          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Diamond Manufacturing Company,             :
                                           :
                           Petitioner      :
                                           :
             v.                            :   No. 665 C.D. 2015
                                           :
Workers’ Compensation Appeal               :   Submitted: November 25, 2015
Board (Archavage),                         :
                                           :
                           Respondent      :


BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE MARY HANNAH LEAVITT, Judge1
             HONORABLE ANNE E. COVEY, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                                 FILED: April 11, 2016

      Diamond Manufacturing Company (Employer) petitions for review of the
Order of the Workers’ Compensation Appeal Board (Board) that affirmed the
decision of a Workers’ Compensation Judge (WCJ) denying Employer’s Petition
to Terminate (Termination Petition) and Petition to Suspend or Modify
(Suspension/Modification Petition) the workers’ compensation (WC) benefits of
Steven Archavage (Claimant). On appeal, Employer argues that the Board erred in
affirming because: (1) the WCJ’s decision failed to address all of the evidence
necessary for a reasoned decision as required by Section 422(a) of the Workers’

      1
          This case was assigned to the opinion writer before January 4, 2016, when Judge
Leavitt became President Judge.
Compensation Act2 (Act) and failed to explain why uncontroverted evidence
favorable to Employer was rejected, which is explained, at least in part, by the
WCJ’s bias against Employer; (2) the WCJ did not consider all of the evidence
pertaining   to   Employer’s     job   offer   to   Claimant     when    denying    the
Suspension/Modification Petition; and (3) the WCJ should not have imposed
litigation costs against Employer. Because we conclude that the WCJ did not
exhibit bias and issued a reasoned decision denying Employer’s Petitions that is
supported by substantial evidence, we affirm.


      I.     Background
              a. Work Injury and Petitions
      On February 14, 2012, Claimant sustained an injury while at work, which
Employer accepted as “a low back sprain/strain, a bulging disc at L3-4 and a
herniated disc at L4-5 with radiculopathy” via “an Agreement For Compensation
For Disability Or Permanent Injury” (Agreement for Compensation).3               (WCJ
Decision, Findings of Fact (FOF) ¶ 2.) Claimant sought treatment from his board-
certified family physician, Alan Boonin, M.D., in March 2012, who prescribed
pain medications, referred Claimant to physical therapy, and sent Claimant to
various specialists, including two neurosurgeons and a physiatrist for pain
treatment. Claimant underwent numerous diagnostic tests on his lumbar spine,
including two MRIs, a CT scan, an x-ray, and an EMG of his lumbar spine and
legs. Claimant was removed from work at the beginning of March 2012, and Dr.


      2
       Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 834.
      3
       Claimant initially filed Claim and Penalty Petitions, which were resolved by the
Agreement for Compensation and dismissed by the WCJ in an order dated November 29, 2012.

                                           2
Boonin, who is still treating Claimant’s work injuries, has not released Claimant to
work.
        At Employer’s direction, Claimant underwent an Independent Medical
Examination (IME) with Thomas DiBenedetto, M.D., a board-certified orthopedic
surgeon, on March 12, 2013. Dr. DiBenedetto issued a report and Physician’s
Affidavit of Recovery opining that, based on his examination of Claimant and
Claimant’s medical records, Claimant was fully recovered from his work-related
injuries. Employer filed the Termination Petition on April 30, 2013 based on Dr.
DiBenedetto’s opinion of full recovery. The Termination Petition was assigned to
the WCJ, and hearings were scheduled.
        On July 15, 2013, Employer filed a request with the WCJ to amend the
Termination Petition to include the suspension and/or modification of Claimant’s
benefits. The WCJ reviewed the motion and attachments, denied the request to
amend because “it [was] in no way clear based upon the documentation” that
amendment was appropriate, but advised Employer that it could file separate
petitions that would properly apprise Claimant of the relief sought. (Letter from
the WCJ to Counsel and Claimant’s Counsel (July 24, 2013), Employer’s Motion
to Recuse Ex. H.)
        By letter dated July 30, 2013 (Letter), Employer’s Controller (Controller)
“offered Claimant a full-time light[-]duty position rocklinizing die blocks.” (FOF
¶ 6.) The Letter indicated that “the position was available [for] forty (40) hours per
week and would pay $13.14 per hour and Claimant was scheduled to start on
August 12, 2013.” (FOF ¶ 6.) This position would involve Claimant “sitting at a
desk, holding a pencil like hand tool, using either the right or left hand, to put a
small bead of metal inside a hole in [the] die blocks to prevent scrap from coming


                                          3
back to the surface through the hole after it was punched.” (FOF ¶ 6.) The tool
Claimant would use weighs approximately one pound, and Claimant could sit or
stand to perform the work.
       Claimant     did    not    return   to    work,    and     Employer      filed   the
Suspension/Modification Petition on August 12, 2013 asserting that: Claimant was
fully recovered and could return to unrestricted work; it had offered Claimant a
specific light-duty job without loss of income and benefits; and Claimant did not
return to work. Employer included the Notice of Ability to Return to Work
(Notice), dated April 5, 2013, in its May 28, 2013 hearing submissions and the
Letter; however, because Employer was not, at the time, seeking to suspend or
modify Claimant’s benefits due to the offer of a specific job, the WCJ returned the
documents to Employer. (Hr’g Tr., May 28, 2013, at 8-9, R.R. at 206a-07a.)
Claimant filed answers denying the material averments of all Petitions. Employer
requested that the petitions be consolidated for the upcoming evidentiary hearing
scheduled for August 27, 2013.
               b. Motion to Recuse
       Employer filed a motion seeking the WCJ’s recusal (Motion to Recuse)
based on, inter alia, the belief that the WCJ would not render an impartial decision
because he was biased against Employer and Employer’s Counsel (Counsel). The
Motion to Recuse was argued at the August 27, 2013 hearing. Counsel, whose
office is in Pittsburgh, had requested to participate in the initial fifteen minute
hearing by telephone rather than in person in Wilkes-Barre.4 However, the WCJ


       4
         Counsel indicated that he had read the WCJ’s Procedural Questionnaire and, per that
information, the first hearing typically involved only procedural matters and that the WCJ
considered requests to participate by telephone on a case-by-case basis.

                                             4
denied this request, and Employer alleged that the WCJ: did not provide an
explanation regarding when participation by telephone would be granted;
characterized the request as being solely because Counsel did not want to travel to
Wilkes-Barre, rather than recognizing that it was an attempt to reduce Employer’s
litigation costs; used a condescending tone and interrupted Counsel during the May
28 hearing when they were discussing Counsel’s prior request to participate by
telephone; did not permit Employer to amend its Termination Petition to include
the Suspension/Modification Petition; and threatened sanctions against Employer
and its Counsel for not attending a mandatory mediation, which Employer and its
Counsel had determined would have been futile. After an exchange between the
WCJ and Employer’s Counsel, which encompasses 55 pages of transcript, (Hr’g
Tr., August 27, 2013, at 15-58, R.R. at 243a-86a), the WCJ denied the Motion to
Recuse. Although he had threatened to sanction Employer for the failure to appear
at the mediation, the WCJ did not impose sanctions.

      II.   WCJ’s Decision and Board Opinion
      Following the WCJ’s ruling on recusal and sanctions at the August 27, 2013
hearing, the parties offered evidence to support their respective positions.
Employer presented documentary evidence, Dr. DiBenedetto’s deposition
testimony, and Controller’s live testimony regarding the job offer.            Dr.
DiBenedetto described the history of Claimant’s work injury, Claimant’s
treatment, and Claimant’s current complaints regarding those injuries.         Dr.
DiBenedetto reviewed the various diagnostic studies, including the MRI films of
Claimant’s low back, and indicated that those studies revealed degenerative disease
of Claimant’s lumbar spine and a disc protrusion at L4-5, but contained no
evidence of root compression. He performed a physical examination on Claimant,

                                        5
which, inter alia, “revealed that Claimant[:] was in mild distress; . . . was unable
to straighten up; . . . walked with his spine flexed and his knees bent; . . . [has]
tenderness in the midline of his lumbosacral junction, the left buttocks and the
sciatic notch”; lacked reflexes in both his legs; and has increased back pain on the
right when his left hip was moved. (FOF ¶ 14.) Dr. DiBenedetto stated that “his
physical examination would not explain Claimant’s symptoms . . . and [he] could
not explain why Claimant had a limited range of motion of his lumbar spine or
why Claimant was unable to straighten up.”        (FOF ¶ 14.)     Dr. DiBenedetto
discounted the results of the EMG study that revealed lumbosacral radiculopathy
because the report did not indicate at what level it was taken.        (FOF ¶ 14;
DiBenedetto’s Dep. at 31-32, R.R. at 444a-45a.) Dr. DiBenedetto believed that his
opinions were consistent with those of the neurosurgeons Claimant had seen,
Philip Hlavac, M.D., and John Cantando, D.O., whose records were included in
Claimant’s medical records. (DiBenedetto’s Dep. at 23, R.R. at 436a.)           Dr.
DiBenedetto opined that Claimant was fully recovered from his work-related
injuries and capable of returning to unrestricted work. (FOF ¶ 14; DiBenedetto’s
Dep. at 18-19, R.R. at 431a-32a.)        On cross-examination, Dr. DiBenedetto
acknowledged that there were numerous findings listed in the objective study
reports, such as a “small central focal annular tear” at L4-5 with “mild stenosis of
the central spinal canal and neuroforamina” and “a minimal posterior central dis[c]
bulge” with “mild stenosis of the central spinal canal” at L3-4, that he did not
include in his own report because he did not consider them important or key. (FOF
¶ 15; DiBenedetto’s Dep. at 27-31, 46, R.R. at 440a-44a, 459a.)
      Controller testified that Employer offered Claimant the light-duty job based
on Dr. DiBenedetto’s release and that he had sent Claimant the Letter. Controller


                                         6
described the light-duty job as the only light-duty position Employer has, and that
Claimant would have the option of sitting, kneeling on a chair, or standing as he
wished. Controller acknowledged that the wages offered in the Letter were less
than Claimant’s average weekly wage, but stated that Claimant could earn more
money if he worked in other positions and/or overtime, worked a different shift to
earn shift differential, and if he received available bonuses.           Controller
acknowledged that there was no “guarantee that Claimant would have received a
bonus.” (FOF ¶ 11; Hr’g Tr., October 1, 2013, at 36-37, R.R. at 366a-67a.)
Employer also offered two surveillance videos purporting to show Claimant on two
occasions walking, carrying items (a small bag and a case of beer), and getting into
his vehicle and driving without any physical difficulty. However, upon viewing
the video, the WCJ found that it showed Claimant “walking with some difficulty
and with an altered gait, slightly bent forward at the waist” and was “actually
consistent with Claimant’s own testimony.” (FOF ¶ 13.)
      Claimant presented Dr. Boonin’s deposition testimony and Claimant’s live
testimony in opposition to the Petitions. Dr. Boonin described the history of
Claimant’s injury and treatment, as well as Claimant’s current condition and future
treatment plans. Dr. Boonin indicated that the results of the MRI studies showed
an L3-4 disc bulge and “a central disc protrusion at L4-5, which is consistent with
[Claimant’s positive] straight leg raise test, as well as a small central focal
an[n]ular tear.”   (FOF ¶ 15.)    When Claimant’s pain did not go away with
medication and physical therapy, Dr. Boonin sent Claimant to undergo an EMG,
which demonstrated lumbosacral radiculopathy, and to a pain specialist.         Dr.
Boonin stated that a subsequent CT scan confirmed the MRIs and noted
“encroachment of the neural foramina, which was consistent with the positive


                                         7
EMG study.”      (FOF ¶ 15.)      He further testified that Claimant’s symptoms,
including a persistent spasm in his low back, were consistent with the diagnostic
studies, particularly the irritation at L4-5. Dr. Boonin reviewed the light-duty
position Employer offered Claimant and believed that Claimant was not capable of
returning to work at that position due to his work-related injuries. Dr. Boonin
indicated that, if the current round of injections were unsuccessful, Claimant would
undergo a discogram and possible lumbar fusion surgery.            According to Dr.
Boonin, Claimant was not fully recovered from his work-related injuries and
continues to have radiculopathy on physical examination.
      Claimant testified live, describing how he was injured, his treatment history,
and current complaints. Claimant indicated that he had not experienced relief with
the injections and that fusion surgery may be a possibility if other measures are
unsuccessful in relieving his pain. He stated that his medicines cause him to
become light-headed, dizzy and nauseous, and he experiences pain with walking,
bending, and sitting. Claimant explained that he “experiences lower back pain,
which comes down around his hips into his buttocks and down the front of his legs
to his knees,” and he did not think he could return to work at the light-duty position
in his current condition. (FOF ¶ 12.)
      The WCJ made the following credibility determinations.           Based on his
observances of Claimant’s bearing and demeanor, the WCJ found Claimant’s
testimony genuine and credible and accepted it as fact. The WCJ did not credit
Controller’s live testimony, noting that while he did “not believe [Controller] was
being intentionally deceptive,” the WCJ found “it strangely convenient that despite
the clear and specific language contained in the job offer letter itself, [Controller]
testified that Claimant would have been brought back without a loss in earnings.”


                                          8
(FOF ¶ 11.) The WCJ observed that Controller’s testimony conflicted with the
information in the Letter and was speculative as to the possibility of the bonuses
available to Claimant.    Finally, the WCJ was “unimpressed by [Controller’s]
testimony concerning what Claimant could have earned if he worked more hours,”
or on a different shift or job classification than was offered in the Letter,
“especially when [Controller] testified that the position that was offered to
Claimant . . . was the only light[-]duty position . . . available.” (FOF ¶ 11.) Thus,
the WCJ found that “[b]ased solely upon the information contained in the . . .
[L]etter itself, Claimant would earn $525.60 per week if he had returned to work in
this position, which is substantially lower than his $680.48 average weekly wage.”
(FOF ¶ 6).
      With regard to the medical experts, the WCJ found Dr. Boonin’s testimony
to be more credible and where Dr. DiBenedetto’s testimony conflicted with Dr.
Boonin’s testimony, the former was specifically rejected and the latter was
specifically accepted. The WCJ explained that he

      was persuaded in part by the consistency between Claimant’s
      testimony and Dr. Boonin’s testimony, and in part by the consistency
      between Dr. Boonin’s findings on examination with the findings of
      the diagnostic studies. Furthermore, Claimant’s complaints have been
      consistent since the work-related injury, yet Claimant had no such
      symptoms prior to the work-related injury. In this regard, Dr. Boonin
      demonstrated that he was much more familiar with Claimant’s
      physical condition, having benefited from seeing the Claimant before
      and after the work-related injury, whereas Dr. DiBenedetto examined
      Claimant on only one isolated occasion. Unlike Dr. Boonin, who
      correlated Claimant’s complaints with the findings on examination
      and in the diagnostic studies, Dr. DiBenedetto chose to disregard
      Claimant’s subjective complaints. As Dr. Boonin credibly pointed
      out, Claimant’s subjective symptoms are consistent with the findings
      on the MRI studies, the findings of the EMG study and the findings on
      the [CT] study. Dr. Boonin’s opinions are logical and internally
      consistent.
                                         9
(FOF ¶ 16.)
          Based on the credited evidence, the WCJ found that Claimant was not fully
recovered from his work-related injuries and remains totally disabled as a result
thereof. Accordingly, the WCJ denied the Termination Petition reasoning that
Employer did not meet its burden of proving full recovery. The WCJ consolidated
the Suspension/Modification Petition with the Termination Petition, but denied the
Suspension/Modification Petition because Employer did not meet its “burden of
establishing that Claimant is capable of returning to work with [or without] a loss
in earnings based upon the credible testimony of Claimant and Dr. Boonin.”
(WCJ’s Decision, Conclusions of Law (COL) ¶¶ 3-4.) The WCJ concluded that
Employer had a reasonable basis for contesting the Termination Petition. (COL ¶
5.) However, the WCJ found that

                 [a]lthough there was a reference to a Notice . . . at the hearing
          on May 28, 2013, during the discussion of [Employer’s] supersedeas
          evidence relative to [Employer’s] request for supersedeas in
          conjunction with [its Termination Petition], [Employer has] not
          provided any evidence establishing that any Notice . . . was provided
          to Claimant prior to the subject job offer by [Controller].

(FOF ¶ 9.) Therefore, the WCJ concluded that Employer did not establish “a
reasonable basis for contest of [its Suspension/Modification] Petitions since
[Employer] ha[s] not presented any evidence that a Notice . . . was properly
provided to Claimant prior to the job being offered.” (COL ¶ 6.) While ordinarily
this would require Employer to pay Claimant’s attorney’s fees under Section
440(a) of the Act,5 Claimant’s counsel did not provide quantum meruit fee

          5
              Added by Section 3 of the Act of February 8, 1972, P.L. 25, as amended, 77 P.S. §
996(a).

                                                10
evidence and Claimant had not paid any fees to his counsel to date. (COL ¶ 6.)
Finally, the WCJ directed Employer to reimburse Claimant for $3,624.18 in
litigation fees. (COL ¶ 7.)
      Employer appealed, challenging the WCJ’s Decision on the grounds that
Employer had presented substantial competent evidence that supported the
conclusions that Claimant was fully recovered from his work-related injuries and
could return to work at the light-duty position offered by Employer without a loss
of wages that was omitted from the WCJ’s Decision. Employer contended that the
WCJ’s erroneous findings of fact and conclusions of law were caused, at least in
part, by his refusal to recuse from the proceedings. Thus, Employer argued that the
WCJ’s Decision was not reasoned and should be reversed.
      After setting forth the relevant law, the Board reviewed the record and the
WCJ’s credibility determinations.     It found that the WCJ did not disregard
overwhelming evidence and had issued a reasoned decision under Section 422(a)
of the Act that was supported by substantial evidence. The Board noted that,
because Claimant testified live, the WCJ’s conclusion that he was credited was
sufficient and that the WCJ provided multiple reasons for accepting Dr. Boonin’s
testimony over that of Dr. DiBenedetto. The Board “discern[ed] no material
misapprehension or irrational flaw in the WCJ’s credibility determinations, as
required by Casne [v. Workers’ Compensation Appeal Board (STAT Couriers,
Inc.), 962 A.2d 14 (Pa. Cmwlth. 2008).]” (Board Op. at 6.) According to the
Board, Dr. Boonin’s credited testimony constituted substantial competent evidence
that supported the WCJ’s findings that Claimant was not fully recovered and could
not perform the job offered by Employer. The Board disagreed with Employer’s
contention that the WCJ’s Decision was based on the WCJ’s bias or personal


                                        11
animus against Counsel, and it found no abuse of discretion by the WCJ in hearing
the matter.     The Board concluded that, because the WCJ’s Decision met the
reasoned decision standard and there was no capricious disregard where the WCJ
expressly considered and rejected the evidence before him, it could not “agree with
[Employer’s] contention that the only explanation for the WCJ’s [D]ecision in
Claimant’s favor is bias and personal animus directed toward defense counsel
and/or [Employer].” (Board Op. at 7.) The Board observed that “[a]dverse rulings
do not constitute bias.          Dow v. [Workers’ Compensation Appeal Board]
(Household Finance Co[mpany]), 768 A.2d 122[1, 1225] (Pa. Cmwlth. 2001).”
(Board Op. at 7.) Therefore, the Board affirmed the denial of the Termination and
Suspension/Modification Petitions. Employer now petitions this Court for review.6


       III.   Discussion
              a. Whether the WCJ demonstrated bias thereby rendering his
                 decision to be not reasoned under the Act.
       Employer argues that the WCJ’s refusal to recuse has “laid the foundation
for his arbitrary and capricious decision.” (Employer’s Br. at 6.) As it did before
the Board, Employer argues that the WCJ’s decision was not reasoned as required
by Section 422(a) of the Act because it did not address substantial, competent
evidence that weighed heavily in Employer’s favor, at least in part, based on the
WCJ’s bias. As examples, Employer points to the facts that: while the WCJ
accepted Claimant’s testimony that his medications make him, inter alia, dizzy and
lightheaded, the WCJ did not mention the fact that Claimant continues to operate a

       6
         “Our scope of review in a workers’ compensation appeal is limited to determining
whether necessary findings of fact are supported by substantial evidence, whether an error of law
was committed, or whether constitutional rights were violated.” Elberson v. Workers’
Compensation Appeal Board (Elwyn, Inc.), 936 A.2d 1195, 1198 n.2 (Pa. Cmwlth. 2007).

                                               12
motor vehicle despite these alleged symptoms; and the WCJ credited Dr. Boonin
“solely because Dr. DiBenedetto had only examined the Claimant during the IME,
whereas Dr. Boonin had examined the Claimant on more than one occasion.”
(Employer’s Br. at 34 (emphasis in original).) Employer describes additional
evidence addressing its Termination and Suspension/Modification Petitions, such
as Dr. Boonin’s cross-examination testimony and Controller’s testimony regarding
the availability of bonuses and overtime, which it contends the WCJ ignored or
disregarded without explanation. Employer contends “that a reasonable, unbiased
person would otherwise deem [that evidence] worthy to at least analyze even if that
evidence is ultimately not deemed credible.” (Employer’s Br. at 30.) Employer
maintains that it is not arguing that the decision should be reversed on credibility.
Instead, Employer contends that the WCJ failed to set forth all relevant evidence,
analyze it and provide logical reasons for accepting or rejecting the evidence. The
WCJ therefore did not issue a reasoned decision, in part, because of the arbitrary
and capricious manner in which the WCJ conducted this matter and his bias against
Employer and Employer’s Counsel.
      Section 422(a) of the Act sets forth the “reasoned decision” requirement as
follows:

      All parties to an adjudicatory proceeding are entitled to a reasoned
      decision containing findings of fact and conclusions of law based
      upon the evidence as a whole which clearly and concisely states and
      explains the rationale for the decisions so that all can determine why
      and how a particular result was reached. The [WCJ] shall specify the
      evidence upon which the [WCJ] relies and state the reasons for
      accepting it in conformity with this section. When faced with
      conflicting evidence, the [WCJ] must adequately explain the reasons
      for rejecting or discrediting competent evidence. Uncontroverted
      evidence may not be rejected for no reason or for an irrational reason;
      the [WCJ] must identify that evidence and explain adequately the

                                         13
      reasons for its rejection. The adjudication shall provide the basis for
      meaningful appellate review.
77 P.S. § 834. Our Supreme Court has explained

      a decision is “reasoned” for purposes of Section 422(a) if it allows for
      adequate review by the [Board] without further elucidation and if it
      allows for adequate review by the appellate courts under applicable
      review standards. . . . [T]he Act requires that, in rendering a reasoned
      decision in a case with conflicting evidence, the WCJ “must
      adequately explain the reasons for rejecting or discrediting competent
      evidence.” . . . The point is that, absent the circumstance where a
      credibility assessment may be said to have been tied to the inherently
      subjective circumstance of witness demeanor, some articulation of the
      actual objective basis for the credibility determination must be offered
      for the decision to be a “reasoned” one which facilitates effective
      appellate review.

Daniels v. Workers’ Compensation Appeal Board (Tristate Transport), 828 A.2d
1043, 1052-53 (Pa. 2003) (citing 77 P.S. § 834).           The reasoned decision
requirement does not, however, require a WCJ to:         “discuss all the evidence
presented,” Dorsey v. Workers’ Compensation Appeal Board (Crossing
Construction Company), 893 A.2d 191, 194 n.4 (Pa. Cmwlth. 2006); “give a line-
by-line analysis of each statement by each witness, explaining how a particular
statement affected the ultimate decision,” Acme Markets, Inc. v. Workers’
Compensation Appeal Board (Brown), 890 A.2d 21, 26 (Pa. Cmwlth. 2006); or
“set forth in detail the process by which he arrived at such a determination,” CPV
Manufacturing, Inc. v. Workers’ Compensation Appeal Board (McGovern), 805
A.2d 653, 657 (Pa. Cmwlth. 2002). Rather, the WCJ must make findings that are
necessary to resolve the issues presented by the evidence and that are relevant to
the decision. Dorsey, 893 A.2d at 194 n.4. “It is sufficient that the decision
contains findings of fact and conclusions of law, based upon all of the evidence,


                                        14
which clearly and concisely state and explain the rationale for the WCJ’s
decision.” CPV Manufacturing, Inc., 805 A.2d at 657.
        A WCJ’s findings are conclusive on appeal so long as the record, taken as a
whole, contains substantial evidence to support those findings. Bethenergy Mines,
Inc. v. Workmen’s Compensation Appeal Board (Skirpan), 612 A.2d 434, 437 (Pa.
1992). “Substantial evidence is such relevant evidence as a reasonable person
might accept as adequate to support a conclusion.”          Hoffmaster v. Workers’
Compensation Appeal Board (Senco Products, Inc.), 721 A.2d 1152, 1155 (Pa.
Cmwlth. 1998).      In any workers’ compensation proceeding, the WCJ, as the
ultimate fact-finder, is free to resolve conflicts in evidence and to determine the
credibility of witnesses. City of Philadelphia, Risk Management Division v.
Workmen’s Compensation Appeal Board (Harvey), 690 A.2d 1293, 1297 (Pa.
Cmwlth. 1997). The WCJ has the authority to accept or reject the opinions of any
witness, including medical experts, and we are bound by the WCJ’s credibility
determinations unless they are made arbitrarily and capriciously. Casne, 962 A.2d
at 18-19; Harvey, 690 A.2d at 1297.
        “Credibility determinations are more than a series of individual findings”;
they involve “the evaluation of a total package of testimony in the context of the
record as a whole, and reflect subtle nuances of reasoning that may not be fully
articulated, nor even fully appreciated by the fact[]finder.” Casne, 962 A.2d at 19.
Thus,

        [w]e must view the reasoning as a whole and overturn the credibility
        determination only if it is arbitrary and capricious or so fundamentally
        dependent on a misapprehension of material facts, or so otherwise
        flawed, as to render it irrational.



                                          15
Id. The capricious disregard of evidence occurs “when there is a willful and
deliberate disregard of competent testimony and relevant evidence which one of
ordinary intelligence could not possibly have avoided in reaching a result.” Id. at
19 n.5 (internal quotation marks omitted). But, the “express consideration and
rejection [of conflicting evidence], by definition, is not capricious disregard.”
Williams v. Workers’ Compensation Appeal Board (USX Corporation-Fairless
Works), 862 A.2d 137, 145 (Pa. Cmwlth. 2004). The term “arbitrary includes
[decisions] founded on prejudice or preference rather than on reason or fact.”
Casne, 962 A.2d at 19 n.5 (emphasis added) (internal quotation marks omitted).
Adverse rulings, without more, do not demonstrate the bias required for recusal.
Dow, 768 A.2d at 1225.
                   i. Termination Petition
      Employer asserts that the WCJ’s Decision is not reasoned because the WCJ
ignored, disregarded, or discredited evidence that was favorable to Employer, at
least in part, because he was biased against Employer.        Adverse rulings, by
themselves, do not demonstrate bias. Id. We have held that the exchange of harsh
words does not require recusal or necessarily demonstrate bias or prejudice. In re
Hunter, 782 A.2d 610, 613-14 (Pa. Cmwlth. 2001), overruled on other grounds by
In re Fry, 110 A.3d 1103 (Pa. Cmwlth. 2015). We appreciate that, given the
distance and cost to his client, Employer’s Counsel feels that the WCJ did not treat
his requests to participate in certain hearings by phone with due consideration. We
also recognize that Employer did present evidence which, if credited, could have
supported its position. However, we have thoroughly reviewed the record and,
specifically, the examples that Employer argues are the result of bias and have
found that there are objective reasons to support the WCJ’s determinations which


                                        16
are based on substantial evidence. Thus, these determinations are not, under the
law, arbitrary or resulting from capricious disregard.7
       Employer argues that Dr. DiBenedetto’s opinions should have been credited
over Dr. Boonin’s because the former is an orthopedic surgeon and the latter is a
family physician and that the WCJ’s crediting Dr. Boonin’s opinion over those of
Dr. DiBenedetto was arbitrary because it was based solely on the fact that the
former was Claimant’s treating physician and the latter only examined Claimant
once. First, there were several objective reasons the WCJ provided for finding Dr.
Boonin more credible than Dr. DiBenedetto8 and that one expert “may have had

       7
          While we conclude that there are objective reasons supported by the record that support
the WCJ’s findings and conclusions in this matter thereby rendering that decision reasoned under
the Act, we are troubled by some of the WCJ’s actions in this matter. For example, requiring
Counsel to drive from Pittsburgh to Wilkes-Barre to attend a fifteen minute procedural hearing
appears to be unreasonable, as does the WCJ’s comments and attitude during the May 28, 2013
hearing and argument on the Motion to Recuse at the August 27, 2013 hearing. Nonetheless, we
observe that, in making his decision, the WCJ was required to consider, within his “individual
discretion or conscience,” “whether there [was] substantial reasonable doubt as to [his] ability to
preside impartially” over the matter. Steinhouse v. Workers’ Compensation Appeal Board (A.P.
Green Services), 783 A.2d 352, 356 (Pa. Cmwlth. 2001) (internal quotation marks omitted). To
successfully challenge the WCJ’s determination that he could preside objectively and fairly,
Employer would have had to present evidence that “clearly show[ed] prejudice, bias, capricious
disbelief, or prejudgment.” In re: Hunter, 782 A.2d at 613. While the WCJ may have been high-
handed, his actions did not clearly show bias, and we must defer to the WCJ’s conclusion that he
could decide the matter fairly and impartially.
        8
           In crediting Dr. Boonin’s testimony over that of Dr. DiBenedetto, the WCJ cited the
following objective bases: (1) “the consistency between Claimant’s testimony and Dr. Boonin’s
testimony, and in part by the consistency between Dr. Boonin’s findings on examination with the
findings of the diagnostic studies”; (2) given the consistency of Claimant’s complaints and lack
of symptom’s prior to the injury, “Dr. Boonin demonstrated that he was much more familiar with
Claimant’s physical condition, having benefited from seeing the Claimant before and after the
work-related injury, whereas Dr. DiBenedetto examined Claimant on only one isolated
occasion”; (3) “Dr. Boonin . . . correlated Claimant’s complaints with the findings on
examination and in the diagnostic studies, [but] Dr. DiBenedetto chose to disregard Claimant’s
subjective complaints”; (4) “Dr. Boonin credibly pointed out, Claimant’s subjective symptoms
are consistent with the findings on the MRI studies, the findings of the EMG study and the
                                                                                  (Continued…)
                                               17
less interaction with the subject” has been specifically cited by the Supreme Court
as sufficient in Daniels, 828 A.2d at 1053. In addition, “[a]n expert medical
witness in a workers’ compensation proceeding is qualified to testify outside of his
medical specialty, and any objection to that testimony goes to the weight of the
evidence.” Williams, 862 A.2d at 145.
      Employer also points to inconsistencies within Dr. Boonin’s testimony
regarding his interpretation of the reports describing the results of Claimant’s
diagnostic studies. For example, Dr. Boonin testified that the MRI, CT scan, and
EMG reports indicated that: Claimant had a disc bulge at L3-4 with mild stenosis
“meaning that there was bone growth into the spinal canal pushing on the nerve at
that point”; a central disc protrusion, central focal annular tear, and mild stenosis at
L4-5; a bulge at L5-S1; “minimal encroachment into the neural foramina,”
“[m]eaning that this was pushing on the nerve coming out of that area which I felt
was confirmed by his EMG” at L4-5 and L5-S1; and lumbosacral radiculopathy.
(Boonin’s Dep. at 15, 17, 22-23, 25, R.R. at 490a, 492a, 497a-98a, 500a.) Dr.
Boonin opined that Claimant’s various symptoms, such as Claimant’s positive
right straight leg rise, persistent back spasm, and back and leg pain, were
consistent with these objective findings. (Boonin’s Dep. at 15, 23-25, 41, R.R. at
490a, 498a-500a, 516a.) He further explained that: Claimant was still undergoing
treatment, including potentially a discogram and fusion surgery in the future; was
not fully recovered from his work-related injuries; and could not return to work.
(Boonin’s Dep at 30-31, 36-37, 42-44, R.R. at 505a-06a, 511a-12a, 517a-19a.)
Although Dr. Boonin acknowledged on cross-examination that the MRI reports did


findings on the [CT] study”; and (5) “Dr. Boonin’s opinions are logical and internally
consistent.” (FOF ¶ 16.)

                                          18
not indicate encroachment on the nerve roots or spinal cord and that one part of the
CT scan report indicated that there was not “significant disc herniation or spinal
stenosis,” he observed that Claimant had an annular tear and that the radiologist
also indicated in the CT scan report that there was “mild stenosis central spinal
canal at L4-5 and L3-4.” (Boonin’s Dep. at 48-50, 52-53, R.R. at 523a-25a, 527a-
28a.)       Following cross-examination, Dr. Boonin indicated that his opinions
regarding Claimant’s condition had not changed. (Boonin’s Dep. at 72, R.R. at
547a.) As a physician, Dr. Boonin’s “answers given on cross-examination do not
destroy the effectiveness of a physician’s opinion given on direct,” particularly
where the physician does “not alter his original opinion following cross-
examination.”       Coyne v. Workers’ Compensation Appeal Board (Villanova
University), 942 A.2d 939, 956 (Pa. Cmwlth. 2008). Moreover, a review of the CT
scan report indicates that it does reference “mild stenosis of central spinal canal” at
L3-4, “minimal encroachment into bilateral neural foramina” and “mild stenosis of
the central spinal canal and neural foramina” at L4-5, and “minimal encroachment
into bilateral neural foramina” at L5-S1. (August 14, 2012 CT Scan Report at 1,
R.R. at 562a.) The two MRI reports likewise identify disc bulges and protrusions
at the levels of Claimant’s lumbar spine noted by Dr. Boonin and the presence of
the “small central focal annular tear” at L4-5. (March 8, 2012 MRI Report, R.R. at
559a-60a; January 7, 2013 MRI Report, R.R. at 564a-65a.) The EMG report states
that Claimant is suffering from “[m]ild left lower lumbosacral radiculopathy.”
(October 23, 2012 EMG Report, R.R. at 566a.)9

        9
          Moreover, while Employer cites Dr. Cantando’s notations indicating that Claimant’s
low back pain was “out of proportion to his imaging” and “there is no significant
[neuroforamina] or spinal stenosis,” Dr. Cantando also recognized that Claimant continued to
exhibit symptoms, including muscle spasms and an altered gait, and recommended treatment in
                                                                            (Continued…)
                                            19
       The WCJ reviewed the entirety of the witnesses’ testimony, chose to credit
Dr. Boonin’s opinions over those of Dr. DiBenedetto, and provided multiple,
objective bases for that determination that are supported by the record.                   The
express consideration and rejection of evidence is, by definition, not a capricious
disregard thereof.      Williams, 862 A.2d at 145.            The WCJ provided similar
objective and rational bases for his other credibility determinations that are
supported by the record and, accordingly, they are not subject to being overruled
“unless made arbitrarily and capriciously” or if they are “fundamentally dependent
on a misapprehension of material facts.” Casne, 962 A.2d at 19. The WCJ made
the findings that were necessary to resolve the issues presented by the evidence and
that were relevant to his decision, and these findings of fact and conclusions of law
were “based upon all of the evidence, [and] clearly and concisely state[d] and
explain[ed] the rationale for [his D]ecision.” Dorsey, 893 A.2d at 194 n.4; CPV
Manufacturing, Inc., 805 A.2d at 657. Accordingly, the WCJ’s Decision is a
reasoned decision as required by Section 422(a) of the Act.
       Employer had the initial burden of proof on the Termination Petition. To
terminate benefits, Employer had to demonstrate that either Claimant’s disability
ceased or that any current disability arose from a cause unrelated to the work
injury.   Campbell v. Workers’ Compensation Appeal Board (Antietam Valley
Animal Hospital), 705 A.2d 503, 506-07 (Pa. Cmwlth. 1998). Employer attempted
to meet this burden through Dr. DiBenedetto’s testimony, but it was not credited.
Rather, the WCJ credited Claimant’s expert testimony that Claimant had not fully

the form of facet injections from Claimant’s pain specialist. (Cantando’s Report at 3-5, R.R. at
575a-77a.) Dr. Cantando further recommended that if the facet injections did not work,
Claimant should undergo a discogram to determine whether a disc fusion would be beneficial.
(Cantando’s Report at 4-5, R.R. at 576a-77a.)

                                              20
recovered from his work-related injuries and could not return to work over the
conflicting testimony of Employer’s expert. The credited testimony constitutes
substantial evidence that supports the WCJ’s denial of the Termination Petition.


                   ii. Modification/ Suspension Petition
      Employer also challenges, on the basis of bias, the WCJ’s findings that
Employer did not provide Claimant with the Notice and that Employer had no
medical opinion placing Claimant on light-duty work restrictions and, therefore,
Employer was not entitled to modify Claimant’s WC benefits based on his refusal
to return to his modified-duty as directed. Employer asserts that it sent Claimant’s
counsel the Notice, along with Dr. DiBenedetto’s IME report and an affidavit of
recovery, and presented the same at the May 28, 2013 hearing on the Termination
Petition.   Employer notes that, at that time, it had not yet filed the
Suspension/Modification Petition so the WCJ handed it back to Counsel.
Employer subsequently submitted the Notice to the WCJ prior to the August 27,
2013 hearing. Employer further observes that, while it may not have had a release
to light-duty work for Claimant, the Notice was based on Dr. DiBenedetto’s
release of Claimant to full duty work.       Thus, Employer contends, the WCJ’s
findings are additional examples of his bias against Employer.
      We agree with Employer that the WCJ’s finding that Employer did not have
a physician’s opinion releasing Claimant to light-duty work, although technically
accurate, is not entirely correct because Employer did have Dr. DiBenedetto’s
report releasing Claimant to full duty work on March 12, 2013. We also agree with
Employer that the WCJ should have accepted the Notice and other related
documents during the May 28, 2013 hearing, particularly given that such


                                        21
documents frequently become relevant in later-filed or amended petitions. In this
regard, we further express our belief that the WCJ erred by not allowing Employer
to amend the Termination Petition to include a request for suspension or
modification, a generally routine request.10 Ultimately, however, even though the
WCJ erred in these findings, the WCJ did not deny the Suspension/Modification
Petition on these grounds. The WCJ concluded that Employer had not met its
burden for a suspension or modification because Claimant remained totally
disabled and could not return to work with or without a loss of earnings. (FOF ¶
17; COL ¶¶ 3-4.) Thus, any error was harmless.

               b. Whether the WCJ erred in relying only on the Letter when
                  considering the Suspension/Modification Petition.
       Employer next asserts that the WCJ should have looked beyond the four
corners of Employer’s light-duty job offer and considered Controller’s testimony
about Claimant’s opportunities to increase his pay. Employer maintains that the
WCJ’s rejection of Controller’s testimony was based on a hypertechnical review of
such offers, which has not been sanctioned by the courts. Allegheny Ludlum Steel
Corporation v. Workers’ Compensation Appeal Board (Evans), 806 A.2d 508, 511
(Pa. Cmwlth. 2002). Moreover, Employer contends that the Letter satisfied the
necessary requirements for such offers: it outlined the job duties and classification
(sedentary, light, etc.) and provided Claimant with enough information to ascertain
whether the position would be within his restrictions.               Eidem v. Workers’



       10
          While the WCJ did cite these reasons for concluding that Employer’s contest of the
Suspension/Modification Petition was unreasonable, (COL ¶ 6), the WCJ did not award any
attorney’s fees for this contest and, therefore, the error was harmless.

                                            22
Compensation Appeal Board (Gnaden-Huetten Memorial Hospital), 746 A.2d 101,
105 (Pa. 2000).
       For a claimant’s benefits to be modified because suitable alternative
employment was offered, the following four prongs must be met:

       1. The employer who seeks to modify a claimant’s benefits on the
          basis that he has recovered some or all of his ability must first
          produce medical evidence of a change in condition.

       2. The employer must then produce evidence of a referral (or
          referrals) to a then open job (or jobs), which fits in the
          occupational category for which the claimant has been given
          medical clearance, e.g., light work, sedentary work, etc.

       3. The claimant must then demonstrate that he has in good faith
          followed through on the job referral(s).

       4. If the referral fails to result in a job then claimant’s benefits should
           continue.

Kachinski v. Workmen’s Compensation Appeal Board (Vepco Construction
Company), 532 A.2d 374, 380 (Pa. 1987).11 The employer bears the initial burden
of proving the first two prongs and, if it does so, the burden then shifts to the
claimant to establish that he or she acted in good faith in following through on the
job referrals. Eidem, 746 A.2d at 104.
       As noted above, the WCJ denied the Suspension/Modification Petition on
the basis that Employer did not prove that Claimant was recovered from his work-

       11
          Kachinski was superseded, in part, by the 1996 amendments to Section 306(b) of the
Act, 77 P.S. § 512, relating to seeking modification or suspension of a claimant’s WC benefits
based on his or her earning power. See Phoenixville Hospital v. Workers’ Compensation Appeal
Board (Shoap), 81 A.3d 830 (Pa. 2013) (discussing the amendments to Section 306(b),
Kachinski, and the different ways an employer may seek to modify or suspend a claimant’s
benefits under the Act).

                                             23
related injuries such that he could return to work either with or without a loss of
earnings. (FOF ¶ 17; COL ¶¶ 3-4.) Having already concluded that the WCJ’s
findings and conclusions in this regard are supported by substantial evidence,
Employer has not met the first prong of the Kachinski standard and, therefore,
could not meet the requirements to suspend or modify benefits.12
               c. Whether the WCJ erred in awarding Claimant litigation costs.
       Finally, Employer challenges the award of litigation costs where Employer’s
contest of its Petitions was reasonable because it presented conflicting medical
evidence that should have been accepted by the WCJ.
       Section 440(a) of the Act provides, in relevant part, that

              [i]n any contested case where the insurer has contested liability
       in whole or in part, including contested cases involving petitions to
       terminate, reinstate, increase, reduce or otherwise modify
       compensation awards, agreements . . . , the employe . . . in whose
       favor the matter at issue has been finally determined in whole or in
       part shall be awarded, in addition to the award of compensation, a
       reasonable sum for costs incurred for attorney’s fee, witnesses,
       necessary medical examination, and the value of unreimbursed lost
       time to attend the proceedings: Provided, That cost for attorney fees
       may be excluded when a reasonable basis for the contest has been
       established by the employer or the insurer.

       12
          Because Employer did not meet the first requirement, we do not need to discuss the
other arguments. However, we note that, even if the WCJ had credited Controller’s testimony,
Employer would not be entitled to a suspension of Claimant’s benefits because Controller
acknowledged that he could not guarantee that Claimant would receive the bonuses which
Employer relied upon to make up the difference between Claimant’s pre-injury earnings and the
wages offered in the Letter. As for the sufficiency of the Letter, we would agree with Employer
that the Letter would have been sufficient to modify Claimant’s benefits because, pursuant to the
Letter, “[C]laimant [was] reasonably apprised of the job duties and classification, . . . through
expressly delineating th[o]se factors in the [L]etter” and was “given sufficient information in
order to determine whether the available position is within [his] physical restrictions,” namely
the weight of the tool and information regarding Claimant’s ability to sit, stand, or do both to
perform the duties. Eidem, 746 A.2d at 446.

                                               24
77   P.S.   §   996(a)    (emphasis    added).      Here,    the     Termination   and
Suspension/Modification Petitions were “finally determined in whole or in part” in
Claimant’s favor and, therefore, Employer was obligated to pay the reasonable
costs of the litigation in this matter. Id. Section 440(a) permits attorney’s fees to
be excluded from these costs if an employer demonstrates a reasonable basis for its
contest, but it does not provide a similar exclusion for other litigation costs. The
WCJ found Employer’s contest of the Termination Petition reasonable based on its
presentation of medical testimony that, had it been credited, would have supported
terminating Claimant’s benefits. Thus, the WCJ correctly excluded such costs
from the litigation costs Employer was required to pay under the Act. We see no
error in the WCJ’s award of other litigation costs in this matter.


      For the foregoing reasons, we affirm the Board’s Order.




                                          ________________________________
                                          RENÉE COHN JUBELIRER, Judge




                                          25
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Diamond Manufacturing Company,        :
                                      :
                       Petitioner     :
                                      :
           v.                         :   No. 665 C.D. 2015
                                      :
Workers’ Compensation Appeal          :
Board (Archavage),                    :
                                      :
                       Respondent     :


                                    ORDER

     NOW, April 11, 2016, the Order of the Workers’ Compensation Appeal
Board, entered in the above-captioned matter, is hereby AFFIRMED.




                                      ________________________________
                                      RENÉE COHN JUBELIRER, Judge
