# 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/9638826

## 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:** Dissent by Kelley
- **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/9638826

## Opinion text

KELLEY, Judge,
dissenting.
I respectfully object to the majority’s legal conclusion that claimant’s aggravation of her preexisting asthmatic condition is obviously work-related. Initially, I believe that the evidence upon which the majority relies in making this determination is clearly susceptible to contrary interpretation. Simply because claimant never experienced an allergic reaction at work prior to or after the June 13, 1992 incident does not mean that an obvious causal relationship exists between the workplace and the aggravation of claimant’s preexisting asthmatic condition. This proposition is supported by the fact that claimant worked in the same environment for a month prior to the June 13, 1992 episode • without experiencing an allergic reaction.
Furthermore, other than testifying that she experienced an allergic reaction at work, claimant failed to present any competent evidence causally relating the reaction to the workplace. Claimant does not know which specific allergen causes her to have a reaction or whether the allergen existed in the work environment. Thus, any testimony claimant could offer regarding her allergies would be a medical conclusion which claimant is not qualified to give. Consequently, I am perplexed as to how claimant’s allergic reaction can be legally described as “obviously work-related.” Are we to assume that all allergic reactions are immediate? Are we always to assume an allergic reaction which occurs at work is due to an allergen in the workplace, as opposed to something a claimant consumes such as food or medication? There are simply too many intangibles involved with this type of injury for this court to conclude that claimant’s injury is obviously related to an allergen in the work place.
Based on my review of cases involving the aggravation of a preexisting asthmatic condition or preexisting obstructive lung disease, this court has consistently required a claimant to present unequivocal medical testimony in order to establish the requisite connection between the workplace and the aggravation of the preexisting condition. 1 Vazquez v. *881 Workmen’s Compensation Appeal Board (Masonite Corporation), 687 A.2d 66 (Pa.Cmwlth.1996), petition for allowance of appeal denied, — Pa. -, 724 A.2d 350 (1998); Fink v. Workmen’s Compensation Appeal Board (Walbridge Corporation), 678 A.2d 853 (Pa.Cmwlth.1996), reversed on other grounds, 551 Pa. 432 , 710 A.2d 1139 (1998); Knapp v. Workmen’s Compensation Appeal Board (GTE), 671 A.2d 258 (Pa.Cmwlth.1996); Povanda v. Workmen’s Compensation Appeal Board (Giant Eagle Markets, Inc.), 146 Pa.Cmwlth. 320 , 605 A.2d 478 (1992), petition for allowance of appeal denied, 533 Pa. 603 , 617 A.2d 1276 (1992); 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) and Farquhar v. Workmen’s Compensation Appeal Board (Corning Glass), 515 Pa. 315 , 528 A.2d 580 (1987). I believe that this evidentiary standard is proper given the inherent complex nature of this type of injury. Thus, claimant needed to present unequivocal medical testimony for the aggravation to be compensable.
Because I believe that claimant needed to provide unequivocal medical testimony establishing the requisite causal relationship between the workplace and the aggravation of her preexisting asthmatic condition, I reviewed in their entirety the reports of claimant’s medical witness, Richard Green, M.D. 2 With regard to claimant’s aggravation of her asthmatic condition, Dr. Green initially opined that it was “probably due to an ingredient in the baking preparation,” but after performing several tests the doctor noted that he was unable to pinpoint the specific allergen which caused claimant’s reaction on June 12, 1992. Original Record (O.R.), Dr. Green’s July 9, 1992 and September 16, 1992 report. The doctor further stated that claimant is “an underlying allergic individual who will be easily irritated by working in a hot, humid environment ... and by airborne chemicals and particulates such as flour dust.” O.R., Dr. Green’s September 16,1992 report. Dr. Green, however, made this statement after allergy skin testing revealed that claimant was not allergic to wheat flour and was minimally reactive to baker’s yeast. Id. The doctor also noted that claimant had a history of a medication allergy.
Clearly, Dr. Green’s medical opinions are less than positive and inconsistent. Therefore, they do not constitute legally competent evidence establishing the requisite causal relationship between the workplace and claimant’s aggravation of her asthmatic condition. See May Department Stores v. Workmen’s Compensation Appeal Board (Smith), 105 Pa.Cmwlth. 580 , 525 A.2d 33 (1987), petition for allowance of appeal denied, 516 Pa. 624 , 532 A.2d 21 (1987). I must also note that Dr. Green’s medical opinions are not refuted and were not subject to cross examination by employer. 3 Dr. Green did not admit to uncertainties regarding the cause of his diagnosis. Rather, the doctor provided an equivocal medical opinion due to inconclusive allergy tests.
Accordingly, I would reverse the Board’s order and dismiss claimant’s claim petition.
Judge LEADBETTER joins in this dissenting opinion.
. The majority of cases which have concluded that claimant’s disability is obviously work-related involve claimants who contemporaneously experience pain while lifting an object or being struck by an object. See Dana Corp. v. Workmen’s Compensation Appeal Board (Hollywood), 706 A.2d 396 (Pa.Cmwlth.1998) (obvious causal connection when claimant is struck in the right knee by steel bar measuring ten inches wide by fifteen feet long); Davis v. Workmen’s Compensation Appeal Board (United Parcel Service), 92 Pa.Cmwlth. 294 , 499 A.2d 703 (1985) (obvious causal connection present when claimant’s back injury immediately manifested itself after claimant engaged in heavy lifting); Sacks v. Workmen’s Compensation Appeal Board, 43 Pa.Cmwlth. 259 , *881 402 A.2d 293 (1979) (obvious causal relationship established when claimant suffers back pain after lifting 140 pound handicapped child onto a school bus); Morgan v. Giant Markets, Inc., 483 Pa. 421 , 397 A.2d 415 , (1979) (obvious causal connection exists when claimant experiences severe pain and feelings of paralysis after attempting to unload baking equipment from a truck).
. I note that the majority in dicta concluded that Dr. Green’s medical reports were unequivocal and established that claimant’s aggravation was causally related to the workplace.
Claimant relied solely on the medical reports of Dr. Green because she requested workers' compensation benefits for less than 52 weeks.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9638826. Public record. Not legal advice.