IN THE COMMONWEALTH COURT OF PENNSYLVANIA

US Airways, Inc., through its insurer : New Hampshire Insurance Company : and Sedgwick Claims Management : Services, :

Petitioners :

:

v. : No. 1476 C.D. 2017 : Submitted: March 16, 2018 Workers’ Compensation Appeal : Board (Uram), :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY SENIOR JUDGE PELLEGR INI FILED: April 9, 2018

American Airlines, Inc., previously U.S. Airways, Inc., (Employer)
petitions for review of the Workers’ Compensation Appeal Board’s (Board)

decision affirming a w orkers ’ compensation j udge’s (WCJ) order granting Michael

Uram’ s (C laimant) Review Petition to amend his work injury to include an
aggravation of avascular necrosis and degenerative joint disease 1 a s well as

1 Avascular necrosis is the pathologic death of a portion of tissue due to deficient blood supply, resulting in irreversible damage. Stedman’s Medical Dictionary, 25 th Edition, Williams & Wilkins (1990) , pp. 1026

- 1027

.2

affirming the denial of Employer’s Termination and Suspension Petition. For the
following reasons, we affirm.

I.

Claimant began employment with Employer in 1979 as a ramp
agent/baggage handler. In December 2014, Claimant suffered a work injury and
was unable to work from January 19, 2015

, to June 22, 2015. A Notice of
Temporary Compensation Payable was issued d escribing the injury as a “right
groin sprain/strain.” (Reproduced Record (R.R.) at 1a.) Following Claimant’s

return to work, the Department of Labor & Industry (Department) issued a
Notification of Suspension

. Claimant then filed an Employee Challenge to the
Notification of Suspension.

On September 18, 2015, Employer filed a Termination and
Suspension Petition alleging that Claimant was fully recovered and capable of

return ing to work without restriction

. On November 2, 2015, the parties entered

int o a Supplemental Agreement providing that Claimant was restricted by his
treating phys ician to working 40 hours per week without overtime

. Claimant was

to receive weekly partial disability benefits in the amount of $512.63 to
compensate him for the loss o f overtime wages. The Supplemental Agreement
only resolved t he Employee Challenge and did not address Employer’s

Ter mination and Suspension Petition

.

On December 11, 2015, Claimant filed a Petition to Review seeking
to amend the description of his work injury to include an aggravation of underlying3

avascular necrosis and early degenerative joint disease of the right hip. Employer

filed an answer d enying all material averments.

Before the WCJ, Claimant testified that he was working in the a rea

where th e bags came down fro m the ticket counter onto a carousel. When he lifted

a bag off the carousel to put it on the top shelf of a baggage cart, he twisted and felt
a pull in his hip. He went on to testify that he still experiences jabbing and
shooting pain s down his l eg, back and buttocks and th at it increases with activity.

To supp ort the notion that the injury was work

- related, Claimant’s
treating physician, Michael R. Pagnotto, M.D. (Dr. Pagnotto)

, a board certified
orthopedic surgeon who specializes i n the treatment of hip and knee arthritis,

testified that Claimant’s right hip injury was caused by avascular necrosis

, opining:

Yes, I felt that this was a right hip avascular necrosis with a small area of femoral head collapse.

At that time, I felt tha t this avascular necrosis was aggravated by his work

- related injury, which caused the small fracture of the femoral head, which is

– you know we use the word fracture here, but really when you have avascular necrosis, you have bone that has lost its blood supply and so what you are really looking at is collapse. When the bone loses its blood supply, the bone can start to crumble. So most people, when the y hear fracture, they think you know that you broke a bone in a car accident or you know fell and twist ed, but this is more of what I was referring to in my note, that he had this small area of, small quote fracture in the femoral head.

I said given that his mechanism, that it didn’t make sense that he would truly have an acute fracture as much as avascula r necrosis with a little bit of collapse.4

(R.R. at 109a

- 1 10a.) He went on to testify that it was not a g roin sprain or strain

because the MRI did not show any eviden ce of an injury to Claimant’s muscles

, but it did show e vidence of an injury to his femora l head

, which was an aggravation of his underlying avascular necrosis.

Regarding Dr. Pagnotto ’s recommendation that Claimant be restricted
to working no more than 40 hours per week, t he doctor testified that two MRIs
showed significant hip pathology and that working more than 40 hours per week

would aggravate Claimant’s hip and cause him pain.

In opposition, Employer offered the testimony of William D.
Abraham, M.D. (Dr. Abraham), a lso a board certified orthopedic surgeon

. Based

on his examination, Dr. Abraham disagreed with Dr. Pagn otto’s diagnosis that

Claimant’s condition was the result of his avascular necrosis having been
aggravated at work

. He did not deny that Claimant had both degenerative joint

disease and avascular necrosis

, but opined that b oth conditions were pre

- existing

and that there was no evidence that the work injury aggravated or substantially

cha nged the prognosis of those pre

- existing conditions. Dr. Abraham opined that
the injury could best be described as a groin sprain or strain

. He then explained

how he arrived at the conclusion that the w ork injury did not affect the avascular
necrosis or the underlying degenerative joint disease.

[ I ] t’s my opinion, so we can all accept that it’s an opinion, and to look at that and sort of ma ke a conclusion, but I think it would make sense, and here’s my rationale, one was that I don’t think there’s any denying that these particular conditions were pre

- existing this date. There’s certainly nothing about lifting bags on5 that particular day tha t caused arthritis, we can all accept that that’s a process that’s been ongoing for a long period of time. And similarly, the avascular necrosis is not a process that would be created as a result of lifting a fifty

or sixty

- pound bag. So I think that to me those are givens. So then the real question is what happened on that particular day and was there anything to suggest that he had anything more than a groin strain? And I arrived at that diagnosis based really on sort of a generic sense that this gen tleman had lifted, he had what I would describe as a so ft

- tissue injury, that’s the strain in the groin, that’s where he had his pain, and that injury, as I said, went on to satisfactory recovery.

(R.R. at 181a

- 1 82a) (emphasis added).

The WCJ denied Em

ployer’s Termination and S uspensio n Petition
and granted Claimant’s Petition to Review . In so doing, the WCJ accepted the
testimony of Dr. Pagnotto to be more credible than Dr. Abraham ’s testimony. The

WCJ rejected Dr. Abraham’s testimony where it confli cted with Dr. Pagnotto. I n finding Dr. Abraham to be less credible, the WCJ noted that Dr. Abraham only

examined C laimant once and diagnosed him with a groin strain even though the
diagnostic studies did not support this opinion. The WCJ also noted that Dr.
Abraham repeatedly discussed how the condition of avascular necrosis wa s not
caused by the work injury even though that was not at issue

, t he t rue issue being
whether Claimant’s pre

- existing injury was aggravated by the work injury.6 Employer appealed the WCJ’s decision and the Board affirmed. This
petition for review followed. 2

II.

A.
Employer argues that the WCJ erred by capriciously disregarding the
substantial competent evidence presented by Employer’s expert, Dr. Abraham

, and

instead relied upo n the equivocal and legally incompetent opinions of Claimant’s
expert, Dr. Pagnotto, in finding that Claiman t had met his burden of proof.

What Employer’s argument ignores is that it is not within our scope of
review to judge t he probative value of testi mony even if, on the same record, we might reach a different result. American Chain & Cable Co. v. Workmen’s
Compensation Appeal Board , 391 A.2d 50 (Pa. Cmwlth. 1978). As we have held
repeatedly , i t is up to the WCJ to determine the credibili ty and weigh t of the

evidence presented. Container Corporation of America v. Workmen’s
Compensation Appeal Board , 429 A.2d 1264, 1267 (Pa. Cmwlth. 1981). In so
doing, the WCJ may accept or reject the testimony of any witness in whole or in
part, including the testim ony of medical witnesses

. Id.

2 Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether a necessary finding of fact was unsupported by substantial evidence. American Refrig erator Equipment Co mpany v. Workmen ’ s Comp ensation Appeal Board , 377 A.2d 1007 (Pa. Cmwlth. 1977).7 Because we may not reweigh evidence and because it was fully within
the WCJ’s power to make the credibility determinations she made as well as to
assign the proper weight of the evidence presented based upon those

determina tions , we may not disturb a WCJ ’s decision if substantial evidence

supports those findings.

B.

Employer contends that there is not subs tantial evidence to support the

WCJ’s denial of its Termination and Suspension Pe tition because Dr. P agnotto ’s

testimon y that Claimant has not fully recovered f rom his work

- related injury is
equivocal. 3 Employer notes that it is undisputed that the MRIs and X

- rays

indicated that by April 2015

, any sign of fracture or bone collapse attributed to the
work injury had resolve d itself and

, th erefore, the WCJ should have granted the

Termination and Suspension Petition

.

Employer con tends that the only reason its Termination and
Suspension Petition was not granted was because the WCJ relied on Dr. Pagnotto’s

3 An emplo yer seeking to terminate worker s ’ compensation benefits bears the burden of proving either that t he employee’ s disability has ceased or that any current disability arises from

a cause unre lated to the employee’ s work injury. Udvari v. Workmen’ s Compensation Appeal Board (USAir, Inc.), 705 A.2d 1290, 1293 (Pa. 1997)

. The employer meets this bu rden when its

m edical expert unequivocally testified that it is his opinion, within a reasonable degree of medical certainty, that the claimant is fully recovered, can return to work without restrictions and that there are no objective medical findings which either substantiate the claims of pain or c onnect them to the work injury.

Id

.8

equivocal testimony

. For example, when asked if there was any evid ence of
fracture or collapse in Claimant’s hip

, Dr. Pagnotto answered : “ So, there was no
evidence of ongoing fracture, yes. I would argue that he probably still had some
degree of collapse because it’s prett y rare that someone who has a small area of
collapse spontaneously heals that.” (R.R. at 139a.) Employer contends that
testimony such as this, that Claimant “probably still had some deg ree of collapse

, ”
renders Dr. Pagnotto’s entire testimony equivocal b ecause it is not suffic iently

definitive and

, therefore, it is in competent

.

Medical testimony is incompetent if it is equivocal. Kurtz v. Workers’
Compensation Appeal Board (Waynesburg College ), 794 A.2d 443 (Pa. Cmwlth.

2002). A court will find m edica l testimony to be unequivocal and competent if the
medical expert, after providing a foundation, testifies that in his professional
opinion

, he believes a certain fact or condition exists. Johnson v. Workers’
Compensation Appeal Board (Abington Memorial H ospital ) , 8 16 A.2d 1262 , 1267
(Pa. Cmwlth. 2003). A court will consider medical testimony equivocal if it is

found to be based up on mere possibilities. Signorini v. Workmen’ s Compensation
Appeal Board (United Parcel Serv ice ), 664 A.2d 672 (Pa. Cmwlth. 19 95). In
determining whether medical testimony is u nequivocal, the medical witness’ s entire testimony must be reviewed and taken as a whole. Indian Creek Supply v.

Workers’ Compensation Appeal Board (Anderson) , 729 A.2d 157 , 160 (Pa.

Cmwlth. 1999). Wheth er medical testimony i s unequivocal is a question of law
fully reviewable on appeal. Johnson , 816 A.2d at 1267.9 The use of terms such as “might have been,” “could have been ,” or
“probably” is an indicator that the offered opinion is equivocal. Lewis v. Workmen’s Compensation Appeal Board (Pittsburgh Board of Education) , 472

A.2d 1176, 1178 (Pa. Cmwlth. 1984)

. However, there is no requi rement that every

utterance which escapes the lips of a medical witness on a medical subject must be
certain, positive and without reservation, exception or peradventure of doubt.

Heath v. Workmen’ s Compensation Appeal Board (Agway, Inc.), 514 A.2d 1021

, 1023 (Pa. Cmwlth. 1986). The claimant has produced competent evidence to
support an award even if the medical witness admits to uncertainty, reservation or
lack of information with respect to specific details

, so long as the expert does not
recant the opinion or belief first expressed. Philadelphia College of Osteopathic

Medicine v. Workmen’ s Compensation Appeal Board (L ucas) , 465 A.2d 132 (Pa.

Cmwlth. 1983).

Although Dr. Pagnotto’s statement that he “would argue [Claimant]
probably still had s ome degree of collapse” is equivocal, it is an isolated statement

. Throughout his testimony, Dr. Pagnotto c onsistently opined t hat Claimant’ s work
injury cause d an aggravation of pre

- existing avascular necrosis with secondary
degenerative joint disease , which would render a 40 hour per week limitation a
reasonable accommodation. Furthermore, Dr. Pagnotto never recanted hi s medica l
opinion. Therefore, Dr. Pagnotto’s testimony was unequivocal and competent.10 C.
Employer also argues that the WCJ did not issue a reasoned d ecision

because she failed to address competent conflicting evidence and reconcile the

material contradictions i n the record.

When faced with conflicting evidence, the WCJ must adequately
explain the reasons for rejecting or discrediting competent evidence. Daniels v.
Workers’ Compensation Appeal Board (Tristate Transport) , 828 A.2d 1043, 1047

(Pa. 2003). A reas oned decision include s an explanation of why certain testimony
is rejected and other testimony is accepted

. See PEC Contracting Engineers v.
Workers’ Compensation Appeal Board (Hutchison) , 717 A.2d 1086, 1088 (Pa.

Cmwlth. 19 9 8) (holding that the decision was reasoned where the WCJ credited
claimant’s medical expert because of his experience and familiarity with treating
claimant, and rejected the testimony of employer’s medical expert because the

ex pert only saw the claimant twice).

In this case, the WCJ clearly explained her reasons for finding
Claimant’s expert more credible than Employer’s, including the fact that
Claimant’s expert was his treating physician who had seen Claimant on many
different occasions and Employer’s expert only saw him once. In doing so, the

WCJ reasoned:

Dr. Pagnotto has had the benefit of evaluating and treating the Claimant on multiple occasions since February 19, 2015. I note that both doctors agreed that the Claimant’s avascular necrosis pre

- existed the work injury and was not directly caused by the work injury. However, the Claimant was asymptomatic and unaware11 that he even had avascular necrosis prior to the work injury. Dr. Pagnotto credibly opined that the Claimant suffered an aggravation to his pre

- existing avascular necrosis as a result of the work injury that occurred on December 29, 2014, and that the aggravation of that condition continues. He credibly explained how the MRI findings support his opinion. In fact, he noticed a discrepancy between the reading of th e MRI and that of the radiologist, who originally noted a fracture. Dr. Pagnotto credibly explained that Claimant did not actually have a fracture, in the traditional meaning, but rather a femoral head collapse which supports his opinion that there was ag gravation of the avascular necrosis. Dr. Pagnotto credibly explained that although the mechanism of injury was a relatively low energy event, it was enough to cause the femoral head collapse that was evident on the MRIs, because the Claimant’s hip was alr eady bad due to the underlying avascular necrosis and arthritis.

(R.R. at 236a.)

The WCJ also reasoned that both Dr. Pagnotto and Dr. Abraham
agreed that Claimant suffered from avascular necrosis, but Dr. Abraham’s core

argument

– that the avascular ne crosis was not caused by a work injury

– was irrelevant in this matter as the question was whether the avascular necrosis was
aggravated by the work injury.

Given that the WCJ adequately explained why she accepted
Claimant’s expert as more credible than Employer’s expert, her opinion

, without

further elucidation, allows us to conduct adequate appellate revi ew and

, therefore,

the decision is reasoned.12 For the fo regoing reaso ns, we affirm the Board’s decision.

________________________________ DA N PELLEGRINI, Senior JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

US Airways, Inc., through its insurer : New Hampshire Insurance Company : and Sedgwick Claims Management : Services, :

Petitioners :

:

v. : No. 1476 C.D. 2017

: Worke rs’ Compensation Appeal : Board (Uram), :

Respondent :

O R D E R

AND NOW, this 9 th day of April , 2018 , the Workers’ Compensation
Appeal Board’s order dated September 22 , 2017

, is affirmed.

________________________________ DAN PELLEGR INI, Senior Judge