             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Donald Schafer,                    :
                       Petitioner  :
                                   :
            v.                     :                 No. 452 C.D. 2019
                                   :                 SUBMITTED: October 4, 2019
Workers' Compensation Appeal Board :
(Reese Masonry),                   :
                       Respondent :


BEFORE:         HONORABLE P. KEVIN BROBSON, Judge
                HONORABLE MICHAEL H. WOJCIK, Judge
                HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                                          FILED: January 13, 2020

                Donald Schafer (Claimant) petitions for review of an order of the
Workers’ Compensation Appeal Board (Board) that affirmed the post-remand
decision of Workers’ Compensation Judge (WCJ) Gerald Yanity to deny Claimant’s
petition for reinstatement of total disability benefits and petition for penalties. We
affirm.1
                While working as a construction worker for Reese Masonry
(Employer), Claimant sustained a November 2011 “traction injury that worsened an
already compromised nerve root at the L5-S1 Level.” (WCJ Yannity’s Jan. 12, 2018,
Dec., Finding of Fact “F.F.” No. 1.) Before disposition of the claim petition for the
November 2011 work injury, Claimant filed a second claim petition alleging a



    1
        In October 2019, this Court denied Claimant’s application for oral argument.
December 2012 work injury. In July 2013, WCJ Charles Getty adjudicated both
claim petitions.
             With respect to the November 2011 work injury and first claim petition,
WCJ Getty awarded temporary total disability benefits for the closed period of
December 6, 2011, to September 12, 2012, with a suspension thereafter. In so doing,
WCJ Getty found that Claimant’s loss of earnings ceased September 12, 2012, when
he returned to work “in a light-duty capacity, with lifting of less than 20 pounds and
no repetitive lifting.” (WCJ Getty’s July 15, 2013, Dec., F.F. No. 10; Reproduced
Record “R.R.” at 7a.) Claimant’s supervisor confirmed that he kept Claimant at light
duty and that Claimant “worked until a general, seasonal layoff shortly before
Christmas.” (Id., F.F. No. 11; R.R. at 8a.) As for the alleged December 2012 injury,
WCJ Getty denied the second claim petition. In so doing, WCJ Getty noted that
Claimant failed to present evidence from himself or any treating physician as to the
alleged December 2012 incident. (Id., F.F. No. 5 and Conclusion of Law “C.L.” No.
5; R.R. at 7a and 10a.) Claimant did not appeal from WCJ Getty’s decision.
             In October 2013, Claimant filed the reinstatement petition at issue
claiming that he suffered a recurring wage loss due to the November 2011 injury as
of September 13, 2012. WCJ Yanity denied the petition, citing Claimant’s failure
to prove that his condition worsened or that he could no longer perform his regular
job as a roofer due to disability attributable to the November 2011 work injury.
(WCJ Yanity’s July 15, 2015, Dec., C.L. No. 2; R.R. at 355a.) In support, WCJ
Yanity reasoned: “Although [board-certified orthopedic surgeon Thomas Kramer,
M.D.] testified that Claimant is permanently restricted to light[-]duty work, he
attributed those restrictions to an incident which occurred on December 13, 2012.”
(Id.) In addition, observing that WCJ Getty previously denied Claimant’s claim



                                          2
petition with respect to the December 2012 incident, WCJ Yanity concluded that res
judicata prohibited an award of benefits for disability resulting from that incident.
WCJ Yanity also denied Claimant’s penalty petition. The Board affirmed.
               On appeal, we vacated the Board’s order and remanded the matter for
consideration pursuant to Bufford v. Workers’ Compensation Appeal Board (North
American Telecom), 2 A.3d 548 (Pa. 2010).2 In so doing, we reasoned:

               Under the standard set forth in Bufford, Claimant only
               needed to prove his earning power was once again
               adversely affected by his disability, and that such
               disability was a continuation of that which arose from his
               original claim. [He] did not need to prove his condition
               had worsened or that he could no longer perform work as
               a roofer.

Schafer v. Workers’ Comp. Appeal Bd. (Reese Masonry) (Pa. Cmwlth., No. 1162
C.D. 2016, filed August 24, 2017) (Schafer I), slip op. at 4.
               On remand, WCJ Yanity observed that the only additional evidence
offered was Claimant’s brief testimony at a December 2017 hearing for purposes of
clarifying the existing record. Claimant reiterated that “he felt that he never returned
to full duty work following his November 14, 2011 work injury[,]” that he never
returned to work after Employer’s December 2012 lay off, and that he had a separate
work injury in December 2012. (WCJ Yanity’s Jan. 12, 2018, Dec., F.F. No. 5.)
However, WCJ Yanity concluded that “[t]he credible and substantial medical
evidence of record in this matter conclusively demonstrates that Claimant’s


    2
       A claimant seeking reinstatement of benefits following a suspension of benefits must prove
that (1) through no fault of his own, his disability, i.e., earning power, is again adversely affected
by the work injury; and (2) the disability that gave rise to the original claim continues. Bufford, 2
A.3d at 558. The causal connection between the original work injury and the disability that gave
rise to compensation is presumed. Id.


                                                  3
disability was not a continuation of that which arose from his November 14, 2011
work injury, but rather, is attributable to an incident which occurred on Dec. 13,
2012.” (Id., C.L. No. 3.)
              In support of the January 2018 decision at issue, WCJ Yanity
referenced his July 2015 findings pertaining to Dr. Kramer and Claimant.3 In August
2013, Dr. Kramer conducted a full clinical examination of Claimant and accepted
his thorough history. WCJ Yanity credited Dr. Kramer’s testimony and found as
follows:
                     7(e). . . . Dr. Kramer explained that the typical
              course following a one-level fusion would be an initial
              return to light[-]duty work, then a transition to full[-]duty
              work. Dr. Kramer agreed that Claimant’s history shows
              that he did, in fact, transition from light[-]duty work to his
              regular duty job. Dr. Kramer agreed that Claimant
              continued performing the regular duty job until a
              subsequent incident in December 2012, after which time
              Claimant had an onset of low back and leg pain and did
              not return to regular duty. Dr. Kramer agreed that the
              December 2012 incident represented an aggravation of
              Claimant’s underlying condition.
                     7(f). Dr. Kramer explained that his light[-]duty
              restrictions for Claimant were placed upon him primarily
              because of the December 2012 incident on the roof.
                      ....
                    9. I find the testimony offered by Dr. Kramer to be
              credible. [He] took a thorough history from Claimant and
              conducted a full clinical examination, which was basically
              normal with the exception of some mild tenderness in the
              lumbar region and reduced extension on range of motion.

    3
      On remand, WCJ Yanity incorporated all but Conclusion of Law No. 2 from his July 2015
decision. In Conclusion of Law No. 2, the WCJ determined that Claimant failed to prove that his
condition worsened or that he could no longer perform his regular duty job as a roofer due to the
disability attributable to the recognized November 2011 work injury.


                                               4
            Based upon the history presented to him, Dr. Kramer
            concluded that following Claimant’s L5-S1 fusion surgery
            resulting from the November 14, 2011 work injury,
            Claimant returned to light[-]duty work in September
            2012, then transitioned to full[-]duty work. Claimant’s
            light[-]duty restrictions after December 13, 2012 are
            attributable to the incident which occurred on that day
            according to Dr. Kramer. . . . Thus, I find that any loss of
            earning power sustained by Claimant on and after
            December 13, 2012 is attributable to the incident which
            occurred on that day . . . .

(WCJ Yanity’s July 15, 2015, Dec., F.F. Nos. 7(e) and (f) and 9; R.R. at 354a)
(emphasis added).
            Turning to Claimant, WCJ Yanity found his testimony to be credible
only in part. Specifically, WCJ Yanity found:

                    10. I . . . accept Claimant’s testimony that he
            returned to light[-]duty work following his lumbar fusion
            surgery, and eventually transitioned to full duty as a
            roofer, though he did refrain from carrying heavy items. I
            also accept [his] testimony that after a separate incident on
            December 13, 2012, he experienced pain in his left hip and
            sought treatment . . . . I further accept [his] testimony that
            he was laid off about 10 days after the incident along with
            other crew members. I reject [his] testimony, however, to
            the extent that he feels that he remains disabled as a result
            of the work injury of November 14, 2011. [His] credibility
            . . . is undermined by the fact that he is under no active
            treatment, takes no medication, and has not seen a
            physician for his back complaints since August 2013. He
            has applied for employment in order to be eligible for
            Unemployment Compensation benefits.                      [He]
            acknowledged that he was released to perform regular
            duty work without restrictions in May 2013, and thus, his




                                          5
               testimony regarding ongoing disability is hereby
               rejected.[4]

(Id., F.F. No. 10; R.R. at 354a-55a) (footnote added).
               Accordingly, WCJ Yanity determined that Claimant failed to establish
any recurrence of a loss of earning power attributable to the November 2011 work
injury. In so determining, WCJ Yanity found:

                      Dr. Kramer’s credible testimony established that
               following the work injury, Claimant had successful fusion
               surgery, then returned to light[-]duty work before
               transitioning to his regular unrestricted work. Although
               Dr. Kramer placed permanent light[-]duty restrictions
               upon the Claimant, Dr. Kramer acknowledged that these
               restrictions were placed as a result of a separate incident
               on December 13, 2012.

(Id., F.F. No. 11; R.R. at 355a.) In addition, WCJ Yanity reiterated that WCJ Getty’s
previous adjudication of the claim petition alleging a December 2012 work injury
prohibited relitigation of that claim or an award of benefits for disability resulting
from that incident. The Board affirmed and Claimant’s petition for review followed.
               Claimant proffers eight issues for review. However, they exceed what
he preserved on appeal and any potential follow-up issues due to remand. As we
stated in Schafer I, Claimant’s two arguments on appeal were that the Board erred
in affirming the WCJ’s decision where the WCJ applied the wrong burden of proof
and based his decision on an erroneous finding that Claimant had returned to work
at full duty. Schafer I, slip op. at 2. In Schafer I, we declined to address Claimant’s

    4
       Claimant testified that Dr. Oliver-Smith released him to full-duty status, with no restrictions,
in late April 2013. (March 14, 2014 Hearing, Notes of Testimony “N.T.” at 32-33; R.R. at 254a-
55a.) In addition, Claimant received unemployment compensation benefits from May 1, 2013 to
December 28, 2013. (Board’s March 25, 2019, Dec. at 3.) This is consistent with Claimant’s
testimony to that effect. (March 14, 2014 Hearing, N.T. at 17-18; R.R. at 239a-40a.)


                                                  6
second argument, focusing on the correct burden of proof. We now consider (1)
whether the WCJ erred in determining that Claimant failed to meet his burden of
establishing that his earning power was once again adversely affected by his
disability and that such disability was a continuance of that which arose from the
November 2011 work injury; and (2) whether the WCJ based his decision on an
erroneous finding that Claimant had returned to work at full duty and, if so, the effect
of doing so.
               By way of analysis, WCJ Yanity concluded that Claimant failed to meet
his burden because the evidence supported a determination that his disability
emanated from the December 2012 incident and not from the November 2011 work
injury.   Notwithstanding the applicability of res judicata to the previously
adjudicated incident, the salient point here is that Dr. Kramer failed to opine that
Claimant’s disability emanated from the work injury. Pursuant to Bufford, Claimant
had to establish that his earning power was once again adversely affected by his
November 2011 work injury and that the disability that gave rise to that original
claim continued. In that respect, Dr. Kramer connected any disability to an incident
that was previously adjudicated against Claimant.
               As for whether WCJ Yanity based his decision on an erroneous finding
that Claimant returned to full duty following the November 2011 work injury, we
note WCJ Yanity’s acceptance of “Claimant’s testimony that he returned to light[-]
duty work following his lumbar fusion surgery, and eventually transitioned to full
duty as a roofer, though he did refrain from carrying heavy items.” (WCJ Yanity’s
July 15, 2015, Dec., F.F. No. 10; R.R. at 354a.) Consistent with this finding,
Claimant testified that he returned to work full time but refrained from lifting




                                           7
shingles and placing ladders and scaffolding. (April 23, 2015, Hearing, N.T. at 11;
R.R. at 275a.)
               Moreover, Claimant acknowledged that the patient history that he
provided to Dr. Kramer indicated a return to light-duty work and an eventual
transition to his regular job. (Id., N.T. at 13; R.R. at 277a.) In addition, Claimant
conceded that he never explained to Dr. Kramer that he was not lifting heavy things
such as shingles. (Id.) To the extent that Dr. Kramer relied on Claimant’s history
in focusing on the December 2012 incident as opposed to the November 2011 work
injury, the onus was on Claimant to provide an accurate narrative. Finally, Claimant
conceded that he was released to full duty as of May 2013.5 (WCJ Yanity’s July 15,
2015, Dec., F.F. No. 10; R.R. at 354a-55a.)
               Accordingly, we affirm.



                                            _____________________________________
                                            BONNIE BRIGANCE LEADBETTER,
                                            Senior Judge




   5
       See supra note 4 and accompanying text.


                                                 8
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Donald Schafer,                    :
                       Petitioner  :
                                   :
            v.                     :    No. 452 C.D. 2019
                                   :
Workers' Compensation Appeal Board :
(Reese Masonry),                   :
                       Respondent :


                                ORDER


           AND NOW, this 13th day of January, 2020, the order of the Workers’
Compensation Appeal Board is hereby AFFIRMED.



                                  _____________________________________
                                  BONNIE BRIGANCE LEADBETTER,
                                  Senior Judge
