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Occupational Disease and Workers’ Compensation in Pennsylvania

A claimant who can prove that a workplace caused him or her to acquire an occupational disease may be eligible for workers’ compensation in Pennsylvania. In a recent case, a woman petitioned the court for review of the Pennsylvania Workers’ Compensation Appeal Board’s affirmation of a judge’s decision denying her claim petition and fatal claim petition. The woman was the widow of someone who she claimed died due to an occupational disease. He had been employed as a mechanic at a paper mill.

While employed at the mill between 1995-2005, he was exposed to asbestos. He was admitted to the ER with major pain in 2007. He was diagnosed with colon cancer at age 60. He started chemotherapy but died of colon cancer about two years later. His wife filed a claim petition seeking lifetime workers’ compensation benefits and a fatal claim petition seeking widows’ benefits claiming the decedent had been injured by metastatic colon cancer. She claimed the last date of exposure for the occupational disease was in July 2007.

The employer denied the allegations. A workers’ compensation judge heard the matter. The claimant presented deposition testimony from her husband’s former coworker and testimony from a doctor. The employer presented her deposition testimony, testimony from its environmental manager and testimony from a doctor.

Among other things, the claimant had testified that the decedent was a smoker until 20 years before he died and that he didn’t have a family history of cancer. The environmental manager had testified that he worked with the decedent. He testified that though the plant contains asbestos an outside contractor routinely remediated it. The employer didn’t, however, routinely perform air quality testing. The doctor retained by the wife testified that he reviewed the medical records and opined that exposure to asbestos substantially contributed to his death.

The oncologist brought forward by the employer did not believe the testimony was enough to show the decedent was exposed to asbestos. Rather he had risk factors due to diabetes, obesity, smoking, consuming fatty foods and not exercising. He opined asbestos was not a cause of colon cancer.

The judge found the claimant’s testimony and the coworker’s testimony credible. However, he rejected the claimant’s physician’s testimony as not credible, including the testimony stating that asbestos exposure was a substantial contributing factor in the decedent drying of colon cancer. He found a lack of credibility because no articles were submitted to support his claims about asbestos, there were no studies submitted to show the decedent had asbestos fibers embedded in his lungs or bowels, and he couldn’t adequately describe the mechanism by which asbestos exposure contributed to his cancer.

The judge found the employer’s oncologist credible in testifying that the asbestos exposure was not a substantial factor. He found that the deposition testimony corroborated the oncologist’s testimony and the oncologist had expertise by being board certified in internal medicine with a subspecialty of oncology. However, the judge rejected his testimony that the decedent wasn’t exposed to asbestos.

As a result, the judge concluded the claimant hadn’t met her burden of proof and dismissed the petition. The claimant appealed. The Board affirmed on the grounds that the claimant didn’t establish the colon cancer was work-related.

The claimant appealed arguing the judge had misapplied the standard of proof regarding the decedent’s asbestos exposure and had made the wrong findings about the connection between colon cancer and asbestos exposure. With regard to the first argument, she asserted she was pursuing benefits for an occupational disease and therefore it should be presumed that if the decedent was exposed to asbestos, there was a presumptive causal link to his cancer. The employer should have then rebutted that presumption.

The court disagreed, explaining she had to show the claimant had actually suffered from an occupational disease. There has been no judicial decision holding that colon cancer is an asbestos-related cancer for workers’ compensation purposes. The claimant had cited proposed Federal Regulations to show the federal government recognized colon cancer as asbestos-related cancer.

However, the proposed regulations were not reviewed or submitted by a medical expert in the instant case. Therefore, the court found she had not met her burden to prove colon cancer was caused by asbestos. Similarly, the court upheld the credibility determinations of the administrative judge.

An experienced Pennsylvania workers’ compensation attorney can evaluate the facts of your particular case if you are injured on the job. Contact the attorneys at Needle Law Firm at 570-344-1266 or via our online form for a free consultation.

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