          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kimberly Stoutzenberger,                 :
                        Petitioner       :
                                         :
                   v.                    :   No. 1088 C.D. 2014
                                         :   SUBMITTED: June 26, 2015
Workers’ Compensation Appeal             :
Board (Quail Run/Susquehanna),           :
                       Respondent        :



BEFORE:     HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
            HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE LEADBETTER                             FILED: November 5, 2015



            Kimberly Stoutzenberger (Claimant) petitions for review of the May
28, 2014 Opinion and Order by the Workers’ Compensation Appeal Board (Board)
denying her appeal from the Decision and Order of the Workers’ Compensation
Judge (WCJ) denying Claimant’s Petition to Reinstate Compensation Benefits and
granting her Petition to Modify Compensation Benefits (only the denial is at issue
here). Claimant alleges that the WCJ failed to make a reasoned decision supported
by substantial competent evidence. Finding no error, we affirm.
            Claimant was employed at Quail Run Management LLC’s
Susquehanna Valley Nursing and Rehabilitation Center (Employer) as a certified
nursing assistant. She injured her lower back on July 10, 2007. Employer accepted
the injury by Notice of Compensation Payable. Claimant returned to work on
February 18, 2008 and her benefits were suspended through a Notification of
Suspension or Modification. She subsequently filed a Petition to Reinstate
Compensation Benefits alleging that her condition had worsened such that she was
capable only of part-time work from February 18, 2008 to May 5, 2008 and
incapable of work thereafter. A WCJ partially granted Claimant’s Petition on
January 15, 2010 and awarded benefits based on lost wages from her concurrent
employment. She appealed to the Board which affirmed on February 10, 2012. She
did not take any further appeals.
               This matter began on October 11, 2011 when Claimant filed a Petition
to Reinstate Benefits alleging that her condition had worsened. Claimant testified
before the WCJ and both parties presented expert medical testimony. The WCJ
denied the Petition on January 17, 2013, rejecting Claimant’s testimony and that of
her expert and finding the testimony of Employer’s expert credible. On appeal,
Claimant argued that the WCJ erred in denying her Petition to Reinstate by not
issuing a reasoned decision supported by substantial competent evidence. The
Board affirmed and determined that the WCJ was within his province when he
found Claimant’s testimony not credible based upon her demeanor and that the
WCJ adequately explained his rejection of Claimant’s expert medical testimony.
               Claimant here argues1 that the WCJ failed to make a reasoned
decision because his findings of fact are not supported by the record and he failed


    1
       Based on the issue raised, the scope of our review is limited to determining if findings of
fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.
C.S. § 704.



                                                2
to provide an adequate explanation for his rejection of Claimant’s evidence. The
“reasoned decision” requirement is found in Section 422(a) of the Workers’
Compensation Act,2 77 P.S. § 834, which provides as follows:

               Neither the board nor any of its members nor any
               workers' compensation judge shall be bound by the
               common law or statutory rules of evidence in conducting
               any hearing or investigation, but all findings of fact shall
               be based upon sufficient competent evidence to justify
               same. All parties to an adjudicatory proceeding are
               entitled to a reasoned decision containing findings of fact
               and conclusions of law based upon the evidence as a
               whole which clearly and concisely states and explains the
               rationale for the decisions so that all can determine why
               and how a particular result was reached. The workers'
               compensation judge shall specify the evidence upon
               which the workers' compensation judge relies and state
               the reasons for accepting it in conformity with this
               section. When faced with conflicting evidence, the
               workers' compensation judge must adequately explain the
               reasons for rejecting or discrediting competent evidence.
               Uncontroverted evidence may not be rejected for no
               reason or for an irrational reason; the workers'
               compensation judge must identify that evidence and
               explain adequately the reasons for its rejection. The
               adjudication shall provide the basis for meaningful
               appellate review.

               As to Section 422(a), we have explained that in order to be a reasoned
decision within the meaning of that section, the WCJ's decision must allow for
adequate appellate review. If expert medical testimony is presented by deposition,
the WCJ's resolution of conflicting evidence must be supported by more than a
statement that finds one expert to be more credible than another. The WCJ must

   2
       Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1 – 1041.4, 2501-2708.




                                               3
provide some explanation of the actual objective basis for the credibility
determination if the decision is to be a reasoned one that facilitates effective
appellate review. Verizon Pa., Inc. v. Workers' Comp. Appeal Bd. (Mills), 116 A.3d
1157, 1162 (Pa. Cmwlth. 2015). Moreover, there are any number of objective
factors which may support the WCJ's credibility determinations. They must be
identified and articulated. Id. However, Section 422(a) is not carte blanche for a
party to challenge the WCJ's basis for credibility determinations. They will be
upheld on appeal unless they are made in an arbitrary or capricious manner. Id.
              Questions of credibility and evidentiary weight are the exclusive
province of the WCJ as fact-finder. The WCJ is free to accept or reject the
testimony of any witness, including a medical witness, in whole or in part.
Williams v. Workers' Comp. Appeal Bd. (USX Corp.-Fairless Works), 862 A.2d
137, 143 (Pa. Cmwlth. 2004). For appellate review, it is irrelevant whether there is
evidence to support contrary findings; if substantial evidence3 supports the WCJ's
necessary findings, those findings will not be disturbed on appeal. Id. at 144. We
may overturn a credibility determination “only if it is arbitrary and capricious or so
fundamentally dependent on a misapprehension of facts, or so otherwise flawed, as
to render it irrational.” Casne v. Workers' Comp. Appeal Bd. (STAT Couriers, Inc.),
962 A.2d 14, 19 (Pa. Cmwlth. 2008).               With this framework we now turn to
Claimant’s assertion that the WCJ failed to make a reasoned decision.


    3
      Substantial evidence is relevant evidence that a reasonable person might accept as
adequate to support a conclusion. Hoffmaster v. Workers’ Comp. Appeal Bd. (Senco Prod., Inc.),
721 A.2d 1152, 1155 (Pa. Cmwlth. 1998). In reviewing a decision for substantial evidence, the
court must view the evidence in a light most favorable to the party who prevailed before the
WCJ and draw all reasonable inferences from the evidence in favor of the prevailing party. Id.




                                              4
             A claimant seeking reinstatement of suspended benefits must show
that her earning power is again adversely affected by the work-related injury; and,
that the disability that gave rise to the original claim continues. Bufford v. Workers'
Comp. Appeal Bd. (N. Amer. Telecom), 2 A.3d 548, 558 (Pa. 2010); Dougherty v.
Workers' Comp. Appeal Bd. (QVC, Inc.), 102 A.3d 591, 595 (Pa. Cmwlth. 2014).
Here, Claimant testified in support of her Petition to Reinstate and presented via
deposition expert medical testimony by Perry Argires, M.D., who is board certified
in neurological surgery. Employer presented via deposition expert medical
testimony by Robert W. Mauthe, M.D., who is board certified in physical medicine
and rehabilitation, electromyography, and in the subspecialty of pain medicine.
             Claimant testified that she injured her lower back on July 10, 2007
while working for Employer as a certified nursing assistant. (WCJ’s January 17,
2013 Decision and Order, Finding of Fact (FF) 5.a.) Her pain worsened from 2010
to 2011 and she began seeing Dr. Argires. Claimant had physical therapy, and was
given an MRI and a discogram. On August 29, 2011 Dr. Argires performed fusion
surgery on Claimant for her lower back. (FF 5.b.) Claimant testified that her
symptoms are worse since the surgery and that she has been physically unable to
work since January 2010. (FF 5.c.-d.) On cross examination she testified that she
stopped working her part-time light duty position with Employer in May 2008 as
she was unable to perform the duties of that position. Claimant further testified that
she did not feel that she was capable of working since May 2008. (FF 5.e.)
             The WCJ rejected Claimant’s testimony regarding her subjective
levels of pain and her inability to work in any capacity since 2008 based upon her




                                          5
demeanor and comportment.4 In addition to his observation of Claimant’s
demeanor the WCJ noted that Dr. Argires testified that Claimant was capable of
sedentary work leading up to her surgery and then would be disabled totally only
for a period of six to nine months post-surgery. (FF 12.)
              Dr. Argires testified that he began treating Claimant on April 22,
2011. Her primary complaint on that date was back pain and pain into her right
buttock. There were no significant findings on her examination and nothing
pertinent on her neurological examination. Dr. Argires ordered an updated MRI.
(FF 6.b.) Claimant made several more visits to Dr. Argires who ordered additional
tests. A discogram showed that Claimant had a bulging disc. (FF 6.c.-e.) During an
August 9, 2011 visit, Dr. Argires offered her fusion surgery which he performed on
August 29, 2011. Although Dr. Argires considered the surgery to be successful he
was concerned that Claimant seemed to be showing no improvement. He noted
however that the operation had an eighty percent success rate. (FF 6. f.-g.) Dr.
Argires opined that Claimant’s work injury caused an annular tear in the L5-S1
disc that led to her chronic pain and eventually to the surgery. (FF 6.h.)
              On cross-examination Dr. Argires testified that he did not request
medical records predating Claimant’s work injury and that he did not have records
from her prior treating physicians. He agreed that pain is subjective, and that
Claimant exhibited no neurological defects during his examination. (FF 6.i.) Dr.

    4
      The WCJ also noted that in the January 15, 2010 Decision and Order a different WCJ
determined that Claimant was capable of performing full-time light duty work and rejected
Claimant’s assertion that she was disabled totally. (FF 12, fn. 1); (1/15/10 Decision and Order,
FF 12-13). As noted above, the January 15, 2010 Decision and Order was affirmed by the Board
and Claimant did not appeal. The January 15, 2010 WCJ’s Decision and the Board’s February
10, 2012 affirmance are in the record in this appeal as Bureau Exhibits B-01 and B-02,
respectively, to the January 17, 2013 WCJ’s Decision.



                                               6
Argires agreed that annular tears can occur without trauma and can be age related,
and that he would not be able to tell from the discogram when the tear occurred.
He stated that Claimant either had a disc injury as a direct result of the July 2007
work injury or that the injury aggravated a pre-existing bulging disc and that her
pain generator was at the L5-S1 disc. (FF 6.i.-j.)
             Employer’s expert, Dr. Mauthe, testified that he examined Claimant
on three different occasions in 2008, in 2009 and on March 27, 2012. During that
most recent examination Dr. Mauthe obtained her updated history during which
she advised that she had a discogram and the surgery. Dr. Mauthe’s examination
was approximately six months post-surgery. Claimant advised that she felt worse
since the surgery. (FF 7.b.-c.) Dr. Mauthe reviewed the results of the procedures
that she had undergone including the discogram and Dr. Argires’ report on the
August 29, 2011 surgery. Based upon that review, his physical examinations of
Claimant and her history, Dr. Mauthe opined that she continued to display
symptoms from her 2007 work injury in the form of a chronic lumbar strain. (FF
7.d.-f.) Dr. Mauthe further opined that the fusion surgery was not related to
Claimant’s work injury and that the L5-S1 disc was not her pain generator. He
noted that if such were the case one would expect improvement in her symptoms
post-surgery and that they had not improved. (FF 7.g.) Dr. Mauthe testified that he
observed no material change in Claimant’s condition from his earlier examinations
to the March 27, 2012 examination. He opined that she could continue the light
duty work Employer provided in 2010. (FF 7.h.) Dr. Mauthe testified that his
review of the most recent discogram indicated that it was not performed properly
and that it did not show an annular tear. He noted also that there was no reference
to an annular tear in Dr. Argires’ post-operative report. (FF 7.i.-l.)



                                           7
            The WCJ found Dr. Mauthe’s opinions to be more credible than those
of Dr. Argires based upon Dr. Mauthe’s examinations of Claimant over a multi-
year period and the consistency of his opinion of a lumbar strain with the findings
of his March 27, 2012 examination. Dr. Mauthe’s opinion that Claimant’s surgery
was not related to her work injury also was consistent with the various tests that
showed only degenerative findings and with the lack of any improvement after
surgery. The WCJ also noted that Dr. Mauthe’s testimony was consistent with his
previous testimony found credible by the WCJ in the January 15, 2010 Decision.
(FF 13) The WCJ rejected Dr. Argires’ opinions as not credible, noting that
although Dr. Argires testified that Claimant’s work injury caused an annular tear,
he could not tell from the discogram when the tear occurred. Further, the WCJ
observed that although Dr. Argires noted that there were no significant findings
during his initial examination of Claimant and no positive neurological findings, he
nonetheless later determined that Claimant was a surgical candidate. This, coupled
with the lack of improvement in Claimant’s condition after surgery, led the WCJ to
accept Dr. Mauthe’s opinions over those of Dr. Argires. (FF 14)
            Claimant’s assertion that the WCJ did not issue a reasoned decision
ignores that the WCJ rejected her testimony based on her demeanor and on
inconsistencies between her testimony and that of Dr. Argires, as well as the
findings of the WCJ in her earlier appeal. Instead she argues that the WCJ did not
issue a reasoned decision when he found Dr. Mauthe more credible than Dr.
Argires because that determination was based only on two factors: the WCJ
credited Dr. Mauthe’s opinion on the presence or absence of an annular tear; and
the WCJ gave more weight to Dr. Mauthe’s opinions regarding the cause of
Claimant’s symptoms where the surgery performed by Dr. Argires did not alleviate



                                         8
her symptoms. She argues that the uncontradicted evidence shows that she had an
annular tear and that the WCJ ignored Dr. Argires’ testimony that twenty percent
of patients will not experience improvement from the surgery he performed.
             However, the record shows that the WCJ’s credibility determination
was not so limited. The WCJ explained that his acceptance of Dr. Mauthe’s
testimony and rejection of Dr. Argires’ was based on the consistency of Dr.
Mauthe’s opinions with his examination findings and with his prior testimony, and
his examination of Claimant on multiple occasions. The WCJ also found
inconsistencies in Dr. Argires’ testimony including the lack of significant findings
in his initial examination and subsequent diagnosis of a condition requiring
surgery, the admission that annular tears can be age related, and the inability to
date the tear he alleged was seen in Claimant’s discogram. (FF 13-14)
             We have reviewed the record consistent with the rubric outlined above
and we conclude that the WCJ properly resolved conflicting evidence and that the
resolution is supported by more than a statement that finds one expert to be more
credible than another. The WCJ provided a sufficient explanation of the actual
objective basis for the finding that Claimant’s testimony was not credible and that
Dr. Mauthe’s opinions were more credible than those of Dr. Argires. We thus
conclude that the WCJ’s January 17, 2013 Decision is a reasoned one that
facilitates effective appellate review. Verizon. On this basis we affirm.




                                        _____________________________________
                                        BONNIE BRIGANCE LEADBETTER,
                                        Judge




                                          9
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kimberly Stoutzenberger,                :
                        Petitioner      :
                                        :
                  v.                    :     No. 1088 C.D. 2014
                                        :
Workers’ Compensation Appeal            :
Board (Quail Run/Susquehanna),          :
                       Respondent       :


                                     ORDER


            AND NOW, this 5th day of November, 2015, the order of the
Workers’ Compensation Appeal Board is AFFIRMED.




                                      _____________________________________
                                      BONNIE BRIGANCE LEADBETTER,
                                      Judge
