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December 11, 1997


Appealed From No. A96-1695. State Agency Workers' Compensation Appeal Board.

Before: Honorable Dan Pellegrini, Judge, Honorable James R. Kelley, Judge, Honorable Emil E. Narick, Senior Judge. Opinion BY Senior Judge Narick. Judge Leadbetter did not participate in the decision in this case.

The opinion of the court was delivered by: Narick



FILED: December 11, 1997

The issue presented on appeal is whether the Workers' Compensation Appeal Board (Board) erred by finding that the Workers' Compensation Judge (WCJ) did not exceed the scope of the Board's remand order where the WCJ reversed his prior finding that William Clark (Claimant), a bread deliveryman, suffered from occupational asthma related to his exposure to grain dust.

Claimant appeals from an order of the Board that affirmed the WCJ's decision denying benefits under the Workers' Compensation Act (Act). *fn1 We reverse and remand.

On October 29, 1992, *fn2 Claimant filed a claim petition alleging that he suffered from chronic bronchial asthma, permanent lung damage, migraine headaches, blackouts, pneumonia, irregular heartbeat, and high blood pressure as a result of his employment as a bread deliveryman with Wonder Bread Company (Employer). Claimant listed July 14, 1992 as the date of his last exposure and September 22, 1992 as the date on which he gave notice of the injury to Employer. *fn3 On December 30, 1992, Employer filed an answer denying Claimant's allegations.

At a hearing before the WCJ, Claimant testified that he worked for Employer as a bread deliveryman from 1989 through July 14, 1992. As a deliveryman, Claimant testified that he was constantly exposed to black soot and yeast dust that permeated his delivery truck. Claimant further testified that his exposure to the soot and dust at work caused him to have difficulty breathing upon physical exertion, coughing spells, and bronchial asthma. Finally, Claimant testified that after leaving work on July 14, 1992, he had a blackout that caused him to have an accident. As a result, Claimant called work on July 15, 1992 and told a supervisor that he was unable to work because his doctor did not want him to drive.

Claimant also presented the deposition testimony of his treating physician, Barry Hertz, M.D. (Dr. Hertz). Dr. Hertz testified that Claimant was diagnosed with asthma in July of 1990. Claimant was hospitalized for treatment of his asthma on November 30, 1990. Dr Hertz testified that at that time he advised Claimant that Claimant's asthma was related to his work environment. Dr. Hertz further testified that Claimant's condition had stabilized since Claimant stopped working in July of 1992. Based on his treatment of Claimant, Dr. Hertz concluded that Claimant suffered from occupational asthma related to grain dust and that Claimant should not return to work as a bread deliveryman with Employer.

In opposition, Employer presented the deposition testimony of Theodore Rodman, M.D. (Dr. Rodman). Dr. Rodman examined Claimant on November 11, 1993 and ordered a battery of pulmonary function tests. Based on the examination, the pulmonary tests, a chest x-ray, and an electrocardiogram, Dr. Rodman concluded that Claimant suffered from "garden variety" atopic asthma rather than occupational asthma. Dr. Rodman also testified that Claimant should return to work as a deliveryman for Employer. If Claimant's symptoms recurred, Dr. Rodman suggested that a standard and widely recognized four step test for occupational asthma be administered. Dr. Rodman noted that such a test was not administered by Dr. Hertz in evaluating Claimant's condition.

On January 26, 1995, the WCJ issued a decision granting compensation benefits. In support of his decision, the WCJ specifically found that the testimony of Claimant and Dr. Hertz was credible and that Claimant met his burden of proving that he suffers from occupational asthma. The WCJ also found credible Dr. Rodman's testimony that Claimant suffers from asthma and that Claimant's asthma could possibly be occupational in nature. The WCJ then found that further testing, as suggested by Dr. Rodman, was necessary to determine whether Claimant suffers from occupational asthma. Despite Dr. Rodman's suggestions, the WCJ found that Claimant suffers from occupational asthma and could not return to work.

Both parties appealed. On appeal before the Board, the parties entered into a stipulation in which they requested a remand to the WCJ so that he could make necessary findings to resolve the following issues: notice, average weekly wage, rate of compensation, medical expenses, date of compensation, and litigation costs. Based on the stipulation, the Board remanded to the WCJ. On remand, Claimant submitted a Notice of Workers' Compensation Denial dated September 30, 1992, Claimant's litigation expenses, and a Statement of Wages. Employer presented no evidence.

After a review of the parties' proposed findings of fact and Conclusions of law, the WCJ dismissed Claimant's claim petition. Specifically, the WCJ found credible only a portion of the testimony of Claimant and Dr. Hertz but found all of Dr. Rodman's testimony credible. The WCJ found that Claimant left his job with Employer because of his black-out and that Claimant failed to prove that the black-out was caused by occupational substance exposure. The WCJ also found that Dr. Hertz failed to perform the proper tests to detect occupational asthma. As a result, the WCJ agreed with Dr. Rodman that Claimant suffered from atopic asthma, which was neither caused nor aggravated by his work environment. Finally, the WCJ found that even if Claimant's ...

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