V. Sorrentino v. WCAB (Villanova University) ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Vincenza Sorrentino, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Villanova University), : No. 589 C.D. 2020
Respondent : Submitted: November 6, 2020
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: February 10, 2021
Vincenza Sorrentino (Claimant) petitions this Court for review of the
Workers’ Compensation (WC) Appeal Board’s (Board) May 27, 2020 order
affirming the Workers’ Compensation Judge’s (WCJ) decision: (1) granting
Villanova University’s (Employer) Petition to Terminate Compensation Benefits
(Termination Petition); (2) dismissing as moot Employer’s Petition to Suspend
Compensation Benefits (Suspension Petition); (3) denying and dismissing
Claimant’s Petition to Review Compensation Benefits (Review Petition) and
Claimant’s petition challenging Employer’s Notice of Suspension or Modification
Pursuant to Section 413(c) of the Workers’ Compensation Act (Act)2 (Challenge
Petition); (4) dismissing Claimant’s new Claim Petition (New Claim Petition); and
1
This case was assigned to the opinion writer before January 4, 2021, when Judge Leavitt
completed her term as President Judge.
2
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710. Section
413(c) of the Act was added by Section 2 of the Act of July 1, 1978, P.L. 692, 77 P.S. § 774.2.
(5) terminating Claimant’s WC benefits after October 29, 2018. Claimant presents
two issues for this Court’s review: (1) whether the Board erred when it held that the
WCJ issued a timely interlocutory order granting supersedeas in conjunction with
the Termination Petition and timely ruled on Claimant’s Challenge Petition; and (2)
whether the Board erred when it held that the WCJ properly credited Employer’s
doctor’s testimony over Claimant’s doctor’s testimony. After review, this Court
affirms.
Claimant sustained a work injury on May 17, 2018, in the nature of a
lower back fracture, and received WC benefits pursuant to a Notice of Compensation
Payable (NCP) therefor. On September 6, 2018, Employer issued an Amended NCP
recognizing a lower-back-area fracture. Claimant returned to work at modified duty
throughout September, October and November of 2018, and her WC benefits were
modified during that time to reflect her change in earnings. On December 3, 2018,
Claimant was released to full-time, full-duty work with no restrictions. Claimant
notified Employer that she wanted to use her accrued vacation time (which she
would have lost at year’s end) and would return to full-duty work after the New
Year. Employer agreed and, thus, Claimant did not resume work on December 4,
2018, but received paychecks from Employer through December 28, 2018.
On December 6, 2018, Employer issued a Notification of Suspension
Pursuant to Section 413(c) of the Act, suspending Claimant’s WC benefits as of
December 4, 2018. On December 13, 2018, Claimant filed the Challenge Petition.
On December 26, 2018, Employer filed the Termination Petition, alleging that, as of
October 29, 2018, Claimant had fully recovered from her work injury. On that same
date, Employer also filed the Suspension Petition, averring that, as of December 3,
2018, Employer offered Claimant a specific job and that work was generally
available to her. Therein, Employer also requested a supersedeas (Supersedeas
2
Request) pursuant to Section 413(a.2) of the Act, 77 P.S. § 774, alleging that
Claimant was released to full duty, and that her pre-injury job was available to her.
On December 28, 2018, Claimant filed her answers to the Termination Petition and
Suspension Petition, denying that she had fully recovered from her work-related
injury.
On January 9, 2019, the WCJ held a hearing on Claimant’s Challenge
Petition. At the hearing, Employer’s counsel noted that Employer had filed the
Suspension Petition, the Termination Petition and the Supersedeas Request.
Claimant and Employer’s Human Resources representative, Annette Lucidi,
testified. In support of its Supersedeas Request, Employer submitted Claimant’s
medical report from the Rothman Institute. At the hearing’s conclusion, Claimant’s
counsel requested, and the WCJ granted, 14 days for Claimant to respond to
Employer’s Supersedeas Request. Notwithstanding, on January 22, 2019, the WCJ
granted Employer’s Supersedeas Request as of January 18, 2019 (January 22, 2019
Order). The WCJ’s January 22, 2019 Order did not include a ruling on Claimant’s
Challenge Petition.
On March 11, 2019, Claimant filed the Review Petition, alleging an
incorrect injury description and average weekly wage. On March 13, 2019,
Employer filed its answer to the Review Petition denying Claimant’s averments. At
a March 20, 2019 hearing, Claimant reminded the WCJ that, at the January 9, 2019
hearing, the WCJ had granted Claimant 14 days to respond to Employer’s
Supersedeas Request, but issued an order granting the Supersedeas Request only 9
days later. Accordingly, at the March 20, 2019 hearing, Claimant asked the WCJ to
reconsider her January 22, 2019 Order granting supersedeas. The WCJ agreed to
reconsider her ruling but, on the same date, issued an interlocutory order again
3
granting Employer’s Supersedeas Request. The WCJ made no ruling on Claimant’s
Challenge Petition.
On May 13, 2019, Claimant filed the New Claim Petition, averring
multiple back conditions resulting from her May 17, 2018 fall at work. On June 26,
2019, the WCJ held a hearing at which Claimant again testified, and the WCJ
admitted into evidence the deposition testimony of Claimant’s physician, Stacy
Lendener, M.D. (Dr. Lendener), and Employer’s medical expert, John A. Handal,
M.D. (Dr. Handal). On August 6, 2019, the WCJ granted Employer’s Termination
Petition, concluding Employer established that Claimant fully recovered from her
work injury as of October 29, 2018. In reaching her decision, the WCJ found that
Dr. Handal was more credible and persuasive than Dr. Lendener. The WCJ denied
Claimant’s Challenge Petition because she granted the Termination Petition as of
October 29, 2018.
Specifically, the WCJ explained:
For an employee challenge to a Notification of Suspension
or Modification [an employer] must file a petition with a
request for a supersedeas for protection of its right to stop
the [c]laimant’s benefits after the [c]laimant’s stoppage of
work and a hearing must be scheduled within 21 days of
the [c]laimant’s filed challenge to decide the request for
the supersedeas. [Here, t]he requests for supersedeas and
the [Termination Petition] with a requested date of
termination of October 29, 2018[,] were granted and
[Claimant’s Challenge Petition] should be and is denied
and dismissed.
Reproduced Record (R.R.) at 257a. The WCJ dismissed the Suspension Petition as
moot, denied the Review Petition, concluding that Claimant did not meet her burden
of proof, and denied the New Claim Petition.
On August 23, 2019, Claimant filed a notice of appeal to the Board
(Notice of Appeal) alleging that the WCJ failed to timely rule upon Claimant’s
4
Challenge Petition, granted Employer’s Supersedeas Petition before Claimant’s
response time had expired, and failed to consider substantial evidence.3 Claimant
did not aver therein that the WCJ failed to timely conduct a hearing on the Challenge
Petition.
On May 27, 2020, the Board affirmed the WCJ’s decision. The Board
concluded that, as fact finder, the WCJ was free to weigh witness testimony and
determine credibility. Further, the Board explained:
3
In her Notice of Appeal, Claimant averred:
Claimant filed a timely [Challenge Petition] pursuant [to Section]
413(c)[] [of the Act,] and she testified at the first hearing that she
was no longer working due to her injury. The [WCJ,] instead of
ruling on the [] Challenge [Petition] at the first hearing after she
heard evidence that [] Claimant was not working, instead ordered
that Claimant’s attorney had fourteen (14) days to respond to
Employer’s Superseades [sic] request[] pursuant to the Termination
Petition. Despite [Claimant’s counsel’s] repeated requests for the
[WCJ] to rule upon [the Challenge Petition], she refused to do so.
Further, the [WCJ] then ruled on Superseades [sic] within seven (7)
days failing to give [Claimant’s counsel] the allotted time to respond
to the Superseades [sic] request and granted Superseades [sic]
without allowing [Claimant’s counsel] to enter any evidence on it
and continued to not rule on the [] Challenge [Petition].
The [WCJ] further ruled and granted the Termination Petition
without considering objection [sic] findings such as compression
fracture to [] Claimant’s lower back, bulging disc and a narrowing
parameter. The [WCJ] also ignored Claimant’s constant complaints
of pain when deciding the [Termination P]etition.
R.R. at 260a. Claimant further alleged that the WCJ erred as a matter of law, when
[she] refused to rule on [Claimant’s Challenge Petition] at the first
hearing. Even if the [WCJ] was going to untimely rule on
[Employer’s] Supersedeas [request] in seven (7) days, [] Claimant
should be afforded [WC] benefits for the time prior to the [WCJ’s]
ruling on Supersedeas which was[,] again, untimely.
R.R. at 260a-261a.
5
With respect to the Challenge Petition, Claimant argues
that the WCJ did not hold a timely hearing and[,] rather
than rule on it, she issued an untimely Interlocutory Order
granting supersedeas in conjunction with the Termination
Petition. First, although Claimant argued for
reinstatement of total [WC] benefits as per the NCP,
Claimant agreed that[,] at that time in dispute[,] she
elected to take her paid vacation time because she was
going to lose it, and that she received her pay until the end
of the year. Nothing in the Act requires payment of total
disability benefits while the Claimant is receiving wages.
Further, [U.S. Airways v. Workers’ Compensation Appeal
Board (Rumbaugh), 854 A.2d 411 (Pa. 2004),] holds that
where a[n employer] has suspended benefits pursuant to a
Notification of Suspension and the claimant subsequently
stops working and challenges it, [the employer] must file
a petition for suspension with a request for supersedeas to
protect its right to continue to suspend benefits. Here, the
WCJ heard the merits of the Challenge Petition and
[Employer’s] [S]upersedeas [R]equest at the same
hearing. She granted supersedeas via Interlocutory Order
of January 22, 2019, effectively denying Claimant’s
[C]hallenge [Petition]. We see nothing warranting
reversal in these circumstances.
R.R. at 271a. Claimant appealed to this Court.4
This Court first addresses Employer’s contention that Claimant waived
her argument regarding the WCJ’s failure to hold a hearing within 21 days of
Claimant’s filing of her Challenge Petition. According to Employer, Claimant failed
to raise this issue
before the WCJ, orally or in writing, before, during, or
after any one of three hearings, held over the course of
over five months (and not until her brief to the Board),
[Claimant] never filed a penalty petition for any indemnity
[benefits] due up to the time of the supersedeas order[ and
4
“On review[,] this Court must determine whether constitutional rights were violated,
errors of law were committed, or necessary findings of fact were supported by substantial
competent evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d
598, 601 n.6 (Pa. Cmwlth. 2014).
6
Claimant’s] counsel asked for reconsideration of
supersedeas and never raised the timeliness of the hearing
as an issue.
Employer Br. at 6. Employer emphasizes that Claimant did not raise the timeliness
issue in its Notice of Appeal to the Board. Thus, Employer contends Claimant
waived the issue.
Claimant retorts:
[A] review of the [a]ppeal documents, including the
[d]ecision of the Board, indicates that [Claimant] raised
the issue of the timeliness of the Challenge Petition, as the
Board explicitly ruled upon that issue in its [d]ecision.
[Claimant’s] Board [a]ppeal raises the issue of the
Challenge Petition, and while it does not specifically
include the issue of the timeliness of that hearing, the
timeliness issue is tangentially related to the issues raised
within [Claimant’s Notice of Appeal]. Further, as the
issue of timelines[s] was explicitly ruled upon by the
Board, it can be interpreted that the issue was, in fact,
raised before the government unit.
Though, perhaps, [Claimant’s] initial [Notice of A]ppeal
to the Board was not as artfully crafted as necessary, the
[Claimant] did raise the issue of timelines[s] to the Board,
and the Board rendered a decision on that particular issue.
Further, though [Employer] claims that [Claimant] did not
raise the issue of the timelines[s] of the Challenge Petition
[h]earing until her brief to the Board, [] within the WCJ’s
[d]ecision, the issue of the timeliness of hearings was
addressed, with the WCJ[’s] holding that a ‘hearing must
be scheduled within 21 days of [] Claimant’s filed
challenge.’ [R.R. at 257a]. It is clear the issue of
timeliness of the Challenge Petition was at issue, and that
the WCJ was aware of the issue as she rendered a decision
thereupon. The WCJ’s decision, and subsequent decision
of the Board serve to show that the issue of the timeliness
of the Challenge Petition had been raised on several
occasions, and addressed by each respective government
unit.
7
Claimant Reply Br. at 2-3 (citations omitted). This Court disagrees.
It is clear in the instant matter that Claimant did not raise the timeliness
of the Challenge Petition hearing in her Notice of Appeal to the Board. The Board
nevertheless addressed the issue in its decision.5 As Employer notes:
[Claimant] never objected to the timeliness of the hearing
being held on January 9, 2019, [Claimant] never raised this
5
This Court addressed similar circumstances in Berninger v. Workers’ Compensation
Appeal Board (East Hempfield Township), 761 A.2d 218 (Pa. Cmwlth. 2000). Therein, this Court
explained:
[The e]mployer asserts that [the claimant’s constitutional issue] was
waived because [the c]laimant did not raise it before the Board. It
is true that [the c]laimant did not raise the issue in his notice of
appeal to the Board from the WCJ’s findings of fact and
conclusions of law, but [the c]laimant asserts that he raised the
issue in his brief to the Board. [The c]laimant’s brief to the Board
is not a part of the record of this case. The Board then stated in its
opinion that ‘Furthermore, [the c]laimant argues that, as applied, the
dual burden standard impinges upon his equal protection under the
law, as guaranteed by the United States and Pennsylvania
Constitutions. However, due process constitutional arguments . . .
are beyond the purview of this Board.’ Board Opinion, October 7,
1999, at 3. This Court has noted our Pennsylvania Superior Court’s
statement that ‘it is beyond cavil that an appellate court is limited to
considering only those facts which have been duly certified in the
record on appeal. For purposes of appellate review, what is not of
record does not exist. It is the appellant’s responsibility to provide
a complete and comprehensive record to the reviewing court.’
Steglik v. Workers’ Comp[.] Appeal B[d.] (Delta Gulf Corp.), 755
A.2d 69, 74 n.3 (Pa. Cmwlth. 2000)[] [(]quoting Spink v. Spink, . . .
619 A.2d 277, 280 n.1 ([Pa. Super.] 1992)[)]. Nevertheless,
because the Board acknowledged the constitutional issue in its
opinion, we believe that [the c]laimant adequately raised and
preserved the issue, and we will address it.
Berninger, 761 A.2d at 222 n.5 (emphasis added). Here, unlike in Berninger, where the claimant’s
arguments were “beyond the purview of th[e] Board[,]” Claimant could have raised the issue
before the WCJ and in the Notice of Appeal to the Board, but did not do so. Id. Further, it is
unclear whether Claimant raised it in her brief to the Board since, as in Berninger, Claimant’s brief
to the Board is not a part of the record in this case.
8
issue before the WCJ, orally or in writing, before, during,
or after any one of three hearings, held over the course of
over five months (and not until her brief to the Board),
[Claimant] never filed a penalty petition for any indemnity
[benefits] due up to the time of the supersedeas order[ and
Claimant] asked for reconsideration of supersedeas and
never raised the timeliness of the hearing as an issue.
Employer Br. at 11.
In Wing v. Unemployment Compensation Board of
Review, . . . 436 A.2d 179 ([Pa.] 1981), [the Pennsylvania
Supreme Court] held:
[T]he administrative law tribunal must be
given the opportunity to correct its errors
as early as possible; diligent preparation
and effective advocacy before the tribunal
must be encouraged by requiring the
parties to develop complete records and
advance all legal theories; and the finality of
the lower tribunals’ determinations must not
be eroded by treating each determination as
part of a sequence of piecemeal
adjudications.
Id. at . . . 181 (applied to administrative law proceedings
the holdings of Dilliplaine v. Lehigh Valley Trust Co., . . .
322 A.2d 114 ([Pa.] 1974), and Commonwealth v. Clair, .
. . 326 A.2d 272 ([Pa.] 1974), which announced the same
waiver rule in civil and criminal cases, respectively). In
Dilliplaine, [the Supreme Court] [] stated:
Appellate court consideration of issues not
raised in the trial court results in the trial
becoming merely a dress rehearsal. This
process removes the professional necessity
for trial counsel to be prepared to litigate the
case fully at trial and to create a record
adequate for appellate review. The ill[-
]prepared advocate’s hope is that an appellate
court will come to his aid after the fact and
afford him relief despite his failure at trial to
object to an alleged error. The diligent and
prepared trial lawyer - and his client - are
9
penalized when an entire case is retried
because an appellate court reverses on the
basis of an error opposing counsel failed to
call to the trial court’s attention.
Dilliplaine, . . . 322 A.2d at 116.
Rox Coal Co. v. Workers’ Comp. Appeal Bd. (Snizaski), 807 A.2d 906, 912-13 (Pa.
2002) (emphasis added).
Claimant did not at any time complain to the WCJ that the WCJ failed
to comply with the 21-day hearing requirement so that the WCJ could “correct [her]
errors as early as possible[.]” Id. at 912 (quoting Wing, 436 A.2d at 181). Insisting
that Claimant did not waive the timeliness issue, Claimant declares that “within the
WCJ’s Decision, the issue of the timeliness of hearings was addressed, with the WCJ
holding that a ‘hearing must be scheduled within 21 days of []Claimant’s filed
challenge.’ [R.R. at ]257a[].” Claimant Reply Br. at 3. Accordingly, Claimant
concludes, “[i]t is clear the issue of timeliness of the Challenge Petition was at issue,
and that the WCJ was aware of the issue as she rendered a decision thereupon.” Id.
However, the passage to which Claimant refers is merely one in a group of
paragraphs discussing the legal standards and requirements for the various Petitions
at issue.6 It is not indicative that Claimant raised the issue before the WCJ. Nor did
Claimant raise the issue in her Notice of Appeal to the Board. Thus, Claimant
waived that issue.
Claimant next contends that the WCJ committed reversible error by
failing to timely rule on Claimant’s Challenge Petition and Supersedeas Request.
Section 413(c)(1) of the Act states:
If the employe contests the averments of the insurer’s
affidavit, a special supersedeas hearing before a [WCJ]
may be requested by the employe indicating by a checkoff
6
See R.R. at 257a.
10
on the notification form that the suspension of benefits is
being challenged and filing the notification of challenge
with the [D]epartment [of Labor and Industry] within [20]
days of receipt of the notification of suspension from the
insurer. The special supersedeas hearing shall be held
within [21] days of the employe’s filing of the notification
of challenge.
77 P.S. § 774.2(1).
Further, Section 131.50a of the Board’s Regulations provides, in
pertinent part:
(a) This section governs the disposition of an employee’s
request for a special supersedeas hearing made in
connection with a challenge to the suspension or
modification of [WC] benefits under [S]ections 413(c) and
413(d) of the [A]ct[7] (77 P.S. §[§] 774.2[,] 774.3).
(b) A special supersedeas hearing will be held within 21
days of the employee’s filing of the notice of challenge.
(c) During the course of a challenge proceeding, the issues
are limited to determining whether the claimant has
stopped working or is earning the wages stated in the
Notice of Suspension or Modification under [S]ections
413(c) or 413(d) of the [A]ct and the challenge shall be
decided only on those issues.
(d) If the employer has filed a separate petition requesting
supersedeas, the judge may receive evidence and issue a
separate decision on the request for supersedeas if the
judge determines the claimant will not be prejudiced by
the introduction of evidence on the supersedeas request at
the time of the challenge proceeding.
(e) The judge to whom the notice of challenge has been
assigned will issue a written order on the challenge
within 14 days of the hearing.
(f) If the judge fails to hold a hearing within 21 days or
fails to issue a written order approving the suspension
or modification of benefits within 14 days of the
7
Added by Section 16 the Act of June 24, 1996, P.L. 350.
11
hearing, the insurer shall reinstate the employee’s
[WC] benefits at the weekly rate the employee received
prior to the insurer’s suspension or modification of
benefits under [S]ections 413(c) or 413(d) of the [A]ct.
34 Pa. Code § 131.50a (emphasis added).
With respect to Employer’s Supersedeas Request, Section 131.49 of the
Board’s Regulations specifies, in relevant part:
(a) The filing of a petition alleging full recovery,
accompanied by a physician’s affidavit to that effect,
which was prepared in connection with an examination of
the employee no more than 21 days from the filing of the
petition, shall act as an automatic request for supersedeas.
(b) A special supersedeas hearing will be held within 21
days of the assignment of the petition filed under this
section.
(c) The judge will approve the request for supersedeas if
prima facie evidence of a change in the medical status or
of any other fact which would serve to modify or terminate
the payment of compensation is submitted at the hearing,
unless the employee establishes by a preponderance of the
evidence a likelihood of prevailing on the merits of the
employee’s defense. . . .
....
(d) If the judge to whom the special supersedeas request
has been assigned fails to hold a hearing within 21 days of
assignment of the request to the judge or fails to issue a
written order within 7 days of the hearing of the
supersedeas request, the automatic request for
supersedeas will be deemed denied. The automatic
request for supersedeas will remain denied until the
judge issues a written order granting the supersedeas,
in whole or in part.
34 Pa. Code § 131.49 (emphasis added).
At the January 9, 2019 hearing, the WCJ considered Claimant’s
Challenge Petition and Employer’s Suspension Petition, Termination Petition, and
12
Supersedeas Request. The WCJ did not issue a written order on the Challenge
Petition within 14 days of the hearing as required by Section 131.50a(e) of the
Board’s Regulations. Moreover, the WCJ did not issue a written order on
Employer’s Supersedeas Request within 7 days of the hearing as required by Section
131.49 of the Board’s Regulations. However, at the hearing, Claimant requested
14 days to respond to Employer’s Supersedeas Request, which the WCJ granted.
Thus, although Section 131.49(d) of the Board’s Regulations required the WCJ to
issue a written order on Employer’s Supersedeas Request within 7 days, Claimant
waived that requirement when she requested 14 days to respond thereto. Further, in
accordance with Section 131.49(c) of the Board’s Regulations, when the WCJ
granted Employer’s Supersedeas Request on January 22, 2019, the WCJ did so
because Employer presented “prima facie evidence of a change in the medical status
. . . which would serve to modify or terminate the payment of compensation[.]” 34
Pa. Code § 131.49(c). Thus, in granting Employer’s Supersedeas Request, the WCJ,
by implication, effectively denied Claimant’s Challenge Petition within the time
required by Section 131.50a(e) of the Board’s Regulations.8 Ultimately, on August
6, 2019, the WCJ granted the Termination Petition, concluding that Claimant had
fully recovered from her work injury as of October 29, 2018, nearly one and one-
half months before Claimant filed her Challenge Petition. Accordingly, this
Court discerns no error.
Finally, Claimant asserts that the Board erred when it held that the WCJ
properly credited Dr. Handal’s testimony over Dr. Lendener’s testimony.
Specifically, Claimant argues:
8
At the March 20, 2019 hearing, Claimant requested the WCJ to reconsider her order
granting the Supersedeas Request, given that the WCJ issued her order before Claimant’s 14-day
response time had expired. The WCJ granted the request but, again, granted Employer’s
Supersedeas Request.
13
Review of Dr. Handal’s testimony, as a whole, amounts to
a variety of speculative opinions, all of which were
rendered on October 29, 2018. Here, Dr. Handal failed to
make any objective findings, and admitted that he was
unaware as to they [sic] type of medical treatment
[Claimant] was undergoing, and if she was undergoing
that medical treatment at the time of his examination.
Moreover, Dr. Handal was unaware of the physical duties
required of Claimant in her pre-injury position, save for a
weight lifting requirement, which evidences that Dr.
Handal clearly rendered his opinion in a vacuum, and that
opinion was uncertain, equivocal and open to
interpretation.
Claimant Br. at 23-24 (citations omitted). Claimant concludes:
A review of Dr. Lendener’s testimony as a whole clearly
indicates that [Claimant] was severely injured and unable
to return to work. Despite Dr. Lendener functioning as
[Claimant’s] treating physic[i]an, the WCJ and [the
Board] erroneously assigned greater weight and credibility
to the testimony of Dr. Handal, which [Claimant] submits
amounts to an equivocal opinion, rendered with very
limited pertinent information, and in the course of
litigation. As proper weight was not given to the
testimony of Dr. Lendener, the WCJ and [the Board]
committed reversible error.
Claimant Br. at 24.
However,
[t]he law is well established that ‘[t]he WCJ is the ultimate
fact[ ]finder and has exclusive province over questions of
credibility and evidentiary weight.’ Univ. of Pa. v.
Workers’ Comp. Appeal Bd. (Hicks), 16 A.3d 1225, 1229
n.8 (Pa. Cmwlth. 2011). ‘The WCJ, therefore, is free to
accept or reject, in whole or in part, the testimony of any
witness, including medical witnesses.’ Griffiths v.
Workers’ Comp. Appeal Bd. (Red Lobster), 760 A.2d 72,
76 (Pa. Cmwlth. 2000).
Kimberly Clark Corp. v. Workers’ Comp. Appeal Bd. (Bromley), 161 A.3d 446, 461
(Pa. Cmwlth. 2017). Further,
14
[n]either the Board nor the Court may reweigh the
evidence or the WCJ’s credibility determinations. Sell v.
Workers’ Comp. Appeal Bd. (LNP Eng’g), . . . 771 A.2d
1246 ([Pa.] 2001). Specifically, ‘Section 422(a) [of the
Act, 77 P.S. § 834,] does not permit a party to challenge
or second-guess the WCJ’s reasons for credibility
determinations. [Thus, u]nless made arbitrarily or
capriciously, a WCJ’s credibility determinations will be
upheld on appeal.’ Pa. Uninsured Emp[s.] Guar. Fund v.
Workers’ Comp. Appeal Bd. (Lyle), 91 A.3d 297, 303 (Pa.
Cmwlth. 2014) (quoting Dorsey v. Workers’ Comp.
Appeal Bd. (Crossing Constr. Co.), 893 A.2d 191, 195 (Pa.
Cmwlth. 2006)).
Kimberly Clark Corp., 161 A.3d at 462 (footnote omitted).
“To be competent evidence, medical expert testimony must be
unequivocal.” BJ’s Wholesale Club v. Workers’ Comp. Appeal Bd. (Pearson), 43
A.3d 559, 564 (Pa. Cmwlth. 2012).
The question of whether expert medical testimony is
unequivocal, and, thus, competent evidence to support
factual determinations is a question of law subject to our
review. In such cases, we review the testimony as a whole
and may not base our analysis on a few words taken out of
context. ‘Taking a medical expert’s testimony as a whole,
it will be found to be equivocal if it is based only upon
possibilities, is vague, and leaves doubt.’ Kurtz v.
Workers’ Comp. Appeal Bd. (Waynesburg Coll[.]), 794
A.2d 443, 449 (Pa. Cmwlth. 2002).
Amandeo v. Workers’ Comp. Appeal Bd. (Conagra Foods), 37 A.3d 72, 80 (Pa.
Cmwlth. 2012) (citations omitted). “Medical evidence is unequivocal as long as the
medical expert, after providing a foundation, testifies in his professional opinion he
believes or thinks the facts exist.” Watson v. Workers’ Comp. Appeal Bd. (Special
People in Ne.), 949 A.2d 949, 953 (Pa. Cmwlth. 2008).
The record evidence reflects that Dr. Handal unequivocally testified
within a reasonable degree of medical certainty that Claimant had fully recovered
15
from her work injury as of when he examined her on October 29, 2018. See R.R. at
195a. Dr. Handal described that, based upon his examination and Claimant’s test
results, there was no indication that Claimant’s work-related injury and
accompanying disability remained. That Dr. Lendener contradicted Dr. Handal does
not invalidate Dr. Handal’s testimony. Rather, the WCJ was free to evaluate
credibility, weigh the evidence and afford it the weight that she deemed it deserved.
Under the circumstances, this Court may not question the WCJ’s credibility
determinations or reweigh the evidence. See Kimberly Clark Corp.
For all of the above reasons, the Board’s decision is affirmed.
_________________________________
ANNE E. COVEY, Judge
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Vincenza Sorrentino, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Villanova University), : No. 589 C.D. 2020
Respondent :
ORDER
AND NOW, this 10th day of February, 2021, the Workers’
Compensation Appeal Board’s May 27, 2020 order is affirmed.
_________________________________
ANNE E. COVEY, Judge