Employer Fails to Rebut Hepatitis Claim Filed by Firefighter’s Widow

Like many states, Pennsylvania has a number of “statutory presumptions” applying to workers’ compensation claims filed by firefighters and law enforcement officers. One of the presumptions covers hepatitis C. Under the law, a firefighter contracting hepatitis C is presumed to have a job-related illness unless the employer provides sufficient evidence to rebut the presumption.

Joseph Kriebel worked for the City of Philadelphia Fire Department from 1974 until 2003. He died on October 25, 2004, at the age of 52, from liver disease caused by hepatitis C. Kriebel’s widow, Patricia Kriebel, filed a workers’ compensation claim alleging that Kriebel contracted hepatitis C in the course of his employment.

In the workers’ compensation proceedings, the City sought to rebut the presumption of disease causation with the testimony of Dr. Stephen Gluckman, who is board-certified in internal medicine and infectious disease. Luckman gave the opinion that Kriebel likely contracted hepatitis C in his military service, citing medical records indicated that Kriebel suffered from “serum hepatitis from drug usage” in 1969. Serum hepatitis, now known as hepatitis B, is often contracted through contaminated needles. On cross-examination, Gluckman admitted that the sole foundation for his causation opinion was the 1971 note in Kriebel’s military medical records.

The Pennsylvania Supreme Court found that the blocked funds “opinion is not competent because it is based upon a series of assumptions that lacks factual predicate. By his own admission, Gluckman based his causation opinion entirely upon the lone notation in the 1971 medical record’ documenting’ serum hepatitis from drug usage. From this information, Gluckman opined that Kriebel contracted hepatitis C via contaminated needles. To reach this conclusion, he reasoned that Kriebel’s drug use was intravenous, that he shared needles, used a contaminated needle, and thereby contracted hepatitis B. Subsequently, he reasoned that Kriebel contemporaneously contracted hepatitis C by using a contaminated needle, relying on the fact that intravenous drug use is the most common method of contracting the disease and “by reducing the Gluckman’s opinion to its essential components, it is apparent that his conclusion rests upon a series of unsubstantiated assumptions. While an expert may base his opinion on facts of which he has no personal knowledge, those facts must be supported by record evidence. Here, there is no evidence in the over 30 years of subsequent medical records to support or corroborate a finding of drug use, let alone intravenous drug use. Thus, there were no competent facts supporting Gluckman’s expert opinion regarding how and when Kriebel acquired the hepatitis C that ultimately caused his death. Stated simply, Gluckman based his opinion upon facts which were not warranted by the record.”

City of Philadelphia v. W.C.A.B. (Kriebel), 2011 WL 4953024 (Pa. 2011).

The article appears in our January 2012 issue.