Nowadays, if bakers contract asthma due to flour inhalation, they will almost certainly receive workers’ compensation. But this wasn’t always the case as it was a question of pre existing conditions. In this episode of Workers Comp Matters, host Alan Pierce talks to Justin Beck and Vincent Quatrini about Pawlosky v. W.C.A.B. and how the case set a new precedent for burden of proof and causation standards. They also discuss the outcome and lasting legacy of the case, including how it affects lawyers today.
Justin Beck is a law clerk at Thomas, Thomas & Hafer LLP in Pittsburgh, Pennsylvania. He concentrates his research and work in the area of workers’ compensation and employers’ defense.
Vincent J. Quatrini, Jr. is a founding partner at Quatrini Rafferty and serves as managing partner. He concentrates his practice in the area of workers’ compensation and the representation of injured workers exclusively.
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Workers Comp Matters
How the Pawlosky Case Redefined Workplace Injury
Intro: This is Workers Comp Matters, hosted by attorney Alan S. Pierce, the only Legal Talk Network program that focuses entirely on the people and the law in workers’ compensation cases. Nationally recognized trial attorney, expert and author, Alan S. Pierce is a leader committed to making a difference with Workers Comp Matters.
Alan Pierce: Welcome to Legal Talk Network and Workers Comp Matters. My name is Alan Pierce. I’m an attorney at Pierce, Pierce & Napolitano in Salem and we’re bringing you another edition of Workers Comp Matters with two guests, Justin Beck.
Justin is a recent graduate of the University of Pittsburgh School of Law. He is currently studying for the Pennsylvania Bar Exam. He’s working as a law clerk at Thomas, Thomas & Hafer LLP and he also is an academic research assistant to Judge David B Tori. He’s a former intern at the Pennsylvania Department of Labor and Industry and former law clerk at Quatrini Rafferty PC in Greensburg Pennsylvania.
And speaking of Quatrini Rafferty our other guest on line with us is Vincent Quatrini of Quatrini Rafferty law firm. Vince is a founding partner, managing partner concentrates his practice in the area of workers compensation and the representation of injured workers, has more than forty years of experience and in looking at his resume has done everything possible in leading the bar and his colleagues as probably one of the foremost practitioners and teachers and scholars of workers compensation in the Commonwealth of Pennsylvania.
We’re going to be discussing a landmark case involving Frank Pawlowski and an essay that Justin wrote about this case which is now 30 years old so before we do that first of all I’d like to welcome Justin and Vince who are speaking to us from Pennsylvania. Hi guys.
Justin Beck: Hey Alan.
Vincent Quatrini: Hello.
Justin Beck: Thanks so much for having us.
Alan Pierce: Before we begin I’d like to thank our great sponsors one of whom is Case Pacer. Case Pacer is a practice management software system dedicated to the busy trial attorneys. To learn more, go to casepacer.com and our other sponsor is PInow. They are qualified private investigators. You can find a local qualified private investigator anywhere in the country by visiting PInow.com to learn more.
So Justin I’d like to start with you because sitting on my table in front of me is an essay that you wrote. It has a logo of the Rolling Rock Extra Pale beer product that presumably is still manufactured in Latrobe, Pennsylvania and the title of your essay is “From The Glass Lined Tanks of Old Latrobe 30 Years Of Pawlowski.”
So tell me what is it about the Frank Pawlowski case that led you to commemorate 30 years of the landmark decision that came down from the Pennsylvania Supreme Court?
Justin Beck: Well, it’s kind of interesting. Of course the case itself, decided in 1987, still has major impact on Pennsylvania practice today, but in fact my personal connection to the case came many years ago. I grew up in Latrobe myself and Vince is actually my cousin so I knew him growing up and one of the interesting things is that growing up I always knew Vince was an attorney but there was a mystique on well you know why what does he do exactly and how did he get to where he is?
And as I got into law school when I started learning and moving towards the area of workers compensation myself finding it so interesting it occurred to me that this case was his defining accomplishment really in 1987 and so I started looking at a little closer and figuring out exactly what happened in the case and it dawned on me that the 30th anniversary was coming up and so I thought that it was a perfect opportunity to kind of recount what happened and the lasting legacy of the case itself.
Alan Pierce: Great and as we’re going to hear in a moment the import of the Pawlowski case was bringing together the concept of occupational illness or occupational disease into the workers compensation realm which up until the Pawlowski case in Pennsylvania and in most jurisdictions personal injury was something different than an occupational disease or an occupational injury.
So Vincent you were probably as new to the worker’s comp system when you got involved in Mr. Pawlowski’s case many years ago than Justin is today so from your perspective tell us what happened to Mr. Pawlowski that led to this decision that finally clarified the law?
Vincent Quatrini: Thank you. So as you pointed out, I was only a few years out of law school when I had the opportunity to meet Mr. Pawlowski through my mentor Morrison Lewis, an older practitioner, who had filed the claim and handled the first hearing and said here you run with this. And my naivety is a wonderful quality because it shields you from not taking chances.
So you figure that this gentleman who cleaned the beer vats at the Latrobe Brewing Company where they made Rolling Rock, he would use strong chemicals to clean the vats he would be inside the vats and over time his breathing got worse.
He came to the job with asthma, but that asthma was controlled and he worked with it but now over the course of time these chemicals aggravated his asthma to the point where he could not work anymore and so with my new legal eyes I thought well, this must be a worker’s comp injury, he’s at work the atmosphere conditions at work caused his problem to render him unable to work, he should get a weekly check and so that’s the basis on which the claim was filed and we began to litigate it on.
Alan Pierce: Okay and it didn’t go well initially for him.
Vincent Quatrini: Correct.
Alan Pierce: Tell us why?
Vincent Quatrini: Well in Pennsylvania as you point out as in many jurisdictions, they had a specific set of occupational diseases that you could qualify under black lung, asbestosis, disc stenosis and then you had your injury claims.
Well mine was somewhere between the two. This was not an occupational disease. It was a worsening of a pre-existing condition and so the referee following precedent in Pennsylvania concluded that I had not met my burden under the occupational disease provisions nor had I met my burden under the injury provision of the Act and he denied the claim.
Alan Pierce: Right and in reading the summary in Justin’s essay regarding the denial of a claim, I don’t think it was disputed that his work played a significant role in rendering him disabled by aggravating the asthma. It’s that whatever happened to him didn’t fit into the two categories that would allow recovery, occupational disease or personal injury. Is that kind of the rationale?
Vincent Quatrini: Exactly. I always appreciated about the judge before whom I appeared was that he laid the case out that way. His sympathies were with Mr. Pawlowski, but the law was not with Mr. Pawlowski, so the referee Floyd Warren laid out facts that later on appeal made it easier for the higher court to find in our favor because of what you just said Alan that the there was no question that the work is what aggravated his problem it’s just that the law didn’t conform.
Alan Pierce: Right and you know those of us myself included that have been practicing worker’s comp like you Vincent I have been doing it over 40 years myself we’ve seen significant developments even in the last 40 years, never mind the first 60 years of workers comp.
So this brings to something that Justin spent some time talking about in his essay and that’s something we talked about here on this show in the past that’s the 1972 National Commission report.
The National Commission was a study group appointed by President Nixon to is to study worker’s comp. It was led by Professor John Burton and Justin tell us what it was that came out of the federal government’s commission on worker’s comp that paved the way for the appellate courts and the Supreme Court in Pennsylvania to find a way to compensate people like Mr. Pawlowski?
Justin Beck: Well the 1972 Commission report of course is a federal report and it made, I believe 18 essential recommendations to state comp systems and they threatened that if these were not adopted amongst the states that there would be the potential for federalization of worker’s compensations so one of those recommendations was full coverage of work-related diseases similar to that provided for work-related accidents and injuries.
Now interestingly enough Pennsylvania had, we always refer to the 1972 amendments here in Pennsylvania and these ideas were not new in the commission report because the 1972 Pennsylvania amendments actually predated the publishing of those formal national recommendations and this is where Pawlowski really, yes Frank Pawlowski filed his claim petition in 1977 but the change in the law began in 1972 and those 1972 amendments actually changed the term of the compensable event recognized here in Pennsylvania from accident to injury.
And in doing so it removed a statutory requirement of what they required as violence to the physical structure of the body and so in that way it became decades of figuring out what does injury mean now that we’ve changed the term what connotation does that have and what effect does that have on compensability in the state.
Alan Pierce: And around the same time in trying to struggle with the definition of injury we were seeing a lot of these cases in the arena of people who suffered psychological or psychiatric trauma in the workplace and many jurisdictions did not recognize a psychological or psychiatric diagnosis or trauma as being an injury as defined in their local workers comp and it certainly isn’t an occupational disease so a lot of what maybe what Pawlowski stood for also was beneficial to those of us when there are other types of clearly work-related conditions that just don’t neatly fit into the definition of personal injury or accident.
Justin Beck: Right. It’s true but interestingly enough on that point in Pennsylvania to this day certain mental injuries require a higher burden to show an abnormal work event when it is a mental cause and a mental injury whereas Pawlowski for all other injuries there’s a quote from the case itself that says we now hold that an employer takes his employee as he finds him, a thin skull last-straw doctrine but the only remnant of higher burdens for specific ailments in Pennsylvania is still this mental injury that has a different standard of a different burden of proof than the rest.
Alan Pierce: Yeah in fact I’d like to get into burden of proof and causation standards as it might apply to a Pawlowski type situation now so Vincent we kind of left it off with you that it was denied by the referee which I guess is what passes for either a hearing officer, Commissioner or administrative judge in different jurisdictions I think you no longer you refer to them as referees in Pennsylvania. What was the appellate courts’, just very quickly from that point, of denial, even though the judge or the referee gave you some helpful language?
Vincent Quatrini: The second step in Pennsylvania is what is described as the workers comp appeal board, so you’re still in the administrative structure of the Pennsylvania Department of Labor. They also denied the claim. They affirmed the referee’s denial. They cited a case that was my nemesis at the time called Plasteel and in Plasteel the court had created a fiction that they called disease-like and I won’t try to explain that in our limited time.
But again back to my naivety I kept saying well there what is disease-like? It’s either a disease or it isn’t a disease and they also held that under this one provision of the Act I didn’t show there was a greater incidence of this kind of problem in the beer industry than in the general public. So I was struck out for the second time.
The next step in Pennsylvania is the Commonwealth Court and so now in 1984 about seven years after the beginning of the process we were in front of the Commonwealth Court Alan.
Alan Pierce: And is that like the Superior Court, Trial Court or is that an appellate body with more than one judge of justice?
Vincent Quatrini: It is an appellate body so you leave the administrative system, go over to the Pennsylvania appellate courts, starting at the Commonwealth Court typically seven judges or in many other jurisdictions they have panels so three judges will hear a case but if it goes court en banc that means all seven and we argued the case in front of the commonwealth court and the court although they did not identify which specific provision of the Act I had proven my case under they overturned the decision of the judge and the appeal court and at its core the commonwealth court was establishing the idea that any work-related harm is compensable.
Alan Pierce: So that was a break from legal precedent and tradition at least insofar as asthma cases or things like that correct?
Vincent Quatrini: Exactly. Aggravations were not recognized prior to this. And so now the next step the insurance company and the employer then appealed to the Supreme Court of Pennsylvania.
Alan Pierce: Now at that level is it discretionary with the Supreme Court to take it or is it in an automatic appeal if they file it?
Vincent Quatrini: It is discretionary. You can file a petition for allowance and the court is our colleagues across the nation would recognize only a handful of cases are accepted to the Supreme Court.
Alan Pierce: And I would assume the Supreme Court in making a decision whether to accept a case for a discretionary appellate review really looks at how much of a change or novel decision that they’re going to write. So that it’s usually a sign that this is a case of sufficient importance not only to Mr. Pawlowski and his family but to other people and the Supreme Court upheld the decision as I understand it?
Vincent Quatrini: It did and the part of the back story of that stage is that we, my colleague Roy Walters who represented Rolling Rock and I argued the case in Pittsburgh Pennsylvania in front of the court en banc Supreme Court again being seven judges Pennsylvania and no decision came down for over a year and we had all kind of theories running as to why but then a year later I don’t know where they rescheduled the case for argument in Philadelphia PA across the state and we went down there to conduct a second argument in front of the same panel of judges.
Alan Pierce: And how long did you have to wait for that decision?
Vincent Quatrini: It was again months. So here’s Frank Pawlowski you know on his almost ten-year saga and I keep telling him you know well maybe you know we’ll hear now maybe and so it went on for at least I think 16,17 months from the first argument and so the decision came down in 1987, May of 1987 again noting that we left the Commonwealth Court in 1984.
Alan Pierce: At this point we’re going to take a quick break and when we come back we will continue the saga of Frank Pawlowski and the impact of the Pawlowski decision not only in Pennsylvania but in other states that have wrestled with the same concept, so we’ll be right back.
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Alan Pierce: Welcome back to Workers Comp Matters with Justin Beck and Vincent Quatrini talking about Frank Pawlowski. Vincent where we left off was finally in 1987 you got to the end of a 10-year Odyssey for Mr. Pawlowski I’m assuming he went without any compensation benefits during this entire period?
Vincent Quatrini: That’s right Alan. Yeah it was a ten-year without income.
Alan Pierce: So he got an award of ten years retroactive benefits, did your statute provide interest?
Vincent Quatrini: He did and it did provide interest, it provides ten percent interest per year I think it might have been six percent at that point.
Alan Pierce: And can I assume he received ongoing compensation benefits for being permanently disabled?
Vincent Quatrini: He did, yes, but we eventually in Pennsylvania we have the ability to settle out your right to checks back then and so we did reach a lump sum settlement of his claim and my dear friend Mr. Pawlowski passed away in 1992.
Alan Pierce: I’m sorry to hear that but I’m very happy that yeah because I think you know there are certain cases even in my career that that you become so intimately involved with your clients and their lives and their financial issues not to mention their medical issues that you form a bond or a friendship and reading through Justin’s excellent essay and just knowing what I know about you Vincent I’m guessing that you and Mr. Pawlowski formed and that family formed a similar bond?
Vincent Quatrini: Yes so true Alan and again having practiced your entire career you appreciate the uniqueness of that and the gratification that comes with fighting uphill and coming out victorious at the end as we practitioners who represent injured individuals know there’s not much better feeling as a professional.
Alan Pierce: Yeah and Justin as you have gotten into the field of workers comp albeit as a law student and now hopefully a member of the Pennsylvania Bar and a workers comp attorney. That reward aside from any of financial remuneration or satisfaction you get from arguing a case or winning a case that is special that’s what makes the practice of workers comp law unique among other fields.
So but I want to get back to you Justin because you were talking about the causation, the fact that an aggravation of a pre-existing condition is enough to trigger responsibility on the part of the employer, the employer’s workers comp insurance company.
So in Pennsylvania I take it you merely have to show that you’ve aggravated pre-existing conditions. I’m familiar with a jurisdiction like Massachusetts and other jurisdictions where the causation standard is a bit tougher for those of us who have the burden of proof.
In Massachusetts if somebody had asthma and they worked cleaning out vats of beer and were exposed to these types of chemicals and their asthma got worse we would have to show not just that we aggravated the asthma but that the work remained a major cause of the asthmatic condition and disability that’s different than Pennsylvania, is it not?
Justin Beck: It is and that’s why Pennsylvania is still to this day stands out and the legacy of Pawlowski from a legal doctrine perspective we often say here in Pennsylvania that if work is the straw that broke the camel’s back then that’s it is compensable and really that goes back to Vince.
It’s funny Vince was talking about the Plasteel case, the 1977 Plasteel case being his nemesis during the Pawlowski litigation but in fact there were some elements of that case helping him because at the same time in Plasteel you had a underground coal miner who for 32 years worked in the mines and then he transferred to a new employer and it was just mixed dust at that point that turned his pre-existing condition into totally disabling condition.
And the court was in that sense moving towards what would ultimately be the Pawlowski doctrine didn’t get all the way there but it has its roots there, but yes in Pennsylvania we no longer fight really over whether a type of injury is compensable as long as competent medical proof show that it is work-related then we consider it compensable.
Alan Pierce: Okay and what do you see is the lasting legacy of Pawlowski?
Justin Beck: The lasting legacy would be that as I said as long as it’s work-related it is compensable. So instead of having to go to court and fight over which section of the statute we can get certain injuries under and whether that piece of the statute finds this particular injury compensable.
And that was really the statutory legacy of Pawlowski, the way we actually litigate in Pennsylvania instead of having to go through our what we call Section 108 occupational diseases even a catch-all provision that we have, Vince alluded to that you can just show that if it’s not listed in our occupational disease section as long as you show that it has a greater incidence in your industry than the general population then it’s compensable.
Even that is no longer necessary. Pawlowski allowed the injured worker to go through what we call our general injury provision, which is Section 301 (c) 1 of our Act and that’s the legacy for lawyers, for litigation that the burden was lowered to just show the connection to work.
Alan Pierce: And Vince following the decision in 1987 was there an uptake in other claims being brought that you had not seen before?
Vincent Quatrini: Yes but modestly funny you should refer to that Alan because Roy Walter’s main argument to the Supreme Court is a parody of most defense arguments of this.
Alan Pierce: “The floodgates are open”.
Vincent Quatrini: “The floodgates are open” if Roy who said at once Alan, he said it eight times and in fact the concept of aggravation evolved slowly and I’ve thought about that over the years that is it a floodgate or it is just simply a recognition of you know people having to labor with pre-existing problems that if they didn’t do that particular job they would just keep working but it was that job that they were doing whether it was repetitive where their carpal tunnel is aggravated to a point that they need surgery or their lungs are impaired to the point where they can’t work, it’s still a work injury and that’s my legacy of Pawlowski that I hold.
Alan Pierce: And I don’t know if this ever came up, but medically there has been for many years many decades before Pawlowski a disease entity called Baker’s Asthma and it was named Baker’s Asthma because Bakers who spent all day inhaling flour and other flour like materials developed a bronchial condition that was asthma but was specifically known as Baker’s asthma which would lead one to believe that they would be eligible for worker’s comp, but I would guess before Pawlowski even Baker with Baker’s asthma would have had trouble getting worker’s comp.
Vincent Quatrini: Excellent point. Yes the burden of proof as you and Justin have alluded to would have been much higher. Alan before we close I would like to just publicly acknowledge what a wonderful job Justin did with the story. He spent many hours and did lots of homework to put this wonderful journey together and I applaud him for that.
Alan Pierce: And before I ask Justin to tell our listeners how they might be able to download and read this unlike Law Review articles or scholarly academic boring case studies this is punctuated with photographs with actual copies of the filings, there’s one thing that caught my attention was like a little interoffice handwritten memo Vince when you started the case.
So you know a reader especially somebody who handles cases like this we’re not just reading the legal story but we’re getting a picture of both how this impacted the lawyer as well as the client and Justin I will echo Vince in congratulating you for a unique approach to telling this story so for our listeners who might want to read it and appreciate it more how can they get a copy?
Justin Beck: Well thank you for the kind of words from both of you. If somebody’s interested in reading it judge Dave Torrey has posted it on his research website and that is www.davetorrey.info and it’s just right on the left side of the page you’ll see it.
Alan Pierce: All right well again I want to thank you Justin for the work you’ve done I want to welcome you to what you will find to be an exciting & rewarding career of workers compensation practice and Vincent as always keep up the good work for the citizens of the Commonwealth of Pennsylvania. Thank you for both appearing on our show and for those of you listening tune in for our next show and go out and make it a day that matters. Thanks.
Outro: Thanks for listening to Workers Comp Matters today on the Legal Talk Network hosted by Attorney Alan S. Pierce where we try to make a difference in Worker’s Comp legal cases for people injured at work. Be sure to listen to other worker’s comp matters shows on the Legal Talk Network, your only choice for legal talk.