IN THE COMMONWEALTH COURT OF PENNSYLVANIA

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1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Lamine M. Kromah, Petitioner v. Workers Compensation Appeal Board (Towne Park Valet Service), No C.D Respondent Submitted June 14, 2013 BEFORE HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE COVEY FILED July 25, 2013 Lamine M. Kromah (Claimant), pro se, petitions this Court for review of the Workers Compensation Appeal Board s (Board) November 7, 2012 order affirming the Workers Compensation Judge s (WCJ) decision granting Claimant s Claim Petition from May 1, 2009 through January 8, Claimant essentially presents two issues for this Court s review (1) whether the WCJ s findings of fact were supported by substantial, competent evidence, and (2) whether the WCJ disregarded Claimant s evidence. 1 We affirm. On May 1, 2009, Claimant was employed by Towne Park Valet Service (Employer) when he suffered work-related injuries in the nature of thoracic and lumbar strain. As a result of his injuries, Claimant filed a Claim Petition on May 22, 1 Claimant also avers that the Cover Letter to the WCJ s Decision Rendered lists a November 4, 2010 hearing, with no record, when no hearing was held. There is no reference to such a hearing anywhere else in the record, and it appears that if such a hearing occurred it was not a basis for the WCJ s or the Board s decisions, thus, there is no need to address this assertion.

2 2009. On June 2, 2009, Employer issued a Notice of Compensation Denial (NCD). The WCJ held a hearing on March 23, 2010 and, on December 16, 2010, the WCJ granted the Claim Petition, concluding that Claimant met his burden of proving that he was entitled to workers compensation benefits between May 1, 2009 and January 8, The WCJ further found that Employer met its burden of proving that as of January 8, 2010, Claimant was fully recovered from his work injuries. Claimant appealed to the Board. On November 7, 2012, the Board affirmed the WCJ s decision. Claimant appealed to this Court. 2 Claimant argues that the WCJ based her opinion on findings of fact 27 and 29 which are not supported by substantial record evidence, thus the WCJ erred. We disagree. Substantial evidence has been defined as such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Jacobi v. Workers Comp. Appeal Bd. (Wawa, Inc.), 942 A.2d 263, 268 n.7 (Pa. Cmwlth. 2008). It 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. Delaware Cnty. v. Workers Comp. Appeal Bd. (Baxter Coles), 808 A.2d 965, 969 (Pa. Cmwlth. 2002). The WCJ s finding of fact 27 states in pertinent part Claimant testified that he had an operation in March In this operation, Dr. Garino performed a right hip replacement. WCJ s Dec. at 5. Claimant asserts in his brief This is totally untrue. I never underwent any operation and I have never had hip replacement in my whole life[;] neither did [I] mention at any time that my hip [was] replaced. 2 This Court s scope and standard of 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. World Kitchen, Inc. v. Workers Comp. Appeal Bd. (Rideout), 981 A.2d 342, 346 n.5 (Pa. Cmwlth. 2009). 2

3 Claimant s Br. at 11. However, at the WCJ hearing, during questioning by his attorney, Claimant testified as follows Q. Did you have an operation? A. Yes. Q. When did you have an operation? A. Operation was in March. Q. Of 2009? A. Yes. Q. Who performed the operation? A. Dr. Garino. Q. And what was your understanding of what the operation was to do? A. Hip replacement. Q. Which side? A. Right. Q. Was that operation done? A. Yes. Notes of testimony, March 23, 2010 (N.T.) at 8. Claimant s testimony establishes that finding of fact 27 is based on substantial record evidence. Finding of fact 29 provides It was at the final hearing on March 23, 2010 that Claimant handed to his attorney something he had never seen before, a copy of the second EMG/NCV study report. Leave was granted to Employer to give [F. Todd Wetzel, M.D.] Dr. Wetzel an opportunity to write a report and comment on the second EMG/NCV study. However, no updated report from Dr. Wetzel was submitted. Of note, that second EMG/NCV study was performed before Dr. Wetzel examined Claimant. 3

4 WCJ s Dec. at 5. Claimant contends in his brief that [t]he judge erred in finding Dr. Wetzel credible for the fact that he never reviewed the diagnostic studies. And erred that [Claimant] handed something to [his] attorney something he never saw before. Claimant s Br. at 12. hearing The record reveals the following exchange took place at the WCJ Mr. Stern [Claimant s counsel] In addition, [Claimant] just handed me something I ve never seen before, which is an updated EMG. I don t know whether this has been previously provided in discovery. Mr. Maranzini [Employer s counsel] Has not. Mr. Stern [Claimant s counsel] Well, I would like leave to get a copy of this and submit it in support of our limited claim and provide it to counsel, of course. Judge Goodwin [WCJ] Okay, I think that s fair. Mr. Maranzini [Employer s counsel] And I would also like leave to have Dr. Wetzel have an opportunity, if necessary, to Judge Goodwin [WCJ] Comment on it? Mr. Maranzini [Employer s counsel] Comment on it, correct. Judge Goodwin [WCJ] Write a report? Mr. Maranzini [Employer s counsel] Yes. Mr. Stern [Claimant s counsel] I have no problem with that..... Mr. Maranzini [Employer s counsel] Well, I haven t even seen the report, it may not be necessary or it may. 4

5 N.T. at The above exchange establishes that finding of fact 29 is based on substantial record evidence. Further, [i]t is well established that the WCJ is the ultimate fact finder and is empowered to determine witness credibility and evidentiary weight. Shannopin Mining Co. v. Workers Comp. Appeal Bd. (Sereg), 11 A.3d 623, 627 (Pa. Cmwlth. 2011) (quoting Griffiths v. Workers Comp. Appeal Bd. (Red Lobster), 760 A.2d 72, 76 (Pa. Cmwlth. 2000)). Clearly, Employer did not find it necessary for Dr. Wetzel to submit an updated report and it was up to the WCJ to determine the evidentiary weight of that decision. Because findings of fact 27 and 29 are supported by substantial record evidence, the WCJ did not err. Claimant next argues that the WCJ and the Board improperly refused to accept the medical reports of Dr. Sanjay Gupta, with whom Claimant began treatment after the March 23, 2010 hearing. We disagree. While it is hard to decipher Claimant s complete argument, it appears he is alleging that, in May 2010 he attempted to submit two reports to the WCJ dated May 5 and 14, 2010, which the WCJ rejected as untimely even though the record was not closed until July 15, However, there is no record evidence of the submissions, nor their rejection. Moreover, Claimant did not mention the WCJ s evidence rejection in his December 10, 2010 appeal to the Board, nor was this evidence included in Claimant s submissions to the WCJ after the March 23, 2010 hearing, i.e., Exhibits C-4 through C-8 were submitted by mail between April 14, 2010 and July 21, WCJ s Dec. Cover Letter at 2. The only evidence of the two reports is their inclusion in Claimant s brief. It is beyond cavil that an appellate court is limited to considering only those facts which have been duly certified in the record on appeal. Pugh v. Workers Comp. Appeal Bd. (Transpersonnel, Inc.), The two July 21, 2010 submissions were Act 109 documents (Claimant s certification that there is no outstanding child support order against him), and updated litigation costs, hence their acceptance after the July 15, 2010 deadline. 5

6 A.2d 641, 645 n.7 (Pa. Cmwlth. 2004). Accordingly, Claimant s assertion that the WCJ improperly refused the reports lacks merit. Claimant also contends that the Board should have remanded the matter to include Dr. Gupta s July 2, 2010 report. The Board may remand cases to the WCJ, however, only when the findings of the WCJ are not supported by competent evidence or when the WCJ has failed to make a finding on a crucial issue. Neither of these circumstances is present in this case. Martell v. Workers Comp. Appeal Bd. (Doyle Equip.), 707 A.2d 242, 244 (Pa. Cmwlth. 1998) (citation omitted). Here, the purpose of the remand request was to include the July 2, 2010 report which was available prior to the July 15, 2010 deadline and should have been submitted by mailing it to the WCJ with Exhibits C-4 through C-8. Thus, the Board s denial of remand was proper. For all of the above reasons, the Board s order is affirmed. ANNE E. COVEY, Judge 6

7 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Lamine M. Kromah, Petitioner v. Workers Compensation Appeal Board (Towne Park Valet Service), No C.D Respondent O R D E R AND NOW, this 25 th day of July, 2013, the Workers Compensation Appeal Board s November 7, 2012 order is affirmed. ANNE E. COVEY, Judge

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