Moretti v. Workers' Comp. Appeal Bd., No. 1452 C.D. 2013

CourtCommonwealth Court of Pennsylvania
Decision Date13 March 2014
PartiesDiana Moretti and John Moretti, dec'd, Petitioner v. Workers' Compensation Appeal Board (Kimberly Clark Corporation), Respondent
Docket NumberNo. 1452 C.D. 2013

Diana Moretti and John Moretti, dec'd, Petitioner
Workers' Compensation Appeal Board (Kimberly Clark Corporation), Respondent

No. 1452 C.D. 2013


Submitted: January 31, 2014
March 13, 2014




Diana Moretti (Claimant) and John Moretti, dec'd (Decedent), petition for review of an Order of the Workers' Compensation Appeal Board (Board) affirming the Workers' Compensation Judge's (WCJ) Decision denying Claimant's Claim Petition and Fatal Claim Petition (Petitions). On appeal, Claimant argues that the WCJ erred by applying an incorrect burden of proof and that the WCJ's findings of fact are not supported by competent evidence. Discerning no error, we affirm.

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Claimant is Decedent's widow. (WCJ Decision, Findings of Fact (FOF) ¶ 1.) Decedent was employed by Kimberly Clark Corporation (Employer) as a mechanic responsible for, inter alia, repairing paper machines at Employer's paper mill facility. (FOF ¶ 4c.) From at least 1995 to 2005, Decedent "was exposed to asbestos while performing his duties as a mechanic" for Employer. (FOF ¶ 9c.) On July 14, 2007, Claimant was admitted to the emergency room with severe pain which resulted in a diagnosis of colon cancer. (FOF ¶ 3a.) Decedent was 60 years old at the time. (FOF ¶ 3a.) Decedent began chemotherapy treatment, but he succumbed to colon cancer on May 18, 2009, at the age of 62. (FOF ¶¶ 3a, 5f.)

Claimant filed a Claim Petition seeking lifetime workers' compensation benefits and a Fatal Claim Petition seeking widow's benefits alleging that Decedent suffered an injury on July 14, 2007 in the nature of "metastatic colon cancer with metastases to the liver." (FOF ¶ 1.) Claimant alleged in the Claim Petition that the last date of exposure for an occupational disease was July 14, 2007. (FOF ¶ 1.) Employer filed answers denying the material allegations in both Petitions. (FOF ¶ 2.) Hearings before a WCJ ensued.

In support of the Petitions, Claimant presented the deposition testimony of Decedent's former co-worker, Charles Howell, and the deposition testimony of Barry L. Singer, M.D. In opposition to the Petitions, Employer presented the deposition testimony of: (1) Claimant; (2) Employer's environmental manager, Gary Baker; and (3) Alan Lippman, M.D.

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Claimant testified, in relevant part, as follows. Although Decedent had been a smoker, he stopped smoking approximately 20 years before his death. Decedent rarely drank alcohol. Decedent altered his diet in 1999 after he was diagnosed with diabetes to reduce his consumption of fried foods and to include more vegetables. Decedent walked every night and exercised for several years. Claimant and Decedent rode bicycles frequently and swam in the family pool. Decedent did not have a family history of cancer. (FOF ¶ 3.)

Howell testified, in relevant part, as follows. Howell retired from his employment with Employer after 43 years. For the last 10 to 15 years of his career, he worked as a machine tender of one of the 11 machines operating in the paper mill. Howell worked with Decedent for 25 years and knew Decedent as one of the mechanics responsible for maintaining the machines. Decedent worked on the machine that Howell operated from 1995 to 2005. Prior to 1995, Decedent would have performed his duties as a mechanic throughout the paper mill, including working on the main floor and in the basement. (FOF ¶ 4.)

With regard to Decedent's exposure to asbestos, Howell stated as follows. Decedent's "work environment contained asbestos" and Decedent "routinely came in contact with asbestos dryer felts on the machines." (FOF ¶ 4d.) Asbestos was present in all areas of the plant where Decedent worked during his entire career and the machines that Decedent worked on were covered in asbestos. "All of the pipes and wires were wrapped with asbestos" and "holes were often punched in the material" covering the pipes. (FOF ¶ 4d.) Employer began removing asbestos in 1994; however, asbestos still remained in the plant. (FOF ¶ 4d.)

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Baker, who is the manager of Employer's environmental and industrial hygiene program, testified, in relevant part, as follows. Employer's plant contains asbestos, but an outside contractor conducts onsite remediation of the asbestos. Employer does not routinely perform air quality testing and such testing is performed only after remediation has started. Although Baker knew Decedent, he did not supervise Decedent or know what his job duties entailed. Asbestos was present in Decedent's work area, but Baker could not estimate the amount of asbestos present. (FOF ¶ 6.)

Dr. Singer is board certified in internal medicine and "one third of his practice involves colon cancer." (FOF ¶ 5a.) Dr. Singer testified that he reviewed Decedent's medical records, Decedent's death certificate, journal articles, MSDS sheets, exposure information from OSHA and NIOSH, and Howell's testimony. Based upon this review, Dr. Singer opined that Decedent's "exposure to asbestos at work was a substantial contributing factor in the development of his colon cancer and death at age 62." (FOF ¶ 5f.) Dr. Singer offered the following explanation for his opinion. Decedent's only risk factors for developing colon cancer were his regular exposure to asbestos at work and his brief history of smoking. The fact that Decedent stopped smoking several years before his death significantly reduced the potential risk smoking had in the development of Decedent's colon cancer. There is no minimum amount of asbestos exposure necessary to cause cancer, "[t]here are no tests to show asbestos fiber in the colon"; and colon cancer is asymptomatic until the cancer develops. (FOF ¶ 5d.) "Journal articles provide varied results on the connection between colon cancer and asbestos exposure." (FOF ¶ 5e.)

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Dr. Lippman is board certified in the area of medical oncology and his practice is concentrated in this area. Dr. Lippman did not believe that the materials he reviewed or Howell's testimony was sufficient to show that Decedent was exposed to asbestos. Dr. Lippman opined that Decedent's risk factors for developing colon cancer were obesity, diabetes, smoking, consumption of fatty foods, and lack of exercise, but Decedent's colon cancer was most likely related to his obesity and diabetes. Dr. Lippman testified that he was "not aware of any studies, reports, or peer review articles definitively linking colon cancer with asbestos exposure" and that "[t]here [was] no proof that one causes the other." (FOF ¶ 7e.) Dr. Lippman stated that he was not familiar with the journal articles relied upon by Dr. Singer that allegedly indicated that asbestos exposure "is a significant contributing factor to the development of colon cancer." (FOF ¶ 7f.) Dr. Lippman opined that "[a]sbestos is not a cause of colon cancer," and that Decedent's alleged exposure "was not a significant contributing factor" to the development of his colon cancer because Decedent's "death was caused by metastatic cancer of the colon." (FOF ¶ 7i.)

The WCJ found the testimony of Claimant, Howell, and Baker credible. (FOF ¶¶ 8, 9, 10.) The WCJ rejected Dr. Singer's testimony as not credible, especially his testimony that Decedent's exposure to asbestos at Employer's paper mill was a substantial contributing factor in the development of Decedent's colon cancer, which led to his death. (FOF ¶ 11.) Specifically, the WCJ rejected Dr. Singer's testimony as not credible for the following reasons:

a. Although Dr. Singer claims that there are many articles to support his opinion concerning the relationship between [Decedent's] colon cancer/death and his exposure to asbestos at [Employer's]

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company, he neither specifically identified those articles nor did he provide a copy of such articles.

b. Dr. Singer admitted that he has not seen any diagnostic studies which would show that [Decedent] has asbestos fibers in his lungs or the walls of his bowels.

c. Dr. Singer failed to explain to the satisfaction of this Judge the mechanism by which [Decedent's] exposure to asbestos substantially contributed to the development of [Decedent's] colon cancer which [led] to his death.

(FOF ¶¶ 11a-c.)

With regard to Dr. Lippman's testimony, the WCJ found, as credible, the doctor's testimony that Decedent's exposure to asbestos at Employer's paper mill neither caused Decedent's colon cancer nor his death, "nor was it a substantial contributing factor in the development of [Decedent's] colon cancer which led to his death." (FOF ¶ 12.) The WCJ determined that Decedent's medical records and the medical articles Dr. Lippman reviewed, which were attached to his deposition, corroborated Dr. Lippman's credible testimony. (FOF ¶ 12.) The WCJ also cited Dr. Lippman's "expertise as a physician holding board certification in internal medicine with a subspecialty in medical oncology" as another reason the WCJ found him credible. (FOF ¶ 12.) The WCJ rejected Dr. Lippman's testimony that Decedent was not exposed to asbestos during his employment because Dr. Lippman's testimony was not consistent with Howell's...

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