Dunbar Armored & Arch Ins. Co./TPA Gallagher Bassett Services v. Z. Fisher (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dunbar Armored and :
Arch Insurance Company/ :
TPA Gallagher Bassett Services, :
Petitioners :
:
v. : No. 463 C.D. 2021
: SUBMITTED: December 13, 2021
Zackery Fisher (Workers’ :
Compensation Appeal Board), :
Respondent :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: February 4, 2022
Dunbar Armored, Arch Insurance Company, and TPA Gallagher Bassett
Services (collectively, Employer) petition for review of the March 30, 2021 order
by the Workers’ Compensation Appeal Board (Board), which affirmed a Workers’
Compensation Judge’s (WCJ) decision to award Workers’ Compensation (WC)
benefits to employee Zackery Fisher (Claimant). Employer argues that the Board
should have reversed the WCJ’s decision due to his failure to issue a reasoned
decision. Upon review, we reverse on the basis that the WCJ’s decision was not
supported by substantial evidence.
I. Background
Claimant worked for Employer, an operator of armored trucks, for several
years as a coin vault teller.1 His duties included loading and unloading wooden skids
and other bulky items on and off hand-operated pallet trucks. Reproduced Record
(R.R.) at 155a. Claimant performed these tasks in a poorly ventilated space inside a
warehouse. Id. On the morning of January 9, 2019, while working in the coin vault,
Claimant began to feel dizzy and experienced difficulty writing. Id. He was taken to
a hospital where a doctor determined that he had been exposed to carbon monoxide.
Id.
In the weeks following the incident, Claimant began experiencing shortness
of breath and difficulty concentrating. Id. at 171a. In late February, he visited a
family physician to seek treatment for those symptoms. The physician prescribed an
antidepressant. Id. at 172a. Claimant also purchased a carbon monoxide detector at
his own expense and placed it near his workspace. On March 11, the detector
sounded its alarm, and Claimant’s supervisor evacuated the three or four employees
then inside the building. Id. at 175a. There is no record that Claimant was exposed
to, or sought treatment for, carbon monoxide fumes in that incident. He was
emotionally shaken, however, and excused to go home. Id. He did not return to work
for four months.
On April 11, 2019, Claimant submitted a workers’ compensation claim. Id. at
17a. In his petition, Claimant alleged that he suffered from “[c]arbon monoxide
poisoning and [post-traumatic stress disorder]”. The petition explained that
Claimant’s “[e]xposure to carbon monoxide” caused “severe illness which led to
panic attacks.” Id. Claimant asserted that this injury was the cause of his inability to
1
The record is inconsistent as to Claimant’s start date. Various sources say he began
working for Employer in 2011, 2013, or 2014.
2
work. Id. On the same day, Claimant submitted a separate Petition for Penalties
asserting that Employer had “failed to accept or deny this claim and issued no Bureau
documents in accordance with the [WC] Act.”2 Id. at 8a. It called for a penalty of
50% of WC benefits for the alleged violation, plus counsel fees for an unreasonable
contest under Section 440 of the WC Act.3 Employer filed timely Answers denying
the allegations in both petitions. Id. at 14a, 24a.
Claimant’s testimony
Claimant testified at a hearing before the WCJ on July 18, 2019. He recounted
that, on the morning of January 9, he was “fixing the floor in the coin vault.” July
18 Hearing, Notes of Testimony (N.T.) at 8. When he rose to fill out paperwork, he
noticed that he “didn’t have control of [his] left hand,” and felt as though he was
“going to pass out.” Id. at 9. Claimant’s coworker summoned Claimant’s supervisor,
who drove him to the emergency room at York Hospital. Claimant felt “a little bit
dizzy” upon his release after a few hours and spent the rest of the day at home. Id.
at 12.
Upon Claimant’s return to work the next day, his supervisor informed him
that the gas heater in the coin vault area had malfunctioned and had been
disconnected as a result of the incident. Id. at 12-13. The supervisor also instructed
Claimant to visit a nearby Concentra medical office. The evaluating physician
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710. Claimant’s
2
penalty petition did not cite to a specific provision in the WC Act. However, Claimant’s appeal to
this Court indicates that the petition was referring to Employer’s requirement to accept or deny
compensation following a workplace injury within 21 days. See Waldameer Park, Inc. v. Workers’
Comp. Appeal Bd. (Morrison), 819 A.2d 164, 169-70 (Pa. Cmwlth. 2003) (holding that employer
had an obligation to accept or deny workplace injury within 21 days notwithstanding the fact that
claimant suffered no loss of wages) (citing 406.1 of the WC Act, added by the Act of Feb. 8, 1972,
P.L. 25, 77 P.S. § 717.1).
3
Added by the Act of Feb. 8, 1972, P.L. 25, 77 P.S. § 996.
3
released Claimant to return to work without restrictions, and without prescribing
medication. Id. at 13-14.
From January through March, 2019, Claimant experienced moments when he
felt “like [he] couldn’t breathe, and that [he] couldn’t process [his] thoughts clearly.”
Id. at 16. He testified that he would often pace the floor at work, and that he was
“struggling to eat and drink.” Id. He attributed those symptoms to his fear of
“[a]nother carbon monoxide leak,” and so purchased a carbon monoxide detector to
keep near him at work. Id. at 16-17. One evening in late February, Claimant visited
an urgent care practice in hopes of receiving “a mental evaluation.” Id. at 18. The
attending physician referred Claimant to Dr. Rita Clayton, a family doctor, whom
Claimant visited the following day. That visit, and subsequent visits, to Dr. Clayton’s
practice are described in the section immediately below. The physician did not
excuse Claimant from work or prescribe any medication. Id. at 19.
On March 11, 2019, the carbon monoxide detector that Claimant had
purchased sounded its alarm. Claimant notified his branch manager, who evacuated
the three or four employees then inside the building. Claimant went through “an
emotional spiral,” and was excused from work for the remainder of the afternoon.
Id. at 17. He returned to Dr. Clayton’s office on the following day, where he
described his workplace difficulties. Dr. Clayton’s response—according to
Claimant’s own paraphrase—was that he “should take some time from work.” Id. at
19. Accordingly, she wrote him a note asking that he be excused for “[t]wo weeks
to try to find a counselor.”4 Id. at 43.
On the subject of his absence from work, Claimant offered statements that
were not entirely in harmony. When asked by Employer’s counsel for the name of
4
Claimant’s recollection of that length of time is contradicted by Dr. Clayton’s notes,
discussed infra, which indicate that he was given a work note only for “this week.” R.R. at 175a.
4
the physician who was “keeping [him] off work” for the near-four-month period,
Claimant replied, “Rita Clayton.” Id. at 42. He then clarified that he was referring to
the note that Dr. Clayton had given him on March 12, 2019. Id. at 42-43. Claimant
acknowledged that the note imposed no restrictions on his duties. Id. He also
conceded that, at the end of the two-week period that he claimed the note excused
him from work, he did not report back to work. Rather, he took a vacation to Florida
to visit family, a trip for which he flew in an airplane for the first time. Id. at 43-44.
Claimant also acknowledged that, during his extended absence, his doctors at Family
Health Associates (the name of Dr. Clayton’s practice) told him that “it would be
helpful for [him] to return to work.” Id. at 42.
Claimant testified that he returned to work on July 5, 2019. Id. at 23. At the
time of his testimony, he was working in the same position, and in the same location,
with his carbon monoxide detector still in place. Id. at 24. There is no evidence that
Claimant discussed the possibility of light duty with Employer, whether before or
after his return. Describing his relationship with his supervisor since his July return,
Claimant testified that the supervisor “understands the situation that I was struggling
to coping with working in the same workplace, I guess, and having [symptoms of
anxiety]. So, he’s been very generous with me and working with me and we’re just
trying to get me back to 110 percent.” Id. at 48.
Claimant’s medical history
From January 2019 until his return to work in July, Claimant received the
following medical treatment:
• The visit to the York Hospital emergency room (ER) following the January
9, 2019 carbon monoxide exposure incident. R.R. at 154a.
5
• The evaluation by a staff physician at Concentra on the following day. N.T.
at 12-13.
• Claimant’s visit to an urgent care center on the evening of February 26,
2019, in pursuit of “a mental evaluation.” Id. at 18-19.
• Five appointments with Dr. Rita Clayton, a family physician, between
February 27 and May 3, 2019. R.R. at 170a-184a.
• Four appointments with Katherine Weber, a licensed professional counselor,
between April 2 and May 2, 2019. Id. at 171a-183a.
Claimant submitted the report from the ER visit, Dr. Clayton’s notes, and
notes from his sessions with Ms. Weber as his medical exhibits. They are
summarized below.
The York Hospital ER visit
On the morning of January 9, 2019, when Claimant experienced dizziness and
numbness in his left hand, his supervisor drove him to York Hospital. Medical staff
there administered tests of Claimant’s blood and discovered elevated levels of
carbon monoxide in his hemoglobin. R.R. at 154a. The numbness in his hand, which
is listed in the report as his “chief complaint,” vanished after “approximately 10
minutes.” Id. at 155a. Claimant’s feelings of being flushed and lightheaded
“improved” “[a]s soon as he got to the emergency department.” After three hours,
the ER treating physician discharged Claimant since Claimant’s symptoms were
“fully resolved” and that he was “acting at his baseline self.” Id. at 154a.
Claimant’s appointments with Dr. Rita Clayton
The urgent care center that Claimant visited on the evening of February 26,
2019, referred him to Dr. Clayton, whom he saw on the following day. In her notes
from that appointment, Dr. Clayton indicated that Claimant was suffering from
6
“anxiety, panic attacks, racing heart, palpitations and inability to sleep when thinking
about work the next day.” Id. at 172a. She prescribed an antidepressant. Id.
On March 12, 2019, Claimant had a follow-up appointment with Dr. Clayton.
They discussed Claimant’s anxiety symptoms, which persisted but were
“improving,” according to the doctor. Id. at 174a. They also discussed the carbon
monoxide alarm incident, which occurred the previous day, and Claimant’s fear that
his workplace safety concerns were not being addressed. Id. at 175a. “[He] is feeling
he cannot handle it [at] work right now,” she wrote. Id. Dr. Clayton urged Claimant
to seek counseling. She also provided Claimant with a note requesting that Claimant
be excused from work for the following week so that he would have an opportunity
to find a counselor, and to “work on stress reduction, relaxation techniques . . . and
nutrition.” Id. At the end of the one-week period, the doctor wrote that she would
“re-evaluate his return to work.” Id.
Another follow-up with Dr. Clayton occurred on March 19, 2019. According
to Dr. Clayton’s notes, Claimant reported that he was “feeling well” and his
symptoms, such as lack of sleep and poor appetite, were “improving.” Id. at 177a-
178a. The two discussed several issues in Claimant’s personal life, including
Claimant’s upcoming trip to Florida; they also discussed “lifestyle changes” that
Claimant was making to improve his financial situation. Id. There was a brief
discussion of Claimant’s work situation as well. Dr. Clayton noted that Claimant
“does not feel that he is able to go back to work at this time” and that Claimant
reported being unable to do “light duty.” Id.
After his April 3 appointment, Dr. Clayton noted that there were “[n]o new
complaints at [that] time,” and that Claimant’s condition was still “improving.” Id.
at 180a. She recorded that Claimant had begun seeing a counselor the day before.
7
The doctor’s only mention of Claimant’s work situation was her note that Claimant’s
counselor had expressed to him her opinion that “going back to work would be a
good idea.” Id. at 181a.
After his final appointment with Dr. Clayton on May 3, 2019, she only
mentioned Claimant’s work while noting that it “continues to be very stressful. He
feels he is handling it to the best of his ability.” Id. at 183a. Claimant still had not
returned to work.
Claimant’s counseling sessions
While Claimant continued to see Dr. Clayton, he followed her
recommendation to seek counseling. On April 2, 2019, he met with Katherine
Weber, a licensed professional counselor at Yorlan Psychological Associates.
During their intake session, they discussed Claimant’s workplace difficulties. Id. at
161a. To cope with those difficulties, Ms. Weber urged Claimant to “focus on self-
care, simplifying his life as much as he can control, good sleep hygiene and
nutrition,” and “limiting the time he spends each day thinking about the situation
and shifting focus to other purposes.” Id. As noted above, Ms. Weber also suggested
that it would be a good idea for Claimant to return to work. Id. at 181a. Claimant
did not return to work.
Claimant attended three subsequent sessions with Ms. Weber in April and
May, 2019, during which they discussed a range of stressful events in Claimant’s
private life. These included Claimant’s financial problems, his girlfriend’s health
issues, his girlfriend’s sister’s health issues, and an ongoing dispute with his father
over who would care for Claimant’s grandparents. R.R. at 161a, 163a, 166a, and
168a. When they did resume discussion of Claimant’s job, Ms. Weber still did not
impose restrictions on Claimant’s duties or place conditions on his return.
8
Claimant discontinued the counseling sessions after his last appointment on
May 3, 2019. According to Claimant, his employer-sponsored health insurance did
not cover these sessions and he had difficulty paying the fees out-of-pocket. Id. at
129a. Claimant did not seek a payment plan or a lower-cost alternative. Id. at 129a-
130a. Nor did he seek further medical attention between May 6, 2019 and his
eventual return to work on July 5, 2019. Id. at 130a.
The report from Employer’s medical expert
In August, Employer submitted the written report of its medical expert, Dr.
Larry Rotenberg, a psychiatrist at Reading Hospital and psychiatry professor at
Temple University School of Medicine. Id. at 195a-208a. On August 14, 2019, Dr.
Rotenberg conducted a two-hour, in-person evaluation of Claimant. At the
evaluation, Claimant underwent a series of psychological tests. Based on the
evaluation, the tests, and Claimant’s medical records, Dr. Rotenberg concluded that
Claimant had never suffered from PTSD. Dr. Rotenberg opined that, “[a]t the most,”
Claimant “might have had an Adjustment Disorder with anxious mood,” which
lasted for “weeks.” Id. at 206a. He characterized the antidepressant dosage
prescribed by Dr. Clayton as “sub-therapeutic” and “essentially a placebo.” Id. at
205a. According to Dr. Rotenberg, Claimant’s persistent anxiety issues have
“absolutely nothing to do with either the January the 9th or the March 11th incident
of exposure to [c]arbon [m]onoxide.”5 Id. He suggested that any elevated levels of
carbon monoxide observed in Claimant’s body may have been the result of the pack
of cigarettes that Claimant had smoked daily until July 2019. Id.
5
As indicated earlier, there is no evidence in the record that Claimant was actually exposed
to, or treated for, carbon monoxide exposure as a result of the March 11 incident.
9
On January 3, 2020, the WCJ issued a decision in Claimant’s favor. The WCJ
wrote that Claimant’s testimony was “credible and persuasive,” a conclusion that he
based on his own “observations and Claimant’s presentation and demeanor [at] his
live testimony.” Decision of the WCJ, Findings of Fact (FOF) ¶7. In his
interpretation, the records from York Hospital, Dr. Clayton and Ms. Weber
constituted evidence “that Claimant sustained disabling work-related injury of
carbon monoxide poisoning and PTSD.” Id. The WCJ found the opinion of Dr.
Rotenberg, Employer’s medical expert, to be “not credible or reliable to the extent
it conflicts with that of Claimant” without further explanation. FOF ¶ 9.
The WCJ’s Order granted Claimant temporary total disability benefits of
$524.50 per week, plus reimbursement for reasonable and necessary medical costs.
WCJ Order ¶¶ 2-3. The WCJ awarded benefits starting on January 9, 2019, despite
the fact that Claimant continued to work for two months after that date, and despite
the fact that both parties had already agreed that the period of any alleged disability
did not begin until March 12, 2019.6 Board Opinion (Op.) at 1. The WCJ suspended
Claimant’s benefits as of July 5, 2019, the date of Claimant’s return to work. The
WCJ denied Claimant’s request for counsel fees, but granted the request for a 50%
penalty. WCJ Order ¶¶ 5-6.
Employer filed a timely appeal to the Board. R.R. at 42a-46a. Employer
argued that, contrary to the WCJ’s opinion, Claimant had not produced any medical
proof regarding the cause of Claimant’s alleged injuries; that Claimant had failed to
produce evidence that substantiates claims of work-related disability or wage loss;
6
The WCJ’s opinion also noted without explanation that “Claimant submitted . . .
documentation indicating ongoing child support obligations.” FOF ¶ 13. Claimant’s child support
lien affidavit showed no such obligations. R.R. at 185a-86a. Indeed, Claimant was childless as of
2019. Id. at 196a.
10
that the benefits should have been terminated, rather than suspended; that the WCJ’s
ruling was not a reasoned decision; and that the 50% penalty, or any penalty at all,
was unjustifiable.7
On March 30, 2021, the Board affirmed the WCJ by a 4-2 vote. In its opinion,
the majority explained that the WCJ is free to accept or reject, in whole or in part,
the testimony of any witness, including medical witnesses (citing Greenwich
Collieries v. Workmen’s Comp. Appeal Bd. (Buck), 664 A.2d 703 (Pa.
Cmwlth.1995)). Board Op. at 5. The majority characterized Employer’s arguments
as a call to reassess the credibility and weight given to the evidence, which is the
WCJ’s prerogative, not the Board’s (citing Vols v. Workmen’s Comp. Appeal Bd.
(Alperin, Inc.), 637 A.2d 711 (Pa. Cmwlth. 1994)). Id. Because the WCJ accepted
Claimant’s testimony and evidence, and rejected Employer’s medical expert’s
report, “Claimant was able to meet his burden.” Id. The majority did agree that the
WCJ erred by granting benefits dating to January 2019, and modified the award to
reflect the parties’ agreement that the period began in March 2019. Id.Board Chairman Frioni and Commissioner Zurick dissented without
submitting separate opinions. Board Op. at 9-10. Commissioner Zurick did briefly
note, regarding the award of penalties, that he did not “see, even given a notice
violation of the Act, how the WCJ gets from 10% to a 50% Penalty under the [WC
Act].” Board Op. at 10.
Employer timely appealed the Board’s decision to this Court.
7
Employer also requested supersedeas pending appeal, which was granted on February
20, 2020. Employer Br. at 7.
11
II. Issues
On appeal,8 Employer argues that Claimant failed to meet his burden of proof
because there is no medical evidence in the record to establish that a work-related
injury caused a disability. In the alternative, Employer maintains that even if benefits
were properly granted, the WCJ should have terminated rather than suspended
payments, since there was no evidence of ongoing disability. Employer also argues
that the WCJ’s decision is not “reasoned,” in violation of Section 422(a) of the Act,
77 P.S. § 834, due to the WCJ’s failure to provide any basis for rejecting the opinions
of Dr. Rotenberg, Employer’s medical expert.9 Employer also asks this Court to
reverse the penalty award, since it lacked justification and was an error as a matter
of law. Employer’s Br. at 26.
III. Analysis
It is well established that the term “disabled,” as used in the Pennsylvania WC
Act, is to be regarded as synonymous with “loss of earning power” attributable to a
work-related injury. Weissman v. Workers’ Comp. Appeal Bd. (Podiatry Care Ctr.,
P.C.), 878 A.2d 953, 958 (Pa. Cmwlth. 2005). Therefore, a causal connection
between the work-related injury suffered and a loss of wages must be demonstrated
8
The scope of appellate review in a workers' compensation proceeding is limited to
determining whether constitutional rights were violated, whether an error of law was committed,
or whether the findings of fact are supported by substantial evidence. Gumro v. Workmen’s Comp.
Appeal Bd. (Emerald Mines Corp.), 626 A.2d 94, 97 (Pa. 1993). Substantial evidence has been
defined as “such relevant evidence that a reasonable mind might accept as adequate to support a
conclusion.” Bethenergy Mines, Inc., v. Workmen's Comp. Appeal Bd. (Consol. Coal Co.), 612
A.2d 434, 436 (1992). Hence, appellate review must focus on whether there is rational support in
the record, when reviewed as a whole, for the agency action. Republic Steel Corp. v. Workmen’s
Comp. Appeal Bd. (Shinsky), 421 A.2d 1060, 1063 (Pa. 1980).
9
Since we hold that the first issue is dispositive in this case, there is no need to reach the
questions regarding the suspension of benefits or the reasoned decision standard. They are
therefore omitted from the discussion below.
12
in order to receive an award of wage loss benefits. CPV Mfg. Inc. v. Workers’ Comp.
Appeal Bd. (McGovern), 805 A.2d 653, 658 (Pa. Cmwlth. 2002). A loss of wages
caused by an employee’s voluntary decision not to work is not compensable.
Brimmer v. Workers’ Comp. Appeal Bd. (N. Am. Refractories), 764 A.2d 104, 107
(Pa. Cmwlth. 2000).
Upon review of the record, we find that it does not support, by substantial
evidence, the WCJ’s decision that Claimant suffered a disabling work injury.
The medical records offered by the Claimant consist, in their entirety, of the
emergency room visit of January 9, 2019, counselor Katherine Weber’s notes from
her four counseling sessions with Claimant, and family physician Dr. Rita Clayton’s
notes from her five visits with Claimant. Claimant argues, the records demonstrate
that “the WCJ’s determinations are unquestionably supported by substantial
evidence of record.” Claimant’s Br. at 11. We disagree.
While these records indicate that Claimant was exposed to carbon monoxide
on January 9, 2019, there is not a single medical record or opinion that concluded
that this exposure resulted in a disabling work injury. Rather, these records show
that Claimant’s four-month absence from work was voluntary, as opposed to
medically recommended. Claimant was released from the ER within hours, with no
symptoms, and without work restrictions. Claimant’s family physician never
imposed any restrictions, and her notes indicate that Claimant’s decision not to
return to work was his own choice. She and Claimant’s counselor, moreover, both
encouraged Claimant to return to work. Therefore, Claimant has failed to meet his
burden of proof that he was disabled for the period he alleges. Since the Act does
not compensate the loss of wages resulting from an employee’s choice not to work,
benefits cannot be properly awarded in this case.
13
It is true that Claimant’s anxiety symptoms lasted much longer than those of
his carbon monoxide exposure. However, there was still no conclusion by a medical
professional that those symptoms constituted a disability. Dr. Clayton’s March 12,
2019 note excusing Claimant from work for one week did not address the question
of whether he could work. In fact, the doctor’s written remark from one week later—
that Claimant “does not feel that he is able to return to work at this time”—indicates
that his continued absence from work was his own decision. R.R. at 178a. By
Claimant’s own admission, the doctor had in fact advised him to return to work. N.T.
at 43. Additionally, on April 2, 2019, counselor Katherine Weber specifically told
Claimant that going back to work would have been advisable. R.R. at 181a. It strains
credulity to suggest that both a physician and a licensed professional counselor
would have advised Claimant to return to his job if they had truly believed that he
was disabled.
Even if we were to interpret “disability” broadly enough to include Claimant’s
anxiety issues, his claim that they were caused by a work injury is not adequately
supported by the evidence. In a WC claim, the causal connection between a work-
related injury and the alleged disability must be either obvious or supported by
unequivocal medical testimony. Fotta v. Workmen’s Comp. Appeal Bd. (U.S.
Steel/USX Corp. Maple Creek Mine), 626 A.2d 1144, 1146 (Pa. 1993). In this case,
the medical records indicate that Claimant’s anxieties center on the myriad of
personal family and financial issues, unrelated to work, that he discussed extensively
with his physician and his counselor. To single out the January 9 and March 11, 2019
incidents among those factors would therefore require unequivocal medical
testimony. But the medical evidence in the record offers no such thing. Neither Dr.
14
Clayton nor Ms. Weber discusses the varying degrees to which the different factors
caused Claimant’s anxiety. They barely discuss causation at all.
Employer next argues that the assessment of a 50% penalty by the WCJ was
improper since there was no violation of the WC Act justifying this penalty. The WC
Act provides that employers and insurers may be assessed a penalty, calculated as a
percentage of the benefits awarded, for violations of the Act, its rules or regulations,
or its rules of procedure.10 The penalty is paid to the beneficiary. In ordinary cases
the penalty may not exceed 10% of the amount awarded. However, in cases of
unreasonable or excessive delays, it may be increased to 50%. Id.Section 406.1 of the WC Act imposes on employers an obligation to accept or
deny the work-relatedness of an injury within 21 days’ notice of its occurrence.11
Although Section 406.1 contains references to the employee’s disability, this Court
has held that the acceptance/denial obligation applies regardless of whether the
injury is disabling or non-disabling. See Waldameer Park, Inc. v. Workers’ Comp.
Appeal Bd. (Morrison), 819 A.2d 164, 169-70 (Pa. Cmwlth. 2003) (holding that an
employer had an obligation to accept or deny workplace injury within 21 days
notwithstanding the fact that claimant suffered no loss of wages). However, in order
for penalties to be awarded under Section 406.1, the claim petition must be granted.
Where the petition is denied, there is no way to calculate penalties. Brutico v.
Workers’ Comp. Appeal Bd. (US Airways, Inc.), 866 A.2d 1152, 1156 (Pa. Cmwlth.
2004).
In this case, Claimant suffered an injury on January 9, 2019. Employer had an
obligation to acknowledge the injury through either an acceptance or denial of
10
Added by the Act of February 8 1972, P.L. 25, as amended, 77 P.S. § 991(d)(i).
11
Added by Section 3 of the Act of February 8, 1972, P.L. 25.
15
compensability. Claimant is correct that Employer’s failure to do so constitutes a
violation of Section 406.1. However, since the claim petition was improperly
granted, no penalties can be properly awarded in this case.12
IV. Conclusion
Claimant’s exposure to carbon monoxide at his workplace on January 9, 2019,
was clearly unfortunate. However, the record lacks any evidence that a medical
professional ever imposed health-related restrictions on his work duties. Claimant,
who is not a medical professional, cannot unilaterally determine that he was totally
disabled for four months. We therefore reverse the Board’s March 31, 2021 order
affirming the WCJ’s decision to grant his claim and penalty petitions.
__________________________________
ELLEN CEISLER, Judge
Judge Fizzano Cannon did not participate in the decision of this case.
12
The award of penalties in this case also raises a potential reasoned decision issue. While
the WCJ noted that Employer violated the Act, he failed to explain why the specific amount
awarded was appropriate. As noted above, the Act provides for penalties of up to 10% in ordinary
cases, and up to 50% in excessive or unreasonable ones. To award the absolute maximum penalty
warrants an explanation of what made Employer’s violation so egregious. The failure to explain
that determination justifies Commissioner Zurick’s bafflement at the level of penalties in his
dissent.
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dunbar Armored and :
Arch Insurance Company/ :
TPA Gallagher Bassett Services, :
Petitioners :
:
v. : No. 463 C.D. 2021
:
Zackery Fisher (Workers’ :
Compensation Appeal Board), :
Respondent :
ORDER
AND NOW, this 4th day of February, 2022, the March 30, 2021 Order of the
Workers’ Compensation Appeal Board in the above matter is REVERSED.
__________________________________
ELLEN CEISLER, Judge