            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Troy Davis,                                 :
                       Petitioner           :
                                            :
      v.                                    : No. 126 C.D. 2018
                                            : SUBMITTED: May 25, 2018
Workers’ Compensation Appeal                :
Board (CPG International, LLC),             :
                 Respondent                 :

BEFORE:        HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                            FILED: August 23, 2018

      Troy Davis (Claimant) petitions for review of the December 28, 2017 order
of the Workers’ Compensation Appeal Board (WCAB), which affirmed the March
22, 2017 decision and order of the Workers’ Compensation Judge (WCJ). That WCJ
order granted, in part, Claimant’s claim petition for temporary total disability
benefits from a work-related injury under the Workers’ Compensation Act (Act),1
and then immediately suspended those workers’ compensation benefits and
terminated Claimant’s benefits as of March 3, 2016. The issue before this Court is
whether the WCJ’s decision that Claimant did not sustain a work-related low back
injury is supported by substantial evidence. For the following reasons, we affirm
the WCAB.
                                       I. Background
      On June 2, 2014, Claimant began working as a temporary employee as a
machine operator for CPG International, LLC (Employer), transitioning to full time

      1
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
in February 2015. Some of Claimant’s responsibilities included moving materials
weighing up to 50 pounds. On June 29, 2015, while at work, Claimant tripped and
fell backwards. Claimant alleged that he sustained injuries to his right elbow, shin,
and lower back as a result of this accident.
       After the fall, Claimant continued to work for several more months. On
October 8, 2015, he sought medical treatment for back pain. Reproduced Record
(R.R.) at 37a.
       On December 22, 2015, Claimant filed a claim petition seeking temporary
total disability benefits for injuries to his low back and right elbow as of December
21, 2015, plus payment of attorneys’ fees and medical bills. On January 20, 2016,
Employer issued a medical-only Notice of Compensation Payable (NCP) for
Claimant’s work-related injury for only his “right elbow contusion.” R.R. at 36a.
       The WCJ held an evidentiary hearing on June 21, 2016.2 At this hearing,
Claimant testified to the following.
       On June 29, 2015, while at work, Claimant tripped and fell backwards onto a
concrete floor, cutting his right elbow in the process. R.R. at 339a-40a. He then
received assistance from Gino Owens, his co-worker, who bandaged the cut. Id.
Claimant then reported the incident to his team leader, Dominick DiPietro and
advised Mr. DiPietro that he had hurt his back as a result of the fall, but that he would
be fine. Id. at 341a-43a. Claimant did not seek additional medical treatment at that
time. Id. at 344a.




       2
          At the hearing, Claimant amended the claim petition to include a request for partial
disability benefits from November 12, 2015 to January 19, 2016, with total disability benefits
thereafter. WCJ’s Hr’g, Notes of Testimony (N.T.), 1/21/16, at 6-7; Finding of Fact (F.F.) No. 2,
R.R. at 36a.

                                               2
      The following day Claimant informed his supervisors Victor Alunni and Rob
Hunter, and Butch Barron from Human Resources, that he had fallen and injured his
elbow and that his back was sore. R.R. at 345a-47a.
      Claimant continued to work through the summer of 2015, despite worsening
back pain, but eventually in October, he informed Mr. Barron that he needed to see
a doctor. Id. at 350a-51a. Mr. Barron arranged for an immediate appointment with
Employer’s physician, Catherine Marie Rainey, M.D., but Claimant continued his
shift and instead visited Dr. Rainey the following morning. Id. at 351a. On October
8, 2015, Claimant presented to Dr. Rainey with complaints of pain in his lower back,
right hip, and right groin areas. Id. at 133a, 351a. On that same date, Claimant had
X-rays of his right hip and lumbar spine, which indicated mild degenerative changes
involving Claimant’s facet joints as well as established bone spurs near his head and
neck. Id. at 23a, 25a, 82a-83a, 154a.
      On November 20, 2015, Claimant underwent a magnetic resonance imaging
(MRI) on his back, which indicated left-sided disc herniation and general
degenerative changes at L5-S1. Id. at 26a, 123a, 355a, 372a.
      At the hearing, Claimant offered into evidence the deposition transcript of
Cheryl Oleski, D.O., a board-certified physician in physical medicine and
rehabilitation. R.R. at 77a. On January 26, 2016, Dr. Oleski examined Claimant, as
well as the X-ray and MRI reports. Id. at 76a-77a, 79a, 356a. Dr. Oleski diagnosed
Claimant with inflammation on the right side, lower spine sprain, and left L5-S1 disc
herniation, which she attributed to Claimant’s June 29, 2015 work-related accident,
and concluded that Claimant was unable to work due to his back injury. Id. at 82a-
84a, 93a, 95a, 100a. Claimant continued to treat with Dr. Oleski for his back pain
every 4- to 6-weeks with Tylenol, creams, and two lower back injections. Id. at 84a-
86a, 92a-93a, 357a-58a. Dr. Oleski recommended a follow-up MRI, which Claimant


                                         3
underwent on May 5, 2016. Id. at 91a, 93a, 130a. That MRI indicated mild
degenerative disease but no significant central spinal stenosis. Id. at 93a; 130a.3
       At the evidentiary hearing, Employer submitted into evidence the deposition
testimony from Robert Hunter, its director of operations. Mr. Hunter testified that
he had received an accident report that had been filled out by Mr. DiPietro,
Claimant’s team leader, the day after the accident, but he did not recall Claimant
personally reporting a back injury to him. Id. at 162a, 168a-170a, 172a-73a.4
According to Mr. Hunter, Claimant continued working without apparent difficulty
from the day of the accident until October 2015, at which time Mr. Hunter recalls
that Claimant first began complaining about his back. Id. at 172a, 178a.
       Employer also provided deposition testimony from Mr. Alunni, who was
Claimant’s supervisor at the time of the incident. Id. at 206a. Mr. Alunni reviewed
the accident report and followed up with Claimant regarding his injury within a day
or two after the accident. Id. at 206a-07a. Mr. Alunni recalled that Claimant only
reported an elbow injury and did not complain about his back until August or
September. Id. at 207a-08a.
       In addition, Employer offered deposition testimony from Michele Homitz,
Employer’s production supervisor. During the time period in question, Ms. Homitz
regularly observed Claimant working and she was unaware that Claimant missed


       3
          Spinal stenosis is defined as a “narrowing of the vertebral canal, nerve root canals, or
intervertebral foramina of the lumbar spine, caused by encroachment of bone upon the space….The
condition may be either congenital or due to spinal degeneration.” Miller-Keane Encyclopedia
and Dictionary of Medicine, Nursing, and Allied Health (7th ed. 2003) https://medical-
dictionary.thefreedictionary.com/spinal+stenosis (last visited Aug. 13, 2018) (emphasis added).
       Dr. Oleski testified that it is not unusual for someone Claimant’s age to have degenerative
changes in his lower back and that long time smokers, like Claimant, have increased rates and risks
of degenerative back problems. R.R at 112a-13a.
       4
          The accident report was apparently signed by the Claimant on July 10, 2015. The record
is not clear on why Claimant signed the accident form approximately 10 days after it was prepared.

                                                4
any work or had work restrictions until Claimant went to Employer’s doctor in
October 2015. Id. at 308a-09a, 312a. Ms. Homitz testified that, on October 7, 2015,
Claimant requested a copy of the accident report to provide to his doctor who would
be treating him for a back injury. Id. at 307a, 310a-12a, 315a, 323a, 343a.
      Employer also submitted the accident report into evidence. Id. at 331a-32a.
It states: “Troy landed on his left elbow resulting in a small laceration and swelling
in the area.” as well as a “bruise on [his] left shin.” Id. at 142a-43a. The accident
report contains no reference to a low back injury. Id. at 24a.
      Finally, Employer presented deposition testimony from medical expert
Christian I. Fras, M.D., a board-certified orthopedic surgeon, who conducted an
Independent Medical Examination (IME) of Claimant on March 3, 2016. Id. at
234a-35a, 240a. Dr. Fras also reviewed Claimant’s prior medical history, both
MRIs, and the X-rays. Dr. Fras found that the November 2015 MRI showed
degenerative disc disease and the presence of a left side disc herniation and noted
that the May 2016 MRI still indicated degenerative disc disease, but that the left side
disc herniation was no longer present. Id. at 248a-51a. Dr. Fras testified that
Claimant’s medical history did not indicate symptoms of left sided disc herniation
and his physical examination of Claimant yielded no objective findings of a disc
herniation. Id. at 258a-59a, 263a-64a. Dr. Fras opined that Claimant’s condition
did not bear the clinical hallmarks of right-sided damage to the lower back, and that
Claimant’s reduced range of motion of his right hip was suggestive of right hip
arthritis. Id. at 248a, 264a-65a.
      Ultimately, Dr. Fras came to two conclusions. First, Claimant’s complaints of
back pain were “potentially . . . related . . . to hip arthritis, or other conditions,
including hernia problems, but they’re not conditions that could be attributed to the
L5-S1 left-sided disc herniation.” Id. at 259a, 263a-64a. Second, Claimant only


                                          5
sustained a right elbow injury from the accident, was fully recovered from this
injury, and was able to return to his pre-injury job without restrictions. R.R. at 257a-
58a, 261a-62a.
       The WCJ issued his Decision and Order on March 22, 2017, wherein he
determined that Claimant had not met his burden of proving that he sustained a back
injury from the work accident,5 but that Claimant had sustained a compensable
elbow injury entitling him to an award of temporary partial disability benefits.
However, because Claimant continued to work with no loss in earnings following
the accident, the WCJ immediately suspended Claimant’s benefits of March 3, 2016,
the date of Claimant’s IME. R.R. at 28a-29a.
       Claimant appealed to the WCAB, which did not take any additional evidence
and affirmed the WCJ. This appeal followed.
                                            II. Issues
       On appeal,6 Claimant argues that the WCJ’s determination that Claimant did
not sustain a work-related low back injury is not supported by substantial evidence.7
                                         III. Discussion
       Here, Claimant is essentially asking this Court to reweigh the evidence to
support Claimant’s position.                Claimant disputes the WCJ’s credibility
determinations and argues that the WCJ incorrectly relied on the accident report that

       5
           R.R. at 27a.
       6
          Our review of an order of the WCAB is limited to a determination of whether the
necessary findings of fact are supported by substantial evidence, whether WCAB procedures were
violated, whether constitutional rights were violated, or whether an error of law was committed.
Walter v. Workers’ Comp. Appeal Bd. (Evangelical Cmty. Hosp.), 128 A.3d 367, 371 n.5 (Pa.
Cmwlth. 2015).
       7
         For the first time on appeal to this Court, Claimant raises the issue of his compliance with
Section 311 of the Act, which requires a claimant to inform his employer of a work injury within
120 days of its occurrence. 77 P.S. §631. This issue is both waived and irrelevant. Employer has
never disputed that Claimant reported his work injury within the required time period.

                                                 6
did not indicate a back injury. Petitioner’s Brief at 11. In his brief, Claimant asserts:
“[t]here is no other reasonable explanation for his back injury other than the fall at
work on June 29, 2015. . . . The fact that he continued to work and did not seek
medical treatment immediately is of no substantial concern and the WCJ’s reliance
on those facts is clearly misplaced.” Petitioner’s Brief at 11.
      The WCJ has complete authority over questions of credibility, conflicting
medical evidence, and evidentiary weight, and can accept or reject the testimony of
any witness, in whole or in part. Lombardo v. Workers’ Comp. Appeal Bd. (Topps
Co., Inc.), 698 A.2d 1378 (Pa. Cmwlth. 1997). The Court will not disturb the WCJ’s
findings if they are supported by substantial and competent evidence. Greenwich
Collieries v. Workmen’s Comp. Appeal Bd. (Buck), 664 A.2d 703 (Pa. Cmwlth.
1995). Substantial evidence has been defined as such relevant evidence that a
reasonable mind might accept as adequate to support a finding. Mrs. Smith’s Frozen
Foods Co. v. Workmen’s Comp. Appeal Bd. (Clouser), 539 A.2d 11 (Pa. Cmwlth.
1988). Pursuant to Section 422(a) of the Act,8 a reasoned decision is one that


      8
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §834. Section 422(a) states:

               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 workers’ compensation
               judge shall specify the evidence upon which the workers’
               compensation judge relies and state the reasons for accepting it in
               conformity with this section. When faced with conflicting evidence,
               the workers’ compensation judge 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 workers’ compensation judge must identify
               that evidence and explain adequately the reasons for its rejection.
               The adjudication shall provide the basis for meaningful appellate
               review. (Emphasis added.)


                                                 7
contains findings of fact and conclusions of law, based on all the evidence, which
clearly and concisely state and explain the rationale for the WCJ’s decision. 77 P.S.
§ 834. In Green v. Workers’ Compensation Appeal Board (US Airways), we
explained:

      The requirement that the WCJ adequately explain his reasons for
      accepting or rejecting evidence protects the parties to a decision by
      ensuring that a legally erroneous basis for a finding will not lie
      undiscovered. For instance, if a WCJ rejects evidence based on an
      erroneous conclusion that testimony is equivocal, or that the evidence
      is hearsay or for some other reason incompetent, such legal error will
      be evident and can be corrected on appeal.

155 A.3d 140, 147 (Pa. Cmwlth.), appeal denied, 169 A.3d 1081 (Pa. 2017) (quoting
PEC Contracting Eng’rs v. Workers’ Comp. Appeal Bd. (Hutchinson), 717 A.2d
1086, 1088-89 (Pa. Cmwlth. 1998)). Thus, Section 422(a) does not require the WCJ
to provide adequate reasons for accepting or rejecting evidence but, rather, an
adequate explanation of his or her reasons. PEC Contracting Eng’rs, 717 A.2d at
1089 n.3. The WCJ’s prerogative to determine the credibility of witnesses and the
weight to be accorded evidence is not subject to appellate review unless such
determinations are made arbitrarily or capriciously. PEC Contracting Eng’rs, 717
A.2d at 1089.
      Here, we find that the WCJ sufficiently explained his findings which were
supported by the evidentiary record. The WCJ accepted as credible Claimant’s
testimony that he injured his elbow at work, but rejected Claimant’s testimony that
he injured his back from the fall. R.R. at 42a. Additionally, the WCJ credited the
testimony of Mr. Hunter, Mr. Alunni and Ms. Homitz, which contradicted
Claimant’s assertions that he reported or sustained a back injury on the day of the
accident, since Claimant never reported any back injuries or pain. Id. at 42a-43a.
According to the WCJ, the testimony of Mr. Alunni and Ms. Homitz “remained

                                         8
consistent and was not shaken on cross-examination.” Id. at 43a. The WCJ found
that Claimant did not indicate any back injuries on his signed accident report and
that there was no evidence that Claimant sought medical treatment for back injuries
until months after the accident. Id. at 42a.
      The WCJ further rejected the testimony of Dr. Oleski because her opinions
were premised on the assumption that Claimant injured his back at work on June 29,
2015, and the WCJ did not find credible evidence that Claimant injured his back on
that date.   Id. at 43a. Additionally, the WCJ further found that “Dr. Oleski
acknowledged that Claimant suffers from degenerative changes in his lumbar spine
unrelated to the injury sustained on June 29, 2015. Dr. Oleski further admitted to
having no personal knowledge of Claimant’s condition prior [to Claimant’s first visit
to Dr. Oleski on] January 26, 2016.” R.R. at 43a.
      The WCJ accepted as credible and persuasive the testimony of Dr. Fras, which
was supported by Dr. Fras’ physical examination of Claimant, Claimant’s medical
history, and the MRI and X-ray reports. Id. at 28a, 43a. The WCJ also concluded
that Claimant failed to establish a causal connection between Claimant’s low back
pain and his elbow injury and any subsequent low back pain. Id. at 43a.
      For these reasons, we find that the WCJ’s decision was neither arbitrary nor
capricious and was based on substantial evidence. Accordingly, we affirm.



                                          _____________________________
                                          ELLEN CEISLER, Judge




                                          9
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Troy Davis,                        :
                 Petitioner        :
                                   :
     v.                            : No. 126 C.D. 2018
                                   :
Workers’ Compensation Appeal       :
Board (CPG International, LLC),    :
                 Respondent        :

                                  ORDER

     AND NOW, this 23rd day of August, 2018, the order of the Workers’
Compensation Appeal Board, dated December 28, 2017, is hereby AFFIRMED.




                                     ________________________________
                                     ELLEN CEISLER, Judge
