Garnett v. WORKERS'COMPENSATION APPEAL BOARD
v.
Workers' Compensation Appeal Board (Peaks Little Angels, Inc. and UEGF), Respondents.
Commonwealth Court of Pennsylvania.
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge.
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE LEADBETTER.[1]
Margaret Garnett (Claimant), pro se, petitions this court for review of the order of the Workers' Compensation Appeal Board which denied her claim petitions filed against Peaks Little Angels, Inc. (Employer) and the Uninsured Employers Guaranty Fund (UEGF). After review, we affirm.[2]
Claimant was employed as an assistant teacher by Employer from September 2008 until her last day of work, on October 15, 2008. On January 14, 2009, Claimant filed a claim petition alleging that on October 3, 2008, she sustained injuries to her head, neck, back, right hip, right knee, right foot, right arm and right hand in a trip and fall in the course and scope of her employment with Employer. Because there was a question as to the Employer's workers' compensation carrier, Claimant also filed a claim petition against UEGF on March 6, 2009.[3] Both Employer and UEGF filed answers denying the material allegations of the petitions.
Claimant testified by deposition and in person and presented the deposition testimony of her treating physician, Dr. Catherine Maturo, D.O. In defense, Employer and UEGF presented the deposition testimony of Dr. Ira Sachs, D.O., as well as the testimony of Thelma Peake, Executive Director of Employer, and Cynthia Hilton, a mother of one of Claimant's students.
Claimant testified that she began working at Employer on September 15, 2008, and was injured on October 3, 2008. Claimant testified that on that date, the doorbell rang around 5:00 p.m., and after she answered the door and returned to her classroom, a child named Daylin stuck his foot out and tripped her. Claimant stated that she fell over some chairs and onto the floor, striking her forehead on the floor and injuring her head, shoulder, arm and back. Claimant testified that there was a parent of a child named Clover in the room who witnessed her fall and that she told the head teacher, Mrs. Lewis, what had happened. Mrs. Lewis told her to write up an incident report. Claimant sought medical treatment from Dr. Tareen, who arranged for x-rays and physical therapy. Claimant also had a CT scan of her head at Mercy Hospital and later began treating with Dr. Bonafino, and still later with Dr. Maturo, who diagnosed Claimant with cervical, thoracic and lumbar strain and sprain, right shoulder sprain and strain, post-traumatic stress syndrome and post-traumatic headache, with numbness and tingling into the right upper and lower extremity. Dr. Maturo testified that Claimant cannot return to her job as a teacher and that her prognosis was guarded. On cross-examination, Dr. Maturo admitted that she never saw any records of Claimant's prior injuries and that she was not aware that Claimant had injured the same parts of her body in those accidents. Dr. Maturo testified that "[i]t would be nice to review those records, absolutely." Dr. Maturo's July 16, 2009 Deposition at 35.
At the hearing, Claimant testified that after the accident on October 3, 2008, she returned to work for ten days, until her last day of work on October 15, 2008. Claimant stated that she was still in pain from her injuries and felt that she could not return to any work. On cross-examination, Claimant testified that there was a parent in the room at the time she was tripped and fell, but she did not know her name, although her child's name was Clover. Claimant testified that she suffered a work-related injury to her ankle in 1996 while working for the School District of Philadelphia and was out for ten years. Claimant also acknowledged that she had a slip and fall accident in 1997 involving SEPTA and another in front of a bank in 2001, as well as several auto accidents in 2002 and 2003. Finally, Claimant testified that she injured the same parts of her body in those accidents as she did in the present case and that in all of her prior accidents she pursued legal action due to the severity of her injuries.
Employer presented the deposition testimony of Dr. Ira Sachs, who examined Claimant on July 24, 2009, and reviewed all of her available medical records, as well as the deposition testimony of Claimant's physician, Dr. Maturo. Dr. Sachs performed a thorough orthopedic examination of all of the areas that Claimant had complained of and found no objective findings of physical abnormalities. Dr. Sachs opined that Claimant was fully recovered and could return to work with no restrictions. Dr. Sachs based his opinion entirely on the history given to him by Claimant.
Thelma Peake, who ran a full-day pre-school and kindergarten, testified that she was never told that Claimant injured herself on October 3, 2008, but recalled speaking with Claimant on October 15 about the amount of taxes being withheld from her paycheck. Ms. Peake testified that during that conversation, Claimant went on to complain about the children at the school and used inappropriate language. Ms. Peake told Claimant that she could not work there if that was how she felt, and that Claimant then told her she had fallen while at work. In response to Claimant's testimony that a parent of a child named Clover witnessed her accident on October 3, Ms. Peake stated that no child by that name was ever at her school. Finally, Ms. Peake testified that Claimant's classroom has two carpets on it, one right on top of another; that neither Claimant nor the head teacher told her about Claimant's alleged fall on the day in question; and that Claimant would not have opened the door to let a parent in on October 3 as she testified, because that would have been the responsibility of another employee.
Also testifying for Employer was Cynthia Hilton, who had a child in Claimant's classroom. Ms. Hilton testified that on the day in question, she was let into the school by Vicki and went to Claimant's classroom for her child. Ms. Hilton said that she waited while Claimant finished reading the children a story and that at one point, Claimant slumped over off of her chair and then got herself back into her chair. Ms. Hilton testified that Claimant turned to her and said, "did you see that?" Hearing of December 9, 2009, Notes of Testimony (N.T.), at 47. Ms. Hilton stated that Claimant did not trip over any students and never got out of her chair, other than observing Claimant slumping to the side.
The Workers' Compensation Judge (WCJ) found Ms. Hilton's testimony more credible and persuasive than Claimant's testimony. The WCJ found that Claimant did not suffer a fall at Employer's place of business on October 3, 2008 as Claimant alleged. He further found the testimony of Employer's medical expert, Dr. Sachs, to be more credible and persuasive than that of Claimant's treating physician, Dr. Maturo. Because he dismissed the claim petitions, it was not necessary to make a finding as to whether Employer had workers' compensation coverage. Concluding that Claimant had not met her burden of proving that she suffered a work-related injury, the WCJ denied both petitions.
Claimant appealed, arguing that the WCJ erred in finding that she did not sustain an injury at work and that the WCJ's decision was not supported by substantial, competent evidence. The Board affirmed the WCJ's decision, concluding that the WCJ's findings were based on his credibility determinations. Claimant now petitions this court for review.[4]
Claimant argues that the WCJ erred in finding that Ms. Hilton's testimony was more credible and persuasive than her own testimony and that Claimant had not met her burden of proving that she sustained a work-related injury during the course and scope of her employment. Claimant also argues that the WCJ erred by failing to conclude that she was entitled to workers' compensation benefits, especially in light of Employer's lack of workers' compensation coverage.
Claimant maintains that the WCJ erred in accepting the testimony of Employer's witness, Ms. Hilton, as more credible and persuasive than her own testimony. Claimant asserts that contrary to Ms. Hilton's testimony, it was the mother of a student named Clover and not Ms. Hilton, who witnessed the trip and fall, and that Vicki could not have let Ms. Hilton into the building that day because Vicki had left work early. Claimant also asserts that Ms. Hilton lied about having another child in the daycare because she only saw Ms. Hilton sign her daughter in in the mornings. Finally, Claimant argues that if Vicki opened the door for Ms. Hilton the afternoon of the accident, then Vicki would have witnessed Claimant faking the accident, or her being tripped and falling exactly as she testified.
It is well-settled that as the ultimate fact finder in a workers' compensation case, the WCJ has the exclusive authority to assess the credibility of the witnesses and resolve conflicts in the testimony. Bethenergy Mines, Inc. v. Workmen's Comp. Appeal Bd. (Skirpan), 531 Pa. 287, 612 A.2d 434 (1992). Additionally, it is solely for the WCJ to determine the weight to give to any evidence and the WCJ may reject the testimony of any witness in whole or in part. Hoffmaster v. Workers' Comp. Appeal Bd. (Senco Prods. Inc.), 721 A.2d 1152 (Pa. Cmwlth. 1998).
In a claim petition, the employee bears the burden of establishing a right to workers' compensation and of proving all necessary elements to support an award. Inglis House v. Workmen's Comp. Appeal Bd. (Reedy), 535 Pa. 135, 634 A.2d 592 (1993). Claimant's argument amounts to nothing more than an impermissible attack on the WCJ's credibility determinations, which cannot be disturbed on appeal. Simply put, Claimant asserts that her version of events was "more truthful" than Employer's witness, Ms. Hilton's version. The WCJ in his findings clearly explained his reasons for finding Ms. Hilton more credible and persuasive than Claimant on the incident which allegedly occurred on October 3, 2008. The WCJ credited Ms. Hilton's testimony and concluded that no injury had occurred on the date in question and, therefore, Claimant failed to sustain her burden of proof on a claim petition. Ms. Hilton's testimony, accepted by the WCJ, constitutes substantial evidence supporting the WCJ's conclusion.
Next, Claimant argues that there are too many inconsistencies in Employer's and Ms. Hilton's testimony that contradict her testimony, and for that reason, the WCJ erred in rejecting her testimony and accepting the Employer's and Ms. Hilton's testimony.
Claimant's arguments are once again nothing more than an impermissible attack on the WCJ's credibility determinations. Because Claimant failed to establish her entitlement to compensation benefits, the WCJ correctly denied the claim petitions against Employer and UEGF.[5]
Accordingly, we affirm the order of the Board.
ORDER
AND NOW, this 6th day of February, 2012, Employer's Brief in this matter is hereby stricken under Walacavage v. Excell 2000, Inc., 480 A.2d 281 (Pa. Super. 1984), and the order of the Workers' Compensation Appeal Board in the above-captioned matter is hereby AFFIRMED.
[1] This case was assigned to the opinion writer on or before January 6, 2012, when President Judge Leadbetter completed her term as President Judge.
[2] Employer filed a pro se brief in this matter. Under Walacavage v. Excell 2000, Inc., 480 A.2d 281 (Pa. Super. 1984), a corporation may appear and be represented in our courts only by an attorney duly admitted to practice. Accordingly, Employer's brief is stricken.
[3] UEGF was established by Section 1602 of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, added by Section 7 of the Act of November 9, 2006, P.L. 1362, 77 P.S. § 2702(c), "for the exclusive purpose of paying to any claimant or his dependents workers' compensation benefits due and payable under this act . . . and any costs specifically associated therewith where the employer liable for the payments failed to insure or self-insure its workers' compensation liability under section 305 at the time the injuries took place." (footnote omitted). An injured worker must notify the Fund within 45 days after he or she knows that employer is uninsured. Section 1603 (b) of the Act, added by Section 7 of the Act of November 9, 2006, P.L. 1362, 77 P.S. §2703 (b). Then, "[i]f a claim for compensation is filed . . . and the claim is not voluntarily accepted as compensable, the employee may file a claim petition naming both the employer and the fund as defendants." Section 1604 of the Act, added by Section 7 of the Act of November 9, 2006, P.L. 1362, 77 P.S. §2704. However, the statute makes it clear that the department "shall determine the obligations of the employer" and that, "[n]o compensation shall be paid from the fund until notice is given and the department determines that the employer failed to voluntarily accept and pay the claim or subsequently defaulted on payments of compensation." Section 1603 (b) of the Act, added by Section 7 of the Act of November 9, 2006, P.L. 1362, 77 P.S. §2703(b).
[4] Our review is limited to determining whether there is substantial competent evidence supporting the necessary findings of fact made by the WCJ and whether the WCJ committed an error of law. Bethenergy Mines, Inc. v. Workmen's Comp. Appeal Bd. (Skirpan), 531 Pa. 287, 612 A.2d 434 (1992).
[5] Having thus concluded that Claimant did not meet her burden of proof, it is not necessary to address the issue of Employer's workers' compensation coverage.
