Fargo v. Workers' Compensation Appeal Board

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