            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Charles Sessions,                           :
                      Petitioner            :
                                            :
               v.                           : No. 1223 C.D. 2017
                                            : Submitted: February 23, 2018
Workers’ Compensation Appeal                :
Board (City of Philadelphia),               :
                   Respondent               :


BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                                     FILED: March 15, 2018


               Charles Sessions (Claimant) petitions for review of the Workers’
Compensation        Appeal     Board’s     (Board)     order    affirming    the       Workers’
Compensation Judge’s (WCJ) decision denying him benefits under Section 108(r)
of the Workers’ Compensation Act (Act),1 77 P.S. § 27.1(r), for prostate cancer he
allegedly contracted from exposures as a firefighter.


                                               I.
               Before reaching the particular facts of this appeal, a brief review of
the relevant statutory provisions and case law is helpful.

      1
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1–1041.4, 2501–2708.
                                           A.
                As pertinent, the statutory scheme is as follows. Section 301(c)(2) of
the Act states that a compensable “injury” includes “occupational disease as
defined in section 108 of this act.” 77 P.S. § 411(2). Section 108 lists a number of
occupational diseases. Pertinently, in 2011, the General Assembly enacted Act
46,2 which added Section 108(r), recognizing 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 [(IARC)].” 77 P.S. § 27.1(r).


                Section 301(e) of the Act establishes a “presumption regarding
occupational disease” that applies to any occupational disease, and provides:

                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 presumption shall not be
                conclusive.


77 P.S. § 413 (emphasis added). Act 46 added Section 301(f), which adds another
condition to that presumption where the occupational disease is cancer suffered by
a firefighter. It provides, in relevant part:




      2
          Act of July 7, 2011, P.L. 251.



                                            2
              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
              presumption 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. . . .


77 P.S. § 414. In other words, to establish a claim under Section 108(r), it must be
shown that:     (i) the claimant worked for four or more years in continuous
firefighting duties, (ii) the claimant had direct exposure to a carcinogen classified
as Group 1 by the IARC, and (iii) the claimant passed a physical examination prior
to engaging in firefighting duties that did not reveal evidence of cancer.


              As for the timing of a claim petition, Section 301(f) continues:

              Notwithstanding the limitation under subsection (c)(2)
              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 section 108(r) 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
              presumption provided for under this subsection shall only
              apply to claims made within the first three hundred
              weeks.


                                          3
Id. (emphasis added). Section 301(c)(2), which is referenced above, provides, in
pertinent part:

               That whenever occupational disease is the basis for
               compensation, for disability or death under this act, 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).3


                                               B.
               Our first occasion to interpret Section 108(r) of the Act was in City of
Philadelphia Fire Department v. Workers’ Compensation Appeal Board (Sladek),
144 A.3d 1011 (Pa. Cmwlth. 2016) (en banc), appeal granted City of Philadelphia
Fire Department v. Workers’ Compensation Appeal Board (Sladek), 167 A.3d 707
(Pa. 2017).4 In that case – brought by Claimant’s current counsel – we vacated an

       3
         This Court has held that Section 301(f) of the Act requires a firefighter to file a claim
petition within 300 weeks of his last day of employment in order to take advantage of the
statutory presumption that his cancer was work-related. See Hutz v. Workers’ Compensation
Appeal Board (City of Philadelphia), 147 A.3d 35 (Pa. Cmwlth. 2016), and Demchenko v.
Workers’ Compensation Appeal Board (City of Philadelphia), 149 A.3d 406 (Pa. Cmwlth. 2016).
The 300-week period is measured by the time between (1) claimant’s “last date of employment
in an occupation or industry to which the claimant was exposed to the hazards of disease,” and
(2) the date the claim petition is filed. Fargo v. Workers’ Compensation Appeal Board (City of
Philadelphia), 148 A.3d 514, 520 (Pa. Cmwlth. 2016), appeal denied, 168 A.3d 1245 (Pa. 2017);
Hutz, 147 A.3d at 52–53 (Pa. Cmwlth. 2016).

       4
        On March 1, 2017, our Supreme Court granted a petition for allowance of appeal for the
following issues:
(Footnote continued on next page…)
                                                4
award of benefits under Section 108(r) that was based on the Board’s
misinterpretation of the language in that provision and held that Section 108(r)
requires a claimant-firefighter to prove his particular type of cancer “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.” Sladek, 144 A.3d at 1021-22
(emphasis added).


             Since the claimant’s counsel filed the initial claim petition in Sladek,
he has gathered approximately 40 firefighter-claimants, 26 of which have been
diagnosed with prostate cancer. 5


(continued…)


             (1) Whether the Commonwealth Court, in a case of first
             impression, committed an error of law by misinterpreting Section
             108(r) to require a firefighter diagnosed with cancer caused by an
             IARC Group I carcinogen to establish exposure to a specific
             carcinogen that causes his/her cancer in order to gain the rebuttable
             presumption provided by the law?

             (2) Whether the Commonwealth Court committed an error of law
             by concluding that a legislatively-created presumption of
             compensability may be competently rebutted by a general
             causation opinion, based entirely upon epidemiology, without any
             opinion specific to the firefighter/claimant making the claim?

City of Philadelphia Fire Department v. Workers’ Compensation Appeal Board (Sladek), 167
A.3d 707 (Pa. 2017).

      5
         See Campbell v. Workers’ Compensation Appeal Board (City of Philadelphia), (Pa.
Cmwlth., 1385 C.D. 2016, filed June 28, 2017); Lee v. Workers’ Compensation Appeal Board
(City of Philadelphia), (Pa. Cmwlth., 1562 C.D. 2016, filed May 24, 2017); Kimberly Clark
(Footnote continued on next page…)
                                              5
              Significantly, in all of these cases, Claimant’s counsel, on behalf of
the claimant-firefighters, has mainly presented the same exact deposition and
documents. These include the same “global deposition” and reports of Barry L.
Singer, M.D. (Dr. Singer), board certified in internal medicine, hematology and
medical oncology, as well as other reports and letters offered by experts opining
that certain firefighter exposures cause, inter alia, prostate cancer. In addition, in
each of those cases, the employer/defendant has responded with its own expert
reports and testimony.       Primarily, these documents include the reports and
deposition of Tee Guidotti, M.D., M.P.H. (Dr. Guidotti), who is board certified in
internal medicine, pulmonary medicine and occupational disease, and is trained in
toxicology and epidemiology. In essence, his reports and testimony do not go to
the specific causation of any particular firefighters’ cancer. Rather, it only serves
as a critique to Dr. Singer’s conclusions, credentials and methodology, opining that


(continued…)

Corp. v. Workers’ Compensation Appeal Board (Bromley), 161 A.3d 446 (Pa. Cmwlth.),
reargument denied (July 7, 2017), appeal denied, 174 A.3d 1027 (Pa. 2017); Logan v. Workers’
Compensation Appeal Board (City of Philadelphia), (Pa. Cmwlth., 2605 C.D. 2015, filed March
9, 2017); Campbell v. Workers’ Compensation Appeal Board (City of Philadelphia), (Pa.
Cmwlth., 1031 C.D. 2016, filed March 3, 2017); City of Warren v. Workers’ Compensation
Appeal Board (Haines), 156 A.3d 371 (Pa. Cmwlth.), appeal denied sub nom. City of Warren
(Fire Department) v. Workers’ Compensation Appeal Board, 170 A.3d 1039 (Pa. 2017);
Szymanski v. Workers’ Compensation Appeal Board (City of Philadelphia), (Pa. Cmwlth., 494
C.D. 2016, filed February 14, 2017); Capaldi v. Workers’ Compensation Appeal Board (City of
Philadelphia), 152 A.3d 1107 (Pa. Cmwlth. 2017); Lucas v. Workers’ Compensation Appeal
Board (City of Sharon), (Pa. Cmwlth., 2606 C.D. 2015, filed December 20, 2016); Demchenko v.
Workers’ Compensation Appeal Board (City of Philadelphia), 149 A.3d 406 (Pa. Cmwlth. 2016);
Fargo v. Workers’ Compensation Appeal Board (City of Philadelphia), 148 A.3d 514, 516 (Pa.
Cmwlth. 2016), appeal denied, 168 A.3d 1245 (Pa. 2017); Hutz v. Workers’ Compensation
Appeal Board (City of Philadelphia), 147 A.3d 35 (Pa. Cmwlth. 2016).



                                             6
there is insufficient evidence to support the conclusion that firefighting causes
prostate cancer.


             Dating back to our decision in Hutz, the result is consistently the
same. While various WCJs have found that unequivocal evidence establishes that
these claimant-firefighters were exposed to Group I carcinogens during their career
as firefighters, each also found that Dr. Singer did not credibly or persuasively
establish that exposure to these carcinogens was a significant contributing factor in
contracting their type of cancer. Several of these cases have dealt with the denial
of Section 108(r) claims for compensation for prostate cancer, which, save for
particularized reports and testimony about the firefighter-claimant, have involved
almost identical records. See Hutz, 147 A.3d at 45-46, 56-57; see also Demchenko,
149 A.3d at 414-16.


             With all of that, we turn to the underlying facts of this appeal.


                                          II.
                                          A.
             Claimant was employed by the City of Philadelphia Fire Department
(Employer) since July 29, 1985, first as a firefighter and then as a fire lieutenant.
While still employed by Employer, in September 2002, he was diagnosed with
prostate cancer via biopsy and underwent a retropubic radical prostatectomy on
November 4, 2002. He did not return to work until March 2003 after which he
retired on July 22, 2007.




                                          7
              In October 2012, after the claimant in Sladek filed his initial claim
petition, Claimant received a letter from his attorney, who had not yet been
retained, with a report from Dr. Singer. Until he received that letter, he was
unaware that his prostate cancer may have been related to his fire exposures. As a
result, and even though it had been almost ten years since his surgery and recovery,
Claimant filed a claim petition pursuant to Section 108(r) of the Act, alleging that
he sustained prostate cancer as a result of exposures while working as a firefighter
on September 25, 2002. Claimant sought total disability benefits from November
4, 2002, to March 1, 2003, and payment of medical bills. Employer filed an
Answer denying the material allegation of the claim petition.6


              Before the WCJ, Claimant testified that he was 50 years old when he
was diagnosed with prostate cancer.            Before his diagnosis, he never had any
problems with his prostate. The diagnosing doctor was Dr. Richard Greenberg
(Dr. Greenberg), and his family doctor at the time was Dr. Gene Geld (Dr. Geld).
He is still currently under the care of both doctors. Because of the procedure, he
now has erectile dysfunction and leakage and medication does not help either
issue. He also receives periodic testing of prostate-specific antigen (PSA).


              Regarding his employment with Employer, Claimant was given a
physical when he was hired and had several more during his employment, none of
which resulted in restrictions. He was never treated for any type of cancer before


       6
        Although Claimant also filed a penalty petition, the WCJ ultimately denied that petition
and Claimant did not appeal.



                                               8
becoming a firefighter. Claimant testified that he worked at a number of different
stations, all of which had at least two diesel-powered trucks but did not have diesel
fuel emission capture systems. He routinely smelled diesel fuel emissions. He
also cleaned the firehouses periodically, which involved cleaning soot and diesel
fuel residue off the wall.


             During his career, Claimant worked in fire suppression, which
involves putting the fire out and dragging the hose line in, raising ladders, opening
walls and and roofs, ventilating, as well as search and rescue. He also worked in
overhaul, which involves opening up walls and floors to search for hidden fire or
smoldering fires. Smoke is visible in all of these phases. He has fought structure
fires, grass fires, car fires, commercial fires, high-rise fires, chemical fires and
rubbish fires.


             Claimant testified that early in his career, he remembered one man
being assigned a self-contained breathing apparatus (SCBA), and that in the 1990s,
it became mandatory to wear one. However, even then, SCBAs were not used in
all phases of firefighting, such as during overhaul, exterior fires and car fires. He
testified that the last fire he fought was a dwelling fire in mid-July 2007, but he
could not provide an exact date.


             Prior to becoming a firefighter, Claimant served in the Navy from
1972 to 1979, first as an aviation ordnance aircrew member, where he did have
exposure to jet fuel at naval stations, and then as a recruiter. He was never on a




                                         9
naval ship, but agreed that he was regularly around jet fuel and jet emissions.
After that, he worked as an apprentice plumber.


             Regarding his history with cancer, Claimant testified that his father, a
lifetime smoker, had throat cancer, but no one else in his family had a history of
cancer. Claimant has never smoked and his wife does not smoke. However, he
was exposed to tobacco smoke at the firehouse where there were no restrictions on
smoking until the late 1990s or 2000.


                                          B.
             Following Claimant’s testimony, he submitted into evidence reports
specific to his claim. The first was a February 22, 2012 report from Dr. Geld,
stating that Claimant’s routine physical examinations before 2002 found him to be
cancer free. The second is the April 16, 2012 report of Dr. Singer, who reviewed
an affidavit of personal history created by Claimant as well as the records of his
surgical oncologist, Dr. Greenberg. In that report, Dr. Singer identified studies
relating to firefighter exposure and prostate cancer and opined, in pertinent part:

             I have reviewed the general literature regarding
             firefighters and cancer. Firefighters are exposed to
             smoke at every fire particularly the overhaul phase.
             Although [Claimant] did not wear a SCBA towards the
             end of his career, he certainly did not wear it 100% of the
             time. He also did not wear it during overhaul since it was
             not required. Various carcinogens are present in smoke
             since smoke is a complex mixture of cancer causing
             chemicals depending on what is burning. The IARC
             Group 1 carcinogens most commonly found in smoke
             include arsenic, asbestos, benzene, benzo(a)pyrene, 1,3-
             butadiene, formaldehyde and soot. Also there are
             common IARC Group 2-A carcinogens found in smoke
                                         10
             consisting of creosote, diesel engine              exhaust,
             polychlorinated    biphenyls, polycylic            aromatic
             hydrocarbons and styrene.

                                        ***

             Upon completion of my review of these records it is my
             opinion that [Claimant’s] exposure to carcinogens while
             working for [Employer] was a substantial contributing
             factor in the development of his prostate cancer. The
             records I reviewed . . . indicate this patient received all
             necessary and appropriate care for treatment of his
             prostate. He continues to have follow-up regularly [with
             Dr. Greenberg] at Fox Chase Cancer Center.

             I hold all my opinions within a reasonable degree of
             medical certainty.


(Reproduced Record (R.R.) at 5a-6a.) Significantly, Dr. Singer’s report does not
point to any particular carcinogen that is linked to causing prostate cancer.


                                         C.
             As in Hutz and Demchenko, Claimant and Employer also submitted a
number of documents relating to firefighter exposure and prostate cancer. For
simplicity, these documents will be discussed in their logical order.


                                          1.
             Regarding firefighter exposures and cancer, Claimant first submitted
medical reports from Virginia Weaver, M.D. (Dr. Weaver), a physician board
certified in internal medicine and occupational medicine. Dr. Weaver opined that,
within a reasonable degree of medical certainty, firefighters are exposed to IARC
Group 1 carcinogens in the course of their work, many of which are found in

                                         11
smoke from burning structures, including buildings and automobiles. Although
firefighters use protective equipment, the degree of protection is nevertheless
incomplete; firefighters routinely observe black soot on their skin and in nasal
discharges after major fires, and until recently, most firefighters routinely removed
their respiratory protection during the overhaul process. She also explained that
firefighters have been exposed to diesel exhaust in fire stations for many years, and
that recent studies by the National Cancer Institute and the National Institute for
Occupational Safety and Health provide additional data supporting the
carcinogenicity of diesel exhaust.


             Significantly, Dr. Weaver did not offer any specific testimony or
evidence relating to the causal relationship between certain Group 1 carcinogens
that firefighters are exposed to in the course of their work and prostate cancer.


                                          2.
             Claimant also submitted the global deposition of Dr. Singer. Dr.
Singer’s testimony pertains to his methodology and the way that he reviews and
provides his opinion for those cases. During that deposition, Dr. Singer testified
that he has treated cancer patients for more than 40 years, focusing on breast, colon
and lung cancers.     He is not an epidemiologist or toxicologist and does not
specialize in the etiology of cancer.


             Dr. Singer stated that in 2008, he was contacted by Claimant’s
attorney to evaluate the cancer history of a number of firefighters to determine
whether their cancer was work-related and, thus, compensable under the Act. He


                                          12
estimated that since 2008, he has reviewed 40 to 50 cases on referral from
Claimant’s attorney. Approximately 25 of those referrals involved firefighters
with prostate cancer. Dr. Singer testified that with each referral, he reviews the
firefighter’s medical history and an affidavit from the firefighter about his job
duties, length of service and family medical history. Dr. Singer did not conduct a
physical examination of any firefighter referred to him. Claimant’s attorney also
sends Dr. Singer articles from medical literature relevant to firefighters and cancer.
Dr. Singer evaluates these materials and then prepares a report, following the
above process.


             Regarding the affidavits submitted by Claimant’s attorney, Dr. Singer
explained that these documents “usually give a pretty thorough occupational
history, how long they were members or if they’re still members of the fire
department, their family history and a brief medical history. Of course the medical
history I get mainly from the records.” (R.R. at 85a.)


             Dr. Singer testified that he uses a differential diagnosis methodology
to assess the cause of a firefighter’s cancer, which practitioners use to assess the
history and symptoms of their patients. While Dr. Singer stated that this is not an
uncommon approach for him to use, he acknowledged on cross-examination that
there is an absence of scientific authority for the use of this methodology to
determine a causal connection between a given agent and a given cancer.


             Regarding the terminology contained in his individual reports, Dr.
Singer explained that a “substantial contributing factor” in the development of


                                         13
prostate cancer meant that if that factor did not exist, more likely than not the
firefighter would not have developed the disease; but for that factor, the disease
would not be present at the time. (R.R. at 128a.)


             On cross-examination, Dr. Singer acknowledged that the Center for
Disease Control (CDC) and other sources identify race, ethnicity, family history
and age as the most common risk factors for prostate cancer. He also agreed that
20% of all men will be diagnosed with prostate cancer during their lifetime, and
that prostate cancer is the leading cancer among men.


             Dr. Singer also acknowledged a number of flaws in the studies he
cited in reaching his opinions.        For example, he had not considered the
methodologies used by public health experts to determine what exposures cause
cancer, including studies published by the Environmental Protection Agency,
Veterans Administration, the National Academy of Science, and the IARC. Nor
did Dr. Singer consider the American Medical Association’s Guides to the
Evaluation of Disease and Injury Causation, the Federal Court handbook or the
Bradford Hill criteria. Dr. Singer did not do his own analysis of studies reported in
the literature or do any lab testing. He admitted that none of the studies he
reviewed were controlled for smoking. Further, Dr. Singer admitted that he was
unaware that the Pennsylvania Department of Health concluded that simply living
in Philadelphia, as the only controlled criteria, increased the risk of prostate cancer
by 40.6%.     He also did not study the Philadelphia population as to diet,
environmental exposures, ethnic heritage, geography or proximity to toxic waste
sites.


                                          14
                                          3.
             Employer, in response, submitted the deposition testimony and several
reports of Dr. Guidotti. Dr. Guidotti opined, within a reasonable degree of medical
certainty, that there is insufficient evidence from which to conclude that
firefighting causes prostate cancer as a matter of general causation. As he points
out, prostate cancer is not commonly attributable to occupational exposures, and it
is the leading type of cancer among men and at least 20% of all men will be
diagnosed with it at some point in their lifetime. Age is the primary risk factor for
prostate cancer.    During the late 40s and early 50s, the risk increases and
accelerates quickly. Family history is the next risk factor. An individual with a
male parent with prostate cancer is a first-degree risk.


             Dr. Guidotti also asserted there were numerous flaws in Dr. Singer’s
methodology and analysis due to his background as an oncologist rather than as an
expert in the cause of cancer. For example, Dr. Guidotti opined that regarding Dr.
Singer’s reports for the Philadelphia firefighters, he could not discern any
methodology used by Dr. Singer. Rather, it appeared that he rubber-stamped the
language of the studies without any weighing of the evidence or further discussion.
Moreover, Dr. Singer’s understanding of the nature of the exposure was limited to
the information contained in the firefighters’ affidavits; he did not discuss the
existence of other risk factors that could have played a role in the development of
cancer such as diet and smoking history. Although Dr. Singer alluded to several
Group 1 carcinogens, he did not match any carcinogen to a specific type of cancer.




                                          15
             Thus, based on the foregoing, Dr. Guidotti concluded that the opinion
submitted by Dr. Singer did not meet the standards generally accepted in the
scientific or medical communities for evaluating general causation in an
occupational case. Dr. Guidotti did not, however, offer an opinion with respect to
any particular case or claimant.


             Employer also submitted a March 2013 report from Janet L. Stanford,
Ph.D. (Dr. Stanford), who is a former Head of the Prostate Cancer Research
Program at the Fred Hutchinson Cancer Research Center and is currently a
research professor in the Epidemiology Department and an adjunct research
professor in the Urology Department at the University of Washington.              As
pertinent, Dr. Stanford opined that the median age for prostate cancer is 67 years,
with the median age for Caucasian Americans as 68 years and African Americans
as 64 years. Dr. Stanford also opined that about 58% of prostate cancer etiology is
due to environmental/lifestyle factors. While it is possible to estimate a likelihood
that an exposure may be associated with prostate cancer, she opined that it is not
possible to prove causality.


                                         4.
             As a response to Dr. Guidotti’s criticisms, Dr. Singer submitted
another December 19, 2012 report. Aside from defending his methodology, which
he has used for 40 years, Dr. Singer’s report further elaborates on the causal
relationship between certain firefighter exposures and prostate cancer. In pertinent
part, that report provides that while firefighters encounter a combination of
carcinogens, and that these carcinogens can have a synergistic effect that increases


                                         16
the risk of cancer, “[s]everal of the carcinogens have been related to specific
cancers in reliable studies and literature. . . . For example, prostate cancer can be
associated with arsenic, [polycyclic aromatic hydrocarbon (PAH)], and
phthalates.” (R.R. at 262a-263a) (emphasis added). Moreover, epidemiologic and
academic literature has “evaluat[ed] the biologic association between firefighter
carcinogen exposures and prostate cancer . . . [and] confirm[s] an increased
incidence of prostate cancer in the fire service.”      His conclusions are “also
supported by significant and reliable literature that supports the biologic
plausibility of the association between firefighting and prostate cancer.” (R.R.
263a) (emphasis added).


                                         5.
             In support of Dr. Singer’s reports and in response to Dr. Guidotti’s
reports, Claimant also presented the November 20, 2012 report of Grace K.
LeMasters, Ph.D. (Dr. LeMasters), a professor of epidemiology and biostatistics.
As pertinent, that report challenges Dr. Guidotti’s overall conclusions regarding
firefighter exposures and prostate cancer, as well as his statements that a detection
(or screening) bias explained the increased risk estimate for firefighters because
30% of the studies were generally completed before the PSA was in wide use.


             Her report also provides that the two most likely cancers to occur in
firefighters were testicular and prostate. She noted that while the average age at
diagnosis for prostate cancer is 67, out of the 26 cases presented by Claimant’s
attorney, only four firefighters were diagnosed after age 60. Of particular concern
is that three were diagnosed in their 40s, which she opined is rare, nine were


                                         17
diagnosed in their low 50s, and 11 between ages 56 and 60. Consequently, of the
26 cases, 42% were diagnosed at a relatively young age for prostate cancer.


              She also opined that there is a “biologic plausibility[7] that exposure to
endocrine disrupters (plasticizers) as well as chemicals known to induce genetic
and/or epigenetic changes, provides biologic pathways for both prostate and
testicular cancer as found by the IARC and LeMasters meta-analysis.” (R.R. at
43a.) Specifically, phthalate esters (an IARC Class 2B carcinogen), which are in
many household plastics commonly found in fires, are endocrine disruptors that
may cause prostate cancer, and the chemical class of [PAH], which “includes many
carcinogens including Benzo(a)pyrene” (an IARC Class 1 carcinogen). (R.R. at
39a.) However, Dr. LeMasters only discussed how the mechanisms of endocrine
disrupters and PAHs may affect the prostate and did not provide any evidence that
they actually cause prostate cancer.


              Dr. LeMasters also opined that there are other Group 1 carcinogens
that firefighters are plausibly exposed to, including:                    arsenic, cadmium,
formaldehyde, vinyl chloride, benzene and diesel exhaust. She did not mention
how these carcinogens are specifically shown to cause prostate cancer.


              In the conclusion of her report, Dr. LeMasters acknowledged that
firefighters are exposed to a “soup” of cancer-causing agents with unknown

       7
         According to Dr. LeMasters’ report, a “biologic plausibility” is when “unusually intense
circumstances of exposure to some chemical [are] identified as plausibly linked to prostate
cancer.” (R.R. at 36a) (emphasis added).



                                               18
interactions and, consistent with the language of her report, opined that “prostate
cancer is related to fire service exposures” and that there is a “biologic plausibility
of the association between firefighter exposures and . . . prostate cancer,” (R.R. at
43a) (emphasis added). She then concluded that, within a reasonable degree of
medical certainty, “firefighter exposures are, at a minimum, a significant
contributing factor in the development of prostate cancer.” (Id.) However, there
was no indication as to what, exactly, those exposures were or what exposures
were actually demonstrated to cause prostate cancer.


                                          6.
             Finally, in another report dated December 1, 2012, Dr. Guidotti
addressed Dr. LeMasters’ assertions and criticisms, retorting, in relevant part:

             Of course some chemicals cause cancer – we all know
             that. Furthermore, that many chemicals associated with
             exposure in the course of firefighting are carcinogenic is
             also not at issue. . . . The issue is what relevance this has
             for prostate cancer, a cancer that has few strong
             associations other than family history, especially when
             lifetime risk into advance age is taken into account.

                                        ***

             It is well established that firefighters are exposed to
             [PAHs] . . . not so well established for phthalates . . . but
             it is not established that these exposures cause or at least
             confer a sufficient elevated risk for prostate cancer.

                                        ***

             As I made clear in my original report, I do not take issue
             with the evaluation of individual cases on their merits.
             Such cases would most likely have certain
             characteristics, including relatively younger age and

                                          19
               possibly unusually intense exposure history, in keeping
               with some other cancers documented to be associated
               with chemical exposures and occupation.

               However, a prostate cancer identified in an older man is
               unlikely to have arisen from occupation regardless of
               firefighting history, because the odds of a man getting it
               during his lifetime are one in six already (as noted by Dr.
               LeMasters) and firefighting does not seem to change this
               substantially.


(R.R. at 1807a-1810a) (emphasis in original).


                                              III.
               On August 31, 2016, the WCJ denied Claimant’s claim petition,
concluding that Claimant failed to prove that his prostate cancer was causally
related to his service as a firefighter and that he has been diagnosed with a type of
cancer caused by a Group 1 carcinogen. Here, the WCJ accepted Claimant’s
testimony as to his history with the fire department and experience with cancer, but
found it not relevant to the issue of medical causation.


               Regarding the medical evidence, the WCJ found “the testimony of Dr.
Guidotti to be more credible and persuasive than that of Dr. Singer.” (WCJ’s
Decision at 16.) In addition to specifying eight reasons for crediting Dr. Guidotti
over Dr. Singer,8 the WCJ noted that:

       8
         In essence, the WCJ offered the following reasons for that credibility determination: (1)
Dr. Singer was not Claimant’s physician and never examined him; (2) Dr. Singer wrote virtually
identical reports for the other claimant-firefighters represented by Claimant’s counsel; (3) Dr.
Singer’s practice does not involve prostate cancer and, unlike Dr. Guidotti, he is not a
toxicologist or epidemiologist and has no research or publications on the etiology of prostate
(Footnote continued on next page…)
                                               20
              [W]hile Dr. Singer opined that firefighters are exposed to
              various carcinogens such as diesel fumes, smoke, soot,
              partially burned plastics and wood, PAHs,
              [polychlorinated      biphenyl],     arsenic,     benzene,
              [phth]alates, and other Group 1 and Group 2A IARC
              carcinogens, and that prostate cancer is “related” to
              the Group 1 carcinogens arsenic, cadmium, polycyclic
              aromatic hydrocarbons (PAHs) like benzo(a)pyrene,
              and dioxin, he did not testify that prostate cancer is
              caused by a particular Group 1 carcinogen but merely
              that the firefighters’ exposure to carcinogens was a
              contributing factor to the cases of prostate cancer he
              reviewed and that Claimant’s exposure to carcinogens
              while working for [Employer] was a substantial
              contributing factor in the development of his cancer.


(WCJ’s Decision at 17) (emphasis added). Accordingly, even though Dr. Guidotti
did not offer an opinion as to the specific cause of Claimant’s prostate cancer, the
WCJ nonetheless found his testimony sufficiently convincing that Dr. Singer’s
evaluation was deficient and that Claimant’s prostate cancer was not caused by
firefighter exposures.


              The WCJ concluded:

(continued…)

cancer; (4) Dr. Singer is not familiar with a multitude of other methodologies that could be used
for proving a causal relationship between a given agent and a particular cancer, and he could not
cite authority for using the differential diagnosis methodology; (5) Dr. Singer had no specific
information on exposures in any of the firefighter cases reviewed and relied on the firefighters’
self-reported histories; (6) Dr. Singer did not consider the dose-response relationship between a
given agent and a given disease; (7) Dr. Singer did not thoroughly consider other factors that
might be relevant to the causation issue, such as race, diet, alcohol consumption, and possible
military exposure to carcinogens; and (8) the main risk factor for prostate cancer is age, and
Claimant was 50 years old when he was diagnosed.



                                               21
               Even had he made his claim within 300 weeks, pursuant
               to the Commonwealth Court’s recent opinion in [Sladek],
               Claimant failed to prove that he is entitled to the
               presumption set forth in Section 301(e) because he did
               not show that prostate cancer is a hazard in the
               occupation of firefighting, or that he is entitled to the
               presumption in section 301(f) because he did not 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” as required by Section 108(r).
               In other words, the presumption would not come into
               play until Claimant established that his cancer (prostate)
               is a type caused by Group 1 carcinogens, which Claimant
               did not do.


(WCJ’s Determination at 19.)9


               Claimant appealed and the Board affirmed, concluding that Claimant
failed to demonstrate that his cancer is an occupational disease for firefighters
under Section 108(r) of the Act and that his disease is a type of cancer caused by
exposure to a recognized Group 1 carcinogen.                 This is because the WCJ, as
factfinder, found the testimony of Dr. Guidotti more credible than that of Dr.


       9
          In her conclusions of law, the WCJ determined that Claimant is not entitled to the
presumption in Section 301(e) and (f) because Claimant filed his claim petition approximately
490 weeks after his last exposure. This is because “Claimant’s last alleged exposure before his
disability was necessarily before his November 11, 2002 surgery. He filed this Claim Petition on
April 20, 2012, approximately 490 weeks later. Therefore, although permitted by Section 301(f)
to make a claim within 600 weeks, he is not entitled to the presumption of that subsection, which
applies only to claims made within 300 weeks of the last date of exposure.” (WCJ’s Decision at
19.) However, the WCJ did not rely on this conclusion because, regardless, Claimant failed to
demonstrate that he was exposed to a Class 1 carcinogen that is shown to cause prostate cancer.
Although we note that Claimant testified that his last exposure to a fire prior to retiring was in
mid-July 2007, because of the manner that we dispose of this matter, we do not reach the issue.



                                               22
Singer, and substantial evidence supported that determination.10 Claimant then
filed this petition for review.


                                            IV.
              On appeal, Claimant does not challenge the WCJ’s credibility
determinations or the lack thereof. Instead, he contends that the WCJ and Board
inappropriately shifted the burden onto Claimant to demonstrate that he was
exposed to a Class 1 carcinogen that causes prostate cancer, and that, in any event,
he established just that through uncontested and pertinent evidence that the WCJ
ignored.


              Regarding Claimant’s assertion, his counsel is well aware that we
have rejected identical arguments in a multitude of cases, including Hutz. In
addition, in each of those cases, virtually the same exact record and WCJ
credibility determinations have been before this Court for review.


              Regarding Claimant’s initial burden, in Hutz, we explained that a
claimant seeking compensation for cancer under Section 108(r) must establish that
“his disease is a type of cancer caused by exposure to a carcinogen recognized as a
Group 1 carcinogen by the IARC.” 147 A.3d at 53 (citing Section 108(r) of the




       10
           The Board further noted that Claimant raised the issue that the WCJ failed to make
credibility determinations for Dr. Weaver and Dr. LeMasters. The Board rejected that argument
noting that the WCJ summarized their reports and indicated that she considered all of the
evidence in rendering her opinion.



                                             23
Act, 77 P.S. § 27.1(r)). Obviously, the WCJ and Board did not err in placing the
burden on Claimant to do exactly that.


            Regarding Claimant’s latter claim, after a thorough review of the
record, we conclude that the WCJ’s findings are amply supported by the record
and find no such unequivocal/uncontested evidence in the record demonstrating
that Claimant was exposed to a particular IARC Class 1 carcinogen that has been
shown to cause prostate cancer. While Claimant may believe that certain evidence,
if accepted, supports a finding in his favor, that is not our standard of review. As
we have explained:

            In workers’ compensation cases, the WCJ is the ultimate
            fact-finder and has exclusive province over questions of
            credibility and evidentiary weight. A&J Builders, Inc. v.
            Workers’ Comp. Appeal Board (Verdi), 78 A.3d 1233
            (Pa. Cmwlth. 2013). The WCJ may accept the testimony
            of any witness, including a medical witness, in whole or
            in part. Id. We are bound by the WCJ’s credibility
            determinations. Id.

            Moreover, it is irrelevant whether the record contains
            evidence supporting findings other than those made by
            the WCJ; the crucial inquiry is whether the evidence
            supports the findings actually made. Id. Therefore, we
            must examine the entire record to see if it contains
            evidence a reasonable person might find sufficient to
            support the WCJ’s findings. Id. If the record contains
            such evidence, the findings must be upheld, even though
            the record may contain conflicting evidence.         Id.
            Additionally, we must view the evidence in the light
            most favorable to the prevailing party and give it the
            benefit of all inferences reasonably deduced from the
            evidence. Wagner v. Workers’ Comp. Appeal Board
            (Anthony Wagner Auto Repairs & Sales, Inc.), 45 A.3d
            461 (Pa. Cmwlth.2012).

                                         24
Hutz, 147 A.3d at 54. Obviously, as thoroughly outlined above, there is ample
support for the WCJ’s findings and credibility determinations.


            Accordingly, for the foregoing reasons, we affirm the Board’s order.



                                      ___________________________________
                                      DAN PELLEGRINI, Senior Judge


Judge Fizzano Cannon did not participate in this decision.




                                        25
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Charles Sessions,                      :
                     Petitioner        :
                                       :
               v.                      : No. 1223 C.D. 2017
                                       :
Workers’ Compensation Appeal           :
Board (City of Philadelphia),          :
                   Respondent          :




                                     ORDER


               AND NOW, this 15th day of March, 2018, it is hereby ordered that the
order of the Workers’ Compensation Appeal Board in the above-captioned matter
is affirmed.



                                       ___________________________________
                                       DAN PELLEGRINI, Senior Judge
