Lay Witness Testimony Enough to Support Fatal Claim Petition in PA Workers’ Compensation

When one thinks of an “injury,” typically one is imagining a sudden physical incident.  Maybe a roofer falls from a ladder.  A nurse pulls her back positioning a patient.  A machine operator catches a hand in a device.  While these are certainly injuries we see in PA workers’ compensation, not all work injuries are like these.  Some are physical, some are mental.  Also, some fall more into the category of “disease” than “injury.”  Yet, as a recent case from Commonwealth Court of Pennsylvania reminds us, all are compensable under the Pennsylvania Workers’ Compensation Act.

In Kimberly Clark Corporation  v. Workers’ Compensation Appeal Board (Bromley), the injured worker was an electrician in his employer’s plant.  He was diagnosed with metastatic bladder cancer in the Summer of 2005, and sadly passed away on June 23, 2006.  His widow (the “Claimant”) filed a Fatal Claim Petition.

In litigation before a Workers’ Compensation Judge (WCJ), Claimant presented the testimony of two coworkers of her late husband.  Both testified that the late husband had been exposed to various chemicals and substances which are known to cause cancer while doing the duties of his job.  The witnesses listed the names of many of the materials.  Claimant also presented the testimony of an oncologist, who explained that the bladder cancer developed due to the exposure to these carcinogens.

The workers’ compensation insurance carrier presented testimony of the “environmental manager” for the Employer’s plant.  Essentially, he testified that there had been some carcinogens in the plant over the years, but there would have been no harmful exposure after 1995 at the latest.  The insurance company also presented the testimony of a doctor, who believed the bladder cancer was not impacted by the exposure at work in any way.

After considering the evidence, the WCJ granted the Fatal Claim Petition.  The WCJ found the testimony of Claimant’s witnesses more credible than that of the environmental manager.  Similarly, the WCJ found Claimant’s medical expert more credible than the one offered by the insurance carrier.  The WCJ concluded that Claimant had proved that the exposure to the carcinogens at work had been a substantial contributing factor in causing the bladder cancer.  Since the death occurred within 300 weeks of the “injury,” the Fatal Claim Petition should be granted.  [The initial decision was appealed and remanded, and a revised decision was issued – this is not really relevant to our discussion though]. The final decision of the WCJ was affirmed by the Workers’ Compensation Appeal Board (WCAB).

Upon appeal to the Commonwealth Court of Pennsylvania, the decision was again affirmed.  To start, the Court, citing precedent, observed that the term “injury” encompasses “any hurtful or damaging effect which may be suffered by anyone.”  This, of course, would include a disease, such as cancer.

The Court then dealt with the contention that Claimant did not properly prove exposure through the lay witnesses.  While Claimant, herself, had no firsthand knowledge of her late husband’s exposure, she did observe him coming home with solvents and dyes on his clothes.  Further, the coworkers credibly testified that they actually saw the late husband work around the carcinogens, as they did as well.  The Court found this sufficient to prove the exposure.

Moving on to the medical evidence, the testimony of Claimant’s medical expert was based on the factual evidence, the testimony of the witnesses, and the material safety data sheets from the carcinogens.  The Court found this sufficient to support the opinion expressed by the doctor.  The doctor did specifically testify that these carcinogens can cause this type of cancer (this is an issue currently on appeal before the Supreme Court of PA in City of Philadelphia Fire Department v. Workers’ Compensation Appeal Board (Sladek)) .

Another issue addressed by the Court was whether the death took place within 300 weeks of the “injury,” as required under the Pennsylvania Workers’ Compensation Act.  Since in a repetitive or cumulative trauma case, as this would be seen, the date of the “injury” is the date of the last exposure to the harmful source, the death did take place within that period.

In the end, since the WCJ is the ultimate finder of fact, and the WCJ found the witnesses offered by Claimant to be credible, the Fatal Claim Petition was properly granted.  There is sufficient evidence to support the award of benefits.

This case is really significant for three things.  First, it is a reminder to everyone that a work injury is not always a herniated lumbar disc or a broken arm.  Sometimes it is something more subtle.  A disease, such as cancer or asthma, can be a work injury if caused or aggravated by the place of work.  Other conditions which can develop over time, like carpal tunnel syndrome or epicondylitis, can also be related to the job duties.  Secondly, too often an injured worker would fear that he or she has no case because there is not obvious, objective, proof of an exposure.  Here, the testimony of the lay witnesses was found sufficient to support the exposure.  Lastly, it is a reminder that a workers’ compensation case in Pennsylvania is almost always won or lost before the WCJ, since the WCJ is the ultimate finder of fact.  Rarely can a case be successfully appealed once it is lost before the WCJ.

This last point, of course, reinforces the need to carefully select an attorney you can trust.  Not only does our firm only have attorneys who are certified as specialists in Pennsylvania workers’ compensation law, we limit our practice to just handling PA workers’ compensation cases.  By not handling personal injury or Social Security Disability, or other legal matters, we can focus purely on the world of workers’ compensation, to help our clients’ chances of success.