“The Superior Court refused to decide this question because it was not set forth in the statement of questions involved as required by Pa. R.A.P. 2116; and therefore, it was not properly before that court. For this reason, we will not consider the question.”
How later courts described this case
- “The Superior Court refused to decide this question because it was not set forth in the statement of questions involved as required by Pa. R.A.P. 2116; and therefore, it was not properly before that court. For this reason, we will not consider the question.”
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Christopher Burton, :
:
Petitioner :
:
v. : No. 1152 C.D. 2020
: Submitted: May 21, 2021
RSVB Couriers (Workers’ :
Compensation Appeal Board), :
:
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge1
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: April 13, 2022
Christopher Burton (Claimant) petitions for review of the Orders of the
Workers’ Compensation Appeal Board (Board) affirming the Decisions of a
workers’ compensation judge (WCJ), which denied Claimant’s Claim Petitions for
compensation benefits, and granted the Termination Petition of RSVB Couriers
(Employer) to terminate his workers’ compensation benefits, pursuant to the
provisions of the Workers’ Compensation Act (Act).2 We affirm.
I.
1
This matter was assigned to the panel before January 3, 2022, when President Judge
Emerita Leavitt became a senior judge on the Court.
2
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4; 2501-2710.
On December 1, 2017, Claimant was involved in a motor vehicle
accident in the course and scope of his employment as a delivery driver for
Employer. Claimant went to the hospital, but he did not receive any work
restrictions. On January 11, 2018, Employer issued a Notice of Compensation
Denial (NCD), which stated that Claimant “was in a company truck on I[-]76 on his
way to the Fed [E]x Terminal when a vehicle shot out in front of him causing him
to swerve and swipe a guardrail” resulting in a “low back strain.” Reproduced
Record (R.R.) at 4a. The NCD also stated that benefits were denied at that time
because the “insurance carrier is unable to determine compensability for the above
alleged injury at this time” and that the “investigation is continuing.” Id. at 5a.
However, on March 6, 2018, Employer issued a Medical-Only Notice of
Compensation Payable (NCP) acknowledging Claimant’s work-related low back
strain, but only providing “compensation for medical treatment (medical only, no
loss of wages) will be paid subject to the [Act],” and that “[c]ompensation for
medical treatment is payable from the date of injury.” Id. at 7a.3
On July 12, 2018, Claimant was terminated from his employment with
Employer based on his purported misuse of a company fuel card for personal use.
R.R. at 242a-45a. That same day, Claimant filed two Claim Petitions for
compensation benefits in which he alleged, inter alia, that he sustained a work-
related injury on July 11, 2018, while lifting a heavy package on his work truck. See
C.R. Docket Entries 2 and 31. Claimant described the injury as a “lower back injury”
in the nature of a “strain or tear, trauma to the muscle.” Id. Claimant also stated that
3
On August 1, 2018, Employer filed an Amended Medical-Only NCP with respect to
Claimant’s December 1, 2017 work-related injury. See R.R. at 8a-9a. However, as noted by the
WCJ in her Decisions, “Claimant never filed a [Claim] Petition with respect to the December 1,
2017 injury.” Certified Record (C.R.) Docket Entries 5 and 37 at 3 n.1.
2
he “called Rob[ Rangnow (Rangnow), Employer’s owner and his supervisor, at]
1:30 p.m. [on] 7-11-18”; that Rangnow “came to [the] work area 2 [hours] later (after
he took his son to work)”; that they “agreed to light duty and help after [Claimant’s]
doctor visit starting on 7-12-18”; and that “[o]n 7-12-18 [at] 9:30[, Claimant] was
told [that his] services [were] no longer needed.” Id.
On August 7, 2018, Employer filed an NCD with respect to Claimant’s
July 12, 2018 Claim Petition. R.R. at 10a-11a. On August 23, 2018, Employer filed
an Answer to the Claim Petition denying all of the material allegations raised therein.
Id. at 18a-20a. On December 27, 2018, Employer filed a Termination Petition
alleging, inter alia, that “[i]t has been medically determined that Claimant [had] fully
recovered from his work-related injury” as of December 3, 2018. Id. at 22a. All of
the petitions were consolidated for disposition by the WCJ, see id. at 16a, 26a, and
hearings before the WCJ ensued.
In her Decisions disposing of the petitions, the WCJ summarized the
relevant evidence introduced in the proceedings as follows. At an October 30, 2018
deposition, Claimant testified that on December 1, 2017, he worked for Employer as
a delivery driver, which entailed arriving at the terminal each morning and loading
the truck to make deliveries. R.R. at 45a. On that day, he was driving the truck to
the terminal when a vehicle pulled out in front of him causing him to swerve and
sideswipe a guardrail. Id. at 45a-46a. Claimant went to the emergency room of
Presbyterian Hospital (Presbyterian) complaining of pain in his head from hitting his
head on the windshield, pain in his lower back, and pain in his knee. Id. at 49a. He
was released from the hospital with prescriptions for medication, and returned to
light-duty work that day at Rangnow’s request. Id. at 46a, 47a. He continued to
work and did not receive additional medical treatment until he sought medical care
3
on July 12, 2018, for his alleged work-related injury of July 11, 2018. Id. at 52a,
53a.
On July 11, 2018, Claimant allegedly sustained a work-related injury
when he lifted a small, but heavy, box too quickly. R.R. at 54a. He heard something
pop in his back and could not straighten out his back. Id. Claimant called Rangnow,
who begged Claimant to finish his shift. Id. Claimant called his cousin who helped
him finish the day. Id. at 55a.
On July 12, 2018, Claimant sought treatment at the University of
Pennsylvania Hospital (Penn). R.R. at 55a-56a. He complained of worsening back
pain across his beltline, but the pain did not extend into his legs. Id. at 56a. The
hospital gave Claimant a paper containing work restrictions. Id. at 56a-57a. In
August of 2018, Claimant started seeing Dr. Lombardo and treating with a
chiropractor three times a week. Id. at 59a. Claimant has not worked for Employer
since July 11, 2018, but, at the time of hearing, he was working as a driver for Lyft
four days a week, earning $300.00 to $350.00 per week. Id. at 64a-65a, 66a-67a,
68a.
At the WCJ’s June 24, 2019 hearing, Claimant testified that he lifted
packages weighing up to 180 pounds in his position with Employer. R.R. at 286a.
After the December 1, 2017 accident, Claimant wanted to see a company physician
because his back was “killing” him, and he asked for light duty or to have a helper
assist him. Id. at 287a-88a. After the accident, Claimant sent Rangnow a text saying
that Erie Insurance had contacted him, and Claimant told Erie that he was “all
better.” Id. at 288a. He explained that he sent the text because if he did not work,
Rangnow would have to find someone else and Claimant would lose his job. Id. at
288a-89a. After the accident, Claimant hired one of his cousins to help him out and
4
Claimant paid his cousin half of his paycheck. Id. at 289a, 290a. Employer also
removed heavy weight objects from Claimant’s truck to lighten his load. Id. at 289a.
Claimant disputed Rangnow’s testimony before the WCJ that he called
Rangnow from the road on July 11, 2018, and asked Rangnow to bring out diesel
exhaust fluid (DEF), stating that “[t]hat’s a lie.” R.R. at 290a. Claimant would buy
DEF as needed and Rangnow reimbursed him. Id. His personal use of Employer’s
fuel card was known by Rangnow and Rangnow would take the amount that
Claimant owed out of his bonus. Id. at 291a-92a.
After Employer fired Claimant, he worked for Lyft from August 2018,
to April 2019. R.R. at 293a. He had to pay increased insurance, gas, and tolls, which
decreased his Lyft earning to $300.00 to $350.00 per week. Id. at 294a-95a.
Claimant does not suffer from any residual problems with his head or
knee from the December 1, 2017 accident, but he has continuing back pain and his
right leg “vibrates” once in a while. R.R. at 296a. He continues to treat with Maurice
Singer, D.O. (Singer), and takes Tramadol for his injury. Id. at 296a-97a.
After Claimant’s work-related December 1, 2017 injury, he was seen
in Presbyterian’s emergency room and discharged without any work restrictions.
R.R. at 307a-08a. He did not seek any other medical treatment for this work-related
injury between December 1, 2017 and August of 2018, when he started seeing
Singer. Id. at 308a.
Claimant also presented the testimony of Saleem Wilson (Wilson), a
former employee of Employer, at the WCJ’s June 24, 2019 hearing. Wilson testified
that he worked for Employer between October of 2017 and July of 2018, as a
delivery driver, and Rangnow was his supervisor and boss. R.R. at 315a, 316a. Each
of Employer’s trucks was assigned a fuel card, but sometimes the fuel card was
5
missing so Rangnow would allow him to call Claimant to meet him or Rangnow
would give him a fuel card with the pin number on it. Id. at 316a. He would meet
up with other drivers to fill up at gas stations at least three times per week. Id. at
318a.
Claimant also presented Singer’s February 27, 2019 deposition
testimony. Singer is a general practitioner with no board certifications. R.R. at 121a.
On August 24, 2018, he began treating Claimant for his December 1, 2017 work-
related injury. Id. at 122a. He took a history of Claimant’s injury, with Claimant
stating that he was “super dizzy” and had abdominal and back pain. Id. at 122a-23a.
Upon examination, Claimant had severe pain of a 10 out-of-10 level in his
dorsolumbar spine, with pain radiating into his extremities associated with
numbness. Id. at 123a. Claimant also had severe pain of a 10 out-of-10 level in his
cervical spine. Id. However, Claimant continued to work and did not seek additional
medical treatment. Id.
Claimant also described the July 11, 2018 work-related injury in which
he heard his back “pop” as he was lifting an item weighing 75 pounds. R.R. at 123a.
Claimant told Singer that he was not able to return to work. Id. Claimant told Singer
that he was terminated and began to work for Uber. Id.
Physical examination revealed that Claimant had a decreased range of
motion in the cervical and the dorsolumbral spine, muscle spasm, and a positive
straight leg test raising bilateral to 15 degrees. R.R. at 124a. Singer diagnosed
Claimant as suffering from cervical strain and sprain; acute cervical myositis; dorsal
strain and sprain; dorsal myositis; acute lumbosacral strain and sprain; lumbar
myositis; lumbar radiculopathy; cerebral concussion; anxiety; and post-traumatic
syndrome; however, Singer ruled out herniated nucleus pulposis. Id. Singer opined
6
that the cerebral concussion is related to the December 2017 injury, but the other
diagnoses appear to be a result of the second injury. Id. He recommended a course
of treatment including physical therapy and medication, and the physical therapy
was performed at Singer’s office. Id.
A February 8, 2019 magnetic resonance imaging (MRI) showed a
bilateral intraforaminal disc bulge at L2-3 and L3-4, and a focal midline and left
paramedian disc herniation with some impingement on the dural sac and the S1 nerve
root. R.R. at 126a. These findings show an underlying pathology that was rendered
symptomatic by the December 2017 and July 2018 work-related injuries. Id.
Singer last examined Claimant on February 8, 2019, which revealed
that Claimant had continued reduced cervical and dorsolumbar range of motion, and
tenderness to palpation in the paravertebral muscles with muscle spasm in straight
leg raising. R.R. at 127a. Claimant also had pain in his right knee with a decreased
range of motion. Id. Following 4 months of physical therapy, Claimant’s pain level
was reduced to a level of 8- or 9-out-of-10 from a 10-out-of-10. Id. Singer opined
that Claimant could not return to his pre-injury job because it would exacerbate his
condition, and that Claimant was not fully recovered from his work-related injury.
Id. at 127a-28a. Singer also opined that Claimant’s current employment with Uber
or Lyft is appropriate because Claimant is only driving, and not delivering, lifting,
carrying or moving. Id. at 128a.
Singer reviewed the records of Claimant’s August 7, 2018 treatment at
Philadelphia Health Action (PHA) a few weeks before his first examination by
Singer. R.R. at 128a. Singer acknowledged that the PHA August 7, 2018 record
mentions low back pain, but does not mention any mid back or neck pain, and does
not mention any work restrictions. Id. at 129a. Over two weeks later, on August 24,
7
2018, Singer documented complaints of neck and mid back pain, and low back pain,
all at a level of 10-out-of-10. Id.
Singer acknowledged that his opinion on causation is based on
Claimant’s history of the December 1, 2017 and July 11, 2018 work incidents. R.R.
at 130a. Singer conceded that he had no independent source of information
regarding what happened on those two dates. Id. He also conceded that he did not
review the July 12, 2018 emergency room records. Id. at 131a. He did not know
how many hours per day or how many days per week that Claimant works for his
current employer, Lyft. Id. at 130a. He was not aware of any records indicating that
Claimant was placed on light-duty restrictions between the December 1, 2017 and
July 11, 2018 work incidents. Id. Singer issued Claimant’s first work restrictions
on September 21, 2018. Id. at 132a. He conceded that the December 1, 2017
emergency room records do not show that Claimant was issued any work
restrictions. Id.
Employer presented Rangnow’s testimony at the WCJ’s April 22, 2019
hearing. Rangnow testified that he is Employer’s president and owner, which
provides FedEx ground deliveries. R.R. at 225a-26a. He hired Claimant as a driver
in October of 2017, and Claimant worked Tuesday through Saturday. Id. at 227a.
Claimant worked alone and was not permitted to use a helper because the helper
would need to be on the payroll and covered by Rangnow’s insurance. Id. at 229a-
230a. Rangnow provides the trucks to his drivers as well as a fuel card, which is to
be used solely for fuel. Id. at 230a-31a. Each driver is assigned a PIN so that all of
his or her purchases can be directly tracked for security, and the card is to remain in
the truck at all times. Id. at 231a-32a.
8
Rangnow stated that Claimant called him after his December 1, 2017
injury, and he understood that Claimant was treated for a sore back. R.R. at 233a.
Claimant did not miss any time from work following that injury. Id. at 233a-34a. In
January of 2018, Claimant sent Rangnow a text message stating that Employer’s
workers’ compensation carrier had contacted him about his claim, but he was not
interested in pursuing it because he was fully recovered from his injury. Id. at 234a-
35a.4 Between December 1, 2017, and July 12, 2018, Claimant did not complain to
Rangnow about any low back pain, right knee pain, or hip, mid back, or neck pain,
and Claimant kept working full duty throughout that period without restrictions or a
helper and did not ask for a lighter workload or a helper. Id. at 236a, 237a-38a.
Rangnow stated that he first became aware of Claimant’s alleged July
11, 2018 work-related injury about one month after Claimant’s termination on July
12, 2018. R.R. at 238a-39a. Claimant never called him about a work-related injury
on July 11, 2018; however, Claimant did call him that day for DEF. Id. at 239a.
Rangnow met Claimant on his route that day with the DEF, and Claimant did not
say that he was injured and did not appear to be injured. Id. at 240a. Claimant
finished his route that day, and there was no one else with Claimant on that day. Id.
at 240a-41a. Employer submitted Exhibit D-3, a copy of text messages between
Claimant and Rangnow on July 11, 2018, and July 13, 2018, and there is no mention
of any work-related injury. Id. at 241a-42a, 248a; see also C.R. Docket Entry 25.
4
Employer submitted Exhibit D-2, a copy of the text that Claimant sent, which reads, in
relevant part:
Hey [R]ob[.] Erie [I]nsurance keep[s] calling and texting [a]bout
workers[’] comp. I’m not interested or injured[.] I’m just stating
facts so we can be on the same page. I recovered[.] [I’]m fine!!!
R.R. at 386a. Exhibit D-2 was admitted into evidence without objection. Id. at 235a.
9
On the morning of July 12, 2018, Rangnow terminated Claimant’s
employment because there was an issue with Claimant’s personal charges associated
with his PIN on the fuel card. R.R. at 242a-44a. Claimant’s work truck used diesel
fuel, but the charges associated with his PIN number were for unleaded gasoline,
and were purchased about 20 to 25 miles away from Employer’s depot and in the
opposite direction from Claimant’s delivery area. Id. When Rangnow terminated
Claimant and explained that it was based on the fuel charges, Claimant did not
dispute it and left without an issue. Id. at 245a. Claimant also did not tell Rangnow
that he was injured the day before. Id.
On July 13, 2018, Claimant texted Rangnow asking for a letter of
termination so Claimant could get medical insurance for his family. R.R. at 246a-
47a; see also C.R. Docket Entry 25. Claimant did not tell Rangnow that he was
injured on July 11, 2018, in those text messages. R.R. at 246a-47a, 248a; see also
C.R. Docket Entry 25.5
Employer also presented the April 16, 2019 deposition testimony of Ira
Sachs, D.O. (Sachs). Sachs is a board-certified orthopedic surgeon who evaluated
Claimant on December 3, 2018. R.R. at 146a-47a, 149a. Claimant presented with
complaints of low back and right knee pain that he associated with a December 1,
2017 vehicle accident. Id. at 149a-50a. Claimant also reported a July 11, 2018
incident where he developed a sudden increase in low back pain while lifting a
package at work. Id. at 150a-51a. Claimant did not complain of neck pain, mid back
pain, pain extending into his lower legs stemming from his back, or post-concussion
symptoms such as headaches. Id. at 154a.
5
Employer’s Exhibit D-3, a copy of the text messages between Claimant and Rangnow,
was admitted into evidence without objection. R.R. at 248a.
10
Sachs testified that records of Claimant’s treatment at Presbyterian on
December 1, 2017, discuss a diagnosis of “chest pain, abrasion of the head, low back
strain and unspecified injury to the abdomen and thorax.” R.R. at 155a. The records
do not mention any neck pain or right knee pain, and they do not provide any work
restrictions. Id. at 156a-57a.
Sachs stated that records of Claimant’s treatment at Penn on July 12,
2018, indicate that Claimant recounted a history of sharp left low back pain from
lifting a box on July 11, 2018, and chronic back pain since a motor vehicle accident
the preceding year. R.R. at 157a. On examination, there was mild left low back
tenderness, but no other abnormalities were noted, and they do not provide any work
restrictions. Id. at 157a-58a; C.R. Docket Entry 28 at 18.
Sachs testified that the February 8, 2019 lumbar spine MRI showed a
midline left paramedian disc protrusion at L5-S1, with shallow bulging at L2-3 and
L3-4. R.R. at 160a-61a. His review of the scans showed no evidence of cord or
nerve root impingement, thereby ruling out a diagnosis of radiculopathy or disc
syndrome, and no evidence of trauma-related changes. Id. at 161a-62a. The MRI
showed multi-level degenerative changes. Id. at 162a.
On examination, Sachs noted that Claimant had excellent motor
strength; no sciatic list or shift to suggest spasm; no sciatic notch tenderness to
suggest radiculopathy; and no sacroiliac tenderness or spasm. R.R. at 163a.
Neurological examination of the lower extremities was normal; there was no
evidence of atrophy or wasting; and there was no evidence of sensory or reflex
abnormality that would indicate neurologic post-traumatic injury. Id. at 163a-65a.
Testing of Claimant’s right knee was normal. Id. He found no objective evidence
of any ongoing injury. Id. at 166a.
11
Based on the examination, history, and review of Claimant’s records,
Sachs opined that Claimant sustained a lumbosacral strain and sprain as a result of
the December 1, 2017 and July 11, 2018 incidents, from which he had fully
recovered as of December 3, 2018. R.R. at 167a-68a, 170a. There was no objective
evidence upon examination and review of the MRI scan to substantiate Claimant’s
ongoing complaints. Id. at 169a.
The WCJ made the following credibility determinations with respect to
the foregoing evidence:
11. Having observed Claimant’s comportment and
demeanor during testimony at the hearing, and having
reviewed the evidence of record in its entirety, this [WCJ]
finds Claimant’s testimony to be less than credible.
Claimant submitted no evidence to support his testimony
that after the December 1, 2017 injury, he had a lighter
workload or had his cousin help him with his deliveries.
Further, his testimony is not consistent with the credible
testimony of []Rangnow and the text message that he sent
to []Rangnow indicating that he was recovered from the
December 1, 2017 injury and did not want to respond to
the insurance company. His testimony regarding the
alleged July 11, 2018 injury is not consistent with the
medical records and []Rangnow’s testimony that Claimant
never mentioned the injury.
12. Having observed []Rangnow’s comportment and
demeanor during testimony, and having reviewed the
evidence of record in its entirety, this [WCJ] finds
[]Rangnow’s testimony to be credible. []Rangnow’s
testimony is supported by the text messages he discussed
and submitted.
13. Having observed []Wilson’s comportment and
demeanor during testimony, and having reviewed the
evidence of record in its entirety, this [WCJ] finds
[]Wilson’s testimony to be less than credible where it is
inconsistent with the credible testimony of []Rangnow.
12
14. This [WCJ] finds the testimony of []Sachs to be
more credible and persuasive than []Singer for the
following reasons:
a. []Sachs is a board-certified orthopedic
surgeon whereas []Singer is a general practitioner
with no board certifications.
b. []Singer’s opinions are based on the history
provided by Claimant, who this [WCJ] has found
not credible.
c. []Singer’s testimony regarding his initial
examination findings of 10 [out-]of[-]10 pain in
Claimant’s cervical and dorsolumbar spine is not
consistent with contemporaneous medical records
of PHA indicating no mention of mid to low back
pain.
d. []Sachs’ testimony is consistent with the
objective medical evidence of record. He reviewed
the films of the lumbar MRI and reasonably
explained bases for his opinions.
e. []Sachs’ opinion is consistent with
Claimant’s admission that after treating at the
emergency room on December 1, 2017, he did not
seek treatment for the December 1, 2017 injury until
he saw []Singer in August of 2018.
C.R. Docket Entries 5 and 37 at 9-10.
Based on the foregoing credible evidence, the WCJ found that
“Claimant failed to meet his burden of proving by competent and credible medical
evidence that he sustained a work injury on July 11, 2018,” and that “Claimant failed
to meet his burden of proving that he sustained a disabling injury on December 1,
2017.” C.R. Docket Entries 5 and 37 at 10. As a result, the WCJ concluded that
Claimant did not sustain his burden of proving by competent and credible evidence
that he sustained a disabling work-related injury on December 1, 2017, or that he
13
sustained a work-related injury on July 18, 2018. Id. at 11. The WCJ also concluded
that Employer sustained its burden of proving that Claimant was fully recovered
from his work-related injury as of December 3, 2018. Id. Accordingly, the WCJ
issued orders denying Claimant’s Claim Petitions and granting Employer’s
Termination Petition. Id. at 12. Claimant appealed the WCJ’s Decisions to the
Board, which affirmed the WCJ’s order by Opinions and Orders dated October 26,
2020. See C.R. Docket Entries 8 and 40. Claimant then filed the instant petition for
review of the Board’s Orders.6
II.
On appeal, Claimant argues that the Board’s Opinions and Orders
affirming the WCJ’s Decisions are not “proper” because
[t]he [Board] improperly failed to exercise its appellate
function, as the WCJ’s Decision[s] w[ere] not supported
by substantial evidence, w[ere] arbitrary and capricious
verging on bias, and w[ere] erroneous as a matter of law,
as [they] ignored significant evidence establishing [the]
occurrence of a traumatic motor vehicle accident during
the course of [Claimant]’s work for [Employer] on
December 1, 2017, subsequently aggravated by work[-
]related occupational trauma to [Claimant]’s back
culminating on July 11, 2018. The [D]ecision[s] should
also be remanded because the [Board] erroneously and
inaccurately misstated the WCJ’s Decision[s].
6
‘“Generally, agency-level decisions–such as those of the WCJ and [the Board] here–are
to be affirmed on appeal so long as the essential findings are supported by substantial evidence
and there has been no constitutional violation, procedural irregularity, or error of law.’ We defer
to the factual findings of the WCJ, who, in the workers’ compensation context, is the ‘ultimate
finder of fact and the exclusive arbiter of credibility and evidentiary weight.’” Department of
Labor and Industry v. Workers’ Compensation Appeal Board (Lin and Eastern Taste), 187 A.3d
914, 922 (Pa. 2018) (citations omitted).
14
Brief for Petitioner at 5.7
III.
Preliminarily, we note that “[t]he Board is generally viewed as a ‘body
of appellate review,’ evaluating the propriety of the WCJ’s adjudication.” Gregory
v. Workers’ Compensation Appeal Board (Narvon Builders), 926 A.2d 564, 568 (Pa.
Cmwlth. 2007) (citation omitted). On appeal from a WCJ’s decision, the Board may
only disregard the WCJ’s findings of fact if: (1) there is not competent evidence to
sustain the WCJ’s necessary findings of fact, Universal Cyclops Steel Corporation
v. Workmen’s Compensation Appeal Board (Krawczynski), 305 A.2d 757, 761 (Pa.
Cmwlth. 1973); (2) the WCJ’s findings of fact are insufficient, or the WCJ failed to
make a finding of fact on a crucial issue necessary for the proper application of the
Act, L&S Tasta Pizza, Inc. v. Lundy, 366 A.2d 592, 593 (Pa. Cmwlth. 1976); or (3)
the WCJ’s findings of fact are insufficient to enable the Board to determine why a
claimant failed to sustain his burden of proof, Armco, Inc. v. Workmen’s
7
Pa. R.A.P. 2111(a)(4) provides that “[t]he brief of the appellant . . . shall consist of the
following matters, separately and distinctly entitled and in the following order: . . . Statement of
the questions involved.” In turn, Pa. R.A.P. 2116(a) states, in relevant part:
The statement of the questions involved must state concisely the
issues to be resolved, expressed in the terms and circumstances of
the case but without unnecessary detail. The statement will be
deemed to include every subsidiary question fairly comprised
therein. No question will be considered unless it is stated in the
statement of questions involved or is fairly suggested thereby.
Accordingly, to the extent that Claimant raises issues in his appellate brief that are not “fairly
suggested” by the quoted Statement of Questions Involved, they are waived for purposes of appeal.
See, e.g., Mooney v. Greater New Castle Development Corp., 510 A.2d 344, 348 n.4 (Pa. 1986)
(“The Superior Court refused to decide this question because it was not set forth in the statement
of questions involved as required by Pa. R.A.P. 2116; and therefore, it was not properly before
that court. For this reason, we will not consider the question.”).
15
Compensation Appeal Board (Carrodus), 590 A.2d 827, 831 (Pa. Cmwlth. 1991).
The Board exceeds its appellate authority by expanding the breadth of the WCJ’s
findings where that expansion is not supported by the record. Department of Labor
and Industry v. Workers’ Compensation Appeal Board (Lin), 155 A.3d 103, 107-08
(Pa. Cmwlth. 2017), aff’d, 187 A.3d 914 (Pa. 2018).
Additionally, to sustain an award of benefits, a claimant has the burden
to establish that he “suffered a work-related injury and that this injury resulted in”
disability. Ruhl v. Workmen’s Compensation Appeal Board (Mac-It Parts, Inc.), 611
A.2d 327, 329 (Pa. Cmwlth. 1992). Where an employer has issued a medical-only
NCP, the burden is on a claimant seeking wage loss benefits to prove that the injury
has resolved into a “disability” causing a loss of earning power. Orenich v. Workers’
Compensation Appeal Board (Geisinger Wyoming Valley Medical Center), 863
A.2d 165, 170 (Pa. Cmwlth. 2004). During the pendency of the claim petition, the
claimant must demonstrate “that the injury continues to cause disability.” Ohm v.
Workers’ Compensation Appeal Board (Caloric Corporation), 663 A.2d 883, 886
(Pa. Cmwlth. 1995). An employer has no obligation to present any evidence during
a claim petition proceeding. Coyne v. Workers’ Compensation Appeal Board
(Villanova University), 942 A.2d 939, 954 (Pa. Cmwlth. 2008).
Moreover, “[t]o succeed in a termination petition, the employer bears
the burden of proving that the claimant’s disability has ceased and/or that any current
disability is unrelated to the claimant’s work injury.” Paul v. Workers’
Compensation Appeal Board (Integrated Health Services), 950 A.2d 1101, 1104 (Pa.
Cmwlth. 2008). An employer satisfies its burden of proof to show that a claimant is
fully recovered when the employer provides unequivocal medical testimony “that it
is [the medical expert’s] opinion, within a reasonable degree of medical certainty,
16
that the claimant is fully recovered, can return to work without restrictions, and that
there are no objective medical findings which either substantiate the claims of pain
or connect them to the work injury.” Udvari v. Workmen’s Compensation Appeal
Board (USAir, Inc.), 705 A.2d 1290, 1293 (Pa. 1997).
As outlined above, in this matter, the WCJ specifically credited the
testimony of Employer’s medical expert, Sachs, to support her Decisions denying
Claimant’s Claim Petitions and granting Employer’s Termination Petition. Sachs
testified, in relevant part, as follows:
Q. Doctor, after the history you obtained from
[Claimant], your physical examination findings and your
review of medical records, did you render an opinion as to
the condition of [Claimant] as of when you examined him
on December 3, 2018?
A. Yes.
Q. And what was your opinion?
A. Resolved lumbosacral strain and sprain.
And I qualify that by saying I didn’t find any
clinical evidence of lumbar strain and sprain or a disc
abnormality and/or injury to the knee from either dates of
injury, December 1[, 20]17[,] or July 11[, 20]18.
Q. And that’s true as of the date of your exam on
December 3, 2018?
A. Correct.
Q. So you found no objective evidence of any injury at
that point?
A. I did not.
Q. In terms of either injury date, does [Claimant]
require any further medical care?
17
A. No.
Q. Does he require any restrictions of any kind as it
pertains to his pre-injury job as a FedEx delivery man?
A. No.
Q. Doctor, how would you classify any right knee
injury that [Claimant] may have sustained on December 1,
2017, as alleged?
A. Well, I don’t know the mechanism of injury. So the
only thing I could testify to is, by the time I saw him, I
found no evidence of any residual injury.
Q. There was nothing to substantiate his ongoing
complaints of non-specific pain to the right knee?
A. Correct.
Q. Doctor, you did review []Singer’s narrative report.
And he has a litany of what he claims are work-related
diagnoses as they relate to both dates of injury.
Do you agree or disagree with those diagnoses?
A. Disagree.
Q. And what’s the basis for your opinion in that
regard?
A. So, again, there are subjective complaints, but I
found no objective clinical evidence of residuals. And the
MRI scan that I reviewed was kind of essentially benign,
no cord or nerve root compression.
And kind of the -- you know, you can’t be claiming
post-traumatic disc abnormalities and then go into the
emergency room with no physical findings. So for all
those reasons, I drew my conclusions.
Q. Doctor, even assuming for the sake of argument that
[Claimant] sustained some sort of an aggravation or
exacerbation on July 11, 2018, of his lumbar spine injury
of December 1, 2017, as of the date of your examination,
18
did you find any ongoing injury or condition of the lumbar
spine in that regard?
A. No.
Q. Is there anything in the MRI study that would
correlate or substantiate [Claimant’s] subjective
complaints in terms of when he presented to you on
December 3, 2018?
A. I found no evidence of that at the time of my clinical
evaluation.
Q. And, Doctor, you classified the December 1, 2017
injury to the lumbar spine as a strain and sprain?
A. Yes.
Q. And he achieved full recovery as of the date of your
exam?
A. In my view.
Q. Doctor, have all of your opinions been expressed
here today within a reasonable degree of medical
certainty?
A. Yes.
Q. One last question, Doctor. Did you find any
evidence in the records that you reviewed of [Claimant
being] placed under any formal work restrictions after
either of these two incidents?
A. No.
R.R. at 167a-71a.
In reviewing the foregoing testimony, this Court has explained:
Substantial evidence is such relevant evidence as a
reasonable person might accept as adequate to support a
conclusion. Hoffmaster v. Workers’ Compensation
19
Appeal Board (Senco Products, Inc.), 721 A.2d 1152 (Pa.
Cmwlth. 1998). In performing a substantial evidence
analysis, this Court must view the evidence in a light most
favorable to the party [that] prevailed before the factfinder.
Id. Moreover, we are to draw all reasonable inferences
which are deducible from the evidence in support of the
factfinder’s decision in favor of that prevailing party. Id.
Furthermore, in a substantial evidence analysis where both
parties present evidence, it does not matter that there is
evidence in the record which supports a factual finding
contrary to that made by the WCJ; rather, the pertinent
inquiry is whether there is any evidence which supports
the WCJ’s factual finding. Id. It 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. Id. As such, the WCJ may reject the testimony
of any witness in whole or in part, even if that testimony
is uncontradicted. Id.
Sharkey v. Workers’ Compensation Appeal Board (Federal Express), 786 A.2d
1035, 1038 (Pa. Cmwlth. 2001) (emphasis added).
Sachs’ testimony, coupled with the corroborating testimony of
Rangnow and the corroborating text messages between Claimant and Rangnow,
provides competent substantial evidence to support the WCJ’s Decisions in this
matter. When viewed in a light most favorable to Employer, and drawing all
reasonable inferences deducible therefrom, this evidence supports the WCJ’s
determination that Claimant failed to meet his burden of proving that he sustained
an ongoing disabling work-related injury to support the award of workers’
compensation benefits, and that Employer was entitled to the termination of
Claimant’s benefits as of December 3, 2018. It is of no moment that Claimant
presented evidence that would support contrary conclusions, as it was solely for the
WCJ to assess the credibility of the evidence that was presented and to accept it as
credible, or reject it as not credible, even if it was uncontradicted. In short, we will
20
not accede to Claimant’s request to review the WCJ’s credibility determinations in
this regard, and the Board did not abdicate its appellate function by refusing to accept
Claimant’s evidence over that offered by Employer as a basis to reverse the WCJ’s
Decisions.
IV.
A review for capricious disregard of competent evidence is an
appropriate component of appellate review in any case in which the question is
properly raised before a court. Leon E. Wintermyer, Inc. v. Workers’ Compensation
Appeal Board (Marlowe), 812 A.2d 478, 487 (Pa. 2002). A capricious disregard of
evidence occurs where the “findings reflect a deliberate disregard of competent
evidence that logically could not have been avoided in reaching the decision . . . .”
Pryor v. Workers’ Compensation Appeal Board (Colin Service Systems), 923 A.2d
1197, 1205 (Pa. Cmwlth. 2007). Where substantial evidence supports the findings,
and those findings support the conclusions, it should remain a rare instance where
an appellate court disturbs an adjudication based on capricious disregard.
Wintermyer, 812 A.2d at 487. As a result, capricious disregard of evidence occurs
when the fact finder ignores relevant, competent evidence. Williams v. Workers’
Compensation Appeal Board (USX Corp.-Fairless Works), 862 A.2d 137, 145 (Pa.
Cmwlth. 2004). However, capricious disregard does not exist when a WCJ has
considered and rejected evidence. Id.
Contrary to Claimant’s assertions, as outlined above, the WCJ
considered and rejected Claimant’s evidence regarding the severity of the injury
resulting from the December 1, 2017 accident and that he sustained a work-related
injury on July 11, 2018. This rejection of Claimant’s evidence does not constitute a
21
capricious disregard of such evidence. See, e.g., Williams, 862 A.2d at 145 (“[T]he
WCJ did not deliberately ignore [the medical expert’s] testimony–as evidenced by
the WCJ’s extensive summation thereof in [the f]inding [of fact], which includes a
summation of [the expert’s] testimony on direct and cross-examinations–but merely
considered, and then rejected as not credible, said evidence. Such an express
consideration and rejection, by definition, is not capricious disregard.”).
As articulated above, the WCJ is the ultimate fact finder, and as such
has complete authority over credibility determinations and the weighing of evidence.
Department of Labor and Industry, 187 A.3d at 922. 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. Dorsey
v. Workers’ Compensation Appeal Board (Crossing Construction Co.), 893 A.2d
191, 194-95 (Pa. Cmwlth. 2006). “Some articulation of the actual objective basis
for the credibility determination must be offered for the decision to be a ‘reasoned’
one which facilitates effective appellate review.” Id. at 194-95 (quoting Daniels v.
Workers’ Compensation Appeal Board (Tristate Transport), 828 A.2d 1043, 1053
(Pa. 2003)). There are countless objective factors that may support a WCJ’s
credibility determinations, and such factors must be identified in the WCJ’s decision.
Dorsey, 893 A.2d 195.
Nevertheless, we have repeatedly stressed that Section 422(a) of the
Act8 does not permit a party to challenge or second-guess a WCJ’s reasons for
8
Section 422(a) of the Act states that
[a]ll parties to an adjudicatory proceeding are entitled to a reasoned
decision containing findings of fact and conclusions of law based
upon the evidence as a whole which clearly and concisely states and
explains the rationale for the decisions so that all can determine why
(Footnote continued on next page…)
22
credibility determinations. Id.; Kasper v. Workers’ Compensation Appeal Board
(Perloff Brothers, Inc.), 769 A.2d 1243, 1244 (Pa. Cmwlth. 2001). In Kasper, we
declined the claimant’s “invitation to individually scrutinize each of the WCJ’s
reasons for his credibility determination.” Id. We explained that
[d]eciding credibility is the quintessential function of the
fact-finder, particularly one who sees and hears the
testimony. It is not an exact science, and the ultimate
conclusion comprises far more than a tally sheet of its
various components. We will not take the statutory
mandate that a WCJ explain reasons for discrediting
evidence as a license to undermine the exercise of this
critical function by second guessing one or more of its
constituent parts.
Id. (footnote omitted).
Moreover, where, as here, Claimant, Wilson, and Rangnow testified in
person before the WCJ, the WCJ could base her credibility determinations upon her
observation of these witnesses during the course of their testimony. As our Supreme
Court has explained:
[W]hen the issue involves the credibility of contradictory
witnesses who have actually testified before the WCJ, it is
appropriate for the [WCJ] to base his or her determination
upon the demeanor of the witnesses. In such an instance,
there often is not much to say, nor is there a need to say
and how a particular result was reached. The [WCJ] shall specify
the evidence upon which the [WCJ] relies and state the reasons for
accepting it in conformity with this section. When faced with
conflicting evidence, the [WCJ] must adequately explain the reasons
for rejecting or discrediting competent evidence. Uncontroverted
evidence may not be rejected for no reason or for an irrational
reason; the [WCJ] must identify that evidence and explain
adequately the reasons for its rejection. The adjudication shall
provide the basis for meaningful appellate review.
77 P.S. §834.
23
much, in order for a reviewing body to determine that the
decision was reasoned. Such a credibility determination
may involve nothing more than the fact[]finder’s on-the-
spot, and oftentimes instinctive, determination that one
witness is more credible than another. The basis for the
conclusion that certain testimony has the “ring of truth,”
while other testimony does not, may be difficult or
impossible to articulate-but that does not make such
judgments invalid or unworthy of deference. To the
contrary, people routinely undertake affairs of
consequence based upon their judgment of the credibility
and reliability of others, or their assessment of the mettle
and character of the persons with whom they are dealing.
Daniels, 828 A.2d at 1052-53. In sum then, unless made arbitrarily or capriciously,
a WCJ’s credibility determinations will not be disturbed when the basis for such is
present in the record on appeal. Empire Steel Castings, Inc. v. Workers’
Compensation Appeal Board (Cruceta), 749 A.2d 1021, 1027 (Pa. Cmwlth. 2000).
After careful review of the certified record in this matter, we conclude
that the WCJ’s credibility determinations are supported by ample substantial record
evidence. Moreover, as outlined above, the WCJ extensively and exhaustively
outlined the reasons for her credibility determinations, and, as a result, these
determinations are not subject to our appellate review. Thus, we find the Board did
not abdicate its appellate function or err by affirming the WCJ’s Decisions in this
regard.
V.
Finally, the Board did not erroneously and inaccurately misstate the
WCJ’s Decisions. Claimant first asserts that the Board erred in determining that the
WCJ did not commit error by failing to render credibility determinations regarding
Claimant’s consistent testimony at his unemployment compensation hearing that
corroborates the evidence submitted in support of his Claim Petitions herein.
24
However, Claimant submitted the transcript of the unemployment compensation
hearing solely for the limited purpose of rebutting Rangnow’s testimony during the
instant proceedings. Specifically, Claimant’s counsel argued for the admission of
the transcript as follows:
[Counsel]: I would submit, Your Honor, that [Rangnow]
certainly had the opportunity to have counsel present. It
actually states that in the transcript. He voluntarily waived
his right to counsel at that hearing. It is testimony given
under oath and, therefore, I submit that it is admissible.
[WCJ]: You are representing to me that there’s
evidence in here --
[Counsel]: Discrepancies between the --
[WCJ]: So it’s rebuttal.
[Counsel]: Rebuttal, correct.
[WCJ]: I am going to admit it.
[Counsel]: Thank you, Judge.
R.R. at 303a-04a.
Accordingly, in her Decisions, the WCJ stated that the unemployment
compensation hearing transcript “was admitted solely for purposes of rebutting
[Rangnow’s] testimony.” C.R. Docket Entries 5 and 37 at 9. The WCJ further found
that “Rangnow’s testimony at the unemployment compensation hearing was
substantially similar to his testimony before this [WCJ].” Id. Thus, the Board did
not improperly state that the WCJ did not err in failing to make credibility
determinations with respect to Claimant’s testimony at the unemployment
compensation hearing because the transcript at that hearing was not admitted to
25
bolster Claimant’s testimony in this matter, but solely to impeach Rangnow’s
testimony in these proceedings.
Claimant next submits that the Board misstated the WCJ’s decision by
indicating that the WCJ found Wilson’s testimony not credible because it conflicted
with Rangnow’s testimony when, in fact, the WCJ found that Wilson’s testimony
was not credible based solely on his comportment and demeanor. However, as
outlined above, in her Decisions, the WCJ based her credibility determination on
both Wilson’s comportment and demeanor and the inconsistency of Wilson’s
testimony with Rangnow’s credible testimony. As the WCJ stated that, “[h]aving
observed []Wilson’s comportment and demeanor during testimony and having
reviewed the evidence of record in its entirety, this [WCJ] finds []Wilson’s
testimony to be less than credible where it is inconsistent with the credible testimony
of []Rangnow.” C.R. Docket Entries 5 and 37 at 9-10.
Claimant also asserts that the Board misstated the WCJ’s Decisions by
excusing her failure to make necessary credibility determinations regarding non-live
testimony, i.e., testimony that he gave at the October 30, 2018 deposition and at the
unemployment compensation hearing. However, as noted above, the transcript of
the unemployment compensation hearing was admitted solely to rebut Rangnow’s
testimony in these proceedings so no credibility determination with respect to
Claimant’s testimony therein was required. Regarding Claimant’s deposition
testimony, again, the WCJ based her credibility determination both on his
comportment and demeanor at the in-person hearing and its inconsistency with
Rangnow’s in-person testimony and the medical evidence. See C.R. Docket Entries
5 and 37 at 9. As a result, the Board did not misstate the WCJ’s Decisions regarding
her credibility determination of Claimant’s in-person and deposition testimony.
26
Accordingly, the Board’s Orders are affirmed.
MICHAEL H. WOJCIK, Judge
27
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Christopher Burton, :
:
Petitioner :
:
v. : No. 1152 C.D. 2020
:
RSVB Couriers (Workers’ :
Compensation Appeal Board), :
:
Respondent :
ORDER
AND NOW, this 13th day of April, 2022, the Orders of the Workers’
Compensation Appeal Board dated October 26, 2020, are AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge