City of Philadelphia v. J. Healey (WCAB) ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Philadelphia, :
Petitioner :
:
v. :
:
Joseph Healey (Workers’ :
Compensation Appeal Board), : No. 1158 C.D. 2021
Respondent : Argued: March 8, 2023
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE STACY WALLACE, Judge
OPINION BY
JUDGE COVEY FILED: June 21, 2023
The City of Philadelphia (Employer) petitions this Court for review of
the Workers’ Compensation (WC) Appeal Board’s (Board) September 22, 2021
order affirming the WC Judge’s (WCJ) November 5, 2020 decision that granted
Joseph Healey’s (Claimant) Claim Petition for WC benefits (Claim Petition).1
Employer presents one issue for this Court’s review:
[W]hether a claim made pursuant to Section 108(r) [of the
WC Act (Act), which was added to the Act by what is
1
The WCJ ordered Employer to pay Claimant wage loss benefits from July 13, 2016
through September 23, 2017, December 6, 2017 through December 20, 2017, and January 8, 2018
through February 1, 2018, plus 10% statutory interest, but suspended wage loss benefits effective
February 2, 2018. The WCJ further ordered Employer to pay a 15% counsel fee to Claimant’s
counsel, payable from Claimant’s share of compensation. Finally, the WCJ ordered Employer to
reimburse Claimant’s litigation costs of $4,075.33. See Attachments to Employer’s Br., WCJ Dec.
at 19.
commonly known as Act 46,2] can be based on a
carcinogen that was designated as Group 1 by the
[International Agency for Research on Cancer (]IARC[)3]
after Act 46 became law on July [7], 2011.[4]
Employer Br. at 4. After review, this Court affirms.
Employer hired Claimant as a firefighter in 2003. Employer promoted
Claimant to Lieutenant in 2013. In June 2016, Claimant underwent medical testing
which revealed a mass on his kidney. Claimant was out of work from July 13 to
September 23, 2016. On July 21, 2016, Claimant was diagnosed with clear cell renal
carcinoma. Claimant developed some complications requiring him to undergo a
cryoablation on the same kidney, which resulted in him being out of work again from
December 6 to December 20, 2017. Claimant subsequently developed a hernia at
one of the incision sites which necessitated surgery and required him to be out of
work again from January 8 to February 1, 2018.
2
Act of June 2, 1915, P.L. 736, as amended, added by Section 1 of the Act of July 7, 2011,
P.L. 251 (Act 46), 77 P.S. § 27.1(r). Section 108(r) of the Act was immediately effective on July
7, 2011.
3
The [IARC] is a specialized research group within the World Health
Organization that attempts to identify the causes of human cancers.
The agency evaluates various agents, mixtures, and exposures, and
classifies them into one of five groups. Group 1 substances are
considered “carcinogenic to humans;” Group 2a substances are
“probably carcinogenic to humans;” Group 2b substances are
“possibly carcinogenic to humans;” Group 3 substances are “not
classifiable as to human carcinogenicity;” and Group 4 substances
are “probably not carcinogenic to humans.” See IARC Monographs
on the Evaluation of Carcinogenic Risks to Humans, WORLD
HEALTH ORGANIZATION,
http://monographs.iarc.fr/ENG/Classification.
City of Phila. Fire Dep’t v. Workers’ Comp. Appeal Bd. (Sladek), 195 A.3d 197, 200 n.4 (Pa. 2018)
(emphasis added).
4
Notably, Claimant represented in the Claim Petition that he was seeking WC benefits for
an occupational disease (i.e., renal cancer suffered by a firefighter), but did not specify that he was
seeking benefits under Section 108(r) of the Act. See Certified Record Item 2 at 2-3.
2
On May 31, 2019, Claimant filed the Claim Petition asserting that his
employment as a firefighter, fighting house, residential, and car fires, for 13 years
exposed him to pressure treated wood, diesel fuel emissions, inorganic arsenic, and
soot, plus diesel fuel emissions at firehouses and firegrounds from the fire apparatus
which caused his kidney cancer. See Certified Record (C.R.) Item 2, Claim Petition,
at 2. Claimant declared that he was totally disabled from July 13 to September 23,
2016, December 6 to December 20, 2017, and January 8 to February 1, 2018.5 See
id. at 3. On June 15, 2019, Employer issued a Notice of Compensation Denial,
indicating that Claimant did not sustain a work-related injury or disease. On June
26, 2019, Employer denied the allegations in the Claim Petition. The WCJ
conducted hearings on July 16, 2019, and February 11 and May 12, 2020.
At the July 16, 2019 hearing, Employer agreed to Claimant’s
allegations as averred in his Claim Petition, but contested causation. At the WCJ
hearings, Claimant offered the testimony of internal and occupational medicine
expert Arthur L. Frank, M.D., Ph.D. (Dr. Frank), who reported that firefighters are
exposed to arsenic, asbestos, polycyclic aromatic hydrocarbons (PAHs), and
trichlorethylene (TCE).6 See WCJ Dec. at 9, Finding of Fact (FOF) 10a. Dr. Frank
“opined that Claimant’s exposure to arsenic, asbestos, diesel fumes and TCE [was]
the major occupational risk factor[] for developing kidney cancer.” WCJ Dec. at 11,
FOF 10h.
Employer submitted Howard Sandler, M.D.’s (Dr. Sandler) deposition
testimony, in which Dr. Sandler declared that Claimant’s clear cell renal carcinoma
was not caused by occupational exposure as a firefighter, as there is no data which
5
Claimant has returned to work and feels fine, but undergoes check-ups every six months.
6
TCE is “a halogenated alkene compound formed by the reaction of organic material
produced by burning and chlorine from sources such as polyvinyl chloride furnishings and
products found in structures.” Bristol Borough v. Workers’ Comp. Appeal Bd. (Burnett), 206 A.3d
585, 590 (Pa. Cmwlth. 2019).
3
clearly supports the presence of a causal nexus. Employer also offered, inter alia,
the IARC’s Classification of Carcinogens by Cancer Site, that lists TCE as a Group
1 carcinogen that causes kidney cancer in humans. See WCJ Dec. at 12, FOF 12
(Reproduced Record (R.R.) at 185a).7 In addition, Employer submitted, inter alia,
IARC’s Monograph 106 (TCE), published in 2014, which “identif[ies] TCE as a
Group 1 carcinogen for kidney cancer.” WCJ Dec. at 15, FOF 17 (R.R. at 234a-
516a).
When Act 46 was enacted in 2011, TCE was listed in Group 2a as a
substance “probably carcinogenic to humans.” Id. However, in 2014, based on new
data that TCE exposure caused kidney cancer, IARC published Monograph 106 in
which it reclassified TCE as a Group 1 carcinogen. Employer argued that the IARC
did not designate TCE as a Group 1 carcinogen until after Act 46 became law on
July 7, 2011, and allowing the IARC to add or subtract from Group 1 is an
unconstitutional delegation of the General Assembly’s legislative authority. See
WCJ Dec. at 15, FOF 13n.
On November 5, 2020, the WCJ granted the Claim Petition, declaring
that Claimant met his burden of proving that his kidney cancer was a work-related
injury. See WCJ Dec. at 19. Specifically, the WCJ found credible Claimant’s
testimony that he was exposed to asbestos, arsenic, diesel fuel, soot, PAHs, and TCE,
while employed as a firefighter from 2003 to 2016. See WCJ Dec. at 17, FOF 24.
The WCJ also found credible Dr. Frank’s testimony that Claimant’s clear cell renal
carcinoma was caused by his cumulative exposures to asbestos, arsenic, TCE, PAHs,
diesel fuel emissions, and soot over those 13 years. See WCJ Dec. at 17, FOF 25.
Employer’s Reproduced Record page numbers do not comply with Pennsylvania Rule of
7
Appellate Procedure (Rule) 2173, which requires that “the reproduced record . . . shall be
numbered separately in Arabic figures . . . followed . . . by a small a[.]” Pa.R.A.P. 2173. In
accordance with Rule 2173, this Court references the Reproduced Record page numbers herein
with a corresponding a.
4
Employer appealed to the Board, which affirmed the WCJ’s decision. Employer
appealed to this Court.8
Employer argues that the WCJ erred by relying on Claimant’s TCE
exposure to grant the Claim Petition under Section 108(r) of the Act. Specifically,
Employer contends that interpreting Section 108(r) of the Act to include TCE as a
Group 1 carcinogen after Act 46 became law on July 7, 2011, makes Section 108(r)
of the Act reliant on the IARC’s ever-changing Group 1 carcinogen list and, thus,
the General Assembly unconstitutionally delegated its lawmaking authority to the
IARC.
An injured employee seeking to obtain [WC] benefits for
a work-related injury bears the burden of proving all
elements necessary to support an award. Pursuant to
Section 301(c)(1) of the Act, 77 P.S. § 411(1), an
employee’s injuries are compensable if they (1) arise in
the course of employment and (2) are causally related
thereto.
Amandeo v. Workers’ Comp. Appeal Bd. (Conagra Foods), 37 A.3d 72, 75 n.4 (Pa.
Cmwlth. 2012) (emphasis added; citation omitted). Section 301(c)(2) of the Act
provides, in relevant part: “The terms ‘injury,’ ‘personal injury,’ and ‘injury arising
in the course of his employment,’ as used in this [A]ct, shall include . . .
occupational disease as defined in [S]ection 108 of this [A]ct[.]” 77 P.S. § 411(2)
(emphasis added). On July 7, 2011, Act 46 added Section 108(r) to the Act, which
defines the term occupational disease to include, inter alia, “[c]ancer suffered by
a firefighter which is caused by exposure to a known carcinogen [that] is
recognized as a Group 1 carcinogen by the [IARC].” 77 P.S. § 27.1(r) (emphasis
added).
8
“[This Court’s] 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.” DiLaqua v. City of Phila. Fire Dep’t (Workers’ Comp. Appeal
Bd.), 268 A.3d 1, 4 n.5 (Pa. Cmwlth. 2020) (quoting Bristol Borough, 206 A.3d at 595 n.6).
5
Act 46 also added Section 301(f) to the Act,9 which provides, in
relevant 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
[S]ection 108(r) [of the Act] 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. The presumption . . . may be rebutted
by substantial competent evidence that shows that the
firefighter’s cancer was not caused by the occupation of
firefighting. Any claim made by a member of a volunteer
fire company shall be based on evidence of direct exposure
to a carcinogen referred to in [S]ection 108(r) [of the Act]
as documented by reports filed pursuant to the
Pennsylvania Fire Information Reporting System
[(PennFIRS)] and provided that the member’s claim is
based on direct exposure to a carcinogen referred to in
[S]ection 108(r) [of the Act].[10]
77 P.S. § 414 (italic and bold emphasis added).
Therefore,
to establish an evidentiary presumption of entitlement to
compensation in accordance with [S]ection 301(f) [of the
Act], the claimant must establish that he or she
(1) served four or more years in continuous
firefighting duties;
(2) had direct exposure to a Group 1 carcinogen;
and
(3) passed a physical examination prior to
asserting a claim or prior to engaging in
9
Added by Section 2 of Act 46, 77 P.S. § 414.
10
The purpose of “the PennFIRS reporting requirement in Section 301(f) [of the Act] is to
document a [] firefighter’s presence at a type of fire where firefighters are routinely exposed to
Group 1 carcinogens known to cause various types of cancers.” Bristol Borough, 206 A.3d at 602.
6
firefighting duties (and the examination failed to
reveal any evidence of cancer).
77 P.S. § 414. . . . [I]f the claimant succeeds in
demonstrating an occupational disease and an entitlement
to the evidentiary presumption of compensability, then the
burden of proof shifts to the employer, who must offer
“substantial competent evidence that shows that the
firefighter’s cancer was not caused by the occupation of
firefighting.” Id.
City of Phila. Fire Dep’t v. Workers’ Comp. Appeal Bd. (Sladek), 195 A.3d 197, 207
(Pa. 2018) (italic and bold emphasis added; footnote omitted). Thus, “Section 301(f)
[of the Act], in conjunction with Section 108(r) [of the Act], requires that a
firefighter be diagnosed with a type of cancer caused by exposure to a known Group
1 carcinogen.” Caffey v. Workers’ Comp. Appeal Bd. (City of Phila.), 185 A.3d 437,
439 (Pa. Cmwlth. 2018).
Here, the parties agree that Claimant “served four or more years in
continuous firefighting duties[,]” and “successfully passed a physical examination
prior to asserting a claim . . . and the examination failed to reveal any evidence of
the condition of cancer.” 77 P.S. § 414; see also Employer Br. at 9. Their
disagreement is over whether Claimant established “direct exposure to a Group 1
carcinogen[.]” 77 P.S. § 414.
The Sladek Court reflected on the General Assembly’s policy behind
Section 108(r) of the Act:
Section 108(r) [of the Act] 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) [of the Act] 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. . . .
7
In this regard, epidemiological evidence is clearly relevant
and useful in demonstrating general causation.
Epidemiology deals with, inter alia, the identification of
potentially causative associations in various populations
between possible causative agents and the resulting
incidence of particular diseases and seeks to generalize
those results. In so doing, epidemiology may provide
“useful information as to whether there is a relationship
between an agent and a disease and, when properly
interpreted, can provide insight into whether the agent can
cause the disease.” See, e.g., Blum by Blum v. Merrell
Dow Pharm., Inc., 705 A.2d 1314, 1323-24 (Pa. Super.
1997), aff’d sub nom. Blum ex rel. Blum v. Merrell Dow
Pharm., Inc., . . . 764 A.2d 1 ([Pa.] 2000), and abrogated
on other grounds by Trach v. Fellin, 817 A.2d 1102 (Pa.
Super. 2003). Given its focus on identifying generalized
causal relationships between potential causative agents
and the resulting incidence of disease, epidemiology’s
focus on statistical analysis may be uniquely suited to
illuminate whether there is a general causal
relationship between types of cancer and Group 1
carcinogens.
Id. at 208-09 (italic and bold emphasis added).
The Sladek Court further explained:
[Section 108(r) of the Act] 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. . . . The burden imposed by Section 108(r) [of the
Act] is not a heavy burden.
Sladek, 195 A.3d at 208 (italic and bold emphasis added). Relying on Sladek, this
Court has held:
[A] career firefighter may establish direct exposure to a
Group 1 carcinogen by evidence of his occupational
exposure to fire smoke, soot, diesel exhaust, and other
hazardous substances such as asbestos, and expert
8
medical/scientific evidence identifying the Group 1
carcinogens present in those substances. See, e.g., Caffey
. . . (career firefighter’s testimony of occupational
exposure to fire smoke, soot and diesel exhaust, combined
with expert medical testimony as to causal relationship
between [his] cancer and firefighting exposures to these
substances, could support an award of medical benefits
under Sections 108(r) and 301(f) of the Act).
Bristol Borough v. Workers’ Comp. Appeal Bd. (Burnett), 206 A.3d 585, 602 (Pa.
Cmwlth. 2019).
Here, Dr. Frank testified, based on his review of Claimant’s testimony,
medical records, and exposure documentation, and his extensive expertise and
review of literature on kidney cancer and chemical substances, including Guidotti,
T.L., Evaluating Causality for Occupational Cancers: The Example of Firefighters,
Occupational Medicine, 57:466-71 (2007); Mattioli, S., Occupational Risk Factors
for Renal Cell Cancer: A Case-Control Study in Northern Italy, Journal of
Occupational and Environmental Medicine, 44:128-36 (2002); and Delahunt, B. et
al. Occupational Risk Factors for Renal Cell Carcinoma: A Case-Control Study
Based on the New Zealand Cancer Registry, British Journal of Urology, 75:578-82
(1995), that, “as a firefighter, [Claimant] had . . . exposure to . . . [TCE,] which [is
a] Group 1 carcinogen[] whenever [it] may have been labeled as such, that [is]
related to the development of kidney cancer.” See R.R. at 53a-54a (emphasis added);
see also R.R. at 102a (there is an epidemiologic link between TCE and kidney
cancer); C.R. Items 25-28 (studies). Dr. Frank’s declaration of a link between TCE
and Claimant’s cancer is also consistent with the IARC’s Classification of
Carcinogens by Cancer Site and IARC Monograph 106. See R.R. at 185a, 488a.
Ultimately,
a WCJ is required to make credibility and evidentiary
determinations, to make findings as to the facts underlying
the matter, and to determine whether a claimant has met
the burden of proving entitlement to compensation, and
9
with regard to these findings and determinations, “the
WCJ is the ultimate finder of fact and the exclusive arbiter
of credibility and evidentiary weight.” Thompson v.
Workers’ Comp. Appeal Bd. (USF&G Co.), . . . 781 A.2d
1146, 1150 ([Pa.] 2001).
Dep’t of Corr. - SCI Chester v. Faison (Workers’ Comp. Appeal Bd.), 266 A.3d 714,
730 (Pa. Cmwlth. 2021).
Here, the WCJ concluded that “Claimant [] sustained his burden that he
sustained an occupational disease in the nature of [clear cell renal carcinoma,]” WCJ
Dec. at 18, Conclusion of Law 2, based on the following findings:
[10.]i. Upon reviewing Claimant’s testimony, Dr. Frank
issued a supplemental report which reinforced his findings
on causation due to work-related asbestos, arsenic, PAHs
and TCE. Dr. Frank opined that Claimant’s cumulative
exposure to a variety of Group 1 carcinogens that cause
kidney cancer caused Claimant’s kidney cancer. Claimant
was exposed to asbestos when he worked at the ladder
company when they would pull down and open up
ceilings. Claimant was exposed to [PAHs] with anything
that burned carbon, such as wood, rubber tires and
gasoline which would include PAHs. Claimant was
exposed to arsenic in treated wood. Claimant was exposed
to diesel fumes. Claimant was exposed to TCE in burning
wood and grass.
[10.]j. Dr. Frank relied on the Guidotti study which was a
cohort study of firefighters in Alberta. This 2007 study
evaluated the causality in cancers associated with
firefighting. The epidemiological literature based cancer
risk among firefighters was reviewed. Kidney cancer was
one of the cancers given a legislative presumption for
compensation for firefighters. Dr. Frank also reviewed
studies from Delahunt and Mattioli which were cohort
studies. ([See Dr. Frank Notes of Testimony, Exs.] C-12
[(C.R. Items 25, 26)], C-13 [(C.R. Item 27),] and C-14
[(C.R. Item 28).])
....
24. This [WCJ] finds [] Claimant’s testimony credible that
he was exposed to asbestos, arsenic, diesel fuel[,] [s]oot,
10
PAHs and TCE, while fighting fires for 13 years.
Claimant credibly testified regarding some of the fires set
forth in the [National Fire Incident Reporting System
(]NFIRS[)], a report of firefighting activities from 2008-
2018 recorded by [Employer]. Claimant’s occupational
history was also unrebutted. This [WCJ] further notes that
she had the opportunity to personally observe Claimant
when []he testified.
25. This [WCJ] finds the testimony of Dr. Frank
credible that Claimant’s [clear cell renal] carcinoma
was caused by his cumulative exposures to asbestos,
arsenic, [TCE], PAHs, diesel fuel emissions[,] and soot
while working as a firefighter from 2003-2016. In so
finding, this [WCJ] notes that [Dr. Frank’s] opinions are
corroborated by Claimant’s testimony regarding his job
duties and the NFIRS report. This [WCJ] further notes
that while TCE is the only carcinogen noted by the IARC
to cause kidney cancer, the [Pennsylvania] Supreme Court
in Sladek found that Claimant need only show that it is
possible that the carcinogen in question caused the type of
cancer with which the Claimant is afflicted. In this
regard, this [WCJ] finds the testimony of Dr. Frank
credible that, in addition to TCE, Claimant’s
cumulative exposure to asbestos, arsenic, PAHs, diesel
fuel emissions[,] and soot caused his [clear cell renal]
carcinoma.
26. This [WCJ] finds that Employer did not rebut the
presumption that Claimant’s cancer was work-related. In
so finding, this [WCJ] rejects the testimony of Dr. Sandler
that there was a non-firefighting cause for his cancer.
Specifically, Dr. Sandler’s opinion that the tumor was
present prior to Claimant’s employment with Employer is
not supported by any of the medical evidence. Rather,
Claimant’s tumor was noted to be very small and he had a
partial nephrectomy. Dr. Sandler’s opinion that
Claimant’s cancer was caused by hypertension is rejected
as it was controlled with medication without any issue.
Dr. Sandler’s opinion that Claimant’s cancer was caused
by obesity is rejected as Claimant is muscular as he lifts
weights. In addition, Dr. Sandler does agree that there is
potential exposure to various carcinogens among the many
substances created during fires including asbestos,
[PAHs], benzene, [and] butadiene, as well as halogenated
11
hydrocarbons, e.g., [TCE] and per(tetra) chlor[o]ethylene
and diesel exhaust.
WCJ Dec. at 17, FOFs 24-26.
Clearly, based on the evidence the WCJ found credible, TCE was
among the dangerous substances to which Claimant was exposed as a firefighter and
the cumulative exposure to all of the chemicals over 13 years caused his kidney
cancer. In addition, Claimant’s evidence established that he was “diagnosed with a
type of cancer [(i.e., kidney cancer)] caused by exposure to a known Group 1
carcinogen [(i.e., TCE)].” Caffey, 185 A.3d at 439 n.2. Claimant did not have to
prove that his TCE exposure actually caused his cancer. See Sladek. Accordingly,
there existed substantial record evidence for the WCJ to award Claimant WC
benefits under Section 108(r) of the Act.
Notably, Employer does not challenge the WCJ’s findings of fact or
whether the findings are supported by substantial evidence, but rather Employer’s
argument is solely that TCE exposure cannot be a basis on which to award WC
benefits to Claimant under Section 108(r) of the Act because it was not listed as a
Group 1 carcinogen when Section 108(r) was added to the Act and, thus, violates the
non-delegation doctrine under Protz v. Workers’ Compensation Appeal Board
(Derry Area School District), 161 A.3d 827, 841 (Pa. 2017).11 However, unlike
Protz and Pennsylvania Builders Association v. Department of Labor & Industry, 4
A.3d 215 (Pa. Cmwlth. 2010), wherein the General Assembly expressly authorized
third parties to set standards that substantively affected WC recipients and builders
11
This Court acknowledges that “[t]he Pennsylvania Constitution prevents the General
Assembly from passing off to another branch or body de facto control over matters of policy.”
Protz, 161 A.3d at 841. In addition, well-settled delegation standards and case law specify that
the General Assembly has the authority “to delegate to [the IARC], its execution and
administrative authority over Pennsylvania’s [occupational disease classifications], . . . as long as:
(1) basic policy choices are still made by the General Assembly; and (2) the legislation contains
adequate standards to guide and restrain the exercise of those functions.” Pa. Builders Ass’n v.
Dep’t of Lab. & Indus., 4 A.3d 215, 224 (Pa. Cmwlth. 2010); see also Protz.
12
without the necessary safeguards in place, in Section 108(r) of the Act, the General
Assembly merely established the IARC’s Group 1 listings as the evidentiary
standard for claimants’ statutory presumption that “weeds out” WC claims “for
cancer[] with no known link to Group 1 carcinogens.” Sladek, 195 A.3d at 208. A
claimant does not automatically receive WC benefits merely because the IARC
listed it as a Group 1 carcinogen. A claimant still has the burden to prove that he
was exposed to such a substance and that the substance has been linked to his type
of cancer. A WCJ must ultimately determine whether a claimant met his burden
based on the evidence presented. Thus, regardless of whether ongoing research may
change the IARC’s Group 1 list, a claimant’s evidentiary threshold remains the
same. Accordingly, despite that TCE was not listed as a Group 1 carcinogen when
Act 46 was enacted, Claimant’s medical expert testified that medical studies and
documentation evidenced TCE’s known link to kidney cancer. This Court’s
precedent also supports Claimant’s position. See Bristol Borough (wherein this
Court upheld a WC award under Section 108(r) of the Act based on claimant’s
credited expert medical opinion that sufficiently established the possibility that TCE
in fire smoke caused the claimant’s diffuse large B-cell/Non-Hodgkin’s lymphoma);
see also City of Johnstown v. Workers’ Comp. Appeal Bd. (Sevanick) (Pa. Cmwlth.
No. 1156 C.D. 2019, filed May 6, 2020)12 (wherein this Court upheld a WC benefits
award based, in part, on the WCJ’s findings that the claimant had direct exposure to
IARC Group 1 carcinogens, including TCE, and that such exposure was a substantial
contributing factor in the development of his kidney cancer).
12
Unreported decisions of this Court issued after January 15, 2008, may be cited as
persuasive authority pursuant to Section 414(a) of this Court’s Internal Operating Procedures. 210
Pa. Code § 69.414(a). The unreported decisions cited herein are cited for their persuasive value.
The Pennsylvania Supreme Court granted an appeal from Sevanick on other grounds and
affirmed this Court’s decision. See City of Johnstown v. Workers’ Comp. Appeal Bd. (Sevanick),
255 A.3d 214 (Pa. 2021).
13
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.
(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. 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)). “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 reviewing the WCJ’s credibility and evidentiary
determinations, “[i]t is irrelevant whether the record
contains evidence to support findings other than those
made by the WCJ; the critical inquiry is whether there is
evidence to support the findings actually made.” Furnari
v. Workers’ Comp. Appeal Bd. (Temple Inland), 90 A.3d
53, 60 (Pa. Cmwlth. 2014) (citation omitted). Thus, this
Court’s authority in these matters is limited to reviewing
the entire record to see if it contains evidence that a
reasonable person might find sufficient to support the
WCJ’s findings. Id. If the record contains such evidence,
the findings must be upheld, even though the record may
contain conflicting evidence. Id.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.
Cmwlth. 2014) (quoting Dorsey v. Workers’ Comp. Appeal Bd. (Crossing Constr. Co.), 893 A.2d
191, 195 (Pa. Cmwlth. 2006) (citation omitted)); see also Burnett, 206 A.3d at 611 (this Court is
“bound by the WCJ’s credibility determinations”). Capricious disregard “occurs only when the
fact-finder 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.14
Faison, 266 A.3d at 736.
Moreover,
[w]hen “performing a substantial evidence analysis, this
Court must view the evidence in a light most favorable to
the party who prevailed before the fact-finder.” WAWA v.
Workers’ Comp[.] Appeal [Bd.] (Seltzer), 951 A.2d 405,
408 (Pa. Cmwlth. 2008). Further, when determining
whether substantial evidence exists to support a finding of
fact, this Court must give to the party in whose favor the
appealed decision was decided “the benefit of all
inferences that can logically and reasonably be drawn
from the evidence.” B.J.K. v. Dep[’t] of Pub[.] Welfare,
773 A.2d 1271, 1276 (Pa. Cmwlth. 2001).
Obimak Enter. v. Dep’t of Health, 200 A.3d 119, 126 (Pa. Cmwlth. 2018).
Here, viewing the evidence in Claimant’s favor, as this Court must,
substantial evidence supported the WCJ’s conclusion that Claimant proved his
entitlement to WC benefits pursuant to Sladek. Accordingly, the Board properly
affirmed the WCJ’s decision.
Based on the foregoing, the Board’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Philadelphia, :
Petitioner :
:
v. :
:
Joseph Healey (Workers’ :
Compensation Appeal Board), : No. 1158 C.D. 2021
Respondent :
ORDER
AND NOW, this 21st day of June, 2023, the Workers’ Compensation
Appeal Board’s September 22, 2021 order is affirmed.
_________________________________
ANNE E. COVEY, Judge