City of Scranton v. WCAB (Pica) (Majority Opinion)

Annotate this Case

Download PDF

IN THE COMMONWEALTH COURT OF PENNSYLVANIA City of Scranton, Petitioner v. Workers Compensation Appeal Board (Pica), Respondent BEFORE: : : : : : : : : No. 1920 C.D. 2007 SUBMITTED: January 25, 2008 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE RENÃ E COHN JUBELIRER, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE LEADBETTER FILED: March 24, 2008 The City of Scranton (City) petitions for review of the order Workers Compensation Review Board (Board), which reversed the denial of Anthony Pica s claim petition for occupationally-related hepatitis C based upon the conclusion that the City failed to rebut the statutory presumption that the disease was work-related. The only issue raised on appeal is whether the Board erred as a matter of law when it concluded that testimony of the City s medical expert was equivocal and, therefore, insufficient to rebut the statutory presumption that the disease was workrelated. After review we affirm. Anthony Pica worked as a police officer for twenty-eight years for the City. He retired in 1999 and, at some point thereafter, began working for a different employer. In November of 2002, Pica was diagnosed with hepatitis C; he promptly notified the City of his diagnosis and filed a claim petition.1 The City denied the claim and litigation ensued. In support of his claim, Pica testified to his responsibilities over the years, noting that, on many occasions, he was exposed to saliva, blood and other bodily fluids when rendering first aid, breaking up fights, responding to accidents and investigating crime scenes. According to Pica, in 1994 he began to work as a detective and his exposure to such incidents was significantly reduced. He could not recall a specific incident where he was exposed to blood or bodily fluids. Pica also offered the deposition testimony of his treating internist, Anees Fogley, M.D. Dr. Fogley testified that Pica s hepatitis C was causally related to his employment as a police officer.2 In opposition, the City offered the deposition testimony of Steven Feinstein, M.D., an internist, who conducted an independent medical exam of Pica in January of 2004. Of significance, Dr. Feinstein noted that Pica received multiple blood transfusions for treatment of a childhood injury3 and that: [T]here is a small chance of hepatitis C transmission from any unit of blood transfused before 1992, and that estimate seems to be .45 of one percent per unit. That seems to be a relatively standard number, and that s from the CDC. So in this particular instance, anybody who has ever had a blood transfusion that is a risk factor. . . . Feinstein deposition (January 20, 2004) at 25-26. Dr. Feinstein commented that at the time that he prepared his report, Pica had two risk factors for hepatitis C: the 1 Pica did not assert that he was disabled by the disease. Dr. Fogley referred Pica to a specialist for treatment of the virus. 3 Pica was 55 years old at the time of the exam. 2 2 non-occupational blood transfusions and the occupational exposure to blood and bodily fluids and he was willing to accept the fact that there was a possibility that either one could be true. Id. at 36. According to the doctor, internet research that he performed the night before his deposition revealed that emergency medical responders do not have an increased incidence of the disease as compared to the general population. Dr. Feinstein then opined: So, if anything, had [I known about the studies discovered during the internet search], I probably would have strengthened the report even further and leaned more in favor of non-occupational risks. Id. at 37. As to his ultimate opinion regarding the cause of Pica s hepatitis C, Dr. Feinstein opined: I would say there are two possible causes for his hepatitis C infection. The first was his blood transfusion, and the second was his occupational exposure. I think if I would lean in one direction or another, I would be very concerned about the transfusion history since that is by far a very common explanation for hepatitis C acquisition. However, I can t completely rule out an occupational exposure as the source. Id. at 40.4 4 In his report, Dr Feinstein opined that he could not conclusively answer whether Pica s hepatitis C was occupationally related, noting that: It is somewhat difficult to compare the relative risk contributions of the two vastly different possible means of acquiring hepatitis C. Certainly the transfusion of multiple units of blood carries with it a significant risk of the transmission of hepatitis C and it is not unreasonable to consider that Mr. Pica may have been exposed to hepatitis C via transfusion. I cannot, however, rule out an occupational source of exposure. [It] is probably not possible to distinguish with any degree of certainty which of the two risk factors resulted in Mr. Pica s acquiring hepatitis C. (Footnote continued on next page ¦) 3 In his initial opinion, the Workers Compensation Judge (WCJ) accepted Dr. Feinstein s opinion as more credible and persuasive regarding the cause of Pica s hepatitis, and rejected that offered by Dr. Fogley. The WCJ further found that he could not conclude that the hepatitis C was work-related without engaging in speculation. In addition, he concluded that Pica was not entitled to the presumption set forth in Section 301(e) of the Workers Compensation Act,5 77 P.S. § 413, because the presumption was enacted in 2001 after Pica stopped working for the City.6 On appeal, the Board concluded that Section 108(m.1) _____________________________ (continued ¦) Report dated January 9, 2004, at 6, Reproduced Record at 309. 5 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4; 2501-2626. 6 We assume that the WCJ actually meant to refer to the amendment to Section 108, 77 P.S. § 27.1, which was amended in 2001 to expressly provide that hepatitis C constitutes an occupational disease in certain circumstances, including: (m.1) Hepatitis C in the occupations of professional and volunteer firefighters, volunteer ambulance corps personnel, volunteer rescue and lifesaving squad personnel, emergency medical services personnel and paramedics, Pennsylvania State Police officers, police officers requiring certification under 53 Pa. C.S. Ch. 21 (relating to employees) and Commonwealth and county correctional employes . . . . Hepatitis C in any of these occupations shall establish a presumption that such disease is an occupational disease within the meaning of this act, but this presumption shall not be conclusive and may be rebutted. This presumption shall be rebutted if the employer has established an employment screening program, in accordance with guidelines established by the department in coordination with the Department of Health and the Pennsylvania Emergency Management Agency . . . and testing pursuant to that program establishes that the employe incurred the Hepatitis C virus prior to any job-related exposure. 77 P.S. § 27.1(m). This section was added by the Act of December 20, 2001, P.L. 967. See also Section 301(e) of the Act, 77 P.S. § 413, which provides: If it be shown that the employe, at or immediately before the date of disability, was employed in any occupation or industry in which the occupational disease is a hazard, it shall be presumed (Footnote continued on next page ¦) 4 applied and remanded to the WCJ for findings and conclusions in light of its provisions. On remand, the WCJ found as follows: 16. Pursuant to the remand order . . . this WCJ finds claimant is entitled [sic] a rebuttable presumption that his Hepatitis C is related to his job duties that he performed as a police officer. 17. After reviewing the evidence . . . this WCJ chooses to accept as credible, persuasive and convincing the candid testimony of Dr. Feinstein. While not ruling out completely that there was some type [of] occupational exposure to Hepatitis C, he was not able to specifically conclude within a reasonable degree of medical certainty that claimant had, in fact, incurred Hepatitis C as a result of his employment with the City of Scranton. On the contrary, he attributes the most likely reason for claimant having Hepatitis C to the transfusions he received as a teenager many years previously. That testimony, conclusion and explanation is found to be more convincing and credible and will be accepted by this WCJ. 18. The testimony and opinion of Dr. Fogley, who had candidly acknowledged that he is not an expert in the treatment of Hepatitis C yet opined that the claimant s work activities as a police officer were the cause of the Hepatitis C will be specifically rejected. Dr. Lalos, claimant s primary treating expert gastroenterologist, did not offer an opinion as to the cause of the Hepatitis C and Dr. Fogley s opinion is based upon his own conclusions and opinions and not those of Dr. Lalos. _____________________________ (continued ¦) that the employe s occupational disease arose out of and in the course of his employment, but this presumption shall not be conclusive. Section 301(e) was added by the Act of October 17, 1972, P.L. 930. 5 19. This WCJ cannot find and conclude that the work activities as a police officer for the City of Scranton caused claimant s Hepatitis C without engaging in speculation. WCJ s opinion and order (dated September 14, 2006) at 4. Based upon the above, the WCJ concluded that Dr. Feinstein s credited opinion was sufficient to rebut the statutory presumption that Pica s hepatitis C was work-related and denied the claim petition. The Board reversed on appeal. In doing so, the Board concluded that Dr. Feinstein s opinion lacked the necessary certainty required to establish causation and, therefore, it was equivocal and legally insufficient to rebut the statutory presumption. The present appeal followed. On appeal, the City contends that Dr. Feinstein s opinion that Pica s non-occupational blood transfusions were the most likely cause of his hepatitis C constitutes credited competent evidence sufficient to rebut the statutory presumption. We disagree. First, the WCJ need not engage in speculation regarding whether Pica s hepatitis was incurred through work activities. The WCJ was bound to presume that the virus was occupationally related absent credited competent medical evidence to the contrary. See Sections 108(m.1) and 301(e) of the Act; City of Philadelphia v. Workers Comp. Appeal Bd. (Sites), 889 A.2d 129 (Pa. Cmwlth. 2005). With respect to the competency of Dr. Feinstein s opinion, we note that: Competency when applied to medical evidence, is merely a question of whether the witnesses [sic] opinion is sufficiently definite and unequivocal to render it admissible. We have often observed that medical evidence is unequivocal as long as the medical expert, 6 after providing a foundation, testifies that in his professional opinion he believes or thinks the facts exist. Cerro Metal Prod. Co. v. Workers Comp. Appeal Bd. (Plewa), 855 A.2d 932, 937 (Pa. Cmwlth. 2004) (quotations and citations omitted). We have further noted that medical evidence which is less than positive or which is based upon possibilities may not constitute legally competent evidence for the purpose of establishing a causal relationship. City of Philadelphia, 889 A.2d at 140 (quotations and citation omitted). Whether evidence is competent is a question of law subject to this court s plenary review. Cerro Metal Prod., 855 A.2d at 937. Here, Dr. Feinstein s opinion lacks the certainty required to overcome the statutory presumption. Dr. Feinstein failed to offer a definite opinion as to the cause of the hepatitis. Rather, he acknowledged the two possible sources of the infection and noted initially in his report that he could not opine with any degree of certainty whether the transfusions or work exposure caused contraction of the disease. When deposed, the doctor thought it was more likely that the transfusion was the source of the infection but could not rule out occupational exposure. Accordingly, his opinion is too indefinite to establish causation and rebut the presumption. Therefore, the Board did not commit error and its order must be affirmed. _____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge 7 IN THE COMMONWEALTH COURT OF PENNSYLVANIA City of Scranton, : : : : : : : : Petitioner v. Workers Compensation Appeal Board (Pica), Respondent No. 1920 C.D. 2007 ORDER AND NOW, this 24th day of March, 2008, the order of the Workers Compensation Appeal Board in the above captioned matter is hereby AFFIRMED. _____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.