BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge,
HONORABLE ANNE E. COVEY, Judge, HONORABLE DAN PELLEGRINI,
HANNAH LEAVITT, President Judge.
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). The Board also held that
Claimant could not use the statutory presumption in Section
301(f) of the Act 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.
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
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.
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.
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.
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.
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.
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.
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
3. Samet, Jonathan, M.D., et al, "An Occupational Health
Investigation of Cancer Among Fire Fighters in Anne Arundel
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.
deposition, Dr. Singer testified that he uses a
"differential diagnosis" methodology 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.
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.
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. Dr. Singer did not do his own analysis
of studies reported in the literature or do any lab testing.
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
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. 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
Guidotti criticized Dr. Singer's reports and deposition
testimony in the firefighter cases for a lack of methodology.
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
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
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." 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."
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