IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sarah Schock, :

Petitioner :

:

v. :

:

Workers’ Compensation Appeal :

Board (Brown’s Super Stores t/a :

Shop-Rite), : No. 478 C.D. 2019

Respondent : Submitted: September 13, 2019

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY 

JUDGE COVEY FILED: December 12, 2019

Sarah Schock (Claimant) petitions this Court for review of the Workers’ 

Compensation (WC) Appeal Board’s (Board) March 26, 2019 order affirming the 

Workers’ Compensation Judge’s (WCJ) decision after remand granting Brown’s 

Super Stores t/a Shop-Rite’s (Employer) Petition to Terminate Compensation 

Benefits (Termination Petition), and denying Claimant litigation costs. Claimant 

presents three issues for this Court’s review: (1) whether Claimant was entitled to 

wage loss benefits pending remand; (2) whether the Board erred by affirming the 

WCJ’s decision granting Employer’s Termination Petition; and (3) whether the Board 

erred by affirming the WCJ’s decision denying Claimant reimbursement for Donald 

McCarren, M.D.’s (Dr. McCarren), and Neil Kahanovitz, M.D.’s (Dr. Kahanovitz)

depositions.

1

 After review, we affirm.

 

1 Claimant includes an additional issue in her “Statement of Issues Presented”: whether the 

WCJ issued a reasoned decision. See Claimant Br. at 2. Because the reasoned decision issue is
2

Background2

Claimant worked for Employer as a deli clerk. On April 30, 2012, 

Claimant slipped and fell at Employer’s premises and injured her lower back. On

August 7, 2012, Employer issued a medical-only Notice of Compensation Payable

(NCP) describing the injury as a lumbar strain. See Reproduced Record (R.R.) at 1. 

Claimant filed a claim petition seeking partial disability benefits from April 30, 2012 

to July 16, 2012, and total disability benefits thereafter. She also filed a penalty 

petition alleging that Employer failed to recognize compensable injuries in its NCP 

and failed to pay compensation when due. Employer denied Claimant’s allegations. 

On June 12, 2013, Employer filed the Termination Petition to end Claimant’s WC 

benefits effective June 6, 2013, the date on which an independent medical 

examination (IME) determined Claimant had fully recovered from her work-related 

lumbar strain. Claimant denied Employer’s claims. 

A WCJ conducted hearings on December 10, 2012, April 24, April 25, 

July 31, October 30, and December 18, 2013, and March 17, 2014, at which Claimant 

testified and presented the deposition testimony of, inter alia, Kenneth Izzo, M.D.

(Dr. Izzo) and Andrew Freese, M.D. (Dr. Freese). Employer presented deposition 

testimony from, inter alia, Evan Kovalsky, M.D. (Dr. Kovalsky), Dr. McCarren and 

Dr. Kahanovitz. On June 26, 2014, the WCJ granted Claimant’s claim petition 

insofar as she was disabled due to her work injury for four periods of time between 

April 30, 2012 until June 6, 2013.

3

 The WCJ found that Claimant’s disability ceased

 

subsumed in the issue of whether the Termination Petition was properly granted, those issues will 

be addressed together herein.

2 Some facts have been adopted from Schock v. Workers’ Compensation Appeal Board 

(Brown’s Super Stores) (Pa. Cmwlth. Nos. 1352, 1366 C.D. 2016, filed August 21, 2017) (Schock 

I). 

3 Specifically, the WCJ awarded Claimant temporary total disability benefits for the 

following periods during which she was unable to work: July 16-August 19, 2012, August 28-

October 9, 2012, October 19-November 26, 2012, and December 4, 2012-June 6, 2013. The WCJ 

also granted her partial disability benefits for the following times during which she was able to 
3

as of June 6, 2013. Accordingly, the WCJ granted Employer’s Termination Petition

effective June 6, 2013. Both parties appealed to the Board.4

On June 16, 2015, the Board affirmed the WCJ’s decision to the extent it 

partially granted Claimant’s claim petition and denied her penalty petition, but 

vacated the WCJ’s decision in part and remanded for the WCJ to make an award for 

reimbursement of those litigation costs that Claimant incurred relative to the issues on 

which she prevailed.

On December 21, 2015, after remand, the WCJ awarded Claimant 

litigation costs attributable to the deposition testimonies of Dr. Freese, Dr. McCarren, 

Dr. Kahanovitz and a lay witness because they related to the successful parts of 

Claimant’s claim petition. Both parties appealed to the Board. On July 28, 2016, the 

Board reversed the WCJ’s litigation cost award related to Dr. McCarren’s and Dr. 

Kahanovitz’s deposition testimony, and affirmed the WCJ’s decision in all other 

respects. Claimant appealed from the Board’s June 16, 2015 and July 28, 2016 

orders to this Court.5 

On August 21, 2017, this Court: vacated the Board’s June 16, 2015 order 

granting the Termination Petition and remanded for the WCJ to issue a reasoned 

decision more adequately explaining her credibility determinations; and affirmed the 

July 28, 2016 order affirming the cost award for the Dr. Freese and lay witness 

depositions, but vacated the July 28, 2016 order insofar as it reversed the cost award 

for the Dr. McCarren and Dr. Kahanovitz depositions, which were to be reconsidered 

based upon a reasoned decision on the Termination Petition. See Schock v. Workers’ 

 

work light-duty for less than her pre-injury wages: April 30-July 16, 2012, August 20-August 27, 

2012, October 10-October 18, 2012, and November 27-December 3, 2012.

4 On August 8, 2014, the Board granted supersedeas as to costs incurred for the depositions 

of Dr. Freese, Dr. McCarren, Dr. Kahanovitz and a lay witness, but denied supersedeas in all other 

respects. See R.R. at 18-20. 

5

See Schock I, wherein the appeals were consolidated for this Court’s review.
4

Comp. Appeal Bd. (Brown’s Super Stores) (Pa. Cmwlth. Nos. 1352, 1366 C.D. 2016, 

filed August 21, 2017) (Schock I).

On February 23, 2018, the WCJ issued her remand decision (Remand 

Decision), therein incorporating her June 26, 2014 findings of fact and making 

additional findings as to the credibility of testimony by Dr. Izzo, Dr. Freese, Dr. 

Kovalsky, Dr. McCarren and Dr. Kahanovitz. The WCJ again granted the 

Termination Petition because Employer met its burden of proving that Claimant was 

fully recovered from her work injury as of June 6, 2013, and denied Claimant 

litigation costs incurred for Dr. McCarren’s and Dr. Kahanovitz’s depositions. 

Claimant appealed to the Board which, on March 26, 2019, affirmed the WCJ’s 

decision. Claimant appealed to this Court.6 

Discussion

Initially,

[i]n a claim petition, the claimant has the burden of proving 

all elements necessary to support an award, including the 

 

6

“On review[,] this Court must determine whether constitutional rights were violated, errors 

of law were committed, or necessary findings of fact were supported by substantial competent 

evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d 598, 601 n.6 

(Pa. Cmwlth. 2014).

‘In performing a substantial evidence analysis, this [C]ourt must view 

the evidence in a light most favorable to the party who prevailed 

before the factfinder.’ ‘Moreover, we are to draw all reasonable 

inferences which are deducible from the evidence in support of the 

factfinder’s decision in favor of that prevailing party.’ It does not 

matter if there is evidence in the record supporting findings contrary 

to those made by the WCJ; the pertinent inquiry is whether the 

evidence supports the WCJ’s findings.

3D Trucking Co., Inc. v. Workers’ Comp. Appeal Bd. (Fine & Anthony Holdings Int’l), 921 A.2d 

1281, 1288 (Pa. Cmwlth. 2007) (citations omitted) (quoting Waldameer Park, Inc. v. Workers’ 

Comp. Appeal Bd. (Morrison), 819 A.2d 164, 168 (Pa. Cmwlth. 2003)).
5

burden to establish the duration of disability.

[7] A claimant 

establishes ongoing disability by the presentation of 

unequivocal medical evidence. When a claimant fails to 

present unequivocal testimony establishing ongoing 

disability after a certain date, benefits are properly 

terminated as of that date. 

Wagner v. Workers’ Comp. Appeal Bd. (O’Malley Wood Prods., Inc.), 805 A.2d 683, 

684-85 (Pa. Cmwlth. 2002) (citations omitted).

1. Benefits Pending Remand

Claimant contends that this Court’s August 21, 2017 decision vacating 

the Board’s decision upholding the WCJ’s grant of Employer’s Termination Petition 

entitled her to reinstated wage loss benefits from June 6, 2013 (Termination Petition 

effective date) to February 23, 2018 (Remand Decision date). See Claimant Br. at 2, 

17-18. Employer responds that this claim is groundless because this Court’s August 

21, 2017 order does not expressly award Claimant WC benefits in conjunction 

therewith, and Claimant waived the issue by failing to raise it in response to the

WCJ’s February 23, 2018 Remand Decision. See Employer Br. at 55 n.10. 

Subject to exceptions not applicable here, Pennsylvania Rule of 

Appellate Procedure (Rule) 1551(a) specifies that “[n]o question shall be heard or 

considered by the court which was not raised before the government unit[.]” 

Pa.R.A.P. 1551(a). Moreover, the waiver doctrine, which applies in WC 

proceedings, requires parties to raise issues at the earliest possible opportunity. See 

Rox Coal Co. v. Workers’ Comp. Appeal Bd. (Snizaski), 807 A.2d 906 (Pa. 2002). 

 

7

“Under [the WC Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-

1041.4, 2501-2710], the term ‘disability’ is synonymous with loss of earning power.” Donahay v. 

Workers’ Comp. Appeal Bd. (Skills of Cent. PA, Inc.), 109 A.3d 787, 792 (Pa. Cmwlth. 2015). 

Therefore, “[i]f the reduction in earnings is not tied to a loss of earning power attributable to the 

work injury, no disability benefits are due.” Id. at 793.
6

Here, Claimant did not raise the reinstated wage issue to the WCJ during

remand, nor in her March 7, 2018 appeal from the WCJ’s remand decision to the 

Board. Rather, she raised it for the first time in her April 23, 2019 appeal to this 

Court from the Board’s decision after remand, as follows: 

The [Board] failed to comprehend that the portion of the 

original [d]ecision GRANTING the claim petition was 

NOT [v]acated, so the award of benefits was ongoing as of 

the date the [t]ermination was [v]acated, and benefits 

should have been paid retroactive to the date [Employer] 

was (erroneously) awarded a termination of those benefits.

Petiton for Review at 3.

The law is well settled that “[r]emand orders are interlocutory and not 

appealable except by permission in accordance with [Section 702(b) of the Judicial 

Code,] 42 Pa.C.S. § 702(b) and [Rule] 1311 [(relating to interlocutory appeals by 

permission)].” Macaluso v. Workmen’s Comp. Appeal Bd. (Phila. Coll. of 

Osteopathic Med.), 597 A.2d 730, 731 (Pa. Cmwlth. 1991). Because the Schock I

opinion was interlocutory, the first opportunity for Claimant to raise the reinstatement 

issue was in response to the WCJ’s February 23, 2018 Remand Decision, but she did 

not. Since Claimant failed to first raise the reinstatement issue below, it is waived. 

Claimant’s attempt in her petition for review to bootstrap the issue as a Board error

(i.e., “The [Board] failed to comprehend”) does not salvage the waiver. Petition for 

Review at 3.

Notwithstanding, Claimant’s argument that this Court’s August 21, 2017 

remand order entitled her to reinstated benefits lacks merit. We acknowledge this 

Court’s rulings that “[a]n order of the Board vacating a [WCJ’s] order and remanding 

the case for further findings of fact has the effect of reinstating [an NCP] issued 

before the [WCJ’s] decision . . . .” Mason v. Workmen’s Comp. Appeal Bd. (Hilti 

Fastening Sys. Corp.), 657 A.2d 1020, 1024 (Pa. Cmwlth. 1995); see also Kurtz v. 
7

Allied Corp., 561 A.2d 1294, 1298 (Pa. Cmwlth. 1989) (“[T]he effect of an order of 

the Board vacating the [WCJ’s] decision and remanding the case to the [WCJ] for 

further findings is to reinstate the [NCP] prior to the [WCJ’s] decision.”). 

In the instant matter, however, the Schock I order specifically vacated 

the Board’s order and instructed the Board to return the matter to the WCJ to explain 

the objective bases for her credibility determinations underlying her termination 

decision. See Schock I, slip op. at 20-22, 25, Order. The Schock I Court did not 

vacate the WCJ’s order granting Employer’s Termination Petition. Because the 

WCJ’s June 26, 2014 order denying wage loss benefits after June 6, 2013 remained in 

effect, Claimant would not have been entitled to wage loss benefits pending remand.

2. Termination Petition

Claimant argues that the WCJ’s substantial evidence analysis on remand 

failed to address several of her claims. Claimant specifically asserts that the 

Termination Petition should have been denied based upon her credible testimony of 

ongoing, worsening pain; and, since the WCJ’s February 23, 2018 credibility 

determinations were logically inconsistent with Claimant’s credible testimony, the 

WCJ did not issue a reasoned decision. Employer asserts that Claimant’s argument is 

nothing more than “a camouflaged expression of dissatisfaction with the credibility 

assessments made by the ultimate factfinder.” Employer Br. at 19.

Preliminarily, the law is well established that “[t]he WCJ is the ultimate 

factfinder and has exclusive province over questions of credibility and evidentiary 

weight.” Univ. of Pa. v. Workers’ Comp. Appeal Bd. (Hicks), 16 A.3d 1225, 1229 n.8 

(Pa. Cmwlth. 2011). Moreover, “[t]o 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 

Cty. v. Workers’ Comp. Appeal Bd. (Fuller), 942 A.2d 213, 217 (Pa. Cmwlth. 2008). 
8

The burden is substantial since disability is presumed to continue unless and until 

proven otherwise. Giant Eagle, Inc. v. Workmen’s Comp. Appeal Bd. (Chambers), 

635 A.2d 1123 (Pa. Cmwlth. 1993).

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. If the WCJ credits this testimony, the termination of 

benefits is proper.

Udvari v. Workmen’s Comp. Appeal Bd. (USAir, Inc.), 705 A.2d 1290, 1293 (Pa. 

1997) (footnote omitted); see also Elberson v. Workers’ Comp. Appeal Bd. (Elwyn, 

Inc.), 936 A.2d 1195 (Pa. Cmwlth. 2007).

“The determination of whether a claimant’s subjective complaints of 

pain are accepted is a question of fact for the WCJ.” Udvari, 705 A.2d at 1293. The 

Schock I Court summarized:

Claimant testified in person and by deposition. Claimant 

stated that she started working for Employer in August 

2011 and had no problems with her back before that 

date.[FN2] Her job duties as a deli clerk included slicing deli 

meat and cheeses and preparing deli products. She lifted up 

to 50 pounds and stood six to eight hours a day. She earned 

$8.00 per hour, or $300[.00] per week before taxes.

Claimant testified that the April 30, 2012, work incident 

caused pain in her lower back that ‘[s]hoots down into [her] 

left leg, into [her] left foot and then [she] also ha[s] pain 

down the right, in the back until about [her] ankle.’ 

Claimant did light-duty work for Employer from April 30, 

2012, until July 16, 2012. Thereafter, she worked as a 

greeter for four hours a day, from August 20, 2012, through 

August 27, 2012; from October 10, 2012, until October 18, 

2012; and from November 27, 2012, until December 3,

2012. As a greeter, Claimant sat at the front door and 

handed out circulars. Claimant has not returned to work 
9

since December 3, 2012, because the pain in her back and 

leg ‘became unbearable.’

Claimant testified that she was first treated at [Concentra 

Occupational Medicine (]Concentra[)] and then transferred 

to Rothman Institute, which administered an epidural 

injection that only worsened her pain. [The] Rothman 

Institute referred Claimant to Dr. [] Izzo, who did a 

functional capacity evaluation, followed by an 

electromyogram (EMG) on November 26, 2012. In the 

meantime, on November 16, 2012, Employer issued a

Notice of Ability to Return to Work to Claimant, based on 

an IME done by Dr. [] Kovalsky. On June 11, 2013, 

Claimant underwent a back surgery performed by Dr. []

Freese; until then, she testified, her pain has ‘progressively 

gotten worse.’

[FN2] Claimant acknowledged sustaining a back 

injury in 1999, from which she fully recovered.

Schock I, slip op. at 2-3 (internal record citations omitted).

In the June 26, 2014 decision, the WCJ made the following finding of 

fact (FOF) regarding Claimant’s testimony: 

This [WCJ] had the opportunity to observe Claimant during 

her testimony and finds her credible based on her demeanor. 

Her testimony is credible that on April 30, 2012 she slipped 

and fell and injured her lower back. Her testimony is 

credible that she attempted to return to light-duty work on 

four occasions and last worked on December 3, 2012, at 

which point she did not continue to work because of her 

symptoms. Her testimony is credible that she had a prior 

back injury for which she received treatment, but she was 

not treating for back pain at the time of her work injury.

WCJ 6/26/14 Dec. at 9 (FOF 15). Contrary to Claimant’s argument on appeal, the 

WCJ did not find that all of Claimant’s ongoing pain complaints are attributable to 

her work injury.

According to the record, Claimant’s medical witness, physiatrist Dr. 

Izzo, first saw Claimant on October 16, 2012 for purposes of conducting a Functional 
10

Capacity Evaluation (FCE). He reviewed her records and found Claimant’s May 30 

and August 6, 2012 MRI studies showed desiccation, bulging and circumferential 

annular tearing at L4-5 and L5-S1. On November 26, 2012, Dr. Izzo conducted an 

EMG/Nerve Conduction Study that revealed Claimant also had bilateral lumbar 

radiculopathy. Dr. Izzo attributed all of Claimant’s conditions to her April 30, 2012 

work injury. Although Dr. Izzo originally opined that Claimant could work in a 

sedentary capacity, after Claimant complained of increasing neck and back pain 

resulting from her sedentary job, he placed Claimant on disability effective December 

3, 2012. 

Claimant also presented the testimony of neurosurgeon Dr. Freese, who 

examined Claimant in April 2013. Dr. Freese reviewed Claimant’s April 4, 2013 

MRI that reflected Claimant’s annular tear and protrusion and desiccation at L4-5. 

Dr. Freese recalled that a May 14, 2013 discogram revealed pain at L3-4 and L5-S1. 

On June 11, 2013, Dr. Freese performed lumbar laminectomies, facetectomies, 

discectomies and a fusion at L4-5 and L5-S1. He opined that Claimant’s complaints 

and surgery were directly related to her April 30, 2012 work injury. Dr. Freese

declared that Claimant was incapable of returning to work as of April 5, 2013 due to 

discogenic pain combined with radiculopathy. 

Employer’s medical witness, orthopedic surgeon Dr. Kovalsky,

conducted an IME of Claimant on October 12, 2012. He testified that Dr. Izzo’s FCE 

was not a true FCE because it lacked consistency and validity testing. Dr. Kovalsky 

also stated that the EMG data was insufficient to support a lumbar radiculopathy 

diagnosis. He noted that Claimant’s May and August 2012 MRIs revealed no disc 

herniation. He observed that Claimant’s May 2, 2012 examination at Concentra by 

Eric Solomon, M.D. (Dr. Solomon) showed no evidence of objective abnormalities 

other than thigh and lumbar contusions, and that her August 13, 2012 examination 

and testing by Jeremy I. Simon, M.D. (Dr. Simon) at the Rothman Institute revealed 
11

no abnormalities or radiculopathy. Dr. Kovalsky declared that Claimant presented no 

clinical evidence of neurologic deficit or radiculopathy during his October 12, 2012 

examination. He recounted that Claimant attempted to magnify her symptoms. Dr. 

Kovalsky opined that Claimant had not fully recovered from her work injury as of 

that date, but felt she was capable of performing light-duty work.

Employer’s medical witness, orthopedic surgeon Dr. Kahanovitz,

examined Claimant on June 6, 2013. Dr. Kahanovitz observed that Claimant’s May 

and August 2012 MRIs revealed degenerative changes at L4-5 and L5-S1 without 

evidence of any nerve root or neurologic compression, and declared that the disc 

herniations in the April 2013 MRI did not evolve from the earlier MRIs. He testified 

that Claimant demonstrated no evidence of neurologic deficit or lumbar radiculopathy 

during his examination, but she did magnify her symptoms. Dr. Kahanovitz declared 

that Dr. Freese’s surgery was not related to her work injury. Dr. Kahanovitz 

concluded that Claimant sustained a lumbar strain as a result of her April 30, 2012 

work injury, but that she fully recovered therefrom as of the date of his examination. 

Employer’s medical witness, neurologist Dr. McCarren, who is certified 

in performing and interpreting EMG and nerve conduction studies, explained how 

they should be performed. He reviewed Claimant’s November 26, 2012 EMG/Nerve 

Conduction Study and declared it incomplete because it did not demonstrate the 

normal activities used when conducting such a test and it resulted in erroneous 

conclusions. He also stated that it was unreliable because there was insufficient data 

to warrant a lumbar radiculopathy diagnosis and attendant surgery.

“The WCJ . . . is free to accept or reject, in whole or in part, the 

testimony of any witness, including medical witnesses.” Griffiths v. Workers’ Comp. 

Appeal Bd. (Red Lobster), 760 A.2d 72, 76 (Pa. Cmwlth. 2000). Accordingly, 
12

“Section 422(a) [of the WC Act (Act), 77 P.S. § 834,8] does not permit a party to 

challenge or second-guess the WCJ’s reasons for credibility determinations. [Thus, 

u]nless made arbitrarily or capriciously, a WCJ’s credibility determinations will be 

upheld on appeal.”

9

 Pa. Uninsured Emp’rs Guar. Fund v. Workers’ Comp. Appeal 

Bd. (Lyle), 91 A.3d 297, 303 (Pa. Cmwlth. 2014) (quoting Dorsey v. Workers’ Comp. 

Appeal Bd. (Crossing Constr. Co.), 893 A.2d 191, 195 (Pa. Cmwlth. 2006)). This 

Court has explained:

To constitute a reasoned decision within the 

meaning of Section 422(a) [of the Act], a WCJ’s

decision must permit adequate appellate review. 

Where medical experts testify by deposition, a 

WCJ’s resolution of conflicting evidence must be 

supported by more than a statement that one expert 

is deemed more credible than another. Some 

articulation of the actual objective basis for the 

 

8 Section 422(a) of the Act specifies:

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 decisions 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, the [WCJ] must adequately 

explain the reasons for rejecting or discrediting competent 

evidence. Uncontroverted evidence may not be rejected for 

no reason or for an irrational reason; the [WCJ] must identify 

that evidence and explain adequately the reasons for its 

rejection. The adjudication shall provide the basis for 

meaningful appellate review.

77 P.S. § 834.

9 Capricious disregard “occurs only when the fact-finder deliberately ignores relevant, 

competent evidence.” Williams v. Workers’ Comp. Appeal Bd. (USX Corp.-Fairless Works), 862 

A.2d 137, 145 (Pa. Cmwlth. 2004). Capricious disregard, by definition, does not exist where, as 

here, the WCJ expressly considered and rejected the evidence. Williams.
13

credibility determination must be offered for the 

decision to be a ‘reasoned’ one which facilitates 

effective appellate review.

There are countless objective factors which may 

support a WCJ’s credibility determinations. These 

factors must be identified and articulated.

Verizon Pa. Inc. v. Workers’ Comp. Appeal Bd. (Mills), 116 A.3d 1157, 1162 n.3 (Pa.

Cmwlth. 2015) (quoting Dorsey, 893 A.2d at 194-95 (citations, internal quotations, 

and brackets omitted)).

Here, on remand, the WCJ found Dr. Izzo’s testimony regarding 

Claimant’s examination dates and Claimant’s FCE credible. See WCJ Remand Dec. 

at 4 (FOF 8). The WCJ did not deem credible Dr. Izzo’s various diagnoses or his 

opinion that Claimant’s ongoing complaints of lumbar radiculopathy are the direct 

result of her April 30, 2012 work injury because

Claimant told Dr. Izzo she had recovered from [a] back 

injury she sustained in 2000; Dr. Izzo reviewed no records 

referable to the 2000 low back injury; Dr. Izzo reviewed no 

records from Concentra; Dr. Izzo agreed the May and 

August 2012 MRI studies did not reveal evidence of disc 

herniation; and upon physical examination, Dr. Izzo found 

no evidence of abnormal sensation in the lower extremities, 

no evidence of abnormal reflexes in the lower extremities, 

no evidence of an antalgic gait, and no evidence of atrophy 

in the lower extremities.

WCJ Remand Dec. at 4 (FOF 8).

The WCJ found credible Dr. Freese’s testimony that he evaluated 

Claimant on April 5, 2013, reviewed her April 4, 2013 MRI and performed 

Claimant’s June 11, 2013 surgery. The WCJ concluded that Dr. Freese’s testimony 

was otherwise not credible. Specifically, 

[h]is testimony is not credible that his diagnosis of

significant disc injuries to L4-5 and L5-S1 with annular 

tears and progressive disc protrusions causing a

combination of discogenic pain as well as radiculopathy and 
14

the surgery he performed are related to the work injury. In 

so finding, this [WCJ] finds it significant that Dr. Freese 

only reviewed the April 4, 2013 MRI prior to the surgery 

and did not review additional medical records until he 

prepared for his deposition; he reviewed no records relative 

to Claimant’s 2000 back injury; Claimant has a history of 

smoking and he agreed smoking is associated with disc

desiccation; he agreed the 2012 MRIs showed no evidence 

of disc herniations; he did not identify any abnormal 

reflexes or evidence of atrophy in the lower extremities 

upon his physical examination; and he testified that the

comprehensive review of the medical records are consistent 

with the findings he made, but when asked about medical 

records that documented findings that were inconsistent 

with his examination, he testified that records documenting

inconsistencies would not be relevant.

WCJ Remand Dec. at 4-5 (FOF 9).

The WCJ found all of Dr. Kovalsky’s testimony credible, explaining:

His testimony is credible that he did not find evidence of 

any residual lumbosacral sprain and strain or contusion, and 

Claimant was capable of performing a light[-]duty position 

as of the date of his examination. His testimony is credible 

that Claimant had not fully recovered from the April 30, 

2012 work injury as of the time of his examination. In 

finding the testimony of Dr. Kovalsky credible, this [WCJ]

finds it significant that . . . his examination was essentially

benign and did not reveal any clinical evidence of 

neurologic deficit or lumbar radiculopathy; . . . his clinical 

findings were consistent with the findings of Dr. Solomon 

at Concentra and Dr. Simon, both of whom found no 

evidence of neurologic deficit or lumbar radiculopathy; his 

clinical findings were consistent with the results of the May

and August 2012 lumbar MRI studies which revealed no 

evidence of disc herniation; and his diagnosis was 

supported by the testimony of Dr. McCarren who opined 

the EMG data is insufficient to support a diagnosis of 

lumbar radiculopathy.

WCJ Remand Dec. at 5 (FOF 10).

The WCJ also found all of Dr. Kahanovitz’s testimony credible, stating:
15

In finding his testimony credible, this [WCJ] notes that Dr. 

Kahanovitz . . . has performed procedures similar to the one 

that Dr. Freese performed on Claimant; his clinical findings 

revealed no evidence of neurologic deficit or lumbar 

radiculopathy; his inability to detect clinical evidence of 

neurologic deficit and lumbar radiculopathy is consistent 

with and corroborated by the examination findings reported 

months earlier by Dr. Kovalsky; his physical examination 

findings were consistent with the clinical findings reported 

by Dr. Solomon and Dr. Simon, both of whom examined 

Claimant soon after her work injury; the May and August 

2012 lumbar MRIs revealed no evidence of lumbar disc 

herniation; he found evidence of symptom magnification 

consistent with that identified by Dr. Kovalsky during his

October 12, 2012 examination; he credibly explained that 

Claimant’s 2012 MRI findings are consistent with 

degenerative changes and do not reveal evidence of nerve 

root involvement; and he credibly explained why the 

findings on the April 2013 MRI study would not be related 

to the work injury.

WCJ Remand Dec. at 5-6 (FOF 11).

In addition, the WCJ found all of Dr. McCarren’s testimony credible, 

adding:

In finding the opinion of Dr. McCarren credible, this [WCJ]

notes . . . he offered a thorough explanation of how and why 

the [November 26, 2012] EMG study was incomplete and 

did not support a diagnosis of lumbar radiculopathy; and his 

conclusion that the study did not support a diagnosis of 

radiculopathy is consistent with the clinical examinations of 

Dr. Kovalsky and Dr. Kahanovitz, both of whom found no

evidence of lumbar radiculopathy.

WCJ Remand Dec. at 6 (FOF 12).

The WCJ further found:

13. The testimony of Dr. Kahanovitz is accepted over the 

contrary testimony of Dr. Freese for several reasons. 

Claimant told Dr. Freese she was pain free prior to the work 

injury, whereas Dr. Kahanovitz noted that the July 24, 2012 

report of [another physician] specified that Claimant had a 
16

history of chronic low back pain. Dr. Freese testified that 

Claimant’s clinical examinations had been consistent since 

the injury and were consistent with his examination, yet 

when confronted with evidence to the contrary he testified 

that such inconsistencies were irrelevant. The testimony of 

Dr. Freese that the condition of Claimant’s lumbar spine 

progressed over time is contradicted by the fact that the 

August 6, 2012 MRI findings were similar to the May 2012 

study. Dr. Freese only reviewed the April 2013 MRI at the 

time of his initial examination of Claimant, and did not 

review additional medical records until he was preparing for 

his deposition. The testimony of Dr. Kahanovitz is

consistent with the credible testimony of Dr. McCarren that 

the EMG study includes insufficient data to support a 

lumbar radiculopathy.

14. The testimony of Dr. Kovalsky and the testimony of Dr. 

McCarren is accepted over the testimony of Dr. Izzo 

regarding the nature of Claimant’s injury. Dr. Kovalsky is a 

board certified orthopedic surgeon whereas Dr. Izzo is a 

physiatrist. Dr. Izzo agreed the May and August 2012 MRI 

studies did not reveal evidence of a disc herniation. Dr. 

Izzo agreed that the examinations performed by [Claimant’s 

doctors after the work accident] found no evidence of nerve 

root involvement or lumbar radiculopathy. Dr. Izzo agreed 

he found no evidence of abnormal sensation, no evidence of 

abnormal reflexes, no evidence of an antalgic gait, and no 

atrophy on physical examination. Dr. McCarren’s analysis 

and conclusions relative to the EMG study are consistent 

with Dr. Kovalsky’s physical examination findings and

conclusions.

WCJ Remand Dec. at 6-7 (FOFs 13-14).

Neither the Board nor this Court may reweigh the evidence or the WCJ’s 

credibility determinations. Sell v. Workers’ Comp. Appeal Bd. (LNP Eng’g), 771 

A.2d 1246 (Pa. 2001). On remand, the WCJ summarized all of the medical testimony 

and adequately explained her credibility determinations. Based upon its review of the 

record evidence and, with the WCJ’s role as factfinder in mind, the Board upheld the 

WCJ’s findings. 
17

Because this Court may not reweigh the evidence or the WCJ’s 

credibility determinations, and must view the evidence in a light most favorable to 

Employer, after a thorough review of the record, we hold that the Board properly 

concluded that the WCJ issued a reasoned decision, upheld the WCJ’s credibility 

determinations on remand, and affirmed the WCJ’s grant of Employer’s Termination 

Petition.

3. Litigation Costs

Claimant also argues that the Board erred by affirming the WCJ’s 

decision denying Claimant reimbursement for Dr. McCarren’s and Dr. Kahanovitz’s 

depositions. She specifically asserts that the issue of litigation cost reimbursement 

should be determined based upon all evidence used relative to the issue on which she 

prevailed, and not just the evidence found credible in relation to that issue. 

Section 440(a) of the Act10 provides, in relevant part:

In any contested case where the insurer has contested 

liability in whole or in part, including contested cases 

involving petitions to terminate, . . . the employe . . . in 

whose favor the matter at issue has been finally determined 

in whole or in part shall be awarded, in addition to the 

award for compensation, a reasonable sum for costs 

incurred for attorney’s fee, witnesses, necessary medical 

examination, and the value of unreimbursed lost time to 

attend the proceedings[.]

77 P.S. § 996(a). Moreover, Section 422(a) of the Act requires that “all findings of 

fact shall be based upon sufficient competent evidence to justify same.” 77 P.S. § 

834. The WCJ cannot disregard competent evidence without a reasonable 

explanation or without specifically discrediting it. 

 

10 Added by Section 3 of the Act of February 8, 1972, P.L. 25.
18

Here, Employer accepted that Claimant sustained a work-related lumbar 

strain on April 30, 2012. In her claim petition, Claimant sought partial disability 

benefits from April 30, 2012 to July 16, 2012, and total disability benefits thereafter. 

Claimant prevailed on her claim petition for periods that she was disabled due to her 

work injury between April 30, 2012 and June 6, 2013. Claimant did not succeed in 

proving that the neurological deficit or bilateral lumbar radiculopathy her doctors 

claimed prevented her from working after June 6, 2013 were related to her April 30, 

2012 work injury. Accordingly, the WCJ denied that Claimant’s work-related 

disability continued after June 6, 2013.

The Schock I Court summarized:

As to Dr. McCarren’s deposition, the WCJ found it ‘did not 

negate the fact that [Claimant] injured her low back on 

April 30, 2012[,] nor did it negate the fact that she was 

entitled to [WC] benefits for various periods of time in 2012 

and 2013.’ WCJ Decision, 10/21/2015, at 4; [FOF] 8. The 

WCJ further found ‘[Dr. Kahanovitz’s] testimony 

confirmed that Claimant sustained a work-related injury in 

April of 2012 in the nature of a lumbar strain, thereby 

supporting Claimant’s [c]laim [p]etition in part.’ WCJ 

Decision, 10/21/2015, at 5; [FOF] 9.

Schock I, slip op. at 14. The Schock I Court agreed with the Board that Claimant was 

not entitled to reimbursement for Dr. McCarren’s deposition costs because that 

deposition was not related to the parts of the claim petition upon which Claimant 

prevailed. See Schock I. This Court further concurred that Claimant was not entitled 

to be reimbursed for Dr. Kahanovitz’s deposition costs because his testimony 

confirmed Claimant’s accepted work injury, which was not contested. See id. 

Notably, the Schock I Court only vacated the Board’s decision reversing the WCJ’s 

reimbursement cost award for those depositions because, if the WCJ was to change 
19

her decision and deny the Termination Petition on remand,11 Claimant could be 

entitled to such costs.

On remand, the WCJ again granted the Termination Petition but, this 

time, declined to award Claimant costs related to Dr. McCarren’s and Dr. 

Kahanovitz’s depositions, “[d]ue to the granting of the Termination Petition[.]” WCJ 

Remand Dec. at 7. The WCJ deemed credible Dr. McCarren’s and Dr. Kahanovitz’s 

testimony that Claimant did not suffer from lumbar radiculopathy related to her work 

injury that resulted in her disability after June 6, 2013. Neither Dr. McCarren nor Dr. 

Kahanovitz refuted the claims on which Claimant prevailed – that Claimant suffered 

a work-related lumbar strain on April 30, 2012 that led to various periods of disability 

through June 6, 2013. Accordingly, this Court adopts the Schock I Court’s reasoning 

and likewise concludes that the Board properly upheld the WCJ’s conclusion that 

Claimant is not entitled to costs related to Dr. McCarren’s and Dr. Kahanovitz’s 

depositions. 

Based upon the foregoing, the Board’s order is affirmed.

___________________________

ANNE E. COVEY, Judge

 

11 The Schock I Court was cognizant that, on remand to explain the rationale for her 

credibility determinations, the WCJ was not precluded from reversing her original decision. See 

Reinert v. Workers’ Comp. Appeal Bd. (Stroh Cos.), 816 A.2d 403 (Pa. Cmwlth. 2003). 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sarah Schock, :

Petitioner :

:

v. :

:

Workers’ Compensation Appeal :

Board (Brown’s Super Stores t/a :

Shop-Rite), : No. 478 C.D. 2019

Respondent :

O R D E R

AND NOW, this 12th day of December, 2019, the Workers’ 

Compensation Appeal Board’s March 26, 2019 order is affirmed.

___________________________

ANNE E. COVEY, Judge