            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Steven Mengini,                      :
                  Petitioner         :
                                     :
            v.                       :   No. 150 C.D. 2014
                                     :   Submitted: May 30, 2014
Workers’ Compensation Appeal         :
Board (Classic Coachwork North,      :
Inc.),                               :
                  Respondent         :


BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE MARY HANNAH LEAVITT, Judge
            HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE LEAVITT                                         FILED: August 7, 2014

            Stephen Mengini (Claimant) petitions for review of an adjudication of
the Workers’ Compensation Appeal Board (Board) denying his claim for workers’
compensation benefits. In doing so, the Board affirmed the determination of the
Workers’ Compensation Judge (WCJ) that Claimant was ineligible for benefits
because Claimant failed to prove that his disabling symptoms were caused by
exposure to chemicals at his workplace.     Claimant contends that the WCJ’s
findings regarding the cause of his condition are not supported by substantial
evidence. We affirm.
            Claimant was employed as a car painter and supervisor with Classic
Coachwork North, Inc. (Employer) for approximately 15 years prior to his last day
of work on February 19, 2010. On June 22, 2010, Claimant filed a Claim Petition
alleging that he suffered from diffuse body and joint pain, nausea, and weakness
caused by long-term chemical exposure in the course of his employment with
Employer. The matter was assigned to a WCJ who held a hearing. Both Claimant
and Employer appeared and presented evidence.
            Claimant testified that his duties included dry sanding, wet sanding,
solvent washing, and painting vehicles. Claimant worked with solvents including
wax, grease removers, silicone removers, and lacquer thinners. These solvents
contained chemicals including Toluene, Methyl, Ethyl, Ketone, and Xylene. In the
course of a typical day, Claimant’s latex gloves would frequently break down and
solvents would come into direct contact with his skin. Claimant testified that he
sometimes wore a charcoal filtered respirator while he was inside a spray booth,
but removed it as necessary to communicate with employees under his supervision.
Claimant testified that he suffers from joint problems, is short of breath, tires
quickly, and needs to use a nebulizer at night for chest congestion. He attributes
these symptoms, which came on gradually over six to ten years, to chemical
exposure in the workplace. Claimant notified Employer of his symptoms when
they became severe enough to interfere with his work, then terminated his own
employment in February 2010 after he was hospitalized for pneumonia.
Claimant’s symptoms have rendered him unable to return to work.
            Dr. Marilyn Howarth, who is board certified in internal medicine,
testified by deposition on Claimant’s behalf.     Dr. Howarth estimated that 80
percent of her practice deals with patients exposed to chemicals. Dr. Howarth first
examined Claimant on December 13, 2010, and diagnosed him with solvent-based
encephalopathy that led to chronic pain syndrome. Dr. Howarth opined that the
safety equipment used in Claimant’s workplace did not provide adequate


                                        2
protection against chemical exposure.     Specifically, Dr. Howarth testified that
Claimant’s respirator provided inadequate protection against airborne solvents in
the spray booth; Claimant could absorb solvents through his skin if there were
extended skin contact. Any solvents spilled or splashed on Claimant’s clothing
could be held in extended contact with his skin and carried home with him at the
end of the day, resulting in prolonged contact outside of the workplace. Dr.
Howarth opined that Claimant’s symptoms may be permanent effects of
overexposure to chemicals in the workplace, that Claimant is totally disabled, and
that Claimant should not return to work in his former position.
            Dr. Evelyn K. Balogun, M.D., a board certified physician in
occupational and environmental medicine, testified by deposition on Employer’s
behalf. Dr. Balogun examined Claimant on August 15, 2011, and reviewed his
medical records. Dr. Balogun found Claimant’s condition inconsistent with toxic
chemical exposure because Claimant did not report any of the toxic exposure
symptoms referenced in the AMA Guidelines for Evaluation of Disease and Injury
Causation. Those symptoms include sinus, eye, and nasal irritation, dizziness,
headaches, nausea, and cardiac arrhythmias. Claimant’s neurological examination
on August 15, 2011, was normal and Dr. Balogun did not find any neurologic
deficits that would support a diagnosis of solvent-based encephalopathy.
Reproduced Record at 113, 118 (R.R. ___). Dr. Balogun opined, in opposition to
Dr. Howarth’s diagnosis, that Claimant’s symptoms are attributable to non work-
related fibromyalgia, chronic tobacco use, and chronic prescription narcotics use,
all of which were reported in Claimant’s medical history. R.R. 94-95.
            The WCJ denied Claimant’s Claim Petition because, although
Claimant established that he was disabled and suffered from the reported


                                         3
symptoms, he failed to establish that his symptoms were caused by his exposure to
chemicals in the workplace. The WCJ noted that Dr. Howarth had provided a
thorough and complete explanation for her diagnosis, but found it was not
supported by the weight of the medical evidence. WCJ Decision, February 27,
2012 at 4-5; Finding of Fact No. 9. The WCJ found Dr. Balogun’s testimony
credible, convincing, and supported by the weight of the medical evidence. Id. at
4; Finding of Fact No. 8. Claimant appealed and the Board affirmed. Claimant
then petitioned for this Court’s review.1
              On appeal, Claimant argues that the Board erred in determining that
substantial evidence supports the WCJ’s finding that Claimant’s symptoms are not
work-related. Claimant suggests that the WCJ erred in relying on Dr. Balogun’s
testimony because she never made a diagnosis.
              A claimant seeking workers’ compensation benefits bears the burden
of proving all of the elements necessary to support an award under the Workers’
Compensation Act (Act)2.         Inglis House v. Workmen’s Compensation Appeal
Board (Reedy), 634 A.2d 592, 595 (Pa. 1993). The claimant must establish not
only that he suffered an injury, but also that the injury was suffered “in the course
of” employment and caused by his employment.                    Paper Products Co. v.




1
  Our scope of review is limited to determining whether constitutional rights were violated,
whether any errors of law were committed, or whether necessary findings of fact were
unsupported by substantial competent evidence. Scarpelli v. Workmen’s Compensation Appeal
Board (Pompey Motors/Clifford Motors), 333 A.2d 828, 830 (Pa. Cmwlth. 1975). Substantial
evidence has been defined as such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Bethenergy Mines, Inc. v. Workmen’s Compensation Appeal
Board (Skirpan), 612 A.2d 434, 436 (Pa. 1992).
2
  Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1 – 1041.4, 2501 - 2708.


                                             4
Workmen’s Compensation Appeal Board (Kirin), 448 A.2d 652, 652-53 (Pa.
Cmwlth. 1982).
              Section 301(c)(2) of the Act provides that a work injury includes an
“occupational disease as defined in Section 108 of this act.” 77 P.S. §411(2).
“Occupational disease” is a defined term in Section 108 of the Act, and includes
poisoning by certain enumerated chemicals, including toluene.                  Specifically,
Section 108 states, in relevant part, as follows:

              The term ‘occupational disease,’ as used in the act, shall mean
              only the following diseases.

              (c) Poisoning by methanol, carbon disulfide, carbon
              monoxide, hydrocarbon distillates (naphthas and others) or
              halogenated hydrocarbons, toluene diisocyanate (T.D.1.) or any
              preparations containing these chemicals or any of them, in any
              occupation involving direct contact with, handling thereof, or
              exposure thereto.

77 P.S. §27.1(c) (emphasis added).
              Once a claimant has established that he has contracted an occupational
disease, there is a presumption that the disease was caused by his employment.
Dillon v. Workers’ Compensation Appeal Board (City of Philadelphia), 853 A.2d
413, 418 (Pa. Cmwlth. 2004).           That presumption is rebuttable by substantial
competent evidence. Id. However, the claimant must first meet his burden to
prove that he has the particular occupational disease before receiving the benefit of
the presumption.3 Rex v. Workers’ Compensation Appeal Board (City of Oil City),
879 A.2d 854, 862 (Pa. Cmwlth. 2005).

3
  The Board erroneously stated that Claimant was entitled to a presumption in his favor under
Dillon. Although Claimant proved that he was exposed to toluene, he was required to prove that
exposure caused a particular occupational disease but he failed to meet that burden. The WCJ
(Footnote continued on the next page . . .)
                                              5
              The WCJ has exclusive authority to act as fact finder, determine
credibility of witnesses, and weigh the evidence. Lehigh County Vo-Tech School v.
Workmen’s Compensation Appeal Board (Wolfe), 652 A.2d 797, 800 (Pa. 1995).
The WCJ has authority to accept or reject a medical expert’s testimony in whole or
in part. Hills Department Store No. 48 v. Workmen’s Compensation Appeal Board
(McMullen), 646 A.2d 1272, 1275 (Pa. Cmwlth. 1994). If there is conflicting
medical testimony, the WCJ may accept the testimony of one medical expert over
another.    City of Wilkes-Barre v. Workmen’s Compensation Appeal Board
(Zuczek), 664 A.2d 90, 96 (Pa. 1995). The WCJ’s findings will not be disturbed if
they are supported by substantial, competent evidence. Greenwich Collieries v.
Workmen’s Compensation Appeal Board (Buck), 664 A.2d 703, 706 (Pa. Cmwlth.
1995). The court only has authority to overturn a credibility determination if it is
“arbitrary and capricious or so fundamentally dependent on a misapprehension of
material facts, or so otherwise flawed, as to render it irrational.”            Casne v.
Workers’ Compensation Appeal Board (STAT Couriers, Inc. & State Workers’
Insurance Fund), 962 A.2d 14, 19 (Pa. Cmwlth. 2008).
              Here, Claimant argues that the Board erred in holding that substantial
competent evidence supported the WCJ’s finding that Claimant did not contract an
occupational disease as a result of his exposure to chemicals in the course of his
employment. We disagree. A review for substantial evidence determines whether
the record contains relevant evidence that a reasonable mind might accept as
adequate to support a finding of fact, not whether there is evidence to support a


(continued . . .)
applied the proper standard and the Board affirmed. Thus, the Board’s statement regarding a
presumption was harmless error and is not outcome-determinative.


                                            6
different finding of fact. Dr. Balogun’s testimony, based on her own examination
and her review of Claimant’s medical history, was sufficient to support a finding
that Claimant’s symptoms were inconsistent with exposure to chemicals in the
workplace and were attributable to other causes. The Board did not err in holding
that substantial evidence supported the WCJ’s findings of fact.
              Claimant challenges Dr. Balogun’s opinion because she did not offer
her own diagnosis for Claimant’s symptoms. A WCJ’s credibility determination
may be overturned on appeal only if it is “arbitrary and capricious or so
fundamentally dependent on a misapprehension of material facts, or so otherwise
flawed, as to render it irrational.” Casne, 962 A.2d at 19. In this case, it was not
necessary for Dr. Balogun to render a “diagnosis.” The purpose of her independent
medical examination was to render an expert opinion on whether Claimant’s
symptoms were work-related, which she did. There is nothing arbitrary, capricious
or flawed about the WCJ’s finding that Dr. Balogun testified credibly. What is
more, Claimant, not Employer, had the burden of proof. Because the WCJ rejected
the opinion of Claimant’s doctor, Claimant could not prove that he suffers from an
occupational disease.       Therefore, the Board did not err in denying the claim
petition.4
              Accordingly, the order of the Board is affirmed.

                                                    ______________________________
                                                    MARY HANNAH LEAVITT, Judge


4
 Claimant also contends that the WCJ failed to issue a reasoned decision as required by Section
422(a) of the Act, 77 P.S. §834. This issue is waived because Claimant did not raise it “with any
degree of specificity in [his] appeal to the Board.” Jonathan Sheppard Stables v. Workers’
Compensation Appeal Board (Wyatt), 739 A.2d 1084, 1089 (Pa. Cmwlth. 1999). Further, were
we to address the issue, we would hold that the WCJ’s decision is reasoned.


                                               7
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Steven Mengini,                    :
                  Petitioner       :
                                   :
           v.                      :   No. 150 C.D. 2014
                                   :
Workers’ Compensation Appeal       :
Board (Classic Coachwork North,    :
Inc.),                             :
                  Respondent       :


                                  ORDER

           AND NOW, this 7th day of August, 2014, the order of the Workers’
Compensation Appeal Board dated December 31, 2013, is hereby AFFIRMED.


                                         ______________________________
                                         MARY HANNAH LEAVITT, Judge
