Presumption of Work-Relatedness of Cancer Suffered by Firefighter Examined


Under the Pennsylvania Workers’ Compensation Act, injured workers in PA are protected against most types of injuries or conditions.  One thing specifically noted is a category of “occupational diseases.” These cover ailments found predominantly in a specified profession, above the levels found generally, and create a presumption of the disease being related to the work activities.  A specific example of an occupational disease is contained in Section 108(r), pertaining to firefighters.  It reads:

“Cancer suffered by a firefighter which is caused by exposure to a known carcinogen which is recognized as a Group 1 carcinogen by the International Agency for Research on Cancer.”

A recent decision by the Commonwealth Court of Pennsylvania had to interpret this Section of the PA Workers’ Compensation Act, and decide when the presumption is appropriate.

In City of Philadelphia Fire Department v. Workers’ Compensation Appeal Board (Sladek), the injured worker was a firefighter who developed a skin lesion on the back of his right thigh, which was found to be a malignant melanoma.  The injured worker (Mr. Sladek) testified that his doctor told him the melanoma was caused by sun exposure.  He further admitted that he never had sun exposure on his thigh while at work.

The injured worker then offered a report of one medical expert which said the smoke to which Mr. Sladek would have been exposed would have contained “IARC Group 1 carcinogens: arsenic; asbestos; benzene; benzo[a]pyrene; butadiene; formaldehyde; and soot.”  The doctor did not say what type of cancer these carcinogens caused.

Finally, Mr. Sladek presented the testimony of another physician, Dr. Singer, who agreed with the carcinogens found in smoke noted above and opined “that Claimant’s exposure to Group 1 carcinogens while working for Employer was ‘a substantial contributing factor in the development of his skin cancer malignant melanoma.’”  But, on cross-examination, Dr. Singer admitted that he was not aware of any study that linked any of these carcinogens to malignant melanoma.  Further, Dr. Singer conceded that his methodology for determining causation is different than every other type, and that he had considered no other cause of the cancer.  Finally, Dr. Singer agreed that he did not have any knowledge about Claimant’s exposure to sunlight while working as a firefighter.

The workers’ compensation insurance carrier present testimony of another physician, Dr. Guidotti, who said that not all IARC Group 1 carcinogens cause every type of cancer.  Specific carcinogens cause specific cancers.  Sunlight causes malignant melanoma; the carcinogens in the smoke listed above do not.

Though the evidence would seem to favor the Employer, the Workers’ Compensation Judge (WCJ) found the injured worker and his medical experts more credible, and granted the Claim petition.  Specifically, “the WCJ found that Claimant’s workplace exposure to arsenic and soot, which are Group 1 carcinogens, was a significant contributing factor to his malignant melanoma.”

Upon appeal to the Workers’ Compensation Appeal Board (WCAB), the decision was largely affirmed.  The WCAB found that the injured worker had no burden to show the carcinogen to which he was exposed caused his particular cancer.  The fact the carcinogen was listed in Section 108(r) was sufficient.  “Once Claimant proved exposure to Group 1 carcinogens at work, the burden shifted to Employer to show that Claimant’s cancer was not caused by firefighting, and Dr. Guidotti’s testimony did not meet that burden. Although Dr. Guidotti opined that the only known cause of malignant melanoma is ultraviolet radiation, he did not opine that this is what caused Claimant’s malignant melanoma.”

On appeal to the Commonwealth Court of Pennsylvania, however, this decision was vacated.  The analysis of the Court started with the impact of a listed disease under Section 108 generally:

“ . . . where a claimant has an occupational disease listed in Section 108 of the Act, the claimant need not prove this occupational disease was caused by workplace exposure, as opposed to another exposure. It is the employer’s burden at that point to prove, for example, that it was not workplace pollution that caused the claimant’s lung cancer but, rather, his three-pack a day cigarette habit.”

However, there is something different about Section 108(r).  As the Court noted, Section 108(r) has language not found in other disease listings under Section 108:

“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 section 108(r) 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 the examination failed to reveal any evidence of the condition of cancer. The presumption of this subsection may be rebutted by substantial competent evidence that shows that the firefighter’s cancer was not caused by the occupation of firefighting.”

The Court then found that the legislature put in the words “caused by” in Section 108(r) for a reason, and that these words must be given meaning.  As the Court then noted:

“It was incumbent upon Claimant to prove that his malignant melanoma is a type of cancer caused by the Group 1 carcinogens to which he was exposed in the workplace to establish an occupational disease. Only then do the presumptions in Section 301(e) and (f) of the Act come into play.”

The Court concluded that the WCAB erred in saying the testimony of Dr. Singer was irrelevant, since “Dr. Singer’s testimony is relevant to Claimant’s initial burden, which is to show that melanoma is a type of cancer caused by exposure to Group 1 carcinogens.”  The Court added that the WCAB also erred in dismissing the testimony of Dr. Guidotti because it felt it was irrelevant given the Section 108 presumption.  In point of fact, the Court said, “Dr. Guidotti’s testimony was relevant both to the initial question of whether Claimant’s malignant melanoma was an occupational disease and to Employer’s rebuttal of the statutory presumption in Section 301(e) of the Act.”

Notably, this decision was vacated and remanded, not reversed.  That means that the injured worker did not lose, but simply that the decision granting the Claim Petition used an incorrect standard and has to be reviewed again.  The Court was very specific in what was to now take place:

“Because the Board has erred in its construction of Section 108(r) of the Act, we will vacate and remand this claim petition. Upon remand, the Board must consider whether Dr. Singer’s opinion was properly admitted. In this regard, it must first determine whether the Act requires a medical expert to satisfy Pennsylvania Rule of Evidence 702,16 i.e., the Frye standard. If so, then the Board must determine whether Dr. Singer’s report satisfies this standard. If it concludes that Dr. Singer’s report was properly admitted, then the Board must remand the matter to the WCJ to determine whether to accept Dr. Guidotti’s causation opinion or Dr. Singer’s causation opinion. Should Claimant’s evidence on causation prevail, he will have established that melanoma is an occupational disease under Section 108(r). At that point, the presumption in Section 301(e) comes into play and assists Claimant, who is relieved of having to rule out other causes for his melanoma, such as his outdoor lifestyle. The WCJ must then determine whether Claimant had “four or more years in continuous firefighting duties, can establish direct exposure to a carcinogen referred to in section 108(r) … and … successfully passed a physical examination … prior to engaging in firefighting duties and the examination failed to reveal any evidence of the condition of cancer.” Section 301(f) of the Act, 77 P.S. §414. If Claimant’s evidence meets these criteria, then Claimant will have made a prima facie case that his melanoma is a compensable injury. The burden then shifts to Employer. On remand, therefore, the WCJ must determine whether Employer’s evidence rebuts the presumption set forth in Sections 301(e) and (f).”

While at first blush, one could fear that the Court usurped the role of the WCJ, since determinations of credibility had already been made, finding the opinion of Dr. Singer more credible than that of Dr. Guidotti, a thorough reading reveals the Court was properly pointing out what legal standard had been used, and what should have been used.  While we do not know how this matter will conclude, we do gain some insight into Section 108(r).

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