           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Samuel Betancourt,                               :
                                                 :
                        Petitioner               :
                                                 :
                 v.                              : No. 2030 C.D. 2015
                                                 : Submitted: August 12, 2016
Workers’ Compensation Appeal                     :
Board (Exel, Inc., New Hampshire                 :
Insurance Company and                            :
Sedgwick CMS),                                   :
                                                 :
                        Respondents              :


BEFORE:          HONORABLE MARY HANNAH LEAVITT, President Judge
                 HONORABLE MICHAEL H. WOJCIK, Judge
                 HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                            FILED: September 8, 2016

                 Samuel Betancourt (Claimant) petitions for review of the September
24, 2015 order of the Workers’ Compensation Appeal Board (Board) that affirmed
the July 10, 2014 decision and order of the Workers’ Compensation Judge (WCJ),
which, pursuant to the Workers’ Compensation Act1 (Act), granted the
Termination Petition filed by Exel, Inc. (Employer), based on the conclusion that
Claimant had fully recovered from a low back strain and sprain work-related




1
    Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
injury.2 Claimant argues before this Court that the Board erred in affirming the
WCJ’s decision because the WCJ erroneously relied on the testimony of Dr.
Stanley R. Askin, M.D., to grant Employer’s Termination Petition.                  Claimant
contends that Dr. Askin’s testimony is insufficient as a matter of law to support the
WCJ’s finding that Claimant has fully recovered from his work-related injury
because Dr. Askin did not acknowledge in his testimony the work-related injury
accepted by Employer in its Notice of Compensation Payable (NCP). For the
following reasons, we affirm the Board.3
              Claimant suffered a work-related injury on July 17, 2012, when he
was packing a shelving unit. (WCJ Decision, Findings of Fact (F.F.) ¶¶1-2.)
Employer issued a medical-only NCP accepting Claimant’s injury as a strain
and/or sprain of his lower back. (Id. F.F. ¶2; July 31, 2012, NCP.) On May 10,
2013, Employer filed a Termination Petition alleging that as of April 16, 2013,
Claimant was fully recovered from his work-related injuries.                    (Employer’s
Petitioner to Terminate.) On May 9, 2013, Claimant testified before the WCJ.
(May 9, 2013, Hearing Transcript (H.T.).)              On July 23, 2013, Christopher
Wagener, M.D., a board-certified orthopedic surgeon with a specialty in spinal
surgery, testified on behalf of Claimant. (WCJ Decision, F.F. ¶6; Wagener Dep.,


2
  Before the Board, Claimant raised other issues for review; however, Claimant’s appeal before
this Court is limited to the Board’s affirmance of the WCJ’s grant of Employer’s Termination
Petition and does not encompass the Board’s determination regarding litigation fees, denial of
Claimant’s Review Petition or the grant of Claimant’s Claim Petition. (See February 17, 2016
Order, Docket No. 2030 C.D. 2015; December 29, 2015 WCJ Order; September 24, 2015 Board
Order.)

3
  Our review is limited to determining whether there has been any error of law or violation of
constitutional rights, and whether the WCJ’s necessary findings of fact are supported by
substantial evidence. Anderson v. Workers’ Compensation Appeal Board (Penn Center for
Rehab), 15 A.3d 944, 947 n.1 (Pa. Cmwlth. 2010).
                                              2
Notes of Testimony (N.T.) at 5.) On September 25, 2013, Stanley R. Askin, M.D.,
a board-certified orthopedic surgeon, testified on behalf of Employer.                    (WCJ
Decision, F.F. ¶7; Askin Dep., N.T. at 5.) The WCJ issued a decision and order on
July 10, 2014, in which the WCJ found credible Claimant’s testimony concerning
the occurrence of his work-related injury and Claimant’s testimony regarding his
termination from employment after his use of Oxycodone and Flexeril to treat his
work-related injury caused him to fall asleep while operating a jack; however, the
WCJ found Claimant’s testimony in all other respects to be incredible and
unpersuasive.4 (WCJ Decision, F.F. ¶¶4, 6, 8.) The WCJ also rejected as not
credible or persuasive the testimony of Dr. Wagener because, having determined
that Claimant’s testimony was “largely unworthy of belief,” the WCJ found that
the credibility of Dr. Wagener “can rise no higher than that of the Claimant.” (Id.
F.F. ¶9(1).) Furthermore, the WCJ found that Dr. Wagener’s opinion as to how
Claimant could suffer a work-related herniated disc on his left side and yet suffer
symptoms on his right side was “wholly unconvincing,” and that the opinions of
Dr. Askin were consistent with Claimant’s MRI results and more credible and
persuasive. (Id. F.F. ¶9(2)-(3).) The WCJ specifically accepted the testimony and
opinions of Dr. Askin “as credible, persuasive and consistent with the Claimant’s
diagnostic test results and clinical examination results,” and, on the basis of Dr.
Askin’s credible testimony, concluded that Employer demonstrated that Claimant


4
  The WCJ specifically rejected Claimant’s remaining testimony because: “1) The Claimant has
been complaining of right-sided low back symptoms since the occurrence of his work injury.
The only diagnostic test the Claimant underwent was the lumbar MRI which indicated the
Claimant had a herniation/protrusion on the left; 2) The Claimant’s prior treating physician, Dr.
Vrablik, examined the Claimant on five occasions and at no time diagnosed Claimant with
radiculopathy; 3) The testimony of Dr. Askin is more credible, persuasive and consistent with the
Claimant’s MRI results.” (WCJ Decision, F.F. 8(1)-(3).)
                                               3
was fully recovered from his work-related injuries as of April 16, 2013. (Id. F.F.
¶10, Conclusions of Law (C.L.) ¶4.)
            Claimant appealed to the Board and the Board issued a decision and
order on September 24, 2015 affirming the WCJ. In its decision, the Board
reviewed Dr. Askin’s testimony and concluded that it was competent to support a
termination of workers’ compensation benefits because, although Dr. Askin
testified that there was no clinical evidence of any injury, Dr. Askin assumed for
purposes of evaluating recovery that Claimant had experienced the work-related
injury accepted by the NCP. (Board Decision at 7-8.) Claimant appealed the
Board’s decision and order to this Court and argues that the Board’s conclusion
that Dr. Askin’s testimony was sufficient to support a termination of benefits was
based on a misapplication of law.
            Section 407 of the Act provides that NCPs “shall be valid and binding
unless modified or set aside,” in accordance with the Act. 77 P.S. § 731. The Act
provides specific procedures by which an employer or a claimant can seek to
modify or expand the injury described in the NCP, but the purpose of a
Termination Petition is to stop payment of benefits for the sole reason that the
claimant has recovered from the work-related injury; neither party may use a
Termination Petition as a means to alter the injury described in the NCP.
            Where an employer files a Termination Petition alleging that the
claimant is no longer in need of workers’ compensation benefits, the employer
must demonstrate by substantial evidence that either the claimant’s disability has
ceased, or that any remaining conditions are unrelated to the work-related injury
sustained by the claimant. Gillyard v. Workers’ Compensation Appeal Board
(Pennsylvania Liquor Control Board), 865 A.2d 991, 995 (Pa. Cmwlth. 2005) (en


                                         4
banc).   An employer may satisfy its burden by presenting unequivocal and
competent evidence of the claimant’s full recovery from the work-related injuries.
Westmoreland County v. Workers’ Compensation Appeal Board (Fuller), 942 A.2d
213, 217 (Pa. Cmwlth. 2008).          If the medical evidence offered by employer
consists of an expert whose opinion fails to recognize the accepted work-related
injury, the evidence is insufficient to support a termination of benefits. Central
Park Lodge v. Workers’ Compensation Appeal Board (Robinson), 718 A.2d 368,
370 (Pa. Cmwlth. 1998) (“In order to terminate [c]laimant’s benefits, [e]mployer
was required to prove that [c]laimant was completely recovered from all of these
injuries, including the head injuries. Because [e]mployer’s medical expert, Dr.
Valentino, completely failed to address [c]laimant’s head injury, his testimony is
insufficient as a matter of law.”).
             In GA & FC Wagman, Inc. v. Workers’ Compensation Appeal Board
(Aucker), 785 A.2d 1087 (Pa. Cmwlth. 2001), this Court held that the testimony of
the employer’s medical expert was insufficient to support a termination of the
claimant’s benefits because the medical expert opined that claimant’s injuries were
different than the injury described in the NCP and, therefore, it was impossible for
the expert’s evidence to support a finding that the claimant was fully recovered.
Id. at 1092. The injury described in the NCP in GA & FC Wagman, was an
“exacerbation of pseudoarthrosis L4-5.” Id. at 1089. However, the employer’s
expert testified that the work-related injury sustained by the claimant was a sprain
to the muscle ligaments in his back, which had since been resolved, and that while
it was possible that the claimant suffered from pseudoarthrosis at the L4-5 region
as a result of a fusion procedure, the pseudoarthrosis was of no consequence to the
claimant’s disability. Id. At no time had the employer in GA & FC Wagman filed


                                           5
a Review Petition seeking to change the description of the injury in the NCP or had
the WCJ found that the injury was materially incorrect; therefore, it was incumbent
upon the employer to produce evidence that the claimant had recovered from the
injury described in the NCP, which it had failed to do. Id. at 1092; see also
Westmoreland, 942 A.2d at 218 (where the WCJ had previously found that the
claimant had a herniated L–5 disc and lumbar radiculopathy, the testimony of the
employer’s expert that characterized the claimant’s injury as a low-energy back
injury or strain that the claimant was fully recovered from could not support a
termination of benefits).
             The medical evidence in GA & FC Wagman was of a different kind
from that offered by the employer seeking termination of benefits in To v.
Workers’ Compensation Appeal Board (Insaco, Inc.), 819 A.2d 1222 (Pa. Cmwlth.
2003). In To, the employer’s medical expert testified that he had difficulty seeing
how the work-related injury could have happened based on the description of the
injury and the claimant’s self-report of symptoms, which appeared magnified to
the expert. Id. at 1225. The employer’s medical expert in To further testified that
he found no connection between the claimant’s complaints and the work injury that
may or may not have happened, and that because there was no evidence of current
impairment it was the expert’s opinion that the claimant had fully recovered from
any injury he may have sustained in the course of employment. Id. This Court
held that the evidence offered by the employer’s expert was sufficient to support a
termination of benefits because the expert clearly determined that the claimant had
fully recovered from the work injury, despite the expert’s doubts concerning the
occurrence of the injury. Id.



                                        6
                 What distinguishes the testimony offered in To from that offered in
GA & FC Wagman was the medical expert’s knowledge of the accepted work
injury, examination of the claimant and the claimant’s medical history to determine
if the claimant had recovered from that specific injury, and ultimately, the credible
opinion that the claimant had recovered.                 See also Elberson v. Workers’
Compensation Appeal Board (Elwyn, Inc.), 936 A.2d 1195, 1200 (Pa. Cmwlth.
2007) (“At a bare minimum, the expert must know what the accepted work-related
injury was to be competent to testify that a claimant has fully recovered from a
work-related injury.”). In order for a medical expert’s opinion to be competent to
support a termination of benefits, it is not necessary that the expert believe that the
work-related injury occurred or that it occurred in the manner found by the WCJ,
rather it is sufficient that the expert assumes the presence of the injury and bases
any opinions regarding recovery on the question of whether or not the accepted
injury continues to disable the claimant. Hall v. Workers’ Compensation Appeal
Board (America Service Group), 3 A.3d 734, 741 (Pa. Cmwlth. 2010); Jackson v.
Workers’ Compensation Appeal Board (Resources for Human Development), 877
A.2d 498, 503 (Pa. Cmwlth. 2005); To, 819 A.2d at 1225.
                 In the instant matter, Claimant focuses this Court’s attention on Dr.
Askin’s testimony that Claimant “had fully recovered from whatever may have
troubled him in July of 2012.”5 (Askin Dep., N.T. at 12.) Claimant contends that

5
    Dr. Askin’s opinion was given on direct examination during the following exchange:

                 Q. Following your review of his records and his examination, did
                 you reach an opinion within a degree of reasonable medical
                 certainty?

                 A. Yes.

                                                7
Dr. Askin’s opinion is akin to the medical evidence found insufficient in GA & FC
Wagman, and a recent unreported decision, County of Allegheny v. Workers’
Compensation Appeal Board (Murphy), (Pa. Cmwlth. No. 570 C.D. 2015, filed
February 5, 2016), slip op., 2016 WL 453506, where this Court concluded that the
expert’s opinion that the claimant had fully recovered was “worthless” because the
expert repeatedly opined that the claimant’s injury was not work-related and
refused to submit an affidavit of recovery.6 County of Allegheny, slip op. at 8,
2016 WL 453506 *4. However, the testimony found lacking in GA & FC Wagman
and County of Allegheny stands in stark contrast to the testimony given by Dr.
Askin.
              Dr. Askin did not reject or refuse to acknowledge Claimant’s work-
related injury but instead thoroughly testified regarding his opinion that Claimant
had recovered from the work-related low back strain and sprain described in the
NCP based on his examination of Claimant, review of Claimant’s history and
medical records, and his own education and experience as an orthopedic surgeon.
When asked on cross-examination whether Dr. Askin believed that the Claimant
was at his “maximum medical improvement,” Dr. Askin unequivocally answered


              Q. What was that opinion?

              A. That as of the time that I saw him, which was April 2013 and
              this is referencing an injury or alleged injury which occurred in
              July of 2012, I did consider that he was a middle-aged person, that
              he had age appropriate lumbar spondylosis and as a bottom line
              consideration that he had fully recovered from whatever may have
              troubled him in July of 2012.

(Askin Dep., N.T. at 12.)

6
   This Court’s unreported decisions are not binding precedent but may relied upon for their
persuasive value. 210 Pa. Code § 69.414(a).
                                              8
“Yes, there is nothing that he requires based on the injury that is described.”
(Askin Dep., N.T. at 33.) Furthermore, unlike the expert in County of Allegheny,
Dr. Askin had no qualms about swearing an affidavit of recovery consistent with
his testimony. (Askin Dep., Exh A-3.)
            Nevertheless, it is clear from snippets of Dr. Askin’s testimony that he
maintained a level of skepticism regarding Claimant’s work-related injury. For
example, on cross-examination, the following exchange took place:


            Q. Okay. So are—all right. Now, in your report on Page
            Three, the very bottom of the page, you indicate that
            there were no edema -- there was no edema or tears of
            the soft tissues according to the MRI Report that you
            received, is that correct?

            A. Yes.

            Q. Would I be correct in saying that tears of the soft
            tissues and edema would typically not show up on an
            MRI?

            A. Well, if there was a real injury it should. When
            people talk about sprains and strains, by definition, a
            sprain is a partial tear of a ligament and strain is a partial
            tear of a muscle. If Mr. Betancourt had actually been
            injured, there would be such a finding.


(Askin Dep., N.T. at 31.) However, skepticism alone does not render a medical
expert’s testimony incompetent nor do pieces of testimony examined outside the
context of the whole. In O’Neill v. Workers’ Compensation Appeal Board (News
Corp. Ltd.), 29 A.3d 50 (Pa. Cmwlth. 2011), we rejected the argument that a
medical expert’s statement that “I don’t buy [the work-related injury]. It may have


                                          9
been accepted by the judge, but I’m pretty skeptical that she actually suffered
anything working at that job,” holding instead that “notwithstanding [the medical
expert’s] expressed skepticism, as noted by [c]laimant, his testimony as a whole is
akin to testimony this Court has found to be competent and legally sufficient to
support a termination of benefits.” Id. at 55. Such is the testimony given by Dr.
Askin; when examined as a whole, Dr. Askin clearly and unequivocally opined in
his testimony that Claimant had recovered from the work-related injury described
in the NCP. This testimony was found credible by the WCJ, who is free to accept
or reject the testimony of any witness, lay or medical, and who is the ultimate
finder of fact and the exclusive arbiter of credibility and evidentiary weight in
workers’ compensation proceedings. Daniels v. Workers’ Compensation Appeal
Board (Tristate Transport), 828 A.2d 1043, 1052 (Pa. 2003); SCI-Waymart v.
Workers’ Compensation Appeal Board (Feldman), 766 A.2d 900, 902 (Pa.
Cmwlth. 2000). Therefore, as we did in To, we hold that the testimony offered by
Employer’s medical expert, when examined as a whole, is legally sufficient to
support granting Employer’s Termination Petition.
            Accordingly, we affirm the Board’s order.



                                    __________ ___________________________
                                    JAMES GARDNER COLINS, Senior Judge




                                        10
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Samuel Betancourt,                    :
                                      :
                 Petitioner           :
                                      :
           v.                         : No. 2030 C.D. 2015
                                      :
Workers’ Compensation Appeal          :
Board (Exel, Inc., New Hampshire      :
Insurance Company and                 :
Sedgwick CMS),                        :
                                      :
                 Respondents          :

                                   ORDER


           AND NOW this 8th day of September, 2016, the order of the Workers’
Compensation Appeal Board in the above-captioned matter is AFFIRMED.


                                   __________ ___________________________
                                   JAMES GARDNER COLINS, Senior Judge
