IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Carmelo Olivares Hernandez, :

: No. 2305 C.D. 2014

Petitioner : Submitted: May 15, 2015

:

v. :

:

Workers’ Compensation Appeal :

Board (Giorgio Foods, Inc.), :

:

Respondent :

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE MARY HANNAH LEAVITT, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY SENIOR JUDGE FRIEDMAN FILED: August 25, 2015

Carmelo Olivares Hernandez (Claimant) petitions for review of the 

December 10, 2014, order of the Workers’ Compensation Appeal Board (WCAB) 

affirming the decision of a workers’ compensation judge (WCJ) to grant the 

termination petition filed by Giorgio Foods, Inc. (Employer) and dismiss Employer’s 

petition for review of a utilization review (UR) determination as moot. We affirm.

On March 14, 2006, Claimant was injured while working as a mushroom 

farm casing crew member for Employer. (WCJ’s Findings of Fact, 3/19/10, No. 2.) 

The parties recognized the injury as a low-back strain in a January 27, 2007, 

agreement for compensation. (WCJ’s Findings of Fact, 5/29/13, No. 1.) 
2

On August 11, 2009, Employer filed a suspension petition, which the 

WCJ denied on March 19, 2010. In his written decision, the WCJ amended the 

description of Claimant’s work-related injury to include a herniated disc at L4-5

pursuant to the parties’ stipulation. (WCJ’s Findings of Fact, 3/19/10, No. 22.)1

On July 24, 2012, Employer filed a termination petition, alleging that 

Claimant had fully recovered from his work injury as of June 20, 2012. Employer 

also requested a UR of the treatment rendered to Claimant by Steven B. Schwartz, 

M.D., from June 27, 2012, onward. The reviewer, Vincent L. Ferrara, M.D., 

determined that Dr. Schwartz’s treatment, including surgery, was both reasonable and 

necessary. On September 25, 2012, Employer filed a UR petition. Claimant returned 

to work with restrictions on October 22, 2012, pursuant to Employer’s notice of 

suspension of benefits.

The WCJ held a hearing on Employer’s petitions on December 11, 2012. 

Employer presented the deposition testimony of independent medical examiner 

Christian I. Fras, M.D., a board-certified orthopedic surgeon, who examined Claimant 

on June 20, 2012. (WCJ’s Findings of Fact, 5/29/13, No. 4a.) Dr. Fras observed that 

Claimant exhibited a normal gait and stance uncharacteristic of a person with nerve 

damage. (Id., No. 4b.) Based on Claimant’s negative straight-leg-raising test and 

negative femoral-stretch test, Dr. Fras found no disc herniation at that time. (Id.) Dr. 

Fras also noted that Claimant had painless range of motion in both hips with no 

tenderness over the sacroiliac joints. (Id.) Dr. Fras’ review of a June 8, 2012, 

 

1 WCJ Terry W. Knox issued the March 19, 2010, decision on Employer’s suspension 

petition. WCJ Brian J. Puhala issued the May 29, 2013, decision on Employer’s termination and 

UR petitions.
3

magnetic resonance imaging (MRI) report revealed degenerative changes in 

Claimant’s low back, including a potential annular tear and mild lumbar stenosis at 

L4-5, but no disc herniation. (Id., No. 4d.) Dr. Fras opined that, as of the date of his 

evaluation, Claimant had no ongoing low-back pathology and Claimant’s workrelated injury had fully resolved. (Id., Nos. 4c, 4e.)

At the time of his examination, Dr. Fras believed that Claimant’s only 

accepted work injury was a low-back strain. (Fras Report, 6/20/12, at 5.) In his 

written report, however, Dr. Fras noted that Claimant’s medical records indicated the 

presence of a herniated disc at an earlier time. (Id.) During his subsequent 

deposition, Dr. Fras opined that “by the time of my evaluation of June 20, 2012, 

[Claimant] ha[d] recovered from his work injuries of lumbar sprain and strain and 

lumbar disc herniation.” (Fras Dep., 11/15/12, at 28.)

Claimant presented the deposition testimony of Dr. Schwartz, a boardcertified neurological surgeon. (WCJ’s Findings of Fact, 5/29/13, No. 5a.) Dr. 

Schwartz first examined Claimant in October 2011, five years after his work injury. 

(Id., No. 5b.) Dr. Schwartz reviewed diagnostic studies, proceeded with conservative 

treatment, and released Claimant to light-duty work. (Id., No. 5c.) Dr. Schwartz 

admitted that he did not review medical records from Claimant’s prior doctors and 

that he was unaware of records stating that Claimant had reported no more leg pain. 

(Id., No. 5g.) In January 2012, Dr. Schwartz gave Claimant injection therapy, which 

provided him excellent relief. However, Claimant’s symptoms had returned as of

March 13, 2012. (Id., No. 5d.) Dr. Schwartz opined that Claimant’s ongoing 

symptoms, including the herniated disc, were related to his March 2006 work injury. 

(Id., No. 5e.) On July 25, 2012, Dr. Schwartz performed a surgical fusion and lumbar 
4

discectomy on Claimant’s back at L4-5. (Id., No. 5f; see Schwartz Dep., 11/13/12, at 

14-16.)

 The WCJ credited Dr. Fras’ testimony and discredited the testimony of 

Dr. Schwartz, Claimant, and Donna M. Kulp, D.C., Claimant’s chiropractor.

2

 (WCJ’s 

Findings of Fact, 5/29/13, Nos. 7-8.) The WCJ found that Dr. Fras offered clear 

explanations as to why Claimant’s ongoing symptoms are unrelated to his work 

injury. (Id., No. 8a.) Moreover, Dr. Fras’ diagnostic evaluations support the 

conclusion that Claimant had fully recovered from the lumbar sprain and strain and 

the herniated disc as of the date of his examination. (Id.) The WCJ further found that 

Dr. Schwartz did not examine Claimant until five years after his injury and did not 

review medical records from Claimant’s prior doctors. (Id., No. 8b.) Finally, the 

WCJ found that both Dr. Schwartz and Dr. Kulp based their opinions on information 

they received from Claimant, whom the WCJ specifically discredited. (Id., Nos. 7, 

8b, 8c.) 

The WCJ concluded that Claimant had fully recovered from his work 

injury as of June 20, 2012, the date of Dr. Fras’ examination. (WCJ’s Conclusions of 

Law, 5/29/13, No. 4.) Therefore, the WCJ granted Employer’s termination petition 

and dismissed Employer’s UR petition as moot because the UR petition concerned 

treatment rendered after Claimant’s date of recovery. (Id., No. 5.)

Claimant appealed to the WCAB, which affirmed. The WCAB 

concluded that the WCJ issued a reasoned decision and that the WCJ’s grant of

 

2

The WCJ did not summarize either Claimant’s or Dr. Kulp’s testimony because he did not 

find their testimony credible. (WCJ’s Findings of Fact, 5/29/13, Nos. 6-7.)
5

Employer’s termination petition was supported by substantial, competent evidence. 

Claimant now petitions this court for review.3

Claimant first asserts that the WCAB’s conclusion that Claimant fully 

recovered from his work injury as of June 20, 2012, is unsupported by substantial, 

competent evidence. We disagree.

An employer seeking to terminate “benefits bears the burden of proving 

either that the claimant’s disability has ceased or that any current disability arises 

from a cause unrelated to the claimant’s work injury.” Miller v. Workers’ 

Compensation Appeal Board (Peoplease Corporation), 29 A.3d 869, 871 n.6 (Pa. 

Cmwlth. 2011). “An employer meets this burden when its 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 [that] either substantiate the claims of 

pain or connect them to the work injury.’” Id. (citation omitted). The burden of 

proof in a termination proceeding “never shifts to the claimant, whose disability is 

presumed to continue until proven otherwise.” Id. In order to terminate benefits, the 

employer must prove that the claimant has recovered from all work-related injuries. 

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

368, 370 (Pa. Cmwlth. 1998).

 

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

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

supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
6

Claimant argues that Dr. Fras’ testimony was insufficient to support a 

termination of benefits because he did not recognize Claimant’s accepted herniated 

disc injury in rendering his medical opinion. Specifically, Claimant points out that: 

(1) Dr. Fras testified that Claimant’s herniated disc had resolved between 2007 and 

2008, even though it was not judicially recognized as a work injury until 2010; and 

(2) Claimant underwent a surgical fusion and discectomy at L4-5 one month after Dr. 

Fras’ examination.

It is true that “a medical opinion that does not recognize the workrelatedness of an injury previously determined to be work-related is insufficient to 

support a termination of benefits.” O’Neill v. Workers’ Compensation Appeal Board 

(News Corporation), 29 A.3d 50, 55 (Pa. Cmwlth. 2011). However, even if a 

medical expert disagrees with an accepted work injury, his or her “opinion is 

competent if he [or she] assumes the presence of an injury and finds it to be resolved 

by the time of the [independent medical examination].” Hall v. Workers’ 

Compensation Appeal Board (America Service Group), 3 A.3d 734, 741 (Pa. 

Cmwlth. 2010). 

A review of Dr. Fras’ testimony as a whole reveals that he did, in fact, 

accept Claimant’s herniated disc as a work injury but believed, based on his physical 

examination and the diagnostic studies, that Claimant’s herniated disc had resolved. 

Dr. Fras opined, within a reasonable degree of medical certainty, that “by the time of 

my evaluation of June 20, 2012, [Claimant] ha[d] recovered from his work injuries of 
7

lumbar sprain and strain and lumbar disc herniation.” (Fras Dep., 11/15/12, at 28.)4 

Dr. Fras’ testimony, which the WCJ credited, was sufficient to support the WCJ’s 

conclusion that Claimant had fully recovered from his work injury as of June 20, 

2012. See O’Neill, 29 A.3d at 55-56 (concluding that the medical expert’s testimony 

was sufficient to support a termination of benefits where the expert recognized the 

claimant’s diagnoses, notwithstanding his skepticism, and testified within a 

reasonable degree of medical certainty that the claimant fully recovered from her

work injuries); To v. Workers’ Compensation Appeal Board (Insaco, Inc.), 819 A.2d 

1222, 1225 (Pa. Cmwlth. 2003) (affirming the termination of benefits where the 

medical expert did not deny the existence of the work injury but believed that the 

claimant’s subjective complaints did not stem from the work injury and opined that 

the claimant fully recovered from any work injury sustained).

Next, Claimant asserts that the WCJ failed to issue a reasoned decision 

under section 422(a) of the Workers’ Compensation Act (Act), Act of June 2, 1915, 

P.L. 736, as amended, 77 P.S. §834,

5

because he failed to offer adequate, objective 

reasons for his credibility determinations. We disagree.

 

4

In his earlier written report, Dr. Fras stated, “Regardless of the etiology [of] the L4-5 disc 

herniation or its causal nexus to the March 14, 2006, work injury, by the time of my evaluation, 

[Claimant] has recovered from this disc herniation.” (Fras Report, 6/20/12, at 6.)

5

Section 422(a) of the Act provides in relevant part:

All parties to an adjudicatory proceeding are entitled to a reasoned decision 

containing findings of fact and conclusions of law based upon the evidence as a 

whole which clearly and concisely states and explains the rationale for the decision[]

so that all can determine why and how a particular result was reached. The [WCJ]

shall specify the evidence upon which the [WCJ] relies and state the reasons for 

accepting it in conformity with this section. When faced with conflicting evidence, 

(Footnote continued on next page...)
8

The WCJ explained that he disbelieved Claimant’s testimony “based on 

[his] personal observation of Claimant” at the hearing. (WCJ’s Findings of Fact, 

5/29/13, No. 7.) It is well settled that the WCJ may base a credibility determination

solely on a witness’s demeanor when the witness testifies live before the WCJ, as in 

this case. See Daniels v. Workers’ Compensation Appeal Board (Tristate Transport), 

828 A.2d 1043, 1052-53 (Pa. 2003); U.S. Steel Mining Company v. Workers’

Compensation Appeal Board (Goretsky), 874 A.2d 711, 715 n.7 (Pa. Cmwlth. 2005). 

Therefore, the WCJ’s stated reason for discrediting Claimant’s testimony was 

sufficient to satisfy the reasoned decision requirement. 

With regard to deposition testimony, however, the WCJ must articulate 

an objective basis for crediting one witness’s testimony over another’s. See Daniels, 

828 A.2d at 1053. Here, the WCJ stated that he found Dr. Fras’ testimony more 

credible than Dr. Schwartz’s because Dr. Fras clearly explained why Claimant’s 

ongoing symptoms are unrelated to his March 2006 work injury. (WCJ’s Findings of 

Fact, 5/29/13, No. 8a.) Moreover, the WCJ found that Dr. Fras’ diagnostic 

evaluations supported the conclusion that Claimant had fully recovered from both the 

low-back strain and the herniated disc as of the date of his examination. (Id.) In 

contrast, the WCJ found that Dr. Schwartz did not examine Claimant until five years 

after his work injury, did not review Claimant’s prior medical records, and was 

unaware of records stating that Claimant had reported no more leg pain. (Id., Nos. 

 

(continued...)

the [WCJ] must adequately explain the reasons for rejecting or discrediting 

competent evidence.

77 P.S. §834.
9

5g, 8b.) Finally, the WCJ noted that both Dr. Schwartz and Dr. Kulp based their 

medical opinions on information they received from Claimant, whom the WCJ 

specifically discredited. (Id., Nos. 7, 8b, 8c.) Because the WCJ articulated objective 

bases for his credibility determinations, his decision was reasoned under the Act.

Finally, Claimant asserts that the WCJ erred in dismissing Employer’s 

UR petition as moot. By granting the termination petition, the WCJ correctly found 

that any treatment rendered after June 20, 2012, including Dr. Schwartz’s July 2012 

surgery, was unrelated to Claimant’s March 2006 work injury. Therefore, the WCJ 

properly dismissed the UR petition. 

Accordingly, we affirm.

___________________________________

ROCHELLE S. FRIEDMAN, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Carmelo Olivares Hernandez, :

: No. 2305 C.D. 2014

Petitioner : 

:

v. :

:

Workers’ Compensation Appeal :

Board (Giorgio Foods, Inc.), :

:

Respondent :

O R D E R

AND NOW, this 25th day of August, 2015, we hereby affirm the 

December 10, 2014, order of the Workers’ Compensation Appeal Board.

___________________________________

ROCHELLE S. FRIEDMAN, Senior Judge