IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Monifa Holmes, :

:

Petitioner :

:

 v. : No. 119 C.D. 2022

: Submitted: August 19, 2022

Bayada Home Health Care, Inc. :

(Workers’ Compensation Appeal :

Board), :

:

Respondent :

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: June 29, 2023

Monifa Holmes (Claimant) petitions for review of the order of the 

Workers’ Compensation Appeal Board (Board) affirming the decision of a workers’ 

compensation judge (WCJ) that granted the Petition to Terminate Benefits 

(Termination Petition) filed by Bayada Home Health Care, Inc. (Employer) pursuant 

to the Workers’ Compensation Act (Act).1 We affirm.

On April 22, 2015, Claimant injured her left shoulder while in the 

course and scope of her employment as a nurse for Employer. Employer issued a 

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

Temporary Notice of Compensation Payable (TNCP) accepting Claimant’s injury in 

the nature of a left bicep strain. Claimant’s injury was redefined in the WCJ’s May 

22, 2017 decision as a status post debridement of a superior labrum from anterior to 

posterior (SLAP) lesion and biceps tendonesis. See Reproduced Record (RR) at 

329a-30a. On March 28, 2020, Employer filed its Termination Petition alleging, 

inter alia, that Claimant had fully recovered from all work-related injuries as of 

March 5, 2020.

At the hearings before the WCJ, Claimant testified in opposition to 

Employer’s Termination Petition in a June 4, 2020 deposition and at a remote 

hearing on October 19, 2020. In relevant part, Claimant stated that she works as a 

charge nurse at a rehabilitation facility 4 days per week for a total of 32 hours. She 

is transcribing and administering medications, and doing treatments and labs. She 

also works for US Medical Staffing per diem, every other weekend. Claimant lives 

with her parents and takes care of them. She drives her father to his appointments 

at the Veteran’s Administration, and does the shopping, cooking, cleaning, and the 

laundry.

Claimant stated that she did not see Anne Colton, M.D., for treatment 

for her shoulder between 2018 and mid-2020. She had a flare up after starting a job 

that was more physically demanding and saw Dr. Colton for an injection on June 17, 

2020. Her pain ranges from a low of two to a high of eight, depending on her 

activities. Pushing, pulling, and lifting are the activities that cause the most pain. 

Her pain is located in her left shoulder at the front and the top, and into the back. 

She manages her pain by icing her shoulder, taking Motrin, and doing home 

exercises. She tries not to lift more than 20 pounds.
3

Claimant testified that she could return to her pre-injury job if she had 

assistance with lifting, or if she had a client who required no lifting. However, she 

stated that she does not believe that she has made a full recovery because she still 

has pain in her left shoulder especially when she is lifting.

Claimant presented the July 12, 20182 and October 8, 2020 deposition 

testimony of Dr. Colton in opposition to Employer’s Termination Petition. In her 

2 As the WCJ explained:

Claimant submitted Dr. Colton’s deposition from 2018, which this 

[WCJ] has reviewed for historical perspective. However, since 

Employer has alleged that Claimant was fully recovered effective 

March 5, 2020, Dr. Colton’s deposition from 2018 is not relevant to 

the issue in the instant case and this [WCJ] will not make findings 

of fact based on the old deposition.

RR at 13a.

Likewise, in reviewing the claims raised in the instant appeal, reference to the July 12, 

2018 deposition is again useful to gain perspective. Specifically, in that deposition, Claimant 

introduced Exhibit C-3, which was a July 13, 2016 Functional Capacity Evaluation (FCE) that was 

completed by a physical therapist at Dr. Colton’s recommendation, and that was admitted into the 

record without objection. See RR at 68a. Throughout her July 12, 2018 deposition testimony, Dr. 

Colton repeatedly relied upon the FCE in formulating her expert opinion with respect to Claimant’s 

residual disability and lack of full recovery, and as the basis upon which work restrictions should 

be imposed. See, e.g., id. at 72a-73a, 74a, 82a, 87a-88a.

Similarly, in the October 8, 2020 deposition, Dr. Colton again relied upon the July 13, 2016 

FCE stating, in relevant part:

Q. Do you think she ever made a full recovery from her work 

injuries?

A. No.

Q. And can you explain to the [WCJ] why you believe that?

A. So after the surgery, I’ve done the surgery hundreds of times, 

I would say most of my patients get back a hundred percent strength 

and they never come back and see me. I never see them after the 

(Footnote continued on next page...)
4

four-month period. And [Claimant] has never gotten all the way 

back there, to the point where we got a[n FCE]. She couldn’t go 

back to her regular job. Every time she would go back to her regular 

job where she had to lift overhead or lift heavy things, it would 

aggravate her underlying symptoms. So prior to the surgery, prior 

to the injury, she was able to do all those things and after the injury 

she wasn’t. So in that respect I don’t think that she has ever fully 

recovered.

* * * *

Q. Do you agree with Dr. Mandel[] that [Claimant], your

patient, has made a full recovery from her work injury?

A. No.

Q. And why not?

A. You know, in an effort not to be repetitive, again the patient 

was asymptomatic, was able to lift as much as she needed to do for 

her job prior to the work injury. And after the work injury she was 

not. And we had that [FCE] that showed that. And with, you know, 

frequent and infrequent visits to my office, she never was pain free 

or able to do heavy lifting type of activity. And any time that she 

tried to do those things, it aggravated her pain.

* * * *

Q. You discussed a[n FCE] on direct examination. When was 

that performed?

A. I think it was 2017. Let me see if I can find it because we 

switched over our [electronic health record system (EHR)], I have 

two different EHRs pulled up on my computer. Maybe somebody 

else has a copy of it.

Q. That’s okay. If it was approximately 2017, has there been 

a[n FCE] performed since that you’re aware of?

A. Not that I’m aware of, no.

* * * *

Q. Now, regarding your May and June of this year examination, 

you never imposed any work restrictions on [C]laimant, correct?

(Footnote continued on next page...)
5

October 8, 2020 deposition testimony, Dr. Colton noted that she did not treat 

Claimant between May 2018 and May 2020, and only treated Claimant twice in 

2020. On May 19, 2020, she stated that Claimant complained of left shoulder pain 

with decreased mobility and tenderness with fluctuating pain severity. She observed 

that upon physical examination, Claimant had tenderness along the 

acromioclavicular (AC) joint and along the musculature of the posterior shoulder

and admitted that these were subjective complaints of pain. Claimant had full range 

of motion and full strength in her rotator cuff. She diagnosed Claimant with mild 

synovitis of the AC joint, pain in the shoulder, and trapezius muscle spasm; however, 

she could not say with certainty that the diagnoses were related to the April 22, 2015 

work injury. Dr. Colton opined that Claimant is not fully recovered from her work 

injuries based on the July 13, 2016 FCE and due to Claimant’s continued aggravation 

of her underlying symptoms. See RR at 255a-56a, 258a-59a.

Employer presented the July 1, 2020 deposition testimony and report 

of Richard Mandel, M.D., in support of its Termination Petition. Dr. Mandel 

testified that he performed a March 5, 2020 independent medical examination (IME) 

of Claimant in which she admitted that she only had pain occasionally and 

intermittently. Claimant stated that she experienced pain in the superior aspect of 

the shoulder, and the upper part of the left back, but she had not experienced pain in 

the biceps in a long time. She noted that she was symptom-free if she was careful 

A. Correct. I thought we already had those discussions before.

Q. And you never imposed any restrictions on her in May of 

2018, correct?

A. I think I just felt that once we had done that, they were 

permanent restrictions as per the FCE.

RR at 255a-56a, 258a-59a, 266a, 267a.
6

with her activities, and she had no difficulty in driving. Claimant explained that she 

was not treating with any doctors at the time of the IME, and she had only treated 

with her surgeon one year prior to the IME for a check-up.

Upon physical examination, Dr. Mandel observed no swelling or 

tenderness of Claimant’s left shoulder or over the biceps and she had a normal biceps 

contour. He stated that there was some subjective tenderness over the left trapezius; 

but he found no muscle tightness or spasms and noted the significance of this finding 

in that if a patient has significant muscle pain, she will have muscle tightness or 

spasm. His examination of Claimant, including the cervical and both upper 

extremities, was otherwise normal.

Dr. Mandel opined that Claimant had sustained a left biceps strain and 

SLAP lesion of the left shoulder as a result of her work injury, consistent with the 

WCJ’s May 22, 2017 decision. He found that she was fully recovered from her 

work-related injury at the time of the IME as she was almost completely 

asymptomatic. See RR at 383a-85a. He stated that she does not require any further 

medical treatment and could return to work in her pre-injury position with no 

restrictions. See id. at 385a-86a.3

3 Correspondingly, Dr. Mandel’s March 5, 2020 IME report states, in relevant part:

My impression is that [Claimant] sustained a left biceps strain and 

SLAP lesion of the left shoulder as a result of the work incident of 

04/22/15. Her treatment, including arthroscopic labral debridement 

and open biceps tenodesis, was reasonable, medically necessary and 

occurred secondary to the injury sustained on 04/22/15. Unrelated 

to the work incident, she developed cervical radiculopathic 

symptoms quite some time after the work incident. The first 

mention of any possible cervical related symptoms was in Dr. 

Colton’s note of 09/13/16, almost a year and a half after the incident. 

[Claimant] attributed the new symptoms to grip testing using a 

(Footnote continued on next page...)
7

On April 9, 2021, the WCJ issued a decision disposing of Employer’s 

Termination Petition in which she found Claimant’s “testimony as to ongoing 

disability neither credible nor persuasive.” RR at 14a. With respect to the medical 

experts, the WCJ found “that Dr. Mandel is more credible and persuasive than Dr. 

Colton.” Id. Specifically, the WCJ explained the bases for her credibility 

determinations, in relevant part, as follows:

11. This [WCJ] has carefully compared the testimony 

of Dr. Colton and Dr. Mandel. This [WCJ] finds that Dr. 

Mandel is more credible and persuasive than Dr. Colton. 

Dr. Colton did not treat Claimant for two years between 

May of 2018 and May of 2020 and has only treated 

dynamometer during an IME. Such grip testing would not have 

caused any injury to the neck, and, in fact, an MRI of the cervical 

spine revealed significant degenerative findings that were not 

caused or aggravated by the incident in question. 

On today’s evaluation and according to her history, she no longer 

experiences pain in the anterior aspect of the left upper extremity, 

i.e., there is no biceps muscle or biceps tendon pain. There is also 

no biceps deformity. In my opinion, she has recovered completely 

from the biceps tenodesis with an excellent result. There was also 

no evidence on today’s examination of any ongoing symptoms 

related to the labral tear, which was appropriately addressed 

surgically. In my opinion, she has recovered from the labral tear.

Her present symptoms are nonspecific and were not confirmed by 

any objective findings on exam today. Her complaints may 

represent simply intermittent muscle soreness in the upper trapezius. 

Alternatively; the symptoms might be referred from the cervical 

spine. In any event, in my opinion she has fully recovered from all 

of the accepted injuries. In this regard, she requires no additional 

treatment and can return to full, unrestricted duty.

These opinions are provided to within a reasonable degree of 

medical certainty

RR at 428a.
8

Claimant twice in the year 2020, following the filing of 

[Employer’s Termination Petition]. Dr. Colton 

inaccurately relied on an [electromyography (EMG)] to 

form the basis as to whether Claimant was fully recovered; 

Dr. Colton admitted the EMG was from 2016 and 

performed by a physical therapist. She further admitted 

there was no updated EMG performed since 2016.[4] Dr. 

Colton admitted during both her 2018 and 2020 

depositions that Claimant’s only positive findings on 

examination were subjective. Otherwise, Claimant’s 

examinations were normal from an objective standpoint. 

Dr. Colton diagnosed Claimant with mild synovitis of the 

AC joint, pain in the shoulder and trapezius muscle spasm, 

and impingement syndrome despite this [WCJ] 

specifically finding Claimant did not sustain a rotator cuff 

tendonitis, impingement syndrome, and cervical spine

injury as a result of the work injury. Dr. Colton testified 

in 2018 that she imposed an overhead lifting restriction 

and a 10-pound lifting restriction. She noted the 

restrictions continued through 2020; however, Claimant 

was working outside of her alleged continuing restrictions,

as she admitted she was lifting up to 20-25 pounds, and 

helping patients with their activities, including helping the 

patients shower. Dr. Mandel specifically addressed 

Claimant’s lack of treatment and symptoms leading up to 

the IME for almost two years prior. Additionally, he

specifically addressed Dr. Colton’s diagnoses and 

rendered an opinion disagreeing with the relatedness to the 

injury based both on her diagnoses being completely new 

and based on his and Dr. Colton’s almost entirely normal 

examination, aside from subjective complaints. The

testimony of Dr. Mandel is accepted as fact while the 

testimony of Dr. Colton is rejected.

4 As outlined above, in her July 12, 2018 and October 8, 2020 deposition testimony, Dr. 

Colton extensively relied upon the July 13, 2016 FCE, and not an EMG, in formulating her expert 

opinion with respect to Claimant’s residual disability and lack of full recovery, and as the basis 

upon which she would impose work restrictions. See RR at 72a-73a, 74a, 82a, 87a-88a, 255a-56a, 

258a-59a, 266a, 267a. Specifically, as indicated by the WCJ, Dr. Colton acknowledged that she 

had relied upon the FCE in determining that Claimant was not fully recovered; admitted that the 

FCE was performed by a physical therapist, and not a doctor; and further admitted that another 

FCE had not been performed since the initial FCE was performed on July 13, 2016. See id. at 72a73a, 88a, 255a-56a, 258a-59a, 266a.
9

Id.

Based on the foregoing, the WCJ found as fact: (1) consistent with her 

May 22, 2017 decision, Claimant sustained a work-related injury in the nature of a 

status post debridement of a SLAP lesion, biceps strain, and biceps tenodesis on 

April 22, 2015;5 and (2) Claimant was fully recovered from this work-related injury 

5

In the May 22, 2017 decision, with respect to the deposition testimony of Claimant’s 

medical expert, Gerald Dworkin, D.O., the WCJ found, in pertinent part, that “Dr. Dworkin opined 

that the diagnosis of [Employer’s medical expert, Todd Kelman, D.O.,] that Claimant had 

resolving chronic left shoulder pain status post debridement, labral SLAP lesion and tenotomy 

with bicep tendinosis of the left shoulder was reasonable.” RR at 324a. In that decision, the WCJ 

also found that, following an initial examination on February 2, 2016, and review of Claimant’s 

medical records and testing results, Dr. Kelman “diagnosed Claimant as having a resolving chronic 

left shoulder pain status post debridement of a labral SLAP lesion and tenotomy with biceps 

tenodesis of the left shoulder with some residual left rotator cuff tendonitis” in Dr. Kelman’s June 

3, 2016 deposition. Id. at 325a. The WCJ found that, following a subsequent examination on 

September 8, 2016, and review of Claimant’s medical records and testing results, Dr. Kelman 

“continued to diagnose her as status post debridement of a SLAP lesion and biceps tenodesis”

in his January 3, 2017 deposition. Id. at 326a (emphasis added). See also Dr. Kelman’s September 

8, 2016 IME report, Claimant’s Exhibit S03, RR at 316a (“Chronic left shoulder pain status post 

debridement labral SLAP lesion and tenotomy of biceps tenodesis, left shoulder,” and “[r]esolved 

left rotator cuff tendinitis.”). The WCJ further found “the testimony of Dr. Kelman more credible 

and persuasive than the testimony of Dr. Dworkin,” and that “[t]he testimony of Dr. Kelman is 

accepted as fact while the testimony of Dr. Dworkin is rejected where it is in conflict.” Id. at 329a.

Ultimately, the WCJ made the following relevant findings of fact:

32. This [WCJ] has reviewed the medical evidence specifically 

with regard to Claimant’s claim for additional conditions as being 

related to Claimant’s work injury. This [WCJ] accepts Dr. 

Kelman’s opinions that Claimant’s work injury is status post 

debridement of a labral SLAP lesion and biceps tenodesis of the left 

shoulder as per his examination on September 8, 2016. Dr. 

Dworkin’s opinions as to an expanded work injury with injuries to 

Claimant’s neck and additional injuries to her left arm are not 

accepted as credible or persuasive. . . .

(Footnote continued on next page...)
10

33. This Judge has carefully reviewed Claimant's testimony and 

she is found not credible. . . .

* * * *

35. Claimant’s work injury consists only of a status post 

debridement of a SLAP lesion and biceps tenodesis.

* * * *

38. Claimant has not proven her condition related to her work 

injury has worsened.

* * * *

41. Employer shall continue to be liable for Claimant’s 

reasonable and necessary medical treatment related only to her work 

injury of a status post debridement of a SLAP lesion and biceps 

tenodesis.

RR at 330a-31a.

Based on the foregoing, the WCJ made the following pertinent conclusions of law:

1. Claimant has sustained her burden of proving that her work 

injury consist[s] of a status post debridement of a SLAP lesion and 

biceps tenodesis. Thus, her Petition to Review shall be granted only 

to the extent of enlarging Claimant’s work injury from a left bicep 

strain to a status post debridement of a SLAP lesion and biceps 

tenodesis.

2. Claimant has not sustained her burden of proving any other 

allegations contained in her Petition to Review. Thus, Claimant’s 

Petition for Review is denied and dismissed.

RR at 331a. Accordingly, the WCJ issued an order directing that “Claimant’s Petition for Review 

is granted only to the extent of expanding Claimant’s injury to a status post debridement of a 

SLAP lesion and biceps tenodesis,” and that “Employer shall continue to be liable for Claimant’s 

reasonable and necessary medical treatment related only to her work injury of a status post 

debridement of a SLAP lesion and biceps tenodesis.” Id. at 333a (emphasis added).
11

effective March 5, 2020. RR at 14a-15a. As a result, the WCJ concluded that 

Employer sustained its burden of proving that Claimant was fully recovered from 

her work-related injury effective March 5, 2020, and issued an order granting 

Employer’s Termination Petition effective March 5, 2020. See id. at 15a, 16a. On 

appeal, the Board affirmed the WCJ’s decision, see id. at 24a-31a, and Claimant then 

filed the instant petition for review.

In this appeal,6 Claimant contends that the Board erred in affirming the 

WCJ’s decision because: (1) the WCJ relied on evidence outside of the record 

thereby invalidating all of the credibility determinations made at the heart of her 

decision; and (2) Employer did not meet its burden of proving by competent 

6 This Court’s scope of review is limited to determining whether constitutional rights were 

violated, whether the adjudication is in accordance with the law, or whether necessary findings of 

fact are supported by substantial evidence. Commonwealth of Pennsylvania v. Workers’

Compensation Appeal Board (Piree), 182 A.3d 1082, 1086 n.8 (Pa. Cmwlth. 2018). In addition, 

as we have recently explained:

[I]n a termination petition proceeding, it is the employer’s burden to 

prove that a claimant’s disability has resolved, or that any current 

disability is unrelated to the work injury. Parker v. Workers’ 

Compensation Appeal Board (Dock Terrace Nursing Home), 729 

A.2d 102, 104 (Pa. Cmwlth. 1999). When a claimant complains of 

continued pain, an employer meets its burden by presenting 

unequivocal medical testimony that the claimant is fully recovered, 

can return to work without restrictions, and has no objective medical 

findings that either substantiate the claims of pain or relate them to 

the work injury. Udvari v. Workmen’s Compensation Appeal Board 

(USAir, Inc.), 705 A.2d 1290, 1293 (Pa. 1997); accord Marks v. 

Workers’ Compensation Appeal Board (Dana Corp.), 898 A.2d 689, 

693 (Pa. Cmwlth. 2006). The employer’s burden does not shift to 

the claimant because the claimant’s disability is presumed to 

continue until proven otherwise. Marks, 898 A.2d at 693.

Platko v. Workers’ Compensation Appeal Board (Laser Heating and Cooling) (Pa. Cmwlth., No. 

661 C.D. 2020, filed August 23, 2021), slip op. at 5.
12

evidence that Claimant had fully recovered from all of the accepted work-related 

injuries.

Claimant first asserts that the Board erred in affirming the WCJ’s 

decision because the WCJ relied on evidence outside of the record thereby 

invalidating all of the credibility determinations7 made at the heart of her decision. 

Specifically, Claimant submits that the WCJ’s reference to an EMG from 2016 with 

respect to Dr. Colton’s testimony in her April 9, 2021 decision granting Employer’s 

Termination Petition demonstrates that she relied on evidence outside of the record 

because no EMG was ever admitted into evidence or referenced by any of the expert 

medical witnesses presented at the hearings.

As noted above, in rejecting Dr. Colton’s testimony as not credible, the 

WCJ explained, in Finding No. 11, that “Dr. Colton inaccurately relied on an EMG 

to form the basis as to whether Claimant was fully recovered”; “Dr. Colton admitted 

7 As we have observed:

It is well settled that, in a workers’ compensation proceeding, the 

WCJ is the ultimate finder of fact. Hayden v. Workmen’s 

Compensation Appeal Board (Wheeling Pittsburgh Steel Corp.), 

479 A.2d 631, 635 (Pa. Cmwlth. 1984). As the fact finder, the WCJ 

is entitled to accept or reject the testimony of any witness, including 

a medical witness, in whole or in part. General Electric Company 

v. Workmen’s Compensation Appeal Board (Valsamaki), 593 A.2d 

921, 924 (Pa. Cmwlth. 1991). Questions of credibility and the 

resolution of conflicting testimony are within the exclusive province 

of the fact finder, and not this Court. American Refrigerator 

Equipment Company v. Workmen’s Compensation Appeal Board 

(Jakel), 377 A.2d 1007, 1010 (Pa. Cmwlth. 1977). As such, 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).

Platko, slip op. at 3 n.3.
13

the EMG was from 2016 and performed by a physical therapist”; and “she further 

admitted there was no updated EMG performed since 2016.” RR at 14a. However, 

as extensively outlined above, in her July 12, 2018 and October 8, 2020 deposition 

testimony, Dr. Colton cited the July 13, 2016 FCE, and not an EMG, in formulating 

her expert opinion, and acknowledged that she had relied upon the FCE in 

determining that Claimant was not fully recovered; admitted that the FCE was 

performed by a physical therapist, and not a doctor; and further admitted that another 

FCE had not been performed since the initial FCE was performed. See id. at 72a73a, 88a, 255a-56a, 258a-59a, 266a. Thus, based on our review of the certified 

record in this matter in general, and the WCJ’s April 9, 2021 decision and Dr. 

Colton’s deposition testimony in particular, it is clear that the WCJ’s use of the term 

“EMG” in place of the term “FCE” is merely a typographical error.

In this regard, this Court has previously observed:

An examination of the WCJ’s decision and order as a 

whole, however, reflects that her use of the 1996 date in 

Finding No. 7 is merely a typographical error. Later, in 

the order the WCJ used the correct date of January 6, 1995

to set the effective date for the suspension of [the 

claimant’s] benefits. Because the error was merely 

typographical and the WCJ was aware of the correct date, 

the error was harmless.

Trimmer v. Workers’ Compensation Appeal Board (Monaghan Township), 728 A.2d 

438, 441 (Pa. Cmwlth. 1999). Likewise, in the instant matter, because the WCJ’s 

error in Finding No. 11 was merely typographical, and because she was clearly aware 

of the correct procedure upon which Dr. Colton relied, the WCJ’s error in this regard 

was harmless.

Moreover, as the Board stated in its Opinion affirming the WCJ’s 

decision:
14

Whether Dr. Colton’s October 8, 2020 deposition 

testimony references an EMG does not inform the relevant 

inquiry as to whether the finding of full recovery was 

based on substantial, competent evidence. Furthermore, 

the WCJ cited in detail various other reasons as to why she 

credited the testimony of Dr. Mandel over that of Dr. 

Colton separate from any EMG, which are supported by 

the record. (Finding [No.] 11[, RR at 14a]). Because the 

finding of full recovery is based on substantial, competent 

evidence in the form of Dr. Mandel’s credited testimony, 

we will not disturb the finding of full recovery based on 

this argument.

RR at 29a-30a.

As indicated above, the WCJ also found Dr. Colton’s testimony not 

credible because: (1) “Dr. Colton admitted during both her 2018 and 2020 

depositions that Claimant’s only positive findings on examination were subjective,” 

and “[o]therwise, Claimant’s examinations were normal from an objective 

standpoint”; (2) “Dr. Colton diagnosed Claimant with mild synovitis of the AC joint, 

pain in the shoulder and trapezius muscle spasm, and impingement syndrome despite 

this [WCJ] specifically finding Claimant did not sustain a rotator cuff tendonitis, 

impingement syndrome, and cervical spine injury as a result of the work injury”; and 

(3) “Dr. Colton testified in 2018 that she imposed an overhead lifting restriction and 

a 10-pound lifting restriction,” and “[s]he noted the restrictions continued through 

2020,” but that “Claimant was working outside of her alleged continuing restrictions, 

as she admitted she was lifting up to 20 [to] 25 pounds, and helping patients with 

their activities, including helping the patients shower.” RR at 14a.

Claimant does not contend that any of the foregoing factual 

determinations are not supported by substantial evidence in the certified record of 

this case. As a result, these findings are binding upon this Court on appeal. See 

Moore, 652 A.2d at 805. In short, contrary to Claimant’s assertions, the WCJ’s 
15

harmless reference to an EMG, rather than an FCE, in her decision is not a basis 

upon which all of the WCJ’s credibility determinations with respect to the expert 

medical evidence will be overturned in this appeal.

Finally, Claimant submits that the Board erred in affirming the WCJ’s 

decision because Employer did not meet its burden of proving by competent 

evidence that Claimant had fully recovered from all of the accepted work-related 

injuries. Specifically, Claimant argues that the WCJ accepted Dr. Kelman’s 

testimony as credible in her May 22, 2017 decision, and Dr. Kelman testified in his 

June 3, 2016 deposition that he diagnosed Claimant as suffering from “resolving 

chronic left shoulder pain status post debridement of a labral SLAP lesion and 

tenotomy with biceps tenodesis of the left shoulder with some residual left shoulder 

rotator cuff tendonitis” upon his initial February 2, 2016 examination of Claimant.

See RR at 325a. Claimant contends that Employer did not sustain its burden of 

proving that she had recovered from the residual left rotator cuff tendonitis aspect of 

Dr. Kelman’s diagnosis, and that the WCJ erred in failing to find that Claimant did 

not sustain a left rotator cuff tendonitis injury in the April 9, 2021 decision.

However, as outlined above, in her May 22, 2017 decision, the WCJ 

found that, following a subsequent examination on September 8, 2016, and review 

of Claimant’s medical records and testing results, Dr. Kelman “continued to 

diagnose her as status post debridement of a SLAP lesion and biceps tenodesis” in 

his January 3, 2017 deposition. RR at 326a (emphasis added). See also Dr. 

Kelman’s September 8, 2016 IME report, Claimant’s Exhibit S03, RR at 316a 

(“Chronic left shoulder pain status post debridement labral SLAP lesion and 

tenotomy of biceps tenodesis, left shoulder,” and “[r]esolved left rotator cuff 

tendinitis.”). Thus, the WCJ was free to accept as credible Dr. Kelman’s January 3, 
16

2017 deposition testimony, and September 8, 2016 IME report, that Claimant only 

sustained a work-related injury in the nature of “a status post debridement of a SLAP 

lesion and biceps tenodesis,” and that any resolved left rotator tendinitis was not 

attributable to her work-related injury. See, e.g., General Electric Company, 593 

A.2d at 924 (“In the exercise of broad discretion, the [WCJ] may also accept or reject 

the testimony of any witness, including a medical witness, in whole or in part.”) 

(citation omitted).

In sum, the limited description of Claimant’s work-related injury as 

found in the WCJ’s May 22, 2017 decision and her April 9, 2021 decision, not 

relating any resolved left rotator tendinitis to her work-related injury, is amply 

supported by Dr. Kelman’s January 3, 2017 deposition testimony and his September 

8, 2016 IME report, admitted as Claimant’s Exhibit S03. See RR at 316a, 326a. In 

addition, Dr. Mandel’s opinion that Claimant had sustained a left biceps strain and 

SLAP lesion of the left shoulder as a result of her work injury, consistent with the 

WCJ’s May 22, 2017 decision, and that she has fully recovered from all of these

work-related injuries at the time of the IME, is likewise supported by substantial, 

competent evidence.8 As a result, Claimant’s assertion that Employer did not sustain 

8

In relevant part, Dr. Mandel testified as follows:

Q. [B]ased on the history you received; your review of medical 

records, and the results of your physical examination, what is the 

diagnosis you attribute to the work injury of April 22nd, 2015?

A. My opinion is that [Claimant] sustained a left biceps strain 

and SLAP lesion of the left shoulder as a result of the work incident 

from April 2015.

Q. And what is your opinion as to whether she was fully 

recovered as of your March 5th, 2020 IME?

(Footnote continued on next page...)
17

A. It was my opinion that she was fully recovered from all of 

those injuries.

Q. And can you explain to the [WCJ] why that -- you rendered 

that opinion?

A. Yes. Well, there was absolutely -- well, first of all, she was 

almost asymptomatic. She was really completely asymptomatic 

with regard to any symptoms that could be arising from any residual 

SLAP lesion, labral tear, or pathology involving the long head of the 

biceps. Those parts of the examination were a hundred percent 

normal.

The only areas of discomfort or pain that she was 

experiencing, this was just intermittently, but the pain that she 

experienced intermittently was in the area of the superior aspect of 

the shoulder, meaning the trapezius area, and she said also around 

the left shoulder blade.

These areas are remote from the long head of the biceps and 

from the labrum. And pain in those areas is --- is not consistent with 

any ongoing injury to the biceps or to the glenoid labrum.

So I would say the -- the location of her symptoms and the 

physical exam findings revealing no ongoing problems whatsoever 

related to the injured areas led me to my opinion, my conclusion 

with confidence.

Q. And what is your opinion as to whether [C]laimant required 

any further medical treatment related to the April 22nd, 2015 work 

injury?

A. It was my opinion that she required no further treatment 

related to the 2015 work injury.

Q. And what is your opinion as to whether she can return to her 

preinjury position in terms of the April 22nd, 2015 injury?

A. It was my opinion that she could return to her preinjury 

position without any sort of restriction or limitation.

* * * *

Q. Okay. Now, Dr. Mandel, have all of your opinions been 

rendered within a reasonable degree of medical certainty?

A. Yes.

RR at 383a-85a, 391a; see also Dr. Mandel’s March 5, 2020 IME report, RR at 428a, supra.
18

its burden of proving that Claimant had recovered from all of her work-related 

injuries is patently without merit.

Accordingly, the Board’s order is affirmed.

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

Monifa Holmes, :

:

Petitioner :

:

 v. : No. 119 C.D. 2022

: 

Bayada Home Health Care, Inc. :

(Workers’ Compensation Appeal :

Board), :

:

Respondent :

O R D E R

AND NOW, this 29th day of June, 2023, the order of the Workers’ 

Compensation Appeal Board dated January 12, 2022, is AFFIRMED.

__________________________________

MICHAEL H. WOJCIK, Judge