           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Carmelo Olivares Hernandez,             :
                                        : No. 2305 C.D. 2014
                         Petitioner     : Submitted: May 15, 2015
                                        :
                   v.                   :
                                        :
Workers’ Compensation Appeal            :
Board (Giorgio Foods, Inc.),            :
                                        :
                         Respondent     :


BEFORE:     HONORABLE BERNARD L. McGINLEY, Judge
            HONORABLE MARY HANNAH LEAVITT, Judge
            HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY SENIOR JUDGE FRIEDMAN                                 FILED: August 25, 2015

            Carmelo Olivares Hernandez (Claimant) petitions for review of the
December 10, 2014, order of the Workers’ Compensation Appeal Board (WCAB)
affirming the decision of a workers’ compensation judge (WCJ) to grant the
termination petition filed by Giorgio Foods, Inc. (Employer) and dismiss Employer’s
petition for review of a utilization review (UR) determination as moot. We affirm.


            On March 14, 2006, Claimant was injured while working as a mushroom
farm casing crew member for Employer. (WCJ’s Findings of Fact, 3/19/10, No. 2.)
The parties recognized the injury as a low-back strain in a January 27, 2007,
agreement for compensation. (WCJ’s Findings of Fact, 5/29/13, No. 1.)
             On August 11, 2009, Employer filed a suspension petition, which the
WCJ denied on March 19, 2010. In his written decision, the WCJ amended the
description of Claimant’s work-related injury to include a herniated disc at L4-5
pursuant to the parties’ stipulation. (WCJ’s Findings of Fact, 3/19/10, No. 22.)1


             On July 24, 2012, Employer filed a termination petition, alleging that
Claimant had fully recovered from his work injury as of June 20, 2012. Employer
also requested a UR of the treatment rendered to Claimant by Steven B. Schwartz,
M.D., from June 27, 2012, onward.            The reviewer, Vincent L. Ferrara, M.D.,
determined that Dr. Schwartz’s treatment, including surgery, was both reasonable and
necessary. On September 25, 2012, Employer filed a UR petition. Claimant returned
to work with restrictions on October 22, 2012, pursuant to Employer’s notice of
suspension of benefits.


             The WCJ held a hearing on Employer’s petitions on December 11, 2012.
Employer presented the deposition testimony of independent medical examiner
Christian I. Fras, M.D., a board-certified orthopedic surgeon, who examined Claimant
on June 20, 2012. (WCJ’s Findings of Fact, 5/29/13, No. 4a.) Dr. Fras observed that
Claimant exhibited a normal gait and stance uncharacteristic of a person with nerve
damage. (Id., No. 4b.) Based on Claimant’s negative straight-leg-raising test and
negative femoral-stretch test, Dr. Fras found no disc herniation at that time. (Id.) Dr.
Fras also noted that Claimant had painless range of motion in both hips with no
tenderness over the sacroiliac joints. (Id.) Dr. Fras’ review of a June 8, 2012,

      1
          WCJ Terry W. Knox issued the March 19, 2010, decision on Employer’s suspension
petition. WCJ Brian J. Puhala issued the May 29, 2013, decision on Employer’s termination and
UR petitions.

                                             2
magnetic resonance imaging (MRI) report revealed degenerative changes in
Claimant’s low back, including a potential annular tear and mild lumbar stenosis at
L4-5, but no disc herniation. (Id., No. 4d.) Dr. Fras opined that, as of the date of his
evaluation, Claimant had no ongoing low-back pathology and Claimant’s work-
related injury had fully resolved. (Id., Nos. 4c, 4e.)


             At the time of his examination, Dr. Fras believed that Claimant’s only
accepted work injury was a low-back strain. (Fras Report, 6/20/12, at 5.) In his
written report, however, Dr. Fras noted that Claimant’s medical records indicated the
presence of a herniated disc at an earlier time.         (Id.)   During his subsequent
deposition, Dr. Fras opined that “by the time of my evaluation of June 20, 2012,
[Claimant] ha[d] recovered from his work injuries of lumbar sprain and strain and
lumbar disc herniation.” (Fras Dep., 11/15/12, at 28.)


             Claimant presented the deposition testimony of Dr. Schwartz, a board-
certified neurological surgeon. (WCJ’s Findings of Fact, 5/29/13, No. 5a.) Dr.
Schwartz first examined Claimant in October 2011, five years after his work injury.
(Id., No. 5b.) Dr. Schwartz reviewed diagnostic studies, proceeded with conservative
treatment, and released Claimant to light-duty work. (Id., No. 5c.) Dr. Schwartz
admitted that he did not review medical records from Claimant’s prior doctors and
that he was unaware of records stating that Claimant had reported no more leg pain.
(Id., No. 5g.) In January 2012, Dr. Schwartz gave Claimant injection therapy, which
provided him excellent relief. However, Claimant’s symptoms had returned as of
March 13, 2012.      (Id., No. 5d.)    Dr. Schwartz opined that Claimant’s ongoing
symptoms, including the herniated disc, were related to his March 2006 work injury.
(Id., No. 5e.) On July 25, 2012, Dr. Schwartz performed a surgical fusion and lumbar

                                            3
discectomy on Claimant’s back at L4-5. (Id., No. 5f; see Schwartz Dep., 11/13/12, at
14-16.)


              The WCJ credited Dr. Fras’ testimony and discredited the testimony of
Dr. Schwartz, Claimant, and Donna M. Kulp, D.C., Claimant’s chiropractor.2 (WCJ’s
Findings of Fact, 5/29/13, Nos. 7-8.) The WCJ found that Dr. Fras offered clear
explanations as to why Claimant’s ongoing symptoms are unrelated to his work
injury.    (Id., No. 8a.)    Moreover, Dr. Fras’ diagnostic evaluations support the
conclusion that Claimant had fully recovered from the lumbar sprain and strain and
the herniated disc as of the date of his examination. (Id.) The WCJ further found that
Dr. Schwartz did not examine Claimant until five years after his injury and did not
review medical records from Claimant’s prior doctors. (Id., No. 8b.) Finally, the
WCJ found that both Dr. Schwartz and Dr. Kulp based their opinions on information
they received from Claimant, whom the WCJ specifically discredited. (Id., Nos. 7,
8b, 8c.)


              The WCJ concluded that Claimant had fully recovered from his work
injury as of June 20, 2012, the date of Dr. Fras’ examination. (WCJ’s Conclusions of
Law, 5/29/13, No. 4.) Therefore, the WCJ granted Employer’s termination petition
and dismissed Employer’s UR petition as moot because the UR petition concerned
treatment rendered after Claimant’s date of recovery. (Id., No. 5.)


              Claimant appealed to the WCAB, which affirmed.                     The WCAB
concluded that the WCJ issued a reasoned decision and that the WCJ’s grant of
       2
          The WCJ did not summarize either Claimant’s or Dr. Kulp’s testimony because he did not
find their testimony credible. (WCJ’s Findings of Fact, 5/29/13, Nos. 6-7.)

                                               4
Employer’s termination petition was supported by substantial, competent evidence.
Claimant now petitions this court for review.3


              Claimant first asserts that the WCAB’s conclusion that Claimant fully
recovered from his work injury as of June 20, 2012, is unsupported by substantial,
competent evidence. We disagree.


              An employer seeking to terminate “benefits bears the burden of proving
either that the claimant’s disability has ceased or that any current disability arises
from a cause unrelated to the claimant’s work injury.”                    Miller v. Workers’
Compensation Appeal Board (Peoplease Corporation), 29 A.3d 869, 871 n.6 (Pa.
Cmwlth. 2011).         “An employer meets this burden when its 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 [that] either substantiate the claims of
pain or connect them to the work injury.’” Id. (citation omitted). The burden of
proof in a termination proceeding “never shifts to the claimant, whose disability is
presumed to continue until proven otherwise.” Id. In order to terminate benefits, the
employer must prove that the claimant has recovered from all work-related injuries.
Central Park Lodge v. Workers’ Compensation Appeal Board (Robinson), 718 A.2d
368, 370 (Pa. Cmwlth. 1998).




       3
         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
            Claimant argues that Dr. Fras’ testimony was insufficient to support a
termination of benefits because he did not recognize Claimant’s accepted herniated
disc injury in rendering his medical opinion. Specifically, Claimant points out that:
(1) Dr. Fras testified that Claimant’s herniated disc had resolved between 2007 and
2008, even though it was not judicially recognized as a work injury until 2010; and
(2) Claimant underwent a surgical fusion and discectomy at L4-5 one month after Dr.
Fras’ examination.


            It is true that “a medical opinion that does not recognize the work-
relatedness of an injury previously determined to be work-related is insufficient to
support a termination of benefits.” O’Neill v. Workers’ Compensation Appeal Board
(News Corporation), 29 A.3d 50, 55 (Pa. Cmwlth. 2011).           However, even if a
medical expert disagrees with an accepted work injury, his or her “opinion is
competent if he [or she] assumes the presence of an injury and finds it to be resolved
by the time of the [independent medical examination].”             Hall v. Workers’
Compensation Appeal Board (America Service Group), 3 A.3d 734, 741 (Pa.
Cmwlth. 2010).


            A review of Dr. Fras’ testimony as a whole reveals that he did, in fact,
accept Claimant’s herniated disc as a work injury but believed, based on his physical
examination and the diagnostic studies, that Claimant’s herniated disc had resolved.
Dr. Fras opined, within a reasonable degree of medical certainty, that “by the time of
my evaluation of June 20, 2012, [Claimant] ha[d] recovered from his work injuries of




                                          6
lumbar sprain and strain and lumbar disc herniation.” (Fras Dep., 11/15/12, at 28.)4
Dr. Fras’ testimony, which the WCJ credited, was sufficient to support the WCJ’s
conclusion that Claimant had fully recovered from his work injury as of June 20,
2012. See O’Neill, 29 A.3d at 55-56 (concluding that the medical expert’s testimony
was sufficient to support a termination of benefits where the expert recognized the
claimant’s diagnoses, notwithstanding his skepticism, and testified within a
reasonable degree of medical certainty that the claimant fully recovered from her
work injuries); To v. Workers’ Compensation Appeal Board (Insaco, Inc.), 819 A.2d
1222, 1225 (Pa. Cmwlth. 2003) (affirming the termination of benefits where the
medical expert did not deny the existence of the work injury but believed that the
claimant’s subjective complaints did not stem from the work injury and opined that
the claimant fully recovered from any work injury sustained).


                 Next, Claimant asserts that the WCJ failed to issue a reasoned decision
under section 422(a) of the Workers’ Compensation Act (Act), Act of June 2, 1915,
P.L. 736, as amended, 77 P.S. §834,5 because he failed to offer adequate, objective
reasons for his credibility determinations. We disagree.


       4
         In his earlier written report, Dr. Fras stated, “Regardless of the etiology [of] the L4-5 disc
herniation or its causal nexus to the March 14, 2006, work injury, by the time of my evaluation,
[Claimant] has recovered from this disc herniation.” (Fras Report, 6/20/12, at 6.)

       5
           Section 422(a) of the Act provides in relevant part:

       All parties to an adjudicatory proceeding are entitled to a reasoned decision
       containing findings of fact and conclusions of law based upon the evidence as a
       whole which clearly and concisely states and explains the rationale for the decision[]
       so that all can determine why and how a particular result was reached. The [WCJ]
       shall specify the evidence upon which the [WCJ] relies and state the reasons for
       accepting it in conformity with this section. When faced with conflicting evidence,
(Footnote continued on next page…)
                                                    7
                The WCJ explained that he disbelieved Claimant’s testimony “based on
[his] personal observation of Claimant” at the hearing. (WCJ’s Findings of Fact,
5/29/13, No. 7.) It is well settled that the WCJ may base a credibility determination
solely on a witness’s demeanor when the witness testifies live before the WCJ, as in
this case. See Daniels v. Workers’ Compensation Appeal Board (Tristate Transport),
828 A.2d 1043, 1052-53 (Pa. 2003); U.S. Steel Mining Company v. Workers’
Compensation Appeal Board (Goretsky), 874 A.2d 711, 715 n.7 (Pa. Cmwlth. 2005).
Therefore, the WCJ’s stated reason for discrediting Claimant’s testimony was
sufficient to satisfy the reasoned decision requirement.


                With regard to deposition testimony, however, the WCJ must articulate
an objective basis for crediting one witness’s testimony over another’s. See Daniels,
828 A.2d at 1053. Here, the WCJ stated that he found Dr. Fras’ testimony more
credible than Dr. Schwartz’s because Dr. Fras clearly explained why Claimant’s
ongoing symptoms are unrelated to his March 2006 work injury. (WCJ’s Findings of
Fact, 5/29/13, No. 8a.)       Moreover, the WCJ found that Dr. Fras’ diagnostic
evaluations supported the conclusion that Claimant had fully recovered from both the
low-back strain and the herniated disc as of the date of his examination. (Id.) In
contrast, the WCJ found that Dr. Schwartz did not examine Claimant until five years
after his work injury, did not review Claimant’s prior medical records, and was
unaware of records stating that Claimant had reported no more leg pain. (Id., Nos.


(continued…)

       the [WCJ] must adequately explain the reasons for rejecting or discrediting
       competent evidence.

77 P.S. §834.

                                           8
5g, 8b.) Finally, the WCJ noted that both Dr. Schwartz and Dr. Kulp based their
medical opinions on information they received from Claimant, whom the WCJ
specifically discredited. (Id., Nos. 7, 8b, 8c.) Because the WCJ articulated objective
bases for his credibility determinations, his decision was reasoned under the Act.


             Finally, Claimant asserts that the WCJ erred in dismissing Employer’s
UR petition as moot. By granting the termination petition, the WCJ correctly found
that any treatment rendered after June 20, 2012, including Dr. Schwartz’s July 2012
surgery, was unrelated to Claimant’s March 2006 work injury. Therefore, the WCJ
properly dismissed the UR petition.


             Accordingly, we affirm.




                                       ___________________________________
                                       ROCHELLE S. FRIEDMAN, Senior Judge




                                           9
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Carmelo Olivares Hernandez,          :
                                     : No. 2305 C.D. 2014
                       Petitioner    :
                                     :
                 v.                  :
                                     :
Workers’ Compensation Appeal         :
Board (Giorgio Foods, Inc.),         :
                                     :
                       Respondent    :




                                    ORDER


           AND NOW, this 25th day of August, 2015, we hereby affirm the
December 10, 2014, order of the Workers’ Compensation Appeal Board.



                                     ___________________________________
                                     ROCHELLE S. FRIEDMAN, Senior Judge
