              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Murphy,                          :
                          Petitioner     :
                                         :
                   v.                    :
                                         :
Workers’ Compensation Appeal             :
Board (Upper Darby Township),            :   No. 1208 C.D. 2016
                      Respondent         :   Submitted: December 9, 2016


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                  FILED: March 28, 2017

             Michael Murphy (Claimant) petitions this Court for review of the
Workers’ Compensation (WC) Appeal Board’s (Board) June 21, 2016 order
affirming the Workers’ Compensation Judge’s (WCJ) decision granting Claimant’s
Petition to Review Compensation Benefits (Review Petition) in part and denying
Claimant’s Petition to Reinstate Compensation Benefits (Reinstatement Petition).
Claimant presents two issues for this Court’s review: (1) whether substantial evidence
supports the WCJ’s determination that the Agreement for Compensation
(Compensation Agreement) was not materially incorrect; and (2) whether the WCJ
erred by failing to award Claimant litigation costs. After review, we affirm.
             On October 31, 2011, Claimant sustained a work-related injury after he
tripped on steps and fell while employed by Upper Darby Township (Employer). By
a Notice of Temporary Compensation Payable (NTCP), which subsequently
converted to a Notice of Compensation Payable (NCP), Employer accepted
Claimant’s work injury as a right shoulder and a right shin contusion. Subsequently,
Employer issued the Compensation Agreement which provided that Claimant’s
disability for the October 31, 2011 work injury began on November 1, 2011 and
ended on March 3, 2013; Claimant returned to work on March 4, 2013 to his pre-
injury position and earnings without restrictions or residuals; and, Claimant’s WC
benefits were terminated as of March 4, 2013, in accordance with the WC Act (Act).1
               On July 2, 2013, Claimant filed the Reinstatement Petition alleging that
as of March 4, 2013, the Compensation Agreement is materially incorrect because
Claimant had not fully recovered from his work injury, and has not worked due to his
work injury since March 4, 2013. Employer denied the allegations. On March 17,
2014, Claimant filed the Review Petition alleging that the Compensation Agreement
contained an incorrect injury description and that the NCP should be amended to
include rotator cuff tear, proximal biceps tendon tear, labral tear, right shoulder sprain
and post-traumatic bursitis of the right shoulder. The Petitions were consolidated,
and hearings were held on August 26 and October 28, 2013, and on March 24, April
28 and May 27, 2014.
               On July 7, 2015, the WCJ granted Claimant’s Review Petition in part,
and amended his injury description to include a right shoulder rotator cuff tear, right
proximal biceps tendon tear, and a right shoulder sprain, denied the Reinstatement
Petition, but ordered that the Compensation Agreement be modified to read that
Claimant’s WC benefits were “suspended” as of March 4, 2013, rather than
“terminated.” WCJ Dec. at 20. The WCJ further directed that “inasmuch as the right
shin contusion is resolved, this condition be removed from the accepted description




      1
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
                                                 2
of injury.” Id. Claimant appealed to the Board. On June 21, 2016, the Board
affirmed the WCJ’s decision. Claimant appealed to this Court.2
              Claimant first argues that substantial evidence does not support the
WCJ’s determination that the Compensation Agreement was not materially incorrect
because it stated that Claimant returned to his pre-injury position on March 4, 2013
when he did not work that day because Employer sent him home; thus, it reflected
that his benefits were terminated when they should only have been suspended. We
disagree.
              Initially, Section 413 of the Act provides:

              A [WCJ] may, at any time, review and modify or set
              aside a[n NCP] and an original or supplemental
              agreement or upon petition filed by either party with the
              [D]epartment [of Labor and Industry], or in the course of
              the proceedings under any petition pending before such
              [WCJ], if it be proved that such [NCP] or agreement was
              in any material respect incorrect.

77 P.S. § 771 (emphasis added). Section 403 of the Act states, in relevant part:

              On or after the seventh day after any injury shall have
              occurred, the employer or insurer and employe or his
              dependents may agree upon the compensation payable to
              the employe or his dependents under this [A]ct; but any
              agreement made prior to the seventh day after the injury
              shall have occurred, or permitting a commutation of
              payments contrary to the provisions of this [A]ct, or
              varying the amount to be paid or the period during which
              compensation shall be payable as provided in this [A]ct,
              shall be wholly null and void. It shall be unlawful for any
              employer to accept a receipt showing the payment of
              compensation when in fact no such payment has been made.

77 P.S. § 731 (emphasis added).

       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).
                                                3
              Claimant cites Fulton v. Workers’ Compensation Appeal Board (School
District of Philadelphia), 707 A.2d 579 (Pa. Cmwlth. 1998), to support his position.
In Fulton, the claimant received total disability benefits of $285.30 per week prior to
April 9, 1992, pursuant to an NCP which acknowledged a work-related back injury
and a $427.95 wage loss. On April 9, 1992, the parties executed a stipulation that
provided for the reduction of the claimant’s benefits from total to partial disability
based on the parties’ agreement that the claimant was able to return to work
with only a $75.00 wage loss, yet also acknowledged that he remained out of work
and without income. The claimant also asserted that, as of April 9, 1992, the only
record evidence was his unrefuted testimony that he continued to suffer
residuals from his work injury, that he remained out of work and that he
continued to receive medical treatment related to his work injury. Thus, the
claimant contended that the stipulation was false or incorrect and was, therefore,
null and void. However, the WCJ found the claimant not credible and determined
that the claimant failed to prove that he was totally disabled as of April 9, 1992 when
the board granted the commutation.
              The Fulton Court held:

              Our review of the record reveals that the WCJ’s finding that
              [the c]laimant was fully recovered from his work-related
              injury as of December 11, 1990 was supported by
              substantial evidence mainly in the form of [the employer’s
              expert’s] testimony. Based on that finding, the WCJ was
              free to conclude that [the c]laimant was not totally disabled
              on April 9, 1992 when he agreed to the commutation of his
              benefits. Because [the c]laimant failed to show that the
              commutation agreement was contrary to the Act, the WCJ
              properly denied [the c]laimant’s reinstatement petition.

Fulton, 707 A.2d at 583.3

       3
        Although the WCJ treated the claimant’s argument as if he was asserting an incorrect
agreement under Section 413 of the Act, the claimant argued an illegal agreement under Section
                                              4
              Here, Claimant contends that the Compensation Agreement was
materially incorrect because it stated that he returned to his pre-injury position on
March 4, 2013 when, in fact, Employer sent him home that day. He further asserts
that the Compensation Agreement states that his WC benefits were terminated when
they were actually suspended. However, as in Fulton, the WCJ here found “Claimant
not to be credible.” WCJ Dec. at 16. Rather,

              [t]his [WCJ], having reviewed the evidence of record as a
              whole, hereby finds the testimony of [Arthur J. Gallagher’s4
              Vice President of WC claims] Cynthia Caslin [(Caslin)] to
              be credible and unrebutted by other evidence of record. Her
              testimony is also consistent with the documentary evidence
              that she produced which was attached to her deposition.
           The [WCJ], having reviewed the evidence of record as a
           whole, hereby finds the testimony of [Employer’s human
           resources’ assistant director] Amy Favretto [(Favretto)] and
           [Employer’s sanitation foreman] John Zahner [(Zahner)] as
           credible. These witnesses were consistent with each other
           and with other evidence of record. Moreover, as to the
           issues regarding Claimant’s return to work on March 4,
           2013, and the events thereafter, the [WCJ] finds each
           credible because as a supervisor and Assistant HR Manager,
           each has better knowledge of Employer’s policies and
           business practices than Claimant.
WCJ Dec. at 15-16.
              Specifically, Zahner testified that Claimant was released to return to
work on March 4, 2013 as far as his shoulder injury was concerned. See Notes of
Testimony (N.T.) February 11, 2014, Ex. D-1 at 11-12. He was not, however,
released to return to work from his non-work injuries, inter alia, Claimant’s ankle
surgeries.5 Accordingly, Zahner told Claimant he could not return to work until he


407 of the Act, 77 P.S. § 731. In the instant case, Claimant argued under both Sections 407 and 413
of the Act.
        4
          Arthur J. Gallagher is Employer’s WC insurance carrier.
        5
          Zahner explained that he “had known from [Claimant] telling him that he got both ankles
operated on.” N.T. February 11, 2014, Ex. D-1 at 12. Zahner further expounded: “Well, at that
                                                5
was released to return to work on all of his injuries. See N.T. February 11, 2014, Ex.
D-1 at 15, 17. Zahner further testified that on March 5, 2013 he recommended that
Claimant apply for leave under the Family and Medical Leave Act (FMLA)6, since it
did not appear that he would be returning to work. See N.T. February 11, 2014, Ex.
D-1 at 17-18.
              Moreover, Favretto testified:

              Q. [Brian S. Frantum, Esquire (Frantum)] [] What was your
              understanding of [Claimant’s] condition and ability to
              return to work on March 4, 2013?
              A. [Favretto] We received a note from his doctor that he
              was released to return to work for his shoulder, [WC]
              March 4, 2013. And he was going to return to work based
              on that. We did not ask him for that note. He brought it to
              us.
              Q. [] And what did you do with that information the[n]?
              A. I forwarded it onto [sic] our [WC] carrier, . . . and
              advised them that he would be returning to work. And they
              prepared the final check and the [WC] documents . . . .

N.T. February 11, 2014, Ex. D-2 at 9. With regard to the FMLA, Favretto related:

              Q. [] Did you receive a response from [Claimant] with
              regard to the [FMLA]?
              A. I did. His doctor returned the certification form, which
              was requested, essentially putting him on [leave under the
              FMLA] with a given date, an explanation of what his
              medical [sic] was, and generally the doctor will put [a]
              return-to-work date or an expected return-to-work date.
              ....


point I said, ‘how about your ankles?’ You know, ‘you had an operation on your ankle [sic]. Are
you qualified to do this work?’ Especially when he said he needed a cane. That he needed, you
know, clearance on that.” Id.
        6
          29 U.S.C. §§ 2601–2654.


                                              6
            Q. [] And did . . . Dr. Elia provide you with a reason why
            [leave under the FMLA] was necessary for [Claimant] at
            that time?
            A. Sure. In here he said that he has meniscus tears,
            cellulitis, abscess of his legs, and that he must undergo
            additional physical therapy and reconditioning.
            Q. And this was regarding his ankles or some such?
            A. Correct.
            Q. [] Is there – Did Dr. Elia mention anything about the
            shoulder injury that the Claimant had previously had?
            A. There was no mention of the [WC] shoulder injury. Or
            any injury.

N.T. February 11, 2014, Ex. D-2 at 13-15, Ex. 2.
            Finally, regarding Employer’s use of the word “terminated” in the
Compensation Agreement, Caslin explained:

            Q. [Frantum] Claimant has indicated that the word
            terminated is materially incorrect.
            Were you the one that put the word terminated in the
            [Compensation A]greement?
            A. [Caslin] Yes.
            Q. [] And does the word terminated reflect the current status
            of [Claimant’s WC] claim as you are administering it?
            A. No it does not.
            Q. Do you know why the word is included in this
            [Compensation A]greement?
            A. At the time we had a full release. . . .
            We took a look at the medical and continued to pay medical
            benefits.
N.T. April 25, 2014, Ex. D-3 at 10. Caslin further expounded:



                                           7
            Q. [Joseph Hutteman, Esquire] Ma’am, you indicated that
            the word termination was not the correct term to be used in
            this document, correct?
            A. Correct.
            Q. What you meant, I assume, was that his [WC] benefits
            were to be suspended?
            A. Yes, suspended.
            Q. You said nonetheless, that you had evidence of a full
            recovery.
            I am trying to figure [sic] whether you meant to say
            terminated or meant to say suspended.
                    [Frantum] I think what the witness said, and I could
            get the court reporter to read it back, was that there was a
            full release.
                   [Caslin] Right. There was a full release. I didn’t
             indicate full recovery.
Id. at 14 (emphasis added).
            The WCJ expressly opined:
            The [WCJ] hereby finds that the [Compensation
            Agreement] is not materially incorrect as Claimant claims.
            The [WCJ] finds that the inclusion of the word ‘terminated’
            was a simply word [sic] error and should be merely
            modified to read ‘suspended’ inasmuch as this accura[tely]
            reflects the current state of Claimant’s benefits claim.
            Moreover, the [WCJ] does not find it incorrect that
            Claimant returned to his pre-injury job, inasmuch as this
            accurately reflects the facts. Claimant did in fact return
            from the standpoint of his work injury, and did not remain
            working for reasons unrelated to his work injury.

WCJ Dec. at 18. The Board concluded: “These findings do have support in the
record.” Board Op. at 15. After a thorough review of the record, this Court agrees
with the Board that substantial evidence supports the WCJ’s determination.




                                         8
               Because a “[WCJ] may, at any time, review and modify or set aside . . .
an original . . . agreement . . . if it be proved that such . . . agreement was in any
material respect incorrect” and, here, the WCJ determined that the Compensation
Agreement was not materially incorrect as far as Claimant’s return to work and
modified the Compensation Agreement to accurately reflect that Claimant’s WC
benefits were suspended rather than terminated, we discern no error in the Board’s
order affirming the WCJ’s decision. 77 P.S. § 771.
               Claimant next argues that the WCJ erred by failing to award litigation
costs to Claimant for partially prevailing during the litigation because the WCJ
granted his Review Petition and amended the recognized work injury. We disagree.
               Section 440(a) of the Act7 provides:

             In any contested case where the insurer has contested
             liability in whole or in part, . . . the employe . . . , in whose
             favor the matter at issue has been finally determined in
             whole or in part shall be awarded, in addition to the award
             for compensation, a reasonable sum for costs incurred for
             attorney’s fee, witnesses, necessary medical examination,
             and the value of unreimbursed lost time to attend the
             proceedings: Provided, That cost for attorney fees may be
             excluded when a reasonable basis for the contest has
             been established by the employer or the insurer.
77 P.S. § 996(a) (emphasis added). However,
               the WCJ awarded Claimant no financial benefit beyond the
               medical expenses Employer previously agreed to pay.
               Under these circumstances, Claimant’s entitlement to
               medical benefits does not warrant an award of litigation
               costs. Cf. Amoratis v. Workers’ Comp. Appeal Bd.
               (Carolina Freight Carriers), 706 A.2d 368 (Pa. Cmwlth.
               1998) (an award of litigation costs is not warranted where a
               claimant received no financial benefit from litigation).




      7
          Added by Section 3 of Act of February 8, 1972, P.L. 25, as amended, 77 P.S. § 996.
                                                 9
Watson v. Workers’ Comp. Appeal Bd. (Special People in Ne.), 949 A.2d 949, 955-56
(Pa. Cmwlth. 2008). Similarly, in the instant case, the WCJ did not award Claimant
any financial benefit. Moreover, the WCJ concluded that “Employer ha[d] presented
a reasonable contest.” WCJ Dec. at 19. Accordingly, the Board properly affirmed
the WCJ’s decision not to award Claimant litigation costs.
            For all of the above reasons, the Board’s order is affirmed.

                                      ___________________________
                                      ANNE E. COVEY, Judge




                                         10
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Michael Murphy,                        :
                        Petitioner     :
                                       :
                  v.                   :
                                       :
Workers’ Compensation Appeal           :
Board (Upper Darby Township),          :   No. 1208 C.D. 2016
                      Respondent       :


                                     ORDER


            AND NOW, this 28th day of March, 2017, the Workers’ Compensation
Appeal Board’s June 21, 2016 order is affirmed.


                                     ___________________________
                                     ANNE E. COVEY, Judge
