Opinion
No. 224 C.D. 2013
01-03-2014
Elizabeth Evans, Petitioner v. Workers' Compensation Appeal Board (City of New Castle), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
This opinion was reassigned to the authoring judge on December 5, 2013.
Elizabeth Evans (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) reversing the determination of a Workers' Compensation Judge (WCJ) and denying her fatal claim petition filed as a result of the death of her husband, John P. Evans (Decedent). For the reasons that follow, we affirm the Board.
Decedent was employed as a firefighter by the City of New Castle (Employer) from October 1947 through November 25, 1981. Decedent filed an occupational disease claim petition alleging total disability as of December 23, 1981, due to chronic obstructive lung disease and chronic bronchitis resulting from long and continuous exposure to smoke, dust, fumes and other deleterious gases during his course of employment. By decision dated January 5, 1983, a WCJ found that Decedent suffered from an occupational disease and, accordingly, granted Decedent's claim petition.
On April 3, 2009, Claimant filed a fatal claim petition alleging that Decedent died from cardiopulmonary arrest that was caused by his underlying occupational disease. Before the WCJ, Claimant testified that she married Decedent in 1964 and was dependent on him for financial support. According to Claimant, Decedent experienced shortness of breath and coughing at the time of his diagnosis, which progressed slowly through the years. However, she explained that between 2005 and 2007, Decedent's condition changed dramatically, as he could no longer climb steps, had difficulty breathing, had to ingest liquefied food, lost a great deal of weight, became barrel-chested, consistently felt cold, and had bluish lips, fingertips and nail beds. Claimant further testified that Decedent did not seek medical care after 2007 until hospice came to the house ten days before his death in February 2009. No autopsy was performed; however, Claimant offered into evidence Decedent's death certificate which listed cardiopulmonary arrest as the cause.
The January 5, 1983 WCJ decision was also admitted into evidence.
Claimant also presented the deposition testimony of Michael E. Wald, M.D. (Dr. Wald), who is board-certified in internal medicine. Dr. Wald testified that he examined Decedent in April 1982 and diagnosed him with chronic obstructive lung disease, which he believed was manifested by both emphysema and chronic bronchitis. Based on his review of medical records from 2006 and 2007 and the death certificate, Dr. Wald opined that Decedent's death was related to his chronic obstructive lung disease, as Decedent did not have a history of any other significant medical problems such as cardiac disease. Dr. Wald further explained that chronic obstructive lung disease causes under-oxygenation of the blood, which can precipitate a heart attack. However, Dr. Wald acknowledged that he "can't say that [Decedent] didn't have a myocardial infarction...or he didn't have a cerebral hemorrhage," and that he "can name ten different things that might have happened." (Dr. Wald's February 3, 2010 Deposition Transcript at 14-15). On cross-examination, Dr. Wald confirmed that his only evaluation of Decedent occurred in 1982 and that he never treated Decedent.
Employer presented the deposition testimony of Gregory J. Fino, M.D. (Dr. Fino), who is board-certified in internal and pulmonary medicine. Based upon his review of Decedent's medical records, Dr. Fino testified that although Decedent had significant chronic obstructive lung disease related to his firefighting, there was no objective evidence indicating the cause of Decedent's death. Dr. Fino explained that everyone dies of cardiopulmonary arrest because it simply means that the heart and lungs stop working, so the death certificate was not informative. He explained that medical records at or about the time of death and an autopsy are helpful in determining an individual's cause of death, but such records were not available for his review. On cross-examination, Dr. Fino acknowledged that Decedent's chronic obstructive lung disease could have caused his death, but reiterated that based on the evidence, he could not state within a reasonable degree of medical certainty that the disease did cause Decedent's death, and could not see how any physician could do so. He opined that Decedent's death could have been caused by conditions other than his lung disease such as myocardial infarction, stroke, aneurysm or natural causes, and noted that even if Decedent had a heart attack, his lung disease would not have been a contributing factor because they are two different disease processes.
The WCJ credited the testimony of Claimant and Dr. Wald. The WCJ noted that Claimant's description of Decedent's symptoms over the years and during his final days, including shortness of breath, troubled breathing, bluish lips and fingers and loss of weight, were consistent with the type of symptoms of chronic obstructive lung disease as testified to by Dr. Wald and Dr. Fino. Moreover, the WCJ held that Dr. Wald unequivocally opined that the progressive nature of Decedent's chronic obstructive lung disease caused his death. The WCJ found that Dr. Fino's testimony as to the cause of Decedent's death was speculative and, because he could not state within a reasonable degree of medical certainty what caused decedent's death, his opinion was equivocal. Accordingly, the WCJ granted the fatal claim petition.
Employer appealed to the Board, which reversed the WCJ's decision. The Board found Dr. Wald's testimony to be equivocal, explaining that although he opined that Decedent's death was related to his chronic obstructive lung disease, he also acknowledged that he could not rule out a myocardial infarction, a cerebral hemorrhage, a stroke or any number of other causes. Moreover, the Board determined that because Dr. Wald had not examined Decedent since 1982 or reviewed any recent records, he simply assumed that because Decedent had chronic obstructive lung disease, he died from it. The Board concluded that Dr. Wald's testimony was speculative and legally incompetent and, thus, Claimant did not meet her burden of proving that Decedent's occupational disease caused or was a substantial contributing factor in Decedent's death. Moreover, the Board concluded that Claimant's testimony regarding Decedent's symptoms preceding his death could not support a fatal claim petition because she is not a medical expert. This appeal by Claimant followed.
Our review is limited to determining whether constitutional rights were violated, an error of law was committed, or necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
On appeal, Claimant first argues that the Board erred by not affording her a presumption that Decedent's occupational disease caused his death pursuant to Sections 301(e) and 108(o) of the Workers' Compensation Act.
Act of June 2, 1915, P.L., 736, as amended, 77 P.S. §§413 and 27.1(o), added by the Act of October 17, 1972, P.L. 930.
Section 108(o) of the Act defines a special class of firefighter occupational diseases as:
Diseases of the heart and 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 or by exposure to heat, smoke, fumes or gases, arising directly out of the employment of any such fireman.77 P.S. §27.1(o).
As stated in Marcks v. Workmen's Compensation Appeal Board (City of Allentown), 547 A.2d 460, 463 (Pa. Cmwlth. 1988), the legislature has provided firefighters who seek compensation for an occupational disease an evidentiary advantage by declaring that "diseases of the heart and lungs" are occupational diseases of firefighters. That means a firefighter need not prove that the disease of the heart and lung is peculiar to the occupation of a firefighter.
Section 301(e) 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.77 P.S. §413 (emphasis added). This provision creates only a rebuttable presumption that an occupational disease is causally related to employment. City of Philadelphia v. Workers' Compensation Appeal Board (Kriebel), 612 Pa. 6, 29 A.3d 762, 769 (2011).
As to the burden that must be met in a fatal claim petition, the Court stated:
Within the context of a fatal claim petition, the surviving family member must substantiate the elements necessary to merit an award of benefits. "Those elements encompass establishment of a work-related injury or occupational disease, impact on the earning capacity of the employee, and, in the case of a fatal claim petition, that this injury or disease was a substantial contributing cause in bringing about the death of that employee."Id. at 16, 29 A.3d at 769 (citation omitted) (emphasis added). While Claimant was clearly entitled to a presumption that Decedent's occupational disease was causally related to his employment, there is no presumption, as Claimant contends, that the occupational disease caused Decedent's death. Claimant was required to prove that the chronic obstructive lung disease was a substantial contributing factor in Decedent's death.
The only evidence Claimant offered to show that Decedent's chronic obstructive lung disease caused his death was Dr. Wald's testimony. We agree with the Board that his testimony was incompetent and equivocal. He acknowledged that it had been 27 years since he evaluated Decedent; that he never treated Decedent; the most recent records he reviewed were from two years prior to Decedent's death; Decedent had not been hospitalized; there was no autopsy performed; and he could not rule out a number of other possible causes of death. Given those circumstances, there was simply not a sufficient evidentiary foundation for Dr. Wald's opinion that Decedent's occupational disease was a substantial contributing cause of his death. A fair reading of his testimony is that he did not know the cause of Decedent's death but was just speculating as to the cause of death.
It is well settled that questions relating to the equivocality of an expert's testimony are questions of law fully subject to this Court's review. Potere v. Workers' Compensation Appeal Board (Kemcorp), 21 A.3d 684, 690 (Pa. Cmwlth. 2011). Medical testimony is equivocal if it is less than positive or merely based upon possibilities. Id. Medical testimony will be deemed incompetent if it is equivocal. Id. --------
Accordingly, because the Board did not err in finding Dr. Wald's testimony to be equivocal and holding that Claimant failed to meet her burden, the Board's order is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 3rd day of January, 2014, the order of the Workers' Compensation Appeal Board, dated January 18, 2013, at No. A10-1586, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
DISSENTING OPINION BY SENIOR JUDGE FRIEDMAN
I respectfully dissent. Because Elizabeth Evans (Claimant) met her burden of proving, through the competent and unequivocal testimony of Dr. Michael E. Wald, that John P. Evans' (Decedent) occupational disease was a substantial contributing factor in Decedent's death, I would reverse the decision of the Workers' Compensation Appeal Board (Board).
Whether medical testimony is equivocal is a conclusion of law reviewable on appeal. Terek v. Workmen's Compensation Appeal Board (Somerset Welding & Steel, Inc.), 542 Pa. 453, 456, 668 A.2d 131, 132 (1995). "'Competency[,] when applied to medical evidence, is merely a question of whether the witnesses'[sic] opinion is sufficiently definite and unequivocal to render it admissible.'" Cerro Metal Products Company v. Workers' Compensation Appeal Board (Plewa), 855 A.2d 932, 937 (Pa. Cmwlth. 2004) (citation omitted). Further, "medical evidence is unequivocal as long as the medical expert, after providing a foundation, testifies that in his professional opinion he believes or thinks the facts exist." Id.
Before opining as to the cause of Decedent's death, Dr. Wald laid a foundation stating that he last saw Decedent in 1982, and for the past 20 to 25 years, Decedent suffered from a progressive lung disease. Dr. Wald reviewed Decedent's 2007 medical records. Decedent did not have a history of cardiac arrest or any other significant medical problems. When asked if he had an opinion as to the cause of Decedent's death, Dr. Wald stated:
A. I do. It is my opinion that his death was related to his chronic obstructive lung disease. The gentleman did not have a history of any other significant medical problems. Chronic obstructive lung disease is, by definition, a progressive disease. When we can try to get involved in treating this condition, we don't stop it from progressing, we hopefully slow the progression, but over a period of time it is inexorably progressive.(Dr. Wald's Dep., 2/3/10, at 10.)
I assume that that's the case with [Decedent] as well. I saw him in '82 and he died some 20, 25-plus years later. I'm sure there was progression of his disease. The attending physician said that he had cardiopulmonary arrest. There was no history of any cardiac disease. So I think that his problem was predominantly that of his progressive chronic lung disease.
Therefore, it is my medical opinion and based with what I feel is a reasonable degree of medical certainty that his death was related to his occupationally-related pulmonary problem.
Decedent's death certificate further supports Dr. Wald's testimony that Claimant's death was related to his chronic obstructive lung disease. "'[A] properly authenticated death certificate is generally admissible as proof, albeit not conclusive, of both the fact and the cause of death.'" Reading Anthracite Company v. Workers' Compensation Appeal Board (Felegi), 789 A.2d 404, 409 (Pa. Cmwlth. 2001) (citation omitted). The death certificate listed cardiopulmonary arrest as the cause of death, and Dr. Wald, whose testimony was credited by the WCJ, stated that the death certificate implied that the cause of Decedent's death was related to his occupationally-related pulmonary problem. (WCJ's Findings of Fact, No. 8.)
In concluding that "there was simply not a sufficient evidentiary foundation for Dr. Wald's testimony that Decedent's occupational disease was a substantial contributing cause of his death," the majority observes that no autopsy was performed and the most recent medical records were two years old. (Maj. Op. at 7.) However, the failure of a medical professional to view all of a claimant's medical records goes to the weight of the professional's testimony, not its competency. Huddy v. Workers' Compensation Appeal Board (U.S. Air), 905 A.2d 589, 593 n.9 (Pa. Cmwlth. 2006). Moreover, the most recent medical records available were from 2007, which Dr. Wald did review.
Dr. Wald stated that chronic obstructive lung disease is progressive and irreversible. Dr. Wald opined that Decedent "had a progressive life-threatening disease, and he died of a cardiopulmonary problem." (Dr. Wald's Dep., 2/3/10, at 14.) Because Dr. Wald, after laying a foundation, unequivocally opined that Claimant's progressive chronic obstructive lung disease was predominant and his death was related to it, I would reverse the decision of the Board and reinstate the WCJ's grant of Claimant's fatal claim petition.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge