In This Issue  6/11/15
  • "I'm Not Quite Dead Yet"*

Workers' Comp Express Law Update



"I'm Not Quite Dead Yet"*

Our own John Kennedy, Esquire, triumphed in the face of a "bad" IME in the unreported Commonwealth Court decision issued June 9, 2015 Craig Guest v. Workers' Compensation Appeal Board (Jewish Home of Eastern Pennsylvania), No. 1398 C.D. 2014.

On May 18, 2010, Claimant, a maintenance worker at a nursing home, informed the Assistant Director of Maintenance that he experienced hip pain during his work day. Contrary to the advice of the Assistant Director of Maintenance, Claimant did not notify their Supervisor of the alleged injury.

Nonetheless, Claimant filed a claim petition alleging that the pain in his hip was caused by his work duties, which he said included both lifting heavy objects and sitting on the concrete floor for long periods of time to repair wheelchairs and walkers.

Claimant's treating doctor diagnosed him with right iliac bone stress fracture resulting from his work duties.

Employer submitted testimony from both of Claimant's supervisors, which the WCJ found fully credible. The Assistant Director of Maintenance confirmed that Claimant decided not to inform their Supervisor of his pain, and testified that Claimant had said "I didn't hurt myself here." The Supervisor, in turn, testified that an employee's work duties did not include sitting on the floor to repair wheelchairs and that virtually none of the employees ever did so. Pursuant to this testimony, the WCJ found that Claimant's scope of work did NOT involve sitting on concrete floors or heavy lifting.

Accordingly, the WCJ rejected the treating physician's causation theory because it was predicated on an incorrect understanding of Claimant's work duties. 

However, the Employer's IME recognized a possible relationship between Claimant's injury and his job duties.  John, however, chose not to introduce this medical evidence, relying instead on strong fact testimony. Likewise, Claimant's counsel never introduced the Employer's IME report into evidence.

Initially, the WCJ denied Claimant's claim petition, holding that Claimant failed to prove he had sustained a work injury.  On appeal to the WCAB, Claimant argued that the WCJ failed to consider Employer's IME report and erroneously rejected, in part, medical evidence from his treating physician.

The WCAB rejected both of these arguments, and Claimant appealed to the Commonwealth Court of Pennsylvania.

In his appeal, Claimant argued that the WCJ improperly failed to consider the Employer's IME report. Notably, however, Claimant's counsel had never moved to admit the IME report as evidence at the administrative level, even though it was discussed during the final hearing on March 3, 2011, and subsequently referenced in and attached to Claimant's written submission to the WCJ.

The Commonwealth Court reiterated the well-established rule that documentary evidence must be offered and admitted as an exhibit by the WCJ during an on-the-record proceeding. The Court further affirmed that the WCJ properly rejected Claimant's medical evidence.  Accordingly, the Court affirmed the WCAB and WCJ decisions on the matter.

Bottom line: Don't give in too early when "you are not quite dead yet." It would have been very easy, but a disservice to the Employer, to resolve based simply on the "bad" IME.


Craig Guest v. Workers' Compensation Appeal Board (Jewish Home of Eastern Pennsylvania),

No. 1398 C.D. 2014; Decided: June 9, 2015; Opinion by: Judge Leavitt

*Monty Python And The Holy Grail

Joseph E. Vaughan, Esquire
(267) 386-4350



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