           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Thomas Logan,                                  :
                             Petitioner        :
                                               :
              v.                               :   No. 2605 C.D. 2015
                                               :   Submitted: September 30, 2016
Workers' Compensation Appeal                   :
Board (City of Philadelphia),                  :
                         Respondent            :

BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                               FILED: March 9, 2017

              In this case, another in a series of appeals involving cancer claims
under Section 108(r) of the Workers’ Compensation Act (Act),1 Thomas Logan
(Claimant), a retired firefighter, petitions for review of an order of the Workers’
Compensation Appeal Board (Board) affirming an order of                              Workers'
Compensation Judge Scott Olin (WCJ) denying his claim for prostate cancer
caused by occupational exposure to known carcinogens during his employment as
a firefighter.     Claimant contends the decisions of the WCJ and Board are
unsupported by competent medical evidence and inconsistent with the applicable
case law. For the reasons that follow, we are compelled to affirm.

       1
         Act of June 2, 1915, P.L. 736, as amended, added by the Act of December 6, 1972, P.L.
930, 77 P.S. §27.1(r). Section 301(c)(2) of the Act, 77 P.S. §411(2), provides that the term
“injury” as used in the Act shall include an “occupational disease” as defined in Section 108 of
the Act. The Act of July 27, 2011, P.L. 251, commonly known as Act 46, amended Section 108
to include: “(r) Cancer 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).
                                     I. Background
                           A. Claim and Penalty Petitions
              In April 2012, Claimant filed a claim petition under Section 108(r) of
the Act alleging that he sustained prostate cancer in February 1997 as a result of
exposures to IARC (International Agency for Research on Cancer) Group I
carcinogens while working as a firefighter for the City of Philadelphia (Employer).
Claimant sought payment of all related medical bills, including ongoing medical
bills, and total disability benefits for the period of February 11 through May 1,
1997.     In October 2012, Claimant filed a penalty petition alleging Employer
violated the Act by failing to provide discoverable material.


                                      B. Evidence
              Based upon an extensive review of the evidence presented by both
parties, the WCJ dismissed Claimant’s claim and penalty petitions. Ultimately, the
WCJ determined Claimant’s medical evidence failed to establish his prostate
cancer was causally related to his firefighting duties.      To that end, the WCJ
rejected Claimant’s medical testimony as to causation of his cancer and accepted
Employer’s medical testimony that prostate cancer is much more a disease of aging
than it is of external influences.


              Claimant, 68 years old at the time of his testimony, stated he worked
for Employer as a firefighter for 34 years.          Claimant underwent a physical
examination when hired in 1970; he had no physical restrictions and no record of
cancer.    During his career, Claimant spent five years at Engine 53 and the




                                          2
remainder at Ladder 27. Both stations used diesel vehicles; Claimant therefore
encountered fuel emissions every shift he worked throughout his career.


            Claimant fought fires his entire career; he spent no time in an office
position. In total, Claimant responded to a couple thousand fires and suffered
smoke exposure at each one. These included interior, exterior and transformer
fires, which all involved exposure to several Group 1 carcinogens.


            In 1997, while assigned to Ladder 27, Claimant’s family doctors
diagnosed him with prostate cancer following a PSA (prostate specific antigen) test
and a biopsy. Claimant underwent a radical prostatectomy and missed about six
months of work. Claimant last worked as a firefighter in 2004.


            In support of his claim petition, Claimant submitted reports and
deposition testimony from Dr. Barry L. Singer (Claimant’s Expert), a physician
board certified in internal medicine, hematology and medical oncology.
Claimant’s Expert reviewed Claimant’s treatment records and Claimant’s affidavit
regarding his occupational history and exposure. Claimant’s Expert also reviewed
various studies relating firefighting with an increased risk of cancer, including
specific studies relating prostate cancer to firefighting. Ultimately, Claimant’s
Expert opined that Claimant’s occupational exposure to Group 1 carcinogens while
working for Employer was considerable and constituted a substantial contributing
factor in the development of Claimant’s prostate cancer.




                                        3
               In response to Claimant’s evidence, Employer submitted the
deposition testimony of Dr. Tee L. Guidotti (Employer’s Expert), a physician
board certified in internal medicine, pulmonary medicine and occupational
medicine. See Dep. of Dr. Guidotti, 1/21/13 (Guidotti Dep.) at 3-20; Reproduced
Record (R.R.) at 184-88. Employer’s Expert opined there is insufficient evidence
to support a conclusion that, as a matter of general causation, firefighting causes
prostate cancer. Guidotti Dep. at 63-64; R.R. at 240.                 Therefore, Employer’s
Expert did not offer an opinion as to the specific causation of any firefighter’s
prostate cancer. Guidotti Dep. at 66-67; R.R. at 241.


                              C. WCJ’s Decision and Order
               Initially, the WCJ noted that Claimant filed his April 2012 claim
petition within 600 weeks of his last day of work as a firefighter (last day of
exposure to hazards of the disease) as required by Section 301(f) of the Act,2
(firefighters’ cancer claims may be filed under Section 108(r) within 600 weeks
after the last date of employment with exposure to the hazard). However, because
Claimant filed his claim more than 300 weeks after his last date of exposure, the
WCJ determined Claimant was not entitled to Section 301(f)’s rebuttable
presumption that his cancer was causally related to his firefighter duties. WCJ
Op., 9/15/14, at 11.


               Moreover, after reviewing the medical evidence presented, the WCJ
rejected Claimant’s Expert’s opinion as to causation as not credible and
unpersuasive. In so doing, the WCJ found: (a) Claimant’s Expert failed to

      2
          Added by the Act of July 7, 2011, P.L. 251, 77 P.S. §414.



                                                4
consider significant risk factors including race, age and family history; (b)
Claimant’s Expert’s cited medical sources and studies did not consistently support
his causation opinion; (c) Claimant’s Expert admitted he lacked expertise in
urology, occupational medicine, toxicology or epidemiology; conversely,
Employer’s Expert is board certified in occupational medicine, has a degree in
toxicology and epidemiology, and he performed research studies on firefighters
and cancer; and, (d) Claimant’s Expert is not Claimant’s treating physician and
never examined Claimant or consulted with Claimant’s treating physicians;
additionally, Claimant’s Expert appeared too willing to link prostate cancer to
firefighting (in reviewing 30 cases of cancer in firefighters, Claimant’s Expert
linked the cancer to firefighting duties in virtually every instance). WCJ’s Op. at
13-14.


             Additionally, the WCJ accepted as credible Employer’s Expert’s
opinion that prostate cancer is just different from other cancers in that a “large
swath” of the male population will eventually be diagnosed with this condition
regardless of their occupation. WCJ’s Op. at 14. In particular, the WCJ accepted
Employer’s Expert opinion that prostate cancer is much more a disease of aging
than of external influences. Id.


             Consequently, the WCJ determined Claimant failed to establish his
duties as a firefighter caused his prostate cancer. Conclusion of Law (C.L.) No. 1.
The WCJ also determined Employer did not violate any provisions of the Act.
C.L. No. 2. Therefore, the WCJ dismissed Claimant’s claim and penalty petitions.




                                        5
                            D. Board’s Decision and Order
                Claimant appealed the dismissal of his claim petition to the Board. In
affirming the WCJ, the Board observed that Claimant did not file his claim petition
until April 20, 2012, more than 792 weeks after his date of alleged disability on
February 11, 1997. See Bd. Op., 12/9/15, at 9. As such, the Board determined
Claimant failed to make a claim within the 600-week period in Section 301(f) of
the Act, 77 P.S. §414. For the same reason, the Board noted that Claimant was not
entitled to the presumption of compensability in Section 301(f) for cancer claims
filed within 300 weeks from Claimant’s last exposure to the hazards of the disease.
Bd. Op. at 9.


                Further, the Board determined the WCJ articulated objective reasons
for rejecting Claimant’s Expert’s testimony as to causation, regardless of
Employer’s Expert’s testimony. See Bd. Op. at 17-18.


                For these reasons, the Board affirmed the WCJ’s dismissal of
Claimant’s claim petition. Claimant petitions for review.3


                                          II. Issues
                Claimant presents three primary issues for our review. First, Claimant
contends the Board erred in misinterpreting Section 301(f) of the Act as requiring
that a firefighter must file a claim petition within 300 weeks of his last


       3
         Our review is limited to determining whether the WCJ’s findings of fact were supported
by substantial evidence, whether an error of law was committed or whether constitutional rights
were violated. Phoenixville Hosp. v. Workers’ Comp. Appeal Bd. (Shoap), 81 A.3d 830 (Pa.
2013).

                                              6
occupational exposure in order for the rebuttable presumption of compensability to
apply. Second, Claimant asserts, even assuming Section 301(f) creates a limitation
on the time in which a firefighter diagnosed with cancer has to file a claim petition,
the discovery rule applies and therefore extends the time for filing.          Third,
Claimant maintains the Board’s determination that Claimant failed to establish an
entitlement to benefits and that Employer’s medical evidence rebutted the statutory
presumption of compensability in Section 301(f) is not supported by competent
evidence or pertinent legal authority.


             In addition to the issues raised by Claimant, Employer contends
Claimant failed to timely file his claim petition within 600 weeks of the last day he
could have had relevant exposure to a Group 1 carcinogen. Rather, Employer
asserts, Claimant filed his claim petition in April 2012, more than 790 weeks after
his early 1997 cancer diagnosis. Therefore, Employer argues, Claimant’s claim
petition must be ruled untimely under Section 301(f) of the Act.


                                   III. Discussion
                    A. Relevant Statutory Provisions; Sladek
             In accord with our prior decisions involving cancer claims under the
2011 amendments to the Act, we begin with a review of the relevant statutory
provisions and applicable case law. First, Section 301(c) of the Act, as amended
by Act 46, pertinently provides (with emphasis added):

              (1) The terms ‘injury’ and ‘personal injury,’ as used in
             this act, shall be construed to mean an injury to an
             employe, regardless of his previous physical condition,
             except as provided under subsection (f), arising in the
             course of his employment and related thereto, and such


                                          7
            disease or infection as naturally results from the injury
            ….

             (2) The terms ‘injury,’ ‘personal injury,’ and ‘injury
            arising in the course of his employment,’ as used in this
            act, shall include, unless the context clearly requires
            otherwise, occupational disease as defined in section
            108 of this act. Provided, 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 …. The employer liable for
            compensation provided by … section 108, subsections
            (k), (l), (m), (o), (p), (q) or (r), shall be the employer in
            whose employment the employe was last exposed for a
            period of not less than one year to the hazard of the
            occupational disease claimed. …

77 P.S. §411(2).


            Act 46 also amended Section 108 and added Section 301(f) of the Act.
Section 108, which lists compensable occupational diseases, now includes (with
emphasis added):

             (r) Cancer suffered by a firefighter which is caused by
            exposure to a known carcinogen which is recognized as a
            Group 1 carcinogen by the [IARC].

77 P.S. §27.1.


            Section 301(f) of the Act applies specifically to claims for
compensation for cancer suffered by a firefighter and caused by direct exposure to




                                         8
certain carcinogens while performing firefighter duties. Section 301(f) provides
(with emphasis added):

               Compensation pursuant to cancer suffered by a
             firefighter shall only be to those firefighters who have
             served four or more years in continuous firefighting
             duties, who can establish direct exposure to a carcinogen
             referred to in section 108(r) relating to cancer by a
             firefighter and have 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. The presumption of this subsection
             may be rebutted by substantial competent evidence that
             shows that the firefighter’s cancer was not caused by the
             occupation of firefighting. … 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 the disease. The presumption provided for
             under this subsection shall only apply to claims made
             within the first three hundred weeks.

77 P.S. §414.


             In City of Philadelphia Fire Department v. Workers' Compensation
Appeal Board (Sladek), 144 A.3d 1011 (Pa. Cmwlth., 2016) (en banc), appeal
granted, ___ A.3d ___ (Pa., No. 405 EAL 2016, filed March 1, 2017), we vacated
an award of benefits under Section 108(r) for malignant melanoma contracted by a
firefighter based on the Board’s misinterpretation of the language in that provision.


                                         9
In Sladek, we determined the Board misinterpreted Section 108(r) as indicating the
General Assembly established a causal relationship between any Group 1
carcinogen and any type of cancer. We noted the Board erroneously reasoned that
the claimant need not show exposure to a particular carcinogen in Group 1 or
establish the carcinogens to which he was exposed specifically caused his
malignant melanoma. See Sladek, 144 A.3d at 1021.


             To the contrary, we observed, the General Assembly placed the words
caused by between cancer suffered by a firefighter and exposure to a known Group
1 carcinogen for a reason. Therefore, a claimant must prove that his cancer is the
type of cancer caused by the Group I carcinogens to which he was exposed. Id. If
the claimant can establish his type of cancer is an occupational disease under
Section 108(r), then the rebuttable presumptions in Sections 301(e) and (f) come
into play. Id.


             Further, in Sladek we reasoned that the presumption of causation in
Section 301(e)4 of the Act relieves the firefighter of the need to prove his
workplace exposure rather than some other reason caused his cancer.                If the
firefighter can establish four years of continuous service and the absence of cancer



      4
          Section 301(e) of the Act, 77 P.S. §413, which applies to occupational diseases
generally, provides (with emphasis added):

              If it be shown that the employe, at or immediately before the date
             of disability, was employed in any occupation or industry in which
             the occupational disease is a hazard, it shall be presumed that the
             employe’s occupational disease arose out of and in the course of
             his employment, but this presumption shall not be conclusive.



                                             10
prior to that service, he is entitled to compensation under Section 301(f). Sladek,
144 A.3d at 1020.


             Accordingly, we vacated the Board’s order in Sladek and remanded
for a determination as to whether the claimant’s medical evidence established that
melanoma is a type of cancer caused by the Group 1 carcinogens to which the
claimant suffered a work-related exposure.


                           B. Hutz; Demchenko; Fargo
             Following Sladek, this Court filed Hutz v. Workers’ Compensation
Appeal Board (City of Philadelphia), 147 A.3d 35 (Pa. Cmwlth. 2016), petition for
allowance of appeal pending (Pa., No. 444 EAL 2016, filed October 3, 2016) and
Demchenko v. Workers' Compensation Appeal Board (City of Philadelphia), 149
A.3d 406 (Pa. Cmwlth. 2016), affirming the denial of Section 108(r) claims for
compensation for prostate cancer allegedly caused by exposure to carcinogens as a
firefighter. Similar to the present case, in Hutz and Demchenko the claimants
failed to establish a causal relationship between their prostate cancer and their
occupational exposure as a firefighter to Group 1 carcinogens.


             In Hutz and Demchenko we addressed and rejected arguments very
similar, if not identical, to Claimant’s primary arguments here. First, as discussed
in Sladek, before a claimant may avail himself of the rebuttable presumption of
compensability in Section 301(f) of the Act, he must first establish his cancer is an
occupational disease under Section 108(r) by proving his is the type of cancer
caused by the Group 1 carcinogens to which he was exposed in the workplace.



                                         11
Section 301(f) also requires that a claim petition be filed within 300 weeks of the
claimant’s last occupational exposure to a Group 1 carcinogen for the presumption
of compensability to apply.


            Further, in Fargo v. Workers' Compensation Appeal Board (City of
Philadelphia), 148 A.3d 514 (Pa. Cmwlth. 2016), petition for allowance of appeal
pending (Pa., No. 486 EAL 2016, filed November 4, 2016), we reaffirmed that Act
46 defined a distinct limitations period in Section 301(f), which mandates that an
occupational disease claim under Section 108(r) be filed within 600 weeks of the
last date of workplace exposure to a Group 1 carcinogen. Citing Hutz, we noted
the key difference between the limitations periods in Sections 301(c)(2) and 301(f)
is not the date upon which the periods start, but rather what must take place before
the periods end. In the case of Section 301(c)(2), disability or death from the
disease must occur within 300 weeks. In the case of Section 301(f), the claimant
must file the claim within 600 weeks of the last date of workplace exposure to a
Group 1 carcinogen.      We determined this approach was consistent with our
rationale in Hutz, wherein we observed that the date of filing of the claim was
determinative as to the applicability of the 300-week presumption of
compensability in Section 301(f).


            We then summarized the requirements of Section 301(f)’s two-tiered
limitations period for Section 108(r) occupational disease claims as follows:

            First, a claimant must file the claim within 300 weeks of
            the last date of work with exposure to a known Group 1
            carcinogen; 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


                                        12
             301(f). However, if the claimant does not file the claim
             until more than 600 weeks after the date of last
             workplace exposure, the claimant is foreclosed from
             bringing that claim in its entirety.

Fargo, 148 A.3d at 520.


             We also rejected Claimant’s contention that if Section 301(f) requires
a claim under Section 108(r) be filed within 600 weeks of the last date of
workplace exposure, then it is subject to a discovery rule to extend the time for
filing. In short, we agreed with the Board that the 600-week period in Section
301(f) acts as a statute of repose and is not subject to the discovery rule, which
applies to the three-year statute of limitations in Section 315 of the Act, 77 P.S.
§602.   See Westinghouse Elec. Corp./CBS v. Workers’ Comp. Appeal Bd.
(Korach), 883 A.2d 579, 588 n.11 (Pa. 2005) (a statute of repose, unlike a statute
of limitations, is substantive rather than procedural and extinguishes both the
remedy and the cause of action; 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).


             In light of our decisions in Sladek, Hutz, Demchenko and Fargo we
review the issues raised in the present appeal.




                          C. Timeliness of Claim Petition
             We first address Employer’s contention that Claimant’s claim petition
was untimely under Section 301(f) of the Act because he filed it more than 600



                                         13
weeks after his prostate cancer diagnosis in January 1997. As noted in Fargo, Hutz
and again recently in Lucas v. Workers' Compensation Appeal Board (City of
Sharon) (Pa. Cmwlth., No. 2606 C.D. 2015, filed December 20, 2016)
(unreported), petition for allowance of appeal pending (Pa., No. 27 EAL 2017,
filed January 17, 2017), Section 301(f) mandates that a cancer claim under Section
108(r) be filed within 600 weeks of the last date of workplace exposure to a Group
1 carcinogen.


            Here, the Board noted, Claimant received a prostate cancer diagnosis
on February 1997, more than 790 weeks prior to the filing of his claim petition in
April 2012. Thus, the Board opined that Claimant failed to make a timely claim
within the 600-week period specified in Section 301(f). Bd. Op. at 9. The dates in
the Board’s opinion are consistent with the record. Claimant testified his family
doctors diagnosed him with prostate cancer on February 11, 1997. WCJ Op.,
Finding of Fact (F.F.) No. 4; Dep. of Thomas Logan, 11/9/12 (Logan Dep.), at 21-
22. A couple of months after diagnosis, Claimant underwent surgery. F.F. No. 4;
Logan Dep. at 24. As a result, Claimant missed approximately six months of
work. F.F. No. 4; Logan Dep. at 24. As reflected by his claim petition, Claimant’s
wage loss attributable to his prostate cancer ended May 1, 1997.


            However, Claimant seeks ongoing medical benefits and there is no
evidence in the record that Claimant fully recovered from his cancer. To the
contrary, Claimant’s Expert noted in his April 16, 2012 report that following his
radical prostatectomy in 1997, his PSA was low at less than .1 nanograms per ml.
See Report of Dr. Barry L Singer, 4/16/12, at 2; R.R. at 60. However, Claimant’s



                                        14
PSA rose from .083 in February 2001 to 3.1 in August 2011. Id. In addition,
Claimant’s Expert indicated Claimant “remains at a significiant risk of dying from
this disease.” Id.


                In light of Claimant’s residual prostate cancer, we agree with the
WCJ’s initial determination that Claimant timely filed his 2012 claim petition
within 600 weeks of his last day of exposure to carcinogens as a firefighter in
2004. See WCJ Op. at 11. Consequently, we reject Employer’s contention that
Claimant’s claim petition was untimely under Section 301(f).5


                                 D. Claimant’s Contentions
                  1. Section 301(f)’s Presumption of Compensability
                Claimant first contends the Board erred in misinterpreting Section
301(f) of the Act as requiring that a firefighter must file a claim petition within 300
weeks of his last occupational exposure in order for the rebuttable presumption of
compensability to apply.           Claimant asserts Act 46 placed cancer suffered by
firefighters caused by occupational exposure to carcinogens on Section 108’s list
of occupational diseases compensable under Section 301(c)(2) of the Act. Section
301(c)(2) requires that an occupational disease must “occur” or manifest within
300 weeks of the last date of the claimant’s exposure to the hazard. 77 P.S.
§411(2). The newly added Section 301(f), Claimant argues, modified the 300-
week manifestation period by extending it to 600 weeks. Claimant further argued
that the rebuttable presumptions of causation in Section 301(e) and compensability



      5
          Employer in this case did not raise a retroactivity challenge to Section 301(f) of the Act.

                                                 15
in Section 301(f) are available for firefighters with a claimable disease diagnosed
within 300 weeks of their last work-related exposure to carcinogens.


             In support of his position, Claimant argues the Supreme Court
rejected the Board’s interpretation of the 300-week manifestation period in Section
301(c)(2) of the Act as requiring a claim petition be filed within that time period.
See City of McKeesport v. Workers' Comp. Appeal Bd. (Miletti), 746 A.2d 87 (Pa.
2000) (proper focal point under Section 301(c)(2) is whether the occupational
disease occurred within 300 weeks of the claimant’s last exposure, regardless of
when the claim was filed). To that end, Claimant asserts, the three-year statute of
limitations in Section 315 of the Act, 77 P.S. §602, does not begin to run in
occupational disease cases until the claimant learns, by a competent medical
diagnosis, that his disability is work-related. Price v. Workmen's Comp. Appeal
Bd. (Metallurgical Resources), 626 A.2d 114 (Pa. Cmwlth. 1993). Under the
WCJ’s erroneous interpretation, Claimant maintains, a firefighter diagnosed with
cancer would have to file a claim petition within 300 weeks of the occurrence of
the disease in order to qualify for the rebuttable presumption of causation
regardless of whether the firefighter knows the disease is work-related.


             We disagree.    We distinctly addressed and rejected these precise
issues in Sladek, Hutz, Demchenko and Fargo. Most importantly, as discussed in
Sladek, before a claimant may avail himself of the rebuttable presumption of
compensability in Section 301(f) of the Act, he must first establish his cancer is an
occupational disease under Section 108(r) by proving his cancer is the type of
cancer caused by the Group 1 carcinogens to which he was exposed in the



                                         16
workplace.    Given the WCJ’s rejection of Claimant’s Expert’s opinion that
Claimant’s prostate cancer was causally related to his exposure to Group 1
carcinogens as a firefighter, Claimant is not entitled to the evidentiary
presumptions in Section 301(e) and (f) of the Act. Demchenko; Fargo; Hutz, and
Sladek.


             Moreover, Claimant filed his claim petition in April 2012, more than
300 weeks after his last date of employment with exposure to the hazard, which
occurred in 2004. F.F. No. 21(d). For this additional reason, Claimant was not
entitled to the presumption of compensability in Section 301(f) of the Act.
Demchenko; Fargo.


                                  2. Discovery Rule
             Second, Claimant asserts, even assuming Section 301(f) creates a
limitation on the time in which a firefighter diagnosed with cancer has to file a
claim petition, the discovery rule applies and therefore extends the time for filing.
Therefore, Claimant argues, the statute of limitations does not begin to run in
occupational disease cases until the claimant learns, by a competent medical
diagnosis, that his disability is work-related. Price.


             We disagree. As we observed in Hutz, Claimant misstates the issue.
The issue is not whether a statute of limitations resulted in the denial of Claimant’s
firefighter cancer claim. As explained above, his filing of the claim was timely.
Rather, the issue is whether Claimant may rely on the statutory presumption of
compensability in Section 301(f).



                                          17
             In any event, Claimant failed to establish a causal relationship
between his prostate cancer and his occupational exposure to a carcinogen
recognized as a Group 1 carcinogen by the IARC. Thus, regardless of the date he
filed his claim petition, the presumption of compensability in Section 301(f) of the
Act is unavailable to Claimant. Sladek. Therefore, any further discussion of
whether the discovery rule applies to the 300-week filing limitation period for the
application of the presumption of compensability is unnecessary in this case. As
such, this issue is moot. See Battiste v. Borough of E. McKeesport, 94 A.3d 418
(Pa. Cmwlth. 2014) (a court may, on its own, raise the issue of mootness as courts
cannot decide a controversy that no longer exists; an actual controversy must be
extant at all stages of review).


                         3. Medical Evidence of Causation
             Claimant also contends the Board’s determination that Claimant failed
to establish an entitlement to benefits and that Employer’s medical evidence
rebutted the statutory presumption of compensability in Section 301(f) is not
supported by competent evidence or pertinent legal authority.


             In particular, Claimant asserts Employer’s Expert failed to offer an
opinion specific to Claimant’s individual circumstances. Claimant further asserts
the WCJ failed to address Employer’s Expert’s admissions that: epidemiology
measures risks in populations, not in individual cases; a general causation or
epidemiologic opinion is not dispositive whether exposures were a substantial
contributing factor in a specific individual’s cancer; and, for specific causation,



                                        18
clinical judgment, taking into account the individual characteristics of the claimant
is required.


               Here, Claimant maintains, Employer’s Expert testified he did not
question Claimant’s diagnosis, and he did not provide any opinion as to what
particularly caused Claimant’s or any other firefighter’s cancer. In the absence of
any opinion specific to the cause of his cancer, Claimant argues Employer’s
Expert’s opinion cannot rebut the presumption of compensability in Section 301(f).


               As discussed above, regardless of the date Claimant filed his claim
petition, the presumption of compensability in Section 301(f) of the Act is
unavailable to Claimant. Sladek; Hutz. Thus, although Employer’s Expert did not
offer an opinion specific to Claimant’s individual circumstances, the presumption
of compensability in Section 301(f) did not come into play in this case.


               As such, the burden of establishing causation remained with Claimant.
However, the WCJ found Claimant’s Expert’s testimony failed to credibly or
persuasively prove that Claimant’s exposure to Group I carcinogens constituted a
significant contributing factor in the cause of his prostate cancer. WCJ Op. at 13-
14.


               In sum, Claimant’s Expert’s testimony failed to establish a causal
relationship between Claimant’s prostate cancer and his occupational exposure to
Group 1 carcinogens. WCJ Op. at 13-14. Therefore the burden of rebutting an
established causal relationship did not fall upon Employer. Hutz; Sladek.



                                          19
            Nonetheless, we reject Claimant’s contention that Employer’s
Expert’s testimony does not constitute substantial competent evidence in support
of the WCJ’s determination that Claimant’s medical evidence did not support the
finding of a causal relationship between Claimant’s exposure to carcinogens as a
firefighter and his prostate cancer. Although Claimant argues that Employer’s
Expert admitted that general epidemiology measures risks in populations, not
individuals, this does not render incompetent his testimony that Claimant’s Expert
is not an epidemiologist and that the studies he relied on were not an adequate
basis for Claimant’s Expert’s opinion that the prostate cancers of the firefighters’
cases he reviewed were work-related. See Amandeo v. Workers' Comp. Appeal
Bd. (Conagra Foods), 37 A.3d 72 (Pa. Cmwlth. 2012) (in determining whether
medical evidence is unequivocal and therefore competent to support a factual
determination, we review the testimony as a whole and do not base our analysis on
a few words taken out of context); Hannigan v. Workmen's Comp. Appeal Bd.
(Asplundh Tree Expert Co.), 616 A.2d 764 (Pa. Cmwlth. 1992) (same).


                                 IV. Conclusion
            For the above reasons, we agree with the Board’s order upholding the
WCJ’s denial of Claimant’s claim petition. Accordingly, we affirm.




                                      ROBERT SIMPSON, Judge




                                        20
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Thomas Logan,                          :
                       Petitioner      :
                                       :
           v.                          :   No. 2605 C.D. 2015
                                       :
Workers' Compensation Appeal           :
Board (City of Philadelphia),          :
                         Respondent    :


                                    ORDER

           AND NOW, this 9th day of March, 2017, for the reasons stated in the
foregoing opinion, the order of the Workers' Compensation Appeal Board is
AFFIRMED.




                                      ROBERT SIMPSON, Judge
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Thomas Logan,                              :
                    Petitioner             :
                                           :   No. 2605 C.D. 2015
             v.                            :
                                           :   Submitted: September 30, 2016
Workers’ Compensation Appeal               :
Board (City of Philadelphia),              :
                   Respondent              :



BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge



OPINION NOT REPORTED

CONCURRING OPINION
BY JUDGE McCULLOUGH                                         FILED: March 9, 2017


             I concur in the result reached by the thoughtful Majority because there
is no dispute that Thomas Logan (Claimant) filed his claim petition more than 300
weeks after his last day of service as a firefighter. However, I write to further
clarify our application of the presumption in Section 301(f) of the Workers’
Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §414,
and its relationship to Section 108(r) of the Act, 77 P.S. § 27.1(r).
             Section 301(f) reads in pertinent part as follows:

             Compensation pursuant to cancer suffered by a
             firefighter shall only be to those firefighters who
             have served four or more years in continuous
             firefighting duties, who can establish direct
             exposure to a carcinogen referred to in section
             108(r) relating to cancer by a firefighter and have
             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. The presumption of this subsection may be
             rebutted by substantial competent evidence that
             shows that the firefighter’s cancer was not caused
             by the occupation of firefighting.
77 P.S. §414.
             The Majority opinion restates the way we have come to apply section
301(f).   The advantage, as we described in City of Philadelphia v. Workers’
Compensation Appeal Board (Sladek), 144 A.3d 1011, 1020 (Pa. Cmwlth. 2016),
appeal granted (Pa., No. 405 EAL 2016, filed March 1, 2017), is that “the
presumption relieves the firefighter of the need to prove that his cancer was caused
by his workplace exposure and not another cause.”
             While it is not necessary here to rule on the presumption because
Claimant filed his claim petition more than 300 weeks after his last employment as
a firefighter, it is important to clarify some of the language which appears here and
previously in Hutz v. Workers’ Compensation Appeal Board (City of
Philadelphia), 147 A.3d 35, 49 (Pa. Cmwlth. 2016), petition for allowance of
appeal pending (Pa., No. 444 EAL 2016, filed October 3, 2016).         In Sladek, as
reiterated by the Majority here, we held that “[i]t was incumbent upon Claimant to
prove that his malignant melanoma is a type of cancer [emphasis added] caused by
[emphasis in original] the Group I carcinogens to which he was exposed in the
workplace” in order to assert the presumption. 144 A.3d at 1021-22.
             While the Majority primarily focuses on the interpretation of the
presumption that is consistent with the legislative intent, the following language


                                      PAM - 2
used in this opinion and in Hutz could be misconstrued in application of the
presumption. Specifically, the majority cites Sladek as standing for the proposition
that to gain the benefit of the presumption, the firefighter must prove, inter alia,
that his cancer was “specifically caused” by a Group I carcinogen. (Slip op. at
10.)   This same language appeared in Hutz, as follows: “Therefore, a claimant
must prove his cancer is caused by the Group I carcinogens to which he was
exposed in the workplace.” 147 A.3d at 49.
            The noted language here and in Hutz could be viewed as changing the
burden of establishing entitlement to the presumption.             To avoid any
misconception concerning the presumption, I reiterate that a claimant need not
show that his cancer was caused by the Group I carcinogen, rather, claimant
need only show that his cancer was a type of cancer which is caused by
exposure to the Group I carcinogen in the workplace. To say otherwise could be
viewed as modifying the presumption we recognize as relieving the firefighter of
the need to prove that his cancer was caused by his workplace exposure and not
another cause. Sladek, 144 A.3d at 1021-22.       Accordingly, although I join the
result in the present case, I must depart from the Majority’s statement and the same
statement in Hutz.
            Finally, the majority also states that Claimant must prove that his
cancer is “the type of cancer caused by the Group I carcinogens.” (Majority op. at
10.) However, the language used in Sladek was that Claimant gets the presumption
if he shows that his cancer is “a type of cancer” caused by a Group I carcinogen.
144 A.3d at 1022. In other words, the firefighter-claimant obtains the benefit of
the presumption once he establishes that his cancer is one of a type of the cancers




                                     PAM - 3
on the International Agency for Research on Cancer (IARC) list which is caused
by exposure to the carcinogen in the workplace.
              It is a not a preordained formula, whereas a carcinogen is tied only to
a closed-class or defined cancer, and the claimant has the flexibility to demonstrate
that any one of the more than 120 types of cancer is known to develop or derive
from the carcinogen to which he was exposed. If the claimant identifies exposure
to such a Group I carcinogen, through competent and admissible testimony, he is
entitled to the presumption that his injury occurred in the course of his
employment. Pursuant to the statute, the only way the employer can rebut this
presumption is to adduce competent evidence showing that the claimant’s cancer
“was not caused by the occupation of firefighting,” but by something else, e.g.,
genetics, happenstance, diet, exposure to elements at a home, etc. Otherwise, the
entire concept of the presumption would be nullified if, to determine whether the
presumption should apply, both the claimant and employer could litigate, as a
threshold matter involving fact-finding by the WCJ, whether or not the claimant’s
cancer was the only, or even the most likely, cancer to derive from a known
carcinogen. This is simply not the test for the presumption but the Majority
appears to at least suggest that it is.
              The clarifications discussed herein are intended to prevent any
misapplications of the presumption which could result in conflating exposure and
causation.    Consistent with our holding in Sladek, a presumption of work-
relatedness applies if the firefighter-claimant proved (1) four years of service, (2)
successful passage of the physical examination, (3) no evidence of cancer in such
an examination, (4) evidence of exposure to an IARC Group I carcinogen, and (5)
the filing of a claim petition within 300 weeks of the date of last employment as a


                                          PAM - 4
firefighter. Such a presumption is rebuttable, of course, but with this clarification,
I believe this Court upholds the letter and spirit of the Act 46 revisions to the Act.1




                                                   ________________________________
                                                   PATRICIA A. McCULLOUGH, Judge




      1
          Act of July 7, 2011, P.L. 251, No. 46.
                                            PAM - 5
