             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Felton Robinson,                     :
                      Petitioner     :
                                     :
            v.                       :              No. 858 C.D. 2019
                                     :              Submitted: November 22, 2019
Workers’ Compensation Appeal         :
Board (Liberty Management Services), :
                      Respondent :

BEFORE:         HONORABLE MARY HANNAH LEAVITT, President Judge
                HONORABLE ANNE E. COVEY, Judge
                HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                             FILED: May 1, 2020

                Felton Robinson (Claimant) petitions for review of an adjudication of
the Workers’ Compensation Appeal Board (Board) that granted Claimant’s claim
petition for benefits under the Workers’ Compensation Act (Act)1 for the closed
period of August 23, 2013, until April 17, 2014. In doing so, the Board affirmed the
decision of the Workers’ Compensation Judge (WCJ) that Claimant fully recovered
as of April 17, 2014, and terminated his benefits as of that date. Discerning no error,
we affirm the Board.
                Claimant worked for Liberty Management Services, Inc. (Employer) as
a maintenance worker. On September 24, 2013, Claimant filed a claim petition
alleging that he suffered “lumbar [and] spinal injuries[] and aggravations of prior
condition” as a result of “lifting [and] moving boxes, beds, lockers, etc.” at work on
August 16, 2013. Certified Record (C.R.), Item 2, at 1. Claimant sought total


1
    Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1–1041.4, 2501–2710.
disability benefits, and Employer filed an answer denying the allegations. The
matter was assigned to a WCJ.
             Claimant testified in person on December 20, 2013. He stated that he
performed minor repairs for a halfway house that Employer manages, including
patching walls and replacing tiles. On August 16, 2013, while at work, he was asked
to unload boxes weighing 50 to 60 pounds from a delivery truck and then move steel
lockers and beds weighing 25 to 50 pounds. As a result, Claimant developed pain
in his spine, and his lower back “seemed to stiffen up.” Notes of Testimony (N.T.),
12/20/2013, at 21; C.R. Item 24. He also had pain in his right hip, right upper
shoulder and neck. Claimant had preexisting “back problems” due to a car accident.
N.T. 20. However, he “wasn’t really having a problem” until he started moving
those items on August 16, 2013. N.T. 20-21.
             Claimant stopped working on August 23, 2013. Claimant was later
terminated for violating Employer’s drug policy. He applied for and was granted
unemployment compensation benefits following his termination.
             Claimant presented the deposition testimony of George Rodriguez,
M.D., who is board certified in physical medicine and rehabilitation and has been
Claimant’s treating physician for his work injury of August 16, 2013. Dr. Rodriguez
diagnosed Claimant with exacerbation of preexisting: cervical strain and sprain;
herniation of the cervical spine at multiple levels; and lumbosacral strain and sprain.
He also diagnosed new herniations at L2-3 and L3-4 levels. Dr. Rodriguez found
lumbosacral radiculopathy at levels of L-4, L-5, and S-1, which was preexisting and
aggravated, a protruding disc at T1-2, and radiculopathy co-incidentally and
bilaterally at C-5, C-6, and C-7. Dr. Rodriguez opined that the August 16, 2013,
work injury aggravated Claimant’s preexisting injuries and disabled him from his



                                          2
job as a maintenance worker. Dr. Rodriguez testified that he is familiar with
Claimant’s preexisting conditions because he treated him for those injuries.
            In opposition to Claimant’s claim petition, Employer presented, inter
alia, the deposition testimony of Scott Epstein, M.D., who is board certified in
physical medicine and rehabilitation, as well as in electrodiagnostic medicine. Dr.
Epstein performed an independent medical evaluation (IME) on Claimant on April
17, 2014, and issued a report. He took a history of Claimant’s August 16, 2013,
work injury. Claimant declined to complete the IME questionnaires and did not
explain his medications and prior low-back injuries.
            Dr. Epstein testified that he reviewed Claimant’s medical records from
Byrne L. Solberg, M.D., dated September 9, 2013, who performed two
electromyographies (EMG) on Claimant. Dr. Solberg’s records also documented
Claimant’s two prior back injuries in 1999 and 2004 and the diagnoses. Dr. Epstein
reviewed the two EMG reports dated October 30, 2013, and November 6, 2013, and
two magnetic resonance imaging (MRI) reports of Claimant’s lumbar spine and
cervical spine, performed on September 16, 2013, and October 1, 2013. Dr. Epstein
also reviewed Dr. Rodriguez’s medical records.
            Based upon review of these medical records, Dr. Epstein noted that
Claimant had disc protrusions at C4-5, C5-6, and C6-7, an annular tear at L3-4, a
disc bulge at L2-3, and radiculopathy at C-5, C-6, and C-7.            The lumbar
radiculopathy and disc protrusions preexisted the August 16, 2013, work injury.
However, on physical examination, Dr. Epstein found no evidence of cervical
radiculopathy or cervical disc protrusion. Claimant had “normal strength, though he
had some giveaway feigning weakness in his tricep.” N.T., 7/24/2014, at 27; C.R.




                                         3
Item 38. Likewise, Dr. Epstein found no evidence of an active disc bulge, annular
tear or radiculopathy in Claimant’s lumbar spine on examination.
               Claimant rated his back and neck pain as “ten out of ten,” N.T.,
7/24/2014, at 14, but Dr. Epstein found that this complaint had no objective
correlation on examination. A musculoskeletal exam revealed no atrophy. A Jamar
dynamometer test revealed inconsistent or invalid efforts. Claimant’s neck and back
ranges of motion were limited by subjective complaints of pain, but without
radiation of symptoms. There was tenderness to very light palpation throughout
Claimant’s back and neck. There was some lumbar muscle tightness, but none in
the cervical or thoracic spine. Dr. Epstein opined that Claimant had fully recovered
from the work injury and was capable of returning to his pre-injury job without
restriction.
               The WCJ credited Claimant’s testimony with respect to the August 16,
2013, work injury and his need for treatment as of December 20, 2013, the date he
testified in person before the WCJ. The WCJ also credited Claimant’s testimony
regarding the extent of his disability following the work injury, but only “as it
comports with the testimony of Dr. Epstein.” WCJ Decision, 10/1/2015, at 9,
Findings of Fact No. 8; C.R. Item 5. The WCJ explained that his credibility
determination was based, in part, on his “personal viewing of Claimant’s demeanor
and comportment while testifying live.” Id.
               The WCJ also credited Dr. Epstein’s testimony over Dr. Rodriguez’s.
He found that Dr. Epstein’s testimony regarding the relationship between the work
incident and Claimant’s complaints and disability was “cogent, clear and
convincing.” Id. at 9, Finding of Fact No. 9. Further, Dr. Epstein’s opinion was
supported by Claimant’s medical records. Dr. Epstein pointed out that Claimant’s



                                          4
“unreliable presentation” was not clinically correlated to the diagnostic testing
performed on examination. Id. The WCJ discredited Dr. Rodriguez’s testimony
where it conflicted with Dr. Epstein’s, noting that while Dr. Rodriguez was “quick
to note the new diagnostic findings,” he “pushed aside and ignored” Claimant’s
preexisting positive diagnostic findings. Id.
              The WCJ granted Claimant’s claim petition for the closed period from
August 23, 2013, to April 17, 2014, and terminated his benefits thereafter based on
a finding of a full recovery.
              Both parties appealed to the Board challenging, inter alia, the WCJ’s
credibility determinations and weighing of evidence. The Board affirmed the WCJ’s
decision to grant Claimant’s claim petition for a closed period, holding that the WCJ
provided reasonable explanations for his credibility determinations and “his ultimate
view of the evidence as a whole.” Board Adjudication, 9/27/2016, at 15; C.R. Item
12. The Board modified the WCJ’s order to reflect Employer’s entitlement to a
credit for unemployment compensation received by Claimant during the period in
which he was also eligible for workers’ compensation disability benefits, and
remanded for further proceedings limited to determining Claimant’s average weekly
wage. On September 6, 2018, the WCJ again granted Claimant’s claim petition in
part and found that Claimant’s average weekly wage was $442.24, with a
compensation rate of $398.01. Claimant appealed to the Board and sought issuance
of an order making the September 27, 2016, Board order final; the Board did so on
July 2, 2019.      Claimant now petitions this Court for review of the Board’s
adjudication.2

2
  This Court’s review of an order of the Board determines whether the necessary findings of fact
are supported by substantial evidence, whether Board procedures were violated, whether
constitutional rights were violated, or whether an error of law was committed. Cytemp Specialty


                                               5
             On appeal, Claimant argues that the WCJ’s findings of fact are not
supported by substantial evidence. The WCJ found that Dr. Epstein reviewed
Claimant’s “records of prior injuries,” WCJ Decision, 10/1/2015, at 4, Finding of
Fact No. 4(d), but Dr. Epstein testified that he did not do so. The WCJ found no
objective evidence of an injury, but the MRI showed an annular tear. Finally, the
WCJ found Claimant fully recovered, but Dr. Epstein testified only that Claimant
reached maximum medical improvement.
             In a claim petition proceeding, it is the claimant’s burden to establish
all the necessary elements to support an award. The claimant not only must prove
that he has sustained a compensable injury but also that the injury continues to cause
disability throughout the pendency of the claim petition proceeding. Milner v.
Workers’ Compensation Appeal Board (Main Line Endoscopy Center), 995 A.2d
492, 496 (Pa. Cmwlth. 2010).
             In a workers’ compensation proceeding, the WCJ is the ultimate fact-
finder and, in that role, is free to accept or reject the testimony of any witness,
including a medical witness, in whole or in part. Wieczorkowski v. Workers’
Compensation Appeal Board (LTV Steel), 871 A.2d 884, 889-90 (Pa. Cmwlth.
2005). This Court cannot reweigh the evidence or substitute its judgment for the
credibility determinations of the WCJ. Id. at 890.
             Here, the WCJ detailed his reasons for crediting Dr. Epstein’s
testimony over that of Dr. Rodriguez and, based upon Dr. Epstein’s testimony,
concluded that Claimant had fully recovered from his work-related injury. Dr.
Epstein testified that his examination of Claimant showed no evidence of cervical
radiculopathy or cervical disc protrusion. He also found no evidence of an active

Steel v. Workers’ Compensation Appeal Board (Crisman), 39 A.3d 1028, 1033 n.6 (Pa. Cmwlth.
2012).


                                            6
disc bulge, annular tear or radiculopathy in Claimant’s lumbar spine. Dr. Epstein
testified that Claimant had “normal strength, though he had some giveaway feigning
weakness in his tricep.” N.T., 7/24/2014, at 27. The WCJ credited Claimant’s
testimony regarding the extent of his disability following the work injury, but only
“as it comports with the testimony of Dr. Epstein.” WCJ Decision, 10/1/2015, at 9,
Finding of Fact No. 8. The WCJ explained that his determination was based upon
his “personal viewing of Claimant’s demeanor and comportment while testifying
live.” Id.
             Claimant argues that substantial evidence does not support the WCJ’s
finding that Dr. Epstein reviewed Claimant’s “records of prior injuries.” WCJ
Decision, 10/1/2015, at 6, Finding of Fact No. 4(d). Claimant explains that Dr.
Epstein testified that he did not see “records that predated the [August 16, 2013,]
incident.” N.T., 7/24/2014, at 33. We reject Claimant’s argument. Dr. Epstein
testified that he reviewed Dr. Solberg’s medical notes of September 9, 2013, which
documented Claimant’s two prior back injuries in 1999 and 2004:

             [Counsel]: Can you tell the Judge what the important medical
             records were for you in this particular case?

             [Epstein]: Records from Dr. Solberg, who’s a doctor, ended up
             doing two EMGs on [Claimant], indicated that there were two
             prior work injuries with regards to [Claimant’s] back. The first
             was in 1999, resulting in an L4-5 disc bulge that was
             exacerbated. There was radiculopathy of the L4, L5 and S1
             nerve roots. A sprain and strain of the gluteus maximus muscle
             in his buttocks as well the iliotibial tract, which is a muscle
             tendon group on the outside of the thigh, and an ankle sprain and
             strain.

             There was also a history of a motor vehicle accident from 2004
             with diagnoses of a disc herniation L5-S1, an aggravation of the



                                         7
            lumbar and sacral radiculopathies, trapezius sprain and strain and
            a lumbosacral sprain and strain.

N.T. 17-18. As can be seen from this testimony of Dr. Epstein, he reviewed the
diagnoses of Claimant’s back injuries that predated the incident of August 16, 2013.
            Claimant also challenges the WCJ’s finding that his work-related
diagnoses were not “clinically evident.” WCJ Decision, 10/1/2015, at 7, Finding of
Fact No. 4(i). Claimant points out that Dr. Epstein acknowledged that Claimant’s
lumbar MRI report showed an annular tear but then testified that Claimant’s clinical
examination did not indicate a tear. Relatedly, Claimant argues that Dr. Epstein
testified that Claimant had reached maximum medical improvement but not a full
recovery. In support, Claimant cites the following deposition testimony:

            [Counsel]: Now, in the summary of findings, which is marked C-
            Epstein One, you say the primary diagnosis is a L2-3 bulge, an
            L3-4 tear, cervical disc protrusions and cervical radiculopathy;
            correct?

            [Epstein]: Yes. Excuse me. Yes.

            [Counsel]: All right. And you say causality, the diagnosis is
            related to the accident in question; correct?

            [Epstein]: Correct.

            [Counsel]: And then you say [Claimant] has reached maximum
            medical improvement and you write yes; correct?

            [Epstein]: Yes.

            [Counsel]: On this document, you don’t say he was recovered
            from the L2-3 disc bulge; do you?

            [Epstein]: I do not.

            [Counsel]: On this document, you don’t say he recovered from
            the L3-4 annular tear; do you?


                                         8
            [Epstein]: I don’t.

            [Counsel]: On this document, you don’t say he recovered from []
            the C5, C6, C7 radiculopathy bilateral; correct?

            [Epstein]: Correct.

            [Counsel]: On this document, you don’t say [Claimant]
            recovered from the C4-5, C5-6, C6-7 disc protrusions; correct?

            [Epstein]: Correct.

            [Counsel]: You say he just reached maximum medical
            improvement; correct?

            [Epstein]: Correct.

            [Counsel]: And that’s because he reached maximum medical
            improvement; correct?

            [Epstein]: He reached maximum medical improvement and he
            achieved a full and complete recovery.

N.T., 7/24/2014, at 40-41 (emphasis added).
            The record does not support Claimant’s arguments. The lumbar MRI
was performed on September 6, 2013, and the IME was performed on April 17,
2014. Dr. Epstein acknowledged that Claimant’s work-related injuries included disc
protrusions, an annular tear, and radiculopathy. However, his diagnostic testing
during the IME revealed no evidence of an annular tear. Dr. Epstein opined that
Claimant had recovered from the annular tear with physical therapy.           N.T.,
7/24/2014, at 35. Likewise, Dr. Epstein testified that Claimant had recovered from
other work-related injuries including radiculopathy or disc protrusion, because the
IME did not indicate that those conditions were present.
            Claimant argues that Dr. Epstein’s summary of findings supports his
contention that Dr. Epstein opined only to maximum medical improvement. The


                                         9
summary of findings is a form with preprinted questions to be answered by
physicians, one being whether “[t]he examinee has reached maximum medical
improvement.” C.R. Item 38, Exhibit C-Epstein-1. Dr. Epstein circled “Yes” among
“Yes,” “No,” and “Unknown.” Id. This form is not conclusive. Dr. Epstein testified
unequivocally that Claimant “reached maximum medical improvement and he
achieved a full and complete recovery.” N.T., 7/24/2014, at 41 (emphasis added).
             When both parties present evidence, it does not matter that there is
evidence in the record that supports a factual finding contrary to that made by the
WCJ; rather, the critical inquiry is whether there is evidence to support the findings
actually made. Edwards v. Workers’ Compensation Appeal Board (Epicure Home
Care, Inc.), 134 A.3d 1156, 1161 (Pa. Cmwlth. 2016). The WCJ’s finding that
Claimant had recovered from the work injury was supported by the credible
testimony of Dr. Epstein. Thus, this Court cannot disturb that finding.
             For all of the foregoing reasons, we conclude that the WCJ’s decision
is reasoned and supported by substantial evidence. Accordingly, we affirm the
Board’s adjudication.
                                    _____________________________________
                                    MARY HANNAH LEAVITT, President Judge




                                         10
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Felton Robinson,                     :
                      Petitioner     :
                                     :
            v.                       :   No. 858 C.D. 2019
                                     :
Workers’ Compensation Appeal         :
Board (Liberty Management Services), :
                      Respondent :


                                ORDER

           AND NOW, this 1st day of May, 2020, the September 27, 2016, order
of the Workers’ Compensation Appeal Board, in the above-captioned matter, is
AFFIRMED.
                               _____________________________________
                               MARY HANNAH LEAVITT, President Judge
