            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Lynette Fortune,                               :
                       Petitioner              :
                                               :
               v.                              :
                                               :
Workers’ Compensation Appeal                   :
Board (Sparc Services),                        :    No. 1465 C.D. 2018
                  Respondent                   :    Submitted: March 1, 2019


BEFORE:        HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                             FILED: June 27, 2019


               Lynette Fortune (Claimant) petitions for review of the October 1, 2018
order of the Workers’ Compensation Appeal Board (Board) affirming the decision
and order of Workers’ Compensation Judge Scott Olin (WCJ) that granted in part
and denied in part Claimant’s Claim Petition for Compensation Benefits (Claim
Petition) against Sparc Services (Employer) pursuant to the Workers’ Compensation
Act (Act).1 We affirm the Board.
               On August 10, 2015, Claimant filed a claim petition alleging that on
June 1, 2015, she suffered injuries to her right foot, right ankle, neck, both arms, and
both hands while getting up from her desk in the course of her employment as a
photo license technician with Employer. See Claim Petition dated August 10, 2015

      1
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
(Claim Petition); WCJ Decision Issued November 7, 2017 (WCJ Decision), Findings
of Fact (F.F.) 1. On August 30, 2015, Employer filed an Answer to Claim Petition
denying Claimant’s allegations. See Answer to Claim Petition filed August 30,
2015.
               After conducting a series of hearings, on November 9, 2017, the WCJ
issued a decision that granted the Claim Petition in part and denied the Claim Petition
in part. See WCJ Decision. The WCJ determined that Claimant established that she
suffered a work-related ankle injury on June 1, 2015 that persisted through October
18, 2015. See id. at 9. Therefore, the WCJ awarded Claimant weekly benefits for
that period of time. Id. However, the WCJ also determined that Claimant failed to
establish that the work injury caused continued disability as of October 19, 2015.
Id. Accordingly, the WCJ denied benefits as of October 19, 2015. Id. Claimant
appealed, claiming the WCJ erred by determining that her work injury was fully
resolved and/or limited to her ankle. See Claimant Appeal to Board filed November
29, 2017. The Board affirmed the WCJ Decision by opinion dated October 1, 2018.
See Board Opinion filed October 1, 2018 (Board Opinion).                      Claimant timely
petitioned this Court for review.2

        2
         In workers’ compensation appeals, this Court’s “scope of review is limited to determining
whether constitutional rights have been violated, whether an error of law was committed and
whether necessary findings of fact are supported by substantial evidence.” Morocho v. Workers’
Comp. Appeal Bd. (Home Equity Renovations, Inc.), 167 A.3d 855, 858 n.4 (Pa. Cmwlth. 2017)
(citing Johnson v. Workers’ Comp. Appeal Bd. (Dubois Courier Express), 631 A.2d 693 (Pa.
Cmwlth. 1993)).

                 Substantial evidence is such relevant evidence a reasonable person might
        find sufficient to support the WCJ’s findings. In determining whether a finding of
        fact is supported by substantial evidence, this Court must consider the evidence as
        a whole, view the evidence in a light most favorable to the party who prevailed
        before the WCJ, and draw all reasonable inferences which are deducible from the
        evidence in favor of the prevailing party.


                                                2
             On appeal, Claimant alleges the Board erred by affirming the WCJ
Decision that limited her work injury to her right foot and ankle and determined that
the injury had resolved, and, consequently, that Claimant’s entitlement to benefits
had ceased as of October 19, 2015. See generally, Claimant’s Brief. We disagree.
             “With respect to a claim petition, the claimant bears the initial burden
of proving that [an] injury arose in the course of employment and was related
thereto.” Frankiewicz v. Workers’ Comp. Appeal Bd. (Kinder Morgan, Inc.), 177
A.3d 991, 995 (Pa. Cmwlth. 2017). “Moreover, the claimant not only must prove
that she has sustained a compensable injury but also that the injury continues to cause
disability throughout the pendency of the claim petition proceeding.” Milner v.
Workers’ Comp. Appeal Bd. (Main Line Endoscopy Ctr.), 995 A.2d 492, 496 (Pa.
Cmwlth. 2010). “If the WCJ feels that the evidence supports a finding of disability
only for a closed period, she is free to make such a finding.” Id. “Generally, if there
is no obvious relationship between the disability and the work-related cause,
unequivocal medical testimony is required to meet this burden of proof.”
Frankiewicz, 177 A.3d at 995. “Medical evidence is considered unequivocal if the
medical expert, after providing a foundation, testifies that in his medical opinion, he
thinks the facts exist.” Craftsmen v. Workers’ Comp. Appeal Bd. (Krouchick), 809
A.2d 434, 439 (Pa. Cmwlth. 2002).
             Here, Claimant testified before the WCJ on October 1, 2015. F.F. 3.
She explained that, as she rose from a chair at her sedentary job on Monday, June 1,
2015, she felt an immediate, sharp pain in her right foot and grabbed onto a chair to
avoid falling. F.F. 4. Claimant explained that her foot did not hurt following the
initial incident, and so she worked a few more days until she felt the pain again on

Frog, Switch & Mfg. Co. v. Workers’ Comp. Appeal Bd. (Johnson), 106 A.3d 202, 206 (Pa.
Cmwlth. 2014) (internal quotations and citations omitted).
                                          3
the weekend. Id. Claimant testified that after working the following Monday, June
8, 2015, she began to experience muscle spasms in her back and throbbing in her
foot. Id. She further claimed she developed neck pain, which she attributed to
twisting while turning to grab the chair on June 1, 2015. Id. Claimant explained she
went to see a doctor who placed her on medical leave for two weeks, that she stopped
all work on June 16, 2015, and that she cannot physically return to her pre-injury
duties. Id. Claimant testified that, at the same time she worked for Employer, she
also worked as a volunteer investigator for a Channel Six television show for four
hours a week. Id. On cross-examination, Claimant conceded that the pain she
experienced following the June 1, 2015 incident was initially limited to her right
heel, but stated that she now experiences pain in both arms, both thumbs, her entire
lower back, both legs, and her neck. F.F. 4A. She further conceded that her alleged
neck and back pain did not appear until days after the initial incident. Id.
             Claimant also presented the deposition testimony of Bruce Levin, M.D.
F.F. 3.   Dr. Levin, a board-certified anesthesiologist with expertise in pain
management, testified that he has treated Claimant since September 21, 2015. F.F.
5.   Dr. Levin explained that, during his initial examination of Claimant, she
explained the mechanism of her injury by stating that she had lost her footing,
twisted her ankle, then lost her balance and jerked herself back. Id. Dr. Levin
testified that Claimant alleged pain in her lower back, right foot, heel and neck that
radiated into both her hands and thumbs. Id. Dr. Levin’s examination revealed
reduced ranges of back and neck motion as well as positive signs for radiculitis and
radiculopathy. Id. Dr. Levin also testified that his review of Claimant’s lumbar and
cervical MRIs revealed degenerative changes and protrusions on the left at L4-5 and
L5-S1 and cervical protrusions and herniations at every level. Id. Dr. Levin


                                          4
explained that, despite his prescriptions, Claimant did not want to take pills and
declined injections, although she responded somewhat to a regimen of physical
therapy and topical medications. Id. Ultimately, Dr. Levin had diagnosed a work-
related right ankle sprain with tarsal tunnel syndrome, cervical and lumbar
strain/sprain, cervical herniations with radiculopathy, and an aggravation of
underlying degenerative disc disease. Id. Dr. Levin deemed Claimant unable to
return to work. Id. On cross-examination, Dr. Levin stated that it was “possible”
that Claimant’s lower back complaints were related to the work incident. F.F. 5A.
               Claimant also presented the deposition testimony of Marc Baer, D.P.M.
F.F. 3. Dr. Baer, a podiatrist certified in foot and ankle reconstruction, began treating
Claimant on September 2, 2015. F.F. 6. Dr. Baer reviewed Claimant’s medical
records, which he testified illustrated tendonitis around the Achilles tendon with
mild ankle arthritis and osteochondral defects in the ankle joint in Claimant’s right
ankle.   Id.    Upon physical examination, Dr. Baer found normal strength in
Claimant’s right foot and ankle tendons with no bruising or swelling and no Achilles
tear, although minimal inflammation was observed. Id. Dr. Baer prescribed a walker
boot and a regimen of the steroid Medrol. Id. Subsequent examinations through
February 3, 2016 revealed continuing symptomology, prompting Dr. Baer to
prescribe a Molded Ankle-Foot Orthosis brace. Id. Dr. Baer opined that Claimant
suffered a work-related ankle injury, but could not determine whether Claimant’s
reported pain resulted from this injury or from her back. Id. Dr. Baer testified that
he would limit Claimant’s walking and standing and impose a 10-pound lifting
limitation. Id. On cross-examination, Dr. Baer indicated that Claimant can perform
sedentary employment. F.F. 6A. He conceded that he lacked information sufficient
to diagnose Claimant with tarsal tunnel syndrome, and further conceded that his


                                           5
initial examination found no objective findings beyond Claimant’s subjective
complaints of pain. Id.
             To contest Claimant’s evidence, Employer presented the deposition
testimony of Barry Bussell (Bussell), one of its directors. F.F. 7. Bussell testified
that he hired Claimant in 2014 and that her license photo technician position was
“absolutely” sedentary in nature. F.F. 8. He further testified that Claimant originally
called out of work due to a non-work-related hand injury. Id. Bussell testified
Claimant’s last day was June 16, 2015, and that Employer did not learn of her alleged
work injury until July 17, 2015. Id.
             Employer also presented the deposition testimony of David Glasser,
M.D. F.F. 7. Dr. Glasser, a board-certified orthopedic surgeon, testified that he
evaluated Claimant on October 19, 2015, at which time she walked with a normal
gait and displayed a full range of shoulder motion. F.F. 9. Dr. Glasser explained
that, despite Claimant’s subjective complaints of neck pain, she tested negative for
nerve irritation, nerve compression, and thoracic outlet syndrome. Id. Claimant’s
arm elevated normally, her ankle was stable with no signs of effusion or Achilles
pathology, and her spine was free of muscle spasms. Id. While a review of
Claimant’s historical imaging studies illustrated longstanding degenerative changes
at every level of the spine, Dr. Glasser’s clinical testing did not indicate to him any
specific issue with Claimant’s neck or lumbar spine. Id. Ultimately, Dr. Glasser
explained that he found no objective signs of any injury to the musculoskeletal
system that he could attribute to the alleged work-related injury. Id. As such, Dr.
Glasser released Claimant back to work without restrictions or need for further
medical treatment. Id. On cross-examination, Dr. Glasser noted discrepancies in
the various treating physicians’ medical records regarding the onset of Claimant’s


                                          6
alleged neck and lower back pain. F.F. 9A. He did note, however, that some records
initially restricted Claimant’s ability to work based on pain in her right foot. Id.
             Employer also presented the deposition transcript of Joshua L. Moore,
D.P.M. F.F. 7. Dr. Moore, a board-certified podiatrist, evaluated Claimant on
September 21, 2015. F.F. 10. Despite Claimant’s initial subjective complaints of
pain, Dr. Moore’s examination found that Claimant’s muscle strength and sensation
were intact with no pain along the course of the Achilles or in the area where
Claimant initially reported pain. Id. Following his examination, Dr. Moore could
not pinpoint an area of pain or provide a diagnosis, and he released Claimant to pre-
injury duties without need of further medical treatment. Id. On cross-examination,
Dr. Moore noted either a small amount of fluid in Claimant’s posterior subtalar joints
or a defect of the cartilage, but explained that Claimant does not suffer from a talar
dome lesion. F.F. 10A.
             Additionally, Employer submitted multiple exhibits into evidence. See
F.F. 11-15. These exhibits included: (1) medical records from Industrial Health
Center and Einstein Medical Center detailing Claimant’s foot and ankle treatment;
(2) medical records from Progressive Physical Therapy regarding her neck sprain
and hand joint pain; (3) medical records from her treating physician detailing her
treatment from July 2007 through August 2015; (4) Claimant’s June 17, 2015 letter
to Employer detailing her work accident; and (5) three photographs of Claimant’s
pre-injury workspace. Id.
             Claimant testified in rebuttal before the WCJ on September 8, 2016.
F.F. 16. At that time, Claimant explained that her right foot pain had resolved, but
that her back continues to spasm daily. Id. She testified that she treats her back
spasms with aloe vera and a Lidocaine patch. Id. Claimant explained that she has


                                           7
returned to her volunteer position for Channel Six, and she attends weekly physical
therapy for her foot, back, and neck. Id. She also testified that she had telephoned
on June 18, 2015 and notified Employer that she had been injured at work. Id.
            As this Court has previously noted:

            [t]he WCJ is the fact finder, and it is solely for the WCJ .
            . . to assess credibility and to resolve conflicts in the
            evidence. Neither the Board nor this Court may reweigh
            the evidence or the WCJ’s credibility determinations. 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.

Hawbaker v. Workers’ Comp. Appeal Bd. (Kriner’s Quality Roofing Servs. &
Uninsured Employer Guar. Fund), 159 A.3d 61, 69 (Pa. Cmwlth.), reargument
denied (Apr. 3), appeal denied, 173 A.3d 252 (Pa. 2017) (internal citations,
quotations, and brackets omitted).
            Based on the evidence presented, the WCJ made the following factual
determinations:

            (a) that [the] testimony of [Claimant] of experiencing right
            ankle/foot pain arising from her work chair and planting
            her foot on the ground on June 1, 2015 is credible;

            (b) that [the] findings and conclusions of Dr. Levin of
            neck/low back pathology resulting from the work incident
            are not credible and less persuasive than [the] contrary
            testimony of Dr. Glasser;

            (c) that Dr. Glasser’s findings and conclusions of full
            recovery from all physical residuals of [] Claimant’s June
            1, 2015 work incident are fully credible and more
            persuasive than contrary testimony of Drs. Baer and

                                         8
               Levin.    Dr. Moore’s findings/conclusions are also
               persuasive;

               (d) that Claimant’s testimony of ongoing right foot/ankle
               pain beyond October 18, 2015 is unpersuasive and not
               credible;[3] and

               (e) that Claimant stopped work on June 16, 2015.

F.F. 17.
               As a result of the WCJ’s credibility determinations, which we must
accept, as did the Board,4 we find that substantial record evidence supports the
WCJ’s findings of fact, specifically that Claimant had suffered a work-related injury
on June 1, 2015, from which she had fully recovered as of October 19, 2015.
Therefore, the WCJ properly awarded Claimant compensation benefits from June
17, 2015 through October 18, 2015, and properly terminated Claimant’s
compensation benefits from October 19, 2015 onward. See WCJ Decision at 9 &
Order. Claimant’s assertions of error represent nothing more than a challenge to the
WCJ’s credibility determinations and an attempt to argue her preferred version of
the facts. The Board did not err in affirming the WCJ’s Decision.
               Accordingly, the Board’s order is affirmed.




                                         __________________________________
                                         CHRISTINE FIZZANO CANNON, Judge




      We note the WCJ described Claimant’s testimony as “highly problematic” and “a mess.”
      3

WCJ Decision at 7-8.
      4
          See Board Opinion at 4-5.
                                            9
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Lynette Fortune,                      :
                   Petitioner         :
                                      :
            v.                        :
                                      :
Workers’ Compensation Appeal          :
Board (Sparc Services),               :   No. 1465 C.D. 2018
                  Respondent          :


                                 ORDER


            AND NOW, this 27th day of June, 2019, the October 1, 2018 order of
the Workers’ Compensation Appeal Board is AFFIRMED.




                                    __________________________________
                                    CHRISTINE FIZZANO CANNON, Judge
