         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Stanley Szymanski,                  :
                         Petitioner :
                                    :
                   v.               :          No. 494 C.D. 2016
                                    :          Submitted: September 30, 2016
Workers’ Compensation Appeal        :
Board (City of Philadelphia),       :
                         Respondent :



BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE JOSEPH M. COSGROVE, Judge




OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                     FILED: February 14, 2017


        Stanley Szymanski (Claimant) petitions for review of an order of the
Workers’ Compensation Appeal Board (Board) that affirmed the decision and
order of a Workers’ Compensation Judge (WCJ), denying a claim petition filed by
Claimant seeking benefits for his prostate cancer under Section 108(r) of the
Workers’ Compensation Act (Act).1 The Board found Claimant was not entitled to




    1
      Act of June 2, 1915, P.L. 736, 77 P.S. § 27.1(r), added by Section 1 of the Act of October
17, 1972, P.L. 930, as amended. Subsection (r) was added by Section 1 of the Act of July 7,
2011, P.L. 251.
the statutory presumption found in Sections 301(e) and (f) of the Act2 that his
cancer was caused by exposure to a carcinogen recognized as a Group 1
carcinogen by the International Agency for Research on Cancer (IARC) because he
filed his claim more than 300 weeks after the date of his last exposure. On appeal,
Claimant argues the Board wrongly interpreted Sections 301(c)(2)3 and 301(f) of
the Act, denying him the benefit of the presumption. He further argues the time
limitations set forth in Sections 301(c)(2) and 301(f) are subject to the discovery
rule. For the reasons set forth herein, we affirm.
        Claimant joined the City of Philadelphia’s (Employer) Fire Department in
January 1969. (Board Op. at 2.) When hired, as well as throughout his career,
Claimant was given physical examinations and was not treating for any form of
cancer. (Id.) He originally worked at Engine 2 for nine years before transferring
to Engine 58, where he worked as a ladder and engine firefighter until he retired in
December 2004. (Id.) The last fire Claimant fought would have been in the
summer of 2004. (Id. at 3.) In March 2010, Claimant was diagnosed with prostate
cancer. (Id.) It was not until April 2012 when his attorney sent him a report from
Dr. Barry Singer that he connected his cancer diagnosis to his prior work as a
firefighter. (Id. at 3-4.) He filed his Claim Petition shortly thereafter on April 26,
2012. (Id. at 1.)
        Following multiple hearings at which time the parties presented various
testimony and exhibits, the WCJ issued a decision on May 13, 2014, denying the
claim petition. In particular, the WCJ found Claimant did not carry his burden of

    2
      77 P.S. §§ 413, 414. Section 301(e) was added by Section 3 of the Act of October 17,
1972, P.L. 930. Section 301(f) of the Act was added by Section 2 of the Act of July 7, 2011,
P.L. 251
       3
         77 P.S. § 411(2).

                                               2
establishing his prostate cancer was caused by exposure to Group 1 carcinogens.
(WCJ Decision, Findings of Fact (FOF) ¶ 21.) This finding was based largely on
the WCJ crediting Employer’s expert testimony over that of Claimant’s experts.
(Id. ¶ 20.) The WCJ further found that Employer rebutted any presumption with
substantial competent evidence. (Id. ¶ 21.)
      Claimant filed a timely appeal to the Board, which affirmed in an Opinion
dated March 8, 2016. The Board noted that it was not entirely clear whether the
WCJ applied the statutory presumption, but it appeared as though the WCJ did not
do so based upon her findings that Claimant failed to carry his burden to establish
causation. (Board Op. at 15.) However, the Board found the failure to apply the
presumption was not reversible error. (Id.) Although the Claimant testified he last
fought a fire in the summer of 2004, the Board gave Claimant the benefit of the
doubt and assumed his last exposure to the carcinogens was on December 31,
2004, the last day of the month he retired. (Id. at 15-16.) Even with this benefit,
the claim petition filed on April 26, 2012 was more than 381 weeks after the date
of last exposure. (Id. at 16.) Thus, the Board reasoned he was not entitled to the
benefit of the presumption.      (Id.)   Therefore, Claimant bore the burden of
establishing all of the elements of his claim, including causation, which he failed to
do given the WCJ’s rejection, as factfinder, of Claimant’s expert medical
testimony. (Id. at 16-17.)
      In this appeal, Claimant raises two issues: (1) whether the Board committed
an error of law by misinterpreting Section 301(f) of the Act to require Claimant to
file a claim petition within 300/600 weeks to claim benefits for cancer pursuant to
Section 108(r); and (2) assuming Section 301(f) does create a filing deadline,
whether the discovery rule applies to extend that time period. Consistent with our


                                          3
precedent, we find Section 301(f) does impose a time limit to file a claim petition
and that the statute of repose is not subject to the discovery rule. As a result,
Claimant was not entitled to the causation presumption because his claim petition
was outside the 300-week period.
           Act 46 of 20114 amended the Act to include Sections 108(r) and 301(f).
Section 108(r) amended the definition of “occupational disease” to specifically
include “[c]ancer suffered by a firefighter which is caused by exposure to a known
carcinogen which is recognized as a Group 1 carcinogen by the International
Agency for Research on Cancer.” 77 P.S. § 27.1(r). Section 301(f) provides that a
firefighter is entitled to benefits under Section 108(r), provided he can show: (1)
employment for four or more years in continuous firefighting duties; (2) direct
exposure to an IARC Group 1 carcinogen; and (3) that he passed a physical
examination prior to engaging in firefighting duties that did not reveal any
evidence of cancer. 77 P.S. § 414. Section 301(f) further provides:

                  Notwithstanding the limitation under subsection (c)(2) with
           respect to disability or death resulting from an occupational disease
           having to occur within three hundred weeks after the last date of
           employment in an occupation or industry to which a claimant was
           exposed to the hazards of disease, claims filed pursuant to cancer
           suffered by the firefighter under section 108(r) may be made within
           six hundred weeks after the last date of employment in an occupation
           or industry to which a claimant was exposed to the hazards of
           disease. The presumption provided for under this subsection shall
           only apply to claims made within the first three hundred weeks.
Id.




      4
          Act of July 7, 2011, P.L. 251.

                                             4
      Section 301(c)(2), which is referenced in the above excerpt, provides, in
pertinent part:

             That whenever occupational disease is the basis for
      compensation, for disability or death under this act, it shall apply only
      to disability or death resulting from such disease and occurring within
      three hundred weeks after the last date of employment in an
      occupation or industry to which he was exposed to hazards of such
      disease ….

77 P.S. § 411(2). The Pennsylvania Supreme Court in City of McKeesport v.
Workers’ Compensation Appeal Board (Miletti), found that Section 301(c)(2)
merely requires the disability to “occur” or manifest within 300 weeks of last
exposure. City of McKeesport, 746 A.2d 87, 89 (Pa. 2000). It does not require the
claim petition to also be filed within 300 weeks. Id. at 90-91.
      Claimant argues the addition of Section 301(f) expands the manifestation
period found in Section 301(c)(2) from 300 weeks to 600 weeks for claims brought
pursuant to Section 108(r) and does not require the claim petition to actually be
filed within 300 weeks to be entitled to the causation presumption, as the Board
found. Claimant argues he is entitled to the presumption because the disease
manifested within the 300 weeks common to all occupational diseases and the
claim petition was filed within 21 days of Claimant learning his disease was work-
related. To hold otherwise, Claimant argues, treats firefighters differently than all
other occupational disease claimants.
      As a preliminary matter, we are cognizant that there are similarities in the
language of Section 301(c)(2) and Section 301(f). For instance, both provisions
include language that the relevant time period begins to run “after the last date of
employment in an occupation or industry to which he was exposed to hazards of

                                          5
such disease.” 77 P.S. §§ 411(2), 414. However, the inclusion of the same phrase
alone does not necessitate a finding that the two sections should be similarly
construed as to do so would ignore differences in the sections’ plain language. In
Fargo v. Workers’ Compensation Appeal Board (City of Philadelphia), we
discussed those differences. Fargo, 148 A.3d 514, 519-20 (Pa. Cmwlth. 2016).
Whereas Section 301(c)(2) simply requires the disability to “occur[]” or manifest,
the plain language of Section 301(f) requires the claim be “made,” that is filed.5
See id. (comparing Section 301(c)(2)’s use of the term “occurring” with Section
301(f)’s use of the term “claims . . . made.”).
       In Fargo, we rejected a similar attempt to construe Section 301(f) as an
extension of the manifestation period found in Section 301(c)(2) and instead found
the two sections contain two distinct limitation periods. Id. at 520. “[T]he key
difference between these two provisions is not the date upon which the limitations
periods start but rather what must take place before the periods end. . . .” Id. In
Fargo, we held, inter alia, that in addition to having to satisfy the 300-week
manifestation period set forth in Section 301(c)(2), a claimant must also satisfy the
distinct “two-tiered limitations period” found Section 301(f). Id. Under Section
301(f), a claimant must file the claim within 300 weeks of last exposure to the
Group 1 carcinogen. Id. We stated:

       if the claimant fails to do so, he is not foreclosed from bringing a
       claim by Section 301(f), but he loses the statutory presumption of
       Sections 301(e) and 301(f). However, if the claimant does not file the

       5
         Claimant argues the Board misconstrued the phrase “claims filed pursuant to cancer
suffered by the firefighter under section 108(r)” in Section 301(f) and placed undue emphasis on
the word “filed.” We agree that the phrase merely describes the occupational disease at issue –
cancer caused by Group 1 carcinogens. However, Claimant ignores the plain language of the
Act, which requires such claims to be “made,” i.e. filed.

                                               6
      claim until more than 600 weeks after the date of last workplace
      exposure, the claimant is foreclosed from bringing that claim in its
      entirety.

Id. The decision in Fargo is consistent with our decisions in Hutz v. Workers’
Compensation Appeal Board (City of Philadelphia), 147 A.3d 35 (Pa. Cmwlth.
2016), and Demchenko v. Workers’ Compensation Appeal Board (City of
Philadelphia), 149 A.3d 406 (Pa. Cmwlth. 2016). See also Capaldi v. Workers’
Compensation Appeal Board (City of Philadelphia), __ A.3d __, __ (Pa. Cmwlth.,
No. 787 C.D. 2016, filed Jan. 9, 2017), slip op. at 16-17 (applying Hutz and
Demchenko).
      To the extent Section 301(f) creates a filing deadline, as we have found,
Claimant argues the limitation should be tolled by the discovery rule.         Like
Claimant’s first argument, we have already rejected this argument as well. See
Fargo, 148 A.3d at 521 (finding the 600-week limitations period in Section 301(f)
acts as a statute of repose, which is not subject to the discovery rule). Because we
are bound by our precedent, we will not disturb that decision.
      Because Claimant filed his claim petition more than 300 weeks after he was
last exposed to any Class 1 carcinogens at work, he was not entitled to a
presumption that the exposure caused his cancer. Rather, Claimant had the burden
to establish a causal connection. The WCJ, as factfinder, found the testimony of
Employer’s expert on causation more credible than the testimony of Claimant’s
expert and therefore found Claimant did not carry his burden.
      For these reasons, we affirm the decision of the Board.



                                      ________________________________
                                      RENÉE COHN JUBELIRER, Judge
                                         7
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Stanley Szymanski,                  :
                         Petitioner :
                                    :
                   v.               :    No. 494 C.D. 2016
                                    :
Workers’ Compensation Appeal        :
Board (City of Philadelphia),       :
                         Respondent :


                                 ORDER


      NOW, February 14, 2017, the order of the Workers’ Compensation Appeal
Board in the above matter is AFFIRMED.




                                    _______________________________
                                    RENÉE COHN JUBELIRER, Judge
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Stanley Szymanski,                        :
                 Petitioner               :
                                          :
             v.                           :
                                          :
Workers’ Compensation Appeal              :
Board (City of Philadelphia),             :   No. 494 C.D. 2016
                   Respondent             :   Submitted: September 30, 2016



BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE JOSEPH M. COSGROVE, Judge



OPINION NOT REPORTED


DISSENTING OPINION
BY JUDGE COSGROVE                             FILED: February 14, 2017




             Since I cannot agree with the Majority’s opinion that the discovery
rule does not apply in a case such as this, I must dissent. Claimant argues that, if
indeed Section 301(f) creates a filing deadline, the discovery rule should apply to
extend that deadline. The Majority rejects this position, holding that “[b]ecause we
are bound by our precedent [announced in Fargo v. Workers’ Compensation
Appeal Board (City of Philadelphia), 148 A.3d 514 (Pa. Cmwlth. 2016) which
found the time limitations in Section 301(f) act as a statute of repose, which is not
subject to the discovery rule], we will not disturb that decision.”
              I agree that we are bound by “our precedent,” but we are not
imprisoned by it.
                                   1
              Act 46 of 2011           offered broad amendment to the Workers’
Compensation Act (Act) to address “[c]ancer suffered by a firefighter…” Given
the elusively evil nature of cancer and the need to protect first responders such as
firefighters, these amendments must be read in a manner which gives full effect to
the legislative intent. Nothing in that legislation suggests an intent to foreclose
application of the discovery rule in a case such as that present, but instead aims
toward a wide path for possible recovery. As such, application of the discovery
rule in this case is not only allowable, it is necessary. Doing otherwise, we fill
perceived legislative gaps with judicial caulk, something best left to the General
Assembly and not judges.

              The discovery rule is rooted in equitable principles, which address
“the ability of the damaged party, exercising reasonable diligence, to ascertain the
fact of a cause of action.”        Pocono International Raceway, Inc. v. Pocono
Products, Inc., 468 A.2d 468, 471 (Pa. 1983). Since neither the case sub judice nor
Fargo have given due consideration to the equitable nature of these principles, the
present decision is unnecessarily flawed. Before we venture further down this road
in our interpretation of Act 46, it is important for this court to examine this
question as a full body, not through the three-judge decisions in this case and


       1
          Act 46 of 2011 amended Section 108 of the Workers’ Compensation Act (Act) by
further defining the term “occupational disease” to include cancer suffered by a firefighter
caused by exposure to a known carcinogen recognized as a Group 1 carcinogen by the
International Agency for Research on Cancer (IARC). Act of June 2, 1915, P.L. 736, as
amended, 77 P.S. §27.1(r).


                                         JMC - 2
Fargo, whether deemed precedential or not. Until that happens, I will continue to
question the soundness of an opinion which I believe runs counter to what the
legislature intended. I therefore dissent.



                                        ___________________________
                                        JOSEPH M. COSGROVE, Judge




                                       JMC - 3
