The opinion of the court was delivered by: Judge Leavitt
Submitted: January 28, 2009
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE DORIS A. SMITH-RIBNER, Judge, HONORABLE DAN PELLEGRINI, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JOHNNY J. BUTLER, Judge.
Robert Reyes (Claimant) appeals an adjudication of the Workers' Compensation Appeal Board (Board) denying him disability compensation and litigation costs. In doing so, the Board affirmed the decision of the Workers' Compensation Judge (WCJ) that Claimant failed to prove that his work injury caused his loss of wages and that Claimant was not entitled to costs because he did not prevail on any contested issue. We affirm.
Claimant began working for AMTEC (Employer) in August 2005 as a cable technician, installing and disconnecting cable television service. On April 26, 2006, Claimant was involved in a work-related motor vehicle accident. Claimant filed a claim petition on May 17, 2006, alleging that he sustained injuries in the accident consisting of a compression fracture at T5, headaches, and pain in his low back, middle back, upper back and neck, and that as a result, he was totally disabled as of April 26, 2006, and ongoing. On May 30, 2006, Employer issued a Notice of Compensation Denial (NCD) acknowledging that Claimant sustained a work injury in the accident but disputing Claimant's assertion that he was disabled by his injury.*fn1
On June 5, 2006, Employer filed an answer to the claim petition denying all allegations.
At the outset of the first hearing before the WCJ, Employer explained that it was not disputing that the Claimant sustained an injury in the automobile accident or that the accident was work-related. Employer did contest the extent of Claimant's disability, specifically the alleged compression fracture, and it did contest Claimant's assertion that his loss of earning power was caused by the accident.
Claimant testified about the accident. He explained that while driving a company vehicle, the brakes stopped working, causing him to swerve off the road to avoid hitting cars that were braking in front of him. Claimant hit a tree and then ran over a trench. He was wearing his seatbelt but "was bobbling around" during the incident. Notes of Testimony, September 12, 2006, at 10 (N.T. ___).*fn2 The next day, Claimant went to Lancaster General Hospital where he underwent an examination and an x-ray. He was prescribed pain medication. Several months later, Claimant began treating with Norman Stempler, D.O. for back pain. Claimant stated that the pain medication prescribed by Dr. Stempler helps.
Claimant testified that he never returned to work for Employer. According to Claimant, he called Employer from the accident scene to report what had happened and his supervisor fired him over the phone, telling Claimant that he was too much of a liability. Claimant stated that he had been involved in three motor vehicle accidents in the eight-month period he worked for Employer. The week after the accident Claimant met with his supervisor, who then informed Claimant that the accident did not cause his discharge but, rather, his failure to disconnect cable service at three locations as he had reported. Claimant acknowledged that under Employer's policy, a technician could be discharged for failing to disconnect service as directed and admitted that he had failed to do disconnects on at least one or two occasions. However, he denied that this had happened on the day cited by his supervisor.
Claimant testified that he continues to have back problems because it feels like his "spine is pinched forward." N.T., September 12, 2006, at 16. Claimant stated that he could not return to his pre-injury job as a cable technician. It is a very physical job that requires one to wear a tool belt and do considerable lifting, carrying and climbing.
Claimant presented the testimony of Dr. Stempler, a board certified orthopedic surgeon who examined Claimant on June 2, 2006, July 7, 2006, and August 18, 2006. Dr. Stempler diagnosed Claimant with a cervical, thoracic and lumbar strain/sprain and a mild compression fracture of the twelfth thoracic vertebra, all caused by the April 26, 2006, motor vehicle accident. Dr. Stempler opined that from the initial office visit until the last visit, Claimant was unable to perform his pre-injury job, but he could perform sedentary or light-duty work. Dr. Stempler was unaware of any physician removing Claimant from his job prior to Dr. Stempler's recommendation of June 2, 2006.
Employer presented the testimony of S. Ross Noble, M.D., who is board certified in physical medicine and rehabilitation, electrodiagnostic medicine, spinal cord injury medicine, and pain medicine. Dr. Noble performed an independent medical examination (IME) of Claimant on November 1, 2006. Claimant complained of pain in his mid back, but Dr. Noble's examination showed Claimant's neck, mid back and low back to be objectively normal. Claimant reported to Dr. Noble that his pain was worse at the time of the IME than it was after the accident. Dr. Noble explained that increasing pain is not indicative of a traumatic injury; traumatic injuries get better over time, not worse. Dr. Noble opined that Claimant may have sustained a soft tissue injury involving the cervical, thoracic and lumbar areas in the accident, but he was fully recovered by the time of the IME and could perform his regular job. Dr. Noble opined that Claimant was never fully disabled from his work injury and that he could have been working at all points in time. Dr. Noble testified that Claimant's thoracic compression fracture was not related to the accident, and noted that the emergency room physician who saw Claimant the day after the accident shared the same opinion.
Employer presented the testimony of Chad Carter, Claimant's supervisor. Carter testified that he went to the scene of Claimant's accident and that Claimant seemed to be fine. He declined medical treatment. Carter also explained that Employer is a contractor that performs cable installation, disconnection, upgrading or downgrading on behalf of Comcast Cable. Employer assigns technicians, such as Claimant, jobs on written work orders; technicians then submit paperwork to verify completion of a job. Employer then immediately bills Comcast.
Carter denied firing Claimant on the day of the accident. Carter testified that he fired Claimant for submitting "false billing," that was discovered after the accident. N.T., November 7, 2006, at 17. He explained that Claimant had submitted paperwork showing he had completed three disconnects on April 25, 2006, and Employer billed Comcast for that work. Claimant's paperwork was admitted into evidence. However, on April 29, 2006, Comcast complained that it had been falsely billed for the April 25, 2006, disconnects. Carter stated that submitting false paperwork was the worst thing an employee could do because it could cause Comcast Cable, Employer's only customer, to cancel its contract. Comcast discovered through its own quality control review that Claimant's disconnects had not actually been done. Accordingly, Carter fired Claimant. He had no knowledge that Claimant had ever engaged in false billing prior to April 29, 2006. But for Claimant's misconduct, Carter testified, Employer would have accommodated Claimant's limitations, if any, in order to keep him employed after the accident.
The WCJ granted Claimant's claim petition for a closed period but only with respect to medical benefits. The WCJ noted that the parties had agreed that Claimant had been in a work-related motor vehicle accident and that the "issue in controversy is the nature of any injury and extent of disability." WCJ Decision, Finding of Fact 1. The WCJ accepted as credible the testimony of Dr. Noble and found that Claimant's work injury was a soft tissue strain and sprain to his neck and back from which he recovered as of the date of the IME.*fn3 The WCJ also found on the basis of Dr. Noble's testimony, that Claimant's work injury did not render him disabled. The WCJ rejected Dr. Stempler's testimony where it conflicted with that of Dr. Noble. The WCJ rejected Claimant's testimony and accepted Chad Carter's testimony as credible. The WCJ found that "Claimant's disability relates to his termination for cause . [for] falsifying work orders and billing for work that was not completed." WCJ Decision, Finding of Fact 28. Therefore, the WCJ found that Claimant's loss of earnings as of April 29, 2006, was caused by Claimant's willful misconduct and not by his work injury.
Based on these findings, the WCJ denied disability benefits, and terminated medical benefits as of November 1, 2006. The WCJ also denied Claimant's request for reimbursement of $3,330.55 in litigation costs. Of this total, $3,000 was incurred in taking Dr. Stempler's medical deposition, which took place after the second hearing before the WCJ. The remainder was incurred in obtaining transcripts of deposition and hearing testimony. The WCJ denied costs because Claimant failed to prevail on the issues in controversy in the case, defined as the "nature of Claimant's injury and extent of disability." WCJ Decision, Finding of Fact 1. Claimant appealed, and the Board affirmed. Claimant then petitioned for this Court's review.*fn4
On appeal, Claimant presents two issues for our consideration. First, Claimant argues that the Board erred in denying indemnity benefits because the "credible evidence" supports an award of those benefits. Second, Claimant argues that he is entitled to reimbursement for litigation costs because he was successful, in part, in the proceedings before the WCJ.
In Claimant's first issue, he argues that the Board erred in not awarding disability benefits from April 26, 2006, through November 1, 2006, the date of the IME.*fn5 Claimant contends that Dr. Noble opined that Claimant was limited to light-duty work after the accident. Citing Brandywine Mazda Suzuki v. Workers' Compensation Appeal Board (Asman), 872 A.2d 253 (Pa. Cmwlth. 2005), Claimant also asserts that because his misconduct preceded the work injury, Employer was required to show the availability of light-duty work, which it failed to do. According to Claimant, the fact that Employer did not become aware of Claimant's misconduct until after the accident does not relieve Employer of its burden to prove job availability.
Employer counters that Claimant is mischaracterizing Dr. Noble's testimony. It notes that there is nothing in the record to establish that any physician restricted Claimant to light-duty work after the April 26, 2006, accident before Dr. Stempler saw Claimant. Further, it is clear from the evidence found credible by the WCJ ...