Case Law Update | City of Phila. Fire Dep't v. WCAB (Pa. Cmwlth. August 12, 2016) | PA Work Injury

August 12, 2016

City of Philadelphia Fire Department v. Workers’ Compensation Appeal WCAB (Sladek) where the Court concluded WCAB erred in its construction of Section 108(r). 


Takeaway: To establish that a firefighter’s cancer is an occupational disease, the firefighter must show that he has been diagnosed with a type of cancer “caused by exposure to a known carcinogen which is recognized as a Group 1 carcinogen.”  77 P.S. §27.1(r).  Once a firefighter establishes that his type of cancer is an occupational disease, then he may take advantage of the statutory presumption in Section 301(e) and (f) of the Act.  The presumption relieves the firefighter of the need to prove that his cancer was caused by his workplace exposure and not another cause. So long as the firefighter can show four years of continuous service and the absence of cancer prior to that service, he is entitled to compensation under Section 301(f) of the Act. 77 P.S. §414. 


On appeal, employer argued WCAB erred in: (1) holding claimant met his burden of proving malignant melanoma is an occupational disease under Section 108(r) of the Act; (2) holding employer’s evidence did not prove that claimant’s malignant melanoma was not caused by exposure to arsenic or soot; and (3) refusing to consider whether the opinion of claimant’s expert satisfied the Frye standard. 


The court explained that WCAB failed to give effect to the “caused by” language in between “cancer suffered by a firefighter” and “exposure to a known Group 1 carcinogen” in Section 108(r). As a result, WCAB incorrectly concluded that “claimant was not required to prove that he was exposed to a particular carcinogen in Group 1 or prove that the Group 1 carcinogens to which he was exposed specifically cause malignant melanoma as part of his initial burden.”


The Court outlined various considerations for remand:

  1. WCAB must consider whether the expert testimony of claimant’s doctor (Barry L. Singer, M.D.) was properly admitted. 
    1. First determining whether the Act requires a medical expert to satisfy Pennsylvania Rule of Evidence 702 (i.e., the Frye standard). 
    2. If so, WCAB must determine whether Dr. Singer’s report satisfies this standard. 
  2. If it concludes that Dr. Singer’s report was properly admitted, WCAB must remand the matter to the WCJ to determine whether to accept the causation opinion of Dr. Singer or the employer’s expert witness (Tee L. Guidotti, M.D., M.P.H., D.A.B.T.).
    1. Should Claimant’s evidence on causation prevail, he will have established that melanoma is an occupational disease under Section 108(r). At that point, the presumption in Section 301(e) comes into play and assists claimant, who is relieved of having to rule out other causes for his melanoma (e.g., his outdoor lifestyle).
  3. The WCJ must determine whether claimant had four or more years in continuous firefighting duties, can establish direct exposure to a carcinogen referred to in section 108(r), and successfully passed a physical examination which failed to reveal any evidence of the condition of cancer prior to engaging in firefighting duties. Section 301(f) of the Act, 77 P.S. §414.


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