Opinion
No. 328 C.D. 2013
10-15-2013
Kuo-Hom Hsu, Individually and as Administrator of the Estate of Jemin Charles Hsu, deceased, Petitioner v. Workers' Compensation Appeal Board (Rohm and Haas), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Kuo-Hom Hsu (Claimant), Individually and as Administrator of the Estate of Jemin Charles Hsu (Decedent), petitions for review of an Order of the Workers' Compensation Appeal Board (Board) affirming the Workers' Compensation Judge (WCJ) Decision denying Claimant's fatal claim petition. On appeal, Claimant argues that the WCJ misapplied the 300-week statute of repose set forth in Section 301(c) of the Workers' Compensation Act (Act), the WCJ committed several errors of fact when making credibility determinations, and the Board erred by denying Claimant's petition for a rehearing based upon newly discovered evidence. Discerning no error, we affirm.
As explained by our Supreme Court:
A statute of repose is defined as a "statute barring any suit that is brought after a specified time since the defendant acted (such as by designing or manufacturing a product), even if this period ends before the plaintiff has suffered a resulting injury." BLACK'S LAW DICTIONARY 1451 (8th ed. 2004). Thus,
A statute of repose . . . limits the time within which an action may be brought and is not related to the accrual of any cause of action; the injury need not have occurred, much less have been discovered. Unlike an ordinary statute of limitations which begins running upon accrual of the claim, the period contained in a statute of repose begins when a specific event occurs, regardless of whether a cause of action has accrued or whether any injury has resulted.
City of McKeesport v. Workers' Compensation Appeal Board (Miletti), 560 Pa. 413, 421, 746 A.2d 87, 91 (2000) [(Nigro, J., dissenting)] (citations and emphasis omitted). While a statute of limitations merely bars a party's right to a remedy, a statute of repose completely abolishes and eliminates a party's cause of action. Noll v. Harrisburg Area YMCA, 537 Pa. 274, 281, 643 A.2d 81, 84 (1994).
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411. Section 301(c) defines "injury," "personal injury," "injury arising in the course of his employment," and provides with respect to a non-occupational disease or regular injury that "wherever death is mentioned as a cause for compensation under this act, it shall mean only death resulting from such injury and its resultant effects, and occurring within three hundred weeks after the injury." 77 P.S. § 411(1). "Injury," "personal injury," and "injury arising in the course of his employment" include an occupational disease, as defined in Section 108 of the Act, added by Section 1 of the Act of October 17, 1972, P.L. 930, as amended, 77 P.S. § 27.1. 77 P.S. § 411(2). With respect to an occupational disease, Section 301(c)(2) provides that:
whenever occupational disease is the basis for compensation, for disability or death under this act, it shall apply only to disability or death resulting from such disease and occurring 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: And provided further, That if the employe's compensable disability has occurred within such period, his subsequent death as a result of the disease shall likewise be compensable.
Decedent was employed by Rohm and Hass Company (Employer) as a research scientist from October 1983 to August 2003, when he took a medical leave after being diagnosed with glioblastoma multiforme, a type of brain cancer. (WCJ's Decision, Findings of Fact (FOF) ¶ 1; Board Op. at 1.) Decedent died on July 3, 2007 due to brain cancer. (FOF ¶ 1.) Claimant filed a fatal claim petition alleging that Decedent died from brain cancer that was caused by his employment for Employer at its Spring House facility (Spring House). (FOF ¶ 1-2; Board Op. at 1.) Employer's "Spring House site is a research and development facility at which [Employer] develops new products and tests their efficacy." (FOF ¶ 3a.) Claimant began working at Spring House on October 3, 1983 and began working in a newly-constructed building (Building 4B) located at that facility in 1987. (FOF ¶ 3e.) Claimant alleged that she was entitled to fatal claim benefits pursuant to Section 301(c)(1) and (c)(2) and Section 108(c) and (f) of the Act. (FOF ¶ 2.) Hearings before a WCJ ensued.
77 P.S. § 27.1(c), (f). Section 108 provides that the following enumerated diseases, inter alia, are an "occupational disease" as used in the Act:
(c) Poisoning by methanol, carbon disulfide, carbon monoxide, hydrocarbon distillates (naphthas and others) or halogenated hydrocarbons, toluene diisocyanate (T.D.1.) or any preparations containing these chemicals or any of them, in any occupation involving direct contact with, handling thereof, or exposure thereto; and
. . . .
(f) Radium poisoning or disability, due to radioactive properties of substances or to Roentgen-ray (X-rays) in any occupation involving direct contact with, handling thereof, or exposure thereto.
In support of the fatal claim petition, Claimant presented the deposition testimony of several expert witnesses in an effort "to establish a causal connection between [Decedent's] brain cancer and exposure to chemicals at work." (FOF ¶ 2.) Claimant purported to show that Decedent was exposed to chemicals through deficient air quality at Employer's facility and through deficient laboratory hood maintenance. (FOF ¶ 2.) Employer also presented the deposition testimony of several expert witnesses in order to establish that Decedent "was not exposed to any hazardous level of any chemical, there was not an increased incidence of brain cancer at the Spring House facility and there is no scientific support for Claimant's contention that chemicals in the workplace caused [Decedent] to develop brain cancer." (FOF ¶ 2.) Employer also contended that Claimant's fatal claim petition was barred by the 300-week statute of repose. (FOF ¶ 2.)
The WCJ rejected Claimant's evidence on exposure and causation as not credible and further found, without distinguishing between subsections (1) or (2) of Section 301(c) of the Act, that the fatal claim petition was barred by the 300-week statute of repose because Claimant was unable to show that Decedent was exposed to any potential hazard within the 300 weeks before his death or after September 26, 2001. (FOF ¶¶ 1-7.) Accordingly, the WCJ denied Claimant's fatal claim petition.
"Three hundred weeks is the equivalent of five years, nine months and one week." City of McKeesport, 560 Pa. at 418 n.5, 746 A.2d at 89 n.5.
Claimant appealed the WCJ's Decision to the Board. In her appeal, Claimant requested a rehearing so that the WCJ could consider newly discovered evidence; specifically, a 2010 University of Minnesota study that was published after the WCJ issued his Decision, which evaluates the rate of brain cancer deaths related to Employer's employees at Spring House. (Board Op. at 1-2.) Upon review, the Board concluded that, with respect to the 300-week statute of repose set forth in Section 301(c)(1) of the Act, Claimant "bore the burden of proving that Decedent died within 300 weeks of his 'injury,' or the last date on which he was exposed to the hazard that allegedly caused the fatal disease." (Board Op. at 8.) Because Decedent died on July 3, 2007, the Board determined that the alleged injury would have had to occur on or after October 2, 2001, the date 300 weeks before Decedent's death. (Board Op. at 9.) The Board concluded, however, that the record showed that Decedent was not exposed to "anything that allegedly caused his brain cancer" after 1995; therefore, Claimant's allegation that Decedent's brain cancer constitutes an injury under the Act was barred by the 300-week statute of repose provided for in Section 301(c)(1) of the Act. (Board Op. at 9.)
The University of Minnesota study, dated October 25, 2010, is entitled "A Report on the Mortality Experience of the Spring House Research Facility in Montgomery County, Pennsylvania," and was submitted to Employer by the University of Minnesota School of Public Health, Division of Environmental Health Sciences. (R.R. at 3535a-3656a.)
The Board cited the deposition testimony of Claimant's expert witness, Gary L. Ginsberg, Ph.D., a toxicologist, who testified that "Decedent's brain cancer was caused by working in an environment contaminated with carcinogens, namely nitrosamine and propane sultone" and that "Decedent worked with nitrosamines from 1980 up to 1993, and did not engage in any nitrosamine work from 1995 and beyond." (Board Op. at 5 (citing Ginsberg's Dep. at 19, 162-65, 173, 191, R.R. at 4109a, 4145a, 4147a, 4152a).) The WCJ found that Claimant's experts conceded that Decedent's "exposure to nitrosamines ended by no later than 1993." (FOF ¶ 7(a).) While it may appear that the Board's determination that Decedent was not exposed to any cancer-causing agents after 1995 conflicts with the WCJ's finding that Decedent's exposure to nitrosamines ended by no later than 1993, this two year discrepancy is of no moment as both 1993 and 1995 are well outside the 300 weeks allotted in Section 301(c)(1) and (c)(2) of the Act.
With respect to the 300-week statute of repose set forth in Section 301(c)(2) of the Act, the Board determined that the WCJ incorrectly calculated the applicable date from the date of Decedent's death rather than the date of Decedent's disability. (Board Op. at 9.) Because the record showed that Decedent became disabled in August 2003 when he was diagnosed with brain cancer, the Board determined that Claimant bore the burden of showing that Decedent was injured or exposed to an occupational hazard on or after November 1997, not September 26, 2001. (Board Op. at 9.) Notwithstanding the WCJ's error, the Board determined that the WCJ did not err in denying Claimant's fatal claim petition because there was "no evidence in the record of any alleged exposures in or after 1995, which [was] two years outside the 300 weeks allotted" in Section 301(c)(2) of the Act. (Board Op. at 10.)
Accordingly, the Board concluded that "[b]ecause Claimant failed to prove that Decedent was exposed to any alleged hazard within 300 weeks of either his disability or death, . . . Decedent's brain cancer and resulting death [were] not compensable as either a regular work injury or an occupational disease." (Board Op. at 10.) The Board determined further that, even if Claimant's fatal claim petition was not barred by the 300-week statute of repose, she did not meet her burden of showing that Decedent's brain cancer and resulting death were compensable as either a regular injury or an occupational disease. (Board Op. at 10.) The Board pointed out that the WCJ rejected, as not credible, the opinions of Claimant's experts on causation and the exposure of Decedent to hazardous chemicals at work. (Board Op. at 10-13.)
Finally, the Board denied Claimant's request for a rehearing because Claimant failed "to present some evidence of some hazard with some causal connection to a disease that disabled Decedent within 300 weeks of the last exposure." (Board Op. at 14.) Thus, the Board concluded that "statistical evidence regarding any greater incidence of brain cancer at Spring House cannot change the outcome in this case." (Board Op. at 13-14.) Claimant now petitions this Court for review.
"This Court's scope of review is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether errors of law were made, or whether constitutional rights were violated." Peters Township School District v. Workers' Compensation Appeal Board (Anthony), 945 A.2d 805, 810 n.8 (Pa. Cmwlth. 2008). "Substantial evidence has been defined as such relevant evidence as a reasonable person might accept as adequate to support the conclusion." Wells-Moore v. Workmen's Compensation Appeal Board (McNeil Consumer Products Co.), 601 A.2d 879, 881 (Pa. Cmwlth. 1992). The appellate role is not to reweigh the evidence or review the credibility of witnesses, but to "determine whether, upon consideration of the evidence as a whole, the [WCJ's] findings have the requisite measure of support in the record." Bethenergy Mines, Inc. v. Workmen's Compensation Appeal Board (Skirpan), 531 Pa. 287, 293, 612 A.2d 434, 437 (1992).
I. STATUTE OF REPOSE
In support of this appeal, Claimant first argues that the WCJ and the Board did not properly apply the 300-week statute of repose. Claimant recognizes that the Board determined that the WCJ erred by calculating the applicable date for the statute of repose as 300 weeks prior to Decedent's date of death (July 3, 2007), or September 26, 2001 for purposes of Section 301(c)(2) of the Act; however, Claimant contends that the error warrants reversal of the WCJ's Decision. We disagree.
When reviewing the WCJ's calculation of the applicable dates for purposes of the 300-week statute of repose, the Board determined, with respect to Section 301(c)(2) of the Act, that Claimant bore the burden of proving that Decedent was exposed to an occupational hazard during the 300 weeks before Decedent became disabled due to his brain cancer, not during the 300 weeks prior to his death. (Board Op. at 9.) As such, the Board corrected the WCJ's error and determined that the correct date was November 1997, which was 300 weeks from the August 11, 2003 date that Decedent became disabled. (Board Op. at 9.) The Board's calculation from the date of disability is in accordance with our Supreme Court's decision in City of McKeesport v. Workers' Compensation Appeal Board (Miletti), 560 Pa. 413, 418-19, 746 A.2d 87, 89-90 (2000) (holding that pursuant to Section 301(c)(2), "the proper focal point is whether the decedent's disability occurred within [300] weeks of exposure" (emphasis in original) and "if a disability occurs within 300 weeks of exposure, an employee's subsequent death is compensable" under the Act). Claimant acknowledges in her brief that November 1997 is the correct date for purposes of Section 301(c)(2). (Claimant's Br. at 12.) Moreover, once the Board calculated the correct date, it reviewed the record to determine whether the evidence supported a finding that Decedent was exposed to hazardous chemicals within 300 weeks of his disability. The Board determined that Claimant "did not meet her burden under the correct standard because . . . there is no evidence in the record of any alleged exposure in or after 1995, which is two years outside the 300 weeks allotted." (Board Op. at 10.)
The Board further determined, for purposes of Section 301(c)(1) of the Act, that Claimant was required to prove that Decedent was exposed to a hazard that caused his brain cancer or injury within 300 weeks of his July 3, 2007 death, or on or after October 2, 2001. (Board Op. at 8-9.) This was correct under the Act because, in a death claim, Section 301(c)(1) requires that death occur within three hundred weeks of the injury. 77 P.S. § 411(1). Again, the Board reviewed the record to determine whether the evidence supported a finding that Decedent was exposed to any cancer-causing agent that allegedly caused his brain cancer on or after October 2, 2001. (Board Op. at 9.). The Board determined that "none of the many experts, and none of the many documents entered into evidence, indicated that Decedent was exposed to anything that allegedly caused his brain cancer, including radioisotopes and chemicals such [as] nitrosamines, after 1995, which is well outside the 300 weeks allotted." (Board Op. at 9.)
Accordingly, we decline to reverse the WCJ's Decision or remand for the WCJ to make new findings with regard to Decedent's exposure to an occupational hazard for purposes of the statute of repose. This brings us to the issue of whether Claimant met her burden of proving that Decedent was exposed to an occupational hazard that caused his brain cancer within the 300 weeks allotted under Section 301(c)(1) and (c)(2) of the Act.
II. ALLEGED FACTUAL ERRORS
Claimant argues that the evidence proves that Decedent was exposed to cancer-causing agents from the time he began his employment with Employer until he stopped working due to his brain cancer in August 2003. Claimant asserts that, in finding otherwise, the WCJ failed to consider certain evidence resulting in the WCJ committing several errors of fact in deeming Claimant's experts not credible and Employer's experts credible.
A. PETITIONS
Claimant first contends that the WCJ erroneously failed to consider several petitions she filed to exclude expert opinion testimony that was based on facts not of record. Claimant contends that these petitions made points that were vitally important to her fatal claim petition.
It is well established that an expert's opinion cannot be based upon assumptions which are contrary to the established facts in a workers' compensation proceeding. City of Butler v. Workers' Compensation Appeal Board (Botsis), 708 A.2d 1306, 1310 (Pa. Cmwlth. 1998).
Our review of the record shows that Claimant filed two petitions on August 24, 2009 with the WCJ to exclude the expert testimony of Gary Marsh, Ph.D., F.A.C.E., and Darell Bigner, M.D., Ph.D. (Petition to Exclude the Expert Testimony of Dr. Marsh, R.R. at 3852a-61a; Petition to Exclude the Expert Testimony of Dr. Bigner, R.R. at 3900a-06a.) Dr. Marsh was deposed on March 18 and 19, 2009, (Marsh's Dep., R.R. at 1075a;1252a), and Dr. Bigner was deposed on April 7, 2009, (Bigner's Dep., R.R. at 1361a); therefore, Claimant filed her petitions to preclude the testimony of these experts after they were deposed. The essence of Claimant's petitions is that the experts' opinions are based on facts that are contradicted by the record; thus, the opinions are worthless. In other words, Claimant, through the filing of these petitions, lodged objections to the experts' testimony. In his decision circulated March 12, 2010, the WCJ stated, with regard to the record, that "[b]oth parties have filed numerous objections in this matter. All objections are hereby overruled." (WCJ Decision at 1.) Because the WCJ specifically overruled all objections in this matter, we cannot conclude that the WCJ erroneously failed to consider Claimant's petitions to exclude the deposition testimony of Dr. Marsh and Dr. Bigner.
B. EXPOSURE EVIDENCE
Claimant argues next that the WCJ's credibility determinations with respect to exposure are particularly problematic because these determinations resulted in the erroneous finding that Decedent was not exposed to hazardous chemicals after 1995. Claimant asserts that the WCJ's exposure assessment is predicated on picking and choosing Employer's written policies, while completely ignoring the record facts showing that Employer failed to implement these policies. Claimant contends that Employer's failure to follow its policy not to re-circulate laboratory exhaust air means that, even if Decedent was not personally working with a particular cancer causing chemical on any given day, he would have been exposed when other scientists used the chemical and it was re-circulated through the laboratory air. Claimant contends that this would have been true before and well after the exposure cut-off date of November 1997. As support for her contention that Employer failed to frequently follow this policy, Claimant cites to the testimony on cross-examination of Employer's expert, Gerhard Knutson, Ph.D., CIH.
The portions of Dr. Knutson's testimony cited by Claimant do not support her argument that, because Employer did not follow its policy not to re-circulate laboratory exhaust air, Decedent was exposed to toxic chemicals throughout his working career. See Knutson's Dep. at 202-213, R.R. at 2085a-87a. Instead, in the cited pages of his testimony, Dr. Knutson is responding to questions asked by Claimant's counsel on cross-examination regarding an article written by Dr. Knutson entitled "Testing Containment of Laboratory Hoods: A Field Study." (Knutson's Dep. at 204, R.R. at 2085a.) Moreover, a review of Dr. Knutson's entire testimony on cross-examination reveals that he never offered an opinion or testimony with respect to Employer's policy not to re-circulate laboratory exhaust air. (Knutson's Dep. at 148-296, 317-42, R.R. at 2071a-2108a, 2113a-20a.) Claimant does not offer any other citation to the record challenging the WCJ's finding that Employer's "policy now and at all relevant times was not to recirculate laboratory exhaust air," nor did we find any in our review. (FOF ¶ 3(f).) As such, there is no support for Claimant's assertion that Dr. Knutson's testimony supports a finding that Employer failed to follow its written policies resulting in Decedent's exposure to toxic or hazardous chemicals.
Finding of fact 3(f) states in its entirety as follows:
f. [Employer's] policy now and at all relevant times was not to recirculate laboratory exhaust air. In the early 1980s, before [Decedent] began to work there, [Ledelle] Collier[, an analytical chemist,] discovered through his air sampling work that some exhausted air was reentering some labs at Spring House. Even though, again, no measurement of any chemical ever exceeded acceptable exposure limits, even the lower [Employer] limits, further steps were taken to improve air quality. [Employer] completed modifications to its exhaust ventilation system for Building 4A in 1987. It went well beyond the recommendations of its engineer (Trinity Engineering). The exhaust stacks were raised, exhaust exit velocity increased and most Building 4A laboratory exhaust fans were replaced with larger fans. During the renovations, if a hood was found to be out of compliance, it was not used. Following the renovations, all hoods in Building 4A fully complied with company standards. There is no evidence of, or allegation of, air quality deficiencies in this record after 1987.(FOF ¶ 3(f).)
Claimant contends further that the evidence shows that Decedent was exposed to cancer-causing chemicals through the last days of his employment in 2003 because he never stopped working as a laboratory scientist. Claimant again asserts that the WCJ ignored the testimony of Employer's expert, Dr. Knutson, that it is inevitable that a scientist using a fume hood will receive some amount of inhalation exposure because the fume hood cannot keep the scientist shielded and protected from 100 percent of the chemicals and substances being used in experiments. Claimant contends that Dr. Knutson testified that it is a fact of life that some amount of chemicals will re-enter into the breathing zone in the laboratory and, as a result, Dr. Knutson opined that Decedent was indeed exposed to toxic chemicals in the workplace. Claimant asserts that the WCJ completely ignored this crucial concession by concluding that Decedent's working conditions could not have exposed him to hazardous chemicals because he worked under properly maintained and tested fume hoods.
Our review of Dr. Knutson's deposition testimony reveals that Claimant relies exclusively on a small portion of Dr. Knutson's testimony on cross-examination as support for her assertion that Decedent was exposed to toxic chemicals in the work place until his last day of employment in August 2003. Dr. Knutson was asked on cross-examination whether he believed that the design at Employer's Spring House facility permitted re-entry of contaminants into the indoor air and whether this re-entry was an example of a poor, faulty design. (Knutson's Dep. at 209, R.R. at 2086a.) Dr. Knutson replied, "Not with respect to the operation of the laboratory hood." (Knutson's Dep. at 210, R.R. at 2087a.) Dr. Knutson explained further, with respect to the design of the facility, that: "Re-entry in laboratory systems is a fact of life. It is nearly impossible to design a system that has zero re-entry. Good design approaches in laboratory ventilation strive to minimize re-entry." (Knutson's Dep. at 210, R.R. at 2087a.) Dr. Knutson was then asked on cross-examination the following question: "If a chemist is working with chemicals and a fume hood, is it your opinion that some amount of exposure is inevitable?" (Knutson's Dep. at 216, R.R. at 2088a.) Dr. Knutson responded "Yes." From this testimony, Claimant concludes that Dr. Knutson opined that Decedent was indeed exposed to toxic chemicals in the workplace. However, we could find no such conclusion or opinion by Dr. Knutson in his deposition testimony based on the foregoing testimony cited by Claimant. Moreover, Dr. Knutson's testimony on cross-examination is insufficient to make such a conclusion and does not negate the credible evidence relied upon by the WCJ in finding as follows:
We note that Claimant's citations to portions of Dr. Knutson's 345 page deposition testimony as support for her assertions are not accurate. The record is this matter exceeds 4,000 pages, which consists primarily of the deposition testimony of the several expert witnesses testifying on behalf of Claimant and Employer. As such, this Court understands that an occasional citation to an expert's testimony may not be accurate; however, where a party chooses to rely upon citations to such testimony to support an argument vital to his or her appeal, it would be helpful to the Court if the citations were correct. This Court, nonetheless, reviewed Dr. Knutson's entire testimony on cross-examination and was able to find the correct citations.
h. This Judge finds after reviewing the evidence related to the air quality tests that the testimony of James Man, Alisa Kreft, Ronald Dalton and Gerhard Knutson, PhD, is credible and worthy of belief.
[Employer] established exposure limits for virtually all chemicals and it exceeded industry standards for implementation of those standards. It tested the air, maintained and tested laboratory hoods and sought to improve air quality. The testimony of Ronald Schaible[, Claimant's expert,] is rejected as not credible. Mr. Schaible lacks the qualifications and familiarity to opine with regard to research lab practices. He failed to review relevant testimony and his attempt to offer a medical opinion or toxicological opinion without the necessary training undermines his credibility. Mr. Schaible's incredible testimony is to be contrasted with that of Dr. Knutson, who restricted his testimony to industrial hygiene issues, was very familiar with applicable research lab practices and standards and reviewed and was familiar with the record as it pertained to air quality. With regard to air quality, the testimony of Edward Lashen and James Mair that air sampling results were circulated to the workers and the ongoing work was widely known throughout the workforce is also deemed credible and worthy of belief. Their testimony is uncontradicted.(FOF ¶¶ 3(h), 3(i).) In addition, the fact that there is evidence that would support the findings that Claimant would prefer does not render the findings actually made by the WCJ erroneous. See Empire Steel Castings, Inc. v. Workers' Compensation Appeal Board (Cruceta), 749 A.2d 1021, 1024 (Pa. Cmwlth. 2000) (stating that "it does not matter that there is evidence in the record which supports a factual finding contrary to that made by the WCJ, rather, the pertinent inquiry is whether there is any evidence which supports the WCJ's factual finding").
i. This Judge also notes that the bulk of evidence pertaining to alleged air quality deficiencies concerned a period of time before [Decedent] began employment for [Employer] and before he began working in Building 4B. None of the evidence Claimant offers in support of air quality deficiencies pertains specifically to [Decedent's] laboratory air or laboratory fume hood during the relevant timeframe.
Next, Claimant argues that the WCJ failed to consider evidence showing that Decedent was exposed to carcinogenic ionizing radiation throughout his employment at Spring House. Claimant contends that the WCJ made two erroneous factual determinations with respect to ionizing radiation exposure: (1) the WCJ determined that such exposure could not have reached Decedent because he was working in a fume hood; and (2) the WCJ concluded that ionizing radiation cannot cross the blood brain barrier. Additionally, Claimant argues that the WCJ's counterfactual determinations must be reversed because Employer concedes that Decedent was exposed to ionizing radiation and that ionizing radiation is a known and established cause of brain cancer. Specifically, Claimant contends that the WCJ's findings of fact 4(a) and 4(b) are not supported by substantial evidence.
As support for Employer's concessions, Claimant does not cite to any record evidence, but cites instead to Employer's statement in its "Memorandum in Opposition to Claimant's Fatal Claim Petition" submitted to the WCJ, that "the testimony is undisputed that [Decedent's] potential exposure to radiation from work with radioisotopes was insignificant as compared to that necessary to cause a brain tumor." (Employer's Memorandum in Opposition to Claimant's Fatal Claim Petition at 73-74, R.R. at 3437a-38a.).
In findings of fact 4(a) and (b), the WCJ found as follows:
a. Between February 1984 and April 1987, [Decedent] worked with several chemical compounds tagged with radioactive isotopes of certain elements. His use of these radioisotopes was subject to approval by [Employer's] Research Division Radiation Safety Committee. Standard operating procedure for use of radioisotopes required safety eyeglasses, lab coats, latex disposable gloves and use of a half-inch acrylic shield. The work was also performed with a laboratory hood, thereby preventing radioactive material from getting into the air or [Decedent's] breathing zone. [Decedent] was subject to monitoring including a ring monitor and film badges while working with radioisotopes.
b. [Employer's expert,] Dr. Robert Reiman, [MSPH, MD,] using the records concerning [Decedent's] use of radioisotopes, concluded that [Decedent] would have had 0 centigray of radiation exposure
from external radiation. Dr. Reiman calculated potential internal exposure on the very conservative assumption that [Decedent] was an unskilled worker not using protective gloves and on the additional assumption that the P-32 isotope would cross the blood-brain barrier (though, in fact, it would not). With these assumptions, he calculated .0000075 and .75 centrigray [sic] of potential exposure. He termed this a very low dose, the equivalent of living in Denver (or any other city above sea level) for a year or two.(FOF ¶¶ 4(a), (b).) As support of her assertion that the foregoing findings are not supported by substantial evidence, Claimant cites to scientific articles that purportedly dispute the WCJ's findings and argues that the WCJ's findings are based on a completely inaccurate understanding of basic science. However, Claimant does not cite to any credible evidence in the record contradicting the WCJ's findings. Moreover, based upon the WCJ's finding of fact 4(c), Employer's alleged concessions that Decedent was exposed to ionizing radiation and that such exposure causes brain cancer is of no moment because Claimant failed to establish that Decedent's limited exposure to radioisotopes caused him to develop brain cancer. Finding of fact 4(c) provides as follows:
c. Claimant presented no testimony to show that [Decedent] was exposed to or used radioisotopes after April 1987. The Claimant's experts do not offer a competent opinion that [Decedent's] limited use of radioisotopes from February 1984 until April 1987 caused him to develop brain cancer. The testimony and opinions of Dr. Reiman are credible and accepted as fact. The testimony of [, Claimant's expert,] Dr. David Greenly[, Ph.D., who was employed by Employer] with regard to the timeframe [Decedent] used radioisotopes and the safety protocols in place and monitoring data is credible. It is found as a fact that the level of potential exposure to radiation [Decedent] may have had is insufficient to cause brain cancer. Dr. Reiman is extraordinarily qualified in this field. He is an assistant professor at Duke University and Associate Director of the Radiation Safety Division, Occupational and Environmental
Safety Officer for Duke University and Duke University Medical Center. His testimony is also unrebutted.(FOF ¶ 4(c).) Accordingly, Claimant's argument that findings of fact 4(a) and (b) are erroneous does not provide a basis to reverse the WCJ's Decision.
C. CAUSATION EVIDENCE
Claimant argues that, given the WCJ's incorrect findings with respect to general exposure and ionizing radiation, the findings with respect to causation were also inaccurate. Claimant contends that because she has shown that Decedent was regularly exposed to hazardous levels of chemicals and ionizing radiation, which causes brain cancer, up through the time he stopped working at Spring House, the WCJ should not have dismissed the testimony of her experts, Gary L. Ginsberg, Ph.D., and Sidney Finkelstein, M.D., that Decedent's brain cancer was caused by exposure to chemicals and ionizing radiation in the workplace. Claimant argues that the dismissal of this evidence on causation was a factual error warranting reversal.
As was within his province, the WCJ rejected the testimony of Dr. Ginsberg and Dr. Finkelstein as neither credible nor persuasive because: (1) "Dr. Ginsberg acknowledged that [the] exposure date is important but then ignored the lack of same pertaining to [Decedent] in order to render his opinions"; and (2) "Dr. Finkelstein's theories are not recognized in the scientific community. It is notable that in finding his opinion not credible that he has only applied his theory for litigation." (FOF ¶ 5(l).) Because this Court cannot reweigh the evidence and overturn credibility determinations on appeal, we cannot conclude that the WCJ's findings on causation were inaccurate. See Hayden v. Workmen's Compensation Appeal Board (Wheeling Pittsburgh Steel Corp.), 479 A.2d 631, 635 (Pa. Cmwlth. 1984) (stating that credibility determinations are well within the province of the WCJ and determinations as to witness credibility and evidentiary weight are not subject to appellate review).
D. EPIDEMIOLOGICAL EVIDENCE
Claimant argues that the WCJ should not have accepted Employer's epidemiological evidence as credible because it failed to consider all incidences of brain cancer at Employer's facilities and because Employer's studies were refuted by the National Institute for Occupational Safety and Health. Therefore, Claimant contends, Employer's epidemiological evidence was not based on fact.
Claimant's arguments on this issue actually go to the weight of the evidence presented. As we have previously recognized, in workers' compensation matters, "the WCJ is the ultimate fact finder and is empowered to determine witness credibility and evidentiary weight." Griffiths v. Workers' Compensation Appeal Board (Red Lobster), 760 A.2d 72, 76 (Pa. Cmwlth. 2000). Determinations as to credibility and evidentiary weight are not subject to appellate review. Hayden, 479 A.2d at 635.
III. REQUEST FOR REHEARING
Finally, Claimant argues that the Board erred by denying her request for a rehearing based upon newly discovered evidence; specifically, the University of Minnesota study that Claimant contends is crucial evidence that would certainly change the outcome of this case. Claimant argues that the University of Minnesota study provides conclusive evidence that the WCJ's credibility determinations as to the important epidemiological evidence are factually unsupportable. Claimant asserts that this epidemiological evidence has significance with respect to the ultimate theory of causation in this case and also conclusively shows that the rate of brain cancer is elevated among workers at Employer's Spring House facility, meaning that Decedent suffered from an occupational disease as set forth in Section 108(n) of the Act, 77 P.S. § 27.1(n), termed the "catch-all" provision. In short, Claimant contends that the University of Minnesota study discredits Employer's experts and supports Claimant's experts.
The University of Minnesota study sets forth three key messages: (1) "There is an excess of death from brain cancer among people ever employed at the Spring House facility"; (2) "The analysis did not clearly identify a job or workplace exposure that explains this excess of brain cancer deaths"; and (3) "No other disease categories had higher than expected mortality rates." (R.R. at 3537a.) The study further sets forth the following conclusion:
The cohort at Spring House experienced a higher than expected mortality rate for brain cancer. The analysis did not identify a consistent pattern with select, work-related chemical exposures that would explain this apparent excess. Based on existing exposure measures, current exposures to the chemicals of interest appear to be well-controlled and general workplace conditions appear to be safe. Although the brain cancer excess was not clearly linked to specific exposures at Spring House, it is not entirely possible to rule out a workplace explanation. Likewise, the possibility exists for this finding to represent random clustering of this rare disease or to be related to confounding by non-occupational risk factors.(R.R. at 3540a.)
Section 426 of the Act provides, 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 [WCJ]." 77 P.S. § 871. The Board has broad powers to grant a rehearing, based on evidence discovered after the initial record is closed, if justice requires. Paxos v. Workmen's Compensation Appeal Board (Frankford-Quaker Grocery), 631 A.2d 826, 831 (Pa. Cmwlth. 1993). The grant or denial of a rehearing of a workers' compensation case is left to the discretion of the Board and will not be disturbed by this Court absent a clear abuse of discretion. Monaci v. Workmen's Compensation Appeal Board (Ward Trucking), 541 A.2d 60, 63 (Pa. Cmwlth. 1988).
Added by Section 6 of the Act of June 26, 1919, P.L. 642, as amended, 77 P.S. 871. --------
Here, the Board denied Claimant's request stating as follows:
As part of her appeal, Claimant also requests a remand so the WCJ can consider a 2010 study from the University of Minnesota that addresses the incidences of brain cancer at the Spring House facility, which she believes is relevant to her claim under the "catch-all" occupational disease provision. However, in light of our conclusion that Claimant did not meet her burden with respect to the 300 week statute of repose that applies to all occupational diseases, and because she failed to reasonably identify or describe some work-related causative factor of Decedent's brain cancer, the statistical evidence regarding any greater incidence of brain cancer at Spring House cannot change the outcome in this case. Even if Claimant could establish a greater incidence of brain cancer at that facility, the Act requires more than mere statistics under the "catch-all" occupational disease provision. Rather, the Act requires Claimant to present some evidence of some hazard with some causal connection to a disease that disabled Decedent within 300 weeks of the last exposure, and Claimant has simply not provided sufficient evidence to meet her burdens in those respects.(Board Op. at 13-14 (footnote omitted).) Upon review of the WCJ's findings and conclusions and the University of Minnesota study, we conclude that the Board did not abuse its discretion by denying Claimant's request for a rehearing for the WCJ to consider the study. The fact that the study concludes that Employer's employees who worked at Spring House experienced a higher than expected mortality rate for brain cancer does not change the reality that Claimant did not meet her burden under either Section 301(c)(1) or (c)(2) of the Act to show that Decedent was exposed to an occupational hazard that allegedly caused his brain cancer during the 300 weeks before Decedent became disabled or within 300 weeks of his July 3, 2007 death. As determined by the Board, there is no evidence in the record of any alleged exposure to an occupational hazard in or after 1995.
For the foregoing reasons, we are constrained to affirm the Board's Order.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, October 15, 2013, the Order of the Workers' Compensation Appeal Board entered in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
CONCURRING OPINION BY SENIOR JUDGE FRIEDMAN
Because I agree with the majority's determination that Kuo-Hom Hsu's fatal claim petition is barred by the 300-week statute of repose, I concur in the result.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
Eleanor Abrams, Executrix of the Estate of Kenneth Abrams v. Pneumo Abex Corporation, 602 Pa. 627, 648-49, 981 A.2d 198, 211 (2009).
Id. This Court has interpreted the language of Section 301(c)(2) to require that a claimant must establish, by unequivocal medical evidence, the existence of the occupational disease and that the disease was a substantial contributing factor to death or disability. Bell v. Workmen's Compensation Appeal Board (Gateway Coal Co.), 545 A.2d 430, 433 (Pa. Cmwlth. 1988).
Id. A disease which is not one of the diseases specifically enumerated in Section 108 can be deemed an occupational disease if a claimant satisfies all the requirements of the "catchall" provision set forth in subsection (n):
(n) 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. For the purposes of this clause, partial loss of hearing in one or both ears due to noise; and the diseases silicosis, anthraco-silicosis and coal workers' pneumoconiosis resulting from employment in and around a coal mine, shall not be considered occupational diseases.77 P.S. § 27.1(n). The significance of establishing that a claimant has an occupational disease under Section 108 is that the claimant then becomes presumptively entitled to benefits. As pointed out by our Supreme Court:
Indeed, under the Act, it is the claimant seeking to recover for an occupational disease who is given a procedural or evidentiary advantage. Once such a claimant establishes that he has contracted an occupational disease and that the disease, at or immediately before the date of disability, was a hazard in his occupation or industry, he then becomes entitled to a non-conclusive presumption that his occupational disease arose out of and in the course of his employment.Pawlosky v. Workmen's Compensation Appeal Board and Latrobe Brewing Company, 514 Pa. 450, 462, 525 A.2d 1204, 1211 (1987) (citing Section 301(e) of the Act, 77 P.S. § 413).