West Penn Allegheny Health System, Inc. and BrickStreet v. WCAB (Cochenour); 85 C.D. 2020; filed Apr. 16, 2021; Judge Fizzano Cannon

Finding of disabling, work-related injury not based on impermissible speculation as judge believed claimant and found sufficient corroborative evidence in record to support testimony; employer entitled to credit for gross short-term disability benefits.

In this case, the claimant reported sustaining work-related injuries to her neck and back as a result of an incident that occurred while she was on the employer’s parking shuttle. The employer issued a Medical-Only Notice of Temporary Compensation Payable (NTCP). Later, the claimant filed a claim petition, requesting payment of temporary total disability benefits for cervical, thoracic and lumbar spine injuries.

According to the claimant, on the morning of September 14, 2016, she was travelling to her job at the hospital in an employer-provided shuttle bus from the parking garage. She alleged that during the ride, the bus turned a corner to the left, hit a curb, bounced across the lanes in the street and hit another curb. Although the claimant did not immediately feel any symptoms, two days later, while not working, she experienced symptoms in her legs, arms, neck and head. The claimant then reported the incident to the employer.

The employer presented a litany of witnesses in an attempt to establish that the incident the claimant alleged to have happened did not occur. The witnesses included two representatives of the shuttle company, who testified that they pulled video footage from the shuttle matching the claimant’s description of the driver and no injury was observed. The employer also presented two shuttle drivers, both of whom said they could not recall an incident matching the claimant’s description occurring on September 14, 2016. One of the drivers said that if an incident happened, it would have shown up on camera and would have been reported, particularly if there was vehicle damage.

The Workers’ Compensation Judge said at a hearing that he viewed video of the shuttle runs and did not detect an incident that corresponded to the claimant’s description. However, the judge granted the claim petition and awarded the claimant benefits. The judge further found the employer was entitled to a credit against the net amount of short-term and long-term disability benefits the claimant received, not the gross amount the employer paid. The Workers’ Compensation Appeal Board affirmed.

On appeal to the Commonwealth Court, the employer argued that the Workers’ Compensation Judge’s finding that the claimant sustained a disabling, work-related injury was not based on substantial competent evidence but, rather, on speculation. The employer acknowledged that the judge found the claimant’s testimony of the incident to be credible, but maintained that the judge wrongly ignored evidence to the contrary in order to come up with an alternative theory to award benefits. The court disagreed and dismissed the employer’s appeal on this issue. According to the court, it was the claimant’s burden to prove that she sustained a work-related, disabling injury and that, in the end, the judge found sufficient corroborative evidence in the record to support her testimony. The court did not consider this to be judicial speculation but, rather, a balanced consideration of all of the evidence at hand.

The court did reverse the underlying decisions as to the employer’s credit for short- and long-term disability benefits paid to the claimant, holding the employer was entitled to a credit for the gross pre-tax amount in non-pension disability payments, pending adjudication of a claim petition.


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