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McKenna v. Workers' Compensation Appeal Board12/9/2005
not make factual findings supporting his conclusion that Claimant's injury was sustained during the course of employment. Additionally, the Board concluded that WCJ Decision I did not address whether Employer had met its burden of establishing that the injury was due to personal animus between Claimant and the offending officer. Lastly, the Board found that the WCJ did not address the credibility of any of Employer's witnesses. The Board remanded the case with directions:
for the WCJ to make additional Findings of Fact addressing whether Claimant's injuries were sustained in the course and scope of employment and to provide the reasons for his conclusion that Claimant's injury is compensable. The WCJ shall also make credibility determinations identifying the credible evidence.
(Board Decision I at 4.)
Pursuant to the Board's remand Order, the WCJ made credibility determinations as to Employer's witnesses. In WCJ Decision II, the WCJ made the following relevant factual findings that were not made in WCJ Decision I:
(1) Claimant was credible that he was involved in an altercation with Officer Seeger; (2) Claimant was not credible that Officer Seeger shoved Claimant; (3) Claimant was not credible that he injured his left wrist in the incident with Officer Seeger; (4) there is no evidence that the incident was unrelated to work; (5) all of Employer's witnesses were credible; and (6) all of Employer's witnesses testified that they did not see Officer Seeger shove Claimant and that they did not see Claimant's left wrist strike any surface. Based on these credibility determinations, the WCJ concluded that Claimant did not sustain a work-related injury, and the Board affirmed. Claimant appeals the Board's decision.
Preliminarily we note the applicable burdens of proof and our standard of review. In every claim petition case, the burden is on the claimant to establish all elements necessary to support an award. Ruhl v. Workmen's Comp. Appeal Bd. (Mac-It Parts, Inc.), 611 A.2d 327, 329 (Pa. Cmwlth. 1992), pet. for allowance of appeal denied, 533 Pa. 620, 619 A.2d 701 (1993). A claimant must establish through the production of evidence, whether testimonial or documentary, that: 1) he sustained a work-related injury and 2) the work-related injury caused his disability. Id. There is a rebuttable presumption that an injury is work-related when it is caused by another employee and it occurs on the work premises. Wills Eye Hosp. v. Workmen's Comp. Appeal Bd. (DeWaele), 582 A.2d 39 (Pa. Cmwlth. 1988), aff'd per curiam, 525 Pa. 504, 582 A.2d 857 (1990); Helm v. Workmen's Comp. Appeal Bd. (U.S. Gypsum Co.), 591 A.2d 8 (Pa. Cmwlth. 1991). To rebut this presumption, the employer must prove that the claimant's injury was caused by a third person who intended to injure the claimant for personal reasons. Helm.
In determining whether these burdens have been met, issues regarding the weight given to the evidence and the credibility of witnesses are within the sole province of the WCJ. Lombardo v. Workers' Comp. Appeal Bd. (Topps Company, Inc.), 698 A.2d 1378, 1381 (Pa. Cmwlth. 1997), pet. for allowance of appeal denied, 553 Pa. 701, 718 A.2d 787 (1998). As fact finder, the WCJ is free to accept or reject the testimony of any witness in whole or in part. Id.
Our standard of review is limited to determining whether there has been a violation of constitutional rights, an error of law or whether necessary findings of fact are supported by substantial evidence. Bailey v. Workers' Comp. Appeal Bd. (US Airways), 865 A.2d 319, 321 n.2 (Pa. Cmwlth. 2005), pet. for allowance of appeal denied, ___ Pa. ___, 882 A.2d 1006 (2005).
Claimant raises two p
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