Puhl v. Workers' Compensation Appeal Board

KELLEY, Judge,

dissenting.

I respectfully dissent. The majority recognizes that a rehearing is not permitted simply for the purpose of strengthening weak proofs, which have already been presented, or for the purpose of hearing additional testimony, which is merely cumulative. See Paxos v. Workmen’s Compensation Appeal Board (Frankford-Quaker Grocery), 158 Pa.Cmwlth. 355, 631 A.2d 826 (1993). Despite this axiom, the majority concludes that the evidence which Claimant wishes to introduce on remand in this case is not merely cumulative or being presented for the purpose of strengthening weak proofs. I disagree.

The majority correctly concludes, based on our Supreme Court’s decisions in Joseph v. Workmen’s Compensation Appeal Board (Delphi Company), 522 Pa. 154, 560 A.2d 755 (1989) and Cudo v. Hallstead Foundry, Inc., 517 Pa. 553, 539 A.2d 792 (1988), that the board has broad power to grant a rehearing where justice requires. The majority then goes on to conclude, based on the unique facts of this case, that justice dictates a remand by the board and in refusing claimant’s remand request, the board clearly failed to administer its authority to grant a rehearing liberally in favor of Claimant’s interest.

While it is true that the new medical tests performed were more elaborate than those previously performed on Claimant, this new medical evidence Claimant wishes to introduce at a hearing on remand simply buttresses Claimant’s claim that he is disabled from pneumoconiosis. The WCJ clearly rejected Claimant’s medical evidence that Claimant was disabled as a result of pneumoconiosis as equivocal. This was well within the WCJ’s province.1

Moreover, the reasons given by the majority as to why this case is so unique, ie., Claimant’s lack of funds to secure the new medical evidence until his award of social benefits and the cost of the new testing, were presented to the board in Claimant’s request for remand. See Reproduced Record at 180a-82a. Thus, the board was aware of Claimant’s situation and, in its discretion, still denied Claimant’s request for a remand. Therefore, the majority’s reversal in this case of the board’s order denying Claimant’s request for a remand infringes upon the board’s broad authority to grant or deny a request for remand. As such, I disagree with the majority’s decision, which gives Claimant a second bite at the apple after losing before the WCJ.

*1004Accordingly, I would affirm the board’s order.

. 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 (1991), petition for allowance of appeal denied, 529 Pa. 626, 600 A.2d 541 (1991).