Workers’ Comp/Statutory Interpretation/Presumption of Compensability 

City of Philadelphia Fire Dept. v. W.C.A.B. (Sladek),144 A.3d 1011 (Pa. Cmwlth. 2016) (en banc), allocatur granted, 13 EAP 2017


Sladek presents issues concerning (1) what a Workers’ Compensation claimant must prove before the Act’s rebuttable presumption of compensability for an occupational disease arises; and (2) what evidence the employer must present to overcome the presumption.  Where a claimant establishes that he has an occupational disease listed in Section 108 of the Act, a rebuttable presumption of compensability arises.  The claimant need not prove the disease was caused by workplace exposure, as opposed to another exposure; instead, it is the employer’s burden at that point to prove that it was not workplace pollution that caused the claimant’s disease.

In this case, involving a firefighter’s claim that his malignant melanoma was caused by workplace exposure, the Workers’ Compensation Judge and the Board granted benefits, reasoning that because the firefighter proved that he was exposed on the job to carcinogens identified in the Act, his malignant melanoma met the definition of occupational disease set forth in Section 108(r) of the Act. The Board held that Claimant did not need to show that the carcinogens to which he was exposed caused his particular cancer.

The Commonwealth Court disagreed, citing the statute’s definition of occupational disease relied on by the claimant: “Cancer 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).  The Court explained:

In Section 108(r) of the Act, the General Assembly placed the words “caused by” between “cancer suffered by a firefighter” and “exposure to a known [Group 1] carcinogen” for a reason. The Board reasoned that where a claimant shows “that he had cancer generally and was exposed to any Group 1 carcinogens, he [has] met his initial burden.” Board Adjudication, 3/13/2015, at 13. We must give effect to “caused by,” and the Board erred in not doing so. It was incumbent upon Claimant to prove that his malignant melanoma is a type of cancer caused by the Group 1 carcinogens to which he was exposed in the workplace to establish an occupational disease. Only then do the presumptions in Section 301(e) and (f) of the Act come into play.

144 A.3d 1021-1022.

Also at issue is the evidence the employer must adduce to overcome the presumption.  The Board rejected as inadequate the employer’s expert’s testimony that ultraviolet radiation is the only known cause of malignant melanoma, because the expert failed to offer an opinion as to what caused claimant’s malignant melanoma. The Commonwealth Court reversed, holding that the employer need not prove the cause of claimant’s melanoma, only that it was not a workplace cause.

For more information, contact Kevin McKeon or Dennis Whitaker