Case Law Update | Hutz v. WCAB (Pa. Cmwlth. September 7, 2016) | PA Work Injury

September 7, 2016

Below please find a Case Law Update including Hutz v. Workers Compensation Appeal WCAB (City of Philadelphia), a September 7th decision from the Commonwealth Court of Pennsylvania. Similar to Sladek (from last week’s update), this decision involves cancer contracted by a firefighter. Here, the court affirmed WCAB’s order denying claimant’s petition seeking total disability benefits under §108(r) for prostate cancer contracted from alleged direct exposure to IARC Group I carcinogens.

 

Claimant’s Three Arguments on Appel

  1. WCAB misinterpreted §301(f) as requiring that a firefighter must file a claim petition within 300 weeks of his last occupational exposure for the compensability presumption to apply;
  2. Even assuming §301(f) creates a limitation on the time allotted a firefighter diagnosed with cancer to file a claim petition, the discovery rule applies extending the filing time; and
  3. WCAB’s alternative determination that employer rebutted §301(f)’s statutory presumption of compensability is not supported by competent evidence or pertinent legal authority.  

Claimant sought benefits in April 2012 for a three-month closed period in 2006 (March-June), for prostate cancer. Claimant filed his claim within the 600-week period following his last day of employment; however, it was about 318 weeks after his radical prostatectomy in March 2006. The court explained that although claimant’s cancer occurred in 2006, he filed his claim petition in 2012, outside the 300-week period entitling him to §301(f)’s rebuttable compensability presumption. The court agreed that after the three-month period, claimant was not disabled by an occupational disease and any exposure after returning to work in 2006, but before retiring in 2008, could not be causally related to his prostate cancer that was cured by surgery and therapy prior to his return.

 

The court went on to explain that regardless of the filing date, when seeking compensation for cancer under §108(r), he must establish that his disease is a type of cancer caused by exposure to IARC Group I carcinogens. The court held claimant failed to establish this causal relationship; therefore, regardless of the date filed, §301(f)’s compensability presumption was unavailable. As such, the court explained any further discussion of the discovery rule’s applicability to the 300-week filing limitation period for the compensability presumption was unnecessary. Moreover, the court echoed pitfalls WCJ found in claimant’s expert testimony, agreeing that the expert failed to credibly or persuasively establish causation. For example, claimant’s expert was never published on the etiology of cancer or firefighters, performed no research on the etiology of prostate cancer, did not know the methodologies used in linking a given exposure to a given cancer, was unable to cite any authority in asserting the differential diagnosis methodology is the accepted methodology in determining a potential causative relationship between a given agent and a given cancer, was not familiar with the Bradford Hill criteria used in epidemiological research to determine a cause-and-effect relationship between a particular agent and the development of a disease, and never treated or examined claimant. As a result, the burden of rebutting an established causal relationship never fell upon employer. The court, therefore, explained that claimant’s contention that employer’s expert testimony did not constitute substantial competent evidence—because it did not address claimant’s individual condition or identify the cause of his prostate cancer—lacked merit.

 

Link: http://www.pacourts.us/assets/opinions/Commonwealth/out/2140CD15_9-7-16.pdf?cb=1   

 

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