          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Arnold Gilliam,                           :
                                          :
                          Petitioner      :
                                          :
                    v.                    : No. 1289 C.D. 2017
                                          : Submitted: February 9, 2018
Workers’ Compensation Appeal              :
Board (Li and Uninsured                   :
Employers Guarantee Fund),                :
                                          :
                          Respondents     :


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

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                             FILED: August 3, 2018


             Arnold Gilliam (Claimant) petitions for review of the August 16, 2017
order of the Workers’ Compensation Appeal Board (Board), insofar as it affirmed
the decision of a workers’ compensation judge (WCJ) terminating Claimant’s
entitlement to indemnity and medical compensation benefits as of October 28, 2015.
We affirm.
             Claimant worked for Construction Building Supply LLC (Employer) as
a truck driver from May 2013 to November 17, 2014. On August 15, 2014, Claimant
sustained an injury to his back in the course and scope of his employment after lifting
and delivering cement bags. Claimant notified Employer about the problem but
continued to work until November 17, 2014, when he was laid off for lack of work.
Claimant first sought medical treatment for his work injury on November 18, 2014,
when he was evaluated for lower back pain at the emergency room of Cooper
University Hospital. Claimant received unemployment compensation benefits for
the period from November 16, 2014, until May 2015, and he returned to sedentary
work for a concrete company in June 2015.
                On January 14, 2015, Claimant filed a claim petition against Employer,
which is uninsured, seeking benefits for disability relating to the August 15, 2014
injury. On March 10, 2015, Claimant filed a claim petition against the Uninsured
Employers Guaranty Fund1 (UEGF) alleging the same work injury. On January 26,
2016, Employer filed a “protective” termination petition alleging that Claimant was
fully recovered from the August 15, 2014 work injury as of October 28, 2015.2 The
parties filed timely answers to the petitions denying all allegations.
                Before the WCJ, Claimant testified that he worked as a truck driver for
Employer, and his duties included loading and unloading items from the truck.
Claimant asserted that on August 15, 2014, after making a delivery of 90-pound
cement bags and 16-foot-long beams, he felt something in his back and reported an
injury to Employer. Claimant testified that although he was able to continue
performing his full-duty job for Employer until November 17, 2014, he had lower
back pain from lifting during that period. Claimant said he eventually sought
medical treatment at the Cooper University Hospital emergency room.
                Claimant also presented the October 27, 2015 deposition testimony of
Kishor Patil, M.D., a board-certified neurologist, who examined Claimant twice in


       1
         Although this party’s name is misspelled in the petition for review and caption, we use
the correct spelling in the body of our opinion.

       2
           Reproduced Record (R.R.) at 23-26.
                                                2
June 2015. Dr. Patil diagnosed Claimant with lumbar disc disease with a right S1
radiculopathy. He directed Claimant to continue with chiropractic care and referred
him to a pain management specialist. Dr. Patil opined that Claimant’s injury was
caused by repetitive heavy lifting that caused the disc to protrude and the nerve to
become compressed.       Dr. Patil believed that these injuries were caused by
Claimant’s work duties from August 2014 and that Claimant should be limited to
sedentary work.
             Employer’s owner, Charlie Li, testified that Claimant did not work for
him in August 2014. Mr. Li acknowledged that he communicated with delivery
drivers via cell phone and that he had called Claimant multiple times in August 2014.
However, Mr. Li testified that he made those calls asking Claimant to come back to
work. Mr. Li confirmed that he laid Claimant off in November 2014.
             Employer also presented the January 16, 2016 deposition testimony of
Richard Schmidt, M.D., a board-certified orthopedic surgeon, who conducted an
independent medical examination (IME) of Claimant on October 28, 2015. Dr.
Schmidt obtained a comprehensive medical history from Claimant, including his
description of the August 15, 2014 work injury and subsequent medical treatment.
Dr. Schmidt performed a physical examination, and he reviewed a June 9, 2015 CAT
scan report and the EMG report from June 22, 2015 authored by Dr. Patil. Dr.
Schmidt stated that his evaluations revealed no objective abnormalities related to the
August 15 injury. He opined that Claimant had not sustained a posttraumatic lumbar
radiculopathy, lumbar facet syndrome, or lumbar displaced disc. Based upon his
physical examination of Claimant and review of the medical reports, Dr. Schmidt
opined that Claimant has fully recovered from a lumbar strain and all other injuries.




                                          3
He signed an affidavit of recovery reflecting full recovery from a diagnosis of lumbar
strain, stating that Claimant may return to full unrestricted work duties.
              The WCJ accepted Claimant’s testimony concerning the occurrence of
the August 15 work incident and rejected Mr. Li’s testimony that Claimant did not
work for him in August 2014. The WCJ credited Dr. Patil’s testimony and relied on
it to find that Claimant sustained a lumbar strain with radiculopathy that resulted in
a temporarily disabling work injury. However, the WCJ accepted Dr. Schmidt’s
testimony that Claimant had no continuing work related injuries as of October 28,
2015. Based on those credibility determinations, the WCJ granted Claimant’s claim
petition and awarded benefits for the period starting November 17, 2014, and
ordered benefits terminated effective October 28, 2015.
              Both parties appealed to the Board, which affirmed the WCJ’s decision.
On appeal to this Court,3 Claimant argues that the WCJ’s termination of Claimant’s
benefits was not supported by substantial evidence4 and that the WCJ’s decision is
not reasoned. We disagree.
              Initially, we note that in a claim proceeding, the claimant bears the
burden of proving all of the elements necessary for an award of benefits, including
the burden to establish the duration of disability.                Varghese v. Workmen’s


       3
         Our scope of review is limited to determining whether necessary findings were supported
by substantial evidence, whether an error of law was committed, or whether constitutional rights
were violated. Minicozzi v. Workers’ Compensation Appeal Board (Indus. Metal Planting, Inc.),
873 A.2d 25, 28 n.1 (Pa. Cmwlth. 2005).

       4
         Substantial evidence is such relevant evidence that a reasonable mind might accept as
adequate to support a finding. York Terrace/Beverly Enters. v. Workmen’s Compensation Appeal
Board (Lucas), 591 A.2d 762, 764 n.5 (Pa. Cmwlth. 1991). 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. A & J Builders, Inc. v. Workers’ Compensation Appeal Board (Verdi),
78 A.3d 1233, 1238 (Pa. Cmwlth. 2013).
                                               4
Compensation Appeal Board (City of Philadelphia, Dep’t of Health), 682 A.2d 443,
445-46 (Pa. Cmwlth. 1996); Innovative Spaces v. Workmen’s Compensation Appeal
Board (DeAngelis), 646 A.2d 51, 54 (Pa. Cmwlth. 1994). A WCJ can terminate
benefits within the context of a claim proceeding even when the employer never
filed a termination petition. Ohm v. Workmen’s Compensation Appeal Board
(Caloric Corp.), 663 A.2d 883, 885-86 (Pa. Cmwlth. 1995) (holding that, in a claim
petition proceeding, the WCJ is authorized to terminate benefits as of the date the
disability ceased, even if a termination petition has not been filed, if the claimant has
not carried his burden to establish a continuing disability).
             We have previously explained that, “[in the context of] a claim petition
proceeding, no work-related injury has yet been recognized . . . . If the WCJ
[determines] that the evidence supports a finding of disability only for a closed
period, [he or she] is free to make such a finding.” Milner v. Workers’ Compensation
Appeal Board (Main Line Endoscopy Ctr.), 995 A.2d 492, 496 (Pa. Cmwlth. 2010)
(citations omitted). Further, it is appropriate for the WCJ to terminate benefits as of
the date on which a medical expert examined the claimant and found him to be fully
recovered from his work-related injuries. Id. In this case, the WCJ credited Dr.
Schmidt’s testimony and relied on it to find that Claimant was fully recovered at the
time of the October 28, 2015 IME.
             Claimant contends that Dr. Schmidt’s testimony is not competent to
support a finding of full recovery because Dr. Schmidt did not accept the description
of the injury recognized by the WCJ in crediting Dr. Patil’s testimony. We dismissed
this same argument in Milner (“no work-related injury has yet been recognized”).
995 A.2d at 496. More important, in this case, the WCJ expressly “reject[ed] the
testimony of Dr. Patil regarding the nature and extent of the injury and [Claimant’s]


                                           5
ongoing medical condition and ability to work after the [IME].” WCJ’s Finding of
Fact No. 31.
               Claimant additionally argues that Dr. Schmidt’s testimony is not
competent because he did not review all of Claimant’s medical records. However,
it is well settled that “‘the fact that a medical expert does not have all of a claimant’s
medical records goes to the weight given the expert’s testimony, not its
competency.’” Huddy v. Workers’ Compensation Appeal Board (U.S. Air), 905
A.2d 589, 593 n.9 (Pa. Cmwlth. 2006) (citations omitted).
               Claimant also asserts that the WCJ’s decision to accept Dr. Schmidt’s
testimony over Dr. Patil’s on the issue of Claimant’s full recovery is not reasoned.
Claimant complains that the WCJ placed great emphasis on Dr. Schmidt’s
characterization of the lumbar MRI study as benign, contrary to Dr. Patil’s more
informed opinion. Claimant also emphasizes that Dr. Patil is board-certified in
neurology and devotes ten to fifteen percent of his practice to occupational injuries,
whereas Dr. Schmidt is an orthopedist with a subspecialty in orthopedic oncology.
               As stated in Section 422(a) of the Workers’ Compensation Act (Act),5
a reasoned decision is one that contains findings of fact and conclusions of law,

      5
          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

                                                 6
based on all the evidence, which clearly and concisely state and explain the rationale
for the WCJ’s decision. 77 P.S. §834. Claimant argues that our appellate review
includes a determination of “whether the [WCJ’s] credibility findings are supported
by adequate reasons.”        Claimant’s brief at 10.          However, “[i]n making these
arguments, Claimant misconstrues the reasoned decision requirement of the Act.”
Green v. Workers’ Compensation Appeal Board (US Airways), 155 A.3d 140, 147
(Pa. Cmwlth.), appeal denied, 169 A.3d 1081 (Pa. 2017). In Green, 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.

Green, 155 A.3d at 147 (quoting PEC Contracting Engineers v. Workers’
Compensation Appeal Board (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. 717 A.2d at 1089 n.3. “It is well established that the [WCJ], as
factfinder, has exclusive province over questions of credibility and evidentiary

              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 (emphasis added).
                                                7
weight . . . [and] is free to accept or reject the testimony of any witness, including a
medical witness, in whole or in part.”              Greenwhich Collieries v. Workmen’s
Compensation Appeal Board (Buck), 664 A.2d 703, 706 (Pa. Cmwlth. 1995)
(citations omitted).      “[T]he WCJ’s prerogative to determine the credibility of
witnesses and the weight to be accorded evidence has not been diminished by the
amendments to Section 422(a). Such determinations are binding on appeal unless
made arbitrarily and capriciously.” PEC Contracting Engineers, 717 A.2d at 1089.
After careful review, we discern no legal error underlying the WCJ’s findings, and
we reject Claimant’s challenge to the WCJ’s authority as factfinder.
               Finally, Claimant asserts that the WCJ’s Finding of Fact No. 42 should
be modified to remove a reference to Employer’s entitlement to a credit. In relevant
part, Finding of Fact No. 42 states, “Employer/UEGF is entitled to a credit for any
disability payments paid by the Employer out of its own general funds or out of sick
or accident benefits, not as wages or salary for work performed, but in relief of
[Claimant’s] incapacity to work . . . .” WCJ’s 10/17/2016 Decision, Finding of Fact
No. 42.
               However, as the Board observed, the WCJ did not award Employer the
$3,200.00 credit Employer asserted during the hearing.6

               It is an elementary rule of appellate practice that one does
               not appeal a finding of fact of a tribunal. What is appealed
               is the order of the tribunal. This principle is reflected in
               Pa. R.A.P. 341(a) which states that ‘any appeal may be

       6
          The Board explained that an employer must present its claim for any credit to which it
may be entitled during an initial claim proceeding, or the claim for credit is waived entirely.
Boeing Helicopters v. Workers’ Compensation Appeal Board (Cobb), 713 A.2d 1181, 1186 (Pa.
Cmwlth. 1998). The Board concluded that, because Employer failed to establish entitlement to a
specific amount of credit, Employer waived its right to a credit and the WCJ did not err in denying
Employer’s claim. McKay v. Workmen’s Compensation Appeal Board (Osmolinski), 688 A.2d
259, 263 (Pa. Cmwlth. 1997).
                                                8
           taken as of right from any final order of an administrative
           agency or lower court.’ Pa. R.A.P. 341(a) (emphasis
           added) . . . .
Wright v. Workmen’s Compensation Appeal Board (Adam’s Mark Hotel), 639 A.2d
1347, 1349 (Pa. Cmwlth. 1994).
           Accordingly, we affirm.




                                     MICHAEL H. WOJCIK, Judge




                                       9
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Arnold Gilliam,                        :
                                       :
                       Petitioner      :
                                       :
                  v.                   : No. 1289 C.D. 2017
                                       :
Workers’ Compensation Appeal           :
Board (Li and Uninsured                :
Employers Guarantee Fund),             :
                                       :
                       Respondents     :


                                    ORDER


            AND NOW, this 3rd day of August, 2018, the order of the Workers’
Compensation Appeal Board, dated August 16, 2017, is AFFIRMED.




                                     __________________________________
                                     MICHAEL H. WOJCIK, Judge
