Argued: November 14, 2019
BEFORE: HONORABLE P. KEVIN BROBSON, ELLEN CEISLER, BONNIE
BRIGANCE LEADBETTER, Senior Judge
KEVIN BROBSON, JUDGE
Deloatch (Claimant) petitions for review of an order of the
Workers' Compensation Appeal Board (Board), dated
December 11, 2018. The Board reversed the decision and order
of a Workers' Compensation Judge (WCJ), which granted
Claimant's claim petition for benefits under Sections
108(r) and 301(f) of the Workers' Compensation Act
(Act). The sole issue before this Court is
whether Claimant has established that he developed a
compensable occupational disease in the form of lung cancer
as provided by Sections 108(r) and 301(f) of the Act. For the
reasons that follow, we reverse.
worked as a firefighter for the City of Philadelphia
(Employer) from December 12, 1988, until he retired on
November 1, 2008. (Certified Record (C.R.), Item No. 6 at 3.)
In 2011, Daniel Stermand, M.D., diagnosed Claimant with lung
cancer, for which Claimant later received treatment.
(Reproduced Record (R.R.) at 20-22, 88.)
December 12, 2012, Claimant filed a claim petition alleging
that he suffered from non-small cell lung cancer resulting
from direct exposure to IARCGroup 1 carcinogens while working
as a firefighter with Employer. (C.R., Item No. 2 at 2.)
Claimant sought payment of medical bills related to treatment
of his non-small cell lung cancer. (Id.) Employer,
thereafter, filed an answer denying all allegations in the
claim petition. (C.R., Item No. 4.) In support of his claim
petition, Claimant provided his own deposition testimony, a
medical report from Virginia Weaver, M.D., as well as a
medical report from and deposition testimony of Barry L.
Singer, M.D. In opposition to Claimant's claim petition,
Employer presented the deposition testimony of Tee Guidotti,
M.D., M.P.H., as well as a medical report from Howard
Summary of Evidence Presented
Claimant's Deposition Testimony
testified at a deposition on January 29, 2013. According to
Claimant, he worked for Employer as a firefighter for
approximately twenty years. (R.R. at 6.) Employer gave
Claimant a physical examination prior to hiring him. As a
result of the examination, Employer did not place any
restrictions on Claimant's ability to work.
(Id.) Further, Claimant was never diagnosed with
cancer at any point during his employment. (Id. at
7.) Over the course of his career, Claimant worked at three
different fire stations. None of these stations contained a
diesel fuel emissions capture system. (Id. at 10.)
At the beginning and end of each shift, firefighters were
required to start the fire engine trucks and leave them
running for approximately 15-20 minutes. (Id. at
10-11.) Claimant, therefore, saw and smelled diesel fuel
emissions at each shift during the twenty years of his
employment. (Id. at 10.) The ceilings and walls in
each fire station were covered with soot and grime.
(Id. at 12.)
Claimant's firefighting career, he fought approximately
200-300 fires, including building, house, car, dumpster,
trash, grass, and field fires, which exposed him to smoke.
(Id. at 13, 14-15, 18.) Claimant sometimes wore a
self-contained breathing apparatus (SCBA) when responding to
a fire. (Id. at 16.) SCBAs provide the wearer with
clean air for approximately 20-30 minutes depending on the
individual and the amount of work involved. (Id.)
According to Claimant, Employer did not fit-test the SCBAs.
(Id.) Claimant did not use the SCBA during exterior
firefighting-i.e., outdoor firefighting-or overhaul,
which entailed "ripping of walls, ceilings, searching
for any hidden fire and extinguishing that if it's
visible." (Id. at 15, 17.) After exposure to
each fire incident, Claimant's body would be coated in
soot, and Claimant would often find soot in his nasal
secretions up to a week after exposure. (Id. at 19.)
Claimant further testified that he stopped smoking cigarettes
in 2011, but had a 30 to 35-year-long smoking history.
(Id. at 25.) During that period, Claimant recalled
smoking only one pack of cigarettes per week. (Id.)
Firefighters were permitted to smoke in the fire stations,
and Claimant worked with smokers during his career as a
firefighter. (Id. at 26.)
Medical Report from Virginia Weaver, M.D.
submitted a medical report from Dr. Weaver, who is board
certified in internal medicine and occupational medicine.
(Id. at 186.) Dr. Weaver opined that firefighters
are exposed to IARC Group 1 carcinogens in the course of
their work, many of which are found in smoke from burning
structures, including buildings and automobiles.
(Id. at 179.) She further stated that although
firefighters use protective equipment, the protection is
incomplete because firefighters routinely observe black soot
on their skin and in nasal discharges after major fires.
(Id.) Further, until recently, most firefighters
routinely removed their respiratory protection during the
overhaul process. (Id.) Dr. Weaver did not provide
any specific testimony relating to the causal relationship
between a firefighter's exposure to certain IARC Group 1
carcinogens and the development of lung cancer.
Deposition Testimony of Barry L. Singer, M.D.
submitted the deposition testimony of Dr. Singer, who is
board certified in internal medicine, hematology, and
oncology. (Id. at 92.) Dr. Singer is not a
specialist in occupational medicine, toxicology, or
epidemiology. (Id. at 251-54.) Dr. Singer's
practice is mainly patient care, and he does not engage in
primary research nor has he ever published any materials on
the etiology of cancer. (Id. at 256.) Since 2008,
Dr. Singer has been reviewing cases involving workers'
compensation claims for cancer. (Id. at 249.) In
evaluating cases involving firefighters, Dr. Singer reviews
affidavits concerning each firefighter's exposures and
medical and family history. (Id. at 249-50.) Dr.
Singer has not performed physical evaluations on any of the
firefighters for whom he was asked to provide medical
opinions; however, by reviewing the IARC monographs, academic
materials concerning firefighters' exposure to
carcinogens, medical records, and family history, Dr. Singer
has been able to provide opinions about the cause of each
firefighter's cancer. (Id. at 250.) Dr.
Singer's methodology for forming his opinion in these
cases is called "differential diagnosis," which
requires that Dr. Singer list all causal possibilities for a
patient's diagnosis, rule out certain possibilities, and
eventually arrive at a final or most probable diagnosis.
(Id. at 283.) Differential diagnosis, Dr. Singer
opined, is the only viable method for evaluating firefighter
cancer cases. (Id. at 283-84.) According to Dr.
Singer, firefighters are exposed to numerous iarc group 1
carcinogens, such as arsenic, which is found in diesel
exhaust and smoke. (Id. at 285.)
Singer admitted that there are carcinogens in cigarette smoke
that most likely cause changes in lung tissue, resulting in
formation of cancerous cells. (Id. at 310.) In fact,
Dr. Singer agreed that approximately sixty of the one hundred
and twenty carcinogens present in IARC's Group 1
carcinogen list are found in cigarette smoke. (Id.
at 368.) Dr. Singer also agreed that an individual who smokes
eighty packs of cigarettes per year has a 400-fold increase
in the risk of lung cancer, as well as cancer affecting the
head and neck. (Id. at 310.) With respect to
firefighters' exposure to carcinogens during employment,
Dr. Singer agreed with the IARC's conclusion that (1)
less than half of all responses to fires are, in fact,
fire-related; (2) of those responses that are fire-related,
less than half involve observable flames; and (3) a very
small percentage of firefighters' time-i.e., one
to two percent-is spent fighting fires. (Id. at
366-67.) Dr. Singer also agreed that SCBAs are designed to
reduce exposure to particles by one thousand percent.
(Id. at 368.)
Medical Report from Barry L. Singer, M.D.
also submitted a medical report from Dr. Singer. In that
report, Dr. Singer opined that firefighters are routinely
exposed to "many known or suspected lung
carcinogens." (Id. at 89.) Dr. Singer discussed
studies that found an increased risk for lung cancer in the
firefighting profession. (Id.) Thereafter, Dr.
Singer concluded that, based on Claimant's medical
records, Claimant's exposure to carcinogens while working
for Employer was a "substantial contributing factor in
the development of his lung cancer." (Id.)
Deposition Testimony of Tee Guidotti, M.D., M.P.H.
opposition, Employer submitted the deposition testimony of
Dr. Guidotti, who is board certified in internal medicine,
pulmonary medicine, and occupational medicine. (Id.
at 1109.) Dr. Guidotti also has a non-medical diploma in
toxicology, is trained in epidemiology, and has investigated
the potential relationships between occupational and
environmental exposures associated with firefighting and
cancer. (Id. at 917-18, 922-23.) Dr. Guidotti
reviewed a subset of Dr. Singer's reports involving
firefighters and some of his deposition testimony in
firefighter cancer cases in order to determine the
appropriateness of Dr. Singer's methodology and the
validity of his opinions. (Id. at 927-28.) With
respect to specific firefighters, their diagnoses, or cancer
exposure, Dr. Guidotti offered no opinion. (Id. at
Dr. Singer's methodology, Dr. Guidotti opined that he
could not discern what, if any, methodology Dr. Singer used
to form his opinions. (Id. at 929.) In response to a
question on whether Dr. Singer's method of drawing
inferences from the volume of support for, as opposed to
against, a proposition was an appropriate method for
determining the sufficiency of epidemiological studies, Dr.
Guidotti answered in the negative. (Id. at 933.) Dr.
Guidotti also opined that Dr. Singer had no expertise on how
general causation is proved. (Id.) Further, where
Dr. Singer's use of meta-analyses is concerned, Dr.
Guidotti opined that one should not rely on meta-analyses to
reach a conclusion on cause and effect because meta-analyses
do not summarize all the studies addressed in any meaningful
sense nor do they address the nuance or bias of any given
study. (Id. at 937-38.) Dr. Guidotti agreed that the
IARC is the authoritative world body in recognizing
carcinogens and that the IARC has ...