M. Gallagher v. Abstract Overhead Door Corp. (WCAB) ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mark Gallagher, :
Petitioner :
:
v. : No. 153 C.D. 2021
: Submitted: July 16, 2021
Abstract Overhead Door Corp. :
(Workers’ Compensation :
Appeal Board), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge1
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: February 17, 2022
Mark Gallagher (Claimant) petitions for review of the February 1, 2021 Order
of the Workers’ Compensation Appeal Board (Board), affirming the March 6, 2020
Decision and Order of a Workers’ Compensation Judge (WCJ), which granted in
part Claimant’s Claim and Review Petitions against Abstract Overhead Door Corp.
(Employer). In the Review Petition, Claimant sought to add injuries to the
description of his work-related injuries set forth in the Medical-Only Notice of
Compensation Payable (MO-NCP) issued by Employer. In the Claim Petition,
Claimant asserted he sustained a partial loss of earnings as a result of these work-
1
This case was assigned to the opinion writer before January 7, 2022, when Judge Cohn
Jubelirer became President Judge.
related injuries, thereby entitling him to partial disability benefits. The WCJ found
that Claimant suffered additional work-related injuries, including injuries to his right
arm and an aggravation to his preexisting neck and low back2 disc disease, but
concluded that Claimant had fully recovered from that aggravation as of June 12,
2019, the date of Claimant’s Independent Medical Examination (IME) with Leonard
Brody, M.D. (Dr. Brody). The WCJ further found that Claimant had not established
that his loss of earnings was related to the work-related injuries. On appeal,3
Claimant argues the Board erred in affirming the WCJ because the WCJ’s Decision
was not reasoned where it was based on credibility determinations that were arbitrary
and capricious, contrary to evidence of record, and not based on substantial,
competent evidence. Claimant further asserts that the WCJ’s finding of full recovery
was not supported by substantial, unequivocal medical testimony and that the WCJ’s
finding that Claimant sustained no loss of earnings attributable to the work injuries
is likewise not supported by substantial, competent evidence. Because the WCJ’s
credibility determinations were not arbitrary and capricious, the findings were
supported by substantial, competent evidence, and those findings supported the
WCJ’s Decision, we affirm.
I. BACKGROUND
A. History and Procedure
Claimant is part-owner of Employer with his wife (Wife), is Employer’s Chief
Executive Officer (CEO), and works for Employer, which installs residential and
commercial garage doors. On March 9, 2017, Claimant sustained injuries while
2
As the WCJ, the Board, and the parties use the terms “neck” and “back” or “low back”
interchangeably with the terms “cervical” and “lumbar,” we will do the same.
3
We have reorganized the issues for ease of discussion.
2
performing his work duties. (WCJ Decision,4 Finding of Fact (FOF) ¶ 3.) Employer,
through its workers’ compensation (WC) insurer, accepted an injury to Claimant’s
lower arm described as “Laceration [Cut, scratches, abrasions, superficial wounds,
calluses, wound by tearing]” and “(cut/puncture/scrape) object being lifted or
handled-the employee was lifting a door when his grip slipped and lacerated his right
arm” via the MO-NCP. (Reproduced Record (R.R.) at 1a (emphasis omitted).) On
January 11, 2019, Claimant filed the Claim and Review Petitions seeking partial
disability benefits from October 21, 2018, and to expand the injury description to
include: “lacerations of the right brachioradialis; right carpi radialis; right flexor
carpi ulnaris; right palm[a]ris longus and right lateral antebrachial cutaneous nerve;
post[-]traumatic carpel tunnel syndrome; status post[-]surgical repairs; aggravation
of cervical and lumbar disc disease; and[] bilateral upper extremity radiculopathy.”
(FOF ¶ 2.) Employer filed answers to the Petitions, denying the material allegations
within.
B. Proceedings Before the WCJ
The Petitions were assigned to the WCJ, who held hearings on March 26,
2019, August 13, 2019, and October 29, 2019. Employer and Claimant appeared
and were represented by counsel. Claimant offered his own testimony, the
deposition testimony of Christopher M. Belletieri, D.O., (Dr. Belletieri), and
documentary evidence regarding Claimant’s earnings. Employer presented the
deposition testimony of Dr. Brody.
4
The WCJ’s Decision is found at pages 247a through 256a of the Reproduced Record.
3
1. Claimant’s Evidence
Claimant testified to the following.5 Claimant has owned Employer for 30
years. Claimant and Wife operate out of an office in their home, and Wife does the
payroll. Claimant runs and operates Employer. Claimant performed any aspect of
the job, which entailed physically furnishing and installing service overhead doors,
including “burning, welding, rigging, mechanical disassembly and assembly of
overhead doors and docking work,” until October 2018. (R.R. at 27a-28a, 41a.) On
March 9, 2017, while lifting a garage door section made of glass, the door hit
something, and Claimant slipped and “tweaked” his back and neck. (Id. at 29a-30a.)
The glass struck Claimant and cut his arm, and Claimant underwent surgery that
same day. Jaykumar Patel, M.D. (Dr. Patel), performed the surgery and continued
to treat Claimant thereafter. (FOF ¶ 3; R.R. at 32a.) Dr. Patel referred Claimant to
physical therapy primarily focused on his arm. (R.R. at 32a.) Claimant reported his
arm, back, and neck injuries to Employer’s WC insurer at the time of the injury,
which sent Claimant to the Rothman Institute for diagnostic testing.
For several months following the incident, Claimant performed only
administrative work. However, after six or seven months, Claimant returned to
regular installation and maintenance work. (FOF ¶ 3; R.R. at 38a.) At the time of
the injury, Claimant’s salary was $2,800.00 per week, but “Claimant changed his
pay in September or October 2018” after medical restrictions of working 4 hours per
day, 20 hours per week were imposed by Dr. Belletieri, whom Claimant saw for the
5
Claimant’s March 26, 2019 testimony is found at pages 18a through 86a of the
Reproduced Record and is summarized in the WCJ’s Decision at Finding of Fact 3. Claimant’s
October 29, 2019 testimony is found at pages 213a through 231a of the Reproduced Record and is
summarized in the WCJ’s Decision at Finding of Fact 6.
4
first time on September 18, 2018, based on a referral from counsel.6 (FOF ¶¶ 3, 4.)
Claimant testified that he had consistent problems with his neck and back following
the March 9, 2017 incident. As of October 29, 2019, Claimant continues to treat
with Dr. Belletieri on Tuesdays and Thursdays, his condition and restrictions have
not changed, and he continues to earn $1400.00 per week working a part-time limited
schedule that now consisted of 25 to 30 hours per week performing administrative
duties. (FOF ¶ 6.)
Claimant further testified to being in a motor vehicle accident (MVA)
sometime around 2008 or 2010, in which he injured his neck and back. Claimant
received medical treatment but was discharged from treatment around 2010 or 2012.
On cross-examination, Claimant testified to the following. Claimant treated
with Dr. Patel until the summer of 2018, “was able to do his full job,” but was self-
limiting his work duties prior to coming under Dr. Belletieri’s care. (FOF ¶ 3.) At
that time, Claimant reduced his hours because Dr. Belletieri decided to reduce
Claimant’s work from 12 to 16 hours per day to 4 hours per day. Due to the reduction
in hours, Claimant and Wife decided to reduce Claimant’s salary from $2,800.00 per
week to $1,400.00 per week because he began delegating work to others and paying
them to do his job. (Id.; R.R. at 65a-66a.) He now does only clerical work at a desk
four hours per day five days each week, engages in some sales work, and visits job
sites to oversee the work “about once or twice a week,” but he does not bid on any
jobs. (FOF ¶ 3; R.R. at 68a.) Claimant’s clerical work consists of reviewing work
orders, jobs, purchase orders, purchases, and a schedule. (R.R. at 67a-68a.)
Claimant is presently not comfortable lifting anything. (Id.)
6
Claimant hired his attorney in the fall of 2018, and his attorney’s office referred Claimant
for additional medical treatment with Dr. Belletieri at Dedicated Doctors for Claimant’s arm, back,
and neck. (FOF ¶ 3.)
5
When Claimant was presented with an office note from Dr. Patel reflecting
that Claimant told Dr. Patel his arm was causing back and neck pain, “insist[ing]”
that Dr. Patel note this in Claimant’s medical records, which Dr. Patel refused to do
because he was not a neck and back specialist, Claimant stated that he could not
recall if he told Dr. Patel to write about the back and neck pain being caused by the
arm injury in his report. (FOF ¶ 3; R.R. at 135a.)7 Claimant testified that Dr. Patel
referred Claimant to Amy Schneider-Lyall, D.O. (Dr. Schneider-Lyall) to be
evaluated at the Rothman Institute. As to any MVAs, claims, and injuries which
occurred prior to March 9, 2017, Claimant clarified that he was involved in one
MVA in 2009 and one in May 2012, both of which resulted in neck and back injuries
requiring treatment, although only the May 2012 MVA required a magnetic
resonance imaging (MRI) test. (FOF ¶ 3; R.R. at 75a, 78a.) Claimant denied being
involved in an MVA in December 2015, and it was unclear if he remembered being
in an MVA in 1998. (FOF ¶ 3.)
Claimant also offered the deposition testimony of Dr. Belletieri, which was
taken on August 1, 2019.8 Dr. Belletieri is board certified in family practice and first
7
Dr. Patel’s office note stated:
He wanted me to state that the arm is causing his neck and back problems. I told
him that I am not a neck or back surgeon or [a] neurologist who takes care of this
problem or a neurosurgeon [who] takes care of this problem. It is outside my field
of competenc[y,] and he has already seen a neurosurgeon who he is referred to. . . .
After repeated explanation that I am not an expert in treatment of spinal problems[,]
he insist[ed] that I write him a note stating that the neck problems are secondary to
his arm injury. . . . He also then, in front [of] my secretary at the reception
window[,] insisted that I asked him to do press-up exercises. I categorically state
that I never asked him to do any such exercises.
(R.R. at 135a.)
8
Dr. Belletieri’s August 1, 2019 deposition testimony is found at pages 87a through 100a
of the Reproduced Record and is summarized in the WCJ’s Decision at Finding of Fact 4.
6
examined Claimant on September 18, 2018, after Claimant was referred to Dr.
Belletieri by Claimant’s attorney. Ten to 15% of Dr. Belletieri’s practice consists of
treating “patients with traumatic musculoskeletal injuries and other types of
musculoskeletal problems,” including “[c]ervical [injuries], lumbar injuries, upper
extremity [injuries], lower extremit[y injuries,]” and generally injuries to “[e]very
body part.” (R.R. at 88a.) Claimant presented a history of how the injuries occurred,
and that, when he slipped, “he also aggravated his neck and back pain.” (FOF ¶ 4.)
Claimant reported that he compensates for his injured right arm by using his left
more often, “which aggravates his neck and back pain.” (Id.) Dr. Belletieri
performed a physical examination of Claimant, which generally revealed muscle
spasms and pain with motion in Claimant’s neck and back, reviewed Claimant’s
medical records, and started Claimant on a physical therapy program at Dr.
Belletieri’s office. (FOF ¶ 4; R.R. at 90a-91a.) Dr. Belletieri diagnosed Claimant
with the injuries that Claimant sought to add to the MO-NCP. (R.R. at 90a.)
Dr. Belletieri agreed that the diagnoses were causally related to Claimant’s
March 9, 2017 injury and opined that the neck and back aggravation was the result
of Claimant compensating for his right arm injury by increasing the use of his left
arm. (Id. at 91a-92a.) In particular, the right arm injury led to a permanent change
in Claimant’s anatomy and level of functioning that “changed his body mechanics
entirely, [which] led to an aggravation of his preexisting neck and back problems
that now limits his ability to perform in several ways.” (FOF ¶ 4.) Further,
Claimant’s preexisting neck and back problems were initially aggravated at the time
of injury as a consequence of twisting his back. Regarding restrictions, Dr. Belletieri
“stated Claimant really was not able to do anything physical from the time of the
injury” and restricted Claimant from performing all of the physical requirements of
7
Claimant’s pre-injury job. (Id.) Dr. Belletieri limited Claimant to four hours of
performing administrative duties per day. (Id.) When asked when restrictions were
first placed on Claimant, Dr. Belletieri stated, “[y]ou know, because he was the
owner of the company[,] I don’t know when I originally actually placed official
restrictions on him because it was kind of his call.” (R.R. at 93a.)
On cross-examination, Dr. Belletieri admitted to not having seen Claimant
until September 18, 2018, a year and a half after the work injuries occurred. Dr.
Belletieri was shown a medical report from Dr. Schneider-Lyall, who saw Claimant
on two occasions, which Dr. Belletieri had never seen before. Dr. Schneider-Lyall’s
medical report from July 12, 2017, indicated that “there were no restrictions relevant
to work as it concerned Claimant’s cervical and lumbar spine” and that “[a]s of
January 9, 2018, Dr. Schneider-Lyall released Claimant to full-duty work without
restrictions as it concerned the neck and back.” (FOF ¶ 4.) Upon his review of the
reports, Dr. Belletieri indicated their focus was on Claimant’s neck and low back
injuries and acknowledged that while Dr. Schneider-Lyall opined that Claimant’s
underlying condition had been exacerbated by the work incident, Dr. Schneider-
Lyall did not impose any work restrictions related to those injuries. (R.R. at 96a-
97a.) Dr. Belletieri also acknowledged that the January 2018 report indicated that
Claimant had not attended any of the scheduled appointments since his visit in the
preceding July or pursued the recommended physical therapy. (Id.) Dr. Belletieri
was asked if he had seen Dr. Patel’s office note reflecting Claimant’s request to have
Dr. Patel opine in Claimant’s medical records that Claimant’s arm was causing his
back and neck pain. (Id. at 96a.) Dr. Belletieri explained that he did not review that
note, and, on redirect, stated that the note is not something typically seen in a medical
chart. (Id. at 99a.)
8
2. Employer’s Evidence
Employer submitted the September 19, 2019 deposition testimony of Dr.
Brody.9 Dr. Brody is a board-certified orthopedic surgeon, who “treat[s] patients
with back, neck, and upper extremity injuries . . . [o]n a routine basis.” (FOF ¶ 5;
R.R. at 142a-43a.) Dr. Brody performed an IME of Claimant on June 12, 2019. At
the IME, Claimant provided Dr. Brody with a history of the work incident and the
treatment received for Claimant’s injuries and acknowledged having had prior neck
and back complaints that Claimant asserted became worse after the incident. Dr.
Brody performed a physical examination of Claimant, including the cervical and
lumbar spine, which revealed overall normal results with no evidence of muscle
spasm or neurologic findings.
Dr. Brody also described Claimant’s right arm, and Dr. Brody reviewed three
MRI reports of Claimant’s cervical spine from 2010, 2017, and 2019 that showed
degenerative changes. (R.R. at 145a.) Dr. Brody “reviewed an [Electromyogram
(]EMG[)] study and reports from Dr. . . . Schneider-Lyall . . . [and] multiple notes
from the office of Dedicated Doctors,” which is Dr. Belletieri’s practice. (FOF ¶ 5;
R.R. at 145a-46a.) Dr. Brody reviewed Dr. Patel’s operative report in addition to
Dr. Patel’s office note reflecting Claimant’s request to have Dr. Patel state that the
arm injury was causing his neck and back problems. (R.R. at 145a, 185a-86a.) Dr.
Brody, based on his examination findings, Claimant’s history of the work injury, and
his review of the records, stated “that the diagnoses related to the work injury
included a normal exam in both the cervical and lumbar spine with no evidence of
cervical or lumbar radiculopathy.” (FOF ¶ 5; R.R. at 146a.) Further, Dr. Brody felt
9
Dr. Brody’s September 19, 2019 deposition testimony is found at pages 141a through
154a of the Reproduced Record and is summarized in the WCJ’s Decision at Finding of Fact 5.
9
Claimant’s right arm had reached maximal medical improvement. (R.R. at 146a-
47a.)
Dr. Brody found no evidence of residual injury regarding Claimant’s cervical
and lumbar spine, and, therefore, by the time of Dr. Brody’s IME, Dr. Brody
determined that Claimant had recovered from any neck or back injuries that he
possibly suffered as a result of the March 9, 2017 injuries. (FOF ¶ 5; R.R. at 146a.)
Dr. Brody placed some restrictions on physical activity on Claimant’s right arm, no
physical restrictions on the left arm, and no restrictions on the number of hours
Claimant could work in a day. Dr. Brody opined that supervisory activity would fit
well with Claimant’s restrictions. Dr. Brody disagreed with Dr. Belletieri’s opinion
that Claimant’s injuries “consist of aggravation of pre[]existing cervical and lumbar
disc problems” because Dr. Brody “found no evidence of any such residual injury,”
including carpal tunnel syndrome, or that Claimant had suffered cervical
radiculopathy. (R.R. at 147a.) On cross-examination, Dr. Brody acknowledged that
he did not see Claimant until June 2019 and could not specifically say “to a degree
of certainty” whether Claimant sustained an aggravation of the preexisting
degenerative disc disease, but he opined that if Claimant did sustain such an
aggravation, it had resolved by the time of Claimant’s June 12, 2019 IME. (FOF
¶ 5; R.R. at 151a.)
C. The WCJ’s Decision
On March 6, 2020, the WCJ issued the Decision setting forth findings of fact
reflecting the factual and procedural background stated above and making the
following credibility determinations:
8. This Judge has reviewed and considered the entire testimony of
Claimant. Claimant is found to be credible only to the extent of his
10
ongoing restrictions with his right arm based on the testimony of Dr.
Brody. Otherwise, Claimant is found to be not credible. As co-owner
of [Employer] with his [W]ife[,] it is completely within the discretion
of Claimant to determine his compensation. Claimant continued to be
paid his regular salary of $2,800.00 per week for a year and a half
following the work injury until it was cut in half in October 2018 when
Claimant first consulted with Dr. Belletieri, a doctor that his attorney
referred him to. Claimant is not credible that he was only able to
perform the job duties of a “clerk” for four hours per day because of his
work injury. Given Claimant’s knowledge and experience as the owner
of [Employer] for 30 years and based on the credible medical evidence
in this case[,] Claimant was clearly capable of continuing to supervise
the work performed by his employees[ and] take care of sales and
bidding, among other duties that did not require heavy lifting or even
physical activity. Claimant admitted at the October 29, 2019 hearing
that not only was he able to increase his hours, despite his doctor not
releasing him for more work, but he also admitted it was not necessary
for [Employer] to hire any additional personnel to take on what he
claims to be a substantial reduction [in his] hours. This Judge finds as
significant that Claimant reduced his wages to the extent that
coincidentally puts him at nearly the maximum partial disability rate
and there is no justification in the record to support how the reduced
wage of $1,400.00 per week was arrived at other than it coincided with
his reduction in hours. In addition, Claimant testified that he increased
his hours to 25 to 30 hours per week, but he was still taking the same
salary of $1,400.00 per week. This Judge therefore finds that Claimant
has failed to show that he has suffered a wage loss as a result of this
work injury.
This Judge further finds that Claimant’s testimony concerning his low
back and neck is not credible. Claimant reluctantly admitted during his
testimony that he received treatment in regard to multiple motor vehicle
accidents for his low back and neck over the years. He testified before
this Judge that he fell to the ground when he suffered this work injury,
which is not consistent with the history he has given to the various
medical providers. Furthermore, Dr. Belletieri agreed that Dr. Patel had
documented that Claimant sought to have him write a report that his
arm is causing his neck and back injuries. Claimant clearly has tried to
manipulate the extent of the injuries that would be attributed to the work
incident. His ongoing complaints concerning his low back and neck
are rejected based on the credible testimony of Dr. Brody.
11
9. This Judge has reviewed and considered the entire deposition of Dr.
Belletieri. His testimony and opinions are found to be credible only to
the extent they do not conflict with Dr. Brody.
10. This Judge has reviewed and considered the entire deposition of
Dr. Brody and finds him to be credible. His opinions are supported by
his examination of Claimant and thorough review of the medical
records. Dr. Brody’s testimony that Claimant has fully recovered from
any cervical and lumbar injuries he may have sustained is supported by
the reporting of Dr. Schneider-Lyall, including her report from January
9, 2018[,] that Claimant failed to keep scheduled office visits following
his initial appointment, and failed to schedule physical therapy as she
had recommended. These actions by Claimant undermine his
subjective complaints concerning his spine. Dr. Brody’s opinions are
accepted over those of Dr. Belletieri, an osteopathic [b]oard-certified
family practitioner, based on his superior credentials as a [b]oard-
certified orthopedic surgeon.
(FOF ¶¶ 8-10.) Based on these credibility determinations, the WCJ found that, in
addition to Claimant’s right arm injuries, Claimant sustained “an aggravation of
cervical and lumbar disc disease.” (Id. ¶ 11.) However, the WCJ found, as of June
12, 2019, Claimant had fully recovered from this aggravation. (Id. ¶ 12.) Further,
the WCJ found that “as of October 21, 2018, or any other date,” Claimant had not
suffered a wage loss as a result of the work-related injuries. (Id. ¶ 13.)
The WCJ made the following conclusions of law. The WCJ concluded that
Claimant had shown that the description of the injury should be expanded, including
“aggravation of cervical and lumbar disc disease.” (Conclusions of Law (COL) ¶ 2.)
However, Employer had shown that “as of June 12, 2019, Claimant was fully
recovered from the aggravation of his lumbar and cervical disc disease.” (Id. ¶ 3.)
As such, Employer remains responsible for medical treatment related to the right
arm injury but not for any neck or back condition. (Id. ¶ 5.) Accordingly, the WCJ
granted the Claim and Review Petitions in part and ordered Employer to pay for
medical treatment for Claimant’s right arm injury. (WCJ Decision at 10.)
12
D. The Board’s Opinion10
Claimant appealed to the Board. Claimant first challenged the WCJ’s finding
that Claimant had fully recovered from the aggravation of the preexisting cervical
and lumbar injuries as not being supported by substantial, competent evidence. The
Board disagreed, explaining that while Claimant met his burden of proving an
aggravation of his lumbar and cervical disc disease through the part of Dr.
Belletieri’s testimony found credible, Claimant did not prove that his disability was
ongoing because the WCJ did not credit Dr. Belletieri’s opinion that this aggravation
remained an issue and required restrictions on Claimant’s work duties or Claimant’s
testimony regarding the ongoing nature of those injuries. (Board Opinion (Op.) at 7
(citations omitted).) Instead, the Board held, the WCJ found “Dr. Brody to be
credible that Claimant had fully recovered from any injuries to his neck or back that
he may have sustained on March 9, 2017.” (Id.) As Dr. Brody’s credited testimony
supported this finding, the Board held there was no error in the WCJ’s finding upon
which to reverse.
Claimant next challenged the WCJ’s finding that Claimant sustained no loss
of earnings as a result of the work-related injuries. Again, the Board disagreed,
concluding that substantial, competent evidence supported this finding, which
precluded the grant of partial disability benefits. The Board cited Claimant’s ability
to perform modified work given his knowledge and experience as owner of
Employer for 30 years, as set forth in the WCJ’s finding of fact 8, supporting the
WCJ’s finding that Claimant’s loss of earnings was not associated with the work
injuries. (Id. at 8.) The Board also cited credible medical evidence showing that
Claimant was capable of continuing to supervise his employees, taking care of
10
The Board’s Opinion is found at pages 262a through 272a of the Reproduced Record.
13
bidding and sales, and performing other duties that did not require heavy lifting or
physical activity, among other factors, supporting the WCJ’s finding. (Id.) In
addition, the Board pointed out that Dr. Belletieri could “not recall when he placed
restrictions on Claimant, [] that it was Claimant’s call since he was owner of the
company” and that, while Dr. Belletieri “would be flexible” with the restrictions, it
was Claimant’s company and Dr. Belletieri would amend the restrictions if Claimant
“felt that he wanted to” work more. (Id.) The Board also cited Dr. Brody’s credited
testimony that he placed no hourly restrictions on Claimant and that Claimant’s
“supervisory activities fit well into [Dr. Brody’s] restrictions.” (Id.) The Board held
that this testimony supported the WCJ’s finding that Claimant did not sustain a wage
loss related to the work-related injuries. (Id.)
Accordingly, the Board affirmed the WCJ’s Decision. Claimant now petitions
this Court for review.11
II. DISCUSSION
Claimant argues on appeal that the WCJ’s Decision is not reasoned, as
required by Section 422(a) of the Workers’ Compensation Act (Act),12 77 P.S. § 834,
because the WCJ’s credibility determinations are not supported by substantial
evidence and are, therefore, arbitrary and capricious. Claimant further maintains the
record lacks substantial, competent evidence to support the WCJ’s findings that
Claimant had fully recovered from the work-related aggravation of the preexisting
cervical and lumbar disc disease and that Claimant sustained no loss of earnings due
11
Our scope of review in WC matters “is limited to determining whether constitutional
rights have been violated, whether an error of law has been committed[,] and whether all necessary
findings of fact are supported by substantial evidence.” Archer v. Workmen’s Comp. Appeal Bd.
(Gen. Motors), 587 A.2d 901, 903 (Pa. Cmwlth. 1991).
12
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 834.
14
to the work-related injuries. Employer responds that the WCJ did not err in finding
that Claimant did not meet his burdens of proving an ongoing work-related injury to
his preexisting cervical and lumbar spine or that the wage loss Claimant suffered
was the result of his work injuries where Claimant’s evidence was not accepted as
credible. According to Employer, the challenged credibility determinations and
factual findings are supported by substantial, competent evidence and Claimant
seeks to have this Court reweigh or reinterpret the evidence in Claimant’s favor,
which is contrary to the standard for appellate review in WC matters.
Here, Claimant filed the Claim and Review Petitions seeking to change the
description of his work-related injuries as set forth in the MO-NCP and to dispute
that the work-related injuries resulted in “no loss of wages.” (R.R. at 1a-2a
(emphasis omitted).) A party seeking to alter the description of an injury on an NCP
bears the burden to prove “that a material mistake of fact or law was made at the
time the NCP was issued,” Anderson v. Workers’ Compensation Appeal Board
(Pennsylvania Hospital), 830 A.2d 636, 641 (Pa. Cmwlth. 2003), or that subsequent
injuries have arisen from the original injury, Cinram Manufacturing, Inc. v.
Workers’ Compensation Appeal Board (Hill), 975 A.2d 577, 580-81 (Pa. 2009).13
A review petition is appropriate where a claimant seeks to amend an NCP to reflect
further injuries. Id. at 581. A claim petition is filed when a claimant “believes that
a work injury is causing a loss of earning power.” Ingrassia v. Workers’ Comp.
Appeal Bd. (Universal Health Servs., Inc.), 126 A.3d 394, 402 (Pa. Cmwlth. 2015)
(citation omitted).
13
The first scenario, referred to as a corrective amendment, may be granted by a WCJ in
the course of any proceedings if the evidence so warrants. Cinram Mfg., 975 A.2d at 580-81. The
second scenario requires the filing of a specific review petition seeking to amend the NCP. Id. at
581.
15
To support an award of disability benefits, a claimant must prove that they
“sustained a work injury which resulted in disability, i.e., a loss of earning power.”
Id. “Unless the causal connection between an injury and disability is obvious,
unequivocal medical evidence is needed to establish that connection.” Id. Further,
a claimant must establish that they sustained an injury during the course and scope
of their employment and that the injury is causally related to the employment.
Delaware Cnty. v. Workers’ Comp. Appeal Bd. (Baxter Coles), 808 A.2d 965, 967-
68 (Pa. Cmwlth. 2002) (citation omitted). The claimant also has the burden of
establishing the duration of disability and must, where not obvious, “establish[]
ongoing disability by the presentation of unequivocal medical evidence.” Wagner
v. Workers’ Comp. Appeal Bd. (O’Malley Wood Prods., Inc.), 805 A.2d 683, 684
(Pa. Cmwlth. 2002). Thus, under these standards, Claimant bore the initial burden
of proving, through credible, unequivocal medical evidence, that: (1) the MO-
NCP’s description of the work-related injuries was incorrect; and (2) he sustained
work-related injuries that caused an ongoing disability. Wagner, 805 A.2d at 684;
Baxter Coles, 808 A.2d at 967-68.
A. Reasoned Decision and the WCJ’s Credibility Determinations
Claimant first argues that the WCJ erred in finding that Claimant did not meet
these above burdens of proof because the WCJ’s credibility determinations rejecting
Claimant’s evidence are not supported by substantial evidence and are, therefore,
arbitrary and capricious. According to Claimant, these unsupported, arbitrary, and
capricious determinations violate the reasoned decision requirements of Section
422(a) of the Act. As to himself, Claimant challenges three of the WCJ’s reasons as
not being supported by the record: (1) the characterization of Claimant’s testimony
16
regarding his past “multiple” MVAs and related injuries as being reluctant; (2) the
finding that Claimant’s testimony that he “fell to the ground when he suffered this
work injury” was “not consistent with the history [Claimant gave] to the various
medical providers”; and (3) the finding that Claimant had “clearly tried to
manipulate the extent of the injuries . . . attributed to the work incident” by asking
Dr. Patel to state that the right arm injury was causing the neck and back injuries.
(FOF ¶ 8.) As to the medical experts, Claimant argues the following reasons given
for crediting Dr. Brody’s testimony over that of Dr. Belletieri were likewise not
supported by substantial evidence: (1) Dr. Brody’s more thorough assessment of
Claimant and review of the medical records; (2) the reliance on Dr. Schneider-
Lyall’s January 9, 2018 report reflecting that Claimant did not keep scheduled office
visits and did not schedule recommended physical therapy; and (3) Dr. Brody’s
qualifications in comparison to Dr. Belletieri’s qualifications.
Employer responds that as to the WCJ’s credibility determination concerning
Claimant, such determination properly summarized the evidence, was based on more
than just the three challenged reasons, and was based on Claimant’s demeanor, in
addition to many different aspects of Claimant’s testimony. As to the medical
experts, Employer argues that the WCJ properly found Dr. Brody credible based on
his superior qualifications and his assessment of the medical records. Further,
Employer posits that the WCJ’s reliance on Dr. Schneider-Lyall’s report,
specifically concerning whether Claimant pursued follow-up treatment, is “an issue
of interpretation of the evidence,” and thus it is properly within the purview of the
WCJ. (Employer’s Brief (Br.) at 21.)
Section 422(a) of the Act provides that all parties in a WC case “are entitled
to a reasoned decision containing findings of fact and conclusions of law based upon
17
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.” 77 P.S. § 834. The decision of a WCJ is “reasoned” if it allows for
meaningful appellate review without further elucidation. Daniels v. Workers’ Comp.
Appeal Bd. (Tristate Transp.), 828 A.2d 1043, 1052 (Pa. 2003). In the instant matter,
Claimant’s reasoned decision challenge is based on his assertion that the WCJ’s
credibility determinations were arbitrary and capricious.
When reviewing credibility determinations, we are guided by the following
principles. It is well settled that
[t]he WCJ is the fact[]finder, and it is solely for the WCJ . . . to assess
credibility and to resolve conflicts in the evidence. Neither the Board
nor this Court may reweigh the evidence of the WCJ’s credibility
determinations. In addition, it is solely for the WCJ, as factfinder, to
determine what weight to give to any piece of evidence. . . . As such,
the WCJ may reject the testimony of any witness in whole or in part,
even if that testimony is uncontradicted.
Hawbaker v. Workers’ Comp. Appeal Bd. (Kriner’s Quality Roofing Servs.
& Uninsured Emp. Guar. Fund), 159 A.3d 61, 69 (Pa. Cmwlth. 2017) (third and
fifth alterations in original) (emphasis added) (internal citations, quotations, and
brackets omitted). “An appellate tribunal must view the WCJ’s reasoning as a whole
and may overturn a credibility determination only if it is arbitrary and capricious, so
fundamentally dependent on a misapprehension of material facts, or so otherwise
flawed, as to render it irrational.” W. Penn Allegheny Health Sys., Inc. v. Workers’
Comp. Appeal Bd. (Cochenour), 251 A.3d 467, 475 (Pa. Cmwlth. 2021) (citing
Casne v. Workers’ Comp. Appeal Bd. (STAT Couriers, Inc.), 962 A.2d 14 (Pa.
Cmwlth. 2008)). “The [WCJ] is free to accept or reject the testimony of any witness,
including a medical witness, in whole or in part.” Greenwich Collieries v.
18
Workmen’s Comp. Appeal Bd. (Buck), 664 A.2d 703, 706 (Pa. Cmwlth. 1995)
(citation omitted). A WCJ’s observation of a witness’s demeanor alone may be the
basis of a credibility decision and such observation is sufficient to satisfy the
reasoned decision requirement. Daniels, 828 A.2d at 1052-53. Where a WCJ’s
finding of fact is supported by substantial evidence, based on a review of the record
and the reasonable inferences therefrom, and in the light most favorable to the party
that prevailed before the WCJ, it may not be overturned. Cochenour, 251 A.3d at
475 (citations omitted). “[S]ubstantial evidence is such relevant evidence as a
reasonable person might accept as adequate to support a conclusion.” Id. (quotation
omitted). “Mere speculation or conjecture is insufficient to support a factual
finding,” but if the finding is based on a reasonable and logical inference from the
evidence, even if that is not the only finding that could come from that inference,
that finding is supported by substantial evidence. Id. (citations omitted). “[I]t is
immaterial that there is evidence in the record supporting a factual finding contrary
to that made by the WCJ; rather, the pertinent inquiry is whether there is any
evidence which supports the WCJ’s factual finding.” Id.
Applying these standards here, we hold that none of the factors that would
allow interference with the WCJ’s credibility determinations exist. We begin with
the challenges to the WCJ’s findings as to Claimant’s testimony. First, concerning
the asserted mischaracterization of Claimant’s testimony about the prior MVAs and
related injuries as being reluctant because, Claimant asserts, he testified about these
topics on direct examination, we agree with Employer that such characterization was
based on the WCJ’s observation of Claimant’s demeanor while answering those
questions. In short, the WCJ observed Claimant personally and gauged Claimant’s
demeanor during that testimony, Daniels 828 A.2d at 1052-53, and describing that
19
testimony as having been given “reluctantly,” (FOF ¶ 8), does not render that reason
arbitrary or capricious, Cochenour, 251 A.3d at 475. Further, while Claimant
challenges the use of the word “multiple” to refer to his two MVAs, “multiple” is
defined as “consisting of, including, or involving more than one.” Merriam-
Webster’s Collegiate Dictionary 762 (10th ed. 2001) (emphasis added). As two, and
perhaps three, is more than one, we discern no abuse of discretion in the WCJ
referring to Claimant as having had multiple MVAs. Finally, that Claimant reported
those accidents to Dr. Brody and Dr. Schneider-Lyall does not preclude the WCJ
from considering Claimant’s testimony on these topics as being reluctant.
Second, concerning the challenge to the WCJ’s determination that Claimant’s
testimony that he fell to the ground and was injured was inconsistent with the history
Claimant gave to some medical providers, a review of the record, in the light most
favorable to Employer as the party that prevailed before the WCJ, supports that
finding. Cochenour, 251 A.3d at 475. In his deposition testimony, Dr. Belletieri
described the history Claimant related, but absent from that testimony is a reference
to Claimant falling. (R.R. at 89a.) Further, as Claimant acknowledges in his brief,
Dr. Brody was initially unable to recall whether Claimant told him that he slipped
and fell during the accident, although Dr. Brody eventually agreed this history was
not inconsistent with the history Claimant gave. (R.R. at 148a; Claimant’s Br. at
15.) However, Dr. Brody’s inability to recall is not surprising because his IME
Report, drafted contemporaneously with his examination of Claimant, does not
reflect that Claimant told Dr. Brody of a fall. (R.R. at 183a.) Thus, the record
contains evidence that a reasonable person would find adequate to support a
conclusion, i.e., substantial evidence, that Claimant did not tell some of the medical
providers that he fell.
20
Third, as to the WCJ’s finding that Claimant tried “to manipulate the extent
of the injuries that would be attributed to the work incident” by asking Dr. Patel to
relate Claimant’s neck and back pain to the right arm injury, this finding is supported
by substantial evidence. During his testimony, Claimant claimed to not recall having
this conversation with Dr. Patel, but Claimant now describes his request as simply
“advocating for himself.” (Claimant’s Br. at 16-17.) While Claimant characterizes
his repeated requests for a non-back and neck specialist to act outside that
physician’s field to add injuries to the accepted work injury as “advocating for
himself,” (id.), a reasonable person could view those requests, in the light most
favorable to Employer, as adequate to support the conclusion that Claimant was
trying to manipulate the extent of his work injuries, as found by the WCJ. Thus, that
finding is supported by substantial evidence.
Turning to the challenges to the WCJ’s findings related to the medical experts’
credibility, we likewise conclude the record evidence, including the reasonable
inferences drawn therefrom, support the WCJ’s findings. First, as to Claimant’s
challenge based on the WCJ’s reliance on Dr. Brody’s physical examination of
Claimant and review of Claimant’s medical records because, Claimant argues, other
records showed abnormal examinations and spasms, it is of no moment that the
record contains evidence that would support a different finding. Cochenour, 251
A.3d at 475. Dr. Brody testified that his examination of Claimant’s neck and low
back were normal and that, to the extent that other reports showed otherwise, he
disagreed with their findings. (R.R. at 152a-54a.) Further, to the extent that other
physicians did not find Claimant fully recovered, (Claimant’s Br. at 20), Dr. Brody
opined to the contrary. This opinion was not based on mere speculation or
conjecture, but on Dr. Brody’s personal examination of Claimant and review of
21
Claimant’s medical records, including MRIs from 2010, 2017, and 2019, x-ray
studies of March 9, 2017, Dr. Patel’s pre- and post-operative reports and office notes,
EMG studies from May 30, 2017, and June 11, 2019, Dr. Schneider-Lyall’s July 13,
2017 and January 9, 2018 reports, and records from Dr. Belletieri’s office. (R.R. at
145a-46a.) Thus, it cannot reasonably be said that this finding is not supported by
substantial evidence such that it was an abuse of the WCJ’s discretion as factfinder
to resolve evidentiary disputes, especially those involving medical witnesses.
Greenwich, 664 A.2d at 706.
Second, Claimant disputes the WCJ’s finding that Dr. Brody’s opinion of full
recovery is supported by the facts, as recorded in Dr. Schneider-Lyall’s January 9,
2018 report, that Claimant failed to keep scheduled office visits and “failed to
schedule physical therapy as . . . recommended,” because such failures “undermine
[Claimant’s] subjective complaints concerning his spine.” (FOF ¶ 10.) Claimant
argues that because Dr. Schneider-Lyall did not find Claimant fully recovered on
January 9, 2018, but prescribed additional treatments, the report “in no way supports
a finding of full recovery.” (Id.) However, the WCJ’s finding is based on the
inference that, had Claimant’s complaints about his neck and back been as bad as he
claimed, Claimant would have attended those appointments and treatments. Having
not done so, the WCJ inferred that the neck and back issues were not as bad as
claimed and, as such, Dr. Brody’s finding of full recovery in June 2019, more than
a year and a half later, was consistent with a less serious injury. We cannot say that
the WCJ’s inference is unreasonable, and, because a reasonable person might accept
22
that as evidence sufficient to support the WCJ’s finding, that finding is supported by
substantial evidence.14 Cochenour, 251 A.3d at 475.
Third, Claimant challenges the WCJ’s acceptance of Dr. Brody’s opinion that
Claimant had fully recovery based “solely” on Dr. Brody’s qualifications as a board-
certified orthopedic surgeon. (Claimant’s Br. at 23-24.) This is simply inaccurate
because Dr. Brody’s qualifications were but one of several reasons why the WCJ
found Dr. Brody more credible. (FOF ¶ 10.) The differences in the specialties of
Dr. Brody and Dr. Belletieri reflect that while Dr. Brody treats neck, back, and upper
extremity issues daily, those injuries account for only 10 to 15% of Dr. Belletieri’s
practice. (R.R. at 88a, 143a.) Accordingly, the differences in qualifications cannot
be said to be a flawed or irrational basis for giving Dr. Brody’s testimony greater
weight.
In sum, the WCJ’s credibility determinations are supported by substantial
evidence, not based on mere speculation, conjecture, or a misapprehension of
material facts or are otherwise so flawed that they are rendered irrational.
Cochenour, 251 A.3d at 475. Therefore, they are not arbitrary and capricious and
must be upheld. Id. Because the WCJ’s credibility determinations are not arbitrary
and capricious and allow for adequate appellate review, the WCJ’s Decision is
reasoned for the purposes of Section 422(a).
B. Finding of Full Recovery
Claimant next argues that the WCJ erred in finding that Claimant “fully
recovered from the aggravation of his pre[]existing cervical and lumbar disc
14
To the extent Claimant offered alternative bases for why he did not attend those
appointments, it is immaterial if the record contains evidence that supports a contrary conclusion
if the finding made is supported by substantial evidence. Cochenour, 251 A.3d at 475.
23
disease.” (Claimant’s Br. at 24.) Claimant contends that Dr. Brody’s entire
testimony is “equivocal and therefore not competent or credible as a matter of law,”
rendering Dr. Belletieri’s testimony and opinions unrebutted and supporting the
conclusion that Claimant sustained ongoing work-related neck and back injuries that
resulted in an ongoing partial loss of earnings. (Id. at 24, 26-27.) Employer responds
that the WCJ’s findings regarding the testimony of Dr. Brody are supported by
substantial evidence of record and that the testimony that Claimant was fully
recovered from any neck or low back injury that may have occurred was
unequivocal.
Claimant bore the burden of proving through credited, unequivocal medical
evidence that he sustained a disabling injury in the course of his employment and
that such injury and disability remained ongoing. Ingrassia, 126 A.3d at 402;
Wagner, 805 A.2d at 684. Unequivocal medical testimony is testimony by a medical
expert who, after providing a foundation, states “that in his professional opinion or
that he believes or that he thinks the facts exist.” Johnson v. Workers’ Comp. Appeal
Bd. (Abington Mem’l Hosp.), 816 A.2d 1262, 1267 (Pa. Cmwlth. 1997) (quoting
Phila. Coll. of Osteopathic Med. v. Workmen’s Comp. Appeal Bd. (Lucas), 465 A.2d
132, 134 (Pa. Cmwlth. 1983)). “It is not the law . . . that every utterance which
escapes the lips of a medical witness on a medical subject, must be certain, positive,
and without reservation, exception, or peradventure of a doubt.” Lucas, 465 A.2d at
134-35. Rather, the testimony must be viewed as a whole, and a decision should not
turn on a few words taken out of context. Johnson, 816 A.2d at 1268. “Whether
medical testimony is equivocal is a question of law.” Id. at 1267. As the Lee Court
stated, “[i]f the testimony is based only upon possibilities, then that testimony is
equivocal and not legally competent to establish a causal relationship.” Somerset
24
Welding & Steel v. Workmen’s Comp. Appeal Bd. (Lee), 650 A.2d 114, 117 (Pa.
Cmwlth. 1994) (citation omitted).
In support of his argument, Claimant quotes a small portion of Dr. Brody’s
testimony in which Dr. Brody responded to the question of whether Claimant
sustained an aggravation of a preexisting condition on March 9, 2017, as follows:
“Well, I didn’t lay eyes on the patient until June 12, 2019. So, I could not answer
that question to a degree of certainty.” (R.R. at 151a.) Claimant argues that this
response “could not have been any more equivocal.” (Claimant’s Br. at 25.)
However, Claimant’s argument takes a few words from Dr. Brody’s testimony out
of context, and what Dr. Brody actually said was:
[w]ell, I didn’t lay eyes on the patient until June 12[], 2019. So, I could
not answer that question to a degree of certainty, but I can tell you to
a degree of certainty that if he had such an exacerbation, that it was
my opinion as of June 12[], 2019, any such exacerbation had
resolved.
(R.R. at 151a (emphasis added).) Examined as a whole and in context, Dr. Brody’s
testimony was unequivocal because Dr. Brody provided a foundation for his opinion
and explained why he believed the aggravation of Claimant’s preexisting condition
had resolved by June 12, 2019. Johnson, 816 A.2d at 1267-68. Dr. Brody essentially
accepted that an aggravation had occurred at the time of the initial incident, thus
providing support for the WCJ’s acceptance of Dr. Belletieri’s testimony and
opinions as credible “to the extent they do not conflict with Dr. Brody[’s].” (FOF ¶
9.) This testimony supported the WCJ’s finding that Claimant did sustain a work-
related aggravation of his preexisting neck and low back conditions. As to the
ongoing nature of that aggravation, however, Dr. Brody’s and Dr. Belletieri’s
testimony and opinions conflicted. Dr. Brody specifically opined, based on
25
Claimant’s normal physical examination of the neck and low back, Claimant’s
medical records, and Dr. Brody’s expertise, that any aggravation that had occurred
had resolved by the time Dr. Brody examined Claimant. This testimony provides a
foundation for Dr. Brody’s professional opinion that a fact – Claimant’s full
recovery from the aggravation – exists. Further, it cannot reasonably be said that the
testimony was “based only upon possibilities.” Lee, 650 A.2d at 117. As such, Dr.
Brody’s testimony regarding Claimant’s full recovery is unequivocal and constitutes
substantial evidence that supports the WCJ’s finding that Claimant’s aggravation
injury had resolved. While Claimant is correct that Dr. Belletieri opined that the
aggravation remained symptomatic and disabling, which would have satisfied
Claimant’s burden of proof, the WCJ did not find Dr. Belletieri credible in this
regard. The WCJ, as factfinder, was free to accept or reject Dr. Belletieri’s testimony
in whole or in part. Greenwich, 664 A.2d at 706. Because Claimant’s medical
evidence about the ongoing work-related aggravation was not credited, and as Dr.
Brody’s opinion of full recovery was unequivocal and credited, Claimant could not
meet his burden of proof on the Claim Petition after June 12, 2019.
C. Finding No Loss of Earnings as a Result of the Work Injuries
Claimant finally contends that the WCJ erred in finding that any loss of
earnings Claimant suffered was not the result of the work-related injuries because
that finding is not supported by substantial evidence, is arbitrary, and does not evince
a reasoned decision. Claimant asserts many reasons why the WCJ erred in not
finding a compensable loss of earnings, ranging from how the restriction of his work
duties and reduction in salary were justified, to there being no evidence that other
workers did not increase their hours to make up for his work restrictions, and to why
the reduction in his hours and duties was delayed until October 21, 2018, after he
26
obtained counsel because of Employer’s refusal to acknowledge the worsening
aggravation injury. Claimant further disputes the WCJ questioning the motives
around the amount of his reduction in wages and claims he is being treated unfairly
because he is part-owner of Employer. (Claimant’s Br. at 27-35.) Employer
responds that the WCJ’s Decision is reasoned, supported by substantial evidence,
and “touch[es] upon nearly all aspects of [Claimant’s] testimony,” including
providing a myriad of reasons for rejecting Claimant’s testimony as not credible.
(Employer’s Br. at 10-11.)
After reviewing the record and drawing the reasonable inferences deducible
therefrom in the light most favorable to Employer, there is substantial evidence to
support the WCJ’s findings. Although Claimant contends he was not in control of
setting the amount of pay and hours worked, that contention is belied by his own
testimony that he made the decision to reduce his salary and the extent of that
reduction. (R.R. at 66a.) Like the WCJ, we find it telling that while Claimant argues
that the reduction of wages was completely related to his reduction in hours,
Claimant admitted to increasing his hours from 25 to 30 hours per week without
making a corresponding increase in his salary. (Id. at 224a.) In doing so, Claimant
retained the level of salary that “coincidentally,” (FOF ¶ 8), placed him at nearly the
maximum partial disability rate. The inconsistency in Claimant’s testimony and the
inferences that could be drawn from that inconsistency support the WCJ’s finding
that the loss of earnings was not related to a reduction in hours due to the physical
restrictions of Claimant’s work injuries.
Moreover, additional support for the finding regarding Claimant’s ability to
control his restrictions and salary is found elsewhere in the record. Dr. Belletieri
testified that he was willing to be more flexible about the restrictions on Claimant’s
27
abilities but deferred to Claimant, stating “[l]isten, it’s his company. I would be
flexible. If he felt that he wanted to, I might amend that, but at this point that’s the
restriction I put on him.” (R.R. at 98a.) Notably, even when Claimant was first
recovering from the hand surgeries and related restrictions, Claimant did not reduce
his salary and performed his work duties with some restrictions. And, during the
initial treatment of the aggravation injury, Dr. Schneider-Lyall imposed no work
restrictions related to that injury. (Id. at 97a.) It was only after Claimant obtained
counsel that he reduced his wages and sought WC disability benefits to replace those
losses.
As for the WCJ’s disbelief that Claimant was capable, both physically and
professionally, of performing only administrative work 20 hours per week as a clerk,
we discern no abuse of discretion or legal error. That disbelief was based on
Claimant’s admitted knowledge and experience as co-owner of Employer for 30
years, from which the WCJ inferred that Claimant had abilities beyond completing
paperwork even with his physical restrictions. The medical evidence reflected that
Claimant is capable of supervising the work performed by Employer’s other
workers, taking care of sales and bidding, and performing any “other duties that did
not require heavy lifting or” physical activity. (FOF ¶ 8.) Further, Claimant’s
contention that he could only work 20 hours per week is contradicted by the facts
that Claimant increased his hours “despite his doctor not releasing him for more
work” and admitted it was not necessary to hire additional employees. (Id.)
Reviewed as a whole, we conclude that a reasonable person might accept this
evidence as sufficient to support the WCJ’s finding that Claimant’s loss of earnings,
which began in October 2018, was not caused by the work-related injuries. Thus,
the WCJ’s finding was based on substantial evidence and was not arbitrary and
28
capricious. As to Claimant’s related contention that the WCJ’s Decision is not
reasoned due to these findings, this is not the case because the WCJ provided ample
explanation for the findings of fact and conclusions of law, thereby allowing for
adequate appellate review. 77 P.S. § 834.
III. CONCLUSION
Based on the foregoing, there was no abuse of discretion in the WCJ’s
credibility determinations or legal error in the WCJ’s findings that Claimant had
fully recovered from the aggravation of Claimant’s preexisting neck and low back
injuries and did not sustain a wage loss as a result of the March 9, 2017 work injuries.
Rather, those findings were supported by substantial, credible, and competent
evidence, and, accordingly, we affirm.
_____________________________________
RENÉE COHN JUBELIRER, Judge
29
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mark Gallagher, :
Petitioner :
:
v. : No. 153 C.D. 2021
:
Abstract Overhead Door Corp. :
(Workers’ Compensation :
Appeal Board), :
Respondent :
ORDER
NOW, February 17, 2022, the Order of the Workers’ Compensation Appeal
Board, entered in the above-captioned matter, is AFFIRMED.
_____________________________________
RENÉE COHN JUBELIRER, Judge