             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


William Campbell,                        :
                    Petitioner           :
                                         :   No. 1031 C.D. 2016
            v.                           :
                                         :   Submitted: November 18, 2016
Workers’ Compensation Appeal             :
Board (City of Philadelphia),            :
                   Respondent            :


BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge




OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                      FILED: March 3, 2017


            William Campbell (Claimant) petitions for review of the June 10,
2016, order of the Workers’ Compensation Appeal Board (Board) affirming the
decision of the Workers’ Compensation Judge (WCJ) denying the claim petition
filed against the City of Philadelphia (Employer).


                          Facts and Procedural History
            Claimant filed a claim petition on October 5, 2012, alleging “direct
exposure to IARC Group 1 carcinogens while working as a firefighter.” (WCJ’s
Finding of Fact (F.F.) No. 1.) Although there was no injury description in the
claim petition, Claimant amended the claim petition orally at a hearing before the
WCJ so that the description of injury included, “melanoma of the right lower
leg…[and] melanoma of the low back.” (WCJ’s F.F. No. 1, fn 1.) Employer filed
a timely answer denying all material allegations as well as raising numerous
affirmative defenses. (WCJ’s F.F. No. 2.)
               Claimant testified by deposition in the proceedings before the WCJ,
confirming just over thirty-five years of service with Employer’s Fire Department,
starting in January of 1969 and retiring on March 30, 2004. (WCJ’s F.F. No.
16(a), (r).)
               Claimant began service as a firefighter and progressed in promotions
to lieutenant, captain, and battalion chief, working in each position in a firehouse
and not an office. His service resulted in his exposure to diesel fuel emissions,
smoke and fumes from house fires, office building fires, refinery fires, automobile
and truck fires, and fires of many other kinds, and second-hand smoke from fellow
firefighters at fire houses where he served. He never smoked but his wife did and
does. (WCJ’s F.F. No. 16.)
               Claimant testified that he only occasionally wore a self-contained
breathing apparatus (SCBA) because even when available, the devices impeded
communication and made it “more dangerous climbing the ladder and operating up
there.” (WCJ’s F.F. No. 16(m).)
               Claimant and his family regularly vacationed at the beach in Sea Isle
City, New Jersey, for twenty-three years, but he asserted that he always protected
himself from sun exposure because he was a “fair haired Irishman…[with] red hair
and freckles.” (WCJ’s F.F. No. 16(w), (gg).)
               There was no evidence that Claimant suffered from or was treated for
any cancer during his career with Employer. He was first diagnosed with cancer in


                                          2
the form of melanomas in January of 2007, October of 2008, and October of 2011,
and following surgical excision in each instance, there was no spread of the
disease. (WCJ’s F.F. No. 16 (b), (p), (q), (r).)
               Claimant testified that until he received a letter in October of 2012
from Claimant’s counsel that enclosed a report from Dr. Singer, he had no idea that
his cancer and his service as a firefighter were related. (WCJ’s F.F. No. 16(s).)
               In support of his claim petition, Claimant offered a report from Dr.
Singer dated September 19, 2012. Board-certified in internal medicine (with a
subspecialty in hematology and oncology), Dr. Singer never examined Claimant
but did review an array of records as well as affidavits from Claimant and records
from Claimant’s family and treating physicians. Dr. Singer concluded, “it is my
opinion that Mr. Campbell’s exposures to carcinogens while working for the City
of Philadelphia was [sic] a substantial contributing factor in the development of his
melanomas…I hold all my opinions within a reasonable degree of medical
certainty.” (WCJ’s F.F. No. 18, quoting Dr. Singer’s September 19, 2012, report,
R.R. at 30.)
               Claimant also offered a report from Virginia Weaver, M.D., dated
March 28, 2012. Board-certified in occupational medicine and internal medicine,
Dr. Weaver did not examine Claimant either, and she provided an opinion that “a
wide range of chemicals classified as known or probable human carcinogens by the
International Agency for Research on Cancer (IARC)…are found in smoke from
burning structures, including buildings and automobiles.” She also wrote that the
protection provided by equipment worn by firefighters is incomplete. She also
stated that exposure to probable human carcinogens was greater in the past, when
it was not known that carcinogen exposure continues in the “overhaul” phase of


                                           3
extinguishing a blaze and when firefighters routinely removed their respiratory
protection to better assess the potential for re-ignition. (WCJ’s F.F. Nos. 20, 21.)
               Preliminarily, Employer argued for dismissal of the claim petition
based on the following grounds. First, Employer argued that Claimant provided
inadequate notice because the purported notice was a letter from Claimant’s
counsel dated November 2, 2011 (Claimant’s exhibit C-9), and that letter preceded
any written notice by any medical professional of the work-relatedness of the
claim. The report from Barry Singer, M.D, dated September 19, 2012, connected
Claimant’s injury and disability to his job as a sanitation laborer. (Reproduced
Record (R.R.) at 27-30.)
               Next, Employer argued preliminarily that the claim petition should be
dismissed because Dr. Singer’s testimony should be precluded as incompetent
under Rule 702 of the Pennsylvania Rules of Evidence and Frye v. United States,
293 F. 1013 (D.C. Cir. 1923).               Focusing solely on this preliminary matter,
depositions of Dr. Singer and Tee Guidotti, M.D. (testifying on behalf of
Employer) yielded twenty-six pages of single-spaced findings of fact by the WCJ,
who ruled that ‘the opinions rendered by Dr. Singer do have ‘general acceptance in
the particular field in which it belongs,’ and therefore the [Employer’s] Frye
motion is denied.”1 (WCJ’s F.F. No. 15.)

       1
         As our Supreme Court stated in Grady v. Frito–Lay, Inc., 839 A.2d 1038 (Pa. 2003):
“The Frye test ... is part of [Pennsylvania Rule of Evidence 702 and u]nder Frye, novel scientific
evidence is admissible if the methodology that underlies the evidence has general acceptance in
the relevant scientific community.” Id. at 1043–44. The proponent of scientific evidence must
demonstrate that the “methodology an expert used is generally accepted by scientists in the
relevant field as a method for arriving at the conclusion the expert will testify to at trial.” Id. at
1045. However, the proponent of the evidence is not required to “prove that the scientific
community has also generally accepted the expert's conclusion.” Id. Also, the testimony must be
(Footnote continued on next page…)
                                                  4
Employer did not offer any testimony in its case in chief, but did present materials
from two physicians who treated or assisted in treating Claimant. In his progress
note of January 29, 2007, Stephen Hess, M.D., discussed a biopsy on Claimant’s
right calf on January 17, 2007, which revealed a melanoma where Claimant told
him he had had a mole present since childhood. The mole had recently become
darker but did not change in size. Claimant reported to Dr. Hess “a history of
extensive sun exposure throughout his lifetime as he is an avid golfer, fisherman,
and spends a significant amount of time at the shore.”            Dr. Hess recommended
surgical excision and “avoidance of unnecessary exposure including use of sun-
protective clothing and sunscreen.” (WCJ’s F.F. No. 23.)
              Employer also presented a report from Diane Hershock, M.D., dated
at an unspecified day in March of 2007. She confirmed treatment of the “recently
diagnosed melanoma,” and noted Claimant’s “extensive sun exposure history as he
is an avid golfer and fisherman. He has had multiple blistering burns in the past
and did have a nevus on his lower leg which he had for years.” On physical
examination, Dr. Hershock noted the surgical scar on Claimant’s right posterior
calf as well as “severe freckling in the sun exposed areas.” She concluded, “We
also had a lengthy discussion concerning his lengthy sun exposure and the
alteration that will need to occur in his lifestyle since he remains an avid golfer and
fisherman.” (WCJ’s F.F. No. 24.)




(continued…)

given by “a witness who is qualified as an expert by knowledge, skill, experience, training or
education....” Id.



                                              5
               In his decision and order circulated January 7, 2015, the WCJ implied
that Claimant neither knew nor should have known of the “possible relationship to
his employment” until August 26, 2011 (68 days before the notice letter) and so
overruled Employer’s objections and found that notice was given properly by
means of the letter of November 2, 2011, pursuant to Section 311 of the Workers’
Compensation Act (Act).2 Otherwise, the WCJ found the Claimant credible, and
found Dr. Weaver credible,
               as to the limited issues addressed in her report. However,
               this Judge finds her report provides no material evidence
               as to the claim at issue, specifically William
               Campbell….Dr. Weaver…never examined the Claimant,
               never reviewed any medical record relevant to the
               Claimant; never reviewed records from the City of
               Philadelphia Fire Department[,] and performed no
               research relevant to the Commonwealth of Pennsylvania.
               Rather, her reports contained anecdotal evidence relative
               to firefighters in Virginia, Colorado and Maine.

(WCJ’s F.F. Nos. 4, 5, 22.)
               The WCJ rejected the reports of Dr. Singer as “woefully insufficient
to establish a causal connection between the specific duties of the Claimant as a
firefighter for the City of Philadelphia and his diagnosis of melanoma without the
benefits of the presumption set forth in section 301(f)…” (WCJ’s F.F. No. 25.)
               Specifically, in rejecting the findings and conclusions of Dr. Singer,
the WCJ, inter alia, considered the following:

               (b) He failed to perform a physical examination of the
               Claimant.



      2
          Act of June 2, 1915, P.L.736, as amended, 77 P.S. §631.


                                               6
             (c) He failed to obtain an occupational history from the
             Claimant, which included a tour of duty in the Army and
             work as a pipefitter at the Philadelphia Navy Yard prior
             to entering the fire department.

             (d) He failed to address, in any form or fashion, the
             interplay between the Claimant’s extensive exposure to
             sun while NOT performing the duties of a firefighter and
             his alleged exposure while performing his duties as a
             City of Philadelphia firefighter.

             (e) He failed to review complete medical records for the
             Claimant. He did not request, obtain or review medical
             records which pre-date the diagnosis of malignant
             melanoma nor did he review current medical records for
             the treatment being received by the Claimant….

             (f) He based his conclusion of ‘substantial contributing
             factor’ upon limited facts obtain [sic] from a one page
             affidavit.
(WCJ’s F.F. No. 25.) (Emphasis in original.)
             Accordingly, while the WCJ found Claimant to have thirty-five years
of service as a firefighter after having undergone and passed a pre-employment
physical examination, she found he was not entitled to the presumption of Section
301(f) of the Act, 77 P.S. §414, because he failed to file his claim petition within
300 weeks from Claimant’s last date of employment as a firefighter. Rather,
Claimant did not file his petition until just over 444 weeks from his last date of
employment as a firefighter (March 30, 2004, until October 5, 2012). (WCJ’s F.F.
Nos. 26, 27, 28, 29.)




                                         7
                Claimant appealed to the Board, which affirmed. Neither of the
preliminary matters was the subject of any appeal to the Board or this Court.
Claimant now appeals to this Court.3
                Claimant has narrowed his discussion to two issues: (1) “Whether the
[Board] committed an error of law by misinterpreting Section 301(f) of the Act to
require a Firefighter to file a petition within 300 weeks to claim benefits for cancer
pursuant to Section 108(r) of the Act with the rebuttable presumption of
compensability;” and, (2) “Whether the Discovery Rule applies to extend the time
that a Firefighter diagnosed with cancer pursuant to Section 108(r)4 has to file a
Claim Petition if, as found by the [Board], Section 301(f) creates a limitation on
the time a Firefighter has to file a Petition.”


                                           Discussion
                               The Rebuttable Presumption
                Section 301(f) of the Act lays out the particulars for cancer claims by
firefighters under Section 108(r) of the Act. The requirements include at least four
years of continuous firefighting service, having “successfully passed a physical
examination prior to asserting a claim under this subsection or prior to engaging in
firefighting duties and the examination failed to reveal any evidence of the
condition of cancer,” and a “cancer…which is caused by exposure to a known

       3
         Our scope of review is limited to determining whether findings of fact are supported by
substantial evidence, whether an error of law has been committed, or whether constitutional
rights have been violated. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704;
Meadow Lakes Apartments v. Workers’ Compensation Appeal Board (Spencer), 894 A.2d 214,
216 n.3 (Pa. Cmwlth. 2006).

       4
           Section 108 was added by the Act of October 17, 1972, P.L. 930, No. 223.


                                                8
carcinogen which is recognized as a Group 1 carcinogen by the International
Agency for Research on Cancer.”5           If a professional firefighter meets these
prerequisites, the Act provides as follows:

               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.

77 P.S. §414.

               This Court has held that the three hundred weeks for the presumption
in Section 301(f) is measured by the time between (1) Claimant’s “last date of
employment in an occupation or industry to which the claimant was exposed to the
hazards of disease,” and, (2) the date a claim petition is filed. Fargo v. Workers’
Compensation Appeal Board (City of Philadelphia), 148 A.3d 514, 520 (Pa.
Cmwlth. 2016), and, Hutz v. Workers’ Compensation Appeal Board (City of
Philadelphia), 147 A.3d 35, 52-53 (Pa. Cmwlth. 2016).
               Here, Claimant’s last date of employment was March 30, 2004. He
filed the claim petition on October 5, 2012, just over 444 weeks later. Thus, under




      5
          77 P.S. §§ 414 and 27.1.


                                           9
the terms of the statute, Claimant was barred from taking advantage of the
presumption set forth in Section 301(f) of the Act.
                           Discovery Rule Does Not Apply
               Claimant’s next argument on appeal is that “[i]f §301(f) is found to be
a limitations period, Petitioner avers that the [Board] committed an error by [sic]
law by failing to apply the discovery rule applicable to the limitations period for
occupational disease claims made pursuant to §301(c)(2) of the Act.” (Petition for
Review, ¶5.)
               In other words, Claimant argues that the discovery rule means that if
Claimant filed his claim petition within three years after learning that his cancer
may be compensable under the Act, then the time is measured under Section 315 of
the Act, 77 P.S. §602. Thus, Claimant’s assertion is that the three-year limitation
period is tolled, that is, the clock does not start ticking until he knew or should
have known of a work-related disease. Here, that means that because Claimant
learned of the possibly work-related nature of his cancer at some unspecified date
in October of 2012 (WCJ’s Finding of Fact No. 16(s)) and he filed his claim
petition on October 5, 2012, then his claim petition certainly is timely.

               Claimant questions why firefighters diagnosed with cancer have two
filing limitations. See, Brief for Petitioner, page 23, fn 5. Here, Claimant conflates
the statute of limitations in Section 315 with the statute of repose in Section 301(f).
They are not contradictory but complementary. Claimant’s argument was rejected
expressly by this Court in Fargo, which we will quote at length because the
reasoning is just as dispositive in the present case. In Fargo, we stated that:
               [T]he 600-week limitations period of Section 301(f) acts
               as a statute of repose and is not subject to a discovery
               rule under Price [v. Workmen’s Compensation Appeal
               Board (Metallurgical Resources), 626 A.2d 114 (Pa.
               1993)]. Our Supreme Court has explained the difference
                                          10
between a statute of limitations and a statute of repose as
follows:
      A statute of limitations is procedural and
      extinguishes the remedy rather than the
      cause of action. A statute of repose,
      however, is substantive and extinguishes
      both the remedy and the actual cause of
      action. Generally, the critical distinction in
      classifying a statute as one of repose or one
      of limitations is the event or occurrence
      designated as the “triggering” event. In a
      workers’ compensation claim, the common
      triggering event for statute of limitations
      purposes is the disability of the employee,
      which defines the accrual of the action. That
      is the point at which all the elements of the
      action have coalesced, resulting in a legally
      cognizable claim.
      A statute of repose, however, typically sets
      the triggering event as something other than
      the point at which the cause of action arises.
      Within the workers' compensation scheme,
      the common triggering event is the work-
      related incident/injury, regardless of whether
      disability results at that time. Thus, a statute
      of repose may also prevent the accrual of a
      cause of action where the final element
      necessary for its creation occurs beyond the
      time period established by the statute. At the
      end of the time period specified in the
      statute, the cause of action ceases to exist,
      unless the claimant can bring himself within
      any tolling provision enunciated in that
      statute.
Westinghouse Electric Corp./CBS v. Workers'
Compensation Appeal Board (Korach), 584 Pa. 411, 883
A.2d 579, 588 n.11 (2005) (citations omitted). The
“triggering event” for the purposes of Section 301(f) is
not the date of injury or disability, as in Section 315, but
rather the claimant's last day at work with exposure to a
known Group 1 carcinogen. A firefighter who contracts
                            11
            cancer may file a claim under Section 108(r) within 300
            weeks of the last workplace exposure and take advantage
            of the statutory presumption of compensability. In
            addition, the General Assembly provided a Section
            108(r) claimant an additional 300 weeks to file a claim
            albeit without the benefit of the statutory presumption.
            However, once 600 weeks elapse from the date of the last
            workplace exposure, the cause of action under Section
            108(r) ceases to exist.
            Claimant's argument that the 600-week limitation period
            of Section 301(f) was intended by the General Assembly
            to supersede Section 315 and Price is unsupported by the
            text of the Act as neither Section 301(f) nor Section
            108(r) state that Section 315 is inapplicable to Section
            108(r) claims. Furthermore, the 600-week limitation of
            Section 301(f) does not conflict with the application of
            the discovery rule to Section 315 as the three-year
            limitations period of Section 315 may still be tolled in
            Section 108(r) cases where the claimant was not aware of
            the nature of his occupational disease, provided that the
            claim is filed before the expiration of the 600-week
            period. However, simply because a discovery rule is
            applicable to Section 315 does not provide a basis for
            application of a discovery rule to Section 301(f),
            particularly where diagnosis and knowledge that a
            condition is work-related are irrelevant to the triggering
            event of the Section 301(f) limitations period, which is
            the last date of workplace exposure.

148 A.3d at 521-522.


                                   Conclusion
            Because Fargo is dispositive of the issues raised by Claimant, the
Board acted properly in affirming the WCJ’s decision.




                                       12
Accordingly, the order of the Board is affirmed.




                             ________________________________
                             PATRICIA A. McCULLOUGH, Judge




                           13
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


William Campbell,                      :
                    Petitioner         :
                                       :    No. 1031 C.D. 2016
            v.                         :
                                       :
Workers’ Compensation Appeal           :
Board (City of Philadelphia),          :
                   Respondent          :


                                    ORDER


            AND NOW, this 3rd day of March, 2017, the order of the Workers’
Compensation Appeal Board dated June 10, 2016, in the above matter is affirmed.




                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge
