         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Carson Valley School and Inservco              :
Insurance Services, Inc.,                      :
                                               :
                      Petitioners              :
                                               :
              v.                               : No. 1159 C.D. 2016
                                               : No. 1160 C.D. 2016
Workers’ Compensation Appeal                   : Submitted: February 6, 2017
Board (Estate of Ashley Conway),               :
                                               :
                      Respondent               :


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                             FILED: March 17, 2017


              In these consolidated appeals, Carson Valley School (Employer)
petitions for review of two orders of the Workers’ Compensation Appeal Board
(Board), which affirmed in part and reversed in part two decisions of a Workers’
Compensation Judge (WCJ). Employer appeals from the Board orders to the
extent they granted two Claim Petitions brought by Ashley Conway (Claimant)1
1
  Claimant died on November 18, 2016, subsequent to the filing of these appeals, of causes
unrelated to her work injuries. Upon an application to substitute party by Claimant’s counsel and
submission of the certificate of grant of letters of administration issued by the Montgomery
County Register of Wills, this Court ordered that the Estate of Ashley Conway, Lula Conway,
Administratrix, be substituted as the Respondent in these matters and that the captions be
amended to reflect the substitution.
against Employer for injuries to her right ring finger on May 31, 2012 and
September 14, 2013. In its appeal, Employer argues that Claimant was not entitled
to wage-loss disability benefits for the period after December 11, 2013 because
Claimant’s employment was terminated for bad faith conduct unrelated to her work
injuries. For the reasons that follow, we affirm the orders of the Board.
             The   facts   regarding    Claimant’s   injury   history   are   not   in
dispute. Claimant worked as a children’s aide at Employer, which is a group home
facility for at-risk children. (WCJ Decisions, Findings of Fact (F.F.) ¶¶3a, 7.) On
May 31, 2012, Claimant sustained an injury to her right finger, left elbow and left
hand while attempting to break up a fight between two students. (Id., F.F. ¶¶3b, 7.)
Employer accepted this injury through a medical-only Notice of Temporary
Compensation Payable (NTCP) on June 7, 2012, which converted into a medical-
only Notice of Compensation Payable (NCP). (Id., F.F. ¶1.) Claimant returned to
work with restrictions on June 5, 2012, however, Claimant’s right ring finger was
crooked and she wore a splint to correct it. (Id., F.F. ¶¶3c, 7.) In January 2013,
Dr. Mark Rekant performed surgery on Claimant’s right ring finger, and she
returned to work in March 2013. (Id.) Employer issued an NTCP in January 2013
for a central slip disruption of Claimant’s right ring finger and paid Claimant
disability benefits during the period she was out of work. (Id., F.F. ¶1.)
             On September 14, 2013, Claimant reinjured her right ring finger while
attempting to restrain a student who attempted to stand up and walk away despite
being confined to a wheelchair. (Id., F.F. ¶¶3d, 7.) Claimant returned to work, and
Employer accepted this second injury as work related. (Id., F.F. ¶¶3e, 7, 15.) On
December 11, 2013, Employer terminated Claimant’s employment when it
discovered that her driver’s license was suspended after she had been warned in


                                          2
September 2013 that failure to maintain a valid driver’s license could result in her
discharge. (Id., F.F. ¶¶3e, 4b, 7, 8.)
             Claimant filed the Claim Petition for the first injury date on February
4, 2014 and filed the Claim Petition for the second injury date on July 9, 2014. In
addition, Claimant also filed a Penalty Petition on August 22, 2014, in which she
alleged that Employer and its insurer failed to comply with their obligation to pay
wage-loss disability benefits consistent with the NTCP and a notice of conversion
dated February 12, 2014. Although consolidated hearings were held for the three
petitions, the Claim Petitions were filed under a separate docket number from the
Penalty Petition. The WCJ and Board each issued two identical decisions and
orders, one for each docket number.
             In the proceedings before the WCJ, Claimant testified by deposition
and at a hearing. Claimant presented the deposition testimony of her surgeon, Dr.
Rekant, who testified that Claimant is only capable of sedentary to light duty work,
while Employer presented the deposition testimony of its expert, Dr. Andrew
Sattel, who opined that Claimant was capable of light to medium duty work. (WCJ
Decisions, F.F. ¶¶5d, 6c.)     In addition, Employer’s assistant human resources
director, Richard Kryston, testified in a hearing before the WCJ.
             Both Claimant and Kryston testified regarding the circumstances of
Claimant’s termination.     Claimant testified that she first learned her driver’s
license was suspended during a traffic stop in August 2013 while driving to work
and stated that the police officer advised her to go to Philadelphia Traffic Court to
resolve the issue. (Sept. 30, 2014 Hearing Transcript (H.T.) at 90-92, Reproduced
Record (R.R.) 182-184; Claimant Dep. at 70-71, R.R. 220.) Claimant testified that
between the date of this traffic stop and September 9, 2013, when she drove a


                                         3
group of Employer’s students on a field trip to a New Jersey amusement park, she
went to Traffic Court and called the Pennsylvania Department of Transportation
(PennDOT) and she determined that her suspension was the result of the fact that a
notice of a citation had been returned to PennDOT as undeliverable and her failure
to pay a $25 license restoration fee. (H.T. at 90-92, R.R. 182-184, 190; Claimant
Dep. at 74-75, R.R. 221.) Claimant testified that Employer discovered during the
September 9, 2013 field trip that her license had been suspended through one of
Claimant’s co-workers; at a disciplinary meeting several days later, Claimant
explained to her supervisor that she had taken steps to address the suspension and
she believed the suspension had been lifted as of the date of the field trip because
she had paid the restoration fee. (H.T. at 91-93, 98, R.R. 183-85, 190; Claimant
Dep. at 71-75, R.R. 220-21.) Claimant stated that she provided proof to Kryston
that her license was restored following the field trip and Kryston verified with
PennDOT that her license was restored. (H.T. at 94-95, R.R. 186-87.)
            Claimant explained that PennDOT again suspended her license for
one year on October 25, 2013, but that she was not aware of the suspension until
Employer discovered it on December 9, 2013 and brought it to her attention. (Id.
at 95-96, R.R. 187-88.) Claimant testified that she informed Employer that this
suspension was a mistake, but that she was nevertheless discharged on December
11, 2013. (Id. at 96, R.R. 188; Claimant Dep. at 35, 39-40, 79, 81, R.R. 211-12,
222.) According to Claimant, she immediately went to Traffic Court where she
was told that the suspension was in error and she was given a copy of the citation
and returned mail that went to an incorrect address; Claimant stated that she
informed her supervisor on December 13, 2013 of the situation regarding her
license suspension and dropped off the relevant documents for Kryston, but did not


                                         4
receive a response. (Claimant Dep. at 40-44, 82-83, 95-97, R.R. 212-213, 223,
226.) Claimant testified that her license was restored by PennDOT notice dated
February 19, 2014, effective December 30, 2013, and the license remained valid as
of the date of her hearing testimony. (H.T. at 79-80, 96-97, R.R. 171-72, 188-189;
Claimant Dep. at 43, R.R. 213.)
            Kryston testified that having a valid driver’s license was a condition
of employment for Claimant because her job duties included driving students on
home visits and school trips. (H.T. at 10, 23-24, 32, R.R. 104, 117-118, 125.)
Kryston stated that, on September 9, 2013, an employee who had driven with
Claimant and driven several students to the New Jersey amusement park reported
to a supervisor that Claimant had said that her license was suspended. (Id. at 30-
31, R.R. 123-124.) According to Kryston, when he met with Claimant after the
amusement park incident she said that she was not aware that her license was
suspended. (Id. at 31, 49, R.R. 124, 141.) Kryston testified that Claimant could
have been terminated at that time based on the failure to maintain a valid driver’s
license, but she was instead placed on administrative leave and was issued a
warning, or “counseling report,” which informed Claimant that any future
suspensions would lead to the termination of her employment. (Id. at 17-20, 24,
32, 50-51, R.R. 111-114, 118, 125, 142-143.)       Kryston stated that Employer
removed Claimant from administrative leave when Claimant presented PennDOT
documents that showed her license was restored. (Id. at 50-51, R.R. 142-143.)
Kryston testified that, in accordance with this warning, Claimant completed and
signed a form that authorized Employer to perform periodic checks of Claimant’s
driver’s license status on PennDOT’s website. (Id. at 23, 25, 31-32, R.R. 117, 119,
124-125.)


                                        5
             Kryston testified that, on December 9, 2013, his supervisor, the head
of human resources, performed a quarterly check of Claimant’s license status on
PennDOT’s website and discovered that the license was suspended. (Id. at 24-25,
28, R.R. 118-119, 121.) Kryston stated that the decision was then made by her
supervisor with his approval to terminate Claimant’s employment for failure to
have a valid driver’s license, which was contrary to her job requirements and was
consistent with the September 2013 counseling report. (Id. at 21-24, 28, R.R. 115-
118, 121.)
             The WCJ issued two decisions and orders on July 6, 2015 granting the
two Claim Petitions and the Penalty Petition. The WCJ found Claimant to be
credible and accepted her testimony in its entirety, accepted Kryston’s testimony as
credible except to the extent it conflicted with Claimant’s testimony, and found the
testimony of Dr. Rekant, Claimant’s surgeon, to be more credible and persuasive
than that of Dr. Sattell. (WCJ Decisions, F.F. ¶¶7- 9.) Accordingly, the WCJ
concluded that Claimant sustained a central slip disruption to her right ring finger
on May 31, 2012 and reinjured that finger on September 14, 2013 and was entitled
to payment of reasonable and necessary medical expenses and disability benefits
with an appropriate offset for unemployment compensation benefits paid. (Id.,
Conclusion of Law (C.L.) ¶2, Order.)
             The WCJ determined that Claimant’s termination of employment was
not for bad faith conduct and found instead that Claimant “exhibited good faith in
all respects.” (Id., C.L. ¶3.) The WCJ explained her conclusion as follows:

             Claimant’s position was terminated through no fault of
             her own.      Claimant explained quite credibly the
             circumstances surrounding the suspension of her driver’s
             license. On both occasions when Employer notified her
             that the license was suspended, she immediately took

                                         6
             steps to rectify the situation.        Furthermore, the
             suspensions pertained to the same issue. Claimant paid a
             fine but was unaware she had to pay a reinstatement fee,
             and the notice was not sent to her correct address. Once
             Claimant realized the problem, she took the steps
             necessary to correct the situation.

(Id., F.F. ¶13.) The WCJ additionally granted Claimant’s Penalty Petition and
awarded a penalty of 10% of benefits from December 11, 2013 until the date of
decision on the basis that, while Employer clearly accepted the September 14,
2013 injury, no NTCP or NCP for this injury appears in the Bureau’s files or was
produced by the parties during litigation. (Id., F.F. ¶15, C.L. ¶5.)
             Employer appealed the two WCJ decisions to the Board, which issued
opinions and orders affirming the grant of the two Claim Petitions and reversing
the grant of the Penalty Petition. On the termination issue, the Board concluded
that, because the WCJ accepted Claimant’s testimony as credible and that
testimony showed that Claimant had no notice that her license was suspended and
took immediate efforts to rectify the situation when she learned her license was
suspended, Employer could not meet its burden of showing that Claimant’s
termination was the result of bad faith conduct. (Board Opinions at 8.) On the
Penalty Petition, the Board determined that the WCJ committed an error of law and
reversed the grant of this petition. While the Board recognized that a failure to file
an NCP or Notice of Compensation Denial within 21 days of receiving notice of an
injury can be cause for imposing a penalty, the Board concluded that there was
evidence in the record that Employer had issued a timely NTCP for the September
14, 2013 injury and that NTCP converted to an NCP. (Id. at 9-10.)




                                          7
               Employer filed petitions for review of both Board orders with this
Court.2 On appeal, Employer does not challenge that Claimant sustained two
work-related injuries on May 31, 2012 and September 14, 2013 but argues that
Claimant was not entitled to disability benefits after December 11, 2013 because
her employment was terminated for bad faith conduct unrelated to her injuries.
Employer’s two appeals were consolidated by an August 31, 2016 order of this
Court. In its petitions for review, Employer explained that it was not challenging
the reversal of the penalty award and that it had only filed a petition for review of
the Board’s order on the Penalty Petition docket because both WCJ and Board
decisions contain identical findings of fact and the WCJ and Board orders on both
the Claim Petitions and Penalty Petition dockets are identical.                   (Petitions for
Review ¶10, R.R. 381.)            Claimant did not file a cross-petition for review
challenging the Board’s reversal of the WCJ’s penalty award in her favor.3


2
  This Court’s review of an appeal from a determination by the Board is limited to determining
whether an error of law was committed, whether the WCJ’s necessary findings of fact are
supported by substantial evidence and whether Board procedures or constitutional rights were
violated. BJ’s Wholesale Club v. Workers’ Compensation Appeal Board (Pearson), 43 A.3d
559, 562 n.1 (Pa. Cmwlth. 2012).
3
  Though Claimant did not file a petition for review related to the Board’s decision on her
Penalty Petition, Claimant nevertheless argues in her brief to this Court that the Board’s reversal
of the penalty award was in error. Claimant’s failure to file a petition for review challenging the
Board’s reversal of the grant of the Penalty Petition constituted a waiver of that issue, and
Employer’s appeal of the Board order under the Penalty Petition docket number does not change
our conclusion. As this Court has stated, where both parties are aggrieved by a decision, they
must file cross-appeals of the tribunal’s decision; “[a]n aggrieved party may not preserve his
issues by allowing them to ride ‘piggyback’ into the administrative appellate tribunal or this
Court on another party’s appeal.” USX Corp. v. Workmen’s Compensation Appeal Board
(McDermott), 618 A.2d 1150, 1152 (Pa. Cmwlth. 1992); see also Appeal of the Municipality of
Penn Hills, 546 A.2d 50, 54 (Pa. 1988) (holding that the party who chooses to appeal chooses the
issues and whatever is not chosen is waived).


                                                8
                Under the Workers’ Compensation Act (Act),4 a claimant seeking
disability benefits must prove that she has suffered a disability caused by a work-
related incident. Lewis v. Workmen’s Compensation Appeal Board (Pittsburgh
Board of Education), 498 A.2d 800, 802 (Pa. 1985); Reyes v. Workers’
Compensation Appeal Board (AMTEC), 967 A.2d 1071, 1077 (Pa. Cmwlth. 2009)
(en banc). Disability, under the Act, requires not merely impairment, but loss of
earning power. Reyes, 967 A.2d at 1077; Albert Einstein Healthcare v. Workers’
Compensation Appeal Board (Stanford), 955 A.2d 478, 481 (Pa. Cmwlth. 2008).
“[A]lthough a claimant may suffer a work-related physical disability, it is only if
that physical disability occasions a loss of earnings that a worker will be ‘disabled’
under the meaning of the Act and will be entitled to receive compensation.” BJ’s
Wholesale Club v. Workers’ Compensation Appeal Board (Pearson), 43 A.3d 559,
563 (Pa. Cmwlth. 2012) (quoting Bissland v. Workmen’s Compensation Appeal
Board (Boyertown Auto Body Works), 638 A.2d 493, 495 (Pa. Cmwlth. 1994)).
                Because disability requires loss of earnings, a claimant is not entitled
to disability benefits where the claimant’s loss of earnings is a result of a discharge
for bad faith conduct that was committed by the claimant subsequent to the injury
or was not known to the employer until after the injury. Vista International Hotel
v. Workmen’s Compensation Appeal Board (Daniels), 742 A.2d 649, 656-58 (Pa.
1999); BJ’s Wholesale Club, 43 A.3d at 563. In Virgo v. Workers’ Compensation
Appeal Board (County of Lehigh-Cedarbrook), 890 A.2d 13 (Pa. Cmwlth. 2005),
this Court explained the bad faith standard as follows:

                [T]he stricter willful misconduct standard [applicable to
                unemployment compensation cases] is not the standard of

4
    Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1–1041.1, 2501–2708.


                                                9
            “bad faith” in the context [of] allocating fault in a
            workers’ compensation case. Nonetheless, some “bad
            faith” willful misconduct on the part of the claimant that
            caused the discharge has to be established or benefits will
            not be suspended or will be reinstated. If, for example, a
            claimant receives unsatisfactory performance evaluations
            based solely on an inability to perform despite good faith
            efforts to do so, bad faith on the part of the claimant has
            not been made out. Simply put, to make out “bad faith”
            or “fault on the part of a discharged claimant,” if an
            employer only shows that he or she “would if he or she
            could,” then “bad faith” is not shown and benefits should
            continue or be reinstated; but if an employer establishes
            that the claimant “could if he or she would, and didn’t,”
            “bad faith” is established and a claimant is not entitled to
            continuing benefits.

Id. at 19 (citations omitted); see also Shop Vac Corp. v. Workers’ Compensation
Appeal Board (Thomas), 929 A.2d 1236, 1240 (Pa. Cmwlth. 2007).
            The burden falls on the employer to show that the conduct for which
claimant was discharged amounts to bad faith on the part of the claimant. Vista
International Hotel, 742 A.2d at 657-58; Coyne v. Workers’ Compensation Appeal
Board (Villanova University and PMA Group), 942 A.2d 939, 945-46 (Pa.
Cmwlth. 2008). Whether the claimant’s actions constitute bad faith conduct is a
question of fact to be determined by the WCJ. BJ’s Wholesale Club, 43 A.3d at
564; Coyne, 942 A.2d at 946.
            Upon review, we conclude that under the findings of fact by the WCJ,
Employer did not meet its burden of showing that Claimant was discharged for bad
faith conduct. The WCJ, who has sole authority over issues of credibility of
witnesses, found Claimant credible and accepted her testimony in its entirety, and
this conclusion may not be revisited on appeal. Furnari v. Workers’ Compensation
Appeal Board (Temple Inland), 90 A.3d 53, 59-60, 70 (Pa. Cmwlth. 2014);
Stalworth v. Workers’ Compensation Appeal Board (County of Delaware), 815
                                        10
A.2d 23, 29 (Pa. Cmwlth. 2002). Claimant testified that she was unaware in
August 2013 that her license was suspended until a traffic stop and she had already
taken steps to have her license reinstated by the time she drove students to a New
Jersey amusement park on September 9, 2013. Claimant also testified that she
obtained confirmation that her license was reinstated and showed this
documentation to Employer. Similarly, according to her testimony, Claimant was
not aware that PennDOT had again suspended her license until Employer
performed a check on December 9, 2013. Claimant explained that when Employer
informed her that her license was suspended, she took immediate steps to have her
license reinstated and informed Employer on December 13, 2013 why her license
had been erroneously suspended, but Employer would not reverse its decision to
discharge her. Claimant’s testimony thus demonstrates that she was not aware on
either occasion that her license was suspended, that both suspensions were for
reasons outside of her control and that she took immediate action in both cases to
lift the suspension. We are satisfied that this evidence was sufficient to support the
WCJ’s conclusion that Claimant had not acted in bad faith.
             Employer argues that if this Court affirms the WCJ’s decision it
would create a “credible excuse” exception for a claimant’s bad faith that does not
exist in the case law. We disagree with Employer that the WCJ’s decision was
contrary to precedent applying the “bad faith” standard. Our cases do not deem
any violation of an employer’s policies or best interests that either occurred
subsequent to the injury or were not discovered until after the injury to disqualify a
claimant from receiving wage-loss disability benefits. Instead, our Supreme Court
has made clear that disability benefits may not be withheld for an injured employee
after discharge without some element of fault on behalf of the claimant in the


                                         11
events that lead to the discharge. See Vista International Hotel, 742 A.2d at 656-
59 (rejecting employer’s argument that fault is not relevant in determining whether
injured employee is entitled to disability benefits following discharge and holding
that claimant was entitled to total disability benefits unless employer showed that
claimant was discharged for bad faith conduct or that other suitable employment
was available); see also Virgo, 890 A.2d at 17 n.9. Thus, decisions of this Court
distinguish between conduct where a claimant “could if he or she would, and
didn’t,” which supports a finding of bad faith conduct on the part of the claimant,
and situations where the claimant “would if he or she could,” which does not arise
to the level of bad faith. Shop Vac Corp., 929 A.2d at 1240; Virgo, 890 A.2d at 19.
By accepting Claimant’s testimony that she was not aware of her license
suspensions, that the second suspension was the result of PennDOT’s error and that
she took prompt action to reinstate her license after both suspensions, the WCJ did
not err in holding that Claimant’s conduct leading to her discharge was not in bad
faith.
            Accordingly, the orders of the Board are affirmed.


                                      ____________________________________
                                      JAMES GARDNER COLINS, Senior Judge




                                        12
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Carson Valley School and Inservco      :
Insurance Services, Inc.,              :
                                       :
                  Petitioners          :
                                       :
            v.                         : No. 1159 C.D. 2016
                                       : No. 1160 C.D. 2016
Workers’ Compensation Appeal           :
Board (Estate of Ashley Conway),       :
                                       :
                  Respondent           :


                                    ORDER


            AND NOW, this 17th day of March, 2017, the orders of the Workers’
Compensation Appeal Board in the above-captioned matter are affirmed.


                                     ____________________________________
                                     JAMES GARDNER COLINS, Senior Judge
