A. Jacob v. WCAB (Cardone Industries, Inc. and Phoenix/Travelers Ins. Cos.)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Annamma Jacob, :
Petitioner :
:
v. : No. 1810 C.D. 2017
: Submitted: May 11, 2018
Workers’ Compensation Appeal :
Board (Cardone Industries, Inc. and :
Phoenix/Travelers Insurance :
Companies), :
Respondents :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: JULY 18, 2018
Annamma Jacob (Claimant) petitions for review from two orders of the
Workers’ Compensation Appeal Board (Board) affirming the decisions of a workers’
compensation judge (WCJ). The WCJ dismissed a petition for reinstatement
(Reinstatement Petition) and denied a claim petition (Second Claim Petition) filed
by Claimant. In the Reinstatement Petition and the Second Claim Petition, Claimant
alternately argued that on her return to work following her recovery from a prior
work injury, she incurred either a recurrence of the prior injury or a new work injury.
Upon review, we affirm the Board’s orders.
I. Background
The parties have a long history of litigation that began in 2003. The
same WCJ presided throughout. We summarize the pertinent facts as follows.
A. Original Work Injury
In September 2003, Claimant was employed by Cardone Industries,
Inc. (Employer) when her hair caught in a machine at work. WCJ’s Op., 9/27/16
(WCJ Reinstatement Op.), Finding of Fact (F.F.) No. 1. There was no visible injury
at that time. Id. However, Claimant subsequently stopped working and filed a claim
petition (First Claim Petition) alleging she sustained injuries to her head, neck, and
shoulder when she was pulled toward the machine. In a March 2006 decision, the
WCJ found Claimant incurred a work injury described as a “cervical strain.” Id.
The WCJ granted the First Claim Petition for a closed period, finding Claimant fully
recovered by March 2004. Id. Both the Board and this Court affirmed. Id., F.F. No.
2.
While the First Claim Petition was pending, Claimant returned to work
for Employer in June 2005. Id., F.F. No. 9. Employer provided light duty
employment and work hardening physical therapy. Id., F.F. No. 10. However,
Claimant stopped working in July 2005, alleging the work and the physical therapy
caused her too much pain. Id., F.F. No. 11. She did not at that time notify Employer
of any new work injury. WCJ’s Op., 5/13/16 (WCJ 2nd Claim Pet. Op.), F.F. No.
10(a). Claimant applied for and received Social Security disability benefits, on the
basis that she was totally disabled from any kind of work. Id., F.F. No. 5(b), (c).
B. Reinstatement Petition
More than two years later, in October 2007, Claimant filed the
Reinstatement Petition. WCJ Reinstatement Op., F.F. No. 3. She alleged her
2
disability from her original injury recurred when she attempted to return to work in
July 2005. Bd. Op., A16-1141,1 11/14/17 (Bd. Reinstatement Op.), at 1.
In July 2008, the WCJ dismissed the Reinstatement Petition. WCJ
Reinstatement Op., F.F. No. 4. The WCJ concluded the Reinstatement Petition was
barred by the doctrine of res judicata, finding Claimant was seeking to support the
Reinstatement Petition by expanding her original adjudicated injury. Id. On appeal,
the Board affirmed, but this Court vacated and remanded to the WCJ for
consideration of the Reinstatement Petition on the merits. Bd. Reinstatement Op. at
1.
In her September 2016 decision, the WCJ dismissed the Reinstatement
Petition on the merits, finding Claimant failed to meet her burden of proving a
recurrence of any disability resulting from her work injury. Id. The Board affirmed.
Claimant now petitions to this Court for review.
C. Second Claim Petition
While the Reinstatement Petition was pending, Claimant filed the
Second Claim Petition in January 2008. Bd. Op., A16-0602, 11/14/17 (Bd. 2nd
Claim Pet. Op.), at 2. As an alternative to the recurrence theory of the Reinstatement
Petition, in the Second Claim Petition, Claimant alleged she incurred new physical
and psychological work injuries in July 2005. Id.
1
The Board issued two substantially identical opinions and orders on the same date. In
A16-1141 (Bd. Reinstatement Op.), the Board affirmed the WCJ’s decision on the Reinstatement
Petition. In a separate decision, A16-0602 (Bd. 2nd Claim Pet. Op.), the Board affirmed the WCJ’s
decision on the Second Claim Petition, discussed below.
3
In the course of litigating the Second Claim Petition, Claimant alleged
bias by the WCJ and moved for her recusal. The WCJ denied the recusal motion in
December 2009, but certified the issue for immediate appeal. Id. at 8. The Board
affirmed. Id. The Board refused to certify the issue for immediate review by this
Court. We denied Claimant’s application for interlocutory review.
In June 2011, the WCJ denied the Second Claim Petition. Id. at 2.
Claimant appealed to the Board, which remanded. Id. The Board found the WCJ
failed to list certain documents as part of the record. Id. The Board also found the
WCJ failed to summarize and issue an express credibility determination concerning
Claimant’s testimony. Id. The Board directed the WCJ to correct the record list and
issue new findings and conclusions on remand, based on the entire record. Id.
In May 2016, the WCJ issued her decision on remand. Id. The WCJ
issued new findings and conclusions as directed, including credibility
determinations. She again denied the Second Claim Petition. Id. The WCJ found
Claimant failed to sustain her burden of proving any injury in July 2005 arising from
either her work for Employer or the work hardening physical therapy Employer
provided. Id. The Board affirmed. Claimant now petitions to this Court for review.
4
II. Issues
On appeal,2 Claimant lists seven pages of issues, which she discusses
at excessive length in her principal brief.3 However, all of the asserted errors fall
into three related categories. First, Claimant asserts the WCJ capriciously
disregarded evidence in rendering her credibility determinations. Second, Claimant
argues the WCJ should have recused herself because she displayed a bias against
Claimant and Claimant’s counsel. Third, Claimant contends the WCJ’s errors
foreclosed Claimant’s right to obtain an award of attorney fees for Employer’s
unreasonable contest.
Employer responds that the record contains substantial evidence in
support of the WCJ’s decisions. Employer further argues the record does not reveal
any bias by the WCJ. In addition, Employer contends Claimant waived her claims
in the Second Claim Petition by failing to provide timely notice to Employer of an
alleged new injury in 2005.
2
Our review in a workers’ compensation appeal is limited to determining whether the
WCJ’s findings of fact were supported by substantial evidence, whether an error of law was
committed, or whether constitutional rights were violated. Grimm v. Workers’ Comp. Appeal Bd.
(Fed. Express Corp.), 176 A.3d 1045 (Pa. Cmwlth. 2018) (en banc).
3
The argument section alone of Claimant’s principal brief is 50 pages long. An additional
23 pages (improperly numbered with Roman numerals) comprise the other substantive sections.
In its brief, Employer challenges Claimant’s compliance with the 14,000-word limit under
Pa. R.A.P. 2135(a). In response, Claimant’s counsel states the word count for the principal brief
is 13,958 words. However, this Court’s examination of the portions of Claimant’s brief includable
under Rule 2135(b) yielded a count of 15,093 words.
Notably, Claimant previously submitted a written application to extend the word limit. Our
President Judge denied the application and expressly directed Claimant to comply with the word
limit of Rule 2135. We remind Claimant’s counsel that Rule 2135 is mandatory and that all
applicable portions of appellate briefs must be included in word counts.
5
III. Discussion
A. Untimely Notice of New Injury (Second Claim Petition)
Under Section 311 of the Workers’ Compensation Act,4 77 P.S. §631,
Claimant was required to give Employer notice of her alleged work injury within
120 days of its occurrence. A previously injured claimant alleging a separate injury,
as opposed to a recurrence or aggravation of an original injury, must provide notice
of the separate injury. See Pa. Mines Corp./Greenwich Collieries v. Workmen’s
Comp. Appeal Bd. (Mitchell), 646 A.2d 28 (Pa. Cmwlth. 1994). Claimant bears the
burden of establishing that she gave timely notice of her alleged injury. A & J
Builders, Inc. v. Workers’ Comp. Appeal Bd. (Verdi), 78 A.3d 1233 (Pa. Cmwlth.
2013). Whether Claimant provided timely notice is a question of fact. Id. Thus,
this Court must affirm the WCJ’s finding concerning notice if the record contains
substantial evidence to support it. Id.
A witness for Employer testified that the first notice Employer received
concerning an alleged new injury in 2005 was Claimant’s filing of the Second Claim
Petition in January 2008. WCJ 2nd Claim Pet. Op., F.F. No. 10(a). Notably, even
then, the Second Claim Petition alleged only a repetitive work injury. Id. It did not
mention any alleged improper work hardening as a causative factor in any injury to
Claimant. Id.
The WCJ credited Employer’s evidence. She also found inferential
record support for the lack of notice. This included the absence of any medical note
excusing Claimant from returning to work for Employer, the lack of any
4
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
6
contemporaneous medical treatment, and Claimant’s failure to report any new injury
or recurrence during her September 2005 examination by Leonard Kamen, M.D.
(Claimant’s Medical Expert). Id., F.F. No. 19. Accordingly, the WCJ concluded
Claimant failed to provide timely notice of an alleged new injury for purposes of the
Second Claim Petition. Id.
Claimant points to record evidence she believes demonstrates timely
notice. This evidence includes three letters from her counsel to Employer in July
and August 2005, as well as Claimant’s testimony that she complained of pain during
the work hardening physical therapy Employer provided. We discern no merit in
this argument.
Contrary to Claimant’s assertion, none of the record evidence
establishes notice to Employer of any alleged new injury. In the first letter, counsel
stated Claimant missed work after July 15, 2005 “by reason of her work
injuries/treatment.” Certified Record, Reinstatement Petition (C.R.R.) Item No. 47,
Ex. C-Remand-33 (letter dated July 19, 2005). The second letter repeated that
statement. Id. (letter dated July 25, 2005). The third letter stated Claimant was
having “too much pain to immediately work any job” and was “still substantially
disabled.” Id. (letter dated August 5, 2005).
Nothing in any of these statements indicated Claimant suffered any new
injury. To the contrary, as the record reveals Claimant did not seek medical attention
immediately following her departure from work in July 2005, the reference to
“treatment” in the July letters could only have related to the course of treatment,
7
generally, that Claimant received for her original 2003 injury. See id. (letters dated
July 19 and 25, 2005). Similarly, the August letter’s statement that Claimant was
“still” disabled implied ongoing disability from the original injury, not a new one.
See id. (letter dated August 5, 2005).
Claimant also contends the WCJ erred by refusing to open the record
in the First Claim Petition, thereby preventing Claimant from submitting additional
evidence that would have demonstrated notice of a July 2005 injury. However, any
supplementary evidence Claimant might have submitted had the WCJ reopened the
record in the First Claim Petition could not have supported her notice argument
regarding the Second Claim Petition. By definition, any such evidence could only
have related to the 2003 injury, not a new injury that allegedly occurred in 2005.
The evidence concerning Claimant’s work hardening therapy in June
and July 2005 likewise reveals no notice by Claimant of any new injury. Claimant
argues she complained of pain throughout her therapy and that her condition
deteriorated over the period she was undergoing therapy. She fails to point to
anything in those facts that suggested to Employer that Claimant incurred a new
work injury.
Notably, Claimant’s original work injury was still in litigation in 2005,
pursuant to the First Claim Petition. Nothing in any of the evidence recited by
Claimant would have put Employer on notice that Claimant believed a new injury
occurred in June or July 2005.
8
Thus, the record contains substantial evidence supporting the WCJ’s
finding that Claimant failed to provide timely notice of a new injury in 2005. We
will not disturb that finding of fact. Accordingly, Claimant is barred from any
recovery sought in the Second Claim Petition.
Nevertheless, for completeness, and because the evidence and the
Board’s opinions generally related equally to the Reinstatement Petition and the
Second Claim Petition, we include the Second Claim Petition in our discussion of
the remaining issues on appeal.
B. Capricious Disregard of Evidence
Claimant insists the WCJ capriciously disregarded relevant competent
evidence in both the Reinstatement Petition and the Second Claim Petition
proceedings. Although Claimant’s arguments are somewhat unclear, she appears to
assert primarily that the WCJ should have disregarded all testimony of Employer’s
witnesses because of alleged conflicts in the testimony, both among various
Employer witnesses and between the direct and cross-examination testimony of each
witness. This argument lacks merit.
Capricious disregard of evidence occurs when a fact-finder deliberately
ignores relevant competent evidence. Williams v. Workers’ Comp. Appeal Bd.
(USX Corp.-Fairless Works), 862 A.2d 137 (Pa. Cmwlth. 2004). Considering and
rejecting evidence does not constitute capricious disregard. Id. Moreover, the fact-
finder does not capriciously disregard evidence merely because she does not
expressly discuss every piece of evidence in a written decision. The WCJ is not
9
required to make findings regarding every piece of evidence and every statement
made by every witness; she only needs to provide the crucial findings necessary to
allow the Board to review the decision. Id.; Pistella v. Workmen’s Comp. Appeal
Bd. (Samson Buick Body Shop), 633 A.2d 230 (Pa. Cmwlth. 1993).
It is the WCJ’s function, as the finder of fact, to resolve inconsistencies
in the evidence. Johnson v. Workers’ Comp. Appeal Bd. (Abington Mem’l Hosp.),
816 A.2d 1262 (Pa. Cmwlth. 2003). This includes resolution of conflicting
testimony by different witnesses, as well as internal inconsistencies within the
testimony of a single witness. Id. The WCJ may accept or reject, in whole or in
part, the testimony of any witness. A & J Builders. We are bound by those
credibility determinations. Id.
Claimant points to many individual pieces of evidence she contends the
WCJ improperly credited or failed to credit, and which she insists compel factual
findings different from those reached by the WCJ. However, Claimant’s factual
argument misapprehends the legal issue before this Court on appeal. Our inquiry is
not whether the record would support findings different from those made by the
WCJ, but rather, whether there is record support for the findings actually made. Id.
Here, the record contains ample support for the WCJ’s findings.
1. Claimant’s Credibility
The WCJ cited substantial record evidence to support her determination
that Claimant’s claim of a new or recurring injury was not credible. As discussed in
the next section, there was no objective medical evidence to support Claimant’s
10
subjective complaints. Further, at a physical examination with her prior treating
physician just a few days before Claimant stopped work in July 2005, she told him
she was comfortable doing the work Employer assigned her. WCJ Reinstatement
Op., F.F. No. 19; C.R.R., Item No. 33, Dep. of Dr. Leonard Kamen, 12/17/08
(Kamen Dep.), at 223; WCJ’s Hr’g, Notes of Testimony (N.T.), 1/7/09, at 49. The
WCJ found this statement by Claimant discredited her complaints of pain arising
from work. WCJ Reinstatement Op., F.F. No. 28.
When Claimant stopped working for Employer in July 2005, she had
no medical release from work. WCJ 2nd Claim Pet. Op., F.F. No. 5(c); N.T., 1/7/09,
at 5-53, 55. She did not seek medical treatment at that time. WCJ 2nd Claim Pet.
Op., F.F. No. 5(c); N.T., 1/7/09, at 56-57. She did not call off work as required by
her union bargaining agreement and did not file any grievance under the bargaining
agreement. WCJ 2nd Claim Pet. Op., F.F. No. 5(c); N.T., 1/7/09, at 34, 57, 59. Later
that summer, she underwent an EMG through her treating physician, and after
receiving normal results, she changed doctors and began seeing Claimant’s Medical
Expert. WCJ 2nd Claim Pet. Op., F.F. No. 5(c); N.T., 1/7/09, at 59-61.
Record evidence also undermined Claimant’s argument that the pain
she experienced was work-related. Notably, Claimant discontinued earlier work
hardening efforts through a prior treating doctor because of flare-ups in her
symptoms in April and May 2005, before her return to work for Employer. Id., F.F.
No. 5(c); WCJ Reinstatement Op., F.F. No. 19; Kamen Dep. at 222-23. In addition,
in the Second Claim Petition, Claimant alleged only a work injury from repetitive
activity, not an injury from Employer’s work hardening therapy. WCJ 2nd Claim
11
Pet. Op., F.F. No. 10(a). Claimant testified she was injured by both. N.T., 1/7/09,
at 18-19. However, Claimant’s Medical Expert conceded Claimant’s job in June
and July 2005 was self-paced, and self-paced work is not considered repetitive in
nature. Id., F.F. Nos. 6(f), 10(d); Kamen Dep. at 236; see also WCJ 2nd Claim Pet.
Op., F.F. Nos. 7, 13 (Claimant acknowledged Employer instructed her to work at her
own pace).
Claimant made inconsistent representations concerning her injuries that
further undermined her credibility. As stated above, in the Second Claim Petition,
Claimant alleged only a repetitive motion injury from her job, and not an injury from
her work hardening therapy. After first testifying that both repetitive motion and
work hardening injured her, Claimant later specifically testified that the work
hardening therapy was not what kept her from working after July 15, 2005. N.T.,
1/7/09, at 64-65. By contrast, during an independent medical examination by Dr. I.
Howard Levin (Employer’s Medical Expert) in October 2008, Claimant alleged a
2005 injury arising solely from work hardening efforts, and not from any repetitive
work activity. Id., F.F. No. 12(c); N.T., 6/26/09, at 12-13.
Notably, Claimant filed no workers’ compensation petition in the
summer of 2005 after leaving her job with Employer. When she first saw Claimant’s
Medical Expert in September 2005, she did not mention any injury in July of that
year arising from either her work for Employer or the work hardening physical
therapy. WCJ 2nd Claim Pet. Op., F.F. No. 6(e); Kamen Dep., Ex. C Kamen-2
report dated September 7, 2005. However, she filed a complaint with the
Pennsylvania Human Relations Commission (PHRC) in August 2005. Certified
12
Record, Second Claim Petition (C.R. CP2), Item No. 42. Although her 2003 work
injury arose from pulling by the machine when her hair was caught, Claimant
inconsistently alleged in her PHRC complaint that she suffered a “spinal cord
compression” in the 2003 work incident.5 WCJ 2nd Claim Pet. Op., F.F. Nos. 7, 13,
F.F. Nos. 5(c), 6(d); WCJ’s Hr’g, 1/7/09, at 62-63. Claimant’s Medical Expert
acknowledged he never treated Claimant for that condition because she did not have
it. WCJ 2nd Claim Pet. Op., F.F. Nos. 7, 13, F.F. No. 6(f); Kamen Dep. at 185.
In addition, and of significance, Claimant suffered new injuries
unrelated to her employment in an automobile accident on August 24, 2007. WCJ
2nd Claim Pet. Op., F.F. No. 7. However, she did not tell Claimant’s Medical Expert
about the accident when she saw him a few days later. WCJ Reinstatement Op., F.F.
No. 19; WCJ 2nd Claim Pet. Op., F.F. No. 6(c) n.17; see also Kamen Dep., Ex. C
Kamen-2, reports dated 8/28/07 (no mention of intervening motor vehicle accident),
10/22/07 (medical history unchanged). In fact, Claimant treated with different
medical providers in connection with the accident. WCJ 2nd Claim Pet. Op., F.F.
Nos. 5(c) n.16; No. 6(c) n.17; Dep. of Dr. I. Howard Levin, 3/18/10 (Levin Dep.), at
74-87, Exs. D Levin-4, 7, 8, 9. She did not disclose the accident to either Claimant’s
Medical Expert or Employer’s Medical Expert, even though she filed a separate civil
tort action alleging permanent serious injuries to her head, neck, back, arms, legs,
and body resulting from that accident.6 WCJ Reinstatement Op., F.F. No. 20; WCJ
5
The Pennsylvania Human Relations Commission complaint was closed administratively
without action in November 2007. WCJ’s Op., 5/13/16 (WCJ 2nd Claim Pet. Op.), F.F. No. 10(d).
6
This claim was at odds with Claimant’s assertion, in her brief in this appeal, that her
injuries from the automobile accident were confined to the opposite side of her neck and the
opposite shoulder from her work injury.
13
2nd Claim Pet. Op. F.F. Nos. 7, 12(c); N.T., 6/26/09, at 8 (Claimant told Employer’s
Medical Expert she was seeing only two doctors, Claimant’s Medical Expert and her
family doctor), 11-13 (Claimant told Employer’s Medical Expert she suffered no
head or neck trauma, other than Employer’s physical therapy, since 2004); Levin
Dep. at 74-87, Exs. D Levin-4, 7, 8, 9. In her sworn testimony before the WCJ,
Claimant failed to reveal the accident and her subsequent medical treatment in
response to specific questions by Employer’s counsel asking her to list all doctors
who had treated her for any reason since 2004. WCJ 2nd Claim Pet. Op., F.F. Nos.
7, 13; N.T., 1/7/09, at 8-13. Similarly, she apparently did not disclose her workers’
compensation claims in litigating the automobile accident, as she submitted a benefit
application to Allstate Insurance in September 2007 in connection with the accident,
in which she specifically denied any eligibility for workers’ compensation benefits.
WCJ 2nd Claim Pet. Op., F.F. Nos. 7, 13; Levin Dep., Ex. D Levin-9.
Claimant suggests the automobile accident is irrelevant to her
credibility because it occurred two years after she stopped working for Employer.
This argument misses the point. As discussed above, the WCJ found as a fact that
Claimant did not provide notice to Employer of any alleged 2005 new injury until
she filed her Second Claim Petition in January 2008. That was after the automobile
accident. The timing of the Reinstatement Petition and the subsequent Second Claim
Petition, the deliberate separation of the medical providers treating Claimant in
relation to her workers’ compensation claims and her tort claims, and her failure to
disclose either claim to the parties and medical providers involved in the other claim,
all substantially undermine Claimant’s credibility, both in general and specifically
in connection with her claims against Employer.
14
2. Credibility of Claimant’s Medical Expert
Claimant’s Medical Expert is board-certified in physical medicine and
rehabilitation. WCJ 2nd Claim Pet. Op., F.F. No. 6(a). Claimant’s Medical Expert
offered a diagnosis of brachial plexus injury, cervical disc disease, and chronic pain
syndrome with depressive features, as of his first examination of Claimant in
September 2005. Id., F.F. No. 6(b); Kamen Dep. at 54-55. The WCJ rejected his
opinion as not credible and not supportive of Claimant’s petitions for a number of
reasons.
Claimant’s Medical Expert opined Claimant was unable to work as of
September 2005. Id., F.F. No. 6(d); Kamen Dep. at 67-68. However, he could not
support Claimant’s assertion of disability in July 2005 because he did not examine
her at that time. Id.
A new MRI in August 2005 showed no change from an earlier study
and revealed no acute trauma to Claimant’s neck. WCJ Reinstatement Op., F.F. No.
18; Kamen Dep. at 190, 194. Electronic imaging in September 2005, ordered
specifically to support Claimant’s Medical Expert’s diagnosis of brachial plexus,
showed none. WCJ Reinstatement Op., F.F. No. 18; WCJ 2nd Claim Pet. Op., F.F.
No. 6(f); Kamen Dep. at 191, 194. Although Claimant’s Medical Expert criticized
how that imaging was performed, he did not order another one. WCJ Reinstatement
Op., F.F. No. 18; WCJ 2nd Claim Pet. Op., F.F. No. 6(f); Kamen Dep. at 192.
Claimant’s Medical Expert acknowledged there were no diagnostic study results to
support Claimant’s subjective complaints. WCJ Reinstatement Op., F.F. No. 18;
Kamen Dep. at 200-01.
15
The WCJ further rejected Claimant’s Medical Expert’s opinion to the
extent it was based on information provided to him by Claimant, inasmuch as the
WCJ rejected Claimant’s evidence as itself not credible. WCJ Reinstatement Op.,
F.F. No. 31. This was within the WCJ’s discretion. See Jensen v. Workers’ Comp.
Appeal Bd. (Pleasant Valley Manor) (Pa. Cmwlth., No. 23 C.D. 2016, filed October
31, 2016), 2016 WL 6407291 (unreported).
3. Credibility of Employer’s Witnesses
Claimant argues that various witnesses for Employer contradicted
themselves and each other in their testimony. However, in light of the WCJ’s
determination that Claimant and her medical witness were not credible, Claimant
could not sustain her burden of proof, regardless of whether Employer’s witnesses
were credible. See Leon E. Wintermyer, Inc. v. Workers’ Comp. Appeal Bd.
(Marlowe), 812 A.2d 478 (Pa. 2002) (unburdened party has no obligation to present
any proof; adjudication may rest on agency’s disbelief of claimant’s evidence); Hills
Dep’t Store No. 59 v. Workmen’s Comp. Appeal Bd. (McMullen), 646 A.2d 1272
(Pa. Cmwlth. 1994) (once petitioner’s evidence was rejected as not credible,
petitioner failed to meet burden of proof).
Nonetheless, the WCJ provided extensive findings in support of her
credibility determinations regarding Employer’s witnesses. Most significantly,
concerning the conflicting medical evidence, the WCJ set forth at length the medical
evidence from Employer on which she relied and which she credited over that
offered by Claimant.
16
Employer’s Medical Expert is a board certified neurologist with
expertise in the performance and interpretation of electrodiagnostic tests, as well as
in the diagnosis and treatment of cervical strains and brachial plexus injuries. WCJ
2nd Claim Pet. Op., F.F. No. 12(a); N.T., 6/26/09, at 4; Ex. D-13. Having examined
Claimant earlier in connection with the First Claim Petition, he performed a repeat
examination in October 2008. WCJ 2nd Claim Pet. Op., F.F. No. 12(c); N.T.,
6/26/09, at 6.
Employer’s Medical Expert testified there were no objective clinical
findings or diagnostic studies to support Claimant’s complaints of pain. WCJ 2nd
Claim Pet. Op., F.F. Nos. 12(c), (f); N.T., 6/26/09, at 17-18. He found no evidence
of brachial plexopathy. WCJ 2nd Claim Pet. Op., F.F. No. 12(c); N.T., 6/26/09, at
18, 24. Employer’s Medical Expert opined that any restriction of Claimant’s range
of motion was a matter within her own control. WCJ 2nd Claim Pet. Op., F.F. No.
12(c); N.T., 6/26/09, at 24-25. He saw no evidence of any new injury or aggravation
of a previous injury. WCJ 2nd Claim Pet. Op., F.F. No. 12(f); N.T., 6/26/09, at 22,
29. Employer’s Medical Expert concluded there was no need for any further medical
treatment. WCJ 2nd Claim Pet. Op., F.F. No. 12(f); N.T., 6/26/09, at 28, 34. He
suggested the ongoing treatment Claimant received from her own doctor only served
to prolong her subjective symptoms by encouraging inappropriate pain and illness
behaviors. WCJ 2nd Claim Pet. Op., F.F. No. 12(f); N.T., 6/26/09, at 32-34.
Employer’s Medical Expert also criticized the opinions offered by
Claimant’s Medical Expert. Employer’s Medical Expert found no evidence to
support an October 2005 diagnosis of post-traumatic cervical dystonia by Claimant’s
17
Medical Expert. WCJ 2nd Claim Pet. Op., F.F. No. 12(g); N.T., 6/26/09, at 41-43.
He also disagreed with the diagnosis of brachial plexus stretch injury made by
Claimant’s Medical Expert in connection with Claimant’s 2003 injury. WCJ 2nd
Claim Pet. Op., F.F. No. 12(g); N.T., 6/26/09, at 43-45. Further disagreeing with
Claimant’s Medical Expert, Employer’s Medical Expert opined Claimant did not
sustain any new injury or exacerbation as a result of either repetitive work activity
or work hardening physical therapy in July 2005. WCJ 2nd Claim Pet. Op., F.F. No.
12(h); see generally N.T., 6/26/09.
The WCJ explained she found the medical opinion of Employer’s
Medical Expert credible because of both his testimony and his demeanor. WCJ 2nd
Claim Pet. Op., F.F. No. 18. She concluded his opinion was both well-reasoned and
supported by objective clinical findings. Id. Similarly, the WCJ found Employer’s
other witnesses credible both because of their demeanor and because their testimony
was supported by documentation in the record. Id., F.F. Nos. 14-16.
As the foregoing discussion demonstrates, the WCJ cited substantial
record evidence in support of her factual determinations. Consequently, we will not
disturb the WCJ’s findings of fact.
C. Recusal
Claimant filed the motion for recusal solely in connection with the
Second Claim Petition. She did not file a similar motion relating to the
Reinstatement Petition. Contrary to Claimant’s suggestion, nothing in the record
indicates the two petitions were ever consolidated. Because we agree with the WCJ
18
that the Second Claim Petition is barred because of untimely notice of the alleged
injury, the recusal motion is moot. Even if it were not, we would affirm its denial.
Recusal of a WCJ is required only if there is a substantial reasonable
doubt of her ability to preside impartially. Tindal v. Workers’ Comp. Appeal Bd.
(City of Phila.), 799 A.2d 219 (Pa. Cmwlth. 2002). Adverse rulings do not
demonstrate bias. Dow v. Workers’ Comp. Appeal Bd. (Household Fin. Co.), 768
A.2d 1221 (Pa. Cmwlth. 2001). Moreover, the WCJ has broad discretion in making
such rulings, as well as in determining the time allowed for witness examinations.
Kope v. Workmen’s Comp. Appeal Bd. (Borg Warner Corp.), 510 A.2d 1294 (Pa.
Cmwlth. 1986). A WCJ’s decision on a recusal motion is also discretionary and will
not be overturned absent an abuse of that discretion. Tindal.
The Board correctly found many of Claimant’s complaints alleging bias
by the WCJ fell into the categories of evidentiary rulings and limitations on the
length of hearings and witness examinations. We find no abuse of discretion in the
evidentiary rulings.7 Regarding the time limitations imposed by the WCJ, as the
Board observed in its opinion on appeal of the WCJ’s recusal decision, this case
7
While this appeal was pending, Claimant filed an application for relief titled “Motion for
Order to Assure a Full Record” (Motion). Claimant asserts the WCJ’s 2011 decision, which the
Board remanded, did not include a list of exhibits. Claimant asks us to direct the Board to
determine whether it transmitted those exhibits to this Court, and if not, to transmit them. Claimant
contends those exhibits would reveal inconsistent evidentiary rulings by the WCJ.
The 2011 decision is not involved in this appeal. Any alleged inconsistency that may have
occurred in the admission of evidence in connection with a remanded decision is not relevant here.
Moreover, as the Petitioner, Claimant was responsible to review the certified record and assure its
completeness prior to submitting the case for a decision by this Court.
The Motion is denied. Employer’s request for fees in connection with opposing the Motion
is also denied.
19
involved a large number of hearings and generated a massive record. The Board,
after reviewing that record, concluded the WCJ allowed the parties sufficient time
to present their cases, and any time limits imposed were reasonable. We agree.
Claimant asserts the WCJ displayed bias by anticipating and inviting
objections by Employer’s counsel and striking or denying evidence on her own
motion. The Board noted the proceedings were very lengthy, and the WCJ may have
simply attempted to move them along. We agree with the Board that the WCJ’s
conduct, while not encouraged, did not support a finding of bias.
Claimant additionally contends the WCJ displayed personal animus
toward Claimant’s counsel. The Board disagreed. Indeed, the Board concluded
Claimant’s counsel behaved in a condescending and insulting manner toward the
WCJ, who generally attempted to avoid engaging Claimant’s counsel in bickering
and argument during the proceedings.8 This Court agrees with the Board that the
WCJ did not lose her composure to an extent suggesting bias.
Claimant also argues the WCJ improperly issued different factual
findings on remand of the Second Claim Petition. Claimant appears to suggest this
was both legally impermissible and further suggestive of bias by the WCJ. However,
the Board specifically instructed the WCJ to issue new findings on remand. Further,
because the Board vacated the prior decision, new findings were necessary. Jensen.
8
The Board commented: “The WCJ is to be commended, not only for her restraint in
dealing with innumerable objections and contentious counsel, but also for conscientiously,
professionally, and thoroughly addressing the 36-page Motion to Recuse, and for not taking the
easy road by simply acquiescing in that motion.” Bd. Op., No. A09-2235, 11/4/10, at 6.
20
Where a remand order requires a WCJ to render a new decision based on all the
evidence, the WCJ does not exceed the scope of the remand order by making
different credibility determinations on remand. A & P Tea Co. v. Workmen’s Comp.
Appeal Bd. (Giglio), 539 A.2d 51 (Pa. Cmwlth. 1988).
The WCJ did not abuse her discretion in denying the recusal motion.
D. Unreasonable Contest
Finally, Claimant asserts the WCJ’s errors prevented Claimant from
obtaining an award of attorney fees based on Employer’s unreasonable contest. In
light of our disposition of Claimant’s other issues, we need not reach the issue of
unreasonable contest. See Cty. of Allegheny v. Workers’ Comp. Appeal Bd.
(Parker), 151 A.3d 1210 (Pa. Cmwlth. 2016), vacated in part on other grounds, 177
A.3d 864 (Pa. 2018) (claimant not entitled to attorney fee award for unreasonable
contest where employer prevailed).
IV. Conclusion
Based on the foregoing, this Court affirms the Board’s decisions on the
Reinstatement Petition and the Second Claim Petition.
ROBERT SIMPSON, Judge
21
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Annamma Jacob, :
Petitioner :
:
v. : No. 1810 C.D. 2017
:
Workers’ Compensation Appeal :
Board (Cardone Industries, Inc. and :
Phoenix/Travelers Insurance :
Companies), :
Respondents :
ORDER
AND NOW, this 18th day of July, 2018, the orders of the Workers’
Compensation Appeal Board are AFFIRMED.
Further, Petitioner’s Motion for Order to Assure a Full Record is
DENIED, and Respondents’ responsive request for assessment of attorney fees is
DENIED.
ROBERT SIMPSON, Judge