SUBMITTED: April 13, 2017
BEFORE: HONORABLE P. KEVIN BROBSON, JULIA K. HEARTHWAY,
BRIGANCE LEADBETTER, Senior Judge
K. HEARTHWAY, JUDGE.
Torijano (Claimant) petitions for review of the September 21,
2016 order of the Workers' Compensation Appeal Board
(Board) which affirmed the workers' compensation
judge's (WCJ's) decision and order granting In A
Flash Plumbing's (Employer) suspension petition. We
was employed by Employer as a plumber's helper. (R.R. at
On May 30, 2014, Claimant sustained an injury, which
Employer's notice of compensation payable described as a
low back strain. (R.R. at 10, see WCJ's Findings
of Fact (F.F.) No. 1.) Subsequently, Employer filed a
petition to suspend compensation benefits alleging that
Employer offered a specific job to Claimant which he refused.
(WCJ's decision at 3.) Claimant filed an answer denying
the material allegations, and hearings were held before the
offered the deposition testimony of Steven J. Valentino,
D.O., Claimant's treating physician. Dr. Valentino
testified that he first examined Claimant on July 1, 2014.
Dr. Valentino opined that during treatment, Claimant could
perform light duty work. Dr. Valentino last examined Claimant
on August 19, 2014 and Claimant's exam was completely
normal. Dr. Valentino felt that at that time, Claimant was
fully recovered. (WCJ's F.F. No. 2.)
also offered the testimony of Robbin Nocella. Ms. Nocella is
a co-owner of Employer and performs administrative duties.
Ms. Nocella testified that Claimant returned to work on June
11, 2014 with a ten pound lifting restriction. (WCJ's
F.F. No. 3a, R.R. at 97.) Ms. Nocella stated that Claimant
never complained that he was being given work he was not
supposed to do. (WCJ's F.F. No. 3a, R.R. at 97.) Ms.
Nocella also testified that she asked Claimant to call in
before jobs and when he left in order to direct him to
assignments and make sure he was getting light duty, as well
as to keep track of his hours. (WCJ's F.F. No. 3b, R.R.
at 98a, 105-06.) Ms. Nocella testified that Claimant did not
usually call in, which led to a reprimand. (R.R. at 98a,
see WCJ's F.F. No. 3b.) Ms. Nocella testified
that she asked Claimant to sign a paper that she discussed
the reprimand with him, and Claimant got upset. (R.R. at 99.)
Claimant did not show up for work after she talked to him.
(R.R. at 99.) Ms. Nocella stated that Claimant was not fired.
(WCJ's F.F. No. 3c, R.R. at 99.) She stated that later,
Claimant was "cleared" by his doctor but that
Claimant never showed up after being released to full duty,
despite her sending him letters. (R.R. at 99, see
WCJ's F.F. No. 3c.) She further stated that employment
was available to Claimant even if restrictions were
necessary. (R.R. at 100.)
Nocella, Employer's vice-president also testified. Mr.
Nocella testified that he provided Claimant with light duty
work doing "HVAC" because it is lighter work than
plumbing. (WCJ's F.F. No. 4a, R.R. at 111.) He testified
that Claimant never complained that he was being asked to do
more than permitted by his restrictions or that the work was
worsening his condition. (WCJ's F.F. No. 4a, R.R. at
112.) Mr. Nocella testified that he met with Claimant in
September 2014, and Claimant told him that Ms. Nocella had
asked Claimant to sign a letter regarding his failure to call
in as requested and to get to assignments properly.
(WCJ's F.F. 4c, R.R. at 112-13.) Mr. Nocella testified
that Claimant stated he refused to sign the letter and quit
because he was asked to sign the letter. (WCJ's F.F. No.
4b, R.R. at 113.) Mr. Nocella stated that work would still be
available to Claimant if he had not quit, even if he required
light duty. (WCJ's F.F. No. 4c, R.R. at 114.)
also offered the testimony of Mark Riley who is a master
plumber with Employer. Mr. Riley supervised Claimant when he
returned to work with restrictions. Mr. Riley testified that
he did not ask Claimant to work beyond his restrictions.
(WCJ's F.F. No. 5b, R.R. at 118.) Mr. Riley testified
that Claimant did not complain that he had to do anything
over his restrictions or that his symptoms were getting
worse. (WCJ's F.F. No. 5c, R.R. at 118.)
also offered the testimony of Kevin Kling, a master plumber
with Employer. Mr. Kling testified that he supervised
Claimant while he was working light duty. (WCJ's F.F. No.
6a, R.R. at 125.) Mr. Kling testified that he never asked
Claimant to work beyond his restrictions. (WCJ's F.F. No.
6b, R.R. at 125.) Mr. Kling testified that Claimant never
complained that work was worsening his back condition.
(WCJ's F.F. No. 6b, R.R. at 126.)
also submitted into evidence a copy of a letter dated July
23, 2014, from Ms. Nocella to Claimant. The letter stated
that Employer had made light duty available to Claimant but
he had not come to work, and Employer was "unsure of why
we have not heard from you." The letter also stated that
Employer could accommodate updated work restrictions based on
Claimant's July 22, 2014 exam with Dr. Valentino, as it
had done in the past. (Certified Record, Exhibit D-5.)
offered the deposition testimony of Christian I. Fras, M.D.,
who is a board certified orthopedic surgeon. Dr. Fras first
examined Claimant in December 2014. (WCJ's F.F. No. 7a,
R.R. at 180.) Dr. Fras diagnosed Claimant with aggravation of
degenerative disc disease and spondylosis as a result of the
work-related injury on May 30, 2014. (WCJ's F.F. No. 7c,
R.R. at 184.) Dr. Fras also saw Claimant on January 5, 2015
at which time Claimant was still symptomatic (see
WCJ's F.F. No. 7d, R.R. at 186-87), and again on May 18,
2015, (R.R. at 189). Dr. Fras opined that Claimant is capable
of doing light duty work but is not fully recovered.
(WCJ's F.F. No. 7e, R.R. at 185-86, 188.)
testified that after he was injured, he returned to work in
June 2014. (WCJ's F.F. No. 8b, R.R. at 39.) In his
opinion, it was not light duty. (WCJ's F.F. No. 8b, R.R.
at 39.) Claimant stated he did not tell the Nocellas that the
work was too heavy; it was light duty for them. (WCJ's
F.F. No. 8b, R.R. at 40.) Claimant claimed that he complained
to Mr. Kling but not to the Nocellas. (WCJ's F.F. No. 8b,
R.R. at 42-43.) Claimant stated he did not quit his job.
(WCJ's F.F. No. 8c, see R.R. at 47.) Claimant
admitted that he told the adjuster that the only reason he
was not working was because of a reprimand he received.
(WCJ's F.F. No. 8c, R.R. at 47.) Claimant said he did not
feel fully recovered. (WCJ's F.F. No. 8a.)
credited the testimony of the Nocellas over that of Claimant
as to the reason Claimant is not working, because Claimant
conceded that he told the adjuster that the only reason he
was not working was because of the reprimand he received.
(WCJ's F.F. No. 10.) Additionally, the WCJ found that the
fact that Claimant discussed with Mr. Nocella that Ms.
Nocella asked Claimant to sign the letter regarding his lack
of compliance with her request gave credence to the fact that
Claimant was upset by that and quit. (WCJ's F.F. No. 10.)
Additionally, the WCJ credited the testimony of Mr. Kling and
Mr. Riley over that of Claimant regarding the work Claimant
was given. (WCJ's F.F. No. 11.) The WCJ found that Ms.
Nocella told Claimant not to do more than his restrictions
allowed and that Claimant did not complain. (WCJ's F.F.
No. 11.) The WCJ did not believe that Claimant was asked to
do more. (WCJ's F.F. No. 11.) The WCJ found that Claimant
voluntarily quit. (WCJ's F.F. No. 12.) The WCJ concluded
that Employer met its burden ...