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
HANNAH LEAVITT, President Judge
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),  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 standard for
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.
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.
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.
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. 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.
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. 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."
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.
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
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.
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,  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.
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
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.
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
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.
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
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.Sladek clarified
that only after a firefighter establishes that his cancer is
an occupational disease under Section 108(r) ...