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.
2

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.
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. 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 
4

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.
5

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).
6

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 
7

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:
8

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 
9

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 
10

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 191⁄2 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.
11

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 
12

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 
13

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.
14

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).
15

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 
16

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.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kenneth Stahl, :

Petitioner :

:

v. : No. 1575 C.D. 2019

:

Workers’ Compensation Appeal :

Board (East Hempfield Township), :

Respondent :

O R D E R

AND NOW, this 14th day of August, 2020, the order of the Workers’ 

Compensation Appeal Board is AFFIRMED.

P. KEVIN BROBSON, Judge