IN THE COMMONWEALTH COURT OF PENNSYLVANIA

City of Johnstown, :

Petitioner :

:

 v. : No. 1156 C.D. 2019

: Submitted: January 10, 2020

Workers' Compensation Appeal :

Board (Sevanick), :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE MICHAEL WOJCIK, Judge

HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE CROMPTON FILED: May 6, 2020

This appeal involves a firefighter cancer claim under Section 108(r) of 

the Workers’ Compensation Act (Act),1 which added cancer to the list of 

occupational diseases for firefighters in July 2011, as a result of the passage of what 

is commonly known as “Act 46.”

2

 Specifically, the City of Johnstown (Employer) 

petitions for review of an order of the Workers’ Compensation Appeal Board 

(Board) affirming the decision and order of a Workers’ Compensation Judge (WCJ) 

granting the claim petition (Petition) filed by retired firefighter Michael Sevanick 

 

1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4; 2501-2710. Section 

108(r) recognizes “[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,” as a compensable occupational disease under the Act. 77 P.S. §27.1(r).

2 Act of July 7, 2011, P.L. 251. 
2

(Claimant). Employer contends that the Board erred because (1) Claimant failed to 

meet his burden of proof that he was exposed to an International Agency for 

Research on Cancer (IARC) Group 1 carcinogen, within 600 weeks of filing his 

claim, that could have caused his kidney cancer, and (2) the WCJ’s calculation of 

Claimant’s benefits was incorrect. Upon review, we affirm.

I. Background

On January 8, 2016, Claimant filed his Petition seeking benefits for 

kidney cancer alleged to have been caused by his exposure to IARC Group 1 

carcinogens during his employment as a firefighter. 

Claimant testified that he joined Employer’s fire department on June 1, 

1977, at which time he underwent a physical examination. He was not treated for 

any form of cancer during his 20-plus-year firefighting career with Employer. He 

was a firefighter until 1997 and held the rank of captain from 1997 until 2005. He 

then served as acting assistant chief, and then assistant chief, until his retirement. 

He worked in five different fire stations throughout his career and was located at 

headquarters for approximately two years immediately prior to his retirement on 

September 10, 2006.

Claimant testified that he smelled diesel fuel during every shift he 

worked in a firehouse. As to firefighting, Claimant estimated that he fought at least 

1,200 to 1,400 fires which involved smoke in varying severity. He was engaged in 

both interior and exterior firefighting, although the vast majority of his experience 

was in interior firefighting. While he used various self-contained breathing 
3

apparatuses during his career, he did not wear such an apparatus when fighting 

exterior fires. He testified that during his first 10 years of using a self-contained 

breathing apparatus, such usage was “on demand,” meaning the mask was not 

pressurized, and a gap in the mask allowed smoke to enter. Reproduced Record 

(R.R.) at 27a-28a. Later in his career, the apparatus was upgraded to positive 

pressure. He wore the mask during the initial phase of interior firefighting but rarely 

during overhaul, which is the phase in which firefighters ensure all the hotspots are 

addressed.

Claimant testified that he would smell smoke on himself, even after 

taking a shower, and that he would blow black soot out of his nose for several days 

after fighting a fire. R.R. at 34a. When he was an assistant chief, he was frequently

exposed to some level of smoke while investigating a fire’s origin. He responded to 

fires until the end of his career, and he was exposed to smoke and diesel exhaust 

through the summer of 2006. R.R. at 37a. 

Claimant was a smoker between 1964 and 1994, when he quit. He 

smoked no more than one pack of cigarettes per day, although at times, he would

reduce his smoking to a half pack per day or attempt to quit altogether. R.R. at 40a. 

He noted smoking was permitted in the fire station until the late 1990s. He further 

testified that his parents had no history of cancer but that his oldest brother was 

diagnosed with prostate cancer at age 68 or 69. R.R. at 39a-40a.

Claimant was diagnosed with kidney cancer in 2015 and underwent 

surgery for it. He received no radiation, chemotherapy, or medication. However, 
4

he received a CT scan six months after surgery and was told to get annual, followup CT scans for the next five years. R.R. at 38a. He was never informed by a 

physician that there was a relationship between his fire service and his cancer until 

he reviewed a January 7, 2016 report from Tee L. Guidotti, M.D., who is board 

certified in internal, pulmonary, and occupational medicine.

In support of his Petition, Claimant submitted Dr. Guidotti’s report and

deposition testimony. Dr. Guidotti confirmed that he reviewed Claimant’s medical 

records. He opined that, within a reasonable degree of medical certainty, Claimant’s 

kidney cancer is clearly a type of cancer that can be caused by IARC Group 1 

carcinogens and that Claimant’s exposure to many IARC Group 1 carcinogens 

during his career as a firefighter was a substantial contributing factor in the 

development of his cancer. R.R. at 71a; R.R. at 96a. In his report, Dr. Guidotti 

wrote: “My understanding is that the issue on which my opinion is requested is 

whether [Claimant’s] exposure to carcinogens as a firefighter was a substantial 

contributing factor in his risk for renal cell cancer. My answer is clearly yes.” R.R. 

at 71a. Further, Dr. Guidotti opined, in pertinent part:

2. Was [Claimant’s] exposure to IARC Group 1 

carcinogens a substantial contributing factor in the development 

of his cancer?

Yes, within reasonable medical certainty. That he was exposed 

to many IARC Group 1 carcinogens during his career as a 

firefighter is without question. Firefighting is associated with an 

elevated risk of kidney cancer, of a magnitude above other risk 

factors. The cholorinated aliphatic hydrocarbons, in particular, 

are potent kidney carcinogens. This certainly qualifies as 

“substantial.” Exposure to these renal carcinogens increased his 

risk of kidney cancer from all causes and were sufficient cause 

in themselves.
5

3. Is renal carcinoma a type of cancer that can be caused 

by IARC Group 1 carcinogens found in the work environment?

Yes, clearly.

Id. Dr. Guidotti added that chlorinated aliphatic hydrocarbons, found in 

trichloroethylene (a Group 1 carcinogen) and tetrachloroethylene (a Group 2 

carcinogen), are potent kidney carcinogens present in the smoke from burning 

materials. 

Dr. Guidotti acknowledged that it is impossible to pinpoint a fire call 

or a last date upon which Claimant was exposed to an amount of any carcinogen that 

contributed to his cancer. R.R. at 120a. However, he added that thinking in terms 

of a particular event is misleading because a carcinogen interacts with a number of 

cells the same way at the same time, but the human immune system keeps some

affected cells from becoming cancerous. He added that the conclusion of a 

demonstrable risk of cancer among firefighters is not dependent on a particular 

carcinogen, such as trichloroethylene, but trichloroethylene stands out because it is 

present at fires and its effects are known.

Dr. Guidotti acknowledged that Claimant was a smoker, but he did not 

consider Claimant a heavy smoker. He also noted Claimant quit smoking in 1994. In 

addition, Dr. Guidotti testified that the association between cigarette smoking and 

kidney cancer exists, but is not strong, and that it is considerably less than the 

association emerging between firefighting and kidney cancer in relevant studies. R.R. 

at 37a-38a; R.R. at 701a (See WCJ Decision and Order, 12/27/17, Finding of Fact (F.F.) 

No. 6).
6

In response to Claimant’s evidence, Employer did not present a medical 

witness of its own; rather it submitted the IARC Monograph 98 with respect to 

firefighting and the IARC Monograph 1063 with respect to trichloroethylene.

4

The WCJ credited Claimant’s testimony based on his demeanor during 

live testimony and because his testimony was internally consistent and unrebutted. 

F.F. No. 12. The WCJ also found Dr. Guidotti’s testimony competent and credible, 

in significant part because it was internally consistent and sufficiently supported by 

the relevant literature. F.F. No. 13. Based on these credibility determinations, the 

WCJ found Claimant: underwent pre-diagnosis physical examinations which did 

not show cancer prior to March 2015; had more than four years of continuous fire 

service with direct exposure to IARC Group 1 carcinogens and that his exposure to 

IARC Group 1 carcinogens was a substantial contributing factor in the development 

of his kidney cancer; provided timely and sufficient notice of his injury via the claim 

Petition he filed in January 2016; was totally disabled due to his work-related kidney 

 

3 According to the National Center for Biotechnology Information of the United States 

National Library of Medicine, “[t]he IARC Monographs identify environmental factors that can 

increase the risk of human cancer. These include chemicals, complex mixtures, occupational 

exposures, physical agents, biological agents, and lifestyle factors. National health agencies can 

use this information as scientific support for their actions to prevent exposure to potential 

carcinogens.” See https://www.ncbi.nlm.nih.gov/books/NBK294452/ (last visited on May 5, 

2020).

4 Employer also presented two articles: Grace LeMasters, Ph.D., Cancer Risk Among

Firefighters: A Review and Meta-analysis of 32 studies (November 2006), and Eero Pukkala, 

Cancer Incidence Among Firefighters: 45 Years of Follow-up in Five Nordic Countries (February 

2014).
7

cancer from March 27, 2015, through and including May 21, 2015; and returned to 

work in a part-time position with the Thomas Honda car dealership on May 22, 2015. 

F.F. No. 14. Employer appealed to the Board.

On appeal to the Board, Employer argued that the 300-week provision 

of Section 301(c)(2) of the Act, 77 P.S. §411.2,

5 extinguished Claimant’s claim in 

the present matter. In affirming the WCJ, the Board determined that the 300-week 

provision did not govern. It observed that, although Claimant’s last date of work, 

exposure, and retirement occurred prior to July 2011 (the effective date of Act 46), 

the credible evidence established Claimant was not diagnosed with, treated for, or 

disabled by his cancer until 2015. The Board opined that where, as here, Claimant’s 

disease occurred after the effective date of Act 46, he had 600 weeks to bring his 

claim as provided in Section 301(f) of the Act, 77 P.S. §414. See Bd. Op., 7/30/19, 

at 15-16.

The Board also rejected Employer’s assertion that the Petition should 

have been dismissed because Claimant failed to prove he made his claim within 600 

weeks of the last date of exposure to Group 1 carcinogen trichloroethylene and that 

Dr. Guidotti did not establish Claimant’s occupational exposures caused his cancer. 

As to this latter point, Employer contended that Dr. Guidotti’s opinion was 

insufficient because he opined that Claimant’s exposures were only a substantial 

contributing factor to Claimant’s cancer, rather than the cause of the cancer at a 

specific point in time. See Bd. Op. at 16-20.

 

5 Section 301 of the Act, 77 P.S. §411.2, was added to the Act by Section 9 of the Act of 

December 5, 1974, P.L. 782.
8

In addition, Employer challenged the WCJ’s calculation of indemnity 

benefits based on Claimant’s average weekly wage (AWW) as of September 10, 

2006, rather than his AWW as of his date of disability in 2015, when he was working 

as a part-time driver for Thomas Honda. The Board rejected Employer’s contention, 

noting that the rate of compensation in an occupational disease case is based on the 

date of injury, which must be the date of last exposure. In the present case, 

Claimant’s date of last exposure occurred in 2006. See Bd. Op. at 20. Employer 

petitions this Court for review of the Board’s order.

6

II. Discussion

On appeal, Employer presents two primary issues for our review. First, 

Employer contends that Claimant failed to prove he was exposed to an IARC Group 

1 carcinogen that could have possibly caused his kidney cancer within 600 weeks of 

the date he made his claim. Second, Employer asserts that, to the extent Claimant is 

entitled to disability benefits, the Board erred in affirming the WCJ’s calculation of 

same. 

A. Applicable Law

Our Supreme Court has held that, under Act 46, a claimant must 

initially establish he has an occupational disease as defined by Section 108(r) and 

must produce evidence that it is possible that the carcinogen in question causes the 

type of cancer he has. City of Phila. Fire Dep’t v. Workers’ Comp. Appeal Bd.

(Sladek), 195 A.3d 197 (Pa. 2018). However, the Court noted that Section 108(r) 

 

6 Our review is limited to determining whether the WCJ’s findings of fact were supported 

by substantial evidence, whether an error of law was committed or whether constitutional rights 

were violated. Phoenixville Hosp. v. Workers’ Comp. Appeal Bd. (Shoap), 81 A.3d 830 (Pa. 2013).
9

does not require the claimant to prove that the identified Group 1 carcinogen actually 

caused the cancer. The Sladek court stated: 

Section 108(r) embodies a legislative acknowledgement that 

firefighting is a dangerous occupation that routinely exposes 

firefighters to Group 1 carcinogens that are known to cause 

various types of cancers. The “general causation” requirement 

under Section 108(r) constitutes a recognition that different types 

of cancers have different etiologies and it weeds out claims for 

compensation for cancers with no known link to Group 1 

carcinogens. The burden imposed by Section 108(r) is not a 

heavy burden. In this regard, epidemiological evidence is 

clearly relevant and useful in demonstrating general causation 

....While epidemiological evidence supports the burden of 

establishing general causation, where the claimant has 

established an entitlement to the evidentiary presumption of 

compensability under Section 301(f), such epidemiological 

evidence is not sufficient to rebut the presumption. As the 

language of Section 301(f) plainly provides, the evidence 

required to rebut this presumption must show that “the 

firefighter's cancer was not caused by the occupation of 

firefighting. 

Id. at 208-209 (emphasis added). 

Section 301(c) of the Act pertinently provides:

(1)The terms “injury” and “personal injury,” as used in this act, shall 

be construed to mean an injury to an employe, regardless of his 

previous physical condition, except as provided under subsection 

(f), arising in the course of his employment and related thereto, 

and such disease or infection as naturally results from the injury 

.... 

(2) The terms “injury,” “personal injury,” and “injury arising in the 

course of his employment,” as used in this act, shall 

include...occupational disease as defined in section 108 of this 

act. Provided, That whenever occupational disease is the basis 

for compensation, for disability or death under this act, it shall 
10

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.... The employer liable for 

compensation provided by...section 108, subsections (k), (l), 

(m), (o), (p), (q) or (r), shall be the employer in whose 

employment the employe was last exposed for a period of not 

less than one year to the hazard of the occupational disease 

claimed....

77 P.S. §411 (emphasis added).

As it is relevant here, we note again that Section 108(r) includes: 

“[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 [IARC].” 77 P.S. §27.1(r).

Section 301(f) of the Act applies specifically to claims for 

compensation for cancer suffered by a firefighter and caused by direct exposure to 

certain carcinogens while performing firefighter duties. It provides:

Compensation pursuant to cancer suffered by a firefighter shall 

only be to those firefighters who have served four or more years 

in continuous firefighting duties, who can establish direct 

exposure to a carcinogen referred to in section 108(r) relating to 

cancer by a firefighter and have successfully passed a physical 

examination prior to asserting a claim under this subsection or 

prior to engaging in firefighting duties and the examination failed 

to reveal any evidence of the condition of cancer. The 

presumption of this subsection may be rebutted by substantial 

competent evidence that shows that the firefighter’s cancer was 

not caused by the occupation of firefighting.... 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 
11

hundred weeks after the last date of employment in an 

occupation or industry to which a claimant was exposed to the 

hazards of the 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).

This Court has held that a claimant needs to satisfy the 300-week 

requirement of Section 301(c)(2) of the Act for occupational diseases occurring 

before the effective date of Act 46, whereas Section 301(f) of the Act applies where 

a claimant’s disease occurs after the effective date of Act 46 (July 7, 2011). Caffey 

v. Workers’ Comp. Appeal Bd. (City of Phila.), 185 A.3d 437 (Pa. Cmwlth. 2018);

City of Warren v. Workers’ Comp. Appeal Bd. (Haines), 156 A.3d 371 (Pa. 

Cmwlth.), appeal denied, 170 A.3d 1039 (Pa. 2017).

Act 46 defined a distinct limitations period in Section 301(f), mandating

that an occupational disease claim under Section 108(r) be filed within 600 weeks 

of the last date of workplace exposure to a Group 1 carcinogen. Fargo v. Workers’ 

Comp. Appeal Bd. (City of Phila.), 148 A.3d 514 (Pa. Cmwlth. 2016). In Fargo, we 

noted the key difference between the limitations periods in Section 301(c)(2) and 

301(f) is not the date upon which the periods start, but rather what must take place 

before the periods end. Under Section 301(c)(2), disability or death from the disease 

must occur within 300 weeks, whereas under Section 301(f), the claimant must file 

the claim within 600 weeks of the last date of workplace exposure to a Group 1 

carcinogen. Id. at 520. Notwithstanding the 300-week limitation of Section 

301(c)(2), Section 301(f) provides a two-tiered limitation period for Section 108(r) 

occupational disease claims. First, to qualify for the presumption, a claimant must 
12

file the claim within 300 weeks of the last date of work with exposure to a known 

Group 1 carcinogen. If a claimant fails to bring a claim within the 300-week period, 

the claimant loses the statutory presumption addressed in Section 301(e)7 and 301(f). 

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. Id.

As to Claimant’s AWW, a claimant is entitled to benefits based on his 

wages at the time of his last exposure. See Fisk v. Workmen’s Comp. Appeal Bd. 

(Gen. Elec.), 633 A.2d 1305 (Pa. Cmwlth. 1993). Relying on the Board’s regulations 

(34 Pa. Code §121.14) in occupational disease cases, we explained the following:

Although we acknowledge that determining the date of 

injury can be somewhat problematic in occupational disease 

cases, we note that the Board’s regulations provide guidance in 

calculating an employee’s weekly wage. Pursuant to 34 Pa. Code 

§121, “[t]he weekly wage [in occupational disease cases] will be 

determined in accordance with section 309 of the act (77 P.S. 

§582), and will be subject to the maximum rate in effect at the 

date of last exposure.”

. . . .

We note that if we were to accept...that benefits are to be 

awarded based on the rate of compensation in effect on the date 

that employee’s disability manifests itself into a loss of earning 

power, an illogical and unjust result would occur for those 

employees who are unemployed or retired as of the manifestation 

 

7 Section 301(e) of the Act 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 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

(emphasis added).
13

date and thus have no earnings upon which to base an award. We 

therefore, conclude that for the purpose of calculating benefits in 

occupational disease cases under the Act, the date of injury must 

be the date of last exposure. 

Id. at 1307.

 B. Analysis

 1. Timeliness of Petition and Claimant’s Burden of Proof

Employer first contends that the Board erred in affirming the WCJ 

where Claimant failed to meet his burden of proving he was exposed to an IARC 

Group 1 carcinogen that could have possibly caused his kidney cancer within 600 

weeks of the date he filed his claim. Employer concedes Claimant developed kidney 

cancer and that he worked as one of its firefighters for more than four years. 

However, Employer asserts that Claimant did not prove his kidney cancer was 

caused by occupational exposure to an IARC Group 1 carcinogen within 600 weeks 

from the filing of his claim petition, and thus, the Petition was untimely. 

Based on Claimant’s credited testimony, he was last at a fire scene in 

the summer of 2006. He did not file his claim until January 8, 2016. This was

approximately 490 weeks later (presuming a date of August 1, 2006). Employer 

maintains that Claimant did not demonstrate he was exposed to a qualifying

carcinogen as of that time (i.e., the date upon which he was last at a fire scene in the 

summer of 2006). Employer asserts that Claimant was required to present evidence 

he was last exposed to an IARC Group 1 carcinogen that could have possibly caused 

kidney cancer within 600 weeks of filing his claim. Employer maintains that the 

WCJfound that “trichloroethylene would not be detected at every fire” and that there 

was “no way to pinpoint a fire call or last date that Claimant was exposed to an 
14

amount of any carcinogen that contributed to his cancer.” Petitioner’s Brief at 18 

(citing R.R. at 703a). Employer asserts that the WCJ’s determination is clear 

reversible error because no date of last exposure was established for any Group 1 

carcinogen, and the WCJ merely presumed Claimant’s exposure. We disagree.

As the Board noted, and we agree, “Employer’s interpretation is not in 

accord with Sladek and imposes an almost impossible burden. Employer does not 

proffer an explanation as to how a typical firefighter would be able to pinpoint the

exact moment of exposure to a particular Group 1 carcinogen.” See Bd. Op. at 17. 

And, as the Supreme Court stated in Sladek, “the burden imposed by Section 108(r) 

is not a heavy one.” Sladek, 195 A.3d 197 at 208. Relying on Cable v. Workmen’s

Compensation Appeal Board (Gulf Oil/Chevron USA, Inc.), 664 A.2d 1349 (Pa. 

1995), Employer further asserts that the 600-week filing limitation at issue in the 

present matter is measured from the last date of exposure to the hazard alleged to 

have caused the disease, not from the last date of employment. However, in Fargo, 

we stated that “[t]he ‘triggering event’ for the purposes of Section 301(f) of the Act 

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.” Fargo, 148 A.3d 514

at 521. In the present matter, Claimant’s last workplace exposure would have 

occurred in approximately August 2006, well within the 600 weeks prior to the filing 

of his Petition.

8

 

8 This was over 100 weeks (i.e., nearly two years) before the deadline for filing his Petition 

and at a point in his career when he had already been exposed to a significant amount of Group 1 

carcinogens at 1,200 to 1,400 fires.
15

Employer further contends that Claimant’s Petition should have been 

denied because he was not disabled within 300 weeks of his last date of exposure to 

the hazard, per Section 301(c)(2) of the Act. In this regard, Employer relies on the

unreported case of Szymanski v. Workers’ Compensation Appeal Board (City of 

Philadelphia) (Pa. Cmwlth., No. 494 C.D. 2016, filed February 14, 2017). However, 

Employer’s reliance on Szymanski is wanting.

In Szymanksi, this Court held that the discovery rule does not extend 

the time limitations of the Act and provided that the claimant in the case was not 

entitled to the presumption that his workplace exposure to Group 1 carcinogens 

caused his cancer, since he filed his claim more than 300 weeks after his last 

exposure. In addition, the WCJ in Szymanski found the employer’s expert on 

causation to be more credible than that of the claimant’s, such that the claimant did 

not meet his burden on the claim petition. This is not the situation before us here. 

Further, Section 301(c)(2) of the Act applies only when the occupational disease 

manifests itself before the effective date of Act 46 in July 2011. See Caffey; Haines. 

In the present matter, Claimant filed his Petition in January 2016 for an occupational 

disease that occurred in 2015.

In sum, Claimant here did not need to bring his claim within the 300-

week period of Section 301(c)(2), where he filed within 600 weeks of his last date

of exposure to the hazard alleged to have caused his kidney cancer. There is no 

dispute that by filing within 600 weeks, rather than within 300 weeks, Claimant was 

not entitled to the statutory presumption referenced in Section 301(f) and Section 

301(e) of the Act. Notwithstanding that he did not qualify for the presumption,
16

Claimant’s Petition was still timely and was substantiated sufficiently by his and Dr. 

Guidotti’s credited testimony, testimony which met the standard addressed in 

Sladek. Thus, the Board did not err in affirming the WCJ’s decision that Claimant 

met his burden of proof on the claim.

 

 2. AWW

Employer also asserts that the WCJ failed to properly identify the date 

of injury for calculating Claimant’s AWW. Employer contends that the correct 

AWW used to calculate Claimant’s disability benefits rate (if any) should be 

determined based on Claimant’s earnings when he was employed part-time, in 2015,

at Thomas Honda. Employer asserts that the Act is not intended to make claimants 

financially more well off than they were prior to the onset of the occupational disease 

and that the AWW should be calculated as of the date of disability. Citing Triangle 

Building Center v. Workers’ Compensation Appeal Board (Linch), 746 A.2d 1108 

(Pa. 2000), Employer argues that the calculation of the AWW under Section 309 of 

the Act9is to ensure that wages accurately reflect what the injured worker would 

have earned if not for the injury.

Here, Claimant’s diagnosis and loss of earnings occurred almost nine 

years after his retirement from Employer. When Claimant lost earnings for the eight 

weeks following his cancer surgery, he was employed by Thomas Honda. Thus, 

Employer contends the AWW that would most accurately reflect Claimant’s 

 

9 Section 309 of the Act, 77 P.S. §582, addresses the various methods for calculating a 

claimant’s AWW. 34 Pa. Code §121.14 states that, in occupational disease cases, the weekly wage 

will be determined in accordance with Section 309 of the Act, and “a claimant’s compensation rate 

shall be subject to the maximum compensation payable rate in effect at the date of last exposure.”
17

disability (i.e., wage loss) would be based on his earnings at Thomas Honda. 

Employer criticizes Claimant’s reliance on Fisk, noting that the Court and the Board 

in that case relied upon Section 309 of the Act and Board regulations at 34 Pa. Code

§121.14 to determine that the rate of compensation in an occupational disease case 

is fixed by the date of last occupational exposure to the hazard. Employer agrees the 

rate of compensation is fixed in the year during which a claimant is last exposed. 

However, Employer asserts that Fisk does not provide precedential authority 

regarding the calculation of AWW in an occupational disease case, despite setting 

the rules regarding the rate of compensation.

Employer acknowledges that an occupational disease does not become 

compensable until and unless it manifests itself into a loss of earning power and that 

occupational disease can be the basis for an “injury” pursuant to the Act. Employer 

posits that to calculate the AWW here “the wages used are those occurring in the 52-

week period prior to the disease becoming compensable as an injury” (Petitioner’s 

Brief at 24), and the date of injury is the date of loss of earning power from the 

occupational disease for calculating AWW only. Employer suggests that calculation 

of the AWW is based on the date of disability (in 2015) but that the limitation on 

Claimant’s maximum compensation rate is the date of last exposure (in 2006).10 We 

disagree.

 

10 Employer argues that the W-2 records show Claimant earned $3,816.22 in 2015, down 

from $4,353.66 in 2014, and that Claimant’s AWW, based on the higher earnings in 2014, would 

be approximately $83.00 per week, resulting in a compensation rate of $75.00 per week for 

disability benefits. However, the WCJ awarded disability benefits based on Claimant’s AWW 

beginning on September 10, 2006, looking back 52 weeks. The resulting AWW was $821.85 with 

a compensation rate of $547.90. Thus, Employer maintains that Claimant was awarded $4,383.20 

for the eight-week disability period, when his actual wage loss was only approximately $650.00. 
18

Employer’s argument strains credulity, as it disregards Fisk and 

attempts to create a distinction in the current context where none exists. In this 

regard, we reiterate our pronouncement in Fisk that:

[t]he weekly wage [in occupational disease cases] will be 

determined in accordance with section 309 of the act (77 P.S. 

§582), and will be subject to the maximum rate in effect at the 

date of last exposure.

We note that if we were to accept...that benefits are to be 

awarded based on the rate of compensation in effect on the date 

that employee’s disability manifests itself into a loss of earning 

power, an illogical and unjust result would occur for those 

employees who are unemployed or retired as of the manifestation 

date and thus have no earnings upon which to base an award. We 

therefore, conclude that for the purpose of calculating benefits in 

occupational disease cases under the Act, the date of injury must 

be the date of last exposure. 

Id. at 1307 (emphasis added).

Employer further asserts that the intent of the General Assembly was to 

ensure that claimants are compensated for otherwise lost wages and that, 

accordingly, Claimant should have been compensated based on his actual wage loss 

in 2015. Employer contends that the General Assembly intended that “the baseline 

figure from which benefits are calculated should reasonably reflect the economic 

reality of a claimant’s recent pre-injury earning experience, with some benefit of the 

doubt to be afforded to the claimant in the assessment.” Linch, 746 A.2d at 1112. 

Although Linch may reflect the General Assembly’s intent to account 

for a claimant’s “economic reality,” Fisk governs here. Fisk leaves no uncertainty 

that the rate of compensation in an occupational disease case is fixed in the year 
19

during which the claimant is last exposed and that the AWW is subject to the 

maximum rate in effect at the date of the claimant’s last exposure. In the present 

matter, that was 2006. Thus, the WCJ committed no error when he calculated 

Claimant’s AWW based on his wages as a firefighter for Employer in 2006, and the 

Board did not err when it affirmed the same.

III. Conclusion

Claimant timely filed his Petition, and it was supported by the 

substantial, competent evidence of record. The WCJ and the Board correctly applied 

the standards set out in the Act and in the pertinent case law. Discerning no error 

below, we affirm the Board’s order.

____________________________

J. ANDREW CROMPTON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

City of Johnstown, :

Petitioner :

:

 v. : No. 1156 C.D. 2019

:

Workers' Compensation Appeal :

Board (Sevanick), :

Respondent :

O R D E R 

AND NOW, this 6th day of May 2020, the order of the Workers’ 

Compensation Appeal Board is AFFIRMED.

________________________________

J. ANDREW CROMPTON, Judge