C. Yeakley v. WCAB (BBU, Inc./Bimbo Bakeries USA) ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Crystal Yeakley, :
Petitioner :
:
v. : No. 500 C.D. 2016
: Submitted: August 19, 2016
Workers’ Compensation Appeal Board :
(BBU, Inc./Bimbo Bakeries USA; :
Indemnity Insurance Company :
of North America and ESIS :
Northeast WC Claims), :
Respondents :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE JULIA K. HEARTHWAY, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: January 6, 2017
Petitioner Crystal Yeakley (Claimant) petitions for review of an order
of the Workers’ Compensation Appeal Board (Board). The Board affirmed the
decision of a Workers’ Compensation Judge (WCJ), granting the claim petition
filed by Claimant and the termination petitions filed by Claimant’s employer,
BBU, Inc./Bimbo Bakeries USA (Employer). For the reasons set forth herein, we
affirm the Board’s order.
Claimant worked for Employer as a baker’s helper. On
March 11, 2014, Claimant sustained a work-related injury in the nature of a left
shoulder contusion. Employer accepted liability for Claimant’s work-related
injury pursuant to a medical-only Temporary Notice of Compensation Payable,
which was subsequently converted to a Notice of Compensation Payable. On
June 10, 2014, Claimant filed a claim petition, asserting that she sustained an
injury to her left shoulder, neck, and back, when she slipped and fell while working
for Employer on March 11, 2014, and that she is totally disabled as a result thereof.
Thereafter, on August 26, 2014, Employer filed two termination petitions,
asserting that Claimant had fully recovered from her work-related injury as of
August 11, 2014.1
Claimant testified before the WCJ at the hearing held on
July 15, 2014. At that time, Claimant explained that on March 11, 2014, she was
wrapping and bagging bread for Employer, when she slipped on a “slippy” floor
and fell onto her left side, injuring her left side, left shoulder, and neck.
(Reproduced Record (R.R.) at 24a.) Claimant reported the injury to her shift
supervisors, but did not seek immediate medical treatment. (Id. at 24a-26a.) Three
days after the work-related incident, Claimant treated with the Health and Wellness
Center. (Id. at 26a.) While treating with the Health and Wellness Center,
Claimant worked for Employer in a light duty position. (Id. at 28a.) Sometime in
middle-to-late April 2014, Claimant reported to the Health and Wellness Center
that she was no longer having any problems with her left shoulder or neck.
(Id. at 37a.) At that time, Claimant was released to return to full duty, however,
after only one day of working, Claimant had a flare-up and was returned to light
duty. (Id. at 37a-38a.) Claimant continued to perform the light duty position with
Employer until Gene V. Levinstein, M.D. (Dr. Levinstein), to whom she was
1
It is unclear to the Court why Employer filed two separate termination petitions, as both
termination petitions seek termination of Claimant’s benefits as of August 11, 2014, based upon
Dr. Raklewicz’s independent medical examination report and opinion that Claimant had fully
recovered from her March 11, 2014 work-related injury.
2
referred by her attorney, prescribed Gabapentin, a nerve pain medication that made
her light-headed and dizzy but reduced her pain and eliminated her migraines.
(Id. at 28a-29a, 31a, 42a-43a.) Claimant stated that she immediately notified
Employer that she was taking the medication as required by her collective
bargaining agreement, and Employer informed her that it could no longer
accommodate her with the light duty position due to her use of the medication.
(Id. at 29a-31a.) Claimant testified that she is capable of performing the light duty
position, but for her use of the medication. (Id. at 38a-39a.) Although she has
been looking for work, Claimant has not worked since that time. (Id. at 32a-33a.)
Claimant testified further that following the March 11, 2014
work-related incident, she experienced pain in the rear, upper part of her left
shoulder, shooting pain up into her neck, and daily migraines. (Id. at 27a-28a.)
Claimant explained that her injury affected the upper part of her back in the area of
her trapezius, not her lower back. (Id. at 32a-34a.) Claimant denied experiencing
migraines or any problems, accidents, or incidents relative to her left shoulder or
neck at any time prior to the March 11, 2014 work-related injury. (Id. at 26a-28a.)
Claimant also explained that she continues to have problems with her shoulder and
neck, but that those problems are lessened with the use of medication. (Id. at 39a.)
Claimant stated that she does not have any problems moving or lifting her shoulder
as the injury affects her trapezius area and neck, not her shoulder joint.
(Id. at 39a-40a.) Claimant reported further that she experiences numbness and
tingling in her left arm and hand and occasional pain in her elbow upon prolonged
standing or sitting. (Id. at 40a-41a.) Claimant continues to treat with Dr.
Levinstein for her work-related injury. (Id. at 32a-34a.)
3
Claimant again testified before the WCJ at the hearing held on
February 17, 2015. At that time, Claimant explained that she continues to
experience pain in her shoulder. (Id. at 60a-61a.) Claimant explained further that
the video surveillance and report obtained by Employer was inaccurate because:
(1) the individual depicted holding the hand of a little girl is not Claimant;
(2) Claimant does not have a little girl; (3) there is no silver Toyota parked at
1028 Barnesville Drive; (4) June 18, 2014, was a Wednesday, not a Friday; and
(5) Claimant did not have a scheduled appointment on June 18, 2014.
(Id. at 63a-64a.)
Claimant presented the deposition testimony of Dr. Levinstein, who is
board certified in physical medicine and rehabilitation and pain management.
(Id. at 91a-92a.) Dr. Levinstein testified that he first treated Claimant on
June 13, 2014, as a referral from Claimant’s attorney. (Id. at 94a-95a.) On that
date, Claimant reported that on March 11, 2014, she slipped and fell on the floor
while working for Employer. (Id. at 95a.) Claimant explained to Dr. Levinstein
that, as she fell, she attempted to grab a rail located on her right and struck the
floor with her left arm. (Id.) Dr. Levinstein’s physical examination of Claimant
revealed decreased sensation to light touch and pinprick on a pure sensory
examination of the left upper extremity. (Id. at 95a-96a.) Based on the history
provided by Claimant, his physical examination of Claimant, and his review of
prior diagnostic and EMG studies, Dr. Levinstein diagnosed Claimant with a
brachial plexus lesion on the left side, brachial neuritis, and a left shoulder
sprain/strain. (Id. at 96a.) Dr. Levinstein recommended light duty work
restrictions with respect to the left arm and shoulder, which included working eight
hours per day walking, standing, or sitting, with no lifting above the shoulder or
4
overuse of the left arm. (Id. at 96a-97a.) Dr. Levinstein also recommended that
Claimant use anti-inflammatory and nerve pain medications and discussed with
Claimant the potential need for injections if her symptoms did not improve.
(Id. at 96a-97a.)
Dr. Levinstein treated Claimant again on July 18, August 18, and
September 23, 2014. (Id. at 97a.) On those dates, Claimant reported an
improvement in numbness and tingling with the use of medication and occasional
light-headedness and dizziness. (Id. at 97a-98a.) Claimant also reported that
despite being released to return to work with restrictions, she was not working
because of an inability to operate machinery and the potential side effects of her
medication. (Id. at 98a.) Dr. Levinstein’s physical examinations revealed
consistent findings and positive brachial plexus stretch tests. (Id. at 99a.) Dr.
Levinstein explained that Claimant’s recent EMG study was consistent with an
injury to the brachial plexus, but that a prior MRI of Claimant’s shoulder and a
prior CAT scan of Claimant’s neck were within normal limits. (Id. at 99a-100a.)
Dr. Levinstein described Claimant’s mechanism of injury as a stretch injury of the
brachial plexus secondary to the fall. (Id. at 100a.)
Dr. Levinstein opined that his final diagnosis of Claimant’s
work-related injury was left shoulder sprain/strain, left brachial plexus neuritis, and
a left brachial plexus lesion. (Id.) Dr. Levinstein further opined that Claimant had
not fully recovered from her work-related injury because she continued to be
symptomatic. (Id. at 101a-02a.) Dr. Levinstein explained that he categorically
disagreed with the independent medical examination of Michael C. Raklewicz,
M.D. (Dr. Raklewicz) and noted that Dr. Raklewicz did not have the EMG study
during his evaluation of Claimant and that, despite a finding of hyperesthesia and
5
allodynia in the area of the brachial plexus upon physical examination, Dr.
Raklewicz diagnosed Claimant with only a shoulder sprain/strain. (Id. at 101a.)
Dr. Levinstein also opined that Claimant was capable of returning to full time, light
duty work, with minimal use of her left arm and lifting only five to ten pounds.
(Id. at 102a.) Dr. Levinstein described Claimant’s prognosis as guarded to fair.
(Id.) He explained that Claimant continues to be symptomatic with positive EMG
findings, which indicates a serious injury that could be permanent. (Id.)
Nevertheless, Dr. Levinstein believed that Claimant’s condition could improve
with a series of injections based on her positive improvement with medication.
(Id.)
On cross-examination, Dr. Levinstein confirmed that it was his
understanding that Claimant’s problems, complaints, and pain continued from the
date of injury to the date that he first treated Claimant in June 2014, but he noted
that the pain associated with a brachial plexus injury can wax and wane.
(Id. at 107a-08a.) Dr. Levinstein disagreed that his diagnosis of a brachial plexus
stretch injury would be contradicted if there was a period of time that Claimant
was asymptomatic and had no problems with her left shoulder and arm.
(Id. at 108a.) He explained that Claimant’s EMG clearly demonstrates a problem
with the brachial plexus and that Claimant was able to perform her job without
restrictions prior to the work injury. (Id.) While he admitted that Claimant’s
medical records from the Health and Wellness Center for April 1, April 15, and
April 29, 2014, indicated that for a period of one month Claimant did not complain
of pain in her shoulder or trapezius, Dr. Levinstein could not state whether
Claimant was asymptomatic for that entire month. (Id. at 109a-10a.) Dr.
Levinstein further confirmed that other than the brachial plexus test and the
6
pinprick test, Claimant’s neurological testing was normal and that there was
nothing wrong with Claimant’s cervical spine. (Id. at 112a-13a.) Dr. Levinstein
testified that Claimant was presently scheduled to undergo injections to her
brachial plexus area due to her failure to improve with conservative measures.
(Id. at 113a.)
Employer presented the deposition testimony of Dr. Raklewicz, a
board certified orthopedic surgeon.2 (Id. at 129a.) Dr. Raklewicz performed an
independent medical examination of Claimant on August 11, 2014. (Id. at 130a.)
On that date, Claimant provided Dr. Raklewicz with a history of her work injury
and treatment, which included her mechanism of injury. (Id. at 131a-34a.)
Claimant explained to Dr. Raklewicz that she had slipped on a wet floor and had
fallen onto her left arm while working for Employer. (Id. at 131a, 133a.) Claimant
did not inform Dr. Raklewicz that she had grabbed onto a railing with her right arm
as she fell, which Dr. Raklewicz explained is an important part of the history for a
diagnosis of a brachial plexus injury. (Id. at 133a.) Dr. Raklewicz performed a
physical examination, which revealed: (1) subjective complaints of severe pain to
light touch anywhere near the left trapezius muscle; (2) normal range of motion in
the cervical spine; (3) normal range of motion in the shoulders bilaterally;
(4) slight subjective weakness to the left biceps and triceps muscles, with reported
pain in the neck upon testing, which Dr. Raklewicz found unusual because he
could not correlate the reported pain physiologically; (5) normal hand intrinsic
power bilaterally; (6) no obvious signs of atrophy in the left shoulder, upper arm,
2
Employer also presented the testimony of David E. Cole, who was the plant manager
for Employer’s Hazleton location at the time that Claimant sustained her work-related injury,
however, his testimony is not relevant to Claimant’s arguments on appeal.
7
or forearm, which Dr. Raklewicz would have expected to see if there was a serious
injury and the patient was not using the left side; (7) normal sensation in the left
upper extremity; and (8) no evidence of neuropathic pain requiring the use of
Gabapentin. (Id. at 134a-37a, 142a.) Dr. Raklewicz also reviewed Claimant’s
medical records and diagnostic testing, which revealed: (1) x-rays of Claimant’s
pelvis, left hip, left shoulder, sacroiliac joints, and elbow were normal; (2) an MRI
of Claimant’s left shoulder performed on March 24, 2014, showed no tears,
fractures, evidence of acute injury, or tendinopathy; and (3) a stat c-spine and head
CT scan performed on May 23, 2014, were normal. (Id. at 137a-42a.)
Dr. Raklewicz’s overall impression of Claimant’s work injury was a
left shoulder strain and left elbow contusion. (Id. at 142a-43a.) Dr. Raklewicz
concluded that Claimant had fully recovered from the accepted work injury of a
left shoulder contusion, as well as the left shoulder strain and left elbow contusion,
as of August 11, 2014, and that Claimant was capable of returning to full duty
work and required no further treatment. (Id. at 143a-42a, 158a-60a.) Dr.
Raklewicz noted further that there was evidence of symptom magnification during
his physical examination of Claimant, as Claimant complained of extreme pain
with very light finger touch to the trapezius, which is not physiologic.
(Id. at 144a-45a.) Dr. Raklewicz disagreed with Dr. Levinstein’s diagnosis of a
brachial plexus problem and brachial neuritis, because Claimant’s physical
examination was normal, with no evidence to suggest a brachial plexus traction
injury or neuritis. (Id. at 145a.) Dr. Raklewicz explained that if Claimant had
sustained a brachial plexus injury, he would not have expected the range of motion
in her shoulder and neck to be normal and that there should have been evidence of
either weak muscles or severe sensory problems. (Id. at 145a-46a.)
8
Sometime after he completed his independent medical examination of
Claimant, Dr. Raklewicz reviewed additional documentation/records, including a
written surveillance summary, Dr. Levinstein’s records from June 13, 2014,
through October 24, 2014, and an EMG study performed on June 11, 2014.
(Id. at 149a-51a.) Dr. Raklewicz explained that EMGs are “definitely subjective”
and, in this case, Claimant’s EMG did not correlate with his findings on physical
examination. (Id. at 152a-53a.) Dr. Raklewicz indicated that if Claimant had
sustained a brachial plexus injury on March 11, 2014, he would have expected
Claimant’s complaints with respect to her cervical spine and trapezius area to be
continuous because a brachial plexus injury is a stretching of the nerve that causes
potentially permanent damage. (Id. at 153a-54a.) Dr. Raklewicz indicated further
that Claimant’s medical records from March 11, 2014, through April 2014, did not
indicate that Claimant was having any pain or problems with respect to her
brachial plexus. (Id. at 154a-55a.) Dr. Raklewicz stated further that if Claimant
injured her brachial plexus on March 11, 2014, it would be impossible for her to
have no immediate brachial plexus problems and then three months later to
develop such problems. (Id. at 155a-56a.) Based upon his review of these
additional documents/records, Dr. Raklewicz opined that Claimant did not suffer
from a brachial plexus lesion or brachial neuritis/radiculitis as a result of the
March 11, 2014 work-related injury. (Id. at 156a-57a.)
On August 31, 2015, the WCJ issued a decision, granting Claimant’s
claim petition and Employer’s termination petitions. In so doing, the WCJ
summarized the witnesses’ testimony and made the following credibility
determinations:
43. Claimant’s testimony is accepted as credible and
persuasive to the extent that she described her work
9
injury suffered on March 11, 2014, which resulted in a
closed period of disability until the date of her
[independent medical examination] with Dr. Raklewicz
on August 11, 2014. To this extent, Claimant’s
testimony was not shaken on cross-examination and was
supported by the accepted testimony and opinions of Dr.
Levinstein. To the extent that Claimant’s testimony
provides that she continued to suffer from her work
injury and disability related thereto after the date of her
[independent medical examination] with Dr. Raklewicz
on and after August 11, 2014, it is rejected as not credible
and persuasive. In this regard, it is noted that Dr.
Raklewicz’s testimony establishes that Claimant had
fully recovered from her work injury as of his
[independent medical examination]. Claimant admitted
that she had reported to her treating provider in
April 2014 that she no longer was having any problems
relative to her shoulder and neck, although she
maintained that she suffered a flare-up after returning to
full duty work for only one day. As of the hearing held
on July 15, 2014, Claimant admitted that she was no
longer having any problems moving her shoulder, as she
could lift her shoulder up and down, and that she
believed her problem was in the trapezius area and her
neck. As of the hearing on February 17, 2015, Claimant
now stated on cross-examination that her only ongoing
problem was in her shoulder.
44. The opinions of Dr. Raklewicz relative to his
diagnosis of Claimant’s March 11, 2014, work injury, as
well as his opinion that Claimant had fully recovered
from this work injury as of his evaluation on
August 11, 2014, are credible, logical, internally
consistent, and persuasive. This Judge was more
impressed with Dr. Raklewicz’s testimony and opinions
than the contrary testimony and opinions of Dr.
Levinstein. In this regard, this Judge was impressed with
Dr. Raklewicz’s explanation that Claimant’s objective
findings on her x-rays, CT scan, and MRI were normal.
Further, Dr. Raklewicz credibly described Claimant’s
normal physical and neurologic examination findings, as
well as Claimant’s non-physiologic findings during the
[independent medical examination]. Dr. Raklewicz
10
noted that if Claimant had a brachial plexus injury, he
would have expected to find abnormal range of motion of
the shoulder and neck, as well as evidence of weak
muscles or sensory problems. Dr. Raklewicz also
credibly and persuasively explained that Claimant’s
EMG studies are subjective and did not correlate with his
physical examination. Finally, Dr. Raklewicz credibly
and persuasively explained that if Claimant had a
brachial plexus injury he would have expected her
complaints to be constant and not come and go, although
Claimant’s therapy records in April 2014 indicated that
she had no pain in her shoulder.
45. The testimony and opinions of Dr. Levinstein is [sic]
accepted as credible and persuasive to the extent that it
[sic] establishes that Claimant’s work injury sustained on
March 11, 2014, also caused her to suffer a left shoulder
strain and caused her to require light duty restrictions
until August 10, 2014. To this extent, Dr. Levinstein’s
opinions are corroborated by Claimant’s accepted
testimony. To the extent that the opinions of Dr.
Levinstein conflict with those of Dr. Raklewicz, they are
rejected as less credible and persuasive. This Judge notes
that Dr. Levinstein relied on the subjective complaints
and findings of Claimant, who advised Dr. Levinstein
that she was driven to her appointments by her boyfriend.
Dr. Levinstein was also apparently not aware that
Claimant had no complaints of pain in her shoulder or
trapezius for most of April 2014, as documented in her
therapy records.
46. This Judge finds the testimony of David E. Cole is
accepted, as generally credible relative to his description
of the Employer’s modified duty program and his
description of Claimant’s return to work and cessation of
modified duty work after her work injury. Mr. Cole’s
testimony was not shaken on cross-examination.
(WCJ’s Decision at 14-15.) Based on these credibility determinations, the WCJ
concluded: (1) Claimant had met her burden of proving that her March 11, 2014
work-related injury caused her to sustain a left shoulder strain and a left elbow
contusion and to be temporarily, totally disabled from June 3, 2014, through
11
August 10, 2014; and (2) Employer had met its burden of proving that Claimant
had fully recovered from her work-related injury as of August 11, 2014. Claimant
appealed to the Board, which affirmed the WCJ’s decision. Claimant then
petitioned this Court for review.
On appeal,3 Claimant argues that the Board committed an error of law
in affirming the WCJ’s decision because the WCJ capriciously disregarded
substantial evidence of record that supports Claimant’s continuing disability after
August 11, 2014. More specifically, Claimant argues that “Dr. Levinstein’s
testimony offers the most substantial and credible evidence of Claimant’s work
injury and continuing symptoms and disability.” (Claimant’s Br. at 13.) Claimant
argues further that Dr. Raklewicz’s testimony fails to support Employer’s
termination petitions and is not competent because his opinions are premised, at
least in part, on inaccurate surveillance video that did not depict Claimant. While
Claimant frames her argument in terms of a capricious disregard of competent
evidence of record, we view Claimant’s argument as one of substantial evidence
and will address it as such in this opinion.4
3
This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§ 704.
4
Employer notes that in Claimant’s appeal to the Board, Claimant argued that the WCJ’s
decision was not reasoned, whereas Claimant now argues before this Court that the WCJ’s
decision was not supported by substantial evidence. While we acknowledge Employer’s
position, our review of the Board’s decision reveals that the Board addressed Claimant’s
substantial evidence argument when it concluded that the WCJ issued a reasoned decision and
that such decision was supported by substantial, competent evidence.
12
In workers’ compensation proceedings, the WCJ is the ultimate finder
of fact. Williams v. Workers’ Comp. Appeal Bd. (USX Corp.-Fairless Works),
862 A.2d 137, 143 (Pa. Cmwlth. 2004). As fact-finder, matters of credibility,
conflicting medical evidence, and evidentiary weight are within the WCJ’s
exclusive province. Id. If the WCJ’s findings are supported by substantial
evidence, they are binding on appeal. Agresta v. Workers’ Comp. Appeal Bd.
(Borough of Mechanicsburg), 850 A.2d 890, 893 (Pa. Cmwlth. 2004). It is
irrelevant whether there is evidence to support contrary findings; the relevant
inquiry is whether substantial evidence supports the WCJ’s necessary findings.
Hoffmaster v. Workers’ Comp. Appeal Bd. (Senco Prods., Inc.), 721 A.2d 1152,
1155 (Pa. Cmwlth. 1998).
To succeed in a termination petition, the employer bears the burden to
prove that the claimant’s disability has ceased and/or that any current disability is
unrelated to the claimant’s work injury. Jones v. Workers’ Comp. Appeal Bd.
(J.C. Penney Co.), 747 A.2d 430, 432 (Pa. Cmwlth.), appeal denied, 764 A.2d
1074 (Pa. 2000). An employer may satisfy this burden by presenting unequivocal
and competent medical evidence of the claimant’s full recovery from his
work-related injuries. Koszowski v. Workmen’s Comp. Appeal Bd. (Greyhound
Lines, Inc.), 595 A.2d 697, 699 (Pa. Cmwlth. 1991). Furthermore, in order to
terminate benefits, an employer must prove that all of a claimant’s work-related
injuries have ceased. Central Park Lodge v. Workers’ Comp. Appeal Bd.
(Robinson), 718 A.2d 368, 370 (Pa. Cmwlth. 1998).
Here, Claimant is essentially arguing that the WCJ’s decision is not
supported by substantial evidence because the testimony of Dr. Levinstein supports
a finding that Claimant has not fully recovered from her work-related injury, and
13
the WCJ should have accepted Dr. Levinstein’s testimony as more credible than
Dr. Raklewicz’s testimony. More specifically, Claimant argues that the testimony
of Dr. Raklewicz is not competent because it is based on inaccurate surveillance
evidence. Claimant’s arguments, however, demonstrate a lack of understanding
regarding what constitutes substantial evidence to support the WCJ’s findings.
First, while Dr. Levinstein opined that Claimant has not fully
recovered from her work-related injury and is only capable of returning to work in
a light duty capacity, Dr. Raklewicz opined that Claimant had fully recovered from
her work-related injury as of August 11, 2014. The WCJ credited Dr. Raklewicz’s
testimony over Dr. Levinstein’s testimony on the basis that Dr. Raklewicz:
(1) explained that Claimant’s objective findings on her x-rays, CT scan, and MRI
were normal; (2) described Claimant’s normal physical, neurologic, and
non-physiologic findings on examination; (3) noted that if Claimant had sustained
a brachial plexus injury, he would have expected to find abnormal range of motion
of the shoulder and evidence of weak muscles or sensory problems during his
physical examination; (4) explained that EMG studies are subjective and
Claimant’s EMG was not consistent with his physical examination; and
(5) explained that if Claimant had sustained a brachial plexus injury, he would
have expected her complaints to be constant. (WCJ’s Decision at 15.) Moreover,
the WCJ found that Dr. Levinstein relied on Claimant’s subjective complaints in
formulating his opinions and that Dr. Levinstein was not aware that Claimant had
no complaints of pain in her left shoulder or trapezius area for most of April 2014.
(Id.) In addition, the WCJ rejected Claimant’s testimony regarding her ongoing
disability after August 11, 2014, as not credible and persuasive based on Dr.
Raklewicz’s opinion that Claimant had fully recovered from her work-related
14
injury, as well as other factors such as that Claimant reported to her treating
provider in April 2014 that she was no longer having any problems with her
shoulder or neck. (Id. at 14-15.)
Second, there is no evidence that Dr. Raklewicz’s opinions were at all
based on the alleged inaccurate surveillance video. Dr. Raklewicz concluded that
Claimant had fully recovered from her work-related injury based on his review of
Claimant’s medical records and diagnostic testing and his physical examination,
without any regard to the video surveillance report. In fact, Dr. Raklewicz testified
that he did not even review the video surveillance report until sometime after he
performed his independent medical examination of Claimant and issued his report,
concluding that Claimant had fully recovered from her work-related injury.
In sum, the WCJ’s finding that Claimant had fully recovered from her
work-related injury as of August 11, 2014, is supported by substantial evidence
because Dr. Raklewicz opined that Claimant had fully-recovered from her
work-related left shoulder strain and left elbow contusion as of the date of his
independent medical examination on August 11, 2014. We stress that it does not
matter if there is evidence in the record that could support a finding contrary to that
made by the WCJ; the only inquiry is whether there is substantial evidence of
record to support the WCJ’s findings. Hoffmaster, 721 A.2d at 1155. The WCJ, as
the ultimate fact-finder, had the discretion to credit Dr. Raklewicz’s testimony over
Dr. Levinstein’s testimony. As a result, the Board properly concluded that the
WCJ’s decision granting Employer’s termination petitions was supported by
substantial evidence.
15
For the above stated reasons, we affirm the Board’s decision.
P. KEVIN BROBSON, Judge
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Crystal Yeakley, :
Petitioner :
:
v. : No. 500 C.D. 2016
:
Workers’ Compensation Appeal Board :
(BBU, Inc./Bimbo Bakeries USA; :
Indemnity Insurance Company :
of North America and ESIS :
Northeast WC Claims), :
Respondents :
ORDER
AND NOW, this 6th day of January, 2017, the order of the Workers’
Compensation Appeal Board is hereby AFFIRMED.
P. KEVIN BROBSON, Judge