addressing the admissibility of scientific evidence
How later courts described this case
- addressing the admissibility of scientific evidence
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Findlay Township, :
:
Petitioner :
:
v. : No. 6 C.D. 2020
: Submitted: September 4, 2020
Workers’ Compensation Appeal :
Board (Steele), :
:
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: January 7, 2021
Findlay Township (Township/Employer) petitions for review of an
adjudication and order of the Workers’ Compensation Appeal Board (Board) that
granted the fatal claim petition filed by Cheryl Steele (Claimant), following the death
of her husband, Roy Steele (Decedent). In so doing, the Board affirmed the decision
of the Workers’ Compensation Judge (WCJ), following remand, which found that
Decedent died from a disease sustained in the course of his work as a firefighter,
entitling Claimant to benefits under the Workers’ Compensation Act (Act).1
Employer contends that the Board erred in granting the fatal claim petition because
Claimant did not establish the date that Decedent was last exposed to a hazard related
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.1, 2501-2710.
to his disease, i.e., lung cancer. Additionally, Employer claims that the methodology
used by Claimant’s medical expert to assess the case does not comport with Frye v.
United States, 293 F. 1013 (D.C. Cir. 1923) (addressing the admissibility of
scientific evidence). For the following reasons, we affirm the Board.
I. Background
Decedent was a volunteer firefighter for 42 years with the Township’s
Imperial Volunteer Fire Department. He was diagnosed with lung cancer on October
29, 2009, and died in 2011. On June 8, 2012, Claimant filed a lifetime claim petition
on Decedent’s behalf and, on June 11, 2012, a fatal claim petition, claiming that
Decedent’s cancer was caused by exposure to carcinogens recognized as Group 1
carcinogens by the International Agency for Research on Cancer (IARC) and,
therefore, Decedent was entitled to total disability benefits pursuant to Section 108(r)
of the Act, 77 P.S. § 27.1(r).2
Before the WCJ, Claimant testified that she was married to Decedent
from 1968 through August 5, 2011, which was the date he died of lung cancer at the
age of 62. During that time, he was employed for 14 years at Wyckoff Steel as a
crane operator, followed by 29 years at Schroeder Industries as a machine tool
operator. He was a former cigarette smoker, beginning at age 16 and quitting at age
32.
Decedent became a volunteer firefighter in 1968. He rose through the
ranks and eventually became the fire chief. In 2004, due to high blood pressure, he
resigned as chief. However, he accepted a position as captain and remained an active
firefighter.
2
Section 108(r) was added by Section 1 of the Act of July 7, 2011, P.L. 251, and established
“[c]ancer suffered by a firefighter” as an occupational disease.
2
Claimant presented the testimony of Timothy Cain. Cain was a
volunteer firefighter from 1999 to 2006. Cain estimated that he responded to
approximately 60 fires with Decedent from 1999 to 2006. He approximated that
over the course of a year, the fire station responded to 3 structural fires, 10 vehicle
fires, 6 brush fires, and 5 rubbish fires.
Cain witnessed Decedent fighting fires. Also, as chief, Decedent went
into structures after the fire was suppressed to see if hotspots remained. Smoke
remains inside a building following suppression of a fire. Decedent used a self-
contained breathing apparatus (SCBA) when entering active structural fires, but not
when fighting exterior fires or when he entered a building after suppression of the
fire.
Decedent was also exposed to fumes from the diesel powered fire trucks
at the station. From 1999 onward, Decedent was responsible for completing a
monthly inspection of the fire trucks. During the inspections, the trucks were left on
and running inside the station for approximately 90 minutes. No system was in place
to capture the diesel emissions, and thus, diesel fumes collected and remained in the
station during the inspections.
Next, Claimant presented the testimony of Christopher Arnal, a
volunteer firefighter from 2005 through 2010. During that time, Arnal was a
lieutenant and Decedent was a captain. Arnal responded to about 12 structural fires
with Decedent over that period. He recalled Decedent actively fighting at two of the
structural fires. Following suppression of the fires, he saw Decedent enter the
structures without a SCBA. Decedent was exposed to smoke at all of the structural
fires and his gear was covered with soot. Additionally, Decedent continued to
3
complete the monthly truck inspections that exposed him to diesel fumes, even after
his cancer diagnosis in 2009.
Claimant presented the deposition testimony of Barry L. Singer, M.D.,
who testified as a medical expert. Dr. Singer is board certified in oncology,
hematology, and internal medicine. He maintained a medical practice, which
included treatment of patients with lung cancer. However, he was not board certified
in occupational medicine and not actively involved in clinical research.
Dr. Singer testified that the evidence established Decedent was a
firefighter for 42 years. He was exposed to carcinogens while conducting monthly
inspections of the diesel fire trucks. He fought residential, commercial, vehicle,
rubbish, and chemical fires. He fought two to three interior structural fires per year.
When Decedent became chief, he did not actively fight fires. However, he was
exposed to carcinogens when examining the scene of the fire after suppression.
Dr. Singer has been reviewing files in workers’ compensation cases
since 2008. He has read extensively on the issue of firefighters’ exposure to
carcinogens. He relied on articles from epidemiologists and toxicologists regarding
the types of carcinogens common in firefighting. Dr. Singer determined that
firefighters are exposed to Group 1 carcinogens in diesel fumes, smoke, and soot.
He uses the differential diagnosis method in evaluating firefighter cases. He
considers whether firefighting was a substantial contributing factor, meaning if the
factor did not exist, and whether it is more likely than not the person would not have
the disease.
Dr. Singer believed that it is the constellation of exposures that
increases firefighters’ risk of cancer, as was the case with Decedent. He was a
firefighter for 42 years; the length of time he was exposed to carcinogens was the
4
most significant factor in the development of his cancer. Decedent had a history of
smoking, but quit at age 32. Dr. Singer stated cessation of tobacco use before age
40 significantly reduces the risk of lung cancer and he did not find it to be a
substantial contributing factor in Decedent’s death. As such, he opined that
Decedent’s lung cancer resulted from his firefighting activities.
Employer presented the deposition testimony of Robert Bradburn, the
Township’s fire chief from 2007 onward. He managed the paperwork at the station
and has participated in the National Fire Reporting System since 2011. He advised
that the station averages 150 calls per year, with approximately 6 to 8 resulting in an
actual fire.
Bradburn never witnessed Decedent fight a fire. He claimed that
Decedent remained in his vehicle while managing a fire when he was chief.
Decedent did enter the building once the fire was suppressed. However, Bradburn
claimed there were no structure fires in the Township from 2004 to 2008.
Employer also presented the deposition testimony of Julia Greer, M.D.,
a professor at the University of Pittsburgh School of Medicine, as its medical expert
on the cause of Decedent’s lung cancer. Dr. Greer has a master’s degree in public
health and cancer epidemiology. She stated that 90% of lung cancers are associated
with cigarette smoking. She opined that Decedent’s risk of lung cancer was
dramatically reduced when he quit smoking in 1982. Nonetheless, he was a heavy
smoker from age 16 to 32. He also worked in a steel mill, which would have
magnified the effects of his smoking. Decedent cut steel while working at Schroeder
Industries and metal dust is a known carcinogen.
Dr. Greer did not believe that Decedent’s service as a firefighter played
a major role in his lung cancer diagnosis. Bradburn’s testimony and records of fire
5
alarms between 1996 and 2012 showed few actual fire runs. Further, there are no
good studies on the risk of cancer in firefighters, and epidemiology is the only way
it can be studied. As such, the most likely causes of Decedent’s cancer were his age,
his smoking history, and his work in a steel mill.
At the hearing before the WCJ, Employer interposed an objection to
Dr. Singer’s opinions, claiming that he was incompetent to testify based on Frye. In
support, Employer presented the deposition testimony of Tee L. Guidotti, M.D., who
is board certified in internal, pulmonary, and occupational medicine. Dr. Guidotti
testified that he has trained in the fields of toxicology and epidemiology. He has
published research studies in peer-reviewed journals and investigated the
relationships between firefighters and occupational and environmental exposures.
Dr. Guidotti reviewed the basis for Dr. Singer’s opinion and could not
discern that any methodology was used. He opined that Dr. Singer was not qualified
to interpret the studies that he reviewed or engage in a meaningful review of the
literature involving firefighters and occupational exposures. Dr. Guidotti explained
that he was not providing an opinion on Decedent’s diagnosis. Instead, he was
rendering an opinion that Dr. Singer was not qualified to link Decedent’s lung cancer
to his firefighting duties.
Claimant presented additional deposition testimony from Dr. Singer in
response to Employer’s Frye argument. Dr. Singer stated that he considered studies
and risk factors regarding firefighters in making his determinations. Each case is
individual. He assesses the exposure of the individual to the disease, the individual’s
medical history, and the individual’s age at the time the disease develops. He has
40 years of practice and medical training. As an oncologist, he understands how
6
cancers develop, when they develop, how they progress, and how they have to be
treated.
A. First WCJ Decision
In a decision circulated on September 16, 2014 (First WCJ Decision),3
the WCJ overruled Employer’s objection based on Frye, stating that Dr. Singer is
board certified in internal medicine, hematology, and medical oncology. He treats
cancer patients, including those with lung cancer. As such, the WCJ determined that
he was competent to testify. First WCJ Decision, Claimant’s brief, Appendix A.
The WCJ found Claimant, Cain, and Arnal credible. First WCJ
Decision, Findings of Fact No. 13(a)-(b), at 11; Claimant’s brief, Appendix A. The
two firefighters provided testimony of their own experiences regarding firefighting.
Both credibly described Decedent’s exposure to smoke, diesel emissions, and soot.
Their testimony supported Dr. Singer’s opinion that as a firefighter, Decedent was
continually exposed to IARC Group 1 carcinogens, which cause lung cancer.
Bradburn’s testimony was deemed credible, but only where it was consistent with
Cain and Arnal’s testimony. First WCJ Decision, Findings of Fact No. 13(c), at 11;
Claimant’s brief, Appendix A.
The WCJ found Dr. Singer more credible than Drs. Greer and Guidotti.
The WCJ noted that Dr. Greer was not an oncologist and does not treat patients. She
agreed that Decedent was exposed to carcinogens as a firefighter, but blamed his
lung cancer on his history of smoking, even though Decedent stopped smoking 30
years prior to his cancer diagnosis. The WCJ also noted that Dr. Greer failed to
3
Employer did not attach any of the prior decisions of the WCJ, the Board, or this Court
to its appellate brief or include them in the Reproduced Record, as required by Pennsylvania Rules
of Appellate Procedure 2111, 2152, and 2153, Pa. R.A.P. 2111, 2152, and 2153. Claimant,
however, attached them to her brief.
7
review the testimony of Arnal and Cain. First WCJ Decision, Findings of Fact No.
13(d)-(e), at 11; Claimant’s brief, Appendix A. As to Dr. Guidotti, the WCJ rejected
his generalized opinions on the issue of causation that did not relate specifically to
Decedent’s personal experiences as a firefighter. First WCJ Decision, Findings of
Fact No. 13(f), at 11; Claimant’s brief, Appendix A. Accordingly, the WCJ granted
the fatal claim petition.4 First WCJ Decision, Conclusions of Law No. 2, at 13.
B. First Board Opinion & Order
Employer appealed to the Board, challenging the First WCJ Decision
on two grounds. First, Employer argued that the WCJ erred in awarding benefits
because Claimant failed to introduce Pennsylvania Fire Information Reporting
System (PennFIRS) reports to establish that Decedent was directly exposed to
carcinogens. Second, Employer contended that the WCJ erred in rejecting its Frye
challenge to Claimant’s medical expert, Dr. Singer. The Board agreed with
Employer on the first issue and concluded that it need not reach the second issue.
See First Board Opinion & Order dated March 25, 2016; Claimant’s brief, Appendix
B.
The Board held that volunteer firefighters were required, under Section
301(f) of the Act, 77 P.S. §414,5 to introduce PennFIRS reports in order to establish
direct exposure to IARC Group 1 carcinogens. Before the WCJ, Claimant, along
with two fellow firefighters, testified about Decedent’s exposure to carcinogens.
The Board deemed this lay witness testimony to be insufficient under the Act. As
such, the Board reversed the First WCJ Decision.
4
Claimant’s lifetime claim petition was denied. Claimant did not appeal the denial.
5
Section 301(f) was added by Section 2 of the Act of July 7, 2011, P.L. 251.
8
C. Proceedings Before This Court
Claimant petitioned for review to this Court. See Steele v. Workers’
Compensation Appeal Board (Findlay Township), 155 A.3d 1173 (Pa. Cmwlth.
2017). We agreed with the Board that Section 301(f) of the Act mandates the
following:
Any claim by a member of a volunteer fire company shall
be based on evidence of direct exposure to a carcinogen
referred to in [S]ection 108(r)[, 77 P.S. §27.1(r),] as
documented by reports filed pursuant to [PennFIRS] and
provided that the member’s claim is based on direct
exposure to a carcinogen referred to in [S]ection 108(r).
77 P.S. §414. Because Decedent was a volunteer firefighter and PennFIRS reports
were not entered into evidence, Claimant could not prevail under Section 108(r) of
the Act. Steele, 155 A.3d at 1178.
However, we noted that other sections of the Act, namely Section
108(o), 77 P.S. §27.1(o),6 and Section 301(c)(1), 77 P.S. §411(1),7 could possibly
provide Claimant with relief. In response to Employer’s argument that Claimant
was barred from pursuing benefits from a different section of the Act, we observed
that Claimant’s fatal claim petition was silent as to the theory of compensability that
she was pursuing and that, if she was entitled to relief under any section of the Act,
the petition would be considered as filed under the appropriate section. See City of
6
Section 108(o) establishes, as an occupational disease, “[d]iseases of the heart and lungs,
resulting in either temporary or permanent total or partial disability or death, after four years or
more of service in fire fighting for the benefit or safety of the public, caused by extreme over-
exertion in times of stress or danger or by exposure to heat, smoke, fumes or gasses, arising directly
out of the employment of any such firemen.” 77 P.S. §27.1(o). Section 108(o) was added to the
Act by Section 1 of the Act of October 17, 1972, P.L. 930.
7
Section 301(c)(1) provides for compensation for injuries arising in the course of
employment “and such disease or infection as naturally results from the injury or is aggravated,
reactivated or accelerated by the injury . . . .” 77 P.S. §411(1).
9
Philadelphia v. Workers’ Compensation Appeal Board (Cospelich), 893 A.2d 171,
179 (Pa. Cmwlth. 2006); see also General Refractories Co. v. Workmen’s
Compensation Appeal Board (Wright), 635 A.2d 120, 122-23 (Pa. 1993). As such,
we vacated the Board’s order and remanded for consideration of whether Section
108(o) or Section 301(c)(1) provide a basis for recovery. Steele, 155 A.3d at 1179.
D. Second WCJ Decision
On remand, in a decision circulated on May 1, 2018 (Second WCJ
Decision), the WCJ granted the fatal claim petition pursuant to Section 301(c)(1) of
the Act. The WCJ reiterated her prior findings of fact and credibility determinations,
adding that, for purposes of Section 301(c)(1), Claimant established that Decedent’s
last exposure occurred within 300 weeks of his death, i.e., after November 5, 2005.
This was based on Arnal’s testimony that he and Decedent fought a dozen fires
together from 2005 and 2010 and Cain and Arnal’s testimony that Decedent was
exposed to diesel fuel fumes at the fire station from 1999 through 2009. Thus, the
WCJ concluded that Claimant met her burden of proof that the exposure occurred
within 300 weeks of Decedent’s death on August 5, 2011. See Second WCJ
Decision, Claimant’s brief, Appendix D.
E. Second Board Opinion & Order
Employer appealed to the Board, arguing Claimant did not meet her
burden of proving Decedent’s last exposure was within 300 weeks of his death.
Employer argued that Decedent’s last exposure to a cancer hazard had to be no
earlier than November 5, 2005, and pointed out Bradburn’s testimony that Decedent
10
did not respond to a structure fire from 2004 to 2008. Further, none of the fire station
incident reports showed that Decedent responded to any of the other reported fires.
The Board rejected Employer’s argument. The WCJ credited Arnal’s
testimony that Decedent completed monthly equipment checks, which exposed him
to diesel emissions through 2009. Further, he and Decedent responded to about 12
structure fires and 6 car, trash, or grass fires between 2005 and 2010. The Board
therefore determined that Arnal’s testimony was sufficient to establish that Decedent
was exposed to cancer hazards within 300 weeks of his death.
Employer also argued that the WCJ failed to properly address its Frye
argument. Employer contended that the WCJ should have realized that Dr.
Guidotti’s testimony established Dr. Singer’s lack of adherence to scientific
principles. The Board disagreed. The Board noted that Dr. Singer was a board-
certified oncologist and treated cancer patients. He testified that he was familiar
with how cancers develop, and part of his practice includes examining the etiology
of cancers. He reviewed and relied upon scientific and medical studies to determine
causation. Moreover, the WCJ found that Dr. Singer testified credibly that his
methods were common in the practice of oncology. As such, the Board affirmed the
Second WCJ Decision. See Second Board Opinion & Order dated December 9,
2019, Claimant’s brief, Appendix E.
II. Issues
Employer now petitions this Court for review of the Second Board
Opinion and Order; its issues are twofold.8 First, Employer claims the Board erred
8
On review, we determine whether constitutional rights were violated, whether errors of
law were committed, or whether necessary findings of fact were supported by substantial
(Footnote continued on next page…)
11
in holding that the evidence established Decedent’s last date of exposure was within
the statutory deadline of 300 weeks. Second, Employer argues the Board erred in
its application of Frye to Dr. Singer’s testimony.
III. Analysis
Regarding Employer’s first issue, we begin with a review of Section
301(c)(1) of the Act, which provides:
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 [Section 301(f) of the Act, 77 P.S. §414,]
arising in the course of his employment and related
thereto, and such disease or infection as naturally results
from the injury or is aggravated, reactivated or accelerated
by the injury; and wherever death is mentioned as a cause
for compensation under this act, it shall mean only death
resulting from such injury and its resultant effects, and
occurring within three hundred weeks after the injury.
The term “injury arising in the course of his employment,”
as used in this article, shall not include an injury caused by
an act of a third person intended to injure the employe
because of reasons personal to him, and not directed
against him as an employe or because of his employment;
nor shall it include injuries sustained while the employe is
operating a motor vehicle provided by the employer if the
employe is not otherwise in the course of employment at
the time of injury; but shall include all other injuries
sustained while the employe is actually engaged in the
furtherance of the business or affairs of the employer,
whether upon the employer’s premises or elsewhere, and
shall include all injuries caused by the condition of the
premises or by the operation of the employer’s business or
affairs thereon, sustained by the employe, who, though not
so engaged, is injured upon the premises occupied by or
competent evidence. Stepp v. Workers’ Compensation Appeal Board (FairPoint Communications,
Inc.), 99 A.3d 598, 601 n.6 (Pa. Cmwlth. 2014).
12
under the control of the employer, or upon which the
employer’s business or affairs are being carried on, the
employe’s presence thereon being required by the nature
of his employment.
77 P.S. §411(1) (emphasis added). When Claimant originally pursued her claim
under Section 108(r) of the Act, she was entitled to the 600-week time limit set forth
in Section 301(f)
with respect to disability or death resulting from an
occupational disease having to occur within three hundred
weeks after the last date of employment in an occupation
or industry to which a claimant was exposed to the hazards
of disease, claims filed pursuant to cancer suffered by the
firefighter under [S]ection 108(r) 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.
77 P.S. §414 (emphasis added). Under Section 301(c)(1), she must now establish
that Decedent’s death resulted from his work injury and that its resultant effects
occurred within 300 weeks of the injury.
In Kimberly Clark Corporation v. Workers’ Compensation Appeal
Board (Bromley), 161 A.3d 446 (Pa. Cmwlth. 2017), we addressed the burden of
proof required in a Section 301(c)(1) claim. We explained:
[The law does not define] precisely when the “injury”
occurs in disease as injury cases under Section 301(c)(1)
of the Act. However, David B. Torrey and Andrew E.
Greenberg, in Workers’ Compensation: Law & Practice
(3[d] ed. 2008), opined: “The commencement date
applicable to a disease as injury case [under Section
301(c)(1) of the Act] is appropriately conceived of as the
last date of injurious exposure to the agent causing the
disease, whether or not such last exposure is disabling.”
Id. § 5:19 (emphasis added). Specifically, for death claims
in disease as injury cases, Torrey and Greenberg declared
that if “the employee dies more than 300 weeks after the
13
injury (last injurious exposure to the hazardous condition),
then the fatal claim will be barred.” Id. § 5:20.
Kimberly Clark, 161 A.3d at 463-64 (emphasis in original). As such, a claimant
must prove, as follows:
[W]hether a hazard exists is a question of fact for the
[WCJ] to determine. Furthermore, [. . .] a claimant’s
burden of proof related to this issue is not overly
demanding. We have also asserted that ‘[s]ince
claimant’s exposure is a factual question, the claimant
need not present scientific evidence or expert testimony to
prove the existence of the hazard in the workplace.’
Mauger [&] Co[.] v. Workmen’s Comp[.] Appeal B[d.]
(Waltz), [598 A.2d 1035, 1037 (Pa. Cmwlth.] 1991). ‘The
[WCJ] may rely solely on the testimony of the claimant or
other witnesses to prove the existence of and exposure to
the hazard.’ Id.
Id. at 465 (emphasis added) (quoting Gray v. Workmen’s Compensation Appeal
Board (Pittsburgh Board of Education), 657 A.2d 77, 80-81 (Pa. Cmwlth. 1995)).
Employer claims that the WCJ had no evidence on which to base a
finding of fact that Decedent was injuriously exposed to a hazard that caused his
cancer on or after November 5, 2005. The WCJ relied on the testimony of Arnal to
establish Decedent was exposed to cancer-causing agents within 300 weeks of his
death. Employer claims that Arnal’s testimony is insufficient because Bradburn’s
testimony refutes that Decedent’s last date of injurious exposure was within 300
weeks of his death.
Claimant counters that the WCJ credited Cain and Arnal, not Bradburn.
Cain and Arnal’s testimony establishes that Decedent continued to be exposed to
smoke and diesel fumes through 2010. Further, station records, signed by Bradburn,
show that Decedent responded to an apartment building fire in 2008. Reproduced
Record (R.R.) at 1563a-65a.
14
The law is well established that “[t]he WCJ is the ultimate factfinder
and has exclusive province over questions of credibility and evidentiary weight.”
University of Pennsylvania v. Workers’ Compensation Appeal Board (Hicks), 16
A.3d 1225, 1229 n.8 (Pa. Cmwlth. 2011). The WCJ is free to accept or reject, in
whole or in part, the testimony of any witness. Griffiths v. Workers’ Compensation
Appeal Board (Red Lobster), 760 A.2d 72, 76 (Pa. Cmwlth. 2000). When
considering whether the WCJ’s decision is supported by substantial evidence we
“must view the evidence in a light most favorable to the party who prevailed before
the factfinder” and “draw all reasonable inferences which are deducible from the
evidence in support of the factfinder’s decision in favor of that prevailing party.”
Waldameer Park, Inc. v. Workers’ Compensation Appeal Board (Morrison), 819
A.2d 164, 168 (Pa. Cmwlth. 2003). “[I]t does not matter that there is evidence in
the record which supports a factual finding contrary to that made by the WCJ.
Rather, the pertinent inquiry is whether there is any evidence which supports the
WCJ’s factual finding.” Id.
Here, there is ample evidence of record to support the WCJ’s
conclusion that Decedent was exposed to carcinogens on or after November 5, 2005.
The WCJ credited Arnal’s testimony and rejected Bradburn’s to the extent it was
inconsistent with Arnal’s. Arnal testified that he and Decedent responded to about
12 structural fires between 2005 and 2010, and Decedent continued to complete the
monthly truck inspections, where he was exposed to diesel emissions, even after his
2009 cancer diagnosis. The record also shows Decedent responded to a fire at an
apartment building on June 27, 2008. R.R. at 1563a-65a (Fire Incident Report states
building suffered fire and smoke damage; Bradburn signed documentation that
Decedent responded to fire). As such, we reject Employer’s first contention of error.
15
We now turn to Employer’s second claim of error involving Frye.
Pennsylvania Rule of Evidence 702 provides:
A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in the
form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge is beyond that possessed by the average
layperson;
(b) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; and
(c) the expert’s methodology is generally accepted in the
relevant field.
Pa. R.E. 702. Of relevance here is Rule 702(c), about which the comment to Rule
702 advises:
Pa. R.E. 702(c) differs from [Federal Rule of Evidence
(F.R.E.)] 702 in that it reflects Pennsylvania’s adoption of
the standard in [Frye]. The rule applies the “general
acceptance” test for the admissibility of scientific,
technical, or other specialized knowledge testimony. This
is consistent with prior Pennsylvania law. See Grady v.
Frito-Lay, Inc., [839 A.2d 1038 (Pa. 2003)]. The rule
rejects the federal test derived from Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
Pa. R.E. 702, comment. A Frye hearing is necessary when there are grounds to
believe that an expert witness has not applied accepted scientific methodology to
reach his conclusion. Betz v. Pneumo Abex LLC, 44 A.3d 27, 74 (Pa. 2012). Its
purpose is to keep “junk science” out of the record. Id. Our Supreme Court has
explained that (1) the Frye rule “applies to an expert’s methods, not his conclusions”;
(2) “the proponent of the expert scientific evidence bears the burden of proof”; and
16
(3) “the standard of appellate review . . . is the abuse of discretion standard.” Grady,
839 A.3d at 1047.
Employer accepts the Board’s statement that the proponent of scientific
evidence must demonstrate his methodology is generally accepted by scientists in
the relevant field as a method for reaching a conclusion to which the expert will
testify. However, Employer argues that the Board misstated the relevant field of
science. The Board determined that Dr. Singer’s methods are common in the
practice of medical oncology. But, Dr. Singer was not diagnosing a patient’s cancer
where the differential diagnosis method may be applicable. Rather, he was offering
an opinion on whether certain carcinogens cause cancer.
Employer contends that numerous scientific studies have been
conducted on the issue of whether the occupation of firefighter is a substantial
contributing factor to the development of certain kinds of cancer. There is a lack of
consensus in the scientific community on the issue, i.e., studies have reached
conflicting results.
Dr. Guidotti has conducted studies and written articles regarding
firefighters’ cancer risks. He is an expert on the methodology used by scientists in
examining a potential agent and a given cancer. He claims Dr. Singer failed to
adhere to any accepted method for determining causation and only scantily reviewed
literature on the topic. For example, Dr. Singer used an article written by Dr.
Guidotti, without referring to subsequent articles that more fully interpret the results.
Claimant responds that Dr. Singer utilized a competent scientific
method to determine whether Decedent’s exposures to IARC Group 1 carcinogens
were a significant contributing factor in the cause of his lung cancer. Claimant states
that Frye applies to “novel” scientific evidence. Here, there is nothing novel about
17
an oncologist reviewing Decedent’s work history, exposure history, and medical
records in order to provide an opinion as to whether the exposures constituted
significant contributing factors in the development of lung cancer. Moreover, Dr.
Guidotti offered no opinion on Dr. Singer’s method of proving causation, and his
epidemiologic opinion is not relevant to the specific factual issues presented in this
claim.
This case began as an occupational disease claim wherein Claimant had
the burden of proving, under Section 108(r) of the Act: “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(r). As explained in City of
Philadelphia Fire Department v. Workers’ Compensation Appeal Board (Sladek),
195 A.3d 197 (Pa. 2018):
[Section 108(r) of the Act] requires the claimant to
establish a general causative link between the [decedent’s]
type of cancer and a Group 1 carcinogen. 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 [decedent was] afflicted. It does not require the
claimant to prove that the identified Group 1 carcinogen
actually caused [decedent’s] cancer. Section 108(r)
embodies a legislative acknowledgement that firefighting
is a dangerous occupation that routinely exposes
firefighters to Group 1 carcinogens that are known to
cause various types of cancers. The “general causation”
requirement under Section 108(r) constitutes a recognition
that different types of cancers have different etiologies and
it weeds out claims for compensation for cancers with no
known link to Group 1 carcinogens.
Id. at 208 (emphasis in original) (footnotes omitted).
18
Sladek involved a claim that a firefighter’s malignant melanoma was
work related. As such, there was a question as to whether that type of cancer was
an occupational disease associated with firefighting. The Supreme Court stated:
In this regard, epidemiological evidence is clearly relevant
and useful in demonstrating general causation.
Epidemiology deals with, [inter alia], the identification of
potentially causative associations in various populations
between possible causative agents and the resulting
incidence of particular diseases and seeks to generalize
those results. In so doing, epidemiology may provide
“useful information as to whether there is a relationship
between an agent and a disease and, when properly
interpreted, can provide insight into whether the agent can
cause the disease.” Given its focus on identifying
generalized causal relationships between potential
causative agents and the resulting incidence of disease,
epidemiology’s focus on statistical analysis may be
uniquely suited to illuminate whether there is a general
causal relationship between types of cancer and Group 1
carcinogens.
Id. at 208-09 (internal citations omitted) (footnote omitted). As a result, the Supreme
Court ordered the matter remanded to the Board to determine whether the claimant’s
expert satisfied the Frye standard in linking malignant melanoma to firefighting.9
Claimant is now before the Court pursuant to Section 301(c)(1) of the
Act, which requires her to prove an injury “arising in the course of [Decedent’s]
employment and related thereto, and such disease or infection as naturally results
from the injury or is aggravated, reactivated or accelerated by the injury.” 77 P.S.
§411(1). As such, it is Claimant’s burden of proving Decedent’s death was causally
related to the disease of lung cancer. Kimberly Clark, 161 A.3d at 451. It is well-
settled that Section 301(c)(1) of the Act encompasses diseases such as cancer. Id.
9
The opposing experts in Sladek were Dr. Singer and Dr. Guidotti.
19
In Kimberly Clark, the claimant brought a fatal claim petition under
Section 301(c)(1) of the Act, claiming that the decedent’s death from bladder cancer
was caused by chemicals in the employer’s workplace. The employer operated a
paper manufacturing company where the decedent worked as an electrician. The
claimant presented evidence that the decedent’s work clothes often had small holes
and were covered with paper dust and dye. A co-worker testified to various types
of chemicals used in the workplace. The claimant’s expert, Dr. Singer, testified that
certain chemicals can seep into urine and damage the bladder. Benzene found in
cigarette smoke is a common cause of bladder cancer. However, workers who are
not provided with adequate protections when using certain chemicals are at a high
risk of exposure. Dr. Singer presented studies linking higher bladder cancer risks
with workers exposed to dye production, chlorinated solvents, and asbestos. The
employer’s expert refuted that these exposures were linked to bladder cancer.
The WCJ found in favor of the claimant and the employer appealed,
claiming, inter alia, that the claimant did not meet her burden of proof. The Board
rejected the employer’s argument and it petitioned this Court for review. We
explained:
Dr. Singer received his medical degree from Johns
Hopkins University and is board[ ]certified in internal
medicine. He has specialized in oncology (75% of his
current practice) since the 1970s, and he has been involved
with the treatment of bladder cancer over his 40 years of
practice. Based upon his experience and extensive review
of [the decedent’s] medical records, the depositions, [the
employer’s] MSDS [(Material Safety Data Sheet)],
NIOSH [(National Institute for Occupational Safety and
Health)], OSHA [(Occupational Safety and Health
Administration),] and IARC literature and journal articles,
he concluded that [the decedent’s] co-exposure to xylene,
asbestos, silica[,] and dyes over the years while working
20
at [the employer’s] facility since 1973 until August 11,
2005[,] was the substantial cause of the bladder cancer
from which [the decedent] died.
Id. at 467 (internal citations omitted) (footnote omitted).
This Court also rejected the employer’s claim that Dr. Singer’s
testimony lacked foundation because he did not establish a definitive link between
the chemicals and bladder cancer and failed to establish scientific facts or data based
on his own knowledge. We stated:
[T]he Pennsylvania Rules of Evidence prescribe a
threshold for admission of expert testimony dependent
upon the extent to which the expert’s opinion is based on
facts and data:
Rule 703. Bases of opinion testimony by experts
The facts or data in the particular case upon which
an expert bases an opinion or inference may be
those perceived by or made known to the expert at
or before the hearing. If of a type reasonably relied
upon by experts in the particular field in forming
opinions or inferences upon the subject, the facts or
data need not be admissible in evidence.
Pa. R.E. 703.
Id. at 467 n.26. We then held:
Where, as here, Dr. Singer’s opinions were based upon his
experience and extensive review of [the decedent’s]
medical records, the depositions, [the employer’s] MSDS,
NIOSH, OSHA[,] and IARC literature and journal articles,
there was a foundation for a link between asbestos and
bladder cancer and, thus, the WCJ did not abuse his
discretion by overruling [the employer’s] objection.
Id.
In the present case, as in Kimberly Clark, Claimant is proceeding under
Section 301(c)(1) of the Act, and as reiterated above:
21
[W]hether a hazard exists is a question of fact for the
[WCJ] to determine. Furthermore, [. . .] a claimant’s
burden of proof related to this issue is not overly
demanding. We have also asserted that ‘[s]ince
claimant’s exposure is a factual question, the claimant
need not present scientific evidence or expert testimony to
prove the existence of the hazard in the workplace.’
Mauger[, 598 A.2d at 1037]. ‘The [WCJ] may rely solely
on the testimony of the claimant or other witnesses to
prove the existence of and exposure to the hazard.’ Id.
Kimberly Clark, 161 A.3d at 464 (emphasis added) (quoting Gray, 657 A.2d at 80-
81).
Under Section 301(c)(1) of the Act, Dr. Singer is not determining the
overall risk of lung cancer in the occupation of firefighting. He is addressing the
individual risk of lung cancer exposure one particular decedent faced at work. In
doing so, he used the differential diagnosis method.10 Differential diagnosis
“involves listing all possibilities in terms of diseases and causes, and then
eliminating causes until a final or most probable diagnosis is reached.” Hutz v.
Workers’ Compensation Appeal Board (City of Philadelphia), 147 A.3d 35, 41 (Pa.
Cmwlth. 2016) (emphasis in original).
Here the WCJ found that Decedent was exposed to smoke, fumes, soot,
and diesel emissions, all of which are IARC Group 1 carcinogens that cause lung
10
As stated in Stange v. Janssen Pharmaceuticals, Inc., 179 A.3d 45, 55 (Pa. Super. 2018):
There is nothing scientifically novel about using differential
diagnosis to conclude that [swelling of breast tissue] was caused by
[an antipsychotic medication]. Certainly differential diagnosis is a
generally accepted methodology; indeed, [the defendant] does not
dispute the validity of differential diagnosis generally. See Cummins
v. Rosa, 846 A.2d 148, 151 (Pa. Super. 2004) (Frye did not apply
where the methodology employed by the plaintiffs’ medical experts
was generally accepted among the medical community for diagnosis
and treatment; plaintiffs’ experts analyzed plaintiff-wife’s medical
records and relied upon their personal expertise to reach a
conclusion regarding the source of her injuries).
22
cancer. Second WCJ Decision, Findings of Fact No. 12(c), at 11; Claimant’s brief,
Appendix D. Employer has not disputed that these carcinogens can cause lung
cancer or that Decedent was exposed to them.
As addressed by the Board, Dr. Singer testified that in rendering an
opinion, he relied on the “IARC Monograph,” which evaluates cancer risks in
humans, and the “IOM [(Institute of Medicine)] Manual.” Second Board Opinion
& Order at 9; Claimant’s brief, Appendix E. Dr. Singer also reviewed the “AMA
[(American Medical Association)] Guides for the Evaluation of Disease and Injury
Causation.” Id. at 10. He reviewed the AMA Guides on methodology, which
discusses reviewing and assessing the available evidence. Id. at 19. Dr. Singer
advised that the AMA Guides required a review of the available literature, which he
completed. Id. He also reviewed Decedent’s medical records and the testimony of
the lay witnesses and medical experts that participated in the case. He concluded
the length of time, 1968 through 2010, that Decedent was exposed to Group 1
carcinogens was the most significant contributing factor to the development of his
lung cancer.
As in Kimberly Clark, Claimant’s burden of proof was not whether
cancer was an occupational risk; it was whether the hazards Decedent was exposed
to in his workplace caused his cancer. We find no abuse of discretion by the Board
in concluding Dr. Singer’s methodology was competent.
IV. Conclusion
For all the foregoing reasons, the Board’s order is affirmed.
MICHAEL H. WOJCIK, Judge
23
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Findlay Township, :
:
Petitioner :
:
v. : No. 6 C.D. 2020
:
Workers’ Compensation Appeal :
Board (Steele), :
:
Respondent :
ORDER
AND NOW, this 7th day of January, 2021, the order of the Workers’
Compensation Appeal Board, dated December 9, 2019, is hereby AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge