IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Huber, :

Petitioner :

:

v. : No. 1708 C.D. 2017

: Submitted: May 25, 2018

Workers’ Compensation Appeal :

Board (Wetterau, Inc.), :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE BROBSON FILED: November 27, 2018

Michael Huber (Claimant), pro se, petitions for review from an order 

of the Workers’ Compensation Appeal Board (Board), dated September 28, 2017. 

The Board affirmed the decision of a Workers’ Compensation Judge (WCJ), 

granting Wetterau, Inc.’s (Employer) petition to modify compensation benefits

(Petition). For the reasons set forth herein, we affirm. 

On November 14, 1993, Claimant sustained a work-related injury in the 

nature of a lumbar strain, lumbar radiculopathy, lumbar disc syndrome, and chronic 

back and leg pain, while working for Employer. Employer accepted liability for 

Claimant’s work-related injury pursuant to a Notice of Compensation Payable and 

began paying Claimant workers’ compensation benefits in the amount 
2

of $431.37 per week. On October 22, 2013, Employer filed its Petition, asserting 

that it had obtained medical evidence demonstrating that Claimant was capable of 

returning to work. Employer also asserted that it had referred Claimant to an 

available position within Claimant’s medical restrictions, but Claimant had refused 

the offered position in bad faith. 

In connection with Employer’s Petition, Claimant and Employer 

stipulated: (1) Michael Mitrick, D.O.’s medical opinion and restrictions were 

controlling in this case; (2) Claimant was physically capable of performing the 

offered Customer Service/Surveyor position with New Path Industries; (3) Claimant 

received the Notice of Ability to Return to Work; and (4) Claimant received 4 letters 

from Expeditor, the company that Employer utilized to locate the Customer 

Service/Surveyor position with New Path Industries for Claimant. (Certified Record 

(C.R.), Item No. 22, Notes of Testimony (N.T.), Mar. 4, 2014, at 7-9.) Dr. Mitrick 

opined that Claimant was capable of performing 40 hours per week of light-duty 

work, with restrictions of occasional lifting of 20 pounds, frequent lifting 

of 10 pounds, and occasional bending and stooping. (C.R., Item No. 33, 

Dr. Mitrick’s June 18, 2013 Report at 5.) 

In support of its Petition, Employer presented the testimony of Joseph 

Lacey (Lacey), the owner of Expeditor. (C.R., Item No. 23, N.T., May 6, 2014, 

at 6-7.) Lacey testified that Expeditor specializes in returning people to work in 

sedentary positions. (Id. at 7.) Employer referred this case to Expeditor to locate 

suitable employment for Claimant that was within the work restrictions established 

by Dr. Mitrick. (Id. at 7-10.) Expeditor located a potential full-time Customer 

Service/Surveyor position for Claimant with New Path Industries, P.O. Box 50, 

Gradyville, Pennsylvania. (Id. at 10-11, 26.) Claimant would have been required 
3

to perform the position from his home using a business telephone and wireless 

headset provided to him by New Path Industries/Expeditor. (Id. at 10-11.) The 

position was a funded employer position, whereby Employer’s insurance company 

would reimburse New Path Industries for Claimant’s wages during a training period, 

which could last up to 3 months. (Id. at 22-24.)

Lacey testified further that Expeditor notified Claimant about the 

potential Customer Service/Surveyor position with New Path Industries and 

requested that Claimant complete an employment application and make himself 

available for an interview. (Id. at 12.) In response, Claimant sent Expeditor a list of 

demands that he wanted to have met before he would interview for the position. 

(Id. at 13.) Expeditor met Claimant’s demands, and Claimant ultimately completed 

an application and interviewed for the position. (Id. at 14-16, 21-22.) Based on his 

interview, New Path Industries offered Claimant the Customer Service/Surveyor 

position, but Claimant declined it, stating that his parents would not permit him to 

work from their home. (Id. at 22.) According to Lacey, Claimant took the position 

that someone would need to pay approximately $350,000 for a new residence for 

him and pay his relocation and living expenses. (Id.)

Employer also presented the testimony of Patrick O’Brien (O’Brien), 

who works for the Borough of Laureldale (Borough) as a code enforcement officer, 

a zoning officer, and a building inspector. (Id. at 32-33.) O’Brien testified that the 

Borough’s code would not prohibit Claimant from performing the Customer 

Service/Surveyor position from his home. (Id. at 34, 38.) O’Brien explained that 

Claimant’s home is located in an R-1 residential district, where no-impact 

home-based businesses are permitted by right. (Id. at 36.) O’Brien explained further 

that the Customer Service/Surveyor position that New Path Industries offered to 
4

Claimant meets the Borough’s requirements for a no-impact home-based business. 

(Id. at 36-38.) O’Brien admitted, however, that before Claimant could perform the 

position from his home, O’Brien would have to approve Claimant’s activity as a 

no-impact home-based business. (Id. at 43.) O’Brien indicated that in order to 

obtain his approval, New Path Industries would need to submit a mercantile license 

application to the Borough, and O’Brien would have to perform an inspection of 

Claimant’s home. (Id. at 39, 42-43.)

Employer also presented the deposition testimony of Glenda Honick 

(Honick), who works for Expeditor as an employment consultant. (C.R., 

Item No. 39, Depo. of Glenda Honick at 6-7.) Lacey assigned Claimant’s file to 

Honick to handle all of the day-to-day activities. (Id. at 8, 18.) Honick essentially 

corroborated Lacey’s testimony with some minor additions. (See id. at 7-35.) 

 Employer also presented the deposition testimony of Michael Slezak 

(Slezak), a supervisor with New Path Industries. (C.R., Item No. 40, Depo. of 

Michael Slezak at 5-6.) Slezak testified that, prior to becoming a supervisor with 

New Path Industries in Gradyville, Pennsylvania, he worked for his wife in 

Lockbourne, Ohio. (Id. at 6.) Slezak explained that his wife performed data 

verification under the name of New Path Industries. (Id.) Slezak also explained that, 

in October 2012, he underwent extensive spinal surgery, and his wife closed the

business. (Id. at 6-7.) Sometime thereafter, Slezak received a letter from Claimant, 

who was seeking information on New Path Industries located in Gradyville, 

Pennsylvania. (Id. at 7-8.) In response to Claimant’s letter, Slezak contacted 

Claimant and informed Claimant that his wife’s business was no longer in existence 

and had no relationship with the New Path Industries located in Gradyville, 

Pennsylvania. (Id. at 7-9.) 
5

Slezak testified further that, at some point while he was recovering from 

his spinal surgery, he believed that he was capable of returning to work in a part-time 

capacity. (Id. at 9.) As a result, Slezak submitted his resume to New Path Industries 

in Gradyville, Pennsylvania, because he believed that the company employed 

homebound individuals with physical impairments like him. (Id. at 9-10.) 

Ultimately, New Path Industries offered Slezak a supervisory position, which he 

accepted, and Slezak has been working for New Path Industries since 

September 2013. (Id. at 10-11.) Slezak explained that New Path Industries’ home 

office is located in Gradyville, Pennsylvania, but it conducts business all across the 

United States. (Id. at 12.) Slezak performs his supervisory position from his home 

in Lockbourne, Ohio. (Id.) Slezak explained further that New Path Industries 

conducts data verification for its clients by contacting their customers to verify the 

information contained within their databases. (Id. at 11-12.) New Path Industries 

also employs individuals with physical challenges who have to work from home, 

including individuals who have sustained workers’ compensation injuries. (Id.) 

Slezak also testified that New Path Industries became involved in this 

case when it received a referral from Expeditor about hiring Claimant for a potential 

position. (Id. at 14.) Slezak conducted a phone interview of Claimant on 

September 25, 2013; the purpose of the interview was essentially to assess whether 

Claimant could converse telephonically in an articulate and non-offensive manner. 

(Id. at 14-18.) At the conclusion of the interview, Slezak offered Claimant a 

full-time Customer Service/Surveyor position with New Path Industries. (Id. at 18, 

21-22, 24.) Slezak explained that Claimant would have performed the position from 

his home with a telephone line and equipment provided to him by New Path 

Industries. (Id. at 20-21.) New Path Industries would have been responsible for the 
6

payment of Claimant’s wages, but Employer would have reimbursed New Path 

Industries for such wages during a period of on-the-job training. (Id. at 22-23, 

26-27.) When asked whether Claimant accepted the offered Customer 

Service/Surveyor position, Slezak indicated that Claimant informed him that his 

parents would not let him telecommute from their home, and, therefore, he would 

only accept the position if New Path Industries paid for a new residence and

relocation expenses, which Claimant estimated to be $350,000. (Id. at 24.) 

On cross-examination, Slezak indicated that he assumed that New Path 

Industries had a street address located in Gradyville, Pennsylvania, but that he never 

had a need for it because he communicated through the P.O. Box. (Id. at 26.) Slezak 

also did not have a telephone number for New Path Industries because he 

communicated with New Path Industries by email. (Id. at 29, 32.) 

In opposition to Employer’s Petition, Claimant testified at the hearing 

held on July 17, 2014. Claimant testified that he resides in the Borough at his 

parent’s home. (C.R., Item No. 24, N.T., July 17, 2014, at 29-30.) Claimant 

explained that he did not want to conduct a business out of his parents’ home because 

he respected his parents and their concerns. (Id. at 31-32.) Claimant, nevertheless,

believed that he acted in good faith with respect to the offered Customer 

Service/Surveyor position with New Path Industries. (Id. at 32, 46.) Claimant 

testified that he attempted to locate a physical address for New Path Industries and 

discovered: (1) the only New Path Industries registered with the Pennsylvania 

Department of State is located in Lockbourne, Ohio; (2) the physical address on file 

with the post office for New Path Industries and its Gradyville, Pennsylvania, P.O. 

Box was located in Newtown Square, Pennsylvania; and (3) the building located at 

the Newtown Square, Pennsylvania, address was locked and vacant at 2:30 p.m., on 
7

September 6, 2013. (Id. at 32-37.) Claimant testified further that he interviewed 

with Slezak by telephone on September 25, 2013, and, at that time, Claimant

informed Slezak that his parents would not permit him to conduct business out of 

their home. (Id. at 41-42.) Claimant also testified that he returned to the Newtown 

Square, Pennsylvania, address on November 1, 2013, and, again, could not locate 

New Path Industries. (Id. at 46.) Claimant informed Expeditor and Slezak that he 

could not physically locate New Path Industries, and neither of them could provide 

him with any information. (Id.) 

On cross-examination, Claimant admitted that he has worked for his 

father’s business as a salesman since 1981 and is responsible for accompanying his 

father to auctions so that he can drive the vehicles that his father purchases. 

(Id. at 48-49.) Claimant also admitted that he obtained a vehicle salesperson license 

from the Pennsylvania Department of State and is occasionally responsible for 

buying and selling vehicles for his father, but he does not earn any money from his 

father in connection therewith. (Id. at 49-50.) 

Claimant also presented the testimony of James Huber, his father. 

(Id. at 12.) Claimant’s father testified that he and his wife own a home in the 

Borough, and that he, his wife, and Claimant currently reside in that home. 

(Id. at 13.) Claimant’s father, who owns Huber’s Auto Towing Service located in 

Reading, Pennsylvania, does not perform any business out of his home, and he has 

concerns about Claimant working from his home. (Id. at 14-15.) Claimant’s father 

explained: (1) he was not willing to complete or sign any of the applications and/or 

forms that the Borough or the Commonwealth of Pennsylvania would require in 

connection with a business conducted from his home; (2) his wife’s health is not the 

best and her situation would be aggravated if Claimant was on the phone at their 
8

home for 8 to 10 hours per day; (3) the Borough would require inspections and code 

compliance for any business that would be conducted from his home; (4) he did not 

want to create conflict with his neighbors by adding a business to the neighborhood; 

and (5) his insurance premium would increase substantially. (Id. at 15-22.) 

Claimant’s father admitted that Claimant is employed by Huber’s Auto Towing 

Service as a salesman and is responsible for signing vehicle titles and other 

paperwork. (Id. at 24-25.) Claimant’s father indicated, however, that, even though 

Claimant maintains an active vehicle salesperson license with the Pennsylvania 

Department of State, Claimant is not paid for the work that he performs for Huber’s 

Auto Towing Service. (Id. at 27-28.) Claimant’s father also admitted that he 

forwards Huber’s Auto Towing Service’s phone calls to his personal cell phone after 

hours and that he answers phone calls for Huber’s Auto Towing Service while he is 

at home. (Id. at 25-26.) 

By decision and order dated December 22, 2014, the WCJ granted 

Employer’s Petition and modified Claimant’s workers’ compensation benefits 

to $143.79 per week, effective September 25, 2013.

1

 In so doing, the WCJ noted 

that, “given the stipulations between the parties, the sole issue before [him was]

whether Claimant acted in bad faith when he refused the Customer Service/Surveyor 

position with New Path Industries.” (WCJ’s Decision, Dec. 22, 2014, at 6.) In 

reaching his decision on this issue, the WCJ credited the testimony of O’Brien, 

Lacey, Honick, and Slezak. (Id. at 4-6.) The WCJ also credited the testimony of 

Claimant and Claimant’s father with respect to the reasons for Claimant’s refusal to 

 

1 On January 8, 2015, the WCJ issued an amended/corrected decision, whereby the WCJ 

acknowledged a mathematical error in his December 22, 2014 decision and corrected Claimant’s 

partial disability rate to $191.37 per week. The WCJ affirmed his December 22, 2014 decision in 

all other respects.
9

accept the Customer Service/Surveyor position with New Path Industries but noted 

that the extent to which such reasons were valid was a question of law. (Id. at 5.) 

The WCJ found that the Customer Service/Surveyor position with New Path 

Industries was a wage paying employee/employer job and not a business. (Id. at 6.) 

The WCJ also found that “Claimant’s investigation and efforts to prove New Path 

Industries [did] not exist [was] irrelevant give [sic] the stipulation that Claimant 

received a job offer that he is physically capable to perform.” (Id.) Based on those 

credibility determinations and findings of fact, the WCJ concluded that Claimant 

acted “in bad faith when he refused the Customer Service/Surveyor position with 

New Path Industries.” (Id.) The WCJ reasoned that: (1) the relevant evidence 

established that the local municipality would permit Claimant to perform the 

Customer Service/Surveyor position in the residential zone in which he resides; and 

(2) “[t]he fact that Claimant’s parents will not permit [Claimant] to work from home 

is irrelevant and not a valid reason to negate the fact that the job was within 

Claimant’s physical capabilities and offered to him.” (Id. at 6-7.)

Claimant appealed the WCJ’s decision to the Board. By opinion and 

order dated April 11, 2016, the Board opined that the WCJ incorrectly determined

that “the ‘sole issue’ before him was whether Claimant acted in bad faith when he 

refused the [Customer Service/Surveyor] position with New Path Industries.” 

(Board’s Decision, Apr. 11, 2016, at 11.) The Board noted that, “before getting to 

that question, the WCJ had to decide the issue of whether the offered position was 

available to Claimant.” (Id.) The Board also noted that, while there was no dispute 

that the offered position was “physically suitable” for Claimant, “there are other 

considerations besides a claimant’s medical limitations or abilities” that must be 

considered when determining whether an offered position is available. (Id.) As a 
10

result, the Board remanded the matter to the WCJ to consider whether the offered 

position was available to Claimant based upon the totality of the circumstances. 

On remand, the WCJ again granted Employer’s Petition. In so doing, 

the WCJ reasoned as follows: 

In reviewing the [r]ecord again, the totality of the 

circumstances and the clear evidence of record shows 

Claimant put forth a valiant effort to find reasons not to 

accept the offered job that would simply require Claimant 

to work from him [sic] home placing phone calls and 

collecting data. Claimant spent quite a bit of effort to 

prove New Path Industries does not exist. Then Claimant 

asserted his father would not permit him to work from 

within his home. 

This [WCJ] understands Claimant resides in his 

father’s home for economic reasons. Furthermore, 

Claimant’s father certainly can determine what lawful 

activities take place within his home. If he deems his 

home a place where a business should not operate he 

certainly cannot be forced to do so. However, such 

reasons should not bleed over to require a workers’ 

compensation carrier or employer to continue to pay 

workers’ compensation benefits[.] The job offered 

required no equipment (other than a phone line that 

[Employer] would supply), there is no evidence of any 

factors to prevent Claimant from working at home other 

than Claimant’s father’s simple refusal to allow 

[Claimant] to earn a living from within his home. 

(WCJ’s Decision, Nov. 15, 2016, at 4.) The WCJ also incorporated his findings of 

fact, credibility determinations, and conclusions of law from his December 22, 2014 

decision, including his conclusion that Claimant acted “in bad faith when he refused 

the Customer Service/Surveyor position with New Path Industries.” (WCJ’s 

Decision, Nov. 15, 2016, at 3, 5; WCJ’s Decision, Dec. 22, 2014, at 6.) Claimant 

appealed to the Board, which affirmed the WCJ’s decision. Claimant then petitioned 

this Court for review. 
11

On appeal,2 Claimant appears to argue that the WCJ’s decision is not 

supported by substantial evidence. More specifically, Claimant argues that he 

presented evidence to establish that New Path Industries does not exist, and, 

therefore, the offered position could not have been available to him, and he could 

not have refused the offered position in bad faith.

3

 In response, Employer argues 

that the totality of the circumstances establishes that Claimant refused the offered 

position in bad faith, and, therefore, the WCJ properly granted Employer’s Petition.

4

At the outset, we note that it is well settled that the WCJ is the sole 

arbiter of credibility and evidentiary weight. Womack v. Workers’ Comp. Appeal 

Bd. (Sch. Dist. of Phila.), 83 A.3d 1139, 1154 (Pa. Cmwlth.), appeal denied, 

94 A.3d 1011 (Pa. 2014). In determining whether the WCJ’s findings are supported 

by substantial evidence, we may not reweigh the evidence or the credibility of the 

witnesses but must simply determine whether the WCJ’s findings have the requisite 

measure of support in the record as a whole. Elk Mountain Ski Resort, Inc. v. 

Workers’ Comp. Appeal Bd. (Tietz, deceased), 114 A.3d 27, 32 n.5 

(Pa. Cmwlth. 2015). It is irrelevant whether there is evidence to support a contrary 

 

2 This Court’s standard of review is limited to determining whether constitutional rights 

were violated, whether an error of law was committed, or whether necessary findings of fact are 

supported by substantial evidence. Section 704 of the Administrative Agency 

Law, 2 Pa. C.S. § 704.

3 Based on our review of Claimant’s brief, it does not appear that Claimant has developed 

any argument relative to his residential situation and his alleged inability to accept the offered 

position due to his father’s refusal to permit him to work from the family home. Rather, Claimant’s 

entire argument is focused on the alleged nonexistence of New Path Industries. 

4 Employer appears to have repeated all of the arguments that it presented at the various 

stages of the proceedings below without any attempt to refine its arguments to the issues presented 

by Claimant on appeal. As many of those issues have not been raised by Claimant on appeal—

i.e., the lack of a vocational interview, the fact that the offered position was a funded employment 

position, and the effect of local codes and regulations on Claimant’s ability to work from the family 

home—we will not address them any further in this opinion. 
12

finding; if substantial evidence supports the WCJ’s necessary findings, we may not 

disturb those findings on appeal. Williams v. Workers’ Comp. Appeal Bd. 

(USX Corp.-Fairless Works), 862 A.2d 137, 143-44 (Pa. Cmwlth. 2004).

An employer seeking a suspension or modification of benefits on the 

basis that the claimant has recovered some or all of his ability to work, must produce: 

(1) credible medical evidence establishing that the claimant’s physical condition has 

changed; and (2) evidence that the employer referred the claimant to a then-available 

job that the claimant is capable of performing based on his medical clearance. 

Kachinski v. Workmen’s Comp. Appeal Bd. (Vepco Constr. Co.), 532 A.2d 374, 380 

(Pa. 1987). The burden then shifts to the claimant to demonstrate that he followed 

through on the job referral in good faith. Id. In the event that the referral does not 

result in a job, the claimant’s benefits should continue. Id.

Here, in an effort to demonstrate that the offered position was not 

available to him and that he did not refuse the offered position in bad faith, Claimant 

attempts to cast doubt on the existence of New Path Industries. Although the WCJ 

did not make a specific finding that New Path Industries is a valid and existing 

business entity, such a finding is implied from the WCJ’s decision. In other words,

the WCJ could not have concluded that the offered position with New Path Industries 

was available to Claimant or that Claimant refused such position in bad faith without 

impliedly finding that New Path Industries is a valid and existing business entity. 

Lacey and Honick testified that Expeditor located a Customer Service/Surveyor 

position for Claimant with New Path Industries, a business located in Gradyville, 

Pennsylvania, that was within Claimant’s restrictions as established by Dr. Mitrick. 

Slezak testified that he is employed by New Path Industries as a supervisor and that, 

after performing a telephone interview of Claimant, he offered Claimant a Customer 
13

Service/Surveyor position with New Path Industries. In addition, the parties 

stipulated that Claimant was physically capable of performing the offered Customer 

Service/Surveyor position with New Path Industries. This testimony and evidence 

constitutes substantial evidence to support the WCJ’s implied finding that New Path 

Industries is a valid and existing business entity. It is irrelevant that Claimant 

presented evidence that could support a contrary finding. See Williams, 

862 A.2d at 143-44. For these reasons, we cannot conclude that the WCJ’s decision 

is not supported by substantial evidence. 

Accordingly, we affirm the Board’s order. 

P. KEVIN BROBSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Huber, :

Petitioner :

:

v. : No. 1708 C.D. 2017

:

Workers’ Compensation Appeal :

Board (Wetterau, Inc.), :

Respondent :

O R D E R

AND NOW, this 27th day of November, 2018, the order of the 

Workers’ Compensation Appeal Board is hereby AFFIRMED. 

P. KEVIN BROBSON, Judge