K.A. Finck v. Union County Commissioners (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kelly A. Finck, :

Petitioner :

:

v. : No. 1029 C.D. 2022

: Submitted: April 28, 2023

Union County Commissioners :

(Workers’ Compensation Appeal :

Board), :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE LORI A. DUMAS, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

PRESIDENT JUDGE COHN JUBELIRER FILED: December 18, 2023

Kelly A. Finck (Claimant), pro se, petitions for review of the July 22, 2022

Order of the Workers’ Compensation Appeal Board (Board) that affirmed a decision

of the Workers’ Compensation Judge (WCJ), denying and dismissing her two claim

petitions. On appeal, Claimant argues ineffective assistance of counsel1 and that the

WCJ abused his discretion with regard to an evidentiary ruling by considering

irrelevant evidence.2 After careful review, we affirm.

1

We note that the record shows that three attorneys of the same firm participated in the

representation of Claimant. Claimant does not distinguish between them in her brief. Accordingly,

neither will we. Rather, we will, to the extent relevant, examine their representation of Claimant

in the aggregate, referring to them throughout the opinion simply as “Claimant’s counsel.”

2

We have combined and reordered Claimant’s arguments for ease of discussion.

I. BACKGROUND

A. Procedural & Factual Background3

On October 30, 2016, Claimant allegedly slipped and fell on a wet floor while

working as a cook, injuring her hip. (WCJ Decision, Findings of Fact (FOF) ¶¶ 1,

10-11.) Initially, Claimant’s employer, Union County Commissioners (County or

Employer), issued a Notice of Temporary Compensation Payable on November 21,

2016, describing the injury as a right hip sprain. (Id. ¶ 4.) It subsequently issued a

Notice Stopping Temporary Compensation Payable and a Notice of Workers’

Compensation Denial on January 26, 2017, based on alleged noncompliance with

medical treatment. (Id. ¶¶ 5-6.) As a result, Claimant filed her first claim petition

on February 10, 2017. (Certified Record (C.R.) Item 2.)

Thereafter, Employer offered Claimant a light-duty, part-time position as a

receptionist, and Claimant worked in that capacity from August 24 until October 10,

2017. (FOF ¶¶ 41, 43, 47.) Prior to returning to light-duty work, Claimant’s husband

was convicted of an election-related offense and sentenced to a period of

incarceration. (Id. ¶¶ 31, 32, 43.) The light-duty position Claimant was assigned

was located just outside the election board’s office, and, as a result, Claimant had

frequent contact with individuals she blamed for her husband’s arrest. (Id. ¶¶ 43,

47, 131; see also Exhibit (Ex.) D-11 (Floor Plan of Union County Government

Center), C.R. Item 60.)4 On April 11, 2018, Claimant filed a second claim petition,

pro se, alleging “anxiety disorder and panic attacks caused by actions of other []

County employees.” (FOF ¶ 2; C.R. Item 58.) The WCJ consolidated the two

3

While Claimant originally challenged some findings of fact before the Board, Claimant

no longer pursues those before this Court. Thus, we treat those findings as undisputed.

4

Because the two claim petitions were consolidated, the Certified Record contains

duplicates of certain items, such as transcripts and exhibits, which were separately docketed for

each claim petition. For convenience, we cite only to the first instance of a given item.

2

petitions, and multiple hearings were held at which Claimant appeared pro se for

some and was represented by her counsel for others.

Claimant testified5 she was displeased with the light-duty placement and

asked Human Resources (HR) to place her anywhere else because of its proximity

to the election board’s office. (FOF ¶¶ 43, 44, 131, 136.) During the almost two

months she worked in that capacity, she testified that she experienced stress due to

comments other employees would make, including comments from an election

board employee who had testified against her husband at his criminal trial. (Id. ¶

47.) Claimant also indicated that her husband’s probation officer (PO), also a

County employee, searched her house twice, released her medical information,

threatened her husband, and accused her of lying. (Id. ¶¶ 48-50.)

Claimant testified that these interactions, coupled with her husband’s release

from incarceration with bruises and abrasions, caused anxiety and panic attacks. (Id.

¶¶ 50, 100.) The first severe panic attack, according to Claimant, came after a

telephone call with the PO in which he allegedly threatened her. (Id. ¶¶ 51, 126.)

According to Claimant, it became clear to her that the PO also had access to her

personnel records and medical information. (Id. ¶ 54.)

In addition, Claimant’s husband testified about his interactions with Tioga

County prison officers, his interactions with the PO, and his wife’s condition.6

Claimant’s counsel also deposed Mahmood Nasir, M.D., a pain management

5

Claimant testified at the April 18, 2017, September 5, 2018, October 31, 2018, December

18, 2018, January 24, 2019, March 14, 2019, and September 8, 2020 hearings, transcripts of which

can found in the Certified Record at Items 11, 15, 16, 17, 18, 19, and 29, and her testimony is

summarized in Findings of Fact 8-22, 39-85, 88-108, 109-15, 116-27, 128-41, and 142-55.

6

Claimant’s husband testified at the September 8, 2020 hearing and his testimony is

summarized in Findings of Fact 157-73.

3

specialist and neurologist with whom she treated for the hip injury,7 and Jeffrey A.

Gold, Ph.D., a licensed psychologist with whom she treated for the anxiety and panic

attacks.8 Dr. Nasir testified that, in his opinion, the hip injury was work related. (Id.

¶ 237.) Dr. Gold testified that, in his opinion, Claimant’s psychological condition

“w[as] related to Claimant’s pain because it was a stressor” but was mostly caused

by “anxiety related to [E]mployer and the interactions they [sic] had with her.” (Id.

¶ 254.) Dr. Gold also testified that Claimant came to him on a referral from her

counsel. (Id. ¶ 242.) When asked who sent her to Dr. Gold, Claimant stated that she

could not recall. (Id. ¶ 72.)

Employer called County employees who interacted with Claimant,

specifically the PO,9 an election board official,10 a coworker of Claimant,11 and

Employer’s HR director,12 who, overall, testified that they did not engage in the

harassing behavior alleged by Claimant. (See, e.g., id. ¶¶ 179; 181; 186; 203-04;

212; 223-25; 230.) Employer also deposed three Tioga County Prison officers and

the deputy warden who interacted with Claimant’s husband while he was

7

Dr. Nasir’s deposition transcript can be found in the Certified Record at Item 40 and his

testimony is summarized in Findings of Fact 233-41.

8

Dr. Gold’s deposition transcript can be found in the Certified Record at Item 41 and his

testimony is summarized in Findings of Fact 242-55.

9

The PO testified at the December 13, 2019 and January 14, 2020 hearings, transcripts of

which can be found in the Certified Record at Items 24 and 25, and his testimony is summarized

in Findings of Fact 174-88 and 189-99.

10

The election official testified at the May 29, 2020 hearing, a transcript of which can be

found in the Certified Record at Item 27, and her testimony is summarized in Findings of Fact 200-

08.

11

The coworker testified at the May 29, 2020 hearing, and her testimony is summarized in

Findings of Fact 209-17.

12

HR director testified at the May 29, 2020 and July 16, 2020 hearings, transcripts of which

can be found in the Certified Record at Items 27 and 28, and her testimony is summarized in

Findings of Fact 218-221 and 222-31.

4

incarcerated there.13 And finally, Employer deposed three expert witnesses, Thomas

DiBenedetto, M.D., a board-certified orthopedic physician,14 Wolfram Rieger, M.D.,

a board-certified psychiatrist,15 and Patrick B. Respet, M.D., a board-certified

orthopedic surgeon,16 all of whom examined Claimant. Drs. DiBenedetto and Respet

testified that Claimant did not sustain a disabling work-related hip injury, (id. ¶ 292),

and Dr. Rieger testified that Claimant’s anxiety and panic attacks were not related

to her alleged hip injury and were situational, such that the “triggers were

interactions with [County] employees regardless of [where] those interactions would

occur,” (id. ¶ 289).

B. WCJ and Board Decisions

On October 25, 2021, the WCJ issued his decision denying and dismissing

both claim petitions. The WCJ determined that Claimant had not carried her burden

of proving that she had suffered compensable injuries under the Workers’

Compensation Act (Act)17 “because her evidence has been found to be not credible.”

(WCJ Decision, Conclusions of Law ¶ 2.) Specifically, the WCJ made the following

credibility determinations. Although the WCJ credited Claimant’s testimony about

falling at work and that she perceived her hip pain prevented her from returning to

work as a cook, the WCJ rejected Dr. Nasir’s testimony and credited the testimony

of Drs. DiBenedetto and Respet that Claimant’s fall at work did not cause a right hip

13

These deposition transcripts can be found in the Certified Record at Items 66-69 and are

summarized in Finding of Fact 232.

14

Dr. DiBenedetto’s deposition transcript can be found in the Certified Record at Item 61

and his testimony is summarized in Findings of Fact 256-67.

15

Dr. Rieger’s deposition transcript can be found in the Certified Record at Item 62 and

his testimony is summarized in Findings of Fact 277-89.

16

Dr. Respet’s deposition transcript can be found in the Certified Record at Item 64, and

his testimony is summarized in Findings of Fact 268-76.

17

Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.

5

labral tear but rather was limited to a hip contusion that did not prevent her from

working. (FOF ¶¶ 290-93.) And while the WCJ found Claimant credible insofar as

she experienced panic attacks during her light-duty receptionist position, he rejected

Claimant’s allegations that those attacks stemmed from her interactions with County

employees, specifically finding that the election official, coworker, and HR director

were “more credible than Claimant[].” (Id. ¶¶ 294-95.) The WCJ also did not credit

Claimant’s testimony concerning her interactions with her husband’s PO. (Id.

¶ 296.) The WCJ found husband’s testimony regarding mistreatment in jail and his

interactions with the PO not credible, explicitly finding the Tioga County Prison

officers’ testimony and the PO’s testimony more credible. (Id. ¶ 300.) In addition,

the WCJ found that “Claimant’s credibility was significantly diminished” because

she did not reveal that she had found a particular physician, Dr. Gold, at the

recommendation of her attorney despite intake forms and the physician’s testimony.

(Id. ¶ 297.)18 The WCJ credited the PO’s testimony that he never released any of

Claimant’s information. (Id. ¶ 298.) The WCJ did not credit Dr. Gold’s opinions

because they were “based solely on Claimant’s subjective perceptions of her

employment, and while real to her, they have been found not credible as fact by th[e]

WCJ.” (Id. ¶ 299.)

Claimant appealed to the Board, which affirmed.19 Relevant here, the Board

declined to remand for a rehearing based on Claimant’s ineffective assistance

allegations, reasoning as follows:

18

The WCJ also found Claimant’s credibility diminished because “she testified that

[Employer] made her return to work when her husband was sentenced and incarcerated [but

Employer’s HR director] testified that [Employer] accommodated Claimant’s request to delay her

start date.” (FOF ¶ 297.)

19

Commissioner Gabig concurred in the result only.

6

Claimant points us to alleged corroborating evidence that she argues

could have bolstered her and her husband’s credibility, such as video

from [her husband’s] incarceration at [Tioga County Prison]. However,

it is unclear whether this evidence was in Claimant’s counsel’s

possession or if it would have been permitted into the record. Claimant

also calls to our attention her counsel’s failure to call certain witnesses,

such as the [c]ounty [w]arden and his wife. Nevertheless, there is no

way to discern whether these witnesses, if they were to even appear,

would have assisted Claimant’s case or how this testimony would have

bolstered her and her husband’s credibility. We, as the Board, do not

propose to know the details of her counsel’s trial strategy. Nonetheless,

it is apparent from the 10 lay witness testimonies obtained, numerous

hearings devoted to Claimant’s testimony, multiple medical experts

deposed, and multitudinous exhibits entered on the record over a three[-

]and[-]a[-]half year period of litigating, that Claimant’s counsel did his

due diligence, made every attempt to chase down evidence, and spared

no expense in advocating for Claimant, despite an unsuccessful

outcome. We do not believe the circumstances of this case justify a

remand or rehearing for collection of additional evidence.

(Board Op. 19-20.) Claimant thereafter filed the instant Petition for Review.

II. DISCUSSION

A. Standard of Review

Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704, limits our

review in workers’ compensation matters to determining whether the Board violated

constitutional rights, failed to act in accordance with law, or made findings

unsupported by substantial evidence. Universal Am-Can, Ltd. v. Workers’ Comp.

Appeal Bd. (Minteer), 762 A.2d 328, 331 n.2 (Pa. 2000). A conclusion is “not in

accordance with law . . . if the agency decision represents ‘a manifest and flagrant

abuse of discretion or a purely arbitrary execution of the agency’s duties or

functions.” Slawek v. State Bd. of Med. Educ. & Licensure, 586 A.2d 362, 365 n.4

(Pa. 1991). Thus where, as here, a claimant asks us to reverse the Board for abuse

7

of discretion under the Act, we review for flagrant abuse of discretion or arbitrary

execution of the Board’s duties.

B. Ineffective Assistance of Counsel

1. Parties’ Arguments20

Claimant’s first argument is that her counsel was ineffective by failing to

present the “positive side” of her case. (Claimant’s Brief (Br.) at 12.) Specifically,

she points to counsel’s failure to question her further after she forgot to mention that

she learned of Dr. Gold through her attorney. (Id.) Further, in her view, her counsel

should have called a number of character witnesses. (Id. at 13.)

She also complains that her counsel was ineffective by failing to impeach

Employer’s witnesses. The thrust of her argument is that, had her counsel pointed

more specifically to certain alleged inconsistencies, it would have become clear that,

for example, the PO “flip-flopped some stories . . . and blatantly lied . . . .” (Id. at

15.) She also asserts that her counsel erred in not introducing pictures of her husband

after release from prison because had he, Claimant’s “credibility and that of her

husband would not have been called into question.” (Id.) She further suggests that,

had her counsel “properly questioned . . . , called additional witnesses, and

subpoenaed additional records, it could have been proven that the PO and [Tioga

County Prison officers] had committed perjury during their testimony in order to

20

Claimant’s brief does not cite caselaw or relevant legal authority, nor does Claimant

meaningfully discuss precedent. See Pa.R.A.P. 2119(a) (the argument shall include “such

discussion and citation of authorities as are deemed pertinent”). Despite the shortcomings in

Claimant’s brief, Employer attempted to address Claimant’s arguments, and we will also address

the merits of Claimant’s issues on appeal to the extent we are able. See Richardson v. Pa. Ins.

Dep’t, 54 A.3d 420, 426 (Pa. Cmwlth. 2012) (providing that we may review the cognizable

arguments we can glean from an appellate brief, despite a pro se appellant’s noncompliance with

the Pennsylvania Rules of Appellate Procedure, even if those violations are “egregious,” if they

do not preclude meaningful appellate review).

8

cover up their own wrongdoings.” (Id. at 15-16.) She also asserts that opposing

counsel acted unethically in gossiping with a witness and that her counsel glossed

over it. (Id. at 6.)21

Employer relies on this Court’s decision in Martell v. Workers’ Compensation

Appeal Board (Doyle Equipment), 707 A.2d 242 (Pa. Cmwlth. 1998), for the

proposition that “there is no mandate to remand for a rehearing every time a losing

party can point to some evidence that his or her attorney did not introduce into the

evidentiary record.” (Employer’s Br. at 11.) Employer argues remand is only proper

where “the WCJ’s findings are not supported by substantial evidence or where the

WCJ fails to make findings on a crucial issue,” and because Claimant does not so

allege, her claims must fail. (Id. at 11-12.)

2. Analysis

Early in this Court’s existence, looking to the Fourteenth Amendment of the

United States Constitution, U.S. CONST. amend XIV, and article I, section 9 of the

Pennsylvania Constitution, PA. CONST. art. I, § 9, we observed at the time that the

right “to effective assistance of counsel has never been extended to civil or

administrative proceedings, but rather is limited to a review of criminal

prosecutions.” Johnson v. Workmen’s Comp. Appeal Bd., 321 A.2d 728, 730 (Pa.

Cmwlth. 1974). Given legal developments since then, however, we must qualify

that statement, and now litigants have a right to effective assistance of counsel in

certain other proceedings. For example, since Johnson, our state courts have

recognized the right to effective assistance of counsel, protected by the Fourteenth

Amendment, in various types of proceedings. See, e.g., In re Commitment of

21

Though Claimant asks this Court to reverse the Board, we will deem the requested relief

to be reversal of a denial of rehearing, the relief compatible with her ineffective assistance claims.

(See Employer’s Brief at 10 (proceeding with that understanding).)

9

Hutchinson, 454 A.2d 1008, 1011 (Pa. 1982) (civil commitment); In the Interest of

J.T., 983 A.2d 771, 774-75 (Pa. Super. 2009) (termination of parental rights); In the

Matter of J.P., 573 A.2d 1057, 1061-62 (Pa. Super. 1990) (child dependency). In

the administrative agency context, we have recognized a right to effective assistance

of counsel in a parole revocation proceeding before the Pennsylvania Parole Board.

Hughes v. Pa. Bd. of Prob. & Parole, 534 A.2d 589, 591 (Pa. Cmwlth. 1987) (“It is

beyond dispute that a parolee in a revocation proceeding has a right to effective

assistance of counsel.”).

While the effective assistance of counsel is not “constitutionally mandated”

in the workers’ compensation context, proven incompetency may constitute “cause

shown” for a rehearing under Section 426 of the Act, 77 P.S. § 871.22 Johnson, 321

A.2d at 731. The rehearing provision in Section 426 states, in relevant part, that

“[t]he [B]oard, upon petition of any party and upon cause shown, may grant a

rehearing of any petition upon which the [B]oard has made [a decision].” 77 P.S.

§ 871 (emphasis added).

The Court examined this provision in Johnson, where the claimant’s attorney

and opposing counsel “stipulated to the admission into evidence of medical reports

. . . in lieu of their testimony in person.” 321 A.2d at 729. The referee23 denied the

claimant’s petition, concluding he did not meet his burden of proof and the Board

affirmed. Id. The claimant subsequently retained new counsel and petitioned the

Board for a rehearing on the basis he was denied the effective assistance of counsel,

which the Board denied. Id. at 730. The claimant urged this Court to reverse the

Board’s denial of a rehearing because of his first attorney’s alleged incompetence,

and we declined to do so, reasoning that the attorney’s actions did not amount to

22

Section 426 was added by Section 6 of the Act of June 26, 1919, P.L. 642.

23

WCJs were formerly known as referees.

10

incompetence. Id. Johnson laid the groundwork for our current jurisprudence in

this context. In addition to establishing that proven incompetency may amount to

“cause shown” to warrant a rehearing under Section 426, Johnson established that

an attorney’s mere misjudgment about a strategic choice, which it described as “a

conscious and deliberate decision,” will not be sufficient to warrant a reversal of the

Board’s discretionary decision to deny a rehearing. Id. Rather, Johnson suggests

that a claimant would have to point, as a threshold matter, to objective incompetence.

In the almost 50 years since we decided Johnson, this Court has had occasion

to apply its basic attorney incompetence principles in two key workers’

compensation opinions. The first, Bickel v. Workmen’s Compensation Appeal Board

(Williamsport Sanitary Authority), 538 A.2d 661 (Pa. Cmwlth. 1988), involved a

claimant whose attorney inexplicably failed to present any medical testimony in

support of the claimant’s claim petition despite representing he would do so. Id. at

662. As a result, the referee concluded the claimant did not meet his burden of proof.

Id. The claimant first filed a pro se appeal requesting remand, which the Board

denied, and then, a counseled petition for rehearing on the basis of his original

attorney’s incompetence, which the Board also denied. Id. We affirmed the Board’s

remand denial but reversed the Board’s rehearing denial, reasoning everyone

expected counsel to present the evidence yet “counsel never did present this

testimony, and no reason for his failure appears in the record before us. . . . [I]t

appears that this situation came as a surprise to [the claimant] and that he discharged

his counsel for that reason.” Id. at 663 (emphasis added).24 Indeed, there, we

24

Our parallel analyses in the unemployment compensation and licensing contexts are

similar. See Wilkins v. Unemployment Comp. Bd. of Rev., 502 A.2d 283, 286 (Pa. Cmwlth. 1985)

(finding that an attorney’s decision not to call witnesses due to questionable relevance did not

amount to ineffective assistance sufficient to warrant reconsideration); Rosenthal v. State Bd. of

(Footnote continued on next page…)

11

remarked that the evidence counsel was to present would have been the claimant’s

“only means” of proving his case. Id. (emphasis added). Thus, Bickel stands for

the proposition that “cause shown” under Section 426 may exist where the

incompetence of counsel undermines a claimant’s ability to satisfy its burden of

proof.

The second reported decision on this topic is Martell, the case relied upon by

Employer.25 There, we explained that “the Board has broad discretion to order

rehearing where the interests of justice so require, [but] they do not mandate

rehearing every time a losing party can point to some evidence which his

attorney did not introduce.” 707 A.2d at 244 (emphasis added). We also framed

Bickel26 as involving attorney incompetence resulting in “manifest injustice,”

noting that only extraordinary circumstances lead to a finding of abuse of

discretion on the part of the Board in denying a rehearing. Id. In Martell, Judge

Leadbetter cogently observed that absent that standard, “piecemeal hearings

prompted by the wisdom of hindsight would become the rule rather than the

exception.” Id. Thus, generalizing the principle from Martell, we conclude that, in

Pharm., 457 A.2d 243, 245 (Pa. Cmwlth. 1983) (denying ineffective assistance claim in pharmacy

board context where pharmacist alleged counsel erred in not arguing an entrapment defense and

in saying pharmacist was lax in running his business).

25

Pre-Martell, we applied Johnson and Bickel in Mitchell v. Workmen’s Compensation

Appeal Board (Neal Tree Service), 565 A.2d 224, 226 (Pa. Cmwlth. 1989) (finding that claimant’s

scenario distinguishable from Bickel where an attorney had not entered an appearance and the

claimant failed to appear for a hearing). We also reiterated in Dominijinni v. Workmen’s

Compensation Appeal Board (DeCarlo), 581 A.2d 245, 248 (Pa. Cmwlth. 1990), that rehearing

denial is not an abuse of discretion where the record does not support any suggestion of

incompetence on the part of the attorney.

26

The Martell Court also analyzed two additional cases reversing rehearing denials: Cudo

v. Hallstead Foundry, Inc., 539 A.2d 792 (Pa. 1988), and Moats v. Workmen’s Compensation

Appeal Board (Emerald Mines Corp.), 588 A.2d 116 (Pa. Cmwlth. 1991). Both of those cases

involved after-discovered evidence—not allegations of attorney incompetence.

12

the context of alleged attorney incompetence, we will not reverse the denial of a

rehearing absent a showing of manifest injustice.

Various unreported decisions of this Court have shed further light on what

kind of alleged incompetence will pass muster under our exacting standard.27 See,

e.g., Saied v. Workers’ Comp. Appeal Bd. (Mezies Aviation Grp. (USA), Inc.) (Pa.

Cmwlth., No. 426 C.D. 2020, filed May 26, 2021), slip op. at 25, appeal denied,

(Pa., No. 59 EAL 2022, filed Aug. 23, 2022) (“While [the c]laimant is dissatisfied

that [c]ounsel did not ask him certain questions, required him to testify through a

translator, did not call his wife as a witness, did not submit certain documents, and

did not challenge certain aspects of [a physician’s] testimony on cross-examination,

we agree with [the e]mployer that this does not require a rehearing . . . .”); Price v.

Workers’ Comp. Appeal Bd. (Babb Absence Mgmt. Servs.) (Pa. Cmwlth., No. 364

C.D. 2014, filed Nov. 10, 2014), slip op. at 9 (affirming denial of rehearing where

record evidence, though discredited by WCJ, was sufficient to satisfy the claimant’s

burden of proof; thus attorney’s conduct in not submitting additional evidence did

not amount to manifest injustice). But see Master v. Workers’ Comp. Appeal Bd.

(Laminators, Inc.) (Pa. Cmwlth., No. 1879 C.D. 2012, filed Apr. 30, 2014), slip op.

at 8 (finding ineffective counsel where counsel alleged opposing counsel had misled

him into not offering medical evidence, noting “if counsel was misled and did not

offer medical evidence, he was ineffective; and if he was not misled, he was

ineffective because he did not timely file any medical reports”).

In summary, Johnson, Bickel, and Martell teach, first, that allegations of

attorney incompetence are a rehearing issue under Section 426 of the Act, which

requires “cause shown.” 77 P.S. § 871. Our cases further reveal that for attorney

27

We may cite unreported panel decisions of this Court for their persuasive value pursuant

to Section 414(a) of our Internal Operating Procedures. 210 Pa. Code § 69.414(a).

13

incompetence to amount to “cause shown” in this context, the claimant must satisfy

two elements: (i) objective incompetence on the part of counsel, Johnson, and (ii)

manifest injustice to the claimant flowing from that objective incompetence, Bickel,

Martell.

Claimant’s complaints that her counsel failed to put forth the “positive side”

of her case, did not “point out the discrepancies” in the testimony of Employer’s

witnesses, failed to reveal that the PO had committed perjury, and glossed over

“opposing counsel . . . unethically . . . gossiping with a witness prior to her

testimony” simply do not rise to the level of objective ineffective assistance our cases

require. (Claimant’s Br. at 6.) Indeed, the Martell Court explained, looking to the

record, that the alleged incompetence of counsel “under the circumstances of this

case . . . are as readily explained as strategic decisions as negligence.” 707 A.2d at

244. The same is true here. Several instances of Claimant’s complained-of conduct

can all be explained more readily as strategy than as incompetence. This case

involved more than 40 exhibits, nearly 2 dozen hearings, 5 medical witnesses, and

10 lay witnesses. (WCJ Decision at 2-4.) Accordingly, in an already unwieldy case

where there was already significant risk of confusing the issues, Claimant’s counsel

reasonably could have concluded that further evidence in an already evidence-rich

case could divert the WCJ’s attention from the most important issues. Counsel could

have reasonably concluded that further cross-examination, too, would detract from

the overall message of Claimant’s case, unduly burden the witnesses, and prejudice

Claimant’s case. And finally, counsel could have reasonably concluded that the

“gossiping” of which Claimant complained was not sufficiently egregious or

prejudicial to Claimant’s case to distract from the issues to which counsel wanted to

direct the WCJ’s attention.

14

We also observe that the record belies any suggestion of incompetence. A

thorough review of the record reveals that Claimant’s counsel cross-examined each

of Employer’s witnesses, probing into their stories and attempting to uncover

inconsistencies and corroborate Claimant’s version of events. (See, e.g., 1/14/20

Hearing Transcript (Tr.) at 15, 41-42, 44; 5/29/20 Tr. at 70, 74, and 78; 7/16/20 Tr.

at 46, 48, 61, 64, 69-70, 72, 77.)

Specifically, counsel asked questions which appeared calculated to show bias

or coordination among them, and to prove Claimant’s theory of the case. For

example, counsel asked Claimant’s coworker whether anyone had prepared her or

whether she had spoken with Employer’s HR director prior to testifying. (5/29/20

Tr. at 30-31.) Counsel attempted to impeach the witness by suggesting she had

known Claimant longer than she originally claimed. (Id. at 38.) And counsel tried

to elicit testimony from her that would tend to corroborate Claimant’s allegations of

work-related emotional distress. (Id. at 46.) Counsel also confronted the County

election official about the alleged “gossiping.” (Id. at 32.)

Counsel also defended the depositions of Employer’s medical experts. The

record reveals active questioning and participation in each on the part of Claimant’s

counsel in the defense of those depositions. (See, e.g., Dep. of Dr. DiBenedetto, at

15-16 (probing percentage of defense-side Independent Medical Exam (IME) work

performed in connection with his qualifications), and at 57-63 (cross-examining Dr.

DiBenedetto); See also Dep. of Dr. Rieger at 12-16; 47-57 (same).)

Moreover, the extensive and detailed proposed findings of fact and

conclusions of law prepared by counsel, though ultimately unsuccessful in

persuading the WCJ, reflected diligence on the part of counsel, and at a minimum

reflected an attempt to cast light on the “positive side” of Claimant’s case. (See

15

generally Claimant’s Br. in Support of Pending Claim Petitions and Proposed

Findings of Fact, Conclusions of Law, Summary, and Order, C.R. Item 150.) Put

simply, far from revealing objective incompetence, the record shows diligent

lawyering.

As the Board explained:

[I]t is apparent from the 10 lay witness testimonies obtained,

numerous hearings devoted to Claimant’s testimony, multiple

medical experts deposed, and multitudinous exhibits entered on the

record over a three[-]and[-]a[-]half year period of litigating, that

Claimant’s counsel did his due diligence, made every attempt to

chase down evidence, and spared no expense in advocating for

Claimant, despite an unsuccessful outcome.

(Board Op. at 19-20.)

Although counsel may not have presented every piece of evidence available

or cross-examined witnesses to Claimant’s satisfaction, as discussed above,

rehearing is not required “every time a losing party can point to some evidence which

[her] attorney did not introduce.” Martell, 707 A.2d at 244. Accordingly, no

manifest injustice resulted from the Board’s denial of rehearing. Simply put, our

cases require objective incompetence of counsel and a resulting manifest injustice

for us to find the Board abused its discretion in denying a rehearing on the basis of

alleged attorney incompetence. Because the record reveals no objective

incompetence, and no indication of manifest injustice, we find that the Board’s

denial of a rehearing does not amount to an abuse of discretion.

C. Unenforceable Subpoenas

1. Parties’ Arguments

Claimant next asks, “Why was testimony allowed from individuals with no

personal knowledge of [Claimant], while a subpoena for their paperwork had been

16

deemed unenforceable? The [WCJ] allowed the testimony.” (Claimant’s Br. at 6.)

Claimant does not provide legal support for this claim but seems to argue that the

WCJ erred in considering the Tioga County Prison officers’ testimony when a

subpoena related to their testimony had been deemed unenforceable because the

documents “had nothing to do with [C]laimant.” (Id. at 16.) Employer does not

seem to directly respond to this argument; however, it suggests that the effect of the

information in any of the subpoenaed documents on the WCJ’s credibility

determinations is “purely speculative.” (Employer’s Br. at 17.)

2. Analysis

WCJs enjoy broad discretion regarding evidentiary decisions. Bristol

Borough v. Workers’ Comp. Appeal Bd. (Burnett), 206 A.3d 585, 616 (Pa. Cmwlth.

2019). “Commonwealth agencies are not bound by the technical rules of evidence

. . . and all relevant evidence of reasonably probative value may be received.” Id.

(citing Section 505 of the Administrative Agency Law, 2 Pa.C.S. § 505). Section

505 of the Administrative Agency Law “has been properly interpreted to permit a

relaxation of the strict rules of evidence in . . . hearings and proceedings, including

those held by a WCJ.” Id. Where sufficient evidence supports a WCJ’s findings,

despite the WCJ having considered additional and possibly irrelevant testimony, we

have found such testimony to be “mere surplusage and at best harmless error.”

Haverford Township v. Workmen’s Comp. Appeal Bd. (Angstadt), 545 A.2d 971,

974 (Pa. Cmwlth. 1988). In addition, we have said that an abuse of discretion will

amount to harmless error where it does not affect an “ultimate decision” in the case.

Herman v. Workmen’s Comp. Appeal Bd. (Fayette Cnty.), 439 A.2d 834, 836 (Pa.

Cmwlth. 1981).

17

The voluminous record and many side issues in this case can easily distract

from the ultimate issue, which is whether either or both of Claimant’s injuries were

work related and thereby compensable under the Act. A brief review of the law

makes clear that—even if the WCJ abused his discretion in considering the Tioga

County Prison officers’ depositions, inclusion of that testimony amounted to

harmless error because it was not outcome determinative. For a physical injury to

be compensable, it must have occurred during the course and scope of employment

and must be causally connected to the employment. Jeannette Dist. Mem’l Hosp. v.

Workmen’s Comp. Appeal Bd. (Mesich), 668 A.2d 249, 252 (Pa. Cmwlth. 1995).

For a mental injury to be compensable under the Act, it must either be causally

related to a work-related physical injury (i.e., physical-mental), or causally related

to abnormal working conditions or a work-related psychic stimulus (i.e., mental-

mental). Ryan v. Workmen’s Comp. Appeal Bd. (Cmty. Health Servs.), 707 A.2d

1130, 1333-34 (Pa. 1998). The physical and physical-mental categories are clearly

not implicated here where the WCJ found that the physical injury (i.e., hip injury)

for which Claimant seeks compensation under the Act is not work related. (See FOF

¶ 292; Board Op. at 16.) Thus, in order for her anxiety disorder and panic attacks to

be compensable, Claimant would have to prevail under the mental-mental standard.

However, the WCJ found that no County employee engaged in harassing behavior.

(See FOF ¶¶ 295, 296; Board Op. at 17) (explaining that Claimant “failed to present

credible testimony to meet all the elements for either [the physical-mental or mental-

mental] burden”).) So, although the WCJ found that Claimant suffered from panic

attacks and anxiety, there was not credible evidence to support a finding that a work-

related psychic stimulus or abnormal working conditions in the course and scope

of her employment caused that injury. The treatment of Claimant’s husband while

18

incarcerated in a different county and/or the veracity of the officers there does not

appear to have any bearing on whether abnormal working conditions existed at her

workplace, which would be necessary under the Act.

We do find it unclear why the WCJ would have permitted their testimony in

the first instance given its attenuated and tangential nature. However, even if it was

an abuse of discretion to consider the testimony, we conclude that it amounted to

mere surplusage, and thus harmless error, because it did not bear on the essential

issue in the case, namely, whether Claimant had suffered injuries compensable under

the Act.

Finally, to the extent we could understand Claimant’s argument on this point

to be that her counsel was ineffective for failing to press the subpoena issue further,

we would reiterate our reasoning above that such a decision can more readily be

explained as strategy than incompetence.

III. CONCLUSION

Based on the foregoing, we affirm the Order of the Board.

__________________________________________

RENÉE COHN JUBELIRER, President Judge

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kelly A. Finck, :

Petitioner :

:

v. : No. 1029 C.D. 2022

:

Union County Commissioners :

(Workers’ Compensation Appeal :

Board), :

Respondent :

ORDER

NOW, December 18, 2023, the Order of the Workers’ Compensation Appeal

Board, dated July 22, 2022, is AFFIRMED.

__________________________________________

RENÉE COHN JUBELIRER, President Judge