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City of Warren v. Workers' Compensation Appeal Board (Thomas Haines, Deceased, By Sharon Haines, Claimant)

Commonwealth Court of Pennsylvania

March 9, 2017

City of Warren, Petitioner
v.
Workers' Compensation Appeal Board (Thomas Haines, Deceased, by Sharon Haines, Claimant), Respondent

          Argued: December 14, 2016

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE JULIA K. HEARTHWAY, Judge

          OPINION

          MARY HANNAH LEAVITT, President Judge

         The City of Warren (Employer) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) granting the fatal claim petition of Sharon Haines (Claimant), widow of Thomas Haines (Decedent), who died of colon cancer six years after he retired from the Warren Fire Department. The Board concluded that Decedent's colon cancer was an occupational disease under the Workers' Compensation Act (Act), [1] and, thus, compensable. Employer contends that the Board's conclusion was erroneous. First, Employer contends that Decedent's claim for compensation had extinguished under the applicable statute of repose, and the legislature's subsequent enactment of a different statute of repose, specific to firefighters who develop cancer, did not revive Decedent's extinguished claim. Second, Employer contends that Claimant did not prove that Decedent's cancer was work-related because her medical evidence did not satisfy the Frye[2] standard for expert evidence.

         Background

         On January 17, 2012, Claimant filed a fatal claim petition seeking workers' compensation benefits as the dependent wife of Decedent. In addition, the Estate of Decedent filed a claim petition for the payment of medical bills incurred for the treatment of Decedent's colon cancer. Decedent worked for Employer as a firefighter from January of 1970 until his retirement on February 2, 2003. He died on August 18, 2009, approximately 341 weeks after his retirement.

         While working at the department, Decedent fought fires in houses and in industrial facilities, such as refineries. When responding to the different fires, Decedent was exposed to smoke, soot, and other carcinogens, including asbestos. At the firehouse, Decedent was exposed to diesel fumes and cigarette smoke. Decedent smoked moderately for several years, and he drank alcoholic beverages on social occasions.

         In support of the claim petitions, Claimant introduced the deposition testimony of Barry L. Singer, M.D., who is board certified in internal medicine, hematology, and medical oncology. In a letter dated January 10, 2012, Dr. Singer opined that the direct cause of Decedent's death was his "incurable Stage IV colon cancer, " which was diagnosed in August 2008. Reproduced Record at 209a-211a (R.R. ___). In August of 2009, Decedent died of respiratory failure, sepsis, and pneumonia, secondary to his cancer. Decedent's work as a firefighter exposed him to carcinogens, including asbestos, described by Dr. Singer as "a known cause of adenocarcinoma of the bowel." R.R. 211a. Dr. Singer opined that Decedent's "30-some-year career in the fire department" was a substantial contributing factor in his development of colon cancer and, ultimately, his death. Notes of Testimony (N.T.), 9/28/2012, at 34; R.R. 133a.

         In opposition, Employer presented the deposition testimony of Tee Guidotti, M.D., M.P.H., who is board certified in internal medicine, pulmonary medicine, and occupational medicine; he is trained in toxicology and epidemiology.[3] For 20 years, Dr. Guidotti has been investigating the relationship between cancer and the exposure to toxins sustained by those engaged in firefighting; he has testified as an expert on occupational disease and methodology on numerous occasions.

         Dr. Guidotti criticized Dr. Singer's report, from which he "could not really discern that any methodology was, in fact, used." N.T., 1/21/2013, at 22; R.R. 1019a.[4] Dr. Guidotti explained that Dr. Singer's work did "not meet the standards generally accepted in the scientific or medical communities for evaluating general causation in an occupational case." R.R. 1253a.

         Employer also offered the report and deposition testimony of Julia Greer, M.D., a professor at the University of Pittsburgh School of Medicine, who specializes in gastroenterology. Dr. Greer opined that "demographic, behavioral, and lifestyle factors, including [Decedent's] advanced age, obesity, alcohol consumption, cigarette smoking, and intake of high heat-cooked red meat, were the causal factors in [Decedent's] development of colon adenocarcinoma." R.R. 1436a. Dr. Greer also stated that there is "no statistically significant, consistent evidence implicating [petrochemicals] in the etiology of colon cancer and no studies have demonstrated an increased risk of colon cancer among fire fighters as a consequence of such exposures." R.R. 1444a. This is true even for firefighters with 30 or more years of employment as firefighters. Dr. Greer opined that Decedent's "personal risk factors were of … a greater magnitude than his exposures to carcinogens [in] firefighting…." N.T., 1/7/2013, at 37; R.R. 1324a.

         The WCJ found that Decedent died from colon cancer "due to his exposure to [International Agency for Research on Cancer (IARC)] Group I carcinogens, including benzene and asbestos, in the form of fire smoke, diesel fuel emissions and soot, in his job as a firefighter for the [City]" and granted Claimant's fatal claim petition. WCJ Decision, 1/23/2014, at 15; Finding of Fact No. 25; R.R. 33a. However, the WCJ denied the Estate's claim petition for medical benefits. The WCJ denied Employer's Frye motion to have Dr. Singer's expert evidence ruled inadmissible; the WCJ found that Dr. Singer was highly qualified to offer an expert opinion.[5]

         Employer appealed to the Board, asserting that the fatal claim petition was time-barred and that, in any case, causation was not proved. The Board affirmed the WCJ.

         The Board rejected Employer's contention that Claimant's fatal claim petition was time barred. Decedent's last exposure to carcinogens in the workplace was on or about December 25, 2002, and he died of cancer on August 18, 2009. In 2011, the legislature enacted Act 46, [6] which amended the Act by adding Sections 108(r) and 301(f). 77 P.S. §§27.1(r), 414. Prior to Act 46, a firefighter could submit an occupational disease claim for cancer under Section 108(l) of the Act (cancers resulting from exposure to asbestos) and under Section 108(n) of the Act (the "catch-all" provision). 77 P.S. §§27.1(l), 27.1(n). A firefighter could proceed under these provisions by showing that his cancer was causally related to firefighting and that the incidence of that cancer is higher in firefighters than in the general population. The Board concluded that the Act 46 amendments merely clarified existing law. The Board acknowledged that its holding meant that employers will be made liable for claims that they believed to have extinguished under prior law. Nevertheless, the Board did not believe that its interpretation of Act 46 imposed an impermissible retroactive application of a new law because Act 46 effected a procedural, not a substantive, change in law.

         The Board also rejected Employer's argument that Dr. Singer's causation opinion was not competent under the "Frye test" set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and Grady v. Frito-Lay, Inc., 839 A.2d 1038 (Pa. 2003). The Board held that the Frye standard applies in workers' compensation proceedings and, further, that Dr. Singer's expert opinion satisfied the Frye standard. The Board noted that Dr. Singer conducted 100 hours of research and relied upon scientific and medical studies to opine on the link between firefighting and colon cancer. Likewise, the Board found Dr. Singer's differential diagnosis methodology to be an acceptable methodology on which to base his causation opinion. The Board dismissed Employer's Frye standard argument as no more than an attempt to invade the WCJ's fact finding responsibility.

         On appeal, Employer presents two issues. First, Employer argues the Board erred in applying Act 46 retroactively to resurrect a claim that had extinguished under the law governing at the time of Decedent's injury and death. Second, Employer argues that although the Board correctly ruled that Frye applied to workers' compensation cases, it erred in its application of the Frye test to the facts of this case.

         Analysis

         We begin with a review of the statutory provisions relevant to occupational disease. Section 301(c)(2) of the Act states that a compensable "injury" includes "occupational disease as defined in section 108 of this act." 77 P.S. §411(2). In turn, Section 108 of the Act lists a number of occupational diseases, including radium poisoning, asbestosis, tuberculosis, and silicosis. 77 P.S. §27.1. The Act imposes a time limit upon a claimant's ability to present an occupational disease claim. Section 301(c)(2) states:

[W]henever occupational disease is the basis for compensation, for disability or death under this act, it shall apply only to disability or death resulting from such disease and occurring within three hundred weeks after the last date of employment in an occupation or industry to which he was exposed to hazards of such disease: And provided further, That if the employe's compensable disability has occurred within such period, his subsequent death as a result of the disease shall likewise be compensable.

77 P.S. §411(2) (emphasis added). Stated otherwise, the employee's disability or death must occur within 300 weeks of his last date of employment for the occupational disease to be compensable.

         In 2011, the General Assembly enacted Act 46, which, inter alia, added cancer to the list of occupational diseases for firefighters, but not for other workers. This addition is found in Section 108(r), and it states:

Cancer suffered by a firefighter which is caused by exposure to a known carcinogen which is recognized as a Group 1 carcinogen by the International Agency for Research on Cancer.

77 P.S. §27.1(r). Recently, this Court held that Section 108(r) requires the firefighter to show that the Group 1 carcinogens to which he was exposed have been shown to cause the type of cancer for which the claimant has been diagnosed. Sladek, 144 A.3d at 1021-22.[7]Sladek clarified that only after a firefighter establishes that his cancer is an occupational disease under Section 108(r) ...


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