          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michelle Rovenolt,                       :
                                         : No. 1351 C.D. 2016
                         Petitioner      : Submitted: November 18, 2016
                                         :
                   v.                    :
                                         :
Workers' Compensation Appeal             :
Board (Reliant Senior Care               :
Holdings, Inc. and HM Casualty           :
Insurance Company),                      :
                                         :
                         Respondents     :


BEFORE:     HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                           FILED: March 2, 2017

            Michelle Rovenolt (Claimant) petitions for review of the July 7, 2016
order of the Workers’ Compensation Appeal Board (Board), which affirmed the
order of a workers’ compensation judge (WCJ) denying her claim petition. We
affirm.
            Claimant filed a claim petition alleging that she suffered a work injury
on August 6, 2013, during the course of her employment as a licensed practical
nurse (LPN) with Reliant Senior Care Holdings, Inc. (Employer). Employer filed a
timely answer denying those allegations and asserting, alternatively, that the claim
was barred by Claimant’s violation of a positive work order.
             Claimant testified by way of a February 2014 telephone deposition
and again at a May 5, 2014 hearing before the WCJ. With respect to the work
injury, Claimant stated that she was working in a lockdown unit on August 6,
2013, passing out medications, when she noticed a resident leave the activity room
without an escort. She said she was redirecting the resident back to the room when
he grabbed her left arm and threw her across the floor and into the wall, injuring
her left shoulder and the left side of her neck and upper back. Claimant testified
that she did not go to the emergency room, but filled out an incident report and saw
Dr. Hynick, a panel physician, the next day. He restricted Claimant to light duty
work, which she said involved a change in her duties as well as a significant
reduction in days and hours she worked each week. Claimant worked light duty
until Friday, August 30, 2013, when Dr. Hynick released her to return to her pre-
injury position without restrictions.
             According to Claimant, although she had been released to full duty,
she started having problems with her shoulder. Claimant stated, for example, that
she left the medication cart stationary because maneuvering it hurt her shoulder,
and she asked aides to help her wrap patients’ feet. Claimant explained that she
did not complain of pain or report to her supervisor that she was self-modifying her
duties because she was afraid of losing her job.
             Claimant said that she was discharged following an incident with a
coworker, which occurred after she asked the coworker to speak to a resident about
her medication schedule and he refused. Employer suspended Claimant pending
an investigation and then terminated her employment. Claimant testified that she
subsequently worked as an LPN for about six weeks for a staffing agency, but was




                                         2
only able to work a few days each week because of her shoulder pain. Reproduced
Record (R.R.) at 120a-29a, 145a.
              Claimant, who relocated to Tennessee, stated that she continues to
treat with John A. Kline, M.D., for pain in her left shoulder.1 She said she has a
high tolerance for pain and takes no pain medicine, but she takes Celebrex and
muscle relaxers as prescribed by Dr. Kline. Claimant stated that she has not seen
any other doctor for her shoulder injury and that she sees Dr. Kline about twice a
year. R.R. at 58a-63a.
              Claimant testified that because she was not able to work, she lost her
house and credit cards, and in November of 2013, she and her family moved to live
with her mother in Tennessee. Claimant said she believes she is able to pass out
pills, but the Department of Health requires that medications be delivered on a cart
and she is not able to maneuver a cart up and down a hallway. R.R. at 64a-66a.
              Claimant also presented the June 9, 2014 deposition testimony of Dr.
Kline, who is board certified in physical medicine and rehabilitation, pain
management, and disability impairment.               Dr. Kline first saw Claimant on
December 6, 2013, on referral of her counsel. Based on the history Claimant
provided, a review of her medical records, and his physical examination, Dr. Kline
diagnosed Claimant with left shoulder impingement syndrome with cervical and
upper trapezius sprain/strain, and he restricted Claimant to light duty work. Dr.
Kline testified that he saw Claimant again on April 11, 2014, and June 4, 2014. He
stated that her condition was unchanged and he has not released Claimant to her
pre-injury job. R.R. at 18a-23a.

       1
         Claimant testified that she stopped treating with Dr. Hynick in October 2013 because he
said there was nothing further he could do for her.


                                               3
              Zachary Schnee, who works for Employer as a night shift supervisor,
testified that Claimant worked in a light duty capacity for a while after a work
incident in early August 2013, and she was working full duty on the night of
August 31, 2013. He stated that Claimant’s coworker reported a disagreement
with Claimant, and he brought both employees to his office to discuss the matter.
Schnee described the coworker as soft spoken and said that Claimant was very
loud. Schnee said that after the incident he “wrote Claimant up” for creating a
hostile work environment and recommended that she be fired.
              The WCJ found Claimant and Schnee to be credible with respect to
the circumstances surrounding Claimant’s discharge from her employment, noting
that there was no significant variance in their accounts. The WCJ further found
that the evidence did not establish that Claimant was fired for cause.
              Although the WCJ found that Claimant was not discharged for cause,
he determined that the primary issue was whether Claimant was performing her
regular duty work when her employment was terminated. The WCJ rejected Dr.
Kline’s opinion that Claimant was only capable of light duty work, noting that he
first saw Claimant months after her discharge from employment, on referral from
her attorney. Additionally, the WCJ noted that even if Dr. Kline’s limitations were
accepted, the record did not establish that Claimant’s normal work duties exceeded
those restrictions. Notwithstanding Claimant’s testimony to the contrary, the WCJ
further found that Claimant was performing her pre-injury job when she was
discharged.     Based on these findings, and citing Donahay v. Workers’
Compensation Appeal Board (Skills of Central PA, Inc.), 109 A.3d 787 (Pa.
Cmwlth. 2015), the WCJ concluded that Claimant did not meet her burden to prove




                                          4
that her loss of earnings was caused by her work injury and denied her claim
petition.2
               Claimant appealed to the Board, arguing that the WCJ erred in
concluding that she was ineligible for benefits after finding that she was not
terminated for cause and crediting Dr. Kline’s testimony that she was incapable of
performing her pre-injury job. The Board affirmed, citing the WCJ’s finding that
Claimant was performing her regular duties when she was discharged and the
WCJ’s rejection of Dr. Kline’s testimony as not credible.
               On appeal to this Court,3 Claimant argues that the WCJ erred in
finding that Claimant was performing her pre-injury job duties when her
employment terminated. In support, Claimant cites her unchallenged testimony
that she was self-modifying her job duties and “the credible and unrefuted
testimony from Dr. Kline” that Claimant was incapable of performing her regular
duties without restrictions. Claimant’s brief at 16.
               In an original claim petition, a claimant bears the burden of proving
all of the elements necessary to support an award of benefits, including the burden


       2
         In Donahay, we held that benefits were properly suspended where the claimant returned
to her pre-injury position with restrictions that did not preclude her from performing her regular
work duties. We explained that under workers’ compensation law, the term “disability” is
synonymous with loss of earning power; if a claimant’s reduction in earnings is not tied to a loss
of earning power attributable to the work injury, no disability benefits are due. Id. at 793 (citing
Landmark Constructors, Inc. v. Workers’ Compensation Appeal Board (Costello), 747 A.2d 850,
854 (Pa. 2000), and Harle v. Workmen’s Compensation Appeal Board (Telegraph Press, Inc.)
658 A.2d 766, 769 (Pa. 1995)).

       3
         Our scope of review is limited to determining whether an error of law was committed,
whether constitutional rights were violated, or whether necessary findings of fact are supported
by substantial evidence. City of Philadelphia v. Workers’ Compensation Appeal Board (Brown),
830 A.2d 649, 653 n.2 (Pa. Cmwlth. 2003).


                                                 5
to establish the duration and extent of disability.          Second Breath v. Workers’
Compensation Appeal Board (Gurski), 799 A.2d 892, 899 (Pa. Cmwlth. 2002).
Unfortunately, the evidence upon which Claimant relies to meet her burden was
rejected by the WCJ.
              It is a fundamental tenet of workers’ compensation law that the WCJ
has complete authority over questions of credibility, conflicting medical evidence,
and evidentiary weight.        Sherrod v Workmen’s Compensation Appeal Board
(Thoroughgood, Inc.), 666 A.2d 383, 385 (Pa. Cmwlth. 1995). The WCJ is free to
accept or reject, in whole or in part, the testimony of any witness. Lombardo v.
Workers’ Compensation Appeal Board (Topps Company, Inc.), 698 A.2d 1378,
1381 (Pa. Cmwlth. 1997). As the ultimate fact-finder, the WCJ’s findings are
binding on appeal if supported by substantial evidence.               Agresta v. Workers’
Compensation Appeal Board (Borough of Mechanicsburg), 850 A.2d 890, 893 (Pa.
Cmwlth. 2004).4
              Claimant acknowledges the WCJ’s prerogative to determine witness
credibility, but she contends that the WCJ capriciously disregarded her testimony
and the “credible and un-refuted” testimony of Dr. Kline. We note that “review for
capricious disregard of material, competent evidence is an appropriate component
of appellate consideration in every case in which such question is properly brought
before the court.” Leon E. Wintermyer, Inc. v. Workers’ Compensation Appeal
Board (Marlowe), 812 A.2d 478, 487 (Pa. 2002).




       4
        “Substantial evidence is such evidence that a reasonable mind might accept as adequate
to support a conclusion.” Mrs. Smith’s Frozen Foods Co. v. Workmen’s Compensation Appeal
Board (Clouser), 539 A.2d 11, 14 (Pa. Cmwlth. 1988).


                                              6
             Capricious disregard is a type of legal error. Wintermyer, 812 A.2d at
487. It is defined as a “deliberate disregard of competent testimony and relevant
evidence which one of ordinary intelligence could not possibly have avoided in
reaching a result.”    Ward v. Workers’ Compensation Appeal Board (City of
Philadelphia) 966 A.2d 1159, 1164 (Pa. Cmwlth. 2009) (quoting Arena v.
Packaging Systems Corp., 507 A.2d 18, 20 (Pa. 1986)).
             Claimant appears to misapprehend this concept as circumscribing the
WCJ’s fact-finding authority. However, the law “remains well settled that the
WCJ is the ultimate finder of fact and has exclusive province over questions of
credibility and evidentiary weight. In making such determinations, the WCJ is at
liberty to accept or reject the testimony of any witness, including a medical
witness, in whole or in part. Moreover, a referee is not required to accept even
uncontradicted testimony as true.” Newcomer Products v. Workers’ Compensation
Appeal Board (Irvin), 826 A.2d 69 (Pa. Cmwlth. 2003) (citations omitted).
             In Capasso v. Workers’ Compensation Appeal Board (RACS
Associates), 851 A.2d 997 (Pa. Cmwlth. 2004), the claimant likewise asserted that
the WCJ capriciously disregarded his testimony and that of his doctor. Rejecting
that argument, we explained that “the WCJ did not ignore any of the evidence
presented by [the claimant]. Rather, he chose not to believe it, and he explained
his decision.” Id. at 1002.
             In this case, contrary to Claimant’s characterization of the record, the
WCJ found Dr. Kline’s testimony not credible and explained his rationale for
rejecting Dr. Kline’s testimony. Additionally, the WCJ fully recounted Claimant’s
testimony that she modified her job duties, noting that it was not supported by
other credible evidence. WCJ’s Findings of Fact, Nos. 10-11. Consequently, the


                                         7
WCJ’s findings do not reflect a willful and deliberate disregard of evidence, but
rather, the proper exercise of his discretionary decision-making authority.
             Accordingly, we affirm.




                                       MICHAEL H. WOJCIK, Judge




Judge Brobson concurs in the result only.




                                         8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michelle Rovenolt,                      :
                                        : No. 1351 C.D. 2016
                        Petitioner      :
                                        :
                  v.                    :
                                        :
Workers' Compensation Appeal            :
Board (Reliant Senior Care              :
Holdings, Inc. and HM Casualty          :
Insurance Company),                     :
                                        :
                        Respondents     :


                                     ORDER


            AND NOW, this 2nd day of March, 2017, the order of the Workers’
Compensation Appeal Board, dated July 7, 2016, is affirmed.




                                      __________________________________
                                      MICHAEL H. WOJCIK, Judge
