IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kathy Hammill Becht, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal Board :
(Daqle Holdings, LLC, Cincinnati :
Insurance Company and Panera Bread), : No. 1655 C.D. 2017
Respondents : Submitted: May 4, 2018
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: August 3, 2018
Kathy Hammill Becht (Claimant) petitions for review of an order by
the Workers’ Compensation Appeal Board (Board) affirming the decision and order
of Workers’ Compensation Judge Carmen Lugo (WCJ) dismissing Claimant’s
Claim Petition for Compensation Benefits (Claim Petition) and Petition to Reinstate
Compensation Benefits (Reinstatement Petition) filed against Daqle Holdings,
LLC/Panera Bread (Employer) pursuant to the Workers’ Compensation Act1
(Act). We affirm in part, vacate in part, and remand for further findings.
On May 4, 2010, while working for Employer as a director of
operations, Claimant sustained an L4-L5 spinal injury that required surgical
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
intervention in the form of a lumbar spinal fusion at L4-L5. Claimant received
workers’ compensation (WC) benefits as a result of this work injury.
On January 29, 2014, Employer filed a petition to terminate Claimant’s
WC benefits. In support of this petition, Employer presented the deposition
testimony of Gerard J. Werries, M.D., who had conducted an independent medical
examination of Claimant. Dr. Werries opined that Claimant had fully recovered
from her work injury and subsequent surgical fusion at L4-L5, and that Claimant’s
“mild adjacent arthritic changes at L3-[L]4 . . . were not as a result of the surgery . .
. [but instead] due to the natural progression of arthritis at that level versus stress
from the previous fusion site.” WCJ Decision and Order dated October 29, 2014
(2014 WCJ Decision) at 4. The WCJ found Dr. Werries’ testimony credible and,
based thereon, issued the 2014 WCJ Decision finding that Claimant’s L4-L5 fusion
was solid, that she was fully recovered from her May 4, 2010 work injury, and that
the natural progression of existing natural arthritis caused her spinal stenosis at L3-
L4, not the work injury or the L4-L5 fusion. See 2014 WCJ Decision at 4-
5. Accordingly, the WCJ terminated Claimant’s WC benefits. Id. at 5. Claimant
appealed and the Board affirmed by opinion dated December 8, 2015 (2015 Board
Opinion). Claimant did not appeal the 2015 Board Opinion to this Court.
After the termination of her WC benefits in October 2014, Claimant
returned to work and regular duty. She continued, however, to seek medical
attention for symptoms, including occasional steroid injections in her lower back
from David M. Babins, M.D., with the last of these injections occurring on March 5,
2015.
On March 18, 2015, Claimant twisted her back as she attempted to
assemble an ice cream machine while working for Employer. Subsequently,
2
Claimant filed a Reinstatement Petition seeking reinstatement of her previous WC
benefits as a result of an alleged recurrence of her 2010 disabling condition that
occurred on March 18, 2015 as she attempted to assemble the ice cream machine at
work. See Reinstatement Petition. As an alternative to the Reinstatement Petition,
Claimant also separately filed a Claim Petition seeking WC benefits based on the
March 18, 2015 event, alleging an “Aggravation of Lumbar Spine stenosis[.]” See
Claim Petition.
The WCJ conducted hearings on June 8, 2015 and June 1, 2016, during
which Claimant and a co-worker testified. See Notes of Testimony (N.T.) 6/8/2015
& 6/1/2016. The WCJ also received into evidence Dr. Babins’ deposition
testimony. See Deposition Testimony of David M. Babins, M.D., December 1, 2015
(Babins Deposition).
On November 3, 2016, the WCJ issued a Decision and Order holding
that, because the 2014 WCJ Decision had determined that Claimant had fully
recovered from her 2010 work injury and that the arthritis observed at her L3-L4
was not related to the 2010 work injury, Claimant’s Reinstatement Petition was
barred by res judicata and collateral estoppel. See WCJ Decision and Order dated
November 3, 2016 (2016 WCJ Decision) at 6-7. The 2016 WCJ Decision
accordingly denied Claimant’s Reinstatement Petition. Id. at 7. The 2016 WCJ
Decision also denied the Claim Petition, finding that Claimant had not met her
burden of proving that a new work injury occurred on March 18, 2015. Id. Claimant
appealed, and the Board affirmed the 2016 WCJ Decision by opinion and order dated
3
October 13, 2017. See Board Opinion dated October 13, 2017 (2017 Board
Opinion). This appeal followed.2
In essence, Claimant now claims the Board erred by holding that her
Reinstatement Petition was barred by collateral estoppel and by denying her Claim
Petition because she failed to prove an aggravation of her 2010 injury or a new
injury. Claimant’s Brief at 28-35. While we agree that Claimant’s Reinstatement
Petition is barred by collateral estoppel, we cannot determine whether the WCJ and
the Board erred regarding the Claim Petition without further findings by the WCJ.
Section 413(a) of the Act authorizes the reinstatement of terminated
disability benefits “upon proof that the disability of an injured employe[e] has
increased, decreased, [or] recurred[.]” 77 P.S. § 772. “A claimant seeking
reinstatement of benefits following a termination carries a heavy burden because the
claimant has been adjudicated to be fully recovered.” Namani v. Workers’ Comp.
Appeal Bd. (A. Duie Pyle), 32 A.3d 850, 854 (Pa. Cmwlth. 2011) (quoting Nat’l
Fiberstock Corp. (Greater N.Y. Mut. Ins. Co.) v. Workers’ Comp. Appeal Bd.
(Grahl), 955 A.2d 1057, 1062 (Pa. Cmwlth. 2008)). In reinstatement petitions, the
claimant must prove that: “(1) his earning power is once again adversely affected
by his disability[;] and[] (2) the disability is a continuation of the disability that arose
from his original claim.” Ingrassia v. Workers’ Comp. Appeal Bd. (Universal
2
This Court’s “scope of review is limited to determining whether constitutional rights have
been violated, whether an error of law was committed and whether necessary findings of fact are
supported by substantial evidence.” Morocho v. Workers’ Comp. Appeal Bd. (Home Equity
Renovations, Inc.), 167 A.3d 855, 858 n.4 (Pa. Cmwlth. 2017) (citing Johnson v. Workmens’
Comp. Appeal Bd. (Dubois Courier Express), 631 A.2d 693 (Pa. Cmwlth. 1993)); see also Section
704 of the Administrative Agency Law, 2 Pa. C.S. § 704. “Substantial evidence is such relevant
evidence a reasonable person might find sufficient to support the WCJ’s findings.” Frog, Switch
& Mfg. Co. v. Workers’ Comp. Appeal Bd. (Johnson), 106 A.3d 202, 206 (Pa. Cmwlth. 2014).
4
Health Servs., Inc.), 126 A.3d 394, 401 (Pa. Cmwlth. 2015) (citing Bufford v.
Workers’ Comp. Appeal Bd. (North Am. Telecom), 2 A.3d 548, 558 (Pa. 2010)).
“With respect to a claim petition, the claimant bears the initial burden
of proving that [an] injury arose in the course of employment and was related
thereto.” Frankiewicz v. Workers’ Comp. Appeal Bd. (Kinder Morgan, Inc.), 177
A.3d 991, 995 (Pa. Cmwlth. 2017). “Generally, if there is no obvious relationship
between the disability and the work-related cause, unequivocal medical testimony is
required to meet this burden of proof.” Id. “Medical evidence is considered
unequivocal if the medical expert, after providing a foundation, testifies that in his
medical opinion, he thinks the facts exist.” Craftsmen v. Workers’ Comp. Appeal
Bd. (Krouchick), 809 A.2d 434, 439 (Pa. Cmwlth. 2002).
“The terms ‘aggravation of a pre-existing condition’ and ‘recurrence of
a prior injury’ are legal terms of art that are utilized to attribute causation of the
current disability to a particular event or series of events.” S. Abington Twp. v.
Workers’ Comp. Appeal Bd. (Becker & ITT Specialty Risk Servs.), 831 A.2d 175,
181–82 (Pa. Cmwlth. 2003). “In workers’ compensation law, ‘aggravation’ is a term
of art denoting a new injury, as opposed to the resumption or manifestation of
symptoms from a past injury[,]” which is known as a “recurrence” of the prior injury.
Zurn Indus. v. Workers’ Comp. Appeal Bd. (Bottoni), 755 A.2d 108, 111 (Pa.
Cmwlth. 2000). Both aggravations and recurrences of prior work-related injuries
are compensable under the Act. Chik-Fil-A v. Workers’ Comp. Appeal Bd.
(Mollick), 792 A.2d 678, 688–89 (Pa. Cmwlth. 2002). “A work-related aggravation
of a prior non-work-related condition is . . . [also] compensable.” Am. Contracting
Enters., Inc. v. Workers’ Comp. Appeal Bd. (Hurley), 789 A.2d 391, 396 (Pa.
Cmwlth. 2001) (claimant with history of shoulder problems). However, “a disability
5
that results from the natural progression of a non-work-related pre-existing condition
is not compensable under the Act.” Locher v. Workers’ Comp. Appeal Bd. (City of
Johnstown), 782 A.2d 35, 38 (Pa. Cmwlth. 2001).
This Court has explained:
An employee who experiences an injury based on the
aggravation of a pre-existing condition is entitled to
benefits if she shows that the aggravation arose in the
course of employment, the aggravation was related to the
employment, and disability resulted. To show that an
injury was related to employment, the employee must
establish a causal connection between work and the
injury. When the connection between the injury or the
aggravation and work is not obvious, unequivocal medical
testimony is necessary. Moreover, where a claimant had
an underlying condition that is not work related, she must
show continuing existing disability in order to receive
benefits. Therefore, if restrictions are placed on a claimant
that are causally related to the work-related aggravation,
the claimant is entitled to benefits.
Chik-Fil-A, 792 A.2d at 688-89 (internal citations omitted).
Here, Claimant testified that she first sustained a back injury at work
on May 4, 2010 that ultimately required an L4-L5 spinal fusion. N.T. 6/8/2015 at
13-40. Claimant ultimately returned to work and resumed her normal duties. Id. at
15-16.
Claimant stated that she suffered a second back injury while assembling
an ice cream machine at work on March 18, 2015. N.T. 6/8/2015 at 17, 35. Claimant
explained that while making a twisting motion to place a cylinder into the ice cream
machine, she experienced “very, very sharp pains” in her back located slightly above
the incision site from her previous spinal fusion surgery. Id. at 17-18. In addition
6
to pain, Claimant began experiencing muscle spasms in her back and pain radiating
down her legs. Id. at 22. She presented to Dr. Babins on March 24, 2015 for her
March 18, 2015 injury. Id. Dr. Babins examined Claimant, took x-rays, prescribed
a steroid pack, and directed her to have an MRI performed. Id. at 23-24. Claimant
explained that Dr. Babins also removed her from work for a period of eight weeks
at that time and after Dr. Babins reviewed the MRI, he recommended an additional
two months off work. Id. at 24-25.
Claimant has not returned to work since Dr. Babins took her off
work. N.T. 6/8/2015 at 29. She testified that, while her symptoms have subsided
somewhat, she is unable to perform her previous work duties because she cannot
turn, twist, reach up or down, or move any product. Id. at 27. Claimant also testified
that she experiences more muscle spasms and sharper pain since the March 18, 2015
incident. Id. at 28-29. Claimant testified that, whereas her pain following the 2010
injury and surgery had not kept her from working, her pain level following the March
18, 2015 incident did prevent her from performing her job. N.T. 6/1/2016 at
56. Claimant testified that, prior to the March 18, 2015 incident, her pain was
dependent on her activity level, whereas since that incident, her pain has been more
constant and more severe. Id. at 55-56.
The WCJ accepted into evidence Dr. Babins’ December 1, 2015
deposition testimony. See Babins Deposition. Dr. Babins first saw Claimant on
May 5, 2010 for acute lower back pain following her original work injury. Babins
Deposition at 6. After a period of unsuccessful conservative treatment, another
physician ultimately diagnosed Claimant with lumbar spinal stenosis and lumbar
instability and performed surgery on Claimant’s back. Id. at 6-7. Although her
condition and pain improved after the surgery, Dr. Babins continued to treat
7
Claimant post-surgery with intermittent medications and occasional steroidal
injections into the joints and nerve roots in Claimant’s back to alleviate her back and
leg pain. Id. at 7. Dr. Babins described the steroid injections as “palliative,”
meaning they were intended to lessen, not eradicate, Claimant’s symptoms. Id. Dr.
Babins administered the last of these palliative injections on March 5, 2015, just
under two weeks before Claimant’s new March 18, 2015 back injury. Id.
Claimant presented to Dr. Babins again on March 24, 2015 with
increasing lower back pain and fatigue related to lower back pain following the
March 18, 2015 incident. Babins Deposition at 7-8. Dr. Babins had x-rays taken at
that time that showed Claimant’s L4-L5 fusion was intact. Id. Dr. Babins’
impression at the time was “recurrent lower back pain, status post-fusion, with
concern for adjacent lumbar instability or disease.” Id. at 8. Dr. Babins prescribed
a steroid pack and ordered an updated MRI examination. Id. at 8-9.
Dr. Babins saw Claimant again on April 10, 2015, after she had the new
MRI performed. Babins Deposition at 9. Dr. Babins explained the new MRI
showed an epidural fibrosis – or scarring – around the level of the previous surgery
and adjacent level disease stenosis – or narrowing of the column holding Claimant’s
nerves – at L3-L4. Id. Dr. Babins further explained that, compared to Claimant’s
previous 2013 MRI study, Claimant exhibited significant progression of the disease
above the level of fusion at L3-L4 with more bulging of the disc and the creation of
severe central canal stenosis not previously apparent. Id. at 9-10. Unlike Dr.
Werries’ 2014 conclusion that the natural progression of existing arthritis caused
Claimant’s spinal stenosis at L3-L4, which the WCJ 2014 Decision credited, Dr.
Babins stated that Claimant’s severe central canal stenosis at L3-L4 was a direct
consequence and sequela of Claimant’s previous work-related fusion
8
surgery. Id. Additionally, Dr. Babins “opined that ‘as a result of both the
proceeding [sic] injury surgery and the more recent exacerbation of March, (the
Claimant) has significant limitations with her abilities to perform her job at
Panera.’” 2016 WCJ Decision at 5, Findings of Fact (F.F.) No. 7 (emphasis
added). When he last saw her on July 28, 2015, Dr. Babins released Claimant to
return to work pursuant to the restrictions outlined in a functional capacity evaluation
report prepared by a third-party rehabilitation provider. Id. at 26.
Employer relied upon and entered into evidence the 2014 WCJ
Decision and the 2015 Board Opinion affirming the 2014 WCJ Decision. In 2014,
the WCJ had accepted the testimony of Employer’s medical expert Dr. Werries, who
testified that Claimant’s L3-L4 disc disease resulted not from Claimant’s 2010 work
injury, but instead from unrelated arthritic changes, opining that the spinal stenosis
was a natural progression of the disease at L3-L4. See 2016 WCJ Decision at 6; see
also 2014 WCL Decision at 4-5. Employer did not offer medical evidence relating
to the March 18, 2015 incident or its effect on the Claimant’s preexisting disease.
1. The Reinstatement Petition.
Here, the WCJ determined that collateral estoppel barred the
Reinstatement Petition. See 2016 WCJ Decision at 6. By accepting Dr. Werries’
testimony, the 2014 WCJ Decision had previously determined that: (1) Claimant
had fully recovered from her 2010 injury; and (2) the mild stenosis at Claimant’s
L3-L4 was not the result of her L4-L5 fusion, but instead was caused by the natural
progression of arthritis at that level of her spine. See 2014 WCJ Decision at 4-5. As
such, the 2014 WCJ Decision limited the scope of Claimant’s 2010 injury to the L4-
L5 level of her spine and expressly stated that Claimant’s L3-L4 arthritic issues were
unrelated. Id. The Board affirmed the 2014 WCJ Decision and Claimant did not
9
appeal, thus limiting the scope of Claimant’s 2010 injury. See 2015 Board Opinion;
see also McNeil v. Workers’ Comp. Appeal Bd. (Dep’t of Corr., SCI-Graterford),
169 A.3d 171, 176 (Pa. Cmwlth. 2017), appeal denied, 181 A.3d 1124 (Pa. 2018)
(noting that, where a claimant does not appeal a WCJ’s or the Board’s determination
regarding the scope of a work injury, the determination becomes a final order as to
the scope of the work injury and collateral estoppel will preclude future attempts to
relitigate the scope of the work injury); Williams v. Workers’ Comp. Appeal Bd. (S.
Hills Health Sys.), 877 A.2d 531, 535 (Pa. Cmwlth. 2005) (holding that WCJ
decision that limited the scope of claimant’s injury and found injury had resolved
precluded a reinstatement petition to expand scope of original injury). The WCJ
determined that the Reinstatement Petition’s allegation that Claimant’s March 18,
2015 L3-L4 injury was a recurrence of her 2010 injury was an attempt to relitigate
and expand the scope of Claimant’s 2010 injury to include the L3-L4 stenosis
previously attributed to natural arthritic changes. See 2016 WCJ Decision at
6. Therefore, based on the 2014 WCJ Decision, the WCJ determined Claimant’s
Reinstatement Petition was barred by collateral estoppel. See 2016 WCJ Decision
at 6.
We agree that the 2014 WCJ Decision precludes a claim that Claimant’s
March 18, 2015 injury was a recurrence of her 2010 work-related injury. The 2014
WCJ Decision and 2015 Board Opinion limited the scope of Claimant’s 2010 work
injury to her L4-L5 issues and expressly stated that her L3-L4 issues resulted from
natural arthritic progression, not the 2010 work injury. Because the 2015 Board
Opinion affirming the 2014 WCJ Decision is final, Claimant cannot now use a
reinstatement petition to expand the scope of the 2010 work injury to include either
the 2015 injury or the L3-L4 level changes where the WCJ previously found the
10
2010 work injury to be limited to Claimant’s L4-L5 and fully resolved. See McNeil,
Williams. Otherwise stated, per the 2014 WCJ Decision, Claimant’s L3-L4
condition did not form part of the 2010 injury, and therefore, it could not have
“recurred” for the purpose of reinstating the WC benefits terminated by the 2014
WCJ Decision. Accordingly, the Board properly affirmed the WCJ’s denial of
Claimant’s Reinstatement Petition.
2. The Claim Petition.
The WCJ’s determination that collateral estoppel precluded Claimant
from claiming in the Reinstatement Petition that her L3-L4 stenosis was a recurrence
of her 2010 injury warranting a reinstatement of the previously received WC
benefits, however, does not preclude the claim that the March 18, 2015 incident
caused an aggravation of the preexisting stenosis at L3-L4 that constituted a new
injury causing disability to Claimant.
Employer in this case relied upon Dr. Werries’ 2014 opinion and the
WCJ’s 2014 Decision crediting that opinion to establish that the L3-L4 stenosis was
a natural arthritic condition.
[E]mployers take claimants as they are at the time of
injury. If a claimant has a non-work[-]related
predisposition which is rendered fully disabling by a
workplace injury that would not have disabled other
workers, employer is 100% liable for benefits even if the
injury is only 5% responsible for the resulting physical
impairment.
S. Abington Twp., 831 A.2d at 182. The employer “bears full responsibility for
whatever loss of earning power is occasioned by the aggravation.” Id. This is so
11
even where a disability is caused by a combination of a preexisting condition and
work-related intervening event or incident. See Fotta v. Workmen’s Comp. Appeal
Bd. (U.S. Steel/USX Corp. Maple Creek Mine), 626 A.2d 1144 (Pa. 1993) (holding
that where record revealed employee’s disability was partly attributable to a work-
related 2-foot fall in addition to a preexisting condition, a referee’s finding that
employee was not entitled to WC benefits was not supported by substantial
evidence).
In denying the Claim Petition, the WCJ seized on Dr. Babins’
description of Claimant’s March 18, 2015 injury as an “exacerbation” that caused a
“transient increase” in Claimant’s symptoms as follows:
Claimant’s medical expert, Dr. Babins, opined that the
Claimant has stenosis at the L3-[L]4 level, which is the
level adjacent to the prior fusion, and that the disease at
L3-[L]4 is significantly worse in the April 2015 MRI as
compared to the August 2013 MRI. Dr. Babins opined
that the L3-[L]4 stenosis is directly related to the prior
fusion and that the March 18, 2015 injury was an
exacerbation that caused a “transient increase” in
symptoms.
2016 WCJ Decision at 6, F.F. No. 12(c). Additionally, while Dr. Babins testified
that he believed the L3-L4 stenosis was related to the surgery for the prior 2010 work
injury, the 2014 WCJ Decision, which is final and binding, makes clear that the L3-
L4 condition was natural disease progression and this determination was reiterated
as a finding by the WCJ in this matter. A work-related aggravation of a pre-existing
non-work-related disease is compensable and considered a new injury. See Chik-
Fil-A, Am. Contracting; cf. 77 P.S. § 411 (defining injury as an injury “arising in the
course of his employment and related thereto, and such disease or infection as
12
naturally results from the injury or is aggravated, reactivated or accelerated by the
injury . . .”). However, here, the WCJ stated that a transient increase in symptoms
of a preexisting non-work-related condition is not compensable. The WCJ found:
As to the March 18, 2015 event, Dr. Babins testified it
caused a temporary increase in symptoms and exacerbated
the Claimant’s underlying condition. The Claimant had
been treating with Dr. Babins and, in fact, received an
injection on March 5, 2015, just 13 days before the March
18, 2015 event. Therefore, the temporary increase in
symptoms is found not to be a new distinct injury or an
aggravation of [the] underlying condition so as to be
considered a new injury, Dr. Babins opined that the L3-
[L]4 disc disease is related to the L4-[L]5 fusion surgery
performed to treat the May 4, 2010 work injury. He noted
that the 2015 MRI showed a worsening in the disc disease
at L3-[L]4 and compared to the 2013 MRI; however he did
not opine that the 2015 event caused the worsening of the
L3-[L]4 disc. He described [that] the Claimant had a
temporary increase in symptoms. Symptoms he had been
seeing her for and, in fact, had given her an injection for
just 13 days before the March 18, 2015 event.
2016 WCJ Decision at 7, F.F. No. 12(h). Based on these findings, the WCJ found
that Claimant failed to establish that the March 18, 2015 event caused a new injury
or aggravation of underlying disease at L3-L4 and therefore had not met her burden
of proof as to the Claim Petition. See 2016 WCJ Decision at 7.
In summarizing the evidence presented, the WCJ stated, “Dr. Babins
opined that ‘as a result of both the proceeding [sic] injury surgery and the more
recent exacerbation of March, ([] Claimant) has significant limitations with her
abilities to perform her job at Panera.’” 2016 WCJ Decision at 5, F.F. No. 7
(emphasis added). Nonetheless, despite having acknowledged that Dr. Babins
13
testified that Claimant has significant limitations on her ability to perform her job as
a result of both events, the WCJ’s decision omits any discussion of whether the
March 18, 2015 incident contributed to Claimant’s disability. See Fotta; S. Abington
Twp. Further, the 2016 WCJ Decision does not find that Dr. Babins’ testimony was
either equivocal or not credible. The WCJ’s findings simply note that Claimant was
treating for symptoms related to the 2010 incident shortly prior to the new March
18, 2015 incident and then directly proceed to the conclusion that Claimant suffered
no new injury, seemingly ignoring the March 18, 2015 intervening incident. See
2016 WCJ Decision at 7, F.F. No. 12(h). It appears that the WCJ concludes that
because Claimant suffered symptoms 13 days prior to the March 18, 2015 work
incident, the increase in symptoms following the event could not be caused by the
March 18, 2015 incident, despite Dr. Babins’ uncontradicted testimony that both the
surgery and the March 18, 2015 injury were the cause of Claimant’s disability.
Without some discussion of whether the intervening March 18, 2015 incident
contributed to Claimant’s disability, this Court cannot determine whether the WCJ
erred in determining that Claimant has not proven an aggravation. See S. Abington
Twp.; Chik-Fil-A, 792 A.2d at 688-89 (stating that a claimant asserting an
aggravation of a preexisting condition must establish that (i) the aggravation arose
in the course of employment; (ii) the aggravation was related to the employment;
and (iii) disability resulted); cf. Fotta, 626 A.2d at 1147 (holding that where the
claimant’s disability was due in part to a work-related incident, claimant was entitled
to WC benefits). This deficiency in the 2016 WCJ Decision represents an error of
law. A determination of whether the March 18, 2015 work incident contributed to
Claimant’s disability must be made by the WCJ in his role as fact-finder. See SKF
USA, Inc. v. Workers’ Comp. Appeal Bd. (Smalls), 728 A.2d 385, 388 (Pa. Cmwlth.
14
1999) (stating that it is the province of the WCJ to make factual findings as to
causation which will lead to the ultimate legal conclusion that the claimant has
sustained a separately compensable injury called an aggravation).
Accordingly, we affirm the Board’s affirmation of the WCJ’s denial of
Claimant’s Reinstatement Petition, but vacate the Board’s affirmation of the WCJ’s
denial of the Claim Petition and remand the matter for further findings by the
WCJ. In the event the WCJ determines that the March 18, 2015 incident represents
a new injury because it contributed to Claimant’s disability, we instruct the WCJ to
include additional findings regarding the length and extent of Claimant’s resulting
disability and any compensation due.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kathy Hammill Becht, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal Board :
(Daqle Holdings, LLC, Cincinnati :
Insurance Company and Panera Bread), : No. 1655 C.D. 2017
Respondents :
ORDER
AND NOW, this 3rd day of August, 2018, the October 13, 2017 order
of the Workers’ Compensation Appeal Board (Board) is AFFIRMED in part
regarding claimant Kathy Hammill Becht’s (Claimant) Petition to Reinstate
Compensation Benefits and VACATED in part with respect to Claimant’s Claim
Petition for Compensation Benefits (Claim Petition). The matter is REMANDED
to the Board with instructions to remand to the workers’ compensation judge for
further findings consistent with this Court’s foregoing opinion regarding Claimant’s
Claim Petition.
Jurisdiction is relinquished.
__________________________________
CHRISTINE FIZZANO CANNON, Judge