IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Phillips Enterprise, Inc., :
Petitioner :
:
v. : No. 152 C.D. 2017
: Submitted: July 7, 2017
Workers’ Compensation Appeal :
Board (Constrisciani), :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge (P.)
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: November 8, 2017
Phillips Enterprise, Incorporated (Employer) petitions for review of the
adjudication of the Workers’ Compensation Appeal Board (Board) that granted the
claim petition of Andrew Constrisciani (Claimant). In doing so, the Board affirmed
the decision of the Workers’ Compensation Judge (WCJ). Employer contends that
the WCJ disregarded substantial, competent evidence, relied upon an incompetent
expert medical opinion, and did not issue a reasoned decision. Discerning no merit
to these claims of error, we affirm the Board.
On February 4, 2015, Claimant filed a claim petition alleging that he
suffered a work-related injury when a pipe fell on his head at Employer’s
construction site on June 25, 2014. Employer filed an answer denying the material
allegations of Claimant’s petition, and the matter was assigned to a WCJ.
Before the WCJ, Claimant testified that he did construction work for
Employer, which included, inter alia, installing dry wall, ceilings and concrete work.
He worked 40 to 54 hours a week. He explained that on June 25, 2014, he and a co-
worker were unloading corrugated plastic pipe from a truck when a pipe fell on
Claimant’s head. Claimant was wearing a hard hat. Claimant testified that he
immediately felt a burning, “[l]ike a torch[,]” on the back of his neck. Notes of
Testimony (N.T.), 3/4/2015, at 13; Reproduced Record at 67a (R.R. __). He reported
the incident to William Phillips, Employer’s vice-president, and worked the
remainder of his shift.
In July of 2014, Claimant saw his primary physician for persistent neck
pain, for which he was prescribed steroids. Claimant continued to have pain in his
neck, which caused him to have difficulty sleeping. Nevertheless, Claimant worked
until January 2015, when he was laid off by Employer. Because Claimant continued
to experience pain in his neck, Claimant met with an orthopedic surgeon, Dr. Richard
Levenberg, who referred him to another specialist that treated him with epidural
injections. Claimant acknowledged that he had “a little arthritis” in his neck before
the incident at work. N.T., 3/4/2015, at 23; R.R. 77a.
Claimant introduced the deposition testimony of Gerald E. Dworkin,
D.O., who focuses on acute and persistent pain of the spine and neck. On referral
from Dr. Levenberg, Dr. Dworkin saw Claimant for his neck pain on January 15,
2015. Claimant explained to Dr. Dworkin that he was moving large 20-foot-long
corrugated pipes, 18 inches in circumference, from a truck when one pipe struck him
on the head. This caused a severe burning in the base of his neck as well as arm
pain. Dworkin Deposition at 11; R.R. 100a.
Dr. Dworkin did a physical evaluation and reviewed a July 10, 2014,
magnetic resonance imaging (MRI) of Claimant’s cervical spine. The MRI showed
that Claimant “had two segments of significant injury, one at C5-6, which
demonstrated a disc herniation extending more to the left than the right at the
2
foramina, and he had another significant disc bulge, post-traumatic disc bulge, with
some component of spondylosis, which created foraminal narrowing on the right
side at C6-7.” Id. at 14; R.R. 103a.
Dr. Dworkin diagnosed Claimant with “cervical radiculopathy on
clinical exam, and secondary to two-level disc injuries at C5-6 with disc herniation
and C5-6 with post-traumatic disc bulging and foraminal narrowing.” Id.; R.R.
103a. He opined that these conditions were “caused by the trauma that occurred
when the large pipes smacked him in the head in June of 2014.” Id. at 15; R.R. 104a.
In so opining, Dr. Dworkin noted that Dr. Levenberg’s records “were compatible
with [his] findings, a severe axial trauma to the top of his head and cervical spine.”
Id.; R.R. 104a. Dr. Levenberg also opined that Claimant’s injuries were “traumatic
disc herniations at C5-6 and C6-7.” Id. at 16; R.R. 105a.
Dr. Dworkin testified about an EMG/nerve conduction study he did on
April 9, 2015. He sampled both Claimant’s right and left sides in multiple muscles
and found an abnormality in the right bicep muscle. It “showed abnormal
spontaneous activity indicating radiculopathy and some form of nerve injury at the
C5-6 nerve roots, and the corresponding abnormalities in the muscles of the neck,
again, indicating that the site of injury was within the spine itself.” Id. at 20; R.R.
109a.
On cross-examination, Dr. Dworkin stated that he had not reviewed the
medical records from Claimant’s primary care physicians. He first attributed
Claimant’s trauma to lifting the piping but later concluded that Claimant’s injury
was caused by the pipe falling on Claimant’s head because the “C5-6 segment has
injury consistent with focal trauma in that the contour change in the disc is abnormal
or protruding or herniated in an asymmetric manner, which indicates that there was
3
some sort of acute force causing the trauma, the herniation, and it extends into the
foramina.” Id. at 29; R.R. 118a. Dr. Dworkin further explained that the abnormal
disc bulge at C6-7 was consistent with an acute injury. When asked if it was possible
that these disc bulges could be degenerative in nature, Dr. Dworkin stated:
the C5-6 injury is a recent acute injury, with no underlying pre-
trauma abnormalities. The C6-7 level does indicate that there is
disc bulging, but that there is some spondylosis or extra bone that
is associated with it, so there may have been some degree of
spondylosis or arthritis in that segment. It is possible that he had
some underlying arthritic changes there, which would be normal
for a 50-year-old gentleman, especially with his line of work, but
he was asymptomatic prior to being hit on the top of the head, so
that would indicate that there may have been some aggravation
of that spondylosis.
Id. at 29-30; R.R. 118a-19a (emphasis added). When questioned about whether his
opinion would change if Claimant’s description of the work injury was false, Dr.
Dworkin testified that Claimant had
unequivocal abnormalities at two different spine levels thought
by Dr. Levenberg to be herniations. I agreed with that. These
are abnormalities that have been caused by something, and if it
is found that he was not struck on the top of his head, I would be
somewhat hard-pressed to come up with a reason for their
existence.
Id. at 32; R.R. 121a (emphasis added).
In response to Claimant’s case, Employer presented the testimony of
Jim Phillips, who is the president and sole owner of Employer. Phillips testified that
he first learned about Claimant’s alleged injury four weeks after Claimant was laid
off. William Phillips, who is Employer’s vice-president and a union operator, also
testified. He explained that he was at the job site on June 25, 2014, operating a
4
backhoe. Claimant did not tell him that he was hurt that day. William Phillips did
not learn about Claimant’s injury until April of 2015.
Employer introduced the deposition testimony of its expert, Dennis P.
McHugh, D.O., who is board-certified in orthopedic surgery. On April 13, 2015, he
did an independent medical examination of Claimant. Claimant told him that on
June 25, 2014, he injured his neck when moving a plastic pipe from the back of a
truck, which hit him on the head. Claimant stated that he had instantaneous neck
pain, as well as pain that radiated into his shoulder blades and into his arms.
Nevertheless, Claimant continued to work full time for several months thereafter.
Dr. McHugh diagnosed Claimant as “symptomatic with the cervical
herniations or cervical spine at the C5-6 and C6 level with the discs.” McHugh
Deposition at 15; R.R. 189a. As to causation, Dr. McHugh testified that “more
documentation was necessary to determine within a reasonable degree of medical
certainty the etiology or cause of the cervical pathology ….” Id.; R.R. 189a.
Subsequently, Dr. McHugh received copies of the records from
Claimant’s treating physicians. He noted that for three years, Claimant was being
treated for cervical spine and neck pain. Regarding causation, Dr. McHugh testified
as follows:
From what I can see, [Claimant] had a work incident. He then
went to see his family’s physician about a week later. He doesn’t
describe the work injury. He just states that his neck has been
bothering him and hurting him. At that point in time, it also
needs to be clarified that [Claimant] had been seeing that same
family doctor for approximately three years with the same type
of complaints being treated with X rays, medications, [and]
therapy programs.
So first and foremost, I guess, there clearly is a preexisting
pathology. There’s preexisting pathology that is symptomatic.
There’s a preexisting pathology that was symptomatic enough
5
that his family doctor treated him and treated him for three years,
and when this alleged work incident occurred, the first medical
provider that he sees, he doesn’t give that as his history. He then
continues to work for approximately 6 months before he starts to
seek medical attention for that.
In my professional opinion as an orthopedic surgeon, that would
raise concerns as to causation.
Id. at 22; R.R. 196a (emphasis added).
On cross-examination, Dr. McHugh acknowledged that being hit in the
head with a pipe could cause disc herniation. He also acknowledged that a herniation
can enlarge following an acute trauma and that a trauma can aggravate degenerative
disc disease.
On rebuttal, Claimant elaborated on the mechanism of injury. Claimant
also testified that he had been treating with Drs. Traverso and Bassilios because of
arthritis in his neck.
The WCJ granted the claim petition. In her decision, the WCJ found
the testimony of Claimant and Dr. Dworkin credible. The WCJ set forth her reasons
for finding the testimony of Dr. Dworkin more credible and persuasive than that of
Dr. McHugh, explaining:
Dr. Dworkin is and has been [] Claimant’s treating physician in
contrast to Dr. McHugh as an evaluating physician for
[Employer], because Dr. Dworkin has a greater familiarity with
[] Claimant’s conditions than Dr. McHugh on the basis of Dr.
Dworkin’s several evaluations of [] Claimant’s conditions on
several dates in contrast to Dr. McHugh’s evaluation of []
Claimant on 1 date, because the results of the diagnostic tests of
[] Claimant and particularly the Magnetic Resonance Imaging
(MRI) and electromyogram (EMG)/nerve conduction study
(NCS) support Dr. Dworkin’s opinions about the diagnoses,
because Dr. Dworkin gave rational [] explanations about the
causation of the diagnoses conditions and particularly with
respect to the physical characteristics of the disc conditions, and
6
because Dr. McHugh didn’t credibly refute Dr. Dworkin’s
testimony about the causation of the disc conditions on the basis
of the physical characteristics of the disc conditions.
WCJ Decision, 2/1/2016, at 3, Finding of Fact (F.F.) No. 2 (emphasis added).
Employer appealed to the Board. It asserted that the WCJ did not issue
a reasoned decision and that the decision was not based on competent substantial
evidence. The Board affirmed the decision of the WCJ. Thereafter, Employer
petitioned for this Court’s review.
On appeal,1 Employer raises several issues.2 First, it contends that the
WCJ did not issue a reasoned decision. Second, it contends that the WCJ’s findings
of fact are not supported by substantial evidence. Third, it contends that the WCJ’s
findings of fact are based upon incompetent evidence. Fourth, it contends that the
WCJ capriciously disregarded evidence. Fifth, it contends that the WCJ’s decision
offends public policy. We consider these issues seriatim.
Reasoned Decision
Employer contends that the WCJ did not issue a reasoned decision. It
follows, therefore, that Claimant did not establish a work-related injury.
Section 422(a) of the Workers’ Compensation Act (Act)3 states that all
parties 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
1
Our review determines “whether there has been a violation of constitutional rights, errors of law
committed, [or] board procedures violated, or whether necessary findings of fact are supported by
substantial evidence.” Reed v. Workers’ Compensation Appeal Board (Allied Signal, Inc.), 114
A.3d 464, 468 n.3 (Pa. Cmwlth. 2015). Additionally, when raised, this Court will review for
capricious disregard of evidence. Id.
2
For purposes of this opinion, we have consolidated Employer’s arguments.
3
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
7
how a particular result was reached.” Section 422(a) of the Act, 77 P.S. §834.
Accordingly, the WCJ “shall specify the evidence upon which the [WCJ] relies and
state the reasons for accepting it in conformity with this section.” Id. A decision is
reasoned “if it allows for adequate review by the [Board] without further elucidation
and if it allows for adequate review by the appellate courts under applicable review
standards.” Daniels v. Workers’ Compensation Appeal Board (Tristate Transport),
828 A.2d 1043, 1052 (Pa. 2003).
Claimant testified before the WCJ about his work injury; his symptoms;
and his notice to Employer. The WCJ had the opportunity to assess Claimant’s
demeanor and found him credible. “[A] WCJ’s observation of a witness’s demeanor
alone is sufficient to satisfy the reasoned decision requirement.” Amandeo v.
Workers’ Compensation Appeal Board (Conagra Foods), 37 A.3d 72, 77 (Pa.
Cmwlth. 2012). That Employer does not agree with the WCJ’s credibility decision
does not mean the WCJ’s decision was not a reasoned one.
The WCJ also found Claimant’s medical expert credible and more
persuasive than Employer’s expert on Claimant’s cervical disc disease and the
causation thereof. The WCJ summarized Dr. Dworkin’s deposition testimony and
identified the objective factors that led the WCJ to credit his opinion. First, Dr.
Dworkin had been Claimant’s treating physician and, thus, had more familiarity with
Claimant. Second, diagnostic tests, particularly the MRI and EMG/nerve
conduction study, supported Dr. Dworkin’s opinion and diagnoses, particularly with
respect to the causation of the disc problems by trauma.
Likewise, the WCJ explained her reasons for concluding that Dr.
McHugh did not refute Dr. Dworkin’s causation opinion. Dr. McHugh was not
Claimant’s treating physician and saw him once. See School District of
8
Philadelphia v. Workers’ Compensation Appeal Board (Hilton), 84 A.3d 372, 375
(Pa. Cmwlth. 2014) (“[I]t is well established that ‘greater credence may be given to
the testimony of a treating physician than to a physician who examines simply to
testify for litigation purposes.’” (quoting D.P. “Herk” Zimmerman, Jr.,
Incorporated v. Workmen’s Compensation Appeal Board (Himes), 519 A.2d 1077,
1080 (Pa. Cmwlth. 1987)). Further, there were no diagnostic tests that supported
Dr. McHugh’s opinion.
The WCJ identified the evidence she accepted, the evidence she
rejected, and her reasons therefor. The WCJ’s explanations for her credibility
determinations do not leave the court imagining “why the WCJ believed one witness
over another.” Dorsey v. Workers’ Compensation Appeal Board (Crossing
Construction Company), 893 A.2d 191, 196 (Pa. Cmwlth. 2006), appeal denied, 916
A.2d 635 (Pa. 2007). The WCJ’s decision provides a reasonable basis for our
appellate review and, thus, satisfies the reasoned decision requirement of Section
422(a) of the Act.
Substantial Evidence
Next, Employer argues that the WCJ’s decision was not supported by
substantial evidence because:
Claimant did not sustain a work injury; has no medical proof of
an acute injury; did not contemporaneously document any
medical allegation of a work injury; did not make any allegation
of a work injury until many months later; continued to work for
many months in a full unrestricted duty capacity until laid off;
did not provide medical records to his medical expert, Dr.
Dworkin; blatantly lied to the Judge’s face about his prior and
ongoing symptomatic cervical condition; had an MRI ordered for
his pre-existing non-work related arthritis condition that Dr.
Dworkin attempted to convert to a work injury; gave different
accounts of the “mechanism of injury” to almost every person he
talked to, including the Judge on two occasions; and produced no
9
evidence other than his extremely questionable testimony of
corroborating witnesses for the alleged injury event; on which
his stories changed over the course of two testimonies as well.
Employer’s Brief at 36 (emphasis added). Claimant responds that Employer’s
disagreement with the WCJ’s findings and credibility determinations are not grounds
for reversal.
Substantial evidence is such relevant evidence as a reasonable mind
might accept to support a finding of fact. Berardelli v. Workmen’s Compensation
Appeal Board (Bureau of Personnel State Workmen’s Insurance Fund), 578 A.2d
1016, 1018 (Pa. Cmwlth. 1990). In evaluating a substantial evidence challenge, the
court may not reweigh the evidence or credibility determinations. Bethenergy
Mines, Inc. v. Workmen’s Compensation Appeal Board (Skirpan), 612 A.2d 434,
437 (Pa. 1992). Additionally, “[the Court] 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.” A & J Builders, Inc. v. Workers’ Compensation Appeal
Board (Verdi), 78 A.3d 1233, 1239 (Pa. Cmwlth. 2013). Finally, “[i]t 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 Mechanical v. Workers’ Compensation Appeal Board (Floyd),
933 A.2d 1095, 1101 (Pa. Cmwlth. 2007) (quoting Minicozzi v. Workers’
Compensation Appeal Board (Industrial Metal Plating, Inc.), 873 A.2d 25, 29 (Pa.
Cmwlth. 2005)). With these principles in mind, we consider Employer’s arguments.
The WCJ explained her findings of fact as follows:
The record, particularly the credible testimony of Dr. Dworkin
and [] Claimant, established that [] Claimant had a work injury
in the course of his employment with [Employer] on June 25,
2014 and a resultant total disability since January 15, 201[5],
specifically the date of Dr. Dworkin’s first evaluation of []
10
Claimant. The record, particularly Dr. Dworkin’s testimony,
established that the nature of [] Claimant’s work injury is:
significant neck and right arm pain, right sided cervical
radiculopathy, 2 level disc injuries at the levels of C5-6 with disc
herniation and narrowed foramen, painful syndrome, and disc
bulge at the levels of C6-7.
WCJ Decision, 2/1/2016, at 11, F.F. No. 36. She explained her credibility
determinations as follows:
… Claimant is credible to an extent, specifically the occurrence
of the alleged work injury and lack of capability for the
performance of his pre-injury job, on the basis of his demeanor
during his testimony at a hearing before the Judge. Dr. Dworkin
is more credible and more persuasive than Dr. McHugh with
respect to the diagnoses of [] Claimant’s conditions and
causation because Dr. Dworkin is and has been [] Claimant’s
treating physician in contrast to Dr. McHugh as an evaluating
physician for [Employer], because Dr. Dworkin has a greater
familiarity with [] Claimant’s conditions than Dr. McHugh on
the basis of Dr. Dworkin’s several evaluations of [] Claimant’s
conditions on several dates in contrast to Dr. McHugh’s
evaluation of [] Claimant on 1 date, because the results of the
diagnostic tests of [] Claimant and particularly the Magnetic
Resonance Imaging (MRI) and electromyogram (EMG)/nerve
conduction study (NCS) support Dr. Dworkin’s opinions about
the diagnoses, because Dr. Dworkin gave rational[] explanations
about the causation of the diagnoses conditions and particularly
with respect to the physical characteristics of the disc conditions,
and because Dr. McHugh didn’t credibly refute Dr. Dworkin’s
testimony about the causation of the disc conditions of the basis
of the physical characteristics of the disc conditions.
Id. at 3, F.F. No. 2 (emphasis added). The Board affirmed the WCJ. The Board
acknowledged the evidence that Claimant had been treated for neck and upper back
pain prior to the work accident. Nevertheless, “the WCJ specifically found that
while Claimant did, in fact, have preexisting neck issues, there was no evidence that
he suffered from any radicular right arm symptoms prior to the work incident, or had
11
symptoms to the same extent as he did after June 25, 2014.” Board Adjudication at
6-7.
The WCJ considered Employer’s testimony and documentary evidence,
but she rejected it. It is our task to determine, viewing the record in the light most
favorable to Claimant, whether the record contains substantial evidence to support
the WCJ’s findings. Employer’s arguments about the sufficiency of the evidence go
to the weight and credibility of the evidence. “[T]he WCJ, as fact-finder, has
complete authority over questions of witness credibility and evidentiary weight.”
Verizon Pennsylvania Inc. v. Workers’ Compensation Appeal Board (Mills), 116
A.3d 1157, 1162 (Pa. Cmwlth. 2015).
Employer argues that there is no proof of a work injury. It asserts that
Claimant continued to work, did not seek medical treatment for his alleged work
injury and did not report a work injury until he was laid off. However, the WCJ
credited Dr. Dworkin’s testimony on Claimant’s disc herniations and their cause. A
delay in seeking treatment for a work injury does not render a claimant’s testimony
incompetent because an injury may develop over a period of time. See Curran v.
Workmen’s Compensation Appeal Board (Maxwell Industries), 664 A.2d 667, 670
(Pa. Cmwlth. 1995). Further, the WCJ credited Claimant’s testimony that he did
report the accident on the day it occurred.
Employer asserts that Claimant has given conflicting accounts of the
“mechanism of injury,” which renders the WCJ’s finding on that issue not supported
by substantial evidence. Employer, however, does not identify those specific
portions of Claimant’s testimony which are allegedly inconsistent; instead,
Employer summarily states “[n]owhere in the record does Claimant get his own
injury story straight.” Employer’s Brief at 33.
12
Regarding the mechanism of injury, Claimant testified, in relevant part:
Me and a teamster, Kevin Dougherty, we went up to King of
Prussia to [a store ….] They sell the big pipe. And we loaded
that on the truck ….
***
[We] went to unload [the pipe], put a sling around it. It wouldn’t
come out, so then me and the teamster jumped in the truck, tried
to get it out because it was all corrugated and they were all
jammed in together. So he jumped down. I wiggled between the
pipe and the truck. I’m in the back of the truck. And I pushed
up, got it out. And as we were pulling it out, we had the sling on
it. When he pulled down, it went up. So he put all the pressure
down. That’s when it came down on my head.
N.T., 3/4/2015, at 11-12; R.R. 65a-66a.4 Subsequently, when recalled to testify
about his work injury, Claimant stated:
Well, at first, [the pipe] wouldn’t come out of the truck. The
teamster got down. Then I stayed up there and got underneath
the --- underneath the pipe and in-between the bay. And popped
it out in the corner, because it was in like this (indicating).
It was like eight foot of it sticking out of the bed. And I popped
it out. Then he started pulling it, which got it going fine. It was
flat on the tailgate. And we were kind of just --- I was picking it
up and pushing it, because it wouldn’t slide.
And then all of [a] sudden --- halfway through the bay, when I -
-- when I went to push up, he went down and I stuck it all the
way up. And then he came up with the bucket off the tailgate. It
was in my hands. And that[’s] when it came out of my hands and
hit me in the head.
4
Claimant testified that both Kevin Dougherty and William Phillips were present at the time the
pipe was unloaded from the truck. N.T., 3/4/2015, at 13-14; R.R. 67a-68a.
13
N.T., 10/7/2015, at 6-7; R.R. 240a-41a.5 Claimant’s testimony regarding the
mechanism of injury is not inconsistent.
Nor does his account conflict with what he told Dr. Dworkin. Claimant
told Dr. Dworkin that he was lifting large pipes from the back of a truck, which “fit
fairly tight in the back of the tru[c]k bay.” Dworkin Deposition at 10-11; R.R. 99a-
100a. Accordingly, Claimant and another individual “were lifting and pushing the
pipe, and the back end where he was underneath the back end of the pipe, and it
suddenly tipped and struck him violently in the head.” Id. In sum, Claimant has
consistently stated that a pipe hit him on the head while unloading it from the truck.
Employer contends that there was no objective evidence that Claimant
suffered any injury at work on June 25, 2014. However, the WCJ found that
diagnostic tests for Claimant, and particularly the July 2014 MRI and EMG/NCS,
supported Dr. Dworkin’s opinion about the trauma that occurred in June of 2014.
The WCJ’s finding is supported by substantial evidence.
Employer next asserts Claimant was not truthful about his prior cervical
condition and notes that Dr. Dworkin was unfamiliar with this medical history.
Further, the WCJ did not credit the testimony of Claimant and Dr. Dworkin with
respect to Claimant’s prior cervical treatment history. This latter finding does not
render the remainder of their testimony not credible. This is so because the WCJ “is
free to accept or reject the testimony of any witness, including a medical witness, in
whole or in part.” Williams v. Workers’ Compensation Appeal Board (USX Corp. –
Fairless Works), 862 A.2d 137, 143 (Pa. Cmwlth. 2004).
Employer contends that substantial evidence does not support the
WCJ’s finding that Claimant sustained a work injury because Claimant did not call
5
Additionally, Claimant stated that he was working with Paul Fellows, Gene Short and Kevin
Dougherty on the day he was injured. N.T., 10/7/2015, at 5-6; R.R. 239a-240a.
14
his primary care physicians, Drs. Busillo and Traverso, as witnesses to testify. To
the extent that Employer is asserting the “missing witness rule,” which permits an
adverse inference, it applies only “where the uncalled witness is peculiarly within
the reach and knowledge of only one of the parties.” Wood v. Workers’
Compensation Appeal Board (Country Care Private Nursing), 915 A.2d 181, 187
(Pa. Cmwlth. 2007). Drs. Busillo and Traverso were available to both parties to the
litigation. Employer could have deposed Drs. Busillo and Traverso, but it chose not
to do so.
Finally, Employer contends that the WCJ’s finding on its notice of
Claimant’s alleged work injury is not supported by substantial evidence. In support,
it notes that its witnesses “testified unequivocally – unrebutted – that they were never
made aware of any alleged work injury for June 25, 2014, and knew nothing about
an alleged work injury right up until after a Claim Petition was filed months later,
and they were served with a copy.” Employer’s Brief at 34. However, their
statements were rebutted. Claimant testified that he told Employer about his work
injury, and the WCJ found Claimant’s testimony more credible and persuasive than
that of Employer’s witnesses, a determination within her exclusive province as fact-
finder. It is irrelevant whether the record contains evidence to support findings other
than those made by the WCJ. Furnari v. Workers’ Compensation Appeal Board
(Temple Inland), 90 A.3d 53, 60 (Pa. Cmwlth. 2014). In short, Claimant’s credited
testimony supports the WCJ’s finding that Employer received timely notice of
Claimant’s work injury.
Incompetent Evidence
Employer contends that the WCJ erred because she relied upon Dr.
Dworkin’s expert opinion, which was not competent. Employer challenges the
15
competency of Dr. Dworkin’s testimony because he had not studied all of Claimant’s
medical records.
This Court has explained that “a medical expert’s opinion is not
rendered incompetent unless it is based solely on inaccurate information.” Pryor v.
Workers’ Compensation Appeal Board (Colin Service Systems), 923 A.2d 1197,
1203 (Pa. Cmwlth. 2006). Further, “[t]he fact that a medical expert does not have
all of a claimant’s medical records goes to the weight given the expert’s testimony,
not its competency.” Id. (quoting Marriott Corp. v. Workers’ Compensation Appeal
Board (Knechtel), 837 A.2d 623, 631 n.10 (Pa. Cmwlth. 2003)).
To arrive at his opinion regarding Claimant’s work injuries, Dr.
Dworkin reviewed Dr. Levenberg’s records, the MRI films of the cervical spine
taken on July 10, 2014, and an x-ray report. In addition, Dr. Dworkin conducted an
EMG/NCS. Further, Dr. Dworkin did a physical examination of Claimant and has
treated Claimant for neck pain since January 2015. Although Dr. Dworkin did not
review all of Claimant’s medical history, such as the medical records from
Claimant’s primary physician, this goes to the weight of his testimony not its
competency. See Pryor, 923 A.2d at 1203.
It is undisputed that Dr. Dworkin took a recitation from Claimant about
the work accident. The record shows that Claimant has consistently stated that a
pipe hit him on the top of his head. Thus, we cannot conclude that the description
provided by Claimant to Dr. Dworkin was false nor can we conclude that Dr.
Dworkin’s opinion was dependent on inaccurate information that would render it
incompetent.
Capricious Disregard of Evidence
16
Employer argues that the WCJ disregarded evidence of record.
Specifically, Employer contends that the WCJ ignored the facts that Claimant made
untrue statements;6 that medical records were withheld; that Claimant’s doctor did
not know about his medical history; that there was no contemporaneous medical
proof of a work injury; that the contemporaneous medical records contradict the
allegation of a work injury; that the medical records show pre-existing degenerative
issues and not an acute or traumatic injury; and that Claimant’s statements about the
mechanism of injury were not consistent. Employer’s Brief at 28. Claimant
responds that the WCJ “considered, reviewed, and weighed all the evidence of
record from both parties.” Claimant’s Brief at 25. We agree.
“A capricious disregard of evidence occurs only when the fact-finder
deliberately ignores relevant, competent evidence.” Williams, 862 A.2d at 145.
“[W]here there is substantial evidence to support an agency’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’ Compensation Appeal Board
(Marlowe), 812 A.2d 478, 487 n. 14 (Pa. 2002).
Here, the WCJ did not ignore the evidence of record as evidenced by
her extensive summation of the evidence in this matter. The WCJ summarized the
testimony of each witness, including the experts, and detailed that evidence she
found credible and that which she rejected as not credible, and the reasons she made
6
Employer argues that Claimant “lied to [the WCJ’s] face” about his prior cervical treatment
history. Claimant was asked if he had any prior neck injuries:
Q. “Andrew, have you had any neck injuries before?”
A. “No. Never.”
N.T., 3/4/15 at 23; R.R. 77a. Employer asserts that this statement is patently false. Employer
understands “injury” to mean medical condition. Claimant may have understood it to refer to neck
trauma. The factfinder resolved the ambiguity in favor of Claimant.
17
such determinations. “Such an express consideration and rejection, by definition, is
not capricious disregard.” Williams, 862 A.2d at 145.
Public Policy
Finally, Employer contends that the WCJ’s decision to credit
Claimant’s testimony offends public policy because
Claimant lied to [the WCJ]; hid his medical records; gave
inconsistent stories of an alleged mechanism of injury; produced
no independent corroborative evidence of any witnesses to the
alleged incident; and produced no actual competent medical
evidence to show he sustained an acute injury, rather than
continuing to treat for his pre-existing non-work related
degenerative cervical condition.
Employer’s Brief at 37-38. Claimant responds that Employer’s assertions constitute
no more than “vague and meritless smoke screens[.]” Claimant’s Brief at 28.
Although termed as a public policy argument, Employer really
challenges the WCJ’s credibility and factual determinations. “[T]he WCJ, as fact-
finder, has complete authority over questions of witness credibility and evidentiary
weight.” Verizon, 116 A.3d at 1162. On appeal, this Court will not “reweigh the
evidence or [ ] review the credibility of witnesses.” Bethenergy Mines, 612 A.2d at
437. Accordingly, we reject Employer’s public policy argument.
Conclusion
For the above-stated reasons, we affirm the order of the Board.
______________________________________
MARY HANNAH LEAVITT, President Judge
18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Phillips Enterprise, Inc., :
Petitioner :
:
v. : No. 152 C.D. 2017
:
Workers’ Compensation Appeal :
Board (Constrisciani), :
Respondent :
ORDER
AND NOW, this 8th day of November, 2017, the order of the Workers’
Compensation Appeal Board dated January 13, 2017, is hereby AFFIRMED.
______________________________________
MARY HANNAH LEAVITT, President Judge
Phillips Enterprise, Inc. v. WCAB (Constrisciani)
Combined Opinion