H. McElroy v. WCAB (Ryder Dedicated Logistics, et al.) (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Harry McElroy, : Petitioner : : v. : : Workers Compensation Appeal Board : (Ryder Dedicated Logistics and : Lauren Brook Transport, Inc.), : Respondents : BEFORE: No. 2034 C.D. 2006 Submitted: September 14, 2007 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE RENà E COHN JUBELIRER, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE FLAHERTY FILED: January 31, 2008 Harry McElroy (Claimant) petitions for review of an Order of the Workers Compensation Appeal Board (Board). We affirm in part, reverse in part, and remand for the reasons stated below. Claimant sustained work-related injuries on April 22, 1999 while employed by Ryder Dedicated Logistics (Ryder).1 Ryder accepted injuries to his left ankle and knee in a Notice of Compensation Payable (NCP). Claimant was out of work and on light duty at various times, yielding intermittent periods of total and partial disability payments. On November 3, 1999, Claimant was returned to 1 Ryder is referred to in the record as Ryder Dedicated Logistics and Ryder Integrated Logistics interchangeably. total disability pursuant to a Supplemental Agreement.2 The Bureau documents submitted into the record indicate Claimant s average weekly wage (AWW) for Ryder was $780.75. Despite the fact that the last controlling document was the Supplemental Agreement, Claimant was working for Ryder in May of 2000 when he resigned to pursue employment at Lauren Brook Transport, Inc. (Lauren Brook). Claimant was involved in a motor vehicle accident while employed by Lauren Brook on October 25, 2000. It issued a Notice of Temporary Compensation Payable (NTCP) that described Claimant s injuries as a lower back and neck sprain and strain. The NTCP was converted into a Notice of Compensation Payable (NCP) by operation of law. He eventually returned to work but was subsequently laid off. Claimant filed a Claim Petition against Lauren Brook on August 13, 2001 in regard to his October 25, 2000 motor vehicle accident seeking benefits for injuries to his back, neck, shoulder, and leg.3 On that same date, he filed a Penalty Petition alleging that Lauren Brook violated the Pennsylvania Workers Compensation Act4 (Act) by unilaterally ceasing benefits and/or failing to reinstate benefits upon his termination of employment. Claimant filed a Review Petition on 2 In reviewing the bureau documents submitted in this case, we acknowledge that there is a Final Receipt executed March 2, 2000 stopping Claimant s benefits as of November 2, 1999 based on a return to work without an earnings loss. Yet, the Supplemental Agreement resumes benefits one day later and was received by the Bureau in January of 2000. It would seem that some clarification would be required. Nonetheless, the WCJ, the Board, and the parties have all treated the Supplemental Agreement as the controlling legal document. We see no reason to question that finding at this juncture. 3 Claimant withdrew this Claim Petition at a hearing held September 28, 2001. 4 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4; 2501-2626. 2 June 24, 2002 alleging that he also sustained a knee injury in the October 25, 2000 motor vehicle accident. On March 16, 2001, Claimant filed a Reinstatement Petition against Ryder alleging a worsening of his work-related injury with that employer as of October 25, 2000.5 On September 25, 2001, Ryder filed a Modification/Suspension Petition seeking relief as of May 22, 2000. Lauren Brook filed a Modification/Suspension Petition on October 2, 2001 alleging that as of January 2, 2001, Claimant returned to work at his pre-injury job with no loss of earnings. On June 12, 2002, the WCJ issued an Interlocutory Order pursuant to Section 410 of the Act6 (410 Order) directing both employers to each pay fifty percent of Claimant s workers compensation benefits retroactive to May 22, 2000 in the amount of $520.00 per week. 5 Claimant amended this Reinstatement Petition to include a request for a penalty due to Ryder s unilateral cessation of benefits. He withdrew his original Reinstatement Petition against Ryder at the April 26, 2002 hearing. Claimant further amended his Penalty Petition against Ryder to include a Review Petition to amend the injury description in the NCP to reflect injuries testified to by its medical witness. Ultimately, however, he withdrew this Review Petition at the August 2, 2002 hearing. We point out, however, that this was at the urging of the WCJ who believed at that time that such Petition should be pursued at a later date in separate litigation. 6 Section 410 of the Act, 77 P.S. § 751, provides in pertinent part: Whenever any claim for compensation is presented and the only issue involved is the liability as between the defendant or the carrier or two or more defendants or carriers, the referee of the department to whom the claim in such case is presented shall forthwith order payments to be immediately made by the defendants or the carriers in said case. After the department's referee or the board on appeal, render a final decision, the payments made by the defendant or carrier not liable in the case shall be awarded or assessed against the defendant or carrier liable in the case, as costs in the proceedings, in favor of the defendant or carrier not liable in the case. 3 With respect to these Petitions, Claimant testified that he sustained a knee injur(ies) while working for Ryder as a dock worker that necessitated two surgeries. He stated that following his second surgery in February of 2000, he was cleared for light duty and returned to Ryder on May 22, 2000. He asserted he was to work forty hours per week at $12.50 per hour. He explained that upon his return to work, his indemnity benefits ceased. According to Claimant, he voluntarily resigned from Ryder within a week s time to pursue a job at Lauren Brook where he hoped to earn more money. He signed a resignation letter dated May 24, 2000 noting an effective date of May 27, 2000. Claimant asserted that prior to his work injury, he would generally receive ten hours a week of overtime and that during his brief return to Ryder, no overtime was made available. He believed that he would have been physically capable of performing his light duty job with Ryder had he not resigned until he was involved in his motor vehicle accident on October 25, 2000. Claimant stated that he was involved in a motor vehicle accident while working for Lauren Brook as a truck driver. He claimed that he banged his left knee on the dashboard and that he sustained a different injury than the one he incurred while working for Ryder. Claimant noted that the pain he experienced prior to October 25, 2000 was on the outside of his knee while the pain he felt following the motor vehicle accident was on the top of his knee. Claimant acknowledged he returned to his pre-injury job in January of 2001 but was told not to lift anything real heavy. He agreed that he was subsequently laid off from his employment at Lauren Brook. He did not receive any indemnity benefits from this employer following his layoff. 4 Claimant testified that due to the current condition of his knee, he is unable to work at all. He explained that he never stopped treating for his knee after he left his employment at Ryder, that he continued to get cortisone shots, and that his knee was always sore. Claimant averred that he was scheduled for another knee surgery on August 26, 2002. He acknowledged that he has received benefits from Ryder following the issuance of the WCJ s 410 Order, but stated he has not received payment from Lauren Brook. Claimant presented the testimony of H. William Schaaff, M.D., board certified orthopedic surgeon, who took over the responsibility for Claimant s care in February of 2002 from his partner, Fredric E. Liss, M.D. He ordered an MRI that took place on March 20, 2002 and revealed a cyst behind the knee as well as thinning of the cartilage on the outer aspect of the knee. Dr. Schaaf further indicated there was a tear present under the lateral meniscus. Dr. Schaaf did perform an arthroscopy on Claimant s left knee on August 26, 2002. He asserted that when he operated on Claimant s knee, he found a new medial meniscal tear. He explained that Claimant had not been previously diagnosed with a medial tear and that the new tear was caused by the October 2000 motor vehicle accident. Dr. Schaaf has not released Claimant to return to work since the August 2002 surgery. He opined that Claimant s two work injuries with Ryder, his new injury of October 2000 and the surgeries they necessitated all substantially contribute to his current disability. Ryder presented the testimony of Dr. Liss, board certified orthopedic surgeon, who began treating Claimant on July 9, 1999. He noted that at that time, Claimant had an MRI that suggested he had a lateral meniscus tear. Dr. Liss performed arthroscopic surgery on September 24, 1999 on Claimant s left knee. A 5 new MRI was taken a few months after Claimant s initial surgery that showed a new medial meniscus tear on the opposite side of the knee from where his original surgery took place.7 Dr. Liss performed a second surgery on February 26, 2000 whereupon he removed another portion of Claimant s lateral meniscus but, contrary to the findings on the second MRI, noted only abnormal findings on the medial side of the knee. He later clarified that there was not a large meniscal tear, but rather a tear of the chondral cartilage. On May 2, 2000, Dr. Liss released Claimant to sedentary, light duty work. According to Dr. Liss, he treated Claimant through October 16, 2001 and that at no point did he lift this restriction. Dr. Liss acknowledged Claimant was involved in a motor vehicle accident in October of 2000 and that he struck his left knee on the dashboard. He noted pain in the posterior capsule of claimant s knee. He opined that Claimant sustained a new injury to his knee as well as an aggravation of pre-existing degenerative arthritis as a result of his motor vehicle accident. Ryder further presented the testimony of John Stelma, its logistics manager, who agreed that Claimant was released to sedentary duty as of May 2, 2000 and that he made a job available to him within those restrictions. Mr. Stelma modified Claimant s pre-injury job so he could sit at a desk where he recorded numbers, clocked drivers, and performed some other office duties. According to Mr. Stelma, Claimant worked for only four days until he resigned explaining that he was pursuing employment elsewhere. Mr. Stelma asserted that had Claimant not resigned, work would have continued to be available to him. The witness 7 It is during Dr. Liss recitation of his findings regarding this new medial meniscus tear that Claimant s counsel put Ryder on notice that he wished to amend the NCP issued by that employer to reflect further injuries. 6 stated that Claimant s light duty position paid $12.50 per hour, the same rate he earned prior to his 1999 work injury, and that overtime was available based on customer needs or the existence of any after hour problems at the facility.8 The WCJ precluded any testimony sought to be presented by Lauren Brook. He based his determination on this employer s failure to comply with the 410 Order. By a decision circulated January 28, 2003, the WCJ determined that Claimant sustained a new injury to his left knee on October 25, 2000. Consequently, he granted Claimant s Review Petition and amended his injury description contained in the converted NCP issued by Lauren Brook to include a lateral meniscal tear(s), a medial meniscal tear, and an aggravation of pre-existing degenerative arthritis in the left knee. He denied Lauren Brook s Modification/Suspension Petition because Claimant was working with restrictions as a result of his October 25, 2000 work injury at the time of his layoff. He ordered Lauren Brook to pay Claimant total disability beginning October 2000 minus a credit for wages received. The WCJ concluded that Ryder was entitled to a suspension of Claimant s benefits as of May 22, 2000 as it established Claimant s loss of earnings on and after that date was not the result of his 1999 work injury. Instead of being caused by the 1999 injury, Claimant s loss of earnings was based upon the fact that he voluntarily resigned from this employer in order to obtain employment at Lauren Brook. The WCJ further found both employers violated the Act by unilaterally ceasing payment of benefits to Claimant. He noted that Claimant 8 Claimant was a key holder to the plant and would be called in when problems happened at night. 7 experienced no actual economic harm as a result of Ryder s unilateral cessation of benefits. Consequently, he awarded a nominal penalty of one dollar payable by employer Ryder. He awarded fifty percent penalties, however, for Lauren Brook s violation of the Act on all compensation due and owing from the time this employer unilaterally ceased paying benefits. The WCJ further instructed Lauren Brook to reimburse Ryder any amounts the latter employer paid Claimant as a result of the 410 Order. He added both employers presented a reasonable contest. Both Claimant and Lauren Brook appealed the WCJ s January 28, 2003 Decision. The matter was assigned two docket numbers that resulted in two separate opinions being issued. On March 29, 2004, the Board issued an Opinion at A03-0398 addressing Lauren Brook s argument that the WCJ s Decision was not supported by substantial, competent evidence and that the WCJ erred in prohibiting Lauren Brook from submitting evidence in regards to the pending Petitions in light of its failure to comply with his 410 Order. The Board concluded that Lauren Brook s evidence was improperly excluded. Thus, it vacated the WCJ s Decision granting Claimant s Review Petition and Penalty Petition and denying Defendant s Modification/Suspension Petition and remanded the matter to permit this employer to submit evidence pertinent to the pending Petitions and for the WCJ to make findings of fact and conclusions of law based on that evidence. The Board issued a separate Opinion at A03-0399 on that same date whereupon it addressed Claimant s arguments that the WCJ erred in concluding (1) that he returned to work at Ryder earning his pre-injury wages prior to his voluntary resignation, (2) that this employer was no longer obligated to pay indemnity benefits, (3) that his disability following his August 2002 surgery was 8 not the responsibility of this employer, (4) that a $1.00 penalty was appropriate for Ryder s violation of the Act, and (5) that Ryder presented a reasonable contest. The Board determined that Claimant s work injury was not the cause of his earnings loss following his departure from Ryder, but rather his voluntary resignation was. It further rejected Claimant s claim that he nonetheless had a loss of earnings because he did not receive any overtime pay upon his return to Ryder. It noted that the credible evidence of record established that prior to his 1999 work injury, Claimant was given overtime on an as needed basis and that overtime would have similarly been made available when he returned to work at modified duty. The Board reasoned that Claimant s assertion that he was not given overtime was undermined by the fact that he returned to work for only four days before resigning and that had he continued his employment at Ryder, he would have enjoyed the availability of overtime at his traditional frequency. The Board also found that substantial, competent evidence existed in the record to support the WCJ s finding Lauren Brook, not Ryder, was liable for Claimant s August 2002 surgery. It concluded that the award of a $1.00 penalty for Ryder s violation of the Act was within the WCJ s discretion and that this employer reasonably contested Claimant s Petitions. Therefore, the Board affirmed the WCJ s January 28, 2003 Order.9 Claimant appealed A03-0399 to this Court. On May 11, 2004, Ryder filed a Petition for Rehearing with the Board concerning both its A03-0398 Opinion and its A03-0399 Opinion. This action was taken despite the fact that the 9 It should be noted that neither Opinion addressed the issue of reimbursement to Ryder from Lauren Brook. 9 Board did not designate Ryder as a party in the A03-0398 Opinion. In the interim, on remand, Lauren Brook and Claimant entered into a Compromise and Release Agreement (C&R Agreement) that was approved by WCJ Terry Knox. Ultimately, the Board granted Ryder's Petition for Rehearing regarding both its Opinion at A03-0398 and its Opinion at A03-0399. We relinquished jurisdiction of Claimant's appeal of A03-0399 pending the Board s determination on rehearing. The Board issued a new Opinion on September 27, 2006.10 It explained that it improvidently issued two Opinions on this matter on March 29, 2004 but noted that the substance of those Opinions did not conflict. It recognized, however, that it failed to address the reimbursement issue resulting from the WCJ s 410 Order of June 12, 2002. The Board reaffirmed its holding that the WCJ did not err in finding Claimant s left knee injury was a new injury and thus the responsibility of Lauren Brook. It further reasserted its determination that Ryder was entitled to a suspension of benefits after Claimant voluntarily resigned from his position with this employer and that the penalty award was proper. In light of the C&R Agreement between Claimant and Lauren Brook, the Board reasoned that the issues dealt with in its Opinion at A03-0398 were moot and, therefore, remand was no longer necessary. It went on to state that the WCJ did not err in directing 10 In this Opinion, the Board indicated Claimant sustained injuries to his back, neck, and left knee as a result of his 1999 work injury. Claimant asserts that this is in error as he only sustained a knee injury on that date. Aside from an ankle injury listed in the NCP issued by Ryder, the evidence of record supports Claimant s assertion. Nonetheless, this is merely harmless error on the Board s behalf and has no impact in our adjudication of this matter. 10 Lauren Brook to reimburse Ryder for any benefits paid by the latter due to the existence of the 410 Order. This appeal followed. 11 Claimant argues on appeal that (1) the Board erred in declaring that the issues addressed in the Opinion at A03-0398 are essentially moot in its September 27, 2006 Order,12 (2) the Board, in deeming the issues in A03-0398 moot, violated the law of the case in that Lauren Brook still has not had the opportunity to present evidence that his knee problems were actually a recurrence of the knee injury sustained at Ryder, (3) the Board erred in holding that the WCJ properly determined he sustained a new injury to his left knee while working for Lauren Brook on October 25, 2000,13 (4) the WCJ erred in granting Ryder s Modification/Suspension Petition and suspending his benefits as of May 22, 2002, (5) he erred in granting his Penalty Petition against Ryder but in awarding a penalty of only $1.00, (6) the WCJ further erred in not imposing a fifty percent penalty for Ryder s separate violation of the Act for not making appropriate 11 Our review is limited to determining whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence and whether constitutional rights were violated. DeGraw v. Workers Compensation Appeal Board (Redner's Warehouse Mkts., Inc.), 926 A.2d 997 (Pa. Cmwlth. 2007). 12 Claimant suggests that the Board improperly attempted to unvacate its Order at that docket number and that the vacated status of the non-included knee injury was a substantive basis for the [C&R Agreement] between Lauren Brook and Claimant. 13 Claimant reasons that the converted NCP issued by Lauren Brook acknowledged injuries to his back and neck. He adds that the litigation between Claimant and Lauren Brook was resolved by the C&R Agreement that covered only the accepted injuries and that it was never finally determined that this employer was responsible for his left knee injury as the WCJ s Decision on that issue was vacated by the Board at A03-0398. 11 payments consistent with the WCJ s 410 Order, and (7) he erred in concluding Ryder presented a reasonable contest.14 Our review of this matter is complicated by circular arguments advanced by Claimant. For instance, Claimant contends that there should be no determination as to whether he may have sustained an aggravation or a new injury to his left knee as a result of his October 25, 2000 motor vehicle accident. He implores that liability for his knee injury is the sole responsibility of Ryder and that this employer failed to plead or give other notice that it believed liability for his knee condition was the responsibility of Lauren Brook. Yet, it was Claimant who filed the Review Petition against Lauren Brook on June 24, 2002 alleging that he also sustained a knee injury in the October 25, 2000 motor vehicle accident.15 Of further interest is Claimant s argument that Ryder s Bureau documents were submitted ex parte and that, therefore, his statement of wages cannot form the basis to calculate his AWW with that employer. Nonetheless, the figure identified as his AWW in those documents, $780.75, serves as the basis for all of Claimant s 14 Claimant asserts in his brief that the WCJ erred in sua sponte consolidating all of the Petitions filed in this case over his objection. Nonetheless, he failed to raise this issue in his Petition for Review. Thus, we consider this argument waived. See Chene v. Workmen's Compensation Appeal Board (Giant Eagle), 632 A.2d 1058 (Pa. Cmwlth. 1993). 15 Claimant asserts that Ryder s Suspension Petition that seeks relief as of May 2000, the time when he returned to work at light duty for this employer, is inconsistent with Ryder s theory that he sustained a new injury to his left knee in October of 2000. We disagree. Initially, we see nothing inconsistent with Ryder asserting that it should be entitled to relief as of May 2000 based on one theory but even if it loses on that issue that it is entitled to relief based on another theory at some later point in time. Moreover, Claimant s Review Petition and his own evidence give rise to the issue of whether he sustained a recurrence or a new injury in the motor vehicle accident incurred while working at Lauren Brook. 12 monetary calculations he advances in his Petition for Review. Moreover, he does not actually direct us to what his AWW should be.16 Part I- Rehearing/ Left Knee Injury Section 426 of the Act, 77 P.S. §871, provides, in pertinent part: The board, upon petition of any party and upon cause shown, may grant a rehearing of any petition upon which the board has made an award or disallowance of compensation or other order or ruling, or upon which the board has sustained or reversed any action of a referee; but such rehearing shall not be granted more than eighteen months after the board has made such award, disallowance, or other order or ruling, or has sustained or reversed any action of the referee. The Board has broad powers to grant a rehearing and may do so when justice requires. Cudo v. Hallstead Foundry, Inc., 517 Pa. 553, 539 A.2d 792 (1988). Its decision to grant a rehearing will be reversed only upon an abuse of discretion. Id. at 795. See also Department of Corrections. v. Workers Compensation Appeal Board (McClellan), 794 A.2d 977 (Pa. Cmwlth. 2002); Anderson v. Workmen s Compensation Appeal Board (Myers), 414 A.2d 774 (Pa. Cmwlth. 1980). We believe that the Board did not abuse its discretion in granting a rehearing based upon Ryder s request. Claimant, Ryder, and Lauren Brook were 16 This Court is disappointed to see Claimant s counsel s insistence that the WCJ essentially worked in tandem with Ryder during the litigation. This conspiracy theory is unfounded and ultimately serves to detract from the viable arguments advanced on Claimant s behalf. 13 all parties to one proceeding before the WCJ and their litigation ended upon the issuance of the WCJ s January 28, 2003 Decision. Unfortunately, the appeals of Claimant and Lauren Brook were disposed of in separate Opinions by the Board. In so doing so, the Board simultaneously affirmed and vacated and remanded the WCJ s 2003 Order. In so doing, it was unclear whether the WCJ s directive that Ryder was entitled to reimbursement from Lauren Brook for money paid based on the issuance of the 410 Order was still controlling. As Ryder requested rehearing within eighteen months17 of the Board s Orders, the Board was within its authority to grant the same and clarify any discrepancies resulting from its prior determinations. Nonetheless, we cannot agree with the Board that the Opinions at A03-0398 and A03-0399 are not in conflict with one another. Specifically, the Board, in A03-0398, vacated the WCJ s 2003 Decision because the WCJ prohibited Lauren Brook from submitting any evidence in support of its Petitions or in opposition to those filed by Claimant. Yet the Board, in A03-0399 affirmed the WCJ s Decision to the extent he found Claimant sustained a new injury to his left knee during his motor vehicle accident of October 2000 and that that injury and resultant surgery was the responsibility of Lauren Brook. Lauren Brook must be afforded the opportunity to submit evidence that Claimant s sustained a 17 Claimant argues that Ryder was not entitled to eighteen months to file its rehearing request because what it actually sought was a reconsideration. We reject this argument as this Court has routinely used the terms rehearing and reconsideration interchangeably when referring to the authority conferred onto the Board by Section 426 of the Act. See U.S. Steel Mining Co., L.L.C. v. Workers Compensation Appeal Board (Goretsky), 874 A.2d 711 (Pa. Cmwlth. 2005); Golovich v. Workmen s Compensation Appeal Board (Koenig, Inc.), 646 A.2d 75 (Pa. Cmwlth. 1994); Jones v. Workmen s Compensation Appeal Board (Midland-Ross Corp.), 612 A.2d 570 (Pa. Cmwlth. 1992). 14 recurrence, not a new injury to his left knee in 2000 based upon the reasoning espoused in the A03-0398 Opinion. Consequently, we remand this matter to the Board with instructions to further remand this matter to the WCJ to allow Lauren Brook to submit evidence and for the WCJ to make findings of fact and conclusions of law on this issue. The necessity of such action is buttressed by Claimant s position that he indeed sustained a recurrence of his left knee injury in October of 2000 as opposed to an aggravation or new injury. We note that in analyzing liability for Claimant s knee condition, the medical experts presented thus far have testified to numerous issues that arose both prior to and following the October 2000 motor vehicle accident. To ensure liability is properly assessed for each condition, Claimant should be afforded the opportunity to pursue his Review Petition against Ryder that he withdrew upon the WCJ s urging. In the interest of fairness, all parties should be permitted to present additional evidence. In a twist of irony, Lauren Brook urges that the Board was correct in its assessment that the issues between it and Claimant are moot and that, therefore, remand is not necessary due to the parties execution of the C&R Agreement. The C&R Agreement and the Order approving it, however, are not part of the certified record before us. Rather, they are simply attached to Lauren Brook s brief. Thus, we cannot consider these documents. Lord & Taylor v. Workers Compensation Appeal Board (Bufford), 833 A.2d 1223 (Pa. Cmwlth. 2003). Nonetheless, the WCJ, as fact finder, may also receive into evidence the C&R Agreement and the Order approving the same on remand and determine its effect on the litigation at the current juncture. Part II- Ryder s Suspension Petition 15 Notwithstanding the fact that the issue of which employer is liable for Claimant s left knee injur(ies) is still unresolved, the issue of whether the WCJ properly granted Ryder s Suspension Petition is sufficiently ripe for our review. We note that Claimant does not necessarily assert a right to total disability following his resignation. Instead, he seeks partial disability of $187.15 as of May 2, 2000 corresponding to 66 2/3% of the difference between his AWW, $780.75, and $500.00, the amount he earned in the one week prior to leaving to go to Lauren Brook. Thereafter, he seeks partial disability benefits following the commencement of his employment with Lauren Brook through the October 25, 2000 injury date based on his earnings at that employer. Section 306(b) of the Act, 77 P.S. §1401(b), provides that a claimant shall be entitled to partial disability constituting 66 2/3% of the difference between his pre-injury wage and his current earning power. In certain situations, when a claimant returns to work for his employer post injury, his earnings may fluctuate thereafter depending on many factors. Oaks v. Workers Compensation Appeal Board (LTV Steel Corp.), 720 A.2d 836 (Pa. Cmwlth. 1998), petition for allowance of appeal denied, 559 Pa. 670, 739 A.2d 168 (1999). This court has stated that in this type of scenario, partial disability payments should be calculated on a weekly or bi-weekly based on wages actually received. Id. at 841. Workers compensation benefits may be suspended where the claimant s disability is due to his voluntary decision to abandon his employment. Inglis House v. WCAB (Reedy), 535 Pa. 135, 634 A.2d 592 (1993). A claimant who resigns from his employment post-work injury in order to take another job with a different employer assumes the risks typically associated with such a 16 decision, including the risk of a lay-off. Welsh v. Workmen s Compensation Appeal Board (L.W. Miller Roofing, Inc), 686 A.2d 59 (Pa. Cmwlth. 1996). At the outset, we agree with Claimant that he is entitled to partial disability of $187.15 from Ryder for the one week he returned to work and earned less than his AWW. This is mandated by Section 306(b) of the Act. It is equally true, however, that Claimant voluntarily resigned his modified duty with Ryder in order to pursue what he believed to be a higher paying job with Lauren Brook and that the WCJ was free to suspend Claimant s benefits as of the date of his resignation. Inglis House. We reject Claimant s argument that he is entitled to partial disability following his resignation based on his earnings at Lauren Brook. The WCJ credited Mr. Stelma s testimony that despite the fact that Claimant did not work overtime in the one week he returned prior to resigning, overtime would have been available to Claimant as it had been prior to his injury based on customer demand and any need for his presence on site after hours.18 Therefore, his hours would 18 The WCJ, as the final arbiter of witness credibility and the weight to be accorded evidence, may accept or reject the testimony of any witness in whole or in part. Greenwich Collieries v. Workmen s Compensation Appeal Board (Buck), 664 A.2d 703 (Pa. Cmwlth. 1995). Notwithstanding the fact that credibility determinations are the sole province of the WCJ, Claimant argues that the he could not possibly have credited Mr. Stelma s testimony without abusing his discretion. For instance, he argues that in an affidavit submitted by Ryder s counsel for supersedeas purposes, Mr. Stelma checked a box next to a statement indicating Claimant returned to the same or similar work on May 22, 2000 at the same or a greater wage than the pre-injury wage. Claimant contends that Mr. Stelma testified that he filled this form out four days after he returned to work in May of 2000. Yet, the dates on this document indicate that it was not completed until September of 2001. Nonetheless, a reading of Mr. Stelma s testimony indicates that he did not necessarily misrepresent the date that he filled out this form. Rather, the finder of fact could easily find his testimony indicated that he was trying to recall what he was thinking when he filled out the form by referencing his understanding of what Claimant was expected to make when he returned to work in 2000. Since there was substantial evidence to support the facts found, we reject Claimant s argument. 17 fluctuate and partial disability would have to have been calculated on a weekly or bi-weekly basis. Oaks. Given the fact that Claimant assumed the risks attendant with taking alternative employment, Welsh, and the fact that his decision to leave Ryder effectively precludes us from determining what his earnings would have been had he stayed, he has waived his right to partial disability following his resignation.19 Part III- Penalties In support of his argument that the WCJ erred in awarding a penalty of $1.00 for Ryder s violation of the Act, Claimant contends that even if his benefits were properly suspended by the WCJ s Order, Ryder was obligated to continue to pay benefits until receiving proper documentation permitting a 19 A claimant is not forever precluded from having benefits reinstated following a voluntary resignation. Horne v. Workers Compensation Appeal Board (Chalmers & Kubeck), 840 A.2d 460 (Pa. Cmwlth. 2004). When a claimant petitions for a reinstatement of benefits after his benefits have been suspended, he must show that through no fault of his own, his earning power is once again affected by his work injury and that the disability that gave that gave rise to his original claim continues. Pieper v. Workmen s Compensation Appeal Board (Ametek-Thermox Instruments Div.), 526 Pa. 25, 584 A.2d 301 (1990). Thus, for example, if the WCJ finds that Claimant s surgery of August 2002 was attributable to his injuries sustained at Ryder, it would appear that he may be entitled to a reinstatement of benefits for the time he was out of work following this surgery. It is also possible that due to injuries sustained by Claimant at Lauren Brook to other parts of his body, some type of apportionment may be appropriate. See, e.g., Trenton China Pottery v. Workers Compensation Appeal Board (Mensch), 773 A.2d 1265 (Pa. Cmwlth. 2001)(holding apportionment has been recognized where an initial workplace injury, the responsibility of an initial insurance carrier, leads to a medical condition causing a partial disability, and then a second workplace injury, the responsibility of a second insurance carrier, results in a total loss of earning power); Franklin Steel Co. v. Workmen s Compensation Appeal Board (Clark), 665 A.2d 1310 (Pa. Cmwlth. 1995)(holding that when there are two separate insurance carriers, and each are liable for a distinct work injury, both will be liable for a pro-rata share of claimant s benefits if the two injuries substantially contribute to his disability). This is of course contingent on the WCJ s treatment of the C&R Agreement. 18 cessation of benefits. Section 435(d)(i) of the Act, 77 P.S. §991(d)(i), provides that an employer may be penalized ten percent of the amount awarded for its failure to comply with the Act and that, in cases of unreasonable or excessive delays, the penalties may be increased up to fifty percent. A claimant who files a penalty petition must first meet his initial burden to prove that a violation of the Act occurred. Shuster v. Workers Compensation Appeal Board (Pennsylvania Human Relations Comm n), 745 A.2d 1282 (Pa. Cmwlth. 2000). Thereafter, the burden shifts to the employer to prove that a violation of the Act had not occurred. Id. at 1288. The decision to impose penalties as well as the amount of penalties is within the discretion of the WCJ. Brutico v. Workers Compensation Appeal Board (US Airways, Inc.), 866 A.2d 1152 (Pa. Cmwlth. 2004). The WCJ s decision regarding penalties will not be disturbed on appeal absent an abuse of discretion. Department of Pub. Welfare v. Workers Compensation Appeal Board (Overton), 783 A.2d 358 (Pa. Cmwlth. 2001). The discretion to award penalties, however, is not unfettered. Croman v. Workers Compensation Appeal Board (Township of Marple), 706 A.2d 408 (Pa. Cmwlth. 1998). In the face of a clear violation of the Act, the WCJ must explain his reasoning for excusing the infraction in the event he does not award penalties. Id. at 410. Generally, once an employer has accepted liability for a work-related injury, it may not properly cease payment of compensation benefits in the absence of either a valid final receipt signed by the claimant or a WCJ's order terminating or suspending the employer's obligation to pay such benefits. Green v. Workmen s Compensation Appeal Board (Ass n for Retarded Citizens), 670 A.2d 1216 (Pa. Cmwlth. 1996). Moreover, an employer can suspend a claimant s benefits by 19 filing a notice of suspension or modification pursuant to section 413 of the Act (Notification) as well as entering into a supplemental agreement with the claimant. The Act does not give the employer the right to self-help. Robb, Leonard & Mulvihill v. Workers' Compensation Appeal Board (Hooper), 746 A.2d 1175 (Pa. Cmwlth. 2000); see also Moody v. Workmen s Compensation Appeal Board (Philadelphia Inquirer), 560 A.2d 925 (Pa. Cmwlth. 1989). In this matter, Ryder unilaterally ceased payment of benefits upon Claimant s return to work at a modified position in May of 2000. It did so without the benefit of a WCJ Order, final receipt, supplemental agreement, or Notification. It continued to withhold indemnity benefits following Claimant s resignation and, ultimately, his layoff from Lauren Brook. This is a violation of the Act and exposes Ryder to the imposition of penalties consistent with Section 435(d)(i) of the Act. Green. Pursuant to Brutico and Croman, however, the WCJ may decline to award penalties even when faced with a clear violation of the Act so long as he gives sufficient explanation for excusing the violation. The WCJ excused the violation and awarded a nominal $1.00 penalty reasoning that Claimant experienced no actual economic harm as a result of Ryder s unilateral cessation of benefits. We observe no abuse of discretion sufficient to reverse the WCJ s determination as Claimant did return to work and, but for his voluntary resignation, would have been able to continue working for Ryder. Moreover, he began working for Lauren Brook following his departure from his former employer and continued to earn a wage. Had Ryder continued to pay total disability following his return to the workforce, it would have, in effect given 20 Claimant a double recovery as he would have been paid wages on top of his indemnity benefits.20 A question arises as to whether Ryder was, at the very least, obligated to resume payment of benefits while Claimant was off of work subsequent to his motor vehicle accident of October 25, 2000 or, more importantly, his layoff from Lauren Brook in light of the absence of any written documentation permitting it to suspend benefits. We answer this question in the negative. Claimant s motor vehicle accident occurred while he was in the course and scope of his employment with Lauren Brook. Lauren Brook accepted liability for injuries to Claimant s low back and neck sustained in this accident via a NTCP later converted into an NCP. Thus, if Claimant believed his earning power was again affected by his work injury sustained at Ryder, it was incumbent upon him, based on the facts before us, to file a reinstatement petition and affirmatively establish that fact.21 Part IV- Reasonable Contest 20 Again, we are cognizant that Claimant may, in theory, have been entitled to some level of partial disability following his resignation. Nonetheless, he waived this right by resigning from Ryder in light of the fact that his hours were expected to fluctuate rendering it impossible to calculate any earnings loss thereafter. We further recognize that we have found Claimant did, indeed, experience an earnings loss of $280.75 during the one week he worked modified duty for Ryder necessitating a partial disability payment of $187.15. Nonetheless, this finding in the context of this litigation as a whole is so inconsequential thus undermining any basis to revisit the penalty issue. 21 We have reviewed the Notice of Appeal filed by Claimant with the Board following the WCJ s January 28, 2003 Decision. He does not allege any error concerning failure to award penalties as a result of Ryder s failure to comply with the 410 Order. Consequently, we deem this issue waived. See Nabisco Brands, Inc. v. Workers Compensation Appeal Board (Tropello), 763 A.2d 555 (Pa. Cmwlth. 2000)(holding that an issue is waived unless it is preserved at every state of the proceeding). We add that our review of the August 2, 2002 hearing transcript reveals substantial compliance with the 410 Order on Ryder s behalf. 21 In support of Claimant s argument that Ryder unreasonably contested this matter, he asserts that there was insufficient evidence of record to support Ryder s prevailing on its Suspension Petition and because it unilaterally suspended benefits without, inter alia, a WCJ Order or Notification. He requests that the WCJ be instructed to make a quantum meruit award of attorney s fees on remand. Section 440(a) of the Act, 77 P.S. §996(a), provides that if an employer contests liability it will be liable for claimant s costs, including counsel fees, if the matter is resolved in whole or in part in the claimant s favor. That section specifies, however, that attorney s fees may be excluded if the employer presents a reasonable contest. The reasonableness of an employer's contest depends upon whether the contest was prompted to resolve a genuinely disputed issue. Bolinsky v. Workers Compensation Appeal Board (Norristown State Hosp.), 814 A.2d 833 (Pa. Cmwlth. 2003). Whether a reasonable basis exists for an employer s contest of liability is a question of law and therefore subject to review. Thissen v. Workmen s Compensation Appeal Board (Hall s Motor Transit), 585 A.2d 612 (Pa. Cmwlth. 1991). There is no per se rule that any time a claimant demonstrates a violation of the Act, the employer's contest must be deemed unreasonable as a matter of law. Bates v. Workers Compensation Appeal Board (Titan Constr. Staffing, LLC), 878 A.2d 160 (Pa. Cmwlth. 2005). Instead, whether the employer has presented an unreasonable contest must be judged on a case-by-case basis. Id. We have already determined that the WCJ did not err in granting Ryder s Suspension Petition. As such, this precludes a finding that Ryder presented an unreasonable contest as to the issues raised in that Petition. Further, 22 while we do not dispute the fact that Ryder violated the Act by unilaterally suspending benefits, Bates makes clear that this fact does not automatically render Ryder s contest to Claimant s Penalty Petition unreasonable. Ryder successfully argued that Claimant would not have been entitled to benefits following his voluntary resignation and that he sustained no real harm based upon its violation of the Act. In so doing, Ryder limited its exposure to penalties to a mere $1.00. Thus, we reject Claimant s argument that Ryder presented an unreasonable contest and that, in turn, Claimant is entitled to an award of counsel fees. ___________________________ JIM FLAHERTY, Senior Judge 23 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Harry McElroy, : Petitioner : : v. : : Workers Compensation Appeal Board : (Ryder Dedicated Logistics and : Lauren Brook Transport, Inc.), : Respondents : No. 2034 C.D. 2006 ORDER AND NOW, this 31st day of January, 2008, the Order of the Workers Compensation Appeal Board in the above-captioned matter reversed to the extent it finds the issues discussed in its prior Opinion at A03-0398 moot. This matter is remanded to the WCJ for findings of fact and conclusions of law on the nature and extent of Claimant s injuries to his left knee as well as an assessment as to the liable party for those injuries and any disability that may result therefrom. The Board s Opinion is affirmed in all other respects. Ryder is instructed to pay Claimant $187.15 in partial disability for the one week he returned to work and earned less than his average weekly wage consistent with the foregoing Opinion. Jurisdiction relinquished. JIM FLAHERTY, Senior Judge
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