C. C. Boatin v. WCAB (George S. May Int'l. Co.) - 1543 & (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Colin C. Boatin, : Petitioner : : v. : : Workers Compensation Appeal Board : (George S. May International Co.), : Respondent : : Petitioner : : v. : : : Workers Compensation Appeal Board : (Metropolitan Life Insurance Co.), : Respondent : No. 1543 C.D. 2007 Colin C. Boatin, BEFORE: No. 1544 C.D. 2007 Submitted: March 20, 2008 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE FLAHERTY FILED: June 4, 2008 Colin Boatin (Claimant) petitions for review from two separate Orders of the Workers Compensation Appeal Board (Board) listed at A06-1312/A061313 and A06-1439 respectively. Order A06-1312/A06-1313 affirmed a decision of the WCJ that denied Claimant s Reinstatement Petition and granted a Termination Petition filed by Metropolitan Life Insurance Company (Metropolitan Life). Order A06-1439 affirmed a decision of the WCJ denying a Claim Petition filed against George S. May International Co. (International). These matters were consolidated for our review. We now affirm the Board s Order at A06-1439. We modify the Board s Order at A06-1312/A06-1313 to reflect that Claimant s benefits for a back injury shall be terminated as of August 8, 1990 as opposed to May 1, 1989. We affirm that Order in all other respects.1 Claimant sustained an injury in the course and scope of his employment with Metropolitan Life while involved in a motor vehicle accident in October of 1988. He began receiving workers compensation benefits pursuant to a Notice of Compensation Payable (NCP) that described his injury as a [s]train/sprain cervical, thoracic, lumbar, etc. Claimant s benefits were suspended as of May 6, 1989 pursuant to a supplemental agreement. On December 19, 1989, Claimant filed a Claim Petition, later amended to a Reinstatement Petition, against this employer. Metropolitan Life filed a Termination Petition on September 4, 1990 alleging Claimant fully recovered from his work-related injury as of May 1, 1989. On July 23, 1990, Claimant filed a Claim Petition alleging that on April 10, 1990 he sustained a herniated disc at L4-5 in the course and scope of his employment with International after falling backwards and landing on concrete. 1 Claimant filed his Petition for Review acting pro se. On August 15, 2007, this Court entered an order granting Claimant s Application to Proceed In Forma Pauperis thereby relieving Claimant of the necessity to file a reproduced record in this matter. Pa R.A.P. 2151(b). Consequently, citation is made to the original record throughout this Opinion. Claimant, however, obtained counsel while this appeal was pending. This is worth noting because in order to preserve issues on appeal to this Court, issues must be discussed in both an appellant s Petition for Review and in his brief. Muretic v. Workers Compensation Appeal Board (Department of Labor & Indus.), 934 A.2d 752 (Pa. Cmwlth. 2007). Claimant s Petition for Review raised numerous issues. Counsel s brief takes many of those issues and drafts legal arguments to support the same. Not all issues raised in Claimant s Petition for Review, however, are covered by Claimant s brief. Nonetheless, in light of the specific circumstances before us, we will address all arguments raised. 2 He sought total disability from April 10, 1990 and ongoing. This Claim Petition was consolidated with the other Petitions filed by Claimant and Metropolitan Life. Claimant testified that he started working for Metropolitan Life in February of 1988. He was injured in a motor vehicle accident and remained out of work as a result until May of 1989. Claimant was terminated from his employment with Metropolitan Life in December of 1989. He disagreed with Metropolitan Life s reasons for his dismissal. Claimant stated that he had not had any other employment since he was fired from Metropolitan Life. It was later revealed, however, that Claimant began working as an executive analyst for International in February of 1990. Claimant further admitted that he began working for General Motors Acceptance Corporation in September of 1989 as an accounts representative while he was still on the payroll with Metropolitan Life. (N.T. 1/17/91, pp. 65, 72, 81, 84, 86). Claimant testified that in April of 1990 he went on a business trip to North Carolina while working for International. He was attempting to put a package in the trunk of a rental car when he slipped and fell on the concrete. He stated that he crawled back to his motel room which was about ten yards from his car.2 Claimant agreed there were no witnesses to this incident. Claimant explained that he continues to have lower back and knee pain. He added that he gets pain in his head and neck radiating down into his elbow and fingers. (N.T. 5/23/01, pp. 15, 17, 18, 24). Claimant presented the testimony of Jason J. Litton, M.D., board certified orthopedic surgeon, who first saw him on August 29, 1990. Dr. Litton 2 Claimant testified at a separate hearing that after falling on the concrete, he ran back to his hotel room that was fifty yards away because he was embarrassed. (N.T. 9/17/90, pp. 9-10). 3 diagnosed Claimant with a herniated disc at the lumbosacral level on the left side. He explained that this was caused by the motor vehicle accident of October 22, 1988. Dr. Litton operated on Claimant on October 5, 1990 whereupon he removed a disc fragment that was impacting the spinal canal. He released Claimant to his pre-injury job on January 7, 1991. According to Dr. Litton, he reviewed an MRI dated February 16, 1989 that showed the herniated disc on the left. He acknowledged that he reviewed another MRI dated June 7, 1990 that showed essentially no change. This fact notwithstanding, Dr. Litton testified that [Claimant] was injured in a car accident in 1988 and herniated the lumbosacral disc on the left, and his symptoms were not severe until he slipped and fell at work on the date you told me and from that point on had increased back and left lower extremity pain. On cross-examination, Dr. Litton admitted that his medical records contained no mention of a 1990 slip and fall injury with International. He further agreed that Claimant did not inform him of the April 10, 1990 incident until after the October 5, 1990 surgery. (Depo. dated 4/29/91, pp. 4-8, 11-13, 15, 17, 22). Metropolitan Life presented the testimony of Alan E. Van Sant, M.D., board certified in rehabilitation medicine and electrodiagnostic medicine, who performed an independent medical examination of Claimant on August 8, 1990. Claimant provided him with a history but did not mention anything about his purported April 10, 1990 work injury with International. Dr. Van Sant testified that there was evidence of symptom magnification. Dr. Van Sant reviewed a May 1, 1989 report authored by a Dr. Spitz that indicated that as of that date Claimant s herniated disc had resolved leaving only some mild residual numbness in the lateral aspect of the foot. The report further indicated Claimant could 4 resume his employment so long as he could get out of the car and stretch every couple of hours and that this indicated that Claimant fully recovered from his herniated disc.3 Dr. Van Sant added that as of the date of his examination, there were no signs of a herniated disc, that Claimant was fully recovered and could work his pre-injury job. (Depo. dated 8/20/91, p. 9-11, 14-16, 17-20, 23, 25). Metropolitan Life further presented the testimony of Warren Brandeis, Associate Branch Manager and supervisor of Claimant. He testified that Claimant was required to attend meetings on Mondays and Fridays, but Claimant failed to attend any Monday meetings after September 1, 1989 and that he rarely attended the Friday meetings. He sent Claimant a letter dated November 30, 1989 directing him to report to the sales office on December 6, 1989. Claimant, however, did not appear. Claimant was terminated on December 8, 1989 for his refusal to come to meetings and/or insubordination. (N.T. 11/15, 1990, pp. 13-14, 18). By decision circulated July 9, 1992, the WCJ rejected Claimant s testimony and that of his medical expert. He credited the medical expert testimony presented by Metropolitan Life. The WCJ concluded that Claimant failed to establish that he once again had an earnings loss attributable to his 1988 work injury. On the contrary, the WCJ found that any loss of earnings Claimant sustained was the result of his being fired from Metropolitan Life due to his insubordination and his failure to attend required meetings. As such, the WCJ denied Claimant s Reinstatement Petition. Further, the WCJ granted Metropolitan Life s Termination Petition and terminated Claimant s benefits for the 1988 injury 3 No objection was made to the testimony of Dr. Van Sant when he referenced the report of Dr. Spitz dated May 1, 1989 or in offering an opinion of full recovery as of that date. (Depo. dated 8/20/91, p. 17-20). 5 as of May 1, 1989. The WCJ also denied the Claim Petition filed against International as he concluded that Claimant failed to present credible evidence that a work-related incident occurred on April 10, 1990. Claimant appealed to the Board and subsequently requested a rehearing on June 24, 1993 to present after-discovered evidence of a head injury. Claimant asserted that in October of 1992, he was diagnosed with organic brain syndrome purportedly caused by blunt trauma sustained in his 1988 automobile accident with Metropolitan Life. Claimant added that this condition affected his memory and could explain some of his prior behavior. In an Opinion dated November 30, 1994, the Board, acting in the interest of justice, vacated the WCJ s Decision and remanded so that Claimant could present noncumulative afterdiscovered evidence on this issue. On February 21, 1997, the WCJ issued a decision wherein he indicated that he reviewed the complete record from the prior proceedings and pointed out that Claimant never mentioned sustaining any blunt trauma to his head pertaining to the October 22, 1988 work injury with Metropolitan Life until Claimant requested a rehearing before the Board. Consequently, the WCJ determined that Claimant s claim of a head injury was barred by the statute of limitations. The WCJ again denied Claimant s Reinstatement Petition against Metropolitan Life and granted the Termination Petition filed by this employer. He dismissed International from the litigation as Claimant did not allege the newlydiscovered head injury had anything to do with this employer. Claimant appealed. In an Opinion dated December 14, 1999, the Board determined Claimant initiated a claim for benefits within three years of being diagnosed with organic brain syndrome. Consequently, it found Claimant s claim was not time 6 barred. Moreover, the Board concluded that the WCJ exceeded the scope of remand in considering the timeliness issue as it already determined that evidence of Claimant s cognitive abilities was to be considered. Therefore, the Board vacated the WCJ s 1997 Decision and remanded again for the WCJ to reconsider all factual issues in this case, including Claimant s rights to disability benefits against either [Metropolitan Life] or [International], and any possible termination or suspension of benefits. (Opinion dated 12/14/99, p. 10). The Board directed that the remand proceeding should be a de novo proceeding. Claimant, in relation to his cognitive/mental injuries, testified that since the October 22, 1988 motor vehicle accident he has experienced vertigo, dizziness, and light-headedness. Claimant asserted that following the accident, he had an inability to read that affected his ability to complete paperwork. He suggested that when he returned to work with Metropolitan Life, he had trouble remembering his schedule or what he was doing. He began treating with Barbara Kuhlengel, M.D. in 1992. Since he began treating, his condition stabilized and his handwriting and speech improved. Claimant stated, however, that he does not believe he could work for either Metropolitan Life or International because he continues to suffer from memory loss and headaches with vomiting when he attempts to read. (N.T. 5/23/01, pp. 10-11, 22, 26). Claimant testified that his head injuries affected the way he presented himself during the original proceedings before the WCJ, that he could not manage his behavior in court or in the attorneys offices, and that the testimony he gave previously was not accurate. He suggested, however, that he had gone over his prior testimony with Mr. Gross to identify inaccuracies and organize materials to 7 help him testify accurately. Claimant added that the medications prescribed by Dr. Kuhlengel have helped him clarify matters. (Id. at 28-30, 50-51). Claimant further presented the testimony of Dr. Kuhlengel, board certified in psychiatry and neurology, who first examined him on October 28, 1992. Dr. Kuhlengel noted a history of Claimant being involved in a motor vehicle accident on October 22, 1988 following which Claimant exhibited various signs of closed head injury and post-concussive syndrome. Upon returning to work, Claimant had trouble reading and writing and things spiraled out of control to the point that Claimant became homeless and had to live out of his car. Dr. Kuhlengel opined that Claimant experiences cognitive and psychological injuries in the nature of major depression and anxiety disorder with partial remission, organic brain syndrome, post concussion syndrome, and conversion disorder which are largely, but not exclusively, the result of the October 1988 motor vehicle accident. When asked for clarification, Dr. Kuhlengel stated that the accident resulted in at least a mild concussion with residuals that impacted his ability to work. He thereafter developed anxiety, depression and conversion disorder due to going through the accident at a time when he was already having a fair amount of distress. According to Dr. Kuhlengel, Claimant has been disabled from performing his preinjury job since the October 22, 1988 work injury. She added that the treatment she rendered Claimant was substantially related to the work injury. (Depo. dated 1/22/02, pp. 14-16, 21, 22, 24-26). Dr. Kuhlengel admitted she authored a report dated May 17, 1994 wherein she stated I now believe that Mr. Boatin s course has not been consistent with closed-head trauma related injuries ¦ It is my recommendation, since Mr. Boatin does not have a very firm head injury claim, that he not take this litigation 8 to trial. Dr. Kuhlengel further admitted that she testified in another matter that Claimant s difficulties, referring, at minimum, to his emotional problems, were attributable to his employment with International. Finally, Dr. Kuhlengel agreed that in 1998, she authored a letter to Edgewater Outpatient Services advising Claimant is schizo-affective depressed with psychotic features and generalized anxiety and that she attributed the cognitive impairment to the psychotic disorder. (Id. at 46, 51-52). Metropolitan Life presented the testimony of Cynthia S. SochaGelgot, Ph.D. who performed an independent neuropsychological evaluation of Claimant in early 2001. According to Dr. Socha-Gelgot, Claimant s evaluation had to be spread out over two separate dates because his thinking was disorganized and he went off on numerous tangents. Dr. Socha-Gelgot opined, based on Claimant s history, medical records, and testing results, that Claimant was a malingerer with a strong likelihood of an independent psychotic process that was present prior to the purported work-related incidents. She explained that the diagnosis of malingering is that of a conscious and intentional attempt to feign or exaggerate symptoms for secondary gain. (Depo. dated 9/23/02, pp. 12, 46, 47). The WCJ issued two separate Decisions. On May 22, 2006, the WCJ issued a decision wherein he denied Claimant s Reinstatement Petition filed against Metropolitan Life. He granted the Termination Petition filed by this Employer. In so doing, the WCJ rejected Claimant s testimony based on his personal observations of Claimant and the inconsistencies in his statements. The WCJ added that Claimant acknowledged that he went over his testimony with Mr. Gross who suggested ways for Claimant to handle the discrepancies in his testimony. The WCJ further rejected the testimony of Claimant s medical experts, 9 Dr. Litton, who testified concerning Claimant s orthopedic injuries, and Dr. Kuhlengel, who testified regarding Claimant s brain injury/psychological condition. The WCJ credited the testimony of Dr. Van Sant, M.D., who opined Claimant was fully recovered from his orthopedic injuries sustained in 1988 as of May 1, 1989. The WCJ again stated that he believed Claimant s claim for benefits for a closed head injury was barred by the statute of limitations. Nonetheless, he decided this claim based on the evidence presented. In a Decision dated June 15, 2006, the WCJ again denied Claimant s Claim Petition filed against International. The WCJ concluded that Claimant s testimony concerning an alleged incident on April 10, 1990 was not credible. The WCJ further noted that Dr. Litton acknowledged that Claimant, in giving his history, failed to state that he injured himself on April 10, 1990, nor did Dr. Litton receive any report that described such an injury. The WCJ further referenced that Dr. Van Sant agreed that Claimant made no reference to any injury occurring on April 10, 1990. Claimant appealed both the May 22, 2006 and the June 15, 2006 Decisions of the WCJ to the Board. On July 31, 2007, the Board issued an Opinion at A06-1312/A061313 affirming the WCJ s May 22, 2006 Decision. It rejected Claimant s argument that the WCJ failed to issue a reasoned decision, that the Decision was not supported by substantial, competent evidence, that the WCJ was unduly biased, and that he unfairly precluded the submission of any evidence pertinent to the Petitions. The Board acknowledged that the WCJ erred in his belief that Claimant s claim for a head injury was time barred but concluded that this was not reversible error because the WCJ further addressed the merits of Claimant s claim. The Board also acknowledged Claimant s attempt to supplement the record with 10 additional medical records for it to review. It refused to consider these documents, however, as they were not part of the original record. It denied Claimant s request for further remand to present additional evidence. The Board, also on July 31, 2007, issued an Opinion at A06-1439 affirming the WCJ s June 15, 2006 Decision, noting that credibility determinations are the sole province of the WCJ and that based on the WCJ s credibility determinations, he did not err in denying Claimant s Claim Petition filed against International. The Board again rejected Claimant s claim of WCJ bias and Claimant s attempt to supplement the record with additional medical reports. These appeals followed.4 Claimant argues on appeal that the WCJ erred in denying his Reinstatement Petition filed against Metropolitan Life. We disagree. A claimant seeking a reinstatement of suspended benefits has the burden of proving that the disability which gave rise to his original claim continues and that, through no fault of his own, his earning power is once again adversely affected by his disability. Pieper v. Workmen s Compensation Appeal Board (Ametek-Thermox Instruments Div.), 526 Pa. 25, 584 A.2d 301 (1990). An employer may rebut a claimant s proof of loss of earnings by demonstrating that suitable work was available or would have been available but for circumstances that merit allocation of the consequences of [a] discharge to the claimant, such as 4 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. Sysco Food Serv. of Phila. v. Workers Compensation Appeal Board (Sebastiano), 940 A.2d 1270 (Pa. Cmwlth. 2008). Review for capricious disregard of material, competent evidence is an appropriate component of appellate consideration in every case in which such a question is properly raised. Leon E. Wintermyer, Inc. v. Workers Compensation Appeal Board (Marlowe), 571 Pa. 189, 812 A.2d 478 (2002). 11 claimant s lack of good faith. Vista Int l Hotel v. Workers Compensation Appeal Board (Daniels), 560 Pa. 12, 742 A.2d 649 (1999). Bad faith is not established when an employee attempts to perform his job duties but is unable to satisfactorily perform them due to his work-related injury. Stevens v. Workers Compensation Appeal Board (Consolidation Coal, Co.), 563 Pa. 297, 760 A.2d 369 (2000); See also Cryder v. Workers Compensation Appeal Board (National City), 828 A.2d 1155 (Pa. Cmwlth. 2003). As we stated in Virgo v. Workers Compensation Appeal Board (County of Lehigh-Cedarbrook), 890 A.2d 13 (Pa. Cmwlth. 2005), if an employer only shows that he or she would if he or she could, then bad faith is not shown, and benefits should be reinstated. If, however, the employer shows that the claimant could if he or she would, and didn t, bad faith is established and a claimant is not entitled to a reinstatement of benefits. Id. at 19. Moreover, if a claimant s loss of earnings is related to a factor other than the claimant s work injury, the claimant s benefits must be suspended. Edwards v. Workers Compensation Appeal Board (Sear s Logistic Serv.), 770 A.2d 805 (Pa. Cmwlth. 2001). Ordinarily, when a claimant s benefits are suspended based on a return to work, causation is presumed when he seeks reinstatement of benefits. Latta v. Workmen s Compensation Appeal Board (Latrobe Die Casting Co.), 537 Pa. 223, 642 A.2d 1083 (1994). See also Futura Agency, Inc. v. Workers Compensation Appeal Board (Marquez), 878 A.2d 167 (Pa. Cmwlth. 2005). To hold otherwise would improperly require a claimant to re-establish that which has already been agreed to and acknowledged. Latta, 537 Pa. at 227, 642 A.2d at 1085. This matter is complicated, however, because Claimant is not simply alleging he was unable to perform his work duties with Metropolitan Life prior to 12 being fired because of his back injuries acknowledged in the NCP. On the contrary, his primary allegation is that he sustained brain injuries as a result of the 1988 motor vehicle accident that affected his ability to perform his work duties upon his return in May of 1989 and ultimately led to his dismissal. These brain injuries were never accepted by Metropolitan Life. Consequently, causation cannot be presumed and it was incumbent upon Claimant to establish the NCP was materially incorrect and needed to be amended. A review petition should be filed to amend an NCP to include additional injuries when the NCP is materially incorrect.5 DeGraw v. Workers Compensation Appeal Board (Redner s Warehouse Mkts., Inc.), 926 A.2d 997 (Pa. Cmwlth. 2007). The burden remains on the claimant as if a claim petition was filed. Jeanes Hosp. v. Workers Compensation Appeal Board (Hass), 582 Pa. 405, 872 A.2d 159 (2005). In a claim petition, the burden of proving all necessary elements to support an award rests with the claimant. Inglis House v. Workmen s Compensation Appeal Board (Reedy), 535 Pa. 135, 634 A.2d 592 (1993). The claimant must establish that his injury was sustained during the course and scope of employment and is causally related thereto. McCabe v. Workers Compensation Appeal Board (Dep't of Revenue), 806 A.2d 512 (Pa. Cmwlth. 2002). When the connection between the injury and the alleged work-related cause is not obvious, it 5 Claimant did not file a review petition in this matter. Nonetheless, strictness of pleadings is not required in workers compensation proceedings and a claimant is entitled to whatever relief the credible evidence shows. Westinghouse Elec. Corp./CBS v. Workers Compensation Appeal Board (Korach), 584 Pa. 411, 883 A.2d 579 (2005). Moreover, the Board remanded this matter on two separate occasions to permit Claimant the opportunity to establish his alleged brain injuries were causally related to his employment with Metropolitan Life. 13 is necessary to establish the cause by unequivocal medical evidence. DeGraw, 926 A.2d at 1000. Based on our review, we see no error in the WCJ s denial of Claimant s Reinstatement Petition or in his failure to amend Claimant s injury description to include the cognitive and psychological injuries. Pursuant to Inglis House and DeGraw, Claimant had the burden of proof to amend his injury description to include additional injuries. Claimant s testimony, as well as that of Dr. Kuhlengel, was rejected by the WCJ. Rather, the WCJ credited the testimony of Metropolitan Life s expert, Dr. Socha-Gelgot, who opined that Claimant was a malingerer and that any cognitive or psychological issues were part of the independent psychotic process and not work-related.6 The WCJ is the final arbiter of witness credibility and the weight to be accorded evidence and may accept or reject the testimony of any witness in whole or in part. Greenwich Collieries v. Workmen s Compensation Appeal Board (Buck), 664 A.2d 703 (Pa. Cmwlth. 1995). Claimant was unable to meet his burden to establish liability on the part of Metropolitan Life for his alleged cognitive or psychological injuries as Claimant s medical evidence was rejected in this regard.7 6 Claimant argues that the WCJ erred in again stating that his claim for cognitive/mental injuries is barred by the statute of limitations. This argument is moot, however, as the WCJ nevertheless disposed of this claim on the merits. 7 Since Claimant failed to establish these cognitive/mental issues were related to his employment with Metropolitan Life, he did not establish that he was entitled to benefits from this employer on the basis that the work injury rendered him not capable of satisfactorily performing his job. Stevens; Virgo. In so stating, we reiterate that Claimant was terminated from Metropolitan Life primarily for not appearing at his scheduled meetings and Claimant s position is that his alleged mental/cognitive injuries, which include memory loss, explain his prior behavior. 14 In light of the fact that Claimant s attempt to amend his injury description was denied, he must establish that his accepted back injuries alone again caused a loss of earning power. Pieper. Claimant, however, was released to return to work on May 1, 1989 and a supplemental agreement was executed confirming his return to work. Claimant failed to present any credible evidence indicating that his back injury worsened to the point that he was no longer able to perform his job. Moreover, the credible evidence of Mr. Brandeis was that Claimant was fired from Metropolitan Life for his failure to attend meetings and/or his insubordination and there is no evidence that these actions were attributable to his back problems. Thus, the WCJ did not err in denying Claimant s Reinstatement Petition. Pieper; Edwards. Claimant further argues that the WCJ erred in granting Metropolitan Life s Termination Petition and finding him fully recovered as of May 1, 1989. He contends that Dr. Van Sant, whom the WCJ relied upon in granting Metropolitan Life s Termination Petition did not perform his independent medical examination until August 8, 1990. In a termination proceeding, the burden of proof is on the employer to establish that the claimant s work-related injury has ceased. Udvari v. Workmen s Compensation Appeal Board (USAir, Inc.), 550 Pa. 319, 705 A.2d 1290 (1997). The employer meets this burden when its medical expert unequivocally testifies that it is his opinion, within a reasonable degree of medical certainty, that the claimant is fully recovered, can return to work without restrictions, and that there are no objective medical findings which either substantiate the claims of pain or connect them to the work injury. Id. at 327, 705 A.2d at 1293. Even if the medical expert opines that the claimant is fully recovered, his opinion will not support a 15 termination of benefits if he imposes restrictions on the claimant s work activities. See Ernst v. Workers Compensation Appeal Board (Rollins Transp. Sys.), 720 A.2d 1085 (Pa. Cmwlth. 1998)(holding that when an employer s medical expert gives the claimant the benefit of the doubt and imposes restrictions on his work activities based on his complaints of pain, his testimony is insufficient to support a termination of benefits even if he stated that there are no objective findings to explain the claimant s subjective complaints); Thompson v. Workers Compensation Appeal Board (Sacred Heart Med. Ctr.), 720 A.2d 1074 (Pa. Cmwlth. 1998)(holding that the testimony of the employer s medical expert that the employee had fully recovered, coupled with a release to light duty with gradual release to full duty because the employee had been out of work for a lengthy period of time and had continuing complaints of pain did not satisfy the Udvari standard). Initially, we point out that an issue must be preserved at each stage of the proceedings or it is deemed waived. Nabisco Brands, Inc. v. Workers Compensation Appeal Board (Tropello), 763 A.2d 555 (Pa. Cmwlth. 2000). In his appeal to this Court, Claimant raises the issue of the WCJ s ability to find him fully recovered from his work-related back injury as of a date prior to his independent medical examination. In footnote 8 of its July 31, 2007 Opinion at A06-1312/A06-1313, the Board stated: Dr. Van Sant opined as to recovery as of May 1, 1989 but did not examine Claimant until August 9, 1990. We note the discrepancy, but since Claimant has not made a specific objection on appeal, we will not consider the issue. (Opinion dated 7/31/07, p. 17, fn. 8). 16 When a party fails to raise an issue with the requisite specificity in the appeal documents before the Board, that party fails to preserve the issue. McGaffin v. Workers Compensation Appeal Board (Manatron, Inc.), 903 A.2d 94, 101 (Pa. Cmwlth. 2006). See also Jonathan Sheppard Stables v. Workers Compensation Appeal Board (Wyatt), 739 A.2d 1084 (Pa.Cmwlth. 1999). The mere filing of an appeal does not preserve issues which are not specifically raised. Fiorentino v. Workmen s Compensation Appeal Board (Concrete Indus.), 571 A.2d 554 (Pa. Cmwlth. 1990). The strict doctrine of waiver is applicable in workers compensation proceedings. Tropello. The Board, in its Opinion at A061312/A06-1313, noted, evidently on its own accord, that Claimant did not raise on appeal the legal issue of the ability of Dr. Van Sant to offer an opinion of full recovery as of a date prior to his independent medical examination. In its deliberations the Board did not, therefore, sua sponte consider the impact of this fact as Claimant failed to make a specific objection on that basis. Therefore, at first blush, it appears that this argument, now being raised for the first time, is waived. Tropello. Nonetheless, we have reviewed Claimant s Notice of Appeal filed by counsel and the memorandum attached thereto as well as the appeal documents filed by Claimant on his own accord following the WCJ s May 22, 2006 Decision and recognize that Claimant did argue before the Board that the WCJ s Decision was not supported by substantial, competent evidence. In so doing, a tangential issue is raised, regardless, as to whether Dr. Spitz 1989 report, which is undoubtedly hearsay, can serve as a basis to terminate benefits. Hearsay evidence, properly objected to, is not competent evidence to support a finding of the Board. Walker v. Unemployment Compensation Board of 17 Review, 367 A.2d 366 (Pa. Cmwlth. 1976). Nonetheless, hearsay evidence, admitted without objection, will be given its natural probative effect and may support a finding of the Board if it is corroborated by any competent evidence of record. Id. at 370. But, a finding based solely on hearsay will not stand. Id. This legal precedent is deemed the Walker Rule and is applicable in workers compensation cases. Rox Coal Co. v. Workers Compensation Appeal Board (Snizaski), 570 Pa. 60, 807 A.2d 906 (2002). See also Benson v. Workmen s Compensation Appeal Board (Haverford State Hosp.), 668 A.2d 244 (Pa. Cmwlth. 1995). Dr. Spitz report was not objected to and therefore can support a finding of fact if it is corroborated by other competent evidence. Walker. The problem, however, with Dr. Spitz report, is that Dr. Van Sant s opinion is not entirely corroborative of the same. As explained above, Dr. Spitz report cleared Claimant to return to work on May 1, 1989 but with the caveat that he be able to switch positions and/or stretch every couple of hours. Dr. Spitz report, therefore, in and of itself, would be insufficient to support a termination of benefits. Thompson; Ernst. Assuming arguendo that Dr. Spitz did not impose any restrictions, Dr. Van Sant s testimony may have served to corroborate an opinion of full recovery as of May 1, 1989. Walker. As it stands, however, Dr. Van Sant cannot rely on Dr. Spitz report as a basis for full recovery. As the hearsay report of Dr. Spitz does not support a termination of benefits and Dr. Van Sant offered an opinion of full recovery as of May 1, 1989 in reliance of that report, there is no competent evidence of record to support a finding of full recovery from Claimant s back issues as of May 1, 1989. 18 The Board did, therefore, err in affirming that part of the WCJ s Order finding that Employer was entitled to a termination of benefits as of as of May 1, 1989. Therefore, under the supplemental agreement of May 6, 1989, Claimant s benefits remained suspended until August 8, 1990 when Dr. Van Sant rendered his unequivocal opinion that, based on his own examination, Claimant was fully recovered as of that date. Dr. Van Sant s testimony was credited by the WCJ and, other than the uncorroborated date of full recovery on May 1, 1989, is supported by substantial competent evidence supporting a finding of full recovery on August 8, 1990.8 Claimant next argues that the WCJ erred in denying the Claim Petition filed against International. We disagree. As indicated above, in a claim proceeding, the claimant must establish he sustained an injury during the course and scope of employment. McCabe. Here, the WCJ concluded that given the inconsistencies in Claimant s testimony, he could not find as fact that Claimant did fall on the concrete on April 10, 1990 while employed by International.9 The WCJ found further reason to question the veracity of Claimant s allegations given that Claimant did not inform Dr. Litton of this purported incident upon providing a history of his back condition. He further emphasized Dr. Van Sant s statement that Claimant did not mention anything 8 In light of our finding that Employer that there was no substantial, competent evidence of record to support a termination of benefits until August 8, 1990, we need not address Claimant s argument that WCJ could not terminate benefits as of a date prior to the execution of May 6, 1989 Supplemental Agreement. 9 We reiterate that at one hearing, Claimant testified that after he fell he crawled back to his room which was ten yards away. At another hearing, however, Claimant testified that he ran back to his room that was fifty yards away. 19 about sustaining further back trauma on April 10, 1990 while the independent medical examination took place. Because the WCJ rejected Claimant s allegation that the April 10, 1990 incident even occurred, he did not err in denying Claimant s Claim Petition against International. McCabe; Buck.10 Claimant also contends that the WCJ was predisposed to reject his testimony as suggested by his prior rulings. He adds that this unduly prejudiced the WCJ s review of the medical testimony as it related to his head injuries that purportedly explained his behavior earlier in the litigation. We reject Claimant s contentions. Section 131.54(a) of the WCJ Rules mandates that a WCJ shall conduct fair and impartial hearings. 34 Pa. Code 131.54(a). This section is implicated when there have been allegations of a conflict of interest or bias independent of such conflict. In bias cases, if the WCJ believes that he can hear and dispose of the case in an impartial manner, his decision will not be overturned 10 Claimant contends that International failed to submit any evidence to rebut his testimony regarding the 1990 work injury. Therefore, he suggests that the WCJ capriciously disregarded his testimony. A fact finder does not capriciously disregard competent evidence when he arrives at a decision where the losing party has presented overwhelming evidence that could require him to arrive at a different outcome when he addresses that evidence by resolving critical conflicts or by making essential credibility determinations. Frog, Switch & Mfg. v. Pennsylvania Human Relations Comm n, 885 A.2d 655 (Pa. Cmwlth. 2005). Furthermore, Section 422 of the Pennsylvania Workers Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 834, expressly states that a WCJ may reject uncontested testimony so long as he provides adequate reasoning. It should remain a rare instance that an appellate body would disturb an adjudication based upon the capricious disregard of material, competent evidence. Williams v. Workers Compensation Appeal Board (USX Corp.), 862 A.2d 137 (Pa. Cmwlth. 2004). Claimant conceded that the incident he alleged to have occurred while working for International was not witnessed. Moreover, the WCJ did not reject his testimony without comment. The WCJ noted the inconsistencies in his testimony as well as the information, or lack thereof, he provided the medical experts. Therefore, we cannot say this is one of those rare instances where we would find the WCJ capriciously disregarded evidence. Williams. 20 absent an abuse of discretion. Dow v. Workers Compensation Appeal Board (Household Fin. Co.), 768 A.2d 1221 (Pa. Cmwlth. 2001). Any such evidence of WCJ bias must appear in the record. Id. at 1225. See also Tindal v. Workers Compensation Appeal Board (City of Phila.), 799 A.2d 219 (Pa. Cmwlth. 2002). Moreover, a mere adverse ruling, without more, does not demonstrate the bias required to warrant relief. Dow, 768 A.2d at 1225. At the first hearing following the Board s second remand, Claimant s counsel made a request that the WCJ recuse himself and assign the matter to a different WCJ. Claimant s counsel reasoned that the WCJ made findings in his two prior decisions that Claimant provided false testimony under oath and, therefore, rejected his testimony. Although Claimant s counsel conceded that based on the evidence and circumstances presented to the WCJ at that time, such a finding may have been warranted, he was concerned that the WCJ may have formed preconceived notions as to the Claimant s credibility. Following arguments from all counsel present, the WCJ rejected Claimant s counsel s request that he recuse himself stating I feel that I can be fair and reasonable in this case. (N.T. 10/4/00, p. 5, 7, 9, 14). Furthermore, upon learning of Mr. Gross involvement in going over prior testimony with Claimant, counsel for Metropolitan Life objected to Claimant s new testimony to the extent it has been coached or prepped. (N.T. 5/23/01, p. 54). In response, the WCJ stated: Judge Clark: Well, I think this is a matter for me to determine the credibility of this witness. The Board, as you know, remanded this case and said that he was to be given another hearing because the Board felt that because he had head injuries that his actions which were irrational previously might have been affected by those head 21 injuries. And so, they specifically said that he s to be given an opportunity to testify. Mr. Pavuk: Judge excuse me, I m sorry. Judge Clark: If you want to brief this at the end of the hearing, you certainly can do that. But, I guess, it s a matter for me to determine the credibility of this witness based on the fact that he did have help in going over his testimony. (Id. at 55). These excerpts reveal that the WCJ was specifically asked to consider whether he could continue on as the adjudicator in these proceedings without having any preconceived notions regarding the credibility of the witnesses, i.e., Claimant, in light of his previous decisions wherein he made rulings adverse to Claimant. The WCJ listened to counsels arguments on the issue and upon reflection opined that he could continue to be fair and reasonable in this case. This is his prerogative as per Dow. Furthermore, the WCJ made it clear that he understood that pursuant to the Board s December 14, 1999 remand Order, there was a possibility that Claimant s statements and conduct in the prior proceedings, and for that matter his actions leading to his dismissal from Metropolitan Life, may have been affected by a head injury. He further indicated that he understood he would have to make new credibility determinations in issuing a decision following the Board s remand. There is no evidence the WCJ abused his discretion in declining to recuse himself. Any evidence of bias must appear on the record. Dow; Tindal. We are satisfied that the WCJ conducted the proceedings in a fair 22 and impartial manner.11 Simply because Claimant did not prevail before the WCJ in this litigation is insufficient to establish any bias. Dow. We do not agree that the WCJ s rejection of Claimant s testimony affected the WCJ s evaluation of Dr. Kuhlengel s testimony. The WCJ rejected Dr. Kuhlengel s testimony because she appeared to alter her opinion on the cause of Claimant s cognitive and psychological injuries to fit Claimant s needs at any given time. The WCJ considered that while Dr. Kuhlengel testified in the current proceedings that these conditions were largely attributable to the 1988 automobile accident with Metropolitan Life, she had prior inconsistent statements concerning Claimant s mental/cognitive injuries. On one occasion, she suggested that Claimant did not have closed-head trauma. On another occasion, Dr. Kuhlengel attributed Claimant s emotional problems to his fall with International. On yet another occasion, Dr. Kuhlengel linked Claimant s cognitive impairment to a psychotic disorder. Claimant further argues that he was precluded from submitting evidence in support of his claim on remand. Although Claimant makes this argument without any further specificity, it appears that Claimant is referring to the WCJ s apparent exclusion of any additional evidence regarding his back problems. 11 Claimant further asserts that the WCJ s lack of objectivity was evidenced in the fact that he purportedly adopted the proposed findings of fact submitted by one of the employers. A WCJ may adopt a party s proposed findings, however, so long as substantial evidence in the record supports those findings. Schneider Nat l Carriers v. Workers Compensation Appeal Board (Beardon), 738 A.2d 53 (Pa. Cmwlth. 1999). But for the WCJ s finding that the Claimant s benefits should be terminated as of May 1, 1989 as opposed to August 8, 1990, the WCJ s Decision(s) are supported by substantial, competent evidence. We reject Claimant s contention. 23 At the hearing held October 4, 2000, Claimant s counsel advised the WCJ that he wished to present further testimony from Dr. Litton. (N.T. dated 10/4/00, p. 14). The WCJ suggested that although the Board directed that the most recent remand was to be a de novo proceeding, his interpretation was that the purpose of the remand was for submission of evidence regarding any head injury and possible cognitive issues that may have resulted subsequent to such injury. (Id. at 15). We agree with the WCJ s determination. We first point out that a WCJ should restrict remand proceedings to the purpose indicated by the remand order. Delaware County v. Workers Compensation Appeal Board (Baxter-Coles), 808 A.2d 965 (Pa. Cmwlth. 2002). See also Clark v. Workers Compensation Appeal Board (Wonder Bread Co.), 703 A.2d 740 (Pa. Cmwlth. 1997). We further note that the Board, in its 1999 Opinion, vacated the WCJ s 1997 Decision and remanded again for the WCJ to reconsider all of the factual issues in this case, including Claimant s rights to disability benefits against either Metropolitan Life or International. While it is true that the Board directed that on remand, the WCJ should consider the litigation as if it was a de novo proceeding, we do not believe the WCJ erred in precluding the submission of any further medical evidence concerning Claimant s back injuries. A fair reading of the Board s 1999 Opinion in combination with its November 30, 1994 Opinion and the WCJ s prior Decisions reveals that the Board was concerned with Claimant s alleged mental/cognitive injuries that the WCJ had yet to consider on the merits. It recognized that if, in fact, they existed they could potentially explain Claimant s inconsistent statements at hearing that caused his testimony to be rejected in the first place as well as his conduct before the WCJ. If 24 Claimant s actions were affected by his cognitive injuries, the Board s 1999 remand Order allowed the WCJ to reconsider his credibility determinations and revise his determinations as to whether Claimant was entitled to any benefits from either Metropolitan Life or International. We agree with the Board which affirmed the WCJ s ruling that the Board s 1999 remand Order did not intend for additional medical testimony concerning Claimant s back condition to be submitted. Any such evidence would merely be cumulative of the evidence already presented. Remands are not permitted for the purpose of submission of cumulative evidence. Paxos v. Workers Compensation Appeal Board (Frankford-Quaker Grocery), 631 A.2d 826 (Pa. Cmwlth. 1993)(holding a rehearing is not permitted in order to present additional testimony that is merely cumulative, nor to bolster weak proofs).12 Claimant next contends the WCJ lied to him to make him represent himself. Claimant s contention is clearly refuted by the record itself. Claimant was represented by Lacy Hayes, Jr., Esq. in the Reinstatement Petition filed against Metropolitan Life who resigned prior to a hearing held November 15, 1990.13 Before proceeding at hearing, the following colloquy took place: Referee Clark:14 And do you know that you do have the right to have an attorney at these hearings. Do you want 12 The case law regarding the Board s ability to grant a rehearing is equally applicable to remand cases. Puhl v. Workers Compensation Appeal Board (Sharon Steel Corp.), 724 A.2d 997 (Pa. Cmwlth. 1999). 13 It was further determined at the November 15, 1990 hearing that Claimant was no longer being represented by Gary J. Imblum, Esq. in the Claim Petition against International. 14 WCJ s were previously known as referees. 25 me to continue this hearing so that you can get an attorney or do you want to proceed without one? Mr. Boatin: No. Right now I want to tell everything about the case and then because of the short duration of the time that he gave me from the day I received the Notice and the Hearing Date, I was in the hospital and I had to come right out to see what Referee Clark: Well, that s what I'm telling you. You don t have to have a hearing today. I can continue this hearing, if you need to have an attorney represent you. Do you want me to continue this hearing or do you want to continue? Mr. Boatin: I would like us to continue because I think there are two lawyers representing two companies and I don t want to keep postponing and postponing. Referee Clark: Okay, we ll proceed. (N.T. 11/15/90, pp. 3-4). This excerpt clearly evidences the fact that WCJ Clark afforded Claimant the opportunity to seek new counsel prior to moving forward with the litigation after his prior counsel withdrew their representation. Claimant declined this opportunity and WCJ Clark clearly did not lie to Claimant to make him represent himself. Claimant also argues that he was never allowed to present testimony before the Board. The Board properly held, however, that items that are not part of the record may not be considered by an appellate body on review. Kimberly Clark 26 Corp. v. Workers Compensation Appeal Board (Bullard), 790 A.2d 1072 (Pa. Cmwlth. 2001).15 We do, therefore, affirm, as modified, the Board Order at A061312/A06-1313 and affirm Board Order A06-1439. JIM FLAHERTY, Senior Judge 15 Claimant argues the Board misrepresented that he provided false information to an attorney. We have reviewed the four Opinions issued by the Board in this matter. No statements regarding any information Claimant may or may not have made to his attorney are contained therein. Claimant has not pointed to anything that amounts to reversible error. 27 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Colin C. Boatin, : Petitioner : : v. : : Workers Compensation Appeal Board : (George S. May International Co.), : Respondent : : Petitioner : : v. : : : Workers Compensation Appeal Board : (Metropolitan Life Insurance Co.), : Respondent : No. 1543 C.D. 2007 Colin C. Boatin, No. 1544 C.D. 2007 ORDER AND NOW, this 4th day of June, 2008, we modify the Workers Compensation Appeal Board s Order at A06-1312/A06-1313 to reflect that Claimant s benefits for his back injury shall be terminated as of August 8, 1990 as opposed to May 1, 1989. We affirm that Order in all other respects. The Board s Order at A06-1439 is affirmed. JIM FLAHERTY, Senior Judge

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