The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Peter Demchenko, :
Petitioner :
:
v. : No. 2164 C.D. 2015
: Submitted: April 22, 2016
Workers’ Compensation Appeal :
Board (City of Philadelphia), :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION
BY PRESIDENT JUDGE LEAVITT FILED: October 26, 2016
Peter Demchenko (Claimant) petitions for review of an adjudication
of the Workers’ Compensation Appeal Board (Board) denying him compensation
benefits for his prostate cancer. Using different reasons, the Board affirmed the
decision of the Workers’ Compensation Judge (WCJ). It held that Claimant, a
retired firefighter, did not prove that prostate cancer is caused by exposure to
IARC Group I carcinogens and, thus, an occupational disease under Section 108(r)
of the Workers’ Compensation Act.1 The Board also held that Claimant could not
use the statutory presumption in Section 301(f) of the Act2 that assists a firefighter
in proving that his occupational disease is compensable because he filed his claim
1
Act of June 2, 1915, P.L. 736, as amended, added by the Act of December 6, 1972, P.L. 930,
77 P.S. §27.1(r). Section 301(c)(2) of the Act, 77 P.S. §411(2), provides that the term “injury”
as used in the Act shall include an “occupational disease” as defined in Section 108 of the Act.
The Act of July 27, 2011, P.L. 251, commonly known as Act 46, amended Section 108 to
include: “(r) Cancer suffered by a firefighter which is caused by exposure to a known
carcinogen which is recognized as a Group 1 carcinogen by the International Agency for
Research on Cancer.” 77 P.S. §27.1(r).
2
77 P.S. §414.
petition more than 300 weeks after his last day of work as a firefighter. Finally,
the Board agreed with the WCJ that Claimant did not prove that his prostate cancer
was caused by his workplace exposure to Group 2A carcinogens and, thus, an
occupational disease under the “catch all” provision in Section 108(n) of the Act.
We affirm.
Background
The City of Philadelphia (Employer) hired Claimant as a firefighter in
1974. After additional training, he began working as both a firefighter and a
paramedic. By January of 1980, he was working exclusively as a paramedic. In
May of 2006 Claimant retired. One month later, Claimant was diagnosed with
prostate cancer, which was successfully treated with surgery.
In June of 2012, Claimant filed a claim petition alleging that his
prostate cancer was caused by exposure to International Agency for Research on
Cancer (IARC) Group 1 carcinogens while working as a firefighter. Claimant
sought payment of disability compensation from November 27, 2006, to January
15, 2007, and medical bills. Employer filed an answer denying the allegations.3
At the hearing before the WCJ, both Claimant and Employer presented evidence.
Claimant testified by deposition. He explained that he had worked at
numerous fire stations in the City where he was exposed to diesel fuel emissions
because the fire trucks were kept running inside the building. In addition, fire
stations were full of secondhand tobacco smoke because firefighters were
permitted to smoke inside the buildings. Claimant also testified about the
carcinogens in the smoke and burning debris to which he was exposed while
3
Claimant also filed a penalty petition, but the WCJ denied it. Claimant has not appealed that
ruling.
2
fighting fires. Further, during his service as a firefighter, he did not always wear a
self-contained breathing apparatus (SCBA). After fighting a fire, it was not
unusual for Claimant to have soot all over his face and in his nostrils. Claimant
stated that the last active fire he fought as a firefighter was in 1979 or 1980.
Claimant also testified about his work as a paramedic providing
medical services to victims and to firefighters. Providing these services exposed
him to smoke and the diesel emissions from the running trucks, as well as the
smoke in the burning buildings. Claimant acknowledged that paramedics mainly
respond to car fires and medical emergencies, such as a person choking on food at
a restaurant. Claimant estimated that he responded to three active fires in his last
year of work for Employer as a paramedic.
In June 2006, one month after his retirement, Claimant was diagnosed
with prostate cancer. Claimant had not been previously diagnosed with any type of
cancer. Further, Claimant does not have a family history of prostate cancer, but his
mother suffered pancreatic cancer. Claimant acknowledged that he has been
smoking cigarettes since 1968.4
Claimant submitted a report from Virginia M. Weaver, M.D., M.P.H.,
who has studied the occupational diseases of firefighters. Dr. Weaver found that
the smoke to which firefighters are exposed contains the following IARC Group 1
carcinogens: arsenic; asbestos; benzene; benzo[a]pyrene; 1, 3-butadiene;
4
Claimant explained that his daily cigarette smoking has varied over the years. He estimated
that, on average, he smoked half a pack a day. On cross-examination, Claimant acknowledged
that although the affidavit he provided to his medical expert, Dr. Singer, stated that at most he
smoked one pack of cigarettes a day, his medical records might reflect that he smoked one to two
packs of cigarettes a day at one point. He was not smoking at the time of his affidavit, but he has
since resumed smoking.
3
formaldehyde; and soot. These carcinogens enter the body through inhalation, skin
absorption, and ingestion of contaminated nasopharyngeal secretions. Further, the
National Institute for Occupational Safety and Health (NIOSH) has shown that
diesel exhaust is carcinogenic. Dr. Weaver opined that firefighters are exposed to
IARC Group 1 carcinogens in the course of their work, but she did not specify the
types of cancer that can be caused by Group 1 carcinogens.
Claimant also offered the deposition testimony of Barry L. Singer,
M.D., a physician, who is board certified in internal medicine, hematology, and
medical oncology. Dr. Singer, who has treated cancer patients for more than 40
years, focuses on breast, colon, and lung cancers. Dr. Singer is not an
epidemiologist or toxicologist, and he does not specialize in the etiology of cancer.
Dr. Singer stated that, in 2008, he was contacted by Claimant’s
counsel to evaluate the cancer history of a number of firefighters to determine
whether their cancer was work-related and, thus, compensable under the Act. Dr.
Singer estimated that since 2008 he has reviewed 40 to 50 cases on referral from
Claimant’s counsel. Approximately 25 of those referrals involved firefighters with
prostate cancer.
With each referral, Claimant’s counsel sends Dr. Singer the
firefighter’s medical history, and an affidavit from the firefighter about his job
duties, length of service, and family medical history. Dr. Singer did not conduct a
physical examination of any firefighter referred to him. Claimant’s counsel also
sends Dr. Singer articles from the medical literature relevant to firefighters and
cancer. Dr. Singer evaluates these materials and prepares a report. This process
was followed in the case of his report on Claimant’s prostate cancer.
4
Dr. Singer testified that he uses a “differential diagnosis”
methodology5 to assess the cause of a firefighter’s cancer. Notes of Testimony
(N.T.), 12/21/2012, at 46. Practitioners use this methodology to assess the history
and symptoms of their patients. Dr. Singer acknowledged the absence of scientific
authority for the use of this methodology to determine a causal connection between
a given agent and a given cancer.
Dr. Singer’s report on Claimant’s prostate cancer stated that Claimant
was exposed to Group 1 carcinogens commonly found in smoke, i.e., arsenic;
asbestos; benzene; benzo(a)pyrene; 1, 3-butadiene; formaldehyde; and soot. It also
stated that smoke contains IARC Group 2A carcinogens, including creosote, diesel
engine exhaust, polychlorinated biphenyls, polycyclic aromatic hydrocarbons and
styrene. Dr. Singer identified four studies he reviewed that relate prostate cancer
and firefighting:
1. Fire Engineering, “A Cohort Mortality Study of
Philadelphia Firefighters”.
2. LeMasters, Grace, et al, “Cancer Risk Among Firefighters:
A review and Meta-analysis of 32 Studies”.
3. Samet, Jonathan, M.D., et al, “An Occupational Health
Investigation of Cancer Among Fire Fighters in Anne Arundel
County, Maryland”.
5
Dr. Singer described the differential diagnosis methodology as follows:
A differential diagnosis is what we use to list all of the possibilities in terms of
diagnosis that a patient can have in terms of diseases, causes of the disease. And
essentially we knock off causes or conditions that we don’t believe are by ruling
them out and eventually come down to what we consider a final diagnosis and
most probably diagnosis.
Notes of Testimony, 12/21/2012, at 46. Dr. Singer’s deposition of December 21, 2012, is not
contained in the reproduced record.
5
4. Bates, Michael, Ph.D., “Registry-Based Case-Control
Study of Cancer in California Firefighters”.
Reproduced Record at 21 (R.R. __). Dr. Singer opined that Claimant’s exposure to
Group 1 and Group 2A carcinogens while working for Employer was “a
substantial contributing factor in the development of his prostate cancer.” Id. Dr.
Singer explained that his use of the words “substantial contributing factor” meant
that if that factor did not exist, more likely than not the firefighter would not have
developed the disease when he did. N.T., 12/21/2012, at 56. Stated otherwise, the
exposure explained the timing of the disease’s onset.
On cross-examination, Dr. Singer acknowledged that he had not
considered the methodologies used by public health experts to determine what
exposures cause cancer, including studies published by the EPA, Veteran’s
Administration, the National Academy of Science and the IARC. Nor did Dr.
Singer consider the American Medical Association’s Guides to the Evaluation of
Disease and Injury Causation, the Federal Court handbook or the Bradford Hill
criteria.6 Dr. Singer did not do his own analysis of studies reported in the literature
or do any lab testing.
Dr. Singer stated that most firefighters will not develop prostate
cancer. N.T., 1/28/2013, at 73; R.R. 101. Of those firefighters that do develop
prostate cancer, some will develop it for reasons unrelated to firefighting, such as
age. Dr. Singer testified that in all but one of the cases he reviewed, a significant
factor contributing to the cancer was exposure to carcinogens at work.
6
Following his December 2012 deposition, Dr. Singer reviewed the American Medical
Association’s Evaluation of Disease and Injury Causation and testified that his methodology
followed the steps on causation analysis.
6
Dr. Singer acknowledged that the level of exposure to a given agent
impacts the causation of cancer. Dr. Singer also acknowledged that the IARC
Monograph contained findings that showed that the carcinogenic exposure faced
by firefighters is limited. For instance, 90% of all fires are extinguished in less
than ten minutes; less than half of all fire runs involve actual fires; and less than
half of the actual fires involve observable flames. IARC also found that most fires
are fought from the outside of the structure rather than from the inside of the
structure, and that in a given year, firefighters spent one to two percent of their
time on the job actually fighting fires.
Dr. Singer acknowledged that the greatest risk factor for prostate
cancer is age. Other risk factors include race and family history. These factors
differed greatly among the 25 cases he reviewed. However, these differences did
not impact his opinion that exposure to carcinogens was a significant contributing
factor to each firefighter’s development of prostate cancer.
Dr. Singer testified that the carcinogens that are related to prostate
cancer are: arsenic; cadmium; benzo(a)pyrene, which is related to or found in
polycyclic aromatic hydrocarbons (PAHs); and dioxin. He was unable to cite any
studies linking cadmium to prostate cancer. He also conceded that he could not
opine that prostate cancer is related generally to firefighting because it was beyond
his expertise. N.T., 1/14/2013, at 292-93.7 Further, Dr. Singer agreed that “we
don’t know precise etiologies for most cancers,” which means that, for about 70%
of the population with cancer, no one can pinpoint a precise etiology for those
cancers. Id. at 294.
7
Dr. Singer’s deposition of January 14, 2013, is not contained in the reproduced record.
7
Dr. Singer acknowledged that studies have related prostate cancer to
hormones or endocrine disruption. For example, a higher level of androgens
(testosterone) increases the probability of prostate cancer. Other studies have
related diet to increased risk of prostate cancer. However, the only accepted risk
factors for prostate cancer are race, family history and age.
With regard to Claimant, Dr. Singer acknowledged that he did not
know when he issued his report that Claimant worked as a fire paramedic, not a
firefighter, at the engine companies listed in Claimant’s affidavit. Dr. Singer also
acknowledged that he did not know that Claimant stopped working as a firefighter
in 1980.
Finally, in a letter dated November 20, 2012, Dr. Singer addressed the
opinion of Employer’s Expert, Tee L. Guidotti, M.D., M.P.H., D.A.B.T., that the
apparently increased incidence of prostate cancer in firefighters was due to Prostate
Specific Antigen (PSA) detection bias. Because firefighters have generous health
insurance, they are regularly tested for prostate cancer. Dr. Singer disagreed with
Dr. Guidotti, explaining that prostate cancer “screening did not become fairly
common in the U[nited] S[tates] until around 1990.” R.R. 124. Because 30% of
the studies of firefighters with prostate cancer were conducted prior to 1990, Dr.
Singer did not believe they were affected by screening bias.
After Dr. Singer reviewed Claimant’s deposition testimony, he issued
another report, again opining that Claimant’s prostate cancer was related to his
work as a firefighter and paramedic. In this report, Dr. Singer stated that, although
Claimant worked strictly as a paramedic from 1980 to his retirement, there were
times he had to enter a burning building to rescue people, which exposed him to
soot and smoke, and he was exposed to diesel fuel exhaust emissions from the fire
8
trucks. Dr. Singer opined that Claimant’s significant smoking history was not a
risk factor for prostate cancer.
In opposition to Claimant’s claim petition, Employer submitted the
deposition testimony of Dr. Guidotti, who is board certified in internal medicine,
pulmonary medicine, occupational medicine, and has a degree in toxicology. 8 Dr.
Guidotti is also trained in epidemiology, which he described as the “science of the
patterns of diseases in populations.” N.T., 1/21/2013, at 11; R.R. 148. Dr.
Guidotti has undertaken a number of research projects that have been published in
peer-reviewed journals. For the past 20 years, Dr. Guidotti has been investigating
the relationship between the toxin exposures associated with firefighting and
cancer. Dr. Guidotti has testified as an expert on the etiology of various diseases
related to occupations; on methodology; and on prostate cancer.
Dr. Guidotti testified about Dr. Singer’s two reports and criticized
their lack of methodology. He explained:
In all of the statements from Dr. Singer that I saw, I could not
really discern that any methodology was, in fact, used. They
were all essentially identical.
The language was almost rubber-stamped. The conclusions
were identical. There was no weighing of evidence or
discussion of individual studies. There was no discussion of
alternative explanations or potential exposures to rule them out
or rule them in in any particular case.
It was like they were Xerox’d and only the names were
changed.
8
Dr. Guidotti explained that toxicology is the science of how chemicals affect the body and how
the body responds to those chemicals.
9
N.T., 1/21/2013, at 21-22; R.R. 151. According to Dr. Guidotti, the reports offered
“no evidence that a methodology was, in fact, followed, let alone described.” Id. at
49; R.R. 158.
Dr. Guidotti testified that Dr. Singer’s approach to causation did not
match the generally accepted standard of practice in the field, and it did not
conform to generally accepted scientific principles. Dr. Guidotti stated:
Q. Doctor, do you have an opinion within a reasonable degree
of medical certainty as to whether Dr. Singer selected and
appropriately applied generally accepted scientific
methodologies for the purpose of offering an opinion on
etiology of cancer at a general causation level?
A. Based on the evidence and the opinions that he wrote and
in his deposition and everything else I have seen, my opinion is
that it does not conform to the usual standard.
N.T., 1/21/2013, at 73; R.R. 164. Dr. Guidotti observed that because Dr. Singer
never heard of the Bradford Hill criteria, this suggested that he was “not familiar
with mainstream epidemiology methodology.”9 Id. at 33; R.R. 154. Dr. Guidotti
also observed that what knowledge of etiology Dr. Singer has was “probably
derived from his experience as an oncologist, which is all treatment-oriented.” Id.
When asked about Dr. Singer’s review of the epidemiologic literature,
Dr. Guidotti responded:
Q. Dr. Singer testified that he can draw some inferences from
the number of studies for a proposition and the number of
studies against a proposition.
9
Dr. Guidotti testified that essentially everybody in epidemiologic research uses the Bradford
Hill criteria. N.T., 1/21/2013, at 32; R.R. 153.
10
Specifically, when asked about prostate cancer as an example,
he said there were 16 or 17 articles for an association and two
against, therefore he could [con]clude that there was an
association.
Is that an appropriate methodology for an expert to use in
determining the strengths and weaknesses of epidemiological
studies?
A. No. And I’m speechless that in this day and age somebody
would think it is.
N.T., 1/21/2013, at 26; R.R. 152. Dr. Guidotti explained that when reviewing
epidemiological literature, one needs to analyze the quality of the studies,
including their statistical work, which Dr. Singer testified he did not do. Simply
counting the articles “for” and “against” a connection between a particular agent
and cancer is a meaningless observation. Id.
Dr. Guidotti testified that prostate cancer is the leading type of cancer
among men and opined that prostate cancer is not attributed to occupational
exposures. He explained that it is more “a disease of aging than it is of external
influences.” N.T., 1/21/2013, at 63; R.R. 207. The older the individual, the greater
his risk of developing prostate cancer. Family history is also a factor.10
Dr. Guidotti addressed the problem of detection or screening bias. He
explained this bias as follows:
10
Dr. Guidotti explained that “99 percent of all prostate cancers are one particular tissue type,”
and “unlike other organ systems, the variation and aggressiveness [does not] have to do with
differences in tissue type.” N.T., 1/21/2013, at 11; R.R. 194. In many cases, prostate cancer
develops very quickly, “metastasizes early and is highly aggressive and malignant.” Id. The
other form of it is called indolent, meaning it is slow growing and does not metastasize within
the lifetime of the individual and rarely causes a health problem. Id. at 11-12; R.R. 194.
11
Screening bias applies when you have a screening technology
or some medical intervention that is used to screen for a disease
and it’s applied more reliably or with greater adherence to the
population you’re concerned about compared to the general
population.
N.T., 1/21/2013, at 21; R.R. 197. The PSA test creates a screening bias because
(1) it picks up disease that might never be detected and (2) it picks up disease when
the firefighter is younger. This will inflate the number of cancers among
firefighters when compared to the population at large. Dr. Guidotti further
explained as follows:
[t]he screening bias issue means that it’s very easy to create an
epidemic simply by being more adherent and by being more
effective at screening for the disease, because you’ll pick up
more indolent cases, that the magnitude of the association is
weak.
Even if the cases that were be[i]ng reported, nominal cases,
were, in fact, mainstream malignant behaving prostate cancer,
we’re not talking about an elevation anywhere near close to the
other cancers that I would assert are associated with
firefighting.
Id. at 63-64; R.R. 207.
Employer also offered a report from Janet L. Stanford, Ph.D., a
prostate cancer researcher at the Fred Hutchinson Cancer Research Center in
Seattle, Washington.11 Her report explained the median age at diagnosis of
prostate cancer is 67 years and that the “well-established risk factors for prostate
11
Dr. Stanford also works as a Professor in the Department of Epidemiology at the University of
Washington’s School of Public Health and Community Medicine; is an affiliate member in the
Cancer Prevention Research Program at the Fred Hutchinson Cancer Research Center’s Division
of Public Health Sciences; and is an Adjunct Professor at the University of Washington’s
Department of Urology.
12
cancer include age, race/ethnicity, and family history of prostate cancer.” R.R.
143. The report further explained:
[E]pidemiological studies are based on observational data (as
opposed to a randomized trial where one could randomly assign
individuals to an exposure and follow them up over time to
assess the exposure’s effect on disease incidence) and the
analyses are designed to determine whether or not there is
evidence for an association between a specific exposure and
disease status.
Id. An association does not mean causation, which is difficult to prove in the
absence of a controlled randomized trial. With respect to relating prostate cancer
to occupational exposures, Dr. Stanford’s report explained that environment,
lifestyle and genetics play a role, “but it is not possible to prove causality.” Id. at
144 (emphasis added). Further, “the interaction between genetic and
environmental/lifestyle factors has not yet been well studie[d] due to the large
sample sizes needed to assess potential synergistic or antagonistic effects of
specific gene-environment interactions.” Id. In short, she opined that causation
cannot be proven for prostate cancer because it is a complex disease.
In rebuttal to Dr. Guidotti, Claimant submitted a November 20, 2012,
report from Grace K. LeMasters, Ph.D., M.S., and an affidavit of January 25, 2013.
The LeMasters report observed that Dr. Guidotti did not consider recent published
scientific articles related to firefighters, exposures, and “the possible health effects
on reproductive organs in general, and prostate cancer in particular.” R.R. 119. It
also challenged Dr. Guidotti’s conclusion that detection (or screening) bias
explained the increased risk estimate for firefighters because 30% of the studies
were generally completed before the PSA was in wide use.
13
Decision on Claim Petition
The WCJ credited the testimony of Claimant on his work history.12
The WCJ credited the testimony of Dr. Singer and the report of Dr. LeMasters that
Claimant had been exposed to Group 1 carcinogens during his career as a
firefighter and paramedic. However, the WCJ rejected Dr. Singer’s testimony on
causation, explaining:
a) He has never designed a study protocol, has never
published on the etiology of cancer or on firefighters
specifically and has performed no research on the etiology of
prostate cancer.
b) He did not know the methodologies to use in attempting to
link a given exposure to a given cancer….
c) 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.
d) Regarding the studies on which he relied, he agreed that he
is not an epidemiologist and that he was not able to assess
reliability based on study design. He also was not familiar with
the Bradford Hill criteria used in epidemiological research to
determine a cause and effect relationship between a particular
agent and the development of a disease….
e) He agreed that the [Centers for Disease Control and
Prevention] and other sources have articulated that most
commonly [the] risk factors for prostate cancer were race,
family history and age.
f) In his April 1, 2013[,] addendum report, Dr. Singer had the
understanding that Claimant began working exclusively as a
12
The WCJ has responsibility for questions of credibility, conflicting medical evidence and
evidentiary weight. Sherrod v. Workmen’s Compensation Appeal Board (Thoroughgood, Inc.),
666 A.2d 383, 385 (Pa. Cmwlth. 1995).
14
paramedic in 1989, which was contrary to Claimant’s testimony
that he had not fought a fire since 1980….
g) Dr. Singer never treated or examined the Claimant and the
medical records that he reviewed only went back to 2004. He
agreed that his reports did not mention other potential causes
other than firefighting that contributed to the development of
cancer, such as potential exposures at Claimant’s second job,
his ethnic background, diet, geography and possible exposures
during military service.
h) In his April 1, 2013[,] addendum report, he agreed that
Claimant had a significant smoking history, but opined that
smoking was not a risk factor for prostate cancer. This opinion
conflicted with his testimony, in which he agreed that all of the
Group 1 carcinogens outlined in his report as exposures for
firefighters were also in cigarette smoke.
WCJ Decision at 19-20; Finding of Fact No. 19. The WCJ credited Dr. Guidotti’s
testimony that Dr. Singer did not use accepted epidemiologic standards for a
general causation opinion and that “any elevated risks for prostate cancer among
firefighters might also be explained by other factors, such as detection bias,
ethnicity and geography.” Id. at 20; Finding of Fact No. 20. Based upon these
findings, the WCJ denied the claim petition.
The WCJ reached several legal conclusions. First, because Claimant
retired prior to his cancer diagnosis, his cancer did not cause a post-retirement
compensable disability and, thus, he was not entitled to use the statutory
presumptions available to claimants seeking compensation for an occupational
disease. Second, Claimant did not prove that prostate cancer is an occupational
disease under Section 108(r) of the Act because his evidence did not show that
exposure to Group 1 carcinogens has been linked to prostate cancer. Third,
because Claimant did not demonstrate that prostate cancer is an occupational
disease for firefighters, he had to prove that his prostate cancer was caused by his
15
workplace exposures, such as Class 2A carcinogens, as allowed under Section
108(n) of the Act;13 however, his medical evidence was not credited. In any case,
assuming Claimant was entitled to a presumption that his prostate cancer was
caused by firefighting, the WCJ concluded that Employer’s evidence rebutted it.
Claimant appealed to the Board, and it affirmed. It upheld the WCJ’s
factual findings and agreed with the WCJ that Claimant did not prove that prostate
cancer is an occupational disease under Section 108(r) of the Act. The Board also
agreed that Claimant was not entitled to use the statutory presumption to prove his
claim, albeit for another reason than used by the WCJ.14 To use the statutory
presumption in Section 301(f) of the Act,15 a claimant must file his claim petition
within 300 weeks of the last day of occupational exposure to the carcinogen. Id.
Claimant retired in May 2006, and he did not file his claim petition until June 13,
2012, which was 315 weeks after his last day of employment as a firefighter. The
13
Under Section 108(n) of the Act, the term “occupational disease” includes
[a]ll other diseases (1) to which the claimant is exposed by reason of his
employment, and (2) which are causally related to the industry or occupation, and
(3) the incidence of which is substantially greater in that industry or occupation
than in the general population.
77 P.S. §27.1(n).
14
The WCJ found that because Claimant retired prior to his diagnosis, he could not benefit from
a causation presumption set forth in Section 301(e) of the Act, which requires the occupational
disease to cause a disability, i.e., a loss of earning power. 77 P.S. §413. See n.19, infra, and
accompany text.
15
In a footnote, the Board questioned whether Claimant timely filed his claim petition under Act
46, because, while Claimant indicated he had some periodic exposure to smoke while working as
a paramedic, he testified that he last actively fought fires as a firefighter in 1980. Board Opinion
at 17 n. 7. The Board wrote: “Assuming December 31, 1980, was his last day of employment
with exposure to the hazard, as a firefighter, he did not file his Claim Petition until June 13,
2012, 1,641 weeks later. He therefore appears to have filed his Claim Petition outside of the
delineated 600 weeks, making his claim untimely.” Id.
16
Board held that Claimant did not satisfy the deadline for being able to use the
presumption in Section 301(f) of the Act. Claimant then petitioned for this Court’s
review.
Appeal
On appeal,16 Claimant raises three arguments. First, Claimant
contends that the Board erred in construing the Act to require a firefighter seeking
compensation for cancer pursuant to Section 108(r) of the Act to file his claim
petition within 300 weeks of his last day of work. Second, Claimant argues that if
Section 301(f) of the Act imposes a deadline for filing a claim petition for
occupational disease, then the discovery rule should apply. Third, Claimant
contends that Employer’s medical evidence was not competent and did not rebut
the statutory presumption in favor of compensating his prostate cancer as an
occupational disease.
Analysis
We begin with a review of the statutory provisions relevant to
occupational disease. Section 301(c)(2) of the Act states that a compensable
“injury” includes “occupational disease as defined in section 108 of this act.” 77
P.S. §411(2). In turn, Section 108 of the Act lists a number of occupational
diseases. In 2011, the General Assembly enacted what is known as Act 46,17
which, inter alia, added cancer to the list of occupational diseases for firefighters.
This addition is found in Section 108(r), and it states:
16
This Court’s review determines whether the necessary findings of fact are supported by
substantial evidence, whether Board procedures were violated, and whether constitutional rights
were violated or an error of law was committed. City of Philadelphia v. Workers’ Compensation
Appeal Board (Brown), 830 A.2d 649, 653 n.2 (Pa. Cmwlth. 2003).
17
Act of July 7, 2011, P.L. 251, No. 46.
17
Cancer suffered by a firefighter which is caused by exposure to
a known carcinogen which is recognized as a Group 1
carcinogen by the International Agency for Research on
Cancer.
77 P.S. §27.1(r). Recently, in City of Philadelphia Fire Department v. Workers’
Compensation Appeal Board (Sladek), 144 A.3d 1011 (Pa. Cmwlth. 2016) (en
banc), this Court vacated the Board’s award of benefits to a firefighter with
malignant melanoma because the award was based upon an incorrect construction
of Section 108(r) of the Act. In its adjudication, the Board had construed Section
108(r) to mean that a firefighter’s cancer is presumed work-related if the firefighter
was exposed to a Group 1 carcinogen at work, regardless of whether the
firefighter’s cancer is a type of cancer known to be caused by exposure to Group 1
carcinogens. We rejected the Board’s construction of Section 108(r) of the Act
and held, instead, that Section 108(r) requires the firefighter to show that the Group
1 carcinogens to which he was exposed have been shown to cause the type of
cancer for which the claimant has been diagnosed.18 In Sladek, the WCJ did not
rule on whether the claimant’s evidence showed that his cancer, i.e., melanoma, is
a type of cancer caused by exposure to Group 1 carcinogens; accordingly, this
Court remanded. Sladek also clarified that only after a firefighter establishes that
his cancer is an occupational disease under Section 108(r) of the Act do the
rebuttable presumptions in Sections 301(e) and (f) come into play.
18
In this case, a differently composed Board construed Section 108(r) of the Act as this Court
construed it in Sladek, at least with respect to the need for the firefighter to show his type of
cancer can be caused by Group 1 carcinogens.
18
Section 301(e) of the Act establishes a “presumption regarding
occupational disease” that applies to any occupational disease sustained by any
employee in any line of work. It states:
If it be shown that the employe, at or immediately before the
date of disability, was employed in any occupation or industry
in which the occupational disease is a hazard, it shall be
presumed that the employe’s occupational disease arose out of
and in the course of his employment, but this presumption shall
not be conclusive.
77 P.S. §413 (emphasis added).19 However, there is a special presumption where
the occupational disease is cancer and the employee is a firefighter. Act 46 added
Section 301(f) to the Act related to compensation for cancer suffered by a
firefighter. It states 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. Any
claim made by a member of a volunteer fire company shall be
based on evidence of direct exposure to a carcinogen referred to
in section 108(r) as documented by reports filed pursuant to the
Pennsylvania Fire Information Reporting System and provided
that the member’s claim is based on direct exposure to a
carcinogen referred to in section 108(r). Notwithstanding the
limitation under subsection (c)(2) with respect to disability or
19
Section 301(e) was added by the Act of October 17, 1972, P.L. 930, No. 223.
19
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 section 108(r) may be made within six
hundred weeks after the last date of employment in an
occupation or industry to which a claimant was exposed to the
hazards of disease. The presumption provided for under this
subsection shall only apply to claims made within the first three
hundred weeks.
77 P.S. §414 (emphasis added).
Here, the Board construed Section 301(f) of the Act to require the
firefighter to file a claim petition within 300 weeks of his last day of employment
in order to take advantage of the statutory presumption therein that his cancer was
work-related. The Board also observed that if a firefighter files a claim petition
before 600 weeks have elapsed, then the firefighter may still prove that his cancer
is an occupational disease.20 However, he cannot take advantage of the
presumption in Section 301(f) in making this demonstration.
20
Section 301(a) of the Act makes the employer “liable for compensation for personal injury ...
[incurred] in the course of employment....” 77 P.S. §431. Section 301(c)(1) of the Act defines
“injury” and “personal injury” to include “disease or infection.” 77 P.S. §411(1). Section
301(c)(2) also provides as follows:
The terms “injury,” “personal injury,” and “injury arising in the course of his
employment,” as used in this act, shall include, unless the context clearly requires
otherwise, occupational disease as defined in section 108 of this act.
77 P.S. §411(2). Section 108 of the Act enumerates specific occupational diseases, and it
includes a “catch-all” provision that emcompasses:
(n) All other diseases (1) to which the claimant is exposed by reason of his
employment, and (2) which are causally related to the industry or occupation, and
(3) the incidence of which is substantially greater in that industry or occupation
than in the general population.
(Footnote continued on the next page . . .)
20
Claimant contends that his claim petition was timely under the
discovery rule, because he was diagnosed with prostate cancer within 300 weeks of
his last day of work. Thus, he is entitled to the rebuttable presumption found in
Section 301(f) of the Act.
Employer responds, first, that Claimant filed his claim petition too
late. Claimant stopped working as a firefighter on December 31, 1980, to take up
work as a certified paramedic. Section 301(f) of the Act requires a firefighter
seeking compensation for his cancer to file a claim within 600 weeks of the
firefighter’s last date of exposure to a Group 1 carcinogen. Assuming Claimant
was exposed to a Group 1 carcinogen on his last day as a firefighter, he filed his
claim petition 1,641 weeks, or 31 years, later. Claimant’s claim petition should
have been dismissed as untimely filed.21
(continued . . .)
77 P.S. §27.1(n). Where a claimant fails to make a case under Section 108(r) of the Act, he may
show that it was an occupational disease under the catch-all provision in Section 108(n) of the
Act.
21
Employer argues that Section 301(f) of the Act does not supplant the statute of repose found in
Section 315 of the Act, 77 P.S. §602. Section 315 of the Act states, in relevant part:
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.... However, in cases of injury resulting from ionizing radiation in which
the nature of the injury or its relationship to the employment is not known to the
employe, the time for filing a claim shall not begin to run until the employe
knows, or by the exercise of reasonable diligence should know, of the existence of
the injury and its possible relationship to his employment. The term “injury” in
this section means, in cases of occupational disease, disability resulting from
occupational disease.
77 P.S. §602 (emphasis added).
21
Employer argues that, in any case, Claimant misstates Section 301(f)
of the Act as allowing a claimant to file a claim within 300 weeks of his cancer
diagnosis. Section 301(f) does not use the word “diagnosis,” let alone make the
date of a diagnosis relevant. Further, the 300-week requirement sets the deadline
for using the presumption in Section 301(f) of the Act.
This Court considered these issues in Earl Hutz v. Workers’
Compensation Appeal Board (City of Philadelphia), __ A.3d __ (Pa. Cmwlth., No.
2140 C.D. 2015, filed September 7, 2016). In Hutz, the claimant, while working
for the City as a firefighter, was diagnosed with prostate cancer in February 2006.
His treatment caused him to miss approximately three months of work. He retired
from the City in January 2008. In April 2012, the claimant filed a claim petition,
alleging that his prostate cancer resulted from his exposure to IARC Group 1
carcinogens while working as a firefighter. The Board held that because the
claimant filed his claim petition 318 weeks after his last date of exposure, he could
not take advantage of the presumption in Section 301(f) of the Act. Nevertheless,
the claimant did file within 600 weeks of his last day of work as a firefighter and,
thus, his petition was not time-barred.
This Court affirmed for two reasons. First, we held that a claim
petition filed more than 300 weeks after the firefighter’s last day of exposure bars
the use of the presumption in Section 301(f) of the Act. Second, we held that
where the firefighter fails to show that his cancer is an occupational disease under
Section 108(r) of the Act, he may not use the presumption in Section 301(f). The
timeliness of the claim petition, therefore, was simply irrelevant.
On the timeliness, this Court stated as follows:
The issue is not whether the statutory language places a
limitation on the time to file a firefighter cancer claim; rather,
22
the issue is whether the statutory language limits the time frame
in which the presumption of compensability applies.
Hutz, __ A.3d at __, Slip Op. at 33. This Court further explained as follows:
[The c]laimant filed his claim petition approximately 318
weeks after his radical prostatectomy in March 2006. See WCJ
Op., F.F. No. 1i; Bd. Op. at 15. [The c]laimant’s disability
arising from prostate cancer arose in March 2006, and it
extended for three months (approximately 12 weeks). After
this period, [the c]laimant was not disabled by an occupational
disease. Any exposure after his return to work in 2006 and
before his retirement in 2008 could not be causally related to
his prostate cancer, which was already cured by surgery and
therapy before his return to work. Bd. Op. at 15, n.5.
Therefore, the Board determined that the WCJ did not err in
ruling [the c]laimant ineligible for Section 301(f)’s presumption
of compensability. Bd. Op. at 15.
As the Board noted, the pivotal question in this case is
causation. Although [the c]laimant’s cancer occurred in 2006,
he filed his claim petition in 2012, outside of the 300-week
period entitling him to the rebuttable presumption of
compensability in Section 301(f) of the Act.
Hutz, __ A.3d at __, Slip Op. at 34-35.
Second, we held that the timeliness of the claimant’s claim petition
was irrelevant, even if the discovery rule were to apply.22 This is because the
presumption in Section 301(f) of the Act applies only where the firefighter has
shown that his cancer is an occupational disease under Section 301(f) of the Act.
We explained as follows:
22
The discovery rule “is a judicially created tenet of statutory construction applicable to statutes
of limitations which operates to toll the running of a statute where the existence of a cause of
action cannot reasonably be ascertained within the prescribed time.” Levenson v. Souser, 557
A.2d 1081, 1086 (Pa. Super. 1989) (citations omitted).
23
In any event, [the c]laimant failed to establish a causal
relationship between his prostate cancer and his occupational
exposure to a carcinogen recognized as a Group 1 carcinogen
by the IARC. Thus, regardless of the date he filed his claim
petition, the presumption of compensability in Section 301(f) of
the Act is unavailable to [the c]laimant. Sladek. Therefore, any
further discussion of whether the discovery rule applies to the
300-week filing limitation period for the application of the
presumption of compensability is unnecessary in this case. As
such, this issue is moot. See Battiste v. Borough of G.
McKeesport, 94 A.3d 418 (Pa. Cmwlth. 2014)[].
Hutz, __ A.3d __, Slip Op. at 39.
Notably, the inability of the firefighter to prove that his cancer is an
occupational disease under Section 108(r) of the Act does not mean that he cannot
pursue a claim for compensation. The Act allows any employee to pursue
compensation for any disease “causally related to [his] industry or occupation.” 77
P.S. §27.1(n). Thus, using what the WCJ termed “general causation” principles,
Claimant had the opportunity to prove that his cancer was caused by his
occupation. In this regard, Claimant was not limited to showing that exposures to
Group 1 carcinogens caused his cancer. He did identify the Group 2A carcinogens
to which he was also exposed. When seeking compensation for an occupational
disease under Section 108(n) of the Act, the presumption in Section 301(f) of the
Act is irrelevant; rather, it is the presumption in Section 301(e) of the Act that
applies. However, Claimant’s medical evidence was rejected. Accordingly, the
presumption in Section 301(e) never came into play.23
23
In his final issue, Claimant argues that Employer’s expert opinion was incompetent. Because
Claimant did not establish a causal relationship between his prostate cancer and his occupational
exposure to a Group 1 carcinogen, the burden never shifted to Employer. See Hutz, __ A.3d at
__, Slip Op. at 43. We need not address this issue.
24
Here, as in Hutz, Claimant did not demonstrate that prostate cancer is
an occupational disease for firefighters under Section 108(r) of the Act.
Accordingly, the presumption in Section 301(f) of the Act was unavailable to
Claimant, and the discovery rule is irrelevant.
Conclusion
In sum, Claimant’s medical evidence did not establish a causal
relationship between prostate cancer and Group 1 carcinogens, and this was
necessary in order to establish that his prostate cancer is an occupational disease
under Section 108(r) of the Act. As a result, the presumption of compensability in
Section 301(f) of the Act was unavailable to Claimant. Claimant’s medical
evidence was also inadequate to prove his particular cancer was caused by
workplace exposures to other carcinogens under Section 108(n) of the Act. As
such, the presumption in Section 301(e) of the Act was not available to assist
Claimant in making a case that his prostate cancer was a compensable occupational
disease.
For these reasons, we affirm the Board.
_____________________________________
MARY HANNAH LEAVITT, President Judge
25
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Peter Demchenko, :
Petitioner :
:
v. : No. 2164 C.D. 2015
:
Workers’ Compensation Appeal :
Board (City of Philadelphia), :
Respondent :
ORDER
AND NOW, this 26th day of October, 2016, the order of the Workers’
Compensation Appeal Board dated October 29, 2015, in the above-captioned
matter is hereby AFFIRMED.
______________________________________
MARY HANNAH LEAVITT, President Judge