           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


US Airways, Inc., through its insurer       :
New Hampshire Insurance Company             :
and Sedgwick Claims Management              :
Services,                                   :
                   Petitioners              :
                                            :
              v.                            : No. 1476 C.D. 2017
                                            : Submitted: March 16, 2018
Workers’ Compensation Appeal                :
Board (Uram),                               :
                Respondent                  :


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                                      FILED: April 9, 2018


              American Airlines, Inc., previously U.S. Airways, Inc., (Employer)
petitions for review of the Workers’ Compensation Appeal Board’s (Board)
decision affirming a workers’ compensation judge’s (WCJ) order granting Michael
Uram’s (Claimant) Review Petition to amend his work injury to include an
aggravation of avascular necrosis and degenerative joint disease1 as well as

       1
         Avascular necrosis is the pathologic death of a portion of tissue due to deficient blood
supply, resulting in irreversible damage. Stedman’s Medical Dictionary, 25th Edition, Williams
& Wilkins (1990), pp. 1026 - 1027.
affirming the denial of Employer’s Termination and Suspension Petition. For the
following reasons, we affirm.


                                        I.
            Claimant began employment with Employer in 1979 as a ramp
agent/baggage handler. In December 2014, Claimant suffered a work injury and
was unable to work from January 19, 2015, to June 22, 2015.           A Notice of
Temporary Compensation Payable was issued describing the injury as a “right
groin sprain/strain.” (Reproduced Record (R.R.) at 1a.) Following Claimant’s
return to work, the Department of Labor & Industry (Department) issued a
Notification of Suspension. Claimant then filed an Employee Challenge to the
Notification of Suspension.


            On September 18, 2015, Employer filed a Termination and
Suspension Petition alleging that Claimant was fully recovered and capable of
returning to work without restriction. On November 2, 2015, the parties entered
into a Supplemental Agreement providing that Claimant was restricted by his
treating physician to working 40 hours per week without overtime. Claimant was
to receive weekly partial disability benefits in the amount of $512.63 to
compensate him for the loss of overtime wages. The Supplemental Agreement
only resolved the Employee Challenge and did not address Employer’s
Termination and Suspension Petition.


            On December 11, 2015, Claimant filed a Petition to Review seeking
to amend the description of his work injury to include an aggravation of underlying



                                        2
avascular necrosis and early degenerative joint disease of the right hip. Employer
filed an answer denying all material averments.


             Before the WCJ, Claimant testified that he was working in the area
where the bags came down from the ticket counter onto a carousel. When he lifted
a bag off the carousel to put it on the top shelf of a baggage cart, he twisted and felt
a pull in his hip. He went on to testify that he still experiences jabbing and
shooting pains down his leg, back and buttocks and that it increases with activity.


             To support the notion that the injury was work-related, Claimant’s
treating physician, Michael R. Pagnotto, M.D. (Dr. Pagnotto), a board certified
orthopedic surgeon who specializes in the treatment of hip and knee arthritis,
testified that Claimant’s right hip injury was caused by avascular necrosis, opining:

             Yes, I felt that this was a right hip avascular necrosis
             with a small area of femoral head collapse.

             At that time, I felt that this avascular necrosis was
             aggravated by his work-related injury, which caused the
             small fracture of the femoral head, which is – you know
             we use the word fracture here, but really when you have
             avascular necrosis, you have bone that has lost its blood
             supply and so what you are really looking at is collapse.
             When the bone loses its blood supply, the bone can start
             to crumble. So most people, when they hear fracture,
             they think you know that you broke a bone in a car
             accident or you know fell and twisted, but this is more of
             what I was referring to in my note, that he had this small
             area of, small quote fracture in the femoral head.

             I said given that his mechanism, that it didn’t make sense
             that he would truly have an acute fracture as much as
             avascular necrosis with a little bit of collapse.


                                           3
(R.R. at 109a-110a.) He went on to testify that it was not a groin sprain or strain
because the MRI did not show any evidence of an injury to Claimant’s muscles,
but it did show evidence of an injury to his femoral head, which was an
aggravation of his underlying avascular necrosis.


             Regarding Dr. Pagnotto’s recommendation that Claimant be restricted
to working no more than 40 hours per week, the doctor testified that two MRIs
showed significant hip pathology and that working more than 40 hours per week
would aggravate Claimant’s hip and cause him pain.


             In opposition, Employer offered the testimony of William D.
Abraham, M.D. (Dr. Abraham), also a board certified orthopedic surgeon. Based
on his examination, Dr. Abraham disagreed with Dr. Pagnotto’s diagnosis that
Claimant’s condition was the result of his avascular necrosis having been
aggravated at work. He did not deny that Claimant had both degenerative joint
disease and avascular necrosis, but opined that both conditions were pre-existing
and that there was no evidence that the work injury aggravated or substantially
changed the prognosis of those pre-existing conditions. Dr. Abraham opined that
the injury could best be described as a groin sprain or strain. He then explained
how he arrived at the conclusion that the work injury did not affect the avascular
necrosis or the underlying degenerative joint disease.

             [I]t’s my opinion, so we can all accept that it’s an
             opinion, and to look at that and sort of make a
             conclusion, but I think it would make sense, and here’s
             my rationale, one was that I don’t think there’s any
             denying that these particular conditions were pre-existing
             this date. There’s certainly nothing about lifting bags on


                                         4
            that particular day that caused arthritis, we can all accept
            that that’s a process that’s been ongoing for a long period
            of time. And similarly, the avascular necrosis is not a
            process that would be created as a result of lifting a fifty-
            or sixty-pound bag. So I think that to me those are
            givens. So then the real question is what happened on
            that particular day and was there anything to suggest that
            he had anything more than a groin strain? And I arrived
            at that diagnosis based really on sort of a generic
            sense that this gentleman had lifted, he had what I
            would describe as a soft-tissue injury, that’s the strain
            in the groin, that’s where he had his pain, and that
            injury, as I said, went on to satisfactory recovery.


(R.R. at 181a-182a) (emphasis added).


            The WCJ denied Employer’s Termination and Suspension Petition
and granted Claimant’s Petition to Review. In so doing, the WCJ accepted the
testimony of Dr. Pagnotto to be more credible than Dr. Abraham’s testimony. The
WCJ rejected Dr. Abraham’s testimony where it conflicted with Dr. Pagnotto. In
finding Dr. Abraham to be less credible, the WCJ noted that Dr. Abraham only
examined Claimant once and diagnosed him with a groin strain even though the
diagnostic studies did not support this opinion. The WCJ also noted that Dr.
Abraham repeatedly discussed how the condition of avascular necrosis was not
caused by the work injury even though that was not at issue, the true issue being
whether Claimant’s pre-existing injury was aggravated by the work injury.




                                         5
              Employer appealed the WCJ’s decision and the Board affirmed. This
petition for review followed.2


                                            II.
                                            A.
              Employer argues that the WCJ erred by capriciously disregarding the
substantial competent evidence presented by Employer’s expert, Dr. Abraham, and
instead relied upon the equivocal and legally incompetent opinions of Claimant’s
expert, Dr. Pagnotto, in finding that Claimant had met his burden of proof.


              What Employer’s argument ignores is that it is not within our scope of
review to judge the probative value of testimony even if, on the same record, we
might reach a different result.       American Chain & Cable Co. v. Workmen’s
Compensation Appeal Board, 391 A.2d 50 (Pa. Cmwlth. 1978). As we have held
repeatedly, it is up to the WCJ to determine the credibility and weight of the
evidence presented.         Container Corporation of America v. Workmen’s
Compensation Appeal Board, 429 A.2d 1264, 1267 (Pa. Cmwlth. 1981). In so
doing, the WCJ may accept or reject the testimony of any witness in whole or in
part, including the testimony of medical witnesses. Id.




       2
          Our scope of review is limited to determining whether constitutional rights were
violated, whether an error of law was committed, or whether a necessary finding of fact was
unsupported by substantial evidence. American Refrigerator Equipment Company v. Workmen’s
Compensation Appeal Board, 377 A.2d 1007 (Pa. Cmwlth. 1977).




                                            6
               Because we may not reweigh evidence and because it was fully within
the WCJ’s power to make the credibility determinations she made as well as to
assign the proper weight of the evidence presented based upon those
determinations, we may not disturb a WCJ’s decision if substantial evidence
supports those findings.


                                                B.
               Employer contends that there is not substantial evidence to support the
WCJ’s denial of its Termination and Suspension Petition because Dr. Pagnotto’s
testimony that Claimant has not fully recovered from his work-related injury is
equivocal.3     Employer notes that it is undisputed that the MRIs and X-rays
indicated that by April 2015, any sign of fracture or bone collapse attributed to the
work injury had resolved itself and, therefore, the WCJ should have granted the
Termination and Suspension Petition.


               Employer contends that the only reason its Termination and
Suspension Petition was not granted was because the WCJ relied on Dr. Pagnotto’s

       3
         An employer seeking to terminate workers’ compensation benefits bears the burden of
proving either that the employee’s disability has ceased or that any current disability arises from
a cause unrelated to the employee’s work injury. Udvari v. Workmen’s Compensation Appeal
Board (USAir, Inc.), 705 A.2d 1290, 1293 (Pa. 1997). The employer meets this burden when its

               medical expert unequivocally testified that it is his opinion, within
               a reasonable degree of medical certainty, that the claimant is fully
               recovered, can return to work without restrictions and that there are
               no objective medical findings which either substantiate the claims
               of pain or connect them to the work injury.

Id.



                                                7
equivocal testimony. For example, when asked if there was any evidence of
fracture or collapse in Claimant’s hip, Dr. Pagnotto answered: “So, there was no
evidence of ongoing fracture, yes. I would argue that he probably still had some
degree of collapse because it’s pretty rare that someone who has a small area of
collapse spontaneously heals that.”      (R.R. at 139a.)   Employer contends that
testimony such as this, that Claimant “probably still had some degree of collapse,”
renders Dr. Pagnotto’s entire testimony equivocal because it is not sufficiently
definitive and, therefore, it is incompetent.


             Medical testimony is incompetent if it is equivocal. Kurtz v. Workers’
Compensation Appeal Board (Waynesburg College), 794 A.2d 443 (Pa. Cmwlth.
2002). A court will find medical testimony to be unequivocal and competent if the
medical expert, after providing a foundation, testifies that in his professional
opinion, he believes a certain fact or condition exists.     Johnson v. Workers’
Compensation Appeal Board (Abington Memorial Hospital), 816 A.2d 1262, 1267
(Pa. Cmwlth. 2003). A court will consider medical testimony equivocal if it is
found to be based upon mere possibilities. Signorini v. Workmen’s Compensation
Appeal Board (United Parcel Service), 664 A.2d 672 (Pa. Cmwlth. 1995). In
determining whether medical testimony is unequivocal, the medical witness’s
entire testimony must be reviewed and taken as a whole. Indian Creek Supply v.
Workers’ Compensation Appeal Board (Anderson), 729 A.2d 157, 160 (Pa.
Cmwlth. 1999). Whether medical testimony is unequivocal is a question of law
fully reviewable on appeal. Johnson, 816 A.2d at 1267.




                                           8
             The use of terms such as “might have been,” “could have been,” or
“probably” is an indicator that the offered opinion is equivocal.           Lewis v.
Workmen’s Compensation Appeal Board (Pittsburgh Board of Education), 472
A.2d 1176, 1178 (Pa. Cmwlth. 1984). However, there is no requirement that every
utterance which escapes the lips of a medical witness on a medical subject must be
certain, positive and without reservation, exception or peradventure of doubt.
Heath v. Workmen’s Compensation Appeal Board (Agway, Inc.), 514 A.2d 1021,
1023 (Pa. Cmwlth. 1986). The claimant has produced competent evidence to
support an award even if the medical witness admits to uncertainty, reservation or
lack of information with respect to specific details, so long as the expert does not
recant the opinion or belief first expressed. Philadelphia College of Osteopathic
Medicine v. Workmen’s Compensation Appeal Board (Lucas), 465 A.2d 132 (Pa.
Cmwlth. 1983).


             Although Dr. Pagnotto’s statement that he “would argue [Claimant]
probably still had some degree of collapse” is equivocal, it is an isolated statement.
Throughout his testimony, Dr. Pagnotto consistently opined that Claimant’s work
injury caused an aggravation of pre-existing avascular necrosis with secondary
degenerative joint disease, which would render a 40 hour per week limitation a
reasonable accommodation. Furthermore, Dr. Pagnotto never recanted his medical
opinion. Therefore, Dr. Pagnotto’s testimony was unequivocal and competent.




                                          9
                                         C.
             Employer also argues that the WCJ did not issue a reasoned decision
because she failed to address competent conflicting evidence and reconcile the
material contradictions in the record.


             When faced with conflicting evidence, the WCJ must adequately
explain the reasons for rejecting or discrediting competent evidence. Daniels v.
Workers’ Compensation Appeal Board (Tristate Transport), 828 A.2d 1043, 1047
(Pa. 2003). A reasoned decision includes an explanation of why certain testimony
is rejected and other testimony is accepted. See PEC Contracting Engineers v.
Workers’ Compensation Appeal Board (Hutchison), 717 A.2d 1086, 1088 (Pa.
Cmwlth. 1998) (holding that the decision was reasoned where the WCJ credited
claimant’s medical expert because of his experience and familiarity with treating
claimant, and rejected the testimony of employer’s medical expert because the
expert only saw the claimant twice).


             In this case, the WCJ clearly explained her reasons for finding
Claimant’s expert more credible than Employer’s, including the fact that
Claimant’s expert was his treating physician who had seen Claimant on many
different occasions and Employer’s expert only saw him once. In doing so, the
WCJ reasoned:

             Dr. Pagnotto has had the benefit of evaluating and
             treating the Claimant on multiple occasions since
             February 19, 2015. I note that both doctors agreed that
             the Claimant’s avascular necrosis pre-existed the work
             injury and was not directly caused by the work injury.
             However, the Claimant was asymptomatic and unaware


                                         10
             that he even had avascular necrosis prior to the work
             injury. Dr. Pagnotto credibly opined that the Claimant
             suffered an aggravation to his pre-existing avascular
             necrosis as a result of the work injury that occurred on
             December 29, 2014, and that the aggravation of that
             condition continues. He credibly explained how the MRI
             findings support his opinion. In fact, he noticed a
             discrepancy between the reading of the MRI and that of
             the radiologist, who originally noted a fracture. Dr.
             Pagnotto credibly explained that Claimant did not
             actually have a fracture, in the traditional meaning, but
             rather a femoral head collapse which supports his opinion
             that there was aggravation of the avascular necrosis. Dr.
             Pagnotto credibly explained that although the mechanism
             of injury was a relatively low energy event, it was
             enough to cause the femoral head collapse that was
             evident on the MRIs, because the Claimant’s hip was
             already bad due to the underlying avascular necrosis and
             arthritis.


(R.R. at 236a.)


             The WCJ also reasoned that both Dr. Pagnotto and Dr. Abraham
agreed that Claimant suffered from avascular necrosis, but Dr. Abraham’s core
argument – that the avascular necrosis was not caused by a work injury – was
irrelevant in this matter as the question was whether the avascular necrosis was
aggravated by the work injury.


             Given that the WCJ adequately explained why she accepted
Claimant’s expert as more credible than Employer’s expert, her opinion, without
further elucidation, allows us to conduct adequate appellate review and, therefore,
the decision is reasoned.




                                        11
For the foregoing reasons, we affirm the Board’s decision.



                         ________________________________
                         DAN PELLEGRINI, Senior Judge




                           12
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


US Airways, Inc., through its insurer   :
New Hampshire Insurance Company         :
and Sedgwick Claims Management          :
Services,                               :
                   Petitioners          :
                                        :
            v.                          : No. 1476 C.D. 2017
                                        :
Workers’ Compensation Appeal            :
Board (Uram),                           :
                Respondent              :




                                    ORDER


            AND NOW, this 9th day of April, 2018, the Workers’ Compensation
Appeal Board’s order dated September 22, 2017, is affirmed.



                                        ________________________________
                                        DAN PELLEGRINI, Senior Judge
