              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Thomas J. Swigart,                      :
                         Petitioner     :
                   v.                   :
                                        :
Workers’ Compensation Appeal            :
Board (City of Williamsport),           :   No. 493 C.D. 2015
                        Respondent      :   Submitted: September 4, 2015



BEFORE:     HONORABLE DAN PELLEGRINI, President Judge
            HONORABLE MARY HANNAH LEAVITT, Judge
            HONORABLE ANNE E. COVEY, Judge



OPINION BY
JUDGE COVEY                                 FILED: December 23, 2015

            Thomas J. Swigart (Claimant) petitions this Court for review of the
Workers’ Compensation Appeal Board’s (Board) March 9, 2015 order affirming the
Workers’ Compensation Judge’s (WCJ) decision denying Claimant’s claim petition
(Claim Petition). Claimant presents two issues for this Court’s review: (1) whether
the City of Williamsport’s (Employer) medical testimony was incompetent because
its expert witness refused to acknowledge the occupational causal presumption; and
(2) whether the WCJ abused his discretion by not permitting the rebuttal testimony of
Claimant’s additional expert. After review, we affirm.
            On October 28, 2011, Claimant filed a Claim Petition alleging that he
developed chronic obstructive pulmonary disease (COPD) on January 21, 2011 after
more than 22 years of work as a firefighter for Employer, during which he was
exposed to smoke, fumes, heat, and gasses in times of stress and all weather
extremes. Claimant also alleged that his COPD caused him to stop working as of
August 9, 2011. By July 15, 2013 decision, the WCJ denied the Claim Petition. The
WCJ found that while Claimant has asthmatic bronchitis, that condition does not
disable him from working as a firefighter. Thus, the WCJ concluded that Claimant
does not benefit from the presumption that his lung condition is a work-related
occupational disease pursuant to Sections 301(c)(2), 301(e), and 108(o) of the
Workers’ Compensation Act (Act).1 The WCJ also concluded that Claimant did not
meet his burden of proving a work injury under Section 301(c)(1) of the Act, 77 P.S §
411(1), because his medical evidence regarding the causal relationship of his lung
condition to his firefighting was equivocal. Claimant appealed to the Board. On
March 9, 2015, the Board affirmed the WCJ’s decision. Claimant appealed to this
Court.2
              Claimant first argues that Employer’s medical testimony was
incompetent because its expert witness explicitly refused to acknowledge the
occupational causal presumption given to firefighters with a disease of the heart and
lungs. We disagree.
              Initially, Section 301(e) of the Act provides:

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

77 P.S. § 413 (emphasis added). Section 108(o) of the Act expressly states that the
term occupational disease shall include:


       1
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 411(2), 413, and 27.1(o). Section
301(e) of the Act was added by Section 3 of the Act of October 17, 1972, P.L. 930. Section 108(o)
of the Act was added by Section 1 of the Act of October 17, 1972, P.L. 930.
        2
          “Our review is limited to determining whether an error of law was committed, whether
necessary findings of fact are supported by substantial evidence and whether constitutional rights
were violated.” Williams v. Workers’ Comp. Appeal Bd. (POHL Transp.), 4 A.3d 742, 744 n.1 (Pa.
Cmwlth. 2010).
                                                2
             [d]iseases of the heart and lungs, resulting in either
             temporary or permanent total or partial disability or death,
             after four years or more of service in fire[]fighting for the
             benefit or safety of the public, caused by extreme over-
             exertion in times of stress or danger or by exposure to heat,
             smoke, fumes or gasses, arising directly out of the
             employment of any such firemen.
77 P.S. § 27.1(o).
             We recognize this Court has held that expert testimony which adamantly
rejects any causal relationship between exposure to the hazards of firefighting and
lung disease is incompetent.     Marcks v. Workmen’s Comp. Appeal Bd. (City of
Allentown, Dep’t of Pub. Safety, Bureau of Fire), 547 A.2d 460 (Pa. Cmwlth. 1988).
However,

             [t]he determination as to whether the testimony of a medical
             witness is competent is a question of law and is fully
             reviewable by this Court. Buchanan [v. Workmen’s Comp.
             Appeal Bd. (City of Phila.), 659 A.2d 54 (Pa. Cmwlth.
             1995), petition for allowance of appeal denied, . . . 668
             A.2d 1137 ([Pa.]1995).] ‘Our review must encompass the
             witness’[] entire testimony, and not merely isolated
             statements, in reaching our determination.’ Id.[] at 56
             (emphasis added); see also Kelley v. Workers’ [Comp.]
             Appeal [Bd.] (City of Wilkes-Barre), 725 A.2d 232, 235
             (Pa.Cmwlth.1999) (stating that ‘[i]n determining whether
             testimony of a medical witness is competent to rebut the
             presumption . . . , review must encompass the witness’
             testimony in toto; not mere excerpts of the medical witness’
             testimony’); City of Wilkes-Barre [v. Workmen’s Comp.
             Appeal Bd. (Zuczek),] 664 A.2d [90,] 93 ([Pa.] 1995) . . .
             (acknowledging that ‘[a]fter reviewing [the doctor’s]
             testimony in its entirety, . . . we conclude that the lower
             court disregarded significant portions of the deposition and
             that the medical testimony was competent.’).

Dillon v. Workers’ Comp. Appeal Bd., 853 A.2d 413, 418-19 (Pa. Cmwlth. 2004).
The Dillon Court concluded that if a doctor “indicates his acknowledgment that the
presumption exists; [but], he believes its use as a risk factor for [lung] disease is not



                                           3
as medically compelling[,] [t]his does not render his expert opinion incompetent.” Id.
at 419.
            Here, Daniel C. DuPont, D.O. (Dr. DuPont) testified as follows:

            Q. [Employer’s counsel] Dr. DuPont, are you familiar with
            the fact that in Pennsylvania a firefighter with more than
            four years [of] experience as a firefighter who develops
            diseases of the heart and lungs [sic] it is presumed that the
            diseases are caused by firefighting; are you familiar with
            that presumption?
            A. [Dr. DuPont] I’m familiar that there is a legal opinion
            stating that fact, yes.
            Q. Do you accept that presumption?
            A. I do not.
            Q. You reject that presumption?
            A. First off, you need to establish whether a person has
            heart or lung disease to say that they have a firefighting-
            related disease.
            Secondly, there are a host of confounding factors that on
            an individual basis will leave a clinician such as myself
            to determine what in order of priority would be causes
            of that condition.
            So if I have a firefighter who has a hundred-pack-a-year
            history of smoking and has a classic emphysema, and this
            man does not, I don’t want to confuse this, okay, I will in
            every single court under oath indicate what that individual’s
            cause of [his] impairment is. And [his] four years or more
            of firefighting will not be number one on the list. And I
            will have walls full of literature to support my opinion.
            Q. Can we agree that [Claimant] has some form of disease
            of the lungs?
            A. Yes.
            Q. Can we agree that in many cases, in general, lung
            diseases are caused by multifactorial reasons?

                                          4
               A. Yes.
               Q. There can be more than one substantial contributing
               factor to cause or to aggravate or exacerbate a lung disease;
               is that correct?
               A. So let’s pick that question apart into two answers. There
               can be certain identifiable causes of diseases and there can
               be certain, not necessarily, identical aggravators or
               exacerbaters of the condition, yes.

Reproduced Record at 114a-116a (emphasis added). Dr. DuPont did not testify that a
causal relationship does not exist between exposure to the hazards of firefighting and
lung disease. Rather, he opined that if an individual has other significant causal
factors, he will not attribute firefighting as the number one cause.3 Accordingly,

      3
          See Findings of Fact 61, 69, 71 and 77, wherein the WCJ stated:
                61. Based upon the history Dr. DuPont took from [] Claimant, the
                doctor understood: Claimant smoked cigarettes from age 18 being
                one-half to one pack per day; Claimant averaged one to two alcoholic
                drinks per day; Claimant’s grandparents suffered chronic obstructive
                lung disease and lung cancer; Claimant had been diagnosed as
                suffering obstructive sleep apnea, gastroesophageal reflux,
                depression, hypertension, and a cardiac condition, Wolff- Parkinson-
                White syndrome.
                ....
                69. When asked if the diagnosis he made was causally related to
                Claimant's firefighting activities, the doctor opined:
                     A: I think this man had pre-existing chronic bronchitis and
                     we actually had records indicating an establishment of that
                     before he was sickened with pneumonia in 2011. I believe
                     he had underlying pre-dispositions on the basis of his family
                     history, on his sleep apnea, which was diagnosed, I believe
                     in 2003, and on his gastroesophageal reflux. So I believe
                     that those were preexisting conditions.

                       I believe that the tobacco usage was one of the factors that
                      caused his condition. And I believe, as I mention in my
                      report, that there were a variety of triggers in his case that
                      could have aggravated his underlying condition, including
                      bacterial infections. . . , including the exposures to dust
                      fumes or smoke.
               ....
                                                    5
because Dr. DuPont “indicate[d] his acknowledgment that the presumption exists;
[but], he believe[d] its use as a risk factor for [lung] disease is not as medically
compelling[,] [t]his does not render his expert opinion incompetent.”                    Dillon, 853
A.2d at 419.
               Claimant next contends that the WCJ abused his discretion by not
permitting the rebuttal testimony of Claimant’s additional expert.                       Specifically,
Claimant contends that because Dr. DuPont’s diagnostic studies were not provided in
a timely manner, he should have been permitted to depose a rebuttal witness. We
disagree.
               It is well established law that “[t]he admission of evidence is a matter
within the sound discretion of the WCJ.” CVA, Inc. v. Workers’ Comp. Appeal Bd.
(Riley), 29 A.3d 1224, 1230 n.12 (Pa. Cmwlth. 2011). Further,

               [a] party wishing to present depositions for rebuttal shall
               notify the WCJ in writing within twenty-one days after the
               conduct of the hearing or deposition at which the testimony
               to be rebutted has been given. 34 Pa.[]Code § 131.63(d).
               Following a request to present rebuttal testimony, the
               testimony shall be taken no later than forty-five days after
               the conclusion of the case of the party presenting the
               testimony to be rebutted. 34 Pa.[]Code § 131.53(e).
               Nonetheless, the WCJ may, for good cause shown, waive or
               modify any provision of the Special Rules of
               Administrative Practice and Procedure Before Workers’

              71. Dr. DuPont specifically opined that [] Claimant’s firefighting
              activities, including exposure to fumes, was not the cause of his
              underlying breathing difficulties. He explained that these exposures
              were not the cause of the condition, but rather, potential triggers that
              can cause [] Claimant to have symptoms.
              ....
              77. Dr. DuPont further agreed that, in general, the cause of lung
              disease is multifactorial. However, he clearly drew a distinction
              between the causes of disease, and the triggers of symptoms.
WCJ Dec. at 8, 10, 11.



                                                 6
             Compensation Judges [i.e. Chapter 131]. 34 Pa.[]Code §
             131.3(a).

Coyne v. Workers’ Comp. Appeal Bd. (Villanova Univ.), 942 A.2d 939, 949-50 (Pa.
Cmwlth. 2008). The Coyne Court expressly held that because

             this case was pending before the WCJ for nearly a year and
             a half before [the e]mployer expressed its desire to take [the
             rebuttal] deposition[;] [t]he testimony of [the c]laimant, the
             medical experts, and numerous lay witnesses had already
             been taken[;]. . . [the e]mployer scheduled the deposition at
             issue immediately prior to what was scheduled to be the
             final hearing on this matter[;] [and i]n light of the fact that
             the WCJ has authority over what evidence is admitted, and
             in light of her charge to resolve claims in an efficient
             manner, we see no abuse of discretion in the WCJ’s
             determination to prohibit [the e]mployer from taking the
             [rebuttal] deposition . . . .

Id. at 950 (citations omitted).
             Here, Dr. DuPont’s deposition was taken on May 3, 2012, at which time
both parties were provided with medical records, including pulmonary function
studies and chest x-rays. By May 16, 2012 letter, Claimant stated he wished to leave
open the possibility for rebuttal testimony through Jonathan L. Gelfand, M.D. (Dr.
Gelfand). However, Claimant did not schedule Dr. Gelfand’s deposition until March
27, 2013. The WCJ had set the record to close on April 2, 2013. Employer objected
to the deposition on the basis that Claimant had already deposed its medical expert
Kevin W. Kist, Jr., D.O. (Dr. Kist) on February 20, 2012. In addition, Dr. Gelfand
had evaluated Claimant on June 13, 2012, and issued his report on June 25, 2012. In
response to Employer’s objection, Claimant maintained that his medical evidence
was not complete because he had not received Dr. DuPont’s diagnostic studies prior
to his deposition and addressing those records is the stated purpose for the




                                           7
deposition.4 The WCJ sustained Employer’s objection and precluded Dr. Gelfand’s
deposition.
              The Board, citing Coyne, opined:

              Given the length of the litigation and the WCJ’s
              responsibility to resolve the matter expeditiously, we cannot
              conclude that [the WCJ] abused his discretion in precluding
              Dr. Gelfand’s deposition where Claimant had already
              presented his primary medical evidence, which happened to
              be equivocal and insufficient to meet his burden, and where
              Claimant failed to schedule the deposition within a
              reasonable time after the evidence he wished to rebut had
              been presented or within a reasonable time before the
              record was set to close.

Board Dec. at 14. We discern no error in the Board’s reasoning. Accordingly, we
hold that the WCJ did not abuse his discretion in precluding Dr. Gelfand’s deposition.
              For all of the above reasons, the Board’s order is affirmed.


                                           ___________________________
                                           ANNE E. COVEY, Judge




       4
       Notably,
              at the IME [Independent Medical Evaluation] performed by Dr.
              Gelfand in June, 2012, Dr. Gelfand performed a chest x-ray and
              pulmonary function studies, the results of which were ‘normal’ and
              showed no respiratory obstruction and /or restriction. The results of
              the chest x-ray and pulmonary function studies performed by Dr.
              Gelfand are identical to the results of the chest x-ray and pulmonary
              function studies performed by Dr. DuPont. Most importantly, both
              the studies performed by Dr. Gelfand and Dr. DuPont match [the]
              pulmonary function studies performed by [C]laimant’s treating
              physician, Dr. Kist, and Dr. Kist also had the opportunity to review
              chest x-rays. (R. 61a-62a[,] 69a[,] 94a-98a).
Employer Br. at 26.
                                                8
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Thomas J. Swigart,                     :
                        Petitioner     :
                  v.                   :
                                       :
Workers’ Compensation Appeal           :
Board (City of Williamsport),          :   No. 493 C.D. 2015
                        Respondent     :



                                     ORDER

            AND NOW, this 23rd day of December, 2015, the Workers’
Compensation Appeal Board’s March 9, 2015 order is affirmed.


                                     ___________________________
                                     ANNE E. COVEY, Judge
