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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
County of Lebanon and The PMA :
Group,

:

Petitioners

:

:

v.

: No. 1315 C.D. 2004

: Submitted: November 5, 2004
Workers' Compensation Appeal Board :
(Holtzman),

:

Respondent

:
BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge
HONORABLE
DORIS
A.
SMITH-RIBNER, Judge

HONORABLE JESS S. JIULIANTE, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SMITH-RIBNER

FILED: February 24, 2005

The County of Lebanon (Employer) appeals from an order of the
Workers' Compensation Appeal Board (Board) that affirmed the decision of a
workers' compensation judge (WCJ) granting Bonnie Holtzman's reinstatement
petition. Employer questions whether Holtzman failed to establish that her work-
related injury was a substantial, contributing factor to her disability when she had
multiple, nonwork-related conditions; whether the WCJ erred by admitting and
relying on the deposition testimony of Dr. Oliveri, Holtzman's medical expert,
when the deposition was untimely submitted; whether the WCJ erred in rejecting
the testimony of Dr. Noble, Employer's medical expert, on the basis that his
testimony was equivocal; and whether the WCJ issued a reasoned decision.

Since 1989 Holtzman worked as a caseworker for Employer's
Department of Mental Health/Mental Retardation. Holtzman had a history of back
problems predating these proceedings and first began seeing Dr. Marcelino Oliveri,

a board-certified orthopedic surgeon, in May 1997. In July 1997 Dr. Oliveri
performed surgery on three locations on Holtzman's spine, including the L2-3 area.
On September 30, 1997, Holtzman suffered a work-related injury to her left knee
and back when she fell off a street curb. She continued working for a few weeks
but then ceased working on Dr. Oliveri's recommendation.
Holtzman
underwent
surgical
procedures in October and November
1997 in order to remove infectious fluid from her spine, and in December 1997
Dr. Oliveri performed surgery to alleviate a herniated disc at the L2-3 location. On
February 5, 1998, Employer issued a Notice of Compensation Payable (NCP)
acknowledging a contusion to the left knee; the NCP was subsequently modified
by WCJ decision dated July 26, 1999 to include a back injury at the L2-3 location.
After periods of work and disability occurring from March through November
1998, including hip-replacement surgery performed in May 1998, Holtzman
returned to full-time employment with a suspension of benefits until July 13, 2000
when Dr. Oliveri informed Employer that Holtzman's condition was worsening and
that she was to cease working entirely.

Holtzman filed a reinstatement petition dated July 28, 2000. Hearings
were held in September and November 2000 and in January and April 2001, during
which the WCJ heard testimony from Holtzman and Stephanie Billman,
Holtzman's supervisor from July 1999 onward. Holtzman testified that 75 percent
of her work involved traveling outside the office, that she still experienced pain in
her legs and back and that when necessary she used assistive walking devices such
as a walker, wheelchair or cane. She allowed that she might be able to continue
working in some capacity with accommodations by Employer if Dr. Oliveri
approved such an arrangement. Billman testified regarding Holtzman's work
2

duties and noted that Holtzman had for some time experienced pain at work and
had been using assistive walking devices even before the September 1997 accident.

Dr. Oliveri testified in his deposition that Holtzman's fall on
September 30, 1997 resulted in a ruptured disc at L2-3 and that afterwards she
suffered severe disc degeneration at L2-3, a condition persisting even after
corrective surgery. Dr. Oliveri also opined that the accumulation of infectious
fluid in Holtzman's spine may have been due to the trauma of the fall, but he
acknowledged that this problem had resolved. In discussing his July 13, 2000
letter in which he recommended that Holtzman cease working, Dr. Oliveri noted
that Holtzman was having increased difficulty in walking and with incontinence,
that she had increasing pain in her back and legs, that working aggravated her
symptoms and that she has reached the end of the road as far as her work-related
activities were concerned. Dr. Oliver opined that Holtzman was totally disabled
because of the effects of multiple back surgeries, severe degeneration of the L2-3
disc, a hip replacement, and a poor prognosis for recovery. On cross-examination,
Dr. Oliveri recognized that, in addition to work-related injuries, Holtzman suffered
from a number of other conditions, including arthritis, hip problems, diabetes,
fibromyalgia and radiculopathy at other locations in her spine.

Employer presented the testimony of Dr. S. Ross Noble, board-
certified in physical medicine and rehabilitation, electrodiagnostic medicine and
spinal cord injury medicine. At Employer's request, on February 20, 2001,
Dr. Noble conducted an independent medical examination (IME) of Holtzman and
reviewed medical records from her previous treating physicians. Initially,
Dr. Noble noted that Holtzman had multiple medical problems going back to 1988.
Dr. Noble testified that Holtzman had recovered from any contusions to the knees
3

and from any lumbar wounds or infections that had been caused or aggravated by
her fall, that imaging studies showed that the disc rupture at L2-3 had been
successfully treated by Dr. Oliveri's surgery and that no residual herniation or
nerve irritation remained. He further noted that Holtzman continued to suffer a
number of nonwork-related medical disabilities, including the residual effects of
previous back surgeries, stenosis at certain points in the spine, degenerative
arthritis, peripheral neuropathy affecting the lower extremities, fibromyalgia, and
numerous other physical and mental disorders. Dr. Noble opined that objective
studies showed that Holtzman had fully recovered from the work-related injuries
and that her remaining impairment was due to chronic, progressive medical
conditions. On cross-examination, he acknowledged that an X-ray taken on
July 12, 2000 showed a misalignment of the discs at L2-3 but noted that this
misalignment had been documented at least as early as July 1997 and that the most
recent EMG showed no nerve compression that might produce pain.

The WCJ accepted the testimony of Dr. Oliveri as credible and as
more persuasive than that of Dr. Noble, and he concluded that Holtzman had met
her burden of proving that she suffered continuing disability because of her work-
related injuries. The WCJ granted Holtzman's reinstatement petition, and the
Board affirmed after concluding that Dr. Oliveri's testimony was competent
evidence to support the WCJ's finding that Holtzman's work injuries constituted a
substantial, contributing factor to her continuing disability. The Board rejected
Employer's arguments that the WCJ should have excluded Dr. Oliveri's deposition
as untimely and that the WCJ failed to issue a reasoned decision.1 Employer

1The Court's review in an administrative agency appeal is limited to determining whether
constitutional rights were violated, whether an error of law was committed, whether a required
(Footnote continued on next page...)
4

argues here that the WCJ and the Board erred in reinstating benefits because
Holtzman failed to meet her burden of proving that her work-related injuries were
a substantial, contributing factor to any continuing disability, and Employer points
out that Dr. Oliveri conceded that Holtzman suffers from multiple, nonwork-
related medical conditions and that those conditions contribute to her disability.

When a claimant's disability results from a combination of work- and
nonwork-related medical conditions, an employer remains liable for the claimant's
disability so long as the work-related medical condition is a substantial,
contributing cause of the disability. Martin v. Workers' Compensation Appeal
Board (Red Rose Transit Authority), 783 A.2d 384 (Pa. Cmwlth. 2001). In
evaluating a physician's testimony on the relative importance of multiple medical
conditions, the testimony must be weighed in its entirety; it is not necessary that
the physician state exactly that the work-related medical condition was a
"substantial, contributing cause" of the claimant's disability. Musiolowski v.
Workmen's Compensation Appeal Board (U.S. Steel Corp.), 536 A.2d 858 (Pa.
Cmwlth. 1988). In this case, Dr. Oliveri unequivocally and repeatedly stated that
severe disc disease at the L2-3 level, the area where Holtzman sustained a work-
related injury, remained a continuing source of disability. Deposition at pp. 12, 15,

(continued...)

practice or procedure of the administrative agency was not followed and whether the necessary
findings of fact are supported by substantial evidence in the record. Section 704 of the
Administrative Agency Law, 2 Pa. C.S. §704; Gunter v. Workers' Compensation Appeal Board
(City of Philadelphia), 573 Pa. 386, 825 A.2d 1236 (2003). In cases in which a claimant seeks
reinstatement of suspended benefits, the claimant must demonstrate that through no fault of her
own her earning power is once again impaired by her medical disability and that the disability
which gave rise to the original claim for benefits continues. Pieper v. Ametex-Thermox
Instruments Division, 526 Pa. 25, 584 A.2d 301 (1990); Trout v. Workers' Compensation Appeal
Board (Trans Continental Refrigerated), 836 A.2d 178 (Pa. Cmwlth. 2003).
5

20-21, 26-27, 29-30, 35. The WCJ credited this testimony and it is substantial
evidence supporting the conclusion that the work-related medical condition was a
substantial, contributing cause to Holtzman's continuing disability.2

Employer next argues that the WCJ should have excluded
Dr. Oliveri's deposition from evidence because it was not taken and submitted in a
timely manner. Employer cites Section 131.63(c) of the Board's regulations, which
provide as follows: "The deposition of a medical expert testifying for the moving
party shall be taken within 90 days of the date of the first hearing scheduled unless
the time is extended or shortened by the judge for good cause shown." 34 Pa.
Code §131.63(c). Section 131.63(f) provides: "If a party fails to abide by the time
limits established by this section for submitting evidence, the evidence will not be
admitted, relied upon or utilized in the proceedings or the judge's rulings." 34 Pa.
Code §131.63(f). The first hearing in this case was held on September 11, 2000;
Holtzman first testified on November 1, 2000; and Dr. Oliveri was deposed on
December 4, 2001. At the deposition Employer placed an objection on the record,
but the WCJ nonetheless relied on the deposition testimony in making a decision.

After reviewing the special rules applicable to these cases, the Court
cannot conclude that the WCJ committed an abuse of discretion sufficient to

2Employer properly cites Pokita v. Workmen's Compensation Appeal Board (U.S. Air),
639 A.2d 1310 (Pa. Cmwlth. 1994), and Chicoine v. Workmen's Compensation Appeal Board
(Transit Management Services), 633 A.2d 658 (Pa. Cmwlth. 1993), for the propositions that a
claimant must establish that the work-related injury is a substantial, contributing cause to the
continuing disability and that there must be medical testimony characterizing the injury as a
substantial, contributing cause. However, the medical testimony in those cases did not rise to the
level of Dr. Oliveri's testimony here. In Pokita the physician's opinion relied on by the WCJ
stated that the work-related injury was only a "minimal" contributing factor to the claimant's
disability. In Chicoine the medical expert declined to characterize pneumonia resulting from
work-related activity as a substantial contributing factor leading to the claimant's death.
6

exclude Dr. Oliveri's deposition and to reverse the Board's order. Employer did
not object to the untimeliness of the deposition until the date it was scheduled
despite the requirement for 10 days' prior notice of any objections to an oral
deposition. See 34 Pa. Code §131.65(a). Additionally, the special rules provide
that "[t]he judge may, for good cause, waive or modify a provision of this chapter
upon motion of a party, agreement of all parties or upon the judge's own motion."
34 Pa. Code §131.3(a). So long as the WCJ's decision to waive or modify a
procedural rule does not violate due process rights or otherwise unfairly prejudice
a party's presentation of its case, the Court will not find an abuse of discretion.3
Employer has averred no prejudice or violation of its due process rights, and the
Court consequently will not disturb the WCJ's exercise of his discretion.

Employer next argues that the WCJ erred in concluding that
Dr. Noble's testimony was equivocal. The issue of whether a physician's testimony
regarding a claimant's recovery is equivocal is a question of law and is subject to
plenary review. See Terek v. Workmen's Compensation Appeal Board (Somerset
Welding & Steel, Inc.), 542 Pa. 453, 668 A.2d 131 (1995); Stalworth v. Workers'
Compensation Appeal Board (County of Delaware), 815 A.2d 23 (Pa. Cmwlth.
2002). A medical expert's testimony is unequivocal if, after providing a proper
foundation, the expert states that he or she believes a certain set of facts to be true.

3See Atkins v. Workers' Compensation Appeal Board (Stapley in Germantown), 735 A.2d
196 (Pa. Cmwlth. 1999) (absent prejudice to claimant, no abuse of discretion in allowing
admission of deposition in violation of 90-day rule); Lathilleurie v. Workmen's Compensation
Appeal Board (CITGO), 660 A.2d 694 (Pa. Cmwlth. 1995) (allowing admission of surveillance
report, because opposing party had sufficient time to review the evidence); Nevin Trucking v.
Workmen's Compensation Appeal Board (Murdock), 667 A.2d 262 (Pa. Cmwlth. 1995)
(allowing submission into evidence of medical bills because bills were reasonable and necessary
for recovery when no due process violation or prejudice to opposing party).
7

Stalworth. Employer is correct that Dr. Noble unequivocally testified that in his
opinion Claimant was fully recovered and was no longer disabled from the work-
related injuries, and while the WCJ only found Dr. Noble's testimony to be
equivocal regarding his experience in performing lumbar surgery (Findings of Fact
45) and regarding Holtzman's mobility during the IME (Finding of Facts 47), the
fact remains that the WCJ credited Dr. Oliveri's testimony over Dr. Noble's
testimony, which was found to be unpersuasive.

Employer's last argument is that the WCJ failed to issue a reasoned
decision as required by Section 422(a) of the Workers' Compensation Act, Act of
June 2, 1915, P.L. 736, as amended, 77 P.S. §834; see Daniels v. Workers'
Compensation Appeal Board (Tristate Transport), 574 Pa. 61, 828 A.2d 1043
(2003). For purposes of Section 422(a), a reasoned decision is one that allows for
adequate review by the Board without further elucidation and allows effective
review by an appellate court under the applicable standards of review. Daniels;
Higgins v. Workers' Compensation Appeal Board (City of Philadelphia), 854 A.2d
1002 (Pa. Cmwlth. 2004). When the WCJ's credibility determinations cannot be
based upon a witness' demeanor, the WCJ must provide independent reasons for
accepting or rejecting competent testimony. Higgins. The WCJ here adequately
summarized the doctors' testimony, and in many of the findings summarizing that
testimony the WCJ stated his reasons for accepting or rejecting a particular opinion
(see e.g., Findings of Facts 18, 42). Viewed in its entirety, the Board concluded
that the WCJ's decision was sufficiently detailed for effective review and the Court
agrees with that conclusion. The Court accordingly affirms the Board's order.

DORIS A. SMITH-RIBNER, Judge
8

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

County of Lebanon and The PMA
:
Group,

:

Petitioners

:

:

v.

: No. 1315 C.D. 2004

:
Workers' Compensation Appeal Board :
(Holtzman),

:

Respondent

:

O R D E R

AND NOW, this 24th day of February, 2005, the Workers'
Compensation Appeal Board's order is hereby affirmed.

DORIS A. SMITH-RIBNER, Judge