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Haskell v. Workers' Compensation Appeal Board6/12/2002
Timothy Haskell (Claimant) petitions this Court for review of an order of the Workers' Compensation Appeal Board (Board) that affirmed a decision of a workers' compensation judge (WCJ) granting Claimant's claim petition for a closed period of time. We affirm.
Claimant filed a claim petition alleging that on December 23, 1996 he sustained work-related injuries to his back while in the course of his employment as a welder with the R.A. Davis Company, Inc. (Employer). The matter was heard before a WCJ, together with two utilization review petitions from a provider that had treated Claimant with physical therapy. Claimant testified and presented, among other evidence, the deposition testimony of Robert S. Vandrak, D.O. Employer presented, among other evidence, the deposition testimony of Michael Weiss, M.D., Richard Liedke, M.D., Julie Hilliard, and Reno A. Davis.
Dr. Vandrak testified with regard to his examination and treatment of Claimant's injuries. He opined that because of these injuries, Claimant was incapable of performing any gainful work at all. Dr. Weiss testified that he examined Claimant on July 26. 1997 and determined that Claimant was capable of returning to modified duty. Dr. Weiss further testified that if not for Claimant's subjective complaints, he would have released Claimant to perform his pre-injury job. Dr. Liedke testified that Claimant sought treatment with him after the work injury. Dr. Liedke released Claimant for modified work, to which Claimant returned on December 28, 1996, five days after the work injury. Dr. Liedke continued to release Claimant for modified employment through January and February 1997.
Ms. Hilliard, an executive assistant with Employer, testified that modified work was made available to Claimant in accordance with Dr. Liedke's release. She also described Employer's "calling off work" procedures and Claimant's failure to abide by them while on modified duty. Mr. Davis, Employer's owner, also testified regarding the modified employment made available to Claimant and the termination of his employment on February 4, 1997 because of excessive unexcused absences and because of his alteration of a prescription for medication designed to treat his work injury.
The WCJ found Dr. Vandrak's testimony to be not credible with regard to his opinion that Claimant was not capable of performing light-duty work. He also found the testimony of Dr. Liedke, Ms. Hilliard, and Mr. Reno to be credible in their entirety. Based on these credibility determinations and other evidence, the WCJ concluded that Claimant carried his burden of proving his eligibility for disability benefits from December 24, 1996 until February 4, 1997, at which point Claimant's benefits were suspended because his wage loss was attributable not to the work injury but to his being terminated for cause. The Board affirmed, and this petition for review followed.
This Court's scope of review is limited to determining whether the WCJ's necessary findings of fact are supported by substantial evidence, or whether an error of law or a constitutional violation occurred. Columbo v. Workmen's Compensation Appeal Board (Hofmann), 638 A.2d 477 (Pa. Cmwlth. 1994). The WCJ is the sole arbiter of the credibility of testimony and other evidence, and he or she is free to reject or accept the testimony of any witness in whole or in part. Id. So long as the findings of the WCJ are supported by substantial evidence, they must be accepted as conclusive. Id.
Claimant argues (1) that the WCJ erred by drawing an adverse inference from Claimant's invocation of Fifth Amendment rights in refusing to answer a question regarding his alleged alteration of a pharmaceu
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