Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

City of Pittsburgh v. Workers' Compensation Appeal Board (Flaherty)

Commonwealth Court of Pennsylvania

June 1, 2018

City of Pittsburgh and UPMC Benefit Management Services, Inc., Petitioners
v.
Workers' Compensation Appeal Board (Flaherty), Respondent

          Submitted: May 4, 2018

          BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE DAN PELLEGRINI, Senior Judge

          OPINION

          DAN PELLEGRINI, SENIOR JUDGE

         The City of Pittsburgh (Employer) petitions for review of the order of the Workers' Compensation Appeal Board (Board) reversing the Workers' Compensation Judge's (WCJ) decision and holding that Anne Marie Flaherty (Claimant) gave notice to Employer within 21 days of when she knew or should have known that her cancer was work-related. Because Claimant gave notice within 21 days, she was entitled to benefits from September 10, 2004, the date she left work due to her injury, as opposed to September 23, 2011, the date she filed her claim petition.

         I.

         A.

         Claimant worked as an active firefighter for Employer for 16 years. In August 2004, she noticed a lump on her breast and had a mammogram, resulting in a diagnosis of breast cancer. A month later, she had a mastectomy. Because of that surgery, she was unable to continue her full duties as a firefighter. Her last official date of employment with Employer was September 9, 2004. It is undisputed that if Claimant had not been diagnosed with cancer, she would have continued working as a firefighter.

         Effective July 7, 2011, the Workers' Compensation Act (Act)[1] was amended via Act 46 of 2011 (Act 46).[2] In Act 46, the General Assembly enacted Sections 108(r) and 301(f), creating a new occupational disease provision to provide a new presumption of compensable disability for firefighters who suffer from cancer.[3]

         Claimant admits that sometime after Act 46's enactment, in the summer of 2011, she received a letter of distribution from her union informing her of the new firefighter cancer presumption law (Union Letter). That Union Letter led Claimant to question whether there was a connection between her job and her cancer. Because Claimant is unable to locate the Letter and cannot remember exactly when she received it, its exact date and contents are unknown. (See Reproduced Record (R.R.) at 63a-64a, 68a.)[4]

         Following receipt of the Union Letter, on September 23, 2011, Claimant filed a claim petition providing notice to Employer of the possible connection between her work and her cancer. She sought payment of medical bills and full disability benefits from September 10, 2004, and ongoing. Notwithstanding, Claimant did not receive actual confirmation of the causal link between her cancer and occupation until several months thereafter - when she received a medical report from her oncologist, Dr. Lanie Francis (Dr. Francis), dated February 24, 2012.[5]

         B.

         Following hearings, now-retired WCJ Linda Tobin (WCJ Tobin) circulated a decision on October 4, 2013, granting Claimant's claim petition. As pertinent, WCJ Tobin concluded that Claimant established direct exposure to a Section 108(r) carcinogen and that she was examined and found cancer-free repeatedly before and during her employment with Employer, and that she served more than four years in continuous firefighting duties. See Section 301(f) of the Act, 77 P.S. § 414. Determining that Claimant filed her claim petition within 300 weeks, WCJ Tobin concluded that Claimant was entitled to the presumption afforded under Section 301(f) of the Act, 77 P.S. § 414. Notwithstanding, WCJ Tobin also concluded that even in the absence of the statutory presumption, Claimant met her burden of proving by a preponderance of the evidence that her cancer was caused by her occupational exposure as a firefighter. WCJ Tobin then awarded Claimant benefits commencing from the last date of employment, September 9, 2004. Employer appealed to the Board.

         Because Claimant's last date of employment was September 9, 2004, and she did not file her claim petition until September 23, 2011 - approximately 367 weeks thereafter - the Board held that Claimant was not entitled to the presumption that her cancer was caused by firefighting because she did not file her claim petition within 300 weeks of her last date of employment. See Section 301(f) of the Act, 77 P.S. § 414. The Board did agree, however, with WCJ Tobin that even in the absence of the presumption, Claimant met her burden of proving that her cancer and disability were caused by her occupational exposure as a firefighter.

         The Board also determined that a remand was necessary because the WCJ did not render any findings as to when Claimant first discovered that her cancer was possibly related to her work as a firefighter or when she provided notice to Employer of the possible connection between her work and her cancer.[6]Specifically, the Board remanded the matter "for the WCJ to render findings and a determination [as to (1)] when Claimant first discovered that her cancer was possibly related to her work as a firefighter and [2] when she provided notice to [Employer] of the possible connection between her work and her cancer. [3] The WCJ shall thereafter reconsider her decision to award benefits as of September 9, 2004 . . . ."[7] (Board's Order dated April 8, 2015) (emphasis added). The Board's order did not authorize the reopening of the evidentiary record.

         C.

         On remand, the matter was reassigned to WCJ Torrey, who found that Claimant failed to demonstrate that she provided notice within 21 days of discovering that her cancer was possibly related to occupational exposure. As he reasoned:

In the present case, claimant, a sophisticated individual, was advised by her union that the workers' compensation law had been changed so that her cancer was presumed to be work-related. . . . That expert advice awakened in her, at once, the idea of exploring whether or not her occupational exposure resulted in her breast cancer. She was not left to "sort through her many symptoms unassisted and essentially diagnose herself, " [Sell v. Workers' Compensation Appeal Board (LNP Engineering), 771 A.2d 1246, 1252 (Pa. 2001), ] but instead had hard advice about the new law and her rights and (presumably) the need to act to enforce same.
And so she did, within 120 days - but unfortunately she is unable to say whether her diligence was so exceptional that she acted within 21 days. She cannot remember, and apparently she no longer possesses the union's letter, so that her memory might be refreshed or restored. Such a showing, however, was part of her burden if she wishes [total temporary disability] benefits retroactive to 2004.

(WCJ Torrey's Decision at 9) (emphasis in original). WCJ Torrey awarded Claimant benefits as of September 23, 2011 - the date she filed her claim petition.

         Employer appealed and the Board reversed in part, determining that the notice period only began once Claimant received the medical report because "mere suspicion, or even certain knowledge of disease or disability, standing alone, does not trigger the notice period." (Board's Decision dated December 8, 2017 at 5) (citing Carrier Coal Enterprises v. Workmen's Compensation Appeal Board (Balla), 544 A.2d 1111 (Pa. Cmwlth. 1988)). Accordingly, the Board concluded that the "21-day and 120-day periods in Section 311 [of the Act] did not begin to run until Claimant had [Dr. Francis's February 24, 2012 medical] report." (Board's Decision dated December 8, 2017 at 5.) Employer then filed this petition for review.[8]

         II.

         On appeal, the parties do not dispute that Claimant suffered a compensable injury and timely filed her claim petition. The only disagreement is whether Claimant filed her claim petition within 21 days of knowing that her cancer was possibly work-related, thereby entitling her to compensation from the date of disability. In other words, the issue before us is not whether ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.