Usually, if the testimony of an injured worker, and that of the medical expert offered by the injured worker, is not found credible by the Workers’ Compensation Judge (WCJ), there is no way to win the case. This highlights just how important it is to have a “presumption” under the law, such as that available to firefighters. As a recent decision of the Commonwealth Court of Pennsylvania shows, having the “presumption” can be the difference between winning and losing a workers’ comp case in PA.
We have previously discussed the presumption that cancer suffered by a firefighter is related to his or her work duties and work exposure. We have addressed the different types of cancer implicated in this presumption, as well as who can use the presumption. What we have not addressed is how important it is to actually have this presumption. And that is what is clearly seen in Deloatch v. Workers’ Compensation Appeal Board (City of Philadelphia), decided recently by the Commonwealth Court of Pennsylvania.
The injured worker here was a firefighter who was diagnosed with lung cancer. He filed a Claim Petition, which was litigated before a WCJ. The injured worker testified that he was exposed to diesel fumes and smoke from fires throughout his years of service with the Fire Department. Though he stopped smoking years before, the injured worker agreed he had a 30 to 35-year-long history of smoking cigarettes. The medical evidence presented by the injured worker connected the lung cancer to his occupational exposure as a firefighter. Medical evidence offered by the workers’ compensation insurance company showed that the lung cancer was not due to his work as a firefighter, but was “most likely” from personal factors (primarily smoking).