Volunteer Fire Companies of Lower Saucon v. D. Cawley (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Volunteer Fire Companies of :
Lower Saucon, :
Petitioner :
:
v. :
:
David Cawley (Workers’ :
Compensation Appeal Board), : No. 12 C.D. 2022
Respondent : Submitted: December 15, 2022
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: January 10, 2023
Volunteer Fire Companies of Lower Saucon (Employer) petitions this
Court for review of the Workers’ Compensation (WC) Appeal Board’s (Board)
December 7, 2021 order affirming the WC Judge’s (WCJ) decision that granted
David Cawley’s (Claimant) Claim Petition for WC benefits (Claim Petition).
Employer presents three issues for this Court’s review:1 (1) whether Claimant
provided timely notice pursuant to Section 311 of the WC Act (Act);2 (2) whether
Claimant was entitled to the presumption of causation afforded by Section 301(f) of
the Act;3 and (3) whether Claimant met his burden of proof under Section 108(n) of
the Act.4 After review, this Court affirms.
1
This Court reordered Employer’s issues for clarity of the discussion herein.
2
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 631.
3
Added by Section 2 of the Act of July 7, 2011, P.L. 251, 77 P.S. § 414(f).
4
Added by Section 1 of the Act of July 7, 2011, P.L. 251, 77 P.S. § 27.1(n).
Background
Claimant was employed as an active volunteer firefighter with
Employer since 1978. Claimant was also self-employed as a small-scale project
handyman since 1990. In 2015, Claimant was diagnosed with renal cell (kidney)
carcinoma and in 2016, he was diagnosed with colon/rectal carcinoma, for which he
has undergone several surgeries, as well as chemotherapy and radiation.5 Since his
diagnoses, his duties for Employer have been limited to exterior firefighting and
driving fire trucks.
On December 27, 2017, Claimant filed the Claim Petition alleging that
his two types of cancer are compensable based upon exposure to International
Agency for Research on Cancer (IARC) Group 1 carcinogens as a volunteer
firefighter under Section 108(r) of the Act.6 See Reproduced Record (R.R.) at 2a.
Claimant sought total disability benefits as of November 30, 2015, and payment of
his medical bills. Employer filed an Answer to the Claim Petition denying
Claimant’s allegations. See R.R. at 6a-8a.
The matter was assigned to a WCJ who conducted a hearing on
February 12, 2018. See R.R. at 9a-50a. When the hearing commenced, Claimant
amended the Claim Petition to include occupational injuries under Sections 108(n)
and 301(c)(1) of the Act, 77 P.S. § 411(1). Claimant testified at the February 12,
2018 hearing, and again by August 16, 2018 deposition. Claimant also presented
the December 26, 2017 report of internal medicine, pulmonary medicine and
occupational medicine specialist Tee L. Guidotti, M.D. (Dr. Guidotti) (see R.R. at
51a-65a); and the Pennsylvania Fire Information Reporting System (PennFIRS)
5
From 1978 to 2014, Claimant underwent approximately 15 mandatory physical
examinations, and was never diagnosed with cancer.
6
Added by Section 1 of the Act of July 7, 2011, P.L. 251, 77 P.S. § 27.1(r).
2
summary from 2013 to 2016.7 Employer offered the January 30, 2019 report of
occupational and environmental medicine specialist Howard Sandler, M.D. (Dr.
Sandler). See R.R. at 66a-90a. On June 28, 2019, the WCJ granted Claimant’s
Claim Petition, concluding that Claimant sustained his burden of proving his
entitlement to benefits pursuant to Sections 108(n), 108(r), 301(c)(2), and 301(f) of
the Act. Employer appealed to the Board.
On December 1, 2020, the Board affirmed the WCJ’s grant of the Claim
Petition, but remanded the case for evidence and findings regarding litigation costs
and disability dates. On May 7, 2021, the WCJ adopted his original findings of fact
and conclusions of law, made additional findings regarding Claimant’s litigation
costs, and stated that the parties agreed Claimant was disabled from November 23,
2015 through February 4, 2016 due to his kidney cancer, and from September 8,
2016 through October 3, 2016 due to his colon/rectal cancer. See Employer Br. App.
B (WCJ Remand Dec.) at 3-4 (R.R. at 195a-196a). Employer appealed to the Board,
which affirmed the WCJ’s Remand Decision on December 7, 2021. See Employer
Br. App. A (Board Remand Op.) (R.R. at 206a-215a). Employer appealed to this
Court.8
7
Employer has been reporting to the PennFIRS system since 2005. See R.R. at 41a.
Employer’s PennFIRS report summary reflects all of Employer’s fire calls. See R.R. at 97a-98a,
110a-111a, 147a-151a.
8
“[This Court’s] review determines whether there has been a violation of constitutional
rights, whether errors of law have been committed, whether board procedures were violated, or
whether necessary findings of fact are supported by substantial evidence.” Bryn Mawr
Landscaping Co. v. Workers’ Comp. Appeal Bd. (Cruz-Tenorio), 219 A.3d 1244, 1252 n.5 (Pa.
Cmwlth. 2019).
On June 28, 2022, this Court denied Employer’s supersedeas application.
3
Discussion
Initially,
[a]n 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) (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).
Section 108 of the Act defines the term “occupational disease” to
include, inter alia, “[c]ancer suffered by a firefighter[9] 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), and “[a]ll other diseases (1) to which [a] claimant is exposed by
reason of his employment, and (2) which are causally related to the industry or
occupation, and (3) the incidence of which is substantially greater in that industry or
occupation than in the general population.” 77 P.S. § 27.1(n).
Section 301(f) of the Act 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
9
“Section 301(f) [of the Act] . . . imposes the same general causation requirement on both
career and voluntary firefighters . . . .” Bristol Borough v. Workers’ Comp. Appeal Bd. (Burnett),
206 A.3d 585, 601 (Pa. Cmwlth. 2019) (en banc).
4
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 [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.
Ultimately,
[t]o provide compensation to injured workers, “a WCJ and
the Board are authorized by the Act to determine whether
or not an employee who alleges [the employee] was
injured during the course of [his] employment is entitled
to compensation.” Heath v. Workers’ Comp. Appeal Bd.
(Pa. Bd. of Prob. & Parole), . . . 860 A.2d 25, 30 ([Pa.]
2004). In doing so, 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 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).
Notice
Employer first argues that the Board erred by affirming the WCJ’s
conclusion that Claimant timely notified Employer of his work injury.
10
The purpose of “the PennFIRS reporting requirement in Section 301(f) [of the Act] is to
document a volunteer firefighter’s presence at a type of fire where firefighters are routinely
exposed to Group 1 carcinogens known to cause various types of cancers.” Burnett, 206 A.3d at
602.
5
Section 311 of the Act specifies:
Unless the employer shall have knowledge of the
occurrence of the injury, or unless the employe . . . shall
give notice thereof to the employer within [21] days after
the injury, no compensation shall be due until such notice
be given, and, unless such notice be given within [120]
days after the occurrence of the injury, no compensation
shall be allowed. However, in cases of injury . . . in which
. . . its relationship to the employment is not known to the
employe, the time for giving notice shall not begin to run
until the employe knows, or by the exercise of reasonable
diligence should know, of the existence of the injury and
its possible relationship to his employment. The term
“injury” in this section means, in cases of occupational
disease, disability resulting from occupational disease.
77 P.S. § 631. Thus, “[u]nder the Act, notice is a prerequisite for receiving [WC]
benefits” for an occupational injury, and this Court has held that “the claimant bears
the burden of demonstrating that proper notice was given.” City of Pittsburgh v.
Workers’ Comp. Appeal Bd. (Flaherty), 187 A.3d 1061, 1066 (Pa. Cmwlth. 2018).
Employer specifically contends that, with the exercise of reasonable
diligence, Claimant should have known about the potential causal connection
between his cancers and his work as a firefighter when he retained his attorney on
March 6, 2017, but he did not file the Claim Petition until December 27, 2017, and
there is no substantial competent evidence that Claimant provided notice to
Employer within 120 days of March 6, 2017.
In an occupational disease case, the notice period begins
to run against a claimant when []he has “(1) knowledge or
constructive knowledge (2) of a disability (3) which exists,
(4) which results from an occupational disease, and (5)
which has a possible relationship to h[is]
employment. . . .” Republic Steel Corp. v. Workmen’s
Comp[.] Appeal B[d.] (Wojtaszek), . . . 413 A.2d 768, 770
([Pa. Cmwlth.] 1980) (quoting Republic Steel Corp[.] v.
Workmen’s Comp[.] Appeal B[d.] (Zacek), . . . 407 A.2d
117, 118 ([Pa. Cmwlth.] 1979)) . . . .
6
Flaherty, 187 A.3d at 1067 (emphasis omitted). This Court has observed that the
General Assembly did not specify in Section 311 of the Act that a physician’s
confirmation shall trigger the notice period. See E. Hempfield Twp. v. Workers’
Comp. Appeal Bd. (Stahl), 189 A.3d 1114 (Pa. Cmwlth. 2018). Rather, “[t]he crux
of the issue relating to notice . . . is not when did [the c]laimant actually know of the
work-relatedness of his injury, but when [the c]laimant, through the exercise of
reasonable diligence, should have known the work-relatedness of his injury.” Id. at
1119-20 (emphasis in original). Importantly, the “discovery rule [in Section 311 of
the Act] requires more than an employee’s suspicion, intuition or belief.” The Bullen
Cos. v. Workers’ Comp. Appeal Bd. (Hausmann), 960 A.2d 488, 493 (Pa. Cmwlth.
2008). Accordingly, the WCJ “must [] determine[] whether [the c]laimant made a
reasonable effort to discover the cause of his injury under the facts and circumstances
present in the case.” Stahl, 189 A.3d at 1120.
Claimant represented in the Claim Petition that he “provided [] notice
[to Employer, on December 1, 2015,] that both cancers were potentially due to his
fire service within one week of being diagnosed. He [] filed this [Claim P]etition on
the same day that notice was provided that the cancers were due to his volunteer
service by a physician.” R.R. at 2a-3a. In its Answer, Employer denied knowledge
of Claimant’s notice. See R.R. at 6a.
Claimant testified at the February 12, 2018 WCJ hearing:
Q. [Claimant’s Counsel] . . . And after being diagnosed
with renal cell cancer did you contact [Employer]
regarding the relationship between that cancer and your
service?
A. [Claimant] Well, they actually contacted me, I mean.
Q. Who contacted you?
A. Our relief association president.
7
Q. Who was that?
A. Bill Chesler.
....
Q. And as a result of that did you notify [Employer] that
you believe the cancer was work-related?
A. Correct.
Q. And was that December of 2015?
A. Correct.
Q. Now, for the rectal cancer do you recall if you contacted
anybody from the volunteer fire company or township
about that?
A. I don’t really remember. I’m not sure. There was a lot
going on. I’m not sure.
Q. When you notified [Employer] or when [Employer]
notified you about the relationship between the cancer, the
renal cell cancer, and your fire service[, a]t that point had
any doctor told you or given you a note expressing that the
cancer was due to your fire service?
A. No.
Q. Even as we sit here today for both renal cell and the
rectal cancer is the only report that you’ve ever seen
relating the two cancers from a Dr. Guidotti . . . ?
A. Yes, that was the only guy.
R.R. at 37a-38a; see also R.R. at 124a-125a. Claimant denied any knowledge of the
IARC or its chemical carcinogenicity list prior to reviewing Dr. Guidotti’s report.
See R.R. at 39a. Employer did not offer any contradictory evidence.
As “the exclusive arbiter of credibility and evidentiary weight[,]”
Faison, 266 A.3d at 730 (quoting Thompson, 781 A.2d at 1150), “the WCJ may
reject or accept the testimony of any witness.” Faison, 266 A.3d at 736. Here, the
WCJ found: “[Claimant] notified [Employer] that he thought the renal cell cancer
8
was work related in December of 2015. He is not sure about the rectal cancer. The
only communication he has seen from any doctor relating his cancer to his work as
a volunteer fireman is the report of Dr. Guidotti.” WCJ Dec. at 4 (R.R. at 155a).
The WCJ also found: “The testimony of the Claimant is uncontradicted and credible
in its entirety.” WCJ Dec. at 7 (R.R. at 158a). Accordingly, the WCJ concluded:
Claimant has provided timely notice of his claims pursuant
to Section 311 of the Act. He advised [Employer] of the
potential relationship as soon as he was diagnosed. . . .
[H]e never received medical notice of the relationship
between fire service and cancers until receiving Dr.
Guidotti’s December 26, 2017 report.
WCJ Dec. at 8 (R.R. at 159a).
On appeal, neither the Board nor this Court may reweigh the evidence
or the WCJ’s credibility determinations,11 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. Worker’s 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.
11
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.9
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.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, because substantial evidence clearly supported the WCJ’s
conclusion that Claimant timely notified Employer in accordance with Section 311
of the Act, the Board properly affirmed the WCJ’s decision.
10
Presumption
Employer also asserts that the Board erred by affirming the WCJ’s
conclusion that Claimant was entitled to the presumption of causation afforded by
Section 301(f) of the Act. Specifically, Employer claims that the WCJ erroneously
granted the Claim Petition based on Employer’s purported failure to offer expert
medical evidence to rebut the presumption of causation under Section 301(f) of the
Act when Employer produced an expert’s opinion disputing general causation, so
the burden of proof should have returned to Claimant to prove causation by a
preponderance of the evidence. Employer further interprets that the burden-shifting
framework does not require its medical opinion to first be found credible to rebut the
presumption of causation.
[T]o 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
firefighting duties (and the examination failed to
reveal any evidence of cancer).
77 P.S. § 414. Finally, if 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) (footnote omitted).
11
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.”12 77 P.S. § 414; see also R.R. at 16a-17a. Their
disagreement is over whether Claimant “establish[ed] direct exposure to a
carcinogen referred to in [S]ection 108(r) [of the Act] relating to cancer by a
firefighter[.]” Id.
The express language of Section 108(r) [of the Act],
namely that the claimant has a “cancer . . . which is caused
by exposure to a known (Group 1) carcinogen” clearly
imposes an initial burden of causation on the claimant.
Importantly, however, the provision only requires the
claimant to establish a general causative link between
the claimant’s type of cancer and a Group 1
carcinogen. In other words, the claimant must produce
evidence that it is possible that the carcinogen in question
caused the type of cancer with which the claimant is
afflicted. It does not require the claimant to prove that the
identified Group 1 carcinogen actually caused claimant’s
cancer. Section 108(r) [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. The burden imposed
by Section 108(r) [of the Act] is not a heavy burden.
Sladek, 195 A.3d at 208 (bold and italic emphasis added; footnote omitted).
Notably, Section 301(f) [of the Act] does not require []
firefighters to identify and document the carcinogens
encountered at every incident. Rather, a [] firefighter
may establish direct exposure to a Group 1 carcinogen
12
Claimant’s last firefighter physical before his cancer diagnoses occurred on December
30, 2014. See R.R. at 96a, 139a-146a.
12
by evidence of his occupational exposure to fire smoke,
soot, diesel exhaust, and other hazardous substances
such as asbestos, and expert medical/scientific evidence
identifying the Group 1 carcinogens present in those
substances. See, e.g., Caffey v. Workers’ Comp. Appeal
Bd. (City of Phila[.]), 185 A.3d 437 (Pa. Cmwlth. 2018)
(career firefighter’s testimony of occupational exposure to
fire smoke, soot and diesel exhaust, combined with expert
medical testimony as to causal relationship between
bladder 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) (en banc) (emphasis added).
Here, Claimant testified that he has always worked at the same
firehouse, which operates three diesel-powered vehicles, and it does not have a diesel
fuel emissions capture system. See R.R. at 17a-18a. He could see and smell diesel
fuel emissions on every fire call for approximately five to eight minutes before the
trucks pulled out of the firehouse, during which time he was not wearing breathing
protection. See id. He was also exposed while the trucks are running at every fire
scene. See R.R. at 26a. Claimant recalled that the firehouse apparatus door, walls,
and ceiling were covered in diesel fuel soot, which he periodically participated in
cleaning without being given personal protective equipment. See R.R. at 19a.
Claimant described that he fought at least 1,000 interior and exterior
fires over the years, including house, car, trash, brush, and warehouse fires.13 See
R.R. at 19a-22a. Claimant presented Employer’s pre-PennFIRS and PennFIRS
reports reflecting his firefighting since 1979. He stated that he participated in all
firefighting stages, including: the attack phase (entry, search, rescue, ventilation and
13
Claimant estimated the number of his fire calls by reviewing Employer’s fire reports
since 1979. See R.R. at 41a, 96a-97a.
13
suppression), the overhaul phase,14 the salvage phase, and the fire investigation
phase, all of which exposed him to soot and smoke. See R.R. at 21a-22a. Claimant
explained that, although firefighters now use self-contained breathing apparatuses
(SCBAs)15 for all types of fires and phases, for the first 20 years or so of his service,
SCBAs were not used for exterior fires, car fires, overhaul, or salvage. See R.R. at
23a-24a.
Claimant stated that, although he wore bunker gear (pants, boots, coat,
Nomex hood, helmet, and gloves) during the active phases of fighting fires, the gear
was not 100% sealed, so he was exposed to soot and smoke even with it on, and also
when he removed the equipment for overhaul and salvation, which further exposed
him to ash and building material debris. See R.R. at 24a-27a. He was also exposed
to all of those materials when he cleaned his bunker gear and the firefighting
equipment after each fire. See R.R. at 25a. Claimant stated that, as a handyman, he
was not exposed to the types of hazardous materials he encountered when
firefighting. See R.R. at 27a-28a.
Claimant recalled that for the five years before starting his handyman
business, he was employed as a laborer at American Olean Tile, which manufactured
clay quarry tile. See R.R. at 28a-29a. He declared that he was not exposed to clay
dust in that job. See R.R. at 29a. Claimant recollected that he worked as an auto
mechanic at TD Automotive for approximately one and one-half years before going
to work for American Olean Tile, but he did not perform diesel mechanic work in
that job. See id.14
Claimant described: “Overhaul is when you’re going in and pulling down the walls
looking for hot spots, mopping up, . . . tearing ceiling[s] down, moving stuff, cleaning up.” R.R.
at 23a.
15
SCBAs provide firefighters with fresh, clean air for approximately 30-45 minutes. See
R.R. at 22a.
14
Claimant asserted that he has no family history of renal or rectal cancer,
although his father had esophageal cancer. See R.R. at 35a. He testified that he did
not live in a house with smokers, and his wife does not smoke. See R.R. at 36a.
Although he is not a smoker, he admitted to smoking a cigar on rare occasions. See
R.R. at 35a. He recalled that firefighters were permitted to smoke in the firehouse.
See R.R. at 36a. Claimant reported that he is currently doing well, and undergoes
regular cancer checks and scans. The WCJ found Claimant’s testimony
“uncontradicted and credible in its entirety.” WCJ Dec. at 7 (R.R. at 158a).
The WCJ made the following findings which are based on statements
contained in Dr. Guidotti’s report:
[3.]f. Dr. Guidotti reported that firefighters are exposed to
chemical hazards with known and suspected carcinogens.
Skin absorption can be significant for chemical hazards.
Most toxic chemical exposures in fire[]fighting come
through general combustion involving not just wood and
paper but synthetic materials producing other toxic
chemical products. These include polycyclic aromatic
hydrocarbons, some of which are known carcinogens,
volatile organic compounds, including benzyne
carcinogen and nitroarenes. Fine particulate matter is
produced by fire and diesel exhaust. Other hazardous
materials, such as asbestos and polychlorinated biphenyl
compounds may be encountered. Halogenated flame
retardants are a new class of chemical hazard.
g. Dr. Guidotti opined that both colon and rectal cancers
are more common among firefighters. He opined that
multiple studies established that kidney cancer is
associated with firefighting. Similarly, multiple studies
relate colon and rectal cancer to be elevated among
firefighters with a consistent association to firefighting.
h. [Dr. Guidotti] opined that firefighters are exposed to
several IARC Group [1] carcinogens that cause kidney,
colon[,] and rectal cancers including chlorinated
hydrocarbons, tetrachloroethylene [(IARC Group 1),] and
trichloroethylene.
15
i. [Dr. Guidotti] opined that [] Claimant did not have the
other risk factors of obesity, smoking[,] and diabetes. He
did not abuse alcohol, did not have inflammatory bowel
disease and did not have an extreme diet.
j. Consequently, [Dr. Guidotti] opined that [] Claimant
developed his cancers as a consequence of exposure to
IARC [Group 1] chemical carcinogens encountered in the
course of his work as a firefighter.
WCJ Dec. at 6-7 (R.R. at 157a-158a).
The WCJ made the following findings based on statements included in
Dr. Sandler’s report:
[4.]b. Basing his opinion on the PennFIRS reports [Dr.
Sandler] reported that there was no specific carcinogen
exposure.
c. [Dr. Sandler] opined that the epidemiological evidence
does not support a causal association between
fire[]fighting and kidney cancer.
d. [Dr. Sandler] disputed studies and data that establish an
increase in colon and rectal cancer within the fire service.
He pointed to data which in his opinion demonstrated no
relationship.
e. [Dr. Sandler] admitted that firefighters may be exposed
to IARC Group [1] carcinogens and recognized that
firefighters are exposed to benzene, butadiene, and
halogenated hydrocarbons.
f. Although [Dr. Sandler] does not directly challenge the
opinion that kidney cancer and colon/rectal cancer can be
caused by exposure to IARC Group [1] carcinogens, he
opines there is not sufficient evidence of dose and
exposure. He drew no conclusion from [] Claimant’s long
period of fire service from 1978 to 2012.
g. [Dr. Sandler] opined that Claimant’s cancers were not
the result of occupational exposure, but he did not attempt
to explain the cause of [] Claimant’s cancer[s].
WCJ Dec. at 7 (R.R. at 158a).
16
The WCJ found:
The opinions of Dr. Guidotti are persuasive and more
credible than Dr. Sandler’s opinions to the contrary. [This
WCJ] note[s] Dr. Guidotti’s broad experience in the field
and his recognition of [] Claimant’s various potential risk
factors beyond firefighting. Moreover, he noted the length
of [] Claimant’s career in considering exposures. Dr.
Sandler’s less persuasive opinions are hindered by his
failure to appropriately consider [] Claimant’s 39 years of
firefighting.
WCJ Dec. at 8 (R.R. at 159a). Accordingly, the WCJ found that “Claimant’s renal
cell and rectal cancer are the types of cancer possibly caused by IARC Group 1
carcinogens[,]” and that “Claimant has established entitlement to the rebuttable
presumption of Section 301(f) of the Act.” Id. The WCJ concluded that “Claimant
has proven through substantial, competent[,] and expert evidence herein found
credible, his entitlement to compensation for renal cell and colon/rectal cancer[,]”
and Employer “has failed to offer expert medical evidence, herein found credible, to
rebut the presumption.” Id.Notably, Dr. Sandler did not contest Dr. Guidotti’s opinions, based on
the totality of research data that IARC Group 1 carcinogens may cause renal and
rectal cancers in firefighters due to their work environment. Dr. Guidotti reviewed
numerous studies that have demonstrated a link between firefighting and elevated
risks of kidney cancer. In one study, which Dr. Guidotti described as “the largest
and best-conducted study to date,” R.R. at 57a, reflected a strong association
between firefighting and kidney cancer that “was statistically significantly elevated
for firefighters with at least 20 years [of] service[.]” R.R. at 56a.
Dr. Guidotti acknowledged that, although a person’s lifestyle (i.e., diet,
activity, obesity, etc.) is a risk factor for colon/rectal cancer, “[o]verall, the weight
of evidence suggests that colon and rectal cancer incidence are elevated among
17
firefighters and that there is a consistent association with occupation as a firefighter.”
R.R. at 59a. He described:
[T]here are three well-known and proven mechanism[s]
for carcinogens in fire smoke to reach the colon and rectal
to cause cancer: 1) deposition in the lung or deposition on
skin (involving smaller amounts) followed by entry into
the circulation and exposure of tissue to the carcinogens in
blood[;] 2) oral ingestion which occurs when, for example,
a firefighter licks his lips in the heat[;] and 3) deposition
in the lung followed by ingestion of particles brought back
up to the mouth and swallowed. There is not sufficient
scientific evidence to know which is most important but[,]
in my opinion[,] the mucociliary escalator is probably the
major mechanism for colon and rectal cancer risk.
R.R. at 60a. Based on the foregoing, we agree with the WCJ that Claimant was
entitled to the presumption under Section 301(f) of the Act because he “produce[d]
evidence that it is possible that [an IARC Group 1 carcinogen] caused the type of
cancer[s] with which [he was] afflicted.” Sladek, 195 A.3d at 208 (emphasis in
original).
The Pennsylvania Supreme Court has explained:
To reach the stage of the proceedings at which the
employer attempts to rebut the presumption of
employment-related causation, the claimant has already
carried his or her Section 108(r) [of the Act] burden of
proof that his or her cancer is of a type that may be caused
by a Group 1 carcinogen. The employer may not rebut the
evidentiary presumption merely by revisiting this
determination and challenging its accuracy. At the
rebuttal stage, the issue relates not to “types of cancer”
relative to potential carcinogens, but rather requires proof
[] that the cancer from which the claimant suffers was
not caused by his occupation as a firefighter.[16]
Sladek, 195 A.3d at 210 (emphasis added).
16
Employer argues that the WCJ erroneously “placed the burden on Employer to prove a
negative, i.e.[,] that Claimant’s cancer[s] [were] not caused by his firefighting activities . . . .”
Employer Br. at 27. However, that is precisely what the law requires. See Sladek.
18
[T]he language of Section 301(f) [of the Act] plainly . . .
requires the employer to sustain its burden of proof by
demonstrating (1) the specific causative agent of [the]
claimant’s cancer, and (2) exposure to that causative
agent did not occur as a result of his or her employment
as a firefighter.
Id. at 209 (emphasis added). “When evidence is introduced that rebuts the
presumption, [the presumption] disappears.” Burnett, 206 A.3d at 607. However,
an employer’s expert evidence that is not found credible or persuasive cannot rebut
the presumption. See id.; see also City of Phila. v. Est. of Burke (Workers’ Comp.
Appeal Bd.) (Pa. Cmwlth. No. 1215 C.D. 2020, filed July 30, 2021).17
Employer presented Dr. Sandler’s report to rebut the presumption in
Claimant’s favor. Based upon the PennFIRS summary, Dr. Sandler estimated that
Claimant would only have reported to approximately 50 structure fires during the
span of his employment. See R.R. at 69a-70a. Dr. Sandler reviewed studies and
determined that “the alleged volunteer structural/building firefighting as performed
by [Claimant] over a limited time frame and frequency of response does not meet
either the general causation or individual causation criteria required for establishing
a causal nexus for his renal cell carcinoma and colorectal carcinoma.” R.R. at 77a.
Dr. Sandler declared:
There is no evidence to support a conclusion that exposure
to arsenic, asbestos, benzene, benzo[a]pyrene, diesel
exhaust, formaldehyde, trichloroethylene and
tetrachloroethylene and soot as a firefighter were
substantial causal or contributing factors in the
development of [Claimant’s] renal cell carcinoma and
colorectal carcinoma. . . . [I]t is not scientifically
17
On August 30, 2021, the City of Philadelphia filed a Petition for Allowance of Appeal,
which the Pennsylvania Supreme Court denied on February 8, 2022.
This Court’s unreported memorandum opinions may be cited “for [their] persuasive value,
but not as a binding precedent.” Section 414(a) of the Commonwealth Court’s Internal Operating
Procedures, 210 Pa. Code § 69.414(a). Estate of Burke is cited for its persuasive value.
19
demonstrated using appropriate causal determination
methodology that any of the above potential exposures as
a firefighter leads to the development of renal cell
carcinoma and rectal carcinoma much less to the
extremely limited exposure documented in this matter.
R.R. at 78a.
Dr. Sandler offered that Claimant’s cancers “[were] most likely caused
by his underlying personal risk factors . . . including genetic propensity, essential
hypertension and other potential personal etiologic risk factors such as analgesic
medication.” R.R. at 78a. He noted Claimant’s father’s cancer history and “a family
mesothelioma [] reported in the medical reports.” R.R. at 69a. Dr. Sandler further
stated:
One of the strongest risk factors for the development of
kidney cancer is the presence of hypertension . . . .
[Claimant] has suffered from hypertension for many years
prior to the clinical development of his bilateral kidney
cancer. Analgesia use has also been identified as a kidney
cancer risk factor including a recent meta-analysis of the
epidemiological evidence . . . . It is not known at present
what[,] and if so the degree of[,] analgesic medication
[Claimant] may have used for his various painful
comorbidities . . . .
Id. Employer claims that Dr. Sandler “provided a specific, non-firefighting related
cause of Claimant’s cancer[s that] was sufficient as a matter of law under Sladek to
rebut the statutory presumption.” Employer Br. at 27. However, the WCJ disagreed.
Dr. Guidotti observed regarding Claimant’s genetic history:
It is well known that people who have had one cancer are
at higher risk for a second cancer at another site.
Synchronous or metachronous cancers (where two or more
occur at about the same time) are uncommon and usually
occur by a different mechanism, either because the person
has a defect in the ability to stop cancer once it is initiated
or because the person has been exposed to chemicals that
cause cancer in two different organs.
20
The presence of two (or more) cancers in one individual
sometimes indicates a genetic association of the cancer
(most commonly Lynch syndrome, which [Claimant] does
not have - it was ruled out by the DNA test). This
association, however, is almost always a genetic defect in
the repair of DNA following damage. Gene repair defects
therefore are conditions in which the person is more
susceptible to chemical causes of cancer, a situation
variously described as a “thin skull” or “eggshell”
condition. Thus, the presence of a known or suspected
gene-repair defect does not rule out an occupational cause
for cancer in a firefighter. It strongly suggests that the
cancer is more likely to be work-related, not less likely.
But for the exposure, the cancers would be unlikely to
initiate in the first place and but for the gene-defect the
cancer would be unlikely to progress to a clinical cancer.
R.R. at 61a.
Dr. Guidotti further declared:
[A] genetic predisposition to cancer in this context almost
always means that the person inherited a condition in
which the body lacks the ability to stop a cancer - it does
not necessarily mean that the genetic condition caused the
cancer. A genetic defect in stopping cancer makes it much
more likely that a person exposed to carcinogenic
chemicals, such as a firefighter, will develop cancer after
exposure. It does not mean that the genetic defect caused
the cancer in the first place.
R.R. at 54a.
Dr. Guidotti also acknowledged that Claimant had “a history of
essential hypertension prior to his kidney cancer[,]” but explained that the
“association between hypertension and risk of kidney cancer appears to be related to
obesity, which was not a factor in [Claimant’s] case[,]” “the risk conferred by
hypertension . . . is . . . less than the risk associated with firefighting, which can range
much higher[,]” and “[h]ypertension is not associated with rectal cancer.” R.R. at
61a. The WCJ clearly considered and rejected Dr. Sandler’s testimony that
conflicted with Dr. Guidotti’s, which the WCJ was authorized to do.
21
Because the WCJ’s credibility determinations were not made arbitrarily
and capriciously and his findings were supported by substantial evidence, this Court
may not disturb them on appeal. See Sell; see also Rogele, Inc. Based on the expert
evidence the WCJ found credible, Employer failed to rebut the presumption by
“pro[ving] [] that the cancer[s] from which [] [C]laimant suffer[ed] was not caused
by his occupation as a firefighter.” Sladek, 195 A.3d at 210. Accordingly, the Board
properly affirmed the WCJ’s conclusion that Claimant was entitled to the
presumption of causation afforded by Section 301(f) of the Act.
Section 108(n) of the Act
Lastly, Employer asserts that the Board erred by affirming the WCJ’s
conclusion that Claimant met his burden of proof under Section 108(n) of the Act.
In particular, Employer contends that, despite the statutory requirement, the WCJ
rendered no findings and Claimant offered no evidence showing there is a greater
incidence of kidney or rectal cancers within the firefighting occupation than in the
general population.
To prove his entitlement to WC benefits under the catch-all provision
in Section 108(n) of the Act, Claimant had to show that his cancers resulted from his
exposure by reason of his firefighting, that the cancers were causally related to his
firefighting, and that the incidence of such cancers “is substantially greater in that
industry or occupation than in the general population.” 77 P.S. § 27.1(n).
The WCJ specified in Finding of Fact 3.g., which was supported by
substantial record evidence that the WCJ deemed credible: “Dr. Guidotti opined that
both colon and rectal cancers are more common among firefighters. He opined that
multiple studies established that kidney cancer is associated with firefighting.
Similarly, multiple studies relate colon and rectal cancer to be elevated among
firefighters with a consistent association to firefighting.” WCJ Dec. at 6 (R.R. at
22
157a). Because the WCJ made a finding of fact based on substantial evidence that
he found credible, the Board properly affirmed the WCJ’s conclusion that Claimant
met his burden of proof under Section 108(n) of the Act.
Conclusion
After a careful review of the record in this matter, th[is]
Court concludes that the WCJ’s findings of fact are
supported by substantial evidence of record, including[,]
inter alia[,] the credited testimony from Claimant and his
medical witness, Dr. [Guidotti], which establishes the
causal connection between Claimant’s disease and his
employment. Moreover, th[is] Court determines that
Claimant satisfied statutory notice requirements and that
the evidence, when viewed in a light most favorable to the
prevailing party, supports the conclusion that Claimant
met his burden to prove that he suffered a compensable
occupational [] disease caused by his . . . employment with
Employer.
The Bullen Cos., 960 A.2d at 494. Accordingly, the Board’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
23
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Volunteer Fire Companies of :
Lower Saucon, :
Petitioner :
:
v. :
:
David Cawley (Workers’ :
Compensation Appeal Board), : No. 12 C.D. 2022
Respondent :
ORDER
AND NOW, this 10th day of January, 2023, the Workers’
Compensation Appeal Board’s December 7, 2021 order is affirmed.
_________________________________
ANNE E. COVEY, Judge