The opinion of the court was delivered by: Judge Flaherty
Submitted: February 27, 2009
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE JIM FLAHERTY, Senior Judge.
Carl Alessandro (Claimant) petitions for review from an order of the Workers' Compensation Appeal Board (Board) that affirmed the decision of a Workers' Compensation Judge (WCJ) suspending his benefits. We affirm.
Claimant sustained an injury to his cervical spine in the course and scope of his employment as a machinist on October 24, 2005. Claimant subsequently received payments of workers' compensation benefits based on an average weekly wage (AWW) of $841.29. On February 2, 2007, Precision Metal Crafters, LLC (Employer) filed a Suspension Petition alleging that Claimant's benefits should be suspended as of January 29, 2007 because Claimant refused to return to work made available within his physical restrictions. Employer subsequently amended its Petition to allege that Claimant was earning income performing auto body work for Mike's Car Lot and failed to report that income. Claimant testified that on October 24, 2005, he felt a pop in the back of his neck while working for Employer. He tried to work in the days following his work injury but he was in constant pain. He required surgery. According to Claimant, he attempted to return to work for Employer at light duty, but he experienced pain that he could not tolerate.
Claimant acknowledged he began light paint work for Mike's Car Lot in early 2005. He did this at his home. Claimant explained that at the time of his work injury, he had a car at his house that he was working on for the dealership. He attempted to finish the car after October 24, 2005 but could not do so. Claimant testified that his son finished the car. Claimant was paid cash for his services for Mike's Car Lot. He stated that he reported his earnings for the paint work that he earned in 2005 on his tax return. Claimant asserted, however, that he has not been physically capable to do any paint work since his injury.
Claimant stated that his wife does detailing work for Mike's Car Lot consisting of vacuuming, scrubbing interiors, cleaning the windows, and waxing the car. She did detailing work in 2006 and 2007. Her income from detailing was not reported for tax purposes because Claimant was under the impression that her income from detailing did not meet a perceived floor for reporting purposes. Claimant acknowledged he has gone to the dealership since his injury to either talk to his daughter who works there or to pick up a car for his wife.
Claimant presented the testimony of his wife, Wendy Alessandro, who stated Claimant has not done any auto painting at their house in 2006 or 2007. She stated, however, that she has done detailing work for Mike's Car Lot during that time period. She receives payment in cash.
Included in the record is an Affidavit completed by Claimant wherein he states:
6. Prior to my work injury when I worked as a machinist, I performed auto body work on a part-time basis. I have attempted to perform auto body-type work since my injury when possible, although my injury has severely limited my ability to perform this type of work. I have earned less part-time income performing auto body work subsequent to my work injury than I was earning prior to my work injury. (Emphasis added).
Reproduced Record, p. 242a. (R.R. at __).
Claimant submitted his 2005 tax return filed jointly with his spouse. The couple reported $6,540.00 in income from "side jobs." R.R. at 244a. The 2006 joint tax return, also included in the record, fails to indicate any extra income derived from any side job.
Employer presented the testimony of Michael J. Bartow, owner of Mike's Car Lot, who stated that he met Claimant in 2005 and they came to an agreement that Claimant would do some paint work for him. He added that he has not had a person to paint his vehicles since Claimant got hurt but wishes he did because "that's where the money is at, like the cheap cars that need paint work and stuff like that." R.R. at 142a-143a. Mr. Bartow asserted that Claimant did some paint work on about six cars. He acknowledged all payments were in cash and there were no records of these transactions. He agreed Claimant's son attempted to do some paint work on a few cars after Claimant's injury. Claimant's son, per Mr. Bartow, did not do a good job, however, and no further paint work was offered.*fn1
Mr. Bartow stated Claimant's wife did detailing work for him. He thought, however, that she was doing the work in tandem with Claimant's son. This was done only a few times ...