          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Davidson Construction,                  :
                         Petitioner     :
                                        :
                  v.                    :   No. 1414 C.D. 2016
                                        :   Submitted: January 6, 2017
Workers’ Compensation Appeal            :
Board (Butcher, Uninsured               :
Employers Guaranty Fund/ACS             :
Claims Service and State Workers’       :
Insurance Fund),                        :
                         Respondents    :



BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE JULIA K. HEARTHWAY, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                        FILED: April 6, 2017


      Davidson Construction (Employer) petitions for review of the Order of the
Workers’ Compensation Appeal Board (Board) that affirmed the Decision and
Order of a Workers’ Compensation Judge (WCJ) that granted the Claim and
Penalty Petitions filed by Lamont Butcher (Claimant).      On appeal, Employer
argues that: (1) the WCJ erred in finding that Claimant was not fully recovered
and was entitled to ongoing benefits; (2) the WCJ should have suspended
Claimant’s benefits because Claimant refused available job offers within
Claimant’s work restrictions; and (3) the WCJ abused his discretion by imposing a
penalty based on Employer’s lack of workers’ compensation insurance.1
Discerning no error or abuse of discretion, we affirm.
       Claimant filed the Claim Petition against Employer on June 9, 2014,
averring that he sustained work-related injuries to his head, neck, right shoulder,
back, and both knees when he fell at work on May 16, 2014. (Claim Petition at 2.)
On the same day, Claimant filed the Penalty Petition claiming that Employer
violated Section 406.1 of the Workers’ Compensation Act2 (Act) by not filing any
documents with the Bureau of Workers’ Compensation (Bureau) despite having
timely notice of Claimant’s injuries. (Penalty Petition at 2-3.) Thereafter, on July
25, 2014, Claimant filed another Claim Petition seeking benefits from the
Uninsured Employers Guaranty Fund (UEGF) because Employer did not maintain
workers’ compensation insurance at the time of his injury. (UEGF Claim Petition.)
UEGF filed an answer denying the material allegations. All three petitions were
assigned to a WCJ for disposition.
       The WCJ held multiple hearings,3 at which Claimant twice testified in
person and offered the deposition testimony of his treating physician, Andrew
Lipton, D.O. Claimant testified4 that he worked for Employer as a laborer earning
$900 per week. Claimant fell while working on a construction site on May 16,
2014, injuring “his head, neck, right shoulder, low back and both knees.” (WCJ

       1
          The Uninsured Employers Guaranty Fund/ACS Claims Service and the State Workers’
Insurance Fund are not participating in this appeal.
        2
          Act of June 2, 1915, P.L. 736, added by Section 3 of the Act of February 8, 1972, P.L.
25, as amended, 77 P.S. § 717.1.
        3
          Claimant and UEGF were represented by counsel before the WCJ, Employer was not.
However, Employer’s owner attended the hearings, but not the depositions of the medical
experts.
        4
          Claimant testified on August 25, 2014 and July 9, 2015. Claimant’s testimony is
summarized in findings of fact 3 and 4.



                                               2
Decision, Findings of Fact (FOF) ¶ 3b.) After informing Employer of the fall, he
completed an accident report and went to the hospital. Claimant now is being
treated by Dr. Lipton, and he “does not feel able to return to work.” (Id. ¶ 3d.)
Claimant acknowledged that he received job offers from Employer on July 21,
2014 and on November 20, 2014, but “did not return to work after the [first] job
offer because ‘[he] was still hurting’” or after the second job offer because he
“couldn’t carry something heavy” and “did not believe that he could physically
glaze windows.” (Id. ¶ 4c.) Claimant indicated that his right knee injury has
resolved, but he continued to have trouble with his right shoulder and lower back.
       Dr. Lipton, who is board-certified in family medicine and neuro-
musculoskeletal medicine, began treating Claimant on May 23, 2014, and has
treated him regularly since.5       (FOF ¶ 5; R.R. at 8.)          Based on his physical
examinations of Claimant and review of Claimant’s medical records, diagnostic
studies, and Claimant’s description of the fall, Dr. Lipton diagnosed “Claimant
with cervical disc disease, lumbar disc disease, cervical radiculitis, right shoulder
pain and low back pain” all related to the May 16, 2014 work injury. (FOF ¶ 5e.)
Dr. Lipton opined that Claimant has not fully recovered from these injuries and
was incapable of performing his pre-injury position, but could possibly perform
sedentary work.
       UEGF presented the fact testimony of Employer’s Owner (Owner), and the
deposition testimony of John Donahue, M.D.               Owner testified6 that he hired
Claimant in February 2014, and he paid Claimant a total weekly salary of $625.00.

       5
          Dr. Lipton’s deposition testimony can be found from pages 4 to 38 of the reproduced
record. His testimony is summarized in finding of fact 5.
        6
          Owner testified live before the WCJ on July 9, 2015. Owner’s testimony is summarized
in finding of fact 12.



                                              3
He acknowledged that Claimant worked for Employer on May 16, 2014, and told
him about Claimant’s fall on that day. Owner described two letters Employer sent
to Claimant on July 21, 2014,7 and November 20, 2014, calling him back to work
on a modified duty basis, but stated that Claimant did not return to work. The July
21, 2014 and November 20, 2014 letters offering Claimant work were submitted
into the record. (Id. ¶¶ 11-12; R.R. at 158-59.)
       Dr. Donahue,8 who is board-certified in orthopedic surgery, performed an
independent medical examination (IME) of Claimant on October 14, 2014. After
performing a physical examination and obtaining from Claimant his medical
history, a history of the incident, and his related medical treatment, Dr. Donahue
opined that “Claimant possibly sustained a right shoulder strain, right knee strain
and left knee strain” but no other injuries, and had fully recovered from those
injuries as of the October 14, 2014 IME.               (Id. ¶ 7e.) Dr. Donahue released
Claimant to full duty work without work-related restrictions.
       The WCJ found Claimant’s testimony credible except as to his wages, which
the WCJ found were $125.00 per day as credibly testified to by Owner. (Id. ¶¶ 13-
14.) Thus, the WCJ “accept[ed] Claimant’s testimony that he was physically
unable to perform either his pre-injury or modified job duties for the Employer
since the work injury.” (Id.) The WCJ found Owner credible on the issue of
Claimant’s wages, but, generally, found that testimony credible only “to the extent
that it does not conflict with the Claimant’s otherwise credible testimony.” (Id. ¶


       7
          The WCJ’s finding of fact indicates that this letter was sent on June 21, 2014, and the
parties refer to this as the June 21, 2014 letter. (FOF ¶ 12g.) However, the letter itself is dated
July 21, 2014. (R.R. at 158.) We will refer to this as the July 21, 2014 letter.
        8
          Dr. Donahue’s deposition testimony can be found from pages 85 to 129 of the
reproduced record. His testimony is summarized in finding of fact 7.



                                                4
14.)   Finally, the WCJ found Dr. Lipton’s testimony more credible than Dr.
Donahue’s testimony, noting that Dr. Lipton was Claimant’s treating physician,
and his opinions were supported by the treatment records and diagnostic studies, as
well as the mechanism of Claimant’s injury and Claimant’s complaints. (Id. ¶ 15.)
       Based on his findings of fact and credibility determinations, the WCJ found
that Claimant sustained a work-related injury “in the nature of cervical disc
disease, lumbar disc disease, cervical radiculitis, right shoulder pain and low back
pain,” is not fully recovered, and is totally disabled as of May 16, 2014 and
ongoing. (Id. ¶¶ 17-18.) Claimant’s average weekly wage was $625.00, which
results in a compensation rate of $466.00 per week. (Id. ¶ 19.) The WCJ further
found that Employer did not file any Bureau documents as required by the Act and,
therefore, granted the Penalty Petition. (Id. ¶ 24.) Accordingly, the WCJ found
Employer, who was uninsured at the time Claimant’s work-related injuries
occurred, “primarily liable” to pay Claimant temporary total disability (TTD)
benefits beginning May 16, 2014, and ongoing, his reasonable and necessary
medical expenses related to his work-related injuries, and a 10 percent penalty.
(WCJ Order.) The WCJ concluded that UEGF was “secondarily liable” for the
disability benefits and medical expenses if Employer did not make payments as
directed within 30 days, but “retain[ed] its statutory rights of reimbursement
against the Employer.” (Id.)
       Employer appealed to the Board, arguing that: (1) the WCJ erred in not
suspending Claimant’s benefits based on the July 21, 2014 job offer that was
within Dr. Lipton’s work restrictions; (2) the WCJ erred in not finding Claimant
fully recovered from his work-related injuries based on Dr. Donahue’s opinions
because Dr. Lipton could not offer an opinion of Claimant’s condition after August



                                         5
27, 2014; and (3) the WCJ abused his discretion in awarding a penalty based on
Employer’s not having workers’ compensation insurance. The Board affirmed the
WCJ’s Order. Because the WCJ, in his role as fact finder, credited Claimant’s
testimony that he could not return to work at a modified position due to his back
pain, the award of ongoing benefits was supported. (Board Op. at 9.) The WCJ
had credited Dr. Lipton’s opinions over those of Dr. Donahue which supported the
finding that Claimant was not fully recovered. (Id. at 10.) Observing that the WCJ
had not awarded the penalty based on Employer’s not having workers’
compensation insurance, the Board found no abuse of discretion in assessing a 10
percent penalty because Employer did not file any of the documents with the
Bureau required by Section 406.1 of the Act. Employer, who is now represented
by counsel, petitions this Court for review.9
       On appeal, Employer asserts that the WCJ should not have awarded ongoing
wage loss benefits based on Dr. Lipton’s testimony and Claimant’s subjective
complaints of ongoing pain.           Employer contends that the WCJ should have
credited Dr. Donahue’s testimony that Claimant was fully recovered as of October
14, 2014, rather than Dr. Lipton’s testimony because Dr. Lipton last examined
Claimant on August 27, 2014. Therefore, according to Employer, Dr. Donahue,
was “the only doctor in a position to assess Claimant’s injuries as of” October 14,
2014. (Employer’s Br. at 12.) Employer also argues that because the WCJ did not
believe Claimant’s testimony about his wages, “Claimant’s credibility was clearly
in question and his testimony concerning” his continuing injuries “cannot be

       9
          “Our scope of 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).



                                               6
believed as a matter of law over Dr. Donahue’s assessment of his injuries.”
(Employer’s Br. at 13.)
      In a claim petition proceeding, “the burden of establishing a right to
compensation and of proving all necessary elements to support an award rests with
the claimant.” Coyne v. Workers’ Comp. Appeal Bd. (Villanova Univ.), 942 A.2d
939, 945 (Pa. Cmwlth. 2008). A “claimant must establish that h[is] injury was
sustained during the course and scope of employment and is causally related
thereto,” as well as the length of the claimant’s disability, i.e., loss of earning
power. Id. “[I]t has long been recognized that the WCJ has the exclusive authority
to make findings of fact and credibility determinations” and, as the ultimate fact
finder, the WCJ is “‘the exclusive arbiter of credibility and evidentiary weight.’”
Daniels v. Workers’ Comp. Appeal Bd. (Tristate Transp.), 828 A.2d 1043, 1052
(Pa. 2003) (quoting Thompson v. Workers’ Comp. Appeal Bd. (USF & G Co. and
Craig Welding & Equip. Rental), 781 A.2d 1146, 1150 (Pa. 2001)). A “WCJ is
entitled to accept or reject the testimony of any witness, including a medical
witness, in whole or in part.” Joy Global, Inc. v. Workers’ Comp. Appeal Bd.
(Hogue), 876 A.2d 1098, 1103 (Pa. Cmwlth. 2005). These determinations are not
subject to appellate review.     Id.   However, testimony that “is so uncertain,
inadequate, equivocal, ambiguous or contradictory as to make administrative
findings of fact mere conjecture . . . fails to meet the test of substantiality.” D & T
Brooks, Inc. v. Workmen’s Comp. Appeal Bd. (Knight), 392 A.2d 895, 898 (Pa.
Cmwlth. 1978).
      The WCJ, acting as fact finder, weighed the expert testimony in this matter,
chose to credit Dr. Lipton’s opinions, and provided objective bases for these
determinations that allows for appellate review. Employer’s contention that “Dr.



                                          7
Lipton was unaware of Claimant’s progress beyond August of 2014” and,
therefore, his opinions as to Claimant’s condition as of October 14, 2014, were
rendered “inadequate to support the ongoing TTD claim as a matter of law” is not
correct.   (Employer’s Br. at 12.)     Upon review, the premise of Employer’s
challenge to the adequacy of Dr. Lipton’s testimony is not supported by the record.
Dr. Lipton was aware of Claimant’s condition as of October 14, 2014, having
testified by deposition on that day that he had treated Claimant in his office on
October 13, 2014, had future treatments scheduled for Claimant, and Claimant
continued to receive physical therapy for the work-related injuries. (R.R. at 17, 19,
23.) Dr. Lipton specifically testified, on October 14, 2014, that Claimant was not
fully recovered, could not return to his pre-injury job, and had not been discharged
from Dr. Lipton’s care. (Id. at 19.) This credited testimony supports an award of
ongoing benefits.
      With regard to Employer’s assertion that the WCJ could not solely rely on
Claimant’s testimony to rebut Dr. Donahue’s opinions, the WCJ did not do so. He
relied on Dr. Lipton’s testimony as well as Claimant’s testimony.         Moreover,
Employer’s contention that the WCJ should not have credited Claimant’s
testimony that he has not fully recovered because other portions of Claimant’s
testimony were found to be not credible is contrary to well-settled law. A WCJ
can “accept or reject the testimony of any witness . . . in whole or in part.” Joy
Global, Inc., 876 A.2d at 1103 (emphasis added).         Here, the WCJ reviewed
Claimant’s testimony in its entirety and, while he did not credit Claimant’s
statements regarding his wages, the WCJ accepted as credible the remainder of
Claimant’s testimony. (FOF ¶ 13.) That determination is not subject to appellate
review.    Joy Global, Inc., 876 A.2d at 1103.      Claimant’s credited testimony



                                         8
established that, other than his right knee injury, he had not recovered from his
other work-related injuries and he could not physically perform either his pre-
injury position or the modified duty positions Employer offered. (FOF ¶¶ 3-4.)
We cannot, as Employer requests, usurp the role of the WCJ and reweigh the
evidence.10
       Employer next argues that Claimant’s benefits should have been suspended
as of July 21, 2014 or November 20, 2014, based on its offer of work within
Claimant’s work restrictions. “A suspension of disability benefits is appropriate
where the work injury no longer impairs the claimant’s earning power.” Ingrassia
v. Workers’ Comp. Appeal Bd. (Universal Health Servs., Inc.), 126 A.3d 394, 401
(Pa. Cmwlth. 2015). Once a claimant demonstrates a loss of earning power as a
result of a work-related injury, the initial “burden of proving that suitable
employment is available” within the claimant’s work restrictions is on the
employer. Presby Homes and Servs. v. Workers’ Comp. Appeal Bd. (Quiah), 982

       10
           Employer includes an assertion that the WCJ incorrectly placed the burden on it to
show that Claimant was fully recovered. However, once a claimant establishes that a work-
related injury resulted in a loss of earning power, the claimant has established a right to benefits
and “the burden properly shift[s] to the [e]mployer to show why its request for a suspension [or
termination] of those benefits should be granted.” Cruz v. Workers’ Comp. Appeal Bd. (Kennett
Square Specialties), 99 A.3d 397, 408 (Pa. 2014); see also Vista Int’l Hotel v. Workmen’s Comp.
Appeal Bd. (Daniels), 742 A.2d 649, 658 n.11 (Pa. 1999). “An employer seeking to terminate a
claimant’s benefits must prove that a claimant’s disability has ceased, or that any existing injury
is not the result of the work-related injury” by presenting competent and unequivocal medical
evidence of full recovery. O’Neill v. Workers’ Comp. Appeal Bd. (News Corp., Ltd.), 29 A.3d
50, 53 (Pa. Cmwlth. 2011). Here, Claimant met his initial burden of proof because the WCJ
credited Claimant’s evidence that he had sustained a work-related injury and was disabled as a
result. Cruz, 99 A.3d at 408; Coyne, 942 A.2d at 945. If Employer wanted to assert that
Claimant had fully recovered as a defense, Employer bore the burden of proving that defense.
Cruz, 99 A.3d at 408; Vista Int’l Hotel, 742 A.2d at 658 n.11. Although Employer presented
evidence to support its claim of full recovery, the WCJ did not credit that evidence, choosing
instead to credit the conflicting evidence presented by Claimant.



                                                 9
A.2d 1261, 1264 & 1264 n.2 (Pa. Cmwlth. 2009). “It is then up to a workers’
compensation judge to determine whether the claimant can actually perform the
job in question.” Gen. Elec. Co. v. Workers’ Comp. Appeal Bd. (Myers), 849
A.2d 1166, 1172 (Pa. 2004) (opinion announcing judgment of Court) (citing
Kachinski v. Workmen’s Comp. Appeal Bd. (Vepco Constr. Co.), 532 A.2d 374,
379-80 (Pa. 1987)).
      We find no error in the WCJ not suspending Claimant’s benefits based on
these job offers. The July 21, 2014 letter contained no description of the offered
position and the November 20, 2014 letter offered Claimant a position “glazing
windows, lifting weight would be no more than [three] pounds at one time.” (FOF
¶ 11 (internal quotation omitted).)     However, Owner also testified that the
November 20, 2014 modified position was different than the one offered in the
letter and would require Claimant to lift between 20 and 80 pounds. (Id. ¶ 12h.)
Although Dr. Lipton indicated that Claimant could “possibly” perform sedentary
work, he described that as being seated work with no lifting, bending, or squatting.
(R.R. at 20.) Owner testified the glazing work would require Claimant to lift three
pounds, stay on his feet, and work on scaffolding, and Claimant testified this
position would require him to climb ladders. (Hr’g Tr., July 9, 2015, at 42, 58.)
Claimant credibly testified that he could not perform the positions offered by
Employer because “‘[he] was still hurting,’” he “couldn’t carry something heavy”
and “did not believe that he could physically glaze windows.” (FOF ¶ 4c.) Based
on that testimony, the WCJ found that Claimant could not perform the jobs offered
and, therefore, Employer was not entitled to a suspension of Claimant’s benefits.
      Finally, Employer argues that it was an abuse of discretion to award a
penalty based on the WCJ’s finding that “Employer violated the Act by failing to



                                        10
procure workers[’] compensation insurance.” (Employer’s Br. at 15.) However,
the WCJ did not grant the Penalty Petition on this basis but found that Employer
violated the Act by not filing any Bureau documents as required by Section 406.1
of the Act, 77 P.S. § 717.1.11 (FOF ¶ 24.)
        Section 435(d)(i) of the Act authorizes the imposition of a penalty on
employers or insurers not to exceed 10 per centum of the amount awarded and
accrued interest payable “for violations of the provisions of this [A]ct or such rules


        11
             Section 406.1(a), (c), (d)(1), (2) states, in relevant part:

                (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. . . . .
                ....
                (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.

                (d)(1) In any instance where an employer is uncertain whether a claim is
        compensable under this act or is uncertain of the extent of its liability under this
        act, the employer may initiate compensation payments without prejudice and
        without admitting liability pursuant to a notice of temporary compensation
        payable as prescribed by the department.

               (2) The notice of temporary compensation payable shall be sent to the
        claimant and a copy filed with the department and shall notify the claimant that
        the payment of temporary compensation is not an admission of liability of the
        employer with respect to the injury which is the subject of the notice of temporary
        compensation payable. . . . .

77 P.S. § 717.1(a), (c), (d)(1), (2).



                                                     11
and regulations or rules of procedure.”12 77 P.S. § 991(d)(i). “When a violation of
the Act occurs, the assessment of penalties, as well as the amount of penalties, is
within the discretion of the WCJ.” City of Phila. v. Workers’ Comp. Appeal Bd.
(Sherlock), 934 A.2d 156, 160-61 (Pa. Cmwlth. 2007).                    This Court will not
overturn a WCJ’s penalty assessment unless it was an abuse of discretion, which
“is not merely an error of judgment but occurs when the law is misapplied in
reaching a conclusion.” Id. at 161.
      An employer violates Section 406.1 if it does not issue, within 21-days’
notice of a work injury, a Notice of Compensation Payable, a Notice of
Compensation Denial, or a Notice of Temporary Compensation Payable. Coyne,
942 A.2d at 951. An employer who does not issue such documents can be liable
for penalties for not complying with Section 406.1 of the Act. Id. Here, it is
undisputed that Employer did not file any of these Bureau documents for
Claimant’s work-related injuries, of which it was aware, and, therefore, it violated
the Act. (FOF ¶ 2; Hr’g Tr., Aug. 25, 2014, at 5.) Thus, we discern no abuse of
discretion in the WCJ imposing a 10 percent penalty.




      12
          Added by Section 3 of the Act of February 8, 1972, P.L. 25, as amended, 77 P.S. §
991(d)(i). Section 435(d)(i) provides, in pertinent part:

              (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 . . . .

Id.



                                              12
For the foregoing reasons, we affirm the Board’s Order.




                               _____________________________________
                               RENÉE COHN JUBELIRER, Judge




                                 13
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Davidson Construction,                   :
                         Petitioner      :
                                         :
                  v.                     :   No. 1414 C.D. 2016
                                         :
Workers’ Compensation Appeal             :
Board (Butcher, Uninsured                :
Employers Guaranty Fund/ACS              :
Claims Service and State Workers’        :
Insurance Fund),                         :
                         Respondents     :


                                      ORDER


      NOW, April 6, 2017, the order of the Workers’ Compensation Appeal
Board, entered in the above-captioned matter, is hereby AFFIRMED.




                                       _____________________________________
                                       RENÉE COHN JUBELIRER, Judge
