“The WCJ is the ultimate fact finder and has complete authority for making all credibility determinations.”
How later courts described this case
- “The WCJ is the ultimate fact finder and has complete authority for making all credibility determinations.”
- “Justice Donohue delivers the Opinion of the Court with respect to Part I [(concerning a claimant’s initial burden of demonstrating an occupational disease under Section 108(r)
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael Malone, :
Petitioner :
:
v. : No. 22 C.D. 2020
: Submitted: September 4, 2020
Workers’ Compensation Appeal :
Board (City of Philadelphia), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: January 6, 2021
Michael Malone (Claimant) petitions for review of the Order of the Workers’
Compensation Appeal Board (Board) that affirmed a Workers’ Compensation
Judge’s (WCJ) Decision and Order (Decision), denying Claimant’s Claim Petition
on the basis that Claimant did not establish that he suffers from an occupational
disease, as that term is defined in Section 108 of the Workers’ Compensation Act
(Act), 77 P.S. § 27.1.1 On appeal, Claimant argues the WCJ erred in denying his
Claim Petition because uncontradicted evidence shows that his injury is an
occupational disease, he is entitled to a presumption that his injury is work related,
1
Act of June 2, 1915, P.L. 736, as amended, added by Section 1 of the Act of October 17,
1972, P.L. 930, 77 P.S. § 27.1.
the WCJ accepted that he was exposed to carcinogens during his work, and the City
of Philadelphia (Employer) did not rebut that presumption. Based on the credited
evidence, Claimant has not established that his injury is an occupational disease
entitling him to a presumption that his injury is work related, and he has not
otherwise established that his injury was caused by his work. Accordingly, we
affirm the Board’s Order.
I. BACKGROUND
Claimant was diagnosed with prostate cancer in October 2010. (Mar. 2, 2018
WCJ Decision, Finding of Fact (FOF) ¶ 1.n.) On May 18, 2012, Claimant filed the
Claim Petition, alleging that his prostate cancer is an occupational disease caused by
“[d]irect exposure to . . . carcinogens while working as a [f]irefighter” for
Employer’s Fire Department.2 (Claim Petition at 1-2, Certified Record (C.R.) Item
2.) In the Claim Petition, Claimant sought medical benefits and total disability
benefits for the period from May 6, 2011, to June 20, 2011. (Id.) Employer filed an
Answer denying that Claimant suffered any injury or disease that was causally
related to his employment. (Answer to Claim Petition at 1, C.R. Item 4.) It also
asserted that Claimant did not provide Employer with the required notice of the
injury.3 (Id. at New Matter – Affirmative Defenses.)
A. Proceedings Before the WCJ
2
Claimant also filed a Penalty Petition, which the WCJ later denied in her September 2,
2014 Decision. (Certified Record (C.R.) Items 5, 11 at 9.) Claimant did not challenge that portion
of the WCJ’s Decision, and, as such, the Penalty Petition is not at issue on appeal.
3
The WCJ issued an initial decision on September 2, 2014, in which the WCJ agreed with
Employer that Claimant did not provide timely statutory notice of his injury as required under
Section 311 of the Act, 77 P.S. § 631, and denied the Claim Petition. On appeal, the Board
reversed, concluding that Claimant had provided Employer with timely statutory notice of his
injury. Accordingly, the Board remanded the matter to the WCJ for a decision on the merits.
Employer does not appeal this decision by the Board, and, therefore, we will not discuss it further.
2
1. Testimony of Claimant
The WCJ held multiple hearings on the Claim Petition, at which live and
deposition testimony was presented. Claimant first testified at the initial hearing
held on July 2, 2012, as follows.4 (Reproduced Record (R.R.) at 1500-01.)5
Claimant worked for Employer from 1983 to 2011 as a firefighter and lieutenant.
(Id. at 1503-04.) At the time he was hired, Claimant underwent a physical
examination that showed no signs of cancer. (Id. at 1503-05.) Throughout his
employment, on at least five separate occasions, he underwent similar examinations
without signs of cancer. (Id. at 1504.) During most of his tenure with Employer, he
was assigned to work at fire stations at which at least two diesel-powered vehicles
were present. (Id. at 1505.) After Claimant joined Employer’s Ladder 20 in 2009,
Employer installed a system to capture diesel fuel emissions, but no such system was
in place at any of Claimant’s previous work locations. (Id. at 1506.) Claimant stated
that he often noticed diesel fuel emissions present in indoor air at the stations where
he worked, as evidenced by black soot on the walls and ceilings. (Id.) Throughout
his career, Claimant was present in enclosed spaces of the firehouses while the diesel
engines in the vehicles were routinely run at the beginning of each shift, and where
diesel exhaust was present. (Id. at 1507-08.)
Claimant further testified that he has only a minimal family history of cancer,
and no family history of prostate cancer. (Id. at 1531-33.) He smoked for
approximately 30 years, but quit in 2008. (Id. at 1518.) Claimant responded to
hundreds of fires over the course of his career with Employer. (Id. at 1512, 1538.)
4
Claimant’s testimony can be found on pages 1500-1546 of the Reproduced Record and
is summarized in the WCJ’s March 2, 2018 Decision in Finding of Fact ¶ 1.
5
The Reproduced Record page numbers are not followed by a small “a” as required
by Pennsylvania Rule of Appellate Procedure 2173, Pa.R.A.P. 2173, and thus are not followed by
a small “a” herein.
3
At many of those fires, Claimant sometimes wore a self-contained breathing
apparatus (SCBA), which provides clean, breathable air to the wearer for a limited
time. (Id. at 1509-10, 1513.) Employer’s requirements for the use of SCBA, and
Claimant’s use thereof, increased over the course of his career. (Id. at 1511-13.)
Throughout his career, however, there were various firefighting activities involving
exposure to smoke for which Claimant was not required to wear, and did not wear,
an SCBA. (Id.) Accordingly, Claimant testified, he endured at least some exposure
to smoke without an SCBA at “[a]ll of” the fires to which he responded. (Id. at
1513.) Some of the fires to which Claimant responded involved exposures to
polychlorinated biphenyls (PCBs) and asbestos. (Id. at 1521-22.) Often, soot would
be present when he coughed or blew his nose, even days after responding to a fire.
(Id. at 1514.) Claimant responded to a fire, at which he was exposed to smoke
without an SCBA, one or two months before his cancer diagnosis in October 2010.
(Id. at 1512, 1528.) In May 2011, Claimant underwent surgery to treat his prostate
cancer, after which he was unable to work for a period of six weeks. (Id. at 1515-
16.) He then retired from his work as a firefighter and did not return to work for
Employer following the surgery. (Id. at 1516.) In June 2012, Claimant received a
report prepared by Barry L. Singer, M.D., a board-certified oncologist, concerning
the potential work-relatedness of Claimant’s cancer. (Id. at 1517.) Prior to receiving
Dr. Singer’s report, Claimant never had been informed by a doctor that his cancer
might have been related to his firefighting work. (Id.)
2. Reports of Barry L. Singer, M.D., and Virginia M. Weaver, M.D.
In support of the Claim Petition, Claimant presented two reports by physicians
concerning his exposure to carcinogens at work and the potential results thereof.
4
Claimant first presented a report by Dr. Singer.6 After reviewing Claimant’s medical
history, Dr. Singer concluded that Claimant’s “exposure to carcinogens while
working for [Employer] was a substantial contributing factor in the development of
his prostate cancer.” (R.R. at 3.) As to the sources of such carcinogens, Dr. Singer
identified Claimant’s exposure at fires to smoke, dust, and soot without an SCBA,
and diesel exhaust from trucks at the stations where Claimant worked. (Id. at 1-2.)
Smoke contains several substances identified by the International Agency for
Research on Cancer (IARC) as “Group 1 carcinogens,” meaning they have been
definitively confirmed to cause cancer in humans. (Id. at 3; see id. at 6.) IARC
Group 1 carcinogens “in smoke include arsenic, asbestos, benzene, benzo(a)pyrene,
1,3-betadiene, formaldehyde[,] and soot.” (Id. at 3.) Additionally, common IARC
Group 2A carcinogens (which are shown to be likely human carcinogens) found in
smoke include creosote, PCBs, polycyclic aromatic hydrocarbons, and styrene. (Id.;
see id. at 6.) Dr. Singer noted that Claimant had no family history of prostate cancer.
(Id. at 3.) He also identified several scientific studies linking prostate cancer to
firefighting. (Id.)
Claimant next presented a report by Virginia M. Weaver, M.D., a professor
of environmental health sciences and medicine at Johns Hopkins University.7 Dr.
Weaver opined that, based on her review of research on occupational exposure,
firefighters are exposed to many recognized carcinogens, including numerous IARC
Group 1 carcinogens. (Id. at 5-8.) These exposures occur during firefighting
activities where smoke is present. (Id. at 6-7.) Although firefighters sometimes use
6
This initial report by Dr. Singer can be found on pages 1-4 of the Reproduced Record and
is summarized in the WCJ’s March 2, 2018 Decision in Finding of Fact ¶ 3.
7
Dr. Weaver’s report can be found on pages 5-10 of the Reproduced Record and is
summarized in the WCJ’s March 2, 2018 Decision in Finding of Fact ¶ 4.
5
personal protective equipment to reduce their exposure, that equipment is only
partially effective even when used correctly. (Id. at 8-9.) Such equipment is often
not used at all when firefighters are in the presence of smoke. (Id.) Dr. Weaver also
identified diesel exhaust at fire stations and asbestos from buildings as additional
means of carcinogen exposure for firefighters. (Id. at 6-8.) Dr. Weaver noted a
study that shows increased incidence of cancer among those exposed to diesel
exhaust. (Id. at 7.) She did not offer an opinion on the causal connection between
carcinogens and prostate cancer in particular.
3. Report and Testimony of Tee L. Guidotti, M.D.
Employer presented the deposition testimony and report of Tee L. Guidotti,
M.D., who is board certified in internal medicine, pulmonary medicine, and
occupational medicine.8 (Id. at 1034-35.) Dr. Guidotti also has a nonmedical degree
in toxicology, has training in epidemiology, and has conducted research on cancer
risk among firefighters. (Id. at 1035-36, 1040-42.) Dr. Guidotti evaluated and
opined on Dr. Singer’s methodology and the validity of his expert opinions. He
stated that Dr. Singer’s method for reviewing and relying on the various
epidemiologic studies Dr. Singer cited was not a sufficient method for determining
general causation, i.e., whether a certain carcinogen is capable of causing a certain
type of cancer. (Id. at 1084-85.) Dr. Guidotti discussed the importance of using a
particular methodology when investigating whether a given agent causes a specific
disease. (Id. at 1040, 1046-47.) Upon reviewing Dr. Singer’s opinions, Dr. Guidotti
could not discern any methodology employed by Dr. Singer, nor did Dr. Guidotti
believe that Dr. Singer gathered enough evidence to render an opinion on the
8
Dr. Guidotti’s testimony and report can be found on pages 1025-1433 of the Reproduced
Record and are summarized in the WCJ’s March 2, 2018 Decision in Finding of Fact ¶ 5.
6
etiology of any particular disease. (Id. at 1046-47, 1053, 1098.) He also noted that
IARC Group 1 carcinogens are each related to different types of cancer, and that Dr.
Singer did not appear to discuss which of those listed carcinogens are related to
which types of cancer. (Id. at 1087-90.) Dr. Guidotti opined that Dr. Singer had not
sufficiently reviewed information on general causation in order to offer an opinion
about specific causation, i.e., the cause of Claimant’s cancer in particular, which was
the same opinion Dr. Singer offered in numerous other cases involving prostate
cancer in firefighters. (Id. at 1429-30.)
Dr. Guidotti further testified that a claimant’s history of smoking can present
a confounding variable that inhibits the assessment of whether occupational
exposures significantly contributed to the claimant’s disease. (Id. at 1109.)
Additionally, cigarette smoke contains some of the same carcinogens to which
firefighters are exposed on the job and can compound the health effects of work-
related exposure. (Id. at 1109-11.) Dr. Guidotti acknowledged, however, that a
claimant’s smoking history should not result in the automatic denial of a claim or
the conclusion that there is no causal connection between his work and his cancer,
but it should be considered to be a potentially significant causal factor. (Id. at 1116-
17.) Concerning prostate cancer in particular, Dr. Guidotti opined that, although
other types of cancer have a marked association with firefighting, prostate cancer is
“much more a disease of aging than it is of external influences[,]” and he did not
believe there is sufficient evidence to conclude that firefighting significantly elevates
prostate cancer risk. (Id. at 1378-79.)
4. Responsive Report and Testimony of Dr. Singer
In response to Dr. Guidotti’s report and testimony criticizing Dr. Singer’s
methodology and opinions, Claimant presented an additional report by, and the
7
deposition testimony of, Dr. Singer.9 Dr. Singer acknowledged Dr. Guidotti’s focus
on epidemiologic studies, but emphasized that epidemiology is only one component,
among others, that he considers when offering an opinion in firefighter cancer cases.
(Id. at 233-34.) Dr. Singer explained that, when he described Claimant’s firefighting
work as a substantial contributing factor in Claimant’s development of prostate
cancer, he meant to convey his opinion that “but for the exposures to known human
carcinogens encountered during [Claimant’s] service, he would not have developed
the cancer when it was diagnosed.” (Id. at 235.) In direct response to Dr. Guidotti’s
criticism that he failed to identify a specific carcinogen linked to prostate cancer, Dr.
Singer stated that he did identify many specific carcinogens to which firefighters are
exposed. (Id.) He opined that, among these, “prostate cancer has been associated
with arsenic, [Polycyclic aromatic hydrocarbons (]PAH’s[)], and phthalates[,]”
which are IARC Group 1 carcinogens, and he cited several scientific studies in
support of that statement. (Id. at 235-36.) He explained, however, that a focus on a
single carcinogen may not be appropriate, given that exposure to multiple
carcinogens (as occurs with firefighters) can produce a synergistic increase in cancer
risk. (Id. at 235.)
Dr. Singer reemphasized what he views as a significant body of epidemiologic
evidence of increased rates of prostate cancer among firefighters. (Id. at 235-36.)
In support of this view, he cited several meta-analyses of cancer among firefighters,
including one analysis by Grace LeMasters, Ph.D., published in 2006 (LeMasters
Report), which both he and Dr. Guidotti had discussed in their earlier reports and
9
Dr. Singer’s responsive report, dated December 19, 2012, can be found on pages 233-237
of the Reproduced Record. His accompanying deposition testimony is summarized, along with
his responsive report, in the WCJ’s March 2, 2018 Decision in Finding of Fact ¶ 6 and can be
found on pages 46-1024 of the Reproduced Record.
8
testimony. (Id.) On cross-examination, Dr. Singer admitted that some cases of
prostate cancer in firefighters are not caused by work-related exposure, but by other
factors. (Id. at 499-502.) However, he maintained his opinion that, for many
firefighters, their exposure to carcinogens through their work contributes to their
development of prostate cancer, including by causing them to develop it at an earlier
age than they otherwise would. (Id. at 931.)
5. Report of Janet L. Stanford, Ph.D.
Finally, Employer introduced a report by Janet L. Stanford, Ph.D., an
epidemiologist who studies prostate cancer.10 Dr. Stanford explained that
observational studies have identified several risk factors that are associated with
prostate cancer. (Id. at 1434.) These “include age, race/ethnicity, and family history
of prostate cancer.” (Id.) The median age of diagnosis with prostate cancer is 67.
(Id.) Diagnosis at a younger age does not necessarily suggest an environmental
cause, because diseases with genetic causes tend to present at an earlier age. (Id. at
1435.) Dr. Stanford admitted that she is not an occupational epidemiologist qualified
to address the connection between occupational exposures and prostate cancer. (Id.)
She opined, however, that the literature she reviewed suggests that about 42% of
prostate cancer etiology is related to genetics, while about 58% is related to
environmental factors, such as occupational exposure, alcohol use, and smoking.
(Id.) Prostate cancer is a complex disease that often has multiple factors in its
causation. (Id.) These multiple factors—such as genetics and environmental
exposure—can interact with each other, producing a causal effect greater or less than
each produces individually. (Id.) The extent to which such interaction occurs in
10
Dr. Stanford’s report can be found on pages 1434-1494 of the Reproduced Record and
is summarized in the WCJ’s March 2, 2018 Decision in Finding of Fact ¶ 7.
9
prostate cancer cases has not been well studied. (Id.) Therefore, Dr. Stanford
concluded, “it is possible to estimate a likelihood that an exposure” to carcinogens
is associated with prostate cancer, but it is not possible definitively to prove that
certain carcinogens cause prostate cancer. (Id.)
B. March 2, 2018 WCJ Decision
In the March 2, 2018 Decision, the WCJ found that Claimant did not establish
that his prostate cancer was caused by his work as a firefighter and denied the Claim
Petition. In doing so, the WCJ found Claimant’s testimony wholly credible, noting
that Employer did not dispute Claimant’s description of his firefighting duties and
experiences, presumably including the exposure to smoke and diesel exhaust of
which Claimant testified. (Mar. 2, 2018 WCJ Decision, FOF ¶ 8.) Concerning the
medical testimony, the WCJ found that Claimant’s evidence did not establish that
any IARC Group 1 carcinogens are known to cause prostate cancer. (Id. ¶ 9.) On
this issue, the WCJ found Employer’s medical expert witness, Dr. Guidotti, credible
and Claimant’s expert, Dr. Singer, not credible. (Id.) The WCJ explained:
Dr. Singer mentions the [IARC] Group 1 carcinogens as cancer[-
]causing agents, but his testimony on this issue is vague at best as [it]
pertains to prostate cancer in general and [is] not credible to establish
that prostate cancer is caused by Group 1 carcinogens. Dr. Guidotti
explained in detail the different accepted scientific methodologies used
in determining how to analyze whether a particular substance is a
cancer-causing agent, and Dr. Singer did not use any of these methods
but rather relied on articles and his own assumptions when
assessing . . . claimants’ affidavits in the various cases he reviewed.
This Judge finds Dr. Guidotti’s explanation as to the methodology to
be used in analyzing whether a[n IARC] Group 1 carcinogen is a known
cause of a particular type of cancer more credible than Dr. Singer’s
contrary opinions, to the extent any were expressed, because Dr.
Guidotti is trained in epidemiology, has a degree in toxicology[,] and is
board certified in internal medicine, pulmonary medicine[,] and internal
medicine.
10
(Id.) Based on her refusal to credit Dr. Singer’s testimony, as described above, the
WCJ concluded that Claimant failed to demonstrate that IARC Group 1 carcinogens
have been shown to cause prostate cancer, and, thus, he was not entitled to the
statutory presumption that his firefighting caused his cancer. (Id. ¶ 10.)
The WCJ did not credit Dr. Singer’s testimony that Claimant’s exposure to
carcinogens through his firefighting work was a substantial contributing factor in his
development of prostate cancer. (Id.) Once again, the WCJ credited Employer’s
witness over Dr. Singer, noting Dr. Stanford’s opinion that the established risk
factors for prostate cancer are age, race/ethnicity, and family history. (Id.) The WCJ
found specifically that
Dr. Stanford is better qualified to answer the question of whether
prostate cancer could be caused by firefighting than Dr. Singer, and her
opinion that such causal connection has not been shown is more
credible than Dr. Singer’s opinion that Claimant’s work is a substantial
contributing causative factor in his development of prostate cancer.
(Id.) The WCJ further found that Dr. Singer’s medical “opinion has no credible
scientific or epidemiologic basis.” (Id.) Based on these findings, the WCJ
concluded that Claimant failed to establish that he contracted prostate cancer as a
result of his work and denied the Claim Petition. (Mar. 2, 2018 WCJ Decision,
Conclusion of Law ¶ 2.)
C. December 24, 2019 Board Opinion
Claimant appealed the WCJ’s Decision to the Board, which affirmed. The
Board, noting that the WCJ credited the testimony of Dr. Guidotti and Dr. Stanford,
declined to disturb those credibility determinations given a WCJ’s discretion to
accept or reject the testimony of any witness, including any expert witnesses. Based
on the WCJ’s determination that Dr. Singer’s testimony was not credible, the Board
11
determined that Claimant failed to meet his initial burden of proving that IARC
Group 1 carcinogens can cause prostate cancer. The Board reasoned that, because
Claimant failed to meet this burden of establishing general causation, the burden
never shifted to Employer to rebut a presumption regarding the specific cause of
Claimant’s cancer. The Board concluded that, “as there was no credible evidence to
establish Claimant’s initial burden of proof, the WCJ’s finding that Claimant failed
to meet his burden entitling him to benefits for prostate cancer was supported by
substantial, competent evidence.” (Dec. 24, 2019 Board Op. at 14.) The Board also
determined that, contrary to Claimant’s argument, the WCJ did not capriciously
disregard the LeMasters Report, on which Dr. Singer relied, given that the WCJ
actually discussed it but declined to credit it along with Dr. Singer’s other testimony.
Claimant now petitions this Court for review.11
II. PARTIES’ ARGUMENTS
On appeal, Claimant argues that the Board and the WCJ erred by
misinterpreting Claimant’s burden of proof when analyzing the evidence in support
of the Claim Petition. (Claimant’s Brief (Br.) at 23.) Claimant acknowledges that,
in seeking compensation for an occupational disease, as defined in Section 108(r) of
the Act, 77 P.S. § 27.1(r),12 he must make a threshold showing of general
causation—in this case, that his type of cancer, prostate cancer, can be caused by an
11
In reviewing a decision of the Board, “[o]ur review is limited to determining whether an
error of law was committed, whether necessary findings of fact are supported by substantial
evidence, and whether constitutional rights were violated.” McDermott v. Workers’ Comp. Appeal
Bd. (Brand Indus. Servs., Inc.), 204 A.3d 549, 554 n.9 (Pa. Cmwlth. 2019).
12
Section 108(r) establishes, as an occupational disease, “[c]ancer suffered by a firefighter
which is caused by exposure to a known carcinogen which is recognized as a Group 1 carcinogen
by the [IARC].” 77 P.S. § 27.1(r). Section 108(r) was added by Section 1 of the Act of July 7,
2011, P.L. 251.
12
IARC Group 1 carcinogen. (Id. at 24.) He asserts that he provided uncontradicted
scientific evidence, i.e., the testimony and opinion of Dr. Singer, and the LeMasters
Report and other studies upon which Dr. Singer relied, showing that specific IARC
Group 1 carcinogens are capable of causing prostate cancer. (Id. at 24-27.) Claimant
insists that this evidence was sufficient to carry his initial burden, thus demonstrating
that he suffered from an occupational disease. (Id. at 27.) Claimant then emphasizes
that, by crediting Claimant’s testimony, the WCJ accepted that Claimant established
the other elements necessary to trigger an evidentiary presumption, pursuant to
Section 301(f) of the Act, 77 P.S. § 414,13 that his specific cancer was caused by his
work. (Id. at 27-28.)
Alternatively, Claimant argues that he established entitlement to the
evidentiary presumption of compensability through Section 108(n) of the Act, 77
P.S. § 27.1(n),14 by showing an association and causal relationship between the
13
Section 301(f) was added to the Act by Section 2 of the Act of July 7, 2011, P.L. 251,
and provides, 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. . . . The presumption provided for under
this subsection shall only apply to claims made within the first 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].
77 P.S. § 414.
14
Section 108(n) establishes, as occupational diseases, “[a]ll other diseases (1) to which
the claimant is exposed by reason of his employment, and (2) which are causally related to the
(Footnote continued on next page…)
13
occupation of firefighting and prostate cancer through the LeMasters Report. (Id. at
29-30.) Claimant contends that the WCJ ignored the LeMasters Report, which was
clear error. Finally, Claimant argues that Employer’s evidence did not identify a
non-work-related cause of Claimant’s cancer and, therefore, was not sufficient to
rebut the evidentiary presumption applicable under the Act. (Id. at 31-34.) He
claims, therefore, that the WCJ and the Board erred in denying and dismissing the
Claim Petition based on Employer’s evidence. (Id. at 35.)
Employer responds that this Court is bound by the WCJ’s credibility
determinations, including her decision not to credit Dr. Singer’s expert opinion, and
cannot overturn or disturb that determination. (Employer’s Br. at 6.) Employer
emphasizes that a showing of general causation, under Section 108(r) of the Act, is
a necessary precondition to considering the rebuttable presumption provided in
Section 301(f) of the Act. (Id. at 7-9.) Because the WCJ found that Claimant did
not make the initial general causation showing, Employer argues, the rebuttable
presumption was never truly an issue, and the burden never shifted to Employer to
show a non-work-related cause of Claimant’s cancer. (Id. at 5.) In other words,
Employer takes the position that, because Claimant never credibly demonstrated that
IARC Group 1 carcinogens can cause prostate cancer, his exposure to those
carcinogens never became relevant, even if it was credibly demonstrated. (Id. at 10.)
Employer asserts that the WCJ did not err or abuse her discretion in declining to
credit Dr. Singer regarding Claimant’s initial burden, and the Board did not err in
giving deference to that credibility determination. (Id. at 12-13.) Employer does
not address Claimant’s argument that he demonstrated occupational disease under
Section 108(n) of the Act.
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
III. DISCUSSION
To prevail on a claim petition, a claimant bears “the burden of establishing
the right to compensation and all of the elements necessary to support an award.”
Rife v. Workers’ Comp. Appeal Bd. (Whitetail Ski Co.), 812 A.2d 750, 754 (Pa.
Cmwlth. 2002). Section 301(a) of the Act, 77 P.S. § 431, provides that “[e]very
employer shall be liable for compensation for personal injury to . . . each employe,
by an injury in the course of his employment . . . .” Section 301(c)(2) of the Act, 77
P.S. § 411(2), defines the phrase “injury arising in the course of his employment” to
include an “occupational disease,” as that term is defined under Section 108 of the
Act. Thus, an injury satisfying the definition of “occupational disease” under
Section 108 is a compensable injury under the Act. To assist claimants who assert
they suffer from an occupational disease in demonstrating the elements necessary to
support an award, the Act contains a generally applicable evidentiary presumption
regarding the cause of a claimant’s occupational disease. Section 301(e) of the Act,
77 P.S. § 413,15 provides that
[i]f it be shown that the employe, at or immediately before the date of
disability, was employed in any occupation . . . in which the
occupational disease is a hazard, it shall be presumed that the employe’s
occupational disease arose out of and in the course of his employment,
but this presumption shall not be conclusive.
The definition of “occupational disease” was amended by Act 46 of 201116 to add
Section 108(r), which expanded the term “occupational disease” to include “[c]ancer
suffered by a firefighter which is caused by exposure to a known carcinogen which
is recognized as a Group 1 carcinogen by the [IARC].” 77 P.S. § 27.1(r). Act 46
15
Section 301(e) was added to the Act by Section 3 of the Act of October 17, 1972, P.L.
930.
16
Act of July 7, 2011, P.L. 251, No. 46.
15
also added Section 301(f) of the Act, 77 P.S. § 414, which imposes additional
conditions on the presumption of Section 301(e) as it relates to the occupational
disease of cancer suffered by a firefighter. Under Section 301(f), a firefighter is
entitled to benefits for the occupational disease of cancer, as defined in Section
108(r) of the Act, provided the firefighter can show: (1) employment for four or
more years in continuous firefighting duties; (2) direct exposure to an IARC Group
1 carcinogen; and (3) the firefighter passed a physical examination prior to engaging
in firefighting duties that did not reveal any evidence of cancer. 77 P.S. § 414. Once
the claimant shows these elements and the presumption of causation applies, the
employer can rebut the presumption through “substantial competent evidence that
shows that the firefighter’s cancer was not caused by the occupation of
firefighting.”17 Id.
Importantly, when evaluating whether a claimant has met his burden under
the Act, “[t]he WCJ is the ultimate fact finder and has complete authority for making
all credibility” and evidentiary weight determinations. Rife, 812 A.2d at 755. It is
well-settled that a “WCJ may reject the testimony of any witness in whole or in part,
even if that testimony is uncontradicted.” Hoffmaster v. Workers’ Comp. Appeal Bd.
(Senco Prods., Inc.), 721 A.2d 1152, 1156 (Pa. Cmwlth. 1998). Where the WCJ is
required to assess the credibility of deposition testimony, the WCJ must articulate
objective bases for crediting one witness’s deposition testimony over another
witness’s deposition testimony. Daniels v. Workers’ Comp. Appeal Bd. (Tristate
Transp.), 828 A.2d 1043, 1053-54 (Pa. 2003).
17
In addition to the three conditions discussed above, Section 301(f) requires the firefighter
to have filed his claim within 300 weeks of his last day of employment as a firefighter in order to
qualify for the rebuttable presumption provided in Section 301(f). Here, it is clear and undisputed
that Claimant filed the Claim Petition within 300 weeks of his last day of employment as a
firefighter.
16
A. Section 108(r) of the Act
The Pennsylvania Supreme Court has clarified the process by which a
claimant may avail himself or herself of the evidentiary presumption found in
Section 301(f) based on a Section 108(r) claim. See City of Phila. Fire Dep’t v.
Workers’ Comp. Appeal Bd. (Sladek), 195 A.3d 197 (Pa. 2018) (Sladek II). In Sladek
II, the claimant had worked for Employer as a firefighter and brought a claim petition
seeking compensation for malignant melanoma. In support of his claim petition,
that claimant also introduced testimony by Dr. Singer, who opined that the
claimant’s exposure to carcinogens through his work for Employer was a substantial
contributing factor in his development of skin cancer. Id. at 201. Dr. Singer also
opined that malignant melanoma could be caused by the IARC Group 1 carcinogens
arsenic and soot. Id. at 202. Employer introduced the testimony of Dr. Guidotti,
who gave testimony very similar to his testimony in this case, criticizing Dr. Singer’s
methodology and opinions. Unlike in the instant matter, however, the WCJ in Sladek
II credited Dr. Singer’s testimony and opinions, declined to credit Dr. Guidotti’s
testimony, and granted the claim petition. Id. at 202-03. The Board affirmed the
WCJ’s decision, and Employer appealed to this Court. We vacated the Board’s
decision and remanded for further proceedings. We held, in part, that “[i]t was
incumbent upon [the c]laimant to prove that his malignant melanoma is a type of
cancer caused by the Group 1 carcinogens to which he was exposed in the
workplace” in order to establish that his cancer was an occupational disease under
Section 108(r) of the Act. City of Phila. Fire Dep’t v. Workers’ Comp. Appeal Bd.
(Sladek), 144 A.3d 1011, 1021-22 (Pa. Cmwlth. 2016) (en banc) (second emphasis
added), rev’d, Sladek II. We also specifically rejected the Board’s reasoning that the
17
claimant met his initial burden simply by demonstrating he suffered from cancer
generally and had been exposed to at least one IARC Group 1 carcinogen.
Our Supreme Court reversed and remanded to the Board. Sladek II, 195 A.3d
at 210. In so doing, the Court explained that the Act divides litigation by firefighters
for cancer claims into “discrete stages.” Id. at 207. First, the claimant must carry
an initial burden under Section 108(r). This initial burden, which concerns general
causation only, is not a heavy one, and the claimant need only “establish a general
causative link between the claimant’s type of cancer and a Group 1 carcinogen.” Id.
at 208. “In other words, the claimant must produce evidence that it is possible that
the carcinogen in question caused the type of cancer with which the claimant is
afflicted.” Id. Next, the claimant must show that the claimant meets the other three
conditions to the presumption in Section 301(f) of the Act, i.e., four or more years
of service, direct exposure to an IARC Group 1 carcinogen, and a cancer-free
physical exam prior to engaging in firefighting work. Id. at 207. If the claimant
makes these showings, the claimant benefits from the presumption in Section 301(f),
and the burden shifts to the employer to prove that the claimant’s cancer was caused
by something other than the claimant’s work as a firefighter. Id. The Court noted
that “epidemiological evidence is clearly relevant and useful in” evaluating general
causation at the initial burden stage. Id. at 208.18 The Court therefore directed the
Board on remand to determine whether Dr. Singer’s testimony satisfied the standard
18
A majority of our Supreme Court joined in this portion, i.e., Part I, of the Sladek II
opinion regarding the initial burden stage. See Sladek II, 195 A.3d at 199 (“Justice Donohue
delivers the Opinion of the Court with respect to Part I [(concerning a claimant’s initial burden of
demonstrating an occupational disease under Section 108(r))], announces the judgment of the
Court, and delivers an opinion with respect to Part II [(rebutting the presumption of compensability
under Section 301(f)),] joined by Justices Baer and Todd[.]” (italics omitted)).
18
set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923),19 and stated that if
it did not, the claimant could not carry his initial burden as to general causation under
Section 108(r) of the Act. Sladek II, 195 A.3d at 210. Crucially, for the instant case,
the Court also noted that, even if Dr. Singer’s testimony satisfied the Frye standard,
the fact finder was free to find “that Dr. Guidotti’s opinion is more credible on the
question of general causation.” Id. In that situation, “the epidemiological evidence
offered by [Employer] through Dr. Guidotti would carry the day without the burden
of proof . . . ever shifting to [Employer] to prove specific causation.” Id.
We recently applied the analytical framework from Sladek II in Deloatch v.
Workers’ Compensation Appeal Board (City of Philadelphia), 224 A.3d 432 (Pa.
Cmwlth.), appeal denied, 237 A.3d 973 (Pa. 2020). The claimant in Deloatch sought
compensation for lung cancer pursuant to Sections 108(r) and 301(f) of the Act. Just
as in Sladek II, Dr. Singer testified on behalf of the claimant, and Dr. Guidotti
testified on behalf of Employer. Additionally, Employer presented the medical
report of Howard Sandler, M.D., a physician specializing in occupational and
environmental medicine, who disagreed with Dr. Singer’s conclusion that there is a
causal link between firefighting and lung cancer. Deloatch, 224 A.3d at 436-37. Dr.
Sandler admitted, however, that there was sufficient scientific evidence to establish
a causal link between diesel exhaust (an IARC Group 1 Carcinogen) and lung cancer.
Id. at 436. The WCJ declined to credit Dr. Singer’s testimony and credited Dr.
Guidotti and Dr. Sandler’s opinions instead. Based on her decision not to credit Dr.
Singer’s testimony about a causal connection between firefighting and cancer, the
19
As our Supreme Court stated in Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1043-44 (Pa.
2003), “[t]he Frye test . . . is part of [Pennsylvania Rule of Evidence] 702[, Pa.R.E. 702]. Under
Frye, novel scientific evidence is admissible if the methodology that underlies the evidence has
general acceptance in the relevant scientific community.”
19
WCJ concluded that the claimant was not entitled to the presumption in Section
301(f) of the Act. Id. at 437. The claimant appealed to the Board, which reversed
and remanded the matter to the WCJ. On remand, the WCJ issued a new decision
granting the claim petition as directed by the Board, and Employer appealed to the
Board, which reversed based on its application of Sladek II. The claimant then
petitioned this Court for review, arguing that the Board’s second decision was in
error. In reviewing the claimant’s arguments, we observed that, although the WCJ
found Dr. Singer’s testimony not credible, the WCJ found that the claimant was
exposed to IARC Group 1 carcinogens, including diesel fumes/exhaust, in the course
of his work as a firefighter, and expressly credited Dr. Sandler’s opinion that
independently established that one of those IARC Group 1 carcinogens (diesel
exhaust) could cause lung cancer. Id. at 441. We also held that Employer failed to
offer any evidence showing that diesel exhaust does not cause lung cancer. Based
on the credited evidence, we held that the claimant had met his initial burden of
showing general causation under Section 108(r) of the Act. Id. Thus, our decision
in Deloatch confirms that, under Sladek II, the question of whether a claimant meets
the initial burden of proof on general causation may be resolved solely on a WCJ’s
credibility determinations.
Here, Claimant argues that the WCJ and the Board imposed a burden of proof
greater than Section 108(r) of the Act requires. He insists that he carried his initial
burden with respect to general causation, thus demonstrating that he suffers from an
occupational disease. Claimant maintains that he presented Dr. Singer’s
uncontradicted testimony as to general causation, including Dr. Singer’s direct
opinion that certain IARC Group 1 carcinogens can cause prostate cancer. He also
asserts that the LeMasters Report supported his claim but was ignored by the WCJ.
20
We disagree with Claimant’s characterization of his evidence as uncontradicted. Dr.
Guidotti directly testified that Dr. Singer’s method for reviewing the various
epidemiologic studies Dr. Singer cited was not a sufficient method for determining
general causation, thereby challenging Dr. Singer’s general causation opinion. (R.R.
at 1084-85.) More critically, the WCJ, in her discretion, did not credit Dr. Singer’s
testimony, which was based, in part, on the LeMasters Report, and this is not subject
to this Court’s review. See Rife, 812 A.2d at 755 (“The WCJ is the ultimate fact
finder and has complete authority for making all credibility determinations.”).
Instead, the WCJ credited Employer’s witnesses, Dr. Guidotti and Dr. Stanford, both
of whom disputed Dr. Singer’s general causation opinion, and Dr. Stanford’s opinion
contradicted the LeMasters Report. (Mar. 2, 2018 WCJ Decision, FOF ¶¶ 9-10.)
We may not disturb a WCJ’s factual findings so long as they are supported by
substantial evidence.20 Here, Claimant does not challenge any of the findings on the
basis they lack substantial evidence. Regardless, the WCJ’s findings are supported
by substantial evidence.
Moreover, the WCJ provided a reasoned explanation for her decision not to
credit Dr. Singer’s testimony. She explained that her decision was based on Dr.
Singer’s lack of training in epidemiology, the vagueness of his testimony, and his
failure to identify an accepted methodology for demonstrating general, as opposed
20
Substantial evidence is defined as “relevant evidence that a ‘reasonable person might
accept as adequate to support a conclusion.’” Pocono Mountain Sch. Dist. v. Workers’ Comp.
Appeal Bd. (Easterling), 113 A.3d 909, 918 (Pa. Cmwlth. 2015) (quoting Wieczorkowski v.
Workers’ Comp. Appeal Bd. (LTV Steel), 871 A.2d 884, 890 (Pa. Cmwlth. 2005)). When
reviewing a WCJ decision for substantial evidence, we “must view the evidence in the light most
favorable to the” prevailing party and draw all reasonable inferences in the prevailing party’s favor.
Id. It is important to note that “it is irrelevant whether the record contains evidence to support
findings other than those made by the WCJ; the critical inquiry is whether there is evidence to
support the findings actually made.” Lahr Mech. v. Workers’ Comp. Appeal Bd. (Floyd), 933 A.2d
1095, 1101 (Pa. Cmwlth. 2007) (citation omitted).
21
to specific, causation. (FOF ¶ 9.) The requirement for a reasoned decision “does
not permit a party to challenge or second-guess” a WCJ’s credibility determinations
because “determining the credibility of witnesses remains the quintessential function
of the WCJ as the finder of fact.” Reed v. Workers’ Comp. Appeal Bd. (Allied Signal,
Inc.), 114 A.3d 464, 470 (Pa. Cmwlth. 2015).
Here, unlike in Sladek II and Deloatch, none of the testimony credited by the
WCJ, i.e., the testimony of Claimant, Dr. Weaver, Dr. Guidotti, or Dr. Stanford,
established that any IARC Group 1 carcinogen can cause prostate cancer. As we
have discussed, the WCJ’s decision not to credit Dr. Singer’s testimony was an
exercise of discretion accompanied by a reasoned explanation, and it must, therefore,
stand. We conclude that Claimant has not met his initial burden of demonstrating
general causation under Section 108(r) of the Act, and he has not established that his
cancer is an occupational disease under that section. Because Claimant did not meet
this initial burden, his demonstration of the other factors under Section 301(f) of the
Act does not entitle him to the presumption found in that section, and the Board did
not err in declining to apply that presumption. See Sladek II, 195 A.3d at 207;
Deloatch, 224 A.3d at 440. Accordingly, the burden never shifted to Employer to
rebut the presumption that Claimant’s cancer was caused by his work. Sladek II,
195 A.3d at 210.21
21
Because Claimant did not show that he suffers from an occupational disease, we do not
consider his arguments concerning subsequent steps in the analytical framework laid out in Sladek
II, including demonstration of the factors in Section 301(f) of the Act or Employer’s rebuttal of
the presumption.
22
B. Section 108(n) of the Act
Our analysis does not end here because “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.” Demchenko v. Workers’
Comp. Appeal Bd. (City of Phila.), 149 A.3d 406, 419 (Pa. Cmwlth. 2016), appeal
denied, 200 A.3d 940 (Pa. 2019). Section 108(n) of the Act includes in the definition
of occupational disease “[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). This “catch-all
provision” allows claimants in cancer cases to claim the general evidentiary
presumption as to causation even if they cannot do so under Section 108(r) of the
Act. Demchenko, 149 A.3d at 417 n.20. The presumption triggered by application
of Section 108(n) of the Act is the general evidentiary presumption in Section 301(e)
of the Act, which applies to all occupational diseases and to claimants in all types of
work. Id. at 416-17, 419-20. When proceeding under Section 108(n), the claimant
is required to prove, inter alia, that the type of cancer from which he suffers is
“causally related to [his] industry or occupation.” 77 P.S. § 27.1(n). This is a general
causation inquiry, which, once the elements in Section 108(n) are shown, results in
application of the presumption in Section 301(e). See Demchenko, 149 A.3d at 419-
20 (noting that the burden under Section 108(n) relies on “‘general causation’
principles”).
Claimant argues that he established that his cancer fell within this catch-all
provision. However, Claimant’s argument under Section 108(n) of the Act lacks
merit. We have repeatedly considered matters in which the claimant failed to obtain
23
the special presumption under Section 108(r) of the Act and sought relief in the
alternative under Section 108(n). See Capaldi v. Workers’ Comp. Appeal Bd. (City
of Phila.), 152 A.3d 1107, 1117 (Pa. Cmwlth. 2017); Demchenko, 149 A.3d at 419.
In both of those cases, the claimant offered Dr. Singer’s testimony to show a general
causal connection between firefighting and the type of cancer the claimant suffered,
and the WCJ specifically rejected Dr. Singer’s testimony as to causation. Capaldi,
152 A.3d at 1109, 1112-13; Demchenko, 149 A.3d at 409-10, 414. In both cases,
we concluded that, because the WCJ rejected the medical evidence on which the
claimant must rely to make a showing under Section 108(n), the claimant could not
prevail under that section. Capaldi, 152 A.3d at 1117; Demchenko, 149 A.3d at 420.
The same applies here, where the WCJ rejected Dr. Singer’s causation testimony.
Accordingly, Claimant cannot demonstrate his entitlement to benefits under Section
108(n).
IV. CONCLUSION
For the foregoing reasons, Claimant did not satisfy his initial burden of
demonstrating that his cancer is an occupational disease under the Act or that his
cancer was caused by his work and, therefore, the Board did not err in affirming the
WCJ’s denial of the Claim Petition.
Accordingly, we affirm the Board’s Order.
_____________________________________
RENÉE COHN JUBELIRER, Judge
24
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael Malone, :
Petitioner :
:
v. : No. 22 C.D. 2020
:
Workers’ Compensation Appeal :
Board (City of Philadelphia), :
Respondent :
ORDER
NOW, January 6, 2021, the Order of the Workers’ Compensation Appeal
Board, entered in the above-captioned matter, is AFFIRMED.
_____________________________________
RENÉE COHN JUBELIRER, Judge