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Presumption Makes Difference for Firefighter in PA Workers’ Comp Case

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).

The first WCJ (a hint that this case had a complicated litigation history!) dismissed the Claim Petition.  Though the WCJ found that the injured worker “was exposed to IARC Group 1 carcinogens in the course of his career as a firefighter and paramedic” (noting that Defendant did not offer any evidence to the contrary), the WCJ found the testimony of the injured worker not credible regarding the history of cigarette smoking, and was not entitled to the presumption that the lung cancer was related to the exposure at work.  The WCJ further found the testimony and medical evidence offered by the injured worker not credible.  On the other hand, the medical evidence offered by the workers’ comp insurance carrier was found credible.

On appeal, the Workers’ Compensation Appeal Board (WCAB), reversed, finding that since the injured worker “established entitlement to the statutory presumption and that Employer failed to provide evidence sufficient to rebut the presumption,” the WCJ erred in failing to apply the presumption.  The WCAB remanded (sent the case back to) the WCJ “to make findings of fact and conclusions of law regarding an award and any recoverable lien, taking into consideration a relevant subrogation agreement.”

The second WCJ granted the Claim Petition, as directed by the WCAB.  Fascinatingly, the WCAB then reversed the WCJ again, and had the Claim Petition denied.  This was then appealed to the Commonwealth Court of Pennsylvania by the injured worker.

After reciting the history of the case, the Court applied the law:

In sum, to establish that a firefighter’s cancer is an occupational disease compensable under the Act, the firefighter must show that his type of cancer is one ‘caused by exposure to a known carcinogen which is recognized as a Group 1 carcinogen.’ 77 P.S. § 27.1(r). Once a firefighter establishes that his type of cancer is an occupational disease, he may take advantage of the statutory presumption in Section 301(f) of the Act, provided that the firefighter demonstrates that he (1) has served continuously as a firefighter for four years or more, (2) had direct exposure to a Group 1 carcinogen linked to his type of cancer, (3) passed a physical examination—either before asserting a claim or engaging in firefighting duties—which revealed no evidence of cancer, and (4) filed the claim within 300 weeks of his last day of employment. The presumption relieves the firefighter of the need to prove that his workplace exposure, and not another cause, was the actual and specific cause of his cancer. See 77 P.S. § 413. The employer may rebut this presumption through ‘substantial competent evidence that shows that the firefighter’s cancer was not caused by the occupation of firefighting.’ 77 P.S. § 414.”

To obtain the presumption, then, the injured worker need only produce evidence “that it is possible that the carcinogen in question caused the type of cancer with which the claimant is afflicted.”  Once the presumption is applied, then the burden falls to the workers’ compensation insurance carrier, who must prove “the specific, non-firefighting related cause of claimant’s cancer.”  In other words, it will not be enough for the insurance carrier to merely rule out workplace exposure or provide general epidemiological evidence.

In examining the facts of the case, the Court found that the WCJ “accepted that Claimant was exposed to IARC Group 1 carcinogens in the course of his employment,” and that there is, “sufficient evidence of a causal link between diesel exhaust, which is an IARC Group 1 carcinogen, and lung cancer.”  This was not rebutted by the workers’ compensation insurance carrier, so the injured worker was, indeed, entitled to the presumption.

This switched the burden to the insurance company to prove “the specific causative agent” of the cancer.  Since the medical evidence offered by the insurance carrier (and found credible by the WCJ) was only that the lung cancer was “most likely” caused by personal risk factors (primarily smoking), the opinion did not rise to the level of “reasonable medical certainty” which is required to form substantial competent evidence.  Thus, the injured worker met the requirements of the presumption, and the insurance carrier failed to overcome the presumption.  This, said the Court, means the WCAB erred in the second decision and that the Claim Petition must be granted.

The importance of the presumption is seen in the fact that the WCJ found the testimony of the injured worker, and his medical expert, largely not credible.  The evidence offered by the workers’ comp insurance carrier was found mostly credible.  In the ordinary litigation of a Claim Petition, where the injured worker bears the burden to prove every aspect of the case, there is a 100% chance that the Claim Petition under these circumstances would be denied by a WCJ, and an appeal would simply affirm such a determination.  The only saving grace is that presumption, which changes everything.  And, given that these firefighters put their lives on the line every day to protect the general public, this is a satisfying result to a complicated issue.