K. Marinack v. WCAB (City of Pittsburgh Fire Bureau) ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kenneth Marinack, :
Petitioner :
:
v. : No. 871 C.D. 2015
: Submitted: September 25, 2015
Workers’ Compensation Appeal :
Board (City of Pittsburgh Fire Bureau), :
Respondent :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge1
HONORABLE MARY HANNAH LEAVITT, Judge2
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE LEAVITT FILED: February 19, 2016
Kenneth Marinack (Claimant), pro se, petitions for review of an
adjudication of the Workers’ Compensation Appeal Board (Board) suspending his
disability compensation. In doing so, the Board affirmed the conclusion of the
Workers’ Compensation Judge (WCJ) that because Claimant did not give his
employer the information needed to determine his earnings, the employer met its
burden for a suspension of benefits. We affirm.
1
This case was assigned to the opinion writer on or before December 31, 2015, when President
Judge Pellegrini assumed the status of senior judge.
2
This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt
became President Judge.
On May 21, 2004, Claimant was injured while doing his job as a
firefighter for the City of Pittsburgh Fire Bureau (Employer), which accepted
liability for a torn rotator cuff and aggravation of lumbar disc disease. Employer
paid Claimant total disability benefits in the amount of $690 per week, the
maximum compensation amount for any claimant injured in 2004. At the time of
his injury, Claimant also had earnings from his contracting business called
Marinack Enterprises. When an elderly couple complained to Employer that
Claimant did not finish the job for which they had paid in full, Employer referred
the matter to the City’s Fire Trial Board. The Board concluded that Claimant had
acted unethically, and Employer fired Claimant in April 2005. Claimant continued
to receive total disability benefits.
In September 2008, Employer filed a suspension petition, asserting
that Claimant, who was capable of doing a light-duty job, was not working because
he had retired. Retirement rendered Claimant ineligible for further disability
compensation. Claimant denied that he had retired and asserted that he remained
totally disabled by his work injury. In the alternative, Claimant asserted that he
had looked for work. The matter was assigned to WCJ Nathan Cohen.
Claimant testified that after the 2004 contracting job that led to his
firing, he did not do any other work through Marinack Enterprises. Claimant also
testified that he was totally disabled but stayed attached to the job market by
pursuing jobs through the Office of Vocational Rehabilitation.
WCJ Cohen granted the suspension petition. The WCJ found that
Claimant had not made a good faith effort to find work within his medical
2
restrictions. Claimant appealed. Before the Board, Claimant argued that he had, in
fact, done other contracting jobs,3 which he could document.
On December 27, 2010, Employer filed the instant petition to suspend
or modify Claimant’s benefits. Employer requested a hearing to obtain further
information on Claimant’s earnings, including tax returns for all relevant years.
Employer’s suspension petition was assigned to WCJ Irving Bloom.4
Employer secured subpoenas from the WCJ directing Claimant to turn
over to Employer any and all records of employment or self-employment done by
Claimant directly or through Marinack Enterprises from 2004 onward, including
“tax returns, payroll records, contracts, agreements, insurance policies, bank
statements, accounts receivable, expenses and business filings.” Employer’s
Exhibits J and K.5
In support of its suspension petition, Employer submitted Claimant’s
March 16, 2009, deposition from the litigation before WCJ Cohen. Employer’s
3
Concluding that Claimant had not retired, the Board reversed the suspension, and this Court
affirmed. See City of Pittsburgh v. Workers’ Compensation Appeal Board (Marinack), 37 A.3d
39 (Pa. Cmwlth. 2012). The Supreme Court vacated our order and remanded for reconsideration
in light of the Supreme Court’s decision in City of Pittsburgh v. Workers’ Compensation Appeal
Board (Robinson), 67 A.3d 1194 (Pa. 2013). See City of Pittsburgh v. Workers’ Compensation
Appeal Board (Marinack), 81 A.3d 882 (Pa. 2013). This Court then remanded the matter for the
WCJ to reconsider the record in light of the clarified burden of proof set forth in Robinson. See
City of Pittsburgh v. Workers’ Compensation Appeal Board (Marinack), (Pa. Cmwlth., No. 100
C.D. 2011, filed January 8, 2015). This litigation does not depend on the outcome of the prior
case.
4
Claimant filed a review petition alleging that the description of his work injury was incorrect
and a penalty petition alleging that Employer failed to timely pay him benefits to which he was
entitled. WCJ Bloom denied the review petition and granted the penalty petition. Neither party
appealed these aspects of the WCJ’s decision.
5
Because this Court granted Claimant’s application to proceed in forma pauperis, there is no
reproduced record.
3
Exhibit F. Therein, Claimant testified that after his 2004 work injury, he had to
hire someone to help him finish the job for the elderly couple. Claimant testified
that after that job, he did not do any other work.
Employer submitted WCJ Cohen’s October 27, 2009, decision
suspending benefits. Of note, WCJ Cohen found that Claimant received checks
made out to “cash” totaling $11,000 from the elderly couple for the 2004
contracting job. Claimant stated he did not report the $11,000 as income because
he actually lost money on the project.
Employer also submitted documents from Claimant’s appeal of WCJ
Cohen’s decision. In that appeal, Claimant argued that WCJ Cohen erred in
finding that Claimant had withdrawn from the workforce, explaining as follows:
I sincerely believe that once you review the case, you will see
that [WCJ] Cohen’s conclusions were at the very least, flawed.
… I tried to find employment within my stated limitations with
an established company, but was unable to secure any position
at all. … I therefore thought that my best possible course would
be to pursue a “self-employment” type of position (ie…
Marinack Enterprises). This way I could have a direct
influence on the type and parameters of each specific project I
would secure. So, that is exactly what I did. I sought out and
obtained several projects which were within my capabilities and
or limitations.
When [WCJ] Cohen stated I was not seeking employment
faithfully by his standards.. [sic] I was in fact actually
employed, that is “self-employed” working as an independent
contractor on several projects. The evidence of which is
included within this appeal.
Employer’s Exhibit E at 1-2 (emphasis added).
Employer submitted a transcript of the oral argument before the
Board, where Claimant stated that he did occasional contracting work and, thus,
4
remained attached to the workforce. Employer’s Exhibit G, at 18. Claimant also
informed the Board that he had intended to present evidence about his self-
employment before WCJ Cohen but never had the opportunity, explaining:
I have evidence that I planned to submit [to WCJ Cohen]. I
have several letters. I have documentation of the jobs that I did
for the people I did them for. Letters by the people --
Employer’s Exhibit G, at 16.
Employer submitted various LIBC-750 forms, entitled “Employee
Report of Wages and Physical Condition,” and LIBC-760 forms, entitled
“Employee Verification of Employment, Self-Employment or Change in Physical
Condition,” that Claimant had completed. Employer’s Exhibit L. In the 2006,
2007 and 2008 forms, Claimant stated that he had no wages to report. Claimant
submitted no forms for 2009 and 2010.6 On forms dated January 25, 2011,
Claimant reported that he had done small handyman-type jobs from December 1,
2008, to December 3, 2009. As to the wages earned, he stated: “Not sure of exact
amount. I will have to search records. Approx. under $2,500.00.” On forms dated
March 6, 2011, Claimant again reported self-employment from December 1, 2008,
to December 3, 2009, but estimated his wages as “less than $1,500” and stated “[I
am] trying to find the records to get a more accurate total.” Claimant reported the
same information on forms dated April 6, 2011. On forms dated July 29, 2011,
August 20, 2011, and January 13, 2012, Claimant reported that he had been self-
6
While Claimant’s benefits were suspended pursuant to WCJ Cohen’s order, Employer did not
send Claimant any forms to complete. When the Board reversed the suspension in late 2010,
Employer resumed sending Claimant forms.
5
employed from May 1, 2009, to December 1, 2009, and earned “less than $1,500
gross.”
Claimant testified before WCJ Bloom. Claimant described Marinack
Enterprises as a small business registered with the Department of State. Claimant
could not recall whether Marinack Enterprises had a checking account but stated
that it did not have any insurance policies or payroll records, and it did not file tax
returns. Claimant testified that he did all of the work for Marinack Enterprises and
had no employees. When reminded that he hired someone to help him with the
2004 project, Claimant responded that he could not remember the person’s name,
whom he paid in cash.
Claimant testified that during the prior suspension litigation, his
attorney advised him to look for employment. Accordingly, in 2009 he did “some
small handyman repair type stuff” for a realtor at a property being prepared for
sale. Notes of Testimony (N.T.), November 21, 2011, at 10. Claimant estimated
that he did three to five such projects. Claimant testified that he had neck surgery
in December 2009 and did not do any more handyman work after that. Claimant
testified that only in 2009 did he receive self-employment wages while also
collecting workers’ compensation. Claimant acknowledged that he did not
immediately report his self-employment wages because his prior attorney told him
not to have any contact with Employer. Claimant testified that he did inform
Employer of his self-employment earnings by completing the LIBC forms in 2011,
6
which he approximated because he had not figured out his costs, as needed to
determine his actual earnings. Id.at 36.7
In response to Employer’s subpoenas, Claimant initially produced
three work proposals entitled “Marinack Enterprises;” two checks from Keystone
Closing Services from August 2009 for $750 and $350; and several pages of
invoiced expenses for three jobs. Employer’s Exhibit I. Claimant testified that he
produced all the documents he found but could not confirm that they were
complete. Claimant testified that he had difficulty locating his documents because
he lost his apartment after WCJ Cohen suspended his benefits, forcing him to put
things in storage.
After the instant litigation began, Claimant obtained counsel.
Claimant turned over documents concerning the 2004 job for the elderly couple,
and produced credit union and bank statements from storage.8 Claimant submitted
a letter from the IRS confirming that neither Claimant nor Marinack Enterprises
has filed tax filings after his 2004 work injury. Claimant testified that there were
no other documents concerning his work through Marinack Enterprises.
7
Claimant did not report his income to the IRS because he estimated it was less than $1,000 and
he mistakenly believed he was not required to file a tax return for such a small amount of
income.
8
As to these banking records, the WCJ noted:
Claimant did not provide any explanation of the same, but instead simply
submitted everything to allow this [WCJ] and [E]mployer to sort out the relevance
of the information therein. Yet, and as noted above, the deposits reflected in these
documents – which are again incomplete as to the time frames at issue – do not
correlate with the [C]laimant’s testimony and evidence as to his self-employment
earnings and family loans during this time frame.
WCJ Bloom Decision, March 27, 2014, at 16; Finding of Fact No. 39(j).
7
Claimant testified that after WCJ Cohen’s suspension order, he did
not collect disability compensation from October 28, 2009, through February 27,
2011. Claimant testified that he was not employed during that time and had no
earnings. He got by with assistance from family members.
WCJ Bloom found Claimant’s testimony about his business to be
evasive and inconsistent.9 The WCJ noted that Claimant changed his position,
depending on his claim status. For example, in the prior litigation, Claimant stated
that he was totally disabled. Only after his benefits were suspended by WCJ
Cohen did Claimant disclose his self-employment. The WCJ found as follows:
Thus, and when [C]laimant benefitted from averring that he was
not working during litigation, he was either unable to work or
simply not working. When the [C]laimant benefitted from
averring that he was working during litigation, he was able to
produce limited information suggesting he was working, but
with little “income” by his own report. Claimant would have
this Workers’ Compensation Judge believe that the only time he
had self-employment earnings was in 2004 (when his self-
employment came to light and resulted in his discharge) and in
2009 – which only commenced after his March 2009
deposition, but only disclosed after he did not prevail.
WCJ Bloom Decision, March 27, 2014, at 16; Finding of Fact No. 40. Further,
Claimant was inconsistent about the number of his projects and how much he
earned. The WCJ specifically found:
This Workers’ Compensation Judge recognizes that [C]laimant
would allege that this was a “small business” and that he made
little to no money. However, and for this Judge to credit the
same, then [C]laimant must be found credible. Simply stated,
9
The WCJ has complete authority over questions of credibility and evidentiary weight. Sherrod
v. Workmen’s Compensation Appeal Board (Thoroughgood, Inc.), 666 A.2d 383, 385 (Pa.
Cmwlth. 1995).
8
[C]laimant is not found credible. Further, [C]laimant asserts
that following expenses, he made no money, yet, and again, he
seemingly has little to no records – which would be in his sole
possession – to confirm that he made no money, or that his
expenses resulted in “no income.”
***
This Workers’ Compensation Judge recognizes that [C]laimant
may now have difficulty securing and/or locating information
from 2009 relative to self-employment, yet this cannot excuse
[C]laimant herein. After all, if [C]laimant had properly
produced information and reported his income as required at
said time, there would be no issue.
Id. at 16-17; Finding of Fact No. 40. The WCJ summarized Claimant’s credibility
problem as follows:
This case thus presents this Workers’ Compensation Judge with
one of two options as to [C]laimant’s credibility. At worst,
[C]laimant has knowingly misrepresented and/or withheld
information as to his self-employment at various times during
his claim. If this is the case, then [C]laimant cannot benefit
from his own malfeasance. At best, [C]laimant was mistaken
as to what had to be reported and when it was to be reported,
and otherwise engaged in poor record keeping to confirm his
averments. Yet, neither alternative allows this [WCJ] to find
him credible or to find in his favor.
Id. at 17; Finding of Fact No. 42.
The WCJ concluded that under these circumstances, where Claimant’s
earnings cannot be determined, “a suspension is fully justified.” Id. at 17;
Conclusion of Law No. 2. Accordingly, the WCJ suspended Claimant’s benefits as
of June 2009.10
10
The WCJ dismissed Employer’s modification request as moot.
9
Claimant, through counsel, appealed to the Board. Claimant argued
that the WCJ erred in placing the burden of proof on him. It was Employer’s
burden to show that Claimant had earnings sufficient to warrant a suspension. The
Board affirmed, reasoning that the burden was properly placed on Claimant to
supply Employer with documentary evidence of his self-employment. Claimant
then petitioned for this Court’s review.11
On appeal, Claimant, pro se, argues that his benefits were erroneously
suspended because Employer did not prove the amount of Claimant’s earning
power. Claimant also argues that the WCJ’s decision is not reasoned 12 and
demonstrated a bias in favor of Employer.13
In his burden of proof issue, Claimant argues that Employer had to
present evidence to support its position that Claimant had earnings from self-
employment that surpassed his pre-injury wages. Because Employer did not do so,
Claimant’s benefits cannot be suspended. We disagree.
A claimant is entitled to disability compensation to the extent his
work injury has negatively impacted his earning power. Dillon v. Workmen’s
Compensation Appeal Board (Greenwich Collieries), 640 A.2d 386, 391 (Pa.
1994). Section 311.1 of the Workers’ Compensation Act14 (Act) requires a
11
This Court’s review of an adjudication of the Board is to determine whether the necessary
findings of fact are supported by substantial evidence, whether Board procedures were violated,
whether constitutional rights were violated or whether an error of law was committed. Cytemp
Specialty Steel v. Workers’ Compensation Appeal Board (Crisman), 39 A.3d 1028, 1033 n.6 (Pa.
Cmwlth. 2012).
12
Claimant argued in his appeal to the Board that WCJ Bloom’s decision was not sufficiently
reasoned, but the Board did not specifically address that issue.
13
We have rearranged the order of Claimant’s arguments for organizational purposes.
14
Act of June 2, 1915, P.L. 736, as amended, added by the Act of June 24, 1996, P.L. 350, 77
P.S. §631.1.
10
claimant who receives wages to report them to his employer within 30 days. 77
P.S. §631.1. In addition, the claimant “is obligated to cooperate with the insurer in
an investigation of employment, self-employment, wages and physical condition.”
77 P.S. §631.1(c). Specifically, Section 311.1 states, in relevant part, as follows:
(a) If an employe files a petition seeking compensation under
section 306(a) or (b) or is receiving compensation under section
306(a) or (b), the employe shall report, in writing, to the insurer
the following:
(1) If the employe has become or is employed or
self-employed in any capacity.
(2) Any wages from such employment or self-
employment.
(3) The name and address of the employer.
(4) The amount of wages from such employment
or self-employment.
(5) The dates of such employment or self-
employment.
(6) The nature and scope of such employment or
self-employment.
(7) Any other information which is relevant in
determining the entitlement to or amount of
compensation.
(b) The report referred to in clause (a) must be made as soon as
possible but no later than thirty days after such employment or
self-employment occurs.
(c) An employe is obligated to cooperate with the insurer in an
investigation of employment, self-employment, wages and
physical condition.
77 P.S. §631.1(a)-(c).
11
Section 311.1 places the burden on the claimant to report wage and
employment information to his employer. Where a claimant, who has sole
possession of the relevant earnings information, refuses to provide it, “a WCJ may
properly suspend a claimant’s benefits.” Brehm v. Workers’ Compensation Appeal
Board (Hygienic Sanitation Co. and Zurich Insurance Company), 782 A.2d 1077,
1085 (Pa. Cmwlth. 2001).
Alessandro v. Workers’ Compensation Appeal Board (Precision Metal
Crafters, LLC), 972 A.2d 1245 (Pa. Cmwlth. 2009), is instructive. There, the
claimant collected total disability compensation for an October 2005 work injury.
Both before and after his injury, the claimant had also worked at Mike’s Car Lot.
The owner of Mike’s Car Lot testified that he had paid the claimant in cash but
kept no records of these transactions. The claimant’s 2005 tax return showed
income of $6,540 from side jobs, but his 2006 tax return reported no income from
side jobs. The WCJ rejected the testimony of the claimant and the owner of
Mike’s Car Lot. Because the employer “had no means of obtaining information
regarding Claimant’s income,” the WCJ suspended the claimant’s benefits until
such time as he documented his earnings with Mike’s Car Lot. Id. at 1248. The
claimant appealed, arguing that his 2005 tax return established the basis for a
modification, not a suspension. He also argued that the Board had placed an
impossible burden on him, i.e., to produce non-existent documents. This Court
affirmed the suspension, reasoning as follows:
Claimant denied he worked for Mike’s Car Lot subsequent to
his work injury. [The owner] also denied that Claimant
performed any work for him subsequent to October 2005.
These individuals’ testimony was rejected on this issue.
Claimant’s reported earnings in his 2005 tax return are not
necessarily representative of what he is earning at the present
time. Unfortunately, both Claimant and [the owner] stated that
12
when payments are made, they are made in cash. There is no
record of any transactions. Based on this factual scenario, the
WCJ was left with no choice but to suspend Claimant’s
benefits.
Id. at 1253-54 (citing Brehm, 782 A.2d 1077).
Here, Claimant admitted that he was self-employed while receiving
workers’ compensation benefits. Employer sought a suspension because Claimant
did not give Employer his earnings information, which was in Claimant’s
exclusive possession and control. The fact that Claimant did not keep adequate
records of his earnings works against him, not Employer. The Board did not err in
suspending Claimant’s disability benefits.15
Claimant also argues that the WCJ did not follow the “true essence”
of the Act, which is to protect the injured worker. The WCJ apparently formed his
opinion about credibility without considering the totality of the evidence. For this
reason, Claimant asserts that the WCJ’s decision is not reasoned.
Section 422(a) of the Act requires the WCJ to issue 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.
77 P.S. §834.16 A decision is reasoned for purposes of Section 422(a) if it allows
for adequate appellate review without further elucidation. Daniels v. Workers’
15
Claimant insists that he cooperated with Employer’s investigation by eventually turning over
everything he had. Even if this is so, Claimant’s recordkeeping for his business was seriously
deficient. The law cannot excuse a claimant who does not have records of his wages because he
failed to keep them or file any tax documents.
16
Section 422(a) states in relevant part:
(Footnote continued on the next page . . . )
13
Compensation Appeal Board (Tristate Transport), 828 A.2d 1043, 1052 (Pa.
2003).
Claimant argues that the WCJ did not explain his finding that
Claimant’s testimony was “evasive, inconsistent and contrary to other evidence of
record.” WCJ Bloom Decision, March 27, 2014, at 14; Finding of Fact No. 39.
Claimant also asserts that the WCJ should not have placed so much emphasis on
the deposits shown in the bank records, which led the WCJ to conclude that
Claimant was engaged in gainful employment. In actuality, he was not employed.
Claimant offered documents from the Social Security Administration
and Pennsylvania Department of Public Welfare relating to his eligibility for
Medicare and welfare. Claimant’s Exhibits 16, 17 and 18. Claimant contends
these agencies found Claimant had no income because he has been totally disabled
since May 21, 2004, and the WCJ erred by not considering this information.17
Claimant also argues that the WCJ failed to consider the “overwhelming amount of
medical evidence and physician testimony.” Claimant’s Brief at 18.
(continued . . . )
All parties to an adjudicatory proceeding 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.
The [WCJ] shall specify the evidence upon which the [WCJ] relies and state the
reasons for accepting it in conformity with this section. When faced with
conflicting evidence, the [WCJ] must adequately explain the reasons for rejecting
or discrediting competent evidence. Uncontroverted evidence may not be rejected
for no reason or for an irrational reason; the [WCJ] must identify that evidence
and explain adequately the reasons for its rejection. The adjudication shall
provide the basis for meaningful appellate review.
77 P.S. §834.
17
Notably, Claimant does not argue that these determinations would be binding in any way on
the workers’ compensation authorities.
14
The WCJ authored a 19-page decision with 42 findings of fact. The
WCJ meticulously summarized the evidence of record, which Claimant’s own
counsel described as “relatively voluminous.” N.T., January 8, 2014, at 11. In
rejecting Claimant’s testimony, the WCJ explained at length why he found it to be
“evasive, inconsistent and contrary to other evidence of record.” The WCJ pointed
out that Claimant’s bank records did not correlate with Claimant’s disability
compensation or his testimony about his income during the relevant time periods.
Claimant argues that there are “logical explanations” for any discrepancy.
Claimant’s Brief at 46. However, it was Claimant’s responsibility to provide these
explanations to the WCJ, and he did not do so. The WCJ alone is the finder of fact
and has the power to make credibility determinations; this Court may not disturb
them. Davis v. Workers’ Compensation Appeal Board (City of Philadelphia), 753
A.2d 905, 909 (Pa. Cmwlth. 2000).
Claimant’s reliance on the documents from the Social Security
Administration and Department of Public Welfare is misplaced. The WCJ noted
that they reflect the earnings reported by Claimant but not his earnings in 2004 and
2009. Thus, they are not relevant to the issue in this case, i.e., documentation of
Claimant’s self-employment.
Likewise, Claimant argues that the WCJ ignored an “overwhelming
amount of medical evidence and physician testimony.” Claimant’s Brief at 18.
Claimant submitted one medical report, which the WCJ noted, but it was not
relevant. Section 422(a) requires the WCJ to make findings necessary to resolve
the issues raised by the evidence. Dorsey v. Workers’ Compensation Appeal
Board (Crossing Construction Company), 893 A.2d 191, 194 n.4 (Pa. Cmwlth.
2006). Claimant himself said he was self-employed. The suspension litigation
15
was about Claimant’s self-employment. The WCJ rendered all necessary findings
on this issue and explained the rationale for his decision, allowing for adequate
appellate review. This fulfilled the Act’s reasoned decision requirement.
Claimant further argues that his “largest quarrel” with the suspension
is that WCJ Bloom seemed to be prejudiced against him. Claimant’s Brief at 21.
However, Claimant did not raise bias before the WCJ or in his appeal to the Board.
The “law is well settled that issues not raised before the Board are waived and
cannot be raised for the first time before this Court.” Myers v. Workers’
Compensation Appeal Board (Family Heritage Restaurant), 728 A.2d 1021, 1023
(Pa. Cmwlth. 1999). In any case, our review of the record shows that WCJ Bloom
conducted the proceedings in a professional and impartial manner, giving Claimant
numerous extensions of time to retain an attorney and to submit his evidence.
Pointing out WCJ Bloom’s reasons for his adverse credibility determination is not
evidence of bias.18
In sum, because Claimant stated he was engaged in self-employment
projects but did not provide Employer with adequate information to ascertain his
18
Claimant also argues that Employer should not be permitted to take the position it did in the
instant litigation, i.e., that Claimant was working, because it is diametrically opposed to
Employer’s position in the prior litigation, i.e., that Claimant had voluntarily withdrawn from the
workforce. This issue was not raised before the Board and is waived. At any rate, during the
prior litigation, Employer did not know Claimant was working. After finding out about the self-
employment from Claimant himself, Employer properly pursued a suspension.
Claimant also argues that the WCJ misstated Claimant’s testimony and made numerous
unfair statements in several of his findings of fact. Claimant believes the Board should have
pointed out these flaws in the WCJ’s decision. Again, these issues were not presented to the
Board and are waived. At any rate, slight deviations between the testimony and summary are
inconsequential. Claimant disagrees with the WCJ’s interpretation of the evidence, but the WCJ
is solely responsible for the weight to be assigned the evidence and rendering findings of fact.
16
earnings, the Board did not err in suspending Claimant’s disability benefits.
Accordingly, the order of the Board is affirmed.
______________________________
MARY HANNAH LEAVITT, Judge
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kenneth Marinack, :
Petitioner :
:
v. : No. 871 C.D. 2015
:
Workers’ Compensation Appeal :
Board (City of Pittsburgh Fire Bureau), :
Respondent :
ORDER
AND NOW, this 19th day of February, 2016, the order of the
Workers’ Compensation Appeal Board dated March 24, 2015, in the above-
captioned matter is hereby AFFIRMED.
______________________________
MARY HANNAH LEAVITT, Judge