Fidelity Contracting, LLC v. WCAB (Risbon) ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Fidelity Contracting, LLC, :
Petitioner :
:
v. : No. 657 C.D. 2020
: Submitted: September 17, 2021
Workers’ Compensation Appeal :
Board (Risbon), :
Respondent
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: February 15, 2022
Fidelity Contracting, LLC (Employer) petitions this Court for review of the
June 12, 2020 order of the Workers’ Compensation Appeal Board (Board), affirming
the decision of a workers’ compensation judge (WCJ), which awarded Thomas
Risbon (Claimant) total disability benefits. The issues before this Court are whether
the WCJ’s findings were supported by substantial evidence and whether the WCJ
issued a reasoned decision, as required by Section 422(a) of the Workers’
Compensation Act (Act).1
I. Background
Following a work injury sustained in August 2017 while employed as an
equipment operator and laborer, Claimant filed a claim petition seeking total
disability benefits for injuries to his left hip and groin. Certified Record (C.R.), Item
No. 2. Claimant alleged that his job duties caused his condition to worsen, requiring
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 834.
multiple surgeries to treat his work injuries. Employer denied the allegations. Id.,
Item No. 4.
A. Claimant’s Evidence
Claimant testified at a September 18, 2018 deposition that his job duties for
Employer included digging trenches, laying sewer and water pipes, installing
manholes and storm grates weighing approximately 200 pounds, removing and
laying blacktop, carrying 50-80 pound bags of concrete, and operating heavy
equipment, including loaders and backhoes. C.R., Item No. 15, Claimant dep.,
9/18/18, at 7-9. While lifting a storm grate in August 2017, Claimant heard a
popping noise in his back, followed by pain and a warm, burning sensation in his
abdomen and left testicle that radiated down his left leg. Id. at 11-12. Claimant
reported the incident and his symptoms to his supervisor, who suggested that
Claimant might have torn a groin muscle. Id. at 12, 36. Claimant continued
working, despite an increase in his pain symptoms, because he “[did not] know any
better[,]” and he needed to pay his bills. Id. at 13, 18. He eventually sought
treatment with his primary care physician (PCP), who recommended physical
therapy, which Claimant attended before or after his shift to avoid missing work. Id.
at 14-15. Claimant’s physical therapy targeted the pain symptoms in his left pelvis,
left leg, left groin area, and his lower back. Id. at 18. Claimant also treated his pain
with prescription medication and steroids. Id. When physical therapy failed to
relieve Claimant’s symptoms, Claimant’s PCP referred him to Andrew Frankel,
M.D., who took Claimant out of work on February 9, 2018. Id. at 17, 19. Dr. Frankel
referred Claimant to Susan Sees, M.D., who surgically repaired hernias in
Claimant’s left groin area on May 16, 2018. Id. at 25-26.
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Claimant received unemployment compensation from the date Dr. Frankel
took him out of work through July 4, 2018, and Employer covered the cost of
Claimant’s medical treatment. Id. at 22-23. After July 4, 2018, Employer refused
to cover Claimant’s medical expenses. Id. at 22. Claimant advised that his pain has
worsened since the initial August 2017 work incident, and he continues to suffer
from pain on the left side of his groin and in his left hip, which radiates up to his
lower back and neck and down to his knee. Id. at 27. Claimant’s treating physicians
had not released him to work and he did not feel capable of resuming his pre-injury
duties for Employer, as he is unable to stand for more than ten minutes at a time and
he is unable to lift anything. Id. at 28-29.
Claimant acknowledged during cross-examination that he is able to drive and
that he goes to the grocery store when he can, but he performs housework “[as l]ittle
as possible.” Id. at 47-48. He conceded that his complaints were initially limited to
his abdomen, left leg and groin, and Dr. Frankel’s treatment addressed the pain in
his left hip and thigh. Id. at 49-50. Claimant maintained, however, that he advised
his doctors about the pain in his lower back, and they focused on treating his hernias
first. Id. at 51.
Claimant also testified live at a hearing before the WCJ on April 15, 2019. By
that date, Claimant had undergone a left hip replacement. C.R. Item No. 11, Notes
of Testimony (N.T.), 4/15/19, at 18-19. Claimant suffers from pain in both sides,
although the pain on the left is worse. Id. at 16. Claimant takes prescription pain
medication following his left hip replacement, and he receives injections for the pain
in his back. Id. at 16-19. Claimant related that he suffers from constant pain in his
left testicle, as well as pain and tingling that radiates up to his neck and down his left
knee to his toes. Id. at 22-23. He has not been released to resume his pre-injury job
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duties by any of his treating physicians. Id. at 23. Claimant does not feel capable
of performing those duties, as he cannot lift anything or operate any equipment, and
he would “be a debt to [Employer]” Id. at 24.
During cross-examination, Claimant acknowledged that he continued to work
his full duty job after the August 2017 work injury until February 2018, when Dr.
Frankel took him out of work. Id. at 26. Claimant advised that he was not instructed
to work light duty or to stop working, and he “[did not] want to lose [his] job.” Id.
Claimant denied having any issues with his left hip, leg, or groin, or with his back
prior to August 2017. Id. at 27. Claimant typically spends his day attending therapy
sessions and trying to maintain his home. Id. at 30. When his pain is particularly
bad, Claimant uses a transcutaneous electrical nerve stimulation unit. Id. Claimant
lives on a farm, where he takes care of four turkeys and a chicken. Id. at 31-32.
Claimant’s daughter helps him “when she can[,]” and his parents live across the
street. Id.
Dr. Frankel, a board-certified orthopedic surgeon, testified by deposition on
November 1, 2018. C.R., Item No. 16, Frankel dep. at 6. He first treated Claimant
on January 25, 2018. Id. at 8. At that time, Claimant complained of pain, numbness,
and tingling affecting his left side, left hip, and left thigh, which had persisted for
approximately six months. Id. at 9. Claimant related that the physical nature of his
job, which included repetitive heavy lifting and digging ditches, had “beaten him
up.” Id. at 9, 21. Dr. Frankel’s physical examination corroborated Claimant’s
symptoms, as well as “some issues with his spine[,]” although Dr. Frankel’s findings
with respect to the spine were not localized to any specific area. Id. at 10.
As part of his examination, Dr. Frankel reviewed December 18, 2017 x-rays
of Claimant’s left hip, which revealed early arthritic changes. Id. Given the severity
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of Claimant’s pain, Dr. Frankel suspected Claimant suffered a labral tear in his left
hip, which he opined could come from a twisting and lifting injury. Id. at 11-12.
After reviewing a magnetic resonance image (MRI) of Claimant’s left hip that
documented an iliopsoas strain with hematoma formation, Dr. Frankel took Claimant
out of work. Id. at 12-13, 16. An April 2, 2018 arthrogram detected the presence of
a labral tear in Claimant’s left hip, as well as hernias in his right and left groin area.
Id. at 15. Dr. Frankel stated that the iliopsoas hematoma appeared to have improved.
Id.
After Claimant complained of increased tingling and pain radiating to his
lower back in August 2018, Dr. Frankel ordered an MRI of Claimant’s lumbar spine,
which revealed a “broad-based disc herniation at L5-S1[,] with severe bilateral
neural foraminal narrowing and a grade 1 retrolisthesis[.]” Id. at 16-17. During a
September 14, 2018 examination, Dr. Frankel discussed with Claimant the
possibility that he might need a left hip replacement, in part because the arthritis in
his left hip was significant enough to interfere with treatment of his labral tear. Id.
at 19.
Ultimately, Dr. Frankel diagnosed Claimant with bilateral hernias, a left
iliopsoas strain and hematoma, a labral tear to his left hip, left hip osteoarthritis, and
an L5-S1 herniation, which Dr. Frankel opined was “likely” caused by Claimant’s
repetitive heavy lifting at work. Id. at 21. Dr. Frankel acknowledged he was not a
specialist in general surgery; nevertheless, he related Claimant’s bilateral hernias to
excessive lifting, as he generally understood that to be a cause of hernias. Id. at 19.
Regarding the osteoarthritis in Claimant’s left hip, Dr. Frankel felt that it was
accelerated by the labral tear, which could be caused by heavy lifting and twisting.
Id. at 22. Dr. Frankel did not believe Claimant had fully recovered from his injuries,
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and he did not believe Claimant could perform his pre-injury job duties, nor had he
been released to do so. Id. at 23.
On cross-examination, Dr. Frankel agreed that his initial examination of
Claimant’s lower back was “relatively normal,” and subsequent examinations on
July 31, 2018, and September 14, 2018, revealed no objective findings. Id. at 25.
He also agreed that the need for a total hip replacement can result from wear and
tear over the course of years. Id. at 38. However, he related that other conditions,
such as a labral tear, could cause the sudden deterioration of a hip. Id. Although Dr.
Frankel did not believe Claimant could return to his pre-injury job, he did believe
Claimant could work in some capacity. Id. at 39.
B. Employer’s Evidence
Employer presented the deposition testimony of Robert Grob, D.O., and
Arnold Baskies, M.D., who each performed an independent medical examination
(IME) of Claimant.
Dr. Grob’s IME took place on October 18, 2018. C.R., Item No. 18, Grob
dep. at 10. At that time, Claimant complained of pain along his left hip, which
radiated into his groin and down to his left knee, weakness in his left leg with
occasional tingling in his left foot, and pain in his lower back, extending from the
middle of his back to his right side. Id. at 12-13. Claimant advised that he was
injured at work after lifting a storm grate. Id. at 10. He felt a pop in his back,
followed by pain radiating into his left groin and down to his left ankle. Id. Dr.
Grob limited his evaluation to Claimant’s orthopedic complaints, and he declined to
render an opinion regarding any hernias Claimant may have suffered. Id. at 19.
While Claimant reported his pain averaged a 9 out of 10, Dr. Grob suspected
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Claimant was magnifying his symptoms, as his subjective complaints were not
supported by any positive objective findings. Id. at 13-14.
As part of the IME, Dr. Grob reviewed Claimant’s medical records, including
diagnostic studies. Dr. Grob did not see anything in the diagnostic studies that
suggested the presence of an acute injury; rather, they indicated a degenerative
process occurring in Claimant’s lower back and left hip. Id. at 20-21. Dr. Grob
found no evidence that Claimant sustained any injuries from the alleged August 2017
work injury, nor did he believe that the work injury aggravated any preexisting
degenerative condition Claimant had. Id. at 23-24. “[A]t the most,” Dr. Grob
thought Claimant sustained a left hip strain as a result of that incident. Id. at 23-24.
He estimated the recovery period for such an injury to be approximately six weeks.
Id. at 25. Therefore, Dr. Grob opined that Claimant had fully recovered from his left
hip strain and Claimant did not require any further medical treatment or work
restrictions. Id. at 26. Dr. Grob did not disagree with Dr. Frankel’s diagnoses, or
the treatment he provided; Dr. Grob merely did not relate any of Claimant’s
conditions to a work injury. Id. at 33, 47.
Dr. Baskies examined Claimant on October 23, 2018. C.R., Item No. 19,
Baskies dep. at 9. He expressly limited his examination, and resultant medical
opinion, to Claimant’s bilateral hernias. Id. at 13. Based on the history Claimant
provided, Dr. Baskies understood that Claimant was injured in August 2017 while
lifting a storm grate. Id. at 10. Claimant’s chief complaints during the October 23,
2018 IME were pain in his left lower back and his left hip. Id. at 11. Dr. Baskies
reviewed the medical records of Dr. Sees, who surgically repaired Claimant’s
hernias, and performed a physical examination. Id. at 12, 15. Claimant expressed
mild left testicular discomfort with palpation. Id. at 15. Otherwise, Dr. Baskies
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found no clinical evidence to suggest the presence of any persistent or recurrent
hernia, and he did not believe Claimant required any additional treatment for his
bilateral hernias, nor did he require any work restrictions due to that condition. Id.
at 15, 18. He related that Dr. Sees’ post-surgical office notes likewise found no
evidence of recurrent hernias. Id. at 19. Dr. Baskies did not relate Claimant’s
bilateral hernias to any work injury. Id. at 16.
During cross-examination, Dr. Baskies acknowledged that the report from a
July 2, 2018 computed tomography (CT) scan reflected the possible presence of
recurrent bilateral hernias. Id. at 30. Dr. Baskies noted this finding in his written
report, stating that Claimant had not reached maximum medical improvement due
to the “radiological suggestion” that Claimant had “persistent hernias in both
groins.” Baskies dep., Ex. 2 at 5. Regarding the work-related nature of Claimant’s
hernias, Dr. Baskies conceded that a November 29, 2017 office note from Claimant’s
PCP indicated that Claimant complained of thigh and groin pain, and he reported
having pulled a groin muscle at work three or four months earlier after lifting a “large
metal cover” at work. Id. at 31. Dr. Baskies agreed that Dr. Sees’ records similarly
reflected that Claimant developed an acute onset of left groin and thigh pain after
lifting something heavy at work. Id. at 40.
C. WCJ Decision
In an August 12, 2019 decision, the WCJ credited Claimant’s live testimony,
in part based on his personal observation of Claimant’s demeanor while testifying.
C.R., Item No. 5, WCJ Decision, Finding of Fact (F.F.) No. 7. The WCJ also
credited Claimant’s efforts to continue working, despite the increase in his
symptoms, and Claimant’s attempt to avoid missing work by scheduling his physical
therapy sessions outside work hours. Id. The WCJ credited the testimony of Dr.
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Frankel over that of Dr. Grob and Dr. Baskies. F.F. No. 8. The WCJ noted that Dr.
Frankel was Claimant’s treating physician, and his opinions were based on multiple
examinations taking place over a period of time. Id. Dr. Frankel’s testimony was
further supported by the findings in Claimant’s CT and MRI studies, and consistent
with Claimant’s credible testimony regarding his ongoing symptoms. Id. The WCJ
discredited Dr. Grob’s opinion that Claimant did not suffer a work injury, given the
nature of Claimant’s employment and the absence of any prior history of injury or
disability. Id. Dr. Baskies’ opinion that Claimant’s bilateral hernias were not work
related was similarly rejected, as was his opinion that Claimant had recovered from
these injuries, in light of the abnormal CT report from July 2, 2018, and Claimant’s
credible testimony that he continued to suffer from groin pain. Id.
Accordingly, the WCJ found that Claimant suffered work injuries consisting
of bilateral hernias, a left iliopsoas strain and hematoma, a labral tear of the left hip,
left hip osteoporosis, and a disc herniation at L5-S1, all of which were caused by
“repetitive physical labor at work through February 9, 2018.” F.F. No. 9. As a
result, Claimant was disabled from his pre-injury job with Employer, effective
February 9, 2018. Id. Claimant had not fully recovered from his work injuries,
which required continued medical treatment. Id. The WCJ rejected Employer’s
medical evidence to the extent it conflicted with his findings. Id. The WCJ awarded
Claimant total disability benefits from February 9, 2018, and ongoing. WCJ
Decision at 10. Employer was entitled to a credit for any unemployment
compensation benefits Claimant received. Id.
Employer appealed to the Board, which affirmed, and Employer filed its
petition for review. C.R., Item No. 8. On December 3, 2020, the parties filed a
stipulation of facts with this Court, in which they acknowledged the execution of an
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October 20, 2020 compromise and release agreement (C&R) that resolved
Claimant’s right to future wage loss and medical benefits. Stipulation, ¶ 11. The
C&R did not affect Employer’s petition for review pending with this Court. Id., ¶
12. Employer previously sought supersedeas from the Board, which it denied in an
October 3, 2019 order. Id., ¶ 8. Because Claimant’s right to future wage loss and
medical benefits was resolved by the C&R, and Employer could seek reimbursement
of workers’ compensation benefits from the Workmen’s Compensation Supersedeas
Fund (Supersedeas Fund)2 should it prevail on the petition for review, Claimant
declined to submit a reply brief in the present appeal. Id., ¶ 14.
II. Issues
Employer argues on appeal that the WCJ’s findings of fact are not supported
by substantial, competent evidence and that the WCJ failed to issue a reasoned
decision, as required by Section 422(a) of the Act.
III. Discussion
A. Substantial Evidence
This Court’s review is limited to determining whether the necessary findings
of fact were supported by substantial evidence, whether constitutional rights were
violated, or whether errors of law were committed. Borough of Heidelberg v.
Workers’ Comp. Appeal Bd. (Selva), 894 A.2d 861, 863 n.3 (Pa. Cmwlth. 2006).
Substantial evidence is such relevant evidence that a reasonable person might accept
as adequate to support a finding. City of Philadelphia v. Workers’ Comp. Appeal
2
Section 443(b) of the Act created the Supersedeas Fund for the purpose of reimbursing
an employer ordered to pay workers’ compensation benefits that are later determined not to be
owed. Section 443 was added by the Act of February 8, 1972, P.S. 25, 77 P.S. § 999. An employer
will be reimbursed by the Supersedeas Fund if it can demonstrate the following: a supersedeas was
requested and denied; compensation payments were continued because of the order denying
supersedeas; and the claimant was determined not to be entitled to the compensation paid by the
employer. Section 443(a) of the Act, 77 P.S. § 999(a).
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Bd. (Kriebel), 29 A.3d 762, 769 (Pa. 2011). When performing a substantial evidence
analysis, this Court must view the evidence in a light most favorable to the party that
prevailed before the factfinder. Hoffmaster v. Workers’ Comp. Appeal Bd. (Senco
Prod., Inc.), 721 A.2d 1152, 1155 (Pa. Cmwlth. 1998). We must also draw all
reasonable inferences deducible from the evidence that supports the factfinder’s
decision in favor of the prevailing party. Id. It is irrelevant whether the record
contains evidence to support findings other than those made by the WCJ; the inquiry
before this Court is whether evidence exists to support the findings actually made.
Minicozzi v. Workers’ Comp. Appeal Bd. (Indus. Metal Plating, Inc.), 873 A.2d 25,
29 (Pa. Cmwlth. 2005).
The WCJ is the ultimate finder of fact and the exclusive arbiter of credibility
and evidentiary weight. Lindemuth v. Workers’ Comp. Appeal Bd. (Strishock Coal
Co.), 134 A.3d 111, 125 (Pa. Cmwlth. 2016). In executing his role as factfinder, the
WCJ may accept or reject, in whole or in part, the testimony of any witness, even if
that testimony is uncontradicted. Hoffmaster, 721 A.2d at 1155. A WCJ’s
credibility determinations are due substantial deference and may only be overturned
if they are “arbitrary and capricious or so fundamentally dependent on a
misapprehension of material facts, or so otherwise flawed, as to render [them]
irrational.” Casne v. Workers’ Comp. Appeal Bd. (STAT Couriers, Inc.), 962 A.2d
14, 19 (Pa. Cmwlth. 2008).
With these precepts in mind, we turn to Employer’s first argument, which
attacks the WCJ’s finding that Claimant suffered work injuries caused by repetitive
physical labor. Employer contends that there is no evidence to suggest that
Claimant’s job was repetitive in nature or that he sustained any form of cumulative
trauma. Rather, Claimant testified that he suffered a work injury in August 2017
11
after lifting a storm grate. Therefore, based on a faulty understanding of the
mechanism of Claimant’s injury, Employer contends that the WCJ erred in granting
Claimant’s claim petition.
Employer is correct that Claimant related his injury to the initial August 2017
work incident. However, Claimant also credibly testified that he continued to work,
despite an increase in his pain symptoms, because he was never instructed to go on
light duty or not to work, he had bills to pay, and he “[did not] want to lose [his]
job.” Claimant dep. at 13, N.T., at 26. Claimant’s job duties unquestionably
involved heavy physical labor, such as cutting and removing blacktop, shoveling
stone, digging trenches, laying sewer pipe, lifting storm grates and manholes, and
carrying bags of concrete. Employer has not disputed Claimant’s description of his
job duties or denied that Claimant continued to perform these duties for several
months after the initial August 2017 work incident, the occurrence of which
Employer also does not dispute. From this evidence, which the WCJ credited, we
may reasonably deduce that Claimant’s work duties consisted of repetitive physical
labor. Therefore, to the extent the WCJ’s decision relied on a finding that Claimant’s
job involved repetitive heavy lifting, we discern no error, as substantial evidence
exists to support such a finding.
Next, Employer argues that Dr. Frankel’s testimony and medical opinions
were incompetent and equivocal. In support of its argument, Employer cites Dr.
Frankel’s “inaccurate” understanding of the mechanism of Claimant’s injury, Dr.
Frankel’s opinion that Claimant’s work injury “likely” caused his diagnosed
conditions, and Dr. Frankel’s admitted lack of expertise in treating hernias.
Employer br. at 17.
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A medical opinion may be rendered incompetent when made by a medical
professional who lacks a complete grasp of the medical situation and/or the work
incident. Long v. Workers’ Comp. Appeal Bd. (Integrated Health Serv., Inc.), 852
A.2d 424, 428 (Pa. Cmwlth. 2004). A medical expert’s opinion is not rendered
incompetent, however, unless it is solely based on inaccurate or false information.
Am. Contracting Enters., Inc. v. Workers’ Comp. Appeal Bd. (Hurley), 789 A.2d
391, 396 (Pa. Cmwlth. 2001). The opinion of a medical expert must be viewed as a
whole, and inaccurate information will not defeat an expert’s opinion unless it is
solely dependent on those inaccuracies. Id. Moreover, an expert witness may base
his opinion on facts of which he has no personal knowledge, provided that those
facts are supported by evidence of record. Newcomer v. Workmen’s Comp. Appeal
Bd. (Ward Trucking Corp.), 692 A.2d 1062, 1066 (Pa. 1997).
A medical expert’s testimony is unequivocal if, after providing a foundation,
he testifies that he believes or thinks the facts exist, and the result in question came
from the assigned cause. Bemis v. Workers’ Comp. Appeal Bd. (Perkiomen Grille
Corp.), 35 A.3d 69, 72 (Pa. Cmwlth. 2011). The law does not require every utterance
from a medical expert to be certain, positive, and without reservation or exception.
Id. The use of words such as “likely” will not render an expert opinion equivocal
provided that the testimony, when read in its entirety, is unequivocal and the witness
does not recant the opinion or belief first expressed. Id.We do not agree that Dr. Frankel’s opinions were based on an incomplete
understanding of Claimant’s medical situation or the mechanism of his work injury.
As discussed above, substantial evidence exists to support a finding that Claimant’s
job duties involved repetitive physical labor. When Dr. Frankel first examined
Claimant on January 25, 2018, Claimant complained of ongoing pain for the past six
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months. Dr. Frankel understood that Claimant worked as a laborer and his job duties
included lifting heavy objects. He also understood that Claimant continued to work
his full-duty job despite his pain symptoms, which he experienced for several
months. Claimant advised Dr. Frankel that the heavy lifting at work had “beaten
him up.” Frankel dep. at 21. Dr. Frankel reviewed the results of Claimant’s MRIs
and arthrogram, from which he diagnosed Claimant with left hip osteoarthritis, as
well as right-sided hernias of a “reasonable size” and a moderately sized left-sided
hernia, a labral tear in Claimant’s left hip, a left iliopsoas strain and hematoma, and
a disc herniation at the L5-S1 level of Claimant’s lumbar spine. Id. at 15. While
Employer disagrees that Claimant’s injuries were work-related, it has not questioned
the existence of those injuries, or Dr. Frankel’s diagnoses.
Based on his review of Claimant’s diagnostic studies and his understanding
of Claimant’s job duties, Dr. Frankel opined that Claimant’s labral tear came from
heavy labor. While Dr. Frankel acknowledged that he was not a specialist in general
surgery, he felt that Claimant’s bilateral hernias were caused by heavy lifting, an
opinion he based on his generalized medical knowledge. Frankel dep. at 21, 36. Dr.
Frankel also causally related Claimant’s disc herniation and iliopsoas strain to
Claimant’s work duties, opining that a causal relationship was “self-evident.”
Frankel dep. at 21. Dr. Frankel acknowledged that the cause of Claimant’s left hip
osteoarthritis was more difficult to place, and he recognized that the osteoarthritis
may have been preexisting. He opined, however, that labral tears can cause the rapid
acceleration of osteoarthritis, and he unequivocally related Claimant’s labral tear to
his heavy labor work duties. Consequently, Dr. Frankel believed Claimant’s left hip
osteoarthritis was work-related.
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We must also reject Employer’s argument that Dr. Frankel’s testimony and
opinions were equivocal. While Dr. Frankel initially opined that Claimant’s injuries
were “likely” caused by Claimant’s repetitive heavy lifting at work, he subsequently
explained why he related all of Claimant’s injuries to his job duties and he never
recanted his belief that Claimant’s diagnosed conditions were caused by heavy
physical labor at work. Id. at 21.
Employer’s next argument challenges the WCJ’s finding that the August 2017
work incident caused Claimant’s L5-S1 disc herniation and bilateral hernias.
Employer submits that the evidence demonstrates Claimant did not seek treatment
for, or complain of, any lower back condition until July 31, 2018, during an
appointment with Dr. Frankel. Employer notes that Dr. Frankel’s initial physical
examination of Claimant’s lower back on January 25, 2018, yielded normal results,
as did his subsequent examinations on July 31, 2018, and September 14, 2018.
Regarding Claimant’s bilateral hernias, Employer argues that Claimant never
complained of right-sided pain. As a result, Claimant’s right-sided hernias were not
work-related. Employer further argues that, because Claimant did not present any
medical evidence from the surgeon who treated his hernias, the record does not
support a finding that they were caused by Claimant’s work duties. Employer
dismisses Dr. Frankel’s opinion of causation because Dr. Frankel acknowledged that
he did not examine or treat Claimant for those injuries. Employer maintains that the
only uncontroverted opinion with respect to Claimant’s hernias came from Dr.
Baskies, who opined that they were not work-related. We reject these arguments.
As to his lower back pain, Claimant testified at his September 18, 2018
deposition that in August 2017, after lifting the storm grate, he felt a “pop” in his
lower back followed by a “warm burning sensation” and pain that radiated from his
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lower back and down his left leg. Claimant dep. at 11-12. He reported the incident
to his supervisor, complaining of pain in his groin, hip, back, and leg. Id. at 36.
Claimant testified that he advised his doctors about the pain in his lower back, who
treated his hernias as a priority. Claimant attended physical therapy, which in part
treated issues with Claimant’s lower back. Id. at 16. While Dr. Frankel’s treatment
primarily addressed Claimant’s left hip pain, he did note “some issues” with
Claimant’s spine at his initial examination on January 25, 2018. Frankel dep. at 10.
Dr. Frankel ordered an MRI of Claimant’s lumbar spine in August 2018 after
Claimant complained of increased tingling and pain radiating to his lower back. The
WCJ credited Claimant’s and Dr. Frankel’s testimony, as well as Dr. Frankel’s
opinion that Claimant’s disc herniation was caused by Claimant’s heavy labor job
duties.
Regarding Claimant’s bilateral hernias, Claimant stated that, following the
initial incident in August 2017, he experienced a warm, burning sensation in his
abdomen and left testicle. Although he testified that the pain on his left side was
worse than the pain on his right, Claimant also related that the pain in his groin
intensified and spread to his “lower stomach” “around [his] belly button area.” Id.
at 14; N.T., 4/15/19, at 16. While Dr. Frankel acknowledged that the treatment of
hernias was not within his expertise, and he would defer to the surgeon who repaired
Claimant’s hernias, Dr. Frankel also unequivocally opined that they were caused by
heavy lifting at work. The WCJ rejected Dr. Baskies’ opinion that Claimant’s
hernias were not work related, given the physical nature of Claimant’s job. He also
rejected Dr. Baskies’ opinion that Claimant had fully recovered from the bilateral
hernias, as Claimant continued to experience groin pain and the abnormal CT report
from July 2, 2018, indicated the possible presence of recurrent hernias.
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The WCJ is the exclusive arbiter of credibility, and this Court will not overturn
his determinations in that regard. Moreover, viewing the evidence in a light most
favorable to Claimant, as the party that prevailed before the WCJ, we conclude that
substantial evidence supports the WCJ’s findings that Claimant’s L5-S1 disc
herniation and his bilateral hernias were caused by repetitive heavy labor at work.
B. Reasoned Decision
Section 422(a) of the Act requires the WCJ to issue 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....” 77 P.S. § 834. A decision is “reasoned” if it allows for adequate review
by the appellate courts under the applicable review standards. Acme Mkts., Inc. v.
Workers’ Comp. Appeal Bd. (Brown), 890 A.2d 21 (Pa. Cmwlth. 2006). The
purpose of a reasoned decision is to spare the reviewing court from having to
imagine why the WCJ believed one witness over another. Dorsey v. Workers’ Comp.
Appeal Bd. (Crossing Constr. Co.), 893 A.2d 191, 196 (Pa. Cmwlth. 2006). The
WCJ may not reject uncontroverted evidence without reason, or for an irrational
reason, but must identify such evidence and adequately explain the reasons for its
rejection. Daniels v. Workers’ Comp. Appeal Bd. (Tristate Transp.), 828 A.2d 1043(Pa. 2003).
Employer’s argument that the WCJ failed to issue a reasoned decision largely
reiterates its prior arguments, citing the lack of evidence demonstrating Claimant
had a repetitive job, Claimant’s failure to seek treatment for any lower back
condition until July 31, 2018, Claimant’s failure to present evidence from the
surgeon who treated his hernias, and Dr. Baskies’ uncontroverted opinion that
17
Claimant’s hernias were not work related. As we have already addressed and
dismissed those arguments, we need not revisit them.
The remainder of Employer’s reasoned decision argument essentially
suggests that the WCJ should have credited the opinions of Dr. Baskies over those
expressed by Dr. Frankel. We cannot overturn the WCJ’s credibility determinations
on that basis. Nor would we, as the WCJ thoroughly explained his reasoning, and
this court is not in the position of having to imagine why the WCJ believed Dr.
Frankel over Dr. Baskies. Dr. Frankel was deemed credible based on his status as
Claimant’s treating physician, who examined Claimant on multiple occasions over
a period of time. As discussed above, Dr. Baskies’ opinion that Claimant’s hernias
were not work related was rejected in light of the physical nature of Claimant’s job,
and his opinion that Claimant had fully recovered from his hernias was contradicted
by the abnormal CT scan and Claimant’s credible testimony that he continued to
suffer from groin pain. Therefore, we conclude that the WCJ’s decision was
sufficiently reasoned, as required by Section 422(a) of the Act.
IV. Conclusion
The WCJ’s findings are supported by substantial evidence and his decision
comports with the requirements of Section 422(a) of the Act. Accordingly, we
affirm the Board.
__________________________________
ELLEN CEISLER, Judge
Judge Fizzano Cannon did not participate in the decision of this case.
18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Fidelity Contracting, LLC, :
Petitioner :
:
v. : No. 657 C.D. 2020
:
Workers’ Compensation Appeal :
Board (Risbon), :
Respondent
ORDER
AND NOW, this 15th day of February, 2022, the June 12, 2020 order of the
Workers’ Compensation Appeal Board is hereby AFFIRMED.
__________________________________
ELLEN CEISLER, Judge