P. DiLaqua v. City of Philadelphia Fire Dept. (WCAB) ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Peter DiLaqua, :
Petitioner :
:
v. :
:
City of Philadelphia Fire Department :
(Workers’ Compensation Appeal :
Board), : No. 1262 C.D. 2020
Respondent : Argued: November 15, 2021
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION BY
JUDGE COVEY FILED: December 23, 2021
Peter DiLaqua (Claimant) petitions this Court for review of the
Workers’ Compensation (WC) Appeal Board’s (Board) December 16, 2020 order
that reversed the WC Judge’s (WCJ) decision, thereby denying Claimant’s Claim
Petition for WC (Claim Petition). Claimant presents two issues for this Court’s
review: (1) whether the Board erred by applying an incorrect burden of proof to the
rebuttable presumption in Section 301(e) of the WC Act (Act)1 (Presumption) and
making findings of fact contrary to those made by the WCJ; and (2) whether the
Board erred by ruling that Claimant failed to meet his burden of proving a work-
related injury even without the Presumption. After review, this Court reverses and
remands.
1
Act of June 2, 1915, P.L. 736, as amended, added by Section 3 of the Act of October 17,
1972, P.L. 930, 77 P.S. § 413.
Background
The City of Philadelphia Fire Department (Employer) hired Claimant
as a firefighter in 2003. After 2 years of fighting fires, Claimant spent 11 years
working for Employer’s Visual Communication Unit (VCU). Although Claimant’s
VCU duties consisted mostly of office work, he was also required to go to and
photograph multiple-alarm fires, fire fatalities, and other accident scenes where he
spent numerous hours directly exposed to soot and fire debris. See WCJ Finding of
Fact (WCJ FOF) 6b, WCJ Dec. at 3 (Reproduced Record (R.R.) at 13a).
“[Claimant’s] eyes would tear and become red at the scenes. At the end of the day,
his nasal mucous would be black and he coughed-up soot.” Id. Over time, Claimant
experienced asthma symptoms and he developed bronchitis approximately five
times per year.
In August 2016, after undergoing testing, Claimant’s doctor informed
him that he “was suffering from RADS (Reactive Airways Dysfunction
Syndrome)[,] which is a form of occupational asthma.” R.R. at 91a. By August 22,
2016 letter, Claimant notified Employer of his RADS diagnosis and requested
Employer to recognize his condition as a compensable work injury. See R.R. at 91a;
see also WCJ FOF 6c, WCJ Dec. at 3-4 (R.R. at 13a-14a). On September 26, 2016,
Employer rejected Claimant’s request and issued a Notice of Denial. See R.R. at
151a-152a. Claimant continued to work for Employer until June 2018, when he left
work due to an unrelated elbow injury.2 See WCJ FOF 6d, WCJ Dec. at 4 (R.R. at
14a); see also R.R. at 57a-58a, 81a.
2
In July 2018, the VCU became part of Employer’s community outreach team (referred to
in the record as CAT). See WCJ FOF 6d, WCJ Dec. at 4 (R.R. at 14a); see also R.R. at 56a-57a.
Claimant has not yet worked for Employer as part of the CAT team because he was out for his
elbow injury before the transfer occurred. See WCJ FOF 6d, WCJ Dec. at 4 (R.R. at 14a); see also
R.R. at 57a-58a.
2
On August 23, 2018, Claimant filed the Claim Petition, therein seeking
WC benefits for “[RADS,]” R.R. at 1a, caused by his exposure to smoke and toxic
fumes at fire scenes from 2003 until June 2018. See R.R. at 2a-4a. Employer
opposed the Claim Petition. See R.R. at 5a-10a.
The matter was assigned to a WCJ, who conducted hearings on
September 20 and November 27, 2018, and May 16 and July 18, 2019. On
November 14, 2019, the WCJ granted the Claim Petition for medical bills only,3
declaring that Claimant met his burden of proving that his occupation as a fireman
was a substantial cause of his pulmonary condition. See WCJ Dec. at 5 (R.R. at
15a). Employer appealed to the Board. On December 16, 2020, the Board reversed
the WCJ’s decision, ruling that the Presumption did not apply because Claimant
failed to prove income loss, and Claimant’s medical evidence did not support a
finding that Claimant’s pulmonary condition was work-related.4 See Board Op. at
11 (R.R. at 34a). Claimant appealed to this Court.5
Discussion
Pursuant to Section 301(c)(1) of the Act, an employer is
only liable to pay a claimant’s medical expenses that arise
from and are caused by a work-related injury. [See] 77
P.S. § 411(1). Initially, the claimant bears the burden of
3
At the November 27, 2018 WCJ hearing, Claimant clarified that, since he was out of work
due to his elbow injury, at that point, he was not claiming lost wages. See R.R. at 41a-42a; see
also WCJ FOF 4, WCJ Dec. at 3 (R.R. at 13a). The WCJ specifically found: “There is no evidence
that [Claimant] is suffering any loss of earnings due to this injury.” WCJ FOF 11, WCJ Dec. at 6
(R.R. at 16a).
4
One Board member dissented, stating: “Claimant satisfied the requirements to establish
the [P]resumption in favor of Claimant pursuant to [Section 108(o) of the Act, added by Section 1
of the Act of October 17, 1972, P.L. 930].” Board Op. at 12 (R.R. at 35a).
5
“Our review is limited to determining whether the WCJ’s findings of fact were supported
by substantial evidence, whether an error of law was committed or whether constitutional rights
were violated.” Bristol Borough v. Workers’ Comp. Appeal Bd. (Burnett), 206 A.3d 585, 595 n.6
(Pa. Cmwlth. 2019).
3
establishing that an injury is work-related. Generally, a
claimant satisfies h[is] burden by presenting unequivocal
medical evidence that establishes a causal connection
between the alleged injury and the work incident.
Roundtree v. Workers’ Comp. Appeal Bd. (City of Phila.), 116 A.3d 140, 144 (Pa.
Cmwlth. 2015) (citation omitted). Section 301(c)(2) of the Act defines injury to
include an “occupational disease as defined in [S]ection 108 of th[e] [A]ct.” 77 P.S.
§ 411(2). Section 108(o) of the Act lists among compensable occupational diseases:
Diseases of the . . . lungs, resulting in either temporary or
permanent total or partial disability[6] . . . , after four years
or more of service in fire[]fighting . . . , caused . . . by
exposure to heat, smoke, fumes or gasses, arising directly
out of the employment of any such firemen.
77 P.S. § 27.1(o). This Court has explained that, “[t]o become eligible for
compensation for an occupational disease under Section 108 of the Act . . . , a
claimant must prove a disability resulting from a disease enumerated in Section 108
[of the Act,] and that the disease arose out of and was related to the claimant’s
employment.” Bristol Borough v. Workers’ Comp. Appeal Bd. (Burnett), 206 A.3d
585, 605 (Pa. Cmwlth. 2019).
However, pursuant to Section 301(e) of the Act:7
If it be shown that the employe, at or immediately before
the date of disability, was employed in any occupation or
industry in which the occupational disease is a hazard, it
shall be presumed that the employe’s occupational disease
arose out of and in the course of his employment, but this
[P]resumption shall not be conclusive.
77 P.S. § 413. The Pennsylvania Supreme Court has explained:
6
“[T]he term ‘disability’ is a term of art in the [WC] context. Generally, ‘disability’ is
synonymous with loss of earning power resulting from a work-related injury.” Whitfield v.
Workers’ Comp. Appeal Bd. (Tenet Health Sys. Hahnemann LLC), 188 A.3d 599, 612 (Pa.
Cmwlth. 2018).
7
Added by Section 3 of the Act of October 17, 1972, P.L. 930.
4
[O]nce a claimant establishes that he suffers from an
enumerated occupational disease, he is entitled to the
[P]resumption that the disease arose during the course of
his employment. The burden then shifts to the employer
to rebut the [P]resumption with substantial, competent
evidence. . . . “Medical evidence that relies on
possibilities, or is less than positive, will not constitute
legally competent evidence to establish causation.”
Indus[.] Recision Serv[s.] v. W[orkers’] C[omp.] A[ppeal]
B[d.] (Farbo), 808 A.2d 994 (Pa. Cmwlth. 2002).
City of Phila. v. Workers’ Comp. Appeal Bd. (Kriebel), 29 A.3d 762, 769 (Pa. 2011)
(citations omitted).
Claimant argues that the Board erred by applying an incorrect burden
of proof to the Presumption and making findings of fact contrary to those made by
the WCJ.
The Board reversed the WCJ’s decision, in part, because the WCJ
applied the Presumption to Claimant’s medical-only Claim Petition, reasoning:
A claimant is entitled to the [P]resumption only where the
claimant has established that he contracted one of the
diseases enumerated by Section 108 of the Act and that the
disease has caused his disability. Repash [v. Workers’
Comp. Appeal Bd. (City of Phila.), 961 A.2d 227 (Pa.
Cmwlth. 2008)]. . . . Here, Claimant indicated that he is
not alleging disability related to his pulmonary issues. In
fact, Claimant conceded that he is currently disabled due
to a non-work-related elbow issue and sought only
medical benefits for his pulmonary problems. [(See R.R.
at 41a, 56a-57a)]. Likewise, Claimant has failed to
establish that his lung disease enumerated in Section
108(o) of the Act caused disability, and therefore,
Claimant is not entitled to the rebuttable [P]resumption.
Because he was not entitled to the rebuttable
[P]resumption, and we cannot say that Claimant’s
pulmonary issues were obviously connected to his work as
a firefighter, it was Claimant’s burden to establish through
unequivocal medical evidence that his pulmonary issues
were caused by his occupation.
Board Op. at 9-10 (R.R. at 32a-33a).
5
This Court recognizes that Claimant admitted to the WCJ that he had
no lost income as a result of the injury listed in the Claim Petition, see R.R. at 41a,
and the WCJ specifically found that “there is no evidence that [Claimant] is suffering
any loss of earnings due to this injury.” WCJ FOF 11, WCJ Dec. at 6 (R.R. at 16a).
This Court also acknowledges its prior holdings that disability is a condition
precedent to applying the Presumption.
A claimant proceeding under Section 108(o) of the Act
“must first establish that he or she is suffering from and
[is] disabled by this particular occupational disease.”
Buchanan v. Workmen’s Comp[.] Appeal B[d.] (City of
Phila[.]), 659 A.2d 54 (Pa. Cmwlth. 1995)[.] . . . Once a
claimant establishes that he is suffering from and [is]
disabled by the occupational disease, then the claimant is
entitled to a [P]resumption that the occupational disease
arose out of and in the course of his or her employment.
Rex v. Workers’ Comp. Appeal Bd. (City of Oil City), 879 A.2d 854, 862 (Pa.
Cmwlth. 2005); see also Buchanan; Allingham v. Workmen’s Comp. Appeal Bd.
(City of Pittsburgh), 659 A.2d 49 (Pa. Cmwlth. 1995); Hebden v. Workmen’s Comp.
Appeal Bd. (Bethenergy Mines, Inc.), 597 A.2d 182, 192 (Pa. Cmwlth. 1991), rev’d
on other grounds, 632 A.2d 1302 (Pa. 1993) (“A claimant who . . . is entitled to the
[Presumption] that the disease ‘arose out of and in the course of his employment,’
must nevertheless show that he or she was disabled (lost earning power) as a result
of the disease.”).
However, in City of Philadelphia v. Workers’ Compensation Appeal
Board (Cospelich), 893 A.2d 171 (Pa. Cmwlth. 2006), wherein the employer took
the position the Board proffered here, this Court explained:
In [Buchanan and Allingham], the claimant was seeking
total or partial disability benefits as a result of an
occupational disease and the issues before the [C]ourt
involved, inter alia, whether the claimant had met his
burden of proving that he was in fact disabled by the
6
occupational disease. Here, [the claimant] has not alleged
that he is disabled, nor sought compensation benefits. Our
research has not revealed any appellate decisional law
holding that a claimant suffering from an occupational
disease was not entitled to payment of reasonable and
necessary medical expenses because the disease had not
yet caused the claimant to sustain a loss of earnings.
Moreover, such a holding would be inconsistent with both
the Act and other settled decisions of this [C]ourt. Section
306(f.1)(1) of the Act, as amended, 77 P.S. § 531(1)
provides, in pertinent part:
(i) The employer shall provide payment in
accordance with this section for reasonable
surgical and medical services, services rendered
by physicians or other health care providers[] . . . .
(ii) In addition to the above service, the employer
shall provide payment for medicines and supplies,
hospital treatment, services and supplies and
orthopedic appliances, and prostheses in
accordance with this section. . . . [] The provisions
of this section shall apply to injuries whether or
not loss of earning power occurs. . . .
(Emphasis added.) Thus, the Act requires an employer to
pay for work-related medical expenses whether or not a
loss of earnings has occurred.
In Odd Fellow’s Home of Pennsylvania v. Workmen’s
Comp[ensation] Appeal [Board] (Cook), . . . 601 A.2d 465([Pa. Cmwlth.] 1991), this [C]ourt discussed the same
principle established by the precursor to Section 306(f.1)
[of the Act], opining:
[Employer] also argues that the [WCJ] erred in
determining that [the claimant] was entitled to an
award for reimbursement of medical expenses
pursuant to [former S]ection 306(f) of the [A]ct,
77 P.S. § 531. Although we hold that [the
claimant] has failed to prove a disability, the denial
of disability benefits is not inconsistent with an
award for medical expenses incurred for treatment
of a work-related injury. An employee is not
required to show that an injury resulted in loss of
earnings to permit receipt of reimbursement for
7
medical expenses. As subsection 4 of [S]ection
306 of the [A]ct provides:
The employer shall provide payment for
medicines and supplies, hospital treatment,
services and supplies and orthopedic
appliances. . . . The provisions of this
[sub]section shall apply in injuries whether or
not loss of earning power occurs.[FN12]
[Odd Fellow’s Home, 601 A.2d] at 471 (citations omitted,
footnote added). Accord Canestrale v. Workmen’s Comp.
Appeal Bd. (Wheeling Pittsburgh Steel), . . . 634 A.2d 841([Pa. Cmwlth.] 1993). Indeed, it is now well[ ]established
that an employer should issue a notice of compensation
payable/denial in a “medical only” claim or risk the
imposition of penalties for a violation of the Act. See
Orenich v. Workers’ Comp. Appeal Bd. (Geisinger Wyo[.]
Valley Med. Ctr.), 863 A.2d 165 (Pa. Cmwlth. 2004) . . . .
According[ly], we conclude that the Board and WCJ did
not err in concluding that [the claimant] was entitled to
medical benefits relating to his hepatitis C despite not
having incurred any loss of earnings.
In conjunction with the above argument, [the] employer
contends that [the claimant’s] lack of disability precludes
application of the [P]resumption set forth in Section
301(e)[ of the Act]. The [Presumption] “is an evidentiary
advantage for a claimant who has contracted an
‘occupational disease’ in an occupation or industry in
which such disease is a hazard,” City of Phila[.] v.
Workers’ Comp. Appeal Bd. (Rilling), 827 A.2d 1258,
1262 (Pa. Cmwlth. 2003) . . . ; in such cases, the claimant
is entitled to the rebuttable [P]resumption that the
occupational disease arose out of and in the course of his
employment. [See] Allingham . . . [citing Hebden . . . . ].
In addition to the [P]resumption established by Section
301(e) [of the Act], Section 108(m.1) [of the Act (relating
to hepatitis C)] contains a [P]resumption specifically for
firefighters who sustain hepatitis C while engaged in their
occupation. Unlike the [P]resumption in Section 301(e)
[of the Act], . . . Section 108(m.1) [of the Act] does not
even use the term disability, so [it] cannot even arguably
require loss of earnings for the [P]resumption to
8
apply.[FN15] Thus, we conclude that the WCJ did not err in
applying the [P]resumption in this case.
[FN12]
While [former] Section 306(f) [of the Act]
has since been amended and renumbered to
Section 306(f.1) [of the Act], this obligation has
not changed. See [77 P.S. § 531(1)(i), (ii)].
[FN15]
The requirement that a claimant must prove
disability to be entitled to the Section 301(e) [of
the Act] [P]resumption seems illogical since the
[P]resumption only relieves the claimant from
proving that his occupational disease arose in the
course of his employment.
Cospelich, 893 A.2d at 178-79 (italics added; footnotes omitted).
A few months after deciding Cospelich, this Court again ruled, in Young
v. Workers’ Compensation Appeal Board (Zinc Corp. of America), 897 A.2d 530,
534-35 (Pa. Cmwlth. 2006), aff’d as modified, 922 A.2d 891 (Pa. 2007):
Despite language in the Act and case law generally stating
that eligibility for compensation depends upon proof of
disability, which is synonymous with earnings loss, our
[C]ourt has clarified that a claimant suffering from an
occupational disease is entitled to payment of reasonable
and necessary medical expenses regardless of whether the
disease has caused earnings loss.
Young, 897 A.2d at 534-35 (citations omitted); see also Caffey v. Workers’ Comp.
Appeal Bd. (City of Phila.), 185 A.3d 437, 446 (Pa. Cmwlth. 2018) (“If [a c]laimant
can establish that he sustained an occupational disease under any applicable
provisions of the Act, he is entitled to payment of his medical bills related to his
occupational disease even though he did not suffer a loss in earnings.”).
Based on Cospelich, Young, and Caffey, this Court holds that the Board
erred by ruling that Claimant had to prove disability (i.e., earnings loss) before the
WCJ could apply the Presumption in this case. Rather, for the Presumption to apply
relative to his medical-only Claim Petition, Claimant only had to prove that he
9
suffered from an occupational disease listed in Section 108 of the Act. See Steele v.
Workers’ Comp. Appeal Bd. (Findlay Twp.), 155 A.3d 1173 (Pa Cmwlth. 2017). If
successful in doing so, Claimant would be relieved of the burden of proving that his
“disease arose out of and in the course of his employment[.]” 77 P.S. § 413.
Accordingly, this Court reverses the portion of the Board’s order ruling that
Claimant had to prove disability in this instance.
Having clarified the applicable burdens of proof, this Court will now
review the record to determine whether Claimant met his burden of proving that he
“has an occupational disease listed in Section 108 of the Act[.]” Steele, 155 A.3d at
1177.
At the WCJ hearings, Claimant testified8 that, although Employer
provided respiratory protection equipment when he fought fires for the first two
years of his employment, Employer did not provide such equipment when he
photographed fire scenes for the VCU. See R.R. at 50a. Claimant estimated that he
photographed 8 to 10 multiple-alarm fires per year and, over time, he photographed
50 to 70 rooms where deaths occurred. See R.R. at 77a-79a. Claimant explained
that, for multiple alarm fires, he would be at a scene for 8 to 10 hours and, relative
to death investigations, he would be at a fire scene for at least 6 hours. See R.R. at
49a, 76a.
According to Claimant, he has never smoked cigarettes, and has not
lived with a smoker (his mother) since his early teens. See R.R. at 66a-67a. He
declared that he never had breathing problems, asthma, or bronchitis before he
worked for Employer. See R.R. at 73a-75a. Claimant recalled that, in approximately
2015, he began experiencing breathing problems and had successive bouts of
bronchitis and, after testing, was diagnosed with RADS and he notified Employer.
8
The WCJ observed at the hearing that “Claimant spoke in a slow and labored voice.”
R.R. at 13a; see also R.R. at 59a.
10
See R.R. at 51a-54a, 69a-70a, 82a. Claimant stated that his respiratory condition has
gotten progressively worse over time, and he loses his voice depending on the air
temperature. See R.R. at 58a-59a, 61a, 81a-82a. Notwithstanding, Claimant
continued to work for Employer until his elbow injury caused him to stop working
in June 2018. See R.R. at 58a.
Claimant represented that he currently treats with pulmonologist Gary
Aaronson, D.O. (Dr. Aaronson) approximately every six months, who has prescribed
medications and an inhaler for him. See R.R. at 61a-63a, 84a. Claimant indicated
he plans to return to work for Employer once his elbow injury resolves. See R.R. at
59a-60a. However, Claimant expressed concern that he will be unable to use the
breathing devices Employer now supplies for the community outreach team (referred
to as CAT) because now he “can’t breathe through a sheet.” R.R. at 60a.
Claimant also presented a packet of medical reports from his treating
physicians - Neil M. Cohen, D.O. (Dr. Cohen), Aditi Satti, M.D. (Dr. Satti), Miriam
Rosado, M.D. (Dr. Rosado), Justin Palatt, M.D. (Dr. Palatt), and Dr. Aaronson9 -
that the WCJ admitted into the record.10 According to Dr. Palatt’s records review
summary, on November 24, 2012, Claimant treated for a subjective cough. See R.R.
at 92a. On December 12, 2013, Claimant was seen for upper respiratory symptoms,
diagnosed with sinusitis, and prescribed medication. See id. On July 23, 2014,
9
Dr. Cohen was Claimant’s primary care doctor from 2006 until 2017. See R.R. at 142a.
Dr. Cohen initially treated Claimant for bronchitis and, ultimately, referred Claimant to
pulmonologist Dr. Satti at the Temple Lung Center. See R.R. at 69a-73a. Dr. Rosado has been
Claimant’s primary care doctor since 2017. See R.R. at 72a-73a. Dr. Palatt is another physician
in Dr. Rosado’s practice who has treated Claimant. See R.R. at 92a.
10
A significant portion of Claimant’s medical history was supplied in Dr. Palatt’s July 17,
2019 records review summary, the supporting records for which are not included in this record;
thus, more detailed information is unavailable to this Court. See R.R. at 92a-93a. Claimant’s
counsel represented at the November 15, 2021 oral argument before this Court that, since this
matter was a medical-only claim involving disability of 52 weeks or less, pursuant to Section
422(c) of the Act, added by Section 6 of the Act of June 26, 1919, P.L. 642, 77 P.S. § 835, unsworn
medical reports and office notes were admissible in the absence of the opposing party’s objection.
11
Claimant was again treated for sinusitis, plus an upper respiratory infection and
pharyngitis. See id. On February 3, 2015, Claimant was treated for a cough and
fever. See id.
On February 24, 2016, Dr. Cohen examined Claimant for a cough with
sputum and chest tightness that Dr. Cohen diagnosed as acute bronchitis. See R.R.
at 92a, 128a-129a. On March 21, 2016, Claimant again treated with Dr. Cohen for
a cough, chest tightness, shortness of breath, and wheezing that Dr. Cohen
determined was recurrent bronchitis with possible mild asthma, for which he was
given an albuterol inhaler and referred to Dr. Satti. See R.R. at 92a, 126a-127a. On
April 8, 2016, Dr. Satti examined Claimant, diagnosed that he had chronic asthma
and prescribed a mometasone inhaler in addition to his albuterol inhaler. See R.R.
at 92a. During his annual examination with Dr. Cohen on May 10, 2016, Claimant
reported a continued cough and shortness of breath, along with fatigue and lack of
energy. See R.R. at 123a-125a. On August 1, 2016, Claimant underwent a skin test,
that was negative for tuberculosis. See R.R. at 92a, 116a-117a. On August 9, 2016,
Dr. Satti increased Claimant’s mometasone dose and referred him for allergy
testing.11 See R.R. at 92a, 113a-114a.
Claimant again visited Dr. Cohen on October 21, 2016, for cough, chest
tightness, and shortness of breath made worse by recent fires, distress due to his fear
of not having enough breath to fight fires, and stomach issues related to his
medications. See R.R. at 110a-112a, 119a-122a. Dr. Cohen diagnosed Claimant
with anxiety, “mild persistent asthma without complication,” gastroesophageal
reflux disease and gastritis, and referred Claimant for an echocardiogram and to a
gastroenterologist. R.R. at 121a. Claimant followed up with Dr. Rosado on
11
The allergy test results do not appear to have been included in the record before the WCJ.
12
November 29, 2016, who diagnosed Claimant with chronic asthma. See R.R. at 92a,
107a-109a, 130a.
On March 31, 2017, on Dr. Satti’s referral that referenced Claimant’s
associated diagnoses of “[r]eactive airway disease” (RAD)[12] and “unspecified
asthma severity, uncomplicated,” R.R. at 131a, Claimant underwent a
cardiopulmonary exercise test that he was unable to complete due to shortness of
breath; notwithstanding, the test findings suggested that Claimant’s limitations were
cardiac rather than pulmonary in nature. See R.R. at 92a, 131a-137a, 141a-142a.
On April 25, 2017, Dr. Satti ordered an echocardiogram and referred Claimant to a
cardiologist for dyspnea (i.e., shortness of breath). See R.R. at 92a.
On March 29, 2018, Claimant had a preventative visit with Dr. Rosado
who changed his mometasone to Symbicort and referred him for additional testing.
See id. Claimant’s April 4, 2018 chest x-ray was negative for pathology. See R.R.
at 92a, 101a. Claimant followed up with Dr. Rosado on July 3, 2018, who reported
that Claimant was doing well on Symbicort; however, he became symptomatic when
he tried stopping it. See R.R. at 93a. During that visit, Claimant complained of,
inter alia, anxiety, asthma, bronchitis, and shortness of breath. See R.R. at 104a-
106a. Dr. Rosado diagnosed Claimant with “[a]sthma [chronic obstructive
pulmonary disease]” and opined that, since Claimant was a firefighter, “I think
[Claimant’s] pulmonary issues have something to do with his occupation.” R.R. at
106a.
Claimant treated with Dr. Aaronson on July 12, 2018, for asthma
symptoms, and Dr. Aaronson diagnosed Claimant with moderate, persistent asthma
and intermittent sinusitis and bronchitis. See R.R. at 93a, 99a-103a. Dr. Aaronson
declared: “[G]iven [Claimant] is a firefighter and has exposure in the workplace to
12
Although it is not clear based on this record, it appears that RAD and RADS are separate
and distinct conditions.
13
caustic materials he would benefit from wearing a respirator at all times while
investigating fire scenes and fighting fires[.]” R.R. at 103a. On July 13, 2018,
Claimant underwent an echocardiogram, that showed only mild left ventricular
hypertrophy. See R.R. at 93a. On July 19, 2018, Claimant treated at an urgent care
facility for sinusitis. See id.
On January 8, 2019, Dr. Aaronson again saw Claimant, and noted that
Claimant continued to have intermittent asthma (currently stable), sinusitis and
bronchitis, and repeated: “[G]iven [Claimant] is a firefighter and has exposure in the
workplace to caustic materials he would benefit from wearing a respirator at all times
while investigating fire scenes and fighting fires.” R.R. at 98a; see also R.R. at 93a,
94a-98a. Dr. Aaronson added:
In my professional medical opinion[,] patients with
asthma [RAD] should take precautions (respirator/[m]ask)
in the workplace when exposed to smoke and fumes[,] as
this can potentially cause worsening symptoms, cause
exacerbations and deterioration in pulmonary function
tests.
Would suggest pulmonary function testing yearly to
monitor [Claimant’s] pulmonary status. [Claimant] was
started on inhaler therapy . . . and is monitoring his peak
flows. [Claimant] has follow-up appointment [in] July
2019[,] at which time further suggestions and assessment
can be made concerning his asthma.
R.R. at 94a.
On July 8, 2019, Claimant had a preventative visit with Dr. Palatt,
during which Claimant was not experiencing pulmonary symptoms. See R.R. at 93a.
On July 16, 2019, Dr. Palatt summarized, based on his review of Claimant’s medical
records:
[O]ccupational exposures are a major risk for pulmonary
disease. [Claimant] reports not having a mask for much of
his career and this is certainly an occupational exposure
14
which could lead to asthma. His cardiopulmonary testing
suggested a cardiac limitation, his decreased peak flow
suggests pulmonary disease. These results are discordant
and repeat pulmonary function testing may help further
clarify this, as well as completing a cardiac evaluation if
not yet done. From the standpoint of symptoms, it is clear
that he is [sic] improved after having to remove himself
from the work environment for unrelated reasons.
Id.
In addition to Claimant’s medical records, the WCJ admitted the
Independent Medical Evaluation (IME) report of Employer’s expert John R. Cohn,
M.D. (Dr. Cohn) into the record. According to the IME report, Dr. Cohn evaluated
Claimant on March 4, 2019, at Employer’s request. At that time, the only medical
record Dr. Cohn reviewed was Dr. Satti’s April 25, 2017 letter, reflecting that
Claimant had a persistent cough, and cardiopulmonary exercise testing revealed
Claimant’s exercise limitations were cardiac- not pulmonary-related. See R.R. at
142a, 144a, 146a. Dr. Cohn also observed that Dr. Satti’s April 25, 2017 letter,
referenced RAD, not RADS. See R.R. at 143a.
Dr. Cohn took Claimant’s medical history, during which Claimant
informed Dr. Cohn that he “is always clearing his throat and having a cough[, and]
[h]e complains of some shortness of breath and wheeze [sic].” R.R. at 145a.
Claimant reported that he uses a Symbicort inhaler (Symbicort 80 - one puff twice
per day; or Symbicort 160 - one puff at night), and a rescue inhaler that he uses up
to three times per week. See R.R. at 143a. Claimant described to Dr. Cohn that he
had four episodes of bronchitis (and four rounds of antibiotics) since July 2018. See
R.R. at 143a-144a. Claimant also shared that he experiences episodes of waking at
night gasping for breath, which increased in frequency over the preceding three
months. See R.R. at 144a.
During the physical examination, Dr. Cohn discovered that Claimant’s
chest was clear, and he notably did not cough during the IME. See R.R. at 145a. Dr.
15
Cohn also observed that Claimant had a deviated septum and “some anxiety.” R.R.
at 145a. Dr. Cohn’s IME report reflects that Claimant underwent spirometry testing;
the first test was “entirely normal,” R.R. at 145a, and, after complaining of chest
tightness, Claimant used his inhaler and repeated the spirometry, which “was
essentially unchanged.” R.R. at 146a.
Dr. Cohn concluded:
At this point, [Claimant] complains of episodes of cough
and shortness of breath with impaired exercise tolerance.
His pulmonary function tests are entirely normal, and there
is no response to bronchodilator. He has some impairment
of his exercise tolerance, but based on what I could find in
Dr. Satti’s April 25, 2017 letter, his limitation is cardiac,
not pulmonary. I cannot identify any objective evidence
of a lung problem. He does have complaints of a cough
with some sputum, but he also has a deviated nasal
septum, and it’s possible that he has a post[-]nasal drip.
His pulmonary function tests do not demonstrate evidence
of asthma, and his methacholine challenge is characterized
in [Dr. Satti’s] letter as negative. Unfortunately, his
detailed results were not available.
. . . . I cannot demonstrate evidence of asthma to support
a diagnosis of [RADS], and [Claimant’s] exercise study
suggested that his shortness of breath with exertion was
related to cardiac disease or deconditioning, rather than to
a pulmonary injury.
R.R. at 146a. In an April 1, 2019 letter, Dr. Cohn reported receiving and reviewing
Claimant’s testimony and additional medical records, but declared that those
documents did not alter his March 4, 2019 IME opinion. See R.R. at 150a.
“The law is well[]settled that ‘[t]he WCJ has exclusive authority to act
as fact[-]finder, determine credibility of witnesses, and weigh the evidence.’”
Rogele, Inc. v. Workers’ Comp. Appeal Bd. (Hall), 198 A.3d 1195, 1204 (Pa.
Cmwlth. 2018) (quoting Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns,
Inc.), 99 A.3d 598, 601 n.6 (Pa. Cmwlth. 2014)). “The WCJ, therefore, is free to
16
accept or reject, in whole or in part, the testimony of any witness, including medical
witnesses.” Griffiths v. Workers’ Comp. Appeal Bd. (Red Lobster), 760 A.2d 72, 76
(Pa. Cmwlth. 2000).
In this case, the WCJ made the following relevant factual findings:
2. By letter of August 22, 2016, Claimant placed the
Employer on notice that he was advised by a
pulmonologist that he suffered from RADS which is a
form of occupational asthma. Claimant further stated that
he believed the illness was from the direct exposure to soot
and debris on the job. Claimant requested that this be
recognized as a [WC] injury.
....
9. This [WCJ] finds Claimant to be credible based largely
on his demeanor and comportment at the hearing. No
contrary factual testimony was presented. His testimony
is consistent with the medical records. Of prime
importance is his testimony that he was exposed for hours
at a time to smoke and soot while investigating fire scenes
and that he wore no respiratory protection during this
exposure.
10. This [WCJ] finds as fact that [] Claimant suffers from
asthma that is causally related to his occupation as a
fireman. Claimant’s occupation is a substantial causal
factor in his pulmonary condition. In totality, the reports
of Drs. Rosado, Aaronson and Palatt support this finding.
This [WCJ] rejects the contrary opinion of Dr. Cohn. In
rendering this finding, this [WCJ] notes the following to
be significant:
a. Dr. Cohn concludes that [] Claimant does not
have a respiratory condition. He is the only
physician to hold this conclusion and it is contrary
to numerous treating physicians -- Drs. Rosado,
Palatt, Aaronson[,] Satti[,] and Cohen. These
physicians are from several different offices, yet
all concur in the diagnosis of asthma. The
diagnosis is corroborated by Claimant’s decrease
in peak flow on respiratory testing and also his
17
deterioration when removed from the asthma
medication.
b. Dr. Palatt noted that occupational exposures are
a major risk for pulmonary disease and the failure
of Claimant to wear a mask could lead to the
asthma. He also noted that Claimant has improved
after removal from the work environment which
further supports the causal relationship.
c. Dr. Aaronson stated that smoke and fumes can
worsen symptoms, cause exacerbations and
deterioration in pulmonary function. He cautioned
that Claimant would benefit from a respirator
when investigating fire scenes to protest [sic]
himself from caustic material. This precaution
supports the causal relationship between the
asthma and the work place.
d. Dr. Rosado clearly stated that she believed that
the pulmonary issues had a casual [sic]
relationship with the asthma.
e. Dr. Cohn evaluated Claimant only one time for
purpose of this litigation. The other physicians
were treating physicians with more exposure to
Claimant.
WCJ Dec. at 3-6 (R.R. at 13a-16a). Although the WCJ did not reference the
Presumption in his decision, and it is unclear whether he applied it to this case, he
nevertheless concluded: “Claimant sustained the burden on this Claim Petition and
established that he suffers asthma that is causally related to the work environment.
Claimant is entitled to the payment of all reasonable and necessary medical expenses
related to the work injury.” WCJ Dec. at 6 (R.R. at 16a) (emphasis added).
On appeal, neither the Board nor this Court may reweigh the evidence
or the WCJ’s credibility determinations,13 see Sell v. Workers’ Comp. Appeal Bd.
13
Specifically, “Section 422(a) [of the Act, 77 P.S. § 834,] does not permit a party to
challenge or second-guess the WCJ’s reasons for credibility determinations. [Thus, u]nless made
arbitrarily or capriciously, a WCJ’s credibility determinations will be upheld on appeal.” Pa.
Uninsured Emps. Guar. Fund v. Workers’ Comp. Appeal Bd. (Lyle), 91 A.3d 297, 303 (Pa.
18
(LNP Eng’g), 771 A.2d 1246 (Pa. 2001), and “‘[t]he WCJ’s findings will not be
disturbed if they are supported by substantial, competent evidence.’” Rogele, Inc.,
198 A.3d at 1204 (quoting Stepp, 99 A.3d at 601 n.6). “‘Substantial evidence . . .
[i]s such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.’” Aqua Am., Inc. v. Workers’ Comp. Appeal Bd. (Jeffers), 199 A.3d
482, 486 (Pa. Cmwlth. 2018) (quoting Gibson v. Workers’ Comp. Appeal Bd. (Armco
Stainless & Alloy Prods.), 861 A.2d 938, 943 (Pa. 2004)).
“In performing a substantial evidence analysis, this
[C]ourt must view the evidence in a light most favorable
to the party [that] prevailed before the fact[-]finder [(i.e.,
Claimant)].” “Moreover, we are to draw all reasonable
inferences which are deducible from the evidence in
support of the fact[-]finder’s decision in favor of that
prevailing party.” It does not matter if there is evidence in
the record supporting findings contrary to those made by
the WCJ; the pertinent inquiry is whether the evidence
supports the WCJ’s findings.
3D Trucking Co., Inc. v. Workers’ Comp. Appeal Bd. (Fine & Anthony Holdings
Int’l), 921 A.2d 1281, 1288 (Pa. Cmwlth. 2007) (citations omitted) (quoting
Waldameer Park, Inc. v. Workers’ Comp. Appeal Bd. (Morrison), 819 A.2d 164, 168
(Pa. Cmwlth. 2003)).
Here, the Board held:
[T]he WCJ erred in determining that Claimant met his
burden establishing that his asthma was caused by his
employment with [Employer] as a firefighter because
Claimant failed to present a medical opinion
Cmwlth. 2014) (quoting Dorsey v. Workers’ Comp. Appeal Bd. (Crossing Constr. Co.), 893 A.2d
191, 195 (Pa. Cmwlth. 2006) (citation omitted)). Capricious disregard “occurs only when the fact-
finder deliberately ignores relevant, competent evidence.” Williams v. Workers’ Comp. Appeal
Bd. (USX Corp.-Fairless Works), 862 A.2d 137, 145 (Pa. Cmwlth. 2004). Capricious disregard,
by definition, does not exist where, as here, the WCJ expressly considered and rejected evidence.
See id.
19unequivocally linking his asthma to his occupation as a
firefighter. . . .
. . . . Claimant’s physicians seem to be in agreement that
Claimant has contracted a pulmonary condition.
Nevertheless, none of the medical records clearly and
unambiguously attribute Claimant’s pulmonary conditions
to his exposure to gas, heat, smoke, and fumes endured in
his occupation as a firefighter. Although Dr. Rosado
indicated her belief that Claimant’s “pulmonary issues
have something to do with his occupation” [(R.R. at
106a)], Dr. Aaronson opined that[,] as a firefighter,
Claimant was exposed to caustic materials [(see R.R. at
98a)], and Dr. Palatt expressed that “occupational
exposures are a major risk for pulmonary disease” [(R.R.
at 93a)], none of these medical professionals indicated that
it was their professional belief that Claimant’s exposure to
smoke, heat, fumes, and gases in his work as a firefighter
caused his pulmonary issues. Rather, these credible
medical opinions leave doubt as to the direct cause of
Claimant’s pulmonary condition, and as such are
insufficient to meet Claimant’s burden of producing
unequivocal medical evidence to support that his condition
was work[]related.
Board Op. at 9-11 (R.R. at 32a-34a) (footnote omitted; emphasis added).
Pursuant to Section 419 of the Act,14 77 P.S. § 852, the Board is
authorized to remand any case to the WCJ “where the WCJ fails to make findings
on a crucial issue for a proper application of the law[,]” Commonwealth/Dep’t of
Pub. Welfare v. Workers’ Comp. Appeal Bd. (Harvey), 960 A.2d 957, 964 (Pa.
Cmwlth. 2008), aff’d, 993 A.2d 270 (Pa. 2010), “where the findings of fact fail to
resolve a necessary issue raised by the parties[,]” Steinhouse v. Workers’ Comp.
Appeal Bd. (A.P. Green Servs.), 783 A.2d 352, 356 (Pa. Cmwlth. 2001), and/or
“where . . . [the] WCJ makes findings that are inconsistent with his legal
conclusions[.]” Craftsmen v. Workers’ Comp. Appeal Bd. (Krouchick), 809 A.2d
434, 438 (Pa. Cmwlth. 2002).
14
Added by Section 6 of the Act of June 26, 1919, P.L. 642.
20
Here, the WCJ concluded that Claimant “sustained [his] burden . . . and
established that he suffers asthma that is causally related to the work environment.”
WCJ Dec. at 6 (R.R. at 16a). Indeed, the credited medical evidence supported the
WCJ’s finding and conclusion that “Claimant suffers from asthma.”15 WCJ FOF
10, WCJ Dec. at 5 (R.R. at 15a) (emphasis added); see also Conclusion of Law 2,
WCJ Dec. at 6 (R.R. at 16a). However, the WCJ reached this conclusion despite
that Claimant put Employer on notice that he suffered from work-related RADS, see
R.R. at 91a, and he specified in his Claim Petition that the work injury for which he
sought compensation was RADS. See R.R. at 1a; see also WCJ FOF 4, WCJ Dec. at
3 (R.R. at 13a). The WCJ did not reference, let alone make a factual finding, that
Claimant proved the only injury he specified in the Claim Petition - RADS. Nor did
Employer challenge the WCJ’s finding of asthma or conclusion of law related
thereto. The record is not clear, and the WCJ did not expressly conclude, that RADS
and asthma are one and the same.16 Considering that Claimant had the burden of
proving all of the elements necessary to support his claim for compensation, see
Hawbaker v. Workers’ Comp. Appeal Bd. (Kriner’s Quality Roofing Servs. &
Uninsured Emp. Guar. Fund), 159 A.3d 61 (Pa. Cmwlth. 2017), and it is does not
appear that the WCJ amended Claimant’s Claim Petition injury description,17 the
WCJ failed to address a key issue.
15
Viewing the evidence in a light most favorable to Claimant, and drawing all reasonable
inferences in Claimant’s favor, as this Court must, we hold that the WCJ’s findings that Claimant
proved he has asthma are supported by record evidence and, thus, the Board erred to the extent
that it made any findings of fact contrary to those made by the WCJ on that subject.
16
In fact, only Claimant’s August 22, 2016 letter to Employer declared that RADS “is a
form of occupational asthma.” See R.R. at 91a.
17
“[L]iberal pleading rules apply in [WC] matters.” Sloane v. Workers’ Comp. Appeal Bd.
(Children’s Hosp. of Phila.), 124 A.3d 778, 787 (Pa. Cmwlth. 2015). Section 131.35(a) of the
Board’s Regulations declares: “A party has the right to amend a pleading at any time in a
proceeding before a [WCJ] unless the [WCJ] determines that another party has established
prejudice as a result of the amendment.” 34 Pa. Code § 131.35(a). Although a claimant may not
be permitted to amend a claim petition to assert an entirely new injury after the limitations period
21
Rather than remanding on that error, the Board further exacerbated the
matter. Notably, the Board agreed Claimant’s evidence supported that he suffers
from a pulmonary condition, but disputed that it was caused by Claimant’s
employment, declaring that Claimant’s causation evidence was equivocal.18
Moreover, the Board addressed the Presumption when it does not appear that it was
raised before or considered by the WCJ.19
Importantly, regardless of whether Claimant pled and/or proved he has
RADS, asthma, or a pulmonary condition, he “is entitled to the [rebuttable
P]resumption that the disease arose during the course of his employment[,]” City of
Phila., 29 A.3d at 769, only if he has an occupational disease listed in Section 108
of the Act. Section 108 of the Act specifies: “The term ‘occupational disease’ . . .
shall mean only the following diseases. . . . (o) [d]iseases of the . . . lungs . . . ”
suffered by firefighters. 77 P.S. § 27.1 (emphasis added). RADS, asthma, and
has passed, this Court has held that, when the amendment does not change the theory of recovery,
such that the employer has been on notice and has been defending the identical claim since the
original filing, the amendment will not be time-barred. See Sota Constr. Servs., Inc. v. Workers’
Comp. Appeal Bd. (Czarnecki, Zawilla d/b/a Gorilla Constr.), 224 A.3d 63 (Pa. Cmwlth. 2019);
see also Findlay Refractories v. Workmen’s Comp. Appeal Bd., 415 A.2d 1270 (Pa. Cmwlth.
1980).
18
“Generally, . . . unequivocal medical evidence [is necessary to] establish[] a causal
connection between the alleged injury and the work incident” when the connection is not obvious.
Roundtree, 116 A.3d at 144. This Court has explained that, although Section 422(c) of the Act
authorized the WCJ to admit unsworn hearsay medical reports in lieu of medical testimony,
“[w]hether the content of the forms sufficiently address the matters at issue, and whether the forms
are persuasive are questions relating to the credibility and to weight of this evidence rather than to
its admissibility.” Joy Glob., Inc. v. Workers’ Comp. Appeal Bd. (Hogue), 876 A.2d 1098, 1105
(Pa. Cmwlth. 2005). Therefore, Section 422(c) of the Act does not relieve a claimant of his burden
to offer substantial unequivocal medical evidence to support the allegations in his claim petition.
Medical reports that merely summarize a claimant’s treatment and do not provide a foundation
and/or conclusion regarding causation may not satisfy that burden.
19
Unequivocal medical evidence is also necessary if the Presumption does not apply. See
Craftex Mills, Inc. of PA v. Workers’ Comp. Appeal Bd. (Markowicz), 901 A.2d 1077 (Pa. Cmwlth.
2006) (when a claimant does not have the benefit of the Presumption, he has the normal burden of
presenting unequivocal medical evidence of the illness and causation by workplace exposure).
22
pulmonary condition are not specifically listed as occupational diseases in Section
108 of the Act, and it is not clear whether the General Assembly intended that
“[d]iseases of the . . . lungs” referred to in Section 108(o) of the Act include RADS,
asthma, or a pulmonary condition. Id. Neither the WCJ nor the Board addressed
that key legal issue.
Regardless, this Court may not ignore a glaring error of
law relating to the application of an incorrect legal
standard upon the very issue before [it]. In examining
questions of law, our review is plenary. Tomaskevitch v.
Specialty Rec[s.] Corp., 717 A.2d 30 (Pa. Cmwlth. 1998).
Even when neither party raises the issue, we may review a
case upon the correct legal principles that apply in
fulfillment of our review function. See Mayo v.
Lichtenwalner, . . . 557 A.2d 798 ([Pa. Cmwlth.] 1989).
We must exercise our appellate review consistent with
established precedent. Burger v. Zoning Hearing B[d.] of
the Mun[.] of Penn Hills, . . . 485 A.2d 879 ([Pa. Cmwlth.]
1984).
Donovan v. Workers’ Comp. Appeal Bd. (Acad. Med. Realty), 739 A.2d 1156, 1161
(Pa. Cmwlth. 1999); see also Malecki v. Workers’ Comp. Appeal Bd. (Franklin Reg’l
Sch. Dist.) (Pa. Cmwlth. No. 582 C.D. 2020, filed Mar. 26, 2021).20
Here, key to the Board’s and this Court’s review is whether Claimant
proved his entitlement to WC benefits. Specifically, whether he proved the injury
he alleged in the Claim Petition, and whether it was causally related to his
employment (or he was entitled to the Presumption). Because those issues cannot
be resolved by this Court, this matter must be remanded to the Board and the WCJ
for application of the correct legal principles.
20
Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code
§ 69.414(a), an unreported panel decision of this Court issued after January 15, 2008, may be cited
for its persuasive value, but not as binding precedent. Malecki is cited for its persuasive value.
23
Conclusion
Based on the foregoing, this Court reverses the Board’s order and
remands the matter to the Board to remand to the WCJ for further proceedings
consistent with this Opinion.
_________________________________
ANNE E. COVEY, Judge
Senior Judge Leadbetter concurs in the result only.
24
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Peter DiLaqua, :
Petitioner :
:
v. :
:
City of Philadelphia Fire Department :
(Workers’ Compensation Appeal :
Board), : No. 1262 C.D. 2020
Respondent :
ORDER
AND NOW, this 23rd day of December, 2021, the Workers’
Compensation Appeal Board’s (Board) December 16, 2020 order is reversed, and
the matter is remanded to the Board to remand to the Workers’ Compensation Judge
for further proceedings consistent with this Opinion.
Jurisdiction is relinquished.
_________________________________
ANNE E. COVEY, Judge