The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jaime Brown, :
Petitioner :
:
v. :
: No. 465 C.D. 2024
City of Philadelphia (Workers’ :
Compensation Appeal Board), : Submitted: December 9, 2024
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MATTHEW S. WOLF, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION
BY JUDGE McCULLOUGH FILED: January 17, 2025
In this workers’ compensation case, Jaime Brown (Claimant) petitions for
review of the April 5, 2024 order of the Workers’ Compensation Appeal Board
(Board), which affirmed the March 3, 2023 order of a Workers’ Compensation Judge
(WCJ), denying Claimant’s Workers’ Compensation (WC) reinstatement and penalty
petitions. Claimant argues that the WCJ and Board erred in finding that Claimant did
not receive wages in lieu of compensation from his employer and in finding no
violation of the Pennsylvania Workers’ Compensation Act (Act).1 As set forth below,
we affirm the opinion and order of the Board.
I. FACTS AND PROCEDURAL HISTORY
This matter involves reinstatement and penalty petitions filed by
Claimant, a police officer employed by the City of Philadelphia (Employer). The
petitions allege that Employer unilaterally terminated Claimant’s benefits in January
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1-1041.4, 2501-2710.
of 2022 after accepting his claim related to Covid-19 by the payment of wages in lieu
of benefits. (WCJ Op. at 3.) Claimant alleges that in November of 2020, he had been
out of work for a physical injury and returned to work on November 3, 2020, on
restricted duty during which he stayed in the office and did paperwork. Claimant also
alleged that the next day, November 4, 2020, he experienced Covid-19-like symptoms
and that two weeks later, he was diagnosed with Covid-19. Claimant further contends
that he believes he contracted Covid-19 at work and that he informed his supervisor
that he contracted it while on the job. He was off work from November 4, 2020, until
April 1, 2022. (WCJ’s Findings of Fact No. 2(a)-(f).) Claimant did not file a claim
petition seeking to establish a work-related exposure to Covid-19 and ongoing
disability resulting from that exposure. While Claimant was absent from work, he
received full pay without depleting his sick or vacation time and was informed that his
time off was designated as “E-Time” (ET) or “excused time.” Claimant’s ET pay
ended on March 5, 2022. From March 5, 2022, until April 1, 2022, Claimant was paid
his normal salary through the use of his accrued vacation time. (WCJ’s Findings of
Fact No. 2(f)-(g).)
On January 28, 2022, Employer issued a Notice of Workers’
Compensation Denial (NCD) denying liability for Claimant’s alleged November 4,
2020 injury due to possible exposure to Covid-19. (Certified Record (C.R.) at 454.)
The NCD acknowledged that Claimant gave notice, or Employer knew, of Claimant’s
alleged exposure to Covid-19 on November 4, 2022, but denied that Claimant’s illness
was work related. Id. On April 13, 2022, Claimant filed reinstatement and penalty
petitions alleging that he sustained an injury causing decreased earning power, and that
Employer violated the Act. (C.R. at 7-13.) According to the petitions, Employer
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unilaterally terminated benefits in January 2022, after accepting a work-related Covid-
19 claim with the payment of wages in lieu of benefits. Id.
Hearings were held before a WCJ on May 16 and October 17, 2022.
(WCJ Op. at 3.) In a decision and order dated March 3, 2023, the WCJ denied the
petitions due to Claimant’s failure to meet his burden of proof. (WCJ’s Conclusions
of Law Nos. 2, 3.) The WCJ found that Employer’s use of its ET payroll designation
in this case did not constitute the payment of wages in lieu of workers’ compensation
benefits. (WCJ’s Findings of Fact No. 13.) With respect to Claimant’s penalty
petition, the WCJ found that Employer had proven that it never intended its use of ET
to be interpreted as an agreement to pay workers’ compensation benefits and also had
proven that its subsequent discontinuation of ET was never intended to be interpreted
as a unilateral discontinuation of workers’ compensation benefits. (WCJ’s Findings
of Fact No. 14.) Claimant appealed the denial to the Board.
On April 5, 2024, the Board issued an opinion and order affirming the
WCJ’s denial of Claimant’s reinstatement and penalty petitions. The Board found that
Claimant failed to show that the payments he received under the ET accounting
designation were intended to constitute wages in lieu of WC benefits. Rather, the
evidence established that “E-time” was made available to employees who were unable
to work for whatever reason. The Board cited the deposition testimony of Deputy
Director for Risk Management and Risk Manager Barry Scott. When asked whether
Risk Management meant the payment of ET to be construed as an acknowledgement
that a police officer had contracted Covid-19 at work, Mr. Scott answered “No.” (Bd.
Op. at 5.) Mr. Scott described ET as an administrative timekeeping category that was
not related to disability. If a police officer filled out a COPA II form2 and an
2
A COPA II is an accident, injury, and illness form used by the City of Philadelphia to report
work-related injuries. (Reproduced Record (R.R.) at R004a.)
3
investigation determined that the officer contracted Covid-19 at work, the officer
would have been put on a disability program or the injured-on-duty (IOD) program.
Id. at 6. The Board also reviewed a September 2, 2022 report from Dr. Michael
Silverman who disagreed with Claimant that Claimant could have developed
symptoms on November 4, 2020, due to an alleged exposure while working the day
before. Id. at 7.
The Board concluded that the WCJ’s finding that Employer did not intend
to pay WC benefits simply because Claimant reported experiencing Covid-19-type
symptoms was supported by credited testimony. The Board stated that “[b]ecause the
WCJ found, based on the totality of substantial, competent evidence, that the payments
made through the E-Time designation were not an acknowledgment that a police
officer contracted Covid-19 at work, we will not disturb this finding on appeal.” Id. at
9.
Claimant argued before the Board that the WCJ committed an error of
law by finding that Claimant failed to establish an entitlement to the reinstatement of
benefits after providing notice of a work injury. The Board stated that “[a]lthough the
establishment of notice is not a part of Claimant’s burden of proof in a reinstatement
or penalty petition, Claimant had not yet established a compensable claim when those
petitions were filed. Therefore, the onus was on Claimant to establish that [Employer]
had actual knowledge of a compensable injury under the Act.” Id. The Board then
found that Claimant did not establish that he had given timely notice of a work-related
injury to Employer. Id. at 11-12. As to this issue, the Board noted that “[i]n seeking
reinstatement, it is a claimant’s burden to establish that [he is] once again disabled
because the work injury has increased or recurred.” Id. at 12 n.14. Finally, the Board
denied Claimant’s penalty petition because it found that “Claimant failed to show that
4
Employer violated the Act by failing to ‘reinstate’ Claimant’s workers’ compensation
benefits since Claimant never received such benefits in the first instance.” Id. at 9.
II. ISSUES
Claimant raises three issues on appeal. First, Claimant asserts that the
Board and the WCJ committed errors of law when they denied Claimant the
reinstatement of benefits. He asserts that they did this by misapplying the law and
failing to find that Claimant’s benefits should be reinstated after wages were paid in
lieu of compensation. He also claims that Employer failed to file a timely Notice of
Compensation Denial. (Pet’r’s Br. at 5.) Second, Claimant argues that the Board and
the WCJ committed errors of law by departing from the humanitarian purpose of the
Act. Id. Finally, Claimant alleges that the Board and the WCJ committed errors of
law when they failed to find that Employer had violated the Act. Id.
III. DISCUSSION
Our review is limited to determining whether constitutional rights have
been violated, whether an error of law has occurred, and whether the WCJ’s findings
of fact are supported by substantial evidence. See Section 704 of the Administrative
Agency Law, 2 Pa.C.S. § 704; Crocker v. Workers’ Compensation Appeal Board
(Georgia Pacific LLC), 225 A.3d 1201, 1205 n.6 (Pa. Cmwlth. 2020). The law is well
settled that “[t]he WCJ has exclusive authority to act as fact finder, determine the
credibility of witnesses, and weigh the evidence. The WCJ’s findings will not be
disturbed if they are supported by substantial, competent evidence.” Rogele, Inc. v.
Workers’ Compensation Appeal Board (Hall), 198 A.3d 1195, 1204 (Pa. Cmwlth.
2018) (quoting Stepp v. Workers’ Compensation Appeal Board (Fairpoint
Communications, Inc.), 99 A.3d 598, 601 n.6 (Pa. Cmwlth. 2014)). On appeal, all
evidence must be construed in favor of the party successful below. Id.
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A. Payment of Wages in Lieu of Compensation
In order to determine whether payments made to an employee constitute
payments in lieu of compensation, it is the intent of the payment, not the receipt
thereof, which is relevant. See also Findlay Township v. Workers’ Compensation
Appeal Board (Phillis), 996 A.2d 111, 117 (Pa. Cmwlth. 2010). In this regard:
[T]he claimant bears the burden of demonstrating that the monies
were paid and received as compensation under the Act and not
as wages for employment. Such a fact must clearly appear in the
record. In meeting its burden of proof, the claimant must present
sufficient evidence to support a finding that the employer
intended to compensate an employee for loss of earning power
due to a work[-]related injury. Accordingly, the fact payments
were made to the employee while [he] or she was incapacitated
and not working cannot alone support the conclusion that
payments were made in lieu in compensation.
Steibing v. Workers’ Compensation Appeal Board (City of Hazleton), 665 A.2d 865,
869 (Pa. Cmwlth. 1995).
In the present case, the WCJ found that while Claimant filed
reinstatement and penalty petitions, he did not file an initial claim petition seeking to
establish a work-related exposure to Covid-19 and ongoing disability resulting from
that exposure. (WCJ Op. at 8.) Claimant, however, argues that the ET payments he
received from Employer after he notified Employer that he believed he had contracted
Covid-19 constituted wages in lieu of benefits under the Act.
Before the WCJ, the Board and this Court, Claimant relies on Mosgo v.
Workmen’s Compensation Appeal Board (Tri-Area Beverage, Inc.), 480 A.2d 1285
(Pa. Cmwlth. 1984), to argue that an employer’s failure to file a timely NCD indicates
that the employer has accepted liability for a work injury. However, as the WCJ
recognized, that case is distinguishable from the present case. In Mosgo, the employer
6
paid actual WC benefits under an expressed reservation, which the Court found to be
null and void. In this case, Employer made no such expressed reservation of benefits.
After considering the evidence presented to the WCJ and her findings of
fact, the Board affirmed the WCJ’s finding that Employer’s payment of ET was not
intended to constitute the payment of wages in lieu of workers’ compensation benefits.
(Bd. Op. at 9.) The Board stated that when examining whether payments constitute
wages in lieu of compensation, the intent behind the making of the payments is the
critical legal element, which must be determined by considering the evidence relevant
to the issue.
We agree and affirm the Board’s finding on this issue because the record
makes clear that there was substantial evidence to support the WCJ’s finding that
Claimant’s Employer never admitted liability for compensation benefits. Here, Mr.
Scott’s deposition testimony indicated that “E time, or excused time, is a timekeeping
tool that [] enables an employee to continue to receive their salary when they can’t or
they’re not at work for whatever reason.” (R.R. at R005a.) Mr. Scott further described
ET as an administrative time[]keeping category that was not related to disability. Id.
at 14. In addition, Employer presented the deposition testimony of Lieutenant Donald
Lowenthal, the infection control officer for the police department, who testified that if
an employee was not working because they reported they had Covid-19, that employee
would be recorded in the system as out on E or administrative time, regardless of
whether the reported exposure was deemed to be work related. (R.R. at R030a.)
Employer also submitted a report dated September 2, 2022 from Michael
Silverman, M.D., who is board certified in internal medicine with a subspecialty in
infectious diseases. Dr. Silverman stated that he did not think it was possible that
Claimant had developed Covid-19 symptoms on November 4, 2020 due to an alleged
work exposure that occurred on November 3, 2020. Dr. Silverman testified that
Claimant reported he had been diligent about wearing a mask, he participated in social
7
distancing, and he had no direct contact with any known Covid-19 positive individual
at work. The records also indicated no reports that Claimant had any Covid-19 positive
coworkers on the day he worked. Even if there had been a Covid-19 positive
individual with whom Claimant came into contact, it would be next to impossible to
develop symptoms so close to exposure, as the usual incubation period is between 4
and 5 days and can be between 2 and 14 days. Dr. Silverman also stated that in his
opinion there was no condition after November 16, 2020 preventing Claimant from
performing his job. (WCJ’s Finding of Fact No. 9(g) & (j).)
The WCJ found Claimant to be generally credible as to his Covid-19
symptoms on November 4, 2020, and his medical treatment (WCJ’s Findings of Fact
No. 10.) However, the WCJ did not credit Claimant’s testimony “to the extent of his
own opinion or belief that his Covid-19 symptoms were due to a work-related exposure
to the virus.” Id. The WCJ found the testimony of Mr. Scott and Lieutenant Lowenthal
to be the most persuasive and credible regarding the purpose of ET benefits, which
they testified was to protect the health and safety of police officers and other City
employees while protecting others from Covid-19 exposure. (WCJ Findings of Fact
Nos. 11 & 12.) In sum, we affirm the Board’s finding that “based on the totality of
substantial, competent evidence, that the payments made through the E-time
designation were not an acknowledgement that a police officer contracted Covid-19 at
work . . . .” (Bd. Op. at 9.)
B. Proper notice of the injury
Section 311 of the Act, 77 P.S. § 631,3 provides that, “[g]enerally, an
employer will not be obligated to pay workers’ compensation benefits unless a
3
Section 311 of the Act provides in pertinent part:
Unless the employer shall have knowledge of the occurrence of the
injury, or unless the employee or someone in his behalf, shall give notice
(Footnote continued on next page…)
8
claimant or representative gives notice of the work-related injury to the employer
within 120 days of the occurrence of the injury.” Allegheny Ludlum Corp. v. Workers’
Compensation Appeal Board (Holmes), 998 A.2d 1030, 1033 (Pa. Cmwlth. 2010).
Section 312 of the Act, 77 P.S. § 632, in turn, provides that the notice shall inform the
employer that the employee “received an injury . . . in the course of his employment .
. . .” Thus, the employer must not only be notified that the employee was injured but
must also be notified that the injury was job related. Rinehimer v. Workmen’s
Compensation Appeal Board, 444 A.2d 1339 (Pa. Cmwlth. 1982). Whether an
employee has given proper notice to his/her employer is a question of fact for the WCJ.
C. Hannah & Sons Construction v. WCAB (Days), 784 A.2d 860, 864 (Pa. Cmwlth.
2001).
While the WCJ did not make specific findings of fact regarding notice,
the Board found that Claimant had failed to prove that he provided notice to Employer
that he had developed Covid-19 at work. (Bd. Op. at 11.) The Board stated that
“[a]lthough the establishment of notice is not part of Claimant’s burden of proof in a
reinstatement or penalty petition, Claimant had not yet established a compensable
claim when those petitions were filed. Therefore, the onus was on Claimant to
establish that [Employer] had actual knowledge of a compensable injury under the
Act.” Id.
Claimant argues that there is nothing in the record to contradict his
testimony that he advised Employer that he believed he contracted Covid-19 at work.
thereof to the employer within 21 days after the injury, no compensation
shall be due until such notice is given, and, unless such notice be given
within [120] days after the occurrence of the injury, no compensation
shall be allowed.
77 P.S. § 631.
9
However, Claimant did not present testimonial evidence from his supervisor nor did
he fill out the COPA II form required by his Employer indicating that he had suffered
a work-related injury. As the Board noted, “Claimant failed to present the necessary
medical evidence to establish the causal relationship between his work activities and
disability . . . .” Id. at 13. The WCJ acknowledged that Claimant testified that he told
his supervisor that he contracted Covid-19 on the job. (WCJ’s Finding of Fact No.
2(d).) However, as noted by the Board, although the WCJ found Claimant’s testimony
to be generally credible, the WCJ did not credit Claimant’s testimony indicating that
his Covid-19 symptoms were due to work-related exposure to the virus. (WCJ’s
Finding of Fact No. 10.)4 We note that “[i]t is the claimant who bears the burden of
proof on the issue of notice. The notice requirement is met when the employer has
actual knowledge of a compensable injury.” City of Philadelphia v. Workmen’s
Compensation Appeal Board (Wills), 618 A.2d 1162, 1164 (Pa. Cmwlth. 1992)
(emphasis in original). “Where the nexus between the injury and its causal relationship
with work is not clear, the employer cannot be charged with notice that the injury was
work related.” Id. We therefore affirm the Board’s determination on this issue.
C. Penalty Petition
Finally, Claimant alleges that the WCJ and the Board erred by failing to
conclude that Employer violated the Act. Claimant contends that a WCJ is authorized
to impose penalties on an employer or insurer if there is a violation of the Act.
Claimant concedes that in considering a claim for penalties, the WCJ has the sole
discretion in deciding whether penalties are warranted and that here the WCJ
4
Although Claimant argues that his testimony that he advised his supervisor of contracting
Covid-19 on the job is uncontradicted, a WCJ is not required to accept uncontradicted testimony as
true. See Adamo v. Workmen’s Compensation Appeal Board (Jameson Memorial Hospital), 486
A.2d 1065, 1067 (Pa. Cmwlth. 1985).
10
specifically found that Claimant had failed to show that Employer had violated the
Act. (Pet’r’s Br. at 30.) Nevertheless, Claimant argues that by failing to find that
Employer violated the Act, the Board and the WCJ have disregarded the remedial and
humanitarian purposes of the Act by favoring the employer over the employee. Id.
Claimant argues Employer committed two violations of the Act. First,
Claimant contends that Employer’s failure to investigate Claimant’s claim of work-
related injury within 21 days of receiving notice of that work-related injury violated
the Act. (Pet’r’s Br. at 31.) Second, Claimant argues that Employer further violated
the Act when it stopped paying benefits to Claimant. Id. at 32. While Claimant does
not cite a provision of the Act for this last argument, we note that under Section 413(b)
of the Act, an insurer who unilaterally suspends, terminates or decreases payments of
compensation shall be subject to a penalty. 77 P.S. § 774.1. 5 Claimant requests as a
penalty for Employer’s violations of the Act that his benefits be reinstated from March
5, 2022 forward and that he be awarded a 50% penalty on all past due benefits due to
Employer’s violations of the Act.
We note that a claimant who files a penalty petition has the burden of
proving a violation of the Act. Allegis Group & Broadspire v. Workers’ Compensation
Appeal Board (Coughenaur), 7 A.3d 325 (Pa. Cmwlth. 2010). In the present case, the
WCJ specifically found that Claimant had failed to meet his burden of proving that
Employer violated the Act, rules, or regulations. (WCJ’s Conclusion of Law 3.) The
Board also considered these arguments and affirmed the WCJ’s denial of the penalty
petition. Because Claimant has not met his burden of proving a violation of the Act,
we likewise affirm the WCJ’s denial of the penalty petition.
5
This provision was added by the Act of February 8, 1972, P.L. 25.
11
IV. CONCLUSION
For the reasons discussed above, we affirm the Board’s order affirming
the denial of Claimant’s reinstatement and penalty petitions.
________________________________
PATRICIA A. McCULLOUGH, Judge
Judge Dumas did not participate in the decision for this case.
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jaime Brown, :
Petitioner :
:
v. :
: No. 465 C.D. 2024
City of Philadelphia (Workers’ :
Compensation Appeal Board), :
Respondent :
ORDER
AND NOW, this 17th day of January, 2025, the April 5, 2024 Order of
the Workers’ Compensation Appeal Board is AFFIRMED.
_______________________
PATRICIA A. McCULLOUGH, Judge