IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kelly A. Finck, :

Petitioner :

 :

v. : No. 1029 C.D. 2022

 : Submitted: April 28, 2023

Union County Commissioners :

(Workers’ Compensation Appeal :

Board), :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE LORI A. DUMAS, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

PRESIDENT JUDGE COHN JUBELIRER FILED: December 18, 2023

Kelly A. Finck (Claimant), pro se, petitions for review of the July 22, 2022 

Order of the Workers’ Compensation Appeal Board (Board) that affirmed a decision 

of the Workers’ Compensation Judge (WCJ), denying and dismissing her two claim 

petitions. On appeal, Claimant argues ineffective assistance of counsel1 and that the 

WCJ abused his discretion with regard to an evidentiary ruling by considering

irrelevant evidence.

2

 After careful review, we affirm.

1 We note that the record shows that three attorneys of the same firm participated in the 

representation of Claimant. Claimant does not distinguish between them in her brief. Accordingly, 

neither will we. Rather, we will, to the extent relevant, examine their representation of Claimant 

in the aggregate, referring to them throughout the opinion simply as “Claimant’s counsel.”

2 We have combined and reordered Claimant’s arguments for ease of discussion. 
2

I. BACKGROUND

A. Procedural & Factual Background3

On October 30, 2016, Claimant allegedly slipped and fell on a wet floor while 

working as a cook, injuring her hip. (WCJ Decision, Findings of Fact (FOF) ¶¶ 1, 

10-11.) Initially, Claimant’s employer, Union County Commissioners (County or 

Employer), issued a Notice of Temporary Compensation Payable on November 21, 

2016, describing the injury as a right hip sprain. (Id. ¶ 4.) It subsequently issued a

Notice Stopping Temporary Compensation Payable and a Notice of Workers’

Compensation Denial on January 26, 2017, based on alleged noncompliance with 

medical treatment. (Id. ¶¶ 5-6.) As a result, Claimant filed her first claim petition 

on February 10, 2017. (Certified Record (C.R.) Item 2.) 

Thereafter, Employer offered Claimant a light-duty, part-time position as a 

receptionist, and Claimant worked in that capacity from August 24 until October 10, 

2017. (FOF ¶¶ 41, 43, 47.) Prior to returning to light-duty work, Claimant’s husband 

was convicted of an election-related offense and sentenced to a period of 

incarceration. (Id. ¶¶ 31, 32, 43.) The light-duty position Claimant was assigned 

was located just outside the election board’s office, and, as a result, Claimant had 

frequent contact with individuals she blamed for her husband’s arrest. (Id. ¶¶ 43, 

47, 131; see also Exhibit (Ex.) D-11 (Floor Plan of Union County Government 

Center), C.R. Item 60.)4 On April 11, 2018, Claimant filed a second claim petition,

pro se, alleging “anxiety disorder and panic attacks caused by actions of other [] 

County employees.” (FOF ¶ 2; C.R. Item 58.) The WCJ consolidated the two 

3 While Claimant originally challenged some findings of fact before the Board, Claimant 

no longer pursues those before this Court. Thus, we treat those findings as undisputed. 

4 Because the two claim petitions were consolidated, the Certified Record contains 

duplicates of certain items, such as transcripts and exhibits, which were separately docketed for 

each claim petition. For convenience, we cite only to the first instance of a given item.
3

petitions, and multiple hearings were held at which Claimant appeared pro se for 

some and was represented by her counsel for others. 

Claimant testified

5

she was displeased with the light-duty placement and 

asked Human Resources (HR) to place her anywhere else because of its proximity 

to the election board’s office. (FOF ¶¶ 43, 44, 131, 136.) During the almost two 

months she worked in that capacity, she testified that she experienced stress due to 

comments other employees would make, including comments from an election 

board employee who had testified against her husband at his criminal trial. (Id. ¶ 

47.) Claimant also indicated that her husband’s probation officer (PO), also a 

County employee, searched her house twice, released her medical information, 

threatened her husband, and accused her of lying. (Id. ¶¶ 48-50.) 

Claimant testified that these interactions, coupled with her husband’s release 

from incarceration with bruises and abrasions, caused anxiety and panic attacks. (Id.

¶¶ 50, 100.) The first severe panic attack, according to Claimant, came after a 

telephone call with the PO in which he allegedly threatened her. (Id. ¶¶ 51, 126.) 

According to Claimant, it became clear to her that the PO also had access to her 

personnel records and medical information. (Id. ¶ 54.) 

In addition, Claimant’s husband testified about his interactions with Tioga 

County prison officers, his interactions with the PO, and his wife’s condition.6 

Claimant’s counsel also deposed Mahmood Nasir, M.D., a pain management 

5 Claimant testified at the April 18, 2017, September 5, 2018, October 31, 2018, December 

18, 2018, January 24, 2019, March 14, 2019, and September 8, 2020 hearings, transcripts of which 

can found in the Certified Record at Items 11, 15, 16, 17, 18, 19, and 29, and her testimony is 

summarized in Findings of Fact 8-22, 39-85, 88-108, 109-15, 116-27, 128-41, and 142-55.

6 Claimant’s husband testified at the September 8, 2020 hearing and his testimony is 

summarized in Findings of Fact 157-73.
4

specialist and neurologist with whom she treated for the hip injury,

7 and Jeffrey A. 

Gold, Ph.D., a licensed psychologist with whom she treated for the anxiety and panic 

attacks.

8

 Dr. Nasir testified that, in his opinion, the hip injury was work related. (Id.

¶ 237.) Dr. Gold testified that, in his opinion, Claimant’s psychological condition 

“w[as] related to Claimant’s pain because it was a stressor” but was mostly caused 

by “anxiety related to [E]mployer and the interactions they [sic] had with her.” (Id.

¶ 254.) Dr. Gold also testified that Claimant came to him on a referral from her 

counsel. (Id. ¶ 242.) When asked who sent her to Dr. Gold, Claimant stated that she 

could not recall. (Id. ¶ 72.)

Employer called County employees who interacted with Claimant, 

specifically the PO,9 an election board official,10 a coworker of Claimant,

11 and 

Employer’s HR director,

12 who, overall, testified that they did not engage in the 

harassing behavior alleged by Claimant. (See, e.g., id. ¶¶ 179; 181; 186; 203-04;

212; 223-25; 230.) Employer also deposed three Tioga County Prison officers and 

the deputy warden who interacted with Claimant’s husband while he was 

7 Dr. Nasir’s deposition transcript can be found in the Certified Record at Item 40 and his 

testimony is summarized in Findings of Fact 233-41.

8 Dr. Gold’s deposition transcript can be found in the Certified Record at Item 41 and his 

testimony is summarized in Findings of Fact 242-55.

9 The PO testified at the December 13, 2019 and January 14, 2020 hearings, transcripts of 

which can be found in the Certified Record at Items 24 and 25, and his testimony is summarized 

in Findings of Fact 174-88 and 189-99.

10 The election official testified at the May 29, 2020 hearing, a transcript of which can be 

found in the Certified Record at Item 27, and her testimony is summarized in Findings of Fact 200-

08.

11 The coworker testified at the May 29, 2020 hearing, and her testimony is summarized in 

Findings of Fact 209-17.

12 HR director testified at the May 29, 2020 and July 16, 2020 hearings, transcripts of which 

can be found in the Certified Record at Items 27 and 28, and her testimony is summarized in 

Findings of Fact 218-221 and 222-31.
5

incarcerated there.

13

 And finally, Employer deposed three expert witnesses, Thomas

DiBenedetto, M.D., a board-certified orthopedic physician,14 Wolfram Rieger, M.D., 

a board-certified psychiatrist,

15 and Patrick B. Respet, M.D., a board-certified 

orthopedic surgeon,

16 all of whom examined Claimant. Drs. DiBenedetto and Respet

testified that Claimant did not sustain a disabling work-related hip injury, (id. ¶ 292), 

and Dr. Rieger testified that Claimant’s anxiety and panic attacks were not related 

to her alleged hip injury and were situational, such that the “triggers were 

interactions with [County] employees regardless of [where] those interactions would 

occur,” (id. ¶ 289).

B. WCJ and Board Decisions

On October 25, 2021, the WCJ issued his decision denying and dismissing 

both claim petitions. The WCJ determined that Claimant had not carried her burden 

of proving that she had suffered compensable injuries under the Workers’ 

Compensation Act (Act)17 “because her evidence has been found to be not credible.” 

(WCJ Decision, Conclusions of Law ¶ 2.) Specifically, the WCJ made the following 

credibility determinations. Although the WCJ credited Claimant’s testimony about 

falling at work and that she perceived her hip pain prevented her from returning to 

work as a cook, the WCJ rejected Dr. Nasir’s testimony and credited the testimony 

of Drs. DiBenedetto and Respet that Claimant’s fall at work did not cause a right hip 

13 These deposition transcripts can be found in the Certified Record at Items 66-69 and are 

summarized in Finding of Fact 232.

14 Dr. DiBenedetto’s deposition transcript can be found in the Certified Record at Item 61

and his testimony is summarized in Findings of Fact 256-67.

15 Dr. Rieger’s deposition transcript can be found in the Certified Record at Item 62 and 

his testimony is summarized in Findings of Fact 277-89.

16 Dr. Respet’s deposition transcript can be found in the Certified Record at Item 64, and 

his testimony is summarized in Findings of Fact 268-76.

17 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
6

labral tear but rather was limited to a hip contusion that did not prevent her from 

working. (FOF ¶¶ 290-93.) And while the WCJ found Claimant credible insofar as 

she experienced panic attacks during her light-duty receptionist position, he rejected

Claimant’s allegations that those attacks stemmed from her interactions with County 

employees, specifically finding that the election official, coworker, and HR director

were “more credible than Claimant[].” (Id. ¶¶ 294-95.) The WCJ also did not credit 

Claimant’s testimony concerning her interactions with her husband’s PO. (Id. 

¶ 296.) The WCJ found husband’s testimony regarding mistreatment in jail and his 

interactions with the PO not credible, explicitly finding the Tioga County Prison

officers’ testimony and the PO’s testimony more credible. (Id. ¶ 300.) In addition, 

the WCJ found that “Claimant’s credibility was significantly diminished” because 

she did not reveal that she had found a particular physician, Dr. Gold, at the 

recommendation of her attorney despite intake forms and the physician’s testimony. 

(Id. ¶ 297.)18 The WCJ credited the PO’s testimony that he never released any of 

Claimant’s information. (Id. ¶ 298.) The WCJ did not credit Dr. Gold’s opinions

because they were “based solely on Claimant’s subjective perceptions of her 

employment, and while real to her, they have been found not credible as fact by th[e] 

WCJ.” (Id. ¶ 299.)

Claimant appealed to the Board, which affirmed.19 Relevant here, the Board 

declined to remand for a rehearing based on Claimant’s ineffective assistance 

allegations, reasoning as follows:

18 The WCJ also found Claimant’s credibility diminished because “she testified that 

[Employer] made her return to work when her husband was sentenced and incarcerated [but 

Employer’s HR director] testified that [Employer] accommodated Claimant’s request to delay her 

start date.” (FOF ¶ 297.)

19 Commissioner Gabig concurred in the result only.
7

Claimant points us to alleged corroborating evidence that she argues 

could have bolstered her and her husband’s credibility, such as video 

from [her husband’s] incarceration at [Tioga County Prison]. However, 

it is unclear whether this evidence was in Claimant’s counsel’s 

possession or if it would have been permitted into the record. Claimant 

also calls to our attention her counsel’s failure to call certain witnesses, 

such as the [c]ounty [w]arden and his wife. Nevertheless, there is no 

way to discern whether these witnesses, if they were to even appear, 

would have assisted Claimant’s case or how this testimony would have 

bolstered her and her husband’s credibility. We, as the Board, do not 

propose to know the details of her counsel’s trial strategy. Nonetheless, 

it is apparent from the 10 lay witness testimonies obtained, numerous 

hearings devoted to Claimant’s testimony, multiple medical experts 

deposed, and multitudinous exhibits entered on the record over a three[-

]and[-]a[-]half year period of litigating, that Claimant’s counsel did his 

due diligence, made every attempt to chase down evidence, and spared 

no expense in advocating for Claimant, despite an unsuccessful 

outcome. We do not believe the circumstances of this case justify a 

remand or rehearing for collection of additional evidence. 

(Board Op. 19-20.) Claimant thereafter filed the instant Petition for Review. 

II. DISCUSSION

A. Standard of Review

Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704, limits our

review in workers’ compensation matters to determining whether the Board violated 

constitutional rights, failed to act in accordance with law, or made findings 

unsupported by substantial evidence. Universal Am-Can, Ltd. v. Workers’ Comp. 

Appeal Bd. (Minteer), 762 A.2d 328, 331 n.2 (Pa. 2000). A conclusion is “not in 

accordance with law . . . if the agency decision represents ‘a manifest and flagrant 

abuse of discretion or a purely arbitrary execution of the agency’s duties or 

functions.” Slawek v. State Bd. of Med. Educ. & Licensure, 586 A.2d 362, 365 n.4

(Pa. 1991). Thus where, as here, a claimant asks us to reverse the Board for abuse
8

of discretion under the Act, we review for flagrant abuse of discretion or arbitrary 

execution of the Board’s duties. 

B. Ineffective Assistance of Counsel

1. Parties’ Arguments20

Claimant’s first argument is that her counsel was ineffective by failing to 

present the “positive side” of her case. (Claimant’s Brief (Br.) at 12.) Specifically, 

she points to counsel’s failure to question her further after she forgot to mention that 

she learned of Dr. Gold through her attorney. (Id.) Further, in her view, her counsel 

should have called a number of character witnesses. (Id. at 13.)

She also complains that her counsel was ineffective by failing to impeach 

Employer’s witnesses. The thrust of her argument is that, had her counsel pointed 

more specifically to certain alleged inconsistencies, it would have become clear that, 

for example, the PO “flip-flopped some stories . . . and blatantly lied . . . .” (Id. at 

15.) She also asserts that her counsel erred in not introducing pictures of her husband 

after release from prison because had he, Claimant’s “credibility and that of her 

husband would not have been called into question.” (Id.) She further suggests that, 

had her counsel “properly questioned . . . , called additional witnesses, and 

subpoenaed additional records, it could have been proven that the PO and [Tioga 

County Prison officers] had committed perjury during their testimony in order to 

20 Claimant’s brief does not cite caselaw or relevant legal authority, nor does Claimant 

meaningfully discuss precedent. See Pa.R.A.P. 2119(a) (the argument shall include “such 

discussion and citation of authorities as are deemed pertinent”). Despite the shortcomings in 

Claimant’s brief, Employer attempted to address Claimant’s arguments, and we will also address 

the merits of Claimant’s issues on appeal to the extent we are able. See Richardson v. Pa. Ins. 

Dep’t, 54 A.3d 420, 426 (Pa. Cmwlth. 2012) (providing that we may review the cognizable 

arguments we can glean from an appellate brief, despite a pro se appellant’s noncompliance with 

the Pennsylvania Rules of Appellate Procedure, even if those violations are “egregious,” if they 

do not preclude meaningful appellate review).
9

cover up their own wrongdoings.” (Id. at 15-16.) She also asserts that opposing 

counsel acted unethically in gossiping with a witness and that her counsel glossed 

over it. (Id. at 6.)21

Employer relies on this Court’s decision in Martell v. Workers’ Compensation 

Appeal Board (Doyle Equipment), 707 A.2d 242 (Pa. Cmwlth. 1998), for the 

proposition that “there is no mandate to remand for a rehearing every time a losing 

party can point to some evidence that his or her attorney did not introduce into the 

evidentiary record.” (Employer’s Br. at 11.) Employer argues remand is only proper 

where “the WCJ’s findings are not supported by substantial evidence or where the 

WCJ fails to make findings on a crucial issue,” and because Claimant does not so 

allege, her claims must fail. (Id. at 11-12.) 

2. Analysis

Early in this Court’s existence, looking to the Fourteenth Amendment of the 

United States Constitution, U.S. CONST. amend XIV, and article I, section 9 of the 

Pennsylvania Constitution, PA. CONST. art. I, § 9, we observed at the time that the 

right “to effective assistance of counsel has never been extended to civil or 

administrative proceedings, but rather is limited to a review of criminal 

prosecutions.” Johnson v. Workmen’s Comp. Appeal Bd., 321 A.2d 728, 730 (Pa. 

Cmwlth. 1974). Given legal developments since then, however, we must qualify

that statement, and now litigants have a right to effective assistance of counsel in 

certain other proceedings. For example, since Johnson, our state courts have 

recognized the right to effective assistance of counsel, protected by the Fourteenth 

Amendment, in various types of proceedings. See, e.g., In re Commitment of 

21 Though Claimant asks this Court to reverse the Board, we will deem the requested relief 

to be reversal of a denial of rehearing, the relief compatible with her ineffective assistance claims. 

(See Employer’s Brief at 10 (proceeding with that understanding).)
10

Hutchinson, 454 A.2d 1008, 1011 (Pa. 1982) (civil commitment); In the Interest of 

J.T., 983 A.2d 771, 774-75 (Pa. Super. 2009) (termination of parental rights); In the 

Matter of J.P., 573 A.2d 1057, 1061-62 (Pa. Super. 1990) (child dependency). In 

the administrative agency context, we have recognized a right to effective assistance 

of counsel in a parole revocation proceeding before the Pennsylvania Parole Board. 

Hughes v. Pa. Bd. of Prob. & Parole, 534 A.2d 589, 591 (Pa. Cmwlth. 1987) (“It is 

beyond dispute that a parolee in a revocation proceeding has a right to effective 

assistance of counsel.”). 

While the effective assistance of counsel is not “constitutionally mandated”

in the workers’ compensation context, proven incompetency may constitute “cause 

shown” for a rehearing under Section 426 of the Act, 77 P.S. § 871.22 Johnson, 321 

A.2d at 731. The rehearing provision in Section 426 states, in relevant part, that 

“[t]he [B]oard, upon petition of any party and upon cause shown, may grant a 

rehearing of any petition upon which the [B]oard has made [a decision].” 77 P.S. 

§ 871 (emphasis added). 

The Court examined this provision in Johnson, where the claimant’s attorney 

and opposing counsel “stipulated to the admission into evidence of medical reports 

. . . in lieu of their testimony in person.” 321 A.2d at 729. The referee23 denied the 

claimant’s petition, concluding he did not meet his burden of proof and the Board 

affirmed. Id. The claimant subsequently retained new counsel and petitioned the 

Board for a rehearing on the basis he was denied the effective assistance of counsel, 

which the Board denied. Id. at 730. The claimant urged this Court to reverse the 

Board’s denial of a rehearing because of his first attorney’s alleged incompetence, 

and we declined to do so, reasoning that the attorney’s actions did not amount to 

22 Section 426 was added by Section 6 of the Act of June 26, 1919, P.L. 642. 

23 WCJs were formerly known as referees.
11

incompetence. Id. Johnson laid the groundwork for our current jurisprudence in 

this context. In addition to establishing that proven incompetency may amount to 

“cause shown” to warrant a rehearing under Section 426, Johnson established that 

an attorney’s mere misjudgment about a strategic choice, which it described as “a 

conscious and deliberate decision,” will not be sufficient to warrant a reversal of the 

Board’s discretionary decision to deny a rehearing. Id. Rather, Johnson suggests 

that a claimant would have to point, as a threshold matter, to objective incompetence.

In the almost 50 years since we decided Johnson, this Court has had occasion 

to apply its basic attorney incompetence principles in two key workers’ 

compensation opinions. The first, Bickel v. Workmen’s Compensation Appeal Board

(Williamsport Sanitary Authority), 538 A.2d 661 (Pa. Cmwlth. 1988), involved a 

claimant whose attorney inexplicably failed to present any medical testimony in 

support of the claimant’s claim petition despite representing he would do so. Id. at 

662. As a result, the referee concluded the claimant did not meet his burden of proof. 

Id. The claimant first filed a pro se appeal requesting remand, which the Board 

denied, and then, a counseled petition for rehearing on the basis of his original 

attorney’s incompetence, which the Board also denied. Id. We affirmed the Board’s 

remand denial but reversed the Board’s rehearing denial, reasoning everyone 

expected counsel to present the evidence yet “counsel never did present this 

testimony, and no reason for his failure appears in the record before us. . . . [I]t 

appears that this situation came as a surprise to [the claimant] and that he discharged

his counsel for that reason.” Id. at 663 (emphasis added).24 Indeed, there, we 

24 Our parallel analyses in the unemployment compensation and licensing contexts are

similar. See Wilkins v. Unemployment Comp. Bd. of Rev., 502 A.2d 283, 286 (Pa. Cmwlth. 1985) 

(finding that an attorney’s decision not to call witnesses due to questionable relevance did not 

amount to ineffective assistance sufficient to warrant reconsideration); Rosenthal v. State Bd. of 

(Footnote continued on next page...)
12

remarked that the evidence counsel was to present would have been the claimant’s

“only means” of proving his case. Id. (emphasis added). Thus, Bickel stands for 

the proposition that “cause shown” under Section 426 may exist where the

incompetence of counsel undermines a claimant’s ability to satisfy its burden of 

proof.

The second reported decision on this topic is Martell, the case relied upon by 

Employer.

25 There, we explained that “the Board has broad discretion to order 

rehearing where the interests of justice so require, [but] they do not mandate 

rehearing every time a losing party can point to some evidence which his 

attorney did not introduce.” 707 A.2d at 244 (emphasis added). We also framed

Bickel26 as involving attorney incompetence resulting in “manifest injustice,” 

noting that only extraordinary circumstances lead to a finding of abuse of 

discretion on the part of the Board in denying a rehearing. Id. In Martell, Judge

Leadbetter cogently observed that absent that standard, “piecemeal hearings 

prompted by the wisdom of hindsight would become the rule rather than the 

exception.” Id. Thus, generalizing the principle from Martell, we conclude that, in 

Pharm., 457 A.2d 243, 245 (Pa. Cmwlth. 1983) (denying ineffective assistance claim in pharmacy 

board context where pharmacist alleged counsel erred in not arguing an entrapment defense and 

in saying pharmacist was lax in running his business).

25 Pre-Martell, we applied Johnson and Bickel in Mitchell v. Workmen’s Compensation 

Appeal Board (Neal Tree Service), 565 A.2d 224, 226 (Pa. Cmwlth. 1989) (finding that claimant’s 

scenario distinguishable from Bickel where an attorney had not entered an appearance and the 

claimant failed to appear for a hearing). We also reiterated in Dominijinni v. Workmen’s 

Compensation Appeal Board (DeCarlo), 581 A.2d 245, 248 (Pa. Cmwlth. 1990), that rehearing 

denial is not an abuse of discretion where the record does not support any suggestion of 

incompetence on the part of the attorney. 

26 The Martell Court also analyzed two additional cases reversing rehearing denials: Cudo 

v. Hallstead Foundry, Inc., 539 A.2d 792 (Pa. 1988), and Moats v. Workmen’s Compensation 

Appeal Board (Emerald Mines Corp.), 588 A.2d 116 (Pa. Cmwlth. 1991). Both of those cases

involved after-discovered evidence—not allegations of attorney incompetence.
13

the context of alleged attorney incompetence, we will not reverse the denial of a 

rehearing absent a showing of manifest injustice.

Various unreported decisions of this Court have shed further light on what 

kind of alleged incompetence will pass muster under our exacting standard.27 See, 

e.g., Saied v. Workers’ Comp. Appeal Bd. (Mezies Aviation Grp. (USA), Inc.) (Pa. 

Cmwlth., No. 426 C.D. 2020, filed May 26, 2021), slip op. at 25, appeal denied,

(Pa., No. 59 EAL 2022, filed Aug. 23, 2022) (“While [the c]laimant is dissatisfied 

that [c]ounsel did not ask him certain questions, required him to testify through a 

translator, did not call his wife as a witness, did not submit certain documents, and 

did not challenge certain aspects of [a physician’s] testimony on cross-examination, 

we agree with [the e]mployer that this does not require a rehearing . . . .”); Price v. 

Workers’ Comp. Appeal Bd. (Babb Absence Mgmt. Servs.) (Pa. Cmwlth., No. 364 

C.D. 2014, filed Nov. 10, 2014), slip op. at 9 (affirming denial of rehearing where 

record evidence, though discredited by WCJ, was sufficient to satisfy the claimant’s 

burden of proof; thus attorney’s conduct in not submitting additional evidence did 

not amount to manifest injustice). But see Master v. Workers’ Comp. Appeal Bd. 

(Laminators, Inc.) (Pa. Cmwlth., No. 1879 C.D. 2012, filed Apr. 30, 2014), slip op.

at 8 (finding ineffective counsel where counsel alleged opposing counsel had misled 

him into not offering medical evidence, noting “if counsel was misled and did not 

offer medical evidence, he was ineffective; and if he was not misled, he was 

ineffective because he did not timely file any medical reports”).

In summary, Johnson, Bickel, and Martell teach, first, that allegations of 

attorney incompetence are a rehearing issue under Section 426 of the Act, which 

requires “cause shown.” 77 P.S. § 871. Our cases further reveal that for attorney 

27 We may cite unreported panel decisions of this Court for their persuasive value pursuant 

to Section 414(a) of our Internal Operating Procedures. 210 Pa. Code § 69.414(a).
14

incompetence to amount to “cause shown” in this context, the claimant must satisfy 

two elements: (i) objective incompetence on the part of counsel, Johnson, and (ii) 

manifest injustice to the claimant flowing from that objective incompetence, Bickel, 

Martell.

Claimant’s complaints that her counsel failed to put forth the “positive side” 

of her case, did not “point out the discrepancies” in the testimony of Employer’s 

witnesses, failed to reveal that the PO had committed perjury, and glossed over 

“opposing counsel . . . unethically . . . gossiping with a witness prior to her 

testimony” simply do not rise to the level of objective ineffective assistance our cases 

require. (Claimant’s Br. at 6.) Indeed, the Martell Court explained, looking to the 

record, that the alleged incompetence of counsel “under the circumstances of this 

case . . . are as readily explained as strategic decisions as negligence.” 707 A.2d at 

244. The same is true here. Several instances of Claimant’s complained-of conduct

can all be explained more readily as strategy than as incompetence. This case 

involved more than 40 exhibits, nearly 2 dozen hearings, 5 medical witnesses, and 

10 lay witnesses. (WCJ Decision at 2-4.) Accordingly, in an already unwieldy case 

where there was already significant risk of confusing the issues, Claimant’s counsel

reasonably could have concluded that further evidence in an already evidence-rich 

case could divert the WCJ’s attention from the most important issues. Counsel could 

have reasonably concluded that further cross-examination, too, would detract from 

the overall message of Claimant’s case, unduly burden the witnesses, and prejudice 

Claimant’s case. And finally, counsel could have reasonably concluded that the 

“gossiping” of which Claimant complained was not sufficiently egregious or 

prejudicial to Claimant’s case to distract from the issues to which counsel wanted to 

direct the WCJ’s attention. 
15

We also observe that the record belies any suggestion of incompetence. A 

thorough review of the record reveals that Claimant’s counsel cross-examined each 

of Employer’s witnesses, probing into their stories and attempting to uncover 

inconsistencies and corroborate Claimant’s version of events. (See, e.g., 1/14/20 

Hearing Transcript (Tr.) at 15, 41-42, 44; 5/29/20 Tr. at 70, 74, and 78; 7/16/20 Tr.

at 46, 48, 61, 64, 69-70, 72, 77.)

Specifically, counsel asked questions which appeared calculated to show bias 

or coordination among them, and to prove Claimant’s theory of the case. For 

example, counsel asked Claimant’s coworker whether anyone had prepared her or 

whether she had spoken with Employer’s HR director prior to testifying. (5/29/20 

Tr. at 30-31.) Counsel attempted to impeach the witness by suggesting she had 

known Claimant longer than she originally claimed. (Id. at 38.) And counsel tried 

to elicit testimony from her that would tend to corroborate Claimant’s allegations of 

work-related emotional distress. (Id. at 46.) Counsel also confronted the County 

election official about the alleged “gossiping.” (Id. at 32.) 

Counsel also defended the depositions of Employer’s medical experts. The 

record reveals active questioning and participation in each on the part of Claimant’s 

counsel in the defense of those depositions. (See, e.g., Dep. of Dr. DiBenedetto, at 

15-16 (probing percentage of defense-side Independent Medical Exam (IME) work 

performed in connection with his qualifications), and at 57-63 (cross-examining Dr. 

DiBenedetto); See also Dep. of Dr. Rieger at 12-16; 47-57 (same).) 

Moreover, the extensive and detailed proposed findings of fact and 

conclusions of law prepared by counsel, though ultimately unsuccessful in 

persuading the WCJ, reflected diligence on the part of counsel, and at a minimum 

reflected an attempt to cast light on the “positive side” of Claimant’s case. (See 
16

generally Claimant’s Br. in Support of Pending Claim Petitions and Proposed 

Findings of Fact, Conclusions of Law, Summary, and Order, C.R. Item 150.) Put 

simply, far from revealing objective incompetence, the record shows diligent 

lawyering. 

As the Board explained:

[I]t is apparent from the 10 lay witness testimonies obtained, 

numerous hearings devoted to Claimant’s testimony, multiple 

medical experts deposed, and multitudinous exhibits entered on the 

record over a three[-]and[-]a[-]half year period of litigating, that 

Claimant’s counsel did his due diligence, made every attempt to 

chase down evidence, and spared no expense in advocating for 

Claimant, despite an unsuccessful outcome.

(Board Op. at 19-20.)

Although counsel may not have presented every piece of evidence available 

or cross-examined witnesses to Claimant’s satisfaction, as discussed above, 

rehearing is not required “every time a losing party can point to some evidence which 

[her] attorney did not introduce.” Martell, 707 A.2d at 244. Accordingly, no 

manifest injustice resulted from the Board’s denial of rehearing. Simply put, our 

cases require objective incompetence of counsel and a resulting manifest injustice 

for us to find the Board abused its discretion in denying a rehearing on the basis of 

alleged attorney incompetence. Because the record reveals no objective 

incompetence, and no indication of manifest injustice, we find that the Board’s 

denial of a rehearing does not amount to an abuse of discretion. 

C. Unenforceable Subpoenas

1. Parties’ Arguments

Claimant next asks, “Why was testimony allowed from individuals with no 

personal knowledge of [Claimant], while a subpoena for their paperwork had been 
17

deemed unenforceable? The [WCJ] allowed the testimony.” (Claimant’s Br. at 6.) 

Claimant does not provide legal support for this claim but seems to argue that the 

WCJ erred in considering the Tioga County Prison officers’ testimony when a

subpoena related to their testimony had been deemed unenforceable because the 

documents “had nothing to do with [C]laimant.” (Id. at 16.) Employer does not 

seem to directly respond to this argument; however, it suggests that the effect of the 

information in any of the subpoenaed documents on the WCJ’s credibility 

determinations is “purely speculative.” (Employer’s Br. at 17.) 

2. Analysis

WCJs enjoy broad discretion regarding evidentiary decisions. Bristol

Borough v. Workers’ Comp. Appeal Bd. (Burnett), 206 A.3d 585, 616 (Pa. Cmwlth. 

2019). “Commonwealth agencies are not bound by the technical rules of evidence 

. . . and all relevant evidence of reasonably probative value may be received.” Id. 

(citing Section 505 of the Administrative Agency Law, 2 Pa.C.S. § 505). Section 

505 of the Administrative Agency Law “has been properly interpreted to permit a 

relaxation of the strict rules of evidence in . . . hearings and proceedings, including 

those held by a WCJ.” Id. Where sufficient evidence supports a WCJ’s findings,

despite the WCJ having considered additional and possibly irrelevant testimony, we 

have found such testimony to be “mere surplusage and at best harmless error.” 

Haverford Township v. Workmen’s Comp. Appeal Bd. (Angstadt), 545 A.2d 971, 

974 (Pa. Cmwlth. 1988). In addition, we have said that an abuse of discretion will 

amount to harmless error where it does not affect an “ultimate decision” in the case. 

Herman v. Workmen’s Comp. Appeal Bd. (Fayette Cnty.), 439 A.2d 834, 836 (Pa. 

Cmwlth. 1981). 
18

The voluminous record and many side issues in this case can easily distract 

from the ultimate issue, which is whether either or both of Claimant’s injuries were 

work related and thereby compensable under the Act. A brief review of the law 

makes clear that—even if the WCJ abused his discretion in considering the Tioga 

County Prison officers’ depositions, inclusion of that testimony amounted to 

harmless error because it was not outcome determinative. For a physical injury to 

be compensable, it must have occurred during the course and scope of employment 

and must be causally connected to the employment. Jeannette Dist. Mem’l Hosp. v. 

Workmen’s Comp. Appeal Bd. (Mesich), 668 A.2d 249, 252 (Pa. Cmwlth. 1995). 

For a mental injury to be compensable under the Act, it must either be causally 

related to a work-related physical injury (i.e., physical-mental), or causally related 

to abnormal working conditions or a work-related psychic stimulus (i.e., mentalmental). Ryan v. Workmen’s Comp. Appeal Bd. (Cmty. Health Servs.), 707 A.2d 

1130, 1333-34 (Pa. 1998). The physical and physical-mental categories are clearly 

not implicated here where the WCJ found that the physical injury (i.e., hip injury)

for which Claimant seeks compensation under the Act is not work related. (See FOF 

¶ 292; Board Op. at 16.) Thus, in order for her anxiety disorder and panic attacks to 

be compensable, Claimant would have to prevail under the mental-mental standard. 

However, the WCJ found that no County employee engaged in harassing behavior. 

(See FOF ¶¶ 295, 296; Board Op. at 17) (explaining that Claimant “failed to present 

credible testimony to meet all the elements for either [the physical-mental or mentalmental] burden”).) So, although the WCJ found that Claimant suffered from panic 

attacks and anxiety, there was not credible evidence to support a finding that a workrelated psychic stimulus or abnormal working conditions in the course and scope 

of her employment caused that injury. The treatment of Claimant’s husband while 
19

incarcerated in a different county and/or the veracity of the officers there does not 

appear to have any bearing on whether abnormal working conditions existed at her 

workplace, which would be necessary under the Act.

We do find it unclear why the WCJ would have permitted their testimony in 

the first instance given its attenuated and tangential nature. However, even if it was 

an abuse of discretion to consider the testimony, we conclude that it amounted to 

mere surplusage, and thus harmless error, because it did not bear on the essential 

issue in the case, namely, whether Claimant had suffered injuries compensable under 

the Act. 

Finally, to the extent we could understand Claimant’s argument on this point 

to be that her counsel was ineffective for failing to press the subpoena issue further, 

we would reiterate our reasoning above that such a decision can more readily be 

explained as strategy than incompetence.

III. CONCLUSION

Based on the foregoing, we affirm the Order of the Board.

__________________________________________

RENÉE COHN JUBELIRER, President Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kelly A. Finck, :

Petitioner :

 :

v. : No. 1029 C.D. 2022

 : 

Union County Commissioners :

(Workers’ Compensation Appeal :

Board), :

Respondent :

O R D E R

NOW, December 18, 2023, the Order of the Workers’ Compensation Appeal 

Board, dated July 22, 2022, is AFFIRMED.

__________________________________________

RENÉE COHN JUBELIRER, President Judge