The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Cindi Martzen, :
:
Petitioner :
:
v. : No. 436 C.D. 2015
: Submitted: February 12, 2016
Workers’ Compensation Appeal Board :
(Jo-Ann Stores), :
:
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE COLINS FILED: August 2, 2016
Cindi Martzen (Claimant) petitions for review of an order of the
Workers’ Compensation Appeal Board (Board) that affirmed the decision and
order of a Workers’ Compensation Judge (WCJ) denying two claim petitions filed
by Claimant against Jo-Ann Stores (Employer) relating to an alleged workplace
injury that occurred on July 6, 2012. For the reasons that follow, we affirm the
order of the Board.
On August 23, 2012, Claimant filed a claim petition in which she
asserted that she sustained a workplace injury to her neck, back and legs on July 6,
2012 when she was moving a rack containing baskets of clothing that tipped over
and caused Claimant to fall backwards to the ground. (Reproduced Record (R.R.)
at 2-4.) Claimant filed a second claim petition on May 30, 2013, in which she
alleges that she suffered a disfigurement resulting from surgery related to the July
6, 2012 injury. (R.R. at 12-14.) Employer filed answers to both claim petitions,
denying that Claimant sustained work-related injuries. (R.R. at 8-9, 19-20.)
Claimant had previously sustained a work injury on January 12, 2011 while
working for Employer, described as a “lumbar spine, strain/sprain possible disc
injury”; Employer accepted this injury through a medical-only notice of
compensation payable. (WCJ Decision and Order, Finding of Fact (F.F.) ¶2.) At
the time the WCJ issued his decision in this matter, a suspension petition regarding
the January 12, 2011 injury was pending. (WCJ Decision at 3 n.1.) The WCJ
stated in his decision that the proceedings related to the two injuries were not
consolidated because Employer was represented by different insurance carriers at
the time of the two incidents. (Id.)
In support of the claim petition, Claimant testified that she began
working for Employer in 2009 as a store supervisor. (Claimant Dep. at 7-8, R.R. at
133-134.) Claimant testified that on January 12, 2011, she fell off a ladder while at
work; following her injury, she began treatment with Dr. O’Dell, the workers’
compensation panel physician, who concentrated his treatment on Claimant’s back
and hip despite her complaints of pain in her neck, shoulder and arm. (Id. at 7-10,
R.R. at 133-136.) Claimant returned to work after four months but was never
completely pain free and her work activities were limited to prevent bending over
for long periods of time. (Id. at 8, 10-12, R.R. at 134, 136-138.) In late June 2012,
Claimant testified that she felt pain in her back after planting flowers and, on July
2, 2012, she visited Dr. O’Dell who prescribed Claimant pain medication and also
provided her with a referral to Dr. Joseph R. Verna; the pain medication relieved
2
Claimant’s symptoms and she had no intention of scheduling a follow up visit as of
July 5, 2012. (Id. at 13-16, R.R. at 139-142.)
Claimant testified that, on July 6, 2012, she was attempting to move a
metal rack containing baskets of t-shirts for sale but was having difficulty because
the rack’s wheels were stuck. (Id. at 16-17, R.R. at 142-143.) Claimant called
over a store employee, Michelle Finisdore, to assist her and when Finisdore pulled
the rack, the wheels became unstuck and the baskets flew out of the rack, striking
Claimant in her legs and causing her to fall backwards. (Id. at 16-17, 27-28, R.R.
at 142-143, 153-154.) Claimant felt increasing pain over the course of the next
few days and scheduled an appointment with Dr. Verna on July 9, 2012; Claimant
testified that she was not sure what date she reported her incident to her supervisor,
Jonnell Brown, but believed that it was the same day she first visited Dr. Verna.
(Id. at 17-19, 30, R.R. at 143-145, 156.) Dr. Verna referred Claimant to two
specialists to examine her neck, Dr. Joseph Richards for injections and Dr. Andrew
Freese for evaluation for surgery; Dr. Freese performed surgery on Claimant’s
neck on October 16, 2012. (Id. at 19-20, R.R. at 145-146.) Claimant testified that
though her pain and mobility of her neck has improved following surgery, she is
not currently capable of returning to work and could not perform many of the
duties associated with her job including lifting, standing and bending. (Id. at 20-
22, R.R. at 146-148.)
Claimant also presented the testimony of Joseph R. Verna, D.C., who
is a licensed chiropractor with a diplomate from the American Chiropractic
Neurology Board. (Verna Dep. at 5-10, R.R. at 26-31.) Dr. Verna testified that he
first examined Claimant on July 9, 2012 after she was referred to him by Dr.
O’Dell, the physician who had treated Claimant for her prior back injury; at the
3
time of the first examination, Claimant reported pain in her neck and lower back
and attributed her symptoms to an incident in which she was pulling a shelving
system that fell down upon her. (Id. at 11-12, R.R. at 32-33.) Dr. Verna deferred
treatment on Claimant’s neck until an MRI could be performed of her cervical
spine and instead focused his treatment on Claimant’s lower back, which he
diagnosed as lumbosacral radiculitis secondary to lumbar disc displacement and
somatic dysfunction of the lumbar spine. (Id. at 12-14, R.R. at 33-35.) Dr. Verna
testified that he had been continuing treatment of lumbar traction, interferential
stimulation, ultrasound, chiropractic manipulation and bracing; Claimant had also
received one injection for her lumbar spine and Dr. Verna anticipated that she
would continue receiving more injections. (Id. at 19-22, R.R. at 40-43.)
After reviewing the MRI report of August 15, 2012, revealing severe
compression of the nerve root at the C5-6 level due to an osteophyte and disc
protrusion, Dr. Verna felt that the chiropractic treatment was inappropriate for
Claimant and he referred her to Dr. Richards for injections and Dr. Freese for
neurosurgical consultation. (Id. at 20-21, R.R. at 41-42.) Dr. Verna testified that
the injections did not offer Claimant any benefits and Dr. Freese then performed
anterior cervical discectomy and fusion surgery at the C5-6 level. (Id. at 21, R.R.
at 42.) At the time of his deposition, Dr. Verna’s present diagnosis of her neck
issues was post-surgery secondary to cervical radiculopathy due to disc protrusion
and osteophyte with cervical sprain/strain and segmental dysfunction. (Id. at 23,
R.R. at 44.) Dr. Verna was of the opinion that both Claimant’s current back and
neck symptoms were a result of the July 2012 work injury and the January 2011
work injury did not have any impact on her current condition because she had
4
achieved maximum medical improvement from that injury. (Id. at 23-24, R.R. at
44-45.)
On cross examination, Dr. Verna testified that Claimant reported
during her first visit that her symptoms in her neck were present on July 2, 2012
and her symptoms in her lower back were present beginning June 28, 2012. (Id. at
13, 26-27, R.R. at 34, 47-48.) Dr. Verna stated that he was not aware Claimant
alleged an injury occurring on July 6, 2012 and that this injury date would not
make sense to him because of the dates of onset of symptoms Claimant provided
and the fact that Dr. O’Dell referred her to Dr. Verna on July 2, 2012. (Id. at 26,
28, R.R. at 47, 49.) Dr. Verna acknowledged that his medical notes did not state
that Claimant sustained a work-related injury, but attributed this to a deficiency in
his recordkeeping software. (Id. at 27, R.R. at 48.) Dr. Verna further
acknowledged that Claimant’s 2011 MRI showed lumbar disc abnormalities for the
same levels he was providing treatment and that the cervical disc osteophyte
complex shown on the 2012 MRI was a degenerative condition that had been
developing for years prior to the July 6, 2012 incident. (Id. at 32-34, 44, R.R. at
53-55, 65.)
Following his deposition, Dr. Verna submitted a supplemental expert
report, in which he reiterated that he believed that Claimant’s neck condition and
medical treatments were related to the July 6, 2012 incident. (R.R. at 346.)
However, Dr. Verna also emphasized that if the WCJ were to reject Claimant’s
testimony that she was knocked over by the rack, then he would conclude that her
current condition was related to the January 12, 2011 workplace incident. (Id.)
Employer presented the deposition testimony of Neil Kahanovitz,
M.D., who is board certified in orthopedic surgery and whose practice focuses on
5
surgical and non-surgical treatment of spinal disorders. (Kahanovitz Dep. at 6,
R.R. at 254.) Dr. Kahanovitz performed an independent medical examination
(IME) of Claimant on February 22, 2013, in which he elicited a medical history
from Claimant, reviewed her medical records and conducted a physical
examination. (Id. at 10-18, R.R. at 258-65.) Dr. Kahanovitz testified that it was
his opinion that, assuming the veracity of Claimant’s account of the July 6, 2012
workplace incident that she was knocked to the ground by the falling rack, her
neck surgery and additional treatment were related both to the July 6, 2012
incident and the January 12, 2011 workplace incident. (Id. at 21-22, 32-33, 35-36,
42, R.R. at 269-70, 280-81, 283-84, 290.) However, Dr. Kahanovitz testified that,
assuming Claimant did not fall to the floor when the clothing rack tipped over and
it only struck her lower legs, there would have been no trauma to her neck and her
neck complaints would have been only related to the 2011 workplace incident. (Id.
at 29-30, 33-36, R.R. at 277-78, 281-84.)
Employer also presented the testimony of two fact witnesses, Jonnell
Brown, a district team leader for Employer and Claimant’s direct supervisor, and
Michelle Finisdore, a guest services employee who was working on July 6, 2012.
Brown testified that Employer policy requires that in the event of an injury,
employees are required to notify their direct supervisor of the injury and complete
an accident report for Employer’s insurer. (Brown Dep. at 6, R.R. at 205.) Brown
stated that Claimant called her approximately five days after her July 6, 2012
injury to report that she was hurt when a rack fell on her and would be out of work
for a few days; Brown thought it unusual that Claimant did not report the incident
immediately. (Id. at 7-8, R.R. at 206-07.)
6
Finisdore testified that on July 6, 2012, Claimant asked her to help
move the rack of t-shirts from one part of the store to another; Finisdore stated that
Claimant grabbed the tower from the top and started to pull it towards her and the
rack fell over. (Finisdore Dep. at 8-10, R.R. at 228-30.) Finisdore was directly to
the side of the rack when it fell and she observed no part of the rack hit Claimant.
(Id. at 10-11, R.R. at 230-31.) Finisdore testified that Claimant did not fall to the
floor when the rack fell; although Finisdore stated that she turned away for 30
seconds as the rack fell, she knew the rack did not hit Claimant because Claimant
was standing upright when Finisdore turned around. (Id. at 11-13, 21, R.R. at 231-
33, 241.) Finisdore stated that when she turned around, Claimant was rubbing her
shin; Finisdore asked Claimant if she was okay and Claimant reported that she
already was experiencing pain in her leg that morning. (Id. at 13-14, R.R. at 233-
34.) Finisdore testified that Claimant continued to work for approximately three
and one-half hours more before leaving for the day. (Id. at 14-15, R.R. at 234-35.)
The WCJ denied the claim petitions, finding that Claimant’s
testimony regarding the July 6, 2012 incident lacked credibility, in light of the fact
that Claimant sought treatment for her back and neck four days prior to the
incident, that there was no evidence that the rack struck her upper body, and that
Dr. Verna’s records reflect an onset of symptoms prior to July 6, 2012 and do not
indicate that the symptoms are work related. (WCJ Decision and Order, F.F. ¶9.)
The WCJ found credible the testimony of Employer’s fact witnesses that Claimant
did not fall to the ground when the rack fell or report the injury until four days after
the incident. (Id.) The WCJ also found Employer’s medical expert, Dr.
Kahanovitz, more credible than Claimant’s medical expert, Dr. Verna, because Dr.
Kahanovitz is a board-certified orthopedic surgeon more qualified to render an
7
opinion on causation and diagnosis and because Dr. Verna based his opinion on the
history provided by Claimant which had been rejected. (Id., F.F. ¶10) The WCJ
further noted that Dr. Verna agreed with the opinion of Dr. Kahanovitz that if it
was assumed that Claimant did not fall to the floor, then he would agree that the
injuries were not related to the July 6, 2012 incident. (Id.) The WCJ concluded
that Claimant’s current symptoms and need for medical treatment, including her
cervical spine surgery, were related to the previous January 2011 work injury that
had been recognized by Employer. (Id., F.F. ¶11.)
Claimant appealed the order of the WCJ, and the Board affirmed. In
addition, Employer’s insurer at the time of the 2011 work injury appealed the
WCJ’s order, arguing that the WCJ erred in attributing Claimant’s need for
treatment to the January 2011 work injury when the insurer had not been made a
party to the proceeding. The Board stated that it agreed with Employer’s 2011
insurer that the WCJ’s finding that Claimant’s treatment was related to the earlier
injury was in error but held the error harmless dicta because the WCJ only denied
the claim petitions on the grounds that Claimant did not meet her burden of
proving a July 6, 2012 work injury and did not establish liability based on the
January 2011 injury. (Board Op. at 5.) Claimant thereafter filed a petition for
review of the Board’s order with this Court. Employer’s 2011 insurer did not
appeal.1
Claimant argues on appeal that a full review of the record shows that
the WCJ’s findings of fact and credibility determinations contain a “‘scheme’ of
1
Our review is limited to determining whether an error of law was committed, whether the
WCJ’s necessary findings of fact are supported by substantial evidence and whether
constitutional rights were violated. Walter v. Workers’ Compensation Appeal Board
(Evangelical Community Hospital), 128 A.3d 367, 371 n.5 (Pa. Cmwlth. 2015).
8
errors” that requires this Court’s reversal of the Board’s affirmance of the WCJ’s
order. (Claimant Br. at 13 (quoting Giant Eagle, Inc. v. Workmen’s Compensation
Appeal Board (Bensy), 651 A.2d 212, 218 (Pa. Cmwlth. 1994).) Claimant asserts
that the reasons cited by the WCJ in rejecting Claimant’s testimony that she fell to
the ground on July 6, 2012 and suffered an injury to her back and neck as a result
were in error, and, in fact, a review of the full record demonstrates the veracity of
Claimant’s account of that incident.
Under the Workers’ Compensation Act (Act),2 the claimant bears the
burden of establishing all the necessary elements to support an award. Inglis
House v. Workmen’s Compensation Appeal Board (Reedy), 634 A.2d 592, 595 (Pa.
1993); Potere v. Workers’ Compensation Appeal Board (Kemcorp), 21 A.3d 684,
689 (Pa. Cmwlth. 2011). The critical inquiry in our review of workers’
compensation appeals is whether there is evidence to support the findings actually
made; accordingly, it is irrelevant whether there is evidence to support findings
other than those made by the WCJ. A & J Builders, Inc. v. Workers’
Compensation Appeal Board (Verdi), 78 A.3d 1233, 1238 (Pa. Cmwlth. 2013);
Minicozzi v. Workers’ Compensation Appeal Board (Industrial Metal Plating Inc.),
873 A.2d 25, 29 (Pa. Cmwlth. 2005). Our review requires us to examine the entire
record to determine whether there is evidence that a reasonable mind might find
sufficient to support the WCJ’s findings, and, if there is such evidence, the order
being appealed must be upheld despite conflicting evidence. A & J Builders, 78
A.3d at 1238-39, Minicozzi, 873 A.2d at 29.
2
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1–1041.4, 2501–2708.
9
The WCJ is the ultimate finder of fact and arbiter of credibility and
evidentiary weight in workers’ compensation cases. Walter v. Workers’
Compensation Appeal Board (Evangelical Community Hospital), 128 A.3d 367,
371 n.3 (Pa. Cmwlth. 2015). A WCJ is free to accept or reject the testimony of any
witness, including a medical witness, in whole or in part. Id.; Greenwich
Collieries v. Workmen’s Compensation Appeal Board (Buck), 664 A.2d 703, 706
(Pa. Cmwlth. 1995). Furthermore, the WCJ may choose to rely on the opinion of
one medical expert over that of another and may rely on the testimony of a single
expert even where there is conflicting expert evidence. Morey v. Workmen’s
Compensation Appeal Board (Bethenergy Mines, Inc.), 684 A.2d 673, 678 (Pa.
Cmwlth. 1996). Determinations of witness credibility and evidentiary weight are
not subject to appellate review except where made arbitrarily and capriciously.
Casne v. Workers’ Compensation Appeal Board (STAT Couriers, Inc.), 962 A.2d
14, 19 (Pa. Cmwlth. 2008).
We conclude that, rather than being replete with errors as Claimant
asserts, the WCJ’s findings of fact were supported by substantial evidence and his
conclusion of law that Claimant had not met her burden on the claim petition
logically followed from these findings. The WCJ provided four reasons for
rejecting Claimant’s account that she injured her back and neck during the July 6,
2012 work incident: first, that Claimant had received treatment from Dr. O’Dell
for her back and neck four days prior to July 6, 2012; second, that it was
uncontroverted that the rack did not strike her neck and back; third, that Claimant’s
co-worker, Michelle Finisdore, testified that Claimant did not fall to the ground
when the rack struck her; and fourth, that Dr. Verna’s records do not state that the
injury was work-related and indicate that Dr. Verna was provided with an onset
10
date for symptoms prior to the July 6, 2012 incident. (WCJ Decision and Order,
F.F. ¶9.) Each of these reasons for rejecting Claimant’s account of the July 6, 2012
incident is well-supported by the record.3
Claimant focuses her challenge of the WCJ’s finding that she was not
knocked to the ground by the falling rack on the testimony of Finisdore, who
Claimant argues was not competent or credible because she admitted to turning
away when the rack fell. Though Finisdore testified that she turned her back to
Claimant to dodge the falling baskets and did not turn back around for “30 seconds
at the most,” Finisdore testified unequivocally that Claimant did not fall to the
ground, explaining that she based this determination on the fact that Claimant was
standing straight upright when Finisdore “flashed back around” and Finisdore did
not believe that it was possible that Claimant could have picked herself up with no
assistance and be standing upright in the time her gaze was averted. (Finisdore
Dep. at 12-13, 21, R.R. at 232-33, 241.) We believe that this testimony was
competent to show that Claimant was not knocked over by the falling rack.
Moreover, even discounting Finisdore’s testimony, the WCJ identified other bases
in the record that independently support the finding that Claimant was not knocked
to the ground when the garment rack fell on July 6, 2012.
Claimant further argues that the WCJ capriciously disregarded the
testimony of Employer’s expert, Dr. Kahanovitz, that Claimant may have
aggravated her lower back injury even if she did not fall to the ground and that this
would support granting the claim petitions, at least to the extent that she injured her
3
(See Verna Dep. at 11, 13, 26-29, 42, R.R. at 32, 34, 47-49, 63; Claimant Dep. at 27-29, R.R. at
153-55; Finisdore Dep. at 11-13, 21, R.R. at 231-33, 241; Kahanovitz Dep. at 24-25, R.R. at 272-
73.)
11
lower back as a result of the July 6, 2012 incident. Our review for the “capricious
disregard” of material, competent evidence is an appropriate component of
appellate review in any case in which the question is properly raised before the
court. Leon E. Wintermyer, Inc. v. Workers’ Compensation Appeal Board
(Marlowe), 812 A.2d 478, 487 (Pa. 2002). A capricious disregard of evidence
occurs “when there is a willful and deliberate disregard of competent testimony
and relevant evidence which one of ordinary intelligence could not possibly have
avoided in reaching a result.” Station Square Gaming L.P. v. Pennsylvania
Gaming Control Board, 927 A.2d 232, 237 (Pa. 2007); see also Pryor v. Workers’
Compensation Appeal Board (Colin Service Systems), 923 A.2d 1197, 1205 (Pa.
Cmwlth. 2006).
Dr. Kahanovitz testified that even if Claimant did not fall to the
ground during the July 6, 2012 incident, “there may have been some aggravation of
the lower extremity and low back complaints.” (Kahanovitz Dep. at 30, R.R. at
278.) However, Dr. Kahanovitz’s statement that Claimant may have aggravated
her lower back injury was based upon an assumption that Claimant suffered some
trauma to her lower back from the rack striking her,4 which is contrary to the
WCJ’s findings regarding the July 6, 2012 incident. Moreover, testimony that an
incident “may have” injured Claimant is insufficient to satisfy the requirement that
a claimant prove her work injury through unequivocal medical testimony. Lewis v.
Workmen’s Compensation Appeal Board (Pittsburgh Board of Education), 498
A.2d 800, 802 (Pa. 1985); Reinforced Molding Corp. v. Workers’ Compensation
4
(Kahanovitz Dep. at 29-30, R.R. at 277-78 (“...I would think that in the absence of any
traumatic event involving the neck, but only to the lower back and shin, particularly based on the
history just four days previously of back and lower extremity complaints, that there may have
been some aggravation of the lower extremity and low back complaints.”).)
12
Appeal Board (Haney), 717 A.2d 1096, 1098 (Pa. Cmwlth. 1998). Viewed as a
whole, there is insufficient support in Dr. Kahanovitz’s testimony for a finding that
Claimant sustained a work-related disability or had any need for treatment
resulting from a July 6, 2012 back injury.5 Furthermore, Claimant’s own expert,
Dr. Verna, concluded that if the WCJ were to reject Claimant’s testimony
regarding being knocked over by the falling rack, he would attribute Claimant’s
current condition and need for treatment entirely to the January 2011 work injury.
(Supplemental Expert Report at 1, R.R. at 346.)
Finally, Claimant argues that this Court should remand this matter to
the Board in accordance with Section 706 of the Judicial Code,6 so that the Board
may remand to a WCJ to consolidate this matter with litigation pending before the
Board regarding the suspension petition filed by Employer related to the January
2011 injury. Claimant asserts that Employer, who had a different insurer at the
time of the January 2011 injury, presented contradictory medical expert testimony
in the suspension petition proceeding and that Claimant’s supervisor, Jonnell
Brown, provided conflicting testimony regarding Claimant’s notice after the July
6, 2012 incident. Because the depositions in the suspension petition matter were
5
Even assuming the veracity of Claimant’s account of the July 6, 2012 incident that she was
knocked over by the falling rack, it is uncertain whether Dr. Kahanovitz’s testimony would
support the grant of a claim petition for an injury to Claimant’s back. A claimant bears the
burden of proving continuing disability throughout the pendency of her claim petition. American
Contracting Enterprises, Inc. v. Workers’ Compensation Appeal Board (Hurley), 789 A.2d 391,
397 (Pa. Cmwlth. 2001). Dr. Kahanovitz testified that, based on Claimant’s account of the
incident, Claimant had suffered a lumbar strain but that she had completely recovered from the
strain at the time of the IME. (Kahanovitz Dep. at 19-20, 22, R.R. at 267-68, 270.)
6
“An appellate court may affirm, modify, vacate, set aside or reverse any order brought before it
for review, and may remand the matter and direct the entry of such appropriate order, or require
such further proceedings to be had as may be just under the circumstances.” 42 Pa. C.S. § 706.
13
taken after the WCJ issued a decision in this case and thus the WCJ could not
consider the alleged contradictions, Claimant argues that this matter should be
remanded and both proceedings consolidated so that the WCJ may consider the
evidence presented in the two cases together and issue consistent rulings.
This Court previously addressed a similar argument from Claimant,
when Claimant filed a reproduced record containing the deposition transcripts from
the proceedings on the suspension petition. Employer then filed an application to
strike the portions of the reproduced record not contained in the certified record,
along with Claimant’s brief; Claimant argued that this Court has authority to
examine this “after discovered” evidence in assessing the credibility and
competence of the testimony in this matter. In a September 8, 2015 opinion and
order, this Court granted the application to strike, observing that our review is
confined to the certified record and that we may not take judicial notice of
evidence from related proceedings that follow the date of the order, even where
known to the tribunal below. Martzen v. Workers’ Compensation Appeal Board
(Jo-Ann Stores), (Pa. Cmwlth., No. 436 C.D. 2015, filed Sept. 3, 2015) (Colins,
S.J.), slip op. at 4.
Here, too, we must reject Claimant’s attempt to introduce the evidence
adduced in the parallel proceeding related to the January 2011 injury into this case.
The only order under appeal to this Court is the Board’s affirmance of the WCJ’s
denial of Claimant’s claim petition related to the July 6, 2012 incident. Further, a
WCJ’s decision regarding 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
14
of the proceedings to avoid any unnecessary costs or delay.”). Thus, our review is
confined to determining whether the Board properly affirmed the denial of the
claim petition and we have concluded that it has. Claimant raises the possibility
that the ultimate conclusion by the Board on the suspension petition may conflict
with the Board’s decision in this case; however, at this juncture, this argument is
speculative and regardless such an argument is best addressed in an appeal from a
decision on the suspension petition.
Accordingly, the order of the Board is affirmed.7
____________________________________
JAMES GARDNER COLINS, Senior Judge
7
Claimant also cites the “reasoned decision” requirement of Section 422(a) of the Act in her
brief, although she does not specifically argue that the WCJ’s decision was not a reasoned
decision. Section 422(a) requires that the WCJ “clearly and concisely” explain the rationale for
his decision to enable “meaningful appellate review” by specifying the evidence on which he
relies, articulating the objective basis for credibility determinations and explaining the reasons
for rejecting or discrediting competent evidence. 77 P.S. § 834; Daniels v. Workers’
Compensation Appeal Board (Tristate Transportation), 828 A.2d 1043, 1051-53 (Pa. 2003). As
described above, the WCJ in this matter provided ample explanation for crediting the testimony
of Employer’s fact witnesses over Claimant regarding the events of July 6, 2012. Furthermore,
the WCJ’s finding that Dr. Kahanovitz was more credible than Dr. Verna was based on
specifically identifiable and objectively reasonable bases supported by the record, namely Dr.
Kahanovitz’s training as a board-certified orthopedic surgeon more qualified to issue opinions on
diagnosis and causation and Dr. Verna’s reliance on Claimant’s explanation of the July 6, 2012
incident, which the WCJ had discounted, in concluding her need for treatment arose on that date.
(WCJ Decision and Order, F.F. ¶10.) Accordingly, there was no violation of the Section 422(a)
“reasoned decision” requirement.
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Cindi Martzen, :
:
Petitioner :
:
v. : No. 436 C.D. 2015
:
Workers’ Compensation Appeal Board :
(Jo-Ann Stores), :
:
Respondent :
ORDER
AND NOW, this 2nd day of August, 2016, it is hereby ORDERED that
the order of the Workers’ Compensation Appeal Board in the above-captioned
matter is AFFIRMED.
____________________________________
JAMES GARDNER COLINS, Senior Judge