The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Carlos Torijano, :
Petitioner :
:
v. : No. 1686 C.D. 2016
: SUBMITTED: April 13, 2017
Workers' Compensation Appeal :
Board (In A Flash Plumbing), :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE JULIA K. HEARTHWAY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION BY JUDGE HEARTHWAY FILED: August 30, 2017
Carlos Torijano (Claimant) petitions for review of the September 21,
2016 order of the Workers’ Compensation Appeal Board (Board) which affirmed
the workers’ compensation judge’s (WCJ’s) decision and order granting In A Flash
Plumbing’s (Employer) suspension petition. We affirm.
Claimant was employed by Employer as a plumber’s helper. (R.R. at
28.)1 On May 30, 2014, Claimant sustained an injury, which Employer’s notice of
compensation payable described as a low back strain. (R.R. at 10, see WCJ’s
Findings of Fact (F.F.) No. 1.) Subsequently, Employer filed a petition to suspend
compensation benefits alleging that Employer offered a specific job to Claimant
1
Although Claimant has not numbered the pages in the manner required by Pa. R.A.P.
2173, we will cite to them as numbered to avoid confusion.
which he refused. (WCJ’s decision at 3.) Claimant filed an answer denying the
material allegations, and hearings were held before the WCJ.
Employer offered the deposition testimony of Steven J. Valentino,
D.O., Claimant’s treating physician. Dr. Valentino testified that he first examined
Claimant on July 1, 2014. Dr. Valentino opined that during treatment, Claimant
could perform light duty work. Dr. Valentino last examined Claimant on August
19, 2014 and Claimant’s exam was completely normal. Dr. Valentino felt that at
that time, Claimant was fully recovered. (WCJ’s F.F. No. 2.)
Employer also offered the testimony of Robbin Nocella. Ms. Nocella
is a co-owner of Employer and performs administrative duties. Ms. Nocella
testified that Claimant returned to work on June 11, 2014 with a ten pound lifting
restriction. (WCJ’s F.F. No. 3a, R.R. at 97.) Ms. Nocella stated that Claimant
never complained that he was being given work he was not supposed to do.
(WCJ’s F.F. No. 3a, R.R. at 97.) Ms. Nocella also testified that she asked
Claimant to call in before jobs and when he left in order to direct him to
assignments and make sure he was getting light duty, as well as to keep track of his
hours. (WCJ’s F.F. No. 3b, R.R. at 98a, 105-06.) Ms. Nocella testified that
Claimant did not usually call in, which led to a reprimand. (R.R. at 98a, see WCJ’s
F.F. No. 3b.) Ms. Nocella testified that she asked Claimant to sign a paper that she
discussed the reprimand with him, and Claimant got upset. (R.R. at 99.) Claimant
did not show up for work after she talked to him. (R.R. at 99.) Ms. Nocella stated
that Claimant was not fired. (WCJ’s F.F. No. 3c, R.R. at 99.) She stated that later,
Claimant was “cleared” by his doctor but that Claimant never showed up after
2
being released to full duty, despite her sending him letters. (R.R. at 99, see WCJ’s
F.F. No. 3c.) She further stated that employment was available to Claimant even if
restrictions were necessary. (R.R. at 100.)
Robert Nocella, Employer’s vice-president also testified. Mr. Nocella
testified that he provided Claimant with light duty work doing “HVAC” because it
is lighter work than plumbing. (WCJ’s F.F. No. 4a, R.R. at 111.) He testified that
Claimant never complained that he was being asked to do more than permitted by
his restrictions or that the work was worsening his condition. (WCJ’s F.F. No. 4a,
R.R. at 112.) Mr. Nocella testified that he met with Claimant in September 2014,2
and Claimant told him that Ms. Nocella had asked Claimant to sign a letter
regarding his failure to call in as requested and to get to assignments properly.
(WCJ’s F.F. 4c, R.R. at 112-13.) Mr. Nocella testified that Claimant stated he
refused to sign the letter and quit because he was asked to sign the letter. (WCJ’s
F.F. No. 4b, R.R. at 113.) Mr. Nocella stated that work would still be available to
Claimant if he had not quit, even if he required light duty. (WCJ’s F.F. No. 4c,
R.R. at 114.)
Employer also offered the testimony of Mark Riley who is a master
plumber with Employer. Mr. Riley supervised Claimant when he returned to work
with restrictions. Mr. Riley testified that he did not ask Claimant to work beyond
his restrictions. (WCJ’s F.F. No. 5b, R.R. at 118.) Mr. Riley testified that
2
Mr. Nocella testified that when he arrived at a job site, Claimant was there speaking
with Mark Riley, an HVAC supervisor. It appears that Claimant went to the job site to return
money that Mr. Nocella loaned Claimant when he first got hurt. (R.R. at 111-13.)
3
Claimant did not complain that he had to do anything over his restrictions or that
his symptoms were getting worse. (WCJ’s F.F. No. 5c, R.R. at 118.)
Employer also offered the testimony of Kevin Kling, a master
plumber with Employer. Mr. Kling testified that he supervised Claimant while he
was working light duty. (WCJ’s F.F. No. 6a, R.R. at 125.) Mr. Kling testified that
he never asked Claimant to work beyond his restrictions. (WCJ’s F.F. No. 6b,
R.R. at 125.) Mr. Kling testified that Claimant never complained that work was
worsening his back condition. (WCJ’s F.F. No. 6b, R.R. at 126.)
Employer also submitted into evidence a copy of a letter dated July
23, 2014, from Ms. Nocella to Claimant. The letter stated that Employer had made
light duty available to Claimant but he had not come to work, and Employer was
“unsure of why we have not heard from you.” The letter also stated that Employer
could accommodate updated work restrictions based on Claimant’s July 22, 2014
exam with Dr. Valentino, as it had done in the past. (Certified Record, Exhibit D-
5.)
Claimant offered the deposition testimony of Christian I. Fras, M.D.,
who is a board certified orthopedic surgeon. Dr. Fras first examined Claimant in
December 2014. (WCJ’s F.F. No. 7a, R.R. at 180.) Dr. Fras diagnosed Claimant
with aggravation of degenerative disc disease and spondylosis as a result of the
work-related injury on May 30, 2014. (WCJ’s F.F. No. 7c, R.R. at 184.) Dr. Fras
also saw Claimant on January 5, 2015 at which time Claimant was still
symptomatic (see WCJ’s F.F. No. 7d, R.R. at 186-87), and again on May 18, 2015,
4
(R.R. at 189). Dr. Fras opined that Claimant is capable of doing light duty work
but is not fully recovered. (WCJ’s F.F. No. 7e, R.R. at 185-86, 188.)
Claimant testified that after he was injured, he returned to work in
June 2014. (WCJ’s F.F. No. 8b, R.R. at 39.) In his opinion, it was not light duty.
(WCJ’s F.F. No. 8b, R.R. at 39.) Claimant stated he did not tell the Nocellas that
the work was too heavy; it was light duty for them. (WCJ’s F.F. No. 8b, R.R. at
40.) Claimant claimed that he complained to Mr. Kling but not to the Nocellas.
(WCJ’s F.F. No. 8b, R.R. at 42-43.) Claimant stated he did not quit his job.
(WCJ’s F.F. No. 8c, see R.R. at 47.) Claimant admitted that he told the adjuster
that the only reason he was not working was because of a reprimand he received.
(WCJ’s F.F. No. 8c, R.R. at 47.) Claimant said he did not feel fully recovered.
(WCJ’s F.F. No. 8a.)
The WCJ credited the testimony of the Nocellas over that of Claimant
as to the reason Claimant is not working, because Claimant conceded that he told
the adjuster that the only reason he was not working was because of the reprimand
he received. (WCJ’s F.F. No. 10.) Additionally, the WCJ found that the fact that
Claimant discussed with Mr. Nocella that Ms. Nocella asked Claimant to sign the
letter regarding his lack of compliance with her request gave credence to the fact
that Claimant was upset by that and quit. (WCJ’s F.F. No. 10.) Additionally, the
WCJ credited the testimony of Mr. Kling and Mr. Riley over that of Claimant
regarding the work Claimant was given. (WCJ’s F.F. No. 11.) The WCJ found
that Ms. Nocella told Claimant not to do more than his restrictions allowed and that
Claimant did not complain. (WCJ’s F.F. No. 11.) The WCJ did not believe that
5
Claimant was asked to do more. (WCJ’s F.F. No. 11.) The WCJ found that
Claimant voluntarily quit. (WCJ’s F.F. No. 12.) The WCJ concluded that
Employer met its burden of establishing that work was available to Claimant and
that Claimant did not return of his own volition. (WCJ’s Conclusions of Law No.
3.) Accordingly, the WCJ granted Employer’s suspension petition. The WCJ
found, however, that Claimant was not fully recovered.
Claimant appealed to the Board, which affirmed. Claimant now
petitions this Court for review of the Board’s order,3 arguing that the Board erred
in suspending Claimant’s benefits because Employer offered no medical evidence
to establish that, as of the date Claimant allegedly quit, he was capable of returning
to his pre-injury job or that any suitable light duty employment was available.
Claimant contends that absent medical evidence by Employer identifying
Claimant’s physical abilities and available work within those abilities, Employer
failed to meet its burden.4
3
Our scope of review is limited to determining whether constitutional rights have been
violated, whether an error of law was committed and whether necessary findings of fact are
supported by substantial evidence. Johnson v. Workmen’s Compensation Appeal Board (Dubois
Courier Express), 631 A.2d 693 (Pa. Cmwlth. 1993).
4
Claimant maintains that this appeal does not implicate credibility determinations.
Contrary to Claimant’s position, however, the WCJ’s credibility determinations are relevant in
this appeal. It is well-settled that the WCJ is the sole arbiter of credibility, and she is free to
accept or reject the testimony of any witness in whole or in part. See Investors Diversified
Services v. Workmen’s Compensation Appeal Board (Howar), 520 A.2d 958, 962 (Pa. Cmwlth.
1987). Where the WCJ’s findings are supported by substantial evidence, they are conclusive on
appeal. Glass v. Workers’ Compensation Appeal Board (City of Philadelphia), 61 A.3d 318 (Pa.
Cmwlth. 2013).
6
In order to suspend benefits, the employer must establish either that
work within the claimant's restrictions was available or that the claimant's loss of
earnings was caused by something other than the work-related injury. Erisco
Industries, Inc. v. Workers’ Compensation Appeal Board (Luvine), 955 A.2d 1065,
1068 (Pa. Cmwlth. 2008). Here, Claimant’s argument ignores the latter means by
which an employer may meet its burden. Indeed, where “it is established that the
claimant's loss of earnings is no longer the result of the work-related disability, the
employer is not required to establish the availability of an alternative job within the
claimant's medical restrictions.” Edwards v. Workers’ Compensation Appeal
Board (Sear's Logistic Services), 770 A.2d 805, 808 (Pa. Cmwlth. 2001) (Edwards
I).5 Further, Pennsylvania courts “have consistently held that an employer does not
need to demonstrate that a claimant is physically able to work or that available
work has been referred to a claimant where the claimant has voluntarily retired or
withdrawn from the workforce.” Banic v. Workmen’s Compensation Appeal
Board (Trans-Bridge Lines, Inc.), 705 A.2d 432, 436 (Pa. 1997).
Here, there is substantial evidence indicating that Claimant’s loss of
earnings was a result of Claimant’s own actions, i.e., a voluntary quit, and not his
work-related injury. Specifically and significantly, Claimant admitted that he told
the adjuster that the only reason he was not working was because of a reprimand he
received. (R.R. at 47.) Additionally, the WCJ credited the testimony of the
Nocellas in this regard, including Mr. Nocella’s testimony that Claimant told Mr.
5
In Edwards I, the claimant was released to light duty work but was terminated when he
failed a drug test. This Court upheld the suspension of benefits, ruling that the claimant’s loss of
earnings was not the result of the work-related disability.
7
Nocella that Ms. Nocella had asked Claimant to sign a letter regarding the
reprimand and that Claimant refused and quit because he was asked to sign the
letter. (R.R. at 113.)
Additionally, there is substantial evidence that Claimant was actually
working within his physical restrictions at the time he stopped reporting to work.
Claimant admitted he returned to work in June 2014. Ms. Nocella also testified
that Claimant returned to work in June 2014 with restrictions. Both Mr. Riley and
Mr. Kling testified that Claimant was not asked to exceed his restrictions, and the
WCJ credited this testimony. Additionally, Claimant never complained that he
was being asked to exceed his restrictions.
We examine the record as a whole to see if it contains evidence a
reasonable person might find sufficient to support the WCJ’s findings. Edwards v.
Workers’ Compensation Appeal Board (Epicure Home Care, Inc.), 134 A.3d 1156,
1161 (Pa. Cmwlth. 2016). “Further, we must view the evidence in the light most
favorable to the prevailing party and give it the benefit of all inferences reasonably
deduced from the evidence.” Id. at 1161-62.
In sum, the WCJ made factual findings that accommodations for
Claimant’s physical limitations had been made by Employer and that Claimant had
not been requested to exceed those limitations. More significantly, however, is the
fact that Claimant admitted he left his job because of the reprimand. This fact is
critical. This Court has consistently held that when a loss of earnings is related to a
factor other than the work injury, the claimant’s benefits must be suspended. See
8
Edwards I. Under the facts of this case, additional medical evidence potentially
clarifying Claimant’s physical limitations is not required.
Because Employer established that Claimant’s loss of earnings is
related to a factor other than his work injury, i.e., his voluntary quit, Employer was
not required to establish the availability of an alternative job within Claimant’s
medical restrictions. See Edwards I. Further, where, as here, Claimant’s loss of
earnings is related to a factor other than his work injury, Claimant’s benefits must
be suspended. See Edwards I.
Accordingly, we affirm the order of the Board.
__________________________________
JULIA K. HEARTHWAY, Judge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Carlos Torijano, :
Petitioner :
:
v. : No. 1686 C.D. 2016
:
Workers' Compensation Appeal :
Board (In A Flash Plumbing), :
Respondent :
ORDER
AND NOW, this 30th day of August, 2017, the order of the Workers’
Compensation Appeal Board in the above-captioned matter is hereby affirmed.
__________________________________
JULIA K. HEARTHWAY, Judge