Kimberly Clark Corp. v. Workers' Comp. Appeal Bd.

Kimberly Clark Corporation, Petitioner v. Workers' Compensation Appeal Board (Stanton), Respondent

No. 2056 C.D. 2011

COMMONWEALTH COURT OF PENNSYLVANIA

Argued: May 15, 2012

July 5, 2012

BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE BROBSON

Petitioner Kimberly Clark Corporation (Employer) petitions for review of an order of the Workers' Compensation Appeal Board (Board). The Board affirmed a decision of a Workers' Compensation Judge (WCJ), who granted benefits to John Stanton (Claimant). The WCJ determined that Claimant was disabled by virtue of a work-related occupational disease under the Workers' Compensation Act (Act).¹ The Board affirmed the WCJ's decision granting benefits on the basis of a three-three split decision by the Board Commissioners, but upon a different provision of the Act from the one the WCJ applied in her decision. We now affirm.

Claimant filed a claim petition on August 3, 2009, asserting that he sustained a work-related injury in the nature of "small cell carcinoma-lung cancer." Claimant averred that the date of onset of his disease was October 9, 2008. Claimant alleged that his lung cancer was caused by "exposure to coal & fly ash containing crystalline silica" while working for Employer.² Claimant averred that his treating physician told him on July 23, 2009, that his condition was work-related. In his claim petition, Claimant sought full disability and medical benefits from October 10, 2008, onward. The matter was assigned to the WCJ, who conducted a hearing, during which Claimant testified.

Claimant testified that he began working for Employer on February 23, 1976. Employer moved Claimant to its power plant in April 1987, where Claimant was required to wear a respirator in certain areas because of fly ash. He also worked in the coal yard for a year, where he also wore the respirator. In August 1988, Employer moved Claimant to an ash job, where he checked for leaking fly ash. Employer placed a restriction on its employees' exposure to fly ash between 1991 and 1997, because of unfavorable air quality tests. After 1997, the air tested more favorably. Claimant continued to work in the same capacity until October 2008.

Claimant testified that he could smell and taste the fly ash and it was difficult to walk through the plant without getting some fly ash on him. Claimant also testified that Employer trained him to identify fly ash in the workplace.Claimant stopped working in October 2008. Claimant saw a throat specialist on October 10, 2008, who told him that he had a mass on his median sternum and right lung. Claimant's illness forced him to retire. Claimant testified that he smoked at least one pack of cigarettes per day since he was seventeen (17) years old.

Claimant submitted the deposition testimony of his treating physician, Dr. Raymond Vivacqua, M.D., who is a certified hematologist and board-eligible oncologist. Dr. Vivacqua began treating Claimant in October 2008 and diagnosed Claimant with lung cancer. Dr. Vivacqua opined that there were two possible etiologies for the development of Claimant's cancer: (1) exposure to silica through fly ash, and (2) cigarette smoking.

Employer submitted the deposition testimony of Dr. Alan Lippman, M.D., who is a board-certified oncologist. Dr. Lippman examined Claimant on November 6, 2009. Dr. Lippman diagnosed Claimant's condition as metastic carcinoma of the lung, and he testified that Claimant is totally disabled because of that condition. Dr. Lippman opined that the condition was caused solely by Claimant's thirty-year smoking habit. Dr. Lippman testified that cigarettes contain a variety of carcinogens which directly impact lung tissue. Further, Dr. Lippman testified that he did not believe that Claimant's exposure to fly ash (and, consequently, silica) had any contributory effect on Claimant's lung cancer because: (1) controversy exists concerning the relationship between silica exposure and lung cancer, and (2) long term exposure to silica can lead to chronic scarring and fibrosis of the lung, which creates small nodules or scars that can impair pulmonary function and Dr. Lippman saw no indication of such scarring or evidence of chronic silica exposure in Claimant's CT scan or chest x-ray. Thus,Dr. Lippman opined that, in the absence of such evidence of silica exposure, he believed that the sole cause of Claimant's cancer was smoking.

Employer also submitted the testimony of its environmental manager, Gary Baker. Mr. Baker testified that he has been involved with Employer's monitoring and evaluation of coal dust and silica, and that levels of dust in 2002 were below OSHA³ and NIOSH⁴ recommendations. Mr. Baker testified that one floor of the facility was above NIOSH levels, which is the strictest standard. Mr. Baker also testified that Employer identifies the areas of its facility where employees must wear respirators and tests the fit of respirators used by its employees. Employer requires employees to wear respirators when fly ash is present. Fly ash may be present either because of a malfunction in the ash system or during a shutdown when ash is being cleaned out of the boiler.

The WCJ concluded that Claimant was entitled to benefits under Section 108(k) of the Act.⁵ Section 108(k) of the Act permits an award of benefits for claimants who have the occupational disease of silicosis, which results from exposure to silica. In so doing, the WCJ found Claimant's live testimony credible based upon his demeanor. The WCJ found Dr. Vivacqua more credible than Dr. Lippman because: (1) Dr. Vivacqua was Claimant's treating physician and hadgreater familiarity with Claimant's condition; and (2) Dr. Vivacqua examined Claimant on more occasions than Dr. Lippman. The WCJ also found Mr. Baker's testimony credible.

Employer appealed the WCJ's decision. As noted above, the Board could not reach a consensus in its review of the WCJ's decision. All of the Board Commissioners agreed, however, that the WCJ erred in analyzing Claimant's claim petition under the occupational disease provisions of the Act, because Claimant did not assert that he had silicosis or any other condition that would fall within Section 108 of the Act. The Commissioners further agreed that the claim petition should be evaluated under the general injury provisions of the Act, Section 301(c)(1) of the Act,⁶ because Claimant alleged that he was disabled as a consequence of lung cancer, which he claimed he developed as a consequence of his exposure to fly ash at work. The Commissioners, however, disagreed as to whether Claimant satisfied his burden under Section 301(c)(1) of the Act. Based upon the split vote of the Commissioners, the Board affirmed the WCJ's decision to award benefits to Claimant.

Employer filed a petition for review of that order,⁷ raising numerous issues. We identify and rephrase the primary issues Employer raises as follows: (1) whether substantial evidence supports the WCJ's factual findings regardingClaimant's exposure to fly ash at work; and (2) whether Dr. Vivacqua's testimony was competent and/or sufficient to establish that Claimant's exposure to fly ash in the work place constituted a substantial contributing factor in the development of Claimant's lung cancer.⁸

Employer's initial argument appears to be that, because exposure to fly ash is the alleged work-related cause of Claimant's lung cancer, and because silicosis (which is a disease caused by exposure to silica) is an occupational disease, the Board erred in reviewing the WCJ's decision by reference to and analysis under Section 301(c)(1) of the Act. This Court has held that "an employment-related disease, which is not compensable under Section 108 [of the Act], may nonetheless constitute a compensable 'injury' under Section 301(c)." Gray v. Workmen's Comp. Appeal Bd. (Pittsburgh Bd. of Educ.), 657 A.2d 77, 80 n.7 (Pa. Cmwlth. 1995) (citation omitted). In order to prevail in such a claim under Section 301(c)(1) of the Act, "the claimant must prove a causal relationship between the work-related incident and the alleged disability." Id.⁹

In Gray, this Court discussed the evidentiary burden a claimant bears when alleging that a work-place exposure has resulted in a compensable injury:

[W]hether a hazard exists is a question of fact for the [WCJ] to determine. Furthermore . . . a claimant's burden of proof related to this issue is not overly demanding. We have also asserted that "since claimant's exposure is a factual question, the claimant need not present scientific evidence or expert testimony to prove the existence of the hazard in the workplace." "The [WCJ] may rely solely on the testimony of the claimant or other witnesses to prove the existence of an exposure to the hazard."

Gray, 657 A.2d at 80-81 (citations omitted).

The WCJ made the following key factual finding relevant to Claimant's burden to prove that he was exposed to fly ash in the workplace:

The Claimant testified, and the Judge finds that he also performed work as a boiler operator since June 2000, had exposure to fly ash then, used a respirator then, and also performed work in [Employer]'s coal yard and boiler building then and for about 9 hours per day in the boiler building. The Claimant's testimony established, and the Judge finds that the Claimant performed the lasttwo positions until the end of his employment with [Employer] on October 9, 2008 and that he had last exposure to the occupational hazard, inclusive of the fly dust, on and about October 9, 2008.

(WCJ Decision, Finding of Fact (F.F.) no. 17.)

Employer relies upon our Supreme Court's decision in Gibson v. Workers' Compensation Appeal Board (Armco Stainless & Alloy Products), 580 Pa. 470, 861 A.2d 938 (2004), for the proposition that when a lay witness cannot specifically identify a disease-causing element in the work place, the testimony is insufficient to...