Opinion
No. 1623 C.D. 2014
05-06-2015
Roy Pittman, Petitioner v. Workers' Compensation Appeal Board (Otto Cupler Torpedo Co., Inc.), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Roy Pittman (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board). The Board affirmed a decision of a Workers' Compensation Judge (WCJ), granting the termination petition filed by Claimant's employer, Otto Cupler Torpedo Co., Inc. (Employer). We affirm the Board's order.
On May 27, 2010, Claimant sustained work-related injuries identified in a Notice of Compensation Payable as a cervical and thoracic sprain/strain and head concussion. On August 1, 2011, Employer filed a termination petition, asserting that Claimant had fully recovered from his work-related injuries.
Before the WCJ, Claimant testified that he was working as a blaster for a gas company, riding in a "Kubota side by side, four wheel drive utility vehicle," when the driver of the vehicle lost control and the vehicle rolled back down a steep hill, eventually rolling and hitting a tree and a rock. (Reproduced Record (R.R.) at 20a.) The driver fell on top of him. He believed he was initially unconscious for anywhere from one minute to five minutes, and that he became unconscious again after the driver assisted him in getting out of the rolled vehicle. (R.R. at 22a-23a.) Claimant testified that coworkers took him to his truck and that he drove himself to the hospital, where he was examined, x-rays were performed, and he received a slip directing him to take the next day off from work. (R.R. at 24a.) Claimant testified that he returned to work the next day, but requested that he "not push it." (R.R. at 25a.) Claimant described feeling "sore all over" and "a little groggy" when he returned to work. (Id.)
Sometime in early June 2010, he worked with a machete at home. When he awoke the next morning, his "hand didn't work any longer [and his] arm didn't work. [I] couldn't move anything." (R.R. at 29a.) Claimant testified that he had feeling in his arm, but that he could not move his fingers at all. (Id.) Claimant also testified that he "couldn't do certain things without noticing [he] had to . . . . I guess they're called motor skills or whatever." (R.R. at 30a.) He experienced occasional dizziness and concentration problems. (Id.) In addition to the problems he had with his right arm, he had a problem with the middle of his back having an "itch" or peculiar feeling. (R.R. at 31a.) Claimant testified that following a visit to a local hospital on June 11, 2010, he obtained physical therapy for his hand, including water therapy. (R.R. at 33a-34a.)
The hospital records from the June 11, 2010 visit indicate that Claimant provided the hospital staff with information regarding his accident, but the treating physician opined that Claimant's "symptoms [are] suggestive of [transient ischemia attack.]" (R.R. at 590a.) The hospital records also indicate that a CAT scan was performed. A form the hospital gave to Claimant provided that "[t]he doctor thinks your symptoms may be due to: Transient Ischemic Attack (TIA)." (R.R. at 592a.) Claimant testified that he began seeing his chiropractor, Adam Middleton, D.C., approximately ten days after the accident and saw his family doctor, John E. Balmer, D.O., on June 14, 2010. (R.R. at 26a-27a.) Claimant returned to the hospital on August 11, 2010, during which a second CAT scan was performed. Thereafter, on August 17, 2010 and October 19, 2010, two EMG studies were conducted. On June 2, 2011, a brain MRI was conducted.
In support of its termination petition, Employer submitted an independent medical examination (IME) report prepared by John Bartlett Talbott, M.D., who examined Claimant, and Dr. Talbott's deposition testimony. In his IME report, Dr. Talbott opined that Claimant had recovered from all of the identified work injuries. (R.R. at 610a.) With regard to the two EMG tests, Dr. Talbott opined that the first EMG, performed on August 17, 2010, "revealed bilateral chronic carpal tunnel syndrome, along with the possibility of brachial plexopathy," and that the second EMG, performed on October 19, 2010, "demonstrated considerable interval improvement" and localized changes "to the right ulnar nerve." (Id.) Dr. Talbott opined, however, that "[o]n examination . . . I [found] no evidence of ulnar neuropathy." (Id.) Dr. Talbott noted that Claimant indicated to hospital staff on June 11, 2010, that he did not experience numbness or weakness immediately after the accident, but rather, that he began to experience those conditions approximately four days before he went to the hospital. Dr. Talbott noted that although the CAT scan performed on that date at the hospital did not indicate that Claimant had sustained a stroke, (R.R. at 524a), hospital staff diagnosed Claimant with likely having experienced a transient ischemic attack—"a warning of stroke." (R.R. at 522a.) Dr. Talbott opined that Claimant's pre-existing, non-work-related conditions, which include diabetes mellitus, hypertension, and tobacco abuse, placed him at risk for strokes. (R.R. at 610a.) Dr. Talbott concluded these conditions caused Claimant to have a series of strokes, and that the conditions and the strokes, rather than Claimant's work incident, are the cause of Claimant's present complaints, including lightheadedness, lack of balance, and visual impairment. (Id.)
Employer also submitted the testimony of Claimant's employer, Richard Tallini. Mr. Tallini testified that he communicated with Claimant when Claimant was on his way to the hospital following the accident. Mr. Tallini testified that Claimant denied being knocked out following the accident. (R.R. at 79a; 93a.) Mr. Tallini testified that Claimant returned to work the next day and continued his job responsibilities throughout the completion of that job and one that existed between June and July 2010. (R.R. at 80a-82a.) Mr. Tallini testified that he spoke with Claimant on the phone on August 8, 2010, and during that conversation Claimant told Mr. Tallini that he had worked in his yard with a machete for many hours, that he had vomited and was dizzy that night, and awoke feeling that his right arm did not work. (R.R. at 85a-86a.)
Employer submitted the testimony of Mr. Watkins. He testified that he did not work with Claimant at the work site where the accident occurred, but when he saw Claimant that night, Claimant only indicated that he felt sore. (R.R. at 103a, 106a-08a.) Claimant was able to work the next day. (R.R. at 107a-08a.) Mr. Watkins testified that he helped Claimant put on a shirt on one occasion because Claimant was having difficulty using his arm. (R.R. at 113a-15a.) Additionally, Employer offered the testimony of another co-worker, Leroy Thompson, whose testimony was similar to Mr. Watkins' testimony, except that he testified that he never assisted Claimant with dressing.
Claimant submitted the deposition testimony of his primary care provider, Dr. Balmer, and his chiropractor, Dr. Middleton. Dr. Balmer testified that when he examined Claimant on June 10, 2010, Claimant described numbness in his right arm on June 6, 2010, and some numbness in his right leg and trunk. (R.R. at 204a.) Claimant also told Dr. Balmer that he was experiencing visual disturbances and was having difficulty writing. (Id.) He also had been experiencing "blurred vision, some head pain, sensory changes, and some difficulty concentrating and nausea" since the accident, but he was feeling comparatively better. (R.R. at 205a.) Dr. Balmer testified that he believed that, at the time of his examination, Claimant had post-concussive syndrome and Claimant's conditions were not caused by a stroke or a TIA. (R.R. at 206a-07a.) Dr. Balmer testified that when he saw Claimant in July 2010, Claimant indicated that his vision, headaches, and back pain were improving. (R.R. at 209a.) Claimant visited his office again on August 3, 2010, complaining that the right side of his face was numb and his right arm was falling asleep. (R.R. at 210a-11a.) Claimant told Dr. Balmer that his facial numbness had gone away for about a month, but was no longer transient and had lasted three days. (R.R. at 211a.) Dr. Balmer testified that during that visit he diagnosed Claimant as having somatic dysfunction, which he described as "tissue texture changes . . . [a]symmetry, tenderness and restriction of motion," which warrants osteopathic manipulation. (R.R. at 212a-13a.)
Dr. Balmer testified that Claimant returned to his office on August 11, 2010, and Claimant was seen by a certified nurse practitioner. (R.R. at 213a.) Claimant complained at that time of having developed a "fuzzy" feeling, that he had vomited, and suffered an inability to move his right arm, raise his right arm, and grip his hand. (Id.) According to Dr. Balmer's testimony, the nurse practitioner concluded that Claimant had a stroke at some point and sent him to the hospital. Dr. Balmer reviewed reports from the tests performed at the hospital and concluded that the incident was not stroke-related, but rather the result of a peripheral injury in the brachial plexus or peripheral nervous system. (R.R. at 215a.) Dr. Balmer saw Claimant again on August 24, 2010, and Claimant indicated that the numbness was better, his memory was better, but he seemed to have some symptoms of post-concussive syndrome, including headaches. (R.R. at 216a-17a.)
The records from Claimant's visit to the hospital visit on August 11, 2010, indicate that "[t]he doctor thinks your symptoms may be due to: Neuropraxia R Arm." (R.R. at 602a.) The CAT scan that was performed at the hospital, however, provides the following information: "There are old lacunar infarcts in basal ganglia greater on left side than right. Changes appear old but are new compared to 06/11/10 [CAT scan]." (R.R. at 604a.)
Dr. Balmer testified regarding the August 17, 2010 EMG, the results of which indicated that Claimant may have had on-going carpel tunnel syndrome that might have caused Claimant's symptoms of weakness on the right side or that Claimant might have a problem with his brachial plexus, which is a condition related to the peripheral nervous system. (R.R. at 221a-22a.) Dr. Balmer opined that brachial plexus conditions are generally triggered by traumatic events, such as the trauma Claimant experienced in the accident. (R.R. at 222a-23a.) Dr. Balmer testified that his review of a later EMG indicated that Claimant's nerve issue is related to the ulnar nerve rather than the brachial plexus. (R.R. at 231a-32a.) While Dr. Balmer testified that Claimant continues to suffer from weakness and lack of mobility on his right side and post-concussive syndrome, he did not testify in any detailed manner regarding continued headaches. Rather, his testimony focused on Claimant's right side issues. (R.R. at 238a-39a.) Dr. Balmer did, however, testify that in his opinion Claimant suffered a traumatic work injury that "resulted in a peripheral nerve injury of his right upper extremity." (R.R. at 242a-43a.) Further, Dr. Balmer testified that Claimant "had a post-concussive—or suffered a concussion at that time, and some of his symptoms are related to post-concussive syndrome." (R.R. at 243a.)
With regard to the results of the June 2011 MRI study of Claimant's brain, which indicate that Claimant had suffered some small strokes, Dr. Balmer opined that those events did not cause Claimant's present complaints:
[T]he small vessel ischemic changes are not consistent with any of his problems . . . . Especially in the bilateral ganglia lacunar infarcts, and the lacunar infarcts involving white matter of the left parietal lobe, I do not believe are consistent with his right upper extremity problems. The area of probable occipital lobe, with the corresponding profusion defect may very well indicate a stroke in the proximity of June—late May, early June of 2011.(R.R. at 244a.)
On cross-examination, Employer's counsel asked Dr. Balmer about the report relating to the June 2011 MRI study. Dr. Balmer acknowledged that the physician whose MRI report he reviewed opined that the results indicate that Claimant might have multiple sclerosis. (R.R. at 258a.) When asked about the symptoms of multiple sclerosis, Dr. Balmer testified that the symptoms include visual disturbances, lack of coordination of multiple body areas, difficulty walking, and performing daily activities. (R.R. at 258a.) Dr. Balmer also testified on cross-examination that he was unaware whether the person who performed the EMG in August 2010 was a physician or was certified to evaluate the results. (R.R. at 260a.) In fact, the person who evaluated the results was a physical therapist, who could not localize the precise area of nerve impairment. (R.R. at 259a-60a.)
While the diagnostic studies appear to be imprecise, a November 12, 2010 letter from Donald L. Rezek, M.D., to Dr. Balmer references Dr. Rezek's impression that Claimant's pre-existing carpel tunnel syndrome "may be . . . contributing to some of [Claimant's] other symptoms." (R.R. at 307a.) Dr. Rezek sent other letters to Dr. Balmer, including one dated June 9, 2011, in which he states that "[Claimant]'s MRI did show evidence of bilateral ganglion ischemia. He did have lacunar infarction with the white matter of the left parietal lobe. There is also an area of probable subacute infarction involving the left posterior." (R.R. at 312a.) In a June 23, 2011 letter, Dr. Rezek confirmed the evidence of strokes and also therein mentioned the possibility that Claimant could have multiple sclerosis. (R.R. at 313a.)
Claimant also submitted the deposition testimony of Dr. Middleton. Dr. Middleton opined that Claimant suffered a sublaxation in his cervical spine that affected his brachial plexus as a result of his work accident and that "post-concussive syndrome was part of the original diagnosis." (R.R. at 406a.) Dr. Middleton also acknowledged that he did not review Claimant's test results, but rather accepted Claimant's description of the results as indicating a brachial plexus issue. (R.R. at 410a.) Claimant also sought to have the WCJ admit into evidence a report of Michael Horowitz, M.D., but the WCJ sustained Employer's hearsay objection to the admission of the report.
The WCJ did not find credible Claimant's testimony that he had difficulties using his right arm immediately after the work accident. Instead, based upon the credited testimony of Mr. Tallini, Mr. Watkins, and Mr. Thompson, the WCJ determined Claimant was able to perform his work duties after the accident. Additionally, the WCJ found Dr. Balmer's testimony not credible because Dr. Balmer's testimony failed to acknowledge that the possible nerve injury was to the ulnar nerve rather than the brachial plexus and because Dr. Balmer rejected the opinion of Dr. Rezek that Claimant may have multiple sclerosis. Additionally, the WCJ found insufficient Dr. Balmer's explanation for his belief that Claimant's right-sided symptoms are caused by a brachial plexus injury. (WCJ Decision, Finding of Fact (F.F.) 16(f).) The WCJ rejected Dr. Middleton's opinions because he did not review any of Claimant's diagnostic or medical records. (Id., F.F. 16(g).)
The WCJ found Dr. Talbott's opinion credible and accepted his opinion that Claimant has fully recovered from his work injuries. The WCJ accepted Dr. Talbott's view that Claimant's right-sided symptoms are related to strokes Claimant sustained and to diabetes-related mononeuritis multiplex, a condition that is not related to work or Claimant's work injuries. Thus, the WCJ concluded that Claimant's right arm symptoms are not related to his work accident and that the work injury does not include a brachial plexus injury or post-concussive syndrome.
Claimant appealed the WCJ's decision, and the Board affirmed, concluding that substantial evidence supports the WCJ's factual findings and that the WCJ issued a reasoned decision. In this appeal, Claimant raises the following issues: (1) whether substantial evidence supports the WCJ's finding that the condition of Claimant's right arm is attributable to a stroke rather than to an alleged nerve injury of Claimant's brachial plexus related to his work injury; (2) whether the WCJ erred in concluding that Claimant is fully recovered from his work-related injuries where his family physician and his chiropractor testified that Claimant sustained a work-related brachial plexus injury involving the ulnar nerve; (3) whether the WCJ erred in excluding, and, therefore, failing to consider, the medical report of Michael Horowitz, M.D., on hearsay grounds, where that report indicated Dr. Horowitz's opinion that a stroke was not the cause of Claimant's right arm condition; and (4) whether the WCJ mischaracterized Claimant's testimony and the testimony of Claimant's co-workers concerning the onset and worsening of Claimant's symptoms, such that the WCJ erred in concluding that Claimant's right arm problem is related to a non-work-related stroke rather than a work-related ulnar nerve injury involving Claimant's brachial plexus.
Our review is limited to considering whether substantial evidence supports necessary factual findings, and whether an error of law or violation of constitutional rights was committed below. 2 Pa. C.S.§704.
Claimant essentially argues that the WCJ should have found that Claimant's work-related injuries include a nerve injury near his brachial plexus and post-concussive syndrome. Claimant contends that these alleged injuries are so closely related to the cervical and thoracic sprain/strain and head concussion injuries identified in the NCP, that Claimant bore no burden to establish such injuries or that they are work-related. Rather, Claimant contends that Employer bore a burden to prove that Claimant has fully recovered from the alleged nerve injury and post-concussive syndrome as well as from the specific injuries listed in the NCP.
The WCJ concluded as a matter of law that Claimant did not sustain injuries as a result of his work accident in the nature of a brachial plexus injury or post-concussive syndrome and that Claimant's right arm symptoms are unrelated to his work injury. Claimant did not file a review petition seeking to have such injuries added to the Notice of Compensation Payable; nevertheless Claimant argues that the WCJ erred in failing to grant his claim petition. As Claimant does not direct us to any place in the record where he made such a request, we assume that Claimant never specifically filed such a petition nor specifically requested the WCJ to grant such a petition. Rather, Claimant must be relying upon the powers of a WCJ to amend an NCP even in the absence of a formal request when the evidence supports such action. See Section 413 of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 771.
Employers bear the burden in a termination petition to prove by competent medical evidence that a claimant has fully recovered from a work injury or injuries identified in a notice of compensation payable. City of Philadelphia v. Workers' Comp. Appeal Bd. (Butler), 24 A.3d 1120, 1124 (Pa. Cmwlth. 2011), appeal denied, 37 A.3d 1197 (Pa. 2012). As noted above, however, Section 413(a) of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 771, provides that a WCJ may amend an NCP at any time during litigation where the evidence submitted establishes "that the injury a claimant sustained in the initial work incident is different or more expansive that that identified in the NCP." Harrison v. Workers' Comp. Appeal Bd. (Auto Truck Transport Corp.), 78 A.3d 699, 702 (Pa. Cmwlth. 2013), appeal denied, 92 A.3d 812 (Pa. 2014). A claimant alleging that an NCP fails to reflect all work-related injuries generally bears the burden to demonstrate that a condition is work-related. Namani v. Workers' Comp. Appeal Bd. (A. Duie Pyle), 32 A.3d 850, 856 (Pa. Cmwlth. 2011), appeal denied, 47 A.3d 849 (Pa. 2012).
The Supreme Court has held, however, that when a disability arises after the issuance of an NCP and the disability is "related" to one of the injuries identified in the NCP, an employer bears the burden to show that the cause of the disability is not related to the identified work-related injuries. Gumro v. Workmen's Comp. Appeal Bd. (Emerald Mines Corp.), 626 A.2d 94 (Pa. 1993). Our Supreme Court's decision in Cinram Manufacturing, Inc. v. Workers' Compensation Appeal Board (Hill), 975 A.2d 577 (Pa. 2009), clarified the allocation of burdens between parties when a claimant alleges that he remains disabled for compensation purposes based upon an injury that is related to an identified work injury. In Harrison, we observed:
[I]n Cinram . . . the Supreme Court clarified the meaning of Gumro. Citing the "legitimate allocation to claimants of the burden to prove injuries which are not accepted by employers," the Supreme Court declined to disturb this Court's determination that an alleged herniated lumbar disc is an injury separate from an accepted lumbar strain. Where the injuries are separate, "the burden rests with claimants to establish the existence of additional compensable injuries giving rise to corrective amendments, regardless of the procedural context in which the amendments are asserted. In short, Cinram . . . squarely places the burden of proving additional injuries upon the claimant.Harrison, 78 A.3d at 705.
In Harrison, we concluded that the claimant, whose injury had been identified as a right ankle sprain in an NCP, bore the burden to demonstrate that additional injuries identified in the course of an employer-generated IRE, resulting from surgery performed for a pre-existing flat-foot deformity, were related to claimant's work injury. Additionally, the claimant contended that a fall he had taken down stairs following his ankle sprain that resulted in a broken leg was triggered by weakness occurring as a consequence of the work-related ankle sprain, such that the injury and disability arising therefrom should be compensated as work-related.
The claimant in Harrison argued that the employer had the burden to prove that the other alleged injuries were unrelated to claimant's work injury. As noted above, this Court referred to Cinram and held that the employer did not have the burden to prove that the injuries were unrelated. Nevertheless, the employer's "evidence proved that point," based upon the WCJ's acceptance of the testimony of the employer's medical witness that the claimant had fully recovered from the work sprain identified in the notice of compensation payable. Id. The WCJ found that the claimant "fell and broke his leg because of his congenital foot and ankle conditions, not because of the ankle sprain." Id. We held that "[b]ecause the WCJ rejected [the claimant's] evidence on this issue," the claimant failed to carry his burden of proof. Id.
In this matter, the WCJ made several key credibility determinations. First, the WCJ found Claimant's testimony not credible with regard to the onset of the problems on his right side. The WCJ rejected Claimant's testimony that his problems arose immediately following the accident, based in part upon the testimony of Claimant's employer and co-workers that Claimant stated he had soreness, but that he was able to perform his job. Additionally, the WCJ referred to Claimant's own testimony, indicating that he had problems after he did yard work.
In his brief, Claimant contends that the WCJ erred by mischaracterizing Claimant's testimony regarding his injury. Also, Claimant contends that the WCJ erred in relying upon the testimony of Claimant's co-workers, because neither Mr. Watkins nor Mr. Thompson actually worked during the day at the same locations. The WCJ, in summarizing Mr. Watkins' testimony, acknowledged this fact, but noted that Mr. Watkins shared a room with Claimant. The WCJ found credible Mr. Watkins' testimony that while Claimant mentioned some discomfort immediately after the accident, he continued working that job and accepted a second job for the months of June and July. The WCJ also found persuasive Mr. Watkins' testimony that Claimant only once asked him for help getting dressed but otherwise never complained regarding the condition of his right arm or indicated that he had any difficulty performing the duties of his job. (WCJ Decision, F.F. 5.) The WCJ, therefore, provided a reasoned explanation regarding her rejection of Claimant's description of his post-accident condition.
With regard to the expert medical evidence submitted, Claimant's allegations of error raise two issues—one involving the competency of Employer's medical evidence and the other involving the question of whether substantial evidence supports the WCJ's key findings. Claimant contends that Dr. Talbott did not "address Claimant's injuries to the ulnar nerve of the brachial plexus and continued complaints of pain, not just numbness." (Petitioner's Brief at 14-15.) Claimant also contends that Dr. Talbott failed to review two EMG studies of Claimant's right extremities, and, therefore, his alleged failure to explain the results renders his testimony not competent on those grounds.
In order to satisfy its burden in a termination petition, an employer must present unequivocal and competent medical evidence of the claimant's full recovery from his work-related injuries. Gillyard v. Workers' Comp. Appeal Bd. (Pa. Liquor Control Bd.), 865 A.2d 991, 995 (Pa. Cmwlth.) (en banc), appeal denied, 882 A.2d 1007 (Pa. 2005). For a medical expert's testimony to be competent to support factual findings regarding a Claimant's recovery from an identified work injury, the expert must acknowledge the identified work injuries. Elberson v. Workers' Comp. Appeal Bd. (Elwyn, Inc.), 936 A.2d 1199 (Pa. Cmwlth. 2007), appeal denied, 944 A.2d 752 (Pa. 2008). Dr. Talbott's IME report correctly identified Claimant's accepted work-related injuries as a concussion and cervical and thoracic strain, and Dr. Talbott opined in the IME report that Claimant has recovered from those injuries. Dr. Talbott also testified in his deposition that Claimant had recovered from his concussion and "soft tissue injuries to the cervical and thoracic spine." (R.R. at 534a-35a.) Additionally, Dr. Talbott testified unequivocally that he did not believe that Claimant suffered any additional injuries from the accident. (R.R. at 536a.) Further, Dr. Talbott testified that Claimant's stroke and the conditions of his right arm are unrelated to Claimant's work injury. (Id.) Because we conclude that Dr. Talbott's IME report and his deposition testimony are unequivocal and recognized Claimant's identified work injuries, we conclude that his testimony was both competent and sufficient to support the WCJ's factual findings regarding Employer's termination petition. Moreover, Dr. Talbott's testimony clearly rejected the suggestion that other conditions from which Claimant suffered following the accident are work-related. Claimant argues that the WCJ erred by failing to consider Dr. Balmer's and Dr. Middleton's testimony. The WCJ did not find that testimony credible. We may not disturb the WCJ's credibility determinations or reweigh the evidence on appeal. Bethenergy Mines, Inc. v. Workmen's Comp. Appeal Bd. (Skirpan), 612 A.2d 434, 437 (Pa. 1992). The presence of evidence in the record that might support different factual findings does not alter our review. Burrell v. Workers' Comp. Appeal Bd. (Philadelphia Gas Works), 849 A.2d 1282, 1288 (Pa. Cmwlth. 2004).
As to Claimant's contention that Dr. Talbott failed to review two EMG studies, as indicated in our summary of the testimony, Dr. Talbott did explain why the EMG studies did not convince him that Claimant's condition is related to brachial plexopathy. --------
Claimant also contends that the WCJ erred in concluding that a hearsay report generated by Dr. Horowitz did not corroborate the opinions of Dr. Balmer and Dr. Middleton, and, therefore, the WCJ erred in refusing to admit the report into evidence under our decision in Koppers v. Workmen's Compensation Appeal Board (Boyle), 536 A.2d 509 (Pa. Cmwlth. 1988), overruled in part on other grounds, Bell v. Workmen's Comp. Appeal Bd. (Gateway Coal Co.), 545 A.2d 430 (Pa. Cmwlth. 1988). Claimant, however, proposes a misapplication of the rule set forth in Koppers. In Koppers, we held that a WCJ may admit hearsay evidence over an objection, if the substance of the hearsay evidence is corroborated elsewhere in the record. This Court has since elaborated on the applicable rules regarding hearsay evidence. In Benson v. Workmen's Compensation Appeal Board (Haverford State Hospital), 668 A.2d 244 (Pa. Cmwlth. 1995), we explained that "properly objected to hearsay is not competent evidence and must be excluded from the record." Benson, 668 A.2d at 248. This rule is known as the Walker rule, which this Court adopted in Walker v. Unemployment Compensation Board of Review, 367 A.2d 366 (Pa. Cmwlth. 1976), and we have held the rule to be applicable to workers' compensation matters. Benson, 668 A.2d at 248 n.7. In Benson, we clarified the rule regarding objected-to hearsay as follows:
Employer additionally argues that under prior case law hearsay, even if objected to, may be considered if corroborated by other evidence for the "additional light it sheds on the matter." While Employer's argument would
be valid if Claimant had not objected to Employer's hearsay evidence, it is without merit under the facts of this case. A review of the cases relied upon by Employer reveals that the hearsay evidence at issue in those cases was either not objected to or was admissible under an exception to the hearsay rule. To the extent that any of the cases relied upon by Employer might suggest that objected to hearsay could be used as substantive evidence in an administrative proceeding, the Walker line of cases has clearly established that the use of hearsay is strictly limited to cases where there is both corroborating evidence and where no objection was made on the record.Benson, 668 A.2d at 248 n.8 (citations omitted). Although we found no fault with the administrative judge's decision in Koppers to admit such evidence, it does not follow that a WCJ's decision to refuse to admit hearsay evidence to which a party objects constitutes reversible error. That evidence simply could not be sufficient to support the findings that Claimant would have liked the WCJ to render, and the WCJ's decision in this case to refuse to admit the offered evidence does not constitute legal error.
Based upon the foregoing discussion, we affirm the Board's order.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 6th day of May, 2015, the order of the Workers' Compensation Appeal Board is AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge