City of Williamsport v. WCAB (Cole (Deceased))

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Williamsport, :
:
Petitioner :
:
v. : No. 620 C.D. 2015
: Argued: February 9, 2016
Workers’ Compensation Appeal :
Board (Cole (Deceased)), :
:
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE COLINS FILED: July 18, 2016
The City of Williamsport (Employer) petitions for review of an order
of the Workers’ Compensation Appeal Board (Board) that affirmed the decision
and order of a Workers’ Compensation Judge (WCJ), which granted a fatal claim
petition of Ursula Miele-Cole (Claimant) on behalf of her husband, Jeffrey Cole
(Decedent) pursuant to Section 108(r) of the Workers’ Compensation Act (Act),1
relating to cancers suffered by firefighters. Because we conclude that Claimant did
not establish that Decedent had direct exposure to a known carcinogen classified as
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1–1041.1, 2501–2708. Section 108(r),
77 P.S. § 27.1(r), was added by the Act of July 7, 2011, P.L. 251, and this amendment took
immediate effect.
a Group 1 carcinogen by the International Agency for Research on Cancer (IARC)
as required by Section 301(f) of the Act,2 we reverse the order of the Board.
On March 15, 2012, Claimant filed the claim petition, alleging that
Decedent’s death from gastric cancer in October 2011 was causally related to his
employment with Employer as a firefighter from 1980 until the time of his death.
Claimant based the fatal claim petition on two occupational disease provisions of
the Act: Section 108(o), relating to diseases of the heart and lungs caused by over-
exertion or exposure to heat, smoke, fumes or gases arising out of the duty of a
firefighter, and Section 108(r). 77 P.S. §§ 27.1(o), (r). Employer filed an answer
denying all material allegations and issued a Notice of Workers’ Compensation
Denial asserting that Decedent did not suffer a work-related injury.
In the proceedings before the WCJ, Claimant testified that she and
Decedent began dating in 1992 and married in 2000. (May 24, 2012 Hearing
Transcript (H.T.) at 10-11, 14, 34, Reproduced Record (R.R.) 10a-11a, 14a, 34a.)
Claimant testified that during the period they were together, she saw Decedent
approximately 15 times after a fire when he had not had the opportunity to shower
at work following his shift and on those occasions he smelled “smoky” and
appeared “[l]ike someone who came out of ashes.” (Id. at 14, R.R. 14a.) Claimant
stated that Decedent had been suffering from stomach discomfort for
approximately three years when in June 2011 he developed deep vein thrombosis
in his lower left leg and then stomach hemorrhaging that ultimately led to his
hospitalization and cancer diagnosis in July 2011. (Id. at 15-17, 40, 42, R.R. 15a-
17a, 40a, 42a.)
2
77 P.S. § 414, added by Act of July 7, 2011, P.L. 251.
2
Claimant presented the testimony of an expert witness, Jonathan L.
Gelfand, M.D., who is board certified in internal medicine and pulmonary disease
and whose clinic practice consists primarily of treatment of patients with
pulmonary diseases, including lung cancer and mesothelioma. (Gelfand Dep. at 6-
8, R.R. 59a-61a.) Dr. Gelfand opined that Decedent had exposure to a variety of
carcinogens during his career as a firefighter, including asbestos, and that his work
as a firefighter and these exposures were a substantial contributing factor to his
death from gastric cancer. (Id. at 18-19, R.R. 71a-72a.) He testified that it was his
belief that Decedent was exposed to asbestos because asbestos was a common
building material until the 1980s which can become friable or fragile during fires
or building collapse and firefighters who have fought fires for any considerable
amount of time are generally exposed to asbestos. (Id. at 19-21, 26-27, R.R. 72a-
74a, 79a-80a.)
Employer presented the testimony of its expert, David Prince, M.D.,
who is board certified in internal medicine, pulmonary medicine, critical care
medicine and sleep medicine and who reviewed Decedent’s medical records.
(Prince Dep. at 7, 14, R.R. 117a, 124a.) Dr. Prince testified that Decedent had a
history of high blood pressure, smoking, obesity and stomach upset that were
substantial risk factors for gastric cancer. (Id. at 17-18, 26, R.R. 127a-128a, 136a.)
Dr. Prince stated that it was his opinion that Decedent’s development of gastric
cancer was not related to firefighting. (Id. at 25, R.R. 135a.) Dr. Prince further
testified that epidemiologic evidence does not support a proven risk of gastric
cancer for firefighters and that asbestos exposure is not associated with a risk of
gastric cancer, among firefighters or in any occupation. (Id. at 25, 27-29, R.R.
135a, 137a-139a.)
3
The WCJ granted the fatal claim petition under Section 108(r),
concluding that Claimant had established that Decedent contracted gastric cancer
as a result of direct exposure to smoke from municipal fires that contained Group 1
carcinogens as recognized by the IARC. (WCJ Decision Findings of Fact (F.F.)
¶¶65, 68, Conclusion of Law (C.L.) ¶13.) Employer appealed the WCJ’s decision
to the Board, which affirmed. Employer thereafter petitioned this Court for review
of the Board’s order.3
In Act 46 of 2011, the General Assembly enacted Sections 108(r) and
301(f), creating a new occupational disease provision to provide a new
presumption of compensable disability for firefighters who suffer from cancer.
Act of July 7, 2011, P.L. 251. Section 108(r) recognizes the occupational disease
of “[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.” 77 P.S. § 27.1(r). Section 301(f) provides, in
relevant part, that:
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.
3
This Court’s review of an appeal from a determination by the Board is limited to determining
whether an error of law was committed, whether the WCJ’s necessary findings of fact are
supported by substantial evidence and whether Board procedures or constitutional rights were
violated. 2 Pa. C.S. § 704; Repash v. Workers’ Compensation Appeal Board (City of
Philadelphia), 961 A.2d 227, 231 n.5 (Pa. Cmwlth. 2008).
4
77 P.S. § 414. Employer argues that Claimant did not present evidence sufficient
to satisfy the first requirement of Section 301(f) that she establish Decedent had
“direct exposure” to a carcinogen recognized as Group 1 by the IARC.4 Id.
In determining that Claimant had shown that Decedent was exposed to
a Group 1 carcinogen, the WCJ relied principally on the testimony of Dr. Gelfand
and IARC Monograph Volume 98 related to carcinogenic risks associated with the
occupations of firefighting, painting and shiftwork, which Dr. Gelfand referenced
in his deposition and which was admitted into evidence. (Claimant Ex. 15, IARC
Monograph Vol. 98: Painting, Firefighting and Shiftwork, R.R. 175a-185a.) Dr.
Gelfand testified that it was his opinion that
[Decedent] had exposure to a variety of carcinogens including
and not limited to asbestos. He did die of metastatic stomach
cancer. In my opinion, to a reasonable degree of medical
certainty, [Decedent’s] career as a firefighter for over 30 years
and the exposures he experienced were a substantial
contributing factor to his death from stomach cancer as a result
of the previously noted exposures. Those exposures to
recognized carcinogens were a substantial contributing factor to
his stomach cancer and to his death.
(Gelfand Dep. at 19, R.R. 72a.)
Dr. Gelfand explained that it was his conclusion that Decedent had
been exposed to asbestos because
[a]sbestos was a commonly-used building material for decades
around the world and in the United States and in Pennsylvania.
It was used as insulation predominantly, but it was also in
ceiling tiles, floor tiles, a variety of other building materials. In
the – it was also used in the construction of many fire stations
4
Employer did not challenge that Claimant satisfied the other two requirements in Section 301(f)
that Decedent served four or more years of continuous firefighting duties and passed a physical
examination prior to asserting this claim that did not reveal any evidence of cancer.
5
around the state and was present there until the 1980s roughly
when there was asbestos abatement, or when asbestos
abatement programs began.
But it was common for asbestos in buildings to become friable
or fragile and to release dust. But separate from that, as part of
the firefighting activity, it’s common to engage in some
demolition; pulling ceilings and walls, or the buildings
themselves were and become unstable and may at times
collapse. At such times, asbestos is released into the air and
can be inhaled by anyone in that particular vicinity.
(Id. at 20-21, R.R. 73a-74a.) Dr. Gelfand noted that asbestos is classified as a
Group 1 carcinogen in the IARC monograph with cancer sites in humans listed as
the “lung, mesothelioma, larynx, gastrointestinal tract.” (Id. at 19-20, R.R. 72a-
73a; Claimant Ex. 15, IARC Monograph at 401, R.R. 183a.) Dr. Gelfand stated
that Decedent would also likely have been exposed to other carcinogens in his
employment as a firefighter, but he could not specifically name any additional
carcinogens. (Gelfand Dep. at 27, 34, R.R. 80a, 87a.)
Dr. Gelfand testified that he based his opinion that Decedent was
exposed to asbestos and other carcinogens on Claimant’s testimony, his review of
Decedent’s medical records, discussions with patients who are current or former
firefighters regarding their work, the IARC monograph and other medical literature
regarding the occupational exposure of firefighters to carcinogens. (Id. at 12-16,
19-22, R.R. 65a-69a, 72a-75a.) However, Dr. Gelfand admitted that he did not
examine Decedent, speak with Claimant, Decedent’s physicians or any individuals
who worked at Employer’s fire department; furthermore, Dr. Gelfand testified that
he did not review any records related to Decedent’s experience as a firefighter,
such as incident reports related to fires he fought or injuries sustained on the job.
(Id. at 12, 32-33, R.R. 65a, 85a-86a.) Dr. Gelfand was also asked at the outset of
6
his deposition to assume for the purposes of rendering his opinion that Claimant
had testified that Decedent was “exposed to heat, smoke, fumes, gasses, asbestos
and other materials” during his 31 year firefighting career5; similarly, in Dr.
Gelfand’s expert report he noted that Decedent “was exposed to heat, smoke,
fumes, gases and probable exposure to asbestos, and it has been reported that he
has been exposed to a variety of carcinogens.” (Id. at 18, R.R. 71a; Gelfand Dep.
Ex. 2, Expert Report at 2, R.R. 108a.) Dr. Gelfand conceded on cross-examination
that he did not in fact review Claimant’s testimony personally and that the
information that Decedent was exposed to heat, smoke, fumes, gases, asbestos and
other carcinogens did not appear in Decedent’s medical records but instead only in
correspondence from Claimant’s counsel. (Gelfand Dep. at 25, 36, R.R. 78a, 89a.)
In finding that Claimant had established that Decedent’s gastric
cancer was causally related to his workplace exposure to Group 1 carcinogen, the
WCJ credited the testimony of Claimant generally, specifically noting Claimant’s
testimony that Decedent had been exposed to smoke while fighting fires with
Employer. (WCJ Decision, F.F. ¶¶62-63, C.L. ¶9.) The WCJ also credited the
testimony of Dr. Gelfand and found the testimony of Dr. Prince to be not credible
or persuasive, specifically rejecting Dr. Prince’s assumptions regarding Decedent’s
smoking history and diet as lacking a basis in the record and rejecting Dr. Prince’s
conclusion that gastric cancer was not a special hazard for firefighters as contrary
to the IARC data and the presumption established by the General Assembly. (Id.
F.F. ¶¶66-67, C.L. ¶¶9, 11.) The WCJ also found credible the IARC monograph
cited by Dr. Gelfand and took notice of the agents classified as carcinogenic to
5
Employer objected at Dr. Gelfand’s deposition to this characterization of Claimant’s testimony.
(Gelfand Dep. at 18, R.R. 74a.)
7
humans; the WCJ specifically cited the conclusions in the monograph that various
substances are released during municipal fires, including asbestos, that asbestos is
a Group 1 carcinogen, and that the gastrointestinal tract is listed as a cancer site for
asbestos. (Id. F.F. ¶¶34-35, 64, C.L. ¶¶9, 12; Claimant Ex. 15, IARC Monograph
at 401, R.R. 183a.) The WCJ also noted that radioactivity (gamma activity) and
radionuclides (alpha and beta particle-emitting) were also listed as known Group 1
carcinogens for all types of cancers. (WCJ Decision, F.F. ¶35; Claimant Ex. 15,
IARC Monograph at 402, R.R. 184a.)
The Board affirmed the grant of the claim petition, concluding that
Claimant’s lay testimony was sufficient to establish exposure to smoke and that
Claimant was not required to show consistent exposure to a Group 1 carcinogen
but only direct exposure under Section 108(r). (Board Op. at 8-10.) The Board
further concluded that Dr. Gelfand properly relied on his knowledge of the
firefighting occupation and Claimant’s testimony regarding Decedent’s exposure
to smoke and that the WCJ did not err by considering the IARC monograph as it
related to Dr. Gelfand’s testimony. (Id. at 10-11.)
After a thorough review of the record in this matter, we conclude that
the record is devoid of competent evidence that Decedent had any direct exposure
to a known Group 1 carcinogen as required by Section 301(f) of the Act. The sole
evidence before the WCJ regarding Decedent’s fire department exposure was
Claimant’s testimony that Decedent came home from fires on more than 15
occasions smelling of smoke and with an ashy appearance. While such testimony
would be sufficient to show that Decedent was exposed to smoke and ash while
working for Employer, by itself it was insufficient to show exposure to asbestos or
any other specific Group 1 carcinogens within the smoke. Claimant did not admit
8
into evidence any Employer fire department logs, incident reports or building
inspection records relating to fires Decedent fought.6 Nor did Claimant attempt to
introduce the testimony of any fire department personnel or any other individuals
familiar with the construction of buildings in Williamsport upon which the WCJ
could presume carcinogens in the fires extinguished by Decedent.
While Dr. Gelfand did testify that Decedent was exposed to Group 1
carcinogens, his testimony clearly lacks a proper foundation upon which that
conclusion could be based. Dr. Gelfand did not meet with or examine Decedent,
speak with Claimant, review Decedent’s medical or employment files or speak
with anyone at Employer’s fire department regarding the type of fires that were
fought and Decedent’s role in fighting those fires. Indeed, the only piece of
information that Dr. Gelfand had regarding Decedent’s work history – that he was
exposed to heat, smoke, fumes, gases, asbestos and other carcinogens – was an
unfounded assumption with no basis in the record. Dr. Gelfand admitted that his
testimony was based solely on his general knowledge of the firefighting profession
and the general exposures of firefighters to carcinogens and was not based on
Decedent’s work history or the types of fires fought by Employer’s fire department
during his employment.7
6
Claimant attempted to introduce into evidence a July 2009 incident report and medical records
related to this incident at the May 24, 2012 hearing in this matter, however the WCJ declined to
admit the report without testimony or a stipulation that the documents were kept in the ordinary
course of business. (H.T. at 23-27, R.R. 23a-27a.) It does not appear that Claimant sought to
reintroduce this evidence at a later date.
7
Dr. Gelfand testified on cross-examination by Employer’s counsel:
Q. It’s your testimony that you believe just because he was a firefighter that he
had to have been exposed to asbestos over those 30 years?
A. Yes.
...
9
Furthermore, the introduction of the IARC monograph into the
evidence could not remedy the deficiency in Claimant’s case. The WCJ relied on
the IARC monograph to show that asbestos, along with radioactive particles, are
Group 1 carcinogens that are found in municipal fires with cancer sites including
the gastrointestinal tract. However, the monograph provides only that these
carcinogens “have been detected in fires” and does not detail whether they are
present in all, some or most fires or whether they are present in municipal fires or
wildfires. (Claimant Ex. 15, IARC Monograph at 400, R.R. 182a.) Claimant
could not satisfy the requirement of Section 301(f) that she establish direct
exposure to a carcinogen recognized as Group 1 by the IARC simply by
referencing the IARC monograph itself.
In holding that the evidence presented did not establish direct
exposure to Group 1 carcinogens, we recognize that the question of whether a
worker has been exposed to hazardous material in the workplace for the purpose of
Section 108 of the Act is a question of fact for the WCJ and the claimant may rely
on lay testimony, rather than that of an expert, to show the existence of, and
exposure to, a hazard. Baptiste v. Workers’ Compensation Appeal Board (Eichleay
Corp.), 889 A.2d 641, 645, 647 (Pa. Cmwlth. 2005); Mauger and Co. v.
Workmen’s Compensation Appeal Board (Waltz), 598 A.2d 1035, 1037 (Pa.
Q. Is it your opinion, Doctor, that any firefighter that gets gastric cancer gets that
solely because of their occupation?
A. There may be other contributing factors. But if a firefighter has been actively
engaged in those sorts of activities for any length of time, then, it’s as a general
rule very likely that it will – if a firefighter then develops gastric cancer, that that
exposure would have contributed to it. That’s a very general comment about all
firefighters.
(Gelfand Dep. at 26-27, R.R. 79a-80a.)
10
Cmwlth. 1991); Witco–Kendall Co. v. Workmen’s Compensation Appeal Board
(Adams), 562 A.2d 397, 400 (Pa. Cmwlth. 1989). As this Court has recognized,
“the claimant’s burden of proof [for exposure to a hazardous material] is not overly
demanding.” Witco–Kendall Co., 562 A.2d at 400; see also Baptiste, 889 A.2d at
645.
Nevertheless, the testimony of exposure to a workplace hazard must
be competent and a WCJ must ensure that the evidence presented complies with
the rules of evidence related to lay and expert testimony. Gibson v. Workers’
Compensation Appeal Board (Armco Stainless & Alloy Products), 861 A.2d 938,
944, 947 (Pa. 2004). To be competent, an expert must base his testimony on facts
warranted by the record or reasonable inferences drawn therefrom. Pa. R.E. 703;
Collins v. Hand, 246 A.2d 398, 404 (Pa. 1968); Mauger, 598 A.2d at 1038.
Though Dr. Gelfand professed to have an awareness of the working conditions of
municipal firefighters, Dr. Gelfand had no knowledge of the facts of Decedent’s
career or the fires fought in the City of Williamsport. Consequently, the WCJ
erred in relying on such testimony to show exposure to a workplace hazard that
would support an occupational disease presumption under the Act.
Accordingly, we conclude that Claimant did not present substantial,
competent evidence that Decedent had “direct exposure” to a known IARC Group
1 carcinogen as required by Section 301(f) and therefore the WCJ improperly
11
granted the claim petition under Section 108(r) of the Act. Based on this ruling,
we need not address the remaining arguments advanced by Employer.8
____________________________________
JAMES GARDNER COLINS, Senior Judge
8
Claimant argues that this Court should affirm the grant of the claim petition pursuant to Section
108(o), the occupational disease provision for diseases of the heart and lungs caused by over-
exertion or exposure to heat, smoke, fumes or gases arising out of the duty of a firefighter,
because Decedent’s gastric cancer had spread to his lungs. Though Claimant invoked Section
108(o) in her claim petition, the WCJ did not state in his decision whether Claimant had proved a
claim pursuant to that subsection. Dr. Gelfand did not address any heart or lung conditions in his
expert report and explicitly denied a finding that Decedent’s gastric cancer had spread to his
lungs. (Gelfand Dep. at 26, R.R. 79a) (“Q. [The cancer] spread to the lungs? A. I don’t recall
any evidence – it doesn’t usually – stomach cancer doesn’t usually spread to the lungs, and I
don’t recall that it did in this case.”). Employer’s expert, Dr. Prince, testified that, while
Decedent suffered from blood clots in his lung and x-ray reports showed fluid in the lungs
consistent with the spread of cancer to his lungs, evidence that the cancer had in fact spread to
his lungs was inconclusive in the absence of an autopsy and, in any event, the blood clots and
possible spread of cancer to the lungs were precipitated by the gastric cancer; Dr. Prince further
testified he did not diagnose Decedent with heart or lung problems associated with his
firefighting activities. (Prince Dep. at 19-22, 24-27, R.R. 129a-132a, 134a-137a.) Thus, there is
insufficient basis in the record for an occupational disease award pursuant to Section 108(o).
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Williamsport, :
:
Petitioner :
:
v. : No. 620 C.D. 2015
:
Workers’ Compensation Appeal :
Board (Cole (Deceased)), :
:
Respondent :
ORDER
AND NOW, this 18th day of July, 2016, it is hereby ORDERED that
the order of the Workers’ Compensation Appeal Board in the above-captioned matter
is REVERSED.
____________________________________
JAMES GARDNER COLINS, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Williamsport, :
Petitioner :
: No. 620 C.D. 2015
v. :
: Argued: February 9, 2016
Workers’ Compensation Appeal :
Board (Cole (Deceased)), :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
CONCURRING AND DISSENTING
OPINION BY JUDGE McCULLOUGH FILED: July 18, 2016
I agree with the Majority to the extent that it concludes that, based
upon a review of the record in this matter, it is not clear that Ursula Miele-Cole
(Claimant) met her burden under section 301(f) of the Workers’ Compensation Act
(Act)1 to establish that her late husband, Jeffrey Cole (Decedent), had direct
exposure to a known carcinogen classified as a Group 1 carcinogen by the
International Agency for Research on Cancer (IARC). However, I respectfully
dissent because I believe that the matter should be remanded to the Workers’
Compensation Judge (WCJ) to make additional factual findings with respect to this
1
Act of June 2, 1915, P.L. 736, added by the Act of July 7, 2011, P.L. 251, as amended,
77 P.S. §414.
burden as it relates to section 108(r) of the Act,2 as well as the presumption of
causation under section 301(e) of the Act, 77 P.S. §413.
As the Majority notes, our General Assembly enacted new
occupational disease provisions with its passage of Act 46 in 2011, including
sections 108(r) and 301(f). Section 108(r) specifically recognizes as an
occupational disease “[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.” 77 P.S. §27.1(r). Section
301(f) provides, in relevant part, that:
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.
77 P.S. §414 (emphasis added).
Additionally, section 301(e) of the Act states that “[i]f 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.” 77 P.S. §413.
Generally, once a claimant establishes that the presumption applies, the burden
shifts to the employer to rebut the presumption with substantial, competent
2
Section 108(r) was added by the Act of July 7, 2011, P.L. 251, 77 P.S. §27.1(r).
PAM - 2
evidence. City of Philadelphia v. Workers’ Compensation Appeal Board (Kriebel),
29 A.3d 762, 769 (Pa. 2011).
However, it is not clear from the WCJ’s decision whether he applied
the presumption in this case. While the WCJ references the presumption in his
conclusions of law, as well as the shifting burden of proof once the threshold
requirements applicable to the presumption are met, he never states whether he
applied the same in rendering his decision. Such a determination is critical to this
case given the shifting burden of proof and the WCJ’s rejection of Employer’s
expert medical testimony. Hence, I believe that additional findings are necessary
to the resolution of this matter.
Moreover, in her fatal claim petition, Claimant alleged that
Decedent’s death from gastric cancer was causally related to his employment as a
firefighter for the City of Williamsport (Employer). The WCJ agreed and granted
Claimant’s fatal claim petition, specifically crediting the following: Claimant’s
testimony that Decedent was exposed to smoke (Finding of Fact No. 62); the IARC
monograph identifying which Group I carcinogens are components of smoke from
municipal fires and which carcinogens have been causally linked to gastric cancer
(Finding of Fact No. 64); and the testimony of Claimant’s medical expert, Jonathan
L. Gelfand, M.D., that Decedent suffered gastric cancer from exposure to smoke
while fighting fires (Finding of Fact No. 66).
The WCJ relied on this credited testimony and evidence to conclude
that Decedent “died from an occupational disease due to direct exposure to Group I
carcinogens while in the course and scope of his employment as an active
firefighter with . . . [Employer], for more than four years.” (Conclusion of Law
No. 13.) However, a review of Dr. Gelfand’s testimony reveals that his opinions
PAM - 3
were primarily based on Claimant’s exposure to asbestos while fighting fires,
which the IARC does identify as a Group I carcinogen. The WCJ recognizes as
much in his summary of Dr. Gelfand’s testimony. Yet, in his critical findings of
fact and conclusions of law, the WCJ merely references Claimant’s exposure to
smoke and the carcinogens contained therein, with no specific mention of asbestos,
as the cause of his gastric cancer.
The Majority reverses the decision of the Workers’ Compensation
Appeal Board (Board), which affirmed the WCJ’s decision, concluding that “the
record is devoid of competent evidence that Decedent had any direct exposure to a
known Group I carcinogen as required by Section 301(f) of the Act.” (Slip op. at
8.) The Majority emphasizes a lack of evidence in the record establishing
Decedent’s direct exposure to asbestos or any other specific Group I carcinogen.
However, in light of Dr. Gelfand’s testimony and the IARC’s recognition of
asbestos as a Group I carcinogen, I believe that additional findings are necessary to
clarify the precise nature of Decedent’s exposure and to determine whether
Claimant presented sufficient evidence establishing that Decedent suffered from an
occupational disease under section 108(r) of the Act and met her burden of proof
under section 301(f) of the Act.
For these reasons, I would vacate the Board’s order and remand the
matter to the Board, with specific instructions to remand to the WCJ, for further
findings as described above.
________________________________
PATRICIA A. McCULLOUGH, Judge
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