IN THE COMMONWEALTH COURT OF PENNSYLVANIA

East Hempfield Township, :

Petitioner :

:

v. : No. 1058 C.D. 2017

: Submitted: December 22, 2017

Workers’ Compensation Appeal :

Board (Stahl), :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE BROBSON FILED: June 1, 2018

East Hempfield Township (Employer) petitions for review of an order 

of the Workers’ Compensation Appeal Board (Board), which affirmed a decision of 

the Workers’ Compensation Judge (WCJ), thus granting Kenneth Stahl’s (Claimant) 

claim petition for benefits under the Workers’ Compensation Act (Act).

1

 For the 

reasons discussed below, we vacate and remand.

Claimant began working as a volunteer firefighter for 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 

 

1Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
2

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. (Reproduced Record (R.R.) at 1a-5a.) In so 

doing, Claimant sought payment of medical bills and full disability benefits from 

April 1 to June 1, 2006. (Id.) 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. (Id. at 175a-84a.) 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.” (Id. at 203a.) Claimant 

testified that, as early as 2006 or 2007, he suspected there might be a connection 

between his firefighting duties and his stomach cancer. (Id. at 241a.) 

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. (Id. at 226a.) After reading this article, 

Claimant again suspected a connection between his service as a firefighter and his 

cancer diagnosis. (Id.) 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. (Id. at 251a.) 
3

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. (Id. at 194a.) This was the first time Claimant 

received any indication from a doctor that his service as a firefighter caused his 

cancer. (Id.) Thereafter, Claimant filed his claim petition. (Id. at 1a.)

By decision and order dated August 31, 2015, the WCJ granted 

Claimant’s claim petition. (Id. at 58a.) 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. (Id. at 64a.)

On remand, the WCJ again granted Claimant’s claim petition. 

(Id. at 74a.) 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], 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[, 77 P.S. § 631]. 

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 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’ 
4

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, 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 Claim Petition, 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. 

(Id. at 80a-81a (emphasis added) (internal citations omitted).)

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. (Id. at 85a-86a.) Among Employer’s challenges, it

argued 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. 

(Id. at 90a.) 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, 77 P.S. § 631. We addressed this argument in our 
5

prior Opinion 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 Claim Petition on November 7, 2014, well within 

the 120-day time period proscribed [sic] by Section 311. 

As such, Claimant provided timely notice of his claim. 

(Id. at 99a-100a (emphasis added) (internal citations omitted).) 

Employer then filed the instant appeal. On appeal,2 Employer argues 

that the Board erred in concluding that Claimant provided adequate notice of his 

cancer. Specifically, Employer argues that the Board erred by failing to analyze 

whether Claimant exercised reasonable diligence to discover the origins of his 

cancer. 

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

 

2 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.
6

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 at 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.”3 The discovery rule under Section 311 

allows that “employees who suffer an injury that is not readily and immediately 

ascertainable have the same rights under the Act as those employees who sustain an 

injury . . . 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)) (internal quotations 

omitted). 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, 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 

 

3 Section 311 of the Act, relating to providing notice of injury to an employer, provides:

Unless the employer shall have knowledge of the occurrence of the injury, or unless 

the employe or someone in his behalf, or some of the dependents or someone in 

their 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 ionizing radiation or any other cause in which the nature of 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.
7

employment. Allegheny Ludlum Corp. v. Workers’ Comp. Appeal Bd. (Holmes), 

998 A.2d 1030, 1034 (Pa. Cmwlth.), appeal denied, 13 A.3d 480 (Pa. 2010).

Here, the Board failed to properly analyze the issue of whether 

Claimant provided timely notice pursuant to Section 311 of the Act. 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.” (R.R. at 100a.) In support of this assertion, the Board cited Sell and 

Hausmann. (Id.) Neither of these cases, however, directly support such an assertion, 

and this Court has previously stated as much. See Allegheny Ludlum 

Corp., 998 A.2d at 1035-36 (“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.”).

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 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 
8

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 § [311] requires.

Id. at 1254 (emphasis added). Although the Supreme Court determined that the 

claimant in 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:

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.
9

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. (R.R. at 226a.) 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. 

(Id. at 251a.) 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 about September 16, 2014. (R.R. at 193a-94a, 269a-70a.) 

Claimant filed his claim petition on November 4, 2014, well within 120 days of 

finally receiving a physician’s confirmation. (Id. at 1a.) The crux of the issue
10

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 

Delaware Cty. v. Workers’ Comp. Appeal Bd., 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. 

Accordingly, we vacate the Board’s order and remand the matter to the 

Board with instructions that the Board remand the matter to the WCJ for the WCJ to 

issue a new decision.

P. KEVIN BROBSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

East Hempfield Township, :

Petitioner :

:

v. : No. 1058 C.D. 2017

:

Workers’ Compensation Appeal :

Board (Stahl), :

Respondent :

O R D E R

AND NOW, this 1

st day of June, 2018, the order of the Workers’ 

Compensation Appeal Board (Board) is hereby VACATED. The above-captioned 

matter is REMANDED to the Board with instructions that the Board remand the 

matter to the Workers’ Compensation Judge (WCJ) for the WCJ to issue a new

decision and order.

Jurisdiction relinquished.

P. KEVIN BROBSON, Judge