           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Elliott Company and Constitution          :
States Services, LLC,                     :
                       Petitioners        :
                                          :
                   v.                     :   No. 786 C.D. 2017
                                          :   Submitted: October 20, 2017
Workers’ Compensation Appeal              :
Board (Mattucci),                         :
                      Respondent          :



BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                          FILED: January 11, 2018


      Elliott Company and Constitution States Services, LLC (together, Employer)
petition for review of the Order of the Workers’ Compensation Appeal Board
(Board) affirming the decision of a Workers’ Compensation Judge (WCJ) denying
and dismissing Employer’s Petition to Suspend Benefits (Petition). On appeal,
Employer argues it was error to deny the Petition because the evidence established
that: any reduction in earnings that Jesse A. Mattucci (Claimant) experienced was
based on an economic downturn, not his work injury; and Claimant is earning the
same wages as similarly-situated employees and, therefore, is not entitled to partial
disability benefits pursuant to Section 306(b)(1) of the Workers’ Compensation Act1
(Act). It further asserts that the WCJ capriciously disregarded its evidence and did
not issue a reasoned decision as required by Section 422(a) of the Act.2 Because the
Board did not err, we affirm.
       On May 13, 2013, Claimant sustained a work-related injury to his middle
finger on his right hand that was accepted by Employer via a Notice of Temporary
Compensation Payable-Medical Only. Employer subsequently issued a Notice of
Temporary Compensation Payable, pursuant to which it began paying Claimant
$917.00 in disability benefits based on his time of injury Average Weekly Wage
(AWW) of $1,945.24. Employer paid Claimant disability benefits until December
26, 2014, when Employer and Claimant entered into a Supplemental Agreement
suspending Claimant’s benefits based on his performing modified duty work from
December 1, 2014, until December 22, 2014, and his receipt of partial disability
benefits during that period. The parties agreed to continue to review Claimant’s
wages and that Employer would pay additional partial disability benefits if
necessary.
       Employer filed the Petition on June 17, 2015,3 seeking to suspend Claimant’s
partial disability benefits because he had returned to his pre-injury job without a loss
of wages.4      Claimant timely responded and denied Employer’s allegations.

       1
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 512(1).
       2
          77 P.S. § 834.
        3
          On May 19, 2015, Employer filed a Notification of Suspension suspending Claimant’s
disability benefits as of May 18, 2015, based on its assertion that Claimant had returned to work
with earnings equal to or greater than his AWW, which Claimant timely challenged. After
receiving testimony from Claimant regarding his inability to make the same amount as he could
before his work injury, the WCJ granted Claimant’s challenge and directed Employer to reinstate
Claimant’s temporary total disability benefits.
        4
          Employer requested supersedeas, which the WCJ denied.



                                               2
Employer thereafter clarified, at a hearing before the WCJ, that the basis for the
suspension was that Claimant is not entitled to ongoing partial disability benefits
pursuant to Section 306(b)(1) of the Act, 77 P.S. § 512(1), because any reduction in
Claimant’s earnings was not related to his work injury and Claimant’s post-return to
work wages were equal to those of similarly-situated employees.5
       In support of its Petition, Employer presented both live and deposition
testimony of several of its employees, including:                        Claimant’s supervisor
(Supervisor); Employer’s risk manager (Risk Manager); and the manager in charge
of the area in which Claimant worked (Area Manager).6 Supervisor, Risk Manager,
and Area Manager testified that Claimant currently was working at his pre-injury
job as an assembler, and this job was within Claimant’s medical restrictions set forth
in a Functional Capacity Evaluation. (WCJ Decision, Findings of Fact (FOF) ¶¶ 12-
13, 15-16.) Supervisor acknowledged that he had informed Claimant that, should
Claimant experience any pain or problem with his injured hand, Claimant should
stop what he is doing and perform a different task. (Id. ¶ 12.) Supervisor explained
that, since Claimant’s return to work, Claimant has worked 40-hour weeks with
overtime being available on non-holiday weekends. Risk Manager acknowledged




       5
           Relevant to this issue, Section 306(b)(1) of the Act provides that:

       [I]n no instance shall an employe receiving compensation under this section receive
       more in compensation and wages combined than the current wages of a fellow
       employe in employment similar to that in which the injured employe was engaged
       at the time of the injury.

77 P.S. § 512(1).
        6
          Employer also presented the deposition testimony of a payroll supervisor in order to
authenticate certain exhibits created using data from its payroll department. (FOF ¶ 14.)


                                                   3
that there were weeks where Claimant earned wages less than his AWW and other
weeks where Claimant earned more. (Id. ¶ 15.)
       All three of Employer’s witnesses testified that Employer has been offering
less overtime since 2012 as a result of an economic downturn in the oil industry and
that Claimant’s injury has nothing to do with the amount of overtime Claimant has
been offered. (Id. ¶¶ 12-13, 15.) Supervisor explained that the decrease in overtime
was part of Employer’s “conscientious effort to cut costs.” (Id. ¶ 12.) Supervisor
testified that overtime is offered every non-holiday weekend pursuant to the
collective bargaining agreement (CBA) between Employer and Claimant’s union,
which requires that overtime be offered first to those employees who have the fewest
overtime hours and then offered to others in accordance with the number of overtime
hours they have. An employee is “charged” with both the overtime hours worked,
as well as double the number of overtime hours refused.7 Thus, if an employee
actually works 6 hours of overtime but refuses 2 hours of overtime, the employee is
charged with 10 hours of overtime.
       Employer also offered various exhibits. Exhibit D compares Claimant’s
wages with his co-workers and reflects that there were weeks where Claimant was
the highest paid worker in his department and weeks where he was not. (Reproduced
Record (R.R.) at 222a.) It further shows that there were 13 weeks where Claimant
did not earn as much as his AWW, and that, on several occasions, Claimant or
another worker earned more than Claimant’s AWW. (Id.) Exhibit E shows the


       7
         Employer “charges” its employees with overtime hours that reflect both the actual number
of overtime hours that an employee works and the number of overtime hours that an employee
refuses to work. The number of hours of overtime charged is used to determine the order in which
employees are offered overtime. The effect is that the more overtime an employee refuses the
greater amount of overtime he is charged and the less likely he will be offered overtime in the
future.


                                               4
amount of weekly overtime charged to each worker between March 28, 2015, and
July 18, 2015, and indicates that Claimant was charged as much overtime as two
other workers and more than four other workers. (Id. at 223a.) Exhibit F compares
the amount of overtime Claimant had worked between 2010 and 2015 with that of a
co-worker who had worked for Employer for about the same length of time. (Id. at
224a-25a.) This exhibit reflects that the number of overtime hours both had worked
had decreased in 2014 and that the trend appeared to continue for the part of 2015
that had been completed at the time it was introduced. Exhibit G is a chart reflecting
the total number of overtime hours of those working in Claimant’s department
between January 1, 2015, and September 11, 2015, which reveals that Claimant had
worked 441.2 hours of overtime and had refused 58.6 hours of overtime and that 2
other employees had more overtime hours than Claimant. (Id. at 226a.)
      Claimant testified as follows.     He is the most senior employee in his
department and is the department’s group leader, resulting in him having a slightly
higher hourly wage ($0.75 more an hour) than his co-workers. Following his injury,
Claimant returned to work as an assembler with restrictions from his treating
physician, and there are certain job duties that are beyond those restrictions. In the
single-stage area of Claimant’s department, where smaller turbines are assembled,
lifting some of the required “plates and tightening certain bolts with wrenches . . .
[were] above and beyond his restrictions.” (FOF ¶ 17.) In the multi-stage area,
where larger turbines are assembled, some of the required “lifting, pushing, pulling,
and torqueing . . . [were] beyond his restrictions.” (Id.) Although Claimant has
worked in both areas since his return to work, he always works with someone else
in the multi-stage area due to his restrictions. Claimant, who is a union shop steward
responsible for reviewing Employer’s overtime policies, explained the overtime



                                          5
process, including the requirement that the worker with the lowest overtime hours
be offered overtime first and charging those who refuse overtime with double the
number of hours offered. Additionally, Claimant explained that the CBA authorizes
Employer to skip over a worker for overtime purposes if the worker “is unable to
carry his shift,” meaning that the worker is unable to perform all of the duties
associated with the job classification. (Id.) Because Claimant cannot perform all of
the duties required by his job, he has been skipped over for overtime. In particular,
Claimant noted that, absent the restrictions related to his work injury, he would be
able to work alone in the multi-stage area and Employer would not be able to skip
over him on the basis that he cannot carry his shift and offer the overtime to others.
      A co-worker (Co-Worker) from Claimant’s department testified, confirming
the overtime policy and the ability of Employer to skip over a worker who cannot
carry his shift in offering overtime. Co-Worker indicated that he heard Supervisor
and Area Manager inform Claimant that Claimant could not work overtime in the
multi-stage area due to Claimant’s work restrictions. Co-Worker explained that he
frequently works with Claimant in both the single-stage and multi-stage areas and
has to assist Claimant in performing certain job duties that Claimant is unable to
perform.
      The WCJ did not find the testimony of Supervisor, Risk Manager, and Area
Manager credible or persuasive that the number of overtime hours Employer offered
its employees have been greatly reduced due to a downturn in its business. The WCJ
explained that the wage evidence presented by Employer revealed that, between
March 5, 2015, and July 2, 2015, Claimant and other workers in his department
earned wages that were greater than Claimant’s AWW on multiple occasions.
Further, he observed that Employer’s witnesses testified that Claimant and his 5 co-



                                          6
workers were working 40-hour work weeks and overtime continued to be available
to the workers in that department. As for Employer’s exhibits comparing Claimant’s
overtime hours and wages to those of his co-workers, the WCJ explained that such
exhibits were “difficult to accurately compare Claimant’s time of injury [AWW] and
Workers’ Compensation benefits combined with that of the other [workers] in the
Claimant’s department.” (FOF ¶ 19.) For example, he noted that Exhibit G reflected
that a number of employees refused significant amounts of overtime compared to
the amount of overtime they worked. Further, the WCJ observed that there was no
evidence that any of Claimant’s co-workers were a group leader, earning the same
increased hourly wage as Claimant, and, therefore, were similarly situated to
Claimant.
      Based on these findings of fact, the WCJ concluded that Employer did not
meet its burden of proving that Claimant’s current loss of earnings is not caused by
his work injury, but by a downturn in Employer’s business, or that the combined
amount Claimant receives in wages and Workers’ Compensation benefits exceed the
wages of similarly-situated employees. (Id.; WCJ Decision, Conclusions of Law
(COL) ¶¶ 2-3.) Accordingly, the WCJ denied and dismissed the Petition and
directed Employer to continue to pay Claimant temporary partial disability benefits
based on the difference between Claimant’s time of injury AWW and his current
earnings. (WCJ Order.)
      Employer appealed to the Board, arguing that the WCJ’s Decision was not
supported by substantial, competent evidence. The Board concluded that substantial
and competent evidence supported the WCJ’s Decision and that, because the WCJ




                                         7
did not credit Employer’s evidence, Employer could not meet its burden of proof on
the Petition. (Board Op. at 6-7.) Employer now petitions this Court for review.8
       On appeal, Employer concedes that Claimant has ongoing restrictions due to
his work injury, (Employer’s Br. at 16), but argues it presented overwhelming
evidence, unchallenged by Claimant, that supported its contention that the reduction
in Claimant’s earnings was due to an economic downturn, not his work injury.
According to Employer, it had clearly satisfied its burden of proof with: a) the
unrefuted testimony of its witnesses; b) Exhibit D, which shows that Claimant’s
average weekly wage for an 18-week period was $1,642.51, $302.73 less than his
AWW; and c) Exhibit F, which shows a drop in overtime hours for Claimant and
another similarly-situated employee between 2014 and 2015. (R.R. at 222a, 224a-
25a). Employer further asserts that Claimant is not entitled to ongoing temporary
partial disability benefits pursuant to Section 306(b)(1) of the Act because he is
earning the same wages as all similarly-situated employees. For these reasons,
Employer argues, it was error to deny the Petition.
       In workers’ compensation parlance, the term “disability” is synonymous with
a loss of earning power. Landmark Constructors, Inc. v. Workers’ Comp. Appeal
Bd. (Costello), 747 A.2d 850, 854 (Pa. 2000). Pursuant to Section 306(b)(1) of the
Act, an employee whose earning power is decreased by his work injury is entitled to
partial disability benefits in the amount of “sixty-six and two-thirds per centum of
the difference between the [employee’s pre-injury AWW] and the earning power of
the employe[e] thereafter[.]” 77 P.S. § 512(1). This provision is limited to a partial


       8
          “Our scope of review is limited to determining whether constitutional rights were
violated, whether the adjudication is in accordance with the law[,] or whether necessary findings
of fact are supported by substantial evidence.” City of Phila. v. Workers’ Comp. Appeal Bd.
(Sherlock), 934 A.2d 156, 159 n.5 (Pa. Cmwlth. 2007).


                                               8
disability that is “caused by the compensable injury.” Id. “A claimant whose post-
injury earnings are less than the pre-injury earnings is not automatically entitled to
partial disability benefits.” Donahay v. Workers’ Comp. Appeal Bd. (Skills of Cent.
PA, Inc.), 109 A.3d 787, 793 (Pa. Cmwlth. 2015) (citing Harle v. Workmen’s Comp.
Appeal Bd. (Telegraph Press, Inc.), 658 A.2d 766, 769 (Pa. 1995)). “If the reduction
in earnings is not tied to a loss of earning power attributable to the work injury, no
disability benefits are due.” Id. One such circumstance is where a claimant’s
earnings are reduced due to economic circumstances. Id. at 796. The employer
bears the burden of proving its entitlement to a suspension of a claimant’s benefits.
Landmark Constructors, Inc., 747 A.2d at 853 (stating the employer has the “burden
of proving entitlement to a modification of benefits”).
      Here, Employer attempted to meet its burden of proof through the testimony
of Supervisor, Risk Manager, and Area Manager, and the introduction of multiple
exhibits. However, the WCJ did not find Employer’s witnesses’ testimony credible
or persuasive that Claimant’s loss of earnings was related to an economic downturn,
and not his work injury. The WCJ was further unpersuaded by Employer’s evidence
comparing Claimant’s and his co-workers’ wages.            The WCJ explained his
evidentiary weight determinations based on what the WCJ considered inadequacies
in Employer’s evidence. (FOF ¶ 19.) The WCJ explained that, notwithstanding the
witnesses’ testimony of an economic downturn, they also testified that the workers
in Claimant’s department were still working full 40-hour weeks and were working
overtime on non-holiday weekends in accordance with the CBA provisions. He
further pointed out that Employer’s evidence showed that many workers, including
Claimant, were earning more than Claimant’s AWW on numerous occasions. (Id.)
Finally, the WCJ expressed that, because the overtime provisions of the CBA



                                          9
allowed workers to refuse overtime, it was difficult to accurately compare
Claimant’s combined wages and partial disability benefits with the earnings of other
workers in his department. The WCJ also observed that there was no evidence that
any of Claimant’s co-workers were a group leader, earning the same increased
hourly wages as Claimant, and, therefore, were similarly situated to Claimant. The
WCJ concluded that some of the earnings against which Claimant’s earnings were
being compared were lower due to those workers refusing to work overtime, and
that these co-workers were not similarly situated to Claimant.
      In arguing its evidence satisfied its burden of proof, Employer essentially
requests this Court to reweigh the evidence and find in its favor. However, it is well-
settled that the WCJ is the fact-finder, and the review of the witnesses’ testimony
and determinations as to the weight and credibility of that evidence are solely for the
WCJ. Miller v. Workers’ Comp. Appeal Bd. (Millard Refrigerated Serv. and Sentry
Claims Serv.), 47 A.3d 206, 209 (Pa. Cmwlth. 2012). “A WCJ may accept or reject
the testimony of any witness in whole or in part.” Id. “[T]he appellate role is not to
reweigh the evidence or to review the credibility of the witnesses.” Bethenergy
Mines, Inc. v. Workmen’s Comp. Appeal Bd. (Skirpan), 612 A.2d 434, 437 (Pa.
1992). The WCJ’s explanations for why he rejected Employer’s evidence as not
credible or persuasive are supported by the record. Despite the testimony of
Employer’s witnesses that it had cut overtime hours, overtime was being offered on
non-holiday weekends and there were multiple weeks during which workers earned
more than Claimant’s AWW. Furthermore, the fact that workers could refuse
offered overtime makes it difficult to determine whether the decrease in earnings
was related to an economic downturn or to the workers’ decision not to work
overtime and to compare Claimant’s earnings to those co-workers, who were not



                                          10
group leaders earning the same hourly wage as Claimant. Moreover, the fact that
Claimant, on average, was making less than his AWW is not dispositive given the
two competing explanations offered for that reduction: Employer’s conscientious
effort to cut costs because of the economic downturn in the oil industry and the
reduction of overtime offered to Claimant because of his inability to carry his shift
due to the conceded restrictions related to his work injury. The WCJ weighed the
evidence, found Employer’s evidence not credible or persuasive, and provided an
explanation that is supported by the record. We will not disturb that determination.
Therefore, because the WCJ did not credit Employer’s evidence, Employer could
not meet its burden of proving a suspension based on the assertion that Claimant’s
reduction in earnings was not caused by his work injury.
      Employer also argues that the WCJ capriciously disregarded its evidence and
did not provide a rational basis for rejecting the overwhelming evidence that
Claimant’s reduction in earnings was due to an economic downturn and Claimant
currently was earning the same wages as similarly-situated employees.
      Section 422(a) of the Act requires that a WCJ issue a reasoned decision and
provides, in pertinent part:

      All parties to an adjudicatory proceeding are entitled to a reasoned
      decision containing findings of fact and conclusions of law based upon
      the evidence as a whole which clearly and concisely states and explains
      the rationale for the decisions so that all can determine why and how a
      particular result was reached. The workers’ compensation judge shall
      specify the evidence upon which the workers’ compensation judge
      relies and state the reasons for accepting it in conformity with this
      section. When faced with conflicting evidence, the workers’
      compensation judge must adequately explain the reasons for rejecting
      or discrediting competent evidence. Uncontroverted evidence may not
      be rejected for no reason or for an irrational reason; the workers’
      compensation judge must identify that evidence and explain adequately



                                         11
      the reasons for its rejection. The adjudication shall provide the basis
      for meaningful appellate review.

77 P.S. § 834. To be “reasoned,” an opinion must allow for adequate appellate
review by the Board without further elucidation and by this Court under the
applicable review standards. Daniels v. Workers’ Comp. Appeal Bd. (Tristate
Transp.), 828 A.2d 1043, 1052 (Pa. 2003). Moreover, “[a] capricious disregard of
the evidence . . . is a deliberate and baseless disregard of apparently trustworthy
evidence.” Williams v. Workers’ Comp. Appeal Bd. (USX Corp./Fairless Works),
862 A.2d 137, 145 (Pa. Cmwlth. 2004). However, a “WCJ is not required to accept
even uncontradicted testimony” and the “express consideration and rejection” of
evidence as not credible is not a capricious disregard of that evidence. Id. at 144-
45.
      As is apparent from our above analyses, the WCJ’s Decision permitted this
Court to perform effective appellate review of the issues resolved therein. The WCJ
made findings of fact and conclusions of law, stated his rationale for his decision
denying the Petition, resolved conflicts in credibility, and explained the reasons why
he rejected Employer’s evidence. Thus, the WCJ’s Decision was reasoned under
Section 422(a). Additionally, there was no capricious disregard because the WCJ
expressly considered and rejected Employer’s evidence as not credible or persuasive
and provided explanations, supported by the record, for that determination. Thus, it
cannot be said that the WCJ’s determination was “a deliberate and baseless
disregard” of Employer’s evidence. Williams, 862 A.2d at 145.
      For the foregoing reasons, we affirm the Board’s Order.


                                       _____________________________________
                                       RENÉE COHN JUBELIRER, Judge


                                         12
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Elliott Company and Constitution       :
States Services, LLC,                  :
                       Petitioners     :
                                       :
                  v.                   :   No. 786 C.D. 2017
                                       :
Workers’ Compensation Appeal           :
Board (Mattucci),                      :
                      Respondent       :


                                 ORDER


      NOW, January 11, 2018, the Order of the Workers’ Compensation Appeal
Board, entered in the above-captioned matter, is AFFIRMED.



                                     _____________________________________
                                     RENÉE COHN JUBELIRER, Judge
