IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lackawanna County, :

Petitioner :

:

v. : No. 1084 C.D. 2018

: Submitted: November 21, 2018

Workers’ Compensation :

Appeal Board (Rosky), :

Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE BROBSON FILED: June 4, 2019

Lackawanna County (Employer) petitions for review of an order of the 

Workers’ Compensation Appeal Board (Board), dated July 13, 2018. The Board 

affirmed the decision of Workers’ Compensation Judge Joseph Grady (WCJ Grady), 

granting the reinstatement petition filed by William R. Rosky (Claimant).1 For the 

reasons set forth below, we affirm the Board’s order. 

Claimant worked for Employer as a Deputy Sheriff. On 

January 31, 2013, Claimant sustained a work-related injury to his left shoulder, neck, 

and upper back. By decision and order dated May 26, 2016, Workers’ Compensation 

 

1 WCJ Grady also denied Employer’s termination petition. Employer’s termination 

petition is not relevant to this appeal, and, therefore, we do not address it in this opinion.
2

Judge Howard Spizer (WCJ Spizer) amended Claimant’s injury description to 

include cervical radiculopathy2and terminated Claimant’s workers’ compensation 

benefits with respect to the injury to Claimant’s left shoulder and upper back as of 

October 24, 2014. Thereafter, on September 8, 2016, Claimant filed a reinstatement 

petition, alleging that the work-related injury to his left shoulder had recurred as of 

June 6, 2016. 

Before WCJ Grady, Claimant testified that, on January 31, 2013, he 

was transporting a highly intoxicated female prisoner from Employer’s processing 

center to an ambulance, when the female prisoner started to fall forward.

(R.R. at 87a-88a.) Claimant explained that he was concerned that the female 

prisoner would fall onto her face because her hands were handcuffed to a court belt 

located around her waist, so he “yanked” the court belt back with his left hand, 

causing him to experience a sharp, shock-like pain up his left arm and into his 

shoulder and neck. (Id. at 87a-89a.) Immediately following the work-related 

incident, Claimant experienced “excruciating” pain in his left shoulder joint and 

“running down [his] arm,” as well as tingling and numbness in his hand and fingers. 

(Id. at 93a-94a, 97a-98a.) Claimant has not returned to his regular duties as a Deputy 

Sheriff since January 31, 2013, but he did work light duty for one month in the 

summer of 2013. (Id. at 89a.) 

 

2 There appears to be some discrepancy regarding the nature of Claimant’s amended injury 

description. In his May 26, 2016 decision, WCJ Spizer amended Claimant’s injury description to 

include cervical radiculopathy. (See Reproduced Record (R.R.) at 301a; WCJ Spizer’s Decision 

at 8, Conclusion of Law No. 4.) In WCJ Grady’s August 14, 2017 decision and Claimant’s brief, 

however, WCJ Grady and Claimant indicate that WCJ Spizer amended Claimant’s injury 

description to include a disc herniation at C5-6. (See WCJ Grady’s Decision at 3, Finding of Fact 

No. 3; Claimant’s Br. at 6.) While we have noted this discrepancy for the record, we will not 

address it in any further detail as Claimant’s neck/cervical injury is not the subject of this appeal. 
3

Claimant testified further that he has treated with various doctors for 

the work-related injury to his left shoulder, including Hans Olsen, M.D., who 

performed surgery in February 2014. (Id. at 90a-91a, 100a.) Following the surgery, 

Claimant continued to experience pain in his left shoulder that radiated down his 

arm into his bicep and elbow. (Id. at 94a.) Claimant explained, however, that the 

radiating pain had decreased and his range of motion had improved. 

(Id. at 94a-95a, 104a.) He continued to treat with Dr. Olsen for his left shoulder 

until 2015. (Id. at 100a.) Michael Haak, M.D., the surgeon who performed surgery 

on Claimant’s neck, referred Claimant back to Dr. Olsen in 2016 based on 

Claimant’s complaints of continued left shoulder pain. (Id. at 115a.) Claimant 

indicated that he treated with Dr. Olsen on two separate occasions in 2016 and that, 

on those occasions, Dr. Olsen examined Claimant’s left shoulder, ordered an MRI,

reviewed the results of the MRI with Claimant, and referred Claimant to Joseph J. 

Chun, D.O., for pain management. (Id. at 101a-03a, 116a.) 

Claimant testified that he began treating with Dr. Chun in spring/early 

summer 2016, and Dr. Chun referred him to John D. Kelly, M.D., who scheduled a 

full rotator cuff tear surgery on his left shoulder. (Id. at 92a-93a.) Claimant testified 

further that he continues to experience a stabbing pain in the front and towards the 

top of his left shoulder joint. (Id. at 97a.) While he has good days, his left shoulder 

joint has never been pain free since the January 31, 2013 work-related injury. 

(Id. at 104a-05a.) He did not believe that he was capable of returning to work as a 

Deputy Sheriff due to the weakness and pain in his left shoulder. (Id. at 98a.) 

Claimant further indicated that he has not sustained any additional injuries to his left 

shoulder since the January 31, 2013 work-related incident. (Id. at 113a.)
4

Claimant also presented the deposition testimony of Dr. Chun, who is 

board certified in pain medicine and physical medicine and rehabilitation. 

(Id. at 166a.) Dr. Chun first treated Claimant on June 6, 2016, for complaints of pain 

in his left shoulder and neck. (Id. at 167a-68a.) At that time, Claimant reported 

persistent pain in the anterolateral area of his left shoulder and the left upper 

trapezius/upper shoulder region since the January 31, 2013 work-related injury. 

(Id. at 168a-69a.) Claimant also reported that his left shoulder pain was constant, 

achy and stabbing in nature, and aggravated by activity. (Id. at 169a-70a.) 

Dr. Chun’s physical examination of Claimant’s left shoulder revealed painful and 

restricted range of motion above 90 degrees, positive impingement signs, a positive 

biceps tendon provocative maneuver, and a positive labrum maneuver. 

(Id. at 171a-72a.) Following his examination of Claimant, Dr. Chun’s initial 

impression was that Claimant’s January 31, 2013 work-related injury caused him to 

suffer persistent left shoulder pain. (Id. at 172a-73a.) Dr. Chun diagnosed Claimant 

with a “left shoulder injury requiring shoulder arthroscopic labral tear repair and 

decompression and . . . cervical fusion at the C5-6 level[,] . . . persistent rotator cuff 

tendonitis, bursitis and possible bicipital tendonitis and probably persistent pain 

related to the superior labral tear.” (Id. at 173a.) Based on his diagnosis, Dr. Chun 

recommended a diagnostic ultrasound of Claimant’s left shoulder, a steroid injection 

into Claimant’s left glenohumeral joint, and the use of a topical compound pain 

cream. (Id. at 173a-74a.)

Dr. Chun testified that Claimant returned to him on July 11, 2016. 

(Id. at 174a.) Despite the steroid injection into Claimant’s left glenohumeral joint, 

Claimant’s condition remained the same. (Id. at 174a-75a.) As a result, Dr. Chun 

recommended that Claimant undergo a platelet-rich plasma injection in his left 
5

glenohumeral joint. (Id. at 176a.) Dr. Chun also continued Claimant’s work 

restrictions of sedentary duty with no activities involving the left shoulder. (Id.) 

Thereafter, on July 25, 2016, Claimant underwent a diagnostic ultrasound of his left 

shoulder, which revealed moderate subacromial subdeltoid bursal thickening, 

supraspinatus tendinopathy, possible subtle interstitial tearing of the tendon, and a 

small partial-thickness tear of the infraspinatus tendon. (Id. at 177a-78a, 221a-22a.) 

Dr. Chun indicated that these results were consistent with both his physical 

examinations of Claimant and the May 2016 MRI of Claimant’s left shoulder. 

(Id. at 178a.) Claimant again returned to Dr. Chun on September 28, 2016. 

(Id. at 180a.) At that time, Claimant reported only slight improvement with his pain 

following the platelet-rich plasma injection into his left shoulder and his overall 

condition remained unchanged. (Id. at 180a-81a.) Dr. Chun explained that 

platelet-rich plasma injections can take several weeks to a couple months to deliver 

results, and, therefore, he recommended that Claimant wait some additional time to 

see if he received any improvement with his symptoms. (Id. at 181a.)

Dr. Chun testified that he next treated Claimant on November 28, 2016. 

(Id. at 182a.) At that time, Claimant reported minimal improvement in his pain and 

that his pain continued to be aggravated with activity; Claimant’s condition 

otherwise remained the same. (Id. at 182a-83a.) Because Claimant continued to 

experience significant pain and functional limitations despite injections, 

medications, physical therapy, and home exercises, Dr. Chun referred Claimant to 

Dr. Kelly for an orthopedic surgery consultation. (Id. at 183a-84a.) Claimant 

returned to Dr. Chun on January 30, 2017, and March 13, 2017. (Id. at 184a, 187a.) 

On those dates, Claimant’s pain complaints and Dr. Chun’s physical examination of 

Claimant remained unchanged. (Id. at 184a-87a.) Dr. Chun explained, however, 
6

that, based on Dr. Kelly’s consultation of Claimant, his impression had changed to 

include a high-grade partial rotator cuff tear in Claimant’s left shoulder. 

(Id. at 187a-89a.) Dr. Chun also explained that Claimant’s work restrictions 

remained the same as they had throughout his treatment—i.e., sedentary duty with 

no activities involving the left shoulder. (Id. at 181a, 183a, 186a, 189a-90a.) 

Dr. Chun further testified that the May 2016 MRI of Claimant’s left 

shoulder, when compared with a March 2013 MRI, evidenced a worsening of 

Claimant’s condition with respect to the supraspinatus tendon. (Id. at 192a-94a.) 

Overall, Dr. Chun opined that Claimant continues to suffer from his 

January 31, 2013 work-related injury, which he diagnosed as a high-grade partial 

rotator cuff tear, rotator cuff tendonitis, bursitis, possible bicipital tendinitis, and 

persistent pain relative to the superior labral tear. (Id. at 196a-97a.) Dr. Chun further 

opined that he would continue to restrict Claimant to sedentary duty with no 

activities involving the left shoulder and that Claimant was not capable of returning 

to work as a Deputy Sheriff. (Id. at 198a, 202a.) Dr. Chun also opined that the 

disability related to Claimant’s work-related left shoulder injury: (1) recurred at 

least as of his initial examination of Claimant on June 6, 2016; and (2) worsened 

since October 24, 2014, the date of WCJ Spizer’s decision terminating Claimant’s 

benefits relative to the left shoulder injury. (Id. at 199a-200a.) With respect to the 

worsening of Claimant’s left shoulder injury, Dr. Chun explained that the symptoms 

relative to Claimant’s left shoulder progressed throughout his treatment of Claimant

and that such progression was the natural progression of the work-related injury to 

Claimant’s left shoulder. (Id. at 200a.)

On cross-examination, Dr. Chun admitted that, in the course of his 

treatment of Claimant, he only reviewed Dr. Olsen’s medical records for Claimant 
7

from May 2016, and he did not review Dr. Olsen’s operative report or Claimant’s 

medical records from Michael Tracy, M.D., Christian Fras, M.D., or Dr. Haak. 

(Id. at 204a-05a, 210a-11a.) Dr. Chun also admitted that Claimant had reported to 

him that his left shoulder pain had been persistent since the time of his 

January 31, 2013 work-related injury and that the problem with his left shoulder was 

chronic. (Id. at 205a, 227a-28a.) Dr. Chun also indicated that, since June 2016, 

Claimant’s left shoulder condition had not improved and was sometimes worse.3 

(Id. at 228a.)

On August 14, 2017, WCJ Grady issued a decision and order, granting 

Claimant’s reinstatement petition. In so doing, WCJ Grady made the following 

relevant findings of fact and credibility determinations: 

18. After having made a careful review of the evidence 

of record[,] the testimony of [Claimant] and the 

findings and opinions of Dr. Chun have been 

accepted as most credible and convincing and to this 

end it is found that [Claimant’s] original work 

injury to his left shoulder has recurred . . . and 

therefore [C]laimant’s [r]einstatement [p]etition 

shall be granted . . . .

19. In reaching the above finding this Judge is mindful 

of [Claimant’s] medical history since his work 

injury of January 31, 2013. And this Judge is also 

mindful of [WCJ] Spizer’s previous decision from 

May 2016 wherein he found [C]laimant fully 

recovered from his left shoulder injury and 

terminated [Employer’s] responsibility with respect 

to the same effective October 24, 2014. 

 

3 Employer presented the deposition testimony of Neil Kahanovitz, M.D., who is board 

certified in orthopedic surgery and restricts his practice to disorders of the spine. 

(R.R. at 309a-10a.) Dr. Kahanovitz performed an independent medical examination of Claimant 

on August 12, 2016. (Id. at 312a.) Dr. Kahanovitz restricted his independent medical examination, 

however, to Claimant’s cervical issues; he did not address Claimant’s left shoulder complaints or 

subsequent treatment thereof. (Id. at 313a-14a.)
8

Against that backdrop[,] the testimony of 

[Claimant] and Dr. Chun having been reviewed 

most carefully and having accepted both as credible 

particularly [C]laimant’s complaints through 2014, 

and following his surgery in February 2014 on his 

left shoulder, which complaints continued 

through 2014, into 2015 and 2016 and necessitated 

surgery with Dr. Kelly in February 2017, the same 

has caused this Judge to grant [C]laimant’s 

[r]einstatement [p]etition.

Claimant credibly explained and described shoulder 

pain particularly in his shoulder joint in the front 

and towards the top of his shoulder area noting that 

it felt like a screwdriver in his shoulder with a sharp 

stabbing pain. Claimant described this pain existed 

even after the February 2014 surgery with the pain 

at times radiating down his left arm and into his 

bicep and elbow. 

While Dr. Kahanovitz who testified on behalf of 

[Employer] herein performed an evaluation on 

[Claimant] on August 12, 2016, it is noteworthy that 

Dr. Kahanovitz quite clearly identified that [neither] 

[C]laimant’s shoulder complaints nor subsequent 

treatment of his shoulder was addressed at the time 

of his independent medical evaluation. Dr. 

Kahanovitz’s evaluation was almost exclusively 

done with respect to [Claimant’s] neck. The terms 

almost exclusively have been used inasmuch as 

admittedly [C]laimant explained to Dr. Kahanovitz 

his work injury did involve a left shoulder injury 

and identified to Dr. Kahanovitz that he was 

continuing treatment and pain management for his 

left shoulder. Dr. Kahanovitz offered nothing more. 

(WCJ Grady’s Decision at 8-9 (emphasis added).) Based on these findings of fact 

and credibility determinations, WCJ Grady concluded that Claimant met his burden 

of proof under his reinstatement petition and established that he suffered a recurrence 

of his January 31, 2013 work-related left shoulder injury and that he is disabled as a 

direct result thereof. Employer appealed WCJ Grady’s decision to the Board, which 
9

affirmed WCJ Grady’s decision. In so doing, the Board—applying the burden of 

proof applicable to a reinstatement of benefits following a suspension—concluded 

that Dr. Chun’s credible testimony constituted the substantial evidence necessary for 

Claimant to meet his burden of proof under his reinstatement petition. Employer 

then petitioned this Court for review. 

On appeal,4 Employer argues: (1) the Board committed an error of law 

by affirming WCJ Grady’s decision because the Board and/or WCJ Grady applied 

the incorrect burden of proof to Claimant’s reinstatement petition; (2) there is not 

substantial evidence of record to support WCJ Grady’s finding that Claimant’s left 

shoulder injury had recurred as of June 6, 2016; and (3) the substantial evidence of 

record establishes that Claimant did not sustain a recurrence of his January 31, 2013 

work-related left shoulder injury because the current condition of Claimant’s left 

shoulder is unrelated to Claimant’s original work-related injury and/or Claimant’s 

employment with Employer. 

First, we address Employer’s argument that the Board committed an 

error of law by affirming WCJ Grady’s decision because the Board and/or WCJ 

Grady applied the incorrect burden of proof to Claimant’s reinstatement petition. 

More specifically, Employer argues that WCJ Spizer previously determined that 

Claimant had fully recovered from his work-related left shoulder and upper back 

injuries and terminated Claimant’s workers’ compensation benefits in connection 

with such injuries effective October 24, 2014. Employer further argues that, rather 

than applying the burden of proof applicable to a reinstatement of benefits following 

 

4 Our review is limited to determining whether an error of law was committed, whether 

necessary findings of fact are supported by substantial evidence, and whether constitutional rights 

were violated. Combine v. Workers’ Comp. Appeal Bd. (Nat’l Fuel Gas Distrib. Corp.), 

954 A.2d 776, 778 n.1 (Pa. Cmwlth. 2008), appeal denied, 967 A.2d 961 (Pa. 2009).
10

a termination of benefits, the Board and/or WCJ Grady incorrectly applied the 

burden of proof applicable to a reinstatement following a suspension of benefits. In 

response, Claimant argues that, while the Board incorrectly cited the burden of proof 

applicable to reinstatement following a suspension of benefits in its decision, WCJ 

Grady correctly applied the burden of proof applicable to reinstatement following a 

termination of benefits, and, therefore, the Board’s citation to the incorrect burden

of proof constitutes harmless error. 

When a claimant seeks a reinstatement of benefits, his burden of proof 

is dependent on whether his benefits had been previously suspended or terminated. 

Pieper v. Ametek-Thermox Instruments Div., 584 A.2d 301, 304-05 (Pa. 1990). “A 

claimant seeking reinstatement following a suspension of benefits must prove that: 

(1) through no fault of his . . . own, the claimant’s disability, i.e., earning power, is 

again adversely affected by the work-related injury, and (2) the disability which gave 

rise to the original claims continues.” Sweeny v. Workmen’s Comp. Appeal Bd. 

(Whitman’s Chocolates), 695 A.2d 877, 880 (Pa. Cmwlth. 1997). “A claimant 

seeking [a] reinstatement of benefits following a termination[, however,] carries a 

heavy burden because the claimant has been adjudicated to be fully recovered.” 

Nat’l Fiberstock Corp. (Greater New York Mut. Ins. Co.) v. Workers’ Comp. Appeal 

Bd. (Grahl), 955 A.2d 1057, 1062 (Pa. Cmwlth. 2008). “In order to prevail on a 

reinstatement petition after workers’ compensation benefits have been terminated, a 

claimant must establish that his disability ‘has increased or recurred since the prior 

decision and that h[is] physical condition has changed in some manner.’” 

Namani v. Workers’ Comp. Appeal Bd. (A. Duie Pyle), 32 A.3d 850, 854 

(Pa. Cmwlth. 2011) (alteration in original) (quoting Taylor v. Workers’ Comp. 

Appeal Bd. (Servistar Corp.), 883 A.2d 710, 713 (Pa. Cmwlth. 2005)), appeal 
11

denied, 47 A.3d 849 (Pa. 2012). A claimant must prove the change in his physical 

condition “by precise and credible evidence of a more definite and specific nature 

than that upon which initial compensation was based.” Nat’l Fiberstock Corp., 

955 A.2d at 1062 (quoting Simeone v. Workmen’s Comp. Appeal Bd. (United Parcel 

Serv.), 580 A.2d 926, 928 n.5 (Pa. Cmwlth. 1990), appeal denied, 593 A.2d 428 

(Pa. 1991)).

Here, the parties do not dispute that WCJ Spizer terminated Claimant’s 

benefits with respect to his left shoulder injury as of October 24, 2014, or that 

Claimant is seeking a reinstatement of his benefits following termination. While we 

agree with Employer that the Board applied the incorrect burden of proof to 

Claimant’s reinstatement petition—i.e., the Board applied the burden of proof 

following a suspension of benefits rather than the burden of proof following a 

termination of benefits—this Court is satisfied that WCJ Grady applied the burden 

of proof applicable to a reinstatement following a termination of benefits. In his 

decision, WCJ Grady specifically indicated that the injury to Claimant’s left 

shoulder had “recurred.” (WCJ Grady’s Decision at 8, Finding of Fact No. 18.) 

WCJ Grady explained that Claimant’s left shoulder complaints continued 

into 2015 and 2016 and necessitated surgery with Dr. Kelly in 2017—i.e., WCJ 

Grady discussed how Claimant’s disability increased and his physical condition had 

changed since October 24, 2014, the date on which WCJ Spizer terminated 

Claimant’s benefits related to his left shoulder injury. (WCJ Grady’s Decision at 8, 

Finding of Fact No. 19.) WCJ Grady further explained that he was “mindful of 

[WCJ] Spizer’s previous decision from May 2016 wherein he found [C]laimant fully 

recovered from his left shoulder injury and terminated [E]mployer’s responsibility 

with respect to the same effective October 24, 2014.” (WCJ Grady’s Decision at 8, 
12

Finding of Fact No. 19.) Given this analysis, it is clear that WCJ Grady properly 

applied the burden of proof applicable to a reinstatement of benefits following 

termination as set forth in Namani. The Board’s error in applying the incorrect 

burden of proof is harmless.

5

Next, we address Employer’s argument that there is not substantial 

evidence of record to support WCJ Grady’s finding that Claimant’s left shoulder 

injury had recurred as of June 6, 2016. More specifically, Employer argues that 

Claimant failed to establish through his or Dr. Chun’s testimony that his left shoulder 

condition had recurred or worsened; in fact, “Dr. Chun agreed that the alleged issues 

with [Claimant’s] left shoulder were not acute conditions that recurred or worsened 

in June 2016, but rather are chronic and longstanding.” (Employer’s Br. at 17.) In 

response, Claimant argues that WCJ Grady’s finding that Claimant’s left shoulder 

injury had recurred and worsened after Claimant’s workers’ compensation benefits 

had been terminated is supported by the credible testimony of Dr. Chun. More 

 

5

In Furnari v. Workers’ Compensation Appeal Board (Temple Inland), 90 A.3d 53 (Pa. 

Cmwlth. 2014), the claimant sought to reinstate his temporary total disability benefits following 

his separation from employment by filing a reinstatement petition and/or a claim petition. Furnari, 

90 A.3d at 58. The workers’ compensation judge (WCJ) denied the claimant’s reinstatement 

petition, concluding that the medical-only notice of compensation payable (NCP) coupled with the 

employer’s payment of the claimant’s salary constituted a de facto NCP and the claimant failed to 

meet his burden of proving that his condition had worsened such that he could not perform the 

modified-duty position with the employer. Id. On appeal to the Board, the Board disagreed with 

both the WCJ’s finding of a de facto NCP and the WCJ’s application of the burden of proof 

applicable to reinstatement petitions but affirmed the WCJ’s decision on the basis that the claimant 

failed to meet his burden of proof that he suffered a worsening of his condition. Id. On appeal to 

this Court, we held that the Board erred in applying the burden of proof applicable to claim 

petitions but that such error was harmless, because the WCJ properly applied the burden of proof 

applicable to reinstatement petitions and both the Board and the WCJ concluded that the claimant 

failed to meet his burden of proving that his earning power was adversely affected by his 

work-related injury. Id. at 62. Ultimately, this Court reversed the Board’s order to the extent that 

the Board applied the burden of proof applicable to claim petitions but affirmed the Board’s order 

in all other respects. Id. at 74.
13

specifically, Claimant argues that Dr. Chun credibly testified that Claimant’s left 

shoulder condition worsened since October 24, 2014 (the date that WCJ Spizer 

terminated Claimant’s benefits with respect to the left shoulder injury), that the 

symptoms in Claimant’s left shoulder have progressed, and that such progression is 

the natural progression of Claimant’s January 31, 2013 work-related injury. 

In workers’ compensation proceedings, the WCJ is the ultimate finder 

of fact. Williams v. Workers’ Comp. Appeal Bd. (USX Corp.-Fairless Works), 

862 A.2d 137, 143 (Pa. Cmwlth. 2004). As fact-finder, matters of credibility, 

conflicting medical evidence, and evidentiary weight are within the WCJ’s exclusive 

province. Id. If the WCJ’s findings are supported by substantial evidence, they are 

binding on appeal. Agresta v. Workers’ Comp. Appeal Bd. (Borough of 

Mechanicsburg), 850 A.2d 890, 893 (Pa. Cmwlth. 2004). Substantial evidence is 

relevant evidence that a reasonable mind might accept as adequate to support a 

finding. Mrs. Smith’s Frozen Foods Co. v. Workmen’s Comp. Appeal Bd. (Clouser), 

539 A.2d 11, 14 (Pa. Cmwlth. 1988). “In 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.” Hoffmaster v. Workers’ Comp. Appeal Bd. (Senco 

Prods., Inc.), 721 A.2d 1152, 1155 (Pa. Cmwlth. 1998). “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.” Id. 

Here, WCJ Grady’s finding that Claimant’s left shoulder injury had 

recurred as of June 6, 2016, is supported by substantial evidence. Dr. Chun credibly 

testified that Claimant continues to suffer from his January 31, 2013 work-related 

left shoulder injury and that the disability relative to such injury recurred at least as 

of his initial examination of Claimant on June 6, 2016, and worsened since 
14

October 24, 2014, the date on which WCJ Spizer terminated Claimant’s benefits 

with respect to the injury to Claimant’s left shoulder. Dr. Chun explained that the 

symptoms relative to Claimant’s left shoulder progressed throughout his treatment 

of Claimant and that such progression was the natural progression of the 

January 31, 2013 work-related injury to Claimant’s left shoulder. While it is true

that Claimant testified that his left shoulder joint has never been pain free since the 

January 31, 2013 work-related injury and that Claimant did not specifically report 

to Dr. Chun that his left shoulder condition had recurred or worsened since 

October 24, 2014, these facts are not dispositive. Dr. Chun, as the medical 

professional, considered Claimant’s complaints, the results of Claimant’s diagnostic 

testing, and his physical examination of Claimant to determine whether Claimant’s 

left shoulder condition had recurred or worsened. Even though Claimant described 

his pain as persistent since the January 31, 2013 work-related injury, Dr. Chun

concluded based on his review of Claimant’s condition, including diagnostic testing 

and his physical examination, that Claimant’s left shoulder condition had recurred 

or worsened.

In addition, contrary to Employer’s contentions, Dr. Chun did not agree

that Claimant’s left shoulder issues were chronic and longstanding rather than acute 

conditions that had recurred or worsened in June 2016. The testimony cited by 

Employer in support of this proposition is simply Dr. Chun’s admission that 

Claimant had reported to him that his left shoulder pain had been persistent since 

the time of his January 31, 2013 work-related injury and that the problem with his 

left shoulder was chronic. (R.R. at 205a, 227a-28a.) Employer has not directed us 

to anywhere in the record where Dr. Chun specifically opined that Claimant’s left

shoulder injury had not recurred or worsened in June 2016. For these reasons, we 
15

conclude that substantial evidence of record exists to support WCJ Grady’s finding 

that Claimant’s left shoulder injury had recurred as of June 6, 2016.

Lastly, Employer argues that the current condition of Claimant’s left 

shoulder is not related to Claimant’s original work-related injury and/or Claimant’s 

employment with Employer because, “[a]s of June 6, 2016, [Claimant] had not 

worked for . . . Employer for almost [three] years [and] the left shoulder abnormality 

noted by Dr. Kelly was classified by him as a non-traumatic degenerative tear.” 

(Employer’s Br. at 19.) In response, Claimant argues that Employer’s attempt to 

establish that the current condition of his left shoulder is not a recurrence of his 

January 31, 2013 work-related injury but rather “is due to some unnamed non-work 

related cause . . . [is] utter speculation with no basis in the record.” (Claimant’s Br. 

at 12.) More specifically, Claimant argues that the only evidence of record to 

support the worsening of Claimant’s work-related left shoulder injury is the 

testimony of Dr. Chun, which establishes that “the worsening of [Claimant’s] left 

shoulder injury following the termination of benefits was the natural progression of 

the original work injury.” (Claimant’s Br. at 13.)

Here, Employer has framed its issue in terms of whether there is 

substantial evidence to support a finding that was not made by WCJ Grady—i.e., 

whether there is substantial evidence of record to establish that Claimant did not 

sustain a recurrence of his January 31, 2013 work-related left shoulder injury. The 

real issue before this Court, however, is whether there is substantial evidence of 

record to support WCJ Grady’s necessary findings, in this instance, that Claimant 

suffered a recurrence of his January 31, 2013 work-related left shoulder injury. This 

argument is essentially the same argument made by Employer above, and, as 

explained more fully above, WCJ Grady’s finding that Claimant suffered a 
16

recurrence of his January 31, 2013 work-related left shoulder injury is supported by 

substantial evidence. Dr. Chun credibly testified that Claimant continues to suffer 

from his January 31, 2013 work-related left shoulder injury and that the disability 

relative to such injury recurred at least as of his initial examination of Claimant on 

June 6, 2016, and worsened since October 24, 2014. 

Employer seems to suggest that, just because Claimant had not worked 

for Employer for almost three years prior to June 6, 2016, and Dr. Kelly, in his 

April 10, 2017 operative report, classified Claimant’s left shoulder abnormality as a 

non-traumatic tear, Claimant could not possibly have suffered a recurrence of his

January 31, 2013 work-related injury. We stress, however, that it does not matter if 

there is evidence in the record that could support a finding contrary to that made by 

WCJ Grady; the only inquiry is whether there is substantial evidence of record to 

support WCJ Grady’s findings. Hoffmaster, 721 A.2d at 1155. In addition, 

Employer has failed to cite any place in the record where the current condition of 

Claimant’s left shoulder is linked to anything other than the January 31, 2013 

work-related injury. Furthermore, while Dr. Kelly’s operative report may indicate 

that Claimant sustained “labral fraying incomplete non-traumatic tear and bursitis” 

in his left shoulder, such an indication is not conclusive evidence that the 

non-traumatic tear was not related to Claimant’s January 31, 2013 work-related 

injury, as no medical provider provided any testimony regarding the significance or 

insignificance of Dr. Kelly’s finding. For these reasons, we reiterate our conclusion

that there is substantial evidence of record to support WCJ Grady’s finding that 

Claimant suffered a recurrence of his January 31, 2013 work-related left shoulder 

injury.
17

Accordingly, we affirm the Board’s order. 

P. KEVIN BROBSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lackawanna County, :

Petitioner :

:

v. : No. 1084 C.D. 2018

:

Workers’ Compensation :

Appeal Board (Rosky), :

Respondent :

O R D E R

AND NOW, this 4

th day of June, 2019, the order of the Workers’ 

Compensation Appeal Board is hereby AFFIRMED.

P. KEVIN BROBSON, Judge