M. Terrinoni v. WCAB (Wawa, Inc.)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael Terrinoni, :
Petitioner :
:
v. : No. 1353 C.D. 2016
: Submitted: December 9, 2016
Workers' Compensation Appeal :
Board (Wawa, Inc.), :
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE JULIA K. HEARTHWAY, Judge
HONORABLE JOSEPH M. COSGROVE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: April 4, 2017
Michael Terrinoni (Claimant) petitions for review from an order of the
Workers’ Compensation Appeal Board (Board) that affirmed a decision of a
Workers’ Compensation Judge (WCJ) that denied his claim petition in which
Claimant alleged he suffered an aggravation of his lower back condition. Claimant
primarily challenges the bases for the WCJ’s credibility determinations. Upon
review, we affirm.
I. Background
Claimant worked for WAWA, Inc. (Employer) as a “CIP” (or “clean
in place”) receiver. WCJ’s Op., 9/4/15, Finding of Fact (F.F.) No. 7(a). In
September 2012, Employer issued a notice of temporary compensation payable
(NTCP) for an August 2012 injury described as an “acute left low back strain” that
occurred when Claimant “twisted” in order to connect a hose to a tank. F.F. No. 2.
The NTCP subsequently converted to a notice of compensation payable.
In January 2013, Employer issued a notification of suspension or
modification effectively suspending Claimant’s wage loss benefits as of January
22, 2013, because Claimant returned to work at earnings equal to or greater than
his pre-injury earnings.
In January 2015, Claimant filed a claim petition, alleging that after his
return to work, he sustained a new injury to his low back on July 18, 2013, in the
nature of an aggravation. He sought ongoing indemnity benefits as of December
2013, as well as payment of his medical bills and attorney fees. Employer filed an
answer denying the material allegations. A hearing ensued before a WCJ.
At the hearing, Claimant testified he worked for Employer as a CIP
receiver. His job involved hooking up different line circuits to milk silos in order
to clean the silos. In August 2012, while hooking up the supply line to wash a silo,
Claimant experienced pain in his leg and the left side of his back. Claimant missed
one day of work and then returned to light duty. Thereafter, in January 2013,
Claimant returned to a full-duty position, which included cleaning silos and
making tea and chocolate and strawberry milk. This position required him to lift
and pour 25 and 50 pound bags of mix into the mixers. Claimant testified that his
pain gradually became worse while performing this job. He continued to perform
his full duty job until July 2013, when his physician restricted him to light duty
work. Claimant continued to perform light duty work until he underwent surgery
2
in December 2013. He has not worked since that date. Claimant testified that he
underwent a second surgery in February 2014. Claimant further testified that he
did not feel capable of returning to work on a full-time basis in any capacity
because he continued to experience significant leg pain.
In support of his claim petition, Claimant presented the deposition
testimony of Robert Sing, D.O. (Claimant’s Physician), who is board-certified in
family practice, sports medicine and emergency medicine. Claimant’s Physician
began treating Claimant in July 2013. Based on Claimant’s history and physical
examination, as well as a review of Claimant’s medical records, Claimant’s
Physician diagnosed lower back pain and left piriformis syndrome with associated
left sciatica, which, he opined, was related to Claimant’s August 2012 work injury.
Claimant’s Physician noted Claimant underwent two surgeries for his injury, and
his condition did not improve. Based on an MRI, Claimant’s Physician opined
Claimant developed a lumbar disc herniation as a result of his return to full duty
work with an already injured back. He further opined that Claimant’s August 2012
work injury was a substantial, contributing factor to his need for surgery in 2013.
Claimant’s Physician explained his current diagnoses were failed lumbar surgical
syndrome, status post fusion, status post L5-S1 disc herniation, and left S1
radiculopathy with reflex changes and left piriformis syndrome with associated
lumbar strain and sprain. Claimant’s Physician testified Claimant’s injury began in
August 2012 and progressed over the following year-and-a-half until the December
2013 surgery through over-utilization, which was required for his job description.
Claimant’s Physician opined Claimant is not capable of performing his regular job,
3
but he could perform sedentary work with significant restrictions on lifting,
pulling, pushing, and nothing repetitive in the upper and lower extremities.
Claimant also submitted the deposition testimony of Christian Fras,
M.D. (Claimant’s Orthopedist), a board-certified orthopedic surgeon, who began
treating Claimant in November 2013. Based on a history, a physical examination
and his review of one of Claimant’s MRI studies, Claimant’s Orthopedist opined
Claimant showed evidence of symptomatic lumbar disc herniation and
radiculopathy. Claimant’s Orthopedist subsequently reviewed a November 2013
MRI study, and he opined Claimant had a disc herniation at L5-S1. In December
2013, Claimant underwent an L5-S1 laminectomy and discectomy, as well as an
L5-S1 fusion. A subsequent MRI showed that a bone graft that was placed in the
disc space during surgery became displaced and was in the spinal canal pressing on
the nerves. As a result, Claimant underwent a second surgery in February 2014.
Claimant’s Orthopedist’s diagnoses were lumbar disc herniation and an
aggravation of lumbar degenerative disc disease. He opined Claimant’s August
2012 injury was a substantial, contributing factor to his condition. Claimant’s
Orthopedist further opined Claimant was not capable of working full capacity, but
he could work in a sedentary to light-duty position. Claimant’s Orthopedist opined
Claimant could return to work initially on a part-time basis to determine if he is
able to tolerate the work.
Claimant also presented the deposition testimony of Scott Sexton,
M.D. (Dr. Sexton), who performed an independent medical examination of
Claimant in August 2013. Based on the records he received, the examination he
4
performed and the history Claimant provided, Dr. Sexton opined Claimant suffered
left hip piriformis syndrome and left hip meralgia paresthetica, which he attributed
to the August 2012 work injury. Dr. Sexton acknowledged his diagnoses were
based primarily on Claimant’s subjective complaints.
In opposition to the claim petition, Employer submitted the deposition
testimony of Richard Schmidt, M.D. (Employer’s Orthopedist), who is board-
certified in orthopedic surgery. Employer’s Orthopedist examined Claimant in
July 2014 at which time he obtained a history. Employer’s Orthopedist opined that
Claimant sustained a left thigh and low back strain as a result of the August 2012
injury. This diagnosis was based on the history Claimant provided, the fact that
the MRI studies done after the event showed no evidence of a disc herniation and
upon Employer’s Orthopedist’s physical examination of Claimant. Employer’s
Orthopedist testified he had the opportunity to compare Claimant’s September
2012 MRI with Claimant’s November 2013 MRI side-by-side, and he testified that
the studies were identical. He further testified that he observed no indication that
Claimant sustained a disc herniation at work after August 22, 2012. As such, he
would not have performed surgery on Claimant. Assuming Claimant had a disc
herniation, Employer’s Orthopedist opined Claimant fully recovered and the most
recent MRI (from June 2014) showed no evidence of a disc herniation.
Additionally, in September 2014, Employer filed a termination
petition, and Claimant filed a review petition seeking to expand the description of
the injury. Ultimately, in June 2015, the WCJ amended the description of
5
Claimant’s work injury to include a left thigh strain, and the WCJ terminated
benefits as of July 30, 2014.1
Thereafter, in September 2015, the WCJ issued a decision denying
Claimant’s January 2015 claim petition (alleging a low back aggravation injury in
July 2013), the decision directly at issue here. In particular, the WCJ rejected
Claimant’s testimony as “less than credible” based on his demeanor and because
his testimony was inconsistent with the opinion of his medical expert, Claimant’s
Orthopedist, regarding Claimant’s ability to return to sedentary to light duty work.
F.F. No. 16(a). The WCJ also rejected Claimant’s Orthopedist’s testimony, noting
that Claimant’s Orthopedist did not review the film of the MRI performed in 2012,
and unlike Employer’s Orthopedist, he did not perform a side-by-side comparison
of the MRI performed in 2012 and the MRI performed in 2013, and Claimant’s
Orthopedist could not specify when Claimant’s disc herniation may have occurred.
The WCJ also noted that Claimant’s Orthopedist did not review Claimant’s job
duties, and Claimant did not report any incident other than the August 2012 work
injury. Therefore, the WCJ found Claimant’s Orthopedist’s opinion testimony was
speculative.
In addition, the WCJ rejected the testimony of Claimant’s Physician,
noting his testimony was contrary to established findings and credibility
determinations made by the WCJ in his decision on the review and termination
petitions. Additionally, the WCJ accepted the testimony of Dr. Sexton only to the
1
Claimant’s appeal of the review petition/termination petition decision, which pertained
to the original “acute left low back strain” injury of August 2012, is currently pending before this
Court at Docket No. 1792 C.D. 2016.
6
extent that he opined Claimant’s 2012 MRI was normal, and, therefore, there was
no need to perform surgery on Claimant’s lumbar spine and no need for ongoing
medical treatment. However, the WCJ rejected Dr. Sexton’s opinion concerning
his diagnoses of left hip piriformis syndrome and left hip meralgia paresthetica
because the WCJ previously rejected those opinions in his prior decision on the
review and termination petitions in which the WCJ determined Claimant’s August
2012 injury was limited to a left thigh strain and a lower back strain. Finally, the
WCJ credited Employer’s Physician’s opinion, noting he was the only orthopedic
surgeon to view and compare Claimant’s 2012 and 2013 MRI films.
Based on these findings and determinations, the WCJ denied
Claimant’s claim petition. In particular, the WCJ concluded Claimant did not meet
his burden of proving he sustained a work injury on July 18, 2013, or that his work
activities up until that date aggravated his August 2012 work injury. Claimant
appealed to the Board, which affirmed.
More specifically, the Board determined that, based on the WCJ’s
credibility determinations, Claimant could not meet the burden of proof on his
claim petition. The Board also rejected Claimant’s argument that the WCJ’s
summary of the evidence contained substantial omissions, inconsistencies, and
instances in which testimony was taken out of context. In so doing, the Board
noted the WCJ was only required to make critical findings of fact on all issues
necessary for appellate review, which the WCJ did here. Claimant now petitions
for review to this Court.
7
II. Issues
On appeal,2 Claimant argues the Board did not identify the correct
standard of review, which required it to set aside the WCJ’s decision where the
WCJ could not logically reach the conclusion he did based on the evidentiary
record as a whole. More specifically, Claimant asserts the Board did not recognize
that: (1) the WCJ’s decision, when considered in conjunction with the evidence as
a whole, represented a capricious abuse of fact-finding authority; and, (2) the
WCJ’s credibility determinations were based on an improper and illogical scheme.
Claimant’s argument relates solely to the bases for the WCJ’s credibility
determinations; he does not clearly challenge the remainder of the WCJ’s factual
findings. See Pet’r’s Br. at 11 (“In the present case, [C]laimant agrees that the
WCJ’s summary of evidence will reflect the excerpts of testimony related in his
[d]ecision do exist - albeit often out-of-context.”).
III. Discussion
At the outset, we note, as the ultimate fact-finder in workers’
compensation cases, the WCJ “has exclusive province over questions of credibility
and evidentiary weight ….” A & J Builders, Inc. v. Workers’ Comp. Appeal Bd.
(Verdi), 78 A.3d 1233, 1238 (Pa. Cmwlth. 2013). The WCJ may accept or reject
the testimony of any witness in whole or in part. Id.2
Our review is limited to determining whether the WCJ’s findings of fact were supported
by substantial evidence, whether an error of law was committed or whether constitutional rights
were violated. Phoenixville Hosp. v. Workers’ Comp. Appeal Bd. (Shoap), 81 A.3d 830 (Pa.
2013).
8
“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’ Comp.
Appeal Bd. (Temple Inland), 90 A.3d 53, 60 (Pa. Cmwlth. 2014) (citation omitted).
We examine the entire record to see if it contains evidence a reasonable person
might find sufficient to support the WCJ’s findings. Id. If the record contains such
evidence, the findings must be upheld, even though the record may contain
conflicting evidence. Id. Additionally, we must view the evidence in the light
most favorable to the prevailing party and give it the benefit of all inferences
reasonably deduced from the evidence. Id.A capricious disregard only occurs when the WCJ deliberately ignores
relevant, competent evidence. Capasso v. Workers’ Comp. Appeal Bd. (RACS
Assocs., Inc.), 851 A.2d 997 (Pa. Cmwlth. 2004). Capricious disregard of
evidence “is a deliberate and baseless disregard of apparently trustworthy
evidence.” Williams v. Workers’ Comp. Appeal Bd. (USX Corp.-Fairless Works),
862 A.2d 137, 144 (Pa. Cmwlth. 2004). “[W]here there is substantial evidence to
support [a WCJ’s] factual findings, and those findings in turn support the
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’ Comp. Appeal Bd. (Marlowe), 812 A.2d 478, 487 n.14 (Pa. 2002)
(emphasis added).
9
In addition, to satisfy the reasoned decision requirements of Section
422(a) of the Act,3 a WCJ must set forth the rationale for the decision by
specifying the evidence relied upon and reasons for accepting it. Daniels v.
Workers’ Comp. Appeal Bd. (Tristate Transp.), 828 A.2d 1043 (Pa. 2003); Dorsey
v. Workers’ Comp. Appeal Bd. (Crossing Constr. Co.), 893 A.2d 191 (Pa. Cmwlth.
2006). When conflicting evidence is presented, the WCJ must adequately explain
the reasons for rejecting or discrediting competent evidence. Daniels. 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. Id. “[T]he purpose of a reasoned decision is to spare the reviewing court
from having to imagine why the WCJ believed one witness over another.” Dorsey,
893 A.2d at 196 (citation omitted).
Further, a WCJ may base a credibility determination solely on a
witness’s demeanor when the witness testifies live before the WCJ. Daniels.
However, “[w]here medical experts testify by deposition, a WCJ’s resolution of
conflicting evidence must be supported by more than a statement that one expert is
deemed more credible than another.” Dorsey, 893 A.2d 194. To allow effective
appellate review, the WCJ must articulate an objective basis for the credibility
determination. Id. at 194-95. Although there are countless objective factors that
may support a credibility determination, these factors must be identified and
enunciated. Id.
3
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §834.
10
Nevertheless, “Section 422(a) does not permit a party to challenge or
second-guess the WCJ’s reasons for credibility determinations.” Id. at 195.
“Unless made arbitrarily or capriciously, a WCJ’s credibility determinations will
be upheld on appeal.” Id.
In a proceeding on a claim petition, the claimant bears the burden of
establishing that the injury, aggravation or exacerbation was sustained during the
course of employment and that a causal connection exists between his work and
the disabling injury. Coyne v. Workers’ Comp. Appeal Bd. (Villanova Univ. &
PMA Grp.), 942 A.2d 939 (Pa. Cmwlth. 2008). If the causal connection is not
obvious, a claimant is required to present unequivocal medical testimony. Povanda
v. Workmen’s Comp. Appeal Bd. (Giant Eagle Mkts., Inc.), 605 A.2d 478 (Pa.
Cmwlth. 1992).
Here, the WCJ made the following credibility determinations:
a. This [WCJ], having had the opportunity to observe
Claimant and his demeanor when he testified at the …
hearing, finds the overall testimony of Claimant to be
less than credible in the instant dispute. In this matter,
Claimant submitted the LIBC-750 and LIBC-760 to
Employer asserting that he was not ‘self-employed’ at
any time while receiving workers’ compensation benefits
and that his condition was ‘about the same[.]’
(Defendant Exhibit 06). There are two issues in the
context of the instant litigation that are troubling to this
[WCJ]. The first goes to the overall veracity of
Claimant. Here, Claimant acknowledged that he had, as
far back as 2009, been attempting to start a business
(Claimant Exhibit 05 at 32), and during the course of the
proceedings, Employer submitted into evidence an
‘Independent Associate Agreement’ Claimant had
executed with TVC Marketing Associates, Inc.
11
(Defendant Exhibit 04) as well as another printed web
page relating to Claimant concerning another venture
Claimant was trying. (Defendant [Exhibit] 07).
Although Claimant asserted that he made no income
from these ventures, Claimant testified that when he filed
his tax returns, he claimed deductions for certain
expenses related to the same. (Claimant Exhibit 05 at
33). To this [WCJ], these facts are inconsistent, i.e., an
assertion to Employer that one is not self-employed and a
claim to the Internal Revenue Service that there are
business deductions, i.e., a computer and writing off a
home office. In the mind of this [WCJ], the foregoing
inconsistency was bothersome when weighing the
general credibility of Claimant. Second, in the context of
the instant Claim Petition where Claimant is asserting
that on or about July 18, 2013 he suffered an aggravation
of the 2012 work injury, i.e., a new injury, Claimant’s
representation on the LIBC forms that his condition was
‘about the same’ appeared to this [WCJ] to be
inconsistent with the allegations in the present litigation.
An additional factor that was weighed by this [WCJ] as
to Claimant’s credibility included Claimant’s assertion
that he was not sure he could return to work in a job that
involved answering phones. (Id. at 52). In the view of
this [WCJ], the foregoing assertion was in stark contrast
to the testimony of [Claimant’s Orthopedist], one of
Claimant’s own medical experts who testified that
Claimant was able to work in a sedentary to light duty
capacity initially part time and then progressing to full
time. (Fras [Dep.] at 31 -32). Again, to this [WCJ], the
assertion of Claimant seemed, at best, inconsistent with
the opinion of his own medical expert, and at worst, an
embellished representation made to this [WCJ] as to the
extent his alleged ongoing disability, if any. Given the
foregoing factors, this [WCJ] rejects the testimony of
Claimant where such testimony conflicts with or is
material[ly] different from any of the other witnesses
who testified in this matter. Specifically, the testimony
of Claimant is rejected as less than credible and not
reliable.
b. This [WCJ], having carefully considered and reviewed
the deposition testimony of [Claimant’s Orthopedist], in
12
the context of the Claim Petition finds the testimony and
opinions of [Claimant’s Orthopedist] to be competent,
but less than credible or persuasive in the instant dispute.
The diagnosis that [Claimant’s Orthopedist] made, at
least as of the last visit he had with Claimant during
November 2014, was lumbar disc herniation and
aggravation of lumbar degenerative disc disease and that
the August 22, 2012 work event was a substantial
contributing factor to these conditions and that
Claimant’s return to work caused the change in MRI
findings. In the view of this [WCJ], it appeared that
[Claimant’s Orthopedist] placed significant weight upon
an apparent change between MRI findings from 2012 and
2013. However, there is no indication that the radiologist
who performed the 2013 MRI made any comparison with
the 2012 MRI as did [Employer’s Orthopedist] and
therefore there was no comment in the 2013 report of any
comparison changes. Further, unlike [Employer’s
Orthopedist], [Claimant’s Orthopedist] did not make a
side by side comparison between the 2013 and the 2012
MRIs. He testified that he had never seen the film from
the 2012 MRI. When weighing the testimony as a whole,
this [WCJ] weighed the fact that even [Claimant’s
Orthopedist] acknowledged that two different
radiologists may interpret the same MRI differently.
Moreover, even [Claimant’s Orthopedist] acknowledged
that there are scenarios where he disagreed with the
reading and/or interpretation made by a radiologist of
MRI findings. He even called into question the accuracy
of the 2012 MRI report and findings without having
actually seen the films and having only seen the report
the day of his deposition. Another factor that this [WCJ]
weighed when finding the testimony and opinions of
[Claimant’s Orthopedist] to be less than credible, is his
acknowledgement that he was simply not able to indicate
any particular date or time that the herniation in
Claimant’s low back may have occurred. All that
[Claimant’s Orthopedist] could state is that this condition
occurred sometime after August 22, 2012 and that it was
associated with Claimant’s light duty work. Yet, it
appears that all of the Doctors who testified in this matter
agreed that the September 2012 MRI was normal. And
as such, it is clear that the purported herniation did not
13
occur between August 22, 2012 and the date that the first
MRI was done. [Claimant’s Orthopedist] went on to
acknowledge that he had no employment records for
Claimant and he agreed that nowhere in his reports did he
ever discuss explicit details of Claimant’s job duties.
(Fras [Dep.] at 43, 46). In addition, [Claimant’s
Orthopedist] agreed that an intake form completed by
Claimant even as late as June 5, 2014 did not indicate
that Claimant had any other incidents or injuries at work
other than the August 22, 2012 incident. (Fras [Dep.] at
47-50). Finally, in this regard, [Claimant’s Orthopedist]
acknowledged that in none of his reports was there any
indication or statement made by Claimant in connection
with questions he may have posed during visits that there
was any other incident or accident than the August 22,
2012 event. In the view of this [WCJ], the opinion of
causation between Claimant’s work and the diagnosis
proffered by [Claimant’s Orthopedist] is too speculative
to support Claimant’s burden of proof, i.e., the opinion of
[Claimant’s Orthopedist] amounts to a statement that
Claimant was working between date A and date B and
therefore the injury must have occurred sometime
between these two points in time, but one cannot say
when. In the view of this [WCJ], this is simply not a
credible opinion.
c. This [WCJ], having carefully considered and reviewed
the deposition testimony of [Claimant’s Physician], in the
context of the Claim Petition finds the testimony and
opinions of [Claimant’s Physician] to be competent, but
less than credible or persuasive in the instant dispute.
Here, [Claimant’s Physician] opined that the August 22,
2012 work event was a substantial contributor to the
subsequent surgery. This opinion is simply not credible,
especially in light of the normal MRI that was performed
shortly after that event. In addition, [Claimant’s
Physician] also opined that Claimant’s ongoing work
from January 2013 to July 2013 was also a substantial
contributing factor to Claimant’s need for the December
10, 2013 surgery. This opinion is likewise not credible
given the previously [sic] judicial credibility
determinations made by this [WCJ] in a Decision and
Order circulated on June 29, 2015 pertaining to the
14
August 22, 2012 injury under Dispute DSP-4082052-3
and this [WCJ’s] review again in this matter of the
testimony and opinions proffered by Dr. Sexton. (See
Judge Exhibit O1). This [WCJ] previously found the
testimony and opinions of Dr. Sexton credible that as of
August 2013 there was no role in operating on someone’s
normal spine. As such, the opinion of [Claimant’s
Physician] that surgery was necessitated by a
combination of the August 22, 2012 work event and
Claimant’s work activities between January 2013 and
July 2013 are contrary to a previously litigated matter
where this [WCJ] made specific findings of fact and
credibility determinations. Likewise, the opinion of
[Claimant’s Physician] that the nature of Claimant’s
August 22, 2012 injury was ‘in actuality … a herniated
disk all along’ is not credible and contrary to prior
judicially determined facts. (See Sing [Dep.] at 33).
Finally, the fact that [Claimant’s Physician] had never,
before his January 6, 2015 deposition expressed the
opinion or explanation that it was a combination of the
original August 22, 2012 injury and Claimant’s return to
work was the cause of Claimant’s diagnosis as of January
6, 2015 and that [Claimant’s Physician] somehow
‘discovered’ this when preparing for the deposition is, in
the view of this [WCJ] less than a credible utterance.
Given these factors, this [WCJ] rejects the testimony and
opinions of [Claimant’s Physician] to the extent that they
conflict with or are materially different from the opinions
expressed by [Employer’s Orthopedist].
d. This [WCJ], having carefully considered and reviewed
the deposition testimony of [Dr. Sexton] in the context of
the Claim Petition finds the testimony and opinions of
Dr. Sexton to be competent, but only credible in part.
Specifically, this Judge credits the opinions expressed by
Dr. Sexton as to the fact that Claimant had a normal MRI
of the lumbar spine from 2012 (Sexton [Dep.] at 10 -12)
and there was also a normal bone scan from December
12, 2012. This fact comports with the comments of
[Employer’s Orthopedist] and [Claimant’s Orthopedist]
that the earlier MRI from September 2012 of the low
back was read as normal. (See Schmidt [Dep.] at 18 and
Fras [Dep.] at 28). In light of this, this [WCJ] credits the
15
opinion of Dr. Sexton that, at least as of the date he
evaluated Claimant, he saw no role in operating on
someone’s normal lumbar spine and that no ongoing
medical care was needed. (Sexton [Dep.] at 14). This
[WCJ] did not find the opinion of [Dr. Sexton]
concerning his diagnosis of left hip piriformis syndrome
and left hip meralgia paresthetic to be particularly
credible in this dispute, especially in light of the fact that
this [WCJ] had rejected this testimony and opinion in a
Decision and Order circulated by this [WCJ] on June 29,
2015 with respect to the August 22, 2012 injury date
under dispute number DSP-4082052-3. (Judge Exhibit
01). In that dispute relating to the August 22, 2012
injury, this [WCJ] specifically found, as a fact, that the
nature of the August 22, 2012 injury was limited to a left
thigh strain and a lower back strain.
e. This [WCJ], having carefully considered and reviewed
the deposition testimony of [Employer’s Orthopedist], in
the context of the Claim Petition finds the testimony and
opinions of [Employer’s Orthopedist] to be competent
and credible. In the view of this [WCJ], the testimony
and opinions expressed by [Employer’s Orthopedist]
were straight forward and unshaken upon cross
examination. Here, [Employer’s Orthopedist] was the
only orthopedic surgeon who actually viewed the 2012
and the 2013 MRI films, made the comparison and
testified that the films were identical, i.e., there had been
no change in the interval. This [WCJ] read this
testimony of [Employer’s Orthopedist] in light of the
admissions of [Claimant’s Orthopedist] that not only can
two radiologists read the same film differently, but even
he had found scenarios where he would disagree with a
radiologist’s reading of a film. When weighing the
credibility and persuasiveness of the various medical
witnesses in this dispute, the ‘side by side’ comparison
that [Employer’s Orthopedist] did was, in the view of this
[WCJ], more powerful in supporting his opinions and
conclusions than the testimony of the other experts who
testified in this dispute. Not unlike Dr. Sexton,
[Employer’s Orthopedist] credibly opined that he did not
find an indication for the surgery done by [Claimant’s
Orthopedist]. [Employer’s Orthopedist] credibly
16
explained why, in his opinion, someone who had actually
done the surgery would not be better able to see a
herniation than a doctor who had only seen /reviewed the
MRI. (See Schmidt [Dep.] at 17). In addition,
[Employer’s Orthopedist] pointed to the normal clinical
examination as well as a normal MRI from June 2014 to
support his opinions. Given these factors, this [WCJ]
accepts the testimony and opinions of [Employer’s
Orthopedist] as the medical facts of this dispute.
F.F. No. 16(a)-(e) (emphasis added).
Claimant challenges each of the above credibility determinations. He
acknowledges that the WCJ set forth detailed reasons for his acceptance or
rejection of each item of evidence. Considered in a vacuum, Claimant argues, each
individual “reason” may seem valid. Pet’r’s Br. at 11. Indeed, Claimant contends,
even “observation and demeanor” based reasons were set forth, which are
recognized as a valid exercise of the WCJ’s authority. Id. However, Claimant
asserts, it is the overall scheme of the WCJ’s findings, in comparison to the record
as a whole, and the overwhelming weight of the evidence, which render the
decision erroneous. Claimant maintains that while no single error may cause this
Court to reverse the WCJ’s decision, the combination of errors taken together is
what should be determinative. We disagree.
First, as to the WCJ’s rejection of Claimant’s testimony, because
Claimant testified live before the WCJ, the WCJ was permitted to base his
credibility determination regarding Claimant solely on Claimant’s demeanor.
Daniels. The WCJ did so here. F.F. No. 16(a). Moreover, the record supports the
WCJ’s additional reasons for rejecting Claimant’s testimony.
17
To that end, as the WCJ found, the record discloses several
inconsistencies in Claimant’s case. First, as the WCJ explained, Claimant
completed an “Employee Report of Wages and Physical Condition” Form (LIBC-
750) and an “Employee Verification of Employment, Self-Employment or Change
in Condition” Form (LIBC-760), in which he indicated he was not employed or
self-employed at any time while receiving workers’ compensation benefits.
Certified Record (C.R.) Ex. D-6. Before the WCJ, Claimant acknowledged he
attempted to start a business as far back as 2009, and Employer presented an
“Independent Associate Agreement” Claimant executed with TVC Marketing
Associates in 2014 as well as a computer printout from 2014 relating to another
business venture attempted by Claimant. C.R. Exs. D-4 at 5-8, D-7; Reproduced
Record (R.R.) at 75. Although Claimant asserted he generated no income from
these undertakings, as the WCJ found, when asked if he ever filed business tax
returns, Claimant responded: “No. The only thing I ever did with that business was
claim the stuff that I was trying to get it running, like a computer, you know, like a
--- we took the write off for a home office basically. That’s all I ever did.” R.R. at
76. Thus, as the WCJ found, these facts were inconsistent because, on the one
hand, in November 2014, Claimant completed Bureau of Workers’ Compensation
(Bureau) Forms on which he indicated he was not employed or self-employed at
any time while receiving workers’ compensation benefits (despite receiving
indemnity and/or medical benefits from August 2012 through July 2014), while, on
the other hand, Claimant made a claim to the Internal Revenue Service that there
were business tax deductions, i.e., a computer and writing off a home office. F.F.
No. 16(a).
18
Next, although Claimant filed the instant claim petition alleging he
suffered an aggravation of his 2012 work injury in 2013, on the 2014 Bureau
Forms identified above (which Claimant completed during the pendency of this
claim petition), in response to a question on the forms inquiring whether
Claimant’s physical condition changed, Claimant wrote “about same.” C.R., Ex.
D-6. The WCJ deemed this response inconsistent with Claimant’s allegations in
the current litigation. F.F. No. 16(a).
Finally, the WCJ determined Claimant’s testimony that he was “not
sure” that he could return to a job that involved answering phones was inconsistent
with Claimant’s Orthopedist’s opinion that Claimant could perform sedentary to
light duty work beginning part-time and progressing into full-time employment, if
tolerated on a part-time basis. Compare R.R. at 95 (Claimant’s testimony) with
R.R. at 202-03 (Claimant’s Orthopedist’s testimony). In short, because the record
supports the WCJ’s findings regarding these inconsistencies, we discern no error in
these additional bases for the WCJ’s rejection of Claimant’s testimony.
Further, as to the WCJ’s credibility determinations concerning the
medical evidence, the record supports the WCJ’s findings that:
 unlike Employer’s Orthopedist, Claimant’s
Orthopedist did not undertake a side-by-side comparison
of Claimant’s 2012 and 2013 MRI films, R.R. at 198,
211;
 Claimant’s Orthopedist was unable to identify any
particular date or time that the purported low back disc
herniation may have occurred, R.R. at 216;
19
 Claimant’s Orthopedist acknowledged he had no
employment records for Claimant, and he agreed that
nowhere in his reports did he discuss the details of
Claimant’s job duties, R.R. at 208, 214, 217-18;
 Claimant’s Orthopedist acknowledged that in none
of his reports was there a statement from Claimant that
there was any incident other than the August 2012
incident, R.R. at 221, 222-23;
 Claimant’s Physician opined that the August 2012
work incident was a substantial contributing factor to
Claimant’s need for surgery despite the fact an MRI
performed shortly after the incident was normal, R.R. at
140;
 although Claimant’s Physician opined that
Claimant’s ongoing work from January to July 2013 was
a substantial contributing factor to Claimant’s need for a
second surgery, that opinion was contrary to the WCJ’s
findings and credibility determinations in his June 2015
decision, WCJ Op., 6/29/15, F.F. No. 17(b);
 Claimant’s Physician’s opinion that Claimant’s
August 2012 injury was actually a herniated disc all
along was contrary to the facts determined by the WCJ in
his prior decision, WCJ Op. 6/29/15, F.F. No. 17, Concl.
of Law No. 5;
 Dr. Sexton credibly opined Claimant’s 2012 MRI
of the lumbar spine and bone scan were normal, R.R. at
272, 274;
 Dr. Sexton credibly opined that, at least as of the
date he examined Claimant, he saw no role in operating
on someone’s normal lumbar spine, R.R. at 274;
 Dr. Sexton’s diagnoses of left hip piriformis
syndrome and left hip meralgia paresthetic were not
credible based on the WCJ’s prior rejection of this
testimony in his June 2015 decision, WCJ Op. 6/29/15,
F.F. No. 17(b);
20
 Employer’s Orthopedist’s testimony was
straightforward and unshaken on cross examination,
C.R., Ex. D-1 (Deposition of Richard G. Schmidt,
6/10/15 (Schmidt Dep.)) at 7-29;
 Employer’s Orthopedist was the only orthopedic
surgeon who actually viewed the 2012 and the 2013 MRI
films, made the comparison and testified the films were
identical, i.e., there had been no change in the interval,
Schmidt Dep. at 16;
 Employer’s Orthopedist credibly opined he did not
find an indication for the surgery Claimant’s Orthopedist
performed, Schmidt Dep. at 17-18; and,
 Employer’s Orthopedist pointed to the normal
clinical examination as well as a normal June 2014 MRI
to support his opinions, Schmidt Dep. at 15, 18.
In sum, because the record amply supports the WCJ’s bases for his
credibility determinations, we cannot disturb them. Clearly, the WCJ’s decision
satisfies the reasoned decision requirements of Section 422(a) of the Act, and the
WCJ did not capriciously disregard the evidence Claimant presented.4
4
Claimant also very briefly asserts that, even assuming the surgery he underwent was
unnecessary, the WCJ capriciously disregarded his argument that unnecessary treatment is still
compensable if it would not have been undertaken “but for” the work injury. He cites J.D.
Landscaping v. Workers’ Compensation Appeal Board (Heffernan), 31 A.3d 1247 (Pa. Cmwlth.
2011), in support. In J.D. Landscaping, this Court determined that a utilization review
determination that certain medication prescribed to a decedent was unreasonable and
unnecessary was irrelevant to determining whether the decedent’s death, which occurred because
of an overdose of the medication, was causally related to his work injury. In J.D. Landscaping,
the WCJ determined that the decedent’s death was causally related to an accidental overdose of
pain medication that was prescribed for the decedent’s work-related back injury. Unlike in J.D.
Landscaping, the WCJ here rejected Claimant’s medical evidence, which indicated that
Claimant’s August 2012 work incident and work thereafter, were substantially contributing
factors to Claimant’s need for surgery. F.F. Nos. 16(b), (c).
21
Nevertheless, Claimant cites Giant Eagle, Inc. v. Workmen’s
Compensation Appeal Board (Bensy), 651 A.2d 212 (Pa. Cmwlth. 1994), for the
proposition that a WCJ’s decision is erroneous where a “patchwork of findings
together” results in credibility determinations that are illogical. Pet’r’s Br. at 10.
In Giant Eagle, this Court recognized that: “Where [a WCJ’s] opinion is without a
rational basis or scheme so as to be capricious, we are bound to reverse.” Id. at
218. Noting that an opinion would rarely meet those criteria, this Court explained
the particular circumstances under which the case arose:
The [WCJ] failed to set forth any findings of fact with
respect to the medical witnesses who testified. Instead,
he inexplicably states that he finds the direct testimony of
all of these witnesses as being not believable and not
credible and picks and chooses as to the credibility of
parts of testimony of other witnesses with no rhyme or
reason. The [WCJ] found that he does believe the cross-
examination testimony of Dr. Durning and Dr. Merkow,
despite the fact that there are very few relevant facts
contained in these portions of the testimony. In essence,
we can make no sense of the patchwork of credibility
findings as to portions of each individual’s testimony.
Not only do the [WCJ’s] credibility findings make no
sense, neither does his award: reinstatement of [the]
[c]laimant’s weekly benefits when none was requested;
ordering the payment of some medical benefits without
delineating which ones; awarding travel expenses
without having any evidence to make that determination
other than [the] [c]laimant’s testimony that he wanted to
be reimbursed for money spent travelling 20,000 miles to
see Dr. Merkow. We believe the findings are so
capricious that no reasonable person could have made
such findings of fact or conclusions of law. While the
Board attempted to mitigate by reversing some of the
decision’s more egregious errors, the findings tainted all
aspects of the [WCJ’s] decision. As such, we find the
decision below, as well as the bases for that decision, to
be generally not rational or intelligible.
22
Id. (footnote omitted).
The case presently before us is not akin to Giant Eagle. As explained
above, the WCJ here provided sufficient reasons for his credibility determinations
and those reasons are supported by the record. Further, the WCJ made detailed
findings as to each witness’ testimony. Ultimately, the WCJ considered the
conflicting evidence, and he credited the evidence presented by Employer over that
presented by Claimant. This is a proper function of the WCJ as fact-finder. A & J
Builders. Thus, we reject Claimant’s argument that the WCJ’s opinion lacks a
rational basis.5
5
Similarly, Higgins v. Workers’ Compensation Appeal Board (City of Philadelphia), 854
A.2d 1002 (Pa. Cmwlth. 2004), also cited by Claimant, is distinguishable. There, a WCJ denied
a claimant’s modification and reinstatement petitions seeking total disability benefits despite the
fact the claimant presented the competent medical testimony of one physician who opined the
claimant was totally disabled as well as a report of another physician who confirmed this
opinion. The employer offered no medical evidence to rebut the opinions of the claimant’s
medical experts. This Court determined the WCJ’s rationale for rejecting the claimant’s medical
testimony lacked record support, and the WCJ articulated no reason for rejecting the report of the
claimant’s other physician. Based on these clear deficiencies, we determined the WCJ's decision
did not satisfy the reasoned decision requirement.
Here, unlike in Higgins, the parties presented conflicting medical evidence on the issue of
whether Claimant sustained a new injury to his low back in July 2013, in the nature of an
aggravation. The WCJ chose to credit the testimony of Employer’s Orthopedist over that
presented by Claimant’s medical experts and properly articulated objective reasons for doing so,
which are amply supported by the record. Therefore, Higgins is inapposite here.
23
Based on the foregoing, we affirm.6
ROBERT SIMPSON, Judge
Judge Cosgrove dissents.
6
Claimant also asserts the Board capriciously disregarded his argument that his claim
petition should have been consolidated with two other pending petitions relating to his August
2012 work injury (the termination and review petitions) in order to permit consideration of all
evidence and arguments in the proper context and to avoid inconsistent outcomes. However, our
review of Claimant’s appeal to the Board reveals that Claimant did not raise this issue to the
Board. R.R. at 390-95. Thus, it is not surprising that the Board did not address this issue in its
opinion. As such, this issue is waived. See McGaffin v. Workers’ Comp. Appeal Bd.
(Manatron, Inc.), 903 A.2d 94 (Pa. Cmwlth. 2006).
In any event, even if not waived, a WCJ’s decision as to whether to consolidate related
actions is discretionary, not mandatory. 34 Pa. Code §131.30(a) (“Where proceedings involve a
common question of law or fact, the judge may consolidate the proceedings for hearing on all
matters in issue, and may make any appropriate orders concerning the conduct of the
proceedings to avoid any unnecessary costs or delay.”). Here, the WCJ denied Claimant’s oral
motion to consolidate the proceedings on Claimant’s claim petition with the proceedings on
Employer’s termination petition and Claimant’s review petition because consolidation would
delay the proceedings on Employer’s termination petition. R.R. at 17. In his brief to this Court,
Claimant offers no direct response to the WCJ’s decision to deny his request for consolidation on
this basis.
In addition, Claimant requests a remand for consideration of his claim petition by a
different WCJ based on his argument above that the WCJ’s decision contained “significant
omissions” and that the WCJ “ignored inconsistencies” and showed a “misapprehension of the
reasons why [C]laimant presented certain evidence.” Pet’r’s Br. at 26. To that end, Claimant
again argues the WCJ’s decision contains a “SCHEME of credibility determinations that are
inconsistent with the overwhelming weight of the evidence and inescapably tainted by a distorted
concept of the evidentiary record as a whole.” Id. Because, as explained above, the WCJ
adequately explained the bases for his credibility determinations and those bases are amply
supported by the record, we reject Claimant’s request for remand to a different WCJ.
24
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael Terrinoni, :
Petitioner :
:
v. : No. 1353 C.D. 2016
:
Workers' Compensation Appeal :
Board (Wawa, Inc.), :
Respondent :
ORDER
AND NOW, this 4th day of April, 2017, the order of the Workers’
Compensation Appeal Board is AFFIRMED.
ROBERT SIMPSON, Judge