        IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Curtiss R. Justus,                      :
                                        :
                     Petitioner         :
                                        :
             v.                         : No. 1556 C.D. 2015
                                        : Submitted: June 3, 2016
Workers’ Compensation Appeal            :
Board (Bay Valley Foods),               :
                                        :
                     Respondent         :



BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                    FILED: August 10, 2016

             Melisa Peckham-Justus (Claimant) petitions for review of the July 28,
2015 order of the Workers’ Compensation Appeal Board (Board) affirming the
March 17, 2014 decision and order of the Workers’ Compensation Judge (WCJ);
by that order, the WCJ granted a Motion to Dismiss filed by Bay Valley Foods
(Employer) and dismissed Claimant’s Fatal Claim Petition.        Claimant’s Fatal
Claim Petition was filed on April 22, 2013, and alleged that Claimant’s husband,
Curtiss R. Justus (Decedent) died on July 20, 2012 as a result of a subarachnoid
hemorrhage that occurred while he was in the course and scope of his employment
as a first shift line mechanic with Employer. (Claimant Petition for Compensation
by Dependents of Deceased Employee, Reproduced Record (R.R.) at 4a.) For the
reasons set forth below, we affirm.
              During a hearing held on June 21, 2013 Claimant, who is a registered
nurse, testified. (June 21, 2013 Hearing Transcript (H.T.), R.R. at 61a-100a.) At a
second hearing, held on November 12, 2013, the WCJ heard oral argument
regarding the Motion to Dismiss filed by Employer, and Claimant offered a report
authored by Dr. Eric Lee Vey, M.D., a forensic pathologist. (November 12, 2013
H.T., R.R. at 101a-216a; September 24, 2013 Northwestern PA Autopsy Pathology
Services Report, R.R. at 225a-229a.)1              Also at the second hearing, Claimant
offered the testimony of Dale Robinson, an emergency management coordinator
with oversight of the HazMat team who responded at the scene; Eric Rogers, a
criminal investigator for the Pennsylvania State Police (PSP); Donald King, Jr.,
Employer’s maintenance supervisor, who was Decedent’s direct supervisor; and
Sam Reed, a maintenance technician.
                King testified that Employer produced salad dressings and barbeque
sauce, and Decedent was assigned to support Employer’s production line #3 during
times of faulty operation and to give breaks to the personnel on the line.
(November 12, 2013 H.T., R.R. at 150a-151a, 177a.)                         King stated that
approximately 50-100 feet outside the main plant building there was a water-
cooling/treatment shed that housed an evaporative cooling system used to cool a
cooking process inside the plant, with a 50-gallon tank, a pump and piping; the
system circulated cool water pumped through an evaporative cooler and fan


1
  Dr. Vey’s report was offered as prima facie evidence of Claimant’s Fatal Claim Petition.
Although a hearsay objection was sustained as to its admissibility for the case in chief, the WCJ
reviewed the report in order to address the Motion to Dismiss. (WCJ Decision and Order,
Finding of Fact (F.F.) ¶ 9, R.R. at 16a.)
                                               2
apparatus. (Id., R.R. at 151a-152a.) He testified that Decedent was assigned to
maintain the water quality in the system, which entailed testing for PH level and
adding an anti-microbial additive if necessary; he compared the task to maintaining
pool water and stated that the testing was done once a week, or more frequently
when they were using a cooking process to which the tower and water system was
applied. (Id., R.R. at 152a, 179a.) No other employees were responsible to check
the water-cooling system in the shed, and the shed was kept locked; in addition to
Decedent, keys to the shed were held by Sam Reed, Employer’s lead mechanic,
and a third key was kept in a key locker in the maintenance storeroom. (Id., R.R.
at 155a-156a.) Various anti-microbial chemicals were stored inside the shed,
including a pool chlorinator and an acidic baseline solution for calibrating the PH
meter, and there was an exhaust fan that ran continuously on a thermostat. (Id.,
R.R. at 157a, 171a.) King stated that Decedent normally either came to his office
or called him to let him know that he was going to the shed, and the door to the
shed did not have to be closed in order to complete the task; he described the door
as a standard size double door that faced away from the plant – “[a]s you’re facing
it, the left-side door being a pin-type door to where you would flip a latch on the
top and bottom of the door to lock it into place and the right-side door would
actually be the handle door to open.” (Id., R.R. at 177a-178a, 180a.)
              King testified that at approximately 1:40 p.m. on July 18, 2012 he
was in a meeting shortly after lunch when the line production supervisor
interrupted the meeting to tell him that he hadn’t seen Decedent for about 45
minutes, and to ask King if he knew where he was; King left the meeting and
returned to the production floor to start a search of the facility, attempting to reach
Decedent on his cell phone, calling two or three other mechanics, and deploying


                                          3
other personnel to check restrooms, equipment, storerooms, and the parking lot.
(Id., R.R. at 158a, 162a-163a, 167a.) He stated that he went to the cooling shed to
check there and, finding the door locked from the inside and not having a key, he
banged on the door; King called Sam Reed and directed him to find a key and open
the shed, and proceeded to the parking lot to check Decedent’s vehicle. (Id., R.R.
at 162a-163a.) King testified that while he was checking Decedent’s vehicle, Sam
Reed and another employee used a key to enter the shed and found Decedent
slumped in the corner; they immediately called 911; King acknowledged that
records showed that EMS had been dispatched at 2:16 p.m., and he estimated that
approximately ten minutes had elapsed between the time he had been notified that
Decedent was missing and the time that Decedent was found. (Id., R.R. at 172a.)
             Reed testified that he used his key to open the locked door to the shed
to find Decedent lying face down, still breathing; he and another employee pulled
him out of the building and flipped him over, noticing vomit on the floor near
where Decedent’s face had been. (Id., R.R. at 198a.) He stated that he had
observed Decedent checking the water-cooling system on previous occasions and
that the door to the shed would typically be left open. (Id.)
             Eric Rogers, a Criminal Investigative Officer with the PSP confirmed
that the paramedics transported Decedent to the hospital at 2:35 p.m., before
Rogers arrived at the scene; Rogers arrived at 4:15 p.m. and interviewed both Reed
and King, and Reed reported to him that there had been no odor coming from the
shed when they opened the doors. (Id., R.R. at 133a, 140a.) Rogers stated that
because of the size of the shed, the fact that Decedent was found with vomit
coming from his mouth, and the presence of chemicals inside the shed, he decided
to call in the HazMat team. (Id., R.R. at 143a.) Rogers interviewed the HazMat


                                          4
chemist on the scene, who reported that the shed appeared to be properly ventilated
and chemical exposure did not appear to be the cause of the incident. (Id., R.R. at
144a.) Dale Robinson, the HazMat emergency management coordinator testified
that a request had emanated from Crescent Hose Company, the first responders,
earlier in the day at around 2 p.m., with a report of a possible chlorine release, but
that the request for a HazMat team response had then been cancelled; it was only
after Rogers arrived on the scene approximately two hours later that the HazMat
team was again called to respond, to ensure that the area was safe for PSP
investigation. (Id., R.R. at 133a-144a.)
             Claimant testified that she received a phone call from Employer’s
human resources department on the day of the incident informing her that her
husband had been taken, unresponsive, to UPMC Hamot and that they thought he
may have had a stroke. (June 21, 2013 H.T., R.R. at 81a, 83a.) When Claimant
arrived at UPMC Hamot, she found her husband in the decontamination area; she
next saw him in one of the ER treatment rooms, intubated. (Id., R.R. at 84a.) She
stated that an ER physician informed her that they thought her husband had
sustained some kind of burns to his lungs, and that he would be transported by
helicopter to UPMC Mercy in Pittsburgh.           (Id.)   She drove there, arriving
approximately an hour and a half after Decedent; she was told that they were
concerned because he was not waking up and they were going to do a CT scan of
his head. (Id., R.R. at 85a.) Thereafter, however, the head nurse informed her that
Decedent had ‘coded’ enroute to the CT scan, and that he was still alive but they
did not know if he would survive through the evening.            (Id., R.R. at 86a.)
Decedent survived through the evening and the next morning, physicians of
various specialties advised Claimant that they would be looking at the best course


                                           5
of treatment, and later advised her that they would be treating Decedent for a heart
attack; Claimant testified that she became angry, and told the assembled physicians
that she was an ICU nurse, and the fact that Decedent’s pupils had gone from
normal and reactive to fixed and dilated in a span of an hour indicated to her that
Decedent had sustained a brain injury. (Id., R.R. at 87a.) At that point, Claimant
testified, Decedent was taken for another CT scan of his head; shortly thereafter,
physicians returned to tell her that her husband had sustained a global bleed
affecting his brain stem and was brain dead, and Decedent died on the following
day. (Id., R.R. at 88a.)
                 The WCJ dismissed Claimant’s Fatal Claim Petition for failure to
provide prima facie evidence that his death was work related and thus a
compensable fatal claim. Claimant appealed to the Board, which affirmed the
decision and order of the WCJ. This appeal followed.2
                  In a claim proceeding under the Workers’ Compensation Act (Act), 3
the burden is on the claimant to establish all elements necessary to an award,
including the existence of injury, disability, and its duration. Inglis House v.
Workmen’s Compensation Appeal Board (Reedy), 634 A.2d 592, 595 (Pa. 1993);
Lewis v. Workers’ Compensation Appeal Board (Andy Frain Services, Inc.), 29
A.3d 851, 861 (Pa. Cwmlth. 2011). Section 301(c) of the Act, 77 P.S. §411(1),
provides that:


2
  This Court’s review of an order of the Board is limited to determining whether the necessary
findings of fact are supported by substantial evidence, whether Board procedures were violated,
and whether constitutional rights were violated or an error of law was committed. MV
Transportation v. Workers’ Compensation Appeal Board (Harrington), 990 A.2d 118, 120 n.3
(Pa. Cmwlth. 2010).

3
    Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
                                                 6
            The terms “injury” and “personal injury,” as used in this
            act, shall be construed to mean an injury to an employee,
            regardless of his previous physical condition, arising in
            the scope of his employment and related thereto, and
            such disease or infection as naturally results from the
            injury or is aggravated, reactivated or accelerated by the
            injury; and whenever death is mentioned as a cause for
            compensation under this act, it shall only mean death
            resulting from such injury and its resultant effects, and
            occurring within three hundred weeks after the injury.

77 P.S. § 411(1). In Pawlosky v. Workers’ Compensation Appeal Board (Latrobe
Brewing Company), 525 A.2d 1204, 1209 (Pa. 1987), our Supreme Court held that
a job-related aggravation of a pre-existing disease constitutes an “injury” within
the meaning of Section 301(c)(1) of the Act. Under Section 301(c)(1), a claimant
has the burden of proving by unequivocal evidence that the injury arose in the
course of the employment and that the injury was related to that employment.
Krawchuck v. Philadelphia Electric Company, 439 A.2d 627 (Pa. 1981).
Accordingly, it is a well-established rule that unless there is an obvious causal
connection between a worker’s death and the work injury, the claimant must
present unequivocal medical evidence establishing the connection.        Dobash v.
Workers’ Compensation Appeal Board (PG Energy), 836 A.2d 1085 (Pa. Cmwlth.
2003).
             Here, there is no dispute that Decedent’s death was the result of a
subarachnoid hemorrhage (SAH) that was not causally related to his employment.
Claimant argues, instead, that Decedent sustained, in essence, an aggravation of his
SAH, as a result of Employer’s premises or the condition of his employment,
which resulted in a delay in treatment and a misdiagnosis of his condition, which
substantially contributed to his death. In dismissing the Fatal Claim Petition, the
WCJ concluded that the delay in Decedent being found inside the locked cooling

                                         7
shed and the erroneous diagnosis due to the presence of chemicals therein did not
cause an aggravation of Decedent’s non-work related condition, the SAH, which
caused his death. (WCJ Decision and Order, Conclusion of Law ¶ 4, R.R. at 17a.)
Before the Board and before this Court, Claimant argues that the WCJ erred as a
matter of law because the condition of Employer’s premises and the operation of
Employer’s business substantially contributed to Decedent’s death. Claimant
contends that (1) the condition of the premises, namely that the cooling shed where
Decedent was found was 50 to 100 feet from any other building or employee, led
to a delay in Decedent receiving treatment; and (2) bleach found in the cooling
shed, which was part of the operation of Employer’s business, led to a
misdiagnosis of Decedent’s condition, which further delayed him receiving proper
treatment for his condition. In its decision and order, the Board agreed with the
WCJ’s conclusion that there had been no aggravation of Decedent’s underlying
condition, i.e., the SAH, and further stated that a determination that his death was
causally related to his employment would be “tenuous and greatly attenuated at
best under these circumstances and cannot be considered a proximate cause of [the
SAH] or ultimate demise.” (Board’s Opinion and Order, R.R. at 40a.)
            Initially, we must state that we disagree with the Board’s
determination that the working conditions were not shown to have affected
Decedent’s diagnosis and treatment. It is clear from the record that conditions of
the workplace, and in particular the existence of chemicals in the cooling shed that
led the first responders to provide erroneous information to UPMC Hamot, could
be found to have produced a significant delay in Decedent’s receipt of proper
treatment following his SAH. However, the medical evidence presented was not
sufficient to establish within a reasonable degree of medical certainty that this


                                         8
delay contributed substantially to Decedent’s tragic death and for this reason, the
WCJ did not err in granting Employer’s Motion to Dismiss and dismissing
Claimant’s Fatal Claim Petition.
            The medical evidence consists of a report from Dr. Eric Lee Vey,
M.D., a forensic pathologist, who summarized the salient features of the case and
opined as follows:

            Curtiss Justus was pronounced dead at UPMC-Mercy
            hospital in Pittsburgh at 2:50 p.m. on July 20, 2012, as a
            consequence of a subarachnoid hemorrhage (SAH). On
            July 18, 2012, at Bay Valley Foods located in Northeast,
            PA, it was noted that Mr. Justus had been missing for
            several hours. He had last been seen at approximately
            11:30 a.m. At approximately 2:00 p.m., a search of the
            facility was conducted. Mr. Curtiss was located in the
            cooling tower shed on [the] north side of the Bay Valley
            Foods facility. Co-workers stated that they found the
            employee lying face down, in the corner of the tower
            shed, unconscious, with erratic breathing and vomit on
            his upper torso. The co-workers moved the employee
            outside of the shed and proceeded to alert emergency
            medical services.

            EMS responders arrived, and assessment of Mr. Justus at
            the scene by Franklin Fisher, Crescent Hose Co. Rescue
            Chief, disclosed that Mr. Justus was “choking and
            gagging.” The shed was known to contain bleach
            solution (i.e. sodium hypochlorite) containers and a
            container of sulfuric acid. Due to the uncertain nature of
            the incident, and that the aforementioned liquid
            chemicals were stored in the shed, the HazMat team was
            contacted and asked to respond to the scene. They did
            respond to the scene and determined the scene to be safe
            from any chemical exposure or contamination. All
            chemical containers were found to be securely capped at
            the time of arrival, and appeared to have been capped
            during the entire incident.


                                        9
In the meantime, EMS transported Mr. Justus to UPMC-
Hamot, and during transport, Mr. Justus was noted to
have an active gag reflex and was responsive to pain.
Based on the EMS report provided en route to Hamot by
the EMS crew during transport, a “code orange” (i.e.,
chemical response) was initiated by the emergency
department at UPMC-Hamot in preparation for the
arrival of Mr. Justus and the EMS crew. Upon arrival at
Hamot, Mr. Justus was admitted and processed through
the decontamination room.          He required ventilator
support, for which he was sedated with etomidate,
chemically paralyzed with succinylcholine, and
intubated. A portable chest radiograph was ordered,
showed diffuse bilateral alveolar infiltrates, and was
clinically interpreted as being a manifestation of adult
respiratory distress syndrome (ARDS). The possibility
of ARDS and the specter inhalation chemical burn
resulted in a decision to transfer Mr. Justus to the UPMC-
affiliate hospital with a greater specialization in toxic
inhalation injury, namely UPMC-Mercy, in Pittsburgh.
…No anti-hypertensive medications were administered to
Mr. Justus while at Hamot. No CT scan of the head was
performed while Mr. Justus was at Hamot.

Mr. Justus arrived at UPMC-Mercy via helicopter
ambulance transport, with an admission registration time
at that facility of 6:19 p.m. (i.e., 1819 hours) on July 18.
...Information was conveyed from the investigating
agencies in Erie (e.g. HazMat, [Pennsylvania State
Police] to the physicians at Mercy Hospital during the
evening of Mr. Justus’s admission…that no open toxic
chemicals or vapors were isolated from the cooling tower
shed…On July 19 at approximately 3:44 p.m., Mr. Justus
was finally diagnosed with a SAH following a successful
CT scan of his head…Brain death protocol was initiated
and the patient was pronounced brain dead [at] 2:50 p.m.
on July 20, 2012. The Allegheny County Office of the
Medical Examiner certified the cause of death as
“subarachnoid hemorrhage” and the manner of death as
“natural.”



                            10
             Mr. Justus’s case is representative of a spontaneous non-
             traumatic SAH, 85% of which are due to acute rupture of
             an intracranial saccular (berry) aneurysm.

(September 24, 2013 Northwestern PA Autopsy Pathology Services Report, R.R.
at 225a-229a.) In his report, Dr. Vey noted that in the setting of an SAH, timely
diagnosis is critical and only when the diagnosis is made can appropriate and
potentially life-saving treatment be initiated. (Id., R.R. at 227a.) He further stated
that delays in diagnosis and initial misdiagnosis of SAH are alarmingly common,
reported in 51% and 25% of cases, respectively. (Id., footnotes omitted.) Dr. Vey
concluded that in Petitioner’s case, “the proper diagnosis and institution of
appropriate treatment for his SAH was hampered by two temporal delays, both
stemming from his workplace circumstances. First, because the confined and
isolated workplace area in which Mr. Justus was initially stricken was in a location
apart from others, there was a delay of several hours in finding him…Second, the
presence of chemicals…where he was found…and the absence of witnesses
associated with this workplace environment, led health care providers to initially
diagnose him as a victim of chemical or toxic exposure.” (Id., R.R. at 228a.)
             In his report, Dr. Vey opined, within a reasonable degree of medical
certainty that “workplace-related delays encountered in [Decedent’s case]
substantively contributed to his poor outcome, lessened his likelihood of achieving
a more improved result, and reduced his chances of survival.”            (Id.)   This
testimony did not establish, within a reasonable degree of medical certainty, that
the delay in treatment was a substantial cause of death. Dr. Vey reported that the
medical condition that caused Decedent’s death was an SAH, which was not
related to his employment with Employer. He offered no opinion as to what
treatment would have been provided or that the delays caused a worsening of the

                                         11
SAH. Neither a poor outcome, the lessening of the likelihood of achieving a more
improved result, nor a reduction in his chances for survival rises to the level of
medical evidence to establish that Decedent would not have died as a result of the
non-work related SAH but for the delay in diagnosis and proper treatment caused
by Decedent’s work conditions. Claimant failed to establish prima facie evidence
of a compensable fatal claim; therefore, the Board did not err in its decision to
grant Employer’s Motion to Dismiss and to dismiss the Fatal Claim Petition. We
affirm.



                                   __________ ___________________________
                                   JAMES GARDNER COLINS, Senior Judge




                                       12
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Curtiss R. Justus,                     :
                                       :
                     Petitioner        :
                                       :
             v.                        : No. 1556 C.D. 2015
                                       :
Workers’ Compensation Appeal           :
Board (Bay Valley Foods),              :
                                       :
                     Respondent        :



                                  ORDER

             AND NOW, this 10th day of August, 2016, the Order of the Workers’
Compensation Appeal Board in the above-captioned matter is hereby AFFIRMED.




                                  __________ ___________________________
                                  JAMES GARDNER COLINS, Senior Judge
