D. Klamut v. WCAB (Fleming Steel Company) ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dennis J. Klamut, :
Petitioner :
:
v. : No. 405 C.D. 2016
: Submitted: August 19, 2016
Workers' Compensation Appeal :
Board (Fleming Steel Company), :
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: December 20, 2016
This workers’ compensation appeal concerns the causal relationship
between a chronic-smoking claimant’s exposure to allergens at work and his
subsequent diagnosis of a lung ailment. In particular, Dennis J. Klamut (Claimant)
petitions for review from an order of the Workers’ Compensation Appeal Board
(Board). The Board reversed an order of a Workers’ Compensation Judge (WCJ)
that granted his claim petition. The Board determined the WCJ’s findings were not
supported by competent medical evidence because Claimant’s medical expert’s
opinions were based on inaccurate information concerning the duration of
Claimant’s exposure to the alleged cause of his lung condition, and his long smoking
history. Claimant asserts the Board erred because his expert confirmed his
opinions in a post-deposition report. Upon review, we affirm.
I. Background
Claimant worked for Fleming Steel Company (Employer) as a field
superintendent repairing and building hangar doors. In that capacity, he traveled to
other states and worked at many work sites for different durations. Relevant here,
while repairing a submarine hangar in Groton, Connecticut in the summer of 2008,
Claimant worked in proximity to pigeon excrement that was piled feet high on a
beam located 60 feet above him. He was exposed for a month before a co-worker,
wearing protective gear, cleaned the area and stored the waste in crates on the
dock. By the time Claimant returned to the work site in October 2008, the
excrement was removed. However, in November 2008, Claimant suffered a
coughing spell and almost blacked out.
Within weeks, Claimant treated with Dr. Ramesh Kaul, who is board
certified in pulmonary medicine (Treating Physician), for shortness of breath and
reduced lung function. Treating Physician documented that Claimant smoked a
pack of cigarettes a day for more than 30 years. However, he recorded that
Claimant quit smoking at that time, and was taking Chantix, a medication designed
for that purpose. Based on this initial visit in November 2008, Treating Physician
attributed Claimant’s symptoms to his smoking history.
Although he returned to the Groton work site for three weeks in
November 2009, Claimant was not re-exposed to excrement. He worked at other
locations until his last day of work, February 2, 2012.
2
During this time, Claimant continued to experience symptoms and
reduced lung function. In February 2012, he was admitted to a hospital after an
episode where he could not breathe while in Charleston, South Carolina. Claimant
was placed on oxygen and received other breathing treatments. Following his
discharge, Claimant quit smoking at that time (not in 2008), and he resumed
treatment with Treating Physician.
On May 17, 2012, Treating Physician and Claimant discussed causes
for his lung deterioration other than smoking. It was not until that medical visit
that Claimant described his exposure to pigeon excrement. Based on his exposure,
which Treating Physician believed was continuous from 2009 to 2012, Treating
Physician diagnosed Claimant with Pigeon Fancier’s disease. Within a few days of
learning this diagnosis, Claimant filed a claim petition attributing his pulmonary
condition to his exposure to pigeon excrement while working for Employer.
Donald J. McGraw, M.D., who is board certified in occupational
medicine (Employer’s Expert), performed an independent medical examination
(IME) of Claimant on December 11, 2012. At that time, he recorded Claimant’s
reported symptomology and exposure to pigeons while on the job. On
examination, Employer’s Expert observed Claimant wheezed and had limited air
movement, which made it difficult for him to get adequate air. Employer’s Expert
was not surprised based on Claimant’s smoking history.
3
The WCJ conducted hearings on the claim petition. In support,
Claimant testified on his own behalf and submitted the deposition testimony of
Treating Physician.
Claimant testified regarding his symptoms, his exposure to pigeons,
and his smoking history. Claimant acknowledged he did not work in Groton since
2009, and prior to that, his exposure to pigeons was limited to approximately a
month in the summer of 2008. Reproduced Record (R.R.) at 100a-01a. He
described his symptoms as shortness of breath and chest pains. Although he
experienced shortness of breath and wheezing prior to his exposure to pigeons in
2008, he testified it increased thereafter. His condition worsened in 2012, when
Claimant had difficulty breathing and felt squeezing on his chest, leading to his
hospitalization in February 2012. Claimant confirmed he began smoking in high
school, and smoked a pack a day for almost 40 years, until he quit after his
hospitalization in 2012. R.R. at 78a, 93a-94a.
Treating Physician first treated Claimant in November 2008, and
resumed treatment when Claimant returned for a second visit in May 2012. Based
on Claimant’s history, “that he was with pigeons between 2009 and 2012,” he
opined Claimant has Pigeon Fancier’s disease. R.R. at 181a. He explained the
disease is a type of pneumonia, caused by Claimant’s hypersensitivity to an
external antigen, aspergillus, which is in dust, mold, mites, and pigeon excrement.
In addition to Claimant’s history, Treating Physician based his
diagnosis on his observations and diagnostic tests, including a CT scan of
4
Claimant’s lungs and a radio assisted test (RAST) for allergens, showing the high
IgE (immunoglobulin of the class E) level for a mold found in pigeon excrement.
He testified it was “remarkable” that in 2008 Claimant “did not have much of a
diffusion defect. His gas exchange was normal… [but then] his diffusion capacity
dropped down from 67 to 46” in 2012. R.R. at 191a.
Regarding Claimant’s smoking history, Treating Physician testified:
A. Between 2008 and ’12, when he got – he started seeing the
lung doctors, he has started to reform his life. He didn’t do his
smoking… but he was accelerating down very fast. He
should’ve showed improvement. See, when you stop smoking
for a couple of years, you actually improve ... You don’t get
inhalation smoke injury. So you should show improvement or,
if not, some plateau. You should not go downwards. So if you
are going downwards and you have a high IgE level, you know
that there’s a secondary factor, which is basically doing the job.
Q: Secondary factor other than smoking?
A: Which is like environmental---. Yeah, which is not his
smoking.
R.R at 194a-95a (emphasis added). He opined Claimant’s condition was not caused
by his chronic obstructive lung disease (COPD) because the CT scan showed a
nodule on his lung, and COPD does not show nodules. Also, his CT scan showed
spots, which improved with steroids. COPD would not improve with steroids.
Treating Physician explained the CT scan from August 2012 showed dramatic
improvement from that in February 2012 which was otherwise not explained.
On cross-examination, Treating Physician acknowledged Claimant
suffers from COPD, which may be attributed to his smoking history. He noted that
5
on the initial visit in November 2008, his impression was COPD, and he opined
that smoking was the cause at that time “because that is the history [Claimant]
gave me.” R.R. at 227a. Treating Physician emphasized his understanding was
that Claimant’s exposure to pigeon excrement was present between 2009 and 2012.
Id. at 227a-28a, 232a-33a. Without that history, he would not attribute Claimant’s
condition to Pigeon Fancier’s disease. Id. at 233a. That is because the diagnostic
tests do not show the cause of the condition. Id. Believing Claimant quit smoking
in 2008, he explained Claimant’s lung condition should have improved between
2008 and 2012. That his condition worsened indicated another cause.
Treating Physician noted the chest X-rays in October 2008, October
and December 2009, and March 2011, showed Claimant’s lung fields were clear.
Then, on February 28, 2012, the chest X-ray and CT scan showed a change, with
mild diffuse interstitial markings. R.R. at 258a. Thus, Claimant’s symptoms were
the same from 2008 through 2012, only the chest X-ray differed. That suggests it
was associated with an acute exposure, repeatedly triggered. Id. at 260a.
Based on the most recent CT scan in August 2012, Treating Physician
recorded in a September 12, 2012 follow-up note to Claimant’s general practitioner
that: “[Claimant] is lucky, he recovered completely.” R.R. at 331a; WCJ Op.,
9/19/14, Finding of Fact (F.F.) No. 13.
Subsequent to his deposition, Treating Physician submitted a one-
page letter dated August 2, 2013, confirming his diagnosis based on the correct
dates of exposure: June 22, 2008 through August 1, 2008, and February 2, 2009
6
through February 6, 2009 (Subsequent Report). Assuming these dates of exposure,
he confirmed “my opinions regarding diagnosis and causation does [sic] not
change.” R.R. at 278a. Regarding Claimant’s smoking history, he explained the
CT chest scans “did not show any signs of new blebs or smoking related changes,
also history was sub-acute the reversibility with steroid treatment shows smoking
would not have made any significant difference if continued.” Id.
In opposition, Employer submitted the deposition testimony of its
expert. He opined Claimant has COPD and emphysema, attributed to his 35-plus
year smoking history, not to Pigeon Fancier’s disease. He based his opinion on
Claimant’s medical records, including the diagnostic studies summarized in his
IME report. He also reviewed Claimant’s testimony. He explained Claimant’s
exposure to pigeons was brief, and removed in time from Claimant’s worsened
condition in 2012. This is inconsistent with the disease, which is an acute
condition with immediate onset, not a delayed response. Employer’s Expert
refuted the significance of the IgE level because it may result from exposure to
other allergens, like dog dander, pollen or dust mites. He explained symptoms
from allergens would not result in any degree of chronicity. He explained there
should be an elevation in eosinophils to indicate allergens, which was normal in
Claimant. Also, Claimant’s most recent CT scan was normal. He emphasized
Claimant reported negative for the psittacosis test, which was the most frequent
test for Pigeon Fancier’s disease. However, Employer’s Expert could not explain
the disappearance of the nodules on Claimant’s 2012 chest X-ray. He
acknowledged nodules are not consistent with COPD.
7
The WCJ admitted the deposition transcripts of both medical experts,
and their reports with one caveat. Employer objected to the admission of the
Subsequent Report based on hearsay. After brief argument on the record, the WCJ
sustained the objection, advising it would be considered only as corroborative
evidence. See Notes of Testimony (N.T.), 10/22/13, at 11. However, when
Claimant advised that he may re-depose Treating Physician based on the objection,
Employer withdrew the objection. Id. at 15.
Ultimately, the WCJ granted Claimant’s claim petition and awarded
medical and indemnity benefits from May 2012, and ongoing. He credited
Treating Physician’s opinion over that of Employer’s Expert because Treating
Physician is certified in pulmonary medicine, and he had a sufficient basis for his
opinions, including his several-year treatment history. The WCJ made no express
determination as to the competence of Treating Physician’s opinion. The WCJ did
not credit the opinion of Employer’s Expert because he could not explain why
Claimant’s CT scans improved, which would not occur with emphysema.
Employer appealed to the Board, arguing the WCJ erred as a matter of law in
relying on Treating Physician’s opinion and not accounting for conflicting
evidence.
The Board reversed the WCJ, concluding he erred as a matter of law
in crediting Treating Physician when his opinion was founded on inaccurate facts.
Specifically, Treating Physician’s opinion was predicated on his belief that
Claimant stopped smoking in 2008, so “[Claimant] didn’t do his smoking,” yet his
symptoms worsened. Bd. Op., 2/17/16, at 6. The date Claimant quit smoking was
8
important because it prompted Treating Physician to look for alternate causes of
Claimant’s worsening condition. Also, the diagnostic studies were not dispositive
as to causation. The Board reasoned, “[Treating Physician] based his diagnoses of
work-related bird fancier’s disease on a history that Claimant [1] had quit smoking
in 2008[;] and[,] [2] had been exposed to pigeon droppings from 2009 to 2012.”
Id. at 10. Because these important assumptions were incorrect, Treating
Physician’s opinion was incompetent. Therefore, the WCJ’s award was not
supported by substantial competent evidence.
Claimant now petitions for review.
II. Discussion
On appeal,1 Claimant contends the Board erred in concluding Treating
Physician’s opinion was incompetent when it accounted for his smoking history
and his exposure to the pigeon antigen in the Subsequent Report. He argues the
Board disregarded the WCJ’s credibility findings that considered the entirety of the
evidence. That Treating Physician subsequently reinforced his causation opinion
after the deposition, when he had the accurate history, removes the challenge to the
competence of his opinion. Rather, the Subsequent Report goes to the weight of
Treating Physician’s testimony, not its competence.
1
Our review is limited to determining whether an error of law was committed, whether
necessary findings of fact were supported by substantial evidence, and whether constitutional
rights were violated. Dep’t of Transp. v. Workers’ Comp. Appeal Bd. (Clippinger), 38 A.3d
1037 (Pa. Cmwlth. 2011).
9
On a claim petition, the claimant bears the burden of proving he
suffers from a work-related injury. Inglis House v. Workmen’s Comp. Appeal Bd.
(Reedy), 634 A.2d 592 (Pa. 1993). The claimant must establish all the elements
supporting an award, including the causal connection between his alleged disability
and the work injury. McCabe v. Workers’ Comp. Appeal Bd. (Dep’t of Revenue),
806 A.2d 512 (Pa. Cmwlth. 2002).
When this causal connection is not obvious, “[u]nequivocal medical
evidence is required.” City of Pittsburgh v. Workers’ Comp. Appeal Bd. (Wilson),
11 A.3d 1071, 1075 (Pa. Cmwlth. 2011). The competency of medical evidence is a
legal conclusion reviewable on appeal. Pryor v. Workers’ Comp. Appeal Bd.
(Colin Serv. Sys.), 923 A.2d 1197 (Pa. Cmwlth. 2006).
By contrast, it is solely for the WCJ as fact-finder to assess credibility
and resolve evidentiary conflicts. Waldameer Park, Inc. v. Workers’ Comp.
Appeal Bd. (Morrison), 819 A.2d 164 (Pa. Cmwlth. 2003). As such, the WCJ may
reject the testimony of any witness, in whole or in part, including a medical expert.
Griffiths. v. Workers’ Comp. Appeal Bd. (Red Lobster), 760 A.2d 72 (Pa. Cmwlth.
2000). A single medical expert’s testimony is a reasonable basis upon which a
WCJ may base a finding of fact despite conflicting evidence. Bethenergy Mines,
Inc. v. Workmen’s Comp. Appeal Bd. (Skirpan), 572 A.2d 838 (Pa. Cmwlth.
1990), aff’d, 612 A.2d 434 (Pa. 1992).
However, “it is well settled that where an expert’s opinion is based on
an assumption which is contrary to the established facts of record, that opinion is
10
worthless.” Williams v. Workers’ Comp. Appeal Bd. (Hahnemann Univ. Hosp.),
834 A.2d 679, 684 (Pa. Cmwlth. 2003). “An opinion that is rendered where the
[expert] does not have a complete grasp of the medical situation and/or the work
incident can render the proffered opinion incompetent.” Long v. Workers’ Comp.
Appeal Bd. (Integrated Health Servs.), 852 A.2d 424, 428 (Pa. Cmwlth. 2004).
Regardless, a medical expert’s opinion is not rendered incompetent
unless it is solely based on inaccurate or false information. Casne v. Workers’
Comp. Appeal Bd. (Stat Couriers, Inc.), 962 A.2d 14 (Pa. Cmwlth. 2008). “[T]he
opinion of a medical expert must be viewed as a whole, and … inaccurate
information will not defeat that opinion unless it is dependent on those
inaccuracies.” Amer. Contracting Enters., Inc. v. Workers’ Comp. Appeal Bd.
(Hurley), 789 A.2d 391, 396 (Pa. Cmwlth. 2001) (italics in original; bold added).
There is no dispute that Treating Physician predicated his opinion at
deposition on two important, yet incorrect, assumptions: (1) Claimant quit
smoking in 2008, and so was not inhaling smoke between 2009 and 2012; and, (2)
Claimant was exposed to significant amounts of pigeon excrement between 2009
and 2012. As to the first assumption, the established facts reflect Claimant
continued smoking from 2008 until he quit in February 2012, so he was inhaling
smoke when his lung condition worsened. R.R. at 78a, 93a-94a. As to the second
assumption, the established facts show Claimant was exposed to pigeon excrement
briefly in the summer of 2008, not from 2009 to 2012. R.R. at 100a-01a.
11
The Board determined these inaccuracies rendered Treating Physician’s
opinion incompetent as a matter of law because they were the basis for linking
Claimant’s condition to Pigeon Fancier’s disease, and tying the exposure to
Employer’s work site. We agree.
Treating Physician opined as to the cause of Claimant’s condition
under the misapprehension that Claimant did not smoke between 2008 and 2012,
and that he was exposed to the pigeon allergen during that period, when in fact, his
exposure ended years before. R.R. at 227a-28a, 232a-33a. Therefore, his opinion
was dependent on those inaccuracies. Indeed, Treating Physician testified both on
direct and cross-examination that he looked to alternate causes for Claimant’s
deteriorating lung capacity because he believed, in error, that Claimant was not
smoking after 2008, and he could not otherwise account for his worsening
condition. R.R. at 181a, 194a-95a
Though it became apparent during Treating Physician’s deposition
that his opinion was predicated on a misapprehension of critical facts, Claimant’s
counsel did not ask him at that time to confirm his opinions after assuming the
correct period of exposure. Instead, Claimant submitted the Subsequent Report
months later, which did not allow for cross-examination.
Setting aside the hearsay problems with the Subsequent Report,
Treating Physician did not explain how an exposure to pigeon excrement, for a short
duration in 2008, caused Claimant to suffer from hypersensitivity pneumonia almost
three-and-a-half years later. Importantly, Treating Physician did not account for
12
this time lapse in the Subsequent Report. That is critical when Treating
Physician’s opinion tying causation of Claimant’s allergic pneumonia to pigeon
excrement was dependent on exposure that “trigger[ed], and trigger[ed]”
Claimant’s response. R.R. at 260a.
Claimant argues Treating Physician’s opinion is not incompetent
because it was not solely based on inaccurate information. Claimant argues Treating
Physician’s opinion was based on his treating history, physical examination, and
diagnostic tests that showed Claimant’s response to an allergen, aspergillus fumigatus.
The tests ruled out COPD and emphysema as causes for Claimant’s condition in
2012, and the CT scans did not show smoking-related changes. We disagree.
The record reflects Treating Physician did not treat Claimant from
2008 through 2012; there was one examination in November 2008 before Claimant
returned to Treating Physician for a second visit on May 17, 2012, the same date
that Treating Physician diagnosed Claimant with Pigeon Fancier’s disease. R.R. at
250a, 261a. Thus, when he diagnosed Claimant, Treating Physician had no history
of treating Claimant for respiratory problems, id. at 261a; the only history he had
of Claimant was the inaccurate understanding that Claimant quit smoking in 2008.
As to the diagnostic tests, Treating Physician submitted competent
evidence that Claimant’s condition in 20122 was not smoking-related. However,
2
Employer also argued to the Board that the WCJ erred in granting ongoing benefits
when Treating Physician testified Claimant fully recovered in September 2012, based on the
most recent CT scan showing the lungs were again clear, and the nodule gone. However, the
Board did not address this issue.
13
Treating Physician also testified that none of the diagnostic tests showed the cause
of the lung condition was pigeon excrement, or that the lung condition was
definitively Pigeon Fancier’s disease, as opposed to some other allergen-related
ailment. R.R. at 233a. Given these lapses, the diagnostic tests do not support
Treating Physician’s causation opinion.
The facts Treating Physician relied on when he testified as to the dates
of Claimant’s exposure are wholly unsupported by the record. Claimant’s
testimony is clear that his exposure to the pigeon excrement was for a limited
duration in 2008, and that when he returned to the worksite in October 2008, the
excrement had been removed.
Understanding the accurate periods of exposure was critical to
rendering a competent medical opinion. Williams. Treating Physician’s opinion
depended on materially false information. As such, that testimony was worthless.
Namani v. Workers’ Comp. Appeal Bd. (A. Duie Pyle), 32 A.3d 850 (Pa. Cmwlth.
2011); Long; Williams.
Absent the Subsequent Report, Treating Physician’s medical opinion
was based on false information and an inaccurate medical history requiring its
exclusion. Newcomer v. Workmen’s Comp. Appeal Bd. (Ward Trucking Corp.), 692
A.2d 1062 (Pa. 1997). The sole medical opinion evidence Claimant submitted
containing accurate periods of exposure to the allergen was the Subsequent Report.
However, as hearsay, Treating Physician’s statement in the Subsequent Report
14
(that he did not change his opinions regarding causation and Claimant’s diagnosis)
does not constitute competent medical evidence as a matter of law.
Under the Walker rule, hearsay evidence, admitted without objection,
may support a finding if it is corroborated by any competent evidence in the
record, but a finding of fact based solely on hearsay will not stand. Walker v.
Unemployment Comp. Bd. of Review, 367 A.2d 366 (Pa. Cmwlth. 1976). The
Walker rule applies in workers’ compensation proceedings. Furnari v. Workers’
Comp. Appeal Bd. (Temple Inland), 90 A.3d 53 (Pa. Cmwlth. 2014).
Unobjected to hearsay evidence relating to a causal connection must
be corroborated not by lay testimony, but by competent medical evidence. Calcara
v. Workers’ Comp. Appeal Bd. (St. Joseph Hosp.), 706 A.2d 1286 (Pa. Cmwlth.
1998). In Calcara, this Court “made clear that corroboration by the testimony of the
claimant or another untrained lay witness is insufficient.” Kensington Mfg. Co. v.
Workers’ Comp. Appeal Bd. (Walker), 780 A.2d 820, 822 (Pa. Cmwlth. 2001).
Further, an employer’s failure to object to hearsay evidence does not relieve a
claimant of the burden to present competent corroborative medical evidence when
causation is not obvious. Calcara.
Here, where causation of his condition was not obvious, Claimant
needed to establish causation through competent medical testimony. City of
Pittsburgh. That Employer withdrew its hearsay objection to the Subsequent Report
did not render it competent or overcome its status as hearsay. Walker. Claimant did
not submit any other medical evidence to show a causal connection between his
15
exposure to pigeon excrement and his decreased lung capacity. Calcara. Thus,
Treating Physician’s opinion is not corroborated by medical evidence. Id. As a
result, there is no competent medical opinion evidence attributing Claimant’s lung
condition to his exposure to pigeon excrement on Employer’s work site in 2008.
Because Claimant did not submit any medical opinion evidence
other than Treating Physician’s deposition and the Subsequent Report, one of
which is incompetent because it depends upon inaccuracies, and the other of which
is hearsay, he did not submit substantial competent evidence to support his claim.
Accordingly, the WCJ erred in granting Claimant’s claim petition.
III. Conclusion
For the foregoing reasons, the Board’s order is affirmed.
ROBERT SIMPSON, Judge
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dennis J. Klamut, :
Petitioner :
:
v. : No. 405 C.D. 2016
:
Workers' Compensation Appeal :
Board (Fleming Steel Company), :
Respondent :
ORDER
AND NOW, this 20th day of December, 2016, the order of the
Workers’ Compensation Appeal Board is AFFIRMED.
ROBERT SIMPSON, Judge