        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Heartland Employment Services, LLC, :
                       Petitioner   :
                                    :
            v.                      :      No. 1137 C.D. 2018
                                    :      Submitted: January 4, 2019
Workers' Compensation Appeal        :
Board (Toth),                       :
                       Respondent :

BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE ROBERT SIMPSON, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                        FILED: February 14, 2019

            Heartland Employment Services, LLC (Employer) asks whether the
Workers’ Compensation Appeal Board (Board) erred in affirming an order of a
Workers’ Compensation Judge (WCJ) that granted George Toth’s (Claimant) claim
petition seeking ongoing indemnity benefits.     Employer asserts the workers’
compensation authorities erred in granting Claimant’s claim petition and awarding
indemnity benefits because they applied the incorrect burden of proof and because
the record lacks substantial, competent evidence to support a determination that
Claimant sustained a work-related disability. Upon review, we affirm.


                                 I. Background
            In October 2014, Employer issued a medical-only notice of temporary
compensation payable (NTCP) for a low back strain Claimant suffered in
September 2014. Two months later, Employer issued a medical-only notice of
compensation payable (NCP).
               About six months later, Claimant filed a claim petition alleging he
suffered a low back injury in September 2014. Claimant alleged that he stopped
working on December 5, 2014. He sought ongoing total indemnity benefits from
that date forward. Employer filed an answer in which it denied the material
allegations.1 Hearings ensued before a WCJ.


               Before the WCJ, Claimant, a registered nurse (RN), testified he
worked for Employer as an RN Supervisor in a long-term care, short-term care and
rehabilitation facility. His position included lifting patients who weighed between
90 and 350 pounds, with assistance. In September 2014, Claimant caught a patient
who began to fall, and he suffered a low back injury. Claimant indicated he “felt
something pop” and began to experience pain in his low back about an hour after
the incident. WCJ’s Op., 9/5/17, Findings of Fact (F.F.) No. 3(a). He reported his
injury and sought medical treatment. Claimant subsequently returned to light duty
work.       In November 2014, while passing medication and leaning on a cart,
Claimant “felt another pop in his back” and experienced severe pain in his low
back, which resulted in an emergency room visit that evening. Id.


               Claimant testified he continued to work in his light duty position,
which required him to constantly bend and manually lift. In December 2014,
Claimant again experienced severe back pain and was required to return to the
emergency room. Claimant was then referred to pain management. Claimant
indicated he informed Employer’s scheduler that he would be off work until he
        1
         Employer also filed a termination petition, alleging Claimant fully recovered from his
work injury, which was ultimately denied. Employer does not challenge the denial of its
termination petition in this appeal.



                                              2
was seen by a pain management physician. Claimant was removed from the
schedule; he subsequently received a notice from Employer terminating his
employment for a “no call [off]-no show” as of December 8, 2014. F.F. No. 3(b).


                Claimant later began obtaining pain management care. At the time of
his testimony in September 2015, Claimant used pain medication and was
considering a pain stimulator. He did not believe he could return to work.2


                Claimant again testified before the WCJ in April 2016. At that time,
he indicated he was treating with Daniel Altman, M.D., a board-certified
orthopedic surgeon (Claimant’s Orthopedist).                 Claimant stated it was
recommended that he have a pain stimulator implanted for pain management. He
also indicated he received Morphine three times daily. Additionally, Claimant
underwent physical therapy, and he received a back brace. He testified the overall
condition of his back worsened since his prior testimony. Claimant did not feel
capable of returning to his time of injury employment.


                Claimant testified before the WCJ a third time in April 2017. At that
time, he denied a recent history of preexisting back pain. Claimant did have a prior
history of back problems and was off work for approximately three months in
1993.       He agreed that he previously received Vicoprofen and Neurontin for
complaints of bilateral hip pain and leg cramps and because of numbness, tingling,
and pain in his lower leg. Claimant stated that his family physician referred him to

        2
            Claimant also indicated he received $894 in biweekly unemployment compensation
benefits.



                                              3
a rheumatologist, and this condition improved since June 2014. Claimant further
explained this condition was different from the pain caused by the work injury.
The work injury caused severe lower lumbar pain radiating down his right leg and
into his mid-thigh as well as into his left leg on rare occasions. Claimant testified
that, since his prior testimony, he had a spinal cord stimulator implanted, which
improved his overall condition. However, more recently, his pain level increased.


             In support of his claim petition, Claimant presented the deposition
testimony of his Orthopedist, who initially examined Claimant in December 2015.
Based on his examination, Claimant’s history, and a review of numerous
diagnostic tests, Claimant’s Orthopedist diagnosed L4-5 spondylolisthesis. He
noted Claimant’s most recent MRI revealed narrowing and stenosis at L4-5.
Further, Claimant underwent an EMG study that showed evidence of a right S1
nerve root irritation or radiculopathy.    Claimant’s Orthopedist opined that his
physical examination was consistent with the findings on diagnostic tests.


             Claimant’s Orthopedist next examined Claimant three months later.
He noted Claimant underwent additional therapy without improvement. He also
recommended Claimant undergo a CT myelogram, a more extensive test. The CT
myelogram revealed a right paracentral disc protrusion at L5-S1 with
encroachment of the right S1 nerve root. It also revealed retrolisthesis of the L2 on
L3 vertebrae.    Claimant’s Orthopedist reviewed Claimant’s pain management
records as well as at least two of Claimant’s most recent MRI films and the CT
myelogram. Claimant’s Orthopedist indicated his review of Claimant’s medical
records and diagnostic tests were consistent with his opinions. He noted that



                                          4
several physicians indicated Claimant had back pain and right leg radiculopathy
after the work injury. Claimant’s Orthopedist found no history that Claimant had
any significant back pain or radiculopathy prior to his September 2014 work
injury.


            On     cross-examination,    Claimant’s    Orthopedist    agreed    that
spondylolisthesis was a degenerative condition, but he stated it can be aggravated.
Claimant’s Orthopedist further indicated he did not find it surprising that Claimant
had a preexisting history of tingling in his bilateral lower extremities because
Claimant had a history of diabetes. He also stated it was not surprising that
Claimant subsequently experienced popping in his back and increased low back
pain after the work injury with the underlying radiculopathy and spondylolisthesis.
Claimant’s Orthopedist opined Claimant was unable to return to his time of injury
position. He deferred to a rehabilitation physician for a full, formal assessment of
any modified work capabilities.


            Claimant also presented the deposition testimony of Maryanne
Henderson, D.O., a board-certified physical medicine and rehabilitation physician
(Claimant’s Physiatrist). Claimant’s Physiatrist initially examined Claimant in
October 2015. In addition to her physical examination, Claimant’s Physiatrist
reviewed numerous records and reports regarding Claimant’s treatment, including
an EMG study and a report of a CT myelogram. Claimant’s Physiatrist indicated
that, at the time of Claimant’s initial examination, he provided a history of the
onset of low back pain in September 2014 while at work. He also complained of
pain radiating down his right leg. Claimant’s Physiatrist indicated Claimant



                                         5
underwent an EMG study that revealed right S1 level radiculopathy. An MRI
performed in June 2015 revealed a small midline herniation at L4-5. Claimant’s
Physiatrist diagnosed low back pain with S1 radiculopathy as a result of the
September 2014 work injury. She opined Claimant was disabled from his time of
injury position.


             In opposition, Employer presented the deposition testimony of
William J. Bookwalter, M.D. (Employer’s Physician), who performed an
independent medical examination of Claimant in August 2015. Based on his
examination, Claimant’s history, and his review of medical records, Employer’s
Physician opined Claimant suffered a lumbar strain as a result of the work incident.
He further opined Claimant fully recovered from that injury as of the time of his
examination.       Employer’s Physician disagreed with Claimant’s Orthopedist’s
opinion that Claimant suffered L4-5 spondylolisthesis.


             Ultimately, the WCJ made the following dispositive findings (with
emphasis added):

             a. [Claimant] sustained an injury in the course of his
             employment on September 14, 2014, in the nature of low
             back pain with resulting right leg radiculopathy.
             Claimant has not fully recovered from said work injury.
             In so concluding, this Judge accepts as credible the
             testimony of [Claimant] and the opinions of [Claimant’s
             Orthopedist and Claimant’s Physiatrist];

             b. In finding the testimony of [Claimant] to be credible
             and persuasive, this Judge notes she was able to
             personally observe his demeanor on multiple occasions.
             Furthermore, this Judge finds his testimony to be
             internally consistent and straightforward.      Finally,


                                         6
Claimant’s testimony regarding his continued complaints
after the work injury are supported by the medical
opinions of [Claimant’s Orthopedist and Claimant’s
Physiatrist], whom this Judge also finds as credible;

c. This Judge finds the opinions of [Claimant’s
Orthopedist and Claimant’s Physiatrist] to be more
credible and persuasive than those of [Employer’s
Physician]. In so concluding, this Judge initially notes
that both [Claimant’s Orthopedist and Claimant’s
Physiatrist] have examined Claimant on multiple
occasions.      Both physicians provided logical and
concrete explanations as to why they concluded the work
injury was the cause of Claimant’s right leg
radiculopathy. In particular, this Judge notes [Claimant’s
Orthopedist and Claimant’s Physiatrist’s] emphasis on
Claimant’s objective diagnostic tests specifically the CT
myelogram and the EMG which support their finding of
radiculopathy. This Judge also specifically notes that
[Claimant’s Orthopedist] indicated that his review of the
EMG did not reveal any evidence of diabetic myelopathy
but did reveal right-sided radiculopathy. Additionally,
his review of the CT myelogram revealed an
encroachment of the right S1 nerve root. Therefore,
wherever the opinions of [Employer’s Physician]
conflicts [sic] with those of [Claimant’s Orthopedist and
Claimant’s Physiatrist], his opinions are rejected;

d. This Judge finds Claimant was totally disabled from
his time of injury position at the time of his termination.
This Judge finds Claimant’s testimony credible that he
had returned to modified work, had an increase in pain
due to the work injury where he sought treatment at the
[emergency room] and was told to remain off work until
he was able to secure treatment through pain
management. Claimant indicated he made [Employer]
aware of his circumstances and he was taken off the
schedule and thereafter terminated for a no call off/no
show. Employer presented no evidence to contradict
Claimant’s testimony that he notified Employer that he
would not be reporting to work due to the work injury.
This Judge finds said termination without cause.
Consequently, this Judge finds there was no modified

                            7
             work made available to Claimant after his termination on
             December 8, 2014. Consequently, this Judge finds
             Claimant is entitled to total disability benefits beginning
             December 8, 2014 and continuing into the future.

F.F. Nos. 7(a)-(d).


             Based on these findings, the WCJ granted Claimant’s claim petition,
concluding Claimant established he sustained low back pain with right-side S1
radiculopathy as a result of the September 2014 work injury. The WCJ further
determined Claimant did not fully recover from that injury. As a result, the WCJ
awarded Claimant ongoing total indemnity benefits beginning December 8, 2014.
Employer appealed to the Board.


             The Board affirmed, explaining (with emphasis added):

            When a claimant’s employment is terminated for post-
            injury misconduct, the employer bears the burden of
            proving that a position would have been available but for
            circumstances which merit allocation of the consequences
            of the discharge to the claimant, such as the claimant’s
            lack of good faith. [Vista Int’l Hotel v. Workers’ Comp.
            Appeal Bd. (Daniels), 742 A.2d 649 (Pa. 1999)]. The
            WCJ credited Claimant’s testimony indicating that he
            notified [Employer] that he would be out of work briefly
            due to the work injury, and that his employment was
            subsequently terminated as of December 8, 2014. She
            noted that [Employer] did not present any evidence to
            contradict Claimant’s testimony.

                    Whether a claimant’s employment was terminated
            for conduct evidencing a lack of good faith is a question
            of fact for the WCJ. Second Breath [v. Workers’ Comp.
            Appeal Bd. (Gurski), 799 A.2d 892 (Pa. Cmwlth. 2002)].
            The WCJ found that Claimant did not act in bad faith, and
            that work within his restrictions was not available after
            December 8, 2014. Claimant’s testimony, found credible

                                         8
              by the WCJ, is substantial evidence supporting that
              finding. We determine no error.

Bd. Op., 7/24/18 at 4. Employer now petitions for review to this Court.3


                                            II. Issue
               On appeal,4 Employer argues the WCJ and the Board erred in granting
Claimant’s claim petition and awarding indemnity benefits because they applied
the incorrect burden of proof and the record lacks substantial, competent evidence
to support a determination that Claimant sustained a work-related disability.


                                        III. Discussion
                                        A. Contentions
               Employer argues the WCJ and the Board erred in awarding Claimant
indemnity benefits.        It asserts that, because the controlling document was a
medical-only NCP, Claimant was required to prove all of the elements of his claim
petition, including his allegation that he sustained a disability as a result of the
work injury. Employer contends Claimant failed to do so. It maintains neither of
Claimant’s medical experts opined that Claimant was unable to work in the
modified job in which he worked for three months after the injury.                        Instead,
Employer argues, Claimant admitted he decided, on his own, to take himself out of
work. Employer asserts the WCJ erred in disregarding Claimant’s admissions.


       3
         After filing its petition for review, Employer filed a petition for supersedeas pending its
appeal, which was denied.
       4
         Our review is limited to determining whether the WCJ’s findings of fact were supported
by substantial evidence, whether an error of law was committed or whether constitutional rights
were violated. Phoenixville Hosp. v. Workers’ Comp. Appeal Bd. (Shoap), 81 A.3d 830 (Pa.
2013).



                                                 9
             Employer further contends the WCJ and the Board erred in shifting
the burden to Employer to show work was available after Employer terminated
Claimant’s employment, despite the fact that the evidence shows Claimant made
the decision to voluntarily quit the modified job before Employer terminated his
employment.


             Employer maintains there is no substantial, competent evidence to
support a finding that Claimant sustained a disability as a result of the work injury;
thus, Claimant is not entitled to indemnity benefits related to the work injury.


             Claimant responds that, in its appeal to the Board, Employer did not
assert that the WCJ misapplied the burden of proof. As a result, Claimant asserts
Employer waived that issue.


             In any event, Claimant contends, the WCJ accepted Claimant’s
testimony as to the origin of his back injury and increasing inability over the next
several months to perform modified light duty work. Claimant maintains the WCJ
also accepted the testimony of Claimant’s Orthopedist and Claimant’s Physiatrist
and expressly rejected the testimony of Employer’s Physician. Thus, Claimant
argues he sustained his burden of proving an entitlement to indemnity benefits.


                                     B. Analysis
             It is solely for the WCJ, as fact-finder, to assess credibility and resolve
evidentiary conflicts. Edwards v. Workers’ Comp. Appeal Bd. (Epicure Home
Care, Inc.), 134 A.3d 1156 (Pa. Cmwlth. 2016). Thus, the WCJ may accept or



                                          10
reject the testimony of any witness, in whole or in part, including that of a medical
witness. Id. Further, this Court views the evidence in a light most favorable to the
party who prevailed before the WCJ. Id. Additionally, we draw all reasonable
inferences deducible from the evidence in support of the WCJ’s decision in favor
of the prevailing party. Id. It does not matter whether there is record evidence that
supports findings contrary to those made by the WCJ; the pertinent inquiry is
whether the evidence supports the WCJ’s findings. Id.


                In a claim petition proceeding, the claimant bears the burden of
proving all of the elements necessary to support a WCJ’s award of compensation,
including the duration and extent of the disability alleged. Second Breath. “Where
there is no obvious causal connection between the injury and the alleged work-
related cause,” the claimant must establish the causal connection by unequivocal
medical evidence in order to recover. Rocco v. Workers’ Comp. Appeal Bd.
(Parkside Realty Constr.), 725 A.2d 239, 243 (Pa. Cmwlth. 1999).


                More important for resolving this case, “[w]here a claimant
establishes that a work-related injury prevents a return to the time-of-injury job, a
loss of earnings capacity is established.” Vista Int’l Hotel, 742 A.2d at 657. Once
such a loss is demonstrated, the claimant should generally be entitled to benefits,
unless the employer can show employment is available within the claimant’s
restrictions.    Id.   “[A]s a general rule, where a work-related disability is
established, a post-injury involuntary discharge should be considered in connection
with the separate determination of job availability rather than as dispositive of loss
of earnings capacity.” Id.



                                         11
              Thus, where an employer alleges that a claimant’s loss of earnings is
the result of a post-injury involuntary discharge, the employer bears the burden of
proof. Second Breath. “The employer must prove that suitable work was available
or would have been available but for the circumstances which merit allocation of
the consequences of the discharge to the claimant, such as the claimant’s lack of
good faith.” Id. at 900 (citing Vista Int’l Hotel) (footnote omitted). Moreover, the
WCJ, as fact-finder, determines whether a claimant was discharged for conduct
evidencing a lack of good faith. Id.


              At the outset, our review of the record reveals that, in its appeal to the
Board, Employer did not assert that the WCJ erred in misapplying the burden of
proof here.    Reproduced Record (R.R.) at 224a-28a.          Therefore, this issue is
waived. Second Breath. Regardless of waiver, however, we discern no error in the
WCJ’s application of the burden of proof.


              To that end, the WCJ determined that Claimant met his burden of
proving entitlement to ongoing indemnity benefits beginning December 8, 2014,
the date Employer terminated Claimant’s employment. Specifically, the WCJ
found Claimant was totally disabled from his time of injury position at the time
Employer terminated his employment. F.F. No. 7(a), (d). These findings are
supported by the credible testimony of Claimant’s Orthopedist and Claimant’s
Physiatrist. R.R. at 56a-57a; 141a-42a.


              Further, the WCJ’s supported findings reveal that, although Employer
initially provided Claimant with modified duty work, when Claimant returned to



                                          12
modified work, he experienced increased pain as a result of the work injury, sought
treatment at the emergency room, and was told to remain off work until he could
secure treatment through pain management. F.F. No. 7(d); R.R. at 26a-28a. The
WCJ’s supported findings also reveal that Claimant notified Employer of these
circumstances, and Employer removed Claimant from its schedule and terminated
his employment based on a “no call off/no show.” F.F. No. 7(d); R.R. at 28a.
Employer presented no evidence to contradict Claimant’s testimony that he
notified Employer he would not report to work because of the work injury. F.F.
No. 7(d).   As a result, the WCJ determined Employer terminated Claimant’s
employment without cause, and, therefore, there was no modified work available
to Claimant after his termination from employment on December 8, 2014. Id. No
error is apparent in this regard. Second Breath.


             Employer relies on other portions of Claimant’s testimony, which it
claims support findings that differ from those made by the WCJ. As set forth
above, however, the WCJ was free to accept Claimant’s testimony in part.
Edwards. Moreover, contrary to Employer’s assertions, it is irrelevant whether the
record supports findings other than those made by the WCJ; the pertinent inquiry is
whether the evidence supports the findings actually made, which, as set forth
above, it does. Id. Viewing the evidence in a light most favorable to Claimant,
who prevailed before the WCJ, and drawing all reasonable inferences from the
evidence in Claimant’s favor, as we must, id., the record amply supports the WCJ’s
findings.




                                         13
             In sum, because the record supports the WCJ’s findings and the
WCJ’s ultimate determinations comport with the law, we affirm.




                                       ROBERT SIMPSON, Judge


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




                                         14
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Heartland Employment Services, LLC, :
                       Petitioner   :
                                    :
            v.                      :   No. 1137 C.D. 2018
                                    :
Workers' Compensation Appeal        :
Board (Toth),                       :
                       Respondent :

                               ORDER

           AND NOW, this 14th day of February, 2019, the order of the
Workers’ Compensation Appeal Board is AFFIRMED.




                                  ROBERT SIMPSON, Judge
