IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Steven Jones, :

Petitioner :

:

 v. : No. 533 C.D. 2019

: Submitted: August 9, 2019

:

Workers' Compensation Appeal :

Board (SEPTA), :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ROBERT SIMPSON, Judge1

HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE SIMPSON FILED: November 25, 2019

Steven Jones (Claimant) petitions for review of an order of the 

Workers’ Compensation Appeal Board (Board) that affirmed an order of Workers’ 

Compensation Judge (WCJ) Andrea McCormick granting Southeastern 

Pennsylvania Transportation Authority’s (Employer) termination petition. The 

WCJ’s order also denied Claimant’s petitions for review of utilization review (UR) 

determination (UR review petitions) and reinstatement petition. Claimant contends 

the WCJ erred in terminating his benefits and in denying his UR review petitions in 

light of the medical evidence. For the reasons that follow, we affirm.

 

1 This matter was assigned to this panel before September 1, 2019, when Judge Simpson 

assumed the status of senior judge.
2

I. Background

A. History of Proceedings; Current Petitions

Claimant worked for Employer as a maintenance custodian driver. His 

duties included heavy lifting and driving forklifts. In September 2001, Claimant fell 

through an open grate, dropped 8 to 10 feet, and struck various body parts. Claimant 

sustained work-related injuries described in an approved stipulation as sprain/strains 

of the right ankle and cervical spine region, low back pain, and discomfort in both 

shoulders.

In a February 2006 decision, WCJ Scott Olin determined that all workrelated disability of the right ankle, right knee, and low back ceased as of November 

2004. However, WCJ Olin also determined that Claimant remained totally disabled 

from symptoms related to his cervical spine and shoulder conditions.

In November 2011, WCJ McCormick modified Claimant’s benefits to 

a 500-week period of partial disability based on an impairment rating evaluation of 

35%. In April 2015, WCJ Denise Krass issued a decision denying Employer’s 

termination, suspension and modification petitions based on a finding that 

Claimant’s symptoms related to cervical spine and shoulders continued and 

prevented him from returning to work in more than a light-duty capacity. In 

particular, WCJ Krass determined that none of the jobs identified by Employer’s 

vocational expert were sufficiently light duty in nature for Claimant.

In May 2017, Employer filed a new termination petition alleging 

Claimant fully recovered from his work-related injuries as of March 2, 2017, based 
3

on an independent medical examination (IME) performed by Dr. Dennis W. Ivill 

(IME Physician). In July 2017, Claimant filed a reinstatement petition seeking to 

modify his benefits from partial disability to ongoing total disability based upon the 

Supreme Court’s decision in Protz v. Workers’ Compensation Appeal Board (Derry 

Area School District), 161 A.3d 827 (Pa. 2017).

In August 2017, Dr. Stanley Askin completed a UR determination 

finding that Claimant’s treatment by Dr. Randall N. Smith (Claimant’s Physician), 

a board-certified orthopedic surgeon, from April 21, 2017, and ongoing, was

unreasonable and unnecessary. This included office visits at any frequency, the May 

2017 MRI (magnetic resonance imaging) of the cervical spine, prescription 

medications, over the counter aspirin (81 mg daily), and supplements. On the same 

day, Dr. Nathan Schwartz completed a UR determination finding Claimant’s 

treatment with Ms. Lydia A. Reese, L.Ac. (Acupuncturist), an acupuncture 

practitioner, unreasonable and unnecessary after April 7, 2017. Claimant timely 

filed UR review petitions regarding both UR determinations.

B. Employer’s Evidence

In support of its termination petition, Employer presented IME 

Physician’s deposition testimony. IME Physician, board certified in physical 

medicine and rehabilitation, reviewed Claimant’s numerous medical records. He 

learned that Claimant began treatment with Dr. Richard H. Kaplan (Physiatrist), who 

is board certified in physical medicine and rehabilitation, in 2003. Physiatrist, who 

practices with Claimant’s Physician, treats Claimant with acupuncture, prescription 
4

pain killers and sleeping pills. These medications include Tramadol, 

Cyclobenzaprine, Ibuprofen, Lyrica and Relistor.

Claimant’s complaints included neck pain radiating down the bilateral 

upper extremities over the shoulder into the elbow area. The pain was sharp and 

constant. It increased with range of motion. Claimant also reported headaches that 

felt like migraines and right ankle pain; neither of these two conditions were 

determined to be related to Claimant’s work injury.

IME Physician also physically examined Claimant. IME Physician 

noted that Claimant ambulated without an antalgic gait. Claimant’s neck 

examination revealed normal curvature of the cervical spine, and no palpable trigger 

points in the bilateral cervical paraspinal, levator scapulae or trapezius muscles. 

Claimant had no pain in the spinous processes and a negative Spurling’s sign 

bilaterally. Claimant’s bilateral upper extremities had normal reflexes and strength 

throughout. Sensation was intact to light touch. The circumference of both arms 

was the same. Claimant had negative Tinel’s at the bilateral greater occipital nerves, 

bilateral elbows, and bilateral wrists. Claimant also had negative Phalen’s sign and 

reverse Phalen’s. IME Physician also performed Jaymar hand grip dynamometer 

testing, which showed inconsistencies.

IME Physician also evaluated Claimant’s lower extremities. His

objective physical examination findings were all normal.
5

Ultimately, IME Physician opined within a reasonable degree of 

medical certainty that as of his March 2, 2017 examination, Claimant fully recovered 

from his cervical sprain and strain, and his discomfort in both shoulders. Therefore, 

IME Physician executed an affidavit of full recovery.

Employer also submitted into evidence a surveillance summary and 

video of surveillance conducted in July 2017 by Prime Source Investigations 

(Investigator). Surveillance observed Claimant lifting and carrying recycling and 

trash cans to his neighbor’s porch and side yard. A photo showed Claimant lifting 

the recycling bin over his head with his left arm.

Later in July 2017, Investigator observed Claimant, a Jehovah’s 

Witness, standing on a corner talking to others before entering a vehicle with others 

and returning to Kingdom Hall, their place of worship. Investigator also observed 

Claimant pulling a large suitcase and setting up what appeared to be a portable 

display of pamphlets. Claimant moved without restriction and gestured using his 

hands and arms.

In opposition to Claimant’s UR review petition regarding Claimant’s 

Physician’s care, Employer presented Dr. Askin’s UR determination report. Dr. 

Askin reviewed Claimant’s office visits, medications and diagnostic studies from 

April 21, 2017, and ongoing. Dr. Askin noted that Claimant’s Physician provided 

palliative care for Claimant. However, Claimant’s Physician’s examinations did not 

identify any atrophy, weakness, or sensory imperfection. Rather, Claimant’s 

Physician’s examinations merely indicated pain and discomfort over the center of 
6

the spine that has been unyielding despite the passage of time, acupuncture 

treatment, and various medications.

Dr. Askin found that Claimant had no disc herniation, no neurologic 

impairment and no surgery. Thus, Dr. Askin determined that from April 21, 2017, 

and ongoing, all treatment rendered to Claimant by Claimant’s Physician was 

unreasonable and unnecessary. This included office visits at any frequency, a May 

2017 cervical spine MRI scan, prescription medications and supplements. Dr. Askin 

based his assessment on the fact that Claimant’s Physician’s records showed no 

treatment goals and did not appear to be changing the treatment modalities. Dr. 

Askin also noted that there were no measurable gains in Claimant’s condition. 

In opposition to Claimant’s UR review petition regarding 

Acupuncturist’s care, Employer presented Dr. Schwartz’s UR determination report. 

Dr. Schwartz reviewed Acupuncturist’s treatment of Claimant from April 7, 2017,

and ongoing. The doctor noted that Acupuncturist began treating Claimant in June 

2007. At that time, Claimant complained of upper back and neck pain with right 

shoulder/trapezius radiation. Claimant had been taking numerous medications.

Dr. Schwartz further reported that the documentation provided was 

inadequate to support the treatment under review. Based on practice guidelines, 

there is no support for acupuncture treatments for the diagnosis of cervical root 

disorders, other cervical displacement, high cervical region, and other cervical disc 

displacement in mid cervical regions. In addition, treatment with acupuncture is 

typically applied after the failure of other traditional, conservative management 
7

techniques. The goal of acupuncture is to restore the body’s natural energy flow, 

thereby eliminating the need for endless acupuncture sessions. Dr. Schwartz 

concluded that all of Acupuncturist’s treatment, from April 7, 2017, and ongoing, 

was neither reasonable nor necessary.

C. Claimant’s Evidence

In opposition to Employer’s termination and in support of his UR 

review petitions, Claimant presented the deposition testimony of Claimant’s 

Physician. He first examined Claimant in October 2014. Claimant provided a 

history of his 2001 work-related fall, which resulted in injuries to his right ankle, 

neck, upper back and shoulders. Claimant informed Claimant’s Physician that he 

still experienced problems with his neck, shoulders and upper back. Upon 

examination, Claimant’s Physician noted that Claimant had spasms, tenderness and 

lack of mobility of neck, shoulders and upper back. Claimant’s Physician

recommended medication and acupuncture. Also, Claimant’s Physician opined that 

Claimant could perform some work.

Following his initial appointment, Claimant returned once a month to 

see either Claimant’s Physician or Physiatrist. Claimant’s Physician last saw 

Claimant in September 2017. At that time, Claimant continued to have pain in the 

neck, upper back and shoulders. Claimant experienced tightness in his shoulders 

and pain when he elevated them. Claimant also had a 50% range of motion in his 

neck, requiring him to use mirrors while driving.
8

In May 2017, Claimant underwent an MRI scan and an EMG

(electromyography) test. The MRI scan of the cervical spine revealed degenerative 

changes and protrusions at five different levels. Claimant’s Physician agreed that 

Claimant had degenerative changes at almost every level and that the protrusions 

could be degenerative in nature. Claimant’s Physician also agreed that Claimant 

could work with restrictions of no lifting over 10 to 15 pounds, no overhead work, 

no constant turning of the neck, no repetitive use of the arms, and, on an initial basis, 

no more than 4 hours per day.

However, Claimant’s complaints of pain remained constant. In 

addition to acupuncture which provides only temporary relief, Claimant’s Physician

prescribed Tramadol, Lyrica, Mobic, Lorzone, and Cyclobenzaprine.

Claimant also testified on his own behalf regarding his medical 

treatment. Claimant began treating with Physiatrist in 2003. He began seeing 

Claimant’s Physician in 2014. Claimant sees either Physiatrist or Claimant’s 

Physician once a month. He also sees Acupuncturist once a week. Acupuncturist 

performs acupuncture on Claimant’s head, neck and upper arms. Claimant testified 

his symptoms have not changed since 2011. In addition, Claimant admitted he has 

not looked for work since 2003.

Regarding the surveillance evidence, Claimant acknowledged lifting a 

recycling bin weighing 5 to 10 pounds. He also drives his brother’s car. As a 

Jehovah’s Witness, Claimant participates in activities three to four times a week. 
9

His duties also include pulling a briefcase or cart. Sometimes, Claimant carries a 

shoulder bag with pamphlets and a tablet.

D. Dispositive Findings

WCJ McCormick made the following dispositive findings. WCJ 

McCormick found Claimant’s testimony credible in part. McCormick Op., 7/3/18, 

Finding of Fact (F.F.) No. 16. The WCJ accepted Claimant’s testimony regarding 

the work injury as fact. Id. WCJ McCormick also found credible Claimant’s 

testimony regarding his participation in weekly activities as a Jehovah’s Witness. 

Id. However, based on IME Physician’s testimony, WCJ McCormick rejected 

Claimant’s testimony concerning his ongoing symptomatology and its impact on his 

ability to return to work. Id.

Notably, WCJ McCormick found IME Physician’s opinions more 

credible than those of Claimant’s Physician. F.F. No. 17. Where the opinions of the 

two medical experts conflicted, the WCJ specifically rejected Claimant’s 

Physician’s opinions. Id. In particular, WCJ McCormick rejected Claimant’s 

Physician’s testimony that Claimant’s condition remained unchanged despite over a 

decade of treatment. Id. To the contrary, the WCJ found that Claimant’s Physician’s 

lack of findings undermined his opinions and that Claimant’s complaints of a lack 

of range of motion and pain were purely subjective. Id. In short, WCJ McCormick

found Claimant’s Physician’s testimony “less than compelling” because his 

disagreement with IME Physician’s testimony was based on Claimant’s continued 

subjective complaints of pain. Id.
10

WCJ McCormick further found that IME Physician thoroughly 

examined Claimant and reviewed his medical records for the last 10 years. F.F. No. 

18. The WCJ found particularly significant the lack of any objective findings on 

either examination or tests performed that would support a finding of ongoing 

disability. Id. The WCJ also noted IME Physician’s compelling testimony that 

Claimant is not in need of a step-down program to wean him off Tramadol, an opioid 

medication. Id. Therefore, WCJ McCormick concluded that drug rehabilitation was 

unnecessary. Id. 

Summarizing, WCJ McCormick found that IME Physician’s opinions 

of full recovery and ability to return to work were supported by the objectively 

normal results of Claimant’s physical examination. F.F. No. 20. The WCJ also 

credited IME Physician’s testimony that Claimant did not exhibit spasm upon 

examination of the cervical spine as he had in the past. Id. 

Further, although WCJ McCormick found that Claimant had only 50% 

mobility of his cervical spine, the WCJ attributed that condition to non-work-related 

degenerative disc disease. Id. To that point, WCJ McCormick specifically did not

find that Claimant’s work-related cervical sprain and strain aggravated Claimant’s 

underlying degenerative cervical conditions. Id. In addition, the WCJ did not find 

that Claimant’s bilateral shoulder discomfort disabled him or required work 

restrictions. Id. WCJ McCormick also determined that Claimant did not require 

further medical treatment for his work injury after IME Physician’s examination. Id. 
11

Accordingly, WCJ McCormick granted Employer’s termination 

petition effective March 2, 2017. The WCJ also denied Claimant’s two UR review 

petitions on the basis that all medical treatment subject to UR review, rendered after 

Claimant’s full recovery in March 2017, post-dated his full recovery, thereby 

rendering the UR review petitions moot. F.F. No. 21.

On appeal, the Board affirmed. The Board noted that IME Physician’s 

testimony of full recovery provided substantial, competent evidence to support the 

WCJ’s grant of Employer’s termination petition. The Board also rejected Claimant’s 

contention that Employer failed to establish a change in medical condition since the 

prior IME rejected by WCJ Krass in her 2015 decision.

In so doing, the Board acknowledged that where an employer failed to 

prevail in prior termination petitions, the employer must establish a change in the 

claimant’s physical condition since the preceding disability adjudication. Lewis v. 

Workers’ Comp. Appeal Bd. (Giles and Ransome, Inc.), 919 A.2d 922 (Pa. 2007). 

A change in condition may be any change in a claimant’s well-being that affects his 

ability to work. Delaware Cty. v. Workers’ Comp. Appeal Bd. (Browne), 964 A.2d 

29 (Pa. Cmwlth. 2008). However, there must be a factual finding that the claimant’s 

physical condition changed. Id. at 36.

Here, the Board observed that IME Physician examined Claimant in 

March 2017, approximately three years after the previous IME. IME Physician 

opined that Claimant’s physical condition improved to the point of full recovery. As 

noted above, WCJ McCormick credited IME Physician’s opinion that as of the date 
12

of his examination, Claimant fully recovered from his work-related cervical sprain 

and strain, and his discomfort in both shoulders. F.F. Nos. 11(d), 17. Therefore, the 

Board determined that IME Physician’s testimony established a change in 

Claimant’s physical condition warranting a termination of Claimant’s benefits. Bd. 

Op., 4/26/19, at 5. Claimant petitions for review.2

II. Discussion

A. Termination Petition

Claimant first contends the Board erred in affirming WCJ 

McCormick’s termination of benefits as of the date of IME Physician’s March 2017 

examination. In a termination petition the employer has the burden of proving by 

substantial evidence that a claimant fully recovered from his work injury. Udvari v. 

Workmen’s Comp. Appeal Bd. (USAir, Inc.), 705 A.2d 1290 (Pa. 1997).

Here, Claimant, citing Lewis, asserts IME Physician’s testimony fails 

to show any change in his condition since the 2015 disability adjudication by WCJ 

Krass. Claimant maintains the idea behind Lewis is to prevent serial termination 

petitions using the same kind of evidence in the hopes of finding a WCJ who will 

terminate benefits. Accepting the Board’s interpretation of Lewis in the present 

case, Claimant argues that all an employer would ever have to show in a subsequent 

termination petition is a later date of examination coupled with an opinion of full 

recovery, no objective findings, and an ability to return to work. In short, Claimant 

 

2 Our review is limited to determining whether the WCJ’s findings of fact are supported by 

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

violated. Phoenixville Hosp. v. Workers’ Comp. Appeal Bd. (Shoap), 81 A.3d 830 (Pa. 2013).
13

asserts that IME Physician’s testimony is the exact type of repetitive testimony that 

the Supreme Court determined does not satisfy the burden of proof in a termination 

petition. Therefore, Claimant maintains that IME Physician’s testimony does not 

establish the necessary change in physical condition required by Lewis.

We disagree. In Baumann v. Workers’ Compensation Appeal Board 

(Kellogg Co.), 147 A.3d 1283 (Pa. Cmwlth. 2016), we determined that when a WCJ 

no longer finds a claimant’s subjective complaints of pain credible, the employer 

established a change in physical condition sufficient to meet the Lewis standard. We 

recognized that a determination as to whether a claimant’s subjective complaints of 

pain are accepted is a question of fact for the WCJ.

In Baumann, a WCJ issued a 2009 decision denying a termination 

petition on the basis that the claimant credibly testified he experienced ongoing 

cervical and right arm pain despite an IME concluding that he fully recovered and 

could return to work. The WCJ noted that the claimant’s complaints of pain were 

consistent with his medical expert’s examination results.

Thereafter, the claimant, after further medical treatment and tests, 

underwent a subsequent IME. Based upon his second examination and a review of 

additional medical records, the IME physician opined that the claimant fully 

recovered from all aspects of his work injury. A different WCJ accepted the IME 

physician’s testimony as credible and rejected the claimant’s testimony as not 

credible as to his ongoing complaints of pain. The new WCJ thus found that the 

employer established a change in the claimant’s condition. On appeal, the Board 
14

affirmed. In affirming the Board, we noted the IME physician’s credited opinions,

coupled with the WCJ’s rejection of the claimant’s subjective complaints of ongoing 

pain, were sufficient to establish a change in the claimant’s condition under Lewis.

Here, in 2015 WCJ Krass rejected the testimony of Employer’s prior 

IME physician that Claimant fully recovered from his work injury. WCJ Krass also 

found credible and convincing Claimant’s testimony that he continued to suffer pain 

and disability as a result of his work injury. See Ex. C-1 (Krass Op., 4/30/15, F.F. 

Nos. 12, 14); Reproduced Record (R.R.) at 130a.

However, WCJ McCormick, in her July 2018 decision, found the 

testimony and opinions of IME Physician more credible and persuasive than those 

of Claimant’s Physician. McCormick Op., F.F. No. 17. The WCJ also stated several 

objective reasons for her credibility findings. Id. Notably, the WCJ found 

Claimant’s Physician’s testimony less than compelling because Claimant’s 

Physician cited Claimant’s subjective complaints of ongoing pain as a reason for 

disagreeing with IME Physician’s opinion of full recovery. Id. 

WCJ McCormick further found that unlike Employer’s prior IME 

physician, who admitted he did not review Claimant’s medical evidence, IME 

Physician thoroughly examined Claimant and reviewed his medical records dating 

back over 10 years. F.F. No. 18. In particular, the WCJ stated, “Significant to this 

Judge is the nature of the current medical treatment and the lack of objective findings 

both on examination and on test studies which would support a finding of ongoing 

disability.” Id. WCJ McCormick also specifically rejected Claimant’s testimony of 
15

ongoing symptomatology in favor of IME Physician’s testimony of full recovery. 

F.F. No. 16.

The WCJ also found Employer’s surveillance evidence compelling. 

F.F. No. 19. The video surveillance evidence showed Claimant lifting and carrying 

books and bags while performing religious duties as a Jehovah’s Witness. Id. Thus, 

the WCJ determined that the medical evidence and the video surveillance evidence 

both showed that Claimant fully recovered from his work injury. Id.

As we noted in Baumann, neither the Board nor this Court may reweigh 

the evidence or second guess a WCJ’s credibility determinations. In light of WCJ 

McCormick’s findings, we hold that IME Physician’s testimony, that Claimant fully 

recovered from his work injury with no residual symptomatology, combined with 

WCJ McCormick’s determination that Claimant’s subjective complaints of ongoing 

pain were not credible, established a change in Claimant’s physical condition 

sufficient to terminate Claimant’s benefits under Baumann.

B. UR Review Petitions

Claimant also contends the Board erred in affirming WCJ 

McCormick’s denial of his UR review petitions based on the medical evidence. He 

asserts that in a UR review petition, the employer’s burden is to show that the 

claimant’s treatment is no longer reasonable and necessary. Glick v. Workers’ 

Comp. Appeal Bd. (Concord Beverage Co.), 750 A.2d 919 (Pa. Cmwlth. 2000). 

Further, Claimant maintains that treatment need not improve or cure a condition or 
16

symptoms to be reasonable and necessary. Id. Rather, the temporary relief of 

chronic symptoms can make treatment reasonable and necessary. Id.

Claimant argues IME Physician’s opinions are not legally competent to 

support a denial of his UR review petitions for several reasons. Claimant asserts 

IME Physician opined that opioids were inappropriate for more than two or three 

weeks after the work injury, and that acupuncture was only reasonable for a period 

of eight weeks after the injury. Claimant maintains that prior UR determinations 

approved the use of opioid-based medication for longer periods than 2 to 3 weeks,

and the use of acupuncture for 8 to 10 years. Claimant further alleges that IME 

Physician, in rendering his opinions, relied on guidelines from the Work Loss Data 

Institute that have not been adopted in Pennsylvania. Because IME Physician based 

his opinions on facts contradicted by the record, Claimant asserts WCJ McCormick 

erred in relying on them to deny his UR review petitions.

WCJ McCormick determined Claimant fully recovered from his work 

injury and terminated his benefits as of March 2, 2017. Thus, the treatment provided 

to Claimant by Claimant’s Physician, from April 27, 2017 and ongoing, occurred 

after the effective date of the termination. In short, because WCJ McCormick 

determined that Claimant no longer needed further medical treatment for his work 

injury after IME Physician’s March 2, 2017 examination, the treatment provided to 

him after that date was not related to his work injury regardless of whether it was 

reasonable and necessary. Corcoran v. Workers’ Comp. Appeal Bd. (Capital 

Cities/Times Leader), 725 A.2d 868 (Pa. Cmwlth. 1999). We note that a UR 

determination that treatment was reasonable and necessary does not establish that 
17

the treatment was causally related to the work injury or that the claimant remained 

disabled. Id.

Similarly, the treatment provided to Claimant by Acupuncturist after 

April 7, 2017, which occurred after the date of the termination, could not be related 

to his work injury regardless of whether it was reasonable and necessary. Id.

Consequently, we detect no error in the determinations by WCJ McCormick and the 

Board that granting the termination petition rendered Claimant’s UR review 

petitions moot.3 Summarizing, because Claimant no longer needed medical 

treatment for his work injury at the time he received the treatment at issue in the UR 

review petitions, Employer was not liable for payment for that treatment regardless 

of whether it was reasonable and necessary. Id. Therefore, WCJ McCormick’s grant 

of Employer’s termination petition, effective March 2, 2017, rendered Claimant’s 

UR review petitions moot. 

III. Conclusion

For the above reasons, we detect no error in the Board’s decision 

affirming the WCJ’s order granting Employer’s termination petition and denying 

Claimant’s UR review petitions. Accordingly, we affirm the Board’s order. 

 

_________________________

ROBERT SIMPSON, Judge

 

3 A case is moot if there is no actual case or controversy in existence at all states of the 

controversy. Pap’s A.M. v. City of Erie, 812 A.2d 591 (Pa. 2002).
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Steven Jones, :

Petitioner :

:

 v. : No. 533 C.D. 2019

:

:

Workers' Compensation Appeal :

Board (SEPTA), :

Respondent :

O R D E R 

AND NOW, this 25th day of November, 2019, for the reasons stated in 

the foregoing opinion, the order of the Workers’ Compensation Appeal Board is 

AFFIRMED.

_______________________________

ROBERT SIMPSON, Judge