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Fontana v. Workers' Compensation Appeal Board2/21/2002
Submitted: December 21, 2001
OPINION NOT REPORTED
Thomas Fontana (Fontana) petitions for review of an order of the Workers' Compensation Appeal Board (Board), which amended in part and affirmed in part the decision of a Workers' Compensation Judge (WCJ) denying Fontana's claim petition and denying attorney costs and fees.
On July 16, 1998, Fontana filed a claim petition alleging that on May 29, 1997, while in the course and scope of his employment as a manager of international operations for Pittsburgh Logistics Systems, Inc. (Employer), he suffered a heart attack as a result of work-related stress. Employer filed an answer denying the allegations in the claim petition.
After conducting hearings, and reviewing the evidence submitted, the WCJ concluded that Fontana failed to meet his evidentiary burden of proving that his May 29, 1997 heart attack was causally related to his job with Employer. Accordingly, on July 12, 2000, the WCJ issued his decision denying Fontana's claim petition and denying the claim for an award of attorney costs and fees.
Fontana appealed, and the Board, on or about July 10, 2001, amended the WCJ's decision by directing Employer to pay Fontana's counsel's reasonable expenses for attending a deposition of Employer's medical witness, David M. Leaman, M.D., in Hershey, Pennsylvania. In all other respects, the Board affirmed the WCJ's decision. This appeal followed.
On appeal Fontana argues that the Board erred in affirming the WCJ's determination that the testimony of Fontana's treating physician, Robert Shogry, M.D., was equivocal, based upon the latter's admissions that Fontana was at risk for a heart attack as a result of non work-related risk factors, and that Fontana may have sustained a heart attack without work-related stress. In this regard, Fontana contends that the Board erred in view of this Court's position that a showing of a medical witness's "unqualified medical certainty" is not required in a heart attack case such as his. Fontana also challenges the Board's affirmance of the WCJ's discrediting of Dr. Shogry for allegedly failing to reference work-related stress in Fontana's medical records, and he maintains that this finding was unsupported by substantial competent evidence.
Additionally, Fontana takes issue with the Board's affirmance of the WCJ's decision to allow Employer to conduct a records review and depose Dr. David Leaman, when Fontana had already gone through an independent medical examination by Dr. Calvelo. Fontana also disputes the Board's affirmance of the WCJ's decision crediting the medical testimony of David M. Leaman, M.D., who testified that emotional stress cannot be the causative factor of a heart attack, in contravention, according to Fontana, of established case law. Similarly, Fontana avers that the Board erred in affirming the WCJ's discrediting, as "lacking a scientific basis," the medical report of Manuel G. Calvelo, M.D., who conducted an independent medical examination for Employer and who concluded that Fontana's heart attack was work related. Finally, Fontana maintains that the WCJ failed to issue a reasoned decision pursuant to Section 422(a) of the Workers' Compensation Act (Act), and failed to find that Employer had engaged in an unreasonable contest by presenting what Fontana alleges to be a post hoc defense based upon the impermissible records review conducted by Dr. Leaman.
It has consistently been held that the burden is on the claimant to establish all elements necessary to support an award of workers' compensation benefits. Cardyn v. Workmen's Compensation Appeal Board (Heppenstall Company), 517 Pa. 98, 534 A.2d 1389 (1987). The WCJ c
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