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Steele v. Workers Compensation Appeal Board (Findlay Township)

Commonwealth Court of Pennsylvania

March 8, 2017

Cheryl Steele and Roy Steele (deceased), Petitioner
v.
Workers' Compensation Appeal Board (Findlay Township), Respondent

          Submitted: November 10, 2016

          BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge.

          OPINION

          RENÉE COHN JUBELIRER, Judge.

         Cheryl Steele (Claimant) petitions for review of an Order of the Workers' Compensation Appeal Board (Board) that reversed the decision and order of a Workers' Compensation Judge (WCJ). The Board concluded the WCJ erred in granting Claimant's Fatal Claim Petition (Claim Petition) because she failed to introduce Pennsylvania Fire Information Reporting System (PennFIRS) reports to establish that her late husband, Roy Steele (Decedent), was directly exposed to carcinogens while serving as a firefighter with Imperial Volunteer Fire Department, as required under the Workers' Compensation Act (Act).[1] On appeal, Claimant argues the WCJ correctly relied upon the testimony of lay witnesses to establish evidence of direct exposure. Further, Claimant argues that other sections of the Act provide a basis to grant the Claim Petition. We agree that the WCJ erred in granting the Claim Petition without PennFIRS reports, which are required of volunteer firefighters by the plain language of the Act. However, because neither the WCJ nor the Board considered whether Claimant was entitled to benefits under alternative sections of the Act, we remand for further proceedings.

         Decedent joined the volunteer fire department in 1968. (WCJ Decision, Findings of Fact (FOF) ¶ 1.) Over the course of his career, he served as a lieutenant, assistant captain, captain, assistant chief, and chief. (Id.) Decedent held the position of fire chief for 20 years before stepping down in 2004 due to high blood pressure. (FOF ¶¶ 1-2.) Although he no longer served as chief, Decedent continued to respond to fires and served as captain up until the year before he died. (Id. ¶ 1.) In October 2009, he was diagnosed with stage 4 lung cancer. (Id.) Decedent died on August 5, 2011. (Id.)

         On June 8, 2012, Claimant filed a lifetime claim petition on Decedent's behalf, alleging his cancer was caused by exposure to carcinogens recognized as Group 1 carcinogens by the International Agency for Research on Cancer (IARC), and therefore Decedent was entitled to total disability benefits under Section 108(r) of the Act.[2] (Lifetime Claim Petition, C.R. Item 1.) She filed the Fatal Claim Petition three days later. (Claim Petition, C.R. Item 2.)

         At various hearings, in addition to Claimant, two fellow firefighters testified about Decedent's service. The first fellow firefighter served with Decedent for seven years, during which time he observed Decedent fighting fires and going into structures during overhaul.[3] (FOF ¶ 3.) During this time, Decedent would have been exposed to smoke. (Id.) Although Decedent was chief and his primary responsibility was directing manpower, the first firefighter said there is still smoke outside of the structure. (Id.) In addition, the firefighter explained that Decedent would have been exposed to diesel fumes from the fire trucks at the station. (Id.) His testimony was corroborated by the testimony of the second fellow firefighter, who served with Decedent for five years, during which time Decedent was captain. (FOF ¶ 4.)

         The current fire chief testified that of the approximately 150 calls per year, only six to eight are actual fires. (FOF ¶ 5.) He testified that Decedent managed a fire scene as a "fire ground chief, " meaning he managed from his vehicle to avoid smoke and better visualize the fire ground. (Id.) The current fire chief never saw Decedent attack a fire from inside a building or physically fight a fire; however, he acknowledges Decedent would have entered structures during overhaul. (Id.) The current fire chief also disputed that a fire truck would idle for long periods of time inside the station. (Id.) Notably, no PennFIRS reports were introduced by either party.[4] Both parties also introduced expert testimony in support of their respective positions. (FOF ¶¶ 6-7.)

         The WCJ subsequently issued a decision and order on September 16, 2014, dismissing the lifetime claim petition, [5] but granting the Fatal Claim Petition. (WCJ Decision, Conclusions of Law (COL) ¶¶ 1-2.) The WCJ concluded that the lay testimony of Claimant and two fellow firefighters was sufficient to establish that Decedent was directly exposed to Group 1 carcinogens, and PennFIRS reports were not necessary as they were within the control of the Employer Findlay Township (Employer). (FOF ¶ 20.) The WCJ further concluded that Employer successfully rebutted the presumption under Section 108(r) of the Act, [6] but Claimant met her burden of demonstrating a work-related injury caused or contributed to Decedent's disability through the credible testimony of lay and expert witnesses. (FOF ¶ 19.)

         Employer filed a timely appeal to the Board, challenging the WCJ Decision on two grounds. First, Employer argues the WCJ erred in awarding benefits in the absence of PennFIRS reports. Second, Employer contended the WCJ erred in rejecting its competency challenge to Claimant's expert. Upon review, the Board concluded the WCJ erred in accepting lay witness testimony instead of requiring the statutorily mandated PennFIRS reports.[7] (Board Op. at 12-14.) The Board reasoned that, under the terms of the Act, volunteer firefighters had to comply with special requirements to establish direct exposure to Group 1 carcinogens; namely, volunteer firefighters had to introduce PennFIRS reports as evidence of direct exposure to carcinogens. (Id. at 12.) Although Claimant herself testified about Decedent's exposure, along with two fellow firefighters, (id. at 3-4), the Board concluded that such lay witness testimony was insufficient under the terms of the Act. (Id. at 11-12.) In its thoughtful and thorough Opinion, the Board examined the legislative history of the amendments to the Act, which added the provisions in question, and stated "the Legislature clearly intended career and volunteer firefighters to be treated differently and therefore delineated the objective proofs necessary for a volunteer firefighter to maintain a Section 108(r) claim." (Id. at 12.) It concluded that lay testimony concerning Decedent's participation in fire calls was "not tantamount to 'evidence of direct exposure to a carcinogen referred to in [S]ection 108(r) as documented by reports filed pursuant to . . . [PennFIRS], '" which is required by the plain language of the Act. (Id. at 13-14.)

         Following the Board's reversal of the WCJ Decision, Claimant appealed to this Court.[8] She asserts on appeal that the Board erred in finding her ineligible for benefits because of the lack of PennFIRS reports, and even if the reports are necessary, she still would have been entitled to benefits under other sections of the Act.[9] Employer responds by arguing that the plain language of the Act requires PennFIRS reports for volunteer firefighters and that Claimant failed to plead, and therefore waived, the ability to recover under different provisions of the Act. We will address these issues in turn.

         An occupational disease is defined in Section 108 as a compensable injury under the Act. Section 301(c)(2), 77 P.S. § 411(2). The definition of "occupational disease" was amended by Act 46 of 2011[10] to add Section 108(r), which specifically includes "[c]ancer suffered by a firefighter which is caused by exposure to a known carcinogen which is recognized as a Group 1 carcinogen by the [IARC]" as an occupational disease. 77 P.S. § 27.1. As stated above, Section 301(e) provides a presumption that an occupational disease arose out of and in the course of a claimant's employment. 77 P.S. § 413. In short, "where a claimant has an occupational disease listed in Section 108 of the Act, the claimant need not prove this occupational disease was caused by workplace exposure, as opposed to another exposure"; instead it is the employer's burden to show otherwise. City of Phila. Fire Dep't v. Workers' Comp. Appeal Bd. (Sladek), 144 A.3d 1011, 1020 (Pa. Cmwlth. 2016), petition for allowance of appeal granted (Pa. No. 13 EAP 2017, filed March 1, 2017).

         However, as we stated in Sladek, Act 46 also added Section 301(f), which imposed an additional condition on the presumption where the occupational disease is cancer suffered by a firefighter. Id. Section 301(f) provides that a firefighter is entitled to benefits under Section 108(r), provided he can show: (1) employment for four or more years in continuous firefighting duties; (2) direct exposure to an IARC Group 1 carcinogen; and (3) that he passed a physical examination prior to engaging in firefighting duties that did not reveal any evidence of cancer. 77 P.S. § 414. Important for purposes of this appeal, Section 301(f) further provides:

Any claim made by a member of a volunteer fire company shall be based on evidence of direct exposure to a carcinogen referred to in section 108(r) as documented by reports filed pursuant to [PennFIRS] and provided that the member's claim is based on ...

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