Garrison Architects and Travelers Insurance Co. v. WCAB (Piatetsky) ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Garrison Architects and Travelers :
Insurance Company, :
Petitioners :
:
v. : No. 1095 C.D. 2015
: Submitted: October 23, 2015
Workers’ Compensation Appeal :
Board (Piatetsky), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MARY HANNAH LEAVITT, Judge1
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE LEAVITT FILED: January 22, 2016
Garrison Architects (Employer) and Travelers Insurance Co., petition
for review of the adjudication of the Workers’ Compensation Appeal Board
(Board) awarding fatal claim benefits to Randi Hoffman (Claimant) for the death
of her husband, Michael Piatetsky. In doing so, the Board affirmed the decision of
the Workers’ Compensation Judge (WCJ) that Piatetsky’s fatal cancer was caused
by exposure to asbestos while working as an architect for Employer. Employer
contends that the Board erred because Claimant’s evidence did not support
causation; further, the Board improperly refused to allow Employer’s medical
expert to testify. We affirm.
1
This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt
became President Judge.
On June 15, 2009, Claimant filed a fatal claim petition alleging that
her husband’s (Decedent) death from colon cancer was due to occupational
exposure to asbestos. Claimant and Decedent were married in 1998 and had two
children: Lissa, born in 1995 and Logan, born in 1999. Claimant sought fatal claim
benefits for herself and her two children. Decedent died on October 18, 2006, at
the age of 41.
Decedent had worked part-time for Employer throughout his high
school and college years, while pursuing a degree in architecture. After becoming
a licensed architect in the late 1980s, Decedent was appointed a project architect
by Employer, and he continued in this position throughout his working life.
Decedent worked only for Employer. At the time of his death, Decedent was
earning approximately $100,000 per year.
Claimant testified that Decedent worked primarily on commercial
projects involving the renovation of municipal and school buildings. On occasion,
Decedent came home so covered in dust that he would immediately remove his
clothes upon entering the house. He would wash the clothes separately from the
family’s laundry.
In May 2006, Decedent developed an uncomfortable feeling in his
stomach. Later that month, he was hospitalized and diagnosed with advanced
colon cancer. He died several months later.
Claimant testified that Decedent did not smoke and did not have a
family history of colon cancer. His mother is still alive, and his father died from a
stroke in 2007. Decedent’s siblings remain cancer-free.
Claimant presented the testimony of Francis Baranyai, an architect
employed by Employer from 1983 through 1996, when he retired. Baranyai
2
explained that Employer does both building design and construction. Baranyai,
who often worked with Decedent, stated that approximately 80% of Decedent’s
work was industrial and the remainder was residential. Baranyai testified that
Decedent visited job sites weekly.
Baranyai testified about his visit with Decedent in 1994 to the
abandoned Camden County Municipal Building, a project of Employer. For two
days, Decedent hammered the wall around a window in a prison cell in the
building in an effort to understand the window construction. This generated a
great deal of dust, but neither Decedent nor Baranyai wore a face mask. There
were signs in the building, including the floor where they were located, that said
“danger, asbestos.” Baranyai Deposition, Notes of Testimony at 13 (N.T. __);
Reproduced Record at 126a (R.R. __).
Claimant offered the deposition testimony of Robert Garrison, Jr.,
Employer’s Director of Operations. Garrison’s father founded the firm in 1969,
which became a partnership in 1986. Decedent worked for the firm “from the late
‘80s up until his death,” as a project manager architect. Garrison Deposition, N.T.
11; R.R. 166a. Garrison explained that Decedent worked on approximately 12
projects a year, making frequent trips to the project sites. Garrison conceded that
Decedent worked at sites where asbestos was present and that “[f]rom time to
time” Decedent was exposed to asbestos while at job sites. Garrison Deposition,
N.T. 19; R.R. 174a. Garrison stated that on “rare occasions” Decedent would
encounter asbestos while doing inspections. Garrison Deposition, N.T. 18; R.R.
173a.
Garrison testified that Employer retains business records for ten years
and he did not believe that records produced before 2000 existed. He did find a
3
2001 inspection report authored by Decedent that reported asbestos at a job site
undertaken for the School District of Philadelphia. Garrison was shown numerous
documents reporting asbestos at job sites where Decedent was assigned. One such
document was a report authored by Decedent that material from a collapsed ceiling
in a school building appeared to be asbestos; this observation was later confirmed
in tests. Garrison Deposition, N.T. 35, 190a. Regarding the documents, Garrison
was asked:
Q. And you would agree, sir, that in the thousands of
documents that were made available for inspection which
postdated the year 2000 … that there were many, many others
with similar type notations about those types of findings.
A. Yes.
Garrison Deposition, N.T. 36; R.R. 191a.
Garrison testified that whenever asbestos was discovered or suspected
to be present at a job site, construction would shut down immediately until
specialists conducted remediation. Employees would not be present during
asbestos removal. Garrison testified that Decedent could not be exposed to
asbestos at public buildings, including schools, because they cannot be open to the
public until an asbestos study is done.
Claimant presented the expert medical testimony of Arthur L. Frank,
M.D., Ph.D., who is board certified in internal and occupational medicine. He
holds a doctorate in biology, specializing in the interaction of asbestos with cells.
Dr. Frank serves as Professor of Public Health and Chair of the Department of
Environmental and Occupational Health at Drexel University School of Public
Health; Professor of Medicine at Drexel University College of Medicine; and
Professor of Civil, Architectural and Environmental Engineering at Drexel
4
University College of Engineering. He was a commissioned officer in the United
States Public Health Service for 37 years, assigned to the National Cancer Institute.
Dr. Frank has studied the effects of asbestos for 40 years. He has authored 180
publications, of which at least half involve asbestos, and lectures extensively on
the subject.
Dr. Frank stated that Decedent had no family history of colon cancer
or colonic polyps and did not use tobacco products. Decedent’s autopsy revealed
adenocarcinoma of the colon that had metastasized. Decedent’s cancer started on
the right side of the colon, and Dr. Frank noted that one study has concluded that
colon cancer caused by asbestos is more likely to begin on the right side.
Dr. Frank explained that asbestos causes cancer when the fibers
physically interact with body tissues. When a person breathes in asbestos, the
fibers travel to the lungs and, if swallowed with saliva, can eventually make their
way to the colon. Many studies have demonstrated that asbestos causes genetic
changes in cells that can lead to colon cancer. Dr. Frank acknowledged the
existence of some studies questioning the connection between asbestos exposure
and colorectal cancer, but Dr. Frank does not agree with them.
Dr. Frank testified that the latency period for colon cancer following
exposure to asbestos is ten years, at the low end. He testified that Decedent’s
exposure appeared regular and ongoing because he routinely visited buildings
where asbestos was present. He opined that Decedent’s colon cancer resulted from
his work-related exposure to asbestos.
Employer presented no witnesses at the hearing. The WCJ precluded
Employer from presenting a medical expert because of its continual requests for
continuances, even after the record closed. The WCJ credited Claimant and
5
Baranyai. The WCJ also credited Garrison, with the exception of his “guarantee”
that Decedent had not been exposed to asbestos, which was contradicted by other
evidence including his own testimony. The WCJ credited Dr. Frank’s causation
opinion. The studies cited by Dr. Frank drawing a connection between asbestos
and colon cancer and Decedent’s lack of predisposing factors supported Dr.
Frank’s conclusion. The WCJ noted that Dr. Frank conceded that not all studies
supported his opinion, but the WCJ found this acknowledgment did not detract
from Dr. Frank’s opinion, which “simply makes sense.” WCJ Decision of April
23, 2014, at 8.
The WCJ explained her decision to preclude Employer from
presenting medical evidence after she took over the case from WCJ Martin
Burman in December 2013. On January 30, 2013, Dr. Frank was deposed, giving
Employer 90 days to depose its own medical expert.2 Employer requested
additional time and was given until September 16, 2013, to name its expert. By
that point, WCJ Burman had set the briefing schedule, making Claimant’s brief
due October 16, 2013, and Employer’s brief due 30 days thereafter. On August 25,
2013, WCJ Burman scheduled a hearing for November 26, 2013. Employer asked
for a continuance, and the hearing was rescheduled to December 10, 2013.
On December 8, 2013, WCJ Burman died, and the matter was
reassigned to WCJ Karen Wertheimer, who authored the decision under
consideration here. At the December 10, 2013, hearing Employer requested
additional time to depose its medical expert. The WCJ found that the only purpose
2
“The deposition of a medical expert testifying for the responding party shall be taken within 90
days of the date of the deposition of the last medical expert testifying on behalf of the moving
party.” 34 Pa. Code §131.63(c).
6
of the December 10th hearing was to compel the submission of the parties’ briefs,
as the record was closed. She denied Employer’s request, explaining:
At [the] hearing, there was discussion which clearly showed a
divergence of opinion as to the reason the hearing was held.
Briefs on the issue were submitted, and after review of the
history, it was abundantly clear that the only reason for the
scheduling of [the hearing] was to compel the submission of
briefs. The request by Employer for additional time to
generate, not even submit, medical evidence was viewed by the
undersigned as an attempt to take advantage of the passing of a
Judge by hoping a substitute Judge would be unable to
understand what had taken place before. Fortunately, the
record speaks for itself and as Judge Burman intended to give
no additional time, the undersigned, respecting his rulings,
maintained his intentions. As a result of Employer’s failure to
comply with Judge Burman’s rulings, it was precluded from
submitting medical evidence.
WCJ Decision of 4/23/14 at 7 (emphasis in original).
Both parties appealed to the Board. Employer claimed it had been
improperly precluded from presenting a medical expert and that Claimant did not
meet her burden of proof. Claimant asked for a remand because the WCJ’s
decision did not include the average weekly wage or applicable compensation rate.
The Board rejected Employer’s appeal but granted Claimant’s request for a remand
to calculate specific benefits payable.
On remand, the record established Decedent’s average weekly wage
of $2,288.49 and a corresponding compensation rate of $745.00. In its appeal to
the Board, Employer did not challenge this determination. It simply requested the
Board to finalize its prior order so that Employer could appeal to this Court. The
Board did so, and Employer petitioned for this Court’s review.
7
On appeal, Employer raises four issues.3 First, it argues that
Claimant’s evidence was not sufficient to establish that Decedent had been
exposed to asbestos. Second, it argues that Claimant’s medical expert based his
opinion on flimsy medical studies. Third, it argues that the Board relied on facts
not of record when it stated that Claimant’s expert had reviewed the autopsy
results. Fourth, it argues that it was improperly precluded from submitting its
expert report.
We begin with a review of the relevant law. In an occupational
disease case, a claimant has the burden of proving all the necessary elements to
support an award of benefits. Ferraccio v. Workmen’s Compensation Appeal
Board (Intech Construction Company, Inc.), 646 A.2d 65 (Pa. Cmwlth. 1994).
Section 301(d) of the Workers’ Compensation Act (Act)4 establishes the threshold
requirement for occupational disease benefits:
Compensation for silicosis, anthraco-silicosis, coal worker’s
pneumoconiosis or asbestosis, shall be paid only when it is
shown that the employe has had an aggregate employment of at
least two years in the Commonwealth of Pennsylvania, during a
period of ten years next preceding the date of disability, in an
occupation having a silica, coal or asbestos hazard.
77 P.S. §412. This Court has explained that Section 301(d) “requires a claimant to
prove nothing more than employment for the stated number of years in an
occupation having such a hazard.” Westinghouse Electric Corporation v.
3
This Court’s review of a workers’ compensation adjudication determines whether an error of
law or a constitutional violation was committed or whether the findings of fact are supported by
substantial, competent evidence. Myers v. Workers’ Compensation Appeal Board (University of
Pennsylvania and Alexsis, Inc.), 782 A.2d 1108, 1110 n. 1 (Pa. Cmwlth. 2001).
4
Section 301(d) of the Act of June 2, 1915, P.L. 736, added by the Act of October 17, 1972, P.L.
930, as amended, 77 P.S. §412.
8
Workmen’s Compensation Appeal Board (Phillips), 506 A.2d 978, 979 (Pa.
Cmwlth. 1986).
The issue of whether an occupational hazard exists is a question of
fact. A.C. Moyer Company v. Workmen’s Compensation Appeal Board (Bryner),
445 A.2d 1354, 1355 (Pa. Cmwlth. 1982). The WCJ is the fact finder with the
responsibility for “witness credibility and evidentiary weight.” Shannopin Mining
Company v. Workers’ Compensation Appeal Board (Sereg), 11 A.3d 623, 627 (Pa.
Cmwlth. 2011). As such, the WCJ “is free to accept or reject, in whole or in part,
the testimony of any witness, including medical witnesses.” Id. (quoting Griffiths
v. Workers’ Compensation Appeal Board (Red Lobster), 760 A.2d 72, 76 (Pa.
Cmwlth. 2000)).
In its first issue, Employer contends that Claimant’s evidence did not
establish exposure to asbestos. Claimant’s testimony showed no more than the fact
that Decedent came home on some days dirtier than others. Baranyai testified
about Decedent’s exposure at a single job site. Finally, Garrison testified that
Decedent was not involved with asbestos abatement and “guaranteed” Claimant
was not exposed to asbestos in his work.
Claimant responds that Garrison actually testified that Decedent was
exposed to asbestos on job sites “[f]rom time to time.” Garrison Deposition, N.T.
19; R.R. 174a. Garrison also confirmed that Decedent reported the presence of
asbestos at a job site on several occasions. Garrison conceded that Decedent
“wrote a letter confirming that he personally examined the ceiling in a school and
he noted that the materials that he was directly in contact with on the ceiling …
needed to be analyzed [because he thought it was] asbestos[.],” and subsequent
testing confirmed the presence of asbestos. Garrison Deposition, N.T. 35-36; R.R.
9
190a-91a, 196a. Garrison agreed that there were numerous letters “with similar
type notations about those types of findings.” Garrison Deposition, N.T. 36; R.R.
191a. In short, Garrison’s testimony generally supported a finding that Decedent
was exposed to asbestos in his work, notwithstanding his “guarantee” that
Decedent was not exposed to asbestos in the workplace.
Employer does not challenge any of the WCJ’s factual findings,
which included a finding that Decedent worked on job sites where asbestos was
present; that Decedent found asbestos in inspections; that Employer’s 2001 records
established asbestos at numerous locations at a job site where Decedent worked;
that in 2002 Decedent came in contact with asbestos at another job site; and that
the record contained “many similar documents with similar notations[.]” WCJ
Decision of 4/23/14, Finding of Fact No. 3(d). The WCJ specifically rejected
Garrison’s “guarantee” that Decedent was not exposed to asbestos. WCJ Decision
of 4/23/14, Finding of Fact No. 9. The issue of whether a hazard exists is a
question of fact, and the WCJ is the finder of fact and credibility. Shannopin
Mining Company, 11 A.3d at 627; A.C. Moyer Co., 445 A.2d at 1355
In its claim that Claimant’s evidence was insufficient to prove
asbestos exposure, Employer makes several points. Employer notes that Claimant
was only aware that Decedent came home dirtier when he worked outside the
office; that Baranyai testified about only one job site; and that Garrison stated,
indeed “guaranteed,” that Decedent had not been exposed to asbestos. However,
Employer ignores the other evidence of record that demonstrated Decedent’s
workplace exposure to asbestos as well as the WCJ’s specific rejection of
Garrison’s guarantee. In effect, Employer asks this Court to reweigh the evidence,
which we cannot do. We reject Employer’s first argument.
10
In its second issue, Employer contends that Claimant’s medical
evidence was incompetent because there was no correlation between Decedent’s
job as an architect and the work sites described in the studies referenced by Dr.
Frank. Further, Dr. Frank’s belief that right-sided colon cancer is linked to
asbestos is not universally accepted. Claimant counters that the WCJ found that
Decedent was exposed to an asbestos hazard at work and that his opinion on
causation is supported by numerous studies.
In its challenge to Dr. Frank’s competency, Employer argues that the
job sites described in the studies relied upon by Dr. Frank were different than the
ones where Decedent worked. There is nothing in the record to support this
contention. Likewise, Employer does not cite any authority for its proposition that
Decedent’s professional occupation made it unlikely that his exposure to asbestos
was sufficient to result in colon cancer. As we explained in County of Allegheny
(Department of Aviation) v. Workers’ Compensation Appeal Board (Jernstrom),
848 A.2d 165, 172 n.14 (Pa. Cmwlth. 2004),
the asbestos occupational hazard presents a factual challenge
unlike that presented by silica. Coal dust is not ubiquitous; it is
in coal mines. By contrast asbestos is ubiquitous.
We also explained that it was the claimant’s burden to show “employ[ment] for
two years (out of the ten years preceding his disability), … in the same occupation
... and this occupation exposed him to an asbestos hazard.” Id. at 172.
Here, Claimant established that Decedent worked as an architect for
over 20 years with Employer and that his occupation exposed him to asbestos
within the relevant time period. Dr. Frank reviewed Decedent’s work records and
found that they reported an exposure to asbestos. Dr. Frank opined that this
exposure caused the colon cancer.
11
We reject Employer’s claim that Dr. Frank’s testimony was
incompetent. Dr. Frank testified that most colon cancers originate in the left side
of the colon and that Decedent’s originated on the right side of his colon. Dr.
Frank then stated that “[i]t’s not universal that [asbestos exposure] only causes
right-sided colon cancer but there was one study that found that right-sided colon
cancers were most linked to asbestos.” Dr. Frank Deposition, N.T. 19; R.R. 303a.
However, this was not the sole basis for Dr. Frank’s causation opinion or for the
WCJ’s decision to credit Dr. Frank. Rather, Dr. Frank based his opinion on
numerous facts: Decedent’s youth, his lack of a family history of colon cancer, a
review of Decedent’s medical records, and a review of the testimony and the
documentary evidence of Decedent’s work-related exposure to asbestos.
In its third issue, Employer challenges Decedent’s autopsy results.
Employer Brief at 4. Employer notes that the Board made a material mistake when
it stated that Dr. Frank had “reviewed the autopsy results” because, in fact, he
reviewed the “hospital autopsy summary.” Employer Brief at 39. In support,
Employer notes that Dr. Frank stated that he did not look at Decedent’s tissue
samples because he is not a pathologist. Dr. Frank Deposition, N.T. 53; R.R. 337a.
Employer’s argument here is difficult to follow. Dr. Frank’s
statement that he did not “review tissue samples” does not mean that he did not
“review” the autopsy report. It simply suggests that he did not do an independent
evaluation of the autopsy tissue samples. The Board’s statement that Dr. Frank
“reviewed autopsy results” did not imply an examination of tissue samples. Board
Adjudication at 13. In any case, Employer does not explain why it matters that Dr.
Frank did not personally examine tissue samples.
12
Finally, Employer argues that the WCJ abused her discretion in
precluding Employer from presenting a medical expert. Employer complains that
it took a long time to secure the autopsy results and lab samples. It should not
have been deprived of the opportunity to present its own medical expert.
Employer discusses neither WCJ Burman’s rulings nor the timeline of the case in
general. Claimant presented the Court with the actual timeline of events in a
Supplemental Reproduced Record (S.R.R. __).
The WCJ determines whether “late medical testimony should be
allowed into evidence.” Atkins v. Workers’ Compensation Appeal Board (Stapley
in Germantown), 735 A.2d 196, 199 (Pa. Cmwlth. 1999). The WCJ’s handling of
the proceeding will not be overturned absent a showing of an abuse of that
discretion. Id. Claimant’s expert was deposed on January 30, 2013, which gave
Employer until April 30, 2013, to present an expert for deposition. Employer
requested a 90-day extension which was granted. Accordingly, WCJ Burman
rescheduled the final date of hearing to June 18, 2013.
At the June 18, 2013, hearing, Employer requested another
continuance, and it was granted to September 16, 2013, at which point the WCJ
ordered that the record would automatically close. At the June hearing, the WCJ
ordered Claimant’s brief to be filed on October 16, 2013, and Employer’s 30 days
thereafter to ensure that Employer would produce an expert report no later than
September 16, 2013. On August 26, 2013, WCJ Burman notified the parties that a
hearing would be held on November 26, 2013, but that “if your brief is received
before above date, do not attend this hearing.” S.R.R. 2b. Employer requested the
hearing be rescheduled “due to a personal matter relating to the Thanksgiving
13
holiday[;]” WCJ Burman rescheduled the hearing to December 10, 2013. S.R.R.
3b.
On December 9, 2013, the parties were notified of WCJ Burman’s
death one day earlier. Employer filed a notice of deposition of Michael J. Warhol,
M.D., which it scheduled for January 7, 2014. S.R.R. 6b. At this point, the record
had been closed for months, and Employer had not yet produced a medical report
from Dr. Warhol or any other medical expert.
On December 10, 2013, the parties appeared before WCJ Karen
Wertheimer. Employer sought leave to reopen the record in order to take Dr.
Warhol’s medical deposition, and Claimant objected. On January 8, 2014, WCJ
Wertheimer denied Employer’s request. As explained in her decision of April 23,
2014, she found that Employer attempted to take advantage of WCJ Burman’s
death by deliberately mischaracterizing the purpose of the December 10, 2013,
hearing.
Employer contends it needed additional time to secure autopsy results
and lab samples, but it does not explain when it requested this information or
received it. Employer appears not to have made these points to the WCJ. In any
case, Employer does not refute the WCJ’s conclusion that Employer tried to
manipulate the December 10th hearing to set aside earlier rulings in the case and,
accordingly, we reject Employer’s final assertion of error.
Accordingly, the order of the Board is affirmed.
______________________________
MARY HANNAH LEAVITT, Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Garrison Architects and Travelers :
Insurance Company, :
Petitioners :
:
v. : No. 1095 C.D. 2015
:
Workers’ Compensation Appeal :
Board (Piatetsky), :
Respondent :
ORDER
AND NOW, this 22nd day of January, 2016, the order of the Workers’
Compensation Appeal Board dated June 18, 2015, in the above-captioned matter is
AFFIRMED.
______________________________
MARY HANNAH LEAVITT, Judge