IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Charles D. Galloway, : : Petitioner :

: v. : No. 1752 C.D. 2016

: Submitted: May 5, 2017 Workers' Compensation Appeal : Board (JRJ Energy Services, LLC), : : Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

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

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE WOJCIK FILED: December 11, 2017

Charles D

. Galloway (Claimant) petitions pro se for review of the August 27, 2016 order of the Workers’ Compensation Appeal Board (Board), which affirmed the decision of a workers’ compensation judge (WCJ) denying Claimant’s claim petition and granting t he termination petition filed by JRJ Energy Servi ces, LLC (Employer). We affirm.

Claimant began working as a pipeline inspector for Employer in May
or June of 2011. Employer issued a notice of temporary compensation payable,
which subsequently converted to a notice of compensation payable, acknowledgi ng

a November 17, 2011 work injury in the nature of a tick bite and resulting Lyme
d isease. On February 8, 2014, Employer filed a termination petition alleging that
Claimant had fully recovered from his work injury as of December 12, 2013.2 During the c ourse of that litigati o n, Claimant filed a claim petition alleging that he suffered a prior work

- related tick bite o n October 4, 2011 , and was disabled by Lyme d isease as a result of both work injuries. The petitions were consolidated for hearings before the WCJ.

Claimant testified that his job duties involved continuous walking through areas that were being cleared of trees. He said he discovered a tick bite in
October 2011 , reported it to Employer, and was treated with antibiotics by Clarence Mast, M.D. Claimant stated that he had a second tick bite in November 2011 for which Dr. Mast again prescribed antibiotics. Claimant testified that he experience d fatigue , but he c on tinued working. He subsequently developed painful burning in
his feet that worsened over time and caused him to stop working in November 2013.

Dr. Mast testified that he has treated approximately 1,000 cases of Lyme disease during his years of family practice. He said that Claimant visited his
office on November 18, 2011, and a nurse practitioner excised a tick from Claimant’s right forearm and prescribed Doxycycline for 21 days. He added that Claimant previously had been treated for tick bites in N ovember 2009 and October 2011 and was prescribed a course of antibiotics on each occasion.

Dr. Mast testified that results of a blood test in December 2011 showed no indication of Lyme disease , and his office notes of December 2011 reflected that
Claima nt had no symptoms of Ly me disease at that time. However, a March 12, 2012 test performed by a different laboratory was positive for Lyme disease , and Dr.
M ast believed that the second test was more accurate. His notes of Claimant’s office
visit on March 29, 2012, again reflected no symptoms of Lyme disease.

Dr. Mast stated that, during an office visit on May 15, 2012, Claimant complained of back pa i n and burning in his feet. Dr. Mast attributed these symptoms3

to Bartonella, a co

- infection related to the tick bites that may not show up in testing but typically starts with tingling and burning in the feet. His diagnoses on that date were Lyme disease, Bartonella, and neuropathy r elated to Bartonella. At a June 2012 visit, Claimant still had significan t burning in his feet, and Dr. Mast prescribed
antibiotics and anti

- inflammatory medications.

Dr. Mast next saw Claimant in March 2013 , at which time Claimant was very achy, his feet were burning , and he was experiencing headaches. Dr. Mast explained that while Claimant may have been doing well during the preceding nine
months , Bartonella and neuropathies are difficult to cure

. Dr. Mast believed that
Claimant was unable to work as of April 2014, because his neuropathy was sever e and he had d eveloped ataxia

. As of the date of his September 23, 2014 deposition, Dr. Mast continued to treat Claimant for joint and muscle pain, fatigue, rib cage inflammation, and neuropathic pain.

Employer submitted the deposition testimony of Michael Silverman
M.D. , who is board certified in infectious diseases and internal medicine

. Dr.
Silverman testified that a diagnosis of Lyme disease can be confirmed by objective
studies such as blood tests

. He stated that if an embedded tick is pulled out within
72 hou rs and the patient is given one dose of Doxycycline, the risk of development of Lyme d isease is next to zero.

Dr. Silverman examined Claimant on December 12, 2013 , and February 13, 2015, and reviewed Claimant’s medical records. He discounted the

test r esults relied up on by Dr. Mast, explaining that the testing in question i s not approved or clinically recommended by the Center s for Disease Control or insurance companies to confirm or rule out Lyme d isease

. He also observed that the 21

- day4

dose of Doxycycline given to Claimant following his Nove mber 2011 tick bite would eradicate Lyme disease 99.9% of the time.

D r . Silverman testified that the development of neuropathy more than

one

- and

- a

- half years after the tick bites was inconsistent with a ca usal relationship.
Based on his examination of Claimant , Dr. Silverman believed that as of February 13, 2015, C laimant was not suffering from Lyme disease or any other tick

- related illness. He explained that Claimant did not exhibit the musculoskeletal s ymptoms or neurological symptoms commonly seen in Lyme disease patients and he has never had a patient with Lyme disease complain of burning and pain in the balls of his feet. Dr. Silverman specifically concluded that the problems Cla imant was experiencin g with his feet were not related to the October or November 2011 tick bites or a Bartonella infection

.

The WCJ set forth the witnesses’ testimony in detail. WCJ’s Findings of Fact, Nos. 5

- 23. Ultimately, the WCJ accepted Dr. Silverman’s testimony and opinions as more credible and persuasive than the testim ony and opinions of Dr.
Mast. Based on t h o s e credibility determinations, the WCJ found that Claimant was fully recovered from Lyme disease as of December 12, 2013. Accordingly, the WCJ granted Em

plo yer’s termination petition and dismissed C l aim a nt’s c l a i m petition. Claimant appealed to the Board, arguing that substantial evidence of record supports a determination that he has not fully recovered from his work injury. Citing the WCJ’s authority over questions of witness credibility and evidentiary weight, 1 the Board affirmed the WCJ’s decision.

1 Sherrod v. Workmen’s Compensation Appeal Board (Thoroughgood, Inc.) , 666 A.2d 383, 385 (Pa. Cmwlth. 1995).5 On appeal to this Court , 2 Claimant again challenges the credibility and accuracy of the expe r t opinion testimony relied upon by the WCJ. Throughout his appellate brief, Claimant compares the testimony of the parties’ medical witnesses, asserts that Dr. Silverman’s opinions are defective, and contends that the WCJ erred on basing his decision on what he characterizes as Dr. Silverman’s inconsistent and
fau lty testimon y.

Initially we note that i n a termination proceeding, the employer bears the burden of proving a claimant has fully recovered from his work

- related injury. Udvari v. Workmen’s Compensation Appeal Board (USAir. Inc.), 705 A.2d 1290, 1293 (P a. 1997). The employer can meet this burden by presenting unequivocal and competent medical evidence of a claimant’s full recovery from a work

- related injury. Koszowski v. Workmen’s Compensation Appeal Board (Greyhound Lines, Inc.), 595 A.2d 697, 699 (Pa . Cmwlth. 1991). In an original claim proceeding, a claimant bears the burden of proving all of the elements necessary to support an award of benefits, including the burden to establish the duration and extent of disability. Second Breath v. Workers’ Com

pensation Appeal Board (Gurski) , 799 A.2d 892, 899 (Pa. Cmwlth. 2002). For each petition, t he party with the burden of proof must meet its burden of production and burden of persuasion in order to prevail. Crenshaw v. Workmen’s Compensation Appeal Board (Hussey Copper), 645 A.2d 957, 963 (Pa. Cmwlth. 1994). In deciding these petitions, t he WCJ credited Dr. Silverman’s testimony . Dr. Silverman stated that the tests on which Dr. Mast relied were of

2 O ur scope of review is limited to determining whether c on stitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are support ed by substantial evidence. City of Philadelphia v. Workers’ Compensation Appeal Board (Brown), 830 A.2d 649, 653 n.2 (Pa. Cmwlth. 2003).6

questionable validity , and h e noted an absence of labor atory tests that might have confirmed diagnoses of Bartonella or other tick

- related infections. He testified that the symptoms Claimant complained of in March 2013 were inconsistent with Lyme
disease and that Claimant had no symptoms related to tick bites at his examination on February 13, 2015

. The WCJ did not credit the contrary testimony of Dr. Mast.

It is a fundamental tenet of workers’ compensation law that t he WCJ has complete authority over questions of credibility, conflicting medical evidence, and evidentiary weight. Sherrod v

. Workmen’s Compensation Appeal Board (Thoroughgood, Inc.) , 666 A.2d 383, 385 (Pa. Cmwlth. 1995). The WCJ is free to accept or reject, in whole or in part, the testimony of any witness. Lombardo v. Workers’ Compensation Appeal Board (Topps Company, Inc.) , 698 A.2d 1378, 1381 (Pa. Cmwlth. 1997) . As the ultimate fact

- finder, the WCJ’s findings are binding on appeal if supported by substantial evidence. Agresta v. Workers’ Compensation Appeal Board (Borough of Mechanicsbu rg), 850 A.2d 890, 893 (Pa. Cmwlth. 2004). 3 Claimant acknowledges that he is “attempting to re

- examine the case facts, and raise alerts to their truthfulness and consistency, so the Court can determine whether the evidence is competent and substantial

– with the ending result being reinstatement of [benefits].” Claimant’s reply brief at 3. However, assessments of credibility and evidentiary weight are beyond our scope of appellate
review ; this Court may not disregard a WCJ’s credibility determination, or substitute its own findings of fact for those made by the WCJ

. RAG (Cyprus) Emer ald Resources, L.P. v. Workers’ Compensation Appeal Board (Hopton) , 912 A.2d 1278 ,

3 “Substantial evidence is such evidence that a reasonable mind might accept as adequate to support a conclusion.” Mrs. Smith’s Frozen Foods Co. v. Workmen’s Compensation Appeal Board (Clouser), 539 A.2d 11, 14 (Pa. Cmwlth. 1988).7

1286 (Pa. 2007). Instead, our review is limited to determining whether the WCJ’s

necessa ry findings of fact are supported by substantial evidence. City of Philadelphia, 830 A.2d at 653 n.2. Having carefully reviewed the record, we conclude that substantial evidence supports the WCJ’s findings . Therefore, this Court is bound by th ose findin gs on appeal.

Accordingly, we affirm.

MICHAEL H. WOJCIK, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Charles D. Galloway, : : Petitioner :

: v. : No. 1752 C.D. 2016

: Workers' Compensation Appeal : Board (JRJ Energy Services, LLC), : : Respondent :

O R D E R

AND NOW, this 11 th day of December , 201 7 , the order of the Workers’ Compensation Appeal Board, dated August 2 5 , 2016, is affirmed.

__________________________________ MICHAEL H. WOJCIK, Judge