           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Anthony Nahas,                                   :
                                                 :
                        Petitioner               :
                                                 :
                 v.                              :   No. 726 C.D. 2017
                                                 :   Submitted: May 4, 2018
Workers’ Compensation Appeal                     :
Board (Synergistic Partners, Inc.),              :
                                                 :
                        Respondent               :


BEFORE:          HONORABLE MARY HANNAH LEAVITT, President Judge
                 HONORABLE ROBERT SIMPSON, Judge
                 HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                                  FILED: July 26, 2018

                 Anthony Nahas (Claimant) petitions for review of an order of the
Workers’ Compensation Appeal Board (Board) that affirmed a decision of a
Workers’ Compensation Judge (WCJ) suspending Claimant’s disability benefits
under the Workers’ Compensation Act (the Act).1 We affirm.
                 On December 13, 2010, Claimant sustained an injury to his right knee,
ankle, and foot in his work for Synergistic Partners, Inc. (Employer) as a warehouse
receiver and painter. (2013 WCJ Decision Findings of Fact (F.F.) ¶¶1-3, 19,
Reproduced Record (R.R.) at 10a-11a, 17a.)                  Employer issued a Notice of
Compensation Payable recognizing this work injury as knee and foot sprains. (Id.


1
    Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
F.F. ¶2, R.R. at 10a.) Claimant returned to lighter duty work, but suffered an
aggravation of this work injury on June 9, 2011 when he caught a heavy falling pipe
at work. (Id.) Following the June 9, 2011 work accident, Claimant left work and
has not returned to work in any capacity. (Id. Conclusion of Law (C.L.) ¶4, R.R. at
21a; 2016 WCJ Decision F.F. ¶3.)
             In 2011, Employer filed a termination petition asserting that Claimant
had recovered from his work injury and a suspension petition based on Claimant’s
refusal of work within his medical restrictions, and Claimant filed a penalty petition
based on Employer’s failure to pay him total disability benefits. On May 16, 2013,
a WCJ issued a decision granting Claimant’s penalty petition and denying
Employer’s termination and suspension petitions. With respect to the suspension
petition, this WCJ found that the sedentary job that Employer had offered was at its
office in Lawrence, Pennsylvania, 40 miles from Monessen, Pennsylvania, where
Claimant lives and where the plant at which he had previously worked is located.
(2013 WCJ Decision F.F. ¶¶11, 16, 22, R.R. at 13a, 16a, 18a-19a.) The WCJ held
that Employer did not meet its burden of proving that it had offered work to Claimant
within his restrictions because of the distance that Claimant would have to travel to
the job and because Claimant’s ability to drive was restricted. (Id. F.F. ¶ 22, C.L.
¶3, R.R. at 18a-19a, 20a-21a.)
             On March 5, 2014, Employer filed the suspension petition at issue here
alleging that Claimant had refused work within his medical restrictions. Employer
also filed two termination petitions asserting that Claimant had recovered from his
work injury, and in 2013 filed a suspension petition asserting that Claimant had
failed to attend physical therapy. Claimant filed a review petition on July 30, 2014
seeking to expand the description of his work injury to include complex regional


                                          2
pain syndrome type 2 and also filed a petition for review of a utilization review
determination that physical therapy provided to Claimant after January 24, 2014 was
not reasonable or necessary. The six petitions were heard together and eight
evidentiary hearings were held before a WCJ.                  Claimant, Employer’s human
resources coordinator, and a claims representative for Employer’s workers’
compensation insurer testified at these evidentiary hearings. In addition, the WCJ
visited Employer’s Lawrence office, accompanied by counsel for both parties, and
observed the work involved in the position on which Employer’s suspension petition
was based.2 Trial depositions of Claimant’s treating physicians, Drs. Hasselman,
Cortazzo, and Papas, and two physicians who examined Claimant on behalf of
Employer, Drs. Kann and Cosgrove, were also admitted in evidence.
               The job offered by Employer to Claimant on which the suspension
petition was based was a sedentary position as a mail/file clerk. (2016 WCJ Decision
F.F. ¶25; Employer Ex. B, R.R. at 40a-43a.) The position was at the same weekly
wages as Claimant was earning at the time of his December 2010 injury. (2/9/15
Hearing Transcript (H.T.) at 19, R.R. at 854a.) At the time that Employer filed its
suspension petition and throughout most of the WCJ hearings, this position was
located only at Employer’s Lawrence office. (2/10/14 H.T. at 15-19, R.R. at 325a-
329a; 2/9/15 H.T. at 20-22, R.R. at 855a-857a.) At the May 5, 2015 WCJ hearing,
Employer’s human resources coordinator testified that the same mail/file clerk
position at the same weekly pay was available to Claimant at the Monessen facility

2
  The petitions were originally assigned to the same WCJ who issued the 2013 decision and four
of the hearings in 2013 and 2014 were held before him. That WCJ, however, passed away during
the course of these proceedings, and the petitions were reassigned, with the consent of the parties,
to a second WCJ who had conducted one of the first five hearings for the first WCJ in 2014 prior
to his death. The final three evidentiary hearings in 2015 were held before the second WCJ, who
issued the decision on the petitions, and the second WCJ visited Employer’s office to observe the
job at issue in the suspension petition.
                                                 3
and that Employer was offering this position at Employer’s Monessen facility to
Claimant. (5/6/15 H.T. at 11-17, R.R. at 933a-939a.) Employer’s human resources
coordinator also testified that the Monessen facility is on a public bus line and that
Employer would be willing to pick Claimant up from the nearest bus stop. (Id. at
20-21, R.R. at 942a-943a.) A video of the area of the Monessen facility where
Claimant would work was introduced in evidence, and Employer subsequently
confirmed the Monessen sedentary mail/file clerk job offer to Claimant and its terms
in writing. (Id. at 8-9, R.R. at 930a-931a; 6/29/15 H.T. at 8-11, R.R. at 991a-994a;
Employer Ex. O, R.R. at 61a-62a.)          In addition, Employer’s insurer’s claims
representative testified that the insurer would pay for the cost of modifying a vehicle
owned by Claimant so that it could be operated by hand controls. (12/16/14 H.T. at
16-17, 23, R.R. at 758a-759a, 765a.)
             Claimant testified that he has severe pain in his right foot and cannot
put weight on that foot or pressure on the bottom of that foot. (2/10/14 H.T. at 23-
25, 31, 33, 44-49, R.R. at 333a-335a, 341a, 343a, 354a-359a.)        Claimant testified
that he has a valid driver’s license and owns five cars and trucks, but that he is unable
to drive because he cannot press with his right foot on the accelerator or brake.
(2/10/14 H.T. at 24-25, 32, 41, 46, 53, R.R. at 334a-335a, 342a, 351a, 356a, 363a;
7/14/14 H.T. at 28, R.R. at 470a; 10/6/14 H.T. at 7, 10, R.R. at 665a, 668a; 5/6/15
H.T. at 26, 46-47, R.R. at 948a, 968a-969a.) At the February 10, 2014 WCJ hearing,
Claimant testified that he could not return to work because of his inability to drive
and the distant location of Employer’s Lawrence office and admitted that he could
sit without severe pain and might be able to work at the sedentary mail/file clerk job
that Employer had offered with some accommodations if it were not for the
transportation and distance problems. (2/10/14 H.T. at 42-45, 48-49, R.R. at 352a-


                                           4
355a, 358a-359a.) At that time, Claimant testified that the Monessen facility was
only about a mile from his house and that he had no objection to the Monessen
location. (Id. at 43-44, R.R. at 353a-354a.) After Employer’s offer of the mail/file
clerk position at the Monessen facility, Claimant testified that he could not work
full-time and that he could not drive to the Monessen facility regularly because of
his pain even if one of his vehicles was fitted with hand controls. (6/29/15 H.T. at
14-16, 25-27, R.R. at 997a-999a, 1008a-1010a.) In addition, Claimant asserted after
the Monessen job offer that there were hills and stairs that he could not navigate on
crutches between his house and the bus stop and that two of the five vehicles that he
owns were not operational. (5/6/15 H.T. at 25-26, 44, R.R. at 947a-948a, 966a;
6/29/15 H.T. at 31, 37, R.R. at 1014a, 1020a.)
             Dr. Hasselman, an orthopedic surgeon who treated Claimant’s foot and
ankle, and Dr. Cortazzo, a pain medicine physician, opined that Claimant had not
recovered from his work injury, that he suffered from complex regional pain
syndrome type 2 as a result of the work injury, and that he was not capable of
returning to his time of injury job. (Claimant Ex. 6, 2014 Hasselman Dep. at 19-20,
R.R. at 496a-497a; Claimant Ex. 7, Cortazzo Dep. at 27-29, R.R. at 593a-595a.) Dr.
Papas, an orthopedic surgeon who treated Claimant’s knee, opined that he suffered
from chondrosis of the right knee as a result of the work injury, that Claimant had
not recovered from this injury, and that he was not capable of returning to his time
of injury job. (Claimant Ex. 11, 2014 Papas Dep. at 18-20, R.R. at 788a-790a.) Drs.
Hasselman, Cortazzo, and Papas, however, all testified that Claimant was able to do
full-time sedentary work. (Claimant Ex. 6, 2014 Hasselman Dep. at 20, 28, 31, 52,
R.R. at 497a, 505a, 508a, 529a; Claimant Ex. 7, Cortazzo Dep. at 29-30, 55, R.R. at
595a-596a, 621a; Claimant Ex. 11, 2014 Papas Dep. at 20, 34, R.R. at 790a, 804a.)


                                         5
Drs. Hasselman and Cortazzo testified that Claimant cannot drive because he cannot
safely use his right foot on the brake and accelerator, but that he could drive a vehicle
fitted with hand controls. (Claimant Ex. 6, 2014 Hasselman Dep. at 20, 28, 30-31,
49, R.R. at 497a, 505a, 507a-508a, 526a; Claimant Ex. 7, Cortazzo Dep. at 48-49,
R.R. at 614a-615a.) Dr. Papas testified that Claimant’s knee condition did not
restrict his ability to drive. (Claimant Ex. 11, 2014 Papas Dep. at 20-21, R.R. at
790a-791a.)
              Dr. Kann opined that Claimant had recovered from his work injury, that
he did not suffer from complex regional pain syndrome, and that he was capable of
returning to work full-time without restrictions. (Employer Ex. E, Kann Dep. at 14-
16, 20-22, R.R. at 380a-382a, 386a-388a.) Dr. Cosgrove testified that he found no
objective evidence of complex regional pain syndrome in his examination of
Claimant and opined that Claimant was capable of full-time sedentary work.
(Employer Ex. M, Cosgrove Dep. at 12-16, 26-27, R.R. at 879a-883a, 893a-894a.)
Both Drs. Kann and Cosgrove testified that Claimant was unrestricted in his ability
to drive. (Employer Ex. E, Kann Dep. at 14-15, 19, 30-32, R.R. at 380a-381a, 385a,
396a-398a; Employer Ex. M, Cosgrove Dep. at 19-21, R.R. at 886a-888a.)
              On January 8, 2016, the WCJ issued a decision granting Claimant’s
review and utilization review petitions, granting Employer’s petition to suspend
benefits for refusal of work, and denying Employer’s termination petitions and
petition to suspend benefits for failure to attend physical therapy. In this decision,
the WCJ found the testimony of Drs. Hasselman, Cortazzo, and Papas credible,
rejected the testimony of Dr. Kann that Claimant had fully recovered from his work
injury, and rejected the testimony of Drs. Kann and Cosgrove to the extent that they
opined that Claimant did not suffer from complex regional pain syndrome type 2.


                                           6
(2016 WCJ Decision F.F. ¶¶21, 23.) The WCJ, accordingly, held that the description
of Claimant’s work injury should be expanded to include complex regional pain
syndrome type 2 and ruled that Employer had not satisfied its burden with respect to
its termination petitions. (Id. C.L. ¶¶3, 6.) The WCJ also found the testimony of
Employer’s human resources coordinator and the claims representative credible and
rejected as not credible Claimant’s testimony that he could not work full-time at the
mail/file clerk job offered by Employer and could not travel to Employer’s
Monessen facility. (Id. F.F. ¶25, C.L. ¶2.) The WCJ concluded that the mail/file
clerk position offered by Employer at its Monessen facility was sedentary work
within the restrictions set by Claimant’s treating physicians, held that Employer had
satisfied its burden of proving that it made work available within Claimant’s physical
restrictions on May 6, 2015, and ordered suspension of Claimant’s disability benefits
as of that date. (Id. F.F. ¶25, C.L. ¶2 & Order.)3 Both Claimant and Employer
appealed, and on May 10, 2017, the Board affirmed the WCJ’s decision. Only
Claimant has appealed the Board’s decision to this Court and only the WCJ’s
granting of Employer’s suspension petition is at issue in this appeal.4
               Under Section 413(a) of the Act, a claimant’s disability benefits may
be suspended, even though he has not recovered from his work injury, where the
employer establishes that it has offered the claimant a specific available job within

3
  The WCJ also rejected the utilization reviewer’s opinion that Claimant’s physical therapy was
not reasonable or necessary, found that Claimant did not refuse to attend physical therapy and
ruled that Employer had therefore not satisfied its burden of proof with respect to the utilization
review petition or its suspension petition based on failure to attend physical therapy. (2016 WCJ
Decision F.F. ¶¶22, 24, C.L. ¶¶4-5.)
4
 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 constitutional rights
were violated. Royal v. Workers’ Compensation Appeal Board (Mayfield Foundry, Inc.), 722 A.2d
1145, 1147 n.2 (Pa. Cmwlth. 1999).

                                                7
his physical restrictions at no loss of pay and the claimant does not accept the job
offer. 77 P.S. § 772 (a WCJ “may, at any time, modify, reinstate, suspend, or
terminate” disability benefits “upon petition filed by either party with the
department, upon proof that the disability of an injured employe has increased,
decreased, recurred, or has temporarily or finally ceased”); Royal v. Workers’
Compensation Appeal Board (Mayfield Foundry, Inc.), 722 A.2d 1145, 1148 (Pa.
Cmwlth. 1999); IGA Food Mart v. Workmen’s Compensation Appeal Board
(Kugler), 674 A.2d 359, 363 (Pa. Cmwlth. 1996). “Disability is synonymous with
earning power; thus, where the employer shows that the claimant can earn pre-injury
wages, the claimant is no longer disabled in the legal sense, and benefits will be
suspended.” Royal, 722 A.2d at 1148. Here, the testimony of Employer’s human
resources coordinator established that Employer had offered Claimant a full-time
sedentary job at his pre-injury wages and work location, Claimant’s physicians
opined that Claimant was capable of full-time sedentary work, and the WCJ found
from his observation of the job that this position was within the physical restrictions
established by Claimant’s physicians.
             A position within the claimant’s physical limitations is not an available
job and cannot support the modification or suspension of benefits if there is no means
of transportation for the claimant to get to the workplace. PA Department of
Corrections/SCI-Greensburg v. Workers’ Compensation Appeal Board (Zvara), 948
A.2d 244, 247-48 (Pa. Cmwlth. 2008); South Hills Movers v. Workers’
Compensation Appeal Board (Porter), 829 A.2d 1263, 1266 (Pa. Cmwlth. 2003).
Employer demonstrated, however, and the WCJ found, that Claimant could
commute to the offered job. The job was at Employer’s Monessen facility, less than
two miles from Claimant’s home. Although two of Claimant’s treating physicians


                                          8
testified that Claimant’s right foot condition restricted his ability to drive, both of
those physicians testified that Claimant could drive a car that was fitted with hand
controls and insurer’s claims representative testified that Employer would pay for
modification of one of Claimant’s vehicles to hand controls.
              Claimant argues that the WCJ erred in finding Employer’s human
resources coordinator and the claims representative credible and in rejecting his
testimony that he could not work or drive a vehicle with hand controls to work
regularly because of his pain and that he could not travel safely by bus. These
arguments are without merit.
              Determination of the credibility of witnesses is a matter solely for the
WCJ, and neither the Board nor this Court may reweigh the WCJ’s credibility
determinations. Hawbaker v. Workers’ Compensation Appeal Board (Kriner’s
Quality Roofing Services and Uninsured Employer Guaranty Fund), 159 A.3d 61,
69 (Pa. Cmwlth. 2017); Furnari v. Workers’ Compensation Appeal Board (Temple
Inland), 90 A.3d 53, 59-60, 70 (Pa. Cmwlth. 2014); Elliott Turbomachinery
Company v. Workers’ Compensation Appeal Board (Sandy), 898 A.2d 640, 647 (Pa.
Cmwlth. 2006). The WCJ has exclusive province over questions of credibility and
evidentiary weight, and may accept or reject the testimony of any witness in whole
or in part, even if the witness’s testimony is uncontradicted. Hawbaker, 159 A.3d
at 69; Elliott Turbomachinery Company, 898 A.2d at 647; Capasso v. Workers’
Compensation Appeal Board (RACS Associates, Inc.), 851 A.2d 997, 1002 (Pa.
Cmwlth. 2004).      Unless made arbitrarily or capriciously, a WCJ’s credibility
determinations are not grounds for reversal on appeal. Furnari, 90 A.3d at 70.
              The WCJ’s credibility determinations here were neither arbitrary nor
capricious.    Because Employer’s human resources coordinator and Claimant


                                          9
testified in person before the WCJ, the WCJ had the opportunity to observe their
demeanor and could properly accept or reject their testimony on that basis alone. See
Daniels v. Workers’ Compensation Appeal Board (Tristate Transport), 828 A.2d
1043, 1052-53 (Pa. 2003). In addition, the WCJ explained that he found Claimant’s
testimony not credible because it changed during the course of the proceedings and
noted that Claimant’s claimed inability to return to work was contradicted by his
own treating physician Dr. Cortazzo, who testified that Claimant’s pain did not
prevent him from working full-time at a sedentary job. (2016 WCJ Decision F.F.
¶25; see Claimant Ex. 7, Cortazzo Dep. at 55, R.R. at 621a.)
             Nor is there any error in the WCJ’s finding that the claims
representative was credible.     The claim’s representative’s testimony that the
modification would be paid for was unequivocal and uncontradicted. (12/16/14 H.T.
at 23, R.R. at 765a.) Claimant did not testify that he ever sought to have one of his
vehicles modified to hand controls in the six months between the claims
representative’s testimony and the final evidentiary hearing, and no evidence was
introduced that Employer ever withdrew or limited this offer or indicated any
unwillingness to fully pay for hand-control modification.
             Claimant also contends that the WCJ could not find that Employer
offered available work on May 4, 2015 because the Monessen job offer was not fully
set forth in writing at that time and the offer to modify one of Claimant’s vehicles
with hand controls was not submitted to Claimant in a formal written document.
This argument likewise fails. A detailed written job description for the mail/file
clerk position was provided by Employer before May 2015 from which a
determination could be made that the job duties were consistent with Claimant’s
restrictions. (Employer Ex. B, R.R. at 40a-43a.) There is no requirement that all


                                         10
details concerning a job offer be in writing. Modification or suspension of benefits
may be based on an oral offer made in the course of litigation through testimony.
Crawford County Care Center v. Workmen’s Compensation Appeal Board (Daly),
649 A.2d 203, 204-06 (Pa. Cmwlth. 1994) (upholding modification of benefits based
on information concerning available work learned at hearings and deposition);
Devlin Electric, Inc. v. Workers’ Compensation Appeal Board (Shurina), (Pa.
Cmwlth., No. 837 C.D. 2013, filed Sept. 24, 2014), slip op. at 20 (“A job offer need
not be made before litigation [and] can be made to the claimant orally during the
course of the litigation, as confirmed through the employer’s testimony”.).5
               For the foregoing reasons, we conclude that the WCJ committed no
error in granting Employer’s suspension petition. Accordingly, the order of the
Board is affirmed.




                                             ____________________________________
                                             JAMES GARDNER COLINS, Senior Judge




5
 Because Devlin Electric is an unreported decision, it is not binding precedent, but is considered
by the Court for its persuasive value. 210 Pa. Code § 69.414(a).
                                               11
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Anthony Nahas,                           :
                                         :
                   Petitioner            :
                                         :
             v.                          :   No. 726 C.D. 2017
                                         :
Workers’ Compensation Appeal             :
Board (Synergistic Partners, Inc.),      :
                                         :
                   Respondent            :


                                      ORDER


             AND NOW, this 26th day of July, 2018, the order of the Workers’
Compensation Appeal Board in the above matter is AFFIRMED.




                                       ____________________________________
                                       JAMES GARDNER COLINS, Senior Judge
