Dissenting Opinion by
Judge Doyle:I respectfully dissent because I believe Fortely v. Workmen's Compensation Appeal Board (Jones & Laughlin Steel Corp. (Buckeye)), 117 Pa. Commonwealth Ct. 356, 543 A.2d 1248 (1988), is controlling in this case and compels a contrary result.
In Fortely, although there was no actual testimony presented to the referee, the claimant argued in her appeal to this Court that she was prepared to offer medical evidence that decedent had become disabled within three hundred weeks of his last employment and that he had died within three hundred weeks of that disability. At the same time she conceded, however, that his death would have been more than three hundred weeks subsequent to his last employment. In rejecting the claimants argument, Judge Palladino articulated the reasoning of this Court as follows:
To begin our analysis, we note that the Occupational Disease Act contains a limitation similar to the one found in the Workmens Compensation Act. Section 301(c) of the Occupational Disease Act provides:
Wherever compensable disability or death is mentioned as a cause for compensation under this act, it shall mean only compensablé disability or death resulting from occupational disease and occurring within four years after the date of his last employment in such occupation or industry.
*17777 P.S. §1401(c).
The Pennsylvania Superior Court has held that the language of Section 301(c) of the Occupational Disease Act stating that ‘[w]herever death is mentioned as a cause for compensation. . . .’ refers to cases where no claim is made during the employees lifetime for compensation for disability. Toffalori v. Donatelli Granite Company, 157 Pa. Superior Ct. 311, 43 A.2d 584 (1945). The Court in Toffalori determined that where the first claim is filed after the employees death, death is the cause for compensation. Thus, if the employee dies more than three years5 after the last date of employment, the claim is time barred. Toffalori creates an exception to this general rule where a claim has been filed by the employee during his lifetime. In this type of case, the cause for compensation is disability such that a widows claim will be construed to be a continuation of the benefits already awarded to the employee. See also Duffy v. City of Scranton/Fire Department, 112 Pa. Commonwealth Ct. 537, 535 A.2d 756 (1988) (benefits awarded under Toffalori exception).
We declined to extend the Toffalori exception to a case where a widow was seeking death benefits under the Occupational Disease Act more than fifteen years after the date of her husbands last exposure. Kilvady v. United States Steel Corporation, 90 Pa. Commonwealth Ct. 586, 496 A.2d 116 (1985). Benefits were denied in Kilvady because no disability claim had been filed by her husband within the statutory period.
The reasoning developed in the occupational disease cases persuades us that Petitioners claim *178for death benefits is likewise barred by the 300 week limitation in the Workmens Compensation Act because Decedent’s death occurred outside that statutory period. We cannot construe Petitioner’s claim for death benefits as a continuation of disability benefits where Decedent did not file a claim during his lifetime. (Emphasis added in part and footnote omitted.)
Id. at 360-61, 543 A.2d at 1248.
Because no claim for disability benefits was filed in the case sub judice, the result reached by the majority hére is directly contrary to our holding in Fortely. Moreover, it is also directly contrary to the rationale in Kilvady where this Court held that Section 301(c) of The Pennsylvania Occupational Disease Act, (OD Act) Act of June 21, 1939, P.L. 566, as amended, 77 P.S. § 1401(c), which is the twin provision of Section 301(c)(2) of The Pennsylvania Workmens Compensation Act (WC Act), Act of June 2, 1915, P.L. 736, as amended, 77 PS. §411, is a statute of repose, and we distinguish other sections of the OD Act (i.e., Sections 311, 315, 77 PS. §1411, 1415 respectively) where the remedy only, and not the substantive rights, are dealt with. We stated in Kilvady:
[T]he distinction was explained by Judge Wright in Moore v. Dodge Steel Co., 206 Pa. Superior Ct. 242, 213 A.2d 130 (1965) as the difference between the right to compensation under Section 301(c) and the time within which that right to compensation must be asserted under Section 315. Consequently, inasmuch as the occupational disease compensation system is a creation of the legislature, we cannot create a new right thereunder not provided by the legislature and, except for situations such as that in Toffalori, we must defer to the legislative determination that *179there can be no right to compensation where death from an occupational disease does not occur within four years after the date of the employees last exposure. Gray. Section 301(c) must be interpreted, therefore, as a statute of repose and any change to the contrary must be left to the legislature. (Emphasis in original.)
Kilvady, 90 Pa. Commonwealth Ct. at 592, 496 A.2d at 119-120.
The rejection of the contrary view can be clearly understood by reference to Judge Kalishs dissent in Kilvady when he wrote, “[t]o hold otherwise [than the dissenting viewpoint] would convert section 301(c) into a statute of repose, contrary to the intent of the legislature.” Id. at 595, 496 A.2d at 121. The majority in Kilvady held, of course, that it was the intent of the legislature to do just that. Hence, the result reached by the majority in this case will have the effect of interpreting the two acts differently, and contrary to one another, an undesirable result in my opinion. The insidious nature of an occupational disease is just as insidious under the OD Act as it is under the WC Act, and the two acts should be construed in a similar fashion.