IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Wayne Deloatch, :

Petitioner :

:

v. : No. 1684 C.D. 2018

: Argued: November 14, 2019

Workers’ Compensation Appeal :

Board (City of Philadelphia), :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY JUDGE BROBSON FILED: January 3, 2020

Wayne Deloatch (Claimant) petitions for review of an order of the 

Workers’ Compensation Appeal Board (Board), dated December 11, 2018. The 

Board reversed the decision and order of a Workers’ Compensation Judge (WCJ), 

which granted Claimant’s claim petition for benefits under Sections 108(r) 

and 301(f) of the Workers’ Compensation Act (Act).1 The sole issue before this 

Court is whether Claimant has established that he developed a compensable 

occupational disease in the form of lung cancer as provided by Sections 108(r) 

and 301(f) of the Act. For the reasons that follow, we reverse.

I. BACKGROUND

Claimant worked as a firefighter for the City of Philadelphia 

(Employer) from December 12, 1988, until he retired on November 1, 2008. 

 

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

930 & the Act of July 27, 2011, P.L. 251, 77 P.S. §§ 27.1(r), 414, respectively.
2

(Certified Record (C.R.), Item No. 6 at 3.) In 2011, Daniel Stermand, M.D., 

diagnosed Claimant with lung cancer, for which Claimant later received treatment. 

(Reproduced Record (R.R.) at 20-22, 88.)

2

On December 12, 2012, Claimant filed a claim petition alleging that he 

suffered from non-small cell lung cancer resulting from direct exposure to IARC3

Group 1 carcinogens while working as a firefighter with Employer. (C.R., Item 

No. 2 at 2.) Claimant sought payment of medical bills related to treatment of his 

non-small cell lung cancer. (Id.) Employer, thereafter, filed an answer denying all 

allegations in the claim petition. (C.R., Item No. 4.) In support of his claim petition, 

Claimant provided his own deposition testimony, a medical report from Virginia 

Weaver, M.D., as well as a medical report from and deposition testimony of 

Barry L. Singer, M.D. In opposition to Claimant’s claim petition, Employer 

presented the deposition testimony of Tee Guidotti, M.D., M.P.H., as well as a 

medical report from Howard Sandler, M.D.

A. Summary of Evidence Presented 

1. Claimant’s Deposition Testimony

Claimant testified at a deposition on January 29, 2013. According to 

Claimant, he worked for Employer as a firefighter for approximately twenty years. 

(R.R. at 6.) Employer gave Claimant a physical examination prior to hiring him. As 

a result of the examination, Employer did not place any restrictions on Claimant’s

ability to work. (Id.) Further, Claimant was never diagnosed with cancer at any 

 

2 The reproduced record in this matter follows a numbering format of “R0001, R0002,” 

etc., and is not in compliance with Pennsylvania Rule of Appellate Procedure 2173, which directs 

the pages of the reproduced record to be numbered using Arabic numerals followed by a lower 

case letter “a”—i.e., “1a, 2a, 3a,” etc. When citing to the page numbers of the reproduced record 

herein we shall omit the “R” and any zeros preceding the page number. 

3

IARC refers to the International Agency for Research on Cancer. 
3

point during his employment. (Id. at 7.) Over the course of his career, Claimant 

worked at three different fire stations. None of these stations contained a diesel fuel 

emissions capture system. (Id. at 10.) At the beginning and end of each shift, 

firefighters were required to start the fire engine trucks and leave them running for 

approximately 15-20 minutes. (Id. at 10-11.) Claimant, therefore, saw and smelled 

diesel fuel emissions at each shift during the twenty years of his employment. (Id. 

at 10.) The ceilings and walls in each fire station were covered with soot and grime. 

(Id. at 12.) 

During Claimant’s firefighting career, he fought approximately 

200-300 fires, including building, house, car, dumpster, trash, grass, and field fires, 

which exposed him to smoke. (Id. at 13, 14-15, 18.) Claimant sometimes wore a 

self-contained breathing apparatus (SCBA) when responding to a fire. (Id. at 16.) 

SCBAs provide the wearer with clean air for approximately 20-30 minutes 

depending on the individual and the amount of work involved. (Id.) According to 

Claimant, Employer did not fit-test the SCBAs. (Id.) Claimant did not use the 

SCBA during exterior firefighting—i.e., outdoor firefighting—or overhaul, which 

entailed “ripping of walls, ceilings, searching for any hidden fire and extinguishing 

that if it’s visible.” (Id. at 15, 17.) After exposure to each fire incident, Claimant’s 

body would be coated in soot, and Claimant would often find soot in his nasal 

secretions up to a week after exposure. (Id. at 19.) Claimant further testified that he 

stopped smoking cigarettes in 2011, but had a 30 to 35-year-long smoking history. 

(Id. at 25.) During that period, Claimant recalled smoking only one pack of 

cigarettes per week. (Id.) Firefighters were permitted to smoke in the fire stations, 

and Claimant worked with smokers during his career as a firefighter. (Id. at 26.) 
4

2. Medical Report from Virginia Weaver, M.D.

Claimant submitted a medical report from Dr. Weaver, who is board 

certified in internal medicine and occupational medicine. (Id. at 186.) Dr. Weaver 

opined that firefighters are exposed to IARC Group 1 carcinogens in the course of 

their work, many of which are found in smoke from burning structures, including 

buildings and automobiles. (Id. at 179.) She further stated that although firefighters 

use protective equipment, the protection is incomplete because firefighters routinely 

observe black soot on their skin and in nasal discharges after major fires. (Id.) 

Further, until recently, most firefighters routinely removed their respiratory 

protection during the overhaul process. (Id.) Dr. Weaver did not provide any 

specific testimony relating to the causal relationship between a firefighter’s exposure 

to certain IARC Group 1 carcinogens and the development of lung cancer.

3. Deposition Testimony of Barry L. Singer, M.D. 

Claimant submitted the deposition testimony of Dr. Singer, who is 

board certified in internal medicine, hematology, and oncology. (Id. at 92.) 

Dr. Singer is not a specialist in occupational medicine, toxicology, or epidemiology.

(Id. at 251-54.) Dr. Singer’s practice is mainly patient care, and he does not engage 

in primary research nor has he ever published any materials on the etiology of cancer. 

(Id. at 256.) Since 2008, Dr. Singer has been reviewing cases involving workers’ 

compensation claims for cancer. (Id. at 249.) In evaluating cases involving 

firefighters, Dr. Singer reviews affidavits concerning each firefighter’s exposures 

and medical and family history. (Id. at 249-50.) Dr. Singer has not performed 

physical evaluations on any of the firefighters for whom he was asked to provide 

medical opinions; however, by reviewing the IARC monographs, academic 

materials concerning firefighters’ exposure to carcinogens, medical records, and 

family history, Dr. Singer has been able to provide opinions about the cause of each 
5

firefighter’s cancer. (Id. at 250.) Dr. Singer’s methodology for forming his opinion 

in these cases is called “differential diagnosis,” which requires that Dr. Singer list 

all causal possibilities for a patient’s diagnosis, rule out certain possibilities, and 

eventually arrive at a final or most probable diagnosis. (Id. at 283.) Differential 

diagnosis, Dr. Singer opined, is the only viable method for evaluating firefighter 

cancer cases. (Id. at 283-84.) According to Dr. Singer, firefighters are exposed to 

numerous IARC Group 1 carcinogens, such as arsenic, which is found in diesel 

exhaust and smoke. (Id. at 285.) 

Dr. Singer admitted that there are carcinogens in cigarette smoke that 

most likely cause changes in lung tissue, resulting in formation of cancerous cells. 

(Id. at 310.) In fact, Dr. Singer agreed that approximately sixty of the one hundred 

and twenty carcinogens present in IARC’s Group 1 carcinogen list are found in 

cigarette smoke. (Id. at 368.) Dr. Singer also agreed that an individual who smokes 

eighty packs of cigarettes per year has a 400-fold increase in the risk of lung cancer, 

as well as cancer affecting the head and neck. (Id. at 310.) With respect to 

firefighters’ exposure to carcinogens during employment, Dr. Singer agreed with the 

IARC’s conclusion that (1) less than half of all responses to fires are, in fact, 

fire-related; (2) of those responses that are fire-related, less than half involve 

observable flames; and (3) a very small percentage of firefighters’ time—i.e., one to 

two percent—is spent fighting fires. (Id. at 366-67.) Dr. Singer also agreed that 

SCBAs are designed to reduce exposure to particles by one thousand percent. (Id. 

at 368.) 

4. Medical Report from Barry L. Singer, M.D.

Claimant also submitted a medical report from Dr. Singer. In that 

report, Dr. Singer opined that firefighters are routinely exposed to “many known or 

suspected lung carcinogens.” (Id. at 89.) Dr. Singer discussed studies that found an 
6

increased risk for lung cancer in the firefighting profession. (Id.) Thereafter, Dr. 

Singer concluded that, based on Claimant’s medical records, Claimant’s exposure to 

carcinogens while working for Employer was a “substantial contributing factor in 

the development of his lung cancer.” (Id.) 

5. Deposition Testimony of Tee Guidotti, M.D., M.P.H.

In opposition, Employer submitted the deposition testimony of Dr. 

Guidotti, who is board certified in internal medicine, pulmonary medicine, and 

occupational medicine. (Id. at 1109.) Dr. Guidotti also has a non-medical diploma 

in toxicology, is trained in epidemiology, and has investigated the potential 

relationships between occupational and environmental exposures associated with 

firefighting and cancer. (Id. at 917-18, 922-23.) Dr. Guidotti reviewed a subset of 

Dr. Singer’s reports involving firefighters and some of his deposition testimony in 

firefighter cancer cases in order to determine the appropriateness of Dr. Singer’s 

methodology and the validity of his opinions. (Id. at 927-28.) With respect to 

specific firefighters, their diagnoses, or cancer exposure, Dr. Guidotti offered no 

opinion. (Id. at 1055-56.)

Concerning Dr. Singer’s methodology, Dr. Guidotti opined that he

could not discern what, if any, methodology Dr. Singer used to form his opinions. 

(Id. at 929.) In response to a question on whether Dr. Singer’s method of drawing 

inferences from the volume of support for, as opposed to against, a proposition was 

an appropriate method for determining the sufficiency of epidemiological studies, 

Dr. Guidotti answered in the negative. (Id. at 933.) Dr. Guidotti also opined that 

Dr. Singer had no expertise on how general causation is proved. (Id.) Further, where 

Dr. Singer’s use of meta-analyses is concerned, Dr. Guidotti opined that one should 

not rely on meta-analyses to reach a conclusion on cause and effect because 

meta-analyses do not summarize all the studies addressed in any meaningful sense
7

nor do they address the nuance or bias of any given study. (Id. at 937-38.) 

Dr. Guidotti agreed that the IARC is the authoritative world body in recognizing 

carcinogens and that the IARC has characterized firefighting as possibly 

carcinogenic. (Id. at 983, 1012.) Dr. Guidotti opined, however, that smoking 

cigarettes may add to the risk of exposure to carcinogens that are similar to those 

firefighters could be exposed to during employment. (Id. at 991-92.) 

6. Medical Report from Howard Sandler, M.D.

Employer submitted a medical report of Dr. Sandler, a licensed 

physician specializing in occupational and environmental medicine. (Id. at 881.) 

Dr. Sandler noted that the IARC has found sufficient evidence of a causal link 

between diesel exhaust and lung cancer. (Id. at 891.) Dr. Sandler opined, however,

that Dr. Singer provided “no scientifically-reliable methodology” that could have 

led Dr. Singer to conclude that there is a causal link between firefighting and lung 

cancer. (Id.) With respect to Claimant’s smoking history, Dr. Sandler noted that in 

one instance Claimant’s records indicate that he smoked cigarettes for forty-five 

years. (Id. at 883.) Claimant’s medical records also indicate that Claimant reduced 

his smoking habit from a peak of one pack per day. (Id. at 884.) These medical 

records stand in contrast to Claimant’s testimony that he smoked cigarettes for 

approximately 30-35 years and only smoked one pack per week, and the records 

indicate a significantly higher level of smoking. (Id.) With respect to Claimant’s 

specific case, Dr. Sandler opined that epidemiologic evidence does not support the 

conclusion that exposure to arsenic, asbestos, benzene, and other IARC Group 1 

carcinogens was a substantial factor in causing Claimant’s lung cancer. (Id. at 894.) 

Accordingly, Dr. Sandler opined that Claimant’s lung cancer was not caused by 

occupational exposure to carcinogens, but most likely by Claimant’s personal risk 

factors—specifically, his smoking history. (Id. at 893-94.) 
8

B. First WCJ Decision

By decision and order circulated on October 31, 2014 (First WCJ 

Decision), the WCJ dismissed the claim petition. (C.R., Item No. 6.) In so doing, 

the WCJ rejected Claimant’s testimony regarding his history of cigarette smoking as 

less than credible but otherwise found Claimant’s testimony credible but not 

persuasive or competent as to the medical issue of causation. (Id., Finding of Fact 

(F.F.) No. 16.) The WCJ also accepted that Claimant was exposed to IARC Group 1 

carcinogens in the course of his career as a firefighter and paramedic and noted that 

Employer did not present evidence to the contrary. (Id., F.F. No. 18.) The WCJ, 

however, found that Claimant is not entitled to the presumption of Section 301(f) of 

the Act that his lung cancer arose during the course of his employment as a 

firefighter. (Id., F.F. No. 19.) Rather, Claimant’s claim was subject to general 

causation principles. (Id., F.F. No. 20.) As to the credibility of the other witnesses, 

the WCJ issued the following findings of fact:

21. This Judge rejects as neither credible nor competent 

Dr. Singer’s opinion that exposure to Group [1] 

carcinogens in the course of his employment as a 

firefighter was a substantial contributing factor in causing 

Claimant’s non-small cell lung cancer. In so finding, this 

Judge notes the following: 

. . . .

d. Dr. Singer conceded that the number one cause 

of lung cancer is cigarette smoking. 

e. Dr. Singer has never designed a study protocol, 

is not engaged in primary cancer research, and has 

never published on the etiology of cancer or on 

firefighters. 

f. Dr. Singer is not an expert in occupational disease 

medicine, toxicology or epidemiology. He is an 

oncologist whose career focus has been the 

detection and treatment of cancer, not investigating 

the cause of cancer. 
9

g. He did not know the methodologies to use in 

attempting to link a given exposure to a given 

cancer, used by the [Environmental Protection 

Agency], the Veterans Administration, the IARC[,]

the National Academy of Sciences, the American 

Medical Association and by the Federal Courts. He 

later reviewed the methodology for providing an 

opinion set forth in Table 3-2 of the American 

Medical Association’s Guides to the Evaluation of 

Causation and testified that his methodology 

followed the steps set forth in that document. This 

WCJ finds that this testimony was not persuasive, 

as he acknowledged that he was not aware of the 

existence of the American Medical Association’s 

Guides to the Evaluation of Causation prior to the

December 21, 2012 deposition and that these 

excerpts were provided to him in between 

December 21, 2012[,] and January 14, 2013. 

h. He was not able to cite authority for his assertion 

that the differential diagnosis methodology is the 

accepted methodology for determining a potential 

causative relationship between a given agent and a 

given cancer. 

. . . . 

22. This Judge accepts the opinions of Dr. Sandler and Dr. 

Guidotti as more credible, competent, and persuasive than 

the opinion of Dr. [Singer] for the following reasons: 

. . . .

d. The discussion by Dr. Sandler and Dr. Guidotti 

with respect to causation determinations and 

methodology are consistent one with the other. 

Both physicians articulated a detailed familiarity 

with published epidemiologic data concerning 

cancer risks in firefighters.

(Id., F.F. Nos. 21-22.) Based on the above, the WCJ found “that the credible, 

competent evidence of record fails to establish that Claimant’s non-small cell lung 

cancer was caused by his work as a firefighter.” (Id., F.F. No. 23.) 
10

C. First Board Decision

Claimant appealed the First WCJ Decision to the Board, which reversed

and remanded.4 (C.R., Item No. 9.) In coming to its decision to reverse the WCJ’s 

decision, the Board concluded that Claimant established entitlement to the statutory

presumption and that Employer failed to provide evidence sufficient to rebut the

presumption. (Id. at 10.) The Board remanded the matter to the WCJ to make 

findings of fact and conclusions of law regarding an award and any recoverable lien, 

taking into consideration a relevant subrogation agreement. (Id. at 11.)

D. Second WCJ Decision

On remand, the WCJ granted Claimant’s claim petition and awarded 

medical benefits—as directed by the Board—and issued new findings of fact and 

conclusions of law regarding only the amount of the award and the subrogation lien. 

(C.R., Item No. 13.) The WCJ included a sentence in the remand decision (Second 

WCJ Decision) incorporating a majority of the findings of fact set forth in the First 

WCJ Decision, which included summaries of the testimony and medical reports 

presented, along with credibility determinations relating to causation. (Id. at 4, F.F. 

No. 1.) The WCJ also issued the following new finding of fact concerning the 

Board’s discussion of the medical evidence presented:

2. With respect to credibility determinations 

regarding the medical evidence of record in the 

October 31, 2014 Decision, this Judge notes that the 

[Board] determined that Dr. Sandler’s opinion “lacks the 

certainty necessary to overcome the presumption that 

Claimant’s cancer was caused by firefighting. . . . [T]he 

burden never shifted back to Claimant, and any 

 

4 We note that the Board issued its first decision prior to this Court’s decision in City of 

Philadelphia Fire Department v. Workers’ Compensation Appeal Board (Sladek), 144 A.3d 1011 

(Pa. Cmwlth. 2016) (en banc) (Sladek I), and our Supreme Court’s decision reversing and 

remanding Sladek I in City of Philadelphia Fire Department v. Workers’ Compensation Appeal 

Board (Sladek), 195 A.3d 197 (Pa. 2018) (Sladek II).
11

shortcomings, found by the WCJ, in Dr. Singer’s 

testimony on the issue of causation do not impact 

Claimant’s entitlement to relief.” (WCAB Decision, 

p. 11 of 12[.])

(Second WCJ Decision at 4, F.F. No. 2.) The WCJ concluded that Claimant met his 

burden to prove that he had a compensable injury under Sections 108(r) and 301(f) 

of the Act. (Id. at 5.) Employer appealed the Second WCJ Decision to the Board, 

which reversed based on its application of Sladek II.

II. DISCUSSION

On appeal,5 Claimant argues that the Board committed an error of law 

by reversing the Second WCJ Decision. Specifically, Claimant contends that he was 

entitled to the statutory presumption under Section 301(f) of the Act and that 

Employer failed to rebut that presumption. Employer responds by arguing that the 

Board correctly concluded that Claimant did not establish that he suffered from an 

occupational disease under Section 108(r) of the Act and, therefore, failed to 

establish his entitlement to the evidentiary presumption provided by 

Section 301(f) of the Act.

A. Occupational Disease Claims Under the Act6

1. Relevant Statutory Provisions

Section 301(c)(2) of the Act, as amended, 77 P.S. § 411(2), provides 

that a compensable “injury” includes any “occupational disease as defined in 

[S]ection 108 of this [A]ct.” In turn, Section 108 of the Act identifies a number of 

occupational diseases, including cancer, which is a compensable injury when it is 

 

5 This Court’s review is limited to a determination of whether an error of law was 

committed, whether findings of fact are supported by substantial evidence, or whether 

constitutional rights were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. 

§ 704. 

6 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710. 
12

“caused by exposure to a known carcinogen which is recognized as a

Group 1 carcinogen by [IARC].”

Section 301(f) of the Act establishes a special evidentiary presumption 

that applies when the employee is a firefighter who suffers from an occupational 

disease in the form of cancer. Section 301(f) provides, in relevant 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 

[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 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. . . . 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 

[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 presumption provided for 

under this subsection shall only apply to claims made 

within the first three hundred weeks.

77 P.S. § 414 (emphasis added). In sum, to establish that a firefighter’s cancer is an 

occupational disease compensable under the Act, the firefighter must show that his 

type of cancer is one “caused by exposure to a known carcinogen which is 

recognized as a Group 1 carcinogen.” 77 P.S. § 27.1(r). Once a firefighter 

establishes that his type of cancer is an occupational disease, he may take advantage 
13

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

demonstrates that he (1) has served continuously as a firefighter for four years or 

more, (2) had direct exposure to a Group 1 carcinogen linked to his type of 

cancer, (3) passed a physical examination—either before asserting a claim or 

engaging in firefighting duties—which revealed no evidence of cancer, and (4) filed 

the claim within 300 weeks of his last day of employment. The presumption relieves 

the firefighter of the need to prove that his workplace exposure, and not another 

cause, was the actual and specific cause of his cancer. See 77 P.S. § 413. The 

employer may rebut this presumption through “substantial competent evidence that 

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

firefighting.” 77 P.S. § 414. 

2. Sladek II

In Sladek II, our Supreme Court expounded upon the respective burdens 

of proof in disputes concerning whether a claimant has a compensable occupational 

disease under Sections 108(r) and 301(f) of the Act. Pursuant to the Supreme Court’s 

decision in Sladek II, a claimant must first prove that he suffers from an occupational 

disease under Section 108(r) of the Act. In order to meet this burden, the claimant 

must “establish a general causative link between the claimant’s type of cancer and 

a Group 1 carcinogen.” Sladek II, 195 A.3d at 208 (emphasis added). “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 in original). In order to establish this general causative link, the claimant 
14

may submit epidemiological evidence7in support of his claims. If, however, the 

claimant introduces an “expert opinion [that] does not satisfy the Frye[8]standard, 

[the claimant] cannot carry his evidentiary burden of proof to establish an 

‘occupational disease’ under Section 108(r)” of the Act. Sladek II, 195 A.3d at 210. 

The employer may submit its own epidemiological evidence to counteract the 

claimant’s evidence. Id. (holding that if employer submits evidence which Board 

concludes is more credible on general causation, that evidence “carr[ies] the day 

without the burden of proof with respect to the evidentiary presumption ever shifting 

to the [employer] to prove specific causation”). Provided that the claimant 

demonstrates, among other requirements, the required general causative link, the 

claimant is entitled to the statutory presumption provided by Section 301(f) of the 

Act. 

The burden then shifts to the employer to rebut the presumption. To do 

so, the employer must identify “(1) the specific causative agent of claimant’s cancer, 

and [prove that] (2) exposure to that causative agent did not occur as a result of his 

or her employment as a firefighter.” Sladek II, 195 A.3d at 209. “In other words, 

the language of Section 301(f) [of the Act] requires the employer to produce a 

medical opinion regarding the specific, non-firefighting related cause of claimant’s 

cancer.” Id. The employer may not use generalized epidemiological evidence to 

rebut the statutory presumption. Id. at 210.

 

7

“Epidemiology deals with, inter alia, the identification of potentially causative 

associations in various populations between possible causative agents and the resulting incidence 

of particular diseases and seeks to generalize those results.” Sladek II, 195 A.3d at 208. 

8 Frye v. U.S., 293 F. 1013, 1014 (D.C. Cir. 1923) (“[T]he thing from which the deduction 

is made must be sufficiently established to have gained general acceptance in the particular field 

in which it belongs.”). 
15

B. Application to This Matter

Applying the foregoing, to receive the statutory presumption, Claimant 

had to prove first that his lung cancer is an occupational disease within the meaning 

of Section 108(r) of the Act. The WCJ rejected Dr. Singer’s opinion as not credible 

or competent as to causation; however, the WCJ accepted that Claimant was exposed 

to IARC Group 1 carcinogens in the course of his employment, including, inter alia, 

diesel fumes/exhaust. (First WCJ Decision at 17, F.F. No. 18.) Further, the WCJ 

accepted Dr. Sandler’s opinion that the IARC has found sufficient evidence of a 

causal link between diesel exhaust, which is an IARC Group 1 carcinogen, and lung 

cancer. (Id. at 12, F.F. No. 7j; R.R. at 891.) Employer has not submitted evidence 

establishing that the Group 1 carcinogens to which Claimant was exposed as a 

firefighter do not cause lung cancer. Claimant has, therefore, established that he has 

an occupational disease pursuant to Section 27.1(r) of the Act. 

Because Claimant has established that he has an occupational disease 

and has met the other requirements of Section 301(f) of the Act,9 Claimant is entitled 

to the statutory presumption. Accordingly, contrary to the Board’s conclusion in its 

second decision, the burden shifted to Employer to identify “(1) the specific 

causative agent of [C]laimant’s cancer, and [prove that] (2) exposure to that 

causative agent did not occur as a result of his . . . employment as a firefighter.” 

Sladek II, 195 A.3d at 209. Employer has attempted to rebut the presumption 

through Dr. Guidotti’s deposition testimony and Dr. Sandler’s medical report. 

Dr. Guidotti’s opinion only rejected the notion that Claimant’s cancer was caused 

 

9 Both parties have stipulated that Claimant has served continuously as a firefighter for four 

years or more and passed a physical examination before engaging in firefighting duties, which 

revealed no evidence of cancer. Further, the WCJ has accepted that Claimant had direct exposure 

to a Group 1 carcinogen. Lastly, there is no dispute that Claimant filed his claim petition 

within 300 weeks of his last day of employment. 
16

by any exposures to carcinogens as a result of firefighting—he did not offer an 

opinion concerning the specific cause of Claimant’s cancer. Dr. Guidotti’s opinion 

is, therefore, insufficient to rebut the statutory presumption under Sladek II.

Dr. Sandler’s opinion also rejected the notion that Claimant’s cancer 

was caused by exposures to carcinogens during firefighting, concluding, instead, that 

“[Claimant’s] diagnosed lung cancer is most likely caused by his significant personal 

risk factors, the most important being his personal smoking history.” (R.R. at 894 

(emphasis added).) Dr. Sandler’s opinion lacks the level of certainty required by 

law to establish a causal connection between Claimant’s nonemployment-related 

risk factors and his cancer. See Lewis v. Workmen’s Comp. Appeal Bd. (Pittsburgh 

Bd. of Educ.), 498 A.2d 800, 802 (Pa. 1985) (“Where medical testimony is necessary 

to establish a causal connection, the medical witness must testify, not that the injury 

or condition might have or possibly came from the assigned cause, but that in his 

professional opinion the result in question did come from the assigned cause.”).10 

Consequently, Dr. Sandler’s opinion is also insufficient to rebut the evidentiary 

presumption.

III. CONCLUSION

For the reasons set forth above, Claimant established that he was 

entitled to the statutory presumption under Section 301(f) of the Act, being that his 

lung cancer was caused by the occupation of firefighting. Employer failed to rebut 

the statutory presumption with substantial competent evidence that Claimant’s 

 

10 Indeed, in reversing the First WCJ Decision and awarding benefits to Claimant, the 

Board reached this very same conclusion: “Dr. Sandler’s opinion, when reviewed as a whole, 

lacks the certainty necessary to overcome the presumption that Claimant’s cancer was caused by 

firefighting.” (C.R., Item No. 9, at 11.) It is not entirely clear to the Court why the Board reached 

a contrary conclusion in its review of the Second WCJ Decision following remand. To put it 

simply, the Board got it right the first time.
17

cancer was caused by something other than his workplace exposure to IARC 

Group 1 carcinogens linked to lung cancer. Accordingly, Claimant is entitled to 

benefits under the Act, and we reverse the Board’s December 11, 2018 order to the 

contrary.

P. KEVIN BROBSON, Judge

Judge Fizzano Cannon did not participate in the decision of this case.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Wayne Deloatch, :

Petitioner :

:

v. : No. 1684 C.D. 2018

:

Workers’ Compensation Appeal :

Board (City of Philadelphia), :

Respondent :

O R D E R

AND NOW, this 3

rd day of January, 2020, the order of the Workers’ 

Compensation Appeal Board, dated December 11, 2018, is hereby REVERSED.

P. KEVIN BROBSON, Judge