         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Southeastern Pennsylvania         :
Transportation Authority (SEPTA), :
                                  :
                       Petitioner :
                                  :
           v.                     : No. 416 C.D. 2017
                                  : Submitted: July 21, 2017
Workers' Compensation Appeal      :
Board (Woody),                    :
                                  :
                       Respondent :


BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                    FILED: September 21, 2017

            Southeastern Pennsylvania Transportation Authority (Employer)
petitions for review from an order of the Workers’ Compensation Appeal Board
(Board) that affirmed, as modified, a Workers’ Compensation Judge’s (WCJ)
decision granting Eric Woody’s (Claimant) reinstatement petition for a closed
period and expanding the description of his work injury. Employer contends that
Claimant’s medical evidence was equivocal and not competent to support an
expansion of the injury and that the WCJ capriciously disregarded evidence and
failed to provide a reasoned decision. Upon review, we affirm.
                                  I. Background
            On December 16, 2014, Claimant sustained a work-related injury
while in the course and scope of his duties as a general helper. Employer issued a
notice of compensation payable (NCP) accepting the injury described as a
lumbosacral strain. Shortly thereafter, Claimant’s benefits were modified to reflect
reduced earnings following his return to work. In July 2015, Claimant filed a
reinstatement petition, alleging that, as of March 30, 2015, he sustained a
worsening of his condition, which caused decreased earning power. Employer
filed an answer denying the material allegations. Hearings before a WCJ ensued.
            During the course of proceedings, Claimant returned to work in a
light-duty capacity on January 4, 2016. The parties continued to litigate the issue
of Claimant's entitlement to a reinstatement of benefits from March 30, 2015
through January 4, 2016. WCJ’s Opinion, 10/11/16, Finding of Fact (F.F.) No. 4.
            In support of his reinstatement petition, Claimant submitted his
deposition. He testified that he was out of work for a few weeks after his injury.
He returned to work mid-January 2015, based on a job offer described as
wheelchair lift checker and blocking assistant position. But, the job to which he
returned entailed “walking up and down the bays in the cold with T-key locking
the backs of doors and checking inspection stickers on the back of buses.” F.F.
No. 5. Claimant performed this position for two months. He was released to
return to full-duty work during the last week of March 2015. However, Claimant
did not feel capable of returning to work full duty because his range of motion was
not good. He saw his family doctor, Bruce Williams, D.O. (Dr. Williams), on
March 30, 2015, who restricted Claimant from returning to his full-duty position.
Employer did not offer him modified work; the only job available was his full-duty


                                         2
position. As a result, Claimant was out of work from March 30, 2015 through
January 4, 2016. F.F. Nos. 4-5.
             In addition, Claimant presented the deposition testimony of his
treating physician, Vincent J. DiStefano, M.D. (Dr. DiStefano), who is board
certified in orthopedic medicine. Dr. DiStefano first treated Claimant on August 4,
2015. He took a history from Claimant. At the time, Claimant complained of
chronic pain in the low back to the left of midline, associated morning stiffness,
and popping with reduced mobility. He performed a physical examination and
reviewed the February 13, 2015 and June 30, 2015 MRIs of the lumbar spine. Dr.
DiStefano initially diagnosed Claimant with an acute strain and sprain of the
lumbar spine and an aggravation of pre-existing L4-L5 and L5-S1 right disc
protrusion, as a direct result of the December 16, 2014 work injury. He opined that
it was unlikely for Claimant to ever return to his pre-injury position which
involved heavy lifting, upwards of 150 pounds, recommending instead a light-duty
job with limitations on his lifting. Dr. DiStefano saw Claimant on November 3,
2015 and recommended EMG testing and pain management. The EMG revealed
bilateral L4 and L5 radiculopathy. Based on the EMG, he thought it more likely
that the disc herniations were symptomatic and causing radiculitis. He explained
that the disc herniations or protrusions seen on the MRI are impinging on the L4
and L5 nerve roots, as demonstrated by the EMG. Dr. DiStefano maintained
Claimant's restrictions previously imposed and opined that the restrictions are
related to the work injury. F.F. No. 6.
             Claimant submitted Armando A. Mendez, M.D.’s (Dr. Mendez)
independent medical evaluation, dated July 31, 2015, in which Dr. Mendez
diagnosed Claimant with a lumbar spine sprain and strain and an L4-5 and L5-S1


                                          3
disc herniation, based on his review of the MRI report. He recommended further
treatment, released Claimant to modified-duty work on a full-time basis with
restrictions, and prohibited him from driving a bus or operating heavy equipment.
F.F. No. 7.
              Claimant also submitted the deposition of Daisy Zayas, an insurance
claims adjuster. She confirmed that Employer did not permit Claimant to continue
working as of March 30, 2015, based on the opinion of Dr. Williams that Claimant
was unable to resume full-duty work. F.F. No. 8.
              Employer presented evidence including a packet of medical records
confirming that Claimant received treatment with Employer’s medical panel for
the work-related injury; a work-status summary form; a three-page document
authored by Dr. Williams; an attachment to Dr. DiStefano’s deposition releasing
Claimant to modified work as of August 4, 2015; and, Ms. Zayas’ log notes.
Employer did not present evidence refuting the medical testimony offered. F.F.
Nos. 9-12.
              Based on the evidence presented, the WCJ found that Claimant was
forced to stop working as of March 30, 2015, through January 4, 2016, as a direct
result of his work injury. Although Claimant was released to modified-duty work
as early as June 2015, Employer did not make modified duty work available to
Claimant within his physical restrictions until January 4, 2016. F.F. No. 13. The
December 16, 2014 work-related injury caused Claimant to suffer a total loss of
earning power from March 30, 2015 through January 4, 2016. F.F. No. 16.
              In addition, upon review of the unrefuted opinions of Dr. DiStefano,
the WCJ found that “the description of the work-related injury must be amended to
include an aggravation of pre-existing L4-L5 and L5-S1 right disc protrusion,


                                         4
resulting in bilateral L4 and L5 radiculopathy, as a direct result of the December
16, 2014 work injury.” F.F. No. 14. The WCJ found that “Dr. DiStefano offered
his opinions as a treating physician and based his opinions on his examination
findings and his review of the post-injury objective diagnostic evidence, and
provided a sound, cogent explanation to support his causal opinions.” F.F. No. 14.
                Ultimately, the WCJ granted Claimant’s reinstatement petition,
expanded the description of the work injury to include an aggravation of pre-
existing L4-L5 and L5-S1 right disc protrusions, resulting in bilateral L4 and L5
radiculopathy, and awarded temporary total disability benefits for a closed period.
                From this decision, Employer appealed to the Board.       Employer
argued that the WCJ improperly omitted the word “right” from the description of
the L5 radiculopathy injury. It also asserted that the WCJ erred by expanding the
injury description to include an aggravation of a pre-existing injury on the basis it
is not supported by unequivocal medical evidence. Finally, it argued that the
WCJ’s opinion was not reasoned because the WCJ capriciously disregarded
relevant evidence, including Claimant’s own testimony.
                The Board agreed in part on the basis that the WCJ’s finding omitted
the word “right” from Dr. DiStefano’s description of the injury.         The Board
modified the decision “to reflect an expansion of the injury description to include
aggravation of pre-existing L4-L5 and L5-S1 right disc protrusions, resulting in
bilateral L4 and right L5 radiculopathy.” Board Opinion, 3/7/17, at 10 (emphasis
in original).     Insofar as Employer argued that Dr. DiStefano’s testimony was
equivocal because he used language such as “possible,” “possibly,” and “difficult
to assign a temporal relationship,” in rendering his opinion and gave certain
concessions during cross examination, the Board rejected this argument, finding


                                           5
that Dr. DiStefano’s testimony, when read in its entirety, was unequivocal.
Finally, the Board determined that the WCJ rendered a reasoned decision that
contained findings of fact and conclusions of law and set forth the rationale for his
decision. Because the issue of expanding the description of Claimant’s injury
involved a medical causation issue requiring expert testimony, the fact that the
WCJ did not summarize all of Claimant’s lay testimony regarding his
symptomology did not make his decision unreasoned or constitute a capricious
disregard of relevant evidence. Employer then petitioned this Court for review.1


                                          II. Issues
              On appeal, Employer does not contest the determination granting the
reinstatement petition. Rather, Employer challenges the expansion of the injury
description. Employer contends that substantial, competent evidence does not
support the expansion of the injury because Dr. DiStefano’s testimony was
equivocal. In addition, Employer contends that the WCJ did not issue a reasoned
decision because he disregarded evidence regarding Claimant’s injury.




       1
         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. Department of Transportation v. Workers' Compensation Appeal Board
(Clippinger), 38 A.3d 1037 (Pa. Cmwlth. 2011). The appellate role in a workers' compensation
case is not to reweigh the evidence or review the credibility of witnesses, but to determine
whether the WCJ's findings have the requisite measure of support in the record as a whole.
Bethenergy Mines, Inc. v. Workmen's Compensation Appeal Board (Skirpan), 612 A.2d 434, 436
(Pa. 1992).


                                              6
                                     III. Discussion
                              A. Unequivocal Medical Evidence
                First, Employer contends that the WCJ erred by accepting the medical
opinions of Dr. DiStefano because his opinions are equivocal and thus, not
competent evidence upon which to base a conclusion that Claimant’s work-related
injury includes an aggravation of pre-existing L4-L5 and L5-S1 right disc
protrusions, resulting in bilateral L4 and right L5 radiculopathy.
                Under Section 413(a) of the Workers' Compensation Act (Act),2 the
WCJ may amend the NCP at any time during litigation of any petition if the
evidence shows that the injury sustained in the original work incident is materially
incorrect, or upon proof that the disability of the injured employee has increased,
decreased, recurred, or ceased in the context of a specific review petition. Cinram
Manufacturing, Inc. v. Workers' Compensation Appeal Board (Hill), 975 A.2d 577,
580-81 (Pa. 2009). A claimant seeking to expand the description of the NCP bears
the burden of proof. Id. at 582.
                Where there is no obvious connection between disability and the
work-related cause, unequivocal medical evidence is required. Lewis v. Workmen's
Compensation Appeal Board (Pittsburgh Board of Education), 498 A.2d 800, 802
(Pa. 1985); City of Pittsburgh v. Workers' Compensation Appeal Board (Wilson),
11 A.3d 1071, 1075 (Pa. Cmwlth. 2011). To be unequivocal, “the medical witness
must testify, not that the injury or condition might have or possibly came from the
assigned cause, but that in his professional opinion the result in question did come
from the assigned cause.” Lewis, 498 A.2d at 802.




      2
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§771, 772.


                                                 7
             Medical evidence is competent when “[an] [expert's] opinion is
sufficiently definite and unequivocal to render it admissible.” Pryor v. Workers'
Compensation Appeal Board (Colin Service Systems), 923 A.2d 1197, 1203 (Pa.
Cmwlth. 2006). Conversely, “[m]edical evidence which is less than positive or
which is based upon possibilities may not constitute legally competent evidence for
the purpose of establishing the causal relationship.” Lewis, 498 A.2d at 802;
accord Potere v. Workers' Compensation Appeal Board (Kemcorp), 21 A.3d 684,
690 (Pa. Cmwlth. 2011). However, “the law does not require every utterance
which escapes the lips of a medical witness on a medical subject to be certain,
positive, and without reservation or exception.” Bemis v. Workers' Compensation
Appeal Board (Perkiomen Grille Corp.), 35 A.3d 69, 72 (Pa. Cmwlth. 2011),
appeal denied, 54 A.3d 350 (Pa. 2012), (citing Philadelphia College of
Osteopathic Medicine v. Workmen’s Compensation Appeal Board (Lucas), 465
A.2d 132, 134 (Pa. Cmwlth. 1983)). “[A] medical witness's use of words such as
‘probably,’ ‘likely,’ and ‘somewhat’ will not render an opinion equivocal so long
as the testimony, read in its entirety, is unequivocal and the witness does not recant
the opinion or belief first expressed.” Id. “[E]ven if the medical witness admits to
uncertainty, reservation, doubt or lack of information with respect to medical and
scientific details,” his opinion, if accepted by the factfinder, will support an award
“so long as the witness does not recant the opinion or belief first expressed.”
Lucas, 465 A.2d at 135.
             Furthermore, inconsistent answers given on cross-examination do not
necessarily destroy the effectiveness of previously expressed opinions by a medical
expert. American Refrigerator Equipment Co. v. Workmen's Compensation Appeal
Board (Jakel), 377 A.2d 1007, 1010 (Pa. Cmwlth. 1977).            However, when a


                                          8
medical expert concedes during cross-examination too many possibilities as to the
cause of the diagnosis, his medical testimony will be deemed equivocal and
therefore insufficient as a matter of law. Jones v. Workers' Compensation Appeal
Board (J.C. Penney Co.), 747 A.2d 430, 432 (Pa. Cmwlth.), appeal denied, 764
A.2d 1074 (Pa. 2000).
             We determine equivocality by reviewing a medical expert's testimony
in its entirety. Lewis, 498 A.2d at 803. Indeed, a final decision “should not rest
upon a few words taken out of the context of the entire testimony.” Id. The
competency of medical evidence is a legal conclusion reviewable on appeal.
Potere, 21 A.3d at 690.
             Here, Dr. DiStefano first examined Claimant on August 4, 2015.
Reproduced Record (R.R.) at 55a. He reviewed diagnostic studies including two
MRIs of the lumbar spine performed on February 13, 2015 and June 30, 2015.
R.R. at 25a. Based on his physical examination, the history Claimant provided and
his review of medical records and diagnostic studies, Dr. DiStefano diagnosed
Claimant with an acute strain and sprain of the lumbar spine and an aggravation of
pre-existing L4/L5 and L5/S1 right disc protrusion, which he attributed to the
work-related incident of December 16, 2014.      R.R. at 60a.    Specifically, Dr.
DiStefano testified:

             A     I diagnosed an acute strain and sprain of the
             lumbar spine and aggravation of pre-existing L4/L5 and
             L5/S1 right disc protrusion.

             Q     Doctor, did you have an opinion within a
             reasonable degree of medical certainty regarding
             causation of those diagnoses?

             A     Yes.


                                        9
             Q      What was your opinion?

             A     I thought they were related to the accident of
             12/16/14.

             Q     Doctor, at that point, what was your opinion
             regarding Mr. Woody's ability or inability to work in any
             capacity?

             A      On that day [August 4, 2015], I opined that it was
             unlikely that he could ever return to his prior occupation,
             which involved -- that involved very heavy lifting, up to
             150 pounds, and I felt in that respect he had permanent,
             partial disability and his prognosis for the near future was
             poor.
R.R. at 60a-61a (emphasis added).
             Dr. DiStefano saw Claimant again on November 3, 2015, at which
time Claimant presented with a burning pain in his right buttock with extension
into the back of the right thigh.       R.R. at 61a-62a.     Based on his physical
examination as well as an EMG nerve conduction study, Dr. DiStefano opined it
was “more likely that his disc herniations were symptomatic and causing
radiculitis.” R.R. at 63a-64a. In addition, he testified:

             Q    . . . What, if any, of the abnormal findings on the
             MRI studies would you relate to the 12/16/14 injury?

             A      It is possible that the disc protrusions that were
             noted by the radiologist are a result of the injury. It can
             be difficult to assign a temporal relationship to what is
             seen on the MRI and what is manifested clinically. The
             point from my standpoint is that he was not symptomatic
             prior to the accident and became symptomatic following.
             So I would think that there has been, at the least, an
             aggravation of pre-existing problems. Possibly, the
             accident caused the problems.

             Q     With respect to the bilateral L4 and right L5
             radiculopathy, do you have an opinion within a

                                          10
             reasonable degree of medical certainty regarding
             causation of that?

             A     That is what I was referring to. The disc
             herniations or protrusions impinge on those nerve roots,
             the L4 nerve roots and the right L5 nerve root and given
             that EMG picture.

             Q     Not to beat a dead horse, but what is your opinion
             regarding the causation of that bilateral L4 and right L5
             radiculopathy?

             A     Given its absence clinically at least or
             symptomatically, prior to the accident, I would have to
             assign its cause to the accident.

             Q      Is that within a reasonable degree of medical
             certainty?

             A     Yes.

R.R. at 64a-65a (emphasis added).
             On cross-examination, Dr. DiStefano acknowledged that it was
“possible” that the MRI and EMG findings were solely related to the degenerative
process.   R.R. at 76a, 80a.    He also testified that, according to his records,
Claimant first reported symptoms in his lower extremities at the November 2015
evaluation. R.R. at 72a. Dr. DiStefano agreed with the accepted acute lumbar
strain and sprain of his lumbar spine from the incident, “but . . .      also felt
[Claimant] sustained an aggravation of pre-existing disc problems.” R.R. at 78a.
Dr. DiStefano did not recant his testimony on direct examination that Claimant's
clinical presentation showed impact and symptomatology, which were not present
before the incident, thus supporting his view of an aggravation accompanied by
radicular components as a result of the incident.


                                         11
               Upon review, although Dr. DiStefano admitted to some possibilities
and uncertainty on cross-examination, he did not recant his opinion regarding
causation.       Dr. DiStefano candidly acknowledged that the line between
degenerative and aggravated lumbar conditions may not always be definitive, but
given the lack of symptomology before the incident and the clinical presentation
afterwards, he believed that the work-injury aggravated Claimant’s pre-existing
degenerative disc problems.            R.R. at 64a.   When read in its entirety, Dr.
DiStefano’s testimony directly correlated the aggravation of his pre-existing disc
condition to the work-related cause within a reasonable degree of medical
certainty.     Such testimony constitutes competent evidence on the issue of
causation.      Thus, we conclude that the WCJ did not err in expanding the
description of the work injury based on this medical evidence.


                                     B. Reasoned Decision
               Next, Employer asserts that the WCJ’s decision is not reasoned and
that the WCJ capriciously disregarded competent evidence.               Specifically,
Employer contends that the WCJ ignored Claimant’s own testimony regarding his
symptomology and a pain diagram completed by Claimant, which showed that
Claimant did not report pain in his lower extremities until November 2015.
According to Employer, this evidence undermines the competency of Dr.
DiStefano’s testimony.
               To satisfy the reasoned decision requirements of Section 422(a) of the
Act, 77 P.S. §834,3 a WCJ must set forth the rationale for the decision by

      3
          Section 422(a) of the Act provides:

(Footnote continued on next page…)
                                                12
specifying the evidence relied upon and reasons for accepting it.                        Daniels v.
Workers' Compensation Appeal Board (Tristate Transport), 828 A.2d 1043, 1047
(Pa. 2003). However, the WCJ is not required to address all of the evidence
presented in a proceeding in his written adjudication. Id. Instead, to satisfy the
“reasoned decision” requirement, a WCJ must only make findings necessary to
resolve the issues raised by the evidence and relevant to the decision. Pryor, 923
A.2d at 1202 (the absence of findings relating to a psychological pain evaluation
did not deprive this Court of effective appellate review or make the decision
unreasoned); see also Montgomery Tank Lines v. Workers' Compensation Appeal
Board (Humphries), 792 A.2d 6, 13 n.10 (Pa. Cmwlth. 2002). When faced with


(continued…)

                Neither the board nor any of it members nor any workers'
                compensation judge shall be bound by the common law or
                statutory rules of evidence in conducting any hearing or
                investigation, but all findings of fact shall be based upon sufficient
                competent evidence to justify same. 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.

77 P.S. §834.


                                                 13
conflicting evidence, the WCJ must adequately explain the reasons for rejecting or
discrediting competent evidence. Daniels, 828 A.2d at 1047.
            In addition, review for “capricious disregard of material, competent
evidence is an appropriate component of appellate consideration in every case in
which such question is properly brought before the Court.” Leon E. Wintermeyer,
Inc. v. Workers' Compensation Appeal Board (Marlowe), 812 A.2d 478, 487 (Pa.
2002). “A capricious disregard amounts to a willful or deliberate ignorance of
evidence which a reasonable person would consider important.” Id.
            Here, in accordance with the reasoned decision requirements of
Section 422(a) of the Act, the WCJ properly considered the evidence before him,
made all necessary findings and conclusions, and clearly articulated his reasons for
accepting and rejecting the testimony. The WCJ found, as modified by the Board,
that Claimant sustained an aggravation of pre-existing L4-L5 and L5-S1 right disc
protrusions and bilateral L4 and right L5 radiculopathy as a result of his work
injury. In reaching this finding, the WCJ relied on the testimony of Dr. DiStefano,
which was unrefuted. The WCJ found that Dr. DiStefano “provided a sound,
cogent explanation to support his causal opinions.” F.F. No. 14.
            Although the WCJ did not discuss Claimant’s testimony regarding his
symptomology or a pain diagram completed by Claimant, the WCJ was not
required to address all of the evidence presented, only such evidence necessary to
resolve the issues. The issue of whether Claimant’s additional injuries were caused
by the work-related incident depended upon the presentation of unequivocal
medical evidence, not lay testimony. See Lewis, 498 A.2d at 802.
            Insofar as Employer contends that Claimant’s testimony and evidence
regarding symptomology conflicted with or undermined Dr. DiStefano’s


                                        14
testimony, we disagree.    Dr. DiStefano acknowledged that Claimant did not
complain of radiating pain until the November 2015 examination in his testimony.
R.R. at 72a-73a. Notwithstanding, Dr. DiStefano diagnosed Claimant with an
aggravation of pre-existing L4-L5 and L5-S1 right disc protrusions and bilateral L4
and right L5 radiculopathy and related it to the work-related cause within a
reasonable degree of medical certainty based on other data. Employer did not
present any medical evidence refuting that Claimant sustained a work-related
aggravation of a pre-existing condition. Upon review, we conclude that the WCJ
issued a reasoned decision as required by Section 422(a) of the Act and did not
capriciously disregard competent or competing material evidence.


                                 IV. Conclusion
            For these reasons, we conclude that the description of Claimant’s
work-related injury was properly expanded to include an aggravation of pre-
existing L4-L5 and L5-S1 right disc protrusions and bilateral L4 and right L5
radiculopathy.
            Accordingly, we affirm the order of the Board.




                                      MICHAEL H. WOJCIK, Judge




                                        15
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Southeastern Pennsylvania         :
Transportation Authority (SEPTA), :
                                  :
                       Petitioner :
                                  :
           v.                     : No. 416 C.D. 2017
                                  :
Workers' Compensation Appeal      :
Board (Woody),                    :
                                  :
                       Respondent :


                                    ORDER


           AND NOW, this 21st day of September, 2017, the order of the
Workers' Compensation Appeal Board, dated March 7, 2017, is AFFIRMED.




                                     __________________________________
                                     MICHAEL H. WOJCIK, Judge
