IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Augustine Sesay, :

Petitioner :

: No. 551 C.D. 2022

v. :

: Submitted: February 10, 2023

Southeastern Pennsylvania :

Transportation Authority (Workers’ :

Compensation Appeal Board), :

Respondent :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE McCULLOUGH FILED: January 31, 2024 

In this workers’ compensation appeal, Petitioner Augustine Sesay 

(Claimant or Sesay) petitions for review, pro se, of the April 21, 2022 order of the 

Workers’ Compensation Appeal Board (Board), which affirmed the August 27, 2021 

order of Workers’ Compensation Judge Denise Krauss (WCJ). The WCJ (1) granted, 

in part, and denied, in part, Claimant’s Petition to Review Compensation Benefits 

(Review Petition); (2) granted the Petition to Suspend Compensation Benefits 

(Suspension Petition) filed by Respondent Southeastern Pennsylvania Transportation 

Authority (Employer or SEPTA); and (3) denied Employer’s Petition to Terminate 

Compensation Benefits (Termination Petition). In his Petition for Review (PFR) and 

brief, Claimant argues that (1) his counsel “suppressed” evidence of Claimant’s PostTraumatic Stress Disorder (PTSD) and failed to seek amendment of the description of 

Claimant’s injury to include PTSD; and, relatedly, (2) the WCJ erred in finding that 
2

Claimant could return to work in his pre-injury position with Employer. After careful 

review, we affirm.

I. FACTS AND PROCEDURAL HISTORY

The Board summarized many of the pertinent facts underlying this appeal

as follows: 

Claimant sustained a work injury to his eye during the course 

and scope of his employment with [Employer] on May 18, 

2018. On June 5, 2018, [Employer] issued a Notice of 

Temporary Compensation Payable (NTCP), agreeing to pay 

medical and indemnity benefits for an injury described as a 

laceration of Claimant’s eye/face. The NTCP converted to a 

Notice of Compensation Payable (NCP) by operation of law. 

On November 5, 2019, [Employer] filed [the Suspension 

Petition], requesting [that] the WCJ suspend Claimant’s 

benefits based on a specific job offer made by [Employer]. 

On November 15, 2019, Claimant filed [the Review 

Petition], averring an incorrect NCP work-injury description. 

Claimant specifically sought to amend the NCP injury 

description to include “[t]raumatic [h]yphema, [v]itreous 

[d]egeneration, [m]acular [e]dema and loss of sight of the 

right eye.”

On December 10, 2019, [Employer] filed [the Termination 

Petition], alleging that Claimant had fully recovered from his 

work injuries as of October 3, 2019.

(Board Opinion (Op.), Certified Record (C.R.) Document (Doc.) 19, at 1-2.) The 

Suspension, Review, and Termination Petitions were consolidated for a hearing before 

the WCJ on February 5, 2021. At the hearing, Claimant testified on his own behalf 

and submitted, in addition to several medical exhibits, a transcript of his deposition 

taken February 28, 2020. Employer presented the deposition testimony of Dr. Kenneth 

S. Schindler, who conducted an independent medical examination of Claimant on 

October 3, 2019. 
3

During the hearing before the WCJ, a question arose regarding whether 

Claimant sought to add PTSD to the description of his injury. The following exchange 

occurred among Claimant, Claimant’s counsel (Attorney Magaldi), Employer’s 

counsel (Attorney Wagner), and the WCJ: 

[WCJ]: Just for my edification[,] there’s a Review Petition[;] 

what is the basis of that? 

Attorney Magaldi: The basis is we want to expand the 

diagnosis of the eye injury which I believe [Employer’s 

Counsel] agreed to. 

[WCJ]: Okay. So, we’re not going to discuss the PTSD in 

the decision then if it hasn’t been alleged.

[Claimant]: I did talk to my lawyer. 

[WCJ]: I’m talking to Mr. Magaldi. 

[Claimant]: I’m sorry. 

[WCJ]: Okay. 

Attorney Magaldi: Correct, Judge.

. . . . 

Attorney Wagner: Sir, did your PTSD prevent you from 

looking for any work[?] Is that correct? 

[Claimant]: The PTSD does not prevent me, no, from 

looking for work, but if I’m going—the lady told me 

exactly—the psychiatrist told me exactly that I need to find 

a job within an area. 

. . . . 

(Notes of Testimony (N.T.), February 5, 2021, at 33-34; C.R. Doc. 22.) 

By [ ] Decision and Order circulated on August 27, 2021, the 

WCJ granted in part and denied in part Claimant’s Review 

Petition, granted [Employer’s] Suspension Petition, and 

denied [Employer’s] Termination Petition. The WCJ found 

that Claimant’s work injury description should be expanded 

to include traumatic hyphema and macular edema, as 

stipulated by the parties. The WCJ determined that Claimant 
4

failed to establish that he sustained vitreous degeneration 

and/or specific loss of use of the right eye as a result of the 

work incident. The WCJ concluded that Claimant was 

physically able to perform the pre-injury position offered by 

[Employer] as of November 3, 2019. The WCJ further 

determined that [Employer] failed to establish that Claimant 

fully recovered from his work injuries. 

(Board Op. at 2.) In particular, the WCJ credited Claimant’s testimony regarding how 

he sustained the injury to his eye and his ongoing subjective symptoms of eye pain and 

related difficulties. (WCJ Findings of Fact (FOF) 11(a).) The WCJ discredited 

Claimant’s testimony that he was unable to return to work in his pre-injury capacity 

and that he had lost all vision in his injured eye because the WCJ found that Claimant’s 

testimony was credibly rebutted by Employer’s medical witness, Dr. Schindler. Id. 

The WCJ found Dr. Schindler’s testimony to be credible to the extent that 

he testified that Claimant suffered a traumatic hyphema and macular edema but 

nevertheless could return to his pre-injury position with Employer. (FOF 11(b).) The 

WCJ further found Dr. Schindler’s testimony that Claimant was fully recovered from 

his injury to be not credible, chiefly because Dr. Schindler’s opinions in this regard 

contradicted (1) Claimant’s subjective, ongoing complaints of eye pain, blurriness, and 

vision loss in his injured eye; (2) the medical records from Claimant’s treating 

physicians; and (3) the report of Claimant’s independent medical examiner, Dr. 

Edward A. Deglin. Id. The WCJ accordingly concluded that, although Claimant 

suffered traumatic hyphemia and macular edema, he did not “suffer a specific loss of 

use of the right eye for all practical intents and purposes,” “was physically capable of 

performing the offered pre-injury job position at his regular rate of pay as of November 

3, 2019,” and “was not fully recovered from the injuries related to the May 18, 2018 

work incident . . . .” (FOF 11(c)-(g).) 
5

Claimant appealed to the Board, arguing that he is not fully recovered 

from his injury and is not able to perform all of the duties of his pre-injury position. 

(C.R. Doc. 13.) Notably, Claimant did not challenge before the Board any of the 

WCJ’s evidentiary findings and did not argue that his counsel suppressed evidence or 

was otherwise negligent or ineffective in not seeking to add PTSD to the description 

of Claimant’s injury. Id. Employer also appealed to the Board, arguing that the WCJ

erred in denying the Termination Petition based on the finding that Claimant was not 

fully recovered from his injury, which finding Employer alleged was not supported by 

substantial evidence. (C.R. Doc. 15.) 

The Board affirmed, concluding first that the WCJ did not err or abuse her 

discretion in denying Employer’s Termination Petition based on a finding that 

Employer had not established that Claimant was fully recovered from his work injury. 

Id. at 11. The Board also concluded that Claimant did not establish that his counsel’s 

conduct in declining to present any medical evidence of Claimant’s PTSD to the WCJ 

warranted a remand for rehearing. Id. at 13-14. 

Claimant now appeals to this Court pro se. 

II. ISSUES PRESENTED1

From what we can glean from Claimant’s PFR and brief, he raises two 

issues in this appeal: (1) whether the Board erred in affirming the WCJ’s finding that 

Claimant is capable of returning to his pre-injury position with Employer; and (2) 

whether Claimant was denied due process because of his counsel’s “suppression” of 

1 Our standard of review of a Board order limits us to determining whether the necessary 

findings of fact are supported by substantial evidence, whether an error of law or a violation of Board 

procedure has occurred, or whether constitutional rights were violated. Republic Steel Corp. v. 

Workmen’s Comp. Appeal Board (Petrisek), 640 A.2d 1266, 1268 (Pa. 1994). “Substantial evidence” 

is “such relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” 

Valley View Civic Association v. Zoning Board of Adjustment, 462 A.2d 637, 640 (Pa. 1983) (citations 

omitted). 
6

evidence that would have established that Claimant suffers from PTSD, which 

condition precludes his return to his pre-injury position.2 For the sake of logical 

consistency, we address the issues in reverse order. 

III. DISCUSSION3

A. PTSD

Regarding Claimant’s contention that his counsel wrongfully 

“suppressed” evidence of PTSD, we address Employer’s last argument first because it 

is dispositive. Employer argues that Claimant has waived the issues he raises on appeal 

because his appeal form filed with the Board is defective. We agree, in part. 

Section 111.11(a) of Chapter 111 of the Special Rules of Administrative 

Practice and Procedure before the Board establishes the form and content requirements

for appeals from a WCJ decision. 34 Pa. Code § 111.11(a). Section 111.11(a)(2) 

requires that an appeal contain “[a] statement of the particular grounds upon which the 

appeal is based, including reference to the specific findings of fact which are challenged 

and the errors of the law which are alleged.” Id. It further provides that “[g]eneral 

allegations which do not specifically bring to the attention of the Board the issues 

decided are insufficient.” Id. Failure to adequately raise issues in the Board’s appeal 

2 Claimant at times argues that he is not “fully recovered” from his work injury. The WCJ 

found that Claimant was not fully recovered and, accordingly, denied Employer’s Termination 

Petition. The Board affirmed, and Employer has not petitioned for review in this Court. Thus, 

whether Claimant is fully recovered is not before us. Rather, the pertinent question is whether 

Claimant presently is capable of returning to his pre-injury position with Employer, notwithstanding 

his ongoing symptoms. 

3 Claimant attaches to his PFR and briefseveral documents that appear nowhere in the certified 

record and that post-date the hearing before the WCJ. In rejecting Claimant’s previous noncompliant 

brief, we directed him to refrain from attaching documents that were not made part of the record 

before the WCJ. See Order, 10/4/2022; see also Pennsylvania Rule of Appellate Procedure 1951; 

B.K. v. Department of Public Welfare, 36 A.3d 649 (Pa. Cmwlth. 2012). He once again has done so, 

and we once again reject their consideration in this appeal. 
7

form can result in waiver. Jonathan Sheppard Stables v. Workers’ Compensation 

Appeal Board (Wyatt), 739 A.2d 1084, 1089 (Pa. Cmwlth. 1999). 

In Claimant’s appeal to the Board, he generally argued that he could not 

return to work because of ongoing symptoms in his injured eye and certain mental 

conditions, including PTSD. (C.R. Doc. 13.) He nowhere challenged any specific 

findings of fact, conclusions of law, or rulings of the WCJ and, most importantly, does 

not anywhere lodge a challenge to his counsel’s conduct during the hearing before the 

WCJ. We also cannot find in the certified record any indication that he otherwise 

adequately raised this issue before the Board. “The law is well settled that issues not 

raised before the Board are waived and cannot be raised for the first time before this 

Court.” Myers v. Workers’ Compensation Appeal Board (Family Heritage 

Restaurant), 728 A.2d 1021, 1023 (Pa. Cmwlth. 1999). Further, while the Board chose 

to review the question of whether Claimant’s counsel erred in failing to present 

evidence of Claimant’s PTSD, see Board Op. at 13-14, that does not change the fact 

that Claimant failed to comply with the requirements set forth in 34 Pa. Code § 

111.11(a)(2). Thus, and notwithstanding the Board’s analysis, we conclude that this

issue is waived.

Moreover, even if this issue properly was before us, it would be without 

merit. The Board concluded: 

Unfortunately, the issues that Claimant appeals are of a 

private attorney-client nature and are not matters within [the] 

Board’s scope to resolve. Moreover, the stipulations made 

by Claimant’s counsel are binding on Claimant in his 

litigation of the case. Additionally, while . . . the Board may 

remand a matter for the presentation of additional evidence 

where the circumstances suggest that the actions of the 

claimant’s attorney in failing to submit certain named 

evidence could lead to manifest injustice to the claimant, the 

Board is not obligated to order a rehearing every time a 
8

losing party can point to some evidence which his attorney 

did not introduce. [Martell v. Workers’ Compensation 

Appeal Board (Doyle Equipment), 707 A.2d 242 (Pa. 

Cmwlth. 1998); Bickel v. [Workmen’s Compensation Appeal 

Board] (Williamsport Sanitary Authority), 538 A.2d 661 (Pa. 

Cmwlth. 1988).] Where counsel has medical evidence . . . 

during the WCJ proceedings, and the reasons for not 

presenting it “are as readily explained as strategic decisions 

as negligence,” there is no basis for a rehearing or remand. 

[Martell]. Since Claimant’s counsel did submit medical 

records on Claimant’s behalf [into] the record, Claimant’s 

counsel presumably had the opportunity to present the extent 

of the medical evidence . . . available[,] and in fact did so. 

Thus, if Claimant’s arguments on appeal can be construed as 

Claimant alleging that his counsel failed to present necessary 

evidence during the litigation, it appears that this was just as 

likely a strategic legal decision made by counsel, in which 

we may not interfere.

(Board Op. at 14-15.) We would agree with the Board’s assessment. Where a claimant 

argues that his or her counsel incompetently failed to take a certain legal course of 

action before a WCJ, we have analyzed the argument as one requesting rehearing

pursuant to Section 426 of the Workers’ Compensation Act, 77 P.S. § 871.4 As we 

very recently summarized in Finck v. Union County Commissioners (Workers’ 

Compensation Appeal Board) (Pa. Cmwlth., No. 1029 C.D. 2022, filed December 18, 

2023): 

In summary, [Johnson v. Workers’ Compensation Appeal 

Board, 321 A.2d 728 (Pa. Cmwlth. 1974)], Bickel, and 

Martell teach, first, that allegations of attorney incompetence 

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

requires “cause shown.” 77 P.S. § 871. Our cases further 

reveal that for attorney incompetence to amount to “cause 

shown” in this context, the claimant must satisfy two 

4 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710. Section 426 

was added by Section 6 of the Act of June 26, 1919, P.L. 642.
9

elements: (i) objective incompetence on the part of counsel, 

Johnson, and (ii) manifest injustice to the claimant flowing 

from that objective incompetence, Bickel, Martell. 

Id., slip op. at 13-14. Absent this exacting standard, “piecemeal hearings prompted by 

the wisdom of hindsight would become the rule rather than the exception.” Martell, 

707 A.2d at 244.

Here, there is no evidence in the record that would establish either 

objective incompetence or manifest injustice. First, the record is clear that Claimant’s 

counsel presented a substantial amount of competent medical evidence before the WCJ 

and, in fact, succeeded in both amending the description of Claimant’s injury and 

defeating Employer’s Termination Petition. The record reveals that Claimant’s 

counsel was active and engaged in the proceedings before the WCJ and manifested no 

objective signs of incompetence or indolence. Merely because counsel, with full 

knowledge of Claimant’s alleged PTSD and the medical records and testimony from 

Claimant’s physicians, elected not to seek to add PTSD to the description of Claimant’s 

compensable injury is insufficient in itself to establish that counsel’s decision was born 

of incompetence and not reasonable legal strategy. 

Second, Claimant did not suffer manifest injustice from Counsel’s 

decision, chiefly because the admission of such evidence would not necessarily have 

changed the WCJ’s decision. The WCJ found that Claimant had not fully recovered 

from his work injury but, nevertheless, could return to his pre-injury position. (FOF 

11(f), (g).) Although the WCJ did not consider any medical evidence of PTSD, she 

nevertheless received and acknowledged Claimant’s testimony regarding the reasons 

that he could not return to his pre-injury position, which included his belief that he 

suffered from PTSD. (FOF 3(i).) The WCJ further acknowledged Claimant’s 

testimony that, when he attempted to return to his pre-injury job, he could only work 
10

for approximately one hour and had to leave because of traumatic flashbacks and a 

panic attack. (FOF 3(j).) Thus, the WCJ heard and considered Claimant’s testimony 

and nevertheless concluded that he could return to his pre-injury position with 

Employer. Counsel’s decision to not introduce additional evidence, medical or 

otherwise, of Claimant’s alleged PTSD thus resulted in no manifest injustice, 

particularly given Claimant’s own testimony that his alleged PTSD does not prevent 

him from seeking work. 

In sum, although this issue is waived, we nevertheless would affirm the 

Board if it properly was before us. 

B. Suspension Petition

Section 413(a) of the WC Act authorizes a WCJ to modify a claimant's 

WC benefits if the employer proves that “the disability of an injured employe has 

increased, decreased, recurred, or has temporarily or finally ceased . . ..” 77 P.S. § 772. 

Pursuant to Section 413(a), “when an employer seeks to modify a claimant's benefits 

by a reduction, suspension, or termination of such benefits, the employer must first 

come forward with medical evidence of a change in the claimant’s physical condition 

that correspondingly establishes a change in the claimant’s ‘disability[,]’” which means 

the loss of earning power. Phoenixville Hospital v. Workers’ Compensation Appeal 

Board (Shoap), 81 A.3d 830, 841 (Pa. 2013). An employer seeking to suspend an 

employee’s workers’ compensation benefits based on the employee’s ability to return 

to work must establish with medical evidence that the employee is capable of returning 

to work and that the employer has presented a job offer within the employee’s 

capabilities. Dixon v. Workers’ Compensation Appeal Board (Medrad, Inc.), 134 A.3d 

518, 521-22 (Pa. Cmwlth. 2016) (citations and quotations omitted). Once the employer 

has carried its burden, the burden of proof shifts to the claimant to demonstrate that he 
11

or she responded to the offer in good faith; if good faith is not exercised, benefits may 

be modified. Id. at 522. 

Here, there is no dispute that Employer offered Claimant his pre-injury 

position. The only remaining disputed question is whether the position was within 

Claimant’s medical capabilities. Claimant argues that the WCJ erred in finding that 

Claimant could return to his pre-injury job with Employer because his mental 

conditions, chiefly his PTSD, are preventing him from returning to work. Claimant 

reiterates that he tried to return to work in 2019, but had to leave because he had a panic 

attack caused by flashbacks of his prior work incident and fear that his other eye could 

be injured. (Claimant’s Br. at 2.) Although Claimant at times notes that he has ongoing 

pain and partial blindness in his injured eye, he does not argue in this Court that those 

ongoing symptoms prevent him from returning to work. Thus, because PTSD was not 

added to Claimant’s injury description, it cannot serve as a valid ground to challenge 

the WCJ’s finding that Claimant can return to work. We accordingly find this issue to 

be without merit.5 

5 To the extent that Claimant does or could argue that the ongoing physical limitations in his 

injured eye preclude him from returning to work, the WCJ made extensive findings regarding the 

credibility of both Claimant’s and Employer’s medical experts. Based on those findings, the WCJ 

concluded that the medical evidence indicates that Claimant’s ongoing physical limitations do not 

preclude him from returning to his pre-injury position. (FOF 11(a), (b), (f).) The WCJ’s findings are 

based on substantial evidence, namely, Dr. Schindler’s testimony, which the WCJ found to be 

credible. “[T]he WCJ is the ultimate finder of fact and the exclusive arbiter of credibility and 

evidentiary weight,” Thompson v. Workers’ Compensation Appeal Board (USF&G Co.), 781 A.2d 

1146, 1150 (Pa. 2001), and “[t]he WCJ, therefore, is free to accept or reject, in whole or in part, the 

testimony of any witness, including medical witnesses.” Griffiths v. Workers’ Compensation Appeal 

Board (Red Lobster), 760 A.2d 72, 76 (Pa. Cmwlth. 2000). Here, because the WCJ’s findings 

regarding Dr. Schindler’s testimony are supported by substantial evidence, they will not be disturbed 

on appeal. 
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IV. CONCLUSION

Having concluded that Claimant’s issues on appeal are either waived or 

without merit and that the WCJ did not err or abuse her discretion in issuing her 

Decision and Order, we affirm the Board. 

________________________________

PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Augustine Sesay, :

Petitioner :

: No. 551 C.D. 2022

v. :

:

Southeastern Pennsylvania :

Transportation Authority (Workers’ :

Compensation Appeal Board) :

Respondent :

ORDER

AND NOW, this 31st day of January, 2024, the April 21, 2022 order of 

the Workers’ Compensation Appeal Board hereby is AFFIRMED. 

________________________________

PATRICIA A. McCULLOUGH, Judge