IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joy Cone Company, :

Petitioner :

:

v. :

:

Workers’ Compensation : Appeal Board (Fluent), : No. 1066 C.D. 2016

Respondent : Submitted: February 10, 2017

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE COSGROVE FILED: A ugust 4, 2017

Joy Cone Company (Employer) seeks review of the Opinion and

Order of the Workers’ Compensation Ap peal Board (Board) dated June 8, 2016,

affirming the Decision and Order of the Workers’ Compensation Judge (WCJ),

which granted disability benefits to Elaine Fluent (Claimant) for the period of

April 1, 2013 through March 14, 2014, with a credit to Employe r for income

earned during that time. Upon review, we affirm.

Claimant w orked for Employer as a packer from January 3, 2005

through October 3, 2014. Claimant has a history of low back issues and a prior

diagnosis of herniated discs at three levels of her lumbar spine. Employer

accommodated Claimant’s restrictions and provided benefits for th os e periods

during which Claimant could not work due to back pain. On April 1, 2013,2

Claimant injured her back at work while un wrapping a pallet of material with

plastic wrap. She reported the injury to Employer

, who sent her for a health

evaluation at Corporate Health Services

. Following an examination on April 2,

2013, Claimant was released to return to work with her pre

- injury restrictions.

Claimant returned to work on April 4, 2013 and continued working until April 19,

2013. Claimant was examined twice more at Corporate H ealth Services

, on April

11, 2013 and April 22, 2013. Both times she was released to work with her pre

injury restrictions by Employer’s physician, Dr. Shaughnessy ( Dr. Shaughnessy)

.

Claimant was subsequently examined by Dr. Shaughnessy in his

priva te office on April 24, 2013

. Thereafter

, Claimant presented Employer a

disability slip indicating that she could only work in a ten

- pound capacity.

Employer did not have work within these restrictions, so Claimant was out of work

from April 25, 2013 unti l November 18, 2013, at which time Claimant returned to

her pre

- injury level of activity. Claimant underwent back surgery in January 2014

and returned to work on March 31, 2014. She continued to perform at her pre

injury level until October 3, 2014

, when she resigned for reasons unrelated to the

work injury.

On August 12, 2015, the Workers’ Compensation Judge (WCJ)

granted Claimant’s Claim petition

, awar ded temporary total and/or partial

disability indemnity benefits beginning April 1, 2013 and concludi ng with a

termination of benefits on March 31, 2014. Employer was directed to pay for

medical benefits attributable to the April 1, 2013 work injury, concluding with the

termination of benefits effective March 15, 2014

. 1 The WCJ granted a credit for

1 The WCJ sets forth three dates for termination of benefits in his order, March 14, 2014,

March 15, 2014, and March 31, 2014. As the WCJ found Claimant recovered from the

workplace injury on March 31, 2014, we presume the latest date is the correct one.3

bene fits paid for the period of April 25, 2013 through November 18, 2013 and for

any income earned during that time frame. Th e Board affirmed the WCJ’s

decision in an Opinion dated June 8, 2016. Th is appeal 2 followed

.

DISCUSSION

Employer presents the follo wing four issues on appeal:

I. Whether the Board erred as a matter of law by affirming

the WCJ’s conclusion that Claimant sustained a disc

herniation at work.

II. Whether the Board erred as a matter of law by affirming

the WCJ’s conclusion that Claimant m et her burden in

presenting credible evidence of disability due to her work

related injury.

III. Whether the Board erred as a matter of law by failing to

acknowledge that Claimant was fully recovered and back

to her pre

- injury baseline condition as of November 17,

2013, when she was released by her doctor and returned to

work.

IV. Whether the Board erred as a matter of law by affirming a

WCJ ’s decision that wa s internally inconsistent in regard

to Claimant’s credibility and the award of benefits.

Since Employer’s first three issues pertain to whether the Board erred

as a matter of law regarding the WCJ’s conclusions, we will address those

together

.

2 Th is Court’s appellate review of an order of the Board is limited to whether the

necessary findings of fact are supported by substantial evidence, whether Board procedures were

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

. Waldameer Park, Inc. v. Workers’ Compensation Appeal Board (Morrison), 819 A.2d 164 (Pa.

Cmwl th. 2003)

.4 Employer argues the WCJ erred in failing to acknowledge medical

reports which document ed Claimant ’s complaints of leg and back pain in 2010.

The medical records

, it is claimed, directly contradicted Claimant’s testimony that

her back condition was not serious prior to the Apr il 1, 2013 injury because

medical records indicated she complain ed of leg pa in and was taking narcotics for

th os e symptoms prior to the workplace injury. Employer insists the finding of the

WCJ that Claimant’s disk herniation was sustained in the April 1, 2013 injury is

not supported by substantial evidence.

Next, Employer no tes conflicts between Claimant ’s testi mony that she

was inactive due to pain in her legs and back after April 1, 2013 and a note in

Claimant’s medical chart from July 9, 2013

, which indicate s Claimant kayak ed 7

- 8

miles per day, ran 3 miles a day, and lift e d her 35

- pound daughter with minimal

pain. Employer cites the decision of the WCJ, in which he acknowledged that the

evidence of record indicated Claimant participated in physically demanding

activities at odds with her contention of total disabilit y from employment.

Finally, Employer argues that Claimant made misrepresentations

essential to her entitlement to benefits. Employer asserts the WCJ felt

uncomfortable denying benefits despite Claimant’s misrepresentations and,

therefore

, the grant of benefits was error. Further, Employer argues the WCJ did

not properly credit Claimant ’s testimony on November 20, 2013 that she was back

to baseline after the April 1, 2013 incident. Had the WCJ done so, Employer

would not be responsible fo r medical care or disability after November 17, 2013

.

On appeal, t he Board found no error in the WCJ ’s decision.

( Reproduced Record ( R.R. ) at 244a.) Claimant testified in person before the WCJ5

and the Board found the WCJ justified in accepting Claimant ’s testimony as

sufficiently credible. Id.

In challenges to the findings of the WCJ, the Board or reviewing court

must simply determine whether, upon consideration of the evidence as a whole, the

referee’s findings have the requisite measure of suppor t in the record

. Bethenergy

Mines, Inc. v. W

orkmen’s C

ompensation A

ppeal B oard (Skirpan)

, 612 A.2d 434,

437 (Pa. 1992). Where the Board has taken no additional evidence, the Board is

required to accept facts found by the WCJ if they are supported by comp etent

evidence. Birmingham Fire Ins. Co. v. Workmen's Compensation Appeal Board

(Kennedy)

, 657 A.2d 96

, 98 (Pa.Cmwlth. 1995). On appeal from a decision of the

Board, this Court must view the evidence in the light most favorable to the

prevailing party bel ow. Id

. Furthermore, in a substantial evidence analysis where

both parties present evidence, it does not matter that evidence of record supports a

factual finding contrary to that of the WCJ, rather, the pertinent inquiry is whether

evidence exists which supports the WCJ’s factual finding. McCabe v. Workers’

Compensation Appeal Board (Department of Revenue)

, 806 A.2d 512

, 515 (Pa.

Cmwlth. 2002).

In suggesting Claimant’s abilities were not as limited as she claimed

during the period following the April 1, 2013 incident through November 18, 2013,

Employer relies to a great degree on a single note contained in Claimant’s medical

records. Made on July 9, 2013 by Robin Molaskey, D.O.

, following an

appointment with Claimant, the note suggests Claimant was kayaking 7

- 8 miles

per day, running 3 miles a day, and lifting her 35

- pound daughter with minimal

pain up until two weeks prior to the date of that appointment. (R.R. at 146a.) In

re sponse to questioning about that note, Claimant testified it was “more like a6

history” and there was “no way” she could have engaged in those activities at that

time. Id. at 199a. Claimant admitted to having gone kayaking with her boyfriend

perhaps once or twice, but alleged she was “basically just sitting there” and she did

not carry the kayak at all. Id. at 198a. Claimant testified that, when instructing her

dance students, she sat on a stool and would demonstrate positions with her arms,

but she neve r actively participated or performed dance moves “other than maybe

tap [her] toe.” Id. at 193a. While Claimant attended an out

- of

- town dance

training, she did not participate, but took notes and watched the other participants

dance. Id. at 192a. Claima nt did not teach dance during the summer of 2013 as

the studio closes in the beginning of June until September. Id. at 30a.

Jon Levy, M.D. ( Dr. Levy) performed an independent medical exam

(IME) of Claimant on June 11, 2014 and testified as follows. At the time of that

exam, Claimant advised Dr. Levy she was released to full duty by her treating

physician, but her employer continued to restrict her to modified duty. (R.R. at

71a.) Following the surgery, Claimant said she was able to walk, run, kayak, a nd

teach dance. (R.R. at 74a.) Dr. Levy described Claimant as “begging [him] to lift

all restrictions ,” and claiming she could do anything she wished. (R.R. at 82a.)

Dr. Levy deemed her fully recovered from the April 1, 2013 injury as of the date of

th e IME. (R.R. at 83a.) He did not believe the surgery in January was related to

the April 1, 2013 injury. (R.R. at 86a.) Dr. Levy did acknowledge, however, a

note from Claimant’s medical records dated May 16, 2013, which referenced a

“recurrent disc her niation, which means you had a herniated disc before and you

herniated it again.” (R.R. at 96a.) He admitted it was “possible” Claimant’s

description of the April 1, 2013 incident was consistent with herniating a disc. Id.7

Dr

. Levy did not contest the necessity of the surgery and stated it “helped her.” Id.

at 97a

.

Dr. Shaughness y submitted a report of the treatment he provided

Claimant both at Corporate Health Services and in his private office. (Claimant’s

Exhibit 3 at 1.) Dr. Shaughness y treated Claimant prior to and following the April

1, 2013 injury. Id. When Dr. Shaughnessy last examined Claimant in June 2013,

he continued the 10

- pound lifting restriction and referred Claimant for surgery. Id.

at 2. Dr. Shaughnessy opined that, within a reasonable degree of medical certainty,

Claimant suffered a lumbar disc herniation and lumbar radiculopathy as a work

injury on April 1, 2013. Id.

At no time did Claimant deny her history of back problems. While

Claimant’s testimony that she had not had pain in her legs prior to the April 1,

2013 injury may conflict with notes contained in her medical records, it is clear the

WCJ considered those conflicts in testimony and the Claimant’s credibility but

granted th e claim petition “given the totality of the evidence of record, inclusive of

the medical evidence.” (R.R. at 225a.) The medical evidence provided by Dr.

Shaughnessy was specifically referenced in the WCJ’s opinion as having been

deemed “sufficiently cred ible.” Id.

Next

, Employer argues the Board erred when it affirmed a WCJ ’s

decision which wa s inconsistent in regard to the Claimant’s credibility and the

award of benefits

. The WCJ stated that the totality of the evidence of record

suggests a denial of benefits would be less equitable than granting benefits. (R.R.

at 225a.) Employer argues that the Workers’ Compensation Act 3 (Act) is not an

equitable statute and it has specific rules and standards that must be met before an

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

, 77 P.S. §§1

- 1041.4, 2501

- 2708.8

employee may be awarded b enefits. 4 Employer claims the WCJ should have found

Claimant had a temporary and transitory aggravation of a long

- standing preexisting

condition, not a work

- related disability.

Essentially reiterating its earlier arguments

, Employer refers to notes

in medical charts that indicate Claimant returned to baseline after the April 1, 2013

work injury and that she also engaged in kayaking and dancing. Employer

contends these activities are contrary to Claimant’s contention of total disability

from employment

. The essence of Employer’s argument here goes toward the

credibility of the witnesses.

The authority of the WCJ over questions of credibility, conflicting

medical evidence

, and evidentiary weight is unquestioned

. Sherrod v. W orkmen’s

Compensation Appeal Board (Thoroughgood, Inc.)

, 666 A.2d 383, 385 (Pa.

Cmwlth. 1995). As the sole authority for determining the weight and credibility of

evidence, the WCJ is free to accept or reject the testimony of any witness

, in whole

or in part

. Lombardo v. W ork ers’ Compensation Appeal Board (Topps Company,

Inc.)

, 698 A.2d 1378

, 1381 (Pa. Cmwlth. 1997).

The WCJ has the ability to credit or discredit relevant evidence as

long as his findings of fact are supported by substantial evidence. The WCJ heard

testimony from Employer and Claimant as well as the Employer’s physician and

reviewed the medical records of Claimant. He looked at the totality of the

evidence of record and made his decision. The WCJ deemed the evidence

sufficient ly credible to support Claimant ’s contention of disability for the time

periods beginning April 1, 2013 through March 14, 2014 and granted the Employer

4 Curiously, Employer asserts that any grant or denial of benef its must be rooted in

substantial competent evidence of record, and not in principles of equity. (Employer’s Brief at

30.)9

a credit for income received during that time. After reviewing the record, we

discern no error in the WCJ’s credibility determinations

.

For these reasons, we affirm the order of the Board.

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

Joy Cone Company, :

Petitioner :

:

v. :

:

Workers’ Compensation : Appeal Board (Fluent), : No. 1066 C.D. 2016

Respondent :

O R D E R

AND NOW, this 4th day of August

, 2017, the June 8, 2016 Order of

the Workers’ Compensation Appeal Board is affirmed.

___________________________ JOSEPH M. COSGROVE, Judge