Tuesday, March 16, 2004

Commonwealth Court States Findings of Fact Not Reviewable

In J. Almeida v. WCAB (Herman Goldner Company) the NCP accepted a strain to the lower back. In later termination proceedings, the Claimant's medical witness stated the Claimant sustained a herniated lumbar disc. The Employer's medical witness stated the Claimant was recovered from a lumbar strain and his continuing complaints were from non work-related mild degenerative disc disease.

The WCJ found the Claimant's expert credible, but also found the Claimant did not sustain a herniated disc. The WCJ noted the Claimant's non work-related degenerative disc disease was not symptomatic prior to the injury.

The Claimant appealed. He asserted the WCJ's finding the Claimant did not sustain a herniated disc was not supported by substantial evidence. The Board affirmed on the basis of the WCJ's authority over matters of credibility.

The Commonwealth Court affirmed on the basis that a party lacks standing to appeal a finding of fact where the party does not appeal the Order of the WCJ. The Court stated the Claimant was not aggrieved by the Order of the WCJ, and therefore no standing to appeal is granted by Pa. R.A.P. 501 or Section 702 of the Administrative Agency Law.

In a footnote (No. 5), the Court stated it agreed the WCJ's fact finding was "appropriate", but the Court was without power to set aside the WCJ's factual finding on the herniated disc without invading the province of the WCJ to weigh the evidence and make credibility determinations.

The WCJ's fact finding in this case was appropriate because it satisfied the framework the Supreme Court has established in Daniels and Wintermeyer for reviewing credibility findings of a WCJ. The WCJ did explain, as required by Daniels, that the diagnosis of a herniated disc was not credible because it was unsupported by objective evidence. Also, it is not clear beyond doubt that the WCJ capriciously disregarded other competent evidence, which triggers judicial review under Wintermeyer.

This analysis also would allow the finding of the WCJ to have Res Judicata effect. If a finding of fact cannot be appealed, the denial of due process as to this adjudication of the WCJ makes giving the finding Res Judicata effect also a denial of due process.

The description of injury is a very important element in allocating the burden of proof under recent caselaw. If it is true a description of injury in a WCJ's finding of fact cannot be appealed, the parties should demand that whenever the description of injury is at issue it be included in the Order with the appropriate diagnosis code(s) as testified to by the medical witnesses.

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