Las Vegas POA

Firefighter Who Smoked For 30 Years Wins Lung Cancer Claim

Written on 04/02/2020
Will Aitchison

Wayne Deloatch worked as a firefighter for the City of Philadelphia from 1988, until he retired in 2008. Deloatch filed a workers’ compensation claim when was diagnosed with lung cancer in 2011.

Over the course of his career, Deloatch worked at three different fire stations, none of which contained a diesel fuel emissions capture system. At the beginning and end of each shift, firefighters were required to start the fire trucks and leave them running for approximately 15-20 minutes.

During Deloatch’s firefighting career, he fought approximately 200-300 fires, including building, house, car, dumpster, trash, grass, and field fires, which exposed him to smoke. Deloatch sometimes wore a self-contained breathing apparatus (SCBA) when responding to a fire. Deloatch testified that the City did not fit test the SCBAs and Deloatch did not use the SCBA during exterior firefighting or overhaul, which entailed “ripping of walls, ceilings, searching for any hidden fire and extinguishing it if it was visible.”

After exposure to each fire incident, Deloatch’s body would be coated in soot, and he would often find soot in his nasal secretions up to a week after exposure. Deloatch smoked cigarettes for 30-35 years but stopped smoking in 2011.

A Pennsylvania court upheld the award of workers’ compensation benefits to Deloatch. The case turned on Pennsylvania’s presumptive causation statute which presumes that cancer is caused by a firefighter’s job. The presumption of causation may be rebutted by substantial competent evidence that shows that the firefighter’s cancer was not caused by the occupation of firefighting.

The Court analyzed the case in the following terms: “The City has not submitted evidence establishing that the Group 1 carcinogens to which Deloatch was exposed as a firefighter do not cause lung cancer. Deloatch has, therefore, established that he has an occupational disease. The burden has now shifted to the City to identify the specific causative agent of Deloatch’s cancer, and prove that exposure to that causative agent did not occur as a result of his employment as a firefighter.

“The City 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 Deloatch’s cancer was caused by any exposures to carcinogens as a result of firefighting. He did not offer an opinion concerning the specific cause of Deloatch’s cancer. Dr. Guidotti’s opinion is, therefore, insufficient to rebut the statutory presumption.

“Dr. Sandler’s opinion also rejected the notion that Deloatch’s cancer was caused by exposures to carcinogens during firefighting, concluding, instead, that ‘Deloatch’s diagnosed lung cancer is most likely caused by his significant personal risk factors, the most important being his personal smoking history.’ Dr. Sandler’s opinion lacks the level of certainty required by law to establish a causal connection between Deloatch’s nonemployment-related risk factors and his cancer. 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. Consequently, Dr. Sandler’s opinion is also insufficient to rebut the evidentiary presumption.

“Deloatch established that he was entitled to the statutory presumption that his lung cancer was caused by the occupation of firefighting. The City failed to rebut the statutory presumption with substantial competent evidence that Deloatch’s cancer was caused by something other than his workplace exposure to Group 1 carcinogens linked to lung cancer. Accordingly, Deloatch is entitled to benefits.”

Deloatch v. Workers’ Compensation Appeals Board, 2020 WL 34306 (Penn. Cmwlth. 2020).

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