IN THE COMMONWEALTH COURT OF PENNSYLVANIA O R D E R. Costello s application for clarification of this Court s Order dated April 21, 2015,

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1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Adam Costello, : Petitioner : : v. : : Workers Compensation Appeal : Board (City of Philadelphia), : Respondent : No C.D O R D E R AND NOW, this 10 th day of June, 2015, upon consideration of Adam Costello s application for clarification of this Court s Order dated April 21, 2015, the same is hereby granted. The words Penalty Petition in the Order shall be substituted with request for unreasonable contest attorney s fees. This Court having considered respondent s application and amended application for reargument/reconsideration and petitioner s response thereto, the application is denied. DAN PELLEGRINI, President Judge

2 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Adam Costello, : Petitioner : : v. : : Workers Compensation Appeal : Board (City of Philadelphia), : No C.D Respondent : Submitted: March 27, 2015 BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI FILED: April 21, 2015 Adam Costello (Claimant) petitions for review of an order of the Workers Compensation Appeal Board (Board) affirming the Workers Compensation Judge s (WCJ) decision granting the City of Philadelphia s (Employer) Petition to Terminate Compensation Benefits due to Claimant s full recovery and denying Claimant s Petition to Review Compensation Benefits and Petition for Penalties. For the following reasons, we reverse in part, affirm in part, vacate in part and remand for further proceedings.

3 I. On March 2, 2001, Claimant, a corrections officer, was injured when he attempted to pull open a jammed cell gate. Employer issued a Notice of Compensation Payable under the Workers Compensation Act (Act), 1 recognizing Claimant s injury as a left shoulder sprain. (6/14/01 Corrected Notice of Compensation Payable.) Claimant returned to work full duty on August 3, 2001, but reinjured his left shoulder on the same date and did not return to work again until October Nonetheless, Employer issued a Notice of Suspension or Modification, indicating that Claimant s compensation benefits were suspended as of August 6, 2001, after which Claimant filed a Claim Petition, a Penalty Petition and a Utilization Review Petition. Claimant continued to receive Injured on Duty benefits in lieu of workers compensation benefits until October 1, 2001, when Employer unilaterally determined that Claimant s injury was no longer workrelated but was instead due to a March 2000 motor-vehicle accident. 2 Following hearings, WCJ Patricia Bachman granted Claimant s Claim Petition, amended to a Petition for Reinstatement, adopting as facts in this case the opinion of Claimant s treating physician, Geoffrey W. Temple, D.O. (Dr. Temple), who is board-certified in family medicine and opined that Claimant sustained a work-related internal derangement of the left shoulder. (7/31/2003 Determination, 20, 25.) In so ruling, WCJ Bachman noted that during 1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S , Claimant attempted to return to work a second time in October 2001, but he was unable to continue working due to shoulder pain. 2

4 Claimant s course of treatment with Dr. Temple, Dr. Temple reviewed pre- and post-surgery Magnetic Resonance Imaging (MRI) reports and testified that Claimant s pre-surgery MRI reported a tear in the posterior glenoid labrum and rotator cuff tendonosis. The second MRI, conducted on August 23, 2001, showed no change in the labral tear. (Id. 21.) WCJ Bachman credited Dr. Temple s opinion because it was substantiated by Claimant s testimony, the residual effects of his injury, and the objective diagnostic study. (Id. 26.) Claimant s Penalty and Utilization Review Petitions were likewise granted. On September 16, 2009, Employer s medical expert, David L. Rubenstein, M.D. (Dr. Rubenstein), a board-certified orthopedic surgeon, performed an independent medical evaluation (IME) of Claimant, determining that he had fully recovered and could return to work without restriction. Based upon Dr. Rubenstein s IME and finding of full recovery, Employer filed a Petition to Terminate Compensation Benefits. 3 Subsequently, Claimant filed a Petition to Review Compensation Benefits, seeking to add post-traumatic stress disorder, 3 Section 413 of the Act provides that a claimant s benefits may be suspended, modified or terminated based on a change in his disability: 77 P.S 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. 3

5 depression and psychological injuries to the defined work injury and later moved to add left-shoulder adhesive capsulitis, impingement syndrome and chronic-pain syndrome. II. In support of its Termination Petition, Employer presented the deposition testimony of Dr. Rubenstein, who stated that in forming his expert opinion, he reviewed Claimant s medical records, took his history and performed a physical examination. He testified that he reviewed a 1997 medical questionnaire noting Claimant s history of left shoulder injury, specifically a torn left rotator cuff, which was aggravated by a motor-vehicle accident in Plain x-rays following Claimant s work accident were normal, but a March 2001 MRI study was interpreted as demonstrating a tear of Claimant s posterior labrum with an associated ganglion cyst. Still, the MRI did not indicate any bone marrow abnormality in the socket or ball, the glenoid or the humeral head, which would tend to show acute trauma to the bone. Dr. Rubenstein further testified that Gary Muller, M.D. (Dr. Muller), an orthopedic surgeon whom Claimant consulted in March 2001, found that Claimant s pain was disproportionate to and did not match the mechanism of his injury. He explained that in Dr. Muller s re-evaluation in April 2001, he noted that Claimant was leaving therapy and using his arm without issue. A functional capacity evaluation was performed in May 2001 showing evidence of symptom magnification and cogwheeling. 4 4 Dr. Rubenstein described cogwheeling as follows: (Footnote continued on next page ) Nonetheless, Dr. Muller performed arthroscopic 4

6 surgery in July 2001, the post-operative diagnosis of which determined that Claimant s shoulder was normal, with a normal rotator cuff and with all areas intact. A repeat MRI in August 2001 was consistent with the findings of the original MRI. While Claimant denied that he previously tore his rotator cuff, he did admit to a prior shoulder injury as a teenager. Dr. Rubenstein s physical examination revealed full range of motion in Claimant s neck with symmetrical bending and no evidence of abnormalities. Claimant s left shoulder did not show atrophy or fullness in the deltopectoral area but demonstrated an active range of motion of 40 degrees of forward flexion and 30 degrees of abduction, a very, very diminished range of motion, without a (continued ) You ask an individual to elevate [his] arm against resistance. And even if somebody can only elevate 30 degrees, that s enough. At that point, you apply resistance. And if the arm jerks for a split second as if it s strong and then becomes weak, and then jerks, again, as if it s strong and then becomes weak, it s called cogwheeling. And the significance of that is the person is demonstrating at the moment [he] jerk[s] [his] arm, the rotator strength is there. It s intact. And then for a split second it become[s] weak, and then it become[s] strong, again. The moment that that person shows that they [sic] have the strength, the rotator cuff is intact. And the theory is that people who are cogwheeling are purposely trying to demonstrate that they re actually weak. (1/21/11 Deposition of David Lloyd Rubenstein, M.D., at ) 5

7 specific end point. (1/21/11 Deposition of David Lloyd Rubenstein, M.D., at 19.) Dr. Rubenstein further explained that Claimant had full, external rotation with his arms at his side but very limited internal rotation, meaning that Claimant could barely reach to his back pocket, a very unusual phenomenon which usually presents only in patients with extremely deteriorating shoulders with no significant external rotation. He stated that such a symptom does not make sense in this case because Claimant had full, external rotation. Dr. Rubenstein administered rotator-cuff strength testing during which Claimant showed cogwheeling, but Claimant had no instability with respect to loading, shift and sulcus testing, maneuvers specifically designed to measure whether the shoulder is loose or unstable. Claimant did not localize pain with posterior maneuvers but did indicate a burning sensation. He could not perform a lift-off test for subscapularis but had a negative belly-press test. Despite what Dr. Rubenstein described as Claimant s poor effort at a wall push-up test, Claimant did not demonstrate scapular winging, results which Dr. Rubenstein found inconsistent. Finally, Claimant tested negative to the Adson, Wright and Roos testing, ruling out thoracic-outlet syndrome. Dr. Rubenstein was surprised by Claimant s lack of muscle atrophy in light of his poor muscle function. With regard to the March 2001 MRI, Dr. Rubenstein opined that Claimant could not have developed cystic changes in a matter of days or even weeks and, therefore, the indications clearly reflected old findings. He further explained that even if Claimant did have a cyst, there was no diagnosis confirming that his symptoms were medically related to it. 6

8 In conclusion, Dr. Rubenstein opined that Claimant did sustain a work related injury on 3/2/01 when he pulled a jammed cell gate, and that would be consistent with a shoulder strain, that the initial MRI revealed a pre-existing finding that did not correlate with that injury but rather reflected a separate, nonrelated issue, and that Claimant magnified his symptoms. (Id. at 37.) Employer s counsel then pursued the following line of questioning: Q. Doctor, I d like to ask you to assume that back in 2001 the City of Philadelphia did accept the March 2, 2001 work injury as a work related injury describing it as a left shoulder strain. And subsequently, there was further litigation and a Decision by Workers Compensation Judge, Patricia Bachman, where in [sic] she did find that as of back in the Fall of 2001, she found that [Claimant] still suffered from that work injury. And she accepted as credible the testimony of Dr. Temple who testified, and his diagnosis for [Claimant] at that time was internal derangement of the left shoulder. Assuming that to be true, but again, based on the information I ve already asked you about, your examination, your review of records, the history you took from [Claimant], in addition to any observations you made of him prior to the formal physical examination, do you have an opinion within a reasonable degree of medical certainty as to whether or not [Claimant] has fully recovered from his March 2, 2001 work injury as of September 16, 2009, eight and a half years later? (Id. at ) 7

9 Over Claimant s counsel s objection, 5 Dr. Rubenstein responded that internal derangement is a non-specific term which could refer to a fracture, dislocation, rotator-cuff tear or a sprain and strain pattern. He continued: So, knowing that there is nothing in the glenohumeral joint that was internally deranged in the actual joint, we can only assume that the internal derangement would have to encompass the sprain and strain pain associated with the sprain and strain pattern. Given that information, it s pretty clear that [Claimant] is fully recovered. There is no indication of any pathology of the shoulder that has been documented that s causing the symptoms. And, again, it is very clear that the labral pathology on the MRI was present prior to this particular injury and had no correlation and was producing no symptoms subsequent to this particular injury. (Id. at ) Similarly, Dr. Rubenstein testified over the same objection that Claimant can return to any and all activities without restriction and requires no further medical treatment. At the commencement of cross-examination, Claimant s counsel objected generally to the deposition, noting that although the date was reserved on his calendar, he received actual notice of the deposition only the day prior. He 5 Counsel objected on the basis that Dr. Rubenstein s expert report failed to address the work injury as being anything other than a strain and denied the existence of a labral tear. As such, counsel claimed the hypothetical question lacked a proper foundation because it was outside the scope of Dr. Rubenstein s expert report. 8

10 further objected because Dr. Rubenstein, who maintained an electronic copy of his file rather than a hard copy, did not bring a copy of the file with him and could not access it during the examination. On cross-examination, Dr. Rubenstein explained that his opinion was premised upon the fact that Claimant did not sustain a labral tear in his shoulder but that even if he did, his symptoms did not correlate with the tear observed on the MRI as an incidental finding, which was not visualized during a subsequent arthroscopy, explaining that the labral tear was an incidental finding from the MRI study. In opposition to Claimant s Review Petition, Employer also presented the testimony of Gladys Fenichel, M.D. (Dr. Fenichel), a board-certified psychiatrist who examined Claimant in July 2011 after reviewing his medical records. During her discussion with Claimant, Claimant described his mood as angry, sad, and miserable. (10/5/11 Deposition of Gladys Fenichel, M.D., at 29.) Claimant also reported trouble sleeping, decreased concentration, anxiety attacks, increased anger, fighting with his wife and weight loss due to his constant pain. He advised that he cannot engage in physical activities with his children due to his limitations and feels worthless because he has lost ten years of the prime time of his life. Nonetheless, Dr. Fenichel found that Claimant s affect did not show signs of anger, sadness, or anxiety, meaning there s been a lack of congruence between how he said he felt and how he presented, and his affect was in full range 9

11 which means he smiled with things worth smiling about, and he did not appear sad or anxious. (Id. at 36.) In conclusion, she opined that Claimant was a person who complains about pain, and that he does not have a separate and distinct condition of depression or anxiety, but he has pain problems. (Id. at 37.) She rejected Claimant s notion that he suffered from a post-traumatic stress disorder or an anxiety disorder, finding instead that he suffered chronic-pain syndrome, as evidenced by his description of all of this condition s factors as enumerated in the American Medical Association s Guides to the Evaluation of Permanent Impairment (Sixth Edition). Regardless, she stated that his pain complaints could not be linked to any particular event. As such, she rejected the contention that Claimant suffered from major depressive disorder because Claimant failed to show signs of sadness. Although she recognized Claimant s pre-existing problems with pain, she denied that he had a specific psychiatric diagnosis of depression or anxiety. In support of his Review Petition, Claimant presented the deposition testimony of Dr. Temple, who stated that treating musculoskeletal and neurological injuries comprises about 20 percent of his family-medicine practice. He testified that he has been treating Claimant for approximately 12 years and provided a history of the treatment Claimant underwent with regard to his work injury. He explained that after the incident, Claimant initially was treated by performing home exercises and using an anti-inflammatory medication to reduce his gastroesophageal reflux but still had reduced motion and ongoing pain. The pain persisted through follow-up exams, and Claimant was provided hydrocodone. Dr. Temple referred Claimant to physical therapy with Sylvia Lamont, D.C., a 10

12 chiropractor with an adjunctive license in physical therapy. When Claimant s pain still did not subside, Dr. Temple recommended arthroscopic surgery to address Claimant s ongoing symptoms and abnormal physical findings. Dr. Temple referred Claimant to several orthopedic specialists, including Mark Avart, D.O., Maxwell Stepanuk, D.O., and Allen Cooper, M.D., all of whom recommended an additional diagnostic and therapeutic arthroscopy. Dr. Temple also referred Claimant to Psychologist Sherri Landes, Ph.D. (Dr. Landes) to address Claimant s emotional issues and provided Claimant with Xylocaine injections to reduce pain in the left trapezius muscle. Specifically, Dr. Temple stated that as a result of Claimant s work injury, he questioned his self-worth, dealt with chronic pain and experienced relationship problems with his wife due to financial issues arising from his inability to work. Dr. Temple further testified that he is involved in managing Claimant s medical health to the extent he prescribes medication for him and relies upon the diagnoses of Dr. Landes in treating Claimant. Dr. Temple concluded: My opinion is that based on the lack of prior history of such a diagnosis and based on [Claimant] s description of what he felt was causing his depression and based in part upon the report of Dr. Landes, I concluded and continue to feel today that his diagnosis of depression is related to the work injury that occurred on March 2, (2/25/11 Deposition of Geoffrey W. Temple, D.O., at ) Additionally, he opined that Claimant suffers from chronic-pain syndrome secondary to his work 11

13 injury and that there s a probability that Claimant suffers a degree of adhesive capsulitis and impingement syndrome. 6 Regarding Dr. Rubenstein s opinion that Claimant made a full recovery, Dr. Temple disagreed, citing his serial treatment of Claimant as well as a 2009 MRI scan he ordered revealing localized fluid collection measuring eight millimeters in thickness along the left shoulder joint. Dr. Temple further concluded that Claimant requires left shoulder arthroscopic surgery and may also require rehabilitative therapy to restore Claimant s regular function, and that in any event, he is unable to return to work as a corrections officer. He denied that Claimant was malingering, stating that he never made such an observation and none of the specialists to whom he referred Claimant have reported such conduct. He explained that Claimant did not suffer muscle atrophy because he underwent physical therapy. During cross-examination, Dr. Temple conceded that it was possible but improbable that Claimant would develop the ganglion cyst displayed on the March 2001 MRI report within six days of his work injury. He further acknowledged that the 2009 MRI was interpreted as most likely including a ganglion cyst which could simulate a rotator cuff tear but does not specifically diagnose a tear. Dr. Temple agreed that Dr. Muller found only a normal shoulder during his arthroscopic scope, but Dr. Temple emphasized that such a diagnosis 6 Dr. Temple defined adhesive capsulitis as buildup or advance of scar tissue which would further restrict [Claimant s] shoulder causing greater dysfunction and more pain. (2/25/11 Deposition of Geoffrey W. Temple, D.O., at ) 12

14 was inconsistent with the MRIs indicating a ganglion cyst and, therefore, that Dr. Muller may have overlooked other findings. 7 Based on the evidence presented, the WCJ found that Employer satisfied its burden of proof with regard to its Termination Petition and that Claimant failed to meet his burden of proof with regard to his Review Petition. For these reasons, the WCJ further determined that Employer demonstrated a reasonable contest and denied Claimant s Penalty Petition. Crediting the testimony of Employer s experts, the WCJ found that Claimant recovered from his workrelated injury as of September 16, 2009, the date of Claimant s IME with Dr. Rubenstein. The WCJ noted: Dr. Rubenstein was specifically asked to assume the presence of all of the Claimant s accepted injuries and he concluded by issuing an unequivocal opinion of full recovery. Despite the Claimant s arguments to the contrary, such an opinion is legally competent.... Moreover, this Judge fully accepts Dr. Rubenstein s opinion, as an orthopedic specialist, that an internal derangement is a nonspecific medical term, which does not necessarily include a labral tear of the shoulder. More telling, WCJ Bachman in her prior Decision did not expand the Claimant s injury to expressly include a labral tear, but rather added the general diagnosis of an internal derangement. (WCJ 2/8/13 Determination, 13.) 7 Additionally, Claimant testified on his own behalf and presented the testimony of Nancy A. Rapoport, BS, RN-BC. Because this testimony is not the subject of the instant appeal, it will not be set forth at length. 13

15 Further, the WCJ overruled Claimant s counsel s objections regarding Dr. Rubenstein s deposition, noting that as per Section 422(a) of the Act, 8 a WCJ is not bound by the technical rules of evidence in conducting hearings and investigations. The WCJ held that the timing of and records made available for the deposition bear upon the weight of the evidence rather than its admissibility, and that despite any timing issues, counsel conducted a competent cross-examination. With regard to Claimant s Review Petition, the WCJ credited Dr. Rubenstein s and Dr. Fenichel s testimony while rejecting Dr. Temple s testimony to the contrary. In making this credibility determination, the WCJ emphasized that 8 Section 422(a) of the Act provides: Neither the board nor any of its members nor any workers compensation judge shall be bound by the common law or statutory rules of evidence in conducting any hearing or investigation, but all findings of fact shall be based upon sufficient competent evidence to justify same. 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

16 Dr. Temple s opinions were largely based upon Claimant s subjective complaints and exceeded the scope of his expertise in family medicine insofar as he provided mental-health opinions. III. Claimant appealed to the Board, arguing that Dr. Rubenstein s opinion was incompetent because he relied on previously discredited medical evidence barred by collateral estoppel and res judicata. In rejecting that claim, the Board reasoned that the controlling issue in adjudicating Employer s Termination Petition whether Claimant was fully recovered differs from the controlling issues before the WCJ in 2003 in adjudicating Claimant s Reinstatement Petition, Penalty Petition and Utilization Review Petition. The Board continued, To the extent Dr. Rubenstein s opinion was based on previously rejected medical opinions as contained in his review of records, a medical expert s opinion may be based on inadmissible evidence and hypothetical questions. (7/30/14 Board Opinion, at 9.) Regarding Claimant s contention that Dr. Rubenstein s deposition should have been precluded because timely notice of it was not served, the Board explained that the taking of depositions is governed by 34 Pa. Code , and that it is within a WCJ s discretion to waive compliance with these rules. Noting that the WCJ found that Claimant was not prejudiced by this failure, the Board declined to find an abuse of discretion. Additionally, Claimant contended that Dr. Fenichel should have been precluded from examining Claimant seven months after Claimant s expert s examination and that her testimony should have been precluded under 34 Pa. Code (g), but the 15

17 Board determined that Claimant did not preserve this objection and, therefore waived it as per 34 Pa. Code (b). 9 With respect to Claimant s argument that the WCJ erred in denying his Review Petition, the Board explained that the WCJ has the power to assess credibility and evidentiary weight and was free to accept the testimony of Drs. Rubenstein and Fenichel while rejecting Dr. Temple s testimony as inconsistent and outside the scope of his expertise. IV. A. On appeal, 10 Claimant raises the same issues addressed below. Regarding Claimant s contention that Dr. Rubenstein s opinion is incompetent because he assumed an incorrect description of Claimant s work injury, we agree. 9 Regarding the admissibility of oral depositions, the Special Rules of Administrative Practice and Procedure Before Workers Compensation Judges provides: 34 Pa. Code (b). Objections shall be made and the basis for the objections stated at the time of the taking of the depositions. Only objections which are identified in a separate writing, introduced prior to the close of the evidentiary record, as close of the record is specified in (c) (e) (relating to briefs, findings of fact and close of record), and stating the specific nature of the objections and the pages where they appear in the deposition or the exhibits to which they refer will be preserved for ruling. Objections not so preserved are waived. 10 Our review of a decision of the Board is limited to determining whether errors or law were made, constitutional rights were violated, and whether necessary findings of fact are supported by substantial evidence. Ward v. Workers Compensation Appeal Board (City of Philadelphia), 966 A.2d 1159, 1162 n.4 (Pa. Cmwlth.), appeal denied, 982 A.2d 1229 (Pa. 2009). 16

18 Generally a medical expert s opinion will not support a termination if that medical expert does not acknowledge the accepted work injuries and does not opine full recovery from those injuries since an employer may not re-litigate the nature of the accepted work injury in a termination petition. Hall v. Workers Compensation Appeal Board (America Service Group), 3 A.3d 734, 740 (Pa. Cmwlth. 2010). However, even though a physician does not believe that the injury occurred or that it was work-related, if he assumes that the injury exists for purposes of the termination petition and opines that the claimant has fully recovered from that injury, such testimony will support a finding of full recovery. See To v. Workers Compensation Appeal Board (Insaco, Inc.), 819 A.2d 1222, 1225 (Pa. Cmwlth. 2003). In this case, Dr. Rubenstein defined Claimant s work injury as a left shoulder strain. He went on to state that the initial MRI revealed a non-related, pre-existing injury which did not correlate with Claimant s work-related injury. He explained that the term internal derangement is a non-specific term which encompasses fractures, dislocations, rotator-cuff tears, and sprains and strains. As such, he concluded that WCJ Bachman s 2003 ruling that Claimant sustained a left, internal derangement was consistent with his opinion that Claimant sustained a sprain. Although counsel specifically asked him to assume that Claimant sustained an internal derangement of his left shoulder in 2001, and asked whether Claimant had fully recovered when operating under this assumption, it is clear from the record that Dr. Rubenstein defined internal derangement for the 17

19 purposes of answering this question in the narrow sense, consistent with his own opinion, explaining: So, knowing that there is nothing in the glenohumeral joint that was internally deranged in the actual joint, we can only assume that the internal derangement would have to encompass the sprain and strain pain associated with the sprain and strain pattern. Given that information, it s pretty clear that [Claimant] is fully recovered. There is no indication of any pathology of the shoulder that has been documented that s causing the symptoms. And, again, it is very clear that the labral pathology on the MRI was present prior to this particular injury and had no correlation and was producing no symptoms subsequent to this particular injury. (1/21/11 Deposition of David Lloyd Rubenstein, M.D., at ) However, it is also clear from WCJ Bachman s 2003 Decision that she did not so limit the definition of internal derangement. Rather, she emphasized that Dr. Temple expressly noted the labral tears on Claimant s MRI findings, that Dr. Temple s opinions and testimony were competent, credible and adopted as facts in this case, and that they were further supported by objective diagnostic study. Dr. Rubenstein s testimony, which contradicts and disputes the MRI s indications, is incongruent with this finding. Indeed, as noted by the WCJ below, Claimant s injury was initially defined as a left shoulder sprain, but WCJ Bachman enlarged the definition of the accepted work injury. (2/8/13 WCJ Decision, 14.) 18

20 Such enlargement would be of no effect if it merely provided a synonym for the then-existing work injury, a left-shoulder sprain. Although a medical expert s testimony generally will be deemed competent even though he disagrees with the accepted work injury so long as he assumes it for the purposes of a termination petition, it will not be deemed competent where the expert defines the accepted work injury in a manner so narrow as to circumvent its intended definition. While Dr. Rubenstein gave lip service to the proposition that Claimant sustained an internal derangement, his narrow definition of the term was wholly inconsistent with the meaning attributed to it by WCJ Bachman. Therefore, it was impossible for Dr. Rubenstein to opine that Claimant fully recovered from the work-related injury accepted by WCJ Bachman. See To, 819 A.2d at 1225 (explaining that where a medical expert fails to recognize that a claimant sustained an accepted work injury, it is impossible for the medical expert to give an opinion that the claimant ha[s] fully recovered from that injury ). Because Employer s Termination Petition is unsupported without this evidence, we reverse the Board s decision in this regard Because we find Dr. Rubenstein s testimony incompetent for the reasons stated above, Claimant s arguments that the testimony should be excluded for the additional reasons that the Notice of Deposition was untimely served, that Employer s failure to supply Claimant s counsel with the medical records given to Dr. Rubenstein for review interfered with Claimant s crossexamination of Dr. Rubenstein, and that Dr. Rubenstein failed to preserve his handwritten notes and records upon which his conclusions were based, are rendered moot. 19

21 B. Next, Claimant asserts that his Review Petition should have been granted because the uncontroverted testimony establishes that Claimant suffered chronic-pain syndrome as well as secondary depression and anxiety as a result of his work-related injury. However, a review of the record belies this characterization of the testimony. Indeed, Dr. Fenichel expressly stated that Claimant does not have a separate and distinct condition of depression or anxiety, noting that he showed no signs of sadness. (10/5/11 Deposition of Gladys Fenichel, M.D., at 37.) While rejecting the contention that he suffered from a post-traumatic stress disorder or an anxiety disorder, she admitted that he suffered from chronic-pain syndrome, but stated that his pain complaints could not be linked to any particular event. Although Dr. Temple testified that Claimant s chronic-pain syndrome was linked to his work injury, this testimony was rejected by the WCJ, who has sole discretion over matters of credibility and evidentiary weight. See City of Philadelphia v. Workers Compensation Appeal Board (Reed), 785 A.2d 1065, 1069 (Pa. Cmwlth. 2001), appeal denied, 820 A.2d 706 (Pa. 2003). Therefore, the WCJ s conclusion that Claimant failed to establish that he suffers from a psychological disorder is supported by substantial evidence. Even if Claimant did establish the existence of chronic-pain syndrome, he failed to prove that it was caused by his work injury. Claimant further contends that his injury should have been expanded to encompass Claimant s adhesive capsulitis and impingement syndrome about which Dr. Temple testified. Although Dr. Temple was the only physician to offer medical evidence regarding these conditions, the WCJ rejected his testimony to the 20

22 extent that it conflicted with Drs. Rubenstein s and Fenichel s testimony. Therefore, Claimant has failed to establish these conditions as well. C. Additionally, Claimant argues that Dr. Fenichel should have been precluded from examining Claimant seven months after Claimant s expert s examination, in violation of the period mandated by 34 Pa. Code (g). See 34 Pa. Code (g) ( Dates of the medical examinations, if not scheduled prior to the first hearing actually held, shall be scheduled within 45 days after the first hearing actually held. ). However, as the Board correctly noted, Claimant failed to raise this objection below and, therefore, waived it. See 34 Pa. Code (b) ( Objections shall be made and the basis for the objections stated at the time of the taking of the depositions. Only objections which are identified in a separate writing, introduced prior to the close of the evidentiary record, as close of the record is specified in (c) (e) (relating to briefs, findings of fact and close of record), and stating the specific nature of the objections and the pages where they appear in the deposition or the exhibits to which they refer will be preserved for ruling. Objections not so preserved are waived. ). D. Finally, Claimant contends that Employer failed to satisfy its burden of proof in demonstrating a reasonable contest under Section 440 of the Act Section 440 of the Act provides: In any contested case where the insurer has contested liability in whole or in part, including contested cases involving petitions to (Footnote continued on next page ) 21

23 Where a termination petition is resolved in an employee s favor, an award of attorney s fees is usually granted unless the employer established on the record that a reasonable basis for the contest exists. Smith v. Workers Compensation Appeal Board (Concept Planners and Designers), 670 A.2d 1146, 1149 (Pa. 1996). Based upon our finding that Employer s Termination Petition was supported only by Dr. Rubenstein s incompetent testimony, we remand this matter to the Board with instructions to further remand to the WCJ to determine whether Employer engaged in an unreasonable contest. Accordingly, we affirm the Board s decision regarding Claimant s Review Petition, reverse with regard to Employer s Termination Petition, vacate the decision with regard to Claimant s Penalty Petition, and remand this matter to the Board with instruction to remand to the WCJ for further proceedings on Claimant s Penalty Petition. DAN PELLEGRINI, President Judge (continued ) terminate..., the employe or his dependent, as the case may be, 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 fees, witnesses, necessary medical examination, and the value of unreimbursed lost time to attend the proceedings: Provided, That cost for attorney s fees may be excluded when a reasonable basis for the contest has been established by the employer or the insurer. 77 P.S. 996(a), added by Section 3 of the Act of February 8, 1972, P.L. 25, as amended. 22

24 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Adam Costello, : Petitioner : : v. : : Workers Compensation Appeal : Board (City of Philadelphia), : Respondent : No C.D O R D E R AND NOW, this 21 st day of April, 2015, the order of the Workers Compensation Appeal Board dated June 11, 2014, in the above-captioned case is affirmed insofar as it denied Adam Costello s Review Petition and reversed insofar as it granted the City of Philadelphia s Termination Petition. With respect to Adam Costello s request for unreasonable contest attorney s fees, the order is vacated and this matter is remanded to the Workers Compensation Appeal Board with instruction to remand to the Workers Compensation Judge for further proceedings consistent with this opinion. Jurisdiction relinquished. DAN PELLEGRINI, President Judge