            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Abduljabbar Abdul Malik,                   :
                       Petitioner          :
                                           :
               v.                          :   No. 831 C.D. 2017
                                           :   SUBMITTED: December 22, 2017
Workers' Compensation Appeal               :
Board (Patterson-UTI Drilling              :
Company),                                  :
                  Respondent               :


BEFORE:        HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                                FILED: February 22, 2018


               Abduljabbar Abdul Malik (Claimant) petitions for review of an order
of the Workers’ Compensation Appeal Board (Board) that affirmed the decision of
a Workers’ Compensation Judge (WCJ) denying his claim petition. We affirm.
               As a floor hand worker for Patterson-UTI Drilling Company
(Employer), Claimant helped with connections, cleaned rigs, assured the safety and
tidiness of the premises, lifted weights of up to 300 pounds with the help of others,
and did other sundry tasks. (WCJ’s April 27, 2016, Decision, Finding of Fact (F.F.)
No. 4.) Pursuant to an April 2014 notice of temporary compensation payable, which
described an alleged February 14, 2014, injury as a lower back strain when a “rig
floor containment system was covered with snow[,]”1 Claimant received workers’

   1
       (Record, Item No. 16, NTCP at 1.)
compensation indemnity benefits at the rate of $883.85 per week based on a pre-
injury average weekly wage of $1,325.77. (F.F. No. 2.) In May 2014, Employer
filed (1) a notice stopping temporary compensation as of May 9, 2014, therein stating
that it would not accept liability; and (2) a notice of compensation denial, therein
alleging that Claimant did not suffer a work-related injury. (Id.) In June 2014,
Claimant filed a claim petition alleging that he sustained an unspecified work injury
on February 14, 2014, asserting full disability from February 14 to June 23, 2014,
and seeking payment for a loss of wages and medical bills. (Record, Item No. 2,
Claim Petition at 1.)2 In its answer, Employer denied the averments.
              In support of his claim petition, Claimant testified and presented the
deposition testimony of Michael Wilcenski, M.D., board-certified in pain
management.       Employer presented the deposition testimony of board-certified
orthopedic surgeon Neil Kahanovitz, M.D. The WCJ rejected the testimony of
Claimant as contradictory and found Dr. Kahanovitz to be more credible and
persuasive than Dr. Wilcenski. Accordingly, she denied the claim petition.
              On appeal to the Board, Claimant argued that the WCJ erred in
determining that he failed to establish a work injury due to a fall and in rejecting his
testimony and that of his medical expert for “misplaced or irrelevant reasons.” In
affirming the WCJ’s decision, the Board concluded that the WCJ made credibility
determinations and fully explained her reasoning and that there was substantial,
competent evidence to support her determination that Claimant failed to meet his
burden of proof. Claimant’s petition for review to this Court followed.



    2
     The document that Claimant labelled as the claim petition in the reproduced record is blank.
The claim petition in the record is complete, with indicia of processing.



                                               2
               Before this Court, Claimant raises one issue for review: “Whether the
[Board] erred in affirming the Decision/Order of the [WCJ] which denied the Claim
Petition filed by Claimant against [Employer].”3 Claimant’s Brief at 4. By way of
argument, Claimant, once again, contends that the WCJ improperly disregarded his
testimony and that of his treating physician. In addition, he asserts that, by virtue of
his undisputed testimony, he established that he fell and sustained a work injury.
Claimant’s position is without merit.
               A claimant bears the burden of establishing his right to compensation
and all of the elements necessary to support an award of benefits, including proof
that he sustained a compensable injury in the course and scope of employment and
that he is disabled as a result of that injury. Milner v. Workers’ Comp. Appeal Bd.
(Main Line Endoscopy Ctr.), 995 A.2d 492, 496 (Pa. Cmwlth. 2010). In addition,
where there is no obvious causal connection between an alleged injury and a work-
related cause, unequivocal medical testimony is necessary to establish that
connection. Cromie v. Workmen’s Comp. Appeal Bd. (Anchor Hocking), 600 A.2d
677, 679 (Pa. Cmwlth. 1991).
               Here, the WCJ concluded that Claimant failed to meet his burden of
proving a work injury, finding that “no records from any hospital, inclusive of
Mountainside Hospital, and no witnesses substantiated the occurrence of [his]


    3
       This bare-boned issue suggests a tension between two appellate rules. Pa. R.A.P. 1551
provides that, but for three instances that are not herein at issue, “[n]o question shall be heard or
considered by the court which was not raised before the government unit[.]” Pa. R.A.P. 2116(a),
in pertinent part, provides: “The statement [of questions involved] will be deemed to include every
subsidiary question fairly comprised herein. No question will be considered unless it is stated in
the statement of questions involved or is fairly suggested thereby.” Notwithstanding any
inadequacy of the asserted issue, we will proceed with our appellate review where Claimant raised
and preserved the arguments that he pursued in his brief to this Court.



                                                 3
alleged fall on February 14, 2014 and any alleged injury as a result thereof.” (F.F.
No. 8.) She also found that “Claimant’s testimony established that [he] didn’t
receive treatment between February 14, 2014 and April 2, 2014[.]” (Id., No. 9.) In
addition, she found Claimant’s testimony to be contradictory because, despite having
a history of lower back surgery when he was fifteen years old4 and having treated
with Dr. Alfred Davis in 2012 for his low back condition, Claimant told Dr.
Wilcenski that he was asymptomatic before his February 2014 fall and had not
undergone any treatment since age fifteen.
               Moreover, consistent with rejecting Claimant’s testimony, the WCJ
also rejected the opinion of Dr. Wilcenski. In so doing, the WCJ weighed the fact
that Dr. Wilcenski conducted a less comprehensive evaluation than Dr. Kahanovitz,
whom she concluded had greater expertise as a board-certified orthopedic surgeon.
(Id., No. 3.) Further, she found that, except for an April 2014 MRI report, Dr.
Wilcenski failed to obtain any records regarding Claimant’s treatment and Claimant
never told him about 2012 treatment for low back pain. (Id., Nos. 11, 18, and 19.)
She also observed that Dr. Kahanovitz reviewed the actual films from the April 2014
MRI, as opposed to simply reading the report.               In addition, she noted that Dr.
Wilcenski failed to perform a sitting root test or a Waddell’s test. (Id., No. 16.)
               In accepting and affording more weight to Dr. Kahanovitz’s testimony,
the WCJ observed that the medical findings reflected that Claimant’s issues were
degenerative and long-standing in nature and that any changes were clearly pre-
existing and present long before any work incidents two months prior. In addition,
Dr. Kahanovitz opined that the MRI findings were mainly right-sided and that

    4
      The WCJ noted Claimant’s testimony that he “had an injury to his back at age 15, has
scoliosis and a slipped disk, and had corrective surgery on an unspecified date” and that he “hurt
his upper back and neck in a car accident in 2001 or 2002.” (F.F. No. 10.)


                                                4
Claimant’s symptoms were mainly left-sided and inconsistent with the anatomic
distribution that one would expect from nerve root compression isolated to the right
S1 level. In other words, the doctor found no objective abnormality that supported
Claimant’s subjective complaints. (Id., No. 28.) In sum, Dr. Kahanovitz testified
that Claimant’s clinical presentation was inconsistent with his complaints and that
he had incorrectly denied any previous injuries to his back. Accordingly, Dr.
Kahanovitz concluded that Claimant may have sustained an aggravation or a lumbar
strain but had recovered to the point where he could return to work with light-duty
restrictions commensurate with his long-standing degenerative changes but wholly
unrelated to any alleged work injury. (Id., No. 29.)
             By way of analysis, we observe that, notwithstanding Claimant’s
position that the WCJ’s findings lack substantial evidence, his arguments reflect that
he is urging this Court to reweigh the testimony and disturb the WCJ’s credibility
determinations. Contrary to Claimant’s arguments, however, those factors are not
for this Court to weigh. It is well established that a WCJ as the ultimate fact finder
is free to accept or reject the testimony of any witness, including a medical witness,
in whole or in part. Milner, 995 A.2d at 496. Determinations of credibility and
evidentiary weight are within the WCJ’s exclusive province. Ward v. Workers’
Comp. Appeal Bd. (City of Phila.), 966 A.2d 1159, 1164 (Pa. Cmwlth. 2009).
             Moreover, it is well established that, “the fact that one party to a
proceeding may view testimony differently is not grounds for reversal if substantial
evidence supports the lower tribunal’s findings.” Second Breath v. Workers’ Comp.
Appeal Bd. (Gurski), 799 A.2d 892, 899 (Pa. Cmwlth. 2002). Although the present
case is one in which the grounds for Claimant’s appeal primarily consist of requests
to reweigh the evidence and disturb credibility determinations, we nonetheless find



                                          5
substantial evidence to support the WJC’s fact-findings.5 Viewing the evidence in a
light most favorable to Employer as the party who prevailed before the WCJ, 6
particularly the testimony of Dr. Kahanovitz, we find ample support for the WCJ’s
findings.
               Accordingly, we affirm.




                                             _____________________________________
                                             BONNIE BRIGANCE LEADBETTER,
                                             Senior Judge




    5
       Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Rife v. Workers’ Comp. Appeal Bd. (Whitetail Ski Co.), 812
A.2d 750, 754 (Pa. Cmwlth. 2002).
     6
       Waldameer Park, Inc. v. Workers’ Comp. Appeal Bd. (Morrison), 819 A.2d 164, 168 (Pa.
Cmwlth. 2003).


                                                6
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Abduljabbar Abdul Malik,               :
                       Petitioner      :
                                       :
           v.                          :   No. 831 C.D. 2017
                                       :
Workers' Compensation Appeal           :
Board (Patterson-UTI Drilling          :
Company),                              :
                  Respondent           :


                                    ORDER


           AND NOW, this 22nd day of February, 2018, the order of the Workers’
Compensation Appeal Board is hereby AFFIRMED.



                                     _____________________________________
                                     BONNIE BRIGANCE LEADBETTER,
                                     Senior Judge
