Solid Waste Services, Inc., d/b/a J.P. Mascaro & Sons v. WCAB (Boos) ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Solid Waste Services, Inc., d/b/a :
J.P. Mascaro & Sons, :
Petitioner :
:
v. : No. 441 C.D. 2020
: Submitted: September 18, 2020
Workers’ Compensation Appeal :
Board (Boos), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: March 31, 2021
Solid Waste Services, Inc., d/b/a J.P. Mascaro & Sons (Employer) petitions
for review of the Order of the Workers’ Compensation Appeal Board (Board) that
affirmed the Decision of a Workers’ Compensation Judge (WCJ) granting Mark
Boos’s (Claimant) Claim Petition. On appeal, Employer argues that the Board erred
in affirming because: (1) the WCJ’s finding that Claimant’s work-related laceration
became infected was not supported by substantial evidence; (2) Claimant’s medical
expert’s causative testimony was equivocal and, therefore, legally incompetent; and
(3) the award of ongoing disability benefits was impermissibly based on the mere
possibility that Claimant’s symptoms will recur in the future. Upon review, we
affirm because substantial evidence supported the WCJ’s findings, Claimant’s
medical expert’s testimony was not equivocal, and the award of ongoing benefits
was not based on the potential that Claimant might have future symptoms, but on a
finding that Claimant’s symptoms are ongoing.
I. Background
A. Claim Petition
On October 10, 2017, Claimant filed the Claim Petition alleging that, on
March 21, 2017, he was knocked off of a truck at a landfill and sustained a work-
related injury in the nature of a laceration to his lower left leg that resulted in
Claimant developing an autoimmune disease. (WCJ Decision, Finding of Fact
(FOF) ¶ 1; see Claim Petition, Reproduced Record (R.R.) at 8a.) Claimant sought
total disability benefits ongoing from March 21, 2017. Employer filed an answer
denying the Claim Petition’s material allegations.
The matter was assigned to the WCJ, who held two hearings. At the first
hearing, on November 3, 2017, the WCJ held a preliminary discussion with counsel,
and at the second, on April 11, 2018, Claimant testified live before the WCJ and
offered photographic and documentary evidence, as well as the trial deposition
testimony of Sean McCall, D.O., a board-certified internist (Claimant’s Expert).
Employer presented the trial deposition testimony of Samuel Valenti, M.D., also a
board-certified internist (Employer’s Expert).
B. Claimant’s Evidence
In support of his Claim Petition, Claimant testified as follows.1 Claimant
worked for Employer as a tractor-trailer driver, hauling garbage from New Jersey to
Keystone Landfill in Dunmore. On March 21, 2017, while maneuvering his truck
on to a tipper machine at Keystone Landfill, Claimant fell out of his truck and into
1
Claimant’s testimony is summarized in Findings of Fact 3-7, and the transcript of that
testimony is found at pages 97a-139a of the reproduced record.
2
the garbage pit, cutting his left leg on a piece of metal. Claimant immediately called
his supervisor and explained what happened. He washed the laceration with saline
solution and, two hours later, went to Employer’s office, where he was instructed to
seek treatment at Northeast Rehabilitation in Scranton. At Northeast Rehabilitation,
Claimant saw Employer’s Expert, who cleaned the laceration and prescribed
Claimant antibiotics. Thereafter, Claimant returned to work in a limited capacity,
seeing Employer’s Expert on several more occasions. On one of those “visit[s,]
[C]laimant recalled expressing concern to [Employer’s Expert] that he still had pus[]
coming out of the wound.” (FOF ¶ 5.) Employer’s Expert “cleaned the wound and
released [C]laimant to full[-]duty work.” (Id.)
After resuming work driving the tractor-trailer, Claimant recalled an incident,
which he testified occurred approximately one month after his accident, in which his
left foot became swollen and he had to cut his boot off. While Claimant took
approximately two days off from work, the swelling eventually subsided, and he
returned to work for approximately two to three weeks. A second swelling episode
occurred in June 2017, this time in Claimant’s hands, which prevented him from
driving, and so Employer assigned him office duties. It is at this point that Claimant
saw Claimant’s Expert, who prescribed Prednisone and referred Claimant to David
M. Pugliese, D.O., a rheumatologist.
Dr. Pugliese examined Claimant and authored a note in August 2017
explaining that Claimant was under his care for inflammatory arthritis, which
interfered with Claimant’s ability to safely work, and suggesting that Claimant be
given two to four weeks off from work. (Id.) Dr. Pugliese referred Claimant to an
immunologist, Yoon Kim, D.O., who saw Claimant twice, ordered bloodwork, and
adjusted Claimant’s medications. Claimant testified that swelling like that which
3
occurred in his feet and hands occurred elsewhere, including his tongue, mouth,
esophagus, and throat. As a result, Claimant carries an Epinephrine pen and
Prednisone. “Claimant has not returned to work in any capacity since August 30,
2017.” (Id.) Claimant identified various photographs of his body, including one
showing the injury to his leg “approximately two weeks after the [laceration]
occurred,” (R.R. at 105a; R.R. at 149a), and others showing swelling in various parts
of Claimant’s body, (id.at 117a-25a).
Claimant’s Expert testified by deposition as follows.2 Claimant has been his
patient since approximately 2014, and, with respect to Claimant’s work accident,
Claimant’s Expert first saw Claimant on June 15, 2017, at which time Claimant
complained of severe swelling in both hands. Claimant reported having a work
injury that resulted in a leg wound, which ultimately became infected. Claimant’s
Expert stated: “I do believe he did have an infection based upon [Employer’s
Expert’s] description o[f] the laceration and the fact that [Employer’s Expert] started
him on dual antibiotic therapy . . . .” (FOF ¶ 10 (quoting Claimant’s Expert’s
Deposition (Dep.) at 12, R.R. at 182a).) After a second visit on July 5, 2017, at
which Claimant complained of tongue swelling, shortness of breath, and difficulty
swallowing, Claimant’s Expert diagnosed Claimant with angioedema “presumably
due to an adverse reaction to [the medication] Plaquenil.” (Id. ¶ 11 (quoting
Claimant’s Expert’s Dep. at 13, R.R. at 183a).) Though the diagnosis of angioedema
remained unchanged, “the [etiology] has not inasmuch as [C]laimant has been off
Plaquenil ever since and the angioedema has persisted.” (Id.) Claimant saw
Claimant’s Expert two more times – on September 29, 2017, and March 13, 2018 –
and was examined by several specialists, including Dr. Pugliese, Dr. Kim, and Amit
2
Claimant’s Expert’s deposition testimony is summarized in Findings of Fact 8-17, and
the transcript of that deposition testimony is found at pages 172a-221a of the reproduced record.
4
Sharma, M.D., an infectious disease doctor, whose office notes Claimant’s Expert
reviewed.3
Claimant’s Expert expressed his opinion “that [C]laimant has angioedema
with no causative bacteria or [etiology], apparently, according to the immunologist.”
(Id. ¶ 14.) Specifically, Claimant’s Expert testified:
Something is flaring it up, and we have a suspicion and a reasonable
certainty that, from the timeline that I have been taking care of
[Claimant], I believe his issues started shortly after his leg injury, and
have never totally resolved, and have flared-up off and on since that
time.
(Id. (quoting Claimant’s Expert’s Dep. at 21, R.R. at 191a).) He stated that Claimant
had none of these problems before March 21, 2017. On direct examination,
Claimant’s Expert testified as follows:
Q. As a result of your treatment of [Claimant], your understanding
of his injury, also the review of [Employer’s Expert’s] records, and, by
the way, the review of that photograph [showing the laceration], do you
have an opinion within a reasonable degree of medical certainty as to
whether or not the injury which caused the laceration also resulted in
an infection?
A. It’s my opinion that that injury did relate, did cause an infection
to [Claimant].
Q. And, Doctor, the next opinion based on your treatment and
treatment of referral physicians within your medical group, and your
occasion to review their opinions, and also your occasion to continue
to treat [Claimant], do you have an opinion within a reasonable degree
of medical certainty as to, number one, the diagnosis, which I believe
you already stated, but you can state it again.
A. Angioedema.
3
On the day of his deposition, Claimant’s Expert reviewed for the first time the office notes
of Employer’s Expert. (FOF ¶ 9.)
5
Q. And, Doctor, based on the history, the medical background as
you understood [Claimant’s] condition to be prior to March 21, 2017,
up until today’s date, whether or not there’s a connection between his
injury, the laceration, infection, and the angioedema?
A. I believe there is a connection between the infection and the
angioedema, as it never was present before, and it surfaced fairly soon
after his injury.
Q. Is that opinion based within a reasonable degree of medical
certainty?
A. Yes, it is.
(R.R. at 192a-93a.) While acknowledging that angioedema can result from a variety
of causes, Claimant’s Expert believed causes other than the infection had been ruled
out by the specialists to which Claimant was referred. (FOF ¶ 15; R.R. at 194a.)4 In
response to the question of whether Claimant is “disabled for driving tractor-trailer,”
Claimant’s Expert responded:
I would consider him disabled, because when he has these flare-ups,
they are potentially life-threatening, as the tongue can swell, he can get
short of breath, his hands can swell substantially to the point where it
does inhibit safe control of steering wheels and reaction times and
things like that, in my opinion.
(R.R. at 194a.)
On cross-examination, Claimant’s Expert testified that, while he reviewed a
photograph of the laceration of Claimant’s leg, he had not seen other photographs
showing Claimant’s swollen feet, lips, tongue, and the rashes on his body.
4
On redirect examination, Claimant’s Expert was questioned whether causative factors
other than infection had been ruled out, to which he answered: “The factors that I would have
thought of as an internist? Yes. I would have deferred to the immunologist to make sure all the
other causes would have been ruled out.” (R.R. at 209a.)
6
Claimant’s Expert was presented with a September 8, 2017 note written by Dr.
Pugliese, which Claimant’s Expert read into the record:
[Claimant] has an inflammatory arthritis and has asked if it could be
related to an injury and infection that he obtained at work. I’ve
explained to him that there are many theories about the development of
autoimmune disease. While one of them does suggest that a genetically
predisposed person could have expression of his or her autoimmunity
triggered by infection/trauma or another in[citing] event, there’s no way
to prove cause and effect. The temporal profile in this case does fit the
pattern, but, [] again, there’s no way to prove causality.
(FOF ¶ 16 (quoting Claimant’s Expert’s Dep. at 38-39, R.R. at 208a-09a).) On
redirect examination, when asked whether an infection is an accepted cause of
angioedema, Claimant’s Expert stated that “[i]t could be one, yes.” (R.R. at 209a.)
In addition, Claimant’s Expert was presented with another note from Dr. Pugliese,
dated January 3, 2018, which he read into the record:
[Claimant] has developed severe angioedema that is related to an
infection that he got at work. The angioedema has been persistent and
has interfered with his ability to at times swallow and even breath[e].
In addition to the angioedema[,] there has been pain and fatigue and
rash. He is currently unable to work as a result of this. He is being
referred to multiple specialists, including immunology and infectious
disease in addition to my care in rheumatology. He’s on multiple
medications to help manage this, but to date we have not been able to
control the disease.
It is my opinion that[,] within a certain degree of medical certainty[,]
[Claimant’s] decline is a direct result of the infection that he got in
March.
(FOF ¶ 17 (quoting Claimant’s Expert’s Dep. at 42-43, R.R. at 212a-13a).)
7
C. Employer’s Evidence
Employer’s Expert examined Claimant on four occasions in March and April
of 2017 and testified by deposition as follows.5 On March 21, 2017, the date of
Claimant’s injury, Employer’s Expert described Claimant’s laceration as superficial
in that the skin was together, it was not bleeding, and “there was no significant
manifestation of an infective process.” (Id. ¶ 18.) Employer’s Expert cleaned the
laceration with Betadine and peroxide, dressed the wound with a bandage, and
prescribed Claimant antibiotics out of concern for “the potential of infection” given
where Claimant fell. (R.R. at 294a-95a.) In an unscheduled visit 48 hours later,
Claimant presented with increased pain and concern about drainage from the wound.
Employer’s Expert noticed “no significant manifestation of an infection.” (Id. at
296a.) At Claimant’s third visit to Employer’s Expert, Claimant reported that the
drainage was improving but the discomfort in his leg persisted. Employer’s Expert
directed Claimant to finish his antibiotics and return in a week. At Claimant’s final
visit on April 3, 2017, Employer’s Expert noted good scab formation, minimal
scarring, and found no evidence of an infective process. “[H]is impression . . . was
that the laceration healed nicely”; he found no need for further treatment. (FOF
¶ 21.)
Employer’s Expert “[did not] believe that any autoimmune phenomenon [is]
[] related to [Claimant’s] work injury . . . .” (Id. ¶ 23 (quoting Employer’s Expert’s
Dep. at 26, R.R. at 307a).) Employer’s Expert explained that, in order to trigger the
expression of autoimmunity, “the trauma needs to be significant enough or the
medical process [must] be [] severe enough for the body to recognize itself as foreign
and develop a significant immune or autoimmune response to itself.” (Id. (quoting
Employer’s Expert’s deposition testimony is summarized in Findings of Fact 18-25, and
5
the transcript of that deposition testimony is found at pages 282a-343a of the reproduced record.
8
Employer’s Expert’s Dep. at 27, R.R. at 308a).) Here, Employer’s Expert opined
that the trauma Claimant experienced was “not significant enough to create a[n
autoimmune] response.” (R.R. at 309a.)
When asked on cross-examination whether Claimant had an infection,
Employer’s Expert responded: “I don’t believe he did.” (FOF ¶ 25 (quoting
Employer’s Expert’s Dep. at 40-41, R.R. at 321a-22a).) According to Employer’s
Expert’s notes pertaining to his physical examination of Claimant, there was good
healing, no drainage, no erythema, and no induration. Based on Employer’s Expert’s
interpretation of Claimant’s treatment records, while “there was a concern of an
autoimmune disease, as well as inflammatory arthritide, [] the actual diagnosis . . .
was [not] stated.” (Id. (quoting Employer’s Expert’s Dep. at 45, R.R. at 326a).)
D. WCJ Decision
The WCJ summarized the parties’ relevant evidence as follows. Claimant cut
his leg while on the job, (id. ¶ 26a), and thereafter experienced bouts of swelling,
(id. ¶¶ 26d-26f), which he did not experience prior to his work injury, (id. ¶ 26g).
Based on that history, and Claimant having been prescribed antibiotics and reseen
by Employer’s Expert, Claimant’s Expert “gathered [C]laimant had an infection.”
(Id. ¶ 26h.) Claimant’s Expert opined that “there is a connection between the
infection and [Claimant’s diagnosis of] angioedema as it was never present before
and surfaced soon after his injury.” (Id. ¶ 26j.) The symptoms Claimant experiences
are “potentially life threatening” and Claimant is thus “disabled from returning to
work . . . .” (Id. ¶ 26k.) Employer’s Expert saw Claimant four times following his
injury, at the first visit characterizing Claimant’s laceration as “superficial,” (id. ¶
26p), and at the second visit noting drainage from Claimant’s leg, which Claimant
and Employer’s Expert had some concern about, (id. ¶ 26q). Claimant experienced
9
continued discomfort, but at Claimant’s final visit, Employer’s Expert observed that
Claimant’s laceration “healed nicely and scab formation was strong.” (Id. ¶ 26s.)
Employer’s Expert “does not believe [C]laimant’s autoimmune phenomenon is
related to [C]laimant’s work injury” because the inciting trauma must be severe, and
here “[C]laimant’s trauma was mild in nature.” (Id. ¶ 26t.)
After considering the evidence, the WCJ “accepted as most credible and
convincing the testimony of [C]laimant . . . as well as [Claimant’s Expert].” (Id.
¶ 27.) The WCJ attached significant weight to the fact that Claimant’s Expert,
having seen Claimant as far back as 2014, “was clearly in a position to offer credible
testimony that [C]laimant did not have any of the types of problems or symptoms
that [Claimant’s Expert] found [C]laimant to have prior to March 21, 2017.” (Id.
¶ 28.) Unlike Employer’s Expert, Claimant’s Expert examined Claimant and
tracked his symptoms in the months following Claimant’s injury when he began
experiencing swelling. Moreover, the WCJ found credible Claimant’s Expert’s
statement that “something is flaring up, and we have a suspicion and reasonable
certainty that . . . [Claimant’s] issues started shortly after his leg injury and have
never totally resolved . . . .” (Id. (quoting Claimant’s Expert’s Dep. at 21, R.R. at
191a).) The WCJ acknowledged the seemingly inconsistent nature of Dr. Pugliese’s
opinions – in his September 8, 2017 letter he stated there is no way to prove causality
between an infection and the expression of autoimmunity, while in his January 3,
2018 letter he stated that Claimant’s angioedema was caused by the infection
resulting from Claimant’s work-related injury. (Id.) The WCJ concluded:
The challenge by [] [Employer] herein as to the sufficiency of causality
was correctly argued. While there is, of course, no specific evidence of
what substance entered [] [C]laimant’s system resultant from having a
laceration on his left lower leg with a piece of metal at a landfill, this
Judge thinks [] [C]laimant’s [Expert], . . . and ultimately Dr. Pugliese
10
eventually within his January 3, 2018 report[,] gave consideration to
the same and were still able to unequivocally opine that [C]laimant
developed severe angioedema that was related to the infection he got at
work . . . .
(Id.)
The WCJ “rejected as not credible” Employer’s Expert’s opinions. (Id. ¶ 27.)
In particular, the WCJ found Employer’s Expert’s opinion that Claimant’s injury
was not significant enough to cause an autoimmune response unsupported by the
record because Employer’s Expert “has nothing to identify or establish the
precipitating agent or trauma at a landfill that entered [] [C]laimant’s system through
a piece of metal.” (Id.) The WCJ noted that Employer’s Expert examined Claimant
on only four occasions over a period of less than two weeks and, though Employer’s
Expert reviewed Claimant’s medical records prior to his deposition, a full year had
elapsed since Employer’s Expert saw Claimant, during which time Claimant had
many treatments. It was disingenuous, according to the WCJ, for Employer’s Expert
to state, based upon reviewing Claimant’s treatment records between April 3, 2017,
and his deposition on May 3, 2018, that no one had a “firm grasp on establishing a
working diagnosis for [] [C]laimant.” (Id. ¶ 28.)
Based on his credibility determinations and factual findings, the WCJ
concluded that Claimant had met his burden of proving a causal connection between
the March 21, 2017 work incident, a laceration that became infected resulting in
angioedema, which caused his ongoing disability. (WCJ Decision, Conclusion of
Law ¶ 2.) Therefore, the WCJ granted the Claim Petition. Employer appealed to
the Board.
11
E. Board Opinion
In its appeal, Employer argued the WCJ’s Decision was not supported by
substantial evidence and was based on equivocal opinions. Employer maintained in
its appeal that Claimant’s burden of proof on causation was assumed, shifting the
burden on Employer to disprove causation. The WCJ also erred, according to
Employer, by granting Claimant ongoing disability due to the “implied theory” of
“possible recurrence.” (Employer’s Appeal, R.R. at 50a.)
The Board affirmed the WCJ’s Decision. The Board held that the WCJ did
not err by crediting Claimant’s Expert’s opinions over the contrary opinions of
Employer’s Expert and that Claimant was able to meet his burden of proof based on
the testimony of Claimant’s Expert and Dr. Pugliese’s 2018 note, which “tied
Claimant’s development of angioedema to his infection from the work incident.”
(Board’s Opinion at 3, 5.) According to the Board, “the substantial, competent
evidence of record supports the fact Claimant sustained a work-related injury that
resulted in a disability.” (Id. at 6.) Moreover, the Board held that Claimant’s
Expert’s testimony was not equivocal, and the WCJ did not err in relying upon it
because, while Employer “ma[de] arguments taking various parts of [Claimant’s
Expert’s] testimony out of context, review of it as a whole clearly shows [Claimant’s
Expert’s] unequivocal opinion that Claimant’s angioedema was caused by his work-
related injury.” (Id. at 7.) Employer now petitions this Court for review.6
6
This Court’s “review is limited to determining whether constitutional rights were violated,
whether the adjudication is in accordance with the law[,] or whether necessary findings of fact are
supported by substantial evidence.” City of Philadelphia v. Workers’ Comp. Appeal Bd.
(Sherlock), 934 A.2d 156, 159 n.5 (Pa. Cmwlth. 2007).
12
II. Appeal to this Court
Employer raises three issues on appeal. Employer contends that the WCJ’s
finding that Claimant’s laceration became infected is not supported by substantial
evidence. Employer also argues that Claimant’s Expert’s opinion that the infected
laceration caused Claimant’s angioedema is equivocal and thus incompetent.
Employer last maintains that the Board erred by affirming the WCJ’s Decision
granting ongoing disability benefits under the premise of “possible recurrence.”
(Employer’s Brief (Br.) at 32.)
This being a claim petition proceeding, Claimant bears the burden of
establishing all of the elements necessary to support an award of workers’
compensation benefits, including the existence of an injury and disability, and a
causal relationship between the disability and the work incident. Giant Eagle, Inc.
v. Workers’ Comp. Appeal Bd. (Thomas), 725 A.2d 873, 876 (Pa. Cmwlth. 1999).
Disability is the loss of earnings or earning power that is caused by a work-related
injury. Sch. Dist. of Phila. v. Workers’ Comp. Appeal Bd. (Lanier), 727 A.2d 1171,
1172 (Pa. Cmwlth. 1999). Where the causal relationship between the work incident
and the injury is not obvious, unequivocal medical evidence is necessary to establish
that relationship. Roundtree v. Workers’ Comp. Appeal Bd. (City of Philadelphia),
116 A.3d 140, 145 (Pa. Cmwlth. 2015) (citations omitted). We now address
Employer’s arguments as to why Claimant did not meet his burden of proof.
A. Substantial Evidence
1. Parties’ Arguments
Employer argues that the Board improperly credited Claimant’s Expert’s
opinion that Claimant’s laceration became infected because the opinion relied on
13
“insufficient evidence.” (Employer’s Br. at 27.) Employer focuses on the following
exchange from Claimant’s Expert’s deposition:
Q. As a result of your treatment of [Claimant], your understanding
of his injury, also the review of [Employer’s Expert’s] records,
and, by the way, the review of th[e] photograph [showing
Claimant’s laceration],[] do you have an opinion within a
reasonable degree of medical certainty as to whether or not the
injury which caused the laceration also resulted in an infection?
A. It’s my opinion that that injury did relate, did cause an infection
to [Claimant].
(Id. at 23-24 (quoting Claimant’s Expert’s Dep. at 22, R.R. at 192a) (footnote
omitted).) According to Employer, this exchange illustrates that Claimant’s Expert’s
opinion was based on: (1) Claimant’s “lay opinion that his leg became infected[;]”
(2) Claimant’s Expert’s treatment of Claimant; (3) Claimant’s Expert’s review of
Employer’s Expert’s records; and (4) Claimant’s Expert’s review of a photograph
showing Claimant’s laceration. (Id. at 22-26.)
Employer argues that an opinion regarding the presence of an infection may
only be given by an expert witness, and because Claimant’s Expert relied on
Claimant’s “lay opinion” as to the issue of infection, the WCJ should not have
credited Claimant’s Expert’s opinion that Claimant’s leg was infected. (Id. at 22-
23.) Moreover, Employer submits that, to the extent Claimant’s Expert’s opinion
was based on his treatment of Claimant, the opinion should not be credited because
Claimant’s Expert did not treat Claimant until three months after the work-related
injury, and, by that time, the laceration had healed. (Id. at 24.) And, according to
Employer, Claimant’s Expert could not have formed his opinion by reviewing
Employer’s Expert’s records “because those records flatly refute the existence of an
14
infection.” (Id.) Further, Claimant’s Expert’s testimony regarding the photograph
of Claimant’s laceration is unclear:
Q. And, Doctor, upon the review of that photograph, does that sort
of buttress your opinion regarding the severity of the laceration
and/or infection?
A. Yes, it does.
(Id. at 26 (quoting Claimant’s Expert’s Dep. at 11-12, R.R. at 181a-82a).) According
to Employer, Claimant’s Expert’s answer was unclear – to which question was his
answer addressed?
In summary, Employer claims that the “only evidence upon which the [WCJ]
credited Claimant’s Expert’s opinion that [Claimant’s] laceration became infected
was [Claimant’s] self-serving lay opinion that he had an infection and the affirmative
response of [Claimant’s Expert] to a compound, unclear question.” (Id. at 26-27.)
That evidence, Employer contends, does not “rise up to the threshold of being
substantial evidence.” (Id. at 27.)
Claimant responds that the WCJ’s finding that Claimant’s leg wound became
infected is supported by substantial evidence. The finding was based on Claimant’s
Expert’s opinion, and “it was the WCJ’s prerogative to credit [Claimant’s Expert’s]
opinion over that of [Employer’s Expert’s], which [the WCJ] did.” (Claimant’s Br.
at 15.) According to Claimant, “a reasonable mind would find this evidence
([Claimant’s Expert’s] opinion as to causality and ongoing disability) adequate to
support the WCJ’s findings and conclusions . . . .” (Id.)7
7
Claimant argues that Employer waived its argument that the WCJ did not issue a
“reasoned decision.” (Claimant’s Br. at 9.) However, nowhere in Employer’s brief is such an
argument advanced. Accordingly, we need not consider Claimant’s waiver argument. In addition,
Claimant spends considerable time in his brief defending the WCJ’s credibility determinations.
However, in its reply brief, Employer is clear that it is not contesting those determinations. “The
15
2. Analysis
In reviewing a substantial evidence8 challenge, we “consider the evidence as
a whole, view the evidence in the light most favorable to the party [that] prevailed
before the WCJ, and draw all reasonable inferences which are deducible from the
evidence in” that party’s favor. Frog, Switch & Mfg. Co. v. Workers’ Comp. Appeal
Bd. (Johnson), 106 A.3d 202, 206 (Pa. Cmwlth. 2014) (quotation omitted).
“[W]here both parties present evidence, it does not matter that there is evidence in
the record [that] supports a” contrary finding; the only question is whether there is
evidence that supports the findings that were made. McCabe v. Workers’ Comp.
Appeal Bd. (Dep’t of Revenue), 806 A.2d 512, 515 (Pa. Cmwlth. 2002). “The WCJ
is the ultimate fact finder and has complete authority for making all credibility” and
evidentiary weight determinations. Rife v. Workers’ Comp. Appeal Bd. (Whitetail
Ski Co.), 812 A.2d 750, 755 (Pa. Cmwlth. 2002). It is well-settled that a “WCJ may
reject the testimony of any witness in whole or in part, even if that testimony is
uncontradicted.” Hoffmaster v. Workers’ Comp. Appeal Bd. (Senco Prods., Inc.),
721 A.2d 1152, 1156 (Pa. Cmwlth. 1998).
Although Employer argues there is insufficient evidence to support the WCJ’s
finding that Claimant’s laceration became infected, we disagree. Claimant’s Expert
opined that Claimant’s laceration became infected based on: (1) Claimant’s report
about his work-related injury and subsequent infection; (2) Employer’s Expert’s use
of dual antibiotic therapy to treat Claimant; and (3) a photograph showing
[WCJ’s] credibility determinations are not a question before this Court, and as a result, should not
be considered in deciding the instant matter.” (Employer’s Reply Br. at 1.) Accordingly, we need
not evaluate the WCJ’s credibility determinations.
8
“Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” City of Philadelphia v. Workers’ Comp. Appeal Bd. (Kriebel),
29 A.3d 762, 769 (Pa. 2011).
16
Claimant’s laceration. Employer contends that this evidence is either insufficient to
support that opinion or flatly refutes that opinion and, therefore, the WCJ’s finding
is unsupported.
Employer first argues that an opinion regarding the presence of an infection
may only be given by an expert witness, and because Claimant’s Expert relied on
Claimant’s “lay opinion” as to the issue of infection, the WCJ should not have
credited Claimant’s Expert’s opinion that Claimant’s leg was infected. (Employer’s
Br. at 22-23.) Contrary to Employer’s argument, it was not necessary for Claimant
to be a medical expert to report to Claimant’s Expert that his work-related laceration
became infected, and it was not improper for Claimant’s Expert to have relied on
Claimant’s report in rendering his ultimate opinion. Claimant’s Expert’s medical
opinion was based on multiple factors, including Claimant’s factual report that he
had “pus [] flowing out of his leg for a day or two [after the injury], . . . had to be re-
seen [by Employer’s Expert], and . . . was on antibiotics.” (R.R. at 181a.) From this
information, which is corroborated by Employer’s Expert’s testimony, Claimant’s
Expert “gathered [Claimant] had an infection.” (Id.) In addition, Claimant’s
Expert’s review of a photograph showing Claimant’s laceration approximately two
weeks after the incident, (id. at 149a), to which no objection was lodged, buttressed
Claimant’s Expert’s opinion that Claimant’s leg was infected, (id. at 181a-82a.)
Thus, Employer’s focus on “[Claimant’s] subjective lay opinion of infection” and
the purported “parameters of th[e] legal standard” applicable thereto, (Employer’s
Br. at 22), misses the mark because Claimant’s Expert did not base his opinion
merely on Claimant’s opinion as to whether he had had an infection.
Moreover, Employer’s argument that “[Claimant’s Expert’s] review of
[Employer’s Expert’s] records could not be the basis for finding that [Claimant] had
17
an infection because those records flatly refute the existence of an infection”
misconstrues the evidence. (Id. at 24.) While Employer points out language in
Employer’s Expert’s records tending to suggest an infection was not present, (id. at
25), there is also language indicating the contrary, including Employer’s Expert’s
prescribing of Augmentin and Doxycycline Monohydrate, (R.R. at 272a-73a),
noting that, after Claimant’s second visit on March 23, 2017, there was no
“significant evidence of an infective process” and no “outward signs of significant
infection,” (id. at 275a-76a) (emphasis added)), and that, as of April 3, 2017, “the
infection is resolved and [Claimant] does not require any further treatment,” (id. at
280a (emphasis added)). Thus, when considered as a whole, Employer’s Expert’s
records do not “flatly refute the existence of an infection,” (Employer’s Br. at 24),
but rather are, at most, ambiguous on that issue, and, as the ultimate fact finder, the
WCJ had “complete authority for making all credibility” and evidentiary weight
determinations. Rife, 812 A.2d at 755.
Further, Employer’s challenge to Claimant’s Expert’s testimony regarding the
photograph showing Claimant’s laceration is not persuasive. At his deposition,
Claimant’s Expert was asked to review Claimant’s exhibit 3, the photograph
Claimant took of the laceration two weeks after the work incident and, having done
so, testified:
Q. And, Doctor, do you know whether or not he had an infectious
process going on or can you tell that by your exam?
A. Subjectively what he had described to me . . . is that he was
injured at work. He told me that he presented to the work doctor, it was
cleaned out, and he indicated pus was flowing out of his leg for a day
or two later. He had to be re-seen, and [] he was on antibiotics. From
that I gathered he had an infection.
18
Q. And, Doctor, upon review of that photograph, does that sort of
buttress your opinion regarding the severity of the laceration and/or
infection?
A. Yes, it does.
Q. And in review [of Employer’s Expert’s] note, do you have any
cause to believe that [Claimant] did not have an infection?
A. No, I do not. I’m sorry. I do believe he did have an infection
based on [Employer’s Expert’s] description of the laceration and the
fact that [Employer’s Expert] started [Claimant] on dual antibiotic
therapy or Augmentin and Doxycyline.
(R.R. at 180a-82a.) Employer isolates the part of this exchange wherein Claimant’s
Expert is asked whether the photograph “buttress[es] [his] opinion regarding the
severity of the laceration and/or infection,” and Claimant’s Expert answers “[y]es, it
does.” (Employer’s Br. at 26.) In so doing, Employer argues that Claimant’s Expert
“did not provide any explanation; he merely gave an affirmative response to an
unclear compound question . . . .” (Id.) However, when this passage is considered
in context with the questioning and testimony that occurred before and after it, which
was concerned solely with whether an infection was present, it was reasonable for
the WCJ to infer that Claimant’s Expert’s answer addressed the infection portion of
the question.
Accordingly, because Claimant’s Expert’s opinion was not based on an
improper lay opinion and was otherwise supported, the WCJ’s crediting of that
opinion was not “arbitrary and capricious or so fundamentally dependent on a
misapprehension of material facts, or so otherwise flawed, as to render it irrational.”
Casne v. Workers’ Comp. Appeal Bd. (STAT Couriers, Inc.), 962 A.2d 14, 19 (Pa.
Cmwlth. 2008). And, because “a reasonable mind might accept” Claimant’s
Expert’s opinion “as adequate” to support the finding that Claimant’s laceration
19
became infected, the challenged finding of fact is supported by substantial evidence.
City of Philadelphia v. Workers’ Comp. Appeal Bd. (Kriebel), 29 A.3d 762, 769 (Pa.
2011).
B. Equivocation
1. Parties’ Arguments
Employer contends that Claimant has not met his burden of proving a causal
connection between his disabling injury – angioedema – and his work-related
laceration because the expert testimony Claimant offered to establish that connection
is equivocal. Employer posits four reasons why Claimant’s Expert’s testimony is
equivocal.
First, in response to the question of whether an infection is an accepted cause
of angioedema, Claimant’s Expert stated that “[i]t could be one, yes.” (Employer’s
Br. at 28 (quoting R.R. at 209a).) This testimony, according to Employer, is
equivocal as a matter of law because “[s]uch [an] expert opinion that it is conceivable
that a substance could cause or may have caused an effect does not constitute
unequivocal medical testimony and is not competent evidence to support a finding
that any such effect occurred.” (Id. (quoting BJ’s Wholesale Club v. Workers’ Comp.
Appeal Bd. (Pearson), 43 A.3d 559, 565 (Pa. Cmwlth. 2012) (emphasis in
original)).)
Second, Claimant’s Expert relied on the medical opinion of Dr. Pugliese, who
expressed “absolutely equivocal opinions,” (Employer’s Br. at 30), by opining in
one note that “there’s no way to prove causality” between an infection and the
expression of autoimmunity, (id. at 29 (quoting R.R. at 208a-09a)), and, in a second,
later note, stating that “[Claimant] has developed severe angioedema that is related
to an infection that he got at work[,]” (id. at 29-30 (quoting R.R. at 212a)). Thus,
20
argues Employer, “any opinion provided by Dr. Pugliese that [Claimant’s Expert]
would have relied upon would have been equivocal as a matter of law.” (Id. at 30.)
Third, Claimant’s Expert’s opinion regarding causation is equivocal.
Employer cites Claimant’s Expert testimony as follows:
Q. Okay. And at that point in time were you able to come to a
medical diagnosis regarding what was going on with [Claimant]?
A. We have a working diagnosis of angioedema with no causative
bacteria or etiology . . . .
(Id. at 30 (quoting Claimant’s Expert’s Dep. at 21, R.R. at 191a) (emphasis in
original).) Employer argues that “[t]he fact that [Claimant’s Expert] later opines to
within a reasonable degree of medical certainty that an infection had caused the
angioedema, totally contradicts [t]his statement.” (Id.)
Last, Claimant’s Expert’s testimony is equivocal because, Employer argues,
“it is based on nothing more than the proximity of the injury and onset of
angioedema.” (Id. at 31.) In support of this assertion, Employer cites the following
testimony:
Q. And, Doctor, based on the history, the medical background as
you understood [Claimant’s] condition to be prior to March 21, 2017,
up until today’s date, whether or not there’s a connection between his
injury, the laceration, infection, and the angioedema?
A. I believe there is a connection between the infection and the
angioedema, as it never was present before, and it surfaced fairly soon
after his injury.
(Id. (quoting R.R. at 193a).) Employer contends that “[t]estimony is equivocal when
the medical expert merely assumes that an injury is work-related based upon
temporal proximity to a work event.” (Id. at 31-32 (quoting Moyer v. Workers’
21
Comp. Appeal Bd. (Pocono Mountain Sch. Dist.), 976 A.2d 597, 599 (Pa. Cmwlth.
2009)) (alteration in original).)
Claimant responds that Claimant’s Expert testified unequivocally that
Claimant’s work-related laceration became infected and that infection caused
Claimant’s disabling injury – angioedema. Claimant contends that ample caselaw
supports this position because Claimant’s Expert testified that it was his
“professional opinion within a reasonable degree of medical certainty that the work-
related laceration that Claimant sustained . . . resulted in an infection and, later,
angioedema . . . .” (Claimant’s Br. at 4.) Acknowledging that Claimant’s Expert
explained that infection is not the only cause of angioedema, Claimant points out
that Claimant’s Expert nonetheless “opined within a reasonable degree of medical
certainty that it was his professional opinion that the angioedema Claimant was
experiencing was causally related to [his] infection . . . .” (Id. at 6.)
2. Analysis
When unequivocal medical evidence is necessary, “the medical witness must
testify, not that the injury or condition might have or possibly came from the
assigned cause, but that in [the witness’s] professional opinion the result in question
did come from the assigned cause.” Berks Cnty. Intermediate Unit v. Workmen’s
Comp. Appeal Bd. (Rucker), 631 A.2d 801, 804 (Pa. Cmwlth. 1993). In determining
whether testimony is equivocal, “we examine the testimony of a witness as a whole
and do not take words or phrases out of context.” Bemis v. Workers’ Comp. Appeal
Bd. (Perkiomen Grille Corp.), 35 A.3d 69, 72 (Pa. Cmwlth. 2011). Medical
evidence that is less than positive or is based on possibilities is equivocal and is not
legally competent evidence that establishes the necessary causal relationship. Potere
v. Workers’ Comp. Appeal Bd. (Kemcorp), 21 A.3d 684, 690-91 (Pa. Cmwlth. 2011).
22
“However, the law does not require every utterance which escapes the lips of a
medical witness on a medical subject to be certain, positive, and without reservation
or exception.” Bemis, 35 A.3d at 72. A medical opinion is not considered equivocal
simply because the witness “use[s] [] words such as ‘probably,’ ‘likely,’ and
‘somewhat’ . . . so long as the testimony, read in its entirety, is unequivocal and the
witness does not recant the opinion or belief first expressed.” Id. “Whether an
expert’s opinion is competent is a question of law subject to plenary review.”
Kriebel, 29 A.3d at 769.
Applying these principles to Claimant’s Expert’s testimony in its entirety, his
testimony that Claimant’s work-related laceration became infected and that this
infection caused Claimant’s angioedema is unequivocal and, therefore, competent to
support the WCJ’s findings. On direct examination, Claimant’s Expert testified as
follows:
Q. As a result of your treatment of [Claimant], your understanding
of his injury, also the review of [Employer’s Expert’s] records, and, by
the way, the review of that photograph [showing the laceration], do you
have an opinion within a reasonable degree of medical certainty as to
whether or not the injury which caused the laceration also resulted in
an infection?
A. It’s my opinion that that injury did relate, did cause an infection
to [Claimant].
Q. And, Doctor, the next opinion based on your treatment and
treatment of referral physicians within your medical group, and your
occasion to review their opinions, and also your occasion to continue
to treat [Claimant], do you have an opinion within a reasonable degree
of medical certainty as to, number one, the diagnosis, which I believe
you already stated, but you can state it again.
A. Angioedema.
23
Q. And, Doctor, based on the history, the medical background as
you understood [Claimant’s] condition to be prior to March 21, 2017,
up until today’s date, whether or not there’s a connection between his
injury, the laceration, infection, and the angioedema?
A. I believe there is a connection between the infection and the
angioedema, as it never was present before, and it surfaced fairly soon
after his injury.
Q. Is that opinion based within a reasonable degree of medical
certainty?
A. Yes, it is.
(R.R. at 192a-93a.) This exchange is a clear expression of “[Claimant’s Expert’s]
professional opinion [that] the result in question[, angioedema,] did come from the
assigned cause,” Berks County Intermediate Unit, 631 A.2d at 804, and it is
sufficient to establish a causal relationship between the injury and the work incident,
Giant Eagle, Inc., 725 A.2d at 876. See also Phila. Coll. of Osteopathic Med. v.
Workmen’s Comp. Appeal Bd. (Lucas), 465 A.2d 132, 135 (Pa. Cmwlth. 1983)
(“[A]s to the facts which a claimant must prove by medical evidence, it is sufficient
that [the claimant’s] medical expert, after providing a foundation, testify that in [the
expert’s] professional opinion or that [the expert] believes or that [the expert] thinks
the facts exist.”).
Employer’s arguments would have us enforce an equivocality standard that
permits no room for expressions of doubt, but that is not the law. “[T]he law does
not require every utterance which escapes the lips of a medical witness on a medical
subject to be certain, positive, and without reservation or exception.” Bemis, 35
A.3d at 72; see also Phila. Coll. of Osteopathic Med., 465 A.2d at 134-35 (“Certainly
it is not the law . . . that every utterance which escapes the lips of a medical witness
on a medical subject, must be certain, positive, and without reservation, exception,
24
or peradventure of a doubt.”). Thus, a medical opinion is not considered equivocal
simply because the witness uses words such as “probably,” “likely,” and
“somewhat,” “so long as the testimony, read in its entirety, is unequivocal and the
witness does not recant the opinion or belief first expressed.” Bemis, 35 A.3d at 72.
For this reason, we reject Employer’s argument, relying on BJ’s Wholesale
Club, that Claimant’s Expert’s statement that an infection “could be” a cause of
angioedema rendered Claimant’s Expert’s entire opinion “equivocal as a matter of
law, even if [Claimant’s Expert] had earlier said the ‘magic words’[] that the
infection led to [Claimant’s] development of angioedema.” (Employer’s Br. at 28
(footnote omitted).) In BJ’s Wholesale Club, we held that an expert’s testimony was
equivocal because it was based entirely on possibilities – the expert’s testimony
regarding causation was replete with words such as “can,” “conceivable,” and
“could.” 43 A.3d at 565-66. Here, in contrast, Claimant’s Expert’s testimony, read
in its entirety, is positive on the issues of whether Claimant’s laceration caused an
infection which in turn led to him developing angioedema, and Claimant’s Expert’s
single expression of mere possibility is insufficient to render his entire opinion
equivocal.
Furthermore, Claimant’s Expert’s medical opinion is not equivocal simply
because he considered the medical opinions of other physicians whose opinions were
arguably inconsistent or differed from his. Employer contends that Dr. Pugliese,
whose opinions Claimant’s Expert relied upon, expressed “absolutely equivocal
opinions,” (Employer’s Br. at 30), as illustrated in Dr. Pugliese’s notes dated
September 18, 2017, and January 3, 2018. However, the seemingly contradictory9
9
It is unclear from the record if something changed Dr. Pugliese’s opinion in the months
between September 2017 and January 2018, particularly given the number of specialists Claimant
had been seeing.
25
nature of Dr. Pugliese’s opinions has no bearing on the equivocality of Claimant’s
Expert’s own testimony regarding causation. Claimant’s Expert did not testify that
he shared the exact same views as Dr. Pugliese along the same timeline that Dr.
Pugliese held them. Instead, Claimant’s Expert testified that, within a reasonable
degree of medical certainty, “there is a connection between the infection and the
angioedema,” (R.R. at 193a), and other causes – hereditary, cold air induced causes,
insect borne, and medication – had been ruled out.
Finally, Employer points out Claimant’s Expert’s own “equivocal” deposition
testimony, which Employer cites in the following manner:
Q. Okay. And at that point in time were you able to come to a
medical diagnosis regarding what was going on with [Claimant]?
A. We have a working diagnosis of angioedema with no causative
bacteria or etiology . . . .
(Employer’s Br. at 30 (quoting R.R. at 191a) (emphasis in original).) Employer
argues that “[t]he fact that [Claimant’s Expert] later opines [] within a reasonable
degree of medical certainty that an infection had caused the angioedema, totally
contradicts his statement.” (Id.) Employer doubles down in its reply brief, arguing
that these “two statements sat next to each other are jaw-droppingly contradictory
and undoubt[edly] 100% equivocal as a matter of law.” (Employer’s Reply Br. at
2.) However, Employer fails to cite the full deposition testimony, in which
Claimant’s Expert expressed his opinion that Claimant has angioedema “with no
causative bacteria or etiology, apparently, according to the immunologist.” (R.R.
at 191a (emphasis added).) In addition, immediately after this answer, Claimant’s
Expert testified:
26
Something is flaring it up, and we have a suspicion and a reasonable
certainty that, from the timeline that I have been taking care of
[Claimant], I believe his issues started shortly after his leg injury, and
have never totally resolved, and have flared-up off and on since that
time.
(Id.) Read in its entirety, this portion of the deposition testimony does not reveal, as
Employer submits, Claimant’s Expert’s opinion that Claimant’s angioedema was not
caused by a bacterial infection. (See Employer’s Reply Br. at 2.) Instead, it shows
Claimant’s Expert’s understanding of the immunologist’s opinion and Claimant’s
Expert’s “reasonable certainty” that Claimant’s autoimmune issues began shortly
after his injury. Whether or not the immunologist believed that a bacterial infection
was the cause of Claimant’s angioedema has no bearing on the equivocality of
Claimant’s Expert’s own testimony regarding causation.
We also reject Employer’s argument, relying on Moyer, that Claimant’s
Expert’s opinion is equivocal because “it is based on nothing more than the
proximity of the injury and onset of angioedema.” (Employer’s Br. at 31.) This
Court in Moyer stated that “[t]estimony is equivocal when the medical expert merely
assumes that an injury is work-related based on temporal proximity to a work
event.” Moyer, 976 A.2d at 599 (emphasis added). However, Claimant’s Expert did
not merely assume on the basis of timing that Claimant’s work-related injury caused
the angioedema. Again, it is important to read Claimant’s Expert’s testimony in
context. Directly preceding the exchange that Employer relies on is the following:
Q. As a result of your treatment of [Claimant], your understanding
of his injury, also the review of [Employer’s Expert’s] records, and, by
the way, the review of that photograph [showing the laceration], do you
have an opinion within a reasonable degree of medical certainty as to
whether or not the injury which caused the laceration also resulted in
an infection?
27
A. It’s my opinion that that injury did relate, did cause an infection
to [Claimant].
Q. And, Doctor, the next opinion based on your treatment and
treatment of referral physicians within your medical group, and your
occasion to review their opinions, and also your occasion to continue
to treat [Claimant], do you have an opinion within a reasonable degree
of medical certainty as to, number one, the diagnosis, which I believe
you already stated, but you can state it again.
A. Angioedema.
(R.R. at 192a-93a.) When this line of questioning is read together with the portions
Employer isolated, it is clear that Claimant’s Expert concluded that Claimant’s
infected laceration caused his angioedema based on Claimant’s Expert’s history of
treating Claimant, his review of Employer’s Expert’s records, a review of a
photograph showing the laceration, his review of the opinions of physicians to which
Claimant was referred, and the timing of the injury and onset of the angioedema.
Accordingly, because viewing Claimant’s Expert’s testimony in its entirety
reveals that his opinions were not based on mere possibilities, the equivocal opinions
of other physicians, or the mere temporal proximity between the work incident and
Claimant developing angioedema, that testimony was not equivocal. Therefore,
Claimant’s Expert’s opinion that, within a reasonable degree of medical certainty,
Claimant’s leg became infected which, in turn, caused Claimant to develop
angioedema, is competent testimony on the issue of causation.
C. WCJ’s Grant of Ongoing Disability Benefits
1. Parties’ Arguments
Employer last contends that the Board erred by affirming the WCJ’s Decision
granting Claimant ongoing disability benefits under the premise of a “possible
recurrence.” (Employer’s Br. at 32.) Employer explains that Claimant’s testimony
28
shows that Claimant’s alleged disability comes and goes and therefore Claimant is
not totally disabled. Employer claims it was error for the WCJ to award total
disability to Claimant because “the mere ‘possibility of a future recurrence [of a
condition] does not constitute a compensable disability.’” (Id. (quoting Swartz v.
Workmen’s Comp. Appeal Bd. (Dutch Pantry Rest.), 543 A.2d 201, 204 (Pa.
Cmwlth. 1988)) (alteration in original).)
Claimant responds that the WCJ credited Claimant’s and Claimant’s Expert’s
testimony regarding Claimant’s ongoing symptoms and the effect those symptoms
had on Claimant’s ability to work, no objections were lodged regarding that
testimony, and Employer’s Expert had no firsthand knowledge of Claimant’s
condition after April 3, 2017. (Claimant’s Br. at 16-17.) According to Claimant,
because the WCJ’s credibility determinations and findings “were based upon the
substantial, competent evidence of record, the Board did not err in affirming the
WCJ’s decision to grant Claimant’s Claim Petition and ongoing total disability
benefits.” (Id. at 17.)
2. Analysis
Claimants may be considered disabled by a work-related injury despite the
resolution of their symptoms “if there is evidence that [the symptoms] are likely to
recur once [they] return[] to work.” Schrader Bellows Pneumatics, Div. of Parker-
Hannifin Corp. v. Workers’ Comp. Appeal Bd. (Earle), 711 A.2d 578, 581 (Pa.
Cmwlth. 1998). Where claimants “establish that they [are] unfit or unable to perform
their duties when they return[ ] to work” by unequivocal medical testimony, ongoing
disability can be established. Id. However, the mere possibility of a future
recurrence is not a compensable injury. Swartz, 543 A.2d at 204. In Swartz, the
claimant argued that she had not recovered from her work-related injury because it
29
could possibly recur in the future. Id. The claimant’s medical expert testified that
the claimant had recovered from her disabling injury, which was caused by exposure
to a chemical solution, but opined that “future exposure to [the] allergic chemicals
could precipitate further exacerbation” of her condition. Id. The Court rejected the
claimant’s argument and held that “[t]he possibility of a future recurrence does not
constitute a compensable disability.” Id.Based on the WCJ’s findings and credibility determinations, we agree with
Claimant that there was no error in granting ongoing benefits. The WCJ “accepted
as most credible and convincing the testimony of [C]laimant . . . as well as
[Claimant’s Expert].” (FOF ¶ 27.) In response to the question of whether Claimant
is “disabled for driving tractor-trailer,” Claimant’s Expert’s responded:
I would consider him disabled, because when he has these flare-ups,
they are potentially life-threatening, as the tongue can swell, he can get
short of breath, his hands can swell substantially to the point where it
does inhibit safe control of steering wheels and reactions times and
things like that, in my opinion.
(R.R. at 194a.) Given this testimony, the WCJ found Claimant disabled “from
returning to work driving a tractor trailer beginning August 31, 2017[,] and
continuing thereafter.” (FOF ¶ 27.) Here, in contrast to the situation in Swartz, the
WCJ did not find that Claimant had recovered from his angioedema and merely
could, upon some triggering event, experience future symptoms. Rather, the WCJ
found that Claimant’s symptoms are ongoing and interfere with his ability to drive,
and sometimes they are severe enough to be life-threatening. For this reason,
Employer’s reliance on Swartz is misplaced.
30
III. Conclusion
For the foregoing reasons, Claimant satisfied his burden of proving that he
sustained a compensable work injury which has resulted in ongoing disability, and,
therefore, there was no error in the Board upholding the WCJ’s Decision granting
the Claim Petition. Accordingly, we affirm.
_____________________________________
RENÉE COHN JUBELIRER, Judge
31
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Solid Waste Services, Inc., d/b/a :
J.P. Mascaro & Sons, :
Petitioner :
:
v. : No. 441 C.D. 2020
:
Workers’ Compensation Appeal :
Board (Boos), :
Respondent :
ORDER
NOW, March 31, 2021, the Order of the Workers’ Compensation Appeal
Board, entered in the above-captioned matter, is AFFIRMED.
_____________________________________
RENÉE COHN JUBELIRER, Judge