Bristol Borough v. WCAB (Burnett); 464 C.D. 2018; filed Mar. 22, 2019; Judge Simpson

Proving entitlement to benefits for cancer and meeting reporting requirements of § 301(f).

In reviewing the evidence, the workers’ compensation judge found that: (1) the claimant established being engaged in firefighting activities for more than four years; (2) prior to his cancer diagnosis, he did not show any signs of cancer; (3) he was exposed to Group 1 carcinogens; and (4) he first learned of the relationship between the exposures and his cancer when he reviewed his expert’s report in September of 2015. The judge also accepted the Pennsylvania Fire Commissioner’s testimony regarding the purpose of the PennFIRS reporting requirements under Act 46 and that exposures to carcinogens at fire scenes are not monitored as part of PennFIRS. Finally, the judge accepted the opinion of the claimant’s medical expert as more credible than the opinion of the employer’s medical expert.

The Appeal Board dismissed the employer’s appeal. On appeal to the Commonwealth Court, the employer argued that § 301(f) of the Act requires a volunteer firefighter to use PennFIRS reports to prove exposure to a known Group 1 carcinogen and that the workers’ compensation judge erred in allowing testimony from the Pennsylvania Fire Commissioner concerning the § 301(f) requirements for the forms of proof for volunteer firefighter claims. The employer also argued that the Appeal Board failed to require proof that the claimant’s specific cancer was directly related to exposures as a firefighter. The Commonwealth Court affirmed the decision below and dismissed the employer’s appeal.

In doing so, the court noted the Supreme Court’s decision in City of Philadelphia Fire Department v. WCAB (Sladek), 144 A.3d 1011 (Pa. Cmwlth. 2018), rev’d, 195 A.3d 197 (Pa. 2018) wherein it was held that under § 108(r) of the Act, the claimant is only required to establish a general causal link between the type of cancer and a Group 1 carcinogen and is not required to prove that the identified Group 1 carcinogen actually caused the claimant’s cancer.

According to the court, the employer’s argument that § 301(f) requires a volunteer firefighter to only use PennFIRS documentation to establish direct exposure to a Group I carcinogen by documenting his presence at an incident and the carcinogen encountered at the incident was an overly restrictive interpretation of the provision, which would lead to an unreasonable and impossible to execute result. The PennFIRS’s reporting requirement under § 301(f) is to document a volunteer firefighter’s presence at a type of fire, and the court held that the claimant satisfied these reporting requirements. They also held that there was no abuse of discretion by the workers’ compensation judge in determining that the Fire Commissioner’s testimony was competent evidence of the limited purpose of the PennFIRS’s reporting requirements. The court also held that the opinion of the claimant’s medical expert on causation satisfied the general causation requirement in § 108(r) of the Act. The court further rejected the employer’s argument that they produced rebuttal evidence sufficient to overcome the presumption of compensability in § 301(f) on the basis that the workers’ compensation judge rejected that rebuttal evidence as not credible. 


Case Law Alerts, 3rd Quarter, July 2019

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