R.D. Hissam v. WCAB (Chapman Business Properties) ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Richard D. Hissam, :
Petitioner :
:
v. : No. 1344 C.D. 2017
: Submitted: March 23, 2018
Workers’ Compensation Appeal Board :
(Chapman Business Properties), :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: August 22, 2018
Richard D. Hissam (Claimant) petitions for review of an order of the
Workers’ Compensation Appeal Board (Board), dated September 7, 2017. The
Board affirmed the decision of a Workers’ Compensation Judge (WCJ), which
denied Claimant’s claim petitions. We affirm.
Claimant worked for Chapman Business Properties (Employer) as a
maintenance man. On June 3, 2014, Claimant filed a claim petition, alleging that on
December 3, 2013, he sustained a neck injury in the nature of an aggravation of his
foraminal stenosis at C5-6 and C6-7 while working for Employer dismantling heavy
industrial shelving. On that same day, Claimant filed a second claim petition,
alleging that on December 12, 2013, he sustained a neck injury in the nature of an
aggravation of his foraminal stenosis at C5-6 and C6-7 while working for Employer
using a heavy hammer drill in a contorted position. Claimant further alleged that he
was disabled as of December 28, 2013, and ongoing thereafter as a result of both
work-related injuries.
In support of his claim petitions, Claimant testified before the WCJ at
a hearing held on August 20, 2014. Claimant testified that he performed
maintenance for Employer at its industrial park. (Certified Record (C.R.), Notes of
Testimony (N.T.), August 20, 2014, at 8-9.) Claimant testified further that, on
December 3, 2013, he injured his neck and left shoulder while disassembling
industrial shelving with a sledgehammer. (Id. at 14-16.) Claimant explained that he
began to experience numbness and pain in his neck and left shoulder while swinging
the sledgehammer. (Id. at 15-16.) Claimant also testified that he injured his neck
and left shoulder again on December 12, 2013. (Id. at 16-17.) On that date, Claimant
was using a hammer drill to drill through five-to-six inches of concrete and cement.
(Id.) Claimant explained that he was lying in a ditch pushing and pulling the drill
over his head. (Id. at 17-18.) Claimant further explained that while drilling, the drill
abruptly broke through the wall and jerked out of his hand, sending pain down his
neck and left arm. (Id. at 18.)
Claimant stated that his December 12, 2013 injury occurred “close to
quitting time,” so he did not report it to his foreman until the following day.
(Id. at 19-20.) Claimant indicated that after reporting the injury to his foreman, he
left work to seek treatment from his personal doctor, Dr. Grieco. (Id.) Claimant
testified further that he returned to work on December 16, 2013. (Id. at 20.) At that
time, Claimant informed his foreman that his condition was work-related, and his
foreman sent him to Employer’s panel doctor. (Id. at 21.) While treating with
Employer’s panel doctor, Claimant continued to work for Employer in a limited-duty
2
capacity until December 27, 2013, when he stopped working altogether.
(Id. at 22-23.) Claimant stated further that Employer’s panel doctor discharged him
from treatment on December 31, 2013. (Id. at 23.) At that time, Claimant returned
to his personal doctor, who referred him to a specialist, Dr. Joon Lee (Dr. Lee).
(Id. at 23-25.) Claimant testified that when he treated with Dr. Lee, he complained
of severe pain through his neck and down his left shoulder. (Id. at 25.) Claimant
stated that Dr. Lee prescribed physical therapy and strength exercises. (Id. at 27.)
Claimant stated further that Dr. Lee also recommended and ultimately performed
surgery to treat his injury. (Id. at 25-26.)
On cross-examination, Employer’s counsel questioned Claimant about
an alleged tree stand incident. (Id. at 29-30.) Claimant testified that he never
informed his co-workers that he injured his shoulder falling out of a tree stand. (Id.)
Claimant stated that he does not even hunt out of tree stands. (Id. at 30-31.)
Claimant stated further that he did not take his son hunting on December 2, 2013,
the day he had taken off from work specifically to teach his son how to hunt.
(Id. at 31.) Claimant also testified that while at work on December 3, 2013, he
complained to Brandon Withers (Withers), one of his co-workers, about being “sore
and stiff,” but he did not attribute the pain to their work disassembling the shelving.
(Id. at 33-34.) Claimant testified further that he also did not say anything about the
pain to his foreman or superintendent, nor did he seek any medical treatment for the
December 3, 2013 injury. (Id. at 34-35.) Claimant indicated that on the day of the
December 12, 2013 incident, he informed his foreman that he felt like a “bolt of
lightning” shot through his body while using the heavy drill, but his foreman
interpreted his statement as a joke. (Id. at 37-39.) Claimant indicated further that
he did not explain to his foreman that it was not a joke or that he was in real pain.
3
(Id.) Claimant also admitted that he did not say anything to his foreman about either
of his injuries until December 13, 2013—ten days after the first work-related
incident and one day after the second work-related incident.1 (Id. at 35-36.)
Claimant again testified at a hearing held on August 4, 2015. At that
time, Claimant reiterated that he did not fall out of a tree stand in December 2013,
and that he does not hunt from tree stands. (C.R., N.T., August 4, 2015, at 8.)
Claimant also indicated that while he took off of work on December 2, 2013, to go
hunting with his son, he and his son did not go hunting that day. (Id. at 9.) Claimant
admitted that, while in the break room with his co-workers a few days after the
December 3, 2013 incident, he discussed his neck and shoulder pain and the potential
causes of his injury. (Id. at 10-11.) Claimant stated that during that discussion, his
foreman joked that Claimant probably injured himself falling out of a tree stand.
(Id.) Despite being questioned about the tree stand incident at the August 20, 2014
hearing, this was the first time that Claimant mentioned anything about his
foreman’s statements regarding Claimant falling out of a tree stand. (Id. at 11-12.)
Claimant also presented the testimony of his son, Richard Shane
Hissam (Son). Son testified that he, Claimant, and his grandfather would hunt
together and that it was typical that Claimant would take off the first day of deer
hunting season to go hunting. (C.R., Depo. of Richard Shane Hissam at 21.) Son
testified further that he and Claimant planned to go hunting the Monday following
Thanksgiving in 2013, but the plans did not work out and neither he nor Claimant
went hunting that day. (Id. at 21-23.) Son explained that he did not want to go
hunting that year because his grandfather passed away in 2012, and, thus, would not
1
Claimant also testified at a hearing held on April 28, 2015. Claimant’s testimony on that
date is irrelevant to this appeal and, therefore, will not be discussed.
4
be with them. (Id. at 21-22.) Son also stated that while hunting with Claimant in
the past, he never saw Claimant use a tree stand. (Id. at 23.) When he asked
Claimant about tree stands, Claimant told him they are not safe. (Id.) On
cross-examination, Son admitted that he did not have any discussions with Claimant
about being injured at work. (Id. at 26-27.)
Claimant also presented the deposition testimony of Dr. Lee, who is
board certified and specializes in spine surgery. (C.R., Depo. of Dr. Lee at 4-6.)
Dr. Lee testified that he evaluated Claimant on January 17, 2014, as a referral from
Claimant’s primary care physician. (Id. at 7-8.) Dr. Lee explained that on that date
he performed a physical examination of Claimant, which revealed mild weakness
and decreased sensation in Claimant’s left arm but no observable signs of jerkiness
or hyperreflexia. (Id.) Dr. Lee explained that he initially believed that Claimant had
developed a syrinx—i.e., a fluid buildup within the spinal cord—and that Claimant’s
injury was an exacerbation of the syrinx. (Id.) As a result, Dr. Lee ordered a new
MRI, which revealed spondylitic discs at C5-6 and C6-7 and some symmetric
foraminal stenosis at C5-6 and C6-7. (Id. at 10.) Dr. Lee testified that he explained
to Claimant that injections and ultimately surgery to decompress and fuse the nerves
may be required if Claimant’s attempts with physical therapy were unsuccessful.
(Id. at 10-11.) Dr. Lee testified further that he ultimately performed the surgery on
Claimant’s cervical spine on March 24, 2014. (Id.) Based on his treatment of
Claimant, Dr. Lee opined within a reasonable degree of medical certainty that
Claimant had sustained an exacerbation of spondylitic discs at C5-6 and C6-7.
(Id. at 19-20.) When asked about whether the December 2 and December 12, 2013
work-related incidents played a role in Claimant’s condition, Dr. Lee opined that
5
Claimant’s main injury was consistent with the overhead, repetitive drilling activity
with heavy equipment. (Id. at 21-22.)
On cross-examination, Dr. Lee admitted that his opinion as to the cause
of Claimant’s injuries was based entirely upon the mechanism of injury provided to
him by Claimant—i.e., that the injury was work-related. (Id. at 26-27.) Dr. Lee
explained that he did not learn the specific details of Claimant’s work-related
incidents until after he made his diagnosis. (Id. at 27-29.) In fact, Dr. Lee indicated
that it was not until the day of his deposition that he learned about the two incidents
that Claimant described at work. (Id. at 29.) Dr. Lee also admitted that his office
notes from the January 17, 2014 visit did not include any history of a work-related
injury or any indication that Claimant’s work activities caused Claimant’s condition.
(Id. at 27-28.) Dr. Lee further admitted that a fall from a tree stand “certainly could
be consistent” with Claimant’s symptoms. (Id. at 41.)
In opposition to Claimant’s claim petitions, Employer presented the
deposition testimony of Withers. Withers testified that he, like Claimant, performed
maintenance for Employer at its industrial park. (C.R., Depo. of Brandon Withers
at 4.) Withers testified further that, on December 3, 2013, he worked with Claimant
the entire day, disassembling industrial shelving in the warehouse. (Id. at 7, 12.)
Withers stated that, before lunch on that date, Claimant complained of discomfort
and pain in his shoulder. (Id. at 8.) Withers stated further that after lunch, he and
Claimant continued to disassemble the industrial shelving. (Id.) Withers also
explained that, while in the breakroom with his co-workers after Claimant returned
to work following the first day of deer hunting season, Claimant explained how he
had fallen out of a tree stand and injured his shoulder. (Id. at 9.)
6
Employer also presented the deposition testimony of Martin Higgins
(Higgins), an investigator for Chubb and Son Insurance (Chubb) with 20 years of
training and experience. (C.R., Depo. of Martin Higgins at 3-5.) Higgins explained
that as an investigator with Chubb, he is required to investigate claims that may be
fraudulent or require more information. (Id. at 3-4.) Higgins explained further that
Claimant’s claim was one of those claims that had been assigned to him for further
investigation. (Id. at 6.) Higgins stated that he attempted to speak with Claimant
multiple times to discuss the claim, and he finally spoke with Claimant on
January 15, 2014. (Id. at 9-11.) Higgins testified, however, that when he told
Claimant that he wanted to meet to discuss the claim, Claimant stated that his injury
was not work-related, that he was no longer pursuing a workers’ compensation
claim, and that he was not interested in meeting with Higgins. (Id.) Higgins testified
further that he did not have the opportunity to ask Claimant if he had fallen out of a
tree stand or if the injury had occurred outside of work because Claimant ended the
call. (Id. at 20-21, 23-24.)
Employer also presented the deposition testimony of Raymond
Drabicki, M.D. (Dr. Drabicki), who is board certified in orthopedic surgery and
specializes primarily in arthroscopic surgery of the shoulder and knee. (C.R.,
Depo. of Dr. Drabicki at 4-5.) Dr. Drabicki testified that, based on his independent
medical examination of Claimant, he opined within a reasonable degree of medical
certainty that Claimant had sustained a hypertension injury to the cervical spine and
neural compression. (Id. at 9-10.) Dr. Drabicki opined further that it was likely that
Claimant’s work injury was responsible for his condition. (Id.) Dr. Drabicki further
testified, however, that after receiving additional information, he believed that it was
7
“equally plausible” that Claimant’s injury was caused by a fall from a tree stand.
(Id. at 11-12.)
Claimant testified in rebuttal at the hearing held on November 10, 2015.
At that time, Claimant testified that he thought Higgins’s call was a waste of time,
because Employer had already issued a notice of denial and Employer’s panel doctor
had informed him that the injury was not work-related. (C.R., N.T.,
November 10, 2015, at 18.) Claimant also noted that he was in traffic when he
received the call. (Id.)
On May 17, 2016, the WCJ issued a decision, denying Claimant’s claim
petitions. In so doing, the WCJ summarized the witnesses’ testimony and made the
following credibility determinations:
16. This [WCJ] finds the testimony of [Higgins] to be
credible evidence in support of a finding that [Claimant]
stated on January 15, 2014 that his physical condition, his
neck and shoulder complaints were not work-related and
that he would not be pursuing a workers’ compensation
claim. He credibly testified that [Claimant] declined to
provide any further information and he did not have the
opportunity to ask [Claimant] about the deer hunting tree
stand version of the events.
17. The medical expert testimony of Dr. Drabicki is
competent and credible evidence in support of a finding
that [Claimant’s] physical condition could equally be due
to an exacerbation of his pre-existing cervical arthritis as
a result of his work duties in December of 2013 or as a
result of the history of falling out of a tree stand when deer
hunting on or about December 3, [2013]. . . .
18. The testimony of [Withers] is credible testimony in
support of a finding that [Claimant] told his co-worker that
he fell from a tree stand while hunting on the first day of
deer season. We know that to be December 2, 2013 and
this discussion occurred on Tuesday, December 3, 2013[,]
the one occasion when [Claimant] and this witness worked
together on the scaffolding disassembly project. Although
8
the father of the witness is an employee of [Employer],
there is no evidence that his employment relationship
plays any role in this testimony, to the contrary one would
presume that a witness’s employment was secure whether
he testified or not. It is significant that [Claimant] did not
state that this co-worker had any bias towards him. This
co-worker stated that he did not have any problems with
[Claimant], they worked well together.
19. The testimony of Dr. Lee is found credible, in part,
in regards to his opinions that: (a) [Claimant] has a
degenerative cervical spine condition with bone spurs
were [sic] impacting the C6 and C7 nerves. These nerves
were the exact area of [Claimant’s] shoulder, arm and
hand complaints; (b) although the work activities were
unknown to Dr. Lee and described to Dr. Lee immediately
before his deposition he said they could cause an
exacerbation of symptoms, [h]owever, Dr. Lee honestly
conceded that any activities could cause an exacerbation.
More significantly, Dr. Lee stated that the work activities
did not cause or change the pre-existing degenerative
changes and bone spurs as these develop over time.
[Claimant] did not have a herniated disc or any signs of
acute injury.
(WCJ’s Decision at 27-28.) With respect to Claimant’s credibility, the WCJ
reasoned:
This [WCJ] has carefully reviewed
[Claimant’s] hearing testimony. [Claimant’s]
testimony that he aggravated his cervical spine
condition as a result of his work activities on
December 3 and/or December [12] of 2013 is not
credible. This [WCJ] comes to this conclusion for
several reasons, all of which are based upon as [sic]
review of [Claimant’s] testimony.
[Claimant] did not immediately inform
[Employer] of his alleged work-related symptoms of
December 3, which is not fatal. He said he told
[Employer] on December 13, after the prior day drilling
assignment. BUT when [Claimant] appeared and
testified at the hearing on August 4, 2015, he said the
“deer hunting injury story” arose a few days after his
9
arm/shoulder hurt and this story must have come from
his [foreman]. This version is implausible as
[Claimant’s] testimony was that he did not discuss his
symptoms with [his foreman] until December 13.
At the initial hearing, on cross-examination
[Claimant] adamantly stated that he did not tell any
co-workers that he was injured when he fell from a tree
stand while deer hunting. “Never happened”. At the
next hearing [Claimant] now says this incident did
happen, but he now said it was his [foreman] who told
this story. [Claimant] described there were at
least 4 other co-workers present. Yet he did not present
any witness to corroborate his testimony or his version
of events.
Regarding the hunting incident, [Claimant]
said he planned this day off work on December 2, 2013
to train [Son] how to hunt. Yet [Son’s] testimony was
that he hunted in the past with his father and
grandfather. This planned 2013 hunting trip did not
occur because of the grandfather [sic] death about one
year earlier in 2012.
The version of events described by
[Claimant] seem atypical, his shoulder was bothering
him one day. He mentions to his co-worker that his
shoulder was bothering him, but did not describe it was
from the work duties and did not describe there was any
numbness, tingling, sharp pain or soreness. He does
not mention this to anyone else. He continues to work
his regular job for 10 days, without any comment or
excuse.
[Claimant] describes pain on December 12
after drilling, which is 100 times his prior discomfort.
He describes symptoms so dramatic -- “a bolt of
lightning went right down my body”, “it just came
down my neck and shot out my arm” -- that his
[foreman] thought he was joking. Again, there is an
inconsistency in [Claimant’s] testimony as he says it
was near the end of the work day so he did not say
anything, “it might have been the next day”.
[Claimant] goes home on the 12th and the
next morning he asks his [foreman] to go to his
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personal doctor. [Claimant] claims he told his
[foreman] that this request was for a work-related
problem, but that seems inconsistent with [Employer’s]
action on Monday, the 16th. On that occasion, when
[Claimant] mentions his condition is work-related, his
[foreman] immediately sends [Claimant] to the
designated healthcare practitioner. It seems odd this
would not be the [foreman’s] response on the 12th, if
[Claimant] truly stated he had a work-related problem.
When [Claimant] is contacted by the Chubb
insurance investigator, [Claimant] will not discuss his
claim with him. It’s not worker’s comp. This
telephone call happened January 15, just two days
before the first Dr. Lee appointment of January 17.
Recall, at the first Dr. Lee visit, the office notes do not
reflect that [Claimant] gave any history of a
work-related injury or that work activities caused him
to have symptoms.
(Id. at 28-29.)
Based on her credibility determinations and reasoning, the WCJ
concluded that Claimant failed to meet his burden of proving that he suffered a
work-related injury on December 3 or December 12, 2013. (Id. at 30.) Claimant
appealed the WCJ’s decision to the Board, which affirmed the WCJ’s decision.
Claimant now petitions this Court for review.
On appeal,2 Claimant argues that the WCJ erred by failing to provide a
reasoned decision as required by Section 422(a) of the Workers’ Compensation Act
(Act).3 More specifically, Claimant argues that the WCJ’s decision is not reasoned
because: (1) the WCJ applied the incorrect burden of proof to Claimant’s claim
2
Our standard of review is limited to determining whether constitutional rights were
violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law,
2 Pa. C.S. § 704.
3
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 834.
11
petitions; (2) the WCJ misapplied the “missing witness rule” and drew an
impermissible, adverse inference against Claimant;4 and (3) the WCJ failed to find
that Claimant’s medical evidence was unequivocal and competent.5
Section 422(a) of the Act provides, in pertinent part, that all parties in
a workers’ compensation case 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 decision of a WCJ
is “reasoned” if it allows for meaningful appellate review without further
elucidation. Daniels v. Workers’ Comp. Appeal Bd. (Tristate Transp.),
828 A.2d 1043, 1052 (Pa. 2003). In order to satisfy this standard, a WCJ does not
need to discuss every detail of the evidence in the record. Dorsey v. Workers’ Comp.
Appeal Bd. (Crossing Constr. Co.), 893 A.2d 191, 194 n.4 (Pa. Cmwlth. 2006),
appeal denied, 916 A.2d 635 (Pa. 2007). Rather, Section 422(a) of the Act requires
WCJs to issue reasoned decisions so that this Court does not have to “imagine” the
reasons why a WCJ finds that the testimony of one witness was more credible than
the testimony of another witness. Id. at 196.
Under Section 422(a) of the Act, a WCJ must articulate the objective
rationale underlying his or her credibility determinations where there is conflicting
witness testimony. Id. A WCJ may satisfy the reasoned decision requirement if she
4
Claimant also suggests that the WCJ again misapplied the “missing witness rule” by not
drawing an adverse inference against Employer for its failure to call Claimant’s foreman as a
witness. This argument lacks merit and need not be addressed, because Employer did not have the
burden of proof with respect to Claimant’s claim petitions.
5
In his brief, Claimant presented three issues for our consideration, all of which relate to
whether the WCJ’s decision was a reasoned decision. Because all of Claimant’s arguments are
interrelated, we will address them together.
12
summarized the witnesses’ testimony “and adequately explained [her] credibility
determinations.” Clear Channel Broad. v. Workers’ Comp. Appeal Bd. (Perry),
938 A.2d 1150, 1157 (Pa. Cmwlth. 2007), appeal denied, 951 A.2d 1167 (Pa. 2008).
Thus, “while summaries of testimony alone would be insufficient to satisfy the
reasoned decision requirement, where a WCJ summarizes testimony and also
objectively explains [her] credibility determinations, the decision will satisfy the
requirement.” Amandeo v. Workers’ Comp. Appeal Bd. (Conagra Foods),
37 A.3d 72, 76 (Pa. Cmwlth. 2012).
Claimant first contends that the WCJ failed to make a reasoned decision
because the WCJ applied an incorrect burden of proof. Claimant argues that the
WCJ imposed a heightened burden of proof upon him—i.e., not just a preponderance
of the evidence—by instead requiring unequivocal proof. In response, Employer
argues that Claimant had the burden to prove that his injury was work-related
through competent, credible, substantial evidence. Employer also argues that
Claimant failed to meet his burden of proof because the WCJ found his testimony to
be not credible.
Claimant’s entire argument is based on a misinterpretation of the
WCJ’s decision. Claimant focuses solely on the medical evidence, but ignores the
fact that the WCJ’s conclusion that Claimant did not meet his burden of proof was
based on the WCJ’s determination that Claimant’s testimony regarding the cause of
his injury was not credible. In other words, while the WCJ made credibility
determinations with respect to the medical testimony, such medical testimony
essentially had no effect on the WCJ’s decision. Rather, the WCJ’s decision was
based upon her finding that Claimant’s testimony as to the cause of his injuries was
13
not credible. In finding that Claimant’s testimony was not credible, the WCJ noted
several inconsistencies in Claimant’s testimony.
First, the WCJ noted that Claimant’s stated purpose for taking the first
day of deer hunting season off of work—i.e., to teach Son how to hunt—seemed
inconsistent, because Son testified that he went hunting with Claimant and his
grandfather in the past. (WCJ’s Decision at 29.) Second, the WCJ explained that it
seemed atypical that Claimant told his co-worker that his shoulder was bothering
him, but then he did not state that his work activities caused his injury or discuss the
injury with any co-workers for ten days. (Id.) Third, the WCJ noted that Claimant’s
version of events was not plausible, because Claimant testified that he did not discuss
his symptoms or injuries with his foreman until December 13, 2013, but yet the “deer
hunting injury story,” which was allegedly made up by his foreman, was discussed
a few days after December 3, 2013. (Id. at 28-29.) Fourth, the WCJ noted that
Claimant’s initial testimony that the tree stand conversation never happened was
inconsistent with Withers’s testimony and his own subsequent testimony on
August 4, 2015. (Id. at 29.) Fifth, the WCJ noted the inconsistencies in Claimant’s
testimony regarding the reporting of his December 12, 2013 injury to his foreman.
(Id.) The WCJ explained that Claimant described his pain as so dramatic and
severe—i.e., like “a bolt of lightning went right down my body”—that his foreman
thought Claimant was joking, yet Claimant did not remember if he even told his
foreman about the pain on the date of the incident or if he waited until the next day.
(Id.) Lastly, the WCJ noted that Claimant’s testimony that he told his foreman that
his injury was work-related on December 13, 2013, seemed inconsistent with
Employer’s actions on December 16, 2013. (Id.) The WCJ explained that it seemed
odd that Claimant’s foreman would not have sent Claimant to Employer’s panel
14
doctor on December 13, 2013, if Claimant had told him his injury was work-related,
because Claimant’s foreman immediately sent Claimant to the panel doctor on
December 16, 2013, after Claimant mentioned that the injury was work-related.
(Id.)
In addition to noting the inconsistencies in Claimant’s testimony, the
WCJ also credited Withers’s testimony that Claimant told Withers that he fell from
a tree stand while hunting, and Higgins’s testimony that Claimant told Higgins that
his injury was not work-related and that he would not be pursuing a workers’
compensation claim. (Id. at 27-28.) It is clear from our review of the record and the
WCJ’s decision that the WCJ adequately and objectively explained her credibility
determinations based on the conflicting evidence before her as required by
Section 422(a) of the Act.
Claimant next contends that the WCJ’s decision was not reasoned
because the WCJ misapplied the “missing witness rule” and drew an impermissible,
adverse inference against Claimant for his failure to present the testimony of his
co-workers present during the “tree stand discussion” and his treating physician,
Dr. Grieco. More specifically, Claimant argues that the application of the “missing
witness rule” is impermissible with respect to his co-workers because his co-workers
were not peculiarly within his control. Claimant argues further that an adverse
inference with respect to Dr. Grieco was also impermissible because such an
inference cannot be drawn with respect to treating physicians. In response,
Employer argues that nothing in the WCJ’s decision reflects that any adverse
inference was made for Claimant’s failure to present Dr. Grieco’s testimony.
Generally, if a party fails to call a witness whose testimony presumably
would support his allegation, “the opposing party is entitled to have the jury
15
instructed that it may infer that the witness, if called, would testify adversely to the
party who failed to call him.” Bentivoglio v. Ralston, 288 A.2d 745, 748 (Pa. 1972).
The missing witness rule provides that
[w]here evidence which would properly be part of a case
is within the control of the party whose interest it would
naturally be to produce it, and without satisfactory
explanation he fails to do so, the jury may draw an
inference that it would be unfavorable to him.
Haas v. Kasnot, 92 A.2d 171, 173 (Pa. 1952). Our Supreme Court interpreted the
“missing witness rule” to be inapplicable if the witness in question is equally
available to both sides in the litigation. Bentivoglio, 288 A.2d at 748. “In other
words, the inference is permitted only where the uncalled witness is peculiarly
within the reach and knowledge of only one of the parties.” Allingham v. Workmen’s
Comp. Appeal Bd. (City of Pittsburgh), 659 A.2d 49, 53 (Pa. Cmwlth. 1995) (citing
Bentivoglio, 288 A.2d at 748), appeal denied, 672 A.2d 310 (Pa. 1996).
Here, it does not appear that the WCJ drew any adverse inferences
against Claimant for his failure to present the testimony of his co-workers or
Dr. Grieco. While the WCJ noted that Claimant did not present medical testimony
from Dr. Grieco in her factual findings, the WCJ did not use that factual finding in
her reasoning. Similarly, the WCJ merely noted the fact that Claimant did not
provide the testimony of his co-workers that were present during the “tree stand
discussion,” but again, did not use her finding as part of her analysis. Claimant has
also not directed us to, nor can we find, any statement within the WCJ’s decision
that specifically indicates that the WCJ drew an adverse inference against Claimant
when making her determination. For these reasons, we conclude that the WCJ did
not misapply the “missing witness rule” or draw an impermissible, adverse inference
against Claimant for failing to provide the testimony of Dr. Grieco or his co-workers.
16
Claimant finally contends that the WCJ’s decision was not reasoned
because the WCJ failed to find that Claimant’s medical evidence was unequivocal
and competent. More specifically, Claimant challenges the WCJ’s credibility
determinations regarding Dr. Lee’s medical testimony and argues that the WCJ’s
analysis with respect to Dr. Lee’s testimony is flawed because the WCJ does not
understand what it means for medical testimony to be unequivocal. In response,
Employer argues that an assessment of Dr. Lee’s testimony reveals vague and
contradictory opinions regarding the cause of Claimant’s injury and, therefore,
Dr. Lee’s testimony is equivocal and not legally competent evidence.
Here, the WCJ found that there was insufficient medical evidence to
unequivocally find that Claimant was injured as a result of work activities.
(WCJ’s Opinion at 28.) This finding appears to be entirely based upon the WCJ’s
determination that Claimant’s testimony regarding the cause of his injuries was not
credible. Dr. Lee admitted that his opinion regarding causation was based entirely
on the history learned from Claimant. Once the WCJ found Claimant’s testimony
to be not credible, there is no factual basis to support Dr. Lee’s testimony that
Claimant’s injuries were work-related. In fact, Claimant even acknowledges in his
brief that the medical opinions regarding any work-related cause for his injuries
assume that the history provided by Claimant was correct.
(See Claimant’s Br. at 23.) For these reasons, we conclude that the WCJ did not err
by failing to find that Claimant’s medical evidence was unequivocal and competent.
For the reasons set forth above, we conclude that the WCJ did not fail
to issue a reasoned decision. Accordingly, we affirm the Board’s order.
P. KEVIN BROBSON, Judge
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Richard D. Hissam, :
Petitioner :
:
v. : No. 1344 C.D. 2017
:
Workers’ Compensation Appeal Board :
(Chapman Business Properties), :
Respondent :
ORDER
AND NOW, this 22nd day of August, 2018, the order of the Workers’
Compensation Appeal Board is hereby AFFIRMED.
P. KEVIN BROBSON, Judge