W. Jordan v. WCAB (City of Philadelphia)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
William Jordan, :
Petitioner :
:
v. : No. 270 C.D. 2018
: SUBMITTED: July 6, 2018
Workers' Compensation Appeal :
Board (City of Philadelphia), :
Respondent :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: September 26, 2018
William Jordan (Claimant), a firefighter for the City of Philadelphia
Fire Department (Employer or City), petitions for review of an order of the Workers’
Compensation Appeal Board (Board) that affirmed the decision of a Workers’
Compensation Judge (WCJ) denying his claim petition. On appeal, Claimant
maintains that the WCJ and Board erred by misinterpreting Sections 108(r) and
301(f) of the Workers’ Compensation Act (Act),1 77 P.S. §§ 27.1(r) and 414, part of
the 2011 amendments to the Act known as Act 46. Section 108(r) added cancer
suffered by a firefighter caused by exposure to a known carcinogen recognized as a
Group 1 carcinogen by the International Agency for Research on Cancer (IARC) as
a compensable occupational disease. Section 301(f) limited cancer claims to
1
Act of June 2, 1915, P.L. 736, as amended, added by Section 1 of the Act of July 7, 2011,
P.L. 251.
firefighters who could show four or more years of continuous firefighting service
and the absence of cancer prior thereto. In accordance with City of Philadelphia
Fire Department v. Workers’ Compensation Appeal Board (Sladek), 144 A.3d 1011
(Pa. Cmwlth. 2016) (en banc), appeal granted, 167 A.3d 707 (Pa. 2017),2 we affirm.
The pertinent facts are as follows. In 1977, Claimant joined the City’s
Fire Department. Over the course of his employment, he has held the positions of
firefighter, fire paramedic lieutenant, and fire paramedic captain. When he was
hired, he passed a physical with no restrictions on his ability to work and no
treatment for any type of cancer. With each promotion, he passed a physical with
no restrictions. Out of his thirty-five years as a firefighter/paramedic, he has spent
thirty-three years in a firehouse. He continues to do so. [WCJ’s May 22, 2017,
Decision, Finding of Fact (F.F.) No. 3(a), (b), and (e).]
In January 2004, Claimant was diagnosed with prostate cancer at age
fifty-two. Before that time, he had never been treated or diagnosed with any type of
cancer. [Id., No. 3(b) and (o).] By way of background, his father and two uncles
had prostate cancer when they were in their seventies. [Id., No. 3(q).] Additionally,
2
In Sladek, the Supreme Court granted review on the following issues:
(1) Whether the Commonwealth Court, in a case of first
impression, committed an error of law by misinterpreting Section
108(r) to require a firefighter diagnosed with cancer caused by an
IARC Group I carcinogen to establish exposure to a specific
carcinogen that causes his/her cancer in order to gain the rebuttable
presumption provided by the law?; and
(2) Whether the Commonwealth Court committed an error
of law by concluding that a legislatively-created presumption of
compensability may be competently rebutted by a general causation
opinion, based entirely upon epidemiology, without any opinion
specific to the firefighter/claimant making the claim?
167 A.3d at 707.
2
Claimant smoked about one-half pack of cigarettes per day from age nineteen to
thirty-four. Further, before his diagnosis, firefighters were permitted to smoke in
firehouses as a matter of course. (Id.) Claimant sat in common areas with coworkers
who smoked at every one of his stops. (August 14, 2012, Deposition of Claimant,
Notes of Testimony at 33.) In June 2004, Claimant had surgery and missed three
months of work. He continues to undergo various forms of treatment. [F.F. No.
3(o).]
On May 18, 2012, Claimant filed a claim petition alleging that he
suffered an occupational disease in the nature of prostate cancer as a result of his
exposure to IARC Group I carcinogens while working for Employer and that this
exposure was a substantial contributing factor in his diagnosis. Alleging an injury
date of January 2, 2004, he further averred that he was entitled to temporary total
disability benefits from June 22 to September 1, 2004, and payment of medical
expenses related to his diagnosis. (Id., No. 1.) In support of his position, Claimant
presented, inter alia, the January 2013 global deposition testimony of Barry L.
Singer, M.D., which was taken related to all pending workers’ compensation cases
involving diagnosed prostate cancer in firefighters employed by Employer and
represented by present counsel. (Id., No. 8.) Employer denied Claimant’s
allegations. Subsequently, the WCJ denied Claimant’s claim petition. The Board
affirmed and Claimant’s petition for review followed.
In order to prove that a firefighter’s cancer is an occupational disease,
he must show diagnosis of a type of cancer “caused by exposure to a known
carcinogen which is recognized as a Group 1 carcinogen.” 77 P.S. § 27.1(r)
(emphasis added). As this Court summarized:
Once a firefighter establishes that his type of cancer is an
occupational disease, then he may take advantage of the
3
statutory presumption in Section 301(e) and (f) of the Act.
The presumption relieves [him] of the need to prove that
his cancer was caused by his workplace exposure and not
another cause. See Section 301(e) of the Act, 77 P.S. §
413. So long as [he] can show four years of continuous
service and the absence of cancer prior to that service, he
is entitled to compensation under Section 301(f) of the
Act, 77 P.S. § 414.
Sladek, 144 A.3d at 1020.
Here, Claimant in support of his position cites the WCJ’s finding that
“Claimant’s testimony and medical and expert evidence credibly and persuasively
establishe[d] that [he] was exposed to Group I carcinogens as defined by the IARC
during his employment as a Philadelphia firefighter/Captain.” (F.F. No. 25.) In
addition, he emphasizes the WCJ’s conclusion that the “evidence of record as a
whole” supported that finding and that Employer never rebutted Claimant’s
testimony regarding his exposure. (Id.) Accordingly, asserting that he satisfied the
presumption that his prostate cancer was caused by his workplace exposure and that
Employer failed to rebut it, Claimant maintains that the uncontradicted record and a
proper interpretation of Sections 108(r) and 301(f) of the Act mandate an award of
benefits. His position is without merit.
As the WCJ ultimately concluded, Claimant failed to meet his burden
of proof due to failure to establish exposure to a particular Group I carcinogen
specifically known to cause prostate cancer. (Id., Nos. 25-26.) The Board agreed,
determining that Claimant failed to prove that his cancer was the type caused by
exposure to a Group 1 carcinogen to which he was exposed in the workplace in
accordance with this Court’s holding in Sladek. In so determining, the Board
emphasized the testimony of Dr. Singer in his global deposition to the effect that
“we know that several carcinogens could cause prostate cancer but we do not know
4
which exposures specifically caused a certain claimant’s prostate cancer.” (February
22, 2018, Board Decision at 15.) Consistent with this Court’s precedent, therefore,
the Board determined that the burden did not shift to Employer to rebut an
established causal relationship.3 Hutz v. Workers’ Comp. Appeal Bd. (City of Phila.),
147 A.3d 35, 47-48 (Pa. Cmwlth. 2016); Sladek, 144 A.3d at 1020-21.
Accordingly, pursuant to our holding in Sladek, we affirm.4
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge
Judge Fizzano Cannon did not participate in the decision of this case.
3
As the Board also observed, Claimant was not entitled to the statutory presumption of
compensability found in Section 301(f) of the Act because it applies only to firefighters who file
their claims within 300 weeks of their last date of workplace exposure and establish that their type
of cancer is an occupational disease. Here, although Claimant filed his claim petition in May 2012
alleging an injury date of January 2, 2004, thereby satisfying the 600-week statute of limitations
set forth in Section 301(f), he filed his claim more than 300 weeks after his last exposure.
(February 22, 2018, Board Decision at 16 n.14) [citing Fargo v. Workers’ Comp. Appeal Bd. (City
of Phila.), 148 A.3d 514 (Pa. Cmwlth. 2016), appeal denied, 168 A.3d 1245 (Pa. 2017)].
4
“It is axiomatic that a decision of an appellate court remains binding precedent, even if it has
been appealed, unless and until it is overturned by the Pennsylvania Supreme Court.” Germantown
Cab Co. v. Phila. Parking Auth., 27 A.3d 285, 287 (Pa. Cmwlth. 2011).
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
William Jordan, :
Petitioner :
:
v. : No. 270 C.D. 2018
:
Workers' Compensation Appeal :
Board (City of Philadelphia), :
Respondent :
ORDER
AND NOW, this 26th day of September, 2018, the order of the Workers’
Compensation Appeal Board is hereby AFFIRMED.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge