IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA David McKeel, : : Petitioner : : v. : No C.D : Workers Compensation Appeal : Submitted: February 27, 2015 Board (Rezk), : : Respondent : BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE COHN JUBELIRER FILED: June 12, 2015 David McKeel (Claimant) petitions for review of an Order of the Workers Compensation Appeal Board (Board) affirming the Workers Compensation Judge s (WCJ) Decision granting in part and denying in part Claimant s Claim Petition. Specifically, the WCJ granted Claimant workers compensation (WC) benefits for the period from February 10, 2010, until March 30, 2010, but terminated Claimant s WC benefits as of March 31, On appeal, Claimant argues that the WCJ erred by failing to issue a reasoned decision to the extent that the WCJ (a) accepted Joseph Rezk s (Employer) expert evidence as credible; (b)

2 rejected Claimant s expert evidence as not credible; and (c) concluded that portions of Claimant s own testimony were not credible. Claimant also argues that Finding of Fact 38 was not supported by substantial evidence, and that the WCJ erred in not awarding certain litigation expenses to Claimant. Discerning no error, we affirm. I. BACKGROUND On February 2, 2010, Claimant was involved in a motor vehicle accident while working for Employer. (WCJ Decision, Findings of Fact (FOF) 1.) On June 14, 2010, Claimant filed a Claim Petition in which he alleged that he sustained a multitude of injuries in the accident and asserted total disability. (FOF 1.) Employer filed an answer to the Claim Petition denying all of the allegations. (FOF 2.) Hearings before the WCJ ensued. In support of the Claim Petition, Claimant presented, inter alia, his own testimony; the testimony of two co-workers; the deposition testimony of three doctors, a psychologist, and an accident reconstructionist; medical records; and medical bills. In opposition Employer presented, inter alia, the testimony of two witnesses, including Employer s owner; deposition testimony and medical reports of two doctors; photograph exhibits; a surveillance video of Claimant; and the deposition testimony and report of a biomechanical engineer. The WCJ summarized the evidence presented as follows. Claimant testified on his own behalf. Claimant explained that he worked as a driver for Employer. (FOF 5.) His duties involved delivering medical supplies 2

3 and appliances, such as oxygen bottles, lifts, and chairs, to customers homes. (FOF 5.) On February 2, 2010, Claimant was making deliveries in Employer s van when it was rear-ended while stopped at a red light. (FOF 5.) The collision pushed the van to the side of the road, two car lengths forward. (FOF 5.) The cargo in the van, which included oxygen tanks, was scattered around the van. (FOF 5.) Although Claimant was wearing his seatbelt, it did not function properly. (FOF 5.) Consequently, Claimant was flung forward, hit the steering wheel, and then flung back. (FOF 5.) Claimant s airbag also did not deploy. (FOF 5.) Claimant testified that after the accident took place, he experienced pain in his chest, back, low back, leg, and head. (FOF 5.) While Claimant stated that he experienced some of the pain immediately after the accident, other pain did not develop until later that day. (FOF 5.) Following the accident, Claimant exited the van and noticed that its bumper was marked, dented, and pushed higher on the right side. (FOF 5.) An ambulance arrived, but Claimant decided not to go to the hospital because he wanted to drive the van back to Employer s workplace. (FOF 5.) Upon arriving at Employer s workplace, Claimant s supervisor directed him to go to the hospital. (FOF 5.) Claimant testified that he went to the hospital, but that after he was released his back, chest and left leg pain worsened. (FOF 8.) He also stated that he developed headaches and pain in his arms. (FOF 8.) Consequently, Claimant visited several doctors. (FOF 8.) Claimant continued to work for employer until February 10, 2010, but avoided heavy lifting. (FOF 8.) Claimant testified that a month after the 3

4 accident he noticed a progressively worsening urgency to urinate and visited an urologist for the condition. (FOF 11.) Claimant also testified that he continued to suffer headaches. (FOF 11.) Claimant claimed that he never had urination issues or headaches before the accident. (FOF 11.) Claimant also complained about continued back problems and leg numbness and weakness. (FOF 12.) Claimant received low-back surgery on March 24, 2011, and continued to undergo hydrotherapy. (FOF 11.) Claimant submitted the deposition testimony and medical reports of William Mitchell, M.D., a board-certified orthopedic surgeon. (FOF 13.) Dr. Mitchell conducted a physical examination of Claimant on October 8, (FOF 13.) Dr. Mitchell diagnosed Claimant with post-traumatic aggravation of facet arthropathy at L4-L5 and L5-S1, post-traumatic L5-S1 left nerve root stretch injury, post-traumatic symptomatic aggravation of pre-existing degenerative disc disease at L4-L5 and L5-S1, post-traumatic chronic low back sprain with involuntary muscle spasm, and post-traumatic cervical sprain syndrome. (FOF 13.) Dr. Mitchell attributed Claimant s problems to the February 2, 2010 accident. (FOF 13.) Dr. Mitchell placed Claimant on complete disability from any work. (FOF 13.) Claimant next submitted the reports, records, and deposition of Zafar Chowdhry, M.D., a board-certified neurosurgeon. (FOF 14.) Claimant first visited Dr. Chowdhry on March 11, (FOF 14.) A lumbar MRI showed disc desiccation and narrowing of the disc space at L4-L5 and L5-S1, and mild bulging at L3-L4 and L4-L5 with related facet degenerative changes. (FOF 14.) 4

5 A CT scan was also conducted, which demonstrated a Type IV tear at L4-L5 with extravasation. (FOF 14.) Dr. Chowdhry was unaware if Claimant s lumbar instability existed prior to the accident but, due to new symptoms which developed after the accident, concluded that the accident aggravated Claimant s pre-existing condition and was the source of Claimant s current problems. (FOF 14.) Claimant next submitted the deposition of Daniel Johnson, M.D., a boardcertified family practice doctor. (FOF 15.) Dr. Johnson had treated Claimant since 2003 and examined Claimant after the accident on February 5, (FOF 15.) Dr. Johnson saw Claimant again on February 10, 2010 and determined that Claimant was completely disabled. (FOF 15.) Dr. Johnson diagnosed Claimant as suffering a closed head injury, urinary incontinence, injuries to the thoracic muscles, aggravation of pre-existing cervical and lumbar spine conditions, lumbar, cervical and thoracic sprain/strain, and radioculopathy that required surgical correction. (FOF 15.) Although Dr. Johnson noted that Claimant had prior degenerative changes, he attributed all of Claimant s current problems to the February 2, 2010, accident. (FOF 15.) Dr. Johnson s conclusion was based upon his examination findings, diagnostic studies, the fact that Claimant underwent surgery, and the fact that Claimant had no prior complaints. (FOF 15.) Dr. Johnson also attributed Claimant s urinary condition to the February 2, 2010, accident because Claimant had no prior symptoms. (FOF 15.) At the deposition, Dr. Johnson reviewed notes from Claimant s medical file, which showed that Claimant suffered radicular symptoms and back spasms in 1986 and had a left arm injury in 2006[,]... a neck and right arm injury in 2007, and voiced headache complaints during [that] time. (FOF 15.) 5

6 Claimant also submitted the deposition, reports, and records of Frank Schmidt, Ph.D., a board-certified clinical and family psychologist. (FOF 16.) Dr. Schmidt did not believe Claimant was a malingerer and so did not test for it. (FOF 16.) Dr. Schmidt observed that Claimant had difficulty reading. (FOF 16.) Many of Dr. Schmidt s diagnoses were based upon Claimant s self-reported symptomology, and Dr. Schmidt attributed all of Claimant s diagnoses to a concussion or contusion. (FOF 16.) While Claimant s emergency room records stated that he suffered from a closed head injury at the time of the accident, there were no actual clinical findings suggesting a concussion or contusion. (FOF 16.) After Dr. Schmidt reviewed the emergency room records, he acknowledged that he had no objective medical evidence to demonstrate that Claimant suffered a concussion in the February 2, 2010 accident. (FOF 16.) Because there was no evidence of a concussion, Dr. Schmidt indicated that it would be difficult to make a causal connection between Claimant s diagnoses and the motor vehicle accident. (FOF 16.) Dr. Schmidt also indicated that he had no knowledge of the specifics of the accident[] other than what Claimant reported. (FOF 16.) Employer submitted the report and deposition of Richard Kozakiewicz, M.D., who is Board-certified in physical medicine and rehabilitation. (FOF 17.) Dr. Kozakiewicz conducted an independent medical evaluation (IME) of Claimant on March 31, (FOF 17.) At the time of the IME, Claimant complained of pain and numbness throughout his left leg and thigh, which did not correspond to a specific nerve root. (FOF 17.) The IME was unremarkable, except that Claimant complained of non-anatomic subjective pain. (FOF 17.) Dr. Kozakiewicz concluded that Claimant sustained a soft tissue injury to the 6

7 back and possibly the neck as a result of the February 2, 2010, accident... [but] had fully recovered from this injury by the time of the March 31, 2010 examination. (FOF 17.) Dr. Kozakiewicz also determined that Claimant s diagnostic studies showed only age-related changes, and Claimant s examination offered no clinical support for the subjective pain complaints. (FOF 17.) Further, Dr. Kozakiewicz concluded that Claimant had no residual disability or restrictions from the accident, and needed no further medical care. (FOF 17.) Thus, although Dr. Kozakiewicz acknowledged that Claimant s treatment records included a head injury diagnosis and that Claimant had been injured, he concluded that Claimant was fully recovered at the time of the IME. (FOF 17.) Employer also submitted the report and deposition of Lawson Bernstein, M.D., who is Board-certified in psychiatry and psychiatry neurology. (FOF 18.) Dr. Bernstein performed an independent psychiatric evaluation of Claimant on June 10, (FOF 18.) Dr. Bernstein conducted a mental status evaluation, which revealed no evidence of any clinically significant cognitive problems. (FOF 18.) Because Claimant had difficulty reading, due to a learning disability, Dr. Bernstein did not conduct the full range of written tests on Claimant. (FOF 18.) Dr. Bernstein concluded that Claimant met the criteria for malingering as it pertained to his alleged neuropsychiatric deficits. (FOF 18.) Dr. Bernstein s conclusion was based on the material he reviewed, [Claimant s] mental status evaluation, Claimant s exaggerated physical limitations when compared to the activities depicted on the surveillance materials, and [Claimant s] failure to mention his inability to read during the evaluation. (FOF 18.) Dr. Bernstein also did not find any evidence that Claimant suffered a brain injury or 7

8 other neuropsychiatric diagnosis related to the motor vehicle accident. (FOF 18.) Dr. Bernstein also acknowledged that persons with chronic pain disorder could develop depression... [and that t]he level of physical injury is not necessarily indicative of the level of resulting psychiatric problems. (FOF 18.) Dr. Bernstein further noted that Claimant had been diagnosed with a closed head injury on the day of the accident and that Claimant s documented pain complaints were largely consistent. (FOF 18.) Finally, Dr. Bernstein noted that it was not common for malingerers to opt to undergo surgery. (FOF 18.) Next, Employer presented the deposition and report of Andrew Rentschler, Ph.D., a biomechanical engineer. (FOF 19.) Dr. Rentschler performed a biomechanical investigation of Claimant s accident. (FOF 19.) Dr. Rentschler conducted a crush-based analysis to determine the delta-v involved in the accident. (FOF 19.) He concluded that the accident was a low impact crash and that [t]he acceleration force involved in the accident was less than most daily activities such as sitting in a chair, walking down steps, or sneezing. (FOF 19.) Dr. Rentschler also concluded that the accident did not involve sufficient force to produce Claimant s alleged injuries. (FOF 19.) He found no evidence of head trauma resulting from the accident and similarly determined that the force of the accident was not enough to produce the alleged cervical or lumbar injuries. (FOF 19.) Dr. Rentschler concluded there was no causal connection between the accident and the alleged injuries. (FOF 19.) In opposition to Dr. Rentschler s conclusions, Claimant submitted the deposition and report of Frank Costanzo, an accident reconstructionist. (FOF 8

9 20.) Mr. Costanzo disagreed with Dr. Rentschler s methodology. (FOF 20.) Specifically, he concluded that there was no direct correlation between a delta-v calculation and the predictability of cervical/lumbar injuries, because everyone responded to accidents differently. (FOF 20.) Mr. Costanzo also noted that Claimant was more pre-disposed to injury because of his degenerative condition. (FOF 20.) Claimant submitted his February 2, 2010, emergency room records. (FOF 21.) The principal diagnosis in the emergency room records was unspecified injury to the head. (FOF 21.) The records also included secondary diagnoses for neck sprain, unspecified chest wall injury, lumbago, and lumbosacral spondylosis without myelopathy. (FOF 21.) However, CT scans of the brain and cervical spine were normal. X-rays performed on the lower back showed moderate degenerative change. (FOF 21.) Employer submitted a surveillance video of Claimant. (FOF 38.) On December 15, 2010, Claimant was shown vigorously shoveling snow, mostly one handed. (FOF 38.) The WCJ noted that the snow did not seem heavy, given the ease with which it was moved[, but that]... Claimant was freely bending, twisting, and reaching. (FOF 38.) The WCJ observed that Claimant did not appear to limp while walking that day. (FOF 38.) On December 16, 2010, Claimant appeared to be limping outside of a physical therapy facility. (FOF 38.) Later that same day, however, the WCJ observed Claimant at a gas station, walking without a limp. (FOF 38.) Claimant was also shown in the video freely moving and bending while carrying a large box of what appeared to be 9

10 Styrofoam cups, one-handed. (FOF 38.) Claimant intermittently appeared to be limping while carrying the box; later at a Wal-Mart, Claimant did not appear to be limping. (FOF 38.) Employer also submitted photograph exhibits of the van; although the photographs show that the rear bumper was scuffed, no major damage to the van is apparent in the photographs. (FOF 33.) Based on all the evidence presented, the WCJ found that Claimant was involved in a low-impact work-related motor vehicle accident on February 2, (FOF 39.) The WCJ noted that there was no dispute that an accident occurred or that Claimant s van was rear-ended while he was stopped. (FOF 39.) With respect to the severity of the collision, the WCJ found that it was nothing more than the proverbial fender bender. (FOF 39.) The photographs of the van indicated it was not significantly damaged, no repairs were made to the van, and the vehicle[] [was] drivable after the accident. (FOF 39.) The WCJ further found that the calculations of Dr. Rentschler and Mr. Costanzo confirmed the collision was low-impact. (FOF 39.) Dr. Rentschler and Mr. Costanzo disagreed about what conclusions could be drawn regarding the potential injuries resulting from such a low-impact crash; however, the WCJ accepted Dr. Rentschler s opinion that such a low-impact crash could not cause most of Claimant s claimed injuries. (FOF 39.) The WCJ found that Claimant suffered disabling cervical and lumbar strains as a result of the accident, but that no other claimed injuries were attributable to the accident. (FOF 40.) The WCJ also found that Claimant s testimony was not credible with respect to the claimed work injuries or complaints 10

11 of extended disability. (FOF 40.) Regarding the medical opinions, the WCJ credited the opinions of Dr. Kozakiewicz over those of Dr. Chowdhry, Dr. Mitchell, and Dr. Johnson. (FOF 40.) The WCJ rejected Dr. Chowdhry and Dr. Mitchell s opinions in full and most of Dr. Johnson s opinions. (FOF 40.) The WCJ also found that Claimant did not suffer a closed head injury as a result of the February 2, 2010 accident. (FOF 41.) With regard to the medical evidence of the alleged closed head injury, the WCJ credited the opinion of Dr. Bernstein over the opinion of Dr. Schmidt. (FOF 41.) The WCJ found that Claimant had fully recovered from his work-related injuries as of March 31, (FOF 42.) Because the WCJ found that Claimant did suffer a work-related injury that temporarily disabled his lower back and neck, the WCJ allowed Claimant to recover most litigation expenses, but excluded $9, in costs. (FOF 44.) The WCJ concluded that Claimant sustained his burden of proving that he suffered a work-related injury in the nature of cervical and lumbar sprains and strains and that he sustained his burden of proving work-related disability from February 10, 2010 through March 30, (WCJ Decision, Conclusions of Law (COL) 3-4.) However, the WCJ concluded that Claimant did not prove that he suffered any other conditions as a result of the vehicle accident. (COL 5.) Because Claimant was unable to prove an ongoing disability after March 30, 2010, the WCJ terminated benefits after that date. (COL 7.) The WCJ allowed Claimant to recover the reasonable litigation expenses associated with the acknowledged injury and disability period from February 2, 2010, until March 30, (COL 9.) The WCJ also overruled all of Claimant s and Employer s preserved objections. (COL 11.) Consequently, the WCJ granted Claimant s 11

12 Claim Petition for the closed period between February 10, 2010, and March 30, 2010, and terminated Claimant s WC benefits as of March 31, (WCJ Order.) Claimant appealed to the Board, arguing that the WCJ did not issue a reasoned decision, his findings were not supported by substantial or competent evidence, and that he capriciously disregarded the evidence. (Board Op. at 2.) Concluding that the WCJ had not consciously disregarded the evidence and that there was substantial and competent evidence to support his findings, the Board affirmed the WCJ s Decision and Order. (Board Op. at 8-9.) II. DISCUSSION On appeal, 1 although Claimant raises approximately twenty issues, 2 the crux of Claimant s argument is that the WCJ did not issue a reasoned decision. 1 This Court s scope of 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. Peters Township School District v. Workers Compensation Appeal Board (Anthony), 945 A.2d 805, 810 n.8 (Pa. Cmwlth. 2008). Substantial evidence has been defined as such relevant evidence as a reasonable person might accept as adequate to support the conclusion. Wells-Moore v. Workmen s Compensation Appeal Board (McNeil Consumer Products Co.), 601 A.2d 879, 881 (Pa. Cmwlth. 1992). [T]he appellate role is not to reweigh the evidence or to review the credibility of the witnesses, but to determine whether, upon consideration of the evidence as a whole, the [WCJ s] findings have the requisite measure of support in the record. Bethenergy Mines, Inc. v. Workmen s Compensation Appeal Board (Skirpan), 612 A.2d 434, 437 (Pa. 1992). 2 In the statement of question involved section of Claimant s brief he does not set forth specific questions or issues, but incorporates, by reference, the issues stated in his Petition for Review filed with this Court. Pursuant to Rule 2116(a) of the Pennsylvania Rules of Appellate Procedure, the brief must contain a statement of questions involved, which state[s] concisely the issues to be resolved, expressed in the terms and circumstances of the case. Pa. R.A.P. 2116(a) (emphasis added). Moreover, [n]o question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby. Id. (emphasis added). Thus, 12 (Continued )

13 Claimant also argues that because the WCJ partially granted Claimant s Claim Petition, the WCJ erred in not awarding certain litigation expenses to Claimant. In addition, Claimant maintains that Finding of Fact 38 is not supported by substantial evidence. 3 A. Whether the WCJ issued a reasoned decision. Claimant argues that the WCJ did not issue a reasoned decision in accepting, as credible, Employer s evidence and rejecting, as not credible, Claimant s evidence. Specifically, Claimant contends that the WCJ erred in accepting, as credible, the expert testimony and/or reports of Doctors Kozakiewicz, Bernstein, and Rentschler, and rejecting, as not credible, the testimony and/or reports of Claimant, Costanzo, and Doctors Mitchell, Johnson, and Schmidt. 4 Claimant did not comply with Rule 2116(a) when he incorporated the issues from his Petition for Review. Claimant s Petition for Review is over thirty pages long; therefore, the inclusion of a concise statement of questions involved in the brief would have assisted this Court in more effectively conducting a meaningful review of the issues raised by Claimant in this appeal. It also appears that Claimant s counsel passed away shortly after the brief was filed. See 5ba00ddc1433.html (last visited May 12, 2015). Due to these unfortunate circumstances, we will address Claimant s issues on the merits, to the extent that we are able to discern them from the Petition for Review. 3 Claimant also argues that the WCJ erred in overruling 86 objections made by Claimant s counsel at the hearing without articulating adequate bases for overruling the objections. Because Claimant has neither provided any specifics on the objections made nor identified where in the record the objections were made, we are unable to address this issue. 4 Claimant also argues that Employer s expert testimony was not competent. For example, Claimant contends that Dr. Rentschler s testimony was incompetent/equivocal because, inter alia, [Dr.] Rentschler has not participated in any studies nor written any articles concerning mild traumatic brain injury of post-concussion syndrome, [Dr.] Rentschler admitted that a lot of auto collisions in a case like this occur in hundreds of milliseconds... but did not say how many, and that when Dr. Rentschler was asked whether there had been any 13 (Continued )

14 Section 422(a) of the Workers Compensation Act 5 (Act) provides, in relevant 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 (emphasis added). A decision is reasoned if it allows a reviewing court to perform adequate appellate review. Dorsey v. Workers Compensation Appeal Board (Crossing Construction Company), 893 A.2d 191, 194 (Pa. Cmwlth. 2006). In cases where the credibility determination is not tied to the WCJ s actual biomechanical research conducted on individuals having both preexisting cervical and lumbar injuries Dr. Rentschler first stated that there were previous studies conducted, but later stated that he would have to go back and check. (Claimant s Br. at 11, 21 (emphasis added).) Similarly, with Dr. Kozakiewicz, Claimant argues that Dr. Kozakiewicz s medical opinion that there is no objective medical basis for [Claimant s] subjective complaints is not supported by competent evidence in the record and that Dr. Kozakiewicz s testimony was incompetent/equivocal because he stated that there is no question [that Claimant] was injured, [but] it s a question of how much. (Claimant s Br. at 37, 39 (emphasis omitted) (internal quotation marks omitted).) Although Claimant couches these arguments as competency objections, these arguments essentially challenge the weight the WCJ placed on Employer s expert evidence. It is well settled, however, that determinations as to witness credibility and evidentiary weight are not subject to appellate review. Hayden v. Workmen s Compensation Appeal Board (Wheeling Pittsburgh Steel Corporation), 479 A.2d 631, 635 (Pa. Cmwlth. 1984). 5 Act of June 2, 1915, P.L. 736, as amended, 77 P.S

15 viewing of a witness s demeanor, such as [w]here medical experts testify by deposition, the WCJ s resolution of conflicting evidence must be supported by more than a statement that one expert is deemed more credible than another. Id. at 195. [S]ome articulation of the actual objective basis for the credibility determination must be offered for the decision to be a reasoned one which facilitates effective appellate review. Daniels v. Workers Compensation Appeal Board (Tristate Transport), 828 A.2d 1043, 1053 (Pa. 2003). Section 422(a) of the Act does not allow a party to challenge the WCJ s credibility determinations, which will be upheld unless they are made arbitrarily or capriciously. Dorsey, 893 A.2d at 195. However, although the WCJ decision must articulate an objective basis for the credibility determination in order to be reasoned, Daniels, 828 A.2d at 1053, the WCJ, as the ultimate fact finder in WC cases, has exclusive province over questions of credibility and evidentiary weight and is free to accept or reject the testimony of any witness, including a medical witness, in whole or in part, General Electric Company v. Workmen s Compensation Appeal Board (Valsamaki), 593 A.2d 921, 924 (Pa. Cmwlth. 1991). Accordingly, determinations as to witness credibility and evidentiary weight are not subject to appellate review. Hayden v. Workmen s Compensation Appeal Board (Wheeling Pittsburgh Steel Corporation), 479 A.2d 631, 635 (Pa. Cmwlth. 1984). We conclude that the WCJ adequately explained why he rejected or discredited certain evidence and accepted other evidence. First, with respect to the conflicting evidence offered by Dr. Rentschler and Mr. Costanzo, the WCJ noted 15

16 that Dr. Rentschler is a trained biomechanical engineer, and thus, is in the better position to understand how an accident can impact the motor vehicle occupants. Dr. Rentschler also had the benefit of actually seeing Claimant s van. (FOF 39.) Conversely, regarding Mr. Costanzo, the WCJ noted that while certainly skilled, Mr. Costanzo is an accident reconstructionist, with no specialized training in biomechanical engineering, who did not inspect Claimant s vehicle. (FOF 39.) The WCJ further found that Dr. Rentschler s calculations were well-reasoned and backed by supporting studies, whereas Mr. Costanzo simply opined, in a conclusory fashion, that Dr. Rentschler s calculations were an impossibility, without adequately addressing Dr. Rentschler s explanation to the contrary. (FOF 39.) Moreover, the WCJ found that in a case where such a minimal impact is involved, coupled with all of the other referenced factors indicating only a minor collision, Dr. Rentschler s credited opinions are consistent with Employer s contention that the array of conditions alleged by Claimant [were] not a consequence of the accident. (FOF 39.) Second, the WCJ explained his reasons for not finding Claimant s testimony credible. The WCJ specifically found that Claimant s description of the severity of the car accident and his resulting injuries was contradicted by other credible evidence. (FOF 40 (emphasis added).) The WCJ noted that the impact of the vehicle accident was minimal and that Claimant s contention that he suffered a head injury and chest trauma was unsupported by emergency room records. (FOF 40.) The WCJ also found Claimant s claims not credible because Claimant worked for a week after the accident, Claimant s medical records showed no significant problems ex[cept] for prior degenerative findings, and Claimant s 16

17 description of debilitating pain was contradicted by the surveillance video that showed Claimant exhibit[ing] a vigor and range of movement. (FOF 40.) Third, the WCJ explained his reasons for crediting the opinions of Dr. Kozakiewicz over the opinions of Dr. Johnson, Dr. Mitchell, and Dr. Chowdhry. (FOF 40.) The WCJ found that Dr. Kozakiewicz s opinions were both sensible and supported by the medical records... [and that] Dr. Kozakiewicz adequately accounted for the relatively minimal impact of the collision. (FOF 40.) The WCJ also noted that Dr. Kozakiewicz explained the disparity between Claimant s complaints of pain and his inconsistent findings upon examination and the depictions on the surveillance, as well as the lack of any significant findings of anything more sinister than a back strain in the initial medical materials. (FOF 40.) Because Dr. Kozakiewicz s opinions were more coherent and consistent with the available medical data, the WCJ credited all of his opinions. (FOF 40.) With regard to Dr. Chowdhry s opinions, the WCJ found them not credible because Dr. Chowdhry disclaimed any knowledge of Claimant s accident other than Claimant s account, which the WCJ previously rejected. (FOF 40.) The WCJ also found that Dr. Chowdhry s opinions were not credible because they were mostly based on Claimant s discredited complaints and because Dr. Chowdhry s opinion on the causal relationship between Claimant s alleged injuries and the accidents were only based upon the temporal relationship between the accident and the symptoms. (FOF 40.) Moreover, the WCJ found that Dr. Chowdhry s opinions were less than credible given Claimant admitted pre-existing degenerative problems, the minimal nature of the accident, and the fact that no 17

18 surgical recommendation was made for over a year after the accident. (FOF 40.) The WCJ also rejected Dr. Mitchell s opinion because it was mostly based on Claimant s rejected medical history and complaints, and because Dr. Mitchell appeared to distance himself from his previous opinions after viewing the surveillance video that depicted Claimant s activities. (FOF 40.) The WCJ also discredited Dr. Mitchell s opinions because the doctor s opinions vacillated over time. (FOF 40.) Specifically, Dr. Mitchell initially cleared the previously completely disabled Claimant to full-time light-duty work or part-time medium duty work, citing a considerable improvement[, b]ut later... without the benefit of an intervening examination, Dr. Mitchell opined that Claimant s condition had worsened, thus necessitating surgery. (FOF 40.) In addition, the WCJ explained why it rejected most of Dr. Johnson s opinions. (FOF 40.) The WCJ noted that Dr. Johnson was a family physician, but that in forming his opinions on Claimant s injuries, he largely ignored the opinions of the[] specialists or the medical records and, instead, relied almost exclusively upon Claimant s subjective complaints. (FOF 40.) In particular, the WCJ found that Dr. Mitchell reached his own conclusions regarding Claimant s alleged urologic problems, radiculopathy, and the necessity of surgery, notwithstanding the contrary opinions of an urologist, Dr. Chowdhry, and another neurologist. (FOF 40.) Moreover, the WCJ found that Dr. Mitchell lacked a clear understanding of the minimal nature of the accident and did not account for Claimant s actual medical findings. (FOF 40.) The WCJ did, however, credit 18

19 Dr. Mitchell s opinion with respect to his conclusion that Claimant suffered a disability during February and March (FOF 40.) Fourth, the WCJ credited Dr. Bernstein s opinions over Dr. Schmidt s opinions to find that Claimant did not suffer a closed head injury. (FOF 41.) The WCJ found that most of Dr. Schmidt s opinions were based upon Claimant s discredited symptomology. (FOF 41.) The WCJ further found that Dr. Schmidt attributed his diagnoses for Claimant to a concussion or contusion, but that when Dr. Schmidt was confronted with the emergency room records that contained no clinical findings or history of a head contusion, Dr. Schmidt acknowledged the tenuous nature between the incident and the claimed head injury. (FOF 41.) Moreover, the WCJ found that Dr. Schmidt did not understand the nature of Claimant s car accident. (FOF 41.) As for Dr. Bernstein, the WCJ found that he was a highly qualified psychiatrist and that his opinions were well-grounded and based upon his clinical assessment, not a mere recitation of Claimant s symptomology. (FOF 41.) Dr. Bernstein also explained his reasons for concluding that Claimant was a malingerer, specifically citing the surveillance video and Claimant s lack of candor during the examination. (FOF 41.) In addition, the WCJ found that Dr. Bernstein s opinion that Claimant had no workrelated cognitive impairment was consistent with Claimant s normal brain imaging studies, the lack of clinical findings or history of head injury, and the minimal nature of the collision. (FOF 41.) As demonstrated above, the WCJ articulated objective bases for accepting Employer s expert evidence as credible and rejecting Claimant s own testimony 19

20 and Claimant s expert evidence as not credible. Daniels, 828 A.2d at Because the WCJ offered detailed explanations for why he accepted Employers expert evidence and adequately explained the reasons for why he found Claimant s own testimony and expert evidence as not credible, the WCJ issued a reasoned decision pursuant to Section 422(a) of the Act, 77 P.S Based on the WCJ s credibility determinations for Claimant and Claimant s experts, the WCJ concluded that Claimant neither demonstrated that he suffered injuries other than lumbar and back strain in the accident nor that he remained injured after March 30, Therefore, the WCJ concluded that Claimant did not meet his burden of proving that he remained disabled after March 30, The WCJ had exclusive province over questions of credibility and evidentiary weight and was free to accept or reject the testimony of any witness. General Electric Company, 593 A.2d at 924. Accordingly, because the WCJ issued a reasoned decision, the WCJ s determinations as to witness credibility and evidentiary weight are not subject to review by this Court. Hayden, 479 A.2d at 635. B. Whether Finding of Fact 38 is supported by substantial evidence. Claimant argues that Finding of Fact 38, which describes the surveillance video, is not supported by substantial evidence. Our review of the video confirms the WCJ s finding that, on December 15, 2010, Claimant was observed shoveling snow one-handed and that Claimant was freely able to bend, twist, and reach while shoveling snow. Our review also confirms the WCJ s finding that, on December 6 We note that, in a claim proceeding, the employee bears the burden of establishing a right to compensation and of proving all necessary elements to support an award. Inglis House v. Workmen s Compensation Appeal Board (Reedy), 634 A.2d 592, 595 (Pa. 1993). 20

21 16, 2010, Claimant freely moved and bended while carrying a box of Styrofoam cups and appeared to intermittently walk without a limp. While Claimant disputes the WCJ s conclusions regarding witness credibility that were drawn from the surveillance video, we may not upset those credibility and evidentiary weight determinations. Id. C. Whether the WCJ erred in not awarding certain litigation expenses to Claimant. Claimant contends that the WCJ erred in limiting the amount of costs awarded to Claimant. In particular, the WCJ did not allow Claimant to recover $9, related to costs incurred by Claimant in attempting to demonstrate a closed head injury and the seriousness of the accident. Under Section 440(a) of the Act, where the matter at issue has been finally determined in whole or in part in favor of a claimant, the claimant is entitled to recover reasonable litigation expenses. 77 P.S. 996(a). 7 However, this Court has previously held that for litigation expenses to be considered reasonable they must relate to the matter at issue on which Claimant prevailed, i.e., establishing a work-related injury. Jones v. Workers Compensation Appeal Board (Steris Corporation), 874 A.2d 717, 722 (Pa. Cmwlth. 2005). While Claimant successfully demonstrated that he suffered lumbar and cervical strain in the accident and was disabled from February 2, 2010, through March 30, 2010, he did not prevail in demonstrating that he remained disabled after March 30, 2010, that he suffered a closed head injury, or that he suffered anything other than lumbar and 7 Added by Section 3 of the Act of February 8, 1972, P.L.125, as amended. 21

22 cervical strain in the accident. The WCJ allowed Claimant to recover costs associated with proving the disabling lumbar and cervical injuries, such as the expenses incurred from Dr. Johnson, Dr. Chowdhry, and Dr. Mitchell; however, the WCJ did not allow Claimant to recover costs associated with Claimant s attempt to demonstrate either a closed head injury or that a more serious injury occurred in the accident. These costs included the expenses associated with Dr. Schmidt and Mr. Costanzo. Because Claimant did not prevail in proving he suffered a closed head injury or that the accident resulted in more serious injuries than a lumbar and cervical strain, the WCJ did not err in not allowing Claimant to recover costs for these issues. Accordingly, for the foregoing reasons, the Board s Order is affirmed. RENÉE COHN JUBELIRER, Judge 22

23 IN THE COMMONWEALTH COURT OF PENNSYLVANIA David McKeel, : : Petitioner : : v. : No C.D : Workers Compensation Appeal : Board (Rezk), : : Respondent : O R D E R NOW, June 12, 2015, the Order of the Workers Compensation Appeal Board, entered in the above-captioned matter, is hereby AFFIRMED. RENÉE COHN JUBELIRER, Judge