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Capaldi v. Workers' Compensation Appeal Board (City of Philadelphia)

Commonwealth Court of Pennsylvania

January 9, 2017

Eugene Capaldi, Petitioner
v.
Workers' Compensation Appeal Board (City of Philadelphia), Respondent

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE DAN PELLEGRINI, Senior Judge.

          OPINION

          MARY HANNAH LEAVITT, President Judge.

         Eugene Capaldi (Claimant) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) denying him compensation benefits for a squamous cell carcinoma on his right vocal cord. In doing so, the Board affirmed the decision of the Workers' Compensation Judge (WCJ) and held that Claimant, a retired firefighter, did not prove that his cancer is a type caused by exposure to International Agency for Research on Cancer (IARC) Group 1 carcinogens and, thus, an occupational disease under Section 108(r) of the Workers' Compensation Act (Act).[1] The Board also held that Claimant could not use the statutory presumption in Section 301(f) of the Act[2] that assists a firefighter in proving that his occupational disease is compensable because he filed his claim petition more than 300 weeks after his last day of work as a firefighter. Finally, the Board agreed with the WCJ that Claimant did not prove that his cancer was caused by his employment. We affirm.

         Background

         The City of Philadelphia (Employer) hired Claimant as a firefighter in 1969. Claimant retired in October 2003 after 34 years of service. In May 2005, Claimant was diagnosed with squamous cell carcinoma of the right vocal cord, which was successfully treated with surgery. Seven years later, in December 2012, Claimant filed a claim petition alleging that his cancer was caused by his workplace exposure to carcinogens. Claimant sought payment of his medical bills. Employer filed an answer denying the allegations. At the hearing before the WCJ, both Claimant and Employer presented evidence.

         Claimant testified by deposition. He explained that he had worked at numerous fire stations in Philadelphia where he was exposed to diesel fuel emissions because the fire trucks were routinely kept idling inside the buildings. Also, Claimant testified about the carcinogens in the smoke and burning debris, including asbestos and fuel, to which he was exposed while fighting fires. During his service as a firefighter, Claimant did not always wear a self-contained breathing apparatus (SCBA). After fighting a fire, it was not unusual for him to have soot all over his face, in his nostrils, and on his clothes.

         In May 2005, approximately 18 months after his retirement, Claimant was diagnosed with squamous cell carcinoma of the right vocal cord. Claimant had not been previously diagnosed with any type of cancer, and he did not have a family history of cancer. Claimant, once a smoker, stopped smoking in 1979. Since that time, he has not used any form of tobacco product. Claimant acknowledged that he consumes alcohol moderately, usually wine with dinner four or five times a week.

         Claimant submitted a report from Virginia M. Weaver, M.D., M.P.H., who has studied the occupational diseases of firefighters. Dr. Weaver found that the smoke to which firefighters are exposed contains the following IARC Group 1 carcinogens: arsenic; asbestos; benzene; benzo[a]pyrene; 1, 3-butadiene; formaldehyde; and soot. These carcinogens enter the body through inhalation, skin absorption, and ingestion of contaminated nasopharyngeal secretions. Further, recent studies from the National Institute for Occupational Safety and Health (NIOSH) and National Cancer Institute have shown that diesel exhaust is carcinogenic. Dr. Weaver opined that firefighters are exposed to IARC Group 1 carcinogens in the course of their work, but she did not specify the types of cancer that can be caused by Group 1 carcinogens.

         Claimant also offered the deposition testimony of Barry L. Singer, M.D., a physician, who is board certified in internal medicine, hematology, and medical oncology. Dr. Singer, who has treated cancer patients for more than 40 years, focuses on breast, colon, and lung cancers. Dr. Singer is not an epidemiologist or toxicologist, and he does not specialize in the etiology of cancer.

         Dr. Singer stated that, in 2008, he was contacted by Claimant's counsel to evaluate the cancer history of a number of firefighters to determine whether their cancer was work-related and, thus, compensable under the Act. Dr. Singer estimated that since 2008 he has reviewed 40 to 50 cases on referral from Claimant's counsel.

         With each referral, Claimant's counsel sends Dr. Singer the firefighter's medical history and an affidavit from the firefighter about his job duties, length of service, and family medical history. Claimant's counsel also sends Dr. Singer articles from the medical literature relevant to firefighting and cancer. Dr. Singer evaluates these materials and prepares a report; he does so without doing a physical examination of the firefighter in question. This process was followed in the case of Dr. Singer's report on Claimant's squamous cell carcinoma.

         In his report, Dr. Singer stated that Claimant was exposed to IARC Group 1 carcinogens commonly found in smoke, i.e., arsenic; asbestos; benzene; benzo(a)pyrene; 1, 3-butadiene; formaldehyde; and soot. The report stated that diesel engine exhaust has been labeled by the IARC as a Group 1 carcinogen and that smoke contains IARC Group 2A carcinogens, i.e., polychlorinated biphenyls, polycyclic aromatic hydrocarbons and styrene. The report identified three studies that relate pharyngeal cancer and firefighting:

1. LeMasters, Grace, et al, "Cancer Risk Among Firefighters: A review and Meta-analysis of 32 Studies".
2. Fire Engineering, "A Cohort Mortality Study of Philadelphia Firefighters".
3. Samet, Jonathan, M.D., et al, "An Occupational Health Investigation of Cancer Among Fire Fighters in Anne Arundel County, Maryland".

Reproduced Record at R29 (R.R.___). After reviewing the above studies, Dr. Singer's report opined that Claimant's exposure to Group 1 and Group 2A carcinogens while working for Employer was "a substantial contributing factor in the cause of his laryngeal cancer." Id.

         At his deposition, Dr. Singer testified that he uses a "differential diagnosis" methodology[3] to assess the cause of a firefighter's cancer. Notes of Testimony (N.T.), 12/21/2012, at 46. Practitioners use this methodology to assess the history and symptoms of their patients. Dr. Singer acknowledged the absence of scientific authority for the use of this methodology to determine a causal connection between a given agent and a given cancer.

         Further, Dr. Singer explained that his use of the words "substantial contributing factor" in his reports meant that if that factor did not exist, more likely than not the firefighter would not have developed the disease when he did. N.T., 12/21/2012, at 56. Stated otherwise, the exposure explained the timing of the disease's onset.

         On cross-examination, Dr. Singer acknowledged that he had not considered the methodologies used by public health experts to determine what exposures cause cancer, including studies published by the Environmental Protection Agency, Veteran's Administration, the National Academy of Science and the IARC. Nor did Dr. Singer consider the American Medical Association's Guides to the Evaluation of Disease and Injury Causation, the Federal Court handbook or the Bradford Hill criteria.[4] Dr. Singer did not do his own analysis of studies reported in the literature or do any lab testing.

         In a letter dated March 12, 2014, Dr. Singer addressed the report of Employer's expert, Dr. William M. Keane, M.D., who opined that Claimant's past smoking and alcohol consumption was the probable cause of his cancer and that a causal connection between laryngeal cancer and firefighting has not been established. Relying upon the National Cancer Institute's finding that cessation of smoking for 30 years reduces a cancer risk by 90%, Dr. Singer opined that Claimant's smoking history was not a substantial contributing factor in the cause of his laryngeal cancer since he had quit 28 years before his cancer developed. Further, Claimant did not have a history of heavy alcohol consumption.

         In opposition to Claimant's claim petition, Employer submitted the deposition testimony of Dr. Tee Lamont Guidotti, M.D., M.P.H., who is board certified in internal medicine, pulmonary medicine, occupational medicine, and has a nonmedical diploma in toxicology.[5] Dr. Guidotti is also trained in epidemiology, which he described as the "science of the patterns of diseases in populations." N.T., 1/21/2013, at 11. Dr. Guidotti has undertaken a number of research projects that have been published in peer-reviewed journals. For the past 20 years, Dr. Guidotti has been investigating the relationship between the toxin exposures associated with firefighting and cancer. Dr. Guidotti has testified as an expert on the etiology of various diseases related to occupations, specifically prostate cancer, and on methodology.

         Dr. Guidotti criticized Dr. Singer's reports and deposition testimony in the firefighter cases for a lack of methodology. He explained:

In all of the statements from Dr. Singer that I saw, I could not really discern that any methodology was, in fact, used. They were all essentially identical.
The language was almost rubber-stamped. The conclusions were identical. There was no weighing of evidence or discussion of individual studies. There was no discussion of alternative explanations or potential exposures to rule them out or rule them in in any particular case.
It was like they were Xerox'd and only the names were changed.

N.T., 1/21/2013, at 21-22. According to Dr. Guidotti, the reports offered "no evidence that a methodology was, in fact, followed, let alone described." Id. at 49.

         Dr. Guidotti testified that Dr. Singer's approach to causation did not follow the generally accepted standards of practice in the field, and it did not conform to generally accepted scientific principles. Dr. Guidotti stated:

Q. Doctor, do you have an opinion within a reasonable degree of medical certainty as to whether Dr. Singer selected and appropriately applied generally accepted scientific methodologies for the purpose of offering an opinion on etiology of cancer at a general causation level?
A. Based on the evidence and the opinions that he wrote and in his deposition and everything else I have seen, my opinion is that it does not conform to the usual standard.

N.T., 1/21/2013, at 73. Dr. Guidotti observed that because Dr. Singer never heard of the Bradford Hill criteria, this suggested that he was "not familiar with mainstream epidemiology methodology."[6] Id. at 33. Dr. Guidotti also observed that what knowledge of etiology Dr. Singer has was "probably derived from his experience as an oncologist, which is all treatment-oriented." Id.

         When asked about Dr. Singer's review of the epidemiological literature, Dr. Guidotti responded:

Q. Dr. Singer testified that he can draw some inferences from the number of studies for a proposition and the number of ...

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