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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joseph Mercandante,
:

:

Petitioner :

:

v.

: No. 2261 C.D. 2004

:
Workers' Compensation Appeal
: Submitted: February 4, 2005
Board (Morganrail, Inc. and ACE
:
Fire/Amerihealth Casualty Co.),
:

:

Respondent
:
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE JOSEPH F. McCLOSKEY, Senior Judge

OPINION NOT REPORTED
MEMORANDUM OPINION

BY JUDGE COHN JUBELIRER

FILED: April 12, 2005

Joseph Mercandante (Claimant) petitions for review of an order of the
Workers' Compensation Appeal Board (Board), which affirmed a decision of a
Workers' Compensation Judge, denying Claimant's claim petition for injuries
allegedly sustained to his low back, right groin and right testicle. Claimant argues
that the WCJ erred by disregarding substantial, competent evidence of a work-
related injury and continuing disability.

There are two general injuries--a lower back injury and a groin/ testicle
injury--that form the basis of Claimant's single claim petition. In this matter, the
WCJ made the following pertinent factual findings:

1.
On July 1, 2002, the Claimant, Joseph Mercadante [sic],
Jr., filed a Claim Petition and a Penalty Petition against the Morgan
Rail Corporation alleging that he suffered a work injury on May 28,
2002 while lifting a panel in the course and scope of his employment.

2.
Morgan Rail, through its workers' compensation carrier,
the Ace Insurance Company, denied [Claimant]'s claim, and the case
was litigated to conclusion.

3.
The twenty-seven (27) year-old Claimant worked as a
laborer for Morgan Rail. On May 28, 2002, he was picking up a panel
in the course of his employment when he developed pain in his groin
area.

4.
Following the incident, [Claimant] signed up, and started
receiving, unemployment compensation benefits at a rate of $444.00
per week. Approximately, two (2) months later, he filed this claim for
workers' compensation benefits.

5.
In support of his claim, [Claimant] has presented the
deposition testimony of William Clearfield, D.O.. Dr. Clearfield was
familiar with [Claimant] because he had treated him previously for
low back pain and groin pain. Following a physical examination, Dr.
Clearfield diagnosed that [Claimant] had suffered a left inguinal
hernia and a left groin strain. He referred him to Dan Kopen, M.D.
for a surgical evaluation. In the interim, Dr. Clearfield prescribed
non-steroidal anti-inflammatories for the Claimant.

6.
As the Claimant's treatment progressed, Dr. Clearfield
refined his diagnosis of the Claimant's condition to epididymitis,
which is an inflammation of the tube that runs from the testicle to the
urethra. Dr. Kopen, the surgeon, also concluded that the Claimant did
not require surgery. As a result, the Claimant was placed in physical
therapy and given an epidural nerve block.

2

7.
Further along in the Claimant's treatment, Dr. Clearfield
referred the Claimant to Dr. Nakkache, a neurosurgeon, who had an
MRI scan of the Claimant's spine taken on June 26, 2002 that showed
a moderate disc protrusion or herniation at the L4-5 level of the
Claimant's spine. Dr. Nakkache recommended further physical
therapy and epidural steroids.

8.
At his deposition on May 29, 2003, Dr. Clearfield
rendered an opinion that [Claimant] had actually suffered a mild to
moderate disc herniation at the L4-5 level in addition to the
epididymitis as a result of the work injury he suffered on May 28,
2002. Dr. Clearfield opined that the foregoing conditions would
prevent the Claimant from returning to his customary employment as
a laborer with Morgan Rail.

9.
In defense of the Claimant's claim, the employer and its
carrier had [Claimant] examined and evaluated by Eugene Chiavacci,
M.D., an orthopedic surgeon, on November 19, 2002. The History
obtained by Dr. Chiavacci showed that the Claimant was lifting and
pulling on May 28, 2002, when he felt a bulge and a pain in his right
groin area. Thereafter, the Claimant went out of work and was treated
conservatively with physical therapy, epidural injections, and
medications. On physical examination, the Claimant did not appear to
be in any acute distress, although he had some diffuse tenderness in
his low back on palpation. There was no active spasm, and his range
of motion was functional[;] however, he had some tenderness in his
right groin on palpation. The Claimant's motor strength was normal,
and his neurologic and vascular examinations were normal.

10. Following his examination, Dr. Chiavacci opined that
[Claimant] suffered from epididymitis that was causing his groin pain,
and not a work-related trauma. He also opined that because of the
Claimant's long-standing groin pain and chronic back pain, he should
not return to heavy work, but that he would be capable of sedentary
employment.

11. At the close of the case, the Claimant presented
additional testimony on August 29, 2003, explaining that he suffered a
work injury in June of 2001, and was never free of back pain or
testicular pain from that time, but he was able to deal with the pain

3

and because he liked his job and wanted to work, he continued in his
employment with Morgan Rail until the event of May 28, 2002.

12. Based upon the testimony presented, we find that the
Claimant has low back pain, right groin pain, and testicle pain. We do
not find that these problems are work-related, however. As a result,
he has been seen by Dr. Clearfield, Dr. Nakkache, a neurosurgeon, Dr.
Kopen, a general surgeon, and a urologist, Dr. Calise. At the request
of the employer and its carrier, he has also been seen and evaluated by
Dr. Eugene Chiavacci, an orthopedic surgeon. All of the foregoing
physicians have concluded that the Claimant has a deteriorating
condition in his back and that he has a urological condition known as
epididymitis, which is an inflammation. Although the Claimant and
his physician believe that the Claimant's problems began in 2001
when he first experienced pain at work, the Claimant was able to
return to work and work without difficulty until May 28, 2002.
Thereafter, the Claimant was seen by various physicians and
surgeons, but he has not undergone surgery for any type of traumatic
injury to his back or his groin area[;] therefore, we are most
persuaded by Dr. Chiavacci's opinion that the Claimant's problems
are not the result of his employment, but rather are insidious in origin
and that the Claimant should consult a urologist and engage in lighter
work that would be more conducive to his degenerative conditions.

(WCJ Findings of Fact (FOF) ¶¶ 1-12)(emphasis added). Significantly, although
the WCJ found Dr. Chiavacci more persuasive, he did not find Dr. Clearfield either
"credible" or "not credible."

Based on these findings, the WCJ concluded that "the most logical and
credible medical evidence shows that the Claimant did not sustain a work injury on
May 28, 2002 ..."; thus, he failed to meet his burden of proof to establish a work-
related injury. (WCJ Conclusion of Law (COL) ¶¶ 2, 3.) Claimant appealed that
decision to the Board, which subsequently affirmed. Claimant now appeals to this

4

Court and, on appeal, raises one primary issue: whether the WCJ's decision was
based on substantial evidence.1

In every claim petition case, the burden is on the claimant to establish all
elements necessary to support an award. Ruhl v. Workmen's Compensation
Appeal Bd. (Mac-It Parts, Inc.), 611 A.2d 327, 329 (Pa. Cmwlth. 1992), petition
for allowance of appeal denied, 533 Pa. 620, 619 A.2d 701 (1993). Therefore,
before a WCJ, a claimant must establish through the production of evidence,
whether testimonial or documentary, that: 1) he sustained a work-related injury;
and 2) the work-related injury caused his disability. Id. Issues regarding the
weight given to the evidence and the credibility of medical experts are within the
sole province of the WCJ. Lombardo v. Workers' Compensation Appeal Bd.
(Topps Company, Inc.), 698 A.2d 1378, 1381 (Pa. Cmwlth. 1997). As such, the
WCJ, as fact finder, is free to accept or reject the testimony of any witness in
whole or in part. Id. This Court's standard of review is limited to a determination
of whether there has been a violation of constitutional rights, whether an error of
law has been committed, or whether all necessary findings of fact are supported by
substantial evidence. Guthrie v. Workers' Compensation Appeal Board (Keystone
Coal Company), 767 A.2d 634, 636 n.4 (Pa. Cmwlth. 2001). Substantial evidence
is defined as such relevant evidence as a reasonable person might accept as

1 Claimant also asks this Court to reverse the decision of the WCJ, which dismissed his
Petition for Penalties. While the WCJ has discretion to impose a penalty for a violation of the
Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1
1041.4, 2501-2626, such imposition is not required even if there is an apparent violation of the
Act. Candito v. Workers' Compensation Appeal Bd. (City of Philadelphia), 785 A.2d 1106,
1108 (Pa. Cmwlth. 2001). Here, the WCJ did not find a violation and, thus, properly did not
impose a penalty.

5

adequate to support a conclusion. Hoffmaster v. Workers' Compensation Appeal
Board (Senco Products, Inc.), 721 A.2d 1152 (Pa. Cmwlth. 1998).

Upon review of the record in this appeal, we conclude that there was
substantial evidence to support the WCJ's finding that Claimant did not have a
work-related back injury; however, there are insufficient findings for us to affirm
the WCJ's determination that the groin injury was not a disabling work-related
injury.

Before the WCJ, Claimant produced the testimony of Dr. Clearfield, a
specialist in family practice and acupuncture, who had treated Claimant since his
June 2001 injury(s). (Clearfield N.T. at 7). In the course of treating Claimant, Dr.
Clearfield relied upon the reports of several medical specialists: Dr. Dan Kopen
(for surgical evaluation); Dr. Calise (a urologist, who evaluated the right testicle
and groin for epididymitis); Dr. Nakkache (a neurosurgeon, who performed an
updated MRI scan); and, Dr. Dong-Jooh Oh (an anesthesiologist/pain specialist,
who administered epidermals for Claimant.) Based on his examinations of
Claimant and the reports of the other doctors, Dr. Clearfield opined that both the
groin injury (epididymitis),2 and the back injury (disc herniation), were work-
related injuries. (Clearfield Dep. at 17, 21.)

2 In opining on the cause of Claimant's epididymitis, Dr. Clearfield stated that Claimant,
on May 28, 2002, aggravated a previous epididymal incident, which occurred in June 2001.
(Clearfield Dep. at 17.)

6

In opposition to Claimant's claim petition, Employer and its insurance
carrier produced the deposition testimony of Dr. Eugene Chiavacci, who is board
certified in orthopedic surgery. In forming his expert medical opinions, Dr.
Chiavacci3 relied upon both his examination4 of Claimant and the same medical
reports relied upon by Dr. Clearfield.5 It was Doctor Chiavacci's expert medical
opinion that Claimant had a pre-May 2002 back injury and preexisting
degenerative disease in the L4-5 disc. (Chiavacci Dep. at 13.) In addition, he
opined that, upon examination, Claimant was not in acute distress. (Chiavacci
Dep. at 9, 13.) Dr. Chiavacci further stated that Claimant's major complaint
revolved around Claimant's groin pain, which Dr. Chiavacci believed derived from
epididymitis that was not related to any back injury. (Chiavacci Dep. at 11-13.)
Moreover, Dr. Chiavacci opined that Claimant could return to a light-duty job.
(Chiavacci Dep. at 14.)

The WCJ found Dr. Chiavacci's testimony, that Claimant's back injury was
not work-related, and instead stemmed from a preexisting chronic disc and
degenerative disease, more persuasive than Dr. Clearfield's testimony. This
finding is supported by substantial evidence of record: in particular, Dr.
Chiavacci's examination of Claimant, where he reported Claimant as not being in

3 Dr. Chiavacci noted that he did not review any medical records relating to Claimant's
June 2001 lifting incident. (Chiavacci Dep. at 18.)
4 On cross-examination, Dr. Chiavacci testified that he worked in conjunction with a
physical therapist, Paul McCarey, who performed a physical examination of Claimant prior to
Dr. Chiavacci seeing him. (Chiavacci Dep. at 26.)
5 While Dr. Chiavacci did rely upon Dr. Clearfield's medical records and the reports of
the other specialists, he, admittedly, did not review the deposition testimony of Dr. Clearfield.
(Clearfield N.T. at 17.)

7

any acute distress, and the reports of the specialists, on which he relied. Moreover,
as found by the WCJ, Claimant did, in fact, return to work after his June 2001
injury (Mercandante Dep. at 6-7) and did not undergo any type of surgery for a
traumatic injury. The WCJ acted properly within his discretion by accepting Dr.
Chiavacci's analysis of the medical evidence over that of Dr. Clearfield. This
weighing of evidence and credibility determination is within the sole province of
the WCJ and cannot be overturned by this Court. Lombardo. Therefore, we must
affirm the WCJ's determination that Claimant failed to meet his burden of
establishing that he sustained a work-related, disabling, injury to his back.

However, Dr. Chiavacci's testimony does not support the WCJ's findings
with regard to Claimant's groin injury. On cross-examination, the following
exchange occurred between Claimant's counsel and Dr. Chiavacci:

Q. Can an episode of heavy lifting cause an injury to the
epididymis [sic]?

A.
I'm not a urologic specialist, but to my knowledge of that area I
do feel that that is a possibility.

Q
And if someone sustained an injury to the epididymis [sic] in
June of 2001 could that result in the chronic thickening over time?

A.
Again, not being a urologic specialist it's speculative, but I
would say possibly yes.

Q.
Is it fair to say, Doctor, that you limited your opinions in this
case to the claimant's low back since that's your area of expertise?

A.
That is correct.

8

(Chiavacci Dep. at 21-22)(emphasis added). Therefore, Dr. Chiavacci expressly
limited his expert opinion to Claimant's back injuries and did not offer an expert
opinion on the injury(s) sustained to Claimant's groin. Furthermore, the WCJ did
not specifically determine whether Claimant's medical expert, Dr. Clearfield, was
credible. Rather, the WCJ stated only that he was "most persuaded by Dr.
Chiavacci's opinion that the Claimant's problems are not the result of his
employment, but rather are insidious in origin...." (WCJ FOF ¶ 12)(emphasis
added). Because the WCJ did not determine whether Claimant's medical expert
was credible, we are unable to determine whether Claimant sustained his burden of
proof with regard to the groin injury.

This Court's opinion in Manners v. Workmen's Compensation Appeal Bd.
(McDonald's Restaurant), 688 A.2d 786 (Pa. Cmwlth. 1997), is instructive on the
appropriate remedy in such a situation. In Manners, the WCJ found the employer's
medical expert to be credible, and denied the claimant's claim petition without
making a credibility determination regarding claimant's medical expert. The
Board affirmed the WCJ but, on appeal, this Court determined that the opinion of
the employer's medical expert was equivocal, and so not legally competent.
Because there was no credibility determination regarding the claimant's medical
expert, we vacated the WCJ's order and remanded the case to the WCJ to make the
required factual determinations regarding the credibility of the claimant's medical
expert. We will order the same remedy here.

Accordingly, we affirm the WCJ's determination, as upheld by the Board,
that Claimant's back injuries were not work-related. However, we vacate the

9

WCJ's determination that the groin injury was not work-related and remand this
case for a determination as to whether Claimant sustained his burden of persuasion
that the injury to his groin was a work-related, disabling injury.

___ ______________________________

RENÉE
COHN
JUBELIRER,
Judge

10

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joseph Mercandante,
:

:

Petitioner :

:

v.

: No. 2261 C.D. 2004

:
Workers' Compensation Appeal
:
Board (Morganrail, Inc. and ACE
:
Fire/Amerihealth Casualty Co.),
:

:

Respondent
:

O R D E R

NOW, April 12, 2005, we affirm, in part, and vacate, in part, the Order of
the Workers' Compensation Appeal Board in the above-captioned matter and
remand to the Board with instructions to remand to the Workers' Compensation
Judge to make further findings of fact and render a new adjudication, based on the
presently existing record, consistent with this opinion.

Jurisdiction
relinquished.

___ ______________________________

RENÉE
COHN
JUBELIRER,
Judge