Clarifying the Burden in a Section 108(r) Occupational Disease Claim: The Impact of Sladek and Hutz

Defense Digest, Vol. 22, No. 4, December 2016

By Ashley S. Talley, Esq.*

As a general matter, an individual has the right seek compensation for a wide variety of injuries under the Pennsylvania Workers’ Compensation Act, including a category of claims for occupational diseases generally thought of as injuries that predominate in a specific profession as a result of long-term exposure to a hazardous condition. The definition of these injuries is governed by Section 108 and includes a specific category for occupational diseases suffered by firefighters. Specifically, Section 108(r) reads: “[c]ancer suffered by a firefighter which is caused by exposure to a known carcinogen…recognized as a Group 1 carcinogen by the International Agency for Research on Cancer.”

Recent case law has interpreted the requirements of Section 108 and clarified the exact standards and presumptions to be used when evaluating a Section 108(r) occupational disease claim. In the case of Hutz v. Workers’ Compensation Appeal Board (City of Philadelphia), 2016 Pa. Commw. LEXIS 382 (Pa. Commw. Sept. 7, 2016), the claimant was employed a firefighter for the City of Philadelphia. Over the course of his 33-year career, he was exposed to various toxic substances, including diesel fuel emissions, asbestos, smoke and gas, among other inhalants. The claimant was diagnosed with prostate cancer in 2006 and missed three months of work for treatment. He eventually returned to his pre-injury position and continued working until retiring in January of 2008. A claim petition was filed four years later, alleging that his previous prostate cancer arose as a result of exposure to Group I carcinogens that he encountered through his employment as a firefighter for the City. Total disability benefits were requested pursuant to Section 108(r) of the Pennsylvania Workers’ Compensation Act.

In reviewing the evidentiary record, which included medical reports and deposition transcripts from various medical experts, the Workers’ Compensation Judge denied the claim petition, finding that, despite work-related exposure to Group 1 carcinogens, the claimant failed to prove it was a substantial contributing factor to his prostate disease. The Workers’ Compensation Appeal Board agreed. In affirming the judge, the Board reasoned on a different basis, that the presumption of compensability under Section 301(f) only applies to claims made within 300 weeks from the last date of employment. Because the claim petition was filed 318 weeks from the last date of work-place exposure, the Board concluded the claimant could not be afforded the presumption of compensability and had to proceed on a regular inquiry of causation.

On appeal to the Commonwealth Court, the claimant argued the Appeal Board misinterpreted Section 301(f) to require that an occupational disease claim be made within 300 weeks before he could avail himself of the presumption of compensability. This, according to the claimant, is not required for any other occupational disease and, therefore, unduly restricts a firefighter’s ability file a Section 108(r) claim. The court disagreed, clarifying that the issue was not whether the claim petition was timely but whether the claimant can rely upon the statutory presumption of compensability. Both inquiries are specifically set forth in Section 301(f), which mandates that Section 108(r) claims be made “[w]ithin 600 weeks of the last date of employment in…which a claimant [is] exposed to the hazards of the disease.” Thus, in order to be timely, a claim petition for a Section 108(r) disease must be made within 600 weeks, a time frame separate and apart from the time limitation for applying the presumption of compensability. This, as established in Section 301(f), “[s]hall only apply to claims made within the first 300 weeks.” Thus, while timely, the claimant had filed his claim petition outside of the 300-week period, thereby eliminating his ability to rely upon the presumption of compensability.

Ultimately, however, the court noted that the filing date was immaterial. The claimant failed to establish a causal relationship between his prostate cancer and his occupational exposure to a Group 1 carcinogen, and, thus, he could not meet his burden of proving the presumption of compensability. Citing its recent holding in City of Philadelphia Fire Department v. WCAB (Sladek), 144 A.3d 1011 (Pa. Commw. Ct. 2016), the court emphasized the procedural requirements for a prima facie case of compensability, which requires a threshold showing that the claimant’s cancer is caused by work-related exposure to Group 1 carcinogens. If the claimant is successful, he is alleviated from eliminating outside possibilities for the occupational disease, with the inquiry turning to the requirements of Section 301(f). Only then and upon meeting this criteria does the claimant establish a presumption of compensability. Here, because the claimant could not meet his threshold burden of establishing that his work-related exposure was a substantial contributing cause to the development of prostate cancer, the remaining inquiry of presumption of compensability was moot. There was ample evidence to support the specific findings on this issue, and, thus, they could not be disturbed upon appeal. This analysis further rendered unnecessary any discussion about whether the discovery rule applied, as was alternatively argued by the claimant.

The cases of Sladek and Hutz provide much needed guidance on what standards a claimant must meet when navigating a Section 108(r) claim. Specifically, there must be a threshold showing of causation between work-place exposure and claimed occupational disease, a fact-intensive inquiry decided based upon the credibility determinations of a Workers’ Compensation Judge. It is only after this initial burden is met that a claimant may pursue the remaining elements of a prima facie case for compensability, and because these are straight-forward requirements, there is less flexibility for a defense. Thus, these cases seem to suggest that the greatest hurdle for the claimant will be in meeting the threshold burden, and it is recommended that any defense to a Section 108(r) claim be mounted at this time.

*Ashley is an associate in our Philadelphia, Pennsylvania office. She can be reached at 215.575.2653 or astalley@mdwcg.com.

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_{Defense Digest, Vol. 22, No. 4, December 2016. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2016 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}