            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

NFI Industries, Inc. and Gallagher             :
Bassett Services, Inc.,                        : No. 2314 C.D. 2015
                                               : Submitted: May 6, 2016
                              Petitioners      :
                                               :
                       v.                      :
                                               :
Workers' Compensation Appeal                   :
Board (Romero),                                :
                                               :
                              Respondent       :


BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                             FILED: August 2, 2016



               NFI Industries (Employer) and its third party administrator petition
for review of the October 28, 2015 order of the Workers’ Compensation Appeal
Board (Board) reversing the decision of a workers’ compensation judge (WCJ),
that granted Employer’s termination petition of the benefits payable to Pedro
Romero (Claimant) under the Pennsylvania Workers’ Compensation Act (Act).1
Because Employer failed to present unequivocal medical evidence of Claimant’s
full recovery from his accepted work-related injury, we affirm.



      1
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
              On July 15, 2010, Claimant injured his back while in the course and
scope of his employment as a truck driver, and began receiving benefits pursuant
to a WCJ’s order adopting the parties’ stipulation of injury and disability as a
“lumbar spine sprain/strain with L4-5 disc protrusion.” Claimant received $596.54
in weekly compensation benefits based on an average, pre-injury weekly wage of
$894.81. Reproduced Record (R.R.) at 14a.
              On August 13, 2012, Employer filed a termination petition averring
that Claimant had fully recovered from his work-related injury as of July 24, 2012.2
In support of its petition, Employer submitted the deposition testimony, report, and
Affidavit of Recovery, of Christopher F. Wagener, M.D., a board-certified
orthopedic surgeon, who stated that he examined Claimant on July 24, 2012. R.R.
at 31a-79a.
              Dr. Wagener testified that Claimant provided a history at the
examination, through a translator, reporting that he sustained the work-related
injury while unloading a truck and carrying multiple heavy items, when he felt low
back pain that progressed into bilateral lower extremity numbness and tingling in
his feet.     R.R. at 39a.      He stated that Claimant reported that he received
chiropractic and physical therapy under the care of Gene Levinstein, M.D., who
performed epidural steroid injections and medial branch blocks. R.R. at 39a-40a.
Additionally, Dr. Wagener said Claimant reported he was on several medications,
including: the muscle relaxant, Soma; the anti-inflammatory, Mobic; the narcotic
pain medication, Vicodin; and the sleeping aid, Ambien. R.R. at 49a-50a.

       2
          Employer also filed a petition to suspend benefits as of June 11, 2012, alleging that
Claimant voluntarily resigned his positon when work remained available. Subsequently, the
WCJ dismissed the petition as moot based on Employer’s voluntary withdrawal. That issue is
not raised on appeal.


                                              2
            Dr. Wagener testified that, on the day of the examination, Claimant
reported that he was experiencing low back pain without radiating pain and
paresthesias on the soles of his feet. He said Claimant reported that he felt these
symptoms worsened when sitting for long car rides and when going from a lying
down to standing position. In addition, Claimant reported that he felt better with
warm, moist compresses, bracing, and using a TENS unit, which Dr. Wagener
explained was an external device transmitting electricity through the body between
two leads placed on the skin that can potentially stop pain from radiating from the
back down into the lower body. R.R. at 40a, 50a.
            Dr. Wagener testified that he performed a physical examination on
Claimant, and found he was in no apparent distress. He stated Claimant could rise
from a seated to standing positon without difficulty, was able to heel and toe walk
without balance assistance, and used a stair step to get on the examination table.
He said Claimant had minimal tenderness to palpation about the paraspinal
muscles; no tenderness to palpation about the bony elements; full flexion and
extension of his lumbar spine; negative straight leg raise; full strength in both
lower extremities; sensation was intact to light touch; symmetric reflexes; and
provocative maneuvers of the sacroiliac joint were within normal limits. R.R. at
41a.
            Additionally, Dr. Wagener stated that he reviewed Claimant’s medical
records, including two separate MRIs. Dr. Wagener said that he found that there
was no significant compressive pathology, and no evidence of any significant disc
herniation, annular tear, or compressive neurologic lesion. R.R. at 42a-43a.
            Dr. Wagener said that Claimant had “a lumbar strain with evidence of
radiculitis by history,” which had clinically resolved as of the date of the


                                         3
examination. R.R. at 43a-44a. He found no evidence that would corroborate any
reason to have lower extremity symptoms. He stated that there was no ongoing
compressive pathology, and no evidence of any nerve tension signs. R.R. at 44a.
            Dr. Wagener testified that based on his review of Claimant’s history
and complaints, the physical examination, and his diagnostic impressions, he
believed Claimant had fully recovered from his work-related injury and could
perform his pre-injury job as a truck driver without restrictions. In addition, Dr.
Wagener opined that although he thought the overall treatment Claimant received
up until his examination was reasonable and medically necessary, he did not
believe Claimant would benefit from additional treatment. R.R. at 44a-46a, 63a.
            Dr. Wagener acknowledged that the stipulated work-related injury
was a “lumbar spine strain/sprain with an L4-5 disc protrusion,” and that he did not
rule this in or out, or even mention it in his Affidavit of Recovery. R.R. at 52a,
79a. He recognized that an overlap occurs in the medical field with the use of
bulge, protrusion, and herniation, but he thinks of them as “a continuum from best
to worst.” R.R. at 52a-53a. He stated that a disc protrusion at L4-5 could be a pain
generator, and that Claimant reported that he had symptoms of pain. R.R. at 54a.
            At the hearing on June 5, 2013, Claimant testified, through an
interpreter, that he had been out of work since October 2011, and had not returned
to work since November 2011. R.R. at 89a. Claimant stated that, before his work-
related injury, he worked as a truck driver, which required him to drive up to 12
hours a day and then unload the truck. R.R. at 91a.
            Claimant said that he treats with Dr. Levinstein once a month, where
he receives shots on his spine. R.R. at 90a-91a. In addition, Claimant said he is
prescribed hydrocodone, zolpidem, carrsoprodol, and meloxicam. R.R. at 90a.


                                         4
               Claimant stated that he worked a light-duty job for Employer for
approximately 15 months, and that he would try to return to that position if it was
offered to him. Claimant said that he does not believe he could perform his pre-
work-related injury job as a truck driver because he experiences pain and
inflammation in his back and cramps in his feet, cannot sit straight, and can only
drive up to three or four hours. Furthermore, he said that his symptoms worsen
with sudden movement or if he tries to lift something. R.R. at 91a-92a. He stated
that he can do daily activities, sometimes with the help of family and friends, such
as bathe, eat, shop, and household chores. R.R. at 93a. Finally, Claimant testified
that he has not worked since he left Employer, and that Dr. Levinstein has not
released him to return to work without restrictions. R.R. at 93a.
               In December 2013, the WCJ issued a decision finding that Employer
had met its burden of proving that Claimant had fully recovered from his work-
related injury as of July 24, 2012. The WCJ specifically found the testimony of
Dr. Wagener to be credible, persuasive, and competent in demonstrating that
Claimant’s work-related injury had resolved.3               Moreover, the WCJ found the
testimony of Claimant not credible where it conflicted with the testimony and
opinions of Dr. Wagener. The WCJ found that Claimant had a soft tissue strain
and sprain with an L4-5 disc protrusion that caused nerve symptoms radiating

       3
         The WCJ is the ultimate finder of fact and is entitled to accept or reject the testimony of
any witness, including a medical witness, in whole or in part. General Electric Co. v.
Workmen’s Compensation Appeal Board (Valsamaki), 593 A.2d 921, 924 (Pa. Cmwlth.), appeal
denied, 600 A.2d 541 (Pa. 1991). Witness credibility and evidentiary weight are within the
exclusive power of the WCJ and are not subject to appellate review. Hayden v. Workmen’s
Compensation Appeal Board (Wheeling Pittsburgh Steel Corp.), 479 A.2d 631, 635 (Pa.
Cmwlth. 1984). Further, the party with the burden must meet its burden of production and
burden of persuasion in order to prevail. Crenshaw v. Workmen’s Compensation Appeal Board
(Hussey Copper), 645 A.2d 957, 963 (Pa. Cmwlth. 1994).


                                                 5
down both legs, and found that upon Dr. Wagener’s clinical evaluation Claimant
had no objective findings of radicular symptoms, indicating that the earlier disc
protrusion was asymptomatic. Finding the “semantic differences” insignificant
between Dr. Wagener’s description of the injury and the stipulated description of
the work–related injury, the WCJ concluded that Claimant had fully recovered
from his work-related injury, whether described as a lumbar sprain and strain with
L4-5 disc protrusion or as a lumbar strain with radiculitis, as of July 24, 2012.
              Claimant appealed to the Board, arguing that the WCJ erred in
granting Employer’s termination petition where Employer failed to present
unequivocal medical evidence of Claimant’s full recovery.4 Specifically, Claimant
argued that the WCJ erred in finding Dr. Wagener competent where he did not
address the accepted work-related injury and conceded that Claimant continued to
have complaints consistent with his diagnosis of the work-related injury.
              The Board reversed the WCJ’s decision granting Employer’s
termination petition, finding Employer failed to present unequivocal medical
evidence of Claimant’s full recovery from his accepted work-related injury, and
that the WCJ improperly rendered an independent medical determination when he
did not find the “semantic differences significant” between the accepted work-
related injury and Dr. Wagener’s diagnosis. Cromie v. Workmen’s Compensation
Appeal Board (Anchor Hocking Corp.), 600 A.2d 677, 679 (Pa. Cmwlth. 1991).
The Board found that Dr. Wagener’s testimony was not competent when he opined
that Claimant had a lumbar strain with radiculitis by history, which had clinically

       4
          Although the WCJ indicated he had not received a copy of Dr. Levinstein’s deposition
transcript in a timely fashion, the Board noted that it was part of the certified record, and
indicated it was of little consequence since the focus was on whether Employer met its burden
through Dr. Wagener.


                                              6
resolved, and failed to address the accepted work-related injury of a lumbar
strain/sprain with L4-5 disc protrusion.             Relying on Elberson v. Workers’
Compensation Appeal Board (Elwyn, Inc.), 936 A.2d 1195, 1200 (Pa. Cmwlth.
2007), appeal denied, 944 A.2d 752 (Pa. 2008), the Board reasoned that because
Dr. Wagener did not recognize the accepted work-related injury, specifically the
disc protrusion, Employer failed to present unequivocal medical evidence that
Claimant fully recovered from the accepted work-related injury.5
              On appeal,6 Employer argues that the Board erred in reversing the
WCJ’s decision granting Employer’s termination petition, where the WCJ found
Dr. Wagener’s testimony competent and credible that Claimant’s work-related
injury had resolved by the time of his evaluation. Citing Westmoreland County v.
Workers’ Compensation Appeal Board (Fuller), 942 A.2d 213 (Pa. Cmwlth. 2008),
Employer argues that the WCJ has the power to “sua sponte” review and modify
the characterization of the injury, which the WCJ did when he found that Claimant
had fully recovered from the work-related injury, whether described as a lumbar
sprain/strain with L4-5 disc protrusion or lumbar strain with radiculitis.                   In
addition, Employer argues that the WCJ’s decision is supported by substantial
evidence, and that credibility determinations cannot be overturned on appeal.



       5
         As the Board noted, this is not the type of case where a medical expert was found to be
competent when he opined that the claimant fully recovered from any work injury that may have
been sustained. See To v. Workers’ Compensation Appeal Board (Insaco, Inc.), 819 A.2d 1222,
1225 (Pa. Cmwlth. 2003).
       6
         Our scope of review is limited to determining whether an error of law has been
committed, whether constitutional rights were violated, whether Board procedures were
followed, or whether necessary findings of fact are supported by substantial evidence. City of
Philadelphia v. Workers’ Compensation Appeal Board (Brown), 830 A.2d 649, 653 n.2 (Pa.
Cmwlth. 2003).


                                               7
              In a termination proceeding, the employer bears the burden of proving
a claimant has fully recovered from his work-related injury. Udvari v. Workmen’s
Compensation Appeal Board (USAir. Inc.), 705 A.2d 1290, 1293 (Pa. 1997). The
employer can meet this burden by presenting unequivocal and competent medical
evidence of a claimant’s full recovery from a work-related injury.7 Koszowski v.
Workmen’s Compensation Appeal Board (Greyhound Lines, Inc.), 595 A.2d 697,
699 (Pa. Cmwlth. 1991). However, “a medical expert’s opinion will not support a
termination if that medical expert does not acknowledge the accepted work injuries
and does not opine full recovery from those injuries.”                  Hall v. Workers’
Compensation Appeal Board (America Service Group), 3 A.3d 734, 740 (Pa.
Cmwlth. 2010).
              In Elberson, 936 A.2d at 1198-99, the claimant appealed the order of
the Board granting the employer’s termination petition because the employer’s
doctor failed to acknowledge the exact injury indicated in the notice of
compensation payable (NCP) and testify that the claimant had fully recovered.
Although the employer’s doctor testified that there was no clinical evidence of any
“abnormality” in the claimant’s spine, we found his testimony, without recognizing
the specific work-related injury, insufficient to establish that the claimant had fully
recovered from the specific work-related injury. Id. at 1200.
              Likewise, in GA & FC Wagman, Inc. v. Workers’ Compensation
Appeal Board (Aucker), 785 A.2d 1087, 1090 (Pa. Cmwlth. 2001), the employer


       7
         The issue of whether medical evidence is unequivocal and competent is a matter of law
subject to plenary, de novo review, and not a question of fact or credibility, as Employer
assumes. Terek v. Workmen’s Compensation Appeal Board (Somerset Welding & Steel, Inc.),
668 A.2d 131, 132 (Pa. 1995); BJ’s Wholesale Club v. Workers’ Compensation Appeal Board
(Pearson), 43 A.3d 559, 565 (Pa. Cmwlth. 2012).


                                              8
petitioned for review the order of the Board reversing a WCJ’s decision to grant
the employer’s termination petition.      As identified in the NCP, the claimant
sustained a back injury described as “exacerbation of pseudoarthrosis L4-5” for
which he received compensation benefits. The employer’s doctor testified that the
claimant had “sprained the muscle ligaments in his back” during the work-related
accident, and concluded that the claimant had recovered from his work-related
injuries. In addition, the employer’s doctor agreed that there was pseudoarthrosis
at the L4-5 region, and opined that it was of “no consequence.” The WCJ found
that the opinion of the employer’s doctor was not inconsistent with the general
nature of the injury described in the NCP, and concluded that the employer met its
burden of demonstrating that the claimant had fully recovered from his work-
related injury. The Board reversed because the employer’s doctor did not testify
that the claimant fully recovered from the work-related injury identified in the
NCP.    We affirmed the Board, agreeing that the employer did not submit
unequivocal medical evidence because the employer’s doctor did not recognize the
accepted work-injury identified in the NCP.        As such, we held that, without
recognizing the accepted work-related injury, it was impossible for the employer’s
doctor to provide an opinion that the claimant had fully recovered from the
accepted injury. Id at 1092.
             Although Employer cites to Fuller for the proposition that the WCJ
has the power to “sua sponte” review and modify the characterization of the injury,
this is not accurate. In Fuller, 942 A.2d at 214, the claimant, working as a certified
nurses’ aide, sustained a work injury while moving a patient. Accepting liability,
the employer issued an NCP for a lumbar strain, and, subsequently, filed a
termination petition. In denying the termination petition, the WCJ found that the


                                          9
claimant suffered a herniated L4-5 disc and lumbar radiculopathy as caused or
aggravated by the work injury. By doing so, the WCJ “implicitly amended the
NCP to include those injuries.”         Thereafter, the employer filed a second
termination petition, and presented the testimony of a medical expert who opined
that the claimant’s work-injury consisted of only a back strain, and did not address
the herniated L4-5 disc or lumbar radiculopathy. The WCJ denied the second
termination petition, and the Board affirmed. On appeal, we affirmed the Board’s
determination that the testimony of the employer’s doctor was not competent to
meet its burden because the doctor did not address the “accepted injuries” as found
by the WCJ during the first termination petition. Id. at 217-18.
             In Gillyard v. Workers’ Compensation Appeal Board (Pennsylvania
Liquor Control Board), 865 A.2d 991, 992 (Pa. Cmwlth. 2005), the claimant
petitioned for review the order of the Board, affirming a decision to terminate the
claimant’s benefits for a work-injury identified in the NCP as a lower back sprain
and strain. The claimant argued that a WCJ had found that the work-related injury
was “chronic sciatica at the L5-S1 distribution on the right side with disc bulging
at L5-S1,” and that the parties were bound by this under the doctrine of collateral
estoppel. Id. at 995. We reversed, concluding that the employer failed to meet its
burden when its doctor opined that the claimant recovered only from the lumbar
strain and sprain, and did not opine that the claimant fully recovered from the
established work-related injury. Id. at 996.
             Here, the accepted work-related injury, as adopted through the parties’
stipulation of injury and disability, was a “lumbar spine sprain/strain with L4-5
disc protrusion.” In reversing the WCJ, the Board found as a matter of law that Dr.
Wagener did not address the disc protrusion, and did not offer a dispositive opinion


                                         10
that Claimant recovered from the accepted work-related injury.        Contrary to
Employer’s argument, a WCJ is not competent to make an independent, medical
diagnosis. Liveringhouse v. Workers’ Compensation Appeal Board (Adecco), 970
A.2d 508, 514 (Pa. Cmwlth. 2009); Cromie, 600 A.2d at 679.           Because Dr.
Wagener did not acknowledge the accepted work-related injury and did not opine
full recovery for that injury, Employer failed to meet its burden of presenting
unequivocal and competent medical evidence in support of its termination petition.
            Accordingly, the Board’s order is affirmed.




                                      MICHAEL H. WOJCIK, Judge




                                        11
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

NFI Industries, Inc. and Gallagher       :
Bassett Services, Inc.,                  : No. 2314 C.D. 2015
                                         :
                         Petitioners     :
                                         :
                   v.                    :
                                         :
Workers' Compensation Appeal             :
Board (Romero),                          :
                                         :
                         Respondent      :



                                     ORDER


            AND NOW, this 2nd day of August, 2016, the order of the Workers’
Compensation Appeal Board dated October 28, 2015, is affirmed.




                                       __________________________________
                                       MICHAEL H. WOJCIK, Judge
