Workers' Compensation Defense

This case involved a Claim Petition filed based on an occupational disease. The claimant worked as a firefighter and filed an Act 46 firefighter/cancer claim, alleging he sustained colon cancer as of August 23, 2019. In his petition, he listed his last day of work and exposure as September 1, 2018, and his date of injury/onset of disease as August 23, 2019. The claimant alleged the injury occurred due to his exposure to carcinogens as a firefighter for more than 40 years. 

The employer defended the petition on the basis that the claimant failed to provide timely notice of his injury and failed to file a timely petition under the Act. The workers’ compensation judge granted the Claim Petition, and the Appeal Board affirmed on appeal. 

The Commonwealth Court also affirmed, rejecting the employer’s arguments the claimant failed to give timely notice under Section 311 of the Act, and that he had no viable Section 301(c)(1) claim because he filed his Claim Petition more than three years after his date of diagnosis.

According to the employer, the claimant became aware of his injury, and its relationship to his employment, in June 2019, when he spoke with a fellow firefighter about the Act 46 cancer presumption. According to the employer, from that point, the claimant missed the 21-day window and, instead, provided notice within 120 days. The court rejected the employer’s argument the claimant knew of his cancer’s work-relatedness at the time he learned about Act 46 from a fellow firefighter. The court said that conversation did not impute actual knowledge to the claimant that his cancer was caused by exposure. The claimant did not have actual knowledge of the nexus until after reviewing a doctor’s report of December 27, 2019. 

The court further rejected the employer’s argument that the Claim Petition was filed untimely, pointing out the employer acknowledged, before the Appeal Board, that the date of injury was synonymous with the date of disability. The claimant testified he began dialysis in July 2019, left work at that time, and began receiving Social Security Disability Benefits. Thus, the claimant’s date of disability was July 2019, and the Claim Petition filed in December 2019 was within three years of his date of injury. 

Finally, although the court found the evidence did not support the judge’s finding that the claimant had colon cancer, they held that her finding that the claimant had cancer in the form of a soft tissue sarcoma was supported by substantial evidence. The court further found the claimant, therefore, met his burden on his Claim Petition, since the judge did not rely solely on the claimant’s colon cancer to determine entitlement to benefits. The claimant established an entitlement to the rebuttal presumption of causation for his cancer under Section 301(f) of the Act, and the employer failed to establish a specific, non-firefighting cause of the claimant’s cancer necessary to rebut that presumption. 

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_{What’s Hot in Workers’ Comp, Vol. 29, No. 2, February 2025, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2025 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}