Pennsylvania Uninsured Emp'rs Guar. Fund v. Workers' Comp. Appeal Bd., PICS Case No. 14-0294 (Pa. Commw. Feb. 12, 2014) McCullough, J. (14 pages).

COMMONWEALTH COURT

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SOCIAL SERVICES LAW

Workers' Compensation • Ongoing Disability • Substantial Evidence

Pennsylvania Uninsured Emp'rs Guar. Fund v. Workers' Comp. Appeal Bd., PICS Case No. 14-0294 (Pa. Commw. Feb. 12, 2014) McCullough, J. (14 pages).

Claimant presented substantial evidence of ongoing disability. Affirmed.

Claimant was tearing off a roof under employer's direction, when he fell from the roof and landed on a cement slab. Claimant suffered a seizure, was taken to the hospital, placed in a drug-induced coma and diagnosed with a skull fracture, seizures, and a left eye injury. Thereafter, claimant received treatment from a neurosurgeon and a psychologist. Claimant filed a claim petition seeking benefits from the Pennsylvania Uninsured Employers Guaranty Fund because employer was uninsured. Fund denied all claimant's allegations.

A workers' compensation judge held multiple hearings which employer did not attend. Claimant appeared and testified to the facts set forth above. He described the job of tearing off the roof and stated that he placed a piece of plywood on top of supporting beams to provide a platform on which to stand. Claimant informed employer that one of the beams was dry-rotted and could not support him, but employer assured claimant that it would. Claimant's disability is ongoing; he continually experiences headaches, difficulty with his balance, and pain in his left eye. Claimant did not believe he could go back to work, especially if it involved climbing.

Claimant also presented deposition testimony of the psychologist, who concluded that claimant's complaints were symptomatic of a concussion or mild traumatic brain injury, and that he was unable to return to work as a laborer as of his last examination.

Fund presented deposition testimony of Dr. Kasdan, who confirmed claimant sustained a skull fracture, but did not recommend any further treatment and opined claimant was able to return to full time light duty work levels.

The WCJ granted the claim petition and directed fund to pay claimant's total disability compensation. It accepted testimony of claimant and Collins as credible, and found, inter alia, that claimant had not fully recovered from his work injuries and that such injuries prevented claimant from returning to work as a laborer. The WCJ rejected Kasdan's testimony that claimant was no longer limited by the work injury.

Fund appealed to the Workers' Compensation Appeal Board, arguing, inter alia, that WCJ's findings concerning ongoing disability were not supported by substantial evidence. Board affirmed, concluding that Collins's testimony provided substantial evidence to support the WCJ's finding that claimant's disability extended beyond Nov. 25, 2009.

Fund appealed, arguing that Collins could not comment on claimant's status after Nov. 25, 2009, and therefore that his testimony did not constitute substantial evidence of ongoing disability. The Commonwealth Court affirmed.

In a claim proceeding, the burden is on claimant to establish a right to compensation and prove all necessary elements to support an award, including the burden to establish the duration and extent of disability. However, it is a fundamental principle of workers' compensation law that the WCJ is the final arbiter of witness credibility and evidentiary weight. Here, the WCJ specifically rejected the opinion of fund's medical witness and accepted that of claimant and claimant's medical witness. Both claimant and Collins testified that claimant sustained a work injury and experienced ongoing limitations as a result, and fund did not present any credible evidence rebutting their testimony.

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