Submitted: October 14, 2016
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ANNE E. COVEY, Judge HONORABLE DAN PELLEGRINI,
E. COVEY, JUDGE
Clark Corporation (Employer) petitions this Court for review
of the Workers' Compensation (WC) Appeal Board's
(Board) March 30, 2016 order affirming the Workers'
Compensation Judge's (WCJ) decision granting Sharon R.
Bromley's (Claimant) Fatal Claim Petition for
Compensation by Dependents of Deceased Employees (Fatal Claim
Petition). Essentially, there are two issues before this
Court: (1) whether Claimant met her burden under Section
301(c)(1) of the WC Act (Act) of proving that her deceased
husband Donald J. Bromley's (Bromley) injury and/or death
were caused by exposure to chemicals in Employer's
workplace and, (2) whether the WCJ issued a reasoned
decision. After review, we affirm.
operates a paper manufacturing business which produces
napkins, toilet tissue and paper towels. See
Reproduced Record (R.R.) at 12a-13a. Bromley was employed as
one of Employer's Chester plant electricians from 1973 to
2005, during which time he was exposed to various chemicals
used in Employer's production. In the summer of 2005,
Bromley was diagnosed with metastatic bladder cancer which
caused his death on June 23, 2006.
August 4, 2008, Claimant filed a Claim Petition for WC (Claim
Petition), seeking lost wages from August 11, 2005 through
June 23, 2006, plus medical benefits and counsel fees arising
from Bromley's work injury, which was described as
bladder cancer, multiple pulmonary metastatis and
asbestos-related pleural plaques. See Certified
Record (C.R.) Item 4. On that same date, Claimant filed a
Fatal Claim Petition for Compensation By Dependents For Death
Resulting From Occupational Disease (Fatal OD Claim Petition)
under Section 301(c)(2) of the Act, alleging that
Bromley's death was due to an occupational disease -
metastatic bladder cancer - caused by exposure to carcinogens
during the course and scope of his employment with Employer.
See C.R. Item 1. Claimant also filed the Fatal Claim
Petition pursuant to Section 301(c)(1) of the Act seeking
widow's benefits due to Claimant's work-related death.
See C.R. Item 10. In all of the Petitions, Claimant
averred that Bromley's date of injury/last date of
employment was August 11, 2005. Employer denied the
allegations in each of Claimant's Petitions and raised
various affirmative defenses. See C.R. Items 3, 6,
hearings were held on September 17, 2008, January 7, June 1
and September 16, 2009, and January 20, April 19, July 26 and
October 25, 2010. By February 4, 2011 decision, the WCJ
granted the Fatal Claim Petition and ordered Employer to pay
Claimant benefits based upon Bromley's $1, 738.08 average
weekly wage, commencing on June 23, 2006, the date of
Bromley's death (Original Decision). The WCJ also
directed Employer to pay 10% interest on all deferred WC
payments, $3, 000.00 toward Bromley's funeral expenses,
plus litigation costs and attorney's fees. Employer
appealed to the Board which, on August 9, 2013, held that,
although the WCJ found that Bromley's death was due to
work-related exposure to carcinogens, since the WCJ did not
state whether the conclusions were made pursuant to Section
301(c)(1) or 301(c)(2) of the Act, the Board could not
determine whether substantial evidence supported the
WCJ's award. Accordingly, the Board remanded the matter
for the WCJ to specify whether he had awarded the benefits
pursuant to Section 301(c)(1) of the Act or under Section
301(c)(2) of the Act.
remand, the WCJ conducted additional hearings on March 7 and
September 10, 2014. On September 16, 2014, the WCJ reaffirmed
his Original Decision and added that "Claimant has met
the burden of proof required under Section 30(c)(1) of the
Act, with benefits to [Claimant] being appropriately granted
as entered in the [O]riginal Decision." WCJ Remand Dec.
at 3 (emphasis added). The WCJ specifically held: "The
instant matter meets the provisions of Section 301(c)(1) [of
the Act] as a repetitive/cumulative[-]type injury by way of
exposure to carcinogenic agents in the workplace over an
extended period of time resulting in bladder cancer and
death[.]" WCJ Remand Dec. at 3 (emphasis added).
Employer appealed from the WCJ's remand decision to the
Board. On March 30, 2016, the Board affirmed the WCJ's
remand decision. Employer appealed to this
Section 301(c)(1) of the Act provides, in relevant part:
The terms 'injury' and 'personal injury, ' as
used in this [A]ct, shall be construed to mean an injury to
an employe, regardless of his previous physical condition, .
. . arising in the course of his employment and related
thereto, and such disease or infection as naturally results
from the injury or is aggravated, reactivated or accelerated
by the injury; and wherever death is mentioned as a cause for
compensation under this [A]ct, it shall mean only death
resulting from such injury . . ., and occurring within three
hundred weeks after the injury.
77 P.S. § 411(1) (emphasis added). Accordingly,
"[i]n a fatal claim proceeding, the surviving family
member bears the burden of proving that the decedent
sustained an injury in the course and scope of employment and
that the decedent's death was causally related to the
work-related injury." J.D. Landscaping v.
Workers' Comp. Appeal Bd. (Heffernan), 31 A.3d 1247,
1252 (Pa. Cmwlth. 2011).
word 'injury' . . . is given no express statutory
meaning" in Section 301(c)(1) of the Act, and "does
no more than state that an injury is an injury."
Pawlosky v. Workmen's Comp. Appeal Bd., 525 A.2d
1204, 1209 (Pa. 1987). However, the term "has been
broadly defined to encompass all work-related harm including
'any hurtful or damaging effect which may be suffered by
anyone.'" Jackson Twp. Volunteer Fire Co. v.
Workmen's Comp. Appeal Bd. (Wallet), 594 A.2d 826,
828 (Pa. Cmwlth. 1991) (emphasis added) (quoting
Pawlosky, 525 A.2d at 1209). Thus, our courts have
declared that an "injury" under Section 301(c)(1)
of the Act need not arise from an accident or specific
physical bodily trauma, but can include a disease not
statutorily defined as an "occupational disease"
under Section 301(c)(2) of the Act or The Pennsylvania
Occupational Disease Act (the ODA),  that is caused by exposure
to a job-related hazard. See Pawlosky; see also
McCullough v. Xerox Corp., 581 A.2d 961 (Pa. Super.
1990); Standard PA Practice 2d (2011) §§
167:220, 167:241. Specifically, "[b]ased on [the]
Pawlosky [Court's] broad interpretation of
'injury' in [S]ection 301(c)(1) [of the Act], it is
now well settled that a claimant can establish a right to
benefits for an 'injury' in the nature of a
work-related disease[, ]" i.e., a disease as an
injury claim. Brockway Pressed Metals v.
Workers' Comp. Appeal Bd. (Holben), 948 A.2d 232,
234 (Pa. Cmwlth. 2008) (emphasis added).
Whether Claimant met her burden under Section 301(c)(1) of
argues that Claimant failed to meet her burden under Section
301(c)(1) of the Act of proving that Bromley's death was
caused by his exposure to chemicals in the workplace within
the 300 weeks preceding his death. We disagree.
support of her Fatal Claim Petition, Claimant testified that,
with the exception of a broken leg in 1964, hernia surgery in
1993 and a diabetes diagnosis approximately three years
before his death,  see R.R. at 400a, Bromley was
"very healthy" up to the time that he noticed blood
in his urine in May or June 2005. R.R. at 384a. Claimant
recounted that, because Bromley's physician thought he
had a prostate infection, Bromley was prescribed a six-week
course of Cipro. See R.R. at 407a. Bromley underwent
diagnostic testing of his bladder in June 2005, and surgery
to remove a tumor on August 11, 2005. See R.R. at
explained that Bromley served his four-year electrician
apprenticeship at Sun Ship Building and Dry Dock (Sun Ship)
in the 1960s. He worked for Scott Paper's foam division
until approximately 1971. Thereafter, he was employed at
DuPont for approximately six months. In 1973, he returned to
Scott Paper at Employer's Chester facility. See
R.R. at 362a-364a.
related that Bromley worked at Employer's plant until
August 2005, but returned to work for Employer for an
additional 40 hours in February 2006 in order to retire with
seven paid vacation weeks. See R.R. at 400a-401a.
She testified that, although she did not have first-hand
knowledge of Bromley's working conditions, she observed
that the entire time he worked for Employer, "[h]is
clothes would have little holes in them, " and "he
would have die [sic] on his hands when he came home."
R.R. at 369a. She also recalled that there regularly was
paper dust and dye on his work clothes, the latter of which
she could never get out. See R.R. at 370a-373a.
Claimant could not specify how often Bromley came home with
dye on his hands or clothes, only that "[he] went to
work, came home and sometimes he had die [sic] on it and
sometimes he did not, " but it happened frequently
enough that she just expected it. R.R. at 372a.
Claimant described that Bromley smoked for approximately one
year, but he quit in 1965 when Claimant became pregnant, and
he never smoked thereafter. See R.R. at 392a-395a.
She reported that although Bromley's father smoked at
home while Bromley was growing up, Bromley's mother
required his father to smoke outside. See R.R. at
Bonkowski (Bonkowski) testified that he has been an
electrician for Employer since 1971. See R.R. at 5a,
32a. He met Bromley during their electrician apprenticeships
at Sun Ship in the 1960s. See R.R at 46a. He related
that Bromley started the four-year program before he did, but
they overlapped three of those years, and they worked
together at Employer's facility from 1973 until Bromley
retired. See R.R. at 46a.
described that Employer's facility consists of six major
buildings housing four types of operation areas - a
powerhouse, pulp delivery, tissue mill, and
finishing/distribution - all of which he has worked in over
the years. See R.R. at 6a-7a. Bonkowski reported
that the electricians were charged with keeping the process
running so, "[i]f it was part of the process, [they]
worked on it." R.R. at 24a; see also R.R. at
stated that Employer's electricians initially worked from
a central shop and were assigned around the plant as needed,
to regularly repair and test machines, and to conduct
"capital work" like new machine wiring, lighting,
construction, clean-up, etc. R.R. at 9a. Bonkowski specified
that he and Bromley were leaders from 1993 to 1997, meaning
that they also purchased needed materials, conducted safety
meetings and created electrician job assignments.
See R.R. at 8a, 11a. Moreover, Bonkowski recalled
that when the central shop was dismantled in 1997 and the
electricians were "assigned to individual assets"
or families (i.e., given specific area assignments),
he was assigned to tissue mill 17 and Bromley was assigned to
the cogeneration facility (CCF) until 2000, when Bromley
replaced the napkins department electrician. R.R. at 8a;
see also R.R. at 29a, 32a-33a, 43a.
articulated that, as electricians who worked throughout
Employer's facility, he and Bromley came into contact
with the various chemicals used in Employer's processing.
See R.R. at 14a, 23a. He expounded:
There was [sic] chemicals that were taken away from us
because they were called -- considered hazardous. One of them
was xylene, was a cleaning solvent that was used on the
machines. We were exposed to Tap Free that was taken  away
from the mechanics [in the 1980s], because it was considered
dangerous. Tazcon (ph) was a penetrating oil that
was removed, a lot of them just disappeared. I don't know
if you can say they were removed, but I know our cleaning
tank, where we had a wash-up tank in the shop that had the
One-One-One in it, and I know that was removed.
Q. A cleaning solvent One-One-One?
A. Yeah. It had a code One-One-One on it. I don't know
what the breakdown is but that was considered bad. We were
exposed to -- I guess we were exposed to [polychlorinated
biphenyl (]PCBs[)], which were replaced, I guess, with number
10 transformer oil. PCBs that we used to check test and work
a lot with other vendors and stuff like that. I mean, even
the processes were changed, they took kerosene out of the
plant. They took formaldehyde out of the plant [in the late
1980s]. They took milk of lime, which was used for bleaching
[recycled paper], which was chlorine and lime and it was
mixed, and it was called milk of lime that was pumped out the
plant, it was a bleach plant, actually we had a bleach plant
there [until the mid-1990s]. They had chlorine tanks, tanker
trucks, train tanks, I guess you would call them. That was
full of chlorine.
Q. And you would come in contact with that as an electrician?
A. Sure, because we had to disconnect motors, replace
rotted conduits, seal tights, the pipe fighters [sic] might
be pulling a pump. So in order to get the pump out, we had to
pull the motor out to make room for the new pump [to go] in,
and the mechanics would have to draw tap the motor bases and
things like that, so yeah.
Q. And when things would either disappear or be directly
pulled, were there ever any safety meetings with management
where that would be discussed?
A. No, not really. Just went out and did your job.
Q. Is there any particular manager that would ever give you
any direction at all in safety, in dealings with these
chemicals that you recall?
A. I would say no, not really. Now, they did take asbestos
brakes out of the areas [in the early 1990s]. We did a lot of
asbestos brakes, transfer asbestos brakes, we used to take
care of the elevators. The freight elevators, they were all
asbestos brakes, and we would repair the motors in the shop
with asbestos brakes, blow out the motor and just blow them
out in the shop, and we didn't have any special HIPAA
[sic] vacuum cleaner like they have today.
R.R. at 15a-17a; see also R.R. at 19a-23a, 42a.
described that, until the xylene tank was removed from the
plant, he and Bromley came into contact with xylene when they
changed motor pumps, and when it was sprayed on felts to
clean them before starting the manufacturing process.
See R.R. at 18a. Bonkowski described that "the
fumes were so bad and they stunk so bad you'd be gagging
and coughing, you'd have to leave the area . . . ."
R.R. at 18a. He recounted that Employer eventually installed
an alarm for people to leave areas where xylene was in use.
See R.R. at 18a. He understood that xylene was
removed from the plant after the tank leaked into the well
shop and created an environmental hazard in approximately the
late 1980s or early 1990s. See R.R. at 17a, 19a,
39a-40a. Bonkowski recalled that, although he did not
actually witness Bromley with xylene on his clothes, all of
the electricians were exposed, and "[Bromley] being on
shift longer . . . was probably exposed to it more[.]"
R.R. at 19a.
also expressed that the electricians, including Bromley, were
exposed to significant amounts of industrial dyes, not only
in the large tubs, and through the dispensing hoses, but
because dye was splashed everywhere, including on motors,
walls, doors, handrails, steps, starters and the floor, and
they would touch it and kneel in it to do their work,
particularly in the CCF and napkins area. See R.R.
at 23a-27a. Bonkowski specifically recalled that silica ash
also covered every surface in the CCF, including electrical
panels, the dust system, walkways, doorways, floors and even
the road due to trucks hauling it to the landfill.
See R.R. at 28a, 35a. He also asserted that dust
from culm (i.e., cheap coal) burned at
Employer's facility was "all over the place" in
the CCF. R.R. at 29a; see also R.R. at 30a.
recounted that, during the 2½ years that he and
Bromley worked the same shift:
A. Well, we worked on brakes together, we worked on cranes
together, because we were the two electricians assigned to
the main plant. So we were exposed to asbestos dust on the
cranes, elevators, brake dust. We pulled cable and wire
through the powerhouses and through the basements, asbestos
on top of the old pipes, when you pull wire across the pipes
the insulation was junky, so as you're wiring upon wire
you're cutting into the -- sawing into the asbestos
through the old basements and stuff, the old pipe covering.
Q. Did you see any flaking or dust in that atmosphere?
Q. Where else did you work with him?
A. Well, I mean, we've been all through the bleach plant
area. I mean, we've been through -- covered all the calls
in the bleach plant, the pulp prep department, in the beaters
and allies (ph), and things like that, that's where kind
of a lot of the old pumps were resin pumps, stuff like that.
R.R. at 30a-31a.
acknowledged that, although he and Bromley worked in separate
areas between 1997 and 2000, and he did not know specifically
what day-today work Bromley did at that time, Bonkowski was
aware of the conditions Bromley was exposed to in the CCF
during that time, "because [Bonkowski had] been over
there and [the ash was] everywhere." R.R. at 35a;
see also R.R. at 34a, 36a. Bonkowski also knew that
the napkins area where Bromley worked from 2000 until 2005
was approximately 80 by 300 feet in size and contained four
machines, one of which dyed the napkins, but since dye was
splashed all over the area, Bromley would have been in
contact with it, whether he was working on the dye machine or
not. See R.R. at 44a, 52a-53a.
testified that Employer's electricians were given
plastic, accordion-type dust masks to wear, but their use was
emphasized only when employees made motor brush changes or
worked on brakes, due to carbon dust and asbestos.
See R.R. at 20a-21a. He also stated that protective
clothing and leather gloves were available to the
electricians, but that no one really pushed their use or
warned that they should not enter a dye area without them,
and when they did wear the leather gloves they would get
soaked with dye. See R.R. at 27a-28a, 41a. Although
he remembered Employer providing protective suits at some
point, he does not recollect when, and he explained that
since they were not rubber, he could not say whether they
were water, dye or ink-repellant. See R.R. at 41a.
In addition, Bonkowski recalled Employer's medical
department fit-testing and assigning respirators to the
electricians approximately every 12 to 18 months, and the
electricians undergoing pulmonary function tests every three
years as a condition of their employment. See R.R.
at 36a-37a. He pronounced that the respirators were used
primarily for ash rather than dye exposure. See R.R.
at 28a, 37a-38a, 41a.
did not believe that he and Bromley were exposed to asbestos
or other chemicals during their Sun Ship apprenticeships
because the ships were empty steel hulls, and the apprentices
were not informed that there was asbestos present.
See R.R. at 48a-49a. Employer, on the other hand,
expressly notified employees that there was asbestos at its
facility, and pipes were so marked. See R.R. at 48a.
Bonkowski represented that he did not witness Bromley smoke
during the more than 40 years that he knew him. See
R.R. at 49a-50a.
Parris (Parris) testified that he has worked for Employer as
an electrician since 1969. See R.R. at 70a. He
confirmed that electricians are responsible for handling any
electrical problem throughout Employer's facility.
See R.R. at 70a. Parris represented that he has
known Bromley since 1966, when they worked at Sun Ship
together. See R.R. at 70a, 97a. He recalled that he
and Bromley worked together for Employer from 1973 until
2006. See R.R. at 70a-71a. Parris explained that
since he worked swing-shift for the past 20 years, he and
Bromley worked together at least one-third of the time.
See R.R. at 95a-97a, 104a. Parris asserted that he
and Bromley have had essentially the same job duties, and he
observed Bromley at work. See R.R. at 71a.
described that he has been exposed to hazardous chemicals for
decades while working for Employer, including carbon dust
from cranes and motors, asbestos, xylene, bleach,
formaldehyde, and dust and liquid dyes. See R.R. at
73a-80a. He declared that he and Bromley were exposed to
carbon dust while working on cranes, brakes and motors, and
asbestos throughout the facility. Parris specifically
recalled that xylene was sprayed freely from an 1½
inch hose to clean Employer's machines, which he and
Bromley would smell and then experience headaches.
See R.R. at 75a-77a. He recounted that Employer
eventually used an alarm to warn employees to leave areas
where xylene was being sprayed. See R.R. at 75a.
Parris articulated that he and Bromley while working together
for Employer were exposed for decades to bleach liquor,
formaldehyde and asbestos. See R.R. at 76a-79a, 88a.
Parris further recollected a time when the electricians were
told not to drink water from the central shop fountain
because, although it was clean enough to use for processing,
the city water may have been mixed with chemicals and sewage.
See R.R. at 87a-88a.
industrial dye exposure, Parris testified that he and Bromley
worked together in the several areas where the dyes were
used. Parris described that powder dyes were used in the pulp
[W]e had to go in there and change the motors out . . . [and]
work on the motor starters and . . ., you go like that,
(indicating) tap something you gotta watch because [there]
would be [powder dye] dust flying, so you knew you had to be
careful when you went in there. Never wore a respirator. They
never said wear a respirator . . ., and you'd get it on
R.R. at 80a.
explained that, although the liquid dye was more contained
than the powder dye, the electricians had to work on the
pumps under the vats. See R.R. at 81a. He related
that the liquid dye was all over the machine areas and the
walls, and he and Bromley, as the young guys, were sent there
together because the older electricians avoided the messy
jobs. See R.R. at 82a-83a, 107a-108a. Parris
recalled that the electricians sometimes wore suits to keep
from dirtying their clothes, but no one ever told them not to
touch the dye. See R.R. at 81a. He maintained that
even when the motors were brought to the electricians for
service, they were covered in dye that would get on their
hands. See R.R. at 81a, 106a.
stated that the electricians were not given respirators to
work with the dyes. See R.R. at 83a, 108a. He
specified that employees were only trained to wear their
respirators in the CCF for protection from silicone.
See R.R. at 83a-84a, 108a. Parris noted that he also
used his respirator in areas like the coal yard due to the
dusty mist, but not if he was simply going there to flip a
switch. See R.R. at 84a-85a. He confirmed that the
electricians were tested and fitted for personal respirators
every three years. See R.R. at 84a.
also testified that he has worked around Employer's
asbestos-covered pipes in the fan houses, attics, ceilings
and the electrician's central shop. See R.R. at
85a. He represented that the 15 by 15 "motor rec
room" where electricians' computers have been
located for years, has the highest concentration of asbestos,
but since it is not flaking, Employer has yet to close it up.
R.R. at 86a.
confirmed that Bromley left shift work in the early 1990s,
Bromley and Bonkowski were leaders, Bromley was next assigned
to CCF, then to napkins until the equipment was sold and the
department closed down in approximately 2000 and Bromley
removed the power. See R.R. at 89a-91a, 102a-103a.
He described that, as a leader between 1993 and 1997, Bromley
did mostly office work but, he would have done whatever
electrical work was necessary when he worked overtime.
See R.R. at 91a-92a. Parris stated that Bromley
worked in napkins until the last machines were removed within
the six months before Bromley left Employer. See
R.R. at 91a, 93a-94a, 111a. Even without the napkin machines,
Bromley was exposed to the remaining dye until his last day
of work. See R.R. at 111a-112a. Parris concluded
that Bromley was exposed to all of the same contaminants that
he was exposed to over their decades of working for Employer.
See R.R. at 88a. Parris admitted that he and Bromley
smoked, but less than a pack a day, and he recalled that
Bromley quit more than 30 years earlier. See R.R. at
presented the October 19, 2009 and June 25, 2010 deposition
testimony of Barry L. Singer, M.D. (Dr. Singer). Dr. Singer
explained that his practice has focused primarily on oncology
and hematology over the past 25 years, only 2% to 3% of which
has involved bladder cancer because "[i]t's not one
of the most common cancers." R.R. at 131a; see
also R.R. at 134a. In preparation for Bromley's
evaluation, Dr. Singer reviewed Bromley's medical
records, including his chest x-rays which reflected that
Bromley had "asbestos lungs." R.R. at 141a. He also
read Claimant's, Parris' and Bonkowski's
deposition testimony, Employer's material safety data
sheets (MSDS), materials from the National Institute for
Occupational Safety and Health (NIOSH) and the International
Agency for Research on Cancer (IARC), and the independent
medical evaluation report of Employer's oncology expert
Alan J. ...