         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Alisha Edwards,                     :
                   Petitioner       :
                                    :
             v.                     :
                                    :
Workers’ Compensation Appeal        :
Board (Charles and Arlene Felty and :
Harleysville Insurance Company),    : No. 2612 C.D. 2015
                   Respondents      : Submitted: June 24, 2016


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


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                             FILED: July 14, 2016


            Alisha Edwards (Claimant) petitions for review of the order of the
Workers’ Compensation Appeal Board (Board) affirming the Workers’
Compensation Judge’s (WCJ) decision to terminate compensation benefits because
Claimant had fully recovered from her work-related injury. We affirm.


                                        I.
            On September 4, 2012, Claimant sustained an injury while working
for Charles and Arlene Felty (Employer) as a bus driver when a child assaulted her.
A Notice of Temporary Compensation Payable was issued by Employer on
September 19, 2012, describing Claimant’s work injury as a “cervical
strain/concussion.”    On November 29, 2012, Employer issued a Notice of
Compensation Payable (NCP) accepting as compensable an injury described as
“head post concussive syndrome.” Subsequently, Employer filed a Termination
Petition (Petition) alleging Claimant had fully recovered from her work injury.
This Petition was based upon the independent medical examination (IME) of
Richard H. Bennett, M.D. (Dr. Bennett). Claimant filed an answer denying that
there was a basis to terminate her benefits.


                                          II.
             In support of its Petition, Employer offered the deposition testimony
of Dr. Bennett, a physician board certified in neurology and electromyography.
Dr. Bennett performed an IME of Claimant on March 14, 2013, at which time he
obtained a history, reviewed medical records and diagnostic studies, and conducted
a physical examination.1


             Claimant described her work injury to Dr. Bennett as being struck or
kicked in the side of the head by an unruly child as she was operating a school bus.
Claimant recalled that she was able to pull the bus over to the side of the road, exit
the bus and call for help. Claimant advised Dr. Bennett that after police and school
officials arrived and escorted the child away, Claimant was able to drop the one
remaining child off and then report back to her home base, where she completed an




      1
         Employer also offered into evidence a copy of Dr. Bennett’s March 14, 2013 IME
report and a Physician’s Affidavit of Recovery dated April 5, 2013.




                                          2
accident report. Claimant was then escorted to the Pottsville Hospital emergency
room for evaluation.


              Claimant indicated to Dr. Bennett that her major problem involved
persistent headaches. She admitted that she suffered from migraines in the past,
but that her headaches after the incident were more intense and more frequent,
experiencing nearly daily headaches, with some causing nausea, vomiting,
photophobia and phonophobia. Dr. Bennett testified that Claimant’s headaches
were reportedly holocephalic, meaning they were not localized and involved the
entire head, “the kinds of headaches you see with tension-type headaches or
muscular traction headaches, not headaches that indicate something seriously
wrong.” (Reproduced Record (R.R.) at 161a.)


              Dr. Bennett testified that he performed a comprehensive neurological
and physical evaluation, including a motor, sensory and musculoskeletal
evaluation, as well as a check of Claimant’s cranial nerve function, hearing, sight
and speech. Dr. Bennett’s examination evidenced no cognitive issues, no cranial
nerve impairment due to the effects of the accident, no loss of motor function or
sensation, and normal field of vision. Dr. Bennett also performed cerebellar testing
and gait assessment and found that Claimant appeared to be able to walk without
any obvious problems. Dr. Bennett noted that Claimant’s gait appeared to be
exaggerated and that she had some degree of exaggeration or embellishment
relative to her complaints of vertigo and balance issues.2 Dr. Bennett testified that

       2
        Dr. Bennett also indicated that a note from a Dr. Albert dated September 18, 2012, two
weeks after the incident, evidenced that Claimant’s heel to toe walking was normal.



                                              3
Claimant had no abnormal findings on the diagnostic studies he reviewed and that
her complaints varied depending on when and who she was treating with.


                Based upon all of the above, Dr. Bennett opined that Claimant had
fully recovered from her accepted injuries, that she did not require ongoing
treatment and that she could return to work at her pre-injury job without
restrictions.    Moreover, Dr. Bennett opined that Claimant’s evaluation was
objectively normal with the exception of a prior ocular injury to her left eye,
unrelated to her work injury.


                On cross-examination, Dr. Bennett acknowledged that there is rarely
anything objective when examining a patient for the criteria of concussions
because the patient’s brain imaging studies tend to be normal and there are no
objective signs of headaches. Dr. Bennett went on to state that headaches are
common, and that the circumstances of this particular incident did not indicate a
severe traumatic brain injury as Claimant did not lose consciousness, continued to
drive and was able to fill out an accident report. Upon redirect, Dr. Bennett
reiterated that he did not see any medical evidence to correlate Claimant’s
subjective complaints to her work injury.


                Employer also admitted into evidence a surveillance report from HUB
Enterprises, Inc., along with a DVD containing video footage relative to
Claimant’s activities on November 16, 2013. The video surveillance depicted
Claimant standing on her porch, smoking a cigarette, walking, carrying a sign,
descending and ascending stairs from a porch, and entering a home. While the



                                            4
video footage is brief, the WCJ noted that Claimant appeared to walk without any
observable difficulty and without the aid of any ambulatory device or cane.


            Claimant testified before the WCJ that she worked for Employer for
seven years driving a school bus for special needs children. She testified that her
injury was caused when she was struck or kicked in the head by one of the students
on the bus. Claimant testified that she did not remember pulling the bus over to the
side of the road, but she did recall taking the remaining child home after the
incident. According to Claimant, she instantly had a headache, her ears were
ringing, her head was spinning, and she threw up several times after arriving back
at her home base. Claimant testified that her headaches have continued since the
incident, but admitted that they have improved some over time. Claimant also
testified that since the incident, she needs assistance with certain tasks such as
making dinner, cleaning up after her children and washing her clothes. Claimant
stated that she got a cane to help her walk as she had a tendency to get dizzy and
fall frequently. Claimant denied having a history of migraines prior to her work
injury.


            While no one has taken away her license, Claimant testified that she
does not drive because of her headaches, wobbliness and instability walking.
Claimant does not believe she can return to her prior job as a bus driver. Claimant
admitted that she has not made any attempt to return to work, despite the fact that
her treating physician released her to perform modified-duty work.




                                         5
             Claimant also offered into evidence the deposition testimony of John
B. Chawluk, M.D. (Dr. Chawluk), a physician board certified in adult neurology.
Dr. Chawluk treated Claimant from October 8, 2012, through January 6, 2014. He
testified that his initial diagnosis relative to Claimant’s work injury was a traumatic
brain injury with post-concussive symptomatology, including migrainous
headaches and vertigo. Dr. Chawluk further testified that symptoms of headaches,
vertigo and balance difficulty were typical for that type of head injury. According
to Dr. Chawluk, he observed that at times Claimant had to hold onto the wall as
she walked down the hallway; otherwise, she would lose her balance.


             Dr. Chawluk confirmed that in April 2013, he released Claimant to
perform “modified light duty where she did not have to operate machinery or a
motor vehicle or place herself in any positions where her balance impairment could
lead to catastrophe such as unprotected heights, ladders, et cetera.” (R.R. at 169a.)
Dr. Chawluk opined that Claimant had not fully recovered from her work injury
because she was still experiencing severe headaches, was unsteady with her
walking and experienced vertigo with activities.


             Upon cross-examination, Dr. Chawluk admitted that Claimant’s
September 13, 2012 MRI of the brain and CT scan were normal, and that he was
aware of no objective diagnostic scan that was abnormal. He also admitted that he
did not have the opportunity to evaluate Claimant walking outside his office and
that he did not view the video surveillance of Claimant.




                                          6
             The WCJ accepted the opinions of Dr. Bennett “as credible, logical,
internally consistent, and persuasive.” (R.R. at 171a.) Dr. Bennett explained that
Claimant’s accident did not appear that severe as she suffered no loss of
consciousness, remained in control of herself, was able to pull the bus over and call
for help, finished her driving assignment for the day, and completed an accident
report. The IME was performed six months after the incident, which Dr. Bennett
testified was beyond the point in time where vestibular problems from concussion
would have been present. The WCJ also credited Dr. Bennett’s statement that
Claimant had some degree of exaggeration or embellishment relative to her
subjective complaints of balance issues. This statement was corroborated by the
surveillance video as well as a previous doctor’s examination of Claimant on
September 18, 2012, wherein Claimant’s heel to toe walking was recorded as
normal.


             The WCJ rejected as less credible and persuasive, to the extent they
differed from those of Dr. Bennett, the testimony and opinions of Dr. Chawluk.
The WCJ found Claimant’s testimony credible in part, to the extent that she
described suffering a work injury and her subsequent treatment.          Claimant’s
testimony regarding continuing to suffer a work injury and related disability after
the IME performed by Dr. Bennett was rejected as not credible and not supported
by the accepted credible evidence of record.


             Based on all of the above, the WCJ found that Claimant had fully
recovered from her work injury effective March 14, 2013, at which time she was
able to return to work at her pre-injury job without restrictions. Because Employer



                                         7
carried its burden of proof, the WCJ granted the Petition and terminated Claimant’s
benefits.


                                             III.
              Claimant appealed to the Board arguing that the WCJ’s decision was
not reasoned. The Board held that the WCJ articulated an objective basis for his
credibility determinations as required by Daniels v. Workers’ Compensation
Appeal Board (Tristate Transport), 828 A.2d 1043 (Pa. 2003). As there was
substantial competent evidence to support a termination, the Board affirmed. This
appeal followed.3


                                              IV.
              The sole issue on appeal is Claimant’s claim that there is not
substantial evidence to support the WCJ’s determination that she had fully
recovered from her work injury. In a workers’ compensation case:

              [T]he employer bears the burden of proof in a
              termination proceeding to establish that the work injury
              has ceased. In a case where the claimant complains of
              continued pain, this burden is met when an employer’s
              medical expert unequivocally testifies that it is his

       3
          In a workers’ compensation proceeding, this Court’s scope of review is limited to
determining whether errors of law were committed, whether constitutional rights were violated,
and whether necessary findings of fact are supported by substantial evidence. Roundtree v.
Workers’ Compensation Appeal Board (City of Philadelphia), 116 A.3d 140, 143 n.4 (Pa.
Cmwlth. 2015). “Substantial evidence is such relevant evidence as a reasonable person might
accept as adequate to support a conclusion. . . . In performing a substantial evidence analysis,
this [C]ourt must view the evidence in a light most favorable to the party who prevailed before
the factfinder.” Waldameer Park, Inc. v. Workers’ Compensation Appeal Board (Morrison), 819
A.2d 164, 168 (Pa. Cmwlth. 2003) (citation omitted).



                                               8
             opinion, within a reasonable degree of medical certainty,
             that the claimant is fully recovered, can return to work
             without restrictions and that there are no objective
             medical findings which either substantiate the claims of
             pain or connect them to the work injury. If the WCJ
             credits this testimony, the termination of benefits is
             proper.


Udvari v. Workmen’s Compensation Appeal Board (USAir, Inc.), 705 A.2d 1290,
1293 (Pa. 1997).


             Here, Dr. Bennett testified within a reasonable degree of medical
certainty that Claimant had fully recovered from her work-related injury and could
return to work without restriction. Dr. Bennett further testified that the results of
Claimant’s physical evaluation were normal and that he found no objective criteria
to support Claimant’s continued complaints. The WCJ accepted the testimony and
opinions of Dr. Bennett as “credible, logical, internally consistent, and persuasive.”
(R.R. at 171a.) Dr. Bennett’s opinion that Claimant had fully recovered was
supported by his objectively normal physical examination findings and his review
of Claimant’s records and objective diagnostic study findings, as well as the
depiction of Claimant’s ambulation on the surveillance video. All of this amounts
to substantial evidence.


             Claimant argues that the WCJ arbitrarily and capriciously disregarded
the evidence of record because Dr. Chawluk’s testimony offered the most
substantial and credible evidence of Claimant’s work injury and continuing
symptoms. The WCJ did not disregard Dr. Chawluk’s testimony but instead found
Dr. Bennett more credible. As we have stated over and over and over again, “[t]he


                                          9
WCJ, as the ultimate fact-finder in workers’ compensation cases, ‘has exclusive
province over questions of credibility and evidentiary weight.’” A & J Builders,
Inc. v. Workers’ Compensation Appeal Board (Verdi), 78 A.3d 1233, 1238 (Pa.
Cmwlth. 2013) (quoting Anderson v. Workers’ Compensation Appeal Board (Penn
Center for Rehab), 15 A.3d 944, 949 (Pa. Cmwlth. 2010)). The WCJ is free to
accept or reject the testimony of any witness in whole or in part, including a
medical witness.       US Airways v. Workmen’s Compensation Appeal Board
(Johnston), 713 A.2d 1192, 1195 (Pa. Cmwlth. 1998). We are bound by these
credibility determinations and cannot overturn them on appeal. “Moreover, it is
irrelevant whether the record contains evidence to support findings other than those
made by the WCJ; the critical inquiry is whether there is evidence to support the
findings actually made.” A & J Builders, Inc., 78 A.3d at 1238. There is ample
evidence in the record to support the WCJ’s finding that Claimant had fully
recovered from her work injury, and we discern no error in the granting of
Employer’s Petition.


            Accordingly, the Board’s order is affirmed.




                                             DAN PELLEGRINI, Senior Judge




                                        10
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Alisha Edwards,                     :
                   Petitioner       :
                                    :
             v.                     :
                                    :
Workers’ Compensation Appeal        :
Board (Charles and Arlene Felty and :
Harleysville Insurance Company),    :
                   Respondents      : No. 2612 C.D. 2015




                                 ORDER


             AND NOW, this 14th day of July, 2016, the Order of the Workers’
Compensation Appeal Board dated November 20, 2015, at No. A14-1208, is
affirmed.




                                         DAN PELLEGRINI, Senior Judge
