Opinion
No. 2197 C.D. 2008.
Submitted: April 3, 2009.
Filed: July 20, 2009.
BEFORE: McGINLEY, Judge; JUBELIRER, Judge; FLAHERTY, Senior Judge.
OPINION NOT REPORTED
Terry Stokes (Claimant) petitions for review from the order of the Workers' Compensation Appeal Board (Board) which affirmed the Workers' Compensation Judge's (WCJ) denial of his Claim Petition.
Claimant worked as a volunteer First Assistant Fire Chief for East Donegal Township (Employer). Claimant filed a Claim Petition on July 13, 2006, alleging he sustained a work-related injury described as "inhalation" on January 22, 2006, as a result of "smoke inhalation while fighting a fire" at Nissley Vineyards (the Winery) in Bainbridge, Pennsylvania. Claim Petition for Workers' Compensation, July 13, 2006, at 1.
At hearing on December 6, 2006, Claimant amended the description of his injury from "inhalation" to "inhalation resulting in toxic reaction to minor carbon monoxide exposure and aggravation of underlying mitochondrial disorder predisposing to migraines." Notes of Testimony, December 6, 2006 (N.T. 12/6/06), at 8; Reproduced Record (R.R.) at 108a.
Claimant testified he was responsible for leading a crew of six firefighters into the building to locate the fire. Notes of Testimony, September 6, 2006 (N.T. 9/6/06), at 6-7; R.R. at 12a-13a. As Claimant proceeded to the second floor of the Winery, he did not observe any smoke. Claimant felt the door to the second floor and determined it was not hot. However, when he opened the door he was exposed to a "big blast of smoke." N.T. 9/6/06 at 7; R.R. at 13a. Claimant immediately closed the door and directed his crew to put on their protective equipment. Claimant was not wearing a mask because it was Employer's policy to "try to save that for when we get to the fire floor" and "there was no evidence that there was a fire on the second floor or smoke, because everything was venting out the top of the third floor." N.T. 9/6/06 at 8; R.R. at 14a. After putting on his protective equipment, Claimant fought the fire for an additional thirty minutes. N.T. 9/6/06 at 7-8; R.R. at 13a-14a.
When Claimant emerged from the fire he received medical assistance for faintness, vision problems, and unusual sensations in his legs. N.T. 9/6/06 at 9; R.R. at 15a. Claimant's vital signs were checked in the ambulance on the way to Lancaster General Hospital (Lancaster General). Claimant's blood pressure was "dangerously" elevated. N.T. 9/6/06 at 12; R.R. at 18a. Claimant received emergency treatment at Lancaster General and was . . . released with a diagnosis of "hypertension" and "mild cephalgia resolved." Notes of Testimony, March 29, 2007 (N.T. 3/29/07), at 23; R.R. at 498a. Subsequently, Claimant received emergency treatment from Lancaster General on three additional occasions because he was "losing . . . [his] ability . . . to function. I had weakness, sweating. I had problems sleeping. Light bothered me. . . ." N.T. 9/6/06 at 15; R.R. at 21a.
Adam Kosheba, Jr. (Kosheba), a Fire Chief for Employer, was present at the fire. He testified that he recalled different materials that were on fire, including thermal set plastic containers, stainless steel containers, wood, cardboard boxes, roof tar, and asphalt material. Notes of Testimony, December 19, 2006, (N.T. 12/19/06), at 25-28; R.R. at 294a-297a. There are four common byproducts emitted during a fire: (1) carbon dioxide, (2) hydrogen cyanide, (3) hydrogen chloride, and (4) carbon monoxide. N.T. 12/19/06 at 33; R.R. at 302a.
Claimant was referred to David Newman-Toker, M.D (Dr. Newman-Toker), a board-certified neurologist with expertise in neuropathy and neurotology at Johns Hopkins Hospital. Dr. Newman-Toker diagnosed Claimant as being in a "status migrainous" pattern, where his brain is "stuck in a migraine" so that he is "persistently hyper-responsive to external stimuli. . . ." Deposition Testimony of David Newman-Toker, M.D. (Dr. Newman-Toker Deposition), March 23, 2007, at 21; R.R. at 388a. Dr. Newman-Toker concluded that Claimant's exposure to carbon monoxide during the fire at the Winery triggered his migraine pattern:
The combination of a constellation of symptoms that otherwise have no other obvious medical cause, the temporal relationship between the exposure and the symptoms onset and ultimately the potential relationship between toxic chemicals that might have been present in that inhaled smoke and known mechanisms for injury to the nervous system by such chemicals such as carbon monoxide. The cumulative clinical picture and diagnosis in my opinion is that there was exposure to a neurotoxin likely carbon monoxide that triggered the onset of these symptoms. . . .
Dr. Newman-Toker Deposition at 36; R.R. at 403a. He explained that Claimant's condition was not unusual despite his "brief exposure" to the smoke because "the medical literature . . . [is] quite clear that inhalation of smoke can lead to significant exposures to carbon monoxide even when those exposures might . . . seem to be trivial. . . ." Dr. Newman-Toker Deposition at 31; R.R. at 398a.
Employer presented the testimony of Jason Tressler (Tressler), a volunteer firefighter for the Middletown, Pennsylvania Fire Department. Tressler responded to the Winery fire and was assigned to Claimant's group of firefighters. He described the smoke as "light gray" and that the color signified that there were "products of combustion there but . . . something is burning carbon fibers in it but most of the . . . really bad smoke was probably venting out through the roof of the building . . . the superheated gases. . . ." N.T. 12/6/06 at 23-34; R.R. at 123a-124a.
Jack Snyder, M.D., J.D., and Ph.D. (Dr. Snyder), is board-certified in toxicology, medical toxicology, toxicological chemistry, clinical chemistry, occupational medicine, legal medicine, quality assurance in utilization review and anatomic, clinical and chemical pathology. He testified on behalf of Employer that he has experience in the "area of fires and firemen" because he "served as the Occupational Medicine Physician and Clinical Toxicologist for the Philadelphia Fire Department during . . . [his] 15 years [of employment] at Thomas Jefferson University." N.T. 3/29/07 at 7; R.R. at 482a.
Dr. Snyder reviewed the transcripts, photographs, videos and medical records. Dr. Snyder opined that carbon monoxide was not necessarily present at the Winery fire because carbon monoxide is only the product of "incomplete combustion where there is insufficient oxygen as opposed to complete combustion where the byproduct would be carbon dioxide." N.T. 3/29/07 at 12; R.R. at 487a. Dr. Snyder explained that there was neither proof Claimant was exposed to carbon monoxide nor any basis to presume that being exposed to fire leads to a biologically significant inhalation of carbon monoxide. Dr. Snyder opined that even if Claimant was exposed to carbon monoxide it was only for a brief interval, which most likely resulted in a maximum of four breaths, and the medical literature does not demonstrate that any central nervous system injury would result from two, three or four breaths. N.T. 3/29/07 at 60-61; R.R. at 535a-536a.
Dr. Snyder explained that exposure to carbon monoxide is most reliably diagnosed by a blood sample taken within the first six hours after the event. N.T. 3/29/07 at 16; R.R. at 491a. Dr. Snyder added that "[i]n the absence of that information, there is no presumption of carbon monoxide poisoning." N.T. 3/29/07 at 16; R.R. at 491a. He opined that "the symptoms that he [Claimant] reported in that first few hours . . ." could not "be explained by an exposure to any environmental chemical. Most importantly, cannot be explained by carbon monoxide. . . ." N.T. 3/29/07 at 31; R.R. at 506a. Rather, Dr. Snyder concluded that the most common explanation for Claimant's symptoms was uncontrolled high blood pressure.
The WCJ denied and dismissed Claimant's Claim Petition. The WCJ accepted Claimant's testimony describing the events at the Winery as credible. The WCJ also accepted Kosheba's and Tressler's testimony as credible, but only in part. The WCJ accepted Dr. Snyder's testimony as more credible and persuasive than that of Dr. Newman-Toker. The WCJ determined that Claimant neither established he was exposed to toxic chemicals, specifically carbon monoxide, on January 22, 2006, nor a causal connection between his injury and his employment. The WCJ made the following findings of fact:
. . . .
2. . . . The Judge finds the testimony of Dr. Snyder is more credible and persuasive than that of Dr. Newman-Toker because Dr. Snyder has a board certification in Toxicology and Dr. Neman-Toker does not have such expertise, because Dr. Snyder has experience as an occupational medicine physician and clinical toxicologist for a metropolitan fire department and Dr. Newman-Toker does not have such experience, because no evidence established the presence of carbon monoxide at the scene of the fire in issue and in support of Dr. Newman-Toker's diagnoses of the Claimant's conditions, and because no evidence established the Claimant's exposure to and inhalation of carbon monoxide in support of Dr. Newman-Toker's diagnoses of the Claimant's conditions. . . . .
WCJ Decision, February 26, 2008, Findings of Fact (F.F.) Nos. 2, at 1; R.R. at 577a.
Claimant appealed to the Board. On July 30, 2008, Claimant filed a Motion for Remand alleging that Dr. Snyder misrepresented his qualifications because he was never employed by the City of Philadelphia Fire Department and requested a remand to the WCJ for a hearing on Dr. Snyder's qualifications. On October 20, 2008, the Board affirmed the decision of the WCJ and denied Claimant's Motion for Remand.
On appeal, Claimant raises two issues: (1) whether Claimant satisfied his burden of proving he suffered a compensable injury because the uncontroverted testimony establishes that Claimant directly inhaled smoke, suffered adverse effects immediately after emerging from the fire and there is no medical evidence that Claimant did not suffer any injury; and (2) whether the Board abused its discretion when it failed to remand this matter because the expert, on whose opinion the WCJ relied in denying the Claim Petition, materially misrepresented his qualifications.
This Court's review is limited to a determination of whether an error of law was committed, whether necessary findings of fact were supported by substantial evidence, or whether constitutional rights were violated. Vinglinsky v. Workmen's Compensation Appeal Board (Penn Installation), 589 A.2d 291 (Pa.Cmwlth. 1991).
I. Compensable Injury
In a claim proceeding, the claimant bears the burden of proving all elements necessary for an award. Inglis House v. Workers' Compensation Appeal Board (Reedy), 535 Pa. 135, 634 A.2d 592 (1993). The claimant must establish that he sustained an injury during the course and scope of his employment and that the injury is causally related to the employment.Delaware County v. Workers' Compensation Appeal Board (Baxter-Coles), 808 A.2d 965 (Pa.Cmwlth. 2002), appeal denied, 573 Pa. 699, 825 A.2d 1262 (2003). Where the causal relationship between the work incident and the alleged disability is not obvious, unequivocal medical evidence is necessary to establish the causal connection. Jeannette District Memorial Hospital v. Workmen's Compensation Appeal Board (Mesich), 668 A.2d 249 (Pa.Cmwlth. 1995).
In order to meet his burden Claimant had to establish he was exposed to carbon monoxide on January 22, 2006, and that the exposure caused his injuries.
Claimant argues that the WCJ disregarded an unquestionable scientific fact: "carbon monoxide is present in every fire." Claimant's Brief at 23. Further, given that scientific fact, Claimant contends that Dr. Snyder's opinions to the contrary have no probative value.
Critically, this Court must determine whether the WCJ found a fact (i.e. "no evidence established the presence of carbon monoxide at the scene of the fire in issue") contrary to a universal scientific fact. WCJ Decision, F.F. No. 2 at 1; R.R. at 577a. In order for Claimant to prevail he had to establish that it is a universal scientific fact that carbon monoxide is present in every fire.
Courts may properly refuse to admit evidence that is contrary to scientific principles or in conflict with natural laws. Bethlehem Mines Corporation v. Workmen's Compensation Appeal Board (Vinansky), 398 A.2d 725, 728 (Pa.Cmwlth. 1979). "However, where the Court cannot say as a matter of law that the testimony of a witness is contrary to scientific principles or the laws of nature, the question of the conflict of evidence is still for the fact-finder to resolve." Id.
In the present controversy, the scientific material cited by Claimant in his brief to demonstrate a universal scientific fact falls below the accepted standard because of the presence of such words as "relatively," "may," and "likely." See Id. Moreover, while Claimant's citations are related to the science of fires, there is not a single definitive scientific opinion cited by Claimant that confirms the specific universal fact argued: "carbon monoxide is present at every fire." The scientific conclusions offered by Claimant are not on point and fall short of such "universally accepted scientific facts as the law of gravity or the effect of the suction power (or lack thereof) of a moving freight train on a car parked on an upgrade with its brakes set." Id.
In Claimant's brief, Claimant quotes from an investigation conducted by the National Institute for Occupational Safety and Health:
. . . .
Firefighters' exposure to carbon monoxide represents a relatively constant occupational hazard. . . . Exertion levels and, therefore, ventilatory rates may be so great during firefighting that even in moderate or low levels of atmospheric carbon monoxide the COHb can rise to dangerous levels within minutes. (Emphasis added).
Additionally, Claimant quotes Toxicity of Fire Smoke, Crit. Rev. Toxicol. 2002 Jul; 32 (4); 259-89, which stated that "[a]n analysis of toxicological findings in fire and nonfire deaths and the results of animal exposures to smoke from a variety of burning materials indicate that carbon monoxide is still likely to be the major toxicant in modern fires." (Emphasis added).
This Court is unable to conclude as a matter of law that Claimant established as a universally accepted scientific fact that carbon monoxide is present at every fire. As a result, the question of whether carbon monoxide was present was within the WCJ's discretion to decide.
Claimant did not present any expert testimony or scientific evidence to support his claim that carbon monoxide was present. To the contrary, Employer presented expert testimony that carbon monoxide was not present at the Winery fire. The WCJ relied upon Dr. Snyder's testimony that carbon monoxide is not always found in a fire because carbon monoxide is only found when there is an incomplete combustion. WCJ Decision, F.F. No. 38, at 7; R.R. at 583a. Further, Dr. Snyder concluded that Claimant's symptoms did not correlate with carbon monoxide exposure. WCJ Decision, F.F. No. 47, at 8; R.R. at 584a. Dr. Snyder diagnosed Claimant with hypertension attributable to his uncontrolled high blood pressure, not exposure to carbon monoxide. WCJ Decision, F.F. Nos. 24, 51 at 5, 9; R.R. at 581a, 585a. The WCJ credited Dr. Snyder's testimony and found there was no evidence to establish that carbon monoxide was present at the Winery fire. WCJ Decision, F.F. No. 2 at 1; R.R. at 577a.
The WCJ is the ultimate finder of fact and has complete authority over matters of credibility, conflicting medical evidence and evidentiary weight. Westmoreland County v. Workers' Compensation Appeal Board (Fuller), 942 A.2d 213, 216 n. 6 (Pa. Cmwlth 2008). The WCJ is free to accept or reject, in whole or in part, the testimony of any witness, including medical experts. Campbell v. Workers' Compensation Appeal Board (Pittsburgh Post Gazette), 954 A.2d 726, 729 (Pa.Cmwlth. 2008). Therefore, the WCJ was authorized to reject the testimony of Claimant's medical expert, Dr. Newman-Toker, because his opinion that Claimant's symptoms were caused by exposure to carbon monoxide was for the fact finder to evaluate. WJC Decision, F.F. No. 26 at 5; R.R. at 581a. This Court discerns no error.
II. Motion for Remand
Claimant argues that the Board erred in failing to grant a remand based upon additional after-discovered evidence of Dr. Snyder's qualifications, specifically that he was never employed by the City of Philadelphia Fire Department.
Dr. Snyder testified that he was board-certified in toxicology, medical toxicology, toxicological chemistry, clinical chemistry, occupational medicine, legal medicine, quality assurance in utilization review and anatomic, clinical and chemical pathology. N.T. 3/29/07 at 6; R.R. at 481a. He stated that he served as the Occupational Medicine Physician and Clinical Toxicologist for the Philadelphia Fire Department during 15 years of employment at Thomas Jefferson University. N.T. 3/29/07 at 7; R.R. at 482a.
In Claimant's Motion for Remand he challenged Dr. Snyder's connection to the Philadelphia Fire Department during his employment with Thomas Jefferson University. Claimant offered a copy of an email from Celia O'Leary (O'Leary), the Deputy Personnel Director of the City of Philadelphia, Office of Human Resources, advising that Dr. Snyder had not been an employee of the City of Philadelphia. Motion for Remand, July 30, 2008, No. 4 at 1; R.R. at 595(a).
Claimant argues that the WCJ clearly predicated her decision upon Dr. Snyder's credentials because she found the testimony of Dr. Snyder to be more credible than that of Dr. Newman-Toker, in part, because of Dr. Snyder's experience as an occupational medicine physician and clinical toxicologist for a metropolitan fire department while Dr. Newman-Toker had no such experience. WJC Decision, F.F. No. 2 at 1; R.R. at 577a. As a result, Claimant argues that a remand was warranted because Dr. Snyder misrepresented his credentials which were most relevant to the WCJ's evaluation of his testimony, calling into question Dr. Snyder's entire opinion.
The decision to grant or deny a request for rehearing or remand is left to the discretion of the Board. See Westmoreland County, 942 A.2d at 220. The Board may deny a request for remand where the claimant has failed to demonstrate how the evidence would change the outcome of the case. Cisco v. Workmen's Compensation Appeal Board (A P Tea Company), 488 A.2d 1194, 1196 (Pa.Cmwlth. 1985). This Court may reverse the Board's decision only for an abuse of that discretion. Stitchic v. Workers' Compensation Appeal Board (Trumbull Corporation), 782 A.2d 1113, 1136 (Pa.Cmwlth. 2001).
First, Claimant offered after-discovered evidence that Dr. Snyder was never employed by the City of Philadelphia's Fire Department. Dr. Snyder, however, never testified that he was an employee of the City of Philadelphia. Instead, he testified that he "served as the Occupational Medicine Physician and Clinical Toxicologist for the Philadelphia Fire Department during [his] 15 years [of employment] at Thomas Jefferson University." N.T. 3/29/07 at 7; R.R. at 482a. Consequently, the email from O'Leary, which states that Dr. Snyder was not an employee of the City of Philadelphia, is not clearly relevant and a mischaracterization of the record.
Second, a review of the record reveals that the WCJ's finding that Claimant did not sustain a work-related injury was predicated upon Claimant's treatment records from Lancaster General Hospital which did not indicate that Claimant suffered from "status migrainous" pattern as diagnosed by Dr. Newman-Toker, as well as the expert testimony provided by Dr. Snyder. WCJ Decision, F.F. Nos. 13-17 at 3-4; R.R. at 579a-580a.
Third, even though the WCJ relied upon Dr. Snyder's testimony, the WCJ provided additional reasons, aside from Dr. Snyder's service with the Philadelphia Fire Department, why his testimony was more credible than that of Dr. Newman-Toker: (1) Dr. Snyder was board-certified in Toxicology; (2) the evidence did not establish that carbon monoxide was present at the Winery fire in support of Dr. Newman-Toker's diagnoses; and (3) the evidence did not establish Claimant was exposed to and inhaled carbon monoxide in support of Dr. Newman-Toker's diagnoses. WCJ Decision, F.F. No. 2 at 1; R.R. at 577a. Moreover, although the WCJ highlighted Dr. Snyder's service with the Philadelphia Fire Department, the WCJ also emphasized his service as a Medical Examiner in the Commonwealth of Virginia where he investigated fire-related deaths and treated individuals with carbon monoxide poisoning. WCJ Decision, F.F. No. 33 at 6; R.R. at 582a. Contrary to Claimant's assertions, the WCJ's factual and credibility findings were not based solely on Dr. Snyder's testimony about his experience with a metropolitan fire department.
At best, Claimant's arguments go more to the "weight and credibility of the evidence . . . [than to] its competency." Casne v. Workers' Compensation Appeal Board (STAT Couriers, Inc. State Workers' Insurance Fund), 962 A.2d 14, 17 (Pa.Cmwlth. 2008). In Casne, 962 A.2d at 19, this Court held that "[w]e must view the reasoning as a whole and overturn the credibility determination only if it is arbitrary and capricious or so fundamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render it irrational." Even if Claimant were permitted to present the proffered evidence on remand, the evidence would not justify overturning the WCJ's credibility finding, given her overall reasoning, as set forth in the decision. The Board did not abuse its discretion when it denied Claimant's Motion for Remand.
Accordingly, this Court affirms.
BERNARD L. McGINLEY, Judge
ORDER
AND NOW, this 20th day of July, 2009, the order of the Workers' Compensation Appeal Board in the above-captioned matter is affirmed.