IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Samuel Betancourt, :

:

Petitioner :

:

v. : No. 2030 C.D. 2015

: Submitted: August 12, 2016

Workers’ Compensation Appeal :

Board (Exel, Inc., New Hampshire :

Insurance Company and :

Sedgwick CMS), :

:

Respondents :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE COLINS FILED: September 8, 2016

Samuel Betancourt (Claimant) petitions for review of the September 

24, 2015 order of the Workers’ Compensation Appeal Board (Board) that affirmed 

the July 10, 2014 decision and order of the Workers’ Compensation Judge (WCJ), 

which, pursuant to the Workers’ Compensation Act1(Act), granted the

Termination Petition filed by Exel, Inc. (Employer), based on the conclusion that 

Claimant had fully recovered from a low back strain and sprain work-related 

 

1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
2

injury.2 Claimant argues before this Court that the Board erred in affirming the 

WCJ’s decision because the WCJ erroneously relied on the testimony of Dr. 

Stanley R. Askin, M.D., to grant Employer’s Termination Petition. Claimant 

contends that Dr. Askin’s testimony is insufficient as a matter of law to support the 

WCJ’s finding that Claimant has fully recovered from his work-related injury 

because Dr. Askin did not acknowledge in his testimony the work-related injury 

accepted by Employer in its Notice of Compensation Payable (NCP). For the 

following reasons, we affirm the Board.3

Claimant suffered a work-related injury on July 17, 2012, when he 

was packing a shelving unit. (WCJ Decision, Findings of Fact (F.F.) ¶¶1-2.) 

Employer issued a medical-only NCP accepting Claimant’s injury as a strain 

and/or sprain of his lower back. (Id. F.F. ¶2; July 31, 2012, NCP.) On May 10, 

2013, Employer filed a Termination Petition alleging that as of April 16, 2013, 

Claimant was fully recovered from his work-related injuries. (Employer’s 

Petitioner to Terminate.) On May 9, 2013, Claimant testified before the WCJ. 

(May 9, 2013, Hearing Transcript (H.T.).) On July 23, 2013, Christopher 

Wagener, M.D., a board-certified orthopedic surgeon with a specialty in spinal 

surgery, testified on behalf of Claimant. (WCJ Decision, F.F. ¶6; Wagener Dep., 

 

2 Before the Board, Claimant raised other issues for review; however, Claimant’s appeal before 

this Court is limited to the Board’s affirmance of the WCJ’s grant of Employer’s Termination 

Petition and does not encompass the Board’s determination regarding litigation fees, denial of 

Claimant’s Review Petition or the grant of Claimant’s Claim Petition. (See February 17, 2016 

Order, Docket No. 2030 C.D. 2015; December 29, 2015 WCJ Order; September 24, 2015 Board 

Order.)

3 Our review is limited to determining whether there has been any error of law or violation of 

constitutional rights, and whether the WCJ’s necessary findings of fact are supported by 

substantial evidence. Anderson v. Workers’ Compensation Appeal Board (Penn Center for 

Rehab), 15 A.3d 944, 947 n.1 (Pa. Cmwlth. 2010).
3

Notes of Testimony (N.T.) at 5.) On September 25, 2013, Stanley R. Askin, M.D., 

a board-certified orthopedic surgeon, testified on behalf of Employer. (WCJ 

Decision, F.F. ¶7; Askin Dep., N.T. at 5.) The WCJ issued a decision and order on 

July 10, 2014, in which the WCJ found credible Claimant’s testimony concerning 

the occurrence of his work-related injury and Claimant’s testimony regarding his 

termination from employment after his use of Oxycodone and Flexeril to treat his 

work-related injury caused him to fall asleep while operating a jack; however, the 

WCJ found Claimant’s testimony in all other respects to be incredible and 

unpersuasive.4 (WCJ Decision, F.F. ¶¶4, 6, 8.) The WCJ also rejected as not 

credible or persuasive the testimony of Dr. Wagener because, having determined 

that Claimant’s testimony was “largely unworthy of belief,” the WCJ found that 

the credibility of Dr. Wagener “can rise no higher than that of the Claimant.” (Id.

F.F. ¶9(1).) Furthermore, the WCJ found that Dr. Wagener’s opinion as to how 

Claimant could suffer a work-related herniated disc on his left side and yet suffer 

symptoms on his right side was “wholly unconvincing,” and that the opinions of 

Dr. Askin were consistent with Claimant’s MRI results and more credible and 

persuasive. (Id. F.F. ¶9(2)-(3).) The WCJ specifically accepted the testimony and 

opinions of Dr. Askin “as credible, persuasive and consistent with the Claimant’s 

diagnostic test results and clinical examination results,” and, on the basis of Dr. 

Askin’s credible testimony, concluded that Employer demonstrated that Claimant 

 

4

The WCJ specifically rejected Claimant’s remaining testimony because: “1) The Claimant has 

been complaining of right-sided low back symptoms since the occurrence of his work injury. 

The only diagnostic test the Claimant underwent was the lumbar MRI which indicated the 

Claimant had a herniation/protrusion on the left; 2) The Claimant’s prior treating physician, Dr. 

Vrablik, examined the Claimant on five occasions and at no time diagnosed Claimant with 

radiculopathy; 3) The testimony of Dr. Askin is more credible, persuasive and consistent with the 

Claimant’s MRI results.” (WCJ Decision, F.F. 8(1)-(3).)
4

was fully recovered from his work-related injuries as of April 16, 2013. (Id. F.F. 

¶10, Conclusions of Law (C.L.) ¶4.)

Claimant appealed to the Board and the Board issued a decision and 

order on September 24, 2015 affirming the WCJ. In its decision, the Board 

reviewed Dr. Askin’s testimony and concluded that it was competent to support a 

termination of workers’ compensation benefits because, although Dr. Askin 

testified that there was no clinical evidence of any injury, Dr. Askin assumed for 

purposes of evaluating recovery that Claimant had experienced the work-related 

injury accepted by the NCP. (Board Decision at 7-8.) Claimant appealed the 

Board’s decision and order to this Court and argues that the Board’s conclusion 

that Dr. Askin’s testimony was sufficient to support a termination of benefits was 

based on a misapplication of law.

Section 407 of the Act provides that NCPs “shall be valid and binding 

unless modified or set aside,” in accordance with the Act. 77 P.S. § 731. The Act 

provides specific procedures by which an employer or a claimant can seek to 

modify or expand the injury described in the NCP, but the purpose of a 

Termination Petition is to stop payment of benefits for the sole reason that the 

claimant has recovered from the work-related injury; neither party may use a 

Termination Petition as a means to alter the injury described in the NCP.

Where an employer files a Termination Petition alleging that the 

claimant is no longer in need of workers’ compensation benefits, the employer 

must demonstrate by substantial evidence that either the claimant’s disability has 

ceased, or that any remaining conditions are unrelated to the work-related injury 

sustained by the claimant. Gillyard v. Workers’ Compensation Appeal Board 

(Pennsylvania Liquor Control Board), 865 A.2d 991, 995 (Pa. Cmwlth. 2005) (en 
5

banc). An employer may satisfy its burden by presenting unequivocal and 

competent evidence of the claimant’s full recovery from the work-related injuries. 

Westmoreland County v. Workers’ Compensation Appeal Board (Fuller), 942 A.2d 

213, 217 (Pa. Cmwlth. 2008). If the medical evidence offered by employer 

consists of an expert whose opinion fails to recognize the accepted work-related 

injury, the evidence is insufficient to support a termination of benefits. Central 

Park Lodge v. Workers’ Compensation Appeal Board (Robinson), 718 A.2d 368, 

370 (Pa. Cmwlth. 1998) (“In order to terminate [c]laimant’s benefits, [e]mployer 

was required to prove that [c]laimant was completely recovered from all of these 

injuries, including the head injuries. Because [e]mployer’s medical expert, Dr. 

Valentino, completely failed to address [c]laimant’s head injury, his testimony is 

insufficient as a matter of law.”).

In GA & FC Wagman, Inc. v. Workers’ Compensation Appeal Board 

(Aucker), 785 A.2d 1087 (Pa. Cmwlth. 2001), this Court held that the testimony of 

the employer’s medical expert was insufficient to support a termination of the 

claimant’s benefits because the medical expert opined that claimant’s injuries were 

different than the injury described in the NCP and, therefore, it was impossible for 

the expert’s evidence to support a finding that the claimant was fully recovered. 

Id. at 1092. The injury described in the NCP in GA & FC Wagman, was an 

“exacerbation of pseudoarthrosis L4-5.” Id. at 1089. However, the employer’s 

expert testified that the work-related injury sustained by the claimant was a sprain 

to the muscle ligaments in his back, which had since been resolved, and that while 

it was possible that the claimant suffered from pseudoarthrosis at the L4-5 region 

as a result of a fusion procedure, the pseudoarthrosis was of no consequence to the 

claimant’s disability. Id. At no time had the employer in GA & FC Wagman filed 
6

a Review Petition seeking to change the description of the injury in the NCP or had 

the WCJ found that the injury was materially incorrect; therefore, it was incumbent 

upon the employer to produce evidence that the claimant had recovered from the 

injury described in the NCP, which it had failed to do. Id. at 1092; see also 

Westmoreland, 942 A.2d at 218 (where the WCJ had previously found that the 

claimant had a herniated L–5 disc and lumbar radiculopathy, the testimony of the 

employer’s expert that characterized the claimant’s injury as a low-energy back 

injury or strain that the claimant was fully recovered from could not support a 

termination of benefits).

The medical evidence in GA & FC Wagman was of a different kind 

from that offered by the employer seeking termination of benefits in To v. 

Workers’ Compensation Appeal Board (Insaco, Inc.), 819 A.2d 1222 (Pa. Cmwlth. 

2003). In To, the employer’s medical expert testified that he had difficulty seeing 

how the work-related injury could have happened based on the description of the 

injury and the claimant’s self-report of symptoms, which appeared magnified to 

the expert. Id. at 1225. The employer’s medical expert in To further testified that 

he found no connection between the claimant’s complaints and the work injury that 

may or may not have happened, and that because there was no evidence of current 

impairment it was the expert’s opinion that the claimant had fully recovered from 

any injury he may have sustained in the course of employment. Id. This Court 

held that the evidence offered by the employer’s expert was sufficient to support a 

termination of benefits because the expert clearly determined that the claimant had 

fully recovered from the work injury, despite the expert’s doubts concerning the 

occurrence of the injury. Id.
7

What distinguishes the testimony offered in To from that offered in 

GA & FC Wagman was the medical expert’s knowledge of the accepted work 

injury, examination of the claimant and the claimant’s medical history to determine 

if the claimant had recovered from that specific injury, and ultimately, the credible 

opinion that the claimant had recovered. See also Elberson v. Workers’ 

Compensation Appeal Board (Elwyn, Inc.), 936 A.2d 1195, 1200 (Pa. Cmwlth. 

2007) (“At a bare minimum, the expert must know what the accepted work-related 

injury was to be competent to testify that a claimant has fully recovered from a 

work-related injury.”). In order for a medical expert’s opinion to be competent to 

support a termination of benefits, it is not necessary that the expert believe that the 

work-related injury occurred or that it occurred in the manner found by the WCJ, 

rather it is sufficient that the expert assumes the presence of the injury and bases 

any opinions regarding recovery on the question of whether or not the accepted 

injury continues to disable the claimant. Hall v. Workers’ Compensation Appeal 

Board (America Service Group), 3 A.3d 734, 741 (Pa. Cmwlth. 2010); Jackson v. 

Workers’ Compensation Appeal Board (Resources for Human Development), 877 

A.2d 498, 503 (Pa. Cmwlth. 2005); To, 819 A.2d at 1225.

In the instant matter, Claimant focuses this Court’s attention on Dr. 

Askin’s testimony that Claimant “had fully recovered from whatever may have 

troubled him in July of 2012.”

5

(Askin Dep., N.T. at 12.) Claimant contends that 

 

5 Dr. Askin’s opinion was given on direct examination during the following exchange:

Q. Following your review of his records and his examination, did 

you reach an opinion within a degree of reasonable medical 

certainty?

A. Yes.
8

Dr. Askin’s opinion is akin to the medical evidence found insufficient in GA & FC 

Wagman, and a recent unreported decision, County of Allegheny v. Workers’ 

Compensation Appeal Board (Murphy), (Pa. Cmwlth. No. 570 C.D. 2015, filed 

February 5, 2016), slip op., 2016 WL 453506, where this Court concluded that the 

expert’s opinion that the claimant had fully recovered was “worthless” because the 

expert repeatedly opined that the claimant’s injury was not work-related and 

refused to submit an affidavit of recovery.6 County of Allegheny, slip op. at 8, 

2016 WL 453506 *4. However, the testimony found lacking in GA & FC Wagman

and County of Allegheny stands in stark contrast to the testimony given by Dr. 

Askin. 

Dr. Askin did not reject or refuse to acknowledge Claimant’s workrelated injury but instead thoroughly testified regarding his opinion that Claimant 

had recovered from the work-related low back strain and sprain described in the 

NCP based on his examination of Claimant, review of Claimant’s history and 

medical records, and his own education and experience as an orthopedic surgeon. 

When asked on cross-examination whether Dr. Askin believed that the Claimant 

was at his “maximum medical improvement,” Dr. Askin unequivocally answered 

 

Q. What was that opinion?

A. That as of the time that I saw him, which was April 2013 and 

this is referencing an injury or alleged injury which occurred in 

July of 2012, I did consider that he was a middle-aged person, that 

he had age appropriate lumbar spondylosis and as a bottom line 

consideration that he had fully recovered from whatever may have 

troubled him in July of 2012.

(Askin Dep., N.T. at 12.)

6

 This Court’s unreported decisions are not binding precedent but may relied upon for their 

persuasive value. 210 Pa. Code § 69.414(a). 
9

“Yes, there is nothing that he requires based on the injury that is described.” 

(Askin Dep., N.T. at 33.) Furthermore, unlike the expert in County of Allegheny, 

Dr. Askin had no qualms about swearing an affidavit of recovery consistent with 

his testimony. (Askin Dep., Exh A-3.)

Nevertheless, it is clear from snippets of Dr. Askin’s testimony that he 

maintained a level of skepticism regarding Claimant’s work-related injury. For 

example, on cross-examination, the following exchange took place:

Q. Okay. So are—all right. Now, in your report on Page 

Three, the very bottom of the page, you indicate that 

there were no edema -- there was no edema or tears of 

the soft tissues according to the MRI Report that you 

received, is that correct?

A. Yes.

Q. Would I be correct in saying that tears of the soft 

tissues and edema would typically not show up on an 

MRI?

A. Well, if there was a real injury it should. When 

people talk about sprains and strains, by definition, a 

sprain is a partial tear of a ligament and strain is a partial 

tear of a muscle. If Mr. Betancourt had actually been 

injured, there would be such a finding.

(Askin Dep., N.T. at 31.) However, skepticism alone does not render a medical 

expert’s testimony incompetent nor do pieces of testimony examined outside the 

context of the whole. In O’Neill v. Workers’ Compensation Appeal Board (News 

Corp. Ltd.), 29 A.3d 50 (Pa. Cmwlth. 2011), we rejected the argument that a 

medical expert’s statement that “I don’t buy [the work-related injury]. It may have 
10

been accepted by the judge, but I’m pretty skeptical that she actually suffered 

anything working at that job,” holding instead that “notwithstanding [the medical 

expert’s] expressed skepticism, as noted by [c]laimant, his testimony as a whole is 

akin to testimony this Court has found to be competent and legally sufficient to 

support a termination of benefits.” Id. at 55. Such is the testimony given by Dr. 

Askin; when examined as a whole, Dr. Askin clearly and unequivocally opined in 

his testimony that Claimant had recovered from the work-related injury described 

in the NCP. This testimony was found credible by the WCJ, who is free to accept 

or reject the testimony of any witness, lay or medical, and who is the ultimate 

finder of fact and the exclusive arbiter of credibility and evidentiary weight in 

workers’ compensation proceedings. Daniels v. Workers’ Compensation Appeal 

Board (Tristate Transport), 828 A.2d 1043, 1052 (Pa. 2003); SCI-Waymart v. 

Workers’ Compensation Appeal Board (Feldman), 766 A.2d 900, 902 (Pa. 

Cmwlth. 2000). Therefore, as we did in To, we hold that the testimony offered by 

Employer’s medical expert, when examined as a whole, is legally sufficient to 

support granting Employer’s Termination Petition. 

Accordingly, we affirm the Board’s order.

__________ ___________________________

JAMES GARDNER COLINS, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Samuel Betancourt, :

:

Petitioner :

:

v. : No. 2030 C.D. 2015

: 

Workers’ Compensation Appeal :

Board (Exel, Inc., New Hampshire :

Insurance Company and :

Sedgwick CMS), :

:

Respondents :

O R D E R

AND NOW this 8

th day of September, 2016, the order of the Workers’ 

Compensation Appeal Board in the above-captioned matter is AFFIRMED. 

__________ ___________________________

JAMES GARDNER COLINS, Senior Judge