IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Amazon.com Services LLC, :

American Zurich Insurance Company :

and Sedgwick Claims Management :

Services, :

Petitioners :

:

v. :

:

Engel L. Then Roman (Workers’ :

Compensation Appeal Board), : No. 185 C.D. 2022

Respondent : Submitted: August 5, 2022

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE LORI A. DUMAS, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY 

JUDGE COVEY FILED: December 1, 2022

Amazon.com Services LLC, American Zurich Insurance Company, and 

Sedgwick Claims Management Services (collectively, Employer) petition this Court 

for review of the Workers’ Compensation (WC) Appeal Board’s (Board) February 

8, 2022 order affirming WC Judge Brian Hemak’s (WCJ Hemak) decision that 

denied Employer’s Petition to Terminate Compensation Benefits (Termination 

Petition), granted Engel L. Then Roman’s (Claimant) Petition to Review 

Compensation Benefits (Review Petition), and directed Employer to pay Claimant’s 

counsel fees. Employer presents four issues for this Court’s review: (1) whether 

WCJ Hemak erred by relying on the equivocal and legally incompetent testimony of 

Claimant’s medical expert; (2) whether WCJ Hemak capriciously disregarded

substantial competent evidence in finding that Claimant met her burden of proof to 
2

establish a change to the work-injury description; (3) whether WCJ Hemak failed to 

render a reasoned decision; and (4) whether WCJ Hemak erred by denying 

Employer’s Termination Petition.

1

 After review, this Court affirms.

On August 22, 2019, Claimant sustained an injury to her right leg 

during the course and scope of her employment with Employer. On October 3, 2019,

Employer issued a Notice of Temporary Compensation Payable (NTCP) 

acknowledging Claimant’s injury, which was described as “work[-]related right leg 

pain.” Certified Record (C.R.) Item 10 at 3. Thereafter, the NTCP converted to a 

Notice of Compensation Payable (NCP). On September 29, 2020, Employer filed 

the Termination Petition, alleging therein that Claimant had fully recovered from her 

injury as of September 8, 2020. On October 14, 2020, Claimant filed the Review 

Petition alleging that the injury description was incorrect and that her condition had 

worsened.

On October 19, 2020, WCJ Joseph Grady conducted a hearing. The 

matter was subsequently reassigned to WCJ Hemak who held hearings on January 

22 and February 25, 2021. On June 3, 2021, WCJ Hemak denied Employer’s 

Termination Petition and granted Claimant’s Review Petition, thereby amending 

Claimant’s work-related injury description to include lumbar radiculitis and disc 

herniations at L4-5 and L5-S1. Employer appealed to the Board. On February 8, 

2022, the Board affirmed WCJ Hemak’s decision. Employer appealed to this Court.

2

1 The order of Employer’s issues is consistent with the order Employer argued them in its 

brief, as opposed to the order Employer set forth in its Statement of the Questions Involved.

2

“Our review is limited to determining whether the WCJ’s findings of fact were supported 

by substantial evidence, whether an error of law was committed, or whether constitutional rights 

were violated.” Pierson v. Workers’ Comp. Appeal Bd. (Consol Pa. Coal Co. LLC), 252 A.3d 

1169, 1172 n.3 (Pa. Cmwlth.), appeal denied, 261 A.3d 378 (Pa. 2021).
3

Initially, 

[w]hen, as here, a claimant is seeking to amend an NCP 

pursuant to [S]ection 413(a) of the [WC] Act [(Act)],

[3]

[s]he has the burden to prove that h[er] disability has 

increased and that the original work-related injury caused 

the amending disability. Accordingly, Claimant has the

burden of establishing the causal relationship between 

h[er] work-related [] injury and h[er] [additional injuries] 

by unequivocal medical testimony.

Huddy v. Workers’ Comp. Appeal Bd. (U.S. Air), 905 A.2d 589, 592-93 (Pa. Cmwlth. 

2006) (footnote and citation omitted).

Employer first argues that WCJ Hemak erred by relying on the 

equivocal and legally incompetent testimony of Claimant’s medical expert, who 

could only testify to possible causation for the erroneous findings of disc herniations 

and lumbar radiculitis, or aggravation thereto, without full medical testing, and 

review of medical records and diagnostic studies which could not rule out, inter alia,

underlying systemic causes for Claimant’s complaints. Specifically, Employer 

contends that Claimant’s treating physician Joseph Chun, D.O.’s (Dr. Chun)4

testimony was equivocal and incompetent because Dr. Chun did not have a complete 

understanding of Claimant’s underlying systemic condition and diabetes, which he 

never ruled out. Employer further asserts that Dr. Chun only testified to possible 

causes for the disc bulges or herniations.

Claimant rejoins that Dr. Chun testified that it was his opinion, within 

a reasonable degree of medical certainty, that Claimant sustained an aggravation of 

her preexisting disc degeneration and disc bulges, and that it was also possible that 

the small disc herniations of the bottom two discs L4-5 and L5-S1 were the result of 

the August 22, 2019 trauma and work injury. Claimant further retorts that Dr. Chun 

3 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 772.

4 Dr. Chun is board-certified in pain management and physical medicine and rehabilitation.
4

related that it was his opinion, within a reasonable degree of medical certainty, that 

Claimant’s August 22, 2019 work injury caused the lumbosacral pain with the 

radiating lower extremity pain, i.e., lumbar radiculitis.

Medical testimony will be found unequivocal if the

medical expert, after providing a foundation, testifies that 

in his professional opinion that he believes a certain fact 

or condition exists. Medical testimony is equivocal if, 

after a review of a medical expert’s entire testimony, it is 

found to be merely based on possibilities. Medical

testimony will be deemed incompetent if it is equivocal.

Whether medical testimony is equivocal is a question of 

law subject to plenary review.

PetSmart, Inc. Through Indem. Ins. Co. of N. Am. v. Workers’ Comp. Appeal Bd. 

(Sauter), 219 A.3d 703, 706 (Pa. Cmwlth. 2019) (quoting Campbell v. Workers’

Comp. Appeal Bd. (Pittsburgh Post Gazette), 954 A.2d 726, 730 (Pa. Cmwlth. 2008) 

(citations omitted)).

Here, Dr. Chun testified on direct examination:

Q. Did you come to any and conclusion or diagnosis 

that - - - assuming that the history that she gave you, that 

she incurred an injury on August 22nd, 2019, and also that 

there was no report or history of any minor back problems 

before, were you able - - - were you able to come to a 

medical conclusion or a diagnosis or a tentative diagnosis 

at that point in time as to what her condition was?

A. Yes. My impression was she had a work injury on 

August 22nd, 2019, which caused the lumbosacral pain 

with the radiating lower extremity pain. And my diagnosis 

was lumbar radiculitis related to stenosis, disc bulges[,]

and disc protrusions. And as I mentioned before, she did 

not report any prior history of low back pain or radiating 

lower extremity pain or any imaging studies that would 

show any of the abnormalities that were discussed before. 

Reproduced Record (R.R.) at 39a-40a.
5

Dr. Chun further related:

Q. So what effect did that injury, in your opinion, have on 

that - - - well, let me ask you this. What you saw on the 

[magnetic resonance imaging (]MRI[)] scan, and maybe 

I’m getting ahead because I understand there was a 

subsequent MRI, but what did the MRI scan show you as

far as any pre[]existing pathology and how the work injury 

- - - as to the diagnosis, how she has symptoms?

A. Yes. She had underlying mild degenerative changes, 

so at - - - mild disc degeneration at L3-4 level, L4-5 level, 

L5-S1 level, with some middle disc bulges. That was her 

preexisting MRI, as well as maybe the small disc 

herniations at the bottom two disc levels. There were 

small central and right - - - there was a small central right 

paracentral disc herniation at the L4-5 level and small 

central disc herniation at the L5-S1 level. So at the very 

least, this was an aggravation of her preexisting disc 

degeneration and disc bulges. 

And it’s also possible that at the disc herniations, the 

small disc herniations of the bottom two discs were the 

result of this trauma and work injury and her symptoms 

caused - - - her symptoms are consistent with this. 

Q. Is this opinion within a reasonable degree of medical 

certainty?

A. Yes.

R.R. at 40a-42a (emphasis added). Based on Dr. Chun’s testimony, WCJ Hemak 

opined: “This [WCJ] also specifically finds that Claimant’s work[-]related injury 

should be amended to include lumbar radiculitis and disc herniations at L4-5 and 

L5-S1.” R.R. at 172a.

On cross-examination, Dr. Chun acknowledged:

Q. Now, you had reviewed the same MRI from January 8, 

2020. Is that correct?

A. I reviewed the report of that - - -

Q. Okay.
6

A. - - - particular MRI.

Q. Okay.

And you would agree the MRI showed degenerative 

changes in the lumbar spine[?] Correct?

A. Yes.

Q. And the small focal herniations, those could be 

degenerative-type herniations. Correct?

A. Yes. It could be degenerative or part of it could also 

be traumatic.

Q. And there’s - - - there’s no way for you to tell. Is that 

correct?

A. That is correct, without a prior MRI.

R.R. at 57a-58a (emphasis added).

Dr. Chun also recognized:

Q. [Dr. Samuel Valenti (Dr. Valenti)5] [] states or 

recommends, and I’m quoting this, I would potentially 

consider checking [thyroid stimulating hormone (]TSH[)], 

[creatine phosphokinase (]CPK[)] and perhaps checking 

lab values that would be consistent with potential 

systematic flammatory process as the symptomology 

appears to be significantly diffuse, involving the lower 

extremities more than the upper extremities. She is not 

exhibiting any issues with core weakness. She got up from 

her chair and table without any difficulty. No history of 

falls or significant weakness. Is that correct?

A. Yes.

Q. Was there any checking of her TSH, CPK or the lab

values for a systemic inflammatory process?

A. I do not know. In my opinion, I do not think it’s a 

systemic process.

Q. Has that been ruled out?

5 Dr. Valenti referred Claimant to Dr. Chun. See R.R. at 34a.
7

A. I do not know.

R.R. at 62a-63a (emphasis added). “These selections from the testimony of Dr. 

[Chun] in no measure render, as a matter of law, his testimony incompetent.” Am. 

Contracting Enters., Inc. v. Workers’ Comp. Appeal Bd. (Hurley), 789 A.2d 391, 

396 (Pa. Cmwlth. 2001). 

In Liveringhouse v. Workers’ Compensation Appeal Board (Adecco), 

970 A.2d 508 (Pa. Cmwlth. 2009), this Court addressed whether a claimant’s 

doctor’s (Doctor) testimony was equivocal and incompetent based on his testimony 

that the claimant’s work duties caused or aggravated the claimant’s injury. Therein, 

this Court explained:

[The Doctor’s] testimony viewed as a whole 

unequivocally indicates that [the c]laimant’s carpal tunnel 

syndrome was caused by her job duties. He testified that 

when he belatedly received the actual [electromyography

or] EMG numbers from [another doctor], the result was 

conclusive for severe carpal tunnel on the right and 

moderate to severe carpal tunnel on the left. The WCJ 

chose to emphasize [the Doctor’s] opinion that [the 

c]laimant’s job duties would “likely” cause carpal 

tunnel, but he also opined that even if she had some 

pre[]existing condition that was not symptomatic[,] her 

job duties would aggravate it to the extent that it would 

become symptomatic. A doctor’s testimony should be 

considered as a whole, and a determination of whether 

it is unequivocal should not rest upon a few words 

taken out of context.

Id. at 515 (emphasis added). “In essence, [this Court’s] decision in Liveringhouse

strongly suggests that an expert’s opinion will not be deemed incompetent simply 

because an expert testifies that a claimant’s work [injury] either caused an injury or

aggravated a preexisting injury.” Exec. Offs. v. Workers’ Comp. Appeal Bd.
8

(Rothwell) (Pa. Cmwlth. No. 546 C.D. 2020, filed Apr. 21, 2021), slip op. at 15

(emphasis added).

6

Further, in rejecting a claimant’s argument that an employer’s doctor 

did not have a full understanding of her medical history, this Court held: 

[A] medical expert’s opinion is not rendered incompetent

unless it is based solely on inaccurate information. Am. 

Contracting Enters., Inc. . . . . “[T]he fact that a medical 

expert does not have all of a claimant’s medical records 

goes to the weight given the expert’s testimony, not its 

competency.” Marriott Corp. v. Workers’ Comp. Appeal 

Bd. (Knechtel), 837 A.2d 623, 631 n.10 (Pa. Cmwlth.

2003).

Pryor v. Workers’ Comp. Appeal Bd. (Colin Serv. Sys.), 923 A.2d 1197, 1203 (Pa.

Cmwlth. 2006). “Moreover, it is well established that the opinion of a medical expert 

must be viewed as a whole, and that inaccurate information will not defeat that 

opinion unless it is dependent on those inaccuracies.” Am. Contracting Enters., Inc.,

789 A.2d at 396.

Based on its thorough review, this Court concludes that Dr. Chun’s 

testimony was competent as a matter of law. First, Dr. Chun’s opinion was 

“sufficiently definite and unequivocal to render it admissible.” Cerro Metal Prods.

Co. v. Workers’ Comp. Appeal Bd. (Plewa), 855 A.2d 932, 937 (Pa. Cmwlth. 2004)

(quoting Cramer v. Workmen’s Comp. Appeal Bd. (Uni-Marts), 627 A.2d 231, 233 

(Pa. Cmwlth. 1993)). Dr. Chun testified that Claimant’s work injury caused 

Claimant’s aggravated disc herniations and lumbar radiculitis, or aggravation 

thereto, and that Claimant did not report any prior history of low back pain or 

6 This Court’s unreported memorandum opinions may be cited “for [their] persuasive 

value, but not as a binding precedent.” Section 414(a) of the Commonwealth Court’s Internal 

Operating Procedures, 210 Pa. Code § 69.414(a). Executive Offices is cited for its persuasive 

value.
9

radiating lower extremity pain or any imaging studies that would show any of the 

abnormalities that were discussed. See R.R. at 39a-40a. On cross-examination, Dr. 

Chun did not waiver in his opinion that the work injury caused Claimant’s most 

recent issues with her lower back and legs. Accordingly, Dr. Chun’s testimony was 

sufficiently unequivocal.

Employer next argues that WCJ Hemak capriciously disregarded 

substantial competent evidence in finding that Claimant met her burden of proving,

relative to the Review Petition, a change to her work injury that included lumbar disc 

herniations and lumbar radiculitis, or aggravation thereto, when the substantial 

competent evidence established Claimant’s issues were preexisting and related to 

underlying systemic conditions unrelated to the work injury. Specifically, Employer 

contends that the substantial, competent record evidence established that Claimant’s 

complaints could be due to underlying systemic issues, namely, diabetes, which the 

referring doctor suspected before referring Claimant to Dr. Chun. Employer further 

asserts that the substantial, competent record evidence established that Claimant’s

disc bulges or herniations were preexisting and part of the underlying degenerative 

condition in Claimant’s low back, rather than acute, based on Dr. Chun’s 

concessions. Employer submits that Claimant’s complaints changed with respect to 

her lower extremities, which were clearly affected by the diabetes for which she was 

prescribed a boot and a cane.7 Claimant rejoins that, given the accepted testimony 

and the WCJ’s credibility determinations, which were neither arbitrarily nor 

capriciously made, the substantial, competent evidence did support the WCJ 

granting Claimant’s Review Petition.

7 Claimant testified: “Q. Who prescribed the cane and the boot? Do you know the name 

of the doctor? A. Dr. Rashid, Seleena Rashid [Claimant’s family doctor], in Geisinger.” R.R. at 

155a. However, there was no testimony that diabetes was the reason for said prescription. 
10

A capricious disregard only occurs when the WCJ

deliberately ignores relevant, competent evidence.

Capasso v. Workers’ Comp. Appeal Bd. (RACS Assocs., 

Inc.), 851 A.2d 997, 999 (Pa. Cmwlth. 2004). Capricious 

disregard of evidence “is a deliberate and baseless 

disregard of apparently trustworthy evidence.” Williams 

v. Workers’ Comp. Appeal Bd. (USX Corp.-Fairless 

Works), 862 A.2d 137, 144 (Pa. Cmwlth. 2004). 

Nonetheless, “where there is substantial evidence to 

support [a WCJ’s] factual findings, and those findings in 

turn support the conclusions, it should remain a rare 

instance in which an appellate court would disturb an 

adjudication based upon capricious disregard.” Leon E. 

Wintermyer, Inc. v. Workers’ Comp. Appeal Bd. 

(Marlowe), . . . 812 A.2d 478, 487 n.14 ([Pa.] 2002).

Dep’t of Corr. SCI-Chester v. Faison (Workers’ Comp. Appeal Bd.), 266 A.3d 714, 

736 (Pa. Cmwlth. 2021).

As this Court has often opined, the primary role of the

WCJ is well settled:

The WCJ is the fact finder, and it is solely for the

WCJ . . . to assess credibility and to resolve 

conflicts in the evidence.

Neither the Board nor this Court may reweigh the 

evidence or the WCJ’s credibility determinations.

In addition, it is solely for the WCJ, as the 

fact[]finder, to determine what weight to give to 

any evidence. . . . As such, the WCJ may reject 

the testimony of any witness in whole or in part,

even if that testimony is uncontradicted.

Hawbaker v. Workers’ Comp. Appeal Bd. (Kriner’s 

Quality Roofing Servs. & Uninsured Emp. Guar. Fund), 

159 A.3d 61, 69 (Pa. Cmwlth. 2017) (internal citations, 

quotations, and brackets omitted).

W. Penn Allegheny Health Sys., Inc. v. Workers’ Comp. Appeal Bd. (Cochenour),

251 A.3d 467, 475 (Pa. Cmwlth. 2021) (emphasis added).

Moreover, “substantial evidence” is such relevant 

evidence as a reasonable person might accept as adequate 
11

to support a conclusion. In performing a substantial 

evidence analysis, the evidence must be viewed in a light 

most favorable to the party that prevailed before the WCJ.

In a substantial evidence analysis where both parties 

present evidence, it is immaterial that there is evidence 

in the record supporting a factual finding contrary to 

that made by the WCJ; rather, the pertinent inquiry is 

whether there is any evidence which supports the WCJ’s

factual finding.

Id. (emphasis added; citations omitted).

Here, WCJ Hemak considered and compared the expert medical 

testimony of Employer’s expert, Thomas DiBenedetto, M.D. (Dr. DiBenedetto), and 

Dr. Chun at length and found the testimony of Dr. Chun to be more credible and 

persuasive than the testimony of Dr. DiBenedetto. See R.R. at 172a. WCJ Hemak 

further determined that, to the extent Dr. DiBenedetto’s testimony conflicted with 

Dr. Chun’s testimony, Dr. Chun’s testimony was accepted and Dr. DiBenedetto’s 

testimony was rejected. See id. WCJ Hemak also specifically accepted Claimant’s 

testimony, as it was supported by Dr. Chun’s testimony. See id. Because WCJ 

Hemak accepted Dr. Chun’s and Claimant’s testimony, and rejected Dr. 

DiBenedetto’s testimony, which was within his province to do, WCJ Hemak did not 

capriciously disregard substantial, competent evidence in finding that Claimant met 

her burden of proof under the Review Petition.

Employer next argues that the WCJ failed to render a reasoned decision 

based on substantial, competent record evidence by giving a cursory review of the 

evidence and failing to reconcile clearly contradictory evidence that Claimant 

suffered from preexisting low back issues and underlying systemic 

conditions/disease. 

[A] WCJ’s decision must satisfy the reasoned decision 

requirements of Section 422(a) of the Act, 77 P.S. § 834. 

Section 422(a) [of the Act] provides, in relevant part, that
12

[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.

77 P.S. § 834. To satisfy the reasoned decision 

requirements, a WCJ must 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,] 1047

[(Pa. 2003)]; Dorsey v. Workers’ Comp. Appeal Bd. 

(Crossing Constr. Co.), 893 A.2d 191, 194 (Pa. Cmwlth. 

2006). In the face of conflicting evidence, the WCJ “must 

adequately explain the reasons for rejecting or discrediting 

competent evidence.” 77 P.S. § 834. “Section 422(a) [of 

the Act] does not require the WCJ to discuss all of the 

evidence presented[]” but only “to make the findings 

necessary to resolve the issues raised by the evidence and 

relevant to the decision.” Dorsey, 893 A.2d at 194 n.4. 

“[T]he purpose of a reasoned decision is to spare the 

reviewing court from having to imagine why the WCJ

believed one witness over another[]” and to “permit 

adequate appellate review.” Id. at 194, 196.

Dep’t of Corr. SCI-Chester, 266 A.3d at 736-37.

Here, WCJ Hemak described Claimant’s, see R.R. at 170a-171a, Dr. 

Chun’s, see R.R. at 171a-172a, and Dr. DiBenedetto’s, see R.R. at 171a, testimony 

in detail. Thereafter, WCJ Hemak explained:

This [WCJ] has considered and compared the expert

medical testimony of Dr. DiBenedetto and Dr. Chun at 

length and finds the testimony of Dr. Chun to be more 

credible and persuasive than the testimony of Dr. 

DiBenedetto. Dr. Chun demonstrated that he was more 

familiar with Claimant and Claimant’s condition, having 

benefited from examining Claimant on numerous 

occasions over the course of a year, whereas Dr. 

DiBenedetto examined Claimant on one isolated occasion. 

Furthermore, the testimony of Claimant and Dr. Chun 

were quite consistent and supportive of each other.
13

Although Dr. DiBenedetto felt Claimant had recovered 

from her work-related injury and related her complaints to 

non-work-related problems, the record establishes that 

Claimant did not have any such complaints or difficulties 

until she sustained her work-related injury and has been 

consistently symptomatic since that time. On the other 

hand, Dr. Chun correlated Claimant’s complaints to his 

physical examination and the results of the MRI studies.

To the extent Dr. DiBenedetto’s testimony conflicts with 

Dr. Chun’s testimony, Dr. Chun’s testimony is accepted 

and Dr. DiBenedetto’s testimony is rejected. Furthermore, 

Claimant’s testimony is also specifically accepted, as it 

was supported by Dr. Chun’s testimony.

R.R. at 172a.

WCJ Hemak’s credibility determinations complied with the reasoned

decision requirement because they contained more than just a conclusory statement 

regarding the experts’ credibility. WCJ Hemak explained that Dr. Chun’s testimony 

was more credible and persuasive than that of Dr. DiBenedetto because it was 

consistent with Claimant’s credible testimony, and because, as Claimant’s treating 

physician, Dr. Chun was more familiar with Claimant’s experiences and symptoms. 

WCJ Hemak explained that he rejected Dr. DiBenedetto’s testimony because Dr. 

DiBenedetto examined Claimant on a single occasion. Thus, WCJ Hemak 

articulated an objective basis for the determination. Accordingly, WCJ Hemak 

rendered a reasoned decision.8

8 Employer also argues that WCJ Hemak erred by denying Employer’s Termination 

Petition. Specifically, Employer contends that if this Court finds that the work injury description 

should have remained right leg pain, then the Termination Petition should have been granted based 

on Dr. DiBenedetto’s unequivocal testimony. Because this Court rules that Claimant met her 

burden of proving the amended work injury description, this issue is moot. 
14

For all of the above reasons, the Board’s order is affirmed.

_________________________________

ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Amazon.com Services LLC, :

American Zurich Insurance Company :

and Sedgwick Claims Management :

Services, :

Petitioners :

:

v. :

:

Engel L. Then Roman (Workers’ :

Compensation Appeal Board), : No. 185 C.D. 2022

Respondent :

O R D E R

AND NOW, this 1

st day of December, 2022, the Workers’ 

Compensation Appeal Board’s February 8, 2022 order is affirmed.

_________________________________

ANNE E. COVEY, Judge