Appendix — Smith v. Consolidated Freightways

airway dysfunction due to trichloroethane exposure.

The claimant testified that he was exposed on

February 28, 1996, but continued to work for several

weeks. He then went on an extended overseas

vacation, and did not cease working until April 12,

1996. This hiatus clearly supports the opinions of

Drs. Guzzardi and Schein concluding that the

claimant’s exposure to the chemical was a minor

irritant, lasting a few days. I further credit the

opinions of Dr. Guzzardi as he is a toxicologist and

reviewed the available literature on trichloroethane

exposure and its consequences prior to offering an

opinion.

16. I accept as credible the testimony of the claimant

regarding his exposure and complaints. I further find

as fact that the claimant was exposed to

trichloroethane during his regular work duties.

However, no injury or disability resulted from the

exposure.

17. The claimant’s counsel offered a bill of costs as

follows:

Dr. Norman Frey — records $25.00

Sargent’s Court Reporting 121.55

Dr. Nellhaus — report 200.00

Sargent’s Court Reporting 56.80

TOTAL 403.35

18. The claimant has a contingent fee agreement with his

counsel in the amount of 20%, which is approved as

reasonable.

19. A statement of wages was not submitted by the

employer.

20. The employer’s contest of this matter was reasonable.

CONCLUSIONS OF LAW

1. The claimant, Steven Smith, has failed to meet the

burden of proof required to demonstrate that his claim

petition for the closed period of April 12, 1996 to

September 24, 1996 should be granted.

2. Unequivocal medical testimony is required to

establish that the claimant incurred a disabling injury

as a result of exposure to trichloroethane. Credible

medical evidence combined with the testimony of the

claimant establishes no causal connection of a

disabling injury related to the claimant’s employment.

ORDER

AND NOW, this 15” day of October, 1997, the claimant’s

claim petition is dismissed. No items in the bill of costs are

payable. No attorney’s fees are payable.

/s/ Kathleen Vallely, Workers’ Compensation Judge

1]

Commonwealth of Pennsylvania

Department of Labor and Industry

Bureau of Workers’ Compensation

teven Smith, claiman

Ys

Consolidated Freightways

HEARINGS: 12/10/97; record made

2/11/98; record made

8/26/98; record made

CLAIMANT’S WITNESSES & EXHIBITS:

Medical expenses

Hazardous substance fact sheets

MSDS on wood floor adhesive

Hazardous materials incident report

Grievance materials

ARWN

EMPLOYER’S WITNESSES & EXHIBITS:

None

BUREAU EXHIBITS:

10/16/97 WCOD Decision and Order

FINDINGS OF FACT

1. Claimant, Steven Smith, through counsel, filed a

petition for medical review. The claimant avers in his

petition that by Decision circulated on October 16, 1997,

J had found that claimant was exposed to a toxic

substance. However, while there is a finding that no

“disability”’ resulted from the exposure, there is no

finding with regard to the medical bills claimant incurred

as a result of this exposure. Claimant seeks a review of

the Decision on the issue of payment of medical

treatment.

2. Defendant employer, Consolidated Freightways, filed

a timely responsive answer denying the matenal

12

allegations contained in claimant’s petition.

3. Ina Decision circulated on October 16, 1997, I found

in finding of fact number 16 that the claimant was

exposed to trichloroethane during his regular work

duties. However, I found that no injury or disability

resulted from that exposure. I further found that

claimant 2ad received no medical treatment between

February 28, 1996, the date of his exposure, and

August 12, 1996 for any symptoms he believed were

associated with the work-related chemical exposure.

I further found that the claimant’s exposure to the

chemical was transient and that there were no known

cases of exposure to trichloroethane causing

- pulmonary problems. I also credited the opinion of

Dr. Guzzardi that the claimant’s complaints were

caused to reflux due to hiatal hernia.

4. Claimant has not offered any evidence to support a

finding that any treatment he received was related to

his exposure to the chemical trichloroethane.

5. Claimant has not established that he has undergone

any medical treatment that it causally related to the

chemical exposure of February 28, 1996.

CONCLUSIONS OF LAW

1. Claimant has not met his burden of proof and

established that he is entitled to reimbursement of any

medical expenses.

RDER

AND NOW, this 30” day of November, 1998, claimant’s

petition is denied.

/s/Kathleen Vallely, Workers’ Compensation Judge

13

Commonwealth of Pennsylvania

Workers’ Compensation Appeal Board

Steven Smith, claimant

os Nos. A97-4661/A98-4922

C lidated Freightways.

Defendant

PINION

McDermott, Chairman:

Claimant appeals to the Workers’ Compensation

Appeal Board (Board) from the Decisions and Orders of

Workers’ Compensation Judge (WCJ) Kathleen Vallely,

circulated on October 16, 1997, and November 30, 1998,

denying Claimant’s claim Petition and Review Medical

Petition. We affirm for the reasons stated below.

On May 15, 1996, Steven Smith (Claimant) filed a

Claim Petition alleging that on February 28, 1996, he was

exposed to the chemical “‘trichloroethane”’ in the course and

scope of his employment with Consolidated Freightways

(Defendant). Claimant requested total disability benefits

from April 12, 1996, for an indefinite period but later

amended to request benefits from April 12, 1996, through

September 24, 1996.

In a Decision and Order circulated on October 16,

1997, the WCJ denied Claimant’s Claim Petition, concluding

that he failed to meet his burden of proving a disabling injury

as a result of exposure to a toxin and failed to establish a

causal connection between a disabling injury and his work.

Claimant’s Appeal followed.

On October 31, 1997, Claimant filed a Review

Medical Petition seeking to review the WCJ’s October 16,

1997, Decision and Order. Claimant alleged that the WCJ

failed to render a Finding as to whether Claimant was entitled

to payment of medical bills incurred as a result of exposure to

toxic substances. Defendant filed an Answer denying all

matenial allegations and asserting that the WCJ’s Decision

14

was being appealed and the Review Petition was not

appropriately before the WCJ.

In a Decision and Order circulated on November 30,

1998, the WCJ denied Claimant’s Review Petition

concluding that he failed to sustain his burden of proving an

entitlement to a reimbursement of medical expenses.

Claimant’s Appeal followed. We consolidate Claimant’s

Appeals for the sake of judicial economy.

The Board’s scope of review is limited to determining

whether an error of law has been committed and whether the

necessary Findings of Fact are supported by substantial

competent evidence. Universal Cyclops Steel Corporation v.

WCAB and Krawezynski, 305 A.2d 757 (Pa. Cmwith. 1973).

Substantial competent evidence is such evidence that a

reasonable mind would accept as adequate to support a

Finding of Fact. York T Vv

(Lucas), 591 A.2d 762 (Pa. Cmwith. 1991).

Claimant argues that the WCJ erred in denying his

Claim Petition. Specifically, Claimant asserts that the WCJ

rendered Findings that he was exposed to a toxin and did not

suffer any injury or disability, but failed to address medical

treatments related to exposure.

The burden of proof in an original claim petition is on

the claimant to prove a disability resulting from a work injury

and that the injury continued to cause a disability throughout

the pendency of the claim petition. Inglis House v. WCAB

(Reedy), 535 Pa. 135, 634 A.2d 592 (1993). If the cause of

the condition is not obvious, unequivocal medical testimony

is required. Cardyn v. WCAB (Heppenstall), 517 Pa. 98, 534

A.2d 1389 (1987).

Claimant testified that he was a driver/salesman for

Defendant. On February 28, 1996, Claimant’s load contained

a hazardous material. After Claimant made two deliveries,

he noticed that one of the hazardous maternal containers was

leaking. The odor emanating from the leaking container

caused his throat to burn and made him nauseous and light

headed. He immediately left his trailer and contacted Frank

Bazacheck, a manager, who told him to secure the material

15

and bring it back to the terminal. Claimant returmed to the

terminal and continued to work the remainder of the day

without difficulty. Claimant did not contact a doctor or miss

work for reasons related to this incident but continued to

cough and feel ill. On April 12, 1996, Claimant went to the

company doctor and has not returned to work since that date.

Claimant elected to retire as of August, 1996. Claimant

testified that he cannot return to work because he continues

to suffer from shortness of breath. (N.T., 7/25/96, Pgs. 7, 17-

27, 41-42; N.T., 11/13/96, Pgs. 8-9).

Claimant and Defendant presented the May 28, 1996,

medical report from Kurt Nellhaus, M.D., F.C.C.P., which

contains a diagnosis of possibly airway injury secondary to

trichloroethane exposure and possible reactive airway disease

related to the lung exposure. (Claimant’s Exhibit 3;

Defendant’s Exhibit B).

Claimant also presented the September 24, 1996,

medical report of Kurt Nellhaus, M.D., which reiterates the

diagnosis of reactive airway dysfunction possibly tnggered

by trichloroethane exposure. The doctor opined that

Claimant’s exposure did cause Claimant a period of disability

that was not permanent. (Claimant’s Exhibit 6).

Claimant also submitted the Apmnil 4, 1996, OSHA

report, which cited Defendant for failure to properly maintain

chemical data sheets and labeling methods. (Claimant’s

Exhibit 5).

In opposition, Defendant presented the October 26,

1996, medical report of Lawrence Guzzardi, M.D., M.B.A.

Dr. Guzzardi opined that Claimant’s symptoms were not

related to his transient exposure to trichloroethane. He noted

that Claimant did not exhibit objective evidence of a

pulmonary injury either at the time of exposure or at the time

of his pulmonary evaluation. The doctor opined that

Claimant’s symptoms were the result of esophageal reflux

_ from a non-work-related hernia. (Defendant’s Exhibit A).

The WCJ found Claimant’s testimony regarding his

exposure and complaints credible, but rejected his testimony

as it referred to any injury or period of disability. The WCJ

16

further found Dr. Guzzardi’s report credible and rejected the

reports of Dr. Nellhaus as equivocal. The WCJ, as the

ultimate fact finder, has exclusive authority to determine the

credibility of witnesses and to resolve conflicts in testimony.

Vazquez v. WCAB (Masonite Corp.), 687 A.2d 66 (Pa.

Cmwith. 1996). Where, as here, that testimony provides

substantial support for the WCJ’s Finding, we may not alter

that Finding on Appeal. P iSSi

vy. WCAB (Collins), 709 A.2d 460 (Pa. Cmwith. 1998).

After a review of the record, we discern no error in

the WCJ’s conclusion that Claimant failed to establish a

work-related injury or resulting disability. Dr. Guzzardi

opined that Claimant’s transient exposure to the toxin did not

cause his symptoms or any period of disability. Thus, we

discern no error in the WCJ’s Decision to deny Claimant’s

Claim Petition. As the WCJ’s Decision to deny Claimant’ s

Claim Petition based upon a lack of a work injury, a

subsequent disability, and a causal connection is supported

by the evidence, there was no need for the WCJ to detail

Claimant’s medical treatments related to exposure. We

discern no merit in Claimant’s argument.

With respect to Claimant’s Review Petition, Claimant

argues that the WCJ capriciously disregarded evidence when

she found that no injury or disability resulted from

Claimant’s exposure to trichloroethane, that Claimant did not

receive medical treatment from February 28, 1996, through

August 12, 1996, that Claimant’s exposure was transient and

there are no known cases of exposure to trichloroethane

causing pulmonary problems, and that Claimant’s complaints

were caused by a hernia condition.

In a review medical petition, the issue is whether the

medical treatment is causally related to the work injury, and

not whether the medicai treatment is reasonable or necessary.

Mercy Douglas Corp. v. WCAB (Davis), 713 A.2d 722 (Pa.

Cmwith. 1998); Warminster Fiberglass v. WCAB (Jorge),

708 A.2d 517 (Pa. Cmwith. 1998). The burden of proof is on

the party filing the petition. Collier v. WCAB (Taylor

Hospital), 719 A.2d 820 (Pa. Cmwith. 1998). Capricious

17

disregard is the standard of review used when the party with

the burden of proof is the only party to present evidence and

that burdened party loses. Tomczak B Pro-Aire

Transport, Inc.), 667 A.2d 271 (Pa. Cmwlth. 1995). As

Defendant did not present evidence, we shall apply the

Capricious disregard standard.

Claimant submitted copies of medical expenses and

payment checks, a statement from the Commonwealth

Department of Labor and Industry detailing methods of

handling hazardous materials, a Material Safety Data Sheet

which indicates that exposure to trichloroethane ay be

harmful, an incident report, and information regarding his

grievance process. (Exhibits 1-5). However, none of these

documents establish a causal relationship between Claimant’s

exposure and his alleged work injury or symptoms.

Furthermore, as we have affirmed the WCJ’s Decision that

Claimant did not sustain a work-related injury or resultant

disability, we discern no error in the WCJ’s Decision to deny

Claimant’s Review Petition.

With respect to the Review Petition, Claimant also

argues that the WCJ did not render a reasoned Decision as

required by Section 422(a) of the Act because she did not

adequately state her reasons for discrediting competent

evidence.

Section 422(a) of the Workers’ Compensation Act

provides that all parties are entitled to a reasoned Decision

with Findings of Fact and Conclusions of Law which clearly

and concisely explain the WCJ’s rationale. The WCJ must

specify the evidence relied upon and state the reasons for

accepting it. Uncontroverted evidence may not be rejected

without a reason and must explain the rejection of such

evidence. 77 P.S. Section 834; Hahnemann University

Hospital v. WCAB (Wallace), 718 A.2d 391 (Pa. Cmwith.

1998).

The WCJ analyzed Claimant’s evidence and

concluded that it was inadequate to meet his burden of proof.

' Act of June 2, 1915, P.L. 736, as amended, 77 P.S. Sections 1-1041.4;

2501-2626.

18

As we have affirmed the WCJ’s Decision in this regard, the

WC] did not unreasonably reject the evidence and therefore

the Decision falls within the mandates of Section 422(a).

Claimant’s argument is rejected.

Accordingly:

ORDER

The Appeals of Claimant are DENIED.

The Decisions and Orders of the Workers’

Compensation Judge denying Claimant’s Claim and Review

Petitions are AFFIRMED.

BY THE BOARD: s/ Susan McDermott

Commonwealth of Pennsylvania

Department of Labor and Industry

Workers’ ion A ] d

Steven Smith. clai

ve No: A02-1087

Consolidated Freightways

OPINION

FRIONI, COMMISSIONER:

Before the Workers’ Compensation Appeal Board is

the Appeal of Steven Smith (Claimant) from the Decision

and Order of Workers’ Compensation Judge (WCJ) David

Henry, denying Claimant’s Claim Petitions based on res

judicata/collateral estoppel. We affirm for the reasons stated

below

Claimant originally filed a Claim Petition on May 15,

1996, alleging that he sustained an injury during the course

and scope of his employment with Consolidated Freightways

(Defendant) on February 28, 1996, resulting from exposure

to a harmful chemical identified as “trichloroethane.” By a

Decision circulated October 16, 1997, WCJ Vallely denied

this Claim Petition.

Claimant then filed a Review Medical Petition

seeking review of WCJ Vallely’s Decision with regard to the

payment for medical treatment. WCJ Vallely denied this

Petition as well. Claimant appealed both of WCJ Vallely’s

Decisions to this Board. The Board affirmed both Decisions

by an Opinion dated December 31, 1999.

On September 27, 2001, Claimant filed three new

Claim Petitions, again alleging that he sustained a work-

related injury caused by exposure to hazardous materials on

February 28, 1996. Defendant moved for dismissal on the

grounds of res judicata, collateral estoppel and statute of

limitations. By a Decision and Order circulated on March

26, 2002, WCJ Henry denied Claimant’s Claim Petitions,

concluding that Claimant was precluded from re-litigating the

same issues that were addressed in Claimant’s previous

20

Claim Petition. Claimant’s Appeal followed.

The Board’s scope of review is limited to determining

whether substantial, competent evidence supports the WCJ’s

findings of fact or whether an erro: of law was committed.

Bethenergy Mines, Inc. v. WCAB (Skirpan), 531 Pa. 287,

612 A.2d 434 (1992). If the Board finds that the record

contains evidence which a reasonable person might find

sufficient to support the WCJ’s findings of fact, the findings

must be affirmed. Id. The WCJ has sole province over

questions of credibility and may accept or reject the

testimony of any witness, including a medical witness, in

~ whole or in part. Hess Bros. v. WCAB (Gomick), 563 A.2d

236 (Pa. Cmwith. 1989).

Claimant argues that the WC] erred and abused his

discretion in failing to consider after-discovered evidence in

the form of a corrected Material Data Safety Sheet explaining

the chemical make-up and hazardous classification of

trichloroethane. In support of his Appeal, Claimant cites case

law interpreting the Board’s power to grant rehearing under

Section 426 of the Workers’ Compensation Act (Act), 77

P.S. Section 871.

Preliminarily, we observe that the WCJ adequately

considered the after-discovered evidence submitted by

Claimant. WCJ Henry stated in his findings that he reviewed

the evidence as a whole but did not find the new evidence to

have any weight in changing the outcome. WCJ Henry

specifically stated that despite the additional material data

safety sheet, he found it to be of no material consequence,

since the sheet listed trichloroethane, and WC) Vallely

previously made a finding that Claimant was exposed to that

chemical. In addition, WCJ Henry clearly found that the

medical evidence regarding what specific chemical Claimant

was exposed to was not relevant, given the fact that Claimant

ultimately failed to prove a disability from chemical

exposure. [Finding of Fact No. 5].

We must point out, however, this case does not

include a Request for Rehearing under Section 426. Instead

Claimant simply filed new Claim Petitions for the same

alleged injury that was the subject of his prior Claim Petition.

Consequently, the WCJ dismissed those Petitions based on

res judicata/collateral estoppel. Therefore, the proper inquiry

in this Appeal is whether WCJ Henry correctly applied these

doctrines in dismissing Claimant’s latest Petitions.

We agree that Claimant’s Petition is barred under the

concept of res judicata. Res judicata applies when there is 1)

identity of the thing sued upon or for; 2) identity of the cause

of action; 3) identity of the persons and parties to the action;

and 4) identity of the quality and capacity of the parties suing

or being sued. Mason v. WCAB (Hilti Fastening Systems

Corp.), 657 A.2d 1020 (Pa. Cmwith. 1995). Whether two

actions are identical depends on whether the ultimate and

controlling issues have been previously decided. Hammel v.

Hammel, 636 A.2d 703 (Pa. Super. 1994).

Claimant is alleging the same date of injury and the

same mechanism of injury, exposure to hazardous material,

in his subsequent Claim Petitions as in his first Petition.

Claimant is claiming the exact same symptoms and

complaints and seeking the exact same type of benefits. In

all the actions on this matter the parties have been the same.

Consequently, we cannot agree with Claimant’s argument

that res judicata does not apply. Significantly, he advances

no authority, and we are aware of none, that allows the WCJ

or this Board to disregard a prior adverse adjudication.

Accordingly, we:

ORDER

The Decision and Order of the Workers’

Compensation Judge denying Claimant’s Claim Petition is

hereby AFFIRMED. The Appeal of Claimant is Denied.

BY THE BOARD:

/s/ Alfonso Frioni

IN THE COMMONWEALTH COURT OF

PENNSYLVANIA

Steven Smith,

Petitioner

v. No. 1828 C.D. 2003

Worker’s Compensation

Appeal Board (Consolidated Freightways),

Respondent

ORDER

NOW, March 9, 2004, upon consideration of

petitioner’s request to report the opinion accompanying our

Order in the above-captioned matter, the request is denied.

BY THE COURT

/s/ James Gardner Colins, President Judge

°

ORDER TO BE REVIEWED

IN THE COMMONWEALTH COURT OF

PENNSYLVANIA

Steven Smith,

Petitioner

v. No. 1828 C.D. 2003

Worker’s Compensation

Appeal Board (Consolidated Freightways,

Respondent

ORDER

AND NOW, this 17" day of December, 2003, the

decision of the Workers’ Compensation Appeal Board is

AFFIRMED.

S/ Robert Simpson, Judge

MEMORANDUM OPINION

Steven Smith (Claimant), representing himself,

appeals the decision of the Workers’ Compensation Appeai

Board (Board) that determined his second claim petition was

barred by res judicata and collateral estoppel. As Claimant’s

earlier identical claim petition was denied, we agree he

cannot re-litigate the matter, and we affirm.

Claimant was employed by Consolidated Freightways

(Employer) as a truck driver. In February 1996, he was

exposed to trichloroethane. Following exposure, Claimant

claimed shortness of breath, bronchitis, cough, and throat

irritation.

Claimant filed a claim petition averring total

disability with an onset date of April 12, 1996. Claimant and

Employer presented conflicting expert reports on causation.

The WCJ accepted Employer’s experts over Claimant’s

expert, finding:

14. After a thorough review of the testimony of the

claimant, the circumstances during and after the

24

15.

16.

trichloroethane exposure, and the medical reports

offered, I find as fact that the claimant has not

established through unequivocal medical evidence

that he suffered a period of disability causally related

to exposure to the chemical trichloroethane.

I specifically find that the reports of Dr. Nellhaus are

equivocal. He distinctly noted a “possibility” of

airway dysfunction due to trichloroethane exposure.

The claimant testified that he was exposed on

February 28, 1996, but continued to work for several

weeks. He then went on an extended overseas

vacation, and did not cease working unti] April 12,

1996. This hiatus clearly supports the opinions of

Drs. Guzzardi and Schein concluding that the

claimant’s exposure to the chemical was a minor

irritant, lasting a few days. I further credit the

opinions of [Employer’s toxicologist] as he is a

toxicologist and reviewed the available literature on

trichloroethane exposure and its consequences prior

to offering an opinion.

I accept as credible the testimony of the claimant

regarding his exposure and complaints. I further find

as fact that the claamant was exposed to

trichloroethane during his regular work duties.

However, no injury or disability resulted from the

exposure.

October 15, 1997 "VCJ Op. at 3 (emphasis added). Claimant

appealed to the Board which, finding the WCJ’s decision

supported by substantial evidence, affirmed.

In September 2001, Claimant filed a second claim

petition again alleging that exposure to trichloroethane in

February 1996 caused indefinite disability with an onset date

of April 12, 1996. Employer raised the defenses of res

judicata, collateral estoppel, and statute of limitations.

F

Claimant argued his claim was not barred because

Employer defrauded him by failing to turn over a material

data safety sheet (MSDS) for the chemicals to which he was

exposed at work. The WC] rejected Claimant’s argument,

finding that:

Even if [Employer] had the MSDS in its

possession, and failed to turn it over to the

claimant, it would not have changed the

outcome of the earlier proceedings. The judge

already found that the claimant was exposed

to that chemical, but found that there was no

adverse effect as a result of that exposure. In

fact, she relied upon the doctor’s opinion that

his symptoms were related to a non work-

related condition. Therefore, there is no

Jegitimate reason to reopen this matter.

March 15, 2002 WCJ Op. at 3; Finding of Fact (F.F.) No. 5.

Agreeing Claimant’s peition was barred by res judicata and

collateral estoppel, the Board affirmed.

Claimant now petitions this Court for review of the

Board’s order arguing Employer defrauded him and the

original WCJ by not providing the MSDS documents in a

timely manner. Claimant asserts this document discloses

information pertaining to the exact nature of the chemicals to

which he was exposed, and he requests a rehearing on

causation.

The doctrine of res judicata provides that where there

is a final judgment on the merits, future litigation between the

parties on the same cause of action is prohibited. Myers v.

Workers Compensation Appeal Board (Univ. of

Pennsylvania), 7782 A.2d 1108 (Pa. Cmwilth. 2001), appeal

denied, 568 Pa. 688, 796 A.2d 319 (2002). Res judicata

encompasses two related, yet distinct priciples: technical res

judicata, or claim preclusion, and collateral estoppel, or issue

preclusion. Henion v. Workers’ Comp. eal Bd. (Fir

Sons, Inc.), 776 A.2d 362, 365 (Pa. Cmwith. 2001).

‘‘Technical res judicata provides that when a final

26

judgment on the merits exists, a future suit between the

parties on the same cause of action is precluded.” Id.

Technical res judicata applies when the following four

identities are present: (1) identity of the thing sued upon or

for; (2) identity of the causes of action; (3) identity of the

persons or parties to the action; and (4) identity of the quality

or capacity of the parties suing or being sued. Id. Res

judicata applies to claims that were actally litigated as well as

those matters that should have been litigated. Id. Generally,

causes of action are identical when the subject matter and the

ultimate issues are the same in both the old and new

proceedings. Id.

The doctrine of collateral estoppel/ issue preclusion

prevents the re-litigation of issues of law or fact in a

subsequent action when the following factors are

demonstrated:

(1) the issue decided in the prior case is

identical to the one presented in the later case;

(2) there was a final judgment on the merits;

(3) the party against whom the doctrine is

asserted was a party or in privity with a party

in the prior case and had a full and fair

opportunity to litigate the issue and;

(4) the determination in the prior proceeding

was essential to the final judgment.

C.D.G., Inc. v. W.C:A.B. (McAllister), 702 A.2d 873, 875

(Pa. Cmwith. 1997)(footnote omitted).

The four identities necessary for the application of

technical res judicata/claim preclusion are present.

Claimant’s second claim petition was materially identical to

his first. It sought benefits beginning on April 12, 1996.

Also, it sought the same remedy, under the same theory,

against the same parties.

Further, the four requirements of collateral

estoppel/issue preclusion are met. The issues presented, and

27

the claim of disability beginning April 12, 1996 caused by

exposure to trichloroethane, are identical. The claim petition

resulted in a final judgment, and Claimant was a party

provided a full and fair opportunity to litigate the issue.

Claimant asserts relitigation of the claim petition is

warranted because Employer failed to provide him the MSDS

during the first litigation. In support, he cites General

Woodcraft & Foundry v. Workmen’s Comp. Appeal Bd., 318

A.2d 385 (Pa. Cmwlth. 1974). General Woodcraft &

Foundry addressed the applicability of Section 426 of

Workmen’s Compensation Act. Finding Board discretion to

order a reargument, this Court stated, “Certainly it would be

appropriate to grant a rehearing where additional evidence

can be produced or where-a party had not been given an

opportunity to present his case.”” General Woodcraft &

Foundry, 31% A.2d at 387.

General Woodcraft & Foundry is inapposite. It

addressed situations in which a rehearing is appropriate

pursuant to Section 426. Claimant did not and, due to the

passage of time, could not petition for a rehearing under that

section; rather, he filed a new claim petition four years after

his original petition was denied. Further, “‘[t]he purpose of

granting rehearing in workmen’s compensation cases is to

allow a party to present newly-discovered, noncumulative

evidence, and will not be granted to permit the party to

strengthen weak proofs already presented.”’ Paxos v.

Workmen’ mp. A d. (Frankford-Quaker Grocery),

631 A.2d 826, 831 (Pa. Cmwlth. 1993)(emphasis added).

Denial of the original claim petition was premised on

the rejection of Claimant’s equivocal expert testimony and

Claimant’s conduct after exposure. Any error stemming

from Employer’s alleged failure to provide the MSDS was

harmless. That document offers information regarding the

nature of the chemical to which claimant was exposed. The

document does not render Claimant’s expert less equivocal

and does not offer new information on Claimant’s conduct

after exposure.

As he was provided a full and fair opportunity to

28

litigate causation, Claimant’s second petition was barred by

res judicata and collateral estoppel. Accordingly, the Board’s

order is affirmed.

/s/ Robert Simpson, Judge

29

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

Steven Smith,

Petitioner

v. No. 243 WAL 2004

Worker’s Compensation

Appeal Board (Consolidated Freightways),

Respondent os

ORDER

PER CURIAM

AND NOW, this 23“ day of March, 2005, the Petition

for Allowance of Appeal is hereby Denied.

30

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

Steven Smith,

Petitioner

v. No. 243 WAL 2004

Worker’s Compensation

Appeal Board (Consolidated Freightways),

Respondent

ORDER

PER CURIAM -

AND NOW, this 19" day of April, 2005, the

Application for Reconsideration is hereby denied.

31

STATUTORY PROVISIONS

Hazard Communication, 29 C.F.R. 1910.1200:

1910.1200(b)(4) (ii)

Employers shall maintain copies of any material safety data

sheets that are received with incoming shipments of the

sealed containers of hazardous chemicals, shall obtain a

material safety data sheet as soon as possible for sealed

containers of hazardous chemicals received without a

material safety data sheet if an employee requests the

material safety data sheet, and shall ensure that the material

safety data sheets are readily accessible during each work

shift to employees when they are in their work area(s); and,

1910.1200(f) "Labels and other forms of warning."

(1) The chemical manufacturer, importer, or distributor shall

ensure that each container of hazardous chemicals leaving the

workplace is labeled, tagged or marked with the following

information:

(i)Identity of the hazardous chemical(s);

(11) Appropriate hazard warnings; and

(111) Name and address of the chemical manufacturer,

importer, or other responsible party.

[...](3) Chemical manufacturers, importers, or distributors

shall ensure that each container of hazardous chemicals

leaving the workplace is labeled, tagged, or marked in

accordance with this section in a manner which does not

conflict with the requirements of the Hazardous Materials

Transportation Act (49 U.S.C. 1801 et seq.) and regulations

issued under that Act by the Department of Transportation.

1910.1200(g) “Material safety data sheets."

(1) Chemical manufacturers and importers shall obtain or

develop a material safety data sheet for each

hazardous chemical they produce or import.

Employers shall have a material safety data sheet in

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the workplace for each hazardous chemical which

they use.

49 C.F.R. 171.1, Applicability of Hazardous Materials

Regulations (HMR) to persons and functions.

Sec. 171.1 Purpose and scope.

This subchapter prescribes the requirements of the

Department of Transportation governing:

(a) The transportation of hazardous materials in commerce

by, and their offering to: [.. . .]

(2) Interstate and foreign carriers by motor vehicle; and

(3) Intrastate carriers by motor vehicle so far as this

subchapter relates to:

(i) Hazardous waste.

(ii) Hazardous substances.

Pca

(c) Any person who, under contract with any department,

agency, Or instrumentality of the executive, legislative, or

judicial branch of the Federal Government, transports, or

causes to be transported or shipped, a hazardous material or

manufactures, fabricates, marks, maintains, reconditions,

repairs, or tests a package or container which is represented,

marked, certified, or sold by such person as qualified for use

in the transportation of hazardous materials shal] be subject

to and comply with all provisions of the Federal hazardous

material transportation law, all orders and regulations issued

thereunder, and all other substantive and procedural

requirements of Federal, State, and local governments and

Indian tribes (except any such requirements that have been

preempted by the Federal hazardous material transportation

law or any other Federal! law), in the same manner and to the

same extent as any person engaged in such activities that are

in or affect commerce is subject to such provisions, orders,

regulations, and requirements.

(d) The use of terms and symbols prescribed in this

subchapter for the marking, labeling, placarding and

descnption of hazardous materials and packagings used in

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their transport.

[Amdt. 171-53, 45 FR 34586, May 22, 1980, as amended by

Amdt. 171-74, 48 FR 27690, June 16, 1983; Amdt. 171-78,

49 FR 10510, Mar. 20, 1984; Amdt. 171-12, 56 FR 8624,

Feb. 28, 1991; Amdt. 171-116, 57 FR 52934, Nov. 5, 1992;

Amdt. 171-119, 58 FR 6870, Feb. 2, 1993; Amdt. 171-2, 59

FR 49132, Sept. 26, 1994; Amdt. 171-141, 61 FR 21101,

May 9, 1996]

Sec. 171.2; General requirements,

(a) No person may offer or accept a hazardous material for

transportation ‘n commerce unless that person is registered in

conformance with subpart G of part 107 of this chapter, if

applicable, and the hazardous material is properly classed,

described, packaged, marked, labeled, and in condition for

shipment as required or authorized by applicable

requirements of this subchapter, or an exemption, approval or

registration issued under this subchapter or subchapter A of

this. chapter.

(b) No person may transport a hazardous material in

commerce unless that person is registered in conformance

with subpart G of part 107 of this chapter, if applicable, and

the hazardous material is handled and transported in

accordance with applicable requirements of this subchapter,

or an exemption, approval or registration issued under this

subchapter or subchapter A of this chapter.

eee |

(e) When a person performs a function covered by or

having an effect on a specification prescribed in part 178, 179

or 180 of this subchapter, an approval issued under this

subchapter, or an exemption issued under subpart B of this

chapter, that person must perform the function in accordance

with that specification, approval, or exemption, as

appropriate.

(f) No person shall, by marking or otherwise, represent

that--

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(1) A container or package for the transportation of

hazardous materials is safe, certified, or in compliance

with the requirements of this title unless it meets the

requirements of all applicable regulations issued under

the Federal hazardous material transportation law .. .

[Amdt. 171-70, 48 FR 2655, Jan. 20, 1983, as amended by

Amdt. No. 171-100, 54 FR 25004, June 12, 1989; Amdt.

171-12, 56 FR 8624, Feb. 28, 1991; Amdt. No. 171-115, 57 .

FR 30631, July 9, 1992; 57 FR 37902, Aug. 21, 1992; Amdt.

No. 171-120, 58 FR 33305, June 16, 1993; Amdt. 171-2, 59

FR 49132, Sept. 26, 1994; Amdt. 171-141, 61 FR 21101,

May 9, 1996]

* KKK

Sec. 171.16 Detailed h dous materials incident

reports.

(a) Each carrier who transports hazardous materials shall

report in writing, in duplicate, on DOT Form F 5800.1 (Rev.

6/89) to the Department within 30 days of the date of

discovery, each incident that occurs during the course of

transportation (including loading, unloading, and temporary

storage) in which any of the circumstances set forth in Sec.

171.15(a) occurs or there has been an unintentional release of

hazardous materials from a package (inciuding a tank) or any

quantity of hazardous waste has been discharged during

transportation. If a report pertains to a hazardous waste

discharge:

(1) A copy of the hazardous waste manifest for the waste

must be attached to the report; and

(2) An estimate of the quantity of the waste removed from

the scene, the name and address of the facility to which

it was taken, and the manner of disposition of any

removed waste must be entered in Section IX of the

report form (Form F 5800.1) (Rev. 6/89).

(b) Each carrier making a report under this section shall

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send the report to the Information Systems Manager, DHM-

63, Research and Special Programs Administration,

Department of Transportation, Washington, DC 20590-0001;

and, for incidents involving transportation by aircraft, a copy

of the report shall also be sent to the FAA Civil Aviation

Security Office nearest the location of the incident. A copy of

the report shall be retained for a period of two years, at the

carrier's principal place of business, or at other places as

authorized and 2»proved in writing by an agency of the

Department of Transportation.

(c) Except as provided in paragraph (d) of this section, the

requirements of paragraph (a) of this section do not apply to

incidents involving the unintentional release of a hazardous

material--

(1) Transported under one of the following proper shipping

names:

(i) Consumer commodity.

(ii) Battery, electric storage, wet, filled with acid or alkaii.

(ii) Paint and paint related material when shipped in a

packaging of five gallons or less.

(3) Prepared and transported as a limited quantity

Shipment in accordance with this subchapter.

(d) The exceptions to incident reporting provided in

paragraph (c) of this section do not apply to:

(1) Incidents required to be reported under Sec. 171.15(a);

(2) Incidents involving transportation aboard aircraft;

(3) Except for consumer commodities, materials in

Packing Group I; or

(4) Incidents involving the transportation of hazardous

waste.

Note: A guideline document for assisting in the completion

of DOT Form F 5800.1 (Rev. 6/89) may be obtained from the

Office of Hazardous Materials Transportation, DHM-51,

U.S. Department of Transportation, Washington, DC 20590-

0001.

[Amdt. 171-7, 35 FR 16837, Oct. 3, 1970, as amended by

36

Amdt. 171-56, 45 FR 73683, Nov. 6, 1980; Amdt. No. 171-

65, 47 FR 24584, June 7, 1982; Amdt. 171-72, 48 FR 17095,

Apr. 21, 1983; Amdt. 171-101, 54 FR 25813, June 19, 1989;

- Amdt. 171-109, 55 FR 39978, Oct. 1, 1990; Amdt. 171-140,

61 FR 18932, Apr. 29, 1996; Amdt. 171-145, 61 FR 27172,

May 30, 1996]Sec. 171.17 [Reserved]

Sec. 171.2 istance in investigations an cial studies.

(a) A carrier who is responsible for reporting an incident

under the provisions of Sec. 171.16 shal] make all records

and information pertaining to the incident available to an

authorized representative or special agent of the Department

of Transportation upon request. The carrier shall give an

authorized representative or special agent of the Department

of Transportation reasonable assistance in the investigation

of the incident.

(b) If the Department of Transportation makes an inquiry

to a carrier of hazardous materials in connection with a study

of incidents, the carrier shall--

(1) Respond to the inquiry within 30 days after its receipt

or within such other time as the inquiry may specify; and

(2) Provide full, true, and correct answers to any questions

included in the inquiry.

Pennsylvania Workers’ Compensation Act Sections 414-

419, 423, 435. 77 PS. (Bisel 2005).

77 P.S. Sec. 775 (Bisel 2005).

Whenever a claim petition or other petition is presented to

the department, the department shall, by general rules or

37

special order, assign it to a referee for hearing. The

department shall serve upon each adverse party a copy of the

petition, together with a notice that such petition will be

heard by the referee to whom it has been assigned (giving his

name and address) as the case may be, and shall mail the

original petition to such referee, together with copies of the

notices served upon the adverse parties.

77 P.S. Sec. 851 (Bisel 2005).

At any time before an award or disallowance of

compensation or order has been made by a referee to whom a

petition has been assigned, the department may order such

petition heard before any other referee. Unless the

department shall otherwise order, the testimony taken before

the original referee shall be considered as though taken

before the substituted referee.

77 P.S. Sec. 821 (Bisel 2005).

Within twenty days after a copy of any claim petition or other

petition has been served upon an adverse party, he may file

with the department or its workers’ compensation judge an

answer in the form prescribed by the department. Every fact

alleged in a claim petition not specifically denied by an

answer So filed by any adverse party shall be deemed to be

admitted by him. But the failure of any party or of all of them

to deny a fact alleged in any other petition shall not preclude

the workers’ compensation judge before whom the petition is

heard from requiring, of his own motion, proof of such fact.

If a party fails to file an answer and/or fails to appear in

person or by counsel at the hearing without adequate excuse,

the workers’ compensation judge hearing the petition shall

decide the matter on the basis of the petition and evidence

presented.

77 P.S. Sec. 802 (Bisel 2005).

Within fifteen days after notice that a petition has been

directed to be heard by a referee has been served upon the

adverse parties thereof, the referee shall fix a time and place

for hearing the petition. The referee shall as soon as

practicable within the limitations prescribed herein fix a time

and a place for hearing the petition and serve upon all parties

in interest a notice of the time and place of hearing, and shall

serve upon the petitioner a copy of any answer of any adverse

party. The hearing on any such petition shall be held within

thirty-five days of the filing of the petition.

77 P.S. Sec. 833 (Bisel 2005).

The referee to whom a petition is assigned for hearing, may

subpoena witnesses, order the production of books and other

wiitings, and hear evidence, shall make a record of hearings,

and shal] make, in writing and as soon as may be after the

conclusion of the hearing, such findings of fact, conclusions

of law, and award or disallowance of compensation or other

order, as the petition and answers and the evidence produced

before him and the provisions of this act shall, in his

judgment, require. The findings of fact made by a referee to

whom a petition has been assigned or any question of fact has

been referred under the provisions of section four hundred

and nineteen shall be final, unless an appeal is taken as

provided in this act.

77 P.S. Sec. 852 (Bisel 2005).

The board may remand any case involving any question of

fact arising under any appeal to a referee to hear evidence

and report to the board the testimony taken before him or

such testimony and findings of fact thereon as the board may

order. The department may refer any question of fact arising

out of any petition assigned to a referee, to any other referee

to hear evidence, and report the testimony so taken thereon to

39

the original referee.

77 P.S. Sec. 834-836 (Bisel 2005).

(a) Neither the board nor any of its members nor any

workers’ compensation judge shall be bound by the common

law or statutory rules of evidence in conducting any hearing

or investigation, but all findings of fact shall be based upon

sufficient competent evidence to justify same. All parties to

an adjudicatory proceeding are entitled to a reasoned decision

containing findings of fact and conclusions of Jaw based

upon the evidence as a whoie which clearly and concisely

states and exp!ains the rationale for the decisions so that all

can determine why and how a particular result was reached.

The workers’ compensation judge shall specify the evidence

upon which the workers’ compensation judge relies and state

the reasons for accepting it in conformity with this section.

When faced with conflicting evidence, the workers’

compensation judge must adequately explain the reasons for

rejecting or discrediting competent evidence. Uncontroverted

evidence may not be rejected for no reason or for an

irrational reason; the workers’ compensation judge must

identify that evidence and explain adequately the reasons for

its reyection. The adjudication shall provide the basis for

meaningful appellate review.

(b) If any party or witness resides outside of the

Commonwealth, or through illness or other cause is unable to

testify before the board or a workers’ compensation judge,

his or her testimony or deposition may be taken, within or

without this Commonwealth, in such manner and in such

form as the department may, by special order or general rule,

prescribe. The records kept by a hospital of the medical or

surgical treatment given to an employe in such hospital shall

be admissible as evidence of the medical and surgical matters

stated therein.

(c) Where any claim for compensation at issue before a

workers’ compensation judge involves fifty-two weeks or

less of disability, either the employe or the employer may

40

submit a certificate by any health care provider as to the

history, examination, treatment, diagnosis, cause of the

condition and extent ui disability, if any, sworn reports by

other witnesses as to any other facts and such statements

shall be admissible as evidence of medical and surgical or

other matters therein stated and findings of fact may be based

upon such certificates or such reports. Where any claim for

compensation at issue before a workers’ compensation judge

exceeds fifty-two weeks of disability, a medical report shall

be admissible as evidence unless the party that the report is

offered against objects to its admission.

(d) Where an employer shall have furnished surgical and

medical services or hospitalization in accordance with the

provisions of section 306(f.1), or where the employe has

himself procured them, the employer or employe shall, upon

request, in any pending proceeding, be furnished with, or

have made available, a true and complete record of the

medical and surgical services and hospital treatment,

including X rays, laboratory tests, and all other medical and

surgical data in the possession or under the control of the

party requested to furnish or make available such data.

(e) The department may adopt rules and regulations

governing the conduct of all hearings held pursuant to any

provisions of this act, and hearings shall be conducted in

accordance therewith, and in such manner as best to ascertain

the substantial rights of the parties.

77 P.S. Sec. 853 (Bisel 2005).

(a) Any party in interest may, within twenty days after notice

of a workers’ compensation judge adjudication shall have

been served upon him, take an appeal to the board on the

ground: (1) that the adjudication is not in conformity with the

terms of this act, or that the workers’ compensation judge

committed any other error of law; (2) that the findings of fact

and adjudication was unwarranted by sufficient, competent

evidence or was procured by fraud, coercion, or other

improper conduct of any party in interest. The board may,

upon cause shown, extend the time provided in this article for

taking such appeal or for the filing of an answer or other

pleading.

77 P.S. Sec. 991 (Bisel 2005).

(a) The department shall establish and promulgate rules and

regulations consistent with this act, which are reasonably

calculated to:

(i) expedite the reporting and processing injury cases,

(ii) insure full payment of compensation when due,

(iii) expedite the hearing and determination of claims for

compensation and petitions filed with the department under

this act,

(iv) provide the disabled employe or his dependents with

uumely notice and information of his or their rights under this

act,

(v) explain and enforce the provisions of this act.

(b) If it appears that there has not been compliance with this

act or rules and regulations promulgated thereunder the

department may, on its own motion give notice to any

persons involved in such apparent noncompliance and

schedule a hearing for the purpose of determining whether

there has been compliance. The notice of hearing shall

contain a statement of the matter to be considered.

(c) The board shal! establish rules of procedure, consistent

with this act, which are reasonably calculated to expedite the

hearing and determination of appeals to the board and to

insure full payment of compensation when due.

(d) The department, the board, or any court which may hear

any proceedings brought under this act shall have the power

to impose penalties as provided herein for violations of the

provisions of this act or such rules and regulations or rules of

procedure:

(i) Employers and insurers may be penalized a sum

not exceeding ten per centum of the amount awarded

and interest accrued and payable: Provided, however,

That such penalty may be increased to fifty per

centum in cases of unreasonable or excessive delays.

-. Such penalty shall be payable to the same persons to

whom the compensation is payable.

(ii) Any penalty or interest provided for anywhere in

this act shall not be considered as compensation for

the purposes of any limitation on the total amount of

compensation payable which is set forth in this act.

(iii) Claimants shall forfeit any interest that would

normally be payable to them with respect to any

period of unexcused delay which they have caused.

(e) The department shal] furnish to persons adversely

affected by occupational disease appropriate counseling

services, vocational rehabilitation services, and other

supportive services designed to promote employability to the

extent that such services are available and practical.

75 Pa. Cons. Stat. Ann. Section 8301-8308:

§ 8301. Legislative findings.

(a) Essential nature.--It is hereby found as a fact that

hazardous materials are essential for various industrial,

commercial and other purposes, that their transportation is a

necessary incident of their use and, therefore, that such

transportation is required for the employment and economic

prospenity of the people. It is also found as a fact that the

transportation of hazardous materials may involve risk of

injury to persons and damage to property and that the degree

of the risk can and should be kept at a minimum consistent

43

with technical feasibility and economic reasonabieness.

(b) Balance of interests.--The purpose of this chapter and the

primary standard by which it shall be administered is to so

regulate the transportation of hazardous materials and assure

compliance with the regulations promulgated pursuant to this

chapter that there is established and maintained a reasonable

balance between the interests of the people in the safety of

themselves and their property, on the one hand, and the

interests of the people and their employment and economic

prosperity on the other.

§ 8302. Powers and duties of department.

The department shall have the following powers and duties:

1. Administer the hazardous materials transportation

program pursuant to this chapter.

2. Classify hazardous materials according to the nature

and degree of risk involved in their transportation and

apply separate regulations to each class.

3. Adopt regulations pertaining to methods of packing,

loading and unloading hazardous materials; to the

specifications, marking, inspection, condition and

equipment of vehicles transporting such substances;

to qualification of drivers and other matters relating to

operation of such vehicles; to routing and parking of

such vehicles, except that such regulations may not

supersede ordinances of local authorities and all other

factors which affect the nature or degree of risk

involved in transportation of hazardous materials.

4. Declare any material to be a hazardous material and

thereby subject its transportation to this chapter.

5. Issue permits and specify the terms and conditions

thereof, exempting cargo tanks used solely for

intrastate transportation and trucks used solely for the

transportation of combustible liquids from Federal

design specifications. The permits shall be issued

upon meeting testing requirements established by

department regulation and shall be valid for a period

of two years.

6. Inspect vehicles and investigate all other matters

relating to the safe transportation of hazardous

materials on any highway in this Commonwealth

including the Pennsylvania Turnpike.

7. Delegate enforcement of all or parts of these

regulations to one or more of the several departments

and commissions represented on the Hazardous

Materials Transportation Advisory Committee who

meet training criteria specified by department

regulation. Delegation shall be accomplished through

cooperative agreements and become effective upon

publication in the Pennsylvania Bulletin.

8. Enter into cooperative agreements with the Federal

Government relating to the regulation of the highway

transportation of hazardous materials.

§ 8303. Correspondence with Federal regulations.

In the case of any person who is subject to Federal

regulations pertaining to the transportation of hazardous

materials, the department's regulations shall, and in any other ~

case may, as far as practicable, correspond with such Federal

regulations. It is the purpose of this section to avoid, as far as

practicable, the imposition of conflicting regulations upon

persons who operate vehicles subject to Federal regulations,

pertaining to the transportation of hazardous materials. It is

also the purpose of this section to empower, but not require,

the department to prescribe, for persons not subject to the

Federal regulations, regulations identical with or similar to

those Federal regulations pertaining to the transportation of

hazardous materials.

§ 8304. Right of entry.

Every motor carrier shall allow any department field

investigator, member of the Pennsylvania State Police or

other person delegated enforcement authority in accordance

with section 8302(7) (relating to powers and duties of

department) to enter upon and inspect the business premises

of the motor carrier, including vehicles and other equipment

located thereon, at all reasonable times for the purpose of

determining whether the motor carrier is in compliance with

this chapter and pertinent regulations, and shall make

available to such person for inspection and copying all

accounts, books, records, memoranda, correspondence and

other documents which may reasonably relate to such

determination.

§ 8305. Injunctions and other remedies.

(a) Restraining orders.--The Attorney General, upon request

of the department or upon his own motion, may proceed in

the name of the Commonwealth, by injunction, mandamus,

quo warranto or other appropriate remedy at law or in equity,

criminal or civil, to restrain violations of the department's

hazardous materials regulations or orders or to enforce

obedience thereto.

(b) Long arm provision.-- Whenever the Attorney General

shall have reason to believe that a person has violated any

regulation or order of the department but is outside the

_ jurisdiction of this Commonwealth, the Attorney General

may petition the court for an order authorizing the seizure

and confiscation of such person's vehicles or hazardous

materials wherever and whenever they may be found in this

Commonwealth.

§ 8306. Penalties.

(a) Offenses defined.--Any person who violates any

provision of this chapter, any rule or regulation of the

department, any order of the department or any condition of

any permit issued pursuant to this chapter commits a

summary offense and, upon conviction, the person shall be

subject to a fine of not less than $50 nor more than $1,000 for

each separate offense, and, in default of the payment of the

fine, shall be imprisoned for a period of 90 days.

(b) Willful violations.--Any person who willfully violates

any provision of this chapter, any rule or regulation of the

department, any order of the department or any condition of

any permit issued pursuant to this chapter commits a

misdemeanor of the third degree and, upon conviction, shall

be subject to a fine of not less than $1,000 nor more than

$25,000 for each separate offense or to imprisonment in the

county jail for a period of not more than one year, or both.

(c) Subsequent willful violations.--Any person who, after a

conviction of a misdemeanor for any violation within two

years as provided in this section, willfully violates any

provision of this chapter, any rule or regulation of the

department, any order of the department or any condition of

any permit issued pursuant to this chapter commits a

misdemeanor of the second degree and, upon conviction,

shall be subject to a fine of not less than $2,500 nor more

than $50,000 for each separate offense or to imprisonment

for a period of not more than two years, or both.

(d) Continuing violations.--Each day of continued violation

of any provision of this chapter, any rule or regulation of the

department, any condition of any permit or order of the

department issued pursuant to this chapter shall constitute a

separate offense.

(e) Jurisdiction.--All summary proceedings under the

provisions of this chapter may be brought before any district

justice of the county where the offense occurred or in the

county where the public is affected, and to that end

jurisdiction is hereby conferred upon the district justices,

subject to appeal by either party in the manner provided by

law for appeals from summary convictions. It shal] be the

duty of the district attorney of the county to represent the

interests of the Commonwealth.

(f) Shipping documents.--A properly prepared shipping

document shall be prima facie evidence of the contents of a

vehicle carrying hazardous materials.

§ 8307. Hazardous Materials Transportation Advisory

47

Committee.

(a) Membership.--There shall be a Hazardous Materials

Transportation Advisory Committee appointed by the

secretary. The committee shal] be composed of an authorized

representative from the Department of Transportation, who

shall chair the committee, the Office of Attorney General, the

Department of Health, the Department of Environmental

Resources, the Pennsylvania State Police, the Pennsylvania

Emergency Management Agency and the Pennsylvania

Public Utility Commission and representatives of the

hazardous materials industry and the public as follows:

A manufacturer or shipper.

A consignee or user.

A common carrier.

A private carrier.

A representative of the fire services.

A representative of the emergency medical services.

A representative with highway safety experience.

A member from the general public.

Others deemed appropriate by the secretary.

(b) Duties. --The committee may review all regulations and

advise the department on all matters concerning the highway

transportation of hazardous materials.

FSP ee

§ 8308. Report to the General Assembly.

Within one year of the effective date of this chapter, the

secretary shall cause to be filed in the offices of the Secretary

of the Senate and the Chief Clerk of the House of

Representatives a report explaining the department's efforts

to:

1. Appoint all members of the Hazardous Materials

Transportation Advisory Committee representing

private interests and the public.

2. Conduct terminal inspections and road checks in a

uniform manner across this Commonwealth.

3. Utilize Federal funds to the fullest extent practicable.

48

4. Coordinate inspections with the United States Office

of Motor Carrier Safety.