              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Scott and Longacre Trucking,            :
                  Petitioner            :
                                        :   No. 588 C.D. 2017
            v.                          :
                                        :   Submitted: September 8, 2017
Workers’ Compensation Appeal            :
Board (Darrow),                         :
                Respondent              :


BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                        FILED: October 26, 2017


            Scott and Longacre Trucking (Employer) petitions for review of the April
18, 2017 decision of the Workers’ Compensation Appeal Board (Board) affirming the
order of a workers’ compensation judge (WCJ) granting a claim petition filed by Daniel
Darrow (Claimant).


                            Facts and Procedural History
            Claimant began working for Employer in July of 2012 as a truck driver.
Claimant was injured on February 28, 2013, when he lost his footing, slipped and twisted
his back while ratcheting down the strap on a load of pipe. (Finding of Fact No. 11.)
Claimant sustained a low back injury, lumbosacral discogenic pain, and bilateral
sacroiliac joint dysfunction. (Finding of Fact No. 6.) Claimant returned to work the
following week, but was terminated for misconduct approximately two weeks later, on
March 22, 2013. (Finding of Fact No. 13.) Claimant acknowledged that he was
incarcerated in July of 2015 for approximately ten days. (Board’s op. at 6.)
             Claimant filed a claim petition on June 17, 2015, seeking total disability
benefits from March 1, 2013, and ongoing. Employer filed an answer denying all material
allegations of Claimant’s petition and alleging that Claimant failed to give adequate notice
of his injury; failed to treat with a designated physician within the first 90 days of the
injury; may have received unemployment compensation and sickness/accident/disability
carrier benefits to which Employer is entitled a credit; and was not within the course and
scope of employment at the time of the alleged injury.
             On September 29, 2015, Employer filed a termination petition alleging that
Claimant had recovered from any work-related injury as of March 6, 2013, or, in the
alternative, September 15, 2015. The matter was assigned to a WCJ, who held multiple
hearings.
             Claimant testified that, on or about February 28, 2013, he sustained a
sprain/strain to his lower back while attempting to tighten down a strap on a load of pipe,
at which point he lost his footing and slipped, causing him to twist his low back and
experience pain in his lower back down to his buttocks. In the early morning hours of the
following day, Claimant sought care from an emergency room where he received
medication and a written excuse for two days off work. Claimant testified that he then
followed up with his family doctor on March 4, 2013, who provided him with a written
excuse for two more days off work. Claimant testified that he returned to work on March
6, 2013, still “extremely sore” but, because it was the wintertime, there was “lighter duty
work.” (R.R. at 101a.) Claimant stated that his family doctor subsequently recommended
that he see an orthopedic surgeon, Dr. Robert Matthews. However, prior to seeing Dr.
Matthews, Claimant testified that Employer terminated him on March 22, 2013,
referencing a “vulgar” statement he had written about Employer on a dry erase board in

                                            2
the break room and stating that one of Employer’s owners disliked Claimant’s driving
because he seemed to have more accidents. (Finding of Fact No. 12.)
             Regarding the termination, the parties stipulated that Claimant had written
vulgar words on a dry erase board in the break room; that Claimant had damaged a
company vehicle; that Claimant was subsequently terminated; and that, at the time of his
termination, there was no discussion regarding Claimant’s back injury. (Finding of Fact
No. 14.) Claimant testified that when he saw Dr. Matthews in April, he was placed on a
10-pound lifting restriction and received treatment in the form of medication and
injections, which his subsequent doctor, Dr. John A. Kline, Jr., continued to administer
when he began seeing him in 2015. (Finding of Fact No. 12.)
             On cross-examination, Claimant admitted that from the time that he returned
to work until the time of his termination, he worked “full duty” and continued his regular
assignments without any restrictions.       (Finding of Fact No. 13.)        Claimant also
acknowledged that he had a history of intermittent periods of chronic low back pain and
that he was involved in a motor vehicle accident in 1985, where he was pinned by a fire
truck against a wall, resulting in the fracture of his pelvis and spinal bones. Claimant also
admitted to injuring his back in 1992 or 1993 while shoveling snow during his work as a
paramedic, and stated that he did receive medical treatment but not workers’
compensation benefits. Finally, Claimant also admitted to being incarcerated for 10 days
in July of 2015. (Finding of Fact No. 13; R.R. at 119a-20a.)
             Claimant also presented the deposition testimony of his treating physician,
Dr. Kline, board certified in physical medicine and rehabilitation, who began treating
Claimant on April 14, 2015, two years post-work injury. Dr. Kline testified that he
evaluated Claimant and reviewed his medical records, which included the emergency
room notes from the morning after the injury, an MRI report from August 4, 2014, and
medical records from four other doctors, including the office notes of Dr. Matthews. Dr.

                                            3
Kline diagnosed Claimant with bilateral sacroiliac joint dysfunction, left greater than
right, and lumbosacral discogenic pain, prescribed him pain medications, and restricted
him to modified-duty work with a 10-pound lifting restriction. Dr. Kline stated that
although he could not give an opinion concerning Claimant’s physical status prior to
actually physically evaluating him, he believed the work injury was the cause of
Claimant’s injuries and that it would have been reasonable for the present restrictions he
placed on Claimant to have extended back to the time of Claimant’s initial medical
treatment following the injury. (Findings of Fact Nos. 6, 22.)
               Although Claimant did not present Dr. Matthews’ testimony, he did present
Dr. Matthews’ office notes, which included: an April 2, 2013 note stating that Claimant
could not do heavy work and continued to have “rather severe” low back pain; notes from
April 8 and 10, 2013, suggesting that Claimant should be able to return to light duty work
with a back brace; a note from May 8, 2013, taking Claimant out of work; and a May 22,
2013 note that lacks any statement about Claimant’s ability to work. (Findings of Fact
Nos. 6, 20.)
               Employer submitted the testimony of its medical expert, Dr. Rodwan
Rajjoub, a board certified neurosurgeon, who reviewed Claimant’s records and performed
an independent medical examination of Claimant. Dr. Rajjoub testified that Claimant
would have recovered from any type of strain/sprain injury by March 6, 2013, and that,
as of the date of the examination on September 15, 2015, Claimant had no muscle
weakness or trigger points, he could walk on his heels and toes normally, and his gait,
reflexes, and results of physical tests performed during the evaluation related to his lumbar
spine were normal. (Findings of Fact Nos. 15, 23, 26.) Dr. Rajjoub also testified that he
reviewed the emergency room note from the morning after the injury, which stated:

               This [is a] 46-year-old gentleman who walk[ed] in the
               Emergency Room with severe pain in the lower back for the

                                            4
                  past few weeks. The patient used to have chronic low back
                  pain off and on and used to have breaks and get a little bit
                  better and he would have pain but for this time for the past
                  few weeks the pain is constant and is bothering him. When
                  he wakes up in the morning, his back is stiff and he has
                  difficulty getting out of bed and both his thighs and gluteal
                  areas the pain is there and stiffness is there. The patient
                  denies any direct trauma recently but he was involved in a
                  motor vehicle accident in 1985 when he got pinned down by
                  a vehicle against the wall and resulted in the fracture of his
                  pelvis and spinal bones.

(R.R. at 262a.)1 Dr. Rajjoub created a report based upon his evaluation of Claimant and
his medical records, noting:

                  [Claimant] [d]enies having back pain prior to his injury. I
                  reviewed the records [Employer] supplied me with and I
                  reminded [Claimant] that he had back problems before. He
                  denied this and then later on stated he was involved in a
                  [motor vehicle accident] in 1985 when he got pinned down
                  by a vehicle against a wall that resulted in fracture of his
                  pelvis and spinal bone. I do not have a report for the accident

       1
         Claimant testified that when he was preparing the paperwork for his claim petition, he was
surprised to see the content of the emergency room doctor’s notes and subsequently asked the doctor
to amend the records to reflect what Claimant believed he had told the doctor during the visit. (R.R.
at 124a-26a.) The doctor created an addendum, dated April 17, 2013, which stated that Claimant
experienced the pain after a slip and fall at work, but retained the statement regarding Claimant’s
history of lower back pain:

                  The patient has a history of chronic low back [pain] off and on that
                  would get better with some rest and some pain medications but this
                  pain since yesterday has been bothering him very much: When he
                  woke up this morning, his back is stiff and he has difficulty getting out
                  of bed and both his thighs and gluteal areas pain is there and stiffness
                  is there. The patient denies any direct trauma recently but he was
                  involved in a motor vehicle accident in 1985 when he got pinned down
                  by a vehicle against a wall and resulted in the fracture of his pelvis and
                  spinal bones.

(R.R. at 280a.)

                                                      5
             or injury. He reported that he did have back pain at that time
             for a length of time which he did not specify the time.
             Again[,] in the 1990’s [sic] he had an additional injury that
             resulted in lower back pain and he was treated for a while.
             Again[,] in the record it states that in 2003 he reports having
             acute back pain and again was treated conservatively with
             relief of his pain. When I reviewed the original record of
             3/1/13 from [the emergency room hospital with him,] . . . Mr.
             Darrow had denied that history despite I read it [sic] in front
             of him as well as his sister. Furthermore[,] I reminded him
             of the additional office visits of 3/4/13, 3/29/13 & 4/2/13
             from Dr. Robert Matthews, [which indicated the same
             history, and] he denied what is written in the history. He
             blamed his doctor for not reporting his history properly
             despite that I reminded him [sic] that the history would have
             came [sic] from him at the time of the interview. He blamed
             all the physicians who seen [sic] him in the past for [the]
             incorrect history as he stated. In the history of one of the
             entries of 3/27/13[,] he had upper back pain with no injury.
             He did not recall this.
(R.R. at 265a.)
             On August 3, 2016, the WCJ filed a decision and order granting Claimant’s
claim petition and awarding him total disability benefits for a closed period from March
22, 2013, the date of his termination, to September 14, 2015, the date of Dr. Rajjoub’s
examination.      The WCJ also granted Employer’s termination petition, terminating
benefits as of September 15, 2015.2 Finally, the WCJ ordered Employer to pay Claimant’s
counsel $482.07 for costs of litigation.
             In his opinion and order, the WCJ rejected the testimony of Dr. Kline as less
persuasive than Dr. Rajjoub’s, since he was not able to “corroborate his opinion with any
objective evidence.” (Finding of Fact No. 24.) The WCJ accepted the testimony of Dr.
Rajjoub as credible and persuasive.         Specifically, the WCJ credited Dr. Rajjoub’s
testimony that Claimant was fully recovered as of the date of his examination but rejected

      2
        The WCJ did not make a determination regarding whether Claimant’s benefits should have
been suspended for the 10-day period that he was incarcerated.

                                              6
the notion that Claimant was recovered as of the date he returned to work. (Finding of
Fact No. 26.)
             With regard to Claimant, the WCJ stated that he found his testimony not
credible, except with regard to his testimony that he was injured while at work. (Findings
of Fact Nos. 18, 25.) As to Claimant’s history of back pain, the WCJ stated, “This WCJ
was neither impressed nor persuaded by the testimony of the claimant. . . . [C]laimant was
not candid with Dr. Rajjoub with regard to a history of back pain and problems before
February 28, 2013.” (Finding of Fact No. 25.) However, with regard to Claimant’s
testimony about his injury, the WCJ found that it was corroborated by two reports from
Dr. Matthews, which confirmed that Claimant was injured while trying to bind down a
load of pipe. (Finding of Fact No. 19.) The WCJ also found that Claimant returned to
work on March 6, 2013, “on light duty,” despite acknowledging that there were “no
medical documents to suggest that [Claimant’s light-duty restriction] was supported by a
physician.” (Finding of Fact No. 20.) In reaching that determination, the WCJ relied on
Dr. Matthews’ April and May 2013 office notes, taken after Claimant was terminated,
indicating that Claimant could return to light work in a back brace, could not do heavy
work and continued to have back strain/sprain, but ultimately took Claimant out of work
entirely. (Finding of Fact No. 20.) Accordingly, the WCJ found that Claimant met his
burden of proof to establish that he sustained a work-related injury. (Conclusion of Law
No. 2.)
             As to Employer’s termination petition, the WCJ concluded that Employer
had failed to meet its burden of proving that Claimant’s benefits should have been
terminated as of March 6, 2013, since “[E]mployer had placed him in a light duty position
recognizing his work injury.” (Conclusion of Law No. 3.) The WCJ also determined that,
although Claimant was discharged for misconduct on March 22, 2013, Employer was not
excused from paying benefits for Claimant’s work injury because the termination

                                           7
occurred after the work injury. (Conclusion of Law No. 4.) The WCJ, however,
determined that Employer had met its burden of proving that Claimant was fully
recovered as of the date of Dr. Rajjoub’s evaluation on September 15, 2015, and granted
the termination petition as of that date. (Conclusion of Law No. 6.)
             Both Employer and Claimant appealed to the Board. Employer maintained
that the WCJ erred by: (1) granting the claim petition because Claimant failed to prove
that he suffered a work-related injury and ongoing period of disability and because the
only evidence that the WCJ relied upon to grant the petition, Claimant’s medical records,
was inadmissible hearsay, which should not have been considered because the claim
exceeded 52 weeks; and (2) applying the wrong legal standard to determine whether the
loss of earnings was the result of Claimant’s alleged disability since Claimant was
discharged for misconduct while working without restrictions. Employer argued, in the
alternative: (1) the termination petition, if not moot, should have been granted as of March
6, 2013, or August 14, 2013, as the medical evidence established Claimant was fully
recovered as of those dates; and (2) the WCJ erred in failing to grant an automatic
suspension of benefits for the 10-day period in 2015 during which Claimant admitted he
was incarcerated.
             Claimant argued that the WCJ erred in: (1) capriciously disregarding the
testimony of his expert, Dr. Kline; (2) finding Claimant was terminated for “misconduct”;
(3) granting a termination of benefits as of September 15, 2015; and (4) denying an award
of litigation costs for fees related to Dr. Kline’s deposition.
             The Board affirmed the WCJ’s decision.               With regard to Employer’s
argument, it held: (1) Claimant had met his burden of proof on the claim petition because
the medical records were admissible since Employer had used them to cross-examine its
own medical expert; (2) Employer did not prove the acts Claimant committed resulting in
his termination were committed in bad faith; (3) the medical records of Dr. Matthews

                                             8
related back to the date of the injury and established that Claimant had employment
restrictions at the time of his termination; (4) the WCJ properly granted the termination
petition as of September 15, 2015, as Employer did not present competent evidence of
full recovery until that date; and (5) the WCJ was not obligated to grant a suspension of
benefits for the time that Claimant was incarcerated because Employer had not
specifically requested that relief. The Board also rejected all of Claimant’s arguments.
              Employer thereafter filed an appeal with this Court,3 renewing its previous
arguments.


                                           Discussion
              A claimant bears the burden of demonstrating a right to compensation by
establishing all of the elements necessary to support an award. Inglis House v. Workmen’s
Compensation Appeal Board (Reedy), 634 A.2d 592, 595 (Pa. 1993). As part of this
burden, a claimant is required to establish a causal connection between the disability and
the work-related incident. Calcara v. Workers’ Compensation Appeal Board (St. Joseph
Hosp. & Franciscan Health Sys.), 706 A.2d 1286, 1289 (Pa. Cmwlth. 1998). When a
claimant suffers an injury that is not obviously causally connected, unequivocal medical
evidence is required, and “hearsay medical evidence to which there is no objection must
be corroborated by other competent medical evidence, and not simply by the testimony
of the claimant or another untrained lay witness.” Id. at 1288; see also Zander v.
Workmen’s Compensation Appeal Board (Warrington Equipment Co.), 449 A.2d 784,
786 (Pa. Cmwlth. 1982) (holding a claimant failed to prove his claim because of a lack of


       3
         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. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704; Meadow Lakes
Apartments v. Workers’ Compensation Appeal Board (Spencer), 894 A.2d 214, 216 n.3 (Pa. Cmwlth.
2006).

                                                9
medical testimony which “clearly and expressly” connected his current disability with a
compensable injury). To be unequivocal, “the medical witness must testify, not that the
injury or condition might have or possibly came from the assigned cause, but that in his
professional opinion the result in question did come from the assigned cause.” Lewis v.
Workmen’s Compensation Appeal Board (Pittsburgh Board of Education), 498 A.2d 800,
802 (Pa. Cmwlth. 1985).
               With regard to the presentation of medical records as evidence to support
a claim petition, section 422(c) of the Workers’ Compensation Act (Act)4 provides in
part:

              Where any claim for compensation at issue before a workers'
              compensation judge involves fifty-two weeks or less of
              disability, either the employe or the employer may submit a
              certificate by any health care provider as to the history,
              examination, treatment, diagnosis, cause of the condition and
              extent of disability, if any, and sworn reports by other witnesses
              as to any other facts and such statements shall be admissible as
              evidence of medical and surgical or other matters therein stated
              and findings of fact may be based upon such certificates or such
              reports. Where any claim for compensation at issue before a
              workers' compensation judge exceeds fifty-two weeks of
              disability, a medical report shall be admissible as evidence
              unless the party that the report is offered against objects to its
              admission.

77 P.S. §835 (emphasis added). In Walker v. Unemployment Compensation Board of
Review, we expounded that:

              (1) Hearsay evidence, properly objected to, is not competent
              evidence to support a finding of the Board[;] (2) Hearsay
              evidence, admitted without objection, will be given its natural
              probative effect and may support a finding of the Board, if it is

        4
        Act of June 2, 1915, P.L. 736, added by the Act of June 26, 1919, P.L. 642, as amended, 77
P.S. §835.


                                               10
              corroborated by any competent evidence in the record, but a
              finding of fact based solely on hearsay will not stand.

367 A.2d 366, 370 (Pa. Cmwlth. 1976) (emphasis in original) (citations omitted).5
              Employer argues that the WCJ erred in granting the claim petition because
Claimant failed to meet his burden of proof that he suffered a work-related injury and an
ongoing period of disability. Employer further argues that the sole evidence that the WCJ
relied upon in granting the claim petition—Claimant’s medical records—was
inadmissible hearsay, and should not have been considered because the claim for
disability exceeded 52 weeks.
              Citing Huff v. Workmen’s Compensation Appeal Board (Ingalls Steel of
Pennsylvania), 453 A.2d 753 (Pa. Cmwlth. 1982), the Board rejected this argument,
stating that the WCJ did not err in admitting the hearsay reports of Dr. Matthews since
Employer used them to cross-examine Dr. Rajjoub. In Huff, at a hearing before a referee,
the testimony of the claimant was presented in addition to the depositions of his treating
physician and the employer’s examining physician. In order to support the testimony of
its own physician witness, the employer sought to introduce the written reports of a third
consulting physician, to which the claimant’s physician had referred him. The reports
were entered into evidence over the claimant’s objection. On appeal, this Court held the
following:

              Claimant contends that admission of the reports of the
              consulting physician was an error of law and without them
              the findings of the referee are unsupported by substantial
              competent evidence. We do not agree. The reports of the
              consulting physician, while admittedly hearsay, were
              properly employed during cross-examination to impeach the
              credibility of [claimant’s] treating physician. In addition,
              they tended to corroborate the testimony of [employer’s]

       5
        This Court has since adopted the Walker rule in workers’ compensation matters. Calcara,
706 A.2d at 1288.

                                              11
              neurologist and were discussed by the referee in that manner.
              In workmen’s compensation cases, hearsay testimony, if
              relevant and material to facts at issue, may be considered for
              the additional light it sheds on the matter.

Id. at 755.
              Huff stands for the unremarkable proposition that hearsay evidence is
admissible to impeach the credibility of a witness. However, Huff did not state that
uncorroborated hearsay statements in a claimant’s medical records could be used as the
exclusive means to support a claim petition where the causal connection between the
disability and the work-related incident is not obvious. Nor did the Huff decision overrule
the holding in Walker that hearsay evidence admitted without objection must be
corroborated by competent evidence in the record in order to support a finding, but that a
finding of fact cannot be based solely on hearsay evidence. Walker, 367 A.2d at 370.
              In this case, Claimant had a clear and lengthy history of back pain dating
back to 1985, about which the WCJ found Claimant to have been dishonest. (Finding of
Fact No. 25.) Indeed, the original emergency room record from the morning after the
injury stated that Claimant had chronic back pain off and on but, “for the past few weeks[,]
the pain [was] constant and [was] bothering him.” (R.R. at 262a) (emphasis added).
Moreover, Claimant himself admitted to having sustained two previous injuries to his
back and to having chronic low back pain. (Finding of Fact No. 13.) Employer, which
denied both the work injury and the wage loss claim, clearly disputed Claimant’s injury
from the start of the proceedings. (R.R. at 132a-33a.) As such, the causal connection
between Claimant’s disability and the work-related injury was not obvious, since it was
not clear how or in what way his pre-existing condition was triggered or aggravated by
the February 28, 2013 work incident. Consequently, Claimant bore the burden of
demonstrating the existence of such a causal connection by presenting unequivocal
medical evidence from an expert. Calcara, 706 A.2d at 1289.

                                           12
             In support of his claim petition, Claimant introduced his medical records,
including the notes of Dr. Matthews, which the WCJ found credible. (Finding of Fact
No. 20.) While Employer contends that the medical records should have been disregarded
because it objected to their admission, Claimant vigorously disputes this, arguing that
Employer never properly made or preserved such an objection. However, we need not
resolve this issue because, even assuming that all of Claimant’s medical records were
admissible, Claimant was nonetheless required to corroborate the out-of-court statements
made by Dr. Matthews in the medical records with other competent medical evidence to
adequately establish a causal connection. Id. at 1289.
             Claimant attempted to do so by presenting the testimony of his physician,
Dr. Kline; however, Dr. Kline’s testimony was rejected as not credible and thus could not
have corroborated the medical records. (Finding of Fact No. 24.) Neither could the
testimony of Claimant, an untrained lay witness, have corroborated the medical records,
even if the WCJ were to have found Claimant credible. See Calcara, 706 A.2d 1289 (The
“relaxation [of the rules of evidence under the Act] cannot include permitting an untrained
person to corroborate evidence relating to the causal relationship established by an expert
in a particular field.”). Finally, contrary to Claimant’s suggestion, the testimony of
Employer’s medical expert also did not corroborate any causal relationship established by
medical records because, as Employer points out, Dr. Rajjoub testified that any back
injury Claimant had sustained was resolved by the time he returned to work. (R.R. at
222a.) Dr. Rajjoub testified that the typical injury that results from an incident like the
one Claimant described is “a classic case of strain/sprain of the back,” but went on to state
that Claimant’s chronic pain, such as that which he reported in 2003, could be attributed
to his 1985 motor vehicle accident. (R.R. at 216a-17a.) Further, Dr. Rajjoub testified that
he reviewed an x-ray of Claimant’s spine taken on March 1, 2013, and noted that there
was no evidence of any acute trauma to the lumbar spine. (R.R. at 225a.) Clearly, Dr.

                                           13
Rajjoub’s testimony cannot be construed as corroborating a causal relationship between
Claimant’s alleged disability and the work-related incident. Therefore, even if the
medical records were admissible, Claimant nonetheless did not meet his burden of
proving a causal relationship because he did not present any competent medical evidence
to corroborate Dr. Matthews’ statements in the medical records.
            The WCJ and Board erred in disregarding Claimant’s burden of
demonstrating a causal relationship in this case by concluding that Claimant’s testimony
about his injury, corroborated by the medical records from Dr. Matthews, was sufficient
for him to prove entitlement to compensation. To the contrary, it was Claimant’s medical
records that required corroboration by a medical expert who could establish the causal
relationship between Claimant’s injury and his alleged loss of earning power. Because
he failed to do so, the WCJ and Board erred in determining Claimant established a right
to compensation.
                   Accordingly, the order of the Board is reversed.



                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge




                                         14
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Scott and Longacre Trucking,           :
                  Petitioner           :
                                       :    No. 588 C.D. 2017
            v.                         :
                                       :
Workers’ Compensation Appeal           :
Board (Darrow),                        :
                Respondent             :


                                   ORDER


            AND NOW, this 26th day of October, 2017, the April 18, 2017 decision
of the Workers’ Compensation Appeal Board is hereby reversed.



                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge
