IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Holloman Corporation and Liberty :

Mutual, :

:

Petitioners :

: No. 976 C.D. 2015 

v. : Submitted: January 15, 2016

:

Workers’ Compensation Appeal Board :

(Shaw), :

:

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE COLINS FILED: April 22, 2016

Holloman Corporation (Employer) and its workers’ compensation 

insurer petition for review of an order of the Workers’ Compensation Appeal 

Board (Board) that affirmed the decision and order of a Workers’ Compensation 

Judge (WCJ) granting the claim petition of John Shaw (Claimant) and awarding 

him total disability benefits.

1

For the reasons set forth below, we affirm.

In 2011, Claimant was employed by Employer as a heavy equipment 

operator assigned to various jobsites in Pennsylvania. (WCJ Decision Finding of 

 

1 A second petition for review appealing the Board’s decision was filed by separate counsel for 

Employer and docketed at No. 1011 C.D. 2015. By Order dated October 2, 2015, this Court 

quashed that second petition for review. 
2

Fact (F.F.) ¶¶3, 19; 12/5/11 Hearing Transcript (H.T.) at 9-10, Reproduced Record 

(R.R.) at 32a-33a; 4/24/13 H.T. at 59, 62-64, R.R. at 158a, 161a-163a; 5/13/13 

H.T. at 54-56, R.R. at 277a-279a.) On October 18, 2011, Claimant was driving a 

track hoe machine in the course of his work duties at a jobsite in western

Pennsylvania and collided with an energized power line. (WCJ Decision F.F. ¶¶3, 

15, 19, 20; 12/5/11 H.T. at 10-11, R.R. at 33a-34a; Claimant Ex. 4 Khan Dep. Ex. 

1, Employer Incident Analysis Report; Claimant Ex. 5 Booth Dep. at 20-23, 32, 

R.R. at 618a-621a.) At the time of the accident, Claimant was inside the cab of the 

track hoe and was wearing steel-toed shoes, but was not wearing gloves. (WCJ 

Decision F.F. ¶¶10, 19; 12/5/11 H.T. at 11, R.R. at 34a; 4/24/13 H.T. at 59, 69-70,

R.R. at 158a, 168a-169a.) Employer’s incident report described Claimant’s injury 

as “electric shock” involving the “head.” (WCJ Decision F.F. ¶12; 5/13/13 H.T. at 

41-44, 74-78, R.R. at 264a-267a, 297a-301a; Claimant Ex. 4 Khan Dep. Ex. 1, 

Employer Incident Analysis Report.) 

On the day of the accident, Employer took Claimant to a hospital 

emergency room, where he was examined and discharged, without hospitalization, 

with a diagnosis of electric shock and back spasm. (WCJ Decision F.F. ¶¶3, 11, 

19; 12/5/11 H.T. at 13-14, 18, R.R. at 36a-37a, 41a; 4/24/13 H.T. at 70-72, R.R. at 

169a-171a; 5/13/13 H.T. at 13-16, R.R. at 236a-239a; Claimant Ex. 4 Khan Dep. 

Ex. 2 Uniontown Hospital Records.) Claimant reported to work the next two days, 

but asked Employer to take him to the hospital on the second day, and Claimant 

was again examined and discharged without hospitalization. (WCJ Decision F.F. 

¶¶3, 19; 12/5/11 H.T. at 14, 18, R.R. at 37a, 41a; 5/13/13 H.T. at 17, 19-21, R.R. at 

240a, 242a-244a.) At these emergency room visits, no CT scans, MRIs or EEGs 

were performed. (Claimant Ex. 4 Khan Dep. Ex. 2, Uniontown Hospital 
3

Emergency Department Records.) The emergency room records do not note any 

skin abnormalities or burns. (Id.) 

Claimant’s wife became concerned about Claimant’s mental condition 

and ability to function and take care of himself and brought him back home with 

her to eastern Pennsylvania on October 31, 2011. (WCJ Decision F.F. ¶¶4, 21; 

12/5/11 H.T. at 34-35, 66-67, R.R. at 57a-58a, 89a-90a.) Claimant was 

hospitalized from November 2, 2011 to November 4, 2011 for evaluation of altered 

mental status. (WCJ Decision F.F. ¶¶3, 19; 12/5/11 H.T. at 19, R.R. at 42a;

Claimant Ex. 4 Khan Dep. Ex. 3 Community Medical Center Records.) A CT scan 

and MRI of the brain were performed and were reported as normal. (Claimant Ex. 

4 Khan Dep. at 11-12, 36, R.R. at 559a-560a, 584a; Claimant Ex. 4 Khan Dep. Ex. 

3 Community Medical Center Records.) An EEG was also performed and was 

reported as “[a]bnormal EEG with paroxysmal responses from left frontal and 

temporal regions with features of interictal epileptiform discharges.” (Claimant 

Ex. 4 Khan Dep. Ex. 3 Community Medical Center Records & Employer Ex. 5 

Shipkin Dep. Claimant Ex. 1, R.R. at 893a-894a; Claimant Ex. 4 Khan Dep. at 15, 

R.R. at 563a.) The records from this hospitalization note that Claimant had a 

darkened blister area on the right ear lobe and that there were “[t]iny scabbed areas 

that looked like [they] were blisters” elsewhere on Claimant’s skin. (Claimant Ex. 

4 Khan Dep. Ex. 3 Community Medical Center Records; Claimant Ex. 4 Khan 

Dep. at 8, R.R. at 556a.)

Claimant filed a Claim Petition on October 27, 2011, alleging that he 

suffered traumatic brain injury as a result of the October 18, 2011 work accident 

and seeking disability benefits and payment of medical bills, and Employer timely 

filed an answer denying liability. (Claim Petition, R.R. at 14a-19a; Employer 

Answer, R.R. at 20a-22a.) The WCJ held four evidentiary hearings at which 
4

Claimant, Claimant’s wife, Claimant’s landlady, and two Employer witnesses 

testified. The WCJ also received testimony by trial deposition of four expert 

witnesses for Claimant, three expert witnesses for Employer, and one additional 

Employer fact witness. In these proceedings, Employer did not dispute that 

Claimant’s track hoe collided with an energized power line and this accident was 

work-related. The issues in dispute were whether Claimant received an electric 

shock in the accident, what, if any, injuries Claimant suffered from the accident, 

and whether Claimant was disabled.

Claimant testified that his track hoe hit the power line, that the power 

line came down, and that “I felt the current come through the machine and out of 

it.” (12/5/11 H.T. at 11, R.R. at 34a.) Claimant testified that after the accident, he 

had a spot on his ear that was bleeding. (Id. at 12-13, R.R. at 35a-36a.) Claimant’s 

wife testified that when she came to see him after the accident, she saw a blister on 

Claimant’s right ear and blisters on his buttocks and that his hands and feet were 

bright red like they were sunburned. (4/24/13 H.T. at 43-44, R.R. at 142a-143a.)

Claimant and his wife testified that Claimant was confused and had difficulty 

doing ordinary tasks after the accident and that he also suffered back pain, muscle 

spasms, headaches, and incontinence after the accident. (12/5/11 H.T. at 12, 18, 

34-37, 49-51, 61, 67, R.R. at 35a, 41a, 57a-60a, 72a-74a, 84a, 90a; 4/24/13 H.T. at 

54, 57, 60, 72-74, 76, 79-80, R.R. at 153a, 156a, 159a, 171a-173a, 175a, 178a179a.) Claimant described feeling that “I haven’t been right” and testified that he 

has trouble remembering things and putting what he wants to say in words. 

(12/5/11 H.T. at 12, R.R. at 35a; 4/24/13 H.T. at 54, 60, 72-74, 76, R.R. at 153a, 

159a, 171a-173a, 175a.) Claimant’s wife testified that before the accident 

Claimant put things around the house away properly and that when she came to see 

him the second weekend after the accident, Claimant’s trailer was in disarray, with 
5

food that must be kept cold in unrefrigerated cabinets. (12/5/11 H.T. at 34-35, 49-

51, R.R. at 57a-58a, 72a-74a; 4/24/13 H.T. at 46, R.R. at 145a.) Claimant’s wife 

also testified that after the accident, Claimant had trouble remembering things and 

concentrating and talked like “he was drunk.” (4/24/13 H.T. at 45-48, R.R. at 

144a-147a.) Claimant’s landlady testified that Claimant acted professional and 

communicated without difficulty with her before the accident, but that after the 

accident, he did not speak the same way and appeared “retarded.” (4/24/13 H.T. at 

10-16, 18-21, 36-38, R.R. at 109a-115a, 117a-120a, 135a-137a.) 

None of Employer’s witnesses was present when the accident 

occurred. (5/13/13 H.T. at 30, 70-71, R.R. at 253a, 293a-294a; Employer Ex. 4

Kitzman Dep. at 13-14, R.R. at 825a-826a.) Employer’s safety coordinator 

testified that he was called to the job site after the accident and took Claimant to 

the hospital. (5/13/13 H.T. at 11-14, R.R. at 234a-237a.) The safety coordinator 

testified that when he arrived at the accident scene Claimant “looked kind of 

scared” and did not say much. (Id. at 13-14, R.R. at 236a-237a.) The safety 

coordinator felt that it was necessary that Claimant go to the hospital, although 

Claimant “seemed all right” and “said he was all right.” (Id. at 13-15, 38-39, R.R. 

at 236a-238a, 261a-262a.) The safety coordinator also testified that he took 

Claimant to the hospital again two days after the accident when Claimant reported 

that he was having spasms. (Id. at 19-20, R.R. at 242a-243a.) The safety 

coordinator and Employer’s safety manager, who came to the site the day after the 

accident, testified that they conducted an investigation of the accident and 

classified it as involving an electric shock injury to the head. (Id. at 17-19, 39-44, 

57, 65-66, 72-78, R.R. at 240a-242a, 262a-267a, 280a, 288a-289a, 295a-301a; 

Claimant Ex. 4 Khan Dep. Ex. 1, Employer Incident Analysis Report.) A 

mechanic who works for Employer testified that he inspected the track hoe the 
6

evening after the accident, that its electronic and computer systems were not 

damaged, and that he did not see any pitting or scorch or burn marks to the track 

hoe. (Employer Ex. 4 Kitzman Dep. at 7-9, 22-23, R.R. at 819a-821a, 834a-835a.) 

Claimant introduced testimony of three expert witnesses concerning 

his mental and physical condition and its relation to the accident. Abby Barr, 

Ph.D., a neuropsychologist, testified that she administered cognitive screening tests 

and neuropsychological tests to Claimant that showed impairments in attention, 

memory, language, and executive functioning. (Claimant Ex. 2 Barr Dep. at 6-9, 

14-17, 23-24, 39-44, R.R. at 348a-351a, 356a-359a, 365a-366a, 381a-386a.) 

Neuropsychologist Barr opined, based on these tests, her interviews and behavioral 

observations of Claimant, and review of Claimant’s school records, that Claimant 

suffered from moderate cognitive impairment, that this cognitive impairment was a 

type of injury caused by electric shock and was caused by the October 18, 2011 

accident, and that Claimant could not perform his job with Employer or the 

alternative positions offered by Employer. (Id. at 23-44, 47-53, R.R. at 365a-386a, 

389a-395a.) Neuropsychologist Barr further testified that cognitive injuries from 

electric shock can manifest themselves two days to two weeks after the event. (Id.

at 67, R.R. at 409a.)

Dr. Iqbal Khan, the neurologist who examined Claimant in his 

November 2011 hospitalization, testified that the EEG performed in that 

hospitalization showed abnormalities in the left frontal and temporal region of 

Claimant’s brain that were consistent with the cognitive deficits found in the 

neuropsychological tests. (Claimant Ex. 4 Khan Dep. at 5, 10-13, 15-17, R.R. at 

553a, 558a-561a, 563a-565a.) Dr. Khan opined that Claimant suffered from 

cognitive dysfunction caused by an electrical brain injury in his work accident and 

that Claimant was not capable of performing his pre-injury job. (Id. at 18-19, 21-
7

24, R.R. at 566a-567a, 569a-572a.) Dr. Peter Cognetti, a family practice physician 

who treated Claimant after the November 2011 hospitalization, testified that 

Claimant suffered from cognitive dysfunction, acute lower back syndrome, acute 

cervical injury, post-traumatic vascular headaches, and gastrointestinal 

disturbances. (Claimant Ex. 3 Cognetti Dep. at 5-6, 10, 28-29, R.R. at 471a-472a, 

476a, 494a-495a.) Dr. Cognetti opined that these conditions were a direct result of 

electrical injury in the October 18, 2011 accident and that Claimant was not able to 

work as a result of these conditions. (Id. at 29-33, R.R. at 495a-499a.) All of 

Claimant’s medical expert witnesses testified that their opinions were predicated 

on the understanding that Claimant received an electric shock in the accident. 

(Claimant Ex. 2 Barr Dep. at 61, R.R. at 403a; Claimant Ex. 4 Khan Dep. at 47-48, 

R.R. at 595a-596a; Claimant Ex. 3 Cognetti Dep. at 48, R.R. at 514a.)

Employer presented expert testimony from two medical witnesses

who examined Claimant on its behalf, Dr. Paul Shipkin, a neurologist, and Dr. 

Robert DeSilverio, a psychiatrist. Both opined that Claimant did not suffer any 

cognitive injury as a result of the accident and that Claimant was capable of 

returning to work without restrictions. (Employer Ex. 5 Shipkin Dep. at 5-7, 17-

49, R.R. at 842a-843a, 845a-853a; Employer Ex. 6 DeSilverio Dep. at 6, 34-40, 

R.R. at 900a, 928a-934a.) Dr. Shipkin also testified that there is documentation in 

the medical literature of late onset of neurological problems following an electrical 

injury. (Employer Ex. 5 Shipkin Dep. at 78, R.R. at 861a.) 

Both Claimant and Employer submitted expert testimony from 

electrical engineers. Claimant’s engineering expert, Gregory Booth, P.E., testified 

that the track hoe cab was not grounded or insulated from the electrical current that 

flowed into the track hoe when it hit the power line and that there were step and 

touch potential differences within the cab due to the different materials in the cab 
8

that would cause electric current to flow through the occupant’s body. (Claimant 

Ex. 5 Booth Dep. at 20-21, 30-34, 37, 43, 52-54, R.R. at 618a-619a, 628a-632a, 

635a, 641a, 650a-652a.) Booth testified that when Claimant’s track hoe collided 

with the power line “those step and touch potential differences would cause current 

to flow through his body,” that “[a]ny operator, Mr. Shaw [Claimant] in this case, 

would see potential differences in the control cabinet” and that “[t]hose potential 

differences would drive current flow at the various locations through his body.” 

(Id. at 48-51, R.R. at 646a-649a.) Booth further opined that the flow of electric 

current through the cab would not normally cause damage to the track hoe’s 

electrical system. (Id. at 32-33, 40-41, 51-52, R.R. at 630a-631a, 638a-639a, 649a650a.) 

Employer’s engineering expert, Samuel Sudler, III, P.E., opined that 

the track hoe was grounded and insulated the occupant from the electric charge 

from the power line and that Claimant therefore could not have received an electric 

shock in the accident. (Employer Ex. 7 Sudler Dep. at 26-31, 34-35, 50-51, 59-60, 

69-70, 72, R.R. at 992a-994a, 998a, 1000a, 1002a-1003a.) Sudler also testified

that the absence of damage to the track hoe’s electrical system supported his 

opinion that no electric shock went through the cab. (Id. at 24-29, 54, 56-60, R.R. 

at 991a-992a, 999a-1000a.)

On March 18, 2014, the WCJ issued a decision granting Claimant’s 

Claim Petition. The WCJ found the testimony of Claimant, Claimant’s wife and 

Claimant’s landlady credible. (WCJ Decision F.F. ¶¶19, 21-22.) The WCJ found 

the testimony of Employer’s safety coordinator and safety manager to be of limited 

value because they did not witness the accident, and rejected the testimony of 

Employer’s mechanic, noting that his testimony that there was no damage to the 

track hoe was inconsistent with the photographic evidence attached to the 
9

engineering experts’ depositions. (Id. F.F. ¶¶27-28.) With respect to expert 

witnesses, the WCJ found Claimant’s medical experts credible, noting with respect 

to neuropsychologist Barr that her testimony was supported by objective tests and 

that she was treating Claimant and noting that Drs. Khan and Cognetti were 

treating physicians. (Id. F.F. ¶¶24, 26.) The WCJ rejected the testimony of 

Employer’s expert Dr. DeSilverio as not credible based on his expression of 

engineering opinions outside his medical expertise and his failure to perform any 

testing of Claimant, and found Dr. Shipkin less credible than Claimant’s experts to 

the extent that his testimony conflicted with their testimony because he saw 

Claimant only once and was not a treating physician. (Id. F.F. ¶¶23, 25.) The 

WCJ found the testimony of Claimant’s electrical engineering expert Booth more 

credible than Employer expert Sudler’s testimony, finding that Booth’s explanation 

of the step and touch potentials in the track hoe explained how such a shock could 

occur and that Sudler appeared to have started from the presumption that a shock 

could not occur. (Id. F.F. ¶20.) 

The WCJ determined that Claimant was injured in the October 18, 

2011 workplace accident, and described the work injury as “cognitive dysfunction, 

lower back pain, cervical injury, and muscle spasm, post-traumatic vascular 

headaches, and gastrointestinal disturbances.” (WCJ Decision ¶30, Conclusion of 

Law (C.L.) ¶2.) The WCJ further concluded that Claimant was disabled by this 

work injury and awarded Claimant temporary total disability benefits. (Id. F.F. 

¶31, C.L. ¶¶2-3.) Employer appealed, and the Board affirmed, holding that 

Claimant’s experts’ testimony was competent and that Claimant sustained his 
10

burden of proving his work-related injury and disability. (Board Opinion at 10-

13.) This appeal followed.2

Under the Workers’ Compensation Act,

3

the burden in a claim 

petition proceeding is on the claimant to prove that he has suffered a work-related 

injury and that he is disabled by that injury. Inglis House v. Workmen’s 

Compensation Appeal Board (Reedy), 634 A.2d 592, 595 (Pa. 1993); Potere v. 

Workers’ Compensation Appeal Board (Kemcorp), 21 A.3d 684, 689-90 (Pa. 

Cmwlth. 2011); Reyes v. Workers’ Compensation Appeal Board (AMTEC), 967 

A.2d 1071, 1077 (Pa. Cmwlth. 2009) (en banc). Where the connection between a 

workplace accident and the claimant’s injury or disability is not obvious, the 

claimant must prove the causal link by unequivocal medical expert testimony. 

Moyer v. Workers’ Compensation Appeal Board (Pocono Mountain School 

District), 976 A.2d 597, 599 n.3 (Pa. Cmwlth. 2009); Reyes, 967 A.2d at 1077.

Employer does not dispute that Claimant’s track hoe collided with an 

energized power line or that the accident was work-related. Employer also does 

not dispute that Claimant’s medical experts testified unequivocally that Claimant’s 

injuries and disability were caused by the accident. Rather, Employer argues that 

the WCJ’s decision and the Board’s affirmance must be reversed because there 

was allegedly no competent evidence that Claimant received an electric shock and 

that Claimant’s medical experts’ opinions were therefore rendered incompetent 

 

2 Our review is limited to determining whether an error of law was committed, whether the 

WCJ’s necessary findings of fact are supported by substantial evidence or whether constitutional 

rights were violated. BJ’s Wholesale Club v. Workers’ Compensation Appeal Board (Pearson), 

43 A.3d 559, 562 n.1 (Pa. Cmwlth. 2012). 

3 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
11

because they were predicated on the assumption that Claimant received an electric 

shock in the accident. 

Employer’s argument fails for two reasons. First, the WCJ’s factual 

finding that Claimant sustained an electric shock was not dependent on expert 

opinion. Claimant testified that he felt electric current come through the machine

and Employer admitted in its incident report following its investigation that 

Claimant suffered an electric shock to his head. (12/5/11 H.T. at 11, R.R. at 34a; 

5/13/13 H.T. at 40-44, 72-78, R.R. at 263a-267a, 295a-301a; Claimant Ex. 4 Khan 

Dep. Ex. 1, Employer Incident Analysis Report.) The WCJ found this evidence 

credible. (WCJ Decision F.F. ¶¶3, 12, 19; Board Opinion at 9.) Employer cites no 

case law holding that lay witnesses are incapable of perceiving and testifying to 

whether they felt an electric shock. Engineering expert testimony was certainly 

relevant on the issue of whether electric current from the power line could have 

reached Claimant in the cab of the track hoe to rebut or explain the lay evidence, 

but that was in the nature of a defensive argument raised by Employer to negate 

Claimant’s proof or additional support of Claimant’s contention, not a matter on 

which the Claimant bore the burden of introducing evidence. 

Second, Claimant introduced expert testimony sufficient to support 

the WCJ’s finding that he sustained an electric shock in the accident. For expert 

testimony to be competent evidence on which a WCJ may base findings of fact, it 

must be unequivocal. BJ’s Wholesale Club v. Workers’ Compensation Appeal 

Board (Pearson), 43 A.3d 559, 564 (Pa. Cmwlth. 2012); Potere, 21 A.3d at 691;

see also Betz v. Erie Insurance Exchange, 957 A.2d 1244, 1258 (Pa. Super. 2008) 

(for engineering expert testimony to be competent, expert must testify with 

reasonable certainty). Expert testimony is unequivocal where the expert testifies 

that in his professional opinion he believes or thinks that the facts to which he 
12

testifies exist; if, however, the expert opines only that those facts could or may 

exist or are possible, such testimony is equivocal and incompetent. Amandeo v. 

Workers’ Compensation Appeal Board (Conagra Foods), 37 A.3d 72, 80 (Pa.

Cmwlth. 2012); Campbell v. Workers’ Compensation Appeal Board (Pittsburgh 

Post Gazette), 954 A.2d 726, 730 (Pa. Cmwlth. 2008). An expert is not required to 

use specific “magic words” for his opinion to be found unequivocal. Moyer, 976

A.2d at 599; Campbell, 954 A.2d at 730. Whether an expert’s testimony is 

unequivocal must be determined from review of the testimony as a whole and is a 

question of law for the Court to decide. Potere, 21 A.3d at 690; Moyer, 976 A.2d 

at 599 & n.3; Campbell, 954 A.2d at 730. 

Contrary to Employer’s contentions, Claimant’s engineering expert’s 

testimony was unequivocal. Booth testified that his opinions were to a reasonable 

degree of professional certainty. (Claimant Ex. 5 Booth Dep. at 47-52, R.R. at 

645a-650a.) Booth testified that it was his opinion that electric current flowed into 

Claimant’s body when the track hoe became energized in the collision with the 

power line:

Q. ... [D]o you have an opinion within a reasonable degree of 

electrical engineering certainty as to whether the 12,000/7,200 

volt distribution transferred or interacted with the Link Belt 

[track hoe] machine being operated by Mr. Shaw [Claimant]?

A. Yes.

Q. And what is your opinion?

A. My opinion is that the interaction was excessive current 

flow as fault current was flowing through the Link Belt track 

hoe, that it had a potential difference imposed all the way 

across the track hoe to ground, and that there were a variety of

potential differences that would’ve existed throughout the 

track hoe, most particularly in the control cabinet on the 

various pieces of control hold items, both the pedals and 
13

gears; and that those potential differences being touched by a 

human being, in this case Mr. Shaw, would have imposed 

both touch and step potential difference on Mr. Shaw’s body. 

And those step and touch potential differences would cause 

current to flow through his body causing physical injury and 

harm.

Q. Mr. Booth, again, based upon the aforementioned, do you 

have an opinion within a reasonable degree of electrical 

engineering certainty as to whether the 12,000/7,200 volt 

power distribution transferred to the Link Belt did create or 

result in electrical shock to Mr. Shaw while he operated the 

Link Belt while seated in the control cabinet?

MS. CALLAHAN: Just note an objection as to the form. You 

can answer.

THE WITNESS: Yes.

BY MR. VAZOUEZ:

Q . What is your opinion?

* * *

THE WITNESS: ... The Link Belt contacted a phase 

conductor 7,200 volts to the ground, that imposed 7,200 volts 

and associated fault current flowing through the Link Belt. 

Any operator, Mr. Shaw in this case, would see potential 

differences in the control cabinet being in contact both on his 

feet and his hands with objects in that control cabinet. Those 

potential differences would drive current flow at the various 

locations through his body. That current would cause 

electrical injury and heating injury to a human body by 

driving current levels from a high voltage line into a human 

being, in this case Mr. Shaw.

(Id. at 48-51, R.R. at 646a-649a) (emphasis added). The fact that Booth used the 

verb “would” does not make his opinion uncertain. Rather, it describes a definite 

consequence that occurs as a result of a situation, here the current flowing into the 
14

track hoe. See Reinforced Molding Corp. v. Workers’ Compensation Appeal 

Board (Haney), 717 A.2d 1096, 1100-01 (Pa. Cmwlth. 1998) (opinion that 

claimant if he returned to work “would develop symptoms” of worsening breathing 

problems and that he would be prevented from ever going back to his pre-injury

job was unequivocal and competent); Gillingham v. Consol Energy, Inc., 51 A.3d 

841, 849-52 (Pa. Super. 2012) (engineering expert testimony that rust would have 

alerted defendant to need for further inspection and that deformation of bolt would 

not have been caused by the accident was competent).

Employer’s repeated assertions that Booth testified only that it was 

“possible” that Claimant received an electric shock are unsupported by the record. 

Nowhere in any of Booth’s testimony did he opine or suggest that he thought that 

the flow of electric current into Claimant’s body was a mere possibility rather than 

an automatic consequence of the collision with the power line. Indeed, Employer 

does not point to any place in Booth’s testimony where he uses words of 

uncertainty such as “could,” “may,” might,” “possible,” or “possibility,” in his 

opinions concerning whether Claimant received an electric shock or cite to 

anything in Booth’s testimony in support of these assertions. Instead, its 

contentions that Booth opined only that an electric shock was “possible” are based, 

not on anything in Booth’s testimony, but on language in the WCJ’s decision in his 

comparison of Booth’s testimony to Employer’s expert’s testimony. It is the 

expert’s actual testimony that we examine in determining whether it is 

unequivocal, not Employer’s or the WCJ’s characterizations of that testimony. 

Moreover, Employer’s assertion that the WCJ found that Booth 

testified only that an electric shock was possible is not even correct. The WCJ did 

state in evaluating Booth’s testimony:
15

Mr. Booth testifies in terms of the fact that such a shock was 

possible given the step potential differences between the 

various surfaces in the Claimant’s immediate environment. 

This Judge notes that Mr. Booth does not one hundred (100%) 

percent flat-out say that a shock did occur. Mr. Booth states 

that such a shock was possible.

(WCJ Decision F.F. ¶20.) These statements were made to contrast Booth’s 

testimony with the testimony of Employer’s expert, whom he found rigidly certain

of the result that he wished to reach and therefore not credible. However, the WCJ 

also made clear he understood that Booth testified that Claimant in fact received an 

electric shock, noting that “Mr. Booth testified that it was his opinion that the 

Claimant had received a shock from striking a power-line” and “Claimant has 

presented the testimony of Mr. Booth, an electrical engineer, who said that the 

Claimant did receive a shock.” (Id. F.F. ¶¶15, 20.)

Employer also argues that the WCJ erred in failing to grant a motion it 

filed in July 2013 seeking to exclude Booth’s deposition on the ground that 

photographs of the accident site taken on Claimant’s behalf for a third-party action 

were not provided to Employer before the engineering experts’ reports and 

depositions. Employer did not raise this issue in its appeal to the Board. In its two 

appeals to the Board, Employer’s only claims of error concerned the competency 

of Claimant’s experts’ testimony, the sufficiency of the evidence to support the 

WCJ’s findings, the WCJ’s conclusions of law and whether the WCJ appropriately 

considered all of the evidence in the record. (4/3/14 Employer Appeal, R.R. at 

1130a-1131a; 4/8/14 Employer Appeal; Board Opinion at 2.) Utterly absent from 

these appeals was any claim of error in failing to grant any motion to preclude 

evidence or any claim of prejudice from delayed disclosure of photographs or other 

evidence. The law is clear that issues not raised in a party’s appeal to the Board 

are waived and cannot be considered by this Court. CVA, Inc. v. Workers’ 
16

Compensation Appeal Board (Riley), 29 A.3d 1224, 1230 (Pa. Cmwlth. 2011); 

Marx v. Workers’ Compensation Appeal Board (United Parcel Service), 990 A.2d 

107, 111 (Pa. Cmwlth. 2010). Employer is therefore barred from seeking reversal 

of the WCJ’s or Board’s decisions on this ground.

In sum, Claimant presented competent evidence that he suffered an 

electric shock in his October 18, 2011 workplace accident, that he suffered the 

injuries and disability found by the WCJ, and that his injuries and disability were 

caused by the workplace accident. The WCJ found that evidence credible. The 

WCJ has exclusive province over questions of credibility and evidentiary weight, 

and may accept or reject the testimony of any witness, including expert witnesses,

in whole or in part. Potere, 21 A.3d at 690; Anderson v. Workers’ Compensation 

Appeal Board (Penn Center for Rehab), 15 A.3d 944, 949 (Pa. Cmwlth. 2010). 

There is no basis to disturb the WCJ’s credibility determinations and factual 

findings here. 

Accordingly, we affirm the decision of the Board. 

____________________________________

JAMES GARDNER COLINS, Senior Judge

Judge Cohn Jubelirer concurs in the result only.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Holloman Corporation and Liberty :

Mutual, :

:

Petitioners :

: 

v. : No. 976 C.D. 2015 

: 

Workers’ Compensation Appeal Board :

(Shaw), :

:

Respondent :

O R D E R

AND NOW, this 22nd day of April, 2016, the order of the Workers’ 

Compensation Appeal Board in the above matter is AFFIRMED.

____________________________________

JAMES GARDNER COLINS, Senior Judge