“an express consideration and rejection, by definition, is not capricious disregard”
How later courts described this case
- “an express consideration and rejection, by definition, is not capricious disregard”
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Nestle USA, Inc./Vitality, :
Petitioners :
:
v. : No. 890 C.D. 2016
: Submitted: December 16, 2016
Workers’ Compensation Appeal :
Board (Gallen), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER FILED: March 27, 2017
Nestle USA, Inc./Vitality (Employer) petitions for review of the May 10,
2016 Order of the Workers’ Compensation Appeal Board (Board), affirming a
Workers’ Compensation Judge’s (WCJ) Decision granting the Claim Petition of
Shawn Gallen (Claimant). Employer argues that the Board erred in upholding the
WCJ’s Decision because it is not supported by substantial evidence, it is not
reasoned within the meaning of Section 422(a) of the Workers’ Compensation Act
(Act),1 and the WCJ capriciously disregarded evidence of record. After a careful
review of the record, and the WCJ’s opinion, we see no error.
Claimant filed a Claim Petition on September 6, 2013 alleging that he was
injured on June 27, 2013 while “working on fountain and soda drink machines
w[ith] contaminated water.” (R.R. at 1a.) The injury is described as Legionnaires’
Disease. (Id.) Employer filed an Answer to the Claim Petition on September 30,
2013, denying Claimant’s allegations and asserting that “Claimant is unable to
demonstrate that a work-related exposure . . . was a substantial contributing factor
to Claimant’s disability.” (R.R. at 6a.) The matter was assigned to a WCJ for
hearing and disposition.
I. Proceeding before WCJ
Resolving the issues raised by Employer requires a rather extensive
recitation of the proceedings. In support of his Claim Petition, Claimant testified
by video deposition and submitted the deposition testimonies of Lawrence R. Peck,
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 834. Section 422(a) provides, in
pertinent part, that:
All parties to an adjudicatory proceeding are entitled to a reasoned decision
containing findings of fact and conclusions of law based upon the evidence as a
whole which clearly and concisely states and explains the rationale for the
decisions so that all can determine why and how a particular result was reached. .
. . When faced with conflicting evidence, the workers’ compensation judge must
adequately explain the reasons for rejecting or discrediting competent evidence.
Uncontroverted evidence may not be rejected for no reason or for an irrational
reason; the workers’ compensation judge must identify that evidence and explain
adequately the reasons for its rejection. The adjudication shall provide the basis
for meaningful appellate review.
Id.
2
D.O.; Debra Eppolito; Rose Cooper; and Christine Gallen (Claimant’s spouse). In
opposition to the Claim Petition, Employer submitted the deposition testimonies of
H. Tim Frazer, M.S. CSP, and Richard Snepar M.D., FAC.
Claimant testified, in relevant part, as follows. Claimant worked for
Employer since 1994. (R.R. at 24a-25a.) Prior to his injury, Claimant served as
the lead service technician for the Burlington, New Jersey office, but most of his
work was performed in Pennsylvania. (Id. at 25a.) Claimant’s role was to service
and repair equipment dispensing beverages at hotels, colleges, prisons, schools,
retirement facilities, and other similar locations. (Id.) His work duties included
driving to about three locations per day and repairing beverage machines. (Id. at
26a, 30a-31a.) Many of the beverage machines he repaired had water running
through them. (Id. at 27a.) When fixing the espresso machine, in particular, the
water would spray into his face and chest. (Id. at 28a.) Claimant also repaired
equipment at Employer’s shop in New Jersey. (Id. at 29a.) The machines he
repaired at the shop were dirty and required Claimant to spray them down with
water and to replace parts as necessary. (Id. at 29a-30a.)
On the night of June 25, 2013, Claimant experienced chills and thought he
was getting the flu. (Id. at 33a-34a.) He went to work the next two days but felt
very sick. (Id. at 34a.) Claimant called off work on June 28, 2013, and went to the
hospital the following day, June 29, 2013. (Id.) Claimant fell into a coma soon
after arriving at the hospital. (Id. at 35a.) While in the coma Claimant was
diagnosed with Legionnaires’ Disease. (Id. at 42a.) He awoke from the coma
sometime in July at a different hospital. (Id. at 35a-36a.) After being treated at the
hospital, Claimant was discharged and transferred to St. Mary’s Hospital on
August 2, 2013, where he underwent in-patient rehabilitation treatment until his
3
release on September 19, 2013. (Id. at 36a, 39a.) Since his injury, Claimant is
confined to a wheelchair, and his speech has changed. (Id. at 40a-41a.)
Everything in his life has changed; “[his] marriage, [his] relationship with [his
five] kids, [his] job, [his] ego, everything.” (Id. at 41a.) He can no longer drive
and needs someone to be with him whenever he goes anywhere. (Id.)
About a month prior to June of 2013, Claimant received medical treatment
for pneumonia. (Id. at 71a.) Claimant smoked a pack and a half of cigarettes daily
for over 20 years prior to his injury but has since quit. (Id. at 72a, 74a.) Claimant
lost considerable weight while in the hospital and had some weakness due to
muscle atrophy. (Id. at 77a-78a.)
Claimant thinks that he may have contracted Legionnaires’ Disease while
refurbishing equipment at Employer’s shop in New Jersey. (Id. at 42a.) There,
beverage machines sit on a pallet for up to a month, and he was responsible for
flushing the machine out with water before installing new parts. (Id. at 43a.) An
electrical spike often occurs during the repair process, causing water to spray out
from the machine. (Id.) He does not know anyone else at work or in his family
that contracted the disease. (Id. at 44a.)
Claimant went on a fishing trip to an ocean bay in New Jersey with his
colleagues the week before his injury. (Id. at 81a-82a.) He did not catch any fish
and did not handle the fish caught by others. (Id. at 83a.) Claimant also went
fishing in a freshwater lake sometime in 2013, but could not remember when. (Id.
at 86a-87a.) Claimant has an aboveground pool at his house. (Id. at 89a.) He was
starting to open it in June 2013 when he got sick, and Claimant’s neighbors
finished the job for him. (Id.)
4
Rose Cooper, Claimant’s neighbor, testified by deposition that she and
another neighbor, Debra Eppolito, helped Claimant finish opening his pool in July,
2013, after Claimant went into the hospital. (R.R. at 145a-46a.) Ms. Cooper and
Ms. Eppolito decided to drain the pool instead of using chemicals to clean it. (Id.
at 147a.) Ms. Cooper also testified that she cleaned the walls of the pool and
removed stones and sticks. (Id. at 147a-48a.) Ms. Cooper testified that at no point
after cleaning the pool did she or anyone in her family become ill. (Id. at 150a.)
Ms. Eppolito also testified by deposition to her role in cleaning Claimant’s pool
that mirrored Ms. Cooper’s testimony. (Id. at 178a-81a.) Ms. Eppolito further
testified that neither she, nor anyone in her household, became ill after cleaning the
pool. (Id. at 181a-82a.) Claimant’s spouse also testified by deposition to the fact
that Claimant started to open the pool and that he went on a fishing trip before he
became ill. (Id. at 209a-11a.) Claimant’s spouse also testified that her daughter
and her daughter’s boyfriend helped drain the pool and neither of them fell ill. (Id.
at 212a-14a.) She further testified that Claimant is not fully independent and needs
help bathing, getting drinks, preparing food, getting dressed, as well as general
standby assistance. (Id. at 233a-34a.)
Dr. Peck, Claimant’s family doctor, testified by deposition as follows. Dr.
Peck is board certified in family practice and sees all types of patients with all
types of conditions. (R.R. at 258a-60a.) In his 30 years of practice, Dr. Peck “may
have had one” patient with Legionnaires’ Disease years ago while in training and
has treated only a couple patients with brain trauma. (Id. at 261a.) Dr. Peck first
saw Claimant on September 26, 2013, where Claimant complained of a running
nose and sore throat. (Id. at 262a-64a.) Claimant told Dr. Peck about his
Legionnaires’ Disease and the complications from his hospital stay. (Id. at 264a.)
5
Dr. Peck examined Claimant, which revealed a rapid pulse and weakness in his
right upper extremity and both lower extremities. (Id. at 264a-65a.) Dr. Peck also
noticed a “little bit of a facial droop on the right. His tongue was deviated to the
right. He had significant trouble speaking. He also was noted to have tremors.”
(Id. at 265a.) Dr. Peck’s diagnosis at that time was “[h]istory of Legion[n]aires[’]
[D]isease, anoxic brain damage complication, abnormal function of the brain and
central nervous system, anxiety, dysfunctions with sleep disturbances.” (Id.) With
regard to Claimant’s brain injury, Dr. Peck opined that all Claimant’s symptoms
developed after Claimant was intubated due to lack of oxygen and that “something
obviously occurred in that time frame.” (Id. at 267a.)
Dr. Peck reviewed Claimant’s hospital records. From those records he
learned that Claimant was intubated and placed on a ventilator for some time. (Id.
at 270a-71a.) While in the hospital, Claimant underwent many tests and was
placed on dialysis for kidney failure. (Id. at 271a.) The records further reveal that
Claimant had significant trouble speaking after he was extubated. (Id. at 275a.)
Claimant has slightly improved since his first visit with Dr. Peck. (Id. at 277a.)
Claimant is still in a wheel chair, “[h]is speech is very slow,” and he continues to
suffer from significant tremors. (Id. at 277a-78a.)
Turning to Claimant’s Legionnaires’ Disease, Dr. Peck stated that the
disease is “always associated with water, usually dirty water . . . [i]t’s not
contagious from person to person, but it is transmitted through water.” (Id. at
268a.) Dr. Peck opined that Legionnaires’ Disease typically affects people that
work with HVAC or air conditioning or work around water. (Id.) After reading
Claimant’s testimony where Claimant detailed how water would spray his face, Dr.
6
Peck opined that this “would be a very logical way to get [Legionnaires’ Disease] .
. . [b]ecause [he] would breathe the droplets into [his] lungs.” (Id. at 283a.)
Dr. Peck reviewed the logs from Employer showing the locations Claimant
serviced beverage machines. (Id. at 278a.) While noting that the incubation period
for Legionnaires’ Disease is 2 to 10 days, Dr. Peck stated that it was impossible to
state exactly where Claimant contracted the disease. (Id.) The following exchange
then occurred between Claimant’s counsel and Dr. Peck:
Q: Have you seen any documentation to suggest that all of these
places [on the travel logs] – let’s just take in June of 2013, any of
these places were tested for Legionella?
A: I believe I saw maybe two places that were tested. There was a
Philadelphia system and there was one other place. I believe I saw
two.
Q. Do you have an opinion where you believe [Claimant]
contracted Legionella?
A. I couldn’t even guess. It could be any of th[e] places [on his
travel logs].
Q. Do you think it’s related to one of these places on this list?
A. That would be the most likely unless, I mean, it most probably
came from being directly exposed to a water source that was carrying
the bacteria and intimately maybe spraying in his face or being closely
involved with a water source.
Q. Doctor, can you state within a reasonable degree of medical
certainty as to whether or not you believe his Legion[n]aires[’
D]isease is directly attributable to his work?
A. Within a reasonable degree of medical certainty, his
Legion[n]aires[’ D]isease is a direct result of his occupation.
Q. Why do you believe that?
A. Because this is the kind of occupation where you would be
exposed to Legionella. There’s no other occupation that I know of
where you’re exposed to that much direct water vapor from different
locations and dirty machines which is typically where you find this
bacteria.
...
Q. Doctor, [Claimant] testified . . . regarding an attempt to open up
the pool. Do you think that he picked it up there?
7
A. Was he opening the pool? If he was not opening the pool – had
he been opening a dirty pool, had he been doing that, it would be
possible but that would be also unlikely but possible.
Q. A salt water fishing trip?
A. No. It’s not associated with salt water.
(Id. at 278a-81a.) Dr. Peck further opined that, but for Claimant’s Legionnaires’
Disease, Claimant would not have been intubated and, therefore, Claimant’s brain
injury is directly attributable to the Legionnaires. (Id. at 281a.)
Dr. Peck’s current diagnosis is “[a]noxic brain injury secondary to
Legion[n]aires[’ D]isease.” (Id. at 284a.) He expects Claimant to make minimal
improvement: “the tremor is not going to go away[,]” and “[t]here’s damage to the
nervous system.” (Id.) Claimant is on multiple medications which have not
significantly improved his condition. (Id.) Dr. Peck does not anticipate Claimant
returning to any form of gainful employment in the future. (Id. at 285a.)
On cross-examination, Dr. Peck recounted the history of Legionnaires’
Disease and noted that the first case involved people being infected while attending
a conference in Philadelphia. (Id. at 285a-86a.) These individuals did not work
with water but contracted the disease from the infected HVAC system at the
conference center. (Id. at 286a.) Dr. Peck admitted that “[i]n theory” someone
could be infected just by being in an enclosed building with an infected HVAC
system. (Id.) Dr. Peck further testified that he did not inspect the facilities in
which Claimant worked and that his knowledge of Claimant’s work conditions
came directly from Claimant. (Id. at 287a.) When asked if his opinion that
Claimant contracted the disease through the course of his employment was
speculative, Dr. Peck responded:
No. It’s based on medical information and the history of how
Legion[n]aires[’ D]isease is contracted. It’s known to be in HVAC
8
systems, and that is the most likely – I made it very clear within a
reasonable degree of medical certainty – nothing is 100 percent. It’s
possible he could have gotten it somewhere else, but that’s the most
likely way he got it. . . . I just think because of the large amount of
places he’s gone to an[d] the intimate contact that he had with [t]he
water and the machines, it’s much more likely that he got it that way.
(Id. at 288a-89a.) Dr. Peck acknowledged that he has no evidence that the
machines Claimant worked on contained the Legionella bacteria, does not know
the specific details on how beverage machines work or are repaired, and that he did
not know the exact details about Claimant opening his pool prior to contracting the
disease. (Id. at 289a-91a.) When questioned about drawing conclusions without
having the beverage machines tested, Dr. Peck stated:
That information is not necessary, just like, for example, people get –
if I have two people wrestling and they get MRSA. I don’t have to
test one of them. I know they got the MRSA from wrestling. We
make conclusions all the time without necessarily having all the
information. And I’m not saying it’s 100 percent. I’m saying that’s
the most likely way that he got it. Is it possible he got it another way;
it is possible he got it another way. That’s the most likely way he got
it.
(Id. at 295a-96a.) Dr. Peck further opined that the fact that other service
technicians did not contract Legionnaires’ Disease is not relevant as “the majority
of people who are exposed to Legion[n]aires[’ Disease] do not get it.” (Id. at
296a.) Dr. Peck further opined that while it is possible that Claimant contracted
Legionnaires’ Disease at some location other than his work as “anything is
possible[,]” it is “highly unlikely.” (Id. at 302a.)
In addition to the testimonies above, Claimant submitted a “Health Alert”
published by the Pennsylvania Department of Health entitled “Increase Legionella
Infections in Pennsylvania,” dated July 10, 2013. (R.R. at 481a-83a.) The alert
9
notes “an unusual increase in reports of Legionella infections in some areas of
Pennsylvania in June [of 2013].” (Id. at 481a (emphasis omitted).) The Health
Alert states that the cause of the increase is unknown and that other states in the
region have reported a similar increase in Legionella infections. (Id.)
Employer presented the deposition of Mr. Frazer, a certified industrial
hygienist. (R.R. at 311a.) In order to determine the likelihood of Claimant’s
exposure to Legionella, Mr. Frazer visited Employer’s facility in Burlington, New
Jersey to review the facility’s equipment, procedures, and work practices. (Id. at
312a.) He also reviewed the manuals of the various machines that Claimant would
have installed or serviced. (Id.) According to Mr. Frazer, for Legionella to grow,
it must “be in a significantly still or stagnant environment of untreated, warm water
greater than about 77 degrees Fahrenheit, and the temperatures where it grows best
is usually fairly elevated above that, in the 80s or 90s up to about . . . 108 degrees
Fahrenheit.” (Id.) Mr. Frazer opined that the temperatures of industrial beverage
machines are generally in the “60s and 70s, so they’re below the area where
growth would be expected.” (Id.) Mr. Frazer further opined that the Legionella
bacteria can be transmitted only if it is in aerosolized form, such as a “fog, mist, or
droplet.” (Id. at 313a.) While stating that Legionella occurs everywhere, Mr.
Frazer testified that “the highest potential for it to be aerosolized is usually in
things like cooling towers on buildings, in water features, . . . humidifiers, air-
conditioning units, shower heads, those sort of things.” (Id.)
Based on his review of the machines, Mr. Frazer opined that it is unlikely
that the machines would produce an aerosolized source of Legionella. (Id.) He
explained that the coffee dispensing machines heat water to levels that would kill
any Legionella bacteria, and that the beverage dispensers were used daily, meaning
10
that the water is not stagnant enough to produce Legionella growth, and that the
water is not expelled in an aerosolized form. (Id.) With regard to Claimant’s work
at Employer’s shop in New Jersey, Mr. Frazer opined that servicing the machines
would not lead to the aerosolization of the water contained in the machines. (Id.)
Thus, even if Legionella was present in the machines, exposure to the water would
not cause Legionnaires’ Disease. (Id.) Mr. Frazer testified that “in [his]
professional opinion, there’s no potential exposure from [Claimant’s] job that
would have increased his chances of getting Legionella on the job.” (Id. at 314a.)
On cross-examination, Mr. Frazer admitted that, while he reviewed the list
of locations Claimant visited to service machines, he did not inspect any of the
machines Claimant worked on during the two weeks prior to Claimant’s injury,
and, in fact, did not test any machines at all. (Id. at 315a-16a.) Mr. Frazer further
clarified his earlier testimony and stated that while the beverage machines do not
provide the ideal place for significant Legionella growth, the machines do not
produce water that is too cold that Claimant could not contract Legionnaires’
Disease if such machines expelled aerosolized water. (Id. at 315a.) Mr. Frazer
also stated that if a machine was sent to the shop for repair, the water could
potentially cool to a temperature that would foster Legionella growth. (Id. at
316a.) Mr. Frazer also testified that he did not visit Employer’s facility until 17 or
18 months after Claimant contracted Legionnaires’ Disease. (Id. at 315a.) Finally,
Claimant’s counsel asked Mr. Frazer if he knew of any notices by the Pennsylvania
Department of Health regarding Legionella in the summer of 2013, to which Mr.
Frazer responded that he does not follow Department of Health notices because
that is a public health issue and public health is not his practice. (Id. at 316a.)
11
The final deposition testimony submitted to the WCJ was from Dr. Snepar, a
New Jersey-based physician board certified in infectious disease. (R.R. at 416a-
18a.) Dr. Snepar testified as follows. Dr. Snepar reviewed Claimant’s medical
records going back to June of 2013 and the deposition transcripts of Claimant,
Claimant’s spouse, Dr. Peck, and the report of Mr. Frazer. (Id. at 420a.) Claimant
was admitted to the hospital with a diagnosis of “severe community acquired
pneumonia and renal insufficiency.” (Id. at 422a.) Claimant later developed
“severe respiratory failure with consolidation or involvement of many multiple
lobes of his lung requiring mechanical ventilation. He required a tracheotomy for
the long-term ventilation and he needed . . . a tube in his stomach for nutrition.”
(Id. at 422a-23a.) Tests were conducted and, as of July 24, 2013, Claimant
suffered from “ventilator dependent respiratory failure, Legionella pneumonia,
renal failure, anemia, bipolar disorder[,] and a thrombose in the subclavian and
axillary vein.” (Id. at 423a.) After being released from the hospital and transferred
to in-patient rehabilitation, Claimant
had several dysfunctions including gait, activity of daily living,
cognitive, language and speech and the swallowing, he had an anoxic
brain injury,[2] dysphasia, which is trouble swallowing. Right upper
extremity deep vein thrombosis. He had critical illness
polyneuropathy, history of bipolar disorder [and] Legionella
pneumonia. And some of the other issues that he had had at the prior
hospital which was Legionella and pneumonia, status post ventilator-
dependent respiratory failure.
(Id. at 424a.)
2
Dr. Snepar testified that anoxic brain injury is a brain injury caused by the lack of
oxygen. (R.R. at 424a.)
12
Claimant improved at St. Mary’s and was released on September 13, 2013,
but was readmitted from September 18-24, 2013, for “confusion, slurred speech,
and there was a question of a new brain abnormality. . . . And anoxic brain
damage[, r]ecent manic episode, abnormal gait, et cetera. But – and it was really
malignant hypertension that was the crux of that admission.” (Id. at 424a, 426a-
27a.)
Dr. Snepar explained the history, causes, and prevalence of Legionnaires’
Disease and explained how it is transferred. (Id. at 428-35a.) Based on his reading
of the reports and testimony, Dr. Snepar concluded, with a reasonable degree of
medical certainty, that Claimant “had a severe community acquired pneumonia due
to Legionnaires’ Disease. But the source of the organism is not known.” (Id. at
439a.) Because Claimant was a smoker, Claimant was a “susceptible host” of the
Legionella bacteria. (Id.) He could have been exposed through a “multitude of
possibilities,” but “there was no increased risk of . . . transmission in his work
environment.” (Id.) According to Dr. Snepar, “[i]t’s not possible to declare the
source of [Claimant]’s Legionnaires’ Disease with any degree of medical
certainty.” (Id.)
Dr. Snepar did not agree with Dr. Peck’s conclusions. In Dr. Snepar’s
opinion, Dr. Peck incorrectly presumed that Legionnaries’ Disease is an extremely
rare condition and that there was no occupation where one is exposed to water
vapor as much as servicing beverage machines. (Id. at 436a.) Instead, Dr. Snepar
opined that “there [are] many places where one can get Legionnaires’ Disease.”
(Id.) Dr. Snepar searched medical literature and found no cases where
Legionnaires’ Disease was linked to beverage machines. (Id. at 437a.) Further,
Dr. Snepar noted that Dr. Peck was a family physician with no experience in
13
Legionnaires’ Disease and did not cite to any literature to support his conclusions.
(Id. at 436a.)
On cross-examination, Dr. Snepar testified that he did not know what
Claimant’s job entailed, but relied on Mr. Frazer’s report to explain how the
machines operate and the likelihood of aerosolization. (Id. at 443a.) Dr. Snepar
was not aware that Mr. Frazer only spent one hour at Employer’s facility more than
a year after Claimant’s injury. (Id.) Dr. Snepar further stated that he did not know
where Claimant picked up Legionnaires’ Disease and that he was not provided
with any information from Employer on the machines Claimant serviced. (Id. at
445a-46a.) He further opined that even if he tested the water from the machines
serviced by Claimant and found the Legionella bacteria, he would not be able to
identify where Claimant contracted Legionnaires’ Disease because “there may be
Legionnaires’ Disease all over the place and that doesn’t mean that you are going
to contract it.” (Id. at 447a.)
II. The WCJ’s Decision
The WCJ reviewed all the evidence submitted and made the following
credibility determinations and factual findings.
22. The testimony of the Claimant has been reviewed and considered
in its entirety with the undersigned observing, via the digital video
disc, the Claimant’s demeanor.
The Claimant’s testimony is competent, persuasive and
accepted as credible in its entirety supported by his observed
demeanor as well as his history of complaints, their onset and nature
being consistent with the medical evidence particularly the testimony
of Dr. Peck.
The Claimant’s testimony is particularly credible as to his onset
of symptoms and their nature as well as to his job activities and
exposure to dirty water while doing his job activities particularly
during the period from June 10, 2013 through June 27, 2013 while in
14
Pennsylvania and particularly that during his job activities he was
sprayed in the face with dirty water from the various machines he
serviced or when he was involved with their refurbishment while in
the shop.
The Claimant’s creditability [sic] is further enhanced by the
Pennsylvania Department of Health issuing a Health Alert the highest
level of importance warrants immediate action or attention[,]
indicating an unusual increase in reports of Legionella infections in
some areas of Pennsylvania in June 2013.
In addition, the Claimant’s credibility is enhanced by the
testimony of the Claimant’s spouse, as well as Ms. Eppolito and Ms.
Cooper who all worked on the same pool as the Claimant did outside
of work and did not contract Legionellosis.
23. The testimony of [Dr.] Peck, . . . [Dr.] Snepar, . . . and [Mr.]
Frazer, . . . have been reviewed and considered in their entirety. The
testimonies are found to be competent with the greater weight for
persuasion given the testimony of [Dr.] Peck, . . . whose testimony is
found to be credible in its entirety.
When the testimonies of [Dr.] Snepar . . . and [Mr.] Frazer . . .
conflict and/or disagree with the testimony of [Dr.] Peck . . . and or
the Claimant, they are particularly rejected as not credible.
[Dr.] Peck, . . . as Claimant’s treating physician has examined
the Claimant over time, reviewed medical records and relied on the
credible history of symptoms[,] their nature and onset related by the
Claimant. Dr. Peck is in an overall better position to evaluate the
Claimant’s condition than the one time review of medical records by
[Dr.] Snepar . . . for the purpose of litigation.
Dr. Peck’s opinions are found to be credible and a finding of
fact particularly within a reasonable degree of medical certainty, the
Claimant’s Legionnaires’ Disease is a direct result of his occupation
and the [a]noxic brain injury is secondary to Legionnaires’ Disease,
and anoxic brain damage complication, abnormal function of the brain
and central nervous system, anxiety, dysfunction with sleep
disturbances as well as the Claimant is not able to go back to any form
of gainful employment in the future, all related to the work injury.
Dr. Peck’s opinions are consistent with the history of the work
injury as well as the Claimant’s ongoing limitations caused by the
work injury and supported by his examinations of the Claimant,
review of medical records[,] understanding of the diagnostic testing
performed[,] as well as understanding of Claimant’s work activities
and its environment.
15
Dr. Peck’s credibility is further supported by his training and
experience as a physician licensed to practice medicine in the
Commonwealth of Pennsylvania with an active clinical family
practice within which he is board certified.
The credibility of [Mr.] Frazer . . . is undermined as he did not
do his evaluation until approximately sixteen months after the
Claimant’s onset of symptoms, he did not know if any of the
machines that the Claimant was working on just prior to his
contraction of the disease were preserved for testing. Mr. Frazer
indicated he reviewed the logs of the locations where the Claimant
was working outside of the Burlington office but did not travel to
those locations or look, inspect[,] or review any of the machines the
Claimant was working on the week or two prior to contracting
Legionella. In addition, Mr. Frazer did not know there was a health
warning of an outbreak of Legionella infections in Pennsylvania in
June 2013. The greater weight for belief is given the Claimant’s
testimony particularly regarding his work activities, its scope and
nature as well as his exposure to dirty water into his face while
servicing and/or refurbishing the machines. When Mr. Frazer’s
testimony conflicts and/or disagrees with the testimony of the
Claimant and/or Dr. Peck it is particularly rejected as not credible.
24. The testimonies of Claimant’s spouse, as well as De[b]ra Eppolito
and Rose Cooper has been reviewed and considered in their entirety
and are found to be credible particularly as to their observations and
work performed on the Claimant’s pool at his residence and that they
did not become ill from working on the pool. The Employer has not
presented any evidence to refute the witnesses’ testimonies.
25. The Claimant on June 27, 2013, was injured while in the course of
employment and related thereto, while employed by the Employer
(Nestle USA/Vitality). The Employer had timely Notice of the injury.
The nature of the injury is an injury to Claimant’s lungs,
Legionnaires’ Disease and [a]noxic brain injury secondary to
Legionaries [sic] Disease, and anoxic brain damage complication,
abnormal function of the brain and central nervous system, anxiety,
dysfunction with sleep disturbances.
26. The Claimant due to the June 27, 2013 work injury became
Temporary Totally Disabled June 27, 2013 ongoing.
(WCJ Decision, Findings of Fact (FOF) ¶¶ 22-26 (emphasis added).)
16
Based on these findings and credibility determinations, the WCJ concluded
that Claimant met his burden to show that he was injured on June 27, 2013, in the
course of his employment and “[t]he nature of the injury is an injury to Claimant’s
lungs, Legionnaires’ Disease and [a]noxic brain injury secondary to
Legion[n]a[i]res[’] Disease, and anoxic brain damage complication, abnormal
function of the brain and central nervous system, anxiety, dysfunction with sleep
disturbances.” (WCJ Decision, Conclusions of Law (COL) ¶ 2.) The WCJ further
concluded that Claimant is entitled to indemnity benefits, minus a credit for short-
term disability payments, and medical benefits beginning June 27, 2013. (COL ¶
4-6.)
Employer appealed to the Board. On appeal, Employer argued: (1) that the
WCJ’s findings were not supported by substantial and competent evidence to
establish a causal connection between Claimant’s work and illness, in part because
Dr. Peck’s testimony regarding causation was equivocal; (2) that the WCJ did not
give objective bases for his credibility determinations, i.e., that the WCJ did not
issue a reasoned decision; and (3) that the WCJ capriciously disregarded competent
evidence of record. (R.R. at 514a-16a.) The Board, finding no error, affirmed.
The Board held that “the testimony of Claimant and Dr. Peck, which was accepted
as credible, constitutes substantial, competent evidence to support the WCJ’s
finding that Claimant’s Legionnaires[’] Disease and resulting complications were
causally related to his employment with [Employer].” (Board Op. at 13.) The
Board disagreed that Dr. Peck’s testimony was equivocal and insufficient because
“a review of Dr. Peck’s testimony as a whole indicates that Legionnaires[’]
Disease is a waterborne illness and that in this case, Claimant’s exposure to water
17
while working on beverage machines . . . caused him to contract the Disease.” (Id.
at 13-14.) Employer now petitions this Court for review.3
III. Employer’s Appeal
On appeal, Employer raises the same arguments raised to the Board. We
shall address each issue in turn.4
3
“Our review is limited to determining whether the necessary findings of fact are
supported by substantial evidence, whether Board procedures were violated, whether
constitutional rights were violated or [whether] an error of law was committed.” Haddon
Craftsmen, Inc. v. Workers’ Comp. Appeal Bd. (Krouchick), 809 A.2d 434, 438 n.2 (Pa.
Cmwlth. 2002). Substantial evidence is
relevant evidence that a ‘reasonable person might accept as adequate to support a
conclusion.’ In reviewing a decision for substantial evidence, the court must view
the evidence in the light most favorable to the party who prevailed before the
WCJ and draw all reasonable inferences from the evidence in favor of the
prevailing party. . . . [I]t is irrelevant whether the record contains evidence to
support findings other than those made by the WCJ; the critical inquiry is whether
there is evidence to support the findings actually made.
Pocono Mountain Sch. Dist. v. Workers’ Comp. Appeal Bd. (Easterling), 113 A.3d 909, 918 (Pa.
Cmwlth. 2015) (citations omitted).
4
We understand that the Board’s Opinion did not contain separate reasoning on whether
the WCJ issued a reasoned decision and whether the WCJ capriciously disregarded evidence of
record and that this Court is charged with reviewing Board decisions, not WCJ decisions.
Dowhower v. Workers’ Comp. Appeal Bd. (Capco Contracting), 934 A.2d 774, 779 (Pa.
Cmwlth. 2007). However, the Board’s Opinion contains sufficient discussions on the evidence
presented and the findings of the WCJ to justify its decision to affirm the WCJ, and Employer
does not raise the Board’s failure to address these arguments or otherwise object to this Court
considering these arguments herein. In the interest of judicial economy, we will address
Employer’s arguments.
18
A. Substantial and Competent Evidence
Pursuant to the Act, compensation is provided for only those injuries that
arise in the course and scope of employment. Sections 301(a) and 301(c) of the
Act, 77 P.S. §§ 431, 411. A claimant bears the burden of proving his or her right
to compensation, including that the injury was sustained in the course and scope of
employment. Giant Eagle, Inc. v. Workers’ Comp. Appeal Bd. (Thomas), 725
A.2d 873, 876 (Pa. Cmwlth. 1999). Whether the injury was sustained in the course
and scope of employment is a legal determination based on the WCJ’s findings that
are supported by substantial evidence. Marazas v. Workers’ Comp. Appeal Bd.
(Vitas Healthcare Corp.), 97 A.3d 854, 861 (Pa. Cmwlth. 2014). The evidence
required to establish a causal connection between the injury and the claimant’s
employment “is dependent upon whether or not the injury is obviously work-
related.” Giant Eagle, 725 A.2d at 876. If the connection is obvious, no expert
medical testimony is required. Id. If the causal connection is not obvious, the
causal connection must be established by unequivocal medical testimony. Id.
“Medical testimony is deemed to be unequivocal if, after providing a
foundation, the witness testifies that he believes that the fact exists.” Whiteside v.
Workmen’s Comp. Appeal Bd. (Unisys Corp.), 650 A.2d 1202, 1207 (Pa. Cmwlth.
1994). The phrase unequivocal medical testimony appears to require some level of
certainty. Yet, it is not the law that “every utterance which escapes the lips of a
medical witness on a medical subject, must be certain, positive, and without
reservation, exception, or peradventure of a doubt.” Phila. Coll. of Osteopathic
Med. v. Workmen’s Comp. Appeal Bd. (Lucas), 465 A.2d 132, 134-35 (Pa.
Cmwlth. 1983).
Whether medical testimony is unequivocal is a conclusion of law,
fully reviewable by this Court; to make this determination, we must
19
examine the testimony as a whole, recognizing that a final decision
should not rest on a few words taken out of context. “[I]t is not
absolutely essential that the expert say ‘that it is my professional
opinion’ and it is sufficient for the expert to say ‘I think’ or ‘I believe’
as the assertion of his opinion.”
Giant Eagle, 725 A.2d at 876 (quoting Phila. Coll. of Osteopathic Med., 465 A.2d
at 134). Medical experts testifying to a causal connection between the injury and
the claimant’s employment “must testify, not that the injury or condition might
have or possibly came from the assigned cause, but that in his professional opinion
the result in question did come from the assigned cause.” Lewis v. Com., 498
A.2d 800, 802 (Pa. 1985). While absolute certainty is not required, testimony
which is based upon possibilities is not competent and insufficient to establish a
causal connection. Id.
In forming an opinion, a medical expert is entitled to rely on the reports of
others so long as those reports are “customarily relie[d] upon in the practice of his
profession,” and may rely upon facts of which he has no personal knowledge so
long as those facts are supported by evidence of record. City of Phila. v. Workers’
Comp. Appeal Bd. (Kriebel), 29 A.3d 762, 770 (Pa. 2011). Further, a medical
expert may rely on the personal history given to him by the claimant, so long as the
claimant’s testimony is competent and accepted as true by the factfinder. Somerset
Welding & Steel v. Workmen's Comp. Appeal Bd. (Lee), 650 A.2d 114, 118 (Pa.
Cmwlth. 1994).
Employer argues that Claimant has not established that his injuries arose in
the course and scope of his employment because the medical evidence supporting
his claim is equivocal. Employer contends that the evidence shows that the source
of Claimant’s Legionnaires’ Disease is unknown and that Dr. Peck’s testimony is
less than positive, based on possibilities, and internally inconsistent. Employer
20
further contends that Dr. Peck is not qualified to provide testimony regarding
Claimant’s Legionnaires’ Disease because he has had no specific training on the
disease, did not actually start treating Claimant until Claimant was no longer
suffering from the disease, and had no objective knowledge of Claimant’s work
activities.
Employer relies on May Department Stores v. Workmen’s Compensation
Appeal Board (Smith), 525 A.2d 33 (Pa. Cmwlth. 1987), to argue that Dr. Peck’s
testimony is equivocal and insufficient to establish causation. There, a deceased
claimant’s spouse filed a claim petition alleging that her husband contracted
Legionnaires’ Disease at work and sought compensation under Section 108(n) of
the Act.5 May Dep’t Stores, 525 A.2d at 33-34. The decedent’s doctor testified
that the decedent’s Legionnaires’ Disease was work-related. Id. at 35. The
Referee (now, WCJ) and the Board found the doctor competent and awarded
benefits to decedent’s spouse. Id. at 33. On appeal, this Court reviewed the
doctor’s testimony as a whole and concluded that his testimony was equivocal, and
5
Added by Section 1 of the Act of October 17, 1972, P.L. 930, 77 P.S. § 27.1(n). Section
108(n) provides:
The term “occupational disease,” as used in this act, shall mean only the
following diseases.
...
(n) All other diseases (1) to which the claimant is exposed by reason of his
employment, and (2) which are causally related to the industry or occupation, and
(3) the incidence of which is substantially greater in that industry or occupation
than in the general population. For the purposes of this clause, partial loss of
hearing in one or both ears due to noise; and the diseases silicosis, anthraco-
silicosis and coal workers’ pneumoconiosis resulting from employment in and
around a coal mine, shall not be considered occupational diseases.
Id.
21
therefore, not competent. We noted that the doctor, when pressed, “did not
volunteer to give details as to the basis for his opinion, and did not elaborate upon
his cursory answers.” Id. at 35. The doctor testified that his conclusion was based
on “the assumption” that “[p]eople that work in damp places, refrigeration, people
that work for ducts, . . . they seem to have more incidents.” Id. (emphasis added).
The doctor further testified that he never spoke to the decedent about his job duties
and had no knowledge of the decedent’s contacts with damp places outside of
work. Id.
Upon review of Dr. Peck’s testimony as a whole, we conclude that Dr.
Peck’s opinion expressed in his deposition is unequivocal and competent. While
Dr. Peck could not say at which location on Claimant’s route Claimant contracted
Legionnaires’ Disease, Dr. Peck never wavered from his opinion that Claimant’s
“Legion[n]aires[’ D]isease is a direct result of his occupation.” (R.R. at 279a.) On
cross examination, Dr. Peck acknowledged that he could not say with 100 percent
certainty that Claimant did not contract the disease outside of work, as nothing is
100 percent certain. (Id. at 288a.) Yet, Dr. Peck maintained that “based on
medical information and the history of how Legion[n]aires[’ D]isease is
contracted[,]” it is “most likely” that Claimant contracted the disease from
Claimant’s intimate contact from beverage machines and that his opinion was
stated “within a reasonable degree of medical certainty.” (Id. (emphasis added).)
This Court has long held that “[m]edical testimony need not be given with
unqualified certainty. So long as the witness does not recant his initial opinion, his
testimony, if accepted by the fact finder, is competent evidence to support an
award of benefits.” Brooks Drug, Inc. v. Workmen’s Comp. Appeal Bd. (Patrick),
636 A.2d 246, 249 (Pa. Cmwlth. 1993). Unlike the doctor in May Department
22
Stores, whose testimony lacked foundation because the doctor never spoke to the
claimant about his work, Dr. Peck’s opinion was grounded in his discussion with
Claimant on Claimant’s job duties and Dr. Peck’s understanding that Claimant
was, from time to time, sprayed in the face by dirty water. (R.R. at 279a.) The
facts relied upon by Dr. Peck in forming his opinions were credited by the WCJ as
true. (FOF ¶¶ 23-24); see Somerset Welding & Steel, 650 A.2d at 118 (“medical
causation testimony is not rendered equivocal because it is based on the medical
expert's assumption of the truthfulness of the information provided; however, the
supposed facts forming the basis of that determination must be proven by
competent evidence and accepted as true by the [WCJ].”). Also unlike the doctor
in May Department Stores, who opined that people who work in the claimant’s line
of work seem to have more incidents of Legionnaires’ Disease, Dr. Peck testified
that Claimant’s job “is precisely the type of job where one would get
Legion[n]aires[’ D]isease.” (R.R. at 280a.)
Employer contends that Dr. Peck’s lack of specific training in Legionnaires’
Disease, and the fact that Dr. Peck started treating Claimant after Claimant
recovered from the disease, makes him not qualified to provide expert testimony.
Although it is true that Dr. Peck does not have the specific training or experience
as Dr. Snepar, it is well settled that “a physician is competent to testify as to
specialized areas of medicine even though he or she is not a specialist or certified
in those areas.” Sch. Dist. of Phila. v. Worker’s Comp. Appeal Bd. (Hilton), 84
A.3d 372, 375 (Pa. Cmwlth. 2014), aff’d, 117 A.3d 232 (Pa. 2015). It is also well
established that a WCJ may give greater credence to a treating physician than to
one who offers an opinion for litigation purposes. Id. Such questions go to
evidentiary weight, not competency, which is not in this Court’s purview. It is the
23
WCJ, not this Court, that is “the exclusive arbiter of credibility and evidentiary
weight.” LTV Steel Co., Inc. v. Workers’ Comp. Appeal Bd. (Mozena), 754 A.2d
666, 676 (Pa. 2000).
Employer also argues that record evidence shows that the cause of
Claimant’s Legionnaires’ Disease is unknown. Employer notes that Dr. Snepar
opined that “[i]t’s not possible to declare the source of [Claimant]’s Legionnaires’
Disease with any degree of medical certainty[,]” (R.R. at 439a), and Mr. Frazer
opined that it was unlikely that the machines Claimant serviced aerosolized water,
(Id. at 313a). Employer is correct that the record contains conflicting testimony.
However, this is of no moment as the WCJ credited Dr. Peck’s contrary testimony.
“We are bound by the WCJ’s credibility determinations.” Minicozzi v. Workers’
Comp. Appeal Bd. (Indus. Metal Plating, Inc.), 873 A.2d 25, 29 (Pa. Cmwlth.
2005). If we find that the record contains evidence a reasonable person might find
sufficient to support the findings, “the findings must be upheld, even though the
record may contain conflicting evidence.” Id. Dr. Peck’s testimony represents
substantial evidence and we will not disturb the WCJ’s findings in this regard.
B. Reasoned Decision
Employer next argues that the WCJ failed to issue a reasoned decision
within the meaning of Section 422(a) of the Act. A WCJ’s decision is reasoned
when it “allows for adequate review by the [Board] without further elucidation and
if it allows for adequate review by the appellate courts under applicable review
standards.” Daniels v. Workers’ Comp. Appeal Bd. (Tristate Transp.), 828 A.2d
1043, 1052 (Pa. 2003). “[I]n rendering a reasoned decision in a case with
24
conflicting evidence, the WCJ ‘must adequately explain the reasons for rejecting or
discrediting competent evidence.’” Id. (quoting 77 P.S. § 834).
According to Employer, the WCJ “failed to articulate an objective basis for
his determination that the testimony of Dr. Peck was more credible and persuasive
than the testimonies of Dr. Snepar and Mr. Frazer[,] and failed to adequately
explain the reasons for rejecting” Dr. Snepar and Mr. Frazer’s testimonies.
(Employer’s Br. at 38.) We disagree. The WCJ’s opinion states that Dr. Peck’s
testimony was credited over the others because, as Claimant’s treating physician,
he was “in an overall better position to evaluate the Claimant’s condition than the
one time review of medical records by [Dr. Snepar].” (FOF ¶ 23.) The WCJ also
found Dr. Peck’s opinions were consistent with the Claimant’s history and
Claimant’s ongoing physical limitations, as well as supported by Claimant’s
medical records. (Id.) The WCJ’s opinion further states that Mr. Frazer’s
credibility is undermined by the fact that he did not evaluate Employer’s facilities
until sixteen months after Claimant contracted Legionnaires’ Disease, and that Mr.
Frazer never traveled to any of the locations at which Claimant serviced the
machines or tested any machines on which Claimant worked. (Id.) The WCJ
credited Claimant’s testimony regarding his work activities over the opinions of
Mr. Frazer based on the WCJ’s observations of Claimant’s demeanor in the video
deposition as well as the fact that Claimant’s testimony is consistent with the
documentary evidence in the case. (Id. ¶ 22.) These explanations more than
satisfy the reasoned decision requirements of Section 422(a) of the Act.
25
C. Capricious Disregard
Finally, Employer argues that the WCJ capriciously disregarded the
evidence of record. Employer contends that the WCJ “deliberately ignored”
evidence showing, inter alia, that Legionnaires’ Disease is not extremely rare and
can be contracted in many different places; that the machines Claimant repaired do
not aerosolize water; that Claimant was not aware of anyone else at work that
contracted the disease; that Dr. Peck likely never treated anyone with
Legionnaires’ Disease and Claimant was no longer suffering from the disease
when he began treating with Dr. Peck; that the Pennsylvania Department of Health
alert shows that Claimant could have been exposed through multiple other sources;
and that Claimant was treated for pneumonia one month before contracting the
disease and, as a smoker, his risks of contracting the disease are increased.
(Employer’s Br. at 44-46.)
In defining the capricious disregard standard, we have explained:
Capricious disregard occurs only when the fact-finder deliberately
ignores relevant, competent evidence. A capricious disregard of the
evidence in a workers’ compensation case is a deliberate and baseless
disregard of apparently trustworthy evidence. We emphasize our
Supreme Court’s pronouncement that, where there is substantial
evidence to support an agency’s factual findings, and those findings in
turn support the conclusions, it should remain a rare instance in which
an appellate court would disturb an adjudication based upon the
capricious disregard of material, competent evidence.
Williams v. Workers’ Comp. Appeal Bd. (USX Corp.-Fairless Works), 862 A.2d
137, 144 (Pa. Cmwlth. 2004) (citations omitted). The express consideration and
rejection of evidence based upon an adverse credibility determination is not a
capricious disregard of the evidence, it is a rejection of the evidence. Id. at 145.
26
Upon review, we conclude that the WCJ did not capriciously disregard
relevant evidence as the WCJ considered the entirety of the evidence alleged by
Employer to be capriciously disregarded. The WCJ detailed the evidence at length
and either drew a conclusion from such evidence that differed from the conclusion
advocated by Employer, or rejected the evidence based upon an adverse credibility
determination.
The majority of the evidence Employer contends was disregarded derives
from Dr. Snepar’s testimony. As the WCJ summarized Dr. Snepar’s testimony at
length in three pages of findings, and explained why he rejected Dr. Snepar’s
testimony in favor of Dr. Peck’s testimony, it cannot be said that he deliberately
ignored the evidence. See id. (“an express consideration and rejection, by
definition, is not capricious disregard”). Similarly, Mr. Frazer’s testimony was
extensively summarized in the WCJ opinion and the WCJ explained his reasons
why he found Claimant’s testimony on his work duties more credible than Mr.
Frazer’s testimony. With regard to Mr. Frazer’s testimony that the machines
Claimant repaired do not aerosolize water, other evidence of record shows that
while aerosolized water is the most common way Legionnaires’ Disease is spread,
it is not the exclusive manner, (FOF ¶ 20l), and that Mr. Frazer did not observe any
malfunctioning machines like the ones Claimant was tasked to repair. (R.R. at
316a.) We further conclude that the WCJ did not ignore the Department of
Health’s alert, but rather considered the alert, and viewed it as supporting his
finding that Claimant contracted Legionnaires’ Disease at work rather than to find,
as Employer argues, that Claimant could have contracted Legionnaires’ Disease in
a host of places. (FOF ¶ 22.) In sum, the WCJ’s Decision, specifically its lengthy
summaries of the testimonies and exhibits, and its discussion of credibility
27
determinations, shows that the WCJ did not capriciously disregard relevant
evidence of record.
For the foregoing reasons, the Order of the Board is affirmed.
________________________________
RENÉE COHN JUBELIRER, Judge
28
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Nestle USA, Inc./Vitality, :
Petitioners :
:
v. : No. 890 C.D. 2016
:
Workers’ Compensation Appeal :
Board (Gallen), :
Respondent :
ORDER
NOW, March 27, 2017, the Order of the Workers’ Compensation Appeal
Board, entered in the above-captioned matter, is hereby AFFIRMED.
________________________________
RENÉE COHN JUBELIRER, Judge