IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael Terrinoni, :
Petitioner :
:
v. : No. 1792 C.D. 2016
: Submitted: March 3, 2017
Workers' Compensation Appeal :
Board (Wawa, Inc.), :
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: April 4, 2017
Michael Terrinoni (Claimant) petitions for review from an order of the
Workers’ Compensation Appeal Board (Board) that affirmed a Workers’
Compensation Judge’s (WCJ) decision that granted the termination petition filed
by WAWA, Inc. (Employer) and denied, for the most part, Claimant’s review
petition seeking to expand the description of Claimant’s accepted work injury.
Claimant primarily challenges the bases for the WCJ’s credibility determinations.
He also challenges the Board’s reversal of the WCJ’s award of litigation costs.
Upon review, we affirm the Board.
I. Background
Claimant worked for Employer as a “CIP” (or “clean in place”)
receiver. WCJ’s Op., 6/29/15, Finding of Fact (F.F.) No. 9(a). In September 2012,
Employer issued a notice of temporary compensation payable (NTCP) for an
August 2012 injury described as an “acute left low back strain” that occurred when
Claimant “twisted” in order to connect a hose to a tank. F.F. No. 3. The NTCP
subsequently converted to a notice of compensation payable (NCP).
In January 2013, Employer issued a notification of suspension or
modification effectively suspending Claimant’s wage loss benefits as of January
22, 2013, because Claimant returned to work at earnings equal to or greater than
his pre-injury earnings.
In September 2014, Employer filed a termination petition alleging that
as of July 23, 2014, Claimant fully recovered from his August 2012 work injury
and was able to return to unrestricted work. Claimant filed an answer in which he
denied the material allegations.
Also, in December 2014, Claimant filed a review petition in which he
alleged, among other things, there was a worsening of his condition and the
description of his injury should be expanded to include “trochanteric bursitis,
piriformis syndrome, thigh strain, groin strain, herniated disc, lumbar
radiculopathy and/or failed back syndrome.” WCJ Op. at 1. Employer filed an
answer denying the material allegations. However, Employer agreed to expand the
description of the injury to include a left thigh strain. A hearing ensued before a
WCJ.1
1
In January 2015, Claimant filed a claim petition, alleging that after his return to work,
he sustained a new injury to his low back on July 18, 2013, in the nature of an aggravation.
Ultimately, the WCJ denied Claimant’s claim petition, and the Board affirmed. An appeal of the
Board’s decision is pending before this Court at Docket No. 1353 C.D. 2016.
2
At the hearing, Claimant testified he worked for Employer as a CIP
receiver. On August 22, 2012, he injured his back and left leg when he twisted
while hooking up the supply to a machine. He sought medical attention, missed
one day of work and returned to light duty work. Claimant worked light duty until
January 2013, at which time Claimant returned to his full-duty job in CIP
receiving. Thereafter, Claimant continued to perform his full-duty job, but he
experienced pain. Claimant began treating with Robert Sing, D.O. (Claimant’s
Physician), in July 2013. Claimant testified his Physician placed him on light-duty
restrictions as of that time. Claimant’s Physician referred Claimant to Christian
Fras, M.D. (Claimant’s Orthopedist), an orthopedic surgeon, who performed
surgery on Claimant in December 2013. Claimant did not return to work after the
surgery. Claimant’s Orthopedist performed a second surgery on Claimant in
February 2014. Claimant testified he continues to experience pain, and he does not
believe he is capable of returning to full-time work in any capacity.
In support of his review petition and in opposition to Employer’s
termination petition, Claimant presented the deposition testimony of his Physician,
who is board-certified in family practice, sports medicine and emergency
medicine. Claimant’s Physician first examined Claimant in July 2013. Claimant’s
Physician initially diagnosed a work-related injury that consisted of lower back
pain and left piriformis syndrome with associated left sciatica. He examined
Claimant numerous times after Claimant’s initial visit, and he observed Claimant’s
condition change significantly as Claimant underwent two surgeries and
Claimant’s condition did not improve. Based on his treatment of Claimant for over
a year-and-a-half, Claimant’s Physician diagnosed a lower back sprain with
3
piriformis syndrome and a meralgia paresthetica. Claimant’s Physician also
opined that Claimant developed a lumbar disc herniation through the work that he
continued to perform and that Claimant’s work injury was a substantial
contributing factor in his subsequent surgical procedures. As of his most recent
evaluation of Claimant, Claimant’s Physician diagnosed failed lumbar surgical
syndrome, status post fusion, status post L5-S1 disc herniation, left S1
radiculopathy with reflex changes and left piriformis syndrome with associated
lumbar strain and sprain. Claimant’s Physician opined that Claimant’s August
2012 work injury was a substantial contributing factor in these conditions. He also
opined Claimant was not capable of returning to his regular duty job, but Claimant
could perform sedentary work.
In addition, Claimant presented the deposition of his Orthopedist, a
board-certified orthopedic surgeon, who began treating Claimant in November
2013. Claimant’s Orthopedist initially diagnosed symptomatic lumbar disc
herniation and radiculopathy. Claimant’s Orthopedist’s ultimate diagnosis was
lumbar disc herniation and aggravation of lumbar degenerative disc disease, from
which Claimant did not fully recover. Claimant’s Orthopedist opined that
Claimant’s August 2012 work injury was a substantial contributing factor in these
conditions. He further opined Claimant could not return to his full-duty job with
Employer, but he could work in a sedentary to light-duty capacity initially part-
time progressing to full-time work.
Finally, Claimant presented the deposition testimony of Scott Sexton,
M.D. (Dr. Sexton), who performed an independent medical examination of
4
Claimant in August 2013. Dr. Sexton diagnosed left hip piriformis syndrome and
left hip meralgia paresthetica. He opined that it appeared these diagnoses were
related to Claimant’s August 2012 work injury.
In support of its termination petition and in opposition to Claimant’s
review petition, Employer submitted the deposition testimony of Richard Schmidt,
M.D. (Employer’s Orthopedist), who is board-certified in orthopedic surgery.
Employer’s Orthopedist examined Claimant on July 30, 2014. Employer’s
Orthopedist diagnosed a left thigh and lower back strain. He opined that, based on
his examination, a review of Claimant’s history and his review of medical records
and diagnostic studies, Claimant was fully recovered from his work injuries.
Employer’s Orthopedist did not believe Claimant required additional medical
treatment as a result of his work injury.
Ultimately, the WCJ rejected Claimant’s testimony as not credible.
The WCJ also credited the opinions of Employer’s Orthopedist over those of
Claimant’s doctors. As a result, the WCJ granted Employer’s termination petition
effective as of the date of Employer’s Orthopedist examination in July 2014.
Additionally, the WCJ denied Claimant’s review petition seeking to expand
Claimant’s injury description by adding trochanteric bursitis, piriformis syndrome,
groin strain, herniated disc, lumbar radiculopathy, and failed back syndrome;
however, based on Employer’s Orthopedist’s testimony the WCJ added a left thigh
strain to the recognized injury description. Further, the WCJ awarded Claimant
litigation costs of $8,465.29. Claimant and Employer filed cross appeals to the
Board.
5
On appeal, the Board affirmed the WCJ’s decision regarding
Employer’s termination petition and Claimant’s review petition. However, the
Board reversed the WCJ’s award of litigation costs to Claimant. In so doing, the
Board determined that Claimant did not prevail on a contested issue in this
litigation. To that end, while Claimant prevailed, in part, on his review petition by
expanding the injury description to include a left thigh strain, Employer did not
dispute that Claimant suffered a work-related left thigh strain. Thus, the Board
determined, Claimant was not entitled to an award of litigation costs. Claimant
now petitions for review to this Court.
II. Issues
On appeal,2 Claimant argues the Board: (1) failed to identify the
erroneous “scheme” of the WCJ’s decision and improper credibility
determinations, resulting in a determination that “could not logically be reached”
based on the record as a whole; and, (2) erred in reversing the award of litigation
costs. Pet’r’s Br. at 2.
III. Discussion
A. Credibility Determinations
Claimant first contends the Board failed to apply the correct standard
of review. In particular, he asserts a WCJ’s decision must be set aside where the
conclusions could not logically be reached based on the evidentiary record as a
whole. Claimant argues the Board failed to recognize that the WCJ’s decision,
2
Our review is limited to determining whether the WCJ’s findings of fact were supported
by substantial evidence, whether an error of law was committed or whether constitutional rights
were violated. Phoenixville Hosp. v. Workers’ Comp. Appeal Bd. (Shoap), 81 A.3d 830 (Pa.
2013).
6
when considered in conjunction with the evidence as a whole, represented a
capricious abuse of fact-finding authority, and that the credibility determinations
were based on an improper and illogical scheme.
Specifically, Claimant maintains the WCJ placed undue emphasis on
Claimant’s employment verification forms, and that the WCJ’s erroneous analysis
of those forms tainted the WCJ’s subsequent credibility determinations of every
witness. As a result, Claimant contends “[t]he entire evidentiary record was
viewed through a distorted prism, whether consciously or subconsciously.” Pet’r’s
Br. at 11 (Summary of Argument). Claimant argues that, even having rejected
Claimant’s testimony, the improper credibility determinations regarding the
conflicting medical evidence reveals a “scheme” that is contrary to the
overwhelming weight of the evidence, such that the WCJ’s conclusions could not
logically have been reached, based on the record as a whole. Id. (emphasis in
original).
At the outset, we note, as the ultimate fact-finder in workers’
compensation cases, the WCJ “has exclusive province over questions of credibility
and evidentiary weight ….” A & J Builders, Inc. v. Workers’ Comp. Appeal Bd.
(Verdi), 78 A.3d 1233, 1238 (Pa. Cmwlth. 2013). The WCJ may accept or reject
the testimony of any witness in whole or in part. Id.
“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.” Furnari v. Workers’ Comp.
7
Appeal Bd. (Temple Inland), 90 A.3d 53, 60 (Pa. Cmwlth. 2014) (citation omitted).
We examine the entire record to see if it contains evidence a reasonable person
might find sufficient to support the WCJ’s findings. Id. If the record contains such
evidence, the findings must be upheld, even though the record may contain
conflicting evidence. Id. Additionally, we must view the evidence in the light
most favorable to the prevailing party and give it the benefit of all inferences
reasonably deduced from the evidence. Id.
A capricious disregard only occurs when the WCJ deliberately ignores
relevant, competent evidence. Capasso v. Workers’ Comp. Appeal Bd. (RACS
Assocs., Inc.), 851 A.2d 997 (Pa. Cmwlth. 2004). Capricious disregard of
evidence “is a deliberate and baseless disregard of apparently trustworthy
evidence.” Williams v. Workers’ Comp. Appeal Bd. (USX Corp.-Fairless Works),
862 A.2d 137, 144 (Pa. Cmwlth. 2004). “[W]here there is substantial evidence to
support [a WCJ’s] factual findings, and those findings in turn support the
conclusions, it should remain a rare instance in which an appellate court would
disturb an adjudication based upon capricious disregard.” Leon E. Wintermyer,
Inc. v. Workers’ Comp. Appeal Bd. (Marlowe), 812 A.2d 478, 487 n.14 (Pa. 2002)
(emphasis added).
In addition, to satisfy the reasoned decision requirements of Section
422(a) of the Workers’ Compensation Act (Act),3 a WCJ must set forth the
rationale for the decision by specifying the evidence relied upon and reasons for
accepting it. Daniels v. Workers’ Comp. Appeal Bd. (Tristate Transp.), 828 A.2d
3
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §834.
8
1043 (Pa. 2003); Dorsey v. Workers’ Comp. Appeal Bd. (Crossing Constr. Co.),
893 A.2d 191 (Pa. Cmwlth. 2006). When conflicting evidence is presented, the
WCJ must adequately explain the reasons for rejecting or discrediting competent
evidence. Daniels. The WCJ may not reject uncontroverted evidence without
reason or for an irrational reason, but must identify such evidence and adequately
explain the reasons for its rejection. Id. “[T]he purpose of a reasoned decision is
to spare the reviewing court from having to imagine why the WCJ believed one
witness over another.” Dorsey, 893 A.2d at 196 (citation omitted).
Further, a WCJ may base a credibility determination solely on a
witness’s demeanor when the witness testifies live before the WCJ. Daniels.
However, “[w]here medical experts testify by deposition, a WCJ’s resolution of
conflicting evidence must be supported by more than a statement that one expert is
deemed more credible than another.” Dorsey, 893 A.2d 194. To allow effective
appellate review, the WCJ must articulate an objective basis for the credibility
determination. Id. at 194-95. Although there are countless objective factors that
may support a credibility determination, these factors must be identified and
enunciated. Id.
Nevertheless, “Section 422(a) does not permit a party to challenge or
second-guess the WCJ’s reasons for credibility determinations.” Id. at 195.
“Unless made arbitrarily or capriciously, a WCJ’s credibility determinations will
be upheld on appeal.” Id.
9
Further, to terminate a claimant’s benefits, the employer bears the
burden of establishing that either the claimant’s disability ceased or that his
remaining disability is unrelated to the work injury. Gillyard v. Workers’ Comp.
Appeal Bd. (Pa. Liquor Control Bd.), 865 A.2d 991 (Pa. Cmwlth. 2005) (en banc).
An employer may satisfy this burden by submitting unequivocal, competent
medical evidence of the claimant’s full recovery from his work injury. Jackson v.
Workers’ Comp. Appeal Bd. (Res. for Human Dev.), 877 A.2d 498 (Pa. Cmwlth.
2005).
In addition, under Section 413(a) of the Act, 77 P.S. § 771, a WCJ
may amend an NCP at any time during litigation of any petition if the evidence
shows the injury sustained in the original work incident is different or more
expansive than that listed in the NCP.4 Harrison v. Workers’ Comp. Appeal Bd.
(Auto Truck Transp. Corp.), 78 A.3d 699, 704 (Pa. Cmwlth. 2013) (citing Cinram
Mfg., Inc. v. Workers’ Comp. Appeal Bd. (Hill), 975 A.2d 577, 580-81 (Pa.
2009)). This is known as a “corrective amendment.” Id. Additionally, the NCP
can be amended if the claimant files a review petition and proves that another
injury subsequently arose as a consequence of the original injury. Id. The party
seeking to amend the NCP has the burden of proving the NCP is materially
incorrect. Id. (citing Namani v. Workers’ Comp. Appeal Bd. (A. Duie Pyle), 32
A.3d 850 (Pa.Cmwlth.2011)).
4
Section 413(a) states, in relevant part: “A [WCJ] may, at any time, review and modify
or set aside a [NCP] and an original or supplemental agreement ... if it be proved that such [NCP]
or agreement was in any material respect incorrect.” 77 P.S. §771.
10
Here, in resolving the termination and review petitions, the WCJ made
the following credibility determinations:
a. This [WCJ], having had the opportunity to observe
Claimant and his demeanor when he testified at the …
hearing, finds the overall testimony of Claimant to be
less than credible in the instant dispute. In this matter,
Claimant submitted the LIBC 750 and LIBC 760 to
Employer asserting that he was not ‘self-employed’ at
any time while receiving workers’ compensation
benefits. (Defendant Exhibit 09). Yet, Claimant
acknowledged that he had, as far back as 2009, been
attempting to start a business (Hrg., 3/23/15 at 32), and
during the course of the proceedings, Employer
submitted into evidence an ‘Independent Associate
Agreement’ Claimant had executed with TVC Marketing
Associates, Inc. (Defendant Exhibit 06) as well as
another printed web page relating to Claimant concerning
another venture Claimant was trying. (Defendant
[Exhibit] 10). Although Claimant asserted that he made
no income from these ventures, Claimant testified that
when he filed his tax returns, he claimed deductions for
certain expenses related to the same. (Hrg., 3/23/15 at
33). To this [WCJ], these facts are inconsistent, i.e., an
assertion to Employer that one is not self-employed and a
claim to the Internal Revenue Service that there are
business deductions, i.e., a computer and writing off a
home office. In the mind of this [WCJ], the foregoing
inconsistency was bothersome and calls into question
Claimant’s overall veracity. In addition, this [WCJ]
questions the assertion of Claimant that he was not sure
he could return to work in a job that involved answering
phones (Id. at 52) given that [Claimant’s Orthopedist],
one of Claimant’s own medical experts testified that
Claimant was able to work in a sedentary to light duty
capacity initially part time and then progressing to full
time. (Fras [Dep., 3/11/15] at 31-32). Again, to this
[WCJ], the assertion of Claimant seemed, at best,
inconsistent with the opinion of his own medical expert,
and at worst, an embellished representation made to this
[WCJ] as to his alleged ongoing disability. As such, to
11
the extent that the testimony of Claimant conflicts with or
is material [sic] different from any of the other witnesses
who testified in this matter, the testimony of Claimant is
rejected as less than credible and not reliable.
b. This [WCJ], having carefully considered and reviewed
the deposition testimony of [Dr. Sexton] in the context of
the Review Petition filed by Claimant and the
Termination Petition filed by Employer, finds the
testimony and opinions of Dr. Sexton to be competent,
but only credible in part. Specifically, this [WCJ] credits
the opinions expressed by Dr. Sexton as to the fact that
Claimant had a normal MRI of the lumbar spine from
2012 (Sexton [Dep., 3/30/15] at 10-12) and there was
also a normal bone scan from December 12, 2012. This
fact comports with the comments of [Employer’s
Orthopedist] and [Claimant’s Orthopedist] that the earlier
MRI from September 2012 of the low back was read as
normal. (See Schmidt [Dep., 12/1/14] at 18 and Fras
[Dep.] at 28). In light of this, this [WCJ] credits the
opinion of Dr. Sexton that, at least as of the date he
evaluated Claimant that he saw no role in operating on
someone’s normal lumbar spine. (Sexton [Dep.] at 14).
This [WCJ] did not find the opinion of the Doctor
concerning his diagnosis of left hip piriformis syndrome
and left hip meralgia paresthetic to be particularly
credible in this dispute. Here[,] the Doctor
acknowledged that this diagnosis was based primarily on
Claimant’s subjective complaints. (Id. at 12). In the
view of this [WCJ], the foundation of that diagnosis is
therefore premised upon the veracity of Claimant’s report
of symptoms. As noted by this [WCJ] above, the overall
veracity of Claimant is not reliable, which in turn
undermines the foundation upon which the Doctor relied.
In addition, this [WCJ] noted that both [Employer’s
Orthopedist] and one of Claimant’s own medical experts
that he presented, i.e., [Claimant’s Orthopedist], both
testified that Claimant did not have left hip piriformis
syndrome and were completely silent as to left hip
meralgia paresthetic. In addition, this [WCJ] found the
explanation of [Employer’s Orthopedist] concerning the
testing that would be done for diagnosing piriformis
syndrome to be more persuasive, i.e., a positive EMG
12
study. Here, however, even Dr. Sexton acknowledged
that the available EMG study that he reviewed was
normal. (Sexton [Dep.] at 7). Given these factors, this
[WCJ] rejects the opinions of Dr. Sexton relative to the
diagnosis of left hip piriformis syndrome or left hip
meralgia paresthetic to be less than credible and not
persuasive.
c. This [WCJ], having carefully considered and reviewed
the deposition testimony of [Claimant’s Orthopedist] in
the context of the Review Petition filed by Claimant and
the Termination Petition filed by Employer, finds the
testimony and opinions of and [Claimant’s Orthopedist]
to be competent, but less than credible or persuasive in
the instant dispute and or insufficient to meet Claimant’s
burden of proof to expand the description of the August
22, 2012 work injury. First, with respect to a number of
the alleged additional diagnoses that Claimant seeks to
include as related to the August 22, 2012 work incident,
the testimony of the Doctor is insufficient to support
expanding the description of injury to include
trochanteric bursitis, thigh strain, groin strain and failed
back syndrome. This [WCJ] notes that [Claimant’s
Orthopedist] rendered no opinion as to whether Claimant
had these diagnoses. With respect to the diagnosis of
piriformis syndrome, the Doctor expressly testified that
Claimant did not have this condition. (Fras [Dep.] at 36).
The diagnosis that the Doctor had made, at least as of the
last visit he had with Claimant during November 2014,
was lumbar disc herniation and aggravation of lumbar
degenerative disc disease and that the August 22, 2012
work event was a substantial contributing factor to these
conditions. When reviewing the evidence as a whole and
considering all the testimony together, this [WCJ] does
not find the causal nexus [Claimant’s Orthopedist] draws
between his diagnosis and the August 22, 2012 work
event to be particularly credible. First, even [Claimant’s
Orthopedist] acknowledged that the MRI from
September 13, 2012, about a month after the work event,
was normal/unremarkable. The Doctor had not seen
Claimant until more than a year after the work incident
and only after Claimant had a period of time where he
had returned to work and then again stopped working,
13
i.e., after the period from January 2013 through July
2013. In addition, the Doctor agreed that he had never
actually seen the film from the 2012 MRI (Fras [Dep.] at
40). In addition, the Doctor was, at best, only able to
testify that the disc herniation had occurred sometime
after the August 22, 2012 work incident. (Fras [Dep.] at
46). Finally, this [WCJ] also weighed the fact that the
evidence and testimony presented in this dispute revealed
that an EMG done in 2012 was also normal. (See Sexton
[Dep.] at 13). Given the foregoing factors, this [WCJ]
does not find the opinions expressed by and [Claimant’s
Orthopedist] concerning any causal nexus between the
August 22, 2012 work incident and the diagnosis that he
has provided to be credible.
d. This [WCJ], having carefully considered and reviewed
the deposition testimony of [Claimant’s Physician] in the
context of the Review Petition filed by Claimant and the
Termination Petition filed by Employer, finds the
testimony and opinions of [Claimant’s Physician] to be
competent, but less than credible with respect to his
diagnosis of left piriformis syndrome and meralgia
paresthetic. In the view of this [WCJ], the foundation of
that diagnosis is premised upon the veracity of
Claimant’s report of symptoms. As noted by this [WCJ]
above, the overall veracity of Claimant is not reliable,
which in turn undermines the foundation upon which the
Doctor relied. In addition, this Judge noted that both
[Employer’s Orthopedist] and one of Claimant’s own
medical experts that he presented, i.e., [Claimant’s
Orthopedist], both testified that Claimant did not have
left hip piriformis syndrome and was completely silent
with respect to any diagnosis of left hip meralgia
paresthetic. This [WCJ] also weighed, in making this
credibility determination, the relative expertise of the
medical witnesses who testified. Here, [Claimant’s
Physician] is only Board Certified in family practice,
sports medicine and emergency medicine, whereas both
[Employer’s Orthopedist] and [Claimant’s Orthopedist]
are Board Certified orthopedic surgeons. On the issue of
piriformis syndrome and meralgia paresthetic, this [WCJ]
was more impressed with the opinions and testimony of
the Board Certified orthopedic surgeons and especially
14
the explanation provided by [Employer’s Orthopedist] as
to the requisite diagnostic study needed to confirm
piriformis syndrome. In addition, this [WCJ] did not find
the opinion of the Doctor that Claimant had sciatica that
was related to the August 22, 2012 work incident to be
credible. In this respect, this [WCJ] weighed the fact that
there was a normal EMG and a normal MRI from 2012.
In the mind of this [WCJ], and in the context of the
credible explanations provided by [Employer’s
Orthopedist] as to the import of these normal studies, this
[WCJ] simply did not believe the opinion of [Claimant’s
Physician] that there was a causal nexus between this
diagnosis and the August 22, 2012 work incident. Given
the foregoing factors, this [WCJ] does not find the
opinions expressed by [Claimant’s Physician] concerning
any causal nexus between the August 22, 2012 work
incident and the diagnosis that he has provided to be
credible.
e. This [WCJ], having carefully considered and reviewed
the deposition testimony of [Employer’s Orthopedist] in
the context of the Review Petition filed by Claimant and
the Termination Petition filed by Employer, finds the
testimony and opinions of [Employer’s Orthopedist] to
be competent and credible. In the view of this [WCJ],
the testimony and opinions expressed by [Employer’s
Orthopedist] were straight forward and unshaken upon
cross examination. Further, the diagnosis provided by
[Employer’s Orthopedist] as to the nature of the August
22, 2012 work injury, i.e., a left thigh and lower back
strain (Schmidt [Dep.] at 18) appeared to this [WCJ] to
be more consistent with the diagnostic studies that had
been done at or in close proximity to the original work
event in 2012. To this [WCJ], [Employer’s Orthopedist]
better explained his rationale as to why he came to the
conclusions he did with respect to the nature of the 2012
work injury. Specifically, the MRI that was done on
September 13, 2012 was normal. Even [Claimant’s
Orthopedist], [Claimant’s Physician], and Dr. Sexton
agreed to this fact. Further, the EMG and bone scan done
early in this case were also normal. When weighing all
the evidence and medical testimony presented, this
[WCJ] was simply more persuaded by the opinion of
15
[Employer’s Orthopedist] as to the nature of the August
22, 2012 work injury and whether the 2012 injury
necessitated surgical intervention (Schmidt [Dep.] at 30)
than any of the other witnesses presented in this dispute.
Likewise, this [WCJ] found the testimony of [Employer’s
Orthopedist] that Claimant did not suffer from piriformis
syndrome to be credible. He specifically pointed to the
type of diagnostic testing that would need to be abnormal
to establish this diagnosis. In this matter, [Employer’s
Orthopedist] noted that these tests were done and they
were normal. (Schmidt [Dep.] at 24-28). Based upon the
foregoing factors, this [WCJ] accepts the testimony and
opinions expressed by [Employer’s Orthopedist] as to the
nature of the August 22, 2012 work injury and the fact
that as of July 30, 2014, Claimant had recovered from
this injury.
F.F. No. 17(a)-(e).
Claimant challenges each of the above credibility determinations. He
acknowledges that the WCJ set forth detailed reasons for his acceptance or
rejection of each item of evidence. Considered in a vacuum, Claimant argues, each
individual “reason” may seem valid. Pet’r’s Br. at 13. Indeed, Claimant contends,
even “observation and demeanor” based reasons were set forth, which are
recognized as a valid exercise of the WCJ’s authority. Id. However, Claimant
asserts, it is the overall scheme of the WCJ’s findings, in comparison to the record
as a whole, and the overwhelming weight of the evidence, which render the
decision erroneous. Claimant maintains that while no single error may cause this
Court to reverse the WCJ’s decision, the combination of errors taken together is
what should be determinative. We disagree.
16
First, as to the WCJ’s rejection of Claimant’s testimony, because
Claimant testified live before the WCJ, the WCJ was permitted to base his
credibility determination regarding Claimant solely on demeanor. Daniels. The
WCJ did so here. F.F. No. 17(a). Moreover, the record supports the WCJ’s
additional reasons for rejecting Claimant’s testimony.
To that end, as the WCJ found, the record discloses inconsistencies in
Claimant’s case. First, as the WCJ explained, Claimant completed an “Employee
Report of Wages and Physical Condition” Form (LIBC-750) and an “Employee
Verification of Employment, Self-Employment or Change in Condition” Form
(LIBC-760), in which he indicated he was not employed or self-employed at any
time while receiving workers’ compensation benefits. Reproduced Record (R.R.)
at 324-25, 328-29. Before the WCJ, Claimant acknowledged he attempted to start
a business as far back as 2009, and Employer presented an “Independent Associate
Agreement” Claimant executed with TVC Marketing Associates in 2014 as well as
a computer printout from 2014 relating to another business venture attempted by
Claimant. R.R. at 214, 319, 330. Although Claimant asserted he generated no
income from these undertakings, as the WCJ found, when asked if he ever filed
business tax returns, Claimant responded: “No. The only thing I ever did with that
business was claim the stuff that I was trying to get it running, like a computer, you
know, like a --- we took the write off for a home office basically. That’s all I ever
did.” R.R. at 215. Thus, as the WCJ found, these facts were inconsistent because,
on the one hand, in November 2014, Claimant completed Bureau of Workers’
Compensation Forms on which he indicated he was not employed or self-employed
at any time while receiving workers’ compensation benefits (despite receiving
17
indemnity and/or medical benefits from August 2012 through July 2014), while, on
the other hand, Claimant made a claim to the Internal Revenue Service that there
were business tax deductions, i.e., a computer and writing off a home office. F.F.
No. 17(a).
In addition, the WCJ determined Claimant’s testimony that he was
“not sure” that he could return to a job that involved answering phones was
inconsistent with Claimant’s Orthopedist’s opinion that Claimant could perform
sedentary to light duty work beginning part-time and progressing to full-time
employment, if tolerated on a part-time basis. Compare R.R. at 234 (Claimant’s
testimony) with R.R. at 124-25 (Claimant’s Orthopedist’s testimony). In short,
because the record supports the WCJ’s findings regarding these inconsistencies, we
discern no error in these additional bases for the WCJ’s rejection of Claimant’s
testimony.
Further, as to the WCJ’s credibility determinations concerning the
medical evidence, the record supports the WCJ’s findings that:
Dr. Sexton opined Claimant had a normal MRI in
2012 as well as a normal bone scan from December
2012. R.R. at 252-254, 256. This opinion was consistent
with the testimony of [Employer’s Orthopedist] and
[Claimant’s Orthopedist] that the 2012 MRI of the low
back was read as normal. R.R. at 120, 279.
As a result, Dr. Sexton credibly opined that, at
least as of the date he evaluated Claimant he saw no role
in operating on someone’s normal lumbar spine. R.R. at
256.
18
Dr. Sexton’s diagnoses of left hip piriformis
syndrome and left hip meralgia paresthetic were not
credible in light of his acknowledgment that these
diagnoses were based primarily on Claimant’s subjective
complaints, R.R. at 254, and the WCJ did not find
Claimant credible, F.F. No. 17(a), which, in turn,
undermined the foundation on which Dr. Sexton relied.
Both Employer’s Orthopedist and Claimant’s
Orthopedist agreed Claimant did not have left hip
piriformis syndrome and were completely silent as to left
hip meralgia paresthetic. R.R. at 129, 285, 289. In
addition, the WCJ was persuaded by Employer’s
Orthopedist’s explanation regarding the testing that
would be performed in order to diagnose piriformis
syndrome, i.e., an EMG study. R.R. at 285. Here,
however, even Dr. Sexton acknowledged the EMG study
he reviewed on Claimant was normal. R.R. at 255.
Thus, the WCJ rejected Dr. Sexton’s diagnoses of
left hip piriformis syndrome and left hip meralgia
paresthetic. F.F. No. 17(b).
Claimant’s Orthopedist rendered no opinion as to
whether Claimant had trochanteric bursitis, thigh strain,
groin strain and failed back syndrome. R.R. at 94-182.
Claimant’s Orthopedist expressly testified
Claimant did not have piriformis syndrome. R.R. at 129.
Claimant’s Orthopedist’s opinions that Claimant
suffered a lumbar disc herniation and aggravation of
lumbar degenerative disc disease and that the August 22,
2012 work event was a substantial contributing factor to
these conditions was not credible where: Claimant’s
Orthopedist acknowledged the September 2012 MRI
report, about a month after the work incident, was
unremarkable, R.R. at 120; Claimant’s Orthopedist did
not see Claimant until more than a year after the work
incident and only after the period in which Claimant
returned to work and then stopped working again
(January 2013 through July 2013), R.R. at 101;
Claimant’s Orthopedist never saw the film of the 2012
19
MRI, R.R. at 133; and, at best, Claimant’s Orthopedist
could testify the disc herniation occurred sometime after
the August 2012 work incident. R.R. at 139.
Claimant’s Physician’s opinions that Claimant
suffered from left piriformis syndrome and meralgia
paresthetic were not credible given that those diagnoses
were premised on the veracity of Claimant’s report of
symptoms, and the WCJ did not find Claimant credible,
F.F. No. 17(a).
Both Employer’s Orthopedist and Claimant’s
Orthopedist opined Claimant did not have left hip
piriformis syndrome and were completely silent as to any
diagnosis of left hip meralgia paresthetic. R.R. at 129,
285, 289.
Claimant’s Physician is board certified in family
practice, sports medicine and emergency medicine,
whereas both Employer’s Orthopedist and Claimant’s
Orthopedist are board certified orthopedic surgeons.
R.R. at 29, 99, 266-67. Thus, as to the issues of
piriformis syndrome and meralgia paresthetic, the WCJ
was more persuaded by the opinions of the board
certified orthopedic surgeons and especially the
explanation provided by Employer’s Orthopedist as to
the requisite diagnostic study needed to confirm
piriformis syndrome. R.R. at 286, 289.
Claimant’s Physician’s diagnosis of sciatica, which
he opined was related to the August 2012 work incident,
was not credible based on the normal EMG and MRI
studies from 2012. R.R. at 279.
The testimony and opinions of Employer’s
Orthopedist were straightforward and unshaken on cross
examination, R.R. at 265-95.
Employer’s Orthopedist’s diagnosis as to the
nature of the August 2012 work injury, a left thigh and
lower back strain, R.R. at 279, was consistent with
diagnostic studies performed at or in close proximity to
the original 2012 work incident.
20
Employer’s Orthopedist better explained his
rationale as to why he came to the conclusions he did
regarding the nature of the 2012 work injury. To that
end, the September 2012 MRI was normal. R.R. at 275-
76. Claimant’s Orthopedist, Claimant’s Physician, and
Dr. Sexton agreed to this fact. R.R. at 55, 120, 256.
Further, the EMG and bone scan performed early in this
case were also normal. R.R. at 276-77.
Employer’s Orthopedist credibly opined Claimant
did not suffer from piriformis syndrome based on his
explanation as to the type of diagnostic testing that would
need to be abnormal to establish this diagnosis. R.R. at
286. Here, Employer’s Orthopedist noted these tests
were performed and were normal. R.R. at 285-89.
In sum, because the record amply supports the WCJ’s bases for his credibility
determinations, we cannot disturb them. Clearly, the WCJ’s decision satisfies the
reasoned decision requirements of Section 422(a) of the Act, and the WCJ did not
capriciously disregard the evidence Claimant presented.5
Nevertheless, Claimant cites Giant Eagle, Inc. v. Workmen’s
Compensation Appeal Board (Bensy), 651 A.2d 212 (Pa. Cmwlth. 1994), for the
5
Claimant also very briefly asserts that, even assuming the surgery he underwent was
unnecessary, the WCJ capriciously disregarded his argument that unnecessary treatment is still
compensable if it would not have been undertaken “but for” the work injury. He cites J.D.
Landscaping v. Workers’ Compensation Appeal Board (Heffernan), 31 A.3d 1247 (Pa. Cmwlth.
2011), in support. In J.D. Landscaping, this Court determined that a utilization review
determination that certain medication prescribed to a decedent was unreasonable and
unnecessary was irrelevant to determining whether the decedent’s death, which occurred because
of an overdose of the medication, was causally related to his work injury. In J.D. Landscaping,
the WCJ determined that the decedent’s death was causally related to an accidental overdose of
pain medication that was prescribed for the decedent’s work-related back injury. Unlike in J.D.
Landscaping, the WCJ here rejected Claimant’s medical evidence, which indicated that
Claimant’s August 2012 work incident and work thereafter, were substantially contributing
factors to Claimant’s need for surgery. F.F. Nos. 17(b)-(c).
21
proposition that a WCJ’s decision is erroneous where a “patchwork of findings
together” results in credibility determinations that are illogical. Pet’r’s Br. at 12.
In Giant Eagle, this Court recognized that: “Where [a WCJ’s] opinion is without a
rational basis or scheme so as to be capricious, we are bound to reverse.” Id. at
218. Noting that an opinion would rarely meet those criteria, this Court explained
the particular circumstances under which the case arose:
The [WCJ] failed to set forth any findings of fact with
respect to the medical witnesses who testified. Instead,
he inexplicably states that he finds the direct testimony of
all of these witnesses as being not believable and not
credible and picks and chooses as to the credibility of
parts of testimony of other witnesses with no rhyme or
reason. The [WCJ] found that he does believe the cross-
examination testimony of Dr. Durning and Dr. Merkow,
despite the fact that there are very few relevant facts
contained in these portions of the testimony. In essence,
we can make no sense of the patchwork of credibility
findings as to portions of each individual’s testimony.
Not only do the [WCJ’s] credibility findings make no
sense, neither does his award: reinstatement of [the]
[c]laimant’s weekly benefits when none was requested;
ordering the payment of some medical benefits without
delineating which ones; awarding travel expenses
without having any evidence to make that determination
other than [the] [c]laimant’s testimony that he wanted to
be reimbursed for money spent travelling 20,000 miles to
see Dr. Merkow. We believe the findings are so
capricious that no reasonable person could have made
such findings of fact or conclusions of law. While the
Board attempted to mitigate by reversing some of the
decision’s more egregious errors, the findings tainted all
aspects of the [WCJ’s] decision. As such, we find the
decision below, as well as the bases for that decision, to
be generally not rational or intelligible.
Id. (footnote omitted).
22
The case presently before us is not akin to Giant Eagle. As explained
above, the WCJ here provided sufficient reasons for his credibility determinations,
and those reasons are supported by the record. Further, the WCJ made detailed
findings as to each witness’s testimony. Ultimately, the WCJ considered the
conflicting evidence, and he credited the evidence presented by Employer over that
presented by Claimant. This is a proper function of the WCJ as fact-finder. A & J
Builders. Thus, we reject Claimant’s argument that the WCJ’s opinion lacks a
rational basis.6
Finally, we reject Claimant’s argument that Employer’s Orthopedist’s
testimony was incompetent on the ground it was based on a “completely deficient
factual predicate.” Pet’r’s Br. at 31. Contrary to Claimant’s assertions,
Employer’s Orthopedist’s difference of opinion as to the legitimacy of a medical
condition or diagnosis, and the WCJ’s acceptance of one medical expert’s opinion
over that of another cannot serve as a basis for reversible error. Jenkins v.
Workmen’s Comp. Appeal Bd. (Woodville State Hosp.), 677 A.2d 1288 (Pa.
6
Similarly, Higgins v. Workers’ Compensation Appeal Board (City of Philadelphia), 854
A.2d 1002 (Pa. Cmwlth. 2004), also cited by Claimant, is distinguishable. There, a WCJ denied
a claimant’s modification and reinstatement petitions seeking total disability benefits, despite the
fact the claimant presented the competent medical testimony of one physician who opined the
claimant was totally disabled as well as a report of another physician who confirmed this
opinion. The employer offered no medical evidence to rebut the opinions of the claimant’s
medical experts. This Court determined the WCJ’s rationale for rejecting the claimant’s medical
testimony lacked record support, and the WCJ articulated no reason for rejecting the report of the
claimant’s other physician. Based on these clear deficiencies, we determined the WCJ's decision
did not satisfy the reasoned decision requirement.
Here, unlike in Higgins, the parties presented conflicting medical evidence on the issues
raised in the termination and review petitions. The WCJ chose to credit the testimony of
Employer’s Orthopedist over that presented by Claimant’s medical experts and properly
articulated objective reasons for doing so, which are amply supported by the record. Therefore,
Higgins is inapposite here.
23
Cmwlth. 1996). Moreover, the fact that a medical expert did not have all of a
claimant’s medical records goes to the weight of the evidence, not its competency.
Marriott Corp. v. Workers’ Comp. Appeal Bd. (Knechtel), 837 A.2d 623 (Pa.
Cmwlth. 2003).
Here, based on a physical examination, the history Claimant provided
and his review of medical records and diagnostic studies, Employer’s Orthopedist
opined, within a reasonable degree of medical certainty, that Claimant suffered a
left thigh and lower back strain from which he fully recovered. F.F. No. 8(g); R.R.
at 279-81. Employer’s Orthopedist further opined Claimant did not require any
additional medical treatment as a result of this work injury. F.F. No. 8(g); R.R. at
280. Claimant’s arguments regarding the purported incompetency of Employer’s
Orthopedist’s testimony and opinions go to the weight of the evidence, not its
competency, a matter within the WCJ’s discretion as fact-finder.
Further, this is not a case like City of Philadelphia v. Workers’
Compensation Appeal Board (Kriebel), 29 A.3d 762 (Pa. 2011), cited by Claimant.
In Kriebel, our Supreme Court held that an employer’s medical expert’s opinion
testimony was insufficient to rebut a statutory presumption of disease causation
where the expert’s opinion was based on a “series of unsubstantiated
assumptions[,]” stemming from a single notation in a 30-year old medical record.
Id. at 771. The medical expert based his entire opinion, that the decedent, a
firefighter, contracted Hepatitis C through drug use rather than during his
employment, on facts that were not warranted by the record, rendering his opinion
“nothing but conjecture and speculation[,]” and, therefore, incompetent. Id. at 772.
24
Here, unlike in Kriebel, Employer’s Orthopedist based his opinions on
the history Claimant provided, his review of medical records and diagnostic studies
and a physical examination. Unlike the expert in Kriebel, Employer’s
Orthopedist’s opinion testimony was not based on a series of unsubstantiated
assumptions, but rather on facts that are supported by the record.7
B. Litigation Costs
Claimant next asserts the WCJ awarded litigation costs based on the
WCJ’s decision to modify the description of the work injury. However, the Board
reversed that award based on the fact that Employer voluntarily amended the injury
description in its answer to Claimant’s review petition. Despite the Board’s
determination, Claimant argues, he was required to file his review petition and
“depose one or more experts” before Employer agreed to amend the description of
the injury. Pet’r’s Br. at 34. At a minimum, Claimant maintains, all costs incurred
before the date Employer filed its answer were properly awarded. Nevertheless, he
argues, Employer required him to fully litigate the review petition; as a result, the
WCJ properly awarded all costs, and the Board erred in reversing that decision.
7
Further, Claimant’s brief reference to Casne v. Workers’ Compensation Appeal Board
(Stat Couriers, Inc.), 962 A.2d 14 (Pa. Cmwlth. 2008), is puzzling. In that case, we rejected the
claimant’s argument that an employer’s medical expert’s testimony was incompetent and could
not support a termination of benefits where the claimant’s arguments went merely to the
credibility of the witness and not the competency of the witness’s testimony. Absent further
explanation, we fail to see how Casne aids Claimant’s argument here.
25
Section 440(a) of the Act, 77 P.S. §996(a),8 authorizes an award of
litigation costs to a claimant who prevails in whole or in part. That Section states,
in relevant part (with emphasis added):
In any contested case where the insurer has contested
liability in whole or in part … the employe[e] … in
whose favor the matter at issue has been finally
determined in whole or in part shall be awarded, in
addition to the award for compensation, a reasonable sum
for costs incurred for … witnesses, necessary medical
examination, and the value of unreimbursed lost time to
attend the proceedings ….
Id.
“This Court has consistently held that a claimant must prevail on the
contested issue in order to be awarded litigation costs.” Reyes v. Workers’ Comp.
Appeal Bd. (AMTEC), 967 A.2d 1071, 1078 (Pa. Cmwlth. 2009) (en banc)
(quoting Jones v. Workers’ Comp. Appeal Bd. (Steris Corp.), 874 A.2d 717, 721
(Pa. Cmwlth. 2005)).
Here, the WCJ awarded litigation costs on the ground that Claimant
was successful, in part, on his review petition. Specifically, although the WCJ
granted Employer’s termination petition and denied Claimant’s review petition to
the extent Claimant sought to expand the description of the recognized work injury
to include trochanteric bursitis, piriformis syndrome, groin strain, herniated disc,
lumbar radiculopathy and/or failed back syndrome, the WCJ did expand the injury
description to include a left thigh strain.
8
Section 440 was added by the Act of February 8, 1972, P.L. 25, as amended.
26
However, as the Board correctly determined, the issue of whether the
description of Claimant’s injury should be amended to include a left thigh strain
was not contested before the WCJ. Indeed, in its answer to Claimant’s review
petition, Employer expressly agreed to expand the description of the injury to
include a left thigh strain. R.R. at 17. Also, Employer did not contest the left thigh
strain in the litigation before the WCJ. Indeed, Employer’s Orthopedist expressly
opined that Claimant’s work injury included a left thigh strain. R.R. at 279.
Further, despite seeking to amend the injury description to include a left thigh
strain, none of Claimant’s medical experts opined that Claimant had such an
injury. Additionally, contrary to Claimant’s argument, none of Claimant’s medical
experts were deposed prior to the date Employer filed its answer to Claimant’s
review petition. Indeed, Employer filed its answer to Claimant’s review petition
on the same date Claimant filed the review petition. R.R. at 11-15, 16-19.
In short, because Claimant did not prevail on any issue that was
contested in the litigation before the WCJ, he was not entitled to litigation costs.
See Reyes (where claimant did not prevail on any disputed issue, he was not
entitled to litigation costs); see also Watson v. Workers’ Comp. Appeal Bd.
(Special People in the Northeast), 949 A.2d 949 (Pa. Cmwlth. 2008) (same). As
such, the Board correctly reversed the WCJ’s award of litigation costs.
27
Based on the foregoing, we affirm the order of the Board.9
ROBERT SIMPSON, Judge
9
Claimant also asserts the Board capriciously disregarded his argument that the
proceedings on the termination and review petitions at issue here should have been consolidated
with Claimant’s claim petition (alleging an aggravation of his August 2012 work injury) in order
to permit consideration of all evidence and arguments in the proper context and to avoid
inconsistent outcomes. However, our review of Claimant’s appeal to the Board reveals Claimant
did not raise this issue to the Board. R.R. at 360-68. Thus, it is not surprising that the Board did
not address this issue in its opinion. As such, this issue is waived. See McGaffin v. Workers’
Comp. Appeal Bd. (Manatron, Inc.), 903 A.2d 94 (Pa. Cmwlth. 2006).
In any event, even if not waived, a WCJ’s decision as to whether to consolidate related
actions is discretionary, not mandatory. 34 Pa. Code §131.30(a) (“Where proceedings involve a
common question of law or fact, the judge may consolidate the proceedings for hearing on all
matters in issue, and may make any appropriate orders concerning the conduct of the
proceedings to avoid any unnecessary costs or delay.”). Here, the WCJ denied Claimant’s oral
motion to consolidate the proceedings on Claimant’s claim petition with the proceedings on
Employer’s termination petition and Claimant’s review petition because consolidation would
delay the proceedings on Employer’s termination petition. Certified Record, WCJ’s Hr’g, Notes
of Testimony, 2/9/15, at 8. In his brief to this Court, Claimant offers no direct response to the
WCJ’s decision to deny his request for consolidation on this basis.
In addition, Claimant requests a remand for consideration of his review petition and
Employer’s termination petition by a different WCJ based on his argument above that the WCJ’s
decision contained “significant omissions” and that the WCJ “ignored inconsistencies” and
showed a “misapprehension of the reasons why [C]laimant presented certain evidence.” Pet’r’s
Br. at 36. To that end, Claimant again argues the WCJ’s decision contains a “SCHEME of
credibility determinations that are inconsistent with the overwhelming weight of the evidence
and inescapably tainted by a distorted concept of the evidentiary record as a whole.” Id.
Because, as explained above, the WCJ adequately explained the bases for his credibility
determinations and those bases are amply supported by the record, we reject Claimant’s request
for remand to a different WCJ.
28
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael Terrinoni, :
Petitioner :
:
v. : No. 1792 C.D. 2016
:
Workers' Compensation Appeal :
Board (Wawa, Inc.), :
Respondent :
ORDER
AND NOW, this 4th day of April, 2017, the order of the Workers’
Compensation Appeal Board is AFFIRMED.
ROBERT SIMPSON, Judge