Kimberly Clark Corp. v. Workers' Compensation Appeal Board

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kimberly Clark Corporation, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Bromley), : No. 656 C.D. 2016
Respondent : Submitted: October 14, 2016
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION BY
JUDGE COVEY FILED: May 4, 2017
Kimberly Clark Corporation (Employer) petitions this Court for review
of the Workers’ Compensation (WC) Appeal Board’s (Board) March 30, 2016 order
affirming the Workers’ Compensation Judge’s (WCJ) decision granting Sharon R.
Bromley’s (Claimant) Fatal Claim Petition for Compensation by Dependents of
Deceased Employees (Fatal Claim Petition). Essentially, there are two issues before
this Court: (1) whether Claimant met her burden under Section 301(c)(1) of the WC
Act (Act)1 of proving that her deceased husband Donald J. Bromley’s (Bromley)
injury and/or death were caused by exposure to chemicals in Employer’s workplace
and, (2) whether the WCJ issued a reasoned decision.2 After review, we affirm.
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411(1).
2
Employer presented six issues for this Court’s review: (1) whether Claimant met her
burden under Section 301(c)(1) of the Act of proving that Bromley’s injury and/or death were
caused by exposure to chemicals in Employer’s workplace; (2) whether Claimant sustained her
factual burden of proving that Bromley was exposed to various workplace chemicals, and that such
exposure rose to the level of a hazard; (3) whether Claimant sustained her burden under Section
301(c)(1) of the Act of proving medical causation between Bromley’s workplace exposure and his
injury and/or death; (4) whether the WCJ erred by overruling Employer’s objection during Barry L.
Singer, M.D.’s June 25, 2010 deposition; (5) whether Claimant met her burden under Section
301(c)(1) of the Act of proving Bromley’s exposure within 300 weeks of his injury and/or death;
Employer operates a paper manufacturing business which produces
napkins, toilet tissue and paper towels. See Reproduced Record (R.R.) at 12a-13a.
Bromley was employed as one of Employer’s Chester plant electricians from 1973 to
2005, during which time he was exposed to various chemicals used in Employer’s
production. In the summer of 2005, Bromley was diagnosed with metastatic bladder
cancer which caused his death on June 23, 2006.
On August 4, 2008, Claimant filed a Claim Petition for WC (Claim
Petition), seeking lost wages from August 11, 2005 through June 23, 2006, plus
medical benefits and counsel fees arising from Bromley’s work injury, which was
described as bladder cancer, multiple pulmonary metastatis and asbestos-related
pleural plaques. See Certified Record (C.R.) Item 4. On that same date, Claimant
filed a Fatal Claim Petition for Compensation By Dependents For Death Resulting
From Occupational Disease (Fatal OD Claim Petition) under Section 301(c)(2) of the
Act, alleging that Bromley’s death was due to an occupational disease - metastatic
bladder cancer - caused by exposure to carcinogens during the course and scope of
his employment with Employer. See C.R. Item 1. Claimant also filed the Fatal
Claim Petition pursuant to Section 301(c)(1) of the Act seeking widow’s benefits3
and, (6) whether the WCJ issued a reasoned decision. Because the first five issues relate to whether
Claimant met her burden under Section 301(c)(1) of the WC Act, they are all subsumed thereunder.
3
Under Section 307(2) of the Act, 77 P.S. § 561(2), widows are entitled to 51% of the
decedent’s wages, not to exceed the statewide average weekly wage. Claimant’s general eligibility
is undisputed. The WCJ found:
[Claimant], age 62 as of her testimony, is clearly [eli]gible to receive
benefits as a widow; no dispute exists as to her status. Here, there
was a forty-one (41)[-]year marriage (date of marriage, April 20,
1965) during which [Claimant and Bromley] lived together; they were
living together as of the date of [Bromley’s] death. [Claimant] is the
sole dependent entitled to benefits. Three children were born of the
marriage, but all are above the usual entitlement age, and none are
disabled; none were dependent on [Bromley] for support.
WCJ Dec. at 1.
2
due to Claimant’s work-related death. See C.R. Item 10. In all of the Petitions,
Claimant averred that Bromley’s date of injury/last date of employment was August
11, 2005. Employer denied the allegations in each of Claimant’s Petitions and raised
various affirmative defenses. See C.R. Items 3, 6, 12.
WCJ hearings were held on September 17, 2008, January 7, June 1 and
September 16, 2009, and January 20, April 19, July 26 and October 25, 2010. By
February 4, 2011 decision, the WCJ granted the Fatal Claim Petition and ordered
Employer to pay Claimant benefits based upon Bromley’s $1,738.08 average weekly
wage, commencing on June 23, 2006, the date of Bromley’s death (Original
Decision). The WCJ also directed Employer to pay 10% interest on all deferred WC
payments, $3,000.00 toward Bromley’s funeral expenses, plus litigation costs and
attorney’s fees. Employer appealed to the Board which, on August 9, 2013, held that,
although the WCJ found that Bromley’s death was due to work-related exposure to
carcinogens, since the WCJ did not state whether the conclusions were made pursuant
to Section 301(c)(1) or 301(c)(2) of the Act, the Board could not determine whether
substantial evidence supported the WCJ’s award. Accordingly, the Board remanded
the matter for the WCJ to specify whether he had awarded the benefits pursuant to
Section 301(c)(1) of the Act or under Section 301(c)(2) of the Act.4
On remand, the WCJ conducted additional hearings on March 7 and
September 10, 2014. On September 16, 2014, the WCJ reaffirmed his Original
Decision and added that “Claimant has met the burden of proof required under
Section 30[1](c)(1) of the Act, with benefits to [Claimant] being appropriately
4
Under Section 301(c)(2) of the Act, claimants who establish that certain occupational
diseases enumerated in Section 108 of the Act, added by Section 1 of the Act of October 17, 1972,
P.L. 930, 77 P.S. § 27.1, are entitled to a rebuttable presumption that the diseases are work-related
or “arose out of and in the course of [] employment[.]” Section 301(e) of the Act, 77 P.S. § 413.
Section 301(c)(1) of the Act does not allow for a similar presumption. See Pawlosky v. Workmen’s
Comp. Appeal Bd., 525 A.2d 1204 (Pa. 1987).
3
granted as entered in the [O]riginal Decision.” WCJ Remand Dec. at 3 (emphasis
added). The WCJ specifically held: “The instant matter meets the provisions of
Section 301(c)(1) [of the Act] as a repetitive/cumulative[-]type injury by way of
exposure to carcinogenic agents in the workplace over an extended period of
time resulting in bladder cancer and death[.]” WCJ Remand Dec. at 3 (emphasis
added). Employer appealed from the WCJ’s remand decision to the Board. On
March 30, 2016, the Board affirmed the WCJ’s remand decision. Employer appealed
to this Court.5
Initially, Section 301(c)(1) of the Act provides, in relevant part:
The terms ‘injury’ and ‘personal injury,’ as used in this
[A]ct, shall be construed to mean an injury to an employe,
regardless of his previous physical condition, . . . arising in
the course of his employment and related thereto, and
such disease or infection as naturally results from the
injury or is aggravated, reactivated or accelerated by the
injury; and wherever death is mentioned as a cause for
compensation under this [A]ct, it shall mean only death
resulting from such injury . . . , and occurring within
three hundred weeks after the injury.
77 P.S. § 411(1) (emphasis added). Accordingly, “[i]n a fatal claim proceeding, the
surviving family member bears the burden of proving that the decedent sustained an
injury in the course and scope of employment and that the decedent’s death was
causally related to the work-related injury.” J.D. Landscaping v. Workers’ Comp.
Appeal Bd. (Heffernan), 31 A.3d 1247, 1252 (Pa. Cmwlth. 2011).
“[T]he word ‘injury’ . . . is given no express statutory meaning” in
Section 301(c)(1) of the Act, and “does no more than state that an injury is an injury.”
5
“On review[,] this Court must determine whether constitutional rights were violated, errors
of law were committed, or necessary findings of fact were supported by substantial competent
evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d 598, 601 n.6
(Pa. Cmwlth. 2014).
Employer filed with this Court a request for supersedeas pending the appeal. By July 1,
2016 memorandum and order, this Court denied the supersedeas request.
4
Pawlosky v. Workmen’s Comp. Appeal Bd., 525 A.2d 1204, 1209 (Pa. 1987).
However, the term “has been broadly defined to encompass all work-related harm
including ‘any hurtful or damaging effect which may be suffered by anyone.’”
Jackson Twp. Volunteer Fire Co. v. Workmen’s Comp. Appeal Bd. (Wallet), 594 A.2d
826, 828 (Pa. Cmwlth. 1991) (emphasis added) (quoting Pawlosky, 525 A.2d at
1209). Thus, our courts have declared that an “injury” under Section 301(c)(1) of the
Act need not arise from an accident or specific physical bodily trauma, but can
include a disease not statutorily defined as an “occupational disease” under Section
301(c)(2) of the Act or The Pennsylvania Occupational Disease Act (the ODA),6 that
is caused by exposure to a job-related hazard. See Pawlosky; see also McCullough v.
Xerox Corp., 581 A.2d 961 (Pa. Super. 1990); Standard PA Practice 2d (2011) §§
167:220, 167:241. Specifically, “[b]ased on [the] Pawlosky[] [Court’s] broad
interpretation of ‘injury’ in [S]ection 301(c)(1) [of the Act], it is now well settled
that a claimant can establish a right to benefits for an ‘injury’ in the nature of a
work-related disease[,]” i.e., a disease as an injury claim.7 Brockway Pressed
6
Act of June 21, 1939, P.L.566, as amended, 77 P.S. §§ 1201-1603.
7
Accordingly, there is no support for Employer’s argument that bladder cancer “is not an
alleged injury” and “is not a condition that falls within the statutory meaning of” Section 301(c)(1)
of the Act, or that “it can only be classified as an occupational disease under [the ODA.].”
Employer Br. at 32.
When the ODA was enacted in 1939, occupational diseases were listed therein that were not
covered by the Act. However, in 1972, Sections 108 and 301(c) of the Act were amended to
include occupational diseases as compensable injuries. The amendments covered only disabilities
due to exposures after June 30, 1973, whereas the ODA remained in force for older claims. See
David B. Torrey & Andrew E. Greenberg, Workers’ Compensation: Law & Practice §§ 5:1, 5:2,
5:10 (3rd ed. 2008).
The [ODA] remains unrepealed. Obviously, one of the main reasons
for not repealing it was to make clear that the [ODA] was to remain in
force with respect to occupational diseases contracted prior to the
effective date of the 1972 disease provisions of the [Act]. It is worth
noting that the diseases covered by the [ODA] are essentially similar
to those provided for in [S]ection 108 of the [Act].
Pawlosky, 525 A.2d at 1210 n.9.
5
Metals v. Workers’ Comp. Appeal Bd. (Holben), 948 A.2d 232, 234 (Pa. Cmwlth.
2008) (emphasis added).
I. Whether Claimant met her burden under Section 301(c)(1) of the Act.
Employer argues that Claimant failed to meet her burden under Section
301(c)(1) of the Act of proving that Bromley’s death was caused by his exposure to
chemicals in the workplace within the 300 weeks preceding his death. We disagree.
In support of her Fatal Claim Petition, Claimant testified that, with the
exception of a broken leg in 1964, hernia surgery in 1993 and a diabetes diagnosis
approximately three years before his death,8 see R.R. at 400a, Bromley was “very
healthy” up to the time that he noticed blood in his urine in May or June 2005. R.R.
at 384a. Claimant recounted that, because Bromley’s physician thought he had a
Moreover, our Superior Court specifically stated that,
failure to meet the definition of occupational disease [under Section
301(c)(2) of the Act] does not exclude a claimant from compensation
under the [WC] system. See generally Pawlosky. . . . Such
definitions are merely procedural means of creating a non-
conclusive presumption that an injury was work-related. Failure to
establish the presumption [under Section 301(c)(2) of the Act] is not
dispositive; the claimant may still go forward in making out a case
for [WC benefits under Section 301(c)(1) of the Act] absent the
presumption.
McCullough v. Xerox Corp., 581 A.2d 961, 964 (Pa. Super. 1990) (emphasis added). Thus,
disability due to an occupational disease that is not specifically listed in the ODA or Section 108 of
the Act, 77 P.S. § 27.1, as incorporated by Section 301(c)(2) of the Act, may still be compensable,
as long as the requisite causation is established. Pawlosky.
Finally, Section 444 of the Act, added by Section 6 of the Act of October 17, 1972, P.L. 930,
provides, in pertinent part, that “any person may pursue, in the alternative, a claim for compensation
under this [A]ct and a claim for compensation under [the ODA].” 77 P.S. § 1000. Accordingly,
“[WC b]enefits for disabilities due to occupational diseases may be claimed under either [the ODA
or the Act,] or under both in the alternative.” Oscar Mayer & Co. v. Workmen’s Comp. Appeal Bd.,
425 A.2d 879, 879 (Pa. Cmwlth. 1981).
8
Claimant articulated that Bromley’s diabetes was controlled with diet and medication
(Glucophage). See R.R. at 384a, 399a, 405a.
6
prostate infection, Bromley was prescribed a six-week course of Cipro. See R.R. at
407a. Bromley underwent diagnostic testing of his bladder in June 2005, and surgery
to remove a tumor on August 11, 2005. See R.R. at 403a-404a.
Claimant explained that Bromley served his four-year electrician
apprenticeship at Sun Ship Building and Dry Dock (Sun Ship) in the 1960s. He
worked for Scott Paper’s foam division until approximately 1971. Thereafter, he was
employed at DuPont for approximately six months. In 1973, he returned to Scott
Paper at Employer’s Chester facility. See R.R. at 362a-364a.
Claimant related that Bromley worked at Employer’s plant until August
2005, but returned to work for Employer for an additional 40 hours in February 2006
in order to retire with seven paid vacation weeks. See R.R. at 400a-401a. She
testified that, although she did not have first-hand knowledge of Bromley’s working
conditions, she observed that the entire time he worked for Employer, “[h]is clothes
would have little holes in them,” and “he would have die [sic] on his hands when he
came home.” R.R. at 369a. She also recalled that there regularly was paper dust and
dye on his work clothes, the latter of which she could never get out. See R.R. at
370a-373a. Claimant could not specify how often Bromley came home with dye on
his hands or clothes, only that “[he] went to work, came home and sometimes he had
die [sic] on it and sometimes he did not,” but it happened frequently enough that she
just expected it. R.R. at 372a.
Further, Claimant described that Bromley smoked for approximately one
year, but he quit in 1965 when Claimant became pregnant, and he never smoked
thereafter. See R.R. at 392a-395a. She reported that although Bromley’s father
smoked at home while Bromley was growing up, Bromley’s mother required his
father to smoke outside. See R.R. at 391a, 395a-397a.
Robert Bonkowski (Bonkowski) testified that he has been an electrician
for Employer since 1971. See R.R. at 5a, 32a. He met Bromley during their
7
electrician apprenticeships at Sun Ship in the 1960s. See R.R at 46a. He related that
Bromley started the four-year program before he did, but they overlapped three of
those years, and they worked together at Employer’s facility from 1973 until Bromley
retired. See R.R. at 46a.
Bonkowski described that Employer’s facility consists of six major
buildings housing four types of operation areas – a powerhouse, pulp delivery, tissue
mill, and finishing/distribution – all of which he has worked in over the years. See
R.R. at 6a-7a. Bonkowski reported that the electricians were charged with keeping
the process running so, “[i]f it was part of the process, [they] worked on it.” R.R. at
24a; see also R.R. at 14a.
Bonkowski stated that Employer’s electricians initially worked from a
central shop and were assigned around the plant as needed, to regularly repair and test
machines, and to conduct “capital work” like new machine wiring, lighting,
construction, clean-up, etc.9 R.R. at 9a. Bonkowski specified that he and Bromley
were leaders from 1993 to 1997, meaning that they also purchased needed materials,
conducted safety meetings and created electrician job assignments. See R.R. at 8a,
11a. Moreover, Bonkowski recalled that when the central shop was dismantled in
1997 and the electricians were “assigned to individual assets” or families (i.e., given
specific area assignments), he was assigned to tissue mill 17 and Bromley was
assigned to the cogeneration facility (CCF) until 2000, when Bromley replaced the
napkins department electrician. R.R. at 8a; see also R.R. at 29a, 32a-33a, 43a.
Bonkowski articulated that, as electricians who worked throughout
Employer’s facility, he and Bromley came into contact with the various chemicals
used in Employer’s processing. See R.R. at 14a, 23a. He expounded:
9
Bonkowski testified that jobs were assigned by work order, horn call or shift supervisor’s
verbal request. See R.R. at 14a.
8
There was [sic] chemicals that were taken away from us
because they were called -- considered hazardous. One of
them was xylene, was a cleaning solvent that was used on
the machines. We were exposed to Tap Free that was taken
[] away from the mechanics [in the 1980s], because it was
considered dangerous.[10] Tazcon (ph) was a penetrating oil
that was removed, a lot of them just disappeared. I don’t
know if you can say they were removed, but I know our
cleaning tank, where we had a wash-up tank in the shop that
had the One-One-One in it, and I know that was removed.
Q. A cleaning solvent One-One-One?
A. Yeah. It had a code One-One-One on it. I don’t know
what the breakdown is but that was considered bad. We
were exposed to -- I guess we were exposed to
[polychlorinated biphenyl (]PCBs[)], which were replaced, I
guess, with number 10 transformer oil. PCBs that we used
to check test and work a lot with other vendors and stuff
like that. I mean, even the processes were changed, they
took kerosene out of the plant. They took formaldehyde out
of the plant [in the late 1980s]. They took milk of lime,
which was used for bleaching [recycled paper], which was
chlorine and lime and it was mixed, and it was called milk
of lime that was pumped out the plant, it was a bleach plant,
actually we had a bleach plant there [until the mid-1990s].
They had chlorine tanks, tanker trucks, train tanks, I guess
you would call them. That was full of chlorine.
Q. And you would come in contact with that as an
electrician?
A. Sure, because we had to disconnect motors, replace[]
rotted conduits, seal tights, the pipe fighters [sic] might be
pulling a pump. So in order to get the pump out, we had to
pull the motor out to make room for the new pump [to go]
in, and the mechanics would have to draw tap the motor
bases and things like that, so yeah.
Q. And when things would either disappear or be directly
pulled, were there ever any safety meetings with
management where that would be discussed?
10
Bonkowski clarified that although Employer no longer stocked Tap Free or Tap Magic,
the electricians all had cans of it that they continued to use thereafter until it was gone. See R.R. at
40a.
9
A. No, not really. Just went out and did your job.
Q. Is there any particular manager that would ever give you
any direction at all in safety, in dealings with these
chemicals that you recall?
A. I would say no, not really. Now, they did take asbestos
brakes out of the areas [in the early 1990s]. We did a lot of
asbestos brakes, transfer asbestos brakes, we used to take
care of the elevators. The freight elevators, they were all
asbestos brakes, and we would repair the motors in the shop
with asbestos brakes, blow out the motor and just blow
them out in the shop, and we didn’t have any special
HIPAA [sic] vacuum cleaner like they have today.
R.R. at 15a-17a; see also R.R. at 19a-23a, 42a.
Bonkowski described that, until the xylene tank was removed from the
plant, he and Bromley came into contact with xylene when they changed motor
pumps, and when it was sprayed on felts to clean them before starting the
manufacturing process. See R.R. at 18a. Bonkowski described that “the fumes were
so bad and they stunk so bad you’d be gagging and coughing, you’d have to leave the
area . . . .” R.R. at 18a. He recounted that Employer eventually installed an alarm for
people to leave areas where xylene was in use. See R.R. at 18a. He understood that
xylene was removed from the plant after the tank leaked into the well shop and
created an environmental hazard in approximately the late 1980s or early 1990s. See
R.R. at 17a, 19a, 39a-40a. Bonkowski recalled that, although he did not actually
witness Bromley with xylene on his clothes, all of the electricians were exposed, and
“[Bromley] being on shift longer . . . was probably exposed to it more[.]” R.R. at
19a.
Bonkowski also expressed that the electricians, including Bromley, were
exposed to significant amounts of industrial dyes, not only in the large tubs, and
through the dispensing hoses, but because dye was splashed everywhere, including on
motors, walls, doors, handrails, steps, starters and the floor, and they would touch it
10
and kneel in it to do their work, particularly in the CCF and napkins area. See R.R. at
23a-27a. Bonkowski specifically recalled that silica ash also covered every surface in
the CCF, including electrical panels, the dust system, walkways, doorways, floors and
even the road due to trucks hauling it to the landfill. See R.R. at 28a, 35a. He also
asserted that dust from culm (i.e., cheap coal) burned at Employer’s facility was “all
over the place” in the CCF. R.R. at 29a; see also R.R. at 30a.
Bonkowski recounted that, during the 2½ years that he and Bromley
worked the same shift:
A. Well, we worked on brakes together, we worked on
cranes together, because we were the two electricians
assigned to the main plant. So we were exposed to asbestos
dust on the cranes, elevators, brake dust. We pulled cable
and wire through the powerhouses and through the
basements, asbestos on top of the old pipes, when you pull
wire across the pipes the insulation was junky, so as you’re
wiring upon wire you’re cutting into the -- sawing into the
asbestos through the old basements and stuff, the old pipe
covering.
Q. Did you see any flaking or dust in that atmosphere?
A. Sure.
Q. Where else did you work with him?
A. Well, I mean, we’ve been all through the bleach plant
area. I mean, we’ve been through -- covered all the calls in
the bleach plant, the pulp prep department, in the beaters
and allies (ph), and things like that, that’s where kind of a
lot of the old pumps were resin pumps, stuff like that.
R.R. at 30a-31a.
Bonkowski acknowledged that, although he and Bromley worked in
separate areas between 1997 and 2000, and he did not know specifically what day-to-
day work Bromley did at that time, Bonkowski was aware of the conditions Bromley
was exposed to in the CCF during that time, “because [Bonkowski had] been over
11
there and [the ash was] everywhere.” R.R. at 35a; see also R.R. at 34a, 36a.
Bonkowski also knew that the napkins area where Bromley worked from 2000 until
2005 was approximately 80 by 300 feet in size and contained four machines, one of
which dyed the napkins, but since dye was splashed all over the area, Bromley would
have been in contact with it, whether he was working on the dye machine or not. See
R.R. at 44a, 52a-53a.
Bonkowski testified that Employer’s electricians were given plastic,
accordion-type dust masks to wear, but their use was emphasized only when
employees made motor brush changes or worked on brakes, due to carbon dust and
asbestos. See R.R. at 20a-21a. He also stated that protective clothing and leather
gloves were available to the electricians, but that no one really pushed their use or
warned that they should not enter a dye area without them, and when they did wear
the leather gloves they would get soaked with dye. See R.R. at 27a-28a, 41a.
Although he remembered Employer providing protective suits at some point, he does
not recollect when, and he explained that since they were not rubber, he could not say
whether they were water, dye or ink-repellant. See R.R. at 41a. In addition,
Bonkowski recalled Employer’s medical department fit-testing and assigning
respirators to the electricians approximately every 12 to 18 months, and the
electricians undergoing pulmonary function tests every three years as a condition of
their employment. See R.R. at 36a-37a. He pronounced that the respirators were
used primarily for ash rather than dye exposure. See R.R. at 28a, 37a-38a, 41a.
Bonkowski did not believe that he and Bromley were exposed to
asbestos or other chemicals during their Sun Ship apprenticeships because the ships
were empty steel hulls, and the apprentices were not informed that there was asbestos
present. See R.R. at 48a-49a. Employer, on the other hand, expressly notified
employees that there was asbestos at its facility, and pipes were so marked. See R.R.
12
at 48a. Bonkowski represented that he did not witness Bromley smoke during the
more than 40 years that he knew him. See R.R. at 49a-50a.
Jack Parris (Parris) testified that he has worked for Employer as an
electrician since 1969. See R.R. at 70a. He confirmed that electricians are
responsible for handling any electrical problem throughout Employer’s facility. See
R.R. at 70a. Parris represented that he has known Bromley since 1966, when they
worked at Sun Ship together. See R.R. at 70a, 97a. He recalled that he and Bromley
worked together for Employer from 1973 until 2006. See R.R. at 70a-71a. Parris
explained that since he worked swing-shift for the past 20 years, he and Bromley
worked together at least one-third of the time. See R.R. at 95a-97a, 104a. Parris
asserted that he and Bromley have had essentially the same job duties, and he
observed Bromley at work. See R.R. at 71a.
Parris described that he has been exposed to hazardous chemicals for
decades while working for Employer, including carbon dust from cranes and motors,
asbestos, xylene, bleach, formaldehyde, and dust and liquid dyes. See R.R. at 73a-
80a. He declared that he and Bromley were exposed to carbon dust while working on
cranes, brakes and motors, and asbestos throughout the facility. Parris specifically
recalled that xylene was sprayed freely from an 1½ inch hose to clean Employer’s
machines, which he and Bromley would smell and then experience headaches. See
R.R. at 75a-77a. He recounted that Employer eventually used an alarm to warn
employees to leave areas where xylene was being sprayed. See R.R. at 75a. Parris
articulated that he and Bromley while working together for Employer were exposed
for decades to bleach liquor, formaldehyde and asbestos. See R.R. at 76a-79a, 88a.
Parris further recollected a time when the electricians were told not to drink water
from the central shop fountain because, although it was clean enough to use for
processing, the city water may have been mixed with chemicals and sewage. See
R.R. at 87a-88a.
13
Regarding industrial dye exposure, Parris testified that he and Bromley
worked together in the several areas where the dyes were used. Parris described that
powder dyes were used in the pulp prep area:
[W]e had to go in there and change the motors out . . . [and]
work on the motor starters and . . . , you go like that,
(indicating) tap something you gotta watch because [there]
would be [powder dye] dust flying, so you knew you had to
be careful when you went in there. Never wore a respirator.
They never said wear a respirator . . . , and you’d get it on
your hands.
R.R. at 80a.
Parris explained that, although the liquid dye was more contained than
the powder dye, the electricians had to work on the pumps under the vats. See R.R. at
81a. He related that the liquid dye was all over the machine areas and the walls, and
he and Bromley, as the young guys, were sent there together because the older
electricians avoided the messy jobs. See R.R. at 82a-83a, 107a-108a. Parris recalled
that the electricians sometimes wore suits to keep from dirtying their clothes, but no
one ever told them not to touch the dye. See R.R. at 81a. He maintained that even
when the motors were brought to the electricians for service, they were covered in
dye that would get on their hands. See R.R. at 81a, 106a.
Parris stated that the electricians were not given respirators to work with
the dyes. See R.R. at 83a, 108a. He specified that employees were only trained to
wear their respirators in the CCF for protection from silicone. See R.R. at 83a-84a,
108a. Parris noted that he also used his respirator in areas like the coal yard due to
the dusty mist, but not if he was simply going there to flip a switch. See R.R. at 84a-
85a. He confirmed that the electricians were tested and fitted for personal respirators
every three years. See R.R. at 84a.
Parris also testified that he has worked around Employer’s asbestos-
covered pipes in the fan houses, attics, ceilings and the electrician’s central shop.
14
See R.R. at 85a. He represented that the 15 by 15 “motor rec room” where
electricians’ computers have been located for years, has the highest concentration of
asbestos, but since it is not flaking, Employer has yet to close it up. R.R. at 86a.
Parris confirmed that Bromley left shift work in the early 1990s,
Bromley and Bonkowski were leaders, Bromley was next assigned to CCF, then to
napkins until the equipment was sold and the department closed down in
approximately 2000 and Bromley removed the power. See R.R. at 89a-91a, 102a-
103a. He described that, as a leader between 1993 and 1997, Bromley did mostly
office work but, he would have done whatever electrical work was necessary when he
worked overtime. See R.R. at 91a-92a. Parris stated that Bromley worked in napkins
until the last machines were removed within the six months before Bromley left
Employer. See R.R. at 91a, 93a-94a, 111a. Even without the napkin machines,
Bromley was exposed to the remaining dye until his last day of work. See R.R. at
111a-112a. Parris concluded that Bromley was exposed to all of the same
contaminants that he was exposed to over their decades of working for Employer.
See R.R. at 88a. Parris admitted that he and Bromley smoked, but less than a pack a
day, and he recalled that Bromley quit more than 30 years earlier. See R.R. at 99a-
102a.
Claimant presented the October 19, 2009 and June 25, 2010 deposition
testimony of Barry L. Singer, M.D. (Dr. Singer). Dr. Singer explained that his
practice has focused primarily on oncology and hematology over the past 25 years,
only 2% to 3% of which has involved bladder cancer because “[i]t’s not one of the
most common cancers.” R.R. at 131a; see also R.R. at 134a. In preparation for
Bromley's evaluation, Dr. Singer reviewed Bromley’s medical records, including his
chest x-rays which reflected that Bromley had “asbestos lungs.” R.R. at 141a. He
also read Claimant’s, Parris’ and Bonkowski’s deposition testimony, Employer’s
material safety data sheets (MSDS), materials from the National Institute for
15
Occupational Safety and Health (NIOSH) and the International Agency for Research
on Cancer (IARC), and the independent medical evaluation report of Employer’s
oncology expert Alan J. Lippman, M.D. (Dr. Lippman). Dr. Singer stated that he also
reviewed Occupational Safety and Health Administration (OSHA) information, the
NIOSH carcinogen list and a KC Safety Tech Library Chemical Index. See R.R. at
165a-168a.
Dr. Singer described that any toxins or their byproducts that get into the
urine sit in the bladder and damage the transitional epithelium therein, which can lead
to metaplasia or dysplasia and, eventually, cancer. See R.R. at 140a-141a, 204a. Dr.
Singer declared that smoking is the prime cause for approximately 50% of bladder
cancer cases, due to benzene in cigarettes, but stated that 20% to 30% of bladder
cancers are caused by occupational exposure to chemicals. See R.R. at 140a, 142a-
143a, 163a-165a, 176a. He stated that workers who are not protected or who use
minimum protection are at a higher risk of occupational exposure, unless that work
area is 100% sealed. See R.R. at 176a-177a, 216a.
Dr. Singer produced abstracts of medical articles he reviewed that link
bladder cancer to chemical and asbestos exposure. See R.R. at 199a, 221a-231a,
244a-250a, 593a-622a. In particular, in Occupation and Bladder Cancer Among Men
in Western Europe (2003), higher bladder cancer risks were observed in electrical
workers and men employed in industrial chemical manufacturing. See R.R. at 244a.
In Bladder Cancer and Asbestos in Spain (1988), “the results [of a study conducted
between 1978 and 1982] showed that bladder cancer is associated with occupational
exposure to asbestos.” R.R. at 246a. The Italian study summarized in Occupation
and Risk of Bladder Cancer (1990), “confirm[ed] the well[-]known association
between bladder cancer risk and dyestuff production[.]” R.R. at 248a. In
Occupational Exposure to Chemical and Petrochemical Industries and Bladder
Cancer Risk in Four Western Canadian Provinces (2004), the study suggested that
16
there is an increased risk of bladder cancer in workers exposed to asbestos and
benzidene over the general population. See R.R. at 249a. In Occupational and Non-
Occupational Risk Factors in Bladder Cancer Patients in an Industrialized Area
Located in Former East-Germany (2005), bladder cancer was found to have been
overrepresented in patients with occupational exposure to asbestos and chlorinated
solvents. See R.R. at 250a.
Dr. Singer testified that Bromley’s work took him all over Employer’s
plant, and the portion of MSDS for chemicals used by Employer in areas where
Bromley worked since 1995 that he examined11 reflect that Bromley would have been
exposed to multiple carcinogenic compounds. Dr. Singer further explained:
Asbestos has some relationship to all cancers involving the
colon, the bladder, [and] the lung. So less so [sic] in the
bladder but certainly has potential to cause damage in
conjunction with other irritants.
As a sole exposure, it would be less likely but with [a]
combination of exposure with other compounds like
11
Dr. Singer clarified that he did not review all of the (approximately 250-300) MSDS that
he was given, because after he located approximately 15 which reflected carcinogenic compounds
used at Employer’s plant, he “felt it was sufficient.” R.R. at 206a; see also R.R. at 200a. Dr. Singer
identified the following carcinogenic compounds to which Bromley was exposed: ethyleneimine
(decorating dye; see 1997 request to approve 2-day trial in napkins - R.R. at 251a-254a), butadiene
(see 1997 MSDS for coupling grease - R.R. at 255a-264a), crystalline silica (see 1995 MSDS for
quick metal press fit, 1997 MSDS for CCF ash and a conditioning agent, 1999 MSDS for
permanent threadblocker, 2004 MSDS for pipe sealant - R.R. at 265a-289a, 333a-340a), nickel
compound (see 2004 MSDS for petroleum coke - R.R. at 290a-297a), toluene (see 1996 MSDS for
aerosol spray paint and 1999 MSDS for stencil ink spray - R.R. at 299a-303a, 316a-321a), xylene
(see 1996 MSDS for aerosol spray paint, 1996 MSDS for xylene and 2001 MSDS for metal and
textile markers - R.R. at 304a-309a, 316a-326a), ethylbenzene (see 1996 MSDS for xylene - R.R. at
322a-327a), trimethylbenzene (see 1996 MSDS for petroleum cleaner - R.R. at 310a-315a),
dicholorobenzidene (see 2000 MSDS for Bayprint yellow pigment - R.R. at 328a-332a), titanium
dioxide (see 1995 MSDS for quick metal press fit and 2001 MSDS for metal and textile markers -
R.R. at 304a-309a, 333a-340a), and trichloroethylene (see 2001 MSDS for lectra clean aerosol -
R.R. at 341a-344a). See R.R. at 157a, 201a-202a, 206a-215a, 217a, 220a, 251a-344a. He could not
determine from the MSDS whether, when or where Employer used those chemicals. See R.R. at
217a-218a.
17
benzene and the aniline dyes[, it] certainly would be a co-
contributing factor.
R.R. at 144a. Dr. Singer explained that the use of aniline dyes was prevalent in the
1970s and 1980s, and they were used by Employer, but they were mostly
discontinued by industries in approximately 1985 after they were known to be
carcinogenic. See R.R. at 146a, 162a-163a, 214a.
Dr. Singer did not believe that Bromley’s brief past smoking history
was significant in his developing bladder cancer because the benzene exposure was
“not long enough and the exposure was minimal.” R.R. at 141a. He did not consider
second-hand smoke exposure significant in Bromley’s case, since his wife did not
smoke, and his father smoked outside. See R.R. at 164a.
Dr. Singer represented that because bladder cancer generally occurs later
in life, and Bromley was only in his late 50s and did not smoke, his cancer was due to
“an intense exposure.” R.R. at 146a. He also deemed a significant sign of exposure
intensity that Bromley’s cancer was in the most advanced stage when it was
diagnosed, meaning that it had progressed rapidly and aggressively. See R.R. at
146a-147a.
Dr. Singer articulated that, based on the MSDS for the xylene Employer
used, the benzene compound ethylbenzene made up 15% of it. See R.R. at 143a,
150a. Dr. Singer reflected:
According to the reports I have read from the chemicals that
he was exposed to and the dyes and the silica and asbestos
that he was exposed to, [Bromley] had significant exposure
to chemicals and potential carcinogens or actual
carcinogens while at work at [Employer’s facility] and he,
according to [his] co-workers, he worked in areas that
certainly had exposure to xylene, previously to aniline dyes
and certainly he had exposure to asbestos because he had
asbestos lungs on [his] chest x-ray.
18
R.R. at 141a. He stated: “[Bromley’s] risk factors were . . . primarily the xylene,
which contained the 15% benzene, certainly the co-exposure to asbestos and silica,
especially the asbestos, [and] also some exposure that he had to the aniline dyes.
Those were the three main [sic].” R.R. at 146a. Dr. Singer could not point to any
scholarly journal article in which it was concluded that either asbestos, silica or
xylene alone could be a substantial factor in the development of bladder cancer. See
R.R. at 170a, 221a-231a. However, he concluded within a reasonable degree of
medical certainty that Bromley’s cumulative exposure to those chemicals at
Employer’s plant was a substantial contributing factor in his development of
bladder cancer and, thus, his death. See R.R. at 148a, 205a-206a, 221a.
Dr. Singer acknowledged that he did not know when or how much
xylene was used by Employer during Bromley’s employment, or whether Bromley
required medical attention for any acute exposures to xylene, silica or asbestos,
although it was clear that Bromley’s lungs revealed chronic changes due to asbestos
exposure and Claimant reported that Bromley experienced occasional rashes and
holes in his clothes.12 See R.R. at 153a-154a, 157a, 172a-173a, 213a, 218a-219a.
Employer presented the testimony of its environmental manager Gary
Baker (Baker).13 Baker described that he has been responsible for environmental
compliance, industrial hygiene accountability and testing at Employer’s Chester plant
since 1995. See R.R. at 417a-419a, 445a. He explained that, as chemical control
coordinator, he has had to review, approve and track all chemicals used in
Employer’s facility, and he inspects the site approximately once every six months.
12
Dr. Singer also admitted that Bromley’s medical records do not reference occupational
exposure to chemicals, but explained that he would not expect that there would be any such
references in oncology reports because the goal at that point is keeping the patient alive. See R.R. at
159a-161a, 175a, 218a-219a.
13
Baker was a safety, health and environmental coordinator at Employer’s corporate center
from 1990 to 1995.
19
See R.R. at 418a, 442a-443a, 465a. Baker presented MSDS for dyes used by
Employer, some of which date back to the late 1980s, and asbestos abatement and
removal records. See R.R. at 419a-420a, 437a, 444a, 451a, 460a. Baker reported that
he has Employer’s monthly chemical use inventory reports dating back only to 1995,
and they do not contain cleaning or maintenance chemicals, or oils and greases that
everyone uses. See R.R. at 464a-465a, 471a.
Baker articulated that since the CCF was built in the mid-1980s, it did not
contain asbestos. See R.R. at 420a-421a. He stated, however, that the manufacturing
facility does contain asbestos and, although a lot of it was removed in the 1980s and
early 1990s, there is still asbestos there, which Employer monitors daily. See R.R. at
421a-422a, 451a, 455a. Baker explained that although there is less asbestos now,
asbestos transite panels used for fireproofing walls remain in the facility. See R.R. at
455a, 459a. He added that there are also pipes covered in asbestos that are
encapsulated in aluminum, the ends are capped in material and the material is painted
over. See R.R. at 438a, 455a. Baker expressed that the asbestos could be exposed if
someone damages the steam line by cutting through the metal and into the insulation.
See R.R. at 439a. He claimed that electricians would normally be working on
electrical conduit that does not contain asbestos. See R.R. at 439a.
Baker related that when employees notify him of asbestos compromise on
the premises, an investigation is conducted regarding the cause and the exposure
potential then the compromise is either repaired or abated, and the air is monitored to
ensure there is no additional exposure risk. See R.R. at 424a-425a, 455a-458a, 459a.
Based upon his review of the results, Baker confirmed that, after asbestos repairs and
removals conducted at Employer’s facility, all actual and clearance testing fell below
permissible exposure levels.14 See R.R. at 425a-426a.
14
All asbestos clearance testing is conducted by an outside firm. See R.R. at 425a.
20
Baker disclosed that because there is the potential for employee exposure
to silica in the facility’s boiler 10 and CCF areas (including the office and water
treatment areas) due to anthracite coal burning, employees are required to wear
respirators in the CCF, particularly in the ash building. See R.R. at 426a-427a, 460a.
Baker agreed that Employer’s process was very different in 1970 than it
is now, and that he has no reason to dispute Bonkowski’s or Parris’ testimony about
xylene being sprayed to clean Employer’s mill prior to 1995. See R.R. at 449a. He
asserted that he has not approved or disapproved Employer’s use of xylene, and is not
aware of any xylene use at the facility since 1995. See R.R. at 429a. He recalled
that, since he has worked for Employer, an alarm is sounded to warn people to leave
the mill when the cleaning chemicals are being sprayed, but understands that has not
always been the case. See R.R. at 450a.
Baker claimed that Employer has only used kerosene to fuel small, five-
gallon, portable heaters used to heat certain areas of the plant during winter
shutdowns. See R.R. at 429a-430a. He stated that the heaters are not used in CCF,
since the machines generate their own heat. See R.R. at 430a. Baker recalled that
although the PCB transformers at Employer’s facility have been reduced because
they impose an environmental hazard, three still exist on-site, which are sealed and
regularly checked such that electricians and others who must work on them, are not
exposed to PCBs. See R.R. at 430a-431a, 461a-462a. He was not aware of any
employee reporting PCB exposure since 1995. See R.R. at 431a.
Baker reported that “[b]leach liquor refers to . . . the old style of mixing
two components together to make . . . concentrated sodium hypochlorite,” used by
Employer to whiten paper. R.R. at 431a. He confirmed that Employer still uses
sodium hypochlorite in the filter plant and in tissue manufacturing but, since at least
1995, a pre-mixed solution is shipped in. See R.R. at 431a, 462a, 471a-472a. He
reported that neither formaldehyde nor milk of lime have been used in the mill from
21
1995 to the present. See R.R. at 438a-440a. Although he recalled concerns being
expressed about the drinking water supplied by the Chester Water Authority, he
stated that Employer had it tested and confirmed that it “pretty much” matched
bottled water and, thus, was potable. R.R. at 433a.
Baker admitted that coal dust exists at Employer’s facility in the coal
yard, conveyor building and parts of the boiler building, and confirmed that CCF
personnel are exposed to the coal yard. See R.R. at 431a-432a. Baker acknowledged
that paper dust is generated in the paper mill areas of Employer’s facility, and where
parent rolls are converted to consumer-sized rolls, and some is evident in CCF or
where napkins are made. See R.R. at 433a.
Baker testified that he reviewed the MSDS for dyes and uncovered that
since the late 1980s only one – a bay print yellow – contained aniline and other
carcinogens, which was to be trialed for paper towels at Chester in approximately
2000 but, since it was not approved, it was never used. See R.R. at 434a-435a, 437a,
451a, 460a, 463a-464a. He recounted that powdered dyes had been used in the pulp
prep area of Employer’s plant to color tissues, but is not aware of powdered dyes
being used in the plant since 1995. See R.R. at 436a-437a.
Baker described that industrial dyes, inks, chemicals, silicas and asbestos
are still present at Employer’s facility, but that employees are trained on safe
chemical use, and are instructed regarding what safety equipment is needed for its
use. See R.R. at 468a, 470a. He stated that employees are required to report potential
chemical or other substance exposures to the medical and safety departments. See
R.R. at 424a, 433a-434a, 458a, 462a. He believed that the expectations are
represented in Employer’s safety handbook, which has been amended occasionally,
and that it falls under employee safety obligations to say no if they are asked to do
22
unsafe work, notify others that are doing unsafe work and report unsafe work.15 See
R.R. at 434a, 466a.
When asked whether there have been chemicals employees routinely
worked with since 1995 that were eventually deemed hazardous and removed from
use at the facility, Baker replied: “Nothing jumps to mind[.]” R.R. at 441a; see also
R.R. at 446a. He testified that Employer attempts to be proactive and remove
chemicals when it becomes known that they are dangerous. See R.R. at 467a-468a.
He recalled that he has made recommendations since 1995 to reduce environmental
impacts, like reducing volatile organic compounds and paper dust and silica
exposure. See R.R. at 446a-447a.
Baker recalled Bromley’s name but could not recollect his face, and he
admitted that he never directly supervised Bromley or even worked with him, nor did
he do the type of work Bromley did for Employer. See R.R. at 443a-444a.
Employer also presented Dr. Lippman’s April 7 and May 26, 2010
deposition testimony, which disagreed with Dr. Singer’s statements that Bromley had
significant exposure to chemicals and carcinogens during his employment. Dr.
Lippman further disputed Dr. Singer’s opinion that Bromley’s bladder cancer resulted
from Bromley’s exposure to a combination of chemicals, since there is no literature to
support such a conclusion. See R.R. at 503a. Rather, Dr. Lippman ultimately
concluded that Bromley would have suffered from bladder cancer whether he worked
at Employer’s facility or in a bookstore all of those years. See R.R. at 577a.
The law is well established that “[t]he WCJ is the ultimate factfinder and
has exclusive province over questions of credibility and evidentiary weight.” Univ. of
15
Baker described that employees undergo regular medical check-ups, and the respirators
are fit-tested to each employee. See R.R. at 428a-429a. He stated that, at least since 1995,
employees who do not wear the necessary respiratory protection are progressively disciplined with
counseling, verbal reprimands, written reprimands, suspensions and so on, depending upon the
number of violations. See R.R. at 427a.
23
Pa. v. Workers’ Comp. Appeal Bd. (Hicks), 16 A.3d 1225, 1229 n.8 (Pa. Cmwlth.
2011). “The WCJ, therefore, is free to 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).
Based upon the evidence presented in the instant case, the WCJ granted
the Fatal Claim Petition because Claimant met her burden of proof under Section
301(c)(1) of the Act. In reaching his decision, the WCJ made the following relevant
credibility determinations:
3. On review, the evidence presented in support of this
claim is found credible and persuasive, and is accepted over
the defense evidence as there is a conflict. . . .
4. The testimony and opinions of Dr. Singer are found
credible and persuasive. His opinions are accepted over
those of Dr. Lippman as there is a conflict. The testimony
of both co-workers ([] Bonkowski and [] Parris), along
with the testimony of [Claimant], is found credible and
persuasive as their testimony, individually and
collectively, support the opinions of Dr. Singer.
....
9. [] Baker’s testimony would negate any significant
exposure since 1995; he did not however, dispute the
testimony of the two co-workers (e.g., the spraying of
xylene previously . . . .), and acknowledged the
continued presence of a number of compounds at the
facility, such as asbestos, paper dust, and coal dust, and
silica exposure . . . . Dr. Singer noted . . . that []
Bromley’s work environment subsequent to 1995
(within the last 300 weeks of [] Bromley’s employment;
he worked until August 2005) exposed him to ‘multiple
compounds that were carcinogens.’ . . . Dr. Singer
concluded that the occupational exposure resulted in
the bladder cancer. He testified: ‘ . . . the total exposure
that he had to all these chemicals was the cause of his
bladder cancer.’
24
10. Dr. Singer is well qualified to express relevant opinions
in this case. . . .
11. Dr. Lippman . . . totally negated the workplace as a
causal factor in [] Bromley’s bladder cancer. At the
same time, he did not seek to specifically identify the cause
of the bladder cancer. . . . Given the record of [Bromley’s]
work duties as an electrician, in various sections of the
plant, with associated exposure to carcinogen agents over
many years as described by his co-workers ([] Bonkowski
and [] Parris), the opinions of Dr. Singer are found more
reasonable and more credible than those of Dr.
Lippman on the issue of causation. This conclusion is
strengthened given Dr. Lippman’s inability to express any
specific opinion as to the cause of [Bromley’s] bladder
cancer (and even more so, considering that he
acknowledged that some 20 percent of bladder cancers are
generally accepted to be associated with specific
occupational exposures . . . ). Dr. Lippman’s . . . challenge
[to Dr. Singer’s opinions] goes to the weight to be given to
Dr. Singer’s opinions; the undersigned, in turn, has found
Dr. Singer’s testimony credible and persuasive, and as
noted the more reasonable and credible given the
circumstances presented by this record.
WCJ Dec. at 1, 3-4 (emphasis added).
Neither the Board nor the Court may reweigh the evidence or the WCJ’s
credibility determinations. Sell v. Workers’ Comp. Appeal Bd. (LNP Eng’g), 771
A.2d 1246 (Pa. 2001). 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.”16 Pa. Uninsured Emp’rs Guar. Fund v.
Workers’ Comp. Appeal Bd. (Lyle), 91 A.3d 297, 303 (Pa. Cmwlth. 2014) (quoting
16
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 the evidence. Id.25
Dorsey v. Workers’ Comp. Appeal Bd. (Crossing Constr. Co.), 893 A.2d 191, 195
(Pa. Cmwlth. 2006)).
On appeal after remand, the Board agreed that substantial evidence
supported the WCJ’s conclusion that Claimant met her burden under Section
301(c)(1) of the Act.17 In particular, the Board declared that “Dr. Singer’s testimony,
accepted as credible by the WCJ, is unequivocal in attributing [Bromley’s] bladder
cancer to workplace exposure primarily to xylene, with co-exposure to asbestos and
silica and some exposure to aniline dyes.” Board Op. at 15.
“As with all claim petitions, the elements necessary to support [a fatal
claim petition] award must be established by substantial evidence. Substantial
evidence has been defined as such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Gibson v. Workers’ Comp. Appeal Bd.
(Armco Stainless & Alloy Prods.), 861 A.2d 938, 943 (Pa. 2004). Here, although it is
undisputed that Bromley’s death was due to bladder cancer, the parties do not agree
that Bromley’s bladder cancer was caused by workplace exposure within the 300
weeks before his death. Employer specifically contends that the lay witness
testimony was insufficient to prove Bromley’s alleged workplace exposure, and that
Dr. Singer’s opinions on causation were based upon an inadequate factual record and
lacked scientific or medical basis.
17
We agree with Employer that, in Finding of Fact 11, the WCJ appears to have implied that
Employer had a burden to demonstrate an alternative cause for Bromley’s cancer (i.e., “[Dr.
Lippman] did not seek to specifically identify the cause of the bladder cancer.” WCJ Dec. at 3; “Dr.
Lippman’s inability to express any specific opinion as to the cause of Claimant’s bladder cancer[.]”
WCJ Dec. at 4). Claimant here had “a nevershifting burden of proving not only that [Bromley’s]
injury arose in the course of his employment but also that the injury was related to it.” Pawlosky,
525 A.2d at 1211 (emphasis added). However, since other substantial evidence supported the
WCJ’s conclusion, those references in the WCJ’s finding constituted harmless error.
26
a. Three Hundred-Week Calculation.
In order for a fatal claim to be compensable under Section 301(c)(1) of
the Act, an employee’s death must occur “within three hundred weeks[18] after the
injury.” 77 P.S. § 411(1) (emphasis added). Accordingly, “[t]his Court has
consistently held, without exception, that Section 301(c)(1) [of the Act] denies
benefits to a claimant when more than 300 weeks have elapsed between the
commencement of the compensable injury and the injury-related death.” Whitesell
v. Workers’ Comp. Appeal Bd. (Staples, Inc.), 74 A.3d 297, 300 (Pa. Cmwlth. 2013)
(emphasis added); see also Olsen Bodies, Inc. v. Workmen’s Comp. Appeal Bd.
(Gavas), 573 A.2d 238, 240 (Pa. Cmwlth. 1990) (“there is no recovery for death
occurring more than three hundred weeks after a non-occupational disease[-]type
injury”).19 However, “[i]t is well settled that for an injury to be compensable under
the Act, it is not required that the injury resulted from any sudden occurrence or
accident; it may be due to daily trauma . . . .” Pittsburgh Steelers Sports, Inc. v.
Workers’ Comp. Appeal Bd. (Williams), 814 A.2d 788, 793 (Pa. Cmwlth. 2002)
(emphasis added).
The parties do not cite and our research has not disclosed any reported
judicial decision that defines precisely when the “injury” occurs in disease as injury
cases under Section 301(c)(1) of the Act. However, David B. Torrey and Andrew E.
Greenberg, in Workers’ Compensation: Law & Practice (3rd ed. 2008), opined: “The
commencement date applicable to a disease as injury case [under Section 301(c)(1) of
the Act] is appropriately conceived of as the last date of injurious exposure to the
agent causing the disease, whether or not such last exposure is disabling.” Id. § 5:19
18
“Three hundred weeks is the equivalent of five years, nine months and one week.” City of
McKeesport v. Workers’ Comp. Appeal Bd. (Miletti), 746 A.2d 87, 89 n.5 (Pa. 2000). The date 300
weeks prior to Bromley’s June 23, 2006 death was September 22, 2000.
19
The Pennsylvania Supreme Court has since stated: “[N]owhere in the Act is there any
such phrase as ‘occupational disease-like.’ An ailment is either an occupational disease or it is not.
The quoted phrase is meaningless, and it causes confusion.” Pawlosky, 525 A.2d at 1210 n.8.
27
(emphasis added). Specifically, for death claims in disease as injury cases, Torrey
and Greenberg declared that if “the employee dies more than 300 weeks after the
injury (last injurious exposure to the hazardous condition), then the fatal claim will be
barred.” Id. § 5:20.
Further, in Kuo-Hom Hsu v. Workers’ Compensation Appeal Board
(Rohm & Haas) (Pa. Cmwlth. No. 328 C.D. 2013, filed October 15, 2013), this Court
declared that the Board properly required the claimant to
prove [for purposes of Section 301(c)(1) of the Act] that
[the d]ecedent was exposed to a hazard that caused his
brain cancer or injury within 300 weeks of his July 3,
2007 death, . . . because, in a death claim, Section
301(c)(1) [of the Act] requires that death occur within three
hundred weeks of the injury. 77 P.S. § 411(1).
Slip op. at 3 (emphasis added).20 Thus, this Court has determined for a fatal disease
as injury claim to be compensable under Section 301(c) of the Act, the employee’s
hazardous exposure is the injury from which the 300 week look-back period must
be calculated.
Here, the WCJ concluded on remand that
the instant matter meets the provisions of Section 301(c)(1)
[of the Act] as a repetitive/cumulative[-]type injury by way
of exposure to carcinogenic agents in the workplace over an
extended period of time resulting in bladder cancer and
death -- as other repetitive/cumulative[-]type injuries to the
muscles/nerves of the body have been found compensable
under this provision of the Act.
WCJ Remand Dec. at 3. Indeed, this Court has consistently held that “[a]n injury
[under Section 301(c)(1) of the Act] is compensable when it develops over a period
20
We acknowledge that this Court’s unreported memorandum opinions may be cited “for
[their] persuasive value, but not as a binding precedent.” Section 414 of the Commonwealth
Court’s Internal Operating Procedures, 210 Pa. Code § 69.414. In light of the nearly identical facts
of this more recently-decided case, it is cited herein for its persuasive value.
28
of time and results from a number of work activities in which the employee
engaged.” Curran v. Workmen’s Comp. Appeal Bd. (Maxwell Indus.), 664 A.2d 667,
670 (Pa. Cmwlth. 1995). In such cases, “determinations of the date of injury depend
largely on the facts of each case, the purpose for which the injury date must be
established, and the medical evidence presented.”21 Id. at 671.
Based upon the foregoing, we hold that, in order for Claimant’s claim to
be compensable under Section 301(c)(1) of the Act, she had to prove by substantial
evidence that Bromley’s last exposure to a hazard occurred on or after
September 22, 2000.22
21
“In cumulative trauma cases [under Section 301(c)(1) of the Act], the last day of
employment is generally used as the date of injury for purposes of notice and filing limitations.”
Meenan Oil Co., L.P. v. Workers’ Comp. Appeal Bd. (Pownall), 846 A.2d 793, 795 n.5 (Pa.
Cmwlth. 2004) (emphasis added); see also City of Phila. v. Workers’ Comp. Appeal Bd. (Williams),
851 A.2d 838 (Pa. 2004).
22
Our conclusion is consistent with proofs required for occupational diseases under Section
301(c)(2) of the Act. Thereunder, if an employee did not file a lifetime benefit claim, his death due
to a statutorily-defined occupational disease must occur “within three hundred weeks after the last
date of employment in an occupation or industry to which he was exposed to hazards of such
disease[.]” 77 P.S. § 411(2); Ingram v. Workers’ Comp. Appeal Bd. (Ford Elecs. & Refrigeration
Corp.), 940 A.2d 544 (Pa. Cmwlth. 2007).
The Pennsylvania Supreme Court has declared:
Although Section 301(c)(2) [of the Act] references the employee’s
‘last date of employment,’ 77 P.S. § 411(2), . . . the 300-week period
begins on the last day of employment-based exposure to the
hazard. See Sporio v. [Workmen’s Comp. Appeal Bd.] (Songer
Constr.), . . . 717 A.2d 525 [] ([Pa.] 1998); Cable v. [Workmen’s
Comp. Appeal Bd.] (Gulf Oil/Chevron USA), . . . 664 A.2d 1349 []
([Pa.] 1995) (plurality).
Tooey v. AK Steel Corp., 81 A.3d 851, 870 n.6 (Pa. 2013) (emphasis added); see also Farr v.
Workers’ Comp. Appeal Bd. (TRW, Inc.), 823 A.2d 1043, 1046 (Pa. Cmwlth. 2003) (“[t]he three-
hundred week period prescribed in [Section 301(c)(2) of] the Act is measured from the last date of
exposure to the hazard alleged to cause the disease, not from the last date of employment”).
29
b. Whether a workplace hazard existed to which Bromley was exposed on
or after September 22, 2000.
Relative to WC claims brought pursuant to Section 301(c)(1) of the Act,
this Court has declared:
[W]hether a hazard exists is a question of fact for the
[WCJ] to determine. Furthermore, . . . a claimant’s
burden of proof related to this issue is not overly
demanding. We have also asserted that ‘[s]ince claimant’s
exposure is a factual question, the claimant need not
present scientific evidence or expert testimony to prove
the existence of the hazard in the workplace.’ Mauger [&]
Co[.] v. Workmen’s Comp[.] Appeal B[d.] (Waltz), . . . 598
A.2d 1035, 1037 ([Pa. Cmwlth.] 1991). ‘The [WCJ] may
rely solely on the testimony of the claimant or other
witnesses to prove the existence of and exposure to the
hazard.’ Id.Gray v. Workmen’s Comp. Appeal Bd. (Pittsburgh Bd. of Educ.), 657 A.2d 77, 80-81
(Pa. Cmwlth. 1995) (emphasis added).
As to proof of the existence of the disease-causing element
in the work environment, the courts have accepted lay
testimony, as well as other expert testimony, to support a
finding that the disease-causing element is present.
However, the testimony of a lay person appears to require
testimony of personal experience with the illness-causing
element and personal knowledge.
Craftex Mills, Inc. of PA v. Workers’ Comp. Appeal Bd. (Markowicz), 901 A.2d 1077,
1080-81 (Pa. Cmwlth. 2006) (emphasis added). Accordingly, lay testimony of first-
hand knowledge of a hazard gained from practical experience can be sufficient
to prove the existence of and exposure thereto. Gibson.
Because the WCJ did not have the benefit of Bromley’s personal
testimony regarding his specific workplace exposures to hazardous chemicals, the
law permitted the WCJ to consider and rely upon first-hand lay testimony regarding
30
Bromley’s work environment.23 Claimant testified regarding her personal knowledge
that over the years that Bromley worked for Employer, his clothing contained small
holes, and was covered in paper dust and dye.
Bonkowski and Parris worked with Bromley as electricians in
Employer’s Chester plant from 1973 until 2005, they had essentially the same job
duties and they observed Bromley at work. Employer’s electricians were charged
with keeping Employer’s entire process running, so they were directly exposed to all
areas of the plant, in, under and around the machinery, pipes and elevators.
Bonkowski testified from his personal experience that he and Bromley were regularly
exposed to industrial oils, bleach, formaldehyde, PCBs, kerosene, milk of lime,
bleach, coal ash, silica ash, carbon dust asbestos, and significant amounts of xylene
liquid and fumes and industrial dyes over the years since 1973, because coal and
silica dust and dyes covered the surfaces of Employer’s facility, and that asbestos
flakes and dust could be seen in the air. Bonkowski also specifically recalled seeing
Bromley with xylene-soaked pants on at least one occasion. Although several of the
chemical hazards were abated, and Bonkowski and Parris worked more closely with
Bromley before he was assigned to CCF in 1997 and the napkins after 2000, they
were aware that Bromley continued to be exposed to coal dust, silica ash and
23
Employer relies upon Gibson and May Department Stores v. Workmen’s Compensation
Appeal Board (Smith), 525 A.2d 33 (Pa. Cmwlth. 1987), to argue that the conclusory lay testimony
offered in this case was insufficient to support the WCJ’s findings. In Gibson, the co-worker’s lay
testimony was deemed insufficient to establish the decedents’ workplace asbestos exposure where
the co-worker “simply testified that he saw [the decedent] near a dusty, cottony material that [the
co-worker] was unable to identify.” Id. at 484. In May, this Court rejected decedent’s doctor’s
conclusion that the decedent contracted Legionnaire’s disease at work, because it was based solely
on the doctor’s assumptions that since the decedent worked with air-conditioning units, he was
exposed to damp environments, and that people who work in damp environments seem to be more
susceptible to Legionnaire’s disease than the normal population. Bonkowski’s and Parris’
testimony of first-hand experience with specifically-described chemicals and their personal
observations of Bromley’s exposure to them makes this case factually distinguishable from Gibson
and May.
31
industrial dyes in CCF between 1997 and 2000, and significant amounts of dye in
napkins from 2000 until he retired.
Baker admitted that Employer’s asbestos abatement records and his
monthly chemical inventory reports are limited in time, and that the latter do not
include the cleaning or maintenance chemicals or oils and greases employees
commonly used at the facility. Moreover, since Baker’s deposition was conducted
before Employer produced the MSDS for CCF and napkins from 1997 through 2005
which reflected that Employer continued to use hazardous chemicals in areas where
Bromley was assigned (including xylene containing benzene, despite Baker’s
representation to the contrary), Baker did not address them. Baker’s testimony did
not in any way contradict or refute Bonkowski’s or Parris’ testimony about the
continued use of hazardous chemicals or their specific presence in CCF and napkins
until 2005. Moreover, Baker confirmed that Employer’s employees, including
Bromley, during the relevant time period were exposed to silica dust and coal ash,
particularly in CCF, to dyes particularly in napkins, and asbestos throughout
Employer’s premises.
This Court has held:
‘In performing a substantial evidence analysis, this [C]ourt
must view the evidence in a light most favorable to the
party who prevailed before the factfinder.’ ‘Moreover, we
are to draw all reasonable inferences which are deducible
from the evidence in support of the factfinder’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) (quoting Waldameer Park, Inc. v.
32
Workers’ Comp. Appeal Bd. (Morrison), 819 A.2d 164, 168 (Pa. Cmwlth. 2003))
(citations omitted).
The WCJ made specific findings that the testimony offered by Claimant,
Bonkowski and Parris was credible. Baker’s testimony did not refute that Bromley
was exposed to chemicals while working for Employer after September 22, 2000.
See WCJ Dec. at 1, Finding of Fact 4; see also Finding of Fact 9. Although a
significant amount of Claimant’s hazardous exposure evidence established that
Bromley was regularly exposed to harmful substances throughout Employer’s
premises between 1973 and 2000, viewing the evidence in Claimant’s favor in this
case, as we must, we hold that the undisputed lay testimony offered by Bonkowski,
Parris and even Baker constituted substantial evidence to support the WCJ’s findings
of Bromley’s exposure to asbestos, silica dust, xylene and dyes in Employer’s
workplace on or after September 22, 2000.24
c. Whether Bromley’s workplace hazard exposure was a substantial
contributing cause of his bladder cancer.
“[I]n the case of a fatal claim petition, [the surviving family member has
the burden to prove] that th[e] injury or disease was a substantial contributing
cause in bringing about the death of th[e] employee.” Gibson, 861 A.2d at 943
(emphasis added). “If the causal connection is not obvious, the connection must be
established by unequivocal medical testimony.” Dietz v. Workers’ Comp. Appeal Bd.
(Lower Bucks Cnty. Joint Mun. Auth.), 126 A.3d 1025, 1030 (Pa. Cmwlth. 2015).
“[M]edical testimony is unequivocal if a medical expert testifies, after providing
foundation for the testimony, that, in his professional opinion, he believes or thinks a
24
Bromley’s exposure on Employer’s premises during the 40 hours he returned to work in
February 2006 is not clear.
33
fact exists.”25 Amandeo v. Workers’ Comp. Appeal Bd. (Conagra Foods), 37 A.3d
72, 80 (Pa. Cmwlth. 2012) (quoting O’Neill v. Workers’ Comp. Appeal Bd. (News
Corp., Ltd.), 29 A.3d 50, 58 (Pa. Cmwlth. 2011)).
Dr. Singer received his medical degree from Johns Hopkins University
and is board-certified in internal medicine. He has specialized in oncology (75% of
his current practice) since the 1970s, and he has been involved with the treatment of
bladder cancer over his 40 years of practice. See R.R. at 126a-134a. Based upon his
experience and extensive review of Bromley’s medical records, the depositions,
Employer’s MSDS, NIOSH, OSHA and IARC literature and journal articles, he
concluded that Bromley’s co-exposure to xylene, asbestos, silica and dyes over the
years while working at Employer’s facility since 1973 until August 11, 2005 was the
substantial cause of the bladder cancer from which Bromley died.26
25
“The question of whether expert medical testimony is unequivocal, and, thus, competent
evidence to support factual determinations is a question of law subject to our review.” Amandeo v.
Workers’ Comp. Appeal Bd. (Conagra Foods), 37 A.3d 72, 80 (Pa. Cmwlth. 2012).
26
Employer argues that the WCJ erred by overruling Employer’s objection that Dr. Singer’s
June 25, 2010 testimony of a definitive link between asbestos and bladder cancer lacked foundation
because Dr. Singer “never established any scientific facts or data based on his own personal
knowledge or from any other source[.]” Employer Br. at 53.
“It is well settled that the admission of evidence is within the sound discretion of the WCJ.”
Washington v. Workers’ Comp. Appeal Bd. (State Police), 11 A.3d 48, 59 (Pa. Cmwlth. 2011). “[A]
WCJ’s determination regarding the admission of evidence will not be overturned without a showing
of an abuse of that discretion.” Id. Further,
[t]he law provides that
expert testimony is incompetent if it lacks an adequate basis
in fact. While an expert’s opinion need not be based on
absolute certainty, an opinion based on mere possibilities is
not competent evidence. This means that expert testimony
cannot be based solely upon conjecture or surmise. Rather,
an expert’s assumptions must be based upon such facts as
the jury would be warranted in finding from the
evidence. Accordingly, the Pennsylvania Rules of Evidence
prescribe a threshold for admission of expert testimony
dependent upon the extent to which the expert’s opinion is
based on facts and data:
34
“As this Court has stated on numerous occasions, it is within the
[WCJ’s] power to determine which medical witness he or she accepts as credible, in
whole or in part.” Mauger & Co. v. Workmen’s Comp. Appeal Bd. (Waltz), 598 A.2d
1035, 1041 (Pa. Cmwlth. 1991).
The fact that [Dr. Singer’s] opinion conflicted with those of
[Dr. Lippman] does not make it equivocal. As long as [Dr.
Singer] could state, with a reasonable degree of medical
certainty, that . . . [Bromley’s] condition was caused by his
total and cumulative exposures . . . at Employer’s place of
business . . . , Claimant provided substantial competent
evidence to support a finding of causation.
McGraw Edison Power Sys. v. Workmen’s Comp. Appeal Bd. (Kuzior), 561 A.2d
1327, 1330 (Pa. Cmwlth. 1989). Here,
[t]he record discloses that [Dr. Singer] testified with a
reasonable degree of medical certainty that [Bromley’s
bladder cancer] resulted directly from [co-]exposure to
[xylene, asbestos, silica and dyes]. Notwithstanding
Rule 703. Bases of opinion testimony by experts
The facts or data in the particular case upon which an
expert bases an opinion or inference may be those
perceived by or made known to the expert at or before
the hearing. If of a type reasonably relied upon by
experts in the particular field in forming opinions or
inferences upon the subject, the facts or data need not
be admissible in evidence.
Pa.R.E. 703.
Helpin v. Trustees of Univ[.] of P[a.], 969 A.2d 601, 617 (Pa. Super.
2009) (citation and quotation marks omitted).
Gillingham v. Consol Energy, Inc., 51 A.3d 841, 849 (Pa. Super. 2012) (emphasis added). Where,
as here, Dr. Singer’s opinions were based upon his experience and extensive review of Bromley’s
medical records, the depositions, Employer’s MSDS, NIOSH, OSHA and IARC literature and
journal articles, there was a foundation for a link between asbestos and bladder cancer and, thus, the
WCJ did not abuse his discretion by overruling Employer’s objection. See R.R. at 199a; WCJ Dec.
at 2.
35
[Employer’s] artful cross-examination to induce testimony
on the possibility of other etiologies, [Dr. Singer] never
recanted h[is] initial assertion of causation and, in fact,
reiterated on cross-examination that [Bromley’s co-
]exposure to [xylene, asbestos, silica and dyes] was the []
explanation for the disease.
Superior Tube Co. v. Workmen’s Comp. Appeal Bd. (Unger), 572 A.2d 258, 260 (Pa.
Cmwlth. 1990) (footnote omitted).
Here, the WCJ made specific findings that the testimony offered by
Claimant, Bonkowski and Parris was credible, and that such evidence individually
and collectively supported Dr. Singer’s credited testimony that Bromley’s workplace
hazard exposure was a substantial contributing cause of his bladder cancer. See WCJ
Dec. at 1, Finding of Fact 4; see also Finding of Fact 9. Accordingly, we conclude
that the WCJ’s findings of fact are supported by substantial record evidence.
Because there is substantial record evidence to support the WCJ’s
findings that Bromley sustained an injury in the course and scope of employment that
caused his death within 300 weeks of his last exposure, the WCJ properly determined
that “Claimant has met the burden of proof required under Section 30[1](c)(1) of
the Act[.]” WCJ Remand Dec. at 3 (emphasis added).
II. Whether the WCJ issued a reasoned decision.
Employer also argues that the WCJ’s decision was not reasoned
“because the WCJ found that Claimant met her burden of proof on her Fatal Claim
Petition, which [Employer] respectfully submits that she did not,” and “because, in
granting Claimant’s Fatal Claim Petition, the WCJ relied upon insufficient evidence
to reach his decision” and, finally, “because the WCJ merely adopted Claimant’s
Proposed Findings of Fact.” Employer Br. at 50-51. We disagree.
36
Section 422(a) of the Act[27] requires a WCJ to issue a
decision that permits an appellate court to exercise adequate
appellate review. In order to satisfy this standard, a WCJ
does not need to discuss every detail of the evidence in the
record. Rather, Section 422(a) of the Act requires WCJs to
issue reasoned decisions so that this Court does not have to
‘imagine’ the reasons why a WCJ finds that the conflicting
testimony of one witness was more credible than the
testimony of another witness.
Although our Supreme Court has held that a WCJ need not
explain credibility determinations relating to a witness who
testifies before the WCJ, Section 422(a) of the Act requires
some explanation of credibility determinations by a WCJ
with regard to conflicting deposition testimony in order to
enable this Court to review a WCJ’s decision. Under
Section 422(a) of the Act, a WCJ must articulate the
objective rationale underlying his credibility determinations
where the testimony of such witnesses is conflicting. A
WCJ may satisfy the reasoned decision requirement if
he summarizes the witnesses’ testimony ‘and adequately
explains his credibility determinations.’ Clear Channel
Broad. v. Workers’ Comp. Appeal Bd. (Perry), 938 A.2d
1150, 1157 (Pa. Cmwlth. 2007). Thus, while summaries of
testimony alone would be insufficient to satisfy the
reasoned decision requirement, where a WCJ summarizes
testimony and also objectively explains his credibility
determinations, the decision will satisfy the requirement.
Further, other evidence in the record may provide the
objective support necessary under Section 422(a) of the Act
for adequate credibility determinations.
Amandto, 37 A.3d at 76 (citations omitted; emphasis added).
Here, because the WCJ clearly and extensively summarized the
testimony and objectively explained his credibility determinations, we hold that the
WCJ issued a reasoned decision in accordance with Section 422(a) of the Act.
Based upon the foregoing, the Board’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
27
77 P.S. § 834.
37
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kimberly Clark Corporation, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Bromley), : No. 656 C.D. 2016
Respondent :
ORDER
AND NOW, this 4th day of May, 2017, the Workers’ Compensation
Appeal Board’s March 30, 2016 order is affirmed.
___________________________
ANNE E. COVEY, Judge