         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Monica Leigey,                          :
                                        :
                         Petitioner     :
                                        :
                  v.                    : No. 720 C.D. 2017
                                        : Submitted: December 29, 2017
Workers’ Compensation Appeal            :
Board (Reliant Senior Care              :
Holdings, Inc. and HM Casualty          :
Insurance Company),                     :
                                        :
                         Respondents    :


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE J. WESLEY OLER, Jr., Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                         FILED: April 26, 2018


            Monica Leigey (Claimant) petitions for review of the May 10, 2017
order of the Workers’ Compensation Appeal Board (Board), which affirmed the
decision of a workers’ compensation judge (WCJ) granting the termination petition
filed by Reliant Senior Care Holdings, Inc. (Employer). We affirm.
            Claimant worked for Employer as a nurse’s aide at Audubon Villa, a
nursing home, for 23 years. While working on May 5, 2015, she slipped and fell,
striking her right hip and knee on the floor. She experienced some pain in her hip
and knee but completed her shift. Claimant continued working until May 9, 2015,
and she was off work from that date through July 12, 2015.
              On June 30, 2015, Employer filed a notice of temporary compensation
payable, acknowledging a May 5, 2015 work injury in the nature of a hip contusion.
Claimant returned to full-time, light-duty work on July 13, 2015, and on July 15,
2015, Employer issued a notice stopping temporary compensation. On that same
date, Employer also issued a medical only notice of compensation payable for a May
5, 2015 work injury in the nature of a hip contusion and a right knee injury.
              Subsequently, effective September 2, 2015, Claimant was restricted to
working four hours per day. On November 5, 2015, Claimant filed a claim petition
asserting that she was totally disabled due to right hip and knee pain caused by the
May 5, 2015 incident.1
              At a December 21, 2015, hearing before the WCJ, Claimant testified
that she began feeling back pain and right leg pain immediately after the May 5,
2015, slip and fall. She stated that she finished her shift, but her pain increased over
the next few days and Employer referred her to Concentra for medical care.
Claimant said that she was out of work from May 9, 2015, through July 12, 2015,
and returned to light-duty work on July 13, 2015. Claimant stated that she continued
to have ongoing pain in her right hip, right knee, and lower back. During this
hearing, Claimant also amended the claim petition to reflect that she was seeking
partial disability benefits from September 2, 2015, and ongoing, and to amend the
description of the work injury to include aggravation of a pre-existing lumbar
degenerative disc disease.
              Claimant presented the March 8, 2016 deposition testimony of James
P. Argires, M.D., who is board certified in neurological surgery. Dr. Argires testified

       1
        When a medical-only notice of compensation has been issued, the employee must file a
claim petition to establish disability. Ingrassia v. Workers’ Compensation Appeal Board
(Universal Health Services, Inc.), 126 A.3d 394, 401-402 (Pa. Cmwlth. 2015).
                                             2
that he began treating Claimant for a herniated disc in 2011 and that she has been
seen at his practice intermittently for low back complaints. He noted that Claimant
sought treatment for recurrent back pain, right leg pain, and numbness on April 27,
2015, and she underwent an MRI on April 29, 2015. Following the May 5, 2015
work injury, Claimant saw Dr. Thurman, a physiatrist with Dr. Argires’s practice.
Dr. Thurman ordered a new MRI, which was performed on June 19, 2015, and
reflected no changes from the prior study.
               Dr. Argires next saw Claimant on September 2, 2015, and he restricted
her to working four hours per day. Dr. Argires stated that Claimant’s most recent
visit was on December 14, 2015, at which time he recommended that she continue
her medication and begin physical therapy. Citing his review of Claimant’s
medical records, the history she provided, and his examinations, Dr. Argires testified
that the May 5, 2015 work injury aggravated Claimant’s pre-existing conditions
related to prior disc surgery and that the work restrictions he initiated were related
to that aggravation.
               On March 25, 2016, Employer filed a termination petition2 alleging that
Claimant had fully recovered from her work injuries as of February 2, 2016. 3 In
support of the termination petition, Employer presented the April 19, 2016
deposition testimony of John R. Donahue, M.D., a board certified orthopedic

       2
          In a termination proceeding, the employer bears the burden of proving that the claimant’s
disability has ceased or that any current disability is not the result of the work injury. Daniels v.
Workers’ Compensation Appeal Board (Tristate Transport), 753 A.2d 293, 297 (Pa. Cmwlth.
2000). An employer may satisfy this burden by presenting unequivocal and competent medical
evidence of the claimant’s full recovery from the work injury. Id.

       3
          On April 1, 2016, Claimant filed a penalty petition alleging that Employer failed to pay
partial disability benefits when the notice of temporary compensation payable acknowledged an
injury and disability. The WCJ found that no violation of the Act occurred and denied the penalty
petition. Claimant did not appeal that ruling.
                                                 3
surgeon, who conducted an independent medical examination (IME) of Claimant on
February 2, 2016. Dr. Donahue testified that the April 29, 2015 MRI showed multi-
level degenerative changes in the spine and that the MRI performed after the May
5th work injury revealed no structural changes.                 Based upon his physical
examination and his review of Claimant’s records and history, Dr. Donahue opined
that Claimant had suffered a right knee injury and hip contusion on May 5, 2015,
from which she had fully recovered as of February 2, 2016. Dr. Donahue testified
that the work injury had completely resolved and that Claimant could return to
unrestricted work duty.
               The parties submitted the deposition transcripts of their respective
expert medical witnesses at the April 27, 2016 hearing before the WCJ. Counsel for
Claimant complained that Dr. Argires did not have Dr. Donahue’s February 2, 2016
IME report when he testified, and, therefore, he was unable to testify on the issue of
full recovery.      Following discussion on the record, the WCJ determined that
Claimant’s counsel received Dr. Donahue’s IME report on March 4, 2016, four days
before Dr. Argires’s deposition. The WCJ concluded that Claimant was on notice
of Dr. Donahue’s opinions concerning Claimant’s full recovery when Dr. Argires
was deposed and should have addressed that issue during his March 8, 2016
deposition.
               At the conclusion of the April 27, 2016 hearing, counsel for both parties
agreed that there was no need for an additional hearing,4 and the hearing scheduled
for May 4, 2016, was canceled. However, on June 29, 2016, Claimant’s counsel
wrote a letter to the WCJ requesting that the record be reopened to allow Claimant




      4
          Notes of Testimony, April 27, 2016, at 18, Reproduced Record at 81a.
                                               4
to present additional deposition testimony of Dr. Argires to address the termination
petition. The WCJ denied this request.
             In a decision circulated July 15, 2016, the WCJ explained his denial of
Claimant’s request to reopen the record:

             This Judge notes that counsel for Claimant, by
             correspondence dated June 29, 2016, requested the record
             be reopened to allow for Claimant to present an additional
             deposition of Dr. Argires to address the Termination
             Petition. However, this issue was addressed at the April
             27, 2016 hearing where it was determined that counsel for
             Claimant had been provided the IME report of Dr.
             Donahue on March 4, 2016, i.e., four days before the
             deposition of Dr. Argires, and as such, this Judge finds and
             concludes that Claimant was on notice of the opinions of
             Dr. Donahue when Dr. Argires was deposed and the issue
             of whether or not Claimant had fully recovered from the
             work injury should have been addressed at the March 8,
             2016 deposition. This is especially true given the fact that
             in a Claim Petition, the burden of proof as to ongoing
             disability remains on Claimant during the entire pendency
             of litigation. In addition, counsel argues that Claimant was
             somehow denied the opportunity to testify concerning
             issues surrounding the Termination Petition. Again, this
             Judge notes that the parties were aware that an additional
             hearing had been scheduled for May 4, 2016. However, at
             the end of the April 27, 2016 hearing counsel for the
             parties agreed that there was no need for the May 4, 2016
             hearing.
WCJ’s Finding of Fact (F.F.) No. 10, Supplemental Reproduced Record at 94a
(citations omitted).
             The WCJ also set forth the witnesses’ testimony in detail. F.F. Nos. 6-
8. The WCJ credited Claimant’s testimony with respect to the events of May 5,
2015, her course of medical treatment, and her complaints of ongoing, increased
pain in her right leg following the fall. F.F. No. 9. The WCJ accepted Dr. Donahue’s


                                           5
testimony and opinions as more credible and persuasive than the testimony and
opinions of Dr. Argires.        Id.   Based on those credibility determinations, and
expressly according more weight to the expert medical evidence, the WCJ found that
Claimant suffered an aggravation of her pre-existing lower back condition on May
5, 2015, from which she had fully recovered as of February 2, 2016. Accordingly,
the WCJ granted Claimant’s claim petition and awarded workers’ compensation
benefits commencing May 5, 2015, through February 2, 2016, and ordered benefits
terminated effective February 2, 2016.
              Claimant appealed to the Board, arguing that the WCJ erred in denying
her request to present medical and lay evidence in opposition to Employer’s
termination petition. Claimant asserted that the WCJ failed to satisfy his obligations
under the Special Rules of Administrative Practice and Procedure Before Workers’
Compensation Judges (Judges’ Rules)5 to allow for due process and presentation of
evidence. Noting that Claimant’s counsel had received Dr. Donahue’s IME report
before taking Dr. Argires’s deposition, the Board affirmed the WCJ’s decision.
              On appeal to this Court,6 Claimant again asserts that the WCJ’s denial
of her request to present evidence in defense of the termination petition violated her
right to due process of law as well as the Judges’ Rules. We disagree.
              Generally, the “[a]dmission of evidence is committed to the sound
discretion of the WCJ.” Atkins v. Workers’ Compensation Appeal Board (Stapley in
Germantown), 735 A.2d 196, 199 (Pa. Cmwlth. 1999). In addition, the WCJ has the


       5
         34 Pa. Code §§131.1-131.204.
       6
        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).


                                              6
discretion to waive the Judges’ Rules.                 Id.; Nevin Trucking v. Workmen’s
Compensation Appeal Board (Murdock), 667 A.2d 262, 270 (Pa. Cmwlth. 1995).
                In this appeal, Claimant acknowledges that her attorney received an
email from Employer’s counsel, with Dr. Donahue’s February 2, 2016 IME report
attached, on March 4, 2016. Claimant’s brief at 11. There is no question that
Claimant was on notice of Dr. Donahue’s opinion of full recovery when Dr. Argires
was deposed on March 8, 2016.
                Nevertheless, Claimant complains that Employer did not provide notice
of its intent to file a termination petition. Claimant argues that even if she had been
informed of Employer’s intent, Dr. Argires would not have been able to respond to
Dr. Donahue’s February 2016 report because Dr. Argires’s last examination of
Claimant, in December 2015, predated Dr. Donahue’s IME. Claimant contends that
Employer’s filing of a termination petition on March 23, 2016, and its assignment
to the WCJ, triggered Section 131.63 of the Judges’ Rules7 and required the WCJ to
allow her 90 days to present additional evidence.

      7
          In relevant part, Section 131.63 of the Judges’ Rules states:
                (a) An oral deposition may be taken at any time subsequent to 30
                days after the date of assignment of the petition by the Department.


                (b) Oral depositions shall be completed so as not to delay
                unreasonably the conclusion of the proceedings, and within a time
                schedule agreed upon by the parties and approved by the judge
                provided that medical depositions shall be completed as specified in
                subsections (c) and (e).


                (c) The deposition of a medical expert testifying for the moving
                party shall be taken within 90 days of the date of the first hearing
                scheduled unless the time is extended or shortened by the judge for
                good cause shown. The deposition of a medical expert testifying for

                                                  7
             However, 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 Compensation Appeal
Board (City of Philadelphia, Dept. 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). Consequently, 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, a WCJ is authorized to award compensation for a work-related injury,
and, in addition, 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). 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. Connor v. Workmen’s Compensation Appeal Board (Super Sucker, Inc.),
624 A.2d 757, 759 (Pa. Cmwlth 1993). Significantly, in this case, Employer
accepted liability only for medical expenses.            Thus, there was no established
disability, (i.e., loss of earning power), and Employer had no burden to prove that
Claimant was not disabled by her work injury. Ingrassia, 126 A.3d at 402 n.13.
Moreover, when presented with the opportunity to present further evidence at
another hearing scheduled for May 4, 2016, Claimant indicated that the additional



             the responding party shall be taken within 90 days of the date of the
             deposition of the last medical expert testifying on behalf of the
             moving party.

34 Pa. Code §131.63 (emphasis added).
                                              8
hearing was not necessary. Notes of Testimony, April 27, 2016, at 18, Reproduced
Record at 81a.
               Claimant also argues that Employer’s evidence was not sufficient to
support the finding of a full recovery from the May 5, 2015 work injury. However,
this argument was not raised in Claimant’s appeal to the Board but instead is raised
for the first time in Claimant’s appellate brief. Failure to raise an issue before the
Board constitutes a failure to preserve that issue for review by this Court. Mearion
v. Workers’ Compensation Appeal Board (Franklin Smelting & Refining Co.), 703
A.2d 1080, 1081 n.3 (Pa. Cmwlth. 1997).8
               Accordingly, we affirm.




                                               MICHAEL H. WOJCIK, Judge




       8
         In Wheeler v. Workers’ Compensation Appeal Board (Reading Hospital and Medical
Center), 829 A.2d 730 (Pa. Cmwlth. 2003), we explained:

               It is well established that an issue is waived unless it is preserved at
               every stage of the proceeding. The strict doctrine of waiver applies
               to a workers’ compensation proceeding. The purpose of the waiver
               doctrine is to ensure that the WCJ is presented with all cognizable
               issues so that the ‘integrity, efficiency, and orderly administration
               of the workmen’s compensation scheme of redress for work-related
               injury’ is preserved.

Id. at 734 (citations omitted).
                                                  9
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Monica Leigey,                         :
                                       :
                       Petitioner      :
                                       :
                 v.                    : No. 720 C.D. 2017
                                       :
Workers' Compensation Appeal           :
Board (Reliant Senior Care             :
Holdings, Inc. and HM Casualty         :
Insurance Company),                    :
                                       :
                       Respondents     :


                                    ORDER


           AND NOW, this 26th day of April, 2018, the order of the Workers’
Compensation Appeal Board, dated May 10, 2017, is AFFIRMED.




                                     __________________________________
                                     MICHAEL H. WOJCIK, Judge
