Ausburn v. Workers' Compensation Appeal Board

698 A.2d 1356, 1997 Pa. Commw. LEXIS 339
CourtCommonwealth Court of Pennsylvania
DecidedJuly 30, 1997
StatusPublished
Cited by10 cases

This text of 698 A.2d 1356 (Ausburn v. Workers' Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ausburn v. Workers' Compensation Appeal Board, 698 A.2d 1356, 1997 Pa. Commw. LEXIS 339 (Pa. Ct. App. 1997).

Opinion

KELLEY, Judge.

Russell Ausbum (claimant) appeals from an order of the Workers’ Compensation Appeal Board affirming the decision of a workers’ compensation judge (WCJ) dismissing his claim petition for benefits under the Pennsylvania Workers’ Compensation Act (Act).1 We affirm.

[1357]*1357The facts of this ease may be summarized as follows. On June 17, 1988, claimant injured his left foot and ankle while in the course of his employment as a carpenter for Merrell and Garaguso (employer). As a result of this injury, claimant received workers’ compensation benefits under New Jersey law; however, on January 22, 1989, these benefits were terminated.

On or about August 15,1989, claimant filed a claim petition for benefits under the Pennsylvania Act, alleging disability based on the work-related injury. Employer filed a timely answer denying all material allegations in the claim petition, and hearings were conducted before a WCJ.

After considering the evidence presented by the parties, the WCJ found as fact: (1) on June 17, 1988 claimant injured his left foot and ankle while working for employer; (2) on August 18, 1988, claimant was involved in a criminal assault and he admitted that he had entered the victim’s home while in his bare feet and punched the victim three times; (3) on August 22,1988, claimant was seen by Dr. Thomas Javian and failed to inform Dr. Javi-an of the assault; and (4) a private investigator hired by employer observed claimant employed as a limousine driver while he was purportedly disabled. Specifically, the WCJ rejected claimant’s testimony regarding claimant’s disability as not credible, and rejected Dr. Javian’s testimony regarding his disability as not credible as it was based in part on the history which was provided by claimant. As a result, the WCJ determined that claimant had failed to prove by substantial competent evidence that he was disabled because of his work-related injury.

Claimant appealed the WCJ’s decision to the board. On September 1,1993, the board issued an order and opinion affirming the WCJ’s decision.

Claimant then filed an appeal of the board’s decision in this court. On May 24, 1994, this court issued an order and opinion vacating the board’s order and remanding the ease to the board for remand to the WCJ. Ausburn v. Workmen’s Compensation Appeal Board (Merrell & Garaguso) (No. 2247 C.D.1993, filed May 24, 1994). This court determined, inter alia, that the evidence relating to the assault committed by claimant was inadmissible in the proceedings. Because the WCJ may have based his credibility determinations on this inadmissible and highly prejudicial evidence, the case was remanded so that the WCJ could reconsider the credibility of the witnesses in the absence of this evidence.

After remand, on April 12, 1995, the WCJ issued another decision denying claimant’s petition for benefits. The WCJ made the following relevant findings of fact:

1. On June 17, 1988, the Claimant was employed as a carpenter for [employer],
2. On that date he injured his left foot and left ankle at work.
3. Claimant testified on July 13, 1990, that he continues to feel pain in his left ankle, to the extent that he cannot walk for even one hour without pain. He also testified that he has not returned to work since June 17,1988.
4. Claimant first treated with Dr. Thomas Javian for his work injury on August 22, 1988. Claimant informed Dr. Javian that he previously injured his left ankle in 1978, but Dr. Javian did not review any tests or medical reports relevant to this prior injury-
5. This Judge has not considered any of the evidence previously submitted in this case which was deemed inadmissible by the Commonwealth Court, specifically regarding his arrest.
6. This Judge rejects the testimony of the Claimant as not credible, based on his demeanor while testifying.
7. This Judge rejects the testimony of Dr. Javian as not credible, since it is based in part on the history which he was given by the Claimant. The Judge finds that history not credible and completely unreliable.
8. This Judge accepts the testimony of the hired investigator, Mark Shaffer, and finds that the Claimant was driving a limousine in direct contradiction of his testimony.
9. This Judge finds that any disability the Claimant suffers at this time is not related to his June 17, 1988 incident at work.

WCJ Opinion, pp. 1-2. As a result, the WCJ again determined that claimant had failed to [1358]*1358sustain Ms burden to prove disability from a work-related injury, and denied Ms claim petition for benefits.

Thereafter, claimant filed an appeal from the WCJ’s decision to the board. On January 14, 1997, the board issued an order and oprnion affirming the WCJ’s decision. TMs appeal followed.

As in Ms last appeal to this court, claimant contends that the WCJ erred in concluding that he had failed to meet Ms burden of proof entitling him to disability benefits. Claimant argues that tMs determination is not supported by substantial evidence.2

We initially note that our scope of review is limited to determining whether constitutional rights were violated, an error of law was committed, appeal board procedure was violated, or whether necessary findings of fact are supported by substantial evidence. Lehigh County Vo-Tech School. “Substantial evidence” is any relevant evidence that a reasonable mind might consider adequate to support a conclusion. Mrs. Smith’s Frozen Foods Co. v. Workmen’s Compensation Appeal Board (Clouser), 114 Pa.Cmwlth. 382, 539 A.2d 11 (1988).

In a workers’ compensation proceeding, the WCJ is the ultimate finder of fact. Hayden v. Workmen’s Compensation Appeal Board (Wheeling Pittsburgh Steel Corp.), 83 Pa.Cmwlth.451, 479 A.2d 631 (1984). The authority of the WCJ over questions of credibility, conflicting evidence and evidentiary weight is unquestioned. Sherrod v. Workmen’s Compensation Appeal Board (Thoroughgood, Inc.), 666 A.2d 383 (Pa.Cmwlth.1995). As the fact finder, the WCJ is entitled to accept or reject the testimony of any witness, mcluding a medical witness, in whole or in part. Greenwich Collieries v. Workmen’s Compensation Appeal Board (Buck), 664 A.2d 703 (Pa.Cmwlth.1995); General Electric Co. v. Workmen’s Compensation Appeal Board (Valsamaki), 140 Pa.Cmwlth. 461, 593 A.2d 921 (1991), petition for allowance of appeal denied, 529 Pa. 626, 600 A.2d 541 (1991).

The role of both the board and this court in a workers’ compensation matter are appellate in nature. Sherrod, 666 A.2d at 386 n. 6, citing Bethenergy Mines, Inc. v.

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Bluebook (online)
698 A.2d 1356, 1997 Pa. Commw. LEXIS 339, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ausburn-v-workers-compensation-appeal-board-pacommwct-1997.