IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David W. Schmidt, :

Petitioner :

:

v. : No. 1887 C.D. 2016

: Submitted: August 4, 2017

Workers’ Compensation Appeal :

Board (City of Allentown), :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE BROBSON FILED: October 23, 2017

Petitioner David W. Schmidt (Claimant) petitions for review of an order 

of the Workers’ Compensation Appeal Board (Board), dated November 8, 2016. 

The Board affirmed the decision and order of a Workers’ Compensation Judge 

(WCJ), denying and dismissing Claimant’s claim petition. For the reasons that 

follow, we affirm.

Claimant was employed as a full-time firefighter for the City of 

Allentown Fire Department (Employer) from August 28, 1978, through his last day 

of active duty work on October 12, 2009. Prior to his last day of employment,

Claimant was diagnosed with coronary atherosclerosis, and he underwent open-heart 

surgery on October 22, 2009. Claimant did not return to work after his surgery, 

ultimately retiring on May 1, 2010. 
2

On June 28, 2012, Claimant filed a claim petition, alleging a 

compensable injury in the form of coronary atherosclerosis that rendered him totally 

disabled beginning October 14, 2009. A WCJ conducted a hearing, during which 

Claimant testified that his job duties were that of an average firefighter, and he was 

able to perform them at adequate levels up until October 2009. (Reproduced Record 

(R.R.) at 11.) Claimant testified that in the time period leading up to his last day of 

employment, he began to experience shortness of breath and chest discomfort. (Id. 

at 12.) This prompted Claimant to seek a medical evaluation with his family doctor, 

ultimately leading to his surgery and subsequent retirement. (Id.) Claimant testified 

that he was routinely exposed to smoke throughout his career and that, although he 

utilized a breathing apparatus while exposed to fires, he would not use a breathing 

apparatus all the time. (Id. at 17.) Claimant further testified that he was also exposed 

to diesel smoke in the firehouse from the fire engines throughout his working career. 

(Id. at 19-20.) 

In support of Claimant’s claim petition, Claimant presented the 

deposition testimony of Nicholas DePace, M.D. (Id. at 48.) Dr. DePace testified 

that Claimant’s fire service exposure was a significant causative factor of his 

coronary artery disease, albeit not the sole cause. (Id. at 53-54.) Dr. DePace opined 

that Claimant would not have had to undergo surgery at the age of 59 if not for his 

fire-service exposures over his career. (Id. at 54.) Dr. DePace further opined that 

Claimant was disabled from firefighting as a result of his surgery. (Id.)

In opposition to the claim petition, Employer presented the deposition 

testimony of Joseph A. Gascho, M.D. (Id. at 108.) Dr. Gascho testified that the 

need for Claimant’s surgery was related to premature coronary artery disease 

primarily caused by three classic risk factors—high blood pressure, high cholesterol,
3

and diabetes.1 (Id. at 123.) Dr. Gascho acknowledged Dr. DePace’s assertion that 

Claimant’s coronary artery disease was caused by Claimant’s job as a firefighter. 

(Id.) He opined, however, that although particulate matter from smoke exposure can 

be a contributing factor, it is “not nearly as important” a factor as the other risk 

factors that Claimant had. (Id. at 123-24.) Dr. Gascho also opined that Claimant 

had recovered enough to return to work as a firefighter with Employer. (Id.

at 129-30.) 

In a decision circulated on November 7, 2013, the WCJ determined that 

the development of Claimant’s injury and resultant surgery were not due to his duties 

as a firefighter, thus denying and dismissing the claim petition. Thereafter, Claimant 

filed a timely appeal, alleging the WCJ failed to apply the statutory causation 

presumption set forth in Section 301 of the Workers’ Compensation Act (Act).2 The 

Board, by opinion and order dated January 29, 2015, agreed that the WCJ erred by 

not applying the statutory presumption, vacated the WCJ’s decision, and remanded 

the matter to the WCJ for the presumption to be applied. 

 By decision and order dated January 29, 2016, the WCJ applied the 

statutory presumption and again denied Claimant’s petition. The WCJ noted that 

the presumption under Section 301 of the Act is not conclusive, and the WCJ 

concluded that the medical evidence presented by Employer successfully rebutted 

 

1 Dr. Gascho testified that there are generally five risk factors that are considered to be 

“classic risk factors” for coronary artery disease: (1) high cholesterol; (2) diabetes; 

(3) hypertension; (4) family history; and (5) smoking cigarettes. (R.R. at 119.) 

2 Act of June 2, 1915, P.L. 736, added by the Act of October 17, 1972, P.L. 930, 77 P.S. 

§ 413. Section 301 of the Act 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 that the employe’s occupational disease arose out of 

and in the course of his employment, but this presumption shall not be conclusive. 
4

that presumption. The WCJ accepted as credible Dr. Gascho’s testimony that

Claimant’s coronary heart disease was primarily the product of his high cholesterol, 

hypertension, and diabetes. The WCJ rejected Dr. DePace’s testimony as not 

credible, specifically his opinion that Claimant’s firefighting duties constituted a 

substantial, contributing factor to the development of coronary heart disease. 

Claimant then filed a timely appeal to the Board, challenging the credibility 

determinations of the WCJ. 

By opinion dated November 8, 2016, the Board affirmed the WCJ’s 

denial and dismissal of Claimant’s claim petition. The Board agreed with the WCJ 

that Employer had successfully rebutted the presumption under Section 301 of the 

Act. Claimant then petitioned this Court for review.

On appeal,3 Claimant argues that the WCJ and the Board erred in 

concluding that Employer presented substantial competent evidence to successfully 

rebut the presumption of causation under Section 301 of the Act. More specifically, 

Claimant argues that the testimony of Dr. Gascho, Employer’s medical expert, was 

not tantamount to competent evidence from which the WCJ could conclude that 

Employer successfully rebutted the presumption. 

Claimant is seeking compensation for his coronary atherosclerosis 

pursuant to Section 108(o) of the Act.4 A claimant proceeding under Section 108(o) 

 

3 This Court’s standard of review is limited to determining whether constitutional rights 

were violated, whether an error of law was committed, or whether necessary findings of fact are 

supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. 

§ 704.

4 Act of June 2, 1915, P.L. 736, added by the Act of October 17, 1972, P.L. 930, as 

amended, 77 P.S. § 27.1. Section 108(o) of the Act defines the term “occupational disease” to 

include:
5

must first establish that he is suffering from and disabled by a particular occupational 

disease of the heart or lungs. Harrigan v. Workmen’s Comp. Appeal Bd., 397 A.2d 

490, 492 (Pa. Cmwlth. 1979). Once a claimant has established that he has contracted 

an occupational disease, there is a presumption that the disease was caused by his 

employment. Dillon v. Workers’ Comp. Appeal Bd. (City of Phila.), 853 A.2d 413, 

418 (Pa. Cmwlth. 2004), appeal denied, 871 A.2d 194 (Pa. 2005). That presumption 

is rebuttable by substantial, competent evidence. Id. An employer can successfully 

rebut the presumption by introducing unequivocal, medical evidence that, although 

a claimant’s exposure to the hazards of firefighting may be a cause of the heart 

disease, other more significant causal factors are attributable to the heart disease. Id. 

at 419. The determination as to whether the testimony of a medical witness is 

competent is a question of law and is fully reviewable by this Court. Buchanan v. 

Workmen’s Comp. Appeal Bd. (City of Phila.), 659 A.2d 54, 56 (Pa. Cmwlth.), 

appeal denied, 668 A.2d 1137 (Pa. 1995). Such review must encompass the witness’ 

entire testimony and not merely isolated statements. Id.

Claimant first argues that competent medical testimony did not exist to 

rebut the presumption of causation because Dr. Gascho misunderstood Claimant’s 

fire service. Specifically, Claimant alleges that “Dr. Gascho’s belief that [Claimant] 

was always protected from smoke, particulate, diesel, and soot as of the end of the 

[1980’s] prevents his opinion from providing the competent evidence necessary to 

support the WCJ’s opinions that [Employer] rebutted the presumption.” (Pet’r Br. 

at 18-19 (emphasis in original).) Claimant contends that Dr. Gascho’s medical 

 

Diseases in the heart or lungs, resulting in either temporary or permanent total or 

partial disability or death, after four years or more of service in fire fighting for the 

benefit or safety of the public, caused by extreme over-exertion in times of stress 

or danger by exposure to heat, smoke, fumes, or gasses, arising directly out of the 

employment of any such firemen.
6

opinion is reliant on possibilities, as there is no evidence that indicates that Claimant 

always wore his breathing apparatus. Accordingly, Claimant argues that this opinion 

falls short of being competent evidence to rebut the presumption of causation. See 

City of Phila. v. Workers’ Comp. Appeal Bd. (Kriebel), 29 A.3d 762, 769 (Pa. 2011) 

(Kriebel). We disagree.

Here, Dr. Gascho never testified that Claimant “always” used his 

breathing apparatus after it became standard protocol in the late 1980’s, merely that 

Claimant used the breathing apparatus much more frequently. On the issue of 

Claimant’s use of a breathing apparatus, Dr. Gascho testified:

Q: For exposure to smoke or particulate matter to be a 

factor, does there need to be a certain extent of 

exposure?

A: I’m sure there does. I mean, this is one of those gray 

areas now. It’s very difficult to come up with 

exactly how much – how many minutes or hours or 

something else – I’m sure there’s some gradation 

there – but of someone’s firefighting exposure.

Now, I think a significant issue in this situation, it 

appears that this gentleman, [the Claimant], didn’t 

use a [breathing apparatus] very much until the 

eighties. Then from the eighties on, he used the 

[breathing apparatus] quite – it seems like pretty 

significantly religiously after that. Religious is not 

a good word here. It seems like he used it much 

more often from the eighties on. So that would 

suggest that his exposure was significantly less after 

that period of time. 

(R.R. at 124.) Dr. Gascho did not fail to understand the nature of Claimant’s 

firefighting duties with respect to Claimant’s usage of a breathing apparatus. 

Instead, he explained that Claimant’s consistent use of a breathing apparatus after 

the 1980s (as required by the standard operating procedures for firefighters), would 
7

result in a decreased likelihood that Claimant’s coronary artery disease was a result 

of his firefighting duties. Dr. Gascho expounded on this logic during his testimony:

A: The whole point of [wearing a breathing apparatus] 

is to try to decrease the amount of exposure to the 

smoke. And when you have official guidelines and 

policies that say this is what you need to wear when 

you go to fight fires, and you start to wear that kind 

of thing and if it’s not going to be – certainly I think 

that my opinion would be that you’re going to 

significantly decrease the amount of exposure and 

therefore you’re going to decrease the chance of this 

being a factor in causation for coronary artery 

disease. 

(Id. at 126-27 (emphasis added).)

To be competent, an expert must base his testimony on facts warranted 

by the record or reasonable inferences drawn therefrom. City of Williamsport v. 

Workers’ Comp. Appeal Bd. (Cole(Deceased)), 145 A.3d 806, 813 (Pa. Cmwlth. 

2016), appeal denied, ___ A.3d ___ (Pa., No. 570 MAL 2016, December 21, 2016). 

Through Claimant’s own testimony, wearing a breathing apparatus became required 

in the late 1980s, after which time Claimant agreed that it had become “routine” to 

wear them. (R.R. at 18.) Based upon this information, Dr. Gascho opined that 

Claimant would significantly decrease his exposure to airborne inhalants. 

Claimant’s own medical expert, Dr. DePace, does not refute this conclusion, as he 

stated that although a breathing apparatus would not completely eliminate the risk

posed by airborne inhalants, it would serve to diminish it. (Id. at 58.) Accordingly, 

we conclude that the WCJ did not err as a matter of law by failing to conclude Dr. 

Gascho’s testimony was incompetent insofar as his understanding of Claimant’s 

duties as a firefighter and Claimant’s use of a breathing apparatus.
8

Next, Claimant challenges the competence of Dr. Gascho’s testimony

by averring that Dr. Gascho did not provide an opinion as to the cause of Claimant’s 

disease within a reasonable degree of medical certainty. (Pet’r Br. at 19.) We 

disagree. During his deposition, Dr. Gascho testified as follows:

Q: Based on all of the information that you were able 

to glean from the records, do you have an opinion 

within a reasonable degree of medical certainty as 

to the cause for Mr. Schmidt’s coronary artery 

disease?

A: Yes. I think that we would consider this to be 

premature coronary artery disease. He had it in 

his 50s and certainly has the three classic risk 

factors of high blood pressure, high cholesterol and 

diabetes, which are certainly the most important 

factors, significant factors, in setting him up to 

develop the cause of his coronary disease which 

then resulted in him needing the operation.

(R.R. at 122-23.) Dr. Gascho’s medical opinion with respect to the cause of 

Claimant’s coronary artery disease is the same opinion as the Claimant’s own 

treating physician, Shehzad Malik, M.D. (R.R. at 155-56.) During Dr. Gascho’s 

deposition, Employer introduced evidence in the form of a written statement from 

Dr. Malik concerning his treatment of Claimant. (Id. at 21.) In the document, 

Dr. Malik opines that the causation of Claimant’s coronary artery disease is more 

likely to be attributable to Claimant’s own personal risk factors than Claimant’s 

history as a firefighter. (Id. at 156.) 

In his brief, Claimant argues that the instant case is analogous to 

Jeannette District Memorial Hospital v. Workmen’s Compensation Appeal Board 

(Mesich), 668 A.2d 249 (Pa. Cmwlth. 1995) (Mesich), appeal denied, 677 A.2d 841 

(Pa. 1996). In Mesich, this Court determined that an employer did not successfully 

rebut the presumption of causation when the employer was unable to provide 
9

alternative possibilities for the cause of the claimant’s disease. This Court 

summarized as follows:

[The e]mployer’s evidence was insufficient to rebut the 

presumption that [the c]laimant’s disease was 

work-related. [The e]mployer presented the testimony of 

Dr. Michael Malinger and Dr. Wayne Peternel. Dr. 

Malinger testified that he could not establish within a 

reasonable degree of medical certainty what had caused 

[the c]laimant’s hepatitis. Dr. Peternel also testified that 

he was unable to determine the cause of [the c]laimant’s 

hepatitis. Therefore, [the e]mployer did not produce 

substantial evidence rebutting the presumption that [the 

c]laimant had acquired hepatitis within the course of her 

employment. 

Mesich, 668 A.2d at 252 (internal citations omitted).

Claimant’s analogy of Mesich, however, is not in accord with the record 

in this case. Not only did Dr. Gascho testify that Claimant’s coronary artery disease 

was attributable to the other significant risk factors previously listed, but he then 

went on to describe his analysis of those risk factors and their importance in his 

analysis. (R.R. at 119-28.) The WCJ found this testimony to be credible, and this 

Court will not upset those credibility determinations, as they are the sole province 

of the WCJ. Vols v. Workmen’s Comp. Appeal Bd. (Alperin, Inc.), 637 A.2d 711, 

714 (Pa. Cmwlth. 1994). 

Last, Claimant argues that Dr. Gascho’s “admission that particulate

matter from smoke can be a contributing factor to the development and progression 

of coronary artery disease” is further evidence that his testimony is not competent to 

support the WCJ’s decision. (Pet’r Br. at 20.) Specifically, Claimant points out that 

Dr. Gascho agreed with Dr. DePace’s assertion that each of the Claimant’s risk 

factors (diabetes, high cholesterol, and hypertension), in conjunction with 

Claimant’s long-term exposure to particulate matter in smoke or diesel fuel 
10

emissions were additive, in that each increased the risk for coronary heart disease. 

This admission, Claimant argues, serves to show that Dr. Gascho improperly 

disregarded the additive impact of Claimant’s service as a firefighter, rendering his 

testimony incompetent as a matter of law. 

While Dr. Gascho testified that Claimant’s long-term exposure to 

particulate matter would be additive to Claimant’s risk of coronary heart disease, Dr. 

Gascho also mentioned that Claimant’s risk due to this exposure was “minor 

compared to the documented [risk factors]” present within Claimant. (R.R. at 148.) 

In other words, although Dr. Gascho acknowledged the risks related to Claimant’s 

service as a firefighter, he offered extensive testimony as to how Claimant’s other 

risk factors were more causally related to Claimant’s coronary heart disease. 

Claimant essentially asks this Court to reverse the credibility 

determinations of the WCJ as they pertain to Dr. Gascho and Dr. DePace. In 

assessing the credibility of Dr. Gascho and Dr. DePace, the WCJ found the 

following:

The testimony and opinions of Dr. Gascho served as a 

thorough refutation of the opinions and testimony of Dr. 

DePace. The Employer convincingly demonstrated that 

the Claimant’s development of coronary [atherosclerosis]

was caused by the classic risk factors for the development 

of coronary [atherosclerosis], including diabetes, high 

cholesterol, hypertension and obesity. Dr. DePace 

unconvincingly dismissed or minimized these factors in 

forming his opinion that the Claimant’s [atherosclerosis]

was caused by his employment as a firefighter. Dr. 

DePace was also unaware as to any of the specifics as to 

the Claimant’s job duties as a firefighter, including but not 

limited to the frequency with which the Claimant fought 

active fires, the chemicals the Claimant may have been 

exposed to in the course of fighting fires, and the 

preventative role the Claimant’s use of a self[-]contained 

breathing apparatus may have played. 
11

(WCJ Decision, Finding of Fact No. 10.) As previously referenced, the WCJ is the 

final arbiter of witness credibility and evidentiary weight. Such credibility 

determinations are binding on appeal, and we will not disturb them. See Vols, 

637 A.2d at 714. Having accepted the testimony of Dr. Gascho, the WCJ had 

substantial, competent evidence to support her determination that Employer 

successfully rebutted the presumption of causation under Section 108(o) of the Act. 

Accordingly, the order of the Board is affirmed. 

 

 P. KEVIN BROBSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David W. Schmidt, :

Petitioner :

:

v. : No. 1887 C.D. 2016

:

Workers’ Compensation Appeal :

Board (City of Allentown), :

Respondent :

O R D E R

AND NOW, this 23rd day of October, 2017, the order of the Workers’ 

Compensation Appeal Board, dated November 8, 2016, is AFFIRMED.

 

 P. KEVIN BROBSON, Judge