IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Richard Koway, :

:

Petitioner :

:

 v. : No. 216 C.D. 2019

: Submitted: May 24, 2019

Workers' Compensation Appeal :

Board (MV Transportation), :

:

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: September 25, 2019

Richard Koway (Claimant) petitions for review of the January 29, 

2019 order of the Workers’ Compensation Appeal Board (Board), which affirmed 

the decision of a workers’ compensation judge (WCJ) denying his reinstatement 

petition. We affirm.

Claimant sustained a work-related injury on May 29, 2012. On 

January 22, 2013, MV Transportation (Employer) issued a notice of temporary 

compensation payable, which converted to a notice of compensation payable

(NCP), acknowledging an injury to Claimant’s right foot and right shoulder.

Claimant’s indemnity benefits were suspended based on his July 29, 2013 return to 

work with no wage loss. 

On July 27, 2017, Claimant filed a reinstatement petition alleging that 

as of July 19, 2017, his condition worsened, and he suffered a decrease in his 
2

earning power as a result of the injury.

1

 Employer denied the allegations and the 

matter was assigned to the WCJ.

In support of his reinstatement petition, Claimant testified before the 

WCJ on August 23, 2017, and November 15, 2017. Claimant stated that before his 

injury, he worked in maintenance, which involved repairing vehicles, engines, and 

transmissions, and lifting heavy items, such as tire rims that weighed over 80 

pounds. Reproduced Record (R.R.) at 14a. Claimant said that he sustained an 

injury on May 29, 2012, when he slipped on oil, jerked his body, slammed his left 

foot down, and twisted his back and neck. R.R. at 15a. Claimant said that he went 

to Employer’s doctors for treatment; he started physical therapy, found a torn 

tendon in his left foot, and underwent surgery for his right shoulder. He was out of 

work for approximately six months following surgery and subsequently returned to 

work in a light-duty position. R.R. at 16a-18a. After six months of light duty, 

Claimant was transferred to a maintenance supervisor position, which he held for 

one year before being transferred to work as a utility supervisor. R.R. at 19a-20a. 

Claimant testified that he began treating with a Dr. Glaser in 

November 2016. Dr. Glaser sent him to therapy and eventually recommended 

shoulder replacement surgery. Upon receiving this recommendation, Claimant

retained an attorney. Claimant testified that on June 21, 2017, he told his workers’ 

compensation caseworker that he had hired an attorney, and he was fired that same 

night. R.R. at 21a-24a. 

Claimant acknowledged that Employer cited insubordination and 

complaints against him as reasons for his discharge. He testified that James Pate, 

 

1 Claimant subsequently amended the reinstatement date to either June 21, 2017, the date 

of his discharge, or July 3, 2017, the date his medical provider said he could not return to work.
3

his supervisor,

2 and Dean Carbanaro, another supervisor, met with him and told 

him to perform his duties in a different manner. Claimant stated that he felt 

physically capable of doing his supervisory job according to Mr. Pate’s and Mr. 

Carbanaro’s instructions, as long as he had adequate personnel. However, 

Claimant asserted that he did not comply with their directives because he had an 

insufficient number of motivated or qualified employees. Claimant explained that 

he continued to perform his duties in the usual manner because he believed that he 

could not do the job properly if he followed the new directives and he would have

to stay late to finish his work. Claimant admitted that he fueled, ran, and cleaned 

buses, despite being specifically directed not to do so. R.R. at 25a-27a, 171a, 

173a, 181a, 186a.

At the time of his discharge, Claimant was working in a light-duty 

position. Claimant testified that he had never been released to full-duty, he never 

felt fully recovered, and he believed he could not perform his full-duty, pre-injury 

position. Claimant stated that he has not worked since his discharge on June 21, 

2017, and that he continues to receive therapy for his work injury. R.R. at 24a, 

27a, 30a-31a. 

Claimant also submitted the deposition testimony of Michael J. 

Attanasio, D.O., who is board-certified in family practice. Dr. Attanasio testified 

that he examined Claimant twice, on July 3, 2017, and August 29, 2017, regarding 

Claimant’s complaints of neck pain, right shoulder pain, and left foot and ankle 

pain. Dr. Attanasio performed a physical examination of Claimant, reviewed 

 

2 Throughout Claimant’s testimony, he and his counsel referred to his supervisor as 

James Pappa, or “Mr. Pappa,” however, it is clear from the record that they are referring to 

James Pate. 
4

previous medical records, MRIs, orthopedic evaluations, and physical therapy 

notes. Dr. Attanasio acknowledged that he had not reviewed any diagnostic 

studies of Claimant’s left ankle. Based on his review, Dr. Attanasio noted that 

there was no re-tear in Claimant’s shoulder, but he found tendinosis of multiple 

tendons within the rotator cuff, a partial tear in the subscapularis tendon, a decrease 

in shoulder range of motion, chronic pain, and inflammation. R.R. at 50a-51a, 

54a-58a, 61a, 75a.

Dr. Attanasio opined, within a reasonable degree of medical certainty, 

that Claimant’s pain and loss of range of motion was not corrected by his shoulder 

surgery, that there was no re-tear of his tendon but a different tendon had a small 

tear, that there was right posterior tendinopathy of the ankle and cervical bulging 

disk with foraminal encroachment in his neck, and that Claimant had continued 

pain in his foot, ankle, shoulder, and neck areas. He testified that Claimant could 

not perform any physical job requiring the use of his upper extremities, adding that 

he also believed a sedentary job would be hard for Claimant in light of his 

continued pain and discomfort. Dr. Attanasio said he disagreed with the opinion of 

Mario Arena, M.D., that Claimant could return to work with restrictions. Rather, 

Dr. Attanasio believed that Claimant had not fully recovered from the work injury. 

R.R. at 62a-65a, 69a-70a, 73a. 

Employer presented the testimony of maintenance manager James 

Pate on October 25, 2017. He explained that Employer had a contract with 

Southeastern Pennsylvania Transportation Authority (SEPTA) for the provision of 

transportation services under which Employer provided cleaning and maintenance 

services to SEPTA’s buses. The contract permitted SEPTA to assess liquidated 

damages if Employer did not perform services as required. Mr. Pate testified that 
5

he supervised Claimant throughout his employment. Mr. Pate explained that 

Claimant was off work from January 2013 to July 2013; upon returning, Claimant 

worked in a modified mechanic position, which involved no heavy lifting and 

allowed him to seek assistance from other employees. In 2014, Mr. Pate 

transferred Claimant to a maintenance supervisor position, which involved

scheduling and supervisory duties, to protect him from further injury. R.R. at 

121a. 

In 2016, Claimant transferred to a utility supervisor position. In this 

position, Claimant’s duties originally included fueling and cleaning vehicles, 

scheduling and covering staff, and installing or repairing drive cams and 

mobilizers for safety. Mr. Pate testified that Claimant complained that there was 

too much work, and Claimant’s work duties were subsequently limited to 

supervising his crew. Mr. Pate said that Claimant’s supervisory responsibilities

were light duty in comparison to the physical requirements of his pre-injury 

maintenance job. 

Mr. Pate stated that when SEPTA changed its expectations under the 

contract, he and Mr. Carbanaro developed a plan for cleaning and fueling the buses 

that Claimant was to implement with his crew. In May 2017, they met with 

Claimant for two hours to review the plan, which required Claimant to ensure 

adequate staffing and to stand outside, observe, and direct the crew. However, Mr. 

Pate testified that as soon as he and Mr. Carbanaro left, Claimant refused to adhere 

to the plan. Because Claimant’s crew was not cleaning to SEPTA’s satisfaction, 

SEPTA assessed liquidated damages against Employer. Mr. Pate testified that he 

suspended Claimant on May 31, 2017, due to his insubordination.
6

Mr. Pate said he was not aware that Claimant contacted an attorney. 

He explained that after he and Mr. Carbanaro spoke with Claimant, and despite 

Claimant’s suspension on May 31, 2017, Claimant continued to refuse their 

directives. Mr. Pate testified that Claimant was disciplined at least 14 times, and 

was given verbal and written warnings both before and after his injury. 

Additionally, he stated that Claimant’s crew provided written reports reflecting that 

Claimant refused to follow the plan. Mr. Pate testified that on June 21, 2017, six 

weeks after meeting with Claimant to discuss the need for adequate staffing and 

other specific responsibilities, he issued Claimant an Employee Coaching and 

Counseling form that terminated Claimant’s employment due to “insubordination, 

failure to follow directives, [and] failure to supervise . . . .” R.R. at 127a-28a, 

130a. 

Employer also submitted the deposition testimony of Dr. Arena, who 

is board-certified in orthopedic surgery. Dr. Arena first examined Claimant on 

June 7, 2017, at which time he took a history from Claimant, conducted a physical 

examination of Claimant’s shoulder, performed a neurologic examination of

Claimant’s cervical spine, and reviewed multiple MRIs. Dr. Arena stated that 

although he found limited motion in Claimant’s right shoulder, with some 

tenderness and mild impingement, his neurologic examination of Claimant showed 

full strength. Dr. Arena testified that he reviewed multiple MRIs and saw no 

significant changes from 2012 except for the surgical repair of one tendon tear. He 

believed that any changes in Claimant’s cervical spine were degenerative in nature 

and not causally related to Claimant’s May 29, 2012 work injury. Nevertheless, he 

placed restrictions on Claimant, including occasional lifting up to 25 pounds and 

frequent lifting up to 10 pounds. R.R. at 205a-12a, 225a. 
7

Dr. Arena said that during his second examination of Claimant, on 

October 2, 2017, the symptoms in his right shoulder remained unchanged, but

Claimant complained of soreness and occasional shooting pain in his ankles and 

feet. Dr. Arena stated that upon physical examination, Claimant’s shoulder was 

the same, his neck was the same, and his ankles showed full range of motion 

bilaterally despite subjective tenderness. Dr. Arena testified that he found no 

evidence to support any work restrictions regarding Claimant’s cervical spine, 

ankles, or feet. He acknowledged that Claimant had no prior right shoulder or 

cervical injuries before the injury and that his review of the records revealed 

Claimant continued to experience symptoms since the May 29, 2012 work injury 

occurred. Dr. Arena concluded that Claimant was not fully recovered from his 

right shoulder injury. Nevertheless, Dr. Arena said he would not recommend a 

shoulder replacement; instead, he would prescribe independent exercises and some 

anti-inflammatory medication as needed. He testified that Claimant was capable of 

performing his full duties as a supervisor. R.R. at 214a-19a, 221a, 227a. 

By decision dated February 13, 2018, the WCJ found Claimant 

credible only as to the occurrence of the work injury. Findings of Fact (F.F.) No. 

2. She found Mr. Pate to be more credible than Claimant as to the circumstances 

surrounding Claimant’s discharge, citing Mr. Pate’s demeanor and Claimant’s 

admission that he disregarded Mr. Pate’s explicit directives. Id. She also found 

Dr. Arena more credible and persuasive than Dr. Attanasio, stating that Dr. Arena 
8

was better credentialed and evaluated Claimant more comprehensively, and noting 

that Claimant’s testimony did not support Dr. Attanasio’s testimony.3 Id. 

Relying on Mr. Pate’s credible testimony, the WCJ found that 

Claimant’s May 29, 2012 work injury prevented his return to his pre-injury job, 

and that he had a loss of earning capacity as a result of that work injury. However, 

she found that Claimant returned to work on July 29, 2013, at wages equal to or 

greater than his time-of-injury wages. F.F. No. 3. The WCJ further found that 

work within Claimant’s restrictions would have been available on and after June 

21, 2017, with no loss of wages, but for Claimant’s discharge due to

insubordination, specifically, his refusal to perform his duties as directed. F.F. 

Nos. 16, 40. Referencing Mr. Pate’s testimony, the WCJ concluded that the 

evidence did not establish that Claimant’s earning power was adversely affected by

the work injury, and through no fault of his own, as of June 21, 2017. F.F. No. 41. 

Therefore, the WCJ denied Claimant’s reinstatement petition, and the Board 

affirmed the WCJ’s decision. 

On appeal to this Court,4 Claimant argues that the WCJ’s decision is 

not supported by substantial evidence. More specifically, Claimant contends that 

the WCJ erred in finding a lack of good faith on Claimant’s part and in failing to 

find that Claimant’s condition had worsened. 

 

3 The WCJ amended the NCP by adding “left ankle pain, stable repair right shoulder 

rotator cuff with no evidence of re-tear and with mild residual rotator cuff tendonitis” to 

Claimant’s work injuries. R.R. at 283a.

4 Our scope of review is limited to determining whether constitutional rights were 

violated, whether an error of law was committed, or whether the WCJ’s findings of fact are 

supported by substantial evidence. Dougherty v. Workers’ Compensation Appeal Board (QVC 

Inc.), 102 A.3d 591, 594 n.4 (Pa. Cmwlth. 2014). 
9

Initially, we note that Section 413(a) of the Workers’ Compensation 

Act (Act)5 provides in part as follows:

A workers’ compensation judge . . . may, at any time, 

modify, reinstate, suspend, or terminate a notice of 

compensation payable, an original or supplemental 

agreement or an award of the department or its workers’ 

compensation judge, upon petition filed by either party 

with the department, upon proof that the disability of an 

injured employe has increased, decreased, recurred, or 

has temporarily or finally ceased, or that the status of any 

dependent has changed . . . . [W]here compensation has 

been suspended because the employe’s earnings are equal 

to or in excess of his wages prior to the injury[,] . . . 

payments under the agreement or award may be resumed 

at any time during the period for which compensation for 

partial disability is payable, unless it be shown that the 

loss in earnings does not result from the disability due to 

the injury.

77 P.S. §772 (emphasis added).

A claimant seeking reinstatement following a suspension of benefits 

must prove that (1) through no fault of his own, his disability is again adversely 

affected by the work-related injury, and (2) the disability that gave rise to the 

original claim continues. Pieper v. Ametek-Thermox Instruments Division, 584 

A.2d 301, 304-05 (Pa. 1990). In such cases, the causal connection between the 

original work-related injury and the disability that gave rise to compensation is 

presumed. Id. Once the claimant meets this burden, the burden shifts to the 

 

5 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §772.
10

employer to prove that the claimant’s disability6is due to a cause other than the 

work-related injury. Id.

In Vista International Hotel v. Workmen’s Compensation Appeal 

Board (Daniels), 742 A.2d 649, 657-58 (Pa. 1999), our Supreme Court explained 

that, in determining whether a partially disabled employee is entitled to total 

disability benefits upon the termination of a light-duty job, the factfinder must 

consider the claimant’s good faith and bad faith in connection with the termination. 

If the employer has provided work within the claimant’s physical limitations at no 

loss of pay and establishes that the claimant was discharged for conduct evidencing 

bad faith or a lack of good faith, the claimant is not entitled to a reinstatement of 

benefits. Sauer v. Workers’ Compensation Appeal Board (Verizon Pennsylvania, 

Inc.), 26 A.3d 531, 533, 535-38 (Pa. Cmwlth. 2011). An employer can establish a 

lack of good faith, or bad faith, when the employer proves that it discharged the 

claimant for misconduct. Id. at 536. Whether a claimant was discharged for 

conduct evidencing bad faith is a factual determination for the WCJ. Champion v. 

Workers’ Compensation Appeal Board (Glasgow, Inc.), 753 A.2d 337 (Pa. 

Cmwlth. 2000). 

Claimant first argues that the WCJ’s finding that his discharge was the 

result of bad faith was not based on substantial evidence. However, Claimant 

relies on his own testimony to support this argument, and the WCJ rejected his 

testimony as not credible. F.F. No. 2. Instead, the WCJ credited Mr. Pate’s 

testimony, which demonstrated that Claimant was discharged for insubordination, 

 

6

In the context of workers’ compensation law, the term “disability” means loss of 

earning power. Howze v. Workers’ Compensation Appeal Board (General Electric Co.), 714 

A.2d 1140, 1142 (Pa. Cmwlth. 1998).
11

failure to follow directives, and failure to supervise. Additionally, Mr. Pate’s 

testimony established that while Employer provided light-duty positions to 

accommodate Claimant’s restrictions, Claimant refused to perform his duties as 

instructed. 

It is a fundamental tenet of workers’ compensation law that the WCJ 

is the exclusive arbiter of witness credibility and evidentiary weight. Lindemuth v. 

Workers’ Compensation Appeal Board (Strishock Coal Co.), 134 A.3d 111, 125 

(Pa. Cmwlth. 2016). The WCJ is free to accept or reject, in whole or in part, any 

evidence, including medical testimony. Id. The WCJ’s determinations will not be 

disturbed on appeal if supported by substantial evidence.7 Verity v. Workers’ 

Compensation Appeal Board (The Malvern School), 38 A.3d 936, 940 n.7 (Pa. 

Cmwlth. 2011). It is irrelevant whether there is evidence to support a different 

conclusion. Verizon Pa. Inc. v. Workers’ Compensation Appeal Board (Mills), 116 

A.3d 1157, 1162 (Pa. Cmwlth. 2015). Rather, the inquiry focuses on whether there 

is evidence supporting the WCJ’s findings made. Furnari v. Workers’ 

Compensation Appeal Board (Temple Inland), 90 A.3d 53, 60 (Pa. Cmwlth. 2014). 

In this instance, Mr. Pate’s credible testimony is substantial evidence to support the 

WCJ’s finding that Claimant’s disability was not due to his work injury, but due to 

Claimant’s lack of good faith, i.e., his admitted refusal to carry out his work 

responsibilities as directed. 

Claimant also argues that the WCJ erred in finding his condition had 

not worsened. However, the WCJ rejected Dr. Attanasio’s testimony in this regard 

 

7 Substantial evidence is such relevant evidence as a reasonable person might accept as 

adequate to support a finding. Wells-Moore v. Workmen’s Compensation Appeal Board (McNeil 

Consumer Products Co.), 601 A.2d 879, 881 (Pa. Cmwlth. 1992). 
12

and credited Claimant’s testimony only to establish that he suffered a work injury. 

Consequently, Claimant failed to present credible evidence demonstrating that his 

condition had worsened. Having determined that the WCJ’s decision is supported 

by substantial evidence, we conclude that the WCJ did not err in denying 

Claimant’s reinstatement petition, and the Board properly affirmed the WCJ’s 

decision. 

Accordingly, we affirm. 

MICHAEL H. WOJCIK, Judge

Judge Fizzano Cannon did not participate in the decision of this case.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Richard Koway, :

:

Petitioner :

:

 v. : No. 216 C.D. 2019

: 

Workers' Compensation Appeal :

Board (MV Transportation), :

:

Respondent :

O R D E R

AND NOW, this 25th day of September, 2019, the order of the 

Workers’ Compensation Appeal Board, dated January 29, 2019, is AFFIRMED. 

__________________________________

MICHAEL H. WOJCIK, Judge