         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Cindi Martzen,                           :
                   Petitioner            :
                                         :
            v.                           :
                                         :
Workers’ Compensation Appeal             :
Board (Jo-Ann Stores),                   :   No. 2043 C.D. 2016
                 Respondent              :   Submitted: June 2, 2017


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COSGROVE                            FILED: December 27, 2017


            Cindi Martzen (Claimant) petitions for review of a December 14, 2016
order of the Workers’ Compensation Appeal Board (Board), which reversed an order
of the Workers’ Compensation Judge (WCJ) granting Claimant’s Reinstatement and
Penalty Petitions and denying the Termination Petition of Jo-Ann Stores
(Employer), and affirmed the WCJ’s order granting Employer’s Suspension Petition.
Upon review, we vacate in part, affirm in part, and remand for further proceedings.
            Claimant worked as a store manager for Employer when she sustained
a work-related injury after falling from a ladder on January 12, 2011 (2011 injury).
Employer issued a medical-only Notice of Compensation Payable (NCP),
recognizing the injury as a lumbar strain/sprain possible disk injury. Despite the
medical-only designation of the NCP, Claimant was paid wage-loss benefits until
she returned to work approximately six weeks after she sustained her injury.
Claimant filed a Claim Petition on August 23, 2012, alleging a second workplace
injury occurred on July 6, 2012 (2012 injury), when a rack of clothing tipped over
and caused her to fall backwards to the ground. A second Claim Petition was filed
on May 30, 2013, in which Claimant alleged disfigurement resulted from the 2012
injury. The WCJ denied both petitions, finding Claimant had not suffered an injury
on July 6, 2012; rather, her symptoms and need for treatment stemmed from the 2011
injury. Claimant appealed the decision and the Board affirmed. This Court affirmed
the Board. See Martzen v. Workers’ Compensation Appeal Board (Jo-Ann Stores),
(Pa. Cmwlth. No. 436 C.D. 2016, filed August 2, 2016), 2016 WL 4140845.
               Employer filed a Suspension Petition regarding the 2011 injury on
August 2, 2013, alleging Claimant returned to work without a loss of wages on
February 28, 2011. Claimant filed a Reinstatement Petition on February 21, 2014,
alleging ongoing disability related to the 2011 injury. Claimant subsequently filed
a Penalty Petition, claiming Employer violated the Workers’ Compensation Act1 and
Rules and Regulations of the Department of Labor and Industry (Department).
Employer filed a Termination Petition on March 26, 2015, alleging Claimant had
fully and completely recovered from the 2011 injury. In a decision and order issued
August 24, 2015, the WCJ granted Claimant’s Reinstatement and Penalty Petitions.
The WCJ found the Claimant credibly testified she had not fully recovered from her
2011 injury and found the testimony of Claimant’s medical expert more credible
than that of Employer. In granting the Penalty Petition, the WCJ found Claimant
established Employer violated the Act by stopping wage loss benefits without
Bureau documents or a judge’s order. The WCJ granted Employer’s Suspension


      1
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1 – 1041.1, 2501-2708.
                                                2
Petition for the period of February 29, 2011 through July 6, 2012, during which time
Claimant returned to work. Concluding Employer failed to establish Claimant had
fully recovered from her 2011 injury, the WCJ denied Employer’s Termination
Petition.
               Employer appealed to the Board and filed a Request for Supersedeas.
The Board granted the supersedeas as to the penalty imposed by the WCJ, but denied
it in all other respects. In an opinion and order issued December 14, 2016, the Board
reversed in part and affirmed in part the decision of the WCJ. The Board reversed
the order of the WCJ to the extent it granted Claimant’s Reinstatement and Penalty
Petitions and denied Employer’s Termination Petition. That portion of the WCJ’s
order which granted Employer’s Suspension Petition for the period of February 29,
2011 through July 6, 2012 was affirmed. This appeal2 followed.

               Petitioner raises five issues on appeal:


               I.     Whether the Board applied the wrong scope and
                      standard of review?

               II.    Whether the Board erred in finding the testimony of
                      Claimant’s medical expert equivocal?
               III.   Whether the Board applied the incorrect burden of
                      proof?
               IV.    Whether the Board’s decision is                     directly
                      inconsistent with a prior Determination?



       2
         Our review of an order of the Board is limited to a determination of whether the necessary
findings of fact are supported by substantial evidence, whether Board procedures were violated,
whether constitutional rights were violated, or whether an error of law was committed. Walter v.
Workers’ Compensation Appeal Board (Evangelical Community Hospital), 128 A.3d 367, 371 n.5
(Pa. Cmwlth. 2015).
                                                3
             V.     Whether the Board improperly considered evidence
                    from separate litigation?

             For the sake of judicial economy, we will first address Claimant’s
assertion that the Board improperly determined the testimony of Claimant’s medical
expert, Dr. Joseph Verna (Dr. Verna), was equivocal. In its December 14, 2016
decision, the Board concluded Dr. Verna’s medical testimony was equivocal because
“he never waivered from his belief that Claimant sustained an injury in 2012 which
led to her present condition, a fact which was rejected by the WCJ in prior litigation.”
(Board’s Opinion at 7.)
             Medical testimony is equivocal if, after a review of the medical expert’s
testimony, it is found to be merely based on possibilities. Campbell v. Workers’
Compensation Appeal Board (Pittsburgh Post Gazette), 954 A.2d 724, 730 (Pa.
Cmwlth. 2008). Medical testimony will be deemed incompetent if it is equivocal.
Id.
             At a deposition held March 6, 2015, Dr. Verna was questioned
regarding Claimant’s symptoms and the causes thereof.            Dr. Verna examined
Claimant on July 9, 2012. (Deposition Testimony of Dr. Verna, 3/6/15, at 17.) At
that time, Claimant reported to Dr. Verna the details of the 2011 injury, injuries
sustained while gardening in June 2012, and the 2012 injury. Id. at 18. Dr. Verna
initially stated that Claimant’s complaints which presented at her July 9, 2012
examination were caused by the 2012 injury. Id. at 29. Only when Dr. Verna was
asked to base his opinion of causation on the hypothetical that the 2012 injury never
occurred did he opine that the lower back symptoms experienced by Claimant were
caused by the 2011 injury. Id. at 31, 33. Later in his testimony, Dr. Verna reiterated
his opinion that the condition of Claimant’s cervical spine was “directly and causally


                                           4
related to the [] 2012 injury.” Id. at 37. When asked whether the 2012 injury
occurred, Dr. Verna stated he believed it did. Id. at 45.
             When taken as a whole, it is clear Dr. Verna believed the 2012 injury
caused Claimant’s symptoms. His opinion on causation changed, however, if he
assumed the 2012 injury never occurred. Only then was the 2011 injury deemed
relevant.   We are compelled to conclude, as the Board did, that Dr. Verna’s
testimony was equivocal and incompetent.
             Next, we address Claimant’s argument that the Board applied the
incorrect burden of proof.
             In analyzing whether Claimant met her burden of proof for
reinstatement of benefits, the Board looked to Bufford v. Workers’ Compensation
Appeal Board (North American Telecom), 2 A.3d 548 (Pa. 2010). Bufford requires
that a claimant seeking reinstatement of benefits must prove 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. The claimant need
not re-prove that the disability resulted from a work-related injury during his or her
original employment. Once the claimant meets this burden, the burden then shifts
to the party opposing the reinstatement petition.” 2 A.3d at 558. The Board
discounted the testimony of Claimant’s medical expert, finding it equivocal, and
reversed the decision of the WCJ, concluding the medical expert’s testimony was
insufficient to meet Claimant’s burden of proof and rebut Employer’s evidence of
full recovery.
             Claimant was not required, however, to satisfy her burden with expert
medical evidence. Our Supreme Court in Latta v. Workmen’s Compensation Appeal
Board (Latrobe Die Casting Co.), 642 A.2d 1083, 1085 (Pa. 1994) held as follows:


                                          5
             Given the nature of suspension status, which actually
             acknowledges a continuing medical injury, and suspends
             benefits only because the claimant’s earning power is
             currently not affected by the injury, the testimony of a
             claimant alone could easily satisfy his burden of
             establishing that his work-related injury continues. To
             hold otherwise would improperly require a claimant to re-
             establish that which has already been agreed to and
             acknowledged. Therefore, we hold that expert medical
             evidence is not necessary to establish that the prior work-
             related injury continues. Rather, once a claimant testifies
             that his prior work-related injury continues, the burden
             shifts to his employer to prove the contrary. Where an
             employer fails to present evidence to the contrary, the
             claimant’s testimony, if believed by the referee, is
             sufficient to support reinstatement of the suspended
             benefits.

             At a June 11, 2014 hearing, Claimant testified regarding her symptoms.
Claimant acknowledged she did not seek treatment from May 2011 through June
2012, but stated she resumed treatment thereafter because she was “sick of being in
pain.” (Transcript of Testimony (T.T.), 6/11/2014, at 18-19.) Claimant’s pain was
no different than what she’d experienced the year prior. Id. at 20. Treatment was
also sought following the 2012 injury. Id. at 23. Claimant suffered no back or neck
injuries prior to the 2011 injury. Id. at 42. She has not been released to work since
she had surgery in January 2013. Id. at 46. Claimant has not sought treatment since
the surgery because of the cost. Id. at 48. This testimony was corroborated by Dr.
Verna, who testified Claimant related she voluntarily discontinued treatment
because she couldn’t afford it and she “felt bad” he wasn’t getting paid. (Deposition
Testimony of Dr. Verna, 3/6/15, at 79-80.) Claimant testified she is still in need of
treatment and does not believe she is capable of working. (T.T., 6/11/14, at 49.)

                                         6
             Claimant testified at a second hearing on May 22, 2015. Claimant
averred she sits in her car while pumping gas because “it’s easier than standing
there.” (T.T., 5/22/15, at 12.) Claimant receives epidural shots to help with her back
pain. Id. at 13. The next treatment option recommended to Claimant involves
“burn[ing] her nerves.” Id. at 14. Claimant has not yet scheduled that procedure
because she is “in the process of getting brave enough to do it.” Id. She is capable
of carrying an 11-pound bag of dog food. Id. at 14-15. However, when Claimant
planted flowers, her husband prepared the pots so she could sit on the stoop and “put
them in.” Id. at 16.
             The WCJ explicitly found Claimant’s testimony credible regarding her
symptoms and continued disability related to the 2011 injury. (WCJ Decision,
8/24/15, at 9.) Per Latta, Claimant was only required to testify her prior work-related
injury continued. The burden thereafter shifted to Employer to prove otherwise.
Employer’s expert was found by the WCJ to be less credible than Claimant’s because
he saw Claimant on only one occasion and agreed that Claimant reported pain and
tenderness on examination. Id. at 10. The Board made no findings with regard to
Claimant’s credibility and acknowledged that the WCJ is the “sole authority for
determining the weight and credibility of evidence.”         Lombardo v. Workers’
Compensation Appeal Board (Topps Co., Inc.), 698 A.2d 1378, 1381 (Pa. Cmwlth.
1997). Absent from the Board’s opinion is any analysis of whether the testimony of
Employer’s expert was sufficient to rebut Claimant’s testimony that her work-related
injury continued.
             Consequently, we conclude the Board failed to exercise appropriate
review in light of the burden of proof set forth in Latta and a remand is required.
The issue on remand will be limited to whether the WCJ would reach the same


                                          7
conclusion on Claimant’s reinstatement petition without consideration of Dr.
Verna’s equivocal medical testimony. Given our dispositions on Claimant’s second
and third issues, we need not address Claimant’s remaining arguments.
             For these reasons, the order of the Board is vacated in part and affirmed
in part and this matter is remanded for proceedings consistent with this opinion.




                                       ___________________________
                                       JOSEPH M. COSGROVE, Judge




                                          8
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Cindi Martzen,
                    Petitioner            :
                                          :
             v.                           :
                                          :
Workers’ Compensation Appeal              :
Board (Jo-Ann Stores),                    :   No. 2043 C.D. 2016
                 Respondent               :


                                     ORDER


             AND NOW, this 27th day of December, 2017, the December 14, 2016
order of the Workers’ Compensation Appeal Board (Board) is vacated in part and
affirmed in part. We vacate the order of the Board to the extent it reverses the
decision of the Workers’ Compensation Judge (WCJ) to grant Cindi Martzen’s
Reinstatement and Penalty Petitions and deny the Termination Petition of Jo-Ann
Stores (Employer). We affirm to the extent the Board’s order affirmed the decision
of the WCJ to grant Employer’s Suspension Petition for the period of February 29,
2011 through July 6, 2012. This matter is remanded for proceedings consistent with
this opinion. Jurisdiction is relinquished.




                                        ___________________________
                                        JOSEPH M. COSGROVE, Judge
