M. Staton v. WCAB (System One Holdings, LLC)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael Staton, :
Petitioner :
:
v. : No. 1648 C.D. 2019
: Submitted: May 1, 2020
Workers’ Compensation Appeal Board :
(System One Holdings, LLC), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: December 14, 2020
Michael Staton (Claimant) petitions for review of the Workers’
Compensation Appeal Board’s (Board) Order that affirmed the Decision of a
Workers’ Compensation Judge (WCJ) granting Claimant’s Claim Petition in part
and directing System One Holdings, LLC1 (Employer) to pay Claimant temporary
total disability benefits and medical benefits, but terminating those benefits as of
November 9, 2016, based on Claimant’s full recovery from that work-related
injury. The WCJ authorized Employer to take a credit for any workers’
compensation (WC) benefits it had paid to Claimant, a New Jersey resident, under
that state’s WC laws. The WCJ granted Claimant’s Penalty Petition, imposing a
1
Employer is also referred to as Joule Systems in the record.
$500.00 penalty due to Employer not timely issuing required documentation. The
WCJ further found Employer’s contest of the Claim Petition unreasonable until
November 9, 2016, the date Employer obtained evidence that Claimant fully
recovered from his work-related injury, and, therefore, awarded Claimant
attorney’s fees in the amount of $1,050.00. On appeal, Claimant argues the Board
erred in affirming because: (1) the Board did not properly perform its appellate
review; (2) the WCJ abused her discretion and violated Claimant’s due process
rights in the handling of the proceedings; (3) the WCJ capriciously disregarded
overwhelming evidence and made credibility determinations and factual findings
that were unsupported by the entire record; (4) the WCJ abused her discretion by
imposing a penalty that was too low in light of Employer’s violations; and (5) the
WCJ arbitrarily reduced Claimant’s counsel’s quantum meruit fee. Upon careful
review and discerning no error of law, abuse of discretion, or constitutional
violation, we affirm.
I. Background
We begin by noting that there is no dispute as to what occurred to Claimant
in this matter: on August 25, 2016, he struck his head on a pipe while attempting
to escape from a burst water pipe while he was working for Employer at a location
in Bristol, Pennsylvania. Employer issued an incident report stating that Claimant
“jammed” his “neck/head” as a result of his “turn[ing] and r[unning] into an I[-
b]eam and was knocked to the ground jamming neck back [sic]” and that he was
wearing a hard hat at the time. (Reproduced Record (R.R.) at 19a-21a.) The
incident report further noted Claimant was authorized to receive and did receive
medical treatment at the emergency room of Aria Health Hospital (Aria Health).
(Id. at 20a.)
2
A. Proceedings before the WCJ.
Claimant filed the Claim Petition on September 12, 2016, asserting he
sustained disabling work-related injuries in the nature of “head, neck shoulder
down right arm [sic], [and an] aggravation of pre[]existing condition.” (Id. at 24a-
25a.) Employer timely filed an Answer denying the material allegations but
“averr[ing] that Claimant is presently receiving [WC] benefits under the New
Jersey [WC] Act.[2]” (Id. at 30a-31a.) The Claim Petition and Penalty Petition
were assigned to the WCJ, who held hearings.
At an October 26, 2016 hearing, the WCJ indicated, based on off-the-record
discussions between the parties, that “there[ was] no dispute amongst the parties
that Pennsylvania has jurisdiction and that the injury is, in fact, compensable based
on the fact that it’s been picked up in New Jersey.” (Id. at 5a.) The WCJ further
stated Employer would obtain an examination of Claimant to determine “whether
[] Employer [was] in a position to agree to Claimant’s allegation that [it] somehow
[would] accept the claim in Pennsylvania or whether there’s going to be an
ongoing dispute.” (Id.) Finally, following an off-the-record discussion, the WCJ
indicated Claimant was now “asserting a claim for unreasonable contest” as a part
of his Claim Petition. (Id.)
After the October 26, 2016 hearing, Claimant filed the Penalty Petition on
October 28, 2016, asserting Employer violated Pennsylvania’s Workers’
Compensation Act3 (Act), rules, or regulations by failing to timely accept or deny
the claim, timely pay benefits, or pay Claimant the correct amount of benefits. (Id.
at 35a.) Employer filed an Answer to the Penalty Petition, denying the material
2
34 N.J. St. 34:15-1-34:15-146.
3
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
3
allegations and asserting “[t]his matter was timely accepted and paid in New Jersey
where jurisdiction exists based on residence of Claimant, domicile of Employer[,]
and contract of hire” and Claimant’s “[b]enefits were paid at the maximum rate in
New Jersey.” (Id. at 39a.) It was after this hearing that Claimant filed his Penalty
Petition. In relation to his unreasonable contest claim, Claimant submitted a
request, dated October 28, 2016, for the WCJ to issue a subpoena to compel the
testimony of his claim representative with Employer’s insurer. (Id. at 42a.)
Employer objected because “Claimant had no burden of proof with respect to
unreasonable contest[s]” and was asking to obtain evidence on an issue that is not a
part of his case with the “true intention [of] badger[ing] the claim representative.”
(Id. at 47a-48a.) The WCJ denied the subpoena request by letter dated November
1, 2016. (Id. at 49a.)
Another hearing was held on February 22, 2017, at which the WCJ
explained that, at the first hearing:
[she] was advised by Claimant’s counsel that this is a medical issue
only and that Claimant’s testimony would not be germane to the case
based on the fact that the injury was acknowledged, in part, through
New Jersey law. So we know that the injury took place, we know the
nature of the injury somewhat.
While there might be a dispute as to the additional injuries that may
have incurred, we do have an acknowledgment that there was money
that exchanged hands based upon the acknowledgment in New Jersey.
I understand that going forward we understood there to be a
jurisdictional issue here. [Employer’s counsel] has stated off the
record that there is no jurisdiction issue. He concedes Pennsylvania
jurisdiction of the case and now we can move forward on the issue of
ongoing disability associated with this injury of August 25th, 2016.
(Id. at 12a-13a.) Also at this hearing, it was determined Claimant would testify by
deposition, “be examined by a doctor who [could] better assess the head trauma
4
sustained,” and would move forward with his claims for head injuries with his
expert, Kishor Patil, M.D., and for his orthopedic injuries with Zohar Stark, M.D.
(Id. at 13a.) The WCJ authorized Employer to obtain an additional independent
medical examination (IME) based on Claimant’s head trauma claims, which was to
occur “in the next 30 days,” and Employer indicated it was scheduled for February
27, 2017. (Id. at 13a, 15a.) The WCJ relisted the matter for Claimant to present
his case in chief, including his deposition and his medical evidence, in 90 days.
(Id. at 14a.)
Claimant testified by trial deposition on March 24, 2017,4 describing: his
work duties; the events of August 25, 2016, including that he had lost
consciousness; the treatment he sought through the present, including at both Aria
Health and Cooper University Hospital Department of Emergency Medicine
(Cooper Hospital); and the symptoms he experienced and continues to experience.
Claimant denied having told anyone at Aria Health on August 25, 2016, that he did
not lose consciousness. (Id. at 58a-59a.) He said he was unable to perform his
full-duty work following the injuries due to both physical and cognitive
limitations, including pain in his lower and mid back, neck, and arm, numbness in
his right arm, and inability to think clearly. (Id. at 64a-66a, 82a.) Claimant
acknowledged having ongoing medical issues with and receiving treatment for his
lower back and neck with Joan O’Shea, M.D. Claimant stated he received medical
treatment from Dr. O’Shea for his arm and neck in May 2016, at which time he
said he was feeling 85% better, no further medical treatment was scheduled, and he
felt he could perform his full-duty position without restrictions. (Id. at 63a-64a.)
4
Claimant’s deposition is found at pages 51a-123a of the Reproduced Record and is
summarized in finding of fact 2.
5
Claimant described his current symptoms as being a lump in his neck, pain in the
neck that shoots down into his right arm, and pain in his lower and mid back. (Id.
at 66a-67a.) He acknowledged that Employer paid him WC benefits in New Jersey
in the amount of “almost” $3,500.00 per month, but stated there was no indication
as to how long those benefits would last and he had last received a check on
February 28, 2017. (Id. at 77a-78a.)
On cross-examination, Claimant agreed his medical reports from May 26,
2016, reflected that he “complain[ed] of continued lower back pain extending to
the right leg with associated numbness” and “neck pain extending to the right arm
with associated headaches which [was] causing him to have trouble sleeping.” (Id.
at 90a.) That medical report also stated “[h]e fe[lt] as if his whole spine [was]
dead” and “[h]is symptoms seem[ed] to be worsening,” but Claimant indicated in
his deposition he did not believe that they were worsening at that time. (Id. at 91a,
93a.) Claimant agreed past medical records revealed he had been taking pain
medication “for ages,” including 800 mg of Ibuprofen 2 to 4 times a day, and he
could not remember when he had an epidural steroid injection in his back or neck
but remembered, when prompted, that he had a cervical injection on June 25, 2016.
(Id. at 93a, 96a-97a, 101a.) He also acknowledged that he rated his pain level as a
7 to 8 out of 10 and complained of “neck pain that radiated or extended into the
back of [his] head and [his] right shoulder blade and [his] right upper extremity,”
“stiffness, . . . spasm[,] . . . restricted range of motion in [his] neck,” and
“numbness and tingling in [his] right hand” during a June 7, 2016 doctor’s
appointment. (Id. at 98a-99a.)
6
Claimant subsequently testified before the WCJ on August 22, 2017.5 He
described the August 25, 2016 incident in further detail and stated he had been
feeling better during the three-month period before the incident. Claimant
admitted, however, he received a pain injection in his back on July 8, 2016. (Id. at
699a, 703a.) He again acknowledged receiving WC benefits in New Jersey, with
the last payment being in March 2017. (Id. at 701a.)
In support of his orthopedic injuries, Claimant presented the deposition
testimony of Dr. Stark, an orthopedic surgeon who first examined Claimant on
September 13, 2016.6 Dr. Stark testified that Claimant provided a history of
headaches, neck pain, numbness and tingling in his upper extremities, low back
pain radiating into his right knee and tingling in his right thigh, lower extremity
weakness, and left thigh numbness. Based on his examination of Claimant and
Claimant’s medical records, Dr. Stark diagnosed Claimant with right shoulder
contusion, a cervical spine sprain and strain, cervical radiculopathy, an aggravation
to “pre[]existing symptomatology related to disc disease and joint disease of
[Claimant’s] cervical spine,” and lumbar spine sprain “with aggravation of
pre[]existing symptomatology related to [Claimant’s] pathology in the lumbar
spine.” (WCJ Decision, Finding of Fact (FOF) ¶ 5b; R.R. at 158a.) Dr. Stark
related these injuries to the August 25, 2016 work incident. Dr. Stark did not
examine Claimant again until January 24, 2017, at which time he reviewed an
electromyography (EMG) test performed by Dr. Patil that revealed, according to
5
Claimant’s testimony before the WCJ is found at pages 698a-706a of the Reproduced
Record and is summarized in finding of fact 4.
6
Dr. Stark’s deposition is found at pages 145a-203a of the Reproduced Record and is
summarized in finding of fact 5.
7
Dr. Stark, right-sided radiculopathy at C5, C6, and C7, as well as bilateral
radiculopathy at L4-5.
On cross-examination, Dr. Stark acknowledged Claimant’s ongoing
treatment with Dr. O’Shea and that Claimant’s hospital records from August 25,
2016, indicated only injuries to Claimant’s neck and right arm and that Claimant
was discharged with a diagnosis of neck pain and parethesias, with no diagnoses
related to Claimant’s head, low back, or shoulders. Dr. Stark compared an August
25, 2016 magnetic resonance imaging (MRI) test to a prior MRI of Claimant
performed on February 12, 2016, and observed that the findings relating to
Claimant’s C3-4 disc appeared on both tests and that Claimant had substantial
preexisting lumbar spine pathology. After reviewing Dr. O’Shea’s medical records
from May 26, 2016, Dr. Stark agreed that the complaints Claimant made during the
September 13, 2016 examination were the same as those in Dr. O’Shea’s records
and for which Claimant had undergone cervical epidural injections prior to August
25, 2016. Dr. Stark also agreed that an EMG study from March 2016
demonstrated right-sided C5 radiculitis, which is what Claimant presented with in
September 2016.
In support of his neurologic claims, Claimant presented the deposition
testimony of Dr. Patil, who first examined Claimant on August 30, 2016.7
Following this examination, Dr. Patil indicated he detected a “6[th] nerve palsy”
and diagnosed Claimant with “post-traumatic cervical strain and sprain syndrome
with cervical entrapment, radicular features bilaterally, post[-]traumatic
lumbosacral strain/sprain, post-concussion syndrome, and post[-]traumatic
7
Dr. Patil’s deposition is found at pages 214a-263a of the Reproduced Record and is
summarized in finding of fact 6.
8
cephalgia.” (FOF ¶ 6a; R.R. at 227a.) Dr. Patil related all of these to the August
25, 2016 incident. He subsequently performed an EMG and “brain mapping
study,” the former showing right C7 radiculopathy and the latter showing
“abnormality in the left mid-temporal area.” (FOF ¶ 6b; R.R. at 233a.) On cross-
examination, Dr. Patil admitted the 6th nerve palsy, which would reflect a
considerable injury, was not detected in any other examinations of Claimant. He
acknowledged that Claimant did not inform him of any prior symptomatology,
including right arm and hand numbness, but was able to glean from Claimant’s
medical records that Claimant had preexisting cervical radiculopathy for which
Claimant received treatment from Dr. O’Shea. Dr. Patil did not review any MRIs
performed before the August 25, 2016 incident.
Claimant also presented the August 25, 2016 emergency room records from
Aria Health and August 26, 2016 records from Cooper Hospital.8 Aria Health’s
records revealed, the WCJ found, that Claimant’s discharge diagnosis was “neck
pain, paresthesia.” (FOF ¶ 7a.) A body chart showed Claimant complained of
neck and right arm pain, with no other body area marked. The records showed
Claimant had a history of back pain and neuropathy and was taking Ibuprofen and
Gabapentin. The records indicated that “patient did not have loss of
consciousness” and “denie[d] back pain, bladder or bowel incontinence, bladder or
bowel retention, vision changes, speech changes, dizziness, light headiness [sic],
focal weakness, nausea, headache or any other symptoms.” (Id. ¶ 7d.) Cooper
Hospital’s records showed, the WCJ found, that Claimant reported a history of
chronic right radicular and neck pain for which he was receiving pain management
8
These medical records are found at pages 265a-319a of the Reproduced Record and are
summarized in findings of fact 7 and 8.
9
and epidurals. As for the events of August 25, 2016, Cooper Hospital’s records
indicated Claimant “lost consciousness ‘for a few seconds’” and was having
worsening blurring vision, dizziness, headache, right extremity pain and
paresthesia. (Id. ¶ 8a.) Claimant’s “systems” review noted “negative for myalgias,
back pain, joint swelling, arthralgias, gait problem[,] and neck pain,” “positive for
numbness and headaches,” and “[n]egative for dizziness, syncope, weakness[,] and
light headiness [sic].” (Id. ¶ 8b.) Claimant’s physical examination reflected
Claimant was
alert and oriented to person, place and time. He ha[d] normal
strength. He [was] not disoriented. No cranial nerve deficit or
sensory deficit. He exhibit[ed] normal muscle tone. Coordination and
gait, normal. No focal neural deficit. Reflex [was] normal and
symmetric bilaterally. Cerebellar coordination testing intact including
finger to nose and shin to heel. Upper extremity and lower extremity
strength 5/5 bilaterally. Sensation to touch decreased left upper
extremity compared to right. Normal gait.
(Id. ¶ 8c.)
Employer presented the testimony of its Safety Director and a Co-Worker
who was working with Claimant on August 25, 2016.9 Safety Director explained
Claimant called him on August 25, 2016, to report what happened and that
Claimant had “jammed his neck” but did not report any injury. (Id. ¶ 9a.) Safety
Director completed the Incident Report based on that conversation and allowed
Claimant to edit the document to include only “jammed neck/head.” (Id. ¶ 9b.)
Co-Worker testified that after the pipe broke, he observed “Claimant sitting on the
9
These witnesses’ testimonies are found at pages 659a-697a of the Reproduced Record
and are summarized in findings of fact 9 and 10(1). The WCJ’s Decision contains two findings
of fact 10, as such we refer to the first as 10(1).
10
ground, leaning against a column,” and another co-worker helped Claimant up.
(Id. ¶ 10(1)b.)
In opposition to Claimant’s orthopedic claims, Employer offered the
deposition testimony of Richard G. Schmidt, M.D., a board-certified orthopedic
surgeon, who performed an IME of Claimant on November 9, 2016.10 At that
examination, Claimant reported he had been “knocked unconscious and fell into a
pool of water” and complained of a neck injury with pain radiating into his right
arm, right arm numbness, and numbness in his right thigh. (Id. ¶ 10a, 10b.)
Claimant denied having any complaints in his lower back or that he injured his
lower back on August 25, 2016. Claimant told Dr. Schmidt that Claimant had
jammed his neck five or six years before the current injury but the symptoms from
the prior injury had resolved. Dr. Schmidt indicated his review of various
diagnostic tests revealed the following: a September 27, 2009 MRI showed
significant degenerative changes to the cervical spine; Claimant’s February 12,
2016 and October 19, 2016 lumbar MRIs showed Claimant’s condition as the
same; and MRI films of Claimant’s cervical spine from September 27, 2009, and
December 15, 2015, revealed chronic changes at C3 through C7, and Claimant’s
August 25, 2016 cervical MRI was consistent with these past MRIs. Dr. Schmidt
also reviewed Claimant’s medical records and noted the following. Claimant
complained to Dr. O’Shea in January 2016 of unbearable pain, with “right-sided
pressure in his head and headaches[,] . . . numbness in his right hand, [and] pain
down the right arm.” (R.R. at 392a.) In March 2016, Claimant complained of
neck, low back, and right arm pain, and in May 2016 of arm and leg pain,
Dr. Schmidt’s deposition is found at pages 357a-435a in the Reproduced Record and is
10
summarized in finding of fact 10.
11
headaches, extremity numbness, back pain radiating into his right leg, and neck
pain radiating into his right arm. Claimant told Dr. O’Shea in May 2016 that
Claimant’s spine was “dead” and the symptoms were becoming worse. Dr.
O’Shea diagnosed Claimant on May 26, 2016, with herniated discs from C3
through T1, neck and arm pain, “low back pain and right leg pain, biforaminal
stenosis at 4-5 suggesting continued lumbosacral facet and radio frequency
ablation.” (Id. ¶ 10e.) Per the medical records, Claimant received various nerve
blocks and epidural steroid injections at different levels of Claimant’s lumbar and
cervical spine in 2016 prior to the work injury. Based on his examination of
Claimant and review of Claimant’s diagnostic testing and medical records, “Dr.
Schmidt opined that Claimant had the same physical complaints before August 25,
2016[,] as he did after.” (Id. ¶ 10f.) Dr. Schmidt further concluded that Claimant
had not sustained any injury due to the August 25, 2016 incident and, even if
Claimant had, Claimant had fully and completely recovered from any injury.
In opposition to Claimant’s neurological claims, Employer presented the
deposition testimony of Richard H. Bennett, M.D., a board-certified neurologist,
who performed an IME of Claimant on February 27, 2017.11 Dr. Bennett reviewed
a computerized tomography (CT) scan of Claimant’s brain and a cervical spine
MRI from August 25, 2016, and opined that the CT scan was normal and the MRI
reflected degenerative changes that were consistent with degenerative spondylosis.
Dr. Bennett also compared Claimant’s EMG studies from 2011, 2014, and
February 2016, with the September 23, 2016 EMG study and concluded they were
similar and consistent with each other. He also compared Claimant’s August 25,
Dr. Bennett’s deposition is found at pages 495a-578a of the Reproduced Record and is
11
summarized in finding of fact 11.
12
2016 cervical spine MRI to Claimant’s pre-accident cervical MRIs and noted that
the MRIs showed degenerative changes at almost all cervical levels. Reviewing
Dr. O’Shea’s records, Dr. Bennett opined that, prior to August 25, 2016, Claimant
suffered from severe and chronic pain for years. He noted Claimant had
complaints of headaches, neck pain, lower back pain, right arm pain, and right leg
pain in January 2016. The records also showed, Dr. Bennett stated, that Claimant
saw a pain management specialist in June 2016, at which time he complained of
neck pain that radiated into the right arm with paresthesia and low back pain
radiating into his right leg, and he described that pain as being severe, sharp, and
stabbing. Dr. Bennett opined that “brain mapping” studies, like the one Dr. Patil
performed, are not accepted diagnostic procedures, and that there was no indication
in the emergency room records of Claimant suffering a 6th nerve palsy following
the August 25, 2016 incident. Based on his examination of Claimant and review of
the diagnostic tests and medical records, Dr. Bennett opined that Claimant had
fully recovered from any injury Claimant may have sustained on August 25, 2016.
Reviewing this evidence, the WCJ made the following credibility
determinations. The WCJ found Claimant credible in part, accepting Claimant’s
testimony that he hit his head on a pipe while evacuating on August 25, 2016.
However, as to Claimant’s testimony relating his current symptoms, the WCJ
found this testimony was contradicted by Claimant’s “medical records in evidence,
as testified to by the medical experts, that [showed] Claimant had identical
complaints related to the same body parts prior to the work injury.” (FOF ¶ 12.)
The WCJ noted Claimant was treated for “ongoing neck pain radiating into his
right arm and paresthesias,” a few months before the work injury, and had “a
cervical medial branch block for chronic pain” a month before the work injury.
13
(Id.) As for Employer’s fact witnesses, Safety Director and Co-Worker, the WCJ
found them credible regarding the events of August 25, 2016, which supported the
grant of the Penalty Petition because “clearly Employer had notice of Claimant’s
injury on the day that it occurred and yet failed to file proper Bureau [of WC]
documents timely.” (Id. ¶ 13.)
The WCJ then addressed the credibility of the expert medical testimony.
The WCJ rejected Dr. Patil’s testimony in its entirety, explaining that none of the
emergency room records referred to any back injury or 6th nerve palsy on August
25, 2016. (Id. ¶ 14.) The WCJ accepted Dr. Stark’s opinion that Claimant
sustained a cervical sprain and strain on August 25, 2016, that required emergency
care, but rejected the opinion that Claimant suffered any other injuries, including
an aggravation of pre-existing conditions, given “Claimant’s extensive pre-existing
symptomatology and treatment to the same body parts alleged in [the] Claim
Petition.” (Id.) The WCJ found Dr. Bennett’s testimony credible in part,
explaining Dr. Bennett persuasively testified, based on Claimant’s medical records,
as to the seriousness of Claimant’s prior complaints, which required invasive pain
management, including to his cervical spine as recently as July 8, 2016.12 (Id.
¶ 15.) Dr. Bennett also persuasively explained there were no changes in the
objective studies of Claimant’s lumbar and cervical spine between those taken
before the injury and after the injury. The WCJ credited Dr. Bennett’s opinion that
Claimant fully recovered from any injuries Claimant sustained on August 25, 2016.
Finally, the WCJ found Dr. Schmidt’s testimony credible in part, rejecting Dr.
Schmidt’s testimony that no injury to Claimant’s neck occurred “in light of the
12
The WCJ used “July 8, 2017” in this finding of fact, but the other findings of fact
reflect that this injection occurred on July 8, 2016.
14
emergency room records, the incident report[,] and Claimant’s testimony” but
accepting Dr. Schmidt’s opinion of full recovery from any such work-related
injury as of November 9, 2016, the date of Dr. Schmidt’s examination. (Id. ¶ 16.)
For these reasons, the WCJ concluded that Claimant met his burden of proving that
he sustained a work-related cervical sprain and strain that resulted in him being
disabled from employment until November 9, 2016, at which time Claimant had
fully recovered from that injury. (WCJ Decision, Conclusion of Law (COL) ¶ 2.)
The WCJ concluded that Employer’s contest of the Claim Petition was
unreasonable until November 9, 2016, the date of Dr. Schmidt’s IME, because
until that “opinion was rendered, Employer had no reason to deny all allegations
set forth in Claimant’s petition based upon having notice of Claimant’s injury on
the date of the injury and having paid New Jersey benefits prior to this litigation.”
(Id. ¶ 4.) As to the amount of that fee, the WCJ reviewed Claimant’s counsel’s
quantum meruit document, which reflected an hourly rate of $360.00. (R.R. at
354a.) The WCJ found that, prior to November 9, 2016, counsel had expended
seven billable hours but used “a rate of $150.00 per hour, based upon this specialty
of law, for a total of unreasonable contest fees of $1050.00 payable to Claimant.”
(FOF ¶ 17.) Similarly, the WCJ concluded Claimant met his burden of proving
that Employer violated Section 406.1 of the Act13 by not issuing a Notice of
Compensation Payable (NCP) or Notice of Compensation Denial (NCD) within 21
days of receiving notice of Claimant’s injury. (COL ¶ 3.) The fact that Claimant
received benefits in New Jersey did not relieve Employer of its obligations under
13
Section 406.1 was added by Section 3 of the Act of February 8, 1972, P.L. 25, 77 P.S.
§ 717.1.
15
the Act. Nevertheless, the WCJ found that Claimant was not prejudiced because
he had received New Jersey’s WC benefits.
In sum, the WCJ granted the Claim Petition in part, awarding Claimant
medical and temporary total disability benefits from August 25, 2016, until
November 9, 2016, at which time benefits were terminated based on Claimant’s
full recovery. Because Employer paid Claimant benefits in New Jersey, the WCJ
held Employer was entitled to a credit for those benefits. The WCJ granted the
Penalty Petition and imposed a penalty of $500.00. Finally, the WCJ directed
Employer to pay $1,050.00 in quantum meruit fees. Both Claimant and Employer
appealed to the Board.14
B. The Board’s Opinion.
Claimant’s appeal to the Board challenged numerous findings of fact
because “there [were] substantial, material omissions, inconsistencies, and excerpts
of testimony summarized out of context, which adversely affected the ultimate
credibility determinations.” (R.R. at 733a-34a.) Claimant also challenged the
credibility determinations as being either “based on an incorrect/incomplete
summary of the evidence” or without being supported by the required objective
reasoning. (Id. at 734a.) Claimant further objected to the WCJ’s unilateral
reduction of his counsel’s hourly rate, and that the WCJ did not make any factual
findings “regarding the medical evidence concerning the injury to [C]laimant’s
head,” and, therefore, capriciously disregarded that evidence. (Id.) Claimant
additionally challenged the WCJ’s conclusions regarding the extent of Claimant’s
14
Although Employer appealed to the Board, its appeal is not relevant to this matter
because Employer does not challenge the Board’s decision in this Court. Thus, we will not
discuss the issues Employer raised before the Board.
16
injuries and disability, that Claimant was not prejudiced by Employer’s violation
of the Act, and that a subsequently obtained medical examination can turn an
unreasonable contest into a reasonable one. (Id.) Claimant asserted that “[h]ad the
[WCJ] issued the Decision based solely on the issues initially ‘contested’ by
[Employer], rather than permitting a full-blown litigation of the nature and extent
of injuries, the outcome of this case would likely have been significantly
different.” (Id.)
The Board disagreed that the WCJ failed to issue a reasoned decision due to
a capricious disregard of material evidence or an inadequate explanation for her
credibility determinations. Initially, it noted that Employer was entitled to credit
for the New Jersey benefits it paid, as reflected in Claimant’s testimony that he
received almost $3,500.00 a month for the work injury. (Board Opinion (Op.) at 2
n.2.) The Board explained a reasoned decision must contain findings of fact and
conclusions of law based on the whole record that clearly and concisely explain the
WCJ’s rationale for how the result was reached and allow for adequate appellate
review. (Id. at 3 (citing Daniels v. Workers’ Comp. Appeal Bd. (Tristate Transp.),
828 A.2d 1043 (Pa. 2003)).) Reviewing the WCJ’s Decision, the Board held the
WCJ adequately explained her credibility determinations. The Board held the
WCJ provided reasons for not crediting Claimant’s testimony regarding his
medical history, even though Claimant testified live before the WCJ and, therefore,
no explanation for such determination was necessary. With regard to the
credibility of the medical experts, the Board held the WCJ’s explanations, which
were based on the experts’ review of Claimant’s medical records and the results of
Claimant’s objective studies, were adequate to allow the Board to determine how
the WCJ reached her conclusion. (Id. at 9-11.) Citing Green v. Workers’
17
Compensation Appeal Board (US Airways), 155 A.3d 140 (Pa. Cmwlth. 2017), the
Board rejected Claimant’s assertion that a WCJ must address all the evidence
presented to issue a reasoned decision; rather, the WCJ “must make findings that
resolve the issues raised by the relevant evidence.” (Board Op. at 11.) The Board
observed that, although Claimant asserted a capricious disregard of the evidence,
Claimant did not explain what was missing from the WCJ’s Decision. The Board
reviewed the record and concluded the “WCJ summarized the relevant evidence[]
and . . . did not make any material omissions in rendering those summaries.” (Id.)
Because those summaries were adequate, the Board held Claimant’s arguments
that material omissions had a negative impact on the WCJ’s credibility
determinations were moot. (Id. at 11 n.5.) For these reasons, the Board held the
WCJ’s Decision satisfied the Act’s reasoned decision requirements.
The Board then addressed Claimant’s arguments that the WCJ erred in
reducing Claimant’s counsel’s hourly fee and in finding that Employer’s contest
became reasonable as of November 9, 2016. First, the Board held it is the WCJ
that must make factual findings regarding the value of quantum meruit counsel
fees to be imposed and has the authority to determine what constitutes a reasonable
fee in the first instance. (Id. at 12 (citing Hartman v. Workmen’s Comp. Appeal
Bd. (Moyer Packing Co.), 636 A.2d 1245 (Pa. Cmwlth. 1994); Eugenie v.
Workmen’s Comp. Appeal Bd. (Sheltered Emp. Serv.), 592 A.2d 358 (Pa. Cmwlth.
1991)).) The Board found no error by the WCJ in her conclusion that a reasonable
hourly rate was $150.00, rather than the $360.00 asserted by Claimant’s counsel,
reasoning “[t]he WCJ had the authority to determine what constituted a reasonable
fee, and she explained that she based the attorney fee on Claimant’s attorney’s
specialty of law.” (Id. at 13.) Second, the Board held that, contrary to Claimant’s
18
contentions, an unreasonable contest can become reasonable at a later point in the
litigation, such as when an employer provides an IME that conflicts with a
claimant’s medical evidence, thereby cutting off an employer’s exposure to
unreasonable contest fees. (Id. at 12-13 (citing Costa v. Workers’ Comp. Appeal
Bd. (Carlisle Corp.), 958 A.2d 596 (Pa. Cmwlth. 2008); Crouse v. Workers’ Comp.
Appeal Bd. (NPS Energy SVC), 801 A.2d 655 (Pa. Cmwlth. 2002)).)
Last, the Board addressed Claimant’s contention that he was entitled to more
than the $500.00 penalty awarded by the WCJ, agreeing Claimant established
Employer violated the Act by not timely filing proper documentation with the
Bureau. However, holding that the imposition and amount of penalties under
Section 435 of the Act,15 77 P.S. § 991, was within the WCJ’s discretion, the Board
found there was no error in the WCJ’s exercising her discretion to award a $500.00
penalty. (Id. at 14-15.)
For all these reasons, the Board affirmed the WCJ’s Decision and Order.
Claimant now petitions this Court for review. 16
II. Discussion
On appeal, Claimant challenges almost every aspect of the WCJ’s Decision
and handling of this matter, as well as the Board’s review of the WCJ’s Decision.
Claimant argues the WCJ violated his constitutional right to due process during the
proceedings and erred in making him prove all of the facts necessary to establish
an entitlement to benefits where Employer did not contest that entitlement in its
15
Added by Section 3 of the Act February 8, 1972, P.L. 25.
16
This Court’s scope of review in WC appeals “is limited to determining whether
necessary findings of fact are supported by substantial evidence, whether an error of law was
committed, or whether constitutional rights were violated.” Elberson v. Workers’ Comp. Appeal
Bd. (Elwyn, Inc.), 936 A.2d 1195, 1198 n.2 (Pa. Cmwlth. 2007).
19
entirety. Claimant further asserts the WCJ’s factual findings, credibility
determinations, and legal conclusions were not supported by substantial, competent
evidence but were based on a capricious disregard of overwhelming evidence.
This, Claimant contends, means the WCJ did not issue a reasoned decision. In
addition, Claimant challenges the WCJ’s reduction of Claimant’s counsel’s hourly
rate in calculating the amount of unreasonable contest fees due and in not awarding
the entirety of Claimant’s counsel fees as a result of the unreasonableness of
Employer’s contest. Employer responds the Board properly performed its
appellate review, the WCJ committed no constitutional violations, the WCJ’s
Decision was fully supported by the record and was reasoned, there was no error in
the WCJ’s legal conclusions, and there was no abuse of discretion in regard to the
amount of penalty or unreasonable contest fees awarded by the WCJ.
A. Whether the Board’s review of Claimant’s appeal was erroneous.
Claimant first argues the Board erred by limiting its review to only whether
there was substantial evidence to support the WCJ’s findings rather than
ascertaining whether the WCJ’s Decision was capricious because it was “without a
rational basis or scheme” or was “so flagrant as to be repugnant to a man of
reasonable intelligence.” (Claimant’s Brief (Br.) at 19 (internal quotations,
citations, and emphasis omitted).) Claimant maintains the Board erred by not
reviewing the WCJ’s findings and credibility determinations to ensure that they
were “actually supported by the Record as a whole – and in context,” rather than
by “[p]erforming a cursory review, to make sure that the evidence cited by the
[WCJ] does exist in the [r]ecord.” (Id. at 20 (emphasis omitted).) Employer
responds that the Board applied the correct legal standard for reviewing the WCJ’s
Decision, citing generally the standards for appellate review.
20
The questions Claimant raised in his appeal to the Board required the Board
to review the record and the WCJ’s factual findings to determine if they were
supported by substantial evidence, if they represented a capricious disregard of
overwhelming evidence, or if the WCJ’s summaries of the evidence were
insufficient. Although Claimant contends that the Board’s review required it to go
beyond determining whether the WCJ’s factual findings had evidentiary support in
the record, this is the standard for determining whether a WCJ’s findings will be
binding on appeal. Bethenergy Mines, Inc. v. Workmen’s Comp. Appeal Bd.
(Skirpan), 612 A.2d 434, 437 (Pa. 1992). It is well settled that it is irrelevant if the
record contains substantial evidence that supports findings contrary to those made
by the WCJ; rather, the inquiry is whether there is evidence to support those
actually made. Hoffmaster v. Workers’ Comp. Appeal Bd. (Senco Prods., Inc.),
721 A.2d 1152, 1155-56 (Pa. Cmwlth. 1998).
Reviewing the Board’s Opinion with these principles in mind, the Board
fully reviewed the record to resolve the issues related to the WCJ’s findings raised
in Claimant’s appeal. The Board reviewed the record and the WCJ’s findings of
fact, which summarized the evidence presented, and concluded that the findings
accurately and adequately summarized the evidence relevant to the issues before
the WCJ, were supported by that evidence, and adequately explained why the WCJ
credited some, but not other, evidence. In our view, nothing in the Board’s
Opinion reflects that the Board did not review the entire record or improperly
limited its appellate review in making these determinations. In addition, the Board
directly addressed the other issues Claimant raised on appeal, whether the WCJ’s
determinations on the amount of penalty and unreasonable contest fees were
erroneous or reflected an abuse of discretion. The Board reviewed the evidence
21
related to those issues, cited relevant precedent, and concluded that the facts and
law did not support reversal of the WCJ’s Decision. Such consideration and
resolution reflected the Board’s proper exercise of its appellate review and,
therefore, this is not a reason to reverse.
B. Whether the WCJ’s handling of this litigation reflected an abuse of
discretion and/or violated Claimant’s due process rights.
Claimant next argues that the WCJ abused her discretion and violated his
constitutional right to due process in handling this litigation. Claimant contends
the WCJ exposed him to “unnecessary litigation” by allowing Employer to
unreasonably delay the litigation on the Claim Petition. Claimant asserts the only
question before the WCJ was whether Claimant was eligible for WC benefits in
Pennsylvania and that, at the February 22, 2017 hearing, “the undisputed facts
establish[ed] [C]laimant’s entitlement to PA benefits, with no defense to any
element of compensability.” (Claimant’s Br. at 21.) At this point, Claimant
argues, “[t]he [r]ecord should have been closed, and the sole, [o]riginal [q]uestion
decided.” (Id. (emphasis omitted).) But, Claimant maintains, the WCJ improperly
allowed the record to remain open to allow Employer to allege, without evidence,
that Claimant received WC benefits in New Jersey, and to challenge the
description and duration of Claimant’s disability through untimely obtained IMEs.
(Id. at 22.) Claimant further argues he was prevented from testifying at the
February 22, 2017 hearing, which unnecessarily delayed this litigation. Claimant
further asserts he was forced to “withdraw” a review petition that he had filed to
address additional “injuries which developed over time” due to “an ‘off-the-
[r]ecord’” discussion indicating that, were it not withdrawn, Employer would have
been given more time to obtain additional medical examinations. (Id. at 29.) In
addition, Claimant challenges the WCJ’s refusal to issue a subpoena for
22
Employer’s claims representative, as it was relevant to his claim for unreasonable
contest fees. These decisions, Claimant maintains, represent an abuse of discretion
by the WCJ and a violation of his constitutional rights and require reversal.
Employer replies there was no abuse of discretion or constitutional violation
in this matter and Claimant’s specific arguments are waived because they were not
preserved for appellate review. The litigation here, it argues, involved an original
claim petition, which requires the claimant to prove all of the necessary criteria in
order to be entitled to benefits, including the duration and extent of disability,
Ingrassia v. Workers’ Compensation Appeal Board (Universal Health Services),
126 A.3d 394 (Pa. Cmwlth. 2015), even if a claim had been accepted in another
state, Kelly v. Workmen’s Compensation Appeal Board (Controlled Distribution
Services, Inc.), 625 A.2d 135 (Pa. Cmwlth. 1993). According to Employer, a
claimant’s “physical condition is always at issue throughout proceedings on a
Claim Petition.” (Employer’s Br. at 26.) Employer notes that had the record been
closed after the February 22, 2017 hearing, none of Claimant’s evidence in support
of his Claim Petition would be in the record and he would have been unable to
meet his burden of proof on the Claim Petition. It further points out that
Claimant’s counsel did not request that the record be closed at that time and/or
object when the WCJ set the trial schedule, thereby waiving any challenge to the
WCJ’s failure to close the record and decide the issues at that time.
As for Claimant’s other allegations, Employer responds to the merits of
those claims, but also asserts Claimant waived them by not raising them before
either the WCJ or the Board. On the merits of the alleged delays in its evidentiary
presentation, Employer argues it obtained its first IME, by Dr. Schmidt, only 14
days after the October 26, 2016 hearing, and sought the second IME by Dr.
23
Bennett only when it became aware that Claimant was also presenting the
testimony of Dr. Patil, a neurologist. Employer asserts that Claimant opposed the
second IME and, therefore, it had to obtain authorization from the WCJ to obtain
the IME, which occurred on February 22, 2017, and this IME occurred five days
later. Further, Employer argues there is nothing in the record to support
Claimant’s assertion he was “forced” to withdraw a review petition, and the Court
may not consider anything that is not in the certified record. Employer maintains
there was no abuse of discretion in denying Claimant’s subpoena request because it
was aimed at obtaining evidence related to whether Employer’s contest was
unreasonable, an issue on which he had no burden of proof. This is particularly so,
Employer asserts, where the WCJ found that Employer did not meet its burden of
proof on the issue until November 9, 2016, and awarded unreasonable contest fees
as a result. Employer argues there is no due process violation here because
Claimant had the opportunity to be heard and present his case. Employer contends
that the WCJ’s rulings were not “so flagrant as to be repugnant to a man of
reasonable intelligence” so as to rise to an abuse of discretion. (Employer’s Br. at
35.)
Reviewing the record in this matter, including the transcripts from the
various hearings before the WCJ and Claimant’s appeal to the Board, we agree
with Employer that Claimant has not preserved these challenges. Pennsylvania
Rule of Appellate Procedure 1551, Pa.R.A.P. 1551, states that “[o]nly questions
raised before the government unit shall be heard or considered,” except questions
related to a statute’s validity, questions regarding “the jurisdiction of the
government unit over the subject matter of the adjudication,” and questions “that
the court is satisfied the petitioner could not by the exercise of due diligence have
24
raised before the government unit.” “An issue is waived unless it is preserved at
every stage of the proceedings.” Riley v. Workers’ Comp. Appeal Bd.
(DPW/Norristown State Hosp.), 997 A.2d 382, 388 (Pa. Cmwlth. 2010). The
“doctrine of waiver is applicable to workers’ compensation proceedings.” Nabisco
Brands, Inc. v. Workers’ Comp. Appeal Bd. (Tropello), 763 A.2d 555, 558 n.6 (Pa.
Cmwlth. 2000). A party’s failure to object before a WCJ results in waiver for
appellate purposes. Id. at 558. Similarly, the failure to raise an issue before the
Board also results in the waiver of an issue for appellate review. Budd Baer, Inc.
v. Workers’ Comp. Appeal Bd. (Butcher), 892 A.2d 64, 67 (Pa. Cmwlth. 2006).
This includes constitutional violations alleged to have occurred during proceedings
before a workers’ compensation judge that were not raised before the Board.
Watkins v. Workers’ Comp. Appeal Bd. (Caretti, Inc.) (Pa. Cmwlth., No. 1280 C.D.
2017, filed. Apr. 2, 2018) (finding the claimant had waived the issue that his
constitutional rights were violated because it was not raised before the Board, but
could have been, and he was not challenging the validity of a statute, or the
Board’s jurisdiction).17,18
First, a review of the hearing transcripts and filings with the WCJ do not
reflect any objection by Claimant when the WCJ set the trial schedule, allowed
Employer to obtain a second IME to address Claimant’s asserted head trauma, or
17
Watkins, an unreported decision of this Court, is cited for its persuasive value pursuant
to Pennsylvania Rule of Appellate Procedure 126(b), Pa.R.A.P. 126(b), and Section 414(a) of the
Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a).
18
While Employer also asserts waiver based on Claimant’s failure to include issues in his
petition for review, this is no longer a basis for finding an issue waived “if the court is able to
address the issue based on the certified record.” Pennsylvania Rule of Appellate Procedure
1513(d)(5), Pa.R.A.P. 1513(d)(5).
25
when the WCJ denied the subpoena.19 (R.R. at 5a-6a, 12a-15a, 658a-59a; Certified
Record Item 18 at 3-4.) In fact, Claimant’s counsel stated at the February 22, 2017
hearing, that the WCJ’s trial schedule “cover[ed] it.” (R.R. at 15a.) At no point
did Claimant challenge how the WCJ was handling the matter or indicate that the
withdrawal of the Review Petition was involuntary. (Id. at 698a, 702a, 706a.)
These are the actions that Claimant asserts violated his constitutional rights, and
Claimant could have objected or challenged the WCJ’s actions, allowing the WCJ
to revise those rulings, had Claimant believed them invalid. As for Claimant’s
receipt of WC benefits in New Jersey, Claimant himself acknowledged before the
WCJ receiving those benefits and he was the one who submitted the payment
screen reflecting such payment. (Id. at 320a, 701a.) He similarly acknowledged,
in a letter dated October 17, 2016, that if Pennsylvania benefits were awarded “the
insurance company is entitled to a credit for any benefits already paid under the NJ
acceptance of my claim.” (Id. at 136a-37a.) Thus, there is nothing in the record
before the WCJ reflecting that Claimant raised the arguments he now makes to the
Court.
Second, a careful review of Claimant’s appeal to the Board reveals that he
did not raise these claims therein. There is no assertion in that appeal of a violation
of Claimant’s constitutional right and no mention of the denial of the subpoena
request or that he was forced to withdraw a review petition, no challenge to the
timeliness of Employer’s IMEs, and no assertion that the litigation in this matter
was unnecessarily prolonged by either Employer or the WCJ. (R.R. at 733a-34a.)
19
In fact, when Employer attempted to question Safety Director on why a case was filed
in New Jersey rather than in Pennsylvania, Claimant objected on the basis that the WCJ denied
the subpoena. (R.R. at 672a-73a.) The WCJ sustained the objection. (Id. at 673a.)
26
As such, these issues are waived for appellate review. Further, while Claimant
asserted in his appeal to the Board that “[h]ad the [WCJ] issued the Decision based
solely on the issues initially ‘contested’ by [Employer], rather than permitting a
full-blown litigation of the nature and extent of injuries, the outcome of this case
would likely have been significantly different,” (id. at 734a), Employer contested
the nature and extent of Claimant’s injuries from the beginning and supported that
contest with Dr. Schmidt’s November 9, 2016 IME, Dr. Bennett’s IME, and
Claimant’s own medical records. The only issues that Employer did not contest, as
reflected in the October 26, 2016 and February 22, 2017 hearing transcripts, was
that Pennsylvania had jurisdiction over this claim and that some kind of injury had
occurred on August 25, 2016, which had been accepted as a work injury in New
Jersey. (Id. at 5a, 12a-13a.)
For these reasons, Claimant has not preserved these issues for appellate
review.20
C. Whether the WCJ issued a reasoned decision.
Claimant argues the WCJ’s Decision was not a reasoned decision as required
by Section 422(a) of the Act. Claimant asserts that the WCJ did not adequately or
accurately summarize the evidence presented, particularly the medical records
from Aria Health and Cooper Hospital. He also argues that the WCJ’s
explanations for the credibility determinations did not meet the standard necessary
to be reasoned under the Act. Employer responds that the WCJ’s Decision was
reasoned in that the WCJ was not required to address all of the evidence presented
20
Even were we to address these issues, our careful review of the records in the
reproduced records and the certified record revealed no abuse of discretion, constitutional
violation, or other impropriety in how the WCJ handled this matter.
27
and the credibility determinations were adequate because they were based on
whether the witnesses’ testimony was consistent with Claimant’s medical records
and results of objective tests.
Section 422(a) of the Act, 77 P.S. § 834,21 requires that a WCJ issue a
decision that is “reasoned,” and a reasoned decision is “no more, and no less” than
that the decision “allows for adequate review by the appellate courts under
applicable review standards.” Daniels, 828 A.2d at 1052. With regard to
credibility determinations, “absent the circumstance where a credibility assessment
may be said to have been tied to the inherently subjective circumstance of witness
demeanor,” such as when the witness is testifying in person, there must be “some
articulation of the actual objective basis for the credibility determination” in order
for the WCJ’s decision to be reasoned. Id. at 1053. Bases that have been found
sufficient include an expert’s opinion being based on erroneous factual
assumptions, the expert may be more or less qualified than the opposing party’s
expert, the expert “may be impeached with inconsistencies or contradictions in his
21
Section 422(a) of the Act provides, in relevant part:
All parties to an adjudicatory proceeding are entitled to a reasoned decision
containing findings of fact and conclusions of law based upon the evidence as a
whole which clearly and concisely states and explains the rationale for the
decisions so that all can determine why and how a particular result was reached.
The workers’ compensation judge shall specify the evidence upon which the
workers’ compensation judge relies and state the reasons for accepting it in
conformity with this section. When faced with conflicting evidence, the workers’
compensation judge must adequately explain the reasons for rejecting or
discrediting competent evidence. Uncontroverted evidence may not be rejected
for no reason or for an irrational reason; the workers’ compensation judge must
identify that evidence and explain adequately the reasons for its rejection. The
adjudication shall provide the basis for meaningful appellate review.
77 P.S. § 834.
28
or her testimony or reports” or “in some other convincing fashion.” Id. at 1053.
The reasoned decision requirement “does not permit a party to challenge or
second-guess the WCJ’s reasons for credibility determinations.” Dorsey v.
Workers’ Comp. Appeal Bd. (Crossing Constr. Co.), 893 A.2d 191, 195 (Pa.
Cmwlth. 2006). Further, “Section 422(a) does not require the WCJ to discuss all
of the evidence presented”; “[t]he WCJ is only required to make the findings
necessary to resolve the issues raised by the evidence and relevant to the decision.”
Dorsey, 893 A.2d at 194 n.4.
Reviewing the WCJ’s findings of fact, credibility determinations, and the
record evidence, including the hearing and deposition transcripts and medical
records, we disagree with Claimant that the WCJ’s Decision was not reasoned as
required by Section 422(a). The WCJ’s numerous findings of fact accurately and
adequately summarized and described the witnesses’ testimony and the contents of
Claimant’s medical records from Aria Health and Cooper Hospital that the WCJ
relied upon to support her legal conclusions. Claimant’s main point of contention
is with the summary of the medical evidence in this matter. With regard to the
medical experts, the WCJ set forth each physicians’ diagnoses, their review of the
results of any objective tests and Claimant’s medical records, their physical
examination of Claimant, and the extent of their understanding of Claimant’s past
medical history that was relevant to the witnesses’ determinations as to what was
causing Claimant’s current symptomatology. (FOF ¶¶ 5-6, 10-11.) With regard to
Claimant’s medical records from Aria Health and Cooper Hospital, the WCJ
described the diagnoses resulting from those visits, what was not diagnosed or not
complained of, how Claimant presented for treatment, the past medical history he
provided each hospital, and the history Claimant gave regarding the work injury
29
that were relevant to the WCJ’s legal conclusions. (Id. ¶¶ 7-8.) The WCJ was not
required to address each and every piece of evidence presented, but “is only
required to make the findings necessary to resolve the issues raised by the evidence
and relevant to the decision.” Dorsey, 893 A.2d at 194 n.4. The WCJ’s findings of
fact satisfy this requirement and allow this Court to perform adequate appellate
review. As such, these findings meet the reasoned decision requirement of Section
422(a). Daniels, 828 A.2d at 1052.
The WCJ’s explanations for the credibility determinations likewise satisfy
Section 422(a)’s requirements. In five separate findings of fact, the WCJ indicated
whether each witness was credible, in whole or in part, and provided objective
reasons for those determinations. These objective reasons were grounded on the
contents of Claimant’s medical records, including his past complaints that
reflected, among other things, the same symptoms he was currently exhibiting and
the results of Claimant’s diagnostic tests, and whether the particular witnesses’
testimonies were consistent with those records and results. (FOF ¶¶ 12-16.)
Reviewing the records and testimony offered, the reasons given by the WCJ are
supported by the records cited. These reasons were not based on inherent
subjective circumstances, such as the witnesses’ demeanor, but on actual objective
bases. Daniels, 828 A.2d at 1053. The consistency of a medical expert’s
testimony with a claimant’s medical records and the results of objective testing are
convincing bases for accepting or rejecting such expert’s testimony. Id. We are
not left to guess the WCJ’s reasoning for these determinations, and the
explanations provided, which are supported by the record, allow this Court to
perform adequate appellate review. Therefore, these determinations meet the
reasoned decision requirement of Section 422(a). Daniels, 828 A.2d at 1052.
30
D. Whether the WCJ’s Decision was supported by substantial evidence.
Claimant argues the WCJ’s Decision should be reversed because the
findings of fact were not supported by substantial evidence, but were based on a
capricious disregard of the evidence. Claimant maintains the WCJ erred in relying
on Employer’s medical experts because that testimony was equivocal as they only
reviewed select medical records. Employer responds that the WCJ’s Decision was
supported by substantial evidence and there was no capricious disregard of any
evidence.
In a substantial evidence challenge, the WCJ is the ultimate fact-finder in
workers’ compensation cases, “[t]he WCJ’s authority over questions of credibility,
conflicting evidence and evidentiary weight is unquestioned,” and we are bound by
those determinations. Minicozzi v. Workers’ Comp. Appeal Bd. (Indus. Metal
Plating, Inc.), 873 A.2d 25, 28-29 (Pa. Cmwlth. 2005). The WCJ is free to accept
or reject, in whole or in part, the testimony of any witness. Lombardo v. Workers’
Comp. Appeal Bd. (Topps Co., Inc.), 698 A.2d 1378, 1381 (Pa. Cmwlth. 1997).
The role of the appellate court is not to reweigh the evidence, and we are bound by
the WCJ’s factual findings if they are supported by substantial evidence.
Bethenergy Mines, 612 A.2d at 437. “Substantial evidence is such relevant
evidence a reasonable mind might accept as adequate to support a conclusion.”
WAWA v. Workers’ Comp. Appeal Bd. (Seltzer), 951 A.2d 405, 408 n.4 (Pa.
Cmwlth. 2008). When reviewing a WCJ’s findings for substantial evidence, the
Court reviews the evidence, and all inferences reasonably deducible therefrom, in
the light most favorable to the prevailing party. Id. It is irrelevant if the record
contains evidence that supports findings contrary to those made by the WCJ;
rather, the inquiry is whether there is evidence to support those actually made.
Hoffmaster, 721 A.2d at 1155-56. Although a “[r]eview for capricious disregard of
31
material, competent evidence is an appropriate component of appellate
consideration in every case in which such question is properly brought before the
court,” “where there is substantial evidence 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 disturb an adjudication based upon capricious
disregard.” Leon E. Wintermyer v. Workers’ Comp. Appeal Bd. (Marlowe), 812
A.2d 478, 487 (Pa. 2002). The express consideration and rejection of evidence,
“by definition, is not capricious disregard.” Williams v. Workers’ Comp. Appeal
Bd. (USX Corp.-Fairless Works), 862 A.2d 137, 144-45 (Pa. Cmwlth. 2004).
A review of the WCJ’s findings of fact and the record as a whole does not
support Claimant’s assertions that those findings are not supported by substantial,
competent evidence or that the WCJ capriciously disregarded evidence. As stated
above, the WCJ’s findings of fact accurately summarized the witnesses’ testimony
and the other evidence in the record as was necessary for the WCJ to resolve the
issues before her. Relevant to the WCJ’s ultimate conclusions in this matter, Dr.
Stark credibly testified that Claimant sustained a cervical strain and sprain as a
result of the August 25, 2016 work incident, Dr. Schmidt credibly testified that
Claimant had recovered from that injury as of November 9, 2016, and Claimant’s
full recovery was confirmed by Dr. Bennett’s credible testimony. (R.R. at 158a,
405a-06a, 539a-40a, 543a-45a.) A reasonable mind would accept this credited
evidence as sufficient to support the WCJ’s conclusions that Claimant sustained a
disabling work injury in the nature of a cervical strain and sprain on August 25,
2016, but was fully recovered therefrom as of November 9, 2016. The WCJ
rejected the testimony of Dr. Patil and Dr. Stark that attempted to relate additional
injuries to the work incident because that testimony was not supported by
32
Claimant’s medical records, including those immediately following that incident
and the results of Claimant’s objective studies. (FOF ¶¶ 14-15.) This is supported
by the credited testimony of Dr. Bennett and Dr. Schmidt and the records from
Aria Health and Cooper Hospital, and a reasonable mind would accept this
evidence as sufficient to support the WCJ’s findings. Ultimately, the WCJ credited
the testimony of Dr. Schmidt and Dr. Bennett that Claimant’s medical records
showed that Claimant had serious, preexisting conditions that affected the same
body parts that were at issue in the Claim Petition and that Claimant’s
symptomatology and related disability were not caused by the work-related
cervical strain and sprain after November 9, 2016. A reasonable mind reviewing
the detailed testimony of Dr. Schmidt and Dr. Bennett regarding Claimant’s
medical records, the similarity of Claimant’s prior symptoms/conditions and
current symptoms/conditions, and the results of objective studies of Claimant’s
cervical and lumbar spine, both before and after August 25, 2016, would accept
this testimony as evidence that supports the WCJ’s findings. Therefore, the WCJ’s
findings of fact are supported by substantial evidence, and we are bound by them.
As to Claimant’s contentions that Employer’s experts’ testimony was not
competent and that the WCJ capriciously disregarded the evidence, neither
contention is persuasive. Although Claimant argues that the testimony of Dr.
Schmidt and Dr. Bennett was equivocal and not competent because they did not
review all of Claimant’s records, whether a medical expert has reviewed all of the
“medical records goes to the weight given the expert’s testimony, not its
competency.” Huddy v. Workers’ Comp. Appeal Bd. (U.S. Air), 905 A.2d 589, 593
n.9 (Pa. Cmwlth. 2006) (citation omitted). On the issue of a capricious disregard
of the evidence, the WCJ’s findings of fact reflect that the WCJ considered the
33
evidence, weighed the evidence, and rejected, in part, the evidence Claimant
presented in support of some of his claims. Such consideration and rejection of
evidence, “by definition, is not capricious disregard.” Williams, 862 A.2d at 144-
45. While Claimant may disagree with the WCJ’s Decision, we cannot conclude
that there was a “deliberate and baseless disregard of apparently trustworthy
evidence” in this matter, particularly where the WCJ’s findings of fact are
supported by substantial evidence. Id. at 144. Thus, this is not one of the rare
instances in which the appellate courts will disturb the WCJ’s Decision based on a
capricious disregard of the evidence. Wintermyer, 812 A.2d at 487.
E. Whether the WCJ’s Decision was supported by the law.
Claimant argues the WCJ’s Decision granting him benefits for a closed
period of time and awarding Employer a credit for any New Jersey WC benefits
paid was not supported by the evidence or the law as there was no evidence of such
payment. Claimant also asserts Employer could not deny responsibility for the
work injury because it had been accepted in New Jersey. Employer responds there
was no error in the WCJ’s Decision because the WCJ rejected Claimant’s evidence
relating his ongoing complaints and disability to the work incident, rather than his
longstanding preexisting conditions, precluding Claimant from meeting his burden
of proving an ongoing entitlement to benefits. Employer argues that Claimant’s
physical condition was always at issue during the Claim Petition proceedings and
that the acceptance of a work injury as compensable in a different state does not
mean that injury is compensable in Pennsylvania.
The burden of proof in a claim petition proceeding is on the claimant, who
must prove all of the necessary elements to support the award of benefits. Coyne v.
Workers’ Comp. Appeal Bd. (Villanova Univ.), 942 A.2d 939, 945 (Pa. Cmwlth.
34
2008). To do so, the claimant must show that the injury “was sustained during the
course and scope of employment[,] . . . is causally related thereto,” and causes an
ongoing disability. Id. If the evidence shows that the disability is not ongoing, “a
WCJ can terminate benefits within the context of a claim petition even when the
employer never filed a termination petition.” Id. at 952. This occurs when a
medical expert unequivocally testifies, within a reasonable degree of medical
certainty, that the claimant is fully recovered, can return to work without
restrictions, and there are no objective findings that substantiate any ongoing
complaints the claimant may have or connect those complaints to the work injury.
Udvari v. Workmen’s Comp. Appeal Bd. (USAir, Inc.), 705 A.2d 1290, 1293 (Pa.
1997).
In order to obtain an award of ongoing WC benefits, Claimant bore the
burden of proving not only that he sustained a work-related injury but also that he
continued to be disabled by that work-related injury. Coyne, 942 A.2d at 945.
While the WCJ credited evidence establishing that Claimant sustained a work-
related injury on August 25, 2016, in the nature of a cervical sprain and strain, the
WCJ also credited unequivocal medical evidence that stated that Claimant had
fully recovered from that work-related injury as of November 9, 2016, and that any
continued symptomatology and disability were related to Claimant’s significant
preexisting conditions. As stated above, the WCJ’s findings of fact are supported
by substantial, competent evidence and, therefore, are binding on this Court.
Bethenergy Mines, 612 A.2d at 437. These findings support the WCJ’s legal
conclusion that Claimant was entitled to WC benefits only for the period from
August 25, 2016, to November 9, 2016, with benefits terminating based on
35
Claimant’s full recovery. Accordingly, we discern no error in the WCJ’s award of
benefits for a closed period.
As for the effect of payment of New Jersey WC benefits, Claimant appears
to argue, simultaneously, that Employer could not deny his Pennsylvania claim
because it accepted the injury in New Jersey but that Employer is not entitled to
any credit for those New Jersey benefits because there is no proof that Employer
ever paid benefits in New Jersey. On the latter contention, Claimant, himself,
testified that Employer paid him benefits for the injury in New Jersey and offered a
screenshot of a payment screen reflecting such payment, payments that Claimant
asserted ended in March 2017. (R.R. at 320a, 701a.) On the former contention, we
have held that an employer’s payment of benefits under a different state’s workers’
compensation law “does not constitute an admission by the [e]mployer that [the
c]laimant suffered a work-related injury or disability under Pennsylvania’s Act.”
Kelly, 625 A.2d at 138. Thus, that Employer paid Claimant benefits in New Jersey
was not an admission that the injury would be compensable in Pennsylvania. Id.
Moreover, Employer was entitled to credit for the New Jersey benefits it paid.
Lesco Restoration v. Workers’ Comp. Appeal Bd. (Mitchell), 861 A.2d 1002, 1003-
05 (Pa. Cmwlth. 2004) (affirming Board order concluding that a claimant had
established an entitlement to Pennsylvania WC benefits less a credit for benefits
the employer had paid in New Jersey for the same injury). In fact, Claimant
acknowledged, in a letter dated October 17, 2016, that if Pennsylvania benefits
were awarded “the insurance company is entitled to a credit for any benefits
already paid under the [New Jersey] acceptance of my claim.” (R.R. at 136a-37a.)
36
F. Whether the WCJ abused her discretion in awarding a de minimis
penalty.
Claimant asserts the WCJ abused her discretion by imposing only a de
minimis penalty given “the full extent of [Employer’s] conduct,” which was “in
blatant disregard of Pennsylvania Law” in numerous ways. (Claimant’s Br. at 43-
44.) According to Claimant, the WCJ’s rationale for not imposing a higher penalty
was that Claimant was not prejudiced by the violation, which Claimant contends is
contradicted by the evidence. Employer responds there was no abuse of discretion
in the WCJ’s penalty award, as the amount of the award was within the WCJ’s
discretion. Further, it argues that of the 7 violations of the Act alleged by Claimant
in his brief, only 3 were asserted in the Penalty Petition: the failure to issue an
NCP or NCD within 21 days of its receiving notice of the injury and the failure to
pay benefits timely and at the correct rates. Employer does not dispute that it did
not issue an NCP or NCD, but argues that it had no obligation to pay any
Pennsylvania benefits until the Claim Petition was resolved and, therefore, no
violation occurred.
The claimant bears the burden of proof on a penalty petition and must show
that the employer violated the Act or its related regulations. Brutico v. Workers’
Comp. Appeal Bd. (US Airways), 866 A.2d 1152, 1155-56 (Pa. Cmwlth. 2004). An
employer must be given notice of the alleged allegations and an opportunity to
defend against those allegations. Crangi Distrib. Co. v. Workmen’s Comp. Appeal
Bd., 333 A.2d 207, 209-10 (Pa. Cmwlth. 1975). Even where a violation occurs, the
decision to assess a penalty and the amount of any penalty is solely within the
WCJ’s discretion. Brutico, 866 A.2d at 1156. “[A]bsent an abuse of discretion
. . . , we will not overturn the WCJ’s decision on appeal.” Id. “An abuse of
37
discretion is not merely an error of judgment but occurs, inter alia, when the law is
misapplied in reaching a conclusion.” Id. (citation omitted).
We discern no abuse of discretion in the WCJ’s determination as to the
penalty award. First, Claimant’s Penalty Petition did not allege all of the violations
he now alleges occurred, and, therefore, Employer did not have notice or an
opportunity to defend against those allegations. Therefore, they are not bases upon
which a penalty could be awarded. Crangi, 333 A.2d at 210. Second, although the
Penalty Petition alleged violations based on Employer’s failure to timely pay or to
pay the proper amount, until there was a decision granting the Claim Petition,
Employer’s obligation to pay benefits under the Act was not yet established.
Third, while Employer violated Section 406.1 of the Act when it did not issue an
NCP or NCD within the required time period, 77 P.S. § 717.1, the WCJ
acknowledged this violation and awarded a penalty that the WCJ deemed
appropriate under the circumstances. Although Claimant argues the penalty
amount was an abuse of discretion because he disagrees with the WCJ that he was
not prejudiced by Employer’s delay, the WCJ explained that the lack of prejudice
was based on Claimant’s receipt of New Jersey WC benefits. Claimant
acknowledged his receipt of New Jersey WC benefits and presented evidence
related to those payments. Under these circumstances, we cannot say that the WCJ
abused her discretion in awarding a $500.00 penalty for Employer’s failure to
timely issue an NCP.
G. Whether the WCJ erred in calculating the unreasonable contest fees.
Finally, Claimant argues the WCJ’s award of attorney’s fees in this matter
was erroneous in two ways. Claimant disputes the conclusion that after-acquired
medical evidence can render an unreasonable contest reasonable. Claimant also
38
argues the WCJ erred by unilaterally reducing his Counsel’s fee from $360.00 per
hour to $150.00 per hour. Employer responds there was no error in limiting the
unreasonableness of its contest to the time prior to Dr. Schmidt’s November 9,
2016 examination, as such limitation is supported by precedent. It further responds
that, consistent with her role under Section 440(b) of the Act, 77 P.S. § 996(b), the
WCJ made findings regarding the amount and length of time for which an attorney
fee is payable based upon the skill required, the duration of the proceedings, and
the time and effort required and expended. Here, Employer argues, the WCJ
awarded a sum of $1,050.00 to compensate Claimant’s counsel for the time he
expended on Claimant’s behalf between September 9, 2016, and November 9,
2016, and as this award is reasonably related to the amount and difficulty of the
work, the WCJ’s discretion should not be disturbed. Milton S. Hershey Med. Ctr.
v. Workmen’s Comp. Appeal Bd. (Mahar), 659 A.2d 1067, 1070 (Pa. Cmwlth.
1995).
Section 440(a) of the Act22 provides that if the employer contests liability,
the employer will be liable for a claimant’s costs, including attorney’s fees, if the
22
Section 440 of the Act, which was added by Section 3 of the Act of February 8, 1972,
P.L. 25, states in its entirety:
(a) In any contested case where the insurer has contested liability in whole or
in part, including contested cases involving petitions to terminate, reinstate,
increase, reduce or otherwise modify compensation awards, agreements or other
payment arrangements or to set aside final receipts, the employe or his
dependent, as the case may be, in whose favor the matter at issue has been
finally determined in whole or in part shall be awarded, in addition to the
award for compensation, a reasonable sum for costs incurred for attorney’s
fee, witnesses, necessary medical examination, and the value of unreimbursed lost
time to attend the proceedings: Provided, That cost for attorney fees may be
excluded when a reasonable basis for the contest has been established by the
employer or the insurer.
(Footnote continued on next page…)
39
matter is resolved in the claimant’s favor in whole or in part. 77 P.S. § 996(a).
But, if the employer’s contest is reasonable, attorney’s fees may be excluded. Id.
“The reasonableness of an employer’s contest depends upon whether the contest
was prompted to resolve a genuinely disputed issue” and is a question of law
subject to our review. Coyne, 942 A.2d at 956. As for the amount of that fee,
Section 440(a) provides that it be a “reasonable sum,” 77 P.S. § 996(a), and
Section 440(b) requires the WCJ to make a finding as to the amount claimed, the
length of time and effort expended “based upon the complexity of the factual and
legal issues involved,” and the duration of the proceedings, 77 P.S. § 996(b).
“[T]he question of what is a reasonable sum for attorney’s fees includes factual
queries and that the determination of what are reasonable attorney’s fees depends
on the difficulty of the work performed by claimant’s attorney.” Eugenie, 592
A.2d at 361-62 (internal quotation marks and citation omitted). It is the WCJ, in
the first instance, who has the authority “to determine what constitutes a reasonable
fee,” and the WCJ’s “opportunities of judging the exact amount of labor, skill and
responsibility involved . . . are necessarily greater than ours, and [the WCJ’s]
_____________________________
(continued…)
(b) If counsel fees are awarded and assessed against the insurer or employer, then
the workers’ compensation judge must make a finding as to the amount and the
length of time for which such counsel fee is payable based upon the complexity of
the factual and legal issues involved, the skill required, the duration of the
proceedings and the time and effort required and actually expended. If the insurer
has paid or tendered payment of compensation and the controversy relates to the
amount of compensation due, costs for attorney’s fee shall be based only on the
difference between the final award of compensation and the compensation paid or
tendered by the insurer.
77 P.S. § 996 (emphasis added).
40
judgment should not be interfered with except for plain error.” Id. at 362 (quoting
Good’s Estate, 24 A. 623, 623 (Pa. 1892)) (ellipsis in original).
We discern no error or abuse of discretion in the WCJ’s determinations
regarding the award of unreasonable contest fees. First, contrary to Claimant’s
arguments, an employer’s contest, even if initially unreasonable, can become
reasonable during the litigation based on “after-acquired medical evidence” to
support the employer’s arguments. Crouse, 801 A.2d at 659-60. While the
employer remains liable for attorney’s fees for the period in which its challenge
was unreasonable, its “exposure to unreasonable contest fees [ends] for [the] fees
incurred after producing evidence sufficient to support a finding of reasonable
contest.” Id. Here, the WCJ found that Employer’s contest, while not reasonable
at its outset, became reasonable upon its receipt of medical evidence that supported
its arguments as to the extent of Claimant’s work-related injuries and disability.
This determination is consistent with Coyne and, therefore, was not erroneous.
Second, finding of fact 17 explained that the WCJ had reviewed Claimant’s
counsel’s quantum meruit submission, and found that counsel had expended seven
hours prior to November 9, 2016. As for counsel’s rate, the WCJ stated that the
rate would be “$150.00 per hour, based upon this specialty of law.” (FOF ¶ 17.) A
counsel’s quantum meruit submission or agreement with a claimant is one item for
a WCJ to consider in determining what “reasonable sum” is awardable under
Section 422(a) of the Act, 77 P.S. § 996(a). Eugenie, 592 A.2d at 362. Here, the
WCJ, who has greater opportunities to adjudge “the exact amount of labor, skill
and responsibility,” id. (citation omitted), than this Court, reviewed that document
but concluded, based on the WCJ’s experience, that $150.00 was the appropriate
hourly rate “based upon this specialty of law,” (FOF ¶ 17). We will not interfere
41
with this judgment absent “plain error,” and we are unpersuaded that there is such
error here. Although Claimant argues that the rate used by the WCJ was arbitrary
because it was contrary to counsel’s submission, there is no requirement that such
submissions are conclusive on the WCJ. Without plain error, we will not interfere
with the WCJ’s determination that “the fee award was reasonably related to the
work performed” by Claimant’s counsel prior to November 9, 2016. Milton S.
Hershey Med. Ctr., 659 A.2d at 1070.
III. Conclusion
After thoroughly reviewing the parties’ arguments, the WCJ’s Decision, and
the record, and for the foregoing reasons, we discern no error or abuse of discretion
by the WCJ or by the Board in upholding the WCJ’s Decision. Accordingly, we
affirm the Board’s Order.
_____________________________________
RENÉE COHN JUBELIRER, Judge
42
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael Staton, :
Petitioner :
:
v. : No. 1648 C.D. 2019
:
Workers’ Compensation Appeal Board :
(System One Holdings, LLC), :
Respondent :
ORDER
NOW, December 14, 2020, the Order of the Workers’ Compensation
Appeal Board, entered in the above-captioned matter, is AFFIRMED.
_____________________________________
RENÉE COHN JUBELIRER, Judge