Monday, June 26, 2006

Commonwealth Court Holds Expert Can Posit the Existence of Disease Causing Agent in Section 301(c)(1) Case

In Craftex Mills, Inc. of PA v. WCAB (Markowicz), the Employer tried to apply the evidentiary requirements for proof of occupational disease exposure as stated by the Supreme Court in Gibson v. Workers’ Compensation Appeal Board (Armco Stainless), 580 Pa. 470, 861 A.2d 938 (2004).

In the Gibson case, the Supreme Court, while coincidentally appearing skeptical of the Claimant’s expert medical testimony, held the Claimant did not meet his burden to show asbestosis. The Court stated there must be evidence there was asbestos in the plant, and the Claimant’s lay witness was unsure if the grey dusty material on the pipes leading from the boiler was, indeed, asbestos. See post.

In the Craftex Mills case, the Claimant’s physician testified the Claimant suffered from "hypersensitivity pneumonitis and asthmatic bronchitis as a result of his exposure to thermophilic actinomyces in the air conditioning unit." emphasis in original. The WCJ awarded benefits under Section 301(c)(1) of the Act. The Court stated: "The Judge was impressed by Dr. Mengel’s discussion of the diagnosed condition and its epidemiology." The Board and Court appeared to be similarly impressed.

On appeal, the Employer noted Dr. Mengel admitted not all air conditioning units have thermophilic actinomyces. The Employer pointed out there was no lay evidence that thermophilic actinomyces were present. The Court applied the Gibson test and agreed there was no competent lay testimony to establish that thermophilic actinomyces were present.

However, the Court found Dr. Mengel’s testimony competent on its own. Dr. Mengel explained he concluded the Claimant was exposed to thermophilic actinomyces from the air conditioning system because the Claimant had no history of other exposure such as from "mushroom houses, tree de-barking facilities, and areas in which pigeons roost."

This is reasonable, but indistinguishable from Gibson, in which the Claimant’s doctor surely would have reasoned the Claimant was not exposed to asbestos anywhere other than at work.

The Court in Craftex Mills pointed out post hoc testing could show thermophilic actinomyces were not present, even if they were present at the time of the injury. This would not be the case with asbestos, which would be still there or should be the subject of a record of removal and disposal. The Court also pointed out the Claimant in this case proved his case completely under Section 301(c)(1) rather than relying on the presumption of causation in a case of occupational disease. Based on these factors, the Court chose to defer to the expert opinion rather than placing an onerous burden on the Claimant.