                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Rick Gring,                                     :
                              Petitioner        :
                                                :
                      v.                        :
                                                :
Workers’ Compensation Appeal Board              :
(Industrial Services, Inc.),                    :   Nos. 1545 & 1546 C.D. 2016
                           Respondent           :   Submitted: February 17, 2017


BEFORE:        HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COVEY1                                             FILED: December 11, 2017


               Rick Gring (Claimant) petitions this Court for review of the Workers’
Compensation (WC) Appeal Board’s (Board) August 26, 2016 order affirming the
Workers’ Compensation Judge’s (WCJ) decision denying Claimant’s Petition to
Reinstate Benefits (Reinstatement Petition) and granting Industrial Services, Inc.’s
(Employer) Petition to Terminate Compensation Benefits (Termination Petition).
Claimant presents three issues for this Court’s review: (1) whether the WCJ erred by
denying Claimant’s Reinstatement Petition; (2) whether the WCJ erred by not
awarding Claimant litigation costs; and (3) whether the WCJ erred by not awarding
Claimant unreasonable contest attorney’s fees. After review, we affirm.
               On April 8, 2008 while working for Employer, Claimant was lifting a
beam to place it on a truck when he felt a crack in his right arm. On April 18, 2008,

      1
          This opinion was reassigned to the authoring judge on November 14, 2017.
Employer issued a Notice of Compensation Payable (NCP) accepting Claimant’s
work injury as a right arm bicep tendon tear. On November 10, 2008, the parties
entered into a Supplemental Agreement suspending Claimant’s WC benefits as of
November 3, 2008, due to his return to work without a loss of earnings.
            On July 21, 2010, Claimant sustained a second work-related injury when
he was using a ratchet strap to tie down a generator on a flatbed trailer.         On
September 16, 2010, Employer issued an NCP accepting Claimant’s work injury as a
right shoulder partial tear of the supraspinatus tendon. On May 17, 2011, Employer
issued a Notification of Suspension based upon Claimant’s return to work without a
loss of earnings. Claimant was laid off in February 2013 due to Employer closing its
facility.
            On November 4, 2014, Claimant filed a Reinstatement Petition alleging
that his July 21, 2010 work injury was once again causing him to have a loss of
earning power as of April 27, 2013. On April 7, 2015, Employer filed a Termination
Petition alleging Claimant was fully recovered from his April 8, 2008 work injury as
of September 9, 2014 or, alternatively, March 3, 2015. Employer specifically alleged
that Claimant’s medical expert, Raymond D. Dragann, D.O. (Dr. Dragann), opined
that Claimant was fully recovered from the 2008 work injury. On April 16, 2015,
Claimant filed an answer to the Termination Petition denying all material allegations.
            The WCJ held hearings on December 17, 2014, February 20 and May
13, 2015.   On September 11, 2015, the WCJ denied Claimant’s Reinstatement
Petition and granted Employer’s Termination Petition. The WCJ concluded that
Claimant failed to prove that his July 21, 2010 work injury was once again causing
him to experience a loss of earning power.        The WCJ further determined that
Employer had met its burden of proving that Claimant was fully recovered from his
April 8, 2008 work injury and terminated Claimant’s benefits for that injury.


                                          2
Claimant appealed to the Board. On August 26, 2016, the Board affirmed the WCJ’s
decision. Claimant appealed to this Court.2
              Claimant argues that his Reinstatement Petition should have been
granted because his 2010 work-related injury currently prevents his return to his time-
of-injury-job and, therefore, a loss of earnings capacity was established.                     We
disagree.
              This Court has explained:

              [A] claimant’s earning power is once again adversely
              affected by the work injury, where a claimant returns to
              work with restrictions related to the injury (a modified
              position), and is subsequently laid off, a claimant is entitled
              to the presumption that the loss of earning power is causally
              related to the work injury. Stated differently, when a
              claimant does not return to his pre-injury job, and is then
              laid off from the modified duty job, the law presumes the
              layoff and attendant loss of earnings is attributable to the
              continued injury, shifting the burden to an employer to
              rebut the presumption.
              Conversely, where a claimant returns to his pre-injury
              position, and works under a suspension without
              restrictions, and is then laid off, a claimant must
              affirmatively establish the work injury caused the loss of
              earnings.

Dougherty v. Workers’ Comp. Appeal Bd. (QVC, Inc.), 102 A.3d 591, 595 (Pa.
Cmwlth. 2014) (citations omitted; emphasis added).
              The law is well-established that neither the Board nor the Court may
reweigh the evidence or the WCJ’s credibility determinations.                  Sell v. Workers’
Comp. Appeal Bd. (LNP Eng’g), 771 A.2d 1246 (Pa. 2001).                         This Court has
continuously reaffirmed the principle:

       2
        “On review[,] this Court must determine whether constitutional rights were violated, errors
of law were committed, or necessary findings of fact were supported by substantial competent
evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d 598, 601 n.6
(Pa. Cmwlth. 2014). Claimant is only appealing from the denial of his Reinstatement Petition.
                                                3
             ‘[I]t is irrelevant whether the record contains evidence
             to support findings other than those made by the WCJ;
             the critical inquiry is whether there is evidence to support
             the findings actually made.’ [Minicozzi v. Workers’ Comp.
             Appeal Bd. (Indus. Metal Plating, Inc.), 873 A.2d 25, 29
             (Pa. Cmwlth. 2005)] (quoting [Del. Cty.] v. Workers’ Comp.
             Appeal Bd. (Baxter Coles), 808 A.2d 965, 969 (Pa. Cmwlth.
             2002)). We review the entire record to determine if it
             contains evidence a reasonable mind might find sufficient to
             support the WCJ’s findings. If the record contains such
             evidence, the findings must be upheld even though the
             record contains conflicting evidence.

Lahr Mech. v. Workers’ Comp. Appeal Bd. (Floyd), 933 A.2d 1095, 1101 (Pa.
Cmwlth. 2007) (citation omitted; emphasis added).
             Claimant maintains that the testimony of Dr. Dragann and David L.
Rubenstein, M.D. (Dr. Rubenstein) that as of September 9, 2014 and March 16, 2015,
respectively, Claimant had restrictions when he returned to work; and Claimant’s
testimony that he could not do his job without help, implies that Claimant was
performing a modified position when he returned to work. However, the facts as
found by the WCJ do not support this implication.
             Here, the WCJ specifically found:

             With respect to the 2010 shoulder injury, . . . there is no
             dispute that when Claimant returned to work during May
             2011 as a truck driver, [h]is pre-injury title, he was released
             by his treating doctor to perform his regular[-]duty work
             and there were no limitations of any kind placed upon
             Claimant’s work duties by his doctor.

WCJ Dec. at 13-14.        This finding is supported by Dr. Dragann’s testimony.
Specifically, Dr. Dragann testified:

             Q So after [Claimant] was released in November of 2008,
             you saw him on January of 2009, and at that time you
             indicated he could continue with full[-]duty work; correct?
             A Which was that date?


                                           4
           Q Let me show you your note, your office visit report from
           January 28th of 2008 following the January 27 – I’m sorry,
           2009, following a January 27th office visit.
           A Yes.
           Q Okay. And at that time, again, you indicated he could
           go back to full duty work[?]
           A Yes.

Reproduced Record (R.R.) at 122a (emphasis added). Dr. Dragann continued:

           Q And then you saw [Claimant] about a week later on May
           the 3rd of 2011, and at that time you issued a Disability
           Certificate indicating he could return to his regular[-]duty
           work on May 17 of 2011; correct?
           A Yes.
           Q I’m showing you a . . . copy of the Disability Certificate
           of May 3rd, 2011, correct, Doctor?
           A Yes.
           Q Again, we can agree there are no limitations of any kind
           placed upon his work duties in that restriction or in that
           Disability Certificate; correct?
           A Correct.
           Q And is this a standard form that your office has available
           to generate from the computer for your ease and checking
           boxes to fill these things out quicker?
           A Yes.
           Q So it calls your attention to the areas of concern that you
           might have about releasing him to return to work following
           the types of injuries that he’s had; correct?
           A Yes.
           Q And in scanning the available choices, there was nothing
           that jumped out to you as an area of concern to you;
           correct?
           A No, we released him to full duty.
                                        5
            Q And your office notes don’t indicate that he objected to
            the full[-]duty release at that time or indicated that he had
            concerns about what he could or could not do at work; is
            that correct?
            A Correct.

R.R. at 124a-125a (emphasis added).
            The WCJ also found “that Claimant was actually performing his job as a
truck driver for Employer without any medical care or treatment from December
2011, through the time he was last employed by Employer.” WCJ Dec. at 14. This
finding is supported by the testimony of Dr. Dragann, see R.R. at 115a (wherein Dr.
Dragann confirmed that he did not see Claimant from December 2011 until
September 9, 2014), and Dr. Rubenstein. See R.R. at 208a (wherein Dr. Rubenstein
testified the medical records he reviewed stopped in December 2011 and started again
in 2014 when Dr. Dragann saw Claimant). Indeed, Dr. Rubenstein related:

            [Claimant] told me that he went back after his rotator cuff
            surgery about eight months or so post-op; maybe he went
            back a little bit too quick. But basically he went back to the
            same job, pretty much the exact same job without
            restriction. He was working full duty when the plant
            shut down and had it not shut down he advised me he
            would still be working in the same capacity as to
            whatever he was doing before.

R.R. at 209a-210a (emphasis added).
            Finally, the WCJ expounded:

            [The WCJ] found, as a fact, that Claimant’s treating doctor
            had released him to regular[-]duty work without
            restrictions.   [Claimant’s] doctor was well aware of
            Claimant’s job duties having had discussed the same with
            Claimant and the doctor testified that he took into
            consideration those job duties when he authored the release
            to return to work.




                                          6
WCJ Dec. at 17; see also R.R. at 127a (wherein Dr. Dragann confirmed that he
“absolutely” “remember[ed] having a comprehensive discussion with [Claimant]
about what his job required before [he] released him to full[-]duty work in May of
2011”).
                After a thorough review of the record, this Court concludes that the
WCJ’s findings of fact are supported by substantial evidence, the Board did not
commit an error of law nor were Claimant’s constitutional rights violated.
Accordingly, the Board properly affirmed the WCJ’s decision.3
                For all of the above reasons, the Board’s order is affirmed.


                                              ___________________________
                                              ANNE E. COVEY, Judge




      3
          Based upon our disposition of the first issue, we need not address Claimant’s other issues.
                                                   7
               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Rick Gring,                             :
                        Petitioner      :
                                        :
                  v.                    :
                                        :
Workers’ Compensation Appeal Board      :
(Industrial Services, Inc.),            :   Nos. 1545 & 1546 C.D. 2016
                           Respondent   :


                                     ORDER

              AND NOW, this 11th day of December 2017, the Workers’
Compensation Appeal Board’s August 26, 2016 order is affirmed.


                                     ___________________________
                                     ANNE E. COVEY, Judge
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Rick Gring,                               :
                    Petitioner            :
                                          :
              v.                          :
                                          :
Workers’ Compensation Appeal              :
Board (Industrial Services, Inc.),        :   No. 1545 & 1546 C.D. 2016
                   Respondent             :   Submitted: February 17, 2017



BEFORE:       HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED

DISSENTING OPINION
BY JUDGE COSGROVE                             FILED: December 11, 2017


              In this matter, the Workers’ Compensation Appeal Board (Board)
concluded Rick Gring (Petitioner) was not entitled to a presumption that his alleged
disability after being laid off from Industrial Services, Inc. (Employer) was causally
related to his work injury since he was not working under restrictions. (Board’s
Opinion at 7.) The Board found Petitioner had returned to his pre-injury full-duty
job and that both Dr. Dragann and Dr. Rubenstein credibly testified that Petitioner
did not have restrictions due to his 2010 injury when Petitioner first returned to work
in 2011. However, the Board also found there were many things Petitioner could
not do or needed help doing due to his 2010 injury. Further, Employer did not have
job duty classifications that differentiated between regular and light duty. (WCJ’s
Decision at 15.) Whether or not Petitioner was prescribed restrictions, these findings
imply modification of duties, “thus clouding the [Board’s] analysis.” See Dougherty
v. Workers’ Compensation. Appeal Board (QVC, Inc.), 102 A.3d 591, 597 (Pa.
Cmwlth. 2014). As the Majority does not adequately address this "clouding," I am
compelled to dissent.




                                      ___________________________
                                      JOSEPH M. COSGROVE, Judge




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