IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Fairmount Long Term Care, :

Petitioner :

:

v. : No. 223 C.D. 2016

: Submitted: July 29, 2016

Workers’ Compensation Appeal :

Board (Boyer), :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE JULIA K. HEARTHWAY, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE BROBSON FILED: November 21, 2016 

Fairmount Long Term Care (Employer) petitions this Court for review 

of an order of the Workers’ Compensation Appeal Board (Board). The Board 

affirmed an order of Workers’ Compensation Judge Stephen Harlen (WCJ), which 

awarded workers’ compensation benefits to Leonard Boyer (Claimant). For the 

reasons discussed below, we affirm. 

Claimant filed a claim petition on August 27, 2013, alleging that he 

suffered an abdominal hernia as a result of a work-related injury that occurred on 

July 8, 2013. Employer filed a response on October 4, 2013, denying that 

Claimant’s injury was work-related. On March 11, 2014, Claimant underwent 

surgery to repair the hernia. He returned to his normal work duties on 

April 28, 2014. Claimant was not employed between July 10, 2013, and 

April 28, 2014. On May 15, 2014, Employer filed a suspension petition which 
2

alleged that Claimant had returned to work at his pre-injury wage, and, 

accordingly, his benefits should be suspended. 

The petitions were assigned to the WCJ who conducted a hearing. 

Claimant testified before the WCJ and introduced the deposition testimony of his 

treating physician, John Bowden, Jr., M.D. Employer submitted affidavits of 

several employees and an independent medical examination (IME) of Claimant, 

performed by Francis Rosato, M.D. 

On March 7, 2014, Claimant testified before the WCJ as follows. At 

the time of the incident, Claimant was employed by Employer as a cook and 

kitchen helper. On July 8, 2013, while attempting to lift a large vat of soup 

weighing approximately 60 pounds, Claimant felt a pop in his stomach. He did not 

report the incident at that time because he had no significant pain as a result. The 

following day, Claimant returned to work, but he experienced more significant 

pain and was unable to lift a 25 pound box. Claimant informed his supervisor 

about the incident and the pain, and the supervisor instructed him to report to the 

kitchen manager. When the kitchen manager arrived later that morning, Claimant 

reported the incident and the kitchen manager instructed Claimant to return home 

for the day. On July 10, 2013, Claimant worked the barbecue grill at a company 

picnic, but he did not perform any heavy lifting. On July 11, 2013, Claimant went 

to his primary care physician and was diagnosed with a hernia. Claimant’s 

primary care physician referred him to a specialist, but he did not schedule the 

appointment until December due to a lack of health insurance. Claimant returned 

to work on July 12, 2013, to inform Employer of his diagnosis and request light 

duty work. Claimant met with human resources, and human resources told him

that light duty work was unavailable at that time and instructed him to fill out 
3

paperwork and take leave pursuant to the Family and Medical Leave 

Act, 29 U.S.C. §§ 2601–2654. Because Claimant did not have insurance at the 

time of his diagnosis, he was unable to immediately undergo surgery to repair the 

hernia. 

Claimant also submitted the deposition testimony of his treating 

physician, Dr. Bowden, who testified that employees in his office examined 

Claimant on August 28, 2013, for complaints of abdominal pain. After reviewing 

the results of that initial examination, Dr. Bowden diagnosed Claimant with an 

acute posttraumatic ventral hernia. Claimant returned for two follow-up 

appointments on October 31, 2013, and December 4, 2013. Dr. Bowden testified 

that his diagnosis of Claimant’s injury was based on a review of his medical 

records and the examination reports of his employees, and that he never directly 

examined Claimant. Dr. Bowden, however, noted that he had not reviewed all of 

Claimant’s prior medical records. Dr. Bowden testified that, in his professional 

opinion and with a reasonable degree of medical certainty, Claimant was disabled 

from July 8, 2013, until April 28, 2014. He testified that, in forming his opinion, 

he relied on Claimant’s statement of how the injury occurred and notes from 

Claimant’s prior physicians, which did not mention the lifting injury. Dr. Bowden 

stated that nothing he was shown caused him to change his opinion that Claimant’s 

injury resulted from lifting a heavy object. Dr. Bowden also testified that he could 

not determine whether Claimant had fully recovered, because he had not examined 

Claimant after the surgery to correct the hernia and did not know that Claimant had 

undergone surgery until the time of the deposition. 

Employer submitted an IME report prepared by Dr. Rosato, dated 

June 20, 2014. Based on his evaluation of Claimant, Dr. Rosato concluded that 
4

Claimant suffered an umbilical hernia caused by lifting the vat of soup. Dr. Rosato 

opined that the injury was causally related to Claimant’s performance of his work 

duties. Dr. Rosato, however, submitted an addendum report after he had reviewed 

the affidavits of Claimant’s supervisor, the kitchen manager, and Employer’s 

Director of Food Services. Dr. Rosato, in his addendum report, noted that his 

opinion was based on an interview and examination of Claimant and that his 

conclusion that Claimant’s injury was work-related remained the same and was 

based on the temporal relationship between Claimant lifting the vat of soup and the 

development of pain. 

Employer submitted a note from Claimant’s initial treating physician,

which described his complaint as “abdominal pain, duration two weeks,” and notes 

from other physicians that had treated Claimant for abdominal pain after the injury. 

(Reproduced Record (R.R.) 119a-121a.) These notes did not refer to Claimant’s 

injury as work-related and did not describe how Claimant sustained the injury. 

Employer also submitted affidavits from Claimant’s supervisor, the kitchen 

manager, and the director. All of the affidavits stated that Claimant never 

informed them that he was injured while performing his work duties. 

The WCJ issued findings of fact and credibility determinations. He 

found Claimant’s testimony to be credible and persuasive and accepted the 

testimony as consistent and accurate evidence that the injury was work-related. He 

further found Dr. Bowden’s and Dr. Rosato’s testimony to be credible and 

persuasive and based on clinical findings. The WCJ, however, did not find the 

affidavits of Claimant’s supervisor, the kitchen manager, and the director to be 

persuasive that Claimant’s injury was not sustained during the course of his work 

duties. 
5

By decision and order circulated on February 13, 2015, the WCJ 

concluded that Claimant had satisfied his burden of proving that he sustained a 

work-related injury in the course of his employment and, as a result, was disabled 

from July 8, 2013, through April 27, 2014. Accordingly, the WCJ granted 

Claimant’s claim petition. 

On March 4, 2015, Employer appealed the WCJ’s decision to the 

Board, arguing that the WCJ’s decision was not supported by substantial evidence. 

Specifically, Employer argued that the WCJ improperly found Claimant’s and 

Dr. Bowden’s testimony credible and improperly ignored the statements of

Claimant’s supervisor, the kitchen manager, and the director. By opinion and 

order dated January 15, 2016, the Board affirmed the WCJ’s decision, concluding

that Dr. Bowden’s testimony was competent and that the WCJ did not err in 

accepting Claimant’s and Dr. Bowden’s testimony as substantial, credible evidence 

that Claimant sustained his injury in the course of his employment. 

On appeal to this Court,1Employer argues that Dr. Bowden’s 

testimony did not constitute competent medical evidence, and, therefore, the 

WCJ’s determination was not supported by substantial evidence. Employer also 

argues that several inconsistencies in the record demonstrate that the WCJ’s 

determination was not supported by substantial evidence.2

 

1

In reviewing an appeal from a decision of an administrative agency, our scope of review 

is limited to determining whether any constitutional rights have been violated, whether 

any errors of law exist, or whether necessary findings of fact were supported by 

substantial evidence. Philadelphia Newspapers, Inc. v. Workmen’s Comp. Appeal Bd. 

(Guaracino), 675 A.2d 1213, 1215 (Pa. 1996). 

2

The Board noted that the WCJ found that Claimant testified that he had to pay one half 

of the cost of the surgery, $1,800.00, up front despite a lack of any such testimony in the record. 

(Footnote continued on next page...)
6

It is well-settled that the WCJ is the sole arbiter of credibility and 

evidentiary weight. Womack v. Workers’ Comp. Appeal Bd. (Sch. Dist. of 

Philadelphia), 83 A.3d 1139, 1154 (Pa. Cmwlth.), appeal denied, 94 A.3d 1011 

(Pa. 2014). In determining whether the WCJ’s findings were supported by 

substantial evidence, we may not reweigh the evidence or the credibility of the 

witness, but must simply determine whether the WCJ’s findings have the requisite 

measure of support in the record as a whole. Elk Mountain Ski Resort, Inc. v. 

Workers’ Comp. Appeal Bd. (Tietz, deceased, and Tietz-Morrison), 114 A.3d 27, 

32 (Pa. Cmwlth. 2015). It is irrelevant whether there is evidence to support a 

contrary finding; if substantial evidence supports the WCJ’s necessary findings, we 

may not disturb those findings on appeal. Williams v. Workers’ Comp. Appeal Bd. 

(USX Corp.-Fairless Works), 862 A.2d 137, 144 (Pa. Cmwlth. 2004).3 

In support of its argument that the WCJ’s determination was not 

supported by substantial evidence, Employer argues that Dr. Bowden’s testimony 

was not competent medical evidence. Employer first argues that Dr. Bowden’s 

 

(continued...)

The Board, however, concluded that this finding had no impact upon the ultimate determination 

that Claimant sustained a work-related injury and, thus, was harmless error. To the extent that 

Employer raises this issue on appeal, we agree with the Board that the error was harmless.

3

“Substantial evidence is such relevant evidence a reasonable person might find 

sufficient to support the WCJ’s findings.” Rosenberg v. Workers’ Comp. Appeal Bd. (Pike 

Cnty.), 942 A.2d 245, 249 n.4 (Pa. Cmwlth. 2008). “In determining whether a finding of fact is 

supported by substantial evidence, this Court must consider the evidence as a whole, view the 

evidence in a light most favorable to the [prevailing party,] and draw all reasonable inferences 

which are deducible from the evidence in favor of the prevailing party.” Verizon Pa. Inc. v. 

Workers’ Comp. Appeal Bd. (Mills), 116 A.3d 1157, 1162 n.4 (Pa. Cmwlth. 2015) (internal 

citations omitted). 
7

testimony was equivocal and, therefore, incompetent, because Dr. Bowden relied 

on Claimant’s description of how the injury occurred in determining that 

Claimant’s injury was work-related. Employer next argues that Dr. Bowden’s 

inability to state that Claimant had fully recovered and his lack of knowledge of 

Claimant’s hernia repair surgery renders his testimony incompetent. Employer 

also argues that Dr. Bowden’s testimony is incompetent because he failed to 

examine all of Claimant’s past medical records. Finally, Employer argues that 

several inconsistencies in the record demonstrate that the WCJ’s conclusion was 

not supported by substantial evidence. 

The question of whether expert medical testimony is unequivocal and, 

thus, competent evidence to support factual determinations is a question of law 

subject to our review. Amandeo v. Workers’ Comp. Appeal Bd. (Conagra Foods),

37 A.3d 72, 80 (Pa. Cmwlth. 2012). In such cases, we review the testimony as a 

whole and may not base our analysis on a few words taken out of context. Id.

“Taking a medical expert’s testimony as a whole, it will be found to be equivocal if 

it is based only upon possibilities, is vague, and leaves doubt.” Kurtz v. Workers’

Comp. Appeal Bd. (Waynesburg College), 794 A.2d 443, 449 (Pa. Cmwlth. 2002). 

“[M]edical testimony is unequivocal if a medical expert testifies, after providing 

foundation for the testimony, that, in his professional opinion, he believes or thinks 

a fact exists.” O’Neill v. Workers’ Comp. Appeal Bd. (News Corp., Ltd.),

29 A.3d 50, 57 (Pa. Cmwlth. 2011). 

Employer, citing Weaver v. Workmen’s Compensation Appeal Board

(Pennsylvania Power Company), 487 A.2d 116 (Pa. Cmwlth. 1985), argues that 

Dr. Bowden’s testimony was not competent evidence, because it does not 

unequivocally establish that Claimant’s injury was causally connected to a
8

work-related incident. Dr. Bowden testified that, in concluding that Claimant’s 

injury was work-related, he relied on Claimant’s assertion that he sustained the 

injury while lifting a vat of soup at work. Employer argues that because 

Dr. Bowden relied on Claimant’s assertion, Dr. Bowden could not unequivocally 

state that the injury was sustained during the course of his employment. Employer 

misinterprets our holding in Weaver. Under Weaver and its progeny, when the 

cause of the injury is not obvious, unequivocal medical evidence, rather than lay 

testimony, is required to establish a causal connection between an injury and an 

alleged cause. Weaver, 487 A.2d at 117-18. In Weaver, the claimant, a welder, 

alleged that the injury occurred as a result of him having struck an arc with his 

welding rod, which caused an intense light flash a few inches in front of his left 

eye. He asserted that at the time of the flash, he experienced severe pain. 

Although he initially sought treatment from an optometrist, who found nothing 

wrong, his eyesight deteriorated over the next week and for several months 

thereafter until he became legally blind in that eye. The workmen’s compensation 

referee considered the claimant’s testimony and the deposition testimony of three 

ophthalmologists, two of whom testified unequivocally that in their opinion the 

welder’s flash was not the cause of the claimant’s injury. The third 

ophthalmologist testified that he observed a scar in the claimant’s eye that was 

consistent with a burn from a welder’s torch, although he also provided other 

testimony that neutralized his observation, including a statement that he did not 

know the cause of the scar. The referee awarded benefits, and the Board reversed. 

On appeal to this Court, we concluded in Weaver that the testimony of 

the third ophthalmologist was equivocal and that the claimant’s own lay testimony 

as to causation was insufficient to establish causation, because “[l]ay testimony is 
9

probative on the issue of physical injury and the cause of that injury only if the 

cause and effect are so immediate, direct and natural to common experience as to 

obviate any need for an expert medical opinion.” Id. at 118. As a result, we 

affirmed the Board, having concluded that the referee’s finding of fact regarding a 

causal connection between the claimant’s disability and his work-related injury 

was not supported by substantial evidence in the record. Weaver is distinguishable 

from the case at hand, because here, unlike the ophthalmologists in Weaver,

Dr. Bowden provided unequivocal testimony as to causation.

Although Dr. Bowden did not personally observe Claimant lift the vat 

of soup, he expressly concluded that, in his professional opinion, Claimant’s injury 

was caused by lifting a heavy object during the course of his employment. While 

an expert witness may base an opinion on facts of which he has 

no personal knowledge, those facts must be supported by evidence 

of record. Newcomer v. Workmen’s Comp. Appeal Bd. (Ward Trucking 

Corp.), 692 A.2d 1062, 1066 (Pa. 1997). In Newcomer, the claimant’s expert 

witness diagnosed the claimant with a new shoulder injury two years after the 

original work-related incident occurred. He based his diagnosis that the shoulder 

injury was work-related solely on the claimant’s story of how the injury occurred,

despite the claimant’s medical records making no mention of a shoulder injury 

since the accident. Our Supreme Court concluded that the expert’s testimony was 

incompetent because it was unsupported by the medical record, and the testimony 

was based on a factual history of the accident which was “patently different from 

that which was the basis for treatment at the time of the injury.” Id. Here, the type 

of injury described in Claimant’s medical history is consistent with his description 

of how the injury occurred. There is no requirement that Claimant’s medical 
10

expert must have actually witnessed how the injury occurred. Instead, the expert’s 

testimony is unequivocal “so long as the expert expresses a belief that, in his or her 

professional opinion a fact exists.” O’Neill, 29 A.3d at 58. It is sufficient that 

Dr. Bowden relied on Claimant’s statement of how the injury occurred and the 

WCJ found Claimant’s testimony to be credible. Accordingly, Dr. Bowden’s 

testimony constitutes unequivocal and competent medical testimony. 

Employer also places great weight on Dr. Bowden’s testimony that he 

had no knowledge of Claimant’s later surgery to repair the hernia and could not 

state that Claimant is capable of returning to work because he had not examined 

Claimant after the surgery. These facts, however, are wholly irrelevant to the 

determination that Claimant’s injury was sustained during the performance of 

work-related duties. 

Employer also argues that Dr. Bowden’s failure to physically examine 

Claimant renders his testimony incompetent. We have long held that a physician’s 

failure to conduct a physical exam affects the credibility of the testimony rather 

than its competency. Smith v. Workmens’ Comp. Appeal Bd. (Donegal Indus., 

Inc.), 569 A.2d 1049, 1050 (Pa. Cmwlth. 1990). Thus, Dr. Bowden’s failure to 

physically examine Claimant does not render his testimony incompetent. 

Similarly, Employer argues that Dr. Bowden’s failure to review all of 

Claimant’s prior medical records renders his testimony incompetent. We have 

previously held that a medical expert’s failure to review all of a claimant’s medical 

history affects only the weight to be accorded his expert opinion, not its 

competency. Marriott Corp. v. Workers’ Comp. Appeal Bd. (Knechtel), 

837 A.2d 623, 631 n.10 (Pa. Cmwlth. 2003). Dr. Bowden’s failure to review all of 

Claimant’s medical records, therefore, does not render his testimony incompetent. 
11

Accordingly, we conclude that the WCJ did not err in relying on 

Dr. Bowden’s testimony as competent and substantial evidence that Claimant 

suffered a work-related injury.

Employer raises several other inconsistencies in the record and argues 

that the WCJ erroneously accepted Claimant’s inconsistent evidence as substantial 

evidence supporting his claim that his injury was work-related. For instance, 

Employer points out that a note from Claimant’s initial treating physician indicated 

“abdominal pain, duration two weeks,” rather than the three days prior to the 

examination when Claimant alleges the injury took place. (R.R. 119a-121a). 

Employer also points out that three physicians’ notes do not make reference to 

Claimant’s incident at work and affidavits from Claimant’s supervisor, the kitchen 

manager, and the director state that they were not informed of the alleged incident. 

Although these inconsistencies may have supported Employer’s position before the 

WCJ, it is well-established that the fact that certain evidence may support a 

different result is not grounds for reversal if the WCJ’s findings are supported by 

substantial evidence. Second Breath v. Workers’ Comp. Appeal Bd. (Gurski), 

799 A.2d 892, 899 (Pa. Cmwlth. 2002). As previously stated, we conclude that 

Dr. Bowden’s testimony is substantial evidence in support of the WCJ’s finding 

that Claimant suffered a work-related injury. The inconsistencies noted by 

Employer, therefore, do not compel a different result on appeal.

As explained above, it is axiomatic that the WCJ is the sole judge of 

the credibility and weight of the evidence, and we will not disturb his decision as 

long as it is based on substantial evidence. Williams, 862 A.2d at 144. 

Dr. Bowden’s testimony constituted substantial competent evidence that Claimant 

suffered a hernia due to lifting a heavy object. Claimant testified that he incurred 
12

the injury lifting a vat of soup in the course of his employment. The WCJ 

expressly stated in his opinion that he observed Claimant’s demeanor at the 

hearing and found his testimony of how the injury occurred to be credible. 

Additionally, we explained that the inconsistencies noted by Employer do not 

compel a different result on appeal simply because they could support a different 

finding than that reached by the WCJ. Thus, we conclude that the WCJ’s findings 

of fact are supported by substantial evidence. 

Accordingly, we affirm the Board’s order.

 

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

Fairmount Long Term Care, :

Petitioner :

:

v. : No. 223 C.D. 2016

:

Workers’ Compensation Appeal :

Board (Boyer), :

Respondent :

O R D E R

AND NOW, this 21st day of November, 2016, the order of the 

Workers’ Compensation Appeal Board is AFFIRMED.

 

 P. KEVIN BROBSON, Judge