American Airlines, Inc. & New Hampshire Ins. Co. v. C. Brown (WCAB) ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
American Airlines, Inc. and :
New Hampshire Insurance Co., :
Petitioners :
:
v. :
:
Chris Brown (Workers’ :
Compensation Appeal Board), : No. 356 C.D. 2021
Respondent : Submitted: November 5, 2021
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge1
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: February 9, 2022
American Airlines, Inc. and New Hampshire Insurance Co.
(collectively, Employer) petition this Court for review of the Workers’
Compensation (WC) Appeal Board’s (Board) March 5, 2021 order affirming the WC
Judge’s (WCJ) decision that granted Chris Brown’s (Claimant) Claim Petition and
directed Employer to reimburse Claimant’s litigation costs. Employer presents two
issues for this Court’s review: (1) whether the WCJ erred by finding that Claimant
met his burden of proving that he is entitled to specific loss benefits for the loss of
his right eye for all practical intents and purposes, as well as the permanency of the
loss;2 and (2) whether the WCJ erred by denying Employer’s objection to the rebuttal
1
This case was assigned to the opinion writer before January 7, 2022, when Judge Cohn
Jubelirer became President Judge.
2
Employer separated this issue into three distinct issues: whether the WCJ erred by finding
that Claimant met his burden of proving that he is entitled to specific loss benefits for the loss of
his right eye for all practical intents and purposes, as well as permanency of the loss: (1) when the
substantial competent evidence established, inter alia, that Claimant’s eyesight had continued to
testimony of Claimant’s expert and denying Employer’s request to address the
rebuttal testimony, resulting in a violation of Employer’s right to due process when
new evidence was relied upon in finding a specific loss. After review, this Court
affirms.
Facts3
Employer hired Claimant as a fleet service agent. See Stip. ¶ 1. On
February 19, 2018, Claimant sustained a work-related detached retina of the right
eye due to a jet blast to the right eye. See Stip. ¶ 3(a). Claimant underwent surgery
on February 23, 2018, to repair the detached retina. See Stip. ¶ 3(b). On April 10,
2018, Claimant reported the injury to Employer. See Stip. ¶ 1. On May 4, 2018,
Claimant underwent a second surgical procedure to address a work-related cataract
that developed in the right eye as a result of the detached retina. See Stip. ¶ 3(b).
On May 9, 2018, Employer issued a Notice of Compensation Denial. See Stip. ¶ 1.
On June 12, 2018, Claimant returned to unrestricted work, earning his pre-injury
average weekly wage of $1,355.56. See Stip. ¶ 3(c). Employer suspended
Claimant’s WC benefits as of June 12, 2018. See id. On August 27, 2018, Claimant
filed a Claim Petition seeking total disability benefits from February 20, 2018 to
June 11, 2018. See Stip. ¶ 2.
improve, post-surgery with healing; (2) by relying on the equivocal and legally incompetent
opinions of Claimant’s medical expert; and by failing to reconcile Claimant’s expert’s inconsistent,
conflicting opinions relied upon in awarding specific loss benefits for the permanent loss of
Claimant’s right eye, when he testified that additional healing could take place with improved
eyesight and return to baseline; and (3) by not reconciling or addressing clear contradictions in the
record. See Employer Br. at 1. Because all three issues are subsumed in the first issue, this Court
has combined them.
3
The facts are as recited in a Stipulation between the parties filed on June 25, 2019, and
approved by the WCJ on July 1, 2019. The Stipulation resolved the issue of whether Claimant
suffered a work-related injury. The issue before this Court is whether the WCJ erred by
determining Claimant suffered a specific loss.
2
The WCJ held hearings on October 24, 2018, and January 23, April 10,
July 30, and August 28, 2019. On January 28, 2020, the WCJ granted Claimant’s
Claim Petition and directed Employer to pay Claimant specific loss benefits for the
loss of vision in Claimant’s right eye for all practical intents and purposes for a
benefit period of 275 weeks with an additional 10-week healing period. Employer
appealed to the Board. On March 5, 2021, the Board affirmed the WCJ’s decision.
Employer appealed to this Court.4, 5
Discussion
Initially,
[t]he standard to be applied in the determination of
whether compensation for the specific loss of the use of an
eye is due, where the eye has been injured but not entirely
destroyed . . . is that of whether the injured eye was lost
for all practical intents and purposes, not whether [the]
claimant in fact has vision in the injured eye. If so,
compensation follows. In facilitation of the application of
th[is] [] test, a further standard has been adopted:
Compensation may not be had if, using both eyes, the
claimant can see better, in general, than by using the
uninjured eye alone; or, as otherwise stated, if the use of
the injured eye does not contribute materially to the
claimant’s vision in conjunction with the use of the normal
eye.
Hershey Ests. v. Workmen’s Comp. Appeal Bd. (Rhoade), 308 A.2d 637, 639 (Pa.
Cmwlth. 1973) (citations omitted); see also Arevalo v. Workers’ Comp. Appeal Bd.
4
“[This Court’s] review determines whether there has been a violation of constitutional
rights, whether errors of law have been committed, whether board procedures were violated, or
whether necessary findings of fact are supported by substantial evidence.” Bryn Mawr
Landscaping Co. v. Workers’ Comp. Appeal Bd. (Cruz-Tenorio), 219 A.3d 1244, 1252 n.5 (Pa.
Cmwlth. 2019).
5
Claimant did not file a brief with this Court.
3
(Catalent Pharma Sols.) (Pa. Cmwlth. Nos. 2041, 2069 C.D. 2013, filed July 9,
2014).6
Employer first argues that the WCJ erred by finding that Claimant met
his burden of proving that he is entitled to specific loss benefits for the loss of his
right eye for all practical intents and purposes, as well as the permanency of the loss,
when the substantial competent evidence established, inter alia, that Claimant’s
eyesight had continued to improve post-surgery, with healing. Specifically,
Employer contends that the required permanency could not be established because
Claimant’s treating physician and medical expert, Omesh P. Gupta, M.D. (Dr.
Gupta), testified that Claimant’s eyesight continued to improve post-surgically, and
that his visual acuity had improved to better than his pre-injury baseline.
The law is well established that
[t]he WCJ is the fact[-]finder, and it is solely for the
WCJ . . . to assess credibility and to resolve conflicts in the
evidence. Neither the Board nor this Court may reweigh
the evidence or the WCJ’s credibility determinations. In
addition, it is solely for the WCJ, as the fact[-]finder, to
determine what weight to give to any evidence. . . . As
such, the WCJ may reject the testimony of any witness in
whole or in part, even if that testimony is uncontradicted.
W. Penn Allegheny Health Sys. v. Workers’ Comp. Appeal Bd. (Cochenour), 251
A.3d 467, 475 (Pa. Cmwlth. 2021) (quoting Hawbaker v. Workers’ Comp. Appeal
Bd. (Kriner’s Quality Roofing Servs. & Uninsured Emp. Guar. Fund), 159 A.3d 61,
69 (Pa. Cmwlth. 2017) (internal citations, quotations, and brackets omitted)).
6
Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code §
69.414(a), an unreported panel decision of this Court issued after January 15, 2008, may be cited
for its persuasive value, but not as binding precedent.
4
In addition,
“[f]or purposes of appellate review, it is irrelevant whether
there is evidence to support contrary findings; if
substantial evidence supports the [fact-finder]’s necessary
findings, those findings will not be disturbed on appeal.”[7]
Verizon [Pa.] Inc. v. Workers’ Comp[.] Appeal [Bd.]
(Mills), 116 A.3d 1157, 1162 (Pa. Cmwlth. 2015). When
“performing a substantial evidence analysis, this Court
must view the evidence in a light most favorable to the
party who prevailed before the fact-finder.” WAWA v.
Workers’ Comp[.] Appeal [Bd.] (Seltzer), 951 A.2d 405,
408 (Pa. Cmwlth. 2008). Further, when determining
whether substantial evidence exists to support a finding of
fact, this Court must give to the party in whose favor the
appealed decision was decided “the benefit of all
inferences that can logically and reasonably be drawn
from the evidence.” B.J.K. v. Dep[’t] of Pub[.] Welfare,
773 A.2d 1271, 1276 (Pa. Cmwlth. 2001).
Obimak Enter. v. Dep’t of Health, 200 A.3d 119, 126 (Pa. Cmwlth. 2018).
In the instant matter, Dr. Gupta testified during his original deposition:
Q. Now, you suggested in your direct testimony that
[Claimant’s] injured eye provides very little use as far as
his uninjured eye. And why is that?
A. Well, I say that for two reasons. Number one, the is
[sic] visual acuity in the right eye is not good. In
addition, the visual acuity in his left eye is really good.
And whenever you have a scenario when one eye’s
visual acuity is very good and the other eye is not so
good[,] the bad eye doesn’t really aid too much in the
functioning, day-the-day [sic] functioning.
Q. When looking at [independent medical evaluation
(IME) physician and Employer’s medical expert, Edward
H. Bedrossian, Jr., M.D.’s (]Dr. Bedrossian[][)] report[,]
7
“Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Obimak Enter. v. Dep’t of Health, 200 A.3d 119, 126 (Pa.
Cmwlth. 2018) (quoting B.B. Kim’s Mkt., Inc. v. Dep’t of Health, Div. of Women, Infants & Child.
(WIC), 762 A.2d 1134, 1135 (Pa. Cmwlth. 2000)).
5
his findings as to the corrected vision in the injured [eye,]
I think it was 20/200; is that right?
A. On his examination which was – yea. On December
4, 2018[,] his vision acuity was 20/200.
Q. And that was corrected; is that correct?
A. That was uncorrected and then it improved to 20/100
plus with correction. So just one line better.
Q. So if you have a visual acuity uncorrected of 20/200
or 20/100 plus uncorrected [sic] does that contribute
materially to [Claimant’s] vision in conjunction with
the uninjured eye?
A. No.
Q. And is that your opinion within a reasonable degree of
medical certainty?
A. Yes.
Q. And is that a permanent condition?
A. Yes.
Q. Will his vision in the injured eye improve[ ]over
time?
A. Slightly. Perhaps slightly. It could improve.
Although the visual acuity can fluctuate quite a bit[,] the
right eye visual acuity on this examination on this date
with Dr. Bedrossian was 20/200 that corrected to 20/100.
On my exam[,] the last one that is included in this set
here[,] was 20/70 although I saw him most recently and
the visual acuity was 20/400. So it does vary quite a bit.
But I think he will suffer permanent vision loss in his
right eye. And regardless of where the vision ends of
[sic] [,] it’s going to aid very little to his overall function
in conjunction with his left eye.
Reproduced Record (R.R.) at 196-98 (emphasis added).8
8
Employer’s Reproduced Record fails to comply with the Pennsylvania Rules of Appellate
Procedure. See Pa.R.A.P. 2173 (“[T]he pages of . . . the reproduced record . . . shall be numbered
6
During his rebuttal deposition, Dr. Gupta explained, concerning
Claimant’s peripheral vision:
Q. Do you agree or disagree with Dr. Bedrossian when
he says [sic] that vision on the periphery can
substantially contribute in an injured eye to the vision
in an [sic] non-injured eye?
A. I think – the answer is no, I don’t agree. I think the
injured – the amount of contribution that an injured eye of
20/400 contributes to a healthy eye of 20/20 is minimal.
Q. And Dr. Bedrossian stated . . . , describing the
binocular effect of visual acuity, that the ability of the
brain to adjust a deviation depends on the disparity
between what is in the visual acuity in each eye.
A. That is correct.
Q. So is the fact that there’s a great discrepancy
between the two important or not?
A. It’s very important. In fact, when there is a larger
discrepancy, and in this case the better eye is 20/20 and
the injured eye is 20/400, that’s a relatively large
discrepancy that the amount of contribution of the affected
eye, the injured eye in this case, to the overall visual
acuity and function of that patient is going to be very
minimal. I can tell you that with some other degree of
confidence.
The other type of scenario that we often see is that some
people with this type of visual acuity discrepancy often
find the visual acuity in the right eye not only not useful
but they also find it very distracting because it’s not useful
and also is very distracting, [sic] and some people will
patch it. They’ll put a patch on their eye or block the
vision out completely out of the eye because they prefer
their better eye so much more to this injured eye that they
separately in Arabic figures . . . thus 1, 2, 3, etc., followed in the reproduced record by a small a,
thus 1a, 2a, 3a, etc.”). However, for consistency of reference, the citations herein are as reflected
in the Reproduced Record.
7
don’t even think – even the minimal vision acuity that’s in
there is worth having it out in real life scenarios.
Q. And finally, Doctor, you had stated in your previous
testimony that regardless of where the vision ends up
falling, it’s going to aid very little in his overall function
in conjunction with his left eye.
....
Q. Has anything that you have seen today changed your
opinion in that regard?
A. No. Based on the last two visits that occurred after
our prior meeting, it has only solidified that the vision
acuity in the right eye is permanently affected.
Q. And when asked . . . whether the uninjured eye –
excuse me, whether the injured eye contributes materially
to [Claimant’s] vision in conjunction with the uninjured
eye you said no, within a reasonable degree of medical
certainty. Has anything that has been stated here today
changed your opinion in this regard?
A. No.
R.R. at 269-71 (original emphasis omitted; emphasis added).
The WCJ found Dr. Gupta’s testimony “credible and persuasive.” R.R.
at 35 (WCJ Dec. at 11). Giving Claimant “the benefit of all inferences that can
logically and reasonably be drawn from the evidence[,] Obimak, 200 A.3d at 126
(quoting B.J.K., 773 A.2d at 1276), substantial evidence supports the conclusion that
“the use of the injured [right] eye does not contribute materially to [] [C]laimant’s
vision in conjunction with the use of the normal eye[,]” Hershey Ests., 308 A.2d at
639, and that it is a permanent condition. Accordingly, the WCJ properly concluded
that Claimant met his burden of proving that he is entitled to specific loss benefits
for the loss of the right eye for all practical intents and purposes, as well as the
permanency of the loss. Id.
8
Employer further asserts that the WCJ’s reliance on Dr. Gupta’s
testimony is misplaced because Dr. Gupta’s testimony was equivocal and
incompetent. This Court disagrees.
The question of whether expert medical testimony is
unequivocal, and, thus, competent evidence to support
factual determinations[,] is a question of law subject to our
review. Somerset Welding & Steel v. Workmen’s Comp.
Appeal Bd. (Lee), . . . 650 A.2d 114, 117 ([Pa. Cmwlth.]
1994)[.] . . .
In such cases, we review the testimony as a whole and may
not base our analysis on a few words taken out of context.
Id. “Taking a medical expert’s testimony as a whole, it
will be found to be equivocal if it is based only upon
possibilities, is vague, and leaves doubt.” Kurtz v.
Workers’ Comp. Appeal Bd. (Waynesburg Coll[.]), 794
A.2d 443, 449 (Pa. Cmwlth. 2002). “[M]edical testimony
is unequivocal if a medical expert testifies, after providing
foundation for the testimony, that, in his professional
opinion, he believes or thinks a fact exists.” O’Neill v.
Workers’ Comp. Appeal Bd. (News Corp., Ltd.), 29 A.3d
50, 58 (Pa. Cmwlth. 2011).
Amandeo v. Workers’ Comp. Appeal Bd. (Conagra Foods), 37 A.3d 72, 80 (Pa.
Cmwlth. 2012).
In this case, Dr. Gupta unequivocally testified regarding the reasons
why he believed Claimant’s use of his right eye does not contribute materially to
Claimant’s vision in conjunction with the use of the normal eye, and that it is a
permanent condition. On rebuttal, Dr. Gupta further explained why improvement in
the right eye will not affect its contribution to the left eye and, therefore, why
Claimant’s condition remains permanent. Because Dr. Gupta’s testimony was
unequivocal and competent, the WCJ properly relied on it.
Finally, Employer contends that the WCJ erred by failing to reconcile
Dr. Gupta’s conflicting opinions. Specifically, Employer emphasizes that the WCJ
erred by rejecting Claimant’s visual acuity tests taken after his surgical procedures,
9
and capriciously disregarding Employer’s medical expert, Aiysha Ansari, M.D.,
MSPH’s (Dr. Ansari), testimony. This Court disagrees.
The WCJ expressly determined:
11. [] Claimant’s testimony is accepted as credible,
persuasive and consistent with the credible and persuasive
testimony of Dr. Gupta.
12. The testimony and opinions of Dr. Gupta are accepted
as credible and persuasive. This [WCJ] found it
significant that Dr. Gupta served as [] Claimant’s treating
physician and surgeon commencing almost immediately
following [] Claimant’s work-related injury.
R.R. at 35 (WCJ Dec. at 11).
The WCJ expounded:
The opinions and testimony of Drs. Bedrossian and Ansari
as to whether [] Claimant suffered a loss of use of his right
eye for all practical intents and purposes are rejected as
unpersuasive for the following reasons:
1) Dr. Ansari possesse[s] no [b]oard certifications in
ophthalmology;
2) [] Claimant credibly testified that Dr. Ansari did not use
a paddle during her examination of him on October 30,
2018[,] and she did not ask him to remove the contact lens
he wore in his left eye;
3) Dr. Ansari’s testing indicated that [] Claimant’s injured
right eye had a visual acuity of 20/30, which Dr. Gupta
credibly testified would be impossible in that [] Claimant’s
uncorrected vision in the left eye was always 20/70 or
worse. That [] Claimant’s injured right eye would have
better visual acuity than his healthy left eye is thoroughly
unworthy of belief;
4) [A]s Dr. Gupta credibly testified, [] Claimant’s full
vision field test revealed significant deficits in the
Claimant’s peripheral vision. Dr. Bedrossian’s opinion,
therefore, that [] Claimant’s right peripheral vision
10
contributed to his overall vision is unpersuasive in light of
the vision field test results of April 3, 2019;
5) [B]oth physicians agreed that after one year, []
Claimant’s right visual acuity would be as good as it was
ever going to be. As Dr. Gupta credibly testified, as of
July 10, 2019, [] Claimant’s visual acuity was actually
worse than 20/100;
6) No compelling evidence was submitted to substantiate
the allegation that [] Claimant consciously manipulated his
visual acuity test results. As Dr. Gupta credibly testified,
visual acuity test results can vary from provider to
provider, season to season and as a result of a dry eye
condition;
7) The historical snapshots of [] Claimant’s right visual
acuity test results were not sufficient to overcome the more
recent and compellingly consistent right visual acuity test
results of July and March 2019. Those tests indicated that
[] Claimant’s right visual acuity had stabilized at 20/400;
8) The stabilization of [] Claimant’s right visual acuity in
March and July 2019 supported the opinion of Dr. Gupta
that after one year post injury, [] Claimant’s right eye was
going to heal as much as it was going to heal; [and]
9) [T]he testimony and opinions of Dr. Gupta as []
Claimant’s treating physician and surgeon are more
credible, persuasive and consistent with the severity of the
Claimant’s work[-]related macular off [sic] retinal
detachment and subsequent surgical repairs.
R.R. at 36 (WCJ Dec. at 12).
“Neither the Board nor this Court may reweigh the evidence or the
WCJ’s credibility determinations.” W. Penn Allegheny Health Sys., 251 A.3d at 475.
Because “substantial evidence supports the [WCJ]’s necessary findings, [the WCJ’s]
findings will not be disturbed on appeal.” Obimak, 200 A.3d at 126 (quoting Verizon
Pa. Inc., 116 A.3d at 1162). Accordingly, the WCJ properly rejected Claimant’s
visual acuity tests taken after his surgical procedures and did not capriciously
disregard Dr. Ansari’s testimony.
11
Employer next argues that the WCJ erred by denying Employer’s
objection to the rebuttal testimony of Claimant’s expert and denying Employer’s
request to address the rebuttal testimony, resulting in a violation of Employer’s right
to due process when new evidence was relied upon in finding a specific loss. This
Court disagrees.
Here, at the January 23, 2019 WCJ hearing, the status of the expert
depositions was discussed. The WCJ summarized:
We had a brief off-the-record discussion. [] Claimant’s
medical expert[, Dr. Gupta,] is going to testify by
deposition.
....
31st, January 31st.
An IME report was completed. [Claimant’s counsel] has
reviewed it. A lot of things can be resolved by virtue of
the IME doctor’s findings. However, [] Employer wanted
the opportunity to refine certain things, specifically,
wanted the IME doctor[, Dr. Bedrossian,] to address
whether [] Claimant suffered a specific loss of the eye for
all intents and purposes.
Otherwise, it’s a closed period of disability because []
Claimant has returned to work without a loss of earnings
with [] Employer.
I asked [Employer’s counsel] to expedite receipt of the
supplemental report so it’s in hand by the time of the
deposition on January 31st.
I know that’s ambitious under the circumstances but
doable, especially since the IME was in December. He
doesn’t have to reinvent the wheel. So proceed with the
deposition.
[Claimant’s counsel], if you don’t get the supplemental
report by the time of your deposition, you’re going to
pay for another deposition of the medical expert to the
extent that he has to augment the original testimony
after receipt of the supplemental report.
12
R.R. at 136-37 (emphasis added).
At the April 10, 2019 hearing, the WCJ described:
[WCJ]: We had a lengthy off-the-record discussion. The
Physical Exam Petition pertains to a test that was ordered
by the IME physician, Dr. Bedrossian, . . . as part of the
IME. [Claimant’s counsel] was gracious enough to
agree to have [] [C]laimant undergo that test and it has
been completed and forwarded to the doctor for his
evaluation. [Claimant’s counsel] has secured his medical
expert by deposition already. Now your expert did or
did not have the test result at that point?
[Claimant’s counsel]: [He] did not.
[WCJ]: Well, if you want a supplemental report from
your expert based upon the new test that you received,
I’m happy to entertain that since he’s already testified.
[Claimant’s counsel]: At a prior hearing, we addressed
this issue that they had not gotten a supplemental report
from Dr. Bedrossian regarding the issue that we’re
involved with here. That is whether there’s a specific loss
of the eye.
[WCJ]: Oh.
[Claimant’s counsel]: And you had ordered that if we
needed to take the doctor’s testimony in response, that
[Employer] would pay for it.
[WCJ]: Okay. All right.
[Claimant’s counsel]: So that issue is covered. I believe
we will have to take his testimony again. So if there is
an issue, we can do this by telephone conference.
[WCJ]: Yes, please. So the deadline for your expert is
May 30[th]. Once you have that deposition, if it comes to
pass that Dr. Bedrossian agrees that the test indicates
something that’s supported [sic] [] [C]laimant’s case,
you’ll not need another deposition; is that right?
[Claimant’s counsel]: There are more complicating
factors.
13
[WCJ]: Okay.
[Claimant’s counsel]: They’ve scheduled another
doctor’s deposition.
[WCJ]: Who did?
[Claimant’s counsel]: The defense as a fact witness
so –
[WCJ]: Who is that?
[Employer’s counsel]: It’s Dr. Ansari who examined []
[C]laimant back in October. She performed visual acuity
testing in both eyes.
[WCJ]: IME doctor or treating?
[Claimant’s counsel]: Neither.
[Employer’s counsel]: Neither.
[Claimant’s counsel]: It’s a premises doctor. It’s someone
that they have on the premise [sic] at the airport. An issue
arose during his employment, he went up to see them,
boom.
[WCJ]: I see. She’s an agent?
[Employer’s counsel]: That’s our position, Your Honor.
[WCJ]: She’s an agent of [] [E]mployer, [Dr.] Ansari?
[Employer’s counsel]: [Dr.] Ansari.
[Claimant’s counsel]: Yes.
[WCJ]: And she’s going to testify
[Employer’s counsel]: April 29th.
[WCJ]: About the --
[Employer’s counsel]: The acuity testing she performed
in both eyes on October 30th.
....
14
[WCJ]: Is that not in the paperwork? The notes of Dr.
Ansari?
[Employer’s counsel]: I don’t believe it specifies in her
testimony. We would need to address the specificity of
the testing and her interpretation.
[WCJ]: I don’t want this gone [sic] off the reservation into
an entire full-blown deposition. I mean, if you want to
establish the factual foundation for Dr. Ansari’s
conclusions, I’m happy to do that, but there’s no need to
have a fourth or fifth deposition. So[,] confine it if you
would, direct and cross, [Claimant’s counsel], to the
matter at hand.
[Claimant’s counsel]: Absolutely.
R.R. at 145-49 (emphasis added).
Dr. Bedrossian was deposed on April 19, 2019. Dr. Gupta’s rebuttal
testimony was subsequently taken at Claimant’s expense. At the July 30, 2019
hearing, the WCJ explained:
[WCJ]: Regarding the timing of the second deposition of
[Dr.] Gupta. I was initially inclined to have [Claimant’s
counsel] proceed with [] [E]mployer paying for the
deposition, but then I think a part of it was I wanted it to
be a half an hour deposition and Dr. Gupta charge you
accordingly. He wasn’t about to do that, which I wasn’t
happy with. So at that point I kind of hesitated on it.
Didn’t you offer to pay for it and just get it back in your
costs?
[Claimant’s counsel]: Yes. Since he wouldn’t agree to
reduce his fee for [Employer] I said I’ll pay for it and I did,
and we took his rebuttal testimony.
[WCJ]: [Claimant’s counsel] indicated he asked the
questions of Dr. Gupta that were confined to what he
could not have presented before. However,
[Employer’s counsel] purportedly, and I’ll find out for
myself soon enough, used it as an opportunity to either
emphasize or repeat his other questioning from the
first deposition, which I am not really thrilled with,
because that wasn’t the parameter that I established to
15
proceed with the second deposition. Anyway, what’s done
is done.
Off the record [Employer’s] counsel advised that he
might be interested in presenting surrebuttal
testimony based on Dr. Gupta’s second [deposition] –
it’s not going to happen unless something came out that
could not have been foreseen before Dr. Gupta’s
second deposition. So I am going to deny that request for
surrebuttal regardless of what the review of the transcripts
indicate.
....
[WCJ]: . . . .
There is a final listing [sic] August [28, 2019], I think. If
you have something to say on the record then, after
your review of the transcripts, you can certainly make
a statement at the hearing in August.
R.R. at 158-60 (emphasis added). However, Employer’s counsel made no such
statement at the August 28, 2019 hearing. See R.R. at 175-78.
“It is well[-]established law that ‘[t]he admission of evidence is a matter
within the sound discretion of the WCJ.’ CVA, Inc. v. Workers’ Comp. Appeal Bd.
(Riley), 29 A.3d 1224, 1230 n. 12 (Pa. Cmwlth. 2011).” Swigart v. Workers’ Comp.
Appeal Bd. (City of Williamsport), 131 A.3d 117, 121 (Pa. Cmwlth. 2015). Here,
given the numerous opportunities Employer was given to have Claimant examined
and have Employer’s doctors deposed, “[and i]n light of the fact that the WCJ has
authority over what evidence is admitted, and in light of her charge to resolve claims
in an efficient manner, [this Court] see[s] no abuse of discretion in the WCJ’s
determination to prohibit [] [E]mployer from taking the [surrebuttal] deposition[,]”
and to permit Claimant’s doctor’s rebuttal testimony. Id.16
Conclusion
For all of the above reasons, the Board’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
American Airlines, Inc. and :
New Hampshire Insurance Co., :
Petitioners :
:
v. :
:
Chris Brown (Workers’ :
Compensation Appeal Board), : No. 356 C.D. 2021
Respondent :
ORDER
AND NOW, this 9th day of February, 2022, the Workers’
Compensation Appeal Board’s March 5, 2021 order is affirmed.
_________________________________
ANNE E. COVEY, Judge