IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Richard D. Hissam, :

Petitioner :

:

v. : No. 1344 C.D. 2017

: Submitted: March 23, 2018

Workers’ Compensation Appeal Board :

(Chapman Business Properties), :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE BROBSON FILED: August 22, 2018

Richard D. Hissam (Claimant) petitions for review of an order of the 

Workers’ Compensation Appeal Board (Board), dated September 7, 2017. The 

Board affirmed the decision of a Workers’ Compensation Judge (WCJ), which 

denied Claimant’s claim petitions. We affirm.

Claimant worked for Chapman Business Properties (Employer) as a 

maintenance man. On June 3, 2014, Claimant filed a claim petition, alleging that on 

December 3, 2013, he sustained a neck injury in the nature of an aggravation of his 

foraminal stenosis at C5-6 and C6-7 while working for Employer dismantling heavy

industrial shelving. On that same day, Claimant filed a second claim petition, 

alleging that on December 12, 2013, he sustained a neck injury in the nature of an 

aggravation of his foraminal stenosis at C5-6 and C6-7 while working for Employer
2

using a heavy hammer drill in a contorted position. Claimant further alleged that he 

was disabled as of December 28, 2013, and ongoing thereafter as a result of both 

work-related injuries. 

In support of his claim petitions, Claimant testified before the WCJ at 

a hearing held on August 20, 2014. Claimant testified that he performed 

maintenance for Employer at its industrial park. (Certified Record (C.R.), Notes of 

Testimony (N.T.), August 20, 2014, at 8-9.) Claimant testified further that, on 

December 3, 2013, he injured his neck and left shoulder while disassembling 

industrial shelving with a sledgehammer. (Id. at 14-16.) Claimant explained that he 

began to experience numbness and pain in his neck and left shoulder while swinging 

the sledgehammer. (Id. at 15-16.) Claimant also testified that he injured his neck 

and left shoulder again on December 12, 2013. (Id. at 16-17.) On that date, Claimant 

was using a hammer drill to drill through five-to-six inches of concrete and cement. 

(Id.) Claimant explained that he was lying in a ditch pushing and pulling the drill 

over his head. (Id. at 17-18.) Claimant further explained that while drilling, the drill 

abruptly broke through the wall and jerked out of his hand, sending pain down his 

neck and left arm. (Id. at 18.) 

Claimant stated that his December 12, 2013 injury occurred “close to 

quitting time,” so he did not report it to his foreman until the following day. 

(Id. at 19-20.) Claimant indicated that after reporting the injury to his foreman, he 

left work to seek treatment from his personal doctor, Dr. Grieco. (Id.) Claimant 

testified further that he returned to work on December 16, 2013. (Id. at 20.) At that 

time, Claimant informed his foreman that his condition was work-related, and his 

foreman sent him to Employer’s panel doctor. (Id. at 21.) While treating with 

Employer’s panel doctor, Claimant continued to work for Employer in a limited-duty 
3

capacity until December 27, 2013, when he stopped working altogether. 

(Id. at 22-23.) Claimant stated further that Employer’s panel doctor discharged him 

from treatment on December 31, 2013. (Id. at 23.) At that time, Claimant returned 

to his personal doctor, who referred him to a specialist, Dr. Joon Lee (Dr. Lee). 

(Id. at 23-25.) Claimant testified that when he treated with Dr. Lee, he complained

of severe pain through his neck and down his left shoulder. (Id. at 25.) Claimant 

stated that Dr. Lee prescribed physical therapy and strength exercises. (Id. at 27.) 

Claimant stated further that Dr. Lee also recommended and ultimately performed 

surgery to treat his injury. (Id. at 25-26.) 

On cross-examination, Employer’s counsel questioned Claimant about 

an alleged tree stand incident. (Id. at 29-30.) Claimant testified that he never 

informed his co-workers that he injured his shoulder falling out of a tree stand. (Id.) 

Claimant stated that he does not even hunt out of tree stands. (Id. at 30-31.) 

Claimant stated further that he did not take his son hunting on December 2, 2013, 

the day he had taken off from work specifically to teach his son how to hunt. 

(Id. at 31.) Claimant also testified that while at work on December 3, 2013, he 

complained to Brandon Withers (Withers), one of his co-workers, about being “sore 

and stiff,” but he did not attribute the pain to their work disassembling the shelving. 

(Id. at 33-34.) Claimant testified further that he also did not say anything about the 

pain to his foreman or superintendent, nor did he seek any medical treatment for the 

December 3, 2013 injury. (Id. at 34-35.) Claimant indicated that on the day of the 

December 12, 2013 incident, he informed his foreman that he felt like a “bolt of 

lightning” shot through his body while using the heavy drill, but his foreman 

interpreted his statement as a joke. (Id. at 37-39.) Claimant indicated further that 

he did not explain to his foreman that it was not a joke or that he was in real pain. 
4

(Id.) Claimant also admitted that he did not say anything to his foreman about either 

of his injuries until December 13, 2013—ten days after the first work-related 

incident and one day after the second work-related incident.1 (Id. at 35-36.)

Claimant again testified at a hearing held on August 4, 2015. At that 

time, Claimant reiterated that he did not fall out of a tree stand in December 2013, 

and that he does not hunt from tree stands. (C.R., N.T., August 4, 2015, at 8.) 

Claimant also indicated that while he took off of work on December 2, 2013, to go 

hunting with his son, he and his son did not go hunting that day. (Id. at 9.) Claimant

admitted that, while in the break room with his co-workers a few days after the 

December 3, 2013 incident, he discussed his neck and shoulder pain and the potential 

causes of his injury. (Id. at 10-11.) Claimant stated that during that discussion, his

foreman joked that Claimant probably injured himself falling out of a tree stand. 

(Id.) Despite being questioned about the tree stand incident at the August 20, 2014 

hearing, this was the first time that Claimant mentioned anything about his 

foreman’s statements regarding Claimant falling out of a tree stand. (Id. at 11-12.) 

Claimant also presented the testimony of his son, Richard Shane 

Hissam (Son). Son testified that he, Claimant, and his grandfather would hunt 

together and that it was typical that Claimant would take off the first day of deer

hunting season to go hunting. (C.R., Depo. of Richard Shane Hissam at 21.) Son 

testified further that he and Claimant planned to go hunting the Monday following 

Thanksgiving in 2013, but the plans did not work out and neither he nor Claimant 

went hunting that day. (Id. at 21-23.) Son explained that he did not want to go 

hunting that year because his grandfather passed away in 2012, and, thus, would not 

 

1 Claimant also testified at a hearing held on April 28, 2015. Claimant’s testimony on that 

date is irrelevant to this appeal and, therefore, will not be discussed.
5

be with them. (Id. at 21-22.) Son also stated that while hunting with Claimant in 

the past, he never saw Claimant use a tree stand. (Id. at 23.) When he asked 

Claimant about tree stands, Claimant told him they are not safe. (Id.) On 

cross-examination, Son admitted that he did not have any discussions with Claimant 

about being injured at work. (Id. at 26-27.)

Claimant also presented the deposition testimony of Dr. Lee, who is

board certified and specializes in spine surgery. (C.R., Depo. of Dr. Lee at 4-6.) 

Dr. Lee testified that he evaluated Claimant on January 17, 2014, as a referral from 

Claimant’s primary care physician. (Id. at 7-8.) Dr. Lee explained that on that date

he performed a physical examination of Claimant, which revealed mild weakness 

and decreased sensation in Claimant’s left arm but no observable signs of jerkiness 

or hyperreflexia. (Id.) Dr. Lee explained that he initially believed that Claimant had 

developed a syrinx—i.e., a fluid buildup within the spinal cord—and that Claimant’s 

injury was an exacerbation of the syrinx. (Id.) As a result, Dr. Lee ordered a new 

MRI, which revealed spondylitic discs at C5-6 and C6-7 and some symmetric 

foraminal stenosis at C5-6 and C6-7. (Id. at 10.) Dr. Lee testified that he explained 

to Claimant that injections and ultimately surgery to decompress and fuse the nerves

may be required if Claimant’s attempts with physical therapy were unsuccessful. 

(Id. at 10-11.) Dr. Lee testified further that he ultimately performed the surgery on 

Claimant’s cervical spine on March 24, 2014. (Id.) Based on his treatment of 

Claimant, Dr. Lee opined within a reasonable degree of medical certainty that 

Claimant had sustained an exacerbation of spondylitic discs at C5-6 and C6-7. 

(Id. at 19-20.) When asked about whether the December 2 and December 12, 2013 

work-related incidents played a role in Claimant’s condition, Dr. Lee opined that 
6

Claimant’s main injury was consistent with the overhead, repetitive drilling activity 

with heavy equipment. (Id. at 21-22.)

On cross-examination, Dr. Lee admitted that his opinion as to the cause 

of Claimant’s injuries was based entirely upon the mechanism of injury provided to 

him by Claimant—i.e., that the injury was work-related. (Id. at 26-27.) Dr. Lee 

explained that he did not learn the specific details of Claimant’s work-related 

incidents until after he made his diagnosis. (Id. at 27-29.) In fact, Dr. Lee indicated 

that it was not until the day of his deposition that he learned about the two incidents 

that Claimant described at work. (Id. at 29.) Dr. Lee also admitted that his office 

notes from the January 17, 2014 visit did not include any history of a work-related 

injury or any indication that Claimant’s work activities caused Claimant’s condition. 

(Id. at 27-28.) Dr. Lee further admitted that a fall from a tree stand “certainly could 

be consistent” with Claimant’s symptoms. (Id. at 41.)

In opposition to Claimant’s claim petitions, Employer presented the 

deposition testimony of Withers. Withers testified that he, like Claimant, performed 

maintenance for Employer at its industrial park. (C.R., Depo. of Brandon Withers 

at 4.) Withers testified further that, on December 3, 2013, he worked with Claimant

the entire day, disassembling industrial shelving in the warehouse. (Id. at 7, 12.) 

Withers stated that, before lunch on that date, Claimant complained of discomfort 

and pain in his shoulder. (Id. at 8.) Withers stated further that after lunch, he and 

Claimant continued to disassemble the industrial shelving. (Id.) Withers also 

explained that, while in the breakroom with his co-workers after Claimant returned 

to work following the first day of deer hunting season, Claimant explained how he 

had fallen out of a tree stand and injured his shoulder. (Id. at 9.)
7

Employer also presented the deposition testimony of Martin Higgins

(Higgins), an investigator for Chubb and Son Insurance (Chubb) with 20 years of 

training and experience. (C.R., Depo. of Martin Higgins at 3-5.) Higgins explained

that as an investigator with Chubb, he is required to investigate claims that may be 

fraudulent or require more information. (Id. at 3-4.) Higgins explained further that 

Claimant’s claim was one of those claims that had been assigned to him for further 

investigation. (Id. at 6.) Higgins stated that he attempted to speak with Claimant 

multiple times to discuss the claim, and he finally spoke with Claimant on 

January 15, 2014. (Id. at 9-11.) Higgins testified, however, that when he told 

Claimant that he wanted to meet to discuss the claim, Claimant stated that his injury 

was not work-related, that he was no longer pursuing a workers’ compensation 

claim, and that he was not interested in meeting with Higgins. (Id.) Higgins testified 

further that he did not have the opportunity to ask Claimant if he had fallen out of a 

tree stand or if the injury had occurred outside of work because Claimant ended the 

call. (Id. at 20-21, 23-24.)

Employer also presented the deposition testimony of Raymond 

Drabicki, M.D. (Dr. Drabicki), who is board certified in orthopedic surgery and 

specializes primarily in arthroscopic surgery of the shoulder and knee. (C.R., 

Depo. of Dr. Drabicki at 4-5.) Dr. Drabicki testified that, based on his independent 

medical examination of Claimant, he opined within a reasonable degree of medical 

certainty that Claimant had sustained a hypertension injury to the cervical spine and 

neural compression. (Id. at 9-10.) Dr. Drabicki opined further that it was likely that 

Claimant’s work injury was responsible for his condition. (Id.) Dr. Drabicki further 

testified, however, that after receiving additional information, he believed that it was 
8

“equally plausible” that Claimant’s injury was caused by a fall from a tree stand. 

(Id. at 11-12.)

Claimant testified in rebuttal at the hearing held on November 10, 2015. 

At that time, Claimant testified that he thought Higgins’s call was a waste of time,

because Employer had already issued a notice of denial and Employer’s panel doctor 

had informed him that the injury was not work-related. (C.R., N.T.,

November 10, 2015, at 18.) Claimant also noted that he was in traffic when he 

received the call. (Id.)

On May 17, 2016, the WCJ issued a decision, denying Claimant’s claim 

petitions. In so doing, the WCJ summarized the witnesses’ testimony and made the 

following credibility determinations:

16. This [WCJ] finds the testimony of [Higgins] to be 

credible evidence in support of a finding that [Claimant]

stated on January 15, 2014 that his physical condition, his 

neck and shoulder complaints were not work-related and 

that he would not be pursuing a workers’ compensation 

claim. He credibly testified that [Claimant] declined to 

provide any further information and he did not have the 

opportunity to ask [Claimant] about the deer hunting tree 

stand version of the events.

17. The medical expert testimony of Dr. Drabicki is 

competent and credible evidence in support of a finding 

that [Claimant’s] physical condition could equally be due 

to an exacerbation of his pre-existing cervical arthritis as 

a result of his work duties in December of 2013 or as a 

result of the history of falling out of a tree stand when deer 

hunting on or about December 3, [2013]. . . . 

18. The testimony of [Withers] is credible testimony in 

support of a finding that [Claimant] told his co-worker that 

he fell from a tree stand while hunting on the first day of 

deer season. We know that to be December 2, 2013 and 

this discussion occurred on Tuesday, December 3, 2013[,]

the one occasion when [Claimant] and this witness worked 

together on the scaffolding disassembly project. Although 
9

the father of the witness is an employee of [Employer], 

there is no evidence that his employment relationship 

plays any role in this testimony, to the contrary one would 

presume that a witness’s employment was secure whether 

he testified or not. It is significant that [Claimant] did not 

state that this co-worker had any bias towards him. This 

co-worker stated that he did not have any problems with 

[Claimant], they worked well together.

19. The testimony of Dr. Lee is found credible, in part, 

in regards to his opinions that: (a) [Claimant] has a 

degenerative cervical spine condition with bone spurs 

were [sic] impacting the C6 and C7 nerves. These nerves 

were the exact area of [Claimant’s] shoulder, arm and 

hand complaints; (b) although the work activities were 

unknown to Dr. Lee and described to Dr. Lee immediately 

before his deposition he said they could cause an 

exacerbation of symptoms, [h]owever, Dr. Lee honestly 

conceded that any activities could cause an exacerbation.

More significantly, Dr. Lee stated that the work activities 

did not cause or change the pre-existing degenerative 

changes and bone spurs as these develop over time.

[Claimant] did not have a herniated disc or any signs of 

acute injury.

(WCJ’s Decision at 27-28.) With respect to Claimant’s credibility, the WCJ 

reasoned: 

This [WCJ] has carefully reviewed 

[Claimant’s] hearing testimony. [Claimant’s]

testimony that he aggravated his cervical spine 

condition as a result of his work activities on 

December 3 and/or December [12] of 2013 is not 

credible. This [WCJ] comes to this conclusion for 

several reasons, all of which are based upon as [sic] 

review of [Claimant’s] testimony.

[Claimant] did not immediately inform 

[Employer] of his alleged work-related symptoms of 

December 3, which is not fatal. He said he told 

[Employer] on December 13, after the prior day drilling 

assignment. BUT when [Claimant] appeared and 

testified at the hearing on August 4, 2015, he said the 

“deer hunting injury story” arose a few days after his 
10

arm/shoulder hurt and this story must have come from 

his [foreman]. This version is implausible as 

[Claimant’s] testimony was that he did not discuss his 

symptoms with [his foreman] until December 13.

At the initial hearing, on cross-examination 

[Claimant] adamantly stated that he did not tell any 

co-workers that he was injured when he fell from a tree 

stand while deer hunting. “Never happened”. At the 

next hearing [Claimant] now says this incident did 

happen, but he now said it was his [foreman] who told 

this story. [Claimant] described there were at 

least 4 other co-workers present. Yet he did not present 

any witness to corroborate his testimony or his version 

of events.

Regarding the hunting incident, [Claimant]

said he planned this day off work on December 2, 2013 

to train [Son] how to hunt. Yet [Son’s] testimony was 

that he hunted in the past with his father and 

grandfather. This planned 2013 hunting trip did not 

occur because of the grandfather [sic] death about one 

year earlier in 2012.

The version of events described by 

[Claimant] seem atypical, his shoulder was bothering 

him one day. He mentions to his co-worker that his 

shoulder was bothering him, but did not describe it was 

from the work duties and did not describe there was any 

numbness, tingling, sharp pain or soreness. He does 

not mention this to anyone else. He continues to work 

his regular job for 10 days, without any comment or 

excuse.

[Claimant] describes pain on December 12 

after drilling, which is 100 times his prior discomfort.

He describes symptoms so dramatic -- “a bolt of 

lightning went right down my body”, “it just came 

down my neck and shot out my arm” -- that his 

[foreman] thought he was joking. Again, there is an 

inconsistency in [Claimant’s] testimony as he says it 

was near the end of the work day so he did not say 

anything, “it might have been the next day”.

[Claimant] goes home on the 12th and the 

next morning he asks his [foreman] to go to his 
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personal doctor. [Claimant] claims he told his 

[foreman] that this request was for a work-related 

problem, but that seems inconsistent with [Employer’s]

action on Monday, the 16th. On that occasion, when 

[Claimant] mentions his condition is work-related, his 

[foreman] immediately sends [Claimant] to the 

designated healthcare practitioner. It seems odd this 

would not be the [foreman’s] response on the 12th, if 

[Claimant] truly stated he had a work-related problem.

When [Claimant] is contacted by the Chubb 

insurance investigator, [Claimant] will not discuss his 

claim with him. It’s not worker’s comp. This 

telephone call happened January 15, just two days 

before the first Dr. Lee appointment of January 17.

Recall, at the first Dr. Lee visit, the office notes do not 

reflect that [Claimant] gave any history of a 

work-related injury or that work activities caused him 

to have symptoms.

(Id. at 28-29.)

Based on her credibility determinations and reasoning, the WCJ

concluded that Claimant failed to meet his burden of proving that he suffered a 

work-related injury on December 3 or December 12, 2013. (Id. at 30.) Claimant 

appealed the WCJ’s decision to the Board, which affirmed the WCJ’s decision. 

Claimant now petitions this Court for review.

On appeal,2 Claimant argues that the WCJ erred by failing to provide a 

reasoned decision as required by Section 422(a) of the Workers’ Compensation Act

(Act).

3

 More specifically, Claimant argues that the WCJ’s decision is not reasoned 

because: (1) the WCJ applied the incorrect burden of proof to Claimant’s claim 

 

2 Our standard of review is limited to determining whether constitutional rights were 

violated, whether an error of law was committed, or whether necessary findings of fact are 

supported by substantial evidence. Section 704 of the Administrative Agency Law, 

2 Pa. C.S. § 704.

3 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 834.
12

petitions; (2) the WCJ misapplied the “missing witness rule” and drew an

impermissible, adverse inference against Claimant;

4

and (3) the WCJ failed to find 

that Claimant’s medical evidence was unequivocal and competent.5

Section 422(a) of the Act provides, in pertinent part, that all parties in 

a workers’ compensation case are “entitled to 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 so that all 

can determine why and how a particular result was reached.” The decision of a WCJ 

is “reasoned” if it allows for meaningful appellate review without further 

elucidation. Daniels v. Workers’ Comp. Appeal Bd. (Tristate Transp.), 

828 A.2d 1043, 1052 (Pa. 2003). In order to satisfy this standard, a WCJ does not 

need to discuss every detail of the evidence in the record. Dorsey v. Workers’ Comp. 

Appeal Bd. (Crossing Constr. Co.), 893 A.2d 191, 194 n.4 (Pa. Cmwlth. 2006), 

appeal denied, 916 A.2d 635 (Pa. 2007). Rather, Section 422(a) of the Act requires 

WCJs to issue reasoned decisions so that this Court does not have to “imagine” the 

reasons why a WCJ finds that the testimony of one witness was more credible than 

the testimony of another witness. Id. at 196.

Under Section 422(a) of the Act, a WCJ must articulate the objective 

rationale underlying his or her credibility determinations where there is conflicting

witness testimony. Id. A WCJ may satisfy the reasoned decision requirement if she 

 

4 Claimant also suggests that the WCJ again misapplied the “missing witness rule” by not 

drawing an adverse inference against Employer for its failure to call Claimant’s foreman as a 

witness. This argument lacks merit and need not be addressed, because Employer did not have the 

burden of proof with respect to Claimant’s claim petitions.

5

In his brief, Claimant presented three issues for our consideration, all of which relate to 

whether the WCJ’s decision was a reasoned decision. Because all of Claimant’s arguments are 

interrelated, we will address them together.
13

summarized the witnesses’ testimony “and adequately explained [her] credibility 

determinations.” Clear Channel Broad. v. Workers’ Comp. Appeal Bd. (Perry), 

938 A.2d 1150, 1157 (Pa. Cmwlth. 2007), appeal denied, 951 A.2d 1167 (Pa. 2008). 

Thus, “while summaries of testimony alone would be insufficient to satisfy the 

reasoned decision requirement, where a WCJ summarizes testimony and also 

objectively explains [her] credibility determinations, the decision will satisfy the 

requirement.” Amandeo v. Workers’ Comp. Appeal Bd. (Conagra Foods), 

37 A.3d 72, 76 (Pa. Cmwlth. 2012).

Claimant first contends that the WCJ failed to make a reasoned decision 

because the WCJ applied an incorrect burden of proof. Claimant argues that the 

WCJ imposed a heightened burden of proof upon him—i.e., not just a preponderance

of the evidence—by instead requiring unequivocal proof. In response, Employer 

argues that Claimant had the burden to prove that his injury was work-related 

through competent, credible, substantial evidence. Employer also argues that 

Claimant failed to meet his burden of proof because the WCJ found his testimony to 

be not credible.

Claimant’s entire argument is based on a misinterpretation of the 

WCJ’s decision. Claimant focuses solely on the medical evidence, but ignores the 

fact that the WCJ’s conclusion that Claimant did not meet his burden of proof was 

based on the WCJ’s determination that Claimant’s testimony regarding the cause of 

his injury was not credible. In other words, while the WCJ made credibility 

determinations with respect to the medical testimony, such medical testimony 

essentially had no effect on the WCJ’s decision. Rather, the WCJ’s decision was 

based upon her finding that Claimant’s testimony as to the cause of his injuries was 
14

not credible. In finding that Claimant’s testimony was not credible, the WCJ noted 

several inconsistencies in Claimant’s testimony. 

First, the WCJ noted that Claimant’s stated purpose for taking the first 

day of deer hunting season off of work—i.e., to teach Son how to hunt—seemed

inconsistent, because Son testified that he went hunting with Claimant and his 

grandfather in the past. (WCJ’s Decision at 29.) Second, the WCJ explained that it 

seemed atypical that Claimant told his co-worker that his shoulder was bothering 

him, but then he did not state that his work activities caused his injury or discuss the 

injury with any co-workers for ten days. (Id.) Third, the WCJ noted that Claimant’s 

version of events was not plausible, because Claimant testified that he did not discuss 

his symptoms or injuries with his foreman until December 13, 2013, but yet the “deer 

hunting injury story,” which was allegedly made up by his foreman, was discussed

a few days after December 3, 2013. (Id. at 28-29.) Fourth, the WCJ noted that 

Claimant’s initial testimony that the tree stand conversation never happened was 

inconsistent with Withers’s testimony and his own subsequent testimony on

August 4, 2015. (Id. at 29.) Fifth, the WCJ noted the inconsistencies in Claimant’s 

testimony regarding the reporting of his December 12, 2013 injury to his foreman. 

(Id.) The WCJ explained that Claimant described his pain as so dramatic and 

severe—i.e., like “a bolt of lightning went right down my body”—that his foreman 

thought Claimant was joking, yet Claimant did not remember if he even told his 

foreman about the pain on the date of the incident or if he waited until the next day. 

(Id.) Lastly, the WCJ noted that Claimant’s testimony that he told his foreman that 

his injury was work-related on December 13, 2013, seemed inconsistent with 

Employer’s actions on December 16, 2013. (Id.) The WCJ explained that it seemed 

odd that Claimant’s foreman would not have sent Claimant to Employer’s panel 
15

doctor on December 13, 2013, if Claimant had told him his injury was work-related, 

because Claimant’s foreman immediately sent Claimant to the panel doctor on 

December 16, 2013, after Claimant mentioned that the injury was work-related. 

(Id.) 

In addition to noting the inconsistencies in Claimant’s testimony, the 

WCJ also credited Withers’s testimony that Claimant told Withers that he fell from 

a tree stand while hunting, and Higgins’s testimony that Claimant told Higgins that 

his injury was not work-related and that he would not be pursuing a workers’ 

compensation claim. (Id. at 27-28.) It is clear from our review of the record and the 

WCJ’s decision that the WCJ adequately and objectively explained her credibility 

determinations based on the conflicting evidence before her as required by 

Section 422(a) of the Act. 

Claimant next contends that the WCJ’s decision was not reasoned 

because the WCJ misapplied the “missing witness rule” and drew an impermissible,

adverse inference against Claimant for his failure to present the testimony of his 

co-workers present during the “tree stand discussion” and his treating physician, 

Dr. Grieco. More specifically, Claimant argues that the application of the “missing 

witness rule” is impermissible with respect to his co-workers because his co-workers 

were not peculiarly within his control. Claimant argues further that an adverse 

inference with respect to Dr. Grieco was also impermissible because such an 

inference cannot be drawn with respect to treating physicians. In response, 

Employer argues that nothing in the WCJ’s decision reflects that any adverse 

inference was made for Claimant’s failure to present Dr. Grieco’s testimony.

Generally, if a party fails to call a witness whose testimony presumably 

would support his allegation, “the opposing party is entitled to have the jury 
16

instructed that it may infer that the witness, if called, would testify adversely to the 

party who failed to call him.” Bentivoglio v. Ralston, 288 A.2d 745, 748 (Pa. 1972). 

The missing witness rule provides that

[w]here evidence which would properly be part of a case 

is within the control of the party whose interest it would 

naturally be to produce it, and without satisfactory 

explanation he fails to do so, the jury may draw an 

inference that it would be unfavorable to him. 

Haas v. Kasnot, 92 A.2d 171, 173 (Pa. 1952). Our Supreme Court interpreted the 

“missing witness rule” to be inapplicable if the witness in question is equally 

available to both sides in the litigation. Bentivoglio, 288 A.2d at 748. “In other 

words, the inference is permitted only where the uncalled witness is peculiarly 

within the reach and knowledge of only one of the parties.” Allingham v. Workmen’s

Comp. Appeal Bd. (City of Pittsburgh), 659 A.2d 49, 53 (Pa. Cmwlth. 1995) (citing 

Bentivoglio, 288 A.2d at 748), appeal denied, 672 A.2d 310 (Pa. 1996). 

Here, it does not appear that the WCJ drew any adverse inferences

against Claimant for his failure to present the testimony of his co-workers or 

Dr. Grieco. While the WCJ noted that Claimant did not present medical testimony 

from Dr. Grieco in her factual findings, the WCJ did not use that factual finding in 

her reasoning. Similarly, the WCJ merely noted the fact that Claimant did not 

provide the testimony of his co-workers that were present during the “tree stand 

discussion,” but again, did not use her finding as part of her analysis. Claimant has 

also not directed us to, nor can we find, any statement within the WCJ’s decision 

that specifically indicates that the WCJ drew an adverse inference against Claimant 

when making her determination. For these reasons, we conclude that the WCJ did

not misapply the “missing witness rule” or draw an impermissible, adverse inference 

against Claimant for failing to provide the testimony of Dr. Grieco or his co-workers. 
17

Claimant finally contends that the WCJ’s decision was not reasoned 

because the WCJ failed to find that Claimant’s medical evidence was unequivocal 

and competent. More specifically, Claimant challenges the WCJ’s credibility 

determinations regarding Dr. Lee’s medical testimony and argues that the WCJ’s 

analysis with respect to Dr. Lee’s testimony is flawed because the WCJ does not 

understand what it means for medical testimony to be unequivocal. In response, 

Employer argues that an assessment of Dr. Lee’s testimony reveals vague and 

contradictory opinions regarding the cause of Claimant’s injury and, therefore,

Dr. Lee’s testimony is equivocal and not legally competent evidence.

Here, the WCJ found that there was insufficient medical evidence to 

unequivocally find that Claimant was injured as a result of work activities. 

(WCJ’s Opinion at 28.) This finding appears to be entirely based upon the WCJ’s 

determination that Claimant’s testimony regarding the cause of his injuries was not 

credible. Dr. Lee admitted that his opinion regarding causation was based entirely 

on the history learned from Claimant. Once the WCJ found Claimant’s testimony 

to be not credible, there is no factual basis to support Dr. Lee’s testimony that 

Claimant’s injuries were work-related. In fact, Claimant even acknowledges in his 

brief that the medical opinions regarding any work-related cause for his injuries 

assume that the history provided by Claimant was correct. 

(See Claimant’s Br. at 23.) For these reasons, we conclude that the WCJ did not err 

by failing to find that Claimant’s medical evidence was unequivocal and competent.

For the reasons set forth above, we conclude that the WCJ did not fail 

to issue a reasoned decision. Accordingly, we affirm the Board’s order.

P. KEVIN BROBSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Richard D. Hissam, :

Petitioner :

:

v. : No. 1344 C.D. 2017

:

Workers’ Compensation Appeal Board :

(Chapman Business Properties), :

Respondent :

O R D E R

AND NOW, this 22nd day of August, 2018, the order of the Workers’ 

Compensation Appeal Board is hereby AFFIRMED.

P. KEVIN BROBSON, Judge