A decision granting a claim petition, but not awarding wage loss benefits, was supported by substantial competent evidence and, therefore, cannot be disturbed on appeal.

The claimant, a certified nurse assistant, filed a claim petition alleging multiple work injuries, which occurred on January 14, 2020, while she was attempting to move a 300-pound patient. According to the evidence presented before the Workers’ Compensation Judge, the claimant was released to return to full-time work on March 25, 2020. The claimant stated that she did not return to work because she could not perform her full duties. Later, in May 2020, the claimant returned to work, modified duty, at her regular pay. She was subsequently taken out of work by her doctor on August 13, 2020, and had not worked since. In September 2020, the claimant underwent rotator cuff surgery. She stated that she did not think she could perform her full-duty job with the employer. 

The judge granted the claim petition, but rejected the claimant’s testimony that she could not work and could not perform light-duty work on and after March 24, 2020, or any work after August 13, 2020. The judge also found that as of July 17, 2020, the claimant had fully recovered from her work injuries, and terminated benefits as of that date. Additionally, the judge suspended the claimant’s benefits for the period between January 14, 2020—the date of the injury—and July 17, 2020. The judge also awarded unreasonable contest attorney’s fees assessed against the employer. 

The claimant and the employer appealed to the Workers’ Compensation Appeal Board. The Board remanded the case to the workers’ compensation judge on the attorney’s fee issue in light of the Supreme Court’s holding in Lorino v. WCAB (Commonwealth of Pennsylvania), 266 A.3rd 487 (Pa. 2021), wherein the Supreme Court held that attorney’s fees may be assessed, even where a contest is not unreasonable. On remand, the judge granted the request for attorney’s fees and granted the claim petition in the same way, again. The claimant once more appealed, and the Board reaffirmed. 

In her appeal to the Commonwealth Court, the claimant argued the decision that limited the description of her injuries, found her fully recovered and its duration was in error. She also appealed the denial of wage loss benefits. The court dismissed the claimant’s appeal, finding that what the claimant was doing was simply challenging the judge’s credibility determinations and assignment of weight to the evidence, both of which are within the judge’s ambit. As for the denial of wage loss benefits issue, the court agreed with the employer that the claimant waived the issue, since it was not raised in her original appeal. It was only in the second appeal, post-remand, that the claimant gave a more specific attack on the judge’s decision regarding the non-payment of wage loss benefits.
 

_{What’s Hot in Workers’ Comp, Vol. 27, No. 11, November 2023, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2023 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}