinson
II, seeking or accepting any type of pension, “much less a disability pension,” does
not raise a presumption that one has left the workforce. Id. at 1209. The Supreme
Court explained that a disability pension shows “at most” that a claimant cannot
perform the “time-of-injury position.”     Id. at 1205.   It does not show that a
claimant “decided to forgo all employment. Any presumption of a total inability to
work or intent not to work is conjectural.” Id.
             Simply, Employer did not present the evidence required, such as job
availability to Claimant, to allow the inference that Claimant has withdrawn from
the workforce.    The WCJ and Board did not err in their understanding and
application of Robinson II.
             In its second issue, Employer argues that WCJ Yanity’s decision
cannot be reconciled with WCJ Cohen’s decision that Claimant voluntarily



                                         13
removed himself from the workforce.           WCJ Yanity did not, according to
Employer, follow the remand instructions.
             The decision of WCJ Cohen placed the burden on Claimant to prove
that he could not work at any job because of his work injury or that he was actively
looking for work. WCJ Cohen so held because he reasoned that Employer should
not be burdened with having to demonstrate Claimant’s intentions, an evidentiary
matter within the control of Claimant. However, the Board held that WCJ Cohen
erred because it was Employer’s burden to prove Claimant had retired. Thus, the
Board reversed WCJ Cohen. This Court agreed with the Board, but in light of
Robinson II, we remanded the case to the WCJ because of the lack of a factual
finding that Claimant had voluntarily separated from the workforce.
             On remand, a WCJ must “confine his decision to the instructions
within the remand order.”        Teter v. Workers’ Compensation Appeal Board
(Pinnacle Health System), 886 A.2d 721, 723 (Pa. Cmwlth. 2005). “[A] WCJ is
not required to produce the same result as the initial decision….” Id.
             WCJ Yanity complied with the remand instructions. His new findings
related solely to the question of Claimant’s separation from the workforce pursuant
to Robinson II; the initial burden of proof was placed squarely on Employer.
Further, under Robinson II, the fact that Claimant applied for a disability pension
was not sufficient to meet Employer’s burden. The only other evidence of record
of retirement was Claimant’s “perfunctory” and “feeble” attempts to find a job.
WCJ Yanity Decision, 11/6/2015, at 3; Finding of Fact No. 4. Both WCJ Yanity
and the Board agreed that Claimant’s lack of diligence did not prove a voluntary
separation from the workforce.



                                         14
            We find no error in the Board’s affirmance of WCJ Yanity’s decision.
As noted above, Claimant’s attempts to find employment were more substantial
than that of the claimant in Robinson II. Further, Employer’s evidence was that
Claimant was released to light-duty work in September 2008, but again limited to
sedentary work in October 2008, due to increased shoulder pain. From October
2008 to March 2009, Claimant was awaiting medical clearance for shoulder
surgery. On March 25, 2009, he underwent surgery and was held temporarily
totally disabled. Thus, Claimant spent the majority of the time following his
receipt of the September 18, 2008, Notice of Ability to Return to Work awaiting
surgery. Under these circumstances it would be difficult to conclude Claimant’s
minimal job efforts during that period were due to a decision to separate from the
workforce, as opposed to the limits imposed on him by his work injury.
            For these reasons, we affirm the Board’s adjudication.

                                  _____________________________________
                                  MARY HANNAH LEAVITT, President Judge




                                       15
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

City of Pittsburgh,                  :
                      Petitioner     :
                                     :
             v.                      :   No. 2048 C.D. 2016
                                     :
Workers’ Compensation Appeal         :
Board (Marinack),                    :
                  Respondent         :

                                   ORDER

             AND NOW, this 21st day of August, 2017, the order of the Workers’
Compensation Appeal Board dated November 30, 2016, in the above-captioned
matter is AFFIRMED.

                                   ______________________________________
                                   MARY HANNAH LEAVITT, President Judge
