IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Johnny L. Pierson, :

Petitioner :

:

 v. : No. 396 C.D. 2023 

:

Consol Pennsylvania Coal : Submitted: March 8, 2024 

Company, LLC (Workers’ :

Compensation Appeal Board), :

Respondent :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE LORI A. DUMAS, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE McCULLOUGH FILED: March 28, 2024

Johnny L. Pierson (Claimant) petitions for review of the Workers’ 

Compensation (WC) Appeal Board’s (Board) March 30, 2023 order affirming the 

Workers’ Compensation Judge’s (WCJ) September 19, 2022 decision granting Consol 

Pennsylvania Coal Company, LLC’s (Employer) Petition to Terminate Claimant’s WC 

benefits (2021 Termination Petition). On appeal, Claimant contends that the evidence 

failed to demonstrate that he had fully recovered from his 2014 work injury since a

prior adjudication. After review, we affirm.

I. Background

On August 13, 2014, Claimant sustained an injury to his shoulder when 

he tripped and fell while unloading a large piece of pipe from a mine car during the 

course and scope of his employment as a hoist man and operator at the Harvey Mine. 
2

Employer accepted the injury by a Notice of Compensation Payable which described 

Claimant’s injury as a labral tear of his right shoulder. On April 17, 2017, Employer 

filed a petition to terminate Claimant’s WC benefits, maintaining that Claimant had 

fully recovered from his injury as of March 30, 2017 (2017 Termination Petition). 

Claimant filed a review petition seeking to expand the description of his injury to 

include “lateral epicondylitis with tear of the ECRB [(extensor carpi radialis brevis)]

tendon of the right elbow, right shoulder recurrent subacromial impingement along 

with biceps rotator cuff interval capsular tears, glenohumeral arthritis, partial labial 

tears, or symptomatic acromioclavicular arthritis.” (Reproduced Record (R.R.) at 20a.)

Hearings were held before WCJ Charles Lawton (WCJ Lawton), at which 

Employer offered the September 6, 2017 deposition of orthopedic surgeon D. Kelly 

Agnew, M.D. (Dr. Agnew), who conducted an independent medical examination 

(IME) of Claimant on March 29, 2017. Claimant testified and offered the depositions

of orthopedic surgeon Michael J. Rytel, M.D. and Mark W. Rodosky, M.D. (Dr. 

Rodosky), who specializes in the treatment of shoulder problems. By October 19, 2018

decision, WCJ Lawton denied the 2017 Termination Petition based on his 

determination that Employer failed to demonstrate Claimant had fully recovered from 

his work injury as of the March 2017 IME. (R.R. at 20a.) WCJ Lawton also denied 

Claimant’s review petition, finding that Claimant failed to establish that the description 

of his work injury should be amended to include additional diagnoses. 

Approximately four years after the first IME, Claimant underwent another 

IME performed by Dr. Agnew on April 22, 2021, following which Dr. Agnew opined 

that Claimant had fully recovered from his 2014 work accident and could return to

work without restrictions. (R.R. at 22a.) Employer filed the 2021 Termination Petition 

on May 5, 2021, based upon Dr. Agnew’s conclusion. Claimant filed a review petition 
3

on November 1, 2021, requesting that his injury be expanded to include a “right 

shoulder SLAP [(superior labrum anterior and posterior]) lesion and preglenoid cyst 

and recurring labral tears of the right shoulder, right shoulder subacromial 

decompression including acromioplasty, subscapular nerve palsy, [and] subscapular 

adhesions, with frozen shoulder, resulting in surgeries.” (R.R. at 91a.) 

WCJ Lawton conducted hearings at which Employer presented Dr. 

Agnew’s November 3, 2021 deposition wherein he testified that, as part of his

examination of Claimant, he secured a history, reviewed medical records including Xrays and magnetic resonance imaging (MRI) history and read documentation prepared 

by Claimant’s treating physicians. Dr. Agnew opined that Claimant’s 2014 work injury 

was limited to an isolated labral tear that was successfully treated and had resolved. 

(R.R. at 121a-23a, 140a.) Dr. Agnew explained that this injury did not occur “in the 

setting of a normal shoulder” because Claimant had underlying degeneration in that 

area secondary to glenohumeral arthritis, which had produced additional labral fraying 

or tearing. (R.R. at 121a.) 

Dr. Agnew noted the absence of disuse atrophy in Claimant’s right 

shoulder, and that Claimant’s right arm circumference was larger than that of his left 

arm. In fact, the size of Claimant’s right arm had increased since his first IME, 

indicating his substantial use of that arm and improvement in his evaluation from the 

prior exam. (R.R. at 134a-36a.) Dr. Agnew testified that “there is nothing about the 

mechanism of injury from August 2014 and nothing about the damage actually 

sustained to the labrum that day which would in any way accelerate the arthritic 

process” and opined that Claimant’s other diagnoses were unrelated to the work injury.

(R.R. at 139a-40a.) Regarding Claimant’s continued activity impairment, Dr. Agnew 

noted Claimant’s medical comorbidities unrelated to the shoulder injury of chronic 
4

knee pain, asthma, kidney stones, coronary artery disease, fibromyalgia, and depression

as contributing factors.

Dr. Agnew prepared a physician’s affidavit of recovery and opined that

Claimant fully recovered from the work injury as of the date of the IME. He also

opined that Claimant does not require any additional treatment for the work-related 

injury, that no work restrictions were necessary due to that injury, and that, “from the 

standpoint of the isolated labral tear alone, he would be capable of any and all activities 

of which he was capable on or just before August 13 of 2014.” (R.R. at 152a.)

Claimant testified that he sustained the 2014 work injury when he was in 

his early 40s while he was handling an aluminum pipe at the mine. Claimant returned 

to work immediately after this injury and worked without interruption until January of 

2016, when a large crank grabbed ahold of his glove, yanked his right arm, and injured 

his hand. Claimant has not returned to work since that time and is receiving WC 

benefits for the August 2014 injury. (R.R. at 50a-51a.) Claimant reported that he

underwent shoulder surgery in July of 2021 and has had physical therapy since that 

time. He described his symptoms as constant pain, difficulty sleeping, migraines, and 

a lack of mobility in his right extremity. On cross-examination, Claimant testified that 

he has not applied for any sedentary work, that he is able to drive, and that he is 

involved in the home schooling of his children. (R.R. at 81a-83a.)

Claimant presented the March 3, 2022 deposition of Rekha Galla, M.D.

(Dr. Galla), who is board certified in anesthesiology and chronic pain management. 

Dr. Galla treated Claimant for right shoulder pain on nine occasions between December 

2020, and January 2022, and he testified that Claimant continued to experience 

significant pain and limited range of motion in his right shoulder as of his last office 

visit. (Dr. Galla Dep., 3/03/22, at 10-11, 15.) Dr. Galla diagnosed Claimant with “right 
5

shoulder degenerative joint disease at the glenohumeral, as well as AC joint; SLAP

lesions in the shoulder; recurrent rotator cuff tears of the supraspinatus; and recurrent 

biceps and labral tears.” (Id. at 24.) He opined that Claimant’s August 2014 work 

injury resulted in chronic right shoulder pain and an aggravation of his underlying 

arthritis at the glenohumeral joint. Dr. Galla described Claimant’s overall prognosis as 

poor and opined that he cannot return to his previous full-time employment because of 

his shoulder injury and should instead be restricted to light duty sedentary work. 

Claimant also presented the depositions of Dr. Rodosky, dated December 

1, 2017, and April 12, 2022. Dr. Rodosky reported that he examined Claimant in 

January and April of 2017, and that Claimant presented with a chief complaint of right 

shoulder pain. (Dr. Rodosky Dep., 12/01/17, at 6, 14.) Dr. Rodosky’s working 

diagnosis of Claimant was “a right shoulder recurrent subacromial impingement along 

with biceps rotator cuff interval capsular partial tears, glenohumeral arthritis, partial 

labral tears and symptomatic acromioclavicular arthritis.” (Id. at 14-15.) He opined 

that Claimant’s partial labral tears and the biceps rotator cuff interval capsular partial 

tears were related to the 2014 work injury, and that while the underlying arthritis was 

present before the injury, the injury aggravated it.

During his April 12, 2022 deposition, Dr. Rodosky testified that he 

performed shoulder surgery on Claimant in July of 2019, and that the procedure did 

not resolve his pain. (Dr. Rodosky Dep., 4/12/22, at 14-15.) Dr. Rodosky again

conducted surgery on Claimant in July of 2021 and treated him post-operatively. As 

of Claimant’s last office visit in November of 2021, Dr. Rodosky placed Claimant on

sedentary work duty based on his assessment that Claimant is not capable of returning 

to his time of injury position. Dr. Rodosky opined that the aggravation of Claimant’s 
6

arthritis and other ancillary pathologies necessitating surgical intervention were 

causally related to his work injury, and that he will never return to his pre-injury state. 

By September 19, 2022 decision, WCJ Lawton granted Employer’s 2021 

Termination Petition and terminated Claimant’s WC benefits as of April 21, 2021. In 

doing so, the WCJ accepted Dr. Agnew’s testimony as credible over the testimony of 

Claimant’s medical witnesses and noted that Dr. Agnew’s examination was more 

thorough than the examinations by Claimant’s experts. The WCJ determined that 

Employer established Claimant’s full recovery from his work-related injury as of the 

date of his 2021 IME; found persuasive Dr. Agnew’s testimony that there is nothing 

about an isolated tear of the labrum which would cause or aggravate Claimant’s

arthritis diagnoses or lead to additional degenerative labral tears; and these additional 

diagnoses were instead related to the passage of time in an already arthritic shoulder. 

(R.R. at 214a.) Regarding Claimant’s review petition, the WCJ rejected Claimant’s

position that the description of his work injury should be expanded and specifically 

found that “Claimant’s experts, in formulating their opinions, have rejected the findings 

from the prior decision indicating that the injury was limited to a labral tear.” (R.R. at 

215a.)

Claimant appealed to the Board, arguing that Employer failed to establish

his full recovery from his work injury since the last disability adjudication. The Board 

affirmed WCJ Lawton’s decision on March 30, 2023. This appeal followed.
7

II. Analysis1

On appeal, Claimant challenges the Board’s decision affirming WCJ 

Lawton’s grant of Employer’s 2021 Termination Petition by contending the evidence 

fails to demonstrate he had fully recovered from his 2014 work injury. Claimant’s 

argument is twofold, in that he first argues the WCJ disregarded the findings made

regarding the 2017 Termination Petition where Dr. Agnew offered essentially the same 

testimony during both the 2017 and 2021 proceedings. (Claimant’s Br., at 13-17.) 

Claimant also maintains that WCJ Lawton failed to make an express factual 

determination that his physical condition had changed since the 2017 adjudication, in 

contravention of controlling case law. (Id. at 17-19.) We disagree.

Section 413(a) of the Workers’ Compensation Act (Act)2authorizes the 

termination of benefits based on medical evidence demonstrating that a claimant’s 

work-related injury has resolved. It provides in pertinent part:

A workers’ compensation judge designated by the 

department may, at any time, . . . terminate a notice of 

compensation payable . . . upon petition filed by either party 

with the department, upon proof that the disability of an 

injured employe has increased, decreased, recurred, or has 

temporarily or finally ceased, or that the status of any 

dependent has changed.

77 P.S. § 772.3

 

1 Our standard of review is limited to determining whether the findings of fact were supported 

by substantial evidence, whether an error of law was committed, or whether constitutional rights were 

violated. Phoenixville Hospital v. Workers’ Compensation Appeal Board (Shoap), 81 A.3d 830, 838 

(Pa. 2013).

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

3

“Under workers’ compensation law, the term disability is synonymous with loss of earning 

power.” Donahay v. Workers’ Compensation Appeal Board (Skills of Central PA, Inc.), 109 A.3d 

787, 792 (Pa. Cmwlth. 2015).
8

“To succeed in a termination petition, an employer bears the burden of 

proving by substantial evidence that a claimant’s disability ceased, or any remaining 

conditions are unrelated to the work injury.” Westmoreland County v. Workers’ 

Compensation Appeal Board (Fuller), 942 A.2d 213, 217 (Pa. Cmwlth. 2008). “An 

employer may satisfy this burden by presenting unequivocal and competent medical 

evidence of the claimant’s full recovery from [his] work-related injuries.” Id.

In Lewis v. Workers’ Compensation Appeal Board (Giles & Ransome, 

Inc.), 919 A.2d 922 (Pa. 2007), our Supreme Court outlined the applicable standard as 

follows: 

In order to terminate benefits on the theory that a claimant’s 

disability has reduced or ceased due to an improvement of 

physical ability, it is first necessary that the employer’s 

petition be based upon medical proof of a change in the 

claimant’s physical condition. Only then can the workers’ 

compensation judge determine whether the change in 

physical condition has effectuated a change in the claimant’s 

disability, i.e., the loss of his earning power. Further, by 

natural extension it is necessary that, where there have been 

prior petitions to modify or terminate benefits, the employer 

must demonstrate a change in physical condition since the 

last disability determination.

Id. at 926. 

 In a case where a claimant continues to experience pain, an employer’s 

burden is met where its medical expert unequivocally opines within a reasonable 

degree of medical certainty that the claimant is fully recovered, the claimant can return 

to work without restrictions necessitated by the work injury, and there are no objective 

medical findings connecting the claimant’s substantiated complaints of pain to the 

work injury. Baumann v. Workers’ Compensation Appeal Board (Kellogg Co.), 147 

A.3d 1283, 1290 (Pa. Cmwlth. 2016). If the WCJ credits this testimony, the 
9

termination of benefits is proper, as it is well settled that the WCJ is the ultimate 

factfinder with exclusive province over questions of credibility and evidentiary weight 

and is therefore free to accept or reject the testimony of any witness in whole or in part. 

Id.

 Here, Dr. Agnew unequivocally testified that Claimant’s 2014 work

injury, which he described as limited in nature, had fully healed since the prior 

adjudication, and that this injury was not the cause of Claimant’s continued complaints 

of pain. Dr. Agnew firmly attributed any ongoing pain to Claimant’s separate 

underlying condition of arthritis, which was not aggravated by his work injury, and he 

also pointed to Claimant’s unrelated comorbid conditions including chronic knee pain, 

asthma, coronary artery disease, and fibromyalgia as potential contributors to his 

inactivity. WCJ Lawton credited Dr. Agnew’s testimony over the testimony of 

Claimant’s medical witnesses, which he found not credible to the extent that it 

conflicted with Dr. Agnew’s testimony.

Based upon its review of the record and mindful of WCJ Lawton’s role as 

factfinder, the Board determined: 

As to the Termination Petition, [Employer] established 

that Claimant had fully recovered from the August 13, 2014 

injury as of April 21, 2021 based on the credited opinion of 

Dr. Agnew that there was a change in Claimant’s physical 

condition between the first IME on March 29, 2017 and the 

second IME on April 21, 2021. Consequently, there was 

substantial, competent evidence supporting a change in 

Claimant’s physical condition since the WCJ’s October 19, 

2018 decision and the date the WCJ found Claimant to be 

fully recovered. 

Specifically, [Employer] had alleged in its first 

Termination Petition that Claimant had fully recovered as of 

March 30, 2017, but that petition was denied in the WCJ’s
10

October 19, 2018 decision. Thus, [Employer] had the burden 

of proving in the present Termination Petition, through the 

presentation of medical evidence, a change in Claimant’s 

physical condition between October 19, 2018, the date of the 

prior adjudication, and April 21, 2021, the second date it 

alleged full recovery. [Employer’s] case had to begin with 

the adjudicated facts as to the first Termination Petition and 

work forward in time to show the required change. . . . 

In the instant case, the WCJ accepted [Employer’s]

medical evidence of full recovery based on a changed 

condition as credible and thus the change in condition

standard set forth in Lewis was met. When asked whether 

there had been a change in Claimant’s condition from the 

first IME on March 29, 2017 and the second IME April 21, 

2021, Dr. Agnew replied: There had been a change in the 

four years between my examinations. Dr. Agnew explained 

the basis for this conclusion, including that there “was a 

physical examination change in that [Claimant] had not only 

failed to develop atrophy from disuse over those four years 

but had actually gained muscle mass at both arms and 

forearms, remaining larger on the right, dominant side than 

he was on the left.” Dr. Agnew further opined that Claimant 

did not need additional treatment or restrictions in relation to 

the resolved work injury. The WCJ specifically credited this 

testimony.

Furthermore, Dr. Agnew indicated that his second 

opinion of full recovery was based in part on documentation 

generated after the prior adjudication on October 19, 2018.

This documentation included notes concerning Claimant’s

right shoulder surgery on July 23, 2019, a February 5, 2020 

note, a December 9, 2019 MRI, April 2021 radiographs, and 

Dr. Gall[a]’s June 2021 narrative letter. The WCJ did not 

accept Claimant’s testimony regarding the extent of his

symptoms and limitations based on the nonorganic findings 

made by Dr. Agnew and noted that the cause of Claimant’s 

problems is a medical question. Dr. Agnew’s testimony that 

he found no muscle atrophy from his last exam over three 

years prior demonstrated to him that there was no disuse of 
11

the arm. Because the WCJ accepted the defense expert’s 

testimony, a change in physical condition was established 

and the Lewis standard was satisfied. As such, the credited 

testimony of Dr. Agnew constitutes substantial, competent 

evidence supporting a change in Claimant’s physical 

condition since the WCJ’s October 19, 2018 decision 

denying the first Termination Petition. Therefore, the WCJ

did not err by granting the second Termination Petition. 

(R.R. at 227a-30a.) (most citations omitted).

Based on the foregoing, we conclude there was substantial evidence to 

support the WCJ’s conclusion that Employer proved there was a change in Claimant’s 

physical condition since the prior adjudication such that the Lewis standard was met. 

Despite Claimant’s repeated attempts to expand the 2014 work injury to include 

additional unrelated diagnoses, the evidence demonstrates that his injury was limited,

had fully resolved as of the date of the second IME, and his ongoing complaints of pain 

were attributable to the pre-existing nature of his degenerative arthritic condition.

Additionally, while Claimant asserts that WCJ Lawton failed to make the 

necessary factual finding of a change in his physical condition since the prior 

adjudication, a review of the WCJ’s decision makes clear that he did make this finding, 

albeit not using those express terms. Mindful of the fact that WCJ Lawton held both 

the 2017 and 2021 termination proceedings, a fair reading of his decision plainly 

reflects his conclusion that there had been an improvement in Claimant’s physical 

condition over the span of the approximate four-year period between those hearings, to 

the extent that his work injury had fully resolved. Accordingly, because Claimant’s

issues on appeal lack merit, we affirm the Opinion and Order of the Board.

________________________________

PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Johnny L. Pierson, :

Petitioner :

:

 v. : No. 396 C.D. 2023 

:

Consol Pennsylvania Coal :

Company, LLC (Workers’ :

Compensation Appeal Board), :

Respondent :

ORDER

AND NOW, this 28th day of March, 2024, the March 30, 2023 Opinion 

and Order of the Workers’ Compensation Appeal Board is hereby AFFIRMED.

________________________________

PATRICIA A. McCULLOUGH, Judge