Monday, September 9, 2013

Obstacles to Successful Occupational Disease Claim Litigation

Occupational Disease Litigation
Work Injury is defined to include Occupational Disease at Section 301(c)(2) of the Pennsylvania Workers' Compensation Act. Where occupational disease is the basis for a compensation claim for death, "it shall apply only to disability or death resulting from such disease and occurring within three hundred (300) weeks after the last date of employment in an occupation or industry to which he was exposed to hazards of such disease".

An obstacle to successful claim investigation is the time delay which may arise from the work exposure to the time of filing and litigation of the claim. Individuals with first-hand knowledge of the work environment, products used and work assignments may become unavailable. The work environment may change. The products used and/or their composition may change. Documentation of work assignments may not be retained. The recollection of individuals may fade.
These factors may equally compromise the case of the Employer or Employee.

P.H. Glatfelter v. WCAB (Henry), No. 48 C.D. 2013, an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Judge Leavitt on July 30, 2013, discussed a claim petition and the evidence in support of employee's burden of proof.

Factual and Procedural Background

Employee worked as a pipe-fitter with a paper manufacturer since 1972. He testified he worked around insulation that contained asbestos. It covered the boilers and pipes he repaired. He would remove this material without any special protective clothing, gloves or breathing apparatus. Early on, the hazard of asbestos was unknown. In the1990's Employer adopted an asbestos awareness program and trained employees in proper asbestos removal.

Employee testified his last exposure to asbestos was in 2006 when he repaired a leaking steam pipe. He removed the insulation, which was "all wet and mushy". It was too hot to inspect. It was not marked "asbestos" but he believed his employer had this material tested. He said the employer "came out and either assumed or said that it was asbestos". slip opinion page 3.

Significantly, other than this 2006 incident, Employee could not identify when he was last exposed to asbestos, in the 300 weeks preceding his disability.

Another significant point (as we later find) was that Employee testified that he was routinely exposed to lime dust during maintenance and repair inside a large lime kiln.

Employee worked until February 23, 2009, when he was hospitalized for his pulmonary condition.
As employee's date of disability/injury was February 23, 2009, it was his burden to establish that he was exposed to hazardous material within 300 weeks of that date, in other words, between May 2003 and February 2009. The history of the 2006 incident satisfied that burden of proof. slip opinion page 6.

Employee Medical Expert
Michael H. Ader M.D.opined employee suffered from a diagnosis of pulmonary fibrosis, scarring of the lungs. Employee reported a history of significant asbestos exposure at work for over twenty (20) years.
In the absence of a history of cigarette smoking and nay disease that would cause fibrosis, Dr. Ader opined Employee's condition was caused by his work exposure to inhaled dusts, including asbestos and lime dust.

Employer Medical Expert
Scott Manaker M.D., PhD. examined employee and agreed with the diagnosis of pulmonary fibrosis. However he opined the cause of his disease was unknown and not attributable to exposure to asbestos and lime dust.

WCJ Decision
WCJ awarded total disability benefits based upon a finding of work related pulmonary fibrosis related to employee's workplace exposure.

Commonwealth Court Decision

Employer argued that employee did not produce sufficient evidence to prove his disability manifested within 300 weeks of his last exposure to the occupational hazard of asbestos.

Employee's burden is to prove that his disease was caused by his occupation and disabled him. He must prove that he became disabled within 300 weeks of his last actual exposure to the hazardous material in the workplace that is responsible for his condition.

Importantly, whether a claimant has been exposed to hazardous material in the workplace is a question of fact for the WCJ.  The claimant need not produce scientific evidence to prove the existence of a hazard. Lay witness testimony, of a witness possessing first-hand knowledge and observation of a hazard in the claimant's workplace is sufficient to prove the existence of a hazard and exposure to the hazard.
See: Witco-Kendall Co. v. WCAB (Adams) 562 A2d 397 (Pa. Cmwlth. 1989).

The Knowledge of a witness may come through formal education or practical experience in dealing with the hazardous material. See: Gibson v. WCAB (Armco Stainless & Alloy Products) 861 A2d 938 (Pa. 2004).

The Employer is free to rebut this lay witness testimony with scientific evidence that a hazard did not exist.
 Witco-Kendall, 562 A2d at 401.

Employer Argued that employee evidence was too vague to support a finding that he was exposed to an asbestos hazard in 2006.
Remember employee had to prove an exposure to an asbestos hazard within 300 weeks of his disability (February 23, 2009).
The testimony of the 2006 incident was the only evidence produced to satisfy this proof.
Employee stated he could not recall when he was exposed prior to 2006!

Employer argued the testimony produced in this case was similar to the testimony produced in the prior decision of the Pennsylvania Supreme Court in Gibson. That decision concluded that lay witness testimony was insufficient to prove asbestos exposure in the workplace as the co-worker testimony reflected that he did not have personal knowledge of the existence of asbestos at the workplace, rather he "went by what people said". This witness described he saw "dark gray material" on some pipes and ceiling that he believed to be asbestos, but he had no training or experience identifying asbestos and could not say with certainty whether the material he saw was asbestos.

Commonwealth Court distinguished the instant case.

Here, employee was medically diagnosed with an asbestos related disease.
In Gibson there was no asbestos diagnosis in the medical records

Here, Employer did not dispute the long time presence of asbestos in the workplace.
In Gibson, there was no evidence asbestos was ever in the workplace.

Here Employee acknowledged his difficulty identifying the insulation he removed in 2006, BUT he testified the employer tested the material and acknowledged that it contained asbestos.
Importantly, Employer did not rebut this testimony!

Here, "This is not a situation where Claimant had no idea whether asbestos was present in Employer's workplace and simply relied on what "people" told him. Employer informed him that there was asbestos in the insulation he had handled." The court viewed this an an admission.

Also, the Court noted that asbestos was not the sole cause of employee's illness. Employee medical evidence (found credible by the WCJ) opined the pulmonary fibrosis was caused by exposure to asbestos and lime dust.There was sufficient evidence to prove employee was exposed to  hazardous materials in the workplace within 300 weeks of becoming disabled by pulmonary fibrosis.

Practice Pointers:
1. Although it may be difficult to acknowledge, the case law is clear, an employee may "prove" the existence of a hazard in the workplace by "unscientific" lay witness testimony. This type of testimony is often presented when the employee cannot produce scientific evidence of a workplace expose or the documentation of the employer use of a material via purchase orders, disposal records or direct identification.

2. Employer rebuttal evidence may be presented in the form of: (1) witness testimony (good); (2)documentation of workplace materials (better); (3) scientific test results of the material or workplace environment (best).

3. Discovery of medical records is imperative to rule-out any non-occupational factors.

4. Discovery of past work experience and possible workplace exposures may be significant for consideration of medical causation issues.

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