K.A. Finck v. Union County Commissioners (WCAB) ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kelly A. Finck, :
Petitioner :
:
v. : No. 1029 C.D. 2022
: Submitted: April 28, 2023
Union County Commissioners :
(Workers’ Compensation Appeal :
Board), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
PRESIDENT JUDGE COHN JUBELIRER FILED: December 18, 2023
Kelly A. Finck (Claimant), pro se, petitions for review of the July 22, 2022
Order of the Workers’ Compensation Appeal Board (Board) that affirmed a decision
of the Workers’ Compensation Judge (WCJ), denying and dismissing her two claim
petitions. On appeal, Claimant argues ineffective assistance of counsel1 and that the
WCJ abused his discretion with regard to an evidentiary ruling by considering
irrelevant evidence.2 After careful review, we affirm.
1
We note that the record shows that three attorneys of the same firm participated in the
representation of Claimant. Claimant does not distinguish between them in her brief. Accordingly,
neither will we. Rather, we will, to the extent relevant, examine their representation of Claimant
in the aggregate, referring to them throughout the opinion simply as “Claimant’s counsel.”
2
We have combined and reordered Claimant’s arguments for ease of discussion.
I. BACKGROUND
A. Procedural & Factual Background3
On October 30, 2016, Claimant allegedly slipped and fell on a wet floor while
working as a cook, injuring her hip. (WCJ Decision, Findings of Fact (FOF) ¶¶ 1,
10-11.) Initially, Claimant’s employer, Union County Commissioners (County or
Employer), issued a Notice of Temporary Compensation Payable on November 21,
2016, describing the injury as a right hip sprain. (Id. ¶ 4.) It subsequently issued a
Notice Stopping Temporary Compensation Payable and a Notice of Workers’
Compensation Denial on January 26, 2017, based on alleged noncompliance with
medical treatment. (Id. ¶¶ 5-6.) As a result, Claimant filed her first claim petition
on February 10, 2017. (Certified Record (C.R.) Item 2.)
Thereafter, Employer offered Claimant a light-duty, part-time position as a
receptionist, and Claimant worked in that capacity from August 24 until October 10,
2017. (FOF ¶¶ 41, 43, 47.) Prior to returning to light-duty work, Claimant’s husband
was convicted of an election-related offense and sentenced to a period of
incarceration. (Id. ¶¶ 31, 32, 43.) The light-duty position Claimant was assigned
was located just outside the election board’s office, and, as a result, Claimant had
frequent contact with individuals she blamed for her husband’s arrest. (Id. ¶¶ 43,
47, 131; see also Exhibit (Ex.) D-11 (Floor Plan of Union County Government
Center), C.R. Item 60.)4 On April 11, 2018, Claimant filed a second claim petition,
pro se, alleging “anxiety disorder and panic attacks caused by actions of other []
County employees.” (FOF ¶ 2; C.R. Item 58.) The WCJ consolidated the two
3
While Claimant originally challenged some findings of fact before the Board, Claimant
no longer pursues those before this Court. Thus, we treat those findings as undisputed.
4
Because the two claim petitions were consolidated, the Certified Record contains
duplicates of certain items, such as transcripts and exhibits, which were separately docketed for
each claim petition. For convenience, we cite only to the first instance of a given item.
2
petitions, and multiple hearings were held at which Claimant appeared pro se for
some and was represented by her counsel for others.
Claimant testified5 she was displeased with the light-duty placement and
asked Human Resources (HR) to place her anywhere else because of its proximity
to the election board’s office. (FOF ¶¶ 43, 44, 131, 136.) During the almost two
months she worked in that capacity, she testified that she experienced stress due to
comments other employees would make, including comments from an election
board employee who had testified against her husband at his criminal trial. (Id. ¶
47.) Claimant also indicated that her husband’s probation officer (PO), also a
County employee, searched her house twice, released her medical information,
threatened her husband, and accused her of lying. (Id. ¶¶ 48-50.)
Claimant testified that these interactions, coupled with her husband’s release
from incarceration with bruises and abrasions, caused anxiety and panic attacks. (Id.
¶¶ 50, 100.) The first severe panic attack, according to Claimant, came after a
telephone call with the PO in which he allegedly threatened her. (Id. ¶¶ 51, 126.)
According to Claimant, it became clear to her that the PO also had access to her
personnel records and medical information. (Id. ¶ 54.)
In addition, Claimant’s husband testified about his interactions with Tioga
County prison officers, his interactions with the PO, and his wife’s condition.6
Claimant’s counsel also deposed Mahmood Nasir, M.D., a pain management
5
Claimant testified at the April 18, 2017, September 5, 2018, October 31, 2018, December
18, 2018, January 24, 2019, March 14, 2019, and September 8, 2020 hearings, transcripts of which
can found in the Certified Record at Items 11, 15, 16, 17, 18, 19, and 29, and her testimony is
summarized in Findings of Fact 8-22, 39-85, 88-108, 109-15, 116-27, 128-41, and 142-55.
6
Claimant’s husband testified at the September 8, 2020 hearing and his testimony is
summarized in Findings of Fact 157-73.
3
specialist and neurologist with whom she treated for the hip injury,7 and Jeffrey A.
Gold, Ph.D., a licensed psychologist with whom she treated for the anxiety and panic
attacks.8 Dr. Nasir testified that, in his opinion, the hip injury was work related. (Id.
¶ 237.) Dr. Gold testified that, in his opinion, Claimant’s psychological condition
“w[as] related to Claimant’s pain because it was a stressor” but was mostly caused
by “anxiety related to [E]mployer and the interactions they [sic] had with her.” (Id.
¶ 254.) Dr. Gold also testified that Claimant came to him on a referral from her
counsel. (Id. ¶ 242.) When asked who sent her to Dr. Gold, Claimant stated that she
could not recall. (Id. ¶ 72.)
Employer called County employees who interacted with Claimant,
specifically the PO,9 an election board official,10 a coworker of Claimant,11 and
Employer’s HR director,12 who, overall, testified that they did not engage in the
harassing behavior alleged by Claimant. (See, e.g., id. ¶¶ 179; 181; 186; 203-04;
212; 223-25; 230.) Employer also deposed three Tioga County Prison officers and
the deputy warden who interacted with Claimant’s husband while he was
7
Dr. Nasir’s deposition transcript can be found in the Certified Record at Item 40 and his
testimony is summarized in Findings of Fact 233-41.
8
Dr. Gold’s deposition transcript can be found in the Certified Record at Item 41 and his
testimony is summarized in Findings of Fact 242-55.
9
The PO testified at the December 13, 2019 and January 14, 2020 hearings, transcripts of
which can be found in the Certified Record at Items 24 and 25, and his testimony is summarized
in Findings of Fact 174-88 and 189-99.
10
The election official testified at the May 29, 2020 hearing, a transcript of which can be
found in the Certified Record at Item 27, and her testimony is summarized in Findings of Fact 200-
08.
11
The coworker testified at the May 29, 2020 hearing, and her testimony is summarized in
Findings of Fact 209-17.
12
HR director testified at the May 29, 2020 and July 16, 2020 hearings, transcripts of which
can be found in the Certified Record at Items 27 and 28, and her testimony is summarized in
Findings of Fact 218-221 and 222-31.
4
incarcerated there.13 And finally, Employer deposed three expert witnesses, Thomas
DiBenedetto, M.D., a board-certified orthopedic physician,14 Wolfram Rieger, M.D.,
a board-certified psychiatrist,15 and Patrick B. Respet, M.D., a board-certified
orthopedic surgeon,16 all of whom examined Claimant. Drs. DiBenedetto and Respet
testified that Claimant did not sustain a disabling work-related hip injury, (id. ¶ 292),
and Dr. Rieger testified that Claimant’s anxiety and panic attacks were not related
to her alleged hip injury and were situational, such that the “triggers were
interactions with [County] employees regardless of [where] those interactions would
occur,” (id. ¶ 289).
B. WCJ and Board Decisions
On October 25, 2021, the WCJ issued his decision denying and dismissing
both claim petitions. The WCJ determined that Claimant had not carried her burden
of proving that she had suffered compensable injuries under the Workers’
Compensation Act (Act)17 “because her evidence has been found to be not credible.”
(WCJ Decision, Conclusions of Law ¶ 2.) Specifically, the WCJ made the following
credibility determinations. Although the WCJ credited Claimant’s testimony about
falling at work and that she perceived her hip pain prevented her from returning to
work as a cook, the WCJ rejected Dr. Nasir’s testimony and credited the testimony
of Drs. DiBenedetto and Respet that Claimant’s fall at work did not cause a right hip
13
These deposition transcripts can be found in the Certified Record at Items 66-69 and are
summarized in Finding of Fact 232.
14
Dr. DiBenedetto’s deposition transcript can be found in the Certified Record at Item 61
and his testimony is summarized in Findings of Fact 256-67.
15
Dr. Rieger’s deposition transcript can be found in the Certified Record at Item 62 and
his testimony is summarized in Findings of Fact 277-89.
16
Dr. Respet’s deposition transcript can be found in the Certified Record at Item 64, and
his testimony is summarized in Findings of Fact 268-76.
17
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
5
labral tear but rather was limited to a hip contusion that did not prevent her from
working. (FOF ¶¶ 290-93.) And while the WCJ found Claimant credible insofar as
she experienced panic attacks during her light-duty receptionist position, he rejected
Claimant’s allegations that those attacks stemmed from her interactions with County
employees, specifically finding that the election official, coworker, and HR director
were “more credible than Claimant[].” (Id. ¶¶ 294-95.) The WCJ also did not credit
Claimant’s testimony concerning her interactions with her husband’s PO. (Id.
¶ 296.) The WCJ found husband’s testimony regarding mistreatment in jail and his
interactions with the PO not credible, explicitly finding the Tioga County Prison
officers’ testimony and the PO’s testimony more credible. (Id. ¶ 300.) In addition,
the WCJ found that “Claimant’s credibility was significantly diminished” because
she did not reveal that she had found a particular physician, Dr. Gold, at the
recommendation of her attorney despite intake forms and the physician’s testimony.
(Id. ¶ 297.)18 The WCJ credited the PO’s testimony that he never released any of
Claimant’s information. (Id. ¶ 298.) The WCJ did not credit Dr. Gold’s opinions
because they were “based solely on Claimant’s subjective perceptions of her
employment, and while real to her, they have been found not credible as fact by th[e]
WCJ.” (Id. ¶ 299.)
Claimant appealed to the Board, which affirmed.19 Relevant here, the Board
declined to remand for a rehearing based on Claimant’s ineffective assistance
allegations, reasoning as follows:
18
The WCJ also found Claimant’s credibility diminished because “she testified that
[Employer] made her return to work when her husband was sentenced and incarcerated [but
Employer’s HR director] testified that [Employer] accommodated Claimant’s request to delay her
start date.” (FOF ¶ 297.)
19
Commissioner Gabig concurred in the result only.
6
Claimant points us to alleged corroborating evidence that she argues
could have bolstered her and her husband’s credibility, such as video
from [her husband’s] incarceration at [Tioga County Prison]. However,
it is unclear whether this evidence was in Claimant’s counsel’s
possession or if it would have been permitted into the record. Claimant
also calls to our attention her counsel’s failure to call certain witnesses,
such as the [c]ounty [w]arden and his wife. Nevertheless, there is no
way to discern whether these witnesses, if they were to even appear,
would have assisted Claimant’s case or how this testimony would have
bolstered her and her husband’s credibility. We, as the Board, do not
propose to know the details of her counsel’s trial strategy. Nonetheless,
it is apparent from the 10 lay witness testimonies obtained, numerous
hearings devoted to Claimant’s testimony, multiple medical experts
deposed, and multitudinous exhibits entered on the record over a three[-
]and[-]a[-]half year period of litigating, that Claimant’s counsel did his
due diligence, made every attempt to chase down evidence, and spared
no expense in advocating for Claimant, despite an unsuccessful
outcome. We do not believe the circumstances of this case justify a
remand or rehearing for collection of additional evidence.
(Board Op. 19-20.) Claimant thereafter filed the instant Petition for Review.
II. DISCUSSION
A. Standard of Review
Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704, limits our
review in workers’ compensation matters to determining whether the Board violated
constitutional rights, failed to act in accordance with law, or made findings
unsupported by substantial evidence. Universal Am-Can, Ltd. v. Workers’ Comp.
Appeal Bd. (Minteer), 762 A.2d 328, 331 n.2 (Pa. 2000). A conclusion is “not in
accordance with law . . . if the agency decision represents ‘a manifest and flagrant
abuse of discretion or a purely arbitrary execution of the agency’s duties or
functions.” Slawek v. State Bd. of Med. Educ. & Licensure, 586 A.2d 362, 365 n.4
(Pa. 1991). Thus where, as here, a claimant asks us to reverse the Board for abuse
7
of discretion under the Act, we review for flagrant abuse of discretion or arbitrary
execution of the Board’s duties.
B. Ineffective Assistance of Counsel
1. Parties’ Arguments20
Claimant’s first argument is that her counsel was ineffective by failing to
present the “positive side” of her case. (Claimant’s Brief (Br.) at 12.) Specifically,
she points to counsel’s failure to question her further after she forgot to mention that
she learned of Dr. Gold through her attorney. (Id.) Further, in her view, her counsel
should have called a number of character witnesses. (Id. at 13.)
She also complains that her counsel was ineffective by failing to impeach
Employer’s witnesses. The thrust of her argument is that, had her counsel pointed
more specifically to certain alleged inconsistencies, it would have become clear that,
for example, the PO “flip-flopped some stories . . . and blatantly lied . . . .” (Id. at
15.) She also asserts that her counsel erred in not introducing pictures of her husband
after release from prison because had he, Claimant’s “credibility and that of her
husband would not have been called into question.” (Id.) She further suggests that,
had her counsel “properly questioned . . . , called additional witnesses, and
subpoenaed additional records, it could have been proven that the PO and [Tioga
County Prison officers] had committed perjury during their testimony in order to
20
Claimant’s brief does not cite caselaw or relevant legal authority, nor does Claimant
meaningfully discuss precedent. See Pa.R.A.P. 2119(a) (the argument shall include “such
discussion and citation of authorities as are deemed pertinent”). Despite the shortcomings in
Claimant’s brief, Employer attempted to address Claimant’s arguments, and we will also address
the merits of Claimant’s issues on appeal to the extent we are able. See Richardson v. Pa. Ins.
Dep’t, 54 A.3d 420, 426 (Pa. Cmwlth. 2012) (providing that we may review the cognizable
arguments we can glean from an appellate brief, despite a pro se appellant’s noncompliance with
the Pennsylvania Rules of Appellate Procedure, even if those violations are “egregious,” if they
do not preclude meaningful appellate review).
8
cover up their own wrongdoings.” (Id. at 15-16.) She also asserts that opposing
counsel acted unethically in gossiping with a witness and that her counsel glossed
over it. (Id. at 6.)21
Employer relies on this Court’s decision in Martell v. Workers’ Compensation
Appeal Board (Doyle Equipment), 707 A.2d 242 (Pa. Cmwlth. 1998), for the
proposition that “there is no mandate to remand for a rehearing every time a losing
party can point to some evidence that his or her attorney did not introduce into the
evidentiary record.” (Employer’s Br. at 11.) Employer argues remand is only proper
where “the WCJ’s findings are not supported by substantial evidence or where the
WCJ fails to make findings on a crucial issue,” and because Claimant does not so
allege, her claims must fail. (Id. at 11-12.)
2. Analysis
Early in this Court’s existence, looking to the Fourteenth Amendment of the
United States Constitution, U.S. CONST. amend XIV, and article I, section 9 of the
Pennsylvania Constitution, PA. CONST. art. I, § 9, we observed at the time that the
right “to effective assistance of counsel has never been extended to civil or
administrative proceedings, but rather is limited to a review of criminal
prosecutions.” Johnson v. Workmen’s Comp. Appeal Bd., 321 A.2d 728, 730 (Pa.
Cmwlth. 1974). Given legal developments since then, however, we must qualify
that statement, and now litigants have a right to effective assistance of counsel in
certain other proceedings. For example, since Johnson, our state courts have
recognized the right to effective assistance of counsel, protected by the Fourteenth
Amendment, in various types of proceedings. See, e.g., In re Commitment of
21
Though Claimant asks this Court to reverse the Board, we will deem the requested relief
to be reversal of a denial of rehearing, the relief compatible with her ineffective assistance claims.
(See Employer’s Brief at 10 (proceeding with that understanding).)
9
Hutchinson, 454 A.2d 1008, 1011 (Pa. 1982) (civil commitment); In the Interest of
J.T., 983 A.2d 771, 774-75 (Pa. Super. 2009) (termination of parental rights); In the
Matter of J.P., 573 A.2d 1057, 1061-62 (Pa. Super. 1990) (child dependency). In
the administrative agency context, we have recognized a right to effective assistance
of counsel in a parole revocation proceeding before the Pennsylvania Parole Board.
Hughes v. Pa. Bd. of Prob. & Parole, 534 A.2d 589, 591 (Pa. Cmwlth. 1987) (“It is
beyond dispute that a parolee in a revocation proceeding has a right to effective
assistance of counsel.”).
While the effective assistance of counsel is not “constitutionally mandated”
in the workers’ compensation context, proven incompetency may constitute “cause
shown” for a rehearing under Section 426 of the Act, 77 P.S. § 871.22 Johnson, 321A.2d at 731. The rehearing provision in Section 426 states, in relevant part, that
“[t]he [B]oard, upon petition of any party and upon cause shown, may grant a
rehearing of any petition upon which the [B]oard has made [a decision].” 77 P.S.
§ 871 (emphasis added).
The Court examined this provision in Johnson, where the claimant’s attorney
and opposing counsel “stipulated to the admission into evidence of medical reports
. . . in lieu of their testimony in person.” 321 A.2d at 729. The referee23 denied the
claimant’s petition, concluding he did not meet his burden of proof and the Board
affirmed. Id. The claimant subsequently retained new counsel and petitioned the
Board for a rehearing on the basis he was denied the effective assistance of counsel,
which the Board denied. Id. at 730. The claimant urged this Court to reverse the
Board’s denial of a rehearing because of his first attorney’s alleged incompetence,
and we declined to do so, reasoning that the attorney’s actions did not amount to
22
Section 426 was added by Section 6 of the Act of June 26, 1919, P.L. 642.
23
WCJs were formerly known as referees.
10
incompetence. Id. Johnson laid the groundwork for our current jurisprudence in
this context. In addition to establishing that proven incompetency may amount to
“cause shown” to warrant a rehearing under Section 426, Johnson established that
an attorney’s mere misjudgment about a strategic choice, which it described as “a
conscious and deliberate decision,” will not be sufficient to warrant a reversal of the
Board’s discretionary decision to deny a rehearing. Id. Rather, Johnson suggests
that a claimant would have to point, as a threshold matter, to objective incompetence.
In the almost 50 years since we decided Johnson, this Court has had occasion
to apply its basic attorney incompetence principles in two key workers’
compensation opinions. The first, Bickel v. Workmen’s Compensation Appeal Board
(Williamsport Sanitary Authority), 538 A.2d 661 (Pa. Cmwlth. 1988), involved a
claimant whose attorney inexplicably failed to present any medical testimony in
support of the claimant’s claim petition despite representing he would do so. Id. at
662. As a result, the referee concluded the claimant did not meet his burden of proof.
Id. The claimant first filed a pro se appeal requesting remand, which the Board
denied, and then, a counseled petition for rehearing on the basis of his original
attorney’s incompetence, which the Board also denied. Id. We affirmed the Board’s
remand denial but reversed the Board’s rehearing denial, reasoning everyone
expected counsel to present the evidence yet “counsel never did present this
testimony, and no reason for his failure appears in the record before us. . . . [I]t
appears that this situation came as a surprise to [the claimant] and that he discharged
his counsel for that reason.” Id. at 663 (emphasis added).24 Indeed, there, we
24
Our parallel analyses in the unemployment compensation and licensing contexts are
similar. See Wilkins v. Unemployment Comp. Bd. of Rev., 502 A.2d 283, 286 (Pa. Cmwlth. 1985)
(finding that an attorney’s decision not to call witnesses due to questionable relevance did not
amount to ineffective assistance sufficient to warrant reconsideration); Rosenthal v. State Bd. of
(Footnote continued on next page…)
11
remarked that the evidence counsel was to present would have been the claimant’s
“only means” of proving his case. Id. (emphasis added). Thus, Bickel stands for
the proposition that “cause shown” under Section 426 may exist where the
incompetence of counsel undermines a claimant’s ability to satisfy its burden of
proof.
The second reported decision on this topic is Martell, the case relied upon by
Employer.25 There, we explained that “the Board has broad discretion to order
rehearing where the interests of justice so require, [but] they do not mandate
rehearing every time a losing party can point to some evidence which his
attorney did not introduce.” 707 A.2d at 244 (emphasis added). We also framed
Bickel26 as involving attorney incompetence resulting in “manifest injustice,”
noting that only extraordinary circumstances lead to a finding of abuse of
discretion on the part of the Board in denying a rehearing. Id. In Martell, Judge
Leadbetter cogently observed that absent that standard, “piecemeal hearings
prompted by the wisdom of hindsight would become the rule rather than the
exception.” Id. Thus, generalizing the principle from Martell, we conclude that, in
Pharm., 457 A.2d 243, 245 (Pa. Cmwlth. 1983) (denying ineffective assistance claim in pharmacy
board context where pharmacist alleged counsel erred in not arguing an entrapment defense and
in saying pharmacist was lax in running his business).
25
Pre-Martell, we applied Johnson and Bickel in Mitchell v. Workmen’s Compensation
Appeal Board (Neal Tree Service), 565 A.2d 224, 226 (Pa. Cmwlth. 1989) (finding that claimant’s
scenario distinguishable from Bickel where an attorney had not entered an appearance and the
claimant failed to appear for a hearing). We also reiterated in Dominijinni v. Workmen’s
Compensation Appeal Board (DeCarlo), 581 A.2d 245, 248 (Pa. Cmwlth. 1990), that rehearing
denial is not an abuse of discretion where the record does not support any suggestion of
incompetence on the part of the attorney.
26
The Martell Court also analyzed two additional cases reversing rehearing denials: Cudo
v. Hallstead Foundry, Inc., 539 A.2d 792 (Pa. 1988), and Moats v. Workmen’s Compensation
Appeal Board (Emerald Mines Corp.), 588 A.2d 116 (Pa. Cmwlth. 1991). Both of those cases
involved after-discovered evidence—not allegations of attorney incompetence.
12
the context of alleged attorney incompetence, we will not reverse the denial of a
rehearing absent a showing of manifest injustice.
Various unreported decisions of this Court have shed further light on what
kind of alleged incompetence will pass muster under our exacting standard.27 See,
e.g., Saied v. Workers’ Comp. Appeal Bd. (Mezies Aviation Grp. (USA), Inc.) (Pa.
Cmwlth., No. 426 C.D. 2020, filed May 26, 2021), slip op. at 25, appeal denied,
(Pa., No. 59 EAL 2022, filed Aug. 23, 2022) (“While [the c]laimant is dissatisfied
that [c]ounsel did not ask him certain questions, required him to testify through a
translator, did not call his wife as a witness, did not submit certain documents, and
did not challenge certain aspects of [a physician’s] testimony on cross-examination,
we agree with [the e]mployer that this does not require a rehearing . . . .”); Price v.
Workers’ Comp. Appeal Bd. (Babb Absence Mgmt. Servs.) (Pa. Cmwlth., No. 364
C.D. 2014, filed Nov. 10, 2014), slip op. at 9 (affirming denial of rehearing where
record evidence, though discredited by WCJ, was sufficient to satisfy the claimant’s
burden of proof; thus attorney’s conduct in not submitting additional evidence did
not amount to manifest injustice). But see Master v. Workers’ Comp. Appeal Bd.
(Laminators, Inc.) (Pa. Cmwlth., No. 1879 C.D. 2012, filed Apr. 30, 2014), slip op.
at 8 (finding ineffective counsel where counsel alleged opposing counsel had misled
him into not offering medical evidence, noting “if counsel was misled and did not
offer medical evidence, he was ineffective; and if he was not misled, he was
ineffective because he did not timely file any medical reports”).
In summary, Johnson, Bickel, and Martell teach, first, that allegations of
attorney incompetence are a rehearing issue under Section 426 of the Act, which
requires “cause shown.” 77 P.S. § 871. Our cases further reveal that for attorney
27
We may cite unreported panel decisions of this Court for their persuasive value pursuant
to Section 414(a) of our Internal Operating Procedures. 210 Pa. Code § 69.414(a).
13
incompetence to amount to “cause shown” in this context, the claimant must satisfy
two elements: (i) objective incompetence on the part of counsel, Johnson, and (ii)
manifest injustice to the claimant flowing from that objective incompetence, Bickel,
Martell.
Claimant’s complaints that her counsel failed to put forth the “positive side”
of her case, did not “point out the discrepancies” in the testimony of Employer’s
witnesses, failed to reveal that the PO had committed perjury, and glossed over
“opposing counsel . . . unethically . . . gossiping with a witness prior to her
testimony” simply do not rise to the level of objective ineffective assistance our cases
require. (Claimant’s Br. at 6.) Indeed, the Martell Court explained, looking to the
record, that the alleged incompetence of counsel “under the circumstances of this
case . . . are as readily explained as strategic decisions as negligence.” 707 A.2d at
244. The same is true here. Several instances of Claimant’s complained-of conduct
can all be explained more readily as strategy than as incompetence. This case
involved more than 40 exhibits, nearly 2 dozen hearings, 5 medical witnesses, and
10 lay witnesses. (WCJ Decision at 2-4.) Accordingly, in an already unwieldy case
where there was already significant risk of confusing the issues, Claimant’s counsel
reasonably could have concluded that further evidence in an already evidence-rich
case could divert the WCJ’s attention from the most important issues. Counsel could
have reasonably concluded that further cross-examination, too, would detract from
the overall message of Claimant’s case, unduly burden the witnesses, and prejudice
Claimant’s case. And finally, counsel could have reasonably concluded that the
“gossiping” of which Claimant complained was not sufficiently egregious or
prejudicial to Claimant’s case to distract from the issues to which counsel wanted to
direct the WCJ’s attention.
14
We also observe that the record belies any suggestion of incompetence. A
thorough review of the record reveals that Claimant’s counsel cross-examined each
of Employer’s witnesses, probing into their stories and attempting to uncover
inconsistencies and corroborate Claimant’s version of events. (See, e.g., 1/14/20
Hearing Transcript (Tr.) at 15, 41-42, 44; 5/29/20 Tr. at 70, 74, and 78; 7/16/20 Tr.
at 46, 48, 61, 64, 69-70, 72, 77.)
Specifically, counsel asked questions which appeared calculated to show bias
or coordination among them, and to prove Claimant’s theory of the case. For
example, counsel asked Claimant’s coworker whether anyone had prepared her or
whether she had spoken with Employer’s HR director prior to testifying. (5/29/20
Tr. at 30-31.) Counsel attempted to impeach the witness by suggesting she had
known Claimant longer than she originally claimed. (Id. at 38.) And counsel tried
to elicit testimony from her that would tend to corroborate Claimant’s allegations of
work-related emotional distress. (Id. at 46.) Counsel also confronted the County
election official about the alleged “gossiping.” (Id. at 32.)
Counsel also defended the depositions of Employer’s medical experts. The
record reveals active questioning and participation in each on the part of Claimant’s
counsel in the defense of those depositions. (See, e.g., Dep. of Dr. DiBenedetto, at
15-16 (probing percentage of defense-side Independent Medical Exam (IME) work
performed in connection with his qualifications), and at 57-63 (cross-examining Dr.
DiBenedetto); See also Dep. of Dr. Rieger at 12-16; 47-57 (same).)
Moreover, the extensive and detailed proposed findings of fact and
conclusions of law prepared by counsel, though ultimately unsuccessful in
persuading the WCJ, reflected diligence on the part of counsel, and at a minimum
reflected an attempt to cast light on the “positive side” of Claimant’s case. (See
15
generally Claimant’s Br. in Support of Pending Claim Petitions and Proposed
Findings of Fact, Conclusions of Law, Summary, and Order, C.R. Item 150.) Put
simply, far from revealing objective incompetence, the record shows diligent
lawyering.
As the Board explained:
[I]t is apparent from the 10 lay witness testimonies obtained,
numerous hearings devoted to Claimant’s testimony, multiple
medical experts deposed, and multitudinous exhibits entered on the
record over a three[-]and[-]a[-]half year period of litigating, that
Claimant’s counsel did his due diligence, made every attempt to
chase down evidence, and spared no expense in advocating for
Claimant, despite an unsuccessful outcome.
(Board Op. at 19-20.)
Although counsel may not have presented every piece of evidence available
or cross-examined witnesses to Claimant’s satisfaction, as discussed above,
rehearing is not required “every time a losing party can point to some evidence which
[her] attorney did not introduce.” Martell, 707 A.2d at 244. Accordingly, no
manifest injustice resulted from the Board’s denial of rehearing. Simply put, our
cases require objective incompetence of counsel and a resulting manifest injustice
for us to find the Board abused its discretion in denying a rehearing on the basis of
alleged attorney incompetence. Because the record reveals no objective
incompetence, and no indication of manifest injustice, we find that the Board’s
denial of a rehearing does not amount to an abuse of discretion.
C. Unenforceable Subpoenas
1. Parties’ Arguments
Claimant next asks, “Why was testimony allowed from individuals with no
personal knowledge of [Claimant], while a subpoena for their paperwork had been
16
deemed unenforceable? The [WCJ] allowed the testimony.” (Claimant’s Br. at 6.)
Claimant does not provide legal support for this claim but seems to argue that the
WCJ erred in considering the Tioga County Prison officers’ testimony when a
subpoena related to their testimony had been deemed unenforceable because the
documents “had nothing to do with [C]laimant.” (Id. at 16.) Employer does not
seem to directly respond to this argument; however, it suggests that the effect of the
information in any of the subpoenaed documents on the WCJ’s credibility
determinations is “purely speculative.” (Employer’s Br. at 17.)
2. Analysis
WCJs enjoy broad discretion regarding evidentiary decisions. Bristol
Borough v. Workers’ Comp. Appeal Bd. (Burnett), 206 A.3d 585, 616 (Pa. Cmwlth.
2019). “Commonwealth agencies are not bound by the technical rules of evidence
. . . and all relevant evidence of reasonably probative value may be received.” Id.(citing Section 505 of the Administrative Agency Law, 2 Pa.C.S. § 505). Section
505 of the Administrative Agency Law “has been properly interpreted to permit a
relaxation of the strict rules of evidence in . . . hearings and proceedings, including
those held by a WCJ.” Id. Where sufficient evidence supports a WCJ’s findings,
despite the WCJ having considered additional and possibly irrelevant testimony, we
have found such testimony to be “mere surplusage and at best harmless error.”
Haverford Township v. Workmen’s Comp. Appeal Bd. (Angstadt), 545 A.2d 971,
974 (Pa. Cmwlth. 1988). In addition, we have said that an abuse of discretion will
amount to harmless error where it does not affect an “ultimate decision” in the case.
Herman v. Workmen’s Comp. Appeal Bd. (Fayette Cnty.), 439 A.2d 834, 836 (Pa.
Cmwlth. 1981).
17
The voluminous record and many side issues in this case can easily distract
from the ultimate issue, which is whether either or both of Claimant’s injuries were
work related and thereby compensable under the Act. A brief review of the law
makes clear that—even if the WCJ abused his discretion in considering the Tioga
County Prison officers’ depositions, inclusion of that testimony amounted to
harmless error because it was not outcome determinative. For a physical injury to
be compensable, it must have occurred during the course and scope of employment
and must be causally connected to the employment. Jeannette Dist. Mem’l Hosp. v.
Workmen’s Comp. Appeal Bd. (Mesich), 668 A.2d 249, 252 (Pa. Cmwlth. 1995).
For a mental injury to be compensable under the Act, it must either be causally
related to a work-related physical injury (i.e., physical-mental), or causally related
to abnormal working conditions or a work-related psychic stimulus (i.e., mental-
mental). Ryan v. Workmen’s Comp. Appeal Bd. (Cmty. Health Servs.), 707 A.2d
1130, 1333-34 (Pa. 1998). The physical and physical-mental categories are clearly
not implicated here where the WCJ found that the physical injury (i.e., hip injury)
for which Claimant seeks compensation under the Act is not work related. (See FOF
¶ 292; Board Op. at 16.) Thus, in order for her anxiety disorder and panic attacks to
be compensable, Claimant would have to prevail under the mental-mental standard.
However, the WCJ found that no County employee engaged in harassing behavior.
(See FOF ¶¶ 295, 296; Board Op. at 17) (explaining that Claimant “failed to present
credible testimony to meet all the elements for either [the physical-mental or mental-
mental] burden”).) So, although the WCJ found that Claimant suffered from panic
attacks and anxiety, there was not credible evidence to support a finding that a work-
related psychic stimulus or abnormal working conditions in the course and scope
of her employment caused that injury. The treatment of Claimant’s husband while
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incarcerated in a different county and/or the veracity of the officers there does not
appear to have any bearing on whether abnormal working conditions existed at her
workplace, which would be necessary under the Act.
We do find it unclear why the WCJ would have permitted their testimony in
the first instance given its attenuated and tangential nature. However, even if it was
an abuse of discretion to consider the testimony, we conclude that it amounted to
mere surplusage, and thus harmless error, because it did not bear on the essential
issue in the case, namely, whether Claimant had suffered injuries compensable under
the Act.
Finally, to the extent we could understand Claimant’s argument on this point
to be that her counsel was ineffective for failing to press the subpoena issue further,
we would reiterate our reasoning above that such a decision can more readily be
explained as strategy than incompetence.
III. CONCLUSION
Based on the foregoing, we affirm the Order of the Board.
__________________________________________
RENÉE COHN JUBELIRER, President Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kelly A. Finck, :
Petitioner :
:
v. : No. 1029 C.D. 2022
:
Union County Commissioners :
(Workers’ Compensation Appeal :
Board), :
Respondent :
ORDER
NOW, December 18, 2023, the Order of the Workers’ Compensation Appeal
Board, dated July 22, 2022, is AFFIRMED.
__________________________________________
RENÉE COHN JUBELIRER, President Judge