IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Cindi Martzen, :

Petitioner :

:

v. :

:

Workers’ Compensation Appeal :

Board (Jo

- Ann Stores), : No. 2043 C.D. 2016

Respondent : Submitted: June 2, 2017

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE COSGROVE FILED: December 27, 2017

Cindi Martzen (Claimant) petitions for review of a December 14, 2016

order of the Workers’ Compensation Appeal Board (Board), which reversed an order

of the Workers’ Compensation Judge (WCJ) granting Claimant’s Reinstatement and

Penalty Petitions and denying the Termination Petition of Jo

- Ann Stores

(Employer), and affirmed the WCJ’s order granting Employer’s Suspension Petition.

Upon review, we vacate in part, affirm in part, and remand for further proceedings.

Claimant worked as a store manager for Employer when she sustained

a work

- related injury after falling from a ladder on January 12, 2011 (2011 injury).

Employer issued a medical

- only Notice of Compensation Payable (NCP),

recognizing the injury as a lumbar strain/sprain possible disk injury. Despite the

medical

- only designation of the NCP, Claimant was paid wage

- loss benefits until2

she returned to work approximately six weeks after she sustained her injury.

Claimant filed a Claim Petition o n August 23, 20 12, alleging a second workplace

injury occurred on July 6, 2012 (2012 injury), when a rack of clothing tipped over

and caused her to fall backwards to the ground. A second Claim Petition was filed

on May 30, 2013, in which Claimant alleged disfigurement r esulted from the 2012

injury. The WCJ denied both petitions, finding Claimant had not suffered an injury

on July 6, 2012; rather, her symptoms and need for treatment stemmed from the 2011

injury. Claimant appealed the decision and the Board affirmed. Th is Court affirmed

the Board. See Martzen v. Workers’ Compensation Appeal Board (Jo

- Ann Stores)

,

(Pa. Cmwlth. No. 436 C.D. 2016, filed August 2, 2016), 2016 WL 4140845.

Employer filed a Suspension Petition regarding the 2011 injury on

August 2, 2013, all eging Claimant returned to work without a loss of wages on

February 28, 2011. Claimant filed a Reinstatement Petition on February 21, 2014,

alleging ongoing disability related to the 2011 injury. Claimant subsequently filed

a Penalty Petition, claiming E mployer violated the Workers’ Compensation Act 1 and

Rules and Regulations of the Department of Labor and Industry (Department).

Employer filed a Termination Petition on March 26, 2015, alleging Claimant had

fully and completely recovered from the 2011 injury. In a decision and order issued

August 24, 2015, the WCJ granted Claimant’s Reinstatement and Penalty Petitions.

The WCJ found the Claimant credibly testified she had not fully recovered from her

2011 injury and found the testimony of Claimant’s medical expert more credible

than that of Employe r. In granting the Penalty Petition, the WCJ found Claimant

established Employer violated the Act by stopping wage loss benefits without

Bureau documents or a judge ’ s order. The WCJ granted Employer’s Suspension

1 Act of June 2, 1915, P.L. 736, as amended

, 77 P.S. §§ 1

– 1041.1, 2501

- 2708.3

Petition for the period of February 29, 20 11 through July 6, 2012, during which time

Claimant returned to work. Concluding Employer failed to establish Claimant had

fully recovered from her 2011 injury, the WCJ denied Employer’s Termination

Petition.

Employer appealed to the Board and filed a Request for Supersedeas.

The Board granted the supersedeas as to the penalty imposed by the WCJ, but denied

it in all other respects. In an opinion and order issued December 14, 2016, the Board

reversed in part and affirmed in part the decision of the W CJ. The Board reversed

the order of the WCJ to the extent it granted Claimant’s Reinstatement and Penalty

Petitions and denied Employer’s Termination Petition. That portion of the WCJ’s

order which granted Employer’s Suspension Petition for the period of February 29,

2011 through July 6, 2012 was affirmed. This appeal 2 followed.

Petitioner raises five issues on appeal:

I. Whether the Board applied the wrong scope and

standard of review?

II. Whether the Board erred in finding the testimony of

Cla imant’s medical expert equivocal?

III. W hether the Board applied the incorrect burden of

proof?

IV. W hether the Board’s decision is directly

inconsistent with a prior Determination?

2 Our review of an order of the Board is limited to a determination of whether the necessary

fi ndings of fact are supported by substantial evidence, whether Board procedures were violated,

whether constitutional rights were violated, or whether an error of law was committed

. Walter v.

Workers’ Compensation Appeal Board (Evangelical Community Hospital)

, 128 A.3d 367, 371 n.5

(Pa. Cmwlth. 2015).4 V. Whether the Board improperly considered evidence

from separate lit igation?

For the sake of judicial economy, we will first address Claimant’s

assertion that the Board improperly determined the testimony of Claimant’s medical

expert, Dr. Joseph Verna (Dr. Verna), was equivocal. In its December 14, 2016

decision, the Bo ard concluded Dr. Verna’s medical testimony was equivocal because

“he never waivered from his belief that Claimant sustained an injury in 2012 which

led to her present condition, a fact which was rejected by the WCJ in prior litigation.”

(Board’s Opinion at 7.)

Medical testimony is equivocal if, after a review of the medical expert’s

testimony, it is found to be merely based on possibilities. Campbell v. Workers’

Compensation Appeal Board ( Pittsburgh Post Gazette)

, 954 A.2d 724, 730 (Pa.

Cmwlth

. 2008). Medical testimony will be deemed incompetent if it is equivocal.

Id.

At a deposition held March 6, 2015, Dr. Verna was questioned

regarding Claimant’s symptoms and the causes thereof. Dr. Verna examined

Claimant on July 9, 2012. (Deposition Testimony of Dr. Verna

, 3/6/15, at 17.) At

that time, Claimant reported to Dr. Verna the details of the 2011 injury, injuries

sustained while gardening in June 2012, and the 2012 injury. Id. at 18. Dr. Verna

initially stated that Claimant’s complaints which presented at her July 9, 2012

examination were caused by the 2012 injury. Id. at 29. Only when Dr. Verna was

asked to base his opinion of causation on the hypothetical that the 2012 inju ry never

occurred did he opine that the lower back symptoms experienced by Claimant were

caused by the 2011 injury. Id. at 31, 33. Later in his testimony, Dr. Verna reiterated

his opinion that the condition of Claimant’s cervical spine was “directly and causally5

related to the [] 2012 injury.” Id. at 37. When asked whether the 2012 injury

occurred, Dr. Verna stated he believed it did. Id. at 45.

When taken as a whole, it is clear Dr. Verna believed the 2012 injury

caused Claimant’s symptoms. His opinion on causation changed, however, if he

assumed the 2012 injury never occurred. Only then was the 2011 injury deemed

relevant. We are compelled to conclude, as the Board did, that Dr. Verna’s

testimony was equivocal and incompetent.

Next, we ad dress Claimant’s argument that the Board applied the

incorrect burden of proof.

In analyzing whether Claimant met her burden of proof for

reinstatement of benefits, the Board looked to Bufford v. Workers ’ Compensation

Appeal Board (North American Telec om)

, 2 A.3d 548 (Pa. 2010). Bufford requires

that a claimant seeking reinstatement of benefits must prove his or her earning power

is “once again adversely affected by his or her disability, and that such disability is

a continuation of that which arose f rom his or her original claim. The claimant need

not re

- prove that the disability resulted from a work

- related injury during his or her

original employment. Once the claimant meets this burden, the burden then shifts

to the party opposing the reinstateme nt petition.” 2 A.3d at 558. The Board

discounted the testimony of Claimant’s medical expert, finding it equivocal, and

reversed the decision of the WCJ, concluding the medical expert’s testimony was

insufficient to meet Claimant’s burden of proof and re but Employer’s evidence of

full recovery.

Claimant was not required, however, to satisfy her burden with expert

medical evidence. Our Supreme Court in Latta v. Workmen’ s Compensation Appeal

Board (Latrobe Die Casting Co.)

, 642 A.2d 1083, 1085 (Pa. 1994 ) held as follows:6 Given the nature of suspension status, which actually

acknowledges a continuing medical injury, and suspends

benefits only because the claimant’s earning power is

currently not affected by the injury, the testimony of a

claimant alone c ould easily satisfy his burden of

establishing that his work

- related injury continues. To

hold otherwise would improperly require a claimant to re

establish that which has already been agreed to and

acknowledged. Therefore, we hold that expert medical

ev idence is not necessary to establish that the prior work

related injury continues. Rather, once a claimant testifies

that his prior work

- related injury continues, the burden

shifts to his employer to prove the contrary. Where an

employer fails to present evidence to the contrary, the

claimant’s testimony, if believed by the referee, is

sufficient to support reinstate ment of the suspended

benefits.

At a June 11, 2014 hearing, Claimant testified regarding her symptoms.

Claimant acknowledged she did not se ek treatment from May 2011 through June

2012, but stated she resumed treatment thereafter because she was “sick of being in

pain.” (Transcript of Testimony (T.T.), 6/11/2014, at 18

- 19. ) Claimant’s pain was

no different than what she’d experienced the year prior. Id. at 20. Treatment was

also sought following the 2012 injury. Id. at 23. Claimant suffered no back or neck

injuries prior to the 2011 injury. Id. at 42. She has not been released to work since

she had surgery in January 2013. Id. at 46. Claimant has not sought treatment since

the surgery because of the cost. Id

. at 48. This testimony was corroborated by Dr.

Verna

, who testified Claimant related she voluntarily discont inued treatment

because she couldn’t afford it and she “felt bad” he wasn’t getting paid. (Deposition

Testimony of Dr. Verna, 3/6/15, at 79

- 80.) Claimant testified she is still in need of

treatment and does not believe she is capable of working. (T.T., 6/11/14, at 49.)7 Claimant testified at a second hearing on May 22, 2015. Claimant

averred she sits in her car while pumping gas because “it’s easier than standing

there.” (T.T., 5/22/15, at 12.) Claimant receives epidural shots to help with her back

pain. Id. at 13. The next treatment option recommended to Claimant involves

“ burn[ing] her nerves. ” Id. at 14. Claimant has not yet scheduled that procedure

because she is “in the process of getting brave enough to do it.” Id. She is capable

of carryi ng an 11

- pound bag of dog food. Id

. at 14

- 15

. However, when Claimant

planted flowers, her husband prepared the pots so she could sit on the stoop and “put

them in.” Id. at 16.

The WCJ explicitly found Claimant’s testimony credible regarding her

sympto ms and continued disability related to the 2011 injury. (WCJ Decision,

8/24/15, at 9.) Per Latta

, Claimant was only required to testify her prior work

- related

injury continued. The burden thereafter shifted to Employer to prove otherwise.

Employer’s ex pert was found by the WCJ to be less credible than Claimant’s because

he saw Claimant on only one occasion and agreed that Claimant reported pain and

tenderness on examination. Id. at 10. The Board made no findings with regard to

Claimant’s credibility a nd acknowledged that the WCJ is the “sole authority for

determining the weight and credibility of evidence.” Lombardo v. Workers ’

Compensation Appeal Board (Topps Co., Inc.)

, 698 A.2d 1378, 1381 (Pa. Cmwlth.

1997). Absent from the Board’s opinion is any analysis of whether the testimony of

Employer’s expert was sufficient to rebut Claimant’s testimony that her work

- related

injury continued.

Consequently, we conclude the Board failed to exercise appropriate

review in light of the burden of proof set fort h in Latta and a remand is required

.

The issue on remand will be limited to whether the WCJ would reach the same8

conclusion on Claimant’s reinstatement petition without consideration of Dr.

Verna’s equivocal medical testimony. Given our dispositions on Claimant’s second

and third issues, we need not address Claimant’s remaining arguments.

For these reasons, the order of the Board is vacated in part and affirmed

in part and this matter is remanded for proceedings consistent with this opinion

.

___________________________ JOSEPH M. COSGROVE, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Cindi Martzen,

Petitioner :

:

v. :

:

Workers’ Compensation Appeal :

Board (Jo

- Ann Stores), : No. 2043 C.D. 2016

Respondent :

O R D E R

AND NOW, this 27 th day of December

, 2017, the December 14, 2016

order of the Workers’ Compensation Appeal Board (Board) is vacated in part and

affirmed in part. We vacate the order of the Board to the extent it reverses the

decision of the W orkers’ Compensation Judge (WCJ) to grant Cindi Martzen ’s

Reinstatement and Penalty Petitions and deny the Termination Petition of Jo

- Ann

Stores (Employer)

. We affirm to the extent the Board’s order affirmed the decision

of the WCJ to grant Employer’s Suspension Petition for the period of February 29,

2011 through July 6, 2012. This matter is remanded for proceedings consistent with

this opinion. Jurisdiction is relin quished.

___________________________ JOSEPH M. COSGROVE, Judge