Dillon v. Workers' Compensation Appeal Board

DISSENTING OPINION BY

Judge FRIEDMAN.

Because this court has previously held that testimony by a medical witness who refuses to acknowledge the causal presumption afforded by section 301(e) of the Workers’ Compensation Act (Act) 1 is not competent, I respectfully dissent.

James Dillon (Claimant) worked as a firefighter for the City of Philadelphia (Employer) for more than twenty-one years. Claimant filed a claim petition alleging an injury in the nature of heart disease caused by exposure to harmful substances in the course of his employment. Employer denied the allegations, and the case was assigned to a WCJ. Following hearings, the WCJ relied on the testimony of Employer’s medical expert, Norman Makous, M.D., to conclude that Employer successfully rebutted the presumption of causation afforded by section 301(e) of the Act 2 and that Claimant failed to meet his burden of proof.

The majority concludes that Dr. Ma-kous’ testimony was competent and sufficient to rebut the statutory presumption of causation in this case. However, contrary to the majority’s view that Dr. Makous acknowledged the statutory presumption, the record reflects that Dr. Makous re *422 fused to consider the existence of any causal relationship ..between long-term exposure to the hazards of firefighting and heart disease. In fact, Dr. Makous emphatically rejected the possibility of such a causal relationship.

Dr. Makous testified that:

there was no indication that firefighting contributed to this since [Claimant] had no specific incident to cause him a coronary kind of problem and he was asymptomatic and firefighting as an occupation has not been proved medically as a risk factor for coronary disease in the way that cigarette smoking, elevated cholesterol, high blood pressure, sugar abnormalities and positive family history have been established over and over again over the past 30 years [as] the reasons for coronary artery atherosclerosis in most people. Firefighting has not been so established.

(R.R. at 140a-41a.)

Dr. Makous then stated that:

Even if in time it is proven, which so far as I said it has not been proven that firefighting is a risk factor for coronary artery disease, then one would also have to assume that like with smoking from cigarettes or any other acquired risk factors as soon as they’re controlled or eliminated, such as stopping smoking cigarettes, the progression of the coronary disease not only slows down but can actually reverse....

(R.R. at 142a (emphasis added)).

On cross-examination, Dr. Makous was asked:

Q: [P]utting aside an acute event such as a myocardial infarction, Doctor, would it be fair to say that you do not accept the causal relationship between long-term exposures as a firefighter to heat, smoke, gases and fumes and the development of coronary artery disease; would that be a fair statement?

A: I do not accept it because it is unproved.

Q: In your opinion?

A: Not in my opinion. There’s nothing in the literature that supports to the same degree [sic] as known risk factors. I have records ... and I can give you the specific reference if you want it, and this also states that there is no evidence that firefighting increases the cardiac mortality and it’s unproved.

[I]t may be proven in time, but at the moment nobody has done a study that really demonstrates that there is a connection.

From a medical point of view, there is no strong medical evidence of an association and when there has [sic] been studies of this done, they find that firefighters have the same risks....

In other words, the risk factors of firefighters is [sic] the same as it is for every other individual and they have no extraordinary type of problem in a general way.

Now, therb are specific instances of an acute episode like you excluded in your question.

Q: Well, Doctor, you always exclude it when you testify?

A:, That’s right. And it’s quite possible that there are some exposures that will aggravate that they get intermittently depending on the kind of chemical fumes, but this has not" been proved.

(R.R. at 160a-62a (emphasis added)).

In sharp contrast to Dr. Makous’ opinion, by enacting section 108(o) the legislature has decreed that heart disease is an occupational hazard of firefighting. Marcks v. Workmen’s Compensation Appeal Board (City of Allentown, Department of Public Safety, Bureau of Fire), *423 119 Pa.Cmwlth.214, 547 A.2d 460 (1988). This statutory presumption is not conclusive, however, and it may be rebutted by substantial competent evidence. Buchanan v. Workmen’s Compensation Appeal Board (City of Philadelphia), 659 A.2d 54 (Pa.Cmwlth.), appeal denied, 542 Pa. 675 , 668 A.2d 1187 (1995). But testimony that adamantly rejects any causal relationship between exposure to the hazards of firefighting and heart disease renders the whole of that opinion testimony incompetent. Marcks.

In Marcks, we held that the opinion of the employer’s medical expert that the claimant’s thirty-three years of exposure to the hazards of an occupational disease had a “practically non-existent” effect on the claimant’s heart and lungs was incompetent as a matter of law. Citing numerous prior decisions, we observed that

[i]n none of these cases has the extraordinary proposition been advanced that breathing in heated smoke, fumes and gases while fighting a fire has no long term effect on the heart and lungs. To the contrary, this Court has consistently held, and the legislature has consistently intended by continued en-aetment of Section 108(o), that fire fighting is a hazardous occupation by reason of the dangerous fumes and gases that a fire fighter breathes while going about his trade.

Id. at 464 (emphasis added).

I submit that Dr. Makous’ testimony that firefighters have no greater risk of suffering heart disease than any other individual is the equivalent of stating that Claimant’s twenty-one years as a firefighter had a “practically non-existent effect” on Claimant’s heart. Because the testimony of Dr. Makous is substantially similar to the medical testimony at issue in Marcks, our holding in Marcks requires a determination that the testimony of Dr. Makous is incompetent as a matter of law. When reviewed in its entirety, 3 Dr. Ma-kous’ testimony reflects that Dr. Makous completely and emphatically rejects the legitimacy of the evidentiary presumption the legislature has provided firefighters under section 108(o) of the Act. Indeed, based upon this record, I cannot envision circumstances, other than some “acute episode,” in which Dr. Makous would acknowledge the validity of section 108(o) of the Act. 4 Because Dr. Makous’ testimony directly conflicts with section 108(o) of the *424 Act, as well as over forty years of settled case law, I would hold that the WCJ erred in relying on Dr. Makous’ testimony in this ease. See Edwards v. Workmen’s Compensation Appeal Board (Hunlock Township), 137 Pa.Cmwlth.70, 585 A.2d 56 (1990), appeal denied, 528 Pa. 633 , 598 A.2d 286 (1991), in which we held that it is error to deny a firefighter the benefit of the presumption afforded by section 301(e) of the Act.

I also agree with Claimant’s contention that the WCJ’s decision is not a reasoned decision as required by section 422(a) of the Act. I believe that the WCJ’s findings are facially flawed and, more important, inadequate for purposes of appellate review. The WCJ made no findings concerning Claimant’s testimony about his work history or his duties as a firefighter, and, therefore, the opinion contains no findings as to whether Claimant was exposed to heat, smoke, fumes or gases (the hazards described in section 108(o)), during his twenty-one years of fire fighting. Such findings are necessary to the determination of whether Claimant satisfied his burden of proving the existence of the hazards described in the Act. See Oriole Chemical Carriers, Inc. v. Workers’ Compensation Appeal Board (Ambler), 720 A.2d 842 (Pa.Cmwlth.1998).

Accordingly, I would vacate the WCAB’s decision and remand this matter for a new decision based upon all of the competent evidence of record.

Judge SMITH-RIBNER joins in this dissent.

. Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 413

. Section 301(e) of the Act states:

Presumption regarding occupational disease

If it be shown that the employe, at or immediately before the date of disability, was employed in any occupation or industry in which the occupational disease is a hazard, it shall be presumed that the employe’s occupational disease arose out of and in the course of his employment, but this presumption shall not be conclusive.

77 P.S. § 413. Section 108(o) of the Act, 77 P.S. 27.1, provides that the term "occupational disease” includes diseases of the heart and lungs resulting in disability after four or more years of service in fire fighting, caused by extreme over-exertion in times of stress or danger or by exposure to heat, smoke, fumes or gases, arising in the course of the firefighter’s employment.

. The majority acknowledges that, in determining whether the testimony of a witness is competent, the court must consider the witness' testimony as a whole. Buchanan. Nevertheless, the majority relies on only a few words taken out of context to reach its conclusion. For example, where Dr. Makous states that firefighting "has not been proved medically as a risk factor for heart disease in the way that cigarette smoking [and other factors] have,” the majority focuses on the words "in the way that,” (Majority op. at 10), as evidence that Dr. Makous acknowledges the presumed relationship between firefighting and heart disease. However, when considered in the context of Dr. Makous' other statements, repeatedly rejecting any such relationship, I believe the majority’s inference is unsupported.

. Compare City of Wilkes-Barre v. Workmen's Compensation Appeal Board (Zuczek), 541 Pa. 435 , 664 A.2d 90 (1995); City of Philadelphia v. Workers' Compensation Appeal Board (Rilling), 827 A.2d 1258 (Pa.Cmwlth.), appeal denied, — Pa.-, 854 A.2d 968 (No. 405 EAL 2003, filed December 30, 2003); Kelley v. Workers’ Compensation Appeal Board (City of Wilkes-Barre), 725 A.2d 232 (Pa.Cmwlth.), appeal denied, 560 Pa. 676 , 742 A.2d 173 (1999); and Buchanan . In those cases, the employers' medical witnesses acknowledged a causal relationship between fire fighting and diseases of the heart and/or lungs, but nevertheless opined that the claimants’ disability arose from other causes. In Buchanan , for example, the court determined that Dr. Makous' testimony reflected he gave the claimant the benefit of the rebuttable presumption contained in section 108(o) of the Act and, thus, the court construed his testimony as giving *424 sufficient deference to the legislature's decree that there is a causal relationship between fire fighting and heart disease. (Dr. Makous has been performing medical examinations on behalf of the City since 1986. (R.R. at 124a.)) In this proceeding, however, Dr. Makous unambiguously rejected the statutory presumption.