A. Touchstone, c/o T. Touchstone v. WCAB (Touchstone and Assoc., P.C.) ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Andrew Touchstone, c/o Teri :
Touchstone, :
Petitioners :
:
v. : No. 1336 C.D. 2018
: Submitted: March 15, 2019
Workers’ Compensation Appeal Board :
(Touchstone and Associates, P.C.), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: July 29, 2019
Teri Touchstone (Claimant) petitions for review of an Order of the Workers’
Compensation Appeal Board (Board) that affirmed the decision of a Workers’
Compensation Judge (WCJ) to deny the Fatal Claim Petition she filed on behalf of
her husband Andrew Touchstone (Decedent). Claimant alleged Decedent suffered
a fatal heart attack and that psychosocial stress related to his work as a workers’
compensation attorney representing claimants, namely significant financial strain,
was a substantial, contributing factor in his death. The WCJ denied the Fatal Claim
Petition finding Claimant did not establish psychosocial stress was a substantial,
contributing factor in Decedent’s cardiac arrest. For the reasons that follow, we
affirm.
I. BACKGROUND
On December 16, 2015, Claimant filed the Fatal Claim Petition, wherein she
alleged Decedent suffered an acute myocardial infarction resulting in sudden cardiac
arrest on October 21, 2014. Touchstone & Associates P.C. (Employer) filed a timely
answer denying all the material allegations. The matter was assigned to a WCJ, who
held numerous hearings.
A. The Testimony
Claimant testified in support of the Fatal Claim Petition as follows.1 Claimant
and Decedent married in 1991 and have three children, all of whom are in college or
graduate school. Claimant started his own practice in 2005 and subsequently hired
an associate attorney, Michael Bauerle. Decedent went to the gym at least four or
five times a week, hunted and trained dogs, did yardwork, and was active in his
community. He began treating for anxiety shortly after the birth of the couple’s first
daughter and was taking medication for it. He was also taking medication to control
his high blood pressure. Several years ago, he underwent a heart ablation procedure,
but was not under the care of a cardiologist for any extended period. Decedent
smoked half a pack of cigarettes or less per day since high school. Because Decedent
handled his own personal records, Claimant does not know if Decedent treated with
anyone other than his family physician, whom he saw a handful of times, or if he
complained about the amount of stress.
According to Claimant, Decedent typically left home by 9 a.m. and returned
at rush hour. After having dinner or a snack with his family, Decedent would go to
the gym until 10 p.m. From there, he would go to his office until 1 a.m. or 2 a.m.
1
Claimant’s testimony is summarized by the WCJ in Finding of Fact No. 1. Her testimony
also appears in the Reproduced Record at pages 9a-89a.
2
Claimant described occasions where Decedent returned home midday to lay down
and returned to work after regrouping. On October 20, 2014, Claimant was in bed
when Decedent returned home around 1 a.m. Claimant accidently locked Decedent
out of the house, so she opened the door for him. They kissed, exchanged
affectionate terms, and watched television in the bedroom. Decedent told Claimant
he was going to work in the home office, and Claimant fell asleep. At approximately
5:20 a.m., Claimant was awoken by their dog. That is when she found Decedent on
the floor.
Because Claimant is responsible for the household bills, she knew they were
having a tough year, compared to 2013 and 2012. When Claimant asked for money
to pay the bills, Decedent asked Claimant what was the least amount required.
Claimant noticed Decedent was more stressed, overburdened, tense, and anxious in
the year preceding his death. After her husband’s death, Claimant was closing up
the firm with an accountant when she found a number of unpaid bills, some of which
were months overdue. Claimant did not work for the firm. Decedent ran the office
by himself and did not share information about the firm with Claimant. Claimant
had no knowledge about how many active cases Decedent had or how many were
transferred to Attorney Jeffrey Gross upon Decedent’s death.
Attorney Marc Vitale also testified before the WCJ on Claimant’s behalf.2
Attorney Vitale met Decedent in the mid-1990s, after which they became social
acquaintances. Decedent also rented office space from Attorney Vitale. As a result,
Attorney Vitale knew Decedent worked long hours, even staying at the office
overnight sometimes. Beginning in early 2014, Attorney Vitale noticed a change in
Decedent’s personality and demeanor. While Decedent was normally gregarious
2
Attorney Vitale’s testimony is summarized by the WCJ in Finding of Fact No. 2. His
testimony also appears in the Reproduced Record at pages 100a-28a.
3
and friendly, he became very short-tempered and angry. Additionally, “[h]e would
grouse about what was happening with his cases and the profession.” (WCJ Finding
of Fact (FOF) ¶ 2.c.) Attorney Vitale observed Decedent with his shoulders down
and avoiding eye contact. He had not observed Decedent being stressed prior to the
last six months before he died. Decedent obtained a new source of referrals for
cases, but they were costly to fund and having to advance costs was normal.
Decedent paid rent late in 2014, but Attorney Vitale could not recall if he was ever
late paying rent in prior years. Decedent was also late paying Attorney Vitale a fee
they shared on a case. But, Attorney Vitale was not sure if Decedent received the
fee, if all the bills that were submitted were paid, or if the case was appealed.
Attorney Gross, who assumed Decedent’s cases upon his death, also testified
before the WCJ as follows.3 Attorney Gross met Decedent long ago as opposing
counsel and they became friends. When Decedent was considering starting his own
practice, he approached Attorney Gross to discuss what was involved in representing
claimants, as compared to defendants. Attorney Gross advised Decedent of what to
expect economically, politically, socially, and in terms of time. He also knew
Decedent was concerned and stressed about the state of workers’ compensation,
including court decisions becoming more conservative and legislative changes. He
was approached by Attorney Bauerle after Decedent’s passing about what would
happen to the practice. Attorney Gross assumed responsibility for 100 of Decedent’s
cases and hired Attorney Bauerle and Decedent’s administrative assistant. Many of
the files he assumed had little work performed on them, which required a number of
extension requests for medical depositions.
3
Attorney Gross’s testimony is summarized by the WCJ in Finding of Fact No. 3. His
testimony also appears in the Reproduced Record at pages 129a-52a.
4
Attorney Bauerle, Decedent’s associate, testified before the WCJ on
Claimant’s behalf as follows.4 He knew Decedent for more than 20 years but did
not join Decedent’s firm until 2009. In addition to handling cases, Attorney Bauerle
assisted with marketing and developing the firm’s website. Upon learning of
Decedent’s death, Attorney Bauerle made a spreadsheet of the 100 cases for which
Attorney Gross eventually assumed control. Decedent and Attorney Bauerle
maintained their own caseload. The year before Decedent died, 2013, was a very
good year for the firm. A union started referring cases to the firm in 2014. However,
because of the procedural posture of the cases, immediate outlay of capital was
required. In 2014, Attorney “Bauerle noticed a gradual change in Decedent’s
demeanor.” (FOF ¶ 4.d.) Specifically, he noticed Decedent was more concerned
about getting money for a case, asking within one week of settlement whether the
funds had been received. Previously, Decedent was “very affable, good hearted, and
a kind individual,” not “upset, histrionic, or perturbed.” (Id.) Because he had not
seen the firm’s books, Attorney Bauerle did not have direct knowledge of a cash
flow issue. The fee structure under which he was paid “collapsed” in 2014 when he
was paid his base salary but not certain fees that were owed. (Id. ¶ 4.e.) Decedent
at times asked Attorney Bauerle to obtain additional time from WCJs to obtain
depositions.
In support of the Fatal Claim Petition, Claimant also presented the deposition
testimony of Nicholas DePace, M.D., who testified as follows.5 Decedent was found
at home on the floor and was 51 years old when he died. He last treated with his
4
Attorney Bauerle’s testimony is summarized by the WCJ in Finding of Fact No. 4. His
testimony also appears in the Reproduced Record at pages 153a-76a.
5
Dr. DePace’s testimony is summarized by the WCJ in Finding of Fact No. 5. His
testimony also appears in the Reproduced Record at pages 183a-225a.
5
family physician on April 18, 2014. Review of records from his family physician
indicated that Decedent treated for chronic hypertension and was prescribed blood
pressure medication. The records also reflected Decedent treated for anxiety for
several years and underwent a “supraventricular tachycardia albated [sic] with an
electrophysiology procedure” in the 1990s. (FOF ¶ 5.d.) Decedent had a family
history of coronary artery disease, had smoked for many years, and had high
cholesterol and hyperlipidemia. Because Decedent’s medical records were
incomplete, Dr. DePace did not know if Decedent took the prescribed statin or if the
statin was effective. He reviewed an affidavit from Attorney Bauerle, which
described Decedent’s work life and changes to behavior before his death. “Dr.
DePace understood that Decedent exercised almost daily, was physically fit and not
sedentary, was somewhat of a workaholic and put in an inordinate amount of time
at the office, hours late at home, and had very little sleep time.” (Id. ¶ 5.b.) In the
last several months prior to his death, Decedent experienced significant stress due to
work, deadlines, and court decisions. His behavior changed. Specifically, he was
more angry and irritable. This “anxiety, urgency, agitation, and anger” was a type
of psychosocial stress that Dr. DePace attributed to Decedent’s work. (Id. ¶ 5.c.)
Dr. DePace further testified that he believed Decedent was stressed about money but
saw no indication that insurance carriers were not timely paying claims. Sudden
cardiac death, especially in males, Dr. DePace explained, occurs within a short
amount of time and is usually arrhythmic based, and arrhythmia is “almost always”
caused by coronary artery disease. Smoking, high lipid values, being overweight,
possibly genetics, and psychosocial stress were risk factors for coronary artery
disease that Decedent possessed. According to Dr. DePace, a major risk factor for
heart attacks was a high level of psychosocial stress. Dr. DePace did not believe that
6
sleep apnea was a possible cause of Decedent’s death because people suffering from
sleep apnea could not work 12-plus hours, like Decedent did. Rather, Decedent
would be falling asleep often and unable to maintain his schedule. Moreover, people
who die from sleep apnea are usually more overweight than Decedent. Furthermore,
Decedent did not die in bed, so Dr. DePace did not believe sleep apnea was a cause
of his death. Dr. DePace opined that Decedent’s work was a substantial contributing
factor in his death based upon the testimony of Claimant, Attorney Vitale, and
Attorney Bauerle, as well as two medical records received from Decedent’s family
physician. He further opined that there is a temporal relationship between
Decedent’s death and a trigger, such as anger, which doubles the risk of sudden
cardiac arrest when occurring within two hours of irregular arrhythmia.
In opposition to the Fatal Claim Petition, Employer presented the deposition
testimony of Craig Frankil, M.D., who testified as follows.6 A review of Decedent’s
medical records revealed Decedent had a supraventricular tachycardia, which was
treated successfully in 1991, chronic hypertension, and dyslipidemia. Decedent also
smoked and was overweight. Decedent regularly worked out, but Dr. Frankil did
not know what those workouts involved. Decedent’s cholesterol was 239, and his
triglycerides and LDL cholesterol were high. In reviewing the records, Dr. Frankil
saw no evidence that Decedent’s blood pressure was ever “optimal.” (FOF ¶ 6.b.)
Based upon Claimant’s description of Decedent’s breathing, Dr. Frankil believed
this was evidence of apneic episodes, which was also reflected in the medical records
as a concern of Decedent’s family physician.
Decedent’s death certificate, completed by Decedent’s family physician, lists
as causes of death: “1) cardiopulmonary arrest, 2) myocardial infarction, and 3)
6
Dr. Frankil’s testimony is summarized by the WCJ in Finding of Fact No. 6. His
testimony also appears in the Reproduced Record at pages 283a-341a.
7
atherosclerotic cardiovascular disease.” (Id. ¶ 6.a.) Dr. Frankil, however, does not
believe cardiopulmonary arrest is a proper cause of death because it is a terminal
event. In addition, Dr. Frankil found no evidence of a myocardial infarction or
reported symptoms of coronary artery disease in the days before Decedent’s death,
such as shortness of breath, or pain in the chest, arm, jaw, or back. Nor did Dr.
Frankil find any outward evidence or documentation in the medical records of
Decedent having atherosclerotic cardiovascular disease or prior plaquing of the
arteries, although he acknowledged Decedent was at risk. Decedent’s family
physician recommended testing for this, but there was no record of it ever being
performed. According to Dr. Frankil, someone may have multiple risk factors but
not have coronary artery disease, or someone may have no risk factors but have bad
coronary artery disease. Without coronary artery disease, he did not believe
psychosocial stress could cause a myocardial infarction and provided two examples
to support this opinion. Dr. Frankil explained there are other causes of sudden death,
including some that Decedent had a greater likelihood of experiencing. Differential
diagnoses included hypertensive stroke based upon Decedent’s hypertension, which
was not optimally managed, or subarachnoid hemorrhage or aortic dissection based
upon Decedent’s history of hypertension, smoking, and dyslipidemia. Decedent’s
hypertension could cause left ventricular hypertrophy and fibrosis, which, in turn,
would put Decedent at risk of fatal arrhythmia.
In terms of Decedent’s death, Dr. Frankil explained the only thing known for
certain was that Decedent died suddenly between 1:00 a.m. and 5:30 a.m. According
to Dr. Frankil, there is a “trend” for myocardial infarctions to occur based on
circadian rhythms in the morning upon waking and between 6:00 a.m. to 6:00 p.m.
than overnight or between 6:00 p.m. and 6:00 a.m., when sudden death from sleep
8
apnea is more likely to occur. (FOF ¶ 6.g.) Dr. Frankil opined Decedent died from
sleep apnea or a hypertensive crisis.
B. WCJ’s Decision
Based upon the above evidence, the WCJ concluded Claimant did not meet
her burden of establishing that psychosocial stress, specifically, financial strain, was
a substantial contributing factor in Decedent’s death. In reaching this conclusion,
the WCJ found the testimony of Claimant, Attorney Vitale, Attorney Gross, and
Attorney Bauerle “credible as to [their] observations of Decedent.” (Id. ¶¶ 7-10.)
With regard to Claimant’s testimony, the WCJ further found “Decedent kept his
medical matters mostly to himself, [so] it is unclear whether a complete and accurate
medical history was available.” (Id. ¶ 7.) The WCJ similarly found Decedent kept
business to himself, so “while it may be Claimant’s observation and impression that
financial matters were causing Decedent’s behavioral changes in 2014, there is no
tangible evidence that this was the cause.” (Id.) To the extent Claimant testified
college expenses for the couple’s children was a concern, the WCJ noted trusts had
been established to cover those costs. He also noted that Claimant acknowledged
finances varied from year to year.
Concerning the testimony of the attorney witnesses, the WCJ credited
Attorney Vitale’s testimony that Decedent was late on some rent payments in 2014,
but noted Attorney Vitale “could not say with certainty that there had not been other
late rent payments between 2007[] and 2013.” (Id. ¶ 8.) The WCJ likewise found
that Attorney Vitale’s “[t]estimony regarding outstanding fees from a shared case
lacked specificity to know whether the failure to pay the fee was based on lack of
funds.” (Id.) Turning to Attorney Gross’s testimony, the WCJ credited his
9
testimony about the condition of the cases he assumed. However, the WCJ further
found that “[w]hile it is believed that many depositions needed to be taken on cases,
there was no tangible evidence that those depositions were not taken due to lack of
funds.” (Id. ¶ 9.) Finally, as to Attorney Bauerle’s testimony, the WCJ found
credible his description of how cases were handled among Decedent and himself and
that the influx of cases from the new referral showed promise. “However,” the WCJ
found, “[Attorney] Bauerle was not privy to the financial books of the firm and could
not say with certainty what the actual financial condition of the firm was.” (Id. ¶ 10.)
With regard to the two expert witnesses, Dr. DePace and Dr. Frankil, the WCJ
found “the opinions of Dr. Frankil to state what more likely happened on October
21, 2014, between 1 AM and 5:20 AM.” (Id. ¶ 11.) Because Decedent never
underwent recommended testing, the WCJ found “there is no medical proof that
Decedent had coronary artery disease, so the medical experts [we]re left to some
conjecture after analyzing the information available.” (Id.) The WCJ also noted that
“[n]either expert had a forensic accounting to demonstrate the degree of financial
stress of the firm, if any,” and “[n]one of the fact witnesses were in a position to
provide any detail as to the extent of financial stress, if any.” (Id.) The WCJ
continued:
Dr. DePace’s report states that there is a temporal relationship between
the trigger and the death. Claimant’s testimony of the night at issue
portrays a normal time of relaxation, with no apparent trigger. [Dr.
DePace] further states that the death could not have been the result of
sleep apnea because [Decedent] did not die in bed. Dr. DePace
presumes that Decedent could not have fallen asleep in the home office
during what would have been normal sleeping hours. The undersigned
cannot accept this speculation. Dr. Frankil offers differential diagnoses
of the death which are unrelated to work. The undersigned finds
significant Dr. Frankil’s testimony that myocardial infarction usually
occurs upon waking or during the day hours and sudden death from
sleep apnea is more common at night.
10
(Id.)
Finally, the WCJ found that while “there may have been some financial strain,
the degree of financial strain on the law firm was not proven.” (Id. ¶ 12.) As a result,
the WCJ, while sympathetic to Claimant, was “constrained to find that psychosocial
stress as a result of financial strain was not a substantial contributing factor in the
premature death of Decedent.” (Id.) Accordingly, the WCJ denied the Fatal Claim
Petition.
C. Board’s Opinion
Claimant appealed the WCJ’s Decision to the Board, arguing the WCJ
capriciously disregarded uncontested evidence that shows Decedent’s death was the
result of psychosocial stress related to his work. After summarizing the WCJ’s
findings, the Board determined the WCJ did not capriciously disregard the evidence.
Instead, the Board noted that the WCJ thoroughly reviewed the evidence and
explained her credibility determinations. Although the WCJ credited the lay
witnesses’ testimony, the Board determined the WCJ still found the testimony
“insufficient to establish that Decedent’s death was substantially caused by work-
related psychosocial stress due to any alleged financial strain on his business.”
(Board Opinion (Op.) at 8.)
The Board also rejected Claimant’s contention that the WCJ’s finding that
Claimant did not meet her burden on the Fatal Claim Petition was not supported by
substantial, competent evidence. The Board explained that the WCJ did not credit
Claimant’s expert, Dr. DePace, and credited Employer’s expert, Dr. Frankil, instead.
Therefore, Claimant did not provide unequivocal medical evidence, as required, to
show work-related stress substantially contributed to Decedent’s death. (Id. at 8-9.)
11
Accordingly, the Board affirmed the WCJ’s Decision. Claimant now petitions for
review of the Board’s Order.
II. PARTIES’ ARGUMENTS
On appeal,7 Claimant argues the WCJ capriciously disregarded uncontested
evidence and made findings of fact that were not supported by substantial evidence.
Specifically, Claimant argues the WCJ found all of the lay witnesses who testified
as to Decedent’s financial stress credible but yet, in Finding of Fact No. 12,
determined that Claimant did not prove “the degree of financial strain.” (Claimant’s
Brief (Br.) at 26 (quoting FOF ¶ 12).) According to Claimant, the record confirms
that Decedent was under a significant amount of stress as evidenced by a 50 percent
reduction in his income and Decedent’s inability to pay the costs of litigation,
referral fees, his associate’s wages, and rent. Therefore, Claimant argues a forensic
accounting, as suggested by the WCJ, was not necessary. In addition, Claimant
challenges Finding of Fact No. 11, in which the WCJ credited Dr. Frankil’s opinion
concerning Decedent’s cause of death over Dr. DePace’s opinion. Claimant
contends Dr. DePace provided unequivocal testimony that Decedent’s work-related
financial stress was a substantial contributing factor in his death. On the other hand,
Claimant asserts “Dr. Frankil could not provide a definitive opinion regarding the
cause of [Decedent’s] death” and “merely outlined the alternative possibilities that
could have caused the sudden death generally in an individual,” which Dr. DePace
7
“Our standard of review is limited to a determination of whether there has been a violation
of constitutional rights, whether an error of law has been committed, or whether all necessary
findings of fact are supported by substantial evidence.” Markle v. Workers’ Comp. Appeal Bd.
(Bucknell Univ.), 785 A.2d 151, 153 n.2 (Pa. Cmwlth. 2001). When reviewing questions of law,
our review is plenary. Land O’Lakes, Inc. v. Workers’ Comp. Appeal Bd. (Todd), 942 A.2d 933,
936 n.3 (Pa. Cmwlth. 2008).
12
ruled out as possibilities. (Id. at 37, 39 (quotation marks omitted).) Claimant argues
the WCJ erred in “accept[ing] the equivocal theories of . . . Dr. Frankil.” (Id. at 27.)
Claimant asks the Court to vacate the Board’s Order affirming the WCJ’s Decision
and remand “for findings of fact consistent with the acknowledgment that [Claimant]
established the existence of significant work[-]related psychosocial stress,” and
“[w]ith this finding corrected, the medical evidence can be properly weighed.” (Id.
at 42.)
Employer argues that the WCJ’s Decision is supported by substantial,
competent evidence. Employer asserts “[t]he WCJ went into great detail . . .
addressing why each [lay] witness[es]’ testimony did not prove financial stress.”
(Employer’s Br. at 8.) Specifically, Employer argues the WCJ found Claimant
lacked knowledge of the financial status of the firm because Decedent kept that
information to himself; Attorney Vitale did not provide any specifics on late rental
payments or late referral fees; Attorney Gross produced no tangible proof that the
depositions in the cases he took over were not taken because of finances; and
Attorney Bauerle lacked knowledge of the firm’s finances, acknowledged being paid
base wages regularly, and admitted the new referral source looked promising.
Because these witnesses testified live before the WCJ, Employer contends the WCJ
had the opportunity to listen to their testimony and observe their demeanor, which
she could take into consideration in making her credibility determinations. Further,
because there was no credited evidence that the firm was financially strained,
Employer contends there was also no factual basis to support the opinion of
Claimant’s expert, Dr. DePace. Moreover, Employer argues that the WCJ’s
reference to the lack of a forensic accounting was not the only reason the WCJ
rejected Claimant’s argument that financial stress was a substantial factor in
13
Decedent’s death. Employer notes the WCJ’s finding also was based upon the lack
of evidence provided by Claimant or her three lay witnesses. Employer also argues
that the WCJ rejected Dr. DePace’s opinion as to causation, and without establishing
causation, Claimant could not prevail on her Fatal Claim Petition. Employer argues
the WCJ’s decision to accept Dr. Frankil’s opinion that sleep apnea was the more
likely cause of Decedent’s death, was within the WCJ’s province as the fact finder.
III. DISCUSSION
Claimant first argues the WCJ capriciously disregarded evidence related to
the amount of stress Decedent was under at work. A capricious disregard of
evidence occurs when there is a “deliberate and baseless disregard of apparently
trustworthy evidence.” Williams v. Workers’ Comp. Appeal Bd. (USX Corp.-
Fairless Works), 862 A.2d 137, 144 (Pa. Cmwlth. 2004); see also Leon E.
Wintermyer, Inc. v. Workers’ Comp. Appeal Bd. (Marlowe), 812 A.2d 478, 487 n.12
(Pa. 2002) (defining capricious disregard as a “deliberate disregard of competent
evidence which one of ordinary intelligence could not possibly have avoided in
reaching a result”). Our Supreme Court has stated that “where there is substantial
evidence[8] to support an agency’s factual findings, and those findings in turn support
the conclusions, it should remain a rare instance in which an appellate court would
8
Substantial evidence is defined as “relevant evidence that a ‘reasonable person might
accept as adequate to support a conclusion.’” Pocono Mountain Sch. Dist. v. Workers’ Comp.
Appeal Bd. (Easterling), 113 A.3d 909, 918 (Pa. Cmwlth. 2015) (quoting Wieczorkowski v.
Workers’ Comp. Appeal Bd. (LTV Steel), 871 A.2d 884, 890 (Pa. Cmwlth. 2005)). When
reviewing a WCJ decision for substantial evidence, we must view the evidence in the light most
favorable to the prevailing party and draw all reasonable inferences in the prevailing party’s favor.
Id. It is important to note that “it is irrelevant whether the record contains evidence to support
findings other than those made by the WCJ; the critical inquiry is whether there is evidence to
support the findings actually made.” Lahr Mech. v. Workers’ Comp. Appeal Bd. (Floyd), 933 A.2d
1095, 1101 (Pa. Cmwlth. 2007) (citation omitted).
14
disturb an adjudication based upon capricious disregard.” Wintermyer, 812 A.2d at
487 n.14 (emphasis added). Additionally, “where the WCJ discusses the evidence
in question, but rejects it as less credible or assigns it less evidentiary weight than
other evidence, the WCJ’s determination does not constitute a capricious disregard
of that evidence.” Grimm v. Workers’ Comp. Appeal Bd. (Fed. Express Corp.), 176
A.3d 1045, 1054 (Pa. Cmwlth.), petition for allowance of appeal denied, 189 A.3d
385 (Pa. 2018). When reviewing a WCJ’s decision, we must be cognizant that the
WCJ is “the ultimate fact finder” and as such “has exclusive province over questions
of credibility and evidentiary weight, and is free to accept or reject the testimony of
any witness . . . in whole or in part.” Williams, 862 A.2d at 143. “[A]s fact finder,
the WCJ is not required to accept even uncontradicted testimony.” Id. at 144 (citing
Capasso v. Workers’ Comp. Appeal Bd. (RACS Assocs., Inc.), 851 A.2d 997, 1002
(Pa. Cmwlth. 2004)). However, while
generally a [WCJ] may disregard the testimony of any witness, even
though the testimony is uncontradicted, [a WCJ] does not have the
discretion to capriciously disregard competent evidence without a
reasonable explanation or without specifically discrediting it. . . . At
the very least the findings and conclusions of the fact finder must have
a rational basis in the evidence of record and demonstrate an
appreciation and correct application of underlying principles of
substantive law to that evidence. . . . When a [WCJ] rejects
uncontradicted evidence and makes findings or conclusions which have
no rational basis in the evidence of record, that [WCJ] capriciously
disregards competent evidence. Simply stated, a [WCJ] may not
“reject” credible and uncontradicted medical evidence without
explaining why the evidence is “rejected.”
Acme Mkts., Inc. v. Workmen’s Comp. Appeal Bd. (Pilvalis), 597 A.2d 294, 296-97
(Pa. Cmwlth. 1991) (internal citations omitted).
15
Here, Claimant argues the WCJ capriciously disregarded her testimony and
the testimony of three other lay witnesses who all testified as to the financial strain
Decedent was under and how it impacted him. Claimant argues the WCJ credited
each of these witnesses’ testimony, yet found no evidence of the extent of this
financial strain. Importantly, however, the WCJ did not wholesale credit these
witnesses, as Claimant suggests. Rather, the WCJ credited these witnesses only to
the extent of their “observations of Decedent.” (FOF ¶¶ 7-10.) The WCJ went on
to qualify the finding as to each witness. Concerning Claimant, the WCJ noted she
testified Decedent kept his health and the firm’s finances to himself; therefore, the
WCJ found “there [wa]s no tangible evidence that” the financial matters caused the
observed changes in Decedent’s behavior. (Id. ¶ 7.) Instead, the WCJ found it was
Claimant’s “impression” that it was the cause. (Id.) The WCJ’s findings as to the
other lay witnesses also contained caveats. For instance, with regard to Attorney
Vitale, the WCJ found Attorney Vitale could not recall if Decedent was late on rent
in previous years, which would undercut Claimant’s position. (Id. ¶ 8.) As for
Attorney Gross, the WCJ found “no tangible evidence” that Decedent did not take
the outstanding depositions in the cases Attorney Gross assumed for lack of funds.
(Id. ¶ 9.) The WCJ also found that Attorney Bauerle “was not privy to the financial
books of the firm and could not say with certainty what the actual financial condition
of the firm was.” (Id. ¶ 10.)
These findings go to the weight that the WCJ gave the witnesses’ testimony,
which was within the sole province of the WCJ. Williams, 862 A.2d at 143.
Furthermore, “where the WCJ discusses the evidence in question,” as the WCJ did
here, “but rejects it as less credible or assigns it less evidentiary weight than other
evidence,” also as the WCJ did here, the WCJ has not capriciously disregarded that
16
evidence. Grimm, 176 A.3d at 1054. As we stated in Williams, there is a “crucial
distinction between a rejection of a witness’s testimony[] and the capricious
disregard thereof.” 862 A.2d at 145. We further stated that the “capricious disregard
standard is not to be applied in such a manner as would intrude upon an agency’s
fact[]finding rule and discretionary decision making.” Id. at 146.
Here, the WCJ did not capriciously disregard evidence. Rather, the WCJ, as
fact finder, heard the testimony firsthand, made credibility determinations, and
weighed the evidence presented. The WCJ thoroughly explained her thought
process, and Finding of Fact No. 12, which states Decedent was under some financial
strain, but the degree of strain was not established, is supported by the testimony
outlined above. Accordingly, we cannot find that the WCJ capriciously disregarded
evidence.
Nor can we find that the WCJ erred in rejecting Claimant’s expert and
crediting Employer’s expert, whose testimony the Claimant argues was equivocal.
It bears repeating that the WCJ is “the ultimate fact finder . . . and is free to accept
or reject the testimony of any witness, including a medical witness, in whole or in
part.” Id. at 143. That is exactly what the WCJ did here. The WCJ credited Dr.
Frankil’s theory of what happened to Decedent over Dr. DePace’s theory. To prevail
on a fatal claim petition, a claimant must show: (1) the employee sustained a work-
related injury, and (2) that the injury was a substantial, contributing cause of the
employee’s death. Manitowoc Co., Inc. v. Workers’ Comp. Appeal Bd. (Cowan), 74
A.3d 1137, 1141 (Pa. Cmwlth. 2013). If the causal connection between work and
the death is not obvious, a claimant is required to present unequivocal medical
evidence establishing the causal link. Id. The fact that Dr. DePace agreed with the
cause of death listed in the death certificate is not determinative. While death
17
certificates are admissible in workers’ compensation cases, death certificates are not
conclusive proof of cause of death. Patton v. Workers’ Comp. Appeal Bd. (Lane
Enters., Inc.), 958 A.2d 1126, 1134 (Pa. Cmwlth. 2008). A WCJ may reject the
cause of death on the death certificate, just as a WCJ may reject a witness’s
testimony. It is the WCJ’s “prerogative as the fact[]finder.” Id. at 1135. Since the
WCJ did not credit Dr. DePace’s theory that work-related stress was a substantial,
contributing cause of Decedent’s death, Claimant did not meet her burden.
To the extent Claimant argues that the WCJ could not credit Dr. Frankil’s
testimony because it was equivocal,9 we disagree for two reasons. First, even if Dr.
Frankil’s testimony was equivocal and, therefore, incompetent as a matter of law,
Claimant still could not prevail because the burden was on her and she did not meet
her burden of proof. See Stalworth v. Workers’ Comp. Appeal Bd. (Cty. of
Delaware), 815 A.2d 23, 29-30 (Pa. Cmwlth. 2002) (finding that although the
opinion of the employer’s medical expert was equivocal, the WCJ rejected the
testimony of the claimant’s medical expert, and as a result, the claimant did not
satisfy the burden of proof). Because this was a fatal claim petition, Employer did
not have the burden of proof. In fact, although not doing so would probably not have
been prudent, Employer was not required to present an expert.
Second, Dr. Frankil’s testimony was not equivocal. Medical testimony is
“equivocal if it is based only upon possibilities, is vague, and leaves doubt.”
Amandeo v. Workers’ Comp. Appeal Bd. (Conagra Foods), 37 A.3d 72, 80 (Pa.
Cmwlth. 2012) (quotation omitted). The medical expert’s testimony must be
reviewed “as a whole and [we] may not base our analysis on a few words taken out
of context.” Id. Furthermore, “[t]here are no magic words that a doctor must recite
9
“[W]hether testimony is equivocal is a question of law that is fully subject to our review.”
Stalworth v. Workers’ Comp. Appeal Bd. (Cty. of Delaware), 815 A.2d 23, 29 (Pa. Cmwlth. 2002).
18
to establish causation.” Campbell v. Workers’ Comp. Appeal Bd. (Pittsburgh Post
Gazette), 954 A.2d 726, 730 (Pa. Cmwlth. 2008). “There is no requirement that
every utterance that escapes the lips of a medical witness . . . must be certain,
positive, and without reservation, exception, or paradventure of a doubt in order to
be considered unequivocal.” Id. “[I]f a medical expert testifie[d], after providing
foundation for the testimony, that, in [the expert’s] professional opinion, [the expert]
believes or thinks a fact exists,” the testimony is unequivocal. O’Neill v. Workers’
Comp. Appeal Bd. (News Corp., Ltd.), 29 A.3d 50, 57 (Pa. Cmwlth. 2011). The
“mere offering of alternative analyses with respect to a work-related injury does not
render the expert’s testimony equivocal.” Manitowoc Co., Inc., 74 A.3d at 1142.
Nor is an expert required to “rule out with absolute certainty other factors that may
have caused or contributed to a condition.” Campbell, 954 A.2d at 730.
Here, when Dr. Frankil’s testimony is examined as a whole, it is apparent he
believed Decedent did not die from a heart attack caused by stress, but from either
sleep apnea or a hypertensive crisis. (Reproduced Record at 315a.) Dr. Frankil
thoroughly explained why he did not think Decedent suffered a myocardial
infarction. (Id. at 296a, 309a-312a.) He saw no evidence of myocardial infarction
or coronary artery disease. (Id. at 309a-10a.) He also explained why he did not
believe psychosocial stress could induce myocardial infarction without evidence of
coronary artery disease, an opinion he reiterated on cross-examination. (Id. at 311a-
12a, 326a.) Myocardial infarction, Dr. Frankil explained, is predominantly caused
by plaque rupturing. Because stress does not cause plaque, he reasoned that stress
cannot cause myocardial infarction in plaque’s absence. (Id. at 312a.) Dr. Frankil
acknowledged that literature would say the myocardial infarction was most likely
the cause of death, but he questioned the accuracy of the data since it was based on
19
the cause of death listed in death certificates, without regard to whether an autopsy
was performed to confirm the cause of death. (Id. at 306a.) Dr. Frankil opined
“there’s a high likelihood that the cause of death in [Decedent] was not a[]
[myocardial infarction].” (Id. at 315a.)
Dr. Frankil did testify in general as to a number of other potential causes of
sudden death in someone Decedent’s age. (Id. at 300a-03a.) However, he then
offered differential diagnoses specific to Decedent. (Id. at 303a.) He testified
Claimant’s description of Decedent’s snoring episodes was important evidence of
“apneic episodes followed by regaining of breath.” (Id. at 294a.) Decedent’s
medical records also indicated suspicion of sleep apnea. Although he admitted sleep
apnea was speculative, as were all conditions without the benefit of an autopsy, he
was “highly suspicious” of it. (Id. at 305a, 332a.) Dr. Frankil supported his theory
by explaining that the time of day of Decedent’s death was more indicative of sudden
death as a result of sleep apnea than sudden death as a result of myocardial infarction.
(Id. at 310a-11a.) He called sleep apnea “one of the leading causes” of Decedent’s
death, in his professional medical opinion, as was a hypertensive crisis based upon
Decedent’s medical history. (Id. at 315a.) Taken as a whole, we cannot say Dr.
Frankil’s opinion was equivocal. See Kondrat v. Workmen’s Comp. Appeal Bd.
(Westinghouse Elec. Corp.), 603 A.2d 689, 692 (Pa. Cmwlth. 1992) (holding
expert’s testimony that expert “fe[lt] very strongly” about the decedent’s cause of
death was “neither equivocal nor ambiguous”). Accordingly, we discern no error in
the WCJ’s reasoning.
20
IV. CONCLUSION
Because the WCJ did not capriciously disregard evidence, but rather made
credibility determinations and weighed the evidence presented, we must affirm the
Board’s affirmance of the WCJ’s Decision.
_____________________________________
RENÉE COHN JUBELIRER, Judge
Judge McCullough did not participate in the decision in this case.
21
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Andrew Touchstone, c/o Teri :
Touchstone, :
Petitioners :
:
v. : No. 1336 C.D. 2018
:
Workers’ Compensation Appeal Board :
(Touchstone and Associates, P.C.), :
Respondent :
ORDER
NOW, July 29, 2019, the Order of the Workers’ Compensation Appeal Board,
in the above-captioned matter, is AFFIRMED.
_____________________________________
RENÉE COHN JUBELIRER, Judge