Before: Honorable James Gardner Colins, President Judge, Honorable Rochelle S. Friedman, Judge, Honorable Samuel L. Rodgers, Senior Judge. Opinion BY Senior Judge Rodgers.
The opinion of the court was delivered by: Rodgers
OPINION BY SENIOR JUDGE RODGERS
Bi-Thor Electric, Inc. (Employer or Corporation) petitions for review of an order of the Workers' Compensation Appeal Board (Board) that affirmed the decision of the Workers' Compensation Judge (WCJ) denying Employer's petition to terminate or suspend William Thornton's (Claimant) benefits. We affirm.
Claimant, an electrical contractor, is the joint owner with his wife of the Corporation. On July 20, 1990, Claimant sustained a work-related injury for which he received benefits pursuant to a Notice of Compensation Payable. Claimant's compensation rate of $419.00 was based on an average weekly salary of $700.00. Over the next several years, the parties entered into a number of Supplemental Agreements, the last of which was dated July 30, 1993. At that point Claimant had returned to work on a half time basis, receiving benefits at the rate of $233.33.
On March 1, 1994, Employer filed a petition to terminate/suspend benefits. Employer alleged that as of November 1, 1993, Claimant had fully recovered from his work-related injury or, in the alternative, had returned to work at a wage equal to or greater than his pre-injury wage.
In support of its petition, Employer presented the deposition testimony of Noubar A. Didzian, M.D. Employer also entered into evidence various financial documents of the Corporation. These included Claimant's W-2 wage and tax statements with the Corporation's payroll ledger sheets, verbal and written quotes submitted to potential customers, bank statements, federal corporate income tax returns for the years 1990, 1991 and 1992, and records of cash disbursements, cash receipts and petty cash monthly summaries for the years 1990 through part of 1994. In response, Claimant testified on his own behalf and submitted the deposition testimony of Martin A. Cohen, M.D., Claimant's treating physician.
The WCJ accepted the testimony of Claimant's medical expert as more credible and persuasive than that of Employer's, finding that Claimant had not fully recovered from his work-related injury. Consequently, the WCJ concluded that Employer had not met the burden of proof required to have Claimant's benefits terminated. As for the suspension portion of the petition, the WCJ formulated the following findings of fact relating to Claimant's work history and financial situation:
12. The Claimant's July 20, 1990 injury ongoing to the present caused and continues to cause the Claimant a loss of wages through his loss of bids and/or inability to bid on jobs for his electrical contracting business due to the limited hours to which he is restricted....
13. The Claimant's testimony is persuasive and accepted as credible. It is persuasive based on his work history and experience that puts him in a position to know within his limitations what he can or cannot do, which affects his ability to bid or not bid on jobs for the jointly owned Electrical contract business [.]
14. The evidence submitted in Findings of Fact number seven (a)(b)(c)(d)(e) has been read and considered in its entirety.[ *fn1 ] The substantial financial records related to the operation of Bi-Thor Electric Inc., do not reflect and [sic] increase in the Claimant's earnings since November 1, 1993. The records reflect a substantial and significant decrease in earnings. The Claimant has not earned more than before his July 20, 1990 work injury. The records are accepted for what they are worth but when in conflict with the Claimant's testimony as to his earnings since November 1, 1993 the Claimant is given the greater weight for belief.
(WCJ's decision, Reproduced Record, p. 372a). As a result of these findings, the WCJ concluded that Employer "failed to meet its burden of proof that the Claimant returned to work on November 1, 1993 at wages greater than or equal to his July 20, 1990 average weekly wage of $700.00." Id.
On appeal, the Board affirmed the WCJ's denial of the termination petition, concluding that the medical testimony believed by the WCJ supported the finding that Claimant had not fully recovered from his work-related injury. The Board also concluded that substantial evidence supported the finding that Claimant's average weekly wage after November 1993, was less than Claimant's pre-injury average weekly wage. Therefore, the Board also affirmed the WCJ's denial of Employer's suspension petition.
Employer now appeals to this Court, *fn2 arguing that the WCJ erred in disregarding substantial evidence that Claimant, as the sole shareholder of the Corporation, was earning more than his pre-injury wage of $700.00 per week after November 1, 1993. Specifically, Employer argues that the WCJ failed to consider the gross income of the Corporation where the evidence shows that ...