IN THE COMMONWEALTH COURT OF PENNSYLVANIA

City of Chester, : Petitioner :

:

v. : No

. 1040 C

. D

. 2021

: Submitted: January 2 7 , 2023 John Gresch and Nether Providence : Township (Workers ’ Compensation : Appeal Board), : Respondents :

BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge HONORABLE LORI A. DUMAS, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE DUMAS FILED: July 6, 2023

The City of Chester ( City ) has petitioned this Court to review an adjudication of the Workers ’ Compensation Appeal Board (Board), affirming the

decision of the Workers’ Compensation Judge (WCJ ), which granted a claim petition
filed by John Gresch (Claimant) under the Workers’ Compensation Act (Act) 1 and

denied the City’s joinder petition

. On appeal, the City contends that the Board erred

in its application of the “ liable employer ” doctrine

. 2 Upon review

, we affirm

.

1 Act of June 2, 1915, P.L. 736, as amended , 77 P.S. §§ 1

- 1041.4, 2501

- 2710.

2 A s discussed hereinafter, where a claimant suffers from an occupational disease as a result of exposure to the hazards of that disease while employed by multiple employers

, t he doctrine assigns liability to a single employer

. See Avalotis Painting v. Workmen ’ s Comp. Appeal Bd. (Markulin) , 621 A .2d 1167 (Pa. Cmwlth. 1993); Section 301(c)(2) of the Act, 77 P.S. § 411(2)

.2 I. BACKGROUND 3

Claimant worked for the City as a firefighter for approximately 37
years, from May 28, 1977, to April 1, 2014 , eventually achieving the rank of

“battalion chief.” Following his retirement

, Claimant began to work as a f ire m arshal

for Nether Providence Township (Township) and has worked for the Township since
September 10, 2015. In November 2017, Claimant was diagnosed with kidney

cancer. He was treated for the cancer , had part of his kidney surgically removed,

and missed a

pproximately six months of work with the Township.
On February 22, 2019, Claimant filed a claim petition against the City,
alleging that he had developed kidney cancer after exposure to carcinogen s while
working as a firefighter for the City. Claimant sought total compensation benefits
from January 3, 2018, through May 1, 2018. The City den ied liability and filed a
petition for joinder against the Township

. In turn, t he T ownship den ied all the
allegations in th e joinder petition

.

A hearing was held before the WCJ on September 9, 2019. By
deposition, Claimant testified that he was exposed routinely to smoke

, soot , and

diesel emissions during his career with the City. He also quantified those exposures

, testify ing that he responded to 12 structure fires per month. 4 Claimant ’s current

duties as a fire marshal differ considerably. In that role, Claimant perform s fire
inspections, conducts fire investigations, and host s fire safety programs with

children. Claimant is not an active firefighter but has been on the grounds of fire

scenes approximately six or seven times during his service with the Township.

3 Unless stated otherwise, we adopt the factual background for this case from the decision
of the WCJ

, which is supported by substantial evidence of record. See WCJ’s Decision, 2/26/2020

, at 1

- 11. We note that the parties do not dispute the facts.

4 As ba ttalion chief, Claimant would respond to as many as two dozen fires per month. See WCJ’s Decision at 6.3 Claimant also introduced the medical report of Tee L. Guidotti, M.D.,

who is board certified in internal medicine and occupational medicine and has

studied cancer in the fire service for decades

. Dr. Guidotti opined that Claimant was exposed to group 1 carcinogens 5 tetrachloroethylene and trichloroethylene as a firefighter by way of smoke produced f rom burning synthetic materials

. According

to Dr. Guidotti , this exposure caused Claimant’s development of kidney cancer. 6

Neither t he City nor the Township offer ed medical evidence to contest Dr. Guidotti’s

report.
Based upon this evidence, t he WCJ granted Claimant’s petition

, awarding him indemnity benefits, medical benefits, and litigation costs. The WCJ

also denied the City’s petition to join the Township , concluding that the T ownship

was not liable for Claimant’s cancer

. 7

The City appealed to the Board, which affirmed. The City now appeals

to this Court. 8

5 The International Agency for Research on Cancer (“IARC”) is a specialized research group within the World Health Organization that attempts to identify the causes of human cancers. The agency evaluates various agents, mixtures, and exposures, and classifies them into one of five groups. Group 1 substances are considered “carcinogenic to humans.” See IARC Monographs on the Evaluation of Carcinogenic Risks to Humans, WORLD HEALTH ORGANIZATION , https://monographs.iarc.who.int/agents

- classified

- by

- the

- iarc (last visited Ju ly 5 , 2023)

.

6 In 2014, prior to his retirement from the City, Claimant was diagno sed with leukemia. Dr. Guidotti opined that Claimant’s type of leukemia was unrelated to Claimant’s fire service.

7 The WCJ determined that Claimant established an occupatio nal disease per Section 108(r) ( occupational diseases ) as well as Section 108(n) ( catch

- all provision) of the A ct. See 77 P.S. §27.1(r) ; 77 P.S. §27.1(n)

, added by the Act of October 17, 197 2 , P.L. 930. In addition, the WCJ
determined that Claimant was entitled to the benefits of the firefighter presumption. See Section 301(f) of the Act, 77 P.S. § 414 ( cancer suffered by a firefighter) , added by the Act of July 7, 2011

, P.L. 251

. These conclusions are not at issue in this appeal.

8 O ur review is limited to determining “whethe r there has been a violation of constitutional rights, whether errors of law have been committed, whether board procedures were violated, or whether necessary findings of fact are supported by substantial evidence.” Bryn Mawr4 II. ISSUE
On appeal, the City contends that the Township is liable for Claimant’s

cancer because the Township was the mo re recent employer to expose Claimant to

a group 1 carcinogen. Pet’r ’s Br. 9

- 1 4

. In response, Claimant argues that the
Board’s decision is supported by evidence of record and all pertinent authority.

Resp ’t ’s Br. at 12

- 13

. 9

, 10

III. ANALYSIS

The City a sserts that the Board erred in determining that the City is the
liable employer because Claimant was last exposed to the hazard while employed
for the Township. Pet’r ’s Br. at 10. According to the City

, Section 301(c)(2) of the

Act, 77 P.S. §411(2)

, states that w here a claimant works for more than one employer

for a period of more than one year, the liable employer is the employer w hich last

Landscaping Co. v. Workers’ Co mp. Appeal Bd. (Cruz

- Tenorio) , 219 A.3d 1244, 1252 n.5 (Pa. Cmwlth. 2019) ( internal citation omitted)

.

9 The Township filed a brief in response to the City’s petition for review, arguing the following: t he Township is not the liable employer under Section 301(c)(2) because there was no evidence that Claimant was exposed to hazards while employed for the Township and that the Township is not liable for Claimant’s cancer under Section 108(r) because Claimant was a fire
marshal and not a firefighter ; t hus

, Section 108(r) does not apply. Twp.’s Br. at 2 2

- 26. In light of the issue presented by the City, and our disposition of this appeal, we need not address the Township’s arguments.

10 In its brief, the City also argues that the WCJ erred in determining that the City was liable under Section 108(n) because it did not employ Claimant on the last date of exposure. Pet’r’s Br.
at 14

- 16. This Court reviews decisions of the Board, not the WCJ

. Thus, the target of the City’s criticism is misplaced. See Dowh ower v. Workers’ Comp. Appeal Bd. (Capco Contracting) , 934 A.2d 774, 778

- 79 (Pa. Cmwlth. 2007) (holding that issues determined by the WCJ but not addressed by the Board were not ripe for appellate review). Further, the Board determined liability
under Sec tion 108(r), and we discern no error therein. See Board Op. and Order , 8/26/21, at 7

- 8. This Court has consistently applied Section 108(n) as a “catch all” provision for those claimants unable to establish an entitlement to benefits under a more specific provision such as Section 108(r). See, e.g., Capaldi v. Workers' Comp. Appeal Bd. (City of Philadelphia) , 152 A.3d 1107, 1115 n.12 (Pa. Cmwlth. 2017) (“[W]here a claimant fails to make a case under Section 108(r) of the Act, he may show that it was an occ upational disease under the catch all provision in Section 108(n) of the Act.”). For these reasons, we decline to address the City’s argument in further detail.5

exposed a claimant to the occupational hazard. Pet’r’s Br. at 10. Because Claimant
was diagnosed with kidney cancer two years into his employment with the
Township, during which he was exposed to the s ame carcinogens linked to kidney
cancer, the City maintains that the Township is the liable employer

. Pet’r’s Br. at

10

- 13

. Th is is so, according to th e City , even though Claimant did not work as a
firefighter for the Township

. Id . at 12

- 13. Therefore, the City concludes, the

Board ’s decision not to assess liability against the Township is legally erroneous.

Id

. at 13

- 14. In support of these arguments, the City principally reli es on Young v.
Workers’ Comp ensation Appeal B oar d (Zinc Corp. of America) , 897 A.2d 530 (Pa.

Cmwlth. 2006), aff

irme d as modified , 922 A.2d 891 (Pa. 2007 )

. 11
Section 301(c)(2) of the Act limits employer liability to occupational

disease that manifests with in 300 weeks of a claimant’s workplace exposure to the

hazards of that disease. See 77 P.S. § 411(2). If a claimant ’s exposure occurred
while employed by multiple employers, however, only one employer will be liable.

See id

. Further, if the actual exposure to the hazards of an occupational disease , at
these multip le employer s, is less than one year, then the liable employer will be the
employer that exposed the claimant to those hazards for the longe st period

. See id.

I n Avalotis Painting v. Work men ’s Comp ensation Appeal B oar d

(Markulin) , 621 A.2d 1167 (Pa. Cmwlth. 1993) ( Avalotis )

, this Court formulated
what is commonly known as the “liable employer doctrine .” In that case, the
claimant worked for at least two employers during the 300

- week limitations period

11 The City also suggest s that the WCJ erred in determining that the Township was not the
liabl e employer because Claimant’s l eukemia diagnosis pre

- dated his employment with the Township. See Pet’r ’s Br. at 13. As previously noted, the City did not challenge the WCJ’s findings, including his credit of Dr. Guidotti ’s opin ion that Claimant’s leukemia was unrelated to
his fire service

. Because the City failed to raise this issue before the Board, this argument is
waived. See Trigon Holdings, Inc. v. W orkers’ Comp

. Appeal Bd

. (Griffith) , 74 A.3d 359 , 365 (Pa. Cmwlth. 2013) (an em ployer’s failure to raise a challenge before the Board results in its waiver).6

prior to contracting silicosis. Avalotis

, 621 A.2d at 1170. While the claimant had
worked for one of those employers for more than a year , the record established that

the claimant’s employment with another employer, though shorter in duration, had
caused actual exposure to silica for a longer period. See id. The Board assigned
liability accordingly, and this Court affirmed, reasoning that it is not the length of
employment, but rather the length of actual exposure to an occupational hazard that

is the determinative factor . 621 A.2d at 1169 ; see also Cable v. Work men’s Comp.
Appeal Bd

. (Gulf Oil/Chevron USA, Inc.)

, 664 A.2d 1349 , 135 1 ( Pa. 1995)
(plurality ) ( reiterating that “ relevant employment is employment in which a worker
is exposed to the hazard of occupational disease ” and describing our reasoning in

Avalotis as “impeccable” )

. 12

Here, Claimant was employed by the City and the Township during the
300 weeks prior to his diagnosis of kidney cancer

. While Claimant sought to
quantify his actual exposure to group 1 carcinogens , it remains unclear on this record

whether either employer was responsible for Claimant’s actual exposure to group 1
carcinogen s for a period of more than a year

. Al t hou gh Claimant worked for the

12 There are several permutations of the liable employer doctrine, each rooted in a claimant’s actual exposure to the hazards of an occupational disease . As the Avalotis Cour t stated:

[T] he word “exposure” in [S] ection 301(c)(2) means that, in cases in which a claimant has worked for an employer who is responsible for an actual period of exposure of one year or more, that employer is liable. If there is more than one such employer who is responsible for a period of act ual exposure of one year or more, the employer who last thus employed the claimant is liable. Of course,

. . . if no employer is responsible for a period of actual exposure of one year or more, the employer responsible for the longest period of actual expo sure is the employer who is liable for compensation payments. Thus, period of exposure, not the total period of employment, is the governing factor throughout [S] ection 301(c)(2).

621 A.2d at 1169.7

Township more recently, for two years immediately preceding his diagnosis,
Claimant credibly testified that he responded to six or seven fires in total while
employed by the Township. In contrast, Claimant responded to 12 fires per month
while employed by the City. It is therefore obvious that Claimant ’s actual exposure

to the relevant group 1 carcinogen s was far greater while employed by the City than
the Township. Thus, the City is liable for the payment of Claimant’s workers’
compensation benefits

. See 77 P.S. § 411(2) ; Avalotis ; Cable

. 13

In our view

, the City ’s reliance on Young is misplaced. In Young

, the
claimant was diagnosed with cancer after being exposed to asbestos by five different
employers over his forty

- five

- year career. 897 A.2d at 53 1. This Court held the

most recent employer liable because it was the only employer that exposed the

claimant to asbestos during the 300

- week limitations period. Id . at 533

- 34. Unlike

the Young claimant, Claimant worked for both the City and the Township during the
limitations period. Therefore, Young is inapposite to our current analysis.

Accordingly, we affirm the Board’s order

.

LORI A. DUMAS, Judge

13 In describing the liable employer doctrine, the Board s tated that

, “[i]f the employment was with two employers for more than one year each, then the employer for the last longest employment period is liable.” Bd. Op. & Order at 3 (emphasis added)

. The Board erred in suggesting that length of employment is de terminative. Nevertheless

, because its adjudication was correct, this Court may affirm the Board regardless of the reasons given. See Country Club of Scranton & Amerihealth Cas. Servs. v. W orkers’ Comp. Appeal Bd. (Davidson), (Pa. Cmwlth., No
1247 C.D. 2 009, filed Feb

. 17, 2010) 2010 WL 9512522 ( citing Wolf v. W orkers’ Comp. Appeal
Bd. (Cnty. of Berks/Off

. of Aging) , 705 A.2d 483 , 483 n.1 (Pa. Cmwlth. 1997) ).IN THE COMMONWEALTH COURT OF PENNSYLVANIA

City of Chester, : Petitioner :

:

v. : No

. 1040 C.D. 2021

: John Gresch and Nether Providence : Township (Workers ’ Compensation : Appeal Board), : Respondents :

O R D E R

AND NOW, this 6 th day of July , 202 3, the order of the Workers’
Compensation Appeal Board, entered August 26, 2021

, is AFFIRMED.

LORI A. DUMAS, Judge