W. Deloatch v. WCAB (City of Philadelphia) ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Wayne Deloatch, :
Petitioner :
:
v. : No. 1684 C.D. 2018
: Argued: November 14, 2019
Workers’ Compensation Appeal :
Board (City of Philadelphia), :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION BY JUDGE BROBSON FILED: January 3, 2020
Wayne Deloatch (Claimant) petitions for review of an order of the
Workers’ Compensation Appeal Board (Board), dated December 11, 2018. The
Board reversed the decision and order of a Workers’ Compensation Judge (WCJ),
which granted Claimant’s claim petition for benefits under Sections 108(r)
and 301(f) of the Workers’ Compensation Act (Act).1 The sole issue before this
Court is whether Claimant has established that he developed a compensable
occupational disease in the form of lung cancer as provided by Sections 108(r)
and 301(f) of the Act. For the reasons that follow, we reverse.
I. BACKGROUND
Claimant worked as a firefighter for the City of Philadelphia
(Employer) from December 12, 1988, until he retired on November 1, 2008.
1
Act of June 2, 1915, P.L. 736, as amended, added by the Act of October 17, 1972, P.L.
930 & the Act of July 27, 2011, P.L. 251, 77 P.S. §§ 27.1(r), 414, respectively.
(Certified Record (C.R.), Item No. 6 at 3.) In 2011, Daniel Stermand, M.D.,
diagnosed Claimant with lung cancer, for which Claimant later received treatment.
(Reproduced Record (R.R.) at 20-22, 88.)2
On December 12, 2012, Claimant filed a claim petition alleging that he
suffered from non-small cell lung cancer resulting from direct exposure to IARC3
Group 1 carcinogens while working as a firefighter with Employer. (C.R., Item
No. 2 at 2.) Claimant sought payment of medical bills related to treatment of his
non-small cell lung cancer. (Id.) Employer, thereafter, filed an answer denying all
allegations in the claim petition. (C.R., Item No. 4.) In support of his claim petition,
Claimant provided his own deposition testimony, a medical report from Virginia
Weaver, M.D., as well as a medical report from and deposition testimony of
Barry L. Singer, M.D. In opposition to Claimant’s claim petition, Employer
presented the deposition testimony of Tee Guidotti, M.D., M.P.H., as well as a
medical report from Howard Sandler, M.D.
A. Summary of Evidence Presented
1. Claimant’s Deposition Testimony
Claimant testified at a deposition on January 29, 2013. According to
Claimant, he worked for Employer as a firefighter for approximately twenty years.
(R.R. at 6.) Employer gave Claimant a physical examination prior to hiring him. As
a result of the examination, Employer did not place any restrictions on Claimant’s
ability to work. (Id.) Further, Claimant was never diagnosed with cancer at any
2
The reproduced record in this matter follows a numbering format of “R0001, R0002,”
etc., and is not in compliance with Pennsylvania Rule of Appellate Procedure 2173, which directs
the pages of the reproduced record to be numbered using Arabic numerals followed by a lower
case letter “a”—i.e., “1a, 2a, 3a,” etc. When citing to the page numbers of the reproduced record
herein we shall omit the “R” and any zeros preceding the page number.
3
IARC refers to the International Agency for Research on Cancer.
2
point during his employment. (Id. at 7.) Over the course of his career, Claimant
worked at three different fire stations. None of these stations contained a diesel fuel
emissions capture system. (Id. at 10.) At the beginning and end of each shift,
firefighters were required to start the fire engine trucks and leave them running for
approximately 15-20 minutes. (Id. at 10-11.) Claimant, therefore, saw and smelled
diesel fuel emissions at each shift during the twenty years of his employment. (Id.
at 10.) The ceilings and walls in each fire station were covered with soot and grime.
(Id. at 12.)
During Claimant’s firefighting career, he fought approximately
200-300 fires, including building, house, car, dumpster, trash, grass, and field fires,
which exposed him to smoke. (Id. at 13, 14-15, 18.) Claimant sometimes wore a
self-contained breathing apparatus (SCBA) when responding to a fire. (Id. at 16.)
SCBAs provide the wearer with clean air for approximately 20-30 minutes
depending on the individual and the amount of work involved. (Id.) According to
Claimant, Employer did not fit-test the SCBAs. (Id.) Claimant did not use the
SCBA during exterior firefighting—i.e., outdoor firefighting—or overhaul, which
entailed “ripping of walls, ceilings, searching for any hidden fire and extinguishing
that if it’s visible.” (Id. at 15, 17.) After exposure to each fire incident, Claimant’s
body would be coated in soot, and Claimant would often find soot in his nasal
secretions up to a week after exposure. (Id. at 19.) Claimant further testified that he
stopped smoking cigarettes in 2011, but had a 30 to 35-year-long smoking history.
(Id. at 25.) During that period, Claimant recalled smoking only one pack of
cigarettes per week. (Id.) Firefighters were permitted to smoke in the fire stations,
and Claimant worked with smokers during his career as a firefighter. (Id. at 26.)
3
2. Medical Report from Virginia Weaver, M.D.
Claimant submitted a medical report from Dr. Weaver, who is board
certified in internal medicine and occupational medicine. (Id. at 186.) Dr. Weaver
opined that firefighters are exposed to IARC 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 179.) She further stated that although firefighters
use protective equipment, the protection is incomplete because firefighters routinely
observe black soot on their skin and in nasal discharges after major fires. (Id.)
Further, until recently, most firefighters routinely removed their respiratory
protection during the overhaul process. (Id.) Dr. Weaver did not provide any
specific testimony relating to the causal relationship between a firefighter’s exposure
to certain IARC Group 1 carcinogens and the development of lung cancer.
3. Deposition Testimony of Barry L. Singer, M.D.
Claimant submitted the deposition testimony of Dr. Singer, who is
board certified in internal medicine, hematology, and oncology. (Id. at 92.)
Dr. Singer is not a specialist in occupational medicine, toxicology, or epidemiology.
(Id. at 251-54.) Dr. Singer’s practice is mainly patient care, and he does not engage
in primary research nor has he ever published any materials on the etiology of cancer.
(Id. at 256.) Since 2008, Dr. Singer has been reviewing cases involving workers’
compensation claims for cancer. (Id. at 249.) In evaluating cases involving
firefighters, Dr. Singer reviews affidavits concerning each firefighter’s exposures
and medical and family history. (Id. at 249-50.) Dr. Singer has not performed
physical evaluations on any of the firefighters for whom he was asked to provide
medical opinions; however, by reviewing the IARC monographs, academic
materials concerning firefighters’ exposure to carcinogens, medical records, and
family history, Dr. Singer has been able to provide opinions about the cause of each
4
firefighter’s cancer. (Id. at 250.) Dr. Singer’s methodology for forming his opinion
in these cases is called “differential diagnosis,” which requires that Dr. Singer list
all causal possibilities for a patient’s diagnosis, rule out certain possibilities, and
eventually arrive at a final or most probable diagnosis. (Id. at 283.) Differential
diagnosis, Dr. Singer opined, is the only viable method for evaluating firefighter
cancer cases. (Id. at 283-84.) According to Dr. Singer, firefighters are exposed to
numerous IARC Group 1 carcinogens, such as arsenic, which is found in diesel
exhaust and smoke. (Id. at 285.)
Dr. Singer admitted that there are carcinogens in cigarette smoke that
most likely cause changes in lung tissue, resulting in formation of cancerous cells.
(Id. at 310.) In fact, Dr. Singer agreed that approximately sixty of the one hundred
and twenty carcinogens present in IARC’s Group 1 carcinogen list are found in
cigarette smoke. (Id. at 368.) Dr. Singer also agreed that an individual who smokes
eighty packs of cigarettes per year has a 400-fold increase in the risk of lung cancer,
as well as cancer affecting the head and neck. (Id. at 310.) With respect to
firefighters’ exposure to carcinogens during employment, Dr. Singer agreed with the
IARC’s conclusion that (1) less than half of all responses to fires are, in fact,
fire-related; (2) of those responses that are fire-related, less than half involve
observable flames; and (3) a very small percentage of firefighters’ time—i.e., one to
two percent—is spent fighting fires. (Id. at 366-67.) Dr. Singer also agreed that
SCBAs are designed to reduce exposure to particles by one thousand percent. (Id.
at 368.)
4. Medical Report from Barry L. Singer, M.D.
Claimant also submitted a medical report from Dr. Singer. In that
report, Dr. Singer opined that firefighters are routinely exposed to “many known or
suspected lung carcinogens.” (Id. at 89.) Dr. Singer discussed studies that found an
5
increased risk for lung cancer in the firefighting profession. (Id.) Thereafter, Dr.
Singer concluded that, based on Claimant’s medical records, Claimant’s exposure to
carcinogens while working for Employer was a “substantial contributing factor in
the development of his lung cancer.” (Id.)
5. Deposition Testimony of Tee Guidotti, M.D., M.P.H.
In opposition, Employer submitted the deposition testimony of Dr.
Guidotti, who is board certified in internal medicine, pulmonary medicine, and
occupational medicine. (Id. at 1109.) Dr. Guidotti also has a non-medical diploma
in toxicology, is trained in epidemiology, and has investigated the potential
relationships between occupational and environmental exposures associated with
firefighting and cancer. (Id. at 917-18, 922-23.) Dr. Guidotti reviewed a subset of
Dr. Singer’s reports involving firefighters and some of his deposition testimony in
firefighter cancer cases in order to determine the appropriateness of Dr. Singer’s
methodology and the validity of his opinions. (Id. at 927-28.) With respect to
specific firefighters, their diagnoses, or cancer exposure, Dr. Guidotti offered no
opinion. (Id. at 1055-56.)
Concerning Dr. Singer’s methodology, Dr. Guidotti opined that he
could not discern what, if any, methodology Dr. Singer used to form his opinions.
(Id. at 929.) In response to a question on whether Dr. Singer’s method of drawing
inferences from the volume of support for, as opposed to against, a proposition was
an appropriate method for determining the sufficiency of epidemiological studies,
Dr. Guidotti answered in the negative. (Id. at 933.) Dr. Guidotti also opined that
Dr. Singer had no expertise on how general causation is proved. (Id.) Further, where
Dr. Singer’s use of meta-analyses is concerned, Dr. Guidotti opined that one should
not rely on meta-analyses to reach a conclusion on cause and effect because
meta-analyses do not summarize all the studies addressed in any meaningful sense
6
nor do they address the nuance or bias of any given study. (Id. at 937-38.)
Dr. Guidotti agreed that the IARC is the authoritative world body in recognizing
carcinogens and that the IARC has characterized firefighting as possibly
carcinogenic. (Id. at 983, 1012.) Dr. Guidotti opined, however, that smoking
cigarettes may add to the risk of exposure to carcinogens that are similar to those
firefighters could be exposed to during employment. (Id. at 991-92.)
6. Medical Report from Howard Sandler, M.D.
Employer submitted a medical report of Dr. Sandler, a licensed
physician specializing in occupational and environmental medicine. (Id. at 881.)
Dr. Sandler noted that the IARC has found sufficient evidence of a causal link
between diesel exhaust and lung cancer. (Id. at 891.) Dr. Sandler opined, however,
that Dr. Singer provided “no scientifically-reliable methodology” that could have
led Dr. Singer to conclude that there is a causal link between firefighting and lung
cancer. (Id.) With respect to Claimant’s smoking history, Dr. Sandler noted that in
one instance Claimant’s records indicate that he smoked cigarettes for forty-five
years. (Id. at 883.) Claimant’s medical records also indicate that Claimant reduced
his smoking habit from a peak of one pack per day. (Id. at 884.) These medical
records stand in contrast to Claimant’s testimony that he smoked cigarettes for
approximately 30-35 years and only smoked one pack per week, and the records
indicate a significantly higher level of smoking. (Id.) With respect to Claimant’s
specific case, Dr. Sandler opined that epidemiologic evidence does not support the
conclusion that exposure to arsenic, asbestos, benzene, and other IARC Group 1
carcinogens was a substantial factor in causing Claimant’s lung cancer. (Id. at 894.)
Accordingly, Dr. Sandler opined that Claimant’s lung cancer was not caused by
occupational exposure to carcinogens, but most likely by Claimant’s personal risk
factors—specifically, his smoking history. (Id. at 893-94.)
7
B. First WCJ Decision
By decision and order circulated on October 31, 2014 (First WCJ
Decision), the WCJ dismissed the claim petition. (C.R., Item No. 6.) In so doing,
the WCJ rejected Claimant’s testimony regarding his history of cigarette smoking as
less than credible but otherwise found Claimant’s testimony credible but not
persuasive or competent as to the medical issue of causation. (Id., Finding of Fact
(F.F.) No. 16.) The WCJ also accepted that Claimant was exposed to IARC Group 1
carcinogens in the course of his career as a firefighter and paramedic and noted that
Employer did not present evidence to the contrary. (Id., F.F. No. 18.) The WCJ,
however, found that Claimant is not entitled to the presumption of Section 301(f) of
the Act that his lung cancer arose during the course of his employment as a
firefighter. (Id., F.F. No. 19.) Rather, Claimant’s claim was subject to general
causation principles. (Id., F.F. No. 20.) As to the credibility of the other witnesses,
the WCJ issued the following findings of fact:
21. This Judge rejects as neither credible nor competent
Dr. Singer’s opinion that exposure to Group [1]
carcinogens in the course of his employment as a
firefighter was a substantial contributing factor in causing
Claimant’s non-small cell lung cancer. In so finding, this
Judge notes the following:
....
d. Dr. Singer conceded that the number one cause
of lung cancer is cigarette smoking.
e. Dr. Singer has never designed a study protocol,
is not engaged in primary cancer research, and has
never published on the etiology of cancer or on
firefighters.
f. Dr. Singer is not an expert in occupational disease
medicine, toxicology or epidemiology. He is an
oncologist whose career focus has been the
detection and treatment of cancer, not investigating
the cause of cancer.
8
g. He did not know the methodologies to use in
attempting to link a given exposure to a given
cancer, used by the [Environmental Protection
Agency], the Veterans Administration, the IARC[,]
the National Academy of Sciences, the American
Medical Association and by the Federal Courts. He
later reviewed the methodology for providing an
opinion set forth in Table 3-2 of the American
Medical Association’s Guides to the Evaluation of
Causation and testified that his methodology
followed the steps set forth in that document. This
WCJ finds that this testimony was not persuasive,
as he acknowledged that he was not aware of the
existence of the American Medical Association’s
Guides to the Evaluation of Causation prior to the
December 21, 2012 deposition and that these
excerpts were provided to him in between
December 21, 2012[,] and January 14, 2013.
h. He was not able to cite authority for his assertion
that the differential diagnosis methodology is the
accepted methodology for determining a potential
causative relationship between a given agent and a
given cancer.
....
22. This Judge accepts the opinions of Dr. Sandler and Dr.
Guidotti as more credible, competent, and persuasive than
the opinion of Dr. [Singer] for the following reasons:
....
d. The discussion by Dr. Sandler and Dr. Guidotti
with respect to causation determinations and
methodology are consistent one with the other.
Both physicians articulated a detailed familiarity
with published epidemiologic data concerning
cancer risks in firefighters.
(Id., F.F. Nos. 21-22.) Based on the above, the WCJ found “that the credible,
competent evidence of record fails to establish that Claimant’s non-small cell lung
cancer was caused by his work as a firefighter.” (Id., F.F. No. 23.)
9
C. First Board Decision
Claimant appealed the First WCJ Decision to the Board, which reversed
and remanded.4 (C.R., Item No. 9.) In coming to its decision to reverse the WCJ’s
decision, the Board concluded that Claimant established entitlement to the statutory
presumption and that Employer failed to provide evidence sufficient to rebut the
presumption. (Id. at 10.) The Board remanded the matter 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. (Id. at 11.)
D. Second WCJ Decision
On remand, the WCJ granted Claimant’s claim petition and awarded
medical benefits—as directed by the Board—and issued new findings of fact and
conclusions of law regarding only the amount of the award and the subrogation lien.
(C.R., Item No. 13.) The WCJ included a sentence in the remand decision (Second
WCJ Decision) incorporating a majority of the findings of fact set forth in the First
WCJ Decision, which included summaries of the testimony and medical reports
presented, along with credibility determinations relating to causation. (Id. at 4, F.F.
No. 1.) The WCJ also issued the following new finding of fact concerning the
Board’s discussion of the medical evidence presented:
2. With respect to credibility determinations
regarding the medical evidence of record in the
October 31, 2014 Decision, this Judge notes that the
[Board] determined that Dr. Sandler’s opinion “lacks the
certainty necessary to overcome the presumption that
Claimant’s cancer was caused by firefighting. . . . [T]he
burden never shifted back to Claimant, and any
4
We note that the Board issued its first decision prior to this Court’s decision in City of
Philadelphia Fire Department v. Workers’ Compensation Appeal Board (Sladek), 144 A.3d 1011
(Pa. Cmwlth. 2016) (en banc) (Sladek I), and our Supreme Court’s decision reversing and
remanding Sladek I in City of Philadelphia Fire Department v. Workers’ Compensation Appeal
Board (Sladek), 195 A.3d 197 (Pa. 2018) (Sladek II).
10
shortcomings, found by the WCJ, in Dr. Singer’s
testimony on the issue of causation do not impact
Claimant’s entitlement to relief.” (WCAB Decision,
p. 11 of 12[.])
(Second WCJ Decision at 4, F.F. No. 2.) The WCJ concluded that Claimant met his
burden to prove that he had a compensable injury under Sections 108(r) and 301(f)
of the Act. (Id. at 5.) Employer appealed the Second WCJ Decision to the Board,
which reversed based on its application of Sladek II.
II. DISCUSSION
On appeal,5 Claimant argues that the Board committed an error of law
by reversing the Second WCJ Decision. Specifically, Claimant contends that he was
entitled to the statutory presumption under Section 301(f) of the Act and that
Employer failed to rebut that presumption. Employer responds by arguing that the
Board correctly concluded that Claimant did not establish that he suffered from an
occupational disease under Section 108(r) of the Act and, therefore, failed to
establish his entitlement to the evidentiary presumption provided by
Section 301(f) of the Act.
A. Occupational Disease Claims Under the Act6
1. Relevant Statutory Provisions
Section 301(c)(2) of the Act, as amended, 77 P.S. § 411(2), provides
that a compensable “injury” includes any “occupational disease as defined in
[S]ection 108 of this [A]ct.” In turn, Section 108 of the Act identifies a number of
occupational diseases, including cancer, which is a compensable injury when it is
5
This Court’s review is limited to a determination of whether an error of law was
committed, whether findings of fact are supported by substantial evidence, or whether
constitutional rights were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§ 704.
6
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
11
“caused by exposure to a known carcinogen which is recognized as a
Group 1 carcinogen by [IARC].”
Section 301(f) of the Act establishes a special evidentiary presumption
that applies when the employee is a firefighter who suffers from an occupational
disease in the form of cancer. Section 301(f) provides, in relevant 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) [of the Act] 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. . . . 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) [of the Act] 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.
77 P.S. § 414 (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, he may take advantage
12
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.
2. Sladek II
In Sladek II, our Supreme Court expounded upon the respective burdens
of proof in disputes concerning whether a claimant has a compensable occupational
disease under Sections 108(r) and 301(f) of the Act. Pursuant to the Supreme Court’s
decision in Sladek II, a claimant must first prove that he suffers from an occupational
disease under Section 108(r) of the Act. In order to meet this burden, the claimant
must “establish a general causative link between the claimant’s type of cancer and
a Group 1 carcinogen.” Sladek II, 195 A.3d at 208 (emphasis added). “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.
(emphasis in original). In order to establish this general causative link, the claimant
13
may submit epidemiological evidence7 in support of his claims. If, however, the
claimant introduces an “expert opinion [that] does not satisfy the Frye[8] standard,
[the claimant] cannot carry his evidentiary burden of proof to establish an
‘occupational disease’ under Section 108(r)” of the Act. Sladek II, 195 A.3d at 210.
The employer may submit its own epidemiological evidence to counteract the
claimant’s evidence. Id. (holding that if employer submits evidence which Board
concludes is more credible on general causation, that evidence “carr[ies] the day
without the burden of proof with respect to the evidentiary presumption ever shifting
to the [employer] to prove specific causation”). Provided that the claimant
demonstrates, among other requirements, the required general causative link, the
claimant is entitled to the statutory presumption provided by Section 301(f) of the
Act.
The burden then shifts to the employer to rebut the presumption. To do
so, the employer must identify “(1) the specific causative agent of claimant’s cancer,
and [prove that] (2) exposure to that causative agent did not occur as a result of his
or her employment as a firefighter.” Sladek II, 195 A.3d at 209. “In other words,
the language of Section 301(f) [of the Act] requires the employer to produce a
medical opinion regarding the specific, non-firefighting related cause of claimant’s
cancer.” Id. The employer may not use generalized epidemiological evidence to
rebut the statutory presumption. Id. at 210.
7
“Epidemiology deals with, inter alia, the identification of potentially causative
associations in various populations between possible causative agents and the resulting incidence
of particular diseases and seeks to generalize those results.” Sladek II, 195 A.3d at 208.
8
Frye v. U.S., 293 F. 1013, 1014 (D.C. Cir. 1923) (“[T]he thing from which the deduction
is made must be sufficiently established to have gained general acceptance in the particular field
in which it belongs.”).
14
B. Application to This Matter
Applying the foregoing, to receive the statutory presumption, Claimant
had to prove first that his lung cancer is an occupational disease within the meaning
of Section 108(r) of the Act. The WCJ rejected Dr. Singer’s opinion as not credible
or competent as to causation; however, the WCJ accepted that Claimant was exposed
to IARC Group 1 carcinogens in the course of his employment, including, inter alia,
diesel fumes/exhaust. (First WCJ Decision at 17, F.F. No. 18.) Further, the WCJ
accepted Dr. Sandler’s opinion that the IARC has found sufficient evidence of a
causal link between diesel exhaust, which is an IARC Group 1 carcinogen, and lung
cancer. (Id. at 12, F.F. No. 7j; R.R. at 891.) Employer has not submitted evidence
establishing that the Group 1 carcinogens to which Claimant was exposed as a
firefighter do not cause lung cancer. Claimant has, therefore, established that he has
an occupational disease pursuant to Section 27.1(r) of the Act.
Because Claimant has established that he has an occupational disease
and has met the other requirements of Section 301(f) of the Act,9 Claimant is entitled
to the statutory presumption. Accordingly, contrary to the Board’s conclusion in its
second decision, the burden shifted to Employer to identify “(1) the specific
causative agent of [C]laimant’s cancer, and [prove that] (2) exposure to that
causative agent did not occur as a result of his . . . employment as a firefighter.”
Sladek II, 195 A.3d at 209. Employer has attempted to rebut the presumption
through Dr. Guidotti’s deposition testimony and Dr. Sandler’s medical report.
Dr. Guidotti’s opinion only rejected the notion that Claimant’s cancer was caused
9
Both parties have stipulated that Claimant has served continuously as a firefighter for four
years or more and passed a physical examination before engaging in firefighting duties, which
revealed no evidence of cancer. Further, the WCJ has accepted that Claimant had direct exposure
to a Group 1 carcinogen. Lastly, there is no dispute that Claimant filed his claim petition
within 300 weeks of his last day of employment.
15
by any exposures to carcinogens as a result of firefighting—he did not offer an
opinion concerning the specific cause of Claimant’s cancer. Dr. Guidotti’s opinion
is, therefore, insufficient to rebut the statutory presumption under Sladek II.
Dr. Sandler’s opinion also rejected the notion that Claimant’s cancer
was caused by exposures to carcinogens during firefighting, concluding, instead, that
“[Claimant’s] diagnosed lung cancer is most likely caused by his significant personal
risk factors, the most important being his personal smoking history.” (R.R. at 894
(emphasis added).) Dr. Sandler’s opinion lacks the level of certainty required by
law to establish a causal connection between Claimant’s nonemployment-related
risk factors and his cancer. See Lewis v. Workmen’s Comp. Appeal Bd. (Pittsburgh
Bd. of Educ.), 498 A.2d 800, 802 (Pa. 1985) (“Where medical testimony is necessary
to establish a causal connection, the medical witness must testify, not that the injury
or condition might have or possibly came from the assigned cause, but that in his
professional opinion the result in question did come from the assigned cause.”).10
Consequently, Dr. Sandler’s opinion is also insufficient to rebut the evidentiary
presumption.
III. CONCLUSION
For the reasons set forth above, Claimant established that he was
entitled to the statutory presumption under Section 301(f) of the Act, being that his
lung cancer was caused by the occupation of firefighting. Employer failed to rebut
the statutory presumption with substantial competent evidence that Claimant’s
10
Indeed, in reversing the First WCJ Decision and awarding benefits to Claimant, the
Board reached this very same conclusion: “Dr. Sandler’s opinion, when reviewed as a whole,
lacks the certainty necessary to overcome the presumption that Claimant’s cancer was caused by
firefighting.” (C.R., Item No. 9, at 11.) It is not entirely clear to the Court why the Board reached
a contrary conclusion in its review of the Second WCJ Decision following remand. To put it
simply, the Board got it right the first time.
16
cancer was caused by something other than his workplace exposure to IARC
Group 1 carcinogens linked to lung cancer. Accordingly, Claimant is entitled to
benefits under the Act, and we reverse the Board’s December 11, 2018 order to the
contrary.
P. KEVIN BROBSON, Judge
Judge Fizzano Cannon did not participate in the decision of this case.
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Wayne Deloatch, :
Petitioner :
:
v. : No. 1684 C.D. 2018
:
Workers’ Compensation Appeal :
Board (City of Philadelphia), :
Respondent :
ORDER
AND NOW, this 3rd day of January, 2020, the order of the Workers’
Compensation Appeal Board, dated December 11, 2018, is hereby REVERSED.
P. KEVIN BROBSON, Judge