           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


P&A Marketing and Allegheny                  :
Point Insurance,                             :
                      Petitioners            :
                                             :
              v.                             :    No. 1588 C.D. 2018
                                             :    Submitted: March 22, 2019
Workers’ Compensation Appeal                 :
Board (Spencer),                             :
                      Respondent             :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ANNE E. COVEY, Judge
        HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                             FILED: August 12, 2019


              P&A Marketing and Allegheny Point Insurance (collectively,
Employer) petition for review of an order of the Workers’ Compensation Appeal
Board (Board), dated November 14, 2018. The Board modified, in part, and
affirmed, in part, the decision of a Workers’ Compensation Judge (WCJ), denying
Employer’s modification petition and granting, in part, the reinstatement petition
filed by Evelyn Spencer (Claimant).1 For the reasons set forth below, we affirm the
Board’s order.



       1
          The WCJ also denied Claimant’s penalty petition. Claimant’s penalty petition is not
relevant to this appeal, and, therefore, we do not address it in this opinion.
               On May 24, 2014, Claimant sustained a work-related injury in the
nature of a right shoulder rotator cuff tear, while working for Employer. Employer
accepted liability for Claimant’s work-related injury pursuant to a Notice of
Compensation Payable (NCP). Thereafter, on October 3, 2016, Employer filed a
modification petition, seeking a suspension of Claimant’s workers’ compensation
benefits.2 On that same date, Employer issued a Notice of Suspension, advising
Claimant that Employer had suspended Claimant’s workers’ compensation benefits
as of September 18, 2016, due to her failure to return Form LIBC-760, Employee
Verification of Employment, Self-Employment or Change in Physical Condition.
Subsequently, on November 30, 2016, Claimant filed a reinstatement petition,
seeking to have her workers’ compensation benefits reinstated subsequent to her
completion and return of Form LIBC-760 to Employer.
               Before the WCJ, Claimant testified that she has been the owner of
Chadds Ford Travel since 1990.                  (Reproduced Record (R.R.) at 154-55.)
Approximately 20 years ago, there were some changes in the travel agency business,
which caused Claimant to switch from a storefront operation to a home-based
operation by appointment only. (Id. at 155-56.) In 2008, however, the economy
declined, and Claimant had to look for additional work to help pay her bills.
(Id. at 156.) As a result, in December 2009, Claimant began working for Employer


       2
          Employer’s modification petition indicates that Employer is requesting a suspension of
Claimant’s benefits effective September 26, 2016. Based on our review of the record and the
parties’ briefs, however, it appears that this date is a typographical error and that the correct date
should be September 16, 2016, the date on which Employer offered Claimant the full-time
receptionist position. In addition, in its first hearing filing submitted to the WCJ, Employer
amended its modification petition, seeking a suspension of Claimant’s workers’ compensation
benefits effective February 14, 2016, the date on which Claimant returned to her preinjury position
in a modified-duty capacity and allegedly refused to accept caregiver/companion job assignments
that were within her restrictions.

                                                  2
as a caretaker/companion for elderly individuals. (Id. at 156-58, 160-61.) On both
her employment application and during her interview, Claimant made Employer
aware of her travel agency business. (Id. at 185-87.) Throughout her employment
with Employer, Claimant continued to operate her travel agency business on a
full-time basis by appointment and scheduled her travel agency appointments around
her caretaker/companion job assignments. (Id. at 156-58, 165.)
             Claimant also testified that on May 24, 2014, she was pulling up an
elderly individual in bed when she heard a pop and immediately experienced pain in
her right shoulder. (Id. at 166-67.) Claimant sought treatment for her injury, but she
continued to work for Employer in a limited capacity—i.e., she took less
caretaker/companion job assignments than she would have liked—due to her pain
and medications. (Id. at 168-69.) Eventually, Claimant came under the care of
Michael Pushkarewicz, M.D., who performed surgery on Claimant’s right shoulder
on April 8, 2015. (Id. at 168-70.) Following the surgery, Claimant was out of work
for approximately 4 months, but Dr. Pushkarewicz subsequently released Claimant
to return to work under restrictions of no raising her right arm above her head, no
lifting with her right arm, and no driving for longer than 15 minutes. (Id. at 170-72.)
             Claimant explained that, upon her return to work for Employer, she was
very careful to ensure that the tasks she would be required to perform for any new
clients were within her work restrictions. (Id. at 172.) Claimant indicated that she
had to reject certain caregiver/companion job assignments due to her right shoulder
symptoms and her work restrictions, including the driving restriction.
(Id. at 172-73.) Claimant explained that she had difficulty driving because she could
not move her right arm with the steering wheel in a clockwise or counterclockwise
direction, and she experienced a jabbing, throbbing pain in her right shoulder after


                                          3
driving for any length of time. (Id. at 173-74.) Claimant indicated that she also
rejected caregiver/companion job assignments if the client was a male, but that she
had previously advised Employer that she would not be comfortable providing
caretaker/companion services to male individuals. (Id. at 162-64, 178-79, 203, 219.)
Claimant admitted that she also might have declined other caregiver/companion job
assignments offered to her by Employer because the assignments started
before 10:00 a.m., she was singing in church on a Sunday, or she would be away
from home. (Id. at 218-22.) When asked whether she could recall declining a
caregiver/companion job assignment involving a recurring schedule from 10 a.m.
to 5 p.m., Claimant indicated that Dr. Pushkarewicz had placed time limitations on
her ability to work of not more than 4 hours at a time. (Id. at 222.) Claimant stated
further that, prior to the May 24, 2014 work-related injury, she often
worked 3 to 4 hours on weekday evenings or 9 a.m. to 5 p.m. on the weekends.
(Id. at 234-35.) She explained, however, that after the May 24, 2014 work-related
injury, she could no longer work evenings and weekends because the
caregiver/companion job assignments were often located in clients’ homes, where
she would not have had any assistance, and she did not believe that she was capable
of providing the necessary care. (Id. at 235, 237-38.) Claimant further indicated
that she did not have any problems with her right shoulder prior to the May 24, 2014
work-related injury. (Id. at 232.)
             Claimant testified that she has not worked for Employer since
September 2016.      (Id. at 187-88.)   She indicated that, in the beginning of
September 2016, Employer stopped offering her caregiver/companion job
assignments. (Id. at 177-78.) By letter dated September 16, 2016, Employer offered
Claimant a full-time receptionist position, Monday through Friday, 8:30 a.m.


                                         4
to 5 p.m., at Employer’s main office located in West Chester, Pennsylvania.
(Id. at 180-81.) Claimant explained that the drive from her home to Employer’s
main office would have taken her approximately 1 hour in traffic. (Id. at 181-84.)
Claimant explained further that she did not follow up with Employer on the job offer
or attempt to perform the full-time receptionist position because: (1) she continued
to experience problems with driving and remained under Dr. Pushkarewicz’s driving
restrictions, which she believed to be driving not more than 1 half hour at a time;
and (2) with a full-time schedule and the drive home from Employer’s main office,
she would not have had any time to devote to her travel agency business, which was
a full-time job. (Id. at 180-85, 230-31.)
             Claimant testified further that, following her April 8, 2015 surgery, she
continued    to   treat   with   Dr. Pushkarewicz     on     a   regular   basis—i.e.,
every 3 to 4 weeks. (Id. at 190-91.) During that time, Claimant underwent a course
of physical therapy, but her symptoms never really improved. (Id. at 207-08.)
Claimant explained that she eventually stopped treating with Dr. Pushkarewicz in
April 2017, because Dr. Pushkarewicz had informed her that there was nothing more
that he could do for her and that she was “as good as [she was] going to get.”
(Id. at 190, 192.) Claimant indicated, however, that she did not feel like her right
shoulder condition had resolved following the April 8, 2015 surgery, that she
believed that she should have been further along in her recovery, and that she
continued to experience pain and discomfort in her right shoulder, as well as
limitations with certain activities.   (Id. at 189-94.)    As a result, in June 2017,
Claimant began treating with Adrienne J. Towsen, M.D., who performed a shoulder
replacement surgery on Claimant’s right shoulder on August 11, 2017.
(Id. at 194-96.) As of the time of the September 6, 2017 hearing before the WCJ,


                                            5
Dr. Towsen had not yet released Claimant to return to work in any capacity.
(Id. at 196.)
                Claimant also presented the deposition testimony of Dr. Towsen, who
is board certified in orthopedic surgery and concentrates her practice on the
treatment of knees and shoulders. (Id. at 273, 275.) Dr. Towsen first treated
Claimant on June 5, 2017, for complaints of persistent right shoulder pain and
weakness relative to Claimant’s May 24, 2014 work-related injury. (Id. at 279-80.)
At that time, Claimant did not report that she had any problems with her right
shoulder or with performing her job as a caregiver/companion prior to
May 24, 2014. (Id. at 280.) Claimant also did not report that she had any additional
injuries to her right shoulder between May 24, 2014, and June 5, 2017. (Id.)
Dr. Towsen performed a physical examination of Claimant’s right shoulder, which
revealed significant deficits in active range of motion and strength, pain with both
active and passive range of motion, and pain with rotator cuff testing.
(Id. at 282-83.) Dr. Towsen also reviewed a September 9, 2014 MRI report of
Claimant’s right shoulder, which revealed a full thickness tear in the supraspinatus
tendon, degenerative changes in the acromioclavicular joint, and degeneration of the
biceps tendon, but no indication of arthritic change in the glenohumeral joint.
(Id. at 290-92.)    Dr. Towsen explained that, in light of the MRI results and
Claimant’s history, the rotator cuff tear in Claimant’s right shoulder was more acute
than chronic in nature and was a reasonable result of Claimant’s May 24, 2014
work-related incident.      (Id. at 292.)   Based on her evaluation of Claimant,
Dr. Towsen ultimately diagnosed Claimant with a right shoulder rotator cuff
tear/deficiency following a failed rotator cuff repair surgery. (Id. at 283-84, 286.)
While she was unsure whether she placed Claimant under any formal work


                                            6
restrictions, Dr. Towsen noted that Claimant was not capable of performing any type
of lifting, repetitive movements, or activity at shoulder height or above with her right
arm. (Id. at 284.)
             With respect to Claimant’s treatment history, Dr. Towsen testified that
Dr. Pushkarewicz performed an arthroscopic rotator cuff repair on Claimant’s right
shoulder on April 8, 2015. (Id. at 293.) Dr. Towsen indicated that Dr. Pushkarewicz
noted a large, mobile tear in his operative report, which suggested that the tear was
more acute in nature. (Id. at 293-94.) Dr. Towsen explained that, following the
surgery, Claimant consistently treated with Dr. Pushkarewicz and underwent a
standard rotator cuff rehabilitation protocol, which included physical therapy and
other nonsurgical options, but that Claimant continued to experience pain and did
not gain any strength or range of motion. (Id. at 286-90.) Dr. Towsen stated that
she did not see any indication that Claimant had ever fully recovered from her right
shoulder rotator cuff repair subsequent to the April 8, 2015 surgery. (Id. at 294.)
Dr. Towsen also believed that Dr. Pushkarewicz placed Claimant under permanent
restrictions of lifting not more than 20 pounds occasionally and not more
than 10 pounds frequently. (Id. at 300-01.) When asked whether Claimant would
have any problems with driving given the condition of her right shoulder,
Dr. Towsen stated that Claimant would likely have problems, particularly with
turning, because any movement that would bring Claimant’s right arm to shoulder
height would be difficult and, therefore, Claimant would have to rely on her other
arm for steering and turning. (Id. at 302-03.)
             Dr. Towsen also testified that, at the time of her initial evaluation of
Claimant on June 5, 2017, she ordered an MRI of Claimant’s right shoulder so that
she could better advise Claimant of her potential treatment options. (Id. at 286,


                                           7
297-98.) The MRI revealed a very large and retracted tear of the rotator cuff,
arthritic changes in the glenohumeral joint, and an abscess of the biceps tendon.
(Id. at 298-99.) Based on the results of the MRI, Dr. Towsen believed that the best
surgical option and most complete surgical fix that would give Claimant the greatest
possible shoulder function and control Claimant’s pain was a reverse shoulder
arthroplasty.     (Id. at 299-300.)   Dr. Towsen performed the reverse shoulder
replacement surgery on Claimant’s right shoulder on August 11, 2017. (Id. at 304.)
During the surgery, Dr. Towsen discovered, inter alia, that Claimant’s rotator cuff
repair had completely failed and that the tendon had fully torn away from the bone.
(Id. at 304-05.) Dr. Towsen indicated that Claimant was doing reasonably well
postoperatively, but that the typical recovery period following this type of surgery
is 9 to 12 months. (Id. at 305-06.) At the time of her August 31, 2017 deposition,
Dr. Towsen continued to treat Claimant on a regular basis and had not yet released
Claimant to return to work in any capacity. (Id. at 306-07.)
                Overall, Dr. Towsen opined within a reasonable degree of medical
certainty that Claimant’s current problems with her right shoulder and all of the care
that Claimant had received for her right shoulder since the time of the May 24, 2014
work-related incident, including the surgery that Dr. Towsen performed on
August 11, 2017, directly related to Claimant’s work-related right shoulder rotator
cuff tear. (Id. at 307-09, 313-14.) Dr. Towsen further opined that, based on
Claimant’s persistent pain with active motion and limited strength and the fact that
the subsequent MRI and surgery confirmed that Claimant’s rotator cuff had re-torn
or never fully healed, Claimant did not have a favorable result following the
April 8, 2015 surgery. (Id. at 308-09.) Dr. Towsen also opined that Claimant had




                                          8
not yet fully recovered from the May 24, 2014 work-related right shoulder rotator
cuff tear. (Id. at 310.)
             Dr. Towsen admitted that an intervening trauma is not necessary for
there to be a re-tear of the rotator cuff. (Id. at 315.) Dr. Towsen further admitted
that her opinions in this matter could possibly change if someone provided her with
information about a preexisting condition involving Claimant’s right shoulder.
(Id. at 315-17.) Dr. Towsen denied having any knowledge of Claimant’s complaint
to her primary care physician of right shoulder pain after shoveling snow on
December 22, 2009, but indicated that this fact did not change her opinions in this
matter. (Id. at 317, 342.) Dr. Towsen further indicated that a person can experience
shoulder soreness without having a rotator cuff tear and that the typical symptoms
for a rotator cuff tear are loss of active motion, weakness, and constant pain.
(Id. at 322.) Dr. Towsen also admitted that some patients present to her with rotator
cuff tears resulting from overuse injuries or age-related changes but denied that there
is a higher incidence of rotator cuff tears among individuals of Claimant’s age versus
the remainder of the general population. (Id. at 322-23.) Dr. Towsen explained:
             There is no question that some rotator cuff pathology and
             some arthritic change in joints -- in the shoulder joint,
             specifically, is related to age and degeneration. And some
             people have surgery because of that. Other people have
             surgery because of trauma.             And just because
             you’re 70 years old, doesn’t mean you can’t have trauma
             to your shoulder that causes problems that this woman has
             had otherwise.
(Id. at 339.) Dr. Towsen further conceded that there was no evidence in the operative
report that Dr. Pushkarewicz did not properly anchor the tendons or perform the
rotator cuff repair. (Id. at 323-24.) When asked how she could have then concluded
that Dr. Pushkarewicz’s rotator cuff repair surgery failed without ever discussing the


                                          9
procedure with him directly, Dr. Towsen explained that she was not being accusatory
toward Dr. Pushkarewicz but sometimes rotator cuff repairs just fail and, in this
situation, Claimant had a repair and now has a tear. (Id. at 340.) Dr. Towsen
admitted, however, that her opinion regarding the failed rotator cuff repair surgery
assumes that Claimant did not suffer any intervening trauma. (Id.)
             Employer presented the deposition testimony of David Rubenstein,
M.D., who is board certified in orthopedic surgery and specializes in the treatment
of knee and shoulder injuries. (Id. at 21.) Dr. Rubenstein performed an independent
medical examination of Claimant on April 19, 2016, which included reviewing
Claimant’s medical records, obtaining a history, and performing a physical
examination. (Id. at 25-32.) Based on his evaluation of Claimant, Dr. Rubenstein
opined that Claimant had sustained a work-related right shoulder rotator cuff tear on
May 24, 2014. (Id. at 32-33.) Dr. Rubenstein explained that, at the time of his
examination, which was a little over 1 year after she had undergone surgery,
Claimant had a good functional result with some deficits in her right shoulder,
including pain associated with rotator cuff strength testing, weakness, and decreased
range of motion, particularly in internal rotation. (Id. at 33-34.) Dr. Rubenstein
further opined that Claimant had reached maximum medical improvement and did
not require any further medical treatment. (Id. at 34, 36.) Dr. Rubenstein also
opined that Claimant was capable of returning to work in a light-duty capacity with
restrictions of driving up to 3 hours per day, but not more than 1 hour at a time,
occasional reaching under 90 degrees of elevation with the right arm, occasional
lifting up to 20 pounds, frequent lifting and carrying up to 10 pounds, and pushing
and pulling under 90 degrees elevation. (Id. at 34-35, 39-40.)




                                         10
            Employer also presented the deposition testimony of Stephanie Dolan,
Employer’s project manager, who is responsible for handling all of Employer’s
workers’ compensation claims.      (Id. at 92-93.)   Ms. Dolan testified that, on
February 14, 2016, Claimant returned to work as a caregiver in a modified-duty
capacity with restrictions of no lifting more than 20 pounds.       (Id. at 94, 96.)
Following her return to work on February 14, 2016, Employer offered Claimant
caregiver/companion job assignments that were within her restrictions when such
assignments were available. (Id. at 95-96.) Ms. Dolan explained that, between
February 16, 2016, and September 16, 2016, Claimant accepted some of the
caregiver/companion job assignments offered to her by Employer but declined or
did not respond to others. (Id. at 99-104.) Ms. Dolan further explained that none of
Claimant’s responses declining the caregiver/companion job assignments were
premised on Claimant’s inability to perform the assignments due to her work-related
injury. (Id. at 118.) Since September 16, 2016, Employer has not offered Claimant
any additional caregiver/companion job assignments even though Employer has had
caregiver/companion job assignments available that have been within Claimant’s
restrictions. (Id. at 116-17.) Ms. Dolan indicated that, on September 16, 2016,
Employer offered Claimant a full-time receptionist position, Monday through
Friday, 8:30 a.m. through 5 p.m., but that Claimant did not accept and never
responded to Employer about such position. (Id. at 105-08.) Ms. Dolan admitted
that she did not believe that Claimant was under a driving restriction and that
Employer did not consider any such driving restriction when it offered the
caregiver/companion job assignments or the full-time receptionist position to
Claimant. (Id. at 115-16.)




                                        11
             On December 15, 2017, the WCJ issued a decision, denying
Employer’s modification petition and granting, in part, Claimant’s reinstatement
petition. In so doing, the WCJ summarized the witnesses’ testimony and made the
following relevant findings of fact and credibility determinations:
             10. I have carefully reviewed Claimant’s testimony and
             make the credibility determinations, based in part on my
             personal observation of Claimant’s demeanor during
             testimony:
                   a.     I find Claimant’s testimony to be
                   credible regarding her injury, treatment, and
                   continuing        work-related        disability.
                   Claimant’s testimony in this regard is
                   consistent with her medical treatment, and
                   corroborated by objective medical evidence
                   establishing a rotator cuff tear.
                   b.     I find Claimant’s testimony to be
                   credible to the extent that it supports a finding
                   that she was partially disabled from
                   performing her pre-injury job for Employer
                   because of her work-related lifting and
                   driving restrictions. Claimant’s testimony is
                   credible in this regard because she continued
                   to accept job assignments that were within
                   her restrictions.      Although Ms. Dolan
                   identified certain job assignments that
                   Claimant rejected without reference to her
                   work injury, she agreed that Claimant could
                   have given her reasons by phone, and further
                   agreed that she did not consider Claimant’s
                   driving restrictions in making job
                   assignments.
                   c.     I find Claimant’s testimony to be
                   credible to the extent that it supports a finding
                   that she could not perform the full-time
                   receptionist position offered to her in
                   September, 2016.         I accept Claimant’s
                   testimony that the position required an hour
                   or longer driving and was thus beyond her

                                         12
       medical restrictions. I also accept Claimant’s
       testimony that she could not accept a
       full-time position because it would conflict
       with her full-time travel agent job, which she
       had continued since the date of the work
       injury.
       ....
11. I have carefully reviewed the testimony of
[Ms.] Dolan and find it to be credible regarding
Employer’s communications with Claimant about
available jobs, and Claimant’s refusal to accept the
receptionist position offered to her. However, to the extent
that Ms. Dolan’s testimony conflicts with Claimant’s
testimony accepted as credible above, Ms. Dolan’s
testimony is rejected as less credible.
12. I have carefully reviewed the medical evidence
presented in this matter and find that the testimony of
Dr. Towsen is more credible than the testimony of
Dr. Rubenstein. Dr. Towsen’s testimony is corroborated
by MRI studies which established a rotator cuff tear.
Dr. Towsen’s testimony that the original shoulder surgery
had failed, and that the August 11, 2017 surgery was
work-related, is credible given that Claimant never
recovered from her first surgery and had no history of
intervening injuries. Dr. Towsen’s testimony regarding
the 2017 MRI and surgery was unrebutted.
Dr. Rubenstein’s testimony is not credible, given that he
acknowledged Claimant’s ongoing disability yet opined
that Claimant did not need further treatment. In addition,
Dr. Rubenstein examined Claimant on April 19, 2016[,]
and did not review the June 14, 2017 MRI or the
August 11, 2017 surgery [report].
13. Regarding Claimant’s ability to return to work, I
find that Claimant continues to have limited use of her
right arm, a 20-pound lifting restriction and a driving
restriction of no more than one hour at a time. This finding
is based upon the testimony of Dr. Towsen and
Dr. Rubenstein, who agreed that Claimant continues to
have work restrictions. I find that Claimant worked within
her restrictions until September 16, 2016, at which time


                            13
               Employer no longer offered Claimant employment within
               her restrictions.
(WCJ’s Decision at 10-11.)
               Based on these findings of fact and credibility determinations, the WCJ
concluded that Employer failed to meet its burden of proving that Employer offered
Claimant available work that was within her physical capacity. The WCJ also
concluded that Claimant met her burden of proving that she was totally disabled as
a result of her May 24, 2014 work-related injury beginning on September 16, 2016,
the date on which Employer no longer offered Claimant available employment that
was within her work restrictions. Ultimately, the WCJ: (1) awarded Claimant partial
disability benefits from February 1, 2016, to September 15, 2016, based upon
Claimant’s earnings during that time period; (2) awarded Claimant total disability
benefits from September 16, 2016, to October 2, 2016; (3) suspended Claimant’s
total disability benefits from October 3, 2016, to November 8, 2016; and (4) awarded
Claimant total disability benefits from November 9, 2016, “through the present.”3
(WCJ’s Decision at 12 (emphasis added).) Employer and Claimant cross-appealed
to the Board, which modified the WCJ’s order to “award [Claimant] indemnity
benefits for total disability from November 9, 2016 and ongoing” thereafter and
affirmed the WCJ’s decision in all other respects.                    (Board’s Order dated
Nov. 14, 2018 (emphasis added).) Employer then petitioned this Court for review.




       3
         While it is not entirely clear to this Court why the WCJ suspended Claimant’s workers’
compensation benefits from October 3, 2016, to November 8, 2016, it appears that it may have
been related to Claimant’s receipt of age-related social security benefits and the credit to which
Employer was entitled as a result of Claimant’s receipt of such benefits.


                                               14
               On appeal,4 Employer argues: (1) the Board and the WCJ erred by
failing to suspend Claimant’s workers’ compensation benefits, because Claimant
returned to her time of injury job on February 14, 2016, and thereafter refused to
accept available caretaker/companion job assignments and a full-time receptionist
position offered to her by Employer in bad faith for reasons that were unrelated to
her work-related injury; (2) the WCJ committed an error of law by reinstating
Claimant’s total disability benefits as of November 9, 2016, because, in doing so,
the WCJ impermissibly expanded the description of Claimant’s work-related injury
to include a consequential condition,5 when Claimant did not file a review petition
seeking to amend the description of her injury set forth in the NCP and there was no
material mistake made at the time Employer issued the NCP; and (3) the Board
committed an error of law by substituting its own judgment for that of the WCJ and
modifying the WCJ’s order to award Claimant indemnity benefits for total disability
from November 9, 2016 and ongoing thereafter.
               First, we address Employer’s argument that the Board and the WCJ
erred by failing to suspend Claimant’s workers’ compensation benefits, because
Claimant returned to her time of injury job on February 14, 2016, and thereafter, in
bad faith and for reasons that were unrelated to her work-related injury, refused to
accept available caretaker/companion job assignments and a full-time receptionist

       4
         This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.
C.S. § 704.
       5
        A “consequential condition” is “one that is a natural consequence of the original injury.”
Carlow Univ. v. Workers’ Comp. Appeal Bd. (Wunschel) (Pa. Cmwlth., No. 1814 C.D. 2012, filed
July 12, 2013), slip op. at 6. Pursuant to Commonwealth Court Internal Operating
Procedure § 414(a), “an unreported panel decision of this [C]ourt issued after January 15, 2008,
[may be cited] for its persuasive value, but not as binding precedent.” 210 Pa. Code § 69.414(a).

                                               15
position offered to her by Employer. The gist of Employer’s argument appears to
be that there is not substantial evidence of record to support the WCJ’s finding that
the caregiver/companion job assignments and the full-time receptionist position
were not within Claimant’s work restrictions, and, therefore, the WCJ should have
continued his analysis and considered whether Claimant followed through on the
offered caretaker/companion job assignments and the full-time receptionist position
in bad faith. More specifically, Employer argues that Dr. Pushkarewicz did not place
Claimant under a driving restriction that prevented Claimant from performing the
offered caretaker/companion job assignments or the full-time receptionist position.
Employer    also   argues    that   Claimant’s   refusal   to   accept   the   offered
caretaker/companion job assignments and the full-time receptionist position had
nothing to do with Claimant’s work-related injury, but rather, related to her personal
choices, including that the caretaker/companion job assignments and full-time
receptionist position conflicted with her travel agency schedule.        In response,
Claimant argues that the Board properly affirmed the WCJ’s decision to not suspend
Claimant’s workers’ compensation benefits because the substantial, credible
evidence of record establishes that the caregiver/companion job assignments and the
full-time receptionist position were not within Claimant’s work restrictions due to
the required driving distance, and, therefore, the burden never shifted to Claimant to
demonstrate that she followed through on the caretaker/companion job assignments
and full-time receptionist position in good faith.
             In workers’ compensation proceedings, the WCJ is the ultimate finder
of fact. Williams v. Workers’ Comp. Appeal Bd. (USX Corp.-Fairless Works),
862 A.2d 137, 143 (Pa. Cmwlth. 2004). As fact-finder, matters of credibility,
conflicting medical evidence, and evidentiary weight are within the WCJ’s exclusive


                                          16
province. Id. If the WCJ’s findings are supported by substantial evidence, they are
binding on appeal.       Agresta v. Workers’ Comp. Appeal Bd. (Borough of
Mechanicsburg), 850 A.2d 890, 893 (Pa. Cmwlth. 2004). Substantial evidence is
relevant evidence that a reasonable mind might accept as adequate to support a
finding. Mrs. Smith’s Frozen Foods Co. v. Workmen’s Comp. Appeal Bd. (Clouser),
539 A.2d 11, 14 (Pa. Cmwlth. 1988). “In performing a substantial evidence analysis,
this [C]ourt must view the evidence in a light most favorable to the party [that]
prevailed before the fact[-]finder.” Hoffmaster v. Workers’ Comp. Appeal Bd.
(Senco Prods., Inc.), 721 A.2d 1152, 1155 (Pa. Cmwlth. 1998). “Moreover, we are
to draw all reasonable inferences which are deducible from the evidence in support
of the fact[-]finder’s decision in favor of that prevailing party.” Id.
             An employer seeking a suspension or modification of benefits on the
basis that the claimant has recovered some or all of his ability to work, must produce:
(1) credible medical evidence establishing that the claimant’s physical condition has
changed; and (2) evidence that the employer referred the claimant to a then-available
job that the claimant is capable of performing based on his medical clearance.
Kachinski v. Workmen’s Comp. Appeal Bd. (Vepco Constr. Co.), 532 A.2d 374, 380
(Pa. 1987). The burden then shifts to the claimant to demonstrate that he followed
through on the job referral in good faith. Id. In the event that the referral does not
result in a job, the claimant’s benefits should continue. Id.
             Here, the WCJ’s finding that the caregiver/companion job assignments
and the full-time receptionist position were not within Claimant’s work restrictions
is supported by substantial evidence.             Claimant credibly testified that
Dr. Pushkarewicz placed her under a driving restriction and that, as a result of such
driving restriction, she had to reject certain caregiver/companion job assignments.


                                          17
Claimant also credibly testified that she did not follow-up with Employer regarding
the full-time receptionist position or attempt to perform such position because the
drive from her home to Employer’s main office would take her approximately 1 hour
in traffic and would exceed Dr. Pushkarewicz’s driving restriction. In addition,
while she was not yet treating Claimant at the time that Claimant rejected the
caregiver/companion job assignments and the full-time receptionist position,
Dr. Towsen noted that Claimant would likely have had problems driving because
any movement, including turning, that would bring Claimant’s right arm to shoulder
height would have been difficult for Claimant given the condition of her right
shoulder.      We must also note that, even though the WCJ did not find
Dr. Rubenstein’s testimony to be credible, the WCJ recognized that Dr. Rubenstein
had agreed that Claimant continued to be subject to work restrictions, which
included driving up to 3 hours per day, but not more than 1 hour at a time.6


       6
          While Employer does not specifically argue that the WCJ should not have considered
Claimant’s commute from her residence to Employer’s office in determining whether the offered
full-time receptionist position was available to Claimant—i.e., within Claimant’s physical
restrictions—we note that a claimant’s inability to commute to and from an offered position can
support a finding that an offered position is not available to a claimant. See, e.g., Roadway
Express, Inc. v. Workmen’s Comp. Appeal Bd. (Palmer), 659 A.2d 12, 18-19 (Pa. Cmwlth.),
appeal denied, 670 A.2d 145 (Pa. 1995) (concluding there was substantial evidence of record to
support finding that offered dispatcher job located 120 miles from claimant’s place of residence
was not actually available to claimant because employer’s expert testified claimant could not
perform dispatcher position if claimant was also commuting 120 miles to work each day due to
the psychological overlay of his injuries); Topps Mkt. 601 v. Workers’ Comp. Appeal Bd.
(VanGorder) (Pa. Cmwlth., No. 2276 C.D. 2009, filed March 16, 2010) (concluding WCJ did not
err by concluding employer failed to establish offered position was actually available to claimant
when claimant was no longer physically capable of commuting from his residence to employer’s
store but was capable of performing modified duty position at store); Smith v. Workers’ Comp.
Appeal Bd. (Franco Constr.) (Pa. Cmwlth., No. 1108 C.D. 2007, filed Jan. 16, 2008) (remanding
matter to Board with instructions to remand to WCJ to address whether impact of claimant’s bus
commute on claimant’s work-related injuries would have impact on availability of offered
position).

                                               18
Furthermore, although not the specific focus of the parties’ arguments before this
Court, the WCJ noted that Claimant was subject to a lifting restriction and continued
to accept caregiver/companion job assignments within that restriction. Given that
there is substantial evidence of record to establish that the caregiver/companion job
assignments and the full-time receptionist position were not within Claimant’s work
restrictions (driving and/or lifting), Employer could not have met its burden of proof
and, therefore, the burden never shifted to Claimant to establish that she followed
through on the offered caretaker/companion job assignments and full-time
receptionist position in good faith. The WCJ was not required to consider whether
Claimant failed to follow-up on the offered caretaker/companion job assignments
and full-time receptionist position in bad faith for reasons unrelated to her
May 24, 2014 work-related injury because the burden never shifted to Claimant. For
these reasons, we cannot conclude that the Board and the WCJ erred by failing to
suspend Claimant’s workers’ compensation benefits.
             Next, we address Employer’s argument that the WCJ committed an
error of law by reinstating Claimant’s total disability benefits as of
November 9, 2016, because, in doing so, the WCJ impermissibly expanded the
description of Claimant’s work-related injury to include a consequential condition,
when Claimant did not file a review petition seeking to amend the description of her
injury set forth in the NCP and there was no material mistake made at the time that
Employer issued the NCP. More specifically, Employer argues that the condition
that necessitated Claimant’s need to undergo the right shoulder replacement surgery
was separate and distinct from the May 24, 2014 work-related right rotator cuff tear
and/or was a condition that developed over time and that did not exist at the time
that Employer issued the NCP. Employer, therefore, contends that the WCJ could


                                         19
not simply amend Claimant’s injury description as a means to reinstate Claimant’s
total disability benefits because no material mistake in the description of Claimant’s
work-related injury existed at the time that Employer issued the NCP. Employer
further argues that, even if the NCP contained a material mistake and the WCJ was
permitted to amend Claimant’s injury description, the medical evidence upon which
the WCJ relied to establish a causal relationship between the accepted right shoulder
rotator cuff tear and the shoulder replacement surgery was not competent to support
an award of benefits.7
               In making these arguments, Employer appears to ignore the fact that
the WCJ did not amend Claimant’s injury description nor was the WCJ required to
amend Claimant’s injury description before reinstating Claimant’s benefits, because
the reverse shoulder replacement surgery was performed to treat Claimant’s
May 24, 2014 work-related right shoulder rotator cuff tear and not some new or
consequential condition. Despite Employer’s contention that the condition that
necessitated Claimant’s need to undergo the reverse shoulder replacement surgery
was separate and distinct from the May 24, 2014 work-related right rotator cuff tear,


       7
           Claimant has not presented any substantive response in opposition to Employer’s
argument that the WCJ committed an error of law by reinstating Claimant’s total disability benefits
as of November 9, 2016, in connection with a consequential condition relating to her May 24, 2014
work-related right shoulder rotator cuff tear. Rather, Claimant argues that Employer waived this
issue by failing to raise it before the Board. In response, Employer contends that it properly
preserved this issue in its briefs to both the WCJ and the Board. We have reviewed Employer’s
briefs to both the WCJ and the Board and must conclude that Employer adequately preserved this
issue for purposes of this appeal. In both of Employer’s briefs, Employer referenced Claimant’s
failure to file a petition to review seeking to amend the description of her work-related injury to
include the alleged condition that resulted in Claimant’s need to undergo a right shoulder
replacement. (See Supplemental Reproduced Record at 22, 37.) While Employer may not have
used the language “consequential condition,” Employer’s references to Claimant’s failure to file a
petition to review seeking to amend the description of her injury are sufficient to preserve
Employer’s issue on appeal.

                                               20
Employer has not directed our attention to any medical testimony or other evidence
that would tend to establish this contention as fact. In fact, the evidence of record
establishes that the reverse shoulder replacement surgery was simply an additional
surgery that Dr. Towsen performed to repair the May 24, 2014 work-related right
shoulder rotator cuff tear because Dr. Pushkarewicz’s April 8, 2015 rotator cuff
repair surgery had failed. As discussed above, Dr. Towsen opined that the rotator
cuff repair surgery performed by Dr. Pushkarewicz on April 8, 2015, had failed and
had resulted in a rotator cuff deficiency in Claimant’s right shoulder. Dr. Towsen
further opined that Claimant continued to suffer from her May 24, 2004 work-related
rotator cuff injury and that all of the care that Claimant had received for her right
shoulder since that date, including the reverse shoulder replacement surgery, was
directly related to that original injury.
              Employer is essentially asking this Court to speculate, based on
Dr. Rubenstein’s opinion that Claimant had a good functional result, had reached
maximum medical improvement, and required no further treatment as of the date of
his independent medical examination, that Claimant’s need for the reverse shoulder
replacement surgery was separate and distinct from the May 24, 2014 work-related
right shoulder rotator cuff tear and related to a condition that developed over time.
What Employer ignores here is that the WCJ specifically found Dr. Rubenstein’s
testimony not credible, noting that Dr. Rubenstein had examined Claimant on
April 19, 2016, acknowledged ongoing disability while simultaneously opining that
Claimant did not require further treatment for her work injury, and had not reviewed
Claimant’s June 14, 2017 MRI or the August 11, 2017 reverse shoulder replacement
surgery. Thus, Dr. Rubenstein’s testimony, which was rejected as not credible,
cannot be used to support Employer’s position that Claimant had reached maximum


                                            21
medical improvement from her work-related injury prior to her reverse shoulder
replacement surgery, such that the work-related injury did not necessitate the 2017
surgery. For these reasons, we cannot conclude that the WCJ committed an error of
law by reinstating Claimant’s total disability benefits as of November 9, 2016.
            Lastly, we address Employer’s argument that the Board committed an
error of law by substituting its own judgment for that of the WCJ and modifying the
WCJ’s order to award Claimant indemnity benefits for total disability from
November 9, 2016, and ongoing thereafter. More specifically, Employer argues that
the WCJ and the Board relieved Claimant of her burden of proving the duration and
extent of her disability and improperly imposed the burden of proving Claimant’s
ability to perform work onto Employer after reinstating Claimant’s total disability
benefits for a non-work-related shoulder replacement. In response, Claimant argues
that the Board properly clarified the WCJ’s order to avoid any misinterpretation of
the language “through the present” because, in the context of an award of disability
benefits, “through the present” means the same as “ongoing.”
            We simply are not persuaded by Employer’s argument that the Board
somehow substituted its own judgment for that of the WCJ by modifying the WCJ’s
order to award Claimant indemnity benefits for total disability from
November 9, 2016, and “ongoing” rather than “through the present.” The Board
modified the WCJ’s order simply to correct language that could be subject to
misinterpretation. In addition, the WCJ did not make any findings of fact or
conclusions of law that would suggest that he intended for Claimant’s workers’
compensation benefits to be modified, suspended, or terminated as of the date of his
decision. For these reasons, we cannot conclude that the Board committed an error




                                        22
of law by modifying the WCJ’s order to award Claimant indemnity benefits for total
disability from November 9, 2016, and ongoing thereafter.
            Accordingly, we affirm the Board’s order.




                                        P. KEVIN BROBSON, Judge




                                       23
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


P&A Marketing and Allegheny          :
Point Insurance,                     :
                      Petitioners    :
                                     :
           v.                        :   No. 1588 C.D. 2018
                                     :
Workers’ Compensation Appeal         :
Board (Spencer),                     :
                      Respondent     :



                                ORDER


           AND NOW, this 12th day of August, 2019, the order of the Workers’
Compensation Appeal Board is hereby AFFIRMED.




                                     P. KEVIN BROBSON, Judge
