         IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Donna Marie Price,                   :
                                     :
                          Petitioner :
                                     :
            v.                       :          No. 374 C.D. 2015
                                     :
Workers’ Compensation Appeal Board :            Submitted: September 18, 2015
(School District of Philadelphia),   :
                                     :
                          Respondent :



BEFORE:         HONORABLE RENÉE COHN JUBELIRER, Judge
                HONORABLE P. KEVIN BROBSON, Judge
                HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                                FILED: January 8, 2016

        Donna Marie Price (Claimant), previously known as Donna Sims, petitions
for review of an Order of the Workers’ Compensation Appeal Board (Board)
affirming a Workers’ Compensation Judge’s (WCJ) Decision granting Claimant’s
Petition to Review Compensation Benefits (Review Petition), granting, in part,
Claimant’s Penalty Petition, and granting the School District of Philadelphia’s
(Employer)        Petition    to    Modify/Suspend        Compensation     Benefits
(Modification/Suspension Petition). On appeal, Claimant argues that the WCJ
erred     and     abused     his   discretion    by:   (1)   granting    Employer’s
Modification/Suspension Petition based on a specific loss of Claimant’s entire left
foot when the issue before the WCJ was only the specific loss of Claimant’s left
big toe; (2) failing to re-open the record so that Claimant could introduce evidence
to rebut the WCJ’s finding of specific loss of Claimant’s entire left foot;1 (3)
granting Employer credit for the specific loss of her left foot from the date of the
injury instead of the date the description of her injury was expanded to include her
left foot; (4) denying her Penalty Petition when Employer violated the Workers’
Compensation         Act2    (Act)    by    unilaterally    reducing     Claimant’s      weekly
compensation rate; and (5) denying Claimant’s request for unreasonable contest
fees. Upon review, we affirm.


 I.    Background
       This case has a long and convoluted history which includes two previous
appeals to this Court. It began on November 7, 1991, when Claimant’s left big toe
struck a raised electrical outlet in the course and scope of her employment as a
food service worker with Employer. On February 5, 1992, Employer issued a
Notice of Compensation Payable (NCP) accepting a “LEFT FOOT BIG TOE”
injury. (NCP, Bureau’s Hr’g Ex. B-1.) The NCP states that payments will begin
on November 8, 1991 at a weekly compensation rate of $148.34. Employer issued
an Amended NCP on February 5, 1993, retroactively adjusting Claimant’s weekly
compensation rate to $145.33. (Amended NCP, Bureau’s Hr’g Ex. B-2.)


       1
          Claimant argues that the WCJ erred in denying her “Petition to Reopen the Record” so
that she could introduce new evidence on the issue of whether she suffered a specific loss of her
entire left foot; however, no such petition appears in the certified record and the WCJ’s Decision
does not address such a petition.

       2
           Act of June 2, 1915, P.L. 736, as amended, 72 P.S. §§ 1-1041.4, 2501-2708.

                                                2
       Between 1994 and 2007, Claimant and Employer were involved in a
protracted litigation, in which Employer unsuccessfully attempted to terminate
Claimant’s benefits and Claimant sought penalties multiple times against
Employer.3 The instant matter commenced on October 13, 2011, when Employer
filed its Modification/Suspension Petition. Therein, Employer alleges that, as of
September 7, 2011, Claimant’s injury was resolved into a specific loss.                        On

       3
         On October 6, 1994, Employer filed a termination petition alleging that, as of May 6,
1994, Claimant had fully recovered from her injuries. For reasons that are unclear in the record
before us, the matter was not acted upon until seven years later. In the interim Claimant filed a
penalty petition on December 19, 1994, alleging that Employer violated the Act by unlawfully
reducing her weekly compensation rate by filing the Amended NCP. The penalty petition was
withdrawn by Claimant and the withdrawal was accepted by a WCJ. On January 3, 1997,
Claimant once again filed a penalty petition alleging that Employer violated the Act by varying
the amount of weekly compensation through the Amended NCP. (Penalty Petition, January 3,
1997, Bureau’s Hr’g Ex. B-5.) The record before us is unclear on the final disposition of this
penalty petition.

       A WCJ granted Employer’s October 6, 1994 termination petition on October 18, 2001,
which the Board affirmed on December 2, 2002. In a decision filed September 9, 2003, this
Court reversed and held that the evidence did not support a finding that Claimant had fully
recovered from her injury. Sims v. Workers’ Compensation Appeal Board (The School District
of Philadelphia) (Pa. Cmwlth., No. 3071 C.D. 2002, filed September 9, 2003), slip op. at 8
(Bureau’s Hr’g Ex. B-7).

        Claimant filed another penalty petition in November 2004, alleging that Employer
violated the Act by refusing to approve certain medications and by failing to provide payment for
reasonable medical expenses. At a hearing before a WCJ, Claimant amended her penalty
petition to include an averment that Employer violated the Act by failing to pay Claimant the full
amount of indemnity benefits to which she was entitled. (WCJ Decision at 1, March 10, 2006,
Bureau’s Hr’g Ex. B-8). Upon review, the WCJ found, in relevant part, that Claimant failed to
meet her burden of proving that she was not receiving all her entitled benefits because “[w]hile it
appears that there might be a discrepancy between the amounts Employer paid Claimant for the
period ending July 1, 2001 and August 5, 2005, the evidence is vague as to when any
underpayment began.” (WCJ Decision, March 10, 2006, Conclusions of Law ¶ 3, Bureau’s Hr’g
Ex. B-8.) The Board affirmed and on appeal, we upheld the WCJ’s Decision finding Claimant’s
evidence insufficient to support her claim. Sims v. Workers’ Compensation Appeal Board (The
School District of Philadelphia), 928 A.2d 363, 369 (Pa. Cmwlth. 2007).

                                                3
December 7, 2011, Claimant filed her Review Petition alleging that the description
of her injury should be amended to include “aseptic necrosis, 1st metatarsal head,
left foot, resulting in multiple bilateral lower extremity complications and
consequential injuries.” (WCJ Decision at 1.) Claimant then filed a Penalty
Petition on January 18, 2012 alleging that Employer violated the Act and its rules
and regulations.   Answers were filed to the Petitions and the Petitions were
consolidated and assigned to the same WCJ for hearings and disposition.


II.   Proceedings Before the WCJ
      In support of its Modification/Suspension Petition, Employer submitted the
expert medical deposition testimony of Paul Hornstein, M.D. Claimant testified on
her own behalf before the WCJ in support of both her Review and Penalty
Petitions and submitted the deposition testimony of her treating podiatrist, Steven
F. Boc, D.P.M., in support of her Review Petition.


      Dr. Hornstein, a board certified orthopedic surgeon with a specialty in foot
and ankle surgery, performed an independent medical examination of Claimant on
behalf of Employer and testified as follows. He saw Claimant three times: once on
August 6, 2008; once on May 19, 2010; and a final time on September 7, 2011. On
Claimant’s first visit, Dr. Hornstein took Claimant’s medical history and reviewed
her medical records.     Dr. Hornstein discovered that Claimant had multiple
surgeries subsequent to her November 7, 1991 injury that resulted in a partial
amputation of Claimant’s big toe on her left foot and a mid-foot and ankle fusion.
Dr. Hornstein also discovered that a few months prior to Claimant’s November 7,
1991 injury, Claimant underwent a left foot bunionectomy surgery on July 10,


                                        4
1991.     Claimant told Dr. Hornstein that she had fully recovered from the
bunionectomy prior to the November 7, 1991 work incident. A CAT scan taken on
December 24, 1991, showed a “defect in the top or the dorsal part at the first
metatarsal bone, which would be where the [Claimant]’s bunion surgery was
performed.” (Hornstein’s Dep. at 15, Employer’s Hr’g Ex. D-1.)


        Dr. Hornstein opined that:

        [Claimant] had multiple surgeries, severe hypersensitivity, with
        respect to the first toe of her left foot, it’s basically not functional at
        this time. She’s had multiple surgeries and significant pain all about
        her ankle, the middle part of her foot, her hindfoot, and that has
        rendered her first toe which was fused, now nonfunctional . . . . She
        also had a partial amputation of the distal tip of her toe, which
        obviously, that part of her toe, she can’t use because it’s no longer
        present. And so … she lost the use of her first great toe of the left
        foot.

(Hornstein’s Dep. at 33-34.) Dr. Hornstein acknowledged that Claimant’s records
reveal a diagnosis of avascular necrosis, but Dr. Hornstein opined that, if Claimant
has avascular necrosis, it was not related to the November 7, 1991 injury as the
trauma was not severe enough to cause the condition. Dr. Hornstein also noted
that Claimant’s records reveal a diagnosis of complex regional pain syndrome
(CRPS). In Dr. Hornstein’s opinion, Claimant’s CRPS diagnosis is not connected
to Claimant’s left foot big toe injury because Claimant was not diagnosed with
CRPS until 2006. In Dr. Hornstein’s opinion, the CRPS related to Claimant’s
work injury to her left big toe would have developed three to six months after the
injury, not fifteen years later.




                                            5
      Claimant testified in support of her Review Petition at a January 10, 2013
hearing before the WCJ as follows. Claimant was injured when, while working as
a food service worker for Employer, she walked out of a freezer holding a tray of
food and her left foot struck a raised electrical outlet. Claimant immediately
stopped working and has not returned to work since. In the summer before the
incident, Claimant had surgery to remove a bunion. Claimant’s bunion problem
had resolved at the time of the November 7, 1991 incident.


      Claimant has developed other symptoms in both feet and ankles in the years
since her work injury. In addition to the injury to her left foot and toe, Claimant
had surgery done to her right foot due to injuries resulting from her compensating
for her injured left foot. When asked to describe the condition of her left foot and
ankle Claimant responded:

      I’m not a medical – I’m not a podiatrist. So I can’t go into specifics.
      But the only thing I can basically do is what I personally have gone
      through physically and what I have lost physically due to the loss of
      multiple surgeries, due to the los[s] of my limb, due to the loss of the
      ankle, due to the loss of the arch of my foot. It’s a challenge.

(Hr’g Tr. at 16, January 10, 2013.) Claimant testified that she is in constant pain,
walks with a limp, and cannot wear regular shoes. The pain is to her whole left
foot and to her left big toe. Although she has used medical devices to help her
walk through the years, no treatment or device has enabled her to walk the way she
did prior to her injury.


      In support of her Penalty Petition, Claimant submitted documentary
evidence and testified to the compensation she received through the years.

                                         6
Relevant to the instant appeal, Claimant submitted a paystub dated July 6, 2001
showing that Claimant received net bi-weekly compensation of $237.44.4
(Claimant’s Hr’g Ex. C-3.) Claimant also submitted a payout screen produced by
Employer and sent to Claimant. (Claimant’s Hr’g Ex. C-5.) The payout screen
shows that Claimant received bi-weekly net compensation of $232.51 from
October 2003 to February 2005.5 (Claimant’s Hr’g Ex. C-5.) Claimant testified
that she began receiving this lower amount of $232.51 on September 9, 2003,
which was after this Court reversed a Board’s decision granting an earlier
termination petition and reinstated benefits. Claimant continues to receive bi-
weekly net compensation of $232.51.


       Dr. Boc, a board certified podiatrist with a specialty in foot and ankle
surgery, testified on behalf of Claimant as follows. Claimant has been in his care
for twenty-two years. Dr. Boc performed a bunionectomy to Claimant’s left foot
prior to Claimant’s work injury and she was released to full duty without
restriction after a short recovery period. Dr. Boc met with Claimant on November
14, 1991 after her work injury. Claimant was exhibiting serious pain, swelling,
decreased range of motion, and muscle guarding. Dr. Boc diagnosed her at the
time with a trauma injury and treated her with casting below the knee, crutches,
anti-inflammatories, and pain medication.          Dr. Boc compared an x-ray taken
shortly after the November 7, 1991 incident and the x-rays taken after her


       4
          The exhibit shows that Claimant was paid gross compensation of $296.80 minus $59.36
for attorney fees. (Claimant’s Hr’g Ex. C-3.)

       5
         This exhibit shows that Claimant was paid gross compensation of $290.64 minus
$58.13 for attorney fees. (Claimant’s Hr’g Ex. C-5.)

                                             7
bunionectomy, and was concerned that Claimant had a possible osteochondral
fracture or avascular necrosis. Dr. Boc’s concern was confirmed on January 24,
1992 when he observed an avascular necrosis during a surgical procedure. Dr. Boc
conducted other surgeries on Claimant’s left lower extremities in order to reduce
her pain.    Due to Claimant’s compensating for her injuries by putting excess
weight on her right foot, Claimant underwent a surgical procedure on her right foot
in 1999. Claimant’s problems with her right foot have since been resolved.


      Dr. Boc opined that Claimant has “lost the function of her great toe, as well
as the first [metatarsophalangeal joint]. She has a stiff antalgic gait. And she has
symptoms of chronic pain syndrome.” (Boc’s Dep. at 38, Claimant’s Hr’g Ex. C-
8.) He further opined, with a reasonable degree of medical certainty, that all his
treatments on Claimant were directly related to the pathology problems caused by
her work injury.


      On cross examination Dr. Boc testified that, for all intents and purposes,
Claimant has lost the use of her left big toe. Dr. Boc also opined, “[w]ithin a
reasonable degree of medical certainty, [that] she has lost the use and function of
her left foot.” (Boc’s Dep. at 57.) On redirect, Dr. Boc reiterated his position and
stated that “[Claimant] has severe limitation. There is no function left to her left
foot and ankle.” (Boc’s Dep. at 58.) In Dr. Boc’s opinion, Claimant’s prognosis is
poor and her problems with her left toe and ankle are essentially irrevocable.


      Upon review of the testimonies the WCJ found Claimant credible, except
with regard to her testimony that her injury included her right foot in addition to


                                         8
her left. The WCJ also found Claimant’s medical expert, Dr. Boc, credible in all
ways other than with regard to Claimant’s right foot condition. To the extent that
Dr. Hornstein’s testimony conflicted with Dr. Boc’s testimony, the WCJ found Dr.
Boc more credible due to his long term relationship with Claimant, extensive
examinations, and the fact that Dr. Boc performed numerous surgical procedures
on Claimant.


      With regard to Employer’s Modification/Suspension Petition, the WCJ made
the following relevant findings and determinations.

      14. . . . In the present case, this Judge finds that the Claimant
      permanently lost the use of her left foot for all practical intents and
      purposes as of February 5, 2013 primarily based upon the credible
      testimony of Dr. Boc. Of particular significance in making this
      determination was the following exchange from the deposition of Dr.
      Boc:

            Q. What about the rest of her left foot and ankle? Do you
            have an opinion, within a reasonable degree of medical
            certainty, as to whether Ms. Price has also lost the use of
            her left foot?

            A. Yes. Within a reasonable degree of medical certainty,
            she has lost the use and function of her left foot. See
            Deposition of Dr. Boc at 57.

      Dr. Boc further described the condition of the Claimant’s left foot as
      follows: “She has severe limitation. There is no function left to her
      foot [left] and ankle.” Id. at 58. Emphasis added. Further, this Judge
      finds that the specific loss to the Claimant’s left foot is not separate
      and distinct from the original injury to her big toe on the left foot. In
      making this specific loss determination, this Judge also considered the
      credible testimony of the Claimant, portions of the testimony of Dr.
      Hornstein and the complete medical record.                Of particular
      significance, the Claimant herself seemed to agree to the specific loss
      of her left foot when she testified as follows:
                                         9
              I’m not a medical - I’m not a podiatrist. So I can’t go
              into specifics. But the only thing I can basically do is
              what I personally have gone through physically and what
              I have lost physically due to the loss of multiple
              surgeries, due to the los[s] of my limb, due to the loss of
              the ankle, due to the loss of the arch of my foot. It’s a
              challenge. Id. at 16. Emphasis added.

      Accordingly, the Claimant is awarded 250 weeks of benefits for the
      specific loss of the left foot. See Section 306(c)(4) of the Act[, 77 P.S.
      § 513(4)]. Additionally, the Claimant is awarded a healing period of
      25 weeks due to the specific loss of her left foot. See Section
      306(c)(25) [of the Act, 77 P.S. § 513(25)]. Since the Claimant has
      already received in excess of 275 weeks of disability benefits relative
      to the 1991 work injury, no further indemnity benefits are due and
      payable.
(WCJ Decision, Findings of Fact (FOF) ¶ 14) (emphasis in original).)


      The WCJ found, with regard to Claimant’s Review Petition:

      16. . . . In the present case, the Claimant’s work injury of November 7,
      1991 is described in the NCP as “left foot big toe.” Based upon the
      credible medical opinions of Dr. Boc as discussed above, this Judge
      finds that the description of the work injury should be enlarged to
      include “avascular necrosis and chronic regional pain syndrome of the
      left foot.” In making this determination, this Judge considered the
      mechanism of injury, the credible medical records, the imaging
      studies, the operative reports and the credible testimony of Dr. Boc
      and the Claimant. However, this Judge specifically rejects any
      suggestion that the Claimant’s work injury includes an injury or
      disorder to the right foot as explained above.
(FOF ¶ 16.)


      Finally, the WCJ made the following findings and determinations with
regard to Claimant’s Penalty Petition:


                                          10
      17. . . . [T]his Judge finds no violation of the Act regarding the
      Employer’s payment of indemnity benefits to the Claimant. While it
      is true that the Employer unilaterally reduced the amount of the
      Claimant’s indemnity benefits in 2003 from a biweekly amount of
      $237.44 to $232.51, this Judge finds that . . . the “reduced” indemnity
      amount is consistent with the amended NCP issued on February 5,
      1993 (which reflects a weekly compensation rate of $145.33). An
      Employer is permitted to unilaterally issue a NCP. Rather than
      committing a violation of the Act, it appears that the Employer
      actually may have overpaid the Claimant indemnity benefits based
      upon the original 1992 NCP until 2003, when it modified benefits to
      the amended rate. In finding no penalty, this Judge also considered
      that the Claimant failed to demonstrate that the weekly compensation
      rate stated on the amended NCP is materially incorrect nor did the
      Claimant file a petition seeking to review her wages.

      18. Regarding the alleged failure to pay medical bills, this Judge finds
      that the Claimant properly submitted the required medical reports,
      bills and Health Insurance Claim Form for Dr. Boc’s surgery on June
      17, 2011 at Hahnemann University Hospital based upon the credible
      testimony of Dr. Boc and the attachments to his deposition. This
      Judge finds that the surgery was causally related to the Claimant’s
      accepted left foot injury. Thus, the Employer’s failure to pay for this
      procedure constitutes a violation of the Act. This Judge orders the
      Employer to pay for the costs of the June 17, 2011 surgery and awards
      a penalty of ten percent (10%) for the unpaid and due balance with
      statutory interest.

      ...

      22. Based upon the totality of all of the evidence presented, I find that
      the employer established that it continuously engaged in a reasonable
      contest of the case within the meaning of Section 440 of the Workers’
      Compensation Act, 77 P.S. [§] 996(a). Additionally, I further find
      that the employer’s contest was prompted to resolve a genuinely
      disputed issue and not to merely harass the claimant. See City of
      Philadelphia v. [Workers’ Compensation Appeal Board] (Cospelich),
      893 A.2d 171 (Pa. Cmwlth. 2006), appeal denied, [] 923 A.2d 411
      ([Pa.] 2007).

(FOF ¶¶ 17, 18, 22.)


                                         11
       Accordingly, the WCJ granted Employer’s Modification/Suspension
Petition, granted Claimant’s Review Petition and granted, in part, Claimant’s
Penalty Petition.      Claimant appealed the WCJ’s Decision with regard to the
determinations on Employer’s Modification/Suspension Petition and Claimant’s
Penalty Petition to the Board, which affirmed. Claimant subsequently filed the
instant Petition for Review with this Court.6


III.   Claimant’s Appeal
   A. Due Process
       On appeal to this Court, Claimant first argues that the WCJ violated her due
process rights by determining that Claimant’s injuries resolved into a specific loss
of her left foot when Employer only provided notice of a claim of specific loss of
her big toe on her left foot.         Claimant argues that Employer only presented
evidence supporting a finding that Claimant’s injury to her left big toe resolved
into a specific loss and that Employer only asserted its argument with regard to the
entire left foot in its brief to the WCJ after the record was closed. Claimant
contends that if Employer wanted to assert that Claimant lost the use of her entire
left foot, it should have amended its Modification/Suspension Petition accordingly.
Claimant argues that, because Employer only asserted its argument regarding her
entire left foot after the record was closed, Claimant was subjected to unfair


       6
         “Our scope of review in a workers’ compensation appeal is limited to determining
whether necessary finding of fact are supported by substantial evidence, whether an error of law
was committed, or whether constitutional rights were violated.” Elberson v. Workers’
Compensation Appeal Board (Elwyn, Inc.), 936 A.2d 1195, 1198 n.2 (Pa. Cmwlth. 2007).




                                              12
surprise in violation of her due process rights and the record should be re-opened
so that she may present evidence rebutting Employer’s assertion.


      Upon review, we discern no due process violation in the WCJ’s finding of
specific   loss    to   Claimant’s   entire     left   foot.    Employer     filed   a
Modification/Suspension Petition alleging that her injury had resolved into a
specific loss.    Claimant was, therefore, on notice that Employer requested a
suspension of benefits for a specific loss of her injured big toe on her left foot.
Claimant filed a Review Petition seeking to amend the description of her injury to
include her entire left foot, testified in support thereof, and presented the testimony
of her medical expert, Dr. Boc.        Her medical expert credibly opined, when
questioned by Employer, that Claimant lost all use of her left foot. Thus, during
the litigation, Claimant’s Review Petition, medical evidence, and testimony created
the legal and factual predicate to support the amendment of her injury to include
her left foot. At the same time, the WCJ found that the credible evidence presented
by Claimant also demonstrated that her injury had resolved into a specific loss and
that she had lost the use of her left foot. Like the Board, we “see no error in this
finding or any reason to remand the case to allow Claimant to present evidence
which was available at the time of the original litigation on these Petitions.”
(Board Op. at 6.) Moreover, “strictness of pleadings in not required in workers’
compensation cases, and in the interest of judicial economy, the WCJ was
empowered to take appropriate action based on the evidence presented.”
Krushauskas v. Workers’ Compensation Appeal Board (General Motors), 56 A.3d
64 (Pa. Cmwlth. 2012) (affirming a WCJ’s suspension of benefits where the
employer did not file a suspension petition).


                                          13
      Based on the foregoing, we conclude that Claimant had notice of
Employer’s request for a suspension of benefits based on a specific loss of her left
big toe, and the medical and factual evidence which she presented, which
ultimately supported a suspension based on the specific loss of her left foot. The
WCJ acted within his discretion to conclude that Claimant’s injuries have resolved
into a specific loss of her entire left foot. Accordingly, there was no due process
violation and we decline Claimant’s request to re-open the record on this matter.


   B. Substantial Evidence
      Claimant next contends that the WCJ erred by dismissing undisputed
medical evidence supporting a conclusion that Claimant’s injuries to her left foot
were separate and apart from her left big toe injury. Claimant contends that Dr.
Hornstein did not address Claimant’s other injuries and Dr. Boc’s testimony
supports a finding that Claimant is suffering from a disability separate and distinct
from her left big toe injury.


      When an employer asserts that a claimant’s total disability has resolved into
a specific loss of a body part, the employer bears the burden to “show that the
claimant now suffers only the specific loss and that the injury does not extend
beyond that loss.” Reading Anthracite Company v. Workmen’s Compensation
Appeal Board (Earley), 549 A.2d 616, 617 (Pa. Cmwlth. 1988). We reviewed the
standards applicable to specific loss in Jacobi v. Workers’ Compensation Appeal
Board (Wawa, Inc.), 942 A.2d 263, 267-68 (Pa. Cmwlth. 2008), where we stated:

      A specific loss requires more than just limitations upon an injured
      worker’s occupational activities; a loss of use for all practical intents
      and purposes requires a more crippling injury than one that results in a
                                         14
      loss of use for occupational purposes. However, it is not necessary
      that the injured body part be one hundred percent useless in order for
      the loss of use to qualify as being for all practical intents and
      purposes. Whether a claimant has lost the use of a body part, and the
      extent of that loss of use, is a question of fact for the WCJ. Whether
      the loss is for all practical intents and purposes is a question of law.

Id. (internal citations omitted).


      If a claimant suffers multiple work-related injuries, the Act allows for a
claimant to receive compensation for a disability that is separate and distinct from
the injury that resolved into a specific loss of a body part. Community Service
Group v. Workers’ Compensation Appeal Board (Peiffer), 976 A.2d 594, 596 (Pa.
Cmwlth. 2009). We have held that a claimant does not suffer a separate and
distinct injury when a claimant suffers from multiple injuries that were the result of
surgical procedures to treat the primary injury. See id. at 596-97 (holding that
claimant’s injury to her neck is not a separate injury to her cervical injury because
her neck injury was the direct result of a cervical surgery). However, we have also
held that a painful neuroma, such as the one exhibited by Claimant here, may,
when the evidence supports such a conclusion, be separate and distinct from the
permanent injury for which a claimant receives specific loss benefits. See Truck
Lubricating & Washing Company v. Workmen’s Compensation Appeal Board
(Durr), 421 A.2d 1251, 1254 (Pa. Cmwlth. 1980) (holding that because medical
testimony showed that the claimant’s neuroma does not normally follow the
claimant’s specific injury, the claimant is entitled to disability benefits
notwithstanding the compensability of the specific loss to the claimant’s hand).
Our cases establish that the key issue a party seeking recognition for a separate and
distinct disability must establish is that such injury does not normally flow from

                                         15
the specific loss injury.      School District of Philadelphia v. Workmen’s
Compensation Appeal Board (Pittman), 603 A.2d 266, 271 (Pa. Cmwlth. 1992).


      Here, the WCJ expanded the description of Claimant’s November 7, 1991
injury to include “avascular necrosis and chronic regional pain syndrome of the left
foot.” (FOF ¶ 16.) The WCJ found that the added injuries to her left foot were not
separate and distinct from her injury to her left big toe, and that all her injuries
resolved into a specific loss of her left foot. (FOF ¶ 14.) This finding is supported
by the following exchange that occurred between Dr. Boc and Claimant’s counsel:

      Q: . . . [T]he conditions that you have diagnosed that are part of her
      injury complex relating to November 7, 1991, Doctor, are any of the
      conditions that you are treating her for currently and have diagnosed
      considered in your opinion permanent?
      A: Yes.
      Q: What conditions would you consider permanent?
      A: The permanency is related to the loss of function of the great toe,
      the amputation of the toe, the multiple fusion sites and loss of arch,
      and locomotion to her foot, i.e. the gait abnormalities that she
      experiences, the chronic pain syndrome, and the nerve pathology that
      she experiences.
      Q: Are there any conditions that you have been treating her for that
      you discussed today that are not related to the work injury of
      November 7, 1991?
      A: No.
      Q: Have all the opinions you offered today been within a reasonable
      degree of medical and or podiatric certainty.
      A: Yes. All the opinions I have rendered have been within a
      reasonable degree of podiatric certainty.




                                         16
(Boc’s Dep. at 45-46.) The above testimony represents substantial evidence in
support of the WCJ’s finding.7 Accordingly, the WCJ did not err by determining
that Claimant suffered a specific loss of her entire left foot and that her injuries to
her foot are not separate and apart from her injuries to her left big toe.


   C. Credit for Past Compensation
       Claimant next contends that, even if the WCJ was correct that Claimant’s
injuries have resolved into a specific loss of her entire left foot, the WCJ erred by
granting Employer credit for the specific loss of her left foot from the date of the
left big toe injury instead of from the date the WCJ found that Claimant lost the
use of her left foot.


       Section 306(c) of the Act provides for the exclusive means of compensation
for the specific loss of a particular body part. 77 P.S. § 513 (setting forth the
schedule of compensation for all disability resulting from a specific loss). It is well
settled that an employee who sustains a specific loss is “not entitled to additional
compensation beyond that provided by Section 306(c)” of the Act. Allegheny
Ludlum Steel Corporation v. Workers’ Compensation Appeal Board (Malobicky),
753 A.2d 330, 335 (Pa. Cmwlth. 2000). Past disability payments related to the
specific loss of the body part are credited to the employer’s obligations under
Section 306(c). Id.

       7
           “Substantial evidence is relevant evidence that a reasonable person might accept as
adequate to support a conclusion.” Pocono Mountain School District v. Workers’ Compensation
Appeal Board (Easterling), 113 A.3d 909, 918 (Pa. Cmwlth. 2015) (internal quotations omitted).
It is irrelevant whether the evidence in the record could support contrary findings than those
made by the WCJ if there is evidence to support the findings that were actually made. Id.



                                             17
      Section 306(c)(4) provides compensation for a specific loss of a foot at a rate
of “sixty-six and two-thirds per centum of wages” for 250 weeks. 77 P.S. §
513(4). Section 306(c)(25) provides claimants suffering a specific loss of a foot
with an additional 25 weeks of compensation for a healing period. 77 P.S. §
513(25). Here, the WCJ awarded Claimant 275 weeks of disability benefits – 250
weeks pursuant to Section 306(c)(4), plus 25 weeks pursuant to Section 306(c)(25).
Because Claimant received benefits from November 8, 1991 through October 21,
2013, no additional compensation was due under the Act and we see no error in the
WCJ’s award in this regard.


   D. Penalty Petition
      Claimant next argues that the WCJ erred by denying the portion of her
Penalty Petition alleging that Employer violated the Act by unilaterally reducing
her compensation rate. According to Claimant, Employer’s violations of the Act
have a long history. After Employer filed its Amended NCP, it began paying her
$3.10 less per week than what was due. According to Claimant, an initial round of
litigation in 1995-96 led to Employer and Claimant reaching an agreement
addressing past arrearages and the compensation rate was corrected moving
forward.8 However, after a second round of litigation in 2001-2003, which led to
Claimant’s benefits being terminated by a WCJ and subsequently reinstated by this
Court, Employer reduced the benefits once again to the level in the Amended NCP
instead of the original NCP. Claimant asserts that Employer has been in violation



      8
          The alleged agreement does not appear in the certified record.



                                                18
of the Act since 2003 and that the WCJ erred by not ordering Employer to reinstate
her correct compensation rate.


      Upon review of the evidence presented, however, the WCJ found that there
was no violation of the Act because, although Employer unilaterally reduced the
amount of benefits in 2003, “the ‘reduced’ indemnity amount is consistent with the
[A]mended NCP issued on February 5, 1993.” (FOF ¶ 17.) Based on the evidence
before it, the WCJ believed that the Amended NCP was correct and that Employer
“may have overpaid the Claimant indemnity benefits based upon the original 1992
NCP until 2003, when it modified benefits to the amended rate.” (FOF ¶ 17.) The
WCJ specifically found that “Claimant failed to demonstrate that the weekly
compensation rate stated on the [A]mended NCP is materially incorrect” and that
Claimant did not “file a petition seeking to review her wages.” (FOF ¶ 17.)
Employer argues that the WCJ correctly found that Claimant did not meet her
burden of showing that the Amended NCP is incorrect.


      We agree with the WCJ that Claimant has not demonstrated that the
compensation rate on the Amended NCP is materially incorrect. While Claimant
has produced pay stubs which show that there was a reduction in the amount of
indemnity benefits she received, the amount paid is not inconsistent with the
Amended NCP. Although Claimant argues that the Amended NCP, issued in
1993, is incorrect, there is no evidence to support that argument. We note that
Claimant had previously presented the same payroll records in Sims as she does
here, which listed her pay period ending July 1, 2001 and her gross compensation
as $296.80, and a second pay record covering the pay period ending August 5,


                                       19
2005, listing her gross compensation as $290.64. Sims, 928 A.2d at 365. At that
time, she argued that Employer was paying her $6.16 less than what she was
entitled. Id. Unlike in that case, Claimant did testify here and clarified some of the
ambiguity that had apparently plagued the earlier determination. Nonetheless, the
WCJ in that case, as did the WCJ here, found that Claimant provided insufficient
evidence to meet her burden of proving why the amount she was being paid was
incorrect. Id. at 365-66.


      While penalties may be imposed pursuant to Section 413(b) of the Act,9
“[w]here a claimant files a petition seeking an award of penalties, the claimant
bears the burden of proving a violation of the Act occurred.” Schenck v. Workers’
Compensation Appeal Board (Ford Electronics), 937 A.2d 1156, 1160 (Pa.
Cmwlth. 2007). If a claimant sustains his or her burden, it is then “within the
discretion of the WCJ to impose penalties.” Jordan v. Workers’ Compensation


      9
        Added by Section 3 of the Act of February 8, 1972, P.L. 25, as amended, 77 P.S. §
774.1. Section 774.1 provides:

      Any insurer who suspends, terminates or decreases payments of compensation
      without submitting an agreement or supplemental agreement therefor as provided
      in section 408, or a final receipt as provided in section 434, or without filing a
      petition and either alleging that the employe has returned to work at his prior or
      increased earnings or where the petition alleges that the employe has fully
      recovered and is accompanied by an affidavit of a physician on a form prescribed
      by the department to that effect which is based upon an examination made within
      twenty-one days of the filing of the petition or having requested and been granted
      a supersedeas as provided in this section, shall be subject to penalty as provided in
      section 435.

Id.



                                              20
Appeal Board (Philadelphia Newspapers, Inc.), 921 A.2d 27, 41 (Pa. Cmwlth.
2007).


      Upon review, we conclude that the Board and WCJ did not err in finding
that Claimant did not sustain her burden of showing that Employer violated the
Act. Although it appears that there was a “reduction” in the amount of indemnity
benefits, the WCJ found that the amount being paid by Employer was consistent
with the Amended NCP. Claimant did not meet her burden of showing that the
Amended NCP was incorrect, or that Claimant was entitled to an amount greater
than the Amended NCP. Further, even if the reduction was a technical violation of
the Act, the WCJ here made a determination as to why no penalty was warranted
and this was not an abuse of discretion under these circumstances. See Best v.
Workmen’s Compensation Appeal Board (Nursefinders of Allentown), 668 A.2d
279, 282 (Pa. Cmwlth. 1995) (stating that “when the record indicates that an
employer has violated the Act by unilaterally reducing benefits, the imposition of a
penalty is left to the discretion of the WCJ”).


   E. Unreasonable Contest
      As a final matter, Claimant argues that the Board erred in holding that
Employer’s contest to Claimant’s Penalty Petition was reasonable and that
Claimant is entitled to unreasonable contest fees. Under Section 440(a) of the
Act,10 claimants who successfully litigate a contested case are entitled to an award


      10
         Added by Section 3 of the Act of February 8, 1972, P.L. 25, as amended, 77 P.S. §
996(a). Section 440(a) provides:

                                                                          (Continued…)
                                           21
of reasonable attorney’s fees unless an employer can establish a reasonable basis
for the contest. The employer “has the burden of presenting sufficient evidence to
establish a reasonable basis for the contest.” Varkey v. Workers’ Compensation
Appeal Board (Cardone Industries & Fireman Fund), 827 A.2d 1267, 1275 (Pa.
Cmwlth. 2003). Whether an employer’s contest is reasonable is a question of law
subject to our plenary review. Id.


      Because we conclude above that Claimant has not sustained her burden of
showing that Employer has violated the Act, we also affirm the Board’s
determination that Employer presented a reasonable contest to Claimant’s Penalty
Petition.


IV.   Conclusion
      Accordingly, for the foregoing reasons, the Board’s Order is affirmed.


                                               ________________________________
                                               RENÉE COHN JUBELIRER, Judge


      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 or his dependent, as the
      case may be, 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 fees, 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.

Id.

                                              22
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Donna Marie Price,                   :
                                     :
                          Petitioner :
                                     :
            v.                       :   No. 374 C.D. 2015
                                     :
Workers’ Compensation Appeal Board :
(School District of Philadelphia),   :
                                     :
                          Respondent :



                                 ORDER



     NOW, January 8, 2016, the Order of the Workers’ Compensation Appeal
Board, entered in the above-captioned matter, is AFFIRMED.




                                      ________________________________
                                      RENÉE COHN JUBELIRER, Judge
