IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Peter DiLaqua, :

Petitioner :

:

v. :

:

City of Philadelphia Fire Department :

(Workers’ Compensation Appeal :

Board), : No. 1262 C.D. 2020

Respondent : Argued: November 15, 2021

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY 

JUDGE COVEY FILED: December 23, 2021

Peter DiLaqua (Claimant) petitions this Court for review of the 

Workers’ Compensation (WC) Appeal Board’s (Board) December 16, 2020 order 

that reversed the WC Judge’s (WCJ) decision, thereby denying Claimant’s Claim 

Petition for WC (Claim Petition). Claimant presents two issues for this Court’s 

review: (1) whether the Board erred by applying an incorrect burden of proof to the 

rebuttable presumption in Section 301(e) of the WC Act (Act)1(Presumption) and 

making findings of fact contrary to those made by the WCJ; and (2) whether the 

Board erred by ruling that Claimant failed to meet his burden of proving a workrelated injury even without the Presumption. After review, this Court reverses and 

remands.

1 Act of June 2, 1915, P.L. 736, as amended, added by Section 3 of the Act of October 17, 

1972, P.L. 930, 77 P.S. § 413.
2

Background

The City of Philadelphia Fire Department (Employer) hired Claimant 

as a firefighter in 2003. After 2 years of fighting fires, Claimant spent 11 years 

working for Employer’s Visual Communication Unit (VCU). Although Claimant’s 

VCU duties consisted mostly of office work, he was also required to go to and 

photograph multiple-alarm fires, fire fatalities, and other accident scenes where he 

spent numerous hours directly exposed to soot and fire debris. See WCJ Finding of 

Fact (WCJ FOF) 6b, WCJ Dec. at 3 (Reproduced Record (R.R.) at 13a). 

“[Claimant’s] eyes would tear and become red at the scenes. At the end of the day, 

his nasal mucous would be black and he coughed-up soot.” Id. Over time, Claimant 

experienced asthma symptoms and he developed bronchitis approximately five

times per year. 

In August 2016, after undergoing testing, Claimant’s doctor informed 

him that he “was suffering from RADS (Reactive Airways Dysfunction 

Syndrome)[,] which is a form of occupational asthma.” R.R. at 91a. By August 22, 

2016 letter, Claimant notified Employer of his RADS diagnosis and requested 

Employer to recognize his condition as a compensable work injury. See R.R. at 91a; 

see also WCJ FOF 6c, WCJ Dec. at 3-4 (R.R. at 13a-14a). On September 26, 2016, 

Employer rejected Claimant’s request and issued a Notice of Denial. See R.R. at 

151a-152a. Claimant continued to work for Employer until June 2018, when he left 

work due to an unrelated elbow injury.2 See WCJ FOF 6d, WCJ Dec. at 4 (R.R. at 

14a); see also R.R. at 57a-58a, 81a. 

2

In July 2018, the VCU became part of Employer’s community outreach team (referred to 

in the record as CAT). See WCJ FOF 6d, WCJ Dec. at 4 (R.R. at 14a); see also R.R. at 56a-57a. 

Claimant has not yet worked for Employer as part of the CAT team because he was out for his 

elbow injury before the transfer occurred. See WCJ FOF 6d, WCJ Dec. at 4 (R.R. at 14a); see also

R.R. at 57a-58a.
3

On August 23, 2018, Claimant filed the Claim Petition, therein seeking 

WC benefits for “[RADS,]” R.R. at 1a, caused by his exposure to smoke and toxic 

fumes at fire scenes from 2003 until June 2018. See R.R. at 2a-4a. Employer 

opposed the Claim Petition. See R.R. at 5a-10a.

The matter was assigned to a WCJ, who conducted hearings on 

September 20 and November 27, 2018, and May 16 and July 18, 2019. On 

November 14, 2019, the WCJ granted the Claim Petition for medical bills only,3

declaring that Claimant met his burden of proving that his occupation as a fireman 

was a substantial cause of his pulmonary condition. See WCJ Dec. at 5 (R.R. at 

15a). Employer appealed to the Board. On December 16, 2020, the Board reversed 

the WCJ’s decision, ruling that the Presumption did not apply because Claimant 

failed to prove income loss, and Claimant’s medical evidence did not support a 

finding that Claimant’s pulmonary condition was work-related.4 See Board Op. at 

11 (R.R. at 34a). Claimant appealed to this Court.5

Discussion

Pursuant to Section 301(c)(1) of the Act, an employer is 

only liable to pay a claimant’s medical expenses that arise 

from and are caused by a work-related injury. [See] 77 

P.S. § 411(1). Initially, the claimant bears the burden of 

3 At the November 27, 2018 WCJ hearing, Claimant clarified that, since he was out of work 

due to his elbow injury, at that point, he was not claiming lost wages. See R.R. at 41a-42a; see 

also WCJ FOF 4, WCJ Dec. at 3 (R.R. at 13a). The WCJ specifically found: “There is no evidence 

that [Claimant] is suffering any loss of earnings due to this injury.” WCJ FOF 11, WCJ Dec. at 6 

(R.R. at 16a).

4 One Board member dissented, stating: “Claimant satisfied the requirements to establish 

the [P]resumption in favor of Claimant pursuant to [Section 108(o) of the Act, added by Section 1 

of the Act of October 17, 1972, P.L. 930].” Board Op. at 12 (R.R. at 35a).

5

“Our review is limited to determining whether the WCJ’s findings of fact were supported 

by substantial evidence, whether an error of law was committed or whether constitutional rights 

were violated.” Bristol Borough v. Workers’ Comp. Appeal Bd. (Burnett), 206 A.3d 585, 595 n.6 

(Pa. Cmwlth. 2019).
4

establishing that an injury is work-related. Generally, a 

claimant satisfies h[is] burden by presenting unequivocal 

medical evidence that establishes a causal connection 

between the alleged injury and the work incident. 

Roundtree v. Workers’ Comp. Appeal Bd. (City of Phila.), 116 A.3d 140, 144 (Pa. 

Cmwlth. 2015) (citation omitted). Section 301(c)(2) of the Act defines injury to 

include an “occupational disease as defined in [S]ection 108 of th[e] [A]ct.” 77 P.S. 

§ 411(2). Section 108(o) of the Act lists among compensable occupational diseases:

Diseases of the . . . lungs, resulting in either temporary or 

permanent total or partial disability[6]. . . , after four years 

or more of service in fire[]fighting . . . , caused . . . by 

exposure to heat, smoke, fumes or gasses, arising directly 

out of the employment of any such firemen. 

77 P.S. § 27.1(o). This Court has explained that, “[t]o become eligible for 

compensation for an occupational disease under Section 108 of the Act . . . , a 

claimant must prove a disability resulting from a disease enumerated in Section 108 

[of the Act,] and that the disease arose out of and was related to the claimant’s 

employment.” Bristol Borough v. Workers’ Comp. Appeal Bd. (Burnett), 206 A.3d 

585, 605 (Pa. Cmwlth. 2019).

However, pursuant to Section 301(e) of the Act:7

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 

[P]resumption shall not be conclusive.

77 P.S. § 413. The Pennsylvania Supreme Court has explained:

6

“[T]he term ‘disability’ is a term of art in the [WC] context. Generally, ‘disability’ is 

synonymous with loss of earning power resulting from a work-related injury.” Whitfield v. 

Workers’ Comp. Appeal Bd. (Tenet Health Sys. Hahnemann LLC), 188 A.3d 599, 612 (Pa.

Cmwlth. 2018).

7 Added by Section 3 of the Act of October 17, 1972, P.L. 930.
5

[O]nce a claimant establishes that he suffers from an 

enumerated occupational disease, he is entitled to the 

[P]resumption that the disease arose during the course of 

his employment. The burden then shifts to the employer 

to rebut the [P]resumption with substantial, competent 

evidence. . . . “Medical evidence that relies on 

possibilities, or is less than positive, will not constitute 

legally competent evidence to establish causation.” 

Indus[.] Recision Serv[s.] v. W[orkers’] C[omp.] A[ppeal]

B[d.] (Farbo), 808 A.2d 994 (Pa. Cmwlth. 2002).

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

(citations omitted).

Claimant argues that the Board erred by applying an incorrect burden 

of proof to the Presumption and making findings of fact contrary to those made by 

the WCJ.

The Board reversed the WCJ’s decision, in part, because the WCJ 

applied the Presumption to Claimant’s medical-only Claim Petition, reasoning:

A claimant is entitled to the [P]resumption only where the 

claimant has established that he contracted one of the

diseases enumerated by Section 108 of the Act and that the 

disease has caused his disability. Repash [v. Workers’ 

Comp. Appeal Bd. (City of Phila.), 961 A.2d 227 (Pa. 

Cmwlth. 2008)]. . . . Here, Claimant indicated that he is 

not alleging disability related to his pulmonary issues. In 

fact, Claimant conceded that he is currently disabled due 

to a non-work-related elbow issue and sought only 

medical benefits for his pulmonary problems. [(See R.R. 

at 41a, 56a-57a)]. Likewise, Claimant has failed to 

establish that his lung disease enumerated in Section 

108(o) of the Act caused disability, and therefore, 

Claimant is not entitled to the rebuttable [P]resumption. 

Because he was not entitled to the rebuttable 

[P]resumption, and we cannot say that Claimant’s 

pulmonary issues were obviously connected to his work as 

a firefighter, it was Claimant’s burden to establish through 

unequivocal medical evidence that his pulmonary issues 

were caused by his occupation.

Board Op. at 9-10 (R.R. at 32a-33a).
6

This Court recognizes that Claimant admitted to the WCJ that he had

no lost income as a result of the injury listed in the Claim Petition, see R.R. at 41a, 

and the WCJspecifically found that “there is no evidence that [Claimant] is suffering 

any loss of earnings due to this injury.” WCJ FOF 11, WCJ Dec. at 6 (R.R. at 16a). 

This Court also acknowledges its prior holdings that disability is a condition 

precedent to applying the Presumption. 

A claimant proceeding under Section 108(o) of the Act 

“must first establish that he or she is suffering from and 

[is] disabled by this particular occupational disease.” 

Buchanan v. Workmen’s Comp[.] Appeal B[d.] (City of 

Phila[.]), 659 A.2d 54 (Pa. Cmwlth. 1995)[.] . . . Once a 

claimant establishes that he is suffering from and [is]

disabled by the occupational disease, then the claimant is 

entitled to a [P]resumption that the occupational disease 

arose out of and in the course of his or her employment. 

Rex v. Workers’ Comp. Appeal Bd. (City of Oil City), 879 A.2d 854, 862 (Pa.

Cmwlth. 2005); see also Buchanan; Allingham v. Workmen’s Comp. Appeal Bd. 

(City of Pittsburgh), 659 A.2d 49 (Pa. Cmwlth. 1995); Hebden v. Workmen’s Comp. 

Appeal Bd. (Bethenergy Mines, Inc.), 597 A.2d 182, 192 (Pa. Cmwlth. 1991), rev’d

on other grounds, 632 A.2d 1302 (Pa. 1993) (“A claimant who . . . is entitled to the 

[Presumption] that the disease ‘arose out of and in the course of his employment,’

must nevertheless show that he or she was disabled (lost earning power) as a result 

of the disease.”).

However, in City of Philadelphia v. Workers’ Compensation Appeal 

Board (Cospelich), 893 A.2d 171 (Pa. Cmwlth. 2006), wherein the employer took 

the position the Board proffered here, this Court explained:

In [Buchanan and Allingham], the claimant was seeking 

total or partial disability benefits as a result of an 

occupational disease and the issues before the [C]ourt 

involved, inter alia, whether the claimant had met his 

burden of proving that he was in fact disabled by the 
7

occupational disease. Here, [the claimant] has not alleged 

that he is disabled, nor sought compensation benefits. Our 

research has not revealed any appellate decisional law 

holding that a claimant suffering from an occupational 

disease was not entitled to payment of reasonable and 

necessary medical expenses because the disease had not 

yet caused the claimant to sustain a loss of earnings. 

Moreover, such a holding would be inconsistent with both 

the Act and other settled decisions of this [C]ourt. Section 

306(f.1)(1) of the Act, as amended, 77 P.S. § 531(1) 

provides, in pertinent part:

(i) The employer shall provide payment in 

accordance with this section for reasonable 

surgical and medical services, services rendered 

by physicians or other health care providers[] . . . .

(ii) In addition to the above service, the employer 

shall provide payment for medicines and supplies, 

hospital treatment, services and supplies and 

orthopedic appliances, and prostheses in 

accordance with this section. . . . [] The provisions 

of this section shall apply to injuries whether or 

not loss of earning power occurs. . . . 

(Emphasis added.) Thus, the Act requires an employer to 

pay for work-related medical expenses whether or not a 

loss of earnings has occurred.

In Odd Fellow’s Home of Pennsylvania v. Workmen’s 

Comp[ensation] Appeal [Board] (Cook), . . . 601 A.2d 465 

([Pa. Cmwlth.] 1991), this [C]ourt discussed the same 

principle established by the precursor to Section 306(f.1)

[of the Act], opining:

[Employer] also argues that the [WCJ] erred in 

determining that [the claimant] was entitled to an 

award for reimbursement of medical expenses 

pursuant to [former S]ection 306(f) of the [A]ct, 

77 P.S. § 531. Although we hold that [the 

claimant] has failed to prove a disability, the denial 

of disability benefits is not inconsistent with an 

award for medical expenses incurred for treatment 

of a work-related injury. An employee is not 

required to show that an injury resulted in loss of 

earnings to permit receipt of reimbursement for 
8

medical expenses. As subsection 4 of [S]ection 

306 of the [A]ct provides:

The employer shall provide payment for 

medicines and supplies, hospital treatment, 

services and supplies and orthopedic 

appliances. . . . The provisions of this 

[sub]section shall apply in injuries whether or 

not loss of earning power occurs.[FN12]

[Odd Fellow’s Home, 601 A.2d] at 471 (citations omitted, 

footnote added). Accord Canestrale v. Workmen’s Comp. 

Appeal Bd. (Wheeling Pittsburgh Steel), . . . 634 A.2d 841 

([Pa. Cmwlth.] 1993). Indeed, it is now well[ ]established 

that an employer should issue a notice of compensation 

payable/denial in a “medical only” claim or risk the 

imposition of penalties for a violation of the Act. See 

Orenich v. Workers’ Comp. Appeal Bd. (Geisinger Wyo[.]

Valley Med. Ctr.), 863 A.2d 165 (Pa. Cmwlth. 2004) . . . . 

According[ly], we conclude that the Board and WCJ did 

not err in concluding that [the claimant] was entitled to 

medical benefits relating to his hepatitis C despite not 

having incurred any loss of earnings.

In conjunction with the above argument, [the] employer 

contends that [the claimant’s] lack of disability precludes 

application of the [P]resumption set forth in Section 

301(e)[ of the Act]. The [Presumption] “is an evidentiary 

advantage for a claimant who has contracted an 

‘occupational disease’ in an occupation or industry in 

which such disease is a hazard,” City of Phila[.] v. 

Workers’ Comp. Appeal Bd. (Rilling), 827 A.2d 1258, 

1262 (Pa. Cmwlth. 2003) . . . ; in such cases, the claimant 

is entitled to the rebuttable [P]resumption that the 

occupational disease arose out of and in the course of his 

employment. [See] Allingham . . . [citing Hebden . . . . ]. 

In addition to the [P]resumption established by Section 

301(e) [of the Act], Section 108(m.1) [of the Act (relating 

to hepatitis C)] contains a [P]resumption specifically for 

firefighters who sustain hepatitis C while engaged in their 

occupation. Unlike the [P]resumption in Section 301(e)

[of the Act], . . . Section 108(m.1) [of the Act] does not 

even use the term disability, so [it] cannot even arguably 

require loss of earnings for the [P]resumption to 
9

apply.[FN15] Thus, we conclude that the WCJ did not err in 

applying the [P]resumption in this case.

[FN12] While [former] Section 306(f) [of the Act] 

has since been amended and renumbered to 

Section 306(f.1) [of the Act], this obligation has 

not changed. See [77 P.S. § 531(1)(i), (ii)].

[FN15] The requirement that a claimant must prove 

disability to be entitled to the Section 301(e) [of 

the Act] [P]resumption seems illogical since the 

[P]resumption only relieves the claimant from 

proving that his occupational disease arose in the 

course of his employment.

Cospelich, 893 A.2d at 178-79 (italics added; footnotes omitted). 

A few months after deciding Cospelich, this Court again ruled, in Young 

v. Workers’ Compensation Appeal Board (Zinc Corp. of America), 897 A.2d 530, 

534-35 (Pa. Cmwlth. 2006), aff’d as modified, 922 A.2d 891 (Pa. 2007):

Despite language in the Act and case law generally stating 

that eligibility for compensation depends upon proof of 

disability, which is synonymous with earnings loss, our 

[C]ourt has clarified that a claimant suffering from an 

occupational disease is entitled to payment of reasonable 

and necessary medical expenses regardless of whether the 

disease has caused earnings loss. 

Young, 897 A.2d at 534-35 (citations omitted); see also Caffey v. Workers’ Comp. 

Appeal Bd. (City of Phila.), 185 A.3d 437, 446 (Pa. Cmwlth. 2018) (“If [a c]laimant 

can establish that he sustained an occupational disease under any applicable 

provisions of the Act, he is entitled to payment of his medical bills related to his 

occupational disease even though he did not suffer a loss in earnings.”). 

Based on Cospelich, Young, and Caffey, this Court holds that the Board 

erred by ruling that Claimant had to prove disability (i.e., earnings loss) before the 

WCJ could apply the Presumption in this case. Rather, for the Presumption to apply 

relative to his medical-only Claim Petition, Claimant only had to prove that he 
10

suffered from an occupational disease listed in Section 108 of the Act. See Steele v. 

Workers’ Comp. Appeal Bd. (Findlay Twp.), 155 A.3d 1173 (Pa Cmwlth. 2017). If 

successful in doing so, Claimant would be relieved of the burden of proving that his 

“disease arose out of and in the course of his employment[.]” 77 P.S. § 413. 

Accordingly, this Court reverses the portion of the Board’s order ruling that 

Claimant had to prove disability in this instance.

Having clarified the applicable burdens of proof, this Court will now 

review the record to determine whether Claimant met his burden of proving that he 

“has an occupational disease listed in Section 108 of the Act[.]” Steele, 155 A.3d at 

1177. 

At the WCJ hearings, Claimant testified8that, although Employer

provided respiratory protection equipment when he fought fires for the first two 

years of his employment, Employer did not provide such equipment when he 

photographed fire scenes for the VCU. See R.R. at 50a. Claimant estimated that he 

photographed 8 to 10 multiple-alarm fires per year and, over time, he photographed 

50 to 70 rooms where deaths occurred. See R.R. at 77a-79a. Claimant explained 

that, for multiple alarm fires, he would be at a scene for 8 to 10 hours and, relative 

to death investigations, he would be at a fire scene for at least 6 hours. See R.R. at 

49a, 76a. 

According to Claimant, he has never smoked cigarettes, and has not 

lived with a smoker (his mother) since his early teens. See R.R. at 66a-67a. He 

declared that he never had breathing problems, asthma, or bronchitis before he 

worked for Employer. See R.R. at 73a-75a. Claimant recalled that, in approximately 

2015, he began experiencing breathing problems and had successive bouts of 

bronchitis and, after testing, was diagnosed with RADS and he notified Employer. 

8 The WCJ observed at the hearing that “Claimant spoke in a slow and labored voice.” 

R.R. at 13a; see also R.R. at 59a.
11

See R.R. at 51a-54a, 69a-70a, 82a. Claimant stated that his respiratory condition has 

gotten progressively worse over time, and he loses his voice depending on the air 

temperature. See R.R. at 58a-59a, 61a, 81a-82a. Notwithstanding, Claimant 

continued to work for Employer until his elbow injury caused him to stop working 

in June 2018. See R.R. at 58a.

Claimant represented that he currently treats with pulmonologist Gary 

Aaronson, D.O. (Dr. Aaronson) approximately every six months, who has prescribed 

medications and an inhaler for him. See R.R. at 61a-63a, 84a. Claimant indicated 

he plans to return to work for Employer once his elbow injury resolves. See R.R. at 

59a-60a. However, Claimant expressed concern that he will be unable to use the 

breathing devices Employer now supplies for the community outreach team (referred 

to as CAT) because now he “can’t breathe through a sheet.” R.R. at 60a. 

Claimant also presented a packet of medical reports from his treating 

physicians - Neil M. Cohen, D.O. (Dr. Cohen), Aditi Satti, M.D. (Dr. Satti), Miriam 

Rosado, M.D. (Dr. Rosado), Justin Palatt, M.D. (Dr. Palatt), and Dr. Aaronson9-

that the WCJ admitted into the record.10 According to Dr. Palatt’s records review 

summary, on November 24, 2012, Claimant treated for a subjective cough. See R.R. 

at 92a. On December 12, 2013, Claimant was seen for upper respiratory symptoms, 

diagnosed with sinusitis, and prescribed medication. See id. On July 23, 2014, 

9 Dr. Cohen was Claimant’s primary care doctor from 2006 until 2017. See R.R. at 142a. 

Dr. Cohen initially treated Claimant for bronchitis and, ultimately, referred Claimant to 

pulmonologist Dr. Satti at the Temple Lung Center. See R.R. at 69a-73a. Dr. Rosado has been 

Claimant’s primary care doctor since 2017. See R.R. at 72a-73a. Dr. Palatt is another physician 

in Dr. Rosado’s practice who has treated Claimant. See R.R. at 92a. 

10 A significant portion of Claimant’s medical history was supplied in Dr. Palatt’s July 17, 

2019 records review summary, the supporting records for which are not included in this record;

thus, more detailed information is unavailable to this Court. See R.R. at 92a-93a. Claimant’s 

counsel represented at the November 15, 2021 oral argument before this Court that, since this 

matter was a medical-only claim involving disability of 52 weeks or less, pursuant to Section 

422(c) of the Act, added by Section 6 of the Act of June 26, 1919, P.L. 642, 77 P.S. § 835, unsworn 

medical reports and office notes were admissible in the absence of the opposing party’s objection.
12

Claimant was again treated for sinusitis, plus an upper respiratory infection and 

pharyngitis. See id. On February 3, 2015, Claimant was treated for a cough and 

fever. See id. 

On February 24, 2016, Dr. Cohen examined Claimant for a cough with 

sputum and chest tightness that Dr. Cohen diagnosed as acute bronchitis. See R.R. 

at 92a, 128a-129a. On March 21, 2016, Claimant again treated with Dr. Cohen for 

a cough, chest tightness, shortness of breath, and wheezing that Dr. Cohen 

determined was recurrent bronchitis with possible mild asthma, for which he was 

given an albuterol inhaler and referred to Dr. Satti. See R.R. at 92a, 126a-127a. On 

April 8, 2016, Dr. Satti examined Claimant, diagnosed that he had chronic asthma 

and prescribed a mometasone inhaler in addition to his albuterol inhaler. See R.R. 

at 92a. During his annual examination with Dr. Cohen on May 10, 2016, Claimant 

reported a continued cough and shortness of breath, along with fatigue and lack of 

energy. See R.R. at 123a-125a. On August 1, 2016, Claimant underwent a skin test, 

that was negative for tuberculosis. See R.R. at 92a, 116a-117a. On August 9, 2016, 

Dr. Satti increased Claimant’s mometasone dose and referred him for allergy 

testing.11 See R.R. at 92a, 113a-114a. 

Claimant again visited Dr. Cohen on October 21, 2016, for cough, chest 

tightness, and shortness of breath made worse by recent fires, distress due to his fear 

of not having enough breath to fight fires, and stomach issues related to his 

medications. See R.R. at 110a-112a, 119a-122a. Dr. Cohen diagnosed Claimant 

with anxiety, “mild persistent asthma without complication,” gastroesophageal 

reflux disease and gastritis, and referred Claimant for an echocardiogram and to a 

gastroenterologist. R.R. at 121a. Claimant followed up with Dr. Rosado on 

11 The allergy test results do not appear to have been included in the record before the WCJ.
13

November 29, 2016, who diagnosed Claimant with chronic asthma. See R.R. at 92a, 

107a-109a, 130a. 

On March 31, 2017, on Dr. Satti’s referral that referenced Claimant’s 

associated diagnoses of “[r]eactive airway disease” (RAD)[12]and “unspecified 

asthma severity, uncomplicated,” R.R. at 131a, Claimant underwent a 

cardiopulmonary exercise test that he was unable to complete due to shortness of 

breath; notwithstanding, the test findings suggested that Claimant’s limitations were 

cardiac rather than pulmonary in nature. See R.R. at 92a, 131a-137a, 141a-142a. 

On April 25, 2017, Dr. Satti ordered an echocardiogram and referred Claimant to a 

cardiologist for dyspnea (i.e., shortness of breath). See R.R. at 92a. 

On March 29, 2018, Claimant had a preventative visit with Dr. Rosado 

who changed his mometasone to Symbicort and referred him for additional testing. 

See id. Claimant’s April 4, 2018 chest x-ray was negative for pathology. See R.R. 

at 92a, 101a. Claimant followed up with Dr. Rosado on July 3, 2018, who reported 

that Claimant was doing well on Symbicort; however, he became symptomatic when 

he tried stopping it. See R.R. at 93a. During that visit, Claimant complained of, 

inter alia, anxiety, asthma, bronchitis, and shortness of breath. See R.R. at 104a106a. Dr. Rosado diagnosed Claimant with “[a]sthma [chronic obstructive 

pulmonary disease]” and opined that, since Claimant was a firefighter, “I think 

[Claimant’s] pulmonary issues have something to do with his occupation.” R.R. at 

106a. 

Claimant treated with Dr. Aaronson on July 12, 2018, for asthma 

symptoms, and Dr. Aaronson diagnosed Claimant with moderate, persistent asthma 

and intermittent sinusitis and bronchitis. See R.R. at 93a, 99a-103a. Dr. Aaronson 

declared: “[G]iven [Claimant] is a firefighter and has exposure in the workplace to 

12 Although it is not clear based on this record, it appears that RAD and RADS are separate 

and distinct conditions.
14

caustic materials he would benefit from wearing a respirator at all times while 

investigating fire scenes and fighting fires[.]” R.R. at 103a. On July 13, 2018, 

Claimant underwent an echocardiogram, that showed only mild left ventricular

hypertrophy. See R.R. at 93a. On July 19, 2018, Claimant treated at an urgent care 

facility for sinusitis. See id.

On January 8, 2019, Dr. Aaronson again saw Claimant, and noted that 

Claimant continued to have intermittent asthma (currently stable), sinusitis and 

bronchitis, and repeated: “[G]iven [Claimant] is a firefighter and has exposure in the 

workplace to caustic materials he would benefit from wearing a respirator at all times 

while investigating fire scenes and fighting fires.” R.R. at 98a; see also R.R. at 93a, 

94a-98a. Dr. Aaronson added:

In my professional medical opinion[,] patients with 

asthma [RAD] should take precautions (respirator/[m]ask) 

in the workplace when exposed to smoke and fumes[,] as

this can potentially cause worsening symptoms, cause 

exacerbations and deterioration in pulmonary function 

tests.

Would suggest pulmonary function testing yearly to 

monitor [Claimant’s] pulmonary status. [Claimant] was 

started on inhaler therapy . . . and is monitoring his peak 

flows. [Claimant] has follow-up appointment [in] July 

2019[,] at which time further suggestions and assessment 

can be made concerning his asthma. 

R.R. at 94a.

On July 8, 2019, Claimant had a preventative visit with Dr. Palatt, 

during which Claimant was not experiencing pulmonary symptoms. See R.R. at 93a. 

On July 16, 2019, Dr. Palatt summarized, based on his review of Claimant’s medical 

records:

[O]ccupational exposures are a major risk for pulmonary 

disease. [Claimant] reports not having a mask for much of 

his career and this is certainly an occupational exposure 
15

which could lead to asthma. His cardiopulmonary testing 

suggested a cardiac limitation, his decreased peak flow 

suggests pulmonary disease. These results are discordant 

and repeat pulmonary function testing may help further 

clarify this, as well as completing a cardiac evaluation if 

not yet done. From the standpoint of symptoms, it is clear 

that he is [sic] improved after having to remove himself 

from the work environment for unrelated reasons.

Id.

In addition to Claimant’s medical records, the WCJ admitted the 

Independent Medical Evaluation (IME) report of Employer’s expert John R. Cohn, 

M.D. (Dr. Cohn) into the record. According to the IME report, Dr. Cohn evaluated

Claimant on March 4, 2019, at Employer’s request. At that time, the only medical 

record Dr. Cohn reviewed was Dr. Satti’s April 25, 2017 letter, reflecting that 

Claimant had a persistent cough, and cardiopulmonary exercise testing revealed 

Claimant’s exercise limitations were cardiac- not pulmonary-related. See R.R. at 

142a, 144a, 146a. Dr. Cohn also observed that Dr. Satti’s April 25, 2017 letter,

referenced RAD, not RADS. See R.R. at 143a. 

Dr. Cohn took Claimant’s medical history, during which Claimant 

informed Dr. Cohn that he “is always clearing his throat and having a cough[, and] 

[h]e complains of some shortness of breath and wheeze [sic].” R.R. at 145a. 

Claimant reported that he uses a Symbicort inhaler (Symbicort 80 - one puff twice 

per day; or Symbicort 160 - one puff at night), and a rescue inhaler that he uses up 

to three times per week. See R.R. at 143a. Claimant described to Dr. Cohn that he 

had four episodes of bronchitis (and four rounds of antibiotics) since July 2018. See

R.R. at 143a-144a. Claimant also shared that he experiences episodes of waking at 

night gasping for breath, which increased in frequency over the preceding three 

months. See R.R. at 144a. 

During the physical examination, Dr. Cohn discovered that Claimant’s 

chest was clear, and he notably did not cough during the IME. See R.R. at 145a. Dr. 
16

Cohn also observed that Claimant had a deviated septum and “some anxiety.” R.R. 

at 145a. Dr. Cohn’s IME report reflects that Claimant underwent spirometry testing; 

the first test was “entirely normal,” R.R. at 145a, and, after complaining of chest 

tightness, Claimant used his inhaler and repeated the spirometry, which “was 

essentially unchanged.” R.R. at 146a.

Dr. Cohn concluded:

At this point, [Claimant] complains of episodes of cough 

and shortness of breath with impaired exercise tolerance. 

His pulmonary function tests are entirely normal, and there

is no response to bronchodilator. He has some impairment 

of his exercise tolerance, but based on what I could find in 

Dr. Satti’s April 25, 2017 letter, his limitation is cardiac, 

not pulmonary. I cannot identify any objective evidence 

of a lung problem. He does have complaints of a cough 

with some sputum, but he also has a deviated nasal 

septum, and it’s possible that he has a post[-]nasal drip. 

His pulmonary function tests do not demonstrate evidence 

of asthma, and his methacholine challenge is characterized 

in [Dr. Satti’s] letter as negative. Unfortunately, his 

detailed results were not available.

. . . . I cannot demonstrate evidence of asthma to support 

a diagnosis of [RADS], and [Claimant’s] exercise study 

suggested that his shortness of breath with exertion was

related to cardiac disease or deconditioning, rather than to 

a pulmonary injury.

R.R. at 146a. In an April 1, 2019 letter, Dr. Cohn reported receiving and reviewing 

Claimant’s testimony and additional medical records, but declared that those 

documents did not alter his March 4, 2019 IME opinion. See R.R. at 150a.

“The law is well[]settled that ‘[t]he WCJ has exclusive authority to act 

as fact[-]finder, determine credibility of witnesses, and weigh the evidence.’” 

Rogele, Inc. v. Workers’ Comp. Appeal Bd. (Hall), 198 A.3d 1195, 1204 (Pa.

Cmwlth. 2018) (quoting Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, 

Inc.), 99 A.3d 598, 601 n.6 (Pa. Cmwlth. 2014)). “The WCJ, therefore, is free to 
17

accept or reject, in whole or in part, the testimony of any witness, including medical 

witnesses.” Griffiths v. Workers’ Comp. Appeal Bd. (Red Lobster), 760 A.2d 72, 76 

(Pa. Cmwlth. 2000). 

In this case, the WCJ made the following relevant factual findings:

2. By letter of August 22, 2016, Claimant placed the 

Employer on notice that he was advised by a 

pulmonologist that he suffered from RADS which is a 

form of occupational asthma. Claimant further stated that 

he believed the illness was from the direct exposure to soot 

and debris on the job. Claimant requested that this be 

recognized as a [WC] injury.

. . . .

9. This [WCJ] finds Claimant to be credible based largely 

on his demeanor and comportment at the hearing. No 

contrary factual testimony was presented. His testimony 

is consistent with the medical records. Of prime 

importance is his testimony that he was exposed for hours 

at a time to smoke and soot while investigating fire scenes 

and that he wore no respiratory protection during this 

exposure.

10. This [WCJ] finds as fact that [] Claimant suffers from 

asthma that is causally related to his occupation as a 

fireman. Claimant’s occupation is a substantial causal 

factor in his pulmonary condition. In totality, the reports 

of Drs. Rosado, Aaronson and Palatt support this finding. 

This [WCJ] rejects the contrary opinion of Dr. Cohn. In 

rendering this finding, this [WCJ] notes the following to 

be significant:

a. Dr. Cohn concludes that [] Claimant does not 

have a respiratory condition. He is the only 

physician to hold this conclusion and it is contrary 

to numerous treating physicians -- Drs. Rosado, 

Palatt, Aaronson[,] Satti[,] and Cohen. These 

physicians are from several different offices, yet 

all concur in the diagnosis of asthma. The 

diagnosis is corroborated by Claimant’s decrease

in peak flow on respiratory testing and also his 
18

deterioration when removed from the asthma

medication.

b. Dr. Palatt noted that occupational exposures are 

a major risk for pulmonary disease and the failure 

of Claimant to wear a mask could lead to the 

asthma. He also noted that Claimant has improved 

after removal from the work environment which 

further supports the causal relationship.

c. Dr. Aaronson stated that smoke and fumes can 

worsen symptoms, cause exacerbations and 

deterioration in pulmonary function. He cautioned 

that Claimant would benefit from a respirator 

when investigating fire scenes to protest [sic] 

himself from caustic material. This precaution

supports the causal relationship between the 

asthma and the work place.

d. Dr. Rosado clearly stated that she believed that 

the pulmonary issues had a casual [sic] 

relationship with the asthma.

e. Dr. Cohn evaluated Claimant only one time for 

purpose of this litigation. The other physicians 

were treating physicians with more exposure to 

Claimant.

WCJ Dec. at 3-6 (R.R. at 13a-16a). Although the WCJ did not reference the 

Presumption in his decision, and it is unclear whether he applied it to this case, he 

nevertheless concluded: “Claimant sustained the burden on this Claim Petition and 

established that he suffers asthma that is causally related to the work environment. 

Claimant is entitled to the payment of all reasonable and necessary medical expenses 

related to the work injury.” WCJ Dec. at 6 (R.R. at 16a) (emphasis added).

On appeal, neither the Board nor this Court may reweigh the evidence 

or the WCJ’s credibility determinations,13 see Sell v. Workers’ Comp. Appeal Bd. 

13 Specifically, “Section 422(a) [of the Act, 77 P.S. § 834,] does not permit a party to 

challenge or second-guess the WCJ’s reasons for credibility determinations. [Thus, u]nless made 

arbitrarily or capriciously, a WCJ’s credibility determinations will be upheld on appeal.” Pa. 

Uninsured Emps. Guar. Fund v. Workers’ Comp. Appeal Bd. (Lyle), 91 A.3d 297, 303 (Pa. 
19

(LNP Eng’g), 771 A.2d 1246 (Pa. 2001), and “‘[t]he WCJ’s findings will not be 

disturbed if they are supported by substantial, competent evidence.’” Rogele, Inc., 

198 A.3d at 1204 (quoting Stepp, 99 A.3d at 601 n.6). “‘Substantial evidence . . . 

[i]s such relevant evidence as a reasonable mind might accept as adequate to support 

a conclusion.’” Aqua Am., Inc. v. Workers’ Comp. Appeal Bd. (Jeffers), 199 A.3d 

482, 486 (Pa. Cmwlth. 2018) (quoting Gibson v. Workers’ Comp. Appeal Bd. (Armco 

Stainless & Alloy Prods.), 861 A.2d 938, 943 (Pa. 2004)).

“In performing a substantial evidence analysis, this 

[C]ourt must view the evidence in a light most favorable 

to the party [that] prevailed before the fact[-]finder [(i.e., 

Claimant)].” “Moreover, we are to draw all reasonable 

inferences which are deducible from the evidence in 

support of the fact[-]finder’s decision in favor of that 

prevailing party.” It does not matter if there is evidence in 

the record supporting findings contrary to those made by 

the WCJ; the pertinent inquiry is whether the evidence 

supports the WCJ’s findings.

3D Trucking Co., Inc. v. Workers’ Comp. Appeal Bd. (Fine & Anthony Holdings 

Int’l), 921 A.2d 1281, 1288 (Pa. Cmwlth. 2007) (citations omitted) (quoting 

Waldameer Park, Inc. v. Workers’ Comp. Appeal Bd. (Morrison), 819 A.2d 164, 168 

(Pa. Cmwlth. 2003)).

Here, the Board held:

[T]he WCJ erred in determining that Claimant met his 

burden establishing that his asthma was caused by his 

employment with [Employer] as a firefighter because 

Claimant failed to present a medical opinion

Cmwlth. 2014) (quoting Dorsey v. Workers’ Comp. Appeal Bd. (Crossing Constr. Co.), 893 A.2d 

191, 195 (Pa. Cmwlth. 2006) (citation omitted)). Capricious disregard “occurs only when the factfinder deliberately ignores relevant, competent evidence.” Williams v. Workers’ Comp. Appeal 

Bd. (USX Corp.-Fairless Works), 862 A.2d 137, 145 (Pa. Cmwlth. 2004). Capricious disregard, 

by definition, does not exist where, as here, the WCJ expressly considered and rejected evidence. 

See id.
20

unequivocally linking his asthma to his occupation as a 

firefighter. . . . 

. . . . Claimant’s physicians seem to be in agreement that 

Claimant has contracted a pulmonary condition.

Nevertheless, none of the medical records clearly and 

unambiguously attribute Claimant’s pulmonary conditions 

to his exposure to gas, heat, smoke, and fumes endured in 

his occupation as a firefighter. Although Dr. Rosado

indicated her belief that Claimant’s “pulmonary issues 

have something to do with his occupation” [(R.R. at 

106a)], Dr. Aaronson opined that[,] as a firefighter, 

Claimant was exposed to caustic materials [(see R.R. at 

98a)], and Dr. Palatt expressed that “occupational 

exposures are a major risk for pulmonary disease” [(R.R. 

at 93a)], none of these medical professionals indicated that 

it was their professional belief that Claimant’s exposure to 

smoke, heat, fumes, and gases in his work as a firefighter 

caused his pulmonary issues. Rather, these credible 

medical opinions leave doubt as to the direct cause of 

Claimant’s pulmonary condition, and as such are 

insufficient to meet Claimant’s burden of producing 

unequivocal medical evidence to support that his condition 

was work[]related.

Board Op. at 9-11 (R.R. at 32a-34a) (footnote omitted; emphasis added).

Pursuant to Section 419 of the Act,14 77 P.S. § 852, the Board is 

authorized to remand any case to the WCJ “where the WCJ fails to make findings 

on a crucial issue for a proper application of the law[,]” Commonwealth/Dep’t of 

Pub. Welfare v. Workers’ Comp. Appeal Bd. (Harvey), 960 A.2d 957, 964 (Pa. 

Cmwlth. 2008), aff’d, 993 A.2d 270 (Pa. 2010), “where the findings of fact fail to 

resolve a necessary issue raised by the parties[,]” Steinhouse v. Workers’ Comp. 

Appeal Bd. (A.P. Green Servs.), 783 A.2d 352, 356 (Pa. Cmwlth. 2001), and/or 

“where . . . [the] WCJ makes findings that are inconsistent with his legal 

conclusions[.]” Craftsmen v. Workers’ Comp. Appeal Bd. (Krouchick), 809 A.2d 

434, 438 (Pa. Cmwlth. 2002).

14 Added by Section 6 of the Act of June 26, 1919, P.L. 642. 
21

Here, the WCJ concluded that Claimant “sustained [his] burden . . . and 

established that he suffers asthma that is causally related to the work environment.” 

WCJ Dec. at 6 (R.R. at 16a). Indeed, the credited medical evidence supported the 

WCJ’s finding and conclusion that “Claimant suffers from asthma.”

15 WCJ FOF 

10, WCJ Dec. at 5 (R.R. at 15a) (emphasis added); see also Conclusion of Law 2, 

WCJ Dec. at 6 (R.R. at 16a). However, the WCJ reached this conclusion despite 

that Claimant put Employer on notice that he suffered from work-related RADS, see

R.R. at 91a, and he specified in his Claim Petition that the work injury for which he 

sought compensation was RADS. See R.R. at 1a; see also WCJ FOF 4, WCJ Dec. at 

3 (R.R. at 13a). The WCJ did not reference, let alone make a factual finding, that 

Claimant proved the only injury he specified in the Claim Petition - RADS. Nor did 

Employer challenge the WCJ’s finding of asthma or conclusion of law related 

thereto. The record is not clear, and the WCJ did not expressly conclude, that RADS 

and asthma are one and the same.16 Considering that Claimant had the burden of 

proving all of the elements necessary to support his claim for compensation, see 

Hawbaker v. Workers’ Comp. Appeal Bd. (Kriner’s Quality Roofing Servs. & 

Uninsured Emp. Guar. Fund), 159 A.3d 61 (Pa. Cmwlth. 2017), and it is does not 

appear that the WCJ amended Claimant’s Claim Petition injury description,17 the 

WCJ failed to address a key issue. 

15 Viewing the evidence in a light most favorable to Claimant, and drawing all reasonable 

inferences in Claimant’s favor, as this Court must, we hold that the WCJ’s findings that Claimant 

proved he has asthma are supported by record evidence and, thus, the Board erred to the extent 

that it made any findings of fact contrary to those made by the WCJ on that subject. 

16 In fact, only Claimant’s August 22, 2016 letter to Employer declared that RADS “is a 

form of occupational asthma.” See R.R. at 91a.

17 “[L]iberal pleading rules apply in [WC] matters.” Sloane v. Workers’ Comp. Appeal Bd. 

(Children’s Hosp. of Phila.), 124 A.3d 778, 787 (Pa. Cmwlth. 2015). Section 131.35(a) of the 

Board’s Regulations declares: “A party has the right to amend a pleading at any time in a 

proceeding before a [WCJ] unless the [WCJ] determines that another party has established 

prejudice as a result of the amendment.” 34 Pa. Code § 131.35(a). Although a claimant may not 

be permitted to amend a claim petition to assert an entirely new injury after the limitations period 
22

Rather than remanding on that error, the Board further exacerbated the 

matter. Notably, the Board agreed Claimant’s evidence supported that he suffers

from a pulmonary condition, but disputed that it was caused by Claimant’s 

employment, declaring that Claimant’s causation evidence was equivocal.18 

Moreover, the Board addressed the Presumption when it does not appear that it was

raised before or considered by the WCJ.19 

Importantly, regardless of whether Claimant pled and/or proved he has 

RADS, asthma, or a pulmonary condition, he “is entitled to the [rebuttable 

P]resumption that the disease arose during the course of his employment[,]” City of 

Phila., 29 A.3d at 769, only if he has an occupational disease listed in Section 108

of the Act. Section 108 of the Act specifies: “The term ‘occupational disease’ . . . 

shall mean only the following diseases. . . . (o) [d]iseases of the . . . lungs . . . ”

suffered by firefighters. 77 P.S. § 27.1 (emphasis added). RADS, asthma, and

has passed, this Court has held that, when the amendment does not change the theory of recovery, 

such that the employer has been on notice and has been defending the identical claim since the 

original filing, the amendment will not be time-barred. See Sota Constr. Servs., Inc. v. Workers’ 

Comp. Appeal Bd. (Czarnecki, Zawilla d/b/a Gorilla Constr.), 224 A.3d 63 (Pa. Cmwlth. 2019); 

see also Findlay Refractories v. Workmen’s Comp. Appeal Bd., 415 A.2d 1270 (Pa. Cmwlth. 

1980). 

18

“Generally, . . . unequivocal medical evidence [is necessary to] establish[] a causal 

connection between the alleged injury and the work incident” when the connection is not obvious. 

Roundtree, 116 A.3d at 144. This Court has explained that, although Section 422(c) of the Act 

authorized the WCJ to admit unsworn hearsay medical reports in lieu of medical testimony, 

“[w]hether the content of the forms sufficiently address the matters at issue, and whether the forms 

are persuasive are questions relating to the credibility and to weight of this evidence rather than to 

its admissibility.” Joy Glob., Inc. v. Workers’ Comp. Appeal Bd. (Hogue), 876 A.2d 1098, 1105 

(Pa. Cmwlth. 2005). Therefore, Section 422(c) of the Act does not relieve a claimant of his burden 

to offer substantial unequivocal medical evidence to support the allegations in his claim petition. 

Medical reports that merely summarize a claimant’s treatment and do not provide a foundation 

and/or conclusion regarding causation may not satisfy that burden.

19 Unequivocal medical evidence is also necessary if the Presumption does not apply. See

Craftex Mills, Inc. of PA v. Workers’ Comp. Appeal Bd. (Markowicz), 901 A.2d 1077 (Pa. Cmwlth. 

2006) (when a claimant does not have the benefit of the Presumption, he has the normal burden of 

presenting unequivocal medical evidence of the illness and causation by workplace exposure). 
23

pulmonary condition are not specifically listed as occupational diseases in Section 

108 of the Act, and it is not clear whether the General Assembly intended that 

“[d]iseases of the . . . lungs” referred to in Section 108(o) of the Act include RADS,

asthma, or a pulmonary condition. Id. Neither the WCJ nor the Board addressed 

that key legal issue. 

Regardless, this Court may not ignore a glaring error of 

law relating to the application of an incorrect legal 

standard upon the very issue before [it]. In examining 

questions of law, our review is plenary. Tomaskevitch v. 

Specialty Rec[s.] Corp., 717 A.2d 30 (Pa. Cmwlth. 1998). 

Even when neither party raises the issue, we may review a 

case upon the correct legal principles that apply in 

fulfillment of our review function. See Mayo v. 

Lichtenwalner, . . . 557 A.2d 798 ([Pa. Cmwlth.] 1989). 

We must exercise our appellate review consistent with 

established precedent. Burger v. Zoning Hearing B[d.] of 

the Mun[.] of Penn Hills, . . . 485 A.2d 879 ([Pa. Cmwlth.] 

1984).

Donovan v. Workers’ Comp. Appeal Bd. (Acad. Med. Realty), 739 A.2d 1156, 1161 

(Pa. Cmwlth. 1999); see also Malecki v. Workers’ Comp. Appeal Bd. (Franklin Reg’l 

Sch. Dist.) (Pa. Cmwlth. No. 582 C.D. 2020, filed Mar. 26, 2021).

20

 

Here, key to the Board’s and this Court’s review is whether Claimant 

proved his entitlement to WC benefits. Specifically, whether he proved the injury 

he alleged in the Claim Petition, and whether it was causally related to his 

employment (or he was entitled to the Presumption). Because those issues cannot 

be resolved by this Court, this matter must be remanded to the Board and the WCJ

for application of the correct legal principles.

20 Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code 

§ 69.414(a), an unreported panel decision of this Court issued after January 15, 2008, may be cited 

for its persuasive value, but not as binding precedent. Malecki is cited for its persuasive value.
24

Conclusion

Based on the foregoing, this Court reverses the Board’s order and 

remands the matter to the Board to remand to the WCJ for further proceedings 

consistent with this Opinion. 

_________________________________

ANNE E. COVEY, Judge

Senior Judge Leadbetter concurs in the result only.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Peter DiLaqua, :

Petitioner :

:

v. :

:

City of Philadelphia Fire Department :

(Workers’ Compensation Appeal :

Board), : No. 1262 C.D. 2020

Respondent :

O R D E R

AND NOW, this 23rd day of December, 2021, the Workers’ 

Compensation Appeal Board’s (Board) December 16, 2020 order is reversed, and 

the matter is remanded to the Board to remand to the Workers’ Compensation Judge

for further proceedings consistent with this Opinion.

Jurisdiction is relinquished.

_________________________________

ANNE E. COVEY, Judge