                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kurt Serafini,                          :
                    Petitioner          :
                                        :   No. 4 C.D. 2016
             v.                         :
                                        :   Submitted: May 20, 2016
Workers’ Compensation Appeal            :
Board (Keystone Community               :
Resources),                             :
                 Respondent             :


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                      FILED: September 7, 2016


             Kurt Serafini (Claimant) petitions for review of the December 8, 2015,
order of the Workers’ Compensation Appeal Board (Board) affirming a Workers’
Compensation Judge’s (WCJ) decision to deny Claimant’s reinstatement petition.


                            Facts and Procedural History
             On May 11, 2009, Claimant sustained injuries during a client interaction
for Keystone Community Resources, Inc. (Employer), which provides community-
living homes for individuals with developmental and intellectual disabilities.
Employer issued a notice of compensation payable, acknowledging liability for
injuries to Claimant’s neck, face, shoulder, and back. Claimant returned to work on
May 26, 2009, but continued to receive medical treatment for his work injuries,
including prescription medications, physical therapy, chiropractic treatment, and
injections. Thereafter, Claimant filed a claim for continued injuries arising from his
work injury. During the pendency of his claim petition, Claimant filed a utilization
review petition seeking payment from Employer for chiropractic treatment he
received. Employer also filed a petition to terminate Claimant’s benefits. By order
dated February 15, 2012, a WCJ granted Claimant’s claim petition but immediately
suspended benefits because he returned to work on May 26, 2009, at no loss of
earnings.1 (WCJ’s Findings of Fact Nos. 2, 4-5.)
               On November 19, 2012, Claimant filed a second claim petition2 alleging
that his injuries had worsened, rendering him totally disabled and unable to perform
his job duties as of October 10, 2012.3 Employer filed an answer denying the
material allegations and the WCJ conducted a series of hearings. (WCJ’s Finding of
Fact No. 3.)
               Lori Staples, Employer’s program director, testified that she is
responsible for overseeing a number of Employer’s group homes. Specifically, she
stated that she oversees the homes where Claimant worked; Pittston One Home and
Prospect Home. She also testified that she is familiar with Claimant and his work
injuries and has observed him in his work setting, although she conceded she does not
observe him every day for his full shift. Staples explained that, during the period


       1
         Additionally, the WCJ denied Employer’s petition to terminate benefits and granted
Claimant’s utilization review petition. (WCJ’s Findings of Fact No. 2.)

       2
         The petition was originally filed as a claim petition. However, because Employer had
already accepted Claimant’s injuries as work related, the WCJ treated it as a reinstatement petition.

       3
        Claimant also filed a second utilization review determination and a penalty petition, which
the WCJ granted and are not at issue in this appeal.



                                                 2
between June 2012 and October 2012, Claimant worked at the Pittston One Home
and was responsible for overseeing two residents who lived there.          She further
explained that the residents from the Pittston One Home were very high functioning
and, consequently, Claimant was not required to do much lifting because the residents
took out the garbage, vacuumed and swept the floors, and did their own laundry.
Regarding Claimant’s job requirements, Staples clarified that Claimant was not
required to carry fifty pounds for twenty feet, not required to climb stairs carrying at
least twenty pounds, nor was he required to run a distance of one-hundred feet up to
two times per hour. She noted that the two residents at the Pittston One Home
required one-to-one supervision and Claimant was responsible for providing the
same; however, she explained that this could be performed via verbal directives from
a seated position and did not require any physical work. (R.R. at 108-11, 119-22.)
             Staples further testified that Claimant accepted a position at the Prospect
Home and was required to complete paperwork, generate schedules, and oversee the
residence in addition to his duties at the Pittston One Home. She explained that she
believed the position at the Prospect Home was within Claimant’s physical
capabilities, including the medical restrictions from his work injury, because he was
performing the same duties he performed at the Pittston One Home with the
exception of providing direct care to clients. Staples stated that she was unaware of
any aggressive outbursts within the past year, including any directed at Claimant,
from the resident in the Prospect Home. She acknowledged that the resident had a
history of explosive behavior and elopement that staff must be aware of and prepared
to manage; however, she clarified that another person was the resident’s individual
direct-care professional, not Claimant. She noted that Employer modified Claimant’s
position at the Prospect Home and eliminated his duty to accompany and supervise



                                           3
residents that went to dinner at local restaurants because he was concerned he could
not sufficiently perform his duties. According to Staples, after the job modification,
Claimant’s duties consisted of basically paperwork. (R.R. at 111-18, 124-25, 127.)
             Rebecca Hokien, Employer’s senior director of human resources,
testified that she is familiar with Claimant, his injuries, and his duties at the Prospect
Home. She confirmed that Claimant had contacted her regarding concerns with his
new assignment at the Prospect Home; specifically, Claimant was concerned that
some client services may be inconsistent with his physical limitations.           Hokien
testified that, based on Claimant’s concerns, his duties were modified to change his
interactions with the client in question. According to Hokien, after the modification,
Claimant’s duties consisted of administrative work and were within his physical
capabilities. She confirmed that modified-duty work was available to Claimant after
October 10, 2012. (R.R. at 129-34.)
             Employer also presented surveillance evidence of Claimant.              The
surveillance depicted Claimant spraying a pick-up truck with a hose he held in his
right hand as well as reaching overhead to spray the roof of the truck. The video also
showed Claimant walking his dog while holding the leash in his right hand, riding an
all-terrain vehicle (ATV), and holding and maneuvering a leaf blower in his right
hand. The surveillance occurred over a three-day period and at no time did Claimant
exhibit restricted movement of his neck or right arm. (WCJ’s Finding of Fact No.
12.)
             Additionally, Employer submitted the deposition testimony of Dr. John
Nolan, a board certified physician in orthopedic surgery and orthopedic sports
medicine, who testified that he performed two independent medical examinations of




                                            4
Claimant on May 18, 2011,4 and February 27, 2013. Dr. Nolan stated that Claimant
sustained his injuries as a result of an assault by a twenty-year old male at his place of
employment. Dr. Nolan further testified that, when he saw Claimant on February 27,
2013, he had received multiple cervical, thoracic, and lumbar injections and had an
EMG conduction study performed that was normal.                       He stated that Claimant
complained of headaches, fatigue, hallucinations, and difficulty sitting down for long
periods of time; however, he denied any numbness or tingling. (R.R. at 315, 320-31,
324-26.)
               Dr. Nolan performed a physical examination of Claimant and reviewed
his medical records; notably, he reviewed Claimant’s MRI reports and observed
degenerative changes that he did not attribute to Claimant’s work injury. He opined
that Claimant’s condition was related to “wear and tear” and, over time, that wear and
tear could produce neck pain, arm pain, or leg pain. Dr. Nolan agreed that Claimant’s
work injury consisted of multiple contusions to his neck, head, back, and right
shoulder as well as a cervical strain. But, according to Dr. Nolan, Claimant had fully
recovered from his work injuries, reached the maximum benefit of any kind of
medical treatment, and did not need ongoing treatment. (R.R. at 325-36.)
               Claimant testified that he remained symptomatic after he returned to
work and his condition continued to worsen. He stated that, after he returned to
work, Employer increased his job duties by assigning him to the Prospect Home
where residents required one-on-one care. Claimant further testified that, after he
returned to work, he experienced radiating pain down the right side of his neck,
through his right shoulder, and into his right arm. He stated that he experienced
increasing headaches and was unable to perform his work duties. Claimant noted that

      4
          Dr. Nolan testified for Employer during Claimant’s original claim petition proceedings.



                                                  5
he stopped working as of October 10, 2012, and has not worked in any capacity since.
(WCJ’s Finding of Fact No. 7.)
               According to Claimant, at the Pittston One Home, his responsibilities
consisted of scheduling, budgeting, planning, recreational leisure, and accompanying
the residents during community-based activities. He explained that his work had
become more difficult because of the symptoms he was experiencing and stated that
the resident at the Prospect Home did exhibit aggressive tendencies; specifically,
Claimant stated that he observed the resident almost remove his bedroom door from
its hinges. (R.R. at 150-53.)
               In response to the surveillance evidence, Claimant testified that he walks
his dog twice a day for three blocks and usually experiences neck and back spasms
after the walks. However, he noted that, prior to his work injury, he would walk at
least three miles a day and run three miles two to three times a week. Claimant
confirmed that he owns an ATV and uses it to clean up after his dog. He also
confirmed that he hosed off his truck for approximately five minutes. (R.R. at 154-
56.)
               Claimant submitted the deposition testimony of Dr. Sheryl Oleski, a
board certified physician specializing in physical medicine and rehabilitation, who
testified that she had previously provided care to Claimant, referred him to a
physician in Philadelphia to pursue additional treatment options, and reevaluated him
on April 9, 2012, prior to continuing physical therapy.5 According to Dr. Oleski,
Claimant complained of pain in the right side of his neck, his shoulder, and the
middle of his back that existed at all times and limited his ability to sit, stand, and

       5
         Dr. Oleski also testified for Claimant during his original claim petition proceedings. (R.R.
at 173-234.)



                                                 6
walk. Dr. Oleski stated that, at the time of his visit, Claimant was on leave from
work because he was experiencing anxiety and chronic pain that was limiting his
ability to perform his work duties. (R.R. at 250-54.)
             She testified that she performed a physical examination and observed
that Claimant had some limited cervical range of motion in his right shoulder and
muscle spasms in his cervical and thoracic paraspinals as well as his parascapular
muscles. Dr. Oleski confirmed that Claimant’s shoulder problems would limit his
ability to restrain a client or move equipment and recommended that he continue his
physical therapy and chiropractic care, but she noted that he had 5/5 strength. She
also discussed the possibility of an X-ray or MRI of Claimant’s shoulder to determine
whether his history of calcific tendinitis was getting worse; however, she
acknowledged that the calcific tendinitis was likely unrelated to his work injuries.
(R.R. at 256-57, 289-90, 293.)
             Dr. Oleski next saw Claimant in August 2012 and stated that he had
returned to work, which she did not consider unusual. However, she testified that his
complaints of physical pain had worsened; specifically, Claimant was experiencing
more thoracic pain, numbness and tingling in his right arm, as well as weakness in the
right arm. Additionally, Dr. Oleski testified that Claimant complained of a resident at
work with behavioral problems and expressed concern about the patient potentially
injuring him. She stated that she performed another physical evaluation and observed
that:   Claimant’s cervical range of motion was still slightly limited; he had no
evidence of irritation with shoulder range of motion but still had mildly positive
impingement on the right side; he had 5/5 strength and 2+ reflexes; but, he did have a
positive Spurling’s maneuver to the right, as well as muscle spasms in the cervical
and thoracic region. Dr. Oleski explained that she restricted Claimant from lifting



                                          7
more than forty pounds, as well as bending, reaching, and climbing. She suggested
that he not work around combative clients that would place him at increased risk of
injury, recommended that updated MRIs of the cervical and thoracic spine area be
performed, and referred him to a neurosurgeon in Philadelphia. (R.R. at 258-61,
295.)
            Dr. Oleski further testified that she compared the updated MRIs to prior
tests and observed that:    Claimant’s cervical spine showed evidence of diffuse
degenerative change; a stable disc herniation at C5-6; a decrease in size of the right
C6-7 disc herniation; stable narrowing of the cervical thecal sac at C4-5; and stable
disc bulging at C3-4. She confirmed that she had previously opined that the disc
herniations at C5-6 and C6-7 were a result of his May 11, 2009 work accident.
However, she observed that the disc herniation at C5-6 remained the same whereas
the disc herniation at C6-7 was smaller. Dr. Oleski testified that she saw Claimant
again on October 12, 2012, and that he reported increased symptomology.
Specifically, Claimant complained of increased burning pain in his right neck and
shoulder, weakness in his arm, and frequent headaches, which Dr. Oleski stated were
consistent with the updated MRIs. She also performed a physical examination and
noted that everything was essentially unchanged except for some weakness in the
triceps, positive upper nerve tension on the right, and another positive Spurling’s
maneuver that caused pain to his right side. Dr. Oleski stated that she reviewed
Claimant’s specific work duties and did not believe he was capable of performing
those duties because of the weakness in his arm and because he was being prescribed
pain medication that made him feel drowsy and groggy. At that point, Dr. Oleski
referred Claimant to another neurosurgeon, Dr. Harrop. (R.R. at 262-69.)




                                          8
            Dr. Oleski testified that she saw Claimant again on November 1, 2012,
and he advised her that he was tolerating the pain better since he was out of work but
he was unable to drive and could not do as many activities because of the pain
medication. She stated that Dr. Harrop had met with Claimant and that she had
reviewed his notes recommending that an EMG be performed to identify and localize
Claimant’s pain generator; but, Dr. Harrop noted that there was no evidence of cord
compression and his diagnostic studies indicated further progressive degenerative
disc disease. Dr. Oleski further stated that she again met with Claimant on January
25, 2013, and that no significant change had occurred at that time although his
cervical range of motion had slightly improved; however, she noted that she still kept
him out of work pending further evaluation by the surgeon. She opined that, as of
January 25, 2013, Claimant was still suffering from his May 11, 2009 work injuries
and was incapable of working as a result of the same. (R.R. at 268-74, 291-92, 297.)
            By order dated September 18, 2014, the WCJ determined that Claimant
failed to meet his burden of proof and denied his reinstatement petition because,
although not fully recovered from his work injuries, he was capable of performing his
modified job duties. The WCJ specifically found, in relevant part:

            20. This Judge has had the opportunity to view Claimant’s
            demeanor throughout these proceedings and especially
            during his testimony. Claimant’s testimony is accepted as
            credible and persuasive, in part. Although Claimant’s
            testimony has been deemed credible and persuasive and
            accepted as fact in prior proceedings, this Judge is troubled
            with Claimant’s actions captured on the surveillance.
            While this Judge accepts Claimant’s testimony that he
            continues to suffer from residual symptoms arising out of
            the work injury, Claimant’s actions as captured on
            surveillance are inconsistent with the physical limitations he
            describes. Based upon the same, together with a review of
            the record as a whole, Claimant[’s] testimony that he is


                                          9
              incapable of performing the modified job duties of the
              position at the Prospect group home is rejected. In arriving
              at this determination, the testimony of Ms. Staples and that
              of Ms. Hokien concerning the modifications to Claimant’s
              job duties and that the position remained available to
              Claimant at no loss in earnings is accepted as credible and
              persuasive.

              21. To the extent Dr. Nolan found Claimant to be fully
              recovered from the work injury, his testimony is rejected.
              The testimony of Claimant’s treating physician that
              Claimant has not fully recovered from the work injury,
              together with Claimant’s credible testimony that he
              continues to remain symptomatic, is accepted as more
              persuasive.
(WCJ’s Findings of Fact Nos. 20-21.)
              Claimant appealed the WCJ’s decision to the Board, which affirmed the
WCJ. Thereafter, Claimant appealed to this Court.
              On appeal,6 Claimant argues that the Board erred in affirming the WCJ’s
decision because the WCJ’s credibility determinations conflicted with his prior
credibility determinations. According to Claimant, the WCJ credited Employer’s
expert’s testimony when he rejected similar testimony during the litigation of
Claimant’s original claim petition. Claimant also argues that the WCJ’s decision was
erroneous because it was contrary to the evidence of record. Specifically, Claimant
argues that the WCJ improperly considered the surveillance evidence and relied too
heavily on that evidence in the context of Claimant’s job duties.



       6
         Our scope of review is limited to determining whether findings of fact are supported by
substantial evidence, whether an error of law has been committed, or whether constitutional rights
have been violated. Meadow Lakes Apartments v. Workers’ Compensation Appeal Board
(Spencer), 894 A.2d 214, 216 n.3 (Pa. Cmwlth. 2006).




                                               10
                                           Discussion
               Section 413 of the Workers’ Compensation Act (Act)7 provides that:

               A [WCJ] . . . may . . . reinstate . . . a notice of compensation
               payable . . . or an award of the department or its workers’
               compensation judge, upon petition filed by either party with
               the department, upon proof that the disability of an injured
               employe has increased, decreased, recurred, or has
               temporarily or finally ceased . . . .”
77 P.S. §772.
               A claimant’s “disability” is synonymous with a “loss of earning power.”
Birriel v. Workmen’s Compensation Appeal Board, 435 A.2d 292, 293 (Pa. Cmwlth.
1981). A claimant seeking reinstatement of benefits “must prove that his or her
earning power is once again adversely affected by his or her disability, and that such
disability is a continuation of that which arose from his or her original claim.”
Bufford v. Workers’ Compensation Appeal Board (North American Telecom), 2 A.3d
548, 558 (Pa. 2010).
               In a workers’ compensation proceeding, the WCJ is the ultimate fact
finder and is the sole authority for determining the weight and credibility of evidence.
Lombardo v. Workers’ Compensation Appeal Board (Topps Company, Inc.), 698
A.2d 1378, 1381 (Pa. Cmwlth. 1997). “As such, the WCJ is free to accept or reject
the testimony of any witness, including medical witnesses, in whole or in part.” Id.
The WCJ’s findings will not be disturbed when they are supported by substantial,
competent evidence.         Greenwich Collieries v. Workmen’s Compensation Appeal
Board (Buck), 664 A.2d 703, 706 (Pa. Cmwlth. 1995). “Substantial evidence is such
relevant evidence which a reasonable mind might accept as adequate to support a


      7
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §772.



                                                11
finding.”   Berardelli v. Workmen’s Compensation Appeal Board (Bureau of
Personnel State Workmen’s Insurance Fund), 578 A.2d 1016, 1018 (Pa. Cmwlth.
1990). Where both parties present evidence, it is irrelevant that the record contains
evidence which supports a finding contrary to that made by the WCJ; rather, the
pertinent inquiry is whether evidence exists that supports the WCJ’s finding.
Hoffmaster v. Workers’ Compensation Appeal Board (Senco Products, Inc.), 721
A.2d 1152, 1155 (Pa. Cmwlth. 1998).


                   The WCJ’s Prior Credibility Determination
             Claimant first argues that the Board erred in affirming the WCJ’s
decision because the WCJ credited testimony that he previously rejected.        This
argument is unpersuasive. Claimant specifically avers that the WCJ credited Dr.
Nolan’s testimony that Claimant had recovered from his work injury and, thus, was
inconsistent with his prior credibility determination rejecting the same during
Claimant’s original claim petition litigation. However, Claimant mischaracterizes the
WCJ’s findings. In the present matter, the WCJ specifically found “[t]o the extent
Dr. Nolan found Claimant to be fully recovered from the work injury, his testimony is
rejected.” (WCJ’s Finding of Fact No. 21) (emphasis added). Therefore, there is no
inconsistency in the WCJ’s determinations; he rejected Dr. Nolan’s testimony that
Claimant had fully recovered from his work injuries in both proceedings.
Nevertheless, because the WCJ determined that Claimant failed to meet his burden to
prove that his earning power was adversely affected, he denied the reinstatement
petition.   Accordingly, this Court discerns no error in the WCJ’s credibility
determination.




                                         12
                           Weight of Surveillance Evidence
            Next, Claimant alleges that the WCJ improperly relied on surveillance
evidence and disregarded competent record evidence indicating that he could not
perform his work duties.
            As articulated above, the weight and credibility of evidence is the sole
province of the WCJ, the WCJ’s findings will not be disturbed when they are
supported by substantial evidence, and it is irrelevant whether the record contains
evidence supporting findings contrary to those made by the WCJ. Here, the WCJ
“review[ed] the record as a whole,” rejected Claimant’s testimony that he was
incapable of performing the modified job duties, and concluded that Claimant failed
to meet his burden to establish that his earning power had been adversely affected
notwithstanding that he still suffered from residual symptoms from the work injury.
(WCJ’s Finding of Fact No. 20.) The WCJ also credited Employer’s witnesses’
testimony regarding Claimant’s modified job duties, his wages, and the availability of
the position. Id. Therefore, the record contains substantial evidence to support the
WCJ’s decision and, accordingly, those findings are conclusive on appeal.         See
Sloane Nissan v. Workers’ Compensation Appeal Board (Zeyl), 820 A.2d 925, 927
(Pa. Cmwlth. 2003) (“So long as the findings of fact of the WCJ are supported by
substantial evidence, they must be accepted as conclusive on appeal.”).         Thus,
Claimant’s argument that the WCJ improperly relied on surveillance evidence and
disregarded other record evidence must fail.


                                     Conclusion
            Claimant’s argument that the WCJ’s credibility determinations were
inconsistent and, therefore, improper is without merit because the WCJ rejected Dr.



                                         13
Nolan’s testimony that Claimant had fully recovered from his work injuries in both
proceedings. Moreover, Claimant’s argument that the WCJ erred in evaluating the
weight of record evidence must fail because the WCJ’s findings are supported by
substantial evidence and, consequently, are binding on appeal.
            Accordingly, the Board’s order is affirmed.



                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge




                                         14
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kurt Serafini,                        :
                  Petitioner          :
                                      :    No. 4 C.D. 2016
             v.                       :
                                      :
Workers’ Compensation Appeal          :
Board (Keystone Community             :
Resources),                           :
                 Respondent           :


                                   ORDER


             AND NOW, this 7th day of September, 2016, the December 8, 2015,
order of the Workers’ Compensation Appeal Board is affirmed.




                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge
