The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Philadelphia, :
Petitioner :
:
v. : No. 923 C.D. 2021
: Submitted: October 8, 2024
Larry Thompson (Workers’ :
Compensation Appeal Board), :
Respondent :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE MATTHEW S. WOLF, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE LEAVITT FILED: March 19, 2025
The City of Philadelphia (Employer) petitions for this Court’s review
of an adjudication of the Workers’ Compensation Appeal Board (Board) that
awarded survivor benefits to Robin Thompson (Claimant) for the work-related death
of her husband, Larry Thompson (Decedent). In doing so, the Board affirmed the
decision of a workers’ compensation judge (WCJ) that Decedent’s cancer was
caused by his work as a firefighter. On appeal, Employer argues that the WCJ and
the Board erred because the fatal claim petition was untimely filed and because
Claimant did not satisfy the prerequisites for the statutory presumption in the
Workers’ Compensation Act (Act)1 that can be used to establish that a firefighter’s
cancer was caused by his employment.
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2710.
Background
In 2016, Claimant filed a fatal claim petition alleging that Decedent’s
lymphoma, which caused his death on May 11, 2013, resulted from his work as a
firefighter for Employer. On May 4, 2018, the WCJ granted the petition, concluding
that Decedent’s non-Hodgkin’s lymphoma was work related. Employer appealed,
asserting that because the fatal claim petition was filed more than three years after
Decedent’s date of death, it was untimely under Section 315 of the Act, 77 P.S. §602.
The Board remanded the matter to the WCJ to determine whether Claimant’s petition
was filed on May 6, 2016, or on June 7, 2016. The Board explained that in their
respective arguments, the parties used documents that were not in the record. The
Board remanded for the WCJ to make a finding on the filing date. The Board also
directed that, on remand, the WCJ should consider the petition in light of the
Supreme Court’s then-recent decision in City of Philadelphia Fire Department v.
Workers’ Compensation Appeal Board (Sladek), 195 A.3d 197 (Pa. 2018) (Sladek
II).
On September 14, 2020, a different WCJ issued the remand decision.
The WCJ found that the petition was electronically filed on May 6, 2016, which fell
within three years of Decedent’s death; thus, the petition was timely under Section
315 of the Act. One summary in the Workers’ Compensation Automation and
Integration System (WCAIS) showed a “received date” of June 7, 2016, for the
petition. Reproduced Record at 554 (R.R. __).2 Another document in the WCAIS
showed a “date filed” of May 6, 2016. R.R. 256. This latter date was confirmed in
2
Pennsylvania Rule of Appellate Procedure 2173 requires that the reproduced record be numbered
in Arabic figures followed by a small “a.” Pa.R.A.P. 2173. The reproduced record does not
comply with Rule 2173 because it only utilizes Arabic figures. For convenience, we cite to each
page as paginated by Employer.
2
a letter from Claimant’s counsel to Employer dated May 6, 2016, and it was the date
used by the WCJ to make her finding.
As to Sladek II, the WCJ concluded that Claimant’s evidence
established the prerequisites to the statutory presumption set forth in Sections 108(r)3
and 301(f)4 of the Act and, thus, proved that Decedent’s cancer was caused by his
employment.
The WCJ credited Claimant’s testimony that Decedent worked for
Employer as a firefighter from 1985 to October of 2010; worked in many firehouses;
and often came home smelling like smoke. The WCJ also credited the testimony of
Joseph Discher, who worked with Decedent at Task Force 30 and then as his
supervisor at Ladder 25. Discher saw Decedent fight fires in which he was exposed
to smoke with no self-contained breathing apparatus or other personal protective
equipment. Discher testified that Decedent was also exposed to diesel exhaust
emissions from the ladder trucks that were operated inside the firehouse during daily
equipment checks. “[E]very couple months or so,” the firefighters would have to
scrub the soot from the diesel exhaust from the walls. Discher Dep. at 11; R.R. 206.
The firehouses were not equipped with diesel fuel capture systems. Discher
acknowledged that he did not fight fires with Decedent after 2001 and agreed that
although some fire calls involved accidents and not fires, “[l]adder companies
basically just go to structure fires.” Discher Dep. at 25; R.R. 220.
The WCJ credited the expert testimony of Tee Guidotti, M.D., who is
board certified in internal, pulmonary and occupational medicine and trained in the
fields of toxicology and epidemiology. Dr. Guidotti opined that Decedent probably
3
Added by the Act of July 7, 2011, P.L. 251, 77 P.S. §27.1(r).
4
Added by the Act of July 7, 2011, P.L. 251, 77 P.S. §414.
3
had marginal zone B-cell lymphoma, which is an uncommon cancer, or else a diffuse
large B-cell lymphoma, which is more common. They are “all part of a big family[]”
and can “transform into one another” because they are “the same cell type[.]”
Guidotti Dep. at 21; R.R. 46.
Dr. Guidotti testified that the “B-cell line” of lymphomas can be
elevated by carcinogens found at fire scenes. Guidotti Dep. at 35; R.R. 60. Dr.
Guidotti identified the Group 1 carcinogen, trichloroethylene (TCE), as one related
to the formation of B-cell lymphoma. Decedent’s assignment to ladder companies
indicated his frequent exposure to fire smoke. In addition, diesel-powered engines
and ladders filled the firehouses with diesel exhaust, exposing the firefighters “to a
variety of potential carcinogens that arise from [] diesel exhaust that are well-
documented [International Agency for Research on Cancer (IARC)] group 1 and 2A
carcinogens.”5 Guidotti Dep. at 26; R.R. 51.
Dr. Guidotti testified that while “not many studies have been done that
hone down on particular lymphomas,” the relationship between TCE and diffuse B-
cell lymphoma “is not under serious dispute.” Guidotti Dep. at 36-37; R.R. 61-62.
The scientific literature shows an elevated risk for diffuse large B-cell lymphoma
5
The Supreme Court has explained IARC as follows:
The IARC is a specialized research group within the World Health Organization
that attempts to identify the causes of human cancers. The agency evaluates various
agents, mixtures, and exposures, and classifies them into one of five groups. Group
1 substances are considered “carcinogenic to humans;” Group 2A substances are
“probably carcinogenic to humans;” Group 2B substances are “possibly
carcinogenic to humans;” Group 3 substances are “not classifiable as to human
carcinogenicity;” and Group 4 substances are “probably not carcinogenic to
humans.”
Sladek II, 195 A.3d at 200 n.4 (citing IARC Monographs on the Evaluation of Carcinogenic Risks
to Humans, WORLD HEALTH ORGANIZATION, https://www.iarc.who.int/wp-
content/uploads/2018/07/Monographs_Back_QA.pdf (last visited March 18, 2025)).
4
given the exposures known to occur in firefighting. Dr. Guidotti opined that
Decedent’s occupation as a firefighter put him at an increased risk for the cancer
from which he died.
Dr. Guidotti also considered Decedent’s potential risk factors and his
medical history of smoking, diabetes, hepatitis C, and a heart condition. Hepatitis C
can cause splenic marginal zone lymphoma, a subtype of marginal zone lymphoma
that would cause a “massively enlarged spleen,” but Decedent did not have an
enlarged spleen. Guidotti Dep. at 22; R.R. 47. Guidotti testified that people who
have diabetes “are at some slight increased risk” for developing B-cell lymphoma,
but that risk is less than the risk reported for firefighters. Guidotti Dep. at 45; R.R.
70.
On cross-examination, Dr. Guidotti noted that IARC recognized 2, 3,
7, 8 tetrachloro dibenzo-para-dioxin (dioxin) as a Group 1 carcinogen related to the
formation of non-Hodgkin’s lymphoma. Guidotti testified that dioxin is present at
fire scenes and is “a very potent promoter” of cancer. Guidotti Dep. at 135; R.R.
160. Dr. Guidotti acknowledged that his report stated that the IARC classifies TCE
as a Group 1 carcinogen for kidney cancer and a Group 2A carcinogen for
lymphomas.
Employer presented the testimony of Howard Sandler, M.D., an expert
in occupational and environmental medicine. Dr. Sandler agreed that Decedent died
from B-cell lymphoma, specifically diffuse large B-cell lymphoma. People in their
late 50s and 60s have an increased risk of developing B-cell lymphoma, and
Decedent fit into that age group. Dr. Sandler testified that it is not known what
causes the majority of B-cell lymphomas. TCE is a Group 1 carcinogen for kidney
cancer, and it has been primarily studied for those who work in the aerospace
5
manufacturing industry. In Dr. Sandler’s view, TCE is not correlated to the
development of non-Hodgkin’s lymphoma, regardless of exposure duration or
intensity. He opined that Decedent’s cancer was not the result of working in a ladder
or engine company and stated that there was no correlation between his cancer and
his work as a firefighter. Dr. Sandler testified that studies have associated hepatitis
C and diabetes with an increased risk for development of non-Hodgkin’s lymphoma,
which could have caused Claimant’s disease.
In response, Claimant presented a June 29, 2017, rebuttal report from
Dr. Guidotti. He again opined that there was no question, given the chemicals to
which Decedent was exposed and the elevated risk for non-Hodgkin’s lymphoma
among career firefighters, that Decedent’s occupation substantially contributed to
his risk of lymphoma. He opined that Decedent’s lymphoma arose out of his
firefighting exposures.
The WCJ credited Dr. Guidotti’s testimony over Dr. Sandler’s,
explaining that Dr. Guidotti was more qualified to testify in light of the many articles
he had published on the issue of cancer in firefighting service. Further, Dr.
Guidotti’s opinion was supported by IARC monographs and the medical literature.
Based on the credited testimony of Dr. Guidotti, Claimant, and Discher,
the WCJ found that Decedent last worked as a firefighter in October 2010; that he
worked more than four years in continuous firefighting duties prior to his cancer
diagnosis; and that his pre-employment physical examination did not reveal any
evidence of cancer. Decedent’s employment exposed him to soot, smoke, and diesel
fuel emissions that included Group 1 carcinogens. Claimant’s evidence established
a causative link between Decedent’s B-cell, non-Hodgkin’s lymphoma and the
Group 1 carcinogen, dioxin. Given these findings, Claimant was entitled to the
6
statutory presumption in Section 301(f) of the Act that Decedent’s cancer was caused
by his firefighting duties. Employer did not rebut the presumption because Dr.
Sandler did not provide an unequivocal opinion that Decedent’s cancer was caused
by another agent.
The WCJ awarded Claimant 51% of Decedent’s average weekly wage
that he was earning when he last worked in 2010. The WCJ ordered Employer to
prepare a statement of wages using October 2010 as the date of injury and to begin
paying Claimant 51% of Decedent’s average weekly wage, in no event to be less
than 51% of the statewide average weekly wage for 2010, which was $430.95.6
Employer appealed. The Board affirmed the WCJ’s decision and held
that substantial evidence supported the WCJ’s finding that the fatal claim petition
was electronically filed and received in the WCAIS on May 6, 2016, which was
within three years of Decedent’s death under Section 315 of the Act. The Board
agreed that Claimant’s evidence established her entitlement to the presumption of
compensability under Section 301(f) of the Act. As such, the burden shifted to
Employer to establish that firefighting did not cause Decedent’s cancer. Because
the WCJ rejected the testimony of Employer’s expert, Employer did not rebut the
presumption.
Employer petitioned for this Court’s review.
Appeal
On appeal,7 Employer raises three issues for our consideration. First,
Employer argues that the Board erred in affirming the WCJ’s finding that Claimant
6
The WCJ calculated 51% of the statewide average weekly wage for 2010 to be $422.50. The
Board noted that the statewide average weekly wage for 2010 was $845.00, and 51% of that
amount should be $430.95. Board Adjudication at 13, n.6.
7
Our review of an adjudication of the Board determines whether the necessary findings of fact are
supported by substantial evidence, whether the Board procedures were violated, whether
7
filed a timely fatal claim petition. Second, and in the alternative, Employer argues
that the Board erred in holding that Claimant met her evidentiary burden under
Sections 108(r) and 301(f) of the Act and, thus, was entitled to the statutory
presumption that Decedent’s cancer was work related. Third, Employer argues that
the WCJ erred in calculating Claimant’s survivor benefits on the basis of Decedent’s
earnings in 2010, as opposed to his earnings at the time of death. We address these
issues seriatim.
I. Timeliness of Fatal Claim Petition
In its first issue, Employer argues that the Board erred in holding that
Claimant filed a timely fatal claim petition. A regulation of the Bureau of Workers’
Compensation (Bureau) states that where a petition does not contain a postmark or
postal receipt, the filing date is the date on which the Bureau received the petition.
34 Pa. Code §121.3(c). Employer’s documentary evidence showed that Claimant’s
fatal claim petition was “received” by the Bureau on June 7, 2016. R.R. 554.
Because that was more than three years after Decedent’s death on May 11, 2013, the
petition was untimely under Section 315 of the Act.
Claimant counters that the WCJ found that she filed the fatal claim
petition electronically on May 6, 2016, and that finding is supported by substantial
evidence. A log in the WCAIS showed a filing date of May 6, 2016, and a letter of
counsel to Employer confirmed that date. Claimant noted that this issue has been
litigated twice before two WCJs, and they reached the same conclusion: the claim
petition was electronically filed, and received, on May 6, 2016.
Section 315 of the Act provides, in pertinent part:
constitutional rights were violated, or whether an error of law was committed. Walter v. Workers’
Compensation Appeal Board (Evangelical Community Hospital), 128 A.3d 367, 371 n.5 (Pa.
Cmwlth. 2015).
8
In cases of personal injury all claims for compensation shall be
forever barred, unless, within three years after the injury, the
parties shall have agreed upon the compensation payable under
this article; or unless within three years after the injury, one of
the parties shall have filed a petition as provided in article four
hereof. In cases of death all claims for compensation shall be
forever barred, unless within three years after the death, the
parties shall have agreed upon the compensation under this
article; or unless, within three years after the death, one of the
parties shall have filed a petition as provided in article four
hereof.
77 P.S. §602 (emphasis added). Section 121.3(c) of the Bureau regulation further
provides:
(c) The filing date is the date indicated on the United States
Postal Service postmark or postal receipt. If the postmark or
postal receipt is absent or unreadable, the filing date is the date
of receipt by the Bureau. In all other instances, including
electronic filing or hand-delivery, the filing date is the Bureau’s
date of receipt.
34 Pa. Code §121.3(c) (emphasis added). In short, the “date of receipt” governs the
filing date whenever a petition is filed electronically. Id.
On remand before the WCJ, the parties submitted additional evidence
relevant to the date of the petition’s filing. Claimant’s counsel produced a copy of
a letter she sent to Employer, dated May 6, 2016, stating “[e]nclosed please find a
copy of a Fatal Claim Petition, that we filed electronically with the Bureau [].” R.R.
557. A printout from WCAIS, titled “Claim Summary-External,” showed that the
fatal claim petition was “received” on June 7, 2016. R.R. 554. However, a business
event log on WCAIS showed “petition filed” on May 6, 2016; “address changed”
for both Claimant and Employer on June 7, 2016; and “petition accepted” on June
8, 2016. R.R. 561. Based on the log and counsel’s letter, the WCJ found that
Claimant filed the fatal claim petition electronically on May 6, 2016.
9
The relevant inquiry in a substantial evidence analysis is not whether
“there is evidence in the record which supports a factual finding contrary to that
made by the WCJ” but, rather, “whether there is any evidence which supports the
WCJ’s factual finding.” Hoffmaster v. Workers’ Compensation Appeal Board
(Senco Products, Inc.), 721 A.2d 1152, 1155 (Pa. Cmwlth. 1998). The Court views
the evidence in a light most favorable to the party that prevailed before the factfinder.
Id. While there are inconsistencies in the documentary evidence, the WCJ’s finding
that Claimant filed her fatal claim petition electronically on May 6, 2016, is
supported by substantial evidence, and the Board did not err in affirming the WCJ
in this regard.
II. Statutory Presumption for Occupational Diseases
Employer argues, next, that the Board erred in holding that Claimant
met her burden on the prerequisites to the presumption in Sections 108(r) and 301(f)
of the Act that Claimant used to establish that Decedent’s cancer was related to his
firefighting duties. Employer concedes that Decedent had non-Hodgkin’s
lymphoma; that he was a firefighter for more than four years in continuous
firefighting duties prior to his diagnosis; and that a physical examination did not
reveal any evidence of cancer prior to his employment as a firefighter. However,
Employer argues that Claimant did not establish that Decedent’s cancer was caused
by his direct exposure to an IARC Group 1 carcinogen that has been proven to cause
non-Hodgkin’s lymphoma. This type of cancer has not been studied enough to allow
an expert to opine on cause; its cause is unknown, as Dr. Sandler testified. Further,
Dr. Guidotti did not state how many exposures to a Group 1 carcinogen were needed
in order to demonstrate that it was a substantial factor in the development of
Decedent’s cancer. The only documented carcinogen exposure came from a report
10
in Decedent’s personnel file, i.e., exposure to polychlorinated bi-phenyls (PCBs) in
1988. While Dr. Guidotti testified that dioxin was a cause of non-Hodgkin’s
lymphoma, he did not opine that exposure to dioxin can cause marginal zone
lymphoma, the subtype of B-cell lymphoma he believed Decedent had.
Employer asserts that TCE, the other carcinogen discussed in Dr.
Guidotti’s testimony and report, was not designated as a Group 1 carcinogen by the
IARC when Section 108(r) was added to the Act on July 7, 2011. For this reason,
TCE cannot serve as the basis for benefits under Section 108(r) of the Act. This
would violate the non-delegation doctrine, as established in Protz v. Workers’
Compensation Appeal Board (Derry Area School District), 161 A.3d 827 (Pa. 2017).
Although Decedent’s last date of work as a firefighter was in October
2010, Employer argues there is no evidence that Decedent was exposed to Group 1
carcinogens in October 2010. The WCJ assumed the last date of Decedent’s
employment was also his last date of exposure to an occupational hazard. This
assumption constitutes reversible error.
In response, Claimant argues that the WCJ’s decision was fully
consonant with the record evidence and the Act. Decedent fought fires for 25 years.
Based upon his review of the epidemiological evidence, Dr. Guidotti testified that
the risk of non-Hodgkin’s lymphoma is substantially increased among firefighters
and that it is caused by IARC Group 1 carcinogens including TCE and dioxin, which
are present at fire scenes. The record supported the Board’s finding that it is possible
that Group 1 carcinogens caused the type of cancer with which Decedent had been
afflicted, thereby entitling Claimant to the statutory presumption under Section
301(f) of the Act that Decedent’s cancer was work related.
11
A. Applicable Statutory and Case Law
We start with a review of the relevant law. A claimant seeking benefits
for a work-related injury bears the burden of establishing the elements necessary to
support an award. Coyne v. Workers’ Compensation Appeal Board (Villanova
University), 942 A.2d 939, 945 (Pa. Cmwlth. 2008). Section 301(c)(2) of the Act
provides that the term “injury” includes an occupational disease, as defined in
Section 108 of the Act. 77 P.S. §411(2). Section 108 of the Act provides a list of
occupational diseases, one of which is “[c]ancer suffered by a firefighter which is
caused by exposure to a known carcinogen [that] is recognized as a Group 1
carcinogen by [IARC].” Section 108(r) of the Act, 77 P.S. §27.1(r) (emphasis
added). The Act establishes a presumption for firefighters asserting an occupational
disease of cancer. Section 301(f) of the Act states, in pertinent part, as follows:
Compensation pursuant to cancer suffered by a firefighter shall
only be to those firefighters who have served four or more years
in continuous firefighting duties, who can establish direct
exposure to a carcinogen referred to in section 108(r) relating to
cancer by a firefighter and have successfully passed a physical
examination prior to asserting a claim under this subsection or
prior to engaging in firefighting duties and the examination
failed to reveal any evidence of the condition of cancer. The
presumption of this subsection may be rebutted by substantial
competent evidence that shows that the firefighter’s cancer was
not caused by the occupation of firefighting.
77 P.S. §414 (emphasis added).
In sum, to use the Section 301(f) presumption, the firefighter must
establish four or more years of continuous firefighting duties; direct exposure to a
Group 1 carcinogen; and a physical examination prior to engaging in firefighting
that did not reveal cancer. The firefighter must also show that his cancer is a type
12
caused by exposure to a Group 1 carcinogen.8 At that point, the burden of proof then
shifts to the employer to offer evidence that “the firefighter’s cancer was not caused
by the occupation of firefighting.” Section 301(f) of the Act, 77 P.S. §414.
Section 301(f) of the Act also imposes a time limitation on the filing of
Section 108(r) claims. “First, a claimant must file the claim within 300 weeks of the
last date of work with exposure to a known Group 1 carcinogen; if the claimant fails
to do so, he is not foreclosed from bringing a claim by Section 301(f), but he loses
the statutory presumption of Sections 301(e) and 301(f).” Fargo v. Workers’
Compensation Appeal Board (City of Philadelphia), 148 A.3d 514, 520 (Pa.
Cmwlth. 2016) (emphasis added). Second, “if the claimant does not file the claim
until more than 600 weeks after the date of the last workplace exposure, the claimant
is foreclosed from bringing that claim in its entirety.” Id. (emphasis added). The
last date of exposure to a Group 1 carcinogen is critical in determining whether the
claimant is eligible for the evidentiary presumption of entitlement to compensation
in accordance with Section 301(f).
In Sladek II, 195 A.3d at 208, our Supreme Court held that Section
108(r) of the Act requires the claimant to establish only “a general causative link
between the claimant’s type of cancer and a Group 1 carcinogen.” In other words,
8
On the evidence of direct exposure, this Court has explained:
Notably, Section 301(f) does not require career firefighters to identify and
document the carcinogens encountered at every incident. Rather, a career firefighter
may establish direct exposure to a Group 1 carcinogen by evidence of his
occupational exposure to fire smoke, soot, diesel exhaust, and other hazardous
substances such as asbestos, and expert medical/scientific evidence identifying the
Group 1 carcinogens present in those substances.
Bristol Borough v. Workers’ Compensation Appeal Board (Burnett), 206 A.3d 585, 602 (Pa.
Cmwlth. 2019).
13
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.[] It does not require the claimant to prove
that the identified Group 1 carcinogen actually caused [the]
claimant’s cancer.
Sladek II, 195 A.3d at 208 (emphasis in original; footnote omitted). The Supreme
Court instructed that “epidemiological evidence is clearly relevant and useful” at this
first stage of litigation to the extent it “can provide insight into whether the agent
can cause the disease.” Id. (internal quotation omitted). To rebut the presumption
that a firefighter’s cancer was caused by his firefighting duties, the employer must
identify the specific agent that caused the claimant’s cancer and demonstrate that
exposure to that agent did not occur in the course of firefighting duties. Id. at 209.
The employer must “produce a medical opinion regarding the specific, non-
firefighting related cause of [the] claimant’s cancer.” Id. Epidemiological evidence
is not sufficient to rebut the presumption. Id. at 209-10.
B. Analysis
With this statutory framework in mind, we first address Employer’s
challenge to the WCJ’s finding on Decedent’s last date of exposure to a Group 1
carcinogen, which date triggers the statute of limitations. In this regard, we view the
evidence in the light most favorable to Claimant, the prevailing party. Hoffmaster,
721 A.2d at 1155.
The WCJ found that Decedent’s last date of work was in October 2010
and that “during his employment” Decedent was exposed to Group 1 carcinogens.
WCJ Decision at 10, Finding of Fact No. 16. The WCJ also found that Decedent
was exposed to “all types of smoke, soot, and diesel fuel emissions” while employed
as a career firefighter, and Group 1 carcinogens were present in this smoke and
vehicle emissions. Id. These findings are supported by the credited testimony of
14
Claimant’s fact witnesses and expert. Employer contends, however, that there is no
evidence that Claimant fought fires in October of 2010 and that fact cannot be
presumed. We rejected this argument in City of Philadelphia v. Estate of Thomas
Burke (Workers’ Compensation Appeal Board) (Pa. Cmwlth., No. 1215 C.D. 2020,
filed July 30, 2021) (unreported),9 slip op. at 15-16 (holding that career firefighter’s
last date of work is the last day of exposure to an occupational hazard). We will not
revisit that decision and follow it here.
Next, Employer argues that Claimant did not establish that Decedent’s
cancer was caused by his direct exposure to an IARC Group 1 carcinogen. Section
108(r) does not require the claimant to prove that the identified carcinogen “actually
caused [his] cancer.” Sladek II, 195 A.3d at 208 (emphasis added). The general
causation requirement “weeds out claims for compensation for cancers with no
known link to Group 1 carcinogens.” Id. The Supreme Court observed that the
burden imposed by Section 108(r) “is not a heavy burden.” Id.
Here, the WCJ credited the testimony of Claimant and Discher, and it
showed that Decedent, a career firefighter since 1985, had been frequently exposed
to fire smoke, soot, and diesel fuel emissions during his employment as a firefighter.
Based upon his experience and review of the medical literature, Dr. Guidotti opined
that the constituents of fire smoke, particularly TCE, are associated with an elevated
risk of B-cell, non-Hodgkin’s lymphoma. Dr. Guidotti identified dioxin, a Group 1
carcinogen present at fire scenes, as a primary promoter of non-Hodgkin’s
lymphoma. Dr. Guidotti testified within a reasonable degree of medical certainty
9
This Court’s unreported memorandum opinions, issued after January 15, 2008, may be cited “for
[their] persuasive value, but not as a binding precedent.” Section 414(a) of the Commonwealth
Court’s Internal Operating Procedures, 210 Pa. Code §69.414(a).
15
that Claimant’s cancer, a specific form of B-Cell, non-Hodgkin’s lymphoma, arose
out of his occupation as a firefighter. The WCJ credited his opinion.
Employer contends that the WCJ erred because Dr. Guidotti did not
state how many times Decedent had to be exposed to any Group 1 carcinogen in
order for that exposure to be a substantial factor in his type of cancer. The only
documented carcinogen exposure was a report in Decedent’s personnel file that
suggested exposure to PCBs in 1988.
A “career firefighter may establish direct exposure to a Group 1
carcinogen by evidence of his occupational exposure to fire smoke, soot, diesel
exhaust, and other hazardous substances . . . , and expert medical/scientific evidence
identifying the Group 1 carcinogens present in those substances.” Bristol Borough,
206 A.3d at 602. In Sladek II, the claimant, a career firefighter, testified about his
exposure to fire smoke, soot, ash, and diesel emissions, and presented medical
testimony as to the causal relationship between malignant melanoma and his
exposure to these substances. This suffices to show “direct exposure.” See also
Estate of Thomas Burke, slip op. at 13 (evidence of deceased career firefighter’s
occupational exposure to fire smoke, soot, and diesel exhaust, combined with expert
medical testimony, demonstrates exposure).
The testimony of Claimant and Discher established Decedent’s
exposure to fire smoke, soot, and diesel exhaust. Dr. Guidotti testified to the causal
relationship between B-cell non-Hodgkin’s lymphoma and Decedent’s exposure to
TCE and dioxin, which are found in fire scenes. In sum, substantial evidence
supports the WCJ’s finding that Claimant established Decedent’s direct exposure to
an IARC Group 1 carcinogen during his tenure as a firefighter.
16
Employer next argues that while Dr. Guidotti testified that dioxin is a
Group 1 carcinogen related to non-Hodgkin’s lymphoma, he did not testify that
exposure to dioxin can cause marginal zone lymphoma, the subtype of B-cell
lymphoma suffered by Decedent. Dr. Guidotti explained as follows:
[Dioxin] is thought to be a primary carcinogen for non-
Hodgkin’s lymphoma but it is also a very, very potent promoter.
So if you have a carcinogen and then you also give dioxin you
will get many more tumors than if you gave the primary
carcinogen alone or dioxin alone and added them up.
So it has a promoting effect, and it fits into the category of what
you were saying earlier about not exactly carcinogens but
carcinogen promoters or co-carcinogens that amplify the effect
of exposure to carcinogen, and dioxin is a classic example of that.
Guidotti Dep. at 135; R.R. 160 (emphasis added).
Taken as a whole, Dr. Guidotti explained that dioxin, a Group 1
carcinogen, amplified the effect of Decedent’s exposure to other carcinogenic
chemicals present in fire smoke, including TCE, that are associated with the
formation of B-cell, non-Hodgkin’s lymphoma. Dr. Guidotti also testified the
subtypes of B-cell lymphomas, whether a marginal zone B-cell lymphoma or a
diffuse large B-cell lymphoma, can “transform into one another” because they are
“the same cell type[.]” Guidotti Dep. at 21; R.R. 46. While Dr. Guidotti and Dr.
Sandler disagreed on the subtype of non-Hodgkin’s lymphoma Decedent had, they
“agreed that the distinction does not impact causation.” Employer Brief at 19.
Section 108(r) of the Act requires a claimant to produce evidence that
it is possible that the carcinogen in question caused the type of cancer from which
he suffered, not that “the identified carcinogen actually caused [his] cancer.” Sladek
II, 195 A.3d at 208 (emphasis added). Dr. Guidotti’s medical opinion on the
causation of Claimant’s B-cell, non-Hodgkin’s lymphoma satisfies the general
17
causation requirement in Section 108(r) of the Act. Because the WCJ rejected the
opinion of Dr. Sandler, Employer did not overcome the presumption that Decedent’s
cancer was related to his work as a firefighter. On appellate review, this Court does
not reweigh evidence or review witness credibility. Casne v. Workers’
Compensation Appeal Board (Stat Couriers, Inc.), 962 A.2d 14, 17 (Pa. Cmwlth.
2008).
Finally, Employer argues that TCE cannot be the basis on which to
award death benefits under Section 108(r) of the Act because it was not designated
as a Group 1 carcinogen by the IARC when Section 108(r) was added to the Act on
July 7, 2011. The WCJ award violates the non-delegation doctrine under Protz, 161
A.3d 827. This Court considered, and rejected, this argument in City of Philadelphia
v. Healey (Workers’ Compensation Appeal Board), 297 A.3d 872, 882 (Pa. Cmwlth.
2023) (en banc), in which we explained:
[U]nlike Protz and Pennsylvania Builders Association v.
Department of Labor & Industry, 4 A.3d 215 (Pa. Cmwlth.
2010), wherein the General Assembly expressly authorized third
parties to set standards that substantively affected [workers’
compensation] recipients and builders without the necessary
safeguards in place, in Section 108(r) of the Act, the General
Assembly merely established the IARC’s Group 1 listings as the
evidentiary standard for claimants’ statutory presumption that
“weeds out” [workers’ compensation] claims “for cancer[ ] with
no known link to Group 1 carcinogens.” Sladek, 195 A.3d at
208. A claimant does not automatically receive [workers’
compensation] benefits merely because the IARC listed it as a
Group 1 carcinogen. A claimant still has the burden to prove that
he was exposed to such a substance and that the substance has
been linked to his type of cancer. A WCJ must ultimately
determine whether a claimant met his burden based on the
evidence presented. Thus, regardless of whether ongoing
research may change the IARC’s Group 1 list, a claimant’s
evidentiary threshold remains the same.
18
We will not revisit that decision.
The findings of the WCJ are supported by substantial evidence, and
they support the WCJ’s conclusion that Claimant was entitled to the statutory
presumption in Section 301(f) of the Act to prove that his non-Hodgkin’s lymphoma
was an occupational disease under Section 108(r) of the Act. We discern no error in
the Board’s adjudication to affirm the WCJ.
III. Average Weekly Wage
In its final issue, Employer argues that the WCJ incorrectly calculated
Decedent’s average weekly wage. Employer argues that Decedent’s wages should
be calculated as of the date his disability arose in 2013, when he was diagnosed with
cancer. At that time, Decedent was employed by Presbyterian Hospital. Employer
argues that Decedent’s 2013 wages, not those earned as a firefighter, should govern
the calculation of compensation. Employer argues that Fisk v. Workmen’s
Compensation Appeal Board (General Electric), 633 A.2d 1305 (Pa. Cmwlth.
1993), is distinguishable from the case at bar because the issue in Fisk was about
“rate of compensation,” which does not provide “precedential authority regarding
the calculation of average weekly wage in an occupational disease case[.]”
Employer Brief at 41 (emphasis in original omitted). Employer argues that the WCJ
improperly placed Claimant’s burden of establishing Decedent’s wages upon
Employer.
In Fisk, the decedent last worked for the employer that exposed him to
asbestos on November 30, 1980. After he retired, he went to work for another
employer. The decedent was diagnosed with asbestos-related lung disease in 1986
and died in 1987. The issue presented before this Court was whether the award
19
should be “based upon the decedent’s wage at the time that he was last exposed to
asbestos[.]” Fisk, 633 A.2d at 1306.
This Court held that a claimant in an occupational disease case is
entitled to benefits calculated on the basis of his wages at the time of his last
exposure to the occupational hazard. A Bureau regulation states: “For cases
involving occupational diseases under the act, the weekly wage will be determined
in accordance with [S]ection 309 of the [A]ct (77 P.S. §582), and a claimant’s
compensation rate shall be subject to the maximum compensation payable rate in
effect at the date of last exposure.” 34 Pa. Code §121.14 (emphasis added). This
Court observed that setting the compensation rate as of the date a claimant’s
occupational disease manifested itself would be unjust to employees who are
unemployed or retired. Fisk, 633 A.2d at 1307. They would have no earnings upon
which to base an award. Therefore, we concluded that “for the purpose of
calculating benefits in occupational disease cases under the Act, the date of injury
must be the date of last exposure.” Id.
In City of Johnstown v. Workers’ Compensation Appeal Board
(Sevanick) (Pa. Cmwlth., No. 1156 C.D. 2019, filed January 10, 2020) (unreported),
this Court considered, and rejected, the argument that Fisk is limited in scope. We
held that “Fisk leaves no uncertainty that the rate of compensation in an occupational
disease case is fixed in the year during which the claimant is last exposed and that
the [average weekly wage] is subject to the maximum rate in effect at the date of the
claimant’s last exposure.” Sevanick, slip op. at 18-19.
Because Decedent’s last date of exposure to the occupational hazard
was October 2010, the WCJ directed the payment of benefits based on Decedent’s
wage as of October 2010. This did not improperly place Claimant’s burden of
20
proving Decedent’s loss of wages upon Employer. Employer has records of
Decedent’s employment, and Employer has not asserted that such information is
unavailable. See Estate of Thomas Burke, slip op. at 17.
Conclusion
We conclude that Claimant timely filed her fatal claim petition and met
her evidentiary burden under Sections 108(r) and 301(f) of the Act and, thus,
established that Decedent’s cancer was related to his employment as a firefighter.
The record supports the WCJ’s finding that Decedent’s last date of exposure to an
occupational hazard was in October 2010, and the WCJ correctly held that
Claimant’s benefits should be calculated as of Decedent’s last date of exposure.
Thus, we affirm the Board’s adjudication.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
Judge Dumas did not participate in the decision in this case.
21
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Philadelphia, :
Petitioner :
:
v. : No. 923 C.D. 2021
:
Larry Thompson (Workers’ :
Compensation Appeal Board), :
Respondent :
ORDER
AND NOW, this 19th day of March, 2025, the adjudication of the
Workers’ Compensation Appeal Board, dated July 21, 2021, in the above-captioned
matter, is AFFIRMED.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita