IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Anthony Ovid, :

Petitioner :

: No. 333 C.D. 2018

v. :

: Submitted: August 10, 2018

Workers’ Compensation Appeal :

Board (Dolgencorp, LLC), :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE McCULLOUGH FILED: November 29, 2018

Anthony Ovid (Claimant) petitions for review from the February 22, 

2018 order of the Workers’ Compensation Appeal Board (Board) that affirmed the 

decision of a workers’ compensation judge (WCJ) granting his claim petition for a 

closed period followed by a termination. Claimant contends that the WCJ failed to 

issue a reasoned decision under section 422(a) of the Workers’ Compensation Act 

(Act).

1

 Upon review of the WCJ’s 156 findings of fact, and thorough and consistent 

credibility determinations, we will affirm. 

 

1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §834. Section 422(a) provides: 

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 

(Footnote continued on next page...)
2

On August 26, 2015, Claimant sustained a work-related injury while 

operating a stand-up forklift for Dolgencorp, LLC (Employer) in the course and 

scope of his employment. Specifically, Claimant maneuvered the forklift 

inadvertently and in such a manner that he ended up being pinned between the forklift 

and the steel from a warehouse rack, compressing his left arm and chest in the 

process. Claimant was able to release himself and dropped to the floor, due to 

difficulty breathing. After a period of seven minutes, several supervisors came to his 

aid. The supervisors transported Claimant to a medical facility, Urgent Care, where 

Claimant reported pain to his chest, neck, left shoulder, and upper back and displayed 

a laceration on his right arm. (WCJ’s Findings of Fact (F.F.) Nos. 9-15.) 

Thereafter, Claimant missed three days of work. On the second day of 

his absence, Claimant sought treatment at Reading Hospital’s Emergency Room (ER) 

for continued pain. A physical examination revealed that Claimant was positive for 

myalgia, joint swelling, and neck pain, and negative for back pain and neck stiffness, 

and his neck was noted to have a normal range of motion and was supple. Claimant 

 

(continued...)

explains the rationale for the decisions so that all can determine why 

and how a particular result was reached. The [WCJ] shall specify the 

evidence upon which the [WCJ] relies and state the reasons for 

accepting it in conformity with this section. When faced with 

conflicting evidence, the [WCJ] 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 [WCJ] 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. 
3

was diagnosed with contusions to his left and right chest and left arm, and he was 

released from the ER with ongoing restrictions. (F.F. Nos. 16-26.) 

 On September 1, 2015, Claimant returned to work in a modified duty 

position and continued to work in that positon until October 15, 2015, when it was no 

longer available. On October 15, 2015, Employer issued a notice of denial, denying 

that Claimant had sustained any work-related injury. On December 21, 2015, 

Claimant filed a claim petition, alleging that he sustained injuries to his neck, back, 

left shoulder, and head. Employer denied the material allegations and the case was 

assigned to a WCJ who held hearings. (F.F. Nos. 2-4, 27-28.) 

At the March 8, 2016 hearing, Claimant testified to the facts above and 

added that he developed headaches that appeared to be occipital in nature. At the 

September 6, 2016 hearing, Claimant testified that his left shoulder, left arm, neck, 

and head were getting worse, rather than better. Claimant stated that he had neck 

pain that travels or “shoots” up into his head and that the amount of pain has 

increased over time. According to Claimant, he is an avid weightlifter and confirmed 

that, prior to the date of injury, he had been participating in a home-based 

weightlifting program three days a week for approximately the last ten years. (F.F. 

Nos. 33, 42, 44-46, 48.) 

Claimant presented the deposition testimony of Charles Williams, M.D., 

who is board certified in anesthesiology and focuses his practice on treating patients 

in pain management. Dr. Williams reviewed a cervical MRI of Claimant that 

reflected a mild, broad-based disc protrusion to the left at C2-3 and C3-4, as well as 

disc degeneration with central herniation at C4-5, a mild to moderate protrusion to the 

left at C5-6, disc bulging at C6-7 and C7-T1, with no evidence of either fracture or 

cord compression. Dr. Williams also reviewed the results of an EMG and determined 
4

that they supported a finding of subacute C5 radiculopathy on the left, and he

attributed this condition to the work injury, specifically the broad-based protrusion at 

C5-6. Dr. Williams also documented a positive Spurling’s compression test on the 

left. (F.F. Nos. 53-54, 57-62.) 

Ultimately, Dr. Williams diagnosed Claimant with multi-level cervical 

disc displacement and herniation at C4-5 with left side radiculopathy. Dr. Williams 

relayed that, on May 18, 2016, Claimant’s then-most recent examination, Claimant 

continued to complain of neck pain with aching pain radiating into the left shoulder 

and left arm, and Dr. Williams noted tenderness to palpation, decreased range of 

motion, and limited flexion and extension. According to Dr. Williams, Claimant was 

improving overall, but had not fully recovered, and he treated Claimant with a series 

of injections, manual manipulation, and aggressive physical therapy. Dr. Williams 

stated that the injuries to Claimant’s shoulder, hands, and elbows had fully recovered

as of the May 18, 2016 examination. (F.F. Nos. 66-70.) 

During the course of his questioning, Dr. Williams opined that a

traumatic event is required to cause a disc herniation in a person who is 28 years old,

Claimant’s then current age. Dr. Williams conceded that the diagnosis provided by 

the ER doctor did not include any cervical injury and admitted that there was 

desiccation at every level from C2-T; he acknowledged that desiccation was a 

degenerative finding and that it is unusual to have such widespread desiccation in 

someone as young as Claimant. Dr. Williams did not believe that a person of 

Claimant’s age could have developed a disc herniation from general lifting, and he 

expressed the view that, although weightlifting could cause disc bulging, it could not 

cause the herniation. Dr. Williams also confirmed that the Spurling’s compression 
5

test was performed only once, when he initially examined Claimant. (F.F. Nos. 59, 

72-74, 78.)

In addition, Claimant submitted the deposition testimony of Dr. 

Christian Fras, M.D., who is a board certified orthopedic surgeon. Dr. Fras testified 

that in March 2016, Claimant’s principal complaint was neck pain, a physical 

examination revealed cervical spasm and tenderness, and a Spurling’s test was 

positive for neck pain. With respect to the EMG study that was reviewed and relied 

upon by Dr. Williams, Dr. Fras confirmed that he agreed with Dr. Williams that the 

cervical radiculopathy was directly related to the work injury. Ultimately, Dr. Fras 

diagnosed Claimant with cervical disc herniation with radiculopathy, aggravation of 

cervical degenerative disc disease, and cervical spondylosis, and stated that these 

diagnoses were directly related to the work injury. Specifically, Dr. Fras stated that, 

in his opinion, the cervical disc herniation was superimposed on Claimant’s 

preexisting degenerative disc condition and was sustained as a result of the work 

injury. Dr. Fras also provided an alternate theory indicating that, if the disc 

herniation had been preexisting, it was asymptomatic prior to the work injury and 

became symptomatic following the work accident. According to Dr. Fras, Claimant’s 

left shoulder and arm complaints were related solely to the cervical radiculopathy and 

there were no separate diagnoses related to those body parts. In his view, Dr. Fras 

did not believe that Claimant’s weightlifting activities could have had a significant 

impact on his cervical spine, indicating that it was far more likely to contribute to 

lumbar disc degeneration. (F.F. Nos. 80, 92, 96-97, 107, 109.) 

Dr. Fras testified that he last examined Claimant in June 2016, and that 

Claimant had not recovered from his work-related injuries and could not return to his 

pre-injury position. Although Dr. Fras originally prescribed Claimant a course of 
6

physical therapy, respecting Claimant’s desire to avoid surgical treatment, in June 

2016 he recommended that Claimant undergo anterior cervical decompression and 

fusion at C4-5. However, at the time of Dr. Fras’ deposition, Claimant was not 

scheduled for surgery. (F.F. Nos. 89, 99, 102.)

In rebuttal, Employer presented the deposition testimony of Stuart 

Gordon, M.D., a board certified orthopedic surgeon who performed an independent 

medical examination of Claimant on April 7, 2016. Dr. Gordon stated that 

Claimant’s primary complaint was soreness in the left side of the neck. Dr. Gordon 

testified that he performed a physical examination of Claimant and this examination 

was unremarkable from an objective basis; although the neck demonstrated a 50

percent reduction in range of motion, the test was purely subjective, and Claimant’s 

reflexes were brisk and symmetric. In addition, Dr. Gordon performed the Spurling’s 

maneuver three times, the results were all negative and no radicular complaints were 

elicited, and Claimant did not display any symptoms that would be objectively 

consistent with radiculopathy. Dr. Gordon diagnosed Claimant’s work-related 

injuries as consisting of skin lacerations, and neck, shoulder, and upper back strains,

and he opined that Claimant had fully recovered from these injuries and their residual 

effects as of April 7, 2016. (F.F. Nos. 114-116, 121, 125-126, 142, 146.) 

In rendering his opinion, Dr. Gordon stated that Claimant did not require 

cervical surgery and denounced the idea that Claimant suffers from a cervical disc 

condition or radiculopathy. In reviewing the cervical MRI, Dr. Gordon noted the 

multiple disc protrusions and a single disc herniation at C4-5, but explained that none 

of these findings represented a recent or work-related injury because there was no 

“hyper-intense” signal in the pulse sequences on the T2 weighted images. Regarding 

the EMG study, Dr. Gordon expressed his view that the test is not a reliable 
7

diagnostic tool, being open to a subjective interpretation and that, nonetheless, the 

EMG findings did not have a strong positive correlation with the cervical MRI 

because the herniation is located at the C4-5 level on the MRI while the EMG 

indicated a positive at C5, the level below. Dr. Gordon noted that neuro-compressive 

tests were completely normal and that the cervical MRI did not disclose any nerve 

root impingement or acute inflammatory process. Further, Dr. Gordon stated that 

multilevel desiccation could be expected given Claimant’s history of weightlifting

and stated that it is possible for a person of 28 years of age to have degenerative 

findings on an MRI when active in weightlifting and sports. (F.F. Nos. 127, 129-131, 

134, 137, 143, 144.)

By decision and order dated March 27, 2017, the WCJ found the 

testimony of Claimant credible in part. More specifically, the WCJ accepted 

Claimant’s testimony insofar as Claimant explained the mechanism of his injury, 

initial course of treatment, complaints of subjective pain, and “the apparent 

worsening of his complaints between the first and second hearings.” (F.F. No. 148.) 

However, the WCJ rejected as not credible the testimony that Claimant offered 

“regarding the causal relation of any of his imaging findings to the work injury or 

with regard to the source of his ongoing complaints . . . to the extent it is contradicted 

by the testimony of Dr. Gordon.” (F.F. No. 148.)

Concerning the opinions of the medical experts, the WCJ accepted their 

opinions where consistent. Inasmuch as the opinions were inconsistent or conflicted, 

the WCJ found the opinions and testimony of Dr. Gordon to be more credible and 

worthy of belief than the opinions and testimony of Drs. Williams and Fras. (F.F. 

No. 149.) 
8

In determining that Dr. Williams’ testimony was less credible than that 

of Dr. Gordon, the WCJ found that Dr. Williams, at times, provided testimony that 

was internally inconsistent or was inconsistent with and contradicted by the credible 

portions of Drs. Fras and Gordon’s testimony. The WCJ noted that Dr. Williams 

performed the Spurling’s test, a “provocative maneuver,” only at the first, initial

examination and did not repeat it thereafter. (F.F. No. 150.) 

In reviewing the testimony of Dr. Fras, the WCJ found that it was 

credible in very limited respects, but determined that the remainder was not credible. 

In discrediting the bulk of Dr. Fras’ testimony, the WCJ noted that Dr. Fras failed to 

sufficiently explain why Claimant’s symptoms “were much improved” in March 

2016 but “by the final examination in June 2016 the symptoms had returned and 

actually progressed”; that is, Dr. Fras was unable to account “for how or why 

Claimant’s symptoms suddenly accelerated months after he was removed from 

work.” (F.F. No. 151.) The WCJ further noted that Dr. Fras opined that Claimant 

suffered an aggravation of the entire cervical spine, or, in the alternative, a disc 

herniation at the C4-5; however, Dr. Fras did not explain how Claimant’s radicular 

complaints were caused by the findings on the MRI, which contained no indication of 

cervical cord compression or injury. The WCJ determined that Dr. Fras did not 

reconcile his theories of the injury with the fact that the MRI and the EMG did not 

show radiculopathy at the level of the herniated disc. Accordingly, the WCJ found 

the testimony of Dr. Fras to be less credible than the testimony of Dr. Gordon. 

In accepting the opinions of Dr. Gordon as prevailing, the WCJ noted, 

among other things, that his testimony was consistent with the ER records and other 

medical documentation which showed that, in the proximate time frame following 

Claimant’s injury, Claimant did not make any complaints related to a neck or cervical 
9

injury, he had tested negative for back and neck pain, and his neck had a normal 

range of motion and was supple. The WCJ found particularly persuasive Dr. 

Gordon’s opinions “regarding the preexisting nature of the findings present on the 

MRI and the inconsistencies between those findings and the EMG report.” (F.F. No. 

152.) The WCJ further stated that the “opinions of Dr. Gordon are consistent with his 

rather thorough and detailed physical examination.” (F.F. No. 152.) 

Based on the credible testimony of Dr. Gordon, the WCJ concluded that 

Claimant sustained work-related injuries on August 26, 2015, in the form of skin 

lacerations and neck, shoulder, and upper back strains. The WCJ further concluded, 

again based on the credible testimony of Dr. Gordon, that Claimant had fully 

recovered from these injuries on April 7, 2016. Therefore, the WCJ awarded 

Claimant benefits for the closed period of August 26, 2015, to April 7, 2016. (WCJ’s 

Conclusions of Law Nos. 2-3, 6.)2

Claimant appealed to the Board, which affirmed. 

Before this Court,3 Claimant presents an array of arguments, claiming 

that the WCJ issued a decision that was not reasoned, but was instead unreasonable, 

irrational, and illogical. Although Claimant advances his contentions under the rubric 

 

2

In addition, the WCJ granted the penalty petition of Claimant based on the unreasonable 

contest of Employer, concluding that Employer lacked a legitimate basis to issue a notice of denial 

and contest liability prior to April 7, 2016, the date on which benefits were terminated. The WCJ 

imposed a 25% penalty against all unpaid indemnity benefits and awarded attorney’s fees at an 

hourly rate less than that requested by Claimant’s counsel. Employer did not appeal any aspect of 

the WCJ’s decision. In his appeal, Claimant did not challenge the percentage of the penalty 

imposed by the WCJ or the amount of the attorney’s fees. 

3 Our scope of review is limited to determining whether constitutional rights have been 

violated, whether an error of law has been committed, or whether findings of fact are supported by 

substantial evidence. Anderson v. Workers’ Compensation Appeal Board (Penn Center for Rehab), 

15 A.3d 944, 947 n.1 (Pa. Cmwlth. 2010).
10

of the reasoned decision requirement of section 422(a) of the Act, a great deal of his 

assertions attack the WCJ’s credibility determinations. 

Initially, we note that in an original claim petition, a claimant bears the 

burden of proving all of the elements necessary to support an award of benefits. 

Potere v. Workers’ Compensation Appeal Board (Kemcorp), 21 A.3d 684, 689-90 

(Pa. Cmwlth. 2011). To show that an injury was related to employment, the claimant 

must establish a causal connection between work and the injury, and unequivocal 

medical evidence is required where it is not obvious that an injury is causally related 

to the work incident. Povanda v. Workmen’s Compensation Appeal Board (Giant 

Eagle), 605 A.2d 478, 486 (Pa. Cmwlth. 1992); Cromie v. Workmen’s Compensation 

Appeal Board (Anchor Hocking Corporation), 600 A.2d 677, 679 (Pa. Cmwlth. 

1991).

The claimant’s burden to prove a work-related injury never shifts to the 

employer and remains with the claimant throughout the pendency of the claim 

petition. Potere, 21 A.3d at 690. If the WCJ determines that the evidence supports a 

finding of disability only for a closed period, the WCJ is free to make such a finding. 

Id. Otherwise, to terminate benefits, an employer has to establish either that a 

claimant had fully recovered from his work-related disability or that any current 

disability arises from a cause unrelated to the work injury. Pryor v. Workers’ 

Compensation Appeal Board (Colin Service Systems), 923 A.2d 1197, 1205 (Pa. 

Cmwlth. 2006).

It is a fundamental tenet of workers’ compensation law that the WCJ, as 

fact-finder, has complete authority over questions of witness credibility and 

evidentiary weight. Williams v. Workers’ Compensation Appeal Board (USX Corp.-

Fairless Works), 862 A.2d 137, 143 (Pa. Cmwlth. 2004).
11

For purposes of appellate review, it is irrelevant whether 

there is evidence to support contrary findings; if substantial 

evidence supports the WCJ’s necessary findings, those 

findings will not be disturbed on appeal. As the ultimate 

fact-finder, the WCJ 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. A court may overturn a 

credibility determination only if it is arbitrary and 

capricious or so fundamentally dependent on a 

misapprehension of facts, or so otherwise flawed, as to 

render it irrational.

Verizon Pennsylvania, Inc. v. Workers’ Compensation Appeal Board (Mills), 116 

A.3d 1157, 1161 (Pa. Cmwlth. 2015).

Under section 422(a) of the Act, a WCJ must adequately explain the 

reasons for rejecting or discrediting competent evidence when conflicting evidence is 

presented. Daniels v. Workers’ Compensation Appeal Board (Tristate Transport), 

828 A.2d 1043, 1047 (Pa. 2003). In addition, the WCJ may not reject uncontroverted 

evidence without reason or for an irrational reason, but must identify such evidence 

and sufficiently explain the reasons for its rejection. Id. For witnesses testifying 

before the WCJ, it is appropriate for the WCJ to base his or her determination upon 

the demeanor of the witnesses and, in the absence of “some special circumstance,” a 

mere conclusion as to which witnesses were credible is sufficient for a reasoned 

decision. Id. at 1052-53; PPL v. Workers’ Compensation Appeal Board (Rebo), 5 

A.3d 839, 845 (Pa. Cmwlth. 2010). However, when witnesses testify only by 

deposition, the WCJ must articulate an actual objective basis for the credibility 

determination. Daniels, 828 A.2d at 1053. 

Claimant first argues that the WCJ issued an illogical and unreasoned 

decision by simultaneously finding Claimant’s testimony to be credible with respect 
12

to a worsening of his condition between the hearings and determining that he had 

fully recovered from his work-related injuries. 

This contention, however, overlooks the fact that the WCJ only accepted 

Claimant’s testimony as credible to the extent that it was not contradicted by the 

expert testimony of Dr. Gordon. The WCJ specifically rejected Claimant’s testimony 

“regarding the causal relation” and “source of his ongoing complaints.” (F.F. No. 

148.) On the other hand, the WCJ credited the opinion of Dr. Gordon that the 

multilevel desiccation and degenerative findings displayed on the MRI evidenced 

preexisting conditions, and that these conditions, along with the pain associated with 

them, could be related to Claimant’s weightlifting activities. (F.F. Nos. 130, 137, 

152.) Based on Dr. Gordon’s credible testimony, the WCJ determined that 

Claimant’s work-related injuries consisted of skin lacerations and neck, shoulder, and 

upper back strains, and that Claimant had fully recovered from these injuries as of

April 7, 2016. Consequently, even though the WCJ credited Claimant’s testimony 

that he experienced increased pain in his neck and head throughout the hearings, the 

WCJ nonetheless determined that this pain was not work-related, concluding instead 

that Claimant had fully recovered from any residual symptoms that were associated 

with his work-related injuries. As these findings are logically consistent and 

congruous in their application, we find no error on the part of the WCJ. 

Next, Claimant asserts that the WCJ’s decision was unreasonable in that 

Dr. Gordon did not know the specific details of Claimant’s weightlifting routine, e.g., 

what type of weights he used and how many pounds he lifted, and yet he determined 

that Claimant’s cervical spine injuries could possibly be attributed to weightlifting 

and not work-related trauma. Claimant contends that, in this respect, Dr. Gordon 

rendered an opinion that was speculative and not based on facts of record. 
13

This argument fails for several reasons. First, Claimant appears to 

challenge the admissibility of Dr. Gordon’s testimony on the ground that his opinion 

lacked a competent factual basis4and was not expressed with the requisite degree of 

certainty. However, there is no indication that Claimant raised these evidentiary 

issues before the WCJ or in any of the proceedings below and, as such, they are 

waived. See Riley v. Workers’ Compensation Appeal Board (DPW/Norristown State 

Hospital), 997 A.2d 382, 387 (Pa. Cmwlth. 2010). Regardless, Claimant testified that 

before the work accident, he lifted weights at a friend’s house for over 10 years, 3

times a week, for approximately an hour each session, focusing on the chest, biceps, 

and trapezius regions. (Reproduced Record (R.R.) at 446a-47a.) Under the standards 

for expert testimony, this factual foundation was sufficient to permit Dr. Gordon to 

opine as to the potential effects or consequences of Claimant’s weightlifting 

activities, despite the fact he did not know all the intricate details involving 

Claimant’s routine. See DeGraw v. Workers’ Compensation Appeal Board (Redner’s 

Warehouse Markets, Inc.), 926 A.2d 997, 1001-02 & n.4 (Pa. Cmwlth. 2007) (stating 

that, although the medical expert admitted that he did not know the size or weight of

the object the claimant was lifting or how far his arms were extended at the time of 

his injury, these omissions pertain to the weight to be accorded to his testimony, not 

its competency); see also Calex, Inc. v. Workers' Compensation Appeal Board 

(Vantaggi), 968 A.2d 822, 824-25 & 828 (Pa. Cmwlth. 2009). As a result, any 

challenge that Claimant has to the adequacy of the factual foundation to support Dr. 

 

4

See State Workmen’s Insurance Fund v. Workmen’s Compensation Appeal Board 

(Wagner), 677 A.2d 892, 895-96 (Pa. Cmwlth. 1996) (“An expert’s opinion based upon 

assumptions contrary to the established facts is worthless.”); see also Newcomer v. Workmen’s 

Compensation Appeal Board (Ward Trucking Co.), 692 A.2d 1062, 1066 (Pa. 1997) (“While an 

expert witness may base an opinion on facts of which he has no personal knowledge, those facts 

must be supported by evidence of record.”).
14

Gordon’s expert testimony is one that pertains to the weight to be afforded to that 

evidence, see DeGraw, 926 A.2d at 1001-02, which is a determination that lies within 

the exclusive province of the WCJ. 

Moreover, Claimant bore the burden of proving the length and duration 

of his work-related injuries and that his injuries were causally related to the work 

accident. Coyne v. Workers’ Compensation Appeal Board (Villanova University), 

942 A.2d 939, 945 (Pa. Cmwlth. 2008). Because Employer has no burden of proof 

on these issues, Employer’s medical experts were not required to testify to the degree 

of certainty that is imposed on Claimant’s experts.5 Instead, the standard is much 

more relaxed for defense medical experts, and Employer’s medical experts can offer 

rebuttal testimony stating that there are other “possible” causes for Claimant’s 

problems. See Jacobs v. Chatwani, 922 A.2d 950, 961 (Pa. Super. 2007) (concluding 

that defense expert’s testimony that the present symptomology “supports” a medical 

condition was stated to a sufficient degree of certainty for rebuttal purposes); Neal by 

Neal v. Lu, 530 A.2d 103, 109 (Pa. Super. 1987) (reaching the same conclusion based 

on defense expert’s testimony which opined as to a “possible” cause of the medical 

condition).6 Here, upon reviewing the findings of the cervical MRI, Dr. Gordon 

 

5 Generally, in workers’ compensation proceedings, a claimant’s medical expert has to 

render an unequivocal opinion and “must do more than testify that the claimant’s condition ‘might 

have been’ or ‘probably was’ the result of the claimant’s work.” Andracki v. Workmen's 

Compensation Appeal Board (Allied Eastern States Maintenance), 508 A.2d 624, 619 n.2 (Pa. 

Cmwlth. 1986); see Cardyn v. Workmen’s Compensation Appeal Board (Heppenstall), 534 A.2d 

1389, 1391-92 (Pa. 1987) (“Medical evidence which is less than positive or which is based upon 

possibilities may not constitute legally competent evidence for the purpose of establishing the 

causal relationship.”).

6 The rationale for this rule has been stated thusly:

(Footnote continued on next page...)
15

stated that it was not “unusual” to see these malformations on a 28-year-old 

weightlifter and opined this is a “common problem” for weightlifters, explaining that 

when one lifts weights, he/she does the “Valsalva maneuver” which increases 

“intradiscal pressure.” (R.R. at 305a-06a.) Hence, the WCJ acted within his 

discretion in finding the testimony of Dr. Gordon to be credible. 

Claimant maintains that the WCJ erred in crediting Dr. Gordon’s 

testimony because Dr. Gordon only reviewed the reports of the MRI, and did not 

personally review the images/films, and he had no understanding of Claimant’s 

specific job duties and what physical exertion they required. However, this Court has 

repeatedly held that the fact that an expert does not have all of the claimant’s medical 

records, or fails to review them or the claimant’s job description, goes to the weight 

to be given to the expert’s testimony, not its competency. DeGraw, 926 A.2d at 

1001; Samson Paper Co. v. Workers’ Compensation Appeal Board (Digiannantonio), 

834 A.2d 1221, 1224 (Pa. Cmwlth. 2003); American Contracting Enterprises, Inc. v. 

Workers’ Compensation Appeal Board (Hurley), 789 A.2d 391, 396 (Pa. Cmwlth. 

2001). Therefore, like the challenges he advanced above, Claimant is merely seeking 

 

(continued...)

Absent an affirmative defense or a counterclaim, the defendant’s case 

is usually nothing more than an attempt to rebut or discredit the 

plaintiff’s case. Evidence that rebuts or discredits is not necessarily 

proof. It simply vitiates the effect of opposing evidence. Expert 

opinion evidence, such as that offered by [the defendant] in this case, 

certainly affords an effective means of rebutting contrary expert 

opinion evidence, even if the expert rebuttal would not qualify as 

proof. In general, the admission or rejection of rebuttal evidence is 

within the sound discretion of the trial judge.

Neal by Neal, 530 A.2d at 110. 
16

to attack the credibility and weight determinations of the WCJ—determinations

which are not subject to review on appeal. 

Further, Claimant submits that the WCJ issued a decision that was not 

reasoned because Dr. Gordon was not as credible as Dr. Fras for a multitude of 

reasons. For example, Claimant argues that Dr. Gordon did not review the 

images/films of the MRI while Dr. Fras did; Dr. Gordon did not perform as many 

physical examinations of Claimant as Dr. Fras; Dr. Fras conducted more 

comprehensive exams compared to Dr. Gordon; Dr. Gordon was biased, performing

independent medical examinations for defendants in a super-majority of the cases, 

while Dr. Fras is more fair, impartial, and objective; Dr. Fras possesses greater 

qualifications and credentials than Dr. Gordon; and Dr. Gordon’s testimony had more 

inconsistencies when viewed alongside Dr. Fras’ testimony. 

Section 422(a) only requires a WCJ to issue a reasoned decision “so that 

this Court does not have to ‘imagine’ the reasons why a WCJ finds that the 

conflicting testimony of one witness was more credible than the testimony of another 

witness.” Amandeo v. Workers’ Compensation Appeal Board (Conagra Foods), 37 

A.3d 72, 76 (Pa. Cmwlth. 2012). Pursuant to section 422(a), a WCJ must articulate 

an actual objective basis for a credibility determination, in order for the decision to be 

a reasoned one which facilitates effective appellate review, and there are countless 

objective factors which may support a WCJ’s credibility determinations. Dorsey v. 

Workers’ Compensation Appeal Board (Crossing Construction Co.), 893 A.2d 191, 

194-95 (Pa. Cmwlth. 2006). Examples of such objective factors include, but are not 

limited to, situations where:

an expert witness’s opinion may be based upon erroneous 

factual assumptions; or an expert may have had less 

interaction with the subject; or the interaction was in a less 
17

timely fashion; or the expert may betray a bias or interest in 

the matter[;] an expert witness may be unqualified or less 

qualified than the opposing party’s expert; or may be 

impeached with inconsistencies or contradictions in his or 

her testimony or reports; or may be impeached in some 

other convincing fashion.

Daniels, 828 A.2d at 1053 (citations omitted).

We find that Claimant’s contentions are misplaced. Although Claimant 

has arguably listed legitimate and objective reasons, which the WCJ could have relied 

upon to determine that Dr. Gordon was not a credible expert, the WCJ made no such 

determination. Instead, the WCJ found that Dr. Gordon was credible and accepted 

his testimony as more persuasive than any conflicting testimony offered by 

Claimant’s experts, Drs. Williams and Fras. In this context, the fact that Claimant 

believes that there are objective reasons to discount Dr. Gordon’s testimony as not 

credible is of no moment. “Clearly, a WCJ’s acceptance of the medical opinion of 

one expert witness over that of another is not the basis for reversible error,” 

Southeastern Pennsylvania Transportation Authority v. Workers’ Compensation 

Appeal Board (Herder), 765 A.2d 414, 416 (Pa. Cmwlth. 2000), and section 422(a) 

“does not permit a party to challenge or second-guess the WCJ’s reasons for 

credibility determinations.” Dorsey, 893 A.2d at 195. 

Because the WCJ accepted the expert testimony of Dr. Gordon where it 

conflicted with the expert testimony of Drs. Williams and Fras, the WCJ was only 

obligated to articulate objective grounds for his decision to favor Dr. Gordon. As 

recounted above, the WCJ made detailed findings articulating the objective factors 

the WCJ relied upon to assess the credibility of Dr. Williams, Dr. Fras, and Dr. 

Gordon on an individual basis. (F.F. Nos. 149-152.) In these findings, the WCJ also 

provided a thorough comparison of the experts’ testimony and explained why he

afforded the greatest credence to the testimony of Dr. Gordon. In doing so, the WCJ
18

pointed out the strengths of Dr. Gordon’s testimony, as well as the deficiencies of the 

testimony of Drs. Williams and Fras, and all these supporting reasons are readily 

verifiable in the record. Hence, Claimant’s arguments fail. 

Finally, Claimant advances some other contentions. He posits that the 

fact his “condition had worsened as of the date of Dr. Fras’ examination of June 8, 

2016, as compared to the prior examinations . . . does not serve as a valid basis to not 

find him credible.” (Claimant’s brief at 39.) Claimant also argues that the WCJ 

“ignored and refused to genuinely consider a substantial portion of Dr. Fras’ credible 

testimony and ignored much of Dr. Gordon’s incredible testimony.” (Claimant’s 

brief at 28.) Claimant further contends that the differential diagnosis utilized by Dr. 

Fras was sound, noting that Claimant had undisputedly sustained work-related 

injuries, received a positive indication on the Spurling’s test, and the cervical MRI 

depicts conditions that cannot be refuted. 

Contrary to Claimant’s assertions, the WCJ stated an objective basis for 

finding that Dr. Fras’ testimony contained a notable shortcoming: 

Dr. Fras’ opinions become not credible in his inability to 

explain why after the March 2016 visit at which point 

Claimant’s symptoms had subsided, Claimant suddenly 

became much more symptomatic in June 2016. I note that 

on March 17, 2016, those symptoms were much improved 

and then by the final examination in June 2016 the 

symptoms had returned and actually progressed as he has

now documentary weakness and sensory changes which 

were not present during either of the first two examinations. 

Dr. Fras provided no explanation for how or why 

Claimant’s symptoms suddenly accelerated months after he 

was removed from work.

(F.F. No. 151.) 

Undoubtedly, a physician’s failure to adequately account for a dramatic 

change in a claimant’s physical status is a legitimate ground upon which to question 
19

the credibility and weight of the physician’s testimony. In the eyes of a WCJ, this 

deficiency can reasonably be construed to reflect or suggest that the physician 

misapprehended the nature or extent of a claimant’s injuries and, also, their 

relationship to the accident or event that allegedly caused those injuries. 

Moreover, “[s]ection 422(a) does not require the WCJ to discuss all of 

the evidence presented”; rather, “the WCJ is only required to make the findings 

necessary to resolve the issues raised by the evidence and relevant to the decision.”

Dorsey, 893 A.2d at 194 n.4. Here, the WCJ provided a comprehensive summation 

of Dr. Fras’ testimony and medical theories. (F.F. Nos. 80-114.) Given the detailed 

and verifiable reasons the WCJ provided for deeming those opinions to be less 

credible than that proffered by Dr. Gordon, (F.F. Nos. 150, 152), there is nothing in 

the record to support the notion that the WCJ did not “genuinely consider” the 

testimony of Dr. Fras, as argued by Claimant. (Claimant’s brief at 28.) 

As a concluding matter, Claimant goes to great lengths in an attempt to 

establish that Dr. Fras employed superior methodological reasoning to support his 

differential diagnosis. However, these issues contain a matter that lies at the core of a 

credibility determination, which, as stated previously, is for the WCJ to make. See 

Parkview Court Associates v. Delaware County Board of Assessment Appeals, 959 

A.2d 515, 521 (Pa. Cmwlth. 2008) (concluding that an argument challenging an 

expert’s methodology “essentially seeks a new credibility finding . . . which is 

inappropriate on appeal.”); Church Street Associates v. County of Clinton, 959 A.2d 

490, 495 (Pa. Cmwlth. 2008) (concluding that a fact finder’s “resolution of the 

conflicts within the two experts’ testimony, as well as the weight assigned 

respectively thereto and the credibility determinations thereof, control on appeal.”).
20

Having reviewed Claimant’s arguments on appeal in this matter, the 

decisions of the WCJ and the Board, and the applicable law, this Court can discern no 

error that would require us to upset the determinations and orders of the tribunals 

below. 

Accordingly, we affirm. 

________________________________

PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Anthony Ovid, :

Petitioner :

: No. 333 C.D. 2018

v. :

:

Workers’ Compensation Appeal :

Board (Dolgencorp, LLC), :

Respondent :

ORDER

AND NOW, this 29th day of November, 2018, the February 22, 2018 

order of the Workers’ Compensation Appeal Board is affirmed. 

________________________________

PATRICIA A. McCULLOUGH, Judge