           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jennifer Vinci,                                  :
                                                 :
                        Petitioner               :
                                                 :
                 v.                              :   No. 545 C.D. 2015
                                                 :   Submitted: August 21, 2015
Workers’ Compensation Appeal                     :
Board (Tenet/MCP Hospital),                      :
                                                 :
                        Respondent               :


BEFORE:          HONORABLE BERNARD L. McGINLEY, Judge
                 HONORABLE PATRICIA A. McCULLOUGH, Judge
                 HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                             FILED: October 23, 2015

                 Jennifer Vinci (Claimant) petitions for review of an order of the
Workers’ Compensation Appeal Board (Board) that affirmed the decision and
order of a Workers’ Compensation Judge (WCJ) denying petitions that she filed in
2012 and 2013 to reinstate total disability benefits under the Workers’
Compensation Act (the Act)1 (Reinstatement Petition) and to review benefits to
expand the description of her work injury (Review Petition). We affirm.
                 On January 4, 1999, Claimant sustained a work-related injury to her
lower back while employed by Tenet/MCP Hospital (Employer). (2014 WCJ
Decision Finding of Fact (F.F.) ¶1; WCJ Ex. 2, 2008 WCJ Decision F.F. ¶2,

1
    Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
Supplemental Reproduced Record (Supp. R.R.) at 15b.) On March 29, 1999,
Employer issued a Notice of Compensation Payable (NCP) for that injury
describing it as a “back strain.” (2014 WCJ Decision F.F. ¶1; WCJ Ex. 1 NCP,
Supp. R.R. at 4b.) Claimant underwent spinal surgeries at the L4-5 level in 2001
and 2006 for this injury. (2014 WCJ Decision F.F. ¶¶6a, 8b-8c; Claimant Ex. 2,
Vinci Dep. at 6-7, 34-35, Reproduced Record (R.R.) at 36-37, 64-65; Claimant Ex.
3, Balderston Dep. at 9, 16-17, R.R. at 91, 98-99; 12/18/13 Hearing Transcript
(H.T.) at 9, R.R. at 271.)
             Employer in July 2007 filed a petition to modify Claimant’s
compensation benefits from total disability to partial disability based on a March
22, 2007 impairment rating evaluation (IRE) finding that Claimant had reached
maximum medical improvement (MMI) and had a whole body impairment of 13%.
(2014 WCJ Decision F.F. ¶¶2-3; WCJ Ex. 2, 2008 WCJ Decision at 1 & F.F. ¶¶4,
8, Supp. R.R. at 15b-16b; WCJ Ex. 1 IRE Report, Supp. R.R. at 5b-12b.) Claimant
filed a petition to review compensation benefits in August 2007 seeking to expand
the description of her work injury to include lumbar disc herniations at L4-5 and
L5-S1, severe post-operative degenerative changes in the lumbar spine, and
psychological injuries. (2014 WCJ Decision F.F. ¶4; WCJ Ex. 2, 2008 WCJ
Decision F.F. ¶6, Supp. R.R. at 16b.) On August 13, 2008, the WCJ to whom
these 2007 petitions were assigned granted Employer’s petition and modified
Claimant’s benefits to partial disability effective March 22, 2007, and denied
Claimant’s petition on the ground that Claimant had failed to show that the
additional injuries resulted from her 1999 work incident. (2014 WCJ Decision F.F.
¶¶3-4; WCJ Ex. 2, 2008 WCJ Decision Conclusions of Law (C.L.) ¶¶2-3 & Order,
Supp. R.R. at 19b.) Claimant appealed the WCJ’s Decision and Order on the 2007


                                        2
petitions, and both the Board and this Court affirmed. (2014 WCJ Decision F.F.
¶5; WCJ Ex. 1 Vinci v. Workers’ Compensation Appeal Board (Tenet/MCP
Hospital), (Pa. Cmwlth., No. 1688 C.D. 2009, filed April 21, 2010), Supp. R.R. at
20b-28b.)
            In May 2012, Claimant underwent surgery for a L5-S1 disc
herniation. (2014 WCJ Decision F.F. ¶¶8d, 12b; Claimant Ex. 3, Balderston Dep.
at 11-12 & Balderston Dep. Ex. 2, R.R. at 93-94, 163-164.) On November 27,
2012, Claimant filed the Reinstatement Petition, requesting modification of her
benefits from partial to total disability as of the date of her 2012 surgery. (2014
WCJ Decision at 1 of 8.) On July 17, 2013, Claimant filed the Review Petition,
seeking to expand the description of her work injury to include the L5-S1 disc
herniation for which she underwent the 2012 surgery. (Id.) The Reinstatement
Petition and Review Petition were consolidated for hearing and decision. (Id.)
            The WCJ held an evidentiary hearing at which Claimant testified and
also received testimony by trial deposition of three witnesses: Claimant, Dr.
Balderston, the orthopedic surgeon who performed Claimant’s 2001, 2006 and
2012 spinal surgeries, and Dr. Kahanovitz, an orthopedic surgeon who examined
Claimant on behalf of Employer. Dr. Balderston opined that the 2012 L5-S1 disc
herniation and May 2012 surgery were caused by Claimant’s 1999 work accident.
(Claimant Ex. 3, Balderston Dep. at 11-12, R.R. at 93-94.) Dr. Kahanovitz opined
that Claimant’s 2012 L5-S1 disc herniation and surgery were unrelated to
Claimant’s 1999 work injury and unrelated to her 2001 and 2006 surgeries for that
injury. (Employer Ex. 1, Kahanovitz Dep. at 15-17, 20, R.R. at 181-183, 186.)
            On April 24, 2014, the WCJ issued a decision denying Claimant’s
Reinstatement Petition and Review Petition. The WCJ found the testimony of Dr.


                                        3
Kahanovitz more credible and persuasive than causation testimony of Dr.
Balderston, concluding that Dr. Kahanovitz’s opinions that Claimant’s 2012 L5-S1
disc herniation and surgery were not caused by her 1999 work injury were
supported by Claimant’s MRI records and that Dr. Balderston’s testimony was less
consistent with those medical records. (2014 WCJ Decision F.F. ¶12b.) The WCJ
accordingly held that Claimant had not met her burden of proof on either petition
because she failed to show that the medical condition and surgery on which both
petitions were predicated were work-related. (Id. F.F. ¶¶12c-12d, C.L. ¶3.) The
WCJ further concluded that the Reinstatement Petition must be denied for the
additional reason that Claimant was required to show that she had an impairment
rating of 50% or higher to obtain reinstatement of total disability status and did not
introduce any such evidence. (Id. F.F. ¶12c, C.L. ¶2.) Claimant appealed, and on
March 10, 2015, the Board affirmed. This appeal followed.2
             Claimant argues that the WCJ erred in not finding that her 2012 L5-S1
disc herniation and surgery were work-related. This contention is without merit.
The evidence on the issue of causation was conflicting: Claimant presented
unequivocal medical testimony from Dr. Balderston relating the 2012 L5-S1 disc
herniation to the work injury and Employer presented unequivocal medical
testimony from Dr. Kahanovitz that there was no causal relationship between the
2012 L5-S1 disc herniation and the 1999 work injury or its treatment. The WCJ



2
  Our review is limited to determining whether an error of law was committed, whether the
WCJ’s necessary findings of fact are supported by substantial evidence or whether Board
procedures or constitutional rights were violated. Anderson v. Workers’ Compensation Appeal
Board (Penn Center for Rehab), 15 A.3d 944, 947 n.1 (Pa. Cmwlth. 2010).



                                            4
found Dr. Kahanovitz’s testimony credible and rejected Dr. Balderston’s testimony
on causation as less credible and less persuasive.
              Determination of credibility of witnesses is the prerogative of the
WCJ, not the role of the Board or this Court. Furnari v. Workers’ Compensation
Appeal Board (Temple Inland), 90 A.3d 53, 59-60, 70 (Pa. Cmwlth. 2014); Gann
v. Workers’ Compensation Appeal Board (MBS Management/Wellington East
Development), 792 A.2d 701, 704 (Pa. Cmwlth. 2002). The WCJ has exclusive
province over questions of credibility and evidentiary weight, and may accept or
reject the testimony of any witness, including medical experts, in whole or in part.
Furnari, 90 A.3d at 59, 70; Anderson v. Workers’ Compensation Appeal Board
(Penn Center for Rehab), 15 A.3d 944, 949 (Pa. Cmwlth. 2010); Rockwell
International v. Workers’ Compensation Appeal Board (Sutton), 736 A.2d 742,
743 n.1 (Pa. Cmwlth. 1999).
              The WCJ’s credibility determinations here were supported by the
record and well within her discretion.3              The fact that Dr. Balderston was
Claimant’s treating physician does not change this. While a WCJ may give greater
credence to a treating physician’s testimony, that is merely a factor that the WCJ
may weigh in assessing credibility; the WCJ is not required to find a treating


3
  Contrary to Claimant’s assertions, Dr. Kahanovitz fully explained that Claimant’s 2012 L5-S1
disc herniation was unconnected to earlier MRI findings of L5-S1 abnormalities and that it was
not caused by stress from Claimant’s L4-5 surgery. Dr. Kahanovitz testified that the 2012 L5-S1
disc herniation was an acute injury, not a chronic or progressive condition, and that it was a
distinct and different condition from the minor L5-S1 abnormalities on Claimant’s MRIs prior to
2012. (Employer Ex. 1, Kahanovitz Dep. at 15-16, 19-24, 39-43, R.R. at 181-182, 185-190, 205-
209.) Dr. Kahanovitz further testified that, while L4-5 fusion surgery is capable of increasing
stress at the L5-S1 level, that stress could only cause slowly progressive, degenerative changes,
not the type of acute L5-S1 herniation suffered by Claimant. (Id. at 18-20, 37-43, R.R. at 184-
186, 203-209.)


                                               5
physician credible or more credible than a non-treating medical expert. Anderson,
15 A.3d at 945, 948-49; Williams v. Workmen’s Compensation Appeal Board
(Montgomery Ward), 562 A.2d 437, 441 n.6 (Pa. Cmwlth. 1989). As this Court
aptly stated in Anderson, “Claimant essentially asks this Court to reweigh the
evidence. This Court will not do so.” 15 A.3d at 949.
               It was Claimant’s burden on both the Reinstatement Petition and
Review Petition to prove that her 2012 L5-S1 disc herniation was caused by her
1999 work injury. Anderson, 15 A.3d at 948; Pryor v. Workers’ Compensation
Appeal Board (Colin Service Systems), 923 A.2d 1197, 1205 (Pa. Cmwlth. 2006);
Huddy v. Workers’ Compensation Appeal Board (U.S. Air), 905 A.2d 589, 592-93
(Pa. Cmwlth. 2006) (en banc).              Given the WCJ’s credibility determinations,
Claimant could not meet her burden of proof and denial of both petitions was
required regardless of any other evidence or factual or legal issues in the case.
Anderson, 15 A.3d at 948-49; Pryor, 923 A.2d at 1205.4


4
  Claimant also contends that her 2012 L5-S1 disc herniation and surgery invalidated the 2007
IRE on the ground she had not attained MMI at the time of that IRE. This argument fails for two
reasons. First, given Claimant’s failure to meet her burden of proving that the 2012 L5-S1 disc
herniation and surgery were work-related, they are irrelevant to the validity of the IRE, as an IRE
assesses only the impairment from a claimant’s compensable work injury, not the claimant’s
overall medical condition. Section 306(a.2) of the Act, added by the Act of June 24, 1996, P.L.
350, No. 57, § 4, as amended, 77 P.S. § 511.2(1), (8)(i), (ii) (IRE evaluates only impairment
from “the compensable injury” and does not include “any … nonwork-related impairment”);
Duffey v. Workers’ Compensation Appeal Board (Trola-Dyne, Inc.), 119 A.3d 445, 450-51 (Pa.
Cmwlth. 2015). Second, regardless of whether the 2012 injury and surgery were work-related,
the validity of the 2007 IRE, conducted years before this reinstatement petition and upheld on
appeal to this Court, is beyond challenge, and any reinstatement of total disability status required
a showing that Claimant had an impairment rating of at least 50%. 77 P.S. § 511.2(4); Wingrove
v. Workers’ Compensation Appeal Board (Allegheny Energy), 83 A.3d 270, 275-76 (Pa. Cmwlth.
2014). As Claimant introduced no evidence of any impairment rating of 50% or greater, she
could not have prevailed on the Reinstatement Petition, in any event.


                                                 6
            For the foregoing reasons, we conclude that the WCJ committed no
error in denying Claimant’s Petitions in this matter. Accordingly, the order of the
Board is affirmed.




                                      ____________________________________
                                      JAMES GARDNER COLINS, Senior Judge




                                        7
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jennifer Vinci,                       :
                                      :
                  Petitioner          :
                                      :
            v.                        :   No. 545 C.D. 2015
                                      :
Workers’ Compensation Appeal          :
Board (Tenet/MCP Hospital),           :
                                      :
                  Respondent          :


                                 ORDER


            AND NOW, this 23rd day of October, 2015, the order of the Workers’
Compensation Appeal Board in the above matter is AFFIRMED.




                                   ____________________________________
                                   JAMES GARDNER COLINS, Senior Judge
