School District of Philadelphia v. Workmen's Compensation Appeal Board

640 A.2d 502, 163 Pa. Commw. 201, 1994 Pa. Commw. LEXIS 160
CourtCommonwealth Court of Pennsylvania
DecidedApril 5, 1994
StatusPublished
Cited by1 cases

This text of 640 A.2d 502 (School District of Philadelphia 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
School District of Philadelphia v. Workmen's Compensation Appeal Board, 640 A.2d 502, 163 Pa. Commw. 201, 1994 Pa. Commw. LEXIS 160 (Pa. Ct. App. 1994).

Opinions

CRAIG, President Judge.

The School District of Philadelphia (employer) appeals an order of the Workmen’s Compensation Appeal Board which affirmed a referee’s decision granting the lifetime claim petition of the deceased claimant Harry Polk, and the fatal claim petition of his widow Harriet Polk.

FACTS

The facts, as found by the referee, follow. Polk worked for the employer from 1971 to February 19, 1985. On February 19, 1985, Polk experienced pain and was hospitalized and diagnosed as having lung cancer. Polk did not return to work. From March 1,1985 to March 9, 1985, Polk was treated for right upper lobe undifferentiated cancer with bony metastases. The referee found that, on April 1, 1985, Polk notified the employer of his disease, and that it was work-related.

On June 6,1985, Polk filed a claim petition for compensation, alleging that he sustained lung cancer because of cumulative exposure to asbestos while working for the employer. Polk died in January of 1987, while his claim petition was still in litigation. In February of 1987, his widow (claimant) filed a fatal claim petition for compensation. The referee consolidated Polk’s claim petition and his widow’s fatal claim petition.

From 1971 to 1976, Polk worked for the employer as a bricklayer and brick pointer and was exposed to asbestos once or twice a year. From 1976 to February 19,1985, Polk worked for the employer as a machinist’s aide and was exposed to asbestos on a regular basis while performing tasks such as “repairing and replacing motors, sewer and heat pumps, and when working with pipes insulated with asbestos.” Finding of Fact No. 5.

The referee also found that 1) from 1965 to 1970, Polk had worked at the Philadelphia Naval Yard, where he had been exposed to asbestos, 2) Polk had smoked cigarettes for thirty-five years in the following quantities: less than one-half pack a day for the first twenty-five years, and one and one-half packs during the last ten years, and 3) Polk stopped smoking in 1984.

The claimant presented the deposition testimonies of Dr. Franeene Fleeger, who had been Polk’s treating physician, and Dr. Eddy A. Bresnitz, who had been Polk’s evaluating physician.

Dr. Fleeger, who had treated Polk in October of 1985, and had last seen him on June 13, 1986, diagnosed Polk as suffering from metastatic lung cancer which had spread throughout Polk’s body. In that doctor’s opinion, Polk’s exposure to asbestos while working for the employer contributed substantially to Polk’s illness. Dr. Fleeger further testified that “the latency period between the time of first exposure or peak exposure and the development of asbestos related cancer is 10 years as a median, with reported lag phases up to 35 years and shorter lag phases of one or two years.” Finding of Fact No. 13. (Emphasis added.)

Dr. Bresnitz, who had examined Polk on January 27, 1986, diagnosed him as having bronchogenic carcinoma, which was metastatic to different parts of Polk’s body. In that doctor’s opinion both Polk’s occupation at the [504]*504Philadelphia Naval Yard and his employment with the employer exposed him to asbestos, which contributed significantly to his development of lung cancer. Dr. Bresnitz opined that a minimum of ten years of exposure to asbestos results in the development of cancer, with an average exposure time of twenty to thirty-five years for the development of the disease.

The employer presented the medical testimony of Dr. Paul Epstein, an evaluating physician. After reviewing Polk’s medical records, that doctor testified that, in his opinion, Polk’s metastatic undifferentiated carcinoma of the lung and other organs caused Polk’s death. Dr. Epstein further opined that both Polk’s exposure to asbestos and his cigarette smoking for a period of latency which began in 1965, had contributed to Polk’s condition.

However, Dr. Epstein opined that, because the latency period for developing asbestos-related lung cancer is at least twenty years (Polk worked for the employer for fourteen years), Polk’s exposure to asbestos while working for the employer did not cause or contribute to Polk’s death.

The referee concluded that the claimant had not met the burden of proving that Polk’s exposure to asbestos while working for the employer had caused his lung cancer, and dismissed both the claim petition and the fatal claim petition.

The claimant appealed the referee’s decision to the board, which reversed the referee’s decision and remanded the case to the referee by order dated February 1, 1991. The board relied on Marcucci v. Workmen’s Compensation Appeal Board (B.P. Oil Company), 98 Pa.Commonwealth Ct. 7, 510 A.2d 1262 (1986) and Maher v. Workmen’s Compensation Appeal Board (B.P. Oil Corporation), 125 Pa.Commonwealth Ct. 411, 558 A.2d 138 (1989), and noted that this court had decided Maher after the referee had rendered his decision. The board concluded that the claimant had met her burden of proof under section 301(e)(2) of the Act, and ordered the referee to make findings of facts and conclusions of law consistent with the board’s opinion, and award the claimant lifetime and fatal compensation benefits.

On remand, the referee, in an opinion dated June 29, 1992, awarded benefits to the claimant, finding that Polk’s exposure to asbestos while working for the employer caused his death from lung cancer. In Finding of Fact No. 18, the referee states:

18. The referee has carefully considered all of the medical evidence adduced in this case and is inclined to believe that Decedent’s exposure to asbestos while in the employ of the Defendant did not cause his disability or death from lung cancer due to exposure to asbestos. However, obedient to the mandate of the WCAB, the referee finds as fact that Decedent’s exposure to asbestos while in the employ of Defendant did cause his disability and death from asbestos related lung cancer.

(Emphasis in original.)

The employer appealed the referee’s decision to the board, which affirmed that decision. This appeal followed.

The employer presents the following issues on appeal: 1) whether the board erred in its February 1, 1991 and March 31, 1993 decisions, by ordering that the employer award lifetime and fatal compensation benefits to the claimant pursuant to Marcucci and Maher; 2) whether the board erred in its February 1 decision, by reversing the referee’s decision; 3) whether the board erred in its March 31 decision, by concluding that the referee accepted and credited the opinions of the claimant’s medical witnesses, and by concluding that substantial evidence supported the referee’s decision, which the referee made on a remand order from the board; 4) assuming that the board correctly applied Marcucci and Maher to the present case, whether the board erred in concluding that the claimant met her burden of proof under Section 301(c)(2) of the Pennsylvania Workmen’s Compensation Act, Act of June 2,1915, as amended, 77 P.S. § 411(2).

Our scope of review is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether any error of law was committed, or whether any constitutional rights were violated.

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Related

Young v. Workers' Compensation Appeal Board
897 A.2d 530 (Commonwealth Court of Pennsylvania, 2006)

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Bluebook (online)
640 A.2d 502, 163 Pa. Commw. 201, 1994 Pa. Commw. LEXIS 160, Counsel Stack Legal Research, https://law.counselstack.com/opinion/school-district-of-philadelphia-v-workmens-compensation-appeal-board-pacommwct-1994.