The claimant failed to provide adequate notice that his stomach cancer was caused by his firefighting duties under § 311 of the Act and, therefore, his claim petition was properly dismissed.
The claimant began working as a volunteer firefighter for the employer in 2002. He was diagnosed with stomach cancer in 2006. Six weeks following treatment, he returned to work and later retired in October 2008. In November of 2014, he filed a claim petition in which he alleged his stomach cancer was caused by his exposure to carcinogens while he worked as a firefighter.
In connection with the petition, he testified that as early as 2006 or 2007, he suspected a connection between his duties and his stomach cancer. He also said that in July of 2011 he read an article about Pennsylvania’s passage of a law regarding cancer in firefighters and how it may affect their rights under the Act. He again suspected a connection after reading this article. He hired an attorney on August 5, 2012, and on September 16, 2014, a doctor confirmed the relationship between his cancer and service as a firefighter.
The Workers’ Compensation Judge granted the claim petition, which the employer appealed to the Appeal Board. The Board found that the judge applied an inapplicable presumption and remanded the matter to the judge, who again granted the claim petition, holding that the claimant’s obligation to provide notice started with the receipt of a medical opinion confirming the injury and its relationship to the job. The employer appealed to the Board, arguing that the judge erred in concluding that the claimant provided timely notice under § 311 of the Act. The Board affirmed, noting 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 it is related to his work. The employer appealed to the Commonwealth Court, which held the Board failed to properly analyze the issue of whether the claimant provided timely notice under § 311 and remanded the case back to the judge.
On remand, the judge gave the parties the opportunity to present additional testimony on the issue of whether, through the exercise of reasonable diligence, the claimant should have known of the work-relatedness of his stomach cancer, but this was declined. This time, the judge denied the claim petition on the basis of lack of notice, finding that after the claimant read the article about the cancer presumption law and retained a workers’ compensation attorney in August of 2012, he failed to receive medical confirmation of his stomach cancer being caused by his firefighting duties until September of 2014 and failed to file his claim petition until November of 2014. The claimant appealed, and the Board affirmed.
The Commonwealth Court affirmed as well. In doing so, they rejected the claimant’s argument that he provided timely notice under § 311 of the Act as he did not know or have reason to know that his cancer was potentially related to his work as a volunteer firefighter until receiving a copy of his medical expert’s report in September of 2014. According to the court, the claimant failed to exercise reasonable diligence as required by § 311. The court noted that the claimant did nothing between August of 2012 and April of 2014 to determine whether there was a connection between his stomach cancer and his firefighting activities. Moreover, on remand, the claimant declined to present any additional evidence to the judge regarding efforts to determine the cause of his cancer.
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