S. Bouges v. City of Philadelphia (WCAB) ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sharon Bouges, :
Petitioner :
: No. 565 C.D. 2022
v. :
: Submitted: January 27, 2023
City of Philadelphia (Workers’ :
Compensation Appeal Board), :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: August 30, 2023
In this workers’ compensation (WC) case, Petitioner Sharon Bouges
(Claimant) petitions for review of the May 10, 2022 Opinion and Order of the Workers’
Compensation Appeal Board (Board), which affirmed the November 29, 2021
Decision and Order of Workers’ Compensation Judge (WCJ) Todd Seelig (WCJ
Seelig). WCJ Seelig granted the Petition to Modify Compensation Benefits
(Modification Petition) filed by Respondent City of Philadelphia (Employer) and
modified Claimant’s WC benefit status from temporary total disability (TTD) to
temporary partial disability (TPD) based on an Impairment Rating Evaluation (IRE)
performed on January 7, 2021. Upon review, we affirm the Board.
I. FACTS AND PROCEDURAL HISTORY
On May 18, 2010, Claimant was injured in the course and scope of her
employment with Employer when she fell on a wet floor. (WCJ Seelig Finding of Fact
(FOF) 2; Reproduced Record (R.R.) at 13a.) Claimant’s injuries were acknowledged
by Employer in a Notice of Compensation Payable (NCP) issued on June 29, 2010,
which generally described the injuries as strain/sprain/contusions of the right ankle and
both knees. (FOF 3; R.R. at 13a.) The injuries later were expanded and more clearly
defined in the April 17, 2015 Decision of WCJ Andrea McCormick (WCJ McCormick)
as persistent right ankle swelling and sprain/strain with synovitis and traumatic
lymphedema. Id.1 Claimant received weekly TTD WC benefits in the amount of
$845.00 based on her average weekly wage of $1,560.06. (FOF 3; R.R. at 13a.)
On January 7, 2021, pursuant to Section 306(a.3) of the Workers’
Compensation Act (WC Act),2 also known as Act 111, Claimant underwent an IRE
performed by Dr. Daisy Rodriguez (Dr. Rodriguez) using the Sixth Edition, second
printing of the American Medical Association Guides to the Evaluation of Permanent
Impairment (AMA Guides). (FOF 4(b); R.R. at 14a.) Based on her evaluation, Dr.
Rodriguez concluded that Claimant had a whole-person impairment rating of 7%.3
(FOF 4(f); R.R. at 15a.) Employer accordingly filed its Modification Petition on
February 11, 2021, seeking to reduce Claimant’s WC benefit status from TTD to TPD.
Before WCJ Seelig, Employer presented Dr. Rodriguez’s deposition
testimony. Dr. Rodriguez testified that, on the date of the IRE, Claimant’s chief
complaints included right ankle and foot pain, bilateral knee pain, bilateral
lymphedema, back and neck pain with left hand numbness, and a healed fracture of the
1
Claimant sustained a second work-related injury on July 5, 2011, when she was involved in
a motor vehicle accident while traveling to physical therapy for the May 18, 2010 injury. (WCJ
McCormick Finding of Fact 2; R.R. at 80a.)
2
Act of June 2, 1915, P.L. 736, as amended. Section 306(a.3) was added by the Act of October
24, 2018, P.L. 714, No. 111 (Act 111), 77 P.S. § 511.3.
3
Dr. Rodriguez initially concluded that Claimant’s whole-person impairment rating was 6%,
but she later amended her calculation to 7%. (FOF 4(f) n.2; R.R. at 15a.)
2
right fifth distal interphalangeal joint. (FOF 4(b); R.R. at 14a.) Claimant stated that
her right foot and ankle pain was worse with walking, standing, and all static positions,
and she had throbbing at night. (FOF 4(c); R.R. at 14a.) After obtaining Claimant’s
medical history, reviewing her medical records, and performing a physical
examination, Dr Rodriguez diagnosed Claimant with a sprain of the right ankle with
post-surgical repair, contusions of the bilateral knees, and complaints of post-traumatic
chronic pain with demonstrated gait abnormality. Dr. Rodriguez determined that
Claimant was at maximum medical improvement (MMI), which is defined in the AMA
Guides as a status where the patient is as good as they are going to be from the medical
and surgical treatment available to them. (FOF 4(d)-(e); R.R. at 14a-15a.)
Dr. Rodriguez went on to explain why the expanded description of
Claimant’s injury, which included persistent right ankle swelling with synovitis and
traumatic lymphedema, did not alter her calculation of Claimant’s impairment rating:
[ ] After Dr. Rodriguez determined [that] Claimant was at
[maximum medical improvement (MMI)], she performed an
[IRE] using the [AMA Guides]. Using the [AMA Guides] Dr.
Rodriguez determined Claimant’s whole[-]person impairment
was 7[%]. Dr. Rodriguez’[ ] calculation of whole[-]person
impairment is not altered by Claimant’s knee contusions or the
persistent right ankle swelling with synovitis and traumatic
lymphedema. In terms of knee contusions, Claimant had no
signs of contusions, there were no motion deficits, there were
no objective abnormal findings on physical examination of the
knees[,] and there were no diagnostic studies to show any sign
of contusion[,] which puts [Claimant] [at] . . . a zero percent
lower extremity impairment. As for the lymphedema, Dr.
Rodriguez did not find any pitting edema or other findings of
physical examination or findings of radiographic studies that
would be consistent with lymphedema. Dr. Rodriguez looked
up lymphedema in the [AMA Guides] and also determined that
[ ] Claimant presented with none of the signs of lymphedema
including: a breakdown of the skin, lesions, oozing of the skin,
3
puckering, or pitting. For that reason, Dr. Rodriguez assigned
the lymphedema [a] zero. For those reasons, the knee
contusions and lymphedema would not change or affect Dr.
Rodriguez’s rating of 7[%] whole[-]person impairment.
(FOF 4(f); R.R. at 15a) (citation and footnote omitted). Dr. Rodriguez further
explained that, although her written IRE report had errors in formatting, templating,
and dictation, the calculations given in her testimony nevertheless were correct. (FOF
4(g),(i); R.R. at 15a.)
Claimant did not present any evidence to refute Dr. Rodriguez’s opinions.
(FOF 5; R.R. 16a.) She instead argued that Act 111 was unconstitutional and that it
was an unlawful delegation of legislative authority. WCJ Seelig accepted Dr.
Rodriguez’s testimony as credible and rejected Claimant’s arguments challenging the
validity of Act 111, in part pursuant to this Court’s decision in Pennsylvania AFL-CIO
v. Commonwealth, 219 A.3d 306 (Pa. Cmwlth. 2020). (FOF 5-7; R.R. at 16a.) WCJ
Seelig granted Employer’s Modification Petition and reduced Claimant’s WC benefit
status from total to partial as of January 7, 2021, the date of the IRE. (WCJ Seelig
Conclusion of Law 2; R.R. at 17a.)
Claimant appealed to the Board, arguing that (1) Act 111 could not
constitutionally be applied to her injury, which occurred before its effective date, and
(2) that Dr. Rodriquez’s IRE and related opinions did not constitute substantial
evidence supporting the change in Claimant’s WC benefit status. (R.R. at 21a-23a.)
The Board affirmed, and Claimant now petitions for review in this Court.
II. ISSUES PRESENTED
Although Claimant identifies four issues in her brief, they fairly can be
combined into two: (1) whether Act 111 may constitutionally be applied to Claimant’s
injury, which occurred before Act 111’s effective date; and (2) whether the WCJ’s
findings are supported by substantial evidence. Employer raises an additional issue,
4
namely, whether Claimant’s appeal is frivolous and warrants an award of attorneys’
fees pursuant to Pennsylvania Rule of Appellate Procedure (Pa. R.A.P.) 2744.
III. DISCUSSION4
A. Act 111
In her first series of issues, Claimant argues, as she did before WCJ Seelig
and Board, that retroactive application of Act 111 violates due process and the
Remedies Clause of the Pennsylvania Constitution.5
On September 18, 2015, almost five and one-half years after Claimant’s
May 18, 2010 injury, this Court issued its decision in Protz v. Workers’ Compensation
Appeal Board (Derry Area School District), 124 A.3d 406 (Pa. Cmwlth. 2015) (Protz
I), affirmed in part and reversed in part, 161 A.3d 827 (Pa. 2017) (Protz II), declaring
former Section 306(a.2) of the WC Act6 void in its entirety. In Protz II, the
4
Our review is limited to determining whether the WCJ’s findings of fact were supported by
substantial evidence, whether an error of law was committed, or whether constitutional rights were
violated. Phoenixville Hospital v. Workers’ Compensation Appeal Board (Shoap), 81 A.3d 830, 838
(Pa. 2013). “Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” City of Philadelphia v. Workers’ Compensation Appeal Board
(Kriebel), 29 A.3d 762, 769 (Pa. 2011).
5
The Remedies Clause provides, in pertinent part, that “[a]ll courts shall be open; and every
man for an injury done him in his lands, goods, person or reputation shall have remedy by due course
of law, and right and justice administered without sale, denial, or delay. . . .” Pa. Const. art. I, § 11.
6
Section 306(a.2), formerly 77 P.S. § 511.2, was repealed by Act 111 and replaced by Section
306(a.3). Section 306(a.2) provided, in pertinent part, as follows:
When an employe has received total disability compensation pursuant to
clause (a) for a period of [104] weeks . . . the employe shall be required to
submit to a medical examination . . . to determine the degree of impairment
due to the compensable injury, if any . . . . The degree of impairment shall
be determined based upon an evaluation by a physician . . . pursuant to the
most recent edition of the [AMA Guides] . . . (2) If such determination
results in an impairment rating that meets a threshold impairment rating that
(Footnote continued on next page…)
5
Pennsylvania Supreme Court held that the General Assembly, in authorizing the
application of future versions of the AMA Guides without review, had
unconstitutionally delegated its lawmaking authority in violation of the non-delegation
doctrine.7 161 A.3d at 840-41. The Court invalidated Section 306(a.2) in its entirety.
On October 24, 2018, in response to Protz II, the General Assembly
passed Act 111, which replaced former Section 306(a.2) of the Act with Section
306(a.3). Section 306(a.3) reads in relevant part:
(1) When an employe has received total disability compensation
pursuant to clause (a) for a period of one hundred four weeks . .
. the employe shall be required to submit to a medical
examination . . . to determine the degree of impairment due to
the compensable injury, if any. The degree of impairment shall
be determined based upon an evaluation by a physician . . .
pursuant to the [Sixth Edition, second printing of the AMA
Guides].
(2) If such determination results in an impairment rating that
meets a threshold impairment rating that is equal to or greater
than [35%] . . . , the employe shall be presumed to be totally
disabled and shall continue to receive total disability
compensation benefits . . . . If such determination results in an
impairment rating less than [35%] impairment . . . , the employe
shall then receive partial disability benefits under clause (b) . . . .
77 P.S. § 511.3. Section 3 of Act 111 further provides, in pertinent part, as follows:
is equal to or greater than [50%] . . . the employe shall be presumed to be
totally disabled and shall continue to receive total disability compensation
benefits. . . . If such determination results in an impairment rating less than
[50%] impairment . . . the employe shall then receive partial disability
benefits under class (b) . . . .
Former 77 P.S. § 511.2.
7
Pa. Const. art. II, § 1 (“The legislative power of this Commonwealth shall be vested in a
General Assembly, which shall consist of a Senate and a House of Representatives.”).
6
(1) For the purposes of determining whether an employee shall
submit to a medical examination to determine the degree of
impairment and whether an employee has received total
disability compensation for the period of 104 weeks under
[S]ection 306(a.3)(1) of the [WC A]ct, an insurer shall be given
credit for weeks of total disability compensation paid prior to the
effective date of this paragraph. This section shall not be
construed to alter the requirements of section 306(a.3) of the
[WC A]ct.
(2) For the purposes of determining the total number of weeks
of partial disability compensation payable under [S]ection
306(a.3)(7) of the [WC A]ct, an insurer shall be given credit for
weeks of partial disability compensation paid prior to the
effective date of this paragraph.
77 P.S. § 511.3, Historical and Statutory Notes.
In Pierson v. Workers’ Compensation Appeal Board (Consol
Pennsylvania Coal Co.), 252 A.3d 1169 (Pa. Cmwlth. 2021),8 the claimant sustained a
work-related injury on August 13, 2014. The employer acknowledged the injury via
NCP, and the claimant received TTD benefits. 252 A.3d at 1171-72. On December
21, 2018, the employer filed a modification petition pursuant to newly-enacted Section
306(a.3) seeking to change the claimant’s benefits from TTD to partial disability based
on an IRE performed on December 19, 2018. Id. at 1172. The claimant lodged
constitutional challenges to Section 306(a.3) before both the WCJ and the Board, both
of which declined to address the challenges. Id.9 On appeal to this Court, the claimant
argued that (1) Section 306(a.3) is unconstitutional “on its face,” and (2) Section
306(a.3) cannot be applied retroactively to claims that originated (i.e., have an injury
8
Although Pierson initially was filed as an unpublished memorandum, on application of the
Pennsylvania Bar Association Workers’ Compensation Law Section, we ordered publication on April
26, 2021. See Pa. R.A.P. 3740.
9
The claimant in Pierson also challenged the credibility of the physician performing the
subject IRE, an issue not before us in this appeal.
7
date) prior to October 24, 2018, the effective date of the new IRE mechanism. The
claimant further argued that Act 111 involved a change in substantive law, that Protz
II invalidated any IRE mechanism that could apply to his claim, and that the application
of Act 111 to his claim retroactively violates vested rights specifically secured by due
process and the Remedies Clause of the Pennsylvania Constitution. Id. at 1174-76.
We rejected the claimant’s arguments, relying chiefly on our prior
decisions in Pennsylvania AFL-CIO v. Commonwealth, 219 A.3d 306 (Pa. Cmwlth.
2019), and Rose Corporation v. Workers’ Compensation Appeal Board (Espada), 238
A.3d 551 (Pa. Cmwlth. 2020). Because our analysis in Pierson is controlling here, we
quote it at length:
In [Pennsylvania AFL-CIO], we determined [that] Act 111 was
not an unconstitutional delegation of legislative authority, as the
prior IRE provision of the [WC] Act was determined to be. . . .
Our opinion in Pennsylvania AFL-CIO was affirmed by a brief
per curiam order of our Supreme Court. . . . Although we
acknowledge that the determination in Pennsylvania AFL-CIO
was relative to whether Act 111 was an unconstitutional
delegation of legislative authority, it was nevertheless a test of
[the] [ ] assertion that Act 111 is unconstitutional “on its face,”
and the consensus was that it is not. . . .
In addition, and in regard to the issue of the retroactive
application of the 104-week and credit provisions of Act 111, we
first address [the] [ ] contention that Protz II rendered former
Section 306(a.2) of the Act void ab initio . . . .
In [Warren v. Folk, 886 A.2d 305 (Pa. Super. 2005)], the
Pennsylvania Superior Court explained that it, and our Supreme
Court, had considered the issue of retroactivity in terms of
whether the statute in question affects vested rights and
determined that
[w]here no vested right or contractual obligation is
involved, an act is not retroactively construed when
applied to a condition existing on its effective date
8
even though the condition results from events prior
to that date. . . . A “vested right” is one that “so
completely and definitely belongs to a person that it
cannot be impaired or taken away without the
person’s consent.”
While [the] [c]laimant, here, argues that he has a right to benefits
as calculated at the time of injury, there are reasonable
expectations under the [WC] Act that benefits may change. We
acknowledge that a claimant retains a certain right to benefits
until such time as he is found to be ineligible for them. However,
claimants, such as the one in the matter before us, did not
automatically lose anything by the enactment of Act 111. Act
111 simply provided employers with the means to change a
claimant’s disability status from [TTD] to [TPD] by providing
the requisite medical evidence that the claimant has a whole[-]
body impairment of less than 35%, after receiving 104 weeks of
TTD benefits.
As this Court opined in Rose Corporation, the General Assembly
made it clear in [Section 3 of] Act 111 that weeks of TTD and
[TPD] by an employer/insurer prior to the enactment of Act 111
count as credit against an employer’s new obligations under Act
111. In Rose Corporation, we said, in reference to Act 111:
The plain language of Section 3 establishes a
mechanism by which employers/insurers may
receive credit for weeks of compensation previously
paid. First, Section 3(1) provides that an
employer/insurer “shall be given credit for weeks of
total disability compensation paid prior to the
effective date of this paragraph” for purposes of
determining whether the 104 weeks of total
disability had been paid. This 104 weeks is
important because, under both the former and
current IRE provisions, a claimant need not attend
an IRE until after the claimant receives 104 weeks
of total compensation. 77 P.S. § 511.3(1); former
77 P.S. § 511.2(1). See Section 3(1) of Act 111.
Therefore, pursuant to Section 3(1), an
employer/insurer will receive credit towards this
9
104 weeks for any weeks of total disability benefits
that were previously paid prior to Act 111’s
enactment. Second, an employer/insurer will be
given credit for any weeks of partial disability
compensation paid prior to enactment of Act 111
“for the purposes of determining the total number of
weeks of partial disability compensation payable
under Section 306(a.3)(7) of the WC Act.” Section
3(2) of Act 111. In short, any weeks of partial
disability previously paid will count towards the
500-week cap on such benefits.
[Rose Corporation], 238 A.3d at 561-62. [W]e also added:
“Through the use of very careful and specific language, the
General Assembly provided employers/insurers with credit for
the weeks of compensation, whether total or partial in nature,
previously paid.” [Id.] at 562.
....
[The] [c]laimant, herein [ ] argues that the General Assembly
cannot take away his “vested rights” and that it did not explicitly
express an intent to apply the provisions of Act 111 in any sort
of a retroactive fashion. As we noted above, [the] [c]laimant’s
“vested rights” have not been abrogated by Act 111. Further, we
believe it is clear that the General Assembly intended for the 104-
week and credit weeks provisions of Act 111 to be given
retroactive effect, where, as we noted in Rose Corporation, it
stated in plain language it was doing so. Thus, [the c]laimant
does not prevail in his arguments relative to the constitutionality
of Act 111, and we see no reason to disturb the Board’s Order
affirming the WCJ.
Id. at 1178-80. See also DiPaolo v. UPMC Magee Women’s Hospital (Workers’
Compensation Appeal Board), 278 A.3d 430, 432-38 (Pa. Cmwlth. 2022), appeal
denied, 290 A.3d 237 (Pa. 2023).
Claimant argued throughout the proceedings before WCJ Seelig and
Board, and argues again in this Court, that Act 111 was not intended to apply
10
retroactively, constitutes an invalid delegation of legislative authority, and, to the
extent that it does apply retroactively, is unconstitutional. In Pierson, which we again
reaffirm, we concluded that Act 111 clearly was intended to apply retroactively, is not
an invalid delegation of legislative authority, and does not violate due process or the
Remedies Clause of the Pennsylvania Constitution. We therefore must conclude that
Claimant’s arguments in this regard are without merit.
B. Substantial Evidence
Claimant also argues that WCJ Seelig’s findings are not supported by
substantial evidence because Dr. Rodriguez’s testimony and report do not credibly
support a change in benefit status from TTD to TPD. Claimant contends that Dr.
Rodriguez’s opinions were not based on the expanded description of Claimant’s injury
identified in WCJ McCormick’s findings and that Dr. Rodriguez omitted from her IRE
calculation any consideration of Claimant’s bilateral knee contusions or traumatic
lymphedema. Claimant therefore argues that Dr. Rodriguez’s testimony, even though
uncontradicted, could not support WCJ Seelig’s findings. We disagree.
To prevail on its Modification Petition, Employer had the burden to prove,
with substantial evidence, that Claimant had a whole-person impairment rating of less
than 35% pursuant to the AMA Guides. See 77 P.S. § 511.3(1), (2). “Substantial
evidence” is such relevant evidence that a reasonable person might accept as adequate
to support a conclusion. Waldameer Park, Inc. v. Workers’ Compensation Appeal
Board (Morrison), 819 A.2d 164, 168 (Pa. Cmwlth. 2003). In conducting a substantial
evidence analysis, we view the evidence in a light most favorable to the party that
prevailed before the WCJ. Id. Speculation or conjecture alone are insufficient to
support a finding, but where one is able to draw reasonable and logical inferences from
the evidence presented, conclusions based on those inferences will be sufficient even
11
if other conclusions are possible. West Penn Allegheny Health System, Inc. v. Workers’
Compensation Appeal Board (Cochenour), 251 A.3d 467, 475 (Pa. Cmwlth. 2021).
Further, the WCJ is the factfinder and has the sole prerogative to assess
credibility and resolve conflicts in the evidence. Hawbaker v. Workers’ Compensation
Appeal Board (Kriner’s Quality Roofing Services), 159 A.3d 61, 69 (Pa. Cmwlth.
2017). Neither the Board nor this Court may reweigh the evidence or the WCJ’s
credibility determinations. Id. For purposes of appellate review, it is irrelevant whether
there is evidence to support findings contrary to those made by the WCJ; if substantial
evidence supports the WCJ’s necessary findings, they will not be disturbed on appeal.
Verizon Pennsylvania Inc. v. Workers’ Compensation Appeal Board (Mills), 116 A.3d
1157, 1162 (Pa. Cmwlth. 2015).
Claimant argues that Dr. Rodriguez’s testimony contradicted her IRE
report and that Dr. Rodriguez did not consider the expanded description of Claimant’s
injury in making her IRE calculations. However, Dr. Rodriguez was asked directly
about the expanded description of Claimant’s injury, including her complained-of knee
contusions and lymphedema, and she testified that those conditions did not change her
calculation of Claimant’s impairment rating. (FOF 4(f); R.R at 15a; see also R.R. at
125a-27a; 146a-49a.) Dr. Rodriguez explained and corrected any inconsistencies in
her IRE report and testified clearly that Claimant’s impairment rating remained at 7%.
Id. Thus, we must conclude that Claimant’s arguments simply challenge WCJ Seelig’s
credibility determinations, which we will not disturb, particularly where, as here,
Claimant presented no medical evidence to rebut Dr. Rodriguez’s conclusions. We
thus agree with the Board that WCJ Seelig’s findings regarding Claimant’s impairment
rating are supported by substantial evidence.
12
C. Attorneys’ Fees
Employer argues that Claimant’s challenges to Act 111 have no basis in
law or fact and have been addressed and rejected by this Court on multiple occasions.
Employer argues that “the case law is now well[ ]established” and that Claimant is
“simply regurgitating arguments that have been previously addressed by this Court.”
(Employer Br. at 16.) Employer accordingly requests an award of $1,000.00 in
attorneys’ fees pursuant to Pa. R.A.P. 2744.10
The imposition of counsel fees and costs under Rule 2744 is within this
Court’s discretion. Canal Side Care Manor, LLC v. Pennsylvania Human Relations
Commission, 30 A.3d 568, 579 (Pa. Cmwlth. 2011). An appeal is frivolous if “no
justifiable question has been presented” and the appeal “is readily recognizable as
devoid of merit in that there is little prospect of success.” Id. (citing Department of
Transportation v. Workmen’s Compensation Appeal Board (Tanner), 654 A.2d 3 (Pa.
Cmwlth. 1994)). In exercising our discretion regarding whether to award attorney’s
fees, we are “mindful of the need to avoid unjustly penalizing an appellant for
exercising her right to fully exhaust her legal remedies.” Id. (citing Watkins v.
Unemployment Compensation Board of Review, 689 A.2d 1019, 1022 (Pa. Cmwlth.
1997)).
Although we agree with Employer that this Court clearly and repeatedly
has rejected challenges to the constitutionality of Act 111 (and we do so once again in
this case), we nevertheless cannot conclude that Claimant’s entire petition for review
is frivolous and bereft of any basis in law or fact. Had Claimant only challenged Act
10
Rule 2744 pertinently provides that an appellate court may award reasonable attorneys’ fees
“if it determines that an appeal is frivolous or taken solely for delay or that the conduct of the
participant against whom costs are to be imposed is dilatory, obdurate, or vexatious.” Pa. R.A.P.
2744.
13
111 in this appeal, Employer’s argument would have more force. Claimant, however,
also challenged WCJ Seelig’s findings regarding Dr. Rodriguez’s testimony and its
sufficiency to support Employer’s Modification Petition. Although we conclude that
Dr. Rodriguez’s testimony provides substantial evidence justifying the change of
Claimant’s WC benefit status from TTD to TPD, the testimony did contain certain
apparent inconsistencies and mistakes that required correction and further explanation.
The WCJ found, and we agree, that Dr. Rodriguez offered sufficient explanations for
any such inconsistencies and errors, but we also find that they provided Claimant with
at least a plausible argument on appeal. For that reason, we deny Employer’s request
for attorneys’ fees.
IV. CONCLUSION
WCJ Seelig did not err in applying Act 111 to Claimant’s injury, and his
findings of fact are supported by substantial evidence. Claimant’s issues on appeal
therefore are without merit. We accordingly affirm the Board. Finally, because we
conclude that Claimant’s appeal was not frivolous, we deny Employer’s request for
attorneys’ fees pursuant to Pa. R.A.P. 2744.
________________________________
PATRICIA A. McCULLOUGH, Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sharon Bouges, :
Petitioner :
: No. 565 C.D. 2022
v. :
:
City of Philadelphia (Workers’ :
Compensation Appeal Board), :
Respondent :
ORDER
AND NOW, this 30th day of August, 2023, the May 10, 2022 order of
the Workers’ Compensation Appeal Board hereby is AFFIRMED. Respondent City
of Philadelphia’s request for attorneys’ fees pursuant to Pennsylvania Rule of
Appellate Procedure 2744 is DENIED.
________________________________
PATRICIA A. McCULLOUGH, Judge