*1
General
v. APPEAL WORKERS’ COMPENSATION (MARLOWE), Appellees BOARD Co., Intervenor. Penn National Insurance Supreme Pennsylvania. Court
Argued 2001. Nov. Dec. 2002. Decided *2 Fleischauer, MD, Valley, Alan Hunt for Lome G. Scott Group, and PMA defendant. Seifert McLemore, Harrisburg, Wintermyer, for Inc. Robert Burke Group, Appellants. and American General Holzman, Harrisburg, Kenger, A. James Amber Marie Me- W.C.A.B., chanicsburg, appellee. for Hanes, Marlowe, Philadelphia, appel- David for Linda Bruce lee.
Mary Uhlig, Philadelphia, Tregea, T. Steven R. State Col- Co., lege, for Penn Nat. Ins. Intervenor. FLAHERTY, C.J., ZAPPALA, CAPPY,
Before CASTILLE, NIGRO, SAYLOR, NEWMAN and JJ.
OPINION SAYLOR, Justice. application, in the administrative appeal
This concerns the setting, law of what has been termed the of appellate review. (“Claimant”) Linda filed a November of Marlowe petition seeking against Wintermyer, claim E. benefits Leon insurer, (“Employer”), Group, and its American Inc. General al- pursuant Compensation to the Workers’ Act.1 Claimant that, leged injury— in March of she sustained (“CTS”) carpal syndrome bilateral tunnel the course and —in scope employment primarily bookkeeper. of her as a On the day, against also a claim previous same Claimant asserted her Seifert, (“Seifert”), employer, alleging G. Inc. that her Lome company injury. clerical duties at that to her contributed Employer joinder petitiоn against filed a Seifert the same and, subsequently, *3 joinder petition, reason filed a second contending any injury that worked occurred while Claimant Block, for H company, preparer.2 another & R as a tax a petitions WCJ treated the on consolidated basis for purposes hearing parties stipulated and decision. The that Employer spanned Claimant’s work with the fall of 1991 mid-1993; through job through her with from 1987 Seifert 1990; and employment her seasonal with H & R Block several (full time), months in 1991 as in through well time). (part that for employ- Claimant testified her duties all motion, periods ers included substantial of repetitive hand particularly typing computer and keyboarding; experi- she tingling enced and in fingers right numbness her and arm in Seifert; employed by December of while she was treated by chiropractor ultimately physi- 1990 and to a referred cian, CTS; who diagnosed working Employer, while for she spent seventy percent of her typing computer time at a 2, 1915, (as amended, 1041.4) (the 1. §§ Act of June P.L. 736 77 P.S. 1— "Act”). joinder petition eventually 2. This second was dismissed because Claim- provide timely pursuant ant failed to H R& Block with notice Act, Section 311 of the P.S. 631. Employer, symptoms full keyboard; working time her increased; Yates, M.D., A. she came under care James 1992; February and it was аt such time that she learned that her was work related. CTS Dr. presented testimony deposition also Yates’ via
Claimant description concerning and transcript. His onset treatment Claimant’s; further, explained the CTS was consistent he surgical procedures that several in 1992 and performed he Yates, symptoms. According 1993 to alleviate the to Dr. injury permanent damage, caused nerve and her Claimant’s employment condition was to her and caused related motion, repetitive including typing, keyboarding, writing. cross-examination, Dr. opinion On Yates indicated his predicated concerning work-relatedness was the work Claimant, history provided by and medical and that such Dr. history generalized was nature.3 Yates also identified a CTS, although emphasized causes for he series other repetitive motion activities were the most common source.
Employer presented testimony from its of human director Claimant, accounting employee replaced services and the who substantially both of whom contradicted Claimant’s assertions concerning spent performing the amount time that she data entry daily supervisor on a basis. The testified majority working of Claimant’s work involved with invoices documents, spend great and thаt she did not other deal computer of time at a terminal. The clerical worker stated that, duties, than performing spent Claimant’s she no more day entry; on data per two hours the remainder of the tasks; workday non-repetitive many days involved she did *4 example, following interchange 3. For occurred: Doctor, Specifically, you any specific Q. ... do have clear-cut and occupational history any given as to what did for [Claimant] point employer any particular in time? was, Only job description A. what she has told me and what her bookkeeping, et cetera. Q. day spent doing ... know how much [Y]ou don’t of she X activity activity, anything Y versus whether there were breaks or that nature? No, A. I not. do present did not any keyboard. Employer at a spend not time witness, present nor did evidence. expert an medical Seifert inconsistencies, emphasized con- findings, the WCJ her flicts, example, in For she vagaries and Claimant’s evidence. evidence to the effect that Claimant’s contrasted the extensive in longstanding clearly and evident difficulties with CTS were to Em- disability claim form submitted June of indicating appeared that first in ployer by Claimant her CTS 1992; wit- August testimony Employer’s credited the concerning repetitive the extent of nesses over Claimant’s and that Dr. activity performed; emphasized motion she Yates to or specify any particular leading was unable to event time injury. aggravation of an onset or of Claimant’s The WCJ specifically testimony stated that of Claimant Dr. Therefore, that Yates was not credible. the WCJ concluded proving to sustain Claimant failed her burden her injury dismissing work was related entered order Seifert, petitions against claim as well as Em- Employer joinder ployer’s petition. (“WCAB”), Compensation Appeal
The Workers’ Board how- ever, Preliminarily, acknowledged reversed. it that its review appellate capacity, was in an and it was not its therefore conflicts, weigh function to the evidence and resolve but rather, Further, assigned such role was to the WCJ. it accept WCAB noted that was within the WCJ’s discretion to reject, witness, in part, testimony any whole or Nevertheless, including that, an expert. the WCAB indicated party bearing instances which the burden of denied, proof presents evidence and relief is it is for an tribunal to adjudica- review an administrative tion to any capricious disregard ensure that is free from competent Although acknowledging Employer evidence. presented fact testimony, witnesses rebuttal to Claimant’s emphasized Employer the WCAB presented had not expert challenge Dr. testimony. Yates’ The WCAB invoked traditional definition of willful, apparently as “a of an trustworthy deliberate disbelief witness, testimony challenge.” whose has no basis to one *5 extensively testimony from Dr. Yates’ quoted
WCAB then injury and his conclusion as to its work concerning Claimant’s relatedness; testimony unequivocal; such characterized it, rejecting that the erred in at least to concluded WCJ supported aggravation pre-existing that it of a the extent repetitive injury. condition a trauma The WCAB and/or WCJ, a requiring remanded the matter to the therefore injury of the date of and identification of determination the remand, employer. granted liable On the WCJ the claim 21, 1993, petition period through work from the June June 1, 1994, Employer party. and identified as the liable subsequently period by WCAB months. extended fifteen Court, a panel Employer Before the Commonwealth alia, in initial argued, opinion, inter that the WCAB improperly applied capricious disregard appel- standard of review, thereby usurping late WCJ’s determinations WCAB, credibility evidentiary weight. Like the majority emphasized Employer Commonwealth Court and, accordingly, had not presented medical evidence also a capriсious disregard invoked what termed standard of basis, rejected such review. On the Commonwealth Court Employer’s argument, reasoning: [concerning capricious order to make such determination
disregard],
testimony
[WCAB] reviewed
medical
if it
equivocal
unequivo-
record
order
determine
was
required
cal.
a review
Such
the Board’s assessment
evidence,
Thus,
not its
Em-
competency
credibility.
ployer
in its
is mistaken
assertion
assess-
[WCAB’s]
competency
ment of
the medical evidence
record
credibility
evidentiary weight,
was an
of its
evaluation
(emphasis
original).
questions
resolving
After
additional
by Employer,
raised
the Commonwealth Court affirmed the
opinion,
in a
remanding
WCAB’s order
memorandum
present appeal.
matter for reasons unrelated to the
Judge
separate-
but
Friedman concurred
the result
wrote
ly
express
her belief that
should not have
WCAB
standard,
rather,
applied
but
should
employed
have
substantial evidence test. She rea-
precedent clearly
soned that the court’s
established
re
circum
applied
view for
the limited
party
prevail
stance in which the burdened
does not
and was
presenter
Judge
the sole
of evidence.
Friedman noted a
*6
authority concerning
applicatiоn
conflict in
of the review
only
party presents
standard in
in which
cases
the burdened
parties present
lay testimony
medical evidence but both
or
Compare
other non-medical evidence.
Iacono v. WCAB
(Chester
Auth.),
234,
Housing
155
The effect of the
is that
standard of
review must
separately
be decided
for each issue raised
single
within a
Judge Craig point-
cаse. Former President
ed out the burdensome
in
approach
nature
Herbert v.
(Pa.
[UCBR],
601,
ent whether one more parties case, on a produced specific issue within complications unworkable would result.... Because testi- can, does, mony on impact one issue often some issue, case, issues, on a extent different the same parties up battling pieces could end over of evidence and require their to individual issues. This could us relevance perform analysis extensive the evidence question decide several single in a times case before we could address the issues no raised the-case. There is need for this court to invite difficulties, such I hope and would that we could avoid such inquiries the future.
Finally, Judge Friedman referenced the reasoned decision 422(a) Act, 834,5 requirement Section P.S. which, view, аpplication of her would eliminate the need *7 separate inquiry concerning capricious disregard. a granted
This of aspects Court limited review to revisit standard governing appellate agency review of administrative in adjudications light continuing among jurists of differences concerning its appropriate composition. 422(a)
5. Section states: any any compen- Neither the board nor of its members nor workers’ judge by statutory sation shall be bound the common law or of rules conducting any hearing investigation, evidence in or but all upon competent justify of fact shall be based sufficient evidence to adjudicatory parties proceeding same. All to an are entitled to a containing findings reasoned of decision fact and conclusions of law upon clearly concisely based the evidence as a whole which and explains for states rationale the decisions so that all can why particular determine and how a result was reached. The work- compensation judge specify ers' shall the evidence which [he] accepting conformity relies and state the reasons for it in with this evidence, conflicting compen- section. When faced with the workers’ judge adеquately explain rejecting sation must the reasons for discrediting competent may evidence. Uncontroverted evidence not reason; rejected be for no reason or for an irrational the workers’ compensation judge identify explain must that evidence and ade- quately rejection. provide the reasons for its shall meaningful appellate for basis review. 77 P.S. 834. Preliminarily, rigidly employ we note that courts do not review, precise verbiage applying governing in standards of rather, terms, frequently differing but since the use effort is capture conceptual generally Jeffrey manner of review. See Bauman, Scopes P. Standards Review and Review in of of Duq. L. Pennsylvania Proposal, Primer Rev. —A 2001). Nevertheless, (Spring in the area of administrative review, judges have sometimes described fundamental- ly concepts, as illustrated different irreconcilable panel present division of the Commonwealth in the Court case. Indeed, arena, unfortunately, in a form few instances this substance, causing emphasize, has overcome confusion. We outset, that the courts cannot intermediate be greatly regard, faulted of this Court’s own since several decisions reflect such fundamental inconsistenciеs. re- While Newman, cently, writing Madame Justice for a unanimous Court, concepts, see articulated essential Fraternal Order PLRB, 593-94, 96, Police v. A.2d Pa. 99-100 of (1999), apparent vestiges prior it is of difficulties remain. A critical development Pennsylvania review the historical capricious disregard what is now termed the standard of difficulty, review serves illustrate the but more affirmative- ly, conjunction Police, provide with Fraternal Order alignment. framework for many years, general
For governing appellate standards review in the setting component administrative included a evidence,6 review for in addition to the equally well established of law and errors manifest Gaudenzia, abuse of discretion. Inc. v. Zoning See Bd. of Phila., 355, 363-64, Adjustment 287 A.2d Pa.Cmwlth. *8 See, e.g., Cairgle Sanitary Corp., 6. v. American & Standard Radiator 366 249, 252, 439, (1951) 77 (explaining Pa. A.2d 440 that "unless there is a relevant, capricious testimony, findings of the credible of fact referee, Board, by adopted by upon the or affirmed the if based evidence, (cita- adequate competent appeal” and will be on sustained omitted)); 153, 157-58, Greap Oberdorff, Pa.Super. tions v. 178 113 339, (1955) (“The credibility weight A.2d 341 of and the be witnesses to testimony compensation attached to their is for the authorities and not court[;] may capricious disregard for [o]f course there not be a of evidence.”). competent
198 (1972) v. (citing Pittsburgh Housing 702-03 Blumemchein 331, (1954)). Auth., 566, 572-73, 379 Pa. 109 A.2d 334 Review in in disregard clearly applied cases which for by respective parties to both presented evidence was defenses, see, 157-58, Pa.Super. 178 e.g., Greap, a claim and 341, circumstances, in although A.2d at such relief would 113 warranted, accord- since the was to be infrequently be in of conflicts in great terms of its resolution ed deference regards credibility determinations.7 As deci- party, to sions unfavorable the burdened role, since, matters, in such disregard assumed a more visible necessarily not rest affirmative need rather, findings, predicated upon could also be factual but (i.e., negative agency’s disbelief of the claimant’s evidence conclusion).8 instances, Pennsylvania ap- In finding or such Court has observed: 7. As the Commonwealth role; finding critical fact he alone hears the referee has a [T]he proceedings testimony and the witnesses firsthand. In observes benefits, therefore, pertaining referee to determine the to is for the weight exercising credibility discretion, In that broad evidence. may accept reject testimony any he of witness testimony expert part. This includes the medical whole or witnesses. WCAB, 367, 372, Corp. America v. 59 Pa.Cmwlth. 429 A.2d Container 1264, Steel), (1981); (Century Phillips also v. WCAB 1265 see 1091, finder, 504, 507, (1999) (as 721 A.2d 1092 fact the WCJ is free to witness, witness, testimony any including reject a medical uncontradicted). testimony part, where whole or in even remains UCBR, 18, 21, Tyrone generally Borough Pa.Cmwlth. 415 See v. 52 146, (1980) greater credibility (explaining that accord "[t]o A.2d 148 simply testimony presented others is one witness’ than fact-finding the Board's role and does not constitute a manifestation of evidence”); WCAB, v. Aluminum Co. America 33, 38, 941, (1977). 33 Pa.Cmwlth. 380 A.2d 943 regard, party obligation 8. we note that the unburdened has no this evidence, any proof, may prevail party's if present the burdened credible, (Reedy), Inglis House v. WCAB while is insufficient. See 141, 592, 135, (1993). generally Barrett v. Otis Pa. 634 A.2d See 450, 668, Co., (1968); Pa. 246 A.2d 670-71 Walsh v. Elevator Co., 328, 333, Mining Pa.Super. A.2d Penn Anthracite “[wjhere (1942) against (stating of the board is decision case, bearing party having proof the burden of claimant — —in accept required fact is not even uncontradicted mind that a trier of true, testimony question whether the board's before the court is with each other and with its conclusions of fact are consistent
199 pellate emphasized courts often their task was not to determine whether competent there was evidence that would (since denied), requested rather, relief it was but See, if there was in e.g., the refusal. Fund, 182, v. Pa.Super. State Workmen’s Ins. 174 Yanofchick 187,100 (1953). 387, A.2d 389 promulgation
With the Agency the Administrative Law in 1978,9 Assembly the General express identified criteria for generally govern review which directed would appeals from agency adjudications. 701, §§ See 704. Pa.C.S. Section 704 Law, Agency the Administrative governing disposition alia, appeals, provides, inter as follows: hearing,
After court shall adjudication affirm the unless it shall find that adjudication is in violation of the rights constitutional appellant, of the or is not in accordance law, provisions or that of Subchapter Chapter A of 5 (relating practice and procedure of Commonwealth agencies) have been proceedings violated before the agency, any finding or that agency of fact made necessary to support is not supported by substantial evidence.
2 Pa.C.S. 704. Subsequently, in light statutory formulation, of such Court criticized the Commonwealth Court’s to a adherence traditional appellate statement of the standard of review an included, administrative context that as a component, review for capricious disregard. See McGovern’s Estate v. State Bd., Employees’ 377, 381-82, 523, Retirement 517 A.2d (1986). Further, terms, fairly cryptic McGovern direct- ed that it was longer no ever courts аpply capricious a disregard component review.10 order,
of law and its and can be sustained without a (citation omitted)). competent evidence” 28, 1978, 202, (as April 9. Act of P.L. §§ No. 53 amended 2 Pa.C.S. 501- 508, 701-704). McGovern, 10. appeal the Court framed the issue on as follows: Board, holding Commonwealth Court reversed the capricious- that it ly disregarded granted .... We allocatur to examine Nevertheless, year, again this Court described within dis- subsuming examination for of review unfa- agency adjudications applicable to review regard UCBR, Pa. v. party. Odgers See vorable to the burdened (1987) (“The 359, standard of review A.2d *10 with party the the apply court must where any appellate the [agency], the whether proof lost before burden disregarded or capriciously a matter of law [agency] erred as evidence.”). competent America), 121 Pa. (Volkswagen
In Russell v. WCAB
(1988),
436,
Court
If no evidence “sub- apply which to is no there party, i.e., test; to find substan- impossible it is stantial evidence” was position for which no evidence tial evidence therefore, cases, appropriate scope such introduced. review, Odgers, forth in ... is whether as set compe- capriciously disregarded a matter of law erred as evidence. tent 438-39, 1365. The
Russell,
that it essential *11 cases, has and the formulation category of gard in at least one difficulty ap- with the regularly. See id. The applied been however, from agencies are not foreclosed is that proach, against in matters decided factual making affirmative many agencies in which are instances the claimant. There (for party that a failed example, predicate negative conclusions facts adduced proof) upon of affirmative to meet his burden evidence, cross- testimony and to include claimant’s from the cases, substantial In 704 review for such Section examination. necessary findings that are to all affirmative applies (“the court 2 704 adjudication. See Pa.C.S. support to ... any find that unless shall affirm the shall necessary agency finding by of fact made evidence”). supported by substantial adjudication is not its suggest that the General Assem- Conversely, troubling it is in an simply unavailable judicial for review be bly intended supported agency’s in which substantial evidence instance beyond doubt that its it was clear findings, factual but where disregard of other upon capricious were based conclusions occur, example, if would for a situation evidence. Such 202
agency expressly refused to resolve conflicts the evidence credibility make essential Additionally, determinations.11 given inadequate foundation which exception allowing crafted, for review was frac- opinions tured developed have concerning manner of application, again illustrated this case. noted,
As Fraternal Order Police appellate clarified the of applicable of review in the administrative agency setting. Police, 593, See Fraternal Order Pa. A.2d at 99-100. Although its focus was directed to the compоnent of requiring agency Section conclu- law,” sions must “in be accordance with Justice Newman’s core explanation highly relevant:
While [the
standard has
in-accordance-with-law]
been de-
in a
ways,
scribed
number of
import
its essential
is to
establish limited
review of
conclusions to
they
adequately
ensure
are
supported by competent
findings,
factual
are
from,
arbitrary
free
and,
making,
relevant,
decision
represent
the extent
proper
agency’s
exercise
discretion.
Commonwealth,
Id. at
735 A.2d at
(citing
v.
Slawek
Licensure,
316, 322,
State Bd. Med. Educ. and
(1991)).
A.2d
emphasizing
further
the deferential
process,
character of the
explained
the Court
that appellate
courts are not free to
a generalized conception
invoke
reasonableness in order to
judgment
substitute their
for that
agency.
Nevertheless,
id.
recognition
See
was also
given
discretion,
to the
boundaries
such
as the Court
explained that
it remains within
purview
of reviewing
courts to
consider whether
reasonable mind might make the
same decision on
agency.
the evidence
before
See id. at
*12
593,
(citing
Commonwealth,
Since review for was an function of the in Commonwealth Court the WCAB the case, present remains consider whether those tribu- nals in were correct their conclusion that had WCJ decision-making authority. exceeded the boundaries her testimony, After extensive recitation of Dr. Yates’ that, summarily testimony WCAB concluded because such unequivocal, was capriciously disregarded the WCJ must have decision, it in denying reaching benefits. this the WCAB to acknowledge failed that the WCJ based disbelief her countervailing presented by Employer pertaining evidence degree to the nature of Claimant’s work and which she engaged repetitive in motion on daily activities basis. Dr. acknowledged Yates that his assessment work relatedness dependent upon intensity was the character and of Claimant’s work, Therefore, him by activities as related to Claimant. Employer present the fact that did not in testimony medical Moreover, necessarily dispositive. rebuttal is not while the majority concluding Commonwealth Court was correct in competency credibility, the WCAB addressed and not it erred treating this controlling. distinction as To determination of the circumstance of a negative finding, the Commonwealth Court should con have impact Employer’s sidered the non-medical evidence. that, acknowledge do vagaries proofs, We due to this case, uncontradicted, is a competent close since was injury offered to establish the fact of as well as Claimant’s performance potentially aggravating during activities her Employer. Nevertheless, tenure with the conflicts in the reasonably evidence were substantial and could have been conclusions, it should remain a rare instance in which an upon capricious disregard. court would disturb an based WCJ, explanation, consistent with her as detri- viewed credibility. significant overall It is most mental Claimant’s case, then, injury of times of the sole evidence aggravation derived from Claimant’s accounts and onset testimony, credibility and that was therefore an Claimant’s linchpin question essential to the central work relatedness. *14 of capricious disregard Since a determination was unwar- case, ranted this the orders of the and Common- WCAB reversed, wealth Court are and the matter remanded for initial reinstatement the order the WCJ.
Former FLAHERTY not participate Chief Justice did of this the decision case. ZAPPALA,
Chief Justice and MADAME Justice concurring opinions. NEWMAN file concurring opinion Justice CAPPY files a in which Justice joins. NIGRO
ZAPPALA, Justice, concurring. Chief I concur in majority. Simply put, the result reached the (WCJ) Compensation the Workers’ Judge credited the testi- mony by Employer regarding offered the nature Claimant’s duties and found testimony of Claimant and her medical expert Having Employer’s incredible. found that predicate rebutted the factual upon which Claimant’s medical expert his opinion, based that WCJ concluded Claimant to failed sustain her of proving carpal burden that she suffered syndrome tunnel during the course and her scope employ- Thus, ment. the Workers’ Compensation Appeal Board and awarding Commonwealth Court compen- еrred workers’ sation ground benefits based on the capriciously the WCJ disregarded Claimant’s medical fact evidence. The that Em- ployer presented opposed factual evidence as to medical evi- analysis. dence does not alter application
As to capricious disregard of the standard in case, I holding would adhere to the case law that such applies only party where the evidence, present yet to does proof party is the sole
burden
fact finder.
Russel v. Workmen’s
prevail
not
before the
See
Board,
550 A.2d
Appeal
Pa.Cmwlth.
Compensation
(1988)
(holding
presented
if no evidence was
upon which
party, there is no evidence
support
prevailing
test and therefore the
apply
the “substantial evidence”
applies).
majority finds
disregard” standard
“capricious
troubling
that “it is
difficulty
approach
with this
states
judicial
Assembly
intended for
re-
suggest
the General
in an
in which substan-
simply
to be
unavailable
instance
view
agency’s
findings,
factual
but
supported
tial evidence
beyond
doubt that
its conclusions were
where was clear
Majority
of other evidence.”
based
if
13. I do not share this concern because
substan-
opinion at
WCJ,
the factual
tial evidence exists
not
аppellate tribunal should
delve into whether the WCJ
disregarded “other evidence.”
capriciously
decision in Fraternal Order
I also do not view
Court’s
PLRB,
(1999),
*15
altering
Police v.
I write for two the first, clarify my understanding proper place to reasons: in disregard overarching the statu- capricious for the tory governs appellate agency’s review of an framework disregard majority specifically 1. The holds that "review for material, component appel- competent evidence is an of of every question properly late consideration in case in which such is brought Majority opinion I before the court.” at 15. believe that such party questions “properly before the court” when the with the are evidence, yet proof party present thе loses before burden of is sole the fact finder. second, narrow circum- adjudication, emphasize and the in of stances which review for a the of an agency’s evidence will lead to the reversal decision. my understanding forth of review for a To set where spectrum within capricious disregard of the evidence fits the review, statutory appellate of a brief discussion of the frame- appellate agency adjudication of an is governing work review required. legislature sphere has narrowed the appellate agency’s court’s of an to four distinct decision separate and for reversal: bases affirm hearing, adjudication
After court shall unless adjudication shall find that is violation of the constitutional rights appellant, or is not accordance law, A provisions Subchapter Chapter that the [relating practice procedure of Commonwealth agencies] proceedings have been violated before the agency, any finding by agency or that of fact made necessary by supported is not substantial evidence. Thus, statute, (explanation § 704 supplied). Pa.C.S. setting overarching
viewed as forth an in which to framework review, conduct appellate agеn- limits review of an (1) (2) cy’s determinations; adjudication to: constitutional (3) conclusions; (4) legal procedural regularity; of fact.1 appeal there neither an assertion that the rights Appellant
violated the constitutional nor a claim Therefore, irregular procedure agency proceedings. only two of four these areas of review have been raised. regarding legal Assertions have been raised conclusions compensation judge reached the workers’ and it has been *16 suggested regarding findings implicated issues of fact are as well. Davis, generally,
1. See Martha S. Standards Review: Judicial Review of Discretionary Decisionmaking, App. 2 J. Prac. & Process 47-49 of facts, (2000)(dividing appellate parts: review into three review of re- law, discretion, varying view of and review of each with level of review). deference to the action or decision under conclusions, appellate that an legal As to section states may agency court decision to determine whether review Recently, is “in with law.” our adjudication accordance court has clarified the contours of an “in accordance with law” PLRB, Fraternal Order Police v. review. (1999). import
A.2d 96 “essential is to establish limited thеy appellate agency review of conclusions ensure that are by competent findings, factual are adequately supported free arbitrary making, from decision relevant, proper agency’s represent extent exercise (emphasis supplied). at 99 discretion.” Id.
Thus, an conclusions agency’s legal review for whether are “in with law” consists of at three distinct accordance least way, inquiries FOP sets forth facets. Stated another certain (1) situation: applied appropriate to be whether the supported by findings; factual legal competent conclusions are (2) arbitrary in an legal whether the conclusions were made (3) fashion; legal whether the conclu- and/or an sions were abuse of discretion. fact, findings
As to section 704 offers that an agency’s adjudication, appel- affirm court must unless the “any findings by court made late determines of fact necessary sup- is not (emphasis ported substantial evidence.” Pa.C.S. added). provides itself the standard of The statute review findings regarding of fact: an inquiry for findings they sup- factual agency’s affirmative whether are ported by substantial evidence. clarify my I background, understanding
With this write to placement capricious disregard of review of the I within this framework because believe there to be disagreement statutory confusion or into which area a some falls. I capricious disregard persuaded review am while a component review has as a consideration hearing, inquiry at a it is not an the evidence offered Rather, regarding agency’s fact. affirmative agency’s legal is a conclusions to determine conclusions, legal agency capri- in making whether those *17 clearly that would have disregarded evidence of record ciously Being a different result. beyond doubt commanded and conclusions, of a tribunal consideration whether legal of review component of in disregarded is a capriciously evidence with accordance law review. with, by, our supported and
This conclusion is consistent FOP, appellate court will As stated decision FOP. alia, are, inter agency’s if the conclusions review determine FOP, making. arbitrary from and decision free majority appeal explains, in this A.2d at 99. As the being arbitrary free from concept legal of conclusions making, concept of the capricious decision the related reasonable, and, indeed, being “overlaps conclusions with legal desсription ‘capricious traditional of the disre- subsumes the Majority (emphasis sup- gard’ Op. facet of review.” disregard sub-component of in plied); (capricious id. n. 13 law). stated, Simply agency capriciously if an accordance with conclusions, disregards reaching legal adju- its thus, law. It capricious, dication is not accordance with cannot affirmed. 2 Pa.C.S. 704.2 therefore be sum, my understanding it is for a review evidence, core, disregard of at its not does entail consider- facts, agency’s finding ation of the affirmative of but instead goes agency’s legal to a of conclusions.3 It “is not review the agree It for this that I New- is reason cannot Madame Justice 2. man’s contention that review for a of evidence is review, legal application of but a I not the standard conclusion. conceptualized Specifically, believe that it can be as both. while not all (see legal standards of review describe a standard and a conclusion law), applicable pure questions de novo standard of review other meaning. The of review standards do have a dual described sharpens point. appellate may an “abuse of discretion’’ An court if the trial review a trial court’s admission of evidеnce to determine court committed an abuse of discretion. The standard review is the appellate If the court determines the "abuse discretion” standard. erred, legal court conclusion is that the trial court "abused its trial discretion.” agency’s concept 3. The review for whether an conclusions part appel- supported are “substantial evidence” has become of the Hospital, Area School District v. late court lexicon. See Wilson Easton (2000) (decision supported by A.2d substan- Police, evidence); Liquor tial Mallios v. Pa. State Bureau Control and, only legal pursuant but structural to legislative design and long-standing principles, requires Majority correction.” at Op. 487.
Second,
agency’s
while I believe that
whether the
legal
by a capricious disregard
conclusions were made
function, I,
appropriate appellate
evidence is an
like the
*18
majority, recognize
potential
that such review has the
for
Thus,
emphasize
I
an
by
appellate
abuse.
reversal
court
agency’s
by
of an
application
capricious
determination
disregard
exceptional
will
by
be the
case. As stated
majority,
“where there is substantial
to support
evidence
704],
an agеncy’s
findings
factual
accord with section
and
[in
findings
[legal]
those
in turn
conclusions [in
FOP], it
accord with
should remain a rare instance in which an
upon
court would disturb an
based
(comments
capricious disregard.” Majority Op. at
n. 14
added).
precisely,
on
type
More
reversal based
this
only
beyond
should occur
where
is “clear
doubt” that an
agency’s legal
upon capricious
conclusions were based
disre
Id. gard
very high
bar.
suggested
evidence—a
486. As
by
majority,
might
agency expressly
occur if “the
refused to resolve conflicts in the
evidence
make essential
Id. It
credibility
might
determinations.”
also be the case
agency completely ignores
overwhelming
where
evidence
(1993)(whether
Enforcement,
Pa.
633 A.2d
order of
evidence).
supported by
Board is
substantial
Use of the "substantial
verbiage
agency’s
evidence”
to describe both review of an
affirmative
findings
legal
agency’s
of fact and review of an
conclusions unnecessar-
ily
keep
I
inquiry
confuses matters.
believe it far more desirable to
regarding findings
inquiry regarding
of fact distinct from the
conclu-
respect
sions of law and to use distinct
terms with
to each area. To
lexicon,
keep
inquiries separate,
and to create a common
I would
suggest using
terminolоgy
respect
"substantial evidence”
agency’s findings
position
to the deferential review of an
of fact. This
course,
(whether
grounded
in section 704. 2 Pa.C.S.
evidence).
by
supported
of fact are
substantial
For review of an
conclusions,
i.e.,
agency's legal
whether the
conclusions are
accor-
law,
dance with
I would advocate
use
terms articulated
FOP.
review,
appropriate,
agency’s legal
That is
where
to determine if the
adequately supported by competent
findings,
conclusions are
factual
FOP,
arbitrary
capricious,
are
an
constitute
abuse of discretion.
Finally, I envision for an additional reason. exception evidence to be 422(a) of the of fact is bound section agency’s finder (the “Act”). § 1 seq. et Act P.S. Compensation Workers’ alia, con- inter decision requires, reasoned provision This upon law based of fact and conclusions of taining findings Specifically: as a whole. adjudicatory proceeding are entitled to parties to an All containing findings of fact and decision a reasoned upon as a whole bаsed the evidence conclusions of law the rationale concisely explains states and clearly which why and how a so that all can determine for the decisions compensation workers’ particular result was reached. The relies and specify the evidence which he judge shall conformity it in with this accepting state the reasons conflicting evidence, the work- faced with section. When *19 adequately explain compensation judge must ers’ discrediting competent rejecting or evidence. reasons for rejected may for no not be Uncontroverted compen- reason; an irrational the workers’ reason or for explain judge identify must that evidence sation adequately rejection. the reasons for its Thus, if a workers’ com- (emphasis supplied). § P.S. by all offered pensation judge considers the evidence determinations, making forth reasons for factual parties, sets rejection rational for the of uncontroverted including reasons for evidence, likely grounds it is there will be no an then position Zappala's I this reason that believe that Chief Jusüce 4. It is for I, appellate majority, unnecessarily review. like the circumscribes disregards overwhelming evi a situation in whiсh a tribunal envision which, considered, com without comment if would dence of record review for a mand a different result. Without the tool of evidence, appellate to a an court would be limited of the by judge of fact made ihe review of whether the affirmative by supported the substantial evidence. Consideration were facts, contra-evidence, by agency overwhelming not found would precluded. be appellate legal court to overturn his or her conclusions on the of a capricious disregard basis of the evidence. sum, a place there is review of whether
agency capriciously disregarded reaching the evidence in legal part conclusions and this review is of the “in accordance sphere Furthermore, with law” of review. I believe agency’s adjudication reversal of an on this basis must be the so, exception, part, rare will be because of the dictates 422(a) of section Act. joins concurring opinion.
Justice NIGRO
this
MADAME,
Newman, concurring.
Justice
agree
I
Majority
While
that a determination of
case,
capricious disregard was
I
unwarranted
this
write
separately to further make it clear that I believe there is no
agency
review of
decisions.
appeals
standard of review in
from
decisions,
Court,
which
previously
by
has been
articulated
Law,
is set forth in
5 of
Agency
Section
the Administrative
See,
§ 704.
e.g.,
Pa.C.S.
Fraternal Order
Police v. Penn-
Board,
sylvania
Labor Relations
557 Pa.
The court shall hear jury without a on the record certified agency. hearing, the Commonwealth After court adjudication shall affirm the unless shall find that is in violation of rights the constitutional appellant, law, or is not in accordance with or that the *20 provisions Subchapter Chapter A of (relating prac- 5 to procedure tice and agencies) Commonwealth have been , any proceedings agency, violated that before the or finding by agency necessary of fact made and support adjudication supported by is not substantial affirmed, If may evidence. is not the court
213 any by (relating § enter order authorized Pa.C.S. disposition appeals). added). FOP, 704 (emphasis expressed Pa.C.S. As import essential
“[The] [of is to establish limited standard] appellate review of they conclusions ensure that arе adequately supported by competent findings, are free factual and, from arbitrary making, or decision to the relevant, represent extent a proper agency’s exercise of the FOP, added). discretion.” 735 A.2d (emphasis at 99 As recognized by majority, inherent as an element process, review is an produced examination of the evidence findings relative to the toWCJ see whether the WCJ capriciously disregarded competent It only evidence. performing a analysis substantial evidence court, alia, inter looks to adequately see conclusions are supported, rights protected, constitutional legal precepts were properly applied, were invoked and findings factual are arbitrary free from making. decision But FOP. any agency the touchstone of adjudication remains that sub- findings stantial evidence must made WCJ. developed Commonwealth Court has line cases that,
holding
party
where the
burdened
is the
one to
produce
WCJ,
evidence
loses before the
the substantial
evidence standard of
is inapplicable
because
is no
there
substantial evidence on which to
base the
of the lower
See,
tribunal.
e.g., Cerasaro v. Workers’ Compensation Ap-
(Pocono
Medical,
peal
Ltd.),
Board
Mountain
[W]here is the prevail evidence does not agency, before the the “sub- stantial evidence” test If presented falters. no evidence was to support prevailing party, there is no *21 test; i.e., it is evidence” apply the “substantial
which position to find substantial evidence impossible cases, was introduced. such no evidence for which ... therefore, of review appropriate [standard] capriciously of law or erred as a matter whether competent evidence. disregarded (Volks- Board Appeal Compensation v. Russell Workmen’s 436, 1364, America), 550 A.2d 121 Pa.Cmwlth. wagen of (1988). disregard standard Court’s
The Commonwealth Court departure previous from Commonwealth represented Estate the decision of Court applied cases Board, Pa. Retirement Employees’ v. State McGovern (1986). Compen- Unemployment In Kirkwood v. A.2d 523 Review, 525 A.2d 106 Pa.Cmwlth. sation Board of (1987), examined the standard Court the Commonwealth McGovern, within the context of whether articulated in evidence, and reasoned: parties presented one or both bur- present themselves when the possible scenarios Two (a) evidence of the prevail: fails to where the party dened believed, substantially support- if party, even burdened sufficient, as a asserted, is not nonetheless ing the facts (b) burden, and, law, where imposed meet the matter and sufficient party present does substantial burdened law, but factfinder nonetheless as a matter of evidence prevail, the burdened against party.... [T]o finds (i.e., production burden of must meet both party [her] evidence) persuasion burden of and [her] sufficient present evidence).... the burdened (i.e., present [W]here credible agency, we must assess prevail not before the party did (1) legal is due to: prevail failure to below whether [her] (2) or, credibility the lack of insufficiency of the evidence the evidence.... (footnotes omitted).
Kirkwood,
When, however, party present burdened did sufficient evidence as a yet below, matter law and prevаil failed to we then must determine whether the reason for the adverse determination stems from the factfinder’s opinion that the presented credible, or, was not whether instead the *22 factfinder committed an error of law in applying proper the principle of law to presented.... the facts specific If credi- bility appear determinations the result of the adjudication, then may we affirm the decision on below the basis that party the burdened failed [her] burden to persuade the factfinder. omitted.) (Emphasis
Id.
appears
This
a
articulate
clear
understanding of
appropriate
review,
the
standard of
regard-
less of
party
whether one
or
parties
both
produce evidence.
Thus,
a party,
where
with the
of proof,
burden
party to present evidence and does not prevail, that party has
either failed to meet
production
her burden of
or her burden
persuasion.
Because a defendant has no
produc-
burden of
tion
persuasion,
or
at
plaintiff
least until the
sufficiently
has
burdens,
met both of her
persuasion
the burden of
may not
shift to the defendant to produce sufficient credible evidence
lose,
or
plaintiff
before
has satisfied both those burdens.
majority
cites to Odgers v. Unemployment Compensa
Review,
tion Board
378,
(1987),
514 Pa.
must
a
application of under-
appreciation and correct
demonstrate an
Id.
law to that
lying principles of substantive
evidence.”
later,
Court, in
v.
years
Pieper
Barely
584-85.
three
Div.,
A
of a
review of the
believe,
on
context and manner
light,
sheds
I
1800s,
published
as
In the late
at least
far
application.
reveal,
submit-
opinions
improperly
cases
were
that era
jury
judgment
a
in which
rendered a
jury
ted to
(JNOV),
non obstante veredicto
were
judgment
resulted
finding
jury capriciously
that the
disre-
often reversed
or lack of evidence
their determina-
garded the evidence
adage
orphans
This
that widows and
gave
tions.
rise
See, i.e.,
Beale,
v.
Pennsylvania
bad law.
Railroad Co.
make
*23
(1873) (reversing
jury
Pa. 504
award
favor of widow and
73
disregarded
jury capriciously
children of
where
the
deceased
stop immediately
failure to
before cross-
fact
decedent’s
se);
negligence per
Pennsylvania
a
track was
ing
railroad
(1889) (revers-
244,
126 Pa.
17 A.
Mooney,
Railroad Co. v.
590
$8,000 for
widow of a man struck and
ing judgment
a
of
the
granted
by a
where the lower court should have
a
killed
train
Co.,
JNOV);
184,
Pa.
18 A.
Pittsburgh
McNeal v.
& W.R.
131
(1890)
jury
damages
of
for widow and
(reversing
award
accident).
In
railway crossing
of
cases
children man killed
these,
repeatedly
that:
this Court
said
such
testimony
of an
is a
action
mere
[W]here
overwhelming
that no real
opposed
scintilla and that
so
raised,
jury
not find for
controversy is
where the
could
disregard
plаintiff
capricious
apparently
a
of
without
testimony, probable
truthful
in itself and not
variance
facts,
any
proved
may
or
a verdict
be directed
admitted
defendant.
Co.,
429,
overlooked a desired outcome. achieve that, [Lonzer], has also said rule stated “[t]he
This Court a conclusion may be where different verdict directed without a disre- jury not be could reached apply ... not where there is a conflict of gard of does [facts] ” Co., testimony .... Heh v. Consolidated Gas (1902) added). matter, In the instant (emphasis A. testimony that the of Claimant was less the WCJ determined Wintermyer in went to work for than credible. Claimant fact, had she informed after she was aware that she CTS. was Wintеrmyer that she had CTS when she hired. The deny benefits was a direct result determination the WCJ testimony Employer’s repetitive as to the witnesses requirements job directly task and went to the Claimant’s injury. is not bound to work-relatedness The WCJ every story willingly believe witness witnesses to, simply no other witness contradicts it. swears because Having testimony concerning cau- discredited Claimant’s underlying relationship sation of her CTS and its direct to her job, important aspects testimony, as well as of her other testimony of Dr. Yates because Dr. WCJ discredited *24 opinion injury that CTS was a work-related Yates’ Claimant’s testimony entirely upon was based the discredited of Claim- testimony of Dr. ant. The WCJ did not discredit the Yates credibility, it was The sole issue here was equivocal. because unequivocality not rejected “capri-
I would that this has the reiterate Court disregard” applied by cious standard as the Commonwealth beginning continuing pres- with to Court McGovern ent, Moreover, party produced even where one evidence. that required it must be remembered the defendant is not evidence, evidence, any including produce medical because proof. compensation juris- bears no burden of Our workers’ that, prudence irrespective credibility has not hеld claimant, lay of the and of the if a determinations witnesses work, then, injured that claimant was physician testifies despite testimony, a lack of factual foundation for that testimony physician accepted must be and the claim matter, granted. In the instant the decision the Common- precedent wealth Court and the Board would set an untenable testimony of requiring production by of medical the de- imposition liability. Regardless fense face the of how evidence, many parties present findings must issue WCJ It findings supported by fact. is these of fact that must be evidence, substantial whether or not the evidence is contro- necessary If the of fact that to support verted. are supported by adjudication are substantial evidence record, supported by then the will be substantial evidence, if that party even evidence demonstrates proof carry with has the burden failed its burden. support negative finding by Substantial evidence can a charged deciding particular tribunal of a outcome presented by cause of action. Insufficient evidence the bur- party provides dened is ascertainable and substantial evidence support finding plaintiff carry that the failed to his or her production plaintiffs burden of and the case has Suffi- failed. presented by cient party evidence the burdened is not provides credited the fact finder is also ascertainable substantial party the burdened has failed to sustain his or of persuasion. her burden When the Common- that, opined wealth presented Court where “no evidence was prevailing party, there no evidence test,” Russell, apply which to the ‘substantial evidence’ A.2d at the focus the court’s review was misdirected. *25 focus capricious disregard analysis That is because a shifts the finder, actions of fact rather than remain attentive credibility presented. As sufficiency to the the evidence discerns, majority capricious disregard analysis is an “appropriate component” consideration when un- dertaking pursuant a review the substantial evidence stan- dard of But it is review. mechanism facilitate capricious disregard analysis applied review. Because the fact, credibility to the determinations eviden- issue, tiary weight of it is not a proceedings standard of in determining review but a tool to be utilized that substantial supports the ultimate determination. substan- tial evidence standard is set forth in 5 of Section the Adminis- Law, Agency trative Pa.C.S. 704 and that is the standard must apply. we
Argued 2002. Dec.
Decided Dec. 2002.