T. Logan v. WCAB (City of Philadelphia)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Thomas Logan, :

Petitioner :

:

v. : No. 2605 C.D. 2015

: Submitted: September 30, 2016

Workers' Compensation Appeal :

Board (City of Philadelphia), :

Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE SIMPSON FILED: March 9, 2017

In this case, another in a series of appeals involving cancer claims

under Section 108(r) of the Workers’ Compensation Act (Act),1 Thomas Logan

(Claimant), a retired firefighter, petitions for review of an order of the Workers’

Compensation Appeal Board (Board) affirming an order of Workers'

Compensation Judge Scott Olin (WCJ) denying his claim for prostate cancer

caused by occupational exposure to known carcinogens during his employment as

a firefighter. Claimant contends the decisions of the WCJ and Board are

unsupported by competent medical evidence and inconsistent with the applicable

case law. For the reasons that follow, we are compelled to affirm.

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).

I. Background

A. Claim and Penalty Petitions

In April 2012, Claimant filed a claim petition under Section 108(r) of

the Act alleging that he sustained prostate cancer in February 1997 as a result of

exposures to IARC (International Agency for Research on Cancer) Group I

carcinogens while working as a firefighter for the City of Philadelphia (Employer).

Claimant sought payment of all related medical bills, including ongoing medical

bills, and total disability benefits for the period of February 11 through May 1,

1997. In October 2012, Claimant filed a penalty petition alleging Employer

violated the Act by failing to provide discoverable material.

B. Evidence

Based upon an extensive review of the evidence presented by both

parties, the WCJ dismissed Claimant’s claim and penalty petitions. Ultimately, the

WCJ determined Claimant’s medical evidence failed to establish his prostate

cancer was causally related to his firefighting duties. To that end, the WCJ

rejected Claimant’s medical testimony as to causation of his cancer and accepted

Employer’s medical testimony that prostate cancer is much more a disease of aging

than it is of external influences.

Claimant, 68 years old at the time of his testimony, stated he worked

for Employer as a firefighter for 34 years. Claimant underwent a physical

examination when hired in 1970; he had no physical restrictions and no record of

cancer. During his career, Claimant spent five years at Engine 53 and the

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remainder at Ladder 27. Both stations used diesel vehicles; Claimant therefore

encountered fuel emissions every shift he worked throughout his career.

Claimant fought fires his entire career; he spent no time in an office

position. In total, Claimant responded to a couple thousand fires and suffered

smoke exposure at each one. These included interior, exterior and transformer

fires, which all involved exposure to several Group 1 carcinogens.

In 1997, while assigned to Ladder 27, Claimant’s family doctors

diagnosed him with prostate cancer following a PSA (prostate specific antigen) test

and a biopsy. Claimant underwent a radical prostatectomy and missed about six

months of work. Claimant last worked as a firefighter in 2004.

In support of his claim petition, Claimant submitted reports and

deposition testimony from Dr. Barry L. Singer (Claimant’s Expert), a physician

board certified in internal medicine, hematology and medical oncology.

Claimant’s Expert reviewed Claimant’s treatment records and Claimant’s affidavit

regarding his occupational history and exposure. Claimant’s Expert also reviewed

various studies relating firefighting with an increased risk of cancer, including

specific studies relating prostate cancer to firefighting. Ultimately, Claimant’s

Expert opined that Claimant’s occupational exposure to Group 1 carcinogens while

working for Employer was considerable and constituted a substantial contributing

factor in the development of Claimant’s prostate cancer.

3

In response to Claimant’s evidence, Employer submitted the

deposition testimony of Dr. Tee L. Guidotti (Employer’s Expert), a physician

board certified in internal medicine, pulmonary medicine and occupational

medicine. See Dep. of Dr. Guidotti, 1/21/13 (Guidotti Dep.) at 3-20; Reproduced

Record (R.R.) at 184-88. Employer’s Expert opined there is insufficient evidence

to support a conclusion that, as a matter of general causation, firefighting causes

prostate cancer. Guidotti Dep. at 63-64; R.R. at 240. Therefore, Employer’s

Expert did not offer an opinion as to the specific causation of any firefighter’s

prostate cancer. Guidotti Dep. at 66-67; R.R. at 241.

C. WCJ’s Decision and Order

Initially, the WCJ noted that Claimant filed his April 2012 claim

petition within 600 weeks of his last day of work as a firefighter (last day of

exposure to hazards of the disease) as required by Section 301(f) of the Act,2

(firefighters’ cancer claims may be filed under Section 108(r) within 600 weeks

after the last date of employment with exposure to the hazard). However, because

Claimant filed his claim more than 300 weeks after his last date of exposure, the

WCJ determined Claimant was not entitled to Section 301(f)’s rebuttable

presumption that his cancer was causally related to his firefighter duties. WCJ

Op., 9/15/14, at 11.

Moreover, after reviewing the medical evidence presented, the WCJ

rejected Claimant’s Expert’s opinion as to causation as not credible and

unpersuasive. In so doing, the WCJ found: (a) Claimant’s Expert failed to

2

Added by the Act of July 7, 2011, P.L. 251, 77 P.S. §414.

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consider significant risk factors including race, age and family history; (b)

Claimant’s Expert’s cited medical sources and studies did not consistently support

his causation opinion; (c) Claimant’s Expert admitted he lacked expertise in

urology, occupational medicine, toxicology or epidemiology; conversely,

Employer’s Expert is board certified in occupational medicine, has a degree in

toxicology and epidemiology, and he performed research studies on firefighters

and cancer; and, (d) Claimant’s Expert is not Claimant’s treating physician and

never examined Claimant or consulted with Claimant’s treating physicians;

additionally, Claimant’s Expert appeared too willing to link prostate cancer to

firefighting (in reviewing 30 cases of cancer in firefighters, Claimant’s Expert

linked the cancer to firefighting duties in virtually every instance). WCJ’s Op. at

13-14.

Additionally, the WCJ accepted as credible Employer’s Expert’s

opinion that prostate cancer is just different from other cancers in that a “large

swath” of the male population will eventually be diagnosed with this condition

regardless of their occupation. WCJ’s Op. at 14. In particular, the WCJ accepted

Employer’s Expert opinion that prostate cancer is much more a disease of aging

than of external influences. Id.

Consequently, the WCJ determined Claimant failed to establish his

duties as a firefighter caused his prostate cancer. Conclusion of Law (C.L.) No. 1.

The WCJ also determined Employer did not violate any provisions of the Act.

C.L. No. 2. Therefore, the WCJ dismissed Claimant’s claim and penalty petitions.

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D. Board’s Decision and Order

Claimant appealed the dismissal of his claim petition to the Board. In

affirming the WCJ, the Board observed that Claimant did not file his claim petition

until April 20, 2012, more than 792 weeks after his date of alleged disability on

February 11, 1997. See Bd. Op., 12/9/15, at 9. As such, the Board determined

Claimant failed to make a claim within the 600-week period in Section 301(f) of

the Act, 77 P.S. §414. For the same reason, the Board noted that Claimant was not

entitled to the presumption of compensability in Section 301(f) for cancer claims

filed within 300 weeks from Claimant’s last exposure to the hazards of the disease.

Bd. Op. at 9.

Further, the Board determined the WCJ articulated objective reasons

for rejecting Claimant’s Expert’s testimony as to causation, regardless of

Employer’s Expert’s testimony. See Bd. Op. at 17-18.

For these reasons, the Board affirmed the WCJ’s dismissal of

Claimant’s claim petition. Claimant petitions for review.3

II. Issues

Claimant presents three primary issues for our review. First, Claimant

contends the Board erred in misinterpreting Section 301(f) of the Act as requiring

that a firefighter must file a claim petition within 300 weeks of his last

3

Our review is limited to determining whether the WCJ’s findings of fact were supported

by substantial evidence, whether an error of law was committed or whether constitutional rights

were violated. Phoenixville Hosp. v. Workers’ Comp. Appeal Bd. (Shoap), 81 A.3d 830 (Pa.

2013).

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occupational exposure in order for the rebuttable presumption of compensability to

apply. Second, Claimant asserts, even assuming Section 301(f) creates a limitation

on the time in which a firefighter diagnosed with cancer has to file a claim petition,

the discovery rule applies and therefore extends the time for filing. Third,

Claimant maintains the Board’s determination that Claimant failed to establish an

entitlement to benefits and that Employer’s medical evidence rebutted the statutory

presumption of compensability in Section 301(f) is not supported by competent

evidence or pertinent legal authority.

In addition to the issues raised by Claimant, Employer contends

Claimant failed to timely file his claim petition within 600 weeks of the last day he

could have had relevant exposure to a Group 1 carcinogen. Rather, Employer

asserts, Claimant filed his claim petition in April 2012, more than 790 weeks after

his early 1997 cancer diagnosis. Therefore, Employer argues, Claimant’s claim

petition must be ruled untimely under Section 301(f) of the Act.

III. Discussion

A. Relevant Statutory Provisions; Sladek

In accord with our prior decisions involving cancer claims under the

2011 amendments to the Act, we begin with a review of the relevant statutory

provisions and applicable case law. First, Section 301(c) of the Act, as amended

by Act 46, pertinently provides (with emphasis added):

(1) The terms ‘injury’ and ‘personal injury,’ as used in

this act, shall be construed to mean an injury to an

employe, regardless of his previous physical condition,

except as provided under subsection (f), arising in the

course of his employment and related thereto, and such

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disease or infection as naturally results from the injury

….

(2) 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. Provided, That whenever occupational

disease is the basis for compensation, for disability or

death under this act, it shall apply only to disability or

death resulting from such disease and occurring within

three hundred weeks after the last date of employment in

an occupation or industry to which he was exposed to

hazards of such disease …. The employer liable for

compensation provided by … section 108, subsections

(k), (l), (m), (o), (p), (q) or (r), shall be the employer in

whose employment the employe was last exposed for a

period of not less than one year to the hazard of the

occupational disease claimed. …

77 P.S. §411(2).

Act 46 also amended Section 108 and added Section 301(f) of the Act.

Section 108, which lists compensable occupational diseases, now includes (with

emphasis added):

(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 [IARC].

77 P.S. §27.1.

Section 301(f) of the Act applies specifically to claims for

compensation for cancer suffered by a firefighter and caused by direct exposure to

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certain carcinogens while performing firefighter duties. Section 301(f) provides

(with emphasis added):

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. … 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 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 the disease. The presumption provided for

under this subsection shall only apply to claims made

within the first three hundred weeks.

77 P.S. §414.

In City of Philadelphia Fire Department v. Workers' Compensation

Appeal Board (Sladek), 144 A.3d 1011 (Pa. Cmwlth., 2016) (en banc), appeal

granted, ___ A.3d ___ (Pa., No. 405 EAL 2016, filed March 1, 2017), we vacated

an award of benefits under Section 108(r) for malignant melanoma contracted by a

firefighter based on the Board’s misinterpretation of the language in that provision.

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In Sladek, we determined the Board misinterpreted Section 108(r) as indicating the

General Assembly established a causal relationship between any Group 1

carcinogen and any type of cancer. We noted the Board erroneously reasoned that

the claimant need not show exposure to a particular carcinogen in Group 1 or

establish the carcinogens to which he was exposed specifically caused his

malignant melanoma. See Sladek, 144 A.3d at 1021.

To the contrary, we observed, the General Assembly placed the words

caused by between cancer suffered by a firefighter and exposure to a known Group

1 carcinogen for a reason. Therefore, a claimant must prove that his cancer is the

type of cancer caused by the Group I carcinogens to which he was exposed. Id. If

the claimant can establish his type of cancer is an occupational disease under

Section 108(r), then the rebuttable presumptions in Sections 301(e) and (f) come

into play. Id.

Further, in Sladek we reasoned that the presumption of causation in

Section 301(e)4 of the Act relieves the firefighter of the need to prove his

workplace exposure rather than some other reason caused his cancer. If the

firefighter can establish four years of continuous service and the absence of cancer

4

Section 301(e) of the Act, 77 P.S. §413, which applies to occupational diseases

generally, provides (with emphasis added):

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.

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prior to that service, he is entitled to compensation under Section 301(f). Sladek,

144 A.3d at 1020.

Accordingly, we vacated the Board’s order in Sladek and remanded

for a determination as to whether the claimant’s medical evidence established that

melanoma is a type of cancer caused by the Group 1 carcinogens to which the

claimant suffered a work-related exposure.

B. Hutz; Demchenko; Fargo

Following Sladek, this Court filed Hutz v. Workers’ Compensation

Appeal Board (City of Philadelphia), 147 A.3d 35 (Pa. Cmwlth. 2016), petition for

allowance of appeal pending (Pa., No. 444 EAL 2016, filed October 3, 2016) and

Demchenko v. Workers' Compensation Appeal Board (City of Philadelphia), 149

A.3d 406 (Pa. Cmwlth. 2016), affirming the denial of Section 108(r) claims for

compensation for prostate cancer allegedly caused by exposure to carcinogens as a

firefighter. Similar to the present case, in Hutz and Demchenko the claimants

failed to establish a causal relationship between their prostate cancer and their

occupational exposure as a firefighter to Group 1 carcinogens.

In Hutz and Demchenko we addressed and rejected arguments very

similar, if not identical, to Claimant’s primary arguments here. First, as discussed

in Sladek, before a claimant may avail himself of the rebuttable presumption of

compensability in Section 301(f) of the Act, he must first establish his cancer is an

occupational disease under Section 108(r) by proving his is the type of cancer

caused by the Group 1 carcinogens to which he was exposed in the workplace.

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Section 301(f) also requires that a claim petition be filed within 300 weeks of the

claimant’s last occupational exposure to a Group 1 carcinogen for the presumption

of compensability to apply.

Further, in Fargo v. Workers' Compensation Appeal Board (City of

Philadelphia), 148 A.3d 514 (Pa. Cmwlth. 2016), petition for allowance of appeal

pending (Pa., No. 486 EAL 2016, filed November 4, 2016), we reaffirmed that Act

46 defined a distinct limitations period in Section 301(f), which mandates that an

occupational disease claim under Section 108(r) be filed within 600 weeks of the

last date of workplace exposure to a Group 1 carcinogen. Citing Hutz, we noted

the key difference between the limitations periods in Sections 301(c)(2) and 301(f)

is not the date upon which the periods start, but rather what must take place before

the periods end. In the case of Section 301(c)(2), disability or death from the

disease must occur within 300 weeks. In the case of Section 301(f), the claimant

must file the claim within 600 weeks of the last date of workplace exposure to a

Group 1 carcinogen. We determined this approach was consistent with our

rationale in Hutz, wherein we observed that the date of filing of the claim was

determinative as to the applicability of the 300-week presumption of

compensability in Section 301(f).

We then summarized the requirements of Section 301(f)’s two-tiered

limitations period for Section 108(r) occupational disease claims as follows:

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

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301(f). However, if the claimant does not file the claim

until more than 600 weeks after the date of last

workplace exposure, the claimant is foreclosed from

bringing that claim in its entirety.

Fargo, 148 A.3d at 520.

We also rejected Claimant’s contention that if Section 301(f) requires

a claim under Section 108(r) be filed within 600 weeks of the last date of

workplace exposure, then it is subject to a discovery rule to extend the time for

filing. In short, we agreed with the Board that the 600-week period in Section

301(f) acts as a statute of repose and is not subject to the discovery rule, which

applies to the three-year statute of limitations in Section 315 of the Act, 77 P.S.

§602. See Westinghouse Elec. Corp./CBS v. Workers’ Comp. Appeal Bd.

(Korach), 883 A.2d 579, 588 n.11 (Pa. 2005) (a statute of repose, unlike a statute

of limitations, is substantive rather than procedural and extinguishes both the

remedy and the cause of action; thus, a statute of repose may also prevent the

accrual of a cause of action where the final element necessary for its creation

occurs beyond the time period established by the statute).

In light of our decisions in Sladek, Hutz, Demchenko and Fargo we

review the issues raised in the present appeal.

C. Timeliness of Claim Petition

We first address Employer’s contention that Claimant’s claim petition

was untimely under Section 301(f) of the Act because he filed it more than 600

13

weeks after his prostate cancer diagnosis in January 1997. As noted in Fargo, Hutz

and again recently in Lucas v. Workers' Compensation Appeal Board (City of

Sharon) (Pa. Cmwlth., No. 2606 C.D. 2015, filed December 20, 2016)

(unreported), petition for allowance of appeal pending (Pa., No. 27 EAL 2017,

filed January 17, 2017), Section 301(f) mandates that a cancer claim under Section

108(r) be filed within 600 weeks of the last date of workplace exposure to a Group

1 carcinogen.

Here, the Board noted, Claimant received a prostate cancer diagnosis

on February 1997, more than 790 weeks prior to the filing of his claim petition in

April 2012. Thus, the Board opined that Claimant failed to make a timely claim

within the 600-week period specified in Section 301(f). Bd. Op. at 9. The dates in

the Board’s opinion are consistent with the record. Claimant testified his family

doctors diagnosed him with prostate cancer on February 11, 1997. WCJ Op.,

Finding of Fact (F.F.) No. 4; Dep. of Thomas Logan, 11/9/12 (Logan Dep.), at 21-

22. A couple of months after diagnosis, Claimant underwent surgery. F.F. No. 4;

Logan Dep. at 24. As a result, Claimant missed approximately six months of

work. F.F. No. 4; Logan Dep. at 24. As reflected by his claim petition, Claimant’s

wage loss attributable to his prostate cancer ended May 1, 1997.

However, Claimant seeks ongoing medical benefits and there is no

evidence in the record that Claimant fully recovered from his cancer. To the

contrary, Claimant’s Expert noted in his April 16, 2012 report that following his

radical prostatectomy in 1997, his PSA was low at less than .1 nanograms per ml.

See Report of Dr. Barry L Singer, 4/16/12, at 2; R.R. at 60. However, Claimant’s

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PSA rose from .083 in February 2001 to 3.1 in August 2011. Id. In addition,

Claimant’s Expert indicated Claimant “remains at a significiant risk of dying from

this disease.” Id.

In light of Claimant’s residual prostate cancer, we agree with the

WCJ’s initial determination that Claimant timely filed his 2012 claim petition

within 600 weeks of his last day of exposure to carcinogens as a firefighter in

2004. See WCJ Op. at 11. Consequently, we reject Employer’s contention that

Claimant’s claim petition was untimely under Section 301(f).5

D. Claimant’s Contentions

1. Section 301(f)’s Presumption of Compensability

Claimant first contends the Board erred in misinterpreting Section

301(f) of the Act as requiring that a firefighter must file a claim petition within 300

weeks of his last occupational exposure in order for the rebuttable presumption of

compensability to apply. Claimant asserts Act 46 placed cancer suffered by

firefighters caused by occupational exposure to carcinogens on Section 108’s list

of occupational diseases compensable under Section 301(c)(2) of the Act. Section

301(c)(2) requires that an occupational disease must “occur” or manifest within

300 weeks of the last date of the claimant’s exposure to the hazard. 77 P.S.

§411(2). The newly added Section 301(f), Claimant argues, modified the 300-

week manifestation period by extending it to 600 weeks. Claimant further argued

that the rebuttable presumptions of causation in Section 301(e) and compensability

5

Employer in this case did not raise a retroactivity challenge to Section 301(f) of the Act.

15

in Section 301(f) are available for firefighters with a claimable disease diagnosed

within 300 weeks of their last work-related exposure to carcinogens.

In support of his position, Claimant argues the Supreme Court

rejected the Board’s interpretation of the 300-week manifestation period in Section

301(c)(2) of the Act as requiring a claim petition be filed within that time period.

See City of McKeesport v. Workers' Comp. Appeal Bd. (Miletti), 746 A.2d 87 (Pa.

2000) (proper focal point under Section 301(c)(2) is whether the occupational

disease occurred within 300 weeks of the claimant’s last exposure, regardless of

when the claim was filed). To that end, Claimant asserts, the three-year statute of

limitations in Section 315 of the Act, 77 P.S. §602, does not begin to run in

occupational disease cases until the claimant learns, by a competent medical

diagnosis, that his disability is work-related. Price v. Workmen's Comp. Appeal

Bd. (Metallurgical Resources), 626 A.2d 114 (Pa. Cmwlth. 1993). Under the

WCJ’s erroneous interpretation, Claimant maintains, a firefighter diagnosed with

cancer would have to file a claim petition within 300 weeks of the occurrence of

the disease in order to qualify for the rebuttable presumption of causation

regardless of whether the firefighter knows the disease is work-related.

We disagree. We distinctly addressed and rejected these precise

issues in Sladek, Hutz, Demchenko and Fargo. Most importantly, as discussed in

Sladek, before a claimant may avail himself of the rebuttable presumption of

compensability in Section 301(f) of the Act, he must first establish his cancer is an

occupational disease under Section 108(r) by proving his cancer is the type of

cancer caused by the Group 1 carcinogens to which he was exposed in the

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workplace. Given the WCJ’s rejection of Claimant’s Expert’s opinion that

Claimant’s prostate cancer was causally related to his exposure to Group 1

carcinogens as a firefighter, Claimant is not entitled to the evidentiary

presumptions in Section 301(e) and (f) of the Act. Demchenko; Fargo; Hutz, and

Sladek.

Moreover, Claimant filed his claim petition in April 2012, more than

300 weeks after his last date of employment with exposure to the hazard, which

occurred in 2004. F.F. No. 21(d). For this additional reason, Claimant was not

entitled to the presumption of compensability in Section 301(f) of the Act.

Demchenko; Fargo.

2. Discovery Rule

Second, Claimant asserts, even assuming Section 301(f) creates a

limitation on the time in which a firefighter diagnosed with cancer has to file a

claim petition, the discovery rule applies and therefore extends the time for filing.

Therefore, Claimant argues, the statute of limitations does not begin to run in

occupational disease cases until the claimant learns, by a competent medical

diagnosis, that his disability is work-related. Price.

We disagree. As we observed in Hutz, Claimant misstates the issue.

The issue is not whether a statute of limitations resulted in the denial of Claimant’s

firefighter cancer claim. As explained above, his filing of the claim was timely.

Rather, the issue is whether Claimant may rely on the statutory presumption of

compensability in Section 301(f).

17

In any event, Claimant 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 Claimant. 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 E. McKeesport, 94 A.3d 418

(Pa. Cmwlth. 2014) (a court may, on its own, raise the issue of mootness as courts

cannot decide a controversy that no longer exists; an actual controversy must be

extant at all stages of review).

3. Medical Evidence of Causation

Claimant also contends the Board’s determination that Claimant failed

to establish an entitlement to benefits and that Employer’s medical evidence

rebutted the statutory presumption of compensability in Section 301(f) is not

supported by competent evidence or pertinent legal authority.

In particular, Claimant asserts Employer’s Expert failed to offer an

opinion specific to Claimant’s individual circumstances. Claimant further asserts

the WCJ failed to address Employer’s Expert’s admissions that: epidemiology

measures risks in populations, not in individual cases; a general causation or

epidemiologic opinion is not dispositive whether exposures were a substantial

contributing factor in a specific individual’s cancer; and, for specific causation,

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clinical judgment, taking into account the individual characteristics of the claimant

is required.

Here, Claimant maintains, Employer’s Expert testified he did not

question Claimant’s diagnosis, and he did not provide any opinion as to what

particularly caused Claimant’s or any other firefighter’s cancer. In the absence of

any opinion specific to the cause of his cancer, Claimant argues Employer’s

Expert’s opinion cannot rebut the presumption of compensability in Section 301(f).

As discussed above, regardless of the date Claimant filed his claim

petition, the presumption of compensability in Section 301(f) of the Act is

unavailable to Claimant. Sladek; Hutz. Thus, although Employer’s Expert did not

offer an opinion specific to Claimant’s individual circumstances, the presumption

of compensability in Section 301(f) did not come into play in this case.

As such, the burden of establishing causation remained with Claimant.

However, the WCJ found Claimant’s Expert’s testimony failed to credibly or

persuasively prove that Claimant’s exposure to Group I carcinogens constituted a

significant contributing factor in the cause of his prostate cancer. WCJ Op. at 13-

14.

In sum, Claimant’s Expert’s testimony failed to establish a causal

relationship between Claimant’s prostate cancer and his occupational exposure to

Group 1 carcinogens. WCJ Op. at 13-14. Therefore the burden of rebutting an

established causal relationship did not fall upon Employer. Hutz; Sladek.

19

Nonetheless, we reject Claimant’s contention that Employer’s

Expert’s testimony does not constitute substantial competent evidence in support

of the WCJ’s determination that Claimant’s medical evidence did not support the

finding of a causal relationship between Claimant’s exposure to carcinogens as a

firefighter and his prostate cancer. Although Claimant argues that Employer’s

Expert admitted that general epidemiology measures risks in populations, not

individuals, this does not render incompetent his testimony that Claimant’s Expert

is not an epidemiologist and that the studies he relied on were not an adequate

basis for Claimant’s Expert’s opinion that the prostate cancers of the firefighters’

cases he reviewed were work-related. See Amandeo v. Workers' Comp. Appeal

Bd. (Conagra Foods), 37 A.3d 72 (Pa. Cmwlth. 2012) (in determining whether

medical evidence is unequivocal and therefore competent to support a factual

determination, we review the testimony as a whole and do not base our analysis on

a few words taken out of context); Hannigan v. Workmen's Comp. Appeal Bd.

(Asplundh Tree Expert Co.), 616 A.2d 764 (Pa. Cmwlth. 1992) (same).

IV. Conclusion

For the above reasons, we agree with the Board’s order upholding the

WCJ’s denial of Claimant’s claim petition. Accordingly, we affirm.

ROBERT SIMPSON, Judge

20

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Thomas Logan, :

Petitioner :

:

v. : No. 2605 C.D. 2015

:

Workers' Compensation Appeal :

Board (City of Philadelphia), :

Respondent :

ORDER

AND NOW, this 9th day of March, 2017, for the reasons stated in the

foregoing opinion, the order of the Workers' Compensation Appeal Board is

AFFIRMED.

ROBERT SIMPSON, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Thomas Logan, :

Petitioner :

: No. 2605 C.D. 2015

v. :

: Submitted: September 30, 2016

Workers’ Compensation Appeal :

Board (City of Philadelphia), :

Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

CONCURRING OPINION

BY JUDGE McCULLOUGH FILED: March 9, 2017

I concur in the result reached by the thoughtful Majority because there

is no dispute that Thomas Logan (Claimant) filed his claim petition more than 300

weeks after his last day of service as a firefighter. However, I write to further

clarify our application of the presumption in Section 301(f) of the Workers’

Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §414,

and its relationship to Section 108(r) of the Act, 77 P.S. § 27.1(r).

Section 301(f) reads 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.

The Majority opinion restates the way we have come to apply section

301(f). The advantage, as we described in City of Philadelphia v. Workers’

Compensation Appeal Board (Sladek), 144 A.3d 1011, 1020 (Pa. Cmwlth. 2016),

appeal granted (Pa., No. 405 EAL 2016, filed March 1, 2017), is that “the

presumption relieves the firefighter of the need to prove that his cancer was caused

by his workplace exposure and not another cause.”

While it is not necessary here to rule on the presumption because

Claimant filed his claim petition more than 300 weeks after his last employment as

a firefighter, it is important to clarify some of the language which appears here and

previously in Hutz v. Workers’ Compensation Appeal Board (City of

Philadelphia), 147 A.3d 35, 49 (Pa. Cmwlth. 2016), petition for allowance of

appeal pending (Pa., No. 444 EAL 2016, filed October 3, 2016). In Sladek, as

reiterated by the Majority here, we held that “[i]t was incumbent upon Claimant to

prove that his malignant melanoma is a type of cancer [emphasis added] caused by

[emphasis in original] the Group I carcinogens to which he was exposed in the

workplace” in order to assert the presumption. 144 A.3d at 1021-22.

While the Majority primarily focuses on the interpretation of the

presumption that is consistent with the legislative intent, the following language

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used in this opinion and in Hutz could be misconstrued in application of the

presumption. Specifically, the majority cites Sladek as standing for the proposition

that to gain the benefit of the presumption, the firefighter must prove, inter alia,

that his cancer was “specifically caused” by a Group I carcinogen. (Slip op. at

10.) This same language appeared in Hutz, as follows: “Therefore, a claimant

must prove his cancer is caused by the Group I carcinogens to which he was

exposed in the workplace.” 147 A.3d at 49.

The noted language here and in Hutz could be viewed as changing the

burden of establishing entitlement to the presumption. To avoid any

misconception concerning the presumption, I reiterate that a claimant need not

show that his cancer was caused by the Group I carcinogen, rather, claimant

need only show that his cancer was a type of cancer which is caused by

exposure to the Group I carcinogen in the workplace. To say otherwise could be

viewed as modifying the presumption we recognize as relieving the firefighter of

the need to prove that his cancer was caused by his workplace exposure and not

another cause. Sladek, 144 A.3d at 1021-22. Accordingly, although I join the

result in the present case, I must depart from the Majority’s statement and the same

statement in Hutz.

Finally, the majority also states that Claimant must prove that his

cancer is “the type of cancer caused by the Group I carcinogens.” (Majority op. at

10.) However, the language used in Sladek was that Claimant gets the presumption

if he shows that his cancer is “a type of cancer” caused by a Group I carcinogen.

144 A.3d at 1022. In other words, the firefighter-claimant obtains the benefit of

the presumption once he establishes that his cancer is one of a type of the cancers

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on the International Agency for Research on Cancer (IARC) list which is caused

by exposure to the carcinogen in the workplace.

It is a not a preordained formula, whereas a carcinogen is tied only to

a closed-class or defined cancer, and the claimant has the flexibility to demonstrate

that any one of the more than 120 types of cancer is known to develop or derive

from the carcinogen to which he was exposed. If the claimant identifies exposure

to such a Group I carcinogen, through competent and admissible testimony, he is

entitled to the presumption that his injury occurred in the course of his

employment. Pursuant to the statute, the only way the employer can rebut this

presumption is to adduce competent evidence showing that the claimant’s cancer

“was not caused by the occupation of firefighting,” but by something else, e.g.,

genetics, happenstance, diet, exposure to elements at a home, etc. Otherwise, the

entire concept of the presumption would be nullified if, to determine whether the

presumption should apply, both the claimant and employer could litigate, as a

threshold matter involving fact-finding by the WCJ, whether or not the claimant’s

cancer was the only, or even the most likely, cancer to derive from a known

carcinogen. This is simply not the test for the presumption but the Majority

appears to at least suggest that it is.

The clarifications discussed herein are intended to prevent any

misapplications of the presumption which could result in conflating exposure and

causation. Consistent with our holding in Sladek, a presumption of work-

relatedness applies if the firefighter-claimant proved (1) four years of service, (2)

successful passage of the physical examination, (3) no evidence of cancer in such

an examination, (4) evidence of exposure to an IARC Group I carcinogen, and (5)

the filing of a claim petition within 300 weeks of the date of last employment as a

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firefighter. Such a presumption is rebuttable, of course, but with this clarification,

I believe this Court upholds the letter and spirit of the Act 46 revisions to the Act.1

________________________________

PATRICIA A. McCULLOUGH, Judge

1

Act of July 7, 2011, P.L. 251, No. 46.

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