IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jennifer Vinci , : : Petitioner :

: v. : No. 545 C.D. 201 5
: Submitted : August 2 1 , 201 5 Workers’ Compensation Appeal : Board ( Tenet/MCP Hospital ) , : : Respondent :

BEFORE: HONOR ABLE BERNARD L. McGINLEY , Judge

HONORABLE PATRICIA A. McCULLOUGH , Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY SENIOR JUDGE COLINS FILED: October 23 , 201 5

Jennifer Vinci (Claimant) petition s for review of an order of the Workers’ Compensation Appeal Board (Board) t h at affirmed the decision and
order of a Workers’ Compensation Judge (WCJ) deny ing p etition s that she filed in
2012 and 2013 to reinstate total disability benefits under the Work ers ’ Compensation Act (the Act) 1 (Reinstatement Petition) and to review benefits to expand the de scrip tion of her work injury (Review Petition)

. W e affirm

.

On January 4, 1999 , Claimant sustained a work

- related injury to her
lower back while employed by Ten et/MCP Hospital (Employer). ( 2014 WCJ
Decision Finding of Fact (F.F.) ¶1 ; WCJ Ex. 2 , 2008 WCJ Decision F.F. ¶2,

1 Act of June 2, 1915, P.L. 736, as amended , 77 P.S. §§ 1

- 1041.4, 2501

- 2708.2

Supplemental Reproduced Record (Supp. R.R.) at 15b .) On March 29, 1999, Employer issued a Notice of Compensation Payable (NCP) for that injury
describ ing it as a “b ack strain. ” ( 2014 WCJ Decision F.F. ¶1; WCJ Ex. 1 NCP , Supp. R.R. at 4b. ) Claimant underwent spinal surgeries at the L4

- 5 level in 2001
and 2006 for this injury. ( 2014 WCJ Decision F.F. ¶¶ 6 a, 8b

- 8c ; Claimant Ex. 2, Vinci Dep. at 6

- 7 , 34

- 35, Reproduced Record (R.R.) at 36

- 37, 64

- 65; Claimant Ex. 3, Balderston Dep. at 9 , 16

- 17 , R.R. at 91 , 98

- 99 ; 12/18/13 Hearing Transcript (H.T.) at 9, R.R. at 271 .)

Employer in July 2007 filed a petition to modify Claimant’s compensation benefits from total disability to partial disability based on a March 22, 2007 impairment rating evaluation (IRE) finding that Claimant had reached maximum medical improvement (MMI) and had a whole body impairment of 13%. ( 2014 WCJ Decision F.F. ¶ ¶ 2

- 3; WCJ Ex. 2 , 2008 WCJ Decision at 1 & F.F. ¶ ¶ 4 , 8 , Supp. R.R. at 15b

- 16b; WCJ Ex. 1 IRE Report, Supp. R.R. at 5b

- 12b

. ) Claimant filed a petition to review compensation benefits in August 2007 seeking to expand the description of her work injury to include lumbar disc herniation s at L4

- 5 and
L5

- S1, severe post

- operative degenerative changes in the lumbar spine, and psychological injuries. ( 2014 WCJ Decision F.F. ¶4; WCJ Ex. 2 , 2008 WCJ
Decision F.F. ¶6, Supp. R.R. at 16b .) On August 13, 2008 , the WCJ to wh om these 200 7 petitions were assigned granted Employer’s petition and modified Claimant’s benefits to partial disability effective March 22, 2007, and denied Claimant’s petition on the ground that Claimant had failed to show that the
additional injuries result ed f rom her 1999 work incident. ( 2014 WCJ Decision F.F. ¶¶3

- 4; WCJ Ex. 2 , 2008 WCJ Decision Conclusions of Law (C.L.) ¶¶2

- 3 & Order, Supp. R.R. at 19b .) Claimant appealed the WCJ’s Decision and Order on the 20073

petitions, and both the Board and this Court affir med. ( 2014 WCJ Decision F.F. ¶5; WCJ Ex. 1 Vinc i v. Workers’ Compensation Appeal Board ( Tenet/MCP Hospital ) , (Pa. Cmwlth. , No. 1688 C.D. 2009, filed Apr il 21, 2010) , Supp. R.R. at 20b

- 28b .) In May 2012, Claimant underwent surgery for a L5

- S1 disc
herni ation. ( 2014 WCJ Decision F.F. ¶¶8d , 12b ; Claimant Ex. 3, Balderston Dep.

at 11

- 12 & Balderston Dep. Ex. 2, R.R. at 93

- 94, 163

- 164 .) On November 27 , 2012 , Claimant filed the Reinstatement Petition, request ing modification of her benefits from partial to total disability as of the date of her 2012 surgery . ( 2014
WCJ Decision at 1 of 8 .) On July 17, 2013, Claimant filed the Review Petition, seeking to expand the description of her work injury to include the L5

- S1 disc
herniation for which she underwent th e 2012 surgery. ( Id

. ) The Reinstatement Petition and Review Petition were consolidated for hearing and decision. ( Id. )

The WCJ held an evidentiary hearing at which Claimant testified and also received testimony by trial deposition of three witnesses: C laimant, Dr. Balderston, the orthopedic surgeon who performed Claimant’s 2001, 2006 and 2012 spinal surgeries, and Dr. Kahanovitz, an orthopedic surgeon who examined Claimant on behalf of Employer. Dr. Balderston opined that the 2012 L5

- S1 disc
herniation and May 2012 surgery w ere caused by Claimant’s 1999 work accident

. (Claimant Ex. 3, Balderston Dep. at 11

- 12 , R.R. at 93

- 94.) Dr. Kahanovitz opined
that Claimant’s 2012 L5

- S1 disc herniation and surgery w ere unrelated to Claimant’s 1999 work injury and unrelated to her 2001 and 2006 surgeries for that injury

. (Employer Ex. 1 , Kahanovitz Dep. at 15

- 17, 20, R.R. at 181

- 183 , 186 .)

O n April 24, 2014 , the WCJ issued a decision denying Claimant’s
Reinstatement Petition and Review Petition

. T he WCJ found t he testimony of Dr.4

Kahanovitz more credible and persuasive than causation testimony of Dr.
Balderston , conclud ing that Dr. Kahanovitz ’s opinions that Claimant’s 2012 L5

- S1 disc herniation and surgery were not caused by her 1999 work injury were supported by Claimant’s MRI records and that Dr. Balderston’s testimony was less
consistent with those medical records . ( 2014 WCJ Decision F.F. ¶ 1 2 b .) The WCJ accordingly h e l d that Claimant had not met her burden of pro of on either petition
because she failed to s how that the medical condition and surgery on which both
p etition s were predicated were work

- related

. ( Id. F.F. ¶ ¶12c

- 12d, C.L. ¶3.) T he
WCJ further concluded that the Reinstatement Petition must be denied for the
additional reason that Claimant was requ ired to show that she had an impairment rating of 50% or higher to obtain reinstatement of total disability status and did not
introduce any such evidence

. ( Id. F.F. ¶12c, C.L. ¶ 2 .) Claimant appealed , and on March 10, 2015 , the Board affirmed

. This appe al followed

. 2

Claimant argues that the WCJ erred in not finding that her 2012 L5

- S1 disc herniation and surgery were work

- related

. Th i s contention i s without merit.
The evidence on th e issue of causation was conflicting : Claimant presented unequivocal medical testimony from Dr. Balderston relating the 2012 L5

- S1 disc
herniation to the work in jury and Employer presented unequivocal medical testimony from Dr. Kahanovitz that there was no causal relationship between the
2012 L5

- S1 disc herniation and the 1 999 work injury or its treatment. The WCJ

2 Our review is limited to determining whether an error of law was committed , whether the WCJ’s necessary findings of fact are supported by substantial evidence or whether Board procedures or constitutional rights were violated

. Anderson v. Workers’ Compensation Appeal Board (Penn Center for Rehab) , 15 A.3d 944, 94 7 n.1 (Pa. Cmwlth. 2010)

.5

found Dr. Kahanovitz’s testimony credible and rejected Dr. Balderston’s testimony on causation as less credible and less persuasive

.

Determination of credibility of witnesses is the prerogative of the WCJ, not the role of the Board or this Court. Furnari v. Workers’ Compensation Appeal Board ( Temple Inland ) , 90 A.3d 53, 59

- 60, 70 (Pa. Cmwlth. 2014 ) ; Gann
v. Workers ’ Compensation Appeal Board ( MBS Management/Wellington East Development

) , 792 A.2d 701 , 704 (Pa. C mwlth. 200 2 )

. T he WCJ has exclusive province over questions of credibility and evidentiary weight, and may accept or reject the testimony of any witness , including medical experts, in whole or in part.
Furnari , 90 A.3d at 59, 70; Anderson v. Workers’ Com pensation Appeal Board (Penn Center for Rehab) , 15 A. 3d 944, 949 (Pa. Cmwlth. 2010) ; Rockwell
Inter national v. Workers ’ Compensation Appeal Board ( Sutton ) , 736 A.2d 742 , 743 n.1 ( Pa. Cmwlth. 1999 )

.

The WCJ ’s credibility determination s here w ere support ed by the
record and well within her discretion

. 3 The fact that Dr. Balderston was Claimant’s treating physician does not change this . While a WCJ may give greater credence to a treating physician’s testimony, that is merely a factor that the WCJ may wei gh in assessing credibility; the WCJ is not required to find a treating

3 Contrary to Claimant’s assertions, Dr. Kahanovitz fully exp lained that Claimant’s 2012 L5

- S1 disc herniation was unconnected to earlier MRI findings of L5

- S1 abnormalities and that it was not caused by stress from Claimant’s L4

- 5 surgery

. Dr. Kahanovitz testified that the 2012 L5

- S1 disc herniation was an acute i njury , not a chronic or progressive condition, and that it was a distinct and different condition from the minor L5

- S1 abnormalities on Claimant’s MRIs prior to 2012. (Employer Ex. 1 , Kahanovitz Dep. at 15

- 16, 19

- 24, 39

- 43, R.R. at 181

- 182, 185

- 190, 20 5

- 2 09.) Dr. Kahanovitz further testified that , while L4

- 5 fusion surgery i s capable of increasing stress at the L5

- S1 level , that stress could only cause slowly progressive, degenerative changes, not the type of acute L5

- S1 herniation suffered by Claimant. ( Id. at 18

- 20, 37

- 43, R.R. at 184

- 186, 203

- 209.)6

physician credible or more credible than a non

- treating medical expert. Anderson , 15 A. 3d at 94 5, 948

- 49 ; Williams v. Workmen’s Compensation Appeal Board (Montgomery Ward) , 562 A.2d 437 , 441 n.6 ( Pa. Cmwlth. 1989 )

. As this Court aptly stated in Anderson , “ Claimant essentially asks this Court to reweigh the
evidence. This Court will not do so. ” 15 A. 3d at 949.

It was Claimant’s burden on both the Reinstatement Petition and
Revie w Petition to prove that her 2012 L5

- S1 disc herniation was caused by her 1999 work injury. Anderson , 15 A. 3d at 94 8 ; Pryor v. Workers ’ Compensation Appeal Board ( Colin Service Systems ) , 9 23 A.2d 1197, 1205 (Pa. Cmwlth. 200 6 ) ; Huddy v. Workers’ Compensati on Appeal Board (U.S. Air) , 905 A.2d 589, 59 2

- 93 (Pa. Cmwlth. 2006) ( en banc )

. Given the WCJ’s credib i l ity determinations , Claimant could not meet h er burden of proof and denial of both p etition s was required regardless of any other evidence or factual or legal issu es in the case. Anderson , 15 A. 3d at 948

- 49; Pryor , 9 23 A.2d at 1205

. 4

4 Claimant also contends that her 2012 L5

- S1 disc herniation and surgery invalidated the 2007 IRE on the ground she had not attained MMI at the time of that IRE. This argument fails for two

reasons. Fi rst, g iven Claimant’s failure to meet her burden of proving that the 2012 L5

- S1 disc herniation and surgery were work

- related, they are irrelevant to the validity of the IRE, as an IRE assesses only the impairment from a claimant’s compensable work injury, not the c laimant’s overall medical condition. Section 306(a.2) of the Act, added by the Act of June 2 4 , 199 6 , P.L. 350, No. 57, § 4, as amended , 77 P.S. § 511.2 (1), (8)(i), (ii) (IRE evaluates only impairment from “ the compensable injury ” and does not i nclude “ any

... nonwork

- related impairment ” ); Duffey v. Workers’ Compensation Appeal Board (Trola

- Dyne, Inc.) , 119 A.3d 445 , 450

- 51 (Pa. Cmwlth. 201 5 )

. Second, regardless of whether the 2012 injury and surgery were work

- related, the validity of the 2007 IRE , conducted years before this reinstatement petition and upheld on appeal to this Court , is beyond challenge, and any reinstatement of total disability status required a showing that Claimant had an impairment rating of at least 50%. 77 P.S. § 511.2(4); W ingrove v. Workers ’ Compensation Appeal Board (Allegheny Energy ), 83 A.3d 270 , 275

- 76 (Pa. Cmwlth. 2014)

. As Claimant introduced no evidence of any impairment rating of 50% or greater, she could not have prevailed on the Reinstatement Petition, in any eve nt.7 For the foregoing reasons, we conclude that the WCJ committed no
error in den ying Claimant’s Petition s in this matter. Accordingly, the order of t he
Board is affirmed

.

____________________________________ JAMES GARDNER COLINS, Senior JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jennifer Vinci, : : Petitioner :

: v. : No. 545 C.D. 201 5
: Workers’ Compensation A ppeal : Board ( Tenet/MCP Hospital ), : : Respondent :

O R D E R

AND NOW, this 23 rd day of October, 201 5 , the order of the Workers’ Compensation Appeal Board in the above matter is AFFIRMED

.

____________________________________ JAMES GAR DNER COLINS, Senior Judge