Gray v. Workmen's Compensation Appeal Board

657 A.2d 77, 1995 Pa. Commw. LEXIS 156, 1995 WL 135078
CourtCommonwealth Court of Pennsylvania
DecidedMarch 29, 1995
DocketNo. 1553 C.D. 1994
StatusPublished
Cited by5 cases

This text of 657 A.2d 77 (Gray v. Workmen's Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gray v. Workmen's Compensation Appeal Board, 657 A.2d 77, 1995 Pa. Commw. LEXIS 156, 1995 WL 135078 (Pa. Ct. App. 1995).

Opinion

NEWMAN, Judge.

Marie A. Gray (Claimant) appeals from an order of the Workmen’s Compensation Appeal Board (Board) reversing a referee’s decision granting her temporary total disability benefits from February 2, 1988 to May 7, 1990 and partial disability benefits as of May 7, 1990 to continue indefinitely because of exposure to occupational hazards in her workplace.

Claimant worked for the Pittsburgh Board of Education (Employer) for twenty years, the last eight years of which she was a secretary at the Washington Education Center (The Center). The Center provides vocational training to students in such areas as cooking, welding, carpentry and auto body repair. On September 12, 1989, Claimant filed a claim petition alleging that she was injured February 1, 1988 because of continual exposure to fumes and odors emanating from the auto body, welding and industrial arts divisions of the Center. Employer filed an answer, denying the material allegations of the petition.

Before the referee, Claimant testified that during her employment at the Center she [79]*79was exposed to and smelled various substances with lacquer and/or paint odor, and she occasionally saw vapor clouds in the Center. Claimant testified that following her exposure to these conditions, she suffered from headaches, chronic sore throats, pressure in her ears, burning eyes, fatigue and vomiting. According to Claimant, her symptoms gradually worsened over time, culminating in her seeking medical treatment February 1, 1988.

Claimant also offered the testimony of Suzanne Bailey, a substitute teacher for Employer. Bailey testified that during the 1986-1987 school year she also smelled various odors emanating from the building.

Dietrich A. Weyel, Ph.D., a certified industrial hygienist, also testified for Claimant. Dr. Weyel stated that he reviewed a survey done at Employer’s request by NUS Corporation concerning potential airborne chemicals at the Center. Dr. Weyel testified that he believed the NUS report was an accurate representation of the hazards in the building. The NUS report specifically identified the hazards as paint fumes, welding fumes, and cooking smells.

Claimant’s treating physician, T. Roy Kerry, M.D., who is board certified in otolaryn-gology and environmental medicine, testified that in his medical opinion Claimant suffered from hypothyroiditis,1 a condition that was triggered by a chemical sensitivity reaction causally linked to Claimant’s work environment.

Finally, Claimant offered the testimony of David L. Spence, M.D., a board certified neuropsyehiatrist, who testified that Claimant suffered from an adjustment disorder with mixed emotional features and post-trau-mafic stress disorder that were a result of her workplace environment.

In opposition, Employer presented the testimony of Jeannie Jarzynka, Paul Shurman, and Nathan Ball, who were all current employees of Employer. Moreover, Richard C. Gerlach, Ph.D., who is a certified industrial hygienist, testified on Employer’s behalf. Finally, Employer submitted the deposition testimony of Gregory J. Fino, M.D., and Stuart S. Burstein, M.D.

The referee accepted as credible and worthy of belief the testimony of Claimant, Bailey, Dr. Weyel, and Dr. Kerry.2 The referee rejected Employer’s witnesses as not credible.3 The referee then determined that Claimant satisfied her burden of proof for temporary total disability benefits under Sections 108 and 301(c)(1) of The Pennsylvania Workmen’s Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 27.1 and 411(1). The referee however concluded that Claimant’s disability became partial as of May 7, 1990, and he modified her benefits accordingly as of that date. Finally, the referee limited the attorney’s fees of Claimant’s counsel to a period not to exceed five years.

Both parties appealed the referee’s decision to the Board. Specifically, Employer contended that substantial evidence did not support a finding that Claimant was exposed to dangerous chemicals and that the referee committed an error of law in concluding that Claimant satisfied her burden of proof under Sections 108 and 301(c)(1) of the Act.4 In her appeal, Claimant asserted that the referee erroneously determined that her disability changed from total to partial disability as of May 7, 1990. Claimant also argued that the [80]*80referee improperly limited her attorney’s fees.

The Board agreed with Employer’s arguments and reversed the referee’s decision, predicating its determination on the following:

In the instant case, where genesis of the alleged vapors, fumes, odors and smoke has not been established and the amount of such exposure has not been quantified, and where the only scientific evidence as to the air quality at the work place has been rejected as not credible, medical testimony based upon claimant’s lay testimony that she was exposed to these unidentified substances lacks the required unequivocal quality sufficient as a matter of law to support the claimant’s burden of proof.

Board’s Order and Opinion, dated May 23, 1994, at 6.5

Claimant now appeals to our court and presents the following three issues: (1) Whether the Board erred in reversing the referee’s decision when his findings of fact were based on substantial evidence that Claimant was exposed to dangerous chemicals in the workplace; (2) Whether the referee erred in determining that Claimant’s disability had changed from total to partial disability as of May 7, 1990; and, (3) Whether the referee erred in limiting the attorney’s fees for her counsel to a period not to exceed five years.6

I

With respect to the first issue, Claimant maintains that the Board erred in reversing the referee’s decision because there was substantial evidence of record for the referee to conclude that Claimant had sustained her burden of proof pursuant to Section 301(c)(1) of the Act.7 Section 301(c)(1) provides in pertinent part that:

[t]he terms ‘injury’ and ‘personal injury,’ as used in this act, shall be construed to mean an injury to an employe, regardless of his previous physical condition, arising in the course of his employment and related thereto, and such disease or infection as naturally results from the injury or is aggravated, reactivated or accelerated by the injury.

77 P.S. § 411(1).

To sustain an award under Section 301(c)(1) of the Act, the claimant must prove a causal relationship between the work-related incident and the alleged disability. Odd Fellow’s Home v. Workmen’s Compensation Appeal Board (Cook), 144 Pa.Commonwealth Ct. 280, 601 A.2d 465 (1991). In addition, we have said that an injury need not be pinpointed to a specific event or definable incident so long as the injury arises in the course of employment and is related thereto. Workmen’s Compensation Appeal Board and Young v. Bethlehem Steel Corporation, 23 Pa.Commonwealth Ct. 454, 352 A.2d 571 (1976).

With these principles in mind, we proceed with our analysis of Claimant’s first issue.

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Bluebook (online)
657 A.2d 77, 1995 Pa. Commw. LEXIS 156, 1995 WL 135078, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gray-v-workmens-compensation-appeal-board-pacommwct-1995.