Pennsylvania Supreme Court Rules In Favor of Strong Cancer Presumption in Firefighters

The Pennsylvania Supreme Court handed down a decision last week upholding the cancer presumption act for firefighters by reversing a lower court ruling that would have gutted it. The decision in the case of City of Philadelphia Fire Department v. Workers’ Compensation Appeal Board Appeal Of Scott Sladek, required the court to reject the city’s position that would have made it harder for firefighters to establish the presumption and easier for cities to rebut it.

The firefighter involved, Battalion Chief Scott Sladek, was diagnosed with malignant melanoma that required surgery to remove. He was granted worker’s compensation benefits by a workers’ comp judge, and over the city’s objection the ruling was upheld by the Workers’ Compensation Appeal Board.

The essence of both rulings was that Chief Sladek established his melanoma was an occupational disease under the presumption act through evidence that as a firefighter he had been exposed to Group 1 carcinogens, and that the city failed to rebut the presumption.

The city appealed the decision to the Commonwealth Court who reversed the Appeal Board. The court concluded Chief Sladek failed to meet his initial burden to show “that his malignant melanoma is a type of cancer caused by the Group 1 carcinogens to which he was exposed in the workplace to establish an occupational disease.” In doing so, the court established a requirement that the firefighter prove an exposure to a specific carcinogen that causes his/her cancer in order to gain the presumption provided by the law. In addition, the court allowed the presumption to be “rebutted by a general causation opinion, based entirely upon epidemiology, without any opinion specific to the firefighter/claimant making the claim.”

Chief Sladek appealed. The Supreme Court initially explained an important distinction in the case, the difference between general causation (ie. that something CAN cause cancer) and specific causation (ie. that this chemical DID cause the cancer in question):

  • [G]eneral causation “tells us that something can cause an outcome. . . .
  • So general causation is essentially a statement of what might happen. . . .
  • [I]t is the big picture.”
  • Specific causation involves an analysis of circumstances and risk factors present in a particular case.

The Supreme Court then began analyzing the cancer presumption act:

  • The Act was amended in 2011 to add two provisions, Sections 108(r) and 301(f), dealing specifically with firefighters claiming benefits for cancer alleged to be caused as a result of performing the duties of firefighters.
  • Generally, reading the sections together, the statutory framework for litigation of claims for workers’ compensation benefits by firefighters afflicted with cancer proceeds in discrete stages.
  • Initially, the claimant must establish that he or she has an “occupational disease,” as that term is defined in Section 108(r).
  • Next, to establish an evidentiary presumption of entitlement to compensation in accordance with section 301(f), the claimant must establish that he or she served four or more years in continuous firefighting duties; had direct exposure to a Group 1 carcinogen; and passed a physical examination prior to asserting a claim or prior to engaging in firefighting duties (and the examination failed to reveal any evidence of cancer).
  • Finally, if the claimant succeeds in demonstrating an occupational disease and an entitlement to the evidentiary presumption of compensability, then the burden of proof shifts to the employer, who must offer “substantial competent evidence that shows that the firefighter’s cancer was not caused by the occupation of firefighting.”
  • The express language of Section 108(r), namely that the claimant has a “cancer … which is caused by exposure to a known (Group 1) carcinogen” clearly imposes an initial burden of causation on the claimant.
  • Importantly, however, the provision only requires the claimant to establish a general causative link between the claimant’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 claimant is afflicted.
  • It does not require the claimant to prove that the identified Group 1 carcinogen actually caused claimant’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.
  • The burden imposed by Section 108(r) is not a heavy burden.
  • In this regard, epidemiological evidence is clearly relevant and useful in demonstrating general causation.
  • While epidemiological evidence supports the burden of establishing general causation, where the claimant has established an entitlement to the evidentiary presumption of compensability under Section 301(f), such epidemiological evidence is not sufficient to rebut the presumption.
  • [T]he evidence required to rebut this presumption must show that “the firefighter’s cancer was not caused by the occupation of firefighting.”
  • In other words, the language of Section 301(f) requires the employer to produce a medical opinion regarding the specific, non-firefighting related cause of claimant’s cancer.
  • For the reasons set forth hereinabove, we reverse the decision of the Commonwealth Court and remand for proceedings consistent with this Opinion.

The case is now being remanded back to the Workers’ Compensation Appeal Board for additional review of the admissibility of some of the expert testimony.

Here is a copy of the decision: 2018-City of Phila. Fire Dep’t v. Workers’ Comp. Appeal Bd

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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