            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


The Pennsylvania State University/                :
The PMA Insurance Group,                          :
                        Petitioner                :
                                                  :
                       v.                         :   No. 1050 C.D. 2015
                                                  :   SUBMITTED: October 30, 2015
Workers’ Compensation Appeal                      :
Board (Bachman),                                  :
                      Respondent                  :


BEFORE:         HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
                HONORABLE P. KEVIN BROBSON, Judge
                HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE LEADBETTER                                      FILED: January 6, 2016


                Employer, the Pennsylvania State University and the PMA Insurance
Group, petition for review of an order of the Workers’ Compensation Appeal
Board that affirmed the decision of a Workers’ Compensation Judge (WCJ), as
modified, to grant the claim and reinstatement petitions of Claimant Joel Bachman
and to deny Employer’s termination petition. The modification reflects an offset
for Claimant’s receipt of unemployment compensation benefits in the weekly
amount of $431. We affirm.1
                For almost ten years, Claimant was employed as an animal caretaker
for Employer. His duties included receiving, treating, watering, changing cages

   1
       In October 2015, Claimant indicated that he would not be filing a brief.
and taking care of a variety of animals. On April 23, 2012, he sustained a work-
related injury to his right hand as a result of lifting, removing, replenishing and
replacing rat cages on a rack. Specifically, he “felt something like a rubber band
snapping in his right hand, causing him pain that lasted throughout the night.”
WCJ’s January 22, 2014 Decision, Finding of Fact (F.F.) No. 3. When Claimant
awoke the next morning, he was still experiencing pain and his hand was swollen.
Accordingly, he telephoned his supervisor, notified her of the incident and advised
her that he would be unable to report to work. Pursuant to her instructions, he
filled out an incident report the next day and sought treatment with WorkNet.
Although he continued to work full time, his pain persisted. Eventually, one of the
WorkNet doctors placed him on work restrictions. In August 2012, following an
MRI, Claimant began treating with board-certified orthopedic surgeon Sanjiv H.
Naidu, M.D. Dr. Naidu took Claimant off work in September 2012 and performed
surgery for right carpal tunnel and cubital tunnel syndromes in November 2012.
Id.
              Employer acknowledged the work injury as a right-hand strain,
issuing a medical-only notice of compensation payable (NCP) in June 2012.2 It
subsequently issued a notice of temporary compensation payable (NTCP) on
October 5, 2012, acknowledging possible right carpal tunnel and cubital tunnel
syndromes and noting a weekly compensation rate of $521.52 based on an average
weekly wage of $782.28. Four days later, it issued a notice of compensation denial

      2
      In 2004, the Bureau added medical-only NCPs. A medical-only NCP provides an
employer with the option to accept liability for an injury, but not a loss of earning power.
Armstrong v. Workers’ Comp. Appeal Bd. (Haines & Kibblehouse, Inc.), 931 A.2d 827, 831 (Pa.
Cmwlth. 2007). In other words, it places a claimant on notice of the extent of an employer’s
acceptance of the work injury because it acknowledges that a claimant is entitled to medical
expense payments as a result of a work incident but denies any associated disability. See id.



                                             2
(NCD), denying that Claimant had sustained any work injury and noting that it
initially had accepted the claim as a right-hand strain in a medical-only NCP.
             On October 17, 2012, Claimant filed a claim petition alleging that he
had right carpal tunnel and cubital tunnel syndromes as a result of his April 2012
work injury.     He simultaneously filed a reinstatement petition, alleging a
worsening of his condition as a result of the work injury and noting that Employer
had replaced a medical-only NCP with a NTCP and then a NCD. Employer filed a
termination petition in April 2013, alleging that Claimant had fully recovered from
his work injury, the right-hand strain that it acknowledged in the medical-only
NCP, and was able to return to work without restrictions based on the September
2012 independent medical examination (IME) of board-certified orthopedic
surgeon David S. Zelouf, M.D.
             In support of his position, Claimant testified and also presented the
testimony of Dr. Naidu. Claimant testified that he never experienced pain or
numbness in his hands or elbows before the injury date, that he continues to
experience pain and tenderness and that he does not feel that he can perform all the
duties of his pre-injury job. Id., No.3. Dr. Naidu testified that Claimant’s right
carpal tunnel and cubital tunnel syndromes were caused by his work injury and that
the surgery he performed for those conditions was also related to that injury. In
addition, he testified that Claimant continues to experience persistent numbness
and tingling in his arm and cannot return to his pre-injury job without restrictions
due to the work injury. Id., No. 7.
             In pertinent part, Employer presented the medical testimony of Dr.
Zelouf and Edwin A. Aquino, M.D. Dr. Zelouf, who had conducted the IME,
acknowledged that Claimant possibly had right carpal tunnel and cubital tunnel



                                         3
syndromes, but opined that his work injury consisted of a sprain or strain of the
dorsum of his right hand and that the subsequent nerve issues and surgery were
unrelated to that injury. Dr. Aquino, who saw Claimant one time in June 2012 in
order to conduct an electrodiagnostic examination, opined that there was no
evidence of a nerve injury in the right median and ulnar nerves of Claimant’s hand.
             Ultimately, the WCJ accepted as credible the testimony of Claimant
and Dr. Naidu.     Specifically, the WCJ found that Claimant was “a credible,
persuasive witness who testified logically and sequentially concerning his
employment job [sic] duties, the happening of the work accident, his follow-up
care, and his current condition.” Id., No. 8. Further, the WCJ found that, as
Claimant’s surgeon, Dr. Naidu had a better understanding of his patient’s condition
than the other medical witnesses. The WCJ rejected the testimony of Drs. Zelouf
and Aquino, noting that they had not seen all of Claimant’s records. Accordingly,
determining that Claimant had sustained work-related right carpal tunnel and
cubital tunnel syndromes, that he continued to remain disabled therefrom, and that,
he was, therefore, entitled to total disability benefits from September 19, 2012, and
into the future, the WCJ granted Claimant’s claim and reinstatement petitions and
denied Employer’s termination petition.          The Board affirmed, with the
aforementioned modification, and Employer’s petition for review followed.
             Although Employer acknowledged in the medical-only NCP that
Claimant was entitled to medical expense payments for a right-hand strain as a
result of the April 2012 work incident, it denied any associated liability. Because
Employer never accepted liability for the loss of earning power associated with
that lesser injury, Claimant carried the burden of proving a work injury beyond the
acknowledged right-hand strain. See Inglis House v. Workmen’s Comp. Appeal



                                         4
Bd. (Reedy), 634 A.2d 592, 595 (Pa. 1993) (a claimant who believes that a work
injury is causing a loss of earning power must file a claim petition and prove all of
the elements necessary to support an award of benefits). In addition, he must
establish that the proven work injury caused a loss of earning power.            See
Delaware County v. Workers’ Comp. Appeal Bd. (Baxter Coles), 808 A.2d 965,
968 (Pa. Cmwlth. 2002) (a claimant must establish that the work injury resulted in
a disability, that is, a wage loss, which continues for the period for which he seeks
benefits). The claimant can meet this burden by proving that his work injury
prevents him from performing his time-of-injury job. Klarich v. Workers’ Comp.
Appeal Bd. (RAC’s Ass’n), 819 A.2d 626, 629 (Pa. Cmwlth. 2003). Further, in the
context of a reinstatement petition proceeding, the claimant must demonstrate that
the injury which gave rise to his original claim continues and that, through no fault
of his own, his earning power is again negatively impacted by the injury. Virgo v.
Workers’ Comp. Appeal Bd. (County of Lehigh-Cedarbrook), 890 A.2d 13, 18 (Pa.
Cmwlth. 2013).
             Moreover, an employer seeking to terminate a claimant’s workers’
compensation benefits must prove by competent medical evidence that the
disability related to the compensable injury has ceased. Casne v. Workers’ Comp.
Appeal Bd. (STAT Couriers, Inc.), 962 A.2d 14, 16 (Pa. Cmwlth. 2008). Where a
current disability exists, the employer has the burden of proving an independent
cause for the disability or a lack of a causal connection between the continuing
disability and the work-related injury. Metro. Ambulance Inc. v. Workers’ Comp.
Appeal Bd. (Walker), 702 A.2d 881, 884 (Pa. Cmwlth. 1997).
             On appeal, Employer generally contends that the WCJ acted
capriciously and failed to render a reasoned decision when he allegedly



                                         5
disregarded substantial, competent, uncontroverted and critically relevant evidence
and, instead, accepted incompetent, equivocal and contradictory evidence to
determine that Claimant’s right carpal tunnel and cubital tunnel syndromes were
caused by his April 2012 work incident. More specifically, it argues that the WCJ
disregarded alleged inconsistencies in the evidence, failed to consider and/or make
findings regarding the plethora of medical evidence that it submitted and failed to
fully appreciate the education and experience of its medical witnesses. In view of
the nature of Employer’s arguments, we will briefly outline the evidentiary
principles at issue.
                A capricious disregard of evidence “occurs only when the fact-finder
deliberately ignores relevant, competent evidence.” Williams v. Workers’ Comp.
Appeal Bd. (USX Corp.-Fairless Works), 862 A.2d 137, 144 (Pa. Cmwlth. 2004).
The reasoned decision requirement provides that a WCJ shall file 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.” Section 422(a) of the Workers’ Compensation Act.3 A WCJ need not,
however, specifically evaluate every line of testimony offered to render a reasoned
decision as long as he makes the crucial findings and gives proper reasons for his
decision. Patton v. Workers’ Comp. Appeal Bd. (Lane Enters., Inc.), 958 A.2d
1126, 1137 (Pa. Cmwlth. 2008). In addition, notwithstanding that requirement, it
remains within the purview of the WCJ as the final arbiter of evidence to
determine the weight to be accorded evidence.                 Roccuzzo v. Workers’ Comp.
Appeal Bd. (Sch. Dist. of Phila.), 721 A.2d 1171, 1175 (Pa. Cmwlth. 1998).

    3
        Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 834.



                                                 6
              Regarding the requisite evidence to support a decision, “[s]ubstantial
evidence is such relevant evidence as a reasonable person might accept as adequate
to support a conclusion.”       McCabe v. Workers’ Comp. Appeal Bd. (Dep’t of
Revenue), 806 A.2d 512, 515 (Pa. Cmwlth. 2002). We must view the evidence in
the light most favorable to the party who prevailed below and draw all reasonable
inferences deducible therefrom in favor of that party. Id. Where both parties have
presented evidence, it is irrelevant whether there is evidence of record which
supports a fact finding contrary to those made by the WCJ. The relevant inquiry is
whether there is substantial evidence to support the WCJ’s finding. Id. In that
regard, the WCJ has complete authority over questions of credibility, conflicting
medical evidence and evidentiary weight. Id. In addition, the WCJ is free to
accept or reject, in whole or in part, the testimony of any witness, including a
medical witness. Williams, 862 A.2d at 144.
              In the present case, the WCJ’s decision reflects that he carefully
considered and weighed the testimony of the primary medical experts and set forth
a proper rationale for his determinations. 4 Specifically, the WCJ, in rejecting the
opinions of Employer’s medical experts, found as follows:
              I initially note that both [Drs. Zelouf and Aquino] saw
              the claimant only one time. They did not examine all of
              [his] past medical records, thus depriving themselves of a
              full picture of [his] condition both before and after the
              work injury. The one time examination and cursory

    4
     In support of its position that the WCJ may not have adequately considered Employer’s
medical evidence, Employer expressed a concern that the cover letter included as part of the
WCJ’s decision lists Dr. Naidu’s deposition under “Employee Exhibits” but nothing under
“Employer Exhibits.” As Employer recognizes, however, the WCJ specifically acknowledged
Employer’s evidence in the body of his decision. Accordingly, Employer’s concern that the
WCJ’s oversight in the cover letter somehow indicates that he gave insufficient weight to
Employer’s medical evidence is of no moment.



                                             7
               record review gave these two doctors a very narrow
               factual base upon which to ground their conclusions.
F.F. No. 10.
               Further, in according more weight to the opinion of Dr. Naidu, the
WCJ found him to be more qualified than the two IME doctors and noted as
follows: “[Dr. Naidu] has been the treating physician for about a year and he has
examined the claimant under all types of circumstances and conditions of both
remission and exacerbation. This gives him a broad factual base upon which to
ground his conclusions and adds to his credibility.”        Id., No. 11.   It is well
established that a WCJ may ascribe more weight to the opinion of a treating
physician. D.P. “Herk” Zimmerman, Jr., Inc. v. Workmen’s Comp. Appeal Bd.
(Himes), 519 A.2d 1077, 1080 (Pa. Cmwlth. 1987). Where, as here, the WCJ’s
decision and reasoning reflect that he reviewed the record evidence, and, where his
respective credibility determinations as to the physicians is based on Claimant’s
expert having greater familiarity and experience with Claimant, the test for a
reasoned decision is met. PEC Contracting Eng’rs v. Workers’ Comp. Appeal Bd.
(Hutchison), 717 A.2d 1086, 1089 (Pa. Cmwlth. 1998).
               Accordingly, there is no indication that the WCJ acted capriciously,
failed to render a reasoned decision or disregarded substantial, competent,
uncontroverted and critically relevant evidence. For the above reasons, we affirm.



                                       _____________________________________
                                       BONNIE BRIGANCE LEADBETTER,
                                       Judge


Judge Cohn Jubelirer did not participate in the decision in this case.



                                          8
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


The Pennsylvania State University/      :
The PMA Insurance Group,                :
                        Petitioner      :
                                        :
                  v.                    :     No. 1050 C.D. 2015
                                        :
Workers’ Compensation Appeal            :
Board (Bachman),                        :
                      Respondent        :


                                     ORDER


            AND NOW, this 6th day of January, 2016, the order of the Workers’
Compensation Appeal Board is hereby AFFIRMED.




                                      _____________________________________
                                      BONNIE BRIGANCE LEADBETTER,
                                      Judge
