IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Larry McKelvey

, :

Petitioner :

:

v. :

: Workers’ Compensation Appeal : Board (Roxcoal, Inc.), : No. 1108 C.D. 2019

Respondent : Submitt ed: November 22 , 2019

BEFORE: HONORABLE MARY HAN NAH 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 t he
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 Claim ant 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 err ed 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 Claim ant 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 mi ner until December 13, 2012 , when the mine in which he worked was closed

and he was lai d 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 i njury. 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 bear s 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. F urther, 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 h a s 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

- 27 10

.3 The term ‘disability’ is synonymous with an employee’s loss of earning power

.

Amandeo v. W

orkers’ Comp. Appeal Bd. (Conagra Foods) , 37 A.3d 7 2, 75 n.4 (Pa.

Cmw lth . 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, 6 among 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.

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

Sun H ome 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 occupation al disease c ould
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. Zlupk o) 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. W

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

2009)

. Further , t he 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).

H ere, Claimant testified relative to disability that his breathing has

worse ned 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 law n. R.R. at 93A. Although Claimant acknowledges that he is not
being treat ed for any breathing issues, 7 and 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 Co al Mine Worker s ’ 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 c ertainty

, 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 de clared :

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 devel op 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 impa irment; 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

w ork. See R.R. at 194A

- 195A.

Employer ’s medical expert, Dr. Fino

, testified that he cond ucted 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 re spiratory 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 condition6

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

- 2 68A. Dr.

Fino articulated: “The chances of [Claimant’s condition] progressing with or without
further exposure, in [his] opinion, is negligible.” R.R. at 268A.

T he WCJ concluded

, b ased upon the evidence

, that Claimant failed to
prove his work inju ry 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 th e 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 pe rsuasive.

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 disable d 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 contra s t, 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 hav e 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 pneumo coniosis 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 consid ered 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, t he WCJ “ d [id] not find credible []

C laimant ’ 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. T he Board agreed with the

WCJ

. Claimant cites Lash v. Workmen’s Compensation Appeal Board
(General Battery Cor

p.) , 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.2d8

782 (Pa. Cmwlth. 1989)

, to support his position t hat 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, n either 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]n less made arbitrarily or capriciously, a WCJ’s
credibility determinations will be upheld on appeal

. ” 9 P a. Uninsured Emp ’ rs Guar.

Fund v. W

orkers’ Comp. Appeal Bd. ( Lyle) , 91 A.3d 297, 303 (Pa. Cmw lth . 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 Hol dings

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 disrega rd, 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, t he WCJ summarize d all of the testimony and proper ly explain ed

h is 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 r ecord, this Court concludes that the WCJ’s decision is supported by

substantial evidence

. Accordingly, the Board did not err by affirm ing the WCJ’s

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

.

___________________________ ANNE E. COVEY, JudgeIN 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 30 th day of January , 20 20

, the Workers’ Compensation
Appeal Board’s July 24, 2019 order is affirmed

.

___________________________ ANNE E. COVEY, Judge