           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David Clavin,                           :
                         Petitioner     :
                                        :
            v.                          :         No. 139 C.D. 2016
                                        :         Submitted: July 15, 2016
Workers' Compensation Appeal            :
Board (Oliver Sprinkler Company, Inc.), :
                         Respondent :

BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                              FILED: October 6, 2016

              David Clavin (Claimant) petitions for review of an order of the
Workers' Compensation Appeal Board (Board) that affirmed a Workers'
Compensation Judge’s (WCJ) order denying his penalty petition.                    The WCJ
determined Claimant did not meet his burden of showing Oliver Sprinkler
Company, Inc. (Employer) refused to pay for causally related medical treatment
because the WCJ rejected Claimant’s medical expert’s opinion relating Claimant’s
2013 treatment to his July 2008 work injury.         Claimant contends the WCJ erred in
determining Employer’s unilateral refusal to pay for the 2013 surgery did not
require an award of penalties under Section 435 of the Workers' Compensation
Act1 (Act). Upon review, we affirm.



       1
         Act of June 2, 1915, P.L. 736, as amended, added by the Act of February 8, 1972, P.L.
25, 77 P.S. §991.
                                  I. Background
             In July 2008, Claimant sustained a work-related right shoulder injury.
In August 2008, Employer issued a medical-only notice of compensation payable
(NCP), which described the injury as a right shoulder contusion. In October 2008,
Claimant sustained a second work injury, which Employer acknowledged in a
medical-only NCP as a groin strain.


             Thereafter, Claimant filed claim petitions for both work injuries.
With respect to the October 2008 groin injury, Claimant filed a penalty petition
alleging Employer violated the Act by issuing a medical-only NCP. In response,
Employer filed termination petitions alleging Claimant fully recovered from both
injuries. In a January 2012 decision, WCJ Bonnie B. Callahan (First WCJ) granted
Claimant’s claim petition for a right shoulder injury in the nature of adhesive
capsulitis (frozen shoulder), but suspended benefits as of the date of the July 2008
work injury. First WCJ also granted Claimant’s claim petition for a right groin
strain and awarded Claimant total disability benefits at the weekly rate of $807
beginning in November 2008. First WCJ also granted Claimant’s penalty petition
and awarded a 20% penalty on the amount of outstanding compensation. First
WCJ denied Employer’s termination petitions.


             At issue in the current case is payment for shoulder surgery
undertaken by Claimant in February 2013, almost seven years after the July 2008
work injury, and after the decision by First WCJ, which described the injury as
adhesive capsulitis.




                                         2
            In August 2013, First WCJ approved a compromise and release
(C&R) agreement between the parties describing Claimant’s accepted July 2008
work injury as adhesive capsulitis. The C&R agreement provided for a lump sum
payment of $35,000 for indemnity benefits related only to the right shoulder injury.
Pursuant to the C&R agreement, Employer agreed to pay Claimant’s work-related
medical bills, considered reasonable and necessary, incurred up to August 20,
2013.


            In November 2013, Claimant filed a penalty petition alleging
Employer violated the Act by failing to pay for Claimant’s February 2013 shoulder
surgery. Employer filed an answer denying Claimant’s material allegations and
challenging whether the shoulder surgery was causally related to the 2008 work
injury. The Bureau of Workers’ Compensation assigned this penalty petition to
WCJ Karen Wertheimer (Second WCJ).


            In support of his petition, Claimant submitted a February 2014 report
from Dr. Seth D. Krum (Claimant’s Physician), a board-certified orthopedic
surgeon.   Claimant’s Physician first examined Claimant in January 2011 for
symptoms related to his July 2008 work injury. See Second WCJ’s Op., 10/30/14,
Finding of Fact (F.F.) No. 3. An MRI following the injury confirmed a partial tear
of the rotator cuff. Id. Claimant’s Physician stated he was unsure if the work
injury caused the tear or made it symptomatic.         Id.   Claimant’s symptoms
persisted, and he developed adhesive capsulitis. Id.




                                         3
            Claimant’s Physician also examined Claimant in February 2011,
March 2011 and August 2012. Id. Claimant still complained of persistent pain.
Id. Although Claimant believed he was making progress, Physician felt Claimant
regressed. Id. A December 2012 MRI revealed a proximal biceps rupture and full
thickness tear of the supraspinatus with some retraction. Id. In February 2013,
Claimant’s Physician performed right shoulder surgery, which included extensive
glenohumeral and subacromial debridements with acromioplasty and mini-repair
of the rotator cuff.   Id.   In sum, Claimant’s Physician concluded Claimant
sustained some injury to his right rotator cuff as a result of the July 2008 work
injury, and the right rotator cuff tearing progressed. Id. This necessitated the
February 2013 surgery and related physical therapy. Id.


            Second WCJ also recognized that First WCJ’s January 2012 decision,
admitted into evidence as Exhibit D-2, made findings of fact and conclusions of
law regarding Claimant’s Physician’s prior deposition testimony. In his May 2011
deposition, admitted in the present case as Exhibit D-1, Claimant’s Physician
testified that his official diagnosis of Claimant’s right shoulder work injury was
adhesive capsulitis, also called frozen shoulder. See Dep. of Dr. Krum, 5/20/11
(Krum Dep.), at 11-12, Reproduced Record (R.R.) at 75-76.               On cross-
examination, Claimant’s Physician confirmed that his official diagnosis was
adhesive capsulitis, or frozen shoulder. Krum Dep. at 18; R.R. at 82.


            However, Claimant’s Physician testified that Claimant’s rotator cuff
tear was not causally related to his work injury. Krum Dep. at 18-19; R.R. at 82-




                                         4
83.   Specifically, Claimant’s Physician explained, “he has some rotator cuff
disease, or tendinopathy, but I don’t think that is related to this injury.” Id.


             In the present case, Employer also presented medical reports from two
other physicians, Dr. Donald F. Leatherwood and Dr. Craig Ross. See F.F. Nos. 6,
7. Both physicians opined that Claimant’s rotator cuff surgery was not work
related. F.F. Nos. 6, 7. Ultimately, Second WCJ assigned minimum weight to the
reports of Dr. Leatherwood and Dr. Ross. F.F. No. 9.


             However, Second WCJ also found that Claimant’s Physician did not
resolve the discrepancy between his 2011 testimony and his 2014 report regarding
the causal relationship between Claimant’s 2008 right shoulder injury and his
rotator cuff tear. F.F. No. 9. In 2011, Claimant’s Physician testified he did not
think Claimant’s rotator cuff disease was related to his work injury. Id. However,
in his 2014 report, Claimant’s Physician related Claimant’s rotator cuff disease to
his July 2008 work injury. Id. Nonetheless, in rejecting Claimant’s Physician’s
2014 opinion as to causation, Second WCJ found, “[t]here is no explanation for the
change of opinion, and without that, the undersigned has no choice but to reject his
opinion.” Id. Second WCJ also found “[t]he fact that there was a 17 month gap in
treatment also lends credence to the possibility that there was some other
intervening factor that affected the rotator cuff disease.” Id.


             For these reasons, the Second WCJ determined that Claimant failed to
establish that his 2013 surgery and related physical therapy were causally related to
his July 2008 work injury. F.F. No. 11; Concl. of Law No. 2.



                                           5
              Claimant appealed, and the Board affirmed, noting Second WCJ
adequately explained her reasons for not crediting Claimant’s Physician’s 2014
report. Claimant petitions for review.2


                                       II. Discussion
                                       A. Argument
              Claimant contends Second WCJ’s refusal to impose penalties in this
case constitutes reversible error. First, Claimant asserts Employer’s unilateral
refusal to pay for his 2013 surgery and related physical therapy costs, which total
approximately $65,000, circumvented the Act’s utilization review procedures.
Pet’r’s Br. at 7. Once it is determined an employer is liable for an injury under the
Act, the employer is required to pay a claimant’s medical bills within 30 days of
receipt. Westinghouse Elec. Corp. v. Workers’ Comp. Appeal Bd. (Weaver), 823
A.2d 209 (Pa. Cmwlth. 2003). Any disputes as to the reasonableness or necessity
of treatment must be resolved through the utilization review process under Section
306(f.1)(6) of the Act, 77 P.S. §531(6). Westinghouse Elec.


              Further, Claimant posits, the Act does not give an employer the right
to self-help by permitting the employer to unilaterally refuse to pay benefits. City
of Phila. v. Workers' Comp Appeal Bd. (Sherlock), 934 A.2d 156 (Pa. Cmwlth.
2007). Nonetheless, Claimant acknowledges, an employer that questions causation
may escape liability for penalties for non-payment of medical bills if a WCJ later

       2
         Our review is limited to determining whether the WCJ’s findings of fact were supported
by substantial evidence, whether an error of law was committed or whether constitutional rights
were violated. Phoenixville Hosp. v. Workers’ Comp. Appeal Bd. (Shoap), 81 A.3d 830 (Pa.
2013).



                                              6
determines that the medical bills at issue were not causally related to the work
injury. Listino v. Workmen's Comp. Appeal Bd. (INA Life Ins. Co.), 659 A.2d 45
(Pa. Cmwlth. 1995). However, this Court also reasoned in Listino that if an
employer unilaterally ceases to pay medical costs based on an alleged lack of
causation and the WCJ determines the medical bills to be work-related, the
employer assumes the risk of penalties under the Act. Id.


            Here, Claimant asserts, the record reflects he sustained no prior or
intervening injuries, other than the July 2008 work injury, which could account for
his right shoulder injury and rotator cuff tear. Moreover, Claimant’s Physician
testified in his May 2011 deposition that a report from a September 2008 MRI
indicated Claimant had supraspinatus tendinopathy or some partial tearing and that
there was fluid within the subacromial bursa.       Krum Dep. at 8; R.R. at 72.
Claimant’s Physician gave Claimant an injection in the subacromial space for his
rotator cuff condition. Krum Dep. at 14; R.R. at 78.


            Claimant argues his Physician’s February 2014 report also recognized
that the MRI following his work injury confirmed a partial tear of the rotator cuff.
See Report of Dr. Krum, 2/23/14 (Krum Report) at 1; R.R. at 61. Claimant’s
partial tear continued to worsen, which resulted in his Physician’s request for an
MRI in February 2011. This MRI revealed tendinopathy and a partial thickness
tearing of the supraspinatus. Krum Report at 2; R.R. at 62.


            Thereafter, a December 2012 MRI revealed Claimant had a proximal
biceps rupture and a full thickness tear of the supraspinatus with some retraction.



                                         7
Krum Report at 2; R.R. at 62. In January 2013, Claimant’s Physician re-evaluated
Claimant and recommended operative intervention. Id. On February 5, 2013,
Claimant’s Physician performed an arthroscopic examination of the right shoulder,
extensive glenohumeral and subacromial debridements with acromioplasty, and a
mini-open repair of the rotator cuff. Id. Following surgery, Claimant progressed
well with physical therapy modalities. Id.


             Summarizing, Claimant asserts Claimant’s Physician found a partial
rotator cuff tear in early 2011 in an MRI taken shortly after Claimant’s injury.
However, Claimant’s more immediate and pressing condition was adhesive
capsulitis. Nonetheless, Claimant’s Physician initially treated Claimant’s rotator
cuff tear with injections. After realizing that conservative treatment did not help
Claimant to recover, Claimant’s Physician ordered a December 2012 MRI, which
revealed a full thickness tear. Claimant’s Physician then performed arthroscopic
surgery and rotator cuff repair. Ultimately, Claimant’s Physician opined, within a
reasonable degree of medical certainty, that Claimant did sustain an injury to his
rotator cuff as a result of the July 2008 work injury. Krum Report at 2; R.R. at 62.
In short, Claimant’s shoulder symptoms persisted and his right rotator cuff tearing
progressed, necessitating the 2013 surgery. Krum Report at 2-3; R.R. at 62-63.


             Claimant therefore contends the evidence demonstrates his 2013
surgery was causally related to his July 2008 work injury. Claimant argues that the
WCJ’s contrary determination and failure to impose penalties constituted an abuse
of discretion and reversible error.




                                         8
                                    B. Analysis
             Pursuant to Section 435(d) of the Act, 77 P.S. §991(d), a WCJ is
authorized to impose penalties for violations of the Act. Westinghouse Elec. The
assessment of penalties, and the amount of penalties, is discretionary. Id. Absent
an abuse of discretion by the WCJ, we will not overturn the denial or grant of a
penalty on appeal. Id.


             In a penalty petition, the claimant bears the initial burden of
presenting evidence sufficient to establish a violation of the Act.       Shuster v.
Workers' Comp. Appeal Bd. (Pa. Human Relations Comm’n), 745 A.2d 1282 (Pa.
Cmwlth. 2000). If the claimant fails to meet this burden, the penalty petition must
be denied.    Sanders v. Workers’ Comp. Appeal Bd. (Pa. Human Relations
Comm’n), 756 A.2d 129 (Pa. Cmwlth. 2000).


             As discussed above, the Act requires an employer to pay for
reasonable and necessary medical expenses that are causally related to the work
injury. Listino. However, if the claimant’s medical expenses are not related to a
work injury, the employer is not required to pay for them and is not subject to a
penalty for nonpayment. Id. To that end, if the WCJ determines the medical bills
submitted by the claimant in support of his penalty petition are not work-related, it
is proper for the WCJ to dismiss the penalty petition. Buchanan v. Workmen’s
Comp. Appeal Bd. (Mifflin Cnty. Sch. Dist.), 648 A.2d 99 (Pa. Cmwlth. 1994).


             Also, in workers’ compensation cases, the WCJ is the ultimate fact-
finder and has exclusive province over questions of credibility and evidentiary



                                         9
weight. A&J Builders, Inc. v. Workers' Comp. Appeal Bd. (Verdi), 78 A.3d 1233
(Pa. Cmwlth. 2013). The WCJ may accept the testimony of any witness, including
a medical witness, in whole or in part. Id. We are bound by the WCJ’s credibility
determinations. Id.


            Moreover, it is irrelevant whether the record contains evidence that
supports findings other than those made by the WCJ; the crucial inquiry is whether
the evidence supports the findings actually made. Id. Therefore, we must examine
the entire record to see if it contains evidence a reasonable person might find
sufficient to support the WCJ’s findings. Id. If the record contains such evidence,
the findings must be upheld, even though the record may contain conflicting
evidence. Id. Additionally, we must view the evidence in the light most favorable
to the prevailing party and give it the benefit of all inferences reasonably deduced
from the evidence. Wagner v. Workers’ Comp. Appeal Bd. (Anthony Wagner
Auto Repairs & Sales, Inc.), 45 A.3d 461 (Pa. Cmwlth. 2012).


            Here, Second WCJ specifically found Claimant’s 2013 surgery and
related physical therapy were not causally related to Claimant’s right shoulder
work injury, described in the applicable NCP and in First WCJ’s decision, as
“adhesive capsulitis.” Second WCJ Op., F.F. Nos. 1, 11. In support of her
decision, Second WCJ noted Claimant’s Physician’s acknowledgement in his 2011
deposition that Claimant had some rotator cuff disease or tendinopathy, but he did
not think it was related to Claimant’s work injury. F.F. No. 5; Krum Dep. at 18-
19; R.R. at 82-83.




                                        10
             Nonetheless, Second WCJ acknowledged that Claimant’s Physician
later opined in his 2014 report that Claimant did sustain some injury to his right
rotator cuff as a result of his July 2008 work injury, and that the right rotator cuff
tearing progressed and resulted in the need for the 2013 surgery. F.F. No. 3.
However, Second WCJ rejected Claimant’s Physician’s 2014 report opinions as
not credible because the doctor did not adequately explain the reasons for changing
his opinion. F.F. No. 9.


             Here, on appeal, Claimant argues his Physician indicated in his 2011
deposition that Claimant sustained a work-related partial rotator cuff tear, but
considered Claimant’s adhesive capsulitis to be the more immediate and pressing
condition. We disagree with Claimant’s interpretation of the evidence. To the
contrary, Claimant’s Physician stated he did not think Claimant’s rotator cuff
disease or tendinopathy was causally related to his work injury. Krum Dep. at 17-
18; R.R. at 82-83. In addition, Claimant’s Physician does not explain in his 2014
report why he changed his opinions as to causation and now considered Claimant’s
rotator cuff tear related to his 2008 work injury. These inconsistencies provide an
objective basis for Second WCJ’s credibility determinations. Daniels v. Workers’
Comp. Appeal Bd. (Tristate Transp.), 828 A.2d 1043 (Pa. 2003); Dorsey v.
Workers’ Comp. Appeal Bd. (Crossing Constr. Co.), 893 A.2d 191 (Pa. Cmwlth.
2006).


             In short, Second WCJ rejected Claimant’s Physician’s revised opinion
that Claimant’s right rotator cuff tear, which he found to be non-work-related in
2011, to now be work-related. As noted, Second WCJ, as fact-finder, is free to



                                         11
accept or reject the testimony of any medical witness, in whole or in part. A&J
Builders. Further, matters of credibility and evidentiary weight are within the
WCJ’s sole discretion.       Id.   Viewing the record in a light most favorable to
Employer as the prevailing party, we see no abuse of discretion in Second WCJ’s
denial of Claimant’s penalty petition.3 Westinghouse Elec., Sanders, Shuster.


              For the above reasons, we affirm the Board’s order upholding Second
WCJ’s order denial of Claimant’s penalty petition.




                                          ROBERT SIMPSON, Judge




       3
         We also note that even if Second WCJ found Claimant’s right rotator cuff tear to be
work-related, this would not mandate the imposition of penalties. Delarosa v. Workers’ Comp.
Appeal Bd. (Masonic Homes), 934 A.2d 165 (Pa. Cmwlth. 2007). To the contrary, the
imposition of penalties would still fall within Second WCJ’s discretion. Id.



                                            12
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David Clavin,                           :
                         Petitioner     :
                                        :
            v.                          :   No. 139 C.D. 2016
                                        :
Workers' Compensation Appeal            :
Board (Oliver Sprinkler Company, Inc.), :
                         Respondent :


                                   ORDER

            AND NOW, this 6th day of October, 2016, for the reasons stated in
the foregoing opinion, the order of the Workers' Compensation Appeal Board is
AFFIRMED.




                                     ROBERT SIMPSON, Judge
