IN THE COMMONWEALTH COURT OF PENNSYLVANIA

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1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA James Conace, : Petitioner : : v. : : Workers Compensation Appeal : Board (Armen Cadillac, Inc.), : Nos. 346 & 347 C.D Respondent : Submitted: September 26, 2014 BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI FILED: October 17, 2014 James Conace (Claimant) petitions for review of two orders of the Workers Compensation Appeal Board (Board) 1 affirming the decisions of a Workers Compensation Judge (WCJ) which denied Claimant s claim petitions because Claimant failed to satisfy his burden of proving that he sustained a workrelated injury in the course of his employment with Armen Cadillac, Inc. (Employer). For the reasons that follow, we affirm the Board. On April 12, 2010, Claimant filed a claim petition alleging that he sustained a work injury described as low back pain, numbness in both legs 1 By order dated May 5, 2014, this Court consolidated Claimant s petitions for review.

2 (Claim Petition I at 1), on August 5, 2009, while bending over and picking up boxes at Employer s facility. On the same date, Claimant filed a second claim petition alleging that he sustained a work injury described as low back pain radiating into legs, leg numbness, shortness of breath, COPD, chest pain (Claim Petition II at 1), on December 23, 2009, as a result of slipping on ice in Employer s lot. Employer filed answers denying the material allegations of the claim petitions and hearings were held before the WCJ. Before the WCJ, Claimant testified that he began working as a lot attendant for Employer on September 2, He explained that his job responsibilities included cleaning and detailing cars, cleaning the showroom and emptying trash each night into the dumpster. Claimant stated that on August 5, 2009, Patricia Mullin (Mullin), Employer s Office Manager, asked him to move boxes of records from one location to another so that they could be shredded. He testified that there were between 32 and 34 boxes, weighing at least 30 to 40 pounds each, which he loaded onto a handcart and pushed to the service department. He explained that while he was lifting the boxes, he felt a severe pain in his low back that radiated down to his left leg and caused numbness in his left foot. He stated that he reported the injury that day to Employer but continued working the rest of the day. He testified that he continued working his regular job after August 5, 2009, but that he had difficulty performing his job duties due to his back pain. Claimant further testified that he was taken to the hospital by ambulance on three occasions between August and November 2009, after experiencing shortness of breath, chest pain, dizziness, light-headedness and severe back pain while at work. He explained that he only noticed these symptoms when 2

3 his workload increased. With respect to the alleged December 23, 2009 work injury, Claimant explained that he slipped and fell on ice in Employer s lot during the course of his regular morning work duties and began to experience those same symptoms as a result. He testified that he informed Mullin of the incident and was ultimately transported to the hospital. He explained that after he was released from the hospital, he informed Employer that he could not return to his job due to his medical issues and did not return to work after December 23, Claimant admitted that he sustained a lower back injury in 1995 while working for a different employer. Finally, he testified that he told his supervisor, Jared Ferraro, on several occasions, that his job duties caused him difficulty with his low back. Bruce Barris, M.D. (Dr. Barris), who is board certified in internal medicine and treats patients who are undergoing rehabilitation, testified that he first examined Claimant on March 30, Based upon his treatment of Claimant and review of his medical records, including MRIs of Claimant s cervical and lumbar spine, Dr. Barris opined that Claimant had small disc herniations at C3-4, C4-5 and C6-7, which were secondary to the injuries sustained on December 23, 2009; and exacerbation of L3-4, L4-5 and L5-S1 disc herniations which were aggravated secondary to the December 23, 2009 work injury. He further opined that there was an onset of Claimant s symptoms following the work-related incident of August 5, He stated that Claimant continues to be medically disabled, but that he released him to return to sedentary work for 20 hours per week. Dr. Barris ultimately opined that Claimant could not return to his pre-injury job with Employer. 3

4 Patricia Mullin testified that she received a call from Employer s receptionist on December 23, 2009, informing her that Claimant was not feeling well. She stated that when she arrived at the reception area, Claimant was hunched over the couch complaining of shortness of breath, but did not mention anything to her about back pain or an accident. She also stated that Claimant did not say anything about experiencing back pain when he spoke to the ambulance personnel in the reception area that day. She explained that Claimant came back to work from the hospital later that day, but did not tell her that he had slipped on ice until the next day when he called her. Mullin further testified that she did not recall asking Claimant to move any boxes, and that she would not have asked Claimant to move boxes on August 5, 2009, because Employer s shredding project takes place once per year and is always done in January or February. She also stated that she never received a report that Claimant was injured while moving boxes. Jared Ferraro (Ferraro), Employer s Finance Manager and Claimant s direct supervisor on August 5, 2009, also testified that he did not recall Claimant being asked to move boxes or Claimant telling him that he hurt his back moving boxes on that date. He explained that Claimant had previously reported to him that he had high blood pressure, dizziness, shortness of breath and a pre-existing lower back problem, but that Claimant never told him that the performance of his duties at work was hurting his back. He testified that he asked Claimant to move mulch on one occasion, but Claimant did not complain of a back injury after performing that task. He explained that because he was Claimant s direct supervisor, he saw him multiple times throughout the day, and if an employee that he supervised 4

5 reported an injury to him, he would report this to Mullin so that the necessary paperwork could be completed. Christian Fras, M.D. (Dr. Fras), a board certified orthopedic surgeon who specializes in spine surgery, testified that he evaluated Claimant on September 24, 2010, at which time he also reviewed Claimant s medical records and obtained a history from Claimant. Dr. Fras testified that the x-rays and MRIs of Claimant s lumbar and cervical spine showed degenerative changes which were long-standing in nature rather than traumatic. Moreover, he testified that the records from Claimant s general practitioners revealed the presence of low back pain as far back as March 11, Dr. Fras also noted that while Claimant s various emergency room visits were recorded, no specific work injury was identified. Based upon his examination and review of Claimant s records, Dr. Fras found no evidence of a specific and discrete work injury to have occurred in association with Claimant s employment with Employer. The WCJ found the testimony of Mullin and Ferraro to be more credible than that of Claimant, finding significant that their testimony was mutually consistent, and accepted their testimony as fact where it conflicted with Claimant s. The WCJ also found the testimony of Dr. Fras to be more credible than that of Dr. Barris, finding significant that Dr. Fras is a board certified orthopedic surgeon who specializes in the care and treatment of spinal injuries while Dr. Barris is an internist. Based on those credibility determinations, the WCJ concluded that Claimant did not meet his burden of proving that he sustained a work-related injury in the course of his employment with Employer. 5

6 Accordingly, the WCJ dismissed Claimant s claim petitions. Claimant then appealed to the Board, which affirmed. This appeal by Claimant followed 2 in which he argues that several of the WCJ s factual findings are not supported by substantial evidence. In a proceeding on a claim petition, the claimant bears the burden of establishing a work-related injury rendering the claimant incapable of performing the time-of-injury job. Vista International Hotel v. Workers Compensation Appeal Board (Daniels), 742 A.2d 649, 654 (Pa. 2000). Here, the testimony of Employer s witnesses, which was found credible by the WCJ, 3 establishes that Claimant never reported a work-related low back injury to Employer as a result of the alleged August 5, 2009 incident. Claimant also conceded that he continued to perform his time-of-injury job after August 5, With respect to the December 23, 2009 incident, Employer s credible testimony established that Claimant said nothing about slipping on ice or experiencing back pain that day. Moreover, the testimony of Employer s medical expert, which the WCJ also found credible, establishes that Claimant did not suffer a traumatic injury, but merely had degenerative changes to his spine and had been suffering from low back pain since at least Such credible testimony constituted substantial evidence to support 2 Our review is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether errors of law were made, or whether constitutional rights were violated. Namani v. Workers Compensation Appeal Board (A. Duie Pyle), 32 A.3d 850, 854 n.2 (Pa. Cmwlth. 2011). 3 The WCJ s authority over questions of credibility, conflicting evidence and evidentiary weight is unquestioned. Bedford Somerset MHMR v. Workers Compensation Appeal Board (Turner), 51 A.3d 267, 272 (Pa. Cmwlth. 2012). The WCJ, as fact-finder, may accept or reject the testimony of any witness in whole or in part, and we are bound by the WCJ s credibility determinations. Id. 6

7 the WCJ s finding that Claimant did not suffer a work-related injury. Therefore, we find no error in the WCJ s conclusion that Claimant failed to meet his burden of proving that he sustained a work-related injury during the course of his employment. Accordingly, the orders of the Board are affirmed. DAN PELLEGRINI, President Judge 7

8 IN THE COMMONWEALTH COURT OF PENNSYLVANIA James Conace, : Petitioner : : v. : : Workers Compensation Appeal : Board (Armen Cadillac, Inc.), : Respondent : Nos. 346 & 347 C.D O R D E R AND NOW, this 17 th day of October, 2014, the orders of the Workers Compensation Appeal Board, dated February 6, 2014, at Nos. A and A , are affirmed. DAN PELLEGRINI, President Judge

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