J. Pacheco v. WCAB (Nordstrom, Inc.)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Julio Pacheco, :
Petitioner :
:
v. : No. 408 C.D. 2020
: Submitted: August 21, 2020
Workers’ Compensation Appeal Board :
(Nordstrom, Inc.), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: March 22, 2021
Julio Pacheco (Claimant) petitions for review of an Order of the Workers’
Compensation Appeal Board (Board) affirming a Workers’ Compensation Judge’s
(WCJ) January 10, 2019 Decision on remand (Remand Decision) that held that
Claimant was entitled only to a partial reimbursement of litigation costs arising from
the WCJ’s September 26, 2017 Decision (Initial Decision). In the Initial Decision,
the WCJ granted in part Claimant’s Petition to Review Medical Treatment and/or
Billing (Review Petition), which sought to correct an alleged incorrect description
of Claimant’s work-related injury in the Notice of Compensation Payable (NCP).
The WCJ modified the NCP’s description based solely on the credited testimony of
Nordstrom, Inc.’s (Employer) expert witness, rather than the opinions offered by
Claimant’s experts, whom the WCJ did not credit.1 In the Remand Decision, the
WCJ found that Employer was required to reimburse Claimant only for the cost of
the copy of the deposition transcript of Employer’s expert whose credible testimony
was used to expand the description of Claimant’s injury. On appeal, Claimant argues
that notwithstanding the WCJ’s credibility determinations, he is entitled to the
reimbursement of all of his litigation costs pursuant to Section 440(a) of the
Workers’ Compensation Act2 (Act) because he succeeded on his Review Petition in
part. After review, we affirm as required by our precedent because the WCJ did not
find Claimant’s experts credible and, therefore, did not rely on their testimony to
expand the description of Claimant’s injury and the additional injuries were not
disputed by Employer.
I. Background
A. The Petitions
Claimant suffered a work injury on May 7, 2016, when a gate fell and hit his
head while working at Employer’s fulfillment center. Initially, this claim was
acknowledged by way of a Medical-Only NCP. Another NCP was issued on June
21, 2016, acknowledging an injury described as a head contusion and indicating that
Claimant would be paid temporary indemnity benefits. After initially receiving
treatment at WorkNet, Claimant was released to work with restrictions by James
1
The WCJ’s Initial Decision also granted various petitions filed by Employer, including
Petitions to Modify and Terminate Claimant’s benefits, which the Board affirmed. Claimant has
not challenged the merits of those determinations. However, because the Initial Decision did not
address the issue of litigation costs, the Board remanded the matter to the WCJ to determine what,
if any, litigation costs should be awarded.
2
Act of June 2, 1915, P.L. 736, as amended, added by Section 3 of the Act of February 8,
1972, P.L. 25, 77 P.S. § 996(a) (providing, in relevant part, that a claimant shall be awarded a
reasonable sum for litigation costs in any contested case in which the matter at issue is finally
determined, in whole or in part, in the claimant’s favor).
2
Rochester, M.D., on November 15, 2016. A Notice of Ability to Return to work was
issued to Claimant, along with Dr. Rochester’s restrictions. On that same day,
Employer sent Claimant a letter offering him a Bin Maker position that would be
within Claimant’s work restrictions and requesting that Claimant return to work on
November 21, 2016. Claimant did not return to work.
Employer filed a Petition for Modification (Modification Petition) on
November 23, 2016, requesting a modification of Claimant’s benefits based on
Claimant’s bad faith refusal to return to work at the light-duty job within Dr.
Rochester’s restrictions. On December 2, 2016, Claimant responded by filing the
Review Petition, claiming that the NCP incorrectly described his work injury. He
sought to expand the description of the work injury to include “cervical and lumbar
injuries including multiple disc herniations and disc disease, aggravation of right-
sided foraminal osteophytic spurring with cervical radiculopathy, concussion and
post-concussion syndrome with encephalopathy, vertigo, occipital neuralgia and
vestibulopathy.” (Initial Decision at 3.)
Also, on December 2, 2016, Claimant attended an independent medical
examination (IME) with Todd Samuels, M.D., who opined that Claimant was fully
recovered from the head contusion and able to return to work with no restrictions as
of that date. Based on this determination, Employer filed a Petition for Termination
on December 14, 2016. In addition, Employer sent Claimant a job offer letter, dated
December 15, 2016, requesting Claimant return to his full-duty work on December
22, 2016. Claimant did not return. Employer filed a Petition for Suspension
(Suspension Petition) on January 17, 2017, asserting that Claimant’s benefits should
be suspended as a result of Claimant’s failure to return to work.
3
In response to Claimant’s asserted additional work injuries, Employer filed a
Petition to Compel Independent Medical Examination (Petition to Compel). The
WCJ granted the Petition to Compel following a hearing. Claimant attended an IME
with Walter Peppelman, M.D., on March 6, 2017.
B. Proceedings Before the WCJ and the Initial Decision
In support of its petitions, Employer presented the deposition testimony of Dr.
Samuels taken on April 21, 2017, (Certified Record (C.R.), Item 34), Dr. Peppelman
taken on May 1, 2017, (id., Item 35), and Dr. Rochester taken on May 10, 2017, (id.,
Item 36). Dr. Rochester opined that, based on his initial examination of Claimant,
Claimant sustained “an abrasion and a contusion to his forehead, cervical spine
strain, post-concussive symptoms with left eye visual tracking and near vision
convergence deficits.” (Initial Decision, Finding of Fact (FOF) ¶ 6.) As of
November 15, 2016, Dr. Rochester explained that Claimant was fully recovered
from the abrasions and head contusion, had no further symptoms of post-concussive
syndrome, but was not fully recovered from the cervical spine strain. (Id. ¶¶ 30-32.)
Dr. Rochester did not believe Claimant sustained any injuries beyond those
identified. (Id. ¶ 31.) Dr. Samuels, a board-certified neurologist, opined that
Claimant had sustained a work-related concussion but had fully recovered from that
injury, as well as the head contusion or any other head or neurological injuries, as of
December 2, 2016. (Id. ¶¶ 34, 44-46, 51.) Dr. Samuels disagreed that Claimant
sustained any of the other neurological injuries claimed in the Review Petition. (Id.
¶¶ 45-48.) Finally, Dr. Peppelman, a board-certified orthopedic surgeon, opined that
Claimant may have sustained a cervical sprain/strain, but had fully recovered from
that injury, as well as the head contusion, by March 6, 2017, the date of the IME.
(Id. ¶¶ 54, 67, 72.) Dr. Peppelman disagreed that Claimant sustained any additional
4
injuries as a result of the May 7, 2016 work incident and stated that Claimant could
return to full-duty work without restriction. (Id. ¶¶ 67-70.)3
In support of the Review Petition, Claimant testified regarding the May 7,
2016 work incident, his work duties, his ongoing medical treatment, and his ongoing
and worsening pain in his neck, shoulders, mid and low back, and right leg. (Id.
¶¶ 120-27, 135, 139.) He did not think he could do even the light-duty Bin Maker
position. (Id. ¶ 137.) Claimant also offered the deposition testimonies of Bruce L.
Grossinger, D.O., taken on May 26, 2017, (C.R., Items 26-27), and Louis Marotti,
Jr., M.D., taken on June 5, 2017, (id., Item 25). It is the costs of these depositions
which Claimant seeks to recover in the present matter. Dr. Grossinger, who is board
certified in neurology, opined that Claimant sustained additional work-related
injuries, including cervical radiculopathy, an aggravation of osteophytes and
degenerative disc disease, two herniated discs, concussion with post-traumatic
encephalopathy and retrograde amnesia, vertigo with vestibulopathy, and cervical,
thoracic, and lumbar injuries. (FOF ¶¶ 75, 80, 82, 84.) Dr. Grossinger indicated
Claimant is totally disabled by these injuries. (Id. ¶ 86.) Dr. Marotti, a board-
certified neurosurgeon, opined that the work incident aggravated Claimant’s
underlying degenerative spondylosis and lumbar conditions, Claimant required neck
surgery, and Claimant was totally disabled from his time-of-injury position by these
injuries. (Id. ¶¶ 94, 99, 101-02, 104.)
Relevantly, the WCJ found credible and convincing Dr. Rochester’s
testimony “that [] Claimant suffered a concussion and cervical strain as a result of
3
Employer also presented the testimony of Daniel Donohue, its Safety Manager, who
explained the Bin Maker position and Employer’s job offers to Claimant. Mr. Donohue further
explained that Claimant’s position continued to be available on an ongoing basis at the same hours
and wages. (FOF ¶¶ 111-18.)
5
the work injury of May 7, 2016,” “was fully recovered from any contusion to the
head and . . . did not have any post-concussive symptoms as of . . . November 15,
2016,” and, as of that date, “could work in a sedentary-duty position.” (Id. ¶ 147.)
The WCJ also was persuaded by Dr. Samuels’ testimony that “Claimant was fully
recovered from any and all neurological injuries,” that there was no ongoing
symptomology relating to a concussion and head contusion as of December 2, 2016,
and that no additional injuries should be added to the NCP as being work-related.
(Id. ¶ 151.) The WCJ further credited Dr. Peppelman’s testimony that Claimant was
fully recovered from the cervical sprain/strain and did not suffer any other
orthopedic injuries. The WCJ expressly rejected the opinions of Dr. Grossinger and
Dr. Marotti, as well as Claimant’s testimony that he continued to be disabled and
suffer any symptoms from the injuries of May 7, 2016, as not credible or convincing.
Given these findings, the WCJ concluded “that the only injury sustained by
. . . Claimant on May 7, 2016, besides the acknowledged head contusion, is a
concussion and cervical strain/sprain. Any other injuries alleged by . . . Claimant in
his [Review] Petition . . . are found to be not work-related.” (Id. ¶ 158.) Thus, the
WCJ granted Claimant’s Review Petition in part and added the injuries of a cervical
strain and a concussion to the NCP. However, because the WCJ accepted Dr.
Rochester’s and Dr. Samuels’ opinions that Claimant was fully recovered from the
concussion, head contusion, and cervical sprain/strain, the WCJ granted the
Termination Petition and terminated Claimant’s benefits as of December 2, 2016,
and dismissed as moot the Suspension Petition. The WCJ further granted the
Modification Petition, modifying Claimant’s benefits as of November 21, 2016, due
to his failure to make a good faith attempt to return to work at a position that was
within Dr. Rochester’s restrictions.
6
C. Appeal to the Board and Remand Determinations
Claimant appealed the WCJ’s Initial Decision. The Board rejected the
majority of Claimant’s arguments as merely disagreeing with the WCJ’s credibility
determinations, which were beyond the Board’s review. However, Claimant had
also argued that he was entitled to the payment of Dr. Grossinger’s and Dr. Marotti’s
deposition fees, as they were litigation costs and he prevailed, at least in part, on the
Review Petition. Because the WCJ had not addressed the issue of litigation costs,
the Board remanded the matter to the WCJ to examine the record and issue an
amended decision with additional findings of fact as needed to determine whether
Claimant was entitled to the payment of any litigation costs that were “arguably[]
attributable to points on which Claimant did prevail in the present matter.” (Board
Aug. 16, 2018 Op. at 13.)
On remand, the WCJ restated the credibility determinations he had made in
the Initial Decision. (Remand Decision, FOF ¶ 7.) The WCJ explained that the
Initial Decision was not favorable to Claimant, in that his medical and wage loss
benefits were terminated. However, with regard to the Review Petition, the WCJ
held that while the description of the injuries had been expanded for a temporary
period, “it was the testimony of [Employer’s] expert, Dr. Rochester, and not either
of [] Claimant’s experts, that was found credible.” (Id. at 4.) The WCJ explained
that he had rejected “each and every diagnosis” of Dr. Grossinger and Dr. Marotti
as not credible. (Id.) Accordingly, the WCJ held that “[a]lthough Claimant
technically prevailed on the Review Petition, it was not because of any testimony
offered by either Dr. Grossinger or Dr. Marotti. As such, the only cost that would
be associated for the amended description of injury would be [the] transcript costs
of Dr. Rochester,” which would be reimbursable if Claimant established that he paid
those costs. (Id. at 4-5.)
7
Claimant appealed the Remand Decision to the Board, arguing that his right
to recover litigation costs was not dependent on which expert the WCJ found
credible or relied upon in reaching his determination. Claimant contended that
Employer had refused to correct the NCP, despite knowing that additional injuries
existed, and he had to present “legally and statutorily required medical
testimony/evidence in support of his successful Review Petition.” (Board Feb. 2,
2020 Op. at 11.) The Board disagreed, holding that Claimant was only entitled to
reasonable litigation costs, and for the costs to be reasonable, the WCJ must
determine “the extent to which they relate to the ‘matter at issue.’” (Id. at 13.)
Therefore, the Board held, “a claimant must prevail with respect to the particular
issue to which a given litigation cost applies in order to be entitled to reimbursement
for it.” (Id.) Because the WCJ found that Dr. Rochester’s opinion was the only
evidence that “had any bearing on Claimant’s success on his Review Petition,” the
Board determined that this “transcript was the only cost that Claimant may have
incurred that was reasonably essential.” (Id. at 13-14.) As the Board found it was
bound by the WCJ’s judgment as to the credibility and reliability of the evidence
and what litigation costs were reasonably essential, it affirmed the WCJ’s Remand
Decision. Claimant now petitions this Court for review.4
4
“This Court’s scope of review is limited to determining whether the necessary findings
of fact are supported by substantial evidence, whether errors of law were made, or whether
constitutional rights were violated.” Peters Twp. Sch. Dist. v. Workers’ Comp. Appeal Bd.
(Anthony), 945 A.2d 805, 810 n.8 (Pa. Cmwlth. 2008). “Substantial evidence has been defined as
such relevant evidence as a reasonable person might accept as adequate to support the conclusion.”
Wells-Moore v. Workmen’s Comp. Appeal Bd. (McNeil Consumer Prods. Co.), 601 A.2d 879, 881
(Pa. Cmwlth. 1992). “[T]he appellate role is not to reweigh the evidence or to review the
credibility of the witnesses,” but to “determine whether, upon consideration of the evidence as a
whole, the [WCJ’s] findings have the requisite measure of support in the record.” Bethenergy
Mines, Inc. v. Workmen’s Comp. Appeal Bd. (Skirpan), 612 A.2d 434, 437 (Pa. 1992).
8
II. Parties’ Arguments
Claimant argues that the Board erred as a matter of law when it affirmed the
WCJ’s refusal to award any of the costs associated with Dr. Grossinger’s and Dr.
Marotti’s depositions and that the plain language of Section 440(a) mandates he be
awarded all of his litigation costs associated with the Review Petition. Claimant
asserts that because he was required to introduce medical evidence to support his
position that his injury description was incorrect, Section 440(a) “commands
reimbursement of litigation costs when a [c]laimant is successful even in part.”
(Claimant’s Brief (Br.) at 8.) “To deny these costs after Claimant successfully
petitions to expand the description of injury[,]” Claimant submits, “is to misinterpret
and distort the plain language of Section 440[(a)][] and runs contrary to the
humanitarian purposes of the . . . Act.” (Id.)
Relying on Boeing Vertol Co. v. Workmen’s Compensation Appeal Board
(Coles), 528 A.2d 1020, 1023 (Pa. Cmwlth. 1987), Claimant argues that this Court
has “settled the point that costs incurred for [deposition transcripts], when they are
actually used in the case, are reimbursable,” and that “the expense of deposition
transcripts is reimbursable when necessary for presentation of the case.” (Claimant’s
Br. at 10.) Additionally, Claimant asserts that under Boddie v. Workers’
Compensation Appeal Board (Crown Distribution Center), 125 A.3d 84, 92 (Pa.
Cmwlth. 2015), where a claimant pays for a medical expert’s deposition whose
testimony is needed to prove that the claimant sustained a work injury, that cost is
reimbursable upon a favorable decision on that issue. Claimant argues that this
Court should adopt the dissenting opinion in Reyes v. Workers’ Compensation
Appeal Board (AMTEC), 967 A.2d 1071 (Pa. Cmwlth. 2009) (Pellegrini, J.,
dissenting), which Claimant asserts supports his argument that where a claimant has
9
the burden to prove an injury and is thus statutorily required to incur the cost of any
medical deposition in support thereof, “[i]t does not matter that the WCJ only relied
upon the testimony of one of Employer’s experts . . . .” (Claimant’s Br. at 18.)
Claimant posits that although Boddie and Reyes concerned claim petitions, as
compared to the Review Petition considered here, his burden to submit evidence to
establish the extent of his work injury is the same, and this Court should find that
the granting of the Review Petition alone justifies the award of costs.
Finally, Claimant asserts that, in using the word “shall,” Section 440(a)’s plain
language restricts the WCJ’s discretion in awarding costs to determining the
reasonableness of the cost, not whether costs are generally reimbursable. He asserts
that payment of costs under Section 440(a) is to deter unreasonable contests by
employers and that section’s provisions should be interpreted in his favor.
(Claimant’s Br. at 9 (citing Papernik v. Workmen’s Comp. Appeal Bd. (U.S. Steel
Corp.), 399 A.2d 1205 (Pa. Cmwlth. 1979)).) Because Claimant was successful in
expanding the description of his injury, Claimant argues he was entitled to the full
costs associated with proving this expanded injury.
Employer responds “that in order for litigation costs to be considered
reasonable, and thus reimbursable, they must relate to the ‘matter at issue’ on which
Claimant prevailed.” (Employer’s Br. at 27 (quoting Barrett v. Workers’ Comp.
Appeal Bd. (Sunoco, Inc.), 987 A.2d 1280, 1289 (Pa. Cmwlth. 2010), overruled on
other grounds by Crocker v. Workers’ Comp. Appeal Bd. (Ga. Pac. LLC), 225 A.3d
1201 (Pa. 2020)) (internal quotation marks omitted).) Relying on O’Neill v.
Workers’ Compensation Appeal Board (News Corp. Ltd.), 29 A.3d 50, 58 (Pa.
Cmwlth. 2011), Employer argues that where a WCJ rejects a claimant’s expert’s
testimony in whole and thus does not rely on that testimony in rendering a decision,
10
the costs associated with that expert’s testimony do not relate to the matter at issue
on which a claimant is successful. Therefore, such costs, Employer maintains, are
not reasonable or reimbursable under Section 440(a). As such, “Claimant did not
affirmatively establish that the costs he sought were necessary to litigate his Review
Petition[,]” as “[t]he testimony of Claimant’s experts was rejected as not credible”
and “did not even support the addition of a cervical strain, as neither even mentioned
the word ‘strain’ or ‘sprain’ in their depositions, much less testified that Claimant
suffered a cervical strain as a result of the work incident.” (Employer’s Br. at 30-
31.) Additionally, Employer asserts that Section 440(a) does not authorize awards
for costs just because a claimant has the burden of proof, especially where the
evidence presented by the claimant has been wholly rejected as not credible and not
reliable. Thus, as to the expansion of Claimant’s injury to include a concussion and
a cervical sprain, it was Employer’s medical witness who “volunteered this diagnosis
on direct examination[,]” and Claimant is not entitled to reimbursement of the costs
of his experts’ testimony. (Id. at 36.)
Furthermore, Employer argues that Boddie is distinguishable because this
Court’s reversal of the denial of litigation costs related to the claimant’s expert in
that case was based on the employer’s ultimate acceptance of some of the claimed
work injuries mere minutes before the deposition and that the deposition addressed
an injury that was unaddressed by the WCJ and, therefore, required a remand. Here,
Employer submits that, unlike in Boddie, Claimant’s injury was immediately
recognized by Employer, benefits were immediately paid, Claimant was not required
to file a claim petition but sought to expand the injury, and the WCJ addressed all of
the outstanding injuries and rejected all of Claimant’s evidence in doing so.
Employer asserts that the real focus of the Review Petition was the severe and
11
disabling injuries on which Claimant was unsuccessful, not the concussion and
cervical strain that were added and to which Claimant’s experts did not testify.
In addition, Employer maintains that the majority opinion in Reyes supports
the denial of Claimant’s litigation costs and that the Court should decline to adopt
the dissenting position. Employer contends that case law is clear that a claimant
must prevail on a disputed or “contested” issue to which the claimant’s expert’s
testimony was attributable in order to recover costs therefor. (Id. at 41-42.)
Employer argues that Claimant cannot show that Dr. Grossinger’s or Dr. Marotti’s
testimony was reasonably necessary or was actually used to expand his injury to
include a concussion and a cervical sprain, as it was only Dr. Rochester’s testimony
that was relied upon to partially grant the Review Petition. Finally, Employer
contends that Section 440(a) does not require “unlimited recovery of litigation costs”
but only recovery of “reasonable” costs, the Act’s use of “shall” does not mandate
an award of every single cost incurred by Claimant, and the WCJ did not err in
denying the requested litigation costs as unreasonable. (Employer’s Br. at 44-45.)
III. Discussion
The issue before the Court is whether the WCJ erred in limiting the amount
of litigation costs awarded to Claimant to only the cost of a copy of the deposition
transcript for Dr. Rochester. The award of reasonable litigation costs in workers’
compensation matters is governed by Section 440(a), which, in relevant part, states:
In any contested case where the insurer has contested liability in whole
or in part, including contested cases involving petitions to terminate . .
. or modify compensation awards [or] . . . agreements . . . , the employee
. . . in whose favor the matter at issue has been finally determined
in whole or in part shall be awarded, in addition to the award for
compensation, a reasonable sum for costs incurred for attorney’s fee,
12
witnesses, necessary medical examination, and the value of
unreimbursed lost time to attend the proceedings . . . .
77 P.S. § 996(a) (emphasis added). “In order for litigation costs to be considered
reasonable, and thus reimbursable under Section 440(a), they must relate to the
matter at issue on which [the c]laimant prevailed.” O’Neill, 29 A.3d at 58 (quoting
Jones v. Workers’ Comp. Appeal Bd. (Steris Corp.), 874 A.2d 717, 722 (Pa. Cmwlth.
2005)) (quotations omitted). The issue on which the claimant prevailed must have
been a “contested issue in order to be awarded litigation costs.” Jones, 874 A.2d at
721. The determination of whether litigation costs are reasonable and reimbursable
is left to the WCJ’s discretion. Id. at 721 n.3, 722.
In O’Neill, a claimant challenged a WCJ’s decision not to award fees
associated with a medical expert’s deposition, which the claimant argued was
pertinent to her success on her review petition. At issue was the claimant’s argument
that she was entitled to be reimbursed for mileage expenses accrued in obtaining
medical treatment. In awarding those mileage expenses, the WCJ relied solely on
the claimant’s own testimony and not that of the medical expert. On appeal, we
affirmed, explaining that “[t]here [wa]s nothing within the WCJ’s [d]ecision on the
issue of [the c]laimant’s travel expenses that relie[d] upon any testimony of [the
medical expert]; in fact, there is no testimony offered by [the medical expert] in these
entire proceedings that was found credible or concomitantly accepted by the WCJ.”
O’Neill, 29 A.3d at 59-60. Therefore, this Court held that because the “[c]laimant’s
testimony [wa]s unmistakably the sole basis for the WCJ’s award of travel
reimbursement costs, [the medical expert’s] unaccepted and/or rejected deposition
testimony [wa]s not related to the matter at issue on which [the c]laimant prevailed,
and thus the litigation costs associated therewith are not reimbursable under Section
440(a).” Id. at 60. Under this rationale, where a favorable decision is based solely
13
on evidence that is unrelated to the testimony of a claimant’s medical expert, which
was rejected as not credible, it is not an abuse of discretion for a WCJ to conclude
that the cost of that medical expert’s deposition is not related to the matter at issue
and, therefore, is not reimbursable under Section 440(a).
In Reyes, this Court focused on whether the claimant prevailed on any issues
that had been contested by the employer to determine whether litigation costs should
be awarded under Section 440(a). In that case, the claimant sustained injuries in a
work-related automobile accident and, while the employer initially had denied all of
the allegations, it explained at the first hearing that it was disputing one particular
injury and that the claimant’s loss of earnings was related to the accident. The WCJ
rejected the claimant’s expert’s testimony, credited the employer’s expert’s
testimony, and granted the claim petition but awarded only medical benefits for
some of the alleged injuries for a closed period. The WCJ denied the claimant’s
request for reimbursement of the cost of his expert’s deposition because the claimant
had “failed to prevail on the issues in controversy in the case.” Reyes, 967 A.2d at
1076. On appeal, we rejected the claimant’s argument that he had prevailed on a
contested issue because the issues on which he had prevailed, a more-limited
description of his work injury and the payment of medical benefits for a closed
period of time, were not disputed by the employer, particularly where there was no
evidence that there were unpaid medical bills. Id. at 1079-80. Having not prevailed
on a disputed issue, we held the denial of the claimant’s litigation costs was proper.
Id.; see also Quinn v. Workers’ Comp. Appeal Bd. (McGrath Tech. Staffing Inc.) (Pa.
Cmwlth., No. 618 C.D. 2017, filed Jan. 26, 2018) (rejecting a claim for litigation
costs based on the claimant’s argument that she prevailed in part because the WCJ
implicitly amended the description of the injury in the NCP by crediting the
14
employer’s experts who indicated that the claimant sustained additional injuries,
where those additional injuries were not contested by the employer and, therefore,
were not contested issues).5
In the present case, while Claimant was partially successful in his Review
Petition, we discern no legal error or abuse of discretion in the WCJ’s conclusion
that the costs associated with deposing Dr. Grossinger and Dr. Marotti were not
reimbursable under Section 440(a). The WCJ explicitly found both Dr. Grossinger’s
and Dr. Marotti’s diagnoses of Claimant’s injuries to be neither credible nor reliable.
Such credibility decisions are beyond this Court’s review. Reyes, 967 A.2d at 1075
n.3. Rather, in granting Claimant’s Review Petition to expand the nature of
Claimant’s injury to include a cervical strain and concussion, the WCJ relied solely
on Dr. Rochester’s testimony. Just as in O’Neill, Dr. Rochester’s testimony was
“unmistakably the sole basis” for Claimant’s partial success in expanding the nature
of his injury, and “[t]here is nothing within the WCJ’s Decision on the issue of [the
nature of] Claimant’s [work-related injury] that relies upon any testimony of” Dr.
Grossinger or Dr. Marotti. 29 A.3d at 59-60. Therefore, as “there is no testimony
offered by [Dr. Grossinger or Dr. Marotti] in these entire proceedings that was found
credible or concomitantly accepted by the WCJ,” Dr. Grossinger’s and Dr. Marotti’s
“unaccepted and/or rejected deposition testimony is not related to the matter at issue
on which Claimant prevailed, and thus the litigation costs associated therewith are
not reimbursable under Section 440(a).” Id. at 60. As O’Neill is analogous to the
case presented here, it is binding on this Court in this matter.
5
Although not binding, an unreported opinion of this Court may be cited as persuasive
pursuant to Pennsylvania Rule of Appellate Procedure 126(b), Pa.R.A.P. 126(b), and Section
414(a) of the Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a).
15
Further, similar to Reyes, while Employer here did not officially recognize the
concussion and cervical spine sprain, Employer did not dispute those injuries, the
medical treatment Claimant received for those injuries, or Claimant’s wage losses
related to those injuries. When Claimant was injured in May 2016, Claimant
received medical treatment and wage loss benefits from Employer, and Claimant
does “not claim that he had any unpaid medical expenses associated with” those
undisputed injuries. Reyes, 967 A.2d at 1080. As such, under our precedent, those
injuries cannot be said to be an issue in dispute on which Claimant prevailed in order
to receive litigation costs under Section 440(a). Rather, the real issue in dispute was
the numerous other injuries that Claimant sought to add to the NCP, which his
experts opined were caused by the work incident and rendered him totally disabled.
Because those opinions were not credited, “Claimant did not prevail on any issue in
dispute and [the WCJ] properly denied his request for litigation costs.” Reyes, 967
A.2d at 1080. Although Claimant asks this Court to adopt the dissenting opinion’s
reasoning in Reyes, that reasoning did not reflect the position of the majority of the
Court and would necessitate that this Court reverse Reyes. Claimant has not
proffered a compelling basis for the Court to do so.
Claimant relies on Boeing Vertol and Boddie. However, as Employer argues,
Boeing Vertol indicates that costs are reimbursable “when they are actually used in
the case” and “when necessary for presentation of the case.” 528 A.2d at 1023(emphasis added). Although Claimant presented the depositions of Dr. Grossinger
and Dr. Marotti to expand his injuries to those beyond a head contusion, concussion,
and cervical spine strain, those uncredited depositions were not necessary to or
actually used by the WCJ to grant the Review Petition. Claimant had the burden to
prove additional injuries, and that burden was met not through the testimony of
16
Claimant’s experts, but solely through Dr. Rochester’s opinion that Claimant
suffered a concussion and cervical strain. That was the only deposition used and
necessary to the partial grant of the Review Petition.
In addition, because Dr. Grossinger’s and Dr. Marotti’s opinions were wholly
rejected and their depositions were not used or necessary for the issue on which
Claimant prevailed, this matter is distinguishable from Boddie. In that case, the
medical expert whose deposition fee was sought specifically testified to “an issue
that was being contested [(certain lumbar injuries)] and upon which [the c]laimant
prevailed” because the employer issued an NCP accepting those injuries just
minutes before the deposition was taken. Boddie, 125 A.3d at 92 (emphasis added).
Conversely, Claimant did not prevail on expanding his injuries to include additional
diagnoses beyond a concussion and cervical strain, which Employer never disputed
or for which Employer never denied payment of either medical treatment or wage
loss benefits. In fact, Employer offered Claimant a modified duty position consistent
with the restrictions Dr. Rochester imposed based on those injuries and it was only
after Claimant refused to return to work in good faith that Employer challenged
Claimant’s receipt of benefits.6 Accordingly, Boeing Vertol and Boddie do not
require a different result.
Finally, we are unpersuaded by Claimant’s argument that Section 440(a)
requires the imposition of litigation costs where a claimant prevails in whole or in
part regardless of what evidence is used or whether the issues were actually
6
To the extent Claimant argues he was forced to litigate the extent of his injuries due to
Employer’s not recognizing the concussion and cervical sprain, we disagree. Although Employer
did not officially recognize those injuries, there is no dispute that Employer paid for Claimant’s
medical treatment and wage loss benefits related to those conditions until Claimant refused to
return to modified duty work and, later, was found to have been fully recovered from all of his
injuries.
17
contested. Although Section 440(a) uses the word “shall,” it also uses limiting
language that the costs relate to a “matter at issue” and that such award be a
“reasonable sum for costs.” 77 P.S. § 996(a) (emphasis added). Moreover, this
conclusion would be contrary to the above-cited precedent that examined numerous
factors in determining whether litigation costs relate to a contested issue on which
the claimant prevailed. O’Neill, 29 A.3d at 58; Jones, 874 A.2d at 721. Contrary to
Claimant’s position that such reimbursements are mandatory, the determination of
whether litigation costs are reasonable and reimbursable is left to a WCJ’s discretion.
Jones, 874 A.2d. at 721 n.3, 722; Papernik, 399 A.2d at 1207. For the foregoing
reasons, we discern no basis for interfering with the WCJ’s discretion here.
IV. Conclusion
Although Section 440(a) provides for the reimbursement of reasonable
litigation costs in cases where the claimant prevails in whole or in part on a contested
or disputed issue, such costs must relate to the disputed issue on which the claimant
prevailed. O’Neill, 29 A.3d at 58; Jones, 874 A.2d at 721. Reviewing the WCJ’s
decisions in this matter, in which the WCJ did not credit Claimant’s evidence but
relied solely on the testimony of Dr. Rochester, to partially grant the Review Petition
to add injuries to Claimant’s NCP that were not disputed by Employer, we discern
no error or abuse of discretion in the WCJ’s determination to limit the award of
litigation costs to the cost of a copy of Dr. Rochester’s deposition. Accordingly, the
Board’s Order is affirmed.
_____________________________________
RENÉE COHN JUBELIRER, Judge
18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Julio Pacheco, :
Petitioner :
:
v. :
: No. 408 C.D. 2020
Workers’ Compensation Appeal Board :
(Nordstrom, Inc.), :
Respondent :
ORDER
NOW, March 22, 2021, the Order of the Workers’ Compensation Appeal
Board is AFFIRMED.
_____________________________________
RENÉE COHN JUBELIRER, Judge