# J. Mercer v. Active Radiator MPN, Inc. (WCAB)

> Commonwealth Court of Pennsylvania · June 3, 2024

URL: https://www.frixlaw.com/law-library/cases/9976379

## Case

- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** June 3, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Fizzano Cannon, J.
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jerry Mercer, :
Petitioner :
:
v. :
:
Active Radiator MPN, Inc. (Workers’ :
Compensation Appeal Board), : No. 1326 C.D. 2023
Respondent : Submitted: May 7, 2024

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION
BY JUDGE FIZZANO CANNON FILED: June 3, 2024

Jerry Mercer (Mercer) petitions for review from the October 18, 2023,
order of the Workers’ Compensation Appeal Board (Board). The Board affirmed
the January 27, 2023, order of the Workers’ Compensation Judge (WCJ). The WCJ
denied Mercer’s claim petition asserting that he sustained the occupational disease
of lead toxicity from his employment with Active Radiator MPN, Inc. (Employer).
Upon review, we affirm.

I. Factual and Procedural Background
On August 24, 2018, Mercer advised Employer that he had sustained a
work-related injury due to lead exposure, and on September 1, 2018, Employer
issued a notice of denial asserting that Mercer did not sustain a work-related injury.
Certified Record (C.R.) at 317-18.1 On September 4, 2020, Mercer formally filed a

1
Certified Record (C.R.) references are to electronic pagination.
claim petition seeking full disability benefits as of September 21, 2017, and ongoing,
with partial disability between July 1, 2018, and May 31, 2019. C.R. at. 7-10.
Mercer initially testified in an October 2020 deposition. C.R. at 322.
He is 60 years old and worked 40 hours per week since 2015 as a solderer and welder
for Employer, which produces custom radiators. Id. at 327-29. He worked with lead
solutions all day and wore safety gloves provided by Employer. Id. at 329-30 &
403. The lead was melted and kept in a liquid state in large dip pots. Id. at 331-32
& 403. The solution got on his clothes. Id. at 333. The process created smoke but
there were exhaust fans and a ventilation system. Id. at 334-35. He does not recall
being exposed to lead before working for Employer. Id. at 335. When he started,
Employer showed videos that recommended respirator masks with tubes and filters,
but he never received those masks. Id. at 337. He got small masks and boots, but
no lead-repellent clothing, coveralls, or eye protection. Id. at 337-38. He did not
change his clothes during lunch but would wash his face and hands. Id. at 404-05.
Mercer stated that sometimes he got sore in his nasal membranes and
had nosebleeds that he thought were from fumes, but he did not otherwise feel unwell
while working. C.R. at 340. He used to smoke about a pack of cigarettes a day but
stopped later because he could not afford it and once he realized he might have brain
damage from toxic exposure at work. Id. at 341 & 405-06. Workers had their blood
tested every six months and were given letters with the results. Id. at 342. In
September 2017, a supervisor told him and another worker that they were being let
go because he “just didn’t make out” on the job. Id. at 344. He applied for and
received unemployment benefits. Id. at 345. He has been on Social Security
Disability for 5-6 months, gets food stamps, and is on Medicare. Id. at 357-58.

2
He saw a doctor after he was let go and was given buspirone, an anxiety
medication that has been helpful. C.R. at 346. He worked in 2018-19 at two
restaurants but was laid off due to downsizing. Id. at 347-48. He has not worked
since then due to his anxiety and trust issues. Id. at 348 & 356. He did not have
emotional issues before; they started towards the end of his employment with
Employer and have worsened since he was let go. Id. at 349-50. He sees a counselor
once a week for his issues. Id. at 352. Physically, he has headaches and feelings of
pressure in his face, neck, and ears. Id. at 355.
On cross-examination, Mercer stated that he grew up in and around
West Philadelphia. C.R. at 361-62. He worked at various non-industrial jobs and
did some outdoor construction work on older houses. Id. at 363-65. He completed
nursing and electrician classes and worked with an electrician on older houses; he
still does some occasional electrical work for friends and family who pay him cash.
Id. at 367-75. He acknowledged filing an age discrimination claim against Employer
asserting that he was let go due to his age (rather than health issues) and received a
settlement in that matter. Id. at 408. Before working for Employer, he had no serious
physical issues. Id. at 410-11. He acknowledged treatment 30 years ago for cocaine
and alcohol use and has not used either since then; he does not smoke marijuana
anymore either. Id. at 413-14 & 422. He lives alone in a house but is unsure how
old it is. Id. at 421. He can maintain his house, pay his bills, drive, use a computer
and smartphone, and perform daily activities. Id. at 421-22. He acknowledged that
his October 2016 test results with high zinc2 levels advised him to see a doctor but
stated that Employer did not tell him to see a doctor, so he never did. Id. at 429-33.

2
As will be discussed, zinc levels can correlate with lead exposure levels.

3
After he was laid off in September 2017 and retained counsel, he was told that his
levels were higher than what Employer’s tests showed. Id. at 438.
Mercer also testified before the WCJ in a March 2022 hearing. C.R. at
236. He stated that he was never diagnosed with a learning disability and never had
trouble learning. Id. at 242-46. He had to repeat two grades in high school because
he preferred to hang out with friends and did not attend classes. Id. at 244 & 266.
He did not get knocked out or sustain any head injuries when he did martial arts or
other sports like basketball. Id. at 246-47 & 260-62. His medications keep him from
getting headaches and irritability. Id. at 248 & 252. He felt like “a big part of my
body just been tampered with.” Id. at 253. He was no longer seeing a counselor.
Id. at 268. He still did occasional electrical jobs, just basic tasks like replacing light
fixtures and switches. Id. at 277. When asked “what symptoms do you have which
you relate to your exposure at work,” he responded: “I don’t have nothing that relates
to my exposure at work. That’s done.” Id. at 249.
Dr. Andrew Newberg, M.D., testified for Mercer in a June 2021
deposition. C.R. at 461. He is board certified in internal medicine and nuclear
medicine, which is a subspecialty of radiology involving positron emission
tomography (PET) scans. Id. at 462-63. PET scans are a developing technology
that produce images of brain function, metabolic activity, and patterns relevant to
neurological and psychiatric conditions such as concussions, Alzheimer’s disease,
dementia, brain tumors, seizures, and depression and anxiety. Id. at 485-90. PET
scanning originated in the mid-1970s, and Dr. Newberg does not view it as novel;
there is an extensive body of research on it and guidelines for its use have been
developed. Id. at 488-89. The results are subject to qualitative interpretation, but
also have an objective component. Id. at 491 & 494. Dr. Newberg’s practice is

4
academic, research-oriented, and clinical; about 10%-15% of his patients present
with past exposure to toxic substances, including lead. Id. at 464-65 & 470.
Dr. Newberg first saw Mercer through a referral from Mercer’s counsel.
C.R. at 480-81. He reviewed Mercer’s test results, which showed “measurable
levels” indicating exposure to lead. Id. at 483. In April 2019, he conducted a PET
scan on Mercer, which showed 14 brain areas with abnormal activity. Id. at 496-99
& 509. This was consistent with Mercer’s description of the issues he developed
after working for Employer, such as problems with concentration, tension,
irritability, balance, and memory. Id. at 501-04 & 526-27. Dr. Newberg observed
that Mercer’s results showed “a brain that seems to be in an over-excited state”; areas
of his brain that should “shut off” when not in use failed to do so, then those areas
would “burn out” and under-function. Id. at 505 & 508 & 510-11.
Using a process of elimination, known as a differential diagnosis, Dr.
Newberg concluded that Mercer’s PET scan abnormalities and symptoms resulted
from the “chronic” and “long-term” lead exposure he sustained while working for
Employer. C.R. at 505-06 & 514. None of Mercer’s tests while working for
Employer exceeded the recognized limits for acute lead exposure, but low-level
chronic exposure can cause Mercer’s scan results. Id. at 520-23. Removal from the
lead source would not necessarily decrease the lead in Mercer’s brain and body; the
effects and symptoms may be chronic and ongoing. Id. at 541. These impacts would
not be visible on a traditional magnetic resonance image (MRI), which takes
structural images compared with a PET scan, which is dynamic. Id. at 524. He
acknowledged that PET scan results cannot detect when the abnormalities in a
person’s brain occurred. Id. at 552.

5
Dr. Newberg could not reasonably attribute the findings to any other
cause, including Mercer’s age or past drug, alcohol, and tobacco use, as those would
not cause the specific findings in his PET scan nor would other conditions like
Parkinson’s disease or Alzheimer’s disease. C.R. at 533 & 538. Mercer did not
report prior head injuries that could be responsible. Id. at 545. Dr. Newberg stated
that assigning chronic lead exposure as the cause of Mercer’s PET scan results and
reported symptoms was consistent with neuropsychological literature on the subject.
Id. at 532. He acknowledged, however, that there is little literature at this time on
the use of PET scans to diagnose lead exposure or poisoning. Id. at 551. He added
that although Mercer’s MRI did not show recognized markers for lead poisoning,
those markers are usually associated with acute and high-level exposure rather than
lower-level chronic exposure. Id. at 535-36.
Dr. Idit Trope, Ph.D., testified for Mercer in a June 2021 deposition.
C.R. at 732. She is a licensed clinical psychologist with a specialty in
neuropsychology, which is the study of the relationship between the brain and
behavior. Id. at 734. She maintains an academic position and a clinical practice
conducting neuropsychological assessments. Id. at 734-37. She has evaluated many
individuals with lead toxicity and has conducted research on the effects of lead on
the brain’s metabolic functions. Id. at 737. She first saw Mercer in March 2021. Id.
at 744. Mercer reported trust issues arising from what happened to him while
working for Employer because it did not give him protective equipment and then let
him go; he also reported anxiety, depression, and past issues arising from his parents’
separation when he was young, which affected his school performance. Id. at 745
& 749. He reported his past drug and alcohol use. Id. at 746.

6
Dr. Trope did not detect Mercer lying or failing to give a valid effort,
and he passed the measures built into the test to detect these behaviors. C.R. at 751
& 756-57. Mercer’s results showed intellectual ability on the low end of the low
average range. Id. at 752. His issues included task monitoring, inhibitory control,
attention, memory, learning, slow cognitive processing, and problem solving. Id.
Dr. Trope did not detect or diagnose attention deficit hyperactivity disorder (ADHD)
or a learning disability. Id. at 755 & 780.
Dr. Trope concluded that Mercer’s issues were consistent with chronic
low-level lead exposure in an adult. C.R. at 757 & 764. Dr. Trope reviewed Dr.
Newberg’s report and agreed that the abnormalities on Mercer’s PET scan would
lead to memory deficits. Id. at 759. She stated that using PET scans to diagnose
psychiatric issues is well known and widely used because it can detect abnormalities
that would not show up on an MRI. Id. at 759-60. Dr. Trope’s ultimate diagnosis
was that lead exposure while working for Employer caused Mercer to sustain a
neurocognitive disorder. Id. at 761-64. She noted that her results were consistent
with a September 2019 neuropsychological evaluation conducted on Mercer but
acknowledged that the prior evaluation concluded that the cause of Mercer’s current
issues could not be determined with certainty. Id. at 763-64 & 780-81.
Dr. Trope maintained that Mercer’s lead exposure while working for
Employer was the “most significant” source of his issues rather than his long-ago
drug use, given that he was able to function and hold jobs before working for
Employer, but not afterwards. C.R. at 765-66. She did not detect signs of age-
related degeneration, dementia or Alzheimer’s disease. Id. at 774. Mercer did not
report any head injuries. Id. at 775. She did not believe that Mercer’s current
symptoms were a reaction to losing his job with Employer. Id. at 767.

7
Dr. Trope stated that Mercer cannot return to work entailing lead
exposure, which would worsen his condition; his attention, learning, and memory
functions had been affected, which would hinder his ability to learn new skills. C.R.
at 766-67. His trust and social issues, which were indirectly due to the exposure,
would make it difficult for him to relate to new people at a different job, which was
part of why he was unable to keep the two restaurant jobs he held briefly after being
let go by Employer. Id. at 771 & 785.
Dr. Burton Weiss, M.D., testified for Mercer in a June 2021 deposition.
C.R. at 850. He is board certified in psychiatry with a specialty in neuropsychiatry,
which pertains to the behavioral and emotional consequences of brain injuries and
diseases. Id. at 851. He maintains a clinical practice and has treated several adult
patients with lead poisoning. Id. at 853-54. He evaluated Mercer in March 2021.
Id. Mercer presented with headaches, anxiety, depression, short-term memory
problems, and facial pain. Id. at 856 & 860. Mercer felt betrayed by Employer
because it had not sufficiently protected him from lead exposure. Id. at 856-57. He
reported that his only mental health issues were from his parents’ separation when
he was young, which led to difficulty in school. Id. at 857. Dr. Weiss did not detect
a learning disability. Id. at 859.
Dr. Weiss diagnosed Mercer with permanent neurocognitive disorders
caused by lead exposure and with adjustment disorder caused by the cognitive
impairments. C.R. at 865. Dr. Weiss concluded that lead exposure was the most
likely source of Mercer’s current condition and that other sources could be
eliminated. Id. at 861-64. Mercer’s diffuse pattern of neurocognitive deficits is
usually associated with head trauma, he reported no head injuries, and they were not
indicated in the medical records; nor did he have a degenerative neurological

8
condition like Alzheimer’s disease or Huntington’s disease. Id. at 866. Mercer’s
condition was too recent and acute to be due to his past drug use, drinking, smoking,
or aging. Id. at 866-67. Dr. Weiss also attributed Mercer’s condition to lead
exposure because he reported no functional, mental, or emotional issues before
working for Employer. Id. at 869-70. Dr. Weiss did not believe Mercer would be
able to work again. Id. at 868. He could not be subject to further lead exposure,
would be unable to learn and retain new skills, and would tire too quickly to do
manual labor. Id. at 868.
On cross-examination, Dr. Weiss acknowledged that he had not seen
medical records prior to 2015, so he could only rely on Mercer’s self-reported
condition before working for Employer. C.R. at 872 & 879. He believed that
Mercer’s ability to do some restaurant and electrical work after his exposure was
because he had done that kind of work before and did not need to learn new skills
for it. Id. at 873. He did not believe Mercer could do those jobs on a full-time basis
without significant built-in structure and accommodations. Id. at 875. He
acknowledged that the Philadelphia school system may not have excelled at
diagnosing and accommodating learning disabilities in the 1970s, but believed
Mercer’s report that his difficulties in school were due to his parents’ separation. Id.
at 881-82.
Maria Babinetz, M.S., testified for Claimant in a June 2021 deposition.
C.R. at 983. She is a licensed professional counselor and a certified vocational
expert. Id. at 988. She conducted an earning capacity evaluation on Mercer in early
2021. Id. at 994-95 & 1007-11. Mercer told her that before the lead exposure, he
enjoyed playing musical instruments and had a black belt in martial arts, but he could
no longer consistently enjoy these activities due to his physical and cognitive decline

9
since the exposure. Id. at 995. Babinetz specifically remarked on Mercer’s intense
current sense of uncertainty and loss of his previous social and functional wellbeing.
Id. at 1001.
Babinetz concluded that Mercer read at a 4th grade level, spelled at a
3rd grade level, could do math at a 4th grade level, and had comprehension ability
at a 4th grade level. Id. at 1011. He scored below average in tests for mechanical
reasoning, spatial relations, verbal reasoning, and manual speed and dexterity. Id.
at 1011-12. He was not employable in any capacity, whether skilled or unskilled,
and his occupational ability “has been entirely and utterly eroded” since he worked
for Employer. C.R. at 1015. Babinetz acknowledged a “congruency” between her
conclusions and those of Drs. Newberg, Trope, and Weiss that Mercer’s condition
reflected a recent onset neurological condition arising since he began working for
Employer in 2015, most likely due to the lead exposure. Id. at 1022-25.
On cross-examination, Babinetz acknowledged that Mercer had been
able to get himself from Philadelphia to Fort Washington for their appointments
without difficulty and that this showed a certain level of cognitive functionality.
C.R. at 1026. She acknowledged that all medical records, tests, and reports she
reviewed post-dated 2017, after Mercer was let go by Employer. Id. at 1031. She
acknowledged Mercer’s recent electrical work but noted that it was limited to basic
tasks on an elective basis as opposed to holding a job, which requires showing up on
time every day and doing what is asked or needed all day, which she did not feel was
within Mercer’s current ability. Id. at 1034-37.
Employer first presented a fact witness, Tony Cosia, who testified in a
March 24, 2021, deposition. C.R. at 1190. He is Employer’s safety manager and
has done that job for ten years. Id. at 1196. He acknowledged that lead is involved

10
in Employer’s work of manufacturing commercial radiators. Id. at 1197. When
workers begin employment, they watch videos and receive handouts describing the
dangers of lead exposure and the need for precautions. Id. at 1198, 1212-13.
Mercer’s workspace had exhaust fans and a ventilation system. Id. at 1200 & 1225.
Employer provides uniforms, which are left at the workplace each day and sent out
for cleaning, steel-tipped rubberized boots that are also left at the workplace after
shifts, and hand and eye protection. Id. at 1201-02.
Cosia testified that Employer’s workers are tested for lead every six
months. C.R. at 1202-03. He would give employees their documents and get their
signature for receipt. Id. at 1204-05. Mercer’s first test in October 2015 showed a
lead level of 31 and a zinc level of 95. In April 2016, he had a lead level of 34 and
a zinc level of 135. C.R. at 1219. In November 2016, he had a lead level of 35 and
a zinc level of 216. In May 2017, he had a lead level of 33 and a zinc level of 164.
Id. Cosia acknowledged that after the April 2016 test, Employer’s occupational
health doctor recommended a follow-up test in May 2016 and that after Mercer’s
November 2016 test, the occupational health doctor recommended further testing
and removal from the workspace. Id. at 1222-23. Mercer was told to follow up with
his own doctor or occupational health, then report back to Employer. Id. at 1224.
This was because Employer’s level for removal and further testing based on lead
exposure was 40, 10 points below the level of 50 set by the Occupational Safety and
Health Administration (OSHA), neither of which Mercer’s results ever reached. Id.
at 1233. Mercer was laid off in September 2017 along with his work partner due to
an industry slowdown and not because Mercer had high test results. Id. at 1207-08.
Cosia acknowledged that Mercer was issued N-95 masks, but not an air purifying
respirator with filter cartridges specifically for lead. Id. at 1227-28. This was

11
because Employer’s lead levels are below the minimum point at which OSHA
requires such equipment. Id. at 1228.
Employer next presented Dr. Michael Silverman, M.D., who testified
in a September 2021 deposition. C.R. at 1252. He is board certified in internal
medicine and infectious diseases. Id. at 1259. He maintains a general clinical
practice that includes some patients with common psychological conditions like
anxiety and depression and individuals with illnesses from toxic exposure. Id. at
1260-61. He reviewed Mercer’s medical records and examined him in February
2021. Id. at 1262-63. Dr. Silverman noted that while Mercer’s test results indicated
lead exposure, the levels were not high enough to exceed OSHA’s minimum of 50.
Id. at 1266-67. He agreed, however, that no level of lead in the body is good. Id. at
1279. Mercer told him that none of his co-workers had issues or concerns with high
lead levels at work. Id. at 1282-83.
Dr. Silverman’s physical examination of Mercer was generally normal.
Id. at 1269-70. Mercer reported that medication was helping with most of his
symptoms and that he “basically felt like he was generally in good health at the
present time.” Id. at 1271. Dr. Silverman acknowledged that his evaluation of
Mercer’s mental state was largely based on observing him during their encounter;
he agreed that a neuropsychological assessment would be more attuned to the details
of Mercer’s cognitive status and the impact of lead exposure on his brain. Id. at
1296-1300. However, given Mercer’s learning difficulties in school, a preexisting
undiagnosed congenital brain condition could not be ruled out as the cause of his
current issues. Id. at 1301-04. At the least, Mercer appeared to have cognitive
deficits prior to working for Employer that could call into doubt whether lead
exposure was the definitive cause of his current issues. Id. at 1310.

12
Dr. Silverman opined that Mercer was physically capable of resuming
work without restrictions and had agreed during the evaluation that he was able to
do so. C.R. at 1273-74. Dr. Silverman would not necessarily return Mercer to a job
specifically involving potential lead use or exposure because of the clear anxiety
Mercer now has in that regard, and because the improvements Mercer has made in
that area with medication and counseling would probably be compromised or erased.
Id. at 1311-12. However, as a purely physical matter, Dr. Silverman did not have a
problem with returning Mercer to work for Employer because his levels were never
over Employer’s limit or OSHA’s limit. Id. at 1286-87 & 1291.
Employer next presented Dr. Nancy Minniti, Psy.D., who testified in a
September 20, 2021, deposition. C.R. at 1351. She has a doctorate in clinical
psychology and works in the neurology department at Temple University Hospital
as a neuropsychologist, seeing patients with cognitive deficits. Id. at 1356. She
reviewed Mercer’s records and the other experts’ reports and evaluated him in July
2021. Id. at 1360. She considered his early academic difficulties and noted that
learning issues at a young age, if undiagnosed and unaddressed, can persist into
adulthood and reflect as cognitive deficits. Id. at 1363. In that posture, the cognitive
issues would always have been there and would not be signs of decline due to an
exterior cause. Id.
Dr. Minniti pointed out that Babinetz had not addressed the possibility
that Mercer had an undiagnosed learning disability. C.R. at 1366. Dr. Minniti next
noted that Dr. Trope had not taken her own clinical history from Mercer but had
relied mostly on records to collect his background information; this likely hindered
Dr. Trope’s conclusions, which Dr. Minniti also believed wrongly downplayed the
possibility of a longstanding undiagnosed learning disability. Id. at 1367-68 & 1380-

13
81. According to Dr. Minniti, many of the testing techniques Dr. Trope used would
have posed difficulties for someone with an undiagnosed learning disability, but it
would seem as though the results were due to an exterior cause. Id. at 1369-70. Dr.
Minniti found Mercer’s reported difficulties and the fact that he had to repeat grades
in school significant for a potentially undiagnosed learning disability. Id. at 1373.
Mercer told her that he stopped doing martial arts about 20 years ago because he
worried about head injuries and “did not want to end up like Muhammad Ali.” Id.
at 1372. However, Mercer did not report that he sustained any head injuries from
martial arts, so Dr. Minniti did not view that, or his past drug use, as more than a
potential contributor to his present cognitive status. Id. at 1394-95.
Dr. Minniti ultimately concluded that an undiagnosed learning
disability was “very likely” the reason for Mercer’s cognitive deficits. Id. at 1378
& 1382-83. Due to Mercer’s age (60 years old), his school records may no longer
exist, but his poor reading skills are more likely a lifelong issue caused by a learning
disability. Id. at 1379. She was not aware of any studies or research tying lead
exposure to reading issues. Id. at 1405. Moreover, in the 1970s, services for
assessing and addressing learning disabilities “just weren’t in place. . . . These things
were likely not available in the Philadelphia school system when he went through.”
Id. at 1382. Mercer’s need for tutoring in third grade stood out to Dr. Minniti as an
indication of early learning issues. Id. She saw lead exposure as a less likely cause
because Mercer did not have corresponding problems with daily functions like
managing his household and finances, driving a vehicle, and keeping his doctors’
appointments. Id. at 1384-85. She believed he could be employable in more or less
the same capacity as before. Id. at 1384.

14
On cross-examination, Dr. Minniti acknowledged that Mercer did
ultimately graduate high school, pass electricians’ classes, and had not reported
cognitive issues before working for Employer. C.R. at 1392-93. She attributed his
decision to seek counseling after being let go by Employer to losing his job and
having difficulty finding another. Id. at 1396. She agreed with Dr. Newberg that
PET scans are scientifically acceptable to test brain metabolism as part of a
diagnostic process but did not agree that they are suitable to provide a definitive
diagnosis on their own or pinpoint the specific cause of an abnormality. Id. at 1400-
03, 1406-07 & 1420. She questioned whether lead exposure, which is progressive,
would have produced Mercer’s deficits so soon after he stopped working for
Employer. Id. at 1416-18. Mercer’s ability to hold down various jobs throughout
his life was not inconsistent with a learning disability; people with similar disabilities
tend to go into “hands-on” vocations as Mercer has generally done. Id. at 1411-12.
She did accept that returning to a job involving lead exposure might not be
recommended for Mercer. Id. at 1419.
Employer next presented John Kashani, D.O., in an August 2021
deposition. C.R. at 1482. He is board certified in emergency medicine, toxicology,
addiction medicine, and anti-aging and regenerative medicine. Id. at 1489. He
maintains a clinical practice at the New Jersey State Poison Center. Id. at 1490. He
has treated many adult patients with lead toxicity and lectured nationally on the
subject. Id. at 1491-92. He did not personally examine Mercer but reviewed his
medical records. Id. at 1493.
Dr. Kashani first explained that testing for zinc is relevant to lead
toxicity because the two usually correspond: “If the zinc protoporphyrin is elevated,
then it implies that there was an exposure.” C.R. at 1500-01. Mercer’s zinc and lead

15
tests reflected exposure, but his medical records did not exceed the recognized levels
for toxicity or indicate other generally associated conditions, such as hypertension,
neuropathy, anemia, and abdominal pain. C.R. at 1500-03. Dr. Kashani disagreed
with Dr. Newberg on using PET scans to diagnose lead toxicity, explaining that they
are suited to diagnosing seizure disorders, degenerative brain diseases, and
myocardial conditions. Id. at 1504-05. Specifically, Dr. Kashani did not believe
that Mercer’s PET scan results could be directly attributed to his work-related lead
exposure. Id. at 1506. The lead levels for two years of tests taken while Mercer
worked for Employer simply were not high enough or of long enough duration to
cause his current condition. Id. at 1509-10.
On cross-examination, Dr. Kashani acknowledged that a respirator
mask with lead filtering cartridges would be recommended for workers exposed to
lead in circumstances like those at Employer’s facility. C.R. at 1532. If Employer’s
workers ate lunch while wearing their work clothes, oral ingestion of lead particles
could occur. Id. at 1534. Smoking alone would not cause lead levels higher than 3-
4. Id. at 1538. Lead exposure can result in cognitive declines. Id. at 1563. However,
no studies have concluded there is any direct correlation between lead toxicity and
PET scan results similar to Mercer’s; although Mercer was exposed to lead while
working for Employer, he showed none of the physical conditions generally
associated with lead toxicity, and in Dr. Kashani’s view, to make that connection
“when there are absolutely no other manifestations is just not a leap of faith that I
can agree with.” Id. at 1571-72 & 1578-80.
Employer next presented the June 2022 deposition of Dr. Daniel
Feinberg, M.D. C.R. at 1737. He is a neurologist and maintains an academic
position and a clinical practice; he works with neuropsychologists on many of his

16
cases. C.R. at 1741 & 1757. He reviewed Mercer’s records and examined him in
February 2022. Id. at 1744. Dr. Feinberg evaluated Mercer’s face and head nerves,
motor functioning, reflexes, sensation, coordination, and walking, all of which were
normal. Id. at 1748-49. He did not detect any speech or memory issues. Id. at 1749.
Lead toxicity patients have symptoms resembling Parkinson’s disease, such as
overactive reflexes, and Mercer had none of them. Id. Dr. Feinberg is familiar with
PET scans and described them as most commonly used in neurology for research
than as a diagnostic tool compared with an MRI. Id. at 1751-52 & 1785. There is
no one clinical criterion for diagnosing a brain injury from lead exposure because
the symptoms vary, but MRI results such as abnormal signal and demyelination in
the basal ganglia, the caudate nuclei, the lentiform nuclei, and the thalamus, are fairly
consistent in lead toxicity, and Mercer’s April 2019 MRI had no such abnormalities.
Id. 1752-53 & 1802. Dr. Feinberg did not believe, given his examination and review
of Mercer’s normal MRI, that Mercer sustained any cognitive or psychiatric
conditions from his exposure to lead. Id. at 1754-55.
On cross-examination, Dr. Feinberg acknowledged that he did not have
specific OSHA training. C.R. at 1758. Mercer’s tests reflected lead exposure, but
his normal MRI and lack of any recognized lead toxicity symptoms led Dr. Feinberg
to conclude that lead exposure did not lead to any brain damage. Id. at 1769. Mercer
reported headaches, but Dr. Feinberg did not conclude that they were due to a serious
brain injury. Id. at 1775. With regard to Mercer’s MRI, Dr. Feinberg stated: “I
know, as a neurologist, what chronic lead intoxication does to the brain. And those
areas were normal.” Id. at 1780. He added: “[T]o me, it’s impossible that chronic
lead toxicity, even at a low level to be present, that would cause those symptoms
with that MRI scan. Those two are completely incompatible.” Id. at 1781. For lead

17
exposure to result in the symptoms Mercer reported, his MRI would be abnormal,
and it was normal. Id. at 1782.
The WCJ issued a decision and order on January 26, 2023, denying
Mercer’s claim petition. C.R. at 26-50. On October 18, 2023, the Board issued a
decision and order affirming the WCJ’s order.3 Mercer timely appealed to this
Court.
II. Issues
Mercer presents seven issues in this appeal.4 First, he asserts that the
WCJ capriciously disregarded relevant and competent evidence. Next, he argues
that the WCJ failed to issue a reasoned decision. He also avers that the WCJ’s
findings and conclusions were not supported by substantial record evidence. He
claims that the WCJ wrongly failed to apply the occupational disease rebuttable
presumption. He challenges the WCJ’s rejection of testimony by Employer’s
experts that Mercer should not be returned to work for Employer due to the danger
of further lead exposure. He argues that his evidence established, at the least, a claim
for medical monitoring and that the WCJ erred in denying that claim. Last, he avers
that because his claim petition should have been granted, the WCJ should have
awarded his litigation costs.

Employer cross-appealed the admissibility of Dr. Newberg’s testimony as scientifically
3

unsound. C.R. at 155. The Board did not address that claim because it affirmed the WCJ’s denial
of Mercer’s claim petition. Id. at 212.

“This Court’s review in workers’ compensation appeals is limited to determining whether
4

necessary findings of fact are supported by substantial evidence, whether an error of law was
committed, or whether constitutional rights were violated.” DiPaolo v. UPMC Magee Women's
Hosp. (Workers’ Comp. Appeal Bd.), 278 A.3d 430, 433 n.5 (Pa. Cmwlth. 2022), appeal denied,
290 A.3d 237 (Pa. 2023).

18
A. WCJ’s Credibility Determinations: Capricious Disregard
Capricious disregard occurs when the factfinder deliberately ignores
relevant, competent, and “apparently trustworthy” evidence. Williams v. Workers’
Comp. Appeal Bd. (USX Corp.-Fairless Works), 862 A.2d 137, 144 (Pa. Cmwlth.
2004). Our Supreme Court has held that the standard “is not to be applied in such a
manner as would intrude upon the agency’s fact-finding role and discretionary
decision-making authority.” Leon E. Wintermyer, Inc. v. Workers’ Comp. Appeal
Bd. (Marlowe), 812 A.2d 478, 487-88 (Pa. 2002). The WCJ, as the ultimate
factfinder in workers’ compensation cases, has exclusive province over questions of
credibility and evidentiary weight, and is free to accept or reject the testimony of any
witness, including a medical witness, in whole or in part. Williams, 862 A.2d at 143.
The WCJ may reject even a witness’s uncontradicted testimony. Id. at 144.
Mercer asserts that the WCJ capriciously disregarded evidence
establishing that before September 2017, when Employer laid him off, he had an
active and productive life. Mercer’s Br. at 15-19. Mercer avers that this evidence
supports his claim that the lead exposure he sustained while working for Employer
caused his current condition of decreased physical and cognitive ability, which in
turn renders him unable to work in any capacity. Id. Mercer points to uncontradicted
evidence that before working for Employer, he had completed coursework to be a
nursing assistant and an electrician, was active as a musician and in martial arts, had
never been diagnosed with a learning disability, and that his school issues were due
at first to his parents’ separation and later to attendance issues rather than difficulty
learning. Id. In particular, Mercer finds no basis for the WCJ’s rejection of the
testimony of Babinetz, the only vocational expert who testified in this matter. Id.
Employer responds that the WCJ simply did not accept Babinetz’s testimony, which

19
was well within the WCJ’s discretion as the sole arbiter of witness credibility.
Employer’s Br. at 18-19.
Babinetz testified that Mercer told her that he was active as a musician
and in martial arts before working for Employer but that since then, he was no longer
able to enjoy those hobbies and activities due to his cognitive and physical decline.
C.R. at 995. After conducting vocational testing and reviewing the reports of Drs.
Newberg, Trope, and Weiss, Babinetz agreed with them that lead exposure was the
cause of Mercer’s current inability to work. Id. at 1022-25. She acknowledged,
however, that she had seen no records or medical evidence predating Mercer’s time
working for Employer. Id. at 1031.
The WCJ rejected Babinetz’s testimony on the basis that the “sole
source” of Mercer’s assertions that he had an active and productive lifestyle and no
cognitive issues before working for Employer and that he was physically and
mentally unable to work afterwards was his own assertions. C.R. at 47.
Significantly, the WCJ also rejected Mercer’s testimony after observing him at the
final hearing in March 2022 and reviewing his previous deposition as well as his
recounting of his history to all of the expert witnesses. Id. at 46-47. Specifically,
the WCJ pointed out that Mercer did not report any symptoms or seek medical care
while still working for Employer; he only reported symptoms after being let go. Id.
at 47. He did not stop working because he was physically and mentally unable to do
so, but because he was laid off. Id. He read and signed the test results he received
from Employer, including the note from Employer’s occupational health doctor that
he should be removed from lead exposure, but he never questioned them or sought
medical attention. Id. He was able to apply on his own for unemployment benefits
after Employer laid him off. Id. Despite his assertions of cognitive issues rendering

20
him unable to work, he could manage his life on his own without assistance. Id.
Last, the WCJ noted Mercer’s statement at the final hearing that “I don’t have
nothing that relates to my exposure at work. That’s done.” Id.
The WCJ explained that her rejection of Mercer’s testimony and, by
extension, that of Babinetz and Mercer’s other experts who relied on his self-
reported history, was based on the above-listed discrepancies. C.R. at 47. Mercer
was exposed to lead while working for Employer and clearly believed (WCJ’s
emphasis) that his current issues were due to that exposure, but his evidence failed
to establish lead toxicity or that his current asserted deficiencies were due to his prior
exposure. Id.
Analysis and weighing of evidence is the essence of the factfinder’s
role in workers’ compensation matters and the WCJ may reject the testimony of any
witness, including the claimant or an expert, even if the testimony is uncontradicted.
Williams, 862 A.2d at 144. To meet the capricious disregard standard, that evidence
must be competent and at least “apparently trustworthy.” Id. Mercer’s assertion of
his previous abilities was generally consistent and uncontradicted, but it was also
unsupported by any other evidence, and the WCJ did not find it trustworthy for the
multiple reasons set forth above. We cannot say that this amounted to capricious
disregard of that evidence such that this case presents an instance where we may
“intrude upon the agency’s fact-finding role and discretionary decision-making
authority. Wintermyer, 812 A.2d at 487-88. Accordingly, the WCJ did not
capriciously disregard dispositive evidence of record and the Board did not err in
affirming the WCJ in this regard.

21
B. Reasoned Decision
Section 422(a) of the Workers’ Compensation Act (Act), 77 P.S. § 834,5
provides that the parties 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.” Daniels v. Workers’ Comp. Appeal
Bd. (Tristate Transport), 828 A.2d 1043, 1047 (Pa. 2003). The statute also requires
the WCJ to specify the evidence upon which he or she is relying, and to state the
reasons for accepting that evidence. Id. In 1996, the General Assembly amended
Section 422(a) to further elucidate the requirement for a reasoned decision, by
adding the following two sentences:
When faced with conflicting evidence, the [WCJ] 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
[WCJ] must identify that evidence and explain adequately
the reasons for its rejection.

77 P.S. § 834. Section 422(a) concludes by noting that the WCJ’s adjudication shall
“provide the basis for meaningful appellate review.” Id. Where there is conflicting
evidence taken by depositions rather than before the WCJ in person, the WCJ must
clearly explain the reasons for crediting one witness over another, such as
qualifications, misplaced assumptions, or contradictions in testimony. Daniels, 828
A.2d at 1053.
“The requirement that the WCJ adequately explain his reasons for
accepting or rejecting evidence protects the parties to a decision by ensuring that a
legally erroneous basis for a finding will not lie undiscovered.” Lawry v. Cnty. of

5
Act of June 2, 1915, P.L. 736, as amended.

22
Butler (Workers’ Comp. Appeal Bd.), 310 A.3d 1286, 1289 (Pa. Cmwlth. 2024)
(quoting PEC Contracting Eng’rs v. Workers’ Comp. Appeal Bd. (Hutchison), 717
A.2d 1086 (Pa. Cmwlth. 1998)). “For instance, if a WCJ rejects evidence based on
an erroneous conclusion that testimony is equivocal, or that the evidence is hearsay
or for some other reason incompetent, such legal error will be evident and can be
corrected on appeal.” Id. at 1289-90. However, the WCJ’s prerogative to determine
the credibility of witnesses and the weight to be accorded evidence “has not been
diminished” by the amendments to Section 422(a) of the Act. Id. at 1290. This
Court has explained:
While many petitioners challenging an adverse credibility
determination would suggest that we review each and
every component of the WCJ’s reasoning for substantial
evidence and reverse or remand if we can find any flaw,
we do not believe the reasoned decision requirement takes
us so far from the traditional notions of the deference owed
credibility determinations.

Id.
Mercer argues that no evidence of record, even that given by
Employer’s experts, supported the WCJ’s apparent conclusion that symptoms of
lead toxicity would have manifested while he worked for Employer. Mercer’s Br.
at 20-22. Therefore, the WCJ’s reliance on his failure to report symptoms, seek
medical care, or stop working as reasons to find him non-credible amounted to an
unsupported “substitution of her own medical judgment” for that of any experts in
this case. Id. According to Mercer, this renders the WCJ’s decision insufficiently
reasoned. Id. Similarly, Mercer asserts that his failure to follow up when
Employer’s occupational health doctor wrote on the October 2016 test result that he
should be removed from work due to his zinc levels should not have been taken by
the WCJ as a negative mark on his credibility because it was Employer’s duty to

23
protect him, and he trusted Employer’s judgment. This, according to Mercer, is
another basis upon which the WCJ’s decision is unreasoned, of which he lists several
others. Id. at 23-27. Employer responds that Mercer’s attacks on the WCJ’s
credibility determination regarding his testimony does not establish that her decision
failed to provide sufficient reasons for her findings and conclusions. Employer’s Br.
at 19-22.
Mercer also challenges the WCJ’s crediting of Employer’s medical
experts, asserting specifically that Dr. Kashani’s testimony wrongly focused on
acute levels of lead exposure even though he acknowledged that lower and chronic
levels can also lead to lead toxicity. Mercer’s Br. at 27. Mercer also notes that Dr.
Kashani acknowledged that an abnormal MRI is not always a prerequisite for lead
toxicity, while Dr. Feinberg stated that an abnormal MRI was always necessary for
the diagnosis. Id. at 28. Mercer also emphasizes that none of Employer’s experts
could state definitively how long it takes for symptoms to manifest or for
abnormalities to reflect on an MRI or whether there is a definitive exposure level
below which no toxicity would occur, although they generally agreed that no level
of lead in the body is “good.” Id. at 28-29. Mercer similarly points to other areas of
Employer’s experts’ testimony that he posits were deficient compared with that of
his own experts and maintains that the WCJ’s faulty credit determinations rendered
her decision insufficiently reasoned. Id. at 30-35. Employer responds that Mercer’s
attacks on the WCJ’s credibility determination regarding the experts’ testimony fails
to establish that her decision failed to provide sufficient reasons for her findings and
conclusions. Employer’s Br. at 22-26.
Regarding Mercer’s testimony, the WCJ summarized both his initial
deposition and his in-person hearing testimony in detail. C.R. at 29-31. As noted,

24
the WCJ explained that while Mercer clearly believed that the lead exposure was the
cause of his current condition, his testimony on the whole did not provide a sufficient
basis to conclude that the exposure had actually caused his symptoms or rendered
him unable to work. Id. at 47. Although Mercer’s lack of symptoms while working
for Employer did not necessarily mean that he did not have lead toxicity, as a matter
of credibility, it was within the WCJ’s discretion to observe Mercer’s apparent lack
of contemporary concern, even when shown a note that Employer’s occupational
clinic doctor thought his zinc levels were high enough to warrant further testing and
removal from workplace lead exposure.6 Id. Likewise, it was within the WCJ’s
purview to note that by Mercer’s own reporting, his symptoms did not manifest until
after he was laid off for economic reasons and that despite his asserted inability to
work, he was able to care for himself and manage his life with relatively little
cognitive, physical, or functional difficulty. Id.
Regarding the medical experts’ testimony, the WCJ summarized their
depositions in detail. C.R. at 33-46. In crediting Employer’s experts, the WCJ listed
multiple bases, including Dr. Kashani’s board certification and teaching and
lecturing credentials in toxicology, his OSHA training in lead toxicity, and his
explanation between lead exposure and lead toxicity; Mercer’s lack of the
recognized symptoms of lead toxicity; the reason why a PET scan is not a definitive
tool for diagnosing lead toxicity; and why Mercer’s low level chronic exposure
would not be the reasonable cause of any cognitive or functional issues he reported.
Id. at 48. The WCJ pointed to Dr. Silverman’s agreement that the levels shown on
Mercer’s test results were insufficient to cause his reported symptoms, and that none
of Mercer’s test results exceeded Employer’s “safety level” of 40, which was

6
As explained by Dr. Kashani, zinc protoporphyrin levels in the blood correlate with lead
exposure and serve as a useful testing component. See C.R. at 1500-01.

25
significantly lower than the OSHA level of 50. Id. The WCJ also relied on Mercer’s
normal MRI and neurological examination. Id. The WCJ further noted Dr. Minniti’s
conclusion that an undiagnosed learning disability was likely the cause of his current
condition, a view shared by another neuropsychologist who evaluated Mercer in
September 2019 but was not called by Mercer to testify. Id. Conversely, the WCJ
stated: “None of [Mercer’s] experts adequately explained their opinions that
[Mercer’s] lead exposure with Employer even approached the level of ‘toxic,’ nor
did they adequately explain how [Mercer’s] lead exposure caused his alleged
symptoms.” Id. at 49.
Mercer strenuously challenges these credibility determinations by the
WCJ but has not established that they were insufficiently explained or based on
wholly erroneous or incompetent evidence. As this Court explained in Lawry, “we
do not believe the reasoned decision requirement takes us so far from the traditional
notions of the deference owed credibility determinations” as Mercer desires. See
310 A.3d at 1290. As the WCJ’s decision was sufficiently reasoned, the Board did
not err in affirming in this regard.

C. Substantial Evidence of Record
In a substantial evidence challenge, “it 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.”
Columbia Cnty. Comm’rs v. Rospendowski (Workers’ Comp. Appeal Bd.), 286 A.3d
436, 446 (Pa. Cmwlth. 2022). We review the entire record to determine if it contains
evidence a reasonable mind might find sufficient to support the WCJ’s findings and
if the record contains such evidence, the findings must be upheld even though the

26
record contains conflicting evidence. Id. This inquiry requires that we “view the
evidence in the light most favorable to the prevailing party and give [that party] the
benefit of all inferences reasonably deduced from the evidence.” Id.
Mercer poses his substantial evidence challenge in the same section of
his brief as his “reasoned decision” challenge regarding the WCJ’s determination
that his testimony was not credible and that Employer’s experts’ testimony was
credible. Mercer’s Br. at 19-35. The gist of his argument is that the WCJ’s reasons
for her determinations were nearly all fatally flawed and unsupported by,
respectively, the consistency of his own testimony and inconsistencies in
Employer’s experts’ testimony. Id. Employer responds that the WCJ’s
determinations were all properly supported by substantial record evidence.
Employer’s Br. at 18-26.
With regard to Mercer’s testimony, as discussed above, the WCJ stated
that while Mercer believed that his current condition was caused by lead exposure
while working for Employer, he had not established that his condition was disabling
or that his subjective belief regarding causation was sound. C.R. at 47. Although
he occasionally got nasal soreness and nosebleeds that he thought were from fumes
in the workplace, he generally did not feel unwell while working and did not report
those incidents to Employer. C.R. at 340. He applied for and accepted
unemployment benefits, receipt of which is conditioned on an assurance that the
claimant can work. Id. at 345. He filed a civil suit against Employer asserting that
he was let go due to his age rather than because of his lead exposure. Id. at 408. He
can care for himself personally and manage his medical appointments and bills. Id.
at 421-22. He received and signed his periodic test results, including the one with a
note from Employer’s occupational health doctor stating that his high zinc levels

27
warranted additional testing and recommending removal from the workplace, but
did not follow up with Employer or with occupational health. Id. at 431-33. When
asked at the final hearing in March 2022 “what symptoms do you have which you
relate to your exposure at work,” he responded: “I don’t have nothing that relates to
my exposure at work. That’s done.” Id. at 249.
Although Mercer also testified that he had no serious issues before
working for Employer and that he now feels physically, mentally, and emotionally
unable to work because of his prior lead exposure, “it 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.”
Columbia Cnty. Comm’rs, 286 A.3d at 446. The WCJ concluded that Mercer’s
testimony did not credibly support the extent of his claimed symptoms because he
did not report any issues at all until after he was let go by Employer, either for
economic reasons, for cause (given his testimony that he was told he “just didn’t
make out” on the job), or his age, based on his acknowledgement of the civil suit he
filed against Employer. C.R. at 47. The WCJ, having observed Mercer testify in
person, concluded that he bore resentment towards Employer and had anxiety
concerning his exposure to lead and believed that the exposure was the cause of his
current issues, but his testimony did not establish that he suffered from cognitive or
physical issues because of that exposure, either currently or ever. Id. at 47. This
conclusion was supported by Mercer’s stated ability throughout this litigation to care
for himself and manage his life on his own since the exposure and his statement at
the final hearing that he no longer had any symptoms that he related to the exposure.
Id. Even with the existence of contradictory evidence, a reasonable mind could
certainly find this sufficient to support the WCJ’s determination that Mercer’s

28
testimony was not credible to support his claims; therefore, that determination was
supported by substantial evidence of record.
With regard to the experts’ testimony, Dr. Silverman, an internist,
testified for Employer that none of Mercer’s test results exceeded OSHA’s
recommended level of 50 or even Employer’s internal level of 40. C.R. at 1266-67.
Mercer told him that none of his co-workers had issues or concerns with lead
exposure. Id. at 1282-83. Dr. Silverman stated that based on his review of records
and interview with Mercer, an undiagnosed learning disability could not be
definitively ruled out as the cause of his current cognitive issues. Id. at 1301-04. He
would not return Mercer to employment involving lead exposure but specified that
this was due to his observation of Mercer’s anxiety about exposure and concern that
the mental and emotional improvements Mercer has made would be compromised
or erased if he returned to a similar or same environment. Id. at 1311-12. In crediting
Dr. Silverman, the WCJ emphasized his testimony about the low lead levels in
Mercer’s test results and his normal physical and neurological findings in his
examinations of Mercer. Id. at 47.
Dr. Minniti, a neuropsychologist, testified that a learning disability,
based on Mercer’s need for tutoring in elementary school and need to repeat grades
in high school, more likely caused or at least contributed to Mercer’s current
cognitive deficiencies. C.R. at 1366-78. For example, Mercer’s reading scores are
particularly low and reading ability would not reasonably be affected by lead
exposure. Id. at 1379 & 1405. Although Mercer was never diagnosed with a
learning disability, Dr. Minniti explained that in the 1970s, school systems were
generally not yet equipped to detect such issues to the present extent. Id. at 1382.
She did not believe that chronic low-level lead exposure would lead to cognitive

29
deficiencies as quickly after the exposure as Mercer claimed, which was just after
he was let go by Employer in September 2017. Id. at 1416-18. Mercer had passed
coursework to be a nursing aide and electrician and had held various kinds of jobs
throughout his life before working for Employer, but this was not inconsistent with
Dr. Minniti’s theory because people with learning disabilities tend to go into “hands-
on” vocations like Mercer has generally done. Id. at 1411-12. The WCJ credited
Dr. Minniti’s learning disability theory as viable and noted that it was supported by
a neuropsychology report issued two years earlier by another doctor, whom Mercer
did not call to testify. Id. at 48.
Finally, Dr. Kashani testified for Employer. He noted that Mercer’s
test results were consistent with lead exposure but were not dispositive of lead
toxicity, particularly in the absence of the physical conditions associated with lead
toxicity, such as hypertension, neuropathy, anemia, and abdominal pain, none of
which Mercer has ever reported or been diagnosed with having. C.R. at 1500-02,
1571-72 & 1578-80. Dr. Kashani explained that the PET scan, upon which Dr.
Newberg relied, is not recognized as a definitive way to diagnose lead toxicity. Id.
at 1504-05. He agreed with Dr. Minniti that Mercer’s lead levels for two years of
tests taken while he worked for Employer simply were not high enough or of long
enough duration to cause his current condition. Id. at 1509-10. The WCJ
specifically emphasized Dr. Kashani’s credentials and experience and credited his
testimony that Mercer has never experienced the physical conditions associated with
lead toxicity and that the duration and levels of lead exposure Mercer sustained
would not be sufficient to cause the symptoms he related. Id. at 47.7

7
Although the WCJ did not explain her reasoning for crediting Dr. Feinberg’s testimony
and partly rejected Cosia’s testimony as Employer’s fact witness, there was substantial evidence
to support the WCJ’s decision even without that evidence. See C.R. at 47-48.

30
Although Employer’s experts testified to one degree or another that
lead toxicity can result in varied and even diffuse manifestations and that in the
absence of baseline lead testing before Mercer worked for Employer, it can be
difficult to diagnose or rule out definitively, we reiterate that “it 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.” Columbia Cnty. Comm’rs, 286 A.3d at 446. The WCJ concluded that the
testimony of Employer’s experts was more convincing than that of Mercer’s experts
and provided reasons based on references to their record testimonies. Even with the
existence of contradictory evidence, a reasonable mind could certainly find this
sufficient to support the WCJ’s determination that Employer’s experts’ testimonies
were credible and sufficient to refute the allegations in Mercer’s claim petition;
therefore, that determination was supported by substantial evidence of record.

D. Occupational Disease Rebuttable Presumption
Section 108 of the Act, added by Act of Oct. 17, 1972, P.L. 930,
specifically provides that lead poisoning or toxicity is a compensable occupational
disease. 77 P.S. § 27.1(a) (stating that the term “occupational disease,” as used in the
Act, includes “[p]oisoning by . . . lead . . . in any occupation involving direct contact
with, handling thereof, or exposure thereto”). Section 301(e) of the Act also
provides a rebuttable presumption in this context. 77 P.S. § 413 (stating that if a
claimant, “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 [claimant’s] occupational disease arose out of and in the course of
his employment, but this presumption shall not be conclusive”). Our Supreme Court

31
has explained that a claimant seeking to recover for an occupational disease “is given
a procedural or evidentiary advantage” over claimants who must definitively
establish both injury and causation. Pawlosky v. Workmen’s Comp. Appeal Bd.
(Latrobe Brewing Co.), 525 A.2d 1204, 1211 (Pa. 1987). “Once such a claimant
establishes that he has contracted an occupational disease and that the disease, at or
immediately before the date of disability, was a hazard in his occupation or industry,
he then becomes entitled to a non-conclusive presumption that his occupational
disease arose out of and in the course of his employment.” Id.
However, the claimant must first establish that he or she has actually
sustained and been disabled by the claimed occupational disease in order to be
eligible for the presumption. Rex v. Workers’ Comp. Appeal Bd. (City of Oil City),
879 A.2d 854, 862 (Pa. Cmwlth. 2005). If the question whether the claimant has
sustained an occupational disease is in dispute and the WCJ concludes that based on
the competent and relevant evidence of record, the preponderance of the evidence is
“to the negative,” then the presumption will not apply. Patton v. Workers’ Comp.
Appeal Bd. (Lane Enters., Inc.), 958 A.2d 1126, 1134 (Pa. Cmwlth. 2008) (relying
on Helverson v. Workmen’s Comp. Appeal Bd. (Central Foundry Co.), 463 A.2d
1243, 1246 (Pa. Cmwlth. 1983).
Mercer argues that the WCJ erred in declining to apply the presumption
on the basis that he did not establish that he actually sustained lead toxicity.
Mercer’s Br. at 37. He asserts that even if the WCJ did not conclude that he sustained
disability, the WCJ should have at least concluded that he sustained a work-related
injury because two of Employer’s experts stated that he should not be returned to
work in an environment posing risk of further lead exposure. Id. at 37-39 (citing
Jackson Twp. Volunteer Fire Co. v. Workers’ Comp. Appeal Bd. (Wallet), 594 A.2d

32
826 (Pa. Cmwlth. 1991) (Jackson Township)). Mercer posits that if the WCJ had
found that Mercer sustained an injury, regardless of whether he also established
disability, then the presumption should have been applied. Id. Employer responds
that Mercer proved neither that he had lead toxicity or that he was disabled due to it,
and his failure to meet his burden of proof rendered the presumption inapplicable.
Employer’s Br. at 27-29.
The WCJ acknowledged that lead toxicity is a recognized occupational
disease under the Act and that Mercer clearly sustained lead exposure while working
for Employer. C.R. at 49. However, the WCJ noted that the presumption is only
available if the claimant establishes both the existence of the disease and disability
resulting therefrom. Id. at 49 (citing Patton). To that point, the WCJ concluded:
“While [Mercer] argues that Employer has not provided an alternative explanation
for his alleged symptoms, it is not Employer’s burden to do so. It is [Mercer’s]
burden to prove that he has lead toxicity causing disability; here, [Mercer] has failed
to meet this burden.” Id.
In Patton, the claimant’s widow alleged that the claimant sustained
pneumoconiosis, chronic bronchitis, and chronic obstructive pulmonary disease as a
result of working for the employer as a welder for 13 years. 958 A.2d at 1127. Two
medical experts testified that workplace exposure caused the claimant’s conditions,
while the employer presented two medical experts who testified to the contrary. Id.
at 1133. The WCJ found the employer’s experts more credible and declined to apply
the presumption. Id. This Court concluded that the WCJ’s determination was based
on substantial record evidence and affirmed. Id. at 1134.
Similarly, in Helverson, the claimant alleged permanent disability from
silicosis due to 25 years working for the employer. 463 A.2d at 1243. The parties

33
presented competing medical experts on causation, and the WCJ, concluding that
the employer’s expert’s testimony was more credible, declined to apply the
presumption. Id. at 1246. This Court acknowledged that the claimant’s expert’s
testimony constituted substantial evidence in support of his claim, but emphasized
the primacy of the WCJ’s role in weighing and crediting expert testimony and found
no basis to overturn the WCJ’s determination or conclusion. Id.
Mercer relies on Jackson Township, where the WCJ ordered the
employer to pay medical costs associated with testing the claimant, an ambulance
worker, for AIDS and hepatitis after he was spattered with an infected accident
victim’s blood and bodily fluids. Id. at 828-29. The Board affirmed, as did this
Court. We limited our holding to the facts, which were that the claimant was
exposed to the “serious risk of contracting a disease which is commonly known to
be highly contagious/infectious and potentially deadly” and where infection may
occur with a single exposure. Id. In those circumstances, we concluded that the
claimant’s risk of contracting AIDS or hepatitis from the exposure constituted an
“injury” due to the “seriousness and immediacy of the risk created by exposure” to
the disease; we also noted that the claim was limited, at least at that point, to the
costs of testing and monitoring for the diseases. Id.
Relevant to this case, the employer in Jackson Township analogized the
claimant’s request for AIDS and hepatitis testing to forcing coal mine employers to
pay for workers to be tested for lung issues after every shift on the basis that they
might develop issues later in life. Id. at 829. We expressly rejected that analogy,
emphasizing that AIDS and hepatitis are “so contagious and deadly that a person
may contract them after being exposed only once.” Id. Thus, although the facts of

34
this case align with the employer’s hypothetical in Jackson Township, that case is
clearly distinguishable here.
Further, Jackson Township did not involve the occupational disease
presumption. This Court issued a factually limited holding expanding the accepted
limits of what constitutes an “injury,” based on the nature of the diseases in question
and the similarly limited remedy sought, the costs of testing. Here, Mercer asks this
Court to expand that holding to effectively negate his prerequisite burden to show
that he actually sustained a work-related occupational disease in order to access the
presumption. Moreover, in Jackson Township, the WCJ held in the claimant’s favor
based on the evidence in that case, which does not appear to have involved expert
medical testimony. Here, the WCJ rejected the claimant’s position after hearing
from multiple experts on both sides and evaluating their testimonies thoroughly.
For these reasons, this case is more analogous to Patton and Helverson.
As in those cases, this Court has no basis to overturn the WCJ’s reasoned and
supported credibility determinations as to the non-occurrence of an occupational
disease and the legal conclusion based on those determinations that the presumption
does not apply. Accordingly, the WCJ did not err in declining to apply the
presumption and the Board did not err in affirming in this regard.

E. Employer’s Experts’ Testimony Concerning Return to Work
Mercer next argues that the WCJ erred by denying his claim petition
when two of Employer’s experts, both of whom the WCJ credited, acknowledged
that he should not return to work in a lead-oriented environment. Mercer’s Br. at
40-41 (citing Crowell v. Workmen’s Comp. Appeal Bd. (Johnson Dairy Farm), 665
A.2d 30, 33 (Pa. Cmwlth. 1995) (stating that “[i]t is inherently unfair and contrary

35
to the humanitarian purpose underlying the Act to force any claimant to choose
between receiving no benefits at all and returning to the work force under conditions
which will cause him continuing pain and may potentially cause him further
injury”)). Employer responds that Mercer’s argument cherry-picks and
mischaracterizes the experts’ testimony. Employer’s Br. at 30-31. We agree.
In Crowell, the claimant sustained a right foot injury; the employer paid
benefits for a period of time before suspending those payments. 665 A.2d at 31.
When the claimant sought reinstatement, the WCJ accepted the claimant’s doctor’s
testimony that although the claimant would be in pain, he could work; accordingly,
the WCJ denied the claimant’s reinstatement petition and the Board affirmed. Id. at
32. We reversed, first noting the comparatively low standard for reinstatement after
suspension: the claimant need not show a causal connection between the original
injury and the current disability. Id. We also noted that forcing a claimant to work
in pain and at risk of worsening an injury is sufficient for reinstatement, consistent
with the humanitarian goals of the Act. Id. at 33.
Here, Dr. Silverman testified that Mercer was physically capable of
resuming work without restrictions and that Mercer had agreed during the evaluation
that he was able to do so. C.R. at 1273-74 & 1312. Dr. Silverman would not
necessarily return Mercer to a job involving potential lead use or exposure because
of the anxiety Mercer now has about lead and because the improvements he has
made in that area would probably be compromised or erased. Id. at 1311-12. Any
other type of work would be physically reasonable to Dr. Silverman. Id. at 1312.
Similarly, Dr. Minniti stated that from a psychological standpoint, Mercer would be
employable “at the level he has been employable all along.” C.R. at 1384. She later
acknowledged that returning him to work particularly for Employer “may be

36
contraindicated” as “the experts recommend he do[es] not have further exposure to
lead.” Id. at 1419. The WCJ did not specifically address this aspect of Employer’s
experts’ testimony, but credited their opinions and, by denying Mercer’s claim
petition, the WCJ implicitly accepted their primary conclusions that no physical or
psychological basis existed to keep Mercer out of work other than for Employer.
C.R. at 48-49.
The Board distinguished Crowell on the facts but did not elaborate.
C.R. at 210. We agree that Crowell is distinguishable. First, reinstatement from an
accepted injury is a lower standard for the claimant and does not require a showing
of causation. Also, the WCJ in Crowell found as a fact that the claimant would be
in pain if returned to work. Here, the WCJ did not find Mercer sustained an injury
and did not find him credible as to the extent or even veracity of his reported
symptoms and issues. Moreover, Dr. Silverman’s acknowledgement that returning
Mercer to a lead-oriented environment would not be recommended was expressly
qualified by his statement that the reason was not because of an actual threat due to
further exposure, but simply Mercer’s subjective concerns about exposure. While
those concerns have general validity in light of the agreement by all experts that lead
exposure is not good for the body, in the absence of an actual injury or occupational
disease, compensation is not indicated. Accordingly, the WCJ did not err in giving
more weight to Employer’s experts’ testimony that Mercer could resume work
generally and without restrictions than to those experts’ acknowledgements that
returning Mercer to a lead-oriented environment might not be optimal, and the Board
did not err in affirming in this regard.

37
F. Medical Monitoring
In Brendley v. Pennsylvania Department of Labor & Industry, Bureau
of Workers’ Compensation, 926 A.2d 1276, 1281 (Pa. Cmwlth. 2007), the claimant
sought medical monitoring for brain cancer for a putative class of claimants who
were exposed to carcinogens at their workplace but had no symptoms. Id. at 1277.
In addressing Brendley’s claims, this Court discussed Jackson Township and Lash
v. Workmen’s Compensation Appeal Board (General Battery Corporation), 420
A.2d 1325 (Pa. 1980). In Lash, the workers exposed to lead had “abnormally high”
test results. Id. at 1326. There was no dispute that they had sustained lead poisoning,
but the condition was in the early stages and the workers had no symptoms. Id. at
1326. The employer removed the workers to jobs where they were not exposed to
lead, but their pay was lower. Id. Our Supreme Court ultimately held that the
workers were entitled to partial benefits because removing them from further lead
exposure at work was medically warranted and compensating for their lost wages
served the Act’s goals. Id. at 1327. After considering these cases in Brendley, this
Court concluded that a claim for medical monitoring may be compensable if the
facts show that a claimant has been exposed to hazardous substances at a level
sufficient to create a risk of future harm that can only be remedied by continued
testing.8 926 A.2d at 1281.
Mercer argues that the WCJ should have granted medical monitoring
even if it denied his claim for an occupational disease and disability. Mercer’s Br.
at 41-42. Mercer avers that the lead exposure he sustained amounts to an injury
within the meaning of the Act, including the evidence of the note by Employer’s

8
However, we ultimately concluded in Brendley that a class action was not appropriate
under the Act and directed Brendley to file a claim petition so that a WCJ could determine whether
his medical monitoring claim was compensable. 926 A.2d at 1283.

38
occupational health doctor recommending further testing and removal from the
workplace and the precedent in Jackson Township and Lash. Id. at 43. Employer
responds that Mercer’s lead exposure was never at levels high enough to constitute
an injury based on risk of worsening or warrant removal from the workplace,
therefore monitoring is not indicated here. Employer’s Br. at 30.
The WCJ did not directly address medical monitoring, but by denying
Mercer’s claim petition, implicitly denied that aspect of his claim. C.R. at 48-49.
The Board distinguished Lash because the claimants there already had abnormally
high lead levels and early-stage lead toxicity diagnoses even though they were
asymptomatic. C.R. at 211. The Board noted that Mercer’s levels were never
abnormal; whether he sustained actual lead toxicity was in dispute and was resolved
in the negative by the WCJ; therefore, there was no basis to grant for medical
monitoring. Id. We agree.
As the Board noted, the claimants in Lash had high levels and early-
stage lead toxicity diagnoses; the issue was not causation, but whether they
warranted partial benefits to compensate their lost earnings when they were moved
to lower paying jobs away from lead exposure. In Jackson Township, the claimant
was exposed to a highly contagious and deadly disease, where a single exposure
could be dispositive, and the need for testing and monitoring was imminent. By
contrast, Mercer established only exposure, and never at levels high enough to meet
OSHA’s stated minimum or even Employer’s lower internal minimum. The WCJ
credited Employer’s experts’ opinions that Mercer did not have lead toxicity, even
in an early stage like the workers in Lash. Although the experts from both sides
generally agreed that no lead is good for the body, this case does not present
circumstances sufficiently similar to Jackson Township for this Court to expand that

39
holding beyond its expressed limits so as to encompass unlimited testing for any
worker exposed to lead on the job in the absence of actual toxicity or a clear medical
risk associated with potential re-exposure at similar non-toxic levels. Accordingly,
the WCJ did not err in denying Mercer’s claim for medical monitoring and the Board
did not err in affirming in this regard.

G. Litigation Costs
Section 440(a) of the Act, added by Act of February 8, 1972, P.L. 25,
provides:
In any contested case . . . the employe . . . in whose favor
the matter at issue has been finally determined in whole or
in part shall be awarded, in addition to the award for
compensation, a reasonable sum for costs incurred for
attorney’s fee, witnesses, necessary medical examination,
and the value of unreimbursed lost time to attend the
proceedings . . . .

77 P.S. § 996(a). Our Supreme Court has held that “when a contested case is
resolved in favor of an employee, a reasonable sum for attorney’s fees shall be
awarded to the claimant.” Lorino v. Workers’ Comp. Appeal Bd. (Cmwlth. of Pa.),
266 A.3d 487, 494 (Pa. 2021) (emphasis in original). As the statute also includes
the costs incurred by a party for witnesses and necessary medical examinations, such
costs are also warranted when the claimant is successful. However, there is no basis
for an award of litigation costs when the claimant is not successful. Lawhorne v.
Lutron Elecs. Co. (Workers’ Comp. Appeal Bd.), 284 A.3d 239, 244 (Pa. Cmwlth.
2022) (stating that a claimant “must prevail on the contested issue in order to be
awarded litigation costs”).
Mercer argues that because the WCJ erred in failing to grant his claim
petition, should this Court reverse, his attorneys must recover their litigation costs.

40
Mercer’s Br. at 44. However, Mercer has not prevailed on any aspect of this appeal.
As such, Employer is not bound to pay his litigation costs. The WCJ did not err in
declining to assess those costs against Employer and the Board did not err in this
regard.

III. Conclusion
For the foregoing reasons, the order of the Board affirming the order of
the WCJ denying Mercer’s claim petition is affirmed.

________________________________
CHRISTINE FIZZANO CANNON, Judge

41
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jerry Mercer, :
Petitioner :
:
v. :
:
Active Radiator MPN, Inc. (Workers’ :
Compensation Appeal Board), : No. 1326 C.D. 2023
Respondent :

ORDER

AND NOW, this 3rd day of June, 2024, the October 18, 2023, order of the
Workers’ Compensation Appeal Board, which affirmed the January 27, 2023, order
of the Workers’ Compensation Judge, which denied Jerry Mercer’s claim petition,
is AFFIRMED.

___________________________________
CHRISTINE FIZZANO CANNON, Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9976379. Public record. Not legal advice.