Opinion
665 C.D. 2021
04-17-2023
Kimberly Lyons, Petitioner v. City of Philadelphia (Workers' Compensation Appeal Board), Respondent
OPINION NOT REPORTED
Submitted: April 1, 2022
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE STACY WALLACE, Judge
MEMORANDUM OPINION
PATRICIA A. McCULLOUGH, JUDGE
Kimberly Lyons (Claimant) petitions for review of the May 20, 2021 Opinion and Order (Order) of the Workers' Compensation Appeal Board (Board). The Board affirmed the Decision and Order (Decision) of the Workers' Compensation Judge (WCJ) circulated on July 20, 2020, which 1) granted the City of Philadelphia's (Employer) Petition to Terminate (Termination Petition) and 2) denied Claimant's Petition to Review (Review Petition). Upon review, we affirm the Board.
I. Facts and Procedural History
The relevant facts are undisputed and may be summarized as follows. On February 21, 2018, Claimant was injured during the course and scope of her employment as a police officer for Employer when, while getting out of a police car, she fell on a sidewalk and injured her left knee and ankle. Employer issued a Notice of Compensation Payable (NCP) accepting liability for Claimant's injury, which initially was described as a left ankle sprain. Approximately one year later, on May 2, 2019, Dr. Steven Boc, a doctor of podiatric medicine (D.P.M.), conducted an independent medical examination (IME) of Claimant after which he opined that, as of that date, she had fully recovered from her injury. Employer accordingly filed the Termination Petition on May 21, 2019, seeking to terminate Claimant's benefits effective May 2, 2019.
On May 29, 2019, Claimant filed the Review Petition alleging that the injury description in the original NCP was incorrect and should also have included a left knee contusion. On June 3, 2019, Employer issued an amended NCP (Amended NCP) recognizing Claimant's work injury as both a left ankle sprain or tear and a left knee contusion. The Termination Petition and Review Petition were consolidated and heard together before WCJ Michael Rosen on December 3, 2019.
A. Before the WCJ
At the December 3, 2019 hearing before the WCJ, Claimant amended her Review Petition to add causalgia and complex regional pain syndrome (CRPS) as work-related injuries. Employer introduced a transcript of Claimant's testimony given at a Heart and Lung Act hearing on July 10, 2019. Claimant testified that she has pain from her left knee to her left foot and cannot put full pressure on her left foot. She further testified that she wears a boot on her left foot. She has been out of work since February 2018 and cannot return to work, even in a sedentary capacity, because her left foot must be elevated continually. (R.R. 18a-21a.)
Causalgia and CRPS are not two distinct injuries. Rather, CRPS is a specific type of causalgia. (Reproduced Record (R.R.) 114a-15a.)
Act of June 28, 1935, P.L. 447, as amended, 53 P.S. §§ 637-638.1 "The purpose of the Heart and Lung Act is to provide important public safety personnel with full compensation while disabled from an injury which occurs in the performance of duty." City of Pittsburgh v. Workers' Compensation Appeal Board (Wiefling), 790 A.2d 1062, 1066 (Pa. Cmwlth. 2001).
Employer also presented the August 26, 2019 deposition testimony of Dr. Boc. Dr. Boc testified that, during the IME, Claimant did not disclose any pain in areas other than her left foot and ankle, and he therefore did not examine her knee. He saw no evidence of causalgia or CRPS and concluded that her complaints of pain were not substantiated by any objective findings or diagnostic studies. He therefore opined that she was fully recovered, required no further treatment, and could return to work. (R.R. 40a-47a.)
Claimant submitted the October 4, 2019 deposition transcript of Dr. Adina Marie Dees, M.D., Claimant's treating physician. Dr. Dees testified that Claimant began treating with her on March 8, 2018, approximately two weeks after the injury. (R.R. 95a.) After an initial physical examination, Dr. Dees developed working diagnoses of a left foot sprain, left ankle sprain, and left knee sprain. (R.R. 97a.) A magnetic resonance imaging (MRI) scan of Claimant's foot and ankle was taken on March 29, 2018, which noted "Achilles' tendinosis, peroneus longus tendinosis with interstitial tearing, a posterior tibial tendinosis and second and third metatarsal bursitis." (R.R. 101a.)
Dr. Dees referred Claimant to Dr. Paul Horenstein, M.D., an orthopedic surgeon, who prescribed physical therapy. After approximately four to six weeks of physical therapy, Claimant's condition did not improve. Claimant underwent a second MRI with contrast, the results of which showed an "anterior talofibular ligament (ATFL) partial tear and a calcaneal fibular ligamental (CFL) tear," which is a "complete tear of the ligament on the outside of the ankle." (R.R. 102a, 104a.) Dr. Dees again referred Claimant to Dr. Horenstein, who recommended no further treatment and "essentially discharged" Claimant from his care. (R.R. 106a-07a.) According to Dr. Dees, Claimant then sought a second opinion with podiatry specialist, Dr. Edward Chairman, D.P.M., who "confirmed she does have some causalgia. . . due to the injury." (R.R. 108a.) Claimant also was referred to a neurologist, Dr. Richard Bennett, M.D. Dr. Bennett prescribed Gabapentin, a nerve pain medication, and recommended that Claimant seek a pain management consultation. (R.R. 110a-11a.) Dr. Bennett opined that Claimant "was unable to work due to her disability." (R.R. 112a.)
Dr. Dees described causalgia as "post-traumatic pain . . . from a nerve." (R.R. 108a.)
Claimant continues taking Gabapentin, which prevents her from driving or holding a gun. (R.R. 201a-02a.) Dr. Dees noted that Gabapentin may cause sedation, dry mouth, and fatigue and did not recommend that a full-duty police officer take this medication while working. (R.R. 111a.)
Dr. Dees testified in conclusion that she did not agree with Dr. Boc's opinion that Claimant was fully recovered, which she believed was inconsistent with the medical evidence. (R.R. 118a.) Dr. Dees testified that in addition to Claimant's consistent claims of "burning pain and altered sensation in her left foot and ankle . . .[,] a neurologist who specialized in nerve pathology evaluated her and noted that she has causalgia, or a nerve injury . . . and also admitted that she does have swelling in her extremity." (R.R. 118a-19a.)
Dr. Boc and Dr. Dees both submitted supplemental written reports based on their review of additional medical records and reports received after their depositions. Dr. Boc issued his supplemental report on October 3, 2019, based on his review of medical records from Dr. Dees, the September 18, 2019 report of Dr. Bennett, and the June 25, 2019 report of Dr. Chairman. (R.R. 84a-85a; 157a-59a; 160a-61a.) Dr. Boc stated in his supplemental report that the additional records and reports did not change his opinion that Claimant was fully recovered from her injury. He disagreed with the opinions of Drs. Chairman, Bennett, and Dees, opining as follows:
Dr. Chairman's report does not include a physical examination of the patient's lower extremity and offers no insight into any of the physical findings which he may have found. In fact, he opines that he has nothing to offer her and simply says that she needs a physiatrist or a neurologist. Though he says she may have posttraumatic causalgia in the left foot and legs, he offers no subjective symptomatology nor any objective findings to substantiate those conditions.
Dr. Bennett . . . under subjective findings indicates that the ultrasound evaluation and [electromyography (EMG)] of her foot and ankle have all been unremarkable. He reports that she has chronic pain and swelling, and has been taking only Motrin. Under musculoskeletal examination, he notes that she reports leg pain, though she denies back pain, difficulty walking, joint swelling or muscle cramps. Neurologically, she reports a tingling sensation but denies any numbness or paralysis or tremors. On his neurological examination, she has no acute distress reported. On her lower left leg, he notes only hypersensitivity to light touch diffusely over the left foot and ankle with swelling. This does not meet the diagnostic criteria of CRPS . . . .
Dr. Dees report simply corresponds with what Dr. Bennett had referred to in his notes.
. . . .
Dr. Horenstein, another treating physician, on 09/24/2018 at his last examination, noted that [Claimant] had global sensitivity throughout the ankle without objective signs of CRPS. He concluded she was stable orthopedically and she could return to work full duties without restrictions. As I stated in my deposition, I did agree with Dr. Horenstein's findings and my own findings, which were not indicative of
CRPS. I disagree with Dr. Bennett's opinions that his limited findings suggest that she has a component of CRPS.
Within a reasonable degree of medical certainty, [Claimant] has fully recovered from the left ankle sprain which includes a partial tear of the ankle ligaments. No further care or treatment is necessary for the ankle sprain. Her subjective complaints are not substantiated by objective findings or diagnostic studies.
Within a reasonable degree of medical certainty, [Claimant] can return to her duties as a police officer without restrictions and needs no further care or treatment.(R.R. 84a-85a.)
Dr. Dees opined in her supplemental report that she disagreed with Dr. Boc's opinion that Claimant did not meet the diagnostic criteria for CRPS. She also reiterated her opinion that Claimant had not fully recovered, required further treatment and care, and could not return to her full duties as a police officer. (R.R. 206a-07a.)
Having reviewed all expert reports, transcripts, and testimony, the WCJ rejected Claimant's and Dr. Dees' testimony and accepted as credible the medical opinion of Dr. Boc. (Decision, 7/17/20, Finding of Fact (FOF) Nos. 11-13.)Regarding the IME, the WCJ found Claimant's testimony regarding her ability to stand or walk to be inconsistent and not credible. The WCJ noted that Dr. Boc testified that Claimant was in a controlled ankle movement (CAM) boot when she appeared for the IME and would not walk with the boot off. Dr. Boc observed, however, that Claimant was able to walk without restriction while wearing the boot and bearing full weight on her foot. (FOF No. 6.) At her Heart and Lung hearing, Claimant insinuated that Dr. Boc did not have her stand or walk during the exam, but then later admitted that she told Dr. Boc that she could not walk without wearing the boot. (FOF No. 11.) The WCJ also found Claimant's use of the boot to be inconsistent with her medical treatment. Claimant testified that she continued to wear the boot on the recommendation of Dr. Horenstein. However, Dr. Horenstein already had released Claimant to full-duty work as a police officer as of September 24, 2018. (Id.) Overall, finding Claimant to be not credible, the WCJ rejected Claimant's description of the IME where it conflicted with Dr. Boc's testimony. (Id.)
The WCJ's Decision, which includes his findings of fact and conclusions of law, is not included in the Reproduced Record. It is, however, included in the certified, unpaginated record from the Board.
The WCJ also found Claimant's ongoing complaints of pain not credible based upon his own observation of her demeanor and the opinions of Dr. Boc. (FOF No. 11.) Dr. Boc testified that Claimant refused to undergo x-rays at the IME. (FOF No. 6.) He further testified that Claimant was able to dorsiflex, plantar flex, and move her left foot and ankle and that he did not observe any swelling. (Id.) The WCJ noted that, in addition to his IME exam, Dr. Boc reviewed Claimant's treatment records and history and opined that Dr. Chairman's opinion regarding Claimant's asserted causalgia was not consistent with the negative EMG conducted in June 2018. (Id.)
The WCJ accepted Dr. Boc's opinions over those of Dr. Dees where the two conflicted "based upon [Dr. Boc's] persuasive explanation of the medical records including diagnostic studies and his superior expertise treating foot and ankle injuries." (FOF No. 12.) The WCJ found that Dr. Boc credibly testified about Claimant's normal physical examination and diagnostic studies to support his opinion that Claimant was fully recovered as of May 2, 2019. (Id.) The WCJ also noted that Dr. Boc and Dr. Horenstein both observed Claimant as treating orthopedic surgeons and found that she had no atrophy or swelling to support the alleged diagnosis of CRPS. (Id.)
The WCJ accordingly granted Employer's Termination Petition and denied Claimant's Review Petition. Claimant appealed to the Board.
B. Before the Board
Before the Board, Claimant argued that the WCJ's decision was not supported by competent, substantial evidence and that the WCJ capriciously disregarded competent, substantial evidence in granting Employer's Termination Petition and denying her Review Petition. Claimant further argued that the WCJ misapplied the applicable burdens of proof and erred in failing to award Claimant litigation costs pursuant to section 440(a) of the Workers' Compensation Act (WC Act), 77 P.S. § 996(a). Claimant contended that because the WCJ expanded her injury description to include a left knee contusion, the Review Petition was resolved in her favor.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710. Section 440 was added by the Act of February 8, 1972, P.L. 25, 77 P.S. § 996(a).
The Board affirmed. Regarding Claimant's Review Petition, the Board concluded that Claimant did not meet her burden of proof, noting that the WCJ credited Dr. Boc's testimony that Claimant did not suffer from CRPS or causalgia and rejected Claimant's and Dr. Dees' testimony to the contrary. Regarding Employer's Termination Petition, the Board noted that the WCJ credited Dr. Boc's testimony that Claimant was fully recovered and that Claimant made no complaints about her left knee at her IME. (R.R. at 45a.) The Board also noted that Claimant's own doctor, Dr. Dees, testified that the "left knee would not be an injury that would be keeping her out of work" and that the knee had "improved." (R.R. at 129a.) Because no other injuries were established in the Review Petition proceedings, the Board concluded that the WCJ's findings were not arbitrary or capricious and were based on competent, substantial evidence.
Regarding Claimant's litigation costs, the Board concluded that the change in Claimant's injury description was due to Employer's Amended NCP and not to Claimant's success before the WCJ. The Board therefore concluded that the WCJ did not err in declining to award litigation costs. Claimant now appeals to this Court.
II. Discussion
Our review in a workers' compensation appeal is limited to determining whether necessary findings of fact are supported by substantial evidence, whether an error of law was committed, or whether constitutional rights were violated. City of Scranton v. Workers' Compensation Appeal Board (Roche), 909 A.2d 485, 486 n.1 (Pa. Cmwlth. 2006).
In her Petition for Review (PFR) and brief, Claimant raises three issues for our review, which we paraphrase and reorder as follows:
1. Whether the Board erred in affirming the WCJ's denial of Claimant's Review Petition because uncontroverted medical evidence unequivocally established the work-relatedness of her left knee injury, causalgia, and CRPS, and because the WCJ and Board applied the incorrect burden of proof.
2. Whether the Board erred in affirming the WCJ's grant of Employer's Termination Petition because Employer's medical expert was not competent to address Claimant's left knee injury and did not examine Claimant's left knee or opine that Claimant had fully recovered from this injury.
3. Whether the Board erred in denying reimbursement of litigation costs because the evidence established that the Amended NCP was the direct result of Claimant's filing of the May 29, 2019 Review Petition.
B. Analysis
1. Claimant's Review Petition
a. The WCJ's Credibility Determinations
Claimant first argues that the WCJ and Board erred in denying her Review Petition because uncontradicted medical evidence established the work-relatedness of her asserted left knee contusion and causalgia/CRPS. She further argues that the WCJ erred in crediting Dr. Boc's testimony regarding causalgia/CRPS because he did not adequately consider the opinions of Drs. Bennett, Chairman, and Dees, and ignored certain diagnostic criteria. In essence, Claimant argues that the WCJ should have credited the testimony of Dr. Dees and the medical reports of Drs. Chairman and Bennett over the testimony of Dr. Boc.
Under section 413(a) of the WC Act, 77 P.S. § 771, the WCJ may amend an NCP at any time during litigation of any petition if the evidence shows that the injury sustained in the original work incident is different or more expansive than that listed in the NCP. Cinram Manufacturing, Inc. v. Workers' Compensation Appeal Board (Hill), 975 A.2d 577, 580-81 (Pa. 2009). This is known as a "corrective amendment." Id. The NCP also can be amended if the claimant files a review petition and proves that another injury subsequently arose as a consequence of the original injury. Id. at 581. The party seeking to amend the NCP has the burden of proving that the NCP is materially incorrect. Namani v. Workers' Compensation Appeal Board (A. Duie Pyle), 32 A.3d 850, 856 n.4 (Pa. Cmwlth. 2011).
In a workers' compensation proceeding, the WCJ is the ultimate fact-finder and the sole arbiter of the credibility and weight of the evidence. Rissi v. Workers' Compensation Appeal Board (Tony DePaul & Son), 808 A.2d 274, 278-79 (Pa. Cmwlth. 2002). If the facts as found by the WCJ rest on competent evidence, they may not be disturbed. Bartholetti v. Workers' Compensation Appeal Board (School District of Philadelphia), 927 A.2d 743, 747 (Pa. Cmwlth. 2007). It is irrelevant whether the record contains evidence to support findings other than those made by the WCJ; the critical inquiry is whether there is evidence to support the findings actually made. Furnari v. Workers' Compensation Appeal Board (Temple Inland), 90 A.3d 53, 60 (Pa. Cmwlth. 2014). The WCJ is free to accept or reject the expert testimony of any witness, including a medical witness, in whole or in part. Riggle v. Workers' Compensation Appeal Board (Precision Marshall Steel Co.), 890 A.2d 50, 57 n.11 (Pa. Cmwlth. 2006). On appeal, the Board may review the nature of the evidence submitted to determine if it is sufficient to state a claim; however, reinterpretation of the evidence by the Board is in excess of its scope of review. Bartholetti, 927 A.2d at 747. Although the Board must determine whether the WCJ's findings have the requisite measure of support in the record, findings of fact can be overturned only if they are arbitrary or capricious. Lehigh County Vo-Tech v. Workmen's Compensation Appeal Board (Wolfe), 652 A.2d 797, 800 (Pa. 1995).
A capricious disregard of the evidence occurs when the WCJ deliberately or baselessly disregards apparently trustworthy evidence. Williams v. Workers' Compensation Appeal Board (USX Corporation-Fairless Works and USX Corp.), 862 A.2d 137, 144 (Pa. Cmwlth. 2004). Where there is substantial evidence to support a WCJ's findings, and those findings support the WCJ's legal 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). Where the WCJ discusses the evidence in question, but rejects it as less credible or assigns it less evidentiary weight than other evidence, the WCJ's determination does not constitute a capricious disregard of that evidence. Reed v. Workers' Compensation Appeal Board (Allied Signal, Inc.), 114 A.3d 464, 471 (Pa. Cmwlth. 2015).
Claimant argues that, because Dr. Dees, Dr. Bennett, and Dr. Chairman all opined that Claimant suffers from causalgia/CRPS, the WCJ erred in crediting and accepting Dr. Boc's contrary opinion. Claimant argues that the WCJ "erroneously cited no authority whatsoever for his decision summarily [d]ismissing [Claimant's] Review Petition" and "flagrantly failed to adjudicate the work-related causalgia and/or CRPS solely because he knew that [Dr.] Boc, only a podiatrist, did not and medically could not unequivocally or credibly opine as to the inclusion of these . . . work injuries . . . ." (Claimant's Br. at 33-34.) (extraneous emphasis omitted).
The WCJ made the following credibility determinations regarding the testimony of Claimant, Dr. Boc, and Dr. Dees:
11. This Judge has reviewed and considered the entire testimony of Claimant and finds her to be not credible. Claimant's ongoing complaints are not credible based on this [WCJ's] observations of her demeanor and the opinions of Dr. Boc. Claimant's testimony at the December 3, 2019 hearing that she continued to wear a boot on her left foot as recommended by Dr. Horenstein is not persuasive since Dr. Horenstein had released her to full[-]duty work as a police officer as of September 24, 2018. She insinuated during her Heart and Lung [Act] testimony that Dr. Boc did not have her stand or walk during the examination, but then admitted that she told the doctor she could not do it without the boot on her leg. Overall, her description of what occurred at the examination with Dr. Boc is rejected where it conflicts with the doctor's testimony.
12. This [WCJ] has reviewed and considered the entire testimony of Dr. Boc and finds him to be credible. Dr. Boc credibly testified to Claimant's normal physical examination and normal diagnostic studies to support his opinion that Claimant fully recovered from the February 21, 2018 work injury of a left ankle sprain/strain and left knee contusion as of May 2, 2019. This was further supported by the opinions of Claimant's own treating orthopedic surgeon, Dr. Horenstein, who released Claimant to full duty work as of September 2018 based on her benign examination. Claimant also reported no other pain complaints, including nothing related to her left knee, when she saw Dr. Boc on May 2, 2019. Dr. Boc's testimony also credibly explained how Claimant's findings upon physical examination and from her diagnostic studies were not at all suggestive of a diagnosis of CRPS, which was also what Dr. Horenstein observed as her treating orthopedic surgeon. Claimant had no atrophy or swelling to support the alleged diagnosis of CRPS. Her EMG was also normal. Dr. Boc's opinions are accepted over those of Dr. Dees where the two conflict based on his persuasive explanation of the medical records including the diagnostic
studies and his superior expertise treating foot and ankle injuries.
13. This Judge has reviewed and considered the entire testimony of Dr. Dees and finds her to be not credible. Significantly, Dr. Dees did not review all of Claimant's pertinent medical records, including those from the hospital and occupational health immediately following the work injury. Dr. Dees further conceded that Claimant's first MRI showed no tears whatsoever. Dr. Dees also admitted that the findings on Claimant's MRIs were indicative of an ATFL tear, which she further conceded would normally heal without surgery up to 16 weeks following the February 21, 2018 work injury. Furthermore, Dr. Dees did not perform provocative testing to confirm the alleged diagnosis of an ongoing ATFL tear. She also conceded that she would have deferred to the opinion of an orthopedic surgeon in connection with the alleged CFL tear. Dr. Horenstein, Claimant's own treating orthopedic surgeon, did not find that Claimant suffered from either of those tears, or that Claimant required any work restrictions. Lastly, Dr. Dees admitted that Claimant's left knee was not causing any of her alleged ongoing disability, which supports a mild injury that had resolved.(FOF Nos. 11-13.)
We find the WCJ's credibility determinations to be supported by the record and lacking in any capricious disregard of competent evidence. Dr. Boc, a podiatric surgeon with particular expertise in dealing with foot and ankle injuries, opined that, based on his objective observations of Claimant's foot and ankle and his review of Claimant's pertinent medical records, her work injuries had resolved and did not restrict her from returning to work. Although it is true that Dr. Boc's opinions were in several respects contrary to those of Drs. Bennett and Chairman, they were consistent with those of Dr. Horenstein, who opined that Claimant could return to work without restriction.
We note that Dr. Dees, Claimant's only medical witness, is a specialist in family medicine with no expertise in foot and ankle injuries. The opinions of Drs. Bennett, Chairman, and Horenstein all were submitted via written reports that were introduced at either the hearings before the WCJ or at the depositions of Claimant, Dr. Dees, and Dr. Boc.
Claimant throughout her brief essentially argues that we ought to adopt an interpretation of the evidence contrary to the WCJ because Claimant's interpretation is the correct one. That, however, is not within our standard and scope of review. We determine only whether competent, substantial evidence supports the WCJ's findings and whether the WCJ made arbitrary or capricious credibility determinations. We find in the record competent, substantial evidence and no capricious disregard of other evidence. Claimant's arguments suggesting to the contrary are without merit.
b. Reasoned Decision
Claimant next argues that the WCJ failed to issue a reasoned decision and capriciously disregarded substantial, competent evidence in "both denying and granting [the] Review Petition . . . ." (Claimant's Br. at 34.) Claimant then goes on for many pages of her brief to again argue that the WCJ should have accepted the testimony of Dr. Dees (along with Drs. Chairman and Bennett) and disregarded the testimony of Dr. Boc and the opinions of Dr. Horenstein.
We have stated:
Section 422(a) of the [WC] Act, [77 P.S. § 834], aids meaningful appellate review by requiring the WCJ to issue a reasoned decision containing findings of fact and conclusions of law based upon the record as a whole and clearly stating the rationale for the decision. When the WCJ is faced with conflicting evidence, section 422(a) of the Act requires the WCJ to state the reasons for rejecting or discrediting competent evidence. The reasoned decision requirement does not permit a party to challenge or second-guess the WCJ's reasons for credibility determinations; determining the credibility of witnesses remains the quintessential function of the WCJ as the finder of fact.Reed, 114 A.3d at 470 (internal citations omitted).
As we already have discussed, the WCJ's findings that Claimant's work-related injuries have ceased and that she does not suffer from causalgia/CRPS are supported by substantial, competent evidence of record. Further, the WCJ set forth adequately his reasons for rejecting Claimant's and Dr. Dees' testimony regarding Claimant's subjective complaints of ongoing pain and alleged causalgia/CRPS. The WCJ's decision contained thorough findings and conclusions explaining the rationale for his credibility determinations and decision. It therefore is reasoned and compliant with section 422(a) of the WC Act.
2. Employer's Termination Petition
Regarding the Termination Petition, Claimant argues that the WCJ erred in granting the petition because Employer's medical expert, Dr. Boc, (1) is not competent to testify regarding a knee injury, (2) failed to examine Claimant's left knee contusion, (3) failed to opine that Claimant had recovered fully from the left knee contusion, and (4) failed to acknowledge the left knee contusion as a work-related injury. We again disagree.
Section 413(a) of the WC Act states, in pertinent part:
A [WCJ] . . . may, at any time, . . . terminate a [NCP], . . . upon petition filed by either party . . . upon proof that the disability of an injured employe[e] has . . . temporarily or finally ceased. . . . Such . . . termination shall be made as of the date upon which it is shown that the disability of the injured employe[e] has . . . temporarily or finally ceased. . . .77 P.S. § 772. "To succeed in a termination petition, an employer bears the burden of proving by substantial evidence that a claimant's disability ceased, or any remaining conditions are unrelated to the work injury." Westmoreland County v. Workers' Compensation Appeal Board (Fuller), 942 A.2d 213, 217 (Pa. Cmwlth. 2008). The burden is considerable given that disability is presumed to continue unless and until proven otherwise. Giant Eagle, Inc. v. Workmen's Compensation Appeal Board (Chambers), 635 A.2d 1123, 1127 (Pa. Cmwlth. 1993).
An employer meets its burden in a termination proceeding by presenting competent medical evidence of the claimant's full recovery from the work injury. Koszowski v. Workmen's Compensation Appeal Board (Greyhound Lines, Inc.), 595 A.2d 697, 699 (Pa. Cmwlth. 1991). The NCP establishes the description of the work injury and the employer must establish full recovery from the injury or injuries listed there. City of Philadelphia v. Workers' Compensation Appeal Board (Butler), 24 A.3d 1120, 1124 (Pa. Cmwlth. 2011). In determining whether the evidence supports a termination of benefits, we must examine the entire record, and a party can meet its burden with evidence "introduced by his adversary." SKF USA, Inc. v. Workers' Compensation Appeal Board (Smalls), 728 A.2d 385, 388 n.3 (Pa. Cmwlth. 1999).
Here, with regard to Claimant's knee injury specifically, although it is true that Dr. Boc did not examine Claimant's left knee or opine that the left knee injury had ceased, Claimant made no complaints of pain in her left knee during the IME. Dr. Boc therefore had no reason to examine it. See Hall v. Workers' Compensation Appeal Board (America Service Group), 3 A.3d 734, 742 (Pa. Cmwlth. 2010). Moreover, Dr. Dees, Claimant's own treating physician, opined that Claimant's knee injury had improved and did not prevent her from returning to work. (Dees Dep., 10/4/19, at 44; R.R. 129a.) There accordingly is no competent, unequivocal evidence in the record supporting a compensation award for any injury to Claimant's left knee, notwithstanding the fact that Employer filed the Amended NCP adding the left knee contusion to the injury description. The WCJ's finding that Claimant is fully recovered thus is supported by the record, and any failure of Dr. Boc to mention or opine on the knee injury is immaterial.
3. Litigation Costs
Claimant finally argues that the WCJ erred in not awarding litigation costs associated with what she contends was her partially-successful Review Petition.
In relevant part, section 440(a) of the WC Act provides that, in contested cases, a claimant "in whose favor the matter at issue has been finally determined in whole or in part" shall receive, "in addition to the award for compensation, a reasonable sum for costs incurred for attorney's fee, witnesses, necessary medical examination, and the value of unreimbursed lost time to attend the proceedings." 77 P.S. § 996(a). Claimant argues that Employer filed the Amended NCP as a direct result of her filing the Review Petition. Because the Amended NCP added the knee contusion to the work injury description, Claimant contends that the Review Petition was, in this respect, successful. She also argues that the WCJ's failure to render any findings of fact, conclusions of law, or formal decision granting her litigation costs rendered the decision unreasoned.
Claimant's arguments fail for at least three reasons. First, from its plain language, section 440(a) applies only to "contested cases." Although Employer initially filed an answer to the Review Petition denying all allegations, Employer nevertheless filed the Amended NCP adding the left knee contusion to the injury description, which was the only relief requested. The mere fact that the Amended NCP followed in time the filing of the Review Petition does not mean that Claimant was "successful" on a "contested" claim.
Second, our case law limits section 440(a)'s applicability to matters in which a claimant obtains a "financial benefit." Watson v. Workers' Compensation Appeal Board (Special People in Northeast), 949 A.2d 949, 955-56 (Pa. Cmwlth. 2008) (citing Amoratis v. Workers' Compensation Appeal Board (Carolina Freight Carriers), 706 A.2d 368 (Pa. Cmwlth. 1998)). Even assuming that Claimant was, in a sense, "successful" in adding her left knee contusion to her injury description, the WCJ nevertheless concluded that Claimant had recovered completely from that injury and terminated her benefits. Further, Employer contested Claimant's request at the WCJ hearing that causalgia and/or CRPS be added to the injury description. The WCJ ultimately concluded that those asserted conditions did not support an award of additional benefits. Claimant therefore was not successful on those claims and is not entitled to any associated litigations costs.
Third, the WCJ did not fail to render a "reasoned decision" on the question of litigation costs because the only claim asserted in the original Review Petition, the addition of the left knee contusion, had been resolved by the filing of the Amended NCP prior to hearing. The WCJ made findings acknowledging that fact, see FOF Nos. 1, 3, and did not "grant" the Review Petition. Rather, the WCJ denied in toto the remaining contested claims and terminated Claimant's benefits. That decision was neither arbitrary nor capricious and does not leave this Court guessing as to the WCJ's reasoning. We accordingly find Claimant's last issue also to be without merit.
III. Conclusion
Because we conclude that the WCJ's Decision was supported by substantial evidence and the WCJ did not err in either granting the Termination Petition or denying the Review Petition, we affirm the Board's decision.
ORDER
AND NOW, this 17th day of April, 2023, the May 20, 2021 Order of the Workers' Compensation Appeal Board hereby is AFFIRMED.