IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Matthew McCourt, :

:

Petitioner :

:

v. : No. 1520 C.D. 2016

: Submitted: February 3, 2017

Workers' Compensation Appeal :

Board (Pathmark Stores, Inc.), :

:

Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: August 2, 2017

Matthew McCourt (Claimant) petitions for review of the August 16, 

2016 order of the Workers’ Compensation Appeal Board (Board) affirming the 

July 15, 2015 decision of a workers’ compensation judge (WCJ), which relied

solely on the allegations in Claimant’s claim petition to award him total disability

benefits for a closed period. Claimant argues that the WCJ erred in concluding that 

he did not meet his burden to prove ongoing disability beyond the date of 

Pathmark Stores, Inc.’s (Employer) untimely answer. Claimant also contends that 

the WCJ erred in placing the burden on him to establish a causal connection

between his work injury and scars on his neck. For the following reasons, we 

affirm in part and we reverse and remand in part.
2

Claimant filed a claim petition1on May 23, 2014, alleging that on 

January 5, 2014, he suffered injuries described as “lower/upper back pain, cervical 

spondylosis with myelopathy, facial contusions, r/o neurological injury and 

scarring of face” when he left Employer’s store, slipped on ice, and hit a metal 

fence headfirst. Reproduced Record (R.R.) at 1a-4a. Claimant listed his weekly 

wage as $409.45, stated that the injuries prevented him from returning to work, and 

sought payment for total disability from January 5, 2014 and ongoing. R.R. at 3a. 

The petition was assigned to a WCJ, who scheduled a hearing for June 30, 2014. 

Employer filed an answer to the claim petition on June 26, 2014.

At the June 30, 2014 hearing, Claimant made a motion to have the 

matter decided on the basis of the allegations in the petition. Citing Yellow Freight 

System, Inc. v. Workmen’s Compensation Appeal Board (Madara), 423 A.2d 1125 

(Pa. Cmwlth. 1981), Claimant asserted that all of the facts alleged in the claim 

petition were deemed admitted due to Employer’s failure to file a timely answer.2 

WCJ’s Findings of Fact, No. 5. The WCJ determined that the description of the

injury, date of the injury, how it occurred, where it occurred, and notice were all 

well pled. Id. Additionally, the WCJ found that Claimant’s disability, which 

 

1 Department of Labor and Industry, Bureau of Workers’ Compensation form LIBC 362. 

2

Section 416 of the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as 

amended, 77 P.S. §821, permits an answer to a claim petition to be filed within 20 days of 

service upon the employer. Additionally, it provides that “if a party fails to file an answer and/or 

fails to appear in person or by counsel at the hearing without adequate excuse, the [WCJ] hearing 

the petition shall decide the matter on the basis of the petition and evidence presented.” Id. 

In Yellow Freight, we interpreted the phrase “and evidence presented” to mean evidence 

presented by the claimant, and we held that the untimeliness of an employer’s answer barred the 

employer from introducing evidence of an affirmative defense to the employee’s claim. 423 

A.2d at 1127-28.
3

began on January 5, 2014, was well pled. Id. However, the WCJ determined that 

Claimant’s allegations as to his wages, facial scars, ongoing disability, and cervical 

fusion surgery were not well pled and would have to be proved at a later hearing. 

Notes of Testimony, June 30, 2014 (N.T.) at 5. The WCJ scheduled the next 

hearing for March 2015 and gave Employer 21 days to submit evidence explaining 

why it had not filed a timely answer. 

After Employer advised that no such evidence would be offered, the 

WCJ issued an interlocutory order on July 23, 2014. The order granted Claimant’s 

Yellow Freight motion, declared that all the well pled allegations were accepted as 

fact, and awarded Claimant total disability benefits of $380.56 per week from 

January 5, 2014, to June 26, 2014, to be credited against any future compensation 

award. R.R. at 9a. 

In his October 1, 2014 deposition, Claimant testified that when he 

exited Employer’s store on January 5, 2014, he slid on an ice patch and hit his head 

on a metal fence. Claimant said that store manager Walter Suenderhalf witnessed 

his fall, after which he lost consciousness and was taken by ambulance to Crozer 

Chester Medical Center. Claimant stated that he underwent surgeries on July 8 and 

9, 2014, including a cervical fusion. He testified that the surgeries greatly helped 

his condition, but he continues to experience significant pain and his doctors have

not yet cleared him to return to work. 

Employer introduced Claimant’s hospital records of January 5, 2014, 

which reflected a primary diagnosis of alcohol intoxication. Employer also asked 

Claimant about statements he allegedly made indicating that he had consumed 

multiple beers before his shift on January 5, 2014, but Claimant said that he did not 

recall making these statements. 
4

Claimant also testified before the WCJ at the March 2, 2015 hearing, 

stating that he had not yet recovered from his injuries but continues to suffer severe 

pain in his neck, shoulders and head; constant headaches; muscle spasms in his 

legs; and burning and tingling in his feet and palms. Claimant said that he

continues to see doctors for physical therapy and pain treatments. Claimant did not

believe that he could return to work, do any heavy lifting, or perform many manual 

tasks due to his injuries. However, he did not provide any expert medical 

testimony or other medical evidence. 

Claimant identified several scars on his face, head, and neck, which he 

asserted were related to the work injury. He testified that the scars on the side and 

back of his neck and back of his head were related to his cervical surgery. 

Employer introduced into evidence a statement of Claimant’s wages, 

Claimant’s deposition testimony, and Claimant’s hospital records from January 5, 

2014. Employer presented no witnesses or additional evidence at this hearing.3 

In her decision of July 15, 2015, citing Claimant’s demeanor during 

the March 2, 2015 hearing, the WCJ found that Claimant was generally not 

credible. Because Claimant presented no credible testimony or medical evidence,

the WCJ concluded that Claimant failed to prove that he was disabled after the date 

Employer’s untimely answer to the claim petition was filed. Based on the Yellow 

Freight ruling, and her own observations, the WCJ granted the claim petition to the 

extent of her interlocutory order, concluding that Claimant had met his burden of 

showing that he fell and sustained facial injuries on January 5, 2014, in the course 

 

3

The WCJ did not allow Employer to introduce Suenderhalf’s deposition testimony to 

dispute that Claimant’s injuries fell within the course and scope of employment, noting that 

evidence related to the affirmative defense was barred by the granting of the Yellow Freight

motion. WCJ’s Findings of Fact, No. 11.
5

and scope of his employment. The WCJ awarded 60 weeks of compensation at 

$380.56 per week for scars on Claimant’s forehead, eyebrow, and nose, explaining 

that the scars were apparent and medical evidence was not required to prove their 

relationship to the work injury. However, because Claimant offered no credible 

testimony or other evidence, the WCJ found that Claimant failed to establish that 

he had surgery related to the work injury. Accordingly, the WCJ concluded that 

Claimant did not establish that he was entitled to compensation for ongoing 

disability or for scarring on his neck. 

Claimant appealed to the Board. Citing Dandenault v. Workers’ 

Compensation Appeal Board (Philadelphia Flyers, Ltd.), 728 A.2d 1001 (Pa. 

Cmwlth. 1999), the Board noted that a failure to file a timely answer is not the 

equivalent of default judgment; instead, where an employer’s answer is untimely,

the WCJ must still determine the credibility and weight of the evidence and 

whether the totality of the evidence is sufficient to satisfy the claimant’s burden. 

Id. at 1005. The Board reasoned that Claimant failed to present credible testimony 

establishing ongoing disability, or medical evidence to establish a causal 

connection between the work injury and the cervical surgery.4 Accordingly, the 

Board affirmed the WCJ’s decision.

 

4

The Board stated that a causal relationship between the admitted work injury, cervical 

spondylosis with myelopathy, and cervical fusion surgery was not obvious, as an untrained 

layman could not make a connection between them. See Tobias v. Workmen’s Compensation 

Appeal Board (Nature’s Way Nursery, Inc.), 595 A.2d 781, 784 (Pa. Cmwlth. 1991). 
6

On appeal to this Court,5 Claimant argues that the WCJ erred in 

awarding total disability benefits for a closed period because the allegations in the 

claim petition entitled Claimant to a rebuttable presumption of ongoing disability

and Employer offered no contrary evidence. Claimant also asserts that the 

allegations in the claim petition sufficiently pled a causal relationship between his 

work injury and the cervical surgeries. In response, citing Chik-Fil-A v. Workers’ 

Compensation Appeal Board (Mollick), 792 A.2d 678 (Pa. Cmwlth. 2002), and 

Heraeus Electro Nite Co. v. Workmen’s Compensation Appeal Board (Ulrich), 697 

A.2d 603 (Pa. Cmwlth. 1997), Employer argues that the presumption of ongoing 

disability was rebutted when the WCJ rejected Claimant’s testimony as not 

credible. 

Initially, we note that in an original claim proceeding, the claimant 

bears the burden of proving all of the elements necessary to support an award, 

including the burden to establish the duration and extent of disability. Inglis House 

v. Workmen’s Compensation Appeal Board (Reedy), 634 A.2d 592, 595-96 (Pa. 

1993). Where the employer files an untimely answer to the claim petition without 

good cause, the WCJ must decide the matter on the basis of the claim petition and 

any additional evidence presented by the claimant. Section 416 of the Act, 77 P.S. 

§821; Yellow Freight, 423 A.2d at 1127-28. In such cases, every factual allegation 

in the claim petition is deemed admitted, and the employer is barred from 

presenting evidence in rebuttal or as affirmative defenses. Greeley v. Workmen’s 

 

5 Our scope of review is limited to determining whether constitutional rights were 

violated, whether an error of law was committed, or whether necessary findings of fact are 

supported by substantial evidence. 2 Pa. C.S. §704. 
7

Compensation Appeal Board (Matson Lumber Co.), 647 A.2d 683, 685-86 (Pa. 

Cmwlth. 1994). 

In Greeley, the referee6found that the employer failed to file a timely 

answer and was barred from presenting an affirmative defense to the claimant’s 

claim petition. The referee rejected the claimant’s testimony and that of the 

claimant’s medical witness as not credible and, having done so, concluded that the 

claimant failed to submit competent and credible evidence necessary to support an 

award of compensation. The Board affirmed the referee’s decision. 

On further appeal in Greeley, we reversed the Board’s decision. 

Relying on Hildebrand v. Workmen’s Compensation Appeal Board (Fire 

Department/City of Reading), 532 A.2d 1287 (Pa. Cmwlth. 1987),7 we noted that 

Section 416 of the Act imposes no duty on a claimant to prove anything by 

evidence other than the allegations in the claim petition. After recognizing the 

referee’s authority over questions of credibility and evidentiary weight, we 

observed that “the referee’s credibility determinations do not constitute evidence

which can be weighed against the admitted allegations in the claim petition.” 

Greeley, 647 A.2d at 687 (emphasis added). Accordingly, we reversed the Board’s 

decision, and we held that the claimant did not produce any evidence apart from 

 

6 At the time, workers’ compensation judges were known as referees.

7

In Hildebrand, the allegations in the claim petition were deemed admitted due to the 

employer’s failure to file a timely answer. The referee found that the claimant failed to present 

other evidence to support his claim petition and awarded benefits based solely on the allegations 

in the claim petition. On appeal, this Court agreed with the Board that Section 416 of the Act 

does not require a claimant to present additional evidence to support the allegations in the claim 

petition. 532 A.2d 1290. We declined to rule on the legal sufficiency of the claimant’s 

allegations because that issue was not raised, but we emphasized that under Section 416 of the 

Act, no additional evidence is necessary to meet a claimant’s burden of proof. 
8

the admitted allegations in the claim petition, which were legally sufficient to meet 

the claimant’s burden of proof. 

The employer in Heraeus, having filed an untimely answer,

challenged the WCJ’s award of ongoing disability, arguing that the use of the 

phrase “to present” in the claim petition was insufficient to sustain the claimant’s 

burden to prove ongoing disability beyond the date the claim petition was signed. 

On appeal to this Court, we noted that the well-pled allegations specifically set 

forth in the claim petition did not need to be corroborated; they stood on their own 

as competent evidence. 697 A.2d at 608. We clarified that an employer’s failure 

to timely file an answer to a claim petition is not the equivalent of a default 

judgment, and we observed that the employer could have introduced evidence to 

prove that events occurred, or circumstances changed, such as the extent of the 

claimant’s disability, after the date the employer’s answer was due. Id. We held 

that, because the employer failed to present any evidence concerning the 

claimant’s disability after the date on which the employer’s answer should have 

been filed, the WCJ was entitled to conclude, based on the only evidence of record, 

that the claimant’s existing injuries would continue into the indefinite future. 697 

A.2d at 609-10. 

Even if Employer was entitled to challenge that specific 

finding by the WCJ, we note that the WCJ's 

interpretation of the phrase “to present” is correct. There 

are not many other ways in the limited space on the 

official claim petition form for a claimant to set forth at 

the time the petition is filed that her disability is still 

continuing and is expected to do so into the indefinite 

future. If a petition is filed for a closed period of 

disability, there will be a specific end date on the petition 

which will precede the date the petition was filed.
9

When a claimant files a claim petition listing that he or 

she is seeking a disability extending “to present,” i.e., the 

date the petition is filed, the claimant is obviously 

indicating an ongoing disability which, in the case of an 

unanswered or untimely answered petition, will provide 

the claimant with a rebuttable presumption which will 

sustain her burden of proof of a continuing disability 

from the last date the answer should have been filed 

throughout the pendency of the litigated matter, thus 

satisfying the claimant’s burden under Inglis House v. 

Workmen’s Compensation Appeal Board (Reedy), [634 

A.2d 592 (Pa. 1993)]. The employer can, however, 

present evidence to rebut the presumption of disability 

after the last date its answer to the claim petition could 

have been timely filed.

Heraeus, 697 A.2d at 609 n.10 (emphasis added).

We reaffirmed these principles in Rite Aid Corporation v. Workers’ 

Compensation Appeal Board (Bennett), 709 A.2d 447 (Pa. Cmwlth. 1998). In Rite 

Aid, the claimant filed a claim petition alleging that he suffered a work-related 

fracture of his left foot and, as a result of increased weight bearing on his right 

side, an aggravation of a pre-existing disease in his right foot. The claimant stated 

in the claim petition that he was disabled ‘“from 2/28/95 to ongoing.”’ 709 A.2d at 

448. 

The employer filed an untimely answer and did not offer an adequate 

excuse. Consequently, the WCJ treated all of the averments in the claim petition 

as admitted. The claimant also offered testimony that was consistent with those 

allegations. The WCJ granted the claim petition and ordered the employer to pay 

disability benefits into the indefinite future. The employer appealed, arguing that 

the WCJ erred in precluding the employer from presenting a defense to the claim 

petition and in relieving the claimant of the burdens to prove that his left foot 

problem was related to the work injury and that his disability was ongoing. 
10

We first stated:

Where an employer files a late answer without adequate 

excuse, every factual allegation asserted in the claim 

petition is admitted as true, and the employer is barred 

from presenting any affirmative defenses or challenges to 

any of the factual allegations in the claim petition. 

Additionally, the claimant does not have to corroborate 

[the] admitted allegations . . . .

Rite Aid, 709 A.2d at 449 (citations omitted). Citing Heraeus, we explained that

in the case of an untimely answer to a claim petition in 

which a claimant alleges in his or her claim petition that 

the disability extends to the present or is ongoing, this 

allegation “will provide the claimant with a rebuttable 

presumption which will sustain [the claimant’s] burden 

of proof of a continuing disability from the last date the 

answer should have been filed throughout the pendency 

of the litigated matter....” Heraeus, 697 A.2d at 609 

n.10 (emphasis added). Thus, employers who file a late 

answer to a claim petition are permitted to offer evidence 

to rebut this presumption.

Rite Aid, 709 A.2d at 450. The employer in Rite Aid never sought to rebut the 

presumption that the claimant remained disabled by presenting evidence 

concerning the duration of the claimant’s disability, and we held that the 

employer’s failure to do so constituted a waiver of that issue on appeal. 

Subsequently, in Chik-Fil-A, we again held that the employer’s failure 

to file a timely answer barred it from asserting affirmative defenses to the 

allegations in the claim petition, but we clarified that 

Claimant is only entitled to a rebuttable presumption that 

her disability continues after the last date that Employer 

should have filed an answer. Heraeus. Employer is not 

barred, therefore, from presenting evidence itself, or 

attempting to discredit the Claimant’s evidence, to rebut 
11

the presumption that Claimant’s disability continues into 

the indefinite future. Id.

Chik-Fil-A, 792 A.2d at 689. In Chik-Fil-A, the employer did offer evidence that 

work was available within the claimant’s restrictions, and we held that the WCJ 

erred in failing to render findings addressing that evidence. 

In light of the above decisions, we conclude that the WCJ erred in 

failing to recognize that Claimant was entitled to a rebuttable presumption of 

ongoing disability based on the admitted allegations in his claim petition. ChikFil-A; Rite Aid; Heraeus. The WCJ’s rejection of Claimant’s testimony as not 

credible is not evidence. Greeley, 647 A.2d at 687. Because Employer presented 

no evidence to rebut the presumption of ongoing disability, the WCJ erred in 

limiting the award of compensation to a closed period.8 Rite Aid.

Claimant next argues that the WCJ erred in concluding that the 

allegations in the claim petition are not sufficient to establish a causal relationship 

between the scars on his neck and the accepted cervical injury. Relying on Gens v. 

Workmen’s Compensation Appeal Board (Rehabilitation Hospital of 

Mechanicsburg/Aetna Life and Casualty), 631 A.2d 804 (Pa. Cmwlth. 1993),

Claimant asserts that the cervical fusion surgery and the resultant scarring were

obvious results of the cervical spondylosis injury admitted pursuant to Yellow 

Freight and that Employer bore the burden of proving that the cervical fusion 

surgeries were unreasonable or unnecessary. 

 

8 We note that at the final hearing on Monday, March 2, 2015, Employer stated that it had 

scheduled a deposition of a Dr. Fras for Friday, March 6, 2015. R.R. at 13a. Claimant objected 

on the basis of timeliness, asserting that the final hearing had been scheduled months earlier, and 

the WCJ sustained the objection. R.R. at 14a-15a. Employer does not complain about that 

ruling on appeal. 
12

As previously noted, the claim petition describes Claimant’s injuries 

as “lower/upper back pain, cervical spondylosis with myelopathy, facial 

contusions, r/o neurological injury and scarring of face.” R.R. at 2a. Notably, the 

claim petition does not allege either scarring of the neck or surgery, nor does it 

seek compensation for any disfigurement (scars) or for medical bills related to 

cervical surgery. Therefore, the WCJ properly found that the neck scars for which 

Claimant seeks compensation are not well pled and are not acknowledged by 

Employer under Yellow Freight. 

The WCJ found:

Claimant’s counsel submitted photographs in support of 

Claimant’s claim for disfigurement. Photograph 1 and 

Photograph 5 . . . are the photographs [of] the side of 

Claimant’s neck and the back of his neck. Claimant 

testified that these were related to the surgery he had. 

There is no evidence that Claimant had surgery related to 

this injury other than his statements. This Judge finds his 

testimony insufficient to sustain Claimant’s burden [to 

prove] that his surgery was related to his fall on January 

5, 2015. Thus, since no evidence was presented by 

Claimant, there is no evidence tying these scars to his 

work injury. No award is made for the scars on 

Claimant’s side and back of his neck.

WCJ’s Findings of Fact, No. 15. Because Claimant did not plead or otherwise seek 

compensation related to cervical surgery or neck scars in the claim petition and 

offered no credible testimony or other evidence related to that claim, we agree that 

the record does not support an award of compensation for neck scars. 

Nevertheless, relying on Gens, Claimant contends that because the 

neck scars involve the same body part as the admitted injury, cervical spondylosis 

with myelopathy, he does not bear the burden to prove a causal relationship 

between the work injury, the surgery, and the scars on his neck. We disagree.
13

In Gens, the claimant was injured in an automobile accident in 1984. 

She subsequently sustained work injuries on June 7 and November 26, 1985,

during the course of her employment as a registered nurse. A referee found that 

the claimant’s work injuries aggravated her pre-existing back condition originating 

from the automobile accident and awarded her benefits. The referee’s decision 

was affirmed by the Board and this Court. Thereafter, the claimant filed petitions 

seeking payment of medical bills incurred since June 7, 1985. In response, the 

employer also filed petitions alleging that some of the medical treatment that the 

claimant planned to undergo was not causally related to the work injury. The 

referee consolidated the petitions and found in the claimant’s favor. The Board 

reversed, and the claimant appealed to this Court. 

The issue presented in Gens was whether the claimant, “having 

already proven a causal connection between her work injuries and her disability, 

was subsequently required to prove a causal connection between her work injury 

and her medical bills.” 631 A.2d at 805. We began our analysis by noting that 

“[t]here is no dispute that [the claimant] has incurred medical bills for the 

treatment of her back condition,” and that the claimant’s no-fault insurance carrier 

at the time of her 1984 automobile accident paid her medical expenses from the 

time of the car accident up to the time of this Court’s 1990 decision on the claim 

petition. Id. and n.4. We further explained that the “treatment at issue involves the 

claimant’s back condition, which has already been adjudicated to have been 

compensable, not a non-obvious symptom or disability arising from the back 

condition. . . . it is obvious that in this case the medical expenses are for the back 

condition and the back condition is the compensable injury.” 631 A.2d at 806-807. 
14

Finally, we rejected the employer’s argument that the causal 

connection between the medical expenses and the work injuries was not obvious 

and that the medical expenses might instead be related to the original automobile 

accident or other non-employment factors, stating that “[t]his argument is 

essentially a relitigation of the claim petition proceedings.” Id. We concluded that 

an analysis requiring a claimant who has already proven that her back condition 

was causally related to her work injuries “to subsequently prove that the medical 

expenses for treatment of that back condition are causally related to her work 

injuries” would lead to an inequitable result. Id. at 807 (emphasis added). 

Accordingly, we held that it was the employer’s burden in that case to prove that 

any bills associated with the claimant’s back condition were unreasonable or 

unnecessary. 

Our analysis in Gens rested on the demonstrated connection between 

the claimant’s work injury and the medical bills for treatment of that injury In 

contrast to the facts in Gens, in this case there has been no prior adjudication or 

evidence presented to show that the medical treatment at issue, the cervical fusion 

surgery, is related to the work injury, cervical spondylosis with myelopathy. 

Claimant did not allege or seek compensation for cervical surgery or neck scars in 

the claim petition, and he offered no credible testimony or other evidence to 

establish a causal relationship between his work injury and the neck scars. Indeed, 

as the WCJ noted, Claimant offered no credible evidence that he underwent 

surgery. In sum, because Claimant offered neither allegations nor evidence on this 

issue, the material facts in Gens are distinguishable, and Claimant’s reliance on its

holding is misplaced. 
15

Accordingly, we reverse that part of the Board’s order affirming the 

WCJ decision to limit the award of wage loss compensation to a closed period, and 

we affirm the Board’s order in all other respects. We remand this matter to the 

Board for further proceedings consistent with this opinion.

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

Matthew McCourt, :

:

Petitioner :

:

v. : No. 1520 C.D. 2016

: 

Workers' Compensation Appeal :

Board (Pathmark Stores, Inc.), :

:

Respondent :

O R D E R

AND NOW, this 2

nd day of August, 2017, the order of the Workers’ 

Compensation Appeal Board (Board), dated August 16, 2016, is reversed in part 

and affirmed in part, and this matter is remanded to the Board for further 

proceedings in accordance with the foregoing opinion.

Jurisdiction relinquished. 

__________________________________

MICHAEL H. WOJCIK, Judge