              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Courtney Cannon,                           :
                              Petitioner   :
                                           :
                      v.                   :
                                           :
Workers’ Compensation Appeal               :
Board (General Motors),                    :   No. 1168 C.D. 2017
                        Respondent         :   Submitted: February 2, 2018


BEFORE:     HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                    FILED: July 17, 2018

            Courtney Cannon (Claimant) petitions this Court for review of the
portion of the Workers’ Compensation (WC) Appeal Board’s (Board) July 26, 2017
order reversing Workers’ Compensation Judge Joseph McManus’ (WCJ McManus)
decision granting Claimant’s Petition to Reinstate Compensation Benefits
(Reinstatement Petition). The sole issue before this Court is whether the Board erred
by reversing WCJ McManus’ decision granting Claimant’s Reinstatement Petition by
applying the wrong burden of proof and disregarding WCJ McManus’ credibility
determinations. After review, we affirm.
            On February 21, 2014, Claimant filed a claim petition (Claim Petition),
and a penalty petition for General Motors’ (Employer) failure to issue a Notice of
Compensation Denial, a Notice of Temporary Compensation Payable or a Notice of
Compensation Payable (NCP) within 21 days of her May 17, 2013 work injury
(Penalty Petition).        On March 21, 2014, Employer issued a medical-only NCP
accepting Claimant’s May 17, 2013 work injuries described as a right thigh
contusion, a left elbow contusion/abrasion, and cervical, lumbar and left shoulder
strain/sprain. On May 4, 2015, WCJ Bonnie Callahan (WCJ Callahan) granted the
Penalty Petition and granted the Claim Petition in part, finding that Claimant
sustained injuries on May 17, 2013 in the nature of a right thigh contusion, a left
elbow abrasion, left shoulder, cervical, and lumbar strain and sprain, and a left rotator
cuff tendinitis. However, WCJ Callahan determined that Claimant did not meet her
burden of proving she was entitled to wage loss benefits after January 30, 2014, and
suspended Claimant’s benefits effective January 30, 2014. Employer appealed to the
Board, which affirmed WCJ Callahan’s decision on March 8, 2016.
              On August 28, 2015, Employer filed a Petition to Terminate
Compensation Benefits (Termination Petition) alleging that, as of August 12, 2015,
Claimant completely recovered from the work-related injury and all residuals
therefrom, and was not in need of any ongoing medical treatment. Claimant denied
Employer’s allegations.        On January 7, 2016, Claimant filed the Reinstatement
Petition alleging that, as of February 6, 2014,1 her condition worsened, resulting in
Claimant’s decreased earning power. Employer denied Claimant’s allegations. WCJ
McManus held hearings on September 14, 2015, and February 28 and March 16,
2016. On September 16, 2016, WCJ McManus denied the Termination Petition and
granted the Reinstatement Petition, reinstating Claimant’s WC benefits as of
December 10, 2015. Employer appealed to the Board. On July 26, 2017, the Board
affirmed WCJ McManus’ decision denying Employer’s Termination Petition, but
reversed WCJ McManus’ decision granting Claimant’s Reinstatement Petition.
Claimant appealed to this Court.2

       1
        At the March 16, 2016 WCJ hearing, this date was amended to December 10, 2015.
       2
        “On review[,] this Court must determine whether constitutional rights were violated, errors
of law were committed, or necessary findings of fact were supported by substantial competent
evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d 598, 601 n.6
(Pa. Cmwlth. 2014).
                                                2
               Claimant argues that the Board erred when it applied the burden of proof
for reinstatement after a termination of WC benefits, as opposed to the burden of
proof for reinstatement after a suspension of WC benefits. Claimant specifically
contends that her burden is to show her earning power is once again adversely
affected by her disability, not to show a change, increase or recurrence in her
condition.
               The law is well-settled:

               A claimant seeking reinstatement of suspended benefits
               must prove that his or her earning power is once again
               adversely affected by his or her disability, and that such
               disability is a continuation of that which arose from his
               or her original claim. The claimant need not re-prove that
               the disability resulted from a work-related injury during his
               or her original employment. Once the claimant meets this
               burden, the burden then shifts to the party opposing the
               reinstatement petition. In order to prevail, the opposing
               party must show that the claimant’s loss in earnings is not
               caused by the disability arising from the work-related
               injury. This burden may be met by showing that the
               claimant’s loss of earnings is, in fact, caused by the
               claimant’s bad faith rejection of available work within the
               relevant required medical restrictions or by some
               circumstance barring receipt of benefits that is specifically
               described under provisions of the [WC] Act [(Act)3] or in
               this Court’s decisional law.

Bufford v. Workers’ Comp. Appeal Bd. (N. Am. Telecom), 2 A.3d 548, 558 (Pa. 2010)
(emphasis added). The Board recognized the above-quoted law when it stated: “An
employee seeking reinstatement following a suspension of benefits must prove that
(1) through no fault of his or her own, the employee’s disability, i.e., earning power,
is again adversely affected by the work-related injury, and (2) the disability that gave
rise to the original claim continues.” Board Op. at 2.


      3
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.


                                                 3
            However, in this case, Claimant alleged in her Reinstatement Petition as
her “Selected Reasons [Claimant] requests the [WCJ] to order the above selected
actions: Worsening of Condition [-] Injury Causing Decreased Earning Power.”
Original Record Item 5. In response to Claimant’s assertion, the Board opined:

            It was Claimant’s burden to establish (1) that disability has
            increased or recurred after the date of the prior award, and
            (2) proof that her physical condition has actually changed in
            some manner. Pieper [v. Ametek-Thermox Instruments
            Div., 584 A.2d 301 (Pa. 1990)]. Although Claimant
            asserted her symptoms had worsened and her condition
            had deteriorated, Claimant described no symptoms
            other than those she had at the time WCJ Callahan
            found she was not disabled from her May 17, 201[3]
            work injury and suspended her benefits. As such,
            Claimant failed to meet her burden, therefore, [WCJ
            McManus] erred in granting the Reinstatement Petition and
            we shall reverse.

Board Op. at 8 (emphasis added). Because Claimant advanced the worsening of her
condition as her reason for reinstatement of WC benefits, the Board properly
considered it in making its determination. Accordingly, the Board did not err.
            Claimant also asserts that the Board disregarded WCJ McManus’
credibility determinations. Claimant contends the Board determined that, because
WCJ Callahan found Claimant not credible with respect to certain testimony, WCJ
McManus was prohibited from finding Claimant credible.
            Specifically, the Board expounded:

            Based upon the testimony of Claimant and [Thomas J.
            Mercora, D.O. (]Dr. Mercora[)], we determine that [WCJ
            McManus] erred in granting Claimant’s Reinstatement
            Petition. We cannot determine that either described a
            specific time or reason for a change in Claimant’s
            condition. The symptoms she complained of as of
            December 8, 2014, at the final hearing before WCJ
            Callahan, are the exact same symptoms she is complaining
            of currently, and in the prior litigation, WCJ Callahan
            found her not credible that she was disabled from
                                          4
             working. WCJ Callahan noted that Claimant continued
             to work full duty following the work injury, despite her
             assertions that her symptoms were ‘horrific.’ Further, in
             the present matter, Claimant testified that all of her
             symptoms and injuries have been present since May 17,
             2013. She also acknowledged her treatment with [Charles
             Avetian, D.O. (]Dr. Avetian[)] has decreased since
             February 2016. At the [independent medical evaluation
             (IME)] on August 12, 2015, Claimant did not tell [Marc
             Manzione, M.D.] that her condition had worsened, although
             she asserted her symptoms became worse in late summer of
             2015. Similarly, at the time of her deposition on October
             19, 2015, Claimant did not assert her condition had
             worsened, nor did she indicate she was dissatisfied with her
             treatment with Dr. Avetian and intended to seek a second
             opinion. To the contrary, she testified that she had looked
             for work, and continued to treat with Dr. Avetian, which
             she had done since the time she was fired from her job by
             [Employer]. The WCJ erred by not addressing these
             major inconsistencies in finding Claimant credible.

Board Op. at 7-8 (bold and italic emphasis added). This Court recognizes the well-
established law that “[t]he WCJ is the ultimate factfinder and has exclusive province
over questions of credibility and evidentiary weight.” Univ. of Pa. v. Workers’
Comp. Appeal Bd. (Hicks), 16 A.3d 1225, 1229 n.8 (Pa. Cmwlth. 2011). “The WCJ,
therefore, is free to accept or reject, in whole or in part, the testimony of any witness,
including medical witnesses.” Griffiths v. Workers’ Comp. Appeal Bd. (Red Lobster),
760 A.2d 72, 76 (Pa. Cmwlth. 2000). Neither the Board nor the Court may reweigh
the evidence or the WCJ’s credibility determinations. Sell v. Workers’ Comp. Appeal
Bd. (LNP Eng’g), 771 A.2d 1246 (Pa. 2001).
             Notwithstanding, the only record evidence regarding the specific time or
reason for a change in Claimant’s condition included: (1) Dr. Mercora’s testimony
that Claimant’s “condition worsened to the point she could not work anymore” as of
the date of his examination, December 10, 2015, although he believed there was a
point before that “where she could not have worked[,]” Reproduced Record (R.R.) at


                                            5
127a, and (2) Claimant’s testimony that she used to have good days and bad days but,
starting “towards the end of the summer” of 2015, they were all “bad days.” R.R. at
79a. Claimant further related that her symptoms have “gotten worse” since May
2013. R.R. at 81a. Finally, Claimant reiterated that as of the date of her testimony,
March 16, 2016, she could not “return to any employment[.]” R.R. at 83a. This
Court finds this testimony insufficient, in light of the record in this case, to meet
Claimant’s burden. Although Claimant contended that her physical condition had
actually changed at some point in time since January 31, 2014, resulting in an adverse
effect on her earning power, neither Claimant nor Dr. Mercora’s testimony supports
that assertion; thus, the Board properly reversed the WCJ’s decision.
             For all of the above reasons, the Board’s order is affirmed.


                                       ___________________________
                                       ANNE E. COVEY, Judge



Judge Fizzano Cannon did not participate in the decision in this case.




                                           6
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Courtney Cannon,                        :
                         Petitioner     :
                                        :
                   v.                   :
                                        :
Workers’ Compensation Appeal            :
Board (General Motors),                 :   No. 1168 C.D. 2017
                        Respondent      :


                                      ORDER

            AND NOW, this 17th day of July, 2018, the Workers’ Compensation
Appeal Board’s July 26, 2017 order is affirmed.


                                      ___________________________
                                      ANNE E. COVEY, Judge
