IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Newman & Company, Inc., :

Petitioner : No. 1261 C.D. 2022

:

 v. : Submitted: October 10, 2023

:

Mark Warner (Workers’ :

Compensation Appeal Board), :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE McCULLOUGH FILED: November 30, 2023

Newman & Company, Inc. (Employer) petitions for review of the October 

27, 2022 decision of the Workers’ Compensation Appeal Board (Board), which 

affirmed the Workers’ Compensation Judge’s (WCJ) April 8, 2022 decision granting

Mark Warner’s (Claimant) Claim Petition (Petition) and ordering Employer to pay

Claimant: (1) temporary total disability (TTD) benefits as of April 23, 2021, and 

ongoing at the rate of $994.98 per week; (2) ten percent interest on all past due 

compensation; (3) all reasonable, necessary, and related medical expenses for the work 

injuries; and (4) Claimant’s counsel’s litigation costs. Upon careful review, we affirm 

in part and reverse and remand in part.

I. Facts and Procedural History

On May 14, 2021, Claimant filed the Petition, asserting that on October 

28, 2020, he sustained a right leg wound with complications that, he explained,
2

developed from driving a cab-over truck 12 to 15 hours a day, and required 

hospitalization. (R.R. at 2a, 14a-15a.) Claimant alleged in the Petition that he gave 

verbal notice to the safety manager on the same day the injury occurred. Id. at 2a. 

Claimant requested partial disability benefits from October 28, 2020, until April 23, 

2021, and total disability benefits ongoing from April 24, 2021. Id. at 4a. Employer

denied a work-related injury in a Notice of Compensation Denial dated May 27, 2021. 

Claimant’s Deposition Testimony

Claimant testified by deposition that he worked for Employer as a truck 

driver, driving twelve to fifteen hours per day without getting out of the truck. Id. at 

14a. He explained that he was seated over the covered engine, which “gave off over 

200 degrees of heat during the course of the day.” Id. at 15a. He explained that 

whenever he drove, his right leg was up against the heat of the engine all day. Id. at 

20a. Claimant explained that at the end of October he started noticing pain and a “little 

knot” on the outside of the middle of his calf. Id. at 18a. On October 28, 2020, 

Claimant was not feeling “quite [himself]” because of excruciating pain in his leg, 

however he finished his shift. Id. at 16a. He showed his leg wound to safety manager, 

John Foerst (Foerst). Claimant did not tell Foerst that his leg wound was work related. 

Id. at 37a. Foerst sent Claimant to Employer’s panel physician, Dr. Neill Mallis, who 

prescribed an antibiotic and released him back to work. Id. at 18a-19a. The panel 

physician did not relate Claimant’s wounds to work conditions. Claimant continued to 

work. Id. at 18a. About one month later, a “second bump” formed on the right leg 

below his knee. Id. at 21a. At the end of April 2021, he was completely unable to walk 

on his right leg, and he could not climb in and out of the truck. Id. at 22a. He had a 

large open wound from his ankle to his mid-calf in the shape of the letter “C” and sharp 

pain in his right leg. Id. at 23a-25a. On April 28, 2021, Claimant went to the 
3

emergency room (ER), reported that he had wounds on his leg, and was hospitalized 

for four days with a sepsis infection. Id. at 24a. Claimant’s last day of work for 

Employer was April 23, 2021. Id. at 28a. On April 1, 2021, he started working for 

Health Care Builders, a healthcare organization through which he provided home care 

to his wife, eight hours per week. Id. at 31a-32a. He explained that there was a short 

period of time between April 1, 2021 and April 23, 2021, during which he worked for 

Employer full time and Health Care Builders part time. Id. at 32a.

Claimant testified that his wounds are still open, and that he still 

experiences excruciating pain during the day and at night. Id. at 30a. He is currently 

treating with Dr. Robert Sing who performs wound care and laser therapy to prevent 

blood clots. Id. at 27a-28a. Claimant asserted that he is no longer able to drive a truck 

because he has to both elevate and exercise his leg, which is not conducive to non-stop 

driving. Id. at 44a. 

Dr. Sing’s Deposition Testimony

Claimant presented the deposition testimony of his treating physician, Dr. 

Sing, board certified in family medicine, sports medicine, and emergency medicine. 

Dr. Sing first saw Claimant on May 13, 2021. He had two large ulcerations on his right 

lower leg, with drainage. Id. at 79a. He opined, based on his review of the ER medical 

records, that Claimant was a diabetic. Id. at 83a. Dr. Sing also noted that the infectious 

disease doctor at the hospital, Dr. Fumberg, documented that Claimant noted he was a 

truck driver. He also noted that in October 2020, Claimant was driving the truck and 

the heat of the truck on his leg eventually caused the bumps on his leg to breakdown 

and form large ulcerations that continued to progress over the following six months. 

Dr. Sing explained that diabetic patients have a lack of sensation on the skin and lack 

of circulation in their extremities. Id. at 85a. He opined that when Claimant was 
4

burned, he did not feel the pain when it was occurring, which is called peripheral 

diabetic neuropathy. Id. Because there was no blood supply, the wounds became 

septic. Id. at 86a. Dr. Sing opined that the wounds and stasis ulceration were caused 

by the engine burns sustained on October 28, 2020. Id. at 93a-95a. Dr. Sing testified 

that it is not a coincidence that these wounds were on his right lower extremity exactly 

at the site on the side of his leg that was next to the hot engine of the truck. The burn 

on the top of Claimant’s leg started a cascade of events that could not heal because of 

an underlying diabetic condition. He stated that Claimant was not fully recovered from 

the work injuries and cannot return to his pre-injury position. Id. at 95a.

John Foerst Deposition Testimony

Employer presented the deposition testimony of the corporate safety 

director, Foerst, who testified that on October 28, 2020, he sent Claimant for a fitnessfor-duty evaluation. Id. at 132a. Although an infection or sore was found behind 

Claimant’s right leg during the evaluation, Claimant was cleared to continue driving 

full time without restrictions. Id. Claimant showed Foerst his wound but he did not 

indicate that it was work related. Id. at 133a. Foerst took the surface temperature of 

the cab that covers the engine of Claimant’s truck sometime after the litigation began. 

Id. After the truck ran continuously for probably over ten hours, the temperature 

registered at 100.58 degrees Fahrenheit. Id. at 140a-41a. Foerst opined that Claimant’s 

outside of right knee could have possibly leaned against the engine compartment, but 

not the back of his knee. Id. 

Claimant stopped working around April 23, 2021. Id. On May 4, 2021, 

Claimant called Foerst to let him know that he was in the hospital for an infected leg 

wound but did not indicate that it was work related. Id. Foerst first learned about 

Claimant’s workers’ compensation claim when he received the Petition in the mail. Id.
5

135a-36a. On September 28, 2021, Foerst sent Claimant a letter offering him his preinjury job. Id. at 139a. Claimant did not respond. Id. At the time of the deposition, 

the job was available, and Claimant remained an employee of Employer. Id. at 138a39a.

Steven Boc Deposition Testimony

Employer also presented the deposition testimony of Steven Boc, M.D.,

(Dr. Boc), a podiatrist, board certified in foot and ankle surgery and podiatric medicine. 

Id. Dr. Boc evaluated Claimant on September 15, 2021. Id. at 185a. After reviewing 

medical records and examining Claimant, Dr. Boc believed Claimant had a venous 

stasis ulcer on his right lower leg. Id. at 196a. He opined that the stasis ulcer on 

Claimant’s calf was not caused by hot temperatures or a burn, but caused by chronic 

lymphedema, morbid obesity, diabetes, and persistent swelling in the lower extremity. 

Id. He stated that Claimant did not sustain a work-related burn injury. Id. at 197a. He 

testified that laser treatment is not “providing any further therapeutic care for the ulcer 

site at present.” Id. at 201a. He opined that Claimant could return to work. Id. at 200a.

Employer submitted a video showing temperature readings taken from 

within Claimant’s assigned work truck. Id.

Claimant’s Live Testimony

Claimant testified live before the WCJ on January 11, 2022, to provide the 

WCJ with an update of his condition. He testified that his wound is still open, but it is 

healing, and that he still treats with Dr. Sing twice a week. (Transcript of Proceedings, 

1/11/22, at 7.) He testified that he is no longer working for Health Care Builders and 

that he stopped working there in September 2021. Id. at 8. He testified as of September 

2021, he has had no source of income. Id. He testified that there was a temperature 

gauge on the dashboard that read the actual temperature of the engine, and back when 
6

he was diving, the temperature was between 180 and 200 degrees. Id. at 9-10. He 

testified that his right calf was against the engine compartment of the truck he was 

driving between 12 to 15 hours a day. Id. at 10.

WCJ’s Findings and Decision

On April 8, 2022, the WCJ issued a Decision and Order granting the 

Petition. The WCJ credited Foerst’s testimony that he was not aware of the workrelated nature of Claimant’s injury until receipt of the Petition. The WCJ credited 

Claimant’s testimony about the heat conditions against his right leg while driving for 

Employer, his ongoing symptoms related to the burn injury he sustained while working 

rendering him disabled as of April 23, 2021, and his inability to work. The WCJ noted 

that that area of his leg was close to the heat from the engine. The WCJ concluded that 

Claimant was driving the truck for Employer, and there was a temperature gauge on 

the dashboard that read the actual temperature of the engine as between 180 and 200 

degrees. Claimant’s right lower calf was burned from being up against the engine 

compartment of the truck that he drove for Employer. On a given day, his leg was 

against the engine compartment up to 15 hours per day. 

The WCJ also credited Dr. Sing’s opinion that Claimant sustained stasis 

ulceration status post burn wounds of the right lower extremity as a result of his work 

injury, and that he has not fully recovered so as to be able to return to work. Finally, 

the WCJ stated that Dr. Boc provided a thorough account for his medical determination;

however, the weight of the evidence supports Dr. Sing’s findings and medical records 

reviewed by both physicians. (WCJ Decision, 4/8/22, at 12.)

The WCJ concluded that “Claimant satisfied his burden of proving by 

credible competent evidence that he sustained a work-related injury in the course and 

scope of his employment on October 28, 2020, in the form of stasis ulceration status 
7

post burn wounds of the right lower extremity.” Id. at 13. Relevant to our analysis 

here, the WCJ made the following finding of fact with regard to Claimant’s temporary 

concurrent employment with Health Care Builders:

s. Claimant was concurrently employed by [Health] Care 

Builders, which is healthcare work for his wife. He started 

working for [it] on April 1, 2021. There was a period of time 

where he was working for [] Employer full[]time and for 

[Health] Care Builders part time. The job involved assisting 

his wife because she has Lupus and essentially independent 

but requires some care.

t. Claimant was working for [Health] Care Builders and 

Employer at the same time, he was paid $11.00 per hour and 

worked 8 hours per week for [Health] Care Builders. Since 

he stopped working for Employer, he now works 40 hours 

per week for [Health] Care Builders. Claimant explained that 

the reason he is currently capable of working for [Health] 

Care Builders but not [] Employer is because his wife is 

homebound, and she does not work. All he has to do is sit 

with her and monitor her. It is not overworking him to help 

her with her needs. 

(Finding of Fact (FOF) No. 3(s) and (t)) (citations omitted).

The WCJ also made the following finding regarding notice to Employer:

8. This [WCJ] finds Claimant’s testimony about his ongoing 

symptoms related to the burn injury he sustained while 

working, rendering him disabled as of April 23, 2021, as well 

as his inability to return to work, to be credible . . . . 

[C]laimant’s first diagnosis of the work-related nature of 

this injury appears to be April or May 2021. [C]laimant 

provided notice to [E]mployer by [the P]etition on May 14, 

2021.

(WCJ Decision, 4/8/22, at 12) (emphasis added). 
8

The WCJ directed Employer to pay total disability benefits as of April 23, 

2021, and ongoing, which he deemed entirely attributable to the work injury at the rate 

of $994.98 per week, as well as work-related medical benefits. Id. at 14. 

Employer appealed to the Board, arguing that the Petition should have 

been denied and dismissed because Claimant failed to prove that he gave timely notice 

of his alleged work-related injury within 120 days from October 28, 2020, i.e., when 

he first noticed the wound, pursuant to Section 311 of the Workers’ Compensation Act

(Act).1 Employer further argued that the WCJ’s Decision was not supported by 

substantial competent evidence. Employer alternatively argued that should the Board 

affirm the award of benefits, Employer is entitled to an offset from the wages Claimant 

earned from his employment with Health Care Builders. 

In [FOF] 3(s), the WCJ erroneously refers to Claimant as 

“concurrently employed by [Health] Care Builders.” The 

WCJ appears to have intended this in the colloquial sense 

rather than the legal sense, as Claimant’s earnings from 

[Health] Care Builders are not included in the average 

weekly wage calculation. No allegation is made that 

Claimant was concurrently employed at the time of injury. 

Claimant did not start working for [Health] Care Builders 

until April 2021, months after his alleged work injury. 

1 Act of June 2, 1915, P.L. 736, § 311, as amended, 77 P.S. § 631. Section 311 provides:

Unless the employer shall have knowledge of the occurrence of the 

injury, or unless the employe or someone in his behalf, or some of the 

dependents or someone in their behalf, shall give notice thereof to the 

employer within twenty-one days after the injury, no compensation 

shall be due until such notice be given, and, unless such notice be given 

within one hundred and twenty days after the occurrence of the injury, 

no compensation shall be allowed.

77 P.S. § 631. This section also sets forth a discovery rule for instances in which the nature of the 

injury or its causal relation to employment is not readily apparent. See id. Pursuant to such provision, 

the notice period does not commence until the employee “knows, or by the exercise of reasonable 

diligence should know, of the existence of the injury and its possible relationship to his employment.” 

Id.
9

However, the WCJ did not make any factual findings 

regarding Claimant’s actual earnings from [Health] Care 

Builders so that Employer may properly offset any 

benefits that may be due and owing.

(On-Line Appeal, 4/13/2022, at 3) (emphasis added).

Finally, Employer argued that litigation costs were not recoverable and 

were not payable. 

On October 27, 2022, the Board affirmed the WCJ’s Decision. After 

review of the testimony, the Board determined the WCJ’s findings concerning the 

cause of Claimant’s injury and timely notice of injury to Employer were supported by 

substantial evidence. The Board acknowledged that the WCJ had not expressly stated 

the standard applied regarding timely notice of injury, but nevertheless concluded that 

the discovery rule applies to Claimant’s injury. (Board Decision, 10/27/22, at 6.) The 

Board agreed that the 120-day notice provision of Section 311 of the Act, in cases 

involving other than occupational diseases, began to run in this case when Claimant 

knew or should have known that he was injured, and that the injury was work related, 

regardless of whether the injured worker is disabled by the injury. Id. The Board 

observed that, per the WCJ’s findings, Claimant did not know of the work-relatedness 

of his October 28, 2020 injury until he met with Dr. Sing on May 13, 2021. The Board 

found that the notice was timely because Claimant filed the Petition (thus giving 

Employer notice of injury) on May 14, 2021. Id. The Board further explained, relying 

on this Court’s decision in Tapco Inc. v. Unemployment Compensation Board of 

Review, 650 A.2d 1106, 1109 (Pa. Cmwlth. 1994):

Although [Employer] counters that Claimant should have 

known about his injury and its purported relationship to his 

employment in October 2020, the fact that one party to a 

proceeding may view testimony differently is not grounds for 
10

reversal if substantial evidence supports the lower tribunal’s 

findings.

(Board Decision, 10/27/22, at 7.)

Next, the Board determined that the WCJ did not err in failing to offset 

the total disability benefits Employer was directed to pay ongoing from April 23, 2021, 

with the wages Claimant earned from Health Care Builders beginning on April 1, 2021. 

[Employer] next argues that, although the WCJ concludes 

that Claimant was “concurrently employed by [Health] Care 

Builders,” the WCJ did not include Claimant’s earnings from 

[Health] Care Builders in the average weekly wage 

calculation. By way of background, no allegation was made 

that Claimant was concurrently employed at the time he was 

injured. [Employer] concedes that “Claimant did not start 

working for [Health] Care Builders until April 2021, months 

after his alleged work injury.” The use of the word 

“concurrent” in the Decision is found in the WCJ’s summary 

of Claimant’s testimony. Claimant had testified by 

deposition as to his employment with [Health] Care Builders 

after having been asked “did you have a concurrent 

employer?” Claimant then testified that he started working 

for [Health] Care Builders on April 1, 2021. Claimant 

testified that he worked for [Employer] full[]time and 

[Health] Care Builders part[]time at some point. Claimant 

later testified live that he stopped working for [Health] Care 

Builders in September. This testimony was elicited in 

response to counsel saying “you talked about having 

concurrent employment with [Health] Care Builders. Are 

you still working with Care Builders?” Claimant confirmed 

that he was not working for [Health] Care Builders on 

October 28, 2020. 

Contrary to the way the term was used during Claimant’s 

testimony, concurrent in the term “concurrent employer” 

under the Act means “at the time” of the injury. See Freeman 

v. [Workmen’s Compensation Appeal Board] (C.J. 

Langenfelder & Son), 527 A.2d 1100 (Pa. Cmwlth. 1987). 
11

“Indeed, it is well accepted that an employee must be 

concurrently employed at the time of the injury for the 

employee to receive workmen’s compensation benefits 

calculated on the basis of both employments.” Id. at 1102. 

Section 309(e) provides, in relevant part, that “[w]here the 

employe is working under concurrent contracts with two or 

more employers, his wages from all such employers shall be 

considered as if earned from the employer liable for 

compensation.” Kurpiewski v. [Workers’ Compensation 

Appeal Board] (Caretti, Inc.), 202 A.3d 870, 887 (Pa. 

Cmwlth. 2019) (citing 77 P.S. § 582(e)). “However, for a 

claimant’s employment with a second employer to qualify as 

‘concurrent employment,’ the claimant had to have been 

working for both employers “at the time of the [work] 

injury.” Id. (citing Freeman[, 527 A.2d] at 1101-02) 

(emphasis in original). Because the instant Claimant testified 

that he worked only for [Employer] on October 28, 2020, the 

WCJ did not err in failing to offset the total disability benefits 

[Employer] was directed to pay ongoing from April 23, 2021 

with the wages Claimant earned from [Health] Care Builders 

beginning on April 1, 2021. See id.

(Board Decision, 10/27/22, at 8-10.)

Finally, because Claimant prevailed in part, the Board did not vacate the 

award of litigation costs or the approval of the counsel fee agreement between Claimant 

and his counsel. Id. This appeal2 by Employer followed.

II. Issues

Employer raises the following issues: (1) whether the WCJ erred by not 

denying and dismissing the Petition because Claimant failed to prove that he gave 

2 Our review is limited to determining whether an error of law was committed, whether 

necessary findings of fact were supported by substantial evidence, and whether constitutional rights 

were violated. Department of Transportation v. Workers’ Compensation Appeal Board (Clippinger), 

38 A.3d 1037 (Pa. Cmwlth. 2011).
12

Employer notice of his alleged work-related injury within 120 days of October 28, 

2020; (2) whether the WCJ’s Decision was supported by substantial competent 

evidence; and (3) whether the WCJ erred by failing to allow Employer to take an offset 

for Claimant’s post-injury earnings from Health Care Builders.

III. Discussion

A. Notice

Employer argues that the Claimant’s Claim Petition should have been 

denied because the notice Claimant gave of his injury was not timely under Section 

311 of the Act. Employer argues that both the WCJ and the Board erroneously used 

the date Dr. Sing told Claimant of the relationship between the heat from the truck 

engine and his injuries to “start the clock” on the deadline to provide notice. 

Timeliness of a claimant’s notice to his employer is mandatory for 

recovery of workers’ compensation benefits. Duquesne Light Co. v. Workmen’s 

Compensation Appeal Board (Kraft), 416 A.2d 651 (Pa. Cmwlth. 1980). Section 311 

of the Act sets forth the time limitation on notice of injury to the employer and when 

the time for giving notice begins to run. It states, in relevant part:

Unless the employer shall have knowledge of the occurrence 

of the injury, or unless the employe or someone in his behalf 

. . . shall give notice thereof to the employer within twentyone days after the injury, no compensation shall be due until 

such notice be given, and, unless such notice be given within 

one hundred and twenty days after the occurrence of the 

injury, no compensation shall be allowed . . . .

77 P.S. § 631.

The discovery rule under Section 311 permits that “employees who suffer 

an injury that is not readily and immediately ascertainable have the same rights under 

the Act as those employees who sustain an injury . . . as long as they proceed with 
13

reasonable diligence.” Sell v. Workers’ Compensation Appeal Board (LNP 

Engineering), 771 A.2d 1246, 1251 (Pa. 2001). The standard of reasonable diligence 

requires “a reasonable effort to discover the cause of an injury under the facts and 

circumstances present in the case.” Id. (quoting Cochran v. GAF Corp., 666 A.2d 245, 

249 (Pa. 1995)) (internal quotations omitted). While reasonable diligence is an 

objective standard, “it is sufficiently flexible to take into account the different 

capacities people have to deal with the circumstances they confront.” Id. In order to 

trigger the running of the 120-day period for notice, a claimant must have: (1) 

knowledge or constructive knowledge, (2) of a disability which, (3) exists, (4) results 

from an occupational disease or injury, and (5) has a possible relationship to the 

employment. Allegheny Ludlum Corp. v. Workers’ Compensation Appeal Board 

(Holmes), 998 A.2d 1030, 1034 (Pa. Cmwlth. 2010).

The claimant bears the burden of establishing he gave the employer timely 

notice of the injury under Section 311. City of Philadelphia v. Workers’ Compensation 

Appeal Board (Williams), 851 A.2d 838 (Pa. 2004). The question of the timeliness of 

that notice is generally one of fact. Katz v. Evening Bulletin, 403 A.2d 518 (Pa. 1979). 

As a result, where the WCJ determines a claimant gave an employer timely notice, we 

must determine whether substantial evidence supports that finding. Carrier Coal 

Enters. v. Workmen’s Compensation Appeal Board (Balla), 544 A.2d 1111 (Pa.

Cmwlth. 1988).3

3 This Court’s role is not to reweigh the evidence or review the credibility of the witnesses. 

Sell, 771 A.2d at 1251. The WCJ has exclusive province over questions of credibility and evidentiary 

weight. A&J Builders, Inc. v. Workers’ Compensation Appeal Board (Verdi), 78 A.3d 1233, 1238 

(Pa. Cmwlth. 2013). The WCJ may accept or reject the testimony of any witness, including a medical 

witness, in whole or in part. Id. Whether the record contains evidence to support findings other than 

those made by the WCJ is irrelevant; the critical inquiry is whether the record supports the findings 

actually made. Id. at 1238. We must view the evidence in the light most favorable to the prevailing 

party and give it the benefit of all inferences reasonably deduced therefrom. Id. at 1239.
14

Based on the facts found by the WCJ here, we conclude Claimant met his 

burden of proving he gave Employer notice of his injury as required under Section 311. 

The WCJ found: “[C]laimant’s first diagnosis of [the] work[]related nature of this 

injury appears to be April or May 2021. [C]laimant provided notice to [Employer] by 

[P]etition on May 14, 2021.” (WCJ Decision, 4/8/22, at 12.) In other words, the WCJ 

found that Claimant only learned his injuries were work related when Dr. Sing so 

informed him in April or May of 2021. This finding is directly supported by the 

testimony of Claimant and Foerst. Claimant testified that his leg wounds started as one 

painful knot or bump underneath the skin, and over time it eventually opened and 

became ulcerated. On October 28, 2020, Claimant told Foerst about the first wound 

and showed it to him. Foerst sent Claimant to Employer’s panel physician, Dr. Mallis,

who “was unable to substantiate a work-related type [of] injury.” (R.R. at 193a.) Dr. 

Mallis stated that Claimant had “an infection or an abscess of this right leg, but the 

doctor was unclear of the origin of the infection.” Id. Dr. Mallis noted that it was an 

infection of the right leg, non-work related, as there was not a direct correlation 

between the infection and the activity at work. Id. at 194a. Claimant was returned to 

full duty and the infection was deemed not work related. Id. 

Although Employer contends that the WCJ should have concluded that 

Claimant knew or should have known that his first leg wound was work related on 

October 28, 2020, we note that neither Foerst nor Dr. Mallis, at that time, connected

the wound to Claimant’s work conditions either. Claimant’s symptoms were not 

necessarily particular to a prolonged exposure to high heat from the truck engine, but 

could have been the result of any number of non-compensable conditions. This was 

borne out by the competing opinions of the medial experts. Moreover, Claimant’s

wounds, which started as lumps and knots underneath his skin, were not an obvious or 
15

common injury apparent to the ordinary claimant.

4

 The WCJ found, based on his 

observations of Claimant’s live testimony and his credibility determinations, that the 

first time Claimant knew or could have known it was work related was when Dr. Sing 

made the connection in his diagnosis of Claimant in April or May 2021. Because the 

WCJ is the ultimate factfinder in workers’ compensation cases, and the issue of whether 

a claimant has complied with Section 311 is a question of fact, Storer v. Workers’

Compensation Appeal Board (ABB), 784 A.2d 829, 831-32 (Pa. Cmwlth. 2001), taking 

the totality of the circumstances into consideration, the WCJ’s findings were proper 

and supported by substantial evidence, and we will not disturb those findings now.

B. Substantial Competent Evidence/Reasoned Decision

Reasoned Decision

Employer next argues that the WCJ’s decision as to the mechanism of 

injury was not reasoned because the WCJ did not articulate verifiable reasons for 

credibility determinations and did not adequately explain the basis for accepting certain 

portions of medical expert opinions while rejecting other portions. Employer argues 

that the WCJ did not give a thorough explanation as to why he found Claimant and Dr. 

Sing credible. Specifically, the WCJ offered the following statement about Claimant’s 

4 Further, considering the flexibility of the reasonable diligence standard, we note that 

Claimant, a layperson, also believes he contracted diabetes mellitus through the open wound. He 

testified on cross-examination at the January 11, 2021 hearing in this regard, as follows: 

Q. You made a statement just a moment ago that this injury caused you 

to have diabetes. Is that your understanding of how your diabetes 

started? 

A. Yes. Through the open wound. Yes. 

Q. Okay. And it’s your belief that you get diabetes through an open 

wound? 

A. From what I understand, yes.

(Hearing Transcript, 1/11/2021, at 13-14.) 
16

credibility: “Claimant’s testimony and the fact that his complaints are entirely 

consistent with the testimony and opinions of Dr. Sing, who this [WCJ] also finds 

credible. [Dr. Sing’s] opinion is supported by [C]laimant’s credible testimony.” (FOF 

No. 8.) In other words, Employer contends that in the WCJ’s view, the credibility of 

Claimant’s testimony depended on the credibility of Dr. Sing, and vice versa, which is 

the antithesis of the “actual objective basis” standard required of a WCJ when 

reviewing deposition testimony.

Section 422(a) of the Act states that all parties are “entitled to a reasoned 

decision containing findings of fact and conclusions of law based upon the evidence as 

a whole which clearly and concisely states and explains the rationale for the decisions 

so that all can determine why and how a particular result was reached.” Section 422(a) 

of the Act, 77 P.S. § 834. Accordingly, the WCJ “shall specify the evidence upon 

which the [WCJ] relies and state the reasons for accepting it in conformity with this 

section.” Id. “The reasoned decision requirement has been interpreted to mean that, 

when a WCJ reviews deposition testimony, the WCJ must state an ‘actual objective 

basis’ for the credibility determination.” Michel v. Workers’ Compensation Appeal 

Board (U.S. Steel Corp.), 966 A.2d 643 (Pa. Cmwlth. 2009). A decision is reasoned 

“if it allows for adequate review by the [Board] without further elucidation and if it 

allows for adequate review by the appellate courts under applicable review standards.” 

Daniels v. Workers’ Compensation Appeal Board (Tristate Transport), 828 A.2d 1043, 

1052 (Pa. 2003).

Here, Claimant testified before the WCJ about his work injury, his 

symptoms, and his notice to Employer. He testified that he drove the truck 12 to 15

hours per day. He explained that he was seated over the covered engine, and that his 

right leg was up against the heat of the engine all day. The WCJ had the opportunity 
17

to assess Claimant’s demeanor and found him credible. “[A] WCJ’s observation of a 

witness’s demeanor alone is sufficient to satisfy the reasoned decision requirement.” 

Amandeo v. Workers’ Compensation Appeal Board (Conagra Foods), 37 A.3d 72, 77 

(Pa. Cmwlth. 2012). That Employer does not agree with the WCJ’s credibility decision 

does not mean the WCJ’s decision was not a reasoned one.

Moreover, the WCJ identified the evidence he accepted, the evidence he 

rejected, and his reasons therefor. The WCJ’s explanations for his credibility 

determinations do not leave the Court imagining “why the WCJ believed one witness 

over another.” Dorsey v. Workers’ Compensation Appeal Board (Crossing 

Construction Company), 893 A.2d 191, 196 (Pa. Cmwlth. 2006). The WCJ’s decision 

provides a reasonable basis for our appellate review and, thus, satisfies the reasoned 

decision requirement of Section 422(a) of the Act.

Substantial Evidence

Substantial evidence is such relevant evidence as a reasonable mind might 

accept to support a finding of fact. Berardelli v. Workmen’s Compensation Appeal 

Board (Bureau of Personnel State Workmen’s Insurance Fund), 578 A.2d 1016, 1018 

(Pa. Cmwlth. 1990). In evaluating a substantial evidence challenge, the Court may not 

reweigh the evidence or credibility determinations. Bethenergy Mines, Inc. v. 

Workmen’s Compensation Appeal Board (Skirpan), 612 A.2d 434, 437 (Pa. 1992). 

Additionally, “[the Court] must view the evidence in the light most favorable to the 

prevailing party and give it the benefit of all inferences reasonably deduced from the 

evidence.” A & J Builders, Inc. v. Workers’ Compensation Appeal Board (Verdi), 78 

A.3d 1233, 1239 (Pa. Cmwlth. 2013). Finally, “[i]t is irrelevant whether the record 

contains evidence to support findings other than those made by the WCJ; the critical 

inquiry is whether there is evidence to support the findings actually made.” Lahr 
18

Mechanical v. Workers’ Compensation Appeal Board (Floyd), 933 A.2d 1095, 1101 

(Pa. Cmwlth. 2007) (quoting Minicozzi v. Workers’ Compensation Appeal Board 

(Industrial Metal Plating, Inc.), 873 A.2d 25, 29 (Pa. Cmwlth. 2005)). 

Employer argues that the WCJ’s reasons for crediting Dr. Sing over Dr. 

Boc are not supported by substantial evidence. It submits that the only doctor who 

could explain, using objective clinical observations, the difference between a burn and 

a diabetic ulceration was Dr. Boc. Employer also contends that there is no evidence in 

the record which a reasonable person would accept as adequate to conclude that 

Claimant burned his leg on a 100-degree plastic engine cover. 

Employer’s arguments about the sufficiency of the evidence go to the 

weight and credibility of the evidence. “[T]he WCJ, as fact-finder, has complete 

authority over questions of witness credibility and evidentiary weight.” Verizon 

Pennsylvania Inc. v. Workers’ Compensation Appeal Board (Mills), 116 A.3d 1157, 

1162 (Pa. Cmwlth. 2015). As laid out above, the WCJ credited Dr. Sing’s opinion that 

the wound started from a burn which then became ulcerated because Claimant was 

unable, due to his diabetes, to feel the pain and diminished blood circulation. It is 

irrelevant that Dr. Boc testified otherwise. The WCJ “is free to accept or reject the 

testimony of any witness, including a medical witness, in whole or in part.” Williams 

v. Workers’ Compensation Appeal Board (USX Corp.—Fairless Works), 862 A.2d 137, 

143 (Pa. Cmwlth. 2004). The WCJ credited Dr. Sing’s explanation over Dr. Boc’s of 

how the leg wounds came about and developed, a determination within his exclusive 

province as factfinder. 

Regarding the physical conditions of the truck cab where Claimant sat, 

evidence showed that the engine itself heated up to 180 to 200 degrees while Claimant 

drove the truck. The WCJ simply believed that Claimant’s leg wounds were caused by 
19

prolonged contact with the hot engine cover for 12 to 15 hours a day five days a week, 

and was not swayed by Employer’s temperature tests. 

Employer also takes issue with the WCJ’s finding, in crediting Claimant, 

that “Claimant has consistently reported a similar history of his mechanism and 

progression of injury to the medical providers he has seen.” (FOF No. 8.) Employer 

argues that a review of Dr. Mallis’ October 2020 records indicates that Claimant could 

not identify a particular mechanism of injury. Therefore, according to Employer, the 

evidence does not support a credibility determination based on a purported consistency. 

This argument is also unavailing. Although Claimant may not have mentioned the heat 

from the truck engine to Dr. Mallis, the medical records from the ER did document that 

Claimant noted he was a truck driver and in October 2020 he was driving the truck and 

the heat of the truck on his leg eventually caused the bumps on his leg to breakdown 

and he formed large ulcerations that continued to progress over the following six

months. Those medical records were sufficient to support the WCJ’s finding.

C. Benefits Calculation

The Board determined that Health Care Builders did not qualify as a 

“concurrent employer” because it was not Claimant’s employer at the time of injury. 

Accordingly, it concluded that the WCJ did not err in failing to offset Claimant’s 

benefits by his income from Health Care Builders.

Employer argues that the Board misconstrued the issue it raised on appeal. 

Employer asserts it did not claim that Health Care Builders was a concurrent employer 

and did not challenge the WCJ’s calculation of Claimant’s average weekly wage based 

on Health Care Builders being a concurrent employer. It concedes that Health Care 

Builders was never a “concurrent employer.” Rather, it had argued to the Board that 

the WCJ erred by failing to allow Employer to take an offset for Claimant’s post-
20

injury earnings from Health Care Builders. Employer notes this is a different issue 

than the one the Board addressed in its opinion. 

In support of its argument that it is entitled to an offset credit, Employer 

argues, Claimant’s post-injury earnings go to the extent of his disability (i.e., loss of 

earning power) and thus should have been considered in calculating and awarding only 

partial disability benefits from April to September 2021, rather than the total

disability benefits the WCJ awarded. Employer argues that here, the WCJ found that 

Claimant worked 40 hours per week for Health Care Builders, earning $11.00 per hour, 

after he stopped working for Employer, and that despite Claimant’s return to work full 

time earning $440.00 per week, the WCJ ordered Employer to pay temporary total 

disability as of April 23, 2021, and ongoing at the rate of $994.98 per week. Id. at 

274a-75a. Employer points out that the WCJ did not make any factual findings 

regarding Claimant’s post-injury earnings with Health Care Builders, or order Claimant 

to provide Employer with his earnings information to allow the calculation of an offset. 

Thus, it argues, the WCJ’s decision to order payment of total disability benefits rather 

than partial disability benefits is not supported by sufficient substantial evidence, 

insofar as any benefits may be found to be due and owing. 

A claimant is only entitled to wage loss benefits based on a loss of timeof-injury earning power, which is measured by the average weekly wage as of the date 

of injury. Section 306(a) of the Act, 77 P.S. § 511. Section 306(a)(2) of the Act 

provides: “Nothing in this act shall require payment of total disability compensation 

benefits under this clause for any period during which the employe is employed or 

receiving wages.” 77 P.S. § 511(2). Under Section 306(b) of the Act, a claimant is 

entitled only to partial disability benefits if he retains any “earning power” after a work 

injury. 77 P.S. § 512(b). Partial disability benefits may be measured by comparing the 
21

claimant’s earnings before the injury occurred to the claimant’s post-injury earnings. 

Scott v. DeAngelis, 281 A.2d 172, 176 (Pa. Cmwlth. 1971) (affirming Board’s finding 

that the claimant remained partially disabled and its conclusion that his disability 

caused a loss of earnings measurable by the difference between his earnings before the 

injury in full-time heavy labor and his earnings after the injury as a part-time taxicab 

driver). Here, Claimant had earnings from Health Care Builders post-injury from April 

2021 to September 2021, but the WCJ and the Board awarded total, not partial, 

disability benefits during that period. Employer raised this issue in its appeal to the 

Board. See Certified Record, Item No. 7. But the Board did not address this issue 

beyond stating that Health Care Builders was not a concurrent employer and therefore 

those earnings should not be counted in calculating Claimant’s compensation, which 

was not the issue raised by Employer. Because the Board left the question of the extent 

of Claimant’s loss of earning power completely unanswered and whether his benefits 

should be adjusted accordingly, we must reverse and remand.

IV. Conclusion

The Board’s decision is affirmed in part and reversed in part. The Board’s 

decision is affirmed insofar as it affirmed the WCJ’s conclusion that Claimant provided 

timely notice of his injury to Employer, that the WCJ’s decision was reasoned, and that 

the WCJ’s credibility determinations were supported by substantial evidence. We

reverse on the issue of the total benefits awarded between April 2021 and September 

2021. Claimant had earnings from Health Care Builders during that time, but the WCJ 

and the Board awarded total and not partial disability benefits during that period. The 

matter is remanded for consideration of whether Employer is entitled to a credit for 

Claimant’s post-injury earnings consistent with this opinion.

________________________________

PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Newman & Company, Inc., :

Petitioner : No. 1261 C.D. 2022

:

 v. :

:

Mark Warner (Workers’ :

Compensation Appeal Board), :

Respondent :

ORDER

AND NOW, this 30th day of November, 2023, the Workers’ 

Compensation Appeal Board’s (Board) October 27, 2022 decision is hereby 

AFFIRMED, in part, and REVERSED, in part, and this matter is REMANDED, in 

part. The Board’s decision is affirmed insofar as it concluded that the notice 

provided by Mark Warner to Newman & Company, Inc., was timely, that the 

Workers’ Compensation Judge’s (WCJ’s) decision was reasoned, and that the 

WCJ’s credibility determinations were supported by substantial evidence. We 

reverse on the issue of the total benefits awarded between April 2021 and September 

2021. Mark Warner had earnings from Health Care Builders during that time, but 

the WCJ and the Board awarded total and not partial disability benefits during that 

period. The matter is hereby remanded for consideration of whether Newman & 

Company, Inc. is entitled to a credit for Mark Warner’s post-injury earnings 

consistent with this memorandum opinion. 

Jurisdiction relinquished.

________________________________

PATRICIA A. McCULLOUGH, Judge