Pennsylvania Workers’ Compensation Act; Manifestation Rule
City of Johnstown v. WCAB (Sevanick), 2020 WL 6883240 (Pa. Cmwlth.)(unreported), allocatur granted Nov. 17, 2020, appeal docket 28 WAP 2020
The Pennsylvania Supreme Court granted review to consider whether a claimant seeking benefits for an occupational disease under Section 108 of the Pennsylvania Workers’ Compensation Act has to satisfy the manifestation rule found at Section 301(c)(2).
Retired firefighter Michael Sevanick filed a petition seeking workers’ compensation benefits for kidney cancer alleged to have been caused by his exposure to IARC Group 1 carcinogens during his 20-plus year employment as a firefighter. Pursuant to Section 108(r) of the Workers’ Compensation Act (Act), as amended in July 2011 in Act 46, “[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,” is a compensable occupational disease under the Act. Following hearing, the Workers’ Compensation Judge (WCJ) concluded that Sevanick “underwent pre-diagnosis physical examinations which did not show cancer prior to March 2015” and “had more than four years of continuous fire service with direct exposure to IARC Group 1 carcinogens and that his exposure to IARC Group 1 carcinogens was a substantial contributing factor in the development of his kidney cancer.” Slip op. at 6. On appeal to the Board, the City argued that Section 301(c)(2)’s requirement that a claim be filed within 300 weeks of the last date of work with exposure to a known Group 1 carcinogen extinguished Sevanick’s claim that was brought over 300 weeks since Sevanick last worked. In affirming the WCJ, the Board determined that the 300-week provision did not govern, but rather the 600-week deadline under Act 46 applied. The Board observed that, although Sevanick’s last date of work, exposure, and retirement occurred prior to July 2011 (the effective date of Act 46), the credible evidence established Sevanick was not diagnosed with, treated for, or disabled by his cancer until 2015. The Board opined that where, as here, Claimant’s disease occurred after the effective date of Act 46, he had 600 weeks to bring his claim as provided in Section 301(f) of the Act. The City appealed, arguing that Sevanick failed to prove he was exposed to an IARC Group 1 carcinogen that could have possibly caused his kidney cancer within 600 weeks of the date he made his claim; therefore, his petition was untimely. Specifically, the City noted that WCJ found that “trichloroethylene would not be detected at every fire” and that there was “no way to pinpoint a fire call or last date that Claimant was exposed to an amount of any carcinogen that contributed to his cancer,” and that therefore the grant of Sevanick’s petition was in error because no date of last exposure was established for any Group 1 carcinogen, and the WCJ merely presumed Sevanick’s exposure. Slip op. at 13-14. The City further asserted that the 600-week filing limitation is measured from the last date of exposure to the hazard alleged to have caused the disease, not from the last date of employment.
Commonwealth Court held that Section 301(c)(2) of the Act applies only when the occupational disease manifests itself before the effective date of Act 46 in July 2011 and that Sevanick met the Section 301(f) deadline to file the claim within 600 weeks of the last date of workplace exposure to a Group 1 carcinogen. The court then noted that under Act 46, “a claimant must initially establish he has an occupational disease as defined by Section 108(r) and must produce evidence that it is possible that the carcinogen in question causes the type of cancer he has,” however, Section 108(r) does not require the claimant to prove that the identified Group 1 carcinogen actually caused the cancer. Slip op. at 8-9, citing City of Phila. Fire Dep’t v. Workers’ Comp. Appeal Bd. (Sladek), 195 A.3d 197 (Pa. 2018) (emphasis in original). Thus, Commonwealth Court agreed with the Board that “Employer’s interpretation is not in accord with Sladek and imposes an almost impossible burden. Employer does not proffer an explanation as to how a typical firefighter would be able to pinpoint the exact moment of exposure to a particular Group 1 carcinogen.” Slip op. at 14. Thus, “[t]he ‘triggering event’ for the purposes of Section 301(f) of the Act is not the date of injury or disability, as in Section 315, but rather the claimant’s last day at work with exposure to a known Group 1 carcinogen.” Slip op. at 14, quoting Fargo v. Workers’ Comp. Appeal Bd. (City of Phila.), 148 A.3d 514, 521 (Pa. Cmwlth. 2016). Here, Sevanick’s last workplace exposure would have occurred in approximately August 2006, well within the 600 weeks prior to the filing of his Petition. The court concluded:
In sum, Claimant here did not need to bring his claim within the 300- week period of Section 301(c)(2), where he filed within 600 weeks of his last date of exposure to the hazard alleged to have caused his kidney cancer. There is no dispute that by filing within 600 weeks, rather than within 300 weeks, Claimant was not entitled to the statutory presumption referenced in Section 301(f) and Section 301(e) of the Act. Notwithstanding that he did not qualify for the presumption, Claimant’s Petition was still timely and was substantiated sufficiently by his and Dr. Guidotti’s credited testimony, testimony which met the standard addressed in Sladek. Thus, the Board did not err in affirming the WCJ’s decision that Claimant met his burden of proof on the claim.
Slip op. at 15-16.
The Supreme Court granted allocatur limited to the following issue:
Whether, in contradiction to its own past opinions, the Commonwealth Court committed an error of law when it held that a claimant seeking benefits for an occupational disease under Section 108 of the Pennsylvania Workers’ Compensation Act has to satisfy the manifestation rule found at Section 301(c)(2)?