                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

City of Warren,                                 :
                        Petitioner              :
                                                :
                 v.                             : No. 468 C.D. 2016
                                                : Argued: December 14, 2016
Workers’ Compensation Appeal                    :
Board (Thomas Haines, Deceased,                 :
by Sharon Haines, Claimant),                    :
                  Respondent                    :


BEFORE:          HONORABLE MARY HANNAH LEAVITT, President Judge
                 HONORABLE RENÉE COHN JUBELIRER, Judge
                 HONORABLE ROBERT SIMPSON, Judge
                 HONORABLE PATRICIA A. McCULLOUGH, Judge
                 HONORABLE ANNE E. COVEY, Judge
                 HONORABLE MICHAEL H. WOJCIK, Judge
                 HONORABLE JULIA K. HEARTHWAY, Judge

OPINION
BY PRESIDENT JUDGE LEAVITT                                            FILED: March 9, 2017

                 The City of Warren (Employer) petitions for review of an adjudication
of the Workers’ Compensation Appeal Board (Board) granting the fatal claim
petition of Sharon Haines (Claimant), widow of Thomas Haines (Decedent), who
died of colon cancer six years after he retired from the Warren Fire Department.
The Board concluded that Decedent’s colon cancer was an occupational disease
under the Workers’ Compensation Act (Act),1 and, thus, compensable. Employer
contends that the Board’s conclusion was erroneous. First, Employer contends that
Decedent’s claim for compensation had extinguished under the applicable statute
of repose, and the legislature’s subsequent enactment of a different statute of


1
    Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
repose, specific to firefighters who develop cancer, did not revive Decedent’s
extinguished claim. Second, Employer contends that Claimant did not prove that
Decedent’s cancer was work-related because her medical evidence did not satisfy
the Frye2 standard for expert evidence.

                                           Background

                 On January 17, 2012, Claimant filed a fatal claim petition seeking
workers’ compensation benefits as the dependent wife of Decedent. In addition,
the Estate of Decedent filed a claim petition for the payment of medical bills
incurred for the treatment of Decedent’s colon cancer.          Decedent worked for
Employer as a firefighter from January of 1970 until his retirement on February 2,
2003. He died on August 18, 2009, approximately 341 weeks after his retirement.
                 While working at the department, Decedent fought fires in houses and
in industrial facilities, such as refineries. When responding to the different fires,
Decedent was exposed to smoke, soot, and other carcinogens, including asbestos.
At the firehouse, Decedent was exposed to diesel fumes and cigarette smoke.
Decedent smoked moderately for several years, and he drank alcoholic beverages
on social occasions.
                 In support of the claim petitions, Claimant introduced the deposition
testimony of Barry L. Singer, M.D., who is board certified in internal medicine,
hematology, and medical oncology. In a letter dated January 10, 2012, Dr. Singer
opined that the direct cause of Decedent’s death was his “incurable Stage IV colon
cancer,” which was diagnosed in August 2008. Reproduced Record at 209a-211a
(R.R. ___). In August of 2009, Decedent died of respiratory failure, sepsis, and

2
    Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).


                                                  2
pneumonia, secondary to his cancer. Decedent’s work as a firefighter exposed him
to carcinogens, including asbestos, described by Dr. Singer as “a known cause of
adenocarcinoma of the bowel.” R.R. 211a. Dr. Singer opined that Decedent’s
“30-some-year career in the fire department” was a substantial contributing factor
in his development of colon cancer and, ultimately, his death. Notes of Testimony
(N.T.), 9/28/2012, at 34; R.R. 133a.
               In opposition, Employer presented the deposition testimony of Tee
Guidotti, M.D., M.P.H., who is board certified in internal medicine, pulmonary
medicine, and occupational medicine; he is trained in toxicology and
epidemiology.3 For 20 years, Dr. Guidotti has been investigating the relationship
between cancer and the exposure to toxins sustained by those engaged in
firefighting; he has testified as an expert on occupational disease and methodology
on numerous occasions.
               Dr. Guidotti criticized Dr. Singer’s report, from which he “could not
really discern that any methodology was, in fact, used.” N.T., 1/21/2013, at 22;
R.R. 1019a.4 Dr. Guidotti explained that Dr. Singer’s work did “not meet the
standards generally accepted in the scientific or medical communities for
evaluating general causation in an occupational case.” R.R. 1253a.

3
  Dr. Guidotti explained that, “[t]oxicology is often called the science of poisons. It actually has
more to do with the science of how chemicals affect the body and how the body responds to
those chemicals.” N.T., 1/21/2013, at 10; R.R. 1007a.
4
  City of Philadelphia Fire Department v. Workers’ Compensation Appeal Board (Sladek), 144
A.3d 1011 (Pa. Cmwlth. 2016) (en banc), appeal granted (Pa., No. 405 EAL 2016, filed March
1, 2017), sets forth in greater detail Dr. Guidotti’s criticisms of Dr. Singer’s reports and
methodology. Dr. Guidotti observed that Dr. Singer’s reports were “almost rubber-stamped[,]”
did not discuss alternative explanations, and reached “conclusions [that] were identical.” Id. at
1017. Dr. Guidotti criticized Dr. Singer’s lack of knowledge of the Bradford Hill criteria,
suggesting that he was “not familiar with mainstream epidemiology methodology.” Id.


                                                 3
              Employer also offered the report and deposition testimony of Julia
Greer, M.D., a professor at the University of Pittsburgh School of Medicine, who
specializes in gastroenterology. Dr. Greer opined that “demographic, behavioral,
and lifestyle factors, including [Decedent’s] advanced age, obesity, alcohol
consumption, cigarette smoking, and intake of high heat-cooked red meat, were the
causal factors in [Decedent’s] development of colon adenocarcinoma.”                   R.R.
1436a. Dr. Greer also stated that there is “no statistically significant, consistent
evidence implicating [petrochemicals] in the etiology of colon cancer and no
studies have demonstrated an increased risk of colon cancer among fire fighters as
a consequence of such exposures.” R.R. 1444a. This is true even for firefighters
with 30 or more years of employment as firefighters. Dr. Greer opined that
Decedent’s “personal risk factors were of … a greater magnitude than his
exposures to carcinogens [in] firefighting….” N.T., 1/7/2013, at 37; R.R. 1324a.
              The WCJ found that Decedent died from colon cancer “due to his
exposure to [International Agency for Research on Cancer (IARC)] Group I
carcinogens, including benzene and asbestos, in the form of fire smoke, diesel fuel
emissions and soot, in his job as a firefighter for the [City]” and granted Claimant’s
fatal claim petition. WCJ Decision, 1/23/2014, at 15; Finding of Fact No. 25; R.R.
33a. However, the WCJ denied the Estate’s claim petition for medical benefits.
The WCJ denied Employer’s Frye motion to have Dr. Singer’s expert evidence
ruled inadmissible; the WCJ found that Dr. Singer was highly qualified to offer an
expert opinion.5


5
 In support of its Frye motion, Employer made two arguments. First, Employer argued that Dr.
Singer was incompetent to testify because his methodology was not shown to be generally
accepted in the scientific community. Second, Employer argued that Dr. Singer did not use any
(Footnote continued on the next page . . . )
                                             4
              Employer appealed to the Board, asserting that the fatal claim petition
was time-barred and that, in any case, causation was not proved. The Board
affirmed the WCJ.
              The Board rejected Employer’s contention that Claimant’s fatal claim
petition was time barred. Decedent’s last exposure to carcinogens in the workplace
was on or about December 25, 2002, and he died of cancer on August 18, 2009. In
2011, the legislature enacted Act 46,6 which amended the Act by adding Sections
108(r) and 301(f). 77 P.S. §§27.1(r), 414. Prior to Act 46, a firefighter could
submit an occupational disease claim for cancer under Section 108(l) of the Act
(cancers resulting from exposure to asbestos) and under Section 108(n) of the Act
(the “catch-all” provision). 77 P.S. §§27.1(l), 27.1(n). A firefighter could proceed
under these provisions by showing that his cancer was causally related to
firefighting and that the incidence of that cancer is higher in firefighters than in the
general population. The Board concluded that the Act 46 amendments merely
clarified existing law.     The Board acknowledged that its holding meant that
employers will be made liable for claims that they believed to have extinguished
under prior law. Nevertheless, the Board did not believe that its interpretation of
Act 46 imposed an impermissible retroactive application of a new law because Act
46 effected a procedural, not a substantive, change in law.
              The Board also rejected Employer’s argument that Dr. Singer’s
causation opinion was not competent under the “Frye test” set forth in Frye v.
United States, 293 F. 1013 (D.C. Cir. 1923), and Grady v. Frito-Lay, Inc., 839

(continued . . . )
method, let alone a generally accepted methodology in the scientific community. Rather, Dr.
Singer used faulty deductive reasoning in reaching his conclusions.
6
  Act of July 7, 2011, P.L. 251, No. 46.


                                            5
A.2d 1038 (Pa. 2003). The Board held that the Frye standard applies in workers’
compensation proceedings and, further, that Dr. Singer’s expert opinion satisfied
the Frye standard. The Board noted that Dr. Singer conducted 100 hours of
research and relied upon scientific and medical studies to opine on the link
between firefighting and colon cancer. Likewise, the Board found Dr. Singer’s
differential diagnosis methodology to be an acceptable methodology on which to
base his causation opinion.     The Board dismissed Employer’s Frye standard
argument as no more than an attempt to invade the WCJ’s fact finding
responsibility.
              On appeal, Employer presents two issues. First, Employer argues the
Board erred in applying Act 46 retroactively to resurrect a claim that had
extinguished under the law governing at the time of Decedent’s injury and death.
Second, Employer argues that although the Board correctly ruled that Frye applied
to workers’ compensation cases, it erred in its application of the Frye test to the
facts of this case.
                                     Analysis
              We begin with a review of the statutory provisions relevant to
occupational disease. Section 301(c)(2) of the Act states that a compensable
“injury” includes “occupational disease as defined in section 108 of this act.” 77
P.S. §411(2). In turn, Section 108 of the Act lists a number of occupational
diseases, including radium poisoning, asbestosis, tuberculosis, and silicosis. 77
P.S. §27.1. The Act imposes a time limit upon a claimant’s ability to present an
occupational disease claim. Section 301(c)(2) states:

              [W]henever 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
                                         6
              an occupation or industry to which he was exposed to hazards
              of such disease: And provided further, That if the employe’s
              compensable disability has occurred within such period, his
              subsequent death as a result of the disease shall likewise be
              compensable.

77 P.S. §411(2) (emphasis added). Stated otherwise, the employee’s disability or
death must occur within 300 weeks of his last date of employment for the
occupational disease to be compensable.
              In 2011, the General Assembly enacted Act 46, which, inter alia,
added cancer to the list of occupational diseases for firefighters, but not for other
workers. This addition is found in Section 108(r), and it states:

              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).      Recently, this Court held that Section 108(r) requires the
firefighter to show that the Group 1 carcinogens to which he was exposed have
been shown to cause the type of cancer for which the claimant has been diagnosed.
Sladek, 144 A.3d at 1021-22.7            Sladek clarified that only after a firefighter
establishes that his cancer is an occupational disease under Section 108(r) of the
Act do the rebuttable presumptions in Sections 301(e)8 and (f) come into play.9

7
  Notably, in this case, a differently composed Board has construed Section 108(r) of the Act as
this Court construed it in Sladek, 144 A.3d at 1021-22, i.e., that the firefighter must show his
cancer is a type of cancer caused by Group 1 carcinogens in order for that cancer to be an
“occupational disease.”
8
  Section 301(e) was added by Section 3 of the Act of October 17, 1972, P.L. 930. Section
301(e) of the Act establishes a “presumption regarding occupational disease” that applies to any
occupational disease sustained by any employee in any line of work, and states:
        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
(Footnote continued on the next page . . . )
                                               7
               Act 46 set a time limitation on the presentation of an occupational
disease claim under Section 108(r) of the Act. Section 301(f) of the Act states, in
relevant part, as follows:

               Notwithstanding the limitation under subsection (c)(2) [of
               Section 301] 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.

77 P.S. §414 (emphasis added). In short, Act 46 created a new time limitation for
a Section 108(r) claim by a firefighter that his cancer is an occupational disease
and, thus, compensable. Instead of the limit of 300 weeks that applies to all other
occupational diseases, a claim filed under Section 108(r) may be made within 600
weeks after the last date of exposure to the hazards of the disease. 77 P.S. §414. It
is not necessary that the firefighter sustain disability or die within 600 weeks. Act
46 became effective immediately.10


(continued . . . )
        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.
77 P.S. §413.
9
  In Sladek, the WCJ did not rule on whether the claimant’s evidence showed that his cancer, i.e.,
melanoma, is a type of cancer caused by exposure to Group 1 carcinogens; accordingly, this
Court remanded the case. Sladek, 144 A.3d at 1022.
10
   Act 46 provides:
        Section 4. The provisions of this act shall apply to claims filed on or after the
        effective date of this section.
        Section 5. This act shall take effect immediately.
(Footnote continued on the next page . . . )
                                                8
               The question is whether Act 46 was intended to apply prospectively or
retroactively. We have long held that “statutes are to be construed to operate
prospectively,” absent clear language to the contrary. Department of Labor and
Industry, Bureau of Employment Security v. Pennsylvania Engineering
Corporation, 421 A.2d 521, 523 (Pa. Cmwlth. 1980) (citations omitted). Indeed,
our legislature has directed that “[n]o statute shall be construed to be retroactive
unless clearly and manifestly so intended by the General Assembly.” 1 Pa. C.S.
§1926. The Legislative Reference Bureau, which is the “supporting agency of the
General Assembly,” has adopted regulations that, inter alia, relate to the drafting
of legislation. 101 Pa. Code §1.1. One such regulation contains specific directions
on the drafting of a retroactivity clause, and it states as follows:

               §15.71. Retroactivity clause.
               (a) Use. If a statute is to apply retroactively, it is necessary to
               include a provision to achieve this effect. The act (1 Pa. C.S.
               §1926) provides that no statute shall be construed to be
               retroactive unless clearly and manifestly so intended by the
               General Assembly.
               (b) Form. A retroactive provision may be in substantially the
               following form:
               “This act shall take effect immediately and shall be retroactive
               to January 1, 1973.”

101 Pa. Code §15.71. Act 46 does not contain a retroactivity clause. Act 46 states
that it is effective immediately, but it does not state that it is retroactive to a
specific date.


(continued . . . )
Act of July 7, 2011, P.L. 251, No. 46.


                                            9
             A statute is not retroactive “merely because some of the facts or
conditions upon which its application depends came into existence prior to its
enactment.” Gehris v. Department of Transportation, 369 A.2d 1271, 1273 (Pa.
1977). Our Supreme Court has explained the distinction as follows:

             The general rule in determining whether a statute will be
             applied retroactively is as follows: “Legislation which affects
             rights will not be construed to be retroactive unless it is
             declared so in the act. But, where it concerns merely the mode
             of procedure, it is applied, as of course, to litigation existing at
             the time of its passage....”

Galant v. Department of Environmental Resources, 626 A.2d 496, 498 (Pa. 1993)
(citing Universal Cyclops Steel Corporation v. Workmen’s Compensation Appeal
Board, 305 A.2d 757, 761 (Pa. Cmwlth. 1973) (quoting Kuca v. Lehigh Valley
Coal Company, 110 A. 731, 732 (Pa. 1920))). Here, the question is whether Act
46 effected a substantive change in the law or changed “merely the mode of
procedure” with respect to “litigation existing” at the time of the act’s passage. Id.
             Employer argues that Act 46 effected a substantive change in the law.
It established a new occupational disease for a particular class of employee, a
firefighter, not previously established in the Act, and it erected a new statute of
repose for these claims.     Claimant responds that Act 46 merely changed the
procedure for an occupational disease claim that had been previously available
under the Act. Prior to Act 46, any employee, including a firefighter, could seek
compensation for cancer caused by occupational exposures. See, e.g., Section
108(l) of the Act, 77 P.S. §27.1(l) (cancer resulting from exposure to asbestos); and
Section 108(n) of the Act, 77 P.S. §27.1(n) (occupational disease, of any kind, is
shown where the incidence is greater than in the general population). Claimant


                                          10
argues that Sections 108(r) and 301(f) provide another procedure for seeking
compensation for an occupational disease. 77 P.S. §§27.1(r), 414.
            A statute of limitations extinguishes the remedy; a statute of repose
extinguishes both the remedy and the right. Accordingly, a statute of limitations is
procedural, and a statute of repose is substantive.       The difference has been
explained 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.

Westinghouse Electric Corporation/CBS v. Workers’ Compensation Appeal Board
(Korach), 883 A.2d 579, 588 n.11 (Pa. 2005) (citation omitted) (emphasis added).
The triggering event for a statute of repose is something other than the point at
which the cause of action accrues. Miller v. Stroud Township, 804 A.2d 749, 752
(Pa. Cmwlth. 2002).
            Recently, in Fargo v. Workers’ Compensation Appeal Board (City of
Philadelphia), 148 A.3d 514, 521 (Pa. Cmwlth. 2016), petition for allowance of
appeal filed (Pa., No. 486 EAL 2016, filed November 4, 2016), this Court
concluded that “the 600-week limitations period of Section 301(f) acts as a statute




                                        11
of repose ....”11 (emphasis added). This is because the 600-week period of Section
301(f) is triggered by a specific event, i.e., the last day of exposure to a workplace
hazard, which is independent of the accrual of a remedy. Id. Because Section
301(f) of the Act is a statute of repose, it effected a substantive change in the law.
As such, it cannot have a retroactive effect without a clear directive from the
legislature, and Act 46 lacks that clear directive.12
              At the time of Decedent’s death, Section 301(c)(2) of the Act
governed the limitation for his submission of an occupational disease claim. It
states, in relevant part, as follows:

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

77 P.S. §411(2) (emphasis added).             In Antonucci v. Workers’ Compensation
Appeal Board (U.S. Steel Corporation), 576 A.2d 401, 405 n.7 (Pa. Cmwlth.
1990), this Court held that Section 301(c)(2) is “a statute of repose, which
completely extinguishes the right and not merely the remedy.”                    Likewise, in
Abrams v. Pneumo Abex Corporation, 981 A.2d 198, 212 n.10 (Pa. 2009), our
Supreme Court explained, in dicta, that Section 301(c)(2) is a statute of repose. To


11
   Also, 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 filed
(Pa., No. 27 EAL 2017, filed January 17, 2017), this Court concluded that Section 301(f) of the
Act was a statute of repose.
12
   Because we determine that Section 301(f) of the Act is a statute of repose and that the WCJ
and Board erred in applying this section retroactively, we need not consider whether the addition
of Section 108(r) of the Act is a procedural or substantive law change.


                                               12
satisfy the limitation in Section 301(c)(2), a claimant’s disability or death from the
occupational disease must occur within 300 weeks of last exposure to a hazard.
That did not happen with Decedent.
               Decedent last fought a fire on December 25, 2002.13 He retired on
February 2, 2003, and he died on August 18, 2009. Assuming that December 25,
2002, was the date of Decedent’s last exposure to a hazard, Decedent died
approximately 347 weeks after his last day of exposure. His death did not occur
within 300 weeks after Decedent’s last exposure to a hazard. Nor did he suffer a
disability within that time period. Under Section 301(c)(2) of the Act, Decedent’s
right to seek compensation for his cancer had extinguished before Act 46 was
enacted. 77 P.S. §411(2).
               Claimant argues that under our Supreme Court’s decision in City of
McKeesport v. Miletti, 746 A.2d 87 (Pa. 2000), a fatal claim petition does not need
to be filed within 300 weeks of the firefighter’s last day of exposure. In City of
McKeesport, the decedent retired on August 31, 1983, after working as a firefighter
for approximately 30 years.           On February 25, 1993, decedent died, and on
September 27, 1993, his wife filed a fatal claim petition alleging that her husband
died from a work-related lung disease, for which he began treatment on July 24,
1986. Finding that the claimant had produced credible medical testimony that the
decedent was disabled prior to July 24, 1986, the WCJ granted the fatal claim
petition. The Supreme Court agreed, holding that “Section 301(c)(2) specifically


13
   Employer contends that there is no evidence or testimony regarding the date that Decedent was
last exposed to a hazard in his occupation. Although testimony established that Decedent
responded to a fire on December 25, 2002, the witness did not recall how Decedent participated,
whether in the suppression stage or overhaul stage of the fire. The exposure to toxins is different
in each stage of a fire response.


                                                13
permits fatal claim benefits so long as the disability occurred within 300 weeks of
exposure.” Id. at 90 (emphasis in original). Where the disability develops within
300 weeks, the “time of death and the filing of a lifetime claim petition are
irrelevant to a determination of the timeliness of a fatal claim petition.”     Id.
(footnote omitted).
             City of McKeesport is distinguishable. Here, there is no evidence that
Decedent was disabled within 300 weeks of his last date of exposure. Claimant
presented no such evidence, and the WCJ did not find that Decedent was disabled
as a result of his cancer, let alone identify the date when any alleged disability
occurred.
             Employer argues that to apply Act 46 retroactively would be
unconstitutional under the “due course of law” provision of the Pennsylvania
Constitution, which states:

             All courts shall be open; and every man for an injury done him
             in his lands, goods, person or reputation shall have remedy by
             due course of law, and right and justice administered without
             sale, denial or delay. Suits may be brought against the
             Commonwealth in such manner, in such courts and in such
             cases as the Legislature may by law direct.

PA. CONST. art. I, §11 (emphasis added). Legislation that purports to revive an
expired claim violates the constitutional guarantee of “due course of law.” See
Maycock v. Gravely Corp., 508 A.2d 330, 334 n.3 (Pa. Super. 1986) (quoting
Overmiller v. D.E. Horn & Co., 159 A.2d 245, 249 (Pa. Super. 1960)). Our
Superior Court has also held as follows:

             [A] statute of repose ... completely extinguishes the right and
             not merely the remedy, and may be invoked even though it has
             not been pleaded. If the right is completely extinguished we do
             not see how it could be revived or reinstated.

                                           14
Jericho v. Liggett Spring & Axle Co., 106 A.2d 846, 850 (Pa. Super. 1954)
(emphasis in original). The principle that an extinguished right cannot be revived
protects the party with an absolute defense to the extinguished claim:

             A legal exemption from liability on a particular demand,
             constituting a complete defense to an action brought, stands on
             quite as high ground as a right of action. If the law of the case
             at the time when it became complete is such an inherent
             element in it that a plaintiff may claim it as a vested right, on
             what possible ground can it be held that a defendant has no
             vested right with respect to an exemption or defense? The
             authorities make no distinction between them. ‘So he who was
             never bound either legally or equitably cannot have a demand
             created against him by mere legislative action.’ ... ‘A law can
             be repealed by the lawgiver; but the rights which have been
             acquired under it, while it was in force, do not thereby cease. It
             would be an act of absolute injustice to abolish with the law all
             the effects which it had produced....’ Since the effect of the
             construction contended for would be to impose a liability for a
             past occurrence where none existed at the time, or, what is the
             same thing, take away a legal defense available at the time, it is
             to be avoided. It follows that the plaintiff’s case is to be
             adjudged under the act of 1868, the law of the case when the
             present cause of action became complete. Her rights are just
             what they would have been had her husband been an employe
             of the defendant company.

Lewis v. Pennsylvania R. Co., 69 A. 821, 823 (Pa. 1908) (internal citations
omitted). See also Konidaris v. Portnoff Law Associates, Ltd., 953 A.2d 1231,
1242 (Pa. 2008) (recognizing extension of the remedies clause to defenses).
             The expiration of Claimant’s right to pursue compensation under the
statute of repose in Section 301(c)(2) gave Employer an “accrued defense” that
cannot be taken away. To do so would violate Employer’s constitutional right to
“due course of law.” We avoid this result in construing Act 46 to establish a new
statute of repose for occupational disease claims brought under Section 108(r) of

                                         15
the Act, but only where the right to bring the claim had not previously expired
under Section 301(c)(2) of the Act.
                                      Conclusion
             The WCJ and Board erred in applying the 600-week limitations period
of Section 301(f) of the Act retroactively to Claimant’s fatal claim petition, which
is barred as a matter of law. For these reasons, the order of the Board is reversed.14

                                     ______________________________________
                                     MARY HANNAH LEAVITT, President Judge




14
  Because we hold that the fatal claim petition was not timely filed, we need not address
Employer’s Frye standard issue.


                                           16
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

City of Warren,                       :
                  Petitioner          :
                                      :
            v.                        : No. 468 C.D. 2016
                                      :
Workers’ Compensation Appeal          :
Board (Thomas Haines, Deceased,       :
by Sharon Haines, Claimant),          :
                  Respondent          :


                                  ORDER

            AND NOW, this 9th day of March, 2017, the order of the Workers’
Compensation Appeal Board dated March 7, 2016, in the above-captioned matter
is hereby REVERSED.

                                  ______________________________________
                                  MARY HANNAH LEAVITT, President Judge
