IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tina Burns

, : Petitioner :

:

v. :

: Workers’ Compensation Appeal : Board (Commonwealth of : Pennsylvania/Department of : Public Welfare), : No. 172 C.D. 201 4 Respondent : Submit ted: Ju ly 11 , 2014

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge

HONORABLE ROBERT SIMPSON , Judge HONORABLE ANNE E. COVEY , Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE COVEY FILED: August 12, 2014

Tina Burns (Claimant) petitio ns this Court for review of the Workers’
Compensation (WC) Appeal Board’s (Board) January 7, 2014 order affirming the
Workers’ Compensation Judge’s (WCJ) order denying Claimant’s petition for review
of compensation benefits ( review p etition ) . Claimant pre sents two issues for this
Court’s review: (1) whether the WCJ’s decision was based on incompetent and
legally insufficient medical testimony; and (2) whether Claimant sustained a work

related cervical disc herniation requiring surgery which resulted in lef t cervical
scarring. After review, we affirm.

On April 15, 2008, Claimant suffered a work

- related injury while
working for the Commonwealth of Pennsylvania, Department of Public Welfare
(Employer)

, as a result of holding a patient’s wheelchair steady thr oughout a 45

-
minute van ride from Reading Hospital to Hamburg Center

. Employer issued a2

Notice of Compensation Payable (NCP) and accepted the injury as a work

- related

cervical s t rain. On June 9, 2008, Claimant un d erwent cervical fusion surgery to C5

- 6

an d C6

- 7. On August 8, 2008, Claimant’s WC benefits were suspended.

On October 20, 2009, Claimant filed a review petition to amend her
work injury to include disc herniations at C5

- 6 and C6

- 7 , and cervical scarring. A
WCJ held a hearing and on September 24, 2010

, the WCJ denied Claimant’s review
petition because Claimant’s medical evidence was insufficient to support her burden
of proof. Claimant appealed to the Board. T he Board remanded the matter to the

WCJ because the WCJ had accepted conflicting me dical testimony

, finding both

doctors (Stephen P. Banco, M.D. (Dr. Banco) and Elisabeth M. Post, M.D. (Dr. Post))
credible without resolving the conflict.

Upon remand, the WCJ explained that he found both doctors credible in
his September 24, 2010 decis ion “ because both doctors reached the same diagnosis .”

WCJ Dec.

, July 11, 2012 (WCJ Dec.) at 2. The only difference in their testimony

was that Dr. Banco opined that the herniations resulting in the surgery that caused the
cervical scarring were caused b y Claimant’s work injury, although he did n o t rule out

that a prior car accident could have contributed to it

. In contrast, Dr. Post stated that
the cervical pathology was degenerative in nature and pre

- dated Claimant’s work
injury. Dr. Post further test ified that h o lding a wheelchair could not cause herniations
in Claimant’s cervical spine. In his remand decision, the WCJ specified that he found

“D r . Post’s testimony and opinions more credible and persuasive than Dr. Banco’s [,] ”
and again denied Claiman t’s review petition. WCJ D ec. at 3. Claimant appealed to

the Board , and t he Board affirmed the WCJ’s decision. Claimant appealed to this

Court. 1

1 “Our review is limited to determining whether the WCJ’s findings of fact were supported by substantial evidence, whether an error of law was committed or whether constitutional rights were violated.” Dep’t of Transp. v. Workers’ Comp. Appeal Bd. (Clippinger) , 38 A.3d 1037, 1042 n.3 (Pa. Cmwlth. 2011).3 Claimant first argues that Dr. Post’s testimony was incompetent and
legally insufficient to support the W CJ’s decision to deny Claimant’s review petition

because Dr. Post failed to acknowledge Claimant’s work

- related neck injury. We
disagree.
“A medical expert’ s opinion is incompetent if it is based on an
assumption that is contrary to the established fac ts of record. ” Harrison v. Workers’
Comp. Appeal Bd. (Auto Truck Transp

. Corp.) , 78 A.3d 699 , 70 2 n.4 (Pa.

Cmwlth. 2013)

. “ Substantial evidence is such relevant evidence a reasonable mind
might accept as adequate to support a conclusion. In performing a substantial

evidence analysis, we must view the evidence, and every reasonable inference
deducible from the evidence, in a light most favorable to the prevailing party.” W awa v. Workers’ Comp. Appeal Bd. (Seltzer) , 951 A.2d 405, 407

- 08 n.4 (Pa.

Cmwlth. 2 008).

In the instant case , the NCP specified Claimant’s accepted work injury
as: “Body Part(s) affected CERVICAL[,] Type of injury STRAIN”. NCP at 1;
Reproduced Record (R.R.) at 56a. During Dr. Post’s deposition, when asked about
the relationship betw een Claimant’s work injury and her cervical fusion surgery, Dr.

Post testified:

I felt that she had suffered a brachial plexus stretch injury [ 2 ] as a result of the April 15th, 20 0 8 work accident. And I did not think that the surgery that she had was rela ted to that accident, but rather was related to her underlying and pre

existing degenerative cervical disease.

Dr. Post Notes of Deposition Testimony , March 22, 2010 (Dr. Post Dep.) at 25; R.R.

at 197a. When asked how a brachial plexus stretch compares to a brachial plexus

2 The “brachial plexus is a collection of nerves” that “exit the cervical spine[;]” they go “from the neck down into the arm[.]” Dr. Post Notes of Deposition Testimony, March 22, 2010 at 25; R.R. at 197a.4

strain, Dr. Post responded: “I think they’re similar. The language is a bit imprecise,
but I think he’s describing the same thing I am.” Dr. Post D ep. a t 26

- 27; R.R. at

198a

- 199a. Viewing Dr. Post’s testimony in the light most favorab le to Employer, as
we must, substantial evidence supports the conclusion that Dr. Post acknowledged

Claimant’s work

- related neck injury. Thus, contrary to Claimant’s position, the
WCJ’s decision was based on competent and legally sufficient medical testim ony.

Claimant next asserts that she sustained work

- related cervical disc

herniation s requiring surgery which resulted in left cervical scarring. Claimant
alleges that she is entitled to disfigurement benefits. We disagree.

A claimant who is seeking be nefits for disfigurement under Section 306(c)(22) of the [WC] Act [ 3 ] must prove that the injury occurred in the course of his employment and that the disfigurement is 1) serious and permanent, 2) of such a character as to produce an unsightly appearance, a nd 3) not

u sually incident to the claimant’ s employment.

Ellwood Quality Steel Co. v. Workers’ Comp. Appeal Bd. (Harper) , 766 A.2d 359

, 360 (Pa. Cmwlth. 2001) (emphasis added). T he NCP describe d Claimant’s injury as

a cervical strain, not cervical disc h erniations requiring surgery.

“ [U] nder Section 413(a) of the [WC] Act

. . . , 77 P.S. § 771

, a WCJ is
empowered to amend the description of the claimant’ s work injury if it is proved that
the NCP is materially incorrect. ” City of Phila. v. Workers’ Com p. Appeal Bd.

(Smith) , 946 A.2d 130, 136

- 37 (Pa. Cmwlth. 2008)

. “[T]he ‘ NCP is materially
incorrect if the accepted injury fails to include all of the injuries that the claimant

suffered in the work incident. ’” Id. at 137 (quoting Cinram Mfg

. , Inc. v. Wo rkers ’

Comp

. Appeal Bd

. (Hill), 932 A.2d 346 , 349 (Pa. Cmwlth. 2007 )

, aff’d

, 975 A.2d

577 (Pa. 2009) )

. “ In addition, the NCP can be amended if the claimant files a review
petition and proves that another injury subsequently arose as a consequence of the

3 Act of June 2, 1915, P.L. 736, as amended

, 77 P.S. § 513(22).5

original injury. The party seeking to amend the NCP has the burden of proving that
the NCP is materially incorrect. ” Harrison , 78 A.3d at 703 (citation omitted)

. “[W] hen there is no obvious causal connection between the injury and the alleged

work

- relat ed cause , unequivocal medical evidence is necessary to establish that

connection

. ” Wagner v. Workers’ Comp. Appeal Bd. (Ty Const. Co., Inc.) , 83 A.3d

1095 , 1098 (Pa. Cmwlth. 2014)

. “ Medical testimony is equivocal if it is less than
positive or merely bas ed upon possibilities

. In determining whether the medical
testimony is equivocal , we must review the medical testimony as a whole. ” Potere v.
Workers’ Comp. Appeal Bd. (Kemcorp) , 21 A.3d 684 , 690 (Pa. Cmwlth. 2011)

(citation omitted)

.

Here, although C laimant presented Dr. Banco’s testimony in support of
her review petition, the WCJ found Employer’s expert Dr. Post more credible and
persuasive than Dr. Banco. Moreover, the WCJ adequately explained the basis for
his credibility determination.

[I ] n a wor kers ’ compensation proceeding, the WCJ is the ultimate finder of fact

. As the fact finder , the WCJ is entitled to accept or reject the testimony of any witness

, including a medical witness , in whole or in part

. Questions of credibility and the resolution of conflicting testimony are within the exclusive province of the fact finder

. Thus, determinations as to witness credibility and evidentiary weight are within the exclusive province of the WCJ and

are not subject to appellate review.

Joy Global, Inc. v. Workers’ Comp. Appeal Bd. (Hogue)

, 876 A.2d 1098 , 1103 (Pa.

Cmwlth. 2005) (citations omitted) . Dr. Post, when asked if the work accident that
caused the injury could have “resulted in herniated discs” unequivocally testified:

“ N o.” Dr. Post Dep. at 28; R.R. at 20a. When questioned regarding whether a brachial plexus stretch requires surgery, Dr. Post re spond ed: “Brachial plexus
injuries, classically, are non

- operative, and they generally either get better on their6

own or they sometimes don’t. But they are not usually helped in surgery.” Dr. Post
Dep. at 26; R.R. at 198a.

As the substantial evidence supports the WCJ’s conclusion that Claimant
did not meet her burden of proving that she suffered work

- related cervical disc
herniations, nor that her surge ry or resulting cervical scarring were work

- related,
Claimant was not entitled to disfigurement benefits. Accordingly, the Board properly
upheld the WCJ’s determination

.

For all of the above reasons, the Board’s order is affirmed.

_____________ ______________ ANNE E. COVEY, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tina Burns, : Petitioner :

:

v. :

: Workers’ Compensation Appeal : Board (Commonwealth of : Pennsylvania/Department of : Public Welfare), : No. 172 C.D. 2014 Respondent :

O R D E R

AND NOW, this 12 th day of August , 201 4

, the Workers’ Compensation
Appeal Board’s January 7, 2014 order is affirmed.

___________________________ ANNE E. COVEY , Judge