                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Carl Schmied,                          :
                          Petitioner   :
                                       :
                     v.                :
                                       :
Workers’ Compensation Appeal           :
Board (City of Philadelphia),          :   No. 147 C.D. 2018
                         Respondent    :   Submitted: July 6, 2018


BEFORE:     HONORABLE ANNE E. COVEY, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                FILED: August 9, 2018

            Carl Schmied (Claimant) petitions this Court for review of the Workers’
Compensation (WC) Appeal Board’s (Board) January 10, 2018 order affirming the
Workers’ Compensation Judge’s (WCJ) decision denying Claimant’s claim petition
(Claim Petition). The sole issue before this Court is whether the Board erred by
concluding that Claimant failed to establish an entitlement to WC benefits. After
review, we affirm.
            Claimant is 61 years old and began working for the City of
Philadelphia’s (Employer) Fire Department on February 22, 1977. At the time of
hire, he had a physical exam, and he had not treated for any form of cancer before
joining the Fire Department. In October 1979, Claimant was promoted to lieutenant.
Before his promotion, he had several physical exams. He did not treat for cancer
during his career with the Fire Department. He retired from the Fire Department on
January 16, 2009.
               During his career, Claimant worked at a number of different fire stations,
including Ladder 32, Engine 29, Ladder 21, Engine 7, Engine 14, Engine 36, Ladder
2, Engine 71 and Engine 64. None of the stations had diesel fuel emission capture
systems. While conducting an equipment check at the beginning of every shift, the
engines were started and the pumps were checked. Each apparatus usually ran for 15
to 20 minutes. In order to fill up the air bottles for Employer’s cascade system, the
trucks would run for an hour to an hour and ten minutes. As both a firefighter and a
lieutenant, Claimant had to be on the apparatus floor while the trucks were running.
He could smell the diesel fuel emissions in the firehouse. He also saw residue or soot
on the walls, which had to be cleaned once each week. Claimant consistently viewed
residue and soot on the walls throughout his career. He was exposed to diesel fuel
emissions at all of the fire stations at which he worked. Claimant fought his last fire
in December 2008, just before he retired in January 2009.
               Claimant was diagnosed with thyroid cancer in November 2010.
Thereafter, Claimant had three cancer surgeries. The first two surgeries were in
November 2010 and the last one was performed in September 2011. On December
14, 2012, Claimant filed the Claim Petition alleging that his thyroid cancer resulted
from direct exposure to International Agency for Research on Cancer (IARC) Group I
carcinogens while working as a firefighter. Claimant sought payment of medical
expenses only. Employer denied all material allegations and asserted a number of
defenses, including notice and the statute of limitations. WCJ hearings were held on
January 30, August 7, September 18, October 23, and November 6, 2013, February
24, May 14, July 30 and September 17, 2014.
               On May 12, 2015, the WCJ denied the Claim Petition, concluding that
the Section 301(e) of the WC Act (Act),1 77 P.S. § 413,2 presumption (Presumption)

      1
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
      2
          Added by Act of October 17, 1972, P.L. 930, 77 P.S. § 413.
                                                 2
did not apply,3 and Claimant did not establish that his employment as a firefighter
caused his thyroid cancer. The WCJ alternatively concluded that Employer rebutted
any Presumption. Claimant appealed to the Board. On August 12, 2016, the Board
vacated the WCJ’s decision and remanded to the WCJ for a new determination
because the WCJ applied the wrong burden of proof.                      Specifically, the Board
concluded that the Presumption applied and claimants suffering from an occupational
disease are entitled to payment of reasonable and necessary medical expenses
regardless of whether the disease has caused earnings loss. On March 20, 2017, the
WCJ again concluded on remand that the Presumption did not apply4 and denied the
Claim Petition. Claimant appealed to the Board. On January 10, 2018, the Board
affirmed the WCJ’s decision. Claimant appealed to this Court.5
               Initially, Section 301(c)(2) of the Act provides, in relevant part:

               The terms ‘injury,’ ‘personal injury,’ and ‘injury arising in
               the course of his employment,’ as used in this [A]ct, shall
               include, unless the context clearly requires otherwise,
               occupational disease as defined in [S]ection 108 of th[e]
               [A]ct: Provided, That whenever occupational disease is the


       3
          Section 301(e) of the Act provides, in relevant part:
                If it be shown that the employe, at or immediately before the date of
                disability, was employed in any occupation or industry in which the
                occupational disease is a hazard, it shall be presumed that the
                employe’s occupational disease arose out of and in the course of his
                employment[.]
77 P.S. § 413. The WCJ determined that the Presumption did not apply because Claimant was not
employed at or immediately before his alleged date of disability.
        4
          The WCJ determined that the Presumption did not apply because Claimant failed to
establish that his thyroid cancer was the type of cancer caused by Group 1 carcinogens to which he
was exposed as required by Section 108(r) of the Act, added by Section 1 of the Act of July 7, 2011,
P.L. 251, 77 P.S. § 27.1(r).
        5
          “On review[,] this Court must determine whether constitutional rights were violated, errors
of law were committed, or necessary findings of fact were supported by substantial competent
evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d 598, 601 n.6
(Pa. Cmwlth. 2014).


                                                 3
               basis for compensation, for disability or death under th[e]
               [A]ct, it shall apply only to disability or death resulting
               from such disease and occurring within three hundred
               weeks after the last date of employment in an occupation or
               industry to which he was exposed to hazards of such
               disease[.]

77 P.S. § 411(2). Section 301(e) of the Act establishes the Presumption. It states:

             If it be shown that the employe, at or immediately before
             the date of disability, was employed in any occupation or
             industry in which the occupational disease is a hazard, it
             shall be presumed that the employe’s occupational disease
             arose out of and in the course of his employment, but this
             [P]resumption shall not be conclusive.
77 P.S. § 413. Section 301(f) of the Act6 mandates:
               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
               [S]ection 108(r) [of the Act] 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 [P]resumption of this subsection may be
               rebutted by substantial competent evidence that shows that
               the firefighter’s cancer was not caused by the occupation of
               firefighting. . . . Notwithstanding the limitation under
               [Section 301(c)(2) of the Act] with respect to disability or
               death resulting from an occupational disease having to
               occur within three hundred weeks after the last date of
               employment in an occupation or industry to which a
               claimant was exposed to the hazards of disease, claims filed
               pursuant to cancer suffered by the firefighter under
               [S]ection 108(r) [of the Act] may be made within six
               hundred weeks after the last date of employment in an
               occupation or industry to which a claimant was exposed to
               the hazards of disease. The [P]resumption provided for
               under this subsection shall only apply to claims made
               within the first three hundred weeks.

      6
          Added by Section 1 of the Act of July 7, 2011, P.L. 251.
                                                  4
77 P.S. § 414. Section 108(r) of the Act7 defines an occupational disease to include
“[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 [IARC].” 77 P.S. §
27.1(r).
                 Claimant argues the Board erred by concluding that he failed to establish
an entitlement to WC benefits because the Board misinterpreted Sections 108(r) and
301(f) of the Act.8 Specifically, Claimant contends that

            [Dr. Barry Singer, M.D. (]Dr. Singer[)] provide[d]
            uncontradicted evidence to establish that thyroid cancer is a
            ‘cancer caused by exposure to a known carcinogen which is
            recognized as a Group [1] carcinogen by the IARC’ as
            required by Section 108(r) [of the Act]. Dr. Singer
            specifically establishe[d] that thyroid cancer is related to
            all-site IARC Group [1] carcinogens, arsenic and dioxin.
            ([Reproduced Record (R.R.) at] 116-[]117).            These
            carcinogens cause thyroid cancer through endocrine
            disruption. ([R.R. at] 114 –[]116).
Claimant Br. at 14. However, Dr. Singer testified:
                 Q. Doctor, in other cancer cases that we’ve had, we’ve
                 looked at the IARC list of carcinogens found in smoke and
                 compared that to the IARC list of carcinogens by the cancer
                 site.
                 A. Yes, sir.
                 Q. And is there any carcinogen listed by the IARC that a
                 firefighter’s exposed to that’s directly related to thyroid
                 cancer?
                 A. None specifically.        You just have the general
                 carcinogens like arsenic, dioxin that may cause cancers in
                 any organ, but there’s none specifically that relates to the
                 thyroid.
                 Q. And in reviewing this matter and testifying and being
                 involved over the years, you’ll agree that the IARC cancer

      7
           Added by Section 1 of the Act of July 7, 2011, P.L. 251.
      8
           Claimant’s entire argument rests on his assertion that he was entitled to the Presumption.
                                                    5
            lists and even the monographs for the carcinogens, other
            than the all-site carcinogens, there’s no connection
            between thyroid cancer and a specific carcinogen listed
            by the IARC, even in the monographs?
             A. I would agree.
R.R. at 116 (emphasis added).
            This Court has explained:
            [T]o establish that a firefighter’s cancer is an occupational
            disease, the firefighter must show that he has been
            diagnosed with a type of cancer ‘caused by exposure to a
            known carcinogen which is recognized as a Group 1
            carcinogen.’ 77 P.S. § 27.1(r) (emphasis added). Once a
            firefighter establishes that his type of cancer is an
            occupational disease, then he may take advantage of the
            statutory [P]resumption in Section 301(e) and (f) of the Act.
            The [P]resumption relieves the firefighter of the need to
            prove that his cancer was caused by his workplace exposure
            and not another cause. See . . . 77 P.S. § 413. So long as
            the firefighter can show four years of continuous service
            and the absence of cancer prior to that service, he is entitled
            to compensation under Section 301(f) of the Act[.]

City of Phila. Fire Dep’t v. Workers’ Comp. Appeal Bd. (Sladek), 144 A.3d 1011,
1020 (Pa. Cmwlth. 2016) (emphasis added), appeal granted, 167 A.3d 707 (Pa.
2017). In the instant case, the Board opined:

            Section 108(r) [of the Act] requires a claimant to establish
            that the cancer contracted is a type of cancer caused by
            exposure to the Group 1 carcinogen to which the claimant
            was exposed in the workplace and, only once the claimant
            makes these showings, is he entitled to the rebuttable
            presumptions set forth in Section 301(f) and Section 301(e)
            of the Act. Here, . . . Claimant did not demonstrate that
            his thyroid cancer is an occupational disease for
            firefighters under Section 108(r) [of the Act]. He failed
            to establish that his disease is a type of cancer caused by
            exposure to a recognized Group 1 carcinogen.

Board Dec. at 11 (footnotes and citations omitted) (emphasis added). We find no
error in the Board’s conclusions.

                                          6
             This Court acknowledges that

             [t]he uncontradicted record establishes:
             1) [Claimant] was diagnosed with thyroid cancer in 2010
             just after retiring from active duty status with the
             [Employer]. He retired on January 16, 2009 and filed his
             Claim Petition within 300 weeks on April 20, 2012[;]
             2) [Claimant] has more than four years of continuous
             service in firefighting[;]
             3) [Claimant] has had direct exposure to IARC Group [1]
             carcinogens from smoke, soot, diesel emissions, asbestos,
             dirty gear and second-hand cigarette smoke as a firefighter
             for [Employer] through his retirement in [January 2009][;]
             and
            4) [Claimant] passed physical examinations prior to
            asserting a claim as well as prior to engaging in firefighting
            duties, and the examinations failed to reveal any evidence
            of the condition of cancer.
Claimant Br. at 14 (record citations omitted). Notwithstanding,
             [t]he [P]resumption in Section 301(e) of the Act does not
             come into play until the claimant has established that he has
             an occupational disease. In the case of a firefighter
             claimant, he does this by showing that his cancer is a type
             caused by Group 1 carcinogens. Claimant did not do this.

Sladek, 144 A.3d at 1021. Accordingly, because the Board interpreted Sections
108(r) and 301(f) of the Act correctly, the Board properly concluded that Claimant
failed to establish an entitlement to WC benefits.
             For all of the above reasons, the Board’s order is affirmed.


                                       ___________________________
                                       ANNE E. COVEY, Judge

Judge Fizzano Cannon did not participate in the decision in this case.




                                           7
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Carl Schmied,                           :
                        Petitioner      :
                                        :
                  v.                    :
                                        :
Workers’ Compensation Appeal            :
Board (City of Philadelphia),           :   No. 147 C.D. 2018
                         Respondent     :


                                      ORDER


            AND NOW, this 9th day of August, 2018, the Workers’ Compensation
Appeal Board’s January 10, 2018 order is affirmed.



                                      ___________________________
                                      ANNE E. COVEY, Judge
