Rajavongsack v. Workers' Compensation Appeal Board
| Decision Date | 26 September 2003 |
| Docket Number | NO. 89 C.D. 2003.,89 C.D. 2003. |
| Parties | Thomas Rajavongsack, Petitioner v. Workers' Compensation Appeal Board (Yuasa, Inc.), Respondent. |
| Court | Pennsylvania Commonwealth Court |
BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES R. KELLEY, Senior Judge.
OPINION NOT REPORTED
Thomas Rajavongsack (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) which affirmed the decision of a workers' compensation judge (WCJ) denying Claimant's claim petition. We affirm.
On May 31, 2000, Claimant filed a claim petition alleging that he sustained a herniated cervical disc and right upper extremity pain and numbness as a result of lifting and dropping lead plates into an acid tank in mid-January 2000 while in the course and scope of his employment with Yuasa, Inc. (Employer) as a laborer. In response, Employer filed an answer denying the allegations. Hearings before a WCJ ensued.
In support of the claim petition, Claimant testified and presented the deposition testimony of Richard A. Close, M.D. In opposition to the claim petition Employer presented the deposition testimony of Harold J. Einsig, M.D., S. Ross Noble, M.D., and Anne McCaulley, R.N.
Claimant testified that his job duties as a dropper in the formation department required him to carry stacks of lead plates and insert them into an acid tank. In mid-January 2000, while lifting a stack of plates that weighed between forty and sixty pounds, Claimant developed pain which went from his neck down into his last two fingers of his right hand. Claimant continued to work but had to stop some time in March 2000 due to the pain. Claimant's pain decreased while he was off work. Claimant returned to his pre-injury position in April 2000, but his pain increased and he ceased working in early May 2000.
Dr. Close, a board certified neurosurgeon, testified that he began treating Claimant on March 27, 2000. Based upon Claimant's history, physical examination and a review of diagnostic studies, Dr. Close diagnosed Claimant with degenerative disc herniations at C5-6 and C6-7. Dr. Close opined that repetitive lifting at work aggravated Claimant's herniated discs, resulting in right arm pain and weakness. As of April 19, 2000, Dr. Close released Claimant to return to work without restrictions because Claimant's condition had improved. Following an examination of Claimant on May 2, 2000, Dr. Close opined that Claimant aggravated his condition and restricted Claimant from returning to work for Employer.
In opposition thereto, Dr. Einsig, a board certified physiatrist who began treating Claimant on February 7, 2000, testified that MRIs performed on Claimant's cervical spine revealed diffuse degenerative disc disease from C2 to C7 with no acute disc herniations at C5-6, C6-7 or C7-T1. Dr. Einsig testified that these degenerative disc changes were not caused by the performance of Claimant's job duties and that any pain Claimant is experiencing is due to his degenerative disc disease. Dr. Einsig testified that in the absence of a specific trauma, such as a fall, Claimant's job duties could not have caused his right upper extremity problems.
Dr. Noble, a board certified physiatrist, diagnosed Claimant with a brachial plexus problem with C8 nerve root involvement which is causing severe weakness and loss of control of his right hand. With regard to Claimant's cervical spine, Dr. Noble testified that an MRI revealed severe disc degeneration at C5-6 and C6-7. Dr. Noble testified that that the Claimant's duties as a dropper did not involve sufficient stress to cause or aggravate his brachial plexus condition or his degenerative disc disease.
Ms. McCaulley, an Occupational Health Nurse for Employer, testified that, on January 31, 2000, Claimant reported that he was experiencing weakness and numbness in his right arm and hand and pain radiating up into his neck. Ms. McCaulley testified that Claimant told her the pain was not work-related and that his symptoms had persisted for at least one week.
Based upon the testimony and evidence presented, the WCJ found the testimony of Claimant and Dr. Close that Claimant sustained a work-related injury to be not credible. The WCJ found the testimony of Dr. Einsig and Dr. Noble to be credible, consistent and persuasive that Claimant did not sustain a work-related injury in January 2000 to his neck or right upper extremity or any aggravation-type injury in the course and scope of his employment. The WCJ also credited the testimony of Ms. McCaulley. The WCJ concluded that Claimant failed to meet his burden of proving that he sustained a work-related injury in January 2000. By decision dated December 12, 2001, the WCJ denied Claimant's claim petition. Claimant appealed the WCJ's decision to the Board, which affirmed. Claimant then filed the instant petition for review with this Court.1 Claimant raises the following questions for our review:
1. Should the opinions and diagnosis of Employer's expert witness, Dr. Noble, be disregarded and not considered by the factfinder when Dr. Noble offered opinions in his deposition testimony not covered in his reports?
2. Does the failure of the board-appointed stenographer to provide Claimant with the June 29, 2001 and July 9, 2001 transcripts in this case because of the failure of Claimant's attorney's clients to pay invoices in unrelated cases violate equal protection and due process under the constitutions of the United States and Pennsylvania?
3. Has Claimant proven by sufficient and persuasive evidence the requirements to recover under the Workers' Compensation Act2 by showing credible evidence that Claimant suffered an aggravation of a prior medical condition caused by his job duties?
4. Did Employer try to intentionally mislead the factfinder in bad faith as to the nature of Claimant's job functions as a dropper?
5. Is Employer entitled to a credit for workers' compensation benefits owed to Claimant for "short-term disability" from February 26, 2000 through August 29, 2000?
As a prefatory matter, we must address Employer's contentions that Claimant failed to preserve these issues in his petition for review. Rule 1513 of the Pennsylvania Rules of Appellate Procedure sets forth the required contents of a petition for review. A petition for review must contain "a general statement of the objections to the order or other determination." The statement of objections is deemed to include "every subsidiary question fairly comprised therein." Pa. R.A.P. 1513.
In Claimant's Petition for Review, Claimant objected to the Board's determination on the following grounds:
a. The Board erred as a matter of law and abused its discretion in affirming the decision of the [WCJ]'s Decision to decline Petitioner's Workers' Compensation Benefits;
b. The Board failed to rule on numerous issues before it on appeal and those issues have not been addressed;
c. Petitioner incorporates all exceptions, objections, issues and arguments previously presented to the Board herein inclusive as fully as if the same were herein set forth at length.
(Emphasis added). Upon reviewing the multiple exceptions presented to the Board, 22 to be exact, Claimant incorporates by reference yet another document — his proposed findings of fact filed with the WCJ. Claimant did not include a copy of the exceptions or the proposed findings of fact in the reproduced record filed with this Court. Upon Employer's assertion that the issues were waived, Claimant failed to respond with a reply brief to specify where in the record the issues have been preserved.
We caution counsel that the role of an appellate court is to review and determine issues properly presented and briefed, not to conduct a scavenger hunt to determine if the issues have been properly preserved. Such a hunt amounts to a waste of this Court's time and resources. That said, upon review of the original record and the exceptions filed with the Board, we conclude that all of Claimant's issues have been adequately preserved.3
Employer also requests that this Court strike certain items contained in Claimant's reproduced record. An appellate court may only consider evidence that is of record, duly certified and transmitted by the Board. Pa. R.A.P. 1951(b); Anam v. Workmen's Compensation Appeal Board (Hahnemann), 537 A.2d 932 (Pa. Cmwlth. 1988). If a party wishes to rely upon documents that were not submitted prior to the close of the record, the party must request that those documents be certified by the Board. Steglik v. Workers' Compensation Appeal Board (Delta Gulf Corporation), 755 A.2d 69, 74 n. 3 (Pa. Cmwlth.), petition for allowance of appeal denied, 564 Pa. 720, 764 A.2d 1075 (2000).
Herein, Claimant has included letters and deposition testimony in the reproduced record that were not admitted into evidence by the WCJ prior to the close of the record. Reproduced Record (R.R.) at 372a-374a, 480a-485a. Claimant did not request the certification of these documents by the Board. As a result, these documents are not part of the record in this case and are therefore stricken from this Court's review.
Turning now to the issues raised by Claimant, Claimant contends that the opinions and diagnosis of Employer's expert witness, Dr. Noble, were not covered in his reports and should, therefore, be disregarded. We disagree.
In support of his position, Claimant relies upon Rule 4003.5 of the Pennsylvania Rules of Civil Procedure. Rule 4003.5(c) provides:
To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings under subdivision (a)(1) or (2) of this rule, the direct testimony of the expert at the trial may not be inconsistent with or go beyond the fair scope of his or her testimony in the discovery proceedings as set forth in the deposition, answer to an...
To continue reading
Request your trial