D.A. Kauffman v. WCAB (LTL Home Products, Inc. and Travelers) ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dale A. Kauffman, :
Petitioner :
: No. 1692 C.D. 2015
v. :
: Submitted: March 18, 2016
Workers’ Compensation Appeal :
Board (LTL Home Products, Inc. :
and Travelers Property Casualty :
Company of America), :
Respondents :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: July 6, 2016
Dale A. Kauffman (Claimant) petitions for review of the August 11,
2015 order of the Workers’ Compensation Appeal Board (Board), which affirmed
the decision of a Workers’ Compensation Judge (WCJ) denying Claimant’s claim
petition. We affirm.
On August 16, 2012, Claimant filed a claim petition against LTL
Home Products, Inc. (Employer), alleging that he sustained a work-related
occupational disease injury in the nature of pulmonary disease on April 13, 2012,
due to continuous exposure to mold and other toxic fumes while in the course and
scope of his employment as a Warehouse Manager for Employer. On August 27,
2012, Employer filed an answer to the claim petition denying the material
allegations, and hearings before a WCJ ensued.
At the hearings, Claimant testified that he worked in Employer’s
primary warehouse and that his job duties included unloading trucks by hand,
processing and shipping orders, and doing paperwork. Claimant stated that he
began working for Employer in 1994 and denied having any breathing problems
before working there. Claimant further stated that in the end of October 2011,
Employer brought material from a secondary warehouse to the primary warehouse
and that he began to get sick in November 2011. Claimant testified that he could
not get rid of his cough so he went to his family physician who prescribed a CPAP
mask and codeine cough medicine. Claimant described the material that bothered
him as plastic doors, plastic shelving, wood shelving, glass shelving, and other
junk, the majority of which was in cardboard boxes. Claimant noted that the boxes
possessed a distinct smell, and that the materials were housed in the secondary
warehouse with no heat and poor lighting for approximately fifteen years.
Claimant further testified that his breathing got much worse after the materials
were transferred to the primary warehouse. Claimant stated that his symptoms
included an uncontrollable cough and difficulty breathing and speaking. (WCJ’s
Findings of Fact Nos. 5-8, 11.)
Claimant also presented the deposition testimony of Jonathan Hertz,
M.D., who is board-certified in internal medicine and pulmonary disease. Dr.
Hertz testified that he began treating Claimant on May 16, 2012. Dr. Hertz stated
that Claimant told him that he developed new respiratory complaints of cough and
large amounts of phlegm production within days of the transfer of the materials
into the primary warehouse in November 2011. Dr. Hertz further testified that
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Claimant stated that his cough was aggravated by physical activity and exposure to
perfume, scents, cooking odors, and passive cigarette smoke. (WCJ’s Finding of
Fact No. 21.) Dr. Hertz diagnosed Claimant as suffering from:
[S]evere cough syndrome with an asthma-like condition,
what we call hyperactive airways disease, as a result of a
workplace exposure to mold and a moldy environment
over some weeks back in November 2011 and that the
problems with cough, wheezing, and bronchospasm
became so difficult that they set off a secondary
syndrome called vocal cord dysfunction, which added to
his respiratory complaints. I felt both of these, you know,
were largely related to workplace exposure back at the
time, I said.
(WCJ’s Finding of Fact No. 23.)
During his testimony, Dr. Hertz further opined that the multi-day
exposure to mold in the workplace made Claimant’s airway hyperactive, twitch,
irritable, and inflamed and that Claimant developed his condition as a result of the
exposure. Dr. Hertz admitted that he had no objective data or studies, such as air
testing showing that mold was present at Claimant’s work facility, but noted that
Claimant told him “that he could really smell that it was a very dank, damp
environment and that he felt uncomfortable and noticed the smell right away.”
(WCJ’s Finding of Fact No. 27.) Dr. Hertz also testified that when Claimant
stopped working, he did not get better and that he had a history of sensitivity
toward other items like household cleaners, cologne, perfume, and cold air.
(WCJ’s Findings of Fact Nos. 24, 27, 30.)
Employer presented the deposition testimony of John Cohn, M.D.,
who is board-certified in allergy, immunology, pulmonary medicine, and internal
medicine. Dr. Cohn performed Independent Medical Evaluations on Claimant on
May 2, 2012, and November 12, 2012. (WCJ’s Finding of Fact No. 37.)
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Dr. Cohn opined that Claimant’s diagnoses included: long-standing
reactive airways disease or asthma, vocal cord dysfunction, gastro-esophageal
reflux, cervical spine disease, anxiety issues, and a cough that comes and goes but
is secondary to the other diagnoses. Dr. Cohn testified to a reasonable degree of
medical certainty that these problems were not related to exposure to mold at work.
He further testified that most of the conditions he diagnosed Claimant with were
not remotely related to mold exposure or were conditions that mold exposure could
not create. (WCJ’s Finding of Fact No. 38.)
Dr. Cohn opined that Claimant’s asthma and breathing problems pre-
dated his alleged exposure to mold in the workplace and noted there was no
evidence of significant mold presence in the workplace. He also testified that
Claimant tested negative for mold allergies on February 3, 2012. Dr. Cohn stated
that Claimant did not improve when he was out of the workplace and his
symptoms were worse at night when he was at home. In concluding his medical
opinion as to whether Claimant’s symptoms were related to his workplace, Dr.
Cohn testified:
I think there’s really just inadequate evidence – there’s
really no good evidence. And Dr. Hertz in his very brief
opinion in his testimony doesn’t explain even why he
thinks there’s a connection between mold in the
workplace and this man’s complaints which obviously
pre[-]dated whatever . . . went on in October of 2011 and
it persisted long after he’s left the same location. So I
think there’s really no scientific basis. So to a reasonable
degree of medical certainty I can’t relate this to the
workplace.
(WCJ’s Finding of Fact No. 39.) In his testimony, Dr. Cohn also raised concerns
as to whether Dr. Hertz reviewed prior medical records and was aware of the
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extensive history of medical problems that Claimant had before October 2011.
(WCJ’s Finding of Fact No. 40.)
At the conclusion of the hearings, the WCJ accepted Claimant’s
testimony as credible, in part, but only to the extent that he described experiencing
ongoing symptoms and complaints. However, to the extent that Claimant’s
testimony purported to relate his symptoms and alleged disability after October
2011 to his work environment, the WCJ rejected it as not credible, finding that is
was not supported by the accepted medical evidence in the case. (WCJ’s Finding
of Fact No. 43.)
The WCJ accepted the testimony and opinions of Dr. Cohn as
credible, logical, internally consistent, and persuasive. The WCJ was impressed
with Dr. Cohn’s thorough patient history, his review of medical records, and his
qualifications and experience. The WCJ also noted that Dr. Cohn’s opinions were
supported by objective diagnostic studies and other testing outlined in his
testimony. (WCJ’s Finding of Fact No. 44.)
The WCJ rejected the testimony and opinions of Dr. Hertz to the
extent they conflicted with those of Dr. Cohn as less credible and persuasive. The
WCJ noted that Dr. Hertz’s history regarding Claimant’s prior problems and
treatment prior to October 2011 was extremely limited and much less thorough
than that obtained by Dr. Cohn. The WCJ explained that Dr. Cohn’s opinion was
based on a more detailed review of Claimant’s prior medical records. The WCJ
also found that Dr. Hertz’s opinions as to causation were based, in large part, on
speculation and Claimant’s limited history. The WCJ further explained his
position:
In this regard Claimant’s skin testing for mold sensitivity
or allergies was negative. Dr. Hertz admitted that he had
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no objective data or studies, such as air testing showing
mold at Claimant’s work facility. Dr. Hertz also
acknowledged that Claimant was suffering from a myriad
of other unrelated conditions, which could cause similar
symptoms.
(WCJ’s Findings of Fact No. 44.)
Based on these findings, the WCJ found that Claimant failed to
establish that he suffered from an occupational disease or work-related injury.
(WCJ’s Conclusion of Law No. 4.) Accordingly, the WCJ denied Claimant’s
claim petition.
On appeal, the Board affirmed. In doing so, the Board determined
that the WCJ provided specific explanations for his credibility determinations and
that the credibility determinations were supported by the record. The Board further
determined that the WCJ issued a detailed decision explaining why he reached the
legal conclusions that he did. (Board’s decision at 8-9.)
On appeal to this Court,1 Claimant argues that the Board erred in
affirming the decision of the WCJ because the WCJ failed to consider the record as
a whole and capriciously disregarded the credible and substantial evidence of
record. We disagree.
It is well settled that in a claim petition, the claimant bears the burden
of proving all elements necessary for an award. Inglis House v. Workmen’s
Compensation Appeal Board (Reedy), 634 A.2d 592, 595 (Pa. 1993). More
specifically, a claimant must establish that he sustained an injury during the course
and scope of his employment and that the injury was causally related to his
1
Our scope of review is limited to determining whether findings of fact are supported by
substantial evidence, whether an error of law has been committed, or whether constitutional
rights have been violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
6
employment. Delaware County v. Workers’ Compensation Appeal Board (Baxter-
Coles), 808 A.2d 965, 967-68 (Pa. Cmwlth. 2002). Section 301(c)(2) of the
Workers’ Compensation Act (Act),2 defines the term “injury in the course of
employment” to include an “occupational disease as defined in section 108 of [the
Act].” 77 P.S. §411(2). In turn, section 108 of the Act, 77 P.S. §27.1, provides a
list of occupational diseases and includes a catch-all provision in section 108(n) for
“[a]ll other diseases (1) to which the claimant is exposed by reason of his
employment, and (2) which are causally related to the industry or occupation, and
(3) the incidence of which is substantially greater in that industry or occupation
than in the general population.” 77 P.S. §27.1(n).
In assessing the evidence, the WCJ is the ultimate fact-finder and has
complete authority over questions of credibility and evidentiary weight. Davis v.
Workers’ Compensation Appeal Board (City of Philadelphia), 753 A.2d 905, 909
(Pa. Cmwlth. 2000). The WCJ is free to accept, in whole or in part, the testimony
of any witness, including medical witnesses. Greenwich Collieries v. Workmen’s
Compensation Appeal Board (Buck), 664 A.2d 703, 706 (Pa. Cmwlth. 1995).
Indeed, the WCJ may reject the testimony of any witness even if it is
uncontradicted. Capuano v. Workers’ Compensation Appeal Board (Boeing
Helicopter Co.), 724 A.2d 407, 410 (Pa. Cmwlth. 1999). The WCJ’s
determinations as to credibility and evidentiary weight are binding on appeal
unless made arbitrarily and capriciously. PEC Contracting Engineers v. Workers’
Compensation Appeal Board (Hutchison), 717 A.2d 1086 (Pa. Cmwlth. 1998).
In Leon E. Wintermyer, Inc. v. Workers’ Compensation Appeal Board
(Marlowe), 812 A.2d 478, 487 (Pa. 2002), our Supreme Court stated that the
2
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1—1041.4, 2501—2708.
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capricious disregard standard is an appropriate component of appellate review in
every case in which it is raised. However, this Court has emphasized that
“[c]apricious disregard occurs only when the fact-finder deliberately ignores
relevant, competent evidence.” Williams v. Workers’ Compensation Appeal Board
(USX Corp.-Fairless Works), 862 A.2d 137, 144 (Pa. Cmwlth. 2004).
Accordingly, under the capricious disregard standard, a WCJ may generally
disregard the testimony of any witness, even if the testimony is uncontradicted, but
does not have the discretion to disregard competent evidence without a reasonable
explanation or without specifically discrediting it. Green v. Workers’
Compensation Appeal Board (U.S. Airways), 28 A.3d 936, 942 (Pa. Cmwlth.
2011).
Here, the WCJ’s findings of fact reflect that the WCJ considered
Claimant’s testimony as well as Claimant’s expert’s testimony. Although the WCJ
did not find either credible, the WCJ summarized each of the witness’s testimony
and explained why he found the testimony of Claimant and his expert not credible.
More specifically, the WCJ found that the testimony of Claimant’s expert was not
credible because it was based on a questionable medical history and that there was
no objective evidence of Claimant being allergic to mold or that mold was present
in his workplace. Insofar as the WCJ found that Claimant’s testimony was not
credible, the WCJ determined that Claimant’s testimony as to causation was not
supported by the credible medical expert testimony. Based on this record, we
conclude that the WCJ did not capriciously disregard the evidence. See In re
Nevling, 907 A.2d 672, 675 n.4 (Pa. Cmwlth. 2006) (concluding that where
evidence is expressly considered and rejected, there is no capricious disregard of
that evidence); Capasso v. Workers’ Compensation Appeal Board (RACS
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Associates, Inc.), 851 A.2d 997, 1002 (Pa. Cmwlth. 2004) (concluding that the
WCJ did not capriciously disregard evidence where the WCJ did not ignore the
uncontradicted testimony of the claimant and his expert witness, but instead chose
not to believe it, and the WCJ explained the reasons for his decision and why he
rejected the claimant’s evidence).
Accordingly, the order of the Board is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dale A. Kauffman, :
Petitioner :
: No. 1692 C.D. 2015
v. :
:
Workers’ Compensation Appeal :
Board (LTL Home Products, Inc. :
and Travelers Property Casualty :
Company of America), :
Respondents :
ORDER
AND NOW, this 6th day of July, 2016, the order of the Workers’
Compensation Appeal Board, dated August 11, 2015, is hereby affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge