IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sarah Schock, :

Petitioner :

:

v. :

: Workers’ Compensation Appeal : Board (Brown’s Super Stores t/a : Shop

- Rite), : No. 478 C.D. 2019

Respondent : Submitted: September 13, 2019

BEFORE: HONORABLE PATRICIA A. McCULLOUGH

, Judge

HONORABLE ANNE E. COVEY, Judge HONORABLE ELLEN CEISLER

, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE COVEY FILED: December 12, 2019

Sarah Schock (Claimant) petitions this Court for r eview of the Workers’
Compensation (WC) Appeal Board’s (Board) March 26, 2019 order affirming the
Workers’ Compensation Judge’s (WCJ) decision after remand granting Brown’s
Super Stores t/a Shop

- Rite’s (Employer) Petition to Terminate Compensation

Benefits (Termination Petition), and denying Claimant litigation costs. Claimant

presents three issues for this Court’s review: (1) whether Claimant was entitled to
wage loss benefits pending remand; (2) whether the Board erred by affirming the

WCJ’s decision gra nting Employer’s Termination Petition; and ( 3 ) w hether the Board

erred by affirming the WCJ’s decision denying Claimant reimbursement for Donald

McCarren, M.D. ’s (Dr. McCarren), and Neil Kahanovitz, M.D. ’s (Dr. Kahanovitz)
depositions

. 1 After review, we a ffirm.

1 Claimant includes an additional issue in her “ Statement of Issues Presented ”: whether the WCJ issued a reasoned decision. See Claimant Br. at 2. Because the reasoned decision issue is2 Background 2
Claimant worked for Employer as a deli clerk. On April 30, 2012,

Claimant slipped and fell at Employer’s premises and injured her lower back. On
August 7, 2012, Employer issued a medical

- only Notice of Compensation Payable
(NCP) descri bing the injury as a lumbar strain. See Reproduced Record (R.R.) at 1.
Claimant filed a claim petition seeking partial disability benefits from April 30, 2012
to July 16, 2012, and total disability benefits thereafter. She also filed a penalty
petition alleging that Employer failed to recognize compensable injuries in its NCP

and failed to pay compensation when due. Employer denied Claimant’s allegations.

O n June 12, 2013, Employer filed the Termination Petition to end Claimant’s WC

benefits effective June 6, 2013, the date on which an independent medical
examination (IME) determin ed Claimant had fully recovered from her work

- related

lumbar strain. Claimant deni ed Employer’s claims

.

A WCJ conducted hearings on December 10, 2012, April 24, April 25,

J uly 31, October 30, and December 18, 2013, and March 17, 2014, at which Claimant
testified and presented the deposition testimony of, inter alia

, Kenneth Izzo, M.D.
(Dr. Izzo) and Andrew Freese, M.D. (Dr. Freese). Employer presented deposition
testimony f

rom, inter alia , Evan Kovalsky, M.D. (Dr. Kovalsky)

, Dr. McCarren and

Dr. Kahanovitz. On June 26, 2014, the WCJ granted Claimant’s claim petition
insofar as she was disabled due to her work injury for four periods of time between
April 30, 2012 until June 6, 2013

. 3 T he WCJ found that Claimant’s disability ceased

subsumed in the issue of whether the Termination Petition was properly granted, those issues will be addressed together herein.

2 Some facts have been adopted from Schock v. Workers’ Compensation Appeal Board (Brown ’ s Super Stores) (Pa. Cmwlth. Nos. 1352, 1366 C.D. 2016, filed August 21, 2017) ( Schock
I )

. 3 Specifically, the WC J awarded Claimant temporary total disability benefits for the following periods during which she was unable to work: July 16

- August 19, 2012, August 28

- October 9, 2012, October 19

- November 26, 2012, and December 4, 2012

- June 6, 2013. The WCJ also granted her partial disability benefits for the following times during which she was able to3

as of June 6, 2013. Accordingly, t he WCJ granted Employer’s Termination Petition

effective June 6, 2013. Both parties appealed to the Board. 4

On June 16, 2015, the Board affirmed the WCJ’s decis ion to the extent it
partially granted Claimant’s claim petition and denied her penalty petition, but

vacated the WCJ’s decision in part and remanded for the WCJ to make an award for
reimbursement of those litigation costs that Claimant incurred relative t o the issues on
which she prevailed.

On December 21, 2015, after remand, the WCJ awarded Claimant
litigation costs attributable to the deposition testimonies of Dr. Freese, Dr. McCarren,
Dr. Kahanovitz and a lay witness because they related to the successf ul parts of
Claimant’s claim petition. Both parties appealed to the Board. O n July 28, 2016, the
Board reversed the WCJ’s litig ation cost award related to Dr. McCarren’s and Dr.

Kahanovitz’s deposition testimony, and affirmed the WCJ’s decision in all ot her
respects. Claimant appealed from the Board’s June 16, 2015 and July 28, 2016

orders to this Court. 5

On August 21, 2017, this Court : vacated the Board’s June 16, 2015 order
granting the Termination Petition and remanded for the WCJ to issue a reasone d

decision more adequately explain ing her credibility determinations; and affirmed the
July 28, 2016 order affirming the cost award for the Dr. Freese and lay witness
depositions , but vacated the July 28, 2016 order insofar as it reversed the cost award

fo r the Dr. McCarren and Dr. Kahanovitz depositions, which were to be reconsidered
based upon a reasoned decision on the Termination Petition. See Schock v. Workers’

work light

- duty for less than her pre

- injury wages: April 30

- July 16, 2012, August 20

- August 27

, 2012, October 10

- October 18, 2012, and November 27

- December 3, 2012.

4 On August 8, 2014, the Board granted supersedeas as to costs incurred for the depositions of Dr. Freese, Dr. McCarren, Dr. Kahanovitz and a lay witness, but denied supersedeas in all other respects. See R.R. at 18

- 20.

5 See Schock I , wherein the appeals were consolidated for this Court’s review.4

Comp

. Appeal Bd

. (Brown ’ s Super Stores) (Pa. Cmwlth. Nos. 1352, 1366 C.D. 2016,
filed Augus t 21, 2017) ( Schock I ).
On February 23, 2018, the WCJ issued her remand decision (Remand
Decision) , therein incorporating her June 26, 2014 findings of fact and making
additional findings as to the credibility of testimony by Dr. Izzo, Dr. Freese, Dr.

Kova lsky, Dr. McCarren and Dr. Kahanovitz. The WCJ again granted the
Termination Petition because Employer met its burden of proving that Claimant was
fully recovered from her work injury as of June 6, 2013, and denied Claimant
litigation costs incurred for D r. McCarren’s and Dr. Kahanovitz’s depositions.
Claimant appealed to the Board which, on March 26, 2019, affirmed the WCJ’s
decision. Claimant appealed to this Court. 6

Discussion

Initially,

[i] n a claim petition , the claimant has the burden of pro ving all elements necessary to support an award, including the

6 “On review[,] this Court must determine whether constitutional rights were violated, errors of law were committed, or necessary findings of fact were supported by substantial competent evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.) , 99 A.3d 598, 601 n.6 (Pa. Cmwlth. 2014).

‘In performing a substantial evidence analysis, this [C]ourt must view the evidence in a lig ht most favorable to the party who prevailed before the factfinder.’ ‘Moreover, we are to draw all reasonable inferences which are deducible from the evidence in support of the factfinder’s decision in favor of that prevailing party.’ It does not

matter if there is evidence in the record supporting findings contrary to those made by the WCJ; the pertinent inquiry is whether the evidence supports the WCJ’s findings.
3D Trucking Co., Inc. v. Workers’ Comp. Appeal Bd. (Fine & Anthony Holdings Int’l) , 921 A.2 d 1281, 1288 (Pa. Cmwlth. 2007) (citations omitted) (quoting Waldameer Park, Inc. v. Workers’ Comp. Appeal Bd. (Morrison)

, 819 A.2d 164, 168 (Pa. Cmwlth. 2003)).5 burden to establish the duration of disability

. [ 7 ] A claimant establishes ongoing disability by the presentation of unequivocal medical evidence. When a claimant fails to present unequivocal testimony establishing ongoing disability after a certain date, benefits are properly terminated as of that d ate.

Wagner v. W

orkers’ Comp. Appeal Bd. (O ’ Malley Wood Prods

. , Inc.) , 805 A.2d 683,

684

- 85 (Pa. Cmwlth. 20 02) (citations omitted)

.

1. Benefits Pending Remand

C laimant contends that this Court’s August 21, 2017 decision vacating
the Board’s decision upholding the WCJ’s grant of Employer’s Termination Petition
entitled her to reinstated wage loss benefits from Jun e 6, 2013 (Termination Petition
effective date) to February 23, 2018 (Remand Decision date). See Claimant Br. at 2,

17

- 18. Employer responds that this claim is groundless because this Court’s August
21, 2017 order does not expressly award Claimant WC ben efits in conjunction
therewith, and Claimant waived the issue by failing to raise it in response to the
WCJ’s February 23, 2018 Remand Decision. See Employer Br. at 55 n.10.

Subject to exceptions not applicable here, Pennsylvania Rule of
Appellate Proced ure (Rule) 1551(a) specifies that “[n]o question shall be heard or
considered by the court which was not raised before the government unit [.] ”
Pa.R.A.P. 1551(a). Moreover, the waiver doctrine, which applies in WC
proceedings, requires parties to raise is sues at the earliest possible opportunity. See
Rox Coal Co. v. Workers’ Comp. Appeal Bd. (Snizaski) , 807 A.2d 906 (Pa. 2002).

7 “ Under [the WC Act (Act), Act of June 2, 1915, P.L. 736, as amended , 77 P.S. §§ 1

- 1041.4, 25 01

- 27 10 ], the term ‘disability’ is synonymous with loss of earning power.” Donahay v. W orkers’ Comp. Appeal Bd. (Skills of Cent. PA, Inc.) , 109 A.3d 787, 792 (Pa. Cmwlth. 2015)

. Therefore, “[i]f the reduction in earnings is not tied to a loss of earning power attributable to the work injury, no disability benefits are due.” Id. at 793.6 Here, Claimant did not raise th e reinstated wage issue to the WCJ during

remand , nor in her March 7, 2018 appeal from the WCJ’s remand decision to the

Board

. Rather, s he raised it for the first time in her April 23, 2019 appeal to this

Court from the Board’s decision after remand , as follows :

The [Board] failed to comprehend that the portion of the original [d]ecision GRANTING t he claim petition was NOT [v]acated, so the awar d of benefits was ongoing as of the date the [t]ermination was [v]acated, and benefits should have been paid retroactive to the date [Employer] was (erroneously) awarded a termination of those benefits.

Petit on for Review at 3.

T he law is well settled that “[r]emand orders are interlocutory and not
appealable except by permission in accordance with [Section 702(b) of the Judicial
Code,] 42 Pa.C.S. § 702(b) and [Rule] 1311 [(relating to interlocutory appeals by
permission)] .” Macaluso v. Workmen’s Comp. Appeal Bd. (Phila. Coll. of
Osteopathic Med.) , 597 A.2d 730, 731 (Pa. Cmwlth. 1991). Because the Schock I
opinion was interlocutory, t he first opportunity for Claimant to raise the reinstatement

issue was in response to the WCJ ’s February 23, 2018 Remand D ecision , but she did

not

. Since Claimant failed to first raise the reinstatement issue below , it is waived.
Claimant’s attempt in her petition for review to bootstrap the issue as a Board error
(i.e., “The [Board] failed to comprehend”) does not salvage the waiver. Petit i on for

Review at 3.
Notwithstanding , Claimant’s argument that this Court’s August 21, 2017

remand order entitled her to reinstated benefits lacks merit. We acknowledge this

Court’s ruli ngs that “ [a] n order of the Board vacating a [WCJ’s] order and remanding
the case for further findings of fact has the effect of reinstating [an NCP] issued

before the [WCJ’s] decision . . . .” Mason v. W orkmen’s Comp. Appeal Bd. (Hilti
Fastening Sys. Cor

p.) , 657 A.2d 1020, 1024 (Pa. Cmwlth. 1995) ; see also Kurtz v.7

Allied Corp. , 561 A.2d 1294, 1298 (Pa. Cmwlth. 1989) (“[T]he effect of an order of

the Board vacating the [WCJ’s] decision and remanding the case to the [WCJ] for
further findings is to reinsta te the [NCP] prior to the [WCJ’s] decision.”).

In the instant matter, however, the Schock I order specifically vacated

the Board’s order and instructed the Board to return the matter to the WCJ to explain
the objective bases for her credibility determina tions underlying her termination

decision. See Schock I , slip op. at 20

- 22, 25, Order. The Schock I Court did not

vacate the WCJ’s order granting Employer’s Termination Petition. Because the
WCJ’s June 26, 2014 order denying wage loss benefits after Jun e 6, 2013 remained in

effect, Claimant would not have been entitled to wage loss benefits pending remand.

2. Termination Petition
Claimant argues that the WCJ’s substantial evidence analysis on remand

failed to address several of her claims. Claimant specif ically asserts that the
Termination Petition should have been denied based upon her credible testimony of
ongoing, worsening pain; and, since the WCJ’s February 23, 2018 credibility
determinations were logically inconsistent with Claimant’s credible testim ony, the

WCJ did not issue a reasoned decision. Employer asserts that Claimant’s argument is
nothing more than “a camouflaged expression of dissatisfaction with the credibility
assessments made by the ultimate factfinder.” Employer Br. at 19.

Preliminar ily, the law is well established t hat “[t]he WCJ is the ultimate
factfinder and has exclusive province over questions of credibility and evidentiary
weight.” Univ. of Pa. v. Workers’ Comp. Appeal Bd. (Hicks) , 16 A.3d 1225, 1229 n.8
(Pa. Cmwlth. 2011). Mo reover , “ [t] o 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.” Westmoreland
Cty. v. Workers’ Comp. Appeal Bd. (Fuller) , 942 A.2d 213, 217 (Pa. Cmwlth. 2008).8

The burden is substantial since disability is presumed to continue unless and until

prove n otherwise. Giant Eagle, Inc. v. Workmen’s Comp. Appeal Bd. (Chambers)

, 635 A.2d 1123 (Pa. Cmwlth. 1993).

In a case where the claimant complains of continued pain, this burden is met when an employer’s medical expert unequivocally testifies that it is his opinion, within a reasonable degree of medical certainty, that the claimant is fully recovered, can return to w ork without restrictions and that there are no objective medical findings which either substantiate the claims of pain or connect them to the work injury. If the WCJ credits this testimony, the termination of benefits is proper.

Udvari v. Workmen’s Comp. Appeal Bd. (USAir, Inc.) , 705 A.2d 1290, 1293 (Pa.
1997) (footnote omitted); see also Elberson v. Workers’ Comp. Appeal Bd. (Elwyn,

Inc.) , 936 A.2d 1195 (Pa. Cmwlth. 2007).

“ The determination of whether a claimant ’ s subjective complaints of
pain are acce pted is a question of fact for the WCJ. ” Udvari , 705 A.2d at 1293

. The

Schock I Court summarized:

Claimant testified in person and by deposition. Claimant stated that she started working for Employer in August 2011 and had no problems with her back befo re that date. [FN2] Her job duties as a deli clerk included slicing deli meat and cheeses and preparing deli products. She lifted up to 50 pounds and stood six to eight hours a day. She earned $8.00 per hour, or $300 [.00] per week before taxes.

Claimant testified that the April 30, 2012, work incident caused pain in her lower back that ‘ [s]hoots down into [her] left leg, into [her] left foot and then [she] also ha[s] pain down the right, in the back until about [her] ankle. ’ Claimant did light

- duty work for Employer from April 30, 2012, until July 16, 2012. Thereafter, she worked as a greeter for four hours a day, from August 20, 2012, through August 27, 2012; from October 10, 2012, until October 18, 2012; and from November 27, 2012, until December 3, 20 12. As a greeter, Claimant sat at the front door and handed out circulars. Claimant has not returned to work9 since December 3, 2012, because the pain in her back and leg ‘ became unbearable. ’

Claimant testified that she was first treated at [Concentra Oc cupational Medicine (]Concentra[)] and then transferred to Rothman Institute, which administered an epidural injection that only worsened her pain. [The] Rothman Institute referred Claimant to Dr. [] Izzo, who did a functional capacity evaluation, followe d by an electromyogram (EMG) on November 26, 2012. In the meantime, on November 16, 2012, Employer issued a Notice of Ability to Return to Work to Claimant, based on an IME done by Dr. [] Kovalsky. On June 11, 2013, Claimant underwent a back surgery perf ormed by Dr. [] Freese; until then, she testified, her pain has ‘ progressively gotten worse. ’

[FN2] Claimant acknowledged sustaining a back injury in 1999, from which she fully recovered.

Schock I , slip op. at 2

- 3 (internal record citations omitted).

I n the June 26, 2014 decision, the WCJ made the following finding of
fact (FOF) regarding Claimant’s testimony:

This [WCJ] had the opportunity to observe Claimant during her testimony and finds her credible based on her demeanor. Her testimony is credible that on April 30, 2012 she slipped and fell and injured her lower back. Her testimony is credible that she attempted to return to light

- duty work on four occasions and last worked on December 3, 2012, at which point she did not continue to work because o f her symptoms . Her testimony is credible that she had a prior back injury for which she received treatment, but she was

no t treating for back pain at the time of her work injury.

WCJ 6/26/14 Dec. at 9 (FOF 15)

. Contrary to Claimant’s argument on appeal , the

WCJ did not find that all of Claimant’s ongoing pain complaints are attributable to
her work injury.

According to the record, Claimant’s medical witness

, physiatrist Dr.

Izzo

, first saw Claimant on October 16, 2012 for purposes of conducting a F uncti onal10

Capacity Evaluation (FCE)

. He reviewed her records and found Claimant’s May 30
and August 6, 2012 MRI studies showed desiccation , bulging and circumferential
annular tearing at L4

- 5 and L5

- S1. On November 26, 2012, Dr. Izzo conducted an

EMG/Nerve Co nduction Study that revealed Claimant also had bilateral lumbar
radiculopathy . Dr. Izzo attributed all of Claimant’s conditions to her April 30, 2012
work injury. Although Dr. Izzo originally opined that Claimant could work in a
sedentary capacity, after Claimant complained of increasing neck and back pain
resulting from her sedentary job , he placed Claimant on disability effective December

3, 2012.

Claimant also presented the testimony of neurosurgeon Dr. Freese, who
examined Claimant in April 2013. Dr. Freese reviewed Claimant’s April 4, 2013

MRI that reflected Claimant’s annular tear and protrusion and desiccation at L4

- 5.

Dr. Freese recalled that a May 14, 20 1 3 discogram revealed pain at L3

- 4 and L5

- S1.
On June 11, 2013, Dr. Freese performed lum bar laminectomies, facetectomies,

discectomies and a fusion at L4

- 5 and L5

- S1. He opined that Claimant’s complaints

and surgery were directly related to her April 30, 2012 work injury

. Dr. Freese
declared that Claimant was incapable of returning to work as of April 5, 2013 due to
discogenic pain combined with radiculopathy.

Employer’s medical witness , orthopedic surgeon Dr. Kovalsky

, conducted an IME of Claimant on October 12, 2012. He testified that Dr. Izzo’s FCE

was not a true FCE because it lack ed consistency and validity testing. Dr. Kovalsky
also stated that the EMG data was insufficient to support a lumbar radiculopathy
diagnosis. He noted that Claimant’s May and August 2012 MRIs revealed no disc

herniation. He observed that Claimant’s May 2, 201 2 examination at Concentra by

Eric Solomon, M.D. (Dr. Solomon) showed no evidence of objective abnormalities
other than thigh and lumbar contusions, and that her August 13, 2012 examination
and testing by Jeremy I. Simon, M.D. (Dr. Simon) at the Roth man Institute revealed11

no abnormalities or radiculopathy. Dr. Kovalsky declared that Claimant presented no

clinical evidence of neur o logic deficit or radiculopathy during his October 12, 2012

examination. He recounted that Claimant attempted to magnify h er symptoms. Dr.
Kovalsky opined that Claimant had not fully recovered from her w ork injury as of
that date, but felt she was capable of performing light

- duty work.

Employer’ s medical witness, orthopedic surgeon Dr. Kahanovitz

, examined Claima nt on June 6, 2013. Dr. Kahanovitz observed that Claimant’s May
and August 2012 MRIs revealed degenerative changes at L4

- 5 and L5

- S1 without
evidence of any nerve root or neurologic compression, and declared that the disc
herniations in the April 2013 MRI did not e volve from the earlier MRIs. He testified
that Claimant demonstrated no evidence of neurologic deficit or lumbar radiculopathy
during his examination, but she did magnify her symptoms. Dr. Kahanovitz declared
that Dr. Freese’s surgery was not related to her work injury. Dr. Kahanovitz
concluded that Claimant sustained a lumbar strain as a result of her April 30, 2012
work injury, but that she fully recovered therefrom as of the date of his examination.

Employer’ s medical witness, neurologist Dr. Mc Carren , who is certified
in performing and interpreting EMG and nerve conduction studies, explained how
they should be performed. He review ed Claimant’s November 26, 2012 EMG/Nerve
Conduction Study and declared it incomplete because it did not demonstrate the
normal activities used when conducting such a test and it resulted in erroneous

conclusions. He also stated that it was u nreliable because there was insufficient data

to warrant a lumbar radiculopathy diagnosis and attendant surgery

.

“The WCJ

. . . is free to accept or reject, in whole or in part, the
testimony of any witness, including medical witnesses.” Griffiths v. Workers’ Comp.
Appeal Bd. (Red Lobster) , 760 A.2d 72, 76 (Pa. Cmwlth. 2000). Accordingly

,12

“Section 422(a) [ of the WC Act (Act) , 77 P.S. § 834, 8 ] does not permit a party to
challenge or second

- guess the WCJ ’ s reasons for credibility determinations. [Thus,

u]n less made arbitrarily or capriciously, a WCJ’s credibility determinations will be
upheld on appeal

. ” 9 P a. Uninsured Emp ’ rs Gua r. Fund v. W orkers’ Comp. Appeal

Bd. (Lyle) , 91 A.3d 297, 303 (Pa. Cmw lth . 2014) (quoting Dorsey v. Workers ’ Comp.
Appeal Bd. (Crossing Constr. Co.)

, 893 A.2d 191, 195 (Pa. Cmwlth. 2006) )

. This
Court has explained:

T o constitute a reasoned decision within the meaning of Section 422(a) [of the Act] , a WCJ ’ s decision must permit adequate appellate review. Where medical experts testify by deposition, a WCJ ’ s resolution of conflicting evidence must be supported by more than a statement that one expert is deeme d more credible than another. Some articulation of the actual objective basis for the

8 Section 422(a) of the Act specifies :

All parties to an adjudicatory proceeding are entitled to a reasoned decision containing findings of fact and conclusions of law ba sed 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. The [ WCJ ] shall specify the evidence upon which the [ WCJ ] relies and st ate the reasons for accepting it in conformity with this section. When faced with conflicting evidence, the [ WCJ ] must adequately explain the reasons for rejecting or discrediting competent evidence. Uncontroverted evidence may not be rejected for

no rea son or for an irrational reason; the [ WCJ ] must identify that evidence and explain adequately the reasons for its rejection. The adjudication shall provide the basis for meaningful appellate review.

77 P.S. § 834.

9 Capricious disregard “ occurs only when the fact

- finder deliberately ignores relevant, competent evidence .” Williams v. Workers’ Comp. Appeal Bd. (USX Corp.

- Fairless Works) , 862 A.2d 137, 145 (Pa. Cmwlth. 2004). Capricious disregard, by definition, does not exist where, as here, the WCJ expres sly considered and rejected the evidence. Williams

.13 credibility determination must be offered for the decision to be a ‘reasoned’ one which facilitates effective appellate review.

There are countless objective factors whi ch may support a WCJ ’ s credibility determinations

. These factors must be identified and articulated.

Verizon Pa

. Inc. v. W

orkers’ Comp. Appeal Bd. (Mills) , 116 A.3d 1157, 1162 n.3 (Pa.
Cmwlth. 2015) (quoting Dorsey

, 893 A.2d at 194

- 95 (citations, internal quotations,
and brackets omitted) )

.

Here, o n remand, the WCJ found Dr. Izzo’s testimony regarding

Claimant’s examination dates and Claimant’s FCE credible. See WCJ Remand Dec.
at 4 (FOF 8). The WCJ did not deem credible Dr. Izzo’s various diagnoses or h is
opinion that Claimant’s ongoing complaints of lumbar radiculopathy are the direct
result of her April 30, 2012 work injury because

Claimant told Dr. Izzo she had recovered from [a] back injury she sustained in 2000; Dr. Izzo reviewed no records referabl e to the 2000 low back injury; Dr. Izzo reviewed no records from Concentra; Dr. Izzo agreed the May and August 2012 MRI studies did not reveal evidence of disc herniation; and upon physical examination, Dr. Izzo found

no evidence of abnormal sensation in t he lower extremities, no evidence of abnormal reflexes in the lower extremities, no evidence of an antalgic gait, and no evidence of atrophy in the lower extremities.

WCJ Remand Dec. at 4 (FOF 8).

The WCJ found credible Dr. Freese’s testimony that he eval uated
Claimant on April 5, 2013, reviewed her April 4, 2013 MRI and performed
Claimant’s June 11, 2013 surgery. The WCJ concluded that Dr. Freese’s testimony
was otherwise not credible. Specifically,

[h] is testimony is not credible that his diagnosis of significant disc injuries to L4

- 5 and L5

- S1 with annular tears and progressive disc protrusions causing a combination of discogenic pain as well as radiculopathy and14 the surgery he performed are related to the work injury. In

so finding, this [WCJ] finds it significant that Dr. Freese only reviewed the April 4, 2013 MRI prior to the surgery and did not review additional medical records until he prepared for his deposition; he reviewed no records relative to Claimant ’ s 2000 back injury; Claimant has a hist ory of smoking and he agreed smoking is associated with disc desiccation; he agreed the 2012 MRIs showed no evidence of disc herniations; he did not identify any abnormal reflexes or evidence of atrophy in the lower extremities upon his physical examinatio n; and he testified that the comprehensive review of the medical records are consistent with the findings he made, but when asked about medical records that documented findings that were inconsistent with his examination, he testified that records document ing inconsistencies would not be relevant.

WCJ Remand Dec. at 4

- 5 (FOF 9).

The WCJ found all of Dr. Kovalsky’s testimony credible, explaining:

His testimony is credible that he did not find evidence of any residual lumbosacral sprain and strain or contus ion, and Claimant was capable of performing a light [

- ] duty position as of the date of his examination. His testimony is credible that Claimant had not fully recovered from the April 30, 2012 work injury as of the time of his examination. In finding the t estimony of Dr. Kovalsky credible, this [WCJ] finds it significant that

. . . his examination was essentially benign and did not reveal any clinical evidence of neurologic deficit or lumbar radiculopathy;

. . . his clinical findings were consistent with th e findings of Dr. Solomon at Concentra and Dr. Simon, both of whom found no evidence of neurologic deficit or lumbar radiculopathy; his clinical findings were consistent with the results of the May and August 2012 lumbar MRI studies which revealed no evid ence of disc herniation; and his diagnosis was supported by the testimony of Dr. McCarren who opined the EMG data is insufficient to support a diagnosis of lumbar radiculopathy.

WCJ Remand Dec. at 5 (FOF 10).

The WCJ also found all of Dr. Kahanovitz’s te stimony credible, stating:15 In finding his testimony credible, this [WCJ] notes that Dr. Kahanovitz

. . . has performed procedures similar to the one that Dr. Freese performed on Claimant; his clinical findings revealed no evidence of neurologic deficit or lumbar radiculopathy; his inability to detect clinical evidence of neurologic deficit and lumbar radiculopathy is consistent with and corroborated by the examination findings reported months earlier by Dr. Kovalsky; his physical examination findings were c onsistent with the clinical findings reported by Dr. Solomon and Dr. Simon, both of whom examined Claimant soon after her work injury; the May and August 2012 lumbar MRIs revealed no evidence of lumbar disc herniation; he found evidence of symptom magnific ation consistent with that identified by Dr. Kovalsky during his October 12, 2012 examination; he credibly explained that Claimant ’ s 2012 MRI findings are consistent with degenerative changes and do not reveal evidence of nerve root involvement; and he cre dibly explained why the findings on the April 2013 MRI study would not be related to the work injury.

WCJ Remand Dec. at 5

- 6 (FOF 11).

In addition, t he WCJ found all of Dr. McCarren’s testimony credible,
adding:

In finding the opinion of Dr. McCarren cre dible, this [WCJ]

notes

. . . he offered a thorough explanation of how and why the [ November 26, 2012] EMG study was incomplete and did not support a diagnosis of lumbar radiculopathy; and his conclusion that the study did not support a diagnosis of radicu lopathy is consistent with the clinical examinations of Dr. Kovalsky and Dr. Kahanovitz, both of whom found no evidence of lumbar radiculopathy.

WCJ Remand Dec. at 6 (FOF 12).

The WCJ further found:

13. The testimony of Dr. Kahanovitz is accepted over th e contrary testimony of Dr. Freese for several reasons. Claimant told Dr. Freese she was pain free prior to the work injury, whereas Dr. Kahanovitz noted that the July 24, 2012 report of [another physician] specified that Claimant had a16 history of chronic low back pain. Dr. Freese testified that Claimant ’ s clinical examinations had been consistent since the injury and were consistent with his examination, yet when confronted with evidence to the contrary he testified that such inconsistencies were irreleva nt. The testimony of Dr. Freese that the condition of Claimant ’ s lumbar spine progressed over time is contradicted by the fact that the August 6, 2012 MRI findings were similar to the May 2012 study. Dr. Freese only reviewed the April 2013 MRI at the tim e of his initial examination of Claimant, and did not review additional medical records until he was preparing for his deposition. The testimony of Dr. Kahanovitz is consistent with the credible testimony of Dr. McCarren that the EMG study includes insuff icient data to support a lumbar radiculopathy.

14. The testimony of Dr. Kovalsky and the testimony of Dr. McCarren is accepted over the testimony of Dr. Izzo regarding the nature of Claimant ’ s injury. Dr. Kovalsky is a board certified orthopedic surgeon w hereas Dr. Izzo is a physiatrist. Dr. Izzo agreed the May and August 2012 MRI studies did not reveal evidence of a disc herniation. Dr. Izzo agreed that the examinations performed by [Claimant’s doctors after t he work accident] found no evidence of nerv e root involvement or lumbar radiculopathy. Dr. Izzo agreed he found no evidence of abnormal sensation, no evidence of abnormal reflexes, no evidence of an antalgic gait, and no atrophy on physical examination. Dr. McCarren ’ s analysis and conclusions rel ative to the EMG study are consistent with Dr. Kovalsky ’ s physical examination findings and conclusions.

WCJ Remand Dec. at 6

- 7 (FOFs 13

- 14).

Neither the Board nor this Court may reweigh the evidence or the WCJ’s
credibility determinations. Sell v. Worke rs’ Comp. Appeal Bd. (LNP Eng’g) , 771
A.2d 1246 (Pa. 2001). On remand, the WCJ summarize d all of the medical testimony
and adequately explain ed her credibility determinations

. B ased upon its review of the
record evidence and, with the WCJ’s role as factf inder in mind, the Board upheld the
WCJ’s findings.17 B ecause this Court may not reweigh the evidence or the WCJ’s
credibility determinations, and must view the evidence in a light most favorable to
Employer

, after a thorough review of the record, we hold that the Board properly

concluded that the WCJ issued a reasoned decision

, upheld the WCJ’s credibility

determinations on remand, and affirmed the WCJ’s grant of Employer’s Termination

Petition

.

3. Litigation Costs

Claimant also argues that the Board erred by affirming the WCJ’s
decision denying Claimant reimbursement for Dr. McCarren’s and Dr. Kahanovitz’s
depositions. She specifically asserts that the issue of litigation cost reimbursement
should be determined based upon all evidence u se d relative to the issue on which she
prevailed, and not just the evidence found credible in relation to that issue.

Section 440(a) of the Act 10 provides , in relevant part :
In any contested case where the insurer has contested liability in whole or in part, including cont ested cases involving petitions to terminate,

. . . the employe

. . . in whose favor the matter at issue has been finally determined in whole or in part shall be awarded, in addition to the award for compensation, a reasonable sum for costs incurred for at torney ’ s fee, witnesses, necessary medical examination, and the value of unreimbursed lost time to attend the proceedings [

. ]

77 P.S. § 996(a). Moreover, Section 422(a) of the Act requires that “all findings of
fact shall be based upon sufficient competen t evidence to justify same.” 77 P.S. §

834. The WCJ cannot disregard competent evidence without a reasonable
explanation or without specifically discrediting it.

10 Added by Section 3 of the Act of February 8, 1972, P.L. 25.18 Here, Employer accepted that Claimant sustained a work

- related lumbar
strain on April 30 , 2012 . In her claim petition, Claimant sought partial disability
benefits from April 30, 2012 to July 16, 2012, and total disability benefits thereafter.
Claimant prevailed on her claim petition for periods that she was disabled due to her
work injury b etween April 30, 2012 and June 6, 2013. Claimant did not succeed in
proving that the neurological deficit or bilateral lumbar radiculopathy her doctors
claimed prevented her from working after June 6, 2013 were related to her April 30,
2012 work injury. Accordingly, t he WCJ denied that Claimant’s work

- related
disability continued after June 6, 2013.

The Schock I Court summarized:

As to Dr. McCarren ’ s deposition, the WCJ found it ‘ did not negate the fact that [Claimant] injured her low back on April 30, 2 012[,] nor did it negate the fact that she was entitled to [WC] benefits for various periods of time in 2012 and 2013. ’ WCJ Decision, 10/21/2015, at 4; [FOF] 8. The WCJ further found ‘ [Dr. Kahanovitz ’ s] testimony confirmed that Claimant sustained a work

- related injury in April of 2012 in the nature of a lumbar strain, thereby supporting Claimant ’ s [c] laim [p] etition in part. ’ WCJ Decision, 10/21/2015, at 5; [FOF] 9.

Schock I , slip op. at 14. The Schock I Court agreed with the Board that Claimant was

not entitled to reimbursement for Dr. McCarren’s deposition costs because that
deposition was not related to the part s of the claim petition upon which Claimant
prevailed. See Schock I . This Court further concurred that Claimant was not entitled

to be reimb ursed for Dr. Kahanovitz’s deposition costs because his testimony
confirmed Claimant’s accepted work injury, which was not contested. See id.
Notably, t h e Schock I Court only vacated the Board’s decision reversing the WCJ’s

reimbursement cost award for t hose depositions because, if the WCJ w as to change19

her decision and den y the Termination Petition on remand, 11 Claimant could be

entitled to such costs.

O n remand, the WCJ again granted the Termination Petition but , this

time, declined to award Claimant c osts related to Dr. McCarren’s and Dr.
Kahanovitz’s depositions , “[d]ue to the granting of the Termination Petition[.]” WCJ

Remand Dec

. at 7. The WCJ deemed credible Dr. McCarren’s and Dr. Kahanovitz’s
testimony that Claimant did not suffer from lumbar r adiculopathy related to her work
injury that resulted in her disability after June 6, 2013. Neither Dr. McCarren nor Dr.

Kahanovitz refuted the claims on which Claimant prevailed

– that Claimant suffered

a work

- related lumbar strain on April 30, 2012 that led to various periods of disability
through June 6, 2013. Accordingly, this Court a dopt s th e Schock I Court’s reasoning

and likewise concludes that the Board properly upheld the WCJ’s conclusion that

Claimant is not entitled to costs related to Dr. McCa rren’s and Dr. Kahanovitz’s
depositions

. Based upon the foregoing, the Board’s order is affirmed.

___________________________ ANNE E. COVEY, Judge

11 The Schock I Court was cognizant that, o n remand to explain the rationale for her credibility determinations, the WCJ was not precluded fr om reversing her original decision. See Reinert v. Workers’ Comp. Appeal Bd. (Stroh Cos.) , 816 A.2d 403 (Pa. Cmwlth. 2003).IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sarah Schock, :

Petitioner :

:

v. :

: Workers’ Compensation Appeal : Board (Brown’s Super Stores t/a : Shop

- Rite), : No. 478 C.D. 2019

Respondent :

O R D E R

AND NOW, this 12 th day of December , 201 9

, the Workers’
Compensation Appeal Board’s March 26, 2019 order is affirmed.

___________________________ ANNE E. COVEY, Judge