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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Melanie Price, Petitioner v. Workers' Compensation Appeal Board (Villanova University), Respondent BEFORE: : : : : : : : :

No. 781 C.D. 2008 Submitted: October 10, 2008

HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JIM FLAHERTY, Senior Judge

OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEAVITT FILED: December 19, 2008

Melanie Price (Claimant) petitions, pro se, for review of an adjudication of the Workers' Compensation Appeal Board (Board) terminating her benefits. In doing so, the Board affirmed the decision of the Workers'

Compensation Judge that Claimant had fully recovered from her work-related injury. In this case we consider whether the testimony of the employer's medical expert constituted sufficient, competent evidence to satisfy the burden of proof for a termination of benefits. After review, we affirm. Claimant was last employed as a security guard by Villanova University (Employer). On August 21, 1991, Claimant slipped and fell in the course and scope of her employment and sustained a strain/sprain of her

lumbosacral and thoracic spine.1 At the time of her injury, Claimant was 19 years of age and six months pregnant. Because of her pregnancy, Claimant did not undergo any x-rays or aggressive treatment besides occasional physician visits. Claimant was released to work light duty; however, no light-duty work was available and Claimant did not return to work. She began receiving disability benefits. In 1993, Employer filed a petition to terminate, suspend or modify Claimant's benefits. The parties entered into a commutation agreement which was approved by WCJ Fred J. Troilo on March 16, 1995. The stipulated facts agreed to by the parties and approved by WCJ Troilo stated that Claimant had "sustained injuries to her lumbosacral and thoracic spine while in the course and scope of employment with [Employer]." WCJ Troilo Decision, March 16, 1995, Stipulation of Fact No. 2. Employer agreed to continue to pay all of Claimant's medical expenses related to her work injury. On June 9, 2006, Employer filed a termination/suspension petition alleging that Claimant was fully recovered from her work injury. The matter was assigned to WCJ Sarah C. Makin (WCJ). Employer presented testimony from Bong S. Lee, M.D., a boardcertified orthopedic surgeon, who examined Claimant on January 4, 2005, and April 13, 2006. During the first examination, Claimant complained of steady pain in her lower back with occasional flare-ups. Dr. Lee took Claimant's history, which revealed severe scoliosis of her thoracolumbar spine, a condition which had

According to the Board, Employer recognized a strain/sprain of the lumbosacral and thoracic spine in a Notice of Compensation Payable (NCP). There is, however, no copy of the NCP in the certified record.

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been present since adolescence. Dr. Lee reviewed two MRI films from 2003 and 2004 which revealed scoliosis and what he characterized as "degeneration of ... the entire space of the lumbar spine from L1 through L5 with a lot of bone spur formations and the narrowing of the disc space and also arthritis of the facet joints." Notes of Testimony (N.T.), September 27, 2006, at 13 (Lee Depo. __). Based on Claimant's medical records, Dr. Lee concluded that she had sustained a sprain of the lumbosacral spine when she fell at work in 1991. At the time of his January 4, 2005, examination, Dr. Lee found that Claimant suffered from severe scoliosis of the spine. At Claimant's second examination on April 13, 2006, Dr. Lee took an updated history and reviewed an MRI film from 2005. She presented with similar complaints of pain in her lower back and buttocks. Dr. Lee testified that

Claimant's only objectively verifiable condition was severe scoliosis of the thoracolumbar spine, and her physical examination revealed the same curvature of the spine as in 2005. The MRI film showed that Claimant's degenerated discs and arthritis of the lumbar spine had not changed. Dr. Lee testified that a sprain of the lower back like Claimant suffered in 1991 is not a permanent condition and that even with the presence of severe scoliosis she would have recovered within 6 weeks. Dr. Lee opined that Claimant had fully recovered from her 1991 work injury and did not require any further treatment for that injury. Lee Depo. 21. Dr. Lee further opined that Claimant's current disability and work limitations are attributable solely to her scoliosis and are not related to the 1991 injury. Lee Depo. 33, 46. Claimant presented the testimony of Randall N. Smith, M.D., a boardcertified orthopedic surgeon. Dr. Smith began treating Claimant shortly after the

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work injury in 1991. Dr. Smith diagnosed Claimant with "a lumbar sprain and strain, a lumbosacral contusion, which aggravated some preexisting scoliosis, causing some bulging protruded disc[s] and sciatica." N.T., January 9, 2007, at 7 (Smith Depo. __). Since 1991, Dr. Smith has treated Claimant with braces,

medications and physical therapy. At her then most recent examination in June 2006, Claimant complained of pain in her mid and lower back radiating into both legs. Dr. Smith reviewed Claimant's 2005 MRI, which showed protruded discs at L4-L5 and L5-S1 and scoliosis. Dr. Smith opined that the 1991 work injury caused Claimant's scoliosis to become symptomatic, and resulted in her disc problems and chronic pain condition, including her sciatica. Dr. Smith testified that Claimant had reached maximum medical improvement. He conceded on cross-examination that the normal recovery time from a lumbar sprain/strain is 12 weeks. Dr. Smith also acknowledged that scoliosis alone will cause discs to degenerate prematurely and that Claimant's scoliosis would in all likelihood have worsened during the 15 years she was his patient. The WCJ found Dr. Lee's testimony to be credible and persuasive because he explained that there was no objective evidence that Claimant still suffered from the 1991 work injury and that Claimant's present disability was attributable to her pre-existing scoliosis. The WCJ rejected Dr. Smith's opinion because "he failed to point to objective indicators that Claimant is suffering from the work injury." WCJ Decision, May 4, 2007, at 4, Finding of Fact 11. The WCJ concluded that Claimant had fully recovered from her 1991 work injury as of April 13, 2006, the date of Dr. Lee's second examination. Accordingly, the WCJ Claimant

granted Employer's termination petition effective as of that date.

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appealed. Finding no error by the WCJ, the Board affirmed. Claimant now petitions for this Court's review. Before this Court,2 Claimant identifies several issues which we summarize as follows. Claimant argues that the WCJ erred in granting Employer's termination petition because Employer did not meet its burden of proving that Claimant is fully recovered from her 1991 work-related injury. In asserting this claim, Claimant contends that the WCJ's decision was not reasoned and rests upon credibility determinations not supported by the record. Claimant also argues that the WCJ erred by allowing Employer to litigate the description of the work injury accepted in the parties' 1995 commutation agreement. It is well established that an employer seeking to terminate workers' compensation benefits bears the burden of proving by substantial evidence either that the employee's disability has ceased, or that any current disability arises from a cause unrelated to the employee's work injury. Parker v. Workers'

Compensation Appeal Board (Dock Terrace Nursing Home), 729 A.2d 102, 104 (Pa. Cmwlth. 1999). When the employer offers medical testimony to meet its burden of proof, the medical expert's opinion must be rendered unequivocally and to a reasonable degree of medical certainty in order to constitute substantial evidence of record. Jones v. Workers' Compensation Appeal Board (J.C. Penney Co.), 747 A.2d 430, 432 (Pa. Cmwlth. 2000). Claimant argues, first, that Employer failed to offer substantial evidence of full recovery because Dr. Lee's testimony was equivocal. In support,
Our scope of review in appeals from the Board is limited to determining whether constitutional rights were violated, errors of law were committed, or necessary findings of fact were supported by substantial evidence. Parker v. Workers' Compensation Appeal Board (Dock Terrace Nursing Home), 729 A.2d 102, 104 n.2 (Pa. Cmwlth. 1999).
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Claimant claims that contradictions appear in Dr. Lee's testimony. For example, in his deposition, Dr. Lee opined that Claimant's recovery time from a lower back sprain would have been approximately 6 weeks. However, in his earlier IME report dated January 4, 2005, Dr. Lee stated that Claimant was bedridden or wheelchair bound for the duration of her pregnancy following the work injury, or approximately 12 weeks. Lee Depo., Exh. 2, at 1. Citing this statement, Claimant claims that Dr. Lee's report contradicts his deposition testimony on recovery time. Claimant also argues that Dr. Lee provided no evidence that her scoliosis was symptomatic prior to the work injury, nor did he provide a recovery time period for a lower back sprain specific to Claimant. For these reasons, Claimant contends that the WCJ lacked sufficient evidence to find Dr. Lee credible. We disagree that Claimant's analysis leads to the conclusion that Dr. Lee's testimony was equivocal. Whether Claimant's actual or estimated recovery time from her lower back sprain was 6 or 12 weeks is beside the point, and any discrepancy in this regard does not render Dr. Lee's testimony equivocal. Having carefully reviewed the entire transcript of Dr. Lee's deposition, we conclude that the real import of his testimony was his unequivocal opinion that Claimant was fully recovered from her work injury as of April 13, 2006, nearly 15 years after the work incident. The WCJ credited this testimony and explained her reasons for

doing so. It is well established that credibility determinations are within the sole province of the WCJ and the WCJ is free to accept or reject the medical testimony of any witness, in whole or in part. Broughton v. Workers' Compensation Appeal Board (Disposal Corp. of America), 709 A.2d 443, 446 (Pa. Cmwlth. 1998).

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Claimant's attempts to challenge the WCJ's credibility determination on appeal are unavailing and beyond the scope of this Court's review.3 Claimant argues, next, that the WCJ failed to issue a reasoned decision in accordance with Section 422(a) of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S.

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