IN THE COMMONWEALTH COURT OF PENNSYLVANIA FedEx Ground :

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
FedEx Ground
Package System, Inc.
and Broadspire,
Petitioners
v.
Workers’ Compensation
Appeal Board (Dupert),
Respondent
BEFORE:
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No. 43 C.D. 2014
Submitted: June 13, 2014
HONORABLE DAN PELLEGRINI, President Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY
FILED: November 7, 2014
FedEx Ground Package System, Inc. and Broadspire (collectively,
Employer) petitions this Court for review of the Workers’ Compensation Appeal
Board’s (Board) December 19, 2013 order affirming the Workers’ Compensation
Judge’s (WCJ) grant of Jason Dupert’s (Claimant) claim petition. The issues for this
Court’s review are: (1) whether the WCJ issued a reasoned decision; and, (2) whether
the WCJ’s findings and conclusions based upon Steven E. Morganstein, D.O.’s (Dr.
Morganstein) testimony supported the WCJ’s conclusion that Claimant satisfied his
burden of proving causation. Upon review, we affirm.
Claimant worked full-time for Employer as a package handler whose
duties included either inductions (i.e., pushing boxes off of a conveyor onto trays) or
switches (i.e., unloading trailers and transporting loaded trailers with a jockey
wagon).1 His duties required him to move objects weighing up to 100 pounds along
1
Claimant initially worked for Employer for 7 or 8 years in the 1990s. He was rehired in
December 2006.
the system by himself, and heavier objects with a co-worker’s assistance. In the fall
of 2009, Claimant purportedly aggravated a pre-existing right hand injury and as a
result had pain, numbness and tingling throughout his right arm and into his right
shoulder, upper back and neck. On December 8, 2009, Claimant stopped working for
Employer due to right shoulder and arm pain.
On December 23, 2009, Claimant filed a claim petition seeking workers’
compensation benefits.2 Employer denied Claimant’s claim. Hearings were held
before a WCJ on March 4 and March 31, 2010. On June 19, 2012, the WCJ granted
Claimant’s claim petition for lost wages and medical bills on the basis that he
suffered an aggravation of a pre-existing injury in the course of his employment. The
WCJ also awarded Claimant costs, attorney’s fees and interest from December 1,
2009 based upon Employer’s unreasonable contest. Employer appealed to the Board.
On December 19, 2013, the Board affirmed the WCJ’s decision granting Claimant’s
claim petition, amended the WCJ’s ruling granting Employer credit for
unemployment compensation benefits Claimant received, and reversed the WCJ’s
determination that Employer presented an unreasonable contest. Employer appealed
to this Court.3
Employer first argues that the WCJ failed to issue a reasoned decision.
Specifically, Employer asserts that the WCJ erred by: relying solely on Claimant’s
brief for his findings of fact, conclusions of law and analysis, rather than making
independent evidentiary determinations; and, by making vague and incomplete
findings and conclusions as to Claimant’s compensable injury, his average weekly
2
Claimant filed the claim petition pro se. The claim petition did not contain a description of
Claimant’s injuries. He subsequently retained counsel who averred that Claimant’s injuries were to
his right shoulder and arm.
3
“Our review is limited to determining whether an error of law was committed, whether
necessary findings of fact are supported by substantial evidence and whether constitutional rights
were violated.” Williams v. Workers’ Comp. Appeal Bd. (POHL Transp.), 4 A.3d 742, 744 n.1 (Pa.
Cmwlth. 2010).
2
wage and his disability rate. However, Employer did not properly preserve those
issues for our review.
In its appeal to the Board, Employer objected to the WCJ’s
determination that Claimant met his burden of proof, but did not generally aver that
the WCJ failed to issue a reasoned decision, or specifically aver that the WCJ failed
to issue a reasoned decision because he substantially adopted Claimant’s brief and/or
made vague and incomplete findings and conclusions as to Claimant’s compensable
injury, his average weekly wage and his disability rate. See Reproduced Record
(R.R.) at 45a-46a. Because Employer failed to raise those issues in its notice of
appeal from the WCJ’s decision, they were not presented to the Board for
consideration, and the Board did not have any opportunity to address them.4
Pennsylvania Rule of Appellate Procedure 1551(a) states in pertinent
part: “No question shall be heard or considered by the court which was not raised
before the government unit . . . .” Pa.R.A.P. 1551(a). “The reasoning behind this
rule is to provide the agency the opportunity to correct its own error, as well as to
give us the benefit of its expertise and reasons for its actions.”
Ardolino v.
Pennsylvania Sec. Comm’n, 602 A.2d 438, 442 (Pa. Cmwlth. 1992).
Because
Employer failed to raise these issues before the Board, this Court is now precluded
from deciding them.
See Trigon Holdings, Inc. v. Workers’ Comp. Appeal Bd.
(Griffith), 74 A.3d 359 (Pa. Cmwlth. 2013) (an employer’s failure to raise a reasoned
decision challenge before the Board results in its waiver); Brewer v. Workers’ Comp.
Appeal Bd. (EZ Payroll & Staffing Solutions), 63 A.3d 843 (Pa. Cmwlth. 2013)
(issues not raised to the Board are waived and will not be addressed for the first time
on appeal to this Court); GMS Mine Repair & Maint., Inc. v. Workers’ Comp. Appeal
4
The issues Employer raised on appeal to the Board were whether the WCJ’s medical
findings were supported by substantial evidence, whether the WCJ erred in determining that
Employer did not establish a reasonable liability contest, and whether the WCJ erred by failing to
credit Employer for benefits already paid. See Board Op. at 2.
3
Bd. (Way), 29 A.3d 1193 (Pa. Cmwlth. 2011) (in order to preserve issues for this
Court’s review, they must be raised at every stage of a proceeding).
Employer likewise failed to raise the reasoned decision issues in its
petition for review filed with this Court on January 10, 2014. Paragraph 5 of the
petition for review states:
[Employer] filed a timely [a]ppeal from th[e] Decision and
Order of the [WCJ] on July 2, 2012 challenging the
Findings of Fact[] that were pertinent as to medical
problems arising from a 1995 personal injury and
challenging whether the medical evidence supporting the
finding of the 2009 work-related injury was competent and
supported by substantial competent evidence. Further, the
[a]ppeal contended that the WCJ’s findings adopted
completely from [Claimant’s] [b]rief were inconsistent and
not supported by the actual testimony. . . .
R.R. at 4a. Although it contains the parenthetical statement that the WCJ completely
adopted the Claimant’s findings, the petition for review does not assign error on that
basis. See R.R. at 3a-6a. Moreover, although Paragraph 4b of Employer’s petition
for review states that the “WCJ . . . issued a vague Decision without specific findings
regarding the nature of the injury . . . ,” the appeal does not specify that the WCJ’s
decision was not reasoned on that basis, or for failing to specify Claimant’s average
weekly wage and disability rate in its decision. R.R. at 4a.
This Court has stated:
Pa.R.A.P. 1513 requires a petition for review to contain a
general statement of the objections. To properly preserve
an issue, a petition for review filed pursuant to Pa.R.A.P.
1513(d), requires a general statement of objections and
provides the statement of objections will be deemed to
include every subsidiary question fairly comprised therein.
Issues not raised in the petition for review will not be
addressed.
4
United Transp. Union v. Pa. Pub. Util. Comm’n, 68 A.3d 1026, 1042 (Pa. Cmwlth.
2013) (citation and quotation marks omitted). Because Employer’s objections were
not included in its petition for review, and are not “fairly comprised therein[,]” the
issues are waived. Id.
We acknowledge that Employer’s Statement of Issues filed with its
Docketing Statement on February 18, 2014 refers to the WCJ’s error in adopting
Claimant’s findings and conclusions in Issue No. 1, and refers to the WCJ’s
incomplete and vague findings as to Claimant’s injury description in Issue No. 4. 5
See R.R. at 282a-283a; see also Employer’s Designation of the Contents of the
Reproduced Record at ¶ 30. However,
[a]lthough [Pa.R.A.P.] 2154(a) . . . requires that included
with the designation of the parts of the record that counsel
intends to reproduce is a brief statement of the issues to be
presented to the court, this statement of issues is intended to
provide notice to opposing counsel of what parts of the
certified record will be included in the reproduced record, in
order that opposing counsel may file a designation of any
additional parts of the certified record that should be
included in the reproduced record, so that it contains all
relevant parts of the certified record. See Darlington,
McKeon, Schuckers & Brown, Pennsylvania Appellate
Practice 2d, § 2154:2 n. 35. It is not intended to allow the
petitioner to raise new issues not raised in the petition
for review. Accordingly, issues raised for the first time
after the petition for review is filed are waived. Pa.R.A.P.
1513.
N. Hills Passavant Hosp. v. Dep’t of Health, 674 A.2d 742, 745 n.8 (Pa. Cmwlth.
1996) (emphasis added). Because Employer failed to raise its reasoned decision
5
Employer’s Statement of Issues does not refer to the WCJ’s failure to specify Claimant’s
average weekly wage or disability rate.
5
issues in its notice of appeal to the Board and in its petition for review, the issues are
waived.6
Employer also argues that the WCJ’s findings and conclusions based
upon Dr. Morganstein’s testimony did not support the WCJ’s conclusion that
Claimant satisfied his burden of proving causation. Employer stated in its brief:
6
With the exception of Employer’s objection that the WCJ relied upon Dr. Morganstein’s
testimony which was not part of the record, which will be addressed herein relative to Employer’s
second issue, had Employer properly raised and preserved the remaining reasoned decision
objections, we nevertheless would have deemed them meritless. Section 422(a) of the Workers’
Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 834, requires that a WCJ’s
decision must contain “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.”
First, this Court has held “that a WCJ may adopt, verbatim, findings of fact submitted by a
party so long as substantial evidence in the record supports the findings.” Cmty. Empowerment
Ass’n v. Workers’ Comp. Appeal Bd. (Porch), 962 A.2d 1, 9 n.8 (Pa. Cmwlth. 2008). Thus, the
WCJ did not err by adopting portions of Claimant’s brief in its decision.
Second, although Claimant’s claim petition did not contain a description of his alleged
injuries, the December 21, 2009 Notice of Injury that Claimant completed for Employer specified
that he had “nerve damage to [his] right hand,” for which he began treatment on November 4, 2009.
R.R. at 134a. In addition, Employer’s December 31, 2009 Notice of Compensation Denial specifies
Claimant’s injury as “[a]llegedly strained right hand/arm by inducting packages. No specific
incident.” R.R. at 132a. The Notice of Injury and Notice of Compensation Denial were entered
into the WCJ’s record by Employer without objection. See R.R. at 64a, 97a. At the March 31, 2010
WCJ hearing, Claimant’s counsel also informed the WCJ that “[C]laimant is alleging an injury to
his right upper extremity through continued use, a strain and sprain.” R.R. at 61a. Further, the
WCJ specifically stated in his decision that Claimant’s pre-existing right hand injury was
aggravated by his work for Employer resulting in right hand and arm symptoms, and that Employer
is responsible to pay medical expenses therefor. See R.R. at 39a-41a, 44a. Thus, the WCJ’s
description of Claimant’s compensable injury was not vague or incomplete. The same is true of the
average weekly wage and disability rate. Employer entered Claimant’s Statement of Wages into the
record without objection. See R.R. at 97a. The Statement of Wages reflects Employer’s calculation
of Claimant’s average weekly wage, which was $477.92, and his weekly compensation rate, which
was $418.00. See R.R. at 139a. The accuracy of these totals has never been challenged.
Accordingly, since the injury description, average weekly wage and disability rate were in the
record, the WCJ’s purported failure to specify them does not constitute reversible error.
Because the WCJ clearly and concisely stated the reasons for his determination, which are
supported by the record evidence, and the Board and this Court are able to determine why and how
he reached the result he did, we conclude that the WCJ issued a reasoned decision.
6
The [Board] affirmed the WCJ’s Decision that found that
the medical testimony presented by . . . Claimant through
the testimony of Dr. Morganstein was competent and
credible. [Employer] contends that . . . the record
demonstrates that those findings and the testimony of Dr.
Morganstein did not provide a competent medical opinion
to meet Claimant’s burden of proof under the [c]laim
[p]etition[,] and that Dr. Morganstein did not provide the
requisite opinion connecting [Claimant’s] current medical
issues with his work activities in 2009. [Employer] also
contends that there were odd statements in [the WCJ’s
f]indings regarding the concept of bias on the part of a
physician who examined . . . Claimant on behalf of . . .
Employer which is not consistent with applicable law.
R.R. at 5a.
The law is well settled in Pennsylvania that in order to
receive workers’ compensation benefits[,] an injured
worker has the burden of proving all elements necessary to
support an award. It is a fundamental princip[le] of
workers’ compensation law that, absent proof of workrelated causation of an injury, an employee is not entitled to
compensation benefits. Moreover, in cases where the injury
is not attributable to a specific incident and the causal
relationship between the injury and the employment is not
obvious, unequivocal medical testimony is required to
establish this causal relationship.
Rockwell Int’l v. Workers’ Comp. Appeal Bd. (Sutton), 736 A.2d 742, 744 (Pa.
Cmwlth. 1999) (citations omitted).
Whether expert testimony is equivocal is a question of law
that is fully subject to this Court’s review. When making
that determination, we must examine the entire testimony of
a witness as a whole and not rely upon a fragment of
testimony removed from its context. A medical expert’s
testimony is unequivocal if, after providing a foundation, he
testifies that he believes or thinks the facts exist.
Inservco Ins. Servs. v. Workers’ Comp. Appeal Bd. (Purefoey), 902 A.2d 574, 579
(Pa. Cmwlth. 2006) (citations omitted).
Finally, this Court has held that
“[s]pecifically included in the statutory conception of ‘injury’ is a job-related
7
aggravation of a pre-existing condition, even if the underlying disease itself was not
caused by a work-related injury.” Lewistown Hosp. v. Workmen’s Comp. Appeal Bd.
(Kuhns), 683 A.2d 702, 707 (Pa. Cmwlth. 1996).
At the March 31, 2010 WCJ hearing, Claimant testified and presented
Dr. Morganstein’s deposition testimony in support of his claim. 7
According to
Claimant, he suffered a right wrist injury in September 1996 which resulted in his
right median nerve and two tendons being severed.8 Following surgery and therapy,
Claimant’s right hand remained numb between his pinky and his thumb, and he had
limited use of his fingers, however, he fulfilled his job responsibilities for Employer
without restriction.
Claimant explained that at the end of September or beginning of October
2009, while at work he began experiencing pain in his neck that traveled down his
entire right arm and into his fingertips when he performed his induction duties.
Claimant reported the problem to his immediate supervisor Dan Steele, and asked if
there was a temporary job he could perform to allow his arm a chance to heal.
Claimant was instructed to see Employer’s sort manager Jan Kauffman (Kauffman).
Claimant informed Kauffman that he was having problems doing his inductions, and
asked if there was other work to which he could temporarily be assigned. At first,
there were no available jobs. Eventually, Employer’s day sort manager Lou Strawser
told Claimant to perform driving in the yard. Claimant described that his temporary
reassignment did not fix his condition, but “because [he] d[id]n’t actually have to
physically lift boxes out there, . . . it . . . didn’t aggravate the problem.” R.R. at 74a.
7
By July 15, 2014 letter from the Board’s administrative officer, Dr. Morganstein’s
deposition transcript was supplied to this Court for incorporation into the record previously certified
to this Court.
8
The record is unclear as to exactly when Claimant’s previous injury occurred. There are
references to both 1995 and 1996. Nevertheless, it is undisputed that Claimant’s prior hand injury
was not work-related.
8
Claimant declared that when the temporary position became unavailable,
he returned to his induction job, which caused his pain to worsen. He remained in
that job until November 4, 2009, when he began treating with hand specialist Dr.
Stephen Dailey (Dr. Dailey), who took an x-ray and conducted a physical
examination. Dr. Dailey prescribed pain medication, placed him on limited work
duty and referred Claimant to the Susquehanna Valley Management Center (SVMC).
Claimant testified that Employer accommodated him by placing him on
limited duty at a brush station, where he was required to flip over-sized packages on
the conveyor and re-label them. Claimant articulated:
I tried my best and my hardest to work the brush station, but
I was just unable to do that. The jockey position, I was
unable -- it’s not a hard job, but . . . I wasn’t able to even
just push the buttons and move the levers that I needed to
do.
R.R. at 78a. Claimant discussed his difficulties with Kauffman, Employer’s hub
manager and Employer’s human relations specialist Darren Meiser (Meiser).
According to Claimant, Meiser gave him a medical certification for Dr.
Morganstein to complete. Dr. Morganstein’s physician’s assistant Jamie Walters
(Walters) reviewed the medical certification and declared on a prescription pad that
Claimant was “unable to perform any of the job tasks at that time.” R.R. at 80a; see
also R.R. at 215a. Claimant returned the completed medical certification to Meiser.
Although Claimant last worked for Employer on December 8, 2009,9 he maintains
that he and Meiser attempted to keep his job available. When their efforts became
unsuccessful, Claimant applied for and began receiving unemployment compensation
benefits.
Claimant admitted that if Employer had a job available within his
limitations, he would consider taking it. Specifically, Claimant believed he could do
9
Claimant took vacation days on December 10 and 11, 2009. Walters’ medical note was
dated December 15, 2009.
9
a left-arm-only job. However, he does not think that Employer has any jobs that he
could perform, even in the yard.
Claimant explained that at the SVMC on November 24, 2009, Malik
Momin, M.D. injected him with medication and prescribed Lyrica.
Claimant
followed up with Maximilian Braun III, M.D. at SVMC in December 2009 who
recommended that Claimant see Dr. Morganstein. Claimant stated that when he
treated with Walters she prescribed Neurontin and physical therapy.
Claimant
testified that he could not attend physical therapy while he was working because he
was over his head in debt and could not afford to miss work. Claimant reported that
his condition has remained the same since he began medical treatments in November
2009 and that he continues to treat with Dr. Morganstein’s practice.
Claimant
expressed that his 2009 pain was “not directed in [the area of his 1996 injury and
surgery]. The stitching, the things that they’ve done there have all remained intact.
There’s no new damage to that existing injury.” R.R. at 91a-92a.
Dr. Morganstein testified that Claimant was referred to his practice for
pain management in December 2009.10 He confirmed that Walters took Claimant’s
history, which included a description of his job requirements and the history of his
pre-existing right-hand injury.
Walters also conducted a physical examination,
concluded that Claimant had right upper extremity pain due to his job activities, and
prescribed various anti-inflammatory and pain medications for him. Dr. Morganstein
explained that although his practice did not have all of Claimant’s medical records,
Claimant had confirmed that despite his prior hand injury, he was initially able to
perform his job without restrictions. Ultimately, Dr. Morganstein recommended that
10
Although Dr. Morganstein saw Claimant a couple of times, Claimant was primarily
treated by Walters. Dr. Morganstein explained that he reviewed Walters’ care and signed off on
Claimant’s treatments.
10
Claimant have a spinal cord stimulator implanted, which procedure was performed on
Claimant and it has brought him a significant amount of relief.
Dr. Morganstein was familiar with the type of work Claimant performed
for Employer. He opined that because Claimant still experienced constant pain and
limitations in his right arm, and based upon his required job activities, he did not
think Claimant could return to his full job responsibilities, particularly since the
stimulator implantation left Claimant with a 5-pound lifting restriction. However, Dr.
Morganstein explained that if Claimant’s surgeon cleared Claimant as to the
stimulator, he would return Claimant to work limiting the use of his right arm to a
non-repetitive 20 to 25-pound lifting restriction, and unrestricted use of his left arm.
In support of its case, Employer introduced deposition transcripts of
Kauffman, Meiser, Employer’s Harrisburg hub safety advocate Diana Heidlebaugh
(Heidlebaugh) and orthopedic surgeon Robert J. Maurer, M.D. (Dr. Maurer).
Kauffman confirmed that until 2009, Claimant never brought to his attention any
problems with this right hand or arm. Kauffman described that when Claimant
reported his difficulties to him and Strawser in 2009, Claimant informed him that he
was having issues with his right wrist, which “was an injury from the past.” R.R. at
145a. He stated that Claimant did not connect his right hand/wrist problems to his
current work duties. Kauffman removed Claimant from his induction shifts and
moved him to the yard for a few days.
Because Claimant could not do what
Kauffman deemed Employer’s easier job functions, he referred Claimant to Meiser.
Meiser testified that Kauffman brought Claimant to him on December 9,
2009 in an effort to assess accommodations for Claimant. Meiser reported:
He did indicate to me that this was from something a long
time a[]go. He had made mention of putting his fist through
some type of glass cabinet . . . . But, you know, . . . he said .
. . it bothered him recently. And he . . . had brought that
note to [Kauffman] and [Kauffman] was . . . trying to work
11
with him. But he wanted to see if there was anything else . .
. we could possibly do.
R.R. at 196a. Meiser stated that Claimant did not specifically mention to him that
Claimant’s condition was work-related. Meiser asked Claimant to supply a medical
certification completed by his physician because Claimant’s initial job restriction note
did state what work Claimant was able to perform. Moreover, Meiser explained that
Claimant called and notified him on December 14, 2009 that he would obtain the
medical form the following day, and that he may seek workers’ compensation
benefits. On December 21, 2009, Claimant hand-delivered Walters’ note to Meiser
that stated Claimant could not perform any of Employer’s jobs. Meiser described that
until that time Employer accommodated Claimant’s limitations and even put him on
short-term leave status without having Claimant’s medical documentation. However,
due to Claimant’s mention of a workers’ compensation claim, Meiser referred
Claimant to Heidlebaugh.
Heidlebaugh met with Claimant on December 21, 2010. She stated that
Claimant described that he had pain in his wrist that traveled up his right arm.
Claimant also informed her about his 1996 injury during which he lacerated his right
hand. Heidlebaugh testified that Claimant asked her if Employer would accept a
workers’ compensation claim.
She answered that it was not her decision.
Heidlebaugh gave Claimant Employer’s injury claim forms, which he completed in
her office. Claimant noted on the Notice of Injury form that he over-exerted on
inductions over time. Claimant described his injury as “nerve damage to right hand”
which he had in October 1995. R.R. at 178a; see also R.R. at 183a-184a.
Dr. Maurer conducted an independent medical examination (IME) of
Claimant at Employer’s request on April 30, 2010. He reviewed Claimant’s medical
records, took Claimant’s history that included descriptions of Claimant’s job
responsibilities and previous right hand injury, and conducted a physical examination.
12
Dr. Maurer confirmed that Claimant had right-sided neck pain that radiated into his
right arm and wrist. He opined that Claimant had early, mild cervical degenerative
disc disease that caused irritation of nerve roots which, combined with the scar tissue
from his previous nerve injury and surgery, “can compound the symptoms of nerve
pain that -- that a patient such as [Claimant] is experiencing. And that type of process
is likely to get worse as the patient gets older . . . .”11 R.R. at 226a-227a. Although
Dr. Maurer acknowledged that Claimant’s induction job required repetitive arm
activities which caused Claimant to be more symptomatic, he rejected that Claimant
was injured performing any work activity for Employer. Dr. Maurer opined that
Claimant could work half days as a package handler and half days jockeying trailers
in the yard.
The law is well established that “[t]he WCJ is the ultimate factfinder and
has exclusive province over questions of credibility and evidentiary weight.” Univ. of
Pa. v. Workers’ Comp. Appeal Bd. (Hicks), 16 A.3d 1225, 1229 n.8 (Pa. Cmwlth.
2011). “The WCJ, therefore, is free to accept or reject, in whole or in part, the
testimony of any witness, including medical witnesses.” Griffiths v. Workers’ Comp.
Appeal Bd. (Red Lobster), 760 A.2d 72, 76 (Pa. Cmwlth. 2000).
Here, the WCJ concluded that Claimant was entitled to workers’
compensation benefits. The WCJ stated:
[Claimant] has clearly met his burden of proof with
substantial, competent evidence that he was injured while
performing his duties as a package handler for [Employer] .
. . . [I]t is clear, based on [C]laimant’s own testimony and
the testimony of his treating physician, Dr. Morganstein,
that [C]laimant’s current work injury is an aggravation of a
previous injury, due to the repetitive nature of [C]laimant’s
job with [Employer].
11
Claimant’s spinal stimulator was implanted after the IME but before Dr. Maurer’s
deposition. Dr. Maurer admitted that it was the appropriate treatment for Claimant’s condition.
13
WCJ Dec. at 12. The WCJ specifically deemed Kauffman’s and Meiser’s testimony
credible and reliable insofar as it comports with Claimant’s testimony, but recognized
that they suffer from an element of bias in Employer’s favor. Pertaining to the
medical testimony, the WCJ concluded:
9.) The reports of Dr. Morganstein are credible because he
has treated [C]laimant since 2009.
As such, Dr.
Morganstein has a much more comprehensive
understanding of [C]laimant’s ongoing condition. Dr.
Morganstein’s reports clearly indicate a new onset of severe
pain following the injury.
10.) The report of Dr. Maurer is not competent and credible
where it diverges from those of Dr. Morganstein, as he has
only examined [C]laimant on one occasion, and, as such, is
not able to form the level of comprehensive understanding
of [C]laimant’s condition that Dr. Morganstein has.
WCJ Dec. at 14.
Neither the Board nor the Court may review the evidence or reweigh the
WCJ’s credibility determinations. Sell v. Workers’ Comp. Appeal Bd. (LNP Eng’g),
771 A.2d 1246 (Pa. 2001).
This Court has stated: “[I]t is irrelevant whether the
record contains evidence to support findings other than those made by the WCJ; the
critical inquiry is whether there is evidence to support the findings actually made.”
Lahr Mech. v. Workers’ Comp. Appeal Bd. (Floyd), 933 A.2d 1095, 1101 (Pa.
Cmwlth. 2007) (quoting Minicozzi v. Workers’ Comp. Appeal Bd. (Indus. Metal
Plating, Inc.), 873 A.2d 25, 29 (Pa. Cmwlth. 2005)).
In this case, the Board affirmed that portion of the WCJ’s decision
granting Claimant’s claim petition because the record evidence supported Dr.
Morganstein’s testimony, and the WCJ deemed Dr. Morganstein more credible than
Dr. Maurer. Finding no error in the Board’s conclusion based upon our review of the
14
record evidence, and since this Court may not review the evidence or reweigh the
WCJ’s credibility determinations, we affirm the Board’s order.
___________________________
ANNE E. COVEY, Judge
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
FedEx Ground
Package System, Inc.
and Broadspire,
Petitioners
v.
Workers’ Compensation
Appeal Board (Dupert),
Respondent
:
:
:
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:
:
No. 43 C.D. 2014
ORDER
AND NOW, this 7th day of November, 2014, the Workers’
Compensation Appeal Board’s December 19, 2013 order is affirmed.
___________________________
ANNE E. COVEY, Judge