IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Matthew Roy Carlson, :

Petitioner :

 :

v. : No. 1198 C.D. 2019

 : 

St. Luke’s Quakertown Hospital :

(Workers’ Compensation Appeal :

Board), :

Respondent :

Matthew Roy Carlson, :

Petitioner :

 :

v. : No. 962 C.D. 2020

 : Submitted: November 20, 2020 

St. Luke’s Quakertown Hospital :

(Workers’ Compensation Appeal :

Board), :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COHN JUBELIRER FILED: December 22, 2020

Matthew Roy Carlson (Claimant) petitions for review of the August 7, 2019 

identical Orders of the Workers’ Compensation (WC) Appeal Board (Board), 

which affirmed the identical July 2, 2018 and July 6, 2018 Decisions of a WC 

Judge (WCJ) denying St. Luke’s Quakertown Hospital’s (Employer) First Petition 
2

to Terminate Compensation Benefits (Termination Petition) and Claimant’s 

Petition to Review Compensation Benefits (Review Petition), but granting 

Employer’s Second Termination Petition and Petition to Suspend Compensation 

Benefits (Suspension Petition).

1

 Before this Court, Claimant essentially challenges 

the WCJ’s decision to allow litigation of the Second Termination Petition and 

Suspension Petition before issuing a decision on the First Termination Petition and 

the Review Petition, and argues that because of the procedural posture, he was not 

aware if the higher evidentiary burden required by Lewis v. Workers’ 

Compensation Appeal Board (Giles & Ransome, Inc.), 919 A.2d 922, 926 (Pa. 

2007), would apply. In Lewis, our Supreme Court determined that “where there 

have been prior petitions to modify or terminate benefits, the employer must 

demonstrate a change in physical condition since the last disability determination.” 

Id. Discerning no error, we affirm.

I. Factual Background and Procedure

On November 4, 2014, while employed as a magnetic resonance imaging 

(MRI) technologist for Employer, Claimant sustained a low back injury during the 

transfer of a patient from a wheelchair to an MRI table. Specifically, Claimant was 

1 The Board circulated identical Orders, one appearing at Appeal Case No. A18-0795 and 

the second at Appeal Case No. A18-0796. Claimant’s Petition for Review filed at No. 1198 C.D. 

2019 identified only the Board’s Order entered at Appeal Case No. A18-0795 as the Order to be 

reviewed. However, upon review of the filings at No. 1198 C.D. 2019, it appeared to the Court 

that Claimant sought review of both of the Board’s identical Orders. By Order dated September 

3, 2020, the Court ordered that the filing date of the Petition for Review at No. 1198 C.D. 2019 

would be preserved should Claimant file an additional petition for review of the Board’s Order at 

Appeal Case No. A18-0796. In response, Claimant filed a second Petition for Review at No. 962 

C.D. 2020. By Order dated November 17, 2020, the Court consolidated the two Petitions for 

Review. 
3

injured while catching a falling patient. Employer filed a Notice of Temporary 

Compensation Payable on November 24, 2014, identifying Claimant’s injury as 

low back strain and providing disability compensation at a weekly rate of $932.00. 

The Notice of Temporary Compensation Payable converted to a Notice of 

Compensation Payable (NCP) by operation of law. 

A. First Termination Petition and Review Petition

Employer filed its First Termination Petition on June 12, 2015, therein 

alleging that based upon the independent medical examination (IME) performed by

Scott Naftulin, D.O., as of March 2, 2015, Claimant had fully recovered from the 

November 4, 2014 injury. (No. 1198 C.D. 2019 Certified Record (C.R.) Item 2.) 

Claimant filed an Answer denying that allegation and requesting unreasonable 

contest attorney’s fees in accordance with Section 440 of the WC Act,

2 77 P.S. 

§ 996. (C.R. Item 4.) On August 11, 2015, Claimant filed the Review Petition 

seeking to alter the NCP’s description of his injury to include “aggravation of 

lumbar degenerative disc disease injury.” (C.R. Item 5.) Employer filed an 

Answer denying that the description of Claimant’s injury should be altered in that 

way. (C.R. Item 7.) The matters proceeded to a hearing before a WCJ. 

In support of its First Termination Petition and in opposition to the Review 

Petition, Employer presented the deposition testimony of Dr. Naftulin,

3 who is 

licensed to practice medicine in the Commonwealth of Pennsylvania and is board 

certified in physical medicine and rehabilitation, IMEs, family practice, and pain 

2 Act of June 2, 1915, P.L. 736, as amended, added by Section 3 of the Act of February 8, 

1972, P.L. 25. 

3 Dr. Naftulin’s November 2, 2015 deposition testimony can be found on pages 44a-57a 

of the reproduced record and is summarized in finding of fact 10. 
4

medicine. During his testimony, Dr. Naftulin noted that Claimant’s medical 

history revealed extensive previous back issues, including a “lumbosacral fusion,” 

a diagnosis of “failed back syndrome,” a disc herniation, and a diagnosis of 

degenerative disc disease, all of which predated the November 4, 2014 injury at 

issue. (Nov. 2, 2015 Deposition (Dep.) Transcript (Tr.) at 14, 17, 23-24; WCJ 

Decisions, Finding of Fact (FOF) ¶ 10(c).) Dr. Naftulin stated that the symptoms 

of which Claimant complained at the examination were similar to the symptoms 

Claimant experienced with his preexisting condition before the injury at issue. 

(FOF ¶ 10(g).) Based upon his March 2, 2015 examination of Claimant and his 

review of Claimant’s medical history and records, Dr. Naftulin opined that 

Claimant had fully recovered from the November 4, 2014 injury as of March 2, 

2015. (Id. ¶ 10(h).) Dr. Naftulin explained his reasoning as follows:

[T]he mechanism of [the November 4, 2014] injury would be a 

plausible cause for the lumbar sprain and strain. But [Claimant’s]

clinical presentation at the time of my examination was consistent 

with [Claimant’s] preexisting conditions as documented throughout 

[Claimant’s medical] records . . . . And the information provided, 

including imaging studies done both prior and subsequent to the work 

injury, revealed no material change or aggravation of his preexisting 

condition. And without objective evidence of the ongoing lumbar 

strain/sprain that was accepted, it was felt that [Claimant’s] condition 

was fully explained by [Claimant’s] preexisting condition . . . . 

(Nov. 2, 2015 Dep. Tr. at 30-31.) When asked specifically whether the November 

4, 2014 injury aggravated Claimant’s preexisting condition, as Claimant alleged in 

his Review Petition, Dr. Naftulin again opined that it did not, explaining 

“[i]maging studies . . . done before and after the [November 4, 2014] injury really 

revealed no substantial change” to support the alleged aggravation of Claimant’s 

preexisting condition. (Id. at 31-32.) 
5

Claimant offered his own testimony,

4 as well as the deposition testimony of 

one of his treating physicians, Nirav Shah, M.D., in opposition to the First 

Termination Petition and in support of the Review Petition. Claimant testified that 

on November 4, 2014, he was transferring a patient from a wheelchair to an MRI 

table when she began to fall. (FOF ¶ 5(a-b).) Claimant stated that he was injured 

while catching the patient. (Id.) According to Claimant, he has not fully recovered 

from the November 4, 2014 injury and is still in pain from that injury. (Id. 

¶ 5(i)(c).) Claimant testified that he did not believe the November 4, 2014 injury 

worsened or aggravated his preexisting symptoms or conditions. (Jan. 25, 2017 

Hr’g Tr. at 18.) Rather, the injury at issue is to a different part of his back than his 

preexisting back conditions. (FOF ¶ 5(i)(d).)

Dr. Shah,

5 who is licensed in the Commonwealth of Pennsylvania and is 

board certified in neurosurgery, testified that Claimant’s medical history and 

records reveal an “extensive back history,” including undergoing back surgery in 

2013. (Feb. 10, 2016 Dep. Tr. at 8; FOF ¶ 8(b).) Based upon Claimant’s medical 

history and records, as well as Dr. Shah’s two physical examinations of Claimant, 

Dr. Shah opined that as a result of the November 4, 2014 injury, Claimant suffered 

from an “aggravation of his pre[]existing lumbar condition with significant 

aggravation of his low back pain, and radiculopathy for the lumbar, as well as new 

onset thoracic pain with associated thoracic radiculopathy.” (Feb. 10, 2016 Dep. 

4 Claimant testified before a WCJ on four different occasions: November 18, 2015; 

January 25, 2017; March 20, 2017; and August 10, 2017. Claimant’s testimony can be found on 

pages 174a-255a of the reproduced record and is summarized in findings of fact 5, 5(i), 6, and 7. 

The WCJ’s Decisions contain two number 5s and two number 11s, and we will identify the 

second of each as 5(i) and 11(i). 

5 Dr. Shah’s February 10, 2016 deposition testimony can be found on pages 76a-145a of 

the reproduced record and is summarized in finding of fact 8. 
6

Tr. at 14.) Dr. Shah agreed that while an MRI taken after the November 4, 2014 

injury revealed no changes from an MRI taken before the November 4, 2014 

injury, he explained that “[y]ou do not have to have an anatomical change on an 

MRI to diagnose an aggravation injury.” (Feb. 10, 2016 Dep. Tr. at 14-15.) Dr. 

Shah concluded that Claimant could not return to his pre-injury position and has a 

permanent partial disability from the November 4, 2014 injury. (Id. at 15-16, 18-

19; FOF ¶ 8(f).) 

The parties submitted briefs in support of their positions, and the record was 

closed on the First Termination Petition and Review Petition. However, before 

WCJ Doneker entered a decision on the First Termination Petition, the parties 

reached a tentative settlement agreement. Then, WCJ Doneker retired before the 

tentative settlement agreement was approved, and the matter was reassigned to 

WCJ Doman on October 18, 2016. The tentative settlement agreement was listed 

as a potential Petition for Approval of a Compromise and Release Agreement 

before WCJ Doman. This changed at a hearing held on January 25, 2017, where 

the parties indicated that the Petition for Approval of a Compromise and Release 

Agreement could be marked as withdrawn, as the tentative settlement agreement 

was no longer agreeable, and the parties would proceed to a decision on 

Employer’s First Termination Petition and Claimant’s Review Petition. (Jan. 25, 

2017 Hr’g Tr. at 5.) 

B. Suspension Petition 

On January 4, 2017, Employer offered Claimant a modified-duty position 

“assembling admission packets,” at a wage higher than Claimant’s pre-injury 

wage. (C.R. Item 32.) Claimant returned to work in that capacity on January 18, 
7

2017, working full time. After working three weeks in that position, Claimant 

presented a doctor’s note restricting him to four hours of work per day. Claimant’s 

hours were subsequently reduced from eight to four hours per day as a result of the 

doctor’s note. Thereafter, Employer filed the Suspension Petition seeking to 

suspend Claimant’s WC benefits as of January 18, 2017, stating that “[C]laimant 

was offered an opportunity to return to work in a modified[-]duty position.” 

(Supplemental Reproduced Record (S.R.R.) at 266b.) In support of its Suspension 

Petition, Employer submitted the deposition testimony of two of its employees. 

Employer presented the deposition testimony of its WC administrator,6 who 

testified that Claimant was offered “a full-time sedentary job as an admissions

packet assembler,” Claimant returned to work in that position at a wage higher 

than his pre-injury wage, and “he had no problem with [] Claimant’s work” in that 

position. (FOF ¶ 11(i).) Employer also presented the deposition testimony of 

Employer’s network director for volunteer services,7 who testified that “she was 

involved in locating the position to which [Claimant] returned.” (Id. ¶ 12.) She 

also testified that Claimant presented a doctor’s note, dated June 2015, on 

February 10, 2017, stating Claimant could only work four hours a day. (Id.) 

During his testimony, Claimant confirmed he returned to work in this 

position, but explained he began increasing his pain medications after three weeks, 

which led him to present the doctor’s note restricting his work to four hours per 

day. (Id. ¶ 6.) He further testified that, as of August 10, 2017, he had received a 

raise and continues to work 20 hours per week. (Id. ¶ 7.)

6 The testimony of Employer’s WC administrator can be found on pages 138b-58b of the 

supplemental reproduced record and is summarized in finding of fact 11(i).

7 The testimony of Employer’s network director for volunteer services can be found on 

pages 187b-202b of the supplemental reproduced record and is summarized in finding of fact 12. 
8

C. Second Termination Petition

Employer filed the Second Termination Petition on May 23, 2017. The 

parties litigated the Second Termination Petition during the pendency of the First 

Termination Petition and Review Petition. While litigating the Second 

Termination Petition, Employer allegedly filed seven Notification of 

Suspension/Modification Petitions, to which Claimant responded by filing 

Challenge Petitions. The WCJ eventually issued an interlocutory order on 

September 25, 2017, confirming Employer’s obligation to pay partial disability 

benefits. (Sept. 25, 2017 Order.)

In the Second Termination Petition Employer alleged that, based upon a 

second IME performed by Dr. Naftulin, Claimant had fully recovered from the 

work-related low back strain and was capable of returning to work as of May 16, 

2017. (S.R.R. at 269b.) As support for its Second Termination Petition, Employer 

submitted the testimony of Dr. Naftulin from a second deposition.8 At the second 

deposition, Dr. Naftulin testified that he performed a second IME of Claimant on 

May 16, 2017. Based upon that examination and his review of Claimant’s medical 

records, Dr. Naftulin opined that Claimant was fully recovered from the low back 

strain resulting from the November 4, 2014 incident as of May 16, 2017, and did 

not require further treatment. (Sept. 7, 2017 Dep. Tr. at 12, 14; FOF ¶ 11(b).) This 

is based upon Dr. Naftulin’s conclusion that there is no anatomical explanation for 

Claimant’s continued complaints of symptoms relating to the November 4, 2014 

injury. (Sept. 7, 2017 Dep. Tr. at 24-26; FOF ¶ 11(c).) When asked whether 

Claimant could return to work in the same capacity as before the injury at issue, 

8 Dr. Naftulin’s testimony from the second deposition can be found on pages 267a-318a 

of the reproduced record and is summarized in finding of fact 11. 
9

Dr. Naftulin testified that Claimant “could return to his pre-injury level of activity, 

including work without restriction.” (Sept. 7, 2017 Dep. Tr. at 15.) When asked 

by Claimant’s counsel whether “there [was] any significant change in [Claimant’s] 

condition” between his first and second IME, Dr. Naftulin responded that “[t]he 

records suggest no significant change, chronic ongoing pain complaints, although 

[Claimant’s] clinical evaluation or physical examination was somewhat different 

between the two.” (Id. at 50.) 

In opposition to the Second Termination Petition, Claimant submitted the 

testimony of Dr. Shah from a second deposition.9 At the second deposition, Dr. 

Shah testified that he examined Claimant for a third time on December 5, 2017, 

and based upon his examination, his diagnosis remained that Claimant suffers from 

an “aggravation injury to the lower back, thoracic herniations as well as 

posttraumatic spasm and mechanical back pain.” (Dec. 11, 2017 Dep. Tr. at 11; 

FOF ¶ 9(a).) As he did in his first deposition, Dr. Shah opined that Claimant was 

not capable of returning to work in his previous capacity as an MRI technician and 

could work a modified position on a part-time basis. (Dec. 11, 2017 Dep. Tr. at 

12-13; FOF ¶ 9(c).) 

D. WCJ’s Decisions

The WCJ issued two identical Decisions on July 2, 2018, and July 6, 2018,

under two different dispute numbers,

10 in which the WCJ adjudicated the various 

petitions. The WCJ found Dr. Naftulin, Claimant, and Dr. Shah each to be credible 

9 Dr. Shah’s testimony from the second deposition can be found on pages 338a-94a of the 

reproduced record and is summarized in finding of fact 9. 

10 The First Termination Petition and the Review Petition were filed under one dispute 

number while the remaining petitions in this case were filed under a different dispute number. 
10

in part. The WCJ found Dr. Naftulin’s testimony not credible with respect to his 

testimony that “Claimant was completely recovered as of . . . March 2, 2015.” 

(FOF ¶ 13.) Instead, the WCJ found Claimant and Dr. Shah credible to the extent 

they testified that Claimant was not completely recovered as of March 2, 2015. 

(Id. ¶ 14.) The WCJ based this finding largely on “the relative recentness of the 

injury” to March 2, 2015. (Id.) However, the WCJ found Dr. Naftulin credible in 

all other respects, including that Claimant’s continued medical issues after May 16, 

2017, were a result of his preexisting condition and not the November 4, 2014 

injury. As such, the WCJ accepted Dr. Naftulin’s opinion that Claimant had 

recovered from the November 4, 2014, injury, which was limited to the low back 

strain and did not aggravate his preexisting conditions, as of May 16, 2017. The 

WCJ reasoned that the results of objective diagnostic tests, as set forth in 

Claimant’s medical records, supported Dr. Naftulin’s opinion that Claimant’s 

continued symptoms were a result of Claimant’s long-standing preexisting 

conditions. (Id. ¶ 13.) The WCJ also accepted Dr. Naftulin’s opinion that 

“Claimant was capable of performing the work that was available to him for eight 

hours per day.” (Id. ¶ 15.) The WCJ did not credit Claimant and Dr. Shah to the 

extent they testified that “Claimant continued to suffer from the work injury as of

May 16, 2017[,]” or that he could not work more than four hours per day in light of 

Dr. Naftulin’s credible testimony. (Id. ¶ 14.) Based on these findings, the WCJ 

denied Employer’s First Termination Petition and Claimant’s Review Petition, but

granted Employer’s Second Termination Petition and Suspension Petition. 
11

E. Board’s Opinion

Claimant appealed the WCJ’s Decision to the Board. Relevant to this 

appeal, Claimant argued that the WCJ erred in granting the Second Termination 

Petition because Employer did not demonstrate a change in Claimant’s physical 

condition as required by Lewis. Claimant also asserted that the Second 

Termination Petition was barred by res judicata pursuant to Bechtel Power 

Corporation v. Workmen’s Compensation Appeal Board (Miller), 452 A.2d 286 

(Pa. Cmwlth. 1982).11 Additionally, Claimant argued that the WCJ erred in 

denying the Review Petition. Specifically, Claimant argued that the WCJ erred by 

not adequately explaining why he did not credit Dr. Shah’s testimony that 

Claimant suffered injuries beyond the low back strain described in the NCP. 

The Board affirmed. In concluding that Lewis was inapplicable, the Board 

reasoned that since the First and Second Termination Petitions were adjudicated in 

the same July 2, 2018 and July 6, 2018 Decisions, there was no prior decision; 

thus, Lewis’s requirement that an employer establish a change in physical 

condition in any subsequent termination petitions was not triggered. (Board’s 

Opinion at 6.) Similarly, with respect to res judicata, the Board determined that 

since a decision was not issued on the First Termination Petition prior to the July 2, 

2018 and July 6, 2018 Decisions granting the Second Termination Petition, “res 

judicata is not applicable.” (Id. at 7.) The Board also determined that the rule set 

forth in Bechtel did not apply in this case because Employer was not disputing the 

11 In Bechtel, this Court held that an employer that has filed an appeal of a WCJ’s 

decision granting WC benefits may not file a termination petition until a decision on the appeal 

of the WCJ’s decision granting benefits is issued. 452 A.2d at 287-88. We reasoned that to 

allow an employer to file a termination petition while an appeal of a WCJ’s decision granting 

WC benefits was pending would allow the employer to both attack a finding of disability while 

at the same time argue the disability ceased. Id. 
12

initial disability claim or making inconsistent arguments. (Id. at 7-8.) As to the 

WCJ’s decision not to credit Dr. Shah’s testimony, the Board concluded that the 

WCJ was entitled to credit “in whole or in part a medical expert as he deems fit, so 

long as the WCJ provides objective reasons for his credibility determinations.” 

(Id. at 8.) Citing the fact that the WCJ “explained that Dr. Naftulin’s testimony 

that Claimant’s work injury was limited to a lumbar strain/sprain was more 

credible than Dr. Shah’s opinion that Claimant had sustained aggravations to his 

preexisting [] conditions,” the Board determined the WCJ provided an adequate 

objective reason for his credibility determination because Dr. Naftulin’s testimony 

was supported by Claimant’s medical records. (Id. at 9.) 

Claimant then filed the instant Petitions For Review.

12

II. Discussion

In his brief, Claimant argues that he was wrongfully forced to contest the 

Second Termination Petition during the pendency of the First Termination Petition 

and Review Petition because a decision on those petitions languished after the 

retirement of WCJ Doneker.13 Claimant submits that “it was impossible for [him] 

12 “Our scope of review of the Board’s decision[s] is limited to determining whether an 

error of law was committed, whether necessary findings of fact are supported by substantial 

evidence, or whether constitutional rights were violated.” Virgo v. Workers’ Comp. Appeal Bd. 

(Cnty. of Leigh-Cedarbrook), 890 A.2d 13, 17 n.8 (Pa. Cmwlth. 2005). 

13 Employer argues that Claimant has not preserved any issues for our review. 

Claimant’s Petitions for Review filed with this Court list the following two issues for our review: 

(1) whether “[t]he [WCJ’s] decision to allow the re-litigation of a [S]econd Termination Petition 

before issuing a decision on the [F]irst Termination Petition and Review Petition was wrong as a 

matter of law because it forced the parties to re-litigate the same issues” and (2) whether “[t]he 

[WCJ’s] decision to deny the Review Petition was wrong as a matter of law because it was not 

supported by any of the medical evidence of record.” (Claimant’s Petitions for Review at 5-6.) 

In his brief to this Court, Claimant presents a single issue for review: whether “the [Board] erred 

(Footnote continued on next page...)
13

_____________________________

(continued...)

as a matter of law when it failed to apply Lewis and reverse the WCJ’s Decision[s].” (Claimant’s 

Brief at 12.) Employer contends that Claimant has waived review of the two issues presented in 

his Petitions for Review by failing to develop those issues in his brief. Additionally, Employer 

contends Claimant has waived review of the single issue raised in his brief for failing to include 

that issue in his Petitions for Review. 

A petition for review filed in our appellate jurisdiction is to include, among other things, 

“a general statement of the objections to the order or other determination.” Pennsylvania Rule of 

Appellate Procedure 1513(d)(5), Pa.R.A.P. 1513(d)(5). However, under this Rule, “the omission 

of an issue from the statement shall not be the basis for a finding of waiver if the court is able to 

address the issue based on the certified record.” Id. (emphasis added). In addition, “[n]o 

question will be considered unless it is stated in the statement of questions involved” section of a 

party’s brief “or is fairly suggested thereby.” Pennsylvania Rule of Appellate Procedure 

2116(a), Pa.R.A.P. 2116(a). Further, an appellate brief is to “be divided into as many parts as 

there are questions to be argued.” Pennsylvania Rule of Appellate Procedure 2119(a), Pa.R.A.P. 

2119(a). Thus, an issue raised in a petition for review, but not addressed either in the statement 

of questions involved or argument section of the petitioner’s brief, is waived. Muretic v. 

Workers’ Comp. Appeal Bd. (Dep’t of Labor & Indus.), 934 A.2d 752, 758 (Pa. Cmwlth. 2007). 

Claimant raised two issues in his Petitions for Review, and while the issue raised in his 

brief is not phrased exactly as either of these issues, the first issue raised in Claimant’s Petitions

for Review and the issue in his brief can both be broadly understood as challenging Employer’s 

litigation of a Second Termination Petition before a determination on the First Termination

Petition has been issued. This issue was addressed by the Board in its Opinion and we find it is 

properly before us. 

While Claimant’s Petitions for Review also questioned whether the WCJ’s decision to 

deny the Review Petition was supported by substantial evidence, Claimant did not develop that 

argument in his brief and so it is waived. Id. at 758. Had it not been waived, we would have 

concluded that the WCJ’s Decisions were supported by substantial evidence. “Substantial 

evidence is such relevant evidence a reasonable mind might accept as adequate to support a 

conclusion.” Wawa v. Workers’ Comp. Appeal Bd. (Selter), 951 A.2d 405, 407 n.4 (Pa. Cmwlth. 

2008). Claimant’s Review Petition alleged that the description of his injury in the NCP was 

incorrect as it failed to include the aggravation of his preexisting conditions. Dr. Naftulin, 

Employer’s expert, testified that the November 4, 2014 injury was limited to low back 

sprain/strain and that this injury did not aggravate Claimant’s preexisting conditions. (Nov. 2, 

2015 Dep. Tr. at 31-32.) Dr. Shah, Claimant’s expert, testified that the November 4, 2014 injury 

did aggravate Claimant’s preexisting conditions. (Feb. 10, 2016 Dep. Tr. at 14.). The WCJ 

credited Dr. Naftulin’s testimony that the November 4, 2014 injury did not aggravate Claimant’s 

preexisting conditions, explaining that Dr. Naftulin’s testimony was supported by diagnostic 

tests performed before the November 4, 2014 injury. (FOF ¶ 13.) In WC cases, WCJs are free 

to credit or reject, in whole or in part, expert testimony. Clear Channel Broad. v. Workers’ 

Comp. Appeal Bd. (Perry), 938 A.2d 1150, 1157 (Pa. Cmwlth. 2007). “If the WCJ did not 

(Footnote continued on next page...)
14

to know which evidentiary burden would apply to the Employer’s [S]econd 

Termination Petition because [the] WCJ [] did not circulate a decision” on the First 

Termination Petition or Review Petition “despite the record closing in January 

2017” and that “[t]his uncertainty prevented [] Claimant from adequately raising a 

legal defense.” (Claimant’s Brief (Br.) at 13.) Because a decision was not issued 

on the First Termination Petition and Review Petition before the filing and 

litigation of the Second Termination Petition, Claimant contends he did not know 

if the additional evidentiary burden required by Lewis would apply or what the 

description of the injury would be. Claimant asserts that “[p]arties cannot be left to 

guess what their evidentiary burden requires them to prove” and that “[t]his case 

demonstrates the ill effects that can arise from a [WCJ]’s failure to issue a timely

decision.” (Id. at 14.) 

Employer responds that, unlike the employer in Lewis, it was not engaged in 

the serial prosecution of termination petitions, but “[r]ather, [it] prosecuted two 

Termination Petitions – alleging two dates of full recovery – simultaneously during 

the course of a single proceeding before the WCJ.” (Employer’s Br. at 47 

(emphasis omitted).) Therefore, because there was no adjudication of any 

termination petition before the July 2, 2018 and July 6, 2018 Decisions 

adjudicating both the First and Second Termination Petitions were issued, the 

change in circumstances requirement set forth in Lewis is not applicable in the 

present matter. Additionally, Employer argues that even if Lewis is applicable, 

_____________________________

(continued...)

actually observe the witnesses’ demeanor, the WCJ must provide some articulation of the 

objective basis for [the WCJ’s] credibility determinations.” Id. Here, the WCJ credited Dr. 

Naftulin’s deposition testimony that the November 4, 2014 injury did not aggravate Claimant’s

preexisting conditions and provided an objective basis for doing so. This constitutes substantial 

evidence.
15

Employer established through Dr. Naftulin’s second deposition testimony the 

requisite change in Claimant’s condition between March 2, 2015, the first alleged 

date of recovery, and May 16, 2017, the date on which the WCJ found Claimant to 

have recovered. Employer asserts that “[a] comparison of Dr. Naftulin’s March 2, 

2015 and May 16, 2017 examinations, confirms [C]laimant’s two very different 

physical presentations.” (Id. at 49.) In its brief, Employer sets forth a “Table of 

Comparison,” which highlights changes in Claimant’s physical condition between 

the two IMEs. (Id. at 49-52.) Employer contends that Claimant’s “counsel 

attempted to establish that there was no difference in [C]laimant’s physical 

presentation from March 2, 2015[,] to May 16, 2017[,]” during Dr. Naftulin’s 

second deposition in order to thwart the Second Termination Petition through an 

application of Lewis. (Id. at 48.)

Upon review, we conclude the Board did not err in determining that Lewis is 

inapplicable to the present matter. Section 413 of the WC Act provides: “A 

[WCJ] . . . may, at any time, modify, reinstate, suspend, or terminate a notice of 

compensation payable . . . upon petition filed by either party . . . , [and] upon proof 

that the disability of an injured employe has increased, decreased, recurred, or has 

temporarily or finally ceased, or that the status of any dependent has changed.” 77 

P.S. § 772. To prevail

[o]n a termination petition, an employer bears the burden of proving 

by substantial evidence that a claimant’s disability ceased, or any 

remaining conditions are unrelated to the work injury. An employer 

may satisfy this burden by presenting unequivocal and competent 

medical evidence of claimant’s full recovery from [his] work-related 

injuries.

Westmoreland Cnty. v. Workers’ Comp. Appeal Bd. (Fuller), 942 A.2d 213, 217 

(Pa. Cmwlth. 2008) (citations omitted). In Lewis, our Supreme Court examined an 
16

employer’s burden of proof when litigating a termination petition subsequent to the 

denial of a prior termination petition. 

At issue in Lewis was “whether an employer must demonstrate a change in a 

claimant’s physical condition since the preceding disability adjudication in order to 

bring a petition to terminate or modify benefits due to a decrease in physical 

disability.” 919 A.2d at 925. The Court determined that “where there have been 

prior petitions to modify or terminate benefits, the employer[,]” in a second or 

subsequent petition to terminate benefits, “must demonstrate a change in physical 

condition since the last disability determination.” Id. at 926 (emphasis added). 

The Court reasoned that “[a]bsent this requirement[,] ‘a disgruntled employer (or 

claimant) could repeatedly attack what he considers an erroneous decision of a 

[WCJ] by filing petitions based on the same evidence ad infinitum, in the hope that 

one [WCJ] would finally decide in [the employer’s] favor.’” Id. (quoting Dillon v. 

Workmen’s Comp. Appeal Bd. (Greenwich Collieries), 640 A.2d 386, 389 (Pa. 

1994)). 

Here, there was an unusual procedural progression in the litigation. 

Employer filed its First Termination Petition on June 12, 2015, and Claimant filed 

a Review Petition. After the record was closed, the parties reached a tentative 

settlement agreement and then the WCJ retired. Thereafter, a Petition for 

Approval of a Compromise and Release Agreement was listed before the new 

WCJ. At the hearing, the parties informed the WCJ that settlement was no longer 

an option and that they would proceed to a decision. Before a decision on the First 

Termination Petition was issued, Employer filed a Second Termination Petition on 

May 23, 2017, and then filed a Suspension Petition seeking suspension of 

Claimant’s benefits as of January 18, 2017. This resulted in the parties litigating
17

the Second Termination Petition during the pendency of the First Termination 

Petition and Review Petition. Also during this time, Employer allegedly filed 

seven Notification of Suspension/Modification Petitions, to which Claimant 

responded by filing Challenge Petitions. The WCJ ultimately issued an 

interlocutory order on September 25, 2017, confirming Employer’s obligation to 

pay partial disability benefits. (Sept. 25, 2017 Order.) The WCJ simultaneously 

adjudicated the First and Second Termination Petitions, the Review Petition, and 

the Suspension Petition in the identical Decisions issued on July 2, 2018, and July 

6, 2018. Therein, the WCJ rejected Dr. Naftulin’s testimony that Claimant had 

recovered from the November 4, 2014 injury by March 2, 2015, while accepting

Dr. Naftulin’s opinion that Claimant had recovered from the November 4, 2014 

injury as of May 16, 2017. Accordingly, the WCJ denied the First Termination 

Petition and granted the Second Termination Petition. As there had not been a 

determination of the termination or modification petitions prior to the WCJ’s July 

2, 2018 and July 6, 2018 Decisions, technically the requirement set forth in Lewis

that an employer “must demonstrate a change in physical condition since the last 

disability determination” is not applicable in this case. 919 A.2d at 926

(emphasis added). 

Further, this case does not illustrate the concern raised by the Supreme Court 

in Lewis, that employers may continuously file termination petitions based on the 

same evidence “in the hope that one [WCJ] would finally decide in the 

[employer’s] favor.” Id. Since there was no determination on the First 

Termination Petition, or any other termination or modification petition, before the 

filing of the Second Termination Petition, Employer could not have been seeking a 

different result. We also note that Employer’s First and Second Termination
18

Petitions were not identical. The first alleged a recovery date of March 2, 2015,

and presented Dr. Naftulin’s first IME and his first deposition testimony as 

support. Employer’s Second Termination Petition alleged a recovery date of May 

16, 2017, and presented Dr. Naftulin’s second IME and his second deposition 

testimony as support. Thus, the Second Termination Petition not only alleged a 

different recovery date, which was nearly two years later than the date of recovery 

alleged in the First Termination Petition, but was also supported by new evidence. 

Therefore, this matter does not present the situation where an employer is 

attempting to continually file termination “petitions based upon the same evidence

ad infinitum” in order to harass the claimant or obtain a more favorable result.14 Id. 

We recognize that because of numerous factors, a decision was not issued 

regarding the First Termination Petition and the Review Petition before Claimant 

was required to litigate the Second Termination Petition, and that this was 

challenging. However, we are not persuaded by Claimant’s argument that he was 

prejudiced by not knowing which evidentiary burden would apply to the Second 

14 Even if Lewis does apply and Employer was required to demonstrate a change in 

Claimant’s physical condition between the First and Second Termination Petitions, implicit in 

the WCJ’s Decisions is that Employer demonstrated such a change. The WCJ credited the 

testimony of Dr. Shah that Claimant was not recovered from the injury by March 2, 2015, and 

credited the testimony of Dr. Naftulin that any remaining disability of Claimant, after May 16, 

2017, was related to Claimant’s significant and long-standing preexisting conditions. Dr. 

Naftulin testified that Claimant’s “physical examination was somewhat different between the 

two” IMEs. (Sept. 7, 2017 Dep. Tr. at 50.) The WCJ’s Decisions, based on the testimony he 

found credible, found a change in Claimant’s physical condition between the dates asserted in 

the First and Second Termination Petitions and that Claimant recovered by May 16, 2017. We 

are bound by the credibility determinations of the WCJ. Dorsey v. Workers’ Comp. Appeal Bd. 

(Crossing Constr. Co.), 893 A.2d 191, 195 (Pa. Cmwlth. 2006). Additionally, in light of the fact 

that Claimant does not challenge in his brief the WCJ’s findings of fact surrounding his recovery 

from the November 4, 2014 injury, those findings are conclusive on appeal. GNB, Inc. v. 

Workers’ Comp. Appeal Bd. (Korman), 810 A.2d 732, 735 (Pa. Cmwlth. 2002). 
19

Termination Petition and, therefore, he could not raise an adequate defense. 

Regardless of whether Employer would have to demonstrate a change in 

Claimant’s physical condition, as set forth in Lewis, Employer, for both the First 

and Second Termination Petitions, had the “burden of proving by substantial 

evidence that a claimant’s disability ceased, or any remaining conditions are 

unrelated to the work injury.” Westmoreland Cnty., 942 A.2d at 217. Claimant 

had an adequate opportunity to defend against the First and Second Termination 

Petitions because Claimant was afforded the opportunity to submit evidence in 

opposition to those petitions both through his own testimony and the two 

depositions of Dr. Shah. Moreover, Claimant’s counsel asked Dr. Naftulin during

his second deposition whether there had been “any significant change in 

[Claimant’]s condition between” his first and second IME, (Sept. 7, 2017 Dep. Tr. 

at 50), which appears designed to elicit facts related to the Lewis requirement. 

III. Conclusion

Based upon the foregoing reasons, the Board did not err in determining that

Lewis is inapplicable to this matter, and Claimant was not prejudiced by having to 

defend against the Second Termination Petition before a decision on the First 

Termination Petition and Review Petition was issued. Accordingly, we affirm.

_____________________________________

RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Matthew Roy Carlson, :

Petitioner :

 :

v. : No. 1198 C.D. 2019

 : 

St. Luke’s Quakertown Hospital :

(Workers’ Compensation Appeal :

Board), :

Respondent :

Matthew Roy Carlson, :

Petitioner :

 :

v. : No. 962 C.D. 2020

 : 

St. Luke’s Quakertown Hospital :

(Workers’ Compensation Appeal :

Board), :

Respondent :

O R D E R

NOW, December 22, 2020, the August 7, 2019 Orders of the Workers’ 

Compensation Appeal Board in the above-captioned matters are hereby 

AFFIRMED. 

_____________________________________

RENÉE COHN JUBELIRER, Judge