Opinion
No. 1750 C.D. 2014
07-22-2015
Sir Marqus T. Kane, Petitioner v. Workers' Compensation Appeal Board (Allied Barton Security Services, Arch Insurance Co. and ESIS Northeast WC Claims), Respondents
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Sir Marqus T. Kane (Claimant), pro se, petitions this Court for review of the Workers' Compensation (WC) Appeal Board's (Board) August 12, 2014 order affirming the Workers' Compensation Judge's (WCJ) denial of his claim petition under the Workers' Compensation Act. Essentially, the sole issue before the Court is whether the WCJ erred in determining that Claimant failed to meet his burden of establishing that he sustained a work injury on October 23, 2011. After review, we affirm.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
On or about December 12, 2011, Claimant filed his claim petition alleging that he sustained a work injury on October 23, 2011 while working for Allied Barton Security Services (Employer) as a security officer assigned to the Philadelphia Art Museum. In his claim petition, Claimant averred that he stopped working on October 27, 2011 and sought total disability payments from that date. On November 9, 2011, Employer denied that Claimant sustained a work injury and disputed Claimant's alleged disability. Several hearings were held before a WCJ.
On June 10, 2013, the WCJ issued his decision denying Claimant's claim petition, finding that Claimant's evidence was not credible, and that Claimant had not met his burden of proving a work injury. Claimant appealed to the Board. On August 12, 2014, the Board affirmed the WCJ's decision. Claimant appealed to this Court.
"This Court's review of an order of the Board is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether Board procedures were violated, whether constitutional rights were violated or an error of law was committed." Wagner v. Workers' Comp. Appeal Bd. (Ty Constr. Co.), 83 A.3d 1095, 1097 n.3 (Pa. Cmwlth. 2014).
Claimant contends that the WCJ erred in holding that he failed to meet his burden of establishing that he sustained a work injury on October 23, 2011. "In a claim petition proceeding, the claimant bears the burden of establishing all elements necessary to support an award of benefits. The claimant must prove that he sustained a work injury that disabled him." Cytemp Specialty Steel v. Workers' Comp. Appeal Bd. (Crisman), 39 A.3d 1028, 1033 n.8 (Pa. Cmwlth. 2012) (citation omitted). "The WCJ, as fact finder, has exclusive province over questions of credibility and a reviewing court is not to reweigh the evidence or review the credibility of witnesses. Furthermore, a WCJ may accept or reject the testimony of any witness in whole or in part." City of Phila. v. Workers' Comp. Appeal Bd. (Reed), 785 A.2d 1065, 1068 (Pa. Cmwlth. 2001) (citation omitted). "Unless made arbitrarily or capriciously, a WCJ's credibility determinations will be upheld on appeal." Dorsey v. Workers' Comp. Appeal Bd. (Crossing Constr. Co.), 893 A.2d 191, 195 (Pa. Cmwlth. 2006). "[A] capricious disregard [of evidence] occurs only when the fact-finder deliberately ignores relevant, competent evidence." Williams v. Workers' Comp. Appeal Bd. (USX Corp.-Fairless Works), 862 A.2d 137, 144 (Pa. Cmwlth. 2004). Importantly, this Court has held:
'[I]t is irrelevant whether the record contains evidence to support findings other than those made by the WCJ; the critical inquiry is whether there is evidence to support the findings actually made.' [Minicozzi v. Workers' Comp. Appeal Bd. (Indust. Metal Plating, Inc.), 873 A.2d 25,] 29 [(Pa. Cmwlth. 2005)] (quoting Delaware County v. Workers' Comp. Appeal Bd. (Baxter Coles), 808 A.2d 965, 969 (Pa.[]Cmwlth.[]2002)). We review the entire record to determine if it contains evidence a reasonable mind might find sufficient to support the WCJ's findings. If the record contains such evidence, the findings must be upheld even though the record contains conflicting evidence.Lahr Mech. v. Workers' Comp. Appeal Bd. (Floyd), 933 A.2d 1095, 1101 (Pa. Cmwlth. 2007) (citation omitted).
In the instant case, Claimant testified before the WCJ that on Sunday, October 23, 2011 at approximately 4:30 a.m., he lost his balance and fell down 25 to 30 steps. Claimant stated that he had experienced dizziness and head pains prior to the fall. According to Claimant, he awoke approximately 30-40 minutes later with pain in his head, neck and left side of his body, back and shoulder areas. He claims to have radioed other security staff for assistance, informed them that he had fallen and that he needed emergency assistance, and possibly an ambulance. Claimant further described that he was told to remain where he was, that an ambulance had been requested, and that help was on the way. However, he recalled that after sitting on the steps for nearly five minutes, he was notified by radio to proceed to the officer's station. Claimant stated that he proceeded to the annex officer room. He described that he notified his supervisor by radio that he had arrived. According to Claimant, security officer Faykeita Wearing (Wearing) came to check on him and sat on the couch in the annex officer room with him for a couple hours. Wearing was radioed to advise Claimant to go to the employee entrance to wait for the ambulance to arrive. Claimant explained that since no ambulance came, he did not go to the emergency room, but rather, got a ride home with a friend.
Claimant declared that he was off from work the following day (Monday), took pain pills and slept. Claimant stated that although he called Employer on Tuesday to say that he was not feeling well, Employer asked him to come to work. He recalled that although he was given special duties that permitted him to sit most of that day, he had difficulty performing his job. Specifically, Claimant testified that he had difficulty standing up, staying conscious and answering visitors' questions. He claims that he told his coworkers that he was having trouble performing his job. The next day, Claimant performed the same modified duties. Claimant reported that, at the end of his shift, he met with Employer's client area manager Ferris Davis (Davis), who told him to see a doctor. On October 27, 2011, Claimant went to Einstein Hospital where he underwent diagnostic tests to determine a cause for his October 23, 2011 blackout, and he was given two Percocets and three extra-strength Ibuprofen tablets.
Employer presented the testimony of Wearing and Davis. Wearing testified that she was training Claimant on patrol procedures at the Philadelphia Art Museum on October 23, 2011. She recalled that, during patrol one, Claimant appeared fine; however, during patrol two, Claimant complained of feeling lightheaded. Wearing stated that she offered Claimant something to eat or drink, but he declined. Wearing explained that Claimant did not say why he was feeling dizzy, but indicated that he was stressed due to some personal issues. According to Wearing, while descending the steps during patrol two, Claimant lost his footing ahead of Wearing and grabbed the railing and the wall to break his fall. She testified that Claimant did not fall down, but simply tripped down a few steps. He did not bang his head and was not lying on the ground. Wearing reported the incident to her supervisor and asked Claimant if he needed medical attention. Claimant declined. Wearing declared that, after recovering for a few minutes, Claimant resumed patrol two, and finished the remaining patrols on his shift.
Davis testified that he investigated Claimant's claim about the October 23, 2011 fall, but could not corroborate Claimant's assertions. Moreover, no employees recalled hearing about a fall or requests for an ambulance on that date.
The WCJ found Claimant not credible and explained his reasons in a 23-page detailed and well-reasoned decision. The WCJ opined:
The testimony of the Claimant is not credible in establishing a disabling work injury that occurred at work on October 23, 2011 in which he allegedly fell 25-30 steps, bec[a]me unconscious for at least 30 minutes, and suffered disabling injuries to his neck, back and shoulder. In short, Claimant's testimony simply had too many inconsistencies and lacks corroboration to be believable. This WCJ would almost have to believe that there was a conspiracy on the [Employer's] part to cover up the October 23, 2011 injury, as it was denied by several [Employer] witnesses, including [] Wearing, who Claimant identified as a witness that Claimant would be offering to corroborate Claimant's version of events.Reproduced Record (R.R.) at 20. The WCJ gave numerous reasons supporting his conclusion that Claimant was not credible. Those include:
a. Claimant reported a fall down stairs in which he radioed several times for an ambulance, which fall and report of an injury on October 23, 2011 no one was able to corroborate[.]
b. [A]fter alleging he fell down 25-30 steps and he requested an ambulance, Claimant's version is that the [Employer] never called for an ambulance. . . . [A]fter falling 25-30 steps and believing he was unconscious for 30-40 minutes having suffered a 'head trauma' causing blurry vision . . . Claimant simply went home with a friend and did not go to the emergency room. . . .
c. The Claimant stated that after this alleged fall he radioed and spoke with several people, none of whom were able to
corroborate his stories and none of whom he offered to support his position in the case. . . .R.R. at 20-22 (emphasis added).
d. At Mr. Davis' deposition, Claimant through Counsel specifically indicated on the record that he was going to present [co-worker] Faykeita Wearing's testimony regarding the incident to support his case. (Davis Dep. at 15-16). Instead, [Employer] offered her testimony and she completely contradicted Claimant's version of events that Claimant suffered a fall down injury. . . .
e. Claimant alleged that he made everyone aware of the fall and all of his problems in the couple days that he worked after the injury, but again Claimant failed to offer any witnesses to support his statements[.]
f. Claimant appeared to exaggerate his job duties time and time again. . . . Claimant alleged that he would have to break up altercations and physically restrain people and that he had to break up altercations up to 15 times since being employed for two months. Again, [Employer's] witnesses credibly denied this and state that Claimant's statements were totally against protocol. . . .
. . . .
h. The Claimant allegedly fell on October 23, 2011, a Sunday, and then went to Einstein ER on October 27, 2011, a Thursday, four days later. Certainly if the Claimant had fallen down 20-30 [sic] stairs causing him to become unconscious for 30-40 minutes and causing injuries to all of the body parts that he is [sic] alleged, one would think that there would have been findings of lacerations, bruising, brush burns, or some other physical evidence on his body that would have documented the muscular injuries. There was no indication in the ER records at all of any such injuries.
Claimant argues that Wearing's deposition testimony proves he fell down a flight of 25-30 steps on October 23, 2011. However, Claimant clearly mischaracterized her testimony. Wearing testified:
Q: Did something happen?
A: We were in the annex and [Claimant] went to the annex door . . . and he came down the stairs and lost his footing, grabbed onto the railings and the wall to break his fall.
. . . .
Q: Did he fall down?
A: No.
Q: Did you report this incident to your superiors?
A: I immediately radioed in to my supervisor.
Q: What did you tell your supervisor?
A: I told him that [Claimant] had fallen and he may be in need of medical assistance, what should I do?
Q: You previously said he didn't fall down. You're saying he did?
A: He didn't fall to the degree he testified.
Q: Did he bang his head?
A: No.
Q: What do you mean by he didn't fall to the degree - did he lose his footing?
A: He lost his footing, he grabbed to the wall and to the railing and I guess tripped down a few stairs, but he didn't fall. As if someone was trying to break their fall.
Q: So, he wasn't lying on the ground?
A: No.
. . . .
Q: What did you tell [your supervisor]?
A: I radioed in [Claimant] was down, tripped on the stairs, what should I do?
Q: And what did [your supervisor] say[?]
A: [Claimant] had a radio also, so he heard him ask him if he needed medical attention and he responded, 'No.'R.R. at 52-54. We hold that Wearing's testimony does not support Claimant's representation that he fell down 25 to 30 steps and was knocked unconscious for 30-40 minutes. Instead, Claimant's record references support Employer's version of events.
Q: And you were right there?
A: Yes.
Simply put, the WCJ, as fact finder, did not find Claimant credible, and did not believe Claimant's testimony that he had sustained a work injury. Rather, the WCJ believed Employer's witnesses whose testimony directly conflicted with Claimant's. The WCJ meticulously described the evidence and explained his reasons for crediting Employer's witnesses' testimony and discounting Claimant's evidence, thereby clearly demonstrating that substantial evidence supports the WCJ's factual findings. Where, as here, credible facts support the findings the WCJ made, we may not "reweigh the evidence or review the credibility of witnesses." City of Phila., 785 A.2d at 1068. Moreover, there is no indication that the WCJ's credibility determinations were "made arbitrarily or capriciously." Dorsey, 893 A.2d at 195. Although Claimant offered medical testimony supporting Claimant's complaints of back and shoulder discomfort, and emergency room records from his October 27, 2011 visit, Claimant failed to credibly establish that the medical findings contained therein were the result of a work injury. Thus, Claimant failed to meet his burden "that he sustained a work injury that disabled him." Crisman, 39 A.3d at 1033 n.8 (emphasis added).
The WCJ stated: "[T]his [WCJ] observed the Claimant's demeanor during his testimony. His testimony just does not ring true." R.R. at 22. --------
For all of the above reasons, the Board's order is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 22nd day of July, 2015, the Workers' Compensation Appeal Board's August 12, 2014 order is affirmed.
/s/_________
ANNE E. COVEY, Judge