DiLaqua v. City of Philadelphia Fire Department

• Decision Date: 23 December 2021
• Docket Number: 1262 C.D. 2020,No. 1262 C.D. 2020
• Citation: 268 A.3d 1
• Parties: Peter DILAQUA, Petitioner v. CITY OF PHILADELPHIA FIRE DEPARTMENT (Workers’ Compensation Appeal Board), Respondent
• Court: Pennsylvania Commonwealth Court

268 A.3d 1

Peter DILAQUA, Petitioner

v.CITY OF PHILADELPHIA FIRE DEPARTMENT (Workers’ Compensation Appeal Board), Respondent

No. 1262 C.D. 2020

Commonwealth Court of Pennsylvania.

Argued November 15, 2021

Decided December 23, 2021

Tristram P. Heinz, Philadelphia, for Petitioner.

Louis J. Delucca, Philadelphia, for Respondent.

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY JUDGE COVEY

Peter DiLaqua (Claimant) petitions this Court for review of the Workers’ Compensation (WC) Appeal Board's (Board) December 16, 2020 order that reversed the WC Judge's (WCJ) decision, thereby denying Claimant's Claim Petition for WC (Claim Petition). Claimant presents two issues for this Court's review: (1) whether the Board erred by applying an incorrect burden of proof to the rebuttable presumption in Section 301(e) of the WC Act (Act)¹ (Presumption) and making findings of fact contrary to those made by the WCJ; and (2) whether the Board erred by ruling that Claimant failed to meet his burden of proving a work-related injury even without the Presumption. After review, this Court reverses and remands.

Background

The City of Philadelphia Fire Department (Employer) hired Claimant as a firefighter in 2003. After 2 years of fighting fires, Claimant spent 11 years working for Employer's Visual Communication Unit (VCU). Although Claimant's VCU duties consisted mostly of office work, he was also required to go to and photograph multiple-alarm fires, fire fatalities, and other accident scenes where he spent numerous hours directly exposed to soot and fire debris. See WCJ Finding of Fact (WCJ FOF) 6b, WCJ Dec. at 3 (Reproduced Record (R.R.) at 13a). "[Claimant's] eyes would tear and become red at the scenes. At the end of the day, his nasal mucous would be black and he coughed-up soot." Id . Over time, Claimant experienced asthma symptoms and he developed bronchitis approximately five times per year.

In August 2016, after undergoing testing, Claimant's doctor informed him that he "was suffering from RADS (Reactive Airways Dysfunction Syndrome )[,] which is a form of occupational asthma." R.R. at 91a. By August 22, 2016 letter, Claimant notified Employer of his RADS diagnosis and requested Employer to recognize his condition as a compensable work injury. See R.R. at 91a; see also WCJ FOF 6c, WCJ Dec. at 3-4 (R.R. at 13a-14a). On September 26, 2016, Employer rejected Claimant's request and issued a Notice of Denial. See R.R. at 151a-152a. Claimant continued to work for Employer until June 2018, when he left work due to an unrelated elbow injury.² See WCJ FOF 6d, WCJ Dec. at 4 (R.R. at 14a); see also R.R. at 57a-58a, 81a.

On August 23, 2018, Claimant filed the Claim Petition, therein seeking WC benefits for "[RADS,]" R.R. at 1a, caused by his exposure to smoke and toxic fumes at fire scenes from 2003 until June 2018. See R.R. at 2a-4a. Employer opposed the Claim Petition. See R.R. at 5a-10a.

The matter was assigned to a WCJ, who conducted hearings on September 20 and November 27, 2018, and May 16 and July 18, 2019. On November 14, 2019, the WCJ granted the Claim Petition for medical bills only,³ declaring that Claimant met his burden of proving that his occupation as a fireman was a substantial cause of his pulmonary condition. See WCJ Dec. at 5 (R.R. at 15a). Employer appealed to the Board. On December 16, 2020, the Board reversed the WCJ's decision, ruling that the Presumption did not apply because Claimant failed to prove income loss, and Claimant's medical evidence did not support a finding that Claimant's pulmonary condition was work-related.⁴ See Board Op. at 11 (R.R. at 34a). Claimant appealed to this Court.⁵

Discussion

Pursuant to Section 301(c)(1) of the Act, an employer is only liable to pay a claimant's medical expenses that arise from and are caused by a work-related injury. [See ] 77 P.S. § 411(1). Initially, the claimant bears the burden of establishing that an injury is work-related. Generally, a claimant satisfies h[is] burden by presenting unequivocal medical evidence that establishes a causal connection between the alleged injury and the work incident.

Roundtree v. Workers’ Comp. Appeal Bd. (City of Phila.) , 116 A.3d 140, 144 (Pa. Cmwlth. 2015) (citation omitted). Section 301(c)(2) of the Act defines injury to include an "occupational disease as defined in [S]ection 108 of th[e] [A]ct." 77 P.S. § 411(2). Section 108(o) of the Act lists among compensable occupational diseases:

Diseases of the ... lungs, resulting in either temporary or permanent total or partial disability^{[6 ]} ..., after four years or more of service in fire[ ]fighting ..., caused ... by exposure to heat, smoke, fumes or gasses, arising directly out of the employment of any such firemen.

77 P.S. § 27.1(o). This Court has explained that, "[t]o become eligible for compensation for an occupational disease under Section 108 of the Act ..., a claimant must prove a disability resulting from a disease enumerated in Section 108 [of the Act,] and that the disease arose out of and was related to the claimant's employment." Bristol Borough v. Workers’ Comp. Appeal Bd. (Burnett) , 206 A.3d 585, 605 (Pa. Cmwlth. 2019).

However, pursuant to Section 301(e) of the Act:⁷

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 [P]resumption shall not be conclusive.

77 P.S. § 413. The Pennsylvania Supreme Court has explained:

[O]nce a claimant establishes that he suffers from an enumerated occupational disease, he is entitled to the [P]resumption that the disease arose during the course of his employment. The burden then shifts to the employer to rebut the [P]resumption with substantial, competent evidence. ... "Medical evidence that relies on possibilities, or is less than positive, will not constitute legally competent evidence to establish causation." Indus [.] Recision Serv [s. ] v. W [orkers’ ] C [omp. ] A [ppeal ] B [d. ] (Farbo) , 808 A.2d 994 (Pa. Cmwlth. 2002).

City of Phila. v. Workers’ Comp. Appeal Bd. (Kriebel) , 612 Pa. 6, 29 A.3d 762, 769 (2011) (citations omitted).

Claimant argues that the Board erred by applying an incorrect burden of proof to the Presumption and making findings of fact contrary to those made by the WCJ.

The Board reversed the WCJ's decision, in part, because the WCJ applied the Presumption to Claimant's medical-only Claim Petition, reasoning:

A claimant is entitled to the [P]resumption only where the claimant has established that he contracted one of the diseases enumerated by Section 108 of the Act and that the disease has caused his disability. Repash [v. Workers’ Comp. Appeal Bd. (City of Phila.) , 961 A.2d 227 (Pa. Cmwlth. 2008) ]. ... Here, Claimant indicated that he is not alleging disability related to his pulmonary issues. In fact, Claimant conceded that he is currently disabled due to a non-work-related elbow issue and sought only medical benefits for his pulmonary problems. [(See R.R. at 41a, 56a-57a)]. Likewise, Claimant has failed to establish that his lung disease enumerated in Section 108(o) of the Act caused disability, and therefore, Claimant is not entitled to the rebuttable [P]resumption. Because he was not entitled to the rebuttable [P]resumption, and we cannot say that Claimant's pulmonary issues were obviously connected to his work as a firefighter, it was Claimant's burden to establish through unequivocal medical evidence that his pulmonary issues were caused by his occupation.

Board Op. at 9-10 (R.R. at 32a-33a).

This Court recognizes that Claimant admitted to the WCJ that he had no lost income as a result of the injury listed in the Claim Petition, see R.R. at 41a, and the WCJ specifically found that "there is no evidence that [Claimant] is suffering any loss of earnings due to this injury." WCJ FOF 11, WCJ Dec. at 6 (R.R. at 16a). This Court also acknowledges its prior holdings that disability is a condition precedent to applying the Presumption.

A claimant proceeding under Section 108(o) of the Act "must first establish that he or she is suffering from and [is] disabled by this particular occupational disease." Buchanan v. Workmen's Comp [.] Appeal B [d. ] (City of Phila [.]) , 659 A.2d 54 (Pa. Cmwlth. 1995) [.] ... Once a claimant establishes that he is suffering from and [is] disabled by the occupational disease, then the claimant is entitled to a [P]resumption that the occupational disease arose out of and in the course of his or her employment.

Rex v. Workers’ Comp. Appeal Bd. (City of Oil City) , 879 A.2d 854, 862 (Pa. Cmwlth. 2005) ; see also Buchanan ; Allingham v. Workmen's Comp. Appeal Bd. (City of Pittsburgh) , 659 A.2d 49 (Pa. Cmwlth. 1995) ; Hebden v. Workmen's Comp. Appeal Bd. (Bethenergy Mines, Inc.) , 142 Pa.Cmwlth. 176, 597 A.2d 182, 192 (1991), rev'd on other grounds , 534 Pa. 327, 632 A.2d 1302 (1993) ("A claimant who ... is entitled to the [Presumption] that the disease ‘arose out of and in the course of his employment,’ must nevertheless show that he or she was disabled (lost earning power) as a result of the disease.").

However, in City of Philadelphia v. Workers’ Compensation Appeal Board (Cospelich) , 893 A.2d 171 (Pa. Cmwlth. 2006), wherein the employer took the position the Board proffered here, this Court explained:

In [ Buchanan and Allingham ], the claimant was seeking total or partial disability benefits as a result of an occupational disease and the issues before the [C]ourt involved, inter alia , whether the claimant had met his burden of proving that he was in fact disabled by the occupational disease. Here, [the claimant] has not alleged that he is disabled, nor sought compensation benefits. Our research has not revealed any appellate decisional law holding that a claimant

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