IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Danielle Wolfe, :

Petitioner :

 :

v. : No. 432 C.D. 2021 

 : Submitted: December 3, 2021

Martellas Pharmacy (Workers’ :

Compensation Appeal Board), :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge1

HONORABLE ANNE E. COVEY, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge 

OPINION BY

JUDGE COHN JUBELIRER FILED: August 31, 2022

Danielle Wolfe (Claimant) petitions for review of the March 26, 2021 Order 

of the Workers’ Compensation Appeal Board (Board), which, in relevant part,

reversed the decision of a Workers’ Compensation Judge (WCJ) that had denied 

Martellas Pharmacy’s (Employer) Petition to Terminate Benefits (Termination 

Petition), and reduced the amount of unreasonable contest attorney’s fees the WCJ 

had awarded. On appeal, Claimant argues that the Board erred in determining that 

the testimony of Employer’s medical expert could legally support the termination of 

Claimant’s benefits as of August 10, 2017, and in making a corresponding reduction 

in the awarded unreasonable contest attorney’s fees. Upon review, we affirm. 

1 This case was assigned to the opinion writer before January 7, 2022, when Judge Cohn 

Jubelirer became President Judge. 
2

I. BACKGROUND 

A. History and Procedure 

Claimant worked for Employer as a cashier and was injured on June 10, 2017, 

when a six-foot metal gate she was raising fell and struck her on the top of her head. 

Claimant finished her shift but has not returned to work. Claimant began receiving

workers’ compensation benefits on June 12, 2017, after Employer initially 

recognized her injury, described as a skull contusion, in a June 28, 2017 Notice of 

Temporary Compensation Payable (NTCP) issued pursuant to Section 406.1(d)(6) 

of the Workers’ Compensation Act (Act).

2 Employer did not issue a Notice Stopping 

Temporary Compensation (NSTC), but issued a Medical-Only Notice of 

Compensation Payable (MO-NCP)3 on September 8, 2017, at which time Claimant 

stopped receiving indemnity benefits. Claimant filed a Reinstatement Petition and 

Penalty Petition, asserting that Employer’s failure to pay indemnity benefits 

pursuant to an “open” Notice of Compensation Payable (NCP) and failure to pay for 

medical treatment related to the work injury violated the Act. (WCJ Decision, 

Finding of Fact (FOF) ¶ 4.)4 In addition, Claimant requested the assessment of 

unreasonable contest attorney’s fees. Employer filed answers that denied the 

material allegations of Claimant’s petitions. On January 9, 2018, Employer filed the

Termination Petition alleging that Claimant had fully recovered from the work injury

as of August 10, 2017, based on the opinion of John Talbott, M.D. (Dr. Talbott),

who conducted an independent medical evaluation (IME) of Claimant on that date. 

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, 77 P.S. § 717.1(d)(6). 

3 The MO-NCP is found in the Certified Record at Item No. 49, pages 3-4. We note that 

the September 8, 2017 MO-NCP in the Reproduced Record at pages 3a-4a uses the second page 

from the NTCP issued June 28, 2017. 

4 The WCJ Decision is found in the Certified Record at Item No. 11 and in the Reproduced 

Record at pages 212a-25a. 
3

(Id. ¶¶ 5, 18.) The WCJ held multiple hearings, at which both parties presented 

evidence.

B. Proceedings Before the WCJ

Claimant testified to the following.5 Claimant was opening the store and she 

pushed a six-foot metal gate up, bent down to unlock a door, and the gate came down 

striking her on her head. After Claimant sustained the work injury, she saw her 

family doctor and then treated with Jonathan French, M.D. (Dr. French), who 

recommended vestibular and vision therapy, which Claimant still engages in along 

with daily home exercises. Claimant experiences double vision and dizziness that 

occurs prior to migraine headaches several times per week, which are triggered by 

excessive walking and driving. Claimant acknowledged having been diagnosed with 

and treated for migraine headaches prior to the work injury, and that she asked that 

her hours be reduced and frequently missed work because of her pre-work injury 

medical condition. Claimant’s symptoms after the work injury differed from the 

symptoms from which she suffered prior to the work injury. Claimant was restricted 

from working on June 12, 2017. Sometime after Claimant was injured at work, she 

spoke with Employer’s operations manager (Supervisor), who offered her part-time 

work as a clerk at Employer’s Franklin Street location, where she had been working. 

Claimant declined to work at the Franklin Street location, and instead asked to work 

at Employer’s Windber location because it was closer and involved less workload. 

5 Claimant’s February 27, 2018 testimony is found in the Certified Record at Item No. 18, 

and in the Reproduced Record at pages 19a-61a, and is summarized in Finding of Fact 7. 

Claimant’s June 28, 2019 testimony is found in the Certified Record at Item No. 21, in the 

Reproduced Record at pages 157a-211a, and is summarized in Finding of Fact 9. 
4

Claimant introduced Dr. French’s report and deposition testimony.

6

 Dr. 

French is a neuropsychologist who first examined Claimant on June 20, 2017. Dr. 

French explained that Claimant did not lose consciousness when struck, but did 

experience headache, tinnitus, nausea, photosensitivity, and dizziness. Dr. French 

opined that Claimant’s “post-concussion symptom scale score” was severe, her 

ocular and vestibular motor screening was abnormal, he diagnosed her as suffering 

from a cerebral concussion and post-concussion syndrome, and he recommended 

that she not work at that time.7 (Certified Record (C.R.) Item No. 25 at 9-10.) Dr. 

French saw Claimant on September 6, 2017, and released her back to work at that 

time with some restrictions. However, at a following visit on October 17, 2017, 

Claimant expressed difficulty getting to work due to driving and felt unsafe traveling 

to that position; thus, Dr. French disabled Claimant again. 

Employer presented Supervisor’s testimony at the June 28, 2019 hearing.8 

Supervisor first reached out to Claimant by letter on July 24, 2017, reminding 

Claimant of the proper procedures for alerting Employer of whether she intended to 

return, and Supervisor spoke with Claimant on September 11, 2017, concerning her 

return. Supervisor asked when Claimant would be going back to work, to which 

Claimant explained that Dr. French had restricted her work to four hours per day, 

five days per week, and she felt that she could not work Saturdays or evenings as 

she could not work alone. Claimant also claimed she could not drive any lengthy 

6 Dr. French’s deposition testimony is in the Certified Record at Item No. 25, and in the 

Reproduced Record at pages 67a-104a, and is summarized in Finding of Fact 10. 

7 Claimant also introduced: the office note and report of Michelle Barnes, O.D.; an April 

30, 2019 letter from Equian, which set forth a healthcare lien from UPMC Health Plan; billing 

statements and records; a fee agreement; a quantum meruit time record for litigation work; and 

litigation costs. (FOF ¶¶ 11-17.) 

8 Supervisor’s testimony is found in the Certified Record at Item No. 21, and in the 

Reproduced Record at pages 157a-94a, and is summarized in Finding of Fact 8. 
5

distance; thus, she could only work at the Windber location. Supervisor explained 

that Claimant was not employed at the Windber location, and that work was 

available to her at the Franklin Street location within the hour restrictions she 

required. Employer offered Claimant transportation as a solution to her driving 

restriction, but Claimant declined as she felt she could not be inside a moving vehicle 

at all. 

Employer offered the deposition testimony of Dr. Talbott, a board-certified 

neurologist, who conducted an IME of Claimant on August 10, 2017.9 Dr. Talbott

performed a physical evaluation of Claimant, reviewed Claimant’s medical records, 

and took Claimant’s account of the work injury, her symptoms, and her medical 

history, including Claimant’s ongoing issues with headaches prior to the work 

injury. Dr. Talbott opined that although Claimant likely had a minimal concussion 

at the time of the work injury, by the time of his evaluation, she was experiencing a 

continuation of her pre-work injury symptoms, which included headaches, 

sensitivity to noise and light, and nausea. (C.R. Item No. 43 at 14.) Based on this 

evaluation and review, Dr. Talbott concluded that Claimant had made a full recovery

of the work injury as of August 10, 2017, and placed no restrictions on her ability to 

perform her pre-injury job. 

C. The WCJ Decision 

On December 27, 2019, the WCJ issued a Decision based on the above factual 

and procedural background. The WCJ first rejected Claimant’s legal argument that 

the NTCP converted to an open NCP that recognized an ongoing loss of earnings 

related to Claimant’s work injury, due to Employer’s failure to issue an NSTC. 

9 Dr. Talbott’s deposition testimony is found in the Certified Record at Item No. 43, and in 

the Reproduced Record at pages 123a-56a, and is summarized in Finding of Fact 18.
6

(WCJ Decision, Conclusion of Law (COL) ¶ 2.) The WCJ concluded that 

Employer’s MO-NCP properly stopped the NTCP, as authorized by Section 121.17 

of the Board’s Regulations (Regulations), 34 Pa. Code § 121.17, even though the 

Act’s provisions appeared to “contemplate[] a specific notice being sent to Claimant 

that advised Claimant of the stoppage of temporary compensation and that Claimant 

must file a petition to establish any liability on the part of the employer.” (Id.) The 

WCJ observed that, until a court invalidated the regulation, the WCJ would not 

punish Employer for following the regulation. Having concluded that Employer had 

validly stopped the NTCP, the WCJ then considered whether Claimant had met her 

burden of proving a loss of earning power and a violation of the Act as asserted in 

her petitions.

The WCJ found that “Claimant suffered a work-related skull contusion and 

concussion on June 10, 2017 that disabled her through August 10, 2017,” and no 

longer “suffer[ed] any work-related disability after August 10, 2017,” crediting 

Claimant’s testimony as to the existence of the work injury and Dr. Talbott’s 

testimony as to Claimant’s full recovery from that injury. (FOF ¶¶ 24-25 (emphasis 

omitted).) The WCJ further credited Claimant’s evidence regarding the unpaid 

medical bills, lien, and out-of-pocket expenses, and found that these bills and 

expenses were related to the work injury, which Employer should have paid. (Id.

¶ 27 (emphasis omitted).) For these reasons, the WCJ held that Claimant had met 

her burden of proof on the Review Petition, which was treated as a Claim Petition, 

with Claimant’s disability benefits being suspended as of August 10, 2017, as well 

as on the Penalty Petition. (COL ¶¶ 4-5.)

As to the Termination Petition, the WCJ rejected Claimant’s testimony, as 

well as the opinions of Claimant’s expert, that linked any ongoing disability to the 
7

work injury after August 10, 2017, and provided numerous reasons for doing so. 

(FOF ¶ 25.) The WCJ noted that, because Employer issued an MO-NCP, Employer 

had “not admit[ted] to any work-related disability. Consequently, Dr. Talbott’s fullduty release was not inconsistent with the admissions in the September [8,] 2017 

[MO-]NCP.” (COL ¶ 6 n.3.) Although the WCJ credited Dr. Talbott’s opinions, the 

WCJ found them to be “legally insufficient to support a finding of full recovery.” 

(FOF ¶ 26; COL ¶ 6.) The WCJ explained

Claimant cite[d] Sharon Tube Co. v. [Workers’ Compensation Appeal

Board] (Buzard), 908 A.2d 929 (Pa. Cmwlth. 2006)[,] for the 

proposition that Employer’s issuance of a[n] [MO-]NCP on September 

8, 2017 precludes it from seeking a termination of benefits as of an 

earlier date. After reviewing the pertinent case law, I am constrained 

to agree. By issuing the September 8, 2017 MO[-]NCP, Employer 

acknowledged the existence of Claimant’s skull contusion as of that 

date. Employer was then burdened to show “that the employe’s 

disability has changed after the date of the agreement or the notice of 

compensation payable.” Id. at 932 (quoting Beissel v. [Workmen’s 

Comp. Appeal Bd.] (John Wanamaker, Inc.), . . . 465 A.2d 969 ([Pa.] 

1983)). As Dr. Talbott’s opinions only support a finding of full 

recovery prior to the date of the [MO-]NCP, it cannot support a 

termination of benefits.

(COL ¶ 6 (footnote omitted).) Accordingly, the WCJ denied the Termination 

Petition.

Finally, the WCJ granted Claimant’s request for unreasonable contest 

attorney’s fees. The WCJ explained that although Employer had prevailed in large 

part, its “Termination Petition was doomed when it was filed,” because even if Dr. 

Talbott’s opinions were credited, “Employer could not prevail on its attempt to 

terminate Claimant’s benefits as a matter of law.” (Id. ¶ 9.) The WCJ further held 

that “Employer was penalized for failing to pay work-related medical expenses, even 
8

though it had an open MO[-]NCP,” and, therefore, the WCJ concluded that 

“Employer [] ha[d] unreasonably contested half of the litigation.” (Id.)

D. The Board’s Opinion 

Both parties appealed to the Board.10 Claimant again argued that because the 

NTCP was never properly revoked, it converted to an NCP, and Claimant was

entitled to ongoing benefits under that open NCP. Employer argued that the WCJ’s

findings and conclusions regarding the insufficiency of Dr. Talbott’s opinion of full 

recovery were not supported by the record and were incorrect as a matter of law. 

Employer also argued that the WCJ erred in awarding unreasonable contest fees

because its contest was reasonable. The Board agreed with both Claimant and 

Employer in part and held that 

[u]pon review, we agree that the WCJ erred in concluding that 

[Employer] properly stopped paying temporary compensation without 

issuing an NSTC. The WCJ reasoned that the regulation permits the 

filing of an NSTC and [a Notice of Workers’ Compensation Denial 

(NCD)] or an NCP. [The WCJ] acknowledged Claimant’s contention 

that the Act controls, but declined to impose a penalty on [Employer]

for abiding by the regulation. We do not agree that an NSTC is not 

required. Notwithstanding, a penalty should be tied to avoidable, 

wrongful conduct, and the imposition of a penalty is within the WCJ’s 

discretion. . . . . The WCJ found no avoidable, wrongful conduct and 

exercised his discretion to award no penalty.[] We therefore determine 

no need for appellate correction of the WCJ’s Order.

[Employer] argues that the WCJ erred in denying the Termination 

Petition. We agree.

. . . .

The date on which an NCP is issued is not an absolute bar to a 

termination of benefits before that date. City of Philadelphia v.

10 The Board’s Opinion is found in the Certified Record at Item No. 16, and in the 

Reproduced Record at pages 236a-47a. 
9

[Workers’ Comp. Appeal Bd.] (Butler), 24 A.3d 1120 (Pa. Cmwlth. 

2011), appeal denied, 37 A.3d 1197 (Pa. 2012). Where the employer 

does not seek to disavow the injury or repudiate the NCP, termination 

may be granted on a showing of full recovery even if the date of 

recovery precedes the filing of an NCP. Id.

(Board’s Opinion at 5-6.) On this last point, the Board concluded that

we do not agree that [Employer] was precluded from seeking a 

termination of benefits before the date of the [MO-]NCP. The WCJ 

accepted Claimant’s argument under Sharon Tube Co. . . . , and found 

that [Employer] acknowledged the existence of Claimant’s injury as of 

the date the NCP was issued. [The WCJ] observed in a footnote that 

the [MO-]NCP did not admit to any work-related disability[,] and[,]

therefore, Dr. Talbott’s release to full duty was not inconsistent with 

the admissions in the [MO-]NCP. Nevertheless, the WCJ concluded 

that [Employer] was required to show a change of condition after the 

date of the NCP[,] and[,] accordingly, Dr. Talbott’s opinion could not 

support a finding of full recovery before the date of the NCP.

However, the court in Butler analyzed the Supreme Court’s ruling in 

Beissel . . . , which was cited by the court in Sharon Tube Co. In 

Beissel[,] the employer attempted to repudiate an NCP with new 

medical evidence showing that the NCP was erroneous[,] and the 

claimant had not suffered a work-related injury. The Beissel court held 

that the employer could not repudiate the NCP. In Butler, the employer 

did not attempt to disavow the disabling injury but only alleged a full 

recovery. The Butler court observed that there is no sound policy 

reason or any provision of the Act absolutely precluding a termination 

of benefits for a claimant who has fully recovered before an NCP is 

issued. 

In the present matter, the WCJ accepted Dr. Talbott’s opinion but 

suspended indemnity benefits rather than terminating benefits. 

[Employer] here did not seek to disavow the injury; therefore, a 

termination may be granted under Butler. 

(Id. at 7-8 (footnote omitted).) The Board reversed the WCJ’s denial of the 

Termination Petition, reduced the award of counsel fees for unreasonable contest, 
10

and affirmed the remainder of the WCJ’s Decision. Claimant now petitions this

Court for review.

11

II. DISCUSSION

On appeal, Claimant argues12 that the Board erred in determining that the MONCP was the controlling document because Employer’s failure to issue an NSTC 

resulted in the NTCP converting to an NCP by operation of law. Thus, according to 

Claimant, the NCP was the controlling document. Claimant further asserts, relying 

on the conversion of the NTCP into an NCP, that the Board erred in concluding that 

Employer met its burden of proof on the Termination Petition based on Butler and, 

instead, should have relied on Sharon Tube Co., as the WCJ had. Claimant last 

contends that the WCJ’s award of unreasonable contest fees should be reinstated 

because the Board’s reversal of the WCJ’s denial of the Termination Petition was in 

error. 

Employer responds that Section 121.17 of the Regulations allows for the use 

of an MO-NCP to stop an NTCP. Employer contends that Dr. Talbott’s testimony 

is legally sufficient to support termination, as the Board held, and specifically 

challenges the WCJ’s determination that Dr. Talbott’s testimony is not legally 

sufficient. Last, Employer argues that the Board’s modification of attorney’s fees 

should be affirmed because there was no error in granting the Termination Petition. 

11

“Our review is limited to determining whether the WCJ's findings of fact were supported 

by substantial evidence, whether an error of law was committed, or whether constitutional rights 

were violated.” Frankiewicz v. Workers’ Comp. Appeal Bd. (Kinder Morgan, Inc.), 177 A.3d 991,

995 n.2 (Pa. Cmwlth. 2017). We exercise plenary, de novo review over questions of 

law. Sedgwick Claims Mgmt. Servs., Inc. v. Bureau of Workers’ Comp., Fee Rev. Hearing Off.

(Piszel & Bucks Cnty. Pain Ctr.), 185 A.3d 429, 433 n.2 (Pa. Cmwlth. 2018).

12 We have rearranged Claimant’s arguments for ease of discussion.
11

A. Whether the Board Erred in Holding that the MO-NCP was the 

Controlling Document 

Because Claimant’s argument regarding what Employer had to prove to 

obtain a termination of her benefits is based on her assertion that the NTCP 

converted to an NCP, we first examine whether that conversion occurred. Claimant 

relies on Section 406.1 of the Act to argue that only the filing of an NSTC and NCD 

will validly revoke an NTCP, and if not filed within 90 days, the NTCP converts 

into an NCP. In contrast, Employer relies on Section 121.17, which allows for 

payments under an NTCP to be stopped through the issuance of an NCP or MONCP. Claimant contends that Section 121.17 cannot be contrary to the Act’s 

provisions and, therefore, is invalid. 

Section 406.1 of the Act addresses how an employer is to respond to an 

alleged work injury, including the issuance of, and stopping payments made 

pursuant to, an NTCP. Section 406.1(d)(1), (5)(i)-(iii), and (6) of the Act provides 

that 

(d)(1) In any instance where an employer is uncertain whether a claim 

is compensable under this [A]ct or is uncertain of the extent of its 

liability under this [A]ct, the employer may initiate compensation 

payments without prejudice and without admitting liability pursuant to 

a[n] [NTCP] as prescribed by the [Department of Labor and Industry 

(department)].

. . . .

(5)(i) If the employer ceases making payments pursuant to a[n] 

[NTCP], a notice in the form prescribed by the department shall be sent 

to the claimant and a copy filed with the department, but in no event 

shall this notice be sent or filed later than five (5) days after the last 

payment. 

(ii) This notice shall advise the claimant, that if the employer is ceasing 

payment of temporary compensation, that the payment of temporary 
12

compensation was not an admission of liability of the employer with 

respect to the injury subject to the [NTCP], and the employe must file 

a claim to establish the liability of the employer. 

(iii) If the employer ceases making payments pursuant to a[n] [NTCP], 

after complying with this clause, the employer and employe retain all 

the rights, defenses and obligations with regard to the claim subject to 

the [NTCP], and the payment of temporary compensation may not be 

used to support a claim for compensation.

. . . .

(6) If the employer does not file a notice under paragraph (5) within the 

ninety-day period during which temporary compensation is paid or 

payable, the employer shall be deemed to have admitted liability and 

the [NTCP] shall be converted to a[n] [NCP].

77 P.S. §717.1(d)(1), (5)(i)-(iii), (6). Section 121.7a(a)(1)-(3) of the Regulations 

addresses the time and manner of issuing an NTCP. 34 Pa. Code § 121.7a(a)(1)-

(3).13 Section 121.17(d) of the Regulations sets forth how to stop temporary 

payments made under an NTCP:

(d) If temporary payments made under § 121.7a (relating to [NTCP]) 

are stopped, the employer shall file one of the following: 

13 Specifically, Section 121.7a(a)(1)-(3) provides that

(a) If an employer files a[n] [NTCP], Form LIBC-501, the employer shall do all of 

the following simultaneously and no later than 21 days from the date the employer 

had notice or knowledge of the disability: 

(1) Send the [NTCP], Form LIBC-501, to the employee or the employee’s 

dependent. 

(2) Pay compensation to the employee or the employee’s dependent. 

(3) File the [NTCP], Form LIBC-501, with the Bureau [of Workers’ Compensation 

(Bureau)]. 

34 Pa. Code § 121.7a(a)(1)-(3).
13

(1) A[n] [NSTC], Form LIBC-502, and a[n] [NCD], Form LIBC-496, 

within 5 days of the last payment and within the 90-day temporary 

compensation payable period. 

(2) A[n] [NCP], Form LIBC-495. 

(3) An Agreement for Compensation for Disability or Permanent 

Injury, Form LIBC-336. 

34 Pa. Code § 121.17(d). Recently, in Raymour & Flanigan v. Workers’ 

Compensation Appeal Board, 264 A.3d 817 (Pa. Cmwlth. 2021), petition for 

allowance of appeal denied (Pa., No. 388 EAL 2021, filed June 27, 2022), this Court 

addressed the question of whether an employer may stop the payment of temporary 

compensation under an NTCP by issuing an MO-NCP. In that case, the claimant 

was injured at work on September 13, 2018, the employer issued an NTCP on 

October 1, 2018, and the employer paid benefits under that NTCP, but subsequently 

issued an MO-NCP on October 17, 2018. The claimant filed a penalty petition and 

reinstatement petition in November 2018, arguing the employer violated the Act and

seeking the reinstatement of temporary total disability benefits. The WCJ found 

that, pursuant to Section 121.17(d), “there was no requirement to file a[n] [NSTC] 

if, during the temporary period, the employer or insurer decided to issue a[n]

[NCP.]” Id. at 818. The Board reversed, holding that the proper method for stopping 

payment of benefits made under an NTCP, pursuant to Section 406.1(d)(5)(ii) of the 

Act and Section 121.17(d), was to issue an NSTC and an NCD within 5 days of the 

last payment and within the 90-day temporary compensation payable period. Then, 

the employer could issue an MO-NCP. Because the employer had not followed this 

procedure, the Board held that the NTCP converted into an NCP, which became the 

controlling document and entitled the claimant to ongoing wage loss benefits.
14

The employer petitioned for review, and this Court reversed. There, as here, 

the claimant argued that Section 121.17 was inconsistent with the Act and the 

Board’s interpretation was correct. We disagreed, holding that the employer had 

complied with the Act by only filing an MO-NCP. Id. at 822-23. We explained that 

the Board erred in applying Section 406.1(d)(5)(i)-(ii) in this 

circumstance. That Section requires that when an employer ceases 

making payments pursuant to a[n] [NTCP], it must send a notice 

advising a claimant (1) that the payment of temporary compensation 

did not constitute an admission and (2) that the employee must file a 

claim to establish liability of the employer. However, in the case where 

a[n] [MO-NCP] is filed, the first statement – that the temporary 

compensation does not constitute an admission – is legally incorrect, as 

the employer is acknowledging the injury. . . . Further, the second 

statement – that an employee must file a claim to establish liability – is 

equally untrue. . . . Accordingly, we believe that Section 406.1(d)(5) is 

simply inapplicable here, and that Section 121.17(d) of the Bureau’s 

regulations properly requires that an employer either comply with 

Section 406.1(d)(5) or file a[n] [NCP], of which a[n] [MO-NCP] is one 

variety. The only remaining function of the notices . . . is to notify a 

pro se claimant of the fact that indemnity benefits have ceased. To the 

extent that the checkbox on the [MO-NCP] informed [the c]laimant that 

only compensation for medical treatment, and not loss of wages, would 

be paid . . . it would seem that this purpose was accomplished by that 

notice alone. 

Id. at 822 (emphasis omitted). We observed that where an MO-NCP is issued, the 

other notices (the NSTC and/or NCD) contained misstatements of the law and would 

cause confusion and misinformation to the claimant regarding his or her next steps, 

which would be contrary to the humanitarian purpose of the Act and “lead to an 

absurd result.” Id. at 823. 

This Court applied Raymour & Flanigan in School District of Philadelphia v. 

Holman (Workers’ Compensation Appeal Board) (Pa. Cmwlth., No. 23 C.D. 2020, 
15

filed April 19, 2022).

14

 In Holman, the claimant was injured at work, the employer 

issued an NTCP, and the employer later issued an MO-NCP and stopped paying 

wage benefits within the 90-day period. The claimant filed a penalty petition, 

arguing that the employer violated the Act by stopping the payment of benefits 

because the claimant never received an NSTC. The employer responded that by 

issuing an MO-NCP within 90 days of the NTCP, it had complied with Section 

121.17(d) and had not otherwise violated the Act. The WCJ denied the penalty 

petition, but the Board reversed based on its conclusion that an NSTC and an NCD 

had to be issued pursuant to Section 406.1(d) of the Act. We reversed, reasoning 

that Raymour & Flanigan had addressed the issue squarely, and that, as a result, the 

employer had not violated the Act or regulations by issuing an MO-NCP to stop the 

temporary compensation payment. Holman, slip op. at 9-10.

15

As this Court explained in Holman, our analysis in Raymour & Flanigan is 

“on point and controlling here,” and we are bound to follow this precedent unless 

overruled. Id., slip op. at 9. See also Crocker v. Workers’ Comp. Appeal Bd. (Ga.

Pac. LLC), 225 A.3d 1201, 1210 (Pa. Cmwlth. 2020) (quoting Pries v. Workers’ 

Comp. Appeal Bd. (Verizon Pa.), 903 A.2d 136, 144 (Pa. Cmwlth. 2006)) (“‘[W]e 

are bound to follow the decisions of our Court unless overruled by the Supreme 

Court or where other compelling reasons can be demonstrated.’”). Here, as in 

Raymour & Flanigan, and Holman, Employer issued an MO-NCP within the 90-day 

period pursuant to Section 121.17(d)(1), and therefore, the NTCP did not convert to 

an NCP. Raymour & Flanigan, 264 A.3d at 823; Holman, slip op. at 9. As a result, 

14 Pursuant to Pennsylvania Rule of Appellate Procedure 126(b), Pa.R.A.P. 126(b), and 

Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a), an

unreported opinion of this Court may be cited for its persuasive value.

15 The claimant in Holman filed a petition for allowance of appeal at Supreme Court Docket 

No. 134 EAL 2022.
16

the MO-NCP was the controlling document in this case, and Claimant’s contrary 

arguments are unavailing.

16

 

B. Whether the Board Erred in Holding that Dr. Talbott’s Testimony 

Supported the Termination of Benefits 

We now turn to whether Employer could meet its burden of proof on the 

Termination Petition based on Dr. Talbott’s finding of full recovery as of a date prior 

to the issuance of an MO-NCP. “To succeed in a termination petition, the employer 

bears the burden of proving that the claimant’s disability has ceased or that any 

current disability is unrelated to the claimant’s work injury.” Gillyard v. Workers’ 

Comp. Appeal Bd. (Pa. Liquor Control Bd.), 865 A.2d 991, 995 (Pa. Cmwlth. 2005).

“An employer may satisfy this burden by presenting unequivocal and competent 

medical evidence of the claimant’s full recovery from [the] work-related injur[y].”

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

Cmwlth. 2008). Here, there is no dispute that Dr. Talbott credibly opined that 

Claimant fully recovered from the work injury as of August 10, 2017. Rather, the 

dispute is whether such testimony is legally sufficient, under Beissel and Sharon 

Tube Co., or Butler, to support the termination of benefits based on Employer’s 

issuance of the September 8, 2017 MO-NCP. To resolve this dispute, we begin with 

a review of the relevant caselaw. 

In Beissel, our Supreme Court addressed an employer’s attempt to terminate 

benefits for an injury and disability accepted in an NCP based on a medical opinion 

which occurred years later. The claimant slipped and fell at work, injured her back, 

had back surgery, and suffered a loss of wages. After the claimant filed a claim 

16 Although the Board erred in holding that the MO-NCP did not stop the NTCP, such error 

was harmless because the Board considered the MO-NCP, rather than a converted NCP, as the 

operative document.
17

petition, the parties settled, and the employer issued an NCP that accepted liability 

for the lower back injury. Two years later, the employer filed a petition to terminate, 

arguing, based on a recently obtained medical opinion, that the claimant’s condition 

was unrelated, and had always been unrelated, to the work fall because it was caused 

by a “coughing and laughing spell.” Beissel, 465 A.2d at 970. The WCJ accepted 

the employer’s evidence and terminated the claimant’s benefits. The Board and this 

Court affirmed. The Supreme Court reversed, holding that the employer could not 

alter the admissions it made in the NCP without showing a change in the claimant’s 

disability “after the date of agreement or [NCP].” Id. at 971 (emphasis in original). 

The Beissel court explained that

[j]ust as we have held that the burden is on a[n employer] to prove that 

an employe’s disability has increased or decreased after the filing of 

a[n] [NCP], we also hold that a[n employer] has the burden of proving 

that an independent cause of an employe’s disability arose after the 

filing of a[n] [NCP] if the [employer] is seeking to justify the 

termination of benefits on the grounds that the employe’s disability is 

no longer work-related. To hold otherwise would afford the employer 

an opportunity to litigate that which it has already admitted. This we 

will not do.

Id. at 972 (emphasis in original). Thus, the Supreme Court made clear that an 

employer’s admissions in an NCP, there that the claimant sustained a disabling work 

injury, were binding and could not be contradicted unless a change in a claimant’s 

disability was established.

This Court, in Sharon Tube Co., applied Beissel to a situation involving a 

supplemental agreement that acknowledged that a claimant’s total disability had 

recurred as of a particular date. In that case, the claimant suffered a work injury on 

November 13, 1995, and a WCJ awarded benefits. On July 21, 2003, he returned to 

work with a loss of wages, and the employer modified his benefits to reflect his 
18

earned wages, although no supplemental agreement was filed at that time. Sharon 

Tube Co., 908 A.2d at 929 n.1. The claimant was taken off work by his doctor on 

July 28, 2003. Id. at 929-30. On August 11, 2003, “the parties executed a 

[s]upplemental [a]greement . . . acknowledging a recurrence of [his] total disability 

effective July 28, 2003.” Id. at 930. The agreement stated that as of July 28, 2003, 

“disability recurred total in character [and] compensation shall be payable to the 

[claimant].” Id. On October 8, 2003, the employer filed a modification petition, 

seeking reduction of the claimant’s benefits as of July 21, 2003, based on his return 

to work that day. Id. The claimant objected, asserting that in the supplemental 

agreement the employer admitted that the claimant was totally disabled as of July 

28, 2003, and, therefore, the employer was estopped from making any modification 

for weeks other than July 21, 2003, to July 27, 2003. Id. The employer argued that 

the supplemental agreement was merely reflecting its obligation to resume paying 

total disability benefits as a result of the claimant stopping work. Id. The employer 

offered several doctors’ examinations of the claimant, and the claimant offered his 

own doctor’s opinion that he was not capable of performing any work due to the 

work injury. 

The WCJ rejected the claimant’s testimony and granted the employer’s 

modification petition. The Board reversed, holding that the employer was required 

to show that the claimant had regained all or some of his earning capacity after July 

28, 2003, the date the employer acknowledged that the claimant had again become 

totally disabled. Id. at 931. Due to the employer’s failure to show medical evidence 

of the claimant’s condition or his availability to work after that date, the Board 

reversed. On appeal, the employer again asserted that the supplemental agreement 

did not preclude it from seeking to modify benefits prior to July 28, 2003. This 
19

Court disagreed, explaining that “[S]ection 413(a) authorizes the WCJ to modify an 

agreement only upon proof that a claimant’s condition has changed since the date 

of the agreement.” Id. at 933 (emphasis added). Thus, as in Beissel, Sharon Tube 

Co. involved a situation where the employer expressly recognized a claimant’s 

condition as of a particular date, and the employer’s attempt to make assertions that 

were contrary to those that were expressly recognized without establishing a change 

in circumstances. 

This Court subsequently considered, in Butler, “how the date of an NCP 

impacts an employer’s ability to terminate or suspend a claimant’s benefits” under 

Beissel. Butler, 24 A.3d at 1125 (emphasis omitted). The claimant in Butler was in 

a work-related car accident on September 28, 1995. On October 19, 1995, the 

employer sent the claimant to a doctor who examined her and found her to be fully 

recovered. Not finding objective evidence to support the claimant’s continued 

complaints of head and back pain, that doctor referred the claimant to a second 

doctor, who examined the claimant and concurred that the claimant was fully 

recovered. On November 7, 1995, the employer issued an NCP acknowledging that 

the claimant had suffered a work injury on September 28, 1995, described as bruises 

to the neck, back, and head, and provided for a weekly compensation rate. However, 

concerning the inception date of disability compensation, the “[e]mployer placed an 

asterisk, directing the reader to the ‘Remarks’ section of the NCP. There, [the 

e]mployer stated that [the c]laimant ‘received salary in lieu of workers’ 

compensation benefits under Regulation 32.’” Id. at 1122. 

The next month, the employer filed a termination petition asserting that the 

claimant had fully recovered as of October 20, 1995. Based on the employer’s 

medical evidence, the WCJ found that the claimant was fully recovered as of that 
20

date. After several appeals, reversal, and remand,17 the WCJ again found that the 

claimant did not suffer any residual effects of her work injury and was capable of 

returning to work. Ultimately, the Board reversed, however, holding that under 

Beissel, the employer was required to show that the claimant’s physical condition 

had improved after the date the NCP was issued. Id. at 1123. 

On appeal to this Court, the employer argued that the Board misapplied the 

Supreme Court’s decision in Beissel, and that the employer had proven what it was 

required to prove – that the claimant was recovered and able to work. We noted, at 

the outset, that “[a]n NCP acknowledges the existence of a work injury, and it can 

limit this acknowledgment to a[n MO-NCP], meaning that the injury did not result 

in a loss of earning power. . . . The NCP frames the issues in a termination or 

suspension proceeding.” Id. at 1124 (citation omitted). We emphasized that the 

employer’s evidence in Beissel did not focus on establishing that the claimant “had 

recovered from the work-related disability identified in the NCP; rather, it showed 

that the NCP was erroneous and that the [c]laimant had not suffered a workrelated injury.” Butler, 24 A.3d at 1125 (emphasis added). The Butler court 

explained that “[t]he principle established in Beissel is that an employer is bound by 

the contents of its own NCP. The employer cannot repudiate the substance of its 

own NCP and its acceptance of liability for a work injury.” Id. (emphasis added; 

footnote omitted). We noted that the employer in Butler did not disavow the 

disabling work injury, nor did it repudiate the contents of the NCP. Id. at 1126.

Rather, applying Beissel’s principle to the facts in Butler, we held that

[the e]mployer’s NCP acknowledged that [the c]laimant suffered a 

disabling work injury. The NCP did not provide a starting date for 

17 Butler had a lengthy procedural history, and we recite only what is necessary for our 

purposes here. 
21

compensation because [the e]mployer explained that it had paid [the 

c]laimant Injured on Duty benefits “in lieu of workers’ compensation.”

. . . Most critically, the NCP did not state that [the c]laimant remained 

disabled as of November 7, 1995, on which date [the e]mployer filed 

its NCP with the Bureau. 

Id. at 1126 (emphasis added). Importantly, the Butler court reasoned:

It does not advance sound policy, or any provision of the Act, to 

have the date of an NCP’s issuance stand as an absolute barrier to 

a termination of benefits for a claimant who is fully recovered. . . . 

[S]uch a holding exalts form over substance. The substance of the NCP 

is that [the c]laimant was disabled and entitled to benefits. The NCP 

did not recite that [the e]mployer considered [the c]laimant still unable 

to work as of November 7, 1995, when it issued the NCP. Had the 

NCP contained such statement, the outcome here might be 

different. 

Id. (bold emphasis added). We held that “the date of an NCP does not preclude the 

termination, suspension[,] or modification of benefits as of a date that predates the 

filing of an NCP,” and therefore, the employer properly established the claimant’s 

recovery as of October 20, 1995. Id. at 1127.

Claimant argues that pursuant to Beissel and Sharon Tube Co., the WCJ 

correctly found Dr. Talbott’s testimony insufficient to support a termination of 

benefits. Claimant contends that Employer accepted Claimant’s work injury on 

September 8, 2017, by issuing the MO-NCP, which acknowledged that 

compensation for medical treatment would be paid. Claimant further asserts, based 

on her contention that the NTCP converted into an NCP, that Employer accepted 

Claimant’s ongoing loss of earnings as a result of the work injury. This fact, 

Claimant asserts, distinguishes this matter from Butler. She maintains that to 

terminate her benefits as of August 10, 2017, based on Dr. Talbott’s finding of full 

recovery, would be contrary to Beissel and Sharon Tube Co. because Employer did 
22

not prove a change in her condition after September 8, 2017. Employer responds 

that the Board did not err in relying on Butler, and that Dr. Talbott’s testimony 

presented substantial, competent evidence to support a termination of benefits. 

We disagree that Beissel and Sharon Tube Co. are controlling and that the 

Board erred in relying on Butler. First, because we have determined that the NTCP 

did not convert to an NCP, we look only at the MO-NCP. The WCJ and the Board 

both recognized that the MO-NCP issued by Employer on September 8, 2017, did

not admit to any work-related disability. Specifically, the WCJ explained that “since 

the NCP was medical-only, Employer did not admit to any work-related disability. 

Consequently, Dr. Talbott’s full-duty release was not inconsistent with the 

admissions in the September [8,] 2017 [MO-]NCP.” (COL ¶ 6 n.3.) Thus, this is 

not a situation, as it had been in Beissel and Sharon Tube Co., where Employer is 

seeking to disavow an admitted or agreed to work injury or related disability. 

Instead, Employer, similar to the employer in Butler, seeks only to show that full 

recovery occurred on August 10, 2017, based on Dr. Talbott’s credited opinion that

Claimant was fully recovered from her work injury and any related disability was 

related to her preexisting condition. Like the NCP at issue in Butler, the MO-NCP

here does not expressly state that Claimant remained disabled, or even injured, as of 

the date the MO-NCP was issued. Rather, it recognizes that an injury occurred, and

described that injury, and Employer checked the box indicating that compensation 

for medical treatment would be paid subject to the Act. While Claimant points to 

this last statement to support her argument, because compensation for medical 

treatment is paid under the Act only until a claimant is fully recovered from the work 

injury, we do not view this statement on a pre-printed form as an admission by 

Employer that, as of September 8, 2017, Claimant continued to need medical 
23

treatment as of that date. Employer’s Termination Petition is not attempting to 

repudiate or disavow what was accepted or admitted in the MO-NCP, and, therefore,

the Board did not err in finding that Butler, rather than Beissel and Sharon Tube Co.,

was applicable here. As a result, there was no error in the Board concluding that 

Employer sustained its burden of proof on the Termination Petition and that 

Claimant’s benefits could be terminated as of August 10, 2017, based on Dr. 

Talbott’s credited testimony.

18

III. CONCLUSION 

Although Employer issued the MO-NCP, rather than an NSTC and an NCD, 

the NTCP did not automatically convert to an NCP pursuant to Section 406.1(d)(6)

and Raymour & Flanigan. As a result, the MO-NCP was the controlling document 

in this case. Therefore, the Board did not err in relying on Butler to determine that 

a termination of benefits could be granted based on Dr. Talbott’s credited opinion 

because such testimony did not reflect Employer’s attempt to disavow or repudiate 

any admission or agreement set forth in the MO-NCP. Accordingly, we affirm the 

Board’s Order. 

_____________________________________

 RENÉE COHN JUBELIRER, Judge

18 As a result of our conclusion that the Board did not err in holding that Employer met its 

burden of proof on the Termination Petition, Claimant’s argument that the Board erred in reducing 

the award of attorney’s fees necessarily fails. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Danielle Wolfe, :

Petitioner :

 :

v. : No. 432 C.D. 2021 

 : 

Martellas Pharmacy (Workers’ :

Compensation Appeal Board), :

Respondent :

O R D E R

NOW, August 31, 2022, the Order of the Workers’ Compensation Appeal 

Board, entered in the above-captioned matter, is hereby AFFIRMED. 

____________________________________

RENÉE COHN JUBELIRER, Judge