As Published in the December, 2018 Issue of the PELRAS Newsletter
Published on: Sat 1st Dec, 2018 By: Shon K. Worner
On October 17, 2018 the Pennsylvania Supreme Court in City of Philadelphia Fire Department v. Workers’ Compensation Appeal Board (Sladek) determined that a firefighter who develops cancer must only demonstrate that it is possible that a known carcinogen caused the type of cancer with which the firefighter is afflicted in order to create a presumption of coverage under the Workers’ Compensation Act (hereafter “the Act”). See City of Phila. Fire Dept. vs. W.C.A.B. (Sladek), No. 13 EAP 2017, 2018 WL 5046516 (Pa. October 17, 2018).
In this case, the City of Philadelphia had hired Sladek as a firefighter in 1994. Prior to his service, Sladek had not been treated for cancer and had passed a physical examination confirming that he was cancer-free and in good health. In 2007, however, he was diagnosed with malignant melanoma and underwent treatment to remove a cancerous lesion. Sladek filed a claim for workers’ compensation benefits in 2012, alleging that he had developed melanoma from “direct exposure to Group 1 carcinogens while working as a firefighter.” The City denied that Sladek was entitled to compensation and a hearing was held before a workers’ compensation judge. While Sladek introduced two expert reports, one of which concluded that firefighters are exposed to Group 1 carcinogens in the course of their work, neither report was able to causally link any particular Group 1 carcinogens to malignant melanoma, which was the type of cancer from which he had suffered. Rather, Sladek’s second expert opinion merely concluded that Sladek has been exposed to carcinogens while working as a firefighter and that such exposure was a significant contributing factor to his diagnosis. The City offered an expert opinion which attacked the methodology provided by Sladek’s expert, indicating that it was neither appropriate nor accepted methodology to determine, in the manner that he had, that a link existed between Sladek’s exposure to carcinogens and his malignant melanoma diagnosis.
The Commonwealth Court, en banc, overturned the Workers’ Compensation Appeal Board decision in Sladek’s favor and found that Sladek failed to meet his initial burden to show that his malignant melanoma is a type of cancer caused by the Group 1 carcinogens to which he was exposed as a firefighter. The Pennsylvania Supreme Court, however, overturned the Commonwealth Court. In so ruling, the Supreme Court interpreted 2011 amendments to the Act which specifically address firefighters claiming benefits for cancer alleged to have been caused as a result of performing their duties. Finding that the amendments to the Act embody a legislative acknowledgement that firefighting is a dangerous occupation that routinely exposes firefighters to known carcinogens, the Supreme Court determined that the Act does not require a firefighter to prove that a known carcinogen actually caused their cancer. In keeping with this finding, the Supreme Court acknowledged that the burden imposed on a firefighter for Workers’ Compensation benefits due to a cancer diagnosis under the amended Act is “not a heavy burden.” City of Phila. Fire Dept. at *8.
This case presents a “win” for firefighters who develop a cancer diagnosis and their dependents. The effect of this decision will result in more firefighters being covered under the Act when diagnosed with cancer. Accordingly, municipalities should be prepared for an increase in Workers’ Compensation insurance rates as a result of this decision.
Employers should also be aware that this ruling does not mean that there is no recourse when faced with a Workers’ Compensation claim by a firefighter based on a cancer diagnosis. Once a firefighter has established the relationship between their cancer diagnosis and known carcinogens, the burden then shifts to the employer to produce a medical opinion which shows that the firefighter’s cancer was not caused by firefighting. The Court has made it clear that an employer may not rebut the presumption with generalized evidence; rather, an employer must provide a medical opinion which supports the position that there is a specific cause for the firefighter’s cancer that is not related to his/her occupation as a firefighter.