                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Anthony Custer,                               :
                            Petitioner        :
                                              :
                     v.                       :
                                              :
Workers’ Compensation Appeal                  :
Board (Somerset Welding and                   :
Steel, Inc.),                                 :   No. 1565 C.D. 2015
                       Respondent             :   Submitted: February 19, 2016


BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                       FILED: July 5, 2016

              Anthony Custer (Claimant) petitions this Court for review of the
Workers’ Compensation (WC) Appeal Board’s (Board) July 28, 2015 order affirming
the Workers’ Compensation Judge’s (WCJ) decision denying                            Claimant’s
consolidated Petition for Review of WC Benefits (Review Petition) and Petition for
Reinstatement of WC Benefits (Reinstatement Petition).                 Essentially, Claimant
presents one issue for this Court’s review: whether Claimant met his burden in
proving that the injury description in the December 9, 2011 Supplemental Agreement
is materially incorrect.1 After review, we affirm.

       1
       In his brief, Claimant framed his issue in both the Statement of Question Involved and the
Argument as:
              DID THE [BOARD] AND THE [WCJ] IN DENYING [CLAIMANT’S]
              WORKERS’ COMPENSATION [BENEFITS] BOTH COMMIT REVERSIBLE
              ERROR BY NOT ADDRESSING WHETHER OR NOT [CLAIMANT’S] HIP
              PROBLEMS WERE AT LEAST AGGRAVATED IF NOT CAUSED BY THE
              WORK-RELATED INCIDENT AND BY LIMITING THEIR CONSIDERATION
               On March 4, 2011, Claimant sustained a work injury described as a right
leg fracture and began receiving weekly WC benefits pursuant to a Notice of
Temporary Compensation Payable, which converted to a Notice of Compensation
Payable (NCP) by operation of law. By June 16, 2011 Notification of Suspension,
Somerset Welding and Steel, Inc. (Employer) notified Claimant that as of June 13,
2011, his benefits were being suspended based on his return to work at earnings equal
to or greater than his pre-injury earnings.     By December 9, 2011 Supplemental
Agreement, Claimant’s total disability benefits were reinstated effective November
28, 2011, and his injury description was revised to include a right femur fracture and
a right knee tear.
               By December 28, 2011 Notification of Suspension, Employer notified
Claimant that his benefits were being suspended as of December 23, 2011, based on
his return to work at wages equal to or greater than his pre-injury earnings. On June
6, 2012, Claimant filed the consolidated Review Petition and Reinstatement Petition.
On August 20, 2013, Employer filed a Petition to Terminate WC Benefits
(Termination Petition) which included a Request for Supersedeas based on
Claimant’s full recovery from the work injury as of August 8, 2013. The Supersedeas
request was deemed denied because no order granted it.
               By June 23, 2014 order, having concluded that Employer had failed to
meet its burden of proving Claimant’s full recovery from his work injury, the WCJ
denied Employer’s Termination Petition. The WCJ also denied Claimant’s Review
Petition because Claimant had failed to meet his burden of proving that the December
9, 2011 Supplemental Agreement’s revised work injury description is materially


               OF [CLAIMANT’S] REVIEW PETITION TO ONLY THE TWO INJURIES -
               RIGHT FEMUR FRACTURE AND RIGHT KNEE TEAR - INDICATED ON A
               SUPPLEMENTAL AGREEMENT FOR [WC BENEFITS] REACHED BETWEEN
               THE PARTIES IN THIS CASE?
Claimant Br. at 4, 18.
                                           2
incorrect. Finally, since Claimant failed to meet his burden of proving that his work
injury again caused him to lose earning power, the WCJ denied Claimant’s
Reinstatement Petition. Claimant appealed to the Board. On July 28, 2015, the
Board affirmed the WCJ’s decision. Claimant appealed to this Court.2
              Claimant argues that the Board and the WCJ erred by not addressing
whether Claimant’s hip pain resulting from a labral tear and femoracetabular
impingement was caused or at least aggravated by his work accident; thus, entitling
Claimant to WC benefits.3

              Section 413(a) of the Workers’ Compensation Act [(Act)],
              Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 771
              authorizes a WCJ to amend an NCP shown to be
              incorrect.[FN]6 It is the burden of the party seeking to correct
              [an injury description] to prove that it was materially
              incorrect when it was issued.            Unequivocal medical
              evidence is required where it is not obvious that an injury is
              causally related to the work incident. Whether medical
              evidence is equivocal is determined by reviewing the entire
              testimony of the medical witness, not just one sentence.
                 [FN]6
                         Section 413(a) [of the Act] states, in relevant
                 part:
                    A workers’ compensation judge may, at any time,
                    review and modify or set aside a [NCP] and an
                    original or supplemental agreement . . . if it be
                    proved that such [NCP] or agreement was in any
                    material respect incorrect.
                 77 P.S. § 771.



       2
         “On review[,] this Court must determine whether constitutional rights were violated, errors
of law were committed, or necessary findings of fact were supported by substantial competent
evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d 598, 601 n.6
(Pa. Cmwlth. 2014).
       3
         Notably, although not required, Claimant checked “Medical Bills Unpaid” and “Worsening
of Condition,” rather than “Incorrect Description of Injury” on his consolidated Petition.
Reproduced Record at 10a.
                                                 3
City of Pittsburgh v. Workers’ Comp. Appeal Bd. (Wilson), 11 A.3d 1071, 1075 (Pa.
Cmwlth. 2011) (citations omitted). Further,

               [t]he WCJ, as the ultimate fact-finder in [WC] cases, ‘has
               exclusive province over questions of credibility and
               evidentiary weight. . . .’ Anderson v. Workers’ Comp.
               Appeal Bd. (Penn Ctr. for Rehab), 15 A.3d 944, 949 (Pa.
               Cmwlth. 2010). The WCJ’s authority over questions of
               credibility, conflicting evidence and evidentiary weight is
               unquestioned. Minicozzi v. Workers’ Comp. Appeal Bd.
               (Indus. Metal Plating[,] Inc.), 873 A.2d 25 (Pa. Cmwlth.
               2005). The WCJ may accept or reject the testimony of any
               witness, including a medical witness, in whole or in part.
               Id. We are bound by the WCJ’s credibility determinations.
               Id.

               Moreover, ‘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.’ Id. at 29 (citation
               omitted). We examine the entire record to see if it contains
               evidence a reasonable person might find sufficient to
               support the WCJ’s findings. Id. If the record contains such
               evidence, the findings must be upheld, even though the
               record may contain conflicting evidence. Id. Additionally,
               we must view the evidence in the light most favorable to the
               prevailing party and give it the benefit of all inferences
               reasonably deduced from the evidence.

A&J Builders, Inc. v. Workers’ Comp. Appeal Bd. (Verdi), 78 A.3d 1233, 1238-39
(Pa. Cmwlth. 2013).
               Claimant’s treating physician P. James Ridella, M.D. (Dr. Ridella)
testified within a reasonable degree of medical certainty:4

               Q. [Claimant’s counsel David J. Flower] Now in your
               testimony just now, and I believe in [Employer’s expert



      4
          See Reproduced Record at 68a, Notes of Testimony June 18, 2013 at 19-20.
                                                4
             Jeffrey N. Kann, M.D.’s] [(Dr.] Kann[)5] testimony that he
             had given as a result of his review of the records and
             examination of [Claimant], he was of the opinion that the
             torn labrum really had nothing to do with the work-related
             injury where the broken femur occurred. Is that your
             opinion?
             A. [Dr. Ridella] No, it isn’t. I find it hard to believe the
             force that it takes to have a subtrochanteric fracture in a
             relatively young, hard-working man. And [the reason] I say
             that, is that he broke his labra, so his bone should have been
             pretty hard, and it was very thick. And he broke his bone at
             where it’s considered biomechanically to be the strongest
             portion of the bone in the body where, at least, it can take
             the most tensile strength by stress estimates.
             But it was a significant major injury to that femur, which
             would include the hip. So if the labral tear was there
             present before, it would have been aggravated by the
             fracture and the subsequent treatment, which included
             traction, pounding a nail into that hip, reaming it and
             stabilizing it.
             Q. Now would it be possible to be asymptomatic and have
             the torn labrum prior to the work-related --- the breaking of
             the femur?
             A. It is possible. In fact, it is possible until there is an
             injury. A torn labrum may not have any effect at all
             because it’s such a slow process of causing problems.
             It’s usually a stressful event that causes the hip symptoms to
             crop up, at least in my experience and what I’ve seen other
             people who are experts in this field talk about, that there is
             always an event, but it’s a slow[-]going process.

Reproduced Record (R.R.) at 66a, Notes of Testimony (N.T.) June 18, 2013 at 10-12.
However, Dr. Kann explained:

             Q. [Employer’s counsel Thomas P. Finn] Doctor, as far as
             this hip issue and impingement that you were talking about,

      5
         Dr. Kann performed two independent medical examinations of Claimant on March 12 and
September 17, 2012, respectively. See Reproduced Record at 51a, Notes of Testimony March 14,
2013 at 12.
                                             5
do you have an opinion as to whether or not that was related
to the work injury of March 11th?
A. [Dr. Kann] It is not.
Q. And can you explain why?
A. Sure. First of all, clinically [Claimant] does not have
femoroacetabular impingement. By MRI scan on strict
measurements on both his right and left hips they’re
symmetric meaning there’s no side-to-side difference at all.
This is a congenital --- this is just the way [Claimant] was
born. This is --- femoroacetabular impingement is not a
work-related issue.
This is an issue which again somebody is born with if, in
fact, they have it. There’s no evidence that [Claimant’s] hip
joint was altered in any way by the work event. He had a
thigh bone fracture which was appropriately treated and has
healed without any sequelae.
Q. Doctor, prior to today’s deposition, did you have the
opportunity to review an operative report of Dr. Ridella
dated February 4th, 2013 as well as some surgical photos
relative to a procedure performed by Dr. Ridella on that
date?
A. Yes, if you just give me one second, Mr. Finn.
[Claimant’s attorney David J.] Flower just gave me the
colored pictures, if you just give me a moment to look at
them.
Q. Okay.
A. All right. Yes, I’ve had the opportunity to review both
the operative report as well as the arthroscopic pictures
from the surgery performed by Dr. Ridella on 2/4 of 2013.
Q. Do those documents in any way change or alter the
opinions you offered relative to [Claimant]?
A. It does not.
Q. And can you explain why?



                             6
             A. Sure. The operation performed was a right hip
             arthroscopic surgery. He notes he did a repair of a labral
             tear and a repair of a Cam, C-A-M, lesion. That would
             suggest that [Claimant’s] ball of the ball and socket was not
             round but a little oblong, and so he tried to make it more
             round. Again - - -.
             Q. Is that something that existed prior to the work injury in
             this matter?
             A. Oh, that’s without question. It’s identical to his other
             hip.
             Q. Doctor, this surgery that Dr. Ridella performed on
             February 4th, 2013, would that be related to the work injury
             of March 4, 2011?
             A. It would not in my opinion.
             Q. And would any follow-up care as a result of that surgery
             be related to the work injury of March 4th, 2011.
             A. In my opinion it would not.
             Q. Doctor have all the opinions you’ve offered here today
             been rendered within a reasonable degree of medical
             certainty?
             A. Yes. They have.

R.R. at 57a-58a, N.T. March 14, 2013 at 34-37. Similarly, Jon A. Levy, M.D. (Dr.
Levy)6 opined:

             Q. [Employer’s counsel Thomas P. Finn] Doctor, with
             respect to this hip issue, did you have an opinion within a
             reasonable degree of medical certainty as to whether or not
             that was related to the work injury of March 4, 2011?
             A. [Dr. Levy] I do.
             Q. What is your opinion?
             A. My opinion is it is unrelated to the work event.

      6
         Dr. Levy performed an independent medical examination of Claimant on August 7, 2013.
See R.R. at 89a, N.T. December 23, 2013 at 7.
                                             7
            Q. And can you explain to the judge the basis for your
            opinion?
            A. Yes. Generally -- first of all, the mechanism of the
            injury, you know, generally, he fractured his femur from a
            fall. There potentially was some torsional injury which
            resulted in a meniscal tear, but it would be extremely
            unusual to have a joint injury at both ends of a bone and
            break the bone, because, generally, if the bone goes, then
            the ligaments and things at the other end of the bone are
            preserved or protected.
            So, the sequence of events, let’s say he had a torsional
            injury and he tore his meniscus. Then the next thing to go
            is the femur, so it’s very unlikely that the hip would go.
            But more importantly, chronologically, as I went through
            the records, there was no manifestation of complaints of a
            hip problem. Even when he was recovering from his femur
            fracture and was healed, he was seen on two separate
            occasions by Dr. Kann. On both occasions, Dr. Kann
            examined his right hip and he had a normal, painless range
            of motion of the hip, which is very different from what I
            saw on examining the patient. He also underwent a
            functional capacity evaluation, which is an unbiased,
            objective test to quantify the patient’s capabilities, and at
            that point, the patient also had a normal range of motion of
            the hip.
            So, in essence, Dr. Ridella saw this patient pretty far into
            the course. A significant amount of time had passed from
            the injury until Dr. Ridella saw him, and, ultimately, even
            undergoing surgical intervention, the clinical findings were
            degenerative in nature, as well as congenital abnormality
            with the misshapen femoral head.
            So, chronologically, there is not a correlation between the
            onset of hip pain and the injury. Biomechanically, I think it
            would be unlikely, once again, although not impossible, to
            injure both the hip, knee, and femur all simultaneously, and
            I don’t believe that the time line supports a hip injury.

R.R. at 92a-93a, N.T. December 23, 2013 at 21-23.
            “With regard to Claimant’s medical condition, [the WCJ] [found] as [a]
fact that: . . . [t]he March 4, 2011 injury did not cause the right hip labral tear

                                         8
and CAM lesion diagnosed and treated by Dr. Ridella.”             WCJ Dec. at 11-12
(emphasis added). The WCJ expounded:

             Dr. Ridella, though a treating provider, did not credibly
             address Dr. Levy’s point regarding the lack of right hip
             complaints in Claimant’s treatment records.               His
             explanation that other physicians had not looked for
             Claimant’s symptoms is not credible, given the initial
             severity of the work injury and the number of providers
             Claimant has seen since that injury. He dismissed Dr.
             Kann’s opinion that the labral tear was pre-existing, without
             addressing Dr. Kann’s explanation for his opinion (i.e., the
             fraying of the ends seen on the surgical photos). And he
             described Claimant’s complaints as consistent, without
             addressing the symptom magnification findings made by
             Dr. Levy, Dr. Kann and Dr. Antin.[7]
Id. at 12. The Board concluded:
             It is apparent the WCJ evaluated the substantial, competent
             evidence of record, made the requisite credibility
             determinations, and properly reached a well-explained, and
             well-reasoned, conclusion that Claimant did not meet his
             burden on the Petitions he filed. Thus, we see no reason to
             disturb the outcome in this matter.

Board Dec. at 10. After a thorough review of the record, this Court discerns no error
in the Board’s reasoning.     Accordingly, because both the WCJ and the Board
expressly addressed whether Claimant’s hip pain resulting from a labral tear and
femoracetabular impingement was caused by the work-related accident, the WCJ
properly denied Claimant’s Review and Reinstatement Petitions, and the Board
correctly upheld the WCJ’s decision.
             For all of the above reasons, the Board’s order is affirmed.


                                       ___________________________
                                       ANNE E. COVEY, Judge

      7
        Dr. Antin performed an arthroscopic procedure on Claimant’s knee on November 28,
2011. See R.R. at 24a, N.T. July 31, 2012 at 16.
                                           9
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Anthony Custer,                         :
                         Petitioner     :
                                        :
                  v.                    :
                                        :
Workers’ Compensation Appeal            :
Board (Somerset Welding and             :
Steel, Inc.),                           :   No. 1565 C.D. 2015
                       Respondent       :

                                      ORDER

            AND NOW, this 5th day of July, 2016, the Workers’ Compensation
Appeal Board’s July 28, 2015 order is affirmed.


                                      ___________________________
                                      ANNE E. COVEY, Judge
