# Giant Eagle, Inc. v. Workers' Compensation Appeal Board > Commonwealth Court of Pennsylvania · March 5, 1999 · 725 A.2d 873 URL: https://www.frixlaw.com/law-library/cases/9638825 ## Case - **Full name:** GIANT EAGLE, INC., Petitioner, v. WORKERS’ COMPENSATION APPEAL BOARD (THOMAS), Respondent - **Court:** Commonwealth Court of Pennsylvania - **Decided:** March 5, 1999 - **Citations:** 725 A.2d 873; 1999 Pa. Commw. LEXIS 152 - **Precedential status:** Published - **Opinion:** Concurring in part by Friedman - **Judges:** Colins, Doyle, Smith, Friedman, Kelley, Flaherty, Leádbetter - **Cited by:** 27 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9638825 ## Opinion text FRIEDMAN, Judge, concurring and dissenting. I concur with the majority’s determination that a causal connection existed between Mary Thomas’ (Claimant) employment and the aggravation of her pre-existing asthmatic condition; however, unlike the majority, I would not find that Claimant’s injury was obviously work-related. Rather, I agree with Judge Kelley’s dissent that this type of injury involves too many intangibles for us to recognize such an obvious relationship. Thus, I too would require Claimant to prove a causal relationship between her allergic episode and her work by means of unequivocal medical evidence. However, contrary to the position taken by Giant Eagle, Inc. (Employer) and Judge Kelley, I believe that Claimant has succeeded in this proof. In support of her claim petition, Claimant testified on her own behalf and presented the narrative reports of Richard L. Green, M.D. 1 *879 Dr. Green’s reports indicated that he began treating Claimant on July 1, 1992, and, after reviewing Claimant’s medical history and pri- or treatment, Dr. Green suggested that Claimant undergo a complete allergy survey. (WCJ’s Findings of Fact, No. 5(a).) Dr. Green found that Claimant tested positive for an allergy to molds and exhibited minimal reactivity to baker’s yeast. (WCJ’s Findings of Fact, No. 5(b).) Although he was unable to identify the specific allergen responsible for Claimant’s acute episode of June 13, 1992, Dr. Green opined that a multitude of factors, including a hot and humid work environment, Claimant’s possible yeast allergy and the irritant effect of flour, caused her symptoms. (WCJ’s Findings of Fact, No. 5(c).) Dr. Green stated that Claimant’s June 13, 1992 episode was “probably due to an ingredient in the baking preparation,” and he concluded that “[Claimant has an underlying condition that is easily irritated by working in an environment characterized by hot and humid conditions, airborne chemicals, or airborne particulates such as flour dust.” (WCJ’s Findings of Fact, Nos. 5(d) and 5(e).) Accordingly, Dr. Green recommended that Claimant limit her exposure to such environments and that she seek other employment. (WCJ’s Findings of Fact, No. 5(e); R.R. at 80a.) The WCJ accepted Dr. Green’s narrative reports as credible and stated that “Dr. Green’s reports read as a whole unequivocally establish that [Claimant’s rash was caused by her work environment and that she was disabled from working in that environment.” (WCJ’s Findings of Fact, No. 10) (emphasis added.) I would agree. In arguing that Dr. Green’s medical opinion was equivocal with regard to the work-relatedness of Claimant’s injuries, Employer points to a portion of Dr. Green’s July 9, 1992 report in which Dr. Green states that Claimant had the allergic episode at work “probably due to an ingredient in the baking preparation.” (R.R. at 78a) (emphasis added). However, I believe that Dr. Green’s use of the term “probably,” taken in context, does not necessarily render his opinion equivocal. While I recognize that Dr. Green’s narrative reports are replete with terms that appear equivocal, a careful reading of the reports reveals that all terms of equivocality go to Dr. Green’s inability to specifically identify which allergen at work caused Claimant’s allergies to “flare.” 2 However, all of the “possibilities” to which Dr. Green refers as likely causes for Claimant’s June 13, 1992 incident were present in Claimant’s work environment; more than once, without equivocation, Dr. Green expressed the opinion that Claimant’s allergic reaction was caused by something at work. Thus, like the WCJ, I would conclude that, when taken as a whole, Dr. Green’s narrative reports unequivocally related Claimant’s rash and breathing difficulty to her work environment. (See WCJ’s Findings of Fact, No. 10.) With respect to Employer’s alternative argument, I must respectfully dissent from the majority’s determination that Claimant’s entitlement to benefits should end before May 10, 1993, the date Claimant obtained alter *880 nate employment that did not subject her to the allergens that previously aggravated her condition. .1 recognize that, under Inglis House v. Workmen’s Compensation Appeal Board (Reedy), 535 Pa. 135 , 634 A.2d 592 (1993), the claimant has the burden to establish the duration of disability; however, I believe that Claimant has met that burden where, as here, Claimant’s return to work at Employer’s workplace would likely cause her to suffer a recurrence of her injury. Fink v. Workmen’s Compensation Appeal Board (Walbridge Corporation), 678 A.2d 853 (Pa.Cmwlth.1996); Cox v. Workmen’s Compensation Appeal Board (Brookville Glove Manufacturing), 144 Pa.Cmwlth. 147 , 601 A.2d 404 (1991); see also Pawlosky v. Workmen’s Compensation Appeal Board (Latrobe Brewing Company), 514 Pa. 450 , 525 A.2d 1204 (1987). Although our supreme court in Bethlehem Steel Corporation v. Workmen’s Compensation Appeal Board (Baxter), 550 Pa. 658 , 708 A.2d 801 (1998), held that a claimant was not entitled to receive compensation benefits after recovering from an aggravation of a preexisting non-work related asthmatic condition, the court did not expressly overrule the general longstanding principle and holding of Fink, Cox and Pawlosky and, thus, I would apply those decisions here. Further, to the extent that Baxter overrules those cases by implication, I believe that Baxter was incorrectly decided based on the dissenting opinion of Justices Cappy and Nigro. Therefore, like the WCJ, I believe that May 10, 1993 is the proper date to terminate Claimant’s benefits. Accordingly, I would affirm the order of the WCAB without modification. . Initially, Employer objected to the offer of Dr. Green’s narrative reports on the basis of hearsay; however, the reports were ultimately admitted without objection after the parties stipulated that the period of Claimant's disability was less than 52 weeks. See Section 422 of the Workers’ Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 835. Dr. Green's narrative report of July 9, 1992 provides, in relevant part: Because of [Claimant’s] other allergic symptoms, in addition to her rash occurring at work, it was recommended that she undergo [a] complete allergy survey. She was tested by the scratch puncture technique.... Those tests were negative. She was to have been scheduled for subsequent testing to additional pollens, inhalants and foods. She was advised to continue with her Proventil and Atrovent Inhalers and Seldane tablets. It was my impression that [Claimant] is an allergic individual with respiratory allergies as well as dermatologic allergies that flared at *879 work probably due to an ingredient in the baking preparation. It was felt that she would benefit from a complete allergy investigation. (R.R. at 78a.) Dr. Green’s follow-up narrative report of September 16, 1992 provides, in relevant part: It is my impression that [Claimant] is an allergic individual.... I was unable to pinpoint the specific allergen involved in producing the reaction of June [13], 1992. However, [Claimant] felt that she was more allergic that entire week at work because of an increase in runny nose and sore throats, and nosebleeds. She also had some chest congestion that night of June [13] after being at work. A number of factors could have contributed to those symptoms including a hot and humid work environment, the possibility of yeast allergy as indicated by her positive skin test to mold, and an irritant effect of flour. Because the welts on her arms were present on areas that contacted the metal trays, this may represent an element of contact allergy as well. It is felt that [Claimant] is an underlying allergic individual who will be easily irritated by working in a hot, humid environment. She also will be more easily irritated by airborne chemicals and particulates such as flour dust. I suggested that she try to obtain employment in a more controlled environment that would limit such exposures. (R.R. at 80a.) . Dr. Green indicated that Claimant's reaction could have been caused by the hot and humid work environment, or by Claimant’s yeast allergy, or by the irritant effect of flour or by Claimant's contact with the metal baking trays. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9638825. Public record. Not legal advice.