Opinion

Olympus and Sompo America Insurance Co. v. D. Eiselen (WCAB)

Court
Commonwealth Court of Pennsylvania
Filed
Oct 23, 2023
Status
Unpublished
On the bench
Cohn Jubelirer, President Judge
Cited by
0 cases
Authority
More cited than 14.0%

The opinion

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Olympus and Sompo America :

Insurance Company, :

Petitioners :

:

v. : No. 38 C.D. 2022

: Submitted: September 9, 2022

Dana Eiselen (Workers’ Compensation :

Appeal Board), :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE LORI A. DUMAS, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

PRESIDENT JUDGE COHN JUBELIRER FILED: October 23, 2023

Olympus and Sompo America Insurance Company (together, Employer)

petition for review of the Order of the Workers’ Compensation Appeal Board

(Board) that affirmed the decision of a Workers’ Compensation Judge (WCJ)

granting the Petition to Review Compensation Benefits (Review Petition) filed by

Dana Eiselen (Claimant) and denying Employer’s Petition to Terminate

Compensation Benefits (Termination Petition). On appeal, Employer argues that

Claimant’s medical expert’s testimony, upon which the WCJ relied to expand the

description of Claimant’s work-related injuries and find that Claimant was not fully

recovered, was not legally competent to support those determinations. Employer

further argues that the WCJ’s decision was not reasoned as required by Section

422(a) of the Workers’ Compensation Act (Act),1 and, therefore, should have been

reversed by the Board. Upon review, we affirm.

I. BACKGROUND

A. The Petitions

Claimant sustained work-related injuries on March 30, 2017, described in a

Notice of Temporary Compensation Payable (NTCP) as “a contusion and multiple

head injuries.” (WCJ Decision, Finding of Fact (FOF) ¶ 1.) The NTCP’s narrative

described how the injuries occurred as “[Claimant] fell ill after eating dinner 3/29

with colleague. Sick all night. Collapsed in morning 3/30 on hard surface and hit

head. Went to [emergency room] and then was admitted to hospital 3/30.”

(Reproduced Record (R.R.) at 1a.) The NTCP converted to a Notice of

Compensation Payable (NCP) by operation of law. (FOF ¶ 1.)

Claimant has returned to work for Employer without a loss of earnings,

resulting in the suspension of her wage loss benefits, which leaves only her ongoing

receipt of medical benefits at issue. (Id. ¶¶ 6d, 18.) On May 30, 2019, Employer

filed the Termination Petition, averring that Claimant had fully recovered from her

work-related injuries as of January 2, 2019, based on the opinion of Leonard Bruno,

M.D. (Id. ¶ 3.) Claimant filed the Review Petition on December 10, 2019, seeking

to expand the description of the work injury to include a concussion. (Id. ¶ 4.) Both

Employer and Claimant filed answers to the others’ Petitions, denying the

allegations therein. (R.R. at 8a, 13a.)

1

Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 834.

2

B. Proceedings Before the WCJ

The Petitions were assigned to the WCJ, who held multiple hearings.

Claimant testified, and the parties presented the deposition testimonies of their

respective experts, Dr. Bruno for Employer, and Daniele Shollenberger, C.R.N.P.

(Ms. Shollenberger) for Claimant.

Claimant testified2 concerning the work-related incident and the treatment she

received. Claimant’s general practitioner referred her to Ms. Shollenberger, a

Certified Registered Nurse Practitioner (CRNP), who manages Claimant’s

concussion treatment plan, which includes speech therapy, physical therapy, and

massage therapy. Claimant has challenges with focusing, short-term memory,

speaking, sleeping through the night, and insomnia. She continues to have pain in

her shoulder and neck and headaches multiple times a week, and performing daily

activities results in mental fatigue. Prior to the work injuries, Claimant did not have

issues with her memory, speech, and headaches. Since the COVID-19 pandemic,

Claimant has worked from home, which has resulted in regression in some of the

improvements in her speech, memory, and focus. Claimant denied having any prior

head injuries or that she felt listless or had less stamina or energy three to four weeks

before she sustained the work injuries. Claimant acknowledged being diagnosed

with aplastic anemia in June 2017, for which she received a bone marrow transplant,

a week of chemotherapy, and some physical and occupational therapy. Claimant’s

aplastic anemia treatment ended in August 2018, after which her cognitive and

occupational treatment for the work injuries resumed. Claimant does not feel fully

recovered from her work-related injuries.

2

Transcripts of Claimant’s March 6, 2020 deposition and July 28, 2020 video hearing

testimony are found, respectively, at Certified Record Item Nos. 24 and 17 and pages 20a-52a and

233a-47a of the Reproduced Record. This testimony is summarized in Findings of Fact 5 and 6.

3

Ms. Shollenberger3 is an autonomous provider who works with the chief of

neurosurgery if needed, is the Program Director of the Concussion and Head Trauma

Program (Concussion Program) at the Lehigh Valley Health Network, and treats

concussion patients. Ms. Shollenberger first saw Claimant in April 2017, when she

obtained a history of the work-related incident, and Claimant’s immediate treatment,

which included a diagnosis of a concussion. Following Ms. Shollenberger’s

examination of Claimant, which revealed continued trouble with sleeping, fatigue,

light sensitivity, decreased appetite, dizziness, headaches, posterior cervical pain,

trapezius pain, issues with balance, and difficulty in focusing of the eyes,

concentration, and focus, Ms. Shollenberger, too, diagnosed Claimant with a

concussion. Ms. Shollenberger continued to treat Claimant as of April 1, 2020,

during which time Claimant had ongoing symptoms. Ms. Shollenberger changed

Claimant’s diagnosis to post-concussive syndrome because Claimant’s symptoms

continued for more than a month after initial treatment. In Ms. Shollenberger’s

opinion, Claimant was not fully recovered. Ms. Shollenberger was aware of

Claimant’s treatment for aplastic anemia, during which time she did not see

Claimant. Ms. Shollenberger did not review those records and acknowledged that

chemotherapy can cause fatigue and cognitive issues. She also acknowledged that

it would be abnormal to develop new symptoms of post-concussive syndrome three

years after the trauma, and she described Claimant’s concussion as “mild” because

it was not accompanied by head trauma and positive diagnostic studies. (FOF ¶ 7n-

o.)

3

Ms. Shollenberger’s deposition testimony is found at Certified Record Item No. 19 and

pages 129a-96a of the Reproduced Record. It is summarized in Finding of Fact 7.

4

Dr. Bruno,4 a board-certified neurosurgeon, performed an Independent

Medical Examination of Claimant on October 29, 2018, during which Claimant

complained of intermittent headaches, balance issues, and cognitive function

impairment as a result of the incident, and described her treatment for aplastic

anemia. The results of Dr. Bruno’s physical and neurological examination of

Claimant were normal, with no balance, gait, or memory issues, and no positive

neurologic findings. Dr. Bruno’s review of Claimant’s initial hospital records

revealed a normal computerized tomography (CT) scan and no reference to skull

trauma, and Claimant’s records from April 26, 2017, reflected complaints of

decreased energy from a severe viral infection in January 2017. This viral infection,

Dr. Bruno opined, caused Claimant’s aplastic anemia, which accounted for

Claimant’s complaints of having less energy than normal. Based on his examination

of Claimant and Claimant’s medical records, Dr. Bruno concluded that the March

30, 2017 incident was related to Claimant’s aplastic anemia; her work-related injury

was limited to a head contusion, from which she had fully recovered; she did not

suffer a work-related concussion; and her ongoing cognitive issues, sensitivity to

light, headaches, and visual disturbances were the result of the aplastic anemia and

related chemotherapy. According to Dr. Bruno, Claimant no longer required

treatment for the work-related head contusion and could return to full duty without

restrictions.

Upon her review of the record, the WCJ credited Claimant’s testimony, citing

the WCJ’s personal observations of Claimant and the consistency of Claimant’s

testimony with her medical records. (FOF ¶ 10.) As between the medical witnesses,

4

Dr. Bruno’s deposition testimony is found at Certified Record Item No. 23 and pages 73a-

108a of the Reproduced Record. It is summarized in Finding of Fact 8.

5

the WCJ found Ms. Shollenberger’s testimony more persuasive than Dr. Bruno’s

testimony because

Ms. Shollenberger has had the opportunity to observe Claimant over a

longer period of time than Dr. Bruno. In addition, the medical records

from Claimant’s hospital stay immediately following her fall diagnose

a concussion, Claimant’s symptoms are consistent with post-

concussive syndrome[,] and she continues to work despite her

symptoms[,] elevating [Claimant’s] credibility and that of her medical

expert.

(Id. ¶ 11.)

Having credited Ms. Shollenberger’s opinions, the WCJ found that Claimant

had met her burden of proving that the description of the work injury should include

a concussion and post-concussive syndrome, granted the Review Petition, and

modified that description accordingly. (Id. ¶¶ 13-14; WCJ Decision, Conclusion of

Law (COL) ¶ 2.) Finding that Claimant’s work injuries include a concussion and

post-concussive syndrome, the WCJ rejected Dr. Bruno’s opinion of full recovery

because he did not address those injuries. (FOF ¶ 12.) Thus, the WCJ found that

Employer did not meet its burden of proof on the Termination Petition and denied

the same. (Id. ¶ 15; COL ¶ 3.)

C. Appeal to the Board and the Board’s Opinion

Employer appealed to the Board, raising the same arguments as it does here.

Upon review, the Board affirmed the WCJ’s decision. The Board held that

Pennsylvania courts have recognized that nurses may provide competent, medical

expert opinions because their training and experiences make them more

knowledgeable in that field than an ordinary individual. (Board Opinion (Op.) at 7

(citing Freed v. Geisinger Med. Ctr., 5 A.3d 212 (Pa. 2010); Miller v. Brass Rail

6

Tavern, Inc., 664 A.2d 525 (Pa. 1995)).) Citing Ms. Shollenberger’s credentials as

a registered nurse and CRNP in the field of neurology and brain trauma, and

concussions in particular, the Board found no abuse of discretion or error in the WCJ

finding Ms. Shollenberger competent to opine as to Claimant’s condition and the

causal connection between the work incident and that condition. (Id. at 8-9.) The

Board noted that because Claimant did not have to disprove a causal connection

between her concussion and aplastic anemia, Ms. Shollenberger’s limited

knowledge of aplastic anemia went to the weight, not competency, of her testimony.

(Id. at 9.) The Board further held the WCJ’s decision was reasoned because it

summarized the testimony presented, provided objective reasons for crediting Ms.

Shollenberger’s competent testimony and rejecting Dr. Bruno’s contrary testimony,

and allowed for adequate appellate review. For these reasons, the Board found no

error in the WCJ’s decision granting the Review Petition and denying the

Termination Petition. Employer now petitions this Court for review.5, 6

II. DISCUSSION

A. General Legal Principles

Section 413(a) of the Act authorizes WCJs to modify an NCP if the

description of the injury contained therein is incorrect, 77 P.S. § 771,7 and WCJs are

also authorized to expand the description of a work injury to include additional

5

This Court’s scope of review “is limited to determining whether necessary findings of

fact are supported by substantial evidence, whether an error of law was committed, or whether

constitutional rights were violated.” Elberson v. Workers’ Comp. Appeal Bd. (Elwyn, Inc.), 936

A.2d 1195, 1198 n.2 (Pa. Cmwlth. 2007).

6

Employer requested supersedeas from this Court, which we denied by Memorandum

Opinion and Order dated May 10, 2022.

7

Section 413(a) states, relevantly, that “[a WCJ] may, at any time, review and modify or

set aside a [NCP] . . . if it be proved that such [NCP] was in any material respect incorrect.” 77

P.S. § 771.

7

injuries, Commercial Credit Claims v. Workmen’s Compensation Appeal Board

(Lancaster), 728 A.2d 902, 902, 904 (Pa. 1999). In a review petition seeking to add

an injury, where the causal relationship to the work injury is not obvious, a claimant

bears the burden of proving such causal relationship through unequivocal medical

evidence. AT & T v. Workers’ Comp. Appeal Bd. (Hernandez), 707 A.2d 649, 653

(Pa. Cmwlth. 1998). If the claim is based on an NCP being incorrect when originally

issued, the claimant must “establish that a material mistake of fact or law was made

at the time the NCP was issued.” Anderson v. Workers’ Comp. Appeal Bd. (Pa.

Hosp.), 830 A.2d 636, 641 (Pa. Cmwlth. 2003).

In contrast, the burden in a termination proceeding is on the employer, which

must demonstrate that the claimant has fully recovered from the work-related

injuries and can return to their pre-injury position without restrictions or that any

remaining disability is unrelated to the work injuries. Udvari v. Workmen’s Comp.

Appeal Bd. (US Air), 705 A.2d 1290, 1293 (Pa. 1997). Where a claimant has

ongoing subjective complaints, termination may be obtained where an employer’s

medical expert unequivocally testifies that the claimant is fully recovered and can

return to work without restriction and there is no objective medical evidence that

substantiates the complaints or relates them to the work injury. Id. A claimant has

no burden of proving anything in a termination proceeding. Cent. Park Lodge

v. Workers’ Comp. Appeal Bd. (Robinson), 718 A.2d 368, 370 (Pa. Cmwlth. 1998).

It is well settled that WCJs are the factfinders and “sole arbiter[s] of

credibility, and where [their] findings are supported by substantial, competent

evidence, we may not disturb them on appeal.” AT & T, 707 A.2d at 655. As

factfinder, a WCJ “is free to accept or reject the testimony of any witness, including

a medical witness, in whole or in part.” Greenwich Collieries v. Workmen’s Comp.

8

Appeal Bd. (Buck), 664 A.2d 703, 706 (Pa. Cmwlth. 1995). However, the legal

competency of a medical witness’s testimony is a question of law fully reviewable

by this Court. Swigart v. Workers’ Comp. Appeal Bd. (City of Williamsport), 131

A.3d 117, 119 (Pa. Cmwlth. 2015). “Competency[,] when applied to medical

evidence, is merely a question of whether the witness[’s] opinion is sufficiently

definite and unequivocal to render it admissible.” Cerro Metal Prods. v. Workers’

Comp. Appeal Bd. (Plewa), 855 A.2d 932, 937 (Pa. Cmwlth. 2004). “A medical

expert’s opinion is not rendered incompetent unless it is solely based on inaccurate

or false information.” Am. Contracting Enters., Inc. v. Workers’ Comp. Appeal Bd.

(Hurley), 789 A.2d 391, 396 (Pa. Cmwlth. 2001) (emphasis in the original). Medical

testimony is “unequivocal if the medical witness, after providing a foundation,

testifies that, in [the witness’s] professional opinion, certain facts exist, or that [the

witness] believes or thinks certain facts exist, so long as the medical witness does

not recant the opinion or belief first expressed.” AT & T, 707 A.2d at 653. “Our

review [of a medical expert’s testimony] must encompass the witness’[s] entire

testimony, and not merely isolated statements, in reaching our determination.”

Swigart, 131 A.3d at 119 (quoting Buchanan v. Workmen’s Comp. Appeal Bd. (City

of Phila.), 659 A.2d 54, 56 (Pa. Cmwlth. 1995)) (emphasis in original). With these

principles in mind, we turn to the issues raised by Employer.

B. Competency

Employer first argues the WCJ erred in relying on Ms. Shollenberger’s

testimony to grant the Review Petition and deny the Termination Petition.8

Employer’s challenge to the legal competency of Ms. Shollenberger’s testimony is

8

We have combined Employer’s first two issues, which attack the legal competency of

Ms. Shollenberger’s opinions.

9

three-fold: she is not a medical doctor; she lacks the foundational education and

expertise to differentiate between symptoms related to aplastic anemia and the

treatment for that condition and those related to concussions; and she could not

testify regarding Claimant’s aplastic anemia because it is outside her specialty per

the State Board of Nursing’s regulations. We address these challenges in turn.

Employer’s first challenge focuses on Ms. Shollenberger being a CRNP, not

a medical doctor. However, in Freed, our Supreme Court reversed its prior decision

in Flanagan v. Labe, 690 A.2d 183 (Pa. 1997), in which the Supreme Court held that

a nurse was precluded from offering opinion testimony as to the identity and cause

of a medical condition. In doing so, the Supreme Court explained that

in the context of legal proceedings, if a witness has any reasonable

pretension of specialized knowledge on the relevant subject, [the

witness] may be offered as an expert witness, and the weight to be given

[that] testimony is for the trier of fact to determine. Rule 702 of the

Pennsylvania Rules of Evidence also provides that “a witness qualified

as an expert by knowledge, skill, experience, training or education may

testify.” Pa.R.E. 702.

Freed, 5 A.3d 216-17 (citation omitted). Recognizing that “there are any number of

ways a nurse might obtain expertise that is beyond the ordinary range of training,

knowledge, intelligence, or expertise,” the Supreme Court held that “an otherwise

competent and properly qualified nurse is not prohibited . . . from giving expert

testimony at trial regarding medical causation.” Id. at 214, 217.

Accordingly, we discern no basis to conclude that Ms. Shollenberger is not

“an otherwise competent and properly qualified nurse [who] is not prohibited . . .

from giving expert testimony . . . regarding medical causation.” Freed, 5 A.3d at

214. Notably, Employer did not object to Ms. Shollenberger testifying or otherwise

challenge her qualifications during her deposition. And, reviewing those

10

qualifications, which include 40 years working as a registered nurse and CRNP,

creating and directing a concussion and head trauma program, and treating 50

patients in that program weekly, there can be no reasonable dispute that Ms.

Shollenberger possesses the training and experience necessary to establish that she

has a “reasonable pretension to specialized knowledge,” particularly on the topics of

concussions and head trauma. Id. at 216. Thus, the fact that Ms. Shollenberger is

not a medical doctor is not dispositive as to her competency to provide testimony

regarding the medical causation, as well as scope and continuing nature, of

Claimant’s work-related head injuries.

Employer next asserts that Ms. Shollenberger’s testimony was not legally

competent because she did not and could not, due to her lack of medical training and

review of Claimant’s records, distinguish between a concussion and aplastic anemia

as causing Claimant’s ongoing symptoms. In this regard, Employer cites Spotts

v. Workmen’s Comp. Appeal Bd. (Superior Tube Co.), 541 A.2d 446 (Pa. Cmwlth.

1988), to argue a medical witness’s lack of knowledge of the underlying diagnosis

makes their testimony “equivocal and incompetent as a matter of law.” (Employer’s

Br. at 14.) Employer’s arguments assume, however, that Ms. Shollenberger had to

address Claimant’s aplastic anemia as a potential cause of Claimant’s condition and

that the failure to review records or inability to treat some alleged alternative

diagnosis goes to the competency of the testimony. We agree with the Board,

however, that Claimant was not required to disprove that her concussion and post-

concussive syndrome, and/or ongoing symptoms, were the result of the aplastic

anemia, and that whether Ms. Shollenberger reviewed Claimant’s records for her

aplastic anemia went to the weight, not legal competency, of Ms. Shollenberger’s

testimony. (Board Op. at 9.)

11

To meet her burden of proof on the Review Petition, Claimant was required

to prove her theory of the scope and nature of her work-related injuries. Claimant

sought to establish, through Ms. Shollenberger’s testimony, that Claimant sustained

a work-related concussion on March 30, 2017, which evolved into post-concussive

syndrome, and that Claimant continues to experience symptoms that require

treatment. Ms. Shollenberger’s credited testimony establishes those facts.

Reviewing Ms. Shollenberger’s testimony as a whole, that testimony was not “solely

based on inaccurate or false information,” American Contracting Enterprises, Inc.,

789 A.2d at 396, and was “sufficiently definite and unequivocal,” meaning not based

on possibilities, and, is, therefore, legally competent, Cerro Metal Products, 855

A.2d at 937; Coyne v. Workers’ Compensation Appeal Board (Villanova University),

942 A.2d 939, 954 (Pa. Cmwlth. 2008).

Spotts does not require a different result. In that case, the referee, as WCJs

were previously called, accepted as unequivocal the testimony of an employer’s

medical expert that the claimant did not suffer work-related Trichloroethylene (TCE)

poisoning and denied the claimant’s claim petition. While the Board affirmed, this

Court reversed on further appeal. We held that the referee erred in finding that

testimony unequivocal because the medical witness “had never seen a case of acute

poisoning from TCE,” “had no idea how to recognize a case of TCE poisoning, did

not know what [the c]laimant was suffering from, assumed that [the c]laimant was

simply faking, and argued that if [the claimant] was not faking [the claimant] was

suffering from a disorder which could be related to TCE poisoning.” Spotts, 541

A.2d at 448-49. This testimony, we concluded, made the witness’s opinions, taken

as a whole, “interesting but entirely speculative” and equivocal. Id. at 449.

12

Unlike the medical witness in Spotts, Ms. Shollenberger has the experience

and training to recognize a concussion and post-concussive syndrome, she

specifically opined that Claimant suffered from those conditions as a result of the

March 30, 2017 work incident, and those opinions were not speculative, but based

on Claimant’s credited history of the incident and symptomology. Further, contrary

to the situation here, the employer’s expert in Spotts was trying to disprove the

claimant’s alleged cause of his work-related injuries, TCE poisoning, which was

supported by the claimant’s experts’ testimony, and, thus, had to directly address

why TCE poisoning could not cause the work-related injuries. Here, Claimant met

her burden of proving her theory of the work-related injuries and that her witness

did not offer an opinion as to Employer’s causal theory went to the weight, not

competency, of Ms. Shollenberger’s testimony. Marriott Corp. v. Workers’ Comp.

Appeal Bd. (Knechtel), 837 A.2d 623, 631 n.10 (Pa. Cmwlth. 2003).

Finally, Employer appears to argue that Ms. Shollenberger is not qualified or

competent to testify as to any topic beyond concussions pursuant to the State Board

of Nursing’s regulations. The regulation at 49 Pa. Code § 21.251 defines a CRNP

as

[a] professional nurse licensed in this Commonwealth who is certified

by the [State] Board [of Nursing of the Commonwealth] in a specialty

and who, while functioning in the expanded role as a professional nurse,

performs acts of medical diagnosis or prescription of medical

therapeutic or corrective measures in collaboration with a physician

licensed to practice in this Commonwealth and in accordance with [The

Professional Nursing Law, Act of May 22, 1951, P.L. 317, as amended,

63 P.S. §§ 211-225.5 (Nursing Law)] and this subchapter. Nothing in

this subchapter is to be deemed to limit or prohibit a professional nurse

from engaging in those activities which constitute the practice of

professional nursing as defined in [S]ection 2 of the [Nursing Law].

13

49 Pa. Code § 21.251 (emphasis added). Citing this regulation, Employer maintains

that Ms. Shollenberger specializes in concussion and head trauma care, and,

therefore, is only qualified to testify as to those topics.9

Nonetheless, Employer’s argument on this basis is predicated on this Court

accepting Employer’s position that Ms. Shollenberger had to testify about

Claimant’s aplastic anemia and differentiate symptoms related to that condition from

those related to a concussion to be legally competent and unequivocal. As discussed

above, we discern no requirement that, to be competent, Ms. Shollenberger had to

address Employer’s alleged alternative cause of the injury and ongoing symptoms.

C. Reasoned Decision

Employer also argues that the WCJ failed to issue a reasoned decision based

on substantial competent evidence in the record. Because the WCJ relied on legally

incompetent evidence, Ms. Shollenberger’s testimony, Employer argues the WCJ

“arbitrarily and capriciously disregard[ed] the substantial competent evidence of

record,” i.e., Dr. Bruno’s testimony. (Employer’s Br. at 18.) According to

Employer, the WCJ failed to recognize Ms. Shollenberger’s inadequate qualification

under the State Board of Nursing’s regulation to testify about Claimant’s aplastic

anemia. As a result, Employer contends the WCJ failed to render a reasoned

decision under Section 422(a).

Claimant asserts the WCJ’s decision summarized the evidence presented and

made credibility determinations as to that evidence. Further, she argues, the WCJ

9

While we note that there are specialty certifications for CRNPs, there is also an

“unrestricted certification” for CRNPs. See 49 Pa. Code §§ 21.261(b), .271(c). It is not apparent

from the record which type of CRNP certificate Ms. Shollenberger holds.

14

explained the credibility determinations in a way that allows for appellate review of

the decision.

Section 422(a) of the Act states, in pertinent part, 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 presented as a whole which clearly and concisely states

and explains the rationale for the decisions so that all can determine

why 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. A reasoned decision allows for adequate appellate review, by either

the Board or the appellate courts, without further elucidation. Daniels v. Workers’

Comp. Appeal Bd. (Tristate Transp.), 828 A.2d 1043, 1052 (Pa. 2003). “A reasoned

decision is no more, and no less.” Id.

On our review, we agree with the Board that the WCJ’s decision is reasoned

because

the WCJ summarized the testimony of the witnesses and made

credibility determinations. [The WCJ] explained the reasons for those

credibility determinations, and we were able to determine how [the

WCJ’s] result was reached. The WCJ’s decision allowed for adequate

appellate review by the Board.

(Board Op. at 9-10.) The WCJ’s decision also allowed for adequate appellate review

by this Court. The WCJ “articulat[ed] . . . objective bas[e]s for the credibility

determination[s]” made, and those bases are supported by substantial evidence in the

15

record, as is required by the reasoned decision standard. Daniels, 828 A.2d at 1053.

Moreover, as we have rejected Employer’s arguments that Ms. Shollenberger’s

testimony was not legally competent, and the WCJ credited that testimony over Dr.

Bruno’s contrary testimony, there was no capricious disregard of Dr. Bruno’s

testimony. The “express consideration and rejection” of an expert’s testimony is,

“by definition [] not capricious disregard.” Williams v. Workers’ Comp. Appeal Bd.

(USX Corp.-Fairless Works), 862 A.2d 137, 145 (Pa. Cmwlth. 2004).

III. CONCLUSION

Because Ms. Shollenberger’s testimony was legally competent, we discern no

error in the Board affirming the WCJ’s reliance on that testimony to support the

grant of Claimant’s Review Petition and the denial of Employer’s Termination

Petition. Accordingly, we affirm.

__________________________________________

RENÉE COHN JUBELIRER, President Judge

16

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Olympus and Sompo America :

Insurance Company, :

Petitioners :

:

v. : No. 38 C.D. 2022

:

Dana Eiselen (Workers’ Compensation :

Appeal Board), :

Respondent :

ORDER

NOW, October 23, 2023, the Order of the Workers’ Compensation Appeal

Board, entered in the above-captioned matter, is AFFIRMED.

__________________________________________

RENÉE COHN JUBELIRER, President Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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