IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Marianne Grom, :

:

Petitioner :

:

 v. : No. 1816 C.D. 2019

: No. 1817 C.D. 2019

Workers’ Compensation Appeal : Submitted: June 12, 2020

Board (Urban Redevelopment :

Authority), :

:

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge1

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: March 19, 2021

Marianne Grom (Claimant) petitions for review of the December 3, 

2019 order of the Workers’ Compensation Appeal Board (Board), which affirmed 

the decision of a workers’ compensation judge (WCJ) denying her reinstatement 

petition and utilization review petition and granting Urban Redevelopment 

Authority’s (Employer) termination petition. Upon review, we affirm. 

On September 3, 2009, Claimant sustained a tenosynovitis repetitive 

motion injury to her right forearm during the course and scope of her employment 

as an accountant with Employer (2009 injury). Agency Record (A.R.), Item No. 10, 

1 This case was assigned to the opinion writer before January 4, 2021, when Judge Brobson 

became President Judge.
2

at 3. On April 14, 2011, Claimant sustained another work injury when a chair slid 

out from underneath her, causing her to fall to the ground and hit her head on a filing 

cabinet (2011 injury). Id. The injury was recognized as a cervical strain and head 

contusion. Id.

Claimant returned to work on August 5, 2013, with no loss in earnings 

so her benefits for both injuries were suspended. In September 2013, Employer filed 

a termination petition for both the 2009 and 2011 injuries, alleging that Claimant 

had fully recovered from those injuries. In March 2014, Claimant filed review 

petitions for the 2009 injury alleging that Employer had failed to pay medical bills

related to the injury, seeking to expand the injury to include carpal tunnel syndrome, 

and seeking a review of the medical treatment. 

On May 27, 2016, WCJ Ignasick issued a decision disposing of

Employer’s termination petition and Claimant’s review and reinstatement petitions. 

Claimant appealed to the Board, which affirmed the decision with modifications. 

The notice of compensation payable (NCP) for the 2011 injury was expanded to 

include cervical disc herniations at C5-6 and C6-7, an aggravation of Claimant’s 

preexisting carpal tunnel syndrome on her right side, an aggravation of right side 

lateral epicondylitis, and right shoulder derangement with rotator cuff, labral, and 

biceps joint pathology. Claimant was awarded temporary total disability benefits 

for the 2011 injury from March 4, 2014, through March 28, 2014, due to carpal 

tunnel surgery. Employer’s termination petition for the 2011 injury was granted 

only for the head contusion and concussion injuries. Employer’s termination 

petition for the 2009 injury was denied. Claimant’s benefits for both the 2009 and

2011 injuries remained suspended.
3

On July 11, 2017, Claimant filed a petition for utilization review (UR 

Petition), seeking review of the physical therapy provided by Josh Hubert from

March 20, 2017, and ongoing. On August 3, 2017, Employer filed termination 

petitions alleging that as of May 31, 2017, Claimant had fully recovered from her 

2009 and 2011 injuries. On September 12 and 13, 2017, Claimant filed 

reinstatement petitions for both the remaining 2009 and 2011 injuries, alleging a 

worsening of her condition since November 10, 2015. 

WCJ Crilley consolidated the UR, termination, and reinstatement 

petitions. WCJ Crilley held a hearing, during which Claimant testified on her own 

behalf and presented the deposition testimony of Dr. Snell, a board-certified

orthopedic surgeon. Employer presented the deposition testimony of Dr. Agnew, 

who is also a board-certified orthopedic surgeon. 

At a hearing on May 7, 2018, Claimant testified that her condition has 

been getting worse and she reported a pain level of 10 out of 10. Reproduced Record 

(R.R.) at 23a. Claimant complained of headaches, and burning and fizzing 

sensations beginning in her neck and collarbone, extending down into her right

bicep. Id. Claimant sought treatment for her increased pain in 2016 and had surgery 

on her right shoulder. Id. at 23a-24a. Claimant admitted that she was not currently 

experiencing any issues related to her carpal tunnel injury. Id. at 28a. Claimant 

testified that she is unable to work because of her headaches and pain, which are 

aggravated by working at a desk. Id. at 34a. Claimant admitted that she has not 

worked since May 2016. Id. at 35a. Claimant testified that she uses the computer 

at home, drives, and completes household chores. Id. at 35a-36a. 

Dr. Snell testified that Claimant began treatment at his practice in April 

2011, for a concussion and injuries to her elbow, shoulder, and neck. R.R. at 55a-
4

56a. Dr. Snell treated Claimant’s shoulder with platelet rich plasma injections three 

times between December 2011, and January 2016. Id. at 57a-58a. Dr. Snell testified 

that Claimant underwent carpal tunnel surgery in March 2014, rotator cuff repair in 

June 2014, and physical therapy. Id. at 59a. Dr. Snell testified that a 2011 magnetic 

resonance imaging (MRI) revealed disc herniations at C5-6 and C6-7. R.R. at 62a. 

Dr. Snell testified that Claimant complained of a 10 out of 10 pain level 

in June of 2016, so he ordered another MRI. R.R. at 66a-67a, 78a. Dr. Snell testified 

that based on the MRIs and Claimant’s medical history, it was his opinion that 

Claimant’s disc herniations and degeneration were incited by the 2011 injury. Id. at 

79a-80a, 83a, 86a. Dr. Snell admitted that it is possible for disc degeneration to 

occur due to aging rather than a traumatic event, and that disc herniations can be 

reabsorbed. Id. at 86a, 104a. Dr. Snell testified that he did not think that Dr. 

Agnew’s opinion is generally accepted in the medical community. Id. at 87a.2 Dr. 

2 Specifically, Dr. Snell testified at his deposition, in relevant part, as follows:

[Question:] Dr. Agnew made the statement that [Claimant]

has been treated by 24 professionals. Do you know of any one of 

them who [determined] that this is just a normal aging process and 

she no longer suffers from the trauma in the cervical area of the 2011 

injury, do you know of any other doctor that says that?

[Answer:] No. 

[Question:] Dr. Snell, is what Dr. Agnew is stating generally 

accepted in the medical community?

[Answer:] No. 

[Question:] Dr. Snell, sometimes there is more than one 

school of thought. . . . Is there any school of [thought] when you 

have four MRIs in the same spot showing traumatic degenerative 

arthritis in the osteophyte, that they have nothing to do with each 

(Footnote continued on next page...)
5

Snell testified that he is continuing to restrict Claimant’s work based solely on her

subjective report of a 10 out of 10 pain level. Id. at 107a. 

Dr. Agnew testified that he conducted an independent medical 

examination (IME) of Claimant on May 31, 2017. R.R. at 155a. Dr. Agnew also 

took a history and reviewed Claimant’s medical records. Id. at 157a. Dr. Agnew 

opined that Claimant was fully recovered from both the 2009 and 2011 injuries, and 

that any lingering issues were degenerative in nature. Id. at 187a-88a. Dr. Agnew 

testified that he reached this conclusion based on his examination of Claimant, 

Claimant’s medical records, and a lack of evidence of structural damage in 

diagnostic tests. Id. at 189a-95a. Dr. Agnew testified that Claimant is able to return 

to sedentary job duties. Id. at 199a. 

On September 28, 2018, WCJ Crilley granted Employer’s termination 

petitions for both the 2009 and 2011 injuries and denied and dismissed Claimant’s 

reinstatement petitions and UR Petition. In doing so, WCJ Crilley found as not 

credible Claimant’s testimony regarding her 10 out of 10 pain level and that there 

was no improvement in her condition over a period of years. WCJ Crilley found the 

testimony of Dr. Agnew to be credible. WCJ Crilley did not accept the testimony of 

Dr. Snell where it conflicted with the testimony of Dr. Agnew. WCJ Crilley found 

that Claimant had fully recovered from both the 2009 and 2011 injuries, and that any 

ongoing medical problems are degenerative in nature and not related to the work 

injuries. 

other and it is just a normal part of the aging process; is there any 

school of thought that says that?

[Answer:] Not that I know of. The evidence is compelling.

R.R. at 87a-88a.
6

Claimant appealed the WCJ’s decision to the Board. On December 3, 

2019, the Board affirmed the WCJ’s decision. Claimant now petitions this Court for 

review.3

Issues

On appeal, Claimant argues that WCJ Crilley erroneously rejected 

relevant competent evidence by crediting Dr. Agnew’s testimony. Claimant also 

asserts that WCJ Crilley’s findings were not supported by substantial evidence. 

Claimant further contends that WCJ Crilley erred in accepting Dr. Agnew’s opinion

because it is not generally accepted in the medical community. Finally, Claimant 

submits that WCJ Crilley erred by failing to accept the findings of WCJ Ignasick, 

from a prior termination petition decision.4 We disagree. 

Analysis

Preliminarily, we note that in a termination petition proceeding, an

employer bears the burden of proving that a claimant’s disability has ceased, or that 

any current disability is unrelated to the claimant’s work injury. Parker v. Workers’ 

Compensation Appeal Board (Dock Terrace Nursing Home), 729 A.2d 102, 104 (Pa. 

Cmwlth. 1999). “It is well established that the WCJ is the ultimate fact finder and 

is empowered to determine witness credibility and evidentiary weight.” Griffiths v. 

Workers’ Compensation Appeal Board (Red Lobster), 760 A.2d 72, 76 (Pa. Cmwlth. 

3 Our scope of review is limited to determining whether constitutional rights were violated, 

whether the adjudication is in accordance with the law, and whether necessary findings of fact are 

supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. 

§704.

4 For clarity and ease of discussion, Claimant’s arguments have been reordered. 
7

2000). As the ultimate fact finder, the WCJ’s findings are binding on appeal if they 

are supported by substantial evidence. Moore v. Workmen’s Compensation Appeal 

Board (Reading Paperboard Corporation), 652 A.2d 802, 805 (Pa. 1995). 

“Substantial evidence has been defined as such relevant evidence as a reasonable 

mind might accept as adequate to support a conclusion.” Id. 

Claimant first argues that WCJ Crilley rejected relevant competent 

evidence by crediting Dr. Agnew’s testimony that Claimant’s herniated disc injury 

had resolved and that any lingering issue is degenerative in nature.5 However, as 

articulated above, the WCJ is the ultimate fact finder, and as such has complete 

authority over credibility determinations and the weighing of evidence. Griffiths, 

760 A.2d at 76. “When medical experts testify by deposition, a WCJ’s resolution of 

conflicting evidence must be supported by more than a statement that one expert is 

deemed more credible than another.” Dorsey v. Workers’ Compensation Appeal 

Board (Crossing Construction Company), 893 A.2d 191, 195 (Pa. Cmwlth. 2006). 

5 Notably, Claimant fails to argue that the WCJ or Board capriciously disregarded relevant 

evidence. Rather, Claimant’s complaint is only that the WCJ rejected the evidence. As this Court 

has observed:

We note that “the capricious disregard standard of review,”

previously applicable where only the party with the burden of proof 

presented evidence and did not prevail before the administrative 

agency, is now “an appropriate component of appellate 

consideration in every case in which such question is properly 

brought before the court.” Leon E. Wintermyer, Inc. v. Workers’ 

Compensation Appeal Board (Marlowe), [812 A.2d 478, 487 (Pa. 

2002)]. [The e]mployer in this matter does not argue that the WCJ 

capriciously disregarded competent evidence in the record. The 

capricious disregard standard under Wintermyer is therefore 

inapplicable to this matter.

Sun Home Health Visiting Nurses v. Workers’ Compensation Appeal Board (Noguchi), 815 A.2d 

1156, 1159 n.3 (Pa. Cmwlth. 2003).
8

These credibility determinations will be upheld on appeal unless they were made 

arbitrarily or capriciously. Id. 

In crediting Dr. Agnew’s testimony, WCJ Crilley explained that Dr. 

Agnew’s opinion that Claimant had recovered from her work injuries was supported 

by the MRIs and was consistent with the opinions of Claimant’s other treating 

doctors. A.R., Item No. 10 at 10. WCJ Crilley only rejected Dr. Snell’s testimony 

where it conflicted with Dr. Agnew’s, noting that Dr. Snell himself found that 

Claimant’s current pain complaints were “tough to swallow” despite years of 

treatment and rest. Id., Item No. 10 at 11. WCJ Crilley articulated her basis for 

crediting Dr. Agnew’s testimony, and it is supported by the record. 

Claimant further argues that WCJ Crilley’s acceptance of Dr. Agnew’s 

testimony was a rejection of relevant competent evidence because she failed “to 

address the issue of Dr. Agnew[] being a professional witness.” Claimant’s Brief at 

20. However, Claimant attempted to impeach Dr. Agnew’s testimony on the basis

of how many IMEs he performs in a year, the percentage of his practice that is 

devoted to such work, and how much he is paid for his testimony. R.R. at 139a-45a. 

WCJ Crilley considered this testimony in making her credibility determinations. As 

the ultimate fact finder, the WCJ has complete authority over the weight to be 

accorded such impeachment testimony. Moore, 652 A.2d at 805. Therefore, WCJ 

Crilley’s actions in this regard are not a basis for reversing her decision. 

Claimant next argues that WCJ Crilley’s Finding of Fact Nos. 17d, 

17m, and 17r were not supported by substantial evidence. WCJ Crilley found:

d. Dr. Snell reviewed several MRIs of the cervical 

spine beginning with one taken in 2011, which showed the 

two disc herniation at C5-6 and C6-7. He said that by 

2014, the MRIs were showing some degenerative changes. 
9

He explained to the Claimant that her increased pain was 

from her discs starting to wear out a little bit. 

* * *

m. Dr. Snell testified that with disc herniations it is 

possible for some of the water or fluid content to be 

reabsorbed, or “start in.” Regarding the MRI of 2016, he 

read Dr. Whiting’s interpretation that it only showed 

central bulging at C5-6 and that the herniated disc 

appeared to have resolved. He agreed that there can be 

some reabsorption and improvement of a herniated disc, 

and agreed that once it improved to a bulge that there was 

no longer nerve root compression. Regarding the 

formation of osteophytes, Dr. Snell agreed that the 

Claimant could have developed osteophytes even if she 

had not fallen. 

* * *

r. Dr. Snell agreed that the Claimant could do some 

type of sedentary duty work, but he had not released her to 

return to her preinjury position. 

A.R., Item No. 10 at 8-9. 

Contrary to Claimant’s assertion, Dr. Snell’s testimony supports all 

three of the above findings. Dr. Snell testified that degenerative changes were 

present in Claimant’s 2014 MRI, and that the degeneration caused Claimant’s 

increased pain. R.R. at 64a-65a. Dr. Snell also testified that disc herniations can be 

reabsorbed. Id. at 104a. Dr. Snell agreed that his partner determined that Claimant’s 

C5-6 disc had reabsorbed based on Claimant’s 2016 MRI. Id. Dr. Snell agreed that 

a disc bulge does not compress the nerve root like a disc herniation does. Id. at 105a. 

Dr. Snell further agreed that Claimant could have developed osteophytes even if she 

had not fallen. Id. at 106a. Finally, Dr. Snell testified that Claimant is capable of 

performing some types of sedentary work, but he has not released her to return to 
10

her preinjury position. Id. at 114a. For these reasons, the WCJ’s Findings of Fact,

numbers 17d, 17m, and 17r, are supported by substantial evidence, and therefore 

must be accepted. We find the Board did not err in affirming the WCJ’s decision in 

this regard.

Claimant next argues that Dr. Agnew’s opinion that Claimant’s 

herniated disc injury had resolved, and that any lingering disc bulge is degenerative,

is not generally accepted in the medical community and thus does not satisfy the 

standard enunciated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).6 

Claimant is incorrect. Whether Dr. Snell disagrees with Dr. Agnew’s opinion goes 

to the weight of the testimony, not its competency, which is within the exclusive 

province of the WCJ. See Moore. Therefore, we find the Board did not err in 

affirming the WCJ’s decision in this regard. 

Lastly, Claimant complains that WCJ Crilley erred by failing to accept 

the findings of fact made by WCJ Ignasick in prior termination petition proceedings 

in this case. Specifically, Claimant argues that Dr. Agnew misidentified Claimant’s 

injury by stating that the 2011 injury was caused by a fall from a seated position. 

Claimant asserts that “the issue of a fall from a standing position in an attempt to sit 

6

In Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1045 (Pa. 2003), our Supreme Court, in 

discussing Frye, explained:

[T]he proponent of the evidence [must] prove that the methodology 

an expert used is generally accepted by scientists in the relevant field 

. . . This does not mean, however, that the proponent must prove that 

the scientific community has also generally accepted the expert’s 

conclusion. We have never required and do not require such a 

showing.

Claimant does not argue that Dr. Agnew’s methodology is not generally accepted by the medical 

community. 
11

on a wheeled chair is clear, repeated many times, and at no time did the words ‘seated 

position’ or ‘chair level’ ever appear.” Brief of Petitioner at 28 (emphasis added). 

However, Claimant misrepresents her own stipulation of facts from 

WCJ Ignasick’s May 27, 2016 decision. The stipulation states that Claimant’s 2011 

work injury “occurred while the [Claimant] was sitting in a chair which slid from 

under her,” and that “[a]t a hearing . . . [Claimant] testified that relative to the April 

2011 injury she was sitting in a chair when the chair ‘flew out.’” A.R., Item No. 61 

at 5-6 (emphasis added). We admonish Claimant that she continues to be bound by 

these stipulated facts. 

Claimant also complains that Dr. Agnew’s opinion that her current 

condition is degenerative conflicts with WCJ Ignasick’s determination of her 

injuries. However, the fact that she prevailed in a prior termination proceeding does 

not bar Employer, under the doctrines of res judicata or collateral estoppel, from 

establishing in a subsequent termination proceeding that her disability has ceased. 

Green v. Workmen’s Compensation Appeal Board (Jefferson Health Services), 711 

A.2d 575, 577 (Pa. Cmwlth. 1988). Earlier opinions of medical experts regarding 

the extent and nature of a claimant’s injury do not equate to an adjudication by a 

WCJ. Paul v. Workers’ Compensation Appeal Board (Integrated Health Services), 

950 A.2d 1101, 1105-06 (Pa. Cmwlth. 2008). Dr. Agnew is free to disagree with 

Dr. Snell regarding the current source of Claimant’s continued symptoms. See Paul. 

Therefore, the Board did not err in affirming the WCJ’s decision.

Accordingly, we affirm the Board’s order. 

MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Marianne Grom, :

:

Petitioner :

:

 v. : No. 1816 C.D. 2019

: No. 1817 C.D. 2019

Workers’ Compensation Appeal : 

Board (Urban Redevelopment :

Authority), :

:

O R D E R

AND NOW, this 19th day of March, 2021, the December 3, 2019 order 

of the Workers’ Compensation Appeal Board in the above-captioned matter is 

AFFIRMED. 

__________________________________

MICHAEL H. WOJCIK, Judge