IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Carmelo Olivares Hernandez, :

Petitioner :

:

v. :

:

Workers’ Compensation Appeal :

Board (F&P Holding Co.), : No. 1820 C.D. 2017

Respondent : Submitted: April 20, 2018

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY 

JUDGE COVEY FILED: July 19, 2018

Carmelo Olivares Hernandez (Claimant) petitions this Court for review 

of the Workers’ Compensation (WC) Appeal Board’s (Board) November 28, 2017 

order which affirmed the Workers’ Compensation Judge’s (WCJ) decision granting

F&P Holding Company’s (Employer) Petition to Terminate Compensation Benefits 

(Termination Petition), and reversed the WCJ’s decision granting Claimant’s Petition 

to Reinstate Benefits (Reinstatement Petition), and awarding Claimant litigation 

costs. The sole issue before this Court is whether the Board erred by affirming the 

WCJ’s decision granting the Termination Petition. After review, we affirm.

On August 12, 2011, while working for Employer as a maintenance 

worker, Claimant sustained an upper back injury. On July 31, 2012, Employer issued 

a medical-only Notice of Compensation Payable (NCP) acknowledging the injury as 

a thoracic sprain. At the time of the injury, Claimant was performing modified duty 

resulting from an earlier 2006 work-related lumbar spine injury. 

In September 2013, Claimant presented Employer with work restrictions 

pursuant to a Functional Capacity Evaluation (FCE). Thereafter, Employer laid off 
2

Claimant. On October 1, 2013, Claimant filed the Reinstatement Petition alleging a 

decrease in earning power following the 2011 injury. On October 23, 2013, 

Employer filed an answer thereto, admitting that Claimant was laid off because 

Employer could not accommodate his work restrictions, but denying that the 

restrictions were related to the work injury. On March 14, 2014, Employer sent 

Claimant to Christian Fras, M.D. (Dr. Fras) for an Independent Medical Examination 

(IME). On April 29, 2014, Employer filed its Termination Petition seeking to 

terminate WC benefits effective March 14, 2014 based on Claimant’s alleged full 

recovery from the thoracic sprain and his ability to return to unrestricted work.

On February 6, 2015, the WCJ granted both the Reinstatement Petition 

and the Termination Petition finding that Claimant was totally disabled from 

September 30, 2013 through March 14, 2014 resulting from the work injury, but was 

fully recovered thereafter. Both parties appealed from that decision. On April 25, 

2016, the Board issued an order reversing the WCJ’s decision granting reinstatement, 

and finding that there was insufficient record evidence to support the WCJ’s 

conclusion that Claimant’s August 12, 2011 work injury affected his earning power. 

The Board ruled that Claimant’s inability to work as of September 30, 2013, was at 

least in part, due to a lumbar spine condition unrelated to the work injury. In 

addition, the Board vacated the grant of the Termination Petition and remanded the 

matter to allow the WCJ to reopen the record and consider the deposition testimony

of Claimant’s chiropractor and medical expert, Donna Kulp, D.C. (Dr. Kulp). 

On remand, the WCJ found Claimant’s live testimony credible and Dr. 

Fras’ deposition testimony more credible than Dr. Kulp’s deposition testimony. The 

WCJ again granted both petitions, awarded Claimant indemnity benefits from 

September 30, 2013 through March 14, 2014, and terminated benefits effective 

March 14, 2014. The WCJ also awarded litigation costs to Claimant. Both parties 

appealed to the Board. On November 28, 2017, the Board affirmed the WCJ’s 
3

decision granting the Termination Petition, but reversed the WCJ’s decision granting 

the Reinstatement Petition and reversed the litigation cost award.1 Claimant appealed 

to this Court.2

Initially, 

[i]t is solely for the WCJ, as the factfinder, to assess 

credibility and to resolve conflicts in the evidence. In 

addition, it is solely for the WCJ, as the factfinder, to 

determine what weight to give to any evidence. As such, 

the WCJ may reject the testimony of any witness in whole 

or in part, even if that testimony is uncontradicted.

Empire Steel Castings v. Workers’ Comp. Appeal Bd. (Cruceta), 749 A.2d 1021, 

1024 (Pa. Cmwlth. 2000) (citations omitted).

Claimant contends that the Board erred by affirming the WCJ’s decision 

granting the Termination Petition. The crux of Claimant’s argument is that because 

the WCJ found Claimant’s testimony credible, both the WCJ and the Board erred 

when they approved the Termination Petition. Claimant asserts that his testimony 

that he was not fully recovered from the work injury, needed work restrictions and 

additional treatment, and still experienced pain, was sufficient to deny the 

Termination Petition.

Relying on Udvari v. Workmen’s Compensation Appeal Board (U.S. Air, 

Inc.), 705 A.2d 1290 (Pa. 1997), the Board properly explained that an employer’s 

burden in a termination petition 

 

1 The Board reversed the WCJ’s decision granting the Reinstatement Petition and awarding 

litigation costs because the Board’s April 25, 2016 order vacated only the WCJ’s granting of the 

Termination Petition and remanded to allow the WCJ to consider Dr. Kulp’s deposition testimony,

and to make new findings of fact and conclusions of law relating to the Termination Petition. Thus, 

the Reinstatement Petition and litigation costs were not properly before the WCJ on remand.

2

“On review[,] this Court must determine whether constitutional rights were violated, errors 

of law were committed, or necessary findings of fact were supported by substantial competent

evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d 598, 601 n.6 

(Pa. Cmwlth. 2014). Claimant appeals only from the grant of the Termination Petition.
4

is met when an employer’s medical expert unequivocally 

testifies that it is his or her opinion, within a reasonable 

degree of medical certainty, that the claimant is fully 

recovered, can return to work without restrictions, and that 

there are no objective medical findings that either 

substantiate any ongoing complaints of pain or connect 

them to the work injury.

Board Op. at 4. In Udvari, the Pennsylvania Supreme Court explained:

The determination of whether a claimant’s subjective 

complaints of pain are accepted is a question of fact for the 

WCJ. In the absence of objective medical testimony, the 

WCJ is neither required to accept the claimant’s assertions, 

nor prohibited from doing so. Testimony by the employer’s 

medical expert as to the existence of the claimant’s 

complaints of pain does not require the WCJ to find for the 

claimant. A contrary conclusion would lead to the absurd 

result that a claimant could forever preclude the termination 

of benefits by merely complaining of continuing pain. 

What is relevant in deciding whether the termination of 

benefits is warranted is whether the claimant suffers 

from pain as a result of the work-related injury. 

. . . . In a case where the claimant complains of continued 

pain, this burden is met when an employer’s medical 

expert unequivocally testifies that it is his opinion, 

within a reasonable degree of medical certainty, that the 

claimant is fully recovered, can return to work without 

restrictions and that there are no objective medical 

findings which either substantiate the claims of pain or 

connect them to the work injury. If the WCJ credits this 

testimony, the termination of benefits is proper. 

Udvari, 705 A.2d at 1293 (bold emphasis added; footnotes omitted).

In the instant matter, Employer’s expert, Dr. Fras, testified:

[Claimant’s] physical examination was entirely objectively 

normal. There was nothing objective that would demand 

any restriction of activity. Certainly the radiographic 

findings on [Claimant’s] imaging study are quite modest in 

nature and certainly not ones that would preclude his 

working and not ones that would demand a restriction of 

activity. 
5

. . . .

The findings on the MRI are not ones that are indicative 

of an ongoing thoracic sprain. They are modest and 

degenerative in nature and are unrelated to a thoracic 

sprain.

The subjective complaints offered by Dr. Kulp in her 

description of [Claimant’s] condition are not ones that are 

supported by objective findings either on evaluation or on 

radiographic assessment. They are not subjective 

complaints that would preclude an individual from working 

and are not ones that demand by their nature restriction of 

activity.

Reproduced Record (R.R.) at 109a-110a (emphasis added). In fact, Claimant 

acknowledges, in his brief to this Court, Dr. Fras’ testimony that Claimant’s March 

14, 2014 examination “was objectively normal with full stride, normal sensation, 

intact reflexes and no muscle spasm[.]” Claimant Br. at 9. Claimant also concedes 

that “Dr. Fras testified that he saw no residuals of a thoracic sprain or strain and the 

MRI of the thoracic spine from [October 5, 2011] showed only degenerative changes 

and trivial disc bulges[.]” Id. Finally, Claimant recognizes that the WCJ found Dr. 

Fras credible. 

However, Claimant asserts that five months after Dr. Fras’ examination, 

Claimant testified that he continues to have pain in his upper back and that his 

treatment with Dr. Kulp is beneficial. At that time, he also testified that he has not 

fully recovered from the injury and had no new injuries. He emphasizes that Udvari

is distinguishable because in the instant matter, the WCJ specifically found his postIME testimony credible, while in Udvari, there were no such findings.

3 Claimant 

 

3 Although Claimant testified that he still experienced pain and Dr. Fras did not expressly

discount that claim, this Court has recognized that “the mere reluctance of a physician to discount a 

claimant’s unconfirmed subjective complaints is not tantamount to an implicit admission that the 

claimant is not fully recovered from a work-related disability.” Laird v. Workmen’s Comp. Appeal 

Bd. (Michael Curran & Assocs.), 585 A.2d 602, 604 n.3 (Pa. Cmwlth. 1991). With respect to back 
6

contends that the WCJ’s crediting of Dr. Fras’ testimony and granting termination of 

Claimant’s benefits is inconsistent with the WCJ’s finding that Claimant’s testimony 

of ongoing pain and lack of full recovery was credible. 

This Court addressed similar circumstances in Pella Corp. v. Workers’ 

Compensation Appeal Board (Wertz) (Pa. Cmwlth. No. 2144 C.D. 2008, filed July 1, 

2009).

4

 In Pella, the WCJ granted the employer’s termination petition, and the Board 

reversed. On review, this Court considered whether there was substantial record 

evidence to support the WCJ’s finding that the claimant had fully recovered from a 

work-related low back strain. According to the claimant, in 2005, while pulling carts 

of glass, she experienced pain in her lower back and in her right leg. The employer 

recognized the injury as a “strain, unrelated to prior surgery.” Id., slip op. at 2. The 

claimant testified that she underwent back surgery in 2006, and, following the 

surgery, she continued to experience back pain and occasional pain down her leg. 

She admitted she also underwent surgery in 2003 for a non-work-related back 

problem and continued to experience back pain up until the 2005 work injury. 

Further, she presented her treating physician’s deposition testimony, wherein, the 

physician explained that he performed surgery in April 2006 for a work-related injury 

and that the claimant was not fully recovered from the work injury because she still 

had restrictions related to the surgery. On cross-examination, her physician admitted 

that the claimant had experienced chronic back pain since 1994 and previously had 

degenerative disc disease. Her physician also testified that the surgery he performed 

for her work-related injury was successful, but he would expect her to have pain due 

 

pain that Claimant was allegedly experiencing, Dr. Fras did explicitly testify that imaging findings 

were degenerative in nature, and unrelated to Claimant’s work injury. See R.R. at 109a.

4 This Court’s unreported memorandum opinions may be cited “for [their] persuasive value, 

but not as a binding precedent.” Section 414(a) of the Commonwealth Court’s Internal Operating 

Procedures, 210 Pa. Code § 69.414(a). Given the factual similarities to the instant matter, we find 

Pella persuasive.
7

to an earlier injury. The employer’s physician explained that the claimant’s ongoing 

pain complaints resulted from degenerative conditions, and that the claimant’s 

surgery was to address conditions that existed prior to the work injury and was thus, 

unrelated thereto. 

The WCJ accepted the claimant’s testimony as credible. The WCJ also 

credited the claimant’s physician’s testimony that the claimant’s injury was workrelated, but discredited his testimony that the claimant had not recovered because the 

physician had testified that the surgery he performed was successful. Finally, the 

WCJ accepted the employer’s expert’s testimony to the extent it concurred with the 

claimant’s physician’s testimony. Based thereon, the WCJ granted the termination 

petition. The claimant appealed to the Board.

On review, the Board reversed, concluding there was no substantial 

record evidence supporting the finding that the claimant was fully recovered. The 

Board noted that the WCJ accepted the employer’s expert’s testimony only to the 

extent it was consistent with the claimant’s physician’s testimony and that the two 

physicians disagreed with respect to her recovery status. The Board further based its 

decision to reverse on the fact that the WCJ had accepted the claimant’s testimony 

that she continued to experience pain. The employer then petitioned this Court for 

review. 

This Court reversed the Board, concluding that substantial evidence 

supported the WCJ’s decision granting the termination petition. The Court addressed 

the fact that the WCJ found the claimant credible, stating:

That the WCJ credited [the c]laimant’s testimony as to 

ongoing pain in her back does not alter this conclusion. It is 

evident from the WCJ’s determination that, based on the 

credited testimony of [the claimant’s physician] and [the 

employer’s expert], she found [the c]laimant's ongoing 

complaints of back pain to be attributable to her preexisting 

degenerative conditions. As factfinder, the WCJ had the 
8

sole authority to weigh the conflicting evidence, and this 

Court may not reassess that determination on appeal. See 

Empire Steel, 749 A.2d at 1024 (‘[I]t is solely for the WCJ, 

as the factfinder, to determine what weight to give to any 

evidence.’).

Pella, slip op. at 11 n.8.

Similarly, in the instant matter, although Claimant credibly testified that 

he continued to experience pain resulting from the work-related injury, the WCJ also 

found Dr. Fras’ testimony credible that Claimant had fully recovered from the workrelated injury. Dr. Fras’ testimony evidenced that Claimant’s physical examination

was objectively normal, and any pain Claimant was experiencing resulted from

degenerative changes unrelated to the work injury. The WCJ, as factfinder, had the 

sole authority to weigh the evidence and reach this conclusion. See Empire Steel. 

Because Employer met its burden under Udvari, the Board properly affirmed the 

WCJ’s granting of Employer’s Termination Petition.

For all of the above reasons, the Board’s order is affirmed.

__________________________

ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Carmelo Olivares Hernandez, :

Petitioner :

:

v. :

:

Workers’ Compensation Appeal :

Board (F&P Holding Co.), : No. 1820 C.D. 2017

Respondent :

O R D E R

AND NOW, this 19th day of July, 2018, the Workers’ Compensation 

Appeal Board’s November 28, 2017 order is affirmed.

__________________________

ANNE E. COVEY, Judge