Opinion
No. 2056 C.D. 2011
07-05-2012
Kimberly Clark Corporation, Petitioner v. Workers' Compensation Appeal Board (Stanton), Respondent
BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Kimberly Clark Corporation (Employer) petitions for review of an order of the Workers' Compensation Appeal Board (Board). The Board affirmed a decision of a Workers' Compensation Judge (WCJ), who granted benefits to John Stanton (Claimant). The WCJ determined that Claimant was disabled by virtue of a work-related occupational disease under the Workers' Compensation Act (Act). The Board affirmed the WCJ's decision granting benefits on the basis of a three-three split decision by the Board Commissioners, but upon a different provision of the Act from the one the WCJ applied in her decision. We now affirm.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1 - 1041.4, 2501-2708.
Claimant filed a claim petition on August 3, 2009, asserting that he sustained a work-related injury in the nature of "small cell carcinoma-lung cancer." Claimant averred that the date of onset of his disease was October 9, 2008. Claimant alleged that his lung cancer was caused by "exposure to coal & fly ash containing crystalline silica" while working for Employer. Claimant averred that his treating physician told him on July 23, 2009, that his condition was work-related. In his claim petition, Claimant sought full disability and medical benefits from October 10, 2008, onward. The matter was assigned to the WCJ, who conducted a hearing, during which Claimant testified.
Fly ash is a byproduct of burning coal, limestone, and petroleum coke. Fly ash contains silica. The WCJ variably refers to Claimant's alleged exposure to both fly ash and silica. As indicated in Finding of Fact number 34, the substance Claimant alleges to have caused his lung cancer was the silica contained in fly ash in the workplace. Therefore, in this opinion, unless otherwise warranted, this Court will generally refer to fly ash rather than silica, with the understanding that the fly ash in the workplace contained silica.
Claimant testified that he began working for Employer on February 23, 1976. Employer moved Claimant to its power plant in April 1987, where Claimant was required to wear a respirator in certain areas because of fly ash. He also worked in the coal yard for a year, where he also wore the respirator. In August 1988, Employer moved Claimant to an ash job, where he checked for leaking fly ash. Employer placed a restriction on its employees' exposure to fly ash between 1991 and 1997, because of unfavorable air quality tests. After 1997, the air tested more favorably. Claimant continued to work in the same capacity until October 2008.
Claimant testified that he could smell and taste the fly ash and it was difficult to walk through the plant without getting some fly ash on him. Claimant also testified that Employer trained him to identify fly ash in the workplace. Claimant stopped working in October 2008. Claimant saw a throat specialist on October 10, 2008, who told him that he had a mass on his median sternum and right lung. Claimant's illness forced him to retire. Claimant testified that he smoked at least one pack of cigarettes per day since he was seventeen (17) years old.
Claimant submitted the deposition testimony of his treating physician, Dr. Raymond Vivacqua, M.D., who is a certified hematologist and board-eligible oncologist. Dr. Vivacqua began treating Claimant in October 2008 and diagnosed Claimant with lung cancer. Dr. Vivacqua opined that there were two possible etiologies for the development of Claimant's cancer: (1) exposure to silica through fly ash, and (2) cigarette smoking.
Employer submitted the deposition testimony of Dr. Alan Lippman, M.D., who is a board-certified oncologist. Dr. Lippman examined Claimant on November 6, 2009. Dr. Lippman diagnosed Claimant's condition as metastic carcinoma of the lung, and he testified that Claimant is totally disabled because of that condition. Dr. Lippman opined that the condition was caused solely by Claimant's thirty-year smoking habit. Dr. Lippman testified that cigarettes contain a variety of carcinogens which directly impact lung tissue. Further, Dr. Lippman testified that he did not believe that Claimant's exposure to fly ash (and, consequently, silica) had any contributory effect on Claimant's lung cancer because: (1) controversy exists concerning the relationship between silica exposure and lung cancer, and (2) long term exposure to silica can lead to chronic scarring and fibrosis of the lung, which creates small nodules or scars that can impair pulmonary function and Dr. Lippman saw no indication of such scarring or evidence of chronic silica exposure in Claimant's CT scan or chest x-ray. Thus, Dr. Lippman opined that, in the absence of such evidence of silica exposure, he believed that the sole cause of Claimant's cancer was smoking.
Employer also submitted the testimony of its environmental manager, Gary Baker. Mr. Baker testified that he has been involved with Employer's monitoring and evaluation of coal dust and silica, and that levels of dust in 2002 were below OSHA and NIOSH recommendations. Mr. Baker testified that one floor of the facility was above NIOSH levels, which is the strictest standard. Mr. Baker also testified that Employer identifies the areas of its facility where employees must wear respirators and tests the fit of respirators used by its employees. Employer requires employees to wear respirators when fly ash is present. Fly ash may be present either because of a malfunction in the ash system or during a shutdown when ash is being cleaned out of the boiler.
OSHA refers to the Occupational Safety and Health Administration.
NIOSH refers to the National Institute for Occupational Safety and Health.
The WCJ concluded that Claimant was entitled to benefits under Section 108(k) of the Act. Section 108(k) of the Act permits an award of benefits for claimants who have the occupational disease of silicosis, which results from exposure to silica. In so doing, the WCJ found Claimant's live testimony credible based upon his demeanor. The WCJ found Dr. Vivacqua more credible than Dr. Lippman because: (1) Dr. Vivacqua was Claimant's treating physician and had greater familiarity with Claimant's condition; and (2) Dr. Vivacqua examined Claimant on more occasions than Dr. Lippman. The WCJ also found Mr. Baker's testimony credible.
77 P.S. § 27.1(k). Section 108 of the Act, in general, identifies various specific diseases as occupational diseases. Additionally, subsection (n), the so-called "catch-all provision" relating to unspecified occupational diseases, includes as occupational diseases "[a]ll other diseases (1) to which the claimant is exposed by reason of his employment, and (2) which are causally related to the industry or occupation, and (3) the incidence of which is substantially greater in that industry or occupation than in the general population." Section 108(n) of the Act, 77 P.S. § 27.1(n).
Employer appealed the WCJ's decision. As noted above, the Board could not reach a consensus in its review of the WCJ's decision. All of the Board Commissioners agreed, however, that the WCJ erred in analyzing Claimant's claim petition under the occupational disease provisions of the Act, because Claimant did not assert that he had silicosis or any other condition that would fall within Section 108 of the Act. The Commissioners further agreed that the claim petition should be evaluated under the general injury provisions of the Act, Section 301(c)(1) of the Act, because Claimant alleged that he was disabled as a consequence of lung cancer, which he claimed he developed as a consequence of his exposure to fly ash at work. The Commissioners, however, disagreed as to whether Claimant satisfied his burden under Section 301(c)(1) of the Act. Based upon the split vote of the Commissioners, the Board affirmed the WCJ's decision to award benefits to Claimant.
Employer filed a petition for review of that order, raising numerous issues. We identify and rephrase the primary issues Employer raises as follows: (1) whether substantial evidence supports the WCJ's factual findings regarding Claimant's exposure to fly ash at work; and (2) whether Dr. Vivacqua's testimony was competent and/or sufficient to establish that Claimant's exposure to fly ash in the work place constituted a substantial contributing factor in the development of Claimant's lung cancer.
This Court's review of a workers' compensation appeal is generally limited to considering claims of errors relating to substantial evidence, legal interpretation, and constitutional violations. 2 Pa. C.S. § 704. Further, where appropriate, under Leon E. Wintermyer, Inc. v. Workers' Compensation Appeal Board (Marlowe), 571 Pa. 189, 812 A.2d 478 (2002), we must also review a workers' compensation judge's decision for capricious disregard of evidence.
Employer raises additional secondary issues including the following: (1) whether Claimant demonstrated that he was exposed to silica within 300 weeks of his "last date of employment in an . . . industry to which he was exposed to the hazards of such a disease;" (2) whether the WCJ's decision fails to comply with the reasoned decision requirement of Section 422(a) of the Act, 77 P.S. § 834; (3) whether the WCJ erred in finding that Claimant's spouse is a dependent; (4) whether the WCJ and/or the Board erred in determining that Claimant complied with the employer-notification requirements of the Act; and (5) whether the WCJ's and/or Board's failure to require the parties to execute a confidentiality agreement constitutes an error of law or an abuse of discretion.
Employer's initial argument appears to be that, because exposure to fly ash is the alleged work-related cause of Claimant's lung cancer, and because silicosis (which is a disease caused by exposure to silica) is an occupational disease, the Board erred in reviewing the WCJ's decision by reference to and analysis under Section 301(c)(1) of the Act. This Court has held that "an employment-related disease, which is not compensable under Section 108 [of the Act], may nonetheless constitute a compensable 'injury' under Section 301(c)." Gray v. Workmen's Comp. Appeal Bd. (Pittsburgh Bd. of Educ.), 657 A.2d 77, 80 n.7 (Pa. Cmwlth. 1995) (citation omitted). In order to prevail in such a claim under Section 301(c)(1) of the Act, "the claimant must prove a causal relationship between the work-related incident and the alleged disability." Id.
We have described the burden a claimant generally bears in a claim petition as follows:
An injured employee seeking to obtain workers' compensation benefits for a work-related injury bears the burden of proving all elements necessary to support an award. Neidlinger v. Workers' Comp. Appeal Bd. (Quaker Alloy/CMI Int'l), 798 A.2d 334, 338 (Pa. Cmwlth. 2002). Pursuant to Section 301(c)(1) of the Act, 77 P.S. § 411(1), an employee's injuries are compensable if they (1) arise in the course of employment and (2) are causally related thereto. ICT Group v. Workers' Comp. Appeal Bd. (Churchray-Woytunick), 995 A.2d 927, 930 (Pa. Cmwlth. 2010). Further, an employee must demonstrate that he is disabled as a consequence of the work-related injury. Inglis House v. Workmen's Comp. Appeal Bd. (Reedy), 535 Pa. 135, 634 A.2d 592 (1993). The term "disability" is synonymous with an employee's loss of earning power. Potere v. Workers' Comp. Appeal Bd. (Kempcorp), 21 A.3d 684, 690 (Pa. Cmwlth. 2011).
In Gray, this Court discussed the evidentiary burden a claimant bears when alleging that a work-place exposure has resulted in a compensable injury:
[W]hether a hazard exists is a question of fact for the [WCJ] to determine. Furthermore . . . a claimant's burden of proof related to this issue is not overly demanding. We have also asserted that "since claimant's exposure is a factual question, the claimant need not present scientific evidence or expert testimony to prove the existence of the hazard in the workplace." "The [WCJ] may rely solely on the testimony of the claimant or other witnesses to prove the existence of an exposure to the hazard."Gray, 657 A.2d at 80-81 (citations omitted).
The WCJ made the following key factual finding relevant to Claimant's burden to prove that he was exposed to fly ash in the workplace:
The Claimant testified, and the Judge finds that he also performed work as a boiler operator since June 2000, had exposure to fly ash then, used a respirator then, and also performed work in [Employer]'s coal yard and boiler building then and for about 9 hours per day in the boiler building. The Claimant's testimony established, and the Judge finds that the Claimant performed the last
two positions until the end of his employment with [Employer] on October 9, 2008 and that he had last exposure to the occupational hazard, inclusive of the fly dust, on and about October 9, 2008.(WCJ Decision, Finding of Fact (F.F.) no. 17.)
Employer relies upon our Supreme Court's decision in Gibson v. Workers' Compensation Appeal Board (Armco Stainless & Alloy Products), 580 Pa. 470, 861 A.2d 938 (2004), for the proposition that when a lay witness cannot specifically identify a disease-causing element in the work place, the testimony is insufficient to establish exposure. The Supreme Court, however, qualified this analysis of lay testimony relating to technical matters by suggesting that when a lay witness establishes a proper background to express an opinion on a technical matter, such as first-hand knowledge or practical experience, the testimony will be deemed competent. Thus, scientific evidence is not always necessary to establish the existence of and exposure to a disease-causing element. Baptiste v. Workers' Comp. Appeal Bd. (Eichleay Corp.), 889 A.2d 641 (Pa. Cmwlth. 2005), appeal denied, 589 Pa. 723, 907 A.2d 1103 (2006).
In the case at hand, the WCJ credited Claimant's testimony that he was trained to identify fly ash and that he could see the fly ash in the area where he worked during periods when he did not use the respirator. Thus, because Claimant possessed the type of first-hand or practical experience that serves to make a lay witness competent to testify regarding the presence of a particular substance in the workplace, the WCJ did not err in relying upon Claimant's testimony regarding the presence of fly ash in the workplace. Therefore, the record contains substantial evidence to support this key finding.
Employer also argues that Claimant's testimony that he smelled and tasted fly ash is insufficient to demonstrate exposure because a person must inhale such elements in order for the silica to be present in the lungs, especially in light of evidence indicating that Claimant wore a respirator "most of the time." (Employer's brief at 29.) Employer also argues that Claimant had a burden to prove not only that he worked in an area in which fly ash was present, but also that silica materially entered his body. Employer argues that the evidence regarding its requirement that employees use respirators at certain times while working negates the evidence of this type of exposure. Employer also emphasizes that the testimony of Mr. Baker indicates that there were no high levels of silica present at the plant at times relevant to Claimant's claim for benefits. We reject both of these arguments.
With regard to the first argument, we note that Claimant's burden under Section 301(c)(1) of the Act was to establish exposure to fly ash. With regard to Employer's references to Mr. Baker's testimony regarding the use of respirators, we conclude that this argument amounts to a challenge to the weight the WCJ accorded the evidence, which, as noted above, would require this Court to exert a power of review that we lack. As Claimant points out, while he did use a well-fitted respirator, there were times when fly ash was present when Claimant did not wear a respirator, such as when he needed to communicate with others. (Reproduced Record (R.R.) at 97a.) Further, Claimant testified that when Employer relaxed its rules for the use of respirators, he would wear the respirator about half the time he worked, or six hours of a twelve-hour shift. (Id.) Further, Claimant testified that at times when he had the respirator off he could see fly ash in the area. (Id.)
Employer also argues that other evidence in the record supports a contrary finding. Employer points to Dr. Lippman's testimony that he saw no evidence in diagnostic tests conducted on Claimant indicating that Claimant had typical signs of exposure to silica such as scarring and fibrosis. The WCJ, however, found Dr. Lippman less credible than Dr. Vivacqua. As discussed below, Dr. Vivacqua testified credibly that exposure to silica does not always present with fibrosis or scarring in a patient.
This Court's appellate role, however, precludes us from reweighing the evidence or reviewing the WCJ's credibility determinations. Bethenergy Mines, Inc. v. Workmen's Comp. Appeal Bd. (Skirpan), 531 Pa. 287, 293, 612 A.2d 434, 437 (1992). In accord with our standard of review, substantial evidence is "relevant evidence that a reasonable mind might consider adequate to support a [factual determination]." Fid. & Guar. Ins. Co. v. Bureau of Workers' Comp. (Cmty. Med. Ctr.), 13 A.3d 534, 537 n.7 (Pa. Cmwlth. 2010). In this case, Claimant's testimony was sufficient to satisfy his burden to prove that he was exposed to fly ash in the workplace, and the WCJ was free to reject Dr. Lippman's testimony suggesting that Claimant lacked the normal indicators of silica exposure. We may not delve into or question the weight the WCJ accorded other evidence suggesting that Claimant was not exposed to fly ash, and consequently, we reject Employer's challenge to the WCJ's finding that Claimant was exposed to fly ash.
Employer also seeks to challenge the competency of Dr. Vivacqua's testimony regarding the connection between Claimant's exposure to fly ash at work and the development of his lung cancer. Employer asserts that Dr. Vivacqua admitted that he was not familiar with facts regarding how Claimant's respirator worked and that his understanding of Claimant's exposure to fly ash was vague. In particular, Employer contends that Dr. Vivacqua's testimony shows that he was not familiar with nature and extent of Claimant's exposure to fly ash. Thus, Employer essentially argues that Dr. Vivacqua did not have an adequate factual basis upon which to render an opinion regarding the causal connection between fly ash exposure and Claimant's lung cancer.
When the cause of an alleged work-related injury is not obvious, a claimant bears the burden to prove the causal relationship between his disability and his employment through unequivocal medical testimony. Crenshaw v. Workmen's Comp. Appeal Bd. (Hussey Copper), 645 A.2d 957, 962 n.9 (Pa. Cmwlth. 1994). In evaluating the legal sufficiency of expert evidence, we view a medical expert's testimony in its entirety. Sears, Roebuck & Co. v. Workmen's Comp. Appeal Bd., 409 A.2d 486, 488 (Pa. Cmwlth. 1979). The medical testimony must establish more than the mere possibility that the alleged injury arose as a consequence of a work-related cause, but rather demonstrate that, in the medical expert's opinion, to a reasonable degree of medical certainty, a causal connection exists between a claimant's disability and his employment. Id.
In addition to this requirement that medical expert testimony be unequivocal, in order to be competent, a medical expert's testimony must reflect an expert's adequate understanding of the facts. Id. at 490. In reviewing an expert's testimony on this basis, we must consider whether the expert "had sufficient facts before him upon which to express" his medical opinion. Id. An expert is permitted to express an opinion based upon facts of which he has no personal knowledge as long as those facts are supported elsewhere in the record. Newcomer v. Workmen's Comp. Appeal Bd. (Ward Trucking Corp.), 547 Pa. 639, 692 A.2d 1062 (1997). Unless a medical opinion is based upon such personal knowledge or record support, the opinion will be deemed to have no value. Lookout Volunteer Fire Co. v. Workmen's Comp. Appeal Bd., 418 A.2d 802, 805 (Pa. Cmwlth. 1980). Nevertheless, a medical expert's opinion will be held to be incompetent only when the opinion is based solely on inaccurate or false information; when the record as a whole contains factual support for an expert's opinion, the evidence is not incompetent. Am. Contracting Enter., Inc. v. Workers' Comp. Appeal Bd. (Hurley), 789 A.2d 391 (Pa. Cmwlth. 2001).
Employer calls the competency of Dr. Vivacqua's testimony into question based largely on alleged differences between Dr. Vivacqua's understanding of Claimant's exposure and Claimant's description of his exposure and use of a respirator at times. We believe this challenge to Dr. Vivacqua's testimony relates to the weight the WCJ accorded the evidence rather than competency. The record contains evidence supporting Dr. Vivacqua's knowledge that Claimant was exposed to fly ash, and, in fact, we have concluded that substantial evidence of record exists to support such a finding. The only discrepancy concerns the extent of Dr. Vivacqua's factual knowledge regarding the degree of Claimant's exposure. Claimant testified that he believed that he was exposed to fly ash at various times in the workplace and that during his most recent period of employment he wore the respirator only six out of twelve hours in a workday. Claimant conveyed general information to this effect to Dr. Vivacqua. Dr. Vivacqua testified that although he was uncertain regarding the degree to which Claimant's use of a respirator may have precluded Claimant from inhaling fly ash, he was aware that Claimant did not always wear the respirator. Based on this understanding, Dr. Vivacqua testified to a reasonable degree of medical certainty that Claimant's exposure to fly ash caused his lung cancer. We view this testimony as competent because it demonstrates a reasonable understanding of the underlying facts regarding Claimant's exposure. Consequently, we reject Employer's argument that Dr. Vivacqua's testimony was not competent.
In apparent response to Dr. Lippman's testimony regarding expected scarring or fibrosis in patients who have had exposure to silica, Dr. Vivacqua further testified that "[t]here have been I would say a few dozen articles about silica and lung cancer, producing lung cancer without evidence of fibrosis in the lung, sometimes with evidence of fibrosis in the lung." (R.R. at 44a.) He also testified that "from my reading of the literature, [silica] sometimes produces a visible evidence of scarring, and other times doesn't." (Id. at 45a.)
As the Board recognized, however, when a medical expert opines that both a work-related and a non-work-related factor are causes of an alleged work-related injury, a claimant, in addition to establishing his work-place exposure to a disease-causing element, must also prove that the work-related cause was a substantial contributing factor in the development of his disease. Pawlosky v. Workmen's Comp. Appeal Bd. (Latrobe Brewing Co.), 514 Pa. 450, 525 A.2d 1204 (1987). In Henry v. Workmen's Compensation Appeal Board (Mayer Pollock Corporation), 545 A.2d 438 (Pa. Cmwlth. 1988), appeal denied, 520 Pa. 620, 554 A.2d 512 (1989), this Court applied the substantial contributing factor standard to a case in which a claimant asserted that he sustained a compensable injury by virtue of lead poisoning at work. We rejected the claimant's argument that a referee erred in applying the "substantial contributing factor" standard. The claimant argued that in a non-occupational disease injury case, where there is a non-work-related cause and a work-related cause, the adjudicator should apply a lower "materially contributed" standard to the facts. We opined that the claimant failed to persuade the Court "that there is a need for a different standard in injury cases." Henry, 545 at 440.
This Court confirmed this principle in Chicoine v. Workmen's Compensation Appeal Board (Transit Management Services), 633 A.2d 658 (Pa. Cmwlth. 1993), where we applied the substantial contributing factor standard to a case involving a truck driver who continued to drive despite the fact that he had non-work-related pneumonia and his continued driving caused an aggravation of his non-work-related pneumonia. In that case, a medical expert opined that continuing to drive/work could have been a contributing factor, but did not opine that such a factor was a substantial contributing factor. This Court held that such testimony was insufficient under the substantial contributing factor standard. Chicoine, 633 A.2d at 663.
Employer argues that the medical testimony of Dr. Vivacqua was insufficient to satisfy Claimant's burden to show that his exposure to fly ash was a substantial contributing factor in the development of his lung cancer. Dr. Vivacqua's key testimony regarding the question of whether Claimant's alleged exposure to fly ash in the work place caused his lung cancer is quoted below:
Q. So you said that the silica fly ash was one potential [cause of Claimant's lung cancer], and the cigarette smoking was the other. Could you tell us which, if either, were substantial contributing factors in this particular case?(R.R. at 25a (emphasis added).) In this case, even though Dr. Vivacqua admitted that he could not "parse" out how much each cause contributed to the development of Claimant's lung cancer, his testimony clearly indicated that he believed that the work-related exposure to fly ash was a substantial contributing factor in the development of Claimant's lung cancer. Employer has offered no supporting citations indicating that a medical expert need opine regarding a specific relative causal significance as between two definitive causes. By expressing his opinion that both causes were substantial contributing causes in the development of Claimant's lung cancer, Dr. Vivacqua's testimony was sufficient to satisfy Claimant's burden.
A. I really couldn't put an assessment of the proportionality of each of those two.
Q. So you think they both are or neither of them are?
A. I think both are.
Employer also contends that the WCJ erred in awarding benefits because Claimant did not prove under Section 301(c)(2) of the Act that he was exposed to fly ash within 300 weeks of his claim. Section 301(c)(2) of the Act applies only to occupational disease cases. Because we are reviewing Claimant's case under Section 301(c)(1) of the Act, we need not consider this issue.
77 P.S. § 411. Section 301(c)(2) of the Act provides, in pertinent part, as follows:
The terms "injury," "personal injury," and "injury arising in the course of his employment," as used in this act, shall include, unless the context clearly requires otherwise, occupational diseases as defined in section 108 of this act.
Employer also asserts that the WCJ's decision fails to satisfy Section 422(a) of the Act, which requires workers' compensation judges to issue "reasoned" decisions. This Court has described a reasoned decision as one that "permits an appellate court to exercise adequate appellate review." Dorsey v. Workers' Comp. Appeal Bd. (Crossing Constr. Co.), 893 A.2d 191 (Pa. Cmwlth. 2006), appeal denied, 591 Pa. 667, 916 A.2d 635 (2007). Employer's argument can be characterized as a claim that the WCJ engaged in erroneous reasoning rather than a lack of necessary reasoning. The WCJ provided sufficient explanations for her credibility determinations such that this Court need not engage in an exercise of imagining the reasons why the WCJ found some witnesses' testimony credible and some less credible or not credible. Id. at 194 n.4 and 196. Consequently, the WCJ's decision provides a reasonable basis for our appellate review, and we conclude that the WCJ's decision satisfies the reasoned decision requirement of Section 422(a) of the Act.
Employer also argues that the WCJ erred in rendering a factual finding that Claimant's spouse is a dependent. Employer asserts that this factual finding was unnecessary for the resolution of the claim petition. Employer also asserts that the evidence of record regarding Claimant's marriage is insufficient to support the finding. Further, Employer contends that it had no notice that the issue would be raised, and, therefore, the failure of Claimant to give notice that the question would be litigated and the WCJ's consideration of the issue are legal error and/or a violation of due process. Claimant responds to this last argument by asserting that Employer knew that the question of dependency was an issue during the first hearing when the terminal nature of Claimant's condition was established. Claimant argues, therefore, that Employer was not prejudiced by the proceedings, and simply failed to take the opportunity to cross-examine Claimant regarding his spousal relationship.
We conclude that Employer's position has merit. The sole issue in the proceeding before the WCJ concerned Claimant's present right to benefits. Under Section 301(c)(1) of the Act, a dependent is eligible for benefits only "when death is mentioned as a cause for compensation," therefore, the question of one's status as a dependent is not relevant until the claimant becomes deceased. Thus, the issue of dependency is irrelevant for purposes of a claim petition. Moreover, we note that a claimant's marital circumstances may change between the granting of a claim petition and the filing of a fatal claim petition—such as a change in the marital relationship—which may affect the issue of dependency. Thus, we agree that the WCJ's consideration of the issue of dependency was premature. Because we conclude that the WCJ did not need to render this factual finding, the WCJ's error in rendering the finding was harmless. Nevertheless, we emphasize that the finding has absolutely no binding effect on any future proceeding on a fatal claim petition, because in a fatal claim petition proceeding, the WCJ must determine the issue of dependency at the time of the claimant's death and because of the lack of notice to Employer that the WCJ would proceed to resolve the dependency issue.
Employer also contends that Claimant failed to satisfy the notice requirement of Section 311 of the Act. Section 311 of the Act provides:
77 P.S. § 631. --------
Unless the employer shall have knowledge of the occurrence of the injury, or unless the employe . . . shall give notice thereof to the employer within twenty-one days after the injury, no compensation shall be due until such notice be given, and, unless such notice be given within one hundred and twenty days after the occurrence of the injury, no compensation shall be allowed.The question of whether a claimant complied with this notice requirement was a matter of fact finding for the WCJ to resolve. Scher v. Workers' Comp. Appeal Bd. (City of Phila.), 740 A.2d 741, 749 (Pa. Cmwlth. 1999), appeal denied, 563 Pa. 635, 758 A.2d 666 (2000). Further, a claimant who prevailed below is "entitled to the benefit of all reasonable inferences from the record and to have the record read in the light most favorable to [him.]" Kerr v. State Bd. of Dentistry, 599 Pa. 107, 121, 960 A.2d 427, 435 (2008).
The WCJ found as a fact that "[t]he testimony of [] Claimant and Dr. Vivacqua established . . . that Claimant first had an idea that [his] work . . . caused [his] . . . injury . . . at the time of his visit with Dr. Vivacqua in July 2009." (Finding of Fact no. 40.) Claimant's testimony indicates that Dr. Vivacqua told him of a causal relationship between work and his lung cancer sometime in July 2009. (R.R. at 144a.) Although Dr. Vivacqua testified that he thought he discussed with Claimant the possible work-related connection regarding Claimant's lung cancer "about a third of the way through" his treatments of Claimant, he also testified that "[t]o be honest, and being very honest with you, I don't recall exactly the timing of me asking or answering" Claimant's question to him regarding a connection between his condition and his employment. (R.R. at 55a.)
The WCJ found both Claimant's and Dr. Vivacqua's testimony credible. Based upon the record as a whole, we conclude that record contains substantial evidence to support the WCJ's factual finding regarding notice to Employer. Thus, the WCJ did not err in finding that Claimant did not know of the work-related cause of his lung cancer until July 2009, and his August 2009 notice to Employer was timely.
The last issue Employer raises is whether the WCJ erred as a matter of law or abused her discretion in denying Employer's request to require Claimant to sign a confidentiality agreement regarding information produced in the process of discovery. Employer has not referred the Court to the place in the record where it raised this issue. Employer's appeal to the Board includes the following objection: "The [WCJ]'s failure to order Claimant/Counsel to sign a Confidentiality Agreement and/or to hold the records confidential is not supported by substantial evidence and/or represents an error of law." (Employer's appeal to the Board, p.3, paragraph 29.)
Employer suggests that the Court should consider this issue in light of Pennsylvania Rule of Civil Procedure No. 4012(a)(9), which permits courts subject to the Pennsylvania Rules of Civil Procedure to issue protective orders. We do not believe we need to address this issue on the merits. The Pennsylvania Rules of Appellate Procedure require appellants (or petitioners as in this case) to provide a "[s]tatement of place of raising or preservation of issues." Pa. R.A.P. 2117(c). This requirement calls for appellants to identify "[t]he stage of the proceedings in the court of first instance, and in any appellate court below, at which, and the manner in which, the question sought to be reviewed were raised." Pa. R.A.P. 2117(c)(1). Further, Pa. R.A.P. 2117(c)(2) directs appellants to indicate the "method of raising [the issue] (e.g. by a pleading, by a request to charge and exceptions, etc.)." Employer has pointed the Court to no pleadings submitted to the WCJ, no notes of testimony in which this issue was discussed, and no orders of the WCJ relating to the issue. Based upon the lack of information regarding this issue, we conclude that Employer waived the issue. See In re Estate of Smith, 492 Pa. 178, 423 A.2d 331 (1980) (holding issue waived where appellant included no reference to record and only vague reference to time and circumstances involved in alleged error).
Based upon the foregoing discussion, we conclude that the WCJ did not err in granting Claimant's claim petition. Accordingly, we affirm the Board's order.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 5th day of July, 2012, the order of the Workers' Compensation Appeal Board is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge
Amandeo v. Workers' Comp. Appeal Bd. (Conagra Foods), 37 A.3d 72, 75 n.4 (Pa. Cmwlth. 2012).