L. Campbell v. WCAB (City of Philadelphia) ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lawrence Campbell, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (City of Philadelphia), : No. 1385 C.D. 2016
Respondent : Submitted: January 13, 2017
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE JOSEPH M. COSGROVE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: June 28, 2017
Lawrence Campbell (Claimant) petitions this Court for review of the
Workers’ Compensation (WC) Appeal Board’s (Board) July 26, 2016 order affirming
the Workers’ Compensation Judge’s (WCJ) decision denying Claimant’s Claim
Petition (Claim Petition) and Petition for Penalties (Penalty Petition). The sole issue1
before this Court is whether the Board misinterpreted Section 301(f) of the WC Act
(Act),2 77 P.S. § 414, to require Claimant to file his Claim Petition within 300 weeks
in order to claim benefits under Section 108(r) of the Act, 77 P.S. § 27.1(r).3 After
review, we affirm.
1
Claimant also presented the issue of whether the discovery rule extends the time that
Claimant had to file the Claim Petition. However, because the second issue is subsumed in the
analysis of the first, we have combined the issues herein.
2
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.1, 2501-2708.
3
Sections 301(f) and 108(r) of the Act were added by Section 1 of the Act of July 7, 2011,
P.L. 251.
Claimant was employed by the City of Philadelphia (Employer) as a
firefighter from January 8, 1968 until he retired in September 2003. On August 6,
2012, Claimant filed his Claim Petition seeking lost wages due to full disability from
September 20, 2002 to October 17, 2002, plus medical benefits arising from his work
injury, described as prostate cancer. See Certified Record (C.R.) Item 1. Claimant
stated therein that Employer was notified of his disease by the August 6, 2012 Claim
Petition filing. C.R. Item 1 at 2. Employer denied Claimant’s allegations and raised
various affirmative defenses. See C.R. Item 3. On October 12, 2012, Claimant filed
his Penalty Petition claiming that Employer violated Section 131.61 of the
Department of Labor and Industry’s (Department) Regulations, 34 Pa. Code § 131.61(relating to pre-hearing exchange of information). See C.R. Item 6.
WCJ hearings were held on November 6, 2012, March 6, May 14,
August 27 and October 29, 2013 and November 3, 2014. By February 19, 2015
decision, the WCJ denied the Claim Petition and the Penalty Petition. The WCJ ruled
that Claimant did not provide timely injury notice, did not prove that his cancer was
caused by his employment, and did not meet his burden of proof on the Penalty
Petition. Claimant appealed to the Board.4 On July 26, 2016, the Board determined
that Claimant timely notified Employer of his work injury, but ultimately upheld the
WCJ’s denial of the Claim Petition “because the WCJ did not accept Claimant’s
medical expert’s opinion that his occupational exposures were a substantial
contributing factor in the development of his prostate cancer, he could not meet his
burden of proof.” Board Op. at 26 n.16. Claimant appealed to this Court.5
4
Claimant only appealed from the WCJ’s determination on the Claim Petition.
5
“On review[,] this Court must determine whether constitutional rights were violated, errors
of law were committed, or necessary findings of fact were supported by substantial competent
evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d 598, 601 n.6
(Pa. Cmwlth. 2014).
2
Initially,
[a]n injured employee seeking to obtain workers’
compensation benefits for a work-related injury bears the
burden of proving all elements necessary to support an
award. Pursuant to Section 301(c)(1) of the Act, 77 P.S. §
411(1), an employee’s injuries are compensable if they (1)
arise in the course of employment and (2) are causally
related thereto.
Amandeo v. Workers’ Comp. Appeal Bd. (Conagra Foods), 37 A.3d 72, 75 n.4 (Pa.
Cmwlth. 2012) (citation omitted). Section 301(c)(2) of the Act provides, in relevant
part:
The terms ‘injury,’ ‘personal injury,’ and ‘injury arising in
the course of his employment,’ as used in this [A]ct, shall
include . . . occupational disease as defined in [S]ection
108 of this [A]ct: Provided, That whenever occupational
disease is the basis for compensation, for disability or death
under this [A]ct, it shall apply only to disability or death
resulting from such disease and occurring within three
hundred weeks[6] after the last date of employment[7] in
an occupation or industry to which he was exposed to
hazards of such disease[.]
77 P.S. § 411(2) (emphasis added). Section 108 of the Act defines the term
“occupational disease” to include “(r) [c]ancer suffered by a firefighter which is
6
“Three hundred weeks is the equivalent of five years, nine months and one week.” City of
McKeesport v. Workers’ Comp. Appeal Bd. (Miletti), 746 A.2d 87, 89 n.5 (Pa. 2000).
7
The Pennsylvania Supreme Court has declared:
Although Section 301(c)(2) [of the Act] references the employee’s
‘last date of employment,’ 77 P.S. § 411(2), . . . the 300-week period
begins on the last day of employment-based exposure to the
hazard. See Sporio v. [Workmen’s Comp. Appeal Bd.] (Songer
Constr.), . . . 717 A.2d 525 [] ([Pa.] 1998); Cable v. [Workmen’s
Comp. Appeal Bd.] (Gulf Oil/Chevron USA), . . . 664 A.2d 1349 []
([Pa.] 1995) (plurality).
Tooey v. AK Steel Corp., 81 A.3d 851, 870 n.6 (Pa. 2013) (emphasis added); see also Farr v.
Workers’ Comp. Appeal Bd. (TRW, Inc.), 823 A.2d 1043, 1046 (Pa. Cmwlth. 2003) (“[t]he three-
hundred week period prescribed in [Section 301(c)(2) of] the Act is measured from the last date of
exposure to the hazard alleged to cause the disease, not from the last date of employment”).
3
caused by exposure to a known carcinogen which is recognized as a Group 1
carcinogen by the International Agency for Research on Cancer [(IARC)].” 77 P.S. §
27.1.
Section 301(f) [of the Act] sets forth three requirements that
a firefighter-claimant must show to establish a claim under
Section 108(r) [of the Act]: (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), 144 A.3d 1011 (Pa. Cmwlth. 2016) (en banc)[8],
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 1021 (quoting 77 P.S. § 27.1(r)); see
also Hutz v. Workers’ Comp[.] Appeal B[d.] (City of
Phila[.]), 147 A.3d 35 [] (Pa. Cmwlth. [2016]). 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.[FN]3 Hutz,
147 A.3d at 50; Sladek, 144 A.3d at 1021.
[FN]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.’
Fargo v. Workers’ Comp. Appeal Bd. (City of Phila.), 148 A.3d 514, 516 (Pa.
Cmwlth. 2016) (emphasis added). Accordingly, this Court has held that
8
The Pennsylvania Supreme Court granted a petition for allowance of appeal on March 1,
2017 at Docket No. 405 EAL 2016 (transferred to Docket No. 13 EAP 2017).
4
the presumption of causation in Section 301(e) 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 prior to that
service, he is entitled to compensation under Section 301(f)
[of the Act].
Hutz, 147 A.3d at 50 (emphasis added).
Section 301(f) of the Act further provides:
Notwithstanding the limitation under [Section 301](c)(2) [of
the Act] 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 [S]ection 108(r) [of the Act] 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 (emphasis added).
Claimant argues that the Board misinterpreted Section 301(f) of the Act
to require that he file his Claim Petition within the 300-week occupational disease
manifestation period in order to gain the rebuttable presumption of compensability
under Section 301(e) of the Act. Specifically, Claimant contends that he is entitled to
the presumption since “[w]hen Sections 301(c)(2) and 301(f) [of the Act] are read
together, . . . the 300[-]week period for manifestation of an occupational disease is
extended to 600 weeks for firefighters diagnosed with cancer.” Claimant Br. at 20.
Claimant further maintains that the discovery rule extended the time that he had to
file the Claim Petition.9 We disagree.
9
The discovery rule ‘is a judicially[-]created tenet of statutory
construction applicable to statutes of limitation[] which operates to
5
The WCJ found: “While Claimant filed his Claim Petition within 600
weeks of his last date of employment, and therefore within the statute of limitations,
the [Claim] Petition was not filed within the first 300 weeks. As such, Claimant
would not be entitled to the presumption under Section 301(f) of the [Act]” that his
prostate cancer was related to his employment as a firefighter. WCJ Dec. at 20,
Finding of Fact (FOF) 20. The Board agreed. See Board Op. at 22.
Recently, in Capaldi v. Workers’ Compensation Appeal Board (City of
Philadelphia), 152 A.3d 1107 (Pa. Cmwlth. 2017),10 Demchenko v. Workers’
Compensation Appeal Board (City of Philadelphia), 149 A.3d 406 (Pa. Cmwlth.
2016),11 Fargo,12 Sladek,13 and Hutz,14 this Court analyzed and rejected the same
arguments Claimant presents here.15 In those decisions, this Court declared:
Section 301(f) [of the Act] sets forth a two-tiered
limitations period for Section 108(r) claims distinct from
the time limit in Section 301(c)(2) [of the Act]. 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
toll the running of a statute where the existence of a cause of action
cannot reasonably be ascertained within the prescribed time.’
Levenson v. Souser, 557 A.2d 1081, 1086 (Pa. Super. 1989) (citations
omitted).
Capaldi v. Workers’ Comp. Appeal Bd. (City of Phila.), 152 A.3d 1107, 1116 n.13 (Pa. Cmwlth.
2017).
10
Capaldi involved a firefighter vocal cord cancer claim.
11
Filed October 26, 2016 (firefighter prostate cancer claim). Even more recently, this Court
issued Szymanski v. Workers’ Compensation Appeal Board (City of Phila.) (Pa. Cmwlth. No. 494
C.D. 2016, filed February 14, 2017) (firefighter prostate cancer claim), and Lucas v. Workers’
Compensation Appeal Board (City of Sharon) (Pa. Cmwlth. No. 2606 C.D. 2015, filed December
20, 2016) (firefighter prostate cancer claim), in which this Court decided nearly identical issues as
those presented here.
12
Filed October 11, 2016 (firefighter various cancer claims).
13
Decided August 12, 2016 (firefighter prostate cancer claim).
14
Filed September 7, 2016 (firefighter melanoma claim).
15
The claimant’s counsel in each of those cases was Michael G. Dryden, Esquire, who
represents Claimant in the instant matter.
6
foreclosed from bringing a claim by Section 301(f) [of
the Act], but he loses the statutory presumption of
Sections 301(e) and 301(f) [of the Act]. 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.[16]
Fargo, 148 A.3d at 520 (emphasis added). Moreover, “in Sladek, Hutz[,]
Demchenko[, and Capaldi,] . . . [this Court] determined[, inter alia,] . . . that the
discovery rule[] applicable to the three-year statute of limitations in Section 315 of
the Act,[17] does not extend those respective filing periods in Section 301(f) [of the
Act].” Lucas v. Workers’ Comp. Appeal Bd. (City of Sharon) (Pa. Cmwlth. No. 2606
C.D. 2015, filed December 20, 2016), slip op. at 13;18 see also Fargo; Szymanski v.
Workers’ Comp. Appeal Bd. (City of Phila.) (Pa. Cmwlth. No. 494 C.D. 2016, filed
February 14, 2017).
Here, Claimant filed his Claim Petition on August 6, 2012. Even
assuming, arguendo, that Claimant retired effective September 30, 2003, and he was
16
As in Hutz and Fargo, Claimant here argues:
The plain language of Section 301(f) [of the Act] does not require the
filing of a petition as found by the [Board] and WCJ. Since [the
claimant] was diagnosed with [cancer] within 300 weeks of his last
carcinogen exposure at work, the decision to deny [the claimant] the
rebuttable presumption of compensability . . . is not supported by the
plain language of Sections 301(c)(2), 301(f) and 108(r) of the Act.
Claimant Br. at 18 (emphasis added). However, relying on the Hutz Court’s reasoning which is
based upon the final sentence of Section 301(f) of the Act, the Fargo Court declared “that it is the
date of filing that is determinative in Section 301(f) [of the Act] rather than the date that the
disability manifests[.]” Fargo, 148 A.3d at 520; see also Szymanski (“Whereas Section 301(c)(2)
[of the Act] simply requires the disability to ‘occur[]’ or manifest, the plain language of Section
301(f) [of the Act] requires the claim be ‘made,’ that is filed.”) Slip op. at 6; Lucas. Accordingly,
because we are bound by stare decisis, Claimant’s identical argument here must be rejected.
17
77 P.S. § 602. Section 315 of the Act states, in relevant part: “In cases of personal injury
all claims for compensation shall be forever barred, . . . unless within three years after the injury,
one of the parties shall have filed a petition as provided in article four hereof.” 77 P.S. § 602.
18
This Court’s unreported memorandum opinions may be cited “for [their] persuasive value,
but not as a binding precedent.” Section 414(a) of the Commonwealth Court’s Internal Operating
Procedures, 210 Pa. Code § 69.414(a).
7
exposed to a Group 1 carcinogen on that day, because his claim was filed nearly 462
weeks19 later, the WCJ and the Board properly concluded that although Claimant was
“not foreclosed from bringing a claim . . . , [] he [lost] the statutory presumption of
Sections 301(e) and 301(f) [of the Act].” Fargo, 148 A.3d at 520 (emphasis added).
Accordingly, in order for Claimant to qualify for WC benefits, Claimant had the
burden of proving his prostate cancer “ar[o]se in the course of employment and . . .
[is] causally related thereto.” Amandeo, 37 A.3d at 75 n.4; see also FOF 21.
The law is well established that “[t]he WCJ is the ultimate factfinder and
has exclusive province over questions of credibility and evidentiary weight.” Univ. of
Pa. v. Workers’ Comp. Appeal Bd. (Hicks), 16 A.3d 1225, 1229 n.8 (Pa. Cmwlth.
2011). “The WCJ, therefore, is free to accept or reject, in whole or in part, the
testimony of any witness, including medical witnesses.” Griffiths v. Workers’ Comp.
Appeal Bd. (Red Lobster), 760 A.2d 72, 76 (Pa. Cmwlth. 2000). Neither the Board
nor the Court may reweigh the evidence or the WCJ’s credibility determinations. Sell
v. Workers’ Comp. Appeal Bd. (LNP Eng’g), 771 A.2d 1246 (Pa. 2001). Specifically,
“Section 422(a) [of the Act, 77 P.S. § 834,] does not permit a party to challenge or
second-guess the WCJ’s reasons for credibility determinations. [Thus, u]nless made
arbitrarily or capriciously, a WCJ’s credibility determinations will be upheld on
appeal.”20 Pa. Uninsured Emp’rs Guar. Fund v. Workers’ Comp. Appeal Bd. (Lyle),
91 A.3d 297, 303 (Pa. Cmwlth. 2014) (quoting Dorsey v. Workers’ Comp. Appeal Bd.
(Crossing Constr. Co.), 893 A.2d 191, 195 (Pa. Cmwlth. 2006)).
19
Precisely, 461 weeks and 6 days.
20
Capricious disregard “occurs only when the fact-finder deliberately ignores
relevant, competent evidence.” Williams v. Workers’ Comp. Appeal Bd. (USX Corp.-Fairless
Works), 862 A.2d 137, 145 (Pa. Cmwlth. 2004). Capricious disregard, by definition, does not exist
where, as here, the WCJ expressly considered and rejected the evidence. Id. Claimant does not
assert that the WCJ made her credibility determinations arbitrarily or capriciously.
8
In the instant case, the WCJ, as factfinder, found the testimony of
Employer’s medical experts on causation more credible than the testimony of
Claimant’s medical experts. See FOFs 22-24. Claimant’s sole contention is that the
Board erred by upholding the WCJ’s ruling that Claimant was not entitled to the
causation presumption. Accordingly, because it is clear as a matter of law that
Claimant was not entitled to the presumption and, thus, had the burden of proving
causation but failed to do so, the Board properly affirmed the WCJ’s decision.
Based on the foregoing, the Board’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lawrence Campbell, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (City of Philadelphia), : No. 1385 C.D. 2016
Respondent :
ORDER
AND NOW, this 28th day of June, 2017, the Workers’ Compensation
Appeal Board’s July 26, 2016 order is affirmed.
___________________________
ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lawrence Campbell, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (City of Philadelphia), : No. 1385 C.D. 2016
Respondent : Submitted: January 13, 2017
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE JOSEPH M. COSGROVE, Judge
OPINION NOT REPORTED
DISSENTING OPINION
BY JUDGE COSGROVE FILED: June 28, 2017
For the reasons noted in my dissenting opinion in Szymanski v.
Workers’ Comp. Appeal Bd. (City of Philadelphia), (Pa. Cmwlth. No. 494 C.D.
2016, filed February 14, 2017), 2017 WL 582736, I must dissent here as well. In
both cases, firefighters are denied the presumptive benefits outlined in Act 46 1
because their cancers were not detected within 300 weeks of their last carcinogenic
exposure during their employment. As I was unable to agree with the Szymanski
majority's refusal to apply the discovery rule to the situation in that case, I likewise
cannot join the present majority.
1
Act of June 2, 1915, P.L. 77 P.S. §§ 414, added by Section 2 of the Act of July 7, 2011,
P.L. 251.
Cancer does not operate on a legislative calendar. It works its evil in
its own insidious way, planting itself in the body like a terror cell, waiting to
explode. It is well understood that firefighters work in a cauldron of carcinogens.
Which particular spray of dust, or fume, or inhalant causes which particular kind of
cancer a firefighter may suffer is something difficult (if not impossible) to discern.
Accordingly, the legislature adopted Act 46 to provide these first responders with a
particular form of protection, allowing work-related presumption if the cancer
claim is made within 300 weeks of exposure. Our Supreme Court has repeatedly
advised that "the [discovery] rule is an equitable one, which excludes the period of
time during which the injured party is reasonably unaware that an injury has been
sustained so that people in that class have essentially the same rights as those who
suffer an immediately ascertainable injury." Dalrymple v. Brown, 701 A.2d 164(Pa. 1997). Relevant in the civil context, this rule should be applied with equal
force (and under the same parameters) to circumstances such as those in this case.
The present majority's failure to agree, as in Szymanski, requires my dissent.
___________________________
JOSEPH M. COSGROVE, Judge
JMC-2