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IN THE COMMONWEALTH COURT OF PENNSYLVANIA City of Philadelphia, Petitioner v. Workers' Compensation Appeal Board (Sites), Respondent BEFORE: : : : : : : : :

No. 1410 C.D. 2005 Submitted: October 14, 2005

HONORABLE JAMES GARDNER COLINS, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge

OPINION BY JUDGE LEAVITT

FILED: December 21, 2005

The City of Philadelphia (City) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) awarding compensation benefits to Frank J. Sites (Claimant). In doing so, the Board affirmed the decision of the Workers' Compensation Judge (WCJ) that Claimant's hepatitis C was a work-related occupational disease, notwithstanding the fact that hepatitis C was not specifically identified by the legislature as a compensable occupational disease until after Claimant's diagnosis. Claimant has worked for the City both as a firefighter and a "First Responder," i.e., an emergency medical technician, since 1966.1 On December 6,
Pursuant to the "First Responder" program, the nearest engine company to a medical emergency scene responds to the medical emergency and renders medical treatment to the victims, until the medical professionals arrive at the scene. WCJ Decision, September 29, 2004, at Finding of Fact 2(f) (F.F. __); Reproduced Record at 55a-56a (R.R. __). Claimant began training for a position in this program in October of 1988.
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1999, Claimant was diagnosed with hepatitis C.2

Three days later, Claimant

notified the City in writing of his diagnosis and of his belief that the disease to be work-related. On November 22, 2002, Claimant filed a claim petition seeking total disability benefits for work days missed as a result of his treatment for hepatitis C. The City filed an answer denying all material allegations of the claim petition, and the matter was assigned to a WCJ for a hearing. In support of his claim petition, Claimant, age 59, testified about his work for the Fire Department since 1966. As a firefighter, Claimant was called to automobile accidents, industrial accidents and explosions, routinely coming into contact with the blood and bodily fluids of victims. On hot days, when Claimant wiped his brow, the blood on his gloves would mix with his own perspiration and run into his eyes and face. In addition, blood sometimes saturated the leather of his gloves. In 1988, Claimant received training in how to treat medical emergencies such as heart attacks, strokes, stabbings, shootings, muggings, and baby deliveries, and became a First Responder for the City. In that capacity, Claimant treated numerous bleeding victims with direct pressure, pressure points and CPR; he also assisted in the delivery of two babies. As a First Responder, Claimant participated in approximately one thousand medical runs, many of which left him covered in victims' blood. In November 1995, Claimant transferred from Engine Company 52 to Ladder Company 28,3 which is sent on fewer medical runs. However, due to its
Claimant testified that he first learned that he had elevated liver enzymes in 1982, after he was released from an alcohol treatment program. Since then, every routine blood test done showed elevated liver enzymes, but he had no understanding of their significance. It was not until 1999 that Claimant was advised that he had hepatitis C. 3 Claimant was still working for Ladder Company 28 as of the date of his testimony.
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proximity to busy streets and highways, Ladder Company 28 responds to many automobile accidents. The removal of victims from wrecked automobiles also involves considerable exposure to blood. When questioned about his personal habits and health history, Claimant explained that he occasionally cuts his face shaving and that in cold weather he develops cracks in the skin of his hands. Claimant was treated for alcohol problems in 1979 and 1982; however, Claimant has not had a drink in over twenty years. Claimant has been told for years, the first time in 1982, that his liver enzymes were elevated, but he was never given any information about the significance of that condition. He was married for twenty-eight years, but he is now divorced and has a female companion. Neither his ex-wife, his present companion,4 nor his two adult children have tested positive for hepatitis C. Claimant has never had a blood transfusion, never used intravenous drugs or snorted cocaine. He has never had his body pierced or received acupuncture treatment. As a young man, Claimant acquired two tattoos, one on each arm.5 Claimant testified about his hepatitis C treatment regimen. In March of 2000, he entered a forty-eight week treatment program under the direction of Dr. Kenneth D. Rothstein.6 The treatment caused severe side effects that required

Claimant testified that he had not had any other sexual relationships. Claimant got one tattoo when he was sixteen years old and the other tattoo when he was twenty-three years old. 6 While in the study, Claimant was required to receive three shots of Interferon per week and take Ribavirin capsules daily. Claimant experienced side effects such as flu-like symptoms and severe depression with general thoughts of suicide. As a result, Claimant was prescribed Prozac during the months of the study.
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Claimant to call off sick.7

Even after completing the treatment, Claimant

continued to call off sick because of fatigue. These work absences occurred periodically between March 23, 2000, and October 8, 2002. Claimant believes his hepatitis C is now in remission. Claimant also presented the deposition testimony of Dr. Rothstein, who is board-certified in internal medicine and gastroenterology. Dr. Rothstein first examined Claimant on January 5, 2000, at which time he reviewed Claimant's medical records and history. He explained that Claimant's history of elevated liver enzyme levels reflect ongoing inflammation and damage in the liver. Elevated enzymes can be caused by viruses, such as hepatitis B and C, alcoholism, autoimmune disease or obesity. Dr. Rothstein opined that Claimant's elevated enzyme levels did not have the typical pattern of alcoholic liver disease. Dr. Rothstein also explained that Claimant's liver biopsy indicated that Claimant had chronic hepatitis C, which would progress to cirrhosis without treatment.8 Dr. Rothstein opined that Claimant had a very good response to the treatment. His hepatitis C went into remission and has stayed in remission for over two years, reducing the likelihood of a recurrence. Dr. Rothstein did indicate, though, that Claimant's disease will need to be followed on a yearly basis and that Claimant must continue his now healthy lifestyle in order to avoid the progression
The side effects include low grade fevers, chills, body aches, headaches, depression, shorttemperedness, fatigue, insomnia, problems concentrating, nausea, shortness of breath, itching, sinus congestion, joint pains, and problems with urination. 8 Specifically, Claimant has Grade 3 portal cellularity and Grade 2 periportal inflammation, and Stage 2-3 fibrosis with early bridging fibrosis. The grade relates to inflammation, how much necrosis is present, and the amount of ongoing damage. The fibrosis relates to the amount of scarring and provides an estimate as to how far advanced an individual is on the way to cirrhosis. Dr. Rothstein opined that Claimant's status put him at a very high risk for progressing to cirrhosis without treatment.
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to cirrhosis.9 Further, Dr. Rothstein opined that notwithstanding the remission, Claimant's liver damage will continue to cause fatigue, thereby affecting his ability to work.10 Dr. Rothstein stated that Claimant's alcoholism, tattoos,11 and exposure to blood and bodily fluids while serving as a firefighter and First Responder for thirty-three years all placed him at risk for hepatitis C. However, Dr. Rothstein opined that the cause of Claimant's hepatitis C was his exposure to blood while working as a firefighter and First Responder. Cuts in Claimant's skin would have served as points of entry for the virus. Dr. Rothstein acknowledged that First Responders and healthcare workers have a low rate of acquiring hepatitis C because the virus is not efficiently transmitted through occupational exposure. In response, the City presented the testimony of Stephen J. Gluckman, M.D., board-certified in internal medicine. Dr. Gluckman examined Claimant on

The American Liver Foundation provides the following information on hepatitis C: Hepatitis C virus (HCV) is the most common chronic bloodborne infection in the United States. Hepatitis C accounts for the great majority of what was referred to in the past as non-A, non-B hepatitis. The hepatitis C virus was identified in 1989, and in 1990, a hepatitis C antibody test (anti-HCV) became available to identify individuals exposed to HCV. There is no vaccine available to prevent hepatitis C. http://www.liverfoundation.org/db/articles/1084. 10 Dr. Rothstein was unwilling to give a definitive answer as to why Claimant cannot return to his regular hours because fatigue is a subjective complaint. He opined that the problem with fatigue and chronic hepatitis, with or without active hepatitis C infection, is that the fatigue is intermittent. A patient can sometimes go a month without fatigue, or feel fine one day and capable of full work, and then feel fatigued the following few days. 11 Dr. Rothstein pointed out that some studies have shown that there is potential for transmission of the hepatitis C virus by tattooing, but others show that tattooing is not a clear-cut mode of transmission. He opined that the relationship between tattooing and infection may be through the use of contaminated tattoo needles or contaminated ink.

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May 8, 2003, at which time he also took Claimant's history and reviewed his medical records. Dr. Gluckman opined that Claimant was "probably cured." R.R. 228a.12 Dr. Gluckman opined that Claimant's prognosis is excellent and that the chance of Claimant having further problems with hepatitis C is very small; nevertheless, he recommended that Claimant take follow-up blood tests "for awhile, not forever." R.R. 252a. With respect to causation, Dr. Gluckman testified that it was impossible to determine when and where Claimant became infected with hepatitis C. He suggested that the elevated liver enzyme levels found in 1993 were a result of hepatitis C and that it was "possible" that Claimant became infected from his work or from his tattoos. Dr. Gluckman had no knowledge of the specifics of Claimant's job as a firefighter and First Responder, but he knew that these occupations exposed him to blood.13 The WCJ granted Claimant's claim petition, concluding that Claimant had established by credible and persuasive evidence that he had sustained a workrelated injury. The WCJ awarded total disability benefits for 210 intermittent days from March 23, 2000, through October 8, 2002, when Claimant was unable to work due to symptoms or treatment for hepatitis C. The WCJ suspended Claimant's total disability benefits during the same time period for the days in which Claimant worked, and suspended the benefits entirely as of October 9, 2002.
Dr. Gluckman stated, "His hepatitis C viral lows, which is the measure of the virus in the blood, at the end of treatment and as late as two years after treatment were still negative and the vast, vast majority of such people are cured. It becomes a bit of semantics whether you say cured or lifetime remission." R.R. 228a-229a. 13 Dr. Gluckman also commented on a study relating to incidents of hepatitis C among firefighters and First Responders compared to the general population. He opined that the study reveals that there is no increased risk of infection in firefighters and First Responders compared to the general population. However, he did not rule out the possibility that a firefighter or First Responder could contract hepatitis C while on the job.
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Following cross-appeals by both parties, the Board affirmed the WCJ's decision. The City now petitions this Court for review.14 The City raises several issues that we have reordered and consolidated for purposes of our analysis. The City argues, first, that Claimant's petition was barred by the statute of limitations in the Workers' Compensation Act (Act)15 because it was not filed within 3 years of Claimant's learning that his liver enzymes were elevated. Next, the City contends that Claimant is not entitled to occupational disease benefits under Section 108(m)16 of the Act because hepatitis C was not a recognized occupational disease at the time he contracted the virus and because Claimant was not engaged in an occupation that was recognized to expose him to the virus. In any case, even if Claimant were titled to compensation for hepatitis C, by virtue of the statutory presumption that infectitious hepatitis is work-related where one its exposed to blood on the job, the City claims it rebutted the presumption with competent and substantial evidence. Finally, the City contends that because Claimant was not entitled to the statutory presumption established for employees with an occupational disease, he was required to prove

This Court's scope of review is limited to determining whether the WCJ's necessary findings of fact are supported by substantial evidence or whether an error of law or a constitutional violation occurred. O'Donnell v. Workers' Compensation Appeal Board (United Parcel Service), 831 A.2d 784, 789 (Pa. Cmwlth. 2003). 15 Act of June 2, 1915, P.L. 736, as amended, 77 P.S.

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