Monday, November 29, 2004

Supreme Court Grants Allowance of Appeal in Heart Attack -- Abnormal Working Conditions Case

In Panyko v. WCAB (U.S. Airways), the Commonwealth Court reversed the grant of a heart attack claim based on Davis v. Workers' Compensation Appeal Board (Swarthmore Borough), 561 Pa. 462, 751 A.2d 168 (2000). The Commonwealth Court recognized the Claimant's argument that abnormal working conditions do not need to be shown in a heart attack case, but the Court noted the Supreme Court applied Davis to a heart attack case without further explanation in Erie Bolt Corporation v. Workers' Compensation Appeal Board (Elderkin), 777 A.2d 1169, 1998 Pa. Commw. LEXIS 1004 (Pa. Cmwlth., No. 1698 C.D. 1997, filed February 5, 1998), reversed, 562 Pa. 175, 753 A.2d 1289 (2000). The Supreme Court has now granted the Claimant's petition for appeal in the Panyko case.

Tuesday, November 23, 2004

Supreme Court Discusses Substantial Evidence Standard of Proof

In Patric Gibson, c/o Kathy Gibson v. WCAB (Armco Stainless & Alloy Products), Appeal of: Armco Stainless & Alloy Products, the Supreme Court reversed the holding of the Commonwealth Court that a co-workers' observation of grey dusty material on the pipes leading from the boiler established the presence of asbestos. The Supreme Court articulated the substantial evidence standard of proof as follows:
  • "...information admitted into evidence must have sufficient indicia of reliability and be relevant to the matter under consideration. Accordingly, to test whether the evidence relied upon is substantial evidence in support of a finding, the reviewing court should ascertain whether the evidence admitted is competent, and if it is competent, whether it is sufficient to support the administrative finding. If the evidence is both competent and sufficient, then the finding is supported by substantial evidence." p. 7

In the case, the witness admitted he had no personal knowledge the material was asbestos. Although the Court would allow the witness to have obtained this knowledge by either formal education or practical experience, there was no evidence the witness possessed either.

The practical observation often made is that if one accepts medical evidence the Claimant has asbestosis, then work exposure is a likely cause. The Supreme Court made the following comment on the Claimant's medical evidence:

  • "...we are troubled by the absence of testimony from any of Decedent’s treating physicians, the want of a diagnosis of asbestos-related disease during his lifetime, and the lack of a post mortem examination that could have conclusively established asbestos-related disease among the actual contributory causes of death. Further, the existence of apparently inert opacities occurring on Decedent’s chest x-rays over a period of twelve years seriously undermines a finding of asbestos-related disease as a significant cause of death. While unnecessary for a determination in the instant matter, we would caution tribunals considering claims of this nature that the weight to be accorded to evidence of cause of death must reside primarily with the diagnosis of one or more treating physicians or significant findings upon post mortem. After-the-fact testimony by non-treating medical experts, who have had no contact with the decedent, and that is contrary to the diagnosis of a treating physician or the findings on post mortem, may be of limited value in establishing a cause of death." f.n. 5

Thursday, November 18, 2004

Commonwealth Court Emphasizes Limited Basis of Appeal for Capricious Disregard of Competent Evidence

In E. Williams v. WCAB (USX Corp.-Fairless Works, et al.) the Claimant appealed the credibility findings of the WCJ. The Commonwealth Court made it clear that the Claimant could not cobble together bits and pieces of testimony to make an argument that the WCJ capriciously disregarded competent evidence. Rather, the WCJ's decision identified and explained the substantial, competent, and credible evidence on which the decision was based. The Court emphasized it will be a rare instance in which an appellate court would disturb an adjudication based upon the capricious disregard of material, competent evidence.

Pennsylvania Workers' Compensation Practice and Procedure Reference 29.217

Wednesday, November 17, 2004

WTAE Pittsburgh's Site Offers Interesting Articles on New Developments in Treatment of Back Pain

WTAE's web site has information on Fish Oil used in place of NSAIDs for neck and low back pain. The research was done by Dr. Joseph Maroon. The links to the right under the heading "All About Back Pain" are interesting also.