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07/30/97 RUSSELL AUSBURN v. WORKERS' COMPENSATION

COMMONWEALTH COURT OF PENNSYLVANIA


July 30, 1997

RUSSELL AUSBURN, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (MERRELL & GARAGUSO), RESPONDENT

Appealed From No. A95-1912. State Agency Workers' Compensation Appeal Board.

Before: Honorable Doris A. Smith, Judge, Honorable James R. Kelley, Judge, Honorable Charles P. Mirarchi, Jr., Senior Judge. Opinion BY Judge Kelley. Judge Smith joins on affirmance of board and Dissents as to counsel fees. Judge Leadbetter did not participate in the decision in this case.

The opinion of the court was delivered by: Kelley

OPINION BY JUDGE KELLEY

FILED: July 30, 1997

Russell Ausburn (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). *fn1 We affirm.

The facts of this case 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 13, 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. Javian 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 case 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 sustain his burden to prove disability from a work-related injury, and denied his 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 opinion affirming the WCJ's decision. This appeal followed.

As in his last appeal to this court, claimant contends that the WCJ erred in concluding that he had failed to meet his burden of proof entitling him to disability benefits. Claimant argues that this determination is not supported by substantial evidence. *fn2

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. Commw. 382, 539 A.2d 11 (Pa. Commw. 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. Commw. 451, 479 A.2d 631 (Pa. Commw. 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. Commw. 1995). As the fact finder, the WCJ is entitled to accept or reject the testimony of any witness, including a medical witness, in whole or in part. Greenwich Collieries v. Workmen's Compensation Appeal Board (Buck), 664 A.2d 703 (Pa. Commw. 1995); General Electric Co. v. Workmen's Compensation Appeal Board (Valsamaki), 140 Pa. Commw. 461, 593 A.2d 921 (Pa. Commw. 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. Workmen's Compensation Appeal Board (Skirpan), 531 Pa. 287, 612 A.2d 434 (1992). Our appellate role is not to reweigh evidence or to review the credibility of witnesses. Id. Thus, determinations of the WCJ as to witness credibility and evidentiary weight are within the exclusive province of the WCJ and are not subject to appellate review. Greenwich Colleries ; Hayden.

As we stated in our prior opinion:

At this point, we note that Dr. Javian's expert testimony, if believed, is sufficient to establish that Claimant's current disability is work-related. However, the found that (1) none of Claimant's testimony was credible and (2) none of Dr. Javian's expert testimony was credible because it was based in part upon an unreliable history provided by Claimant. As the ultimate factfinder, it is exclusively within the province of the to determine witness credibility. Sun Oil Co. v. Workmen's Compensation Appeal Board (Thompson), 158 Pa. Commw. 434, 631 A.2d 1084 (1993).

Ordinarily our inquiry would end at this point. However, because we cannot discern whether the based his credibility determination on inadmissible evidence, we deem it necessary to remand the case to the for reconsideration of that determination. In doing so, we do not usurp the factfinder's role as sole arbiter of credibility. We seek only to assure ourselves that Claimant was not unduly prejudiced by the inclusion in the record of documents related to his prior criminal convictions, documents which the admitted in error.

Ausburn v. Workmen's Compensation Appeal Board (Merrell & Garaguso) slip op. at 7-8.

As noted above, after remand, the WCJ determined that claimant's testimony was not credible based on his demeanor while testifying. The WCJ also found Dr. Javian's testimony to be not credible as it was based in part on the not credible and unreliable history provided by claimant. In making these determinations, the WCJ did not consider any of the evidence which was deemed inadmissible by this court.

As the finder of fact, the WCJ was free to reject the testimony of claimant and his medical witness in whole or in part. Greenwich Colleries ; General Electric Co. Moreover, the WCJ's credibility determinations in this regard were exclusively within her province and are not subject to appellate review. Sherrod ; Greenwich Colleries ; Hayden. In sum, the WCJ was free to find the evidence presented by claimant as not credible, and this determination will not be disturbed on appeal.

As a final matter, we note that employer asks that counsel fees be imposed against claimant's counsel pursuant to Pa.R.A.P. 2744 *fn3 because the instant appeal is meritless and frivolous. Employer asserts that because, as in claimant's prior appeal to this court, the sole claim raised in the instant appeal is that substantial evidence does not support the credibility determination of the WCJ, this second appeal of the WCJ's decision is unwarranted and frivolous. As we advised claimant and his counsel in our prior opinion, such a credibility determination is not reviewable and will not be reversed on appeal. Therefore, we agree with employer that the instant appeal is meritless and frivolous, and we will grant its request for an assessment of reasonable counsel fees against claimant's counsel. See, e.g., Phillips v. Workmen's Compensation Appeal Board (Century Steel), 680 A.2d 45 (Pa. Commw. 1996), petition for allowance of appeal granted (49 Western Dist. Appeal Dkt. 1997, June 11, 1997); Pennsylvania Department of Transportation v. Workmen's Compensation Appeal Board (Tanner), 654 A.2d 3 (Pa. Commw. 1994); Morrell v. Department of Transportation, Bureau of Traffic Safety, 133 Pa. Commw. 338, 575 A.2d 171 (Pa. Commw. 1990).

Accordingly, the order of the board is affirmed, and employer's request for the assessment of reasonable counsel fees against claimant's counsel is granted. Employer shall file a bill of costs pursuant to Pa.R.A.P. 3751. *fn4

JAMES R. KELLEY, Judge

Judge Smith joins on affirmance of board and Dissents as to counsel fees.

Judge Leadbetter did not participate in the decision in this case.

ORDER

NOW, this 30th day of July, 1997, the order of the Workers' Compensation Appeal Board, dated January 14, 1997, at No. A95-1912, is affirmed, and Merrell & Garaguso's request for the assessment of counsel fees against counsel for Russell Ausburn is granted. Merrell & Garaguso shall file a bill of costs pursuant to Pa.R.A.P. 3751.

JAMES R. KELLEY, Judge


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