City of Chester v. J. Gresch and Nether Providence Twp. (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Chester, :
Petitioner :
:
v. : No. 1040 C.D. 2021
: Submitted: January 27, 2023
John Gresch and Nether Providence :
Township (Workers’ Compensation :
Appeal Board), :
Respondents :
BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE DUMAS FILED: July 6, 2023
The City of Chester (City) has petitioned this Court to review an
adjudication of the Workers’ Compensation Appeal Board (Board), affirming the
decision of the Workers’ Compensation Judge (WCJ), which granted a claim petition
filed by John Gresch (Claimant) under the Workers’ Compensation Act (Act)1 and
denied the City’s joinder petition. On appeal, the City contends that the Board erred
in its application of the “liable employer” doctrine.2 Upon review, we affirm.
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
2
As discussed hereinafter, where a claimant suffers from an occupational disease as a result
of exposure to the hazards of that disease while employed by multiple employers, the doctrine
assigns liability to a single employer. See Avalotis Painting v. Workmen’s Comp. Appeal Bd.
(Markulin), 621 A.2d 1167 (Pa. Cmwlth. 1993); Section 301(c)(2) of the Act, 77 P.S. § 411(2).
I. BACKGROUND3
Claimant worked for the City as a firefighter for approximately 37
years, from May 28, 1977, to April 1, 2014, eventually achieving the rank of
“battalion chief.” Following his retirement, Claimant began to work as a fire marshal
for Nether Providence Township (Township) and has worked for the Township since
September 10, 2015. In November 2017, Claimant was diagnosed with kidney
cancer. He was treated for the cancer, had part of his kidney surgically removed,
and missed approximately six months of work with the Township.
On February 22, 2019, Claimant filed a claim petition against the City,
alleging that he had developed kidney cancer after exposure to carcinogens while
working as a firefighter for the City. Claimant sought total compensation benefits
from January 3, 2018, through May 1, 2018. The City denied liability and filed a
petition for joinder against the Township. In turn, the Township denied all the
allegations in the joinder petition.
A hearing was held before the WCJ on September 9, 2019. By
deposition, Claimant testified that he was exposed routinely to smoke, soot, and
diesel emissions during his career with the City. He also quantified those exposures,
testifying that he responded to 12 structure fires per month.4 Claimant’s current
duties as a fire marshal differ considerably. In that role, Claimant performs fire
inspections, conducts fire investigations, and hosts fire safety programs with
children. Claimant is not an active firefighter but has been on the grounds of fire
scenes approximately six or seven times during his service with the Township.
3
Unless stated otherwise, we adopt the factual background for this case from the decision
of the WCJ, which is supported by substantial evidence of record. See WCJ’s Decision, 2/26/2020,
at 1-11. We note that the parties do not dispute the facts.
4
As battalion chief, Claimant would respond to as many as two dozen fires per month. See
WCJ’s Decision at 6.
2
Claimant also introduced the medical report of Tee L. Guidotti, M.D.,
who is board certified in internal medicine and occupational medicine and has
studied cancer in the fire service for decades. Dr. Guidotti opined that Claimant was
exposed to group 1 carcinogens5 tetrachloroethylene and trichloroethylene as a
firefighter by way of smoke produced from burning synthetic materials. According
to Dr. Guidotti, this exposure caused Claimant’s development of kidney cancer.6
Neither the City nor the Township offered medical evidence to contest Dr. Guidotti’s
report.
Based upon this evidence, the WCJ granted Claimant’s petition,
awarding him indemnity benefits, medical benefits, and litigation costs. The WCJ
also denied the City’s petition to join the Township, concluding that the Township
was not liable for Claimant’s cancer.7
The City appealed to the Board, which affirmed. The City now appeals
to this Court.8
5
The International Agency for Research on Cancer (“IARC”) is a specialized research
group within the World Health Organization that attempts to identify the causes of human cancers.
The agency evaluates various agents, mixtures, and exposures, and classifies them into one of five
groups. Group 1 substances are considered “carcinogenic to humans.” See IARC Monographs on
the Evaluation of Carcinogenic Risks to Humans, WORLD HEALTH ORGANIZATION,
https://monographs.iarc.who.int/agents-classified-by-the-iarc (last visited July 5, 2023).
6
In 2014, prior to his retirement from the City, Claimant was diagnosed with leukemia.
Dr. Guidotti opined that Claimant’s type of leukemia was unrelated to Claimant’s fire service.
7
The WCJ determined that Claimant established an occupational disease per Section 108(r)
(occupational diseases) as well as Section 108(n) (catch-all provision) of the Act. See 77 P.S.
§27.1(r); 77 P.S. §27.1(n), added by the Act of October 17, 1972, P.L. 930. In addition, the WCJ
determined that Claimant was entitled to the benefits of the firefighter presumption. See Section
301(f) of the Act, 77 P.S. § 414 (cancer suffered by a firefighter), added by the Act of July 7, 2011,
P.L. 251. These conclusions are not at issue in this appeal.
8
Our review is limited to determining “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
3
II. ISSUE
On appeal, the City contends that the Township is liable for Claimant’s
cancer because the Township was the more recent employer to expose Claimant to
a group 1 carcinogen. Pet’r’s Br. 9-14. In response, Claimant argues that the
Board’s decision is supported by evidence of record and all pertinent authority.
Resp’t’s Br. at 12-13.9, 10
III. ANALYSIS
The City asserts that the Board erred in determining that the City is the
liable employer because Claimant was last exposed to the hazard while employed
for the Township. Pet’r’s Br. at 10. According to the City, Section 301(c)(2) of the
Act, 77 P.S. §411(2), states that where a claimant works for more than one employer
for a period of more than one year, the liable employer is the employer which last
Landscaping Co. v. Workers’ Comp. Appeal Bd. (Cruz-Tenorio), 219 A.3d 1244, 1252 n.5 (Pa.
Cmwlth. 2019) (internal citation omitted).
9
The Township filed a brief in response to the City’s petition for review, arguing the
following: the Township is not the liable employer under Section 301(c)(2) because there was no
evidence that Claimant was exposed to hazards while employed for the Township and that the
Township is not liable for Claimant’s cancer under Section 108(r) because Claimant was a fire
marshal and not a firefighter; thus, Section 108(r) does not apply. Twp.’s Br. at 22-26. In light of
the issue presented by the City, and our disposition of this appeal, we need not address the
Township’s arguments.
10
In its brief, the City also argues that the WCJ erred in determining that the City was liable
under Section 108(n) because it did not employ Claimant on the last date of exposure. Pet’r’s Br.
at 14-16. This Court reviews decisions of the Board, not the WCJ. Thus, the target of the City’s
criticism is misplaced. See Dowhower v. Workers’ Comp. Appeal Bd. (Capco Contracting), 934
A.2d 774, 778-79 (Pa. Cmwlth. 2007) (holding that issues determined by the WCJ but not
addressed by the Board were not ripe for appellate review). Further, the Board determined liability
under Section 108(r), and we discern no error therein. See Board Op. and Order, 8/26/21, at 7-8.
This Court has consistently applied Section 108(n) as a “catch all” provision for those claimants
unable to establish an entitlement to benefits under a more specific provision such as Section
108(r). See, e.g., Capaldi v. Workers' Comp. Appeal Bd. (City of Philadelphia), 152 A.3d 1107,
1115 n.12 (Pa. Cmwlth. 2017) (“[W]here a claimant fails to make a case under Section 108(r) of
the Act, he may show that it was an occupational disease under the catch all provision in Section
108(n) of the Act.”). For these reasons, we decline to address the City’s argument in further detail.
4
exposed a claimant to the occupational hazard. Pet’r’s Br. at 10. Because Claimant
was diagnosed with kidney cancer two years into his employment with the
Township, during which he was exposed to the same carcinogens linked to kidney
cancer, the City maintains that the Township is the liable employer. Pet’r’s Br. at
10-13. This is so, according to the City, even though Claimant did not work as a
firefighter for the Township. Id. at 12-13. Therefore, the City concludes, the
Board’s decision not to assess liability against the Township is legally erroneous.
Id. at 13-14. In support of these arguments, the City principally relies on Young v.
Workers’ Compensation Appeal Board (Zinc Corp. of America), 897 A.2d 530 (Pa.
Cmwlth. 2006), affirmed as modified, 922 A.2d 891 (Pa. 2007).11
Section 301(c)(2) of the Act limits employer liability to occupational
disease that manifests within 300 weeks of a claimant’s workplace exposure to the
hazards of that disease. See 77 P.S. § 411(2). If a claimant’s exposure occurred
while employed by multiple employers, however, only one employer will be liable.
See id. Further, if the actual exposure to the hazards of an occupational disease, at
these multiple employers, is less than one year, then the liable employer will be the
employer that exposed the claimant to those hazards for the longest period. See id.
In Avalotis Painting v. Workmen’s Compensation Appeal Board
(Markulin), 621 A.2d 1167 (Pa. Cmwlth. 1993) (Avalotis), this Court formulated
what is commonly known as the “liable employer doctrine.” In that case, the
claimant worked for at least two employers during the 300-week limitations period
11
The City also suggests that the WCJ erred in determining that the Township was not the
liable employer because Claimant’s leukemia diagnosis pre-dated his employment with the
Township. See Pet’r’s Br. at 13. As previously noted, the City did not challenge the WCJ’s
findings, including his credit of Dr. Guidotti’s opinion that Claimant’s leukemia was unrelated to
his fire service. Because the City failed to raise this issue before the Board, this argument is
waived. See Trigon Holdings, Inc. v. Workers’ Comp. Appeal Bd. (Griffith), 74 A.3d 359, 365 (Pa.
Cmwlth. 2013) (an employer’s failure to raise a challenge before the Board results in its waiver).
5
prior to contracting silicosis. Avalotis, 621 A.2d at 1170. While the claimant had
worked for one of those employers for more than a year, the record established that
the claimant’s employment with another employer, though shorter in duration, had
caused actual exposure to silica for a longer period. See id. The Board assigned
liability accordingly, and this Court affirmed, reasoning that it is not the length of
employment, but rather the length of actual exposure to an occupational hazard that
is the determinative factor. 621 A.2d at 1169; see also Cable v. Workmen’s Comp.
Appeal Bd. (Gulf Oil/Chevron USA, Inc.), 664 A.2d 1349, 1351 (Pa. 1995)
(plurality) (reiterating that “relevant employment is employment in which a worker
is exposed to the hazard of occupational disease” and describing our reasoning in
Avalotis as “impeccable”).12
Here, Claimant was employed by the City and the Township during the
300 weeks prior to his diagnosis of kidney cancer. While Claimant sought to
quantify his actual exposure to group 1 carcinogens, it remains unclear on this record
whether either employer was responsible for Claimant’s actual exposure to group 1
carcinogens for a period of more than a year. Although Claimant worked for the
12
There are several permutations of the liable employer doctrine, each rooted in a
claimant’s actual exposure to the hazards of an occupational disease. As the Avalotis Court stated:
[T]he word “exposure” in [S]ection 301(c)(2) means that, in cases in which
a claimant has worked for an employer who is responsible for an actual
period of exposure of one year or more, that employer is liable. If there is
more than one such employer who is responsible for a period of actual
exposure of one year or more, the employer who last thus employed the
claimant is liable. Of course, . . . if no employer is responsible for a period
of actual exposure of one year or more, the employer responsible for the
longest period of actual exposure is the employer who is liable for
compensation payments. Thus, period of exposure, not the total period of
employment, is the governing factor throughout [S]ection 301(c)(2).
621 A.2d at 1169.
6
Township more recently, for two years immediately preceding his diagnosis,
Claimant credibly testified that he responded to six or seven fires in total while
employed by the Township. In contrast, Claimant responded to 12 fires per month
while employed by the City. It is therefore obvious that Claimant’s actual exposure
to the relevant group 1 carcinogens was far greater while employed by the City than
the Township. Thus, the City is liable for the payment of Claimant’s workers’
compensation benefits. See 77 P.S. § 411(2); Avalotis; Cable.13
In our view, the City’s reliance on Young is misplaced. In Young, the
claimant was diagnosed with cancer after being exposed to asbestos by five different
employers over his forty-five-year career. 897 A.2d at 531. This Court held the
most recent employer liable because it was the only employer that exposed the
claimant to asbestos during the 300-week limitations period. Id. at 533-34. Unlike
the Young claimant, Claimant worked for both the City and the Township during the
limitations period. Therefore, Young is inapposite to our current analysis.
Accordingly, we affirm the Board’s order.
LORI A. DUMAS, Judge
13
In describing the liable employer doctrine, the Board stated that, “[i]f the employment
was with two employers for more than one year each, then the employer for the last longest
employment period is liable.” Bd. Op. & Order at 3 (emphasis added). The Board erred in
suggesting that length of employment is determinative. Nevertheless, because its adjudication was
correct, this Court may affirm the Board regardless of the reasons given. See Country Club of
Scranton & Amerihealth Cas. Servs. v. Workers’ Comp. Appeal Bd. (Davidson), (Pa. Cmwlth., No
1247 C.D. 2009, filed Feb. 17, 2010) 2010 WL 9512522 (citing Wolf v. Workers’ Comp. Appeal
Bd. (Cnty. of Berks/Off. of Aging), 705 A.2d 483, 483 n.1 (Pa. Cmwlth. 1997)).
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Chester, :
Petitioner :
:
v. : No. 1040 C.D. 2021
:
John Gresch and Nether Providence :
Township (Workers’ Compensation :
Appeal Board), :
Respondents :
ORDER
AND NOW, this 6th day of July, 2023, the order of the Workers’
Compensation Appeal Board, entered August 26, 2021, is AFFIRMED.
LORI A. DUMAS, Judge