Opinion
No. 571 C.D. 2014
09-10-2014
Christopher Bradley, Petitioner v. Workers' Compensation Appeal Board (Crucible Compaction Metals), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Christopher Bradley (Claimant) petitions for review of the order of the Workers' Compensation Appeal Board (Board) denying his second petition for a rehearing under Section 426 of the Pennsylvania Workers' Compensation Act (Act). We affirm.
Act of June 2, 1915, P.L. 736, added by Act of June 26, 1919, P.L. 642, as amended, 77 P.S. §871. Section 426 states, in relevant part, that "[t]he board, upon petition of any party and upon cause shown, may grant a rehearing of any petition upon which the board has made an award or disallowance of compensation or other order or ruling, or upon which the board has sustained or reversed any action of a [workers' compensation judge (WCJ)]...."
In July 2009, Claimant filed a claim petition alleging that he was diagnosed with nodular sclerosis-type Hodgkin's lymphoma in August 2006 due to his exposure to hazardous carcinogenic substances while working as a maintenance man for Crucible Compaction Metals (Employer). Claimant sought full disability benefits for various periods, medical benefits, counsel fees and disfigurement benefits due to scarring on his neck. Claimant later amended his claim petition to allege that he contracted lymphoma as a result of occupational exposure to Trichloroethylene (TCE), a halogenated hydrocarbon, thereby bringing his claim under the occupational disease provisions of Section 108(c) of the Act. Employer filed an answer to the claim petition denying the averments.
A more complete history of this case is outlined in the related appeal docketed at No. 116 C.D. 2014.
In a proceeding on a claim petition for compensation benefits, the claimant bears the burden of proving that he was injured in the course of employment and that he suffered a disability as a result of the injury. Waronsky v. Workers' Compensation Appeal Board (Mellon Bank), 958 A.2d 1118, 1123 (Pa. Cmwlth. 2008), appeal denied, 968 A.2d 1281 (Pa. 2009). Section 301(c)(2) of the Act 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(c), added by the Act of October 17, 1972, P.L. 930, as amended, 77 P.S. §27.1(c), states, in pertinent part, that "[t]he term 'occupational disease,' as used in this act, shall mean only the following diseases. ... Poisoning by ... halogenated hydro-carbons ... or any preparations containing these chemicals or any of them, in any occupation involving direct contact with, handling thereof, or exposure thereto." See also Section 301(e) of the Act, 77 P.S. §413 ("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.").
Claimant also filed a penalty petition under Section 435(d)(i) of the Act, added by the Act of February 8, 1972, P.L. 25, as amended, 77 P.S. §991(d)(i), alleging that Employer violated its statutory duties by failing to conduct an industrial hygiene program and by failing to investigate his claim.
Claimant presented as expert testimony the deposition of Frederick Fochtman, Ph. D. (Dr. Fochtman), who has a doctorate in pharmaceutical chemistry and is a Diplomat of the American Board of Forensic Toxicology and the American Board of Toxicology. Dr. Fochtman stated that he reviewed Claimant's testimony that identified exposures to TCE through "Spray On" and Hexavalent Chromium (Chrome VI) and air monitoring analyses that identified Chromium in the air at Employer's plant, and opined that Claimant's exposure at work caused his Hodgkin's lymphoma. He opined that Claimant's exposure to Chrome VI in combination with TCE caused Claimant's Hodgkin's lymphoma, but that neither substance individually caused Claimant's Hodgkin's lymphoma on its own.
Section 108(n) of the Act also states that "[t]he term "occupational disease," as used in this act, shall mean only the following diseases. ... All 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).
Claimant also submitted the December 2010 report of David Wilson, M.D., stating that any conclusion of cause and effect between Claimant's workplace exposures and his development of Hodgkin's disease would be speculative, and that he was unaware of any relationship between this disease and TCE and Chrome VI. Claimant also presented the testimony of Ronald Swedish, who worked with him between 2002 and 2008 in Employer's maintenance department, and who corroborated Claimant's testimony that "Spray On" was used in that department on motors and to clean pumps and bearings and in the super alloy department. He also corroborated Claimant's testimony that he coughed and was nauseated when he inhaled it.
Employer presented as expert testimony the deposition of Allan J. Lippman, M.D. (Dr. Lippman), who is certified in internal medicine and oncology. Dr. Lippman stated that he reviewed the medical records regarding Claimant's Hodgkin's lymphoma and opined that he did not find any relationship between exposure to TCE and the development of Hodgkin's lymphoma, and that TCE has not been shown to be a human carcinogen or to have any relation whatsoever to the development of Hodgkin's lymphoma. He stated that Chrome VI has not been shown to have any relationship to the development of Hodgkin's lymphoma and while there may be a connection between Chrome VI and certain types of cancer, it is not generally accepted in the medical community that Chrome VI causes Hodgkin's lymphoma. Dr. Lippman opined that Chrome VI and TCE, acting either alone or in concert, were not substantial contributing factors to Claimant's development of Hodgkin's lymphoma. He also testified that Claimant appears to be in complete remission and that he has no work restrictions.
In denying Claimant's claim petition, the WCJ accepted as credible and persuasive Dr. Lippman's testimony and rejected Dr. Fochtman's testimony to the extent that it differed from Dr. Lippman's. She concluded that while Claimant met his burden and established that he was exposed to TCE and was entitled to a rebuttable presumption that the exposure caused his Hodgkin's lymphoma under Section 108(c) of the Act, Employer rebutted that presumption because both Claimant's and Employer's expert witnesses testified that the TCE exposure alone did not cause Claimant's Hodgkin's lymphoma. The WCJ also concluded that Claimant did not meet his burden of proving that exposure to both TCE and Chrome VI was a substantial contributing factor to his development of Hodgkin's lymphoma, and that the penalty petition should be dismissed because Claimant did not establish a violation under the Act.
While Claimant's appeal was pending before the Board, he filed a petition for rehearing under Section 426 of the Act for the Board to consider newly acquired evidence. Claimant alleged that a recent analysis of DNA sequencing from cells from his biopsied mediastinal lymph node determined that mutations in the malignant cells were caused by DNA adducts by TCE metabolism. Claimant asserted that this proves that his condition was caused by his TCE exposure and requires remand. Regarding its timing, Claimant only stated that this evidence was not in his possession at the time of the WCJ's hearings, and that the results were not readily ascertained and could not have been discovered through reasonable diligence.
Added by Act of June 26, 1919, P.L. 642, as amended, 77 P.S. §871. Section 426 states, in pertinent part, that "[t]he board, upon petition of any party and upon cause shown, may grant a rehearing of any petition upon which the board has made an award or disallowance of compensation ... or upon which the board has sustained or reversed any action of a [WCJ]...."
Ultimately, the Board issued an Opinion affirming the WCJ's decision denying Claimant's claim and penalty petitions. The Board treated Claimant's rehearing petition as one for remand and denied it, stating, in relevant part:
The Board found that Claimant's penalty petition was without merit because his evidentiary challenge went to the issue of exposure and the WCJ accepted his exposure evidence, and that penalties are only imposed if the claimant is awarded compensation and he did not prevail on his underlying claim petition in this case. The Board also noted that Claimant's penalty petition was based on the purported violation of the WCJ's interlocutory discovery orders and that those orders were not part of the certified record.
See Section 419 of the Act, 77 P.S. §852 ("The board may remand any case involving any question of fact arising under any appeal to a [WCJ] to hear evidence and report to the board the testimony taken before him or such testimony and findings of fact thereon as the board may order...."); Puhl v. Workers' Compensation Appeal Board (Sharon Steel Corp.), 724 A.2d 997, 1000 n.4 (Pa. Cmwlth. 1999) ("[A] petition for rehearing under section 426 of the Act is properly filed only after the WCAB has issued a decision. Because Claimant filed his petition before the WCAB ruled in this matter, Claimant's Petition for Rehearing was premature. Thus, Claimant's request to present new evidence is properly considered a Petition for Remand under section 419 of the Act.... Further, we recognize that our courts have frequently analyzed remand issues under the same standards used in section 426 rehearing cases.") (citations omitted and emphasis in original).
Claimant contends that this DNA testing of Claimant's biopsied tissues was "recent," but testified that his biopsy was done in mid-2006 and concedes that other testing was done on his biopsied tissue. He does not assert that the testing was not, or could not have been, performed by the time of the WCJ proceedings. Claimant filed his [Claim] Petition in 2009 and the last hearing was not held until June, 2011. We simply do not know when this testing was performed and Claimant offers no attempt at an explanation as to why he could not have introduced this evidence before the WCJ. Assuming it was not performed until after the record closed, Claimant does not articulate a reason why he did not have it performed at a time when the results of the test could have been offered to the WCJ to aid her in the decision-making process.(Board 12/23/13 Opinion at 28-30) (citation omitted).
We cannot agree that this matter presents a situation where additional testing revealed something not previously ascertainable, even though it may not have been previously "ascertained," to use Claimant's word. Case law does not mandate a remand every time a losing party can point to something his counsel did not introduce as otherwise, piecemeal hearings prompted by the wisdom of hindsight would become the rule. Moreover, Claimant contended before the WCJ that TCE and Chrome VI worked in combination to cause his disease. In fact, Dr. Fochtman testified that exposure to TCE alone did not cause his condition. Claimant's assertion that his alleged recent evidence "proves that occupational exposure to [TCE] caused" his disease appears somewhat at odds with the basis of his case as presented to the WCJ, and would not, in this respect, serve to meet his burden. Further, the WCJ already decided to credit [Employer]'s expert evidence, contrary to that proffered by Claimant. Given all of the aforementioned, we see no basis to remand the matter.
As noted above, Claimant appealed the Board's order at No. 116 C.D. 2014. By order dated June 4, 2014, we quashed Employer's cross-appeal and by orders dated April 22, 2014, and July 28, 2014, we denied Claimant's requests to consolidate those cross-appeals with the instant appeal.
In February 2014, Claimant filed another rehearing petition incorporating the allegations in the prior petition and addressing the foregoing deficiencies. Specifically, Claimant alleged that in July 2013, an unidentified human genetics laboratory performed DNA sequencing analysis on malignant and normal cells that had been removed from his mediastinal lymph node in August 2006. Claimant also submitted an unnamed expert's opinion that this testing identified DNA adducts formed by TCE metabolism in his malignant nuclear DNA which proves that his Hodgkin's lymphoma was caused by his occupational exposure to TCE. Claimant also submitted that he made timely inquiry regarding the testing of Claimant's cells and outlined the reasons why he was unable to obtain these test results until July 2013.
Employer filed an answer with new matter denying all material allegations and arguing that the second petition should be denied because: Claimant has not supplied the DNA sequencing evidence that he seeks to submit; he has not supplied the expert medical or scientific opinion that the DNA sequencing evidence proves that his Hodgkin's lymphoma was caused by his occupational exposure to TCE as alleged; he has not alleged that the evidence that was tested or that DNA sequencing of that evidence was unavailable before the record was closed; his DNA sequencing evidence is merely an attempt to strengthen weak proofs; and his failure to provide any documentation, expert reports or associated proofs with the second petition does not demonstrate any legally cognizable cause shown upon which the Board could grant rehearing. The Board denied Claimant's second rehearing petition by order dated March 6, 2014, and Claimant filed the instant appeal.
Claimant argues numerous reasons why the Board abused its discretion in denying his second rehearing petition. In deciding whether to grant a rehearing under Section 426 based on after-discovered evidence, it is within the Board's broad power to grant a remand "when justice requires." Cudo v. Hallstead Foundry, Inc., 539 A.2d 792, 794 (Pa. 1988). A rehearing is not permitted solely for the purpose of strengthening weak proofs that have already been presented or for the purpose of hearing cumulative evidence. Stitchick v. Workers' Compensation Appeal Board (Trumball Corporation), 782 A.2d 1133, 1136 (Pa. Cmwlth. 2001).
Specifically, Claimant argues in his brief that: the second petition established cause for remand to assist the WCJ in disposing of his claim petition; the Board failed to specify the reasons for denying the petition thereby precluding meaningful appellate review; the unequivocal DNA evidence is necessary to satisfy the reasoned decision requirements of Section 422(a) of the Act, 77 P.S. §834; the DNA evidence is necessary causation evidence under Section 301(c)(1) of the Act, 77 P.S. §411(1), to prove that his Hodgkin's lymphoma is a compensable injury under Section 301(c)(2), 77 P.S. §411(2); the DNA evidence is necessary to determine whether he was entitled to maintain the causation presumption under Section 301(e) of the Act, 77 P.S. §413, and Section 108(c), 77 P.S. §27.1(c); the DNA evidence is necessary to determine whether the WCJ's determination that Employer rebutted the causation presumption to satisfy the reasoned decision requirements of Section 422(a) of the Act; the Board abused its discretion in affirming the WCJ's decision denying his claim petition before considering the after-discovered DNA evidence; and rehearing is required as a sanction to correct Employer's discovery violations which precluded a just disposition of his claim petition. See Petitioner's Brief at 69-80.
The decision to grant or deny a rehearing is within the Board's discretion and the Board's decision will not be disturbed absent an abuse of that discretion. Stitchick, 782 A.2d at 1136. An abuse of discretion occurs not merely when the Board reaches a decision contrary to one that this Court would have reached; rather, an abuse of discretion occurs "when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will." Payne v. Workers' Compensation Appeal Board (Elwyn, Inc.), 928 A.2d 377, 379 (Pa. Cmwlth. 2007) (citation omitted).
However, Claimant's second rehearing petition was, in essence, a request for the Board to reconsider its prior Opinion and Order denying his first deficient rehearing petition and does not even minimally set forth the sources of the after-discovered evidence that he seeks to introduce: the DNA sequencing analysis and the expert opinion connecting the results of this analysis to Claimant's occupational TCE exposure and his development of Hodgkin's lymphoma.
Such bald allegations omitting the source of the purported after-discovered evidence or testimony are insufficient to warrant the grant of rehearing under Section 426. See Westmoreland County v. Workers' Compensation Appeal Board (Fuller), 942 A.2d 213, 222 (Pa. Cmwlth. 2008) (holding that while it is not required, it was appropriate for a claimant to submit sworn affidavits as an offer of proof to support a request for remand because the "bald allegation that remand is necessary is insufficient without some offer of proof.") (citation omitted); UGI Corporation v. Workmen's Compensation Appeal Board (Wagner), 566 A.2d 1264, 1266 (Pa. Cmwlth. 1989) (holding that the Board properly denied rehearing where the employer did not file a petition or any medical document to support its conclusory statement in appeal forms that it had after-discovered evidence that the claimant's disability was not the result of his work-related back injury, but due to multiple sclerosis because "where the averments are not supported or verified in any way by a petition or otherwise, there was simply not sufficient evidence before the Board to conclude otherwise than it did...."). As a result, the Board did not abuse its discretion in denying Claimant's second deficient petition for rehearing.
The deficiencies in Claimant's second rehearing petition also distinguish the instant case from those relied upon by Claimant in which remand was required because the competence, relevance, materiality and admissibility of the after-discovered evidence could be determined from the petition submitted to the Board. See, e.g., Stitchick, 782 A.2d at 1136 ("Claimant wishes to introduce as evidence discovered after the close of the WCJ's record on April 12, 1999 the operative report of Dr. Canterna dated August 11, 1999 which indicates that a crack was discovered on the lateral tibular insert only after the prosthetic insert in the right knee was surgically removed and inspected. Claimant also wishes to introduce Dr. Canterna's narrative report dated October 20, 1999, which contains Dr. Canterna's explanation of the significance of the crack which was not in Claimant's possession or available until after October 20, 1999 and, consequently, is not in the record which was closed on April 12, 1999."); Puhl, 724 A.2d at 1001 n.5 ("Claimant seeks to present the results of a three-day evaluation by Lee S. Newman, M.S., a Board-certified internist and pulmonologist, specializing in occupational medicine at the National Jewish Center for Immunology and Respiratory Medicine in Denver, Colorado, and an evaluation by Jerrold L. Abraham, M.D., a Board-certified pathologist, specializing in environmental and occupational pathology at the State University of New York in Syracuse, New York. Dr. Newman's evaluation included a high resolution CT scan, a methacholine challenge test and a fiber optic bronchoscopy with transbronchial lung biopsy and bronchoalveolar lavage, all of which are sophisticated diagnostic tests that previously had not been performed on Claimant. Dr. Abraham then performed a quantitative microanalysis of the lung tissues forwarded by Dr. Newman, using scanning electron microscopy and energy dispersive ex-ray analysis. (R.R. at 174a-227a). Based on the results of their evaluations, both Dr. Newman and Dr. Abraham diagnosed Claimant as suffering from work-related pneumoconiosis. (R.R. at 177a-78a, 192a-94a, 227a)."); Patterson v. Workmen's Compensation Appeal Board (Manpower/Transpersonnel, Inc.), 554 A.2d 614, 615 (Pa. Cmwlth. 1989) ("One month after the Board's decision, Claimant underwent a Magnetic Resonance Imaging (MRI) scan at Johnstown Regional MRI Center on July 16, 1987. MRI is a relatively new technique similar to a CAT scan which expands the advantages of a CAT scan in detecting soft tissue injuries by viewing the various types of tissues through a magnetic field. The MRI scan revealed the presence of herniated discs at the C5-6 and C6-7 levels. Claimant was further examined by Doctor Robert Holst, a board certified neurosurgeon, and Doctor George W. Wheeling, a board certified orthopedic surgeon, both of whom confirmed the existence of cervical disc herniations and recommended that Claimant undergo a myelogram. Claimant's petition for rehearing on the basis of this newly discovered evidence was denied by the Board.").
This Court may affirm the Board's order on any basis raised below. MV Transportation v. Workers' Compensation Appeal Board (Harrington), 990 A.2d 118, 122 n.7 (Pa. Cmwlth. 2010).
Moreover, while Claimant argues that Cudo requires the grant of rehearing because this purported after-discovered evidence conclusively supports the rebuttable presumption of Section 108(c) and the award of benefits under the Act, a complete record was created to dispose of Claimant's petition in this case because both parties presented unequivocal expert evidence in support of their respective positions at the hearings before the WCJ. The Board properly affirmed the WCJ's determination that Dr. Lippman's credited unequivocal medical expert testimony rebutted the statutory presumption and precluded the award of benefits under the Act. As a result, Claimant's reliance on the Supreme Court's opinion in Cudo is likewise misplaced. See Mitchell v. Workmen's Compensation Appeal Board (Neal Tree Service), 565 A.2d 224, 226 (Pa. Cmwlth. 1989) ("In Cudo, the Board determined that the testimony presented at the first hearing was equivocal and that further hearings were needed to develop a full and complete record. In the present case, the Board found Dr. Askin's testimony to constitute substantial competent evidence to support the [WCJ]'s decision.... In light of the fact that the Board did not find the Employer's medical evidence to be equivocal or the record incomplete, we must conclude that the Board did not abuse its discretion in denying Claimant's petition for a rehearing.").
In Cudo, 539 A.2d at 795, the Supreme Court held that the Board did not err in granting rehearing "in the interests of justice" in a fatal claim petition proceeding, explaining that "[b]ecause the Board determined that the [only] medical testimony at the first hearing was equivocal, further hearings should have been held to develop a complete record upon which to assess the merits of [the claimant]'s claims." (Emphasis in original).
Claimant's reliance on Section 422(a) of the Act, 77 P.S. §834, and the Rules of Civil Procedure as requiring rehearing for the consideration of this evidence are also misplaced. His claims regarding Section 422(a)'s "reasoned decision" requirements are unavailing because, as noted above, Dr. Lippman's credited unequivocal medical expert testimony is legally sufficient to support both the WCJ's findings and her determination that the statutory presumption was rebutted.
His claims regarding the Rules of Civil Procedure are based on Employer's purported concealment of information in violation of the WCJ's interlocutory discovery orders and those orders were not part of the certified record of this appeal. While Claimant attached one of the orders as an appendix to his appellate brief, that order cannot be considered by this Court in disposing of this appeal because, as noted by the Board, it is not part of the certified record. See B.K. v. Department of Public Welfare, 36 A.3d 649, 657 (Pa. Cmwlth. 2012) ("An appellate court is limited to considering only those facts that have been duly certified in the record on appeal. For purposes of appellate review, that which is not part of the certified record does not exist. Documents attached to a brief as an appendix or reproduced record may not be considered by an appellate court when they are not part of the certified record.") (citations omitted). See also Fotta v. Workmen's Compensation Appeal Board (U.S. Steel/USX Corporation Maple Creek Mine), 626 A.2d 1144, 1147 n.2 (Pa. 1993) ("[T]he report is not part of the record and our review is limited to the evidence contained in the record. Humphrey v. W.C.A.B. (Super Market Service), [514 A.2d 246, 251 (Pa. Cmwlth. 1986)].").
Additionally, the Rules of Civil Procedure do not govern workers' compensation proceedings. Ace Tire Company v. Workmen's Compensation Appeal Board (Hand), 515 A.2d 1020, 1023 (Pa. Cmwlth. 1986), appeal denied, 529 A.2d 1083 (Pa. 1987); Yellow Freight System, Inc. v. Workmen's Compensation Appeal Board, 423 A.2d 1125, 1127 (Pa. Cmwlth. 1981). Rather, workers' compensation proceedings are governed by the Special Rules of Administrative Practice and Procedure Before Workers' Compensation Judges, and 34 Pa. Code §§131.61 to 131.70 govern the exchange of information, depositions and discovery, and 34 Pa. Code §§131.122 and 131.123 govern the disposition of Section 435(d)(i) penalty petitions for sanctions based on violations of the Act or of the regulations.
Finally, the Board did not err in denying Claimant's second rehearing petition by order and by failing to issue another opinion in support. As noted above, the second petition was, in effect, a request for reconsideration of the Board's order denying the first rehearing petition, and the Board already stated its reasons for denying the first petition in its prior opinion. See Payne, 928 A.2d at 381 ("The holding in Vista [International Hotel v. Workmen's Compensation Appeal Board (Daniels), 742 A.2d 649 (Pa. 1999),] is not applicable here because in this case, unlike in Vista, the Board denied reconsideration. Thus, the Board in essence, reaffirmed its opinion and order. In that opinion and order, the Board clearly stated the reasons why it held that the issue ... was waived.... When denying reconsideration, the Board was not required to restate those reasons again in its second Order denying reconsideration. Furthermore, we find that Claimant has not established that the Board's denial of her Motion for Reconsideration was manifestly unreasonable, that the law was not applied, or the action was a result of partiality, prejudice, bias or ill will. Thus, given our very narrow standard of review, we find no abuse of discretion in the Board's denial of Claimant's Motion for Reconsideration.") (emphasis in original and footnote omitted). Simply, the Board did not abuse its discretion in denying both of Claimant's rehearing petitions for the deficiencies outlined above.
Accordingly, the Board's order is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 10th day of September, 2014, the order of the Workers' Compensation Appeal Board at No. A 11 1956 REH 1353 is affirmed.
/s/_________
DAN PELLEGRINI, President Judge