K. Stahl v. WCAB (East Hempfield Twp.)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kenneth Stahl, :
Petitioner :
:
v. : No. 1575 C.D. 2019
: Submitted: February 14, 2020
Workers’ Compensation Appeal :
Board (East Hempfield Township), :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: August 14, 2020
Kenneth Stahl (Claimant) petitions for review of an order of the Workers’
Compensation Appeal Board (Board), dated October 30, 2019. The Board affirmed
a decision of a Workers’ Compensation Judge (WCJ), denying Claimant’s claim
petition for failure to provide timely notice pursuant to Section 311 of the Workers’
Compensation Act (Act).1 For the reasons set forth below, we affirm the Board’s
order.
To fully understand how this matter is presently before the Court, a summary
of the basic facts and procedural history from our decision of East Hempfield
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 631.
Township v. Workers’ Compensation Appeal Board (Stahl), 189 A.3d 1114
(Pa. Cmwlth. 2018) (Stahl I), is necessary and helpful:
Claimant began working as a volunteer firefighter
for [East Hempfield Township (Employer)] in 2002. Prior
to joining Employer, Claimant worked as a volunteer
firefighter for other fire departments since 1974. In 2006,
Claimant’s family physician diagnosed Claimant with
stomach cancer. Following his diagnosis, Claimant
underwent surgery and radiation therapy to treat his
illness. After being unable to work for approximately six
weeks, Claimant returned to work for Employer as a fire
police officer and no longer assumed the duties of a
firefighter. Claimant later chose to retire, with his last day
of employment being October 29, 2008.
On November 10, 2014, Claimant filed a claim
petition, alleging that he sustained stomach cancer due to
exposure to carcinogens during his tenure as a volunteer
firefighter for Employer. In so doing, Claimant sought
payment of medical bills and full disability benefits from
April 1 to June 1, 2006. Employer opposed Claimant’s
petition, and a WCJ scheduled a hearing. In support of his
claim petition, Claimant testified via deposition.
Claimant testified that during his tenure as a
firefighter, he was exposed to smoke and diesel fuel
emissions. After being diagnosed with stomach cancer,
Claimant transferred to the fire police position, as he
“didn’t want to risk going into anymore [sic] smoke . . . as
a firefighter.” Claimant testified that, as early as 2006 or
2007, he suspected there might be a connection between
his firefighting duties and his stomach cancer.
Claimant testified that sometime after July 2011, he
read an article discussing Pennsylvania’s passage of a law
regarding cancer in firefighters and how it may affect their
rights under the Act. After reading this article, Claimant
again suspected a connection between his service as a
firefighter and his cancer diagnosis. Thereafter, Claimant
sought the services of an attorney to discuss his workers’
compensation rights, and Claimant entered into a fee
agreement with counsel on August 5, 2012.
2
Claimant further testified that on
September 16, 2014, a doctor confirmed Claimant’s
beliefs regarding the relationship between Claimant’s
cancer and his service as a firefighter. This was the first
time Claimant received any indication from a doctor that
his service as a firefighter caused his cancer. Thereafter,
Claimant filed his claim petition.
By decision and order dated August 31, 2015, the
WCJ granted Claimant’s claim petition. Employer
appealed to the Board. By opinion and order dated
July 20, 2016, the Board opined that the WCJ erred in
applying an inapplicable presumption to Claimant’s claim
and remanded the matter to the WCJ to render a
determination without applying the presumption.
On remand, the WCJ again granted Claimant’s
claim petition. In so doing, the WCJ made the following
pertinent conclusions of law:
6. The “discovery rule” referenced by the
Pennsylvania Supreme Court in Price v.
[Workmen’s Compensation Appeal Board
(Metallurgical Resources, Inc.)], 626 A.2d
114 ([Pa.] 1993) is equally applicable to
Claimant’s obligation to establish that notice
of the work-related disease was provided to
Employer in accordance with Section 311 of
the Act . . . . Whether an employee has
provided timely notice is a mixed question of
law and fact. The courts had indicated that
the 120-day notice period does not begin to
run until an employee “knows or by the
exercise of reasonable diligence, has reason
to know of the injury and its possible
relationship to [his] employment.”
Reasonable diligence has been defined as a
reasonable effort to discover the cause of an
injury under the facts and circumstances
present in the case. In The Bullen Companies
v. [Workers’ Compensation Appeal Board]
(Hausmann), 960 A.2d 488 (Pa.
Cmwlth. 2008), [appeal denied, 972 A.2d
523 (Pa. 2009),] the court relying on Sell [v.
Workers’ Compensation Appeal Board (LNP
3
Engineering), 771 A.2d 1246 (Pa. 2001),]
noted that the “Section 311 rule requires
more than an employees’ suspicion, intuition
or belief.” Likewise, in A&J Builders, Inc. v.
[Workers’ Compensation Appeal Board]
(Verdi), [78 A.3d 1233 (Pa. Cmwlth. 2013)],
the court siting [sic] Sell reiterated that a
claimant’s obligation to provide notice
started with the receipt of a medical opinion
confirming the injury and its relationship to
the job.
....
7. This [WCJ] had previously concluded, and
the [Board] affirmed this conclusion, that
Claimant provided timely notice in the
instant dispute. Specifically, although
Claimant knew of a possibility that his cancer
may have a link to his firefighting activities
as evidenced by his acknowledgement he
changed jobs because of a fear of recurrence
or his acknowledgement that he had read an
article about the passage of Act 46,[2] it was
not until he received a copy of the report
prepared by [a doctor] dated
September 16, 2014 that he knew that there
was the causal link between his cancer and
the firefighting activity and as such
the 120[-]day notice period did not begin to
run until September 16, 2014. The [c]laim
[p]etition, which Employer contends was the
first notice it received of this claim, was filed
on November 10, 2014, well within
the 120-day notice period, but after the
applicable 21-day notice set forth in
[S]ection 311 of the Act.
Employer appealed this decision to the Board, alleging
that some of the WCJ’s factual findings were unsupported
by substantial evidence and that the WCJ made multiple
errors of law. Among Employer’s challenges, it argued
2
Act of July 7, 2011, P.L. 251.
4
that the WCJ erred in concluding that Claimant provided
sufficient notice to Employer of his cancer
within 120 days, as required by Section 311 of the Act. By
opinion and order dated July 6, 2017, the Board affirmed
the WCJ’s decision. Regarding Employer’s argument that
Claimant failed to provide timely notice, the Board
reasoned:
[Employer] also argues that the WCJ erred in
finding that Claimant provided timely notice
of his alleged cancer within 120 days as
required by Section 311 of the Act . . . . We
addressed this argument in our prior
[o]pinion in this matter. We noted that the
WCJ found that the notice period did not
begin to run until Claimant received a copy
of [a doctor’s] report on September 16, 2014,
informing him of the causal link between his
cancer and firefighting. We noted that in
occupational disease matters, it is generally
recognized that the notice period does not
begin to run until the claimant is advised by
a physician that he has an occupational
disease and that it is related to his work. We
noted Claimant’s testimony that although he
felt that there might be a connection between
his cancer and firefighting, this suspicion was
not confirmed until he received a letter from
his attorney and a report from [a doctor] in
September 2014. Before receiving this
information, he had never been informed by
any doctor that his cancer was related to his
exposures as a firefighter. [The doctor’s]
report was dated September 16, 2014, and
Claimant filed his [c]laim [p]etition on
November 7, 2014, well within the 120-day
time period proscribed [sic] by
Section 311 [of the Act]. As such, Claimant
provided timely notice of his claim.
Stahl I, 189 A.3d at 1115-17 (emphasis in original) (record citations omitted).
5
Employer appealed the Board’s decision to this Court, arguing that the Board
committed an error of law by concluding that Claimant provided adequate notice of
his cancer, because the Board failed to analyze whether Claimant exercised
reasonable diligence to discover the origins of his cancer. By opinion and order
dated June 1, 2018, we held that the Board failed to properly analyze the issue of
whether Claimant provided timely notice pursuant to Section 311 of the Act, and,
therefore, we vacated the Board’s order and remanded the matter to the Board with
instructions to remand the matter to the WCJ for the issuance of a new decision. In
so doing, we reasoned:
In its opinion, the Board noted that “the notice period does
not begin to run until the claimant is advised by a
physician that he has an occupational disease and that it is
related to his work.” In support of this assertion, the Board
cited Sell and Hausmann. Neither of these cases, however,
directly support such an assertion, and this Court has
previously stated as much. See Allegheny Ludlum Corp.
[v. Workers’ Comp. Appeal Bd. (Holmes)],
998 A.2d [1030,] 1035-36 [(Pa. Cmwlth.)] (“We do not
believe that Sell stands for the broad proposition that a
claimant may not be charged with knowledge of the
connection between an injury and the claimant’s work
until the claimant receives an expert medical opinion.”)[,
appeal denied, 13 A.3d 480 (Pa. 2010).]
In Sell, the claimant (Sell) was a smoker who
suffered from tightness in her chest, sore throat, coughing,
and a runny nose. Sell worked with formaldehyde as part
of her job, and she suspected that the chemicals she
worked with might be causing some of her symptoms.
Eventually, Sell was diagnosed and hospitalized for
emphysema. Sell never discussed the cause of her
emphysema with her treating physicians during her
hospitalization. Following her hospitalization, Sell did not
return to work, but she began looking “for a physician with
knowledge of the chemicals and dust in her work
environment,” whom she did not find until almost nine
months after she left work. That physician informed Sell
6
that she could return to work if she exercised caution with
regard to her exposure to formaldehyde, and Sell then
informed her employer of this limitation and how
formaldehyde had affected her health. Sell, 771 A.2d
at 1249. The Supreme Court held that Sell could not be
charged with knowledge of her work[-]related injury until
she received the physician’s opinion that her exposure to
formaldehyde aggravated her emphysema. Id. at 1253. In
so holding, the Supreme Court opined:
When read in its entirety, the record
establishes that at the time Sell’s emphysema
was diagnosed, she was a layperson who
thought that the formaldehyde in her work
environment was harmful. Aware that she
held an uninformed view, Sell sought out an
expert who could tell her whether she was
correct to think so. In the exercise of
reasonable diligence, and with notable
persistence, Sell located . . . a physician who
confirmed her suspicions about
formaldehyde and informed her on
August 31, 1993[,] that exposure to the
chemical exacerbated her emphysema. As
the WCJ found, it was at this point, with a
medical diagnosis in hand, that Sell had the
knowledge that [Section 311] requires.
Id. at 1254 (emphasis added). Although the Supreme
Court determined that [Sell] only had the requisite
knowledge to provide notice after receiving the
physician’s diagnosis, it was paired with the finding that
Sell proceeded with reasonable diligence in acquiring that
knowledge. Id.
Similarly, in Hausmann, the claimant had a kidney
condition that he suspected to be related to his
employment. Two years later, a physician confirmed the
claimant’s suspicions. On appeal, this Court affirmed a
WCJ’s finding that the claimant did not know his
condition was job related until receiving the physician’s
confirmation. Hausmann, 960 A.2d at 493. In so holding,
this Court opined:
7
The record in this case fully supports the
WCJ’s finding that [the c]laimant did not
know that his disease was job related until [a
physician] so advised him in March 2005.
Employer’s contention to the contrary is
based solely on [the c]laimant’s testimony
that he suspected in 2002 that his kidney
problem was related to his job. As the
Supreme Court held in Sell, however,
Section 311’s discovery rule requires more
than an employee’s suspicion, intuition or
belief.
Id. Although this Court in Hausmann did acknowledge
that the 120-day notice period begins to run when a doctor
advises a claimant of the work-relatedness of the injury,
this Court did not hold that the 120-day notice period can
only begin to run at that point. Further, the issue of
whether the claimant should have known of the
work[-]relatedness of his injury through the exercise of
reasonable diligence was not addressed.
While it is true that sufficient knowledge for the
purposes of notice requires more than an employee’s
suspicion, to hold that the 120-day notice period can only
begin once a claimant receives a physician’s confirmation
would be illogical. Such a holding would not only provide
a claimant with a potentially unlimited timeframe in which
to provide notice, but it would also serve to nullify the
reasonable diligence requirement of Section 311 of the
Act. Had the General Assembly intended to require a
physician’s confirmation to serve as the start of the notice
period, it could have included straightforward language in
the Act to that effect.
Here, Claimant testified that sometime after
July 2011, he read an article discussing Pennsylvania’s
passage of a law regarding cancer in firefighters and how
it may affect their rights under the Act. Thereafter,
Claimant sought the services of an attorney to discuss his
workers’ compensation rights and entered into a fee
agreement with counsel on August 5, 2012. Then, two
years after entering into a fee agreement, Claimant
received a medical confirmation of the correlation
between his firefighting duties and stomach cancer on or
8
about September 16, 2014. Claimant filed his claim
petition on November [10], 2014, well within 120 days of
finally receiving a physician’s confirmation. The crux of
the issue relating to notice, however, is not when did
Claimant actually know of the work[-]relatedness of his
injury, but when Claimant, through the exercise of
reasonable diligence, should have known the
work-relatedness of his injury. See [Del.] Cty. v. Workers’
Comp. Appeal Bd.[ (Baxter Coles)], 808 A.2d 965, 970
(Pa. Cmwlth. 2002), appeal denied, 825 A.2d 1262
(Pa. 2003). Claimant’s actions from July 2011 to
August 2012 could be interpreted as Claimant having
more than just a bare suspicion regarding the
work[-]relatedness of his injury, more so than that which
Sell held to be insufficient. In answering this inquiry, it
must be determined whether Claimant made a reasonable
effort to discover the cause of his injury under the facts
and circumstances present in the case. See Sell, 771 A.2d
at 1251. Both the WCJ and the Board failed to answer this
critical inquiry.
Stahl I, 189 A.3d at 1118-20 (record citations omitted).
On remand, the WCJ gave the parties the opportunity to present additional
testimony on the issue of when, through the exercise of reasonable diligence,
Claimant should have known of the work-relatedness of his stomach cancer, but the
parties declined to present any such additional testimony. By decision and order
dated November 20, 2018, the WCJ denied Claimant’s claim petition for failure to
provide timely notice pursuant to Section 311 of the Act. In so doing, the WCJ
reasoned:
[T]his [WCJ] cannot find that Claimant knew of the
work[-]relatedness of the injury when [he was] diagnosed
with cancer, although he may have believed that there was
some connection at that time. However, the facts of this
case appear clear to this [WCJ] that once Claimant read
the article in the publication The Pennsylvania Fireman
about the passage of the cancer presumption law, this was
enough for Claimant to retain a workers’ compensation
attorney as of August 5, 2012. Claimant specifically noted
9
that he had found an “expert—or a very good attorney for
cancer presumption of workers’ [compensation].”
Although Claimant may have only had a stronger
“suspicion” of the causal nexus at this point, what was
troubling to this [WCJ] is the complete absence of any
evidence between August 5, 2012[,] and April 16, 2014,
when Claimant executed an affidavit for review by [a
doctor] of any effort Claimant or anyone on behalf of
Claimant made to inquire or establish the work-relatedness
of Claimant’s cancer and his firefighting activity. To do
nothing for a period of approximately 19½ months, i.e.,
more than a year and a half, cannot be construed by this
[WCJ] as an “exercise of reasonable diligence.” This
[WCJ] also noted that[,] although Claimant has had
regular check-ups for his stomach cancer since 2006, there
is no indication in the record that he inquired of those
health care providers concerning a causal nexus between
his cancer and his firefighting activity, especially during
the period from August 5, 2012[,] and April 16, 2014.
(WCJ’s Decision, Nov. 20, 2018, at 6-7.) Claimant appealed the WCJ’s decision to
the Board, which affirmed. Claimant then petitioned this Court for review.
On appeal,3 Claimant argues that the Board committed an error of law by
affirming the WCJ’s conclusion that he failed to provide timely notice pursuant to
Section 311 of the Act. More specifically, Claimant contends that he did not know,
or have reason to know, that his stomach cancer was potentially related to his work
as a volunteer firefighter until he received a copy of his medical expert’s report in
September 2014. Claimant suggests that, because his burden of proof in a firefighter
cancer claim—i.e., to “establish that he has been diagnosed with a type of cancer
related to [an International Agency for Research on Cancer (IARC)]
Group 1 carcinogen[]”—requires uniquely technical and medically complex
3
This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§ 704.
10
evidence, there was simply no possible way that he knew or could have determined
that his cancer was covered by the Act until he obtained the report from his medical
expert. (Claimant’s Br. at 18-19 (citing City of Phila. Fire Dep’t v. Workers’ Comp.
Appeal Bd. (Sladek), 195 A.3d 197, 207-08 (Pa. 2018)).) In other words, Claimant
suggests that he “acted with the reasonable diligence required to properly provide
notice of a rare and latent disease when he contacted counsel shortly after learning
of the cancer presumption law.” (Claimant’s Br. at 20.) Claimant further contends
that the WCJ improperly went beyond this Court’s direction in Stahl I—i.e., to
consider whether Claimant acted with reasonable diligence between July 2011 and
August 2012—and penalized him for the time that it took for his attorney to gather
the necessary records and have a medical expert issue a report regarding the cause
of his stomach cancer. Claimant suggests, rather, that the focus of the WCJ’s inquiry
should have been on whether Claimant, not his attorney or medical expert, exercised
reasonable diligence, and that any inquiry into the efforts of Claimant’s attorney to
obtain a report from a medical expert would have resulted in a breach of the
attorney-client privilege.
In response, Employer argues that the Board properly determined that the
WCJ did not err by concluding that Claimant failed to exercise reasonable diligence
as required by Section 311 of the Act. More specifically, Employer contends that
Claimant is essentially seeking to relitigate the issue already decided by this Court
in Stahl I and is “conflat[ing] the acquisition of sufficient knowledge with the
separate and distinct concept that one must simultaneously exercise reasonable
diligence.” (Employer’s Br. at 8.) In that regard, Employer suggests that Claimant’s
reliance on cases such as Sell and Hausmann in support of his contention that he
could not have possessed the requisite knowledge under Section 311 of the Act until
11
September 2014 is misplaced because those cases: (1) were previously distinguished
by this Court in Stahl I; and (2) only pertain to situations in which the claimants were
found to have exercised reasonable diligence but still did not manifest the requisite
knowledge required by Section 311 of the Act until a medical professional rendered
an opinion on a work-related cause of their injuries. Employer further contends that,
“in conformity with the directive placed by this [Court] in Stahl I, the WCJ properly
relied upon substantial, competent evidence of record in determining that, based
upon the facts and circumstances present, Claimant failed to make a reasonable
effort to discover the cause of his injury.” (Employer’s Br. at 27-28.) Lastly,
Employer contends that the WCJ did not improperly construe this Court’s directive
in Stahl I and properly considered Claimant’s efforts between 2006 and 2014 when
he determined that Claimant failed to exercise reasonable diligence.
Notice of a work-related injury is a prerequisite to receiving workers’
compensation benefits, and the claimant bears the burden of showing that proper
notice was given. Gentex Corp. v. Workers’ Comp. Appeal Bd. (Morack),
23 A.3d 528, 534 (Pa. 2011). The timing of the notice is governed by Section 311 of
the Act, which provides, in part, that a claimant must provide notice within 120 days
of either the date of the injury or the date on which the claimant “knows, or by the
exercise of reasonable diligence should know, of the existence of the injury and its
possible relationship to his employment.”4 The discovery rule set forth in
4
Section 311 of the Act provides, in relevant part:
Unless the employer shall have knowledge of the occurrence of the injury,
or unless the employe or someone in his behalf . . . shall give notice thereof to the
employer within twenty-one days after the injury, no compensation shall be due
until such notice be given, and, unless such notice be given within one hundred and
twenty days after the occurrence of the injury, no compensation shall be allowed.
However, in cases of injury resulting from . . . any . . . cause in which the nature of
12
Section 311 of the Act allows “employees who suffer an injury that is not readily
and immediately ascertainable [to] have the same rights under the Act as those
employees who sustain an injury that is, as long as they proceed with reasonable
diligence.” Sell, 771 A.2d at 1251. The standard of reasonable diligence requires
“a reasonable effort to discover the cause of an injury under the facts and
circumstances present in the case.” Id. (quoting Cochran v. GAF Corp.,
666 A.2d 245, 249 (Pa. 1995)). While reasonable diligence is an objective standard,
“it is sufficiently flexible to take into account the different capacities people have to
deal with the circumstances they confront.” Id. In order to trigger the running of
the 120-day period for notice under Section 311 of the Act, a claimant must
have: (1) knowledge or constructive knowledge, (2) of a disability, (3) which
exists, (4) which results from an occupational disease or injury, and (5) which has a
possible relationship to the claimant’s employment. Allegheny Ludlum Corp.,
998 A.2d at 1034.
Here, Claimant appears to suggest that, in every firefighter cancer case, the
claimant cannot know or have reason to know that his cancer is related to his
firefighting activities until such claimant obtains a report from his medical expert
establishing the work-relatedness of his injury. We, however, already rejected this
argument in Stahl I, when we concluded that the 120-day notice requirement set
forth in Section 311 of the Act does not only begin to run once a claimant receives
a medical expert’s confirmation of the work-relatedness of his injury, but rather, it
the injury or its relationship to the employment is not known to the employe, the
time for giving notice shall not begin to run until the employe knows, or by the
exercise of reasonable diligence should know, of the existence of the injury and its
possible relationship to his employment. The term “injury” in this section means,
in cases of occupational disease, disability resulting from occupational disease.
77 P.S. § 631.
13
also begins to run when a claimant, through the exercise of reasonable diligence,
should have known of the work-relatedness of his injury. See Stahl I, 189 A.3d at
1119-20. In other words, we suggested that a determination of whether a claimant
has satisfied the notice requirement set forth in Section 311 of the Act is fact specific
and no one fact—including, but not limited to, the date on which a claimant obtains
a medical report establishing a causal relationship between his injury and his job—
is dispositive on this issue. We will not revisit this issue at this time. Additionally,
in making this argument, Claimant appears to ignore that, in Stahl I, we indicated
that the relevant inquiry is not simply whether Claimant actually knew or should
have had reason to know that his firefighting activities caused his stomach cancer,
but rather, whether Claimant could have discovered the work-relatedness of his
stomach cancer through the exercise of reasonable diligence at any point prior to
the time that he obtained the report from his medical expert. Thus, we must consider
whether there is substantial evidence of record to support the WCJ’s
finding/conclusion that Claimant failed to exercise reasonable diligence in
ascertaining a causal relationship between his stomach cancer and his firefighting
activities.5
The WCJ focused his inquiry on Claimant’s activity, or lack thereof, between
August 5, 2012, the date on which Claimant retained his attorney to represent him
in this matter, and April 16, 2014, the date on which Claimant executed an affidavit
detailing his work, medical, family, and firefighting history to send to his medical
expert. Ultimately, the WCJ concluded that Claimant failed to exercise reasonable
diligence, because the record was devoid of any evidence of what, if anything,
5
Whether a claimant provides proper notice of a work-related injury under Section 311 of
the Act is a mixed question of law and fact. Penske Logistics v. Workers’ Comp. Appeal Bd.
(Troxel), 132 A.3d 1029, 1035 n.6 (Pa. Cmwlth. 2015).
14
Claimant did from August 5, 2012, until April 16, 2014, to determine whether there
was a causal relationship between his stomach cancer and his firefighting activities
with Employer. Claimant initially suggests that the WCJ exceeded our direction in
Stahl I because he did not limit his consideration to Claimant’s actions from
July 2011, when he read the article discussing Pennsylvania’s passage of a law
regarding cancer in firefighters and how it may affect their rights under the Act, and
August 2012, when he retained his attorney. We disagree. While we may have
stated in Stahl I that “Claimant’s actions from July 2011 to August 2012 could be
interpreted as Claimant having more than just a bare suspicion regarding the
work[-]relatedness of his injury, more so than that which Sell held to be insufficient,”
we did not necessarily limit the WCJ’s consideration to Claimant’s actions during
that timeframe. Stahl I, 189 A.3d at 1120. Rather, we merely suggested that
Claimant could have had more than a mere suspicion that his stomach cancer was
related to his firefighting activities at some point between July 2011 and August
2012. We did not foreclose the possibility that Claimant could have also developed
more than a mere suspicion at some point after August 2012 but prior to
September 2014.
Additionally, on remand, the WCJ gave Claimant the opportunity to present
additional evidence to establish that he exercised reasonable diligence in attempting
to discover a relationship between his stomach cancer and his firefighting activities
with Employer. Claimant declined to present any such additional evidence and now
contends that any inquiry into his efforts to determine the cause of his stomach
cancer after he retained an attorney to represent him in this matter would result in a
breach of the attorney-client privilege. We again disagree. The attorney-client
privilege protects the disclosure of communications; it does not protect the
15
disclosure of the underlying facts. See Custom Designs & Mfg. Co. v.
Sherwin-Williams Co., 39 A.3d 372, 378 (Pa. Super.), appeal denied, 57 A.3d 71
(Pa. 2012).6 Thus, Claimant could have presented factual evidence relative to the
efforts that Claimant or his attorney undertook from August 2012 to April or
September 2014 to determine whether Claimant’s stomach cancer was related to his
firefighting activities with Employer—e.g., obtaining medical records or locating a
medical professional with the requisite expertise. As a result, the substantial
evidence of record, or more accurately the lack thereof, supports the WCJ’s
finding/conclusion that Claimant failed to exercise reasonable diligence in
ascertaining a causal relationship between his stomach cancer and his firefighting
activities. For these reasons, we cannot conclude that the Board committed an error
of law by affirming the WCJ’s conclusion that he failed to provide timely notice
pursuant to Section 311 of the Act.7
Accordingly, we affirm the Board’s order.
P. KEVIN BROBSON, Judge
6
While we recognize that Pennsylvania Superior Court cases are not binding on this Court,
such cases “offer persuasive precedent where they address analogous issues.” Lerch v.
Unemployment Comp. Bd. of Review, 180 A.3d 545, 550 (Pa. Cmwlth. 2018).
7
We note that Claimant could have possessed the requisite knowledge required by
Section 311 of the Act as early as July 2011. We do not, however, need to consider this issue on
appeal, because the WCJ based his finding/conclusion that Claimant failed to exercise reasonable
diligence on Claimant’s actions between August 5, 2012, and April 16, 2014, and Employer has
not suggested that the WCJ erred by not concluding that Claimant failed to exercise reasonable
diligence as early as July 2011, arguably because any such conclusion would not change the
ultimate result in this case—i.e., that Claimant failed to provide timely notice under Section 311 of
the Act.
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kenneth Stahl, :
Petitioner :
:
v. : No. 1575 C.D. 2019
:
Workers’ Compensation Appeal :
Board (East Hempfield Township), :
Respondent :
ORDER
AND NOW, this 14th day of August, 2020, the order of the Workers’
Compensation Appeal Board is AFFIRMED.
P. KEVIN BROBSON, Judge