IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alvin H. Butz, Inc., :

Petitioner :

:

v. : No. 1682 C.D. 2016

: Submitted: January 27, 2017

Workers' Compensation Appeal :

Board (Wesnak), :

Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE SIMPSON FILED: May 12, 2017

Alvin H. Butz, Inc. (Employer) petitions for review of an order of the 

Workers’ Compensation Appeal Board (Board) that affirmed the order of a

Workers’ Compensation Judge (WCJ). The WCJ’s order denied Employer’s

termination and modification petitions, and granted Drew Wesnak’s (Claimant) 

review petition expanding the work injury description. Employer argues the 

WCJ’s decision is not supported by substantial evidence, and it is not reasoned. 

Employer also asserts the WCJ disregarded its medical evidence supporting 

termination. Upon review, we affirm.

I. Background

In May 2014, while working for Employer as a construction laborer, 

Claimant suffered a work injury. Employer issued a notice of compensation 

payable (NCP) on July 24, 2014, accepting liability, and describing the work injury 
2

as a sprain/strain to the right knee. Claimant’s average weekly wage (AWW) was 

$939.60, corresponding to a compensation rate of $626.40. 

After Employer engaged in self-help and unilaterally reduced the

AWW by $160.40 per week, Claimant filed reinstatement and penalty petitions. 

The WCJ granted the reinstatement petition, and ordered Employer to reinstate 

Claimant’s compensation rate to $626.40 retroactive to when Employer first reduced 

the rate. See WCJ Op., 12/19/14; Reproduced Record (R.R.) 148a (December 

Order). The WCJ also awarded penalties and unreasonable contest fees to Claimant.

At Employer’s request, Claimant attended an independent medical 

examination (IME) with Dr. Eric B. Lebby (Employer’s Expert), a board-certified 

orthopedic surgeon. Employer’s Expert opined Claimant fully recovered from a 

degenerative medial meniscus tear and osteoarthritis of the right knee. 

In October 2014, Claimant filed a review petition seeking an 

amendment of the injury description to include a right knee medial meniscus tear 

and aggravation of osteoarthritis of the right knee. Also, Claimant filed a penalty 

petition based on Employer’s non-compliance with the WCJ’s December Order.

Based upon the IME, Employer filed a termination petition. The same 

day, Employer filed a modification petition, alleging the AWW set forth in the 

NCP was incorrect because it presumed a 40-hour work week. Employer asserted 

the correct compensation rate was $466.00, and it sought a credit for any 

overpayment of compensation benefits. 
3

The WCJ held several hearings on the three petitions.1 In support of 

his review petition, Claimant submitted the deposition testimony of his treating 

physician, Dr. Nicholas Slenker (Treating Physician). Claimant also testified on 

his own behalf. 

Claimant testified his right knee buckled after performing demolition 

work for Employer. He has had constant pain in his right knee while walking or 

climbing stairs ever since. He did not experience such pain before the work injury.

Treating Physician began treating Claimant on a monthly basis in June

2014, with injections and physical therapy, for right knee pain. He observed 

Claimant had tenderness in the medial aspect of the right knee with decreased 

range of motion. WCJ’s Op., 10/8/15, Finding of Fact (F.F.) No. 8(c). He noted 

Claimant reported no history of right knee pain before the injury. Treating 

Physician confirmed that diagnostic studies showed severe degenerative conditions 

in the right knee. He opined the work injury aggravated Claimant’s preexisting 

degenerative conditions in his right knee. After more recent injection therapies 

offered little relief (August and September 2014), Treating Physician 

recommended a total knee replacement as a result of the aggravation. F.F. No. 8(g).

In support of its modification petition,Employer presented the testimony 

of General Superintendent Thomas Grannetino (Superintendent). In support of its 

termination petition, it submitted the deposition testimony of Employer’s Expert. 

 

1 Claimant withdrew his penalty petition during the last hearing; thus, it is not before this 

Court.
4

Superintendent testified as to Claimant’s dates of employment. He 

confirmed Claimant was employed on a full-time basis, with the expectation that 

he would be available to work 40 hours per week. However, Claimant only 

worked for more than 40 hours in one of his nine weeks of employment. 

Employer’s Expert acknowledged he examined Claimant once, when 

he performed an IME in September 2014. He opined Claimant’s right knee pain 

related to pre-existing osteoarthritis, and any restrictions were caused by the 

osteoarthritis, not the work injury. He further opined Claimant fully recovered 

from the work-related sprain of his right knee. 

Ultimately, the WCJ granted Claimant’s review petition, and denied 

Employer’s termination and modification petitions. Because Claimant established 

his arthritis related to the work injury, the WCJ amended the injury description to

include “aggravation of osteoarthritis of the right knee.” Conclusion of Law (C.L.) 

No. 3. The WCJ determined Claimant did not fully recover from his work injury. 

He also concluded Employer expected Claimant to work a 40-hour week. The WCJ

credited both Claimant’s testimony and Superintendent’s testimony. He also found 

Treating Physician’s opinion more persuasive than that of Employer’s Expert. 

Employer appealed to the Board, arguing the WCJ did not issue a 

reasoned decision, and the decision was not supported by substantial, competent

medical evidence. Further, Employer asserted the WCJ capriciously disregarded 

its medical expert’s opinion regarding Claimant’s recovery. Employer also 

challenged the AWW calculation.
5

The Board affirmed the WCJ, concluding the WCJ’s findings were 

supported by substantial evidence. The Board reasoned the WCJ was within his 

prerogative as fact-finder to credit one medical expert over another. The Board 

determined the AWW calculation was appropriate because Claimant was expected 

to work a 40-hour work week. Bd. Op., 9/13/16, at 11.

Employer now petitions for review. After argument, this Court denied 

Employer’s request for a supersedeas, reasoning Employer did not show a strong 

likelihood of success on the merits.

II. Discussion

On appeal,2 Employer contends the Board erred in concluding 

Treating Physician’s opinion was competent evidence supporting expansion of the 

work injury. Employer also asserts the WCJ’s decision was not supported by 

substantial evidence and was not reasoned.

A. Review Petition

To establish a work-related aggravation of a pre-existing condition, a 

claimant must show a causal connection between the work injury and the 

aggravation. Chick–Fil–A v. Workers’ Comp. Appeal Bd. (Mollick), 792 A.2d 

678 (Pa. Cmwlth. 2002). Where there is no obvious connection between work and 

the aggravation, unequivocal medical evidence is required. Id.

 

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

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

rights were violated. Dep’t of Transp. v. Workers’ Comp. Appeal Bd. (Clippinger), 38 A.3d 

1037 (Pa. Cmwlth. 2011).
6

Medical evidence is competent when “[an] [expert’s] opinion is 

sufficiently definite and unequivocal to render it admissible.” Pryor v. Workers’ 

Comp. Appeal Bd. (Colin Serv. Sys.), 923 A.2d 1197, 1203 (Pa. Cmwlth. 2006). 

The competency of medical evidence is a legal conclusion reviewable on appeal. Id.

By contrast, it is solely for the WCJ as fact-finder to assess credibility 

and resolve evidentiary conflicts. Waldameer Park, Inc. v. Workers’ Comp. 

Appeal Bd. (Morrison), 819 A.2d 164 (Pa. Cmwlth. 2003). A WCJ may reject the 

testimony of any witness, in whole or in part, including medical experts. Griffiths 

v. Workers’ Comp. Appeal Bd. (Red Lobster), 760 A.2d 72 (Pa. Cmwlth. 2000). 

A WCJ’s acceptance of one medical expert’s opinion over that of another cannot 

serve as a basis for reversible error. Jenkins v. Workmen’s Comp. Appeal Bd. 

(Woodville State Hosp.), 677 A.2d 1288 (Pa. Cmwlth. 1996). Indeed, a single 

medical expert’s testimony is a reasonable basis upon which a WCJ may base a 

finding of fact despite conflicting evidence. Bethenergy Mines, Inc. v. Workmen’s 

Comp. Appeal Bd. (Skirpan), 572 A.2d 838 (Pa. Cmwlth. 1990), aff’d, 612 A.2d 

434 (Pa. 1992).

Here, Claimant submitted the deposition testimony of Treating 

Physician who opined that the work injury aggravated Claimant’s pre-existing 

osteoarthritis of the knee, which was previously asymptomatic. Specifically, as to 

aggravation, Treating Physician testified:

[Claimant] described to me never having difficulties with the 

knee, being able to perform his job without limitations prior to 

this day. And after this day [that he sustained the work injury], 

he’s had dramatic and significant pains. And while he 

certainly didn’t develop the arthritis after this injury, I believe 
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that the injury – there’s a direct correlation with the 

aggravation of the arthritis that is not relenting.

R.R. at 26a (emphasis added). Treating Physician also opined “the majority of his 

pain is coming from an aggravation of his arthritis. He continues to have persistent 

pain which he denied having prior to this injury, therefore I would say that he most 

certainly aggravated this preexisting condition that day and his pain has not 

subsided since.” R.R. at 27a (emphasis added). Because injection therapy ceased 

reducing his right knee pain, Claimant underwent total knee replacement surgery. 

First, Employer challenges Treating Physician’s testimony as equivocal. 

We determine equivocality by reviewing a medical expert’s testimony in its entirety. 

Lewis v. Workmen’s Comp. Appeal Bd. (Pittsburgh Bd. of Educ.), 498 A.2d 800 

(Pa. 1985). “A medical witness’s use of words such as ‘probably,’ ‘likely,’ and 

‘somewhat’ will not render an opinion equivocal so long as the testimony, read in 

its entirety, is unequivocal and the witness does not recant the opinion or belief first 

expressed.” Bemis v. Workers’ Comp. Appeal Bd. (Perkiomen Grille Corp.), 35

A.3d 69, 72 (Pa. Cmwlth. 2011). Here, throughout his testimony, Treating Physician

used decisive language that was unequivocal. R.R. 27a (“certainly aggravated”). 

Next, Employer contends an expert’s opinion is not sufficient unless it 

clearly conveys the aggravation was a “substantial” factor as opposed to merely a

contributing factor. Chicoine v. Workmen’s Comp. Appeal Bd. (Transit Mgmt. 

Serv.), 633 A.2d 658, 662 (Pa. Cmwlth. 1993). However, an expert is not required to 

use specific phrases provided his testimony permits a valid inference of causation. Pa. 

State Univ. v. Workers’ Comp. Appeal Bd. (Rabin), 53 A.3d 126 (Pa. Cmwlth. 2012). 

Treating Physician’s “direct correlation” language meets the standard. R.R. at 26a.
8

Employer also argues Treating Physician’s opinion is based on an 

assumption that Claimant did not have prior knee pain, such that it is contrary to 

established facts of record. We discern no merit in Employer’s argument.

The cases Employer cites for the proposition that Treating Physician’s 

opinions are incompetent as a matter of law are easily distinguished. See, e.g., 

Newcomer v. Workmen’s Comp. Appeal Bd. (Ward Trucking Corp.), 692 A.2d 

1062 (Pa. 1997); Lewis; Williams v. Workers’ Comp. Appeal Bd. (Hahnemann 

Univ.), 834 A.2d 679 (Pa. Cmwlth. 2003). Significantly, in each case, the medical 

expert’s opinion relies on an assumption. In Newcomer, the expert’s testimony 

was inconsistent with claimant’s medical history and earlier testimony regarding 

the mechanism of injury. In Lewis, the expert presumed a causal connection based 

on temporal proximity between the work incident and claimed injury. In Williams, 

the experts’ opinions were contrary to a WCJ’s finding in an earlier proceeding. 

Thus, the experts disregarded established facts in the case.

Here, Employer identifies no assumption that lacks evidentiary basis, 

or any established facts with which Treating Physician’s opinion conflicts. 

Contrary to Employer’s characterization, Treating Physician’s opinion that 

Claimant’s “current pain is proof of an aggravation that made the degenerative 

findings symptomatic” is not “an assumption based on nothing.” Pet’r’s Br. at 17. 

Rather, the foundation for Treating Physician’s opinion is contained in the record

and consistent with Claimant’s testimony. R.R. at 25a-27a. Employer suggests it 

is an established fact that Claimant experienced pain before the work injury despite 

his definitive testimony that he did not have right knee pain before. R.R. at 176a-77a.
9

A claimant’s testimony of pain, credited by the fact-finder, may be 

sufficient as a matter of law to justify expansion of an injury. Meadow Lakes 

Apartments v. Workers’ Comp. Appeal Bd. (Spencer), 894 A.2d 214 (Pa. Cmwlth. 

2006). The WCJ credited Claimant’s complaints of pain, and his testimony that he 

did not experience knee pain before the work injury. F.F. Nos. 7, 11.

We deem Treating Physician’s opinion as to Claimant’s aggravation, 

connecting his osteoarthritis to the work injury, competent and unequivocal 

medical evidence in support of the WCJ’s findings. Lewis. His testimony 

establishes causation without using the phrase “substantial contributing factor.” 

Rabin. Moreover, the WCJ credited the opinion of Treating Physician, finding him 

more persuasive than Employer’s Expert. F.F. No. 12. That is the prerogative of 

the WCJ as fact-finder. Bethenergy Mines.

Because the expansion of the injury is supported by substantial, 

competent evidence, we affirm the Board’s grant of Claimant’s review petition.

B. Modification

Next, we consider whether the Board erred in affirming the WCJ’s 

denial of Employer’s modification petition seeking credit for an alleged 

overpayment of benefits. Employer contends Claimant’s AWW was calculated 

incorrectly in the NCP. Specifically, it asserts that the WCJ erred in using an 

expectation of earnings calculation premised on a 40-hour work week.
10

Section 309(d.2) of the Workers’ Compensation Act (Act),

3

provides 

that “if the employe has worked less than a complete period of thirteen calendar 

weeks and does not have fixed weekly wages, the [AWW] shall be the hourly wage 

rate multiplied by the number of hours the employee was expected to work per 

week under the terms of employment.” 77 P.S. §582(d.2). Section 309(d.2) covers 

“recently-hired employees for whom there was ... no accurate measure of AWW 

other than taking the existing hourly wage and projecting forward on the basis of 

the hours of work expected under the employment agreement.” Anderson v. 

Workers’ Comp. Appeal Bd. (F.O. Transp.), 111 A.3d 238, 244 (Pa. Cmwlth. 

2015) (italics in original) (quoting Reifsnyder v. Workers’ Comp. Appeal Bd. 

(Dana Corp.), 883 A.2d 537, 547 (Pa. 2005)). The determination of a claimant’s 

hourly wage for calculation of the AWW is a question of fact to be answered by 

the WCJ. Laher Mech. v. Workers’ Comp. Appeal Bd. (Floyd), 933 A.2d 1095 

(Pa. Cmwlth. 2007). 

There is no dispute as to Claimant’s hourly wage, $23.49 per hour. 

See R.R. at 81a; 178a. Employer challenges only the method of calculation, which 

assumed a 40-hour work week.

Claimant had an intermittent work schedule. F.F. No. 7. He had not 

completed a full 13-week quarter with Employer. R.R. at 178a-79a. As a result, 

Section 309(d.2) of the Act, required the WCJ to calculate Claimant’s wages based 

on an expectation of earnings. Anderson. Superintendent confirmed Claimant had 

an expectation of a 40-hour work week. F.F. No. 10; R.R. at 205a. 

 

3 Added by Act of June 24, 1996, P.L. 350.
11

Using the expectation of a 40-hour work week, Claimant is entitled to 

an AWW of $939.60 ($23.49 x 40). Therefore, the AWW rate in the NCP was 

correct, and the Board properly denied Employer’s modification petition.

C. Termination

To succeed in a termination petition, an employer bears the burden of 

proving by substantial evidence that a claimant’s disability ceased, or any 

remaining conditions are unrelated to the work injury. Gillyard v. Workers’ Comp. 

Appeal Bd. (Pa. Liquor Control Bd.), 865 A.2d 991 (Pa. Cmwlth.) (en banc), 

appeal denied, 882 A.2d 1007 (Pa. 2005). An employer may satisfy this burden by 

presenting unequivocal and competent medical evidence of the claimant’s full 

recovery from his work-related injuries. Westmoreland Cnty. v. Workers’ Comp.

Appeal Bd. (Fuller), 942 A.2d 213 (Pa. Cmwlth. 2008).

Employer admits Claimant continues to suffer pain in his right knee; 

however, it maintains his pain is not attributable to the work injury because it is 

caused by his pre-existing osteoarthritis. Thus, Employer does not account for the 

WCJ’s crediting of Treating Physician’s opinion that Claimant’s injury included

aggravation of his osteoarthritis. In fact, Employer’s Expert did not offer a 

medical opinion as to Claimant’s recovery from the aggravation.

The WCJ found Treating Physician more persuasive than Employer’s 

expert, emphasizing his monthly treatment history in contrast to Employer’s 

Expert’s single examination. F.F. Nos. 8, 9, 12. Moreover, the WCJ did not credit 
12

Employer’s Expert’s opinions as to Claimant’s recovery. Indeed, the WCJ stated 

his opinions “defie[d] logic.” F.F. No. 12.

Essentially, Employer asks this Court to reweigh the credibility of the 

medical experts. On appeal, neither the Board nor a reviewing court may reweigh 

a WCJ’s credibility determinations. Furnari v. Workers’ Comp. Appeal Bd. 

(Temple Inland), 90 A.3d 53 (Pa. Cmwlth. 2014). In addition, an adverse 

credibility determination is not a capricious disregard of that testimony. Williams v. 

Workers’ Comp. Appeal Bd. (USX Corp.-Fairless Works), 862 A.2d 137 (Pa. 2004).

The WCJ’s finding that “Claimant has not fully recovered from his 

5/27/2014 work injury,” F.F. No. 22, is amply supported by Treating Physician’s 

testimony, and is consistent with Claimant’s complaints of pain. Lewis; Meadow 

Lakes. Accordingly, Employer did not prove Claimant fully recovered.

D. Reasoned Decision

Section 422(a) of the Act provides, in pertinent part, that “[a]ll parties 

to an adjudicatory proceeding are entitled to a reasoned decision containing 

findings of fact and conclusions of law based upon the evidence as a whole which 

clearly and concisely states and explains the rationale for the decisions so that all 

can determine why and how a particular result was reached,” and that “[t]he 

adjudication shall provide the basis for meaningful appellate review.” Section 

422(a) of the Act requires a WCJ to set forth the rationale for the decision by 

specifying the evidence relied upon and reasons for accepting it. Daniels v. 

Workers’ Comp. Appeal Bd. (Tristate Transp.), 828 A.2d 1043 (Pa. 2003). When 
13

presented with conflicting evidence, the WCJ must adequately explain the reasons 

for rejecting or discrediting competent evidence. Id. at 1047. The WCJ may not 

reject uncontroverted evidence without reason or for an irrational reason, but must 

identify such evidence and adequately explain the reasons for its rejection. Id. 

Employer contends the WCJ’s decision is not reasoned because the 

WCJ credited Treating Physician’s opinion that the work injury caused an 

aggravation of Claimant’s pre-existing arthritis, and so expanded the injury to 

include that aggravation. The WCJ’s decision to credit one expert over another is 

not grounds for holding a decision not reasoned. PEC Contr’g Eng’rs v. Workers’ 

Comp. Appeal Bd. (Hutchison), 717 A.2d 1086, 1088 (Pa. Cmwlth. 1998)

(reasoned decision where WCJ credited claimant’s expert because of treatment 

history and rejecting employer’s expert who saw claimant twice).

Relevant here, the WCJ explained his credibility determination. He 

noted Treating Physician followed Claimant’s progress monthly since June 2014; 

thus, he found “Treating Physician more credible and persuasive than [Employer’s 

Expert].” F.F. No. 12. Moreover, the WCJ offered sufficient explanation to allow 

adequate appellate review by the Board and this Court. 

We also determine the WCJ’s opinion is reasoned because the WCJ’s 

findings are supported by competent, substantial evidence of record. As explained 

above, Treating Physician’s opinion was competent, unequivocal, and sufficiently 

definitive as to causation. Lewis. Further, his opinion was consistent with 

Claimant’s knee pain complaints and symptomology. 
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III. Conclusion

For the foregoing reasons, the Board’s order is affirmed.

 

ROBERT SIMPSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alvin H. Butz, Inc., :

Petitioner :

:

v. : No. 1682 C.D. 2016

:

Workers' Compensation Appeal :

Board (Wesnak), :

Respondent :

O R D E R

AND NOW, this 12th day of May, 2017, the order of the Workers’ 

Compensation Appeal Board is AFFIRMED.

 

ROBERT SIMPSON, Judge