               IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Thomas Kurpiewski,                                :
                               Petitioner         :
                                                  :
                        v.                        :    No. 158 C.D. 2018
                                                  :
Workers’ Compensation Appeal                      :
Board (Caretti, Inc.),                            :
                       Respondent                 :
                                                  :
Caretti, Inc.,                                    :
                               Petitioner         :
                                                  :
                        v.                        :    No. 194 C.D. 2018
                                                  :    Submitted: September 28, 2018
Workers’ Compensation Appeal                      :
Board (Kurpiewski),                               :
                      Respondent                  :


BEFORE:          HONORABLE MARY HANNAH LEAVITT, President Judge
                 HONORABLE RENÉE COHN JUBELIRER, Judge
                 HONORABLE ELLEN CEISLER, Judge


OPINION BY
JUDGE COHN JUBELIRER                                  FILED: January 18, 2019


       Presently before the Court are the cross-petitions for review from the Order
of the Workers’ Compensation Appeal Board (Board) filed by Thomas Kurpiewski
(Claimant) and Caretti, Inc. (Employer).1 Claimant petitions for review of the
Board’s Order that, in relevant part, modified a Workers’ Compensation Judge’s
(WCJ) decision awarding Claimant ongoing workers’ compensation (WC) benefits
to reflect an award of benefits for a closed period between June 21, 2012, and

       1
           The petitions for review were consolidated by this Court.
August 14, 2012, and directed the recalculation of Claimant’s average weekly
wage (AWW).           Employer petitions for review of the Board’s Order, which
reversed the WCJ’s decision denying Claimant’s Penalty Petition and awarded
Claimant a 10-percent penalty.


                                         I. Background
                                A.     Proceedings before the WCJ
      Claimant, a union bricklayer, worked for Employer on various job sites,
most recently in the Spring of 2012. In April 2012, while working for Employer,
Claimant broke out into a rash on various parts of his body. He left work on April
16, 2012, and did not return at the instruction of his physician, Joel Laury, M.D.
Dr. Laury diagnosed Claimant with allergic contact dermatitis arising from
Claimant’s long-term work exposure to chromium, which is found in bricks,
concrete, and mortar. On June 21, 2012, Claimant filed a Claim Petition and a
Penalty Petition, alleging, respectively, that he suffered the above injury and that
Employer violated the WC Act2 (Act) by not timely accepting or denying liability
for that injury. In addition to ongoing WC benefits and a penalty, Claimant sought
attorneys’ fees, alleging Employer’s contest became unreasonable following a
November 6, 2012 Independent Medical Examination (IME) that indicated
Claimant’s condition was work-related and he could not return to his position as a
bricklayer.     Employer filed answers denying the material allegations in the
Petitions.
      The Petitions were consolidated, and the WCJ held hearings, at which
Claimant testified as follows. Claimant began working as a bricklayer when he left

      2
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1 - 1041.4, 2501-2708.



                                                2
high school, approximately 18 years prior to the December 4, 2012 hearing.
(Reproduced Record (R.R.) at 21a.) Thus, he has worked as a bricklayer since
approximately 1994. Claimant first experienced a rash in 2007 while working as a
bricklayer for a different employer.        Claimant sought treatment with his
dermatologist in 2008, who did patch testing, which “revealed that Claimant was
allergic to nickel sulfate, potassium dichromate [(chromium)], balsam of Peru[,]
and cobalt dichloride.” (WCJ Decision, May 1, 2014, Finding of Fact (FOF) ¶ 14.)
When his position with that employer ended, Claimant began working for
Employer in 2009, but was subject to layoffs when Employer did not have work
for him.    (R.R. at 34a-35a.)   On his most recent layoff, Claimant did non-
bricklaying work for a different employer until Employer recalled him. (Id. at
44a.)
        While working as a bricklayer, Claimant continued to get the rash
intermittently, with the symptoms worsening with each break out. In April 2012,
while laying brick for Employer, he again developed a rash.        After seeking
treatment with Dr. Laury, Claimant informed Employer’s foreman (Foreman) that
his physician removed him from work due to the rash. Claimant did not recall
specifically what he told Foreman regarding the cause of the rash. (Id. at 43a,
46a.) He continued to treat with Dr. Laury and has not returned to work. Claimant
agreed that he was not working for another employer while working for Employer
in April 2012. (Id. at 35a.) Claimant received unemployment compensation
benefits when he stopped working in April 2012.
        Claimant presented the deposition of Dr. Laury, who is board-certified in
allergies/immunology and internal medicine and with whom Claimant initially
sought treatment for a rash in February 2009. Dr. Laury indicated that the medical



                                        3
records of Claimant’s treating dermatologist reflected that, per prior diagnostic
testing, Claimant had allergies to cobalt and chromium. (FOF ¶ 14; R.R. at 103a-
04a.) Dr. Laury explained that, “[a]s a bricklayer, Claimant was regularly exposed
to both cobalt and chromium in the course of [his] employment.” (FOF ¶ 14.)
After Dr. Laury treated Claimant with oral steroids, Claimant’s symptoms
improved and Claimant returned for treatment only as needed. Claimant returned
to Dr. Laury on April 19, 2012, with a rash on his forehead, hands, and legs.
Claimant told Dr. Laury that the rash went away when he was not working. Based
on the history provided by Claimant, Claimant’s medical records, the results of
Claimant’s diagnostic tests, and his physical examination of Claimant, Dr. Laury
opined “that Claimant’s symptoms were the result of occupational exposure” and
“diagnosed Claimant with allergic contact dermatitis as a result of occupational
exposure to chromium.” (Id. ¶ 15.) Dr. Laury recommended that Claimant not
return to work as a bricklayer, noting that Claimant’s condition was worsening and
he could not continue to take the prescribed systemic oral steroid without it having
long-term effects on Claimant’s health, some of which could be life threatening.
(R.R. at 106a-07a, 109a, 135a.) Dr. Laury acknowledged that, as of his August 14,
2012 examination, Claimant’s rash had “cleared up.” (Id. at 110a-11a.)
      Claimant also introduced the IME physician’s medical report, not to prove
that he suffered a work-related injury as set forth in that report, but to support his
claim that Employer’s contest became unreasonable in November 2012. After
performing the IME on November 6, 2012, the IME physician indicated in her
medical report that Claimant had “chromium induced occupational contact
dermatitis, chronic and severe.”      (FOF ¶ 16.)       The medical report stated,




                                          4
“Claimant’s allergy to chromates would be permanent and that ‘he absolutely
cannot have a job as a bricklayer ever again.’” (Id. (quoting R.R. at 175a).)
      Employer did not present any medical evidence, but did present Foreman’s
testimony. Foreman explained Claimant began working for Employer in October
2009, Claimant would be temporarily laid off when Employer had little work,
Claimant was eligible for unemployment compensation during these layoffs, and
Claimant remained Employer’s employee during these layoffs. (R.R. at 73a-75a.)
Foreman was Claimant’s supervisor and was aware Claimant had a rash. Claimant
informed him on April 16, 2012, that Claimant would not be returning to work
because of the rash issue, but he did not remember if Claimant stated that the rash
was work-related. Foreman received a text message from Claimant on April 20,
2012, in which Claimant again stated he was not able to return to work. When
Foreman subsequently spoke with Claimant, Claimant said “he was allergic to
‘most everything in the construction industry’ and would probably need to find a
different job.” (FOF ¶ 12 (quoting Hr’g Tr. at 14, R.R. at 71a).)
      Employer also presented evidence regarding Claimant’s wages with
Employer, which supported an AWW of $682.37 and a corresponding
compensation rate of $454.81. It also offered evidence of Claimant’s receipt of
unemployment compensation benefits in the net amount of $516 per week for
weeks ending June 9, 2012, through March 8, 2013.              Claimant challenged
Employer’s wage information by presenting, as evidence of his wages, copies of
his tax returns for the years 2010 and 2011, which included $43,630 from
Employer and $12,246 from a concurrent employer. Claimant also testified that, in
his most recent work for Employer, he was earning $30.90 per hour for a 40-hour




                                         5
work week, resulting in a weekly wage of $1236. The WCJ accepted Claimant’s
evidence and found that Claimant’s AWW was $1236.3
       After reviewing the evidence, the WCJ found Claimant’s testimony credible
and persuasive and found Foreman’s testimony credible on the issue of when
Employer received notice that Claimant’s injury was work related. The WCJ
credited Dr. Laury’s testimony, observing Dr. Laury is Claimant’s treating
physician and his opinions were supported by his multiple examinations of
Claimant, diagnostic testing, and the evidence as a whole. While the WCJ noted
the IME medical report was not offered or entered into evidence to prove that
Claimant suffered a work-related injury, but to support Claimant’s request for
unreasonable contest attorneys’ fees, the medical report “unequivocally relate[d]
Claimant’s condition to his employment.” (FOF ¶ 28.) Based on these findings,
the WCJ concluded Claimant met his burden of proof on the Claim Petition by
“establish[ing] the causal connection between Claimant’s employment and the
aggravation of Claimant’s preexisting dermatitis which resulted in [his] removal
from employment as a bricklayer as of April 19, 2012.”                        (WCJ Decision,
Conclusion of Law (COL) ¶ 2.) The WCJ further held Claimant’s “work-related
injury in the nature of allergic contact dermatitis” “rendered him incapable of
returning to work as a bricklayer,” and Employer did not present evidence that it
had work available that would not require Claimant to be exposed to chromium.
(Id. ¶ 3.) According to the WCJ, Claimant gave Employer timely notice of the


       3
         In finding that Claimant’s AWW was $1236, the WCJ apparently multiplied Claimant’s
most recent hourly wage by the number of hours Claimant was expected to work on the current
project for Employer. This would be an application of the formula set forth in Section 309(d.2)
of the Act, added by Section 5 of the Act of June 24, 1996, P.L. 350, 77 P.S. § 582(d.2), the only
subsection of Section 309 that utilizes this formula for calculating the AWW.



                                                6
work injury, having filed the Claim Petition within the required 120-day notice
period. Therefore, the WCJ granted the Claim Petition and directed Employer to
pay Claimant WC benefits of $824 per week, based on an AWW of $1236, from
April 16, 2012, forward with credit for the unemployment compensation benefits
Claimant received. (WCJ Order, April 28, 2014.) The WCJ denied the Penalty
Petition “[u]pon [his] review of the evidence of record in its entirety.”4 (Id.)


                      B.      The Board’s September 10, 2015 Opinion
       Both Employer and Claimant appealed to the Board.                   Employer first
challenged the WCJ’s award of ongoing benefits beginning April 16, 2012. It
asserted, relevant here, that Claimant did not give it notice within 21 days of the
injury; thus, his receipt of benefits could not begin until the date he gave notice.
The Board concluded a remand on this issue was necessary. It observed that
Section 311 of the Act, 77 P.S. § 631, requires a claimant to give notice of an
injury within 120 days and provides that unless a claimant gives notice within 21
days after the injury, no compensation is due until notice is given. The Board
noted a claimant’s compliance with these notice requirements was a question of
fact for the WCJ, but the WCJ did not make a finding regarding when Claimant
advised Employer that his rash was work related.                Accordingly, the Board
remanded for the WCJ to do so and, if necessary, adjust the date from whence
Claimant’s WC benefits should begin.



       4
         On the issue of attorneys’ fees, the WCJ concluded that, while Employer’s contest
began as reasonable, it became unreasonable as of November 6, 2012, and directed Employer to
pay Claimant’s counsel a quantum meruit fee for his work on the matter after that date.
Employer did not appeal that determination.



                                             7
      Employer further argued that Claimant had fully recovered from his work-
related aggravation of the preexisting dermatitis as of August 14, 2012, and,
therefore, ongoing benefits should not have been awarded. The Board agreed,
citing Bethlehem Steel Corporation v. Workers’ Compensation Appeal Board
(Baxter), 708 A.2d 801 (Pa. 1998). The Board held that, under Baxter,

      if exposure results in an ongoing disabling condition, benefits may
      continue; however, where no restrictions from the work-related injury
      exist, and only the threat of future recurrences prevents the claimant
      from performing [the] pre-injury job, the claimant no longer is
      entitled to benefits when his condition returns to baseline. Like the
      claimant in Baxter, Claimant’s injury was an aggravation injury and
      the medical evidence presented and accepted established that
      Claimant recovered from the work-related injury.

(Board Opinion (Op.) at 10.) Because Dr. Laury did not testify to any ongoing or
permanent work injury and agreed that Claimant had essentially recovered from
the rash as of August 14, 2012, the Board held that Claimant had returned to his
pre-injury baseline condition and his entitlement to benefits ended as of that date.
Accordingly, the Board modified the WCJ’s decision “to reflect a termination of
benefits as of August 14, 2012.” (Id. at 11.)
      Finally, Employer asserted the WCJ erred in finding that Claimant had
concurrent employment and increasing Claimant’s AWW based on that
employment. Employer argued that because Claimant testified that he did not
work for anyone else at the same time he was working for Employer, his AWW
should have been calculated using his wages from “the 4 completed 13-week
periods immediately preceding the date of injury.” (Id.) The Board agreed that the
WCJ’s finding that Claimant had “concurrent employment” was not supported by
Claimant’s credited testimony and Claimant could not “be deemed [as] hav[ing]



                                          8
had concurrent employers.” (Id. at 12.) The Board, therefore, vacated the WCJ’s
calculation and remanded for a new calculation of Claimant’s AWW and
corresponding compensation rate in accordance with Section 309 of the Act, 77
P.S. § 582.
      In his appeal, Claimant argued the WCJ erred in denying the Penalty
Petition. After reviewing the penalty provisions of the Act, Section 435 of the Act,
77 P.S. § 991,5 and the Act’s requirement that an employer timely investigate an
injury, Section 406.1(a) of the Act, 77 P.S. § 717.1(a),6 the Board observed that the
WCJ had summarily denied the Penalty Petition without discussion.                   Because
Section 422(a) of the Act, 77 P.S. § 834, required a reasoned decision on this issue,
the Board remanded for a determination that would satisfy the reasoned decision
requirements.


                               C.      The WCJ’s Remand Decision
      The WCJ issued a new decision addressing the issues remanded to him.
First, with regard to notice, the WCJ found it was undisputed that Claimant advised
Employer in April 2012 that he could not return to work due to his severe rash.
However, the WCJ found Claimant did not inform Employer that this condition
was related to his work with Employer at that time. Instead, the WCJ found
Claimant later informed Foreman that the rash was due to his “exposure to
materials in the construction industry.” (WCJ Remand Decision, Finding of Fact
(Remand FOF) ¶ 6.) The WCJ found that this statement did not place Employer on
notice that the rash was related to Claimant’s work for Employer because Claimant

      5
          Added by Section 3 of the Act of February 8, 1972, P.L. 25, as amended.
      6
          Added by Section 3 of the Act of February 8, 1972, P.L. 25, as amended.



                                               9
had worked for other employers in the construction industry. On this basis, the
WCJ found that, for the purpose of Section 311 of the Act, Employer received
notice of Claimant’s injury on June 21, 2012, the date Claimant filed the Claim
Petition.
      Second, with regard to Claimant’s AWW, the WCJ reviewed the evidence
regarding Claimant’s wages from the last 4 completed 13-week periods of
employment with Employer, without considering any alleged concurrent
employment. Based only on the evidence related to Claimant’s work for Employer
during those periods, the WCJ added Claimant’s highest three quarters and divided
that number by three, resulting in an AWW of $728.38 with a compensation rate of
$485.58.
      Finally, in addressing the Penalty Petition, the WCJ noted that Claimant bore
the burden of proving a violation of the Act and the asserted violation here was that
Employer failed to timely accept or deny liability for Claimant’s injury. The WCJ
held, however, that Employer’s obligation to do so arose only after it received
notice of the injury. Because notice was not received until Claimant filed the
Claim Petition in June 2012 and Employer filed a timely answer denying the
pertinent allegations and had Claimant submit to an IME, the WCJ concluded
Claimant did not establish Employer’s violation of the Act and denied the Penalty
Petition.


                      D.    The Board’s January 12, 2018 Opinion
      Claimant appealed the WCJ’s remand decision to the Board, arguing the
WCJ erred in terminating his benefits as of August 14, 2012, and in recalculating
Claimant’s AWW, because Claimant continued to disagree with the Board’s prior



                                         10
decision. Noting that the Board had addressed these issues in its prior opinion, the
Board declined to revisit those determinations, while acknowledging that Claimant
had preserved those issues for further appeal purposes.
      Claimant also challenged the WCJ’s conclusion that Employer did not
violate the Act by virtue of its late response and by not issuing a notice of
compensation payable (NCP) once the IME physician found that a work-related
injury had occurred.     The Board concluded that, pursuant to Section 406.1,
Employer was required to promptly investigate Claimant’s injury and begin
making payments “not later than the twenty-first day after [it] ha[d] notice or
knowledge of” Claimant’s disability, or, if it disputed the right to compensation, to
promptly notify Claimant of its decision. 77 P.S. § 717.1(a), (c); see also 34 Pa.
Code § 121.13. The failure of Employer to issue the appropriate document within
21 days of receiving notice of a work injury is a technical violation of the Act.
Johnstown Hous. Auth. v. Workers’ Comp. Appeal Bd. (Lewis), 865 A.2d 999,
1004 (Pa. Cmwlth. 2005). The Board found no authority to support the WCJ’s
conclusion that, because Employer filed an answer denying the Claim Petition’s
allegations, Employer was excused from its obligations under Section 406.1.
Although the amount of penalties is generally within the discretion of the WCJ, the
Board found a 10-percent penalty was, as a matter of law, appropriate under
Section 435(d) due to Employer’s technical violation of the Act. Accordingly, the
Board reversed the WCJ’s denial of the Penalty Petition and awarded Claimant a
10-percent penalty, and reaffirmed its prior determinations regarding the
termination of Claimant’s benefits and calculation of Claimant’s AWW.




                                         11
       Both Claimant and Employer petition this Court for review.7

                                   II. Appeal to this Court
       Claimant raises two arguments before this Court. First, he argues his WC
benefits should not have been terminated as of August 14, 2012, because he
established his entitlement to ongoing WC benefits notwithstanding the cessation
of the symptoms associated with his work-related chromium allergy. Second, he
asserts his AWW was miscalculated and that wages from his work with a different
employer while he was laid off should have been considered concurrent
employment in order to reflect his economic reality.                   Employer raises one
argument, which is that the amount of a penalty is a matter for the WCJ and the
Board’s sua sponte imposition of the 10-percent penalty improperly infringed upon
the WCJ’s discretion.


                             A. The Termination of Claimant’s Benefits
                                      1.     The Parties’ Arguments
       Claimant argues the Board erred in terminating his benefits as of August 14,
2012, because he did not suffer from a preexisting condition and had no work-
related medical restrictions at the time he developed his chromium allergy. Rather,
he maintains, the medical evidence establishes that his underlying allergy to
chromium was the result of his prolonged exposure to that substance in the course
and scope of his work, and this allergy, which manifests as contact dermatitis,


       7
          This Court’s “review is limited to determining whether constitutional rights were
violated, whether the adjudication is in accordance with the law[,] or whether necessary findings
of fact are supported by substantial evidence.” City of Phila. v. Workers’ Comp. Appeal Bd.
(Sherlock), 934 A.2d 156, 159 n.5 (Pa. Cmwlth. 2007).



                                               12
prevents him from ever working as a bricklayer again. Claimant argues that Dr.
Laury and the IME physician both opined that he could never return to work as a
bricklayer due to the risk of chromium exposure, and, therefore, he has suffered a
loss of earnings due to his work-related injury. Although his allergy initially
manifested during his work for a previous employer, he was able to continue
working as long as he wore gloves and other safety equipment. However, during
his time working for Employer, his injury progressed and he is no longer able to
work at all. The fact that he is asymptomatic when he is not exposed to chromium
does not preclude the receipt of ongoing WC benefits because his condition will
recur, and continue to become more dangerous, when he is again exposed at work.
In other words, according to Claimant, his work injury has become disabling
because he can now no longer perform the job that he had been able to perform
when he started his employment with Employer. Thus, he has not returned to the
condition he was in when he began working for Employer, and he should not have
to continue to expose himself to a substance that is toxic to him, in order to be
eligible for benefits. Claimant argues that our Supreme Court’s opinions in Lash v.
Workmen’s Compensation Appeal Board (General Battery Corporation), 420 A.2d
1325 (Pa. 1980), and Farquhar v. Workmen’s Compensation Appeal Board
(Corning Glass Works), 528 A.2d 580 (Pa. 1987) (plurality), support his
entitlement to ongoing benefits.
      Employer responds that Claimant was no longer eligible for WC benefits
because his injury was a work-related aggravation of a preexisting condition,
which had resolved as of August 14, 2012. Employer argues Claimant’s chromium
allergy, diagnosed in 2008, is a preexisting condition that was not caused by his
work for Employer, which did not begin until 2009. It began when he worked for



                                        13
a previous employer. The aggravation of this work injury he experienced while
working for Employer was resolved, and he returned to his baseline condition on
August 14, 2012, when he stopped working. Then, the compensable injury ended,
and his entitlement to WC benefits ceased.                Here, Claimant’s work-related
condition was caused by his work for a previous employer. Therefore, the cases
that Claimant relies upon are inapplicable, because in those cases, the condition
was caused by the claimants’ employment with the employer against whom the
claims were being filed.          Employer argues the Board correctly terminated
Claimant’s benefits based on Baxter as of August 14, 2012.8

                                             2.     Discussion
       In a claim petition proceeding, the claimant bears the burden of establishing
all of the elements necessary to support an award of WC benefits, including the
existence of an injury and disability, and a causal relationship between the injury
and the claimant’s work.          Giant Eagle, Inc. v. Workers’ Comp. Appeal Bd.
(Thomas), 725 A.2d 873, 876 (Pa. Cmwlth. 1999).                   Disability is the loss of
earnings or earning power that is caused by a work-related injury. Sch. Dist. of
Phila. v. Workers’ Comp. Appeal Bd. (Lanier), 727 A.2d 1171, 1172 (Pa. Cmwlth.
1999). The burden remains on claimants to show that their work-related injury
continues to cause disability throughout the pendency of the claim proceeding.
Somerset Welding & Steel v. Workmen’s Comp. Appeal Bd. (Lee), 650 A.2d 114,

       8
         Employer also argues Dr. Laury’s testimony indicates that Claimant was exposed to an
allergen related to the refinishing of the floor in Claimant’s home and that this was a cause of
Claimant’s rash. (R.R. at 124a-26a.) However, Dr. Laury explained that, even if there was
exposure at Claimant’s home, it was short lived and the work exposure was more of a substantial
or major factor because Claimant’s symptoms improved after he left work. (Id. at 124a, 126a,
135a.)



                                              14
119 (Pa. Cmwlth. 1994). The “WCJ is authorized, when considering a claim
petition, to award compensation for a work-related injury, and, in addition, to
terminate benefits as of the date the disability ceased, . . . if the claimant has not
carried [his or her] burden of proof to establish a continuing disability.” Ohm v.
Workmen’s Comp. Appeal Bd. (Caloric Corp.), 663 A.2d 883, 886 (Pa. Cmwlth.
1995).
      Relevant here, claimants may be considered disabled by a work-related
injury despite the resolution of their symptoms “if there is evidence that [the
symptoms] are likely to recur once [they] return[] to work.” Schrader Bellows
Pneumatics, Div. of Parker-Hannifin Corp. v. Workers’ Comp. Appeal Bd. (Earle),
711 A.2d 578, 581 (Pa. Cmwlth. 1998). Where claimants “establish that they [are]
unfit or unable to perform their duties when they return[] to work” by unequivocal
medical testimony, ongoing disability can be established. Id. However, a mere
“possibility of a future recurrence does not constitute a compensable disability.”
Swartz v. Workmen’s Comp. Appeal Bd. (Dutch Pantry Rest.), 543 A.2d 201, 204
(Pa. Cmwlth. 1988).
      Claimant contends that he is similar to the claimants in Lash, who, when
they became “lead absorbers,” meaning that they absorbed lead into their blood at
abnormally high rates which made future exposures to lead hazardous, were
reassigned to lower paying, non-lead handling positions by the employer. 420
A.2d at 1325. Although the claimants’ health had not yet deteriorated to advanced
lead poisoning, the Supreme Court held they did not have to work until they
became ill in order to establish a compensable injury because the evidence
established that their becoming “lead absorbers” was a direct result of their work
and future exposure to lead would be perilous to their health. Id. at 1326. In



                                         15
rejecting the employer’s argument that the claimants were not yet eligible for WC
benefits, our Supreme Court explained “[i]t would be barbaric to require . . .
employees to continue in a position where [they are] exposed to a toxic substance
until [they are] so ill that [they] physically [are] incapable of performing [their]
job.” Id. at 1327.
      Claimant also contends that, even though he is not currently exhibiting
symptoms from his work-related condition, he is entitled to ongoing benefits under
the Supreme Court’s reasoning in Farquhar, because those symptoms will recur
and become increasingly more dangerous to his health if he returns to his pre-
injury duties. The claimant in Farquhar worked as a screen maker and developed,
in the course of her employment, effort thrombosis (blood clot) resulting in her
hospitalization and inability to perform her work duties for a period. 528 A.2d at
582. After she received WC benefits for that injury, she returned to work at the
same position and experienced a flare up of her thrombosis.         The claimant’s
physician told her not to perform the strenuous work duties again and that she was
permanently unfit to perform those duties. Following her discharge for refusing to
follow the employer’s directive that she perform those strenuous duties, the
claimant sought the reinstatement of her WC benefits. The medical evidence
established that the claimant should never perform her work duties again and, to do
so, “would expose her to great risk of another, potentially more dangerous
thrombosis attack” and was akin to “playing Russian Roulette.”          Id. at 583.
Because the claimant was not exhibiting symptoms at the time she sought
reinstatement, the WCJ denied reinstatement, which the Board and this Court
affirmed. On further appeal, the Supreme Court reversed, observing that “the
conclusion of the lower tribunals that, because [the claimant’s] symptoms had



                                        16
disappeared . . . and her condition had ‘normalized,’ she was not totally disabled
and could not, therefore, recover compensation” was “absurd[] and fl[ew] in the
face of the substantive law.” Id. at 587 (citing Lash, 420 A.2d 1326-27). Noting
that due to the nature of the claimant’s condition, “the consequences threatened to
be more severe if she were to experience another episode,” the Supreme Court held
that “[i]t [was] inexplicable that the lower tribunals would deny her compensation
simply because her symptoms were not currently manifesting . . . .” Id. at 588.
      We agree with Claimant that his situation is similar to these cases where,
although the work-related injury became asymptomatic when the claimants were
not working, ongoing benefits were awarded because their injuries would recur
upon the claimants’ return to work. Had Claimant worked just for Employer
during his bricklaying career, it would be clear that Claimant’s work-related injury
would be compensable. Such a result would be consistent with other cases that
followed Lash and Farquhar.        For example, in Henry Paul Cadillac, Inc. v.
Workmen’s Compensation Appeal Board (Stephens), 496 A.2d 1364, 1366 (Pa.
Cmwlth. 1985), the claimant was entitled to ongoing benefits where his physician
testified that the claimant had become sensitized to particular allergens over his
years of work such that the physician did not “think [the claimant] can do it
anymore, because the least exposure now that he has, even if it’s minimal, he’s
probably going to break out.” Similarly, in Schrader Bellows, the claimant was
entitled to ongoing WC benefits where he suffered, over numerous years, multiple
incidents of contact dermatitis due to the coolants used by the employer. 711 A.2d
at 579-80. In support of an award of ongoing benefits, the claimant’s physician
testified that, due to the airborne nature of the coolants, “regardless of where in the
plant or which type of position [the e]mployer would provide, [the c]laimant will



                                          17
continue to experience the dermatitis as long as he is working at [the e]mployer’s
facility.” Id. at 580.
      Employer argues, and the Board agreed, that Claimant’s situation is more
like the claimant’s aggravation of a preexisting, non-work-related condition in
Baxter. In Baxter, the claimant had suffered from asthma since childhood, which
was aggravated by his exposure to paint fumes at work. 708 A.2d at 801. This
aggravation, however, did not result in any permanent injury to the claimant. The
employer paid for the time the claimant was unable to work due to the aggravation,
but the claimant did not return to his pre-injury position at his physician’s
recommendation.      The claimant’s physician testified that the claimant’s lung
functions had returned to normal, but that his severe non-work-related asthma
placed him at risk of future exacerbation of that condition if he returned to work.
The physician further explained that the restrictions on the claimant’s ability to
work in a dusty environment “had nothing to do with [the claimant’s] actual
employment at [the employer] . . . . [and] would have been placed on [the
c]laimant whether or not he ever worked at [the employer] or had the episodes of
exacerbation of his preexisting asthma . . . .”      Id. at 802-03 (emphasis and
quotation marks omitted). The referee granted the claim petition, and both the
Board and this Court affirmed.
      The employer appealed to the Supreme Court, which reversed. It held that
the claimant had not established his eligibility for ongoing benefits because he had
fully recovered from the work-related aggravation of his preexisting, non-work-
related asthma.     The Supreme Court observed that the underlying condition
aggravated in Baxter was preexisting and not work-related, and not like the
residual work-related injuries that had never resolved in Lash and Farquhar. The



                                        18
Court explained that “[t]he claimant in Farquhar continued to suffer from
thrombosis which was caused by her employment; [and] the Lash claimants
continued to suffer from lead absorption which was caused by their employment.”
Baxter, 708 A.2d at 804. And that, “[h]ad Baxter introduced medical evidence . . .
that his exposure to paint fumes at [work] had resulted in an ongoing condition that
affected his pulmonary capacity, Farquhar and Lash would be controlling.” Id.
However, his physician testified that there was “no evidence that the claimant had
sustained any continuing changes to his pulmonary capacity or in the functioning
of his lungs.” Id. (emphasis added). Because there had been no ongoing changes,
the Supreme Court held that once the claimant had fully recovered from the work-
related aggravation of his preexisting, non-work-related asthma and his condition
returned to its baseline, the claimant was ineligible for benefits because his
disability was no longer related to the conditions of his workplace. Id. To hold
otherwise, the Supreme Court reasoned, would “undermine[] the principles of the
[WC] Act [by] impos[ing] liability on an employer for the existence of a condition
present from childhood when no residual work-related injury is demonstrated.”
Id. (emphasis added).
      Unlike the claimant’s asthma in Baxter, which was not work-related but
developed while that claimant was a child, Claimant’s severe allergy to chromium
was caused by his long-term exposure to chromium working as a bricklayer. Thus,
Claimant has a work-related condition.       Because Claimant here worked as a
bricklayer for a prior employer, during which time his allergy manifested,
Employer argues that the allergy is a preexisting condition that merely was
aggravated by his work for Employer.         Employer argues Baxter applies and
Claimant should not receive ongoing benefits because Claimant, having become



                                        19
asymptomatic as of August 14, 2012, had returned to his baseline condition.
However, Claimant was able to perform the bricklaying job when he started
working for Employer. While he did have to use gloves, and eventually started
taking systemic steroids to control his symptoms, his condition has now progressed
and worsened such that it is not safe for him to continue to do so. (Dr. Laury’s
Dep. at 43, R.R. at 107a, 109a-10a, 135a.) Both Dr. Laury and the IME doctor
have credibly opined that Claimant has an allergy to chromium due to his long-
term work exposure to that substance, which the IME doctor described as “chronic
and severe” and “permanent,” and that “‘he absolutely cannot have a job as a
bricklayer ever again.’” (FOF ¶¶ 14-16 (quoting IME physician’s medical report at
2, R.R. at 175a); R.R. at 103a-04a, 113a-14a.) Dr. Laury agreed with the IME
doctor’s observations. (R.R. at 114a.) Under these circumstances, we cannot
conclude that Claimant’s condition has returned to its baseline.
      Claimant’s current restriction from working as a bricklayer is a result of his
continued exposure to chromium, which occurred while working for Employer.
That Claimant should receive ongoing benefits is, thus, consistent with our
precedent. For example, in Reinforced Molding v. Workers’ Compensation Appeal
Board (Haney), 717 A.2d 1096, 1100-01 (Pa. Cmwlth. 1998), the claimant, as part
of his work duties, was exposed to styrene, which aggravated a preexisting, non-
work-related lung condition and caused the claimant to develop asthma. The WCJ
found that the compensable work-related injury was the aggravation caused by the
claimant’s work exposure to styrene, which rendered him incapable of performing
his work duties.    Id. at 1099.    There was no testimony that the claimant’s
restrictions would have been imposed had he not worked for his present employer
and developed the styrene sensitization and asthma that aggravated the claimant’s



                                         20
underlying lung condition. Id. at 1102 n.4. Because the medical evidence in
Haney established that the claimant “should never return to his time of injury job
which would expose him to styrene lest he suffer renewed aggravation,” we
affirmed, holding the claimant bore his burden of proving that he was disabled
from performing that job and was eligible for ongoing benefits. 717 A.2d at 1101.
See also Bethlehem Steel Corp. v. Workmen’s Comp. Appeal Bd. (Boles), 713 A.2d
1116, 1117 (Pa. 1998) (per curiam order) (affirming determination that where a
work-related aggravation continued to affect the claimant’s pulmonary function, an
award of ongoing benefits was appropriate); accord McCabe v. Workers’ Comp.
Appeal Bd. (Dep’t of Revenue), 738 A.2d 503, 507 (Pa. Cmwlth. 1999) (remanding
for a determination as to whether the restrictions placed upon the claimant were
causally related to the preexisting, non-work-related asthma, or the work-related
aggravation of her underlying asthma due to exposure to cigarette smoke at work).9
       Claimant’s situation here is similar to Little v. Workers’ Compensation
Appeal Board (Select Specialty Hospital), 113 A.3d 1 (Pa. Cmwlth. 2015), a recent
case. There, the claimant, who had no preexisting asthmatic condition or work-
related medical restrictions, was exposed multiple times to a chemical used by her
employer causing her to develop a sensitivity to that chemical and occupationally
induced asthma. Id. at 2-3, 5. Although granting her benefits for a closed period,


       9
         On remand, the WCJ in McCabe accepted additional medical evidence from both the
employer and the claimant. The WCJ credited the employer’s evidence establishing that the
claimant had fully recovered from the temporary work-related aggravation of her underlying
asthmatic condition, she suffered from no residual physical injuries as a result of her work
exposure to cigarette smoke, and the restrictions imposed were not “causally related to her prior
exposures at work.” McCabe v. Workers’ Comp. Appeal Bd. (Dep’t of Revenue), 806 A.2d 512,
515 (Pa. Cmwlth. 2002). Based on that evidence, the WCJ denied the claim for ongoing benefits
based on Baxter, and both the Board and this Court affirmed. Id. at 515, 517.



                                               21
the WCJ terminated them based on an IME physician’s testimony that the claimant
had “fully recovered with no residual disability or pulmonary impairment.” Id. at
3. On appeal, the Board affirmed the denial, but this Court reversed. Because the
claimant did not have a preexisting asthmatic condition or work-related medical
restrictions prior to her work injury, the claimant’s “baseline condition materially
differed” before and after her cumulative workplace exposure to the chemical. Id.
at 7. This change, the medical experts agreed, constituted a “residual medical
condition[]” that prevented the claimant from returning to her pre-injury position.
Id. at 8. As in Little, Claimant’s baseline condition materially differed between
when he started working for Employer and when, due to his ongoing exposure to
chromium, his work-related condition became so severe that he could no longer be
exposed to that material without endangering his health.                     It was Claimant’s
exposure to chromium while working for Employer, and the resulting aggravation
of his work-related chromium sensitivity, that have rendered him incapable of
performing his work duties.10 Claimant has, therefore, satisfied his burden of
proving that, notwithstanding his current lack of symptoms or need for treatment,
he is disabled from performing his job as a bricklayer for Employer, or anyone
else, and is eligible for ongoing benefits.




       10
           Holding otherwise would require claimants, particularly those who, due to the nature of
their work in the unionized trades, may work for multiple employers over the course of their
working life, “to continue in a position where [they are] exposed to a toxic substance until [they
are] so ill that [they are] physically . . . incapable of performing [their] job.” Lash, 420 A.2d at
1327.



                                                22
                            B. The Calculation of Claimant’s AWW
                                  1.   The Parties’ Arguments
      Claimant next argues the Board erred in vacating the WCJ’s initial
calculation of his AWW. He claims his AWW should have been calculated using
Section 309(d.1) of the Act because he was not an ongoing employee of Employer
due to his being laid off and obtaining work with another employer during the year
prior to his injury, and he did not work 3 consecutive periods of 13 calendar
weeks.11 He argues the Supreme Court’s decision in Reifsnyder v. Workers’
Compensation Appeal Board (Dana Corporation), 883 A.2d 537 (Pa. 2005),
should not apply because the claimant in that case was a long-term, continuous
employee of the employer subject to a collective bargaining agreement (CBA) who
had periods of layoffs during which the claimant did not work for other employers.
In contrast, here, there is no CBA and Employer does not deny he worked for other
companies during layoff periods. Applying Reifsnyder, Claimant asserts, would be
contrary to the purpose of the Act because the resulting calculation would not be
an accurate measure of his future wage loss caused by his work injury as it does
not recognize “the economic reality” of his recent pre-injury earning experience.
Triangle Bldg. Ctr. v. Workers’ Comp. Appeal Bd. (Linch), 746 A.2d 1111, 1112
(Pa. 2000). Claimant also argues that pursuant to Section 309(e), his AWW should
have included his wages from the “concurrent” employment in which he engaged
during his layoffs from Employer.




      11
         Using this calculation would result in an AWW of $1234.04 and a compensation rate
of $822.69.



                                           23
        Employer replies12 that it and Claimant had a continuing employment
relationship between October 2009 and April 2012, and, therefore, the WCJ’s
calculation of Claimant’s AWW using Section 309(d) on remand is consistent with
the Supreme Court’s decision in Reifsnyder.                 Employer further asserts that
including earnings Claimant received from unemployment or a second employer
during his layoffs is not necessary to ensure an accurate reflection of Claimant’s
earnings history while he maintained continuous employment with Employer
during the 4, 13-week periods immediately preceding the April 2012 work injury.
Employer also contends that the WCJ correctly calculated Claimant’s AWW
without considering any concurrent employment because Claimant testified he was
not working for another employer at the time he sustained the work injury in April
2012.

                                         2.    Discussion
                  a.      Which Subsection applies to calculate Claimant’s AWW?
        Subsections 309(d), (d.1), and (d.2),13 77 P.S. § 582(d), (d.1), (d.2), describe
the various methods of calculating an AWW where wages are not fixed by the
week, month, or year. Those statutory provisions state:



        12
           Employer also argues Claimant waived his arguments regarding the calculation of his
AWW because he did not include them in his Petition for Review. Pennsylvania Rule of
Appellate Procedure 1513, Pa.R.A.P. 1513; Tyler v. Unemployment Comp. Bd. of Review, 591
A.2d 1164, 1168 (Pa. Cmwlth. 1991). However, Rule 1513 was amended in 2014 to state that,
while an appellate jurisdiction petition for review should include a general statement of a
petitioner’s objections, “the omission of an issue from the statement shall not be the basis for a
finding of waiver if the court is able to address the issue based on the certified record.”
Pa.R.A.P. 1513(d)(5). As we are able to address this issue based on the certified record,
Claimant’s arguments are not waived.
        13
           Subsections (d.1) and (d.2) were added by Section 5 of the Act of June 24, 1996, P.L.
350, 77 P.S. § 582(d.1), (d.2).



                                               24
      (d) If at the time of the injury the wages are fixed by any manner not
      enumerated in clause (a), (b) or (c), the average weekly wage shall be
      calculated by dividing by thirteen the total wages earned in the
      employ of the employer in each of the highest three of the last four
      consecutive periods of thirteen calendar weeks in the fifty-two weeks
      immediately preceding the injury and by averaging the total amounts
      earned during these three periods.

      (d.1) If the employe has not been employed by the employer for at
      least three consecutive periods of thirteen calendar weeks in the fifty-
      two weeks immediately preceding the injury, the average weekly
      wage shall be calculated by dividing by thirteen the total wages
      earned in the employ of the employer for any completed period of
      thirteen calendar weeks immediately preceding the injury and by
      averaging the total amounts earned during such periods.

      (d.2) If the employe has worked less than a complete period of
      thirteen calendar weeks and does not have fixed weekly wages, the
      average weekly wage shall be the hourly wage rate multiplied by the
      number of hours the employe was expected to work per week under
      the terms of employment.

77 P.S. § 582(d), (d.1), (d.2).   We are cognizant that “the overall legislative
purpose of Section 309 [is] to provide for an accurate measurement of the AWW.”
Reifsnyder, 883 A.2d at 545 (citing Hannaberry HVAC v. Workers’ Comp. Appeal
Bd. (Snyder, Jr.), 834 A.2d 524, 533-34 (Pa. 2003)). The proper manner of
calculating an AWW is a question of law subject to plenary review. Id. at 541.
      In Reifsnyder, the Supreme Court addressed how to calculate a claimant’s
AWW where the claimant had “work-related layoffs for business/economic
reasons in the relevant look-back period.” Id. at 539. This work scenario, the
Court observed, was not specifically addressed by the statutory language, but
explained that

      Section 309(d) governs employees with the longest work/employment
      histories-i.e., employees who have been employed for at least four
      consecutive periods of thirteen calendar weeks. Subsections (d.1) and


                                        25
      (d.2) address progressively shorter employment relationships:
      (d.1) governs employees employed for at least one, but less than three
      consecutive periods of thirteen calendar weeks; while (d.2) addresses
      cases of recent hires, i.e., employees who worked less than a single
      complete period of thirteen calendar weeks at the time they suffered a
      work injury.

Id. at 546. It further described subsections (d) and (d.1) as “includ[ing] look-back
periods encompassing the preceding [52] weeks, in search of ‘completed’ [13]-
week periods.” Id. Therefore, Section 309(d) would apply to any “long-term
employment relationship” even when that “relationship happens to involve periods
with a ‘work’ cessation,” i.e., a layoff. Id. at 547. The Court further observed

      the general rule set forth in Section 309(d) does not speak in terms of
      the continuity of “work,” but rather, the continuity of the
      “employment” relationship. The fact that [the c]laimants were not
      “working” during the periods when they were laid off does not mean
      that their long-term “employment” relationship was severed.

Id. Because the employment relationship was maintained during layoff periods,
the claimants there “had a long-term employment relationship by which their
actual history of earnings and earning capacity could be measured.” Id. Section
309(d) applied “to capture that entire relevant period.” Id.
      Here, Claimant was employed by Employer since October 2009, subject to
certain periods of layoff followed by a return to work for Employer. That he was
laid off from his work with Employer during that period and worked for another
employer does not mean the employment relationship was not maintained. See
Elliot Turbomachinery Co. v. Workers’ Comp. Appeal Bd. (Sandy), 898 A.2d 640,
648 (Pa. Cmwlth. 2006) (stating “[t]he term ‘employ’ or ‘employed’ [as used in
Section 309(d)] is not limited to actual days an employee performs work, but
encompasses the period of time that an employment relationship is maintained


                                         26
between the parties”). Claimant acknowledges that Employer was aware that he
worked for a different employer while he was laid off, but Employer still recalled
him to work. This is different than the employer’s policy in Janson v. Workers’
Compensation Appeal Board (EM Force, Inc.), 49 A.3d 458, 459-60 (Pa. Cmwlth.
2012), where, if an employee obtained alternative employment during a layoff, the
policy provided that the employment relationship ended and required the employee
to reapply for work.14 This continued employment relationship, which included a
history of layoff periods, is similar to that in Reifsnyder. Section 309(d) thus
applies, and Claimant’s earning capacity was appropriately measured by using the
highest 3 of the last 4 consecutive periods of 13 calendar weeks in the year
immediately preceding Claimant’s work injury, which represented his “actual
history of earnings.” Reifsnyder, 883 A.2d at 547. Because using Claimant’s
earnings history reflects the “economic reality of [his] recent pre-injury earning
experience,” Triangle Building Center, 746 A.2d at 1112, it is an accurate measure
of his earning capacity and there was no error in calculating Claimant’s AWW
using Section 309(d) of the Act.

                   b.      Should Claimant’s AWW include wages from his other
                                             employment?
       Section 309(e) provides, in relevant part, that “[w]here the employe is
working under concurrent contracts with two or more employers, his wages from
all such employers shall be considered as if earned from the employer liable for
compensation.” 77 P.S. § 582(e). However, for a claimant’s employment with a

       14
          In Janson, however, based on the credited testimony of the employer’s witness that the
employer was unaware that the claimant had found alternative employment during the layoff
period, the WCJ found that the employment relationship was maintained notwithstanding the
policy and the claimant obtaining alternate employment. 49 A.3d at 459-60, 463.



                                              27
second employer to qualify as “concurrent employment,” the claimant had to have
been working for both employers “at the time of the [work] injury.” Freeman v.
Workmen’s Comp. Appeal Bd. (C.J. Langenfelder & Son), 527 A.2d 1100, 1101-02
(Pa. Cmwlth. 1987) (emphasis in original). We have explained that “the General
Assembly’s use of the present tense [in Section 309(e)] negates any intention to
include within its ambit workers who have previously been employed by
concurrent employers.” Id. at 1101. Because Claimant testified that he worked
only for Employer in April 2012, the Board did not err in concluding that Claimant
could not be deemed as having concurrent employment at the time of his work
injury.


                                     C. Penalty Petition
      Employer appeals from the Board’s Order, arguing the Board erred in
reversing the WCJ’s determination that Claimant did not establish a violation of
the Act and in, sua sponte, awarding a 10-percent penalty. The decision to impose
a penalty falls within the discretion of the WCJ and, here, Employer asserts, the
WCJ found, based on the credible testimony of Foreman, that Employer’s timely
filed answer denying that Claimant suffered from a work-related injury and
promptly scheduled IME provided Claimant with notice that Employer was
denying his claim. According to Employer, issuing a Notice of Compensation
Denial (NCD), the lack of which the Board found was a “technical violation of the
Act,” would simply have reiterated what it stated in its timely answer.
(Employer’s Brief (Br.) at 23-24.) Based on these facts, Employer argues, the
WCJ exercised his discretion to determine that no penalty was warranted, and the
Board erred by usurping that discretion.



                                           28
       Claimant responds it is well-settled that an employer’s failure to timely issue
the appropriate WC Bureau document accepting or denying an alleged work injury
is a violation of the Act and should result in an award of penalties. Section 406.1
of the Act requires the issuance of such a document within 21 days of being
notified of a claimant’s injury or disability. 77 P.S. § 991; Brutico v. Workers’
Comp. Appeal Bd. (US Airways, Inc.), 866 A.2d 1152, 1155 (Pa. Cmwlth. 2004).
According to Claimant, Employer’s reasons for not complying with Section 406.1
are insufficient because Employer was fully aware of Claimant’s work-related
disability as of November 6, 2012, the date its IME physician indicated Claimant
suffered from a work-related injury and could not return to his pre-injury position.
Employer’s refusal to acknowledge its liability, Claimant maintains, continued for
months after the IME, and reflects Employer’s decision not to comply with the Act
notwithstanding it being apparent that Claimant had sustained a disabling work-
related injury. As such, Claimant argues, the Board’s decision to find a violation
of the Act and to award a penalty was not erroneous.
       Section 435(d)(i) of the Act allows for a penalty of up to 50 percent of the
compensation due to be assessed if an employer violates the Act or its
regulations.15 77 P.S. § 991(d)(i). In penalty petition proceedings, the claimant


       15
            Section 435(d)(i)-(iii) states, in its entirety:

       (d) The department, the board, or any court which may hear any proceedings
       brought under this act shall have the power to impose penalties as provided herein
       for violations of the provisions of this act or such rules and regulations or rules of
       procedure:

             (i) Employers and insurers may be penalized a sum not exceeding ten per
             centum of the amount awarded and interest accrued and payable:
             Provided, however, That such penalty may be increased to fifty per
(Footnote continued on next page…)


                                                     29
“bears the burden of proving a violation of the Act occurred” and, if met, the
burden “shifts to the employer to prove it did not violate the Act.” Dixon v.
Workers’ Comp. Appeal Bd. (Medrad, Inc.), 134 A.3d 518, 525 (Pa. Cmwlth.
2016) (quoting Gumm v. Workers’ Comp. Appeal Bd. (Steel), 942 A.2d 222, 232
(Pa. Cmwlth. 2008)).          “When a violation of the Act occurs, it is within the
discretion of the WCJ to impose penalties.” Jordan v. Workers’ Comp. Appeal Bd.
(Phila. Newspapers, Inc.), 921 A.2d 27, 41 (Pa. Cmwlth. 2007). The WCJ has the
discretion to assess a penalty and, if assessed, to determine the amount of the
penalty. Id. This discretion is not unfettered, Croman v. Workers’ Compensation
Appeal Board (Township of Marple), 706 A.2d 408, 410 (Pa. Cmwlth. 1998), and
“[a]n abuse of discretion is not merely an error of judgment but occurs, . . . , when
the law is misapplied in reaching a conclusion.” Westinghouse Elec. Corp. v.
Workers’ Comp. Appeal Bd. (Weaver), 823 A.2d 209, 213-14 (Pa. Cmwlth. 2003).
        The Board found that Employer’s failure to issue a document accepting or
denying Claimant’s injury as work-related violated Section 406.1(a), (c) of the Act.
Those provisions state, in relevant part:

_____________________________
(continued…)
             centum in cases of unreasonable or excessive delays. Such penalty shall
             be payable to the same persons to whom the compensation is payable.

                (ii) Any penalty or interest provided for anywhere in this act shall not be
                considered as compensation for the purposes of any limitation on the total
                amount of compensation payable which is set forth in this act.

                (iii) Claimants shall forfeit any interest that would normally be payable to
                them with respect to any period of unexcused delay which they have
                caused.

77 P.S. § 991(d)(i)-(iii).



                                                30
      (a) The employer and insurer shall promptly investigate each injury
      reported or known to the employer and shall proceed promptly to
      commence the payment of compensation due either pursuant to an
      agreement upon the compensation payable or a notice of
      compensation payable as provided in section 407 or pursuant to a
      notice of temporary compensation payable as set forth in subsection
      (d), on forms prescribed by the department and furnished by the
      insurer. The first installment of compensation shall be paid not later
      than the twenty-first day after the employer has notice or knowledge
      of the employe’s disability.
      ....
      (c) If the insurer controverts the right to compensation it shall
      promptly notify the employe or his dependent, on a form prescribed
      by the department, stating the grounds upon which the right to
      compensation is controverted and shall forthwith furnish a copy or
      copies to the department.

77 P.S. § 717.1(a), (c). “An employer violates Section 406.1 of the Act if it fails to
issue an NCP, an NCD, or a Notice of Temporary Compensation Payable . . .
within [21] days of receiving notice of a work-related injury” and “can be liable for
penalties for” not doing so. Coyne v. Workers’ Comp. Appeal Bd. (Villanova
Univ.), 942 A.2d 939, 951 (Pa. Cmwlth. 2008); Lemansky v. Workers’ Comp.
Appeal Bd. (Hagan Ice Cream Co.), 738 A.2d 498, 502 (Pa. Cmwlth. 1999)
(stating “the Act indicates that [an e]mployer does have an affirmative obligation
to accept or deny the injury as work-related within [21] days of notice”). This is
true even if the employer is actively contesting the claimant’s claim, “since
contesting a claim does not relieve an employer of its duty under” Section 406.1 of
the Act. Spangler v. Workmen’s Comp. Appeal Bd. (Ford), 602 A.2d 446, 448 (Pa.
Cmwlth. 1992); see also Croman, 706 A.2d at 410. However, where “there is a
violation of the Act, even an apparent violation, the imposition of a penalty is not
automatic.” Brutico, 866 A.2d at 1155-56 (second emphasis added).




                                         31
      Here, Employer did not issue an NCP or an NCD acknowledging or denying
Claimant’s injury as work-related and instead issued an answer to the Claim
Petition contesting Claimant’s claim.     The fact that Employer was actively
contesting that claim, however, did not relieve Employer from the requirements of
Section 406.1 of the Act, Spangler, 602 A.2d at 448, and its failure to comply with
those requirements is a technical violation of the Act, Coyne, 942 A.2d at 951.
Although the Board correctly held that the WCJ erred in not finding a violation of
the Act, not every violation of the Act requires, as a matter of law, the automatic
imposition of a penalty. Brutico, 866 A.2d at 1155. Rather, whether a penalty is
appropriate is at the discretion of the WCJ. Unfortunately, we must therefore
“remand . . . to the WCJ to take into consideration whether . . . penalties are
appropriate.”   Moore v. Workmen’s Comp. Appeal Bd. (Reading Paperboard
Corp.), 676 A.2d 690, 695 (Pa. Cmwlth. 1996). In doing so, we note that the
Board awarded a 10-percent penalty on an award of benefits for a closed period of
time. Having reversed the termination of Claimant’s benefits as of August 14,
2012, the WCJ will have to consider whether a technical violation of the Act
warrants the imposition of a penalty on what is now an award of ongoing benefits.


                                III.     Conclusion
      For the foregoing reasons, we find that Claimant is entitled to ongoing
benefits, and therefore we reverse that part of the Board’s Order affirming the
termination of Claimant’s WC benefits as of August 14, 2012. We affirm that part
of the Board’s Order affirming the calculation of Claimant’s AWW as $728.38,
and that part of the Board’s Order reversing the denial of the Penalty Petition.
However, we must vacate the award of a 10-percent penalty and remand the matter



                                        32
to allow the WCJ to exercise his discretion on whether to award a penalty based on
Employer’s technical violation of the Act.



                                      _____________________________________
                                      RENÉE COHN JUBELIRER, Judge




                                        33
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Thomas Kurpiewski,                        :
                          Petitioner      :
                                          :
                    v.                    :   No. 158 C.D. 2018
                                          :
Workers’ Compensation Appeal              :
Board (Caretti, Inc.),                    :
                       Respondent         :
                                          :
Caretti, Inc.,                            :
                          Petitioner      :
                                          :
                    v.                    :   No. 194 C.D. 2018
                                          :
Workers’ Compensation Appeal              :
Board (Kurpiewski),                       :
                      Respondent          :

                                       ORDER


       NOW, January 18, 2019, the Order of Workers’ Compensation Appeal
Board (Board) entered in the above-captioned matter is REVERSED to the extent
it affirmed the termination of Thomas Kurpiewski’s (Claimant) workers’
compensation benefits as of August 14, 2012, AFFIRMED to the extent it
affirmed the calculation of Claimant’s average weekly wage as $728.38, and
AFFIRMED to the extent it reversed the denial of Claimant’s Penalty Petition.
The imposition of a 10-percent penalty is VACATED, and the matter is
REMANDED for further proceedings consistent with the foregoing opinion.
       Jurisdiction relinquished.



                                        _____________________________________
                                        RENÉE COHN JUBELIRER, Judge
