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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
National Freight, Inc.,
:

Petitioner
:

:

v.

: No. 1087 C.D. 2004

:
Workers' Compensation Appeal
:
Board (Whispell),

:

Respondent
:

:

:
Richard Whispell,

:

Petitioner
:

:

v.

: No. 1104 C.D. 2004

: Submitted: December 3, 2004
Workers' Compensation Appeal
:
Board (National Freight, Inc.),
:

Respondent
:
BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge
HONORABLE
MARY
HANNAH LEAVITT, Judge

HONORABLE JAMES R. KELLEY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE LEAVITT

FILED: March 9, 2005

Richard Whispell (Claimant) petitions for review of three
adjudications of the Workers' Compensation Appeal Board (Board) that remanded
in part, and affirmed in part, three decisions of the Workers' Compensation Judge
(WCJ). In the end, the Board concluded that Claimant suffered a work-related
injury that caused him to be disabled for a closed period of time; that Claimant
failed to establish that Employer's contest was unreasonable; and that the WCJ did

not abuse his discretion in refusing to award penalties against Employer.
Claimant's employer, National Freight, Inc. (Employer) also petitions for review of
the Board's order, asserting that the Board erred in affirming the WCJ, because he
relied upon incompetent medical testimony in concluding that Claimant's shoulder
problems were work-related.1 Employer seeks to have the Board reversed on the
award of benefits for a closed period.
The relevant facts found by the WCJ in his three separate decisions
are as follows. In 1987, Claimant was hired by Employer as a tractor trailer driver
at its Meshoppen, Pennsylvania plant.2 On March 20, 1997, and again on April 17,
1997, Claimant visited his primary physician, Dr. Richard Benoit, with complaints
of a stiff neck that caused him pain. During the April 17th visit, Claimant reported
that the pain extended down his left arm to the elbow and that he suffered some
numbness in his fingers. The office notes of each visit make no mention of a
work-related trauma. A neurosurgeon, Dr. Nakkache, observed similar pain in
Claimant in a report dated April 28, 1997.
On April 30, 1997, Claimant suffered a work-related injury to the
upper left back and neck while working in Hatfield, Massachusetts.3 According to

1 The cross petitions for review were consolidated by order of this Court on June 3, 2004; by
order of June 11, 2004, Claimant was designated Petitioner and Employer as Respondent.
2 Employer is a New Jersey-based trucking company that provides services in various states,
including Pennsylvania. In addition, during the entire time Claimant was employed with
Employer, he resided in Pennsylvania.
3 At a hearing on September 22, 1998, before the WCJ, Claimant testified about prior neck and
shoulder problems:
Q. [C]oncerning your past medical history prior to the date of injury ... When, if
ever, did you injure your neck or left shoulder or left upper extremity at all
prior to April 30th of 1997?
(Footnote continued on the next page . . . )

2

Claimant, while he was hooking a wheel from his trailer, a pin failed to catch,
causing him to slam against another trailer, thereby injuring his left shoulder and
neck. He immediately experienced a stabbing pain, a burning sensation and
numbness from his shoulder down his left arm. Claimant contacted Employer's
dispatcher by phone to report his injury, and the following day, Claimant reported
his injury to Employer's workers' compensation officer.
Claimant was advised to see his primary physician, and he saw Dr.
Benoit on May 1, 1997. On June 26, 1997, Claimant saw Dr. Asit Patel, an
anesthesiologist, seeking treatment for his neck pain and left arm numbness. Dr.
Patel administered three epidural steroid injections, which, according to Claimant,
provided relief only if he was resting or not performing any activity. In his notes
of July 24, 1997, Dr. Patel reported that Claimant was able to work with his left
arm in relative comfort.

(continued . . . )
A. Back in `89 I got hit by a box in the back of my neck and was off work two
weeks.
* * *
Q. Now, other than that, were there any other accidents or trauma to your neck or
left upper extremity?
A. No, sir.
* * *
Q. Prior to April 30th of 1997, when, if ever, did you have similar types of
symptoms?
A. I didn't, never did.
Reproduced Record at 32-33, 46 (R.R. ___ ). Employer's medical expert also stated at his
deposition that Claimant claimed that he, "apparently had an injury several days earlier [to April
30, 1997,] where he struck his head and had seen a local neurosurgeon prompting an MRI of his
neck. R.R. 159.

3

Claimant also saw John A. Kline, M.D., who practices physical
medicine and rehabilitation. Dr. Kline found Claimant to be experiencing thoracic
pain and muscle spasms, which Dr. Kline attributed to the April 30, 1997, incident.
Dr. Kline prescribed physical therapy and muscle relaxants. Dr. Kline also noted
that Claimant had difficulty in engaging in daily activities such as dressing and
overhead reaching.4 Meanwhile, on August 26, 1997, Dr. Patel reported that
Claimant's arm was completely functional, and that Claimant was "quite happy."
R.R. 163.
Despite these conflicting diagnoses, on September 25, 1997, Claimant
filed a claim petition for benefits under the Workers' Compensation Act (Act).5
The petition alleged a work-related injury with a period of disability beginning
April 30, 1997, and continuing thereafter to the present. Employer filed a timely
and responsive answer denying all material allegations.
On October 29, 1997, Dr. Kline performed electrodiagnostic (EMG)
studies that revealed that Claimant had a median nerve entrapment, which was
mild on the right side at the carpal tunnel and moderately severe on the left side at
the carpal tunnel. The EMG ruled out cervical radiculopathy. The doctor noted in
his report that the left side carpal tunnel syndrome was related to Claimant's work
injury.
As a result, on December 18, 1997, Claimant was referred to Dr.
Thomas Byron, an orthopedic surgeon, for carpal tunnel syndrome. In the
meantime, Claimant also saw an orthopedic surgeon, Dr. Sternlieb, who noted that

4 When asked if he had reviewed Dr. Patel's records on Claimant during this period of co-
treatment, Dr. Kline initially stated that he had, but after further questioning, admitted that he
had not in fact reviewed the records.
5 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1051-1066.

4

Claimant's symptoms suggested the possibility of left thoracic outlet syndrome.
However, this was ruled out by a bone scan done on February 26, 1998, which was
normal. Soon thereafter, Dr. Byron performed an operative release of the median
nerve in the carpal tunnel on April 3, 1998.
In spite of the release surgery, Claimant continued to complain of
persistent numbness of the hands. Dr. Kline believed that Claimant's continued
injury and pain stemmed from his shoulder. On June 29, 1998, Dr. Kline
diagnosed Claimant with possible left rotator cuff tendonitis, believed to be caused
by Claimant's April 30, 1997, trauma.
Claimant was again referred to the orthopedic surgeon, Dr. Byron,
who performed an MRI (magnetic resonance imaging) on Claimant's left shoulder
on July 27, 1998. Dr. Kline noted that the MRI showed some moderate
impingement at the joint, located at the top part of the rotator cuff, but it did not
show a tear.
By October 1998, Claimant declared he had still not experienced
significant relief from his left shoulder pain. As a result, Dr. Byron performed an
acromioplasty, or decompression, removing the impingement on Claimant's left
shoulder. Claimant stated that this procedure was not helpful.
On October 16, 1998,6 the WCJ issued a decision (WCJ-I), granting
Claimant's claim petition on the basis of Dr. Kline's medical reports, which stated

6 The case originally proceeded to a hearing before the WCJ on December 12, 1997. At that
time, Employer argued that Pennsylvania did not have jurisdiction because Employer was
located in New Jersey and the accident occurred in Massachusetts. The WCJ allowed the parties
to submit briefs on whether Claimant, who was receiving workmen's compensation benefits in
New Jersey, was entitled to receive benefits pursuant to Pennsylvania law. The WCJ denied
Employer's motion to have Claimant's petition dismissed for lack of jurisdiction. Employer
acknowledged that Pennsylvania does have jurisdiction.

5

that all Claimant's medical problems7 were related to the April 30, 1997, accident.
Employer objected to the admission of these medical reports as inadmissible
hearsay because Clamant sought compensation for longer than fifty-two weeks.
The WCJ awarded Claimant total disability benefits from May 1, 1997, and
continuing. In addition to wage loss and medical benefits, the WCJ ordered
Employer to pay attorney's fees and penalties. Employer filed a timely appeal to
the Board.
In March 2000, while Employer's appeal with the Board was pending,
Dr. Kline did a final examination of Claimant. Dr. Kline found Claimant to have
some tenderness in his left shoulder with some mild muscle impingement. Dr.
Kline reached the following diagnosis:
[H]e had did have [sic] a left rotator cuff irritation with
impingement, for which he did undergo acromioplasty, or
decompression, and that he had a left median nerve entrapment
at the area of left carpal tunnel, which was also surgically
released.
R.R. 126. Dr. Kline prescribed several pain medications, and he further noted that
the possibility of Claimant returning to his pre-injury employment without
restrictions was poor, as was the possibility of a total and complete recovery.
On May 18, 2000, the Board reversed the WCJ decision (WCAB-I)
for the reason that Dr. Kline's pre-March 2000 medical reports were hearsay.
"Hearsay evidence, properly objected to, is not competent to support an award of
compensation." WCAB-I at 4; R.R. 90. The Board remanded to the WCJ with

7 Dr. Kline's reports stated that Claimant's upper back pain, neck pain, left side median nerve
entrapment of the carpal tunnel, and left rotator cuff tendonitis all resulted from Claimant's April
30, 1997 work-related injury.

6

instructions to receive evidence from the parties as needed to support their
respective burdens of proof.
Following the remand, Employer requested Claimant to undergo an
Independent Medical Examination (IME) by Dr. Patrick Fricchione on October 6,
2000. Dr. Fricchione took a history from the Claimant and performed a physical
examination. He also reviewed the medical records and studies pertaining to
Claimant's prior care and treatment. Thereafter, on October 23, 2000, Dr.
Fricchione was deposed.
Dr. Fricchione testified that he found no evidence that Claimant's
work-related injury was responsible for Claimant's ongoing complaints of pain.
Dr. Fricchione opined that Claimant did not sustain any left shoulder impingement
or carpal tunnel syndrome as a result of the April 1997 incident. He opined that
Claimant was fully recovered from whatever injury he may have sustained on
April 30, 1997.
In his decision (WCJ-II) of June 5, 2001, the WCJ granted Claimant's
petition, with limitations, by crediting in part the testimony of Claimant, Dr. Kline
and Dr. Fricchione. In doing so, the WCJ stated
[T]his [WCJ] has accepted as credible claimant's testimony
relevant to the incident that he described as occurring at work
on April 30, 1997. Moreover, this [WCJ] accepts as credible
the testimony of Dr. Kline to the extent that there is a certain
disability attributable to an upper thoracic and cervical strain to
the claimant resultant from the incident on April 30, 1997. Said
injury is found inasmuch as no testimony has been presented by
[Employer] disputing claimant's description of the events as
occurring on April 30, 1997.
Nevertheless, from the medical evidence presented by
[Employer] herein, it is obvious that the claimant did have prior
problems referable to his neck and left arm, pre-existing
problems which the claimant denied as having at hearing

7

before this [WCJ]. The same is confirmed by the medical
records of Dr. Nakkache, Dr. Sternlieb and claimant's family
physician, Dr. Benoit. In fact, claimant was treating with some
of these physicians just days prior to the work injury herein.
This [WCJ] therefore finds that any disability attaching to the
claimant beginning October 6, 2000, the date of Dr.
Fricchione's evaluation, is due to claimant's pre-existing
problems which do not have their genesis in the claimant's
April 30, 1997 work injury herein. On this precise point, the
testimony of Dr. Fricchione has been accepted as credible. Dr.
Kline's findings and opinions relevant to claimant having
carpal tunnel syndrome resultant from the incident that claimant
described as occurring at work is rejected as not credible and no
finding can be made herein therefore that claimant's carpal
tunnel syndrome as found by Dr. Kline is resultant from the
claimant's April 30, 1997 work injury.
WCJ-II at ¶12, R.R. 207 (emphasis added). In accordance with these findings, the
WCJ terminated Claimant's benefits, effective October 6, 2000. The WCJ held
Employer responsible for Claimant's attorney costs associated with the proceeding.
Although the WCJ did not address whether Claimant was entitled to a penalty, he
did find Employer's contest to be reasonable.
Both parties appealed to the Board. On March 13, 2002, the Board
again remanded (WCAB-II) because the WCJ had failed to rule on whether
Claimant was entitled to penalties. However, based on its review of the record, the
Board affirmed the WCJ's decision to limit Claimant's benefits to a closed time
period.
After this second remand, on July 31, 2002, the WCJ issued his third
decision (WCJ-III) denying Claimant's penalty petition based on the prior finding
that Employer had not violated the act and that its contest was reasonable. Upon
appeals by both parties, on April 28, 2004 (WCAB-III), the Board affirmed the
WCJ's decision, reasoning that, absent an abuse of discretion, the Board should not

8

overturn a discretionary decision not to award a penalty on appeal. Claimant and
Employer now petition this Court for review.8 We will consider Claimant's issues
and, thereafter, Employer's issues.
Claimant first argues that the Board's remand of WCJ-I, simply
because Dr. Kline's medical reports were inadmissible, was in error. Claimant
contends that, with or without the medical reports of Dr. Kline, substantial
competent evidence supported the WCJ's award of benefits in WCJ-I. The
Board's improper remand, Claimant contends, gave Employer a "second bite at the
apple" to defend against Claimant's petition. Employer counters that the WCJ
erred in admitting Dr. Kline's reports, which were hearsay, over Employer's
objections, leaving Claimant without evidence to support his claim petition.
Under Section 422 of the Act, medical reports may be accepted into
evidence to support a claim involving fifty-two (52) weeks or less of disability.9
However, Section 422 of the Act also states, "where any claim for compensation at
issue before a workers' compensation judge exceeds fifty-two weeks of disability,
a medical report shall be admissible as evidence unless the party that the report is

8 Our scope of review is limited to determining whether there has been a violation of
constitutional rights, an error of law or whether necessary findings of fact are supported by
substantial evidence. Tri-Union Express v. Workers' Compensation Appeal Board (Hickle), 703
A.2d 558, 561 (Pa. Cmwlth. 1997). Substantial evidence is relevant evidence that a reasonable
mind might accept as adequate to support a conclusion. York Terrace/Beverly Enterprises v.
Workmen's Compensation Appeal Board (Lucas), 591 A.2d 762, 764 n.5 (Pa. Cmwlth. 1991).
9 Section 422 of the Act provides, in pertinent part, that:
Where any claim for compensation at issue before a workers' compensation judge
involves fifty-two weeks or less of disability, either the employe or the employer
may submit a certificate by any health care provider as to the history,
examination, treatment, diagnosis, cause of the condition and extent of disability,
if any....
77 P.S. §835 (emphasis added).

9

offered against objects to its admission." 77 P.S. §835 (emphasis added). Here,
Employer objected to Claimant's evidence in the form of Dr. Kline's medical
reports, and the Board correctly concluded that the WCJ erred in admitting them.10
However, this conclusion is not dispositive because Claimant contends that even
without Dr. Kline's reports, he satisfied his burden of proof.

Section 301(c)(1) of the Act makes an employer liable for payment of
medical and disability benefits that arise from work-related injuries. McDonnell
Douglas Truck Services, Inc. v. Workmen's Compensation Appeal Board
(Feldman), 655 A.2d 655, 657 (Pa. Cmwlth. 1995). It is a claimant's burden to
prove that an injury arose in the course of employment and was related thereto, but
the quantum of evidence required depends upon whether or not the injury is
obviously work-related. Kensington Manufacturing Co. v. Worker's
Compensation Appeal Board (Walker), 780 A.2d 820, 822 (Pa. Cmwlth. 2001). In
making such a determination, this Court has stated that:
An obvious work-related injury is one that immediately
manifests itself while a claimant is in the act of doing the kind
of work which can cause such an injury. A classic example
would be the laborer who grabs his back in pain after lifting his
shovel full of wet concrete. In such a case, the causal

10 Dr. Kline's reports were hearsay, and uncorroborated hearsay cannot support an adjudication.
We have explained:
(1) Hearsay evidence, properly objected to, is not competent evidence to support
a finding of the Board.... (2) Hearsay evidence, admitted without objection,
will be given its natural probative effect and may support a finding of the
Board, if it is corroborated by any competent evidence in the record, but a
finding of fact based solely on hearsay will not stand.
Walker v. Unemployment Compensation Board of Review, 367 A.2d 366, 370 (Pa. Cmwlth.
1976) (citations omitted). In Flanagan v. Workmen's Compensation Appeal Board (U.S. Steel
Corporation), 598 A.2d 613 (Pa. Cmwlth. 1991), this Court applied the Walker rule to medical
reports and records in workers' compensation proceedings.

10

connection is so clear that a lay person can see the connection.
Under such circumstances, the claimant's testimony is
sufficient to connect the injury to claimant's employment, and
additional medical testimony is not required.
Giant Eagle, Inc. v. Worker's Compensation Appeal Board (Thomas), 725 A.2d
873, 876 (Pa. Cmwlth. 1999) (citations omitted). If, however, the connection is not
obvious, then the claimant must establish the connection through unequivocal
medical testimony. Kurtz v. Worker's Compensation Appeal Board (Waynesburg
College), 794 A.2d 443, 448 (Pa. Cmwlth. 2002).
In WCJ-I, the WCJ credited the testimony of Claimant and found that
Claimant sustained a work-related injury to his left arm, left shoulder and neck
when he was slammed into an adjacent trailer. WCJ-I, Findings of Fact 15 (WCJ-
I, R.R. 81).11 The Board agreed that Claimant's testimony established a work-
related trauma to his left shoulder,12 but this was only one part of Claimant's

11 "Questions of credibility and weight of evidence are within the sole province of the WCJ and
will not be disturbed on review by this Court if they are supported by substantial, competent
evidence." Kurtz, 749 A.2d at 448. Claimant testified that when he was slammed up against
another trailer, he immediately experienced a stabbing pain, a burning sensation, and numbness
down his left arm and shoulder area, and his testimony was credited by the WCJ. The
connection between his employment and the injury to his left shoulder, arm and neck region is
obvious to a lay person.
12 Employer argues that Claimant's testimony was inadequate to establish causation. It relies on
Lewis v. Workmen's Compensation Appeal Board (Pittsburgh Board of Education), 472 A.2d
1176 (Pa. Cmwlth. 1984) for the proposition that the timing of an injury was not a reliable
indication of the cause of any disability, especially if the claimant had a pre-existing condition.
In Lewis, the claimant suffered a back injury while moving gymnasium equipment, but he did
not report the injury to his employer and continued to work for the next five days. We found no
obvious connection between the work incident and the resulting injury.
In the present case, the Claimant testified that he immediately experienced pain following the
work incident; he reported the incident immediately to Employer. In Morgan v. Giant Markets,
Inc., 483 Pa. 421, 397 A.2d 415 (1979), the claimant, a truck driver, was unloading a truck when
he experienced immediate back pain. Our Supreme Court held that a causal connection related
to whether an injury is work-related is obvious where one is doing an act that requires force or
(Footnote continued on the next page . . . )

11

burden. Claimant also had the burden of establishing a causal connection between
the work-related injury and the resulting disability. Inglis House v. Workmen's
Compensation Appeal Board (Reedy), 535 Pa. 135, 634 A.2d 592 (1993). Thus,
the Board remanded for more evidence on the issue of Claimant's disability.
The difference between proving an injury and proving the extent and
duration of a disability has been addressed in Cardyn v. Workmen's Compensation
Appeal Board (Heppenstall), 517 Pa. 98, 534 A.2d 1389 (1987). In Cardyn, the
Pennsylvania Supreme Court held that where the relationship between the injury
and the disability is not obvious, more is required than a claimant's subjective
testimony. Id. at 101-102, 534 A.2d at 1390. In that situation, a claimant must
introduce unequivocal medical evidence to sustain his burden of proof. Id. at 103,
534 A.2d at 1391.13

(continued . . . )
strain and pain is experienced at the point of force or strain. Id. at 424, 397 A.2d at 416. Under
Morgan, the connection between Claimant's work incident and his injury is obvious, and
therefore medical testimony was not necessary to prove this particular causal connection.
13 The Court in Cardyn expounds on the inability of a claimant to establish this further causal
connection:
There is a difference between an injury and its consequences, and tracing those
consequences is often beyond the skill and experience of laymen since the
answers can lay in complicated etiologies known only to experts. For example, if
a man falls at work and cuts his arm he will not normally need medical testimony
to prove that he was injured at work. But if a man claims that the injury to his
arm rendered his hand worthless then medical testimony will generally be
required to support such a claim since the relationship of the arm muscles to the
function of the hand is not a subject about which lay witnesses can normally
testify with expertise. To obviate the need for expert diagnosis regarding the
consequence of an injury would be to make every man his own physician, a
privilege that wise men do not exercise. Certainly no system can support the cost
of what many men suppose or believe is a consequence of their injury. Neither
should those suffering consequences be deprived upon inexpert lay beliefs.
Cardyn, 517 Pa. at 102, 534 A.2d at 1390-1391 (emphasis in original).

12

In WCJ-I, the WCJ relied on the inadmissible medical reports of Dr.
Kline to determine the existence and extent of Claimant's disability. In his
findings of fact, the WCJ stated that:
The medical reports of Dr. John A. Kline, Jr. clearly establish
claimant's work injury herein and the disability attaching to
him.
WCJ-I, F.F. 16(c), R.R. 82 (emphasis added). Once these reports were deleted
from the record as inadmissible, Claimant was without medical evidence to support
a finding that Claimant's left shoulder injury rendered him incapable of working.
Thus, we hold it was proper for the Board to remand on the question of whether
Claimant's work-related injury caused his inability to work.14
Claimant next contends that the Board erred in affirming WCJ-II
because it was based on Dr. Fricchione's opinion, which Claimant contends was
equivocal. Employer counters that Dr. Fricchione's testimony that Claimant had
fully recovered as of October 5, 2000, was in no way equivocal.

14 Claimant also argues that the payment of workers' compensation benefits under New Jersey
law constitutes an admission by Employer with respect to the Pennsylvania claim. While
admissions of a party do constitute evidence in workers' compensation matters, see, e.g., CRL of
Maryland, Inc. v. Workmen's Compensation Appeal Board (Hopkins), 627 A.2d 1238, 1243 (Pa.
Cmwlth. 1993), Employer's New Jersey workers' compensation insurance carrier, NJ
Manufacturers, is not a party in this case. As a result, Employer's Pennsylvania workers'
compensation carrier, Crawford & Company, is not bound by its actions.
In addition, Claimant also argues that Employer's admission that "other than some procedural
arguments and legal arguments, we don't have a defense," R.R. 24, provided the WCJ with
competent and credible evidence to find indefinite total temporary disability benefits. Stated
otherwise, Claimant believes that the factfinder can draw an adverse inference from Employer's
decision not to present a rebuttal case. That would be error. It was Claimant's burden of proving
a right to benefits. Employer chose to contest Claimant's case by cross-examination and legal
argument; a defending party is never required to do more.

13

The determination of whether medical testimony is equivocal is a
question of law fully reviewable by this Court. State Workmen's Insurance Fund
v. Workmen's Compensation Appeal Board (Wagner), 677 A.2d 892, 896 n. 6 (Pa.
Cmwlth. 1996). Further, in conducting such a review, the medical witness'
testimony must be taken as a whole and the conclusion should not rest upon a few
words of the testimony taken out of context. Id. Nevertheless, questions of
credibility, the resolution of conflicts in the testimony and the weight to be given
the evidence presented are matters solely within the province of the WCJ. Senecal
v. Workmen's Compensation Appeal Board, 425 A.2d 1200, 1202 (Pa. Cmwlth.
1981).
Further, under Section 413 of the Act,15 a WCJ is empowered to take
any appropriate action as indicated by the evidence presented, including the award
of benefits for a closed period. 77 P.S. §772. If the employer can establish that the
claimant is fully recovered from his work-related injury and that any remaining
disability is not the result of that work-related injury, then the employer is entitled
to a termination of the claimant's benefits. McFaddin v. Workmen's Compensation

15 Section 413 of the Act states, in pertinent part:
A workers' compensation judge designated by the department may, at any time,
modify, reinstate, suspend, or terminate a notice of compensation payable, an
original or supplemental agreement or an award of the department or its workers'
compensation judge, upon petition filed by either party with the department, upon
proof that the disability of an injured employe has increased, decreased, recurred,
or has temporarily or finally ceased, or that the status of any dependent has
changed. Such modification, reinstatement, suspension, or termination shall be
made as of the date upon which it is shown that the disability of the injured
employe has increased, decreased, recurred, or has temporarily or finally ceased,
or upon which it is shown that the status of any dependent has changed....
77 P.S. §772.

14

Appeal Board (Mononghahela Valley Hospital), 620 A.2d 709, 711 (Pa. Cmwlth.
1993).
Claimant asserts that Dr. Fricchione's opinion was equivocal because
it only addressed Claimant's condition as of the date of the IME and because it
conceded that Claimant suffered an injury on April 17, 1997. We disagree that
these points rendered Dr. Fricchione's opinion unequivocal. Dr. Fricchione
diagnosed Claimant with problems unrelated to the April 30, 1997, incident.
Indeed, Drs. Nakkache, Sternlieb and Benoit all reported that Claimant suffered
pre-existing problems in his neck and left arm, which supported Dr. Fricchione's
opinion. These pre-existing problems, the WCJ found, were the cause of
Claimant's continuing disability. The WCJ credited the testimony of Dr.
Fricchione, who opined, without equivocation, that Claimant's ongoing medical
problems were not a result of the April 30, 1997, incident.
In sum, substantial evidence supported the WCJ's finding that as of
October 5, 2000, Claimant had recovered from his work-related injury. The Board
correctly affirmed WCJ-II, which terminated Claimant's benefits as of October 6,
2000, and limited Claimant's benefits for a closed period.
Claimant next argues that the Board erred in affirming the WCJ-II
finding of a reasonable contest by Employer. Claimant contends that until the date
of Employer's IME, Employer's contest was unreasonable.
Section 440 of the Act provides that
[i]n any contested case where the insurer has contested liability
in whole or in part, . . . in whose favor the matter at issue has
been finally determined in whole or in part shall be awarded, in
addition to the award for compensation, a reasonable sum for
costs incurred for attorney's fee, witnesses, necessary medical
examination, and the value of unreimbursed lost time to attend
the proceedings: Provided, That cost for attorney fees may be

15

excluded when a reasonable basis for the contest has been
established by the employer or the insurer.
77 P.S. §996 (emphasis added). The burden is on the employer to establish a
reasonable basis for the contest. Ricks v. Worker's Compensation Appeal Board
(Parkway Corp.), 704 A.2d 716 (Pa. Cmwlth. 1997). The test is whether
Employer's contest was brought to resolve a genuinely disputed issue or merely for
purposes of harassment; notably, a challenge to the extent of an alleged disability
is a basis for a reasonable contest. Montgomery Hospital v. Worker's
Compensation Appeal Board (Armstrong), 793 A.2d 182, 190 (Pa. Cmwlth. 2002).
In Crouse v. Worker's Compensation Appeal Board (NPS Energy
SVC), 801 A.2d 655, 658-59 (Pa. Cmwlth. 2002), this Court found that an
employer's contest was unreasonable until the time the employer came into
possession of medical evidence supporting its position. The employer gained this
evidence through an IME. We explained that
an employer's contest might become reasonable at some later
point in the proceedings. Establishing reasonable contest via
after-acquired medical evidence, however, will not negate an
unreasonable contest undertaken prior to a supporting IME.
Crouse, 801 A.2d at 660. Here, Claimant asserts that Employer's contest was
unreasonable until it came into possession of the report of the IME, showing that
Claimant was totally recovered as of October 5, 2000.
However, Employer had other bases to contest Claimant's petition for
benefits. Claimant himself acknowledged that he was treated for his left shoulder
problem only days before the April 30, 1997, incident, and it was Claimant's
burden to prove that his disability resulted from unhooking his trailer and not from
his pre-existing medical problem. Crouse does not stand for the proposition that

16

an employer must order an IME whenever a claim petition is filed. Under
Montgomery, it was reasonable for Employer to contest whether the incident of
April 30, 1997, or his pre-existing condition was the cause of Claimant's problems.
The Board correctly affirmed the WCJ's decision that Employer's contest was
reasonable.
In his final issue, Claimant argues that the Board erred in affirming
the WCJ's denial of penalties since Employer violated the Act by failing to issue a
notice of compensation denial. The Board found the Employer had no reason to
issue this notice, required under Pennsylvania law, because at the time Claimant
gave notice of the injury to Employer, Claimant was receiving benefits under New
Jersey law. Thus, the Board found that Employer did not violate the Act. In any
case, as noted by Employer, the award of penalties is discretionary even where
there has been a violation of the Act.
Section 435(d) of the Act16 authorizes a WCJ to impose penalties.
Edmond v. Workmen's Compensation Appeal Board (Devon Apparel, Inc.), 402
A.2d 715, 717 (Pa. Cmwlth. 1979). However, "an apparent offender may not be
penalized under [Section 435](d) without notice and an opportunity to be heard on
that issue." Id. Further,
[a] problem arises, however, where, as here, Claimant makes a
claim for penalties in conjunction with another proceeding. We
believe that the correct procedure under these circumstances is

16 It states:
The department, the board, or any court which may hear any proceedings brought
under this act shall have the power to impose penalties as provided herein for
violations of the provisions of this act or such rules and regulations or rules of
procedure[.]
77 P.S. §991(d).

17

for Claimant to make a request, either in writing or on the
record, that the referee impose penalties. The referee should
then permit the employer to respond to the request, and
thereafter schedule a hearing on the issue, if one becomes
necessary.
Id. In addition, "[t]he question of penalty turns on whether the employers caused
unreasonable or excessive delays." Spatola & Thompson v. Workmen's
Compensation Appeal Board (Kissel), 401 A.2d 877, 879 (1979).
In WCJ-III, the WCJ reversed the penalty award imposed in WCJ-I,
after the Board's remand of WCJ-II. In WCJ-III, the WCJ found the following:
4. [I]t must be mentioned at first at no time has claimant filed
any Penalty Petition specifically with reference to
claimant's Claim Petition. The only Penalty Petition ever
filed by the claimant was withdrawn by claimant by order
of this [WCJ] dated February 24, 1999. Nevertheless, the
issue of penalties was addressed by this [WCJ] on the
original Claim Petition and penalties were awarded based
upon the evidence presented initially when the Claim
Petition was litigated. Penalties were awarded at that time
inasmuch as no evidence was presented by [Employer] as
against the claim petition and in addition to finding an
unreasonable contest this [WCJ] found violation of the Act
for failing to pick up the claim....
5. The matter once again ... returned to this [WCJ] and both
parties were allowed to present evidence in support of their
respective positions.... This [WCJ] found a reasonable
contest to exist based upon the medical evidence presented
by [Employer]. Therefore, inasmuch as a reasonable
contest was found, this [WCJ] did not assess any penalties
against [Employer] and did not specifically mention the
same within the most recent decision on the Claim Petition
as no Penalty Petition was actually pending.
WCJ-III, F.F. 4-5, R.R. 224 (emphasis added). The WCJ believed, apparently, that
the effect of the remand was to eliminate the penalty petition.

18

Claimant asserts that in a letter to the WCJ, penalties were requested
and Employer was so notified.17 However, we agree with the Board that Employer
did not violate the Act. Employer was not required to acknowledge or deny
liability within 21 days since Claimant was receiving benefits under New Jersey
law. Even so, had the WCJ found that Employer had violated the Act, penalties
are discretionary. Candito v. Worker's Compensation Appeal Board (City of
Philadelphia), 785 A.2d 1106, 1108 (Pa. Cmwlth. 2001). Absent an abuse of
discretion, the Board should not overturn a decision not to award a penalty on
appeal. We hold that the Board correctly affirmed the WCJ's decision not to grant
penalties.

17 In his appeal to the Board, Claimant stated, "Claimant made a timely penalty request and
employer had proper notice of claimant's penalty request as it related to the employer's handling
of the original claim petition in so far as the employer failed to timely issue bureau documents."
Appeal from WCJ-III, Certified Record and dated August 20, 2002. The record supports this
assertion. It provides:
Judge Grady: It's the insurers [sic] burden of proof to issue a notice of comp denial
also. Why was one never issued here?
Atty. Meyers [Employer counsel]: I have no idea, your Honor. However
Judge Grady: What's the penalty for not issuing one?
Atty. Meyers: I don't know.
Atty. Kwak [Claimant counsel]: Your Honor, in response, just on those issues,
in my April 27, 1998 letter to you in response to Attorney Meyers April 24th
letter, on page two at the bottom, we were requesting that attorneys fee and
penalties be granted. I believe under the Spangler decision, . . . an employer has
an affirmative obligation to investigate a claim and it's [sic] compensability under
Pennsylvania law. It was for that reason, we don't believe that an adequate
investigation was done and we were seeking penalties as well, and just so the
record is clear that the employer was on notice that attorneys fees and penalties
were requested.
R.R. 69-70.

19

We turn now to Employer's appeal. Employer argues that the WCJ
erred in concluding that Dr. Kline's testimony was legally competent to establish
Claimant's right to disability benefits, even for a closed period. In addition,
Employer argues that the WCJ did not issue a reasoned decision and acted
arbitrarily and capriciously in accepting Dr. Kline's testimony.
Employer argues that the WCJ erred in relying on Dr. Kline's
testimony to find that Claimant's shoulder problems were work-related. Because
Dr. Kline had no knowledge of Claimant's relevant problems before the April 30,
1997 incident, his testimony was not competent.
In a workers' compensation proceeding, the WCJ is the ultimate
finder of facts. Chik-Fil-A v. Workers' Compensation Appeal Board (Mollick),
792 A.2d 678, 687 (Pa. Cmwlth. 2002). The WCJ, as the ultimate fact finder, has
exclusive province over questions of credibility and evidentiary weight. Hawkins
v. Workmen's Compensation Appeal Board (Medical College of Pennsylvania),
587 A.2d 387, 389 (Pa. Cmwlth. 1991). The WCJ may accept or reject testimony
of any witness, including a medical witness, in whole or in part. Id.
Further, the claimant has the burden of proving a causal relationship
between a work-related incident and his alleged disability. Lewis v.
Commonwealth, 508 Pa. 360, 365, 498 A.2d 800, 802 (1985). Where there is no
obvious connection between an injury and the alleged cause, that connection must
be established by unequivocal medical testimony. Id. To be unequivocal, the
medical witness must testify that in his professional opinion the medical condition
did come from the assigned cause, not that the condition might have come from the
assigned cause. Id. at 365-366, 498 A.2d at 802.

20

Here, the WCJ accepted as credible Claimant's testimony relevant to
the April 30, 1997, incident in WCJ-II. The WCJ also credited the testimony of
Dr. Kline to the extent that there was a certain disability attributable to Claimant's
upper back and neck strain that resulted from the April 30, 1997, incident.18
However, the WCJ also credited Dr. Fricchione's testimony in determining that
Claimant had fully recovered from the April 30, 1997, incident as of October 6,
2000. Employer seems to suggest that the April 30, 1997, incident did not occur at
all, but it provided no evidence to refute Claimant's account. Further, Dr.
Fricchione's opinion was premised on the fact that Claimant had suffered a trauma
on April 30, 1997.
In support of its contention that Dr. Kline's testimony was not
competent, Employer cites Chik-Fil-A v. Workers' Compensation Appeal Board
(Mollick), 792 A.2d 678 (Pa. Cmwlth. 2002). In Chik-Fil-A, the claimant's
medical expert based his findings of a work-related injury on an incomplete
medical history of the claimant. In that case, the claimant's medical witness
conceded that her evaluation would have been different but for the inaccurate
medical history of the claimant.
Chik-Fil-A is inapposite. In the present case, Claimant's testimony
established a work-related injury on April 30, 1997, and this testimony was
believed. Based on Dr. Fricchione's testimony, WCJ-II limited Claimant's
benefits to a closed period. Claimant sustained his burden of proving a causal
connection between the April 30, 1997, incident and his injury. Under Giant

18 The WCJ credited only those parts of Dr. Kline's testimony that related to Claimant's upper
back and neck injury caused by the April 30, 1997, incident. See R.R. 114-118. For a discussion
on causation of Claimant's work-related injury, see note 3.

21

Eagle, 725 A.2d at 876, Claimant's work-related injury immediately manifested
itself; medical testimony was not necessary to connect the injury to Claimant's left
shoulder to his employment.19
In Employer's final issue, it argues that the WCJ did not issue a
reasoned decision and acted arbitrarily and capriciously in accepting Dr. Kline's
testimony. Employer contends that a reasonable person would not have accepted
Dr. Kline's testimony because Dr. Klein had no knowledge of Claimant's relevant
problems prior to April 30, 1997.
Section 422(a) of the Act20 requires a WCJ to issue a reasoned
decision. In Daniels v. Workers' Compensation Appeal Board (Tristate
Transport), 574 Pa. 61, 828 A.2d 1043 (2003), our Pennsylvania Supreme Court
explained what is required in a reasoned decision, stating:
[W]e hold that a decision is "reasoned" for purposes of Section
422(a) if it allows for adequate review by the WCAB without
further elucidation and if it allows for adequate review by the

19 See supra note 12.
20 Section 422(a) of the Act provides in pertinent part:
All 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 and how a particular result was reached.
The workers' compensation judge shall specify the evidence upon which the
workers' compensation judge relies and state the reasons for accepting it in
conformity with this section. When faced with conflicting evidence, the workers'
compensation judge 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 workers' compensation judge 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.

22

appellate courts under applicable review standards. A reasoned
decision is no more, and no less.
Id. at 76, 828 A.2d at 1052. Where the medical testimony is conflicting, the WCJ
must explain his reasons for crediting one opinion over the other. Such reasons
may include timeliness, familiarity with the patient and possible bias. Id.
In the present case, the WCJ relied upon Dr. Kline's testimony to
establish that Claimant's work injury disabled him from May 1, 1997, until
October 5, 2000. The WCJ relied on Dr. Fricchione's testimony to establish a
complete recovery as of October 5, 2000. In WCJ-II, the WCJ noted with
specificity the factors of each medical expert to reach a determination as to the
extent of injury and disability of Claimant.21 The decision is a reasoned one under
the Daniels standard.22

21 In WCJ-II, the WCJ explained his credibility determinations as follows:
9. Dr. Kline testified on behalf of the claimant first seeing the claimant on
August 25, 1997. Prior to his deposition herein, the claimant was last seen by
Dr. Kline on March 6, 2000 and in the interim has treated the claimant having
seen him approximately fifteen (15) to twenty (20) times.
* * *
11. [Employer] presented testimony from Dr. Patrick Fricchione. Dr. Fricchione
performed one (1) evaluation on the claimant, the same on October 6, 2000.
At that time he took a history from the claimant and performed a physical
examination as well as review various records and studies pertaining to
claimant's prior care and treatment.
WCJ-II, at ¶¶ 9, 11, R.R. 206.
22 Employer also contends that the WCJ did not issue a reasoned decision because he accepted
Claimant's testimony. However, in WCJ-II, the WCJ specifically noted that he only accepted
Claimant's testimony relevant to the occurrence of the April 30, 1997, incident. It is not
unreasonable, contrary to Employer's assertions, that a person could injure himself in an area of
the body more than once. We disagree that in crediting Claimant's testimony as to the April 30,
1997, incident, the WCJ went beyond what a reasonable person could believe.

23

Employer also argues that the WCJ acted with capricious disregard23
of the evidence by ignoring evidence that disputed the occurrence of a work injury
on April 30, 1997. Instead, Employer contends, the WCJ arbitrarily relied upon
Claimant's testimony.
Employer properly directs us to the portions of Dr. Fricchione's
testimony that show Claimant did have pre-existing problems with his neck and
left arm. This evidence, however, does not rule out the possibility that Claimant
was not thereafter injured in the same area on April 30, 1997. Employer argues
that the WCJ ignored the testimony of Dr. Fricchione that established that
Claimant's disability was related to another incident or problem that occurred
several days prior to the April 30, 1997, incident. However, we do not read those
relevant portions of Dr. Fricchione's testimony to mean that all of Claimant's
shoulder problems after April 30, 1997, resulted from pre-existing problems. Dr.
Fricchione acknowledged "another incident" and a "second injury" in his
testimony. R.R. 165-166.
Moreover, in WCJ-II, the WCJ only accepted testimony that related to
Claimant's back and neck injury resulting from the April 30, 1997, incident. The
WCJ did not credit Claimant's testimony with respect to Claimant's ongoing

23 In Leon E. Wintermyer v. Workers' Compensation Appeal Board (Marlowe), 571 Pa. 189, 812
A.2d 478 (2002), the Pennsylvania Supreme Court identified the proper use of the standard of
capricious disregard:
Since an adjudication cannot be in accordance with law if it is not decided on the
basis of law and facts properly adduced, we hold that review for capricious
disregard of material, competent evidence is an appropriate component of
appellate consideration in every case in which such question is properly brought
before the court.
Id. at 203, 812 A.2d at 487.

24

disabilities, such as the carpal tunnel syndrome, that were alleged to be caused by
the April 30, 1997, incident. In short, the WCJ did not act with arbitrary and
capricious disregard of the evidence in granting Claimant benefits for a closed
period only.
For these reasons, we affirm the Board.

_____________________________

MARY HANNAH LEAVITT, Judge

25