Workers' Compensation Defense

On August 24, 2018, the claimant advised the employer that he had sustained a work-related injury due to lead exposure. The employer issued a notice of denial on September 1, 2018. On September 4, 2020, the claimant filed a Claim Petition seeking benefits as of September 21, 2017, and ongoing, with partial disability between July 1, 2018, and May 31, 2019. 

According to the underlying evidentiary record, the claimant was 60 years old and had worked 40 hours per week since 2015 as a solderer and welder, where he worked with lead solutions and wore safety gloves. The lead solution would get on his clothes, and the process created smoke. The claimant did not recall being exposed to lead in the past. He would at times get sore in his nasal membranes and have nosebleeds, which he thought were from fumes. The claimant had a history of smoking a pack of cigarettes per day. In September 2017, the claimant was told that he was being let go for performance reasons. He essentially did not work from that time due to anxiety and trust issues, which he said were related to the end of his employment with the employer. The claimant had symptoms of headaches and pressure in his face, neck, and ears. 

The claimant presented testimony from multiple medical experts—a PET scan specialist, a clinical psychologist and a psychiatrist—all of whom testified that exposure to lead at work caused the claimant to experience symptoms consisting of lack of concentration, tension, irritability, loss of balance, memory loss, and cognitive impairment and deficits. A vocational expert for the claimant further testified that the claimant’s occupational ability had been entirely eroded since working for the employer. 

The employer presented testimony from a safety manager testified that when their workers began employment, they watch videos and are given handouts regarding the dangers of lead exposure and the need for precautions. This witness also testified that the claimant’s workspace had exhaust fans and a ventilation system, and that uniforms provided to workers are left at the workplace each day and sent out for cleaning. The safety manager also testified that workers are tested for lead every six months. After the claimant’s November 2016 test, an occupational health doctor recommended further testing and removal from the workplace. The safety manager testified that the claimant was laid off in September 2017, along with a work partner, due to an industry slowdown, not due to the claimant’s high test results. The employer also presented a number of experts—infectious disease specialist, psychologist, toxicologist and neurologist—who testified that the claimant had a low level of lead exposure at work, and that the studies performed on the claimant’s brain—and relied on by the claimant’s experts for their opinions on causation—were not fully diagnostic of high exposures to lead. Ultimately, the workers’ compensation judge issued a decision denying the Claim Petition. The claimant appealed to the Appeal Board, which affirmed.

On appeal to the Commonwealth Court, the claimant raised multiple issues, including that the judge capriciously disregarded evidence, failed to issue a reasoned decision, the decision was not supported by the substantial evidence of record, and the judge erred in finding that the occupational disease rebuttable presumption did not apply. 

Relative to the capricious disregard argument, the court stated that, while the claimant was exposed to lead at work, and clearly believed that his current issues were related, his evidence failed to establish either lead toxicity or that his current deficiencies were due to his exposure. The fact that the workers’ compensation judge did not find the claimant’s testimony on this issue trustworthy did not amount to capricious disregard of the evidence. 

As for the claimant’s reasoned decision argument, the court concluded that the claimant failed to establish that the judge insufficiently explained the credibility determinations he made or that they were based on wholly erroneous or incompetent evidence. The court also found that the judge’s decision was based on substantial competent evidence, even though the employer’s experts testified to one degree or another that lead toxicity can result in varied, and even diffuse, manifestations and can be difficult to diagnose or definitively rule out in the absence of baseline lead testing before the claimant worked for the employer. 

Finally, the court found that in order for the occupational disability presumption under Section 301(e) of the Act to apply, the claimant must first establish that he has actually sustained and been disabled by the claimed occupational disease. If the question of whether an occupational disease has been sustained is in dispute and the workers’ compensation judge concludes that, based on the preponderance of the evidence, the answer is negative, the presumption will not apply. The judge rightly found that the claimant failed to meet his burden. 

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_{What’s Hot in Workers’ Comp, Vol. 28, No. 7, July 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2024 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}