IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brian MacTough, :

Petitioner :

:

v. : No. 748 C.D. 2019

: Submitted: November 27, 2019

Workers’ Compensation Appeal :

Board (City of Philadelphia), :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE BROBSON FILED: May 13, 2020

Brian MacTough (Claimant) petitions for review of an order of the Workers’ 

Compensation Appeal Board (Board), dated May 22, 2019. The Board affirmed an 

order of Workers’ Compensation Judge Patricia Bachman (WCJ Bachman), which 

granted the termination petition filed by the City of Philadelphia (Employer).

1

 We 

now affirm.

I. BACKGROUND

The history of this matter involves two separate injuries that Claimant 

sustained during the nineteen years he worked for Employer. On August 31, 1993, 

 

1 WCJ Bachman also denied Claimant’s penalty petitions. Only the grant of the termination 

petition, however, is before the Court in this appeal. 
2

while working for Employer as a mechanic, Claimant sustained an injury to his 

cervical spine, which the parties described as “cervical spine trauma” (1993 work 

injury). (Reproduced Record (R.R.) at 36a, 57a.) In February 1994, Claimant 

returned to light-duty work for Employer as a mechanical maintenance coordinator

at no loss of earnings. (Id. at 24a, 36a.) In spring of 2010, however, Claimant began 

to experience the same type of pain in his cervical spine that he had previously 

experienced in 1993 and 1994. (Id. at 36a.) The pain gradually worsened each day 

that Claimant worked for Employer. (Id.) As a result, on June 10, 2010, Claimant 

filed a reinstatement petition and a penalty petition, alleging that his 1993 work 

injury had recurred and that he had returned to full disability as of April 25, 2010, 

the date on which his family doctor restricted him from working. (Id. at 36a-37a.) 

Thereafter, on September 1, 2010, Claimant also filed a claim petition, alleging that 

he sustained a new injury on April 25, 2010—i.e., an aggravation of his 1993 work

injury. (Id.)

In support of his petitions, Claimant produced the deposition testimony of 

Leonard Bruno, M.D., who diagnosed Claimant with acute and chronic disc 

herniations at the C5-6 and C6-7 levels, resulting in left-sided radiculopathy. 

(Id. at 37a.) Dr. Bruno opined that Claimant’s repetitive work duties from 

1994 to 2010—i.e., the bending of his head at his computer and desk—accelerated 

the degenerative changes in Claimant’s cervical spine at C5-6 and C6-7, both of 

which were injured at the time of Claimant’s 1993 work injury. (Id. at 37a-38a.) In 

opposition to Claimant’s petitions, Employer submitted the deposition testimony of 

Mario Arena, M.D., who opined that the degenerative changes in Claimant’s spine 

were preexisting and unrelated to a work injury. (Id. at 38a.) By decision and order 

dated October 28, 2011, WCJ Bachman granted Claimant’s claim petition, dismissed 
3

Claimant’s penalty petition, and denied Claimant’s reinstatement petition as moot 

(2011 WCJ decision). (Id. at 40a.) In so doing, WCJ Bachman credited Dr. Bruno’s 

testimony, specifically noting that she was “persuaded that an aggravation of 

Claimant’s neck and cervical injury [occurred] over time, [because] Claimant 

continued to work on and after 1994 up until April 25, 2010.” (Id. at 39a.) 

Accordingly, WCJ Bachman essentially concluded that Claimant established that he 

sustained “a new injury” on April 25, 2010, in the form of an 

aggravation/acceleration of the degenerative changes at C5-6 and C6-7 (2010 work 

injury), cervical levels that had previously been injured at the time of the 1993 work 

injury. (Id. at 37a, 40a.)

Sometime thereafter, Employer filed a termination petition, alleging that 

Claimant had fully recovered from his 2010 work injury. (Id. at 24a.) In support 

thereof, Employer presented the deposition testimony of Robert Keehn, M.D., who 

acknowledged that Claimant continued to demonstrate objective findings on 

physical examination, including “atrophy of the cervical spine in the area of the 

shoulders consistent with a cervical radiculopathy in the left trapezius.” 

(Id. at 26a-27a.) Despite these objective findings, Dr. Keehn opined that Claimant 

had fully recovered from his 2010 work injury and that any ongoing impairments 

and restrictions relative to Claimant’s cervical spine were not work related at least 

as of July 3, 2013, the date of his physician’s affidavit of recovery. (Id. at 26a, 30a.) 

In opposition to Employer’s termination petition, Claimant presented the deposition 

testimony of Mark DeLaurentis, M.D., who indicated that Claimant’s magnetic 

resonance imaging (MRI) films from 2010, 2012, and 2013, evidenced “significant 

adhesions in the epidural spaces of C5-6 and C6-7, as well as extensive scar tissue.” 

(Id. at 29a.) Ultimately, Dr. DeLaurentis opined that Claimant’s ongoing 
4

impairments and restrictions—i.e., degeneration and bilateral radiculopathy in the 

cervical spine—were related to Claimant’s 2010 work injury. (Id. at 28a-30a.) By 

decision and order dated August 12, 2015, Workers’ Compensation Judge Stephen 

Harlen (WCJ Harlen) accepted Dr. DeLaurentis’ testimony as credible, concluded 

that Claimant had not recovered from the 2010 work injury, and denied Employer’s

termination petition (2015 WCJ decision). (Id. at 30a-32a.)

Subsequent thereto, on January 20, 2017, Employer filed the termination 

petition that is the subject of this appeal (Termination Petition), alleging that 

Claimant had fully recovered from the 2010 work injury as of December 20, 2016. 

In opposition to Employer’s Termination Petition, Claimant testified that, since the 

time of WCJ Harlen’s decision, he has treated with Randal Smith, M.D., for his 

cervical spine injury. (Id. at 53a.) Dr. Smith has prescribed a corrected course of 

medication and home heat therapy. (Id. at 54a.) Claimant explained that he 

continues to suffer pain and numbness in his neck, left side, arm, and fingers since 

the 2010 work injury and that such pain prevents him from engaging in activities for 

more than an hour at a time and from sleeping well. (Id. at 56a-59a.) Claimant 

testified further that his position with Employer as a mechanical maintenance 

coordinator involved approximately sixty percent office work and forty percent

“field work”—i.e., daily trips around the maintenance facility and trips to various 

work sites—and required him to be able to climb ladders and lift up to fifty pounds. 

(Id. at 57a-58a.) Claimant did not believe that he was physically capable of

returning to that position at any point during the two-year period before the 

October 12, 2017 hearing. (Id. at 58a.)

On cross-examination, Claimant admitted that he began seeing Dr. Smith at 

the suggestion of his attorney. (Id. at 63a.) He discussed his use of a variety of 
5

medications since the 2010 work injury and explained that he had never had neck 

surgery and could not undergo physical therapy without sustaining further injury. 

(Id. at 63a-69a.) Claimant also stated that he has not sought or obtained any 

employment since he stopped working for Employer at the time of the 2010 work 

injury. (Id. at 68a-69a.) Finally, Claimant explained that he suffered a fall in 2015,

resulting in a few broken ribs but no increased pain in his neck. (Id. at 72a.)

Claimant also presented the deposition testimony of Dr. Smith, who is board 

certified in orthopedic surgery and who has treated Claimant since March 2016. 

(Id. at 83a, 90a.) Dr. Smith recounted Claimant’s symptoms upon presentation as 

including pain and stiffness in the neck, pain and numbness in the left arm, and night 

sweats. (Id. at 91a.) Dr. Smith’s initial physical exam of Claimant revealed spasms 

in Claimant’s left trapezius and a guarded range of motion, both of which indicated

the protection of an injured area. (Id. at 93a.) Dr. Smith described his initial 

diagnosis of Claimant’s 2010 work injury as herniated discs, progressive 

degenerative disc disease in the cervical spine, and resulting chronic cervical pain 

and radiculopathy. (Id. at 94a.) Dr. Smith also explained that he has continued to 

treat Claimant regularly since his initial exam and diagnosis, during which time his 

diagnosis has not changed and Claimant’s symptoms have not improved. 

(Id. at 96a.) Dr. Smith testified further that, on December 14, 2016, six days before 

Lawrence Barr, D.O., performed an independent medical examination (IME) of 

Claimant, Claimant’s symptoms remained virtually unchanged from what they had 

been since he had first treated Claimant approximately nine months earlier. 

(Id. at 97a-98a.) Dr. Smith also described a subsequent exam on January 13, 2017, 

during which he found that Claimant’s symptoms had worsened, with additional 

symptoms of radiculopathy on Claimant’s right side. (Id. at 99a.) Dr. Smith further 
6

testified that Claimant had not fully recovered from his 2010 work injury and 

requires further treatment for such injury. (Id. at 99a.) Furthermore, he considers 

Claimant to be permanently disabled from all employment. (Id. at 113a.)

Dr. Smith also discussed some of Claimant’s test results, including an MRI 

conducted on July 15, 2016, and an electromyography test (EMG) conducted on 

November 23, 2016. (Id. at 100a-01a.) Concerning the MRI, Dr. Smith testified 

that its results were consistent with Claimant’s history and clinical examination. 

(Id. at 102a-03a.) Concerning the EMG, he stated that the test showed left-sided 

C6-7 radiculopathy with acute and chronic denervation, and right-sided C6-7 

radiculopathy with chronic denervation—findings which were consistent with the 

MRI, his diagnosis, and the 2011 and 2015 WCJ decisions. (Id. at 103a-04a.) When 

questioned about how acute (as opposed to chronic) denervation could be consistent 

with a six-year-old injury, Dr. Smith explained that the 2010 work injury produced 

chronic symptoms that are exacerbated by daily activities, resulting in acute 

symptoms. (Id.) Dr. Smith testified that Claimant’s symptoms arising from the 

2010 work injury have been constant and progressive and that Claimant has not 

recovered and remains disabled because of the 2010 work injury. (Id. at 106a.) He 

also explained that objective medical evidence—including multiple MRIs showing 

progressive cervical degeneration, multiple EMGs, and Claimant’s loss of 

mobility—supports his opinion that the 2010 work injury has not ceased and that 

Claimant requires further treatment for recovery. (Id. at 106a-07a, 113a.)

On cross-examination, Dr. Smith explained that he treats adult patients of all 

ages and is aware that a progressive disease could suffer an intervening aggravation

and then return to a previous baseline condition once the aggravation resolves. 

(Id. at 115a-17a.) Dr. Smith described the progression of Claimant’s degenerative 
7

disc disease and radiculopathy, however, as being primarily caused by his 

work-related injuries and not primarily age related. (Id. at 122a-23a.) Dr. Smith 

explained that “[Claimant’s] level of disability, his level of discomfort would not be 

nearly what it is now if he had not had his work injuries.” (Id.)

In support of its Termination Petition, Employer presented the deposition 

testimony of Dr. Barr, who is board certified in orthopedic surgery. (Id. at 249a.) 

Dr. Barr testified that, during the physical examination portion of his IME, Claimant 

reported tenderness in his back and reduced sensation in his left arm and hand, but 

Dr. Barr observed no spasms, clonus, arm atrophy, or other clinical evidence of 

radiculopathy. (Id. at 259a-61a.) After a comprehensive review of Claimant’s 

medical history and records—including the 2011 WCJ decision and MRIs from 

2012 to 2016—Dr. Barr concluded that, although Claimant continues to suffer from 

disc degeneration in the cervical spine, he has recovered from the 2010 work injury. 

(Id.) Dr. Barr explained that the progressive degeneration and radiculopathy shown 

in Claimant’s MRI and EMG results were caused by “the normal aging process” that 

occurred after the 2010 work injury and are not causally related to the 2010 work 

injury. (Id. at 263a-65a, 270a.)

Dr. Barr also opined that Claimant was capable of returning to his position as 

a mechanical maintenance coordinator with Employer. (Id. at 265a.) He explained 

that the medium-duty restrictions that he placed upon Claimant were related to “the 

degenerative disc disease of the cervical radiculopathy,” not the 2010 work injury. 

(Id. at 265a-66a.) On cross-examination, Dr. Barr confirmed that Claimant 

presented with cervical radiculopathy, which is consistent with the results of the 

EMG conducted about one month before the IME. (Id. at 271a.) Dr. Barr conceded, 
8

however, that Claimant continues to suffer from one of the “subject work injuries”

identified in the 2011 WCJ decision—i.e., C6-7 radiculopathy. (Id. at 272a.)

By decision and order dated March 9, 2018, WCJ Bachman granted

Employer’s Termination Petition. In so doing, WCJ Bachman summarized the 

witnesses’ testimony and made the following relevant findings of fact and credibility 

determinations: 

6. This Workers’ Compensation Judge [(WCJ)] . . . finds 

Claimant’s testimony credible regarding his work 

injury and depiction of his symptoms but does not find 

Claimant’s testimony credible as to his perception that 

his condition is currently related to the [2010 work]

injury on and after December 20, 2016.

7. This [WCJ] . . . finds that the opinions of [Dr. Barr]

are more credible than those of [Dr. Smith], 

particularly when Dr. Barr testified that Claimant has 

fully recovered from his [2010 work injury]. This 

[WCJ] adopts Dr. Barr’s opinion as a finding of fact. 

In support, the following considerations are noted:

a) There is no dispute that Claimant suffers from 

degenerative disease of the cervical spine. In [the 

2011 WCJ decision], this [WCJ] adopted the 

opinion of [Dr. Bruno] that Claimant suffered from 

disc herniation at the C5-6 and C6-7 level[s] with 

left-sided radiculopathy. [This WCJ] also adopted 

Dr. Bruno’s opinion that “Claimant’s injuries were 

aggravated by the repetitive work duties Claimant 

performed over the years” including “repetitive 

bending of the head at the computer and desk,”

which “caused an acceleration of the disease 

process, and radiculopathy complaints.”

b) Both physicians agree that the disease process 

continues and that Claimant’s cervical spine in 2017

is in worse condition than in 2010. He now has 

right-sided radiculopathy, which Dr. Smith opined

is related to the work events. However, Claimant 

has not worked since 2010. He cannot argue that a 

degeneration that occurred, say, in 2015 and 
9

resulted in right-sided radiculopathy was caused by

“repetitive bending of the head at the computer and 

desk” from 1993 to 2010. Claimant’s cervical spine 

continues to degenerate not because of work 

activities he performed decades ago but, rather,

because of the ordinary process of aging.

(WCJ Bachman’s Decision, Mar. 9, 2018, at 7.) Based on these findings and 

credibility determinations, WCJ Bachman concluded that Employer met its burden 

of proof and established that, as of December 20, 2016, “Claimant [had] fully 

recovered from the aggravation of the underlying degenerative disc disease that 

occurred on April 25, 2010” and that Claimant’s ongoing symptoms were “the result

of the underlying disease process, not the aggravation thereof.” (Id. (emphasis 

added).) Claimant appealed WCJ Bachman’s March 9, 2018 decision to the Board, 

which affirmed. Claimant now petitions this Court for review. 

II. ARGUMENTS

On appeal,2 Claimant argues that the Board erred in affirming WCJ 

Bachman’s March 9, 2018 decision to grant Employer’s Termination Petition

because: (1) WCJ Bachman permitted Employer to relitigate the cause of 

Claimant’s injuries and, thus, failed to give proper issue-preclusive effect to the

2011 and 2015 WCJ decisions; and (2) WCJ Bachman’s finding that Claimant had 

fully recovered from his 2010 work injury is not supported by substantial evidence.

3

 

2 This Court’s review is limited to a determination of whether an error of law was 

committed, whether findings of fact are supported by substantial evidence, or whether 

constitutional rights were violated. Section 704 of the Administrative Agency Law, 

2 Pa. C.S. § 704.

3 We have reordered Claimant’s arguments for the purpose of discussion and disposition. 
10

III. DISCUSSION

A. Res Judicata/Issue Preclusion

Claimant argues that the Board erred by affirming WCJ Bachman’s 

March 9, 2018 decision, granting Employer’s Termination Petition, because 

WCJ Bachman permitted Employer to relitigate the cause of Claimant’s injuries and,

thus, failed to give proper issue-preclusive effect to the 2011 and 2015 WCJ 

decisions. More specifically, Claimant contends that the 2011 and 2015 WCJ 

decisions already determined that Claimant’s cervical degeneration and 

radiculopathy—from which he still suffers—are work related. The decisions, 

therefore, should preclude Employer’s attempt to terminate Claimant’s benefits. 

Claimant asserts that Employer’s filing of the Termination Petition is a disguised 

attempt to relitigate an issue already decided (i.e., the work-relatedness of 

Claimant’s injuries). In response, Employer argues that Claimant has 

mischaracterized the nature of Claimant’s 2010 work injury and has overstated the 

issue-preclusive effect of the 2011 WCJ decision. More specifically, Employer 

contends that, rather than relitigating the cause of the 2010 work injury, it 

permissibly showed that the normal aging process, rather than the work-related 

aggravation, is the present cause of Claimant’s continuing disability. 

The doctrine of res judicata incorporates two distinct principles of 

preclusion—collateral estoppel (or issue preclusion) and technical res judicata (or 

claim preclusion). Henion v. Workers’ Comp. Appeal Bd. (Firpo & Sons, Inc.), 

776 A.2d 362, 365 (Pa. Cmwlth. 2001). Here, although Claimant uses terminology 

from both of these principles in his brief, his argument actually focuses on collateral 

estoppel (or issue preclusion), which bars parties from relitigating particular issues
11

decided in prior litigation.

4 See Pucci v. Workers’ Comp. Appeal Bd. (Woodville 

State Hosp.), 707 A.2d 646, 647-48 (Pa. Cmwlth. 1998). Issue preclusion applies

where, inter alia, “the issue decided in the prior case is identical to the one presented 

in the later case.” Id. at 648.

In the workers’ compensation context, “issue preclusion prevents an employer 

from relitigating, by way of a petition to . . . terminate benefits, the original medical 

diagnosis underlying a referee’s finding of a claimant’s disability as of the date of 

the compensation award.” Hebden II, 632 A.2d at 1304 (emphasis added). In 

Hebden II, the disease at issue had already been adjudged as progressive and 

irreversible in a prior proceeding. Accordingly, our Supreme Court held that the 

employer’s attempt to show that the disease had abated was “merely a disguised 

attempt to relitigate what ha[d] already been settled”—i.e., that the claimant’s

work-related injury was permanent and, thus, continued to be the cause of his 

disability. Id. The Hebden II court added, however, an important caveat to its 

holding:

We do not lose sight of the fact that [Section 413 of the 

Workers’ Compensation Act5] expressly provides that an 

award may be terminated based upon changes in the 

[claimant’s] disability. . . . [T]hat raises the logical 

 

4

In contrast, technical res judicata (or claim preclusion) prevents parties from relitigating 

entire claims (as opposed to specific legal or factual issues within a claim). See Henion, 

776 A.2d at 365. Claim preclusion requires, inter alia, that the old and new proceedings have the 

same ultimate issues. Hebden v. Workmen’s Comp. Appeal Bd. (Bethenergy Mines, Inc.), 

597 A.2d 182, 190 (Pa. Cmwlth. 1991) (Hebden I), rev’d on other grounds, 632 A.2d 1302 

(Pa. 1993) (Hebden II). In the workers’ compensation context, we have consistently held that each 

subsequent claim or termination petition presents different ultimate issues because “[t]he ultimate 

issue . . . is whether the claimant is disabled at the time alleged in each petition.” Hebden I, 

597 A.2d at 192 (emphasis in original). Although it reversed Hebden I on other grounds, the 

Pennsylvania Supreme Court confirmed that “issue preclusion,” not claim preclusion, applies in 

these situations. Hebden II, 632 A.2d at 1304 (emphasis added). 

5 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 772. 
12

question of whether [a claimant’s] disability is changeable

in a given case. If it is, [a claimant’s] condition may be 

re-examined at a later time to see if he is still disabled or 

not. 

Id. (emphasis in original). Thus, although issue preclusion protects the original 

medical diagnosis of the work-related injury from relitigation, it does not prevent 

termination based on later changes in the disability unless the initial determination 

declared the disability to be permanent.

Concerning an employer’s attempt to show that a disability has changed, we 

have said:

It is well established that an employer seeking to 

terminate workers’ compensation benefits bears the 

burden of proving by substantial evidence either that the 

[claimant’s] disability has ceased, or that any current 

disability arises from a cause unrelated to the [claimant’s] 

work injury. [The e]mployer must show that any 

continued disability is the result of an independent cause 

or the lack of a causal connection between the continued 

disability and the original compensable injury. In either 

situation, this is a considerable burden because the 

claimant’s disability is presumed to continue until 

demonstrated otherwise. 

Parker v. Workers’ Comp. Appeal Bd. (Dock Terrace Nursing Home), 729 A.2d 102, 

104-05 (Pa. Cmwlth. 1999) (emphasis added) (citations omitted). “[I]f an employer 

asserts not that the disability has changed, but that there is a[ non-work-related]

cause for the disability, . . . the employer bears ‘the burden of proving that an 

independent cause . . . arose after the [claimant began receiving benefits].’” Gumro 

v. Workmen’s Comp. Appeal Bd., 626 A.2d 94, 97 (Pa. 1993) (emphasis in original) 

(quoting Beissel v. Workmen’s Comp. Appeal Bd. (John Wanamaker, Inc.), 

465 A.2d 969, 972 (Pa. 1983)). Under this line of cases, it is permissible for an 

employer to (1) accept that the initial injury and resulting disability were work 
13

related, and then (2) prove that “the . . . disability is no longer work[]related.” Id.

(quoting Beissel, 465 A.2d at 972) (emphasis added). 

Applying these principles to the instant matter, it appears that Claimant 

misunderstands a crucial conceptual distinction. Contrary to Claimant’s assertions, 

neither Employer nor WCJ Bachman’s March 9, 2018 decision relitigated or 

revisited “the cause of Claimant’s injuries.” (Claimant’s Br. at 14.) Rather, 

Employer sought to prove that Claimant had recovered from the 2010 work injury

as of a specific date—i.e., December 20, 2016—and that the cause of any remaining

disability is related to the natural aging process, not the 2010 work injury. 

Importantly, the injury at issue is not the disability, but rather, the work-related 

aggravation of the degenerative changes in Claimant’s cervical spine that resulted 

in disability, as determined by WCJ Bachman in the 2011 WCJ decision. In 

addition, in the 2015 WCJ decision, WCJ Harlen denied Employer’s prior 

termination petition after determining that Claimant had not at that time recovered 

from the 2010 work injury. Neither the 2011 WCJ decision nor the 2015 WCJ 

decision determined that the 2010 work injury was permanent or irreversible or that 

all of Claimant’s ongoing cervical degeneration and radiculopathy will necessarily

always be work related. Accordingly, neither decision precludes reexamination of 

the cause of Claimant’s ongoing disability at a later date. See Hebden II, 632 A.2d 

at 1304; Parker, 729 A.2d at 104-05. In other words, the 2011 and 2015 WCJ 

decisions do not preclude the instant action because the issues they decided are not 

“identical to the one presented” now. Pucci, 707 A.2d at 648. 

B. Substantial Evidence

Claimant argues that the Board erred by affirming WCJ Bachman’s 

March 9, 2018 decision granting Employer’s Termination Petition because WCJ 
14

Bachman’s finding that Claimant had fully recovered from his 2010 work injury is 

not supported by substantial evidence. More specifically, Claimant contends that 

Dr. Barr’s full-recovery opinion does not constitute substantial evidence to support

WCJ Bachman’s March 9, 2018 decision because Dr. Barr (1) failed to acknowledge 

the work-related nature of the 2010 work injury, and (2) did not possess an adequate 

understanding of Claimant’s medical history because he failed to review one of 

Claimant’s 2010 MRIs and the 2015 WCJ decision. In response, Employer argues 

that Dr. Barr’s testimony constitutes substantial evidence to support WCJ 

Bachman’s March 9, 2018 decision because Dr. Barr properly acknowledged 

the 2010 work injury and 2011 WCJ decision and comprehensively reviewed 

Claimant’s medical history.

In workers’ compensation proceedings, the WCJ is the ultimate finder of fact. 

Williams v. Workers’ Comp. Appeal Bd. (USX Corp.-Fairless Works), 862 A.2d 

137, 143 (Pa. Cmwlth. 2004). Matters of credibility, conflicting medical evidence, 

and evidentiary weight are within the WCJ’s exclusive province. Id. In determining 

whether the WCJ’s findings are supported by substantial evidence, we may not 

reweigh the evidence or the credibility of the witnesses but must simply determine 

whether the WCJ’s findings have the requisite measure of support in the record as a 

whole. Elk Mountain Ski Resort, Inc. v. Workers’ Comp. Appeal Bd. (Tietz, 

deceased), 114 A.3d 27, 32 n.5 (Pa. Cmwlth. 2015). If substantial evidence supports 

the WCJ’s necessary findings, it is irrelevant whether there is evidence to support a 

contrary finding. Williams, 862 A.2d at 143-44.

To succeed in a termination petition, the employer bears the burden to prove 

that the claimant’s disability has ceased and/or that any current disability is unrelated 

to the claimant’s work injury. Jones v. Workers’ Comp. Appeal Bd. (J.C. Penney 
15

Co.), 747 A.2d 430, 432 (Pa. Cmwlth.), appeal denied, 764 A.2d 1074 (Pa. 2000). 

“An employer proves full recovery with unequivocal, competent medical evidence.” 

Hall v. Workers’ Comp. Appeal Bd. (Am. Serv. Grp.), 3 A.3d 734, 740 

(Pa. Cmwlth. 2010). In order to render unequivocal, competent testimony, a medical 

expert witness must have a proper foundation, two aspects of which are at issue here. 

First, “[t]his Court consistently holds a medical opinion that does not recognize the 

work-relatedness of an injury previously determined to be work[]related is 

insufficient to support a termination of benefits.” Westmoreland Cty. v. Workers’ 

Comp. Appeal Bd. (Fuller), 942 A.2d 213, 218 (Pa. Cmwlth. 2008); see also 

Elberson v. Workers’ Comp. Appeal Bd. (Elwyn, Inc.), 936 A.2d 1195, 1199 (Pa. 

Cmwlth. 2007) (“[A]n employer’s expert must recognize the work injury . . . and 

opine that the claimant has fully recovered from that injury.” (emphasis added)), 

appeal denied, 944 A.2d 752 (Pa. 2008). Second, the expert must have a “full 

understanding” of the claimant’s medical history. Hall, 3 A.3d at 740. A partial or 

inaccurate medical history will not support a full-recovery opinion. See Chik-Fil-A 

v. Workers’ Comp. Appeal Bd. (Mollick), 792 A.2d 678, 689 (Pa. Cmwlth. 2002) 

(holding expert testimony incompetent where expert had “no knowledge of 

[c]laimant’s prior relevant medical records and treatment[] or any previous 

diagnostic test results” (emphasis added)).

Here, we agree with Employer that Dr. Barr’s full-recovery opinion is 

competent and provides substantial evidence to support WCJ Bachman’s finding that 

Claimant had fully recovered from the 2010 work injury as of December 20, 2016, 

such that it is no longer the cause of his ongoing disability. First, Dr. Barr properly 

acknowledged the work-related nature of the 2010 work injury. He based his 

opinion that Claimant “had recovered” on his understanding that the 2010 work 
16

injury was a “work injury . . . in the nature of [an] aggravation.” (R.R. at 262a 

(emphasis added).) He also specifically testified that he was aware of the 2011 WCJ 

decision and the “work injuries” it described. (Id. at 272a.) Second, Dr. Barr based 

his opinion on a comprehensive review of Claimant’s medical history, including 

Claimant’s own description of his medical history, the 2011 WCJ decision, and 

dozens of Claimant’s medical records, including, but not limited to, Claimant’s 

MRIs from 2012 to 2016 and notes from Claimant’s prior physicians. 

(Id. at 257a-61a, 296a-97a.) Given the extent of Dr. Barr’s review of Claimant’s 

medical history, we cannot agree with Claimant that Dr. Barr’s full-recovery opinion 

was based on a partial or inaccurate medical history simply because Dr. Barr did not 

review a single MRI from 2010 or the 2015 WCJ decision. See Chik-Fil-A, 792 A.2d 

at 689. Based on his review of Claimant’s history and medical records, Dr. Barr 

concluded that, although Claimant continues to suffer from disc degeneration in the 

cervical spine, he has recovered from the 2010 work injury. (Id. at 259a-61a.) Dr. 

Barr attributed Claimant’s current condition and his ongoing disability to “the 

normal aging process,” not the 2010 work injury. (Id. at 263a-65a, 270a.) This 

competent testimony provides substantial evidence to support WCJ Bachman’s 

finding that Claimant had fully recovered from the aggravation of the underlying 

degenerative disc disease that occurred on April 25, 2010.

6

 

 

6 Claimant further argues that Dr. Barr’s full-recovery opinion cannot provide substantial 

evidence for WCJ Bachman’s findings because Dr. Barr’s opinion was based on an improper 

hypothetical assumption/question. We disagree. As Employer points out, Claimant fails to 

identify how the relevant question was either incomplete or hypothetical. While the question may 

have asked Dr. Barr to “assume . . . Claimant was initially hurt at work on August 31, 1993,” that 

is not a counterfactual assumption. (R.R. at 261a.) More importantly, neither the question nor Dr. 

Barr’s response relied on that assumption. Instead, counsel made clear at the end of his question 

that Dr. Barr was to give his opinion based “upon the medical history [he] gathered.” (Id. at 262a.) 
17

IV. CONCLUSION

For the foregoing reasons, we conclude that WCJ Bachman did not fail to give 

appropriate preclusive effect to the 2011 and 2015 WCJ decisions in granting 

Employer’s Termination Petition. We further conclude that the record includes 

substantial, competent evidence to support WCJ Bachman’s finding that Claimant 

had fully recovered from the 2010 work injury as of December 20, 2016. 

Accordingly, we affirm the Board’s order. 

P. KEVIN BROBSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brian MacTough, :

Petitioner :

:

v. : No. 748 C.D. 2019

:

Workers’ Compensation Appeal :

Board (City of Philadelphia), :

Respondent :

O R D E R

AND NOW, this 13th day of May, 2020, the order of the Workers’ 

Compensation Appeal Board is AFFIRMED.

P. KEVIN BROBSON, Judge