V. Regan v. WCAB (City of Philadelphia) ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Vincent Regan, :
:
Petitioner :
:
v. : No. 141 C.D. 2018
: Submitted: June 15, 2018
Workers' Compensation Appeal :
Board (City of Philadelphia), :
:
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: January 18, 2019
Theresa Regan (Claimant) petitions for review of the January 10, 2018
order of the Workers’ Compensation Appeal Board (Board), which affirmed the
April 14, 2017 remand decision of a workers’ compensation judge (WCJ) denying
the claim petitions filed by Vincent Regan (Decedent) and Claimant’s fatal claim
petition. For the following reasons, we vacate and remand.
Decedent worked for the City of Philadelphia (Employer) as a
firefighter for 34 years before his retirement in 2008. On July 9, 2012, Decedent
filed a claim petition pursuant to Section 108(r) of the Workers’ Compensation Act
(Act),1 alleging that he sustained metastatic lung cancer as a result of exposure to
1
Act of June 2, 1915, P.L. 736, as amended, added by the Act of October 17, 1972, P.L.
930, 77 P.S. §27.1(r).
Group 1 category carcinogens in smoke and diesel exhaust fumes while working as
a firefighter. He alleged the injury date as the last date of exposure, August 13, 2008,
the day he stopped working. Decedent filed a second claim petition under Section
108(r) on July 9, 2012, alleging that he sustained prostate cancer on January 4, 2007,
also as a result of exposures to Group 1 carcinogens while working as a firefighter.
Decedent died on September 29, 2012. On November 26, 2012, Claimant,
Decedent’s widow, filed a fatal claim petition alleging that Decedent died from
metastatic lung cancer.
Claimant testified that Decedent joined the fire department after serving
in the army for three years. She said that Decedent started smoking in 1974 and
estimated that he smoked about half a pack a day until 2008. Claimant stated that
Decedent’s father was a smoker and was diagnosed with lung cancer as well as
prostate cancer when he was 87 years old. She said that Decedent’s sister also had
cancer and believed that Decedent’s uncles had died of cancer as well.
Claimant testified that when Decedent returned from firefighting, she
could smell smoke from his soot-covered fire gear when he opened his car. She said
that soot came out when Decedent blew his nose. Claimant also submitted
deposition testimony from two of Decedent’s fellow firefighters, Joseph Hitchens
and Gene Lancaster. Hitchens testified that he and Decedent fought all kinds of fires
together, including house fires, car fires, train fires, and rubbish fires. He added that
Decedent was involved in ventilation, search and rescue, and overhaul and was
exposed to smoke at every stage of the firefighting process.
Hitchens noted that in the 1990s, the use of a self-contained breathing
apparatus became mandatory during interior firefighting. However, he said, it was
quickly discovered that the mask and pack made some situations more dangerous,
2
and, therefore, firefighters were no longer required to wear them. He stated that
cigarette smoking was common in the firehouse and he observed Decedent smoking
occasionally. Hitchens testified that the firehouse did not have a diesel fuel capture
system for the fire trucks’ exhaust until near the end of Decedent’s career. He said
that the walls and ceiling of the building were covered with soot and grime.
Hitchens noted that Decedent eventually became a battalion chief,
which meant that he drove the chief engine but did not participate in overhaul
operations. Hitchens testified that in this new role, Decedent was on the scene of
even more fires than before and still exposed to smoke. Hitchens stated there was
no doubt in his mind that Decedent was exposed to smoke, diesel fuel, soot, and dirty
bunker gear throughout his entire career as a firefighter. Lancaster confirmed
Hitchens’ testimony, affirming the firefighters’ exposures to smoke, soot, diesel
emissions, and building materials.
Claimant also presented the deposition testimony of Barry Singer,
M.D., who is board certified in internal medicine, hematology, and medical
oncology. Dr. Singer noted that he is not a specialist in occupational medicine, nor
a toxicologist or an epidemiologist. He stated that he is not engaged in primary
research on the matter of firefighters and cancer and he has not published on the
etiology of cancer.
Dr. Singer testified that he reviewed extensive literature regarding
firefighters’ exposures to carcinogens, including the International Agency for
Research on Cancer (IARC) monographs. He explained that the IARC monographs
identify environmental factors that can increase the risk of cancer, including
chemicals, complex mixtures, occupational exposures, physical agents, biological
agents, and lifestyle factors. He stated that he has been reviewing medical records
3
and affidavits regarding exposures for workers’ compensation purposes since 2008
and has been able to provide opinions about the cause of each individual’s cancer
based on the aforementioned information.
Dr. Singer testified that his opinions on the causes of cancer are based
on his knowledge of the relationship between firefighting and cancer as well as
information about each individual firefighter. He said he reviews a patient’s history
and risk factors, and he considers the patient’s medical care, both before and after
his or her cancer diagnosis. He testified that he has relied upon journals and other
articles from specialized cancer doctors, such as epidemiologists and toxicologists,
regarding carcinogens to which firefighters are commonly exposed. He stated that
he also reviewed journal articles written by retired firefighters about their exposures
to certain chemicals throughout their careers. Dr. Singer testified that there are
thousands of reported studies on the relationship between firefighting and cancers.
He specifically referenced four studies in his reports, an article authored by Baris
and Bates titled “A Cohort Mortality Study” and articles authored by Howe and
Birch. Dr. Singer acknowledged that several studies, including the Baris and Bates
and Howe and Birch studies, found no association between firefighting and an
increased risk of cancer. He testified that it is beyond his expertise to advise which
study is more reliable.
Citing his knowledge of literature and review of workers’
compensation files, Dr. Singer opined that firefighters are exposed to Group 1
carcinogens in diesel fuel fumes, smoke, and soot, including PAHs (polycyclic
aromatic hydrocarbons), PCBs (polychlorinated biphenyls), and arsenic. He
indicated that diesel fuel alone contains carcinogens such as benzene, arsenic,
formaldehyde, and nickel. Dr. Singer testified that the constellation of exposures
4
increases firefighters’ risk of certain cancers, and he believes that the effects of
smoking would be synergistic or in addition to the impact of exposure as a
firefighter.
Dr. Singer issued a report and offered testimony specific to Decedent.
He reviewed multiple records pertaining to Decedent including an affidavit prepared
prior to his death, his family medical history, records from his treating doctors, and
any hospital records. Dr. Singer also reviewed the testimony from Lancaster and
Hitchens. He testified that, for this case, he reviewed general literature regarding
firefighting and cancer as well as the IARC monographs on firefighters and the list
of carcinogens found in smoke and diesel fuel. He testified that the studies he
reviewed support both of his opinions that there is an increased risk of prostate
cancer as well as an increased incidence of lung cancer in firefighting. He stated
that epidemiology was not a necessary element to determine the cause of Decedent’s
lung cancer since Decedent had been exposed to carcinogens. Dr. Singer believed
that, while Decedent was a heavy smoker, he was exposed to fire and its
contaminants significantly and that both factors together would be synergistic in the
development of Decedent’s lung cancer. See Exhibit C-8.
On cross-examination, Dr. Singer acknowledged that he did not
mention Decedent’s smoking history or the role that cigarettes play in the etiology
of lung cancer. He agreed that 90% of all lung cancer cases in men are related to
smoking. He agreed that there are approximately 3,000 chemicals in cigarette smoke
and 55 of them are recognized as Group 1 carcinogens. Dr. Singer acknowledged
that a heavy smoker such as Decedent, smoking over 67 packs a year, carries a 40-
fold increase in the risk of lung cancer. He stated that consistent with the magnitude
of his smoking, Decedent had chronic obstructive pulmonary disease before his lung
5
cancer diagnosis. Dr. Singer conceded that Decedent could have developed lung
cancer just from his smoking habits.
Dr. Singer agreed that none of the articles he relied on in his report
could conclusively find that firefighting causes cancer. Dr. Singer acknowledged
that there are no known studies finding any relationship between firefighting and
lung cancer that even come close to any level of statistical significance and that there
is no published research that supports his opinion that firefighting exposures and
cigarette smoking interact synergistically. He recognized that the articles he relied
on failed to control for family history. Additionally, he testified that no study
examining lung cancer in firefighters has been designed to control for cigarette
smoking. He stated that his opinion was not based on any epidemiologic literature
but, rather, on his personal understanding of Group 1 carcinogens and potential
firefighters’ exposure to such chemicals.
Employer presented the deposition of Tee Guidotti, M.D., who is board
certified in internal, pulmonary, and occupational medicine, and trained in the fields
of epidemiology and toxicology. Dr. Guidotti has performed and published peer-
reviewed research studies and has spent time investigating the relationship between
firefighters and occupational and environmental exposures. He testified that he
reviewed Dr. Singer’s qualifications, reports, methodology, and his first deposition.
Dr. Guidotti opined that Dr. Singer was not qualified to interpret the studies he
reviewed and that the meta-analysis Dr. Singer relied on did not meaningfully
summarize the studies they incorporate. Dr. Guidotti also believed that Dr. Singer’s
background did not support a meaningful review of the literature in this scientific
field. Dr. Guidotti further testified that Dr. Singer did not use an appropriate
6
methodology, or any discernable methodology at all, to determine if there was a
relationship between firefighters and their cancer.
Dr. Guidotti testified that age, family history, race, and ethnicity are all
factors associated with increased risk of prostate cancer. He stated that prostate
cancer is the most commonly diagnosed cancer in men and is not normally connected
to occupational exposures. He explained that prostate cancer is a disease of aging
rather than environmental influences. He added that there is no evidence to support
a conclusion that there is a relationship between firefighting and prostate cancer.
Employer also submitted the report on prostate cancer by Janet Stanford, Ph.D.,
which indicated that the well-established risk factors for prostate cancer include age,
race, ethnicity, and family history.
Employer offered testimony of Andre Haas, M.D., Ph.D., a specialist
in interventional pulmonary and thoracic oncology. Dr. Haas regularly publishes on
immunotherapies for thoracic malignancies and on the diagnostic and therapeutic
components of evaluating patients with lung nodules and masses, and his practice
specializes in differentiation and the diagnosis of lung cancers. Dr. Haas reviewed
Decedent’s medical records, Decedent’s affidavit, and Dr. Singer’s deposition.
Dr. Haas had no doubt that Decedent died of lung cancer. Dr. Haas
testified that smoking increases the risk of cancer substantially and if a person
smokes a pack a day for 30 or so years, the risk association can raise 26-fold. Dr.
Haas was provided with evidence that Decedent smoked about 40-50 packs a year.
Dr. Haas stated that while certain epidemiologic studies reveal potential
exposures of firefighters to carcinogens in fire smoke and diesel truck exhaust, he is
not aware of any studies that show a statistically significant relationship between
firefighting and lung cancer. He testified that simple exposure does not correlate to
7
the development of cancer. Rather, he explained, it is the quantity of the exposure
to a certain carcinogen and the amount over time that is important. Dr. Haas
acknowledged that there is literature to suggest that smoking and asbestos exposure
could have a synergistic effect, but he observed that nothing in Decedent’s records
indicates any asbestos exposures. Dr. Haas opined that Decedent’s exposure to
carcinogens in fire and fuel exhaust during his firefighting career were not
substantial contributing factors in the development of his lung cancer. Instead, Dr.
Haas believed that Decedent’s known tobacco usage was the primary etiologic agent
of his lung cancer. Further, Dr. Haas testified that Decedent had adenocarcinoma,
which is the most common type of cancer associated with smoking cigarettes.
On cross-examination, Dr. Haas agreed that lung cancer is a type of
cancer that can be caused by exposure to Group 1 carcinogens present in smoke and
exhaust fumes. Further, he agreed that it is possible that firefighting can cause lung
cancer when there is substantial lasting exposure to carcinogens. He also
acknowledged that Decedent probably came into contact with these carcinogens in
smoke and diesel fuel emissions. In sum, Dr. Haas testified that epidemiologic
studies have established that exposure to tobacco carcinogens significantly increases
the risk for developing lung cancer, whereas no epidemiological data suggests that
carcinogen exposure during firefighting was causally related to the development of
lung cancer.
In a December 24, 2014 decision, the WCJ accepted Claimant’s
testimony regarding the state of Decedent’s gear, his employment, and his smoking
history as credible. She also credited Hitchens’ and Lancaster’s testimony regarding
the firefighting procedures and practices utilized throughout Decedent’s career. The
WCJ accepted Dr. Singer’s testimony concerning the causal relationship between
8
Decedent’s exposure to Group 1 carcinogens and his lung cancer. The WCJ found
that the opinions of Dr. Guidotti regarding the methods for determining general
causation were not material in this case. Finally, the WCJ accepted the testimony of
Dr. Haas to the extent it was consistent with Dr. Singer’s testimony. The WCJ found
that Claimant was entitled to the presumption that his lung cancer was work-related
pursuant to Section 108(r) and Section 301(f) of the Act.2 Accordingly, the WCJ
granted the claim and fatal claim petitions.
Employer appealed to the Board, which determined that the WCJ did
not render any findings as to whether Decedent or Claimant complied with the notice
provisions of the Act, nor did she render any findings as to whether the petitions
were filed within 300 weeks of Decedent’s last exposure as required by Section
301(f) of the Act. The Board remanded the matter with instructions to the WCJ to
render a determination on these issues. The Board specifically instructed the WCJ
to render findings of fact, conclusions of law, and credibility determinations as
necessary and to reconsider her decision to grant the claim and fatal claim petitions.
In her April 14, 2017 remand decision, the WCJ credited the testimony
of Dr. Haas and Dr. Guidotti, noting that their credentials include experience
researching and examining epidemiologic studies. The WCJ rejected Dr. Singer’s
testimony as not credible, explaining that he has no credentials or experience in
researching or conducting epidemiologic studies. The WCJ also concluded that Dr.
Singer’s testimony was not competent because he was not Decedent’s treating
physician, he does not engage in research specifically regarding firefighters, he has
not researched the etiology of cancer, and he could not say whether a particular
firefighter had any exposure to a given carcinogen. The WCJ determined that Dr.
2
77 P.S. §414.
9
Singer did not thoroughly consider other factors that might causally contribute to
cancer, such as race, diet, and smoking, and that he relied on studies that he
admittedly did not completely read. Additionally, the WCJ rejected Dr. Singer’s
opinion that Decedent’s cancer was caused by exposure to any Group 1 carcinogen
because he had no data to support his opinion that Decedent was directly exposed to
any Group 1 carcinogens that can cause Decedent’s particular type of cancer.
Consequently, the WCJ concluded that Claimant failed to meet her burden to
establish entitlement to benefits under Section 301(c),3 Section 108(r) or (o), or
Section 301(f) of the Act,4 because she did not submit competent or credible
evidence establishing the cause of Decedent’s cancer or the date of his last exposure.
The WCJ found that Employer’s evidence established that Decedent’s
prostate cancer and lung cancer were not related to firefighting but were related to
other identifiable risk factors, such as family history of prostate cancer and his
history of heavy smoking. Therefore, the WCJ concluded that even if the
presumption of causation afforded under Section 301 were triggered, Employer
successfully rebutted the presumption with competent evidence. Consequently, the
WCJ denied the claim and fatal claim petitions.
Claimant appealed the remand decision to the Board. Relying on our
decision in City of Philadelphia Fire Department v. Workers’ Compensation Appeal
Board (Sladek), 144 A.3d 1011 at 1020 (Pa. Cmwlth. 2016) (Sladek I), the Board
affirmed.
3
Section 301(c) of the Act, added by the Act of July 7, 2011, 77 P.S. §411, defines the
terms “injury” and “injury arising in the course of employment” as including occupational disease
as defined in Section 108 of the Act, 77 P.S. §27.1.
4
77 P.S. §27.1(o), (r), and 301(f) of the Act, 77 P.S. §414.
10
On appeal to this Court,5 Claimant argues that the Board erred in
affirming the WCJ’s denial of the claim and fatal claim petitions. Claimant asserted
that: (1) the WCJ’s determinations were not supported by substantial or competent
evidence or pertinent authority; and (2) the WCJ’s decision was not a reasoned
decision because the credibility determinations on remand were inconsistent with
the first decision.
We begin our analysis with a review of the relevant statutory
provisions. Section 301(c)(2) of the Act states that a compensable “injury” includes
“occupational disease as defined in section 108 of this act.” 77 P.S. §411(2). Section
108(r) of the Act recognizes as an occupational disease cancer suffered by a
firefighter “which is caused by exposure to a known carcinogen which is recognized
as a Group 1 carcinogen by the [IARC].” 77 P.S. §27.1(r) (emphasis added).
Additionally, Section 301(e) of the Act establishes a “presumption
regarding occupational disease” that applies to any occupational disease. The
section states:
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.
Added by the Act of October 17, 1972, P.L. 930, 77 P.S. §413 (emphasis added). A
claimant who suffers a disease identified in Section 108 of the Act does not have to
prove that the occupational disease was caused by workplace exposure.
5
Our scope of review is limited to determining whether necessary findings were supported
by substantial evidence, whether an error of law was committed, or whether constitutional rights
were violated. Minicozzi v. Workers’ Compensation Appeal Board (Indus. Metal Planting, Inc.),
873 A.2d 25, 28 n.1 (Pa. Cmwlth. 2005).
11
Section 301(f) of the Act states in part:
Compensation pursuant to cancer suffered by a firefighter
shall only be to those firefighters who have served four or
more years in continuous firefighting duties, who can
establish direct exposure to a carcinogen referred to in
section 108(r) relating to cancer by a firefighter and have
successfully passed a physical examination prior to
asserting a claim under this subsection or prior to engaging
in firefighting duties and the examination failed to reveal
any evidence of the condition of cancer.
Added by the Act of October 17, 1972, P.L. 930, 77 P.S. §414. Thus, in order to
demonstrate that a firefighter’s cancer is an occupational disease compensable under
the Act, the firefighter must show that his type of cancer is “caused by exposure to
a known carcinogen which is recognized as a Group 1 carcinogen.” 77 P.S. §27.1(r).
If a firefighter establishes that his type of cancer is an occupational disease, he may
avail himself of the statutory presumption in Section 301(f) of the Act, provided that
he filed his claim within 300 weeks of his last day of employment. The statutory
presumption relieves the firefighter of the need to prove that his cancer was caused
by his workplace exposure and not another cause. 77 P.S. §413. An employer may
rebut this presumption through substantial competent evidence that shows that the
firefighter’s cancer was not caused by the firefighter’s occupation. 77 P.S. §414.
This Court first interpreted Section 108(r) of the Act in Sladek I. In that
case, we rejected the Board’s interpretation of Section 108(r) to mean that a
firefighter’s cancer is presumed work-related if the firefighter was exposed to a
Group 1 carcinogen at work, regardless of whether the firefighter’s cancer is a type
of cancer known to be caused by exposure to Group 1 carcinogens. Instead, we
concluded in Sladek I that Section 108(r) of the Act requires the firefighter to show
that the Group 1 carcinogens to which he was exposed have been shown to cause the
12
type of cancer suffered by the firefighter.
Subsequently, however, our Supreme Court reversed our decision and
remanded the matter for further proceedings. City of Philadelphia Fire Department
v. Workers’ Compensation Appeal Board (Sladek), ___ A.3d ___ (Pa., No 13 EAP
2017, filed October 17, 2018) (Sladek II). In doing so, the Court held that in order
for a claimant to establish that he or she has an “occupational disease” as defined in
Section 108(r) of the Act, a claimant must initially demonstrate only that his or her
cancer is a type of cancer that is capable of being caused by exposure to a known
IARC Group I carcinogen. The Court reasoned as follows:
The express language of Section 108(r), namely that the
claimant has a “cancer . . . which is caused by exposure to
a known (Group 1) carcinogen” clearly imposes an initial
burden of causation on the claimant. Importantly,
however, the provision only requires the claimant to
establish a general causative link between the claimant's
type of cancer and a Group 1 carcinogen. In other words,
the claimant must produce evidence that it is possible that
the carcinogen in question caused the type of cancer with
which the claimant is afflicted. It does not require the
claimant to prove that the identified Group 1 carcinogen
actually caused claimant's cancer. Section 108(r)
embodies a legislative acknowledgement that firefighting
is a dangerous occupation that routinely exposes
firefighters to Group 1 carcinogens that are known to
cause various types of cancers. The “general causation”
requirement under Section 108(r) constitutes a recognition
that different types of cancers have different etiologies and
it weeds out claims for compensation for cancers with no
known link to Group 1 carcinogens. The burden imposed
by Section 108(r) is not a heavy burden.
Sladek II, ___ A.3d at ____ (slip op. at 17-18) (emphasis in original) (footnotes
omitted).
13
Additionally, in Sladek II the Court held that “epidemiological evidence
is clearly relevant and useful in demonstrating general causation.” Id., ___ A.3d at
___, slip op. at 18. However, while the Court held that a claimant may rely on
epidemiological evidence to meet his or her initial burden and trigger the statutory
presumption of compensability, the Court also concluded that such evidence is not
sufficient for an employer to rebut the presumption. Id., ___ A.3d at ___, slip op. at
19-20.
In this appeal, Claimant argues that the WCJ’s conclusion that she did
not meet her initial burden and failed to establish entitlement to the presumption is
not supported by substantial competent evidence. Additionally, Claimant argues that
Employer failed to rebut the presumption to which she was entitled.
In assessing the record evidence in this case, the Board and the WCJ
relied on our analysis in Sladek I, which is no longer controlling. Consequently, we
are compelled to vacate and remand the Board’s decision. Because the record
includes evidence presented by both parties that is relevant under the Supreme
Court’s analysis in Sladek II, the Board is to remand the matter to the WCJ for new
findings and conclusions consistent with that opinion.6
MICHAEL H. WOJCIK, Judge
Judge Fizzano Cannon did not participate in the decision of this case.
6
Claimant also contends that the WCJ failed to issue a reasoned decision because her
credibility determinations were inconsistent with her 2014 decision and order. Section 422(a) of
the Act requires the WCJ to issue a reasoned decision. 77 P.S. §834. A reasoned decision is one
that allows for adequate appellate review without further elucidation. Daniels v. Workers’
Compensation Appeal Board (Tristate Transport), 828 A.2d 1043, 1052 (Pa. 2003). A WCJ is not
required to reach the same result on remand and is generally free to revise any credibility
determinations. Teter v. Workers’ Compensation Appeal Board (Pinnacle Health System), 886
A.2d 721, 723 (Pa. Cmwlth. 2005).
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Vincent Regan, :
:
Petitioner :
:
v. : No. 141 C.D. 2018
:
Workers' Compensation Appeal :
Board (City of Philadelphia), :
:
Respondent :
ORDER
AND NOW, this 18th day of January, 2019, the order of the Workers’
Compensation Appeal Board, dated January 10, 2018, is VACATED, and this matter
is REMANDED to the Workers’ Compensation Appeal Board for further remand to
the workers’ compensation judge in accordance with the foregoing opinion.
Jurisdiction relinquished.
__________________________________
MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Vincent Regan, :
Petitioner :
:
v. : No. 141 C.D. 2018
: Submitted: June 15, 2018
Workers’ Compensation Appeal :
Board (City of Philadelphia), :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
DISSENTING OPINION
BY JUDGE BROBSON FILED: January 18, 2019
Although I recognize the Pennsylvania Supreme Court’s decision in
City of Philadelphia Fire Department v. Workers’ Compensation Appeal Board
(Sladek), 195 A.3d 197 (Pa. 2018) (Sladek II), as controlling for purposes of the
proper construction of Section 108(r) of the Workers’ Compensation Act (Act),1
1
Act of June 2, 1915, P.L. 736, as amended, added by the Act of October 17, 1972,
P.L. 930, 77 P.S. § 27.1(r). Section 108 of the Act lists a number of occupational diseases that
constitute a compensable injury under the Act. Among them is “[c]ancer suffered by a firefighter
which is caused by exposure to a known carcinogen which is recognized as a Group 1 carcinogen
by the International Agency for Research on Cancer [IARC].” (Emphasis added.) A substance or
exposure is considered carcinogenic based on its propensity to cause cancer in humans. The IARC,
which is part of the World Health Organization, classifies substances and exposures based on their
cancer-causing potential. Group 1 carcinogens are those substances and exposures that the IARC
considers carcinogenic to humans. Group 2A, by contrast, includes substances and exposures
considered as “probably” carcinogenic. Group 2B includes substances and exposures that are
“possibly” carcinogenic to humans. Group 3 includes substances and exposures that are
I find it difficult to distinguish between the Supreme Court construction and that of
this Court in City of Philadelphia Fire Department v. Workers’ Compensation
Appeal Board (Sladek), 144 A.3d 1011 (Pa. Cmwlth. 2016) (Sladek I), which the
Supreme Court reversed in Sladek II. See Sladek II, 195 A.3d at 212-13
(Saylor, C.J., dissenting) (rejecting Claimant’s false premise that Commonwealth
Court required claimant to prove specific causation). Accordingly, I would analyze
and resolve this appeal based on a harmonious reading of the two opinions.
Workplace causation is required in order for any disabling injury to be
compensable under the Act. See, e.g., Whitmoyer v. Workers’ Comp. Appeal Bd.
(Mountain Country Meats), 186 A.3d 947, 948 (Pa. 2018) (“The [Act] makes an
employer liable for paying the disability benefits and medical expenses of an
employee who sustains an injury in the course of his or her employment.”). This is
true regardless of whether the disabling injury is acute or develops over a prolonged
period of time, as in the case of an occupational disease. The burden falls on the
claimant to establish a causal relationship between his employment and the disabling
injury. See, e.g., Cardyn v. Workers’ Comp. Appeal Bd. (Heppenstall), 534 A.2d
1389, 1390 (Pa. 1987). Section 108(r) of the Act clearly incorporates this causation
“unclassifiable” as to carcinogenicity in humans. Finally, Group 4 includes substances and
exposures that are “probably not” carcinogenic to humans.
(https://www.cancer.org/cancer/cancer-causes/general-info/known-and-probable-human-
carcinogens.html) (last visited Dec. 28, 2018).
I also wish to emphasize that Section 108(r) of the Act does not inquire as to whether
firefighting, as an occupation, is a Group 1 carcinogen. In her findings of fact in this case, the
Workers’ Compensation Judge (WCJ) noted that the IARC has categorized the profession of
firefighting as a Group 2B, not Group 1, carcinogen. Such a finding, however, is irrelevant. The
text of the Section 108(r) expressly allows firefighters to pursue benefits under the Act to the extent
they suffer from a cancer linked to a Group 1 carcinogen, regardless of whether the profession
itself is classified as such.
PKB-2
aspect to compensation under the Act, as it commands that cancer suffered by a
firefighter is an occupational disease under the Act only where the cancer “is caused
by” exposure to a Group 1 carcinogen.
With respect to occupational diseases generally, Section 301(e) of the
Act2 provides for a rebuttable evidentiary presumption of workplace causation where
the claimant “was employed in any occupation or industry in which the occupational
disease is a hazard.” The Act, however, includes a specific evidentiary presumption
for firefighters who suffer from cancer. Under Section 301(f) of the Act,3 workplace
causation and, thus, compensation are presumed where the firefighter
claimant (a) “served four or more years in continuous firefighting duties,” (b) “can
establish direct exposure to a carcinogen referred to in [S]ection 108(r) [of the Act]
relating to cancer by a firefighter,” and (c) “successfully passed a physical
examination prior to asserting a claim . . . or prior to engaging in firefighting duties
and the examination failed to reveal any evidence of the condition of cancer.” The
employer may rebut this presumption with “substantial competent evidence that
shows that the firefighter’s cancer was not caused by the occupation of firefighting.”
Section 301(f) of the Act.
With respect to causation, in Sladek I, this Court held, inter alia, that a
claimant firefighter, seeking the benefit of the evidentiary presumption of
Section 301(f) of the Act, need not establish actual causation—i.e., that the
claimant’s firefighting service actually caused the claimant’s cancer. Rather, the
claimant need only show “direct exposure” to a Group 1 carcinogen in the course of
firefighting that is linked to the type of cancer from which the claimant suffers. In
2
Added by the Act of October 17, 1972, P.L. 930, 77 P.S. § 413.
3
Added by the Act of July 7, 2011, P.L. 251, 77 P.S. § 414.
PKB-3
this regard, we held only that a claimant needed to establish a general causative link
between a carcinogen to which he was exposed and the cancer from which he suffers.
We explained:
It was incumbent upon [the c]laimant to prove that his
malignant melanoma is a type of cancer caused by the
Group 1 carcinogens to which he was exposed in the
workplace to establish an occupational disease. Only then
do the presumptions in Section 301(e) and (f) of the Act
come into play.
Sladek I, 144 A.3d at 1021-22 (emphasis added). Nowhere in Sladek I did this Court
hold that the claimant must go a step further and “prove that the identified Group 1
carcinogen actually caused [the] claimant’s cancer.” Sladek II, 195 A.3d at 208
(emphasis removed).
I read the Supreme Court’s decision in Sladek II as requiring nothing
more and nothing less. First, the claimant firefighter must establish that he or she
has an “occupational disease,” as defined in Section 108(r) of the Act. The Supreme
Court held that, in order to do so, the claimant need only “establish a general
causative link between the claimant’s type of cancer and a Group 1 carcinogen. In
other words, the claimant must produce evidence that it is possible that the
carcinogen in question caused the type of cancer with which the claimant is
afflicted.” Id. (emphasis added) (original emphasis removed). As the Supreme
Court recognized in Sladek II, the claimant may do so through the use of
epidemiological evidence. Id.
Once the claimant meets this threshold burden, in order to take
advantage of the presumption of causation in Section 301(f) of the Act, the claimant
firefighter must establish each of the elements set forth above, including “exposure”
to the carcinogen in question. Section 301(f) of the Act also requires that the
presumption only applies “to claims made within the first three hundred weeks” after
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the last date of claimant’s employment in which he was exposed to the carcinogen
in question. If the presumption is triggered, the burden under Section 301(f) shifts
to the employer to rebut the presumption by showing “that the firefighter’s cancer
was not caused by the occupation of firefighting.” In terms of the employer’s
evidentiary burden on this point, the Supreme Court opined:
[T]he employer may not rebut the evidentiary presumption
with generalized epidemiological evidence that [the]
claimant has a type of cancer that may (or may not)
possibly be caused by a Group 1 carcinogen. As indicated,
epidemiological studies merely identify statistical
associations between disease and potentially causative
agents in broad populations, and thus do not provide any
evidence demonstrating the specific cause of a particular
claimant’s cancer. To reach the stage of the proceedings
at which the employer attempts to rebut the presumption
of employment-related causation, the claimant has already
carried his or her Section 108(r) burden of proof that his
or her cancer is of a type that may be caused by a Group 1
carcinogen. The employer may not rebut the evidentiary
presumption merely by revisiting this determination and
challenging its accuracy. At the rebuttal stage, the issue
relates not to “types of cancer” relative to potential
carcinogens, but rather requires proof of [sic] that the
cancer from which the claimant suffers was not caused by
his occupation as a firefighter.
Id. at 209-10 (footnote omitted) (emphasis added).
The majority vacates the decision of the Workers’ Compensation
Appeal Board (Board) in this matter and remands the matter to the Board, with a
directive that the Board remand the matter to the WCJ for new findings and
conclusions in light of Sladek II. Respectfully, for the reasons set forth below, I
would reverse the Board’s decision, which affirmed the WCJ’s conclusion that
Claimant failed to meet her initial burden under Section 108(r) of the Act. I would,
nonetheless, remand the matter to the WCJ for further consideration on whether
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Claimant established all of the statutory elements for the presumption of causation
under Section 301(f) of the Act and, if so, whether the City of Philadelphia
(Employer) rebutted that presumption under the standard announced by the Supreme
Court in Sladek II.
The record in this case unquestionably establishes that Theresa Regan
(Claimant) met the initial hurdle of establishing that her husband’s (Decedent)
diagnosis and death from lung cancer fall within the definition of “occupational
disease” under Section 108(r) of the Act. As the majority notes, Barry Singer, M.D.,
Claimant’s expert witness, and Andre Haas, M.D., Ph.D., Employer’s expert
witness, agreed that lung cancer is linked to exposure to Group 1 carcinogens found
in diesel fuel fumes, smoke, and soot. Given the fact that the WCJ expressly credited
Dr. Haas’s testimony over that of Dr. Singer’s, I highlight the following testimony
from Dr. Haas:
Q. So, to cut right to it, in your opinion, there is no
doubt that lung cancer is the type of cancer that can be
caused by IARC Group 1 carcinogens; is that correct?
A. Correct.
Q. There’s also no doubt that [Decedent] would
come in contact with IARC --- come in direct contact with
IARC Group 1 carcinogens in smoke if he did not have a
mask on?
A. That’s probably correct, yes.
Q. And diesel fuel emissions is a direct --- is a
IARC Group 1 carcinogen as of, I think, July 2012;
correct?
A. Correct.
Q. And there’s no doubt, from what you reviewed,
that he had daily exposure to diesel fuel emissions;
correct?
A. Correct.
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Q. So throughout his career, from start to finish,
there’s no doubt that he had direct exposure with IARC
Group 1 carcinogens that cause lung cancer?
A. Correct.
(Reproduced Record at 566-67.) This expert testimony, credited by the WCJ, is
sufficient to bring Decedent’s lung cancer within the definition of an occupational
disease under Section 108(r) of the Act, as it creates a general causative link between
lung cancer and exposure to certain Group 1 carcinogens. Sladek I and Sladek II.
Turning to the proof elements required under Section 301(f) of the Act,
it appears undisputed that, throughout the course of his career, Decedent was in fact
exposed to these lung cancer-causing carcinogens. It also appears undisputed that
the claim petitions in this matter were filed within 300 weeks of Decedent’s last
exposure. Decedent served as a firefighter for the City for 34 years, well in excess
of the four years of continuous service required under Section 301(f) of the Act.
Nonetheless, I see nothing in the Board’s opinion, the WCJ’s determination, or the
parties’ briefs on appeal to address the final proof element under Section 301(f), that
being a physical examination that reveals no evidence of lung cancer prior to either
the filing of the claim in this matter or Decedent engaging in firefighting duties.
Accordingly, it would be inappropriate for this Court on appeal to render any
findings with respect to this aspect of the Section 301(f) presumption. This is a task
for the WCJ.
On remand, if Claimant can satisfy this final proof element under
Section 301(f) of the Act, then Claimant is entitled to the evidentiary presumption
that Decedent’s lung cancer diagnosis and death are work-related and, therefore,
covered under the Act. The burden would then shift to Employer to show by
substantial competent evidence that Decedent’s lung cancer “was not caused by the
occupation of firefighting.” Given the substantial uncertainty and confusion in this
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area of the law during the pendency of this matter, the WCJ should reopen the record
to take additional evidence on these questions in light of Sladek II.
P. KEVIN BROBSON, Judge
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