            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John Andrew Hart,                             :
                            Petitioner        :
                                              :
              v.                              :   No. 1497 C.D. 2015
                                              :   Submitted: December 18, 2015
Workers’ Compensation Appeal                  :
Board (Dominion Transmission, Inc.            :
and Gallagher Bassett Services, Inc.),        :
                         Respondents          :


BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge1
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                                  FILED: March 9, 2016



              Petitioner John Andrew Hart (Claimant) petitions for review of an
order of the Workers’ Compensation Appeal Board (Board). The Board affirmed
the decision of a Workers’ Compensation Judge (WCJ), granting Claimant’s claim
petition for a closed period of time from January 25, 2012, through
September 11, 2013. We affirm the Board’s order.
              On June 4, 2012, Claimant filed a claim petition against Dominion
Transmission, Inc., Claimant’s employer (Employer), and its insurer, Gallagher
Bassett Services, Inc.          Claimant alleged that he had been injured on

       1
        This case was assigned to the opinion writer on or before January 31, 2016, when Judge
Leadbetter assumed the status of senior judge.
August 23, 2011, when the vehicle he was driving while working for Employer
was struck from behind by another vehicle.         The WCJ found that Claimant
established that the accident caused more than a soft tissue injury, specifically
acute herniation at the C5-C6 and C6-C7 levels that were not explained by natural
degenerative changes. (Finding of Fact (F.F.) no. 9.) The WCJ also determined
that “surgical intervention was necessary to resolve [C]laimant’s problem and that
[C]laimant had not recovered sufficiently from his work injury to return to work
without restriction until [his] September 11, 2013 visit with [his treating
physician,] Dr. Ricci.” (Id.) In making this factual finding, the WCJ relied upon
Dr. Ricci’s testimony that when he saw Claimant on September 11, 2013, Claimant
“no longer [] had [any] restrictions” on his ability to work. (Id.) The WCJ also
relied upon the testimony of Donald M. Whiting, M.D., a physician certified in
neurosurgery. (F.F. no. 5.) The WCJ relied upon Dr. Whiting’s testimony that,
when he last saw Claimant on October 29, 2012, he expected Claimant to improve
in the future to the point where Claimant could return to work. (F.F. no. 9.) Based
upon the credited testimony of Claimant’s own experts regarding his ability to
return to work without restriction, the WCJ found that, although Claimant had
sustained a work-related injury in the nature of an acute cervical herniation,
Claimant had recovered sufficiently to return to work.
             Claimant appealed to the Board, arguing that the WCJ erred in
suspending his benefits. Claimant contended that the WCJ’s findings regarding the
cessation of his disabling cervical injury are not supported by substantial evidence.
Claimant also asserted that the WCJ erred in concluding that Employer had a
reasonable basis to contest the claim petition. The Board, noting a claimant’s
burden of proof in a claim petition, affirmed the WCJ, based upon its conclusion


                                         2
that Claimant’s own physician testified that he was able to return to work without
restrictions as of September 11, 2013.              The Board also affirmed the WCJ’s
conclusion that Employer’s contest of the claim petition was reasonable, noting
that, in addition to the questions concerning the nature and cause of disability, the
extent of Claimant’s disability was also in question.
               Claimant petitions for review of the Board’s order,2 raising again the
question of whether the WCJ’s necessary factual findings regarding the suspension
of his benefits are supported by substantial evidence3 and whether the WCJ erred
in concluding that Employer’s contest was reasonable.
               In a workers’ compensation matter involving a claim petition, the
claimant bears the burden of proof as to all elements of his case. Innovative Serv.
v.   Workmen’s        Comp.      Appeal      Bd.     (DeAngelis),      646     A.2d     51,     54
(Pa. Cmwlth. 1994), appeal denied, 663 A.2d 696 (Pa. 1995) (holding in claim
petition burden remains with claimant to demonstrate work-related injury that
continues to cause disability). In this matter, Claimant’s own treating physician
testified that Claimant was capable of returning to work without restriction by
September 11, 2013. That testimony was sufficient to support the WCJ’s finding




       2
        Our review is limited to considering whether necessary factual findings are supported
by substantial evidence and whether any errors of law or constitutional violations were
committed. 2 Pa. C.S. § 704.
       3
          For the first time on appeal, Claimant asserts that the WCJ also erred with regard to the
date of commencement of his benefits. Specifically, Claimant argues that the WCJ’s finding that
his disability did not commence until January 25, 2012, is not supported by substantial evidence.
Claimant did not raise this issue before the Board and, consequently, he has waived this issue.
Curtis v. Workers’ Comp. Appeal Bd. (Berley Elec. Co.), 730 A.2d 528, 535 (Pa. Cmwlth. 1999).



                                                3
that Claimant’s disability had ceased, such that he was not entitled to continue to
receive benefits after that date.

             Additionally, Claimant contends that the WCJ erred in finding that
Employer’s contest was reasonable and failing to award him attorney’s fees under
Section 440 of the Workers’ Compensation Act,4 which provides, in pertinent part:
             In any contested case where the insurer has contested
             liability in whole or in part . . . the employe . . . in whose
             favor the matter at issue has been finally determined in
             whole or in part shall be awarded, in addition to the
             award for compensation, a reasonable sum for costs
             incurred for attorney’s fee, witnesses, necessary medical
             examination, and the value of unreimbursed lost time to
             attend proceedings: Provided, That cost for attorney fees
             may be excluded when a reasonable basis for the contest
             has been established by the employer or the insurer.

             Because Claimant rests his argument in part upon the timing of his
injury, an independent medical report, and the filing of his claim petition, we
briefly note those pertinent dates. Claimant was injured on August 23, 2011.
Alexander Kandabarow, M.D., performed an independent medical examination
(IME) of Claimant, issuing a report on or about April 17, 2012. Claimant filed his
claim petition on June 4, 2012. During the period between the August 23, 2011
injury and the date he filed his claim petition, Claimant underwent surgery for a
pre-existing, non-work-related, knee condition. Claimant asserts that his knee
injury resolved by September 28, 2011, and, that, afterwards, his work-related
cervical condition was the only reason he could not return to work. (Finding of
Fact (F.F.) h; Petitioner’s Brief at 11.)

      4
        Act of June 2, 1915, P.L. 736, added by the Act of February 8, 1972, P.L. 25, as
amended, 77 P.S. § 996.



                                            4
             In his IME report, Dr. Kandabarow discussed Claimant’s condition, in
pertinent part, as follows:
             This [IME] is performed with review of limited records
             after the motor vehicle accident . . . . However, the
             claimant does have a significant past medical history of
             degenerative disc disease and cervical stenosis, which
             had been evaluated in the past; however, the reports of
             these evaluations and medical records as far as treatment
             of symptoms are unavailable for review during this exam.
             As a result of the motor vehicle accident, he certainly did
             sustain a whiplash injury or a soft tissue injury to the
             cervical spine. The real question is whether his current
             symptoms of neck pain, numbness in the upper
             extremities, subjective weakness in the arms and legs are
             also a result of the motor vehicle accident . . . . He
             certainly, on physical examination, does not have any
             myelopathic symptoms to suggest that he sustained some
             type of cord impingement as a result of the flexion and
             extension injury.
             It would be helpful to have medical records of his
             previous symptoms and treatments for his cervical spine
             condition prior to the motor vehicle accident before
             making final determination. His imaging studies show
             no evidence of any cord [unreadable] or [unreadable] to
             suggest that any incomplete spinal cord injury occurred
             as a result of the motor vehicle accident.
             With respect to this last point, I recommend he not return
             to work with driving responsibilities since that does put
             him at risk for an incomplete spinal cord injury.

(R.R. at 252a.) Thus, Dr. Kandabarow opined that Claimant sustained whiplash or
a soft tissue injury, but he could not determine whether the symptoms Claimant
presented were related to Claimant’s pre-existing cervical problems or to the
work-related accident. Additionally, Dr. Kandabarow noted that if Claimant were
to be involved in an additional motor vehicle accident his spine could be at risk of
injury. Dr. Kandabarow, however, qualified this comment, by referencing his

                                         5
preceding statement, which indicated that he found no evidence, upon review of
the limited records available, to make a final determination regarding the extent of
Claimant’s work-related injury. Thus, Dr. Kandabarow’s opinion was entirely
equivocal, except with regard to the conclusion that Claimant sustained a soft
tissue injury as a result of the accident.
             “A reasonable contest may be established where medical evidence is
conflicting or is susceptible to contrary inferences and where there is an absence of
evidence that the employer’s contest was frivolous or filed for purposes of
harassment.”     Striker v. Workmen’s Comp. Appeal Bd. (California Univ.),
650 A.2d 1109, 1111 (Pa. Cmwlth. 1994). In Striker, we held that the employer
had established a reasonable basis to contest a claim because the duration of the
claimant’s disability was an issue and because there was no evidence that the
employer engaged in the contest for the purpose of harassment. Id. at 1111. We
have also held that an employer may challenge a claim where the period of
disability is at issue. White v. Workmen’s Comp. Appeal Bd. (Gateway Coal Co.),
520 A.2d 555, 557 (Pa. Cmwlth. 1987).
             Claimant contends that this Court’s decision in Bell’s Repair Service
v. Workers’ Compensation Appeal Board (Murphy, Jr.), 850 A.2d 49 (Pa. Cmwlth.
2004), compels a different conclusion. Bell’s Repair Service, however, is factually
and legally distinguishable from this case. In Bell’s Repair Service, we concluded
that an employer failed to demonstrate that it had a reasonable basis to challenge a
claim petition where the employer had no evidence to support its position until
long after a period of “uncontradicted proofs” of a work-related injury and
disability. In this matter, at the time Employer contested the claim petition—i.e.,
in its answer to the claim petition—Employer had the IME report of


                                             6
Dr. Kandabarow, whose opinion, as discussed above, was equivocal regarding the
cause of Claimant’s symptoms.        Although Dr. Kandabarow concluded that
Claimant had sustained a whiplash or soft tissue injury because of the work-related
accident, he was unable to opine as to whether his current symptoms were the
result of that accident.   Thus, he was unable to opine whether Claimant’s
work-related disability was continuing at the time of the IME. Consequently, we
conclude that the Board did not err in affirming the WCJ’s conclusion that
Employer’s contest was reasonable.
            Accordingly, we affirm the Board’s order.




                               P. KEVIN BROBSON, Judge




                                        7
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John Andrew Hart,                        :
                         Petitioner      :
                                         :
            v.                           :   No. 1497 C.D. 2015
                                         :
Workers’ Compensation Appeal             :
Board (Dominion Transmission, Inc.       :
and Gallagher Bassett Services, Inc.),   :
                         Respondents     :


                                      ORDER


            AND NOW, this 9th day of March, 2016, the order of the Workers’
Compensation Appeal Board is AFFIRMED.




                               P. KEVIN BROBSON, Judge
