IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Larry McKelvey, :

Petitioner :

:

v. :

:

Workers’ Compensation Appeal :

Board (Roxcoal, Inc.), : No. 1108 C.D. 2019

Respondent : Submitted: November 22, 2019

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY 

JUDGE COVEY FILED: January 30, 2020

Larry McKelvey (Claimant) petitions this Court for review of the 

Workers’ Compensation (WC) Appeal Board’s (Board) July 24, 2019 order affirming 

the portion of the Workers’ Compensation Judge’s (WCJ) decision denying 

Claimant’s claim petition (Claim Petition). The issue before this Court is whether the 

WCJ erred by concluding that Claimant was not disabled due to his work injury.1 

After review, we affirm.

 

1 Claimant presents three issues in his Statement of the Questions Involved: (1) whether the 

WCJ erred by holding that Claimant was not disabled and could physically return to work; (2) 

whether the WCJ erred by holding that competent medical evidence did not establish that Claimant 

was disabled due to his work injury; and (3) whether the Board erred by affirming the WCJ’s 

decision which was contrary to prevailing case law that a claimant is disabled where a doctor 

credibly testifies that the claimant should not return to work because of the risk of progression of an 

occupational disease. See Claimant Br. at 8. Since Claimant’s issues relate to whether substantial 

evidence supported the WCJ’s conclusion that Claimant was not disabled due to his work injury, 

they have been combined herein. 
2

Claimant was employed by Roxcoal, Inc. (Employer) for 23 years as a 

coal miner until December 13, 2012, when the mine in which he worked was closed 

and he was laid off.

2

 Claimant’s last duties with Employer required him to work 

underground in dusty conditions. In 2016, Claimant was diagnosed with coal mine 

worker’s pneumoconiosis. On October 3, 2016, Claimant filed the Claim Petition 

seeking full disability from December 13, 2012 and ongoing. See Reproduced 

Record (R.R.) at 48A.3 On October 17, 2016, Employer denied Claimant’s claim.

A WCJ conducted hearings on November 8, 2016 and February 7, April 

11, July 11 and October 10, 2017. On February 21, 2018, the WCJ granted the Claim 

Petition insofar as Claimant proved that he suffered a work-related injury for which 

he is entitled to medical benefits, but denied Claimant indemnity benefits because 

Claimant failed to prove he was disabled as a result of his work injury. Claimant 

appealed to the Board which, on July 24, 2019, affirmed the WCJ’s decision. 

Claimant appealed to this Court.4

Initially, in a claim petition proceeding,

[a]n injured employee seeking to obtain [WC] benefits for a 

work-related injury bears the burden of proving all elements 

necessary to support an award. Pursuant to Section 

301(c)(1) of the [WC] Act [(Act)5], 77 P.S. § 411(1), an 

employee’s injuries are compensable if they (1) arise in the 

course of employment and (2) are causally related thereto. 

Further, an employee must demonstrate that he is 

disabled as a consequence of the work-related injury. 

 

2 Claimant had worked in coal mines for approximately 40 years.

3 Claimant failed to comply with Pennsylvania Rule of Appellate Procedure 2173, which 

requires that reproduced record pages be numbered followed by a small “a.” Accordingly, this 

Court references the documents consistent with the reproduced record’s table of contents.

4

“On review[,] this Court must determine whether constitutional rights were violated, errors 

of law were committed, or necessary findings of fact were supported by substantial competent 

evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d 598, 601 n.6 

(Pa. Cmwlth. 2014). “Substantial evidence has been defined as such relevant evidence as a 

reasonable person might accept as adequate to support a conclusion.” Id.

5 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
3

The term ‘disability’ is synonymous with an employee’s 

loss of earning power.

Amandeo v. Workers’ Comp. Appeal Bd. (Conagra Foods), 37 A.3d 72, 75 n.4 (Pa. 

Cmwlth. 2012) (emphasis added; citations omitted). Section 301(c)(2) of the Act, 77 

P.S. § 411(2), specifies that compensable injuries include occupational diseases as

defined in Section 108 of the Act, 77 P.S. § 27.1,6among which is coal worker’s 

pneumoconiosis. See Section 108(q) of the Act, 77 P.S. § 27.1(q). However, a 

claimant must establish not only that he suffers from an occupational disease arising 

from his employment, but also that he is disabled by it. See Bristol Borough v. 

Workers’ Comp. Appeal Bd. (Burnett), 206 A.3d 585 (Pa. Cmwlth. 2019); see also

Sun Home Health Visiting Nurses v. Workers’ Comp. Appeal Bd. (Noguchi), 815 

A.2d 1156, 1160 (Pa. Cmwlth. 2003). Here, the WCJ concluded that Claimant 

proved the former, but not the latter.

Claimant argues that the Board erred by upholding the WCJ’s 

determination that Claimant was not disabled as a result of his work injury. He 

specifically asserts that the WCJ erred by concluding that credible medical evidence 

established that Claimant could return to work, when his occupational disease could 

progress if he did so. Claimant contends that the WCJ erred by relying on 

pulmonologist Gregory J. Fino, M.D.’s (Dr. Fino) testimony over pulmonologist 

George M. Zlupko, M.D.’s (Dr. Zlupko) testimony in reaching his decision. We 

disagree.

“Unless the causal connection between an injury and disability is 

obvious, unequivocal medical evidence is needed to establish that connection.” 

Reyes v. Workers’ Comp. Appeal Bd. (AMTEC), 967 A.2d 1071, 1077 (Pa. Cmwlth. 

2009). Further, the law is well-established that “[t]he WCJ is the ultimate factfinder 

and has exclusive province over questions of credibility and evidentiary weight.” 

 

6 Added by Section 1 of the Act of October 17, 1972, P.L. 930.
4

Univ. of Pa. v. Workers’ Comp. Appeal Bd. (Hicks), 16 A.3d 1225, 1229 n.8 (Pa. 

Cmwlth. 2011). “The WCJ, therefore, is free to accept or reject, in whole or in part, 

the testimony of any witness, including medical witnesses.” Griffiths v. Workers’ 

Comp. Appeal Bd. (Red Lobster), 760 A.2d 72, 76 (Pa. Cmwlth. 2000). 

Here, Claimant testified relative to disability that his breathing has 

worsened over time, to the point that he sometimes has “a hard time breathing” while 

playing with his grandchildren, carrying groceries up his driveway, washing his car or

mowing his lawn. R.R. at 93A. Although Claimant acknowledges that he is not 

being treated for any breathing issues,7and he “could work in some capacity,” R.R. at 

97A, he does not believe he could do the coal mining job he did before his December 

13, 2012 layoff. See R.R. at 92A, 94A.

Claimant’s medical expert, Dr. Zlupko, related that Claimant was 

examined on August 15, 2016 at UPMC Altoona’s Black Lung Program under the 

auspices of the United States Department of Labor, Workers’ Compensation 

Program, Division of Coal Mine Workers’ Compensation, at his counsel’s request. 

Claimant provided his history and underwent numerous studies and tests, from which 

Dr. Zlupko concluded in his November 8, 2016 report, see R.R. at 161A-162A,

within a reasonable degree of medical certainty, that Claimant had simple coal 

worker’s pneumoconiosis due to his exposure to coal dust at work. 

Dr. Zlupko recalled, based on Claimant’s normal restrictive impairment 

test results, that Claimant did not have any functional pulmonary impairment that 

would preclude Claimant from performing his coal mine job, and Dr. Zlupko further 

acknowledged that some coal workers continue to work without ever developing 

functional impairment. See R.R. at 177A-180A, 189A-190A, 194A. Dr. Zlupko 

nevertheless declared: 

 

7 Claimant explained that he was hospitalized for pneumonia in March 2016, and was given 

an inhaler to use as part of his treatment for that condition. See R.R. at 92A-93A, 99A-100A, 143A.
5

I would not find it appropriate from a medical point of view 

to recommend that he return to a work environment 

exposing him to more of a [sic] coal dust, or any other dust 

in that environment that may cause a disease and just wait 

for him to develop functional impairment.

R.R. at 178A; see also R.R. at 179A, 181A, 195A. He explained: “[T]here is 

evidence that there is some progressive quality to this dust exposure. And so . . . it’s 

possible over time [Claimant] could develop some functional impairment; again 

emphasizing why I wouldn’t return him to that environment.” R.R. at 180A. 

However, Dr. Zlupko could not state within a reasonable degree of medical certainty 

that Claimant would develop a disabling respiratory impairment if he returned to 

work. See R.R. at 194A-195A.

Employer’s medical expert, Dr. Fino, testified that he conducted an 

independent medical examination (IME) of Claimant on January 19, 2017, during 

which Claimant expressed that he has experienced shortness of breath, with some 

cough, mucus and wheezing for approximately 3 years. See R.R. at 218A, 252A. 

Like Dr. Zlupko, Dr. Fino concluded that Claimant had simple coal worker’s

pneumoconiosis but, since Claimant’s impairment test results were normal, Claimant

did not have any respiratory impairment or pulmonary disability that prevented him

from working. See R.R. at 225A, 251A, 254A-258A. However, Dr. Fino declared 

“from a functional standpoint, [Claimant] could return to his last mining job or a job 

requiring similar effort.” R.R. at 225A, 258A-259A. 

Dr. Fino expounded that, based purely on Claimant’s category one (1/0)

pneumoconiosis x-ray reading, he would not recommend a person return to a mine for 

reexposure; however, looking at the total picture – that Claimant’s level is only 1/0 

after nearly 40 years of exposure – Dr. Fino opined within a reasonable degree of 

medical certainty that it was safe for Claimant to return to work because his condition 
6

is not likely to worsen, even with further exposure.8 See R.R. at 263A-268A. Dr. 

Fino articulated: “The chances of [Claimant’s condition] progressing with or without 

further exposure, in [his] opinion, is negligible.” R.R. at 268A. 

The WCJ concluded, based upon the evidence, that Claimant failed to 

prove his work injury resulted in any earnings loss. In reaching his decision, the 

WCJ found: 

Both medical experts have [] consistently testified that from 

a pulmonary standpoint, [] Claimant is not disabled from

returning to his pre-layoff job. Where they differ is on the 

issue of whether [] Claimant should refrain from returning 

to this type of work for fear of further worsening his

condition. After carefully considering the testimony of both 

witnesses, I find Dr. Fino to be more believable and 

credible in his testimony that [] Claimant could safely 

return to his job.

Dr. Fino performed a more thorough examination of []

Claimant than did Dr. Zlupko[,] and based his opinions on 

the thorough testing that showed no impairment. He 

credibly testified that because [] Claimant had no 

impairment after nearly 40 years of exposure, there was 

nothing medically preventing him from returning to the 

mines from a pulmonary standpoint, and no risk that further 

exposure would lead to disability. This opinion is logical, 

credible, and persuasive.

Though Dr. Zlupko testified that [] Claimant should not 

return to the mines for fear that the pneumoconiosis would 

progress, he conceded that he could not state within a

reasonable degree of medical certainty that [] Claimant 

would become disabled if he did return to the mines. 

Instead, he couched his prognosis in terms of ‘possibly’ and 

‘could.’ Such terms are equivocal and not persuasive. His 

opinion is speculative.

 

8

In contrast, Dr. Fino expressed that he would recommend that someone with the same 

result after only 10 years of exposure not return to a dusty environment because he is more 

susceptible to lung impairment than Claimant. See R.R. at 265A-268A.
7

Also, Dr. Zlupko’s prognosis was not based upon any 

empirical testing[,] but rather upon the fact that the x-rays 

showed the mildest state of coal mine worker[’s]

pneumoconiosis and a concern that it could progress with 

further exposure. However, he also testified that he would 

expect anyone who worked in the mines for a length of time 

with significant exposure to develop evidence of coal mine 

worker[’s] pneumoconiosis, even if [he/she] had no

evidence of impairment. Following Dr. Zlupko’s logic, 

since miners with a long history would develop 

pneumoconiosis and they should not have further exposure, 

he essentially is opining that all coal miners with a long 

history of exposure should not return to the mines and 

therefore should be eligible to collect [WC] benefits. Such 

an argument proves too much and is not credible or 

persuasive.

Most importantly, Dr. Zlupko would prohibit [] Claimant 

from returning to the mines based upon the x-ray results 

without considering the other factors that Dr. Fino took into

consideration, namely, that [] Claimant has relatively minor 

evidence of pneumoconiosis after nearly 40 years of 

exposure and has normal (and to some degree above 

normal) findings on pulmonary function studies. His 

opinion is not as persuasive because he does not take the 

whole picture into consideration, unlike Dr. Fino, who

considered the x-ray findings in conjunction with the whole 

picture.

For these reasons, I reject the disability opinion of Dr. 

Zlupko and accept the disability opinion of Dr. Fino.

WCJ Dec. at 5-6; R.R. at 11A-12A. Further, the WCJ “d[id] not find credible [] 

Claimant’s opinion that he cannot return to work . . . , as the same is contrary to the 

credible medical evidence.” WCJ Dec. at 5; R.R. at 11A. The Board agreed with the 

WCJ.

Claimant cites Lash v. Workmen’s Compensation Appeal Board 

(General Battery Corp.), 420 A.2d 1325 (Pa. 1980), Bethenergy Mines, Inc. v. 

Workmen’s Compensation Appeal Board (Kudra), 584 A.2d 1088 (Pa. Cmwlth. 

1990), and Davis v. Workmen’s Compensation Appeal Board (USX Corp.), 567 A.2d 
8

782 (Pa. Cmwlth. 1989), to support his position that his diagnosis alone renders him 

disabled. However, those cases are inapposite because, therein, the WCJ found 

credible medical testimony that continued exposure would cause the employees’

conditions to progress. Such is not the case here.

Moreover, neither the Board nor the Court may reweigh the evidence or 

the WCJ’s credibility determinations. Sell v. Workers’ Comp. Appeal Bd. (LNP 

Eng’g), 771 A.2d 1246 (Pa. 2001). Specifically, “Section 422(a) [of the Act, 77 P.S. 

§ 834,] does not permit a party to challenge or second-guess the WCJ’s reasons for 

credibility determinations. [Thus, u]nless made arbitrarily or capriciously, a WCJ’s 

credibility determinations will be upheld on appeal.”

9

 Pa. Uninsured Emp’rs Guar. 

Fund v. Workers’ Comp. Appeal Bd. (Lyle), 91 A.3d 297, 303 (Pa. Cmwlth. 2014)

(quoting Dorsey v. Workers’ Comp. Appeal Bd. (Crossing Constr. Co.), 893 A.2d 

191, 195 (Pa. Cmwlth. 2006) (citation omitted)). 

Finally, 

‘[i]n performing a substantial evidence analysis, this [C]ourt 

must view the evidence in a light most favorable to the 

party who prevailed before the factfinder.’ ‘Moreover, we 

are to draw all reasonable inferences which are deducible 

from the evidence in support of the factfinder’s decision in 

favor of that prevailing party.’ It does not matter if there is 

evidence in the record supporting findings contrary to those 

made by the WCJ; the pertinent inquiry is whether the 

evidence supports the WCJ’s findings.

3D Trucking Co., Inc. v. Workers’ Comp. Appeal Bd. (Fine & Anthony Holdings 

Int’l), 921 A.2d 1281, 1288 (Pa. Cmwlth. 2007) (citations omitted) (quoting 

 

9 Capricious disregard “occurs only when the fact-finder deliberately ignores relevant, 

competent evidence.” Williams v. Workers’ Comp. Appeal Bd. (USX Corp.-Fairless Works), 862 

A.2d 137, 145 (Pa. Cmwlth. 2004). Capricious disregard, by definition, does not exist where, as 

here, the WCJ expressly considered and rejected the evidence. Williams.
9

Waldameer Park, Inc. v. Workers’ Comp. Appeal Bd. (Morrison), 819 A.2d 164, 168 

(Pa. Cmwlth. 2003)).

Here, the WCJ summarized all of the testimony and properly explained

his credibility determinations. Because this Court may not reweigh the evidence or 

the WCJ’s credibility determinations, and must view the evidence in a light most 

favorable to Employer on the issue of Claimant’s disability, after a thorough review 

of the record, this Court concludes that the WCJ’s decision is supported by 

substantial evidence. Accordingly, the Board did not err by affirming the WCJ’s 

decision.

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

___________________________

ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Larry McKelvey, :

Petitioner :

:

v. :

:

Workers’ Compensation Appeal :

Board (Roxcoal, Inc.), : No. 1108 C.D. 2019

Respondent :

O R D E R

AND NOW, this 30th day of January, 2020, the Workers’ Compensation 

Appeal Board’s July 24, 2019 order is affirmed.

___________________________

ANNE E. COVEY, Judge