         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Albert Fargo,                                 :
                                              :
                     Petitioner               :
                                              :
              v.                              : No. 2239 C.D. 2015
                                              : Submitted: May 6, 2016
Workers’ Compensation Appeal                  :
Board (City of Philadelphia),                 :
                                              :
                     Respondent               :


BEFORE:       HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION BY
SENIOR JUDGE COLINS                                         FILED: October 11, 2016


              Albert Fargo (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 under Section 108(r) of the Workers’ Compensation Act
(Act),1 relating to the occupational disease of 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). The WCJ denied the
claim petition on the basis that the claim was not brought within 600 weeks of
Claimant’s last exposure to workplace hazards while working as a firefighter for

1
  Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1–1041.1, 2501–2708. Section 108(r),
77 P.S. § 27.1(r), and Section 301(f) of the Act, 77 P.S. § 414, discussed below, were added by
the Act of July 7, 2011, P.L. 251.
the City of Philadelphia (Employer), as required by Section 301(f) of the Act. For
the reasons that follow, we affirm the order of the Board.
                 In this appeal, we are called upon to interpret the provision in Section
301(f) that a claim 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.” 77 P.S. § 414. In all matters involving
statutory interpretation, we apply the Statutory Construction Act of 1972, 1 Pa.
C.S. §§ 1501–1991, which provides that the “object of all interpretation and
construction of statutes is to ascertain and effectuate the intention of the General
Assembly.” 1 Pa. C.S. § 1921(a); see also Department of Transportation, Bureau
of Driver Licensing v. Weaver, 912 A.2d 259, 264 (Pa. 2006). In construing
statutory language, “[w]ords and phrases shall be construed according to rules of
grammar and according to their common and approved usage.” 1 Pa. C.S. §
1903(a). The clearest indication of legislative intent is generally the plain language
of the statute. Chanceford Aviation Properties, L.L.P. v. Chanceford Township
Board of Supervisors, 923 A.2d 1099, 1104 (Pa. 2007). “When the words of a
statute are clear and free from all ambiguity, the letter of it is not to be disregarded
under the pretext of pursuing its spirit.” 1 Pa. C.S. § 1921(b); Weaver, 912 A.2d at
264. It is only when the text of a statutory provision is ambiguous that we will
consider the principles of statutory construction set forth in Section 1921(c) of the
Statutory Construction Act, 1 Pa. C.S. § 1921(c), in order to determine legislative
intent. Chanceford Aviation, 923 A.2d at 1104.
                 Sections 108(r) and 301(f) were both added to the Act by the General
Assembly through Act 46 of 2011.2 Section 108(r) recognizes the occupational

2
    Act of July 7, 2011, P.L. 251.

                                             2
disease of “[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)
sets forth three requirements that a firefighter-claimant must show to establish a
claim under Section 108(r): (i) the claimant worked for four or more years in
continuous firefighting duties, (ii) the claimant had direct exposure to a carcinogen
classified as Group 1 by the IARC, and (iii) the claimant passed a physical
examination prior to engaging in firefighting duties that did not reveal evidence of
cancer. 77 P.S. § 414. In addition, as we explained in City of Philadelphia Fire
Department v. Workers’ Compensation Appeal Board (Sladek), ___ A.3d ___, (Pa.
Cmwlth., No. 579 C.D. 2015, filed Aug. 12, 2016) (en banc), the claimant must
establish that the cancer contracted by the claimant is a type of cancer “caused by”
exposure to the Group 1 carcinogen to which the claimant was exposed in the
workplace. Id. at ___, slip op. at 18 (quoting 77 P.S. § 27.1(r)); see also Hutz v.
Workers’ Compensation Appeal Board (City of Philadelphia), ___ A.3d ___, (Pa.
Cmwlth., No. 2140 C.D. 2015, filed Sept. 7, 2016), slip op. at 27-28. Only once
the claimant makes these showings, is he entitled to the rebuttable presumption of
compensability set forth in Section 301(f) and Section 301(e) of the Act. 3 Hutz,
___ A.3d at ___, slip op. at 28; Sladek, ___ A.3d at ___, slip op. at 18.
               In addition to the foregoing, Section 301(f) further provides that:



3
  Section 301(e) of the Act, added by Act of Oct. 17, 1972, P.L. 930, 77 P.S. § 413, which is
applicable to occupational disease cases generally, provides: “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.”

                                                3
              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.
              Section 301(c)(2) of the Act, 77 P.S. § 411(2), which is referenced in
the above-quoted text of Section 301(f), defines the term “injury” as used in the
Act to include the occupational diseases listed in Section 108. 77 P.S. § 411(2).
Furthermore, and particularly relevant to this appeal, Section 301(c)(2) includes
the proviso

              [t]hat 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...

Id. This provision requires that in occupational disease cases, a compensable
disability must manifest within 300 weeks of the last date of the claimant’s
exposure to the hazard and that a disability that first manifests more than 300
weeks after the exposure is not compensable under the Act.              See City of
McKeesport v. Workers’ Compensation Appeal Board (Miletti), 746 A.2d 87, 89
(Pa. 2000); Hutz, ___ A.3d at ___, slip op. at 32; see also Tooey v. AK Steel Corp.,
81 A.3d 851, 863-65 (Pa. 2013) (holding that when an occupational disease
manifests outside the 300-week period of Section 301(c)(2) such that the claimant
                                          4
is barred from filing a claim, the exclusivity provision in the Act does not apply
and the claimant may pursue a common-law claim); Cable v. Workmen’s
Compensation Appeal Board (Gulf Oil/Chevron USA, Inc.), 664 A.2d 1349, 1351-
52 (Pa. Cmwlth. 1995) (holding that the 300-week period of Section 301(c)(2)
begins to run on the date of exposure rather than the date of the claimant’s last
employment). Section 301(c)(2) requires that the claimant’s disability arise within
300 weeks of the last exposure, however, this provision does not mandate that the
claimant actually file a claim within 300 weeks of the last exposure. City of
McKeesport, 746 A.2d at 90-91.
             The facts relevant to this appeal are undisputed. Claimant began
working for Employer as a firefighter in 1972. (WCJ Decision, Finding of Fact
(F.F.) ¶1.) In 1997, Claimant was diagnosed with squamous skin cell carcinoma
after a biopsy of a growth on his leg. (Id. F.F. ¶3.) On July 31, 2001, Claimant
injured his back in a motor vehicle accident, and he elected to take sick leave,
remaining out of work until he retired on September 16, 2002. (Id. F.F. ¶2; Apr.
25, 2014 Hearing Transcript (H.T.) at 27-28, Reproduced Record (R.R.) at 28-29.)
In 2005, Claimant was diagnosed with malignant melanoma after a biopsy of a
growth on his back. (Id. F.F. ¶4.) Claimant was diagnosed with bladder cancer on
July 6, 2012, and he filed a claim petition seeking medical benefits for the bladder
cancer on March 14, 2014. (WCJ Decision, F.F. ¶¶5, 6.) At a hearing before the
WCJ on April 25, 2014, Claimant amended the claim petition to include the
squamous skin cell carcinoma diagnosis in 1997 and the malignant melanoma
diagnosis in 2005. (Id. F.F. ¶7; H.T. at 6, R.R. at 7.) At that hearing, the WCJ also
directed the parties to file briefs on the issue of whether the claim petition was



                                         5
barred by the 600-week limitations provision of Section 301(f). (H.T. at 41-44,
R.R. at 42-45.)
                 On July 15, 2014, the WCJ issued a decision and order dismissing the
claim petition as untimely filed. The WCJ found that the claim petition of March
14, 2014 was filed more than 600 weeks4 after July 31, 2001, the last day that
Claimant appeared at work for Employer and therefore the last day that Claimant
could have possibly been exposed to a carcinogen in the workplace.             (WCJ
Decision, F.F. ¶9.) The WCJ recognized that while Section 301(f) expanded the
time period for filing occupational disease claims under Section 108(r) for cancer
suffered by a firefighter to 600 weeks, there is nothing in the Act that would
explicitly allow for any extension of time for filing a petition beyond 600 weeks
and accordingly concluded that the claim petition was untimely. (WCJ Decision,
Conclusion of Law ¶1, Discussion.)
                 Claimant appealed to the Board, and the Board affirmed the
determination by the WCJ that the claim petition was untimely under Section
301(f). The Board rejected the argument by Claimant that the 600-week period
referred to in Section 301(f) was merely an extension of the 300-week
manifestation period of Section 301(c)(2) of the Act, 77 P.S. § 411(2), which only
requires that the symptoms of the disease manifest within 300 weeks. The Board
held that differences in the language of these two provisions showed that the
General Assembly did not intend in Section 301(f) to simply enlarge the
manifestation period to 600 weeks for Section 108(r) occupational disease cases
but instead created an independent deadline for a claimant who seeks to file a
Section 108(r) claim. Addressing Claimant’s argument that if Section 301(f) does

4
    600 weeks is approximately 11.5 years.

                                             6
not extend the 300-week manifestation period of Section 301(c)(2) to 600 weeks it
should be interpreted as a statute of limitations as to which the discovery rule
applies, the Board determined that, because the 600-week period of Section 301(f)
was triggered by a specific event independent of the accrual of a remedy – namely
the last day of exposure to a workplace hazard – Section 301(f) acted as a statute of
repose rather than a statute of limitations.         Therefore, the Board rejected the
application of a discovery rule to Section 301(f), holding that this provision by its
plain language acts to permanently extinguish the Section 108(r) claim upon the
running of 600 weeks.
              On appeal to this Court,5 Claimant first argues that the Board erred in
analyzing Section 301(f) as imposing a different type of limitations period
compared to Section 301(c)(2) by holding that Section 301(f) requires a claimant
to file a Section 108(r) claim within 600 weeks of the last date of workplace
exposure to a hazard. Claimant argues that the General Assembly intended in
Section 301(f) to extend the 300-week manifestation period of Section 301(c)(2)
for Section 108(r) cases to 600 weeks to account for the longer latency period in
firefighter cancer cases, but only to allow the rebuttable presumption of
compensability where the diagnosis occurs within 300 weeks of the last exposure.
Claimant argues that he is entitled to pursue his claims under Section 301(f) for
squamous cell cancer, malignant melanoma and bladder cancer, which were
diagnosed in 1997, 2005 and 2012, respectively, because the diagnoses occurred
within 600 weeks of his last workplace exposure to carcinogens in 2001, although

5
  This Court’s review of an appeal from a determination by the Board is limited to determining
whether an error of law was committed, whether the WCJ’s necessary findings of fact are
supported by substantial evidence and whether Board procedures or constitutional rights were
violated. 2 Pa. C.S. § 704; Repash v. Workers’ Compensation Appeal Board (City of
Philadelphia), 961 A.2d 227, 231 n.5 (Pa. Cmwlth. 2008).

                                              7
Claimant concedes that he is not entitled to a presumption of compensability
related to bladder cancer because that diagnosis did not occur within 300 weeks of
his last exposure.
               Upon review, we agree with the Board that the General Assembly
enacted a distinct limitations period in Section 301(f) compared to Section
301(c)(2) and by its plain language Section 301(f) mandates that an occupational
disease claim pursuant to Section 108(r) be filed within 600 weeks of the last date
of workplace exposure to a known carcinogen classified as Group 1 by the IARC.
First, Section 301(f) sets itself apart from Section 301(c)(2) by providing that
“[n]otwithstanding the limitation under [Section 301(c)(2)] that disability or death
resulting from an occupational disease having to occur within” 300 weeks of the
last date of workplace exposure. 77 P.S. § 414 (emphasis added). Section 301(f)
next provides that “claims filed pursuant to...section 108(r) may be made within”
600 weeks of the last date of workplace exposure. Id. (emphasis added). The
language is echoed in the last sentence of Section 301(f) that “[t]he presumption
provided for under this subsection shall only apply to claims made within the first
three hundred weeks.” Id. (emphasis added). Section 301(c)(2), by contrast,
provides that when occupational disease is the basis for compensation under the
Act, the Act6 “shall apply only to disability or death resulting from such disease
and occurring within” 300 weeks of the last date of workplace exposure. Thus, by
their plain text, the limitation period of Section 301(f) requires that claims “be

6
  Section 301(c)(2) provides 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” 300 weeks of the last date of workplace exposure. 77 P.S. §
411(2) (emphasis added). In Tooey, our Supreme Court weighed two competing interpretations
of Section 301(c)(2) and determined that “it” in the above-quoted portion of the statute refers to
the Act rather than compensation. 81 A.3d at 859-60.

                                                  8
made,” or filed, within 600 weeks while Section 301(c)(2) requires that the
disability or death that is the basis for the claim for compensation is “occurring,” or
manifesting, within 300 weeks.
             Claimant’s argument that Section 301(f) is simply an extension of the
manifestation period of Section 301(c)(2) relies on the fact that both statutes
employ nearly identical language that the limitations periods begin to run “after the
last date of employment in an occupation or industry to which a claimant was
exposed to the hazards of disease.” 77 P.S. § 414; compare 77 P.S. § 411(2)
(“...after the last date of employment in an occupation or industry to which he was
exposed to hazards of such disease...”). This indicates that, like Section 301(c)(2),
the 600-week period of Section 301(f) begins to run on the date of the last
exposure in the workplace rather than the last date of employment with the
employer. See Cable, 664 A.2d at 1351-52. However, the 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; in the case of Section
301(c)(2), disability or death resulting from the occupational disease must occur or
manifest within 300 weeks, while in the case of Section 301(f), the claimant must
file the claim within 600 weeks.
             This holding that it is the date of filing that is determinative in Section
301(f) rather than the date that the disability manifests is consistent with our
decision in Hutz, which addressed the operation of the last sentence of Section
301(f), providing that “[t]he presumption provided for under this subsection shall
only apply to claims made within the first three hundred weeks.” 77 P.S. § 414.
The claimant in Hutz filed a claim pursuant to Section 108(r) in April 2012 based
on his diagnosis of prostate cancer, more than 300 weeks after the March to June


                                           9
2006 period for which he sought benefits and the March 2006 radical
prostatectomy that was performed to treat his cancer. Hutz, ___ A.3d at ___, slip
op. at 2-3, 5. The Board determined that because the claim was filed beyond the
300-week period set forth in Section 301(f), the statutory presumption of
compensability did not apply and the claimant bore the burden of establishing all
the elements necessary to support an award, which the Board found the claimant
had not met. Id. at ___, slip op. at 24-25.
             On appeal, the claimant argued that the Board erred by interpreting
Section 301(f) as requiring that a firefighter asserting a claim under Section 108(r)
file the claim within 300 weeks rather than requiring only that a compensable
disability manifest within 300 weeks as courts have interpreted Section 301(c)(2).
Id. at ___, slip op. at 32-33. This Court rejected this argument, holding that the
date of filing of the claim was determinative under Section 301(f). Id. at ___, slip
op. at 34-35. Observing that more than 300 weeks had passed from June 2006, the
conclusion of the period at which the claimant alleged his disability ceased, to
April 2012 when he filed the claim, and any workplace exposure after June 2006
could not be causally related to his earlier disability, we affirmed the determination
by the Board that the Claimant was not entitled to the statutory presumption. Id.
             Thus, Section 301(f) sets forth a two-tiered limitations period for
Section 108(r) claims distinct from the time limit in Section 301(c)(2). 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 301(f). However, if the claimant does not file



                                          10
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.
                  Claimant next argues 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 that provision is subject to a discovery rule to extend the time for filing.
Claimant cites Price v. Workmen’s Compensation Appeal Board (Metallurgical
Resources), 626 A.2d 114 (Pa. 1993), in which our Supreme Court held that the
three-year statute of limitations of Section 315 of the Act7 for filing a claim for
compensation does not begin to run in occupational disease cases until the claimant
knows or should know that he is disabled as a result of an occupational disease,
which is presumed to occur only when the claimant receives a competent medical
diagnosis that his illness is work-related. Id. at 115. Claimant argues that a
firefighter diagnosed with cancer must have the same extension of the period to file
a claim for occupational disease benefits as a claimant who contracts any other
occupational disease as to which the discovery rule of Section 315 applies.
                  We agree with the Board that the 600-week limitations period of
Section 301(f) acts as a statute of repose and is not subject to a discovery rule
under Price. Our Supreme Court has explained the difference between a statute of
limitations and a statute of repose as follows:


7
    Section 315 provides, in relevant part, that:
      In cases of personal injury all claims for compensation shall be forever barred, unless,
      within three years after the injury, the parties shall have agreed upon the compensation
      payable under this article; or unless within three years after the injury, one of the parties
      shall have filed a petition as provided in article four hereof. ... The term “injury” in this
      section means, in cases of occupational disease, disability resulting from occupational
      disease.
77 P.S. § 602.

                                                    11
             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), 883 A.2d 579, 588 n.11 (Pa. 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 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.
                                          12
             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.
             Accordingly, because Claimant filed his claim petition in March 2014,
more than 600 weeks after July 31, 2001 when Claimant could have last been
exposed to carcinogens in the workplace, we conclude that the claim petition is
untimely under Section 301(f). The order of the Board is affirmed.




                                       ____________________________________
                                       JAMES GARDNER COLINS, Senior Judge




                                         13
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Albert Fargo,                          :
                                       :
                  Petitioner           :
                                       :
            v.                         : No. 2239 C.D. 2015
                                       :
Workers’ Compensation Appeal           :
Board (City of Philadelphia),          :
                                       :
                  Respondent           :

                                  ORDER


            AND NOW, this 11th day of October, 2016, the order of the Workers’
Compensation Appeal Board in the above matter is affirmed.


                                    ____________________________________
                                    JAMES GARDNER COLINS, Senior Judge
