IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Vincent Regan, :

:

Petitioner :

:

v. : No. 141 C.D. 2018

: Submitted: June 15, 2018

Workers' Compensation Appeal :

Board (City of Philadelphia), :

:

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: January 18, 2019

Theresa Regan (Claimant) petitions for review of the January 10, 2018 

order of the Workers’ Compensation Appeal Board (Board), which affirmed the 

April 14, 2017 remand decision of a workers’ compensation judge (WCJ) denying 

the claim petitions filed by Vincent Regan (Decedent) and Claimant’s fatal claim 

petition. For the following reasons, we vacate and remand. 

Decedent worked for the City of Philadelphia (Employer) as a 

firefighter for 34 years before his retirement in 2008. On July 9, 2012, Decedent 

filed a claim petition pursuant to Section 108(r) of the Workers’ Compensation Act 

(Act),

1 alleging that he sustained metastatic lung cancer as a result of exposure to 

 

1 Act of June 2, 1915, P.L. 736, as amended, added by the Act of October 17, 1972, P.L. 

930, 77 P.S. §27.1(r).
2

Group 1 category carcinogens in smoke and diesel exhaust fumes while working as 

a firefighter. He alleged the injury date as the last date of exposure, August 13, 2008, 

the day he stopped working. Decedent filed a second claim petition under Section 

108(r) on July 9, 2012, alleging that he sustained prostate cancer on January 4, 2007,

also as a result of exposures to Group 1 carcinogens while working as a firefighter. 

Decedent died on September 29, 2012. On November 26, 2012, Claimant, 

Decedent’s widow, filed a fatal claim petition alleging that Decedent died from 

metastatic lung cancer. 

Claimant testified that Decedent joined the fire department after serving 

in the army for three years. She said that Decedent started smoking in 1974 and 

estimated that he smoked about half a pack a day until 2008. Claimant stated that 

Decedent’s father was a smoker and was diagnosed with lung cancer as well as 

prostate cancer when he was 87 years old. She said that Decedent’s sister also had 

cancer and believed that Decedent’s uncles had died of cancer as well.

Claimant testified that when Decedent returned from firefighting, she 

could smell smoke from his soot-covered fire gear when he opened his car. She said 

that soot came out when Decedent blew his nose. Claimant also submitted 

deposition testimony from two of Decedent’s fellow firefighters, Joseph Hitchens 

and Gene Lancaster. Hitchens testified that he and Decedent fought all kinds of fires 

together, including house fires, car fires, train fires, and rubbish fires. He added that 

Decedent was involved in ventilation, search and rescue, and overhaul and was 

exposed to smoke at every stage of the firefighting process.

Hitchens noted that in the 1990s, the use of a self-contained breathing 

apparatus became mandatory during interior firefighting. However, he said, it was 

quickly discovered that the mask and pack made some situations more dangerous, 
3

and, therefore, firefighters were no longer required to wear them. He stated that 

cigarette smoking was common in the firehouse and he observed Decedent smoking 

occasionally. Hitchens testified that the firehouse did not have a diesel fuel capture 

system for the fire trucks’ exhaust until near the end of Decedent’s career. He said 

that the walls and ceiling of the building were covered with soot and grime. 

Hitchens noted that Decedent eventually became a battalion chief,

which meant that he drove the chief engine but did not participate in overhaul

operations. Hitchens testified that in this new role, Decedent was on the scene of 

even more fires than before and still exposed to smoke. Hitchens stated there was 

no doubt in his mind that Decedent was exposed to smoke, diesel fuel, soot, and dirty 

bunker gear throughout his entire career as a firefighter. Lancaster confirmed 

Hitchens’ testimony, affirming the firefighters’ exposures to smoke, soot, diesel 

emissions, and building materials. 

Claimant also presented the deposition testimony of Barry Singer, 

M.D., who is board certified in internal medicine, hematology, and medical 

oncology. Dr. Singer noted that he is not a specialist in occupational medicine, nor 

a toxicologist or an epidemiologist. He stated that he is not engaged in primary 

research on the matter of firefighters and cancer and he has not published on the 

etiology of cancer. 

Dr. Singer testified that he reviewed extensive literature regarding 

firefighters’ exposures to carcinogens, including the International Agency for 

Research on Cancer (IARC) monographs. He explained that the IARC monographs 

identify environmental factors that can increase the risk of cancer, including

chemicals, complex mixtures, occupational exposures, physical agents, biological 

agents, and lifestyle factors. He stated that he has been reviewing medical records
4

and affidavits regarding exposures for workers’ compensation purposes since 2008

and has been able to provide opinions about the cause of each individual’s cancer 

based on the aforementioned information.

Dr. Singer testified that his opinions on the causes of cancer are based 

on his knowledge of the relationship between firefighting and cancer as well as 

information about each individual firefighter. He said he reviews a patient’s history 

and risk factors, and he considers the patient’s medical care, both before and after

his or her cancer diagnosis. He testified that he has relied upon journals and other 

articles from specialized cancer doctors, such as epidemiologists and toxicologists, 

regarding carcinogens to which firefighters are commonly exposed. He stated that 

he also reviewed journal articles written by retired firefighters about their exposures 

to certain chemicals throughout their careers. Dr. Singer testified that there are 

thousands of reported studies on the relationship between firefighting and cancers. 

He specifically referenced four studies in his reports, an article authored by Baris 

and Bates titled “A Cohort Mortality Study” and articles authored by Howe and 

Birch. Dr. Singer acknowledged that several studies, including the Baris and Bates

and Howe and Birch studies, found no association between firefighting and an 

increased risk of cancer. He testified that it is beyond his expertise to advise which 

study is more reliable. 

Citing his knowledge of literature and review of workers’ 

compensation files, Dr. Singer opined that firefighters are exposed to Group 1 

carcinogens in diesel fuel fumes, smoke, and soot, including PAHs (polycyclic 

aromatic hydrocarbons), PCBs (polychlorinated biphenyls), and arsenic. He 

indicated that diesel fuel alone contains carcinogens such as benzene, arsenic, 

formaldehyde, and nickel. Dr. Singer testified that the constellation of exposures 
5

increases firefighters’ risk of certain cancers, and he believes that the effects of 

smoking would be synergistic or in addition to the impact of exposure as a 

firefighter. 

Dr. Singer issued a report and offered testimony specific to Decedent. 

He reviewed multiple records pertaining to Decedent including an affidavit prepared 

prior to his death, his family medical history, records from his treating doctors, and 

any hospital records. Dr. Singer also reviewed the testimony from Lancaster and 

Hitchens. He testified that, for this case, he reviewed general literature regarding 

firefighting and cancer as well as the IARC monographs on firefighters and the list 

of carcinogens found in smoke and diesel fuel. He testified that the studies he 

reviewed support both of his opinions that there is an increased risk of prostate 

cancer as well as an increased incidence of lung cancer in firefighting. He stated 

that epidemiology was not a necessary element to determine the cause of Decedent’s 

lung cancer since Decedent had been exposed to carcinogens. Dr. Singer believed 

that, while Decedent was a heavy smoker, he was exposed to fire and its 

contaminants significantly and that both factors together would be synergistic in the 

development of Decedent’s lung cancer. See Exhibit C-8.

On cross-examination, Dr. Singer acknowledged that he did not 

mention Decedent’s smoking history or the role that cigarettes play in the etiology 

of lung cancer. He agreed that 90% of all lung cancer cases in men are related to 

smoking. He agreed that there are approximately 3,000 chemicals in cigarette smoke 

and 55 of them are recognized as Group 1 carcinogens. Dr. Singer acknowledged

that a heavy smoker such as Decedent, smoking over 67 packs a year, carries a 40-

fold increase in the risk of lung cancer. He stated that consistent with the magnitude 

of his smoking, Decedent had chronic obstructive pulmonary disease before his lung 
6

cancer diagnosis. Dr. Singer conceded that Decedent could have developed lung 

cancer just from his smoking habits.

Dr. Singer agreed that none of the articles he relied on in his report 

could conclusively find that firefighting causes cancer. Dr. Singer acknowledged 

that there are no known studies finding any relationship between firefighting and 

lung cancer that even come close to any level of statistical significance and that there 

is no published research that supports his opinion that firefighting exposures and 

cigarette smoking interact synergistically. He recognized that the articles he relied 

on failed to control for family history. Additionally, he testified that no study 

examining lung cancer in firefighters has been designed to control for cigarette 

smoking. He stated that his opinion was not based on any epidemiologic literature 

but, rather, on his personal understanding of Group 1 carcinogens and potential 

firefighters’ exposure to such chemicals. 

Employer presented the deposition of Tee Guidotti, M.D., who is board 

certified in internal, pulmonary, and occupational medicine, and trained in the fields 

of epidemiology and toxicology. Dr. Guidotti has performed and published peerreviewed research studies and has spent time investigating the relationship between 

firefighters and occupational and environmental exposures. He testified that he 

reviewed Dr. Singer’s qualifications, reports, methodology, and his first deposition. 

Dr. Guidotti opined that Dr. Singer was not qualified to interpret the studies he 

reviewed and that the meta-analysis Dr. Singer relied on did not meaningfully 

summarize the studies they incorporate. Dr. Guidotti also believed that Dr. Singer’s 

background did not support a meaningful review of the literature in this scientific 

field. Dr. Guidotti further testified that Dr. Singer did not use an appropriate 
7

methodology, or any discernable methodology at all, to determine if there was a 

relationship between firefighters and their cancer. 

Dr. Guidotti testified that age, family history, race, and ethnicity are all 

factors associated with increased risk of prostate cancer. He stated that prostate 

cancer is the most commonly diagnosed cancer in men and is not normally connected 

to occupational exposures. He explained that prostate cancer is a disease of aging 

rather than environmental influences. He added that there is no evidence to support 

a conclusion that there is a relationship between firefighting and prostate cancer. 

Employer also submitted the report on prostate cancer by Janet Stanford, Ph.D., 

which indicated that the well-established risk factors for prostate cancer include age, 

race, ethnicity, and family history. 

Employer offered testimony of Andre Haas, M.D., Ph.D., a specialist 

in interventional pulmonary and thoracic oncology. Dr. Haas regularly publishes on 

immunotherapies for thoracic malignancies and on the diagnostic and therapeutic 

components of evaluating patients with lung nodules and masses, and his practice 

specializes in differentiation and the diagnosis of lung cancers. Dr. Haas reviewed 

Decedent’s medical records, Decedent’s affidavit, and Dr. Singer’s deposition. 

Dr. Haas had no doubt that Decedent died of lung cancer. Dr. Haas 

testified that smoking increases the risk of cancer substantially and if a person 

smokes a pack a day for 30 or so years, the risk association can raise 26-fold. Dr. 

Haas was provided with evidence that Decedent smoked about 40-50 packs a year.

Dr. Haas stated that while certain epidemiologic studies reveal potential 

exposures of firefighters to carcinogens in fire smoke and diesel truck exhaust, he is 

not aware of any studies that show a statistically significant relationship between 

firefighting and lung cancer. He testified that simple exposure does not correlate to 
8

the development of cancer. Rather, he explained, it is the quantity of the exposure 

to a certain carcinogen and the amount over time that is important. Dr. Haas 

acknowledged that there is literature to suggest that smoking and asbestos exposure 

could have a synergistic effect, but he observed that nothing in Decedent’s records 

indicates any asbestos exposures. Dr. Haas opined that Decedent’s exposure to 

carcinogens in fire and fuel exhaust during his firefighting career were not 

substantial contributing factors in the development of his lung cancer. Instead, Dr. 

Haas believed that Decedent’s known tobacco usage was the primary etiologic agent 

of his lung cancer. Further, Dr. Haas testified that Decedent had adenocarcinoma, 

which is the most common type of cancer associated with smoking cigarettes.

On cross-examination, Dr. Haas agreed that lung cancer is a type of 

cancer that can be caused by exposure to Group 1 carcinogens present in smoke and 

exhaust fumes. Further, he agreed that it is possible that firefighting can cause lung 

cancer when there is substantial lasting exposure to carcinogens. He also 

acknowledged that Decedent probably came into contact with these carcinogens in 

smoke and diesel fuel emissions. In sum, Dr. Haas testified that epidemiologic 

studies have established that exposure to tobacco carcinogens significantly increases 

the risk for developing lung cancer, whereas no epidemiological data suggests that 

carcinogen exposure during firefighting was causally related to the development of 

lung cancer. 

In a December 24, 2014 decision, the WCJ accepted Claimant’s

testimony regarding the state of Decedent’s gear, his employment, and his smoking 

history as credible. She also credited Hitchens’ and Lancaster’s testimony regarding 

the firefighting procedures and practices utilized throughout Decedent’s career. The 

WCJ accepted Dr. Singer’s testimony concerning the causal relationship between 
9

Decedent’s exposure to Group 1 carcinogens and his lung cancer. The WCJ found 

that the opinions of Dr. Guidotti regarding the methods for determining general 

causation were not material in this case. Finally, the WCJ accepted the testimony of 

Dr. Haas to the extent it was consistent with Dr. Singer’s testimony. The WCJ found 

that Claimant was entitled to the presumption that his lung cancer was work-related 

pursuant to Section 108(r) and Section 301(f) of the Act.

2

 Accordingly, the WCJ 

granted the claim and fatal claim petitions. 

Employer appealed to the Board, which determined that the WCJ did 

not render any findings as to whether Decedent or Claimant complied with the notice 

provisions of the Act, nor did she render any findings as to whether the petitions 

were filed within 300 weeks of Decedent’s last exposure as required by Section 

301(f) of the Act. The Board remanded the matter with instructions to the WCJ to 

render a determination on these issues. The Board specifically instructed the WCJ 

to render findings of fact, conclusions of law, and credibility determinations as 

necessary and to reconsider her decision to grant the claim and fatal claim petitions. 

In her April 14, 2017 remand decision, the WCJ credited the testimony 

of Dr. Haas and Dr. Guidotti, noting that their credentials include experience

researching and examining epidemiologic studies. The WCJ rejected Dr. Singer’s 

testimony as not credible, explaining that he has no credentials or experience in 

researching or conducting epidemiologic studies. The WCJ also concluded that Dr. 

Singer’s testimony was not competent because he was not Decedent’s treating 

physician, he does not engage in research specifically regarding firefighters, he has 

not researched the etiology of cancer, and he could not say whether a particular 

firefighter had any exposure to a given carcinogen. The WCJ determined that Dr. 

 

2

77 P.S. §414.
10

Singer did not thoroughly consider other factors that might causally contribute to 

cancer, such as race, diet, and smoking, and that he relied on studies that he 

admittedly did not completely read. Additionally, the WCJ rejected Dr. Singer’s 

opinion that Decedent’s cancer was caused by exposure to any Group 1 carcinogen

because he had no data to support his opinion that Decedent was directly exposed to 

any Group 1 carcinogens that can cause Decedent’s particular type of cancer. 

Consequently, the WCJ concluded that Claimant failed to meet her burden to 

establish entitlement to benefits under Section 301(c),3 Section 108(r) or (o), or 

Section 301(f) of the Act,4 because she did not submit competent or credible 

evidence establishing the cause of Decedent’s cancer or the date of his last exposure.

The WCJ found that Employer’s evidence established that Decedent’s 

prostate cancer and lung cancer were not related to firefighting but were related to 

other identifiable risk factors, such as family history of prostate cancer and his 

history of heavy smoking. Therefore, the WCJ concluded that even if the 

presumption of causation afforded under Section 301 were triggered, Employer 

successfully rebutted the presumption with competent evidence. Consequently, the 

WCJ denied the claim and fatal claim petitions. 

Claimant appealed the remand decision to the Board. Relying on our 

decision in City of Philadelphia Fire Department v. Workers’ Compensation Appeal 

Board (Sladek), 144 A.3d 1011 at 1020 (Pa. Cmwlth. 2016) (Sladek I), the Board 

affirmed. 

 

3 Section 301(c) of the Act, added by the Act of July 7, 2011, 77 P.S. §411, defines the 

terms “injury” and “injury arising in the course of employment” as including occupational disease 

as defined in Section 108 of the Act, 77 P.S. §27.1.

4

77 P.S. §27.1(o), (r), and 301(f) of the Act, 77 P.S. §414. 
11

On appeal to this Court,

5 Claimant argues that the Board erred in 

affirming the WCJ’s denial of the claim and fatal claim petitions. Claimant asserted 

that: (1) the WCJ’s determinations were not supported by substantial or competent 

evidence or pertinent authority; and (2) the WCJ’s decision was not a reasoned 

decision because the credibility determinations on remand were inconsistent with 

the first decision. 

We begin our analysis with a review of the relevant statutory 

provisions. 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(r) of the Act recognizes as an occupational disease cancer 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) (emphasis added). 

Additionally, Section 301(e) of the Act establishes a “presumption 

regarding occupational disease” that applies to any occupational disease. The 

section 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 

presumption shall not be conclusive.

Added by the Act of October 17, 1972, P.L. 930, 77 P.S. §413 (emphasis added). A 

claimant who suffers a disease identified in Section 108 of the Act does not have to 

prove that the occupational disease was caused by workplace exposure. 

 

5 Our scope of review is limited to determining whether necessary findings were supported 

by substantial evidence, whether an error of law was committed, or whether constitutional rights 

were violated. Minicozzi v. Workers’ Compensation Appeal Board (Indus. Metal Planting, Inc.), 

873 A.2d 25, 28 n.1 (Pa. Cmwlth. 2005).
12

Section 301(f) of the Act states in part:

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. 

Added by the Act of October 17, 1972, P.L. 930, 77 P.S. §414. Thus, in order to 

demonstrate that a firefighter’s cancer is an occupational disease compensable under 

the Act, the firefighter must show that his type of cancer is “caused by exposure to 

a known carcinogen which is recognized as a Group 1 carcinogen.” 77 P.S. §27.1(r). 

If a firefighter establishes that his type of cancer is an occupational disease, he may 

avail himself of the statutory presumption in Section 301(f) of the Act, provided that 

he filed his claim within 300 weeks of his last day of employment. The statutory 

presumption relieves the firefighter of the need to prove that his cancer was caused 

by his workplace exposure and not another cause. 77 P.S. §413. An employer may 

rebut this presumption through substantial competent evidence that shows that the 

firefighter’s cancer was not caused by the firefighter’s occupation. 77 P.S. §414. 

This Court first interpreted Section 108(r) of the Act in Sladek I. In that 

case, we rejected the Board’s interpretation of Section 108(r) to mean that a 

firefighter’s cancer is presumed work-related if the firefighter was exposed to a 

Group 1 carcinogen at work, regardless of whether the firefighter’s cancer is a type 

of cancer known to be caused by exposure to Group 1 carcinogens. Instead, we 

concluded in Sladek I that Section 108(r) of the Act requires the firefighter to show 

that the Group 1 carcinogens to which he was exposed have been shown to cause the 
13

type of cancer suffered by the firefighter. 

Subsequently, however, our Supreme Court reversed our decision and 

remanded the matter for further proceedings. City of Philadelphia Fire Department 

v. Workers’ Compensation Appeal Board (Sladek), ___ A.3d ___ (Pa., No 13 EAP 

2017, filed October 17, 2018) (Sladek II). In doing so, the Court held that in order 

for a claimant to establish that he or she has an “occupational disease” as defined in 

Section 108(r) of the Act, a claimant must initially demonstrate only that his or her 

cancer is a type of cancer that is capable of being caused by exposure to a known 

IARC Group I carcinogen. The Court reasoned as follows:

The express language of Section 108(r), namely that the 

claimant has a “cancer . . . which is caused by exposure to 

a known (Group 1) carcinogen” clearly imposes an initial 

burden of causation on the claimant. Importantly, 

however, the provision only requires the claimant to 

establish a general causative link between the claimant's 

type of cancer and a Group 1 carcinogen. In other words, 

the claimant must produce evidence that it is possible that 

the carcinogen in question caused the type of cancer with 

which the claimant is afflicted. It does not require the 

claimant to prove that the identified Group 1 carcinogen 

actually caused claimant's cancer. Section 108(r)

embodies a legislative acknowledgement that firefighting 

is a dangerous occupation that routinely exposes 

firefighters to Group 1 carcinogens that are known to 

cause various types of cancers. The “general causation”

requirement under Section 108(r) constitutes a recognition 

that different types of cancers have different etiologies and 

it weeds out claims for compensation for cancers with no 

known link to Group 1 carcinogens. The burden imposed 

by Section 108(r) is not a heavy burden.

Sladek II, ___ A.3d at ____ (slip op. at 17-18) (emphasis in original) (footnotes 

omitted). 
14

Additionally, in Sladek II the Court held that “epidemiological evidence 

is clearly relevant and useful in demonstrating general causation.” Id., ___ A.3d at 

___, slip op. at 18. However, while the Court held that a claimant may rely on 

epidemiological evidence to meet his or her initial burden and trigger the statutory 

presumption of compensability, the Court also concluded that such evidence is not 

sufficient for an employer to rebut the presumption. Id., ___ A.3d at ___, slip op. at 

19-20.

In this appeal, Claimant argues that the WCJ’s conclusion that she did 

not meet her initial burden and failed to establish entitlement to the presumption is 

not supported by substantial competent evidence. Additionally, Claimant argues that 

Employer failed to rebut the presumption to which she was entitled. 

In assessing the record evidence in this case, the Board and the WCJ 

relied on our analysis in Sladek I, which is no longer controlling. Consequently, we 

are compelled to vacate and remand the Board’s decision. Because the record 

includes evidence presented by both parties that is relevant under the Supreme 

Court’s analysis in Sladek II, the Board is to remand the matter to the WCJ for new 

findings and conclusions consistent with that opinion.

6

MICHAEL H. WOJCIK, Judge

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

 

6 Claimant also contends that the WCJ failed to issue a reasoned decision because her 

credibility determinations were inconsistent with her 2014 decision and order. Section 422(a) of 

the Act requires the WCJ to issue a reasoned decision. 77 P.S. §834. A reasoned decision is one 

that allows for adequate appellate review without further elucidation. Daniels v. Workers’ 

Compensation Appeal Board (Tristate Transport), 828 A.2d 1043, 1052 (Pa. 2003). A WCJ is not 

required to reach the same result on remand and is generally free to revise any credibility 

determinations. Teter v. Workers’ Compensation Appeal Board (Pinnacle Health System), 886 

A.2d 721, 723 (Pa. Cmwlth. 2005). 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Vincent Regan, :

:

Petitioner :

:

v. : No. 141 C.D. 2018

: 

Workers' Compensation Appeal :

Board (City of Philadelphia), :

:

Respondent :

O R D E R

AND NOW, this 18th day of January, 2019, the order of the Workers’ 

Compensation Appeal Board, dated January 10, 2018, is VACATED, and this matter 

is REMANDED to the Workers’ Compensation Appeal Board for further remand to 

the workers’ compensation judge in accordance with the foregoing opinion. 

Jurisdiction relinquished.

__________________________________

MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Vincent Regan, :

Petitioner :

:

v. : No. 141 C.D. 2018

: Submitted: June 15, 2018 

Workers’ Compensation Appeal :

Board (City of Philadelphia), :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

DISSENTING OPINION

BY JUDGE BROBSON FILED: January 18, 2019

Although I recognize the Pennsylvania Supreme Court’s decision in 

City of Philadelphia Fire Department v. Workers’ Compensation Appeal Board 

(Sladek), 195 A.3d 197 (Pa. 2018) (Sladek II), as controlling for purposes of the 

proper construction of Section 108(r) of the Workers’ Compensation Act (Act),1

 

1 Act of June 2, 1915, P.L. 736, as amended, added by the Act of October 17, 1972, 

P.L. 930, 77 P.S. § 27.1(r). Section 108 of the Act lists a number of occupational diseases that 

constitute a compensable injury under the Act. Among them is “[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].” (Emphasis added.) A substance or 

exposure is considered carcinogenic based on its propensity to cause cancer in humans. The IARC, 

which is part of the World Health Organization, classifies substances and exposures based on their 

cancer-causing potential. Group 1 carcinogens are those substances and exposures that the IARC 

considers carcinogenic to humans. Group 2A, by contrast, includes substances and exposures 

considered as “probably” carcinogenic. Group 2B includes substances and exposures that are 

“possibly” carcinogenic to humans. Group 3 includes substances and exposures that are 
PKB-2

I find it difficult to distinguish between the Supreme Court construction and that of 

this Court in City of Philadelphia Fire Department v. Workers’ Compensation 

Appeal Board (Sladek), 144 A.3d 1011 (Pa. Cmwlth. 2016) (Sladek I), which the 

Supreme Court reversed in Sladek II. See Sladek II, 195 A.3d at 212-13 

(Saylor, C.J., dissenting) (rejecting Claimant’s false premise that Commonwealth 

Court required claimant to prove specific causation). Accordingly, I would analyze 

and resolve this appeal based on a harmonious reading of the two opinions.

Workplace causation is required in order for any disabling injury to be 

compensable under the Act. See, e.g., Whitmoyer v. Workers’ Comp. Appeal Bd.

(Mountain Country Meats), 186 A.3d 947, 948 (Pa. 2018) (“The [Act] makes an 

employer liable for paying the disability benefits and medical expenses of an 

employee who sustains an injury in the course of his or her employment.”). This is 

true regardless of whether the disabling injury is acute or develops over a prolonged 

period of time, as in the case of an occupational disease. The burden falls on the 

claimant to establish a causal relationship between his employment and the disabling 

injury. See, e.g., Cardyn v. Workers’ Comp. Appeal Bd. (Heppenstall), 534 A.2d 

1389, 1390 (Pa. 1987). Section 108(r) of the Act clearly incorporates this causation 

 

“unclassifiable” as to carcinogenicity in humans. Finally, Group 4 includes substances and 

exposures that are “probably not” carcinogenic to humans. 

(https://www.cancer.org/cancer/cancer-causes/general-info/known-and-probable-humancarcinogens.html) (last visited Dec. 28, 2018).

I also wish to emphasize that Section 108(r) of the Act does not inquire as to whether 

firefighting, as an occupation, is a Group 1 carcinogen. In her findings of fact in this case, the 

Workers’ Compensation Judge (WCJ) noted that the IARC has categorized the profession of 

firefighting as a Group 2B, not Group 1, carcinogen. Such a finding, however, is irrelevant. The 

text of the Section 108(r) expressly allows firefighters to pursue benefits under the Act to the extent 

they suffer from a cancer linked to a Group 1 carcinogen, regardless of whether the profession 

itself is classified as such.
PKB-3

aspect to compensation under the Act, as it commands that cancer suffered by a 

firefighter is an occupational disease under the Act only where the cancer “is caused 

by” exposure to a Group 1 carcinogen.

With respect to occupational diseases generally, Section 301(e) of the 

Act2 provides for a rebuttable evidentiary presumption of workplace causation where 

the claimant “was employed in any occupation or industry in which the occupational 

disease is a hazard.” The Act, however, includes a specific evidentiary presumption 

for firefighters who suffer from cancer. Under Section 301(f) of the Act,3 workplace 

causation and, thus, compensation are presumed where the firefighter 

claimant (a) “served four or more years in continuous firefighting duties,” (b) “can 

establish direct exposure to a carcinogen referred to in [S]ection 108(r) [of the Act] 

relating to cancer by a firefighter,” and (c) “successfully passed a physical 

examination prior to asserting a claim . . . or prior to engaging in firefighting duties 

and the examination failed to reveal any evidence of the condition of cancer.” The 

employer may rebut this presumption with “substantial competent evidence that 

shows that the firefighter’s cancer was not caused by the occupation of firefighting.” 

Section 301(f) of the Act. 

With respect to causation, in Sladek I, this Court held, inter alia, that a 

claimant firefighter, seeking the benefit of the evidentiary presumption of 

Section 301(f) of the Act, need not establish actual causation—i.e., that the 

claimant’s firefighting service actually caused the claimant’s cancer. Rather, the 

claimant need only show “direct exposure” to a Group 1 carcinogen in the course of 

firefighting that is linked to the type of cancer from which the claimant suffers. In 

 

2 Added by the Act of October 17, 1972, P.L. 930, 77 P.S. § 413. 

3 Added by the Act of July 7, 2011, P.L. 251, 77 P.S. § 414. 
PKB-4

this regard, we held only that a claimant needed to establish a general causative link 

between a carcinogen to which he was exposed and the cancer from which he suffers. 

We explained:

It was incumbent upon [the c]laimant 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. 

Sladek I, 144 A.3d at 1021-22 (emphasis added). Nowhere in Sladek I did this Court 

hold that the claimant must go a step further and “prove that the identified Group 1 

carcinogen actually caused [the] claimant’s cancer.” Sladek II, 195 A.3d at 208

(emphasis removed).

I read the Supreme Court’s decision in Sladek II as requiring nothing 

more and nothing less. First, the claimant firefighter must establish that he or she 

has an “occupational disease,” as defined in Section 108(r) of the Act. The Supreme 

Court held that, in order to do so, the claimant need only “establish a general 

causative link between the claimant’s type of cancer and a Group 1 carcinogen. In 

other words, the claimant must produce evidence that it is possible that the 

carcinogen in question caused the type of cancer with which the claimant is 

afflicted.” Id. (emphasis added) (original emphasis removed). As the Supreme 

Court recognized in Sladek II, the claimant may do so through the use of 

epidemiological evidence. Id. 

Once the claimant meets this threshold burden, in order to take 

advantage of the presumption of causation in Section 301(f) of the Act, the claimant 

firefighter must establish each of the elements set forth above, including “exposure” 

to the carcinogen in question. Section 301(f) of the Act also requires that the 

presumption only applies “to claims made within the first three hundred weeks” after 
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the last date of claimant’s employment in which he was exposed to the carcinogen 

in question. If the presumption is triggered, the burden under Section 301(f) shifts 

to the employer to rebut the presumption by showing “that the firefighter’s cancer 

was not caused by the occupation of firefighting.” In terms of the employer’s 

evidentiary burden on this point, the Supreme Court opined:

[T]he employer may not rebut the evidentiary presumption 

with generalized epidemiological evidence that [the] 

claimant has a type of cancer that may (or may not) 

possibly be caused by a Group 1 carcinogen. As indicated, 

epidemiological studies merely identify statistical 

associations between disease and potentially causative 

agents in broad populations, and thus do not provide any 

evidence demonstrating the specific cause of a particular 

claimant’s cancer. To reach the stage of the proceedings 

at which the employer attempts to rebut the presumption 

of employment-related causation, the claimant has already 

carried his or her Section 108(r) burden of proof that his 

or her cancer is of a type that may be caused by a Group 1 

carcinogen. The employer may not rebut the evidentiary 

presumption merely by revisiting this determination and 

challenging its accuracy. At the rebuttal stage, the issue 

relates not to “types of cancer” relative to potential 

carcinogens, but rather requires proof of [sic] that the 

cancer from which the claimant suffers was not caused by 

his occupation as a firefighter.

Id. at 209-10 (footnote omitted) (emphasis added).

The majority vacates the decision of the Workers’ Compensation 

Appeal Board (Board) in this matter and remands the matter to the Board, with a 

directive that the Board remand the matter to the WCJ for new findings and 

conclusions in light of Sladek II. Respectfully, for the reasons set forth below, I 

would reverse the Board’s decision, which affirmed the WCJ’s conclusion that 

Claimant failed to meet her initial burden under Section 108(r) of the Act. I would, 

nonetheless, remand the matter to the WCJ for further consideration on whether 
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Claimant established all of the statutory elements for the presumption of causation 

under Section 301(f) of the Act and, if so, whether the City of Philadelphia 

(Employer) rebutted that presumption under the standard announced by the Supreme 

Court in Sladek II.

The record in this case unquestionably establishes that Theresa Regan

(Claimant) met the initial hurdle of establishing that her husband’s (Decedent) 

diagnosis and death from lung cancer fall within the definition of “occupational 

disease” under Section 108(r) of the Act. As the majority notes, Barry Singer, M.D., 

Claimant’s expert witness, and Andre Haas, M.D., Ph.D., Employer’s expert 

witness, agreed that lung cancer is linked to exposure to Group 1 carcinogens found 

in diesel fuel fumes, smoke, and soot. Given the fact that the WCJ expressly credited 

Dr. Haas’s testimony over that of Dr. Singer’s, I highlight the following testimony 

from Dr. Haas:

Q. So, to cut right to it, in your opinion, there is no 

doubt that lung cancer is the type of cancer that can be 

caused by IARC Group 1 carcinogens; is that correct?

A. Correct.

Q. There’s also no doubt that [Decedent] would 

come in contact with IARC --- come in direct contact with 

IARC Group 1 carcinogens in smoke if he did not have a 

mask on?

A. That’s probably correct, yes.

Q. And diesel fuel emissions is a direct --- is a 

IARC Group 1 carcinogen as of, I think, July 2012; 

correct?

A. Correct.

Q. And there’s no doubt, from what you reviewed, 

that he had daily exposure to diesel fuel emissions; 

correct?

A. Correct.
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Q. So throughout his career, from start to finish, 

there’s no doubt that he had direct exposure with IARC 

Group 1 carcinogens that cause lung cancer?

A. Correct.

(Reproduced Record at 566-67.) This expert testimony, credited by the WCJ, is 

sufficient to bring Decedent’s lung cancer within the definition of an occupational 

disease under Section 108(r) of the Act, as it creates a general causative link between 

lung cancer and exposure to certain Group 1 carcinogens. Sladek I and Sladek II.

Turning to the proof elements required under Section 301(f) of the Act, 

it appears undisputed that, throughout the course of his career, Decedent was in fact 

exposed to these lung cancer-causing carcinogens. It also appears undisputed that 

the claim petitions in this matter were filed within 300 weeks of Decedent’s last 

exposure. Decedent served as a firefighter for the City for 34 years, well in excess 

of the four years of continuous service required under Section 301(f) of the Act. 

Nonetheless, I see nothing in the Board’s opinion, the WCJ’s determination, or the 

parties’ briefs on appeal to address the final proof element under Section 301(f), that 

being a physical examination that reveals no evidence of lung cancer prior to either 

the filing of the claim in this matter or Decedent engaging in firefighting duties. 

Accordingly, it would be inappropriate for this Court on appeal to render any 

findings with respect to this aspect of the Section 301(f) presumption. This is a task 

for the WCJ.

On remand, if Claimant can satisfy this final proof element under 

Section 301(f) of the Act, then Claimant is entitled to the evidentiary presumption 

that Decedent’s lung cancer diagnosis and death are work-related and, therefore, 

covered under the Act. The burden would then shift to Employer to show by 

substantial competent evidence that Decedent’s lung cancer “was not caused by the 

occupation of firefighting.” Given the substantial uncertainty and confusion in this 
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area of the law during the pendency of this matter, the WCJ should reopen the record 

to take additional evidence on these questions in light of Sladek II.

 

P. KEVIN BROBSON, Judge