Wednesday, April 3, 2013

Pa WCJ Decision and the "Reasoned Decision" Requirement

The Pennsylvania Workers' Compensation Act was amended in 1993 to require that the Workers' Compensation Judge file "... a reasoned decision, containing findings of fact and conclusions of law based upon the evidence as a whole which clearly and concisely explains the rationale for the decisions so that all can determine why and how a particular result was reached. The workers' compensation judge shall specify the evidence upon which the workers' compensation judge relies and state the reasons for accepting it in conformity with this section". 
Section 422(a) 77 P.S. 834.

Section 422(a) continues: " when faced with conflicting evidence, the workers' compensation judge must adequately explain the reasons for rejecting or discrediting competent evidence. Uncontroverted evidence may not be rejected for no reason or for an irrational reason; the workers' compensation judge must identify that evidence and explain adequately the reasons for its rejection.
The adjudication shall provide the basis for meaningful appellate review".

Often unsuccessful litigants will allege on appeal that the WCJ failed to author a "reasoned decision".

A recent unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania,  No. 1533 C.D. 2012, authored by Judge Brobson on March 27, 2013 discussed this issue at:
Cardone Industries v. WCAB (Varghese) (Pa. Cmwlth. 2013).

Factual & Procedural Background

Employee fell after being struck by a forklift at the workplace.
His claim petition alleged injuries to the left shoulder, wrist and hand.
Employee, Employee Medical witness and Employer Medical Witness, all testified via deposition.
WCJ granted the claim for ongoing total disability as a result of a left wrist injury.
Employer appealed and argued the WCJ failed to issue a reasoned decision.

Employer Legal Arguments
The WCJ summarized the deposition testimony of each witness.
The WCJ "announced" her credibility determinations.
She failed to provide reasons for finding Employee credible.
She failed to provide reasons for finding Employee Medical witness more credible than Employer's medical witness.

Commonwealth Court Decision
VACATED the WCAB decision which affirmed the WCJ award.
The case was REMANDED to the WCJ for a new decision and order,
"Which shall include actual objective bases for her credibility determinations pursuant to Section
422(a) of the Act".   [slip opinion page 11]

The WCJ summarized the testimony of each witness. The Court decision "reprinted" these summaries in full. The instant WCJ decision was said to be similar to prior WCJ decisions reviewed by the Pa Supreme Court in Daniels v. WCAB (Tristate Transport) and the Commonwealth Court in Lewis v. WCAB (Disposable Products).

As stated by the Supreme Court in Daniels: ... although the WCJ's summarization of the witnesses' testimony demonstrates her grasp of the whole evidentary record, the WCJ articulated no objective basis for deeming the deposition opinions of the [employer's medical witness] to be more credible and persuasive than those of the [claimant's medical witness].

"... absent some articulation of the basis for her conclusion on credibility ... the credibility decision does not meet the standard found at Section 422(a)".
828 A.2d at 1054.

Here, in Cardone Industries, the WCJ simply states that she had "reviewed and considered all of the evidence" and found Employee to be credible.
She credited Employee's medical witness over Employer's medical witness, based upon "a review of the evidentary record as a whole".

Most WC practitioners will recognize these statements are somewhat "standard" phrases in WCJ decisions.
However, these statements are insufficient to constitute actual objective bases for crediting one witness over another.

Practice Pointers:

1. IMO it is difficult to reverse a WCJ decision solely based upon the "reasoned decision" argument.
    But consider the instant case. What were the reasons for the award? In future review of this award,
    what do you need to prove to prevail in a future Modification/Suspension/Termination request?
    Cudos, to Employer for challenging this decision.

2. What are sufficient reasons from the WCJ?  We have discussed and debated this topic since the
     1993 amendments.

Do we want the WCJ to find employee or employer witness less credible because:
    they are argumentative in their answers,
    they do not answer questions directly,
    they do not make eye contact?

Do we want to compel the WCJ to "explain" that one medical witness is more persuasive than another because:
              they have the opportunity to examine employee more than once,
              they had the opportunity to review all medical records,
              the medical witness listed more "reasons" for his opinion?

3. These are evidentary issues that we must consider at the outset of litigation, before any testimony. We should ask:

How does each piece of evidence, how does each witness build the case?

What fact or factors can we develop as legal counsel to promote the "worthiness" of one witness over another?

Does this medical witness "specialize" in this type of injury?
Did this witness work with the employee... and was unaware of any injury?
The questions are endless...

As advocates for our clients positions, we must insist that the WCJ explain the reasons for their decision, so that the parties can understand why they "won or lost". We may not agree with the decision, but we are entitled to know "why" the case was decided.

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