Volunteer Firefighter Must Show Specific Proof of Exposure to Get Presumption in PA Workers’ Comp

With the recent decision by the Supreme Court of Pennsylvania to accept appeal in the Sladek case, and the multitude of cases in Commonwealth Court, litigation regarding the presumption of cancer in firefighters is a hot topic.

One area which was not addressed, until the recent Commonwealth Court decision in Steele v. Workers’ Compensation Appeal Board (Findlay Township), is the difference between volunteer firefighters and professional ones.  While both of these brave men and women put their lives on the line regularly, the Pennsylvania Workers’ Compensation Act treats them very differently for the cancer presumption.

Each falls under the presumption, making it easier for a firefighter who contracts cancer from the job, to get PA workers’ compensation benefits.  However, there is one requirement in the Pennsylvania Workers’ Compensation Act (Act) which is only applicable to a volunteer firefighter:

Any claim made by a member of a volunteer fire company shall be based on evidence of direct exposure to a carcinogen referred to in section 108(r) as documented by reports filed pursuant to [Pennsylvania Fire Information Reporting System (PennFIRS)] and provided that the member’s claim is based on direct exposure to a carcinogen referred to in section 108(r).

A Fatal Claim Petition was filed by the widow of a volunteer firefighter, who passed away due to lung cancer.  In litigating the case, no PennFIRS reports were introduced into evidence, but fact testimony was offered to prove that he had been exposed to the carcinogens while working for the volunteer fire company.  In finding the testimony credible, the Workers’ Compensation Judge (WCJ) granted the Fatal Claim Petition.   Since the PennFIRS reports were within the Employer’s control, and since the fact testimony showed that he had been directly exposed to Group 1 carcinogens, the WCJ concluded that the PennFIRS reports were not necessary for the burden of proof.

Unfortunately for the widow, this decision was reversed by the Workers’ Compensation Appeal Board (WCAB), who concluded that the Act specifically requires that PennFIRS reports be provided.  The WCJ exceeded his authority by basing his decision on the fact testimony.

Upon further appeal, to the Commonwealth Court of Pennsylvania, the Court agreed with the reasoning of the WCAB.  The specific terms of the Act could simply not be ignored, explained the Court:

Here, the Act clearly requires that in addition to the requirements all firefighters must establish, volunteer firefighters shall also provide evidence of direct exposure to carcinogens as documented by PennFIRS reports. The lay testimony of Claimant and two firefighters who fought alongside Decedent is insufficient to satisfy this requirement.”

However, this did not end the case for the widow.  The Court recognized that the widow may still be able to obtain benefits through a different section of the Act.  As such, rather than simply affirm the decision of the WCAB, the Court vacated the decision of the WCAB, and remanded the case for the lower courts to determine whether benefits may be awarded on a different basis.