              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Carmelo Olivares Hernandez,              :
                       Petitioner        :
                                         :
                   v.                    :
                                         :
Workers’ Compensation Appeal             :
Board (F&P Holding Co.),                 :   No. 1820 C.D. 2017
                       Respondent        :   Submitted: April 20, 2018


BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION BY
JUDGE COVEY                                  FILED: July 19, 2018

            Carmelo Olivares Hernandez (Claimant) petitions this Court for review
of the Workers’ Compensation (WC) Appeal Board’s (Board) November 28, 2017
order which affirmed the Workers’ Compensation Judge’s (WCJ) decision granting
F&P Holding Company’s (Employer) Petition to Terminate Compensation Benefits
(Termination Petition), and reversed the WCJ’s decision granting Claimant’s Petition
to Reinstate Benefits (Reinstatement Petition), and awarding Claimant litigation
costs. The sole issue before this Court is whether the Board erred by affirming the
WCJ’s decision granting the Termination Petition. After review, we affirm.
            On August 12, 2011, while working for Employer as a maintenance
worker, Claimant sustained an upper back injury. On July 31, 2012, Employer issued
a medical-only Notice of Compensation Payable (NCP) acknowledging the injury as
a thoracic sprain. At the time of the injury, Claimant was performing modified duty
resulting from an earlier 2006 work-related lumbar spine injury.
            In September 2013, Claimant presented Employer with work restrictions
pursuant to a Functional Capacity Evaluation (FCE). Thereafter, Employer laid off
Claimant. On October 1, 2013, Claimant filed the Reinstatement Petition alleging a
decrease in earning power following the 2011 injury.           On October 23, 2013,
Employer filed an answer thereto, admitting that Claimant was laid off because
Employer could not accommodate his work restrictions, but denying that the
restrictions were related to the work injury. On March 14, 2014, Employer sent
Claimant to Christian Fras, M.D. (Dr. Fras) for an Independent Medical Examination
(IME).   On April 29, 2014, Employer filed its Termination Petition seeking to
terminate WC benefits effective March 14, 2014 based on Claimant’s alleged full
recovery from the thoracic sprain and his ability to return to unrestricted work.
             On February 6, 2015, the WCJ granted both the Reinstatement Petition
and the Termination Petition finding that Claimant was totally disabled from
September 30, 2013 through March 14, 2014 resulting from the work injury, but was
fully recovered thereafter. Both parties appealed from that decision. On April 25,
2016, the Board issued an order reversing the WCJ’s decision granting reinstatement,
and finding that there was insufficient record evidence to support the WCJ’s
conclusion that Claimant’s August 12, 2011 work injury affected his earning power.
The Board ruled that Claimant’s inability to work as of September 30, 2013, was at
least in part, due to a lumbar spine condition unrelated to the work injury.        In
addition, the Board vacated the grant of the Termination Petition and remanded the
matter to allow the WCJ to reopen the record and consider the deposition testimony
of Claimant’s chiropractor and medical expert, Donna Kulp, D.C. (Dr. Kulp).
             On remand, the WCJ found Claimant’s live testimony credible and Dr.
Fras’ deposition testimony more credible than Dr. Kulp’s deposition testimony. The
WCJ again granted both petitions, awarded Claimant indemnity benefits from
September 30, 2013 through March 14, 2014, and terminated benefits effective
March 14, 2014. The WCJ also awarded litigation costs to Claimant. Both parties
appealed to the Board. On November 28, 2017, the Board affirmed the WCJ’s
                                           2
decision granting the Termination Petition, but reversed the WCJ’s decision granting
the Reinstatement Petition and reversed the litigation cost award.1 Claimant appealed
to this Court.2
               Initially,

               [i]t is solely for the WCJ, as the factfinder, to assess
               credibility and to resolve conflicts in the evidence. In
               addition, it is solely for the WCJ, as the factfinder, to
               determine what weight to give to any evidence. As such,
               the WCJ may reject the testimony of any witness in whole
               or in part, even if that testimony is uncontradicted.

Empire Steel Castings v. Workers’ Comp. Appeal Bd. (Cruceta), 749 A.2d 1021,
1024 (Pa. Cmwlth. 2000) (citations omitted).
               Claimant contends that the Board erred by affirming the WCJ’s decision
granting the Termination Petition. The crux of Claimant’s argument is that because
the WCJ found Claimant’s testimony credible, both the WCJ and the Board erred
when they approved the Termination Petition. Claimant asserts that his testimony
that he was not fully recovered from the work injury, needed work restrictions and
additional treatment, and still experienced pain, was sufficient to deny the
Termination Petition.
               Relying on Udvari v. Workmen’s Compensation Appeal Board (U.S. Air,
Inc.), 705 A.2d 1290 (Pa. 1997), the Board properly explained that an employer’s
burden in a termination petition


       1
           The Board reversed the WCJ’s decision granting the Reinstatement Petition and awarding
litigation costs because the Board’s April 25, 2016 order vacated only the WCJ’s granting of the
Termination Petition and remanded to allow the WCJ to consider Dr. Kulp’s deposition testimony,
and to make new findings of fact and conclusions of law relating to the Termination Petition. Thus,
the Reinstatement Petition and litigation costs were not properly before the WCJ on remand.
         2
           “On review[,] this Court must determine whether constitutional rights were violated, errors
of law were committed, or necessary findings of fact were supported by substantial competent
evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d 598, 601 n.6
(Pa. Cmwlth. 2014). Claimant appeals only from the grant of the Termination Petition.
                                                  3
            is met when an employer’s medical expert unequivocally
            testifies that it is his or her opinion, within a reasonable
            degree of medical certainty, that the claimant is fully
            recovered, can return to work without restrictions, and that
            there are no objective medical findings that either
            substantiate any ongoing complaints of pain or connect
            them to the work injury.

Board Op. at 4. In Udvari, the Pennsylvania Supreme Court explained:

            The determination of whether a claimant’s subjective
            complaints of pain are accepted is a question of fact for the
            WCJ. In the absence of objective medical testimony, the
            WCJ is neither required to accept the claimant’s assertions,
            nor prohibited from doing so. Testimony by the employer’s
            medical expert as to the existence of the claimant’s
            complaints of pain does not require the WCJ to find for the
            claimant. A contrary conclusion would lead to the absurd
            result that a claimant could forever preclude the termination
            of benefits by merely complaining of continuing pain.
            What is relevant in deciding whether the termination of
            benefits is warranted is whether the claimant suffers
            from pain as a result of the work-related injury.
            . . . . In a case where the claimant complains of continued
            pain, this burden is met when an employer’s medical
            expert unequivocally testifies that it is his opinion,
            within a reasonable degree of medical certainty, that the
            claimant is fully recovered, can return to work without
            restrictions and that there are no objective medical
            findings which either substantiate the claims of pain or
            connect them to the work injury. If the WCJ credits this
            testimony, the termination of benefits is proper.

Udvari, 705 A.2d at 1293 (bold emphasis added; footnotes omitted).
            In the instant matter, Employer’s expert, Dr. Fras, testified:

            [Claimant’s] physical examination was entirely objectively
            normal. There was nothing objective that would demand
            any restriction of activity. Certainly the radiographic
            findings on [Claimant’s] imaging study are quite modest in
            nature and certainly not ones that would preclude his
            working and not ones that would demand a restriction of
            activity.

                                          4
               ....
               The findings on the MRI are not ones that are indicative
               of an ongoing thoracic sprain. They are modest and
               degenerative in nature and are unrelated to a thoracic
               sprain.
               The subjective complaints offered by Dr. Kulp in her
               description of [Claimant’s] condition are not ones that are
               supported by objective findings either on evaluation or on
               radiographic assessment.       They are not subjective
               complaints that would preclude an individual from working
               and are not ones that demand by their nature restriction of
               activity.

Reproduced Record (R.R.) at 109a-110a (emphasis added).                        In fact, Claimant
acknowledges, in his brief to this Court, Dr. Fras’ testimony that Claimant’s March
14, 2014 examination “was objectively normal with full stride, normal sensation,
intact reflexes and no muscle spasm[.]” Claimant Br. at 9. Claimant also concedes
that “Dr. Fras testified that he saw no residuals of a thoracic sprain or strain and the
MRI of the thoracic spine from [October 5, 2011] showed only degenerative changes
and trivial disc bulges[.]” Id. Finally, Claimant recognizes that the WCJ found Dr.
Fras credible.
               However, Claimant asserts that five months after Dr. Fras’ examination,
Claimant testified that he continues to have pain in his upper back and that his
treatment with Dr. Kulp is beneficial. At that time, he also testified that he has not
fully recovered from the injury and had no new injuries. He emphasizes that Udvari
is distinguishable because in the instant matter, the WCJ specifically found his post-
IME testimony credible, while in Udvari, there were no such findings.3 Claimant


       3
         Although Claimant testified that he still experienced pain and Dr. Fras did not expressly
discount that claim, this Court has recognized that “the mere reluctance of a physician to discount a
claimant’s unconfirmed subjective complaints is not tantamount to an implicit admission that the
claimant is not fully recovered from a work-related disability.” Laird v. Workmen’s Comp. Appeal
Bd. (Michael Curran & Assocs.), 585 A.2d 602, 604 n.3 (Pa. Cmwlth. 1991). With respect to back
                                                 5
contends that the WCJ’s crediting of Dr. Fras’ testimony and granting termination of
Claimant’s benefits is inconsistent with the WCJ’s finding that Claimant’s testimony
of ongoing pain and lack of full recovery was credible.
              This Court addressed similar circumstances in Pella Corp. v. Workers’
Compensation Appeal Board (Wertz) (Pa. Cmwlth. No. 2144 C.D. 2008, filed July 1,
2009).4 In Pella, the WCJ granted the employer’s termination petition, and the Board
reversed. On review, this Court considered whether there was substantial record
evidence to support the WCJ’s finding that the claimant had fully recovered from a
work-related low back strain. According to the claimant, in 2005, while pulling carts
of glass, she experienced pain in her lower back and in her right leg. The employer
recognized the injury as a “strain, unrelated to prior surgery.” Id., slip op. at 2. The
claimant testified that she underwent back surgery in 2006, and, following the
surgery, she continued to experience back pain and occasional pain down her leg.
She admitted she also underwent surgery in 2003 for a non-work-related back
problem and continued to experience back pain up until the 2005 work injury.
Further, she presented her treating physician’s deposition testimony, wherein, the
physician explained that he performed surgery in April 2006 for a work-related injury
and that the claimant was not fully recovered from the work injury because she still
had restrictions related to the surgery. On cross-examination, her physician admitted
that the claimant had experienced chronic back pain since 1994 and previously had
degenerative disc disease. Her physician also testified that the surgery he performed
for her work-related injury was successful, but he would expect her to have pain due

pain that Claimant was allegedly experiencing, Dr. Fras did explicitly testify that imaging findings
were degenerative in nature, and unrelated to Claimant’s work injury. See R.R. at 109a.
       4
         This Court’s unreported memorandum opinions may be cited “for [their] persuasive value,
but not as a binding precedent.” Section 414(a) of the Commonwealth Court’s Internal Operating
Procedures, 210 Pa. Code § 69.414(a). Given the factual similarities to the instant matter, we find
Pella persuasive.


                                                 6
to an earlier injury. The employer’s physician explained that the claimant’s ongoing
pain complaints resulted from degenerative conditions, and that the claimant’s
surgery was to address conditions that existed prior to the work injury and was thus,
unrelated thereto.
             The WCJ accepted the claimant’s testimony as credible. The WCJ also
credited the claimant’s physician’s testimony that the claimant’s injury was work-
related, but discredited his testimony that the claimant had not recovered because the
physician had testified that the surgery he performed was successful. Finally, the
WCJ accepted the employer’s expert’s testimony to the extent it concurred with the
claimant’s physician’s testimony. Based thereon, the WCJ granted the termination
petition. The claimant appealed to the Board.
             On review, the Board reversed, concluding there was no substantial
record evidence supporting the finding that the claimant was fully recovered. The
Board noted that the WCJ accepted the employer’s expert’s testimony only to the
extent it was consistent with the claimant’s physician’s testimony and that the two
physicians disagreed with respect to her recovery status. The Board further based its
decision to reverse on the fact that the WCJ had accepted the claimant’s testimony
that she continued to experience pain. The employer then petitioned this Court for
review.
             This Court reversed the Board, concluding that substantial evidence
supported the WCJ’s decision granting the termination petition. The Court addressed
the fact that the WCJ found the claimant credible, stating:

             That the WCJ credited [the c]laimant’s testimony as to
             ongoing pain in her back does not alter this conclusion. It is
             evident from the WCJ’s determination that, based on the
             credited testimony of [the claimant’s physician] and [the
             employer’s expert], she found [the c]laimant's ongoing
             complaints of back pain to be attributable to her preexisting
             degenerative conditions. As factfinder, the WCJ had the

                                           7
              sole authority to weigh the conflicting evidence, and this
              Court may not reassess that determination on appeal. See
              Empire Steel, 749 A.2d at 1024 (‘[I]t is solely for the WCJ,
              as the factfinder, to determine what weight to give to any
              evidence.’).

Pella, slip op. at 11 n.8.
              Similarly, in the instant matter, although Claimant credibly testified that
he continued to experience pain resulting from the work-related injury, the WCJ also
found Dr. Fras’ testimony credible that Claimant had fully recovered from the work-
related injury. Dr. Fras’ testimony evidenced that Claimant’s physical examination
was objectively normal, and any pain Claimant was experiencing resulted from
degenerative changes unrelated to the work injury. The WCJ, as factfinder, had the
sole authority to weigh the evidence and reach this conclusion. See Empire Steel.
Because Employer met its burden under Udvari, the Board properly affirmed the
WCJ’s granting of Employer’s Termination Petition.
              For all of the above reasons, the Board’s order is affirmed.


                                          __________________________
                                          ANNE E. COVEY, Judge




                                            8
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Carmelo Olivares Hernandez,           :
                       Petitioner     :
                                      :
                  v.                  :
                                      :
Workers’ Compensation Appeal          :
Board (F&P Holding Co.),              :   No. 1820 C.D. 2017
                       Respondent     :


                                    ORDER


            AND NOW, this 19th day of July, 2018, the Workers’ Compensation
Appeal Board’s November 28, 2017 order is affirmed.



                                      __________________________
                                      ANNE E. COVEY, Judge
