                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jeffrey Baker,                          :
                    Petitioner          :
                                        :   No. 1176 C.D. 2017
             v.                         :
                                        :   Submitted: January 5, 2018
Workers’ Compensation Appeal            :
Board (Meiborg, Inc. and Gallagher      :
Bassett Services, Inc.),                :
                    Respondents         :


BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                      FILED: April 30, 2018


             Jeffrey Baker (Claimant) petitions for review of the July 27, 2017 order
of the Workers’ Compensation Appeal Board (Board), which affirmed the order of a
Workers’ Compensation Judge (WCJ) denying Claimant’s claim petition and petition
for penalties. We affirm.


                            Facts and Procedural History
             Claimant began working for Meiborg, Inc. as a truck driver in February
2014. Claimant drove one of Employer’s tractor-trailers, making deliveries in New
York, Pennsylvania, New Hampshire, Maine and Ohio. On April 30, 2014, Claimant
took his truck home “because the fairing looked loose and he wanted to check on it.”
(WCJ’s Finding of Fact (F.F.) No. 1(b).) Claimant injured his right arm and shoulder
when he fell off of a ladder that he was standing on to look at the fairing. (WCJ’s F.F.
Nos. 1(a)-(c); Board’s op. at 3.)
             Following the injury, Claimant called Rob Lawrence, a dispatcher for
Employer, to notify him of the injury but declined to go to the hospital, stating that,
although his arm was sore and numb, he could drive. Employer’s corporate secretary,
Zach Meiborg, subsequently called Claimant to check on him and ask whether he
needed to go to the hospital. Claimant responded that he wanted to wait a couple of
days to see how his shoulder “reacted.” (Board’s op. at 3.) Three days later, Claimant
spoke with Mr. Meiborg again and stated that he wanted to seek medical help because
his shoulder was not getting better. When Claimant related to Mr. Meiborg that he was
going to the hospital, Mr. Meiborg told him to “just go in, and we’ll take care of it
later.” (Id. at 4; WCJ’s F.F. Nos. 1(d), 1(f)-(g).)
             The doctor who saw Claimant believed he had suffered a rotator cuff tear
and gave him a prescription for an MRI. Claimant did not immediately have the MRI
performed because he “wanted to hold off for a while.”            (Board’s op. at 4.)
Approximately two weeks later, the doctor’s office called Mr. Mieborg, who then
communicated with Employer’s insurer, Gallagher Bassett, and Claimant had the MRI
done. Gallagher Bassett paid Claimant’s initial medical expenses and Claimant was
scheduled for surgery on July 24, 2014. (Id.; WCJ’s F.F. Nos. 1(h)-(k).)
             On July 23, 2014, the day prior to his surgery, Claimant was involved in
an argument with a customer and another employee and was terminated. Later that
day, Gallagher Bassett informed Claimant that his claim was denied but stated that all
of his medical expenses would be paid up to July 23, 2014. Claimant did not have the
surgery done the following day.



                                            2
              In December 2014, Claimant filed a claim petition and a penalty petition,1
and the matter was submitted to a workers’ compensation judge (WCJ), who held
multiple hearings.
              With regard to the events of July 23, 2014, Claimant testified that he
believed he was not scheduled to work that day,2 but Employer called him that morning
requesting that he pick up a trailer, drop it off at its destination, and leave, since they
“knew [Claimant] had appointments in the afternoon.” (Reproduced Record (R.R.) at
71a.) Claimant stated that he did so, but once he arrived at the destination, he was told
that he would not be allowed to drop the trailer and that he had to stay. Claimant
acknowledged getting into an argument with the dispatcher because he did not want to
miss his appointment. He stated that Mr. Meiborg called him and informed him that
he would be fired but needed to stay and wait for the tractor to be unloaded if he
expected to be paid. Claimant did so, after which he was told to clean out his truck and
return it. Claimant testified that, when Claimant returned home, Gallagher Bassett
notified him that his claim would be denied but that it would pay for his medical bills
up to July 23, 2014. Consequently, Claimant did not have the surgery. (WCJ’s F.F.
Nos. 1(k)-(m); Board’s op. at 4-5.)
              On cross-examination, Claimant stated that he did not recall Employer
ever informing him that he was forbidden from taking his truck home, nor did he recall
whether he received Employer’s handbook after being hired. He testified that he took
his truck home on multiple occasions and had sometimes washed and waxed it and that

       1
          Claimant submitted a petition seeking reinstatement of benefits as well as penalties;
however, the WCJ clarified that Claimant was in fact seeking workers’ compensation benefits and
therefore would treat his petition as a claim petition.

       2
         During his testimony, Claimant acknowledged that he did not fill out a written vacation
request because he was not “taking a vacation day,” but was simply under the impression that he was
not scheduled to deliver a load that day. (R.R. at 80a.)


                                                3
Mr. Meiborg and two others were aware that he had done so. Claimant also denied that
Employer had previously given him approval on a one-time-only basis to take his truck
home. (Board’s op. at 5.) Further, Claimant disagreed that Employer had a location
where employees were to take the trucks for mechanical issues, and he denied ever
having sustained a shoulder injury prior to the work incident in April. (Id.; WCJ’s F.F.
Nos. 1(o)-(p).)
             Claimant, however, did agree that he was terminated for his refusal to
deliver the load and for being argumentative, that he had issues with discipline prior to
July 23, 2014, and that he had had arguments with Mr. Meiborg “here or there.” (R.R.
at 83a.) Claimant also acknowledged that no one witnessed the accident and that there
was a place provided by Employer where the trucks were to be parked. Claimant stated
that his shoulder continues to bother him and he is unable to lift more than five pounds
above his head or do anything repetitive. Finally, Claimant stated that he began
working for another employer in June or July, after which he started with his current
employer in October 2014, where he earns more than he had with Employer. (WCJ’s
F.F. Nos. 1(q)-(u); Board’s op. at 5; R.R. at 87a-88a.)
             Claimant also presented the testimony of Jonathan Santos, who worked
for Employer as a company employee and subsequently as an owner-operator for
approximately two years. Mr. Santos testified that, while he was a company employee,
he owned his vehicle and would take it home nearly every weekend. Mr. Santos stated
that he told both Mr. Meiborg and another employee that he was doing so and that
Employer did not object or reprimand him for it. Mr. Santos also stated that he recalled
signing an employee handbook but did not know whether it stated that company trucks
could not be taken home without permission. He testified that some of the other drivers
also took their vehicles home, but acknowledged that he was not aware of whether they



                                           4
had specific permission to do so or whether employees had been fired because of it.
Mr. Santos testified that he had washed his truck using a ladder but agreed that
Employer had a specific company that it used to wash its trucks. (WCJ’s F.F. Nos.
2(a)-(i); Board’s op. at 5-6.)
               Finally, Claimant produced medical evidence in the form of reports
indicating he was injured on April 30, 2014, and suffered a right rotator cuff tear, more
specifically defined as “full thickness supraspinatus and infraspinatus tears” for which
surgery was recommended and planned. (WCJ’s F.F. No. 3.)
              Employer submitted corrective action forms, demonstrating that
Employer had a history of reprimanding and even terminating employees for taking
trucks home without permission. Additionally, Employer presented the testimony of
Mr. Meiborg, who handles the hiring, retention, and training of employees. Mr.
Meiborg stated that Employer is an over-the-road trucking company that has its
primary facility in Illinois, but serves customers in other states as well. Mr. Meiborg
testified it is Employer’s policy that trucks are to be parked at authorized locations and
that to do otherwise requires written approval. Mr. Meiborg stated that Employer does
not give blanket permission for employees to take their trucks home. Mr. Meiborg
noted that Claimant was given, and signed an acknowledgement that he had received,
a copy of the employee handbook, which sets forth Employer’s policies, including its
policy forbidding employees from taking vehicles home.3 (WCJ’s F.F. Nos. 5, 7(a)-
(c); Board’s op. at 6; R.R. at 296a.)
              With regard to leave, Mr. Meiborg stated that Employer’s policy requires
employees seeking time off to fill out an electronic, documented request on a formal
sheet called a “time off request form,” which are approved by him or one other person.

       3
         Mr. Meiborg stated that the policy was different for owner/operators since they owned their
trucks. (R.R. at 322a.)


                                                 5
(Board’s op. at 6.) Mr. Meiborg indicated that Employer needs to know about requests
for leave in advance for scheduling purposes. (Id.)
             Mr. Meiborg further testified that Employer does not want its drivers to
fix the trucks, as they are not qualified, and their doing so could result in liability for
Employer. He stated that all maintenance issues are to be reported to the shop foreman,
who finds a repairman in the area to fix the truck if there is an issue. Mr. Meiborg
noted that the employee handbook covers the proper reporting of maintenance issues,
and that Claimant was aware of the process. Additionally, Mr. Meiborg testified that
Employer does not require or ask its drivers to wash the trucks as that is contracted
through a third party, which all of its drivers use. (WCJ’s F.F. Nos. 7(i); Board’s op.
at 6-7.)
             With regard to Claimant’s injury, Mr. Meiborg stated that on May 1, 2014,
he received an email notifying him that Claimant had sustained a minor injury when
he fell off a ladder while washing his truck and was “okay to continue with his load.”
(R.R. at 303a.) The following day, Mr. Meiborg stated that he personally spoke with
Claimant, who stated that he was on a ladder cleaning his truck when he was injured.
Mr. Meiborg acknowledged that he was aware that Claimant had testified otherwise.
Specifically, he knew that Claimant testified that he was fixing the fairing when he was
injured. Mr. Meiborg explained that he initially reported the incident to its workers’
compensation insurance carrier because Claimant implied that it was a workers’
compensation injury and he assumed that Claimant was on duty when it occurred.
Later, Mr. Meiborg stated that he became aware that Claimant was off duty and at home
while working on the truck, against company policy, when the injury occurred. Mr.
Meiborg testified that he did not discipline Claimant and acknowledged this was
probably an oversight; however, he stated that he spoke with Claimant and expressed



                                            6
his disappointment that Claimant had taken the truck home against company policy.
(WCJ’s F.F. Nos. 7(f)-(h), (k); Board’s op. at 7.)
             As to the events leading up to Claimant’s termination, Mr. Meiborg
testified that Claimant advised that his surgery was scheduled for July 24 and requested
that day off. However, Mr. Meiborg stated that Claimant did not request off on July
23 and was asked to deliver “a short load” to one of Employer’s customers. (Board’s
op. at 7.) Mr. Meiborg stated that when Claimant arrived, the customer decided that
“it was not going to be a drop and hook trailer, [and instead] wanted to live unload it.”
(R.R. at 308a.) As a result, Mr. Meiborg stated that Claimant “became irate with the
customer [and, w]hen we called him to try to calm him down, he became irate with
dispatch.” (Id.) Mr. Meiborg indicated that this was at least the third incident of the
kind in which Claimant had “agitated a customer, as well as the dispatchers.” (R.R. at
309a.) As a result, Mr. Meiborg terminated Claimant. (WCJ’s F.F. Nos. 7(l)-(m);
Board’s op. at 7-8.)
             Employer also presented the testimony of its driver manager, Sean Van
Dusen, who had worked in trucking for nearly 20 years. Mr. Van Dusen testified that
there is no need to use a ladder when inspecting or washing a truck and confirmed that
Employer had a policy requiring both written and verbal permission to take a truck
home. Additionally, he testified that Employer’s policy is to have the driver notify the
shop if there are mechanical issues with the trucks, and noted that Employer’s
handbook contained a phone number for maintenance, as well as an after-hours
emergency number. Mr. Van Dusen stated that, within fifteen minutes of reporting a
maintenance issue, the driver is contacted and told where the vehicle should be taken
for repairs. Finally, Mr. Van Dusen stated that he would never do maintenance on his
own truck, acknowledged he had taken his truck home on occasion with specific



                                           7
approval, and confirmed that Employer had a relationship with a company for truck
washing. (WCJ’s F.F. Nos. 8(a)-(e); Board’s op. at 8.)
            Employer presented the testimony of Anthony Hilegass, who formerly
worked for Employer as a driver for one year and seven months. Mr. Hilegass testified
that when he was hired, he received an employee handbook, which set forth Employer’s
policy that drivers could not take trucks home without permission. He stated that he
had twice gotten permission to take his truck home by calling and asking. He also
acknowledged that he had done so without permission and had been verbally
reprimanded as a result. Mr. Hilegass testified that, during his 20-year career, he had
washed trucks but stated he had never used a ladder to do so and had never used a
ladder to climb onto a truck because “it’s just not safe.” (R.R. at 266a.) He likewise
confirmed that he was aware that Employer had a contract with a company for washing
its trucks. When asked about performing maintenance on his truck, Mr. Hilegass stated
that he had installed a lightbulb, but had done so with permission and from a position
standing on the ground. Additionally, he stated that it was Employer’s procedure for
maintenance issues to have drivers call in to report them, at which point they would
receive instructions. Finally, Mr. Hilegass stated that Employer’s policy with regard
to leave required the employee to ask for and receive permission to take off ahead of
time. (WCJ’s F.F. Nos. 9(a)-(f); Board’s op. at 8-9; R.R. at 269a.)
            Employer also presented the testimony of Michael Hilgart, who has
worked as a dispatcher for Employer for seven years. Mr. Hilgart testified that
Employer has a policy that requires drivers to have written permission to take a truck
home; however, he indicated that some drivers have blanket permission to do so
because “they are in more of a supervisory role.” (Board’s op. at 9.) Mr. Hilgart also
stated that drivers are permitted to take trucks home in cases of emergencies on Sunday



                                          8
nights so that there is not a service failure to customers on Monday mornings. With
regard to Claimant, Mr. Hilgart stated that Claimant had requested specific permission
to take his truck home, but did not have blanket permission to do so. (WCJ’s F.F. Nos.
10(a)-(b); Board’s op. at 9.)
             Mr. Hilgart also testified that written permission is required for employees
to take vacation and that, while Claimant had emailed to request leave in the past, Mr.
Hilgart saw no record of Claimant having requested leave on the day before his surgery.
As to the events on the day of Claimant’s termination, Mr. Hilgart testified that
Claimant became “very angry” with the customer because the process was taking too
long, at which point Mr. Hilgart handed the matter over to Mr. Meiborg. (R.R. at 257a.)
Mr. Hilgart noted that Claimant had had other issues with customers where he had not
acted professionally.   Finally, as to Claimant’s injury, Mr. Hilgart testified that
Claimant initially reported the injury to him, advising that it occurred while he was
washing his truck. (WCJ’s F.F. Nos. 10(c)-(d); Board’s op. at 9.)
             Finally, Employer presented the testimony of Thomas DiBenedetto, M.D.,
a board-certified orthopedic surgeon who examined Claimant in June 2015, and
diagnosed him with a two tendon retractor rotator cuff tear. He noted that some of the
findings could be degenerative conditions. Dr. DiBenedetto reviewed Claimant’s
records, which indicated that Claimant had fallen from a ladder and injured his right
shoulder but had not taken any time off of work. He noted that the medical records
from his initial visits after the injury did not include any mention of a work injury and
that surgery was scheduled but did not go forward. Dr. DiBenedetto also reviewed
Claimant’s testimony and noted that, despite the condition of his shoulder, Claimant
continued to work full duty. He explained that some people live with rotator cuff
symptoms for years. Ultimately, Dr. DiBenedetto stated it was his belief that Claimant



                                           9
had not injured himself as a result of his work duties because the events he reported
were inconsistent and vague and because he had continued driving without missing any
work. Dr. DiBenedetto acknowledged that, at some point, Claimant should get his
rotator cuff fixed, but opined that Claimant is capable of working full duty. (WCJ’s
F.F. Nos. 4(a)-(h); Board’s op. at 9; R.R. at 392a, 436a.)
              The WCJ found the testimony of Employer’s witnesses to be credible,
noting that they were generally consistent and often supported by documentation.
Conversely, the WCJ found that Claimant’s testimony was not entirely credible and
rejected it to the extent that it contradicted the testimony of Employer’s witnesses.
Further, the WCJ found that medical evidence demonstrated that Claimant incurred a
right rotator cuff tear and that further treatment was necessary. However, the WCJ
stated that, even if Claimant’s testimony were credible, his injury would not constitute
a work injury because truck washing, truck maintenance, and taking the truck home
were not within the scope of his employment. Thus, the WCJ denied the claim petition
and penalty petition. (WCJ’s F.F. Nos. 11-15.)
              Claimant appealed to the Board, but the Board affirmed. Claimant now
petitions for review with this Court.4
                                          Discussion
              In a workers’ compensation proceeding, the WCJ is the ultimate fact
finder and is the sole authority for determining the weight and credibility of evidence.
Lombardo v. Workers’ Compensation Appeal Board (Topps Company, Inc.), 698 A.2d


       4
         Our scope of review is limited to determining whether findings of fact are supported by
substantial evidence, whether an error of law has been committed, or whether constitutional rights
have been violated. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704; Meadow Lakes
Apartments v. Workers’ Compensation Appeal Board (Spencer), 894 A.2d 214, 216 n.3 (Pa. Cmwlth.
2006).



                                               10
1378, 1381 (Pa. Cmwlth. 1997). “As such, the WCJ is free to accept or reject the
testimony of any witness, including medical witnesses, in whole or in part.” Id. The
WCJ’s findings will not be disturbed on appeal when they are supported by substantial,
competent evidence. Greenwich Collieries v. Workmen’s Compensation Appeal Board
(Buck), 664 A.2d 703, 706 (Pa. Cmwlth. 1995). “Substantial evidence is such relevant
evidence which a reasonable mind might accept as adequate to support a finding.”
Berardelli v. Workmen’s Compensation Appeal Board (Bureau of Personnel, State
Workmen’s Insurance Fund), 578 A.2d 1016, 1018 (Pa. Cmwlth. 1990).
             Moreover, where both parties present evidence, it is irrelevant that the
record contains evidence which supports a finding contrary to that made by the WCJ;
rather, the pertinent inquiry is whether evidence exists that supports the WCJ’s
findings. Hoffmaster v. Workers’ Compensation Appeal Board (Senco Products, Inc.),
721 A.2d 1152, 1155 (Pa. Cmwlth. 1998).
            Additionally, on appeal, all inferences drawn from the evidence shall be
taken in favor of the party prevailing before the WCJ. Krumins Roofing & Siding v.
Workmen’s Compensation Appeal Board (Libby), 575 A.2d 656, 659 (Pa. Cmwlth.
1990).


                a. Prompt Determination and Equitable Estoppel
            Before this Court, Claimant raises three issues. In his first and second
related issues, he argues that the Board erred by failing to award Claimant benefits
where Employer failed to comply with the prompt-determination requirements of 77




                                         11
P.S §717.15 and 34 Pa. Code §121.13,6 after being notified that Claimant had sustained
an alleged work-related injury. Claimant argues that Employer induced him into
believing that his injury was going to be treated as a workers’ compensation injury for
approximately three months by failing to timely deny his claim, “only then to abruptly
fire him the day before that surgery, [and] direct[] that the surgery be cancelled.”
(Claimant’s brief at 10.) Claimant cites to Mosgo v. Workmens’ Compensation Appeal
Board (Tri-Area Beverage, Inc.), 480 A.2d 1285 (Pa. Cmwlth. 1984), and Kelly v.
Workmen’s Compensation Appeal Board (DePalma Roofing), 669 A.2d 1023 (Pa.
Cmwlth. 1995), arguing that Employer’s voluntary payment of Claimant’s medical
bills up to the date of his termination makes its challenge to liability per se unreasonable
because, if Employer had denied his claim sooner, he would have still been able to use
his health insurance through Employer to pay for the surgery. Thus, Claimant asserts
that Employer’s “inappropriate conduct” left him without workers’ compensation
benefits as well as without health insurance (due to his termination) and thus without
the ability to pay for the surgery. (Claimant’s brief at 10.) Claimant requests that this
Court reverse the Board on the basis of equitable estoppel arising from Employer’s
alleged misconduct and remand to the WCJ for calculation of appropriate counsel fees.

       5
          Section 406.1 of the Workers’ Compensation Act (Act), added by the Act of February 8,
1972, P.L. 25, as amended, 77 P.S. §717.1, requires prompt payment of compensation or further
notice of the decision within 21 days after the employer becomes aware of the injury.

       6
           This regulation states:

                 If compensation is controverted, a Notice of Workers' Compensation
                 Denial, Form LIBC-496, shall be sent to the employee or dependent
                 and filed with the Bureau, fully stating the grounds upon which the
                 right to compensation is controverted, within 21 days after notice or
                 knowledge to the employer of the employee's disability or death.

34 Pa. Code §121.13


                                                  12
             In response, citing Bailey v. Workers’ Compensation Appeal Board
(ABEX Corp.), 717 A.2d 17 (Pa. Cmwlth. 1998), Employer notes that an employer’s
voluntary payment of an employee’s medical bills is not an admission of liability.
Employer also distinguishes Mosgo and Kelly, stating that those cases stand for the
proposition that employers who make voluntary payments to employees while
reserving the right to deny a workers’ compensation claim in the future are estopped
from denying the compensability of the claim since reservation of rights is null and
void under the Act.
             We agree. As in Bailey, here, Employer’s payment of Claimant’s medical
expenses up to July 23, 2014, did not constitute an admission of liability for an
unaccepted injury. 77 A.2d at 19 (“[W]hen an employer voluntarily pays a claimant's
medical bills, it should not be considered an ‘admission’ of liability on behalf of the
employer.”). As such, Claimant’s argument that Employer is estopped from contesting
the work-related injury fails.
             Further, in Lemansky v. Workers’ Compensation Appeal Board (Hagan
Ice Cream Company), 738 A.2d 498 (Pa. Cmwlth. 1999), this Court held that a claimant
was entitled to attorney’s fees where there was no dispute as to the compensability of
the work-related injury and the employer “attempted to evade entering into an
agreement recognizing the injury as required by § 406.1 of the Act on the basis that the
claimant did not suffer a loss of earnings. 77 P.S. § 717.1.” Id. at 503.
             Conversely, here, we note that Mr. Meiborg testified it did not matter to
him whether Claimant’s surgery was paid for through Employer’s health insurance or
workers’ compensation insurance because Employer’s premiums would increase either
way and “getting [his] employees healthy and getting the freight delivered” was his
main concern. (R.R. at 314a.) He stated that he reported the injury to Gallagher Bassett



                                          13
and left it to the company’s adjustors to investigate and determine whether it was in
fact a work-related injury. (R.R. at 329a.) Mr. Meiborg testified that he did not express
an opinion as to whether he believed Claimant suffered a work-related injury because
it would have been inappropriate for him to do so, as that decision was for the insurance
company to decide after conducting an investigation. (R.R. at 328a-29a.) When asked
about why there was a delay in the insurance company’s determination, Mr. Meiborg
indicated that he did not know but believed that it had to do with turnover of employees
at the insurance company. (R.R. at 329a.)
               Here, Employer did not make voluntary payments to Claimant with the
intent to compensate him in lieu of accepting his injury, nor did it purposefully evade
entering into an agreement recognizing the injury as required under the Act, while
acknowledging that there was a work-related injury. As such, the facts of this case are
distinguishable from Mosgo, Kelly, and Lemansky, and Employer was not estopped
from contesting Claimant’s claim. Further, Employer demonstrated that its contest was
reasonable given that Claimant was in violation of at least two of Employer’s policies:
(1) taking the vehicle home, and (2) washing or performing maintenance on the vehicle.
Accordingly, Claimant is not entitled to attorney’s fees.7

       7
        Claimant is likewise not entitled to payment for Employer’s failure to issue a notice of denial
within 21 days under section 406.1 of the Act. Section 406.1 states that the first installment of
compensation is due no later than 21 days after the employer has notice or knowledge of the
employee’s disability and provides for the accrual of 10% interest on “all due and unpaid
compensation at the rate of [10%] per annum.” 77 P.S. §717.1(a).

        In this case, however, Claimant cannot receive interest on payments to which he is not entitled.
As we noted in Brutico v. Workers’ Compensation Appeal Board (U.S. Airways, Inc.), 866 A.2d 1152
(Pa. Cmwlth. 2004), “Because there was a violation of the Act, penalties would have been awardable.
However, the claim petition had to be granted as well as some ‘measure’ against which the WCJ could
use to award penalties. Because Claimant's petition was denied, no penalties [can] be awarded.” Id.
at 1156 (internal citations omitted). See also Coyne v. Workers’ Compensation Appeal Board



                                                  14
                                  b. Spoliation of Evidence
              In his final issue, Claimant argues that the Board erred in refusing to
overturn the WCJ for disregarding the issue of Employer’s willful destruction of
material evidence. Specifically, Claimant states that Employer was put on notice of
Claimant’s intent to file a claim petition five days after his termination. Claimant
asserts that, despite this knowledge, Employer destroyed driver log books of Claimant
and others, which would have conclusively demonstrated the extent to which Claimant
and other employees were routinely permitted to take vehicles home.                      Claimant
contends that the driver logs were relevant since the WCJ denied the claim petition “on
the theory that drivers were supposedly forbidden from—and never did, without being
sanctioned—taking vehicles home.” (Claimant’s brief at 33.)
              In response, Employer argues that the driver logs were not relevant, and
even if they were, they were not destroyed by Employer in bad faith. Specifically,
Employer states that the WCJ did not need to address the issue of the driver logs during
the time that Claimant worked for Employer because WCJ did not require them in order
to determine that taking the truck home when Claimant was neither a supervisor, nor
the owner of the truck, was not within the scope of his employment.
              Employer also argues that the log books were only reviewed to determine
driver compliance with federal Department of Transportation records, and that Mr.
Meiborg’s testimony demonstrated that it was Employer’s policy to only keep the
records for six months, after which they were automatically destroyed. Thus, Employer

(Villanova University), 942 A.2d 939, 951 (Pa. Cmwlth. 2008) (“We are not aware of any authority
permitting an award of benefits to a claimant who would not otherwise be entitled to them based upon
an employer's failure to comply with the Act.”); Palmer v. Workers’ Compensation Appeal Board
(City of Philadelphia), 850 A.2d 72, 77 (Pa. Cmwlth. 2004) (“[W]e will not award penalties based
upon unknown numbers . . . .”) (internal quotation marks omitted).


                                                15
asserts that if driver logs were missing at the time of litigation, it was solely because of
Employer’s general policy of destroying them and not as a result of the bad faith of
Employer.
             When determining the proper penalty for the alteration or destruction of
evidence, relevant factors for the court to consider include: “(1) the degree of fault of
the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by
the opposing party, and (3) the availability of a lesser sanction that will protect the
opposing party’s rights and deter future similar conduct.” Schroeder v. Department of
Transportation, 710 A.2d 23, 27 (Pa. 1998).
             In this case, it does not appear the destruction of the log books was done
in bad faith.    During his testimony, Mr. Meiborg emphasized that he was not
experienced with the workers’ compensation matters, was “new to the PA trucking
market, [ ] absolutely new to the work comp. market, and [was] just unaware of how
things are done.” (R.R. 327a.) Additionally, as Employer notes, Mr. Meiborg stated
that Employer had a policy for destruction of physical log books, which was followed
with regard to the records here, where an employee in the log audit department would
handle the weekly shredding and discarding the log books older than six months. (R.R.
at 322a.) As to electronic log books, which Employer began using in some vehicles in
2014, Mr. Meiborg stated that they were “just automatically disposed of through our
vendor.” (R.R. at 323a-24a.) Thus, Employer followed its usual policy regarding
destruction of books here. Critically, Employer did not selectively destroy specific
logs, nor did it destroy the books before the six month point. As such, we conclude
that their destruction was done in accordance with a bona fide company policy and
there is no evidence to suggest that Employer destroyed the records in bad faith or with
the intent of discarding inculpatory evidence.



                                            16
             Additionally, we fail to see how Claimant was prejudiced, as Claimant
was able to present other evidence in support of his argument that drivers who took
their trucks home would have documented it in the log books, which Employer had the
opportunity to review. Specifically, Claimant testified to his belief that he was able to
take his truck home at will and that Employer was aware that he did so. (R.R. at 77a-
79a.) Claimant also presented the testimony of Mr. Santos, who also testified that he
frequently took his truck home and documented it in his log book. (R.R. at 273a-74a.)
Further, two of Employer’s witnesses, Mr. Hilegass and Mr. Van Dusen, testified that,
if and when they took their trucks home, they would indicate it in their log books, which
were submitted to Employer for review. (R.R. at 268a, 287a-88a.) Thus, presentation
of the log books would have been duplicative of the testimony of the numerous
witnesses.
             Moreover, Mr. Meiborg, whose testimony the WCJ found to be credible,
stated that in 2014, he had one employee, Mike Morris, who reviewed the drivers’ log
books to ensure that the drivers were compliant with federal Department of
Transportation regulations and to confirm that the tolls and fuel the drivers reported
confirmed that the drivers “were where they said they were supposed to be at that time.”
(R.R. at 324a.) Mr. Meiborg acknowledged that if a driver had taken a vehicle home
and reported it on the log, it would have been noticeable to anyone looking at the log;
however, he testified that Mr. Morris would not have been checking the log books to
determine whether employees had taken their trucks home, as Mr. Morris was not privy
to information regarding whether drivers were permitted to do so. (Id.)
             Notwithstanding Mr. Meiborg’s acknowledgement that Employer had the
opportunity to review the log books but did not direct the employee who did so to
review whether drivers were abiding by its policies, the WCJ still found that Employer



                                           17
had a policy against drivers taking their vehicles home. As such, Claimant’s attempt
to show that employees who took their trucks home, including those who did so
frequently in violation of Employer’s policy, documented it in the log books that
Employer had the ability to review, was not hindered by his inability to present the
physical books.
             Furthermore, even if Claimant had been able to use the log books to prove
that Employer did not have, or did not enforce, a policy regarding taking vehicles home,
Claimant’s argument nonetheless fails because that evidence would not have addressed
or disputed the WCJ’s findings that Claimant was otherwise outside the scope of his
employment when he was injured because he was violating one of Employer’s two
other policies against allowing drivers to wash or perform maintenance on their trucks.
As such, Claimant’s argument regarding the spoliation of evidence fails. See Nevin
Trucking v. Workmen’s Compensation Appeal Board (Murdock), 667 A.2d 262, 268
(Pa. Cmwlth. 1995) (holding that a truck driver who was injured while changing a tire
in direct violation of a positive order was not within the scope of his employment).


                                       Conclusion
             In conclusion, Claimant’s argument that Employer was estopped from
contesting the claim petition fails because Employer’s payment of Claimant’s medical
bills did not constitute an admission of liability for an unaccepted injury. Further,
Claimant is not entitled to attorney’s fees since Employer’s contest was reasonable as
Claimant was outside the scope of his employment when injured. Finally, we do not
agree that Employer’s destruction of the log books was done in bad faith or that
Claimant was prejudiced as a result.
             Accordingly, we affirm the order of the Board.



                                          18
                                ________________________________
                                PATRICIA A. McCULLOUGH, Judge



Senior Judge Colins dissents.




                                19
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jeffrey Baker,                         :
                  Petitioner           :
                                       :    No. 1176 C.D. 2017
            v.                         :
                                       :
Workers’ Compensation Appeal           :
Board (Meiborg, Inc. and Gallagher     :
Bassett Services, Inc.),               :
                    Respondents        :


                                     ORDER


            AND NOW, this 30th day of April, 2018, the July 27, 2017 order of the
Board is hereby affirmed.



                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge
