IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Labor Ready Northeast, Inc. and : ESIS, : Petitioners :

: v. : No. 486 C.D. 2017
: Submitted: October 20, 2017 Workers' Compensation Appeal : Board (Lasky), : Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE ANNE E. COVEY, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE SIMPSON FILED: February 22, 2018

Labor Ready Northeast, Inc. , and ESIS, its worker s’ compensation insurance carrier, ( collectively, Employer) petition for review of an order of the
Workers ’ Compensation Appeal Board (Board) that affirmed a Workers ’ Compensation Judge’s (WCJ) order granting Robert Lasky’s (Claimant) claim petition for to tal disability and specific loss benefits. On appeal here , Employer
contends the WCJ erred or abused his discretion by capriciously disregarding competent medical evidence that Claimant’s condition , diagnosed as a hypoxia (lack of oxygen) induced involunt ary movement disorder, was instead psychogenic (arising from mental or emotional stress, or psychological or psychiatric disorders)
in nature . Employer asserts the WCJ further erred by failing to admit into evidence an investigation report prepared by the Occupational Safety and Health2

Administration (OSHA); and , by failing to issue a reasoned decision as required by
Section 422 (a) of the Workers ’ Compensation Act 1 (Act). Upon review, we affirm.

I. Background Claimant filed a claim petition alleging he sustained compensable injuries during the course of his employment with Employer following his exposure to toxic chemicals on April 20, 2013. Claimant sought partial disability benefits for the first two days fo llowing his exposure and then ongoing total disability benefits beginning April 22, 2013. Employer filed a timely answer denying Claimant’s material allegations. Before the WCJ, Claimant amended his petition to include a claim for specific loss of the le ft arm and facial disfigurement. In response, Employer amended its answer to include a denial of Claimant’s added allegations.

Initially, the WCJ noted Employer is a temporary employment agency that supplied Claimant’s services as a laborer to a company identified as “Insituform.” WCJ’s Op., 3/24/16, Finding of Fact (F.F.) No. 6. Claimant began working for Insituform in January 2013.

The WCJ summarized Claimant’s testimony as follows. On April 20, 2013, Insituform directed Claimant to enter a cylind rical tube to install a “turn

- rope.” F.F. No. 7a. Claimant explained that the turn

- rope process required him to crawl 18 feet into the tube, attach the turn

- rope, crawl an additional 3 feet and again attach
the turn

- rope at the 21

- foot mark. Id. Claima nt described the tube as inflated by a
fan to a diameter of approximately 37 inches. Id.

1 Act of June 2, 1915, P.L. 736, as amended , 77 P.S. §834.3 When Claimant was inside the tube attaching the rope, the fan became disconnected or stopped working, and the tube collapsed. F.F. No. 7b. Claimant
testified that once the tube collapsed, there was no longer any air in the tube , and he was breathing chemical fumes. Id. Claimant estimated he remained in the collapsed tube for up to two minutes without fresh air. Claimant believed he then lost
conscious ness

. Id. Thereafter, Employer pulled Cla i mant from the tube using safety ropes attached to his ankles. Id. After Claimant regained consciousness, Employer’s line leader directed Claimant to fix his clothing and go to the breakroom for the rest of the day. Id. T he incident occurred about one hour before the end of Claimant’s
shift. Id.

Following the Saturday incident, Claimant attempted to submit an injury report to Insituform. F.F. No. 7c. However, Insituform directed Claimant to report the injury to Employer. Id. When Claimant contacted Employer, he was told to call back on Monday and speak to Mary, the office manager. Id. Claimant made multiple attempts to call Mary on Monday, but failed to reach her

. Id.

On Monday afternoon, after receiving no response from Employer, Claimant sought emergency room treatment at Mercy Hospital in Scranton for symptoms of dizziness, nausea, headaches, shaking and slurred speech. F.F. No. 7d. Also, Claimant described a blackout lasting more than two hours Monday morning.
Id. Claimant denied having any of these symptoms prior to the Saturday work
incident. Id.4 Thereafter, Claimant sought emergency room treatment at the Geisinger C ommunity Medical Center , also in Scranton. F.F. No. 7 e . There,
Claimant treated with Dr. Iqbal Khan, a neurologist. Id. At Dr. Khan ’s direction, Claimant also began treating with Dr. Michael Fox. Id. Eventually, Dr. Fox referred Claimant to Dr. Dougl as Nathanson, also a neurologist. Id. At that time, Claimant stopped treating with Dr. Khan

. Id.

Claimant further described ongoing symptoms , including an inability to breathe normally, tremors, cramps, involuntary movements of his head and mouth, facial twitching, loss of balance, nausea, headaches, vision problems, vomiting, and inability to control his left arm and hand. F.F. No. 7g.

On cross

- examination, Claimant described his symptoms as “progressively worsening.” F.F. No. 7h. Claimant al so specifically denied that Employer made available to him any air mask, independent breathing equipment, safety glasses, lights, or a secondary air source when he entered the tube on April 20, 2013. Id.

Claimant also submitted the deposition testi mony of his treating physician, Dr. Lee T. Besen (Claimant’s Physician), who is board certified in family medicine and emergency medicine. F.F. No. 8. Claimant’s Physician has more than 30 years of experience in treating patients with brain in juries from various causes, including, hypoxia, strokes and head trauma. Id.5 Claimant’s Physician first examined Claimant in late January 2014. F.F No. 8a. Claimant provided a history of the work incident. More specifically,
Claimant stated he suffered exp os ure to chemical vapors while trapped inside a collapsed tube. Id. Claimant further indicated he lost consciousness for approximately one

- and

- a

- half to two minutes. Id. Claimant’s Physician’s physical
examination revealed Claimant suffered from involu ntary movement of his facial muscles, snorting, drooling and contortions. Id.

Claimant’s Physician described Claimant as having difficulty speaking. F.F. No. 8b. The doctor observed that Claimant had dysarthric speech and continual
movement of his entire left side , face, tru n k and arms , which is called “chor ei form

type movement” of his entire left side. Id. T he doctor further explained that
Claim ant suffered from an ataxic or unstable gait subject to involuntary and jerky

movements and repeated falls

. Id. Claimant’s symptoms remained consistent from the time of his initial disability examination continuing through Claimant’s Physician’s examinations. Id.

Claimant’s Physician also reviewed Claimant’s April 22, 2013 hospital

reco rds, which included a chest X

- ray and CAT scan following chemical inhalation,
loss of consciousness and speech. F.F. No. 8c. Four days later , Claimant underwent additional emergency treatment for stuttering and imbalance, which developed after
his chemic al exposure in the tube. Id. Claimant’s Physician also reviewed medical records from Dr. Khan, the neurologist who provided Claimant with follow

- up care after his emergency room visit. Id. Dr. Khan diagnosed Claimant’s condition as “sustained hypoxic i schemic and anoxic brain injury.” Id. Claimant’s Physician6

described Dr. Khan’s diagnosis as “consistent with his own diagnosis of Claimant’s
condition.” Id.

Based upon his multiple examinations, and his review of Claimant’s history and medical record s, Claimant’s Physician diagnosed Claimant as suffering from “hypoxia induced movement disorder; namely chor ei form movement, which is involuntary about his mouth, upper and lower extremities on the left, on his non

dominant side.” F.F. No. 8d. The doctor causally related Claimant’s condition to the April 20, 2013 work incident when the tube collapsed on Claimant. Id.
Claimant ’ s Phys ician further testified that Claimant failed to show any improvement during his treatment. Id. Therefore, the doctor opined, as a result of a hypoxia induced movement disorder, Claimant remained unable to perform gainful employment. Claimant’s Physician further opined that as a result of the brain injury Claimant sustained on April 20, 2013, his left upper extremity is dysfunctional. Id.

In opposition to Claimant’s claims, Employer submitted the deposition testimony of Kyle Rosse t ti (Coworker Rossetti ) , an Insituform employee who
worked with Claimant on the third shift. F.F. No. 9. On April 20, 2013, Coworker
Rossetti trained with Claimant and “Big Jim,” the line leader and another coworker, Anthony Aguilera. Id.

Coworker Rossetti testified that wh en going into the tube to perfor m the turn

- rope procedure, an employee wears normal work clothes , w h ich include safety glasses, long pants and safety shoes. Id. Rossetti further testified employees entering the tube wore leg shackles for emergency extraction

. Id. He also described7

an air fan, which he described as an “industrial sized steel box fan,” which inflated the tube or “bag.” Id.

Coworker Rossetti did not recall Claimant going into the tube without the safety equipment. Id. In addition, Rossetti did not recall anything unusual that happened while he worked with Claimant on April 19 and 20, 2013. Id. However,
Rossetti admitted his uncertainty as to whether he actually worked the third shift (10 :00 P.M to 6:00 A.M.) , or a double shift (10:00 P.M. to 2:00 P.M. the following day), or if he was on the first shift (6:00 A.M. to 2:00 P.M.) at the time of the
incident. Id. Nonetheless, Rossetti testified being inside similar tubes and being
able to breathe without an air hose. Id.

Employer also pre sented the testimony of Insituform’s Claim Manager, David Mark Jones (Claim Manager). F.F. No. 10. Claim Manager’s job duties
include knowledge of everything that goes on in the plant, from financial budgeting to dealing with regulatory agencies such as OSHA. Id. Claim Manager recalled that Claimant began working at Insituform in January 2013 as a temporary employee provided by Employer. Claim Manager t estified he would have been notified of
Claimant being caught in a collapsed tube. F.F. No. 10b. Ho wever, n obody informed Claim Manager of such an event occurring on April 19, 2013. Id.
Nonetheless , Claimant Manager admitted that an invoice from Employer indicat ed that Claimant worked on April 20, 21 and 22, 2013. Id.

Claim Manager acknowledged speaking with Claimant on April 22, 2013. F.F. No. 10c. However, he denied that Claimant mentioned any work injury.8

Id. Claim Manager acknowledged that after talking to Claimant, he called Employer and terminated Claimant’s services. Id.

Cla im Manager also acknowledged he called the local police to stop Claimant from making threatening and harassing phone calls to Insituform. F.F. No.
10d. However, Claim Manager denied contacting the police in retaliation for Claimant’s report of a work inj ury. Id. After that, Claimant stopped calling
Insituform. Id. Thereafter, Insituform began receiving OSHA complaints. Id.

Employer submitted the deposition testimony of Dr. Richard Bennett (IME Physician), a physician board certified in neurology a nd electromyography. F.F. No. 11. IME Physician performed an independent medical evaluation of
Claimant in November 2013. He took Claimant’s history. Id. Although Claimant indicated he suffered exposure to and inhalation of chemicals while inside a tu be, he did not report a loss of consciousness. Id. In addition, the records the doctor
reviewed did not indicate Claimant suffered a loss of consciousness. Id.

IME Physician testified Claimant’s movement disord e r did not fit any pattern. Id. Ultimat ely, IME Physician opined that the circumstances surrounding
the work incident described by Claimant were not indicative of Claimant suffering a hypoxic brain injury. Id. Rather, IME Physician proffered, Claimant’s symptoms might be related to “hysterica l paralysis.” Id.

On cross

- examination, IME Physician acknowledged that Claimant
could not use his left hand or arm at the time of his examination. F.F. No. 12. The9

doctor also admitted that he was unaware of Claimant’s condition prior to the date of his injury. Id. Nevertheless, IME Physician testified that Claimant could be malingering or have a serious psychological problem with an emotional component such as post

- traumatic stress disorder (PTSD). Id.

Employer also submitted other items i nto evidence, including a DVD
of the turn

- rope process; a report of workers’ exposure to styrene during normal production activities; a temporary worker safety

- training checklist signed by Claimant; a photo of safety equipment; and, a sample of the tubing material. F.F.
Nos. 13

- 17.

In addition, Employer offered into evidence Claimant’s pay stubs and
work record. F.F. No. 18. Claimant’s work record showed he worked at Insituform every day from April 3, 2013 through April 22, 2013. Id. In particular, Claimant worked eight hours each day from April 11, 2013 through April 22, 2013. Id.

Based on his observations of Claimant and his demeanor during the proceedings, the WCJ found Claimant’s testimony more credible and persuasive
than the deposition testimony of Coworker Rossetti regarding the work incident.
F.F. No. 20. The WCJ recognized a discrepancy between Coworker Rossetti’s testimony ( that the tube was not inflated during training ) and Claimant’s credible testimony ( that he was in side an inflated tube when it collapsed on him )

. Id. The WCJ also noted Coworker Rossetti’s admitted uncertainty as to how many shifts , or even what shift, he worked the day of the incident. Id.10 The WCJ found Claim Manager credible as to the prope r method to perform the turn

- rope process and the safety precautions that are in place. F.F. No. 21. The WCJ also found credible Claim Manager’s testi mony that he was unaware of any tubing collapse or injuries to Claimant on April 19, 2013. The WCJ note d
this is not inconsistent with Claimant’s credible testimony that the tube collapse occurred on April 20, 2013. Id.

With regard to the medical evidence, the WCJ deemed the testimony and opinions of Claimant ’ s Physician credible and persuasive. F.F. No . 22. Therefore, he accepted them as fact. Id. Where Claimant’s Physician’s testimony and opinions conflict ed with those of IME Physician, the WCJ accepted Claimant’s Physician’s testimony a s more persuasive than that of IME Physician, who examined Claimant on only one occasion. Id.

As found by Claimant’s Physician, Claimant suffers from a hypoxia
induced movement disorder affecting his face, mouth, and extremities on his left side causally related to the events of April 20, 2013 when the tube collapsed on
Claimant. Id. The doctor further opined that Claimant’s condition left him unable to perform gainful employment and resulted in a dysfunctional left upper extre mity.
Id.

Consequently, based upon a review of the testimony and other evidence, the WCJ found Claimant sustained a compensable injury under the Act when a tube collapsed on him during the course of his employment with Insituform.
F.F. No. 23. In supp ort of this determination, the WCJ cite d Claimant’s credible11

testimony that following the work incident, he b ega n experiencing stuttering, imbalance, involuntary movements of his face, mouth, and left upper extremity. Id. Claimant did not have these symp toms prior to the work incident. Id.

In addition, the WCJ found that the medical experts agreed, and Claimant credibly testified , as to his inability to use his upper left extremity for all intents and purposes. F.F. No. 24. However, the WCJ did not f ind that Claimant suffered a serious, permanent, and unsightly disfigurement of the head, neck or face as a result of his work injury. Id.

In accord with his findings, the WCJ determined that Claimant met the burden of proof in his claim petition for an injury described as a movement disorder affecting Claimant’s face, mouth and extremities on the left side. WCJ’s Op., Conclusion of Law (C.L.) No. 1. The injury left Claimant unable to perform gainful employment, resulting in temporary partial disability from April 20

- 22, 2013 , and total disability beginning April 23, 2013 and continuing into the future. Id.

The WCJ also determined Claimant satisfied his burden of proof for a specific loss claim for the use of his upper left extremity. C.L. No. 2. To that end, the WCJ awarded Claimant 410 weeks of disability with a potential healing period
of 20 weeks. Id.

On appeal, the Board affirmed. Employer petitions for review. 2

2 Our review is limited to determining whether the WCJ’s findings of fact were supported by substantial evidence, whether an error of law was committed or whether constitutional righ ts12 II. Discussion A. Capricious Disregard of Competent Evidence

1. Argume nt Employer first contends the WCJ capriciously disregarded material evidence, which included an independent medical evaluation performed in April 2014 by Dr. Paul M. Shipkin. Employer asserts Dr. Shipkin’s IME found that Claimant’s condition was psychog enic (arising from mental or emotional stress, or psychological or psychiatric disorders) in nature and that this opinion fully exculpated Employer.

Employer further argues the WCJ capriciously disregarded the medical report of D r . Douglas C. Nathanson, which corroborated IME Physician’s opinion that Claimant’s condition was not work

- related. Employer also asserts the WCJ improperly disregarded testimony that Claimant worked two days after the incident without any difficulties.

In addition, Employer as serts that Claimant’s Physician, in rendering his opinion, relied on information provided by Dr. Khan, a neurologist , who based his opinion on an inaccurate history provided by Claimant. Employer points out that Claimant’s Physician admitted on cross

- exam ination that Claimant told Dr. Khan that he developed severe involuntary movements , dizziness and vomiting the da y after the work incident. This account differs from the emergency room records,
which do not indic ate Claimant suffered from such symptoms or had any movement

were violated. Phoenixville Hosp. v. Workers’ Comp. Appeal Bd. (Shoap) , 81 A.3d 830 (Pa. 2013).13

problem with his left arm at that time. See Reproduced Record ( R.R. ) at 220a

- 26a. Claimant’s Physician also admitted Dr. Khan relied on Claimant’s history and did not review the hospital records. Id. at 226a. To that end, Claimant’s Physician agreed that the history Dr. Khan relied upon was not accurate. Id. at 227a. Therefore, Employer argues Claimant’s Physician’s opinion relied upon incompetent medical evidence

.

2. Analysis

T he WCJ, as the ultimate fact

- finder in workers ’ compensation cases , has exclusive province over questions of credibility and evidentiary weight. A & J Builders, Inc. v. Workers ’ Comp. Appeal Bd. (Verdi) , 78 A.3d 1233 (Pa. Cmwlth. 2013). As such, the WCJ may accept or r eject the testimony of a witness, including an expert witness, in whole or in part. Id.

Further, it is irrelevant whether the record contains evidence to support findings other than those made by the WCJ; the critical inquiry is whether there is
evidenc e to support the findings actually made. Furnari v. Workers ’ Comp. Appeal Bd. (Temple Inland) , 9 0 A.3d 53 (Pa. Cmwlth. 2014). W e examine the record in its entirety to see if it contains evidence a reasonable person would find sufficient to support the WC J’s findings. Id. If the record contains such evidence, the WCJ’s findings must be upheld. Id. In addition, we must view the evidence in the light most favorable to the prevailing party and give that party the benefit of all inferences reasonably deduc ible from the evidence. Id.14 Moreover, a capricious disregard of the evidence occurs only when the WCJ deliberately or baselessly disregards apparently trustworthy evidence.
Williams v. Workers ’ Comp. Appeal Bd. (USX Corp.

- Fairless Works) , 862 A.2d 137 (Pa. Cmwlth. 2004). Where there is substantial evidence to support a WCJ’s findings, and those findings support the WCJ’s legal conclusions, it should remain a rare instance in which an appellate court would disturb an adjudication based up on capricious disregard. Leon E. Wintermyer, Inc. v. Workers ’ Comp. Appeal Bd. (Marlowe) , 812 A.2d 478 (Pa. 2002). Further, where the WCJ discusses the evidence in question, but rejects it as less credible or assigns it less evidentiary weight than other evidence, the WCJ’s determination does not constitute a capricious disregard of that evi dence. Reed v. Workers ’ Comp. Appeal Bd. (Allied Signal, Inc.) , 114 A.3d 464 (Pa. Cmwlth. 2015).

a. Dr. Shipkin’s IME Our review of the record indicates Dr. Shipkin’s IME report is attached to IME Physician’s deposition as Exhibit Bennet 7. See R.R. at 46 5 a

- 74a. Dr. Shipkin examined Claimant on April 3, 2014 , for a neurologic IME. Following his examination, Dr. Shipkin arrived at the following diagnosis (with emphasis added) :

The working neurologic diagnosis is profound movement disorder ... beginning several days after 04/20/13 with negative MRI imaging early on (has not had a repeat study). The etiology for his clinical presentation is unclear although nonphysiologic features (memory, coordination, gait, etc.) make a psychogenic etiology high on our differential diagnostic list of considerations with an occult organic pathological process to be ruled out (toxic encephalopathic injury, ischemic brain insult, etc). If a psychogenic etiology is eventually determined to explain his clinical presentation this may be related to15 psychological trauma at the time of his 04/20/13 incident causing a conversion reaction (unconscious, a form of post

- traumatic stress disorder) or symptom magnification (conscious) for uncertain reasons.
[Claimant] does have a histo ry of psychological issues dating back a number of years with an ex

- girlfriend who lacerated his left arm with a knife as well as being a recovering alcoholic/substance abuser, etc. At this point in time there seems to be a strong temporal association wit h his incident on 04/20/13. I would, however, reserve judgment at present pending a movement disorder expert opinion at a major university center

. [Claimant] does require psychiatric and neurologic care. More specifically, an opinion by a movement disor der expert at a major university center such as the University of Pennsylvania is strongly recommended where more sophisticated testing can be accomplished. Based on his current status, he appears unable to maintain gainful employment and I would be happy to reassess this gentleman after the above noted evaluation

. R.R. at 473a.

Contrary to Employer’s contention, Dr. Shipkin’s IME does not exculpate Employer from liability . Rather, Dr. Shipkin stated the etiology or cause of Claimant’s condition was “ unclear .” Id. (emphasis added). Although a psychogenic etiology was “ high on the list, ” Dr. Shipkin noted that a toxic encephalopathic injury or ischemic brain insult had not been ruled out. Id. In particular, Dr. Shipkin stated that if a psychogenic e tiology is eventually determined to explain his clinical presentation , Claimant’s condition may be related to psychological trauma at the time of the April 20, 2013 incident

. Id.16 Medical testimony will be found unequivocal and thus capable of supporti ng a finding if the medical expert, after providing a foundation, testifies that
he believes a certain condition or fact exists. Campbell v. Workers ’ Comp. Appeal Bd. (Pittsburgh Post

- Gazette) , 954 A.2d 726 (Pa. Cmwlth. 2008). However, medical testimony which is based on mere possibilities is equivocal and must be deemed incompetent. Id. As such, Dr. Shipkin’s statement that the cause of Claimant’s condition was unclear and that it may be re lated to psychological trauma must be considered equivocal as to causation. Id.

In addition , Dr. S hipkin’s diagnosis is similar to that of IME Physician.
Like Dr. Shipkin, IME Physician indicated that Claimant’s movement disorder could have an emotional component like PTSD not caused by an injury to the brain, spinal
cord or nerves. See R.R. at 398a

- 99a . The WCJ rejected this testimony to the extent it conflicted with Claimant’s Phy s ician’s opinions , which described Claimant’s

c ondition as a hypoxia induced movement disorder causally related to the work incident. F.F. Nos. 8d, 22.

In sum, the WCJ accepted Claimant’s Physician’s opinion as more credible than Employer’s medical evidence asserting that Claimant’s movement
disorde r was psychogenic in nature. The WCJ, as fact

- finder, is the sole arbiter of credibility in workers ’ compensation cases. A & J Builders. As such, the WCJ did not err by failing to make explicit findings as to Dr. Shipkin’s similar report, which

was atta ched to IME Physician’s deposition. Moreover, as discussed above, Dr. Shipkin’s report failed to offer an unequivocal opinion that Claimant’s condition17

was psychogenic in nature and not work

- related. As such, Dr. Shipkin’s opinion
does not constitute com petent evidence show ing that Claimant suffered from a psychogenic cond i tion. Campbell

.

b. Dr. Nathanson’s Report Employer further contends the WCJ erred by failing to consider Dr. Nathanson’s report, attached to IME Physician’s deposition as Exhibit Bennett 5.
See R.R. at 272a

- 86a. Employer asserts Dr. Nathanson , a neurologist , opined that Claimant’s movement disor der was not work related. We disagree.

Claimant’s Physician was confronted with Dr. Nathanson’s report. Our
review of that report , and of Claimant’s Physician’s testimony about it, fails to reveal

a clear opinion by Dr. Nathanson as to causation

. Se e R.R. at 195a

- 96a; 229a

- 32a.

Regardless, the WCJ accepted Claimant’s Physician’s opinion that Claimant suffered from a hypoxia induced movement disorder caused by the work incident as more credible than Employer’s contradictory medical evidence . F.F. N o. 22. As noted, this determination falls within the exclusive province of the WCJ.
A&J Builders . Therefore, we reject Employer’s contention that the WCJ erred in failing to consider Dr. Nathanson’s report.

c. Dr. Khan ’s Report Employer also contends that the WCJ erred by failing to find Dr. Khan’s opinion incompetent because it was based on an inaccurate history provided18

by Claimant regarding the date he began experiencing involuntary movements and other sympt oms . Again, we dis agree.

Claimant’s Physician admitted on cross

- examination that Claimant told Dr. Khan that he developed severe involuntary movements, dizziness and vomiting the day after the work incident. See R.R. at 220a

- 26a. Employer asserts t his history
differed f rom the emergency room records, which do not indicate that Claimant suffered from these symptoms or had any movement problem with his left arm immediately following the injury. Id. Claimant’s Physician also admitted Dr. Khan relied on Claimant’s history a nd did not review the hospital records. Id. at 226a.

Nevertheless, Claimant’s Physician never recanted his opinion , and he never indicated that he relied solely on Dr. Khan’s report in reaching his determination that Claimant’s condition is work

- related . A medical expert’s opinion is not rendered incompetent unless it is based solely upon inaccurate or false
information. Newcomer v. Workmen ’ s Comp. Appeal Bd. (Ward Trucking Corp.) , 692 A.2d 1062 (Pa. 1997); Calex, Inc. v. Workers ’ Comp. Appeal Bd. (Van taggi) , 968 A.2d 822 (Pa. Cmwlth. 2009).

Whether or not Dr. Khan reviewed the hospital records , Claima nt’s Physician reviewed the records, including the initial emergency room records. F.F. 8c. Based on his review of Claimant’s history, medical re cords and his physical examinations, Claimant’s Physician opined Claimant suffered a hypoxia induced movement disorder causally related to the work incident. See R.R. at 197a

- 99a; F.F.
No. 8d. Given these circumstances, any inaccuracies in Dr. Khan’s rep ort do not19

render incompetent Claimant’s Physician’s opinions regarding Claimant’s work injury. Newcomer ; Calex

.

d

. Employer’s witnesses; Claimant’s last days of work Employer further contends the WCJ erred by incorrectly characterizing the testimony of its fact witnesses, Coworker Ro s setti and Claim Manager, and by failing to consider wage records showing Cla i mant worked two days after the work incident without any difficulties.

To begin, we note that a WCJ need not address every detail of the
evide nce in rendering a decision. Amandeo v. Workers ’ Comp. Appeal Bd. (Conagra Foods) , 37 A. 3 d 72 (Pa. Cmwlth. 2012). Here, the WCJ accepted Claimant’s testimony as more credible than that of Coworker Ro s setti regarding the date of the injury and the fact th at he was inside an inflated tube. F.F. No. 20. Claimant further testified he attempted to submit an injury report to Insituform the day of the incident, but the plant manager would not take a report and told him to contact Employer. F.F. No. 7c. This finding is supported by Claimant’s testimony.
See R.R. at 38a

- 39a.

The WCJ also found that Claimant ’s pay stubs and work history show that he worked full eight

- hour days each day from April 11 through April 22, 2013. F.F. No. 18. To that end, the WC J awarded Claimant partial benefits for April 20

- 22, 2013, and total disability benefits beginning April 23, 2013. C.L. No. 2. In this
way , the WCJ acknowledged that Insituform’s records show that Claimant worked two eight

- hour days after the work incide nt.20 Although the tube collapse occurred on April 20 , and Claimant worked for two more days, Claimant’s Physician testified that symptoms causally related to a hypoxic event can be progressive with a delayed onset. See R.R. 207a

- 12a. The WCJ accepted Claimant’s Physician’s testimony and opinions as fact. F.F. No. 22. In short, Claimant’s Physician never recanted his opinion . Therefore, we reject Employer’s contention on this issue

. Amandeo

.

B. OSHA Re port 1. Argument Employer n ext contends the WCJ abused his discretion by not allowing Employer to introduce into evidence an OSHA report on air quality and by not allowing Employer additional time to present arguments regarding the admissibility of the OSHA report under the official records exception in 42 Pa. C.S. § §610 3

- 04

.

At a hearing before the WCJ in Ap r il 2015 , Employer attempted to
introduce into evidence an investigative r eport , p repared by an OSHA air quality hygienist , regarding the air quality in all areas of Insituform ’s facility, including the
tube. See R.R. at 119a. Claimant’s counsel objected on the basis that the report was hearsay. Id. at 120a. Following argument by counsel as to whether the report was admissible under the business records exception to hearsay, the WCJ sustained Claimant’s objection and did not allow the report into evidence. Id. at 122a.

Nonetheless, the WCJ afforded Employer an opportunity to depose an OSHA representative within 30 days of May 15, 2015. Id. at 148a

- 49a. Employer,21

however, failed to d o so. On appeal here, Employer contends it attempted to subpoena the records, but received two letters from OSHA stating that OSHA investigators are prohibited from testifying in civil litigation with out permission of the Deputy Solici tor of the U.S. Department of Labor. See Pet’r’s Br. at 41

- 42. Instead, OSHA advised Employer to request the OSHA investigative file through the Freedom of Information Act (FOIA) , 5 U.S.C. §552

. Employer, however, previously obtained the OSHA report fro m Claimant , who obtained it in a FOIA request.

2. Analysis

A dmission of evidence is committed to the sound discretion of the
WCJ. Atkins v. Workers ’ Comp. Appeal Bd. (Stapley v. Germantown) , 735 A.2d 196 (Pa. Cmwlth. 1999). An abuse of discretion occur s where the WCJ’s judgment is manifestly unreasonable, the law is misapplied or the record shows the WCJ’s
action is the result of partiality, bias or ill

- will. Allegis Gr p. & Broadshire v. Workers ’ Comp. Appeal Bd. (Coughenaur) , 7 A.3d 325 (Pa. Cmwlth. 2 010).

Here, Employer ’ s Claim Manager attemp ted to introduce an OSHA investigative report which purportedly did not show any harmful chemical levels in the workplace or in the tube . R.R. at 119a

- 20a. Following the report, OSHA did not cite Employer for any violations. Id. at 122a.

Claimant objected to the report on hearsay grounds. Employer claimed the report was admissible as a business record. Id. at 120a. Claimant argued that
Claim Man a ger had nothing to do with the OSHA investigative report other than22

receiving it. Id. Rather, Claimant argued OSHA conducted the investigation and prepared the report , which discusse d “air quality on such and such date and such and
such a tube ....” Id. at 121a. The WCJ sustained Claimant’s objection. Id. at 122a.

Subsection (b) of the Uniform Business Records as Evidence Act provides (with emphasis added):

(b) General rule.

—

A record of an act, condition or event shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies as to its identity and the mode of its preparation, and if it was made in the regular course of business at or ne ar the time of the act, condition or event, and if, in the opinion of the tribunal, the sour c es of the information , method and time of preparation were such as to justify its admission

. 42 Pa. C.S. §6108(b). N ormally, whether a document should be a dmitted under the business records exception to the hearsay rule falls within the WCJ’s discretion. Virgo v. Workers ’ Comp. Appeal Bd. (Cty. of Lehigh Cedarbrook) , 890 A.2d 13 (Pa. Cmwlth. 2005).

Under this exception, it is not essential to produce either the person who
made the entries or the custodian of the record at the time the entries were made

. Id.
It is also not essential that the witness qualifying the business record has personal knowledge of the facts reported in the business record. Id

. Rather, as long as the authenticating witness can provide sufficient information regarding the preparation
and maintenance of the records to justify a presumption of trustworthiness of the entity’s business records, such is sufficient to offset the hear say character of the
evidence. Id. However, if a record is in the nature of an expert opinion or diagnosis,23

the record’s conclusions or impressions are not admissible as a business record unless the person who rendered the opinion is available for cross

- examination

. Id.

Claim Manager testified OSHA Representative Eileen Hoisen (OSHA Representative) performed the air quality check to determine whether there were any harmful chemical levels in the workplace. R.R. at 120a. Any conclusions or impressi ons as to the air quality by OSHA Representative, who was not available
for cross

- examination , would be inadmissible under 42 Pa. C.S. §6108(b). Virgo

.

Further, had Employer raised this issue before the WCJ, we believe the OSHA report also would have been inadmissible under the official records exception
in 42 Pa. C.S. § §6103

- 04. See First Ward Republican Club of Phila. v. Pa. Liquor
Control Bd. , 11 A.3d 38 (Pa. Cmwlth. 2010) (absent an authenticating witness who can provide sufficient information rel ating to the preparation and maintenance of the
record , the record is inadmissible under the official records exception). Here, OSHA Representative, not Claim Manager, prepared the investigate report and conclusions. In any event , b ecause OSHA Representative was not available for cross

- examination as to her findings and conclusions as to the quality of the air in the workplace , we see no error in the WCJ ’s determination to not admit the OSHA report into evidence. Virgo

.

C. Reasoned Decision
1 . Argument Employer further contends the WCJ failed to comply with the reasoned decision requirement in Section 422(a) of the Act. Employer asserts the WCJ’s24

decision was not reasoned because it is not based on the record as a whole. In particular, Empl oyer again argues the WCJ failed to review exculpatory evidence
includi ng Dr. Shipki n’s IME report, medical records and reports from Dr.
Nathanson , and hospital records which provided a contrary history to that provided by Claimant . Employer again asserts the WCJ failed to consider that Claimant worked two days after the incident. In short, Employer contends the WCJ’s failure to review this exculpatory evidence violated the reasoned decision requirement of
the Act.

2. Analysis

Section 422(a) requires the WCJ to issue a “ reasoned decision containing findings of fact and conclusions of law based upon the evidence as a whole which clearly and concisely states and explains the rationale for the decisions

... . ” 77 P.S. §834. A decision is “ reasoned ” if it allows for adequate appellate
review. Daniels v. Workers ’ Comp. Appeal Bd. (Tristate Transp.) , 828 A.2d 1043 ( Pa. 2003); Dorsey v. Workers ’ Comp. Appeal Bd. (Crossing Constr. Co.) , 893 A.2d 191 (Pa. Cmwlth. 2006).

Where medical experts testify by deposition, a WCJ ’ s resolution of conflicting evidence must be supported by more than a statement that one expert is
deemed more credible than another. Dorsey . The WCJ must articulate an actual objective basis for the credibility determination for the de cision to be “ reasoned .”
Daniels ; Dorsey

. As the Daniels Court explained:

[T]here are countless objective factors which may support the decision to accept certain evidence while ‘rejecting or discrediting competent [conflicting] evidence. ’ For25 example, an expert witness’s opinion may be based upon erroneous factual assumptions ... or an expert may have had less interaction with the subject ... or the interaction was in a less timely fashion ... or the expert may betray a bias or interest in the matter.

... In addition, an expert witness may be unqualified or less qualified than the opposing party’s expert; or may be impeached with inconsistencies or contradictions in his or her testimony or reports; or may be impeached in some other convincing fashion.

Id. at 1053 (citations omitted).

Here, Employer’s reasoned decision argument essentially restates its earlier argument that the WCJ improperly disregarded medical evidence corroborating IME Physician’s opinion. In our prior discussion rejecting these

ar guments, we recogni zed that the WCJ as fact

- finder may accept or reject the testimony of any witness, including a n expert witness, in whole or in part. A & J
Builders . Also, it is irrelevant whether the record contains evidence to support findings other than those made by the WCJ; the critical inquiry is whether there is evidence to support the findings actually made. Furnari

. Having determined the
WCJ did not err by declining to more favorably weigh Employer’s medical evidence, we need not revisit these arguments under the guise of a reasoned decision challenge.

Regardless, applying a standard reasoned decision analysis, we note the WCJ accepted Claimant’s Phys ician’s opinion as more credible than Employer’s contradictory medical evidence. F.F. No. 22. In particular, the WCJ noted that he found Claimant’s Physician’s testimony more persuasive than that of IME Physician, who examined Claimant on only one occasi on for purposes of an IME.
Id.26 Further, the WCJ found Claimant ’s testimony during the hearings
credible as to the fact he sustained a work injury as a result of being trapped in a tube collapse during the course of his employment located at Insituform. See F.F. Nos. 20, 21, 23. To that end, the WCJ found Claimant’s testimony regarding the incident more credible than that of Coworker Rossetti or Claim Manager. F.F. Nos. 20, 21. In making these findings, the WCJ noted that he observed Claimant and view ed his demeanor throughout the proceedings. F.F. No. 20.

Based on our review of the WCJ’s decision and the record, we conclude that the WCJ’s findings and credibility determinations are supported by substantial evidence and satisfy the reasoned decision requirement in Section 422(a) of the Act.
Daniels ; Dorsey

.

For the above reasons, we discern no error or abuse of discretion in the WCJ’s decision granting Claimant’s claim s against Employer for total disability and specific loss benefits for the work injuries he sustained as a result of being trapped in a tube collapse during the course of his assigned employment at Insituform

. Therefore, we affirm the Board’s order.

ROBERT SIMPSON, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Labor Ready Northeast, Inc. and : ESIS, : Petitioners :

: v. : No. 486 C.D. 2017
: Workers' Compensation Appeal : Board (Lasky), : Respondent :

O R D E R

AND NOW , this 22 nd day of February , 201 8 , for the reasons state d in the foregoing opinion, the order of the Workers' Compensation Appeal Board is
AFFIRMED

.

ROBERT SIMPSON, Judge