Allegheny Ludlum Corp. v. Workers' Compensation Appeal Board

DISSENTING OPINION BY

Senior Judge KELLEY.

I respectfully dissent. The law regarding the requirement for medical evidence of record proving Claimant’s awareness of the work-relatedness of her injury in this matter is clear, and the record herein, as well as the WCJ’s credibility determinations, control. The Majority relies upon evidence not expressly found credible by the WCJ, draws a conclusion therefrom in contradiction to the credibility determinations of the WCJ, and extracts inferences from the evidence that are adverse to Claimant, the prevailing party before the WCJ and the Board.

The Majority’s citation to evidence of record that the Majority concludes establishes Claimant’s awareness of a medical opinion connecting her injury to her work prior to the filing of her Claim Petition relies upon evidence that was not expressly found credible by the WCJ. In determining whether substantial evidence supports a WCJ’s finding of fact, it is irrelevant that the record reveals evidence that would support a contrary finding; the relevant inquiry is whether the record contains substantial evidence supporting the actual findings that were made. Grabish v. Workmen’s Compensation Appeal Board (Trueform Foundations, Inc.), 70 Pa.Cmwlth. 542, 453 A.2d 710 (1982). The Majority’s reliance upon this evidence of record ignores the foundational *1038axiom that the WCJ, as the ultimate fact finder in workers’ compensation cases, has exclusive province over questions of credibility and evidentiary weight, and is free to accept or reject the testimony of any witness, including a medical witness, in whole or in part. General Electric Co. v. Workmen’s Compensation Appeal Board (Valsamaki), 140 Pa.Cmwlth. 461, 593 A.2d 921, petition for allowance of appeal denied, 529 Pa. 626, 600 A.2d 541 (1991). The Majority’s reliance upon its cited evidence of record usurps the WCJ’s fact-finding role, and contradicts the WCJ’s express credibility determinations regarding Claimant’s testimony in relation to her awareness of the work-relatedness of her injury.

Sell v. Workers’ Compensation Appeal Board (LNP Engineering), 565 Pa. 114, 771 A.2d 1246 (2001), clearly establishes that a claimant cannot be charged with knowledge of the work-relatedness of an injury in the absence of expert medical opinion recognizing that nexus and so informing the claimant, for purposes of employer notice under Section 311 of the Workers’ Compensation Act (Act).1 While Sell is factually distinguishable from the facts sub judice in some respects, its control under the instant facts is beyond dispute given the WCJ’s credibility determinations.

The Majority, in distinguishing Sell, relies on the “reasonable diligence” exception to the medical evidence requirement stated within Section 311, and recognized in Sell. However, the Supreme Court in Sell was also reviewing a reversal of a WCJ’s findings when it considered — and rejected — the reasonable diligence exception, in light of the WCJ’s crediting of the claimant’s testimony regarding her lack of knowledge of the work-relatedness of her injury prior to medical opinion confirmation. Within that specific context, the Supreme Court emphasized that Section 311 “calls for more than an employee’s suspicion, intuition or belief,” notwithstanding the objective nature of the determination of the reasonable diligence due on the part of a claimant. Sell, 565 Pa. at 126, 771 A.2d at 1253.

In usurping the WCJ’s credibility determinations in this matter, the Majority extracts an assumption that Claimant should have known of the work-relatedness of her injury. However, and disposi-tively, an equally plausible assumption exists that Claimant’s “suspicions, intuitions, or beliefs” were contradicted by her employment of reasonable diligence. As the Majority recognizes,2 Claimant met with several medical experts prior to being directly told that her injury was work-related. The fact that Claimant received no medical opinion of work-relatedness from any of those prior diagnoses leads to an equally (or more) valid assumption that Claimant relied on the absence of a medically diagnosed nexus in discounting any intuition on her part that her injury was work-related.3 Thus, even with the assumption charged to Claimant in terms of the due diligence owed as assigned by the Majority, it was eminently reasonable for *1039Claimant to disregard any such assumption given the undisputed medical evidence of record. As a reviewing Court, we are constrained to read the evidence of record in a light most favorable to Claimant as the prevailing party below, including the granting of the benefit of all inferences reasonably drawn therefrom. Sell (citation omitted). Given the credibility accorded to Claimant’s testimony by the WCJ, the Majority’s extraction of an inference adverse to Claimant’s express testimony is error.

In Sell, the Supreme Court found the claimant to have exercised reasonable diligence in seeking medical knowledge and opinion in trying to determine the cause of her disability; therein, that diligence resulted in expert opinion as to the work-relatedness. Claimant here equally exercised reasonable diligence in seeking medical diagnoses of her injury, even assuming arguendo the Majority’s reliance upon what Claimant should have intuited about the injury given her prior medical history. However, unlike the claimant in Sell, no such causal nexus was presented to Claimant in this matter in her initial medical diagnoses. The Majority’s analysis on this issue appears to conflate the expert medical testimony on when the doctors in this matter may have been aware of the work-relatedness of Claimant’s injury, with the crucial dispositive issue of when Claimant herself was aware of any such medical opinion of work-relatedness. I note again that the WCJ found Claimant to be credible4 on the issue of Claimant’s notice to Employer of her injury in a timely fashion once she was medically informed of the causal nexus with her work.

The entirety of the Majority’s analysis in this matter relies upon inferences drawn from the evidence of record, which inferences the Majority extracts as adverse to Claimant. As noted above, this Court must view the evidence in the light most favorable to the party that prevailed before the WCJ, and must draw all reasonable inferences from the evidence in support of the WCJ’s decision. Sell; Bentley v. Workers’ Compensation Appeal Board (Pittsburgh Board of Education), 987 A.2d 1223 (Pa.Cmwlth.2009).

To the extent that any inferences may be drawn from the testimony of record herein, those inferences must as a matter of law favor Claimant as the prevailing party. Sell; Bentley. Those favorable inferences are bolstered by the WCJ’s credibility determinations herein. Additionally, those favorable inferences are equally applicable to the issue of Claimant’s exercise of reasonable diligence in seeking medical knowledge and opinion in trying to determine the cause of her disability, on the issue of her actual knowledge thereof (notwithstanding the knowledge of work-relatedness by the medical experts herein), and on the issue of her timely notice to Employer. Id. To the extent that disposition of this case is precluded by the WCJ’s failure to expressly note in his findings the precise date that Claimant became aware of the work-relatedness of her injury, I would remand for such a finding on that single narrow issue, in order to enable effective appellate review.

. Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 631.

. The Majority's recitation of multiple medical opinions finding a work-related cause for Claimant's injury is irrelevant to the issue of employer notice; those opinions are bereft of any record testimony that Claimant was informed of that work-relatedness within a time frame that would render her notice to Employer untimely under the Act.

.I note that the record establishes that Claimant had two prior foot injuries of an apparently similar medical nature, neither of which was found to be a compensable injury under the Act. WCJ Opinion at 1-2.

. Our appellate role in worker's compensation cases is not to reweigh the evidence or review the credibility of witnesses, but merely to determine whether the WCJ’s findings have the requisite measure of support in the record. Sett (citation omitted).