IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Todd Bartee, :

: No. 2019 C.D. 2015

Petitioner : Submitted: April 15, 2016

:

v. :

:

Workers’ Compensation Appeal : Board (Pocono Mountain School : District), :

: Respondent :

Pocono Mountain School District :

and Inservco Insurance Services, : No. 2087 C.D. 2015

: Submitted: April 15, 2016

Petitioners :

:

v. :

:

Workers’ Compensation Appeal : Board (Bartee), :

: Responden t :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY SENIOR JUDGE FRIEDMAN FILED: July 6, 2016

Todd Bartee ( Claimant ) petitions for review and Po cono Mountain

School District ( Employer) cross petitions for review f r om an order of the Workers’

Compensation Appeal Board (WCAB) affirming a Workers’ Compensation Judge’s2

decision to deny Claimant ’s petition to reinstate compe n sation benefits (r einstatement

petition ) and to deny Employer’s petition s to review compensat ion benefits ( r eview

petition) a n d to terminate benefits (termination petition). 1 We affirm.

Claimant worked for Employer as a school bus driver. ( WCJ’s Findings

of Fact, No. 7. ) On April 21, 2011, Claimant felt a pop in his shoulder when he

turned the steering wheel on the bus. ( Id. ) Employer issued a notice of workers ’

compensation denial

, indicating that although Claimant suffered a right shoulder

st rain on April 12, 2011, Claimant was not disabled as a result of the injury. ( Id. , No.

1.) On July 6, 2011, Employer issued a temporary notice of compensation payable

(NCP) accepting that Claimant suffered a “right shoulder rotator cuff tear ” on April

12 , 2011. ( Id. , No. 2.) Employer suspended Claimant’s benefits on January 3, 2012.

( Id. )

On May 28, 2013, Claimant filed a claim petition alleging that on

February 13, 2013, he tore his right rotator cuff when he forcefully turned the school

bus steerin g wheel. ( Id. , No. 3.) Claimant subsequently amended the injury date to

January 30, 2013. ( Id. ) Claimant also filed a penalty petition alleging that Employer

violated the Workers Compensation Act 2 ( Act ) by failing to issue required

documents. ( Id. )

1 The WCJ also denied C laimant’s claim and penalty petitions

. Claimant did not appeal

those denials.

2 Act of June 2, 1915, P.L. 736, as amended , 77 P.S. §§1

- 1041.4, 2501

- 2708.3

On September 9, 2013, Claimant filed a reinstatement petition alleging a

worsening of his April 12, 2011, work injury , and seeking reinstatement of indemnity

benefits as of January 30, 2013. ( Id ., No. 5.) Employer filed an answer denying the

allegations. ( Id. )

On October 31, 2013, Employer filed a review petition, alleging that as

of July 6, 2011, the NCP contained an incorrect injury description. ( Id. , No. 6.)

Employer also filed a termination petition, alleging that Clai mant had fully rec overed

from his April 12, 2011, injury as of April 26, 2013. ( Id. )

At the WCJ’s hearing

, Claimant testified that on January 30, 2013, he

was driving the school bus and

, as he was turning left, he felt pain in his upper right

shoulder. ( Id. , No. 8.) Cla imant testified that after his shift he reported his injury to

Dora LaBarre, Claimant’s supervisor and Employer’s bus dispatcher. ( Id. )

Claimant also presented the testimony of Gregory Meni o , M.D., who is

board certified in orthopedics and has treated C laimant since 1999 for a variety of

orthopedic conditions

. ( Id. , No. 11.) Dr. Menio saw Claimant on May 26, 2011, for

his April 12, 2011, injury. ( Id. ) A magnetic resolution imaging (MRI) revealed a

rotator cuff tear. ( Id. ) Dr. Menio performed surgery on July 20, 2011, to repair the

tear. ( Id. , No. 12. ) During the surgery, Dr. Menio found that Claimant’s labrum was

torn below the biceps tendon and there was a full thickness rotator cuff tear. ( Id. ) Dr.

Menio acknowledged that b y December 20 11, Claimant had full range of motion and,

on January 3, 2012, Dr. Menio released Claimant to full duty

. ( Id. , No. 13.)4

Claimant saw Dr. Menio again on February 8, 2013, where Claimant

complained of right shoulder pain with overhead activity. ( Id. , N o. 14.) Dr. Menio

diagnosed Claimant with shoulder pain, arthritis, and a possible recurrent rotator cuff

tear. ( Id. ) According to Dr. Menio, Claimant did not mention a January 30, 2013,

work injury

. ( Id. )

A subsequent MRI confirmed that Claimant had a recurrent rotator cuff

tear. ( Id ., No. 15.) Dr . Menio opined that Claimant’s recurrent tear was either

directly or indirectly related to h is April 12, 2011, injury . ( Id .) Dr. Menio referred

Claimant to a surgeon for a hemiarthroplasty , the replac ement of the ball and socket

with an implant, which surgery Claimant underwent on August 20, 2013. ( Id. , No.

16.)

LaBarre testified that Claimant did not report a work

- related injury to

her on or after January 30, 2013. ( Id. , No. 8.) LaBarre spec ifically stated that

Claimant did not report a sharp pain in his arm after his shift on January 30, 2013.

( Id. ) On that day

, Claimant was on a bus trip and did not return until 8 :00 p.m.

, and

LaBarre had already left for the day. ( Id. ) LaBarre testifie d that Claimant did not

complete or request an incident investigation report. ( Id. ) Claimant never

complained to LaBarre about any problems performing his job and did not miss any

work after January 30, 2013

. ( Id., No. 9 .)

Employer also presented the testimony of Richard Schmidt, M.D., a

board certified orthopedic surgeon, who examined Claimant on April 26, 2013. ( Id.

,

No. 17.) Dr. Schmidt opined that Claimant suffered a transient type of injury on5

April 12, 2011

, and that Claimant had fully recovered as of April 26, 2013. ( Id. , No.

21.) Dr. Schmidt opined that Claimant did not suffer a torn rotator cuff on April 12,

2011, and surgery was not necessary. ( Id. )

The WCJ credited Claimant regarding his complaints of pain a nd further

credited the testimony of LaBarre that Claimant did not provide her notice of a new

injury in 2013. ( Id. , Nos. 22, 23.) The WCJ also credited the testimony of Dr. Menio

that Claimant sustained a work injury on April 12, 2011, in the form of a right rotator

cuff tear, which necessitated surgery , and a recurrent rotator cuff tear in 2013. ( Id.

,

No. 24.)

Based on his credibility determinations , the WCJ concluded that

Claimant failed to meet his burden of proving that he sustained a new work

- rel ated

injury on January 30, 2013, and therefore, denied Claimant’s claim petition. The

WCJ also determined that Claimant was not entitled to a reinstatement of benefits as

of January 30, 2013. The evidence established that Claimant continued to work until

the summer of 2013, noting that Claimant does not work for Employer in the

summer. Further , claimant was not entitled to a reinstatement following the August

20, 2013, surgery, because there was no evide nce that Claimant missed any tim e from

work. The WCJ also denied and dismissed Claimant’s penal t y petition. Finally,

based upon his credibility determinations , the WCJ denied and dismissed Employer’s

review and termination petitions

. Claimant appealed the denial of the reinstatement6

petition to the WCA B and Employer appealed the denial of its review and

termination petition s. The WCAB affirmed and this appeal followed. 3

Claimant initially argues that the WCJ erred in denying his reinstatement

petition. A claimant seeking reinstatement of benefits be ars the burden of proving

that his earning power is once again adversely affected by his work

- related disability

and that the disability that gave rise to the original claim continues. Buffor d v.

Workers’ Compensation Appeal Board ( N orth American Telecom) , 2 A.3d 548, 552

(Pa. 2010).

Here, the WCJ correctly concluded that Claimant failed to meet his

burden to prove that his earning power was adversely affected as of January 30, 2013,

by the April 12, 2011, work injury. Specifically, as of January 30, 2013, Claimant

continued to perform his job without restrictions, accommodation , or loss of earnings.

Claimant continued to perform his duties until the end of the school year in June

2013. Claimant does not work in the summer months. Thus, Claimant failed to

prove a loss of earning power

.

Claimant also argues that in denying his reinstatement petition

, the WCJ

erred in failing to address his November 4, 2013, testimony. Specifically , Claimant

testified that he could not work due to the August 20, 2013, surgery on his right

shoulder, which was performed by Dr. Lazarus. Citing Latta v. Workers’

3 Our review is limited to determining whether constitutional rights were violated, whether

the adju dication is in accordance with the law, and whether necessary findings of facts are

supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.7

Compensation Appeal Board (Latrobe Die Casting Company) , 642 A.2d 1083 (Pa.

1994), Claimant maintains that his testimony alone was sufficient to establish

disability.

In Latta , the claimant testified that he was still experiencing the effects

of a 1977 work injury during March 1983 to June 1987, for which he sought a

reinstatement of benefits. The Pennsylvania Supreme Court stated that the c laimant’s

testimony alone , that he continued to suffer the effects of his original work injury, if

believed, was sufficient to support a reinstatement

.

Here, unlike Latta, as discussed by th e WCAB, Claimant did not testify

that the effects of his origi nal injury continued. Rather, Claimant testified that he had

surgery on August 20, 2013, and that he could not work because of the surgery

. The

WCJ did not find that the August 20, 2013, surgery was related to the original work

injury. Thus, Claimant di d not meet his burden of proving that his earning power is

adversely affected by the same disability for which Claimant initially received

benefits.

Finally, Claimant argues that the WCAB erred in failing to address the

issue of whether the WCJ failed to address Claimant’s November 4, 2013, testimony.

The WCAB, however

, specifically addressed this issue in its opinion (WCAB Op. at

9

- 10). The WCAB stated that “[a] WCJ is not required to make findings of fact on all

the evidence presented, but only on s uch matters as necessary to resolve all essential

issues so that the [WCAB] has an opportunity to exercise meaningful review.

Pistella v. W[orkers ’

] C[ompensation] A[ppeal] B[oard] (Samson Buick Body Shop)

,8

633 A.2d 230 (Pa. Cmwlth. 1993).” (WCAB Op. at 9.) Further, the WCAB noted

that Claimant did not submit any evidence that his August 2013 injury was related to

his 2011 work injury.

We next address Employer’s contention that the WCJ erred in denying

Employer’s petition to review. Section 413(a) of the Act states that a WCJ may, at

any time, modify an NCP if it is proven that the NCP was in any material respect

incorrect . 77 P.S. § 771. An employer can challenge an NCP based on a material

mistake where the claimant was not forthcoming with information. Se e Phillips v.

Workmen’s Compensation Appeal Board (Edgar Construction Company) , 545 A.2d

869, 872 (Pa. 1988) (willful concealment of relevant medical evidence resulted in

voiding of compensation agreement).

Here , Employer argues that Clai mant provided an inaccurate and

incomplete medical history to Dr. Menio and that because of this fa ulty medical

history, Dr. Menio’s opinion regarding causation is incompetent. Thus, Employer

argues that the injury on the July 6, 2011, NCP, a right r otato r cuff tear , which was

based on Dr. Menio’s testimony, constitutes a material mistake of fact. We disagree.

The WCJ determines the weight and credibility of the evidence and may

accept or reject the testimony of any witness. Lombardo v. Workers’ Com pensation

Appeal Board (Topps Company, Inc.) , 698 A.2d 1378, 1381 (Pa. Cmwlth. 1997).

Also, the failure of a medical witness to review all of a claimant’s medical records

goes to the weight of the expert’s testimony, not its competency. Huddy v. Workers’9

Compensation Appeal Board (U.S. Air) , 905 A.2d 589, 593 n.9 (Pa. Cmwlth. 2006)

( en banc ).

Finally, Employer argues that the WCJ erred in denying its petition to

terminate benefits. Termination is proper where the medical expert testifies that the

claimant is fully recovered, can return to work without restriction, and there are no

objective medical findings that either substantiate the claims of pain or connect them

to the work injur y. See Udvari v. Workers C ompensation Appeal Board (USAir) , 705

A.2d 1290, 1293 (Pa. 1997).

Here, Employer argues that Dr. Schmidt testified that Claimant fully

recovered from his April 12, 2011, injury as of April 26, 2013

, and that Claimant ’s

current condition is unrelated to the April 12, 2011

, injury . Dr. Schmidt further

opined that Claimant does not require any further medical treatment and can work

without restriction.

The WCJ, however , did not credit Dr. Schmidt’s testimony. The WCJ is

the ultimate determiner of credibility. Universal Cyclops Steel Corporation v.

Workers’ Compensation Appeal Board ( Krawczynski) , 305 A.2d 757 (Pa. Cmwlth.

1973).

Accordingly, we affirm.

__________ _________________________ ROCHELLE S. FRIEDMAN, Senior JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Todd Bartee, :

: No. 2019 C.D. 2015

Petitioner :

:

v. :

:

Workers’ Compensation Appeal : Board (Pocono Mountain School : District), :

: Respondent :

Pocono Mountain School District :

and Inservco Insurance Services, : No. 2087 C.D. 201 5

:

Petitioners :

:

v. :

:

Workers’ Compensation Appeal : Board (Bartee), :

: Respondent :

O R D E R

AND NOW, this 6 th day of July , 201 6

, we hereby affirm the September

18, 2015

, order of the Workers’ Compensation Appeal Board.

___________________________________ ROCHELLE S. FRIEDMAN, Senior Judge