The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Newman & Company, Inc., :
Petitioner : No. 1261 C.D. 2022
:
v. : Submitted: October 10, 2023
:
Mark Warner (Workers’ :
Compensation Appeal Board), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: November 30, 2023
Newman & Company, Inc. (Employer) petitions for review of the October
27, 2022 decision of the Workers’ Compensation Appeal Board (Board), which
affirmed the Workers’ Compensation Judge’s (WCJ) April 8, 2022 decision granting
Mark Warner’s (Claimant) Claim Petition (Petition) and ordering Employer to pay
Claimant: (1) temporary total disability (TTD) benefits as of April 23, 2021, and
ongoing at the rate of $994.98 per week; (2) ten percent interest on all past due
compensation; (3) all reasonable, necessary, and related medical expenses for the work
injuries; and (4) Claimant’s counsel’s litigation costs. Upon careful review, we affirm
in part and reverse and remand in part.
I. Facts and Procedural History
On May 14, 2021, Claimant filed the Petition, asserting that on October
28, 2020, he sustained a right leg wound with complications that, he explained,
developed from driving a cab-over truck 12 to 15 hours a day, and required
hospitalization. (R.R. at 2a, 14a-15a.) Claimant alleged in the Petition that he gave
verbal notice to the safety manager on the same day the injury occurred. Id. at 2a.
Claimant requested partial disability benefits from October 28, 2020, until April 23,
2021, and total disability benefits ongoing from April 24, 2021. Id. at 4a. Employer
denied a work-related injury in a Notice of Compensation Denial dated May 27, 2021.
Claimant’s Deposition Testimony
Claimant testified by deposition that he worked for Employer as a truck
driver, driving twelve to fifteen hours per day without getting out of the truck. Id. at
14a. He explained that he was seated over the covered engine, which “gave off over
200 degrees of heat during the course of the day.” Id. at 15a. He explained that
whenever he drove, his right leg was up against the heat of the engine all day. Id. at
20a. Claimant explained that at the end of October he started noticing pain and a “little
knot” on the outside of the middle of his calf. Id. at 18a. On October 28, 2020,
Claimant was not feeling “quite [himself]” because of excruciating pain in his leg,
however he finished his shift. Id. at 16a. He showed his leg wound to safety manager,
John Foerst (Foerst). Claimant did not tell Foerst that his leg wound was work related.
Id. at 37a. Foerst sent Claimant to Employer’s panel physician, Dr. Neill Mallis, who
prescribed an antibiotic and released him back to work. Id. at 18a-19a. The panel
physician did not relate Claimant’s wounds to work conditions. Claimant continued to
work. Id. at 18a. About one month later, a “second bump” formed on the right leg
below his knee. Id. at 21a. At the end of April 2021, he was completely unable to walk
on his right leg, and he could not climb in and out of the truck. Id. at 22a. He had a
large open wound from his ankle to his mid-calf in the shape of the letter “C” and sharp
pain in his right leg. Id. at 23a-25a. On April 28, 2021, Claimant went to the
2
emergency room (ER), reported that he had wounds on his leg, and was hospitalized
for four days with a sepsis infection. Id. at 24a. Claimant’s last day of work for
Employer was April 23, 2021. Id. at 28a. On April 1, 2021, he started working for
Health Care Builders, a healthcare organization through which he provided home care
to his wife, eight hours per week. Id. at 31a-32a. He explained that there was a short
period of time between April 1, 2021 and April 23, 2021, during which he worked for
Employer full time and Health Care Builders part time. Id. at 32a.
Claimant testified that his wounds are still open, and that he still
experiences excruciating pain during the day and at night. Id. at 30a. He is currently
treating with Dr. Robert Sing who performs wound care and laser therapy to prevent
blood clots. Id. at 27a-28a. Claimant asserted that he is no longer able to drive a truck
because he has to both elevate and exercise his leg, which is not conducive to non-stop
driving. Id. at 44a.
Dr. Sing’s Deposition Testimony
Claimant presented the deposition testimony of his treating physician, Dr.
Sing, board certified in family medicine, sports medicine, and emergency medicine.
Dr. Sing first saw Claimant on May 13, 2021. He had two large ulcerations on his right
lower leg, with drainage. Id. at 79a. He opined, based on his review of the ER medical
records, that Claimant was a diabetic. Id. at 83a. Dr. Sing also noted that the infectious
disease doctor at the hospital, Dr. Fumberg, documented that Claimant noted he was a
truck driver. He also noted that in October 2020, Claimant was driving the truck and
the heat of the truck on his leg eventually caused the bumps on his leg to breakdown
and form large ulcerations that continued to progress over the following six months.
Dr. Sing explained that diabetic patients have a lack of sensation on the skin and lack
of circulation in their extremities. Id. at 85a. He opined that when Claimant was
3
burned, he did not feel the pain when it was occurring, which is called peripheral
diabetic neuropathy. Id. Because there was no blood supply, the wounds became
septic. Id. at 86a. Dr. Sing opined that the wounds and stasis ulceration were caused
by the engine burns sustained on October 28, 2020. Id. at 93a-95a. Dr. Sing testified
that it is not a coincidence that these wounds were on his right lower extremity exactly
at the site on the side of his leg that was next to the hot engine of the truck. The burn
on the top of Claimant’s leg started a cascade of events that could not heal because of
an underlying diabetic condition. He stated that Claimant was not fully recovered from
the work injuries and cannot return to his pre-injury position. Id. at 95a.
John Foerst Deposition Testimony
Employer presented the deposition testimony of the corporate safety
director, Foerst, who testified that on October 28, 2020, he sent Claimant for a fitness-
for-duty evaluation. Id. at 132a. Although an infection or sore was found behind
Claimant’s right leg during the evaluation, Claimant was cleared to continue driving
full time without restrictions. Id. Claimant showed Foerst his wound but he did not
indicate that it was work related. Id. at 133a. Foerst took the surface temperature of
the cab that covers the engine of Claimant’s truck sometime after the litigation began.
Id. After the truck ran continuously for probably over ten hours, the temperature
registered at 100.58 degrees Fahrenheit. Id. at 140a-41a. Foerst opined that Claimant’s
outside of right knee could have possibly leaned against the engine compartment, but
not the back of his knee. Id.
Claimant stopped working around April 23, 2021. Id. On May 4, 2021,
Claimant called Foerst to let him know that he was in the hospital for an infected leg
wound but did not indicate that it was work related. Id. Foerst first learned about
Claimant’s workers’ compensation claim when he received the Petition in the mail. Id.
4
135a-36a. On September 28, 2021, Foerst sent Claimant a letter offering him his pre-
injury job. Id. at 139a. Claimant did not respond. Id. At the time of the deposition,
the job was available, and Claimant remained an employee of Employer. Id. at 138a-
39a.
Steven Boc Deposition Testimony
Employer also presented the deposition testimony of Steven Boc, M.D.,
(Dr. Boc), a podiatrist, board certified in foot and ankle surgery and podiatric medicine.
Id. Dr. Boc evaluated Claimant on September 15, 2021. Id. at 185a. After reviewing
medical records and examining Claimant, Dr. Boc believed Claimant had a venous
stasis ulcer on his right lower leg. Id. at 196a. He opined that the stasis ulcer on
Claimant’s calf was not caused by hot temperatures or a burn, but caused by chronic
lymphedema, morbid obesity, diabetes, and persistent swelling in the lower extremity.
Id. He stated that Claimant did not sustain a work-related burn injury. Id. at 197a. He
testified that laser treatment is not “providing any further therapeutic care for the ulcer
site at present.” Id. at 201a. He opined that Claimant could return to work. Id. at 200a.
Employer submitted a video showing temperature readings taken from
within Claimant’s assigned work truck. Id.
Claimant’s Live Testimony
Claimant testified live before the WCJ on January 11, 2022, to provide the
WCJ with an update of his condition. He testified that his wound is still open, but it is
healing, and that he still treats with Dr. Sing twice a week. (Transcript of Proceedings,
1/11/22, at 7.) He testified that he is no longer working for Health Care Builders and
that he stopped working there in September 2021. Id. at 8. He testified as of September
2021, he has had no source of income. Id. He testified that there was a temperature
gauge on the dashboard that read the actual temperature of the engine, and back when
5
he was diving, the temperature was between 180 and 200 degrees. Id. at 9-10. He
testified that his right calf was against the engine compartment of the truck he was
driving between 12 to 15 hours a day. Id. at 10.
WCJ’s Findings and Decision
On April 8, 2022, the WCJ issued a Decision and Order granting the
Petition. The WCJ credited Foerst’s testimony that he was not aware of the work-
related nature of Claimant’s injury until receipt of the Petition. The WCJ credited
Claimant’s testimony about the heat conditions against his right leg while driving for
Employer, his ongoing symptoms related to the burn injury he sustained while working
rendering him disabled as of April 23, 2021, and his inability to work. The WCJ noted
that that area of his leg was close to the heat from the engine. The WCJ concluded that
Claimant was driving the truck for Employer, and there was a temperature gauge on
the dashboard that read the actual temperature of the engine as between 180 and 200
degrees. Claimant’s right lower calf was burned from being up against the engine
compartment of the truck that he drove for Employer. On a given day, his leg was
against the engine compartment up to 15 hours per day.
The WCJ also credited Dr. Sing’s opinion that Claimant sustained stasis
ulceration status post burn wounds of the right lower extremity as a result of his work
injury, and that he has not fully recovered so as to be able to return to work. Finally,
the WCJ stated that Dr. Boc provided a thorough account for his medical determination;
however, the weight of the evidence supports Dr. Sing’s findings and medical records
reviewed by both physicians. (WCJ Decision, 4/8/22, at 12.)
The WCJ concluded that “Claimant satisfied his burden of proving by
credible competent evidence that he sustained a work-related injury in the course and
scope of his employment on October 28, 2020, in the form of stasis ulceration status
6
post burn wounds of the right lower extremity.” Id. at 13. Relevant to our analysis
here, the WCJ made the following finding of fact with regard to Claimant’s temporary
concurrent employment with Health Care Builders:
s. Claimant was concurrently employed by [Health] Care
Builders, which is healthcare work for his wife. He started
working for [it] on April 1, 2021. There was a period of time
where he was working for [] Employer full[]time and for
[Health] Care Builders part time. The job involved assisting
his wife because she has Lupus and essentially independent
but requires some care.
t. Claimant was working for [Health] Care Builders and
Employer at the same time, he was paid $11.00 per hour and
worked 8 hours per week for [Health] Care Builders. Since
he stopped working for Employer, he now works 40 hours
per week for [Health] Care Builders. Claimant explained that
the reason he is currently capable of working for [Health]
Care Builders but not [] Employer is because his wife is
homebound, and she does not work. All he has to do is sit
with her and monitor her. It is not overworking him to help
her with her needs.
(Finding of Fact (FOF) No. 3(s) and (t)) (citations omitted).
The WCJ also made the following finding regarding notice to Employer:
8. This [WCJ] finds Claimant’s testimony about his ongoing
symptoms related to the burn injury he sustained while
working, rendering him disabled as of April 23, 2021, as well
as his inability to return to work, to be credible . . . .
[C]laimant’s first diagnosis of the work-related nature of
this injury appears to be April or May 2021. [C]laimant
provided notice to [E]mployer by [the P]etition on May 14,
2021.
(WCJ Decision, 4/8/22, at 12) (emphasis added).
7
The WCJ directed Employer to pay total disability benefits as of April 23,
2021, and ongoing, which he deemed entirely attributable to the work injury at the rate
of $994.98 per week, as well as work-related medical benefits. Id. at 14.
Employer appealed to the Board, arguing that the Petition should have
been denied and dismissed because Claimant failed to prove that he gave timely notice
of his alleged work-related injury within 120 days from October 28, 2020, i.e., when
he first noticed the wound, pursuant to Section 311 of the Workers’ Compensation Act
(Act).1 Employer further argued that the WCJ’s Decision was not supported by
substantial competent evidence. Employer alternatively argued that should the Board
affirm the award of benefits, Employer is entitled to an offset from the wages Claimant
earned from his employment with Health Care Builders.
In [FOF] 3(s), the WCJ erroneously refers to Claimant as
“concurrently employed by [Health] Care Builders.” The
WCJ appears to have intended this in the colloquial sense
rather than the legal sense, as Claimant’s earnings from
[Health] Care Builders are not included in the average
weekly wage calculation. No allegation is made that
Claimant was concurrently employed at the time of injury.
Claimant did not start working for [Health] Care Builders
until April 2021, months after his alleged work injury.
1
Act of June 2, 1915, P.L. 736, § 311, as amended, 77 P.S. § 631. Section 311 provides:
Unless the employer shall have knowledge of the occurrence of the
injury, or unless the employe or someone in his behalf, or some of the
dependents or someone in their behalf, shall give notice thereof to the
employer within twenty-one days after the injury, no compensation
shall be due until such notice be given, and, unless such notice be given
within one hundred and twenty days after the occurrence of the injury,
no compensation shall be allowed.
77 P.S. § 631. This section also sets forth a discovery rule for instances in which the nature of the
injury or its causal relation to employment is not readily apparent. See id. Pursuant to such provision,
the notice period does not commence until the employee “knows, or by the exercise of reasonable
diligence should know, of the existence of the injury and its possible relationship to his employment.”
Id.
8
However, the WCJ did not make any factual findings
regarding Claimant’s actual earnings from [Health] Care
Builders so that Employer may properly offset any
benefits that may be due and owing.
(On-Line Appeal, 4/13/2022, at 3) (emphasis added).
Finally, Employer argued that litigation costs were not recoverable and
were not payable.
On October 27, 2022, the Board affirmed the WCJ’s Decision. After
review of the testimony, the Board determined the WCJ’s findings concerning the
cause of Claimant’s injury and timely notice of injury to Employer were supported by
substantial evidence. The Board acknowledged that the WCJ had not expressly stated
the standard applied regarding timely notice of injury, but nevertheless concluded that
the discovery rule applies to Claimant’s injury. (Board Decision, 10/27/22, at 6.) The
Board agreed that the 120-day notice provision of Section 311 of the Act, in cases
involving other than occupational diseases, began to run in this case when Claimant
knew or should have known that he was injured, and that the injury was work related,
regardless of whether the injured worker is disabled by the injury. Id. The Board
observed that, per the WCJ’s findings, Claimant did not know of the work-relatedness
of his October 28, 2020 injury until he met with Dr. Sing on May 13, 2021. The Board
found that the notice was timely because Claimant filed the Petition (thus giving
Employer notice of injury) on May 14, 2021. Id. The Board further explained, relying
on this Court’s decision in Tapco Inc. v. Unemployment Compensation Board of
Review, 650 A.2d 1106, 1109 (Pa. Cmwlth. 1994):
Although [Employer] counters that Claimant should have
known about his injury and its purported relationship to his
employment in October 2020, the fact that one party to a
proceeding may view testimony differently is not grounds for
9
reversal if substantial evidence supports the lower tribunal’s
findings.
(Board Decision, 10/27/22, at 7.)
Next, the Board determined that the WCJ did not err in failing to offset
the total disability benefits Employer was directed to pay ongoing from April 23, 2021,
with the wages Claimant earned from Health Care Builders beginning on April 1, 2021.
[Employer] next argues that, although the WCJ concludes
that Claimant was “concurrently employed by [Health] Care
Builders,” the WCJ did not include Claimant’s earnings from
[Health] Care Builders in the average weekly wage
calculation. By way of background, no allegation was made
that Claimant was concurrently employed at the time he was
injured. [Employer] concedes that “Claimant did not start
working for [Health] Care Builders until April 2021, months
after his alleged work injury.” The use of the word
“concurrent” in the Decision is found in the WCJ’s summary
of Claimant’s testimony. Claimant had testified by
deposition as to his employment with [Health] Care Builders
after having been asked “did you have a concurrent
employer?” Claimant then testified that he started working
for [Health] Care Builders on April 1, 2021. Claimant
testified that he worked for [Employer] full[]time and
[Health] Care Builders part[]time at some point. Claimant
later testified live that he stopped working for [Health] Care
Builders in September. This testimony was elicited in
response to counsel saying “you talked about having
concurrent employment with [Health] Care Builders. Are
you still working with Care Builders?” Claimant confirmed
that he was not working for [Health] Care Builders on
October 28, 2020.
Contrary to the way the term was used during Claimant’s
testimony, concurrent in the term “concurrent employer”
under the Act means “at the time” of the injury. See Freeman
v. [Workmen’s Compensation Appeal Board] (C.J.
Langenfelder & Son), 527 A.2d 1100 (Pa. Cmwlth. 1987).
10
“Indeed, it is well accepted that an employee must be
concurrently employed at the time of the injury for the
employee to receive workmen’s compensation benefits
calculated on the basis of both employments.” Id. at 1102.
Section 309(e) provides, in relevant part, that “[w]here the
employe is working under concurrent contracts with two or
more employers, his wages from all such employers shall be
considered as if earned from the employer liable for
compensation.” Kurpiewski v. [Workers’ Compensation
Appeal Board] (Caretti, Inc.), 202 A.3d 870, 887 (Pa.
Cmwlth. 2019) (citing 77 P.S. § 582(e)). “However, for a
claimant’s employment with a second employer to qualify as
‘concurrent employment,’ the claimant had to have been
working for both employers “at the time of the [work]
injury.” Id. (citing Freeman[, 527 A.2d] at 1101-02)
(emphasis in original). Because the instant Claimant testified
that he worked only for [Employer] on October 28, 2020, the
WCJ did not err in failing to offset the total disability benefits
[Employer] was directed to pay ongoing from April 23, 2021
with the wages Claimant earned from [Health] Care Builders
beginning on April 1, 2021. See id.
(Board Decision, 10/27/22, at 8-10.)
Finally, because Claimant prevailed in part, the Board did not vacate the
award of litigation costs or the approval of the counsel fee agreement between Claimant
and his counsel. Id. This appeal2 by Employer followed.
II. Issues
Employer raises the following issues: (1) whether the WCJ erred by not
denying and dismissing the Petition because Claimant failed to prove that he gave
2
Our review is limited to determining whether an error of law was committed, whether
necessary findings of fact were supported by substantial evidence, and whether constitutional rights
were violated. Department of Transportation v. Workers’ Compensation Appeal Board (Clippinger),
38 A.3d 1037 (Pa. Cmwlth. 2011).
11
Employer notice of his alleged work-related injury within 120 days of October 28,
2020; (2) whether the WCJ’s Decision was supported by substantial competent
evidence; and (3) whether the WCJ erred by failing to allow Employer to take an offset
for Claimant’s post-injury earnings from Health Care Builders.
III. Discussion
A. Notice
Employer argues that the Claimant’s Claim Petition should have been
denied because the notice Claimant gave of his injury was not timely under Section
311 of the Act. Employer argues that both the WCJ and the Board erroneously used
the date Dr. Sing told Claimant of the relationship between the heat from the truck
engine and his injuries to “start the clock” on the deadline to provide notice.
Timeliness of a claimant’s notice to his employer is mandatory for
recovery of workers’ compensation benefits. Duquesne Light Co. v. Workmen’s
Compensation Appeal Board (Kraft), 416 A.2d 651 (Pa. Cmwlth. 1980). Section 311
of the Act sets forth the time limitation on notice of injury to the employer and when
the time for giving notice begins to run. It states, in relevant part:
Unless the employer shall have knowledge of the occurrence
of the injury, or unless the employe or someone in his behalf
. . . shall give notice thereof to the employer within twenty-
one days after the injury, no compensation shall be due until
such notice be given, and, unless such notice be given within
one hundred and twenty days after the occurrence of the
injury, no compensation shall be allowed . . . .
77 P.S. § 631.
The discovery rule under Section 311 permits that “employees who suffer
an injury that is not readily and immediately ascertainable have the same rights under
the Act as those employees who sustain an injury . . . as long as they proceed with
12
reasonable diligence.” Sell v. Workers’ Compensation Appeal Board (LNP
Engineering), 771 A.2d 1246, 1251 (Pa. 2001). The standard of reasonable diligence
requires “a reasonable effort to discover the cause of an injury under the facts and
circumstances present in the case.” Id. (quoting Cochran v. GAF Corp., 666 A.2d 245,
249 (Pa. 1995)) (internal quotations omitted). While reasonable diligence is an
objective standard, “it is sufficiently flexible to take into account the different
capacities people have to deal with the circumstances they confront.” Id. In order to
trigger the running of the 120-day period for notice, a claimant must have: (1)
knowledge or constructive knowledge, (2) of a disability which, (3) exists, (4) results
from an occupational disease or injury, and (5) has a possible relationship to the
employment. Allegheny Ludlum Corp. v. Workers’ Compensation Appeal Board
(Holmes), 998 A.2d 1030, 1034 (Pa. Cmwlth. 2010).
The claimant bears the burden of establishing he gave the employer timely
notice of the injury under Section 311. City of Philadelphia v. Workers’ Compensation
Appeal Board (Williams), 851 A.2d 838 (Pa. 2004). The question of the timeliness of
that notice is generally one of fact. Katz v. Evening Bulletin, 403 A.2d 518 (Pa. 1979).
As a result, where the WCJ determines a claimant gave an employer timely notice, we
must determine whether substantial evidence supports that finding. Carrier Coal
Enters. v. Workmen’s Compensation Appeal Board (Balla), 544 A.2d 1111 (Pa.
Cmwlth. 1988).3
3
This Court’s role is not to reweigh the evidence or review the credibility of the witnesses.
Sell, 771 A.2d at 1251. The WCJ has exclusive province over questions of credibility and evidentiary
weight. A&J Builders, Inc. v. Workers’ Compensation Appeal Board (Verdi), 78 A.3d 1233, 1238
(Pa. Cmwlth. 2013). The WCJ may accept or reject the testimony of any witness, including a medical
witness, in whole or in part. Id. Whether the record contains evidence to support findings other than
those made by the WCJ is irrelevant; the critical inquiry is whether the record supports the findings
actually made. Id. at 1238. We must view the evidence in the light most favorable to the prevailing
party and give it the benefit of all inferences reasonably deduced therefrom. Id. at 1239.
13
Based on the facts found by the WCJ here, we conclude Claimant met his
burden of proving he gave Employer notice of his injury as required under Section 311.
The WCJ found: “[C]laimant’s first diagnosis of [the] work[]related nature of this
injury appears to be April or May 2021. [C]laimant provided notice to [Employer] by
[P]etition on May 14, 2021.” (WCJ Decision, 4/8/22, at 12.) In other words, the WCJ
found that Claimant only learned his injuries were work related when Dr. Sing so
informed him in April or May of 2021. This finding is directly supported by the
testimony of Claimant and Foerst. Claimant testified that his leg wounds started as one
painful knot or bump underneath the skin, and over time it eventually opened and
became ulcerated. On October 28, 2020, Claimant told Foerst about the first wound
and showed it to him. Foerst sent Claimant to Employer’s panel physician, Dr. Mallis,
who “was unable to substantiate a work-related type [of] injury.” (R.R. at 193a.) Dr.
Mallis stated that Claimant had “an infection or an abscess of this right leg, but the
doctor was unclear of the origin of the infection.” Id. Dr. Mallis noted that it was an
infection of the right leg, non-work related, as there was not a direct correlation
between the infection and the activity at work. Id. at 194a. Claimant was returned to
full duty and the infection was deemed not work related. Id.
Although Employer contends that the WCJ should have concluded that
Claimant knew or should have known that his first leg wound was work related on
October 28, 2020, we note that neither Foerst nor Dr. Mallis, at that time, connected
the wound to Claimant’s work conditions either. Claimant’s symptoms were not
necessarily particular to a prolonged exposure to high heat from the truck engine, but
could have been the result of any number of non-compensable conditions. This was
borne out by the competing opinions of the medial experts. Moreover, Claimant’s
wounds, which started as lumps and knots underneath his skin, were not an obvious or
14
common injury apparent to the ordinary claimant.4 The WCJ found, based on his
observations of Claimant’s live testimony and his credibility determinations, that the
first time Claimant knew or could have known it was work related was when Dr. Sing
made the connection in his diagnosis of Claimant in April or May 2021. Because the
WCJ is the ultimate factfinder in workers’ compensation cases, and the issue of whether
a claimant has complied with Section 311 is a question of fact, Storer v. Workers’
Compensation Appeal Board (ABB), 784 A.2d 829, 831-32 (Pa. Cmwlth. 2001), taking
the totality of the circumstances into consideration, the WCJ’s findings were proper
and supported by substantial evidence, and we will not disturb those findings now.
B. Substantial Competent Evidence/Reasoned Decision
Reasoned Decision
Employer next argues that the WCJ’s decision as to the mechanism of
injury was not reasoned because the WCJ did not articulate verifiable reasons for
credibility determinations and did not adequately explain the basis for accepting certain
portions of medical expert opinions while rejecting other portions. Employer argues
that the WCJ did not give a thorough explanation as to why he found Claimant and Dr.
Sing credible. Specifically, the WCJ offered the following statement about Claimant’s
4
Further, considering the flexibility of the reasonable diligence standard, we note that
Claimant, a layperson, also believes he contracted diabetes mellitus through the open wound. He
testified on cross-examination at the January 11, 2021 hearing in this regard, as follows:
Q. You made a statement just a moment ago that this injury caused you
to have diabetes. Is that your understanding of how your diabetes
started?
A. Yes. Through the open wound. Yes.
Q. Okay. And it’s your belief that you get diabetes through an open
wound?
A. From what I understand, yes.
(Hearing Transcript, 1/11/2021, at 13-14.)
15
credibility: “Claimant’s testimony and the fact that his complaints are entirely
consistent with the testimony and opinions of Dr. Sing, who this [WCJ] also finds
credible. [Dr. Sing’s] opinion is supported by [C]laimant’s credible testimony.” (FOF
No. 8.) In other words, Employer contends that in the WCJ’s view, the credibility of
Claimant’s testimony depended on the credibility of Dr. Sing, and vice versa, which is
the antithesis of the “actual objective basis” standard required of a WCJ when
reviewing deposition testimony.
Section 422(a) of the Act states that all parties are “entitled to a reasoned
decision containing findings of fact and conclusions of law based upon the evidence as
a whole which clearly and concisely states and explains the rationale for the decisions
so that all can determine why and how a particular result was reached.” Section 422(a)
of the Act, 77 P.S. § 834. Accordingly, the WCJ “shall specify the evidence upon
which the [WCJ] relies and state the reasons for accepting it in conformity with this
section.” Id. “The reasoned decision requirement has been interpreted to mean that,
when a WCJ reviews deposition testimony, the WCJ must state an ‘actual objective
basis’ for the credibility determination.” Michel v. Workers’ Compensation Appeal
Board (U.S. Steel Corp.), 966 A.2d 643 (Pa. Cmwlth. 2009). A decision is reasoned
“if it allows for adequate review by the [Board] without further elucidation and if it
allows for adequate review by the appellate courts under applicable review standards.”
Daniels v. Workers’ Compensation Appeal Board (Tristate Transport), 828 A.2d 1043,
1052 (Pa. 2003).
Here, Claimant testified before the WCJ about his work injury, his
symptoms, and his notice to Employer. He testified that he drove the truck 12 to 15
hours per day. He explained that he was seated over the covered engine, and that his
right leg was up against the heat of the engine all day. The WCJ had the opportunity
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to assess Claimant’s demeanor and found him credible. “[A] WCJ’s observation of a
witness’s demeanor alone is sufficient to satisfy the reasoned decision requirement.”
Amandeo v. Workers’ Compensation Appeal Board (Conagra Foods), 37 A.3d 72, 77
(Pa. Cmwlth. 2012). That Employer does not agree with the WCJ’s credibility decision
does not mean the WCJ’s decision was not a reasoned one.
Moreover, the WCJ identified the evidence he accepted, the evidence he
rejected, and his reasons therefor. The WCJ’s explanations for his credibility
determinations do not leave the Court imagining “why the WCJ believed one witness
over another.” Dorsey v. Workers’ Compensation Appeal Board (Crossing
Construction Company), 893 A.2d 191, 196 (Pa. Cmwlth. 2006). The WCJ’s decision
provides a reasonable basis for our appellate review and, thus, satisfies the reasoned
decision requirement of Section 422(a) of the Act.
Substantial Evidence
Substantial evidence is such relevant evidence as a reasonable mind might
accept to support a finding of fact. Berardelli v. Workmen’s Compensation Appeal
Board (Bureau of Personnel State Workmen’s Insurance Fund), 578 A.2d 1016, 1018
(Pa. Cmwlth. 1990). In evaluating a substantial evidence challenge, the Court may not
reweigh the evidence or credibility determinations. Bethenergy Mines, Inc. v.
Workmen’s Compensation Appeal Board (Skirpan), 612 A.2d 434, 437 (Pa. 1992).
Additionally, “[the Court] 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.” A & J Builders, Inc. v. Workers’ Compensation Appeal Board (Verdi), 78
A.3d 1233, 1239 (Pa. Cmwlth. 2013). Finally, “[i]t is irrelevant whether the record
contains evidence to support findings other than those made by the WCJ; the critical
inquiry is whether there is evidence to support the findings actually made.” Lahr
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Mechanical v. Workers’ Compensation Appeal Board (Floyd), 933 A.2d 1095, 1101
(Pa. Cmwlth. 2007) (quoting Minicozzi v. Workers’ Compensation Appeal Board
(Industrial Metal Plating, Inc.), 873 A.2d 25, 29 (Pa. Cmwlth. 2005)).
Employer argues that the WCJ’s reasons for crediting Dr. Sing over Dr.
Boc are not supported by substantial evidence. It submits that the only doctor who
could explain, using objective clinical observations, the difference between a burn and
a diabetic ulceration was Dr. Boc. Employer also contends that there is no evidence in
the record which a reasonable person would accept as adequate to conclude that
Claimant burned his leg on a 100-degree plastic engine cover.
Employer’s arguments about the sufficiency of the evidence go to the
weight and credibility of the evidence. “[T]he WCJ, as fact-finder, has complete
authority over questions of witness credibility and evidentiary weight.” Verizon
Pennsylvania Inc. v. Workers’ Compensation Appeal Board (Mills), 116 A.3d 1157,
1162 (Pa. Cmwlth. 2015). As laid out above, the WCJ credited Dr. Sing’s opinion that
the wound started from a burn which then became ulcerated because Claimant was
unable, due to his diabetes, to feel the pain and diminished blood circulation. It is
irrelevant that Dr. Boc testified otherwise. The WCJ “is free to accept or reject the
testimony of any witness, including a medical witness, in whole or in part.” Williams
v. Workers’ Compensation Appeal Board (USX Corp.—Fairless Works), 862 A.2d 137,
143 (Pa. Cmwlth. 2004). The WCJ credited Dr. Sing’s explanation over Dr. Boc’s of
how the leg wounds came about and developed, a determination within his exclusive
province as factfinder.
Regarding the physical conditions of the truck cab where Claimant sat,
evidence showed that the engine itself heated up to 180 to 200 degrees while Claimant
drove the truck. The WCJ simply believed that Claimant’s leg wounds were caused by
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prolonged contact with the hot engine cover for 12 to 15 hours a day five days a week,
and was not swayed by Employer’s temperature tests.
Employer also takes issue with the WCJ’s finding, in crediting Claimant,
that “Claimant has consistently reported a similar history of his mechanism and
progression of injury to the medical providers he has seen.” (FOF No. 8.) Employer
argues that a review of Dr. Mallis’ October 2020 records indicates that Claimant could
not identify a particular mechanism of injury. Therefore, according to Employer, the
evidence does not support a credibility determination based on a purported consistency.
This argument is also unavailing. Although Claimant may not have mentioned the heat
from the truck engine to Dr. Mallis, the medical records from the ER did document that
Claimant noted he was a truck driver and in October 2020 he was driving the truck and
the heat of the truck on his leg eventually caused the bumps on his leg to breakdown
and he formed large ulcerations that continued to progress over the following six
months. Those medical records were sufficient to support the WCJ’s finding.
C. Benefits Calculation
The Board determined that Health Care Builders did not qualify as a
“concurrent employer” because it was not Claimant’s employer at the time of injury.
Accordingly, it concluded that the WCJ did not err in failing to offset Claimant’s
benefits by his income from Health Care Builders.
Employer argues that the Board misconstrued the issue it raised on appeal.
Employer asserts it did not claim that Health Care Builders was a concurrent employer
and did not challenge the WCJ’s calculation of Claimant’s average weekly wage based
on Health Care Builders being a concurrent employer. It concedes that Health Care
Builders was never a “concurrent employer.” Rather, it had argued to the Board that
the WCJ erred by failing to allow Employer to take an offset for Claimant’s post-
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injury earnings from Health Care Builders. Employer notes this is a different issue
than the one the Board addressed in its opinion.
In support of its argument that it is entitled to an offset credit, Employer
argues, Claimant’s post-injury earnings go to the extent of his disability (i.e., loss of
earning power) and thus should have been considered in calculating and awarding only
partial disability benefits from April to September 2021, rather than the total
disability benefits the WCJ awarded. Employer argues that here, the WCJ found that
Claimant worked 40 hours per week for Health Care Builders, earning $11.00 per hour,
after he stopped working for Employer, and that despite Claimant’s return to work full
time earning $440.00 per week, the WCJ ordered Employer to pay temporary total
disability as of April 23, 2021, and ongoing at the rate of $994.98 per week. Id. at
274a-75a. Employer points out that the WCJ did not make any factual findings
regarding Claimant’s post-injury earnings with Health Care Builders, or order Claimant
to provide Employer with his earnings information to allow the calculation of an offset.
Thus, it argues, the WCJ’s decision to order payment of total disability benefits rather
than partial disability benefits is not supported by sufficient substantial evidence,
insofar as any benefits may be found to be due and owing.
A claimant is only entitled to wage loss benefits based on a loss of time-
of-injury earning power, which is measured by the average weekly wage as of the date
of injury. Section 306(a) of the Act, 77 P.S. § 511. Section 306(a)(2) of the Act
provides: “Nothing in this act shall require payment of total disability compensation
benefits under this clause for any period during which the employe is employed or
receiving wages.” 77 P.S. § 511(2). Under Section 306(b) of the Act, a claimant is
entitled only to partial disability benefits if he retains any “earning power” after a work
injury. 77 P.S. § 512(b). Partial disability benefits may be measured by comparing the
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claimant’s earnings before the injury occurred to the claimant’s post-injury earnings.
Scott v. DeAngelis, 281 A.2d 172, 176 (Pa. Cmwlth. 1971) (affirming Board’s finding
that the claimant remained partially disabled and its conclusion that his disability
caused a loss of earnings measurable by the difference between his earnings before the
injury in full-time heavy labor and his earnings after the injury as a part-time taxicab
driver). Here, Claimant had earnings from Health Care Builders post-injury from April
2021 to September 2021, but the WCJ and the Board awarded total, not partial,
disability benefits during that period. Employer raised this issue in its appeal to the
Board. See Certified Record, Item No. 7. But the Board did not address this issue
beyond stating that Health Care Builders was not a concurrent employer and therefore
those earnings should not be counted in calculating Claimant’s compensation, which
was not the issue raised by Employer. Because the Board left the question of the extent
of Claimant’s loss of earning power completely unanswered and whether his benefits
should be adjusted accordingly, we must reverse and remand.
IV. Conclusion
The Board’s decision is affirmed in part and reversed in part. The Board’s
decision is affirmed insofar as it affirmed the WCJ’s conclusion that Claimant provided
timely notice of his injury to Employer, that the WCJ’s decision was reasoned, and that
the WCJ’s credibility determinations were supported by substantial evidence. We
reverse on the issue of the total benefits awarded between April 2021 and September
2021. Claimant had earnings from Health Care Builders during that time, but the WCJ
and the Board awarded total and not partial disability benefits during that period. The
matter is remanded for consideration of whether Employer is entitled to a credit for
Claimant’s post-injury earnings consistent with this opinion.
________________________________
PATRICIA A. McCULLOUGH, Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Newman & Company, Inc., :
Petitioner : No. 1261 C.D. 2022
:
v. :
:
Mark Warner (Workers’ :
Compensation Appeal Board), :
Respondent :
ORDER
AND NOW, this 30th day of November, 2023, the Workers’
Compensation Appeal Board’s (Board) October 27, 2022 decision is hereby
AFFIRMED, in part, and REVERSED, in part, and this matter is REMANDED, in
part. The Board’s decision is affirmed insofar as it concluded that the notice
provided by Mark Warner to Newman & Company, Inc., was timely, that the
Workers’ Compensation Judge’s (WCJ’s) decision was reasoned, and that the
WCJ’s credibility determinations were supported by substantial evidence. We
reverse on the issue of the total benefits awarded between April 2021 and September
2021. Mark Warner had earnings from Health Care Builders during that time, but
the WCJ and the Board awarded total and not partial disability benefits during that
period. The matter is hereby remanded for consideration of whether Newman &
Company, Inc. is entitled to a credit for Mark Warner’s post-injury earnings
consistent with this memorandum opinion.
Jurisdiction relinquished.
________________________________
PATRICIA A. McCULLOUGH, Judge