K. Parks v. Urban Outfitters, Inc. (WCAB) ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Khary Parks, :
Petitioner :
: No. 931 C.D. 2020
v. : No. 932 C.D. 2020
:
Urban Outfitters, Inc. (Workers’ : Submitted: March 25, 2022
Compensation Appeal Board), :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: August 11, 2023
In these consolidated appeals, Khary Parks (Claimant) petitions for review
of the September 10, 2020 Orders of the Workers’ Compensation Appeal Board
(Board). The Board affirmed the Workers’ Compensation Judge’s (WCJ) Decisions
which (1) granted, in part, Claimant’s Claim Petitions, and (2) granted the Termination
Petitions filed by Urban Outfitters, Inc. (Employer). Upon review, we affirm.
I. FACTS AND PROCEDURAL HISTORY
Claimant was injured during the course and scope of his work as a line
cook for Employer on August 22 and 26, 2018, when he slipped and fell on a wet floor.
Employer accepted the work-related injury via a Notice of Temporary Compensation
Payable (NTCP) that described Claimant’s injury as a “low back contusion.”
(Reproduced Record (R.R.) at 3a.) On September 5, 2018, Claimant filed two Claim
Petitions alleging injuries to his neck, arms, and mid and lower back, resulting in total
disability as of August 26, 2018. (R.R. at 3a-7a, 8a-12a.) Employer timely filed
Answers to both Claim Petitions on September 17, 2018, denying all allegations. (R.R.
at 14a-22a.) On November 20, 2018, Employer filed two Termination Petitions
alleging that as of October 25, 2018, Claimant had fully recovered from the work-
related injuries per the opinions of Dr. Scott Rushton. (R.R. at 123a-24a.) Claimant’s
two Claim Petitions and Employer’s Termination Petitions were consolidated for
hearing.
Before the WCJ, Claimant testified live at the May 21, 2019 hearing and
submitted a copy of his November 12, 2018 deposition transcript. At his deposition,
Claimant testified that, after the initial fall on August 22, 2018, he reported the incident
to his supervisor, who gave him the choice of doctors but directed him to a Patient First
treatment center across the street from Employer. (R.R. at 55a.) Patient First provided
Claimant with a restriction note for Employer, which stated that Claimant could not
bend or twist his back and could not lift over 10 pounds. (R.R. at 56a, 114a-15a.)
Claimant returned to work for his next shift and went back to Patient First again on
August 25, 2018. (R.R. at 56a-57a.) During that visit to Patient First, the doctor
provided Claimant with another restriction note for Employer, which provided that
Claimant could not lift more than 20 pounds but could bend and twist. (R.R. at 57a,
115a.) On August 26, 2018, Claimant fell again at work and notified his direct
supervisor, Ryan Bloome, but continued working his shift. (R.R. at 59a-60a.)
Claimant did not go to Patient First that same day and instead went the following day
on August 27, 2018. (R.R. at 60a.) Again, Patient First provided Claimant with a
restriction note for Employer, which stated he could not lift, push, pull, or carry greater
than 10 pounds, could not perform prolonged standing for more than five minutes, and
should rest and ice every hour as needed for pain. (R.R. at 61a, 118a-19a.) Claimant
2
returned to Patient First on August 30, 2018, and received an additional restriction note
for Employer. Id. Claimant stopped treatment with Patient First and instead was
treated by Employer’s doctor at Concentra Medical Center, which provided Claimant
with a restriction note dated September 6, 2018, that took him out of work. (R.R. at
62a-63a, 120a.) Claimant returned to Concentra and received a restriction note on
September 10, 2018, which provided that Claimant could not lift over 5 pounds, could
not push or pull over 10 pounds, could stand up to 3 hours per day, could not squat or
kneel, and could not reach above his shoulders or head. (R.R. at 63a,121a-22a.)
Claimant testified that on August 22, 2018, he was having occasional pain
due to several previous back injuries, caused by a car accident in 1997, a dance floor
falling on him in 2007, a second car accident in 2012, and a work injury in 2017. (R.R.
at 48a-50a.) Claimant stated that although he had pain from his previous injuries when
he started working for Employer, it did not limit his work. (R.R. at 480a.) Claimant
further testified that in addition to his low back and leg pain, he has intermittent neck
pain in his shoulders. (R.R. at 104a.) Claimant testified that Employer offered him a
light-duty job scooping risotto balls. (R.R. at 80a, 484a.) Claimant attempted the
risotto job but only lasted 45 minutes because “it was just too much,” and told Steven
Linneman, Employer’s Culinary Director, of his difficulties performing the job. Id.
Claimant stated he was never offered another light-duty job. Id. Claimant indicated
he did not feel capable of performing his full-duty or light-duty job. (R.R. at 67a-68a.)
Claimant stated that he had surgery on his lumbar spine on April 22, 2019, with Dr.
Christian Fras, and since then felt sore and used a cane. (R.R. at 489a, 493a.) Claimant
also testified of his difficulties after the work incidents, stating that he was evicted due
to his unemployment. (R.R. at 70a.)
3
Claimant submitted the February 27, 2019 deposition transcript of Dr.
Mario Littman, who began treating him on October 12, 2018. Dr. Littman diagnosed
post-traumatic syndrome with acute cervical sprain, acute dorsal sprain, acute
lumbosacral sprain with exacerbation, and contusion of shoulders, and ruled out
radiculopathy. (R.R. at 164a.) Dr. Littman prescribed massage, hot packs, and
exercises. (R.R. at 165a.) Claimant also presented the May 13, 2019 deposition
testimony of Dr. Fras, who began treating Claimant on February 19, 2019. On April
22, 2019, Dr. Fras performed a lumbar laminectomy and decompression surgery, a
lumbar fusion at L4-5 and L5-S1, and removed disc herniation at both levels and
stabilized the spine by placing screws and a rod along with a bone graft. (R.R. at 388a-
89a.) Dr. Fras stated that Claimant was incapable of returning to any type of work
activity while under his care. (R.R. at 393a.)
Employer presented the March 22, 2019 deposition testimony of Ryan
Bloome, who was Claimant’s direct supervisor and witnessed both of Claimant’s falls.
(R.R. at 229a-33a.) Mr. Bloome testified that after the first fall, Claimant was treated
at Patient First and received a treatment/restriction note, which he and Claimant
reviewed to ensure Claimant’s work was within the restrictions. (R.R. at 233a-34a.)
After the second fall, Claimant finished his shift that day, and the next day reported to
work and finished his shift but complained of pain. (R.R. at 235a-37a.) After his shift,
Claimant returned to Patient First and received another treatment note. (R.R. 237a-
38a.)
Employer presented the March 22, 2019 deposition testimony of Steven
Linneman, who did not personally witness Claimant’s falls, but met with Claimant to
review his work restrictions from Patient First. (R.R. at 265a.) On August 31, 2018,
Mr. Linneman met with Claimant to review his work restriction, specifically not being
4
able to stand for more than five minutes, and offered him a light-duty job scooping
risotto balls. (R.R. at 270a-73a.) Mr. Linneman provided Claimant with two tables –
a low table with a stool and an identical high table so Claimant could sit and stand.
(R.R. at 272a.) Mr. Linneman testified that it was another employee’s job to lift the
risotto ball trays once Claimant completed the scooping. (R.R. at 273a.) Claimant
worked the risotto job for 45 minutes and left because he “was in too much pain to do
the sitting and standing routine,” but he did not seek medical attention. Id. On
September 12, 2018, Mr. Linneman told Claimant during a phone call that both full-
duty and light-duty work remained available to Claimant. (R.R. at 274a-75a.)
Lastly, Employer presented the March 28, 2019 deposition transcript of
Dr. Scott Rushton, who performed an independent medical examination (IME) of
Claimant on October 25, 2018. Dr. Rushton stated that, during the IME, Claimant
complained of low-back, mid-back, and neck pain. (R.R. at 296a.) Dr. Rushton opined
that if Claimant had a work-related injury from the August 2018 falls, it was limited to
a cervical and lumbar spine strain and sprain. (R.R. at 301a-03a.) He opined that
Claimant had no lasting restrictions related to the fall, and there were no objective
findings to substantiate any of Claimant’s subjective complaints. (R.R. at 303a.) Dr.
Rushton indicated that Claimant could return to full duty with no restrictions. (R.R. at
303a-04a.) Dr. Rushton confirmed that Claimant’s current issues are unrelated to the
August 2018 falls. (R.R. at 304a-07a.) Based upon the IME, Dr. Rushton opined,
within a reasonable degree of medical certainty, that Claimant’s spine surgery with Dr.
Fras was not necessary for his August 2018 work injuries. (R.R. at 312a-13a.)
The WCJ found that Claimant fell on August 22 and 26, 2018, and
sustained an injury. (WCJ’s Decision at 13.) The WCJ did not find Claimant’s
testimony credible that he was homeless as a result of the injury, that he was unable to
5
work a light-duty job, or that the injury required surgery. (WCJ’s Decision at 14.) The
WCJ based her conclusions on her “personal observations of Claimant’s affect and
demeanor during his live testimony.” Id. The WCJ found Mr. Linneman’s and Mr.
Bloome’s testimony to be credible. Id. The WCJ found that although Claimant alleged
Employer would not accommodate his restrictions, Employer offered him a light-duty
job that permitted him to sit or stand as needed. Id. Although Claimant testified that
he needed the income from work, Claimant did not perform the light-duty job beyond
45 minutes. Id. The WCJ also found that Claimant’s eviction proceedings started well
before the August 2018 falls and was not a result of his work injury. Id. The WCJ
accepted Dr. Rushton’s opinions over those of Dr. Fras and Dr. Littman because the
diagnostic studies did not show any significant changes over the course of time and the
studies performed within only a few weeks of the injuries revealed no traumatic
findings. Id. The WCJ found that Claimant had fully recovered as of October 25, 2018,
and that his remaining medical issues were unrelated to the August 2018 work
incidents. Id.
The WCJ concluded that Claimant failed to meet his burden, that
Employer had met its burden, and that Employer presented a reasonable contest. Id.
The WCJ accordingly granted, in part, Claimant’s Claim Petitions to the extent
Claimant “sustained a lumbar spine contusion and sprain” and concluded that medical
benefits are payable until the date of Dr. Rushton’s IME. (WCJ’s Decision at 15.) The
WCJ denied Claimant’s Claim Petitions in all other respects. Id. Additionally, the
WCJ granted Employer’s two Termination Petitions effective October 25, 2018. Id.
Claimant appealed to the Board, which affirmed.
Claimant now appeals to this Court.
6
II. ISSUES1
On appeal,2 Claimant presents the following five issues:
(1) Whether the WCJ capriciously disregarded
uncontroverted evidence.
(2) Whether Employer’s medical expert’s opinions were
incompetent and/or contradicted by the overwhelming
evidence in the record.
(3) Whether the WCJ’s credibility determinations were
sufficiently reasoned.
(4) Whether the WCJ failed to address Employer’s
deficient Answer to Claimant’s Claim Petitions.
(5) Whether a remand is necessary, should Claimant be
successful in whole or in part on any issue, to calculate
Claimant’s workers’ compensation rate, award of counsel
fees, and reimbursement of litigation costs.
(Claimant’s Br. at 3.)
III. DISCUSSION
A. Capricious Disregard
First, Claimant argues that the WCJ capriciously disregarded
uncontroverted evidence that Employer’s doctor imposed work restrictions, that
Employer knew of those work restrictions, and that Employer failed to offer him a job
within those restrictions. (Claimant’s Br. at 22.)
In a workers’ compensation proceeding, the WCJ is the ultimate factfinder
and the sole arbiter of credibility and weight of evidence. Rissi v. Workers’
1
We note that the format of Claimant’s brief is difficult to comprehend. Claimant lists cases
in bullet form and does not fully develop analysis supporting his argument with those cases. We will
review the cognizable arguments we can glean from Claimant’s brief.
2
Our review in a workers’ compensation appeal is limited to determining whether necessary
findings of fact are supported by substantial evidence, whether an error of law was committed, or
whether constitutional rights were violated. City of Scranton v. Workers’ Compensation Appeal
Board (Roche), 909 A.2d 485, 486 n.1 (Pa. Cmwlth. 2006).
7
Compensation Appeal Board (Tony DePaul & Son), 808 A.2d 274, 278-79 (Pa.
Cmwlth. 2002). If the facts as found by the WCJ rest on substantial evidence, they
may not be disturbed. Bartholetti v. Workers’ Compensation Appeal Board (School
District of Philadelphia), 927 A.2d 743, 747 (Pa. Cmwlth. 2007). It is irrelevant
whether the record contains evidence to support findings other than those made by the
WCJ; the critical inquiry is whether there is evidence to support the findings actually
made. Furnari v. Workers’ Compensation Appeal Board (Temple Inland), 90 A.3d 53,
60 (Pa. Cmwlth. 2014). The WCJ is free to accept or reject the expert testimony of any
witness, including a medical witness, in whole or in part. Riggle v. Workers’
Compensation Appeal Board (Precision Marshall Steel Co.), 890 A.2d 50, 57 n.11 (Pa.
Cmwlth. 2006). On appeal, the Board may review the nature of the evidence submitted
to determine if it is sufficient to state a claim; however, reinterpretation of the evidence
by the Board is in excess of its scope of review. Bartholetti, 927 A.2d at 747. Although
the Board must determine whether the WCJ’s findings have the requisite measure of
support in the record, findings of fact can be overturned only if they are arbitrary or
capricious. Lehigh County Vo-Tech v. Workmen’s Compensation Appeal Board
(Wolfe), 652 A.2d 797, 800 (Pa. 1995).
A capricious disregard of evidence occurs when the WCJ deliberately or
baselessly disregards apparently trustworthy evidence. Williams v. Workers’
Compensation Appeal Board (USX Corporation-Fairless Works and USX Corp.), 862
A.2d 137, 144 (Pa. Cmwlth. 2004). Where there is substantial evidence to support a
WCJ’s findings, and those findings support the WCJ’s legal conclusions, it should
remain a rare instance in which an appellate court would disturb an adjudication based
upon capricious disregard. Leon E. Wintermyer, Inc. v. Workers’ Compensation
Appeal Board (Marlowe), 812 A.2d 478, 487 n.17 (Pa. 2002). Where the WCJ
8
discusses the evidence in question, but rejects it as less credible or assigns it less
evidentiary weight than other evidence, the WCJ’s determination does not constitute a
capricious disregard of evidence. Reed v. Workers’ Compensation Appeal Board
(Allied Signal Inc.), 114 A.3d 464, 471 (Pa. Cmwlth. 2015). Unless made arbitrarily
or capriciously, a WCJ’s credibility determinations will not be disturbed when the basis
for such is present in the record on appeal. Empire Steeling Castings, Inc. v. Workers’
Compensation Appeal Board (Cruceta), 749 A.2d 1021, 1027 (Pa. Cmwlth. 2000).
An employer bears the burden of proving that suitable employment is
available within the claimant’s medical restrictions. Furnari, 90 A.3d at 71. A position
is “actually available” if it can be performed by the claimant, considering his physical
restrictions and limitations, age, intellectual capacity, education, previous work
experience, and other relevant considerations. Id.Instantly, we are only concerned with whether the light-duty job scooping
risotto was actually available to Claimant, as Claimant argues Employer never offered
a light-duty job within his restrictions. Contrary to Claimant’s contention, the evidence
pertaining to Employer’s knowledge of Claimant’s work restrictions and light-duty job
was not “uncontroverted.” The WCJ made the following findings regarding Claimant’s
light-duty position.
Claimant sustained work[-]related sprains/strains/contusions
on August 22 and 26, 2018[,] which resulted in light[-]duty
restrictions. Employer offered light[-]duty work within his
restrictions and Claimant failed to continue working in that
capacity. Claimant was fully recovered from his work-related
diagnoses as of October 25, 2018. The remainder of
Claimant’s medical issues were unrelated to the work injuries
and [were] [preexisting] and long[-]standing and led to
surgery with Dr. Fras.
(WCJ’s Decision at 14.) The WCJ credited the testimony of Mr. Bloome and Mr.
Linneman, who stated that Employer was aware of Claimant’s injuries, was aware of
9
his restrictions, met with Claimant to discuss his restrictions, and offered him a light-
duty position where he could sit at a low table or stand at a high table to prepare food.
(WCJ Decision at 12-13.) The WCJ found that Claimant only attempted the light-duty
job scooping risotto for 45 minutes, chose not to seek medical attention after leaving
work, and failed to continue working that job. Id. The WCJ simply credited
Employer’s witnesses and did not credit Claimant or his witnesses on this issue, which
is not tantamount to a capricious disregard of any evidence. Reed, 114 A.3d at 471.
Moreover, whether Claimant was offered a light-duty job that was within
his work restrictions is irrelevant to whether he had fully recovered as of the October
25, 2018 IME. The WCJ granted Claimant’s Claim Petitions through the date of the
IME, and granted Employer’s Termination Petitions. Dr. Rushton testified that as of
October 25, 2018, Claimant had fully recovered from his work-related injuries and was
capable of returning to full-duty work. (R.R. at 303a-04a.) Hence, the WCJ granted
Employer’s Termination Petitions as of October 25, 2018.
Accordingly, we conclude the WCJ did not disregard uncontroverted
evidence. Rather, the WCJ made credibility findings which was within her purview.
B. Medical Expert Opinion Incompetent
From what the Court can surmise from Claimant’s brief, Claimant is
arguing that because Dr. Rushton saw no past treatment records, the operative report
from Claimant’s spine surgery, or the computerized tomography (CT) and discogram,
his medical opinions were incompetent. (Claimant’s Br. at 17).
Although the WCJ has exclusive province over questions of credibility
and evidentiary weight, “the question of competency of the evidence is one of law and
fully subject to our review.” Cerro Metal Products Co. v. Workers’ Compensation
Appeal Board (Plewa), 855 A.2d 932, 937 (Pa. Cmwlth. 2004). It is well established
10
that “[c]ompetency when applied to medical evidence, is merely a question of whether
the [witness’s] opinion is sufficiently definite and unequivocal to render it admissible.”
Id. “[M]edical evidence is unequivocal as long as the medical expert, after providing
a foundation, testifies that in his professional opinion he believes or thinks the facts
exist.” Id. Further, “[e]ven if the witness admits to uncertainty, reservation, doubt or
lack of information with respect to scientific or medical details, as long as the witness
does not recant the opinion first expressed, the evidence is unequivocal.” Id.Additionally, “the fact that a medical expert does not have all of a claimant’s medical
records goes to the weight given the expert’s testimony, not competency.” Marriott
Corp. v. Workers’ Compensation Appeal Board (Knechtel), 837 A.2d 623, 631 n.10
(Pa. Cmwlth. 2003).
Here, the crux of Claimant’s argument is that Dr. Rushton’s testimony
was not competent because he relied only upon records dated after the August 2018
falls. (Claimant’s Br. at 13.) Based on our review of Dr. Rushton’s deposition
transcript, we conclude that his testimony was competent as a matter of law. First, Dr.
Rushton’s opinion was “sufficiently definite and unequivocal to render it admissible.”
Cerro Metal Products, 855 A.2d at 937. In his deposition, Dr. Rushton testified that
he first saw Claimant relative to his August 2018 work injuries on October 25, 2018.
(R.R. at 293a.) Dr. Rushton testified that Claimant’s work injury aggravated his
cervical/lumbar spine strain and sprain. (R.R. at 301a-02a.) On cross-examination,
Dr. Rushton did not waiver in his opinion that the work injury caused by the August
2018 falls ceased by the October 25, 2018 IME. Accordingly, Dr. Rushton’s testimony
was sufficiently unequivocal.
Second, while Dr. Rushton did not have all of Claimant’s medical records,
when “viewed as a whole,” Dr. Rushton did not base his opinion solely “on inaccurate
11
or false information.” American Contracting Enterprises v. Workers’ Compensation
Appeal Board (Hurley), 789 A.2d 391, 396 (Pa. Cmwlth. 2001). Here, Dr. Rushton
admitted that he did not have physical records from Claimant’s medical history pre-
injury. However, Dr. Rushton took a full medical history from Claimant during the
IME. Dr. Rushton testified that
[Claimant] told [him] in 2007 he had low back pain when he
was working at Bryn Mawr College when he had an injury
related to a dance floor. Apparently[,] the dance floor fell
directly on top of him while working at Bryn Mawr College.
He told me he was receiving no active treatment for his low
back at the time of the August 2018 slip and fall.
He also reported though [sic] the closer injury of 2017 when
he reported lifting something and also sustained an additional
low back injury. He told me that he received two to three
Cortisone injections and believes after the third injection he
felt improvement and that was related to the 2017 incident.
His lower back treatment following that accident of 2017 was
guided by the Premier Orthopedic Group according to his
history.
(R.R. at 294a-95a.) Dr. Rushton also reviewed the May 18, 2017 lumbar magnetic
resonance imaging (MRI) report, the January 15, 2019 cervical and lumbar MRI, and
the March 15, 2019 CT scan of his lumbar spine. (R.R. at 317a.) Dr. Rushton
compared the pre-injury and post-injury studies and opined that there were no acute or
traumatic findings. (R.R. at 305a.) Dr. Rushton indicated that Claimant had a
preexisting degenerative spine disease and there were no findings in the 2017 MRI that
would indicate the August 2018 falls were or could be attributed to trauma. (R.R. at
305a-06a.) Since Dr. Rushton’s testimony was not based solely on inaccurate
information, Claimant’s argument that Dr. Rushton’s testimony was incompetent lacks
merit. Claimant merely seeks to have us reweigh the evidentiary determinations made
12
by the WCJ, which we may not do because such determinations are within the exclusive
province of the WCJ as the factfinder and not subject to review on appeal. Cerro Metal
Products, 855 A.2d at 937.
C. WCJ’s Reasoned Decision
Next, Claimant argues that the decision by the WCJ was not a “reasoned
decision” because the WCJ’s reasons for crediting the testimony of Dr. Rushton cannot
provide the basis for a reasoned decision. Claimant also argues that the testimony of
Claimant’s medical experts was rejected “for irrational reasons, unsupported by the
Record.” (Claimant’s Br. at 38.)
Section 422(a) of the Workers’ Compensation Act3 provides, in pertinent
part, that all parties in a workers’ compensation case are “entitled to a reasoned decision
containing findings of fact and conclusions of law based upon the evidence as a whole
which clearly and concisely states and explains the rationale for the decisions so that
all can determine why and how a particular result was reached.” 77 P.S. § 834. The
decision of the WCJ is “reasoned” if it allows for meaningful appellate review without
further elucidation. Daniels v. Workers’ Compensation Appeal Board (Tristate
Transportation), 828 A.2d 1043, 1052 (Pa. 2003). To satisfy this standard, the WCJ
does not need to discuss every piece of evidence in the record. Dorsey v. Workers’
Compensation Appeal Board (Crossing Construction Co.), 893 A.2d 191, 193 n.3 (Pa.
Cmwlth. 2006).
Where medical experts have testified solely by deposition, resolution of
conflicting medical testimony cannot be supported by a mere statement that one expert
was deemed more credible than another. Daniels, 828 A.2d 1053. While the WCJ is
the sole arbiter of credibility and evidentiary weight, she must provide an adequate
3
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.1, 2501-2710.
13
basis for rejecting a witness’s testimony when he does not testify live before the WCJ.
Id. at 1052-53. “[S]ome articulation of the actual objective basis for the credibility
determination must be offered for the decision to be a ‘reasoned’ one which facilitates
effective appellate review.” Id. at 1053. When the WCJ reviews a deposition transcript
of a medical expert, the WCJ must articulate an actual objective basis in support of any
corresponding credibility determination in order to permit effective appellate review.
Gumm v. Workers’ Compensation Appeal Board (Steel), 942 A.2d 222, 228 (Pa.
Cmwlth. 2008). Further, the “reasoned decision [standard] does not require the WCJ
to give a line-by-line analysis of each statement by each witness, explaining how a
particular standard affected the ultimate decision.” Id. Thus, “[u]nless made arbitrarily
or capriciously, [the] WCJ’s credibility determinations will be upheld on appeal.” Id.Here, the WCJ clearly outlined the evidence considered and the credibility
determination made as well as the reasons underlying her ultimate determination that
Claimant’s injury had resolved by October 25, 2018. As to the medical evidence
presented, the WCJ explained the reasons that she credited Dr. Rushton’s testimony as
it related to the cause of Claimant’s injury/disability because the “diagnostic studies
did not show any significant changes over the course of time and the diagnostic studies
performed within only a few weeks of the injuries revealed no traumatic findings.”
(WCJ’s Decision at 14.) Moreover, the WCJ explained her credibility findings for each
witness, including Claimant, who testified at the hearing and by deposition. The WCJ
credited Claimant’s testimony, in part, regarding Claimant’s August 2018 falls and
injuries. The WCJ discredited Claimant’s testimony regarding lasting effects of his
injuries due to the WCJ’s personal observations of Claimant’s affect and demeanor
during his live testimony and also because the remainder of Claimant’s evidence did
not support his allegations. Id. The WCJ credited Mr. Bloome and Mr. Linneman’s
14
testimony regarding the falls because they both supported Claimant’s testimony in that
regard. Id. The WCJ credited Dr. Rushton’s testimony over Dr. Fras’ and Dr.
Littman’s testimony because his testimony was more credible and persuasive as it
pertained to Claimant’s disability and condition. Id. The WCJ further determined that
Claimant’s medical issues were unrelated to his August 2018 falls and instead were
preexisting and long-standing which led to his surgery with Dr. Fras. Id.Accordingly, the WCJ adequately articulated the actual objective basis for
her credibility determinations. Therefore, we conclude that Claimant’s challenge is
without merit.
D. Employer’s Answer to Claim Petition
Claimant contends that the WCJ and Board erred by failing to address the
“relevance and consequence of [Employer’s] deficient Answer[s] to the Claim
Petition[s].” (Claimant’s Br. at 3.) Claimant argues that simply stating that an
“[a]llegation is specifically denied with strict proof demanded at time of trial” is an
inadequate response.
Section 416 of the Act, in pertinent part, states:
Every fact alleged in a claim petition not specifically
denied by an answer so filed by an adverse party shall be
deemed to be admitted by him. But the failure of any party
or of all of them to deny a fact alleged in any other petition
shall not preclude the [WCJ] before whom the petition is
heard from requiring, of his own motion, proof of such fact.
If a party fails to file an answer and/or fails to appear in person
or by counsel at the hearing without adequate excuse, the
[WCJ] hearing the petition shall decide the matter on the basis
of the petition and evidence presented.
77 P.S. § 821 (emphasis added). Specific denial requires that the employer denies each
and every factual allegation by the claimant. See St. Denis v. Workmen’s Compensation
Appeal Board, 371 A.2d 252, 253 (Pa. Cmwlth. 1977) (“We agree that a defendant
15
must specifically deny factual allegations in a claim petition.”); General Electric Co.
v. Workmen’s Compensation Appeal Board (Valsamaki), 593 A.2d 921, 923 (Pa.
Cmwlth. 1991) (“[E]very fact alleged in a claim petition not specifically denied by an
answer shall be deemed to be admitted.”). The specific denial to a particular factual
allegation identifies the “cognizable issues” for review by the WCJ. General Electric,
593 A.2d at 923. In identifying the “cognizable issues” for review, the specific denial
need not proffer specific evidence against the factual allegation but only identify the
factual allegation being denied with a sentence stating the employer’s answer. Leber
v. Workmen’s Compensation Appeal Board (Yellow Freight Sys.), 628 A.2d 481, 496
(Pa. Cmwlth. 1993). A satisfactory specific denial may be written as: “12. Specifically
denied and strict proof demanded” when a claimant outlines his individual allegations
numerically because the WCJ is notified to what particular factual allegation the
employer is specifically denying which enables the WCJ to develop the record on that
issue. Id.; see also General Electric, 593 A.2d at 923.
Here, Employer indicated in its Answers that “[a]llegation is specifically
denied with strict proof demanded at the time of trial.” (R.R. at 14a-16a.) Employer
did not simply make this response in each paragraph of its Answers, but instead made
it to each and every fact alleged in Claimant’s Petitions that Employer disputed. As
such, we conclude that Employer’s Answers were satisfactory because the specific
denial was sufficient to raise the issue of notice, which the WCJ properly addressed at
the hearing.
16
IV. CONCLUSION
For the foregoing reasons, the Board’s decision is affirmed.4
________________________________
PATRICIA A. McCULLOUGH, Judge
4
Due to our disposition, we need not address Claimant’s final issue regarding whether a
remand is necessary for further proceedings.
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Khary Parks, :
Petitioner :
: No. 931 C.D. 2020
v. : No. 932 C.D. 2020
:
Urban Outfitters, Inc. (Workers’ :
Compensation Appeal Board), :
Respondent :
ORDER
AND NOW, this 11th day of August, 2023, the September 10, 2020
Orders of the Workers’ Compensation Appeal Board are hereby AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge