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City of Philadelphia v. Workers' Compensation Appeal Board (Kriebel

October 19, 2011

CITY OF PHILADELPHIA,
v.
WORKERS' COMPENSATION APPEAL BOARD (KRIEBEL), APPEAL OF: PATRICIA KRIEBEL



Appeal from the Order of the Commonwealth Court at No. 1953 CD 2008 dated August 28, 2009 reversing the decision of the Workers' Compensation Appeal Board dated September 15, 2008 at No. A07-2338

The opinion of the court was delivered by: Madame Justice Orie Melvin

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN JJ.

ARGUED: March 9, 2011

OPINION

We granted review to determine whether an opinion rendered by a medical expert is sufficient to rebut the presumption of disease causation under the Pennsylvania Workers' Compensation Act ("Act"), 77 P.S. §§ 1-1041.4; 2501--2626. For the reasons that follow, we hold that an expert's opinion does not constitute substantial competent evidence where it is based on a series of assumptions that lack the necessary factual predicate. Since the medical opinion in the instant case is based upon unfounded supposition, it is legally insufficient to overcome the presumption of disease causation. Accordingly, we reverse the order of the Commonwealth Court.

Joseph Kriebel ("Decedent") worked for the City of Philadelphia ("Employer") as a firefighter from 1974 until 2003. He died on October 25, 2004, at the age of fifty-two from liver disease caused by hepatitis C. Decedent's widow, Patricia Kriebel ("Appellant"), filed a claim petition under the Act on January 12, 2005, alleging that Decedent contracted hepatitis C in the course of his employment.*fn1 Section 108(m.1) of the Act identifies hepatitis C as an "occupational disease" among professional and volunteer firefighters. 77 P.S. § 27.1(m.1). As discussed more fully infra, section 301(e) of the Act creates a rebuttable presumption that an occupational disease is causally related to employment. 77 P.S. § 413.

On April 15, 2005, the WCJ held a hearing on the petition. Appellant sought to raise the presumption of occupational exposure through evidence that Decedent was employed as a firefighter for thirty years, was diagnosed with hepatitis C during that time,*fn2 and died from complications caused by the disease.

In support of her claim, Appellant presented the testimony of Thomas Meehan ("Meehan"), a firefighter who worked with Decedent for twenty-two years. Hearing Transcript, 4/15/05, at 12. Meehan testified that Decedent responded to fires, automobile accidents, and other emergencies where he was exposed to the blood of the victim(s). Id. at 13--16. Meehan explained that in the 1980s Employer's rescue protocol was known as the "sweep and scoop" method. Id. at 17. Under this protocol, Decedent and Meehan were to locate the victims and extricate them as quickly as possible; they were not to wait for a medical unit to arrive. Id. As a result, their uniforms were often contaminated with blood and other bodily fluids. Id. at 19. Meehan explained that the latex gloves they wore when responding to emergencies tore easily and failed to shield their wrists and forearms from contact with bodily fluid. Id. at 20--21. He further testified that he observed Decedent with torn gloves and blood on his hands. Id. at 21--22. Meehan stated that Employer did not have a defined post-contact procedure; employees who came into direct contact with blood were instructed to "just wash [it] off." Id. at 23.

Appellant also presented the deposition testimony of Victor J. Navarro, M.D., who is Board-certified in internal medicine and gastroenterology. When Dr. Navarro began treating Decedent in 2002, he had already been diagnosed with hepatitis C, which led to the development of cirrhosis. Deposition of Dr. Navarro, 3/15/2005, at 10. Dr. Navarro diagnosed Decedent with hepatocellular carcinoma, a form of liver cancer, identifying its etiology as the cirrhosis. Id. at 12. He opined that the liver disease caused Decedent's death. Id. at 18. With regard to causation, Dr. Navarro stated, "I think as a firefighter, he was exposed to hepatitis C. He acquired it. That led to liver disease, cancer and death." Id. at 19. Dr. Navarro explained the connection between hepatitis C and Decedent's occupation:

I know that in Philadelphia, from training in Philadelphia, that the firefighters were first responders for many things so they rotated on and off the emergency wagons and that hepatitis C was not uncommon in the blood supply prior to 1990, that, particularly in . [Philadelphia] where there's a high prevalence - in many sections anyway - of drug abusers and also minority populations where hepatitis C is more common that [Decedent] probably would have been exposed if he was at all exposed to blood products. So given that and the fact that the only other exposure he has is a tattoo, which the CDC [Centers for Disease Control] . does not regard as a conventional risk factor, the prevailing thought among practitioners is that people who have blood, particularly first responders, are no different than healthcare workers who are exposed through needle stick[s] or blood exposure . to me [this] is where he got his hepatitis C. Id. at 20--21.

Employer sought to rebut the presumption of disease causation with the testimony of Stephen J. Gluckman, M.D., who is Board-certified in internal medicine and infectious disease.*fn3 Dr. Gluckman agreed with Dr. Navarro's conclusion that Decedent's hepatitis C led to cirrhosis, cancer, and ultimately death.*fn4 Deposition of Dr. Gluckman, 11/15/05, at 11--12. Dr. Gluckman disagreed, however, with Dr. Navarro's identification of the source of the hepatitis. According to Dr. Gluckman, Decedent acquired hepatitis C from drug use, not occupational exposure. Id. As support for his conclusion, Dr. Gluckman cited a note in Decedent's military medical records indicating that he contracted "serum hepatitis from drug usage" in 1969.*fn5 Id. at 15. He explained that "serum" hepatitis, now known as hepatitis B, is often contracted through contaminated needles. Id. Dr. Gluckman stated that hepatitis B and C, although distinct diseases, are transmitted in a similar manner, most commonly through needle-related drug use. Id. at 19. Dr. Gluckman concluded, "[Decedent] got his hepatitis C from his drug use that was dated in 1969 and that was also a time when he [] acquired the hepatitis B or serum hepatitis."*fn6 Id. Dr. Gluckman observed that Decedent had an appropriate social history for the disease: intravenous drug use.*fn7 Id. He also explained that the timing of the development of cirrhosis was consistent with acquisition of hepatitis C in 1969 because the medical literature suggests that complications from the disease will not manifest for approximately thirty years. Id. at 21. Dr. Gluckman further opined that there were no occupational exposures that would have caused Decedent to acquire hepatitis C. Id. at 23. He explained that while Decedent encountered the blood of numerous victims, there was no indication that it penetrated his skin. Id. at 20.

On cross-examination, Dr. Gluckman admitted that the sole foundation for his causation opinion was the 1971 note in Decedent's military medical records. Id. at 26--27. He conceded that there were no medical records indicating that Decedent was treated for drug addiction. Id. at 25--26. Similarly, Dr. Gluckman acknowledged that none of Decedent's physical examinations revealed indicia of intravenous drug use. Id. In fact, he admitted that there was no mention of intravenous drug use in Decedent's medical records. Id. at 30. Dr. Gluckman further recognized that hepatitis B is commonly spread through other means, including sexual contact, and that the word "serum" does not indicate that an injection was involved. Id. at 30, 47.

Appellant submitted a letter dated December 12, 2005 from Dr. Navarro in response to Dr. Gluckman's testimony. Exhibit C-6, C.R. at 2. While acknowledging that he did not see the treatment note at issue, Dr. Navarro stated that he did not receive a history of intravenous drug use from Decedent and that there was no evidence to corroborate such a history. Dr. Navarro agreed that contaminated needles are a significant risk factor for contracting the disease. Nonetheless, he opined that Decedent's "most likely route of exposure to hepatitis C was job related." Employer presented a responsive letter from Dr. Gluckman in which he reiterated the views expressed in his testimony. Exhibit D-1, C.R. at 2.

The WCJ credited Dr. Gluckman's testimony that Decedent acquired hepatitis C through intravenous drug use as opposed to exposure to blood during his career as a firefighter. Decision, 11/1/07, C.R. at 2. He concluded that the note bore indicia of reliability because it was signed by Decedent. The WCJ also found it significant that there was no evidence of puncture wounds during Decedent's career, suggesting that his exposure to blood was limited to contact with the skin. Thus, the WCJ concluded that Employer successfully rebutted the presumption. Consequently, he denied Appellant's fatal claim petition.

Appellant appealed to the WCAB, which reversed. Opinion, 9/15/08, C.R. at 2. The WCAB concluded that the WCJ should have sustained Appellant's hearsay objection because Dr. Gluckman's conclusion was based on the causation opinion of another physician who was not subject to cross-examination. The WCAB explained that pursuant to Pennsylvania Rule of Evidence 703,*fn8 Dr. Gluckman could rely on the facts contained in the note, i.e., that Decedent had hepatitis B and used drugs, but he could not rely on the conclusion contained therein, i.e., that the hepatitis B was acquired as a result of drug use, in the absence of other contemporaneous facts or data on which he could base an independent causation opinion. In this regard, the WCAB found that Dr. Gluckman impermissibly "parroted" the opinion of another expert and failed to offer an assessment based on his own expertise and judgment. See Gustison v. Ted Smith Floor Products, 679 A.2d 1304 (Pa. Super. 1996). The WCAB further held that Dr. Gluckman impermissibly assumed, based on the coexisting factors of drug use and hepatitis B, that Decedent used needle-based drugs when there was no evidence of record to substantiate the finding. Thus, it concluded that Dr. Gluckman's testimony did not constitute competent evidence because it lacked a sufficient factual predicate. Accordingly, the WCAB held that Employer did not proffer evidence sufficient to rebut the presumption that Decedent contracted hepatitis C in the course of his employment. Consequently, it reversed the WCJ's decision and order.*fn9

A divided panel of the Commonwealth Court reversed. City of Philadelphia v. WCAB (Kriebel), No. 1953 C.D. 2008, unpublished memorandum (Pa. Cmwlth. filed August 28, 2009). The court concluded that Dr. Gluckman's testimony "constituted substantial, competent evidence to rebut the statutory presumption." Id. at 16. In so holding, the Commonwealth Court observed that Dr. Gluckman reviewed Decedent's entire medical history and permissibly deduced that the note concerning "serum hepatitis from drug usage" indicated that Decedent contracted hepatitis C from contaminated needles prior to his employment as a firefighter. The court found that the record substantiated Dr. Gluckman's finding that Decedent did not sustain a puncture wound in his professional capacity. Finally, the court observed that Dr. Gluckman persuasively explained that the progression of Decedent's condition mirrored the normal time frame for hepatitis C patients who subsequently develop carcinoma. According to the Commonwealth Court, Dr. Gluckman drew upon numerous factors, including his own expertise, to opine with a reasonable degree of medical certainty that Decedent's condition stemmed from intravenous drug use. Consequently, the court held that the WCAB erred in reversing the decision of the WCJ.

Senior Judge Kelley dissented, opining that Dr. Gluckman's expert opinion was not competent because it was based on the pure speculation that Decedent was an intravenous drug user who contracted hepatitis C through contaminated needles. Since there was no proof that Decedent ever used intravenous drugs aside from the medical record reference to "serum hepatitis from drug usage," Judge Kelley concluded that Dr. Gluckman impermissibly relied upon facts that were not ...


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