IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Nelson Langley, :

Petitioner :

:

v. : No. 719 C.D. 2016

: SUBMITTED: October 7, 2016

Workers’ Compensation Appeal :

Board (Giant Food Stores), :

Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE JULIA K. HEARTHWAY, Judge

HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE HEARTHWAY FILED: January 19, 2017

Nelson Langley (Claimant) petitions for review of the April 20, 2016, 

order of the Workers’ Compensation Appeal Board (Board), which affirmed the 

decision of the workers’ compensation judge (WCJ) to grant Giant Food Stores’ 

(Employer) petition to terminate Claimant’s workers’ compensation benefits 

(termination petition). We affirm.

On September 15, 2007, while working for Employer, Claimant 

suffered a left shoulder injury when he stood up and struck his left shoulder on a 

shelf. (WCJ’s Findings of Fact, No. 1.) On February 14, 2008, Employer issued a 
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medical only notice of compensation payable (NCP), accepting liability for a left 

shoulder contusion. (Id.) 

Subsequently, Claimant filed a claim petition and Employer filed a 

termination petition, which were heard together by a WCJ. On December 26, 

2008, the WCJ granted Claimant’s claim petition and expanded Claimant’s injury 

to include a left shoulder contusion, cervical brachial syndrome, cervical 

radiculitis, cervical spine segment dysfunction, cervical spine sprain and strain, 

disc herniation with cord flattening at C3-4, accompanying severe spondylitic 

foraminal stenosis, disc bulge at C4-5, supraspinatus tendinosis, a tear of the 

supraspinatus at its critical junction, and tear of the labrum. The WCJ denied 

Employer’s termination petition. (Id., No. 2.)

Subsequently, Employer filed a modification petition based on an 

impairment rating evaluation, a modification/suspension petition based on a job 

offer, and a petition to review the treatment of Jarrad Teller, D.C. Claimant filed a 

petition to review a utilization review determination of Dr. Teller, a petition to 

review a utilization review determination of Peggy Rock, D.C., and a penalty 

petition for refusal to pay. All petitions were heard by a WCJ, who issued a 

decision on March 29, 2013. (Id., No. 4.)

The WCJ determined that Claimant had fully recovered from the left 

shoulder contusion, cervical sprain/strain, cervical brachial syndrome and labrum 

tear, and changed Claimant’s disability status to temporary partial disability as of 

November 22, 2011. The WCJ also determined that Claimant could not perform 
3

the offered position. The WCJ found Dr. Teller’s treatment from November 1, 

2010 to September 25, 2011, was reasonable and necessary, but that the treatments 

from Drs. Teller and Rock from September 26, 2011, and ongoing were not 

reasonable and necessary. The WCJ dismissed Claimant’s penalty petition. (Id., 

Nos. 5-6.)

On April 16, 2014, Employer filed a termination petition, asserting 

that Claimant had fully recovered from the September 15, 2007 work injury as of 

February 12, 2014, when Claimant was examined by Dennis W. Ivill, M.D. Dr. 

Ivill, who is board certified in physical medicine and rehabilitation, took a history

from Claimant, reviewed his medical records, and conducted an examination. Dr. 

Ivill acknowledged Claimant’s injuries, found that Claimant had a normal 

examination, and opined that Claimant was fully recovered from the September 15, 

2007 work injury as of the date of his examination. Dr. Ivill further opined that 

Claimant’s treatments were no longer reasonable or necessary. Dr. Ivill opined 

that Claimant could return to his pre-injury position with Employer full-time and 

without restrictions.1 (Id., Nos. 7-14.) 

Claimant testified on his own behalf regarding his condition, and his 

treatments with various doctors. Claimant stated that he cannot lift five pounds 

with his left hand and that his neck and shoulder will always irritate him. Claimant 

 

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Employer also presented two surveillance digital versatile discs (DVD) in support of its 

termination petition. The DVDs show Claimant sitting outside smoking, lightly shoveling snow, 

and clearing snow off of his car. Claimant mostly uses his right hand, but also minimally uses 

his left arm and hand. The WCJ determined that the DVDs eroded Claimant’s testimony 

regarding his pain level and the effects of weather on his condition. (Id., No. 15.)
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goes to therapy for one hour, three times a week, is able to drive, and runs errands 

once a week. Claimant denied helping around the house, cooking, cleaning, 

grocery shopping, and using his left hand/arm to remove snow from his property 

and car. Claimant receives injections, chiropractic spinal manipulation, physical 

therapy, and takes various prescribed medications throughout the day. Claimant 

estimated his pain level at a ten. Claimant, after watching the DVDs, continued to 

deny using his left hand to remove snow from his car, but did admit using his left 

hand to shovel snow. Claimant also acknowledged that the DVDs show him 

outside in the cold weather and carrying grocery bags. (Id., Nos. 18-19.) 

Claimant presented the deposition testimony of Sofia Lam, M.D., 

board certified in anesthesiology. Dr. Lam began treating Claimant on April 12, 

2013. Dr. Lam diagnosed Claimant with cervical sprain and strain, cervical 

radiculopathy, cervical foraminal stenosis, and occipital tension headache. Dr. 

Lam treated Claimant with injection therapy and a medication regimen. Dr. Lam 

opined that Claimant is not fully recovered and is unable to return to his pre-injury 

position. Dr. Lam further opined that she does not foresee Claimant returning to 

work in any capacity. (Id., Nos. 20-21.)

Claimant also presented the deposition testimony of Brent 

Weinerman, D.O., board certified in general practice. Dr. Weinerman began 

treating Claimant on August 9, 2012. Dr. Weinerman diagnosed Claimant with 

cervicobrachial syndrome, cervical radiculitis, cervical spine segment dysfunction, 

cervical spine sprain and strain, cervical disc herniation with cord flattening at C3-

4, accompanying severe spondylitic foraminal stenosis, disc bulge at C4-5, left 
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supraspinatus tendinosis, tear of the supraspinatus tendon and tear of the labrum in 

a patient that is status post left shoulder arthroscopic surgery and implant of a 

neurostimulator. Dr. Weinerman opined that Claimant could not work in any 

capacity.

The WCJ found Dr. Ivill credible and persuasive, and accepted his 

testimony as fact. The WCJ rejected the testimony of Claimant, Dr. Lam, and Dr. 

Weinerman as not credible. The WCJ determined that Claimant was fully 

recovered from his September 15, 2007 work injury as of February 12, 2014, and 

granted Employer’s termination petition. Claimant appealed to the Board, which 

affirmed. Claimant now petitions this Court for review.2

The employer bears the burden of proof in a termination proceeding. 

Udvari v. Workmen’s Compensation Appeal Board (USAir, Inc.), 705 A.2d 1290, 

1291 (Pa. 1997).

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.

Id. at 1293.

 

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

whether the adjudication is in accordance with the law, and whether necessary factual findings 

are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. 

C.S. § 704.
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Claimant argues that the WCJ erred in determining that he was fully 

recovered from the work-related injury based upon Dr. Ivill’s medical testimony

because he: (1) did not recognize the accepted work injury of a disc herniation at 

C3-4 with spinal cord flattening; and (2) he gave his opinions to a reasonable 

degree of medical probability rather than certainty. We disagree.

A medical professional is not required to believe a condition existed; 

he or she is merely required to accept as true the adjudicated fact that a condition 

existed and opine as to whether the condition continues to exist at the time of the 

examination. Folmer v. Workers’ Compensation Appeal Board (Swift 

Transportation), 958 A.2d 1137, 1148 (Pa. Cmwlth. 2008). 

Here, Dr. Ivill acknowledged all of Claimant’s work injuries, 

including the C3-4 disc herniation with flattening of the spinal cord, and opined to 

within a reasonable degree of medical certainty that Claimant had completely 

recovered from all of his injuries as of the date of his examination. (Dr. Ivill’s 

Deposition, 8/26/14, at 21-23, 27, 35-36.

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) Dr. Ivill further opined that Claimant 

could return to work without restriction. (Id., at 22, 33.) Dr. Ivill was asked 

“[h]ave all of your opinions been offered within a reasonable degree of medical 

certainty?” (Id. at 39.) To which Dr. Ivill replied, “Yes.” (Id.) Dr. Ivill addressed 

and accepted Claimant’s work injuries and cited objective medical evidence to 

support his conclusion that Claimant had fully recovered from all of the work 

 

3 Dr. Ivill testified that “the accepted diagnoses included . . . a C3-4 disc herniation with 

flattening of the spinal cord . . . . Using those diagnoses, it was my opinion that he could return 

to full-time, full-duty work effective . . . 2/12/14, with no restrictions.” (Dr. Ivill’s Deposition, 

8/26/14, at 22.)
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injuries. Our careful review of the record in this case has uncovered no basis to 

support Claimant’s argument that Dr. Ivill’s opinion was based on a standard other 

than a reasonable degree of medical certainty.

The WCJ is the ultimate fact finder and determines the weight and 

credibility of evidence. Lombardo v. Workers’ Compensation Appeal Board 

(Topps Company, Inc.), 698 A.2d 1378, 1381 (Pa. Cmwlth. 1997). “As such, the 

WCJ is free to accept or reject the testimony of any witness, including medical 

witnesses, in whole or in part.” Id. Here, the WCJ specifically found Dr. Ivill’s 

medical opinion more credible and persuasive than those of Dr. Lam and Dr. 

Weinerman, and stated reasons supporting his decision. (See WCJ’s Findings of 

Fact, Nos. 23-25.) The WCJ did not err in determining that Dr. Ivill’s testimony is 

legally sufficient to support a determination that Claimant has fully recovered from 

his work injuries.

Accordingly, we affirm. 

__________________________________

JULIA K. HEARTHWAY, Judge

Judge Cosgrove concurs in the result only. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Nelson Langley, :

Petitioner :

:

v. : No. 719 C.D. 2016

:

Workers' Compensation Appeal :

Board (Giant Food Stores), :

Respondent :

O R D E R

AND NOW, this 19th day of January, 2017, the order of the Workers’ 

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

__________________________________

JULIA K. HEARTHWAY, Judge