           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


East Hempfield Township,                        :
                       Petitioner               :
                                                :
                v.                              :   No. 1058 C.D. 2017
                                                :   Submitted: December 22, 2017
Workers’ Compensation Appeal                    :
Board (Stahl),                                  :
                      Respondent                :


BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                                FILED: June 1, 2018


                East Hempfield Township (Employer) petitions for review of an order
of the Workers’ Compensation Appeal Board (Board), which affirmed a decision of
the Workers’ Compensation Judge (WCJ), thus granting Kenneth Stahl’s (Claimant)
claim petition for benefits under the Workers’ Compensation Act (Act).1 For the
reasons discussed below, we vacate and remand.
                Claimant began working as a volunteer firefighter for Employer
in 2002. Prior to joining Employer, Claimant worked as a volunteer firefighter for
other fire departments since 1974. In 2006, Claimant’s family physician diagnosed
Claimant with stomach cancer.            Following his diagnosis, Claimant underwent

      1
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
surgery and radiation therapy to treat his illness. After being unable to work for
approximately six weeks, Claimant returned to work for Employer as a fire police
officer and no longer assumed the duties of a firefighter. Claimant later chose to
retire, with his last day of employment being October 29, 2008.
              On November 10, 2014, Claimant filed a claim petition, alleging that
he sustained stomach cancer due to exposure to carcinogens during his tenure as a
volunteer firefighter for Employer. (Reproduced Record (R.R.) at 1a-5a.) In so
doing, Claimant sought payment of medical bills and full disability benefits from
April 1 to June 1, 2006. (Id.) Employer opposed Claimant’s petition, and a WCJ
scheduled a hearing.      In support of his claim petition, Claimant testified via
deposition.
              Claimant testified that during his tenure as a firefighter, he was exposed
to smoke and diesel fuel emissions. (Id. at 175a-84a.) After being diagnosed with
stomach cancer, Claimant transferred to the fire police position, as he “didn’t want
to risk going into anymore [sic] smoke . . . as a firefighter.” (Id. at 203a.) Claimant
testified that, as early as 2006 or 2007, he suspected there might be a connection
between his firefighting duties and his stomach cancer. (Id. at 241a.)
              Claimant testified that sometime after July 2011, he read an article
discussing Pennsylvania’s passage of a law regarding cancer in firefighters and how
it may affect their rights under the Act. (Id. at 226a.) After reading this article,
Claimant again suspected a connection between his service as a firefighter and his
cancer diagnosis. (Id.) Thereafter, Claimant sought the services of an attorney to
discuss his workers’ compensation rights, and Claimant entered into a fee agreement
with counsel on August 5, 2012. (Id. at 251a.)




                                           2
             Claimant further testified that on September 16, 2014, a doctor
confirmed Claimant’s beliefs regarding the relationship between Claimant’s cancer
and his service as a firefighter. (Id. at 194a.) This was the first time Claimant
received any indication from a doctor that his service as a firefighter caused his
cancer. (Id.) Thereafter, Claimant filed his claim petition. (Id. at 1a.)
             By decision and order dated August 31, 2015, the WCJ granted
Claimant’s claim petition. (Id. at 58a.) Employer appealed to the Board. By opinion
and order dated July 20, 2016, the Board opined that the WCJ erred in applying an
inapplicable presumption to Claimant’s claim and remanded the matter to the WCJ
to render a determination without applying the presumption. (Id. at 64a.)
             On remand, the WCJ again granted Claimant’s claim petition.
(Id. at 74a.) In so doing, the WCJ made the following pertinent conclusions of law:
             6. The “discovery rule” referenced by the Pennsylvania
             Supreme Court in Price v. [Workmen’s Compensation
             Appeal Board], 626 A.2d 114 ([Pa.] 1993) is equally
             applicable to Claimant’s obligation to establish that notice
             of the work-related disease was provided to Employer in
             accordance with Section 311 of the Act[, 77 P.S. § 631].
             Whether an employee has provided timely notice is a
             mixed question of law and fact. The courts had indicated
             that the 120-day notice period does not begin to run until
             an employee “knows or by the exercise of reasonable
             diligence, has reason to know of the injury and its possible
             relationship to [his] employment.” Reasonable diligence
             has been defined as a reasonable effort to discover the
             cause of an injury under the facts and circumstances
             present in the case. In The Bullen Companies v. [Workers’
             Compensation Appeal Board] (Hausmann), 960 A.2d 488
             (Pa. Cmwlth. 2008), [appeal denied, 972 A.2d 523
             (Pa. 2009),] the court relying on Sell [v. Workers’
             Compensation Appeal Board (LNP Engineering),
             771 A.2d 1246 (Pa. 2001),] noted that the “Section 311
             rule requires more than an employees’ suspicion, intuition
             or belief.” Likewise, in A&J Builders, Inc. v. [Workers’

                                          3
             Compensation Appeal Board] (Verdi), [78 A.3d 1233 (Pa.
             Cmwlth. 2013)], the court siting [sic] Sell reiterated that a
             claimant’s obligation to provide notice started with the
             receipt of a medical opinion confirming the injury and its
             relationship to the job.
             ....
             7. This [WCJ] had previously concluded, and the [Board]
             affirmed this conclusion, that Claimant provided timely
             notice in the instant dispute. Specifically, although
             Claimant knew of a possibility that his cancer may have a
             link to his firefighting activities as evidenced by his
             acknowledgement he changed jobs because of a fear of
             recurrence or his acknowledgement that he had read an
             article about the passage of Act 46, it was not until he
             received a copy of the report prepared by [a doctor] dated
             September 16, 2014 that he knew that there was the causal
             link between his cancer and the firefighting activity and as
             such the 120[-]day notice period did not begin to run until
             September 16, 2014. The Claim Petition, which Employer
             contends was the first notice it received of this claim, was
             filed on November 10, 2014, well within the 120-day
             notice period, but after the applicable 21-day notice set
             forth in [S]ection 311 of the Act.
(Id. at 80a-81a (emphasis added) (internal citations omitted).)
             Employer appealed this decision to the Board, alleging that some of the
WCJ’s factual findings were unsupported by substantial evidence and that the WCJ
made multiple errors of law. (Id. at 85a-86a.) Among Employer’s challenges, it
argued that the WCJ erred in concluding that Claimant provided sufficient notice to
Employer of his cancer within 120 days, as required by Section 311 of the Act. By
opinion and order dated July 6, 2017, the Board affirmed the WCJ’s decision.
(Id. at 90a.) Regarding Employer’s argument that Claimant failed to provide timely
notice, the Board reasoned:
             [Employer] also argues that the WCJ erred in finding that
             Claimant provided timely notice of his alleged cancer
             within 120 days as required by Section 311 of the
             Act, 77 P.S. § 631. We addressed this argument in our
                                          4
              prior Opinion in this matter. We noted that the WCJ found
              that the notice period did not begin to run until Claimant
              received a copy of [a doctor’s] report on
              September 16, 2014, informing him of the causal link
              between his cancer and firefighting. We noted that in
              occupational disease matters, it is generally recognized
              that the notice period does not begin to run until the
              claimant is advised by a physician that he has an
              occupational disease and that it is related to his work. We
              noted Claimant’s testimony that although he felt that there
              might be a connection between his cancer and firefighting,
              this suspicion was not confirmed until he received a letter
              from his attorney and a report from [a doctor] in
              September 2014. Before receiving this information, he
              had never been informed by any doctor that his cancer was
              related to his exposures as a firefighter. [The doctor’s]
              report was dated September 16, 2014, and Claimant filed
              his Claim Petition on November 7, 2014, well within
              the 120-day time period proscribed [sic] by Section 311.
              As such, Claimant provided timely notice of his claim.

(Id. at 99a-100a (emphasis added) (internal citations omitted).)
              Employer then filed the instant appeal. On appeal,2 Employer argues
that the Board erred in concluding that Claimant provided adequate notice of his
cancer. Specifically, Employer argues that the Board erred by failing to analyze
whether Claimant exercised reasonable diligence to discover the origins of his
cancer.
              Notice of a work-related injury is a prerequisite to receiving workers’
compensation benefits, and the claimant bears the burden of showing that proper
notice was given.        Gentex Corp. v. Workers’ Comp. Appeal Bd. (Morack),
23 A.3d 528, 534 (Pa. 2011). The timing of the notice is governed by Section 311

       2
         This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence.           Section 704 of the Administrative Agency
Law, 2 Pa. C.S. § 704.

                                               5
of the Act, which provides, in part, that a claimant must provide notice within 120
days of either the date of the injury or the date at which the claimant “knows, or by
the exercise of reasonable diligence should know, of the existence of the injury and
its possible relationship to his employment.”3 The discovery rule under Section 311
allows that “employees who suffer an injury that is not readily and immediately
ascertainable have the same rights under the Act as those employees who sustain an
injury . . . as long as they proceed with reasonable diligence.” Sell, 771 A.2d at 1251.
The standard of reasonable diligence requires “a reasonable effort to discover the
cause of an injury under the facts and circumstances present in the case.” Id.
(quoting Cochran v. GAF Corp., 666 A.2d 245, 249 (Pa. 1995)) (internal quotations
omitted). While reasonable diligence is an objective standard, “it is sufficiently
flexible to take into account the different capacities people have to deal with the
circumstances they confront.” Id. In order to trigger the running of the 120-day
period for notice, a claimant must have:                     (1) knowledge or constructive
knowledge, (2) of a disability, (3) which exists, (4) which results from an
occupational disease or injury, and (5) which has a possible relationship to the

       3
           Section 311 of the Act, relating to providing notice of injury to an employer, provides:
       Unless the employer shall have knowledge of the occurrence of the injury, or unless
       the employe or someone in his behalf, or some of the dependents or someone in
       their behalf, shall give notice thereof to the employer within twenty-one days after
       the injury, no compensation shall be due until such notice be given, and, unless
       such notice be given within one hundred and twenty days after the occurrence of
       the injury, no compensation shall be allowed. However, in cases of injury resulting
       from ionizing radiation or any other cause in which the nature of the injury or its
       relationship to the employment is not known to the employe, the time for giving
       notice shall not begin to run until the employe knows, or by the exercise of
       reasonable diligence should know, of the existence of the injury and its possible
       relationship to his employment. The term “injury” in this section means, in cases
       of occupational disease, disability resulting from occupational disease.
77 P.S. § 631.

                                                  6
employment. Allegheny Ludlum Corp. v. Workers’ Comp. Appeal Bd. (Holmes),
998 A.2d 1030, 1034 (Pa. Cmwlth.), appeal denied, 13 A.3d 480 (Pa. 2010).
             Here, the Board failed to properly analyze the issue of whether
Claimant provided timely notice pursuant to Section 311 of the Act. In its opinion,
the Board noted that “the notice period does not begin to run until the claimant is
advised by a physician that he has an occupational disease and that it is related to his
work.” (R.R. at 100a.) In support of this assertion, the Board cited Sell and
Hausmann. (Id.) Neither of these cases, however, directly support such an assertion,
and this Court has previously stated as much.                See Allegheny Ludlum
Corp., 998 A.2d at 1035-36 (“We do not believe that Sell stands for the broad
proposition that a claimant may not be charged with knowledge of the connection
between an injury and the claimant’s work until the claimant receives an expert
medical opinion.”).
             In Sell, the claimant (Sell) was a smoker who suffered from tightness
in her chest, sore throat, coughing, and a runny nose. Sell worked with formaldehyde
as part of her job, and she suspected that the chemicals she worked with might be
causing some of her symptoms. Eventually, Sell was diagnosed and hospitalized for
emphysema. Sell never discussed the cause of her emphysema with her treating
physicians during her hospitalization. Following her hospitalization, Sell did not
return to work, but she began looking “for a physician with knowledge of the
chemicals and dust in her work environment,” whom she did not find until almost
nine months after she left work. That physician informed Sell that she could return
to work if she exercised caution with regard to her exposure to formaldehyde, and
Sell then informed her employer of this limitation and how formaldehyde had
affected her health. Sell, 771 A.2d at 1249. The Supreme Court held that Sell could


                                           7
not be charged with knowledge of her work-related injury until she received the
physician’s opinion that her exposure to formaldehyde aggravated her emphysema.
Id. at 1253. In so holding, the Supreme Court opined:
            When read in its entirety, the record establishes that at the
            time Sell’s emphysema was diagnosed, she was a
            layperson who thought that the formaldehyde in her work
            environment was harmful. Aware that she held an
            uninformed view, Sell sought out an expert who could tell
            her whether she was correct to think so. In the exercise of
            reasonable diligence, and with notable persistence, Sell
            located . . . a physician who confirmed her suspicions
            about     formaldehyde       and    informed      her      on
            August 31, 1993[,] that exposure to the chemical
            exacerbated her emphysema. As the WCJ found, it was at
            this point, with a medical diagnosis in hand, that Sell had
            the knowledge that § [311] requires.

Id. at 1254 (emphasis added). Although the Supreme Court determined that the
claimant in Sell only had the requisite knowledge to provide notice after receiving
the physician’s diagnosis, it was paired with the finding that Sell proceeded with
reasonable diligence in acquiring that knowledge. Id.
            Similarly, in Hausmann, the claimant had a kidney condition that he
suspected to be related to his employment. Two years later, a physician confirmed
the claimant’s suspicions. On appeal, this Court affirmed a WCJ’s finding that the
claimant did not know his condition was job related until receiving the physician’s
confirmation. Hausmann, 960 A.2d at 493. In so holding, this Court opined:
            The record in this case fully supports the WCJ’s finding
            that [the c]laimant did not know that his disease was job
            related until [a physician] so advised him in March 2005.
            Employer’s contention to the contrary is based solely on
            [the c]laimant’s testimony that he suspected in 2002 that
            his kidney problem was related to his job. As the Supreme
            Court held in Sell, however, Section 311’s discovery rule
            requires more than an employee’s suspicion, intuition or
            belief.
                                          8
Id. Although this Court in Hausmann did acknowledge that the 120-day notice
period begins to run when a doctor advises a claimant of the work-relatedness of the
injury, this Court did not hold that the 120-day notice period can only begin to run
at that point. Further, the issue of whether the claimant should have known of the
work-relatedness of his injury through the exercise of reasonable diligence was not
addressed.
             While it is true that sufficient knowledge for the purposes of notice
requires more than an employee’s suspicion, to hold that the 120-day notice period
can only begin once a claimant receives a physician’s confirmation would be
illogical. Such a holding would not only provide a claimant with a potentially
unlimited timeframe in which to provide notice, but it would also serve to nullify the
reasonable diligence requirement of Section 311 of the Act. Had the General
Assembly intended to require a physician’s confirmation to serve as the start of the
notice period, it could have included straightforward language in the Act to that
effect.
             Here, Claimant testified that sometime after July 2011, he read an
article discussing Pennsylvania’s passage of a law regarding cancer in firefighters
and how it may affect their rights under the Act. (R.R. at 226a.) Thereafter,
Claimant sought the services of an attorney to discuss his workers’ compensation
rights and entered into a fee agreement with counsel on August 5, 2012.
(Id. at 251a.) Then, two years after entering into a fee agreement, Claimant received
a medical confirmation of the correlation between his firefighting duties and
stomach cancer on or about September 16, 2014. (R.R. at 193a-94a, 269a-70a.)
Claimant filed his claim petition on November 4, 2014, well within 120 days of
finally receiving a physician’s confirmation. (Id. at 1a.) The crux of the issue


                                          9
relating to notice, however, is not when did Claimant actually know of the
work-relatedness of his injury, but when Claimant, through the exercise of
reasonable diligence, should have known the work-relatedness of his injury. See
Delaware Cty. v. Workers’ Comp. Appeal Bd., 808 A.2d 965, 970
(Pa. Cmwlth. 2002), appeal denied, 825 A.2d 1262 (Pa. 2003). Claimant’s actions
from July 2011 to August 2012 could be interpreted as Claimant having more than
just a bare suspicion regarding the work relatedness of his injury, more so than that
which Sell held to be insufficient. In answering this inquiry, it must be determined
whether Claimant made a reasonable effort to discover the cause of his injury under
the facts and circumstances present in the case. See Sell, 771 A.2d at 1251. Both
the WCJ and the Board failed to answer this critical inquiry.
             Accordingly, we vacate the Board’s order and remand the matter to the
Board with instructions that the Board remand the matter to the WCJ for the WCJ to
issue a new decision.




                                         P. KEVIN BROBSON, Judge




                                         10
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


East Hempfield Township,                 :
                       Petitioner        :
                                         :
            v.                           :   No. 1058 C.D. 2017
                                         :
Workers’ Compensation Appeal             :
Board (Stahl),                           :
                      Respondent         :



                                    ORDER


            AND NOW, this 1st day of June, 2018, the order of the Workers’
Compensation Appeal Board (Board) is hereby VACATED. The above-captioned
matter is REMANDED to the Board with instructions that the Board remand the
matter to the Workers’ Compensation Judge (WCJ) for the WCJ to issue a new
decision and order.
            Jurisdiction relinquished.




                                         P. KEVIN BROBSON, Judge
