Court Refuses to Allow PA Workers’ Comp Insurer to Avoid Benefits for Work-Related Cancer

Several years ago, we related that the Pennsylvania legislature passed Act 46, which created a presumption that cancer suffered by veteran firefighters is related to their work duties.  This amendment to the Pennsylvania Workers’ Compensation Act was largely cheered by all (other than workers’ comp insurers, of course!).  The Supreme Court of Pennsylvania explained the presumption threshold as:

“(A) firefighter-claimant asserting a cancer claim under Section 108(r) of the Act, 77 P.S. §27.1(r), must first establish that he was diagnosed with a type of cancer possibly caused by one or more IARC Group 1 carcinogens.”

As with any legislation, there were differences in how the law should be interpreted.  Certainly, we have had litigation regarding the types of cancer involved.  But, another area of confusion developed due to the difference in how the law treats career firefighters, as opposed to volunteer firefighters.  We discussed the 2017 decision of the Commonwealth Court in Steele v. Workers’ Compensation Appeal Board (Findlay Township) previously in our blog.  The dispute in that case boiled down to the requirement that a volunteer firefighter must prove exposure to the carcinogen through reports filed under the Pennsylvania Fire Information Reporting System (PennFIRS).

In the Steele case, the volunteer firefighter did not offer any PennFIRS reports into evidence, relying instead on testimony from other firefighters to establish the exposure to the carcinogens.  While the Workers’ Compensation Judge (WCJ) found this evidence sufficient, and granted the Claim Petition, the decision was reversed by the Workers’ Compensation Appeal Board (WCAB).  The WCAB found that the Act specifically states that PennFIRS reports be used, so the WCJ committed an error of law in ignoring that requirement.  The Commonwealth Court of Pennsylvania agreed, and affirmed the decision of the WCAB.

Which brings us to the recent decision by the Commonwealth Court of PA in Bristol Borough v. Workers’ Compensation Appeal Board (Burnett).  In this case, PennFIRS reports were used to demonstrate that the injured worker was at the fire calls, but these reports did not specifically state the carcinogens to which the injured worker was exposed.  This was accomplished by expert medical evidence.  Indeed, the injured worker offered testimony from the Fire Commissioner that PennFIRS reports do not typically contain information as to carcinogens present at a scene, since such testing would be burdensome and cost-prohibitive.  The workers’ compensation insurer argued that the PA Workers’ Compensation Act (Act) requires that a claim cannot be successful unless the PennFIRS reports identify the actual carcinogen present.

The WCJ granted the Claim Petition, finding that the injured worker proved his entitlement to workers’ compensation benefits through his expert medical evidence that the diffuse large B-cell/Non-Hodgkin’s lymphoma (large B-cell NH-lymphoma) was related to the fire smoke he would have encountered.  Further, the WCJ found that the “incident participation report,” which was based on the PennFIRS reports, was sufficient to meet the requirements under the Act.  On appeal, the WCAB affirmed the decision of the WCJ.

Upon further appeal, the Commonwealth Court of Pennsylvania also affirmed.  While the PennFIRS reports had to be used, such use to establish that the injured worker was on the scene of the fire calls was enough to be consistent with the Act.  To find for the workers’ comp insurer would lead to the cancer presumption being virtually useless to volunteer firefighters (since those companies did not have the resources to identify particular carcinogens present at each fire scene).  Specifically, the Court explained:

“ . . . we are convinced that the only reasonable and practicable interpretation of the PennFIRS reporting requirement in Section 301(f) 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. Sladek. Such an interpretation gives proper effect to all the provisions in Section 301(f) without imposing a requirement on a volunteer firefighter-claimant that is unreasonable, impracticable and, for all intents and purposes, impossible of execution.”

Because Claimant’s incident participation report was compiled using PennFIRS data entered into the PennFIRS computerized system by his volunteer fire company, we hold that Claimant satisfied the PennFIRS reporting requirement in Section 301(f) of the Act.”

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