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Hernandez v. Workers' Compensation Appeal Board (F&P Holding Co.)

Commonwealth Court of Pennsylvania

July 19, 2018

Carmelo Olivares Hernandez, Petitioner
v.
Workers' Compensation Appeal Board (F&P Holding Co.), Respondent

          Submitted: April 20, 2018

          BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge.

          OPINION

          ANNE E. COVEY, JUDGE

         Carmelo Olivares Hernandez (Claimant) petitions this Court for review of the Workers' Compensation (WC) Appeal Board's (Board) November 28, 2017 order which affirmed the Workers' Compensation Judge's (WCJ) decision granting F&P Holding Company's (Employer) Petition to Terminate Compensation Benefits (Termination Petition), and reversed the WCJ's decision granting Claimant's Petition to Reinstate Benefits (Reinstatement Petition), and awarding Claimant litigation costs. The sole issue before this Court is whether the Board erred by affirming the WCJ's decision granting the Termination Petition. After review, we affirm.

         On August 12, 2011, while working for Employer as a maintenance worker, Claimant sustained an upper back injury. On July 31, 2012, Employer issued a medical-only Notice of Compensation Payable (NCP) acknowledging the injury as a thoracic sprain. At the time of the injury, Claimant was performing modified duty resulting from an earlier 2006 work-related lumbar spine injury.

         In September 2013, Claimant presented Employer with work restrictions pursuant to a Functional Capacity Evaluation (FCE). Thereafter, Employer laid off Claimant. On October 1, 2013, Claimant filed the Reinstatement Petition alleging a decrease in earning power following the 2011 injury. On October 23, 2013, Employer filed an answer thereto, admitting that Claimant was laid off because Employer could not accommodate his work restrictions, but denying that the restrictions were related to the work injury. On March 14, 2014, Employer sent Claimant to Christian Fras, M.D. (Dr. Fras) for an Independent Medical Examination (IME). On April 29, 2014, Employer filed its Termination Petition seeking to terminate WC benefits effective March 14, 2014 based on Claimant's alleged full recovery from the thoracic sprain and his ability to return to unrestricted work.

         On February 6, 2015, the WCJ granted both the Reinstatement Petition and the Termination Petition finding that Claimant was totally disabled from September 30, 2013 through March 14, 2014 resulting from the work injury, but was fully recovered thereafter. Both parties appealed from that decision. On April 25, 2016, the Board issued an order reversing the WCJ's decision granting reinstatement, and finding that there was insufficient record evidence to support the WCJ's conclusion that Claimant's August 12, 2011 work injury affected his earning power. The Board ruled that Claimant's inability to work as of September 30, 2013, was at least in part, due to a lumbar spine condition unrelated to the work injury. In addition, the Board vacated the grant of the Termination Petition and remanded the matter to allow the WCJ to reopen the record and consider the deposition testimony of Claimant's chiropractor and medical expert, Donna Kulp, D.C. (Dr. Kulp).

         On remand, the WCJ found Claimant's live testimony credible and Dr. Fras' deposition testimony more credible than Dr. Kulp's deposition testimony. The WCJ again granted both petitions, awarded Claimant indemnity benefits from September 30, 2013 through March 14, 2014, and terminated benefits effective March 14, 2014. The WCJ also awarded litigation costs to Claimant. Both parties appealed to the Board. On November 28, 2017, the Board affirmed the WCJ's decision granting the Termination Petition, but reversed the WCJ's decision granting the Reinstatement Petition and reversed the litigation cost award.[1] Claimant appealed to this Court.[2]

         Initially,

[i]t is solely for the WCJ, as the factfinder, to assess credibility and to resolve conflicts in the evidence. In addition, it is solely for the WCJ, as the factfinder, to determine what weight to give to any evidence. As such, the WCJ may reject the testimony of any witness in whole or in part, even if that testimony is uncontradicted.

Empire Steel Castings v. Workers' Comp. Appeal Bd. (Cruceta), 749 A.2d 1021, 1024 (Pa. Cmwlth. 2000) (citations omitted).

         Claimant contends that the Board erred by affirming the WCJ's decision granting the Termination Petition. The crux of Claimant's argument is that because the WCJ found Claimant's testimony credible, both the WCJ and the Board erred when they approved the Termination Petition. Claimant asserts that his testimony that he was not fully recovered from the work injury, needed work restrictions and additional treatment, and still experienced pain, was sufficient to deny the Termination Petition.

         Relying on Udvari v. Workmen's Compensation Appeal Board (U.S. Air, Inc.), 705 A.2d 1290 (Pa. 1997), the Board properly explained that an employer's burden in a termination petition

is met when an employer's medical expert unequivocally testifies that it is his or her opinion, within a reasonable degree of medical certainty, that the claimant is fully recovered, can return to work without restrictions, and that there are no objective medical findings that either ...

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