D.W. Schmidt v. WCAB (City of Allentown) ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
David W. Schmidt, :
Petitioner :
:
v. : No. 1887 C.D. 2016
: Submitted: August 4, 2017
Workers’ Compensation Appeal :
Board (City of Allentown), :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: October 23, 2017
Petitioner David W. Schmidt (Claimant) petitions for review of an order
of the Workers’ Compensation Appeal Board (Board), dated November 8, 2016.
The Board affirmed the decision and order of a Workers’ Compensation Judge
(WCJ), denying and dismissing Claimant’s claim petition. For the reasons that
follow, we affirm.
Claimant was employed as a full-time firefighter for the City of
Allentown Fire Department (Employer) from August 28, 1978, through his last day
of active duty work on October 12, 2009. Prior to his last day of employment,
Claimant was diagnosed with coronary atherosclerosis, and he underwent open-heart
surgery on October 22, 2009. Claimant did not return to work after his surgery,
ultimately retiring on May 1, 2010.
On June 28, 2012, Claimant filed a claim petition, alleging a
compensable injury in the form of coronary atherosclerosis that rendered him totally
disabled beginning October 14, 2009. A WCJ conducted a hearing, during which
Claimant testified that his job duties were that of an average firefighter, and he was
able to perform them at adequate levels up until October 2009. (Reproduced Record
(R.R.) at 11.) Claimant testified that in the time period leading up to his last day of
employment, he began to experience shortness of breath and chest discomfort. (Id.
at 12.) This prompted Claimant to seek a medical evaluation with his family doctor,
ultimately leading to his surgery and subsequent retirement. (Id.) Claimant testified
that he was routinely exposed to smoke throughout his career and that, although he
utilized a breathing apparatus while exposed to fires, he would not use a breathing
apparatus all the time. (Id. at 17.) Claimant further testified that he was also exposed
to diesel smoke in the firehouse from the fire engines throughout his working career.
(Id. at 19-20.)
In support of Claimant’s claim petition, Claimant presented the
deposition testimony of Nicholas DePace, M.D. (Id. at 48.) Dr. DePace testified
that Claimant’s fire service exposure was a significant causative factor of his
coronary artery disease, albeit not the sole cause. (Id. at 53-54.) Dr. DePace opined
that Claimant would not have had to undergo surgery at the age of 59 if not for his
fire-service exposures over his career. (Id. at 54.) Dr. DePace further opined that
Claimant was disabled from firefighting as a result of his surgery. (Id.)
In opposition to the claim petition, Employer presented the deposition
testimony of Joseph A. Gascho, M.D. (Id. at 108.) Dr. Gascho testified that the
need for Claimant’s surgery was related to premature coronary artery disease
primarily caused by three classic risk factors—high blood pressure, high cholesterol,
2
and diabetes.1 (Id. at 123.) Dr. Gascho acknowledged Dr. DePace’s assertion that
Claimant’s coronary artery disease was caused by Claimant’s job as a firefighter.
(Id.) He opined, however, that although particulate matter from smoke exposure can
be a contributing factor, it is “not nearly as important” a factor as the other risk
factors that Claimant had. (Id. at 123-24.) Dr. Gascho also opined that Claimant
had recovered enough to return to work as a firefighter with Employer. (Id.
at 129-30.)
In a decision circulated on November 7, 2013, the WCJ determined that
the development of Claimant’s injury and resultant surgery were not due to his duties
as a firefighter, thus denying and dismissing the claim petition. Thereafter, Claimant
filed a timely appeal, alleging the WCJ failed to apply the statutory causation
presumption set forth in Section 301 of the Workers’ Compensation Act (Act).2 The
Board, by opinion and order dated January 29, 2015, agreed that the WCJ erred by
not applying the statutory presumption, vacated the WCJ’s decision, and remanded
the matter to the WCJ for the presumption to be applied.
By decision and order dated January 29, 2016, the WCJ applied the
statutory presumption and again denied Claimant’s petition. The WCJ noted that
the presumption under Section 301 of the Act is not conclusive, and the WCJ
concluded that the medical evidence presented by Employer successfully rebutted
1
Dr. Gascho testified that there are generally five risk factors that are considered to be
“classic risk factors” for coronary artery disease: (1) high cholesterol; (2) diabetes;
(3) hypertension; (4) family history; and (5) smoking cigarettes. (R.R. at 119.)
2
Act of June 2, 1915, P.L. 736, added by the Act of October 17, 1972, P.L. 930, 77 P.S.
§ 413. Section 301 of the Act provides:
If it be shown that the employe, at or immediately before the date of disability, was
employed in any occupation or industry in which the occupational disease is a
hazard, it shall be presumed that the employe’s occupational disease arose out of
and in the course of his employment, but this presumption shall not be conclusive.
3
that presumption. The WCJ accepted as credible Dr. Gascho’s testimony that
Claimant’s coronary heart disease was primarily the product of his high cholesterol,
hypertension, and diabetes. The WCJ rejected Dr. DePace’s testimony as not
credible, specifically his opinion that Claimant’s firefighting duties constituted a
substantial, contributing factor to the development of coronary heart disease.
Claimant then filed a timely appeal to the Board, challenging the credibility
determinations of the WCJ.
By opinion dated November 8, 2016, the Board affirmed the WCJ’s
denial and dismissal of Claimant’s claim petition. The Board agreed with the WCJ
that Employer had successfully rebutted the presumption under Section 301 of the
Act. Claimant then petitioned this Court for review.
On appeal,3 Claimant argues that the WCJ and the Board erred in
concluding that Employer presented substantial competent evidence to successfully
rebut the presumption of causation under Section 301 of the Act. More specifically,
Claimant argues that the testimony of Dr. Gascho, Employer’s medical expert, was
not tantamount to competent evidence from which the WCJ could conclude that
Employer successfully rebutted the presumption.
Claimant is seeking compensation for his coronary atherosclerosis
pursuant to Section 108(o) of the Act.4 A claimant proceeding under Section 108(o)
3
This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§ 704.
4
Act of June 2, 1915, P.L. 736, added by the Act of October 17, 1972, P.L. 930, as
amended, 77 P.S. § 27.1. Section 108(o) of the Act defines the term “occupational disease” to
include:
4
must first establish that he is suffering from and disabled by a particular occupational
disease of the heart or lungs. Harrigan v. Workmen’s Comp. Appeal Bd., 397 A.2d
490, 492 (Pa. Cmwlth. 1979). Once a claimant has established that he has contracted
an occupational disease, there is a presumption that the disease was caused by his
employment. Dillon v. Workers’ Comp. Appeal Bd. (City of Phila.), 853 A.2d 413,
418 (Pa. Cmwlth. 2004), appeal denied, 871 A.2d 194 (Pa. 2005). That presumption
is rebuttable by substantial, competent evidence. Id. An employer can successfully
rebut the presumption by introducing unequivocal, medical evidence that, although
a claimant’s exposure to the hazards of firefighting may be a cause of the heart
disease, other more significant causal factors are attributable to the heart disease. Id.
at 419. The determination as to whether the testimony of a medical witness is
competent is a question of law and is fully reviewable by this Court. Buchanan v.
Workmen’s Comp. Appeal Bd. (City of Phila.), 659 A.2d 54, 56 (Pa. Cmwlth.),
appeal denied, 668 A.2d 1137 (Pa. 1995). Such review must encompass the witness’
entire testimony and not merely isolated statements. Id.Claimant first argues that competent medical testimony did not exist to
rebut the presumption of causation because Dr. Gascho misunderstood Claimant’s
fire service. Specifically, Claimant alleges that “Dr. Gascho’s belief that [Claimant]
was always protected from smoke, particulate, diesel, and soot as of the end of the
[1980’s] prevents his opinion from providing the competent evidence necessary to
support the WCJ’s opinions that [Employer] rebutted the presumption.” (Pet’r Br.
at 18-19 (emphasis in original).) Claimant contends that Dr. Gascho’s medical
Diseases in the heart or lungs, resulting in either temporary or permanent total or
partial disability or death, after four years or more of service in fire fighting for the
benefit or safety of the public, caused by extreme over-exertion in times of stress
or danger by exposure to heat, smoke, fumes, or gasses, arising directly out of the
employment of any such firemen.
5
opinion is reliant on possibilities, as there is no evidence that indicates that Claimant
always wore his breathing apparatus. Accordingly, Claimant argues that this opinion
falls short of being competent evidence to rebut the presumption of causation. See
City of Phila. v. Workers’ Comp. Appeal Bd. (Kriebel), 29 A.3d 762, 769 (Pa. 2011)
(Kriebel). We disagree.
Here, Dr. Gascho never testified that Claimant “always” used his
breathing apparatus after it became standard protocol in the late 1980’s, merely that
Claimant used the breathing apparatus much more frequently. On the issue of
Claimant’s use of a breathing apparatus, Dr. Gascho testified:
Q: For exposure to smoke or particulate matter to be a
factor, does there need to be a certain extent of
exposure?
A: I’m sure there does. I mean, this is one of those gray
areas now. It’s very difficult to come up with
exactly how much – how many minutes or hours or
something else – I’m sure there’s some gradation
there – but of someone’s firefighting exposure.
Now, I think a significant issue in this situation, it
appears that this gentleman, [the Claimant], didn’t
use a [breathing apparatus] very much until the
eighties. Then from the eighties on, he used the
[breathing apparatus] quite – it seems like pretty
significantly religiously after that. Religious is not
a good word here. It seems like he used it much
more often from the eighties on. So that would
suggest that his exposure was significantly less after
that period of time.
(R.R. at 124.) Dr. Gascho did not fail to understand the nature of Claimant’s
firefighting duties with respect to Claimant’s usage of a breathing apparatus.
Instead, he explained that Claimant’s consistent use of a breathing apparatus after
the 1980s (as required by the standard operating procedures for firefighters), would
6
result in a decreased likelihood that Claimant’s coronary artery disease was a result
of his firefighting duties. Dr. Gascho expounded on this logic during his testimony:
A: The whole point of [wearing a breathing apparatus]
is to try to decrease the amount of exposure to the
smoke. And when you have official guidelines and
policies that say this is what you need to wear when
you go to fight fires, and you start to wear that kind
of thing and if it’s not going to be – certainly I think
that my opinion would be that you’re going to
significantly decrease the amount of exposure and
therefore you’re going to decrease the chance of this
being a factor in causation for coronary artery
disease.
(Id. at 126-27 (emphasis added).)
To be competent, an expert must base his testimony on facts warranted
by the record or reasonable inferences drawn therefrom. City of Williamsport v.
Workers’ Comp. Appeal Bd. (Cole(Deceased)), 145 A.3d 806, 813 (Pa. Cmwlth.
2016), appeal denied, ___ A.3d ___ (Pa., No. 570 MAL 2016, December 21, 2016).
Through Claimant’s own testimony, wearing a breathing apparatus became required
in the late 1980s, after which time Claimant agreed that it had become “routine” to
wear them. (R.R. at 18.) Based upon this information, Dr. Gascho opined that
Claimant would significantly decrease his exposure to airborne inhalants.
Claimant’s own medical expert, Dr. DePace, does not refute this conclusion, as he
stated that although a breathing apparatus would not completely eliminate the risk
posed by airborne inhalants, it would serve to diminish it. (Id. at 58.) Accordingly,
we conclude that the WCJ did not err as a matter of law by failing to conclude Dr.
Gascho’s testimony was incompetent insofar as his understanding of Claimant’s
duties as a firefighter and Claimant’s use of a breathing apparatus.
7
Next, Claimant challenges the competence of Dr. Gascho’s testimony
by averring that Dr. Gascho did not provide an opinion as to the cause of Claimant’s
disease within a reasonable degree of medical certainty. (Pet’r Br. at 19.) We
disagree. During his deposition, Dr. Gascho testified as follows:
Q: Based on all of the information that you were able
to glean from the records, do you have an opinion
within a reasonable degree of medical certainty as
to the cause for Mr. Schmidt’s coronary artery
disease?
A: Yes. I think that we would consider this to be
premature coronary artery disease. He had it in
his 50s and certainly has the three classic risk
factors of high blood pressure, high cholesterol and
diabetes, which are certainly the most important
factors, significant factors, in setting him up to
develop the cause of his coronary disease which
then resulted in him needing the operation.
(R.R. at 122-23.) Dr. Gascho’s medical opinion with respect to the cause of
Claimant’s coronary artery disease is the same opinion as the Claimant’s own
treating physician, Shehzad Malik, M.D. (R.R. at 155-56.) During Dr. Gascho’s
deposition, Employer introduced evidence in the form of a written statement from
Dr. Malik concerning his treatment of Claimant. (Id. at 21.) In the document,
Dr. Malik opines that the causation of Claimant’s coronary artery disease is more
likely to be attributable to Claimant’s own personal risk factors than Claimant’s
history as a firefighter. (Id. at 156.)
In his brief, Claimant argues that the instant case is analogous to
Jeannette District Memorial Hospital v. Workmen’s Compensation Appeal Board
(Mesich), 668 A.2d 249 (Pa. Cmwlth. 1995) (Mesich), appeal denied, 677 A.2d 841(Pa. 1996). In Mesich, this Court determined that an employer did not successfully
rebut the presumption of causation when the employer was unable to provide
8
alternative possibilities for the cause of the claimant’s disease. This Court
summarized as follows:
[The e]mployer’s evidence was insufficient to rebut the
presumption that [the c]laimant’s disease was
work-related. [The e]mployer presented the testimony of
Dr. Michael Malinger and Dr. Wayne Peternel. Dr.
Malinger testified that he could not establish within a
reasonable degree of medical certainty what had caused
[the c]laimant’s hepatitis. Dr. Peternel also testified that
he was unable to determine the cause of [the c]laimant’s
hepatitis. Therefore, [the e]mployer did not produce
substantial evidence rebutting the presumption that [the
c]laimant had acquired hepatitis within the course of her
employment.
Mesich, 668 A.2d at 252 (internal citations omitted).
Claimant’s analogy of Mesich, however, is not in accord with the record
in this case. Not only did Dr. Gascho testify that Claimant’s coronary artery disease
was attributable to the other significant risk factors previously listed, but he then
went on to describe his analysis of those risk factors and their importance in his
analysis. (R.R. at 119-28.) The WCJ found this testimony to be credible, and this
Court will not upset those credibility determinations, as they are the sole province
of the WCJ. Vols v. Workmen’s Comp. Appeal Bd. (Alperin, Inc.), 637 A.2d 711,
714 (Pa. Cmwlth. 1994).
Last, Claimant argues that Dr. Gascho’s “admission that particulate
matter from smoke can be a contributing factor to the development and progression
of coronary artery disease” is further evidence that his testimony is not competent to
support the WCJ’s decision. (Pet’r Br. at 20.) Specifically, Claimant points out that
Dr. Gascho agreed with Dr. DePace’s assertion that each of the Claimant’s risk
factors (diabetes, high cholesterol, and hypertension), in conjunction with
Claimant’s long-term exposure to particulate matter in smoke or diesel fuel
9
emissions were additive, in that each increased the risk for coronary heart disease.
This admission, Claimant argues, serves to show that Dr. Gascho improperly
disregarded the additive impact of Claimant’s service as a firefighter, rendering his
testimony incompetent as a matter of law.
While Dr. Gascho testified that Claimant’s long-term exposure to
particulate matter would be additive to Claimant’s risk of coronary heart disease, Dr.
Gascho also mentioned that Claimant’s risk due to this exposure was “minor
compared to the documented [risk factors]” present within Claimant. (R.R. at 148.)
In other words, although Dr. Gascho acknowledged the risks related to Claimant’s
service as a firefighter, he offered extensive testimony as to how Claimant’s other
risk factors were more causally related to Claimant’s coronary heart disease.
Claimant essentially asks this Court to reverse the credibility
determinations of the WCJ as they pertain to Dr. Gascho and Dr. DePace. In
assessing the credibility of Dr. Gascho and Dr. DePace, the WCJ found the
following:
The testimony and opinions of Dr. Gascho served as a
thorough refutation of the opinions and testimony of Dr.
DePace. The Employer convincingly demonstrated that
the Claimant’s development of coronary [atherosclerosis]
was caused by the classic risk factors for the development
of coronary [atherosclerosis], including diabetes, high
cholesterol, hypertension and obesity. Dr. DePace
unconvincingly dismissed or minimized these factors in
forming his opinion that the Claimant’s [atherosclerosis]
was caused by his employment as a firefighter. Dr.
DePace was also unaware as to any of the specifics as to
the Claimant’s job duties as a firefighter, including but not
limited to the frequency with which the Claimant fought
active fires, the chemicals the Claimant may have been
exposed to in the course of fighting fires, and the
preventative role the Claimant’s use of a self[-]contained
breathing apparatus may have played.
10
(WCJ Decision, Finding of Fact No. 10.) As previously referenced, the WCJ is the
final arbiter of witness credibility and evidentiary weight. Such credibility
determinations are binding on appeal, and we will not disturb them. See Vols,
637 A.2d at 714. Having accepted the testimony of Dr. Gascho, the WCJ had
substantial, competent evidence to support her determination that Employer
successfully rebutted the presumption of causation under Section 108(o) of the Act.
Accordingly, the order of the Board is affirmed.
P. KEVIN BROBSON, Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
David W. Schmidt, :
Petitioner :
:
v. : No. 1887 C.D. 2016
:
Workers’ Compensation Appeal :
Board (City of Allentown), :
Respondent :
ORDER
AND NOW, this 23rd day of October, 2017, the order of the Workers’
Compensation Appeal Board, dated November 8, 2016, is AFFIRMED.
P. KEVIN BROBSON, Judge