          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Philadelphia Corporation for Aging        :
and Liberty Mutual,                       :
                         Petitioners      :
                                          :
                   v.                     :   No. 1226 C.D. 2017
                                          :   SUBMITTED: February 2, 2018
Workers' Compensation Appeal              :
Board (Canty),                            :
                       Respondent         :


BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE CHRISTINE FIZZANO CANNON, Judge
             HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                                     FILED: April 2, 2018

             Philadelphia Corporation for Aging and Liberty Mutual (collectively,
“Employer”) petition for review of an order of the Workers’ Compensation Appeal
Board (Board) that reversed the order of a Workers’ Compensation Judge (WCJ),
after remand, granting Employer’s petition to terminate the workers’ compensation
benefits of Adrian L. Canty (Claimant). We affirm.
             Claimant sustained an April 2012 work-related injury in the nature of
cervical, dorsal, and lumbar strains as the result of a car accident during the course
of her employment as an assessment worker for Employer. (WCJ’s September 21,
2016, Decision, Findings of Fact (F.F.) Nos. 4(a) and 12.) Following the initial
litigation, the WCJ granted her claim petition and dismissed Employer’s first
termination petition. Employer filed a second termination petition in September
2014, alleging that Claimant had fully recovered from her work injury as of August
13, 2014, the date of Steven Hausmann, M.D.’s independent medical examination
(IME). In July 2015, the WCJ granted Employer’s second termination petition,
concluding that, as of the date of the IME, Claimant was fully recovered from her
work injuries and able to return to her pre-injury job.
             In May 2016, the Board remanded the matter to the WCJ to determine
whether Employer had met its burden of establishing a change in Claimant’s
physical condition between the denial of the first termination petition and the second
in accordance with Lewis v. Workers’ Compensation Appeal Board (Giles &
Ransome, Inc.), 919 A.2d 922 (Pa. 2007). The WCJ issued a September 2016
decision with three new fact-findings and, once again, concluded that Employer had
met its burden. The Board reversed and Employer’s petition for review followed.
             On appeal, Employer maintains that the Board erred in determining that
the WCJ’s decision was not supported by substantial competent evidence. In
addition, Employer asserts that the Board improperly reweighed the evidence and
disregarded the WCJ’s credibility determinations, which Employer contends support
a conclusion that Claimant’s ongoing complaints are unrelated to the work injury.
Employer’s position is without merit.
             In order to terminate benefits based on the theory that a claimant’s
disability has reduced or ceased due to an improvement in physical ability: “[I]t is
first necessary that the employer’s petition be based upon medical proof of a change
in the claimant’s physical condition. Only then can the [WCJ] determine whether
the change in physical condition has effectuated a change in the claimant’s disability,
i.e., the loss of his earning power.” Id. at 926. Where termination has been denied
and the employer seeks a subsequent termination, the employer must establish that



                                          2
a change in physical condition has occurred since the preceding disability
determination. Id. “Absent this requirement ‘a disgruntled employer (or claimant)
could repeatedly attack what he considers an erroneous decision of a [WCJ] by filing
petitions based on the same evidence ad infinitum, in the hope that one [WCJ] would
finally decide in his favor.’” Id. (citations omitted). In summary, a simple finding
of full recovery is insufficient. The WCJ must render a fact-finding accepting as
credible a medical expert’s opinion of full recovery and that this constitutes a change
in the claimant’s physical condition since the last disability adjudication. Delaware
Cty. v. Workers’ Comp. Appeal Bd. (Browne), 964 A.2d 29, 35 (Pa. Cmwlth. 2008).
             In the present case, the WCJ issued three new fact-findings in response
to the Board’s directive to address Lewis. One finding recited the remand and the
reason therefore and the remaining two were as follows:

                    17. The undersigned finds that the weight of the
             medical evidence shows an improvement in the
             Claimant’s condition – a change in [her] condition – from
             the time of the first decision denying termination until the
             time of the second decision of July 20, 2015 granting
             termination. Among other things, [Michael Molter, D.O.],
             one of [her] treating doctors, found [her] at maximum
             medical improvement [MMI] just prior to Dr. Hausmann’s
             August 13, 2014 examination.             Additionally, the
             undersigned in my June 10, 2013 decision found [her] less
             than fully recovered, accepting Dr. Hausmann in part.
                   18. Two years had passed between the October 5,
             2012 and August 13, 2014 Dr. Hausmann examinations. I
             find Claimant improved in that interval – her condition
             changed – warranting a termination as of August 13, 2014.

(F.F. Nos. 17 and 18.) For the following reasons, we agree with the Board that
Employer failed to meet its burden.



                                          3
             As the Board noted, the WCJ on remand relied, in part, on the opinion
of Claimant’s treating doctor, Dr. Molter.         He opined that, just before Dr.
Hausmann’s 2014 IME, Claimant was at her maximum medical improvement
(MMI). The Board rejected the WCJ’s reliance on Dr. Molter, however, concluding
that a determination of “MMI does not signify a change in physical condition, but
rather that a claimant’s condition has stabilized and her condition is unlikely to
improve any further.” (Board’s August 10, 2017, Decision at 6.) The Board’s
analysis is sound.
             As even the WCJ acknowledged, MMI “is the point where no further
treatment is going to be effective for the patient and that is where they’re [sic] at; no
other treatment is available.” (F.F. No. 9(p).) In that regard, the WCJ in his finding
pertaining to Dr. Molter stated:

                    9(o). Dr. Molter found that they could do nothing
             else, so he found Claimant to be at [MMI]. There was no
             other treatment available, so that would make her
             recovered as much as she’s going to [be] from her
             accident. There are still the subjective complaints, but
             there isn’t any indication that she has any condition that
             was curable in any way.
                    ....
                    (q). Dr. Molter didn’t find Claimant to be fully
             recovered, but her injuries were basically soft tissue
             injuries and the abnormalities on the diagnostic study
             couldn’t be construed as being related. So the soft tissue
             injuries heal within eight to twelve weeks. They cannot
             really say why Claimant is still in pain. In terms of
             medical treatment for any specific traumatic injuries that
             occurred, there’s nothing further available because those
             injuries have healed at this point and fully resolved.

(Id., No. 9(o) and (q) (emphasis added)).



                                            4
             By way of analysis, the meaning of the MMI determination was that
there was nothing more to do for Claimant, not that there necessarily was a complete
healing and resolution of her work injuries. Accordingly, notwithstanding the
WCJ’s reference to the nature of soft tissue injuries, the above finding simply does
not support his conclusion that the MMI determination was tantamount to a change
in Claimant’s medical condition and full recovery since the last disability
adjudication.
             Moreover, as the Board observed, the testimony of Dr. Hausmann,
which the WCJ also found to be credible and relied upon, “indicated that both his
examinations of Claimant in 2012 and 2014 established substantially the same
findings and with residual symptoms.” (Board’s Decision at 6) (emphasis added).
In pertinent part, Dr. Hausmann testified as follows:

                   Q. Based upon the history that you took at your
             second IME and your physical examination and additional
             records that you had to review at that time, within a
             reasonable degree of medical certainty, did you form any
             opinions?
                     A. Well, my opinion was that she had strain injuries
             to the neck, mid and lower back. The prior scoliosis I felt
             made her slower to recover. I didn’t find any traumatic
             damage. I noted that the impact was fairly minor, and I
             didn’t see anything on the CAT scan to show any bony
             injury.
                     At that point, I didn’t think that any further
             treatment was appropriate. I thought at that point that she
             had reached a point of [MMI] and that she was going to be
             left with certain symptoms. And I felt that she could return
             to work as a social worker at that time and I felt that she
             was recovered with symptoms.
                   Q. I’m sorry, go ahead.
                   A. Recovered with residual symptoms.


                                          5
(Deposition of Dr. Hausmann, Notes of Testimony at 15-16; Reproduced Record at
13a) (emphasis added).
            The above evidence does not establish the requisite change in medical
condition nor an unequivocal medical opinion as to full recovery. Even had there
been shown a change in medical condition, “[d]isability is presumed until
demonstrated otherwise and it is the employer’s burden to prove that all disability
related to a compensable injury has ceased.” Browne, 964 A.2d at 34 (citation
omitted).
            Accordingly, we affirm.


                                      _____________________________________
                                      BONNIE BRIGANCE LEADBETTER,
                                      Senior Judge




                                        6
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Philadelphia Corporation for Aging       :
and Liberty Mutual,                      :
                         Petitioners     :
                                         :
                   v.                    :   No. 1226 C.D. 2017
                                         :
Workers' Compensation Appeal             :
Board (Canty),                           :
                       Respondent        :


                                   ORDER


            AND NOW, this 2nd day of April, 2018, the order of the Workers’
Compensation Appeal Board is hereby AFFIRMED.



                                       _____________________________________
                                       BONNIE BRIGANCE LEADBETTER,
                                       Senior Judge
