WORKERS’ COMPENSATION FLASHPOINTS January 2025
Joseph P. Basile | E-mail Joseph Basile
Majority of Appellate Court Finds Claimant Failed To Prove Workplace Exposures Were a Contributing Factor in Development of Prostate Cancer and Commission Properly Applied Presumption in §1(d) of the Workers’ Occupational Diseases Act
In Mangiameli v. Illinois Workers’ Compensation Commission, 2024 IL App (1st) 231397WC-U, the court majority found that the claimant failed to prove workplace exposures were a contributing factor in the development of his prostate cancer and that the Commission properly applied the presumption in §1(d) of the Workers’ Occupational Diseases Act (OD Act), 820 ILCS 310/1, et seq. The claimant was a firefighter for the Village of Hoffman Estates from August 1998 until he retired in July 2018. He started working as a “combined paramedic firefighter” in 1989 or 1990. 2024 IL App (1st) 231397WC-U at ¶5.
During his career, the claimant responded to emergency calls, car accidents, fires, and medical emergencies. He worked two to three shifts a week and averaged five – ten calls per shift. 2024 IL App (1st) 231397WC-U at ¶5.
A “Hoffman Estates Fire Department Staff Incident Responses Report” was introduced into evidence detailing the calls from 2005 – 2017. 2024 IL App (1st) 231397WC-U at ¶6. The report listed 1,558 calls. Id.
The claimant described the protective equipment he wore during his career and how it improved over time. He wore a mask for fires with heavy smoke and heat, but not for outdoor situations or non-structure fires. He could wear a mask in any situation even if he were not instructed to do so by his employer. He did not wear a self-contained breathing apparatus (SCBA) for auto accidents unless there was a fire. He was exposed to radiator fluid, oil, gasoline, and smoke during auto accidents and was exposed to smoke when responding to outdoor fires. He coughed up black soot and blew it out of his nose after fighting fires without his mask.
The claimant responded to fires in houses, apartments, industrial buildings, fields, and dumpsters. He would wear a mask in areas of heavy smoke and heat. At the beginning of his career, he did not wear a mask during the overhaul process, which involved tearing open ceilings and walls to ensure there was no fire extension or people or animals in the building. Later, he did wear a mask, and monitors were used to check for oxygen, carbon monoxide, hydrogen sulfide, and upper and lower explosive limits. He would take off the mask and air pack when levels were normalized. 2024 IL App (1st) 231397WC-U at ¶10. His protective equipment would have soot and residue after a fire and he would wipe the soot off his neck, blow it from his nose, and cough it up. 2024 IL App (1st) 231397WC-U at ¶11.
The claimant’s father was diagnosed with prostate cancer at age 72. 2024 IL App (1st) 231397WC-U at ¶14. The claimant was 59 at the time of the hearing. 2024 IL App (1st) 231397WC-U at ¶15.
In 2002, at age 43, the claimant was diagnosed with elevated prostate-specific antigen (PSA) levels, but a biopsy showed no malignancy. 2024 IL App (1st) 231397WC-U at ¶15. Repeated PSA tests continued to show elevated levels, and biopsy tests in 2017 revealed a malignancy of the prostate. He underwent surgery in May 2017 and then had forms of radiation therapy through January 2018, following which he went on hormone replacement therapy for two years that continued through the time of the hearing. At the time of the hearing, the prostate cancer was in remission. The claimant was released to full duty in June 2018 and retired in July 2018. Id.
Dr. Peter Orris was the claimant’s medical expert, and Dr. Lev Elterman was the respondent’s medical expert. Their depositions were taken and presented.
Dr. Orris is board-certified in occupational and preventative medicine. He reviewed 50 – 60 studies and forms of literature assessing the occupational exposures of firefighters to carcinogens. 2024 IL App (1st) 231397WC-U at ¶18. He examined the claimant and reviewed the claimant’s work, personnel, and medical records.
Dr. Orris testified the claimant was exposed to multiple carcinogens from his firefighter duties, primarily during the overhaul process. He agreed the claimant’s occupation increased the exposure to carcinogens.
When asked about the elevated PSA when the claimant was in his 40s, Dr. Orris stated, “What we know from the literature is that often firefighters will develop prostate cancer at an earlier age than the general population.” 2024 IL App (1st) 231397WC-U at ¶22. Dr. Orris testified that the family history of prostate cancer doubled claimant’s risk of developing it, but that family history accounts for only ten percent of all prostate cancer. Id. Dr. Orris’s opinion was that the claimant’s occupation and family history increased his risk of developing prostate cancer. He further testified that the claimant’s occupation as a firefighter for 29 years “was a cause of his prostate cancer.” Id. He could not say which chemicals specifically caused the cancer.
On cross-examination, Dr. Orris agreed the claimant’s diet and intake of barbequed food were increased risks for cancer and exposed him to carcinogens. He also agreed that the claimant’s obesity increased his risk for certain cancers.
Dr. Elterman is a board-certified urologist who treats an average of ten patients for prostate cancer a week. 2024 IL App (1st) 231397WC-U at ¶26. He conducted an examination of the claimant and reviewed the medical records. He testified that the family history of prostate cancer increased the claimant’s risk of developing it. He agreed that firefighters are exposed to carcinogens, but did not know the specific carcinogens to which the claimant was exposed.
When asked for his opinion, Dr, Elterman testified: “I thought that [claimant’s] prostate cancer was not related to his employment as a firefighter.” 2024 IL App (1st) 231397WC-U at ¶27. The basis for his opinion was his review of the literature and the high risk for prostate cancer due to the family history. He relied on a study showing the son of a father with prostate cancer was twice as likely to develop it as the average man. Id. He opined that there was no statistically significant increase in prostate cancer incidence among firefighters when compared to the general public and that the “available literature, at best, demonstrated an inconclusive relationship between firefighting and the development of prostate cancer.” Id.
On cross-examination, Dr. Elterman admitted that he never conducted a study on the incidence of cancer in firefighters. He agreed prostate cancer can be influenced by multiple factors, including a person’s environment. He was not familiar with studies on the correlation between the occupational exposures of firefighters and prostate cancer or of a study that showed firefighters have a higher risk of prostate cancer at an earlier age than the general population. 2024 IL App (1st) 231397WC-U at ¶28. He agreed the study he relied on showed an increased incidence of prostate cancer in firefighters under age 64. Id. On redirect, Dr. Elterman testified the study he relied on indicated there was no excess risk of prostate cancer among firefighters. 2024 IL App (1st) 231397WC-U at ¶29.
The arbitrator issued a decision finding a causal connection between the claimant’s occupation and his prostate cancer and awarded benefits.
In a two-one decision, the Commission reversed. The Commission found the claimant met his burden of demonstrating exposure to carcinogens under §1(d) of the Occupational Diseases Act. However, the Commission disagreed with the arbitrator’s finding that the employer failed to rebut the presumption that the cancer was causally related to the employment under §1(d). Relying on Johnson v. Illinois Workers’ Compensation Commission, 2017 IL App (2d) 160010WC, 80 N.E.3d 573, 414 Ill.Dec. 430, the Commission found that Dr. Elterman’s opinion and off-work slips indicating the claimant’s cancer was an “off-duty” illness rebutted the presumption. 2024 IL App (1st) 231397WC-U at ¶31. The Commission, relying on Dr. Elterman’s opinion, found the claimant failed to prove that his exposure to hazardous substances was a contributing factor to the development of prostate cancer.
The claimant’s first argument on appeal was that the Commission improperly considered the presumption in §6(f) of the Workers’ Compensation Act (Compensation Act), 820 ILCS 305/1, et seq., when determining the weight to be afforded to the presumption in §1(d) of the OD Act. He argued that clear and convincing evidence was required to rebut the presumption.
The court compared the language of each section, noting the similarity of both presumptions. The court found the Commission properly reviewed caselaw interpreting the presumption in §6(f) of the Compensation Act when it interpreted §1(d) of the OD Act. The Commission properly relied on and applied the Johnson decision, which required the employer to offer some evidence sufficient to support a finding that something other than the claimant’s occupation caused his condition. 2024 IL App (1st) 231397WC-U at ¶37.
“Given the similarities in the presumptions set forth in Section 1(d) of the [OD] Act and Section 6(f)of the Workers’ Compensation Act, we conclude that employer was only required to offer some evidence to rebut the presumption set forth in Section 1(d) of the Act.” 2024 IL App (1st) 231397WC-U at ¶38.
The claimant next argued the Commission’s finding that the employer rebutted the presumption was contrary to the law and against the manifest weight of the evidence. The court rejected this, pointing out that Dr. Elterman’s opinion was some evidence that supported a finding that something other than the claimant’s occupation caused the cancer. Dr. Elterman testified the claimant likely developed the cancer as a result of his family history, which made him twice as likely to develop it. The court noted the claimant was arguing against the validity of Dr. Elterman’s opinion, which goes to the weight to be given the opinion by the trier of fact.
Finally, the court disagreed with the claimant’s argument that the Commission’s finding that he failed to prove his employment was a causative factor was against the manifest weight of the evidence. “The Commission based its finding on ‘the current state of scientific studies and the persuasive opinion of Dr. Elterman.’ ” 2024 IL App (1st) 231397WC-U at ¶46. The opinion comments “that the scientific studies, at this point in time, regarding the correlation between the development of prostate cancer and the occupation of firefighting are evolving.” 2024 IL App (1st) 231397WC-U at ¶49. The claimant had a family history of prostate cancer, which doubled his risk for developing it. “Under these circumstances we will not usurp the function of the Commission to weigh the evidence and make credibility determinations.” Id.
Justice Holdridge dissented for the reasons set forth in his dissent in the Johnson case. See 2024 IL App (1st) 231397WC-U at ¶55. In his view, the effect of the decision in Johnson and in this case is to weaken the protections given to firefighters in the Compensation Act and OD Act to such a degree that they are effectively meaningless. He also believed that the Commission’s decision was against the manifest weight of the evidence and that the employer did not rebut the statutory presumption.
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