IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph Marvelli, :

Petitioner :

:

v. : No. 22 C.D. 2023

:

U.S. Foods, Inc. (Workers’ :

Compensation Appeal Board), :

Respondent : Argued: November 9, 2023

BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE LORI A. DUMAS, Judge 

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE CEISLER FILED: December 21, 2023

Joseph Marvelli (Claimant) petitions this Court for review of a December 12, 

2022 order of the Workers’ Compensation Appeal Board (Board), which affirmed a 

decision by a workers’ compensation judge (WCJ) granting a Termination Petition

filed by U.S. Foods, Inc. (Employer). Claimant argues that the Termination Petition 

could not have been adjudicated on its merits because the description of Claimant’s 

injury description was at issue in a then-pending appeal. Furthermore, Claimant 

maintains that the WCJ erred while addressing the Termination Petition on its merits

by improperly disregarding evidence and testimony presented by Claimant. Upon 

review, we affirm the Board. 

I. Background 

At the time of the incidents leading to this case, Claimant worked for 

Employer, a foodservice distributor, as a territory sales manager. Reproduced 

Record (R.R.) at 27a. On September 14, 2017, while retrieving a stack of 3 10-
2

pound boxes from the back of his truck, Claimant experienced sudden pain in his 

neck, shoulders, and upper back. Id. An occupational health practice treated 

Claimant for neck pain three days later. Id. Pursuant to the Workers’ Compensation 

Act (Act),1 Employer accepted liability for the injury through a medical-only Notice 

of Compensation Payable (NCP), which described the injury as a strain or tear of the 

shoulder. Id. 

A. Claimant’s Petitions and Marvelli I 

On February 16, 2018, Claimant submitted Claim, Reinstatement, and Review

Petitions, in which he alleged that the injury description should be expanded to 

include injuries to his neck and back, including lumbar radiculopathy. Id. at 9a. 

Employer filed a Review Petition of its own, in which it sought to amend the injury 

description from a shoulder injury to a strain of the cervical spine, consistent with 

the results of an independent medical examination (IME) of Claimant. Id. at 27a. 

In its defense, Employer submitted the deposition testimony of Dr. Robert Mauthe, 

the doctor who performed the IME. Id. at 29a. Dr. Mauthe opined that any 

symptoms of lumbar radiculopathy stemmed not from the work injury but from an 

incident on September 30, 2017, in which Claimant suddenly experienced severe 

lower back pain while attending a youth soccer game. Id. at 30a. 

In a December 31, 2018 decision, WCJ Bruce Doman credited Dr. Mauthe’s 

testimony and denied Claimant’s Claim, Reinstatement, and Review Petitions. Id.

at 32a. Regarding Claimant’s lower back issues, WCJ Doman concluded that the 

Claimant “failed to offer expert testimony . . . to prove that the work injury 

include[d] a herniated lumbar disc.” Id. at 31a. WCJ Doman also granted 

1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710. 
3

Employer’s Review Petition, and thus amended the description of the work injury to 

a “cervical spine strain with strain of the surrounding paravertebral area.” Id. at 32a. 

On appeal to the Board, Claimant argued, inter alia, that his proposed

amendment of the injury description was erroneously rejected. Id. at 35a. In a

January 27, 2020 order, the Board remanded on the ground that the language of WCJ

Doman’s order contained “an apparent contradiction,” which the Board instructed 

him to rectify.

2

 Id. at 37a-38a. The Board explained that it was not ruling on the 

merits of Claimant’s appeal arguments, and therefore declined to discuss “the 

relevant testimony and evidence.” Id. at 37a. On remand, WCJ Doman corrected 

the mistake in a July 22, 2020 decision, while adopting and reissuing all of the factual 

findings and legal conclusions in his December 31, 2018 decision. Id. at 54a. 

Claimant appealed again to the Board, arguing that substantial evidence did 

not support the conclusion that his lower back symptoms were unrelated to the 

September 14, 2017 work injury. Id. at 70a. The Board declined to disturb the 

WCJ’s “complete authority over questions of credibility, conflicting medical 

evidence and evidentiary weight,” and affirmed. Id. at 69a (citing Greenwich 

Collieries v. Workmen’s Comp. Appeal Bd. (Buck), 664 A.2d 703, 706 (Pa. Cmwlth. 

1995)). Claimant appealed to this Court; we agreed with the Board, holding that 

WCJ Doman’s credibility determinations were “well supported by the record.” 

Marvelli v. US Foods Inc. (Workers’ Comp. Appeal Bd.) (Pa. Cmwlth., No. 561 C.D. 

2

In his December 31, 2018 decision, WCJ Doman ordered Claimant’s wage loss benefits

to be “SUSPENDED as of Claimant’s return to light duty work on April 15, 2018.” R.R. at 32a. 

Claimant, however, never received wage loss benefits, as Employer had issued a medical-only 

NCP. While remanding, the Board noted that this aspect of the WCJ’s decision created a 

contradiction: if Claimant’s Claim, Reinstatement, and Review Petitions were denied, then “the 

WCJ should not order wage loss benefits to be suspended. On the other hand, if the WCJ wanted 

Claimant to receive compensation until the return of work on April 15, 2018, the WCJ should grant 

Claimant’s Petitions, at least in part.” Id. at 37a. 
4

2021, filed Nov. 2, 2022), appeal denied, 297 A.3d 398 (Pa. 2023) (Marvelli I), slip 

op. at 7. 

B. The Termination Petition

While Claimant’s appeal of WCJ Doman’s December 31, 2018 decision was 

pending before the Board, Employer filed a Termination Petition, in which it alleged 

that Claimant was fully recovered from his work injury as of March 15, 2019. R.R. 

at 41a. The Termination Petition was assigned to WCJ Brian Puhala, who dismissed 

it in an April 22, 2019 decision, on the basis that the injury description was “not 

settled and currently on appeal to the [Board].” Id. at 43a. On June 9, 2020, the 

Board vacated WCJ Puhala’s dismissal of the Termination Petition. Id. at 51a. The 

Board explained that the December 31, 2018 WCJ decision had only been remanded 

for clarification of the language in its order, not to reexamine the issue of the injury 

description. Id. The Board thus remanded WCJ Puhala’s April 22, 2019 decision

with instructions to adjudicate the Termination Petition on its merits.3 Id. at 50a. 

On remand, WCJ Puhala heard live testimony from Claimant at hearings on 

June 23, 2021, and August 23, 2021. Claimant also presented testimony from his 

treating physician, Dr. Jeffrey McConnell, who testified at a deposition on October 

26, 2021. Employer presented testimony from Dr. Mauthe, who performed a second

IME of Claimant on March 15, 2019, and who testified at a July 22, 2021 deposition. 

The parties also offered the prior testimony of Dr. McConnell (who testified at 

depositions on July 28, 2018, and October 26, 2021), Dr. Mauthe (who testified at 

an August 14, 2018 deposition) and Claimant (who testified at an April 10, 2018 

3 Claimant petitioned this Court for review of the Board’s decision; we quashed, holding 

that Claimant was seeking an improper review of an interlocutory order. See Marvelli v. Workers’ 

Comp. Appeal Bd. (US Foods, Inc.) (Pa. Cmwlth., No. 588 C.D. 2020, filed Aug. 26, 2020), appeal 

denied, 251 A.3d 775 (Pa. 2021) (Marvelli II), slip op. at 5. 
5

hearing before a WCJ), all of which had been given in the litigation involving 

Claimant’s Claim, Reinstatement, and Review Petitions. R.R. at 351a-52a. 

1. Employer’s Evidence 

Dr. Mauthe explained that Claimant’s work injury, a strain of the cervical 

spine and surrounding paravertebral area, consists of “trauma to the muscles in the 

form of a stretching[-]type injury,” which results in neck pain. C.R., Item No. 41, 

Mauthe Dep., 7/22/2021, at 9. In contrast to radiculopathy, which causes pain over 

a wider area and for longer periods, the pain from a cervical spine strain is “confined 

to the neck and midline area,” and tends to resolve within weeks. Id. At the time of 

Dr. Mauthe’s first examination of Claimant, on March 22, 2018, Claimant’s chief 

complaint was of back pain. Id. at 13. As for his neck, Claimant explained that it 

was “not that bad” at the time, and that he no longer sought treatment for it. Id. In 

Dr. Mauthe’s view, a February 28, 2018 magnetic resonance image (MRI), 

conducted on February 28, 2018, showed “no real significant findings other than 

some mild degenerative changes, no herniations, and no foraminal compression.” 

Id. at 12. Nonetheless, Dr. Mauthe determined that Claimant did exhibit “focal 

tenderness” in the neck, a symptom of persistent cervical strain resulting from the 

September 14, 2017 work injury. Id. at 37-38. 

On March 15, 2019, Dr. Mauthe conducted a second IME of Claimant. Id. at 

13. The examination revealed “normal range of motion” in Claimant’s neck, 

shoulders, elbows, wrists, and hands. Id. at 15. Dr. Mauthe found no objective 

evidence of ongoing strains as a result of the September 14, 2017 work injury. Id.

at 16-17. A “chronic” cervical strain, persisting for a year and a half, would have 

manifested itself through two symptoms: the loss of range of motion and the 

presence of spasm or tenderness in the muscles. Id. at 17. The March 15, 2019 
6

IME revealed neither in Claimant’s case. Id. Thus, Dr. Mauthe opined within a 

reasonable degree of medical certainty that Claimant was fully recovered from his 

work injury. Id. Asked to account for Claimant’s persistent pain complaints, Dr. 

Mauthe explained that any remaining symptoms, such as numbness or tingling in his 

arms and hands, are not causally related to a cervical strain. Id. at 45-46. While 

acknowledging that cervical strains can “[i]n some cases” cause headaches, Dr. 

Mauthe dismissed the suggestion that headaches were proof that Claimant was not 

fully recovered from his work injury; after all, “[e]verybody has headaches,” Dr. 

Mauthe explained, and they “can be caused by anything.” Id. at 60-61. 

2. Claimant’s Evidence 

In his testimony, Claimant maintained that he was not fully recovered from 

his September 14, 2017 work injury. Certified Record (C.R.), Item No. 32, Hr’g Tr., 

8/23/2021, at 11. Claimant explained that he continued to experience neck pain 

when engaging in daily activities such as opening a refrigerator, reading a book, or 

driving. Id. at 12. In addition, Claimant testified that he felt “spasming” in his neck 

area, which he described as “like muscle contraction . . . in between [his] shoulder 

blade[] area,” up to his head and outward into his arms. Id. at 13. Furthermore, 

Claimant described migraine headaches that cause “severe” pain. Id. at 14. 

Claimant testified that the headaches have been “consistent” ever since the work 

injury, and that they have been “getting worse and worse.” Id. at 18. For these 

symptoms, Claimant continued to receive physical therapy, pain medication, and 

something he described as “electrical acupuncture.” Id. at 18. Claimant testified 

that, while he would be eager to return to his former position with Employer, it 

“would be impossible” given the persistence of his headaches and other symptoms. 

Id. at 19. 
7

Dr. McConnell recalled in deposition testimony that his most recent 

examination of Claimant occurred on March 26, 2019.4 C.R., Item No. 36, 

McConnell Dep., 10/26/2021, at 6. During the examination, Dr. McConnell noted a 

persistent “limitation of movement in [Claimant’s] lumbar spine” and some 

“pinprick sensation on the outside of his right foot.” Id. at 8. Dr. McConnell also 

noted Claimant’s complaints of headaches felt near the back of his head, which Dr. 

McConnell believed could originate in Claimant’s neck. Id. at 40. Dr. McConnell’s 

notes from the March 26, 2019 visit do not indicate that he performed an examination 

of Claimant’s cervical spine. Id. at 33-34. However, Dr. McConnell acknowledged 

that, when palpating Claimant’s neck and paravertebral muscles, Claimant did not 

complain of pain or tenderness in those areas. Id. at 32-33. 

Despite the absence of objective test results, Dr. McConnell diagnosed 

Claimant with cervical radiculopathy based entirely on his subjective pain 

complaints. Id. at 34. Since Dr. McConnell concluded that Claimant had reached 

maximum medical improvement in that area, he referred Claimant to a pain 

management specialist, ruling out additional surgery. Id. at 34-35. 

3. The WCJ’s Remand Decision 

In an April 13, 2022 decision, WCJ Puhala granted the Termination Petition 

and terminated Claimant’s workers’ compensation benefits as of March 15, 2019. 

See C.R., Item No. 23, WCJ Decision, 4/13/2022. WCJ Puhala credited Dr. 

Mauthe’s testimony over Dr. McConnell’s, explaining that Dr. Mauthe undertook “a 

4 Dr. McConnell first examined Claimant in October, 2017, when Claimant presented with 

pain in his lower back and right leg. Marvelli I, slip op. at 2. In a questionnaire completed for Dr. 

McConnell, Claimant stated that those symptoms suddenly began while he was attending a soccer 

game on September 30, 2017. Id. Dr. McConnell diagnosed a herniated disc in the lumbar spine, 

for which he performed an L5-S1 discectomy in December, 2017. McConnell Dep., 10/26/2021, 

at 6. 
8

detailed examination of Claimant’s cervical spine,” and offered a thorough 

explanation of why there were no objective indications of an ongoing cervical strain. 

Id. at 7. By contrast, Dr. McConnell focused almost entirely on Claimant’s lower 

back symptoms, WCJ Puhala wrote. Id. As for Claimant’s testimony, WCJ Puhala

found him credible as to his treatment history, but found that the continuing pain 

symptoms complained of in his testimony were “clearly not associated with the 

[September 14, 2017] work injury.” Id. WCJ Puhala also concluded that the 

witnesses’ testimony from the previous litigation before WCJ Doman was 

“irrelevant,” but noted that the summaries of the two medical experts’ testimony in 

WCJ Doman’s decision was “controlling.” Id. at 6 n.8, 7 n.14. 

Claimant appealed to the Board, which affirmed. See C.R., Item No. 26. This 

appeal followed.5

II. Issues

Claimant first argues that WCJ Puhala erred by addressing Employer’s 

Termination Petition while Claimant’s appeal of the injury description, as 

determined by WCJ Doman, was still pending before the Board. In addition, 

Claimant argues that WCJ Puhala erred by dismissing deposition testimony from 

previous litigation as “irrelevant” after the parties agreed to present that testimony

as evidence. Claimant also argues that WCJ Puhala improperly dismissed 

Claimant’s complaints of headaches as evidence of continued disability, and 

erroneously determined March 15, 2019 to be the relevant date when considering 

whether Claimant was fully recovered from his work injury. Lastly, Claimant 

5 Our standard of 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. Lehigh Specialty Melting, Inc. v. Workers’ Comp. Appeal Bd.

(Bosco), 260 A.3d 1053, 1058 n.3 (Pa. Cmwlth. 2021).
9

maintains that Dr. Mauthe’s testimony was equivocal, and thus cannot support WCJ 

Puhala’s factual findings. 

III. Discussion 

A. The Bechtel Power Doctrine 

Claimant first argues that Employer was barred from filing its Termination

Petition while his appeal from WCJ Doman’s December 31, 2018 decision was on 

appeal to the Board. In support, Claimant cites Bechtel Power Corporation v. 

Workmen’s Compensation Appeal Board (Miller), 452 A.2d 286, 288 (Pa. Cmwlth. 

1982), in which this Court recognized that when an appeal is pending, a party may 

not file a petition that would essentially relitigate issues identical to those to be 

reviewed on appeal. 

In Bechtel Power, a referee6 granted a claim petition and awarded disability 

benefits for an injury sustained in the course of his employment. Id. at 287. The 

employer appealed that decision to the Board, disputing that the work injury was the 

cause of the claimant’s disability; the Board ultimately affirmed the referee, as, 

subsequently, did this Court. Id.; see also Bechtel Power Corp. v. Workmen’s Comp. 

Appeal Bd., 439 A.2d 1265, 1266 (Pa. Cmwlth. 1981). While the employer’s appeal 

was pending, the employer also petitioned to terminate the claimant’s benefits, 

alleging that the disability had ceased. Id. Framing the question before the Court as 

whether “the employer should be permitted to attack the referee’s finding of 

disability, alleging that no disability occurred, while at the very same time 

petitioning for termination of benefits alleging that the disability has ceased,” we 

held in Bechtel Power that it would not be “conducive to judicial or administrative 

economy” to permit such an attack. Id. at 287-88. 

6 WCJs were referred to at the time as referees. See Section 401 of the Act, amended by 

the Act of July 2, 1993, P.L. 190, 77 P.S. § 701.
10

While reaffirming the doctrine set forth in Bechtel Power, we explained in 

Davis v. Workers’ Compensation Appeal Board (H.M. Stauffer Sons, Inc.), 760 A.2d 

899, 901 (Pa. Cmwlth. 2000) that the prohibition of a subsequent petition applies 

when both the issues and facts in the two petitions are identical. Alternately, when 

the petitions are based on different sets of facts, “i.e., different medical opinions,” 

there is no relitigation of issues that have already been decided. Id. at 902. Thus, a 

party is not barred from filing a subsequent petition while the previous petition is on 

appeal. Id. 

Claimant argues that the Termination Petition was “untimely” because his

appeal, still pending at the time of the Termination Petition’s filing, involved the 

issue of Claimant’s injury description. “Because there are common issues involving 

[] Claimant’s one body,” he explains, WCJ Puhala should never have reached “the 

merits of the [T]ermination [P]etition before the description of the injury was ever 

made final.” Claimant’s Br. at 52. Claimant argues that it “does not matter” whether 

it is the same party that files both appeals, or opposing parties. Id. at 44. Bechtel

Power must apply, Claimant further argues, whenever two appeals do not involve 

“completely separate issues.” Id. at 43. Because Claimant continued to maintain on 

appeal that he sustained lumbar radiculopathy resulting from the September 14, 2017 

work injury, he argues that Employer should not have been allowed to seek a “partial 

termination” of benefits based solely on an allegation of full recovery from the neck 

injury. Id. at 49. 

Claimant’s arguments are unavailing. In Bechtel Power, the employer filed a 

petition alleging that a disability had ceased while simultaneously arguing, on its 

own appeal, that the disability never existed. Employer’s Termination Petition, by 

contrast, does not seek to relitigate any factual findings settled by the previous 
11

litigation. As in Davis, and in contrast to Bechtel Power, the Termination Petition 

is based on a different set of facts from those underlying Claimant’s Claim, 

Reinstatement, and Review Petitions. Specifically, the Termination Petition alleges 

a full recovery based on the March 15, 2019, IME by Dr. Mauthe, in contrast to the 

doctor’s earlier opinion (explained in his testimony in the prior litigation) that 

Claimant continued to exhibit symptoms of a cervical strain in 2018. 

Most notably, Employer’s Termination Petition does not challenge the injury 

description as it was already determined by WCJ Doman. Rather, it is only Claimant 

who disputed that injury description in his own, ultimately unsuccessful, appeal. 

While it is obviously true that a WCJ’s judicial determinations have a preclusive 

effect on future litigation, Claimant fails to cite any legal authority suggesting that 

an opposing party’s allegations have a similar effect. Thus, the Board properly 

concluded that the WCJ was not barred from adjudicating the Termination Petition. 

B. The Relevance of the Experts’ Prior Testimony 

Next, Claimant argues that WCJ Puhala improperly disregarded the prior

deposition testimony of Drs. Mauthe and McConnell during the litigation before 

WCJ Doman, after “both parties agreed [the depositions] were admissible.” 

Claimant’s Br. at 58. Such testimony is indeed relevant, according to Claimant, 

because WCJ Puhala “may well not have credited the testimony of Dr. Mauthe” in 

the present litigation had he “been able or willing to weigh the serious flaws in [Dr. 

Mauthe’s] credibility” made clear in his prior testimony. Id. at 60. Claimant further 

argues that WCJ Puhala’s ruling on the testimony’s relevance raises a question of 

law, subject to this Court’s plenary review, and that it must be overturned. 

Claimant’s argument is without merit. Whether Dr. Mauthe gave credible 

testimony in the proceedings before WCJ Doman was a question for WCJ Doman, 
12

who accepted Dr. Mauthe’s testimony as fact. C.R., Item No. 49, WCJ Decision, 

12/31/2018, at 7. Claimant was, of course, free to dispute that determination in his 

appeal of WCJ Doman’s decision, but he is not free to revisit the question in 

subsequent litigation. The sole question before WCJ Puhala was whether Claimant 

was fully recovered from his work injury as of March 15, 2019. As Drs. Mauthe 

and McConnell’s prior testimony (which was given during the August 14, 2018 and 

July 28, 2018 depositions, respectively) did not address that question, WCJ Puhala

reasonably determined that such testimony was irrelevant.7 Contrary to Claimant’s 

assertions, it is well settled that a WCJ’s determination regarding the admission of 

evidence will not be overturned without a showing of an abuse of discretion. 

Kimberly Clark Corp. v. Workers’ Comp. Appeal Bd. (Bromley), 161 A.3d 446, 467 

n.26 (Pa. Cmwlth. 2017). For the foregoing reasons, we will not disturb the WCJ’s 

determination. 

C. Claimant’s Headaches

Next, Claimant argues that the WCJ erred as a matter of law when he ruled 

that Claimant’s complaints of continued headaches was irrelevant, since “the 

headaches that Claimant suffers derive directly from the recognized work injury.” 

Claimant’s Br. at 62. In support, Claimant cites his own testimony that he “gets 

migraine[-]type headaches deriving from the . . . clearly recognized work injuries.” 

Id. at 65-66. Claimant also points to remarks made by both Drs. McConnell and 

Mauthe acknowledging that a cervical strain is one possible source of headaches. 

See C.R., Item No. 36, McConnell Dep., 10/26/2021, at 40; C.R., Item No. 41, 

Mauthe Dep., 7/22/2021, at 60. 

7 To reiterate, this evidence was irrelevant since Employer’s burden was to prove that 

Claimant was fully recovered as of March 15, 2019, the date of the IME. The deposition testimony 

from the earlier litigation was given in 2018.
13

We first note that Claimant admitted in his testimony that he has been 

consistently suffering from the headaches in question ever since the injury itself. See

C.R., Item No. 32, Hr’g Tr., 8/23/2021, at 18. Yet, Claimant’s Claim, 

Reinstatement, and Review Petitions, which were filed on February 16, 2018, did

not allege that headaches were among the conditions caused by his work injury. See

Marvelli II, slip op. at 2. When an employee is aware of injuries or conditions related 

to the work injury at the time of proceedings on a review petition but fails to include 

them in his litigation, a later attempt to raise the issue is barred by the doctrine of res 

judicata. Weney v. Workers’ Comp. Appeal Bd. (Mac Sprinkler Sys., Inc.), 960 A.2d 

949, 956 (Pa. Cmwlth. 2008). As Claimant is now attempting to add headaches to 

his work injury for the first time, well after the filing of his Claim, Reinstatement, 

and Review Petitions, his claim is legally impermissible. 

Even if Claimant were not barred from newly alleging that he suffers from 

headaches resulting from the work injury, he would carry the same burden of proof 

at this stage in the case as he did when litigating his Claim, Reinstatement, and 

Review Petitions. See Liveringhouse v. Workers’ Comp. Appeal Bd. (ADECCO), 

970 A.2d 508, 512 (Pa. Cmwlth. 2009) (noting that an effort to add injuries not 

previously accepted by the employer carries the same burden of proof as a claim 

petition). Thus, to establish the causal connection between the work incident and 

the claimed injury would require “unequivocal medical testimony.” Jeannette Dist. 

Mem’l Hosp. v. Workmen’s Comp. Appeal Bd. (Mesich), 668 A.2d 249, 251 (Pa. 

Cmwlth. 1995). Other than Claimant’s own fact testimony, the only support for his 

contention involving headaches consists of remarks by both medical experts that 

cervical spine strains are one possible cause of headaches, which would not support 

Claimant’s burden of proof. For this additional reason, we see no error in the WCJ’s 
14

conclusion that Claimant’s complaints of headaches were “clearly not associated 

with the accepted . . . work injury.” See C.R., Item No. 23, WCJ Decision, 

4/13/2022, at 7. 

D. The Relevant Date of the WCJ’s Remand Decision 

Claimant next argues that WCJ Puhala erroneously assumed that he was 

limited to determining whether Claimant was fully recovered from his work injury 

as of March 15, 2019, the date of Dr. Mauthe’s second IME of Claimant. In fact, 

Claimant argues, WCJ Puhala disregarded the Board’s “clear direction” in its 

remand order to decide “whether Claimant is fully recovered from” the work injury. 

C.R., Item No. 52, Board Op., 6/9/2020, at 4 (emphasis added). In Claimant’s view, 

the Board’s use of the present tense “is” clearly indicates that WCJ Puhala was to 

determine Claimant’s condition as of the date of the order, rather than March 15, 

2019. Claimant then argues that WCJ Puhala improperly disregarded evidence that 

Claimant was not fully recovered from his work injury as of March 26, 2019, the 

date of his most recent examination by Dr. McConnell. Specifically, Claimant 

alleges that his referral by Dr. McConnell to a pain management specialist 

establishes that Claimant continued to be disabled by the work injury after March 

15, 2019. 

We first note that Claimant’s proposed interpretation of the Board’s June 9, 

2020 remand order, although novel, is unconvincing. Had the Board intended to 

direct the WCJ to take the unusual step of adjudicating the Termination Petition as 

of June 9, 2020, it was free to clarify its position in its review of the WCJ’s remand 

decision after Claimant appealed. The Board declined to do so; instead, in affirming 

the WCJ, the Board rejected Claimant’s argument as one of mere “semantics.” C.R., 

Item No. 26, Board Op., 12/12/2022. 
15

Employer’s Termination Petition unambiguously alleged “[f]ull [r]ecovery” 

as of March 15, 2019. C.R., Item No. 2. Thus, the question before the WCJ was 

whether Claimant remained disabled from his work injury on that date. If Claimant 

seeks to reinstate benefits based on symptoms occurring after that date, then it is his 

burden to show that his earning power is “once again adversely affected by his . . . 

disability, and that such disability is a continuation of that which arose from his . . .

original claim.” Bufford v. Workers’ Comp. Appeal Bd. (North Am. Telecom), 2 

A.3d 548, 558 (Pa. 2010). As Claimant made no attempt to do so in this instance, 

we see no error in the WCJ’s decision to disregard any evidence of Claimant’s 

condition after March 15, 2019.8 

E. The Sufficiency of Dr. Mauthe’s Testimony 

Finally, Claimant argues that the WCJ committed legal error by relying on the 

“equivocal” medical testimony of Dr. Mauthe. Claimant’s Br. at 74. Claimant 

explains that Dr. Mauthe’s two examinations of Claimant were “objectively 

identical,” yet resulted in two, conflicting conclusions by Dr. Mauthe. Id. at 75. 

Such a discrepancy proves, according to Claimant, that those conclusions were the 

products of Dr. Mauthe’s own “whim.” Id. at 74. 

Claimant’s argument is meritless. During his first examination of Claimant, 

on March 22, 2018, Dr. Mauthe observed “focal tenderness,” a cervical strain 

symptom, and opined that Claimant was not fully recovered from that injury. C.R., 

8 Even if Claimant had properly argued for a reinstatement of benefits as of March 26, 

2019, it should be noted that Dr. McConnell’s referral to a pain management specialist is irrelevant. 

Dr. McConnell did not testify that he referred Claimant to a pain management specialist because 

of continued pain symptoms in Claimant’s neck. See C.R., Item No. 36, McConnell Dep., 

10/26/2021, at 34. Indeed, Dr. McConnell’s decision was based on Claimant’s subjective pain 

complaints, rather than any objective finding of persistent neck injury; as discussed previously, 

Dr. McConnell’s records of the March 26, 2019 visit do not even indicate a specific examination 

of Claimant’s cervical spine or surrounding area. Id. at 33-34. 
16

Item No. 41, Mauthe Dep., 7/22/2021, at 37-38. At the second examination, on 

March 15, 2019, Dr. Mauthe observed no such symptoms of the work injury, and 

therefore opined that Claimant was fully recovered. In other words, while Dr. 

Mauthe may have employed identical methods in both examinations, they were not 

“objectively identical,” because Dr. Mauthe had a basis for concluding after the 

second examination that Claimant’s condition had changed between those two dates. 

Thus, the WCJ did not err by crediting Dr. Mauthe’s testimony. 

IV. Conclusion 

Employer was not barred by the Bechtel Power doctrine from filing its 

Termination Petition, and met its burden of proof before WCJ Puhala that Claimant 

was fully recovered from his work injury as of March 15, 2019. Claimant provides 

no legitimate basis for this Court to disturb WCJ Puhala’s decision granting the 

Termination Petition. Accordingly, we affirm the Board. 

__________________________________

ELLEN CEISLER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph Marvelli, :

Petitioner :

:

v. : No. 22 C.D. 2023

:

U.S. Foods, Inc. (Workers’ :

Compensation Appeal Board), :

Respondent :

O R D E R

AND NOW, this 21st day of December, 2023, the order of the Workers’ 

Compensation Appeal Board in the above-captioned matter, dated December 12, 

2022, is hereby AFFIRMED. 

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ELLEN CEISLER, Judge