IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William Campbell, :

Petitioner :

: No. 1031 C.D. 2016

v. :

: Submitted: November 18, 2016

Workers’ Compensation Appeal :

Board (City of Philadelphia), :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE McCULLOUGH FILED: March 3, 2017

William Campbell (Claimant) petitions for review of the June 10, 

2016, order of the Workers’ Compensation Appeal Board (Board) affirming the 

decision of the Workers’ Compensation Judge (WCJ) denying the claim petition 

filed against the City of Philadelphia (Employer).

Facts and Procedural History

Claimant filed a claim petition on October 5, 2012, alleging “direct 

exposure to IARC Group 1 carcinogens while working as a firefighter.” (WCJ’s 

Finding of Fact (F.F.) No. 1.) Although there was no injury description in the 

claim petition, Claimant amended the claim petition orally at a hearing before the 
2

WCJ so that the description of injury included, “melanoma of the right lower 

leg...[and] melanoma of the low back.” (WCJ’s F.F. No. 1, fn 1.) Employer filed 

a timely answer denying all material allegations as well as raising numerous 

affirmative defenses. (WCJ’s F.F. No. 2.)

Claimant testified by deposition in the proceedings before the WCJ, 

confirming just over thirty-five years of service with Employer’s Fire Department, 

starting in January of 1969 and retiring on March 30, 2004. (WCJ’s F.F. No. 

16(a), (r).)

Claimant began service as a firefighter and progressed in promotions 

to lieutenant, captain, and battalion chief, working in each position in a firehouse 

and not an office. His service resulted in his exposure to diesel fuel emissions, 

smoke and fumes from house fires, office building fires, refinery fires, automobile 

and truck fires, and fires of many other kinds, and second-hand smoke from fellow 

firefighters at fire houses where he served. He never smoked but his wife did and 

does. (WCJ’s F.F. No. 16.)

Claimant testified that he only occasionally wore a self-contained 

breathing apparatus (SCBA) because even when available, the devices impeded 

communication and made it “more dangerous climbing the ladder and operating up 

there.” (WCJ’s F.F. No. 16(m).)

Claimant and his family regularly vacationed at the beach in Sea Isle 

City, New Jersey, for twenty-three years, but he asserted that he always protected 

himself from sun exposure because he was a “fair haired Irishman...[with] red hair 

and freckles.” (WCJ’s F.F. No. 16(w), (gg).)

There was no evidence that Claimant suffered from or was treated for 

any cancer during his career with Employer. He was first diagnosed with cancer in 
3

the form of melanomas in January of 2007, October of 2008, and October of 2011, 

and following surgical excision in each instance, there was no spread of the 

disease. (WCJ’s F.F. No. 16 (b), (p), (q), (r).)

Claimant testified that until he received a letter in October of 2012

from Claimant’s counsel that enclosed a report from Dr. Singer, he had no idea that 

his cancer and his service as a firefighter were related. (WCJ’s F.F. No. 16(s).)

In support of his claim petition, Claimant offered a report from Dr. 

Singer dated September 19, 2012. Board-certified in internal medicine (with a 

subspecialty in hematology and oncology), Dr. Singer never examined Claimant 

but did review an array of records as well as affidavits from Claimant and records 

from Claimant’s family and treating physicians. Dr. Singer concluded, “it is my 

opinion that Mr. Campbell’s exposures to carcinogens while working for the City 

of Philadelphia was [sic] a substantial contributing factor in the development of his 

melanomas...I hold all my opinions within a reasonable degree of medical 

certainty.” (WCJ’s F.F. No. 18, quoting Dr. Singer’s September 19, 2012, report, 

R.R. at 30.)

Claimant also offered a report from Virginia Weaver, M.D., dated 

March 28, 2012. Board-certified in occupational medicine and internal medicine, 

Dr. Weaver did not examine Claimant either, and she provided an opinion that “a 

wide range of chemicals classified as known or probable human carcinogens by the 

International Agency for Research on Cancer (IARC)...are found in smoke from 

burning structures, including buildings and automobiles.” She also wrote that the 

protection provided by equipment worn by firefighters is incomplete. She also 

stated that exposure to probable human carcinogens was greater in the past, when 

it was not known that carcinogen exposure continues in the “overhaul” phase of 
4

extinguishing a blaze and when firefighters routinely removed their respiratory 

protection to better assess the potential for re-ignition. (WCJ’s F.F. Nos. 20, 21.)

Preliminarily, Employer argued for dismissal of the claim petition 

based on the following grounds. First, Employer argued that Claimant provided 

inadequate notice because the purported notice was a letter from Claimant’s 

counsel dated November 2, 2011 (Claimant’s exhibit C-9), and that letter preceded 

any written notice by any medical professional of the work-relatedness of the 

claim. The report from Barry Singer, M.D, dated September 19, 2012, connected 

Claimant’s injury and disability to his job as a sanitation laborer. (Reproduced

Record (R.R.) at 27-30.) 

Next, Employer argued preliminarily that the claim petition should be 

dismissed because Dr. Singer’s testimony should be precluded as incompetent 

under Rule 702 of the Pennsylvania Rules of Evidence and Frye v. United States, 

293 F. 1013 (D.C. Cir. 1923). Focusing solely on this preliminary matter, 

depositions of Dr. Singer and Tee Guidotti, M.D. (testifying on behalf of 

Employer) yielded twenty-six pages of single-spaced findings of fact by the WCJ, 

who ruled that ‘the opinions rendered by Dr. Singer do have ‘general acceptance in

the particular field in which it belongs,’ and therefore the [Employer’s] Frye

motion is denied.”1 (WCJ’s F.F. No. 15.) 

 

1As our Supreme Court stated in Grady v. Frito–Lay, Inc., 839 A.2d 1038 (Pa. 2003): 

“The Frye test ... is part of [Pennsylvania Rule of Evidence 702 and u]nder Frye, novel scientific 

evidence is admissible if the methodology that underlies the evidence has general acceptance in 

the relevant scientific community.” Id. at 1043–44. The proponent of scientific evidence must 

demonstrate that the “methodology an expert used is generally accepted by scientists in the 

relevant field as a method for arriving at the conclusion the expert will testify to at trial.” Id. at 

1045. However, the proponent of the evidence is not required to “prove that the scientific 

community has also generally accepted the expert's conclusion.” Id. Also, the testimony must be 

(Footnote continued on next page...)
5

Employer did not offer any testimony in its case in chief, but did present materials 

from two physicians who treated or assisted in treating Claimant. In his progress 

note of January 29, 2007, Stephen Hess, M.D., discussed a biopsy on Claimant’s 

right calf on January 17, 2007, which revealed a melanoma where Claimant told 

him he had had a mole present since childhood. The mole had recently become 

darker but did not change in size. Claimant reported to Dr. Hess “a history of 

extensive sun exposure throughout his lifetime as he is an avid golfer, fisherman, 

and spends a significant amount of time at the shore.” Dr. Hess recommended 

surgical excision and “avoidance of unnecessary exposure including use of sunprotective clothing and sunscreen.” (WCJ’s F.F. No. 23.)

Employer also presented a report from Diane Hershock, M.D., dated 

at an unspecified day in March of 2007. She confirmed treatment of the “recently 

diagnosed melanoma,” and noted Claimant’s “extensive sun exposure history as he 

is an avid golfer and fisherman. He has had multiple blistering burns in the past 

and did have a nevus on his lower leg which he had for years.” On physical 

examination, Dr. Hershock noted the surgical scar on Claimant’s right posterior 

calf as well as “severe freckling in the sun exposed areas.” She concluded, “We 

also had a lengthy discussion concerning his lengthy sun exposure and the 

alteration that will need to occur in his lifestyle since he remains an avid golfer and 

fisherman.” (WCJ’s F.F. No. 24.)

 

(continued...)

given by “a witness who is qualified as an expert by knowledge, skill, experience, training or 

education....” Id.
6

In his decision and order circulated January 7, 2015, the WCJ implied 

that Claimant neither knew nor should have known of the “possible relationship to 

his employment” until August 26, 2011 (68 days before the notice letter) and so 

overruled Employer’s objections and found that notice was given properly by 

means of the letter of November 2, 2011, pursuant to Section 311 of the Workers’ 

Compensation Act (Act).2 Otherwise, the WCJ found the Claimant credible, and 

found Dr. Weaver credible,

as to the limited issues addressed in her report. However, 

this Judge finds her report provides no material evidence 

as to the claim at issue, specifically William 

Campbell....Dr. Weaver...never examined the Claimant, 

never reviewed any medical record relevant to the 

Claimant; never reviewed records from the City of 

Philadelphia Fire Department[,] and performed no 

research relevant to the Commonwealth of Pennsylvania. 

Rather, her reports contained anecdotal evidence relative 

to firefighters in Virginia, Colorado and Maine.

 

(WCJ’s F.F. Nos. 4, 5, 22.)

The WCJ rejected the reports of Dr. Singer as “woefully insufficient 

to establish a causal connection between the specific duties of the Claimant as a 

firefighter for the City of Philadelphia and his diagnosis of melanoma without the 

benefits of the presumption set forth in section 301(f)...” (WCJ’s F.F. No. 25.)

Specifically, in rejecting the findings and conclusions of Dr. Singer, 

the WCJ, inter alia, considered the following: 

(b) He failed to perform a physical examination of the 

Claimant.

 

2 Act of June 2, 1915, P.L.736, as amended, 77 P.S. §631.
7

(c) He failed to obtain an occupational history from the 

Claimant, which included a tour of duty in the Army and 

work as a pipefitter at the Philadelphia Navy Yard prior 

to entering the fire department.

(d) He failed to address, in any form or fashion, the 

interplay between the Claimant’s extensive exposure to 

sun while NOT performing the duties of a firefighter and 

his alleged exposure while performing his duties as a 

City of Philadelphia firefighter.

(e) He failed to review complete medical records for the

Claimant. He did not request, obtain or review medical 

records which pre-date the diagnosis of malignant 

melanoma nor did he review current medical records for 

the treatment being received by the Claimant....

(f) He based his conclusion of ‘substantial contributing 

factor’ upon limited facts obtain [sic] from a one page 

affidavit.

(WCJ’s F.F. No. 25.) (Emphasis in original.)

Accordingly, while the WCJ found Claimant to have thirty-five years 

of service as a firefighter after having undergone and passed a pre-employment 

physical examination, she found he was not entitled to the presumption of Section 

301(f) of the Act, 77 P.S. §414, because he failed to file his claim petition within 

300 weeks from Claimant’s last date of employment as a firefighter. Rather, 

Claimant did not file his petition until just over 444 weeks from his last date of 

employment as a firefighter (March 30, 2004, until October 5, 2012). (WCJ’s F.F.

Nos. 26, 27, 28, 29.)
8

Claimant appealed to the Board, which affirmed. Neither of the 

preliminary matters was the subject of any appeal to the Board or this Court. 

Claimant now appeals to this Court.3

Claimant has narrowed his discussion to two issues: (1) “Whether the 

[Board] committed an error of law by misinterpreting Section 301(f) of the Act to 

require a Firefighter to file a petition within 300 weeks to claim benefits for cancer 

pursuant to Section 108(r) of the Act with the rebuttable presumption of 

compensability;” and, (2) “Whether the Discovery Rule applies to extend the time 

that a Firefighter diagnosed with cancer pursuant to Section 108(r)4has to file a 

Claim Petition if, as found by the [Board], Section 301(f) creates a limitation on 

the time a Firefighter has to file a Petition.” 

Discussion

The Rebuttable Presumption

Section 301(f) of the Act lays out the particulars for cancer claims by 

firefighters under Section 108(r) of the Act. The requirements include at least four 

years of continuous firefighting service, having “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,” and a “cancer...which is caused by exposure to a known 

 

3 Our scope of review is limited to determining whether findings of fact are supported by 

substantial evidence, whether an error of law has been committed, or whether constitutional 

rights have been violated. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704; 

Meadow Lakes Apartments v. Workers’ Compensation Appeal Board (Spencer), 894 A.2d 214, 

216 n.3 (Pa. Cmwlth. 2006). 

4

Section 108 was added by the Act of October 17, 1972, P.L. 930, No. 223. 
9

carcinogen which is recognized as a Group 1 carcinogen by the International 

Agency for Research on Cancer.”5 If a professional firefighter meets these 

prerequisites, the Act provides as follows:

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 hundred weeks after the last date of 

employment in an occupation or industry to which a 

claimant was exposed to the hazards of disease. The 

presumption provided for under this subsection shall only 

apply to claims made within the first three hundred 

weeks. 

77 P.S. §414.

This Court has held that the three hundred weeks for the presumption 

in Section 301(f) is measured by the time between (1) Claimant’s “last date of 

employment in an occupation or industry to which the claimant was exposed to the 

hazards of disease,” and, (2) the date a claim petition is filed. Fargo v. Workers’ 

Compensation Appeal Board (City of Philadelphia), 148 A.3d 514, 520 (Pa. 

Cmwlth. 2016), and, Hutz v. Workers’ Compensation Appeal Board (City of 

Philadelphia), 147 A.3d 35, 52-53 (Pa. Cmwlth. 2016).

Here, Claimant’s last date of employment was March 30, 2004. He 

filed the claim petition on October 5, 2012, just over 444 weeks later. Thus, under 

 

5

77 P.S. §§ 414 and 27.1.
10

the terms of the statute, Claimant was barred from taking advantage of the 

presumption set forth in Section 301(f) of the Act.

Discovery Rule Does Not Apply

Claimant’s next argument on appeal is that “[i]f §301(f) is found to be 

a limitations period, Petitioner avers that the [Board] committed an error by [sic]

law by failing to apply the discovery rule applicable to the limitations period for 

occupational disease claims made pursuant to §301(c)(2) of the Act.” (Petition for 

Review, ¶5.) 

In other words, Claimant argues that the discovery rule means that if 

Claimant filed his claim petition within three years after learning that his cancer 

may be compensable under the Act, then the time is measured under Section 315 of 

the Act, 77 P.S. §602. Thus, Claimant’s assertion is that the three-year limitation 

period is tolled, that is, the clock does not start ticking until he knew or should 

have known of a work-related disease. Here, that means that because Claimant 

learned of the possibly work-related nature of his cancer at some unspecified date 

in October of 2012 (WCJ’s Finding of Fact No. 16(s)) and he filed his claim 

petition on October 5, 2012, then his claim petition certainly is timely.

Claimant questions why firefighters diagnosed with cancer have two 

filing limitations. See, Brief for Petitioner, page 23, fn 5. Here, Claimant conflates 

the statute of limitations in Section 315 with the statute of repose in Section 301(f). 

They are not contradictory but complementary. Claimant’s argument was rejected 

expressly by this Court in Fargo, which we will quote at length because the 

reasoning is just as dispositive in the present case. In Fargo, we stated that:

[T]he 600-week limitations period of Section 301(f) acts 

as a statute of repose and is not subject to a discovery 

rule under Price [v. Workmen’s Compensation Appeal 

Board (Metallurgical Resources), 626 A.2d 114 (Pa. 

1993)]. Our Supreme Court has explained the difference 
11

between a statute of limitations and a statute of repose as 

follows:

A statute of limitations is procedural and 

extinguishes the remedy rather than the 

cause of action. A statute of repose, 

however, is substantive and extinguishes 

both the remedy and the actual cause of 

action. Generally, the critical distinction in 

classifying a statute as one of repose or one 

of limitations is the event or occurrence 

designated as the “triggering” event. In a 

workers’ compensation claim, the common 

triggering event for statute of limitations 

purposes is the disability of the employee, 

which defines the accrual of the action. That 

is the point at which all the elements of the 

action have coalesced, resulting in a legally 

cognizable claim.

A statute of repose, however, typically sets 

the triggering event as something other than 

the point at which the cause of action arises. 

Within the workers' compensation scheme, 

the common triggering event is the workrelated incident/injury, regardless of whether 

disability results at that time. Thus, a statute 

of repose may also prevent the accrual of a 

cause of action where the final element 

necessary for its creation occurs beyond the 

time period established by the statute. At the 

end of the time period specified in the 

statute, the cause of action ceases to exist, 

unless the claimant can bring himself within 

any tolling provision enunciated in that 

statute.

Westinghouse Electric Corp./CBS v. Workers' 

Compensation Appeal Board (Korach), 584 Pa. 411, 883 

A.2d 579, 588 n.11 (2005) (citations omitted). The 

“triggering event” for the purposes of Section 301(f) 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. A firefighter who contracts 
12

cancer may file a claim under Section 108(r) within 300 

weeks of the last workplace exposure and take advantage 

of the statutory presumption of compensability. In 

addition, the General Assembly provided a Section 

108(r) claimant an additional 300 weeks to file a claim 

albeit without the benefit of the statutory presumption. 

However, once 600 weeks elapse from the date of the last 

workplace exposure, the cause of action under Section 

108(r) ceases to exist.

Claimant's argument that the 600-week limitation period 

of Section 301(f) was intended by the General Assembly 

to supersede Section 315 and Price is unsupported by the 

text of the Act as neither Section 301(f) nor Section 

108(r) state that Section 315 is inapplicable to Section 

108(r) claims. Furthermore, the 600-week limitation of 

Section 301(f) does not conflict with the application of 

the discovery rule to Section 315 as the three-year 

limitations period of Section 315 may still be tolled in 

Section 108(r) cases where the claimant was not aware of 

the nature of his occupational disease, provided that the 

claim is filed before the expiration of the 600-week 

period. However, simply because a discovery rule is 

applicable to Section 315 does not provide a basis for 

application of a discovery rule to Section 301(f), 

particularly where diagnosis and knowledge that a 

condition is work-related are irrelevant to the triggering 

event of the Section 301(f) limitations period, which is 

the last date of workplace exposure.

148 A.3d at 521-522. 

Conclusion

Because Fargo is dispositive of the issues raised by Claimant, the 

Board acted properly in affirming the WCJ’s decision.
13

Accordingly, the order of the Board is affirmed.

________________________________

PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William Campbell, :

Petitioner :

: No. 1031 C.D. 2016

v. :

:

Workers’ Compensation Appeal :

Board (City of Philadelphia), :

Respondent :

ORDER

AND NOW, this 3

rd day of March, 2017, the order of the Workers’ 

Compensation Appeal Board dated June 10, 2016, in the above matter is affirmed. 

________________________________

PATRICIA A. McCULLOUGH, Judge