IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Cheryl Steele and Roy Steele :

(deceased), :

Petitioner :

:

v. : No. 875 C.D. 2016

: Submitted: November 10, 2016

Workers’ Compensation Appeal :

Board (Findlay Township), :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY

JUDGE COHN JUBELIRER FILED: March 8, 2017

Cheryl Steele (Claimant) petitions for review of an Order of the Workers’ 

Compensation Appeal Board (Board) that reversed the decision and order of a 

Workers’ Compensation Judge (WCJ). The Board concluded the WCJ erred in 

granting Claimant’s Fatal Claim Petition (Claim Petition) because she failed to 

introduce Pennsylvania Fire Information Reporting System (PennFIRS) reports to 

establish that her late husband, Roy Steele (Decedent), was directly exposed to 

carcinogens while serving as a firefighter with Imperial Volunteer Fire 

Department, as required under the Workers’ Compensation Act (Act).

1 On appeal, 

Claimant argues the WCJ correctly relied upon the testimony of lay witnesses to 

 

1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.1, 2501-2708.
2

establish evidence of direct exposure. Further, Claimant argues that other sections 

of the Act provide a basis to grant the Claim Petition. We agree that the WCJ 

erred in granting the Claim Petition without PennFIRS reports, which are required 

of volunteer firefighters by the plain language of the Act. However, because 

neither the WCJ nor the Board considered whether Claimant was entitled to 

benefits under alternative sections of the Act, we remand for further proceedings. 

Decedent joined the volunteer fire department in 1968. (WCJ Decision, 

Findings of Fact (FOF) ¶ 1.) Over the course of his career, he served as a 

lieutenant, assistant captain, captain, assistant chief, and chief. (Id.) Decedent 

held the position of fire chief for 20 years before stepping down in 2004 due to 

high blood pressure. (FOF ¶¶ 1-2.) Although he no longer served as chief, 

Decedent continued to respond to fires and served as captain up until the year 

before he died. (Id. ¶ 1.) In October 2009, he was diagnosed with stage 4 lung 

cancer. (Id.) Decedent died on August 5, 2011. (Id.) 

On June 8, 2012, Claimant filed a lifetime claim petition on Decedent’s 

behalf, alleging his cancer was caused by exposure to carcinogens recognized as 

Group 1 carcinogens by the International Agency for Research on Cancer (IARC), 

and therefore Decedent was entitled to total disability benefits under Section 108(r)

of the Act.

2

 (Lifetime Claim Petition, C.R. Item 1.) She filed the Fatal Claim 

Petition three days later. (Claim Petition, C.R. Item 2.) 

At various hearings, in addition to Claimant, two fellow firefighters testified 

about Decedent’s service. The first fellow firefighter served with Decedent for 

seven years, during which time he observed Decedent fighting fires and going into 

 

2

77 P.S. § 27.1(r), added by Section 1 of the Act of July 7, 2011, P.L. 251. 
3

structures during overhaul.3 (FOF ¶ 3.) During this time, Decedent would have 

been exposed to smoke. (Id.) Although Decedent was chief and his primary 

responsibility was directing manpower, the first firefighter said there is still smoke 

outside of the structure. (Id.) In addition, the firefighter explained that Decedent 

would have been exposed to diesel fumes from the fire trucks at the station. (Id.) 

His testimony was corroborated by the testimony of the second fellow firefighter, 

who served with Decedent for five years, during which time Decedent was captain. 

(FOF ¶ 4.) 

The current fire chief testified that of the approximately 150 calls per year, 

only six to eight are actual fires. (FOF ¶ 5.) He testified that Decedent managed a 

fire scene as a “fire ground chief,” meaning he managed from his vehicle to avoid 

smoke and better visualize the fire ground. (Id.) The current fire chief never saw 

Decedent attack a fire from inside a building or physically fight a fire; however, he 

acknowledges Decedent would have entered structures during overhaul. (Id.) The 

current fire chief also disputed that a fire truck would idle for long periods of time 

inside the station. (Id.) Notably, no PennFIRS reports were introduced by either 

party.

4

 Both parties also introduced expert testimony in support of their respective 

positions. (FOF ¶¶ 6-7.) 

 

3 Overhaul occurs when firefighters go into a structure after the fire has been suppressed 

to see where fire and hotspots remain. (FOF ¶ 3.)

4

The current chief of the fire department testified at his deposition in 2013 that the 

department had been participating in the National Fire Reporting System for two years. (FOF ¶ 

5.) It is not clear how the national system differs, if at all, from PennFIRS. Regardless, it is 

evident that neither national nor state records were available for the time period Decedent was an 

active volunteer firefighter. However, the current fire chief testified the fire department 

maintained its own records of who responds to fires and produced four boxes of such records, 

dating back to 1964, at his deposition pursuant to Claimant counsel’s subpoena. (R.R. at 192, 

242.) Of the four boxes, only one “incident report” was introduced into evidence. (R.R. at 269.) 
4

The WCJ subsequently issued a decision and order on September 16, 2014, 

dismissing the lifetime claim petition,

5

but granting the Fatal Claim Petition. (WCJ 

Decision, Conclusions of Law (COL) ¶¶ 1-2.) The WCJ concluded that the lay 

testimony of Claimant and two fellow firefighters was sufficient to establish that 

Decedent was directly exposed to Group 1 carcinogens, and PennFIRS reports 

were not necessary as they were within the control of the Employer Findlay 

Township (Employer). (FOF ¶ 20.) The WCJ further concluded that Employer 

successfully rebutted the presumption under Section 108(r) of the Act,

6

but 

Claimant met her burden of demonstrating a work-related injury caused or 

contributed to Decedent’s disability through the credible testimony of lay and 

expert witnesses. (FOF ¶ 19.) 

Employer filed a timely appeal to the Board, challenging the WCJ Decision 

on two grounds. First, Employer argues the WCJ erred in awarding benefits in the 

absence of PennFIRS reports. Second, Employer contended the WCJ erred in 

rejecting its competency challenge to Claimant’s expert. Upon review, the Board 

concluded the WCJ erred in accepting lay witness testimony instead of requiring 

 

5 Claimant did not appeal the dismissal of the lifetime claim petition. 

6

The presumption is actually contained in Section 301(e), 77 P.S. § 413, added by 

Section 3 of the Act of October 17, 1972, P.L. 930, which provides:

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. 

As discussed below, Section 301(f), 77 P.S. § 414, added by Section 2 of the Act of July 

7, 2011, P.L. 251, imposes additional conditions on the presumption that must be satisfied in 

cases of firefighters claiming cancer as an occupational disease.
5

the statutorily mandated PennFIRS reports.7 (Board Op. at 12-14.) The Board 

reasoned that, under the terms of the Act, volunteer firefighters had to comply with 

special requirements to establish direct exposure to Group 1 carcinogens; namely,

volunteer firefighters had to introduce PennFIRS reports as evidence of direct 

exposure to carcinogens. (Id. at 12.) Although Claimant herself testified about 

Decedent’s exposure, along with two fellow firefighters, (id. at 3-4), the Board 

concluded that such lay witness testimony was insufficient under the terms of the 

Act. (Id. at 11-12.) In its thoughtful and thorough Opinion, the Board examined 

the legislative history of the amendments to the Act, which added the provisions in 

question, and stated “the Legislature clearly intended career and volunteer 

firefighters to be treated differently and therefore delineated the objective proofs 

necessary for a volunteer firefighter to maintain a Section 108(r) claim.” (Id. at 

12.) It concluded that lay testimony concerning Decedent’s participation in fire 

calls was “not tantamount to ‘evidence of direct exposure to a carcinogen referred 

to in [S]ection 108(r) as documented by reports filed pursuant to . . . [PennFIRS],’” 

which is required by the plain language of the Act. (Id. at 13-14.) 

Following the Board’s reversal of the WCJ Decision, Claimant appealed to 

this Court.8 She asserts on appeal that the Board erred in finding her ineligible for 

benefits because of the lack of PennFIRS reports, and even if the reports are 

 

7 Because the Board disposed of the appeal on the first issue, it did not reach Employer’s 

second issue. (Board Op. at 14.) 

8

“Our review is limited to determining whether the necessary findings of fact are 

supported by substantial evidence, whether Board procedures were violated, whether 

constitutional rights were violated or [whether] an error of law was committed.” Haddon 

Craftsmen, Inc. v. Workers’ Comp. Appeal Bd. (Krouchick), 809 A.2d 434, 438 n.2 (Pa. 

Cmwlth. 2002). To the extent this appeal turns on a question of statutory construction, our 

review is plenary. Combine v. Workers’ Comp. Appeal Bd. (Nat’l Fuel Gas Distrib. Corp.), 954 

A.2d 776, 778 (Pa. Cmwlth. 2008). 
6

necessary, she still would have been entitled to benefits under other sections of the 

Act.9 Employer responds by arguing that the plain language of the Act requires 

PennFIRS reports for volunteer firefighters and that Claimant failed to plead, and 

therefore waived, the ability to recover under different provisions of the Act. We 

will address these issues in turn.

An occupational disease is defined in Section 108 as a compensable injury 

under the Act. Section 301(c)(2), 77 P.S. § 411(2). The definition of 

“occupational disease” was amended by Act 46 of 201110 to add Section 108(r), 

which specifically 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]” as an occupational disease. 77 P.S. § 27.1. As stated above, Section 

301(e) provides a presumption that an occupational disease arose out of and in the 

course of a claimant’s employment. 77 P.S. § 413. In short, “where a claimant has 

an occupational disease listed in Section 108 of the Act, the claimant need not 

prove this occupational disease was caused by workplace exposure, as opposed to 

another exposure”; instead it is the employer’s burden to show otherwise. City of 

Phila. Fire Dep’t v. Workers’ Comp. Appeal Bd. (Sladek), 144 A.3d 1011, 1020 

(Pa. Cmwlth. 2016), petition for allowance of appeal granted (Pa. No. 13 EAP

2017, filed March 1, 2017). 

However, as we stated in Sladek, Act 46 also added Section 301(f), which 

imposed an additional condition on the presumption where the occupational 

disease is cancer suffered by a firefighter. Id. Section 301(f) provides that a 

firefighter is entitled to benefits under Section 108(r), provided he can show: 

 

9

To ease disposition, we have reordered Claimant’s issues. 

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

(1) employment for four or more years in continuous firefighting duties; (2) direct 

exposure to an IARC Group 1 carcinogen; and (3) that he passed a physical 

examination prior to engaging in firefighting duties that did not reveal any 

evidence of cancer. 77 P.S. § 414. Important for purposes of this appeal, Section 

301(f) further provides:

Any claim made by a member of a volunteer fire company shall be 

based on evidence of direct exposure to a carcinogen referred to in 

section 108(r) as documented by reports filed pursuant to [PennFIRS]

and provided that the member’s claim is based on direct exposure to a 

carcinogen referred to in section 108(r). 

Id. (emphasis added). 

Recently, we have had occasion to interpret Sections 108(r) and 301(f) as 

they relate to career firefighters, see, e.g., Hutz v. Workers’ Comp. Appeal Bd. 

(City of Phila.), 147 A.3d 35, 52-55 (Pa. Cmwlth. 2016), petition for allowance of 

appeal filed (Pa. No. 444 EAL 2016, filed October 3, 2016); Sladek, 144 A.3d at 

1020-22;, but never in the context of volunteer firefighters and the additional 

requirement imposed upon them by Section 301(f). Our analysis, though, is guided 

by the same principles of statutory construction, which provide “[w]hen the words 

of a statute are clear and free from all ambiguity, the letter of it is not to be 

disregarded under the pretext of pursuing its spirit.” 1 Pa. C.S. § 1921(b). 

Furthermore, when words are free and clear of ambiguity, they are to be construed 

in accordance with their common and approved usage. 1 Pa. C.S. § 1903(a). Here, 

the Act clearly requires that in addition to the requirements all firefighters must 

establish, volunteer firefighters shall also provide evidence of direct exposure to 

carcinogens as documented by PennFIRS reports. The lay testimony of Claimant 

and two firefighters who fought alongside Decedent is insufficient to satisfy this 

requirement. 
8

The Board, however, augmented its discussion of the plain language of the 

Act, by examining the legislative history of the Act. The Board compared House 

Bill 797, which was ultimately enacted as Act 46, with a predecessor version, 

House Bill 1231, which was passed by the House and Senate but vetoed by the 

Governor. The original bill provided:

A claim made by a member of a volunteer fire company must be 

based on evidence of exposure to causal factors as documented by 

reports filed pursuant to [PennFIRS], if such fire company participates 

in the system, and provided that the member’s claim is based on being 

exposed to causal factors on or after the date the fire company began 

to utilize the reporting system.

H.B. 1231, 2009-10 Reg. Sess., Printer No. 2547. A later version of the bill

removed the language “if such fire company participates in the system” and made a 

few other non-substantive changes. See H.B. 1231, 2009-10 Reg. Sess., Printer 

No. 4393. Act 46 uses substantially the same language as its predecessor bill and 

also omits the language “if such a fire company participates in the system.” This 

signals that the General Assembly was cognizant that not all volunteer fire 

companies participate in PennFIRS, but such reports would still be required under 

the Act, thereby potentially foreclosing claims by those who did not participate. 

Further evidence of this awareness is found in comments of the bill sponsor, who 

explained one of the rationales behind the requirement was to provide “a built-in 

incentive for volunteer fire companies to fully utilize the PennFIRS system and [] 

push them to provide thorough information when filling out their PennFIRS 

reports.” Pa. Legis. Journal – House, June 21, 2011, at 1338. He further explained 

that “the utilization of the PennFIRS system would serve to document that the 

volunteer firefighter was present at an incident where a known carcinogen was 

present.” Id. Therefore, the legislative history confirms an intent that volunteer 
9

firefighters were to be treated differently than career firefighters. In cases such as 

this, where the amount of actual exposure of the volunteer firefighter is disputed, 

the conflict is resolved by requiring objective, documentary evidence of exposure 

to carcinogens in the form of PennFIRS reports. Here, no such evidence was 

presented. Thus, the Board correctly determined Claimant did not and could not

establish direct exposure to Group 1 carcinogens through her lay witness testimony 

and was therefore ineligible for benefits under Act 46. 

Our inquiry does not end here, however. Claimant asserts that regardless of 

whether PennFIRS reports are required, other sections of the Act – namely, Section 

108(o) and/or Section 301(c)(1) – would still provide her with relief. 77 P.S. §§ 

27.1(o), 411(1). Section 108(o) of the Act defines “occupational disease” to 

include:

[d]iseases of the heart and lungs, resulting in either temporary or 

permanent total or partial disability or death, after four years or more 

of service in fire fighting for the benefit or safety of the public, caused 

by extreme over-exertion in times of stress or danger or by exposure 

to heat, smoke, fumes or gasses, arising directly out of the 

employment of any such firemen.

77 P.S. § 27.1(o). Section 301(c)(1) of the Act defines “injury” to include:

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 or is aggravated, reactivated or 

accelerated by the injury.

77 P.S. § 411(1). Claimant argues that the WCJ’s findings of fact establish that 

Decedent’s lung cancer was caused by his exposure to smoke and diesel fuel 

emissions as a volunteer firefighter. Employer argues Claimant never pursued 

benefits under either of these provisions and, therefore, is barred from doing so 

now. We disagree for a number of reasons. 
10

First, Claimant’s counsel did raise Section 301(c) at a hearing on July 25, 

2012, before the WCJ. (R.R. at 35.) Second, the fatal claim petition is silent as to 

what theory of compensability Claimant was pursuing.11 Third, Claimant was not 

aggrieved until the Board reversed the WCJ findings, and therefore did not have 

any reason to raise the WCJ’s and/or Board’s failure to look at other theories 

earlier. Fourth and finally, the case law is well established that a claimant can 

proceed under theories of compensability that were not previously pleaded. See

City of Phila. v. Workers’ Comp. Appeal Bd. (Cospelich), 893 A.2d 171, 179 (Pa. 

Cmwlth. 2006) (finding “the form of the petition [filed] is not controlling where 

the facts warrant relief, and that if a claimant is entitled to relief under any section 

of the Act, his petition will be considered as filed under that section”) (citation 

omitted). The Pennsylvania Supreme Court has affirmed this practice. See Gen. 

Refractories Co. v. Workmen’s Comp. Appeal Bd. (Wright), 635 A.2d 120, 122-23

(Pa. 1993). This is the case whether or not the claimant attempts to amend the 

petition. Long v. Workmen’s Comp. Appeal Bd. (Anchor Container Corp.), 505 

A.2d 369, 373 (Pa. Cmwlth. 1986). Therefore, the proper course is to vacate the 

Order denying Claimant benefits and remand the record to the Board for 

consideration of whether Sections 301(c)(1) and/or 108(o) provide a basis for 

recovery. Long, 505 A.2d at 373 (citing Leed v. Workmen’s Comp. Appeal Bd. 

(Quaker Alloy Casting Co.), 504 A.2d 433, 437 (Pa. Cmwlth. 1986)). 

 

11 Employer argues the lifetime claim petition filed was clearly proceeding under Section 

108(r) and apparently urges this Court to conclude that the fatal claim petition is based on a 

similar theory. We decline to make this inference, particularly given Claimant counsel’s 

representation to the contrary at the July 25, 2012 hearing. 
11

Accordingly, we will vacate the Board’s Order and remand for proceedings 

consistent with this opinion. 

________________________________

RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Cheryl Steele and Roy Steele :

(deceased), :

Petitioner :

:

v. : No. 875 C.D. 2016

:

Workers’ Compensation Appeal :

Board (Findlay Township), :

Respondent :

O R D E R

NOW, March 8, 2017, the order of the Workers’ Compensation Appeal 

Board dated March 25, 2016, at Appeal No. A14-1039, is vacated, and the record 

is remanded to the Board for further proceedings consistent with this opinion.

Jurisdiction relinquished. 

________________________________

RENÉE COHN JUBELIRER, Judge