          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Michael O'Connor,                        :
                    Petitioner           :
                                         :
            v.                           :   No. 1635 C.D. 2016
                                         :   SUBMITTED: March 3, 2017
Workers' Compensation Appeal             :
Board (Laminations, Inc.),               :
                 Respondent              :


BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                                  FILED: August 25, 2017


            Michael O'Connor, Claimant, petitions for review of an order of the
Workers’ Compensation Appeal Board (Board) that affirmed a decision of a
Workers’ Compensation Judge (WCJ) granting Claimant’s claim petition filed
against Employer Laminations, Inc., but denying his penalty petition. We affirm.
            Claimant has worked for Employer since 1986. A fork lift operator,
he sustained a work-related lower back injury in March 2013 while changing the
forks on his fork lift. He reported the injury and received medical treatment from a
panel provider. In a March 25, 2013, notice of temporary compensation payable
(NTCP), Employer acknowledged the injury as a lower back area strain and
provided compensation at the weekly rate of $565.11 based on an average weekly
wage of $847.66. Pursuant to a notice of ability to return to work, Claimant
returned to work in a modified-duty capacity as a sheet counter on May 20, 2013,
and worked forty-hour weeks at an hourly wage of $13.44. After the end of an
eight-hour shift, Claimant’s back hurt. WCJ’s April 30, 2015, Decision, Finding of
Fact (F.F.) No. 5.1 Employer permitted him to lie down, stretch, and get up and
walk around during the workday. Id.
               On May 22, 2013, Employer issued both a notice of compensation
denial (NCD), acknowledging a work injury but contesting the extent of disability,
and a notice stopping temporary compensation payable (NSTCP). Id., Nos. 3 and
5. On June 18, 2013, Claimant filed a claim petition alleging lumbar disc injuries
with left leg radiculopathy. On July 25, 2013, Claimant filed a penalty petition
alleging that Employer violated the Workers’ Compensation Act2 by improperly
issuing the NCD.         Also on July 25, 2013, Employer notified Claimant that
overtime was available and directed him to contact his immediate supervisor for
assignments. Id., Nos. 5 and 13. Claimant’s supervisor testified that overtime was
available on a volunteer basis seven days per week but not mandated. Id., No. 6.
In electing not to request any overtime assignments, Claimant consulted Leroy J.
Pelicci, M.D., who allegedly had limited Claimant’s work activities to forty hours
per week. Id., Nos. 5, 6 and 14. On July 29, 2013, Employer issued a medical-
only NCP once again acknowledging Claimant’s injury as a “lower back area
strain.” Id., Nos. 3 and 5.
               In support of his petitions, Claimant testified and presented the
deposition testimony of Dr. Pelicci, a board-certified neurologist who first treated
him in June 2013. The WCJ credited Claimant’s testimony regarding his work
injury, his subsequent medical treatment, and return to work in a modified-duty

    1
       In Finding of Fact No. 5, the WCJ recited that Claimant testified that his back hurt at the
end of the day. In view of the WCJ’s subsequent acceptance of Claimant’s testimony, inter alia,
regarding his return to work in a modified-duty capacity, we conclude that the WCJ credited his
testimony regarding his back pain. See F.F. No. 16 (fact-finding where the WCJ accepted
Claimant’s testimony on specific subjects as credible and persuasive).
     2
       Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1 - 1041.4, 2501 - 2708.


                                                2
capacity. Id., No. 16. Further, the WCJ accepted Dr. Pelicci’s testimony that
Claimant suffered from a lumbar injury and aggravation of a pre-existing
condition, but rejected his testimony that he limited Claimant to working a forty-
hour week. Id., No. 19. In rejecting that part of the doctor’s testimony, the WCJ
found Dr. Pelicci’s recollections to be inconsistent with the record and noted that
the documentation that Claimant provided to Employer from the doctor did not
include that limitation. Id. Specifically, the WCJ found that the July 25, 2013,
note that Claimant submitted from Dr. Pelicci limited the employee to working
eight hours per day. Id., No. 14.
             Employer offered the testimony of Claimant’s supervisor and Allister
Williams, M.D., a board-certified orthopedic surgeon who examined Claimant in
August 2013. The WCJ credited the testimony of Claimant’s supervisor that he
discussed the availability of overtime with Claimant, that he explained to Claimant
that it was available seven days per week, and that Claimant never requested any
overtime assignments. Id., No. 17. Additionally, the WCJ accepted Dr. Williams’
testimony to the extent that he acknowledged Claimant’s work injury as a lumbar
sprain/strain and possible aggravation of a pre-existing condition. Id., No. 19.
             In rendering his decision, the WCJ determined that Claimant
established grounds for his claim petition and awarded him “benefits for a work
injury described as a lower back strain with aggravation of pre-existing
degenerative condition.” Id., Conclusion of Law No. 2. In so doing, the WCJ
concluded:
             Claimant is entitled to temporary total disability benefits
             from March 7, 2013 until his return to work on May 20,
             2013 at which time [he] is entitled to temporary partial
             disability benefits. [His] wage loss benefits should be
             suspended after July 25, 2013 based upon the availability
             of overtime.


                                          3
Id. In addition, the WCJ denied Claimant’s penalty petition, determining that there
was a reasonable basis for the contest. The Board affirmed and Claimant’s petition
for review followed.
              Claimant presents three issues on appeal: (1) whether the WCJ erred
in suspending benefits effective July 25, 2013, based on the availability of
overtime; (2) whether the WCJ erred in determining that there was a reasonable
contest; and (3) whether the WCJ erred in concluding that there was no merit to
Claimant’s penalty petition based on Employer’s issuance of the NCD. We turn to
the first issue.
              Regarding the suspension of benefits as of the date overtime became
available, Claimant alleges that the WCJ erred in failing to shift the burden of
proof on Employer to establish a change in his physical condition and the
availability of work within his restrictions pursuant to Kachinski v. Workmen’s
Compensation Appeal Board (Vepco Construction Co.), 532 A.2d 374 (Pa. 1987).
We disagree.
              In a claim petition proceeding, the claimant bears the burden of
establishing his or her right to compensation and all of the elements necessary to
support an award of benefits, including the duration and extent of the disability
alleged. Rife v. Workers’ Comp. Appeal Bd. (Whitetail Ski Co.), 812 A.2d 750,
754-55 (Pa. Cmwlth. 2002). The claimant’s burden encompasses proof that the
work injury continues to cause disability throughout the pendency of the claim
petition. Innovative Spaces v. Workmen’s Comp. Appeal Bd. (DeAngelis), 646
A.2d 51, 54 (Pa. Cmwlth. 1994).
              In the present case, the claim petition was still pending when overtime
became available and the burden never shifted to Employer to establish a change in
Claimant’s physical condition and the availability of work. As previously noted:
“[T]he claimant’s burden to prove disability never shifts to the employer and this
                                          4
burden remains with the claimant throughout the pendency of the claim petition.”
Potere v. Workers’ Comp. Appeal Bd. (Kemcorp), 21 A.3d 684, 690 (Pa. Cmwlth.
2011). Moreover, “[e]ven when an employer issues a notice of compensation
denial which acknowledges an injury but disputes disability, the claimant
maintains the burden to prove he is entitled to benefits.” Id.
               Here, the WCJ did not find Dr. Pelicci credible regarding his alleged
imposition of a forty-hour work week limitation and observed that the evidence
viewed as a whole undermined the doctor’s recollections.3 F.F. No. 19. In that
regard and mindful that Claimant bore the burden of proof, the WCJ found:
“Claimant’s contention that he was restricted to working 40 hours per week is
rejected as inconsistent with the medical release that he provided to the Employer
on July 25, 2013. . . . The credible evidence of record fails to establish that
Claimant could not work overtime in the modified duty position.” Id., No. 18.
Accordingly, in light of the fact that Claimant failed to establish ongoing and
continuing disability which precluded him from working overtime, the burden
never shifted to Employer to undertake the burdens set forth in Kachinski. We turn
now to whether the WCJ erred in determining that there was a reasonable contest.
               Pursuant to Section 440(a) of the Act,4 77 P.S. § 996(a): “[W]here a
claimant succeeds in a litigated case reasonable counsel fees are awarded against
the employer, as a cost, unless the employer meets its burden of establishing facts
sufficient to prove a reasonable basis for the contest.” U.S. Steel Corp. v. Workers’

    3
       A WCJ as the ultimate fact finder is free to accept or reject the testimony of any witness,
including medical witnesses, in whole or in part. Milner v. Workers’ Comp. Appeal Bd. (Main
Line Endoscopy Ctr.), 995 A.2d 492, 496 (Pa. Cmwlth. 2010). Determinations of credibility and
evidentiary weight are within the WCJ’s exclusive province. Ward v. Workers’ Comp. Appeal
Bd. (City of Phila.), 966 A.2d 1159, 1164 (Pa. Cmwlth. 2009). Neither this Court nor the Board
in their appellate capacities is entitled to reassess the credibility of witnesses or to reweigh their
testimony.
     4
       Section 440 was added by the Section 3 of the Act of February 8, 1972, P.L. 25.


                                                  5
Comp. Appeal Bd. (Luczki), 887 A.2d 817, 820 (Pa. Cmwlth. 2005). The award of
attorney’s fees is mandatory under Section 440(a) unless the employer meets its
burden. Yeagle v. Workmen’s Comp. Appeal Bd. (Stone Container Corp.), 630
A.2d 558, 559 (Pa. Cmwlth. 1993).             In determining whether a contest is
reasonable, we must look to the totality of the circumstances. Eidell v. Workmen’s
Comp. Appeal Bd. (Dana Corp.), 624 A.2d 824, 826 (Pa. Cmwlth. 1993). The
propriety of the imposition of attorney’s fees for an unreasonable contest is a
question of law subject to plenary review by the Board and this Court. Jordan v.
Workers’ Comp. Appeal Bd. (Phila. Newspapers, Inc.), 921 A.2d 27 (Pa. Cmwlth.
2007).
             In the present case, the parties disputed the period of Claimant’s
disability, as well as its extent. For example, Claimant in his claim petition alleged
lumbar disc injuries with left leg radiculopathy and Employer acknowledged only a
lower back area strain. Medical evidence from two board-certified physicians
differed on key points. Accordingly, we conclude that the WCJ did not err in
declining to award counsel fees because there was a reasonably contested issue.
See Elite Carpentry Contractors v. Workmen’s Comp. Appeal Bd. (Dempsey), 636
A.2d 250, 252 (Pa. Cmwlth. 1993) (contest is reasonable if prompted by a
genuinely disputed issue rather than to harass a claimant).
             Finally, we conclude that the WCJ did not err in denying Claimant’s
penalty petition based on Employer’s issuance of the NCD. In proving grounds for
a penalty petition, a claimant bears the burden of establishing a violation of the Act
or its rules or regulations that appears in the record. Shuster v. Workers’ Comp.
Appeal Bd. (Pa. Human Relations Comm’n), 745 A.2d 1282, 1288 (Pa. Cmwlth.
2000). While it is true that Employer issued a NCD contesting the extent of
Claimant’s disability, it once again acknowledged his lower back area strain. In
addition, it even issued a medical-only NCP, again acknowledging the injury. In
                                          6
circumstances where employers issued a NTCP accepting an injury but
subsequently issued a NCD challenging ongoing disability, this Court has held that
the employers’ actions were consistent with the Act and that no violation occurred.
E.g., Potere, 21 A.3d at 691-92; Armstrong v. Workers’ Comp. Appeal Bd. (Haines
& Kibblehouse, Inc.), 931 A.2d 827, 830 (Pa. Cmwlth. 2007).           The penalty
petition, therefore, was properly denied.
             Accordingly, viewing the evidence in a light most favorable to
Employer as the party who prevailed before the WCJ, Waldameer Park, Inc. v.
Workers’ Compensation Appeal Board (Morrison), 819 A.2d 164, 168 (Pa.
Cmwlth. 2003), we affirm.



                                       _____________________________________
                                       BONNIE BRIGANCE LEADBETTER,
                                       Senior Judge


Judge McCullough did not participate in the decision of this case.




                                            7
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Michael O'Connor,                    :
                    Petitioner       :
                                     :
           v.                        :   No. 1635 C.D. 2016
                                     :
Workers' Compensation Appeal         :
Board (Laminations, Inc.),           :
                 Respondent          :



                                 ORDER


           AND NOW, this 25th day of August, 2017, the order of the Workers’
Compensation Appeal Board is hereby AFFIRMED.



                                  _____________________________________
                                  BONNIE BRIGANCE LEADBETTER,
                                  Senior Judge
