         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Emerald Johnson,                     :
                   Petitioner        :
                                     :
            v.                       : No. 640 C.D. 2017
                                     : SUBMITTED: September 8, 2017
Workers’ Compensation Appeal         :
Board (Philadelphia Coca-Cola),      :
                  Respondent         :


BEFORE:     HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE J. WESLEY OLER, JR., Senior Judge

OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE OLER, JR.                   FILED: October 13, 2017


            Emerald Johnson (Claimant), pro se, petitions for review of the March
30, 2017 order of the Workers’ Compensation Appeal Board (WCAB), which
affirmed the decision of a Workers’ Compensation Judge (WCJ) that granted
Philadelphia Coca-Cola Company’s (Employer) termination petition and denied
Claimant’s review petition. We affirm.


            On September 16, 2013, Claimant was injured in the course and scope
of his employment with Employer when his foot was caught between a pole and a
transport device known as a walkie-rider. Employer accepted the injury as a right
foot sprain in a Notice of Temporary Compensation Payable (NTCP), which later
converted to a Notice of Compensation Payable (NCP). (WCJ’s Findings of Fact,
Nos. 1, and 2.a - b; NTCP, at 1.)


               On April 9, 2015, Employer filed both a suspension and termination
petition, alleging that Claimant had fully recovered from his work-related injury as
of February 11, 2015, and that Employer had offered Claimant a specific job.
Claimant denied the material allegations and, on April 17, 2015, filed a review
petition, seeking to amend the NCP’s work-injury description to include a right foot
crush injury, right-sided tarsal tunnel, neuritis in the right foot posterior tibial nerve,
and complex regional pain syndrome (CRPS) in the right foot.1 Employer denied
Claimant’s allegations. (WCJ’s Decision, at 1.)


               A hearing was held before the WCJ at which Claimant presented his
deposition testimony and then further testified that he was crushed between a pole
and walkie-rider and his right foot was pinned. Claimant stated that he treats with
Dr. James J. Zaccaria, D.P.M. (Dr. Zaccaria) and Dr. Evan D. Frank, M.D. (Dr.
Frank), a pain specialist.       Claimant testified that he continues to have pain,
numbness, burning, and cold in his foot.            Claimant stated that he takes pain
medications and receives injections due to the work injury. Claimant does not wear
any orthotics; he wears regular socks and lace-up shoes, but sometimes uses a crutch
for support, according to his testimony. Claimant has not worked since the accident,
nor has he looked for work. Claimant feels he is not capable of working. Claimant
admitted that Dr. Zaccaria released him to return to work on October 1, 2015.
However, Claimant testified that he had severe pain and spasms at that time and by


      1
          CRPS is also known as RSD, reflex sympathetic dystrophy.
                                              2
October 6, 2015, Dr. Zaccaria again found him totally disabled and unable to return
to work. (WCJ’s Findings of Fact, Nos. 2.a - b, d, f, h – k, and 3.b – e.)


               Claimant also submitted the deposition testimony of Dr. Zaccaria, a
board certified podiatric surgeon. Dr. Zaccaria began seeing Claimant on October
7, 2013, and initially diagnosed him with “posterior tibial tendon pain; essentially
bruising/possible stress fracture in the midfoot, contusion, and some neuritic pain.”
Dr. Zaccaria testified that Claimant’s electromyogram (EMG) study was normal,
and the bone scan showed more reactive changes on the left side, possibly due to
compensating. Dr. Zaccaria referred Claimant to Dr. Frank for pain management.
(Id., No. 5.a – d.)


               Dr. Zaccaria’s diagnosis has changed over the last two years.2
Ultimately, at the deposition, Dr. Zaccaria diagnosed Claimant with only CRPS.
However, Dr. Zaccaria conceded that CRPS was listed only once in his records and
only as a possible diagnosis. Dr. Zaccaria agreed that Claimant’s right foot x-ray
was normal, and that magnetic resonance imaging (MRI) did not show any fractures
or misalignments, only multiple osseous contusions. Claimant’s EMG was normal
and the bone scan showed no signs of CRPS. Dr. Zaccaria further agreed that,
depending on the day, a patient with CRPS might not be able to wear socks or shoes.

       2
          On October 7, 2013, Dr. Zaccaria’s diagnosis was posterior tibial tendinitis and
capsulitis/bursitis. On October 12, 2013, his diagnosis changed to fracture cuboid right foot and
contusion. On November 4, 2013, Dr. Zaccaria diagnosed Claimant with bony contusion/stress
reaction/fracture of the right midfoot. On November 25, 2013, the diagnosis changed to status
post torsional injury to the right ankle and posterior tibial tendinitis. On December 9, 2013, Dr.
Zaccaria changed the diagnosis to neuritis of the right tarsal tunnel and posterior tibial tendinitis.
On December 27, 2013, it changed to possible tarsal tunnel status post trauma and status post bony
contusion to the midfoot. (WCJ’s Findings of Fact, No. 5.l.)
                                                  3
Dr. Zaccaria testified that he released Claimant to return to work without restrictions,
and that, subsequently, Claimant had a flare-up. Dr. Zaccaria testified that Claimant
is not cleared to return to work. (WCJ’s Findings of Fact, No. 5.d – p; WCAB’s
Decision, at 4.)


              Employer submitted the deposition testimony of Dr. Richard I. Katz,
M.D., who is board-certified in neurology. Dr. Katz examined Claimant on February
11, 2015, determining that Claimant’s only abnormalities were two areas of
pigmentation at injection sites, one on the right foot and one behind the right ankle.
Dr. Katz determined that there were no other positive objective findings. Dr. Katz
determined that the x-ray was normal; that the MRI showed no fractures or
misalignments; that the bone scan was not consistent with CRPS; and that Claimant
had no sign of CRPS in his right foot.3 Dr. Katz opined that Claimant had fully
recovered from the right foot sprain. (WCJ’s Findings of Fact, No. 4.a–e, g-h.)


              The WCJ found Dr. Katz credible and found Claimant and Dr. Zaccaria
not credible or persuasive where their testimony differed from that of Dr. Katz. (Id.,
Nos. 7-9.) The WCJ determined that Claimant failed to meet his burden of proving
that the work injury description should be expanded and, thus, denied Claimant’s
review petition. The WCJ also determined that Employer met its burden of proving
that Claimant had fully recovered from his work-related injury and was capable of
returning to work without restrictions and, therefore, granted Employer’s


       3
         Dr. Katz testified that an individual with CRPS would not likely be able to wear a sock
and lace-up shoes on the affected foot. (WCJ’s Findings of Fact, No. 4.j.)



                                               4
termination petition. Claimant appealed to the WCAB. On March 30, 2017, the
WCAB affirmed, and Claimant now petitions this Court for review.4


               Claimant argues that the WCJ erred in granting Employer’s termination
petition. Specifically, Claimant argues that the WCJ erred in determining that he
was fully recovered from the work-related injury based upon the testimony of Dr.
Katz. We disagree.


               The employer bears the burden of proof in a termination proceeding.
Udvari v. Workmen’s Compensation Appeal Board (USAir, Inc.), 705 A.2d 1290,
1291 (Pa. 1997).

               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.

Id. at 1293.


               Here, Dr. Katz testified that Claimant was fully recovered from his
work-related injury and could return to work without restriction. Further, Dr. Katz
testified that there were no objective medical findings to substantiate Claimant’s


       4
        Our review is limited to determining whether constitutional rights were violated, whether
the adjudication is in accordance with the law and whether the necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §
704.
                                               5
assertion of pain or CRPS. The WCJ is the ultimate factfinder and determines the
weight and credibility of evidence. Lombardo v. Workers’ Compensation Appeal
Board (Topps Company, Inc.), 698 A.2d 1378, 1381 (Pa. Cmwlth. 1997). “As such,
the WCJ is free to accept or reject the testimony of any witness, including medical
witnesses, in whole or in part.” Id. Here, the WCJ specifically found Dr. Katz more
credible and persuasive than Dr. Zaccaria and listed the reasons supporting this
determination. (See WCJ’s Findings of Fact, Nos. 8-9.) The WCJ did not err in
determining that Claimant was fully recovered from the work-related injury.


            Next, Claimant asserts that the WCJ’s determination was arbitrary and
capricious because Dr. Katz’s testimony was not supported by the evidence and,
therefore, was not credible. We disagree.


            Claimant asserts that Dr. Katz’s testimony was not credible because he
had a crush injury and has continued pain. Essentially, Claimant argues that he and
Dr. Zaccaria were more credible and that the WCJ erred in finding otherwise.
However, as stated previously, the WCJ determines credibility and we generally will
not disturb such determinations on appeal. See O’Rourke v. Workers’ Compensation
Appeal Board (Gartland), 83 A.3d 1125, 1132 (Pa. Cmwlth. 2014). Through Dr.
Katz’s credited testimony, the WCJ determined that Claimant’s work-related injury
had healed and that there were no objective signs of CRPS. A review of the record
indicates that Dr. Katz’s testimony was supported by the evidence. The WCJ issued
a well-reasoned, thoughtful decision, making findings of fact and credibility
determinations, and setting forth detailed reasoning for each determination. Thus,




                                        6
the WCJ appropriately determined, based upon Dr. Katz’s credible testimony, that
Employer met its burden in the termination petition.


            For these reasons, we affirm.



                                      __________________________________
                                      J. WESLEY OLER, JR., Senior Judge




                                         7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Emerald Johnson,                    :
                   Petitioner       :
                                    :
            v.                      : No. 640 C.D. 2017
                                    :
Workers’ Compensation Appeal        :
Board (Philadelphia Coca-Cola),     :
                  Respondent        :



                                  ORDER

            AND NOW, this 13th day of October, 2017, the order of the Workers’

Compensation Appeal Board in the above-captioned matter is affirmed.




                                    __________________________________
                                    J. WESLEY OLER, JR., Senior Judge
