U.S. Steel Mining Co. v. Workers' Compensation Appeal Board

DISSENTING OPINION BY

Judge LEAVITT.

I must respectfully dissent. The WCJ was understandably confounded by a unique confluence of events in this case. Decedent’s medical history was virtually devoid of any relevant evidence, while two preeminent pathologists offered equally persuasive, and diametrically opposed, opinions on causation. Notwithstanding these exceptional circumstances, the WCJ was still duty-bound to issue a “reasoned decision” pursuant to Section 422 of the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 834.1 As our Supreme Court has explained, a WCJ faced with conflicting medical expert testimony cannot merely announce that he “deemed one expert more ‘credible and persuasive’ than another.” Daniels v. Workers’ Compensation Appeal Board (Tristate Transport), 574 Pa. 61, 78, 828 A.2d 1043, 1053 (2003).

[Ajbsent the circumstance where a credibility assessment may be said to have *717been tied to the inherently subjective circumstance of witness demeanor, some articulation of the actual objective basis for the credibility determination must be offered for the decision to be a “reasoned” one which facilitates effective appellate review.

Id. (emphasis added).

In this case, the WCJ found Dr. Wecht to be more credible than Dr. Oesterling and described Dr. Wecht’s opinions as “closely reasoned and logical and sequential” and “much more supported by the evidence.” WCJ Opinion at 7; Reproduced Record at 16a (R.R._).2 Stated otherwise, this was merely an announcement that the WCJ found Dr. Wecht’s opinions to be more persuasive. On review, the Board pointedly criticized the WCJ for failing to identify the evidence that supported Dr. Wecht’s opinions and then went on to conclude there was no such evidence in the record. The Board continued that “the WCJ does not explain how or why Dr. Wecht’s opinion is more logical.” Board Opinion at 9; R.R. 29a. Nevertheless, the Board upheld the WCJ’s credibility determination, noting that" he “had to pick one doctor’s opinion,” and then affirmed the WCJ’s pick because, in the Board’s view, it was supported by substantial evidence. Id.

Unlike the majority, I do not believe that the Board was free to ignore the obvious deficiencies in the WCJ’s decision, especially since Employer had lodged a challenge on that very issue. Whether the WCJ’s decision was supported by substantial evidence is of no moment. The fact remains that the decision clearly fell short of the reasoned decision standard contained in Section 422 of the Act and explained more fully by our Supreme Court in Daniels. A WCJ cannot simply “pick one” when the credibility determination is difficult. I recognize that the exceptional circumstances of this case may test the limits of the Daniels standard. However, I think it unwise to allow the exception to swallow the rule where a WCJ is confronted with a particularly difficult record.3

Based upon the foregoing, I would reverse the Board’s order denying reconsideration and remand for further consideration in light of Daniels.

. It states:

All parties to an adjudicatory proceeding are entitled to a reasoned decision containing findings of fact and conclusions of law based upon the evidence as a whole which clearly and concisely states and explains the rationale for the decisions so that all can determine why and how a particular result was reached. The workers' compensation judge shall specify the evidence upon which the workers’ compensation judge relies and state the reasons for accepting it in conformity with this section. When faced with conflicting evidence, the workers’ compensation judge must adequately explain the reasons for rejecting or discrediting competent evidence. Uncontroverted evidence may not be rejected for no reason or for an irrational reason; the workers’ compensation judge must identify that evidence and explain adequately the reasons for its rejection. The adjudication shall provide the basis for meaningful appellate review.

77 P.S. § 834 (emphasis added).

. The majority accepts the WCJ’s finding that Dr. Oesterling made admissions during cross-examination that called his credibility into question. The Board rejected this finding, however, noting that Dr. Oesterling stated only in general terms that moderately severe coal workers’ pneumoconiosis can produce respiratory impairment and in some instances contribute to death. Dr. Oesterling in no way admitted that Decedent died as a result of pneumoconiosis or respiratory distress. When read in its proper context, this testimony does not support the WCJ’s finding that Dr. Oesterling was somehow less credible.

. It bears noting that a WCJ faced with seemingly irreconcilable, conflicting testimony is empowered under the Act to subpoena witnesses and hear live testimony in order to make an objective evaluation. Section 418 of the Act, 77 P.S. § 833. The WCJ in this case would have been well-advised to avail himself of these statutory mechanisms rather than flipping a proverbial coin.