K. Thompson v. WCAB (Rhone Poulenc, et al.) (Majority Opinion)
Annotate this Case
Download PDF
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Kathryn Thompson, Petitioner v. Workers' Compensation Appeal Board (Rhone Poulenc & A.I.G. Claim Services, Inc.), Respondents BEFORE: : : : : : : : : : No. 315 C.D. 2007 Submitted: December 7, 2007 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE FRIEDMAN FILED: March 10, 2008 Kathryn Thompson (Claimant) petitions for review of the January 23, 2007, order of the Workers Compensation Appeal Board (WCAB) affirming the decision of a workers compensation judge (WCJ) to deny Claimant s modification petition (Petition). Through her Petition, Claimant sought to modify her disability status from partial to total as of October 12, 1989, one day after her benefits were modified from total to partial pursuant to the WCJ s July 3, 1996, decision granting the modification petition filed by Rhone Poulenc & A.I.G. Claim Services, Inc. (Employer). We vacate and remand. Claimant sustained a work-related back injury on January 4, 1988, and received total disability benefits pursuant to a notice of compensation payable. (Findings of Fact, No. 1.) On June 11, 1990, Employer filed a modification petition alleging that there was work available that Claimant was capable of performing. By decision circulated July 3, 1996, the WCJ ultimately granted Employer s modification petition and reduced Claimant s benefits to partial disability effective October 11, 1989, based upon job availability (1996 Decision). In granting relief to Employer, the WCJ relied in part on the testimony of Employer s medical expert, John R. Duda, M.D., who testified that Claimant was able to return to light duty work on an everyday basis as of June 26, 1989, and that she was able to perform the jobs made available to her in October of 1989. (Findings of Fact, No. 2.) Claimant appealed the 1996 Decision, and on June 12, 2002, following a remand for certification of the record, the WCAB affirmed. By decision and order dated October 22, 2003, Commonwealth Court also affirmed,1 and our supreme court denied Claimant s petition for allowance to appeal on May 18, 2004, making the 1996 Decision final. 1 After Claimant appealed to Commonwealth Court, we issued an October 28, 2002, order remanding the case to the WCJ for proceedings necessary to determine what evidence was properly part of the record. Following hearings, the WCJ issued an order dated March 12, 2003, delineating the evidentiary record considered in the 1996 Decision and reaffirming the findings made in that decision. The WCJ then returned the record to the WCAB, which certified the record to this court. Upon receipt of the recertified record, this court issued a May 15, 2003, order stating that the record as certified by the WCAB was true and correct. Claimant filed an application for reconsideration of that order, and we considered Claimant s application along with the merits of Claimant s petition for review of the 1996 Decision. By order dated October 22, 2003, this court denied Claimant s application for reconsideration and affirmed the WCAB s June 12, 2002, order affirming the WCJ s modification of Claimant s benefits to partial. (Ex. J1.) 2 On January 16, 1998, while the 1996 Decision was on appeal, Claimant filed her Petition, alleging that she was totally disabled due to her workrelated injury as of January 1, 1998. Employer filed an answer denying the allegation, and hearings were held before the WCJ.2 At the March 23, 1999, hearing on Claimant s Petition, Claimant s counsel amended the Petition to allege that Claimant was entitled to a reinstatement of total disability benefits as of October 12, 1989. (3/23/99 Hearing, N.T. at 12-13.) In support of her Petition, Claimant presented the January 14, 1999, deposition of Seymour Leiner, M.D, an orthopedist who first examined Claimant on October 22, 1990. Dr. Leiner testified that, at this first examination, he diagnosed Claimant with disc herniations at L4, L5 and S13 and opined that Claimant was totally disabled. Dr. Leiner stated that he continued to treat Claimant on an intermittent basis from 1990 to 1998, but her condition began to worsen. Dr. Leiner explained that Claimant had developed more pain and inability to function and was experiencing difficulty in walking even with an ankle brace. He opined that Claimant had developed permanent right foot-drop and now had pain in her left side as well as right. Dr. Leiner stated that Claimant continued to have radicular pain with spasm and that she may become wheelchair-ridden in the 2 The first transcribed hearing on Claimant s Petition took place on June 25, 1998, but proceedings were continued at different times during the litigation due to the pending appeal of the 1996 Decision. The final hearing on the Petition took place on February 26, 2004. 3 Dr. Leiner stated that he reviewed EMG results indicating radiculopathy at L4, L5 and S1, which was moderate to severe in the right extremity and mild to moderate in the left extremity. (Findings of Fact, No. 3b.) 3 future. He opined that, as of his last examination, Claimant continued to be disabled from returning to any type of employment.4 (Findings of Fact, No. 3.) Claimant also presented the deposition testimony of John Sbarbaro, Jr., M.D., and Stephen Jaffe, M.D.5 Dr. Sbarbaro examined Claimant on July 13, 1993, and, based on his examination, together with his review of Claimant s medical history and reports, Dr. Sbarbaro testified that Claimant is not capable of performing any work because of her progressive instability and inability to function without a cane, sit for any length of time or use public transportation. (1996 Decision, Findings of Fact, No. 4d-e.) Dr. Jaffe did not examine Claimant, but he did perform a CAT scan of Claimant on July 30, 1991. Based on the clinical history supplied to him, Dr. Jaffe testified that there was a strong causal relationship between the CAT scan findings and Claimant s work history. (1996 Decision, Findings of Fact, No. 5.) 4 During his testimony, Dr. Leiner acknowledged that he had not reviewed the complete records of Claimant s original treating physician, Dr. Gratch, but he was aware that Dr. Gratch released Claimant to light duty work in 1988. Dr. Leiner agreed that he never reviewed the actual films of the diagnostic tests, and he acknowledged forwarding medical reports in which he repeatedly stated that Claimant s condition was unchanged. (Findings of Fact, No. 3d.) 5 These depositions originally were presented to the WCJ during litigation of the 1996 Decision, which was included as an exhibit during proceedings on Claimant s Petition. The WCJ summarized the testimony of Drs. Sbarbaro and Jaffe at Findings of Fact, Nos. 4 and 5 of the 1996 Decision, and he incorporated those summaries by reference into his decision on Claimant s Petition. (Findings of Fact, No. 4.) In the 1996 Decision, the WCJ rejected the opinions of these doctors because they were not based on Claimant s condition and work capacity in 1989, which was the relevant date for Employer s modification petition. (1996 Decision, Findings of Fact, No. 6.) 4 Employer presented the September 9, 1999, deposition testimony of Dr. Duda, who had examined Claimant on September 19, 1988, June 26, 1989, and April 20, 1999. Dr. Duda testified that his latest examination of Claimant revealed evidence of peroneal palsy, quadriceps atrophy of the right lower extremity and proximal lesion at the L4-5 level. Dr. Duda acknowledged that Claimant had sustained work-related disc herniations in 1988 and that her condition had worsened between his 1989 and 1999 examinations. However, Dr. Duda opined that this deterioration was completely unrelated to the 1988 work injury, based on the fact that a 1990 EMG showed no peroneal palsy and the fact that his June 26, 1989, examination showed that Claimant essentially had recovered from her workrelated disc herniations. (Findings of Fact, No. 6.) The final hearing on Claimant s Petition was held on February 26, 2004, and Claimant did not appear to testify despite the WCJ s prior order directing her to do so.6 Rejecting counsel s explanation for Claimant s absence, the WCJ found that Claimant refused to make herself available to testify; thus, he 6 At a December 18, 2003, hearing, where Claimant was not present, her counsel objected to the transfer of the hearing location from Philadelphia (sixteen miles from Claimant s home) to Dresher, Pennsylvania (nine miles from Claimant s home). At that hearing, Claimant s counsel also requested that Claimant s testimony be taken by deposition, and Employer s counsel objected. By interlocutory order, dated February 2, 2004, the WCJ overruled Claimant s objection to the hearing location and directed Claimant to testify live at the next scheduled hearing in Dresher. (Findings of Fact, No. 10.) When Claimant failed to appear at the last hearing on her Petition on February 26, 2004, Claimant s counsel argued that, according to a note he received from Dr. Leiner, his client was not physically able to be present because she was recuperating from a recent fall and hospitalization. After the WCJ indicated that Claimant would be allowed to testify by telephone, her counsel represented that she could not be reached. (Findings of Fact, No. 11.) Counsel stated that he understood from Claimant s family that she was taking strong medication and was unable to answer the telephone. 5 drew the adverse inference that Claimant s testimony would not have supported her allegation that her work-related condition worsened as of October 12, 1989. At the February 26, 2004, hearing, Claimant s counsel also attempted to submit into evidence two large boxes of documents, represented as containing medical records from Dr. Duda and testimony that was part of the certified record in the 1996 Decision; however, sustaining Employer s objection, the WCJ refused to admit these documents and closed the record.7 (Findings of Fact, Nos. 11-12.) The WCJ rejected the testimony of Drs. Leiner, Sbarbaro and Jaffe as neither credible nor persuasive. In doing so, the WCJ explained, inter alia, that their medical opinions were based on the hearsay statements of Claimant regarding her subjective symptoms, which have not been corroborated by Claimant s testimony. (Findings of Fact, Nos. 7-8.) In light of these credibility determinations, the WCJ noted that additional findings on the credibility of Employer s medical witness were unnecessary. He did, however, reject Dr. Duda s testimony to the extent it suggested that Claimant had fully recovered from her January 4, 1988, work injury as of June 26, 1989. The WCJ noted that termination of benefits was not at issue and that such a finding would be inconsistent with the findings in the 1996 Decision. (Findings of Fact, No. 9.) Based on these findings, the WCJ concluded that Claimant failed to establish that her work-related condition changed or that her disability worsened on 7 The WCJ formally closed the evidentiary record by interlocutory order circulated March 17, 2004. (Findings of Fact, Nos. 12-13.) The WCJ also denied Claimant s motion for recusal, finding that he could decide the Petition without bias. (Findings of Fact, No. 14.) 6 or after October 12, 1989. (Conclusions of Law, No. 1.) Accordingly, the WCJ denied Claimant s Petition. Claimant appealed to the WCAB, which affirmed,8 and Claimant now petitions this court for review of that decision.9 After completing the laborious process of interpreting Claimant s brief, 10 we can fairly glean three issues raised for our appellate review. 8 Employer filed a protective cross-appeal with the WCAB, arguing that the WCJ failed to make adequate findings, specifically with regard to Dr. Duda s testimony that the worsening of Claimant s condition was not work-related, and that the WCJ failed to sustain Employer s evidentiary objections. However, citing Wheeler v. Workers Compensation Appeal Board (Reading Hospital and Medical Center), 829 A.2d 730 (Pa. Cmwlth. 2003), the WCAB quashed Employer s protective cross-appeal, concluding that Employer had no standing to appeal because it was not aggrieved by the WCJ s denial of Claimant s modification petition. Moreover, the WCAB determined that Employer s cross-appeal was rendered moot by the WCAB s disposition of the case. 9 Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with law or whether the necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704. 10 This concluding sentence from Claimant s brief is, in both substance and style, representative of those included throughout the brief s sixty-four pages. For the foregoing reasons plaintiff respectfully prays this Honorable Court take Judicial Notice of the foregoing adjudicative facts including the testimony from claimant and her daughter summarized in Factual Findings 9 and 10 in the 7/3/96 decision, as well as the Holy Redeemer Hospital emergency room record, sustain claimant s appeal, reverse and/or remand the administrative decisions for a necessary sufficient specific findings of fact including based on a full, true and accurate certified record and including Judicial Notice of adjudicative facts, grant claimant s modification petition for total disability benefits as of 10/22/90, strike and vacate W.C.J. s 1/31/05 decision and order; and/or appoint another W.C.J. to hear and report to the Board and/or remand the matter to another W.C.J. to award benefits including unreasonable contest, counsel fees and penalties and interest and such other orders as are warranted in the interests of justice! (Footnote continued on next page ¦) 7 I. First, Claimant argues that the WCJ denied Claimant a full and fair hearing based on a complete and accurate record. Specifically, Claimant contends that the WCJ prematurely closed the record, thereby excluding relevant documents, and he further denied Claimant an opportunity to present her case on her Petition by erroneously concluding that she refused to appear at the final hearing to testify. We disagree. At the February 26, 2004, final hearing on the Petition, Claimant s counsel arrived with two boxes of documents, explaining that they were all of the exhibits to be attached to Dr. Duda s December 7, 1999, deposition, previously marked as Ex. C-1.11 He stated that, in addition to providing Dr. Duda s complete (continued ¦) (Claimant s brief at 64.) 11 The record reflects that Claimant s counsel objected to the taking of Dr. Duda s December 7, 1999, deposition because counsel had not been provided the true and complete copies of all the records Dr. Duda referred to in his recent report. During cross-examination, Claimant s counsel asked Dr. Duda for his complete file, and he asked the court reporter to mark the entire file as Ex. C-1. At the conclusion of testimony on that day, it was agreed that the court reporter would retain possession of selected exhibits. (Duda dep., 9/7/99, N.T. at 6, 47-49, 25053.) Claimant s counsel also retained possession of selected exhibits. (Duda dep., 9/7/99; Exs. C-7, C-9.) At the continuation of Dr. Duda s testimony, taken at the February 14, 2001, hearing, Claimant s counsel maintained that the court reporter failed to provide a complete copy of Dr. Duda s file, complaining that he was not given copies of previously marked deposition Exs. C-1 and C-10. Counsel further asserted that the records brought by Dr. Duda to the February 14, 2001, hearing were not the equivalent of those previously marked C-1 because the marking tab was missing. At the end of the hearing, the WCJ indicated that he would take possession of Dr. Duda s original file and make copies for the parties. (2/14/01 Hearing, N.T. at 5-7, 16-20, 16566.) 8 file, he also included Claimant s prior testimony from 1995 (offered in the 1996 Decision) and the certified record from the 1996 Decision, arguing that it was necessary for the WCJ to consider these voluminous records. The WCJ sustained Employer s objection to the admission of these documents, and he refused to mark the documents or receive them into the record. (2/26/04 Hearing, N.T. at 14-16, 21-23.) Upon review, we see no error in the WCJ s refusal to mark or admit the voluminous documents that Claimant presented at the hearing on February 26, 2004. The admission of evidence in workers compensation proceedings lies within the discretion of the WCJ. Atkins v. Workers Compensation Appeal Board (Stapley in Germantown), 735 A.2d 196 (Pa. Cmwlth. 1999). Contrary to Claimant s contention, the WCJ was not obligated to consider the contents of the evidentiary record from the 1996 Decision. Rather, the WCJ was only obliged to admit, within his discretion, evidence that was directly relevant to the Petition before him, and there is absolutely no requirement that testimony or medical records from the 1996 Decision be admitted or considered. Further, we see no error in the WCJ s refusal to consider Dr. Duda s entire file, or purported Ex. C-1, as evidence. Other than generally asserting that Dr. Duda based his opinion on his entire file, Claimant presents no persuasive argument or legal authority supporting his assertion that a WCJ must consider the entire medical file. Accordingly, we find no error in the WCJ s exclusion of Ex. C-1. Claimant argues that she had a valid excuse for her failure to appear at the February 26, 2004, hearing and, therefore, the WCJ erred by closing the record 9 and denying her an opportunity to testify. However, as observed by the WCAB, the WCJ s decision indicates that eleven hearings were held in this matter over the course of five years. Moreover, in closing the record on February 26, 2004, without hearing Claimant s testimony, the WCJ reasoned that he tentatively closed the record on February 14, 2001, but continued it twice thereafter to allow Claimant to testify. On February 2, 2004, the WCJ issued an order directing Claimant to appear and testify at the next scheduled hearing, yet the WCJ was unaware that Claimant would not be attending until the hearing had begun. Finally, the WCJ attempted to accommodate Claimant s alleged inability to attend the hearing by offering to take her testimony by phone. Under these facts, we are satisfied that Claimant had a full and fair opportunity to litigate her Petition and that the WCJ did not err in closing the record. II. Second, Claimant maintains that the WCJ erroneously denied Claimant s motion to recuse. Claimant contends that comments made by the WCJ during the final hearing,12 his refusal to allow Claimant s counsel to even re-mark 12 The final hearing on February 26, 2004, was held so that Claimant could appear and testify pursuant to the WCJ s February 2, 2004, order directing her to do so. When Claimant did not appear, and after attempts to reach her by telephone failed, Claimant s counsel again suggested that he depose Claimant, a request that already had been denied in the February 2, 2004, order. In addition, Claimant s counsel sought to have the WCJ mark as an exhibit a February 23, 2004, letter from Dr. Leiner regarding Claimant s inability to appear at the hearing. (2/26/04 Hearing, N.T. at 6-7.) Employer s counsel objected on hearsay grounds and, after hearing a protest by Claimant s counsel, the WCJ sustained the objection. (N.T., 2/26/04 at 7-9.) The following discussion then took place between the WCJ and Claimant s counsel. Counsel: Well, we want it marked, respectfully, Judge. And that s --- obviously, it s subject to Your Honor s rulings, as everything else is, as well as whatever the appellate tribunals say. We re asking it to be marked as the next ---. (Footnote continued on next page ¦) 10 (continued ¦) WCJ: Well, we re already up on appeal. problem with your cases. Counsel: I mean, this is the This isn t on appeal, Judge. WCJ: It s not yet, but it will be. Counsel: Well, it may be Judge, but --- one of the problems with the case is the Court has held the matter ---. WCJ: This is a waste of my time for you to be in here essentially setting up your appeal so you can have this case remanded and we can do it all over again. Counsel: I don t ---. WCJ: This is what you do on every case. This case is from 1998. Did you see any other claimants here with a case from 1998? Counsel: Judge, this isn t ---. WCJ: Every other case gets out of here in a year. Counsel: Judge, this is the only case that your honor has handled. So I would object to Your Honor s misstatements. It shows complete bias and I think Your Honor should recuse yourself. I haven t set anything up, to characterize Your Honor s statement. I ve got nothing to do with it, know nothing about it. This comes to me from the doctor s office at the request, apparently ---. WCJ: Well, [counsel], it s my experience that your cases do not close until someone makes the determination --- the Judge just says it s closed. So this case is closed. I made an allowance. Although this case was from 1998, I continued it twice after the record was tentatively closed on February 14, 2001. I ve continued it twice to allow the Claimant to testify. An Interlocutory Order dated [February 2], 2004, ordered the Claimant to testify at this hearing, sustained the other objections. The only thing that was going to happen today is that the Claimant was going to testify. Counsel: Well, that s not correct Your Honor. (Footnote continued on next page ¦) 11 the records as an exhibit, and his denial of Claimant s counsel s request to continue the hearing demonstrate his bias against counsel and the need for recusal. Again, we disagree. It is well settled that the party requesting a recusal bears the burden of producing evidence that establishes bias, prejudice or unfairness which raises a substantial doubt as to the jurist s ability to preside impartially. Commonwealth v. White, 589 Pa. 642, 910 A.2d 648 (2006). In considering a recusal request, the jurist must first make a conscientious determination of his ability to assess the case in an impartial manner and whether his continued involvement in the case creates an appearance of impropriety and/or would tend to undermine the public confidence in the judiciary. Id. Where a jurist rules that he can hear and dispose of a case fairly and without prejudice, that decision will not be overturned on appeal absent an abuse of discretion.13 Id. We conclude that there was no abuse of discretion here. (continued ¦) WCJ: I will not waste any more of my time for you to make all these arguments which are essentially trying to set up another Remand. And this record is for the ---. (2/26/04 Hearing, N.T. at 9-12.) 13 An abuse of discretion is not merely an error of judgment, but occurs where the lower tribunal s judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is the result of partiality, prejudice, bias or ill will. Payne v. Workers Compensation Appeal Board (Elwyn, Inc.), 928 A.2d 377 (Pa. Cmwlth. 2007). 12 The comments made by the WCJ constitute an expression of frustration, which, upon review of the record, we conclude is a reasonable and, in fact, restrained response to the continual objections and interruptions made by Claimant s counsel during the course of the proceedings.14 However, we cannot conclude that they constitute evidence establishing his inability to fairly assess the case presented by Claimant s Petition. Moreover, based on our prior discussion of the propriety of the WCJ s refusal to accept additional documents, we reject Claimant s assertion that the WCJ s bias was demonstrated by his refusal to admit the disputed exhibits into the record. Similarly, based on the facts set forth above, we discern no basis for a claim of bias in the WCJ s refusal to continue the hearing to receive Claimant s testimony. III. Claimant s third argument is that the WCJ erred in rejecting the testimony of Claimant s medical experts on grounds that their opinions lacked corroboration from Claimant s testimony. In the relevant credibility determinations, the WCJ found as follows. 7. I have carefully reviewed the medical evidence presented in this matter and find that the testimony of Dr. Leiner is not credible or persuasive. Dr. Leiner s opinions are based in part on the hearsay statements of the Claimant regarding her subjective symptoms, which have not been corroborated by Claimant s testimony. In addition, Dr. Leiner is not board certified, and relied in part upon diagnostic test results without review of the actual films. Dr. Leiner s testimony is also unpersuasive given Claimant s initial ability to return to light duty 14 Indeed, the record of each hearing and deposition includes more objections, interruptions and arguments by Claimant s counsel than testimony. 13 work, and given the duration of Dr. Leiner s subsequent treatment during which time he indicated Claimant s condition was unchanged. Accordingly, I reject the testimony of Dr. Leiner in its entirety. 8. I have carefully reviewed the medical testimony of Dr. Sbarbaro and Dr. Jaffe and find such testimony to lack credibility or persuasiveness. The doctors opinions were given in 1993 and 1994 and do not relate to the Claimant s condition as of October 12, 1989, the date alleged in the present Petition. To the extent that they support a worsening of condition on or after 1993 their opinions are unreliable because they are based upon Claimant s subjective symptoms which have not been corroborated by Claimant s testimony. (Findings of Fact, Nos. 7-8) (emphasis added). With respect to the WCJ s rejection of Dr. Leiner s testimony, we cannot agree with Claimant s argument. Even if Claimant were correct that the WCJ could not reject Dr. Leiner s testimony based solely on a lack of corroboration from Claimant, it is evident that the WCJ did not do so. In fact, the WCJ cites multiple valid reasons for finding Dr. Leiner s testimony unpersuasive, and, on appeal, we are bound by that credibility determination. Reeder v. Workers Compensation Appeal Board (Mercer Lime and Stone Co.), 871 A.2d 337 (Pa. Cmwlth. 2005). Further, the WCJ did not err in rejecting the opinions of Drs. Sbarbaro and Jaffe as unrelated to Claimant s condition on October 12, 1989, where their testimony does not address that period of time. However, the WCJ also found the testimony of Drs. Sbarbaro and Jaffe unreliable to the extent it supports a worsening of Claimant s work-related condition after 1993, explaining that the 14 medical opinions of these doctors were based upon Claimant s subjective symptoms, which lacked corroboration from Claimant s testimony. We conclude that rejection of the testimony of Drs. Sbarbaro and Jaffe on this basis reflects both legal and factual error. Brobst v. Workers Compensation Appeal Board (Schuylkill Products, Inc.), 824 A.2d 411 (Pa. Cmwlth. 2003) (stating that the purpose behind requiring a WCJ to give an explanation of the reasons for rejecting testimony is to ensure that a legally erroneous basis for a finding will not lie undiscovered and to allow meaningful appellate review of possible legal error). Contrary to the WCJ s factual finding, Drs. Sbarbaro and Jaffe did not base their opinions solely on Claimant s subjective complaints.15 Instead, these medical witnesses relied on Claimant s medical history and records, physical examination, objective tests and diagnostic studies to form their opinions. (1996 Decision, Findings of Fact, Nos. 4-5.) Therefore, the WCJ s characterization of the basis for their opinions is factually inaccurate and unsupported by substantial evidence in the record. In fact, we note that all the medical experts, including Dr. Duda, agree that Claimant s physical condition has worsened over the years and that she can no 15 Further, we note that, although Claimant did not testify in the litigation of her Petition, she did testify during litigation of the 1996 Decision. That decision is part of the record here and includes a summary of Claimant s 1995 testimony, wherein she indicates, inter alia, that her condition worsened since she began treating with Dr. Leiner in 1990. With respect to this testimony, the WCJ did not reject it as incredible but, rather, determined that it was not relevant or probative to the issue of her work capacity in 1989, which was the subject of the 1996 Decision. (1996 Decision, Findings of Fact, No. 13.) This testimony by Claimant does corroborate the opinions of Drs. Sbarbaro and Jaffe as to a worsening of her condition on or after 1993. 15 longer do even modified work. However, to succeed in her Petition, Claimant has the burden of proving that her total inability to work is caused by her work-related injury. Dillon v. Workmen s Compensation Appeal Board (Greenwich Collieries), 536 Pa. 490, 640 A.2d 386 (1994). In that regard, the opinions of the medical experts differ. Dr. Duda opined that the cause of Claimant s worsened condition was completely unrelated to her work injury, while Claimant s medical experts reach the opposite conclusion. Because the WCJ made no findings or credibility determinations with respect to this issue, we must remand. Accordingly, we vacate the WCAB s order, and we remand the case to the WCAB to remand to the WCJ for necessary findings and conclusions. _____________________________ ROCHELLE S. FRIEDMAN, Judge 16 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Kathryn Thompson, Petitioner v. Workers' Compensation Appeal Board (Rhone Poulenc & A.I.G. Claim Services, Inc.), Respondents : : : : : : : : : No. 315 C.D. 2007 ORDER AND NOW, this 10th day of March, 2008, the order of the Workers Compensation Appeal Board (WCAB), dated January 23, 2007, is hereby vacated. The case is remanded to the WCAB to remand to the workers compensation judge for necessary findings and conclusions in accordance with the foregoing opinion. Jurisdiction relinquished. _____________________________ ROCHELLE S. FRIEDMAN, Judge
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
