Opinion
No. 1475 C.D. 2013
06-26-2014
Edgar A. Koshatka, Petitioner v. Workers' Compensation Appeal Board (School District of Philadelphia), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Edgar A. Koshatka (Claimant), pro se, challenges the order of the Workers' Compensation Appeal Board (Board) which affirmed the Workers' Compensation Judge's (WCJ) Order that granted his claim petition in part and granted the School District of Philadelphia's (Employer) Termination Petition.
The WCJ determined:
...Claimant's Claim Petition is GRANTED in part. Claimant sustained a work related injury in the nature of a lumbar strain/sprain with contusion resulting in temporary total disability benefits through March 31, 2010. Employer is entitled to a credit for any wages paid during this period of disability.WCJ's Decision, May 26, 2011, Order at 13-14; Reproduced Record (R.R.) at 82a-83a.
IT IS FURTHER ORDERED that Claimant's Penalty Petition is WITHDRAWN.
IT IS FURTHER ORDERED that Employer's Termination Petition is GRANTED effective April 1, 2010.
IT IS FURTHER ORDERED that Employer's Suspension Petition is DENIED in part and MOOT in part. It is denied to the extent that Employer is seeking a suspension effective November 12, 2009 and moot to the extent that Employer is seeking a suspension as of April 15, 2010 based on the granting of the Termination Petition.
IT IS FURTHER ORDERED that Employer's UR Petition is GRANTED in part....
I. Background.
On October 15, 2009, Claimant sustained a work related injury while working as a music teacher for Employer.
On November 6, 2009, Employer issued a Notice of Temporary Compensation Payable (NTCP) and acknowledged a "lumbar strain/sprain w/contusion" and paid Claimant $782.66 per week based on an average weekly wage (AWW) of $1174.00.
On November 11, 2009, Claimant petitioned for benefits and alleged that he sustained a herniated disc and radiculopathy as a result of a work-related injury on October 15, 2009.
On November 18, 2009, Employer issued a Notice of Denial (Denial) and a Notice Stopping Temporary Compensation indicating that it was suspending benefits as of November 17, 2009, but did not specifically deny that a compensable work injury occurred.
On January 8, 2010, Claimant filed a Penalty Petition and alleged that Employer violated the Workers' Compensation Act (Act) when it failed to pay indemnity benefits from November 27, 2009, and ongoing.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-104.4, 2501-2708.
On April 21, 2010, Employer petitioned to suspend benefits and alleged that as of April 9, 2010, Employer offered Claimant a job and he refused to return to work.
On May 18, 2010, Claimant filed a Petition to Review a Utilization Review Determination related to treatment provided by Dr. Harris A. Ross (Dr. Ross) from January 25, 2010, and ongoing.
On July 28, 2010, Employer filed a Termination Petition and alleged that as of April 1, 2010, Claimant was fully recovered from his work related injuries.
The petitions were consolidated.
Claimant testified that he was employed as an instrumental music teacher and his job duties involved traveling to different schools within the school district. Deposition of Edgar Koshatka, January 18, 2010, (Claimant's Deposition 1/18/10) at 6; R.R. at 61a. On Thursday, October 15, 2009, Claimant worked in a portable trailer on a school campus. Claimant's Deposition 1/18/10 at 12-13; R.R. at 62a. The weather was rainy and Claimant slipped and fell on the steps as he exited the trailer. Claimant's Deposition 1/18/10 at 14; R.R. at 63a. Claimant landed on the small of his lower back and felt pain but it was not serious. Claimant's Deposition 1/18/10 at 15; R.R. at 63a. The following morning, Claimant awoke with "really very bad lower back pains, but the really new thing was I had these really aching...pains going down my left leg predominantly, my right leg a little bit." Claimant's Deposition 1/18/10 at 15; R.R. at 63a. Claimant called and said he was taking the day off from work. Claimant's Deposition 1/18/10 at 15; R.R. at 63a. Claimant's condition progressively worsened over the weekend and on Monday or Tuesday Claimant emailed the principal and informed her about his injury. Claimant's Deposition 1/18/10 at 17; R.R. at 63a. The principal emailed Claimant a number of documents concerning the workers' compensation insurance carrier and the panel physician list. Claimant's Deposition 1/18/10 at 18; R.R. at 64a. Claimant contacted Industrial Health and the medical personnel prescribed Flexeril and Celebrex for Claimant's work injury. Claimant continued to experience back pain that radiated down his legs and complained that the medication made him drowsy. Claimant's Deposition 1/18/10 at 21-25; R.R. at 64a-65a. Claimant was x-rayed and referred for physical therapy at Nova Care. Claimant's Deposition 1/18/10 at 26; R.R. at 66a. Claimant did not feel that physical therapy helped his condition and "if anything, it exacerbated" his pain. Claimant's Deposition 1/18/10 at 27; R.R. at 66a. In mid-November, Claimant sought treatment with John J. Bowden, Jr., D.O., P.C. (Dr. Bowden), board-certified in family practice and pain management and certified to perform impairment rating evaluations, and a chiropractor named Dr. Jenkins. Claimant's Deposition 1/18/10 at 29-30; R.R. at 66a-67a. Claimant underwent an MRI of the spine and additional physical therapy. Claimant's Deposition 1/18/10 at 31; R.R. at 67a. Claimant found this physical therapy to be more beneficial for his lower back but he still experienced pain in his legs. Claimant's Deposition 1/18/10 at 32; R.R. at 67a. Dr. Bowden referred Claimant to Dr. Ross and Mark D. Avart, D.O., (Dr. Avart), board-certified in orthopedics. Claimant's Deposition 1/18/10 at 33-34; R.R. at 67a-68a. It is uncomfortable for Claimant to sit for more than twenty minutes because he experiences pain in his lower back that radiates down his legs. Claimant's Deposition 1/18/10 at 36; R.R. at 68a. Walking is a "real problem" but has improved since November of 2009. Claimant's Deposition 1/18/10 at 36-37; R.R. at 68a. Claimant does not believe he could return to his pre-injury job or any other job. Claimant's Deposition 1/18/10 at 40; R.R. at 69a.
On cross-examination, Claimant testified that although he was not working, he did not sustain a wage loss until November 27, 2009. Claimant's Deposition 1/18/10 at 44-45; R.R. at 70a. Employer requested a credit for all wages paid to Claimant during that period. Claimant's Deposition 1/18/10 at 45; R.R. at 70a. Claimant testified that he had back aches and a knee ache prior to the injury but that Celebrex helped with the pain. Claimant's Deposition 1/18/10 at 50; R.R. at 72a. Industrial Health's medical personnel released Claimant to return to work with restrictions. Claimant's Deposition 1/18/10 at 62; R.R. at 75a. Industrial Health gave Claimant the restriction notes and told him to provide them to his Employer. Claimant did not inform Employer of the restrictions because "they were absurd, and I couldn't move." Claimant's Deposition 1/18/10 at 68; R.R. at 76a. On November 6, 2009, Claimant received a letter from Employer that indicated Employer had a position available within the restrictions set forth by Industrial Health. Claimant's Deposition 1/18/10 at 64; R.R. at 75a. Claimant informed Employer via email that he could not perform the modified duty job. Claimant's Deposition 1/18/10 at 66; R.R. at 76a.
Claimant presented the deposition testimony of Dr. Bowden. Dr. Bowden first saw Claimant on November 12, 2009. Deposition of John J. Bowden, Jr., D.O., P.C., March 24, 2010, (Dr. Bowden Deposition), at 18; R.R. at 65b. Dr. Bowden recommended therapeutic modalities, MRI and EMG three times per week. Dr. Bowden Deposition at 20; R.R. at 65b. A November 23, 2009, MRI revealed degenerative changes and narrowing at L4-5, an anterior osteophyte with bone bridging across the disc more prominent to the left upper midline, a shallow broad bone spur and broad disc protusion across L4-5, degenerative changes with narrowing at L5-S1 with a central bulge, moderate degenerative changes with dessication at L3-4 and grade one anterior spondylolisthesis with facet arthropathy, and a left lateral disc bulge at L1-2. Dr. Bowden Deposition at 21-22; R.R. at 66b-67b. A February 18, 2010, EMG suggested left L5 radiculopathy and peripheral polyneuropathy. Dr. Bowden Deposition at 24; R.R. at 69b. Dr. Bowden examined Claimant on three more occasions: December 22, 2009, January 25, 2010, and March 23, 2010. Dr. Bowden Deposition at 25; R.R. at 70b. Dr. Bowden opined that Claimant was unable to perform his pre-injury job as a music teacher due to pain in his lumbar spine and his difficulty sitting and walking. Dr. Bowden Deposition at 26; R.R. at 71b. Dr. Bowden did not review the February 2010 EMG study, only the narrative report. Dr. Bowden Deposition at 27; R.R. at 72b. Dr. Bowden conceded that he did not review the Albert Einstein radiological report from November 28, 2008, which preexisted the date of injury. Dr. Bowden Deposition at 30; R.R. at 75b. Dr. Bowden acknowledged that Claimant had a longstanding history of degenerative disease in his low back prior to his work injury but that his work injury aggravated his preexisting condition. Dr. Bowden Deposition at 29; R.R. at 74b. Dr. Bowden compared the November 2008 MRI report with the November 2009 MRI report and opined that the 2008 report does not discuss disc herniation whereas the 2009 report does. Dr. Bowden Deposition at 44; R.R. at 89b. Dr. Bowden conceded that Claimant does not have to lie down all day and is able to use his upper extremities freely. Dr. Bowden's restrictions would include walking, sitting, and standing for only 15 minutes at a time. Dr. Bowden Deposition at 46; R.R. at 91b.
The references to the Reproduced Record include an "a," "b" and "c" after the page number. This Court included the corresponding letter for the sake of consistency.
Claimant presented the deposition testimony of Dr. Avart. Dr. Avart first examined Claimant on January 28, 2010, at the request of Dr. Bowden. Deposition of Mark D. Avart, D.O., August 26, 2010, (Dr. Avart Deposition), at 8; R.R. at 64c. Claimant complained of left leg pain, back pain and sciatica since the October 15, 2009, work injury. Dr. Avart Deposition at 8; R.R. at 64c. Dr. Avart's examination revealed moderate spasm in Claimant's low back; less than normal flexion; sciatic notch tenderness; weakness in the low back musculature; mild limp with the left leg; and a positive straight leg raising on the left at 40 degrees and at 70 degrees on the right. Dr. Avart Deposition at 9; R.R. at 65c. Dr. Avart reviewed the November 23, 2009, MRI report and films and opined that Claimant had disc herniations at L4-5 and a smaller herniation at L3-4. Dr. Avart Deposition at 9; R.R. at 65c. On August 12, 2010, Dr. Avart examined Claimant a second time. Claimant complained of pain in his back that radiated down his legs the longer he stood, walked, or drove, and that he had to change his position frequently. Dr. Avart Deposition at 10; R.R. at 65c. Claimant's examination showed persistent spasm, increased range of motion, positive straight-leg raising bilaterally, and persistent weakness and sciatic notch tenderness. Dr. Avart Deposition at 11; R.R. at 65c. Dr. Avart reviewed the MRI report from 2008 and the medical records of Dr. Carabello, Dr. Gordon, and an EMG study from February 19, 2010. Dr. Avart Deposition at 11-12; R.R. at 65c. Dr. Avart opined that Claimant sustained a work related herniated lumbar disc at L4-5 and L3-4, lumbar radiculopathy, and an exacerbation of pre-existing degenerative joint and disc disease of the lumbar spine. Dr. Avart Deposition at 12; R.R. at 65c. Dr. Avart compared the reports from the November 2008 MRI and the November 2009 MRI and noted that there was no indication of a disc herniation in 2008 but there was degenerative disc narrowing and stenosis in 2009. Dr. Avart Deposition at 14; R.R. at 66c. Dr. Avart opined that Claimant was unable to return to his pre-injury job because Claimant was not fully recovered from his work related injury. Dr. Avart Deposition at 19; R.R. at 67c. Dr. Avart believed that Claimant could work if the job allowed him to sit and stand as needed and did not require lifting, twisting, climbing, kneeling, or crawling, and did not require him to lift over five to eight pounds. Dr. Avart Deposition at 20; R.R. at 67c.
Pierre Marturano (Mr. Marturano), the workers' compensation manager for Employer, testified on behalf of Employer at a hearing held on July 7, 2010. His job duties involved coordinating return to work for injured employees and handling all of the claims. Notes of Testimony, July 7, 2010, (N.T.) at 38. On November 3, 2009, Mr. Marturano sent a job offer letter to Claimant for a position that would remain open indefinitely. N.T. at 38. Mr. Marturano sent Claimant a second job offer letter on April 9, 2010, based on Dr. Bowden's restrictions. N.T. at 40. Mr. Marturano testified that Employer's policy is to try to bring employees back to work when possible, especially valued employees like Claimant who worked for Employer for a few years. N.T. at 39. Mr. Marturano confirmed that there still continued to be a job available to Claimant. N.T. at 39-40.
Employer presented the deposition testimony of Dennis Bonner, M.D., (Dr. Bonner). Dr. Bonner is board-certified in physical medicine and rehabilitation and electrodiagnostic medicine, and owner of Industrial Health Care Center. Deposition of Dennis Bonner, M.D., September 28, 2010, (Dr. Bonner Deposition), at 5; Supplemental Reproduced Record (S.R.R.) at 91a. Claimant was treated twice at Industrial Health Care Center by Bethea Cawley, P.A., (Ms. Cawley), a physician's assistant. Dr. Bonner Deposition at 13; S.R.R. at 99a. Dr. Bonner reviewed Employer's job offer letter and opined that he would approve any position that fell within the restrictions from November 30, 2009, to April 1, 2010, if Claimant's condition did not change. Dr. Bonner Deposition at 20; S.R.R. at 6b. On cross examination, Dr. Bonner conceded that he never examined Claimant. Dr. Bonner Deposition at 25-26; S.R.R. at 11b-12b.
Employer also presented the deposition testimony of Ms. Cawley. Ms. Cawley is a licensed physician assistant employed by Industrial Health Care. Deposition of Bethea Cawley, P.A., November 5, 2010, (Ms. Cawley Deposition), at 6; R.R. at 18c. Ms. Cawley examined Claimant and found that Claimant had a restricted range of motion, there was no tenderness, and a negative straight leg test. Ms. Cawley Deposition at 10-11; R.R. at 22c-23c. Ms. Cawley opined Claimant sustained a work-related lumbar sprain and strain with contusion. She prescribed Flexeril, Lidoderm patches, and physical therapy. Ms. Cawley recommended that Claimant continue taking Celebrex. Ms. Cawley Deposition at 11; R.R. at 23c. Ms. Cawley provided a few restrictions on Claimant's work activities. Ms. Cawley Deposition at 13; R.R. at 25c. Ms. Cawley examined Claimant a second time and Claimant reported that he felt much better because of the medication and the physical therapy. Ms. Cawley Deposition at 14; R.R. at 26c. A physical examination revealed a restricted range of motion and Claimant's work restriction remained the same. Ms. Cawley Deposition at 17-18; R.R. at 29c-30c.
Employer submitted the deposition testimony of Stuart L. Gordon, M.D. (Dr. Gordon), a board-certified orthopedic surgeon. Deposition of Stuart L. Gordon, M.D., July 8, 2010, (Dr. Gordon Deposition), at 5; S.R.R. at 90c. Dr. Gordon examined Claimant on April 1, 2010. Claimant described his October 15, 2009, injury and his complaints of low back pain and left leg symptoms. Dr. Gordon Deposition at 9; S.R.R. at 94c. Claimant informed Dr. Gordon that he had a history of low back pain but that he was functional prior to the work related injury. Dr. Gordon Deposition at 10; S.R.R. at 95c. Dr. Gordon's physical examination revealed an awkward gait pattern, a very stiff back, no reflex deficit, and a significant valgus deformity of his right knee with marked crepitus, a normal straight leg raise test, impaired flexibility, and no spasm of the paraspinal muscles. Dr. Gordon Deposition at 10-11; S.R.R. at 95c-96c. Dr. Gordon diagnosed Claimant with a lumbar strain and sprain and contusion-type soft tissue injury as a result of his work-related injury. Dr. Gordon Deposition at 12; S.R.R. at 99c. Dr. Gordon opined that Claimant did not have any findings of radiculitis and that Claimant's soft tissue injury had no objective substantiation. Dr. Gordon noted that Claimant had subjective complaints without any objective findings to support his ongoing impairment or lack of flexibility in his lumbar spine. Dr. Gordon Deposition at 13; S.R.R. at 98c. Dr. Gordon found no difference between the 2008 MRI and the 2009 MRI and there was no evidence of a post fall inflammatory change in the spinal column, nerve roots or disc area. Dr. Gordon Deposition at 13; S.R.R. at 98c. Dr. Gordon opined Claimant was fully recovered from his work-related injury. Dr. Gordon Deposition at 14; S.R.R. at 99c.
In support of the utilization review, Employer submitted the May 11, 2010, Utilization Review Determination face sheet along with the April 22, 2010, Utilization Review report from Milton J. Klein, D.O., (Dr. Klein), who is board-certified in physical medicine and rehabilitation. Dr. Ross asked Dr. Klein to conduct a utilization review of treatment rendered by Dr. Ross from January 25, 2010, and ongoing. The treatment under review included office visits, referrals, prescriptions, diagnostic studies, physical therapy, chiropractic, acupuncture, injections, transcutaneous electrical nerve stimulation (TENS unit), electronic muscle stimulator (EMS), and percutaneous neuromodulation units (PENS). Utilization Review Report, April 22, 2010, (Report), at 1; R.R. at 54a. Dr. Klein spoke to Dr. Ross regarding the treatment under review and Dr. Ross indicated that the acupuncture treatments should continue at two week intervals for chronic pain management and avoidance of narcotic analgesic medication. Report at 3; R.R. at 56a. Claimant provided a statement in which he indicated that Dr. Ross's treatment was necessary for recovery and allowed him to resume his usual activities of walking and sitting. Report at 3; R.R. at 56a. Dr. Klein opined that the evaluations and acupuncture treatments by Dr. Ross from January 25, 2010, and ongoing at two week intervals are reasonable and necessary because it falls within the standard of care for Claimant's diagnoses and documented symptoms. There was no medical documentation that indicated the prescribed medications, the injections, or the TENS, EMS, PENS treatments provided by Dr. Ross during the period under review, were reasonable or necessary. Report at 4; R.R. at 57a.
The WCJ granted Claimant's Claim Petition in part and determined that Claimant sustained a work related injury in the nature of a lumbar strain/sprain with contusion that resulted in temporary total disability benefits through March 31, 2010. Employer was entitled to a credit for any wages paid during this period of disability. The WCJ also ordered that Claimant's Penalty Petition was withdrawn and granted Employer's Termination Petition and terminated benefits as of April 1, 2010. The WCJ denied Employer's Suspension Petition in part and found it moot in part. It was denied to the extent that Employer sought a suspension effective November 12, 2009, and moot to the extent that Employer sought a suspension as of April 15, 2010 based on the grant of the Termination Petition. The WCJ also granted Employer's Utilization Review Petition in part.
The WCJ made the following relevant findings of fact:
19. Based on a review of the record as a whole, this Judge finds the testimony of Claimant to be credible and persuasive, in part. To the extent that he testified that he sustained a work injury on October 15, 2009, his testimony is accepted as credible. However, to the extent that Claimant testified that he is totally disabled and unable to perform his job with restrictions and needs to lay down, his testimony is rejected. This credibility determination is based on this Judge's personal observations of Claimant during his live testimony. Furthermore, Claimant's own treating physician, Dr. Bowden, admitted that Claimant did not have to lay [sic] down all day and could work with restrictions. Claimant also admitted he was taking medication for back pain prior to his work injury and was undergoing treatment
and tests for back pain prior to his work injury. Finally, Claimant refused to return to work for more than two days even after...Dr. Bowden released him to return to work with restrictions.
20. Based on a review of the record as a whole, this Judge finds the testimony of Pierre Marturano credible and persuasive and accepts the same as fact. This credibility determination is based on this Judge's personal observations of Mr. Marturano's demeanor and affect during his live testimony.
21. Based on a review of the record as a whole, this Judge finds the testimony of Dr. Bowden and Dr. Avart less credible and persuasive than the testimony of Bethea Cawley, Dr. Bonner and Dr. Gordon. This credibility determination is based on the fact that Dr. Bowden testified that Claimant was able to walk and use his upper extremities and was merely limited to sitting, standing and walking to 15 minutes at a time. In addition, Dr. Avart acknowledged that Claimant could work with restrictions whereas Dr. Bowden was inconsistent on that issue. Neither Dr. Avart nor Dr. Bowden reviewed both MRI films whereas Dr. Gordon did review both films. Claimant's testimony regarding ongoing disability was not credible and the testimony of Dr. Bonner and Ms. Cawley that Claimant was capable of restricted work in November 2009 is more consistent with the fact that neither of Claimant's medical expert [sic] opined that Claimant needed to lay [sic] down all day and both Dr. Bowden and Dr. Avart admitted that Claimant could not work with restrictions.
22. Based on a review of the record as a whole, this Judge finds the opinions of Dr. Klein credible in part. To the extent that he found treatment in the nature of follow up visits and acupuncture at two week intervals reasonable and necessary from January 26, 2010 through the date of Dr. Gordon's examination, this Judge accepts his opinions as fact. Furthermore, to the extent that Dr. Klein found treatment in the nature of medication, injections, TENS, EMS and PENS unreasonable and unnecessary from January 26, 2010 and ongoing his
opinions are accepted as fact. However, to the extent that Dr. Klein found treatment reasonable and necessary after the date of Dr. Gordon's examination, his opinions are rejected as Dr. Klein did not examine Claimant. Therefore, Dr. Gordon's opinions are accepted over those of Dr. Klein....WCJ's Decision, Findings of Fact Nos. 19-23 and 25-27 at 11-13; R.R. at 81a-83a.
23. Claimant has met his burden of establishing a work related injury on October 15, 2009 in the nature of a lumbar strain/sprain with contusion. He further met his burden of establishing disability through March 31, 2010 because the opinions of Dr. Bonner and Ms. Cawley support this period of disability. Although Claimant offered work within his restrictions in November 2009 and refused to pursue the same, the job offer did not sufficiently outline the nature of the work offered. Employer is entitled to a credit for any wages paid during Claimant's period of disability.
....
25. Employer met its burden of establishing that Claimant was fully recovered from his work injuries as of April 1, 2010.
26. Employer failed to meet its burden of establishing that work was available to Claimant as of November 12, 2009 within Claimant's restrictions but did meet its burden of establishing available work as of April 15, 2010 but the issue is moot because Claimant was fully recovered as of April 1, 2010.
27. Employer has met its burden of establishing that treatment rendered by Dr. Ross on and after April 1, 2010 is unreasonable and unnecessary. Employer has failed to meet its burden of establishing that treatment in the nature of follow up visits and acupuncture on two week intervals prior to April 1, 2010 is unreasonable and unnecessary. Employer met its burden of establishing that all other treatment rendered by Dr. Ross from January 26, 2010 through April 1, 2010 is unreasonable and unnecessary.
The Board affirmed.
II. Present Controversy.
On appeal, Claimant listed the following four issues:
This Court's review is limited to a determination of whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence, or whether constitutional rights were violated. Vinglinsky v. Workmen's Compensation Appeal Board (Penn Installation), 589 A.2d 291 (Pa. Cmwlth. 1991).
A. Whether the WCJ and Appeal [Board] erred in terminating the Employee's [Claimant's] Claim Petition [sic] after he submitted substantial and credible evidence of continued injury related to the incident that occurred during the course of his employment?Claimant's Brief, Statement of Questions Involved at 4.
(Suggested Answer: Yes)
B. Whether the Employee [Claimant] is entitled to workers' compensation benefits and medical bills paid?
(Suggested Answer: Yes)
C. Whether the Employer wrongfully discharged the Employee [Claimant] since he filed a workers' compensation claim in violation of public policy?
(Suggested Answer: Yes)
D. Whether the Judge [WCJ] and Appeal Board failed to render a well reasoned decision in violation of the Act?
(Suggested Answer: Yes)
A review of the record reveals that Claimant did not raise this issue before the Board. Therefore, it is waived. In Budd Baer, Inc. v. Workers' Compensation Appeal Board (Butcher), 892 A.2d 64, 67 (Pa. Cmwlth.), petition for allowance of appeal denied, 906 A.2d 544 (Pa. 2006), this Court stated, "Issues not raised before the WCJ and the Board are deemed waived on appeal to this Court."
Essentially, Claimant contends that the Board erred when it terminated Claimant's benefits as of April 1, 2010, because he provided credible and substantial evidence of a continued work-related injury. Claimant also argues that the WCJ failed to render a well-reasoned decision.
In a claim petition, a claimant must establish all the necessary elements to prevail. A claimant must prove that the injury occurred in the course of employment and that it is related to that employment. Inglis House v. Workmen's Compensation Appeal Board (Reedy), 634 A.2d 592 (Pa. 1993). Further, the Claimant indisputably maintains a burden of proving that the injury he has claimed continues to cause disability throughout the pendency of the claim petition. Vista International Hotel v. Workers' Compensation Appeal Board (Daniels), 742 A.2d 649 (Pa. 2000). When there is no obvious causal connection between the injury and the work-related cause, unequivocal medical testimony is necessary to establish such a connection. Cromie v. Workmen's Compensation Appeal Board (Anchor Hocking Corp.), 600 A.2d 677 (Pa. Cmwlth. 1991). Additionally, the WCJ must find such medical testimony credible in order for a claimant to prevail. Cardyn v. Workmen's Compensation Appeal Board (Heppenstall), 534 A.2d 1389 (Pa. 1987).
In a termination proceeding, the burden of proof is on the Employer to establish that the claimant fully recovered from his work-related injury or, that any remaining disability is no longer the result of the work injury. GA & FA Wagman, Inc. v. Workers' Compensation Appeal Board (Aucker), 785 A.2d 1087 (Pa. Cmwlth. 2001).
In the present controversy, the WCJ determined that Claimant was credible to the extent that he sustained a work-related injury on October 15, 2009, and rejected his testimony that he was totally disabled. The WCJ found "the testimony of Dr. Bowden and Dr. Avart less credible and persuasive than the testimony of Bethea Cawley, Dr. Bonner and Dr. Gordon...Neither Dr. Avart nor Dr. Bowden reviewed both MRI films where Dr. Gordon did review both films." WCJ's Decision, Finding of Fact No. 21 at 11; R.R. at 80a. The WCJ as the ultimate finder of fact in workers' compensation cases has exclusive province over questions of credibility and evidentiary weight, and is free to accept or reject the testimony of any witness, including a medical witness, in whole or in part. General Electric Co. v. Workmen's Compensation Appeal Board (Valsamaki), 593 A.2d 921 (Pa. Cmwlth.), petition for allowance of appeal denied, 600 A.2d 541 (Pa. 1991). The credible medical testimony of Dr. Gordon met the burden associated with a termination petition and established that Claimant's work-related injury was fully resolved as of April 1, 2010. This Court will not disturb a WCJ's findings when those findings are supported by substantial evidence. Nevin Trucking v. Workmen's Compensation Appeal Board (Murdock), 667 A.2d 262 (Pa. Cmwlth. 1995).
For workers' compensation purposes, disability is equated with a loss of earning power. Inglis House. --------
Claimant also argues that the Board erred when it affirmed the WCJ because the WCJ failed to issue a reasoned decision.
Section 422(a) of the Act, 77 P.S. §834, provides that the WCJ shall file 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 decision so that all can determine why and how a particular result was reached." Further, "[t]he workers' compensation judge shall specify the evidence upon which the workers' compensation judge relies and state the reasons for accepting it in conformity with this section." A decision is reasoned if it allows for adequate review by the appellate courts. "A reasoned decision is no more, and no less." Daniels v. Workers' Compensation Appeal Board (Tristate Transport), 828 A.2d 1043, 1052 (Pa. 2003).
Here, the WCJ set forth specific findings of fact concerning the testimony of Claimant, Dr. Bowden, Dr. Avart, Mr. Marturano, Dr. Bonner, Dr. Gordon, Ms. Cawley and the Utilization Review report from Dr. Klein. Further, the WCJ clearly explained his credibility determinations. This Court is satisfied that the WCJ issued a reasoned decision pursuant to Section 422(a) of the Act, 77 P.S. §834.
Accordingly, the decision of the Board is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 27th day of June, 2014, the Order of the Workers' Compensation Appeal Board in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge