Opinion
No. 534 C.D. 2012
09-14-2012
Harold Zimmerman, Petitioner v. Workers' Compensation Appeal Board (Aqua Spec Builders), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Harold Zimmerman (Claimant), pro se, petitions for review of the February 24, 2012 Order (February 2012 Order) of the Workers' Compensation Appeal Board (Board) denying his Petition for Rehearing (Rehearing Petition) seeking reversal of a Workers' Compensation Judge's (WCJ) decision granting, in part, and denying, in part, his Claim Petition. The WCJ found that Claimant sustained a work-related injury, but failed to prove work-related disability as a result of this injury; therefore, the WCJ suspended Claimant's wage loss benefits as of the date of the injury. On appeal, Claimant argues that the Board should have granted his Rehearing Petition because he was represented before the WCJ by incompetent, and now disbarred, counsel who failed to obtain and introduce into the record certain medical evidence supporting Claimant's Claim Petition.
By Order dated June 29, 2012, this Court granted Claimant's unopposed motion to be excused from filing a reproduced record and directed that this matter proceed on the original record.
On March 9, 2012, Claimant initially petitioned this Court for review of the Board's March 15, 2011 Order affirming the WCJ's decision on the merits, the Board's September 19, 2011 Order denying Claimant's first Rehearing Petition, and the Board's February 24, 2012 Order at issue in this appeal. In response, Aqua Spec Builders (Employer) filed a Motion to Quash/Dismiss the Petition for Review as untimely. Upon consideration, we granted the uncontested motion, in part, and quashed, as untimely, Claimant's appeals from the Board's March 15, 2011 and September 19, 2011 Orders. We denied Employer's motion with respect to Claimant's timely appeal from the Board's February 24, 2012 Order.
Claimant also argues that, by denying him wage loss benefits, the WCJ ignored his disability certificates and Employer's testimony, accepted irrelevant medical information, credited a "druggie," and went beyond the scope of the Board's original remand order. However, this argument goes to the merits of the WCJ's decision and the Board's March 15, 2011 Order affirming that decision. Since Claimant's appeal from the Board's March 15, 2011 Order has been quashed as untimely, we cannot consider Claimant's arguments.
The extensive procedural history of this matter, which includes two remands to the WCJ, is as follows. Claimant filed a Claim Petition on June 12, 2003, alleging that he sustained work-related injuries in an automobile accident on August 2, 2002, while employed by Aqua Spec Builders (Employer). Hearings ensued before the WCJ where it appears that Claimant presented the testimony of Stephen C. Longenecker, M.D., a board-certified orthopedic surgeon, who examined Claimant in September 2004 on Employer's behalf. Based on the evidence presented, the WCJ found that Claimant established that he sustained a work-related injury, but failed to prove a loss of earnings or work-related disability due to his injury. Both Employer and Claimant appealed to the Board, which remanded the matter to the WCJ for further findings as to whether Claimant suffered a loss of earnings and whether an award of wage loss benefits was appropriate. (Board's February 24, 2012 Decision (February 2012 Decision) at 2; Board's March 15, 2011 Decision (March 2011 Decision) at 6.)
To sustain an award of benefits, a claimant has the burden to establish that he "suffered a work-related injury and that this injury resulted in" disability. Ruhl v. Workmen's Compensation Appeal Board (Mac-It Parts, Inc.), 611 A.2d 327, 329 (Pa. Cmwlth. 1992). During the pendency of the claim petition, the claimant must demonstrate "that the injury continues to cause disability." Ohm v. Workmen's Compensation Appeal Board (Caloric Corporation), 663 A.2d 883, 886 (Pa. Cmwlth. 1995).
On this first remand, the WCJ took additional evidence consisting of a medical report authored by John F. Perry, M.D., a board-certified orthopedic surgeon, who examined Claimant in April 2004 on Claimant's behalf. In her remand decision, the WCJ found that Claimant failed to establish a loss of earnings or earning power as a result of his work-related injury. Accordingly, the WCJ again granted the Claim Petition, but suspended wage loss benefits as of the date of Claimant's injury. Both Employer and Claimant appealed this first remand decision to the Board, which remanded the matter a second time to the WCJ for clarification with respect to Claimant's ability or lack of ability to perform his pre-injury job. (February 2012 Decision at 3; March 2011 Decision at 7.)
On the second remand, Claimant presented the testimony of David Simons, D.O., a board-certified anesthesiologist and pain management specialist, who initially examined Claimant in December 2004. Employer presented the testimony of Dr. Longenecker, who reexamined Claimant on Employer's behalf in July 2009. In her second remand and final decision, the WCJ found that: (1) Claimant could perform his pre-injury job; (2) Claimant's medical expert did not establish a nexus between Claimant's work-related injury and his opinion that Claimant not engage in heavy work; and (3) any restrictions imposed upon Claimant were due to non-work-related issues. The WCJ again granted the Claim Petition and suspended wage loss benefits as of the date of Claimant's injury. Both Employer and Claimant appealed to the Board, which affirmed the WCJ's decision finding that Claimant failed to prove a work-related disability. (February 2012 Decision at 3-4; March 2011 Decision at 7-8.) The Board determined that "Dr. Simons' testimony did not unequivocally attribute any loss of earning power to Claimant's work-related lumbar strain/sprain; at best, the work-related injury was one factor of three which arguably affected Claimant's ability to do his pre-injury job." (March 2011 Decision at 8.) The Board also determined that "Dr. Simons' recommendation that Claimant refrain from engaging in heavy lifting on a regular basis is vague, and thus equivocal." (March 2011 Decision at 8-9 (footnote omitted).) As noted herein, Claimant did not file a timely appeal with this Court from the Board's March 2011 Decision.
On November 30, 2011, the Board received Claimant's Rehearing Petition. Upon review, the Board denied the Rehearing Petition because Claimant failed to demonstrate "the need to reopen the record due to newly discovered evidence not available during the development of the evidentiary record and there has been no misapplication of the law due to subsequent court decisions." (February 2012 Decision at 5.) The Board determined further that the WCJ's findings were supported by substantial, competent evidence and the WCJ's decision comported with applicable law. Therefore, the Board discerned no error of fact or law upon which to reopen the record. (February 2012 Decision at 5-6.) Claimant now petitions this Court for review of the Board's February 2012 Order denying his Rehearing Petition.
It is undisputed that the November 30, 2011 Rehearing Petition was Claimant's second Rehearing Petition filed with the Board. Although not in the record, it appears that Claimant filed his first Rehearing Petition with the Board on August 9, 2011, which the Board denied by Order circulated on September 19, 2011. (February 2012 Decision at 4.) Claimant did not file a timely appeal with this Court from the Board's September 19, 2011 Order. See Footnote 2, supra.
The Board acknowledged the documents submitted by Claimant purporting to show that his previous counsel in these proceedings has been disbarred, and the Board queried whether Claimant possessed "remedies outside the jurisdiction of this Board." (February 2012 Decision at 4 n.3, 6 n.4.)
Section 426 of the Pennsylvania Workers' Compensation Act (Act) governs rehearing petitions and provides, in relevant part:
Act of June 2, 1915, P.L. 736, added by Section 6 of the Act of June 26, 1919, P.L. 642, as amended, 77 P.S. § 871.
The board, upon petition of any party and upon cause shown, may grant a rehearing of any petition upon which the board has made an award or disallowance of compensation or other order or ruling, or upon which the board has sustained or reversed any action of a [WCJ]; but such rehearing shall not be granted more than eighteen months after the board has made such award, disallowance, or other order or ruling, or has sustained or reversed any action of the [WCJ].77 P.S. § 871. Thus, the Board has broad powers to grant a rehearing "'when justice requires.'" Puhl v. Workers' Compensation Appeal Board (Sharon Steel Corp.), 724 A.2d 997, 1001 (Pa. Cmwlth. 1999) (quoting Cudo v. Hallstead Foundry, Inc., 517 Pa. 553, 557-58, 539 A.2d 792, 794 (1988)). "The purpose of granting rehearing in [workers'] compensation cases is to allow a party to present newly-discovered, non-cumulative evidence, and will not be granted to permit the party to strengthen weak proofs already presented." Paxos v. Workmen's Compensation Appeal Board (Frankford-Quaker Grocery), 631 A.2d 826, 831 (Pa. Cmwlth. 1993). "This Court may not disturb a determination to grant or deny a rehearing absent a clear abuse of discretion." City of Philadelphia v. Workers' Compensation Appeal Board (Harvey), 994 A.2d 1, 5 n.4 (Pa. Cmwlth. 2010).
Upon review, we conclude that the Board did not abuse its discretion by denying Claimant's Rehearing Petition. As the Board correctly points out, Claimant does not set forth in the Rehearing Petition any newly-discovered, non-cumulative evidence that was not available to him during the extensive proceedings before the WCJ. While we empathize with Claimant regarding his allegations of incompetent counsel, the record certified to this Court does not support Claimant's assertions. For example, the transcripts of the hearings before the WCJ are not part of this record on appeal. Moreover, it appears from the Board's February 2012 and March 2011 Decisions that, despite Claimant's allegation that his incompetent counsel failed to submit relevant medical evidence, Claimant did, in fact, submit additional medical evidence into the record to support his Claim Petition during the second remand. However, the WCJ did not credit this medical evidence that he suffered a loss of earning power as a result of his work-related injury. (February 2012 Decision at 3.) In addition, the cover sheet accompanying the Board's March 2011 Decision on the merits of Claimant's appeal from the WCJ's second remand decision reveals that Claimant was represented by new counsel at some point in these proceedings other than counsel Claimant alleges was incompetent.
This Court may take judicial notice of our Supreme Court's April 22, 2009 Order accepting Claimant's previous counsel's resignation from the Bar of the Commonwealth of Pennsylvania and ordering that counsel be disbarred on consent. See Conchado v. Department of Transportation, Bureau of Driver Licensing, 941 A.2d 792, 794 (Pa. Cmwlth. 2008) ("[A] court in appropriate circumstances may take judicial notice of court records."). However, Claimant has attached documentation to his brief in support of this appeal purporting to show: (1) the reasons why his previous counsel was disbarred; and (2) that the WCJ erred by not granting him wage loss benefits. However, this documentation is not part of the record certified to this Court by the Board. Accordingly, we may not consider the documents attached to Claimant's brief. It is well settled that an appellate court cannot consider anything which is not part of the certified record in a case. Smith v. Smith, 637 A.2d 622, 623-24 (Pa. Super. 1993).
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 Company v. Workmen's Compensation Appeal Board (Valsamaki), 593 A.2d 921, 924 (Pa. Cmwlth. 1991). --------
Accordingly, we are constrained to affirm the Board's February 2012 Order denying Claimant's Rehearing Petition.
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RENÉE COHN JUBELIRER, Judge ORDER
NOW, September 14, 2012, the February 24, 2012 Order of the Workers' Compensation Appeal Board denying the Petition for Rehearing filed by Harold Zimmerman, pro se, is AFFIRMED.
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RENÉE COHN JUBELIRER, Judge