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Kimberly Clark Corporation v. Workers Compensation Appeal Board (Bromley)

Commonwealth Court of Pennsylvania

May 4, 2017

Kimberly Clark Corporation, Petitioner
v.
Workers' Compensation Appeal Board (Bromley), Respondent

          Submitted: October 14, 2016

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE ANNE E. COVEY, Judge HONORABLE DAN PELLEGRINI, Senior Judge

          OPINION

          ANNE E. COVEY, JUDGE

         Kimberly 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)[1] 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.[2] After review, we affirm.

         Employer 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.

         On 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[3] 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, 12.

         WCJ 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.[4]

         On 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[1](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 Court.[5]

         Initially, 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).

         "[T]he 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), [6] 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.[7] Brockway Pressed Metals v. Workers' Comp. Appeal Bd. (Holben), 948 A.2d 232, 234 (Pa. Cmwlth. 2008) (emphasis added).

         I. Whether Claimant met her burden under Section 301(c)(1) of the Act.

         Employer 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.

         In 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, [8] 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 403a-404a.

         Claimant 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.

         Claimant 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.

         Further, 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 391a, 395a-397a.

         Robert 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.

         Bonkowski 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 14a.

         Bonkowski 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.[9] 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.

         Bonkowski 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.[10] 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.

         Bonkowski 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.

         Bonkowski 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.

         Bonkowski 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?
A. Sure.
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.

         Bonkowski 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.

         Bonkowski 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.

         Bonkowski 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.

         Jack 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.

         Parris 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.

         Regarding 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 prep area:

[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 your hands.

R.R. at 80a.

         Parris 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.

         Parris 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.

         Parris 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.

         Parris 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 99a-102a.

         Claimant 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. ...


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