IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kenneth P. Marinack, :

Petitioner :

:

v. : No. 1161 C.D. 2022

: 

City of Pittsburgh (Workers’ :

Compensation Appeal Board), :

Respondent :

City of Pittsburgh, :

Petitioner :

:

 v. : No. 1163 C.D. 2022

:

Kenneth P. Marinack (Workers’ :

Compensation Appeal Board), : Submitted: May 23, 2024

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE LORI A. DUMAS, Judge

OPINION 

BY JUDGE McCULLOUGH FILED: July 12, 2024

Before the Court are the consolidated petitions for review filed by 

Kenneth P. Marinack (Claimant) and the City of Pittsburgh (Employer) seeking review 

of the September 27, 2022 decision of the Workers’ Compensation Appeal Board 

(Board), affirming the decision of Workers’ Compensation Judge (WCJ) Anne Crilley. 

WCJ Crilley granted in part and denied in part Claimant’s petition to reinstate benefits

he received in connection with a 2004 work injury he sustained during his employment 
2

as a firefighter for Employer (Reinstatement Petition). For the reasons set forth below, 

we reverse the Board’s order.

I. Background

This case has a protracted procedural history that we recount to the extent 

necessary to dispose of the parties’ issues on appeal. Claimant was injured on May 21, 

2004, when he fell in a stairwell while pulling down a ceiling in a burning building. 

He was 42 years old at the time. Employer issued a Notice of Compensation Payable 

(NCP) describing the accepted injury as a left shoulder rotator cuff tear and an 

aggravation of degenerative disc disease in the low back. Pursuant to the NCP,

Claimant collected compensation benefits in the amount of $690 per week. 

A. 2008 Litigation

On September 24, 2008, Employer filed a petition to suspend Claimant’s 

compensation benefits as of September 16, 2008, alleging that he had retired and had 

voluntarily removed himself from the workforce. On October 27, 2009, WCJ Nathan 

Cohen found in favor of Employer and suspended Claimant’s benefits as of September 

2008. The Board reversed on appeal, concluding that the evidence showed that 

Employer had fired Claimant, rather than that Claimant had voluntary withdrawn from 

the workforce. Employer petitioned this Court for review, and we affirmed the Board 

in City of Pittsburgh v. Workers’ Compensation Appeal Board (Marinack) (Pa. 

Cmwlth., No. 100 C.D. 2011, filed February 7, 2012). We based our decision on City 

of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson), 4 A.3d 1130 (Pa. 

Cmwlth. 2010) (plurality op.) (Robinson I), affirmed, 67 A.3d 1194 (Pa. 2013) 

(Robinson II), which at that time was pending before the Pennsylvania Supreme Court.

Employer petitioned for allowance of appeal to the Supreme Court. By 

that time, that Court had decided Robinson II, which established a new analytical 
3

framework for determining whether an employee receiving workers’ compensation 

benefits has withdrawn from the workforce. Robinson II, 67 A.3d at 1209. The 

Supreme Court vacated this Court’s order and remanded for reconsideration in light of 

Robinson II. We, in turn, remanded the matter for the WCJ to make factual findings 

regarding Claimant’s separation from the workforce. On remand, the WCJ ruled that 

Employer failed to prove that Claimant had voluntarily removed himself from the 

workforce and denied Employer’s petition to suspend Claimant’s benefits. The Board 

issued an opinion and order on November 30, 2016, affirming the WCJ’s decision. We 

affirmed the Board in City of Pittsburgh v. Workers’ Compensation Appeal Board 

(Marinack) (Pa. Cmwlth., No. 2048 C.D. 2016, filed Aug. 21, 2017), 2017 WL 

3585193.

B. 2010 Litigation

Meanwhile, in separate litigation between the parties, Employer filed a 

petition to suspend or modify Claimant’s benefits on December 27, 2010, alleging that 

Claimant had been self-employed as a handyman since his injury. Employer requested 

a hearing to obtain information concerning Claimant’s earnings during the relevant 

period. Claimant also filed a review petition alleging an incorrect description of his 

injury and that a neck injury should be included. (Supplemental Reproduced Record 

(S.R.) at 5b, 7b.) Specifically, Claimant alleged that in 2009, he was in a motor vehicle 

accident and had “increased” neck problems. He then had neck surgery in December 

2009, and during physical therapy of his neck, he “started developing some additional 

problems with his back” and this led to his March 11, 2009 low back surgery. (S.R. at 

7b.) 
4

The petitions were assigned to WCJ Irving Bloom. In support of its 

petition to suspend or modify benefits, Employer offered Claimant’s LIBC-7501and 

LIBC-7602forms that Claimant had completed. In all forms up to 2008, Claimant 

“verified” that he was neither employed nor self-employed at any time while receiving 

workers’ compensation benefits. (S.R. at 5b.) In his January 25, 2011 LIBC-750

forms, he approximated $2,500 in earnings from May 2009 to December 2009. In other 

LIBC-750 forms filed afterwards, Claimant represented that his earnings for the same 

period were “less than $1,500.” (S.R. at 8b.) Employer offered Claimant’s deposition 

during which Claimant admitted he had a construction business since 1996, and that on 

June 7, 2004, approximately one week after his injury, he executed a contract for a 

project for which he received $11,000. (S.R. at 5b.) Claimant, however, did not report 

this on his income tax return because he lost money on the project and did not believe 

it was income. Id. Before WCJ Bloom, Claimant testified that he had two or three 

handyman jobs in 2009 but did not work after December 2009. He claimed that after 

his indemnity benefits were discontinued via the October 27, 2009 decision, he had to 

borrow about $4,000 from his daughter and $500 from his aunt to make ends meet. 

(S.R. at 10b.) Employer introduced invoices, receipts, work proposals, and bank 

records to counter Claimant’s claim of lack of earnings outside of his workers’ 

compensation benefits. Only one proposal separated the labor and material costs. 

1

 Under the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended,

77 P.S. §§ 1–1041.4; 2501–2710, the LIBC-750 requires employees receiving benefits to report 

earnings from employment or self-employment within 30 days. Section 311.1 of the Act, added by 

the Act of June 24, 1996, P.L. 350 77 P.S. § 631.1(a).

2 The purpose of the LIBC-760 is to inform an employer of the claimant’s work status and 

medical condition. It is a verification by the employee that his status regarding the entitlement to 

receive compensation has not changed and a notation of any changes of which the employee is aware 

at the time the employee completes the verification, including employment, self-employment, wages 

and change in physical condition. 77 P.S. § 631.1(d).
5

There was no designation on the invoices and receipts to identify the proposal to which 

it corresponded. The tax records had no tax year or obvious relation to Claimant’s selfemployment activities. As noted by WCJ Bloom, there were also multiple references 

to deposits made that did not correlate with Claimant’s testimony. (S.R. at 11b-12b.) 

For example, in November and December 2009, Claimant made deposits in the amount 

of $300 and $500, after the October 27, 2009 decision terminating his benefits, so these 

amounts were not indemnity benefits. (S.R. at 13b.) Also, in November and December 

2009, Claimant deposited $2,750.25. Again, this was after the October 27, 2009 

decision terminating his benefits. Id. In February 2011, Claimant deposited $750, 

which was after the October 27, 2009 decision terminating his benefits and during the 

timeframe Claimant was allegedly without income and not otherwise working. Id. In 

May and June 2011, Claimant deposited $2,000, which was after the October 27, 2009 

decision terminating his benefits and during the timeframe Claimant was allegedly 

without income and not otherwise working. (S.R. at 14b.) 

On March 27, 2014, WCJ Bloom suspended Claimant’s benefits as of 

June 2009 based on his findings that Claimant’s testimony as to his allegations 

concerning the nature of his business was not credible and that he failed to provide 

Employer with the information necessary to determine his earnings in 2009. In 

resolving the suspension petition, WCJ Bloom made the following findings regarding 

Claimant’s credibility: 

39. Based upon review, and having had the opportunity to 

observe [C]laimant’s demeanor, this Workers’ 

Compensation Judge makes the following credibility 

determinations:

This Workers’ Compensation Judge finds [C]laimant not 

credible as to his allegations, concerning the nature of his 

business. Specifically, [C]laimant’s answers during
6

testimony were evasive, inconsistent and contrary to other 

evidence of record. In fact, this Judge had to repeatedly 

instruct [C]laimant to answer the questions asked on crossexamination. 

This Workers’ Compensation Judge finds it difficult to 

reconcile [C]laimant’s various positions taken, which 

seemingly change depending on his claim status.

* * * *

40. [W]hen [C]laimant benefitted from averring that he was 

not working during litigation, he was either unable to work 

or simply not working. When [C]laimant benefitted from 

averring that he was working during litigation, he was able 

to produce limited information suggesting he was working, 

but with little “income” by his own report. Claimant would 

have this Workers’ Compensation Judge believe that the only

time he had self-employment earnings was in 2004 (when his

self-employment came to light and resulted in his discharge) 

and in 2009 - which only commenced after his March 2009 

deposition, but only disclosed after he did not prevail.

This Workers’ Compensation Judge recognizes that 

[C]laimant would allege that this was a “small business” and 

that he made little to no money. However, and for this Judge 

to credit the same, then [C]laimant must be found credible. 

Simply stated [C]laimant is not found credible. Further, 

[C]laimant asserts that following expenses, he made no 

money, yet, and again, he seemingly has little to no records -

which would be in his sole possession - to confirm that he 

made no money, or that his expenses resulted in “no income”.

* * * *

42. This case thus presents this Workers’ Compensation 

Judge with one of two options as to [C]laimant’s credibility. 

At worst, [C]laimant has knowingly misrepresented and/or 

withheld information as to his self-employment at various 

times during his claim. If this the case, then [C]laimant

cannot benefit from his own malfeasance. At best, 
7

[C]laimant was mistaken as to what had to be reported and 

when it was to be reported, and otherwise engaged in poor 

record keeping to confirm his averments. Yet, neither 

alternative allows this Judge to find him credible or to find in 

his favor.

(S.R. at 14b-17b) (emphasis added).

WCJ Bloom then concluded

[w]here a claimant is uncooperative as to earning power 

information, including the refusal or failure to provide 

federal income tax returns or releases, benefits may be 

suspended. Claimant was directed by this Workers’ 

Compensation Judge and a prior [WCJ] to produce data 

relative to his business. This Workers’ Compensation Judge

notes that [C]laimant submitted much documentation with 

little or no information as to his self-employment. There was 

a lack of correlation with [C]laimant’s testimony as to 

amounts received and the net and gross amounts 

resulting. Under these circumstances, a suspension is fully 

justified.

(S.R. at 17b) (emphasis added).

Regarding Claimant’s review petition, WCJ Bloom denied it as he 

concluded that Claimant presented insufficient evidence to warrant the further 

amendment of the injury description. WCJ Bloom noted that the March 17, 2011 

operative report of Dr. Patrick Smith “discusses the surgery on said date, but does not 

address the cause of the same.” (S.R. at 14b.)

The Board affirmed WCJ Bloom’s decision, and Claimant petitioned for 

this Court’s review. This Court affirmed, holding that because Claimant stated that he 

was engaged in self-employment projects but did not provide Employer with adequate 

information to ascertain his earnings, suspension of Claimant’s benefits was 

appropriate. Marinack v. Workers’ Compensation Appeal Board (City of Pittsburgh 
8

Fire Bureau) (Pa. Cmwlth., No. 871 C.D. 2015, filed Feb. 19, 2016), 2016 WL 683295, 

at *7.

C. 2016 Reinstatement Petition

On November 21, 2016, Claimant filed the instant Reinstatement Petition

seeking the reinstatement of benefits, alleging a worsening of his work-related 

condition.

3 Claimant indicated a date of onset of March 17, 2011, for the change in 

condition when he underwent low back surgery to treat his back issues. (Reproduced 

Record (R.R.) at 270a.) In support, he submitted the deposition of his surgeon, Dr.

Patrick N. Smith, who testified that Claimant reported complaints of low back pain, 

and pain into his legs. Dr. Smith performed a lumbar laminectomy and decompression 

on March 17, 2011. (R.R. at 136a-37a.) He performed a revision laminectomy in 

December of 2011 and fusion from L2-S1. He opined that Claimant had an aggravation 

of his lower lumbar degenerative disc disease which resulted in the need for the two

surgeries. He opined that it was caused by the work injury in May of 2004. 

At a hearing before WCJ Crilley on November 20, 2018, Claimant handed 

Employer’s counsel a completed verification LIBC-760 form dated June 22, 2018, 

which indicated that he was not currently employed or self-employed, that he was 

self-employed from May 1, 2009, to December 1, 2009, and that he earned “less than 

$1,500.00.” (R.R. at 195a-96a, 248a.) Regarding the period from May 1, 2009, to 

December 1, 2009, he testified that he had attempted to perform work as a handyman 

and during that time earned less than $1,500. Otherwise, he has had no other earnings. 

 

3 We note that under the Act, a WCJ may, at any time, modify, reinstate, suspend, or terminate an

NCP upon petition filed by either party, upon proof that the disability of an injured employee has 

increased, decreased, recurred, or has temporarily or finally ceased. Section 413(a) of the Act, 77 P.S. 

§ 772.
9

Claimant also presented a written summary of his injuries which was admitted into 

evidence, without objection. 

WCJ Crilley denied Claimant’s Reinstatement Petition by Decision and 

Order circulated June 12, 2019. In doing so, WCJ Crilley determined that Claimant’s 

request for reinstatement of benefits retroactive to 2011, due to worsening of his 

condition, had already been addressed by WCJ Bloom and was, therefore, barred by 

the doctrine of technical res judicata and/or collateral estoppel and by this Court’s 

decision in Weney v. Workers’ Compensation Appeal Board (Mac Sprinkler Systems, 

Inc.), 960 A.2d 949 (Pa. Cmwlth. 2008).

4

 (R.R. at 276a-77a.) 

Next, WCJ Crilley addressed Employer’s argument that the suspension of 

Claimant’s benefits should remain in place because WCJ Bloom had previously 

rejected Claimant’s credibility as to his 2009 earnings “based on [] Claimant’s failure 

and/or refusal to provide documentation of self-employment earnings.” (R.R. at 270a.) 

WCJ Crilley concluded that although Claimant’s benefits were previously suspended 

for his failure to return relevant self-employment earning information, Claimant had 

credibly testified before her “that he performed handyman work under his own business 

name from May 1, 2009, to December 1, 2009, earning approximately $1,500. He 

returned LIBC forms at the hearing held on November 20, 2018.” (R.R. 274a.) Noting

the de minimis nature of the earnings, WCJ Crilley found that Claimant met the 

requirement of reporting information at least as of November 20, 2018. (R.R. at 275a.)

 

4 As we will discuss in detail infra, the Weney Court held that a claimant’s review petition seeking 

to amend the description of his injury in the NCP to include additional injuries of which he was aware 

and knew to be related to his work injury during earlier review petition proceedings was barred from 

doing so by the doctrine of technical res judicata. Weney, 960 A.2d at 957.
10

Claimant appealed the decision to the Board, which by order entered June 

5, 2020, affirmed WCJ Crilley’s decision on the issue of res judicata. The Board

explained its rationale as follows: 

[T]his issue is one of technical res judicata because the 

parties were aware of the surgery during the [2010] litigation. 

Although Claimant did not actually litigate the specific 

issue of whether his March 2011 surgery caused wage loss 

benefits during those proceedings, the parties clearly 

established that Claimant should have done so. Claimant 

testified, and [WCJ Bloom] found, that Claimant had neck 

surgery in December 2009, and Claimant developed back 

pain during the resulting physical therapy. ‘This led to a 

March 2011 low back surgery.’ (March 27, 2014 Decision 

and Order, Finding of Fact No. 19.) Thus, this testimony 

and finding provides concrete evidence that Claimant 

was aware of this low back injury and its relatedness to 

the work incident during the earlier litigation. As

Claimant was aware of such, he should have litigated the 

injury at that time. Therefore, Claimant’s Reinstatement 

Petition is barred by the doctrine of technical res judicata. 

(R.R. 301a-302a) (emphasis added). 

However, the Board went on to find that the issue of res judicata “is not

[wholly] dispositive of whether Claimant is entitled to a reinstatement of wage loss 

benefits,” as WCJ Crilley had also determined that Claimant had provided the 

information required to cure the suspension of his benefits by submitting information 

related to his 2009 self-employment. (R.R. at 302a.) Because WCJ Crilley did not 

award a reinstatement of benefits on this basis or make further findings of fact or 

conclusions of law in this regard, the Board remanded the matter for WCJ Crilley to 

decide if Claimant is entitled to a reinstatement of benefits as of November 20, 2018. 

The Board explained:
11

Claimant testified that between May 1, 2009 and December 

1, 2009, he earned approximately $1,500. The WCJ found 

Claimant to be credible and persuasive, and she noted that 

Claimant returned the LIBC forms at the hearing on 

November 20, 2018. . . . We determine that we are unable to 

effectuate meaningful appellate review as the WCJ has an 

apparent contradiction in the Decision and Order, and we 

vacate and remand. Although [Employer] argues that the 

parties contested this issue in the previous 2014 litigation, 

Section 311.1(g) clearly gives the right to Claimant to cure 

his mistake by returning the verification form. 77 P.S. § 

631.1(g) (“If the employe fails to return the completed 

verification form within thirty days, the insurer is permitted 

to suspend compensation until the completed verification 

form is returned.”) [(Emphasis added.)] Claimant can cure 

his failure to supply the necessary information at any time, 

and thus, be entitled to a reinstatement of benefits. However, 

the WCJ did not award a reinstatement of benefits, nor did 

the WCJ make further findings of fact or conclusions of law 

in this regard. We thus remand for the WCJ to decide if 

Claimant is entitled to a reinstatement of benefits as of 

November 20, 2018.

(R.R. at 304a-05a) (emphasis in original, citations omitted). The Board affirmed WCJ

Crilley’s decision and order in all other respects.

On remand, by decision and order circulated September 27, 2021, WCJ 

Crilley determined that Claimant returned the necessary information to cure his failure 

to supply Employer with the reporting information, and found he was entitled to a 

reinstatement of benefits as of November 20, 2018. (R.R. 330a-32a.) WCJ Crilley 

specifically credited Claimant’s testimony that he earned $1,500 between May 1, 2009,

and December 1, 2009, and affirmed the previous decision in all other respects. 
12

Claimant and Employer both appealed WCJ Crilley’s decision to the 

Board, which affirmed. This appeal followed.5

II. Claimant’s Appeal

Claimant challenges the Board’s application of technical res judicata to

his Reinstatement Petition and maintains that he is entitled to a reinstatement of his 

benefits as of March 17, 2011, the date he underwent surgery to alleviate his worsening 

work-related condition. (Claimant’s Br., at 11-15.) Claimant contends that the Board’s 

reliance on Weney is misplaced, as Weney addressed a claimant’s effort to amend the

description of his work injury, while this case involves a reinstatement of benefits

because his work-related condition has worsened. (Id. at 13.)

Initially, we observe that technical res judicata and collateral estoppel are 

both encompassed within the parent doctrine of res judicata, which prevents the 

relitigation of claims and issues in subsequent proceedings. Scott v. Delaware Valley 

Regional Planning Commission, 56 A.3d 40, 43 (Pa. Cmwlth. 2012) (en banc). “Under 

the doctrine of technical res judicata, often referred to as claim preclusion, when a final 

judgment on the merits exists, a future suit between the parties on the same cause of 

action is precluded.” Id. In order for technical res judicata to apply there must be 

identity of the (1) thing sued upon or for; (2) cause of action; (3) persons and parties to 

the action; and (4) quality or capacity of the parties suing or sued. Id. Additionally,

“technical res judicata may be applied to bar claims that were actually litigated as well 

as those matters that should have been litigated.” Id. (emphasis added). 

In Weney, the parties revolved the claimant’s first review petition through 

a stipulation where they agreed to amend the NCP to include a left shoulder injury. 

5

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

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

were violated.” Weney, 960 A.2d at 953 n.1. 
13

Weney, 960 A.2d at 951. Shortly after the WCJ adopted the stipulation, the claimant 

filed another review petition to amend the NCP to add neck and cervical spine injuries. 

Id. at 951–53. This Court held that the doctrine of technical res judicata barred the 

claimant’s second review petition, as the subject matter and ultimate issue of both 

proceedings concerned the nature and extent of the claimant’s work injuries and the 

NCP’s description of those injuries. We specifically held that “although Claimant did 

not actually litigate the specific issue of his neck or cervical spine injury during the 

earlier proceedings on his Review Petition I, the record evidence clearly establishes 

that he should have done so.” Id. at 955. We reasoned that the record plainly reflected 

that the claimant was fully aware of the injury to his neck or cervical spine and its 

relatedness to the work incident during the first proceeding. 

Likewise here, both the 2010 litigation before the WCJ, which spanned 

approximately three years, and the current proceeding involve the nature and extent of 

Claimant’s work injury and his entitlement to benefits as a result thereof. While the 

alleged date of onset of Claimant’s worsening condition necessitating the March 2011

back surgery was not adjudicated in the previous litigation, he did testify about that 

surgery at a November 2011 hearing in which he detailed the circumstances leading up 

to the procedure, including that he began to “develop some additional problems with 

his back” during physical therapy for a neck injury. (S.R. at 7b.) Given that Claimant 

was well aware of the worsening of his low back injury during the prior proceeding, 

we agree with the Board that technical res judicata bars his claim of a worsening

condition, as it was a matter that should have been litigated in the earlier proceeding. 

Scott, 56 A.3d at 43. Accordingly, Claimant’s issue lacks merit. 

III. Employer’s Cross-Appeal
14

In its cross-appeal, Employer argues that WCJ Crilley and the Board erred 

in ruling that Claimant is entitled to a reinstatement of benefits as of November 20, 

2018, which is the date Claimant returned the LIBC-760 form to Employer. It argues 

that this decision was a culmination of errors, the first being WCJ Crilley’s 

consideration of Claimant’s 2018 testimony as to his earnings in 2009 and the 2018 

LIBC-760 form dated June 22, 2018. Employer contends that WCJ Crilley mistakenly 

proceeded on the theory that WCJ Bloom had suspended Claimant’s benefits for “the 

failure to return relevant earning information” when, in fact, WCJ Bloom had rejected 

the earning information and Claimant’s testimony as not credible. In other words, WCJ 

Bloom did not believe that Claimant only earned $1,500 between May 1, 2009, and 

December 1, 2009, and found, therefore, Claimant did not provide Employer the 

information needed to determine his earnings. Despite WCJ Bloom’s prior rejection 

of this same testimony and evidence as not credible, WCJ Crilley revisited the issue 

and credited Claimant’s “proof” of earnings during the timeframe of “from May 1, 

2009 to December 1, 2009,” and credited that during this timeframe, he earned “less 

than $1,500.” Employer contends that this was a collateral attack on a prior decision

and was inherently inconsistent with WCJ Bloom’s 2014 decision, which is now law 

of the case. 

Employer argues that the Board perpetuated these errors in its June 5, 

2020 decision, by (1) incorrectly concluding that WCJ Bloom suspended Claimant’s

benefits for non-return of the LIBC-760 form pursuant to Section 311.1 of the Act, 77 

P.S. § 631.1; (2) ruling that Claimant could “cure” his mistake by simply returning the 

LIBC-760 form pursuant to Section 311.1(g) of the Act, 77 P.S. § 631.1(g);

6

and (3) 

6 Pursuant to Section 311.1 of the Act, 77 P.S. § 631.1, when a claimant is receiving 

compensation benefits, the employee is obligated to provide information as to employment or self-

(Footnote continued on next page...)
15

remanding to WCJ Crilley to decide if Claimant was entitled to reinstatement when he 

returned the LIBC-760 form in November 2018 that set forth his earnings in 2009 as 

less than $1,500. 

We must agree with Employer that reinstatement of wage loss benefits 

in this circumstance was in error. Again, this litigation commenced when Claimant 

filed a reinstatement petition, claiming a loss of earning power based on a worsening 

of his condition, which rendered him totally disabled as of September 1, 2016, later 

amended to March 17, 2011. Claimant did not allege that he was entitled to a 

reinstatement as he would now present adequate and credible information as to selfemployment earnings so as to cure his suspension. He never asserted that his 

“suspended” benefits should be “reinstated” due to the return of the LIBC forms. 

Similarly, Claimant never argued that the return of the LIBC-760 or his testimony 

“cured” the prior basis of suspension.

In her June 12, 2019 decision, WCJ Crilley found that the reinstatement 

petition was barred by estoppel. She did not award a reinstatement of benefits. 

Nevertheless, and, although never alleged by Claimant as a basis for reinstatement, the 

Board remanded to WCJ Crilley, noting that under Section 311.1 of the Act, “Claimant 

can cure his [prior] failure [before WCJ Bloom] to supply the necessary information at 

any time, and thus, be entitled to a reinstatement of benefits.” (R.R. at 305a.) 

On remand, WCJ Crilley reinstated Claimant’s benefits. That is, she 

“lifted the suspension” based on Claimant’s completion and return of the LIBC-760 to 

Employer and based on Claimant’s testimony that between May 1, 2009, and 

employment to the employer. Section 311.1(g) of the Act, provides “if the employe fails to return 

the completed verification form within 30 days, the insurer is permitted to suspend compensation 

until the completed verification form is returned.” 77 P.S. § 631.1(g) (emphasis added). 
16

December 1, 2009, he earned approximately $1,500, which she found credible. There

are several problems with the way this unfolded. 

First, Claimant’s benefits were not in a suspension status pursuant to any 

LIBC-762 (“Notice of Suspension for Failure to Return LIBC-760”). 34 Pa. Code § 

123.502(a-e). WCJ Bloom did not suspend Claimant’s benefits on March 27, 2014, 

because Claimant failed to return the LIBC-760 to Employer. The Bloom Decision did 

not reference the failure to return the LIBC-760 or the issuance of the LIBC-762 as the 

basis for the suspension. Rather, WCJ Bloom suspended Claimant’s benefits because 

he did not believe Claimant’s testimony that he only earned $1,500 from May 2009 to 

December 2009. Based on all the evidence, he thought Claimant failed to tell the truth 

about earning only $1,500 during that period, and that in those circumstances where 

Claimant’s earnings cannot be determined, a suspension was justified. Simply 

returning a new LIBC-760 to Employer on November 20, 2018, nine years later, which 

contained the same exact information that WCJ Bloom had previously rejected as not 

credible, did not cure anything. Thus, the provisions of the Act cited by the Board in 

support of the original remand – which require reinstatement upon return of the LIBC760, without further analysis as to the credibility of the averments therein - were 

inapplicable. 

In remanding the matter to WCJ Crilley, the Board also relied on Brehm 

v. Workers’ Compensation Appeal Board (Hygienic Sanitation Co. & Zurich Ins. Co.), 

782 A.2d 1077, 1085 (Pa. Cmwlth. 2001). The case is, however, distinguishable. In 

Brehm, an injured employee’s workers’ compensation benefits were suspended after 

the employer introduced evidence at a hearing on its petition to modify benefits which 

indicated that its investigation had revealed that the employee was earning wages from 

another company during the period he was receiving benefits. The employer also 
17

produced the Internal Revenue Service W-2 forms of the employee from the second 

company. While the employee acknowledged at the hearing that he had received some 

income for the period in question, he refused to provide copies of his tax returns and 

did not answer questions posed to him at the hearing relating to his income for the 

period in question. The WCJ suspended the employee’s benefits for failing to provide 

information regarding his income. This Court upheld the suspension, holding that “a 

claimant who refuses to provide the financial information necessary to make a proper 

determination of his average weekly wage or information that is necessary to ascertain 

whether the claimant is working, may have workers’ compensation benefits suspended 

until such information is provided and such a determination can be made.” Id. at 1085.

Here, contrary to the Board’s assessment, this was not simply a matter of 

the suspension of benefit checks until Claimant returned the proper forms under 

Section 311.1 of the Act. Additionally, as mentioned, Claimant never raised this as a 

basis for seeking reinstatement of benefits. His counsel did not suggest that relief was 

being sought due to the same, nor that this “cured” the suspension. Instead, it was 

noted that the return of the forms at the November 20, 2018 hearing as “a procedural 

thing.” (R.R. at 249a.) Therefore, we must agree with Employer that the Board 

erroneously remanded to WCJ Crilley to decide if Claimant was entitled to 

reinstatement when he “returned the forms” in November 2018. (R.R. at 305a.)

For all of the foregoing reasons, we conclude that Claimant’s issues on 

appeal merit no relief. We reverse the order of the Board, and reinstate WCJ Crilley’s 

June 12, 2019 decision denying Claimant’s reinstatement petition. 

________________________________

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

Kenneth P. Marinak, :

Petitioner :

:

v. : No. 1161 C.D. 2022

: 

City of Pittsburgh (Workers’ :

Compensation Appeal Board), :

Respondent :

City of Pittsburgh, :

Petitioner :

:

 v. : No. 1163 C.D. 2022

:

Kenneth P. Marinack (Workers’ :

Compensation Appeal Board), :

Respondent :

ORDER

AND NOW, this 12th day of July, 2024, the September 27, 2022 

decision of the Workers’ Compensation Appeal Board is hereby REVERSED. The 

June 12, 2019 decision of Workers’ Compensation Judge Anne Crilley denying 

Claimant’s reinstatement petition is reinstated.

________________________________

PATRICIA A. McCULLOUGH, Judge