M. Gilbert v. WCAB (Drug Emporium), M. Gilbert v. WCAB (Drug Emporium)

In 1996 Gilbert (Claimant) sustained work-related neck, right shoulder/arm injuries; WCJ later expanded accepted injuries to include cervical disc herniations, chronic neck/myofascial pain, radiculopathy, and right shoulder syndrome.
Employer filed a petition to terminate benefits in October 2013 alleging full recovery as of June 19, 2013; Claimant denied the allegation.
Claimant testified to ongoing severe pain, functional limitations, prior shoulder surgery (2011), and ongoing primary care with Dr. Doug Kimmel since 1997; Dr. Kimmel opined Claimant is permanently disabled but admitted he had not actively treated her work injury (beyond prescribing anti-inflammatories) or provided injections/physical therapy in years.
Employer presented IME testimony from board-certified orthopedist Dr. Noubar Didizian, who examined Claimant on June 19, 2013, found no objective evidence of continuing neck, shoulder, or carpal tunnel problems, and concluded Claimant had fully recovered and required no further treatment.
The WCJ credited Dr. Didizian’s testimony, rejected Claimant and Dr. Kimmel as less credible, and granted Employer’s termination petition; the Board affirmed.
On appeal to this Court Gilbert raised an argument that Employer failed to show changed condition since the last adjudication, but that issue was not raised before the Board and thus was waived; the Court limited review to preserved credibility challenge and affirmed the Board.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Employer proved Claimant fully recovered so benefits could be terminated	Gilbert argued medical evidence did not establish full recovery from all accepted injuries since prior proceedings (and WCJ erred favoring IME over treating physician)	Employer relied on Dr. Didizian’s IME concluding full recovery and no further treatment needed	Court affirmed termination — but declined to consider the full-recovery-vs-change-in-condition argument because it was not raised before the Board; upheld WCJ credibility finding favoring Dr. Didizian over Dr. Kimmel
Whether WCJ improperly discredited treating physician	Gilbert argued Dr. Kimmel’s long treatment history made him more credible than a single IME examiner	Employer noted Dr. Kimmel admitted he was not actively treating the work injury and had limited recent objective documentation	Court held WCJ properly weighed credibility and permissibly rejected Dr. Kimmel given his admissions and Dr. Didizian’s thorough IME; credibility determinations supported by substantial evidence

McGaffin v. Workers’ Compensation Appeal Board (Manatron, Inc.), 903 A.2d 94 (Pa. Cmwlth. 2006) (issue preservation rule; issues not raised before agency are waived on appeal)
Sherrod v. Workmen’s Compensation Appeal Board (Thoroughgood, Inc.), 666 A.2d 383 (Pa. Cmwlth. 1995) (appellate deference to WCJ on credibility and evidentiary weight)
Ward v. Workers’ Compensation Appeal Board (City of Philadelphia), 966 A.2d 1159 (Pa. Cmwlth. 2009) (scope of review of Board decisions includes legal error, constitutional violation, and substantial-evidence assessment)