Kevin Kennelty v. WCAB (Schwan's Home Service, Inc.), Petition of Schwan's Home Service, Inc. (Concurring Statement)

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IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT KEVIN KENNELTY v. WORKERS' COMPENSATION APPEAL BOARD (SCHWAN'S HOME SERVICE, INC.) PETITION OF: SCHWAN'S HOME SERVICE, INC. : : : : : : : : : : : : No. 349 WAL 2006 Petition for Allowance of Appeal from the Order of the Commonwealth Court entered May 31, 2006, at No. 2357 CD 2005, reversing the Order of the Workers' Compensation Appeal Board entered November 2, 2005, at No. A05-0492 and remanding. CONCURRING STATEMENT MR. JUSTICE SAYLOR FILED: November 14, 2007 I support the Commonwealth Court s refusal to accept that the experience of a food delivery person of multiple incidents of robbery at gunpoint over a six-month period can be characterized as anything other than an abnormal working condition. I join the result reached by the majority, solely because I view the WCJ s statement that Claimant s medical experts were not persuasive and the ensuing explanation for such statement as constituting a credibility determination that is binding on appeal. But see Canavan v. WCAB (B&D Mining Co.), 769 A.2d 1250 (Pa. Cmwlth. 2001) (holding that the WCJ s use of the term not persuasive when discussing testimony from a medical expert may be subject to different interpretations and remanding for clarification of whether the evidence was rejected on credibility or competency grounds).

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