IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Intertek USA, Inc., :

Petitioner :

:

 v. : No. 486 C.D. 2022

: Submitted: February 17, 2023

Amol Hate (Workers’ Compensation :

Appeal Board), :

Respondent :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WALLACE FILED: June 14, 2023

Intertek USA, Inc. (Employer) filed a Petition for Review (Petition) of the 

April 19, 2022 order of the Workers’ Compensation Appeal Board (Board) that 

affirmed the Workers’ Compensation Judge’s (WCJ) October 14, 2021 order 

granting Amol Hate’s (Claimant) Claim Petition. Employer argues on appeal the 

Board erred in affirming the WCJ’s decision to grant Claimant’s Claim Petition 

where Employer terminated Claimant’s employment for cause. We affirm.
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I. Background and Procedural History

Claimant worked in Employer’s petroleum inspection division. WCJ 

Decision, 10/14/21 (WCJ Dec.), Findings of Fact (F.F.) ¶ 4.a. His duties included 

inspecting products coming into and leaving refineries. Id. He collected samples by 

climbing a 40- to 60-foot tank and using his arms to dip and fill a glass bottle. Id. 

In October 2019, Claimant started to have pain in his right shoulder. Id. ¶ 4.b. 

As his pain became worse, Claimant notified his direct supervisor. Id. 

Claimant continued performing his job and the pain in his right shoulder increased. 

Id. In January 2020, Claimant went to his family doctor, Sakthipriya Janarthanan

(Dr. Janarthanan), who ordered an x-ray and an electromyography (EMG). Claimant 

also sought treatment with Dr. Dean Trevlyn (Dr. Trevlyn), who is board-certified 

in orthopedic surgery. Id. ¶¶ 4.b & c, 6. In March 2020, Dr. Trevlyn gave Claimant 

a cortisone shot in his right shoulder. Id. ¶ 4.c. After giving Claimant the cortisone 

shot, Dr. Trevlyn gave Claimant a note for two to three weeks of light-duty work. 

Id. ¶ 4.d. Claimant provided the note to Employer, but there was no light-duty work

available, so Claimant was home on medical leave for seven days. Id. ¶ 4.d & g. 

From January 2020 through July 2020, Claimant performed his full-duty job with 

difficulty. Id. ¶ 4.d.

On July 13 or 14, 2020, Claimant was driving from Pennsylvania to Maryland

for work, and he stopped to get a coffee at a convenience store. Id. ¶ 4.d. & i. During 

that stop, another vehicle struck Claimant’s car in the parking lot. Id. ¶ 4.d. Claimant 

reported the accident to his Employer on July 14, 2020. Id. On July 15, 2020, 

Claimant was out of the office to complete an x-ray and EMG, and as a result of the 

testing, his doctors advised him to have surgery. Id. ¶ 4.g & c. On July 16, 2020, 

Claimant informed Employer he would be out of work for three to four months for 
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surgery. Id. ¶ 4.d. On that same day, Employer terminated Claimant’s employment

because of the July 2020 car accident. Id. 

On August 7, 2020, Claimant filed a Claim Petition alleging he sustained a 

right shoulder injury on October 1, 2019, due to cumulative trauma from his work 

with Employer. He sought ongoing total disability benefits beginning July 16, 2020, 

the day Employer terminated his employment. On August 21, 2020, Claimant had 

surgery on his right shoulder. Id. ¶ 4.e. 

On August 25, 2020, Employer issued a Notice of Compensation Denial 

(NCD) denying that on October 1, 2019, Claimant sustained an injury to his right 

shoulder during the course and scope of his employment.

In an October 14, 2021 decision and order, the WCJ granted Claimant’s Claim 

Petition. The WCJ found Claimant met his burden of proving he sustained a workrelated injury (adhesive capsulitis), from which he became totally disabled as of 

August 21, 2020. Id., Conclusions of Law (C.L.) ¶ 2. The WCJ found Claimant was 

entitled to indemnity benefits from August 21, 2020, and ongoing. Id., F.F. ¶ 24.

The WCJ found Claimant was not entitled to indemnity benefits from July 16, 2020, 

through August 21, 2020, because Claimant was fired for cause. Id. ¶ 26.

The Board affirmed the WCJ in an April 19, 2022 opinion and order, and 

Employer appealed.1 On appeal, Employer presents the following issue:

[W]hether the decisions of [the WCJ] and the [Board] are 

supported by substantial evidence and whether [the WCJ] and the 

[Board] erred as a matter of law by failing to limit the benefits 

owed to Claimant based upon his termination for cause and 

ability to work in a light duty capacity.

Employer’s Petition for Review ¶ 11. 

1 Claimant was precluded from filing a brief by October 6, 2022 order of this Court.
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II. Discussion 

In a workers’ compensation appeal, we are limited to determining whether the 

necessary findings of fact are supported by substantial evidence, whether the Board 

committed an error of law, or whether the Board’s decision violates a party’s 

constitutional rights. See Elberson v. Workers’ Comp. Appeal Bd. (Elwyn, Inc.), 936 

A.2d 1195, 1198 n.2 (Pa. Cmwlth. 2007). Substantial evidence is such relevant 

evidence that a reasonable mind might accept as adequate to support a conclusion. 

Republic Steel Corp. v. Workmen’s Comp. Appeal Bd. (Shinsky), 421 A.2d 1060, 

1062 (Pa. 1980). Questions of credibility, conflicting medical evidence and 

evidentiary weight fall within the WCJ’s authority, and the WCJ is free to accept the 

testimony of any witness, including medical witnesses, in whole or in part. Ingrassia 

v. Workers’ Comp. Appeal Bd. (Universal Health Servs., Inc.), 126 A.3d 394, 399 

n.5 (Pa. Cmwlth. 2015). 

Claimant, as the moving party in a claim petition proceeding, bears the burden

of proving all elements necessary to support an award, including the existence of an

injury and disability and a causal relationship between the work-related injury and

the alleged incident. Inglis House v. Workmen’s Comp. Appeal Bd.(Reedy), 634 A.2d 

592, 595 (Pa. 1993). Claimant also has the burden to prove the extent and duration 

of disability. Id.

First, regarding the existence of an injury, Claimant testified by deposition 

that in October 2019, he started to have pain in his right shoulder. WCJ Dec. F.F. ¶

4.b. Dr. Trevlyn performed a physical examination of Claimant and diagnosed 

Claimant with adhesive capsulitis, or frozen shoulder. Id. ¶ 6.a. Dr. Trevlyn opined

that Claimant “inflamed his shoulder with the repetitive activities at work which led 

to the development of adhesive capsulitis.” Id. ¶ 6.e. While there was no identifiable
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incident or accident, this Court has held an injury “is not required to have resulted 

from any sudden occurrence or accident but may be due to daily trauma or a daily 

aggravation of a pre-existing injury.” Firestone Tire & Rubber Co. v. Workmen’s 

Comp. Appeal Bd., 396 A.2d 902, 904 (Pa. Cmwlth. 1979) (citations omitted).

The WCJ found Claimant suffered from adhesive capsulitis as a result of the 

“repetitive trauma of his work duties . . . .” WCJ Dec., F.F. ¶ 22. The WCJ found 

Claimant’s description of how his job duties aggravated his right shoulder “plausible 

and believable.” Id. ¶ 17. Relying upon the testimony of both Claimant and Dr. 

Trevlyn, the WCJ had substantial evidence to find Claimant suffered an injury. 

Second, regarding disability, we recognize disability is synonymous with loss 

of earning power. Eljer Indus. & Travelers Ins. Co. v. Workers’ Comp. Appeal Bd.

(Evans), 707 A.2d 564 (Pa. Cmwlth. 1998). In support of his claim the injury 

resulted in disability, Claimant testified he could not use his right hand and could 

not return to his pre-surgery position because it caused him pain. WCJ Dec., F.F. ¶

5.d & e. The WCJ observed Claimant could lift his right hand “up to 130 or 135 

degrees” while he could lift his left hand “up to 160 or 165 degrees.” Id. ¶ 5.d. The 

WCJ credited Claimant’s testimony of his inability “to lift anything with his right 

hand because of the pain in his shoulder.” Id. The WCJ found Claimant’s “injury 

of repetitive trauma” resulted in disability as of the date of his surgery. Id. ¶ 17. 

Employer argues it should not have remained liable for making indemnity 

payment to Claimant after terminating his employment. While Vista International 

v. Workers’ Compensation Appeal Board (Daniels), 742 A.2d 649 (Pa. 1999), deals

with partial disability, it is instructive. In Vista, our Supreme Court directed we give

appropriate consideration to the initial cause of the loss of 

earnings capacity, namely, the work-related injury, rather

than shifting the entire focus of the inquiry to an event, 
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such as a subsequent termination, which interrupts the 

claimant’s present income stream, but is not the sole cause 

of the continuing diminishment in ability to perform work. 

Moreover, it is consistent with the language of the Act,[2]

which defines partial disability benefits according to the 

loss of earnings power, [Section 306(b) of the Act], 

corresponds to the Act’s remedial purpose, and has the 

effect of providing compensation for that portion of a 

claimant’s loss in earnings capacity that the claimant 

cannot recover in the marketplace due to a continuing 

inability to perform full employment.

Vista, 742 A.2d at 655. In this instance, Claimant became disabled from an injury 

related to his work with Employer. Regardless of his termination, as of his August 21, 

2020 surgery, Claimant continued to experience a loss of earnings capacity resulting 

from his work-related injury.

Recognizing his disability began on August 21, 2020, the WCJ did not grant 

Claimant indemnity benefits beginning July 16, 2020, as Claimant requested in his 

Claim Petition. From January to July 2020, Claimant performed his full-duty 

position, albeit with difficulty. WCJ Dec., F.F. ¶ 4.d. The WCJ did not find 

Claimant eligible for benefits as of July 16, 2020, because from the date of his 

termination until his surgery, Claimant’s loss of earning power was due to his 

termination, not a disability.

However, after his surgery, Claimant was fully disabled and unable to perform 

his previous job. The WCJ found that following the surgery, Claimant “became 

totally disabled.” WCJ Dec., C.L. ¶ 2. Claimant’s surgery resulted in Claimant’s 

total disability and his consequential loss of earning power.

Finally, as to the duration of disability, at Claimant’s last visit with Dr. 

Trevlyn on November 9, 2020, Dr. Trevlyn released Claimant to “sedentary or light2 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4; 2501-2710.
7

duty work,” but opined Claimant was “not fully recovered from surgery or his 

adhesive capsulitis.” WCJ Dec., F.F. ¶ 6.d & f. During his live testimony, the WCJ 

observed Claimant’s inability to lift his right hand like his left hand and found 

credible Claimant’s testimony he could not lift anything because it caused him pain. 

Id. ¶ 5.d.

Ultimately, the WCJ found Claimant met his burden of proving a work-related 

injury and his total disability resulting therefrom. Id., C.L. ¶ 2. The WCJ ordered 

indemnity payments to continue into the “indefinite future,” but specifically 

provided the decision was “subject to the provisions and limitations of the 

Pennsylvania Workers’ Compensation Act, as amended.” Id. ¶ 24. The Board found 

substantial, competent evidence supported the WCJ’s Decision. Bd. Op. at 8. 

III. Conclusion 

The WCJ relied upon substantial evidence to find Claimant suffered an injury 

of repetitive trauma, the injury was related to his work with Employer, the injury 

ultimately resulted in disability, and the disability continued. The Board did not err 

when it affirmed the WCJ’s October 14, 2021 order granting Claimant’s Claim 

Petition. Further, because Claimant’s disability continued, the WCJ and Board did 

not commit an error of law by failing to limit Claimant’s indemnity payments based 

upon his termination for cause or his clearance to perform light-duty work. 

Accordingly, we affirm the Board’s order.

______________________________

STACY WALLACE, Judge

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

Intertek USA, Inc., :

Petitioner :

:

 v. : No. 486 C.D. 2022

: 

Amol Hate (Workers’ Compensation :

Appeal Board), :

Respondent :

O R D E R 

 AND NOW, this 14th day of June 2023, the April 19, 2022 order of the 

Workers’ Compensation Appeal Board is AFFIRMED

______________________________

STACY WALLACE, Judge