V. Regan v. City of Philadelphia (WCAB) ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Vincent Regan, :
:
Petitioner :
:
v. : No. 1277 C.D. 2020
: Submitted: November 18, 2021
City of Philadelphia (Workers’ :
Compensation Appeal Board), :
:
Respondent :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: December 13, 2021
Theresa Regan (Claimant) petitions for review of the order of the
Workers’ Compensation Appeal Board (Board), which affirmed the decision of a
workers’ compensation judge (WCJ) denying the Claim Petitions filed by Vincent
Regan (Decedent) and Claimant’s Fatal Claim Petition following remand by this
Court in Regan v. Workers’ Compensation Appeal Board (City of Philadelphia) (Pa.
Cmwlth., No. 141 C.D. 2018, filed January 18, 2019), directing the WCJ and the
Board to apply the holding of City of Philadelphia Fire Department v. Workers’
Compensation Appeal Board (Sladek), 195 A.3d 197 (Pa. 2018), in disposing of the
Claim and Fatal Claim Petitions. We affirm.
On July 9, 2012, Decedent filed a Claim Petition pursuant to Section
108(r) of the Workers’ Compensation Act (Act), alleging that he sustained a
compensable injury in the nature of metastatic lung cancer as a result of exposure to
International Agency for Research on Cancer (IARC) Group 1 carcinogens in smoke
and diesel exhaust fumes while working for 34 years as a firefighter for the City of
Philadelphia (Employer).1 Decedent asserted that August 13, 2008, was the date of
his last exposure as it was the day that he stopped working for Employer. Decedent
also filed a Claim Petition under Section 108(r) alleging that he sustained a
compensable injury in the nature of prostate cancer also as a result of his exposure
to the Group 1 carcinogens in the course and scope of his employment as of January
1, 2007, and that he suffered a full disability wage loss from January 4, 2007, to
January 25, 2007.
1
Act of June 2, 1915, P.L. 736, as amended, added by the Act of July 7, 2011, P.L. 251,
77 P.S. §27.1(r) (Act 46). Section 108(r) establishes, as an occupational disease, “[c]ancer suffered
by a firefighter which is caused by exposure to a known carcinogen which is recognized as a Group
1 carcinogen by the IARC.” Id. In turn, Section 301(f) of the Act provides, in pertinent part:
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 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 presumption provided for under this
subsection shall only apply to claims made within the first three
hundred weeks.
Added by the Act of July 7, 2011, P.L. 251, 77 P.S. §414.
2
Decedent died on September 29, 2012. On November 26, 2012,
Claimant, Decedent’s widow, filed a Fatal Claim Petition alleging that Decedent
died from metastatic lung cancer. Employer filed Answers to the Claim and Fatal
Claim Petitions denying all of the material allegations raised therein.
Following remand by this Court in Regan, on October 30, 2019, the
WCJ issued a decision in which she made the following relevant findings of fact.
Claimant testified that Decedent became a firefighter in 1974, following a three-year
stint in the Army in Korea from 1969 to 1971, and that he worked continuously until
he retired in 2008. She stated that she observed soot on his firefighting gear and
smelled smoke on his gear. She said that Decedent started smoking when he returned
from Korea and estimated that he smoked about half a pack a day until 2008.
Claimant stated that Decedent’s father was also a smoker and died from lung cancer
as well as prostate cancer. She said that Decedent’s sister had colon cancer and that
Decedent had a number of aunts and uncles who had died of lung cancer as well.
She testified that Decedent also had skin cancer and emphysema. WCJ 10/30/19
Decision at 4-5.
Claimant also submitted deposition testimony from two of Decedent’s
fellow firefighters, Joseph Hitchens and Gene Lancaster. Hitchens testified that he
and Decedent fought 15 to 20 “good” fires together annually while working in the
same platoon for Employer, and that he witnessed Decedent participate in various
stages of firefighting. He stated that he saw Decedent wearing a self-contained
breathing apparatus (SCBA), which was generally used during the initial stages of a
fire, and that he saw Decedent cut open roofs during the ventilation process. He
added that the fire trucks were fueled with diesel fuel, that a diesel exhaust system
was installed in the firehouse in the 1990s, and that it was upgraded after 2000. He
3
testified that he witnessed Decedent smoking and that Decedent never received
emergency care for smoke inhalation. WCJ 10/30/19 Decision at 5.
Lancaster testified that he worked fighting fires with Decedent for 30
years. He stated that Decedent fought fires from the exterior by ventilating roofs
and performing overhaul and that smoke inhalation occurred while fighting exterior
fires. He said that an SCBA can be used for approximately 15 to 20 minutes. He
testified that the fire trucks were fueled with diesel fuel and that equipment checks
were performed with the truck engines running, but that there was an exhaust fan in
the fire station. He stated that Decedent was a moderate smoker and never received
emergency medical care for smoke inhalation after a fire. WCJ 10/30/19 Decision
at 5.
Claimant also presented the deposition testimony of Barry Singer,
M.D., who is board certified in internal medicine, hematology, and medical
oncology. He acknowledged that he is not a treating physician in this case, but that
he reviewed Decedent’s affidavit prior to his death, medical records from a family
doctor, and medical records from Decedent’s treating cancer doctors. He learned
that Decedent was treated for prostate cancer that appeared to be localized, and that
an adenocarcinoma lung cancer was diagnosed in 2009. He stated that Decedent
was treated with surgery, but that the cancer recurred and Decedent died as a result
of the cancer in 2012, with the death certificate stating metastatic lung cancer as the
cause of death. WCJ 10/30/19 Decision at 5.
Dr. Singer reviewed general literature regarding firefighting and
cancer, finding therein the fact that firefighters are exposed to Group 1, IARC-
recognized carcinogens. He stated that he reviewed two studies, one from Guidotti
and one from Hansen, which speak to the synergy in the development of lung cancer
4
between asbestos and smoking, but acknowledged that the Hansen study observed
only nine firefighters in Denmark with no control for smoking and that the Guidotti
study did not reach statistical significance. He testified that he was aware of the
Baris study, which found no association between firefighting and the risk of lung
cancer, and acknowledged that there are many studies that do not find an increase in
lung cancer in firefighters. He opined that the IARC list of firefighter carcinogens
cause lung cancer, but noted that smoking confounds the difficulty in establishing
another cause of lung cancer because it is a known cause of that cancer by itself. He
stated that when giving a specific opinion, synergy is something that is factored into
his opinion. He testified that there is no question that Decedent was a heavy smoker,
but given the number of fire runs that he made while firefighting, there was
significant exposure to fire and its carcinogenic contents, and that the combination
would be synergistic in his development of lung cancer. Ultimately, he opined that
Decedent’s service and exposure to carcinogens as a firefighter was a substantial
contributing factor in his death from lung cancer. WCJ 10/30/19 Decision at 6-7.
However, the WCJ made the following findings regarding Dr. Singer’s
testimony:
10. Dr. Singer was deposed on methodology [] and his
testimony shows that he was unable to cite any authority
to support his belief that differential diagnosis is the
appropriate methodology for an expert to use when
attempting to determine whether a particular agent caused
a particular cancer. Dr. Singer was not familiar with the
IARC publications regarding the correct methodology to
use when investigating a potential relationship between an
agent and cancer, nor did he read the publication by the
National Academy of Sciences on the topic. He was also
unfamiliar with the Bradford Hill Criteria and, as a result,
did not attempt to apply any of the the[] criteria for
5
determining causation in the Philadelphia Firefighter
cases.
WCJ 10/30/19 Decision at 9.
The WCJ also cited the following observations regarding Dr. Singer’s
testimony supporting her determination that his testimony was not persuasive:
(a) Dr. Singer was not Decedent’s treating physician
and was consulted for the purpose of litigation in this case.
(b) Dr. Singer does not engage in research pertaining to
firefighters, nor has he ever researched the etiology of
cancer generally; Dr. Singer agreed that a necessary
consideration in his evaluation of etiology of cancer,
specifically carcinogenicity, is the dose response
relationship between a given agent and a given disease.
He had no specific information on exposure in any of the
firefighter cases he reviewed. He relied solely on the
firefighter’s affidavit for the self-reported histories of
exposure. He could not say, on an individual basis,
whether a particular firefighter had any exposure to a
given carcinogen. He did not have sufficient evidence that
the firefighter was exposed to a carcinogen in a sufficient
amount to be carcinogenic to the blood stream. While it is
necessary to prove such elements to overcome a burden of
proof, his failure to consider these issues affects his lack
of persuasiveness by demonstrating a lack of foundation
for his opinion.
(c) Dr. Singer did not thoroughly consider other factors
that are or might be relevant to the causation issue, such as
Decedent’s race, diet, smoking history, and military
service.
(d) Dr. Singer relied on studies that he did not
completely read prior to forming his opinion or other
sources that were not of statistical significance. Finally,
Dr. Singer acknowledged that he is not familiar with the
Bradford Hill Criteria, which Dr. Guidotti testified are
fundamental to the most basic understanding of scientific
literature.
6
WCJ 10/30/19 Decision at 9-10.
Employer presented the deposition testimony of Tee Guidotti, M.D.,
who is board certified in internal, pulmonary, and occupational medicine, and trained
in the fields of epidemiology and toxicology. He stated that he has designed,
performed, and analyzed hundreds of epidemiologic studies, including drafting three
studies involving cancer risk in firefighters. He testified that on reviewing Dr.
Singer’s report, he was unable to state with any certainty that Dr. Singer used any
method at all in arriving at his opinions because the report did not include any
mention of what methodology was used. He pointed out several shortcomings in Dr.
Singer’s work, which spoke to the lack of methodology and lack of understanding
of general scientific principles. Dr. Guidotti noted that Dr. Singer relied on papers
that were not peer-reviewed and admitted that he was unclear regarding the
importance of statistical significance. He stated that all of the proper methodologies
include an evaluation of general causation before formulating an opinion regarding
specific causation, that the Bradford Hill Criteria are essential in determining such
general causation, and that Dr. Singer had never heard of these Criteria thereby
illustrating his unfamiliarity with mainstream epidemiology. He testified that,
despite what Dr. Singer may have said, he saw no evidence that Dr. Singer used any
methodology before forming his opinions regarding the causal effect of firefighting
in the development of cancer. WCJ 10/30/19 Decision at 8.
Employer also offered the deposition testimony of Andre Haas, M.D.,
Ph.D., a specialist in interventional pulmonary and thoracic oncology. He testified
that his practice primarily focuses on treating patients by performing diagnostic
procedures to establish a diagnosis, usually cancer, and he is primarily involved with
the differentiation and diagnosis of lung cancers. He stated that medical records
7
revealed that Decedent began smoking at age 16, and quit at age 68 in 2008, with a
40- to 50-pack per year history of tobacco use. He said that the effect of a 40-pack
per year history will increase the risk of lung cancer by 40 times. He opined that
Decedent’s tobacco exposure is the primary etiologic agent of his lung cancer and
outweighed his occupational exposure to carcinogens. He noted Decedent’s family
history of cancer revealed a genetic component placing Decedent at an increased risk
to lung carcinogens and that 85% of lung cancer is due to genetic alterations caused
by exposure to inhaled carcinogens. He testified that there is no strong data
suggesting that firefighting plays a causal role in the development of lung cancer and
opined that firefighting is not a substantial contributing factor in the development of
lung cancer. He stated that the Baris study of Philadelphia shows that firefighters
do not have a statistically significant higher incidence of lung cancer, and that
although arsenic is a lung carcinogen, a firefighter’s level of exposure to arsenic does
not cause lung cancer because firefighters are not developing lung cancer at a higher
rate than people who are not exposed to arsenic. WCJ 10/30/19 Decision at 9.
The WCJ made the following credibility determinations:
12. This [WCJ] finds the testimony of Drs. Guidotti and
Haas to be credible and persuasive regarding the generally
accepted methodologies an expert might utilize and the
epidemiology. Further, this [WCJ] finds that no expert
testimony was presented from Claimant regarding the
appropriateness of Dr. Singer’s methodology. As such,
Dr. Guidotti’s testimony that Dr. Singer did not employ a
generally accepted methodology is unrebutted. Therefore,
Dr. Singer’s testimony and opinions are incompetent as a
matter of law and are rejected in whole. Drs. Guidotti’s
and Haas’ credentials include research and examination of
the association between cancer and the job of firefighting,
including epidemiologic studies regarding same. Their
testimony is found to be more credible and persuasive than
that of Dr. Singer, who has no experience in research, has
8
never performed an epidemiologic study, and has never
examined a firefighter. Dr. Singer was unable to answer
basic questions regarding epidemiology and did not
provide an opinion with regard to general causation. Drs.
Guidotti’s and Haas’ unrebutted testimony that general
causation must be proven prior to rendering a specific
causation opinion is hereby acknowledged as fact.
Additionally, Dr. Guidotti’s testimony that there is no
causal link between lung cancer and the job of firefighting
is accepted as fact. As such, [] Employer has rebutted the
presumption with substantial competent evidence that the
cancer was not caused by firefighting. Dr. Haas’
testimony is persuasive that Decedent’s tobacco use is the
primary etiologic agency of Decedent’s lung cancer – far
outweighing his occupational exposure for the risk of
causative carcinogen[s].
WCJ 10/30/19 Decision at 10. As a result, the WCJ found as fact that Employer
“presented substantial, competent, and convincing evidence that lung cancer is not
related to firefighting in this case,” and that based on the credibility determinations
made, “Decedent’s cancer, if related to any identifiable risk factor, is related to his
multiple risk factors for the development of lung cancer, including heavy smoking
for over [30] years, and his family history of lung cancer.” Id. at 10-11.
Based on the foregoing, the WCJ reached the following conclusions:
2. The provisions of Act 46 [] require evidence of
direct exposure to a Group 1 carcinogen, as defined by the
[IARC], which caused the cancer at issue. The burden
placed on a claimant was established by the Supreme
Court in [Sladek, 195 A.3d at 208,] that Section 108(r)
“clearly imposes an initial burden of causation on the
claimant . . . [and] the claimant must produce evidence
that it is possible that the carcinogen in question caused
the type of cancer with which the claimant in afflicted.”
[(Emphasis in original and footnote omitted.)] This [WCJ]
has applied the burden established by the Court to this
case. Claimant has failed to establish that Decedent had
such exposure to any such carcinogen which could
account for his lifetime claim and death claim.
9
3. Claimant has failed to overcome her prima facie
burden under Section 301(c)(1), 301(c)(2),[2] 108(o),[3] or
2
Section 301(c)(1) and (2) states, in pertinent part:
(1) The terms “injury” and “personal injury,” as used in this [A]ct,
shall be construed to mean an injury to an employe, regardless of his
previous physical condition, except as provided under subsection
[301](f), arising in the course of his employment and related thereto,
and such disease or infection as naturally results from the injury or
is aggravated, reactivated or accelerated by the injury; and wherever
death is mentioned as a cause for compensation under this [A]ct, it
shall mean only death resulting from such injury and its resultant
effects, and occurring within three hundred weeks after the injury.
The term “injury arising in the course of his employment,” as used
in this article, . . . shall include all other injuries sustained while the
employe is actually engaged in the furtherance of the business or
affairs of the employer, whether upon the employer’s premises or
elsewhere. . . .
(2) The terms “injury,” “personal injury,” and “injury arising in the
course of his employment,” as used in this [A]ct, shall include,
unless the context clearly requires otherwise, occupational disease
as defined in section 108 of this [A]ct: Provided, That whenever
occupational disease is the basis for compensation, for disability or
death under this act, it shall apply only to disability or death resulting
from such disease and occurring within three hundred weeks after
the last date of employment in an occupation or industry to which
he was exposed to hazards of such disease: And provided further,
That if the employe’s compensable disability has occurred within
such period, his subsequent death as a result of the disease shall
likewise be compensable. . . . The employer liable for compensation
provided by . . . [S]ection 108, subsections . . . (o), . . . or (r), shall
be the employer in whose employment the employe was last
exposed for a period of not less than one year to the hazard of the
occupational disease claimed.
77 P.S. §411(c)(1), (2).
3
Section 108(o) establishes, as an occupational disease:
(Footnote continued on next page…)
10
108(r), since she has not submitted any competent medical
evidence regarding causation. For those reasons, Claimant
has failed to prove entitlement to workers’ compensation
benefits for any period or in any amount for the alleged
work injury.
4. []Employer presented substantial competent and
compelling evidence that Decedent’s lung cancer was not
related to his occupation of firefighting, and hence, even
if the presumption of Act 46 w[as] deemed to have been
triggered, it was fully rebutted by the [Employer’s]
evidence.
WCJ 10/30/19 Decision at 11. Accordingly, the WCJ issued an order denying and
dismissing Decedent’s Claim Petitions and Claimant’s Fatal Claim Petition. Id. at
12. Claimant appealed to the Board, which affirmed the WCJ’s decision, and
Claimant filed the instant petition for review of the Board’s order.4
On appeal, Claimant argues that the Board erred in affirming the WCJ’s
decision because: (1) the WCJ’s decision denying her Fatal Claim Petition is not
supported by competent evidence and is inconsistent with controlling legal authority;
and (2) the WCJ’s decision is not a “reasoned decision” under Section 422(a)5 of
Diseases of the heart and lungs, resulting in either temporary or
permanent total or partial disability or death, after four years or more
of service in firefighting for the benefit or safety of the public,
caused by extreme over-exertion in times of stress or danger or by
exposure to heat, smoke, fumes or gasses, arising directly out of the
employment of any such firemen.
77 P.S. §27.1(o).
4
Our scope of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, and whether necessary findings of fact are supported by
substantial evidence. Morocho v. Workers’ Compensation Appeal Board (Home Equity
Renovations, Inc.), 167 A.3d 855, 858 n.4 (Pa. Cmwlth. 2017).
5
Section 422(a) of the Act states that
(Footnote continued on next page…)
11
the Act. Specifically, Claimant argues that all of the uncontradicted evidence
presented confirms that the lung cancer is related to IARC Group 1 carcinogens
encountered by Decedent as a firefighter and that when Sections 108(o), 108(r), and
301(f) are applied, the record confirms that she was entitled to the rebuttable
presumption of causation. Additionally, Dr. Haas’s opinion evidence is equivocal,
and his reliance on Decedent’s smoking as the sole cause of the lung cancer is not
supported by the record, and it is incompetent to rebut the presumption under the
Act. Finally, the WCJ’s reversal of her credibility findings on remand,6 as well as
[a]ll parties to an adjudicatory proceeding are entitled to a reasoned
decision containing findings of fact and conclusions of law based
upon the evidence as a whole which clearly and concisely states and
explains the rationale for the decisions so that all can determine why
and how a particular result was reached. The workers’
compensation judge shall specify the evidence upon which the
workers’ compensation judge relies and state the reasons for
accepting it in conformity with this section. When faced with
conflicting evidence, the workers’ compensation judge must
adequately explain the reasons for rejecting or discrediting
competent evidence. Uncontroverted evidence may not be rejected
for no reason or for an irrational reason; the workers’ compensation
judge must identify that evidence and explain adequately the reasons
for its rejection. The adjudication shall provide the basis for
meaningful appellate review.
77 P.S. §834.
6
To the extent that Claimant also asserts that the WCJ erred in making her credibility
determinations regarding the medical evidence on remand, this Court has stated:
[The c]laimant also argues that the WCJ exceeded the scope
of the remand order. We disagree. A WCJ must restrict her decision
on remand to the instructions within the remand order. Teter v.
Workers’ Compensation Appeal Board (Pinnacle Health System),
886 A.2d 721 (Pa. Cmwlth. 2005); Clark v. Workers’ Compensation
Appeal Board (Wonder Bread Co.), 703 A.2d 740 (Pa. Cmwlth.
(Footnote continued on next page…)
12
1997). Importantly, however, the WCJ “is not required to produce
the same result as the initial decision . . . .” Teter, 886 A.2d at 723.
In Teter, the WCJ initially found the claimant’s experts
credible and the employer’s expert not credible and granted the
claimant’s claim petition. The employer appealed, and the Board
remanded to the WCJ with instructions to summarize the testimony
of the employer’s medical witness and explain the basis for his
credibility determinations regarding the expert medical testimony.
On remand, the WCJ found the employer’s expert credible, and he
relied on that testimony to terminate benefits as of a certain date.
The claimant then appealed, asserting that the WCJ could not
change his credibility determination on remand, as doing so it was
beyond the scope of the remand order. The Board rejected that
assertion, and this Court affirmed the Board.
We explained that the WCJ was required on remand to
review the medical testimony and state the basis for his
determinations, but a WCJ is not required to produce the same
outcome on remand, as long as he stays within the boundaries of the
remand order. Id. On remand, the WCJ in Teter reviewed and
summarized the medical experts’ testimony; made new credibility
determinations; and provided an explanation for those credibility
determinations. We held that the WCJ did not err in reaching a
different outcome because the remand order did not require the WCJ
to produce the same result as the initial decision. Id.Teter is dispositive here. . . .
Green v. Workers’ Compensation Appeal Board (US Airways), 155 A.3d 140, 148-49 (Pa. Cmwlth.
2017).
In this case, our memorandum opinion remanding the matter to the Board for further
remand to the WCJ stated, in relevant part:
In this appeal, Claimant argues that the WCJ’s conclusion
that she did not meet her initial burden and failed to establish
entitlement to the presumption is not supported by substantial
competent evidence. Additionally, Claimant argues that Employer
failed to rebut the presumption to which she was entitled.
(Footnote continued on next page…)
13
her failure to provide necessary findings on all of the evidence presented,
demonstrates that her decision is not a reasoned decision as required by Section
422(a) of the Act.
I.
Claimant first argues that the WCJ erred in failing to apply the
rebuttable presumption provided by the Act that Decedent’s lung cancer was caused
by his work as a firefighter, and in determining that Employer’s evidence rebutted
that presumption. As this Court has recently explained, in general
[t]o prevail on a claim petition, a claimant bears “the
burden of establishing the right to compensation and all of
the elements necessary to support an award.” Rife v.
Workers’ Comp[ensation] Appeal B[oard] (Whitetail Ski
Co.), 812 A.2d 750, 754 (Pa. Cmwlth. 2002). Section
301(a) of the Act, 77 P.S. §431, provides that “[e]very
employer shall be liable for compensation for personal
injury to . . . each employe, by an injury in the course of
his employment . . . .” Section 301(c)(2) of the Act, 77
In assessing the record evidence in this case, the Board and
the WCJ relied on our analysis in [City of Philadelphia Fire
Department v. Workers’ Compensation Appeal Board (Sladek), 144
A.3d 1011 (Pa. Cmwlth. 2016), rev’d, Sladek, 195 A.3d 197], which
is no longer controlling. Consequently, we are compelled to vacate
and remand the Board’s decision. Because the record includes
evidence presented by both parties that is relevant under the
Supreme Court’s analysis in [Sladek], the Board is to remand the
matter to the WCJ for new findings and conclusions consistent
with that opinion.
Regan, slip op. at 14-15 (emphasis added and footnote omitted). As extensively outlined above,
the WCJ made new findings and conclusions based upon an extensive and exhaustive review of
the evidence presented by both parties in this matter. Thus, the WCJ’s findings in the present
matter are clearly within the boundaries of our remand order so that any claimed error in this regard
is without merit regardless of whether the WCJ reached the same conclusions based on those new
findings. Green.
14
P.S. §411(2), defines the phrase “injury arising in the
course of his employment” to include an “occupational
disease,” as that term is defined under Section 108 of the
Act. Thus, an injury satisfying the definition of
“occupational disease” under Section 108 is a
compensable injury under the Act. To assist claimants
who assert they suffer from an occupational disease in
demonstrating the elements necessary to support an award,
the Act contains a generally applicable evidentiary
presumption regarding the cause of a claimant’s
occupational disease. Section 301(e) of the Act, [added by
the Act of October 17, 1972, P.L. 930,] 77 P.S. §413,
provides[]:
[that i]f it be shown that the employe, at or
immediately before the date of disability, was
employed in any occupation . . . 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.
The definition of “occupational disease” was amended by
[Act 46] to add Section 108(r), which expanded the term
“occupational disease” to include “[c]ancer suffered by a
firefighter which is caused by exposure to a known
carcinogen which is recognized as a Group 1 carcinogen
by the [IARC].” 77 P.S. §27.1(r). Act 46 also added
Section 301(f) of the Act, 77 P.S. §414, which imposes
additional conditions on the presumption of Section 301(e)
as it relates to the occupational disease of cancer suffered
by a firefighter. Under Section 301(f), a firefighter is
entitled to benefits for the occupational disease of cancer,
as defined in Section 108(r) of the Act, provided the
firefighter can show: (1) employment for four or more
years in continuous firefighting duties; (2) direct exposure
to an IARC Group 1 carcinogen; and (3) the firefighter
passed a physical examination prior to engaging in
firefighting duties that did not reveal any evidence of
cancer. 77 P.S. §414. Once the claimant shows these
elements and the presumption of causation applies, the
employer can rebut the presumption through “substantial
15
competent evidence that shows that the firefighter’s cancer
was not caused by the occupation of firefighting.” Id.
Importantly, when evaluating whether a claimant
has met his burden under the Act, “[t]he WCJ is the
ultimate fact finder and has complete authority for making
all credibility” and evidentiary weight determinations.
Rife, 812 A.2d at 755. It is well[]settled that a “WCJ may
reject the testimony of any witness in whole or in part,
even if that testimony is uncontradicted.” Hoffmaster v.
Workers’ Comp[ensation] Appeal B[oard] (Senco
Prod[ucts], Inc.), 721 A.2d 1152, 1156 (Pa. Cmwlth.
1998). Where the WCJ is required to assess the credibility
of deposition testimony, the WCJ must articulate objective
bases for crediting one witness’s deposition testimony
over another witness’s deposition testimony. Daniels v.
Workers’ Comp[ensation] Appeal B[oard] (Tristate
Transp[ort]), 828 A.2d 1043, 1053-54 (Pa. 2003).
Malone v. Workers’ Compensation Appeal Board (City of Philadelphia) (Pa.
Cmwlth., No. 22 C.D. 2020, filed January 6, 2021), slip op. at 15-16 (footnotes
omitted).7
Regarding the statutory presumption under Section 108(r), this Court
further observed:
In [Sladek], the [Supreme] Court explained that the Act
divides litigation by firefighters for cancer claims into
“discrete stages.” [195 A.3d] at 207. First, the claimant
must carry an initial burden under Section 108(r). This
initial burden, which concerns general causation only, is
not a heavy one, and the claimant need only “establish a
general causative link between the claimant’s type of
cancer and a Group 1 carcinogen.” Id. at 208. “In other
words, the claimant must produce evidence that it is
possible that the carcinogen in question caused the type of
cancer with which the claimant is afflicted.” Id. Next, the
7
See Pa. R.A.P. 126(b) (“As used in this rule, ‘non-precedential decision’ refers to . . . an
unreported memorandum opinion of the Commonwealth Court filed after January 15, 2008. []
Non-precedential decisions . . . may be cited for their persuasive value.”).
16
claimant must show that the claimant meets the other three
conditions to the presumption in Section 301(f) of the Act,
i.e., four or more years of service, direct exposure to an
IARC Group 1 carcinogen, and a cancer-free physical
exam prior to engaging in firefighting work. Id. at 207. If
the claimant makes these showings, the claimant benefits
from the presumption in Section 301(f), and the burden
shifts to the employer to prove that the claimant’s cancer
was caused by something other than the claimant’s work
as a firefighter. Id. The Court noted that “epidemiological
evidence is clearly relevant and useful in” evaluating
general causation at the initial burden stage. Id. at 208.
The Court therefore directed the Board on remand to
determine whether Dr. Singer’s testimony satisfied the
standard set forth in Frye v. United States, 293 F. 1013(D.C. Cir. 1923), and stated that if it did not, the claimant
could not carry his initial burden as to general causation
under Section 108(r) of the Act. [Sladek], 195 A.3d at 210.
Crucially, for the instant case, the Court also noted that,
even if Dr. Singer’s testimony satisfied the Frye standard,
the fact finder was free to find “that Dr. Guidotti’s opinion
is more credible on the question of general causation.” Id.
In that situation, “the epidemiological evidence offered by
[Employer] through Dr. Guidotti would carry the day
without the burden of proof . . . ever shifting to
[Employer] to prove specific causation.” Id.
Malone, slip op. at 18-19 (footnotes omitted).
As in this case, in Malone, the claimant “insist[ed] that he carried his
initial burden with respect to general causation, thus demonstrating that he suffers
from an occupational disease,” and he presented “Dr. Singer’s uncontradicted
testimony as to general causation, including Dr. Singer’s direct opinion that certain
IARC Group 1 carcinogens can cause [his] cancer.” Slip op. at 20. Likewise, as in
this case, “[w]e disagree with [c]laimant’s characterization of his evidence as
uncontradicted” because “Dr. Guidotti directly testified that Dr. Singer’s method for
reviewing the various epidemiologic studies Dr. Singer cited was not a sufficient
17
method for determining general causation, thereby challenging Dr. Singer’s general
causation opinion.” Id. at 21.
As outlined above, in this case, the WCJ specifically found that “Dr.
Guidotti’s testimony that Dr. Singer did not employ a generally accepted
methodology is unrebutted”; that “[t]herefore, Dr. Singer’s testimony and opinions
are incompetent as a matter of law and are rejected in whole”; that Dr. Guidotti’s
“unrebutted testimony that general causation must be proven prior to rendering a
specific causation opinion is hereby acknowledged as fact”; and that “Dr. Guidotti’s
testimony that there is no causal link between lung cancer and the job of firefighting
is accepted as fact.” WCJ 10/30/19 Decision at 10. Because the WCJ accepted Dr.
Guidotti’s testimony regarding general causation over that of Dr. Singer, Claimant
did not carry his initial burden as to general causation under Section 108(r) of the
Act to invoke the presumption in Section 301(f), and the burden of proof never
shifted to Employer to prove specific causation as to Decedent’s fatal lung cancer.
Accordingly, contrary to Claimant’s assertions, the Board did not err in affirming
the WCJ’s decision denying the Claim and Fatal Claim petitions.8
8
Likewise, as we determined in Malone:
Here, unlike in [Sladek] and Deloatch [v. Workers’
Compensation Appeal Board (City of Philadelphia), 224 A.3d 432(Pa. Cmwlth. 2020)], none of the testimony credited by the WCJ,
i.e., the testimony of [the c]laimant, Dr. Weaver, Dr. Guidotti, or Dr.
Stanford, established that any IARC Group 1 carcinogen can cause
prostate cancer. As we have discussed, the WCJ’s decision not to
credit Dr. Singer’s testimony was an exercise of discretion
accompanied by a reasoned explanation, and it must, therefore,
stand. We conclude that [the c]laimant has not met his initial burden
of demonstrating general causation under Section 108(r) of the Act,
and he has not established that his cancer is an occupational disease
under that section. Because [the c]laimant did not meet this initial
(Footnote continued on next page…)
18
II.
Finally, regarding the reasoned decision requirements of the Act, we
have previously explained:
The requirement that the WCJ adequately explain his
reasons for accepting or rejecting evidence protects the
parties to a decision by ensuring that a legally erroneous
basis for a finding will not lie undiscovered. For instance,
if a WCJ rejects evidence based on an erroneous
conclusion that testimony is equivocal, or that the
evidence is hearsay or for some other reason incompetent,
such legal error will be evident and can be corrected on
appeal.
However, the WCJ’s prerogative to determine the
credibility of witnesses and the weight to be accorded
evidence has not been diminished by the amendments to
Section 422(a). Such determinations are binding on appeal
unless made arbitrarily and capriciously.
PEC Contracting Engineers v. Workers’ Compensation Appeal Board (Hutchison),
717 A.2d 1086, 1088-89 (Pa. Cmwlth. 1998). Here, the WCJ’s findings reflect that
she reviewed the evidence of record and that her determination was based in part on
the inferiority of Dr. Singer’s credentials and methodology, and the superiority of
the same with respect to Dr. Guidotti and Dr. Haas. WCJ’s 10/30/19 Decision at 9-
burden, his demonstration of the other factors under Section 301(f)
of the Act does not entitle him to the presumption found in that
section, and the Board did not err in declining to apply that
presumption. See [Sladek], 195 A.3d at 207; Deloatch, 224 A.3d at
440. Accordingly, the burden never shifted to [the e]mployer to
rebut the presumption that [the c]laimant’s cancer was caused by his
work. [Sladek], 195 A.3d at 210.
Slip op. at 22 (footnote omitted). Thus, even if it is assumed that Claimant is correct that Dr.
Haas’s testimony is not competent regarding the specific causation of Decedent’s fatal lung cancer,
it was unnecessary for Employer to prove specific causation because, as outlined above, Claimant
failed to demonstrate general causation in the first instance to invoke the statutory presumption.
19
11. Thus, the WCJ’s decision reflects that her determination was not made
arbitrarily or capriciously.
Moreover, in addressing a reasoned decision challenge to the WCJ’s
findings, our scope of review remains limited to determining whether constitutional
rights were violated, whether an error of law was committed, or whether the WCJ’s
findings are supported by substantial evidence. 717 A.2d at 1089. In this instance,
the WCJ’s comments concerning the competing medical evidence presented by the
parties are supported by the record and reflect no legal error.
Because the WCJ’s credibility determinations were not made arbitrarily
and capriciously and her findings are supported by substantial evidence, the WCJ’s
decision cannot be disturbed on appeal. Id. Further, we conclude that the WCJ’s
decision sets forth an adequate explanation of her reasons for accepting and rejecting
evidence, and therefore satisfies the reasoned decision requirements of Section
422(a) of the Act. See id. at 1089 (noting that Section 422(a) does not require
“adequate reasons,” but an adequate explanation for those reasons, in order for
appellate review to be meaningful).
Accordingly, the Board’s order is affirmed.
MICHAEL H. WOJCIK, Judge
20
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Vincent Regan, :
:
Petitioner :
:
v. : No. 1277 C.D. 2020
:
City of Philadelphia (Workers’ :
Compensation Appeal Board), :
:
Respondent :
ORDER
AND NOW, this 13th day of December, 2021, the order of the Workers’
Compensation Appeal Board dated December 9, 2020, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge