G. Cantz v. WCAB (City of Philadelphia) ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Gerald Cantz, :
Petitioner :
:
v. : No. 1321 C.D. 2017
: Submitted: February 23, 2018
Workers’ Compensation Appeal :
Board (City of Philadelphia), :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: August 20, 2018
Gerald Cantz (Claimant) petitions for review of an order of the
Workers’ Compensation Appeal Board (Board), which affirmed the decision and
order of a Workers’ Compensation Judge (WCJ), thus denying Claimant’s claim
petition for benefits under the Workers’ Compensation Act (Act).1 We now affirm.
At issue in this matter is whether Claimant, a former firefighter,
established that he developed a compensable occupational disease in the form of
prostate cancer. Before reciting the particular facts surrounding this appeal, a brief
review of the relevant statutory provisions and case law is helpful. Section 301(c)(2)
of the Act, as amended, 77 P.S. § 411(2), provides that a compensable “injury”
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
includes any “occupational disease as defined in [S]ection 108 of this act.” In turn,
Section 108 of the Act,2 77 P.S. § 27.1, enumerates a number of occupational
diseases. In 2011, the General Assembly enacted what is known as Act 46,3 which,
inter alia, added cancer to the list of occupational diseases for firefighters. This
addition is found in Section 108(r) of the Act, 77 P.S. § 27.1(r), and it provides that
cancer is a compensable injury when it is “caused by exposure to a known
carcinogen which is recognized as a Group 1 carcinogen by the International
Agency for Research on Cancer [(IARC)].” (Emphasis added.)
Section 301(e) of the Act,4 77 P.S. § 413, establishes a “presumption
regarding occupational disease” that applies to any occupational disease sustained
by any employee in any line of work. Section 301(e) provides:
If it be shown that the employe, at or immediately before
the date of disability, was employed in any occupation or
industry in which the occupational disease is a hazard, it
shall be presumed that the employe’s occupational disease
arose out of and in the course of his employment, but this
presumption shall not be conclusive.
(Emphasis added.) Additionally, Section 301(f) of the Act,5 77 P.S. § 414, provides
for a special presumption when the occupational disease is cancer and the employee
is a firefighter. Section 301(f) provides:
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
[S]ection 108(r) relating to cancer by a firefighter and
have successfully passed a physical examination prior to
2
Added by the Act of October 17, 1972, P.L. 930, as amended.
3
Act of July 7, 2011, P.L. 251.
4
Added by the Act of October 17, 1972, P.L. 930.
5
Added by the Act of July 7, 2011, P.L. 251.
2
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. 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 [S]ection 108(r) as documented by reports
filed pursuant to the Pennsylvania Fire Information
Reporting System and provided that the member’s claim
is based on direct exposure to a carcinogen referred to in
[S]ection 108(r). Notwithstanding the limitation under
subsection (c)(2) with respect to disability or death
resulting from an occupational disease having to occur
within three hundred weeks after the last date of
employment in an occupation or industry to which a
claimant was exposed to the hazards of disease, claims
filed pursuant to cancer suffered by the firefighter under
[S]ection 108(r) may be made within six hundred weeks
after the last date of employment in an occupation or
industry to which a claimant was exposed to the hazards
of disease. The presumption provided for under this
subsection shall only apply to claims made within the first
three hundred weeks.
(Emphasis added.)
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, then he may take advantage of the statutory presumption
in Section 301(f) of the Act, provided that the firefighter filed the claim within 300
weeks of his last day of employment. The presumption relieves the firefighter of the
need to prove that his cancer was caused by his workplace exposure and not another
cause. See 77 P.S. § 413. The employer may then rebut this presumption through
3
“substantial competent evidence that shows that the firefighter’s cancer was not
caused by the occupation of firefighting.” 77 P.S. § 414. Alternatively, the
firefighter may elect to seek compensation without the aid of the statutory
presumption, in which case he must establish a causal link between his occupational
disease and his workplace exposure. Section 108(n) of the Act, 77 P.S. § 27.1(n),
allows for any employee to pursue compensation for any disease “causally related
to [his] industry or occupation.” The instant case involves Claimant attempting to
establish a compensable injury through application of the statutory presumption.
Our first occasion to interpret Section 108(r) of the Act came in City of
Philadelphia Fire Department v. Workers’ Compensation Appeal Board (Sladek),
144 A.3d 1011 (Pa. Cmwlth. 2016) (en banc), appeal granted, 167 A.3d 707 (Pa.
2017), wherein this Court vacated the Board’s award of benefits to a firefighter with
malignant melanoma because the award was based upon the Board’s incorrect
interpretation of Section 108(r). The Board in Sladek construed Section 108(r) to
mean that a firefighter’s cancer is presumed work-related if the firefighter was
exposed to a Group 1 carcinogen at work, regardless of whether the firefighter’s
cancer is a type of cancer known to be caused by exposure to Group 1 carcinogens.
We rejected this interpretation and instead concluded that Section 108(r) requires
the firefighter to show that the Group 1 carcinogens to which he was exposed have
been shown to cause the type of cancer for which the claimant has been diagnosed.
Further, we explained that a claimant may benefit from the rebuttable presumptions
found in Sections 301(e) and (f) of the Act only after the claimant establishes that
his cancer is an occupational disease under Section 108(r).
Similarly, in Demchenko v. Workers’ Compensation Appeal Board
(City of Philadelphia), 149 A.3d 406 (Pa. Cmwlth. 2016), we affirmed the Board’s
4
denial of benefits to a firefighter diagnosed with prostate cancer. The Board in
Demchenko upheld a WCJ’s finding that the claimant did not prove that prostate
cancer was an occupational disease under Section 108(r) of the Act. This Court
affirmed, reasoning that because the claimant failed to establish that prostate cancer
is an occupational disease for firefighters under Section 108(r) of the Act—i.e., that
exposure to Group 1 carcinogens is known to cause prostate cancer—the claimant
could not utilize the statutory presumption in Section 301(f) of the Act. With the
foregoing in mind, we now turn to the facts of the instant appeal.
Claimant worked as a firefighter for the City of Philadelphia
(Employer) from November 1977 until he retired on July 21, 2007. In
December 2009, a urologist diagnosed Claimant with prostate cancer, for which
Claimant later received treatment.
On April 20, 2012, Claimant filed a claim petition alleging a
compensable occupational disease in the form of prostate cancer. The claim petition
averred that Claimant sustained prostate cancer due to exposure to
Group 1 carcinogens over the course of his career as a firefighter. In support of his
claim petition, Claimant provided his own deposition testimony, in addition to
providing medical reports and deposition testimony of various medical experts.
Claimant testified that he worked for Employer as a firefighter for
approximately 30 years. (Reproduced Record (R.R.) at R80.) Claimant received a
physical prior to beginning his employment, which apparently did not discover any
form of cancer. (Id. at R80, R82.) Claimant stated that he was routinely exposed to
diesel exhaust, smoke, soot, and hazardous materials throughout his career. (Id. at
R80-R82.) Claimant estimated that he responded to hundreds of fires throughout his
career. (Id. at R82.) Claimant testified that he sometimes wore his self-contained
5
breathing apparatus when fighting fires, but he stated that each fire he responded to
involved direct exposure to smoke when he took off his apparatus during the end
stages of the fire response. (Id. at R81-R82.) Claimant’s last fire response occurred
in 2007—the same year he retired. (Id. at R83.) In December 2009, a urologist
diagnosed Claimant with prostate cancer. (Id. at R82.) Claimant underwent surgery
to remove his prostate in January 2010, and he is still receiving medical treatment
and supervision. (Id. at R83.)
In an effort to avail himself of the statutory presumption in
Section 301(f) of the Act, Claimant attempted to establish that exposure to
Group 1 carcinogens is known to cause prostate cancer by submitting deposition
testimony and medical reports from multiple physicians. First, Claimant submitted
a medical report from Virginia Weaver, M.D., M.P.H. (Dr. Weaver), a physician
who is board certified in internal medicine and occupational medicine. Dr. Weaver
opined that firefighters are exposed to Group 1 carcinogens in the course of their
work, many of which are found in smoke from burning structures, including
buildings and automobiles. (Id. at R48.) She further stated that although firefighters
use protective equipment, the degree of protection is nevertheless incomplete;
firefighters routinely observe black soot on their skin and in nasal discharges after
major fires, and, until recently, most firefighters routinely removed their respiratory
protection during the overhaul process. (Id.) Dr. Weaver, however, did not provide
any specific testimony relating to the causal relationship between a firefighter’s
exposure to certain Group 1 carcinogens and the development of prostate cancer.
Claimant next submitted the deposition testimony of Barry L. Singer,
M.D. (Dr. Singer), who is board certified in internal medicine, hematology, and
medical oncology. Dr. Singer stated that, in 2008, Claimant’s counsel contacted him
6
to evaluate the cancer history of a number of firefighters to determine whether their
cancer was work-related and, thus, compensable under the Act. Dr. Singer estimated
that, since 2008, he has reviewed 40 to 50 cases on referral from Claimant’s counsel.
Approximately 25 of those referrals involved firefighters with prostate cancer.
Here, Dr. Singer opined regarding the specific Group 1 carcinogens
associated with firefighting and their potential relationship to the onset of
prostate cancer. Specifically, Dr. Singer testified that cadmium, arsenic, and
benzoapyrene are all Group 1 carcinogens to which firefighters are exposed in the
performance of their duties. (Id. at R917.) Dr. Singer opined that, to a reasonable
degree of medical certainty, the aforementioned Group 1 carcinogens are related to
prostate cancer. (Id. at R920.)
In opposition, Employer submitted the deposition testimony of Tee
Guidotti, M.D., M.P.H. (Dr. Guidotti), who is board certified in internal medicine,
pulmonary medicine, and occupational disease, in addition to being trained in
toxicology and epidemiology. Dr. Guidotti opined that, as a matter of general
causation, there is insufficient evidence from which to conclude that prostate cancer
is caused by exposure to Group 1 carcinogens related to firefighting. Dr. Guidotti
further opined that prostate cancer is not commonly attributable to occupational
exposures, as the primary risk factors for prostate cancer are age, followed by family
history. Dr. Guidotti asserted that prostate cancer is the leading type of cancer
among men and opined that prostate cancer is not attributable to occupational
exposures. Specifically, he stated that prostate cancer is “much more a disease of
aging than it is of external influences.” (Id. at R1449.)
In response to Employer’s evidence, Claimant presented a 2012 report
composed by Grace LeMasters, Ph.D., M.S. (Dr. LeMasters), a professor of
7
epidemiology and biostatistics in the Department of Environmental Health at the
University of Cincinnati College of Medicine. The report essentially challenges Dr.
Guidotti’s overall conclusions regarding firefighter exposures to Group 1
carcinogens and the onset of prostate cancer. To the contrary of Dr. Guidotti’s
testimony, Dr. LeMasters opined that prostate cancer is related to fire service
exposures, and that there is a “biologic plausibility of the association between
firefighter exposures and . . . prostate cancer.” (Id. at R34.)
By decision and order circulated on November 6, 2014, the WCJ
dismissed the claim petition. In so doing, the WCJ concluded that Claimant failed
to provide Employer timely notice of injury. Claimant appealed this decision. By
opinion and order dated August 21, 2015, the Board reversed. The Board concluded
that Claimant’s claim petition was timely, and the Board remanded the matter to the
WCJ for a determination on the merits.
On remand, the WCJ again dismissed the claim petition. This time, the
WCJ concluded that Claimant failed to establish a causal link between prostate
cancer and exposure to Group 1 carcinogens related to firefighting. The WCJ found
Dr. Guidotti’s medical opinion more credible than that of Dr. Singer on the issue of
causation. Claimant again appealed. By opinion and order dated August 29, 2017,
the Board affirmed. In affirming, the Board reasoned:
The onus was on Claimant in this matter to establish
entitlement to relief. Section 108(r) [of the Act] requires
a claimant to establish that the cancer contracted is a type
of cancer caused by exposure to the Group 1 carcinogen to
which the claimant was exposed in the workplace. A
claimant seeking compensation for cancer under
Section 108(r) must establish that his disease is a type of
cancer caused by exposure to a carcinogen recognized as
a Group 1 carcinogen.
8
Here . . . Claimant did not demonstrate that his prostate
cancer is an occupational disease for firefighters under
Section 108(r) of the Act. As discussed, the WCJ, as
factfinder, rejected the testimony of Dr. Singer. The WCJ
provided reasons for rejecting Dr. Singer’s opinions that
are consistent with the evidence of record. We reiterate
that rendering credibility determinations is the
quintessential function of the fact[]finder. While Claimant
contends that [Employer’s] evidence was not sufficient to
deny his claim, the onus was on him, not [Employer], to
establish entitlement to relief.
(Board Op. dated August 27, 2017, at 12-13) (internal citations omitted) (emphasis
added). Claimant then petitioned this Court for review.6
Claimant argues that the Board erred as a matter of law in affirming the
WCJ’s decision. Specifically, Claimant argues that the Board failed to apply the
statutory presumption found in Section 301(f) of the Act. Claimant avers that the
record establishes that prostate cancer is a type of cancer caused by Group 1
carcinogens, as required by Section 108(r) of the Act. Claimant, therefore, argues
that the Board should have applied the presumption and awarded benefits, as
Claimant avers that Employer failed to rebut the presumption of compensability.
Claimant’s argument here is nearly identical to that made in Hutz v.
Workers’ Compensation Appeal Board (City of Philadelphia), 147 A.3d 35
(Pa. Cmwlth. 2016), wherein we affirmed the denial of benefits to a claimant due to
his failure to establish that exposure to Group 1 carcinogens is known to cause
prostate cancer. In Hutz, the WCJ found that the claimant’s expert testimony failed
to credibly establish that exposures to Group 1 carcinogens caused prostate cancer,
6
Our review is limited to determining whether the WCJ’s findings of fact were supported
by substantial evidence, whether an error of law was committed, or whether constitutional rights
were violated. Phoenixville Hosp. v. Workers’ Comp. Appeal Bd. (Shoap), 81 A.3d 830, 838
(Pa. 2013).
9
as the WCJ found the employer’s expert testimony more credible. On appeal to this
Court, the claimant argued that he satisfied his necessary burden to avail himself of
the presumption found in Section 301(f) of the Act. We disagreed, noting that the
claimant was essentially attempting to challenge the WCJ’s credibility
determinations, and such a challenge is beyond this Court’s scope of review.
Specifically, we explained:
In workers’ compensation cases, the WCJ is the
ultimate fact-finder and has exclusive province over
questions of credibility and evidentiary weight. The WCJ
may accept the testimony of any witness, including a
medical witness, in whole or in part. We are bound by the
WCJ’s credibility determinations.
Moreover, it is irrelevant whether the record
contains evidence supporting findings other than those
made by the WCJ; the crucial inquiry is whether the
evidence supports the findings actually made. Therefore,
we must examine the entire record to see if it contains
evidence a reasonable person might find sufficient to
support the WCJ’s findings. If the record contains such
evidence, the findings must be upheld, even though the
record may contain conflicting evidence. Additionally, we
must view the evidence in the light most favorable to the
prevailing party and give it the benefit of all inferences
reasonably deduced from the evidence.
Hutz, 147 A.3d at 54 (internal citations omitted) (emphasis added).
Here, just as in Hutz, Claimant is arguing that the WCJ should have
found that exposure to Group 1 carcinogens is known to cause prostate cancer given
the record evidence. We disagree. The WCJ concluded, and the Board affirmed,
that Claimant failed to meet his burden of proving that prostate cancer is causally
related to exposure to Group 1 carcinogens. In so concluding, the WCJ made the
following relevant findings:
9. Additionally, this [WCJ] does not find Dr. Singer’s
causation opinion linking Claimant’s prostrate [sic]
10
cancer to his work duties credible. Dr. Singer is
admittedly not an expert in urology, occupational
medicine, toxicology[,] or epidemiology. He is not
engaged in primary cancer research and has never
published a paper on the etiology of cancer or its
effect upon firefighters. By comparison, Dr.
Guidotti is certified by the American Board of
Occupational Medicine, has a degree in toxicology,
has expertise in epidemiology[,] and has performed
primary research studies on firefighters and cancer.
Additionally, Dr. Singer is not Claimant’s treating
physician. For these reasons, Dr. Guidotti’s opinion
carries greater weight.
10. Dr. Guidotti credibly explained why [Dr.]
LeMasters’ study relied upon by Dr. Singer was
insignificant and why. Additionally, the IARC (i.e.
[t]he agency relied upon in Act 46 of 2011 to
identify known carcinogens) itself does not
recognize an “association” with firefighting and
prostate cancer. [This WCJ] deems credible Dr.
Guidotti’s opinion that prostate cancer is different
from other cancers since a large percentage of the
male population is eventually diagnosed with this
condition no matter what their occupation. As such,
“it is much more a disease of aging than it is of
external influences[.]”
(WCJ Decision dated August 16, 2016, Findings of Fact 9-10) (internal citation
omitted).
After review, we conclude that the WCJ’s findings are amply supported
by the record. While Claimant may believe that certain evidence, if accepted,
supports a finding in his favor, that is not our standard of review. Hutz, 147 A.3d at
54.
Accordingly, we affirm the Board’s order.
11
P. KEVIN BROBSON, Judge
Judge Fizzano Cannon did not participate in the decision of this case.
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Gerald Cantz, :
Petitioner :
:
v. : No. 1321 C.D. 2017
:
Workers’ Compensation Appeal :
Board (City of Philadelphia), :
Respondent :
ORDER
AND NOW, this 20th day of August, 2018, the order of the Workers’
Compensation Appeal Board is AFFIRMED.
P. KEVIN BROBSON, Judge