IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Benjamin D. Wilson, : : No. 1429 C.D. 2015 Petitioner : Submitted: January 15, 2016

:
v. :

: Workers’ Compensation Appeal : Board (OCI, Inc.), :
: Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ANNE E. COVEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN FILED: February 24, 2016

Benjamin D. Wilson (Claimant) petitions for review
, pro se , of the June 11, 2015, order of the Workers’ Compensation Appeal Board (WCA B) affirming the decision of a workers’ compensation judge (WCJ) to award Claimant b enefits for t he period from August 1, 2013, to October 1, 2013

. 1 We affirm.

Claimant worked for Graft Oil of OCI, Inc. (Employer) as a tracto r

trailer driver. ( WCJ’s Findings of Fact, Nos. 1, 7.) On January 23, 2012, Claimant

filed a claim petition alleging an August 9, 2011, work

- related injury. ( Id. , No. 7.) In an April 12, 2013, decision, the WCJ concluded that Claimant sustained a work

-

1 The WCAB also affirmed the WCJ’s decision to grant Claimant’s penalty petition.2

related aggravation of his pre existing left hip degenerative osteoarthritis . ( Id. ) The aggravation , caused by use of the tractor

- trailer’s clutch, resulted in pain in Claimant’s left hip and leg, which necessitate d chiropractic treatment performed by
Michael A. Roche, D.C. ( Id. ) The aggravation , however , did not accelerate or alter

the lef t hip degeneration

. ( Id

. , Nos. 7

- 8.) Claimant continued to work for Employer

w ithout restrictions
, and t he WCJ ordered Employer to pay Claimant’s medical

expenses. ( Id. , Nos. 8, 9b.)

On May 30, 2013, Claimant filed a penalty petition
, alleging that Employer failed to pay Claimant’s medical expense s in violation of the WCJ’s April
12, 2013, order. ( Id. , No. 1.)

On August 5, 2013, Claimant filed a claim petition alleging tem p orary , total disability as of July 31, 2013, resulting from the August 9, 2011
, work

- related injury. ( Id. , No. 3.)

On Augu st 10 , 2013, Claiman t filed a nother claim petition alleging a July 23, 2013, work

- related injury
, wherein Claimant caught his foot in a hose and

twisted his body
, result ing in severe pain down his left leg and hip. ( Id ., Nos. 5, 9d.) Claimant alleged t ot al disability commencing Augus t 1, 2013
, and continuing. ( Id
., No. 5.)

At the WCJ’s hearing

, Claimant testified that after his August 9, 2011, injur y , he continued to work as a tractor

- trailer driver without restriction. ( Id ., No

. 9b.) Since his August 9, 201 1, injury
, Claimant has continued to treat with Dr.3

Roche

. Claimant testified that while at work on July 23, 2013, his foot got caught in a hose and he twisted his hip. ( Id. , No. 9d.) Although the pain in his hip worse ned
, he continued to w ork. ( Id.
, No. 9f.) Claimant acknowledged that he informed his

boss that on the previous day, July 22, 2013, he was using a weed whacker on his
property that aggravated his leg pain. ( Id., No. 9m.) Claimant testified that Dr. Roche imposed work restric tions on him on July 24, 2013

. ( Id. , No. 9g.) Claimant worked on July 29, 2013, performing his regular duties . ( Id. , No. 9h.) On July 31
, 2013, Dr. Roche removed Claimant from work. ( Id. )

In his testimony , Dr. Roche stated that he started treating Claimant for his degenerative hip condition and leg pain in November 2011 and co ntinues to treat

Claimant two or three times per week. ( Id., No. 12.) Dr. Roche diagnosed a subluxation of Claimant’s left hip and sacrum with radiation of pain into his low er extremity. ( Id. ) Dr. Roche saw Claimant on July 24, 2013, and noticed an increase in Claimant’s symptomatology for approximately two weeks . ( Id. ) Dr. Roche stated

tha t the treatment he provides to C laimant is not a cure for his underlying degenerati ve hip c ondition ; it merely alleviates Claimant’s discomfort for a short

time. ( Id. )

Em

p loyer presented the deposition testimony of A ri E. P ressman, M.D., who examined Claimant on October 2, 2013. ( Id. , No. 13.) Dr. Pressman reviewed

Claimant’s med ical records, took Claimant’s medical history

, and reviewed

Claimant’s x

- rays. ( Id. ) Dr. Pressman concluded that Claimant has severe l ate

- stage arthritis in both hips, which would be consistent with osteoarthritis . ( Id. ) The x

- rays did not show evidence of any previous trauma or healing. ( Id. )4

Dr. Pressman observed that Claimant had a number of exacerbations of pain f r om using a weed whack er , tripping over a hose
, and using a clutch. ( Id. )

However , none of these incidents had any long

- term impact on Claimant’s underlying degenerative disease. ( Id. ) Claimant has severe late

- stage arthritis and will have symptomatology whether he is at work or at home engaged in simple activities such as walking. ( Id. )

The WCJ concluded that Employer failed to pay Claimant’s work

related medical expenses and granted the penalty petition

. (WCJ’s Conclusion s of
Law, No. 4.) As to the alleged July 23, 2013
, work

- related i njury, the WCJ

concluded that Claimant did suffer a work

- re lat ed exacerbation of pain in his left hip, which precluded Claimant f r om performing his pre

- i njury job until October 1, 2013,

when Claimant returned to his baseline. ( Id. , No. 5; WCJ’s Findings of Fact, No. 15.)

The WCJ noted that both doctors agreed that Claimant h a d returned to his baseline

. (WCJ’s Findings of Fact, No. 15.) The WCJ terminated Claimant’s benefits for both the August 9, 2011
, 2 and July 23, 2013, injuries on October 1, 2013. (WCJ’s

Conclusions of L aw, No. 5.)

Claimant appealed to the WCAB, which affirmed. The WCAB

concluded that substantial evidence supported the WCJ’s finding that Claimant had fully recovered f

r om the exacerbation of his pre existing degenerative arthritis and

2 The WCJ concluded that Claimant had already established a work

- related injury on August 9, 2011, and
, consequently
, the claim petition filed in connection with that injury was moot.5

that Claimant’s pr esent complaints of p ain are attributable to his pre exis ting degenerative arthritis. (WCAB’s Op. at 5.) T his appeal followed. 3

On appeal, Claima nt argues that Findings of Fact Numbers 7

- 13, 15
, and 19, which summarize the WCJ’s previous findings

, Claimant’s testimony

, and the testimony of the medical witnesses
, “need to be looked at.” (Cl .’s Br. at 4.) To the

extent that Claimant is suggesting that the findings are not supported by substantial

evidence , o ur review of the record indicates that sub stantial evidence supports the WCJ’s findings. 4 To the extent that Claimant is requesting that we re

- weigh the evidence, this court may not do so. See Riggle v. Workers’ Compensation Appeal
Board ( Precision Marshall Steel Company) , 890 A.2d 50, 57 n

. 11 (Pa. Cmwlth.
2006) ( stating that the WCJ’s determinations as to evidentiary weight and witness credibility are not subject to appellate review ).

Claimant next argues that the WCJ erred in terminating his benefits as o f October 2, 2013, because Employer d id not file a termination petition

. We observe that in a claim petition, the claimant has the burden of proving all necessary elements, including the duration of the disability. Pennsylvania Uninsured Employers Guaranty Fund v. Workers’ Compensation Appeal Board (Bonner and Fitzgerald)
, 85 A.3d 1109 , 111 4

- 15 (Pa. Cmwlth. 2014). Here, t he WCJ determined that on July

3 Our review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, and whether necessary findings of fact are suppor ted by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.

4 “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Williams v. Workers’ Compensation Appea l Board (USX Corporation

- Fairless Works) , 862 A.2d 137, 143 n.6 (Pa. Cmwlth. 2004).6

23, 2013, Claimant suffered a work

- related aggravation of his pre existing degenerative hip condition , which resulted in increased pain

. However, the WCJ further credited the testimony of Dr. Pressman that Claimant had recovered from the

work

- related aggravation as of the date of his examination on October 1, 2013. Accordingly, the WCJ did not err in terminating Claimant’ s benefits as of October 2,

2013.

Claimant next argues that t he WCJ erred in crediting the testimony of

Dr. Pressman because he examined Claimant on only one occasion

. Cl aimant

maintains that Dr. Roche , wh o treated Claimant on numerous occasions
, was more qualified to render an opinion as to Claimant’s leg and hip pain

. We observe
, however, that i t is within the province of the WCJ to determine witness credibility

. Lombardo v. Workers’ Compensation Appeal Board (Topps Company) , 698 A.2d 1378, 1381 (Pa. Cmwlth. 1997). Therefore, we find no error.

Lastly, Claimant argues that the WCJ erred in accept ing Dr. Pressman’s testimony because Dr. Pressman did not believe that Claimant suffered a work

- related injury, which contradicts the WCJ’s previous decision

. We note that Dr. Pressman did acknowledge that using a clutch would make Claimant’s arthritic hip sore and exacerbate his pain. (N.T., 1/8/14, at 13

- 14.) Dr. Pressman opined, however, that using the clutch did not cause Claimant’s arthritis to progress , nor did it have a n y long

- term impact on Claimant’s degenerative condition . ( Id. at 16

- 17.) This is

consistent with the WCJ’ s previous finding that using the clutch caused pain but did not accelerate or materially alter the degeneration of Claimant’s left hip.7

Accordingly, we affirm.

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

Benjamin D. Wilson, : : No. 1429 C.D. 2015 Petitioner :

:
v. :

: Workers’ Compensation Appeal : Board (OCI, Inc.), :
: Respondent :

O R D E R

AND NOW, this 24 th day of February , 201 6
, we hereby affirm the June 11, 2015, order of the Workers’ Compensation Appeal Board.

___________________________________ ROCHELLE S. FRIEDMAN, Senior Judge