Defense Digest, Vol. 24, No. 4, December 2018

Exercising Reasonable Diligence: Commonwealth Court Provides Guidance to 120-Day Rule

Key Points:

  • Workers’ Compensation Appeal Board’s opinion nullifies the reasonable diligence of Section 311 of the Act.
  • Claimants must show they exercised reasonable efforts to discover the cause of their injuries.
  • The 120-day notice period can begin earlier than when a claimant obtains a medical report correlating the work-relatedness of his/her injuries.


The Commonwealth Court of Pennsylvania recently issued an opinion remanding a matter back to the Workers’ Compensation Appeal Board, finding that the Board failed to properly analyze the issue of whether the claimant had provided timely notice of his stomach cancer to the employer. The court examined and provided guidance regarding the reasonable diligence factor of the “discovery rule.” Specifically, the court found that the 120-day notice period under Section 311 of the Workers’ Compensation Act begins running not only when the claimant knew his cancer was related to work, but when the claimant, through reasonable diligence, should have known.

In E. Hempfield Twp. v. Workers’ Comp. Appeal Bd. (Stahl), 189 A.3d 1114 (Pa.Commw. 2018), the claimant worked as a volunteer firefighter for various fire departments from 1974 through 2008. He began working as a volunteer firefighter for the employer, East Hempfield Township, in 2002. In 2006, the claimant was diagnosed with stomach cancer. He ultimately underwent surgery and radiation therapy and was unable to work for approximately six weeks, after which he returned as a fire police officer and no longer assumed the duties of a firefighter. He later chose to retire on October 29, 2008.

After his diagnosis, the claimant transferred to the fire police position because he did not want to risk smoke inhalation as a firefighter. As early as 2006 or 2007, he suspected a connection between his firefighting duties and his stomach cancer. 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 Workers’ Compensation Act. He again suspected a connection between his firefighting duties and his cancer. He sought the services of an attorney to discuss his workers’ compensation rights and obtained counsel on August 5, 2012.

On September 16, 2014, a doctor confirmed the relationship between the claimant’s cancer and his service as a firefighter, and he filed a claim petition on November 10, 2014. On August 31, 2015, the Workers’’ Compensation Judge granted the claimant’s claim petition. The employer appealed to the Appeal Board, which opined that the judge erred in applying an inapplicable presumption to the claimant’s claim and remanded the matter to the judge to render a determination without applying the presumption. On remand, the judge again granted the claim petition.

The Workers’ Compensation Judge noted the “discovery rule” is equally applicable to the claimant’s obligation to establish that notice of the work-related disease was provided to the employer in accordance with Section 311 of the Act. The 120-day notice period does not begin running 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.” The judge interpreted case law to find that a claimant’s obligation to provide notice starts with the receipt of a medical opinion confirming the injury and its relationship to the job. The judge concluded that, although the claimant knew of a possibility his cancer may have a link to his firefighting activities, it was not until he received a copy of the September 2014 doctor’s report that he knew there was a causal connection. Therefore, the judge concluded the 120-day notice period began to run on September 16, 2014, and the employer was timely notified when the claim petition was filed on November 10, 2014. The employer again appealed to the Appeal Board, alleging, amongst other errors, that the judge erred in concluding that the claimant provided sufficient notice to the employer of his cancer within 120 days.

The Appeal Board again affirmed the Workers’ Compensation Judge’s decision, reasoning 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. The employer appealed to the Commonwealth Court, arguing that the Appeal Board erred by failing to analyze whether the claimant exercised reasonable diligence to discover the origins of his cancer.

The Commonwealth Court found that the Board erred by failing to properly analyze the issue of whether the claimant provided timely notice pursuant to Section 311 of the Act. The court noted that, should it affirm the Board’s opinion, it would not only provide a claimant with a potentially unlimited timeframe to provide notice, but it would also serve to nullify the reasonable diligence requirement of Section 311. The court found that, while sufficient knowledge for the purpose of notice requires more than an employee’s suspicion, it would be illogical to hold that the 120-day notice period can only begin once a claimant receives a physician’s confirmation.

The court looked at Sell v. Workers’ Compensation Appeal Board (LNP Engineering), 771 A.2d 1246 (Pa. 2001), where the claimant suspected her diagnosis of emphysema was from working with formaldehyde as part of her job. Following her hospitalization, she did not return to work but, instead, began looking for a physician with knowledge of the chemicals and dust in her work environment. She did not find one until about nine months after she left work. Once the physician gave her work restrictions, she informed her employer. The Supreme Court held that she could not be charged with knowledge of her work-related injury until she received the physician’s opinion. Specifically, the Supreme Court opined, “[i]n the exercise of reasonable diligence, and with notable persistence, Sell located a physician who confirmed her suspicions.”

Here, the claimant had suspicions in July of 2011, and he hired an attorney on August 5, 2012. Two years later, he received medical confirmation correlating his firefighting duties and his stomach cancer. The court noted that, although he filed his claim within 120 days of the physician’s confirmation, the real issue is when, through the exercise of reasonable diligence, he should have known the work-relatedness of his injury. Interestingly, rather than just reversing the Appeal Board’s decision, it remanded the matter to the Board with instructions for the Board to remand to the Workers’ Compensation Judge to answer the question of whether the claimant made a reasonable effort to discover the cause of his injury under the applicable facts and circumstances.

In investigating occupational exposure claims, and all claims, it is important to question the claimant as to when he or she first suspected the relatedness of his or her injuries to work exposure. Although mere suspicion does not correlate to knowledge, it assists in determining if the claimant exercised reasonable diligence in determining the work-relatedness of his or her injuries. Additionally, it is important to obtain the claimant’s medical treatment history and medical records. Obtaining these records early on could prove pivotal in developing the employer’s lack of notice defense. As always, a collaborative effort between the claims handler and defense counsel is essential to preserve defenses in order to defeat a claim petition.

*Mike is an associate in our Philadelphia, Pennsylvania office. He can be reached at 215.575.2868 or



Defense Digest, Vol. 24, No. 4, December 2018. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin 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. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2018 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact