           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


William J. Church,                  :
                 Petitioner         :
                                    :
            v.                      :                No. 1068 C.D. 2015
                                    :                Submitted: December 24, 2015
Workers’ Compensation Appeal        :
Board (Wayne Cook t/a Cook          :
Landscaping and Fleming Termite and :
Pest Control),                      :
                 Respondents        :


BEFORE:          HONORABLE DAN PELLEGRINI, President Judge1
                 HONORABLE PATRICIA A. McCULLOUGH, Judge
                 HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION BY
SENIOR JUDGE COLINS                                               FILED: March 18, 2016

                 William J. Church (Claimant) petitions for review of an order of the
Workers’ Compensation Appeal Board (Board) that affirmed the decision and
order of the Workers’ Compensation Judge2 (WCJ) denying his petition, filed in
2011, to reinstate his temporary total disability benefits under the Workers’
Compensation Act (the Act)3 (Reinstatement Petition) and an amendment of that
petition in 2012, to include a request for penalties (Penalty Petition). We affirm.

1
 This case was assigned to the opinion writer on or before December 31, 2015, when President
Judge Pellegrini assumed the status of senior judge.

2
  The Reinstatement Petition and the Joinder Petition that followed were originally assigned to
WCJ Thomas Hines on August 12, 2011; following Judge Hines’ retirement, the Petitions were
reassigned to WCJ Kelly F. Melcher.

3
    Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
(Footnote continued on next page…)
             On July 29, 2004, Claimant sustained a work-related injury in the
nature of a L5-S1 herniated disk while employed by Wayne Cook t/a Cook
Landscaping (Employer). (WCJ Decision.) On August 10, 2004, Employer issued
a Notice of Temporary Compensation Payable (1st NTCP) for that injury
describing it as a “herniated disc;” the notice was dated August 10, 2004, indicated
an average weekly wage of $973.81 and a compensation rate of $649.21, and was
stamped as received by the Bureau of Workers’ Compensation (Bureau) on August
11, 2004. (Board Decision at 1; Claimant Ex. C-1.) Employer issued a second
Notice of Temporary Compensation Payable (2nd NTCP), also dated August 10,
2004, which was clearly marked “CORRECTED;” the amended notice described
the same injury, but indicated a different average weekly wage of $486.90 and a
different compensation rate of $345, and was stamped as received by the Bureau
on August 18, 2004.      (Id.)   Following payment of benefits to Claimant for
approximately 10 weeks, on October 11, 2004 Claimant returned to work and on
that same date, Employer filed a Notice Stopping Temporary Compensation
(NSTC) and a Notice of Workers’ Compensation Denial (NCD), indicating that,
although an injury took place, Claimant was not disabled as a result of the injury
and further indicating that all medical treatment related to the work injury of July
29, 2004 would be reviewed for payment. (Id.)
              On August 8, 2011, Claimant filed a Reinstatement Petition alleging
that, as of October 11, 2004, his condition had worsened and his injury was
causing decreased earning power. (Reinstatement Petition; WCJ Decision at 1.)
At a May 14, 2013 hearing on the Reinstatement Petition, Claimant’s counsel


(continued…)


                                         2
clarified that the date from which Claimant was seeking reinstatement was August
5, 2010. (May 14, 2013 Hearing Transcript at 33.) The Reinstatement Petition
indicated that compensation had been paid to Claimant at a weekly rate of $345
with an average weekly wage of $486.90. (Reinstatement Petition.) In its Answer
to the Reinstatement Petition, Employer alleged that it was barred by the applicable
statute of limitations and was procedurally improper; however, on December 7,
2011, WCJ Hines, the WCJ to which the case was originally assigned, denied
Employer’s Motion to Dismiss and listed the matter for Claimant’s medical
evidence. (Interlocutory Order of WCJ Hines.) On December 22, 2011, Employer
filed a Joinder Petition, alleging that Fleming Termite and Pest Control (Fleming)
was the employer liable for benefits.            (Petition for Joinder of Additional
Defendant; WCJ Decision at 1.)          The Reinstatement Petition and the Joinder
Petition were consolidated for litigation.
              The WCJ held an evidentiary hearing on September 1, 2011 at which
Claimant testified. Claimant subsequently presented the May 8, 2012 deposition
testimony of Dr. Bruce Menkowitz, a board certified orthopedic surgeon who
treated Claimant beginning on August 30, 2011.                  Claimant amended the
Reinstatement Petition to include the Penalty Petition on the ground that the 1st
NTCP was not properly withdrawn at the time the 2nd NTCP was issued.4 At a
hearing held on May 14, 2013, Employer presented the testimony of Wayne Cook,
Employer’s owner and sole proprietor, and Claimant testified in rebuttal; Employer




4
  The WCJ noted in her decision that Claimant’s amendment to the Reinstatement Petition to
include a Penalty Petition occurred during a hearing held on May 22, 2012; however, notes of
testimony from that hearing are not included as part of the certified record.


                                             3
also presented the deposition testimony of Dr. Richard Mandel, a board certified
orthopedic surgeon who examined Claimant on April 16, 2012.
               At the September 1, 2011 hearing, Claimant testified that he worked
off and on at Employer from 1996 or 1997 until July 29, 2004 as a foreman, with
job responsibilities including driving, operating machinery, lifting and moving
debris, and planting shrubs. (September 1, 2011 Hearing Transcript (9/1/11 H.T.)
at 11.) He stated that on July 29, 2004, while unloading equipment, he lifted up a
lawnmower from the back of a truck and as he twisted to set it down, he felt pain in
his back. (Id. at 12.) Claimant stated that within a day or two, he stopped working
and sought treatment at Business Health and later at NovaCare, for rehabilitation.
(Id. at 11-12.) After receiving weekly workers’ compensation benefits for
approximately two and a half months, Claimant testified, he was eager to return to
work and did so on October 11, 2004, although he had pain in his lower back and
initially “took it real easy” and performed lighter duties; however, he did not
receive any medical treatment after he returned to work.                       (Id. at 14-15.)
Claimant testified that he had no medical insurance, and stated that he related his
back pain to Cook, who was his supervisor, after his return to work and more often
as time went on, but he was never referred to a physician by Employer and
Claimant believed that his case was closed. (Id. at 15-16.) Claimant testified that
he continued to work at Employer until mid-2008, when he could no longer
perform his job because of his back pain.5 (Id. at 17.) Claimant stated that shortly

5
  Cook testified that Claimant never advised him that he would not be returning to work after
May 31, 2008. (May 14, 2013 Hearing Transcript at 17.) Cook stated that after Claimant was
injured, and following his return to work, he resumed his regular job. (Id.) Claimant testified in
rebuttal that he complained to Cook on several occasions about his back, but felt that he was not
being taken seriously, and that is why he left his employment; he conceded that he had not given
Cook any notice that he was leaving. (Id. at 25.)


                                                4
after he left Employer, he attempted to start a scrap metal business, but the
business was a failure and ended within one month. (Id. at 21.) He stated that he
worked again in Spring 2009 as an exterminator at Fleming Pest Control, but
remained on the job for less than 90 days, because his worsening lower back pain
made it difficult to do the required chemical spraying work in crawl spaces. (Id. at
19-20.) In August 2010, Claimant testified, he obtained medical insurance through
a welfare program, and began treatment with a physician, Dr. Cipriano; Claimant
stated that he commenced physical therapy, and has recently received treatment
from Dr. Menkowitz. (Id. at 22.) On cross-examination, Claimant allowed that a
Business Health form dated October 8, 2004 indicated that he had no pain or
discomfort and no sciatica, and further indicated that he had been discharged to full
duty work on that date, and returned to his regular job, with his regular rate of pay.
(Id. at 32.)
               Dr. Mandel opined, within a reasonable degree of medical certainty,
that on the date of the work injury, Claimant sustained a central disc herniation at
L5-S1 and that the disk herniation had resolved as of April 16, 2012, the date of his
examination. (Employer Ex. D-1, Mandel Dep. at 38, 88.) He was in agreement
with the diagnosis of the radiologist who read Claimant’s 2012 MRI, who
indicated in his report that there was no herniation but rather a protrusion; Dr.
Mandel opined that the 2012 MRI showed degenerative changes at multiple levels
in the lumbar spine including the L5-S1 level, where there was also a central disk
bulge or protrusion, but no residual herniation. (Id. at 34, 38.) He testified further
that Claimant had degenerative disease at multiple levels, at L3 all the way through
S1, and stated that this was documented in the MRI that was done on August 4,
2004. (Id. at 89.) Dr. Mandel opined that based upon his clinical examination,


                                          5
Claimant did not exhibit any findings indicative of radiculopathy and/or disk
herniation at any level, including L5-S1, and exhibited no objective abnormalities
at all, with no muscle spasm, no true restriction of motion, a negative straight leg
raising test and a negative sitting root test, no flattening of lumbar lordosis, no loss
of reflexes, and no atrophy. (Id. at 38-39.) He opined that during the examination,
Claimant exhibited multiple signs of embellishment or symptom magnification.
(Id. at 22-25, 27-28, 45.) He testified that a lumbar MRI completed on August 4,
2004 following the injury described a central herniation at L5-S1 superimposed
upon degenerative disk disease, with no root compression or dural compression,
which he stated was significant because it suggested that no radiculopathy would
occur in association with the herniation. (Id. at 29.)
               Dr. Mandel noted that another orthopedist, Dr. Steven Valentino,
saw Claimant at the end of September, 2004, and diagnosed a central herniation
with no nerve root compression and reported an intact neurologic exam; he stated
that Dr. Valentino’s impression was of resolving lumbar strain and resolving
aggravation of lumbar degenerative disk disease with a central herniation at L5-S1.
(Id. at 30.)   Dr. Mandel testified that he reviewed lumbar radiographs from
Montgomery Hospital from August 30, 2010 that reported no acute changes,
degenerative disk disease at L5-S1, and a probable old avulsion fracture from the
anterior aspect of L4. (Id. at 31.) Dr. Mandel opined that, within a reasonable
degree of medical certainty, at least as of the date of his examination, Claimant
was fully recovered from his work injury and was able to return to his usual
employment as a foreman and to those duties he described as having performed at
Employer without restrictions or limitations. (Id. at 46.)




                                           6
             Dr. Menkowitz testified that he examined Claimant for the first time
on August 30, 2011; at that time, he noted tenderness in the paraspinal muscles,
and a reproduction of back pain with straight leg raising, lasegue, and sitting root
tests; he reported that the remainder of the neurovascular examination was within
normal limits. (Claimant Exhibit C-4, Menkowitz Dep. at 11.) Based on his
examination and a review of Claimant’s diagnostic studies, Dr. Menkowitz opined
that Claimant had debilitating spinal disease post-injury with disc herniation at L5-
S1 and an L4 vertebral fracture, and was not capable of working. (Id. at 13.) Dr.
Menkowitz testified that he advised Claimant to obtain an MRI and bone scan, but
Claimant did not undergo these studies until April 2012. (Id. at 14, 16.) Upon
review of the MRI and bone scan, Dr. Menkowitz opined that the 2012 MRI
revealed a worsening from the August 2004 MRI because Claimant had a
reduction in disc height along with instability and retrolisthesis; he opined that the
2012 bone scan revealed evidence of degenerative changes of the lower lumbar
spine consistent with the MRI findings. (Id. at 18-19.) Dr. Menkowitz opined,
within a reasonable degree of medical certainty, that Claimant was unable to
perform any type of gainful employment since August 5, 2010. (Id. at 25.)
              Dr. Menkowitz further testified as to his reasons for disagreeing with
Dr. Mandel’s opinion that Claimant was fully recovered from his work injury,
stating that Claimant has not recovered but rather the degenerative changes at the
L5-S1 level have been accelerated; Dr. Menkowitz opined that the disc function
has failed and as such there is instability at the L5-S1 level leading to injuries to
motion. (Id. at 27.) On cross-examination, Dr. Menkowitz conceded that the
August 4, 2004 MRI findings revealed degenerative changes that pre-dated
Claimant’s July 2004 work injury, and that degenerative disc disease and


                                          7
degenerative disc space narrowing, without any trauma, can cause protrusion and
herniation of lumbar discs. (Id. at 35.) Dr. Menkowitz further conceded that
degenerative disease is progressive, even in the absence of trauma, and that the
MRI report from April 2012 indicates no significant interval change as compared
to the August 2004 MRI. (Id. at 36, 39.)
              On October 30, 2013, the WCJ issued a decision dismissing
Claimant’s Reinstatement Petition, Penalty Petition, and claim for counsel fees for
unreasonable contest; the WCJ also dismissed Employer’s Joinder Petition and its
request for termination.6 (WCJ Decision.) The WCJ found, inter alia, that:

              Based on a review of the evidence as a whole, this Judge
              finds the testimony of Claimant neither credible nor
              persuasive as it pertains to his inability to work due to his
              work injury. This determination is based, in large part,
              on this Judge’s personal observation of Claimant’s affect
              and demeanor during his live testimony. Furthermore,
              Claimant did not seek medical treatment from the time he
              returned to work without restrictions in October 2004
              until more than two years after he stopped working for
              Employer. He did not even seek any treatment when he
              alleges he had an increase in symptoms while working
              for Fleming Pest Control.
(WCJ Decision, Findings of Fact (F.F.) ¶17.) The WCJ found the testimony of Dr.
Menkowitz neither credible nor persuasive as it pertained to Claimant’s inability to
work due to his work injury; she noted that Dr. Menkowitz ignored the fact that
Claimant had returned to full duty work for approximately a year and a half after


6
 Employer noted during the May 14, 2013 hearing that it had moved, during the 2012 deposition
of Dr. Mandel, and based upon the deposition of Dr. Mandel, to have its Answer to the
Reinstatement Petition considered to be a Petition to Terminate compensation as of April 16,
2012 as a result of Claimant’s full recovery from his work-related injury, and that none of the
parties objected thereto. (May 14, 2013 H.T. at 8; Mandel Dep. at 55.)


                                              8
being released to full duty work by his treating physicians. (Id., F.F. ¶18.) The
WCJ also found significant Dr. Menkowitz’ testimony that the 2012 MRI revealed
no significant interval change as compared to Claimant’s 2004 MRI. (Id.)
              The WCJ found, based upon a review of the evidence as a whole,
that the opinion of Dr. Mandel was more credible than that of Dr. Menkowitz, in
part. (Id., F.F. ¶19.) She accepted Dr. Mandel’s opinion that Claimant’s work
injury has not caused Claimant’s inability to work, and found that the objective
diagnostic studies support this opinion. (Id.) However, the WCJ rejected Dr.
Mandel’s opinion that Claimant’s work with Fleming caused an aggravation or
new injury, noting that Claimant had only testified that his work at Fleming caused
increased symptoms, but Claimant had also indicated increased symptoms while
working for Employer, and Claimant was not particularly credible. (Id.) The WCJ
further rejected Dr. Mandel’s opinion that Claimant has fully recovered from his
work injury, noting Dr. Mandel’s concession that although the herniation had
disappeared, Claimant continued to have a protrusion or bulge. (Id.)
            The WCJ concluded that Claimant failed to meet his burden of proof
with regard to the Reinstatement and Penalty Petitions, stating that Claimant was
not entitled to temporary total disability benefits, and thus there is nothing upon
which to base a penalty.     (Id., F.F. ¶20.)   The WCJ further concluded that
Employer failed to prove that Claimant is fully recovered, and failed to meet its
burden of proof in connection with the Joinder Petition; however, she concluded
that Employer presented a reasonable contest. (WCJ Decision, Conclusions of
Law.)




                                        9
              Claimant appealed, and Employer cross-appealed. On June 2, 2015,
the Board affirmed the WCJ Decision. This appeal followed.7
               As an initial matter, we reject Claimant’s first argument, that the 1st
NTCP, which provided for a higher weekly wage and compensation rate, is in
effect a separate Notice of Temporary Compensation Payable (NTCP) that should
be deemed to have converted to a Notice of Compensation Payable (NCP), and
therefore requires the continuation of payments thereunder. Claimant argues that
in order to properly amend the 1st NTCP, Employer was required to file a Notice
Stopping Temporary Compensation (NSTC), followed by the issuance of a new
NTCP at the corrected compensation rate. As noted by the Board, there is simply
no provision in the Act or the Regulations promulgated thereunder to support this
contention.
               Section 406.1(a) of the Act, added by the Act of February 8, 1972,
P.L. 25, as amended, 77 P.S. §717.1(a), delineates the manner in which an
employer may compensate an injured employee, pursuant to either: (i) an
agreement upon the compensation payable, (ii) a NCP, or (iii) a NTCP.
Agreements upon compensation payable and NCPs are specifically provided for in
Section 407, 77 P.S. §731. Subsection 406.1(b) of the Act, 77 P.S. §717.1(b)
establishes that payments of compensation pursuant to agreements or pursuant to
NCPs may be suspended, terminated, reduced or otherwise modified by petition
and subject to right of hearing as provided in Section 413, 77 P.S. §§771-774.1.


7
  Our review is limited to determining whether an error of law was committed, whether the
WCJ’s necessary findings of fact are supported by substantial evidence or whether Board
procedures or constitutional rights were violated. Anderson v. Workers’ Compensation Appeal
Board (Penn Center for Rehab), 15 A.3d 944, 947 n.1 (Pa. Cmwlth. 2010).



                                            10
                Sections 406.1(d)(1)-(6) of the Act address NTCPs; they are to be
employed in situations like the one sub judice, where an employer is uncertain
whether a claim is compensable under the Act or is uncertain of the extent of its
liability under the Act; in either case, an employer may initiate compensation
payments without prejudice and without admitting liability, pursuant to a NTCP as
prescribed by the Department of Labor & Industry (Department). Pursuant to
Subsections 406.1(d)(2)(i)-(iii) of the Act, a NTCP shall be sent to the claimant,
which notice shall inform the claimant: (i) that payment does not mean the
claimant’s employer is accepting responsibility for the injury or that a
compensation claim has been filed or commenced; (ii) that the claimant is entitled
to payment for up to ninety (90) days; and (iii) that in order to ensure continuation
of compensation payments, the claimant “may need to file a claim petition in a
timely fashion under section 315, enter into an agreement with his employer or
receive a notice of compensation payable ….”           77 P.S. §717.1(d)(2)(i)-(iii).
Subsection 406.1(d)(5)(i) provides that “if the employer ceases making payments
pursuant to a notice of temporary compensation payable, a notice in the form
prescribed by the department shall be sent to the claimant and a copy filed with the
department….” 77 P.S. §717.1(d)(5)(i). Subsection 406.1(d)(5)(ii) provides that
this notice, inter alia, shall notify the employee that he must now file a claim to
establish the liability of the employer. 77 P.S. §717.1(d)(5)(ii). Finally, subsection
406.1(d)(6) provides that if the employer fails to file such notice that the temporary
compensation has been stopped within the ninety-day period during which the
temporary compensation is payable, the employer shall be deemed to have
admitted liability and the NTCP shall be converted to a NCP.                 77 P.S.
§717.1(d)(6).


                                         11
              The regulations promulgated by the Bureau similarly distinguish
between NCPs and NTCPs, establishing notice filing procedures to be followed by
the employer, and requiring that a Statement of Wages be filed together with the
respective notices.8 Bureau Regulation Section 121.7a, 34 Pa. Code §121.7a,
which deals specifically with NTCPs, provides for the modification of a NTCP at
subsection 121.7a(c), 34 Pa. Code §121.7a(c), and directs the employer who
modifies the NTCP to file an amended NTCP form, to be clearly identified as
“amended;” this amended form need only contain the insurer’s signature and does
not require the signature of the employee. When an amended NTCP is filed, the
employer must also file a new Statement of Wages. 34 Pa. Code 121.7a(c)(1).
Significantly, subsection 121.7a(c)(2) makes clear that the subsection dealing with
modification does not apply upon the conversion of a NTCP to a NCP. 34 Pa.
Code §121.7 a(c)(2).
              Bureau Regulation Section 121.7, 34 Pa. Code §121.7, deals
specifically with NCPs, and provides a mechanism whereby an employer may file
a NCP based upon the employee’s estimated wages or compensation if the
employer has not obtained the wages necessary to properly calculate the
employee’s compensation payable; the regulation provides that the NCP may be
amended upon receipt of the employee’s actual wages; however, when such
amendment results in a decrease in the employee’s wage or compensation, the
employer is required to file a Supplemental Agreement for Compensation for


8
  Employer states that it filed a Statement of Wages together with the 1st NTCP that was
received by the Bureau on August 11, 2004, and filed a corrected Statement of Wages together
with the 2nd NTCP, which was received by the Bureau on August 18, 2004. These Statements
of Wages are not included in the certified record; however, the WCJ indicated that they were in
her possession during the May 14, 2013 hearing. (May 14, 2013 H.T. at 20-21.)


                                              12
Disability or Permanent Injury; similarly, Bureau Regulation Section 121.12
specifically addresses the correction of errors in computing wages in a
compensation agreement or NCP, and also directs that in instances where changes
result in a decrease in the employee’s wage or compensation, the employer shall
file the Supplemental Agreement for Compensation for Disability or Permanent
Injury form. 34 Pa. Code §121.12.
            Finally, Bureau Regulation Section 121.17 addresses changes in
compensation, and with respect to the stopping of temporary compensation under a
NTCP, directs that an employer who ceases such temporary payments must file
either: (i) a NSTC, together with a Notice of Workers’ Compensation Denial
(NCD), within a prescribed time frame; or (ii) a NCP; or (iii) an Agreement for
Compensation for Disability or Permanent Injury. 34 Pa. Code §121.17.
            Here, up until the time Claimant returned to work, Employer did not
cease making temporary compensation payments, but rather made a correction to
the 1st NTCP and filed the 2nd NTCP, together with filing a replacement Wage
Statement, pursuant to the requirements set forth in Sections 121.7a(c) and
121.7a(c)(1), 34 Pa. Code §§121.7a(c) and 121.7a(c)(1). Employer did not cease
making temporary compensation payments until October 11, 2004 when, in
accordance with Subsection 406.1(d)(5)(i) of the Act, it duly notified Claimant that
payments were being stopped by filing a NSTC and a NCD as prescribed by the
Department. Nothing in the Act or the Bureau Regulations can be interpreted to
have required Employer to file a NSTC or NCD at the time it properly amended
the 1st NTCP and contrary to Claimant’s assertion, we find that there is no conflict
between Section 406.1 of the Act, and Bureau Regulation Section 121.71a.
Claimant cites this Court’s decision in Gereyes v. Workers’ Compensation Appeal


                                        13
Board (New Knight, Inc.), 793 A.2d 1017 (Pa. Cmwlth. 2002), to support its
contention that a reduction in the amount paid an employee pursuant to a NTCP
constitutes a violation of the Act. Gereyes, however, is not applicable here as it
did not involve the amendment or correction of a NTCP, but rather was a case in
which the employer unilaterally reduced the amount of compensation being paid
the employee after his return to work with a partial wage loss. 793 A.2d at 1021.
              Section 406.1 makes clear that upon the cessation of payments
pursuant to a NTCP, an employee must file a claim to establish the liability of the
employer, and the payment of compensation under a NTCP may not be used to
support a claim for compensation. Bureau Regulation Section 121.7a deals solely
with the NTCP, provides for its modification by amendment and is clearly not
applicable in the circumstance where a NTCP has been converted to a NCP and the
employer is deemed to have admitted liability.
              Here, the 1st NTCP was properly amended and there was no
conversion of NTCP to NCP. Accordingly, Claimant’s contention that the 1st
NTCP converted to a NCP and therefore Employer was obligated to pay benefits at
the rate of $649.21 per week for all periods of time where Claimant was not
working is completely without merit. As such, the Board properly affirmed the
WCJ’s determination that no violation of the Act occurred in this regard, no
penalty provisions for failure to timely pay benefits were triggered,9 and
Employer’s contest was reasonable.

9
  Section 435 of the Act, added by Section 3 of the Act of February 8, 1972, P.L. 25, permits a
judge to award a penalty when it is apparent that an employer and/or insurer has violated the
workers’ compensation statute or regulations. 77 P.S. §991. It is within the judge’s sound
discretion whether to impose a penalty on an employer. Musko v. Workers’ Compensation
Appeal Board (Calgon Carbon Corporation), 729 A.2d 657 (Pa. Cmwlth. 1999).



                                              14
               In its brief, Employer counters that Claimant was not on a suspension
status when he returned to work because his claim in fact was a denied claim, 10 and
thereby Claimant should have filed a timely Claim Petition and not a
Reinstatement Petition; Employer argues that Claimant could not file to “reinstate”
a denied claim, and his claim was time barred. In its decision, the WCJ found that
Employer made a motion to dismiss the Reinstatement Petition as untimely at the
September 1, 2011 hearing, and WCJ Hines, to which the case was originally
assigned, dismissed the motion. (WCJ Decision, Finding of Fact (F.F.) ¶1.) The
Board did not address the timeliness of the Reinstatement Petition, nor did it
determine that Claimant was in error in filing such petition. In its decision, the
WCJ noted that the October 11, 2004 NCD issued by Employer acknowledged that
an injury took place, but indicated that Claimant was not disabled as a result of the
injury and further indicated that all medical treatment related to the work injury
would be reviewed for payment; the WCJ stated that “[e]ssentially, the [NCD]
acted as a Medical Only Notice of Compensation Payable (MONCP).” (WCJ
Decision, Procedural History; Claimant’s Exhibit C-1, Notice of Workers’
Compensation Denial.) In affirming the WCJ’s decision not to assess penalties
against Employer for any failure to continue payments to Claimant after it ceased
payments and issued a NSTC and NCD, the Board also referenced a Medical Only

10
   On the NSTC form filed, Employer checked the box where it is clearly stated: “WE HAVE
DECIDED NOT TO ACCEPT LIABILITY AND ATTACHED IS A NOTICE OF WORKERS’
COMPENSATION DENIAL. IF YOU BELIEVE YOU SUFFERED A WORK-RELATED
INJURY, YOU WILL BE REQUIRED TO FILE A CLAIM PETITION WITH THE BUREAU
OF WORKERS’ COMPENSATION IN ORDER TO PROTECT YOUR FUTURE RIGHTS.”
(Claimant’s Exhibit C-1.) The NSTC form further indicates that “[y]ou have three (3) years from
the date of injury or discovery of your condition to file a Claim Petition for benefits. Since time
limits can vary depending on the facts of your situation, you may wish to contact an attorney if
you believe you may have a claim.” (Id.)


                                                15
NCP, stating, “[t]he WCJ correctly found that [Employer’s] issuance of the NSTC
accepting a work injury but denying disability acted as a “Medical Only” NCP…”
(Board Opinion at 5.)    Because the WCJ and the Board found that there was a
Medical Only NCP, we find no error in their decisions to treat the claim as
suspended with respect to Claimant’s disability benefits, allow the filing of a
Reinstatement Petition rather than a Claim Petition, and proceed to consider and
then dismiss the Reinstatement Petition.
            Claimant further argues that the Board erred as a matter of law in
failing to reverse the WCJ’s dismissal of the Reinstatement Petition, and in failing
to find that Employer engaged Claimant in an unreasonable contest. We do not
agree. A claimant who seeks reinstatement following a suspension of benefits
must prove that: (1) through no fault of his own, the claimant’s disability, i.e.,
earning power, is again adversely affected by the work-related injury; and (2) the
disability is a continuation of that which arose from his original claim. Bufford v.
Workers’ Compensation Appeal Board (North American Telecom), 2 A.3d 548,
558 (Pa. 2010). Determination of credibility of witnesses is the prerogative of the
WCJ, not the role of the Board or this Court. Furnari v. Workers’ Compensation
Appeal Board (Temple Inland), 90 A.3d 53, 59-60, 70 (Pa. Cmwlth. 2014); Gann
v. Workers’ Compensation Appeal Board (MBS Management/Wellington East
Development), 792 A.2d 701, 704 (Pa. Cmwlth. 2002). The WCJ has exclusive
province over questions of credibility and evidentiary weight, and may accept or
reject the testimony of any witness, including medical experts, in whole or in part.
Furnari, 90 A.3d at 59, 70; Young v. Workers’ Compensation Appeal Board
(Chubb Corporation), 88 A.3d 295 (Pa. Cmwlth. 2014). The WCJ rejected the
testimony of Dr. Menkowitz as it pertained to Claimant’s inability to work as


                                           16
neither credible nor persuasive because it was based, in part, on Claimant’s
testimony on this issue, which she rejected as not credible. (WCJ Decision, F.F.
¶18.) Here, Claimant’s arguments dispute both the credibility determinations of
the WCJ and the weight of the evidence, and he may do neither.
             Claimant further contends that the WCJ failed to render a reasoned
decision. As the Board aptly summarized:

            Section 422(a) of the [Act], 77 P.S. §834, provides that
            the WCJ shall file 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 decision so that all can
            determine why and how a particular result was reached.
            The adjudication shall provide a basis for meaningful
            appellate review. See Daniels v. Workers’ Compensation
            Appeal Board (Tristate Transportation), 828 A.2d 1043
            (Pa. 2003). Where the decision is sufficient for effective
            judicial review, such as with a summary of the testimony,
            and there is a showing of the grounds relied upon by the
            medical experts, and credible witnesses were identified,
            the “reasoned decision” provisions of Section 422(a) are
            satisfied. Bullen Cos. v. Workers’ Compensation Appeal
            Board (Housman), 960 A.2d 488 (Pa. Cmwlth. 2008).
            The WCJ did so in this case.

(Board Opinion at 12.) We find no error in the Board’s determination that the
WCJ neither disregarded competent evidence nor failed to issue a reasoned
decision.
            Finally, Claimant asserts that because he prevailed in connection with
Employer’s petition to terminate, he should therefore have been awarded
reimbursement of the litigation costs incurred in connection with the defense of
that petition. We find no error here. Section 440(a) of the Act, added by the Act
of February 8, 1972, P.L. 25, as amended, provides:
                                        17
            In any contested case where the insurer has contested
            liability in whole or in part, including contested cases
            involving petitions to terminate, reinstate, increase, reduce
            or otherwise modify compensation awards, agreements or
            other payment arrangements or to set aside final receipts,
            the employe ... in whose favor the matter at issue has been
            finally determined in whole or in part shall be awarded, in
            addition to the award for compensation, a reasonable sum
            for costs incurred for attorney’s fee, witnesses, necessary
            medical examination, and the value of unreimbursed lost
            time to attend the proceedings: Provided, that cost for
            attorney fees may be excluded when a reasonable basis for
            the contest has been established by the employer or the
            insurer.

77 P.S. §996(a). We have stated that an employer’s contest is reasonable if the
contest was brought to resolve a genuinely disputed issue, not merely to harass the
claimant.   Dworek v. Workmen’s Compensation Appeal Board (Ragnar Benson,
Inc.), 646 A.2d 713, 716 (Pa. Cmwlth. 1994). Here, the WCJ found that Employer
had presented a reasonable contest on the issue of whether Claimant was fully
recovered from his work injury. (WCJ Decision, Conclusions of Law.) Moreover,
Claimant failed to show that he incurred any costs on the request to terminate. In
Jones v. Workers’ Compensation Appeal Board (Steris Corporation), 874 A.2d
717, 722 (Pa. Cmwlth. 2005), we stated that where a claimant is only partially
successful, before costs are awarded, a determination must be made as to whether
the costs were incurred on the winning issue or the losing issue. “A claimant must
prevail on the contested issue in order to be awarded litigation costs.” 874 A.2d at
721, 722.   All of the non-lawyer litigation expenses related to the issues in
Claimant’s petitions, on which Claimant did not prevail, as Claimant’s medical




                                         18
testimony related to whether his condition had worsened and his work injury was
causing decreased earning power.
            For the foregoing reasons, we conclude that the WCJ committed no
error in denying Claimant’s Petitions in this matter. Accordingly, the order of the
Board is affirmed.



                                      ____________________________________
                                      JAMES GARDNER COLINS, Senior Judge




                                        19
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


William J. Church,                  :
                 Petitioner         :
                                    :
            v.                      :    No. 1068 C.D. 2015
                                    :
Workers’ Compensation Appeal        :
Board (Wayne Cook t/a Cook          :
Landscaping and Fleming Termite and :
Pest Control),                      :
                 Respondents        :


                                ORDER


            AND NOW, this 18th day of March, 2016, the order of the Workers’
Compensation Appeal Board in the above matter is AFFIRMED.




                                   ____________________________________
                                   JAMES GARDNER COLINS, Senior Judge
