         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Richard Koway,                    :
                                  :
                       Petitioner :
                                  :
            v.                    : No. 216 C.D. 2019
                                  : Submitted: May 24, 2019
Workers' Compensation Appeal      :
Board (MV Transportation),        :
                                  :
                       Respondent :

BEFORE:     HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                     FILED: September 25, 2019


            Richard Koway (Claimant) petitions for review of the January 29,
2019 order of the Workers’ Compensation Appeal Board (Board), which affirmed
the decision of a workers’ compensation judge (WCJ) denying his reinstatement
petition. We affirm.
            Claimant sustained a work-related injury on May 29, 2012.          On
January 22, 2013, MV Transportation (Employer) issued a notice of temporary
compensation payable, which converted to a notice of compensation payable
(NCP), acknowledging an injury to Claimant’s right foot and right shoulder.
Claimant’s indemnity benefits were suspended based on his July 29, 2013 return to
work with no wage loss.
            On July 27, 2017, Claimant filed a reinstatement petition alleging that
as of July 19, 2017, his condition worsened, and he suffered a decrease in his
earning power as a result of the injury.1 Employer denied the allegations and the
matter was assigned to the WCJ.
               In support of his reinstatement petition, Claimant testified before the
WCJ on August 23, 2017, and November 15, 2017. Claimant stated that before his
injury, he worked in maintenance, which involved repairing vehicles, engines, and
transmissions, and lifting heavy items, such as tire rims that weighed over 80
pounds. Reproduced Record (R.R.) at 14a. Claimant said that he sustained an
injury on May 29, 2012, when he slipped on oil, jerked his body, slammed his left
foot down, and twisted his back and neck. R.R. at 15a. Claimant said that he went
to Employer’s doctors for treatment; he started physical therapy, found a torn
tendon in his left foot, and underwent surgery for his right shoulder. He was out of
work for approximately six months following surgery and subsequently returned to
work in a light-duty position. R.R. at 16a-18a. After six months of light duty,
Claimant was transferred to a maintenance supervisor position, which he held for
one year before being transferred to work as a utility supervisor. R.R. at 19a-20a.
               Claimant testified that he began treating with a Dr. Glaser in
November 2016. Dr. Glaser sent him to therapy and eventually recommended
shoulder replacement surgery. Upon receiving this recommendation, Claimant
retained an attorney. Claimant testified that on June 21, 2017, he told his workers’
compensation caseworker that he had hired an attorney, and he was fired that same
night. R.R. at 21a-24a.
               Claimant acknowledged that Employer cited insubordination and
complaints against him as reasons for his discharge. He testified that James Pate,

       1
          Claimant subsequently amended the reinstatement date to either June 21, 2017, the date
of his discharge, or July 3, 2017, the date his medical provider said he could not return to work.



                                                2
his supervisor,2 and Dean Carbanaro, another supervisor, met with him and told
him to perform his duties in a different manner. Claimant stated that he felt
physically capable of doing his supervisory job according to Mr. Pate’s and Mr.
Carbanaro’s instructions, as long as he had adequate personnel.                  However,
Claimant asserted that he did not comply with their directives because he had an
insufficient number of motivated or qualified employees. Claimant explained that
he continued to perform his duties in the usual manner because he believed that he
could not do the job properly if he followed the new directives and he would have
to stay late to finish his work. Claimant admitted that he fueled, ran, and cleaned
buses, despite being specifically directed not to do so. R.R. at 25a-27a, 171a,
173a, 181a, 186a.
              At the time of his discharge, Claimant was working in a light-duty
position. Claimant testified that he had never been released to full-duty, he never
felt fully recovered, and he believed he could not perform his full-duty, pre-injury
position. Claimant stated that he has not worked since his discharge on June 21,
2017, and that he continues to receive therapy for his work injury. R.R. at 24a,
27a, 30a-31a.
              Claimant also submitted the deposition testimony of Michael J.
Attanasio, D.O., who is board-certified in family practice. Dr. Attanasio testified
that he examined Claimant twice, on July 3, 2017, and August 29, 2017, regarding
Claimant’s complaints of neck pain, right shoulder pain, and left foot and ankle
pain. Dr. Attanasio performed a physical examination of Claimant, reviewed


       2
        Throughout Claimant’s testimony, he and his counsel referred to his supervisor as
James Pappa, or “Mr. Pappa,” however, it is clear from the record that they are referring to
James Pate.



                                             3
previous medical records, MRIs, orthopedic evaluations, and physical therapy
notes.   Dr. Attanasio acknowledged that he had not reviewed any diagnostic
studies of Claimant’s left ankle. Based on his review, Dr. Attanasio noted that
there was no re-tear in Claimant’s shoulder, but he found tendinosis of multiple
tendons within the rotator cuff, a partial tear in the subscapularis tendon, a decrease
in shoulder range of motion, chronic pain, and inflammation. R.R. at 50a-51a,
54a-58a, 61a, 75a.
             Dr. Attanasio opined, within a reasonable degree of medical certainty,
that Claimant’s pain and loss of range of motion was not corrected by his shoulder
surgery, that there was no re-tear of his tendon but a different tendon had a small
tear, that there was right posterior tendinopathy of the ankle and cervical bulging
disk with foraminal encroachment in his neck, and that Claimant had continued
pain in his foot, ankle, shoulder, and neck areas. He testified that Claimant could
not perform any physical job requiring the use of his upper extremities, adding that
he also believed a sedentary job would be hard for Claimant in light of his
continued pain and discomfort. Dr. Attanasio said he disagreed with the opinion of
Mario Arena, M.D., that Claimant could return to work with restrictions. Rather,
Dr. Attanasio believed that Claimant had not fully recovered from the work injury.
R.R. at 62a-65a, 69a-70a, 73a.
             Employer presented the testimony of maintenance manager James
Pate on October 25, 2017.        He explained that Employer had a contract with
Southeastern Pennsylvania Transportation Authority (SEPTA) for the provision of
transportation services under which Employer provided cleaning and maintenance
services to SEPTA’s buses. The contract permitted SEPTA to assess liquidated
damages if Employer did not perform services as required. Mr. Pate testified that



                                          4
he supervised Claimant throughout his employment.         Mr. Pate explained that
Claimant was off work from January 2013 to July 2013; upon returning, Claimant
worked in a modified mechanic position, which involved no heavy lifting and
allowed him to seek assistance from other employees.           In 2014, Mr. Pate
transferred Claimant to a maintenance supervisor position, which involved
scheduling and supervisory duties, to protect him from further injury. R.R. at
121a.
            In 2016, Claimant transferred to a utility supervisor position. In this
position, Claimant’s duties originally included fueling and cleaning vehicles,
scheduling and covering staff, and installing or repairing drive cams and
mobilizers for safety. Mr. Pate testified that Claimant complained that there was
too much work, and Claimant’s work duties were subsequently limited to
supervising his crew. Mr. Pate said that Claimant’s supervisory responsibilities
were light duty in comparison to the physical requirements of his pre-injury
maintenance job.
            Mr. Pate stated that when SEPTA changed its expectations under the
contract, he and Mr. Carbanaro developed a plan for cleaning and fueling the buses
that Claimant was to implement with his crew. In May 2017, they met with
Claimant for two hours to review the plan, which required Claimant to ensure
adequate staffing and to stand outside, observe, and direct the crew. However, Mr.
Pate testified that as soon as he and Mr. Carbanaro left, Claimant refused to adhere
to the plan. Because Claimant’s crew was not cleaning to SEPTA’s satisfaction,
SEPTA assessed liquidated damages against Employer. Mr. Pate testified that he
suspended Claimant on May 31, 2017, due to his insubordination.




                                         5
             Mr. Pate said he was not aware that Claimant contacted an attorney.
He explained that after he and Mr. Carbanaro spoke with Claimant, and despite
Claimant’s suspension on May 31, 2017, Claimant continued to refuse their
directives. Mr. Pate testified that Claimant was disciplined at least 14 times, and
was given verbal and written warnings both before and after his injury.
Additionally, he stated that Claimant’s crew provided written reports reflecting that
Claimant refused to follow the plan. Mr. Pate testified that on June 21, 2017, six
weeks after meeting with Claimant to discuss the need for adequate staffing and
other specific responsibilities, he issued Claimant an Employee Coaching and
Counseling form that terminated Claimant’s employment due to “insubordination,
failure to follow directives, [and] failure to supervise . . . .” R.R. at 127a-28a,
130a.
             Employer also submitted the deposition testimony of Dr. Arena, who
is board-certified in orthopedic surgery. Dr. Arena first examined Claimant on
June 7, 2017, at which time he took a history from Claimant, conducted a physical
examination of Claimant’s shoulder, performed a neurologic examination of
Claimant’s cervical spine, and reviewed multiple MRIs. Dr. Arena stated that
although he found limited motion in Claimant’s right shoulder, with some
tenderness and mild impingement, his neurologic examination of Claimant showed
full strength. Dr. Arena testified that he reviewed multiple MRIs and saw no
significant changes from 2012 except for the surgical repair of one tendon tear. He
believed that any changes in Claimant’s cervical spine were degenerative in nature
and not causally related to Claimant’s May 29, 2012 work injury. Nevertheless, he
placed restrictions on Claimant, including occasional lifting up to 25 pounds and
frequent lifting up to 10 pounds. R.R. at 205a-12a, 225a.



                                         6
            Dr. Arena said that during his second examination of Claimant, on
October 2, 2017, the symptoms in his right shoulder remained unchanged, but
Claimant complained of soreness and occasional shooting pain in his ankles and
feet. Dr. Arena stated that upon physical examination, Claimant’s shoulder was
the same, his neck was the same, and his ankles showed full range of motion
bilaterally despite subjective tenderness. Dr. Arena testified that he found no
evidence to support any work restrictions regarding Claimant’s cervical spine,
ankles, or feet. He acknowledged that Claimant had no prior right shoulder or
cervical injuries before the injury and that his review of the records revealed
Claimant continued to experience symptoms since the May 29, 2012 work injury
occurred. Dr. Arena concluded that Claimant was not fully recovered from his
right shoulder injury. Nevertheless, Dr. Arena said he would not recommend a
shoulder replacement; instead, he would prescribe independent exercises and some
anti-inflammatory medication as needed. He testified that Claimant was capable of
performing his full duties as a supervisor. R.R. at 214a-19a, 221a, 227a.
            By decision dated February 13, 2018, the WCJ found Claimant
credible only as to the occurrence of the work injury. Findings of Fact (F.F.) No.
2. She found Mr. Pate to be more credible than Claimant as to the circumstances
surrounding Claimant’s discharge, citing Mr. Pate’s demeanor and Claimant’s
admission that he disregarded Mr. Pate’s explicit directives. Id. She also found
Dr. Arena more credible and persuasive than Dr. Attanasio, stating that Dr. Arena




                                         7
was better credentialed and evaluated Claimant more comprehensively, and noting
that Claimant’s testimony did not support Dr. Attanasio’s testimony. 3 Id.
             Relying on Mr. Pate’s credible testimony, the WCJ found that
Claimant’s May 29, 2012 work injury prevented his return to his pre-injury job,
and that he had a loss of earning capacity as a result of that work injury. However,
she found that Claimant returned to work on July 29, 2013, at wages equal to or
greater than his time-of-injury wages. F.F. No. 3. The WCJ further found that
work within Claimant’s restrictions would have been available on and after June
21, 2017, with no loss of wages, but for Claimant’s discharge due to
insubordination, specifically, his refusal to perform his duties as directed. F.F.
Nos. 16, 40. Referencing Mr. Pate’s testimony, the WCJ concluded that the
evidence did not establish that Claimant’s earning power was adversely affected by
the work injury, and through no fault of his own, as of June 21, 2017. F.F. No. 41.
Therefore, the WCJ denied Claimant’s reinstatement petition, and the Board
affirmed the WCJ’s decision.
             On appeal to this Court,4 Claimant argues that the WCJ’s decision is
not supported by substantial evidence. More specifically, Claimant contends that
the WCJ erred in finding a lack of good faith on Claimant’s part and in failing to
find that Claimant’s condition had worsened.


      3
         The WCJ amended the NCP by adding “left ankle pain, stable repair right shoulder
rotator cuff with no evidence of re-tear and with mild residual rotator cuff tendonitis” to
Claimant’s work injuries. R.R. at 283a.

      4
          Our scope of review is limited to determining whether constitutional rights were
violated, whether an error of law was committed, or whether the WCJ’s findings of fact are
supported by substantial evidence. Dougherty v. Workers’ Compensation Appeal Board (QVC
Inc.), 102 A.3d 591, 594 n.4 (Pa. Cmwlth. 2014).



                                            8
               Initially, we note that Section 413(a) of the Workers’ Compensation
Act (Act)5 provides in part as follows:

               A workers’ compensation judge . . . may, at any time,
               modify, reinstate, suspend, or terminate a notice of
               compensation payable, an original or supplemental
               agreement or an award of the department or its workers’
               compensation judge, upon petition filed by either party
               with the department, upon proof that the disability of an
               injured employe has increased, decreased, recurred, or
               has temporarily or finally ceased, or that the status of any
               dependent has changed . . . . [W]here compensation has
               been suspended because the employe’s earnings are equal
               to or in excess of his wages prior to the injury[,] . . .
               payments under the agreement or award may be resumed
               at any time during the period for which compensation for
               partial disability is payable, unless it be shown that the
               loss in earnings does not result from the disability due to
               the injury.
77 P.S. §772 (emphasis added).
               A claimant seeking reinstatement following a suspension of benefits
must prove that (1) through no fault of his own, his disability is again adversely
affected by the work-related injury, and (2) the disability that gave rise to the
original claim continues. Pieper v. Ametek-Thermox Instruments Division, 584
A.2d 301, 304-05 (Pa. 1990). In such cases, the causal connection between the
original work-related injury and the disability that gave rise to compensation is
presumed. Id. Once the claimant meets this burden, the burden shifts to the




      5
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §772.




                                                9
employer to prove that the claimant’s disability6 is due to a cause other than the
work-related injury. Id.
             In Vista International Hotel v. Workmen’s Compensation Appeal
Board (Daniels), 742 A.2d 649, 657-58 (Pa. 1999), our Supreme Court explained
that, in determining whether a partially disabled employee is entitled to total
disability benefits upon the termination of a light-duty job, the factfinder must
consider the claimant’s good faith and bad faith in connection with the termination.
If the employer has provided work within the claimant’s physical limitations at no
loss of pay and establishes that the claimant was discharged for conduct evidencing
bad faith or a lack of good faith, the claimant is not entitled to a reinstatement of
benefits. Sauer v. Workers’ Compensation Appeal Board (Verizon Pennsylvania,
Inc.), 26 A.3d 531, 533, 535-38 (Pa. Cmwlth. 2011). An employer can establish a
lack of good faith, or bad faith, when the employer proves that it discharged the
claimant for misconduct. Id. at 536. Whether a claimant was discharged for
conduct evidencing bad faith is a factual determination for the WCJ. Champion v.
Workers’ Compensation Appeal Board (Glasgow, Inc.), 753 A.2d 337 (Pa.
Cmwlth. 2000).
             Claimant first argues that the WCJ’s finding that his discharge was the
result of bad faith was not based on substantial evidence. However, Claimant
relies on his own testimony to support this argument, and the WCJ rejected his
testimony as not credible. F.F. No. 2. Instead, the WCJ credited Mr. Pate’s
testimony, which demonstrated that Claimant was discharged for insubordination,


      6
         In the context of workers’ compensation law, the term “disability” means loss of
earning power. Howze v. Workers’ Compensation Appeal Board (General Electric Co.), 714
A.2d 1140, 1142 (Pa. Cmwlth. 1998).



                                           10
failure to follow directives, and failure to supervise. Additionally, Mr. Pate’s
testimony established that while Employer provided light-duty positions to
accommodate Claimant’s restrictions, Claimant refused to perform his duties as
instructed.
              It is a fundamental tenet of workers’ compensation law that the WCJ
is the exclusive arbiter of witness credibility and evidentiary weight. Lindemuth v.
Workers’ Compensation Appeal Board (Strishock Coal Co.), 134 A.3d 111, 125
(Pa. Cmwlth. 2016). The WCJ is free to accept or reject, in whole or in part, any
evidence, including medical testimony. Id. The WCJ’s determinations will not be
disturbed on appeal if supported by substantial evidence.7 Verity v. Workers’
Compensation Appeal Board (The Malvern School), 38 A.3d 936, 940 n.7 (Pa.
Cmwlth. 2011). It is irrelevant whether there is evidence to support a different
conclusion. Verizon Pa. Inc. v. Workers’ Compensation Appeal Board (Mills), 116
A.3d 1157, 1162 (Pa. Cmwlth. 2015). Rather, the inquiry focuses on whether there
is evidence supporting the WCJ’s findings made.                     Furnari v. Workers’
Compensation Appeal Board (Temple Inland), 90 A.3d 53, 60 (Pa. Cmwlth. 2014).
In this instance, Mr. Pate’s credible testimony is substantial evidence to support the
WCJ’s finding that Claimant’s disability was not due to his work injury, but due to
Claimant’s lack of good faith, i.e., his admitted refusal to carry out his work
responsibilities as directed.
              Claimant also argues that the WCJ erred in finding his condition had
not worsened. However, the WCJ rejected Dr. Attanasio’s testimony in this regard


       7
         Substantial evidence is such relevant evidence as a reasonable person might accept as
adequate to support a finding. Wells-Moore v. Workmen’s Compensation Appeal Board (McNeil
Consumer Products Co.), 601 A.2d 879, 881 (Pa. Cmwlth. 1992).



                                             11
and credited Claimant’s testimony only to establish that he suffered a work injury.
Consequently, Claimant failed to present credible evidence demonstrating that his
condition had worsened. Having determined that the WCJ’s decision is supported
by substantial evidence, we conclude that the WCJ did not err in denying
Claimant’s reinstatement petition, and the Board properly affirmed the WCJ’s
decision.
            Accordingly, we affirm.




                                      MICHAEL H. WOJCIK, Judge




Judge Fizzano Cannon did not participate in the decision of this case.




                                        12
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Richard Koway,                    :
                                  :
                       Petitioner :
                                  :
            v.                    : No. 216 C.D. 2019
                                  :
Workers' Compensation Appeal      :
Board (MV Transportation),        :
                                  :
                       Respondent :



                                ORDER


           AND NOW, this 25th day of September, 2019, the order of the
Workers’ Compensation Appeal Board, dated January 29, 2019, is AFFIRMED.




                                  __________________________________
                                  MICHAEL H. WOJCIK, Judge
