              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Hussey Copper, Ltd. and State          :
Workers’ Insurance Fund,               :
                  Petitioners          :
                                       :   No. 2338 C.D. 2015
            v.                         :
                                       :   Submitted: April 29, 2016
Workers’ Compensation Appeal           :
Board (Chiles),                        :
                Respondent             :


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                    FILED: January 19, 2017


            Hussey Copper, Ltd., and the State Workers’ Insurance Fund
(collectively, Employer) petitions for review of the October 26, 2015, order of the
Workers’ Compensation Appeal Board (Board), which affirmed the decision of the
Workers’ Compensation Judge (WCJ) denying Employer’s termination petition.

                          Facts and Procedural History
            Samuel Chiles (Claimant) suffered a work injury on September 11,
2004, when he hit a pothole while operating a forklift. Employer accepted liability
for a low back strain when it issued a Notice of Compensation Payable. (Reproduced
Record (R.R.) at 9a.)
             Employer had Claimant examined by its own physician, Jack Failla,
M.D., on August 18, 2007, and based on the results of that examination (full recovery
from lumbosacral sprain), Employer filed a termination petition.       In a decision
circulated February 25, 2009, WCJ Nathan Cohen chose to believe Claimant’s
treating physician, David Blinn, M.D., over Dr. Failla, and denied Employer’s
termination petition. (R.R. at 6a-15a.)
             On February 4, 2010, Employer had Claimant examined by another
physician in the same partnership as Dr. Failla, Gerard Werries, M.D. (R.R. at 25a.)
Because Dr. Werries found Claimant fully recovered from his work injury, Employer
filed another termination petition, which was granted by WCJ Tobin in a decision
circulated May 2, 2011.     (R.R. at 44a-50a.)   Once again, Claimant offered the
testimony of Dr. Blinn, and WCJ Tobin resolved the conflicting medical testimony as
follows:

             I find the opinions and testimony of Dr. Werries are more
             credible and persuasive than the testimony of Dr. Blinn and
             the claimant. Based upon the opinions and testimony of Dr.
             Werries, it is found as a fact that the claimant fully
             recovered from the work-related injury of September 11,
             2004, on February 4, 2010. Dr. Werries explained that the
             diagnostic studies of the claimant’s back show conditions
             which are not the result of the work-related injury. The
             work-related injury is a low back strain. Dr. Werries
             credibly explained how his examination findings and the
             diagnostic studies lead him to the conclusion that the
             claimant is fully and completely recovered from the work-
             related injury. His opinion comports with the objective
             medical evidence of record, and explains how the
             symptoms the claimant reports are not related to his work
             injury.
(WCJ’s Decision, 5/2/11, Finding of Fact No. 5; R.R. at 49a.)




                                          2
              Claimant’s appeal to the Board resulted in an order of January 2, 2014,
remanding the case to the WCJ “to render a determination as to whether Defendant
met its burden of proving a change in Claimant’s condition since the adjudication of
the previous Termination Petition.” (R.R. at 57a.)
              Upon remand, WCJ Tobin had retired and the matter was assigned to
WCJ Jones. (WCJ’s Decision, 9/26/14, Finding of Fact No. 2.) In a decision and
order circulated September 26, 2014, WCJ Jones saw his mandate as “a reweighing
of the evidence based on an independent judgment of all of the evidence of the case,”
so that when “the evidence has been reevaluated,” it did “not establish a change in
condition from the baseline measuring stick of WCJ Cohen’s prior decision finding
the claimant totally disabled.” (WCJ’s Decision, 9/26/14, Finding of Fact No. 10;
Conclusion of Law No. 1.) (Emphasis in original.) WCJ Jones based his decision on
two grounds: (1) Dr. Werries’s examination and diagnosis were “essentially the same
as Dr. Failla, [whose] opinion had been rejected by WCJ Cohen in the previous
termination petition;” and (2) Dr. Blinn offered “more persuasive evidence” than did
Dr. Werries. (WCJ’s Decision, 9/26/14, Finding of Fact No. 10.)
              The Board affirmed, holding that WCJ Jones did not exceed the scope of
the remand order, and that his findings were otherwise supported by substantial
evidence. (R.R.at 69a-79a.) Employer thereafter filed a petition for review with this
Court.
              On appeal,1 Employer argues that WCJ Jones erred by exceeding the
scope of the remand order and in concluding that Employer failed to establish a


         1
         Our scope of review is limited to determining whether findings of fact are supported by
substantial evidence, whether an error of law has been committed, or whether constitutional rights
have been violated. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704; Meadow
(Footnote continued on next page…)

                                                3
change in Claimant’s condition from the time of the disposition of the previous
termination petition. We disagree.

                                           Discussion
                                             Remand
               Pursuant to Section 419 of the Workers’ Compensation Act (Act)2, 77
P.S. §852, “the Board may remand a case when the WCJ’s findings are not supported
by substantial evidence or when the WCJ fails to make findings on a crucial issue for
a proper application of the law.” Reinert v. Workers’ Compensation Appeal Board
(Stroh Companies), 816 A.2d 403, 407 (Pa. Cmwlth. 2003).
               Upon remand, the WCJ has complete authority to decide the case within
the parameters prescribed by the Board. Budd Company v. Workers’ Compensation
Appeal Board (Kan), 858 A.2d 170, 179 (Pa. Cmwlth. 2004). A WCJ errs when he
exceeds those parameters. For example, where a Board order authorized the WCJ to
resolve issues of notice, average weekly wage, rate of compensation, medical
expenses, date of compensation, and litigation costs, the WCJ “improperly exceeded
the scope of the Board’s remand order” when he reconsidered whether that Claimant
suffered from occupational asthma. Clark v. Workers’ Compensation Appeal Board
(Wonder Bread Co.), 703 A.2d 740, 743 (Pa. Cmwlth. 1997). In other words, where
a case is remanded for specific and limited purpose, a WCJ may not decide issues not
encompassed within the remand but rather must confine his or her findings to the


(continued…)

Lakes Apartments v. Workers’ Compensation Appeal Board (Spencer), 894 A.2d 214, 216 n.3 (Pa.
Cmwlth. 2006).

      2
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §852.



                                                 4
stated purpose within the remand order. Budd Company, 858 A.2d at 180-81 (citing
McCloskey v. Workmen’s Compensation Appeal Board (J.H. France Refractories,
Inc.), 460 A.2d 237, 239 (Pa. 1983)).          Indeed, where a remand order is silent
concerning authority or direction to change the findings of fact, the WCJ upon
remand is within his or her rights to reverse the original decision upon making the
required credibility determinations. Reinert, 816 A.2d at 407.
             Our prior decision in Teter v. Workers’ Compensation Appeal Board
(Pinnacle Health System), 886 A.2d 721 (Pa. Cmwlth. 2005), is instructive. In Teter,
the WCJ originally granted a claimant’s claim petition without any explanation for
his credibility determinations.   The Board remanded the matter for the WCJ to
summarize the testimony of employer’s medical witness and explain the basis for his
rejection of that testimony. Upon remand, that WCJ summarized the testimony but
made new credibility determinations, finding the testimony of employer’s medical
witness as credible relating to the claimant’s full recovery as of a specified date,
thereby granting the claimant’s claim petition for a closed period.       The Board
affirmed and so did this Court, holding, “[t]he WCJ was required to review the
medical testimony and state the basis for his determinations. He was not required to
produce the same result as the initial decision.” Id at 723.
             In the present case, the Board’s order of January 2, 2014, remanded the
matter “for the WCJ to render a determination as to whether Defendant met its burden
of proving a change in Claimant’s condition since the adjudication of the previous
Termination Petition.” (R.R. at 57a.) Consistent with this remand order, WCJ Jones
reviewed the evidence and concluded that Employer failed to establish a change in
condition from the baseline measuring stick of WCJ Cohen’s prior decision finding




                                           5
Claimant totally disabled. Hence, WCJ Jones did not exceed the scope of the Board’s
mandate upon remand.
             This Court must now address whether there was substantial evidence on
the record to support WCJ Jones’s findings.


                 Employer Failed to Prove a Change in Condition
             Where an employer previously sought termination of benefits and was
denied, if it seeks termination later, it must prove a change in the claimant’s physical
condition since the prior adjudication. Lewis v. Workers’ Compensation Appeal
Board (Giles and Ransome, Inc.), 919 A.2d 922, 926-927 (Pa. 1997). In other words,
the baseline is the Claimant’s physical condition as found in the prior adjudication.
In the subsequent termination proceeding, the employer must prove full recovery, of
course, but there must also be a separate finding that the employee’s physical
condition has changed, for the good, since the last adjudication of disability.
Delaware County v. Workers’ Compensation Appeal Board (Browne), 964 A.2d 29,
35-36 (Pa. Cmwlth. 2008), and Prebish v. Workers’ Compensation Appeal Board
(Department of Public Welfare, Western Center), 954 A.2d 677, 683-684 (Pa.
Cmwlth. 2008).
             Here, WCJ Jones properly recognized the findings of WCJ Cohen’s
2009 decision as what were necessary “to establish claimant’s baseline condition.”
(WCJ’s Decision, 9/26/14, Finding of Fact No. 3.) WCJ Jones discussed at length the
testimony and findings of Drs. Werries and Blinn, resolving the factual dispute when
he believed Dr. Blinn over Dr. Werries. (WCJ’s Decision, 9/26/14, Findings of Fact
Nos. 5, 6, 8, and 10.)




                                           6
             Employer argues that WCJ Jones erred because he supposedly used the
findings of the prior defense doctor, Dr. Failla, as the baseline, instead of the prior
adjudication of WCJ Cohen. Employer focuses on a single sentence in WCJ Jones’s
decision, i.e., ; “[h]owever, a problem for [E]mployer is that Dr. Werries has agreed
that his examination and diagnosis is [sic] essentially the same as Dr. Failla, [and] his
opinion had been rejected by Judge Cohen in the previous termination petition.”
(WCJ’s Decision, 9/26/14, Finding of Fact No. 10.)
             However, Employer takes this sentence out of context and construes the
same as contrary to the substance of WCJ Jones’s Finding of Fact No. 10 and
Conclusion of Law No. 1, both of which specifically identify WCJ Cohen’s earlier
adjudication as the “measuring stick” against which credible medical evidence should
be applied in the present matter. Indeed, it is clear that WCJ Jones intended to use
the comparison of Dr. Werries and Dr. Failla to analyze the credibility of Dr. Werries.
Ultimately, WCJ Jones specifically found Dr. Werries not credible and that “the more
persuasive evidence is from Dr. Blinn over a period of time.” Id.
             Dr. Blinn testified that Claimant’s symptoms had remained consistent
since his first examination in 2007 and that he considered Claimant to be a “very
sincere person.” (WCJ’s Decision, 9/26/14, Finding of Fact No. 6.) He opined that
Claimant’s condition was related to his 2004 work injury, that said condition has
declined/worsened over time, and that Claimant is completely disabled from
performing his previous job. Id. He further opined that Claimant’s prognosis for
recovery was “poor” and that he likely had a “permanent condition.” Id. He noted
that, as of Claimant’s last examination, Claimant could not bend, twist, lift, or climb.
Id.




                                           7
              Based on his review of the testimony of Dr. Werries and Dr. Blinn, the
latter of which he found credible,3 WCJ Jones concluded, “[i]n weighing this record
on remand, I find that the employer failed to approve [sic] a change in condition
because claimant continues to remain disabled from his work injury based on the
most reliable and credible evidence of record.” Id. We find no error on the part of
the WCJ in reaching this conclusion.
              Accordingly, the order of the Board is affirmed.




                                                ________________________________
                                                PATRICIA A. McCULLOUGH, Judge




       3
         In a workers’ compensation proceeding, the WCJ is the ultimate fact finder and is the sole
authority for determining 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.



                                                8
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Hussey Copper, Ltd. and State         :
Workers’ Insurance Fund,              :
                  Petitioners         :
                                      :    No. 2338 C.D. 2015
            v.                        :
                                      :
Workers’ Compensation Appeal          :
Board (Chiles),                       :
                Respondent            :


                                   ORDER


            AND NOW, this 19th day of January, 2017, the order of the Workers’
Compensation Appeal Board, dated October 26, 2015, is hereby affirmed.



                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge
