PA Liquor Control Board v. A. Berardi (WACB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsylvania Liquor Control Board, :
Petitioner :
:
v. : No. 649 C.D. 2023
: Submitted: July 5, 2024
Amato Berardi (Workers’ :
Compensation Appeal Board), :
Respondent :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE STACY WALLACE, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WALLACE FILED: September 20, 2024
The Pennsylvania Liquor Control Board (Employer) petitions for review of
the May 22, 2023 order of the Workers’ Compensation (WC) Appeal Board (Board)
to the extent it affirmed the Workers’ Compensation Judge’s (WCJ) September 27,
2022 order granting Amato Berardi’s (Claimant) Petition to Reinstate Compensation
Benefits (Reinstatement Petition), Petition to Review Compensation Benefits
(Review Petition), and two Petitions for Penalties (Penalty Petitions). Upon review,
we affirm.
I. Background
Claimant worked for Employer as a clerk at a Pennsylvania Fine Wine and
Good Spirits store, where he primarily stocked shelves and assisted customers.
Reproduced Record (R.R.) at 7a. On June 29, 2019, Claimant tripped over a cement
barrier and fell on his right knee and right elbow when returning to work from lunch.
Id. at 8a, 11a. Claimant continued to work from June 29, 2019, to July 11, 2019,
with worsening right knee pain. Id. at 8a. Employer placed Claimant on
modified-duty employment from July 11, 2019, to July 20, 2019. Id. Even though
no doctor advised him against working, Claimant stopped working after July 20,
2019. Id. Claimant underwent surgery on his right knee on October 10, 2019. Id.
Claimant then returned to work in a modified-duty capacity, pursuant to a release
signed by his surgeon (Dr. Katzman), on November 8, 2019. Id. at 11a.
On August 3, 2020, Employer sent Claimant a letter indicating he was entitled
to a period of six months of modified-duty employment, which would expire on
August 25, 2020.1 Id. at 194a. The letter explained Claimant would “not be allowed
to work beyond August 25, 2020[,] . . . unless [his] physician release[d him] to
perform full duties by this date.” Id. (emphasis omitted). Claimant’s physician did
not release him to full duty, so Employer terminated Claimant’s employment on
August 25, 2020. Id. at 12a.
Claimant first attempted to obtain WC benefits by filing a Claim Petition on
August 1, 2019, alleging he injured his right knee in the course and scope of his
employment with Employer. After conducting several hearings, a WCJ issued an
order on March 9, 2021, granting Claimant’s Claim Petition and finding that
Claimant suffered a right knee injury on June 29, 2019, during the course and scope
of his employment with Employer. R.R. at 5a-18a. The WCJ awarded Claimant
total disability benefits from October 10, 2019, through November 8, 2019, and
partial disability benefits thereafter. Id. at 382a. Employer appealed the WCJ’s
order granting Claimant’s Claim Petition to the Board and requested supersedeas.
Id. at 389a. The Board denied Employer’s supersedeas request by order dated April
1
Periods of time were excluded from the six-month limitation due to Claimant’s receipt of paid
administrative leave during the COVID-19 pandemic. R.R. at 194a.
2
28, 2021. Id. The Board ultimately affirmed the WCJ’s order granting Claimant’s
Claim Petition. See id. at 382a. Employer appealed the Board’s decision to this
Court, which affirmed. See Pa. Liquor Control Bd. v. Berardi (Pa. Cmwlth., No.
147 C.D. 2023, filed April 10, 2024).2
Meanwhile, on March 12, 2021, before Employer filed its appeal of the WCJ’s
decision to grant Claimant’s Claim Petition, Claimant filed the Reinstatement
Petition, alleging his work injury was again causing him decreased earning power as
of August 25, 2020. See R.R. at 37a-39a. Claimant also filed the Review Petition
on the same day, alleging the description of his work-related injury should be
“amended to include [a] left knee injury resulting from overcompensation and
altered gait following surgery on his right knee.” Id. at 49a-51a. Additionally,
Claimant filed a Petition for Penalties (Penalty Petition #1) alleging Employer
violated the Pennsylvania Workers’ Compensation Act (Act)3 by refusing to
continue Claimant’s modified-duty position after August 25, 2020, and failing to
reinstate his wage loss benefits. Id. at 43a-45a.
The WCJ consolidated Claimant’s petitions and held a hearing, at which
Employer moved for each petition’s dismissal. See R.R. at 365a. Employer argued
its appeal of the Claim Petition was still pending and, therefore, judicial estoppel
should bar the Reinstatement and Review Petitions. See id. Employer also argued
the Review Petition was improper because the nature of the injury was “judicially
determined.” Id. Finally, Employer argued the WCJ should dismiss Penalty Petition
#1 since “Employer was not under any obligation to make payments because there
was a Claim Petition pending and Employer has requested supersedeas.” Id. On
2
Employer did not seek permissive review of this Court’s decision which affirmed the Board’s
order affirming the WCJ’s order granting the Claim Petition.
3
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
3
May 10, 2021, the WCJ issued an interlocutory order denying Employer’s motion to
dismiss. Id. at 62a-64a.
On May 21, 2021, Claimant filed a second Penalty Petition (Penalty Petition
#2), which alleged Employer violated the Act by refusing to pay for compensable
medical treatment. Id. at 65a-67a. On August 3, 2021, Claimant filed two additional
Petitions for Penalties (Penalty Petition #3 and Penalty Petition #4). Id. at 70a-72a,
75a-77a. Penalty Petition #3 alleged Employer violated the Act by failing to pay
Claimant’s benefits and attorney’s fees pursuant to the WCJ’s March 9, 2021 order.
Id. at 70a. Penalty Petition #4 alleged Employer violated the Act by failing to pay
for additional compensable medical treatments. Id. at 75a.
The WCJ, who consolidated Claimant’s various petitions, received evidence
at multiple hearings. See R.R. at 362a-65a. Claimant testified at the hearings that
Employer discharged him after his physician would not release him to full-duty
employment in August of 2020. Id. at 366a. Claimant also explained the issues he
began having with his left knee in September of 2020, after having no previous issues
with his left knee or suffering any injuries or trauma. Id. at 367a. Finally, Claimant
explained his ongoing pain symptoms in both knees and the medical treatment he
obtained for his left knee, including x-rays, magnetic resonance imaging (MRI), and
cortisone injections. Id.
Claimant also presented the testimony of Howard Sharf, M.D. (Dr. Sharf), a
board-certified orthopedic surgeon who works at the same medical practice as Dr.
Katzman. R.R. at 367a. Dr. Sharf reviewed Dr. Katzman’s records and took over
Claimant’s care in August of 2021. Id. Dr. Sharf first saw Claimant as a patient on
August 23, 2021, at which time Dr. Sharf opined Claimant was not fully recovered
from his right knee injury. Id. Dr. Sharf administered an injection in Claimant’s
4
right knee on September 17, 2021, which was designed to delay Claimant’s need for
right knee replacement surgery. Id. at 368a. Dr. Sharf did not release Claimant to
return to work without restrictions. Id.
Dr. Sharf reviewed Claimant’s medical records from September 2020, when
Claimant first complained of left knee pain. R.R. at 368a. Dr. Sharf discussed the
imaging of Claimant’s left knee, beginning with an x-ray in October 2020, showing
minimal degenerative changes and ending with an x-ray in March of 2021, showing
severe degenerative changes. Id. Dr. Sharf opined that a change of this magnitude
over such a short period is not typical and cannot be attributed to the natural aging
process. Id. Dr. Sharf further opined that the most likely reason for the change is
Claimant’s altered gait as a result of his painful right knee. Id. at 369a. Thus, Dr.
Sharf attributed Claimant’s left knee degeneration to Claimant’s right knee injury.
Id.
Employer presented the testimony of Barry Allen Ruht, M.D. (Dr. Ruht), a
board-certified orthopedic surgeon who examined Claimant on September 23, 2021.
R.R. at 370a. Dr. Ruht observed Claimant’s gait and characterized his limp as
minimal. Id. at 371a. Dr. Ruht’s testing and observations led him to conclude
Claimant was putting equal weight on both legs during all weight-bearing activities.
Id. After reviewing Claimant’s medical records, Dr. Ruht opined Claimant’s left
knee problems were secondary to a chronic, preexisting, arthritic left knee. Id. at
372a. As a result, Dr. Ruht opined any medical treatment Claimant received for his
left knee was not related to Claimant’s work injury to his right knee. Id.
Employer also presented evidence showing it paid an invoice for Claimant’s
medical treatments related to the work injury on September 2, 2021. R.R. at 373a.
In addition, Employer presented evidence showing it paid Claimant’s indemnity
5
benefits and attorney’s fees on June 3, 2021, for October 10, 2019, through
November 7, 2019, and on August 26, 2021, for November 8, 2019, through August
6, 2020. Id.
WCJ’s Decision
After receiving the testimony and evidence, the WCJ found Claimant’s
testimony credible and accepted it as fact. R.R. at 373a. The WCJ also accepted Dr.
Sharf’s expert opinions, which supported Claimant’s testimony, as credible. Id. The
WCJ rejected Dr. Ruht’s opinions as not credible to the extent they conflicted with
Dr. Sharf’s opinions. Id. Specifically, the WCJ found Dr. Ruht’s attribution of
Claimant’s left knee symptoms to a traumatic event, which Dr. Ruht could not
identify, to be speculative and not credible. Id. at 374a.
The WCJ concluded Claimant established his work injury caused his
subsequent left knee degeneration. R.R. at 375a. The WCJ rejected Employer’s
argument that Claimant waived this issue by not raising it during the Claim Petition
litigation because Claimant’s left knee symptoms began after the record was closed
in the Claim Petition litigation. Id. As a result, the WCJ granted the Review Petition.
Id. at 377a. The WCJ also concluded Claimant established Employer should have
reinstated his wage loss benefits when Employer terminated his modified-duty
employment on August 25, 2020. Id. at 375a. As a result, the WCJ granted the
Reinstatement Petition. Id. at 377a.
The WCJ also concluded Claimant met his burden of proof for Penalty
Petition #1 regarding Employer’s failure to reinstate wage loss benefits after
removing Claimant’s modified-duty position and awarded a penalty of 10%
“increased to [30%] for Employer’s unreasonable delay for wage loss benefits due
to Claimant from August 25, 2020[,] to the date this Decision is circulated.” R.R. at
6
375a. The WCJ also concluded Claimant met his burden of proof regarding Penalty
Petition #3, alleging late payment of benefits and attorney’s fees pursuant to the
March 9, 2021 order granting the Claim Petition, and awarded a penalty in the
amount of $934.20. Id. Finally, the WCJ concluded Claimant met his burden of
proof regarding Penalty Petition #4, alleging Employer failed to timely pay for
compensable medical services, and awarded a penalty in the amount of $337.28. Id.
The WCJ concluded Claimant failed to meet his burden of proof regarding
Penalty Petition #2, because Claimant failed to present evidence of unpaid
compensable medical bills (other than those related to Penalty Petition #4).
Therefore, the WCJ denied and dismissed Penalty Petition #2.4
Board’s Decision
Employer appealed the WCJ’s decision to the Board to the extent it granted
the Reinstatement Petition, Review Petition, and Penalty Petitions #1, #3, and #4.
Employer’s first argument before the Board was that the WCJ erred in not dismissing
Claimant’s various petitions as premature due to Employer’s ongoing appeal of the
underlying Claim Petition. The Board noted the Reinstatement Petition, Review
Petition, and Penalty Petitions related to “a time period of disability that [was]
subsequent to the period ordered in the Claim Petition, specifically ongoing benefits
as of August 25, 2020,” and “an additional description of injury not included in the
Claim Petition and various Penalties for actions [Employer] undertook following the
issuance of the Claim Petition.” R.R. at 382a. As a result, the Board rejected
Employer’s arguments, concluding Claimant’s petitions were not premature, did not
deal with issues identical to those in the Claim Petition, and did not advocate
inconsistent positions. Id. at 383a.
4
Claimant did not appeal the WCJ’s dismissal of Penalty Petition #2 to the Board or this Court.
7
Employer’s second argument before the Board was that the WCJ erred in
granting the Reinstatement Petition. R.R. at 384a. After briefly summarizing the
testimony and evidence before the WCJ, the Board noted the WCJ accepted
Claimant’s and Dr. Sharf’s testimony as credible, while rejecting Dr. Ruht’s
testimony as not credible. Id. at 386a. The Board then concluded Claimant’s
evidence, which the WCJ accepted as credible, satisfied his burden of establishing
entitlement to a reinstatement of benefits. Id. at 387a.
Employer’s third argument before the Board was that the WCJ erred in
granting the Review Petition and expanding the description of Claimant’s work
injury to include his left knee. R.R. at 387a. Based upon Claimant’s evidence, which
the WCJ found credible, the Board determined Claimant satisfied his burden of
establishing his left knee injury was caused by the work injury, entitling him to an
expanded description of his work injury. Id.
Employer’s fourth argument before the Board was that the Reinstatement
Petition and Review Petition should be barred by res judicata or collateral estoppel5
5
As this Court has explained:
The judicial doctrine of res judicata bars actions on a claim, or any part of
a claim, which was the subject of a prior action, or could have been raised in that
action. For the bar of res judicata to apply, both actions must have an identity of
issues, an identity of causes of action, identity of persons and parties to the action,
and identity of the quality or capacity of the parties suing or being sued. . . .
Collateral estoppel bars re-litigation of an issue decided in a prior action.
Collateral estoppel may be applied only if both cases involve the same issue, the
prior action was litigated to a final judgment on the merits, the party to be estopped
was a party or was in privity with a party to the prior action and had a full and fair
opportunity to litigate the issue in the prior action, and resolution of the issue in the
prior proceeding was essential to the judgment.
Pocono Mountain Sch. Dist. v. Kojeszewski (Workers’ Comp. Appeal Bd.), 280 A.3d 12, 17-18
(Pa. Cmwlth. 2022) (citations and internal quotation marks omitted).
8
because they should have been litigated in the Claim Petition. Id. at 388a. The
Board noted while Claimant’s left knee symptoms began before the WCJ issued an
order granting the Claim Petition, the record in the Claim Petition litigation closed
before Claimant’s left knee symptoms began. Id. As a result, the Board concluded
Claimant did not have an opportunity to litigate the issues in his Reinstatement
Petition and Review Petition during the Claim Petition litigation. Id. at 388a-89a.
Thus, the Board rejected Employer’s res judicata and collateral estoppel arguments.
Employer’s fifth argument before the Board was that the WCJ erred in
granting Penalty Petitions #1, #3, and #4. With respect to Penalty Petition #3, which
alleged delayed payment of benefits and attorney’s fees, the Board noted the record
established the WCJ granted the Claim Petition on March 9, 2021, and the Board
denied Employer’s supersedeas request on April 28, 2021. R.R. at 389a. As a result,
Employer became liable to pay the benefits ordered in the WCJ’s March 9, 2021
order on April 28, 2021. Id. at 389a-90a. Nevertheless, Employer’s payment history
showed it did not pay these benefits until June 3, 2021, and August 26, 2021. Id. at
390a. Noting Employer did not give any specific reason for its delay, the Board
affirmed the WCJ’s order granting Penalty Petition #3 and awarding a 20% penalty
for the violation. Id.With respect to Penalty Petition #4, the Board noted Employer did not pay
Claimant’s medical bill until September 2, 2021, while, again, being obligated to
pay it as of April 28, 2021. Id. The Board rejected Employer’s claim it did not
receive the bill on the proper forms and affirmed the WCJ’s penalty award.
With respect to Penalty Petition #1, which alleged Employer failed to reinstate
Claimant’s benefits as of August 25, 2020, the Board noted the WCJ did not
judicially determine the work injury and grant the Claim Petition until March 9,
9
2021. R.R. at 390a. As a result, the Board determined Employer had no obligation
to reinstate Claimant’s benefits before that time. Instead, the Board concluded
Employer’s obligation to reinstate Claimant’s benefits only arose when the WCJ
granted the Reinstatement Petition. Id. Therefore, the Board reversed the WCJ’s
award of a penalty related to Employer’s failure to reinstate benefits as of August
25, 2020. Id.Employer’s sixth and final argument before the Board was that the WCJ erred
in determining Employer’s contest of the Reinstatement Petition was unreasonable.
Noting Employer did not produce any evidence showing Claimant was capable of
working in a full-duty capacity as of August 25, 2020, the Board agreed with the
WCJ’s conclusion that Employer’s contest of the Reinstatement Petition was
unreasonable.
II. Issues
On appeal to this Court, Employer raised the following six issues, each of
which it previously raised before the Board: (1) whether the Board erred in affirming
the WCJ’s denial of Employer’s motion to dismiss the Reinstatement Petition,
Review Petition, and Penalty Petition #1; (2) whether the Board erred in affirming
the WCJ’s decision to grant the Reinstatement Petition; (3) whether the Board erred
in affirming the WCJ’s decision to grant the Review Petition; (4) whether the
Reinstatement and Review Petitions were barred by res judicata or collateral
estoppel;6 (5) whether the Board erred in granting Penalty Petitions #3 and #4;7 and
(6) whether the Board erred in finding Employer did not present a reasonable contest.
6
Although Employer included arguments related to this issue in its brief within the sections
related to its second and third issues on appeal, we, like the Board, address it as a separate issue
for clarity and ease of analysis.
7
Claimant did not challenge the Board’s decision reversing the WCJ’s award on Penalty Petition
#1.
10
III. Analysis
Our standard of review is limited to determining whether substantial evidence
supports the necessary findings of fact, whether an error of law was committed, or
whether agency practices and procedures or one of the petitioner’s constitutional
rights were violated. See 2 Pa.C.S. § 704. Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
City of Phila. v. Healey (Workers’ Comp. Appeal Bd.), 297 A.3d 872, 883 (Pa.
Cmwlth. 2023) (citations omitted). In considering whether an error of law was
committed, our standard of review is de novo, and our scope of review is plenary.
Edwards v. Workers’ Comp. Appeal Bd. (Epicure Home Care, Inc.), 134 A.3d 1156,
1161 n.4 (Pa. Cmwlth. 2016). In other words, we need not defer to the conclusions
of law below, and we review the entire record before us with a fresh pair of eyes.
A. Employer’s Motion to Dismiss
Employer’s first issue on appeal is whether the Board erred in affirming the
WCJ’s denial of Employer’s motion to dismiss the Reinstatement Petition, Review
Petition, and Penalty Petition #1.8 Specifically, Employer argues Claimant filed
these petitions prematurely, causing Employer to advocate inconsistent positions,
because Employer’s appeal of the WCJ’s order granting Claimant’s Claim Petition
was still pending.
This Court has consistently held that “matters pending on appeal cannot be
revisited by the filing of new, similar petitions.” Gieniec v. Workers’ Comp. Appeal
Bd. (Palmerton Hosp.), 130 A.3d 154, 158 (Pa. Cmwlth. 2015) (citations omitted).
The intent of this rule is to prevent “unnecessary and counterproductive relitigation
8
Because Claimant did not challenge the Board’s reversal of the WCJ’s decision on Penalty
Petition #1, that decision is final, and Penalty Petition #1 is no longer reviewable. As a result, we
limit our analysis to the Reinstatement and Review Petitions.
11
of identical issues.” Bechtel Power Corp. v. Workmen’s Comp. Appeal Bd. (Miller),
452 A.2d 286, 288 (Pa. Cmwlth. 1982) (citation omitted). We have interpreted the
rule to “prevent premature petitions [and the] relitigation of identical issues, and to
preclude a party from advocating inconsistent positions.” Gieniec, 130 A.3d at 158.
A petition is premature if it “depend[s] on the outcome of the appeal” of a
previous petition. Id. In Gieniec, the claimant appealed the WCJ’s original decision
on her claim petition, asserting the WCJ should have awarded her indemnity benefits
instead of awarding medical benefits only. Id. at 155. While her appeal was
pending, the claimant filed a reinstatement petition seeking to reinstate indemnity
benefits. Id. at 156. Thus, the claimant’s “reinstatement petition was premised on a
successful appeal of the indemnity claim.” Id. at 160. Under these circumstances,
this Court determined the claimant’s reinstatement petition depended on the outcome
of her appeal and was, therefore, premature. Id. at 158-59.
A party advocates inconsistent positions if his positions are “mutually
exclusive.” Gieniec, 130 A.3d at 159. In Bechtel Power, we determined an
employer advocated inconsistent positions by filing a termination petition, thereby
arguing the claimant’s disability existed but had ceased, while also appealing the
initial finding of disability, thereby arguing no disability existed. Bechtel Power,
452 A.2d at 287-88. Similarly, in Gieniec, the claimant filed a reinstatement
petition, seeking to reinstate the benefits the WCJ set forth in her original order.
Gieniec, 130 A.3d at 159. At the same time, the claimant’s appeal of the WCJ’s
original order “challenged the adequacy of the award because it did not include any
ongoing disability benefits or wage loss.” Id. Under these circumstances, this Court
determined the claimant’s positions were inconsistent. Id.12
Employer argues Claimant’s petitions were premature because each petition
assumed that Employer’s appeal would be denied, which was necessary to establish
Claimant’s injury occurred in the course and scope of his employment with
Employer. See Employer’s Br. at 30. In determining whether a new petition is
premature, however, we consider whether the new petition is premised upon an
appeal changing the result of the decision being appealed. See Gieniec, 130 A.3d at
158-60. Here, the WCJ’s original order determined Claimant’s right knee injury
occurred in the course and scope of Claimant’s employment. The Reinstatement and
Penalty Petitions accepted the WCJ’s determinations. As a result, Claimant’s
petitions did not rely on a different outcome on appeal to become viable, and were
not, therefore, premature.
Employer also argues it was forced to take inconsistent positions when
Claimant filed the Reinstatement and Review Petitions. At the time Claimant filed
its Reinstatement and Review Petitions, Employer was appealing whether
Claimant’s right knee injury was work related, and it would have to acknowledge
the compensability of that injury to properly litigate the Reinstatement and Review
Petitions. See Employer’s Br. at 28-29. Our analysis, which is designed to
determine whether a subsequent petition should be dismissed, however, is focused
on whether the party filing the second petition is advocating inconsistent positions
in filing the second petition. Here, Claimant asserts in the Reinstatement and
Review Petitions that he should, again, receive benefits for a compensable work
injury. This is consistent with his position in the Claim Petition, wherein he also
asserted he was entitled to benefits for a compensable work injury. Accordingly, we
affirm the Board’s decision which affirmed the WCJ’s order denying Employer’s
motion to dismiss the Reinstatement and Review Petitions.
13
B. Reinstatement Petition
Employer’s second issue on appeal is whether the Board erred in affirming
the WCJ’s decision to grant the Reinstatement Petition. Employer argues substantial
evidence9 did not support the WCJ’s decision because Claimant did not submit any
medical evidence establishing his disability status as of August 25, 2020. See
Employer’s Br. at 33.
Section 413(a) of the Act permits a WCJ to reinstate an award of benefits
“upon proof that the disability of an injured employe has increased, decreased,
recurred, or has temporarily or finally ceased.” 77 P.S. § 772. “[I]t is a claimant’s
burden to prove that she is once again disabled because her work injury has increased
or recurred.” Lawhorne v. Lutron Elec. Co., Inc. (Workers’ Comp. Appeal Bd.), 284
A.3d 239, 243 (Pa. Cmwlth. 2022) (citing Bufford v. Workers’ Comp. Appeal Bd.
(N. Am. Telecom), 2 A.3d 548, 558 (Pa. 2010)). “The claimant need not re-prove
that the disability resulted from a work-related injury during his or her original
employment.” Bufford, 2 A.3d at 558. “Where a claimant returns to work under a
suspension, with restriction, that is, does not return to his or her time-of-injury job,
but rather to a modified position, is subsequently laid off and petitions for
reinstatement of benefits, the claimant is also entitled to the presumption that his or
her disability, i.e., loss of earning power, is causally related to the continuing work
injury.” McKay v. Workmen’s Comp. Appeal Bd. (Osmolinski), 688 A.2d 259, 262
(Pa. Cmwlth. 1997).
In addition, it is within the WCJ’s sole discretion to resolve conflicting
testimony and make credibility determinations. Hawbaker v. Workers’ Comp.
Appeal Bd. (Kriner’s Quality Roofing Servs. & Uninsured Emp. Guar. Fund), 159
9
To the extent Employer argued in its Brief the Board committed an error of law, we address
Employer’s arguments with its fourth issue on appeal.
14
A.3d 61, 69 (Pa. Cmwlth. 2017) (citations omitted). “Neither the Board nor this
Court may reweigh the evidence or the WCJ’s credibility determinations.” Id.(citation omitted). If substantial evidence supports the WCJ’s factual findings, we
may not disturb those findings. Bartholetti v. Workers’ Comp. Appeal Bd. (Sch.
Dist. of Phila.), 927 A.2d 743, 747 (Pa. Cmwlth. 2007) (citation omitted). “It is
irrelevant whether the record contains evidence to support findings other than those
made by the WCJ; the critical inquiry is whether there is evidence to support the
findings actually made.” Furnari v. Workers’ Comp. Appeal Bd. (Temple Inland),
90 A.3d 53, 60 (Pa. Cmwlth. 2014) (citations omitted).
Here, the Board properly noted the WCJ found Claimant credible when he
testified to working 20 hours per week in a modified-duty capacity, due to physician-
imposed work restrictions, in August 2020. Dr. Sharf, whom the WCJ also found
credible, testified that Claimant had not recovered from his right knee work injury
and was not released to full-duty employment in August 2020. Employer introduced
a letter indicating Claimant would not be permitted to work after August 25, 2020,
if he was not released to full-duty employment. We, like the Board, will not disturb
the WCJ’s credibility determinations and agree these facts support the WCJ’s
conclusions that Claimant met his burden of proving his earning capacity was again
affected by his work injury.
In addition, because Claimant was on modified-duty employment at the time
Employer terminated his position, Claimant was entitled to a presumption that his
loss of earning power was caused by his work injury. See McKay, 688 A.2d at 262.
Accordingly, substantial evidence exists to support the WCJ’s decision which
granted the Reinstatement Petition.
15
C. Review Petition
Employer’s third issue on appeal is whether the Board erred in affirming the
WCJ’s decision which granted the Review Petition and expanded the description of
Claimant’s work injury to include a left knee injury. Employer first argues Section
413(a) of the Act only permits a WCJ to review and modify “a notice of
compensation payable and an original or supplemental agreement.” See Employer’s
Br. at 36 (quoting 77 P.S. § 771). Because the WCJ determined Claimant’s injury
was work related, Employer asserts the Board lacked legal authority to modify the
WCJ’s determination to include the left knee injury.
Employer, however, ignores Section 413(a) of the Act’s express language
permitting a WCJ to “at any time, modify . . . an award of the [Department of Labor
and Industry (Department)] or its workers’ compensation judge, upon petition filed
by either party with the [D]epartment upon proof that the disability of an injured
employe has increased.” 77 P.S. § 772. This language confirms Section 413(a) of
the Act authorizes a WCJ to amend the description of a work injury, even when the
employer has not agreed to the work injury, i.e. the work injury is judicially
determined. To hold otherwise would permit employers to avoid liability for
subsequent injuries resulting from the work injury simply by denying the original
injury was work related. This is an absurd result that runs against the humanitarian
purposes of the Act. Accordingly, Employer’s argument fails.
Employer’s next argument is that substantial evidence10 did not support the
WCJ’s decision to grant the Review Petition because Dr. Sharf’s opinion was
incompetent due to his lack of knowledge of Claimant’s condition before his initial
examination and his failure to review medical records from before August 2019. See
10
To the extent Employer argued in its Brief the Board committed an error of law, we address
Employer’s arguments with its fourth issue on appeal.
16
Employer’s Br. at 37-38. A medical expert’s testimony may lack competency to
establish a causal relationship between a work injury and a claimant’s disability
when the expert lacks “any personal knowledge of the [c]laimant’s physical
condition prior to his examination” and fails to “review any of [the c]laimant’s
extensive relevant medical records.” See Sw. Airlines v. Workers’ Comp. Appeal
Bd. (King), 985 A.2d 280, 287 (Pa. Cmwlth. 2009).
Although Dr. Sharf did not treat Claimant as a patient until August 2021, Dr.
Sharf testified he reviewed Claimant’s medical records from his practice as well as
additional medical records from outside his practice. See R.R. at 136a-37a. Dr.
Sharf also specifically noted reviewing x-ray reports from October 2020 and March
2021 on Claimant’s left knee. See id. at 137a-39a. Dr. Sharf testified the October
2020 x-ray showed minimal degenerative changes, while the March 2021 x-ray
showed severe degenerative changes. Id. at 139a. Dr. Sharf then opined that such a
fast progression is not typical and could not be attributable to the natural aging
process. Id. at 140a-41a. Since Claimant stated he did not experience any injuries
or trauma to his left knee during this time period, Dr. Sharf attributed the injury to
an altered gait, which Dr. Sharf identified in previous medical records, resulting
from Claimant’s right knee pain. Id. at 141a-42a. Under these circumstances, Dr.
Sharf’s testimony was based upon his review of Claimant’s medical records,
rendering his opinions competent.
Employer also argues the WCJ erred in concluding Claimant’s testimony was
credible due to the WCJ “[h]aving observed Claimant’s testimony at hearing, based
upon his demeanor.” See Employer’s Br. at 40 (quoting R.R. at 373a). Specifically,
Employer properly notes Claimant testified once by deposition in the matter, and
once by telephone, for the limited purpose of discussing his fee agreement. Id. Thus,
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Employer asserts we should not defer to the WCJ’s credibility determinations,
because those determinations were not based upon the WCJ’s observations of
Claimant. Id.We decline, however, to negate the WCJ’s credibility determinations on this
basis. The WCJ who heard and decided Claimant’s Claim Petition was the same
WCJ who heard and decided the petitions at issue in this appeal. The WCJ’s
hearings on these two separate proceedings overlapped, as Claimant testified before
the WCJ by phone on March 8, 2022, regarding an issue on remand from the Board
in the Claim Petition litigation, as well as to close the record with respect to these
proceedings. See R.R. at 346a-50a. In the underlying Claim Petition litigation,
Claimant testified before the WCJ by video. See id. at 11a. Thus, while the WCJ
erred in stating she observed Claimant’s testimony regarding these petitions, the
WCJ did observe the Claimant testify in other related proceedings before her. Id. In
addition, the WCJ did not determine Claimant’s testimony was credible based solely
upon observing Claimant. Instead, the WCJ compared Claimant’s testimony with
other known facts in this matter and determined his testimony was credible due, in
part, to its consistency. See id. at 373a. Given the WCJ was hearing both matters at
the same time, the WCJ’s mistake is both understandable and harmless.
D. Res Judicata / Collateral Estoppel
Employer’s fourth issue on appeal is whether the Board erred in affirming the
WCJ’s determination the Reinstatement and Review Petitions were not barred by res
judicata or collateral estoppel. Specifically, Employer argues Claimant was aware
of his left knee injury and was required to pursue a claim for the injury during the
Claim Petition litigation. See Employer’s Br. at 31-33, 36-37. Employer also argues
the Board erred as a matter of law in affirming the WCJ’s decision to grant the
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Reinstatement Petition because Claimant was “required to raise and address th[e]
issue during the pendency of th[e] original “Claim Petition.” See Employer’s Br.
at 32.
The Board addressed Employer’s argument as follows:
We note the reinstatement date and date of the onset of left knee
symptoms occurred in August and September of 2020, which was
before the actual issuance of the Claim Petition on March 9, 2021.
However, the WCJ concluded that this was still subsequent to the
record closing on the Claim Petition, and thus, was too late for Claimant
to have had the opportunity to litigate those issues. Consequently,
Claimant waited to file the Reinstatement and Review Petitions until
after the Claim Petition was granted. Although res judicata applies to
matters that were not only actually litigated, but matters which should
have been litigated, it is clear that there was never a full opportunity for
Claimant to litigate these issues during the prior Claim Petition
litigation. See Krouse v. [Workers’ Comp. Appeal Bd.] (Barrier
Enters.), 837 A.2d 671 (Pa. Cmwlth. 2003)(holding that res judicata
applies to those issues actually litigated as well as those issues that
should have been litigated). Thus, we conclude Claimant’s petitions
were not barred by res judicata/collateral estoppel, and we must reject
[Employer’s] argument to the contrary.
R.R. at 388a-89a. We discern no errors in the Board’s determination.
E. Penalty Petitions #3 and #4
Employer’s fifth issue on appeal is whether the Board erred in affirming the
WCJ’s decision to grant Penalty Petitions #3 and #4. Employer argues both that its
late payments did not constitute unreasonable delay and that Claimant did not submit
any evidence to support its request for payment of medical bills. See Employer’s
Br. at 42-45.
A claimant who files a penalty petition bears the burden of proving the
employer violated the Act or its rules or regulations. Shuster v. Workers’ Comp.
Appeal Bd. (Pa. Hum. Rels. Comm’n), 745 A.2d 1282, 1288 (Pa. Cmwlth. 2000). If
19
the claimant meets this burden of proof, the burden shifts to the employer to prove
it did not violate the Act. Id.With respect to timeliness of payments, the Board noted Employer became
liable to pay Claimant benefits as of April 28, 2021, the date the Board denied
Employer’s request for supersedeas in its appeal of the WCJ’s decision granting the
Claim Petition. R.R. at 389a-90. Nevertheless, the evidence presented by Employer
showed it paid Claimant’s wage loss benefits on June 3, 2021, and August 26, 2021,
and that it paid Claimant’s medical bill on September 2, 2021. Id. at 390a. The
Board noted Employer gave “no specific reason for these payments being late.” Id.Under these circumstances, we discern no error in the Board’s affirmance of the
WCJ’s determination that Employer unreasonably delayed issuing payments.
With respect to Claimant’s evidence of medical bills, the Board noted that
“[w]hile [Employer] argues the bill was not supplied on the proper forms, Claimant
introduced into the record the actual bill . . . and procedure note.” R.R. at 390a. As
a result, the Board rejected Employer’s argument Claimant did not submit any
evidence to support its request for payment of medical bills. We, again, discern no
error in the Board’s affirmance of the WCJ.
F. Unreasonable Contest
Employer’s sixth issue on appeal is whether the Board erred in determining
Employer did not present a reasonable contest in this matter. While Employer
presents arguments related to the Review Petition and each Penalty Petition, we note
the WCJ concluded Employer’s contest was reasonable with respect to the Review
Petition and Penalty Petition #2. R.R. at 376a. Claimant did not appeal this
determination. In addition, the Board reversed the WCJ’s order granting Penalty
Petition #1 and awarding penalties. Id. at 393a. Claimant did not appeal this
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determination either. Therefore, the only penalty awards remaining are those related
to the Reinstatement Petition and Penalty Petitions #3 and #4.
Section 440 of the Act provides:
In any contested case where the insurer has contested liability in whole
or in part, including contested cases involving petitions to terminate,
reinstate, increase, reduce or otherwise modify compensation awards,
agreements or other payment arrangements or to set aside final receipts,
the employe or his dependent, as the case may be, in whose favor the
matter at issue has been finally determined in whole or in part shall be
awarded, in addition to the award for compensation, a reasonable sum
for costs incurred for attorney’s fee, witnesses, necessary medical
examination, and the value of unreimbursed lost time to attend the
proceedings: Provided, That cost for attorney[’s] fees may be excluded
when a reasonable basis for the contest has been established by the
employer or the insurer.
77 P.S. § 996(a), added by the Act of February 8, 1972, P.L. 25.
Employer’s only argument that its contest to the Reinstatement Petition was
reasonable is that “Employer presented a genuine question of law regarding the legal
viability of Claimant’s Reinstatement Petition.” See Employer’s Br. at 46.
Employer’s only argument with respect to Penalty Petitions #3 and #4 was that its
contest “was also reasonable.” Id.
As discussed above, Employer’s legal arguments relating to Claimant’s
alleged premature filing of the Reinstatement Petition lacked merit. In addition, as
the Board noted:
The only medical evidence [Employer] entered into the record was Dr.
Ruht’s testimony concerning Claimant’s Review Petition and the
expansion of his injury to include a left knee aspect. However, it
produced no evidence that Claimant, in fact, could have worked his full
duty job when they terminated his employment on August 25, 2020.
Because Claimant had the presumption that his wage loss after that
point was work-related, as the result of working modified duty, it was
[Employer’s] burden to prove the wage loss was from another non-
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work-related cause. Because [Employer] failed to produce any
evidence that, if accepted, would have met its burden, its contest was
unreasonable.
R.R. at 391a-92a. Under these circumstances, we discern no error in the Board’s
determination.
With respect to Penalty Petitions #3 and #4, Employer’s argument is not
adequately developed to permit our review. See Com. v. Brown, 196 A.3d 130, 185
n.21 (Pa. 2018) (appellate courts are “neither obligated, nor even particularly
equipped, to develop an argument for a party. To do so places the Court in
conflicting roles of advocate and neutral arbiter.”). Accordingly, we reject
Employer’s arguments the Board erred in affirming the WCJ’s determination
Employer’s contest to Penalty Petitions #3 and #4 was unreasonable.
IV. Conclusion
For the reasons set forth above, we affirm the Board’s May 22, 2023 Order.
______________________________
STACY WALLACE, Judge
Judge Fizzano Cannon and Judge Dumas did not participate in the decision of this
case.
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsylvania Liquor Control Board, :
Petitioner :
:
v. : No. 649 C.D. 2023
:
Amato Berardi (Workers’ :
Compensation Appeal Board), :
Respondent :
ORDER
AND NOW, this 20th day of September 2024, the Workers’ Compensation
Appeal Board’s May 22, 2023 Order is hereby AFFIRMED.
______________________________
STACY WALLACE, Judge