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Deloatch v. Workers' Compensation Appeal Board

Commonwealth Court of Pennsylvania

January 3, 2020

Wayne Deloatch, Petitioner
v.
Workers' Compensation Appeal Board (City of Philadelphia), Respondent

          Argued: November 14, 2019

          BEFORE: HONORABLE P. KEVIN BROBSON, ELLEN CEISLER, BONNIE BRIGANCE LEADBETTER, Senior Judge

          OPINION

          P. KEVIN BROBSON, JUDGE

         Wayne 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).[1] 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.

         I. BACKGROUND

         Claimant 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.)[2]

         On December 12, 2012, Claimant filed a claim petition alleging that he suffered from non-small cell lung cancer resulting from direct exposure to IARC[3]Group 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 Sandler, M.D.

         A. Summary of Evidence Presented

         1. Claimant's Deposition Testimony

         Claimant 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.)

         During 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.)

         2. Medical Report from Virginia Weaver, M.D.

         Claimant 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.

         3. Deposition Testimony of Barry L. Singer, M.D.

         Claimant 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.)

         Dr. 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.)

         4. Medical Report from Barry L. Singer, M.D.

         Claimant 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.)

         5. Deposition Testimony of Tee Guidotti, M.D., M.P.H.

         In 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 1055-56.)

         Concerning 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 ...


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