# D. Glaser v. WCAB (DOC)

> Commonwealth Court of Pennsylvania · March 6, 2018

URL: https://www.frixlaw.com/law-library/cases/4251988

## Case

- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** March 6, 2018
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Simpson, J.
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David Glaser, :
Petitioner :
:
v. : No. 1205 C.D. 2017
: Submitted: January 5, 2018
Workers' Compensation Appeal :
Board (Department of Corrections), :
Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: March 6, 2018

David Glaser (Claimant) petitions for review of an order of the
Workers' Compensation Appeal Board (Board) that affirmed an order of a Workers'
Compensation Judge (WCJ), which, among other things, granted a termination
petition filed by Claimant’s employer, the Pennsylvania Department of Corrections
(Employer). Claimant contends the WCJ misinterpreted the testimony of his
medical expert and therefore incorrectly attributed his current left knee condition
solely to a prior military injury. Rather, Claimant asserts, his medical expert clearly
testified that his current condition is a work-related aggravation of his previous
military injury. Claimant further asserts that the WCJ erred in concluding Employer
met its burden of proof in its termination petition that he fully recovered from his
work injury. Therefore, Claimant argues the Board erred in affirming the WCJ’s
decision. Upon review, we affirm.
I. Background
Claimant worked for Employer as a corrections officer at a state
correctional institution. In March 2014, Claimant sustained an injury in the course
of his employment while breaking up a fight between inmates. Employer issued a
notice of compensation payable (NCP) listing a left knee injury described as a
strain/tear. WCJ’s Op., 5/11/16, Finding of Fact (F.F.) No. 1. The NCP noted
Claimant twisted his left knee while breaking up an inmate fight.

In April 2015, Employer filed a suspension petition alleging that as of
March 5, 2015, it offered Claimant his pre-injury job at his pre-injury wage, and that
Claimant declined the job offer. Employer also filed a termination petition based
upon a medical expert’s opinion that Claimant fully recovered from his work injury
as of February 16, 2015. In September 2015, Claimant filed a petition to review
compensation benefits (review petition) seeking to expand the NCP’s description of
the injury to include traumatic chondromalacia of the lateral tibial plateau.

In support of its suspension and termination petitions, Employer
submitted the deposition testimony of Dr. David Cooper (IME Physician), a
physician board certified in orthopedic surgery. F.F. No. 2. IME Physician
examined Claimant on February 16, 2015. Id. The doctor took Claimant’s history,
which included a military service connected left knee injury. Id. That injury
required surgery on the left knee for a lateral tibial plateau fracture. Id.

Claimant also provided IME Physician a history of the work incident.
Id. He indicated the twisting injury did not hurt him right away but later became a

2
problem. Id. Claimant underwent surgery by his treating physician, Dr. Raymond
E. Dahl (Claimant’s Physician), a board certified orthopedic surgeon. A couple of
months later, Claimant underwent another surgery, which showed arthritis. Id.
Claimant indicated he could still perform most of his activities, but he encountered
problems with squatting, kneeling and heavy lifting. Id.

IME Physician’s examination revealed no swelling of Claimant’s left
knee, but his left calf was slightly smaller. F.F. No. 3. Claimant had some cog wheel
motion of his left knee, but performed normal range of motion. Id. IME Physician
noted Claimant did show signs of symptom magnification when he lightly stressed
Claimant’s knee and Claimant said it hurt. Id. IME Physician also observed a little
crepitation consistent with some arthritis, but no laxity. Id. All tests were negative
for residual meniscal tearing. Id. The Lachman, drawer, pivot shift and jerk tests
were also negative. Id. IME Physician noted that objectively, any anterior meniscal
tear resolved. Id. In addition, IME Physician found no evidence of reflex
sympathetic dystrophy. Id.

IME Physician also reviewed Claimant’s medical reports and
diagnostic studies, including the arthroscopy pictures of Claimant’s last surgery in
September 2014. F.F. No. 4. These records definitively revealed a twisting injury
at work, which IME Physician found compatible with a sprain or strain, and capable
of tearing a meniscus. Id. Further, IME Physician reviewed an MRI that showed a
suspicion of an anterior medial meniscal tear. Id. The doctor noted that Claimant’s
Physician agreed and removed the tear. Id. In addition, IME Physician reviewed a

3
second operative report, which showed some arthritis, but no residual meniscal tear.
Id.

IME Physician also described and explained Claimant’s military injury,
which consisted of a lateral tibial fracture. F.F. No 5. IME Physician believed that
Claimant’s symptoms were consistent with that injury. Id. Therefore, IME
Physician diagnosed Claimant’s work injury as sprain of the left knee and anterior
horn medial meniscal tear. Id.

IME Physician opined that Claimant fully recovered from his work
injuries based on the clinical exam, which was normal and showed no residual
evidence of any soft tissue injury or meniscal tear. F.F. No. 6. The doctor further
opined that the arthritis Claimant suffered could not be related to the work injury
because there is no evidence that a soft tissue injury would cause, aggravate, or
accelerate any preexisting arthritis in the knee. Id.

The WCJ further noted that IME Physician reviewed Claimant’s
Physician’s medical records, including a September 2014 report to the Department
of Veterans Affairs (VA). F.F. No. 7. The report indicated that Claimant’s Physician
believed with 100% certainty that Claimant’s chondromalacia and arthritis of the
lateral compartment of the knee were causally related to his military tibial plateau
fracture. Id. The WCJ found IME Physician’s testimony to be credible because it
was clear, concise, logical, internally consistent, and consistent with Claimant’s
Physician’s report to the VA. Id.

4
Claimant testified on his own behalf and submitted the deposition of
his Physician. Claimant testified that while employed as a correctional officer he
sustained an injury in March 2014 while breaking up a fight between inmates. F.F.
No. 8. Claimant is a member of a special team at the prison, which is similar to a
police SWAT team. Id. The team members, who must pass a physical fitness test,
have special gear and handle such duties as cell extractions. Id.

Claimant acknowledged he sustained a prior injury to his left knee in
2003 while serving in the Army. Id. He last treated for the Army injury in 2004.
Id.

Claimant further testified he underwent surgeries by his Physician in
April and September of 2014. Id. Although Claimant’s Physician ultimately
released him to sedentary light duty, Employer did not offer Claimant such a
position. Id. Claimant further testified that his ongoing knee injury prevents him
from being able to defend himself from others in the event of an inmate attack. Id.

Claimant’s Physician testified he treated Claimant 14 times since
March 2014. F.F. No. 9. He initially diagnosed Claimant’s work injury as a “left
knee sprain/strain, rule out derangement.” Id. Thereafter, Claimant’s Physician
reviewed an MRI, which showed a tear involving the anterior horn and body of
Claimant’s medial meniscus, and chondromalacia of the patella of the left knee. F.F.
No. 10. In April 2014, Physician performed a left knee arthroscopy, at which time
he resected the anterior horn and body portion of the medial meniscus. Id.

5
Claimant’s Physician later requested another MRI, and he performed a
second surgery in September 2014. Id. While performing the chondroplasty, the
doctor observed some cracking, softening, and thinning of the articular cartilage
involving the lateral tibial plateau, and trochlea of the femur. Id. Claimant’s
Physician also debrided (smoothed out) the chondroplasty. Id. In addition, the
doctor gave Claimant cortisone injections and viscosupplementation, which is a gel
in the knee to help with pain and stiffness. Id. On the date of Claimant’s last visit
in May 2015, the doctor diagnosed Claimant’s condition as “status post left knee
arthroscopy with chondroplasty, moderate tibial plateau, trochlea of the femur and
partial meniscectomy, anterior horn.” Id.

Claimant’s Physician opined that Claimant did not fully recover from
his work injury. Id. Further, Claimant’s Physician opined that Claimant’s work
injury aggravated his preexisting arthritis related to his 2003 Army injury. Id. In
addition, the doctor agreed that Claimant could only perform sedentary work. Id.

Finally, the WCJ noted that Claimant’s Physician acknowledged his
September 2014 report to the VA, wherein the doctor indicated that Claimant’s
arthritic changes were the result of his service-connected disability. F.F. No. 11.
Claimant’s Physician explained that when someone suffers a tibial plateau fracture,
the likelihood of developing arthritis is 100%. Id.

Ultimately, the WCJ found Claimant’s Physician’s testimony not
credible because it contradicted IME Physician’s persuasive testimony and
Claimant’s Physician’s 2014 report to the VA. Id.

6
In sum, the WCJ found IME Physician’s opinion credible that Claimant
sustained work-related injuries in the nature of a left knee sprain and an anterior horn
medial meniscal tear. F.F. No. 6. IME Physician also opined that Claimant’s
arthritis was not causally related to his work injury “because there is no evidence
that [a] soft tissue injury would cause, aggravate, or accelerate any preexisting
arthritis in the knee.” Id. (emphasis added).

The WCJ further found IME Physician’s opinions consistent with
Claimant’s Physician’s September 2014 report to the VA, wherein he stated he felt
with 100% certainty that Claimant’s chondromalacia and arthritis of the left knee
were related to his military tibial plateau fracture. F.F. No. 7. To that end, the WCJ
rejected Claimant’s Physician’s opinion that Claimant’s work injury aggravated his
preexisting arthritis. F.F. Nos. 10, 11.

Consequently, the WCJ determined that Employer “sustained its
burden of proving by substantial, competent and credible evidence” that Claimant
“fully recovered from his work related injury as of February 16, 2015.” WCJ’s Op.,
Conclusion of Law (C.L.) No. 3.1 Therefore, the WCJ granted Employer’s
termination petition effective February 16, 2015, the date of IME Physician’s
examination.

1
However, the WCJ denied Employer’s suspension petition on the basis that Employer
failed to establish it offered Claimant a specific position and that he refused it. Conclusion of Law
(C.L.) No. 2. The WCJ also granted Claimant’s review petition and amended the NCP to include
an anterior horn meniscal tear. C.L. No. 4. Although Employer initially appealed the amendment
to the NCP, it later withdrew its appeal. Therefore, neither the suspension petition nor the review
petition are it issue in this appeal.

7
On appeal, the Board affirmed. In its decision, the Board reasoned:

Claimant … contends the WCJ ‘unreasonably
interpreted’ the evidence by incorrectly concluding that
[Claimant’s Physician] attributed Claimant’s current
condition only to his prior military injury when he
explained in his testimony that he felt Claimant sustained
a work-related aggravation of pre-existing arthritis caused
by the military injury. We understand Claimant’s
argument that rather than rendering inconsistent opinions,
[Claimant’s Physician] stated in his 2014 letter that the
chondromalacia and arthritis is related to the military
injury, and stated in his 2015 deposition testimony that
[he] believed the chondromalacia and arthritis, related to
the military injury, was aggravated by the work incident.
Our review of the [d]ecision reveals that the WCJ, in fact,
summarized [Claimant’s Physician’s] opinion as
presented in his deposition testimony. The WCJ, however,
chose to accept [IME Physician’s] testimony that the work
injury did not aggravate Claimant’s pre-existing arthritis
for the reasons [IME Physician] articulated, also finding
that his opinion (that Claimant’s chondromalacia and
arthritis involving the lateral compartment of the left knee
was related to his fracture while in the military), was
compatible with the opinion [Claimant’s Physician]
expressed in his correspondence. This determination is
consistent with the evidence of record. Further, rendering
credibility determinations is the quintessential function of
the fact-finder, Kasper v. [Workers’ Compensation
Appeal Board] (Perloff Brothers, Inc.), 769 A.2d 1243 (Pa.
Cmwlth. 2001), and in reviewing credibility
determinations, substantial deference is due. Casne v.
[Workers’ Comp. Appeal Bd.] (STAT Couriers, Inc.), 962
A.2d 14 (Pa. Cmwlth. 2008). We see no reversible error.

Bd. Op., 8/1/2017, at 7. Claimant petitions for review.

II. Issues

8
On appeal,2 Claimant contends the WCJ unreasonably misinterpreted
the testimony of Claimant’s Physician and therefore incorrectly attributed his current
left knee condition solely to a prior military injury, when, in fact, Claimant’s
Physician made it clear that Claimant’s current condition resulted from a work-
related aggravation of his previous military injury. Thus, Claimant asserts the Board
erred in affirming the WCJ’s decision where his credibility determinations were not
supported by substantial evidence. Relatedly, Claimant argues the WCJ erred in
concluding Employer met its burden in its termination petition of showing that
Claimant fully recovered from his work injury.

III. Discussion
A. Credibility Determinations
1. Argument
Claimant contends the WCJ erred by misinterpreting Claimant’s
Physician’s testimony. Claimant asserts his Physician testified that the 2014 work
injury aggravated an arthritic condition in his left knee, which his doctor in a
previous report to the VA causally related to a 2003 tibial plateau fracture Claimant
suffered while in the Army. Therefore, Claimant maintains, because the record does
not support the WCJ’s credibility findings, the Board erred in affirming the WCJ’s
decision.
Citing Casne, Claimant asserts the WCJ’s credibility determinations
must be supported by substantial evidence. A reviewing court must view the WCJ’s

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).

9
reasoning as a whole and may overturn a credibility determination if it is arbitrary
or capricious, or is so fundamentally dependent upon a misapprehension of material
facts, or is so otherwise flawed, as to render it irrational. Id.

Claimant argues that his Physician’s September 2014 report to the VA
and his deposition testimony in the present case are in complete harmony. Claimant
asserts the report indicated the arthritis in his left knee was causally related to his
military injury. However, Claimant’s Physician did not say that the military injury
was the sole cause of Claimant’s current arthritic condition. Rather, it was the work-
related aggravation of Claimant’s pre-existing condition that directly caused
Claimant’s current disability.

As Claimant’s Physician pointed out, Claimant functioned well as a
corrections officer and did not have knee problems prior to his March 2014 work
injury. He could run and participate in activities of daily living without difficulty in
regard to his left knee. After his work injury, he began having problems.

In sum, Claimant’s Physician made it clear that Claimant’s work injury
aggravated his underlying military injury to the point that Claimant could no longer
function as a full-duty corrections officer. Claimant cites Section 301 of the
Workers’ Compensation Act3 (Act), which defines injury in relevant part as “an
injury to an employee, regardless of his previous physical condition ….” Because
Claimant’s Physician opined that the work injury aggravated Claimant’s pre-existing
arthritic condition, Claimant argues the WCJ erred in characterizing the doctor’s

3
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §411(1).

10
testimony as inconsistent with his 2014 report to the VA. See F.F. No. 11. Claimant
therefore contends the WCJ’s adverse credibility determination is not supported by
substantial evidence. Therefore, Claimant maintains, the WCJ’s credibility finding
must be overturned. Casne.

2. Analysis
We recognize that the WCJ, as the ultimate fact-finder in workers’
compensation cases, has exclusive province over questions of credibility and
evidentiary weight. A & J Builders, Inc. v. Workers’ Comp. Appeal Bd. (Verdi), 78
A.3d 1233 (Pa. Cmwlth. 2013). The WCJ may accept or reject the testimony of a
witness, including an expert witness, in whole or in part. Id. “Credibility
determinations are more than a series of individual findings.” Casne, 962 A.2d at
19. “Rather, they represent the evaluation of a total package of testimony in the
context of the record as a whole, and reflect subtle nuances of reasoning that may
not be fully articulated, nor even fully appreciated, by the fact-finder.” Id.

In Findings of Fact Nos. 6 and 7, the WCJ stated (with emphasis added):

6. [IME Physician] was of the opinion that Claimant was
fully recovered from the work related injuries, because the
clinical exam was normal showing no residual evidence of
any soft tissue injury or meniscal tear. [IME Physician]
was also of the opinion that the arthritis from which …
Claimant suffered was not related to the work related
injury, because there is no evidence that [a] soft tissue
injury would cause, aggravate, or accelerate any
preexisting arthritis in the knee.

7. [IME Physician] had an opportunity to review records
from [Claimant’s Physician] subsequent to the IME.
These records included [Claimant’s Physician’s] report to

11
the [VA] dated September 25, 2014. This report indicated
that [Claimant’s Physician] felt with 100% certainty that
the chondromalacia and arthritis of the lateral
compartment of the knee was related to his military tibial
plateau fracture. [IME Physician’s] testimony is found to
be credible because it is clear, concise, logical and
internally consistent and consistent with the report of
[Claimant’s Physician] to the [VA].

F.F. Nos. 6, 7.

IME Physician’s testimony supports the WCJ’s findings. In a July 2015
deposition, IME Physician testified there is “no evidence that a soft tissue injury
would cause, aggravate, or accelerate any preexisting arthritis in [Claimant’s] knee.
So my opinion would be his arthritis would not be related to any work injury.”
Supplemental Certified Record (Supp. C.R.), Dep. of David Cooper, M.D. (Cooper
Dep.), 7/13/15, at 15. In a November 2015 deposition, IME Physician further
testified: “Arthritis – there’s no scientific or statistical evidence showing that any
underlying arthritis in the knee is changed by any soft tissue injury.” Supp. C.R.,
Cooper Dep., 11/17/15, at 7. IME Physician further testified that there was no
evidence of any arthritis on the inside of the knee where the meniscal tear occurred.
Id.

Reviewing the WCJ’s credibility determinations as a whole, we believe
it is clear that the WCJ accepted as credible IME Physician’s testimony that
Claimant’s work injury consisted of a soft tissue injury in the nature of a knee
sprain/strain and an anterior medial meniscal tear. See F.F. Nos. 3-7. This includes
IME’s Physician’s testimony and opinion that a soft tissue injury would not
aggravate or accelerate Claimant’s preexisting arthritis in his left knee. F.F. No. 6.

12
What is more, the WCJ found Claimant’s Physician’s testimony
“incredible because it is contrary to the credible and persuasive testimony of [IME
Physician] as well as [Claimant’s Physician’s] report to the [VA].” F.F. No. 11
(emphasis added). Simply stated, the WCJ rejected Claimant’s Physician’s opinion
because it contradicted that of IME Physician.

Where 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. 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). The WCJ must
articulate an actual objective basis for the credibility determination for the decision
to be “reasoned.” Daniels; Dorsey. As the Supreme Court explained:

[T]here are countless objective factors which may support
the decision to accept certain evidence while ‘rejecting or
discrediting competent [conflicting] evidence.’ For
example, an expert witness’s opinion may be based upon
erroneous factual assumptions ... or an expert may have
had less interaction with the subject ... or the interaction
was in a less timely fashion ... or the expert may betray a
bias or interest in the matter. .... In addition, an expert
witness may be unqualified or less qualified than the
opposing party’s expert; or may be impeached with
inconsistencies or contradictions in his or her testimony or
reports; or may be impeached in some other convincing
fashion.

Daniels, 828 A.2d at 1053 (citations omitted).

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Here, the WCJ found IME Physician’s testimony to be “credible
because it is clear, concise, logical and internally consistent and consistent with the
report of [Claimant’s Physician] to the [VA].” F.F. No. 7 (emphasis added). Thus,
even though Claimant’s Physician opined that Claimant’s work injury aggravated
his preexisting arthritis, F.F. No. 10, the WCJ accepted IME Physician’s opinion to
the contrary as persuasive. F.F. No. 11. Moreover, IME Physician’s testimony
remained consistent with Claimant’s Physician’s report to the VA, which related
Claimant’s arthritis to his military injury. F.F. No. 7. In short, the WCJ’s credibility
determinations were based on objective findings, which in turn, were supported by
substantial evidence. Therefore, we reject Claimant’s contention that the WCJ’s
credibility determinations regarding the medical evidence must be overturned.
Daniels; Casne; Dorsey.

B. Termination Petition
1. Argument
Claimant also contends the WCJ erred in granting Employer’s
termination petition where Employer failed to meet its burden of proving Claimant
fully recovered from his work injury. Claimant asserts his Physician’s testimony
made it clear that his current symptoms and related disability are the result of a work-
related aggravation of a non-symptomatic preexisting condition.

2. Analysis
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

14
to support the findings actually made. Furnari v. Workers’ Comp. Appeal Bd.
(Temple Inland), 90 A.3d 53 (Pa. Cmwlth. 2014). We examine the record in its
entirety to see if it contains evidence a reasonable person would find sufficient to
support the WCJ’s findings. Id. If the record contains such evidence, the WCJ’s
findings must be upheld. Id. In addition, we must view the evidence in the light
most favorable to the prevailing party and give that party the benefit of all inferences
reasonably deducible from the evidence. Id.

Here, IME Physician diagnosed Claimant’s work-related injury as a
sprain of the left knee and an anterior horn medial meniscal tear. F.F. No. 5; Cooper
Dep., 7/13/15, at 14. As discussed above, IME Physician opined Claimant fully
recovered from his work injury as of the date of his February 2015 evaluation
because his clinical exam was normal and showed no residual evidence of any soft
tissue injury or meniscal tear. F.F. No. 6; Cooper Dep., 7/13/15, at 14.

In a termination petition, the employer bears the burden of showing
either that the claimant’s disability ceased, or that any current disability arises from
a cause unrelated to the work injury. Campbell v. Workers’ Comp. Appeal Bd.
(Antietam Valley Animal Hosp.), 705 A.2d 503 (Pa. Cmwlth. 1998). Here, the WCJ
accepted IME Physician’s opinion that Claimant fully recovered from his work-
related injuries, which included a sprain of the left knee and an anterior horn medial
meniscal tear. IME Physician opined that the arthritis in Claimant’s left knee, and
any work restrictions related to his arthritic condition, were not causally related to
his March 2014 work injury. F.F. Nos. 5-7. These findings are supported by

15
substantial evidence. See Cooper Dep., 7/13/15, at 14-15; Cooper Dep., 11/17/15,
at 7-8.

For these reasons, we discern no error in the Board’s decision affirming
the WCJ’s order. Accordingly, the order of the Board is affirmed.

ROBERT SIMPSON, Judge

16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David Glaser, :
Petitioner :
:
v. : No. 1205 C.D. 2017
:
Workers' Compensation Appeal :
Board (Department of Corrections), :
Respondent :

ORDER

AND NOW, this 6th day of March, 2018, for the reasons stated in the
foregoing opinion, the order of the Workers’ Compensation Appeal Board is
AFFIRMED.

ROBERT SIMPSON, Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4251988. Public record. Not legal advice.