IN THE COMMONWEALTH COURT OF PENNSYLVANIA

US Airways, Inc. and AIG, :

:

Petitioners :

:

v. : No. 1278 C.D. 2015

: Submitted: January 29, 2016

Workers’ Compensation Appeal :

Board (Genovese-Smith), :

:

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE COLINS FILED: May 11, 2016

US Airways, Inc. (Employer) and its insurer petition for review of an

order of the Workers’ Compensation Appeal Board (Board) that affirmed the 

decision and order of a Workers’ Compensation Judge (WCJ) granting the 

reinstatement petition of Paula Genovese-Smith (Claimant). Because the injury on 

which the reinstatement of benefits was based is a condition different from the 

accepted work injury and Claimant did not present unequivocal medical evidence 

that this new injury was caused by her work injury or by any work-related incident, 

we reverse.

Claimant, a flight attendant with Employer, suffered a fall getting into 

an airport van on September 16, 2007, in which she hit her head and right hip on 
2

the pavement. (12/28/11 WCJ Decision Findings of Fact (F.F.) ¶¶1, 8(c).) 

Employer accepted liability for this accident by a Notice of Temporary 

Compensation Payable (NTCP), converted by operation of law to a Notice of 

Compensation Payable (NCP), that described the work injury as a 

“contusion/laceration” of the “right hip, groin, forehead.” (12/28/11 WCJ Decision 

at 1; NTCP, R.R. at 47a.) Claimant returned to work in her pre-injury flight 

attendant position without restrictions three months later, and her disability 

benefits were suspended. (12/28/11 WCJ Decision F.F. ¶¶1, 8(c); 4/17/14 Board 

Decision at 5; 5/4/10 Hearing Transcript (H.T.) at 9, 18, R.R. at 118a, 127a.)

Claimant continued to work for Employer as a flight attendant until

2010, when she took a leave without pay at age 68 after she did not pass a 

recurrent training required by Employer. (12/28/11 WCJ Decision F.F. ¶¶1, 8(c);

5/4/10 H.T. at 9-10, 13-17, 22-24, R.R. at 118a-119a, 122a-126a, 131a-133a.) On 

February 22, 2010, Claimant filed the instant reinstatement petition, alleging that 

her work injury had worsened and caused a loss of earning power as of that date. 

On August 25, 2010, Claimant underwent right hip replacement surgery for 

degenerative arthritis of the right hip. (12/28/11 WCJ Decision F.F. ¶¶4, 8(a).) 

Employer, following a medical examination of Claimant, filed a termination 

petition asserting that Claimant had fully recovered from her work injury as of

December 1, 2010. 

The WCJ held hearings on the two petitions at which Claimant 

testified. Claimant testified that her right hip hurt following her September 2007 

fall and that this right hip pain continued when she returned to work and had 

increased. (5/4/10 H.T. at 9-13, 21, R.R. at 118a-122a, 130a.) Claimant further 

testified that her right hip pain affected her ability to perform in the recurrent 
3

training and that she had no problems with her right hip prior to her fall. (Id. at 8, 

13-14, 23, R.R. at 117a, 122a-123a, 132a.) 

Depositions of Dr. Baddar, the orthopedic surgeon who performed 

Claimant’s right hip replacement, and Dr. Elia, an orthopedic surgeon who 

examined Claimant on behalf of Employer, were submitted on the issues of 

Claimant’s condition in 2010 and whether the hip replacement was causally 

connected to Claimant’s September 2007 work-related fall. Both Dr. Baddar and 

Dr. Elia testified that Claimant suffered from severe degenerative right hip arthritis 

in 2010, that this arthritis was the reason for her hip replacement surgery and that 

Claimant had moderate to advanced arthritis in her right hip before her September 

2007 fall. (Baddar Dep. at 7-9, 16-20, 27, 31-32, R.R. at 19a-21a, 28a-32a, 39a, 

43a-44a; Elia Dep. at 21, 23-24, R.R. at 69a, 71a-72a.) Neither physician testified 

that Claimant continued to suffer from a right hip laceration or contusion in 2010. 

With respect to whether Claimant’s 2010 arthritic condition and 

surgery were caused by the September 2007 fall, Dr. Baddar testified on direct 

examination:

Q. With regard to the fall on September 16, 2007, can you tell 

us, with regard to this hip replacement surgery, with her 

condition indicated on the CT scan with the arthritis, could 

that arthritic condition be -- I'm sorry -- could the fall on 

9/16/07 precipitated [sic] the need for surgery that you 

recently performed?

A. Yes.

Q. And why is that?

A. It could have advanced or worsened the arthritis. In her 

case, taking it from being asymptomatic to symptomatic.
4

Q. The fact she had no symptoms in the past before the 

9/16/07 injury, do you believe that to be significant with 

regard to your opinion on that -- the need for surgery was

precipitated by this 9/16/07 event?

A. Yes, that’s reasonable.

Q. What does trauma of this nature do to a pre-existing 

condition of arthritis as reflected on the CT scan?

A. I mean, it’s variable, but it can very well -- if you have 

already got a joint or a tissue that’s injured, I mean, it’s more 

at risk to be worsened or damaged from a trauma. So, it is 

susceptible, and it’s more susceptible to an injury.

Q. Do you believe that’s what happened in this case?

A. Yes.

Q. Okay, and does trauma of this nature that she suffered on 

9/16/07, with this pre-existing arthritic condition, can that 

accelerate the need for the surgery that you performed in this 

case?

A. Yes.

Q. Okay. All right. Doctor, have all your opinions today 

been expressed to a reasonable degree of medical certainty?

A. Yes.

(Baddar Dep. at 9-11, R.R. at 21a-23a) (emphasis added). On cross-examination, 

Dr. Baddar stated that the issue on which he was offering his expert opinion was 

“whether a fall could have worsened her arthritis,” and further testified:

Q. Is it safe to say you cannot testify within a reasonable 

degree of medical certainty as to the exact cause of the 

claimant’s need to [sic] right hip surgery prior to your seeing 

her in August of 2010?

* * *
5

THE WITNESS: What I would say is that based on, as you’ve 

said, what the patient has described to me, that this was a 

precipitating factor for her head [sic] pain and, therefore, is a 

reasonable cause for her worsening of her arthritis and 

requiring a hip replacement.

* * *

Q. To be sure then, without seeing any medical records 

surrounding the CPPD [calcium pyrophosphate disease, noted 

as a possible condition on an MRI], you cannot testify to the 

exact cause of the claimant’s right hip condition which led to 

her surgery in 2010; correct?

A. Actually, no. I would say no. Again, the point I would be 

making is that I’m not arguing whether she had pre-existing 

arthritis. I think that’s established by her CT scan that was 

done two weeks after her injury. That’s of a longstanding 

nature. As to the question, did it worsen her arthritis, I think 

it’s reasonable. It doesn’t matter to me what was the 

underlying cause of her initial arthritis, whether that was from 

a pre-existing injury, CPPD or rheumatoid arthritis or 

anything or just osteoarthritis. The question, could it have 

worsened it no matter what the preceding cause is, yes, it 

could have worsened it.

(Id. at 25-26, 28-29, 31-32, R.R. at 37a-38a, 40a-41a, 43a-44a) (emphasis added). 

Dr. Elia opined that Claimant’s arthritis and hip replacement were unconnected to 

her 2007 injury and were due to the natural aging process. (Elia Dep. at 23-24, 

R.R. at 71a-72a.) 

On December 28, 2011, the WCJ issued a decision granting 

Claimant’s reinstatement petition and denying Employer’s termination petition. In 

this decision, the WCJ found Claimant’s and Dr. Baddar’s testimony credible and 

rejected the testimony of Dr. Elia to the extent that it conflicted with Dr. Baddar’s 

testimony. (12/28/11 WCJ Decision F.F. ¶8.) The WCJ found that Dr. Baddar 

“opined that ... [t]he fall claimant sustained on September 16, 2007 aggravated her 
6

pre-existing degenerative condition of the right hip and precipitated the need for 

the hip replacement surgery,” and concluded that Claimant had therefore satisfied 

her burden on the reinstatement petition of proving that she suffered a loss of 

earning power related to her work injury. (Id. F.F. ¶4, Conclusion of Law (C.L.)

¶2.) With respect to the termination petition, the WCJ found that Employer had 

not sustained its burden of proving that Claimant had fully recovered from her 

work injury. (Id. C.L. ¶3.) 

Employer timely appealed and the Board, on April 17, 2014, affirmed

the WCJ’s decision but remanded the case for a determination of whether 

Employer was entitled to a credit for Social Security retirement benefits that 

Claimant had received. On remand, a second WCJ issued a decision, not at issue 

in this appeal, holding that Employer was not entitled to any offset for Social 

Security benefits. On June 30, 2015, the Board affirmed this second WCJ decision 

and made final its April 17, 2014 affirmance of the WCJ decision granting 

Claimant’s reinstatement petition and denying Employer’s termination petition. 

This appeal followed.1

In this Court, Employer challenges only the WCJ’s ruling on

Claimant’s reinstatement petition and does not seek reversal of the denial of its 

termination petition. (Petitioner’s Br. at 8.) Employer argues that the WCJ erred 

in granting Claimant’s reinstatement petition because Dr. Baddar’s testimony was 

equivocal and therefore legally incompetent. We agree. 

 

1 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 constitutional 

rights were violated. Soja v. Workers’ Compensation Appeal Board (Hillis-Carnes Engineering 

Associates), 33 A.3d 702, 706 n.3 (Pa. Cmwlth. 2011).
7

A claimant who seeks reinstatement of suspended disability benefits

under the Workers’ Compensation Act2 must prove 1) that her earning power is 

once again adversely affected by her work injury and 2) that the disability that 

gave rise to her original claim continues. Bufford v. Workers’ Compensation 

Appeal Board (North American Telecom), 2 A.3d 548, 558 (Pa. 2010); Latta v. 

Workmen’s Compensation Appeal Board (Latrobe Die Casting Co.), 642 A.2d 

1083, 1084 (Pa. 1994); Dougherty v. Workers’ Compensation Appeal Board (QVC, 

Inc.), 102 A.3d 591, 595 (Pa. Cmwlth. 2014). Because a suspension of disability 

benefits acknowledges the continuation of the work injury and is based only on the 

fact that the claimant’s earning power is not affected, expert medical testimony that 

the work injury continues is not required and the claimant may satisfy the second 

element, continuation of the work-related disability, through her own testimony.

Latta, 642 A.2d at 1085; Dougherty, 102 A.3d at 595; Soja v. Workers’ 

Compensation Appeal Board (Hillis-Carnes Engineering Associates), 33 A.3d 702, 

708 (Pa. Cmwlth. 2011). Where, as here, the claimant had returned to her preinjury position with no restrictions, however, there is no presumption that loss of 

earning power is related to the work injury and the claimant must affirmatively 

prove that the work injury caused her loss of earnings. Dougherty, 102 A.3d at 

595; Trevdan Building Supply v. Workers’ Compensation Appeal Board (Pope), 9 

A.3d 1221, 1224 (Pa. Cmwlth. 2010). 

Moreover, the injury on which reinstatement of benefits is based must 

be the work injury recognized in the NCP or a prior decision granting disability 

benefits. Soja, 33 A.3d at 708; Wetterau, Inc. v. Workmen’s Compensation Appeal 

Board (Mihaljevich), 609 A.2d 858, 860 (Pa. Cmwlth. 1992); Riley Welding & 

 

2 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
8

Fabricating, Inc. v. Workmen’s Compensation Appeal Board (DeGroft), 608 A.2d 

598, 600 (Pa. Cmwlth. 1992). To obtain a reinstatement of suspended disability 

benefits, “the claimant must establish ‘that his earning power is once again 

adversely affected’ and that ‘it is the same disability ... for which he initially 

received workmen’s compensation benefits.’” Soja, 33 A.3d at 708 (quoting Riley 

Welding & Fabricating, Inc.) (ellipsis in original). Unless the causal connection 

between a new or different injury and the accepted work injury or the work 

accident is obvious, the claimant must present unequivocal medical evidence of 

causation. Namani v. Workers’ Compensation Appeal Board (A. Duie Pyle), 32

A.3d 850, 856 n.4 (Pa. Cmwlth. 2011); City of Pittsburgh v. Workers’

Compensation Appeal Board (Wilson), 11 A.3d 1071, 1075 (Pa. Cmwlth. 2011); 

Wetterau, Inc., 609 A.2d at 860. 

Here, Claimant’s disabling condition for which she sought 

reinstatement of benefits was not the same condition for which she had previously 

received workers’ compensation benefits. The only injuries to Claimant’s right hip 

that Employer accepted in its converted NTCP were a “contusion” and a

“laceration.” The condition from which Claimant suffered in 2010 and on which 

the WCJ based his grant of the reinstatement petition was degenerative arthritis of 

the right hip that necessitated hip replacement surgery. Because the causal 

connection between a contusion or laceration or a fall and severe arthritis more 

than two years later is not obvious and it was undisputed that Claimant had 

degenerative arthritis of her right hip prior to her work accident, Claimant was 

required to present unequivocal medical testimony that her September 2007 fall or 

the contusion or laceration suffered in that fall caused an aggravation of her right 

hip arthritis and need for hip replacement. City of Pittsburgh, 11 A.3d at 1072-77
9

(reversing amendment of NCP to add aggravation of cervical degenerative disc 

disease where NCP was for thoracic strain and unequivocal medical testimony 

supported only thoracic and cervical strains and rotator cuff tears); Wetterau, Inc., 

609 A.2d at 860 (claimant was required on reinstatement petition to prove by 

unequivocal medical testimony connection between injury to his ankle and surgery 

on that ankle more than two years later and six months after claimant returned to 

his time of injury job).

No unequivocal medical testimony was presented to the WCJ on 

which he could find that Claimant’s arthritis was aggravated by her work injury or 

work accident. Medical expert testimony that is less than positive or is based upon 

possibilities is equivocal and is not legally competent to establish a causal 

relationship. Lewis v. Workmen’s Compensation Appeal Board (Pittsburgh Board

of Education), 498 A.2d 800, 802 (Pa. 1985); Potere v. Workers’ Compensation 

Appeal Board (Kemcorp), 21 A.3d 684, 690-91 (Pa. Cmwlth. 2011); Merchant v. 

Workers’ Compensation Appeal Board (TSL, Ltd.), 758 A.2d 762, 770 (Pa.

Cmwlth. 2000). Whether a medical expert has unequivocally testified that the 

claimant’s injury and disability were caused by the workplace incident must be 

determined from examination of the medical witness’s entire testimony taken as a 

whole. Lewis, 498 A.2d at 803; Potere, 21 A.3d at 690; Merchant, 758 A.2d at 

770.

The only medical evidence of a causal relationship was Dr. Baddar’s 

testimony. Dr. Baddar, however, did not state at any point in his testimony that in 

his opinion, Claimant’s fall or her contusion or laceration aggravated or worsened 

her arthritis or that in his opinion, the need for hip replacement was caused by the 

fall or Claimant’s accepted work injury. To the contrary, Dr. Baddar repeatedly 
10

made clear on both direct examination and cross-examination that he was only 

offering an opinion that the fall “could have” advanced or worsened Claimant’s 

arthritis and “can” accelerate the need for surgery, and that the fall was a 

“reasonable” cause or explanation for the worsening of her arthritis and the need 

for hip replacement. (Baddar Dep. at 9-11, 25-26, 29, 31-32, R.R. at 21a-23a, 37a38a, 41a, 43a-44a.) Such testimony that a causal connection is possible or that it 

is a reasonable explanation does not constitute competent evidence. See, e.g.,

Merchant, 758 A.2d at 770-71 (testimony was equivocal and incompetent to prove 

causation where expert opined only that claimant’s medical problem “could well 

be” or “probably” was a result of the work injury and expert never stated that she 

believed that claimant developed the condition as a result of the work injury); 

Somerset Welding & Steel v. Workmen’s Compensation Appeal Board (Lee), 650 

A.2d 114, 117 (Pa. Cmwlth. 1994) (testimony that “something” aggravated 

claimant’s back problem and that the work incident “could” be that cause was 

equivocal and incompetent to prove causation where expert never expressed 

opinion that the work incident was the cause). 

The fact that the WCJ found Dr. Baddar credible and felt that his 

testimony was unequivocal does not change this. Whether expert testimony is 

equivocal is an issue of competence, not credibility, and is a question of law 

subject to this Court’s plenary, de novo review. Lewis, 498 A.2d at 803; BJ’s 

Wholesale Club v. Workers’ Compensation Appeal Board (Pearson), 43 A.3d 559, 

565 (Pa. Cmwlth. 2012); Potere, 21 A.3d at 690. 

Because the injury on which Claimant’s reinstatement petition was 

based was not her accepted work injury and there was no competent medical 

evidence that this different injury was caused by her work injury or the work 
11

accident, Claimant failed to satisfy her burden of proof that her loss of earning 

power was caused by her work injury. The Board’s order must therefore be 

reversed insofar as it affirmed the WCJ’s granting of Claimant’s reinstatement

petition.3 

____________________________________

JAMES GARDNER COLINS, Senior Judge

 

3

 Employer also seeks reversal of the grant of the reinstatement petition on the grounds that 

Claimant’s loss of income was unrelated to the work injury because she failed the recurrent 

training for a reason other than her hip pain and that the WCJ did not issue a reasoned decision. 

While we need not reach these issues, it does not appear that either of these arguments would 

constitute grounds for reversal. With respect to the first of these arguments, Claimant testified 

that her hip pain affected her performance in the recurrent training and the WCJ found that 

testimony credible. With respect to the second, although the WCJ erred as a matter of law in 

holding that Dr. Baddar’s testimony was unequivocal, his explanations of his credibility 

determinations and the bases for his decision are sufficient to satisfy the requirement of Section 

422 of the Workers’ Compensation Act that he issue 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 [its] rationale” and that “the workers’ compensation judge must adequately 

explain the reasons for rejecting or discrediting competent evidence.” 77 P.S. § 834. See Dorsey 

v. Workers’ Compensation Appeal Board (Crossing Construction Co.), 893 A.2d 191, 194-96 

(Pa. Cmwlth. 2006). 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

US Airways, Inc. and AIG, :

:

Petitioners :

:

v. : No. 1278 C.D. 2015

:

:

Workers’ Compensation Appeal :

Board (Genovese-Smith), :

:

Respondent :

O R D E R

AND NOW, this 11th day of May, 2016, the order of April 17, 2014 of 

the Workers’ Compensation Appeal Board in the above matter is REVERSED

insofar as it affirmed the granting of the reinstatement petition filed by Claimant

Paula Genovese-Smith.

____________________________________

JAMES GARDNER COLINS, Senior Judge