Leon E. Wintermyer v. WCAB (MARLOWE)

• Decision Date: 10 December 2002
• Citation: 812 A.2d 478,571 Pa. 189
• Parties: LEON E. WINTERMYER, INC. and American General Group, Appellants v. WORKERS' COMPENSATION APPEAL BOARD (MARLOWE), Appellees Penn National Insurance Co., Intervenor.
• Court: Pennsylvania Supreme Court

812 A.2d 478

571 Pa. 189

LEON E. WINTERMYER, INC. and American General Group, Appellants v. WORKERS' COMPENSATION APPEAL BOARD (MARLOWE), Appellees

Penn National Insurance Co., Intervenor.

Supreme Court of Pennsylvania.

Argued November 13, 2001.

Decided December 10, 2002.

Scott Alan Fleischauer, Hunt Valley, MD, for Lorne G. Seifert and PMA Group, defendant.

Robert Burke McLemore, Harrisburg, for Wintermyer, Inc. and American General Group, Appellants.

James A. Holzman, Harrisburg, Amber Marie Kenger, Mechanicsburg, for W.C.A.B., appellee.

David Bruce Hanes, Philadelphia, for Linda Marlowe, appellee.

Mary T. Uhlig, Philadelphia, Steven R. Tregea, State College, for Penn Nat. Ins. Co., Intervenor.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION

SAYLOR, Justice.

This appeal concerns the application, in the administrative law setting, of what has been termed the capricious disregard standard of appellate review.

In November of 1993, Linda Marlowe ("Claimant") filed a claim petition seeking benefits against Leon E. Wintermyer, Inc. ("Employer"), and its insurer, American General Group, pursuant to the Workers' Compensation Act.¹ Claimant alleged that, in March of 1993, she sustained an injury—bilateral carpal tunnel syndrome ("CTS")—in the course and scope of her employment primarily as a bookkeeper. On the same day, Claimant also asserted a claim against her previous employer, Lorne G. Seifert, Inc. ("Seifert"), alleging that her clerical duties at that company contributed to her injury. Employer filed a joinder petition against Seifert for the same reason and, subsequently, filed a second joinder petition, contending that any injury occurred while Claimant worked for another company, H & R Block, as a tax preparer.²

The WCJ treated the petitions on a consolidated basis for purposes of hearing and decision. The parties stipulated that Claimant's work with Employer spanned the fall of 1991 through mid-1993; her job with Seifert from 1987 through 1990; and her seasonal employment with H & R Block several months in 1991 (full time), as well as in 1992 through 1993 (part time). Claimant testified that her duties for all employers included substantial periods of repetitive hand motion, particularly typing and computer keyboarding; she experienced tingling and numbness in her fingers and right arm in December of 1989, while employed by Seifert; she was treated by a chiropractor in 1990 and ultimately referred to a physician, who diagnosed CTS; while working for Employer, she spent seventy percent of her time typing at a computer keyboard; working full time for Employer, her symptoms increased; she came under the care of James A. Yates, M.D., in February of 1992; and it was at such time that she learned that her CTS was work related.

Claimant also presented Dr. Yates' testimony via deposition transcript. His description concerning onset and treatment of the CTS was consistent with Claimant's; further, he explained that he performed several surgical procedures in 1992 and 1993 to alleviate the symptoms. According to Dr. Yates, Claimant's injury caused permanent nerve damage, and her condition was related to her employment and caused by repetitive motion, including typing, keyboarding, and writing. On crossexamination, Dr. Yates indicated that his opinion concerning work-relatedness was predicated upon the work and medical history provided by Claimant, and that such history was generalized in nature.³ Dr. Yates also identified a series of other causes for CTS, although he emphasized that repetitive motion activities were the most common source.

Employer presented testimony from its director of human services and the accounting employee who replaced Claimant, both of whom substantially contradicted Claimant's assertions concerning the amount of time that she spent performing data entry on a daily basis. The supervisor testified that the majority of Claimant's work involved working with invoices and other documents, and that she did not spend a great deal of time at a computer terminal. The clerical worker stated that, in performing Claimant's duties, she spent no more than two hours per day on data entry; the remainder of the workday involved non-repetitive tasks; and many days she did not spend any time at a keyboard. Employer did not present an expert medical witness, nor did Seifert present evidence.

In her findings, the WCJ emphasized inconsistencies, conflicts, and vagaries in Claimant's evidence. For example, she contrasted the extensive evidence to the effect that Claimant's difficulties with CTS were longstanding and clearly evident in June of 1990, with a disability claim form submitted to Employer by Claimant indicating that her CTS first appeared in August of 1992; credited the testimony of Employer's witnesses over Claimant's concerning the extent of repetitive motion activity she performed; and emphasized that Dr. Yates was unable to specify any particular event leading to or time of an onset or aggravation of Claimant's injury. The WCJ specifically stated that the testimony of Claimant and Dr. Yates was not credible. Therefore, the WCJ concluded that Claimant failed to sustain her burden of proving that her injury was work related and entered an order dismissing the claim petitions against Employer and Seifert, as well as Employer's joinder petition.

The Workers' Compensation Appeal Board ("WCAB"), however, reversed. Preliminarily, it acknowledged that its review was in an appellate capacity, and it was therefore not its function to weigh the evidence and resolve conflicts, but rather, such role was assigned to the WCJ. Further, the WCAB noted that it was within the WCJ's discretion to accept or reject, in whole or in part, the testimony of any witness, including an expert. Nevertheless, the WCAB indicated that, in instances in which only the party bearing the burden of proof presents evidence and relief is denied, it is appropriate for an appellate tribunal to review an administrative adjudication to ensure that it is free from any capricious disregard of competent evidence. Although acknowledging that Employer presented fact witnesses in rebuttal to Claimant's testimony, the WCAB emphasized that Employer had not presented expert evidence to challenge Dr. Yates' testimony. The WCAB invoked a traditional definition of capricious disregard as "a willful, deliberate disbelief of an apparently trustworthy witness, whose testimony one has no basis to challenge." The WCAB then quoted extensively from Dr. Yates' testimony concerning Claimant's injury and his conclusion as to its work relatedness; characterized such testimony as unequivocal; and concluded that the WCJ erred in rejecting it, at least to the extent that it supported an aggravation of a pre-existing condition and/or a repetitive trauma injury. The WCAB therefore remanded the matter to the WCJ, requiring a determination of the date of injury and identification of the liable employer. On remand, the WCJ granted the claim petition for the work period from June 21, 1993, through June 1, 1994, and identified Employer as the liable party. The WCAB subsequently extended this period by fifteen months.

Before a panel of the Commonwealth Court, Employer argued, inter alia, that in its initial opinion, the WCAB improperly applied the capricious disregard standard of appellate review, thereby usurping the WCJ's determinations of credibility and evidentiary weight. Like the WCAB, the Commonwealth Court majority emphasized that Employer had not presented medical evidence and, accordingly, also invoked what it termed a capricious disregard standard of review. On such basis, the Commonwealth Court rejected Employer's argument, reasoning:

In order to make such determination [concerning capricious disregard], the [WCAB] reviewed the medical testimony of record in order to determine if it was equivocal or unequivocal. Such a review required the Board's assessment of the competency of the evidence, not its credibility. Thus, Employer is mistaken in its assertion that the [WCAB's] assessment of the competency of the medical evidence of record was an evaluation of its credibility and evidentiary weight.

(emphasis in original). After resolving additional questions raised by Employer, the Commonwealth Court affirmed the WCAB's order in a memorandum opinion, remanding the matter for reasons unrelated to the present appeal.

Judge Friedman concurred in the result but wrote separately to express her belief that the WCAB should not have applied a capricious disregard review standard, but rather, should have employed a substantial evidence test. She reasoned that the court's precedent clearly established that review for capricious disregard applied in the limited circumstance in which the burdened party does not prevail and was the sole presenter of evidence. Judge Friedman noted a conflict in authority concerning the application of the review standard in cases in which only the burdened party presents medical evidence but both parties present lay testimony or other non-medical evidence. Compare Iacono v. WCAB (Chester Housing Auth.), 155 Pa.Cmwlth. 234, 624 A.2d 814 (1993),

aff'd per curiam, 536 Pa. 535, 640 A.2d 408 (1994),

with Tomczak v. WCAB (Pro-Aire Transport, Inc.), 150 Pa.Cmwlth. 431, 615 A.2d 993 (1992). Citing to Iacono, Judge Friedman concluded that the controlling position is that, when both parties present evidence before the factfinder, however limited (there being no requirement that such proof include medical evidence), an appellate court must apply the substantial evidence standard to the exclusion of review for capricious disregard. See Iacono, 155 Pa.Cmwlth. at 240,

624 A.2d at 816-17.⁴ According to Judge Friedman, Employer's presentation of factual testimony concerning the nature of Claimant's job duties removed the matter from the purview of capricious disregard review. Judge Friedman also...