IN THE COMMONWEALTH COURT OF PENNSYLVANIA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA John Leca, : Petitioner : : v. : : Workers' Compensation : Appeal Board : (School District of Philadelphia), : No. 404 C.D. 2013 Respondent : Submitted: June 28, 2013 BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McGINLEY FILED: August 29, 2013 John Leca (Claimant) petitions for review of a Workers Compensation Appeal Board (Board) Order, dated February 26, 2013, which affirmed the Workers Compensation Judge s (WCJ) grant of the Termination Petition filed by the School District of Philadelphia (Employer). On April 14, 2004, while Claimant was employed by Employer as a school police officer he was assaulted by a student and suffered a work-related injury. Employer issued a Notice of Compensation Payable (NCP) describing the injury as lower back sprain/strain and began making compensation payments to Claimant at the rate of $331.03 per week. On October 15, 2009, Employer filed a Petition to Terminate Claimant s Compensation Benefits as of August 31, 2009, on the basis that he fully

recovered from his work related injury. Claimant filed an answer and denied all material allegations. Employer presented the deposition testimony of Dr. Richard Schmidt, M.D. (Dr. Schmidt), a board-certified orthopedic surgeon. On August, 31, 2009, Dr. Schmidt performed an evaluation during which he took Claimant s medical history and reviewed his medical records. Deposition of Dr. Richard Schmidt, M.D., February 1, 2010, (Dr. Schmidt Deposition) at 7-8; Reproduced Record (R.R.) at 46a-47a. Claimant informed Dr. Schmidt that he was injured at work on April 14, 2004, during his employment as a police officer. Dr. Schmidt Deposition at 8; R.R. at 47a. Claimant was involved in two automobile accidents and experienced neck pain and some worsening of his lower back pain after the workrelated injury. Dr. Schmidt Deposition at 8 and 17-18; R.R. at 47a and 56a-57a. An MRI performed in 2008 showed significant chronic changes at L4-5, with osteophyte formation and facet arthritis. Dr. Schmidt opined that these findings were not related to the April 2004 work injury. Dr. Schmidt Deposition at 12; R.R. at 51a. Dr. Schmidt s physical examination revealed that range of motion was normal, there was no curvature or spasm and testing was negative. Dr. Schmidt Deposition at 10-11. Dr. Schmidt noted that the examination was consistent with symptom magnification. Dr. Schmidt Deposition at 12; R.R. at 51a. He opined that Claimant fully recovered from his work injury. Dr. Schmidt Deposition at 13; R.R. at 52a. Claimant testified that he visited a chiropractor about six days a week and Dr. Randall N. Smith, M.D. (Dr. Smith) about once every two or three months 2

to treat his back pain which he believed was a result of the April 14, 2004, workrelated injury. Deposition of Claimant, January 12, 2010 (Claimant s Deposition) at 9; R.R. at 138a. Claimant testified that he was involved in two automobile accidents - one in November of 2008 and another accident on March 3, 2009, which resulted in an increase in his back pain. Claimant s Deposition at 12 and 14; R.R. at 141a and 143a. Claimant did not believe he was physically capable to do police work, security work. Claimant s Deposition at 16; R.R. at 145a. Claimant presented the deposition testimony of Dr. Smith, a boardcertified orthopedic surgeon. Dr. Smith first examined Claimant on December, 2004, and Claimant provided him with a medical history which included the details of his work-related injury. Claimant denied any significant problems with his back prior to the work-related injury. Deposition of Dr. Randall N. Smith, M.D., October 12, 2010, (Dr. Smith Deposition) at 14; R.R. at 92a. Dr. Smith provided Claimant with physical therapy, medications, injections and diagnostic tests during the course of his treatment of approximately seven years. Dr. Smith Deposition at 16; R.R. at 94a. Dr Smith opined that the automobile accidents temporarily made Claimant s back pain a little more intense but then it went back to its normal level of pain after a period of time. Dr. Smith Deposition at 27; R.R. at 105a. Dr. Smith did not find signs of symptom magnification. Dr. Smith Deposition at 28; R.R at 106a. Dr. Smith was of the opinion that Claimant was not fully recovered from his back injury. Dr. Smith Deposition at 32; R.R. at 110a. The WCJ granted Employer s Termination Petition and terminated Claimant s benefits effective August 31, 2009, and explained: 3

6. This Judge finds the testimony of Dr. Richard Schmidt that, as of August 31, 2009, Claimant was fully recovered from his April 14, 2004 work injury to be credible and persuasive, and is accepted as fact in this case. To the extent that the testimonies of Claimant and Dr. Smith may differ form [sic] the testimony of Dr. Schmidt, their testimonies are rejected as neither credible or [sic] persuasive. In this regard, this Judge notes that the opinion of Dr. Schmidt was clear and unequivocal, and supported by the results of his examination and his review of Claimant s medical records. In addition, Dr. Smith admitted that an MRI study performed four months after the April 14, 2004 work injury found preexisting degenerative disc disease and disc dessication [sic] at level L4-5. 7. This Judge finds that Claimant s testimony that he continues to be totally disabled as a result of his work injury is not supported by the physical examination performed by Dr. Schmidt and the diagnostic tests, specifically the MRI studies. Further, Claimant admitted that the two motor vehicle accidents after the work injury increased his back pain. Therefore, Claimant s testimony is not credible or persuasive to support a finding of disability. WCJ s Decision, March 31, 2011 (Decision), Findings of Fact (F.F.) Nos. 6-7; Reproduced Record (R.R.) at 23a-24a. Claimant appealed to the Board and argued that the WCJ failed to issue a reasoned decision where she placed significant emphasis on Claimant s two motor vehicle accidents which occurred while Claimant was returning from doctor s appointments for treatment of his work injury. The Board affirmed. 4

Claimant raises two issues on appeal 1 : 1) whether the Board s decision to terminate benefits properly included all of Claimant s work injuries; and 2) whether the Board erred when it affirmed the WCJ s credibility determinations. 2 Claimant also contends that Dr. Schmidt s testimony failed to address Claimant s accepted work injuries because no competent evidence was submitted concerning the nature and extent of these injuries. In a Termination proceeding, the burden of proof is on the employer to establish that the claimant fully recovered from his work-related injury, or that any remaining disability is no longer the result of the work injury. GA & FA 1 This Court s review is limited to a determination of whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence, or whether constitutional rights were violated. Vinglinsky v. Workmen s Compensation Appeal Board (Penn Installation), 589 A.2d 291 (Pa. Cmwlth. 1991). 2 Claimant also contends that the WCJ s decision was inconsistent with this Court s previous decision in Leca v. Workers Compensation Appeal Board (Philadelphia School District) 39 A.3d 631 (Pa. Cmwlth. 2012), which affirmed the board s decision to grant employer s Utilization Review Determination Petition (UD Determination) that chiropractic care for claimant beginning February 14, 2008, was not reasonable and necessary. In the present matter, Claimant argues that the WCJ s decision in the prior UD Determination was inconsistent because Dr. Schmidt found Claimant was fully recovered, which contradicted one of the Employer s medical reports that Claimant was a surgical candidate. Claimant did not raise this issue before the Board, therefore, it is waived. In Budd Baer, Inc. v. Workers Compensation Appeal Board (Butcher), 892 A.2d 64, 67 (Pa. Cmwlth.), petition for allowance of appeal denied, 588 Pa. 784, 906 A.2d 544 (2006), this Court stated, Issues not raised before the WCJ and the Board are deemed waived on appeal to this Court. While this Court s opinion and order was not filed prior to Claimant s appeal to the Board in the present matter, the WCJ s decision in the utilization review determination was filed. Claimant had the opportunity to raise this issue but failed to do so. 5

Wagman, Inc. v. Workers Compensation Appeal Board (Aucker), 785 A.2d 1087 (Pa. Cmwlth. 2001). The WCJ determined that the testimony of Dr. Schmidt that, as of August 31, 2009, Claimant was fully recovered from his April 14, 2004, work injury to be credible and persuasive, and is accepted as fact in this case. WCJ s Decision, F.F. No. 6 at 4; R.R. at 23a. The WCJ, as the ultimate fact finder in workers compensation cases, has exclusive province over questions of credibility and evidentiary weight, including a medical witness, in whole or in part. Greenwhich Collieries v. Workmen s Compensation Appeal Board (Buck), 664 A.2d 703, 706 (Pa. Cmwlth. 1995). Claimant argues that the Board erred when it found that Dr. Schmidt s opinion was supported by his review of Claimant s medical records. Again, the WCJ, as the ultimate fact-finder, determined the testimony of Dr. Schmidt was clear and unequivocal, and supported by the results of his examination and his review of Claimant s medical records. WCJ s Decision, F.F. No. 6 at 4; R.R. at 23a. Further, Dr. Smith admitted that an MRI study performed four months after the April 14, 2004 work injury found pre-existing degenerative disc disease and disc [desiccation] at level L4-5. WCJ s Decision, F.F. No. 6 at 4; R.R. at 23a. This Court is satisfied that the WCJ acted within permissible bounds of discretion when the WCJ determined Dr. Schmidt s medical testimony was supported by the results of his examination of Claimant. This Court will not reweigh the credibility determinations of the WCJ. 6

Accordingly, the decision of the Board is affirmed. BERNARD L. McGINLEY, Judge 7