Opinion
No. 1806 C.D. 2011
06-27-2012
Kathryn Thompson, Petitioner v. Workers' Compensation Appeal Board (Rhone Poulenc, Inc. and AIG Claim Services), Respondents
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Kathryn Thompson (Claimant) challenges the Order of the Workers' Compensation Appeal Board (Board) which affirmed the Workers' Compensation Judge's (WCJ) denial of her Modification/Reinstatement Petition.
This dispute began over twenty-four years ago, on January 4, 1988, when Claimant sustained a low back injury while working at Rhone Poulenc, Inc. (Employer). Claimant received total disability benefits in the amount of $377.00 per week based upon an average weekly wage of $738.71.
Employer's 1990 Modification Petition
On June 11, 1990, Employer filed a Modification Petition based on the opinion of John Duda, M.D. (Dr. Duda), a board-certified orthopedic surgeon, that Claimant could return to light duty work as of June 26, 1989. Between 1990 and 1995, medical depositions were taken and numerous hearings were held before WCJ Donald Poorman (WCJ). Employer presented the deposition testimony of Dr. Duda. When Dr. Duda first examined Claimant in September 1988 there was evidence of disc degeneration at L5-S1 and a disc bulge and possibly a small herniation at L4-5. Dr. Duda diagnosed Claimant with a right sided disc herniation but with no evidence of progressive neurological deficit or indication for surgical intervention. Dr. Duda examined Claimant again 18 months later on June 26, 1989. Claimant's physical examination revealed that her reflexes were bilaterally symmetrical and equal. There were no motor or sensory deficits. An MRI film demonstrated bulging, but no herniations, at the L4-L5 and L5-S1 levels. Dr. Duda opined that Claimant might have sustained a disc herniation, but as of June 26, 1989, Claimant was able to return to light duty work on an everyday basis.
From then on WCJ Poorman presided over all proceedings in this matter.
The summaries of all medical depositions contained in this Decision have been taken from citations and references to the actual deposition transcripts which were included in this Court's March 10, 2008, Memorandum Decision.
Claimant presented the deposition testimony of John Sbarbaro, M.D. (Dr. Sbarbaro), a board-certified orthopedic surgeon, who examined Claimant on July 13, 1993, and Stephen Jaffe, M.D., (Dr. Jaffe), a board-certified radiologist, who performed a CAT scan on Claimant on July 30, 1991. Both experts opined that Claimant's work injury worsened and that she was totally disabled as of the dates of their examinations.
Dr. Sbarbaro's physical examination in 1993 revealed that Claimant walked with a right leg limp; she had limited range of motion, marked spasm, the right sciatic nerve was tender, and straight leg raising was positive at seventy degrees. Motor testing revealed right foot weakness and impaired nerve conduction in both ankles. Dr. Sbarbaro reviewed diagnostic studies which revealed discogenic disease with evidence of thecal sac impingement at L4-5 and L5-S1.
Dr. Jaffe testified that the CAT scan performed on Claimant on July 30, 1991, revealed protrusions and disc herniations at L3-4 and L5-S1.
Claimant testified before the WCJ in 1993, however, the notes of testimony and exhibits from that hearing were apparently lost and could not be reproduced. Employer redeposed Claimant on November 28, 1995. Claimant's testimony was summarized by the WCJ, as follows:
a. Claimant appeared at the hearing utilizing a cane and wearing a leg brace prescribed by Dr. Leiner.
b. After Claimant's work injury of January 4, 1988 she came under the care of Dr. Gratch who provided physical therapy treatment through May, 1989. During his treatment Dr. Gratch informed Claimant that he had released her to light duty work. In 1990, Claimant came under the care of Dr. Leiner who treated Claimant through May of 1995.
c. Claimant recalled having met with vocational rehabilitation specialists and having received the certified letters [notifications of four jobs] from Barbara Richards, as set forth more fully in finding number 8 above. Claimant did not apply to any of the four jobs because she believed that she was in too much pain to commute by public transportation, and in too much pain to perform the duties required of the jobs.
d. As of November 28, 1995, Claimant had pain in her lower back, across her buttocks, and down her legs. Claimant's pain had worsened since she began seeing Dr.
Leiner in 1990. Claimant cannot perform housework and cannot sit or stand for any length of time without pain.WCJ Decision, July 3, 1996, Finding of Fact No. 9(a)-(e) at 8-9.
e. Although Dr. Gratch informed Claimant that she could return to light duty work, her subsequent doctor, Dr. Leiner, did not. No doctor ever informed Claimant that she could perform the specific jobs identified in finding number 8 above.
In a Decision circulated on July 3, 1996, the WCJ accepted the opinion of Dr. Duda that Claimant was able to perform light duty work. In so doing, the WCJ impliedly rejected Claimant's testimony that she could not perform light duty work. The WCJ also rejected the opinions of Dr. Jaffe and Dr. Sbarbaro because they concerned Claimant's condition in 1991 and 1993; therefore, they were not relevant or probative to the issue of her work capacity in June 1989. The WCJ granted the Modification Petition and reduced Claimant's benefits to a partial disability rate of $325.81 as of October 11, 1989. The Board affirmed. Claimant appealed to this Court which affirmed by decision dated October 22, 2003. The Pennsylvania Supreme Court denied allowance of appeal on May 18, 2004.
Claimant's 1998 Modification/Reinstatement Petition
While Employer's Modification Petition was being reviewed on appeal, Claimant filed a Modification/Reinstatement Petition on January 16, 1998, to increase her benefits from partial to total. Claimant alleged that her condition worsened and that she was once again totally disabled as of January 1, 1998. On March 23, 1999, she amended her Modification Petition to allege that she was totally disabled as of October 12, 1989, which was one day after the date she was deemed capable of returning to light duty work.
Claimant's 1998 Modification Petition is the subject of this appeal.
In support of her Modification/Reinstatement Petition, Claimant presented the same depositions of Dr. Sbarbaro and Dr. Jaffe that she introduced into evidence in opposition to Employer's Modification Petition. Again, those doctors' opinions related to Claimant's condition as of 1991 and 1993.
Claimant did not introduce the transcript of her November 28, 1995, testimony (from the prior proceeding) into evidence in this proceeding.
Claimant also presented the deposition testimony of Seymour Leiner, M.D. (Dr. Leiner), an orthopedist, who was not board-certified and who had no staff privileges at any area hospitals. Dr. Leiner first examined Claimant on October 22, 1990, and diagnosed Claimant with disc herniations at L4, L5, and S1. He opined that Claimant was totally disabled as of his first examination in 1990. Dr. Leiner treated Claimant on an intermittent basis between 1990 and 1998, but Claimant's condition did not improve; it began to worsen. He testified that Claimant developed a right foot drop, and that she developed pain on her left side. She had trouble walking even with an ankle brace. He reviewed EMG results which indicated a moderate to severe radiculopathy at L4, L5 and S1.
Employer offered the second deposition of Dr. Duda, who examined Claimant again on April 20, 1999. He opined when he first examined Claimant in 1988, he found evidence of a herniated disc at L4-5, but when he examined her again eighteen months later in 1989, there was no longer any clinical evidence of a herniated disc. Then when he examined her ten years later, in 1999, Claimant had a quadriceps atrophy of the right lower extremity at the L3-4 level, and what appeared to be peroneal palsy (referring to the outside of the leg) at L4-5, but which did not show up on the EMG study. Dr. Duda opined that the work-injury could not be the cause of these two conditions, but opined that the cause may be multiple sclerosis or that there may be a demylenating process going on.
Claimant did not testify in support of her Modification/Reinstatement Petition. A hearing was held on December 18, 2003. The WCJ ordered Claimant to appear to testify at the next live hearing which was scheduled for February 26, 2004, in Dresher, Pennsylvania, which was nine miles from Claimant's home. Claimant's counsel appeared and represented that Claimant fell down the stairs and was not physically able to attend the hearing. The WCJ indicated that he would allow Claimant to testify via telephone; however, Claimant's counsel indicated that Claimant was unable to be reached by telephone.
Claimant's counsel then attempted to introduce into evidence two large boxes of documents which purportedly contained medical records and transcripts. Employer's counsel objected because the documents were not previously produced. The WCJ sustained Employer's objection and refused to admit the records or consider them.
Claimant's counsel also attempted at the February 26, 2004, hearing to introduce a "doctor's note" written by Dr. Leiner dated February 23, 2004, which stated that Claimant was "physically unable to attend the hearing because of her work-related injury." Hearing Transcript, February 26, 2004, (H.T.) at 6; R.R. at 392b. The WCJ refused to receive the "doctor's note" into evidence because it was hearsay.
In a decision circulated on January 31, 2005, the WCJ denied Claimant's Modification/Reinstatement Petition because Claimant failed to establish that her work-related injury changed or that she again became totally disabled from the work injury as of October 12, 1989. Based on Claimant's refusal to testify, the WCJ made an "adverse inference" that Claimant's testimony would not have supported her allegation that her work-related condition worsened as of October 12, 1989. WCJ Decision, January 31, 2005, Finding of Fact No. 11, at 4.
In Finding of Fact No. 8, the WCJ rejected the opinions of Claimant's medical experts, Dr. Sbarbaro and Dr. Jaffe because, once again, the doctors' opinions did not relate to Claimant's condition as of October 12, 1989, the date alleged in Claimant's Modification Petition. The WCJ further rejected their opinions "to the extent that they support a worsening of condition on or after 1993" because "they are based upon Claimant's subjective symptoms which have not been corroborated by Claimant's testimony." WCJ Decision, January 31, 2005, Finding of Fact No. 8, at 3.
Claimant appealed to the Board which affirmed.
By Memorandum Opinion and Order dated March 10, 2008, authored by the Honorable Rochelle Friedman, this Court vacated the Board's order and remanded the matter because the WCJ's rejection of Claimant's medical experts contained factual and legal error. Initially, this Court found that the WCJ did not err when he rejected Dr. Leiner's opinion because he cited multiple valid reasons for finding his testimony unpersuasive. Further, this Court found that the WCJ did not err in rejecting the opinions of Drs. Sbarbaro and Jaffe as unrelated to Claimant's condition on October 12, 1989, because their testimony did not address this period of time.
Specifically, this Court found the following Finding of Fact to be in error:
8. I have carefully reviewed the medical testimony of Dr. Sbarbaro and Dr. Jaffe and find such testimony to lack credibility and persuasiveness. The doctors' opinions were given in 1993 and 1994 and do not relate to Claimant's condition as of October 12, 1989, the date alleged in the present Petition. To the extent that they support a worsening of condition on or after 1993, their opinions are unreliable because they are based upon Claimant's subjective symptoms which have not been corroborated by Claimant's testimony.
However, with respect to the worsening of Claimant's work-related condition after 1993, this Court found that the WCJ erred when he concluded that Dr. Sbarbaro and Dr. Jaffe based their opinions solely on Claimant's subjective symptoms. This Court pointed out that they relied on Claimant's medical history, and records, physical examination, objective tests and diagnostic studies to form their opinions. This Court also noted that there was no dispute that Claimant's condition worsened after 1990. Rather, the dispute was whether the worsening was related to her work injury. Because the WCJ made no finding or credibility determinations with respect to whether Claimant's current inability to work due to her worsened condition was related to her work injury, this Court remanded the matter to the WCJ to make necessary findings, credibility determinations and conclusions. This Court's decision which remanded the matter to the WCJ did not require further hearings and did not require that the parties be given an opportunity to file new briefs in support of their respective positions.
The WCJ's Decision on Remand
On remand, the WCJ once again denied Claimant's Modification Petition. In a decision circulated on June 1, 2009, the WCJ found Dr. Duda to be more credible than Claimant's three medical experts regarding causation of Claimant's current physical condition and disability. Specifically, the WCJ found Dr. Duda to be more credible given that diagnostic tests taken in 1990 did not show evidence of peroneal palsy or lesion at L4-5, while tests in 1999 were positive for these conditions.
The WCJ explained that he rejected Dr. Leiner's opinion because it was based, in part, on hearsay of Claimant which was not corroborated by Claimant. In addition, Dr. Leiner was not board-certified, and relied on diagnostic tests results without reviewing actual films. The WCJ also rejected Dr. Leiner's opinion given the fact that Claimant had been released to light duty work. The WCJ again rejected the opinion of Dr. Sbarbaro and Dr. Jaffe because they were given in 1993 and 1994 and did not relate to Claimant's condition as of October 12, 1989, the date alleged in the Modification Petition. In addition, their opinions were contrary to the adverse inference taken from Claimant's refusal to testify and from the resulting finding of fact that Claimant's testimony would not have supported her allegations that her work-related condition worsened as of October 12, 1989.
With respect to Claimant's November 28, 1995, testimony, the WCJ noted that this transcript was not part of the evidentiary record in this proceeding. A summary of Claimant's testimony appeared in the WCJ's July 3, 1996, Decision. However, the WCJ noted that Claimant's testimony was not accepted as credible in that Decision.
The WCJ concluded that Claimant failed to sustain her burden "to establish that her work-related condition changed or that her disability worsened on or after October 12, 1989." WCJ Decision, June 1, 2009, at 3. The Board affirmed.
Claimant's Appeal
On appeal, Claimant raises two issues, the first of which consists of fifteen lines of double-spaced text, over 175 words, and raises thirteen different substantive matters:
This Court's scope of review is limited to determining whether any constitutional rights have been violated, whether any errors of law have been committed or whether any necessary findings of fact are not supported by substantial evidence. Philadelphia Newspapers, Inc. v. Workers' Compensation Appeal Board (Guarancino), 554 Pa. 203, 675 A.2d 1213 (1996).
The second issue is whether the WCJ erred when he refused to admit Dr. Leiner's "doctor's note" based on hearsay. This issue was waived. See footnote 9.
1. When the administrative adjudications circulated June 1, 2009, by the WCJ and affirmed by the Board on August 24, 2011, denying claimant/appellant's Thompson's petition for reinstatement, counsel fees are contrary to Workers' Compensation Act, did not strictly meticulously, fully and completely comply with Commonwealth Court's specific decision entered 3/10/08; erroneous; not in accordance with law and administrative rules; unsupported by sufficient, substantial, competent evidence; inconsistent and contradictory; arbitrary and capricious; violate claimant's fundamental Constitutional rights; fail to properly allocate each party's relative burden of proof involving appellant's reinstatement petition; violates all the mandatory reasoned decision provisions under the Act, 77 P.S. section 834; not based upon a fully, true, complete and accurate certified remanded record as a whole; fail to render all necessary findings of fact; erroneously substitutes and applies an inapplicable
adverse inference rule contrary to applicable law and the record to support the adjudication including all weight and credibility findings and conclusion; and manifestly and willfully contrary to all the prior findings, conclusions, and adjudications, did the Board err in affirming the WCJ's adjudication denying appellant's reinstatement petition and petition for remand?Claimant's Brief at 4.
The Argument Section of Claimant's Brief, which is no more succinct and equally unintelligible, goes on for sixty-nine pages. Much of it is repetitive and rambling. Many of Claimant's contentions and arguments have either been waived or are contrary to determinations already made by this Court in its March 10, 2008, Memorandum Decision, and they reiterate the same arguments that were raised and rejected in the prior proceedings. After sorting through the quagmire, this Court has attempted to identify what it believes to be the only two legitimate issues on appeal that relate specifically and exclusively to the WCJ's June 1, 2009, Decision. This Court strenuously cautions counsel that this Court should not be required to, and will not in the future, expend needless time and effort simply to make sense of counsel's Brief.
In fact, in its March 10, 2008 Memorandum Decision, this Court previously remarked on the "laborious process of interpreting" arguments and actually cited an example of an offending 100-plus word sentence which was representative of those included throughout her Brief. Nevertheless, counsel has once again engaged in this style of argument which, contrary to counsel's intentions, has actually hindered this Court's review.
For example, Claimant contends that the WCJ erred when he excluded, on the basis of hearsay, Dr. Leiner's note which stated that Claimant was unable to attend the February 26, 2004, hearing due to her work-injury. Claimant waived this issue because she failed to raise it in her initial appeal from the WCJ's January 31, 2005, Decision. Nabisco Brands, Inc. v. Workers' Compensation Appeal Board (Tropello), 763 A.2d 555, 558 (Pa. Cmwlth. 2000) (holding that "[a]n issue must be preserved at every stage in the proceeding; otherwise it is waived.").
For example, Claimant argues that the WCJ erred when he took an adverse inference against her. This Court specifically addressed and finally disposed of this issue in its March 10, 2008, Memorandum Decision. Clearly, Claimant has no basis whatsoever to raise it again here.
"Summary" of Claimant's November 28 , 2005 Testimony
From what this Court is able to discern, on pages 26 through 32 of the Brief, Claimant first contends that the WCJ erred because he did not consider his "summary" of her November 28, 2005, testimony in the litigation of Employer's Modification Petition. She argues that by disregarding this "summary" the WCJ failed to comply with this Court's March 8, 2010, decision that the "summary" is part of the evidentiary record in this proceeding. She argues that the WCJ's "summary" supported her Reinstatement Petition "as to a worsening of her condition since she began treating with Dr. Leiner in 1990" and "specifically corroborated the opinions of Drs. Sbarbaro and Jaffe as to a worsening of her condition in 1993." This Court rejects this argument for several reasons.
An excerpt from her actual argument reads verbatim:
On March 10, 2008, this Court specifically decided that the WCJ's virtually identical 1/31/05 adjudication and rationale including weight and credibility findings of fact rejecting the medical evidence from claimant's medical witnesses, Drs. Sbarbaro and Jaffe, to the extent that their testimony and opinions did not support a worsening of claimant's condition on or after 1993 because their testimony and opinions were based upon claimant's subjective symptoms which were not corroborated by claimant's testimony clearly constituted both legal and factual err (sic) and vacated the administrative decisions and remanded the reinstatement petition to the Board to remand to the WCJ for necessary findings and conclusion based on the evidentiary record as a whole which specifically included Thompson's (Claimant) November 28, 1995, "testimony" summarized in the WCJ's 1996 decision as part of the evidentiary record and which testimony specifically supported her reinstatement petition as to a worsening of her condition since she began treating with Dr. Leiner in 1990, inter alia, and further specifically corroborated the opinions of Drs. Sbarbaro and Jaffe as to a worsening of her condition in 1993! This court specifically decided that the summary of claimant's "testimony" identified and admitted as employee's witness and Exhibit J-1 in the 1/31/05 adjudication is part of the evidentiary record in this proceeding and clearly supports her reinstatement petition and specifically corroborates all the uncontroverted medical evidence and testimony from claimant's medical witnesses including specifically Drs. Sbarbaro and Jaffe that her condition worsened since she began treating with Dr. Leiner in 1990, inter alia, and that her condition worsened on and after 1993. (Emphasis in original).--------
According to the "summary" Claimant testified that as of November 28, 1995, she had pain in her lower back, across her buttocks, and down her legs, and that her pain worsened since she began seeing Dr. Leiner in 1990. The WCJ found, contrary to her testimony that her condition worsened, that she was capable of working light duty, and her benefits were reduced from total to partial as of October 11, 1989. Regardless of whether the evidentiary record contained the actual transcript of Claimant's testimony or merely a summary, both were essentially immaterial to this proceeding because the WCJ did not find Claimant to be credible. Indeed, the WCJ specifically noted that Claimant's testimony " was not accepted as fact in that Decision." WCJ Decision, June 1, 2009, at 3 (Emphasis added).
Nevertheless, Claimant insists that this Court's earlier remark that the "summary" was part of the record in this proceeding meant that the WCJ was required to accept it as fact. However, this Court never held that the WCJ was required to consider the Summary and accept it as fact. Rather, in footnote 15 of this Court's March 10, 2008, Decision, this Court simply noted that Claimant's testimony during the litigation of Employer's Modification Petition was summarized by the WCJ in his 1996 Decision and that the Decision was "a part of the record" in these proceedings. This Court specifically found, contrary to Claimant's representations, that Claimant's testimony was "not relevant or probative" to the issue of her work capacity in 1989, which was the subject of her Reinstatement Petition. This Court also found that the "summary" did "not corroborate the opinions of Drs. Sbarbaro and Jaffe as to a worsening of her condition on or after 1993." Memorandum Decision, March 8, 2010, at 15, n. 15.
Claimant also contends along this same line that the WCJ failed to "strictly, meticulously, and completely comply with this Court's March 10, 2008, remand decision" because his "2009 Decision, findings of fact and rationale are virtually identical to the WCJ's prior 1/31/05 decision" which was vacated by this Court.
To reiterate, the WCJ originally (in its January 31, 2005, Decision) rejected the opinions of Dr. Sbarbaro and Dr. Jaffe "to the extent that they support a worsening of condition on or after 1993" because "they are based upon Claimant's subjective symptoms which have not been corroborated by Claimant's testimony." WCJ Decision, January 31, 2005, Finding of Fact No. 8, at 3.
In its March 10, 2008, Memorandum Decision, this Court noted that the opinions of Dr. Sbarbaro and Dr. Jaffe that Claimant's condition had worsened were not based "solely upon Claimant's subjective complaints." This Court found that the doctors also relied upon Claimant's medical history, records, physical examination and diagnostic studies. This Court did not vacate the WCJ's Decision because of some error in his determination that their opinions, to the extent that they were based on her subjective complaints, were not corroborated by her testimony. This Court remanded the matter so that the WCJ could: (1) reassess Dr. Sbarbaro's and Dr. Jaffe's credibility; and (2) make a determination as to whether her worsening condition was related to her work injury.
In his June 1, 2009, Decision on remand, the WCJ did not make an identical finding of fact with regard to the credibility of Claimant's medical experts. He did not reject the doctors' opinions because they were based solely on Claimant's subjective complaints which were uncorroborated by her testimony. Rather, the WCJ noted that the doctors' opinions that Claimant's work-related condition worsened, were, in fact, contrary to the adverse inference taken from Claimant's refusal to testify, i.e., her work-related condition did not worsen.
Parties' Relative Burdens of Proof
When a claimant fails to return to work that is within her physical capabilities, as here, it is the claimant's burden to prove that through no fault of her own her earning power is once again adversely affected by her disability, and that the disability which gave rise to the original claim, in fact, continues. Bufford v. Workers' Compensation Appeal Board (North American Telecom), 606 Pa. 621, 637, 2 A.3d 548, 558 (2010); Cyprus (Rag) Cumberland Resources v. Workers' Compensation Appeal Board (Stewart), 767 A.2d 1151 (Pa. Cmwlth. 2001). Once the claimant meets this burden, the opposing party must show that the claimant's loss in earnings was not caused by the disability arising from the work-related injury. Bufford.
At pages 32-47 Claimant argues that that she met her burden of proof "with respect to her disabilities after she began treatment with Dr. Leiner in 1990 and/or on or after 1993 as specifically decided by the Court in its 3/10/08 decision." Again, she contends that the "summary" of her testimony and Dr. Leiner's testimony provided "uncontroverted" evidence that her pain worsened and she was unable to return to work as of 1990. She argues, in the alternative, that the opinion of Dr. Sbarbaro, given in 1993, proved that she could not return to work as of 1993.
First, this Court did not decide in its March 10, 2008, Memorandum Decision that Claimant's work-related disability continued after 1990, when she began treatment with Dr. Leiner, or after 1993. Further, for the reasons explained, the "summary" of Claimant's 1995 testimony to the effect that her pain worsened in 1990 did not automatically support reinstatement. The statements therein were not "facts" that the WCJ was required to accept. As for Dr. Leiner's testimony relating to her condition in 1990, this Court in its March 10, 2008, affirmed the WCJ's rejection of Dr. Leiner's testimony.
As for Claimant's contention that the WCJ erred because she met her burden of proving her disability continued after 1993, this Court rejects this argument as well. Claimant's Reinstatement Petition alleged a worsening of her condition as of 1989. The WCJ accepted Dr. Duda's testimony to the extent that it supported a finding that Claimant's work-injury and/or disability did not worsen on or after October 12 , 1989 . This period included 1993.
The bottom line is that Claimant's overall physical condition worsened in the ensuing years since her original injury. However, Claimant failed to show that her disability which gave rise to the original claim (a minor disc herniation), in fact, continued on or after 1989. As Employer's expert testified, Claimant's herniated disc improved as of 1989, and her increased pain and worsening condition were related to other non-work related causes, including "multiple sclerosis," or a "demylenating process." Critically, Dr. Duda, whom the WCJ credited, testified that the diagnostic tests performed in 1990 did not show evidence of peroneal palsy or lesion at L4-5 , while tests performed in 1999 were positive for those conditions. In other words, the conditions that rendered her disabled arose after her herniated disc had resolved to the point where she was able to return to light duty work. The WCJ simply did not believe that Claimant's disability from the minor herniated disc (which had resolved as of October 11, 1989) worsened to the point where it caused Claimant to experience peroneal palsy ten years after her original injury. And he did not believe Claimant's medical experts, whose opinions regarding the cause of Claimant's worsening condition as of 1993 and 1994 were contrary to the adverse inference he took from Claimant's failure to testify.
The WCJ was free to believe Dr. Duda's opinion that Claimant's worsening of her condition was not a result of the work-injury. Contrary to Claimant's contention, the WCJ was not required to assume that, simply because her pain continued to worsen and she developed peroneal palsy, this was a natural progression of her original injury.
This Court is satisfied that the WCJ properly resolved this issue by accepting and rejecting the opinions of medical experts and by determining credibility and weight of evidence. Vols v. Workers' Compensation Appeal Board (Buck), 664 A.2d 703 (Pa. Cmwlth. 1995). There was no error.
The Order of the Board is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 27th day of June, 2012, the Order of the Workers' Compensation Appeal Board in the above-captioned matter is hereby affirmed.
/s/_________
BERNARD L. McGINLEY, Judge