Occupational Diseases and Pennsylvania Workers’ Compensation
A recent Pennsylvania Commonwealth Court case has found that a deceased firefighter was not eligible for Pennsylvania Workers’ Compensation benefits after the firefighter died from gastric cancer. In City of Williamsport v. Workers’ Compensation Appeal Board the Fatal Claim Petition, filed by the Decedent’s wife, alleged that Decedent’s death from gastric cancer in October 2011 was causally related to his employment with as a firefighter from 1980 until the time of his death. Claimant based the fatal claim petition on two occupational disease provisions of the Pennsylvania Workers’ Compensation Act: Section 108(o), relating to diseases of the heart and lungs caused by over-exertion or exposure to heat, smoke, fumes or gases arising out of the duty of a firefighter, and Section 108(r).
In proceedings before the Workers’ Compensation Judge (WCJ), the wife testified that during the period they were together, she saw Decedent approximately 15 times after a fire when he had not had the opportunity to shower at work following his shift and on those occasions he smelled “smoky” and appeared “[l]ike someone who came out of ashes.” Claimant stated that Decedent had been suffering from stomach discomfort for approximately three years when in June 2011 he developed deep vein thrombosis in his lower left leg and then stomach hemorrhaging that ultimately led to his hospitalization and cancer diagnosis in July 2011.
The Claimant presented the testimony of an expert witness, who opined that Decedent had exposure to a variety of carcinogens during his career as a firefighter, including asbestos, and that his work as a firefighter and these exposures were a substantial contributing factor to his death from gastric cancer. He testified that it was his belief that Decedent was exposed to asbestos because asbestos was a common building material until the 1980s which can become friable or fragile during fires or building collapse and firefighters who have fought fires for any considerable amount of time are generally exposed to asbestos.
The WCJ granted the Claimant’s Fatal Claim Petition, however, the Commonwealth Court reversed and denied Workers’ Compensation Benefits. The Court recognized that Sections 108(r) and 301(f), created a new occupational disease provision to provide a new presumption of compensable disability for firefighters who suffer from cancer. Section 108(r) recognizes the occupational disease of “[c]ancer 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). Section 301(f) provides, in relevant part, that:
Compensation pursuant to cancer suffered by a firefighter shall only be to those firefighters who have served four or more years in continuous firefighting duties, who can establish direct exposure to a carcinogen referred to in section 108(r) relating to cancer by a firefighter and have successfully passed a physical examination prior to asserting a claim under this subsection or prior to engaging in firefighting duties and the examination failed to reveal any evidence of the condition of cancer.
The Employer argued that that Claimant did not present evidence sufficient to satisfy the first requirement of Section 301(f) in particular that the Decedent had “direct exposure” to a carcinogen recognized as Group 1 by the IARC. The Commonwealth Court agreed and found that there was no competent evidence that Decedent had any direct exposure to a known Group 1 carcinogen as required by Section 301(f) of the Act. The sole evidence before the WCJ regarding Decedent’s fire department exposure was wife’s testimony that Decedent came home from fires on more than 15 occasions smelling of smoke and with an ashy appearance. The Court found that such testimony would be sufficient to show that Decedent was exposed to smoke and ash while working for Employer, but it was insufficient to show exposure to asbestos or any other specific Group 1 carcinogens within the smoke. Claimant did not admit into evidence any Employer fire department logs, incident reports or building inspection records relating to fires Decedent fought. Nor did Claimant attempt to introduce the testimony of any fire department personnel or any other individuals familiar with the construction of buildings in Williamsport upon which the WCJ could presume carcinogens in the fires extinguished by Decedent.
If you or a relative has been subjected to direct exposure to a carcinogen or hazardous substance and are suffering from a medical condition as a result, you may have a workers compensation claim and you should speak to an experienced Central Pennsylvania workers’ compensation lawyer as soon as possible.
