           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Billie Jean Slotkin,                     :
                         Petitioner      :
                                         :
             v.                          :   No. 663 C.D. 2015
                                         :   Submitted: January 22, 2016
Workers’ Compensation Appeal             :
Board (Jewish Home of Eastern            :
Pennsylvania),                           :
                       Respondent        :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE PATRICIA A. McCULLOUGH, Judge
        HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                             FILED: May 17, 2016

             Billie Jean Slotkin (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), denying Claimant’s petition to reinstate
compensation benefits. We now affirm.
             On March 17, 2010, during the course of her employment with Jewish
Home of Eastern Pennsylvania (Employer), Claimant fell and sustained a
work-related injury to her left knee and right elbow. Employer issued a Notice of
Workers’ Compensation Denial, which provided that Employer “would pay
reasonable, necessary and related medical expenses for an injury of left knee
contusion and right elbow bruise.” (WCJ Hemak Op. at 1.) Claimant filed a claim
petition in which she sought to have the full description of her injuries
acknowledged. She did not seek wage loss benefits. After a hearing, during which
both Claimant and Employer presented the testimony of medical experts, WCJ
Hemak granted Claimant’s claim petition. In so doing, WCJ Hemak held that
Claimant sustained a “compensable work-related left knee injury” and ordered that
the “injury shall properly be acknowledged as a left knee contusion with multiple
ligamentous sprains involving ACL, PCL and MCL, as well as a mild partial
tearing of her lateral patellar retinaculum, a contusion to her Hoffa’s fat pad and an
aggravation of her underlying knee arthritis and meniscal injury.” (Id. at 2-3.)
WCJ Hemak’s decision was not appealed by either party.
               On February 1, 2012, Claimant filed a petition to reinstate
compensation benefits, alleging that she was entitled to a reinstatement because her
condition had worsened.1 (Certified Record (C.R.), Reinstatement Pet.) Employer
denied the allegations in Claimant’s reinstatement petition, and WCJ Peleak
conducted several hearings. During the July 10, 2012, hearing before WCJ Peleak,
Claimant testified that after her injury of March 17, 2010, she continued to work
for Employer, albeit in a restricted capacity. (Reproduced Record (R.R.) at 8a.)
As a Certified Nursing Assistant, Claimant’s pre-injury job duties concerned
“patient care,” including activities such as walking with residents and changing
them. (Id.) After her injury, Claimant’s duties were limited to activities such as
watching residents, performing nail care, and offering residents food and drinks.
(Id.) Although Claimant’s job duties had changed after the injury, she continued to
earn the same wages. (Id. at 9a.) Prior to her injury, Claimant had been treated by
Christopher Metzger, M.D., for a knee condition. (Id. at 9a-10a.) After her injury,


       1
          As noted above, in the initial claim petition, Claimant did not seek, nor does it appear
that she received, compensation benefits.



                                                2
Claimant was treated by Sheryl Oleski, D.O. (Id. at 9a.) In November 2011,
Dr. Oleski took Claimant out of work. (Id. at 10a-11a.) Upon her return to work
in December 2011, Claimant was limited to sedentary duty, which she described as
“basically just sitting and watching residents.” (Id. at 11a.) Claimant began
treatment with Jack Henzes, M.D., who scheduled Claimant for a total knee
replacement surgery. On cross-examination, Claimant admitted to degenerative
changes and pain in her left knee prior to her fall on March 17, 2010, for which she
took Vicodin and received Xylocaine and cortisone injections. (Id. at 14a-15a,
#19a, 21a-22a.) Claimant also testified that she had wanted arthroscopic surgery
for her knee prior to her injury, but that she did not schedule an appointment.
(Id. at 21a.)
                Claimant returned to testify before WCJ Peleak on December 6, 2012.
Claimant explained that Dr. Henzes had performed surgery on her left knee on
August 9, 2012. (Id. at 33a.) Claimant did not return to work after the surgery.
(Id.)   Claimant testified that she had an appointment with Dr. Henzes on
February 6, 2013, at which point Dr. Henzes would determine whether Claimant
would be able to return to work. (Id. at 34a.) At the time of the hearing, Claimant
intended to return to work if she received authorization from Dr. Henzes. (Id. at
37a-38a.)
                In support of her reinstatement petition, Claimant offered the
deposition testimony of Dr. Oleski. Dr. Oleski testified that she is board certified
in physical medicine and rehabilitation, as well as sports medicine. (Id. at 45a.)
Dr. Oleski testified that she began treating Claimant for her knee injury on
October 6, 2010. (Id. at 49a.) Based on her initial treatment of Claimant and her
review of Claimant’s medical records, Dr. Oleski opined:


                                          3
                My impression was that [Claimant] suffered a left knee
                contusion with multiple ligamentous sprains involving
                the ACL, PCL as well as the MCL. That she suffered a
                Hoffa’s fat pad impingement or contusion type injury.
                She suffered a meniscal injury. And that this was due to
                the fall from her work-related injury. And that she also
                suffered from preexisting arthritis and meniscal
                degeneration.
(Id. at 52a.) Claimant and Dr. Oleski discussed the possibility of arthroscopic
surgery, but Dr. Oleski believed that Claimant was not a good candidate for
arthroscopic surgery due to her underlying arthritis. (Id. at 53a.) Dr. Oleski
informed Claimant “that she really needed to undergo a knee replacement if she
was to be able to try to get back to work full duty.” (Id. at 55a.) Claimant’s
complaints concerning her knee remained relatively consistent until her
appointment with Dr. Oleski on November 11, 2011. (Id. at 60a.) During the
appointment, Claimant complained that “the pain was more severe and her knee
was starting to give out.” (Id.) Due to Claimant’s risk of falling, Dr. Oleski felt
that Claimant should not continue to work. (Id. at 62a.) Dr. Oleski released
Claimant back to work when she learned that Employer could accommodate
Claimant “in a very sedentary duty capacity.” (Id. at 62a-63a.) Claimant would
remain on sedentary duty until the knee replacement surgery was performed.
(Id. at 67a.) Dr. Oleski opined that despite Claimant’s pre-existing arthritis, the
knee replacement surgery was a result of Claimant’s work-related injury.
(Id. at 68a.)
                Employer presented the deposition testimony of Patrick Respet, M.D.,
a board certified orthopedic surgeon. Dr. Respet testified that he performed an
independent medical evaluation (IME) of Claimant on November 29, 2011.
(Id. at 124a.) Upon performing a physical examination of Claimant and reviewing
her medical records, Dr. Respet concluded that Claimant “had sustained a
                                           4
contusion or a bruising of her left knee, which was in addition to an osteoarthritic
knee.” (Id. at 136a.) An MRI of Claimant’s knee performed in May 2010 revealed
tricompartmental degenerative changes, indicating that Claimant suffered from
osteoarthritis.    (Id. at 136a-37a.)    Dr. Respet noted that Dr. Metzger had
recommended that Claimant consider a total knee replacement in 2007.
(Id. at 140a.)    Dr. Respet opined that Claimant’s current symptoms and work
restrictions were not causally related to her work injury, but, rather, to her pre-
existing osteoarthritis. (Id. at 142a, 145a.) When asked whether he agreed with
WCJ Hemak’s conclusion that Claimant’s work injury caused an aggravation of
her underlying arthritis, Dr. Respet testified:
              A. She had a flare-up of her symptoms from that, which
              I would have anticipated to recover in two or three
              months.
              Q.     And is it possible to have aggravation or
              exacerbations that do, over time, resolve but you’re left
              with the underlying degenerative condition?
              A. I think that’s the picture that would be most
              consistent in this instance.
(Id. at 142a-43a.) Dr. Respet reiterated his conclusion that Claimant sustained a
knee contusion from which she had recovered, but he further explained that
Claimant was recovered from the aggravation of her underlying arthritis, meniscal
injury, and the partial tearing of her lateral patellar retinaculum. (Id. at 147a-49a.)
During the IME, Dr. Respet found no evidence of ligamentous sprains involving
the ACL, MCL, and PCL. (Id. at 147a-48a.) On cross-examination, Dr. Respet
explained that he believed the most accurate diagnosis of Claimant’s work injury
was a left knee contusion. (Id. at 152a-53a.) He did not agree with all of the
diagnoses and conclusions in WCJ Hemak’s decision, as he attributed Claimant’s
symptoms to “degenerative changes, not trauma.” (Id. at 159a.)

                                           5
              WCJ Peleak issued an opinion denying Claimant’s reinstatement
petition. In so doing, the WCJ explained that Claimant’s reinstatement petition
concerned her injury on March 17, 2010, which “was described as a left knee
contusion and right elbow bruise.”           (WCJ Peleak Op. at 1.)           The WCJ also
summarized the testimony of Drs. Oleski and Respet, and rendered the following
credibility determination:
              After deliberation and consideration of all the evidence,
              we find the opinion of Dr. Respet, the orthopedic
              surgeon, to be the most credible. We respect the opinion
              of Dr. Oleski, but she is not a surgeon and cannot deny
              that [Claimant]’s underlying arthritis was deteriorating
              before the contusion she suffered to her knee on
              March 17, 2010. We further accept Dr. Respet’s opinion
              that because the arthritis was so extensive in the joint,
              rather than concentrated in just the area of trauma, that it
              was the natural progression of that underlying condition
              that necessitated the knee replacement. Further, we
              cannot overlook that physicians were recommending a
              knee replacement for the Claimant prior to the work
              injury.
(Id. at 2.) The WCJ concluded that Claimant failed to satisfy her burden to prove
that the worsening of her condition was caused by her injury and that the most
credible evidence demonstrated that the worsening of Claimant’s condition was the
result of her underlying arthritis. (Id. at 3.) Claimant appealed to the Board, which
affirmed the WCJ’s decision. Claimant then petitioned this Court for review.
              On appeal,2 Claimant first contends that Dr. Respet’s testimony was
incompetent to support the finding that Claimant’s worsening condition was due to



       2
         This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
(Footnote continued on next page…)

                                               6
her underlying arthritis rather than her injury on March 17, 2010. Claimant also
argues that WCJ Peleak erred in failing to accurately describe the accepted,
previously-litigated injury and, therefore, his findings and conclusions were
improperly based on a misunderstanding of Claimant’s condition.
              We first address Claimant’s argument that Dr. Respet’s testimony was
incompetent.      Specifically, Claimant contends that Dr. Respet failed to
acknowledge Claimant’s accepted injury—specifically, the aggravation of
Claimant’s underlying arthritis—as found by WCJ Hemak during the proceedings
concerning Claimant’s first claim petition.         Rather, Dr. Respet rejected WCJ
Hemak’s finding as to the extent of Claimant’s injuries and found instead that
Claimant had only suffered a contusion as a result of her work-related injury. Such
testimony, Claimant contends, is an attempt by Employer to relitigate the accepted
description of the injury, which is barred by the doctrine of res judicata.
              In support of her argument that Dr. Respet’s testimony was barred by
the doctrine of res judicata, Claimant cites our decision in Noverati v. Workmen’s
Compensation Appeal Board (Newtown Squire Inn), 686 A.2d 455 (Pa. Cmwlth.
1996). There, a claimant was awarded compensation benefits for a work-related
injury resulting in the aggravation of pre-existing scoliosis, despite the testimony
of the employer’s expert indicating that the claimant’s disability was caused by the
pre-existing condition. The employer later sought suspension of the claimant’s
benefits and presented the testimony of the same expert, who again opined that the


(continued…)

supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§ 704.



                                            7
claimant’s work injury caused no disability. The WCJ dismissed the employer’s
suspension petition, explaining that the expert’s testimony was essentially the same
as that which was offered during the claim petition proceedings.         The WCJ
concluded that the employer “was precluded under the theory of res judicata from
relitigating the original medical diagnosis underlying [the c]laimant’s receipt of
benefits.” Noverati, 686 A.2d at 458. The employer appealed to the Board, which
reversed. In so doing, the Board reasoned that the employer was not barred from
seeking suspension based on evidence that the claimant’s disability was no longer
work-related. The claimant appealed to this Court, and we reversed the Board.
Although we agreed with the Board that the employer could seek to suspend the
claimant’s benefits based on evidence that the claimant’s current disability was no
longer work-related, the employer could not “establish grounds for termination or
suspension based on evidence that [the c]laimant’s disability is not now
work-related because, in fact, it never was work-related.”          Id. at 459-60.
Accordingly, we concluded that “evidence that [the c]laimant’s condition was not
work-related in the first instance, a matter previously adjudicated in the Claim
Petition proceeding, will not suffice to satisfy [the e]mployer’s burden of proof in
its subsequent [suspension] petition.” Id. at 460.
             The instant matter is distinguishable from Noverati. Here, Employer
was not seeking to terminate or suspend Claimant’s benefits and, therefore, it did
not have to establish that Claimant’s condition was not work-related in order to
prevail. Rather, it was Claimant’s burden to establish that the worsening of her




                                          8
condition was the result of her work injury.3 As noted above, the WCJ rejected
Dr. Oleski’s testimony as not credible and concluded that Claimant did not satisfy
her burden of proof.4 Thus, even if Dr. Respet’s testimony was incompetent,
Claimant failed to prove by substantial, credible evidence that the worsening of her


       3
          A claimant seeking reinstatement after a suspension of benefits has the burden to “prove
that his or her earning power is once again adversely affected by his or her disability, and that
such disability is a continuation of that which arose from his or her original claim.” Bufford v.
Workers’ Comp. Appeal Bd. (N. Am. Telecom), 2 A.3d 548, 558 (Pa. 2010). If the claimant
sustains this burden, the burden shifts to the opposing party, who “must show that the claimant’s
loss in earnings is not caused by the disability arising from the work-related injury.” Id. Here,
Claimant’s petition was captioned as a reinstatement petition and analyzed as such. As noted
above, however, it is not evident from the record that Claimant ever received compensation
benefits. In her initial claim petition, Claimant sought only the acknowledgment of the full
description of her injury. Further, in granting Claimant’s claim petition, WCJ Hemak did not
award compensation benefits. This Court has held that “if the claimant has not established a loss
of earning capacity resulting from the work injury, the case has not ‘advanced procedurally or in
substance to the suspension/reinstatement stage.’” Ingrassia v. Workers’ Comp. Appeal Bd.
(Universal Health Servs., Inc.), 126 A.3d 394, 401 (Pa. Cmwlth. 2015) (quoting Klarich v.
Workers’ Comp. Appeal Bd. (RAC’s Ass’n), 819 A.2d 626, 629 (Pa. Cmwlth. 2003)). As
Claimant has not yet established that she sustained a loss of earning capacity as the result of her
work-related injury, Claimant’s petition should have been analyzed as a claim petition.
Nevertheless, the application of a different burden of proof would not have affected the outcome
of this matter, as the WCJ concluded that Claimant failed to prove that the worsening of her
condition was caused by her work-related injury. In both instances, Claimant would be required
to establish some level of causation in order to obtain benefits.
       4
         To the extent that Claimant argues that the WCJ erred in finding Dr. Respet’s testimony
more credible than that of Dr. Oleski, we note that “the WCJ is the ultimate finder of fact and the
exclusive arbiter of credibility and evidentiary weight.” Thompson v. Workers’ Comp. Appeal
Bd. (USF&G Co.), 781 A.2d 1146, 1150 (Pa. 2001). In rendering credibility determinations as to
witnesses that did not testify live before the WCJ, the WCJ must provide “some articulation of
the actual objective basis for the credibility determination.” Daniels v. Workers’ Comp. Appeal
Bd. (Tristate Transp.), 828 A.2d 1043, 1053 (Pa. 2003). Here, the WCJ explained that
Dr. Oleski is not a surgeon and that Dr. Oleski did not deny that Claimant’s pre-existing arthritis
was deteriorating prior to her injury. (WCJ Peleak Op. at 2.) This is an adequate, objective basis
for the WCJ’s credibility determination, and we, therefore, reject Claimant’s argument as to the
WCJ’s credibility determinations.



                                                9
condition was due to her work injury. See Williams v. Workers’ Comp. Appeal Bd.
(USX Corp.-Fairless Works), 862 A.2d 137, 144 (Pa. Cmwlth. 2004) (“[T]he WCJ
is not required to accept even uncontradicted testimony.”) Further, res judicata
does not preclude an employer defending a reinstatement petition from presenting
evidence “that an employee’s current disability is due to non-work-related
factors.” Noverati, 686 A.2d at 459. Here, although Dr. Respet disagreed with
WCJ Hemak’s finding as to the extent of Claimant’s injuries, Dr. Respet
specifically acknowledged the aggravation of Claimant’s underlying arthritis.
(R.R. at 142a-43a, 149a.) Thus, although Dr. Respet may have disagreed with the
work-relatedness of the injury as identified by WCJ Hemak, his testimony was
competent because he assumed the presence of an aggravation of Claimant’s
underlying arthritis and testified as to Claimant’s recovery.       See O’Neill v.
Workers’ Comp. Appeal Bd. (News Corp. Ltd.), 29 A.3d 50, 57 (Pa. Cmwlth. 2011)
(“We have recently emphasized that a medical expert need not necessarily believe
that a particular work injury actually occurred, and that the expert’s opinion is
competent if he assumes the presence of a previously accepted work-related injury
and finds it to be resolved by the time of his examination.”). We, therefore, reject
Claimant’s argument as to Dr. Respet’s testimony.
            Claimant next argues that the WCJ erred in failing to accurately
describe Claimant’s accepted work injury. Specifically, Claimant takes issue with
the WCJ’s first finding of fact, in which he describes the injury as “a left knee
contusion and right elbow bruise.” (WCJ Peleak Op. at 1.) Claimant contends that
such a description improperly contradicts the description provided by WCJ Hemak,
which, as Claimant argued above, includes an aggravation of Claimant’s




                                        10
underlying arthritis. As a result, Claimant argues that any findings and conclusions
based on this description are erroneous. We disagree.
              Although WCJ Peleak did not include the entirety of WCJ Hemak’s
description of Claimant’s injury, this omission is, at most, harmless error. On
appeal, this Court is required to “view the evidence in the light most favorable to
the prevailing party and give it the benefit of all inferences reasonably deduced
therefrom.”    Wagner v. Workers’ Comp. Appeal Bd. (Anthony Wagner Auto
Repairs & Sales, Inc.), 45 A.3d 461, 465 n.5 (Pa. Cmwlth. 2012). Here, Dr.
Respet acknowledged WCJ Hemak’s finding that Claimant sustained an
aggravation of her underlying arthritis, but rejected Claimant’s assertion that this
aggravation caused her condition to worsen.          WCJ Peleak summarized this
testimony, noting that Dr. Respet had opined that Claimant “had advanced
tricompartmental degenerative joint disease and the fall may have caused a flare-up
of that condition, but the degree and extent of the arthritis was present in all three
compartments of the knee joint. That is not normally the case when dealing with
trauma.” (WCJ Peleak Op. at 2.) As noted above, WCJ Peleak accepted Dr.
Respet’s testimony as more credible than that of Dr. Oleski and concluded that
Claimant failed to meet her burden of proof. WCJ Peleak’s acceptance of Dr.
Respet’s testimony demonstrates sufficient understanding of the nature of
Claimant’s initial work-related injury, and Dr. Respet’s testimony constitutes
substantial evidence upon which the WCJ could render findings of fact and
conclusions of law. WCJ Peleak’s failure to include the aggravation of Claimant’s
underlying arthritis in his description of Claimant’s work-related injury does not,
therefore, constitute reversible error, and we reject Claimant’s argument to the
contrary.


                                         11
Accordingly, we affirm the Board’s order.




                  P. KEVIN BROBSON, Judge




                          12
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Billie Jean Slotkin,                   :
                        Petitioner     :
                                       :
             v.                        :   No. 663 C.D. 2015
                                       :
Workers’ Compensation Appeal           :
Board (Jewish Home of Eastern          :
Pennsylvania),                         :
                       Respondent      :


                                     ORDER


             AND NOW, this 17th day of May, 2016, the order of the Workers’
Compensation Appeal Board is hereby AFFIRMED.




                              P. KEVIN BROBSON, Judge
