City of Philadelphia v. Estate of T. Burke (WCAB) ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Philadelphia, :
Petitioner :
:
v. : No. 1215 C.D. 2020
: SUBMITTED: April 9, 2021
Estate of Thomas Burke :
(Workers’ Compensation :
Appeal Board), :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: July 30, 2021
The City of Philadelphia (Employer) petitions this Court for review of the
October 30, 2020 order of the Workers’ Compensation Appeal Board (Board)
affirming the decision of a workers’ compensation judge (WCJ), who awarded
survivor benefits under the Workers’ Compensation Act (Act)1 to Maria Burke
(Claimant), following the death of her husband Thomas Burke (Decedent). The
issues before this Court are whether the WCJ erred in concluding that Decedent’s
death from lung cancer was caused by an occupational disease under Section 108(o)
of the Act,2 whether Claimant established the last date of Decedent’s exposure to an
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
2
Added by the Act of October 17, 1972, P.L. 930, 77 P.S. § 27.1(o). Under Section 108(o)
of the Act, an occupational disease includes “[d]iseases of the heart and lungs, resulting in either
temporary or permanent total or partial disability or death, after four years or more of service in
fire fighting for the benefit or safety of the public, caused by extreme over-exertion in times of
(Footnote continued on next page…)
occupational hazard, and whether the WCJ erred in concluding that Decedent’s 2006
wages should be used to calculate his average weekly wage (AWW). After review,
we affirm.
I. Background
Before discussing the pertinent facts underlying this matter, it is helpful to
first review the applicable statutory provisions which govern our disposition.
A claimant seeking benefits for a work-related injury bears the burden of
establishing the elements necessary to support an award. Coyne v. Workers’ Comp.
Appeal Bd. (Villanova Univ.), 942 A.2d 939, 945 (Pa. Cmwlth. 2008). Section
301(c)(1) of the Act3 provides that the term “injury” includes an occupational
disease, as defined in Section 108 of the Act.4 When a claimant is employed “at or
immediately before the date of disability” in an occupation for which the
occupational disease is a hazard, a rebuttable presumption arises that the
occupational disease arose out of, and in the course of, the claimant’s employment.5
If a claimant’s basis for compensation is death from an occupational disease,
Section 301(c)(1) provides that death must occur within 300 weeks after the injury,6
which is determined by the “last date of injurious exposure to the agent causing the
disease.” Kimberly Clark Corp. v. Workers’ Comp. Appeal Bd. (Bromley), 161 A.3d
stress or danger or by exposure to heat, smoke, fumes or gasses, arising directly out of the
employment of such firemen.”
3
77 P.S. § 411(1).
4
77 P.S. § 27.1.
5
Section 301(e) of the Act, 77 P.S. § 413.
6
Three hundred weeks is approximately 5.75 years.
2
446, 463-64 (Pa. Cmwlth. 2017) (emphasis in original) (internal citations omitted).
The burden of proof relating to a decedent’s exposure to an occupational hazard is
not great, and a WCJ may rely on the testimony of the claimant or other witnesses
to prove the existence of, and exposure to, the hazard. Id. at 465 (internal citations
omitted).
Section 301(c)(2) of the Act likewise provides that compensation for an
occupational disease is only available for “disability or death resulting from such
disease and occurring within [300] weeks after the last date of employment in an
occupation or industry to which he was exposed to hazards of such disease . . . .”
Section 301(c)(2) of the Act, 77 P.S. § 411 (emphasis added). This 300-week period
begins to run, not with the last date of employment, but with the last date of
workplace exposure. Cable v. Workmen’s Comp. Appeal Bd. (Gulf Oil/Chevron
USA, Inc.), 664 A.2d 1349 (Pa. 1995) (purpose of the limitations period in Section
301(c)(2) is to limit compensation for occupational diseases to those which manifest
themselves within 300 weeks of exposure to a hazard).
The Act of July 7, 2011, P.L. 251, No. 46 (Act 46), added Section 108(r) to
the Act to provide for the occupational disease of cancer suffered by a firefighter.7
A claimant seeking compensation under Section 108(r) must establish that he
worked continuously as a firefighter for four or more years, that he had direct
exposure to a material recognized as a Group 1 carcinogen by the International
Agency for Research on Cancer (IARC), and that he passed a physical examination
prior to engaging in firefighter duties that did not reveal evidence of cancer.8
7
Added by the Act of July 7, 2011, P.L. 251, 77 P.S. § 27.1(r).
8
Section 301(f) of the Act, 77 P.S. § 414.
3
Act 46 established a different limitations period for Section 108(r) claims.
First, a Section 108(r) claimant must file his claim “within [300] weeks after the last
date of employment in an occupation or industry to which [he] was exposed to the
hazards of disease . . . .” 77 P.S. § 414 (emphasis added). Failure to file within
300 weeks does not preclude a Section 108(r) claim; however, the claimant loses the
statutory presumption that his cancer was related to his employment as a firefighter.
Additionally, a claim under Section 108(r) must be filed “within [600] weeks after
the last date of employment in an occupation or industry to which a claimant was
exposed to the hazards of disease . . . .”9 Id. As with the limitations period
established generally for occupational diseases in Section 301(c)(2) of the Act, these
periods are triggered, not by the claimant’s last date of work, but rather by his last
day at work “with exposure to a known Group 1 carcinogen.” Fargo v. Workers’
Comp. Appeal Bd. (City of Phila.), 148 A.3d 514, 521 (Pa. Cmwlth. 2016) (emphasis
added). A Section 108(r) claim ceases to exist once 600 weeks has elapsed from the
date of his last workplace exposure. Id.In short, the nature of the occupational disease does not affect the date upon
which the relevant limitation period begins to run, which is last date of workplace
exposure. One critical difference remains, however. Section 108(r) claims must be
filed within 600 weeks of the last date of workplace exposure. All other claims
alleging an occupational disease are valid, provided that the occupational disease
manifests within 300 weeks of the last date of workplace exposure.
In City of Philadelphia Fire Department v. Workers’ Compensation Appeal
Board (Sladek), 144 A.3d 1011 (Pa. Cmwlth. 2016) (Sladek I), rev’d, 195 A.3d 197(Pa. 2018) (Sladek II), this Court held that, before a firefighter could avail himself
9
Section 301(f) of the Act, 77 P.S. § 414. Six hundred weeks is approximately 11.5 years.
4
of the presumption that his malignant melanoma was related to his employment, he
had to prove that his malignant melanoma was a type of cancer caused by the Group
1 carcinogens to which he was exposed in the workplace; only then would the
presumption regarding occupational disease come into play.
The Supreme Court reversed, holding that, while a claimant asserting an
occupational disease under Section 108(r) must establish that his cancer is a type
that may be caused by exposure to a known Group 1 carcinogen, he is not required
to “prove that the identified Group 1 carcinogen actually caused [the] claimant’s
cancer.” Sladek II, 195 A.3d at 208 (emphasis in original). To rebut the presumption
that a claimant’s cancer was caused by workplace exposure to a Group 1 carcinogen,
the employer must demonstrate (1) the specific agent that caused the claimant’s
cancer, and (2) that exposure to that agent did not occur as a result of the claimant’s
employment as a firefighter. Id. In other words, the employer must “produce a
medical opinion regarding the specific, non-firefighting related cause of [the]
claimant’s cancer.” Id.
With this statutory framework in mind, we turn to the facts of the instant
matter.
On October 11, 2013, following Decedent’s death from lung cancer on
November 23, 2011, Claimant filed a fatal claim petition pursuant to Section 108(r)
of the Act. Certified Record (C.R.), Item No. 2. Employer denied Claimant’s
allegations and asserted that her claims were barred by the statute of limitations. Id.,
Item Nos. 4-5.
5
A. Claimant’s Evidence
In support of her petition, Claimant testified at an April 2, 2014 deposition,
and she presented the deposition testimonies of John Brennan (Brennan), one of
Decedent’s co-workers, and Barry L. Singer, M.D., a board-certified oncologist.
Claimant testified that Decedent was a firefighter at the time they married on
July 24, 1998. C.R., Item No. 21, Claimant’s Dep., 4/2/14, at 6. Decedent smoked
“less than a pack” of cigarettes per day when they met in June 1997. Id. at 9-10. To
Claimant’s knowledge, none of Decedent’s relatives, including his siblings and
deceased parents, were ever diagnosed with cancer. Id. at 11. Because Claimant
was a non-smoker, Decedent did not smoke in the house; instead, he would
occasionally go outside to have a cigarette. Id. at 12. Decedent first joined the fire
department in 1978 and he last worked on July 31, 2006. Id. at 6. Decedent was
diagnosed with cancer “in 2011.” Id. Claimant testified that, prior to that time,
Decedent “was never sick.” Id. Claimant and Decedent lived in two houses during
their marriage, neither of which had issues with asbestos or radon. Id. at 14.
Decedent occasionally drank beer. Id. at 15. After retiring from the fire department,
Decedent stocked shelves at Walmart until August 26, 2011, shortly after he was
diagnosed with cancer. Id. at 22, 23.
Brennan is a firefighter who worked with Decedent for approximately 15
years before Brennan retired in 2009. C.R., Item No. 22, Brennan Dep., 3/18/14, at
5. During that period, Brennan estimated that they responded to “thousands” of fires
at which smoke was present. Id. at 16. The firehouse at which they worked did not
initially have a diesel fuel emission capture system. Id. at 7. Brennan could not
recall when such a system was installed. Id. Prior to that time, he could smell diesel
fuel emissions in both floors of the firehouse. Id. Diesel engines on the fire
6
equipment ran inside the firehouse at the beginning of each shift and at the start of a
fire response. Id. at 9. They also operated throughout a fire response. Id. at 12.
Firefighters would use a self-contained breathing apparatus (SCBA) during some
responses in which they encountered smoke. Id. at 13, 15. SCBAs were not in use
during exterior fire operations, however, or during overhaul, despite the presence of
smoke at those responses. Id. at 15. The bunker gear worn by firefighters was
covered with soot after a response, and “everybody” had soot on their skin, as well,
“usually . . . right around [the] nose.” Id. at 17-18.
Brennan advised that Decedent smoked and firefighters were allowed to
smoke inside the fire house. Id. at 19. He considered Decedent a “medium” smoker.
Id. at 23. Firefighters routinely spent time in the basement of the fire house, which
contained laundry facilities, exercise equipment, a television, and ping pong and
pool tables. Id. at 21. Asbestos was removed from the basement during the period
Brennan and Decedent worked there. Id. at 20.
Dr. Singer testified generally regarding his understanding of the development
and treatment of cancer. He has provided his opinion for approximately 40 to 50
matters involving the relationship between firefighting and the development of
cancer. C.R., Item No. 24, Singer Dep., 12/21/12, at 26. Dr. Singer also testified at
a May 16, 2014 deposition specifically regarding Decedent’s cancer and whether it
was related to his employment as a firefighter. C.R., Item No. 23, Singer Dep.,
5/16/14, at 5. Dr. Singer has diagnosed and treated patients with cancer for 40 years
and approximately one-third of his practice involves the treatment of lung cancer.
Id. When determining whether a particular individual’s cancer is related to his or
her work as a firefighter, Dr. Singer reviews medical records and the history of a
patient with regard to the cancer involved. Id. at 11. His conclusions are made on a
7
case-by-case basis. Id. at 12. Dr. Singer opined that epidemiologic studies on the
risk of cancer for firefighters are relevant, but an individual’s personal exposure,
susceptibility, and history are all factors in determining whether he or she develops
cancer. Id.
Dr. Singer reviewed Decedent’s medical records and the depositions of
Claimant and Brennan. Id. at 14. Dr. Singer understood that, during his tenure as a
firefighter, Decedent fought thousands of fires at which he was exposed to smoke.
Id. at 15-16. Decedent was also exposed to diesel fuel emissions in the firehouse
and at fire responses. Id. at 16. Decedent’s medical records reflected that he was
once hospitalized for smoke inhalation. Id. at 17. Decedent smoked for
approximately 40 years. Id. He was diagnosed with metastatic adenocarcinoma of
the lung in July 2011. Id. at 17-18. Dr. Singer found no indication that Decedent
was diagnosed with cancer prior to that time. Id. at 24.
Dr. Singer noted that smoke contains several Group 1 carcinogens that
specifically relate to lung cancer, including benzopyrene, asbestos, silica, dioxin,
and arsenic. Id. at 21-22. Based on his review of Decedent’s records, Dr. Singer
believed Decedent was unquestionably exposed to those carcinogens throughout his
career as a firefighter. Id. at 24. Diesel fuel emissions are also a Group 1 carcinogen.
Id. at 26. Dr. Singer agreed that cigarette smoking is a cause of lung cancer. Id. at
25. He opined that the irritants caused by exposure to smoke as a firefighter and
those caused by cigarette smoking can act synergistically, increasing the risk of
developing lung cancer. Id. at 27. In Dr. Singer’s opinion, Decedent’s exposure to
diesel exhaust, soot, and smoke were a substantial contributing factor in his
developing lung cancer. Id. at 29.
8
Dr. Singer conceded during cross-examination that exposure to smoke varies
from firefighter to firefighter, and he had no direct information from Decedent
regarding the number of fires he fought throughout his career. Id. at 36. He agreed
that some epidemiologic studies of firefighters and cancer found no increased risk
for the development of lung cancer. Id. at 42, 45. Dr. Singer further agreed that
90% of lung cancer cases arise in smokers and that cigarette smoke contains the
same Group 1 carcinogens as the smoke Decedent would have encountered as a
firefighter. Id. at 52, 58. Dr. Singer acknowledged that Decedent was exposed to
carcinogens while smoking cigarettes; however, “he also had significant exposure to
fires and diesel fuel.” Id. at 65-66. As a result of his combined exposure to Group
1 carcinogens, Dr. Singer believed that Decedent was at greater risk of developing
lung cancer. Id. at 66.
B. Employer’s Evidence
Employer presented the deposition testimonies of Drs. Andrew Haas and Tee
Guidotti.
Dr. Haas is a board-certified pulmonary critical-care physician whose practice
focuses on patients with documented lung abnormalities, including nodules and
masses, enlarged lymph nodes, and pleural effusion. C.R., Item No. 30, Haas Dep.,
11/14/14, at 7-8. Approximately 65% of Dr. Haas’s patients present with a diagnosis
of lung cancer or a condition that leads to a diagnosis of lung cancer. Id. Dr. Haas
found no evidence in Decedent’s imaging reports that indicated an exposure to
asbestos. Id. at 27-28. Given Decedent’s history of smoking, Dr. Haas believed the
carcinogens in cigarette smoke were the primary agent that caused his lung cancer.
Id. at 28. Therefore, Dr. Haas opined that Decedent’s history of smoking contributed
significantly to the development of his lung cancer. Id. at 24. Dr. Haas agreed with
9
epidemiologic studies which found no association between firefighters and an
increased risk of developing lung cancer. Id. at 31-32.
Dr. Haas agreed that Decedent was exposed to diesel fuel exhaust inside the
fire house and during fire responses, and he agreed that smoke from fires contains
Group 1 carcinogens, including arsenic, asbestos, and dioxin. Id. at 38, 42. Dr.
Haas’s opinion that Decedent’s smoking caused his lung cancer was based on the
frequency with which Decedent smoked and his “quantifiable exposure” to those
carcinogens. Id. at 40. Dr. Haas did not believe one could quantify Decedent’s
exposure to carcinogens during his career as a firefighter. Id. at 40. He conceded
that a smoker presenting with additional risk factors for lung cancer, such as family
history, would have an increased risk of developing lung cancer. Id. at 43.
Dr. Guidotti is board certified in internal, pulmonary, and occupational
medicine. C.R., Item No. 29, Guidotti Dep., 1/21/13, at 10. He is also trained in the
fields of epidemiology and toxicology, and has investigated the relationship between
firefighters and their exposure to occupational and environmental hazards. Id. at 12,
15-16. Dr. Guidotti distinguished his training from Dr. Singer’s oncology
background, opining that oncologists are trained in cancer diagnosis and
management, but not with respect to the causes of cancer. Id. at 12.
Dr. Guidotti reviewed several reports authored by Dr. Singer in conjunction
with matters involving other firefighters who claimed their cancers were the result
of occupational diseases. Id. at 20-21. He was unable to determine the methodology
Dr. Singer used to arrive at his conclusions regarding the relationship between
firefighters and occupational disease. Id. at 22. Moreover, Dr. Guidotti felt Dr.
Singer lacked the expertise and knowledge required to prove general causation in
the area of occupational disease. Id. at 24. Dr. Guidotti did not provide an opinion
10
as to whether Decedent’s cancer was caused by his exposure to carcinogens while
employed as a firefighter.
C. First WCJ Decision
The WCJ granted Claimant’s fatal claim petition in a decision circulated on
February 2, 2016. C.R., Item No. 6. The WCJ credited Claimant’s testimony
regarding her relationship with Decedent and Brennan’s testimony as to his
experiences working with Decedent as a firefighter. Id., Finding of Fact (F.F.) Nos.
6-7. The WCJ found that Decedent worked continuously as a firefighter for more
than four years, during which period he was exposed to IARC-identified Group 1
carcinogens, and his last date of employment was July 31, 2006. Id., F.F. Nos. 8,
10(a). The WCJ further found that Decedent was not diagnosed with cancer until
after his exposure ceased. Id. The WCJ credited Dr. Singer’s opinion that
Decedent’s work as a firefighter was a significant contributing factor in the
development of his lung cancer. Id. The WCJ rejected Dr. Haas’s opinion that
Decedent’s cigarette smoking was the sole cause of his lung cancer. Id. He rejected
the testimony of Dr. Guidotti to the extent it contradicted Dr. Singer’s testimony.
Id., F.F. No. 9.
Based on these findings and credibility determinations, the WCJ concluded
that Claimant was entitled to the statutory presumptions available for claims under
Sections 108(o) and 108(r) of the Act. Id., F.F. Nos. 8, 10(b)-(d). Furthermore,
having rejected the opinions of Employer’s experts, the WCJ found that Employer
failed to overcome the presumption that Decedent’s cancer was related to his work
as a firefighter. Id., F.F. Nos. 8-9. Therefore, the WCJ granted Claimant’s fatal
claim petition and awarded her 51% of Decedent’s AWW as of July 31, 2006, from
November 23, 2011, and ongoing. Id. at 15. The WCJ directed Employer to produce
11
a statement of Decedent’s wages as of July 31, 2006, for purposes of calculating his
AWW. Id.
Employer appealed to the Board, challenging Claimant’s entitlement to the
statutory presumption available for either Section 108(o) or Section 108(r) claims,
as her fatal claim petition was filed more than 300 weeks from Decedent’s last
possible workplace exposure to a IARC-identified Group 1 carcinogen, and the WCJ
made no findings that Decedent was ever exposed to heat, smoke, fumes, or gasses
during his employment as a firefighter. Employer also argued that Dr. Singer’s
testimony was incompetent.
This Court issued its decision in Sladek I while Employer’s appeal was
pending before the Board. In light of that decision, the Board remanded the matter
to the WCJ for reconsideration of Claimant’s entitlement to the statutory
presumption applicable to her Section 108(r) claim. C.R., Item No. 9. The Board
also directed that the remaining issues raised in Employer’s appeal should be
addressed by the WCJ on remand. Id.
D. Second WCJ Decision
The WCJ circulated a second decision on June 11, 2019, in which he largely
reiterated his previous findings of fact and conclusions of law. C.R., Item No. 11.
With regard to the Board’s directive that the WCJ reconsider his application of the
statutory presumption, the WCJ found that the Board’s remand order was “in part”
rendered moot by the Supreme Court’s holding in Sladek II that a claimant seeking
benefits under Section 108(r) only need demonstrate that his cancer is a type caused
by Group 1 carcinogens.
12
The WCJ found that Claimant was entitled to the presumption in Sections
301(e) and 301(f) that Decedent’s cancer was related to his employment as a
firefighter because he worked continuously as a firefighter for more than four years,
during which he was exposed to IARC-identified Group 1 carcinogens, including
diesel exhaust and smoke, and Decedent was not diagnosed with cancer until after
his exposure ceased. The WCJ once again rejected the opinions of Drs. Haas and
Guidotti as not credible or persuasive, and concluded that Employer’s evidence
failed to rebut the statutory presumption that Claimant’s cancer was caused by his
employment as a firefighter. Id., F.F. No. 9. The WCJ granted Claimant’s fatal
petition and directed payment of 51% of Decedent’s AWW from November 23,
2011, ongoing, and directed that Employer produce a statement of Decedent’s wages
as of July 31, 2006, for purposes of calculating his AWW. Id.
Employer appealed to the Board, which affirmed. This appeal followed.10
II. Issues
Employer raises the following issues on appeal: 1) whether the WCJ erred in
concluding that Decedent suffered from an occupational disease under Section
108(o) of the Act; 2) whether Claimant established the last date of Decedent’s
exposure to an occupational hazard; and 3) whether the WCJ erred in concluding
that Decedent’s 2006 wages should be used to calculate his AWW.
10
Our review of an order of the Board is limited to determining whether the necessary
findings of fact are supported by substantial evidence, whether Board procedures were violated,
whether constitutional rights were violated, or whether an error of law was committed. Walter v.
Workers’ Comp. Appeal Bd. (Evangelical Cmty. Hosp.), 128 A.3d 367, 371 n.5 (Pa. Cmwlth.
2015).
13
III. Discussion
First, we address whether the WCJ erred in awarding Claimant benefits
pursuant to Section 108(o) of the Act, which provides that an occupational disease
includes:
[d]iseases of the heart and lungs, resulting in either
temporary or permanent total or partial disability or death,
after four years or more of service in fire fighting for the
benefit or safety of the public, caused by extreme over-
exertion in times of stress or danger or by exposure to heat,
smoke, fumes or gasses, arising directly out of the
employment of such firemen.
77 P.S. § 27.1(o).
Employer argues that the WCJ exceeded the scope of review set forth in the
Board’s remand order, which Employer maintains was limited to re-weighing the
evidence in light of this Court’s decision in Sladek I and determining Claimant’s
entitlement to benefits under Section 108(r) for cancer suffered by a firefighter. As
a result, Employer contends it limited its defense on remand to Claimant’s Section
108(r) claim, and it was denied the opportunity to defend against an award of benefits
under Section 108(o). Additionally, Claimant’s fatal claim petition only cited
Section 108(r) as a means of recovery, and at no time did she amend her petition to
seek benefits under a different provision of the Act.
We agree that the Board’s remand order did not directly address the WCJ’s
award of benefits under Section 108(o). Rather, the Board directed the WCJ to
reconsider his decision in light of Sladek I, which implicated Claimant’s right to
benefits under Section 108(r) of the Act. However, the Board also directed that the
WCJ address Employer’s remaining issues raised in its appeal to the Board. C.R.,
Item No. 9, at 5 n.5. As that appeal explicitly challenged the WCJ’s award of
14
benefits under Section 108(o) of the Act, Employer was clearly on notice that the
WCJ would address Claimant’s entitlement to benefits under Section 108(o), and,
therefore, Employer’s argument that it was denied the opportunity to defend against
such a claim is, at best, disingenuous.
We must also reject Employer’s argument to the extent it suggests the WCJ
lacked authority to grant benefits under a different provision of the Act than cited by
Claimant in her fatal claim petition, as a claimant’s petition will be considered as
filed under any section of the Act to which he or she is entitled to relief. See Caffey
v. Workers’ Comp. Appeal Bd. (City of Phila.), 185 A.3d 437 (Pa. Cmwlth. 2018).
Next, we address whether Claimant established the last date of Decedent’s
workplace exposure to an occupational hazard. Employer concedes that Decedent’s
last date of work as a firefighter was July 31, 2006. However, the WCJ made no
such finding regarding Decedent’s last date of exposure to a Group 1 carcinogen.
Because this second, and unknown, date is the one that triggers the limitation period
for filing an occupational disease claim, Employer argues that Claimant cannot
demonstrate that her fatal claim petition was timely filed. In affirming the WCJ, the
Board simply assumed the last date of Decedent’s employment was also his last date
of exposure to an occupational hazard. Employer submits that such an assumption
constitutes reversible error.
We discern no error by the Board, as the record demonstrates that Decedent’s
last date of exposure was July 31, 2006. When considering whether the WCJ’s
decision is supported by substantial evidence, this Court must view the evidence in
the light most favorable to Claimant, as she was the party who prevailed before the
WCJ, and we are to draw all reasonable inferences that are deducible from the
evidence in support of that decision. Wawa v. Workers’ Comp. Appeal Bd. (Seltzer),
15
951 A.2d 405, 408 (Pa. Cmwlth. 2008). The WCJ concluded that Claimant was
entitled to survivor benefits under Section 108(o) of the Act, which required that she
establish Decedent died within 300 weeks (roughly 5.75 years) of his last known
exposure to an occupational hazard. While the WCJ did not make a specific finding
as to the date of last exposure, he did find that Decedent’s last date of work was July
31, 2006, and that “during his work” Decedent was exposed to Group 1
carcinogens. C.R., Item No. 6, F.F. No. 8. Moreover, the WCJ credited Brennan’s
testimony that diesel engines ran inside the firehouse twice daily during equipment
checks. As a result, the record demonstrates that Decedent was exposed daily to
diesel fuel emissions, a Group 1 carcinogen. Such exposure would necessarily
include July 31, 2006, his last day of work as a firefighter. Therefore, the record
demonstrates that Decedent would have been exposed to an occupational hazard on
his last date of work, approximately five years and four months prior to his death
from lung cancer on November 23, 2011.
Accordingly, Claimant’s fatal claim petition was timely, as Decedent’s
November 2011 death from lung cancer falls within the 300-week period set forth
in Section 301(c)(1) of the Act. Claimant’s Section 108(r) claim was also timely
filed, as Section 301(c)(2) only requires that it be filed within 600 weeks, or 11.5
years, of Decedent’s last workplace exposure.
Finally, we address whether the WCJ incorrectly calculated Decedent’s
AWW. Employer argues that Decedent’s wages should be calculated based on the
date his disability arose in July 2011. Therefore, his earnings from Walmart,
Decedent’s employer at the time of his cancer diagnosis, and not his AWW as a
firefighter at the time he retired, should govern the amount of compensation
Claimant receives. Otherwise, Claimant stands to receive compensation at a rate
16
higher than that which Decedent earned at the time he was disabled. Employer
further argues that the WCJ improperly placed the burden of establishing Decedent’s
wages on Employer when he directed that Employer provide a statement of
Decedent’s wages as of July 31, 2006.
We reject Employer’s argument, as this Court has previously addressed the
issue of wage calculation for occupational disease matters in Fisk v. Workmen’s
Compensation Appeal Board (General Electric), 633 A.2d 1305 (Pa. Cmwlth.
1993). In Fisk, we held that a claimant in an occupational disease matter is entitled
to benefits based on his wages at the time of his last exposure to the occupational
hazard. This Court recognized that, in such cases, calculation of benefits as of the
date a claimant’s occupational disease manifested itself would result in an illogical
and unjust result for those employees who are unemployed or retired as of the
manifestation date, as they would have no earnings upon which to base an award.
Fisk, 633 A.2d at 1307. Therefore, we concluded that “for the purpose of calculating
benefits in occupational disease cases under the Act, the date of injury must be the
date of last exposure.” Id.As Decedent’s last date of exposure to the occupational hazard took place on
July 31, 2006, the Board correctly affirmed the WCJ’s decision directing the
payment of benefits based on Decedent’s wages as of that date. We likewise dismiss
Employer’s suggestion that the WCJ and Board improperly placed the burden of
ascertaining the amount of those wages on Employer, as Employer was the entity in
possession of records relating to Decedent’s actual wages and his AWW, and
Employer has not asserted that such information is unavailable.
17
IV. Conclusion
As we have concluded that the WCJ did not exceed the scope of the Board’s
September 20, 2017 remand order, the record supports a finding that Decedent’s last
date of exposure to an occupational hazard was July 31, 2006, and the WCJ correctly
found that Claimant’s benefits should be calculated as of Decedent’s last date of
exposure, we affirm the Board.
__________________________________
ELLEN CEISLER, Judge
18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Philadelphia, :
Petitioner :
:
v. : No. 1215 C.D. 2020
:
Estate of Thomas Burke :
(Workers’ Compensation :
Appeal Board), :
Respondent :
ORDER
AND NOW, this 30th day of July, 2021, the October 30, 2020 order of the
Workers’ Compensation Appeal Board is hereby AFFIRMED.
__________________________________
ELLEN CEISLER, Judge