IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ismael Gonzalez, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (J.D. Eckman, Inc., and Travelers :
Property Casualty Company of :
America), : No. 1806 C.D. 2014
Respondents : Submitted: March 27, 2015
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: July 31, 2015
Ismael Gonzalez (Claimant) petitions this Court for review of the
Workers’ Compensation Appeal Board’s (Board) September 10, 2014 order affirming
the Workers’ Compensation Judge’s (WCJ) decision denying and dismissing
Claimant’s claim petition. Claimant presents two issues for this Court’s review: (1)
whether the WCJ erred in denying the claim petition after finding that Claimant
sustained a work-related injury; and, (2) whether the WCJ and the Board erred in
failing to find that Claimant’s earnings loss was caused by J.D. Eckman, Inc.’s
(Employer) disregard of its Drug and Alcohol Policy (Drug Policy) and past
practices. After review, we affirm.
Claimant was employed full-time as a laborer for Employer beginning
on April 1, 2011. He completed his 90-day probationary period on or about July 1,
2011. On July 6, 2011, Claimant suffered a work-related low back strain. Claimant
reported the injury when it occurred, and his supervisor Dave Garner (Garner) took
him to WorkNet where, in addition to being treated, Claimant was given a drug and
alcohol test. Claimant returned to work the same day and continued to work
thereafter. WorkNet notified Claimant and Employer on or about July 11, 2011 that
Claimant’s drug test had been positive for cocaine. On July 12, 2011, Employer’s
safety director and drug and alcohol program administrator Richard Wittlinger
(Wittlinger) met with Claimant to discuss the test results. By July 15, 2011 letter,
Employer notified Claimant that his employment was terminated effective
immediately due to Claimant’s verified, positive drug test and his “admission of [his]
intent to conceal [his] drug use . . . .” Reproduced Record (R.R.) at 79a.
On July 20, 2011, Employer filed a medical-only Notice of Temporary
Compensation Payable (NTCP) for Claimant’s July 6, 2011 low back strain. The
NTCP was converted to a Notice of Compensation Payable (NCP) on October 11,
2011. On December 1, 2011, Claimant filed a claim petition seeking total disability
benefits from July 6, 2011 for a lumbar strain/sprain and added left S-1
radiculopathy, related medical bills and counsel fees. WCJ hearings were held on
February 7 and June 5, 2012. By June 28, 2013 decision, the WCJ denied and
dismissed the claim petition because Claimant failed to prove that he sustained any
injury other than his accepted low back strain. The WCJ also terminated Claimant’s
benefits effective May 31, 2012 due to his full recovery. Claimant appealed to the
Board which affirmed the WCJ’s decision on September 10, 2014. Claimant
appealed to this Court.1
Claimant argues that the WCJ erred in denying the claim petition after
finding that Claimant sustained a work-related injury. “In a claim petition, the
1
“On review[,] this Court must determine whether constitutional rights were violated,
errors of law were committed, or necessary findings of fact were supported by substantial
competent evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d
598, 601 n.6 (Pa. Cmwlth. 2014).
2
burden of establishing a right to compensation and of proving all necessary elements
to support an award rests with the claimant.” Coyne v. Workers’ Comp. Appeal Bd.
(Villanova Univ.), 942 A.2d 939, 945 (Pa. Cmwlth. 2008). Specifically, “[i]t is the
claimant’s burden to prove, by substantial evidence, that []he was injured in the
course and scope of employment and that as a result of the injury []he was disabled.”
Waronsky v. Workers’ Comp. Appeal Bd. (Mellon Bank), 958 A.2d 1118, 1123 (Pa.
Cmwlth. 2008). “[W]hen there is no obvious causal connection between the injury
and the alleged work-related cause, unequivocal medical evidence is necessary to
establish that connection.” Wagner v. Workers’ Comp. Appeal Bd. (Ty Constr. Co.,
Inc.), 83 A.3d 1095, 1098 (Pa. Cmwlth. 2014). “Medical testimony is equivocal if it
is less than positive or merely based upon possibilities. In determining whether the
medical testimony is equivocal, we must review the medical testimony as a whole.”
Potere v. Workers’ Comp. Appeal Bd. (Kemcorp), 21 A.3d 684, 690 (Pa.
Cmwlth. 2011) (citation omitted).
At the WCJ hearings, in support of his expanded work injury claim,
Claimant presented the deposition of neurosurgeon Devanand A. Dominique, M.D.
(Dr. Dominique). Dr. Dominique testified that he treated Claimant for the first time
on March 5, 2012 for complaints of constant and chronic low back and leg pain with
associated numbness and tingling, which Claimant specifically related to his July 6,
2011 work injury. Based primarily upon his review of Claimant’s test results,
including a discogram, Dr. Dominique diagnosed Claimant with an L4-L5 herniation
for which he recommended surgery.2 He stated that Claimant’s July 3, 2012 surgery
2
Dr. Dominique admitted that the records he relied upon were “pretty much [his] own,” and
he only “get[s] some information from referring doctors[.]” Supplemental Reproduced Record
(S.R.R.) at 108b. Although he did not specifically recall what records he reviewed, he related that
he most commonly reviews his office intake sheet, a work injury report and diagnostic studies. See
S.R.R. at 113b-114b. He acknowledged that he did not see Claimant’s July 6, 2011 WorkNet report
until he prepared for his deposition. See S.R.R. at 114b-115b.
3
confirmed his diagnosis. When asked whether Claimant sustained a work-related
injury on July 6, 2011, Dr. Dominique responded:3
Well, you know, the simple answer is yes. The more
complex answer is I don’t play detective. You know,
causality is to [sic] the attorneys and the judge. His story is
very much in keeping with what I find on examination. I
think he’s an honest fellow, and what he’s telling me is that
prior to surgery, prior to the injury, he did not have back
problems. He had an injury at work, and since that time he
has had progressive back symptoms, which continued to
worsen until surgery.
Supplemental Reproduced Record (S.R.R.) at 110b. Dr. Dominique explained that
Claimant had a 20-pound lifting restriction and was attending physical therapy to
strengthen his muscles and improve his flexibility, and he was not ready to return to
work. When asked whether Claimant has had those restrictions since July 6, 2011,
Dr. Dominique stated:
I can’t say one way or the other. Certainly, right now the
restrictions he’s on are because of me and because of the
surgery that he had, but I do understand that he was having
trouble before I saw him and was under some kind of
restrictions from my recollection.
S.R.R. at 111b.
Dr. Dominique acknowledged that Claimant’s July and September 2011
medical records do not reflect any radiculopathy. He could not say whether he knew
what Claimant’s job was at the time of his injury. He agreed that the type of
symptoms Claimant had in March 2012 could be related to trauma but, most often,
are a progressive, age-related phenomenon, and that Claimant had not experienced
radiculopathy within the first few months of his injury. He further acknowledged that
3
Notably, Claimant’s counsel asked Dr. Dominique a question already resolved by the NCP.
Counsel did not ask whether Claimant’s L4-L5 condition resulted from the July 6, 2011 work
injury, which was the issue in dispute.
4
there was no evident herniation even as of December 2011, and that Claimant’s
discogram does not reflect when symptoms arose. He pronounced, however, that
“even if . . . he had an entirely degenerative phenomenon, it only became
symptomatic at that time of the work-related injury.” S.R.R. at 122b.
Employer presented the testimony of neurosurgeon William J. Beutler,
M.D. (Dr. Beutler), who reviewed Claimant’s medical records (including his MRI, x-
rays, a discogram and EMGs), obtained details regarding his work injury and
performed an independent medical evaluation (IME) on May 31, 2012. Dr. Beutler
recalled Claimant describing low back pain that radiated into his left buttock and left
leg to his knee, and left leg weakness for which he took Vicodin daily. Dr. Beutler
recounted, however, that Claimant’s “exam was normal,” in that Claimant exhibited
normal strength, sensation and reflexes in his upper and lower extremities and good
range of motion in his back. S.R.R. at 32b. Dr. Beutler did observe that Claimant
had mild, degenerative disk changes at L4-L5 that were consistent with Claimant’s
December 27, 2011 lumbar spine MRI, but offered that “[i]t didn’t have anything to
do with his symptoms.” S.R.R. at 34b.
Dr. Beutler further testified that an EMG conducted on October 27, 2011
reflected that Claimant had mild left S-1 radiculopathy, but since Claimant had no
radicular problems immediately after his July 6, 2011 injury, and the radiculopathy
was on the right (opposite) side, Dr. Beutler concluded that the S-1 radiculopathy was
“completely contrary to anything happening at work in July of 2011” and “d[id]n’t
have any relevance to this [July] lifting injury[.]” S.R.R. at 36b. Dr. Beutler
explained that Claimant’s S-1 radiculopathy had resolved by the time of a February
21, 2012 EMG, but since it reflected bilateral L4-L5 radiculopathy (on both sides and
2 disk levels different than the first EMG), he concluded that “[Claimant’s] disks
were developing some problems” over time for which he had been receiving
appropriate medical treatment. S.R.R. at 37b.
5
Dr. Beutler testified that in order for there to be a connection between
Claimant’s July 2011 injury and his March 2012 symptoms and subsequent L4-L5
disk herniation surgery, the disk would have exhibited significant trauma (i.e., a tear
or collapse), and Claimant would have had persistent and consistent symptoms early
on for which he would have had to sought treatment. Dr. Beutler recognized that,
instead, Claimant had minimal findings when he treated at WorkNet on July 6 and 13,
2011, he did not seek treatment again until September 20, 2011, his treatments
thereafter were minimal, his pain was controlled with Advil, and he did not report
radiating symptoms until January 3, 2012. He also stated that the L4-L5 symptoms
were, most often, related to aging. Dr. Beutler opined within a reasonable degree of
medical certainty that Claimant suffered a lumbar strain on July 6, 2011 that resolved
by May 31, 2012 and, as a result, Dr. Beutler declared that Claimant had no work
restrictions related to his accepted injury. Dr. Beutler described that his only dispute
with Dr. Dominique’s conclusions is the relationship of Claimant’s L4-L5 symptoms
and surgical intervention to Claimant’s work injury.
The law is well established that “[t]he WCJ is the ultimate factfinder and
has exclusive province over questions of credibility and evidentiary weight.” Univ. of
Pa. v. Workers’ Comp. Appeal Bd. (Hicks), 16 A.3d 1225, 1229 n.8 (Pa. Cmwlth.
2011). “The WCJ, therefore, is free to accept or reject, in whole or in part, the
testimony of any witness, including medical witnesses.” Griffiths v. Workers’ Comp.
Appeal Bd. (Red Lobster), 760 A.2d 72, 76 (Pa. Cmwlth. 2000). Thus, neither the
Board nor the Court may review the evidence or reweigh the WCJ’s credibility
determinations. Sell v. Workers’ Comp. Appeal Bd. (LNP Eng’g), 771 A.2d 1246 (Pa.
2001). In addition, the reasoned decision requirement of “Section 422(a) [of the
6
Workers’ Compensation Act (Act),4 77 P.S. § 834,5] does not permit a party to
challenge or second-guess the WCJ’s reasons for credibility determinations. Unless
made arbitrarily or capriciously, a WCJ’s credibility determinations will be upheld on
appeal.” Dorsey v. Workers’ Comp. Appeal Bd. (Crossing Constr. Co.), 893 A.2d
191, 195 (Pa. Cmwlth. 2006) (citation omitted).
Moreover, “it is irrelevant whether the record contains evidence to
support findings other than those made by the WCJ; the critical inquiry is whether
there is evidence to support the findings actually made.” Lahr Mech. v. Workers’
Comp. Appeal Bd. (Floyd), 933 A.2d 1095, 1101 (Pa. Cmwlth. 2007) (quoting
Minicozzi v. Workers’ Comp. Appeal Bd. (Indus. Metal Plating, Inc.), 873 A.2d 25,
29 (Pa. Cmwlth. 2005)). “We review the entire record to determine if it contains
evidence a reasonable mind might find sufficient to support the WCJ’s findings. If
the record contains such evidence, the findings must be upheld even though the
record contains conflicting evidence.” Lahr Mech., 933 A.2d at 1101 (citation
omitted). Finally, this Court has held:
Substantial evidence is such relevant evidence as a
reasonable person might accept as adequate to support a
4
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1–1041.4, 2501–2708.
5
Section 422(a) of the Act provides, in pertinent part:
All parties to an adjudicatory proceeding are entitled to a reasoned
decision containing findings of fact and conclusions of law based
upon the evidence as a whole which clearly and concisely states and
explains the rationale for the decisions so that all can determine why
and how a particular result was reached. The workers’ compensation
judge shall specify the evidence upon which the workers’
compensation judge relies and state the reasons for accepting it in
conformity with this section. When faced with conflicting evidence,
the workers’ compensation judge must adequately explain the reasons
for rejecting or discrediting competent evidence.
77 P.S. § 834.
7
conclusion. In performing a substantial evidence analysis,
this court must view the evidence in a light most favorable
to the party who prevailed before the factfinder. Moreover,
we are to draw all reasonable inferences which are
deducible from the evidence in support of the factfinder’s
decision in favor of that prevailing party.
3D Trucking Co., Inc., v. Workers’ Comp. Appeal Bd. (Fine & Anthony Holdings
Int’l), 921 A.2d 1281, 1288 (Pa. Cmwlth. 2007) (quoting Waldameer Park, Inc. v.
Worker’ Comp. Appeal Bd. (Morrison), 819 A.2d 164, 168 (Pa. Cmwlth. 2003)
(citatitons omitted)).
Here, the WCJ found Dr. Beutler’s testimony credible because it was
“clear, concise, logical, and internally consistent and he did a thorough review of the
medical records.” WCJ Dec. at 6. The WCJ deemed Dr. Dominique’s testimony
“incredible because it [wa]s contrary to the credible and persuasive testimony of Dr.
B[eu]tler.” WCJ Dec. at 4. Based upon the evidence he deemed credible, the WCJ
concluded: “Claimant has failed to sustain his burden of proving by substantial
competent and credible evidence that he sustained any injury other th[a]n the low
back strain that was the work injury of July 6, 2011 and accepted in the NTCP [and
NCP].” WCJ Dec. at 6. On appeal, the Board held, in relevant part:
After careful review, we determine the WCJ did not err in
denying Claimant’s [c]laim [p]etition and terminating
benefits as of May 31, 2012. Where his injury was
already accepted by medical[-]only NCP, it was
Claimant’s burden to establish the work-relatedness of
his . . . additional injuries. . . . The credited testimony of
Dr. Beutler established that Claimant did not have any
restrictions relative to his work injury.
Board Op. at 6-7 (citations omitted; emphasis added). Because this Court may not
reweigh the evidence or the WCJ’s credibility determinations, and viewing the
substantial, credible evidence in a light most favorable to Employer, as we must, we
hold that the WCJ did not err in denying the claim petition after finding that Claimant
8
sustained a work-related injury. Accordingly, the Board properly affirmed the WCJ’s
conclusion that Claimant’s S-1 radiculopathy was not related to his July 6, 2011 work
injury, and that Claimant was recovered from his accepted work injury as of May 31,
2012. Under the circumstances, Claimant is not entitled to medical benefits or costs
related thereto.
Claimant also argues that the WCJ and the Board erred in failing to find
that Claimant’s earnings loss was caused by Employer’s disregard of its Drug Policy
and past practice of permitting similarly-situated employees to participate in a drug
program and keep their jobs.6 Specifically, Claimant contends that “[b]y ignoring []
Employer’s improper, selective, and discriminatory application of its own [Drug
P]olicy, [the WCJ] failed to explain the basis for his credibility determinations and
did not reach a reasoned decision.” Claimant Br. at 16. He further claims that “[t]he
WCJ inexplicably gave greater weight to [Wittlinger’s] testimony . . . even though he
provided incompetent, incredible testimony on the determinative fault issue . . . .”7
Claimant Br. at 18.
6
Initially, we agree that the WCJ did not specifically conclude whether Claimant’s earnings
loss was due to his work-related injury. However, in light of the WCJ’s conclusion that Claimant
failed to prove “that he sustained any injury other th[a]n the low back strain . . . accepted in the
[NCP,]” WCJ Dec. at 6, Claimant failed to “prov[e] all necessary elements to support an award[,]”
so the WCJ did not need to reach the issue of whether his disability was due to the injury or his
discharge. Coyne, 942 A.2d at 945. However, in the interest of comprehensive analysis, we will
address that issue.
Moreover, Employer’s contention that Claimant waived these claims by not raising them on
appeal to the Board is not supported by the record. Although we agree that Claimant failed to raise
those specific arguments to the WCJ and the Board, we find that testimony at the WCJ hearing, and
Claimant’s statements in his appeal brief that Employer’s failure to enroll Claimant in the drug
program as required under its policies, and that Claimant was the only employee who had been
denied the opportunity to participate in the drug program, fairly encompass those claims.
7
Claimant did not dispute the authenticity of his positive drug test before the WCJ or the
Board. Rather, Claimant’s July 6, 2011 positive drug test result, and its accompanying custody and
control and testing forms were admitted without objection. See R.R. at 47a-48a; see also S.R.R. at
211b-214b. Because Claimant here argues for the first time that Employer “failed to confirm the
accuracy of [Claimant’s] urine sample through the production of an authenticated drug test and the
testimony of a qualified expert,” his argument is waived. Claimant Br. at 18; see Mearion v.
9
For purposes of the Act, “‘disability’ means a loss of earning power . . .
.” Brewer v. Workers’ Compensation Appeal Bd. (EZ Payroll & Staffing Solutions),
63 A.3d 843, 848 (Pa. Cmwlth. 2013). “Workers’ compensation benefits are not
intended as a remedy where the claimant’s loss in earnings is attributable to factors
other than the work injury.” Battles v. Workers’ Comp. Appeal Bd. (Pittsburgh
Steelers Sports, Inc.), 82 A.3d 477, 480 (Pa. Cmwlth. 2013).
Where the claimant’s loss of earnings is a result of a
termination for misconduct unrelated to the injury, the
requirement of causal connection to the work-related injury
cannot be satisfied and claimant is not entitled to disability
benefits for that loss. For a termination to bar disability
benefits, the employer must show that the termination was
for conduct that amounts to bad faith or a lack of good faith
on the part of the claimant.
If the employer has . . . work within the claimant’s physical
limitations at no loss of pay and has shown that the claimant
was terminated for conduct evidencing bad faith or a lack of
good faith, disability benefits must be denied, regardless of
whether the claimant has a physical disability caused by the
work-related injury. Under such circumstances, the
claimant is not entitled to workers’ compensation disability
benefits because ‘his loss of earnings subsequent to the
discharge was caused by his own action, not by the work
injury.’ Edwards [v. Workers’ Comp. Appeal Bd. (Sear’s
Logistic Servs.], 770 A.2d [805,] 808 [(Pa. Cmwlth. 2001).]
. . . Violation of an employer’s substance abuse policy
constitutes conduct that amounts to lack of good faith on the
part of the claimant and a claimant terminated for such
conduct is not entitled to disability benefits for that loss.
BJ’s Wholesale Club v. Workers’ Comp. Appeal Bd. (Pearson), 43 A.3d 559, 563 (Pa.
Cmwlth. 2012) (citations omitted).
Workers’ Comp. Appeal Bd. (Franklin Smelting & Refining Co.), 703 A.2d 1080, 1081 (Pa.
Cmwlth. 1997) (“[A]n issue not raised before the WCJ has been waived.”). Even if Claimant had
not waived this argument, due to the lack of evidence and argument to support such a claim, we
would nevertheless uphold the WCJ’s findings that his July 6, 2011 drug test was positive for
cocaine.
10
At the WCJ hearings, Wittlinger introduced Employer’s Drug Policy,
which reflects Employer’s commitment to a drug-free workplace. See R.R. at 45a,
59a, 86a-102a. To that end, the Drug Policy, applicable to all employees, prohibits
their use of illegal drugs, including cocaine. See R.R. at 88a-90a. The Drug Policy
requires employees involved in job-related incidents involving “a reportable injury
for workers’ compensation purposes . . . to submit to drug and/or alcohol testing
within a reasonable time following the accident.” R.R. at 93a; see also R.R. at 53a.
The Drug Policy makes clear that “[Employer] will take disciplinary action, up to and
including termination from employment, against an employee for any violation of
[the Drug Policy].” R.R. at 101a. It further states:
[F]irst time offenders will be suspended without pay until . .
. evaluated by a substance abuse professional who shall
determine what assistance, if any, the employee needs in
resolving problems associated with the misuse of . . .
controlled substances. If the employee declines to undergo
evaluation or participate in a recommended rehabilitation
program, he/she will be terminated.
R.R. at 101a; see also R.R. at 68a. Wittlinger received Claimant’s positive test
results. See R.R. at 47a-48a; see also S.R.R. at 211b-214b. He met with Claimant on
July 12, 2011 regarding the results and, thereafter, issued Claimant’s termination
letter.
Claimant admitted that he signed a Certification by Applicant on
February 4, 2011, whereby he certified that he read and understood that “[i]n the
event of employment: . . . [he was] required to abide by all rules and regulations of
[Employer, that Employer] is committed to providing a drug-free workplace and that
a positive drug test . . . may be grounds for termination of employment.” Certified
Record (C.R.), Notes of Testimony, February 7, 2012 (2/7/12 N.T.) Ex. D-1; see also
R.R. at 24a-25a. Claimant also admitted to signing an Acknowledgement, whereby,
he confirmed that Employer’s Drug Policy was explained to him, he was provided
11
access to it and he understood it. C.R., 2/7/12 N.T. Exs. D-2, D-5; see also R.R. at
25a, 45a-46a. Claimant also acknowledged that Employer’s stated reasons for
terminating his employment consisted of his positive drug test and his admission to
Wittlinger that he would refuse or not seek medical treatment in order to conceal his
drug use. See R.R. at 13a, 27a-28a, 79a.
Claimant recounted Wittlinger informing him at the July 12, 2011
meeting that since Claimant’s probationary employment period had ended, he could
not fire Claimant. He claims Wittlinger gave him the option of entering a drug
program. Claimant contends that he told Wittlinger that since he had not been using
cocaine, he was not sure why the test was positive, but if participating in a drug
program would keep him from losing his job, he would do it. He stated that
Wittlinger was going to make some calls and set up his program interview, but he did
not hear from him. Claimant recalled that when he contacted Wittlinger on July 20th
to find out when he was to start the program, Wittlinger notified him that he had been
fired. Claimant explained that he called Employer’s owner Jenny Eckman, who told
him her understanding was that he had opted not to take the drug program. He
asserted that he never refused the drug program or declared an intention to conceal
his drug use. Without providing specific instances, Claimant described that similarly-
situated employees have been permitted to complete the drug program and keep their
jobs.
Wittlinger recalled that, at the July 12, 2011 meeting, Claimant reported
that he had been at a party where he had been drinking and did cocaine, but that he
wished to keep his job. Wittlinger continued: “[Claimant] had a concern for being
put into this position knowing . . . what our procedures are for injuries and doing
post-accident drug testing and he made a comment that if he knew it was going to
lead to this he would’ve waited to report it.” R.R. at 56a. Wittlinger acknowledged
telling Claimant on July 11, 2011 that he would review Employer’s policy and
12
Claimant’s eligibility for the drug program. He explained, however, that because
Claimant’s statement made him concerned that Claimant was “trying to play the
system,” he ultimately determined to discharge Claimant. R.R. at 57a.
Wittlinger explained that although Employer’s Drug Policy generally
affords first-time offenders a second chance, it also explicitly makes illegal drug use
grounds for immediate termination depending upon the circumstances. He asserted
that although Employer has afforded other employees the chance to enter a drug
program and keep their jobs, Claimant’s situation differed because of “his attempt to
conceal it and play the system.” R.R. at 58a, 64a, 67a. Wittlinger stated that under
these specific circumstances, rather than suspending Claimant or offering him an
independent test certification, he fired him.
Following a lengthy description of the record evidence, the WCJ
declared Wittlinger’s testimony credible, and found Claimant’s testimony “credible
except where it is contrary to the credible and persuasive testimony of [] Wittlinger.”
WCJ Dec. at 3. Because the WCJ witnessed the demeanor of both men as they
testified, he was not required to articulate the objective basis for his credibility
determinations in order to facilitate effective appellate review. See Daniels v.
Workers’ Comp. Appeal Bd. (Tristate Transp.), 828 A.2d 1043 (Pa. 2003); see also
Higgins v. Workers’ Comp. Appeal Bd. (City of Phila.), 854 A.2d 1002 (Pa. Cmwlth.
2004).
Based upon the evidence he deemed credible, the WCJ specifically
found that Claimant understood when he was hired that Employer had a drug-free
workplace policy (Findings of Fact (FOF) 14, 25), that violations thereof could result
in disciplinary action up to and including discharge (FOF 14), and that Claimant’s
employment was terminated due to a positive drug test and his admission that he
would have refused medical treatment or waited to report his July 6, 2011 injury had
he known the outcome (FOFs 7, 16, 26). The WCJ further found that rather than
13
disregarding its Drug Policy and past practice, Employer treated Claimant differently
than other employees with positive drug test results because Employer believed based
on Claimant’s statements that Claimant was insincere about being drug free at work.
(FOFs 8, 27, 28).
On appeal, the Board held, in relevant part:
[I]t was Claimant’s burden to establish the work-
relatedness of his disability. . . . Claimant failed to
establish his loss of earnings was related to his work
injury. . . . [T]he credited testimony of [] Wittlinger
established Claimant was discharged from employment for
violation of [Employer’s] [D]rug [P]olicy. The WCJ
accepted [] Wittlinger’s testimony after observing his
demeanor and no further explanation is required. []
Wittlinger credibly explained that, although [Employer] has
a drug treatment policy, it was discretionary; Claimant was
not entitled to take advantage of such policy due to the
circumstances surrounding his positive drug test.
Therefore, Claimant failed to meet his burden of
establishing a work[-]related disability.
Board Op. at 6-7 (citations omitted; emphasis added).
Because this Court may not reweigh the evidence or the WCJ’s
credibility determinations, and viewing the evidence in a light most favorable to
Employer, as we must, we hold that the WCJ did not err in failing to specifically find
that Claimant’s earnings loss was caused by Employer’s disregard of its Drug Policy
and past practices. Accordingly, the Board properly affirmed the WCJ’s decision.
Based upon the foregoing, we affirm the Board’s order.
___________________________
ANNE E. COVEY, Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ismael Gonzalez, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (J.D. Eckman, Inc., and Travelers :
Property Casualty Company of :
America), : No. 1806 C.D. 2014
Respondents :
ORDER
AND NOW, this 31st day of July, 2015, the Workers’ Compensation
Appeal Board’s September 10, 2014 order is affirmed.
___________________________
ANNE E. COVEY, Judge