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10/31/97 MICHAEL E. ANDREWS AS ADMINISTRATOR ESTATE

October 31, 1997

MICHAEL E. ANDREWS AS ADMINISTRATOR OF THE ESTATE OF ROBERT ANDREWS, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (C & C COMPOST), RESPONDENT



Appealed From No. A95-0471. State Agency Workers' Compensation Appeal Board.

Before: Honorable Doris A. Smith, Judge, Honorable Rochelle S. Friedman, Judge, Honorable Silvestri Silvestri, Senior Judge. Opinion BY Judge Smith.

The opinion of the court was delivered by: Smith

OPINION BY JUDGE SMITH

FILED: October 31, 1997

Michael Andrews (Petitioner) as administrator of the estate of Robert E. Andrews (Andrews) petitions for review of the order of the Workers' Compensation Appeal Board (Board) affirming the order of a Workers' Compensation Judge (WCJ) that denied a claim petition filed by Andrews against C & C Compost (Employer). Petitioner questions whether the WCJ's decision was supported by the substantial, competent and credible medical testimony of record; whether the WCJ erred in accepting Employer's medical witness' non-medical opinion that it was unknown whether Claimant's injury occurred while at work and rejecting as immaterial and irrelevant the factual testimony of Claimant's witnesses; and whether the WCJ erred in finding the testimony of Andrews to be not credible when he did not testify. Petitioner further questions whether the WCJ erred in sustaining certain objections and whether there was error in the reassignment of the case from the WCJ who received the evidence to another WCJ solely for the purpose of issuing a decision.

I

WCJ Ollie E. Arrington, Jr., made findings that Andrews was first employed by Employer in September 1989 as a truck driver. He had a history of medical problems including hypertension, chronic alcoholism, G.I. bleeding from ruptured esophogalvarices and alcoholic encephalopathy secondary to portal hypertension. (This finding omits reference to the statement in the pertinent testimony that Andrews had been rehabilitated since 1982. Deposition of Dr. Joseph F. Kell, Jr., p. 8.) On October 24, 1989, Andrews parked his truck at the Campbell Soup facility in Reading, Pennsylvania. Approximately 30 to 45 minutes later a fellow employee found Andrews unconscious in the cab of his truck.

Dr. Richard Close, a board-certified neurological surgeon who treated Andrews at the emergency room, diagnosed an intracerebral hemorrhage, as did Dr. Joseph F. Klein, who treated him after he was transferred to another hospital. Dr. Klein stated that an intracerebral hemorrhage can be caused by a number of things, including hypertension, vascular malfunctions, bleeding disorders, aneurysms or trauma. Employer presented the medical testimony of Dr. Joseph F. Kell, Jr., a neurologist, who examined Andrews on June 3, 1991. Dr. Kell testified that there is no way of knowing if Andrews bumped his head against the cab of the truck.

The WCJ stated that the testimony of three family members and the co-worker who found Andrews was irrelevant to determining whether the injury was compensable and that their credibility therefore was immaterial. In Finding of Fact No. 8 the WCJ stated that he considered the conflicting factual and medical testimony, that the testimony of Robert Andrews was found to be not credible and was rejected in its entirety, that the opinions and Conclusions of Drs. Klein and Close were based on hearsay and speculation and were less persuasive than those of Dr. Kell. The WCJ also stated that Andrews had failed to meet his burden of offering unequivocal medical testimony establishing a causal connection between his employment and his injury. In the Conclusions of Law the WCJ repeated that Andrews had failed to sustain his burden of proving that he suffered a work-related injury.

On appeal the Board referred to its limited appellate role and concluded that the medical evidence presented was neither insubstantial nor incompetent. Stating that it would not reweigh the evidence, the Board affirmed. The scope of this Court's review is to determine whether there were constitutional violations or errors of law and whether the necessary findings are supported by substantial evidence in the record. Russell v. Workmen's Compensation Appeal Board (Volkswagen of America), 121 Pa. Commw. 436, 550 A.2d 1364 (Pa. Commw. 1988).

II

Petitioner first emphasizes the fact that all three doctors testified that Andrew's intracerebral hematoma was caused by a blow to the head and that the emergency room records support this. In addition, all three doctors ruled out hypertension as the cause. Petitioner quotes Dr. Kell's answer when asked whether there was any way of determining if Andrews' injury occurred by his bumping his head against his truck: "For me, there is no -- it's hearsay, and there's no way to say how his head was injured. He had an injury to his head." Deposition of Dr. Kell, p. 16. Once the fact was established that the injury was caused by trauma, Petitioner contends, the only remaining question was when the trauma occurred. The testimony of Andrews' fact witnesses was relevant to this question. In determining issues such as causation, a WCJ must look to the whole record. Bailey v. Workmen's Compensation Appeal Board (Lawton Feed & Supply, Inc.), 105 Pa. Commw. 106, 523 A.2d 415 (Pa. Commw. 1987).

Employer argues that Andrews did not present unequivocal medical testimony when Dr. Klein testified that when Andrews told him that he had bumped his head, Dr. Klein believed that, because Andrews is so tall, he might have banged his head against the roof of the truck: "But that's purely a theory. That is a possibility." Deposition of Dr. Klein, p. 32. Employer also cites the testimony of Dr. Kell stating that the very nature of Andrews' injury prevents him from being able to explain to anyone ...


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