              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Radnor Township                         :
                   Petitioner           :
                                        :   No. 690 C.D. 2016
            v.                          :
                                        :   Submitted: November 23, 2016
Workers’ Compensation Appeal            :
Board (Byrd),                           :
                Respondent              :



BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                      FILED: March 20, 2017



            Radnor Township (Employer) petitions for review of the April 1, 2016
order of the Workers’ Compensation Appeal Board (Board), affirming the decision
and order of the Workers’ Compensation Judge (WCJ), which granted the claim
petition of Ronald Byrd (Claimant).


                           Facts and Procedural History
            Claimant filed a claim petition on August 27, 2012, alleging that he
suffered work-related injuries on or about April 16, 2012, as a result of exposure to
organic material during his employment as a sanitation worker. Before the WCJ,
Claimant orally amended the claim petition to allege an occupational disease,
reflecting exposure at work which caused severe pulmonary impairment due to
hypersensitivity pneumonitis. (WCJ’s Decision at 3.)
             Claimant worked for over 21 years as a laborer in Employer’s Sanitation
Department, handling residential trash pick-up. In 2011, Claimant began having
breathing problems and underwent testing, blood work, and biopsies. During this
course of treatment, his symptoms only occurred while performing his job duties for
Employer. (WCJ’s Findings of Fact Nos. 3-a, 3-b.)
             On April 16, 2012, Claimant was taken off work by his physician, David
Prince, M.D., because he was experiencing shortness of breath, which Claimant
reported to his supervisor, to whom he gave a note from Dr. Prince. Claimant
attempted to return to a light-duty job with Employer in September of 2012 because
Employer told him, “if I don’t come back, I would have [been deemed to have]
abandoned my job.” (Reproduced Record (R.R.) at 74.) While working the modified
duties, Claimant continued feeling tired and short of breath, so Dr. Prince provided
Claimant with another note to take him off work due to his respiratory issues, in
September of 2012.     He has not returned to work since then. (WCJ’s Findings of
Fact Nos. 3-c, 3-d.)
             Claimant “has never been a smoker and does not have a family history of
lung maladies. He has never worked in a coal mine. He has never filed a previous
workers’ compensation claim.” (WCJ’s Findings of Fact Nos. 3-e, 7-f.)
             Claimant further testified by deposition that after he stopped working,
his condition has remained the same, and that he felt short of breath while he was
performing the light-duty job provided by Employer, and he gets short of breath as
well while walking. He testified that he never wore any respiratory protection while
working for Employer. (WCJ’s Finding of Fact No. 7.)



                                         2
              In support of his claim petition, Claimant offered reports and deposition
testimony of Dr. Prince. Board-certified in internal medicine, pulmonary medicine,
critical care medicine, and sleep medicine, Dr. Prince first commenced treatment of
Claimant on June 21, 2011. Claimant presented with shortness of breath, and a
battery of tests and biopsies ultimately demonstrated hypersensitivity lung disease.
Subsequent treatment and testing revealed diffuse interstitial lung disease with a
pathologic picture characteristic of chronic hypersensitivity pneumonitis. Updated
CT scans and pulmonary function testing provided additional evidence for the
diagnosis of chronic hypersensitivity lung disease. (WCJ’s Findings of Fact Nos. 4-a,
4-b, 5-a, 5-c.)
              Dr. Prince testified that Claimant’s hypersensitivity lung disease was
caused by exposure to organic materials absorbed from his work as a sanitation
laborer with Employer.      Specifically, Dr. Prince identified what potential organic
materials to which Claimant would have been exposed: “Molds, decaying leaves,
decaying wood chips, decaying garbage. Typically when you see—there is no doubt
that he has chronic hypersensitivity lung disease, it is an absolute fact from the lung
biopsy. It is always due to some kind of decaying material.” Dr. Prince also testified
that such exposure could not have come from home or any other possible source.
(WCJ’s Findings of Fact Nos. 4-d, 4-h, 7-a, 7-h.)
              Accordingly, Dr. Prince testified that he determined that Claimant’s lung
disease was work-related on February 23, 2012, and provided a medical note to that
effect. In his most recent assessment, Dr. Prince stated that hypersensitivity lung
disease progresses and that even with the current lack of exposure to organic
materials, the disease will be with Claimant always, progressing until he will need a
lung transplant. Claimant will always need treatment, stated Dr. Prince, and he is



                                           3
unable to work in any capacity as the result of the work-related exposure. (WCJ’s
Findings of Fact Nos. 4-e, 4-f, 6-c, 6-f, 6-g.)
                As part of its case in chief, Employer offered deposition testimony of
three supervisors, Paul Bazik, Steve McNelis, and Robert Tate. Mr. Bazik was the
Superintendent of Public Works, who confirmed Claimant’s description of his regular
job duties and said he never witnessed Claimant having any physical problems at
work. (WCJ’s Finding of Fact No. 9.)
                Mr. McNelis was the Supervisor of Employer’s Highway and Refuse
Departments, who confirmed that Claimant told him he was experiencing breathing
problems “sometime during the summer of 2012” and that Claimant “absolutely” was
a good employee. (WCJ’s Finding of Fact No. 10.)
                Mr. Tate was Employer’s Assistant Finance Director and Human
Resources Manager. He testified that during the summer of 2012, Employer explored
with Claimant a light-duty position, and that Claimant returned to work with
Employer on September 4, 2012. The position was clerical in nature, involving filing
chores. Claimant last worked that modified job on September 21, 2012, and on
September 25, 2012, Claimant provided him with an off-work note from Dr. Prince
dated September 5, 2012.            Mr. Tate testified that Employer granted Claimant’s
request for unpaid leave under the Family and Medical Leave Act1, and confirmed
that Claimant was awarded long-term disability benefits under a plan fully funded by
Employer. On or about October 5, 2012, Mr. Tate sent Claimant a letter warning him
of potential discipline if Claimant failed to engage in an “interactive dialogue” with
Employer, and Employer subsequently fired Claimant. (WCJ’s Finding of Fact No.
11.)

       1
           29 U.S.C. §§2601-2654.



                                               4
               Employer offered the testimony and reports of John Cohn, M.D. Board-
certified in internal medicine, allergy and immunology, and pulmonary medicine, Dr.
Cohn did not meet, interview, or examine Claimant, but did review medical records
of Claimant’s case, including pertinent diagnostic studies. Dr. Cohn asserted that the
biopsy results were compatible with (but not diagnostic of) hypersensitivity
pneumonitis. For him, the medical question turned on the fact that Claimant did not
improve at all once removed from the work environment. He admitted that lack of
improvement could still result in the progression of this disease, but that was not the
case with Claimant, who he believes suffered from non-work-related usual interstitial
pneumonitis, which is a disabling factor but which would not prevent Claimant from
working a light-duty office job. (WCJ’s Findings of Fact Nos. 8-f, 8-o, 8-r, 12-f, 12-
g, 12-k, 12-l, 13-b.)
               On cross-examination, Dr. Cohn agreed that not every patient afflicted
with hypersensitivity pneumonitis improves after removal from the exposures, but he
conceded that Claimant might be one of those patients. (WCJ’s Findings of Fact Nos.
8-a-c, 8-k.)
               The WCJ credited Claimant’s testimony as to job duties, exposure to
organic materials, and his symptoms and complaints.            He found Claimant’s
credibility enhanced by the fact that he was a long-time employee of Employer, with
a good reputation and a willingness to return to work to try the light-duty job. The
WCJ also believed the lay witnesses offered by Employer. (WCJ’s Findings of Fact
Nos. 14, 16-18.)
               Regarding medical evidence, the WCJ went into great detail concerning
why he found Dr. Prince more credible than Dr. Cohn, including: (1) Dr. Prince has
been engaged in active treatment of Claimant whereas Dr. Cohn had never met or



                                           5
spoken with Claimant; (2) Employer offered extensive testimony of Dr. Cohn but
declined to call as a witness a physician who had performed the first independent
medical evaluation for Employer; (3) Dr. Prince understood and explained the
gradual but progressive nature of Claimant’s chronic hypersensitivity pneumonitis;
(4) Dr. Prince understood and explained why this disease continues and worsens even
after removal from exposure; and, (5) Dr. Prince’s opinions more closely reflected the
other medical data, especially the diagnostic studies. (WCJ’s Finding of Fact No.
15.)
            After weighing the evidence, the WCJ found that Claimant had suffered
an injury on or about April 16, 2012, namely, disabling chronic hypersensitivity
pneumonitis. He found that Claimant had provided statutory notice on April 16,
2012. He further found Claimant totally disabled and not fully recovered from this
work injury, and that he had stopped working at the light-duty job on September 21,
2012, because of his ongoing disability. (WCJ’s Findings of Fact Nos. 3-c, 19-23,
32.)
            Employer appealed to the Board, arguing lack of notice, lack of
substantial evidence supporting the WCJ’s decision, that a suspension was warranted,
that the WCJ capriciously disregarded evidence, and that the WCJ failed to render a
reasoned decision.
            In an opinion and order of April 1, 2016, the Board rejected Employer’s
arguments and affirmed the WCJ’s decision and order on the following grounds: (1)
Claimant provided timely notice of the injury; (2) the WCJ’s decision was supported
by substantial, competent evidence; (3) Employer was incorrect in asserting that Dr.
Prince never said Claimant’s occupational exposure was a substantial, contributing
factor in Claimant’s disability (and incorrectly alleged as well that Dr. Prince said



                                          6
household exposures contributed to Claimant’s disease); (4) the WCJ did not err by
declining to award a suspension because he found as a matter of fact that Claimant
ceased working the light-duty job “due to his ongoing disability stemming from his
work injury” (Board op. at 9); (5) the WCJ did not act capriciously by allowing
discussion of medical reports not offered into evidence; such reports normally did
constitute hearsay, unless they are reports “upon which the expert customarily relies
in the practice of the expert’s profession,” which was the case here (Board op. at 10);
(6) the WCJ did not err in granting the claim petition because of what Employer had
styled insufficient data in the scientific literature to support the grant of benefits; and,
(7) the WCJ did offer a reasoned decision, that is, a decision which allowed for
adequate appellate review.
                Employer has filed a petition for review with this Court, reciting the
same arguments.2


                                            Discussion
                                       Notice to Employer
                Section 311 of the Workers’ Compensation Act3 (Act) reads in pertinent
part that unless an employer has knowledge of the work injury, the injured worker
must provide notice to the employer within twenty-one days after “the occurrence of
injury,” or else “no compensation shall be allowed.” Section 311 concludes, “The

       2
         Our scope of review is limited to determining whether findings of fact are supported by
substantial evidence, whether an error of law has been committed, or whether constitutional rights
have been violated. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704; Meadow
Lakes Apartments v. Workers’ Compensation Appeal Board (Spencer), 894 A.2d 214, 216 n.3 (Pa.
Cmwlth. 2006).

       3
           Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §631.



                                                  7
term ‘injury’ in this section means, in cases of occupational diseases, disability
resulting from occupational disease.”
              In Mr. Bazik’s deposition, he testified about an internal Employer form
which he completed along with Claimant to report a work injury or occupational
illness.   (Bazik deposition exhibit 1.)   The portion of the report completed by
Claimant has an illegible date but the date indicated by Mr. Bazik as responding and
completing his end of the investigation was July 23, 2012. Id. Accordingly, even if
there was no other notice by Claimant, the passage of time between April 16, 2012,
and July 23, 2012, was 98 days, well within the mandate of Section 311.
              Moreover, Claimant testified that he gave Dr. Prince’s medical note to
Mr. Bazik on April 16, 2012, Claimant’s last day of work at his regular job. While
that medical note (Claimant’s Exhibit C-1 before the WCJ) did not mention any
connection between work and Claimant’s respiratory problems, Claimant testified
credibly that he informed Mr. Bazik at that time that his condition was work-related.
Additionally, when Claimant requested leave under the Family and Medical Leave
Act on April 27, 2012, he noted that his “severe pulmonary impairment” was “likely
due to exposure to organic material. . . .” At some point in April of 2012, in fact,
Mr. Bazik testified that Claimant told him that his “doctor thinks it’s work related.”
(R.R. at 70-71, 174-75, 180, 199-201.)
              Under Section 311, where an occupational disease is alleged, “the time
for giving notice under the 120 day mandate begins to run from the time the claimant
is disabled, and also knows or should know he is disabled.”         Gaff v. Workers’
Compensation Appeal Board (Babcock and Wilcox), 592 A.2d 827, 829 (Pa. Cmwlth.
1991) (emphasis in original). Applying Gaff, this Court subsequently explained that
“because a claimant is not legally disabled for purposes of workmen’s compensation



                                           8
until the claimant suffers a loss of earning power,…the earliest date on which the
claimant could have been disabled and, hence, could have given notice of a work-
related disability was his last day of work.” Diehl v. Workmen’s Compensation
Appeal Board (Tasco Insulation, Inc.), 618 A.2d 1175, 1177 (Pa. Cmwlth. 1992).
             Both Gaff and Diehl involved injured workers who had filed lawsuits
related to asbestos exposure before they filed their workers’ compensation claims.
Their knowledge of “work-relatedness” preceded their respective last days of work,
and this Court applied Section 311 to mean that a WCJ should measure the 120 days
from the last day of work where occupational disease is at issue.
             Thus, here, the WCJ and the Board held properly that notice was timely
because it was either provided on the same day as Claimant’s last day at his regular
job, or at most, it was given eleven days later. Under any examination of the record,
Claimant’s notice was timely.


       WCJ’s Decision was Supported by Substantial Competent Evidence
             The credible testimony of Claimant and Dr. Prince constitutes
substantial evidence in support of the WCJ’s decision. Further, Employer’s argument
is belied by the detailed findings of fact outlined above, as well as the WCJ’s
thoughtful closing finding, in which he noted the “highly qualified medical experts”
on both sides in a matter that was “very serious and complicated.” (WCJ’s Finding of
Fact No. 32.)
             As the WCJ noted, both lawyers engaged in “zealous representation” in
a “very close and difficult case to decide.” Id. This resulted in a record filled with
competent evidence, lay and expert, to support the WCJ’s decision.




                                          9
             As a corollary to this argument, Employer argues that the WCJ’s failure
to identify a particular material to which Claimant was exposed and specific dates
when he was exposed, renders his findings arbitrary and capricious.         Whenever a
party makes such an allegation, the reviewing tribunal must address the allegation.
Leon E. Wintermyer, Inc., v. Workers’ Compensation Appeal Board (Marlowe), 812
A.2d 478, 487-88 (Pa. 2002).        As the Board noted in its opinion, “capricious
disregard by definition does not exist where, as here, the WCJ expressly considers
and rejects the evidence.” (Board op. at 9, n. 5.)
             Employer’s real complaint is that the WCJ weighed and rejected its
evidence.    However, the law is well settled that in a workers’ compensation
proceeding, the WCJ is the ultimate fact-finder and is the sole authority for
determining the weight and credibility of evidence. Lombardo v. Workers’
Compensation Appeal Board (Topps Company, Inc.), 698 A.2d 1378, 1381 (Pa.
Cmwlth. 1997), appeal denied, 718 A.2d 787 (Pa. 1998). In the present case, the
WCJ acted neither arbitrarily nor capriciously.


            Employer Incorrectly Characterized Dr. Prince’s Testimony
             Employer’s contention here is inaccurate at best: “Dr. Prince conceded
that the home exposure acted in concert with the work exposures, yet he never
testified whether or not the work place was a substantial contributing factor in the
contraction of the HP [hypersensitivity pneumonitis] . . .” (Employer’s brief at 29.)
             Again, Employer confuses a plethora of case law citations in its brief
with their inapplicability to the case at bar. Here, Dr. Prince testified that there were
no other causal exposures beyond the organic materials from Claimant’s work, and he




                                           10
further testified that Claimant’s disease and disability was “definitely due to work.”
(R.R. at 20, 22-24, 42.)


                     Suspension of Benefits was Inappropriate
             Employer next chastises the WCJ for not granting a suspension of
benefits effective the date Claimant commenced the light-duty job. Employer makes
serious charges that Claimant’s physician’s note was “contrived” and intentionally
“back dated,” and that the WCJ “misquotes and mischaracterizes” the evidence.
Again, none of these contentions are supported in the record.
             Employer actually purports to justify its request for a suspension of
benefits because Claimant’s “only excuse for not doing the [light-duty] job is that it
was dusty and made him feel short of breath.” (Employer’s brief at 33.) As the
Board concluded concerning this issue, “The WCJ found as fact that Claimant
stopped working in the light duty capacity due to his ongoing disability stemming
from his work injury.” (Board op. at 9.)
              This Court has held that where “the WCJ credited the testimony of
Claimant’s medical witness that Claimant’s restrictions are permanent . . . the WCJ
acted within his authority in finding that Claimant always will be subject to
restrictions with respect to her job duties,” so that suspension was not warranted.
Kmart v. Workers’ Compensation Appeal Board (Williams), 771 A.2d 82, 85-86 (Pa.
Cmwlth.), appeal denied, 788 A.2d 381 (Pa. 2001).
             Based on credible and competent evidence of Claimant’s ongoing and
progressive disability, the WCJ and Board acted appropriately in denying Employer’s
request for a suspension.




                                           11
                WCJ Properly Allowed Reference to Medical Report
               Employer next argues that the WCJ “committed legal error by relying on
properly objected to hearsay evidence to support a finding of causally related ongoing
disability. . . .” (Employer’s brief at 38.)
               Employer is referring to references to the reports of other physicians
during the testimony of Employer’s expert, Dr. Cohn. The references in Dr. Cohn’s
second deposition on August 7, 2013, consisted of questions by Claimant’s counsel
concerning Daniel DuPont, D.O., and Robert Kotloff, M.D. (Cohn 8/7/13 deposition
at 71-121 and deposition exhibits 3-6.)
               However, the WCJ never relied upon any of these hearsay reports to
render his findings of fact and conclusions of law.
               Finally, even though these hearsay reports were discussed at Dr. Cohn’s
deposition, the Board was undoubtedly correct when it held that “a medical witness
may express an opinion based in part upon medical reports that are not part of the
record, but upon which the expert customarily relies in the practice of the expert’s
profession,”     citing   Westinghouse     Electric   Corporation/CBS   v.   Workers’
Compensation Appeal Board (Burger), 838 A.2d 831, 838 (Pa. Cmwlth. 2003).
(Board op. at 10.)
               Neither the WCJ nor the Board erred because the WCJ did not rely on
any hearsay evidence to reach his decision.


    WCJ did not Err Regarding Adequate Scientific Basis for Expert’s Opinions
               Employer advances a challenge to the WCJ accepting medical testimony
and evidence that was supposedly inappropriate under Pa.R.E. (Rule) 702 and what
he called “the Frye test.” (Employer’s brief at 45-47.)



                                               12
             That court case, of course, is the basis of Rule 702, and its full title and
citation is Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Employer, however,
does not cite or discuss Frye, but instead cites Fye v. Workers’ Compensation Appeal
Board (Super Moche), 762 A.2d 428, 430 (Pa. Cmwlth. 2000), appeal denied, 775
A.2d 810 (Pa. 2001), a case which neither addresses Frye nor otherwise discusses
“the Frye test.” Nevertheless, we note that Frye offers support for admission of the
testimony of Dr. Prince, which in any event was not objected to by Employer’s
counsel before, during, or at the close of Dr. Prince’s testimony. (R.R. at 10-53.)
             Because Dr. Prince’s testimony was within the ambit of expert testimony
under Frye and Rule 702, it was properly admitted into evidence and relied upon by
the WCJ.


                                  Reasoned Decision
             Section 422(a) of the Act reads in pertinent part as follows:


             All parties to an adjudicatory proceeding are entitled to a
             reasoned decision containing findings of fact and
             conclusions of law based upon the evidence as a whole
             which clearly and concisely states and explains the rationale
             for the decision so that all can determine why and how a
             particular result was reached.
77 P.S. §834.
             Our Supreme Court has held that “a decision is ‘reasoned’ for purposes
of Section 422(a) if it allows for adequate review by the [Board] without further
elucidation and if it allows for adequate review by the appellate courts under
applicable review standards.”     Daniels v. Workers’ Compensation Appeal Board
(Tristate Transport), 828 A.2d 1043, 1052 (Pa. 2003). In the present case, the WCJ
offered detailed and incisive findings of fact concerning a case in which he had to

                                           13
ponder and weigh a complex medical problem, both in terms of diagnosis and
causation. The WCJ here provided the parties and the courts with an opportunity for
adequate review. The decision certainly was “reasoned” as required under Section
422(a).


                                    Conclusion
            Because Claimant provided Employer with timely notice of his work
injury, and the WCJ’s decision was supported by substantial evidence, was not
capricious, and was well-reasoned, the Board did not err in affirming the WCJ’s
decision.
            Accordingly, the order of the Board is affirmed.




                                         ________________________________
                                         PATRICIA A. McCULLOUGH, Judge




                                        14
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Radnor Township                        :
                  Petitioner           :
                                       :    No. 690 C.D. 2016
            v.                         :
                                       :
Workers’ Compensation Appeal           :
Board (Byrd),                          :
                Respondent             :


                                   ORDER


            AND NOW, this 20th day of March, 2017, the order of the Workers’
Compensation Appeal Board, dated April 1, 2016, is hereby affirmed.



                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge
