IN THE COMMONWEALTH COURT OF PENNSYLVANIA

J. Conley & Sons Plumbing, :

Petitioner :

:

v. : No. 883 and 884 C.D. 2016

: SUBMITTED: March 31, 2017

Workers' Compensation :

Appeal Board (Gainer), :

Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE LEADBETTER FILED: September 19, 2017

J. Conley & Sons Plumbing (Employer) petitions for review of two 

orders of the Workers’ Compensation Appeal Board (Board) involving Jesse 

Gainer (Claimant).

1

In No. A14-0353, the Board: (1) affirmed as modified the 

grant of the claim petition, excluding an inguinal hernia and herniated lumbar disc 

from the work injury due to the lack of an unequivocal opinion as to those 

conditions; (2) affirmed the penalty award based on Employer’s failure to issue a 

timely Bureau document; and (3) affirmed the unreasonable contest determination 

and the award of counsel fees because Employer’s medical witness did not 

disagree that Claimant sustained a work injury but Employer continued to contest 

both the nature of the work injury and the entire claim petition. In No. A15-0369, 

 

1

In August 2016, this Court granted Employer’s unopposed applications to consolidate 

these matters.
2

the Board: (1) affirmed the grant of the modification petition based on Claimant’s 

two periods of post-injury employment, as well as the WCJ’s order awarding a 

credit to Employer for the overpayment of benefits during those periods, payable at 

$5 per week; (2) affirmed the award of ongoing benefits after the last period of 

employment; (3) affirmed the denial of the suspension petition;2(4) affirmed the 

grant of Claimant’s penalty petition; and (5) affirmed as modified the WCJ’s 

award of costs. On appeal, Employer is not challenging the adjudication of the 

nature of Claimant’s work injury, but rather disputes the alleged “failure to afford 

it relief on the basis of claimant’s surreptitious post-work-injury return to the work 

force with various employers and failure to provide the [WCJ] with accurate 

information regarding his work history and his medical history.”3 For the reasons 

set forth below, we affirm the Board’s orders.

In January 2013, Claimant sustained a work-related injury after lifting 

a sewer machine in his capacity as a plumber’s apprentice helper. In February 

2013, he filed: (1) a claim petition alleging an injury to his groin area and seeking 

total disability benefits and payment of medical bills and counsel fees; and (2) a 

penalty petition, alleging that Employer failed to issue a timely Bureau document. 

At an April 2013 hearing, Claimant testified that he could not return to his preinjury job, that he had not been offered light-duty work, and that he had not 

received any income since his work injury. April 15, 2013, Hearing, Notes of 

Testimony at 18, 19, and 28; Reproduced Record (R.R.) at 26a, 27a, and 36a. In 

an April 2014 decision, the WCJ: (1) granted the claim petition, determining that 

 

2

Employer does not dispute the denial of the suspension petition, noting that the earnings 

that were subsequently identified and documented warranted only a modification of benefits.

3

Employer’s June 9, 2017, Application for Relief (clarification), ¶ 7.
3

Claimant was totally disabled and entitled to weekly compensation of $414 into the 

indefinite future; (2) granted the penalty petition for failure to issue any bureau 

documents accepting or denying the claim; and (3) determined that Employer’s 

contest was unreasonable. Employer appealed in April of 2014, and sought 

supersedeas, which was denied in May.

Shortly thereafter, also in May 2014, Employer filed a modification 

petition alleging that it learned after the above-described proceedings that Claimant

had returned to work after his work injury. In March 2015, the WCJ granted the 

modification petition from August 3 to 26, 2013, after which total disability

benefits were to be reinstated, and from April 4 to June 13, 2014, with the same 

reinstatement. In ascertaining the wages and time periods for his positions as a 

dishwasher for the Rose Tree Inn and a technician for Jiffy Lube, the WCJ relied 

on employment records that Employer procured via subpoenas. October 1, 2014, 

Hearing, Employer’s Exhibits D-2 (Rose Tree Inn) and D-3 (Jiffy Lube); R.R. at

187-203a and 204-41a.

In addition, the WCJ also cited Claimant’s affidavit indicating that he 

began working at the Rose Tree Inn at $8 per hour on April 21, 2014, because he 

had not yet received any benefits as of June 2, 2014, despite an April 2 award 

granting his claim. In support of his procurement of what he characterized as the 

lightest possible job that he could find to feed his family, Claimant referenced his 

wife’s cancer, the household’s lack of income, and no benefits “despite the 

insurance companies [sic] attorney’s LIE to the court.” July 9, 2014, Hearing, 

Exhibit C-12 (Claimant’s June 9, 2014, Affidavit); R.R. at 128a.

As the Board subsequently clarified, the WCJ erroneously found that 

Claimant’s affidavit encompassed both employers whereas it addressed only the 
4

Rose Tree Inn. In addition, notwithstanding his stint with Jiffy Lube, Claimant

testified at that July 2014 hearing that, other than the Rose Tree Inn, he did not 

work anywhere else after his work injury.4 Id., N.T. at 18; R.R. at 121a. 

Nonetheless, the WCJ made the following fact-finding:

22. This Judge has personally observed Claimant’s

testimony and finds that his composure and demeanor 

supports his veracity. Claimant is credible that he was in 

dire financial straits when he testified for this Judge and 

did not have enough money to pay for his wife’s cancer 

treatment. This Judge accepts his testimony and his 

Affidavit as to his work at Rose Tree Inn and Jiffy Lube. 

This Judge accepts that the work Claimant performed at

[both employers] was lighter duty work.

WCJ’s March 11, 2015, Decision, Finding of Fact (F.F.) No. 22. At all events,

based on the wages from those two employers, the WCJ awarded a $4430.62 credit 

to Employer with a weekly credit of $5 until recoupment.

In her March 2015 decision, the WCJ also considered Claimant’s 

penalty petition wherein he alleged that Employer violated the Workers’ 

Compensation Act5by (1) advising the WCJ in the claim petition proceedings that 

his claim had been accepted but then filing an appeal from the award of benefits; 

and (2) alleging that payment would be made when none was rendered. In 

 

4 Regarding credibility, the Board observed:

In [his] brief, Claimant states that obviously he did work at Jiffy 

Lube in 2013 and whether his denial of working anywhere else 

other than Rose Tree Inn “was a mistake, a miscommunication or a 

lie was for the Judge to decide.” While we may question 

Claimant’s veracity, the fact remains that questions of credibility 

are for the fact-finder and the WCJ chose to accept Claimant’s 

testimony.

Board’s May 4, 2016, Opinion in No. A15-0369 at 10 n.5.

5 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
5

granting the penalty petition, the WCJ entered an order: (1) awarding a five 

percent penalty on the amount due from January 10, 2013, to June 7, 2014 (when 

Claimant received his first payment of benefits); and (2) directing that Employer 

pay Claimant’s counsel an attorney’s fee award on the penalty in the amount of 

twenty percent, to be paid directly to Claimant’s counsel with the balance of the

penalty to be paid directly to Claimant; and (3) directing Employer to pay 

Claimant’s counsel costs of litigation in the amount of $502.45.6

In May 2015, the Board affirmed the WCJ’s initial April 2014 

decision as modified, to exclude the inguinal hernia and herniated lumbar disc

from the injury description. In June 2015, Employer sought Board rehearing based 

on after-discovered evidence that Claimant had surreptitiously returned to work by 

March 2014 for at least two employers (essentially the same basis as that of its 

modification/suspension petition). The Board granted Employer’s rehearing 

petition, but subsequently reaffirmed its previous decision and stated, in relevant 

part, as follows:

[A] large portion of [Employer’s] argument for remand 

goes to the question of whether Claimant had 

employment after his January 10, 2013 work injury and 

whether he is entitled to ongoing total disability benefits. 

However, [Employer] acknowledges that it filed a 

Modification/Suspension Petition to address this question 

and that on March 11, 2015, the WCJ issued a ruling on 

its request for relief, granting it in part. [Employer] has 

appealed several aspects of that determination. Its 

challenges to that Decision and Order are addressed in a 

separate Opinion and Order, docketed at A15-0369. 

Thus, its concerns will not escape review. Given the 

aforementioned, we find nothing constituting a sufficient 

 

6

The Board subsequently reduced the litigation cost reimbursement to Claimant by $45. 

Board’s May 4, 2016, Opinion in No. A15-0369 at 13.
6

basis for disturbing our May 15, 2015 Opinion and 

Order.

Board’s May 4, 2016, Opinion in No. A14-0353 at 6-7.

In a separate Board decision issued on the same date, it considered, 

inter alia, the WCJ’s decision to grant Employer’s modification petition and 

Claimant’s penalty petition. In affirming the grant of the modification petition, the 

Board acknowledged “the error in the WCJ’s finding that Claimant’s testimony 

and Affidavit spoke to his employment at Jiffy Lube when they clearly did not” 

and the fact that “[t]he WCJ’s findings to the effect that Claimant’s evidence 

recognized this employment and established the job duties are not supported.” 

Board’s May 4, 2016, Opinion in No. A15-0369 at 10. Nonetheless, it relied on 

the fact that Claimant ultimately did not dispute that he was employed at Jiffy 

Lube for the period at issue and that he earned wages thereby warranting a credit to 

Employer. Further, the Board approved stretching out the payment of that credit at 

$5 per week, noting the WCJ’s credibility determination as to Claimant’s 

unfortunate situation and concluding that she had the authority to award the credit 

with a weekly deduction. Id. at 12.

In affirming the grant of the penalty petition, the Board opined that 

“the 5% award does not evidence a manifestly unreasonable award or any ill will 

on the WCJ’s part, but more so a recognition of [Employer’s] failure to comply 

with the Act.” Id. In support, the Board cited Allegis Group v. Workers’ 

Compensation Appeal Board (Coughenaur), 7 A.3d 325, 327 (Pa. Cmwlth. 2010), 

holding that an abuse of discretion occurs when a WCJ’s judgment is manifestly 

unreasonable, the law is not applied, or the record shows partiality, bias or ill will. 

Employer’s timely petitions for review of the Board’s orders followed.
7

Mindful that Employer is not challenging the adjudication of the 

nature of Claimant’s work injury, we consider the following cognizable arguments: 

(1) that the WCJ erred in disregarding the notations in the Jiffy Lube employment 

record indicating an alleged discharge for misconduct and thus awarding total 

rather than partial disability benefits going forward after he was terminated from 

that job; (2) that the Board should have ordered a new hearing because the WCJ 

committed various evidentiary and fact-finding errors; (3) that the WCJ erred in 

computation of a $4430.62 credit to Employer, and that it was an abuse of 

discretion to order that the credit be recouped at $5 per week; and (4) that the 

Board erred in refusing to rescind or reduce the imposition of penalties and award 

of counsel fees. We turn to the first issue.

It is well established that when a claimant returns to light-duty 

employment at a wage loss and is discharged for willful misconduct, he is entitled 

only to continuing partial disability benefits. Howze v. Workmen’s Comp. Appeal 

Bd. (Gen. Elec. Co.), 714 A.2d 1140, 1142 (Pa. Cmwlth. 1998). Specifically, there 

is a presumption that his disability from the work injury continues and he is 

entitled to continue to receive partial disability benefits, calculated according to the 

wages he would have earned but for his misconduct. Id. The employer, however, 

bears the burden of establishing that a claimant’s loss of earnings is the result of a 

post-injury involuntary discharge. Virgo v. Workers’ Comp. Appeal Bd. (County of 

Lehigh-Cedarbrook), 890 A.2d 13, 19 (Pa. Cmwlth. 2005).

In the present case, the record reflects that Employer received the Jiffy 

Lube record in July 20147and that the WCJ accepted that record into evidence at 

 

7 October 1, 2014, Hearing, Employer’s Exhibit D-3 (Jiffy Lube record); R.R. at 204a.
8

the final hearing in October 2014.8 In her decision, the WCJ relied on the Jiffy 

Lube record to establish wages and employment duration but disregarded the 

notations regarding an alleged discharge for misconduct. In determining that the 

WCJ did not err in disregarding these notations, the Board relied on the Walker 

Rule, providing that, even where otherwise inadmissible hearsay evidence is 

admitted without objection, it may only support a finding if corroborated by 

competent evidence of record. Walker v. Unemployment Comp. Bd. of Review, 367 

A.2d 366, 370 (Pa. Cmwlth. 1976).

 Employer disputes the Board’s analysis, noting that it offered an 

authenticating deposition affidavit from Jiffy Lube and that Section 131.68 of the 

Special Rules of Administrative Practice and Procedure before WCJs provides: 

“The deposition affidavit and the records or items authenticated thereby [such as 

employment records] will be admissible into evidence in the proceeding before the 

judge in the same manner as if the deponent appeared before the judge and testified 

as to the authenticity of the records or items.” 34 Pa. Code § 131.68(g). Employer 

then argues that the records were admissible under what is commonly called the 

business records exception to the hearsay rule. This argument is correct to the 

extent that the records were properly authenticated, but only partially correct 

regarding hearsay. While the records of regularly conducted business activity fall 

within an exception to the hearsay rule,9not every notation in a business record 

qualifies.

 

8

The record reflects that only counsel for Employer was present at that hearing. Noting that 

counsel for Claimant was running late, the WCJ stated that “we’re just going to do the evidence.” 

October 1, 2014, Hearing, N.T. at 3. At that time, Employer’s exhibits were marked and 

received into evidence.

9

See Pa. R.E. 803(6).
9

Here, the routine entries such as Claimant’s dates of employment, 

wages paid, etc., are fully admissible and were properly relied upon by the WCJ. 

The evidence about which Employer complains, however, does not fall within that 

exception. Even if we believed that a notation saying Claimant admitted taking 

cash was made in the regular course of business, and thus could be admitted to 

show Employer’s action and motive for the termination—an issue which we need 

not here decide—it cannot be admitted to prove as truth that Claimant actually 

committed the theft or made such a statement to someone who did not testify, was 

not subject to cross-examination, and was not even identified as to his position or 

authority. That would go far beyond the underlying principle of the business 

record exception: that routine record entries made in the regular course of business

by a person with knowledge, absent some contraindication, are inherently reliable.

See Leonard Packel & Anne Poulin, Pennsylvania Evidence § 803(6)-1 (4th ed. 

2013). Employer obtained the records three months before the final hearing and 

plainly had the opportunity to subpoena the person who made the note, or to call 

Claimant as of cross-examination to ask about Claimant’s purported admission. 

Instead Employer chose to rely on the paper record, avoiding the scrutiny attendant 

to the cross-examination or explanation which might accompany such testimony. 

However, this paper evidence did not fall within the exception to the hearsay rule 

and, while properly admitted without objection, could not be the sole basis of a 

finding that Claimant’s loss of employment was due to his own misconduct. Thus 

we agree with the Board that based on the Walker Rule the WCJ did not err in 

disregarding the notations.

10

 

10 In addition, the rule does not supplant the WCJ’s role as the ultimate arbiter of evidence 

where she has exclusive province over questions of evidentiary weight and may accept, reject 

(Footnote continued on next page...)
10

Employer’s next argument is basically a challenge to the WCJ’s 

credibility determinations. Essentially, it argues that Claimant failed to disclose, 

and later lied about, his return to work after his injury, and that if the WCJ had 

known about this in the beginning her findings might have been different. It 

argues that it did not discover Claimant’s return to work or certain medical records 

until after the claim petition was decided. Yet, as the Board noted, most of this 

evidence could have been discovered with due diligence before the WCJ issued her 

first opinion. Moreover, most of this evidence was presented to the WCJ in the 

modification/suspension proceedings and it did not change her underlying 

impression of Claimant’s credibility. While we, like the Board, might have viewed 

the evidence differently, we cannot say that the WCJ’s credibility determinations 

were capricious. Finally, as the Board also determined, the surveillance evidence 

of Claimant working at Rose Tree Inn, which was not admitted, and the discredited 

testimony of Employer’s witness concerning the Jiffy Lube job were of no moment 

since the WCJ accepted other proof of Claimant’s work for both of these 

subsequent employers.

Next, Employer claims that the WCJ erred in calculating the credit to 

which it was entitled as a result of Claimant’s undisclosed return to the work force 

in August of 2013 and April through June of 2014. While we agree with Employer 

that the credit should have been based on the difference between the total disability 

benefits actually (albeit belatedly) paid and the partial disability benefits to which 

Claimant was entitled, rather than on the wages he was paid, Employer’s claim that 

_____________________________

(continued...)

and/or disregard portions of an employment record. See Griffiths v. Workers’ Comp. Appeal Bd. 

(Red Lobster), 760 A.2d 72, 76 (Pa. Cmwlth. 2000). 
11

the credit was deficient is based on the false premise that Claimant was entitled to 

only partial benefits going forward after the first date he went back to work. 

Properly computing the credit based on the nine weeks that Claimant was actually 

employed would result in a credit less than that allowed by the WCJ. Employer’s 

more fully-developed complaint lies with the WCJ’s order that the credit be paid 

over a long period at the rate of $5 per week. However, as the Board noted, the 

WCJ properly took into account Claimant’s financial difficulties, including his 

inability to pay his wife’s medical bills, and the fact that Employer was not paying 

disability benefits at the time, even though it was undisputed that Claimant had

some form of work injury. It is clear that the WCJ weighed Employer’s violations 

of the Act in rendering her decision. The Board concluded that the WCJ “with the 

power under the Act to determine whether a party has been erroneously overpaid, 

had the authority to resolve this situation in this manner [$4430.62 with weekly 

deduction of $5].” Board’s May 4, 2016, Opinion in No. A15-0369 at 12. In 

support, the Board cited Fahringer, McCarty & Grey, Inc. v. Workmen’s

Compensation Appeal Board (Green), 529 A.2d 56, 59 (Pa. Cmwlth. 1987), where 

we sympathized with the claimant’s difficulty in making restitution of monies 

erroneously overpaid for six years due to miscalculation of his average weekly 

wage and directed the Board to order a sum deducted from each of his benefit 

checks in an amount the Board believed would be just under the circumstances and 

manageable for the claimant. See also City of Pittsburgh v. Workers’ Comp. 

Appeal Bd. (Wright), 90 A.3d 801, 812 n.11 (Pa. Cmwlth. 2014) (where a claimant 

was receiving both a pension and workers’ compensation benefits, the terms of a 

proposed recoupment of overpaid workers’ compensation benefits could be 

modified consistent with the humanitarian purposes of the Act where it would ease 
12

his financial hardship). Accordingly, mindful of the humanitarian purposes of the 

Act,11 we decline to disturb the WCJ’s order as to the manner of repaying the 

overpayment.

Employer next maintains that the Board erred in failing to rescind or 

reduce the impositions of penalties and award of counsel fees. Employer’s 

position is without merit. The record is permeated with instances where both 

parties had unclean hands. Unfortunately for Employer, the WCJ made credibility 

determinations in Claimant’s favor and Employer’s violations of the Act were 

apparent from the record. Accordingly, we agree with the Board that the award 

does not constitute a manifestly unreasonable award or establish any ill will on the 

WCJ’s part.

For these reasons, we affirm the Board’s orders.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

Senior Judge

 

11

 Vandervort v. Workers’ Comp. Appeal Bd. (City of Phila.), 899 A.2d 414, 419 (Pa. 

Cmwlth. 2006).
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

J. Conley & Sons Plumbing, :

Petitioner :

:

v. : No. 883 and 884 C.D. 2016

:

Workers' Compensation :

Appeal Board (Gainer), :

Respondent :

O R D E R

AND NOW, this 19th day of September, 2017, the orders of the 

Workers’ Compensation Appeal Board are hereby AFFIRMED.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

Senior Judge