Case Law Update | Swigart v. WCAB (Pa. Cmwlth. December 28, 2015) | PA Work Injury

December 29, 2015

Claimant was a firefighter for 20+ years and developed chronic obstructive pulmonary disease (COPD).  Claim petition filed in October 2011 alleging COPD caused by & forced him out of work.  WCJ and WCAB found that while Claimant has asthmatic bronchitis, that condition does not disable him from working as a firefighter. Thus, the WCJ concluded that Claimant does not benefit from the Heart & Lung presumption that his lung condition is a work-related occupational disease. WCJ also concluded that Claimant did not meet his burden of proving a work injury because his medical evidence regarding the causal relationship of his lung condition to his firefighting was equivocal.

 

CC: Defense expert (Daniel Dupont, DO) refusal to assign occupational causal presumption given to firefighters with a disease of the heart and lungs did not render testimony incompetent.  Dr. “did not testify that a causal relationship does not exist between exposure to the hazards of firefighting and lung disease. Rather, he opined that if an individual has other significant causal factors, he will not attribute firefighting as the number one cause.”  Dr. DuPont “indicated his acknowledgment that the presumption exists; but he believed its use as a risk factor for lung disease is not as medically compelling . . . this does not render his expert opinion incompetent.” 

 

Dr. acknowledged that firefighting exposure triggered Claimant’s breathing problems, but was not the cause.  Unfortunately for Claimant here, he was also a smoker, had a family history of lung disease, and other conditions.

 

Also no WCJ error in refusing to allow Claimant to call rebuttal witness after DuPont: Given the length of the litigation and the WCJ’s responsibility to resolve the matter expeditiously, we cannot conclude that [the WCJ] abused his discretion in precluding Dr. Gelfand’s deposition where Claimant had already presented his primary medical evidence, which happened to be equivocal and insufficient to meet his burden, and where Claimant failed to schedule the deposition within a reasonable time after the evidence he wished to rebut had been presented or within a reasonable time before the record was set to close.

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