Tuesday, September 3, 2013

Is that Notice of a Work-Related Disability... or are you just having a bad day?

Notice of the Work Injury to the Employer
The Pennsylvania Workers' Compensation Act requires the injured employee provide "notice" of the work injury to the employer, in instances where the employer does not have knowledge of the alleged injury.
"Unless the employer shall have knowledge of the occurrence of the injury, or unless the employe or someone in his(her) behalf ... shall give notice thereof to the employer within 21 days after the injury, no compensation shall be due until such notice is given...
and, unless such notice be given within 120 days after the occurrence of the injury, no compensation shall be allowed..." . Section 311, 77 P.S. 631.

Notice of the work-related injury is an essential element of the burden of proof for the injured employee.

At times, a factual issue arises as to the "adequacy" of the employee statement.
Does the employee comment rise to the level of the required "notice" to the Employer?

Section 312 provides further detail of the requisite "notice".

"notice ... shall inform the employer that a certain employee received an injury, described in ordinary language, in the course of employment, on or about a specific time, at or near a  place specified".

Rusko v. WCAB (Pouvoir Co.), No. 273 C.D. 2013, an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Judge Leadbetter on July 19, 2013, addressed the adequacy of notice issue.

Factual and Procedural Background

Employee was a bookkeeper and personal assistant for "the Boss" an Optometrist, from May 2005 to May 4, 2009. In August of 2010, approximately 15 months after her last day of work, she filed a Work Comp Claim Petition.
Her petition alleged she sustained a psychological work injury on May 4, 2009.
Her symptoms consisted of anxiety, stress, depression with physical manifestations of sleeplessness, nausea.

The WCJ granted the parties' request to bifurcate the Claim Petition and separately consider the issue of notice. Bifurcation in this manner allows the parties to avoid the time and expense of litigation (usually medical expert witness costs) where it is possible the claim may be denied, solely on the issue of lack of proper notice of injury.

WCJ Decision
WCJ found Employee testimony to be credible.
However, WCJ found that Employee testimony failed to establish that she gave Employer "timely and proper notice of the alleged work-related injury". slip opinion page 2.

Employee testified that she told the office manager that she could no longer stand working for the Boss.
Employee testimony was that she made the following declaration to the office manager on her last day of employment: "I'm done. This time I'm really done."

WCJ found as a fact and concluded as a matter of law, that Employee's declaration was insufficient to constitute notice of a work-related injury.
On this basis, the Claim Petition was denied.

Commonwealth Court Reasoning
The Court affirmed the WCJ decision.
On appellate review the Court examined the context provided by employee for her statements.
  • She testified she went to the office manager after the Boss requested that she change payroll records, a request she refused.
  • She advised the office manager she was done that day as the Boss made her life a living hell.
  • She complained to the office manager about stress, anxiety and work load during her employment
The WCJ concluded that these background factors did not transform employee's simple pronouncement into "notice" of an alleged work-related psychological injury due to abnormal working conditions ... as there was nothing in her testimony to that effect.

The WCJ determined "... at best, the claimant's statement can be interpreted as her stating to [the office manager] that she was leaving work because she could no longer stand working with [the Boss].

Employee argued that the WCJ failed to take into account, the totality of circumstances, consistent with the decisions reported at Gentex Corp. v. WCAB (Morack) (Pa. 2011) and Kocher's IGA v. WCAB (Dietrich (Pa. Cmwlth. 1999).
Morack allowed for consideration of multiple communications.
Dietrich allowed for notice of the possibility of a work-relationship where employee was not sure.

In review of the WCJ decision, the Court simply stated, "We agree".
Simply giving notice that one can no longer tolerate working with someone or that person creates a stressful work environment, is not the equivalent of giving notice that one's job caused a work-related psychological injury. slip opinion page 4.

Practice Pointers:
1. At the outset of a claim investigation, interview the employer representative to determine is the employee has met the essential elements of establishing a work injury, including proof of:
a. an employment relationship
b. jurisdiction in Pennsylvania
c. injury arising in or related to work
d. disability ... if disability is not obvious...
e. medical expert evidence of disability.

2. Interview employee, at the outset, if employee is not represented by legal counsel.

3. Claim representatives should discuss any legal issues with their defense counsel prior to acceptance or denial of the claim. Assess the strength of employee allegations and the availability of any rebuttal evidence.

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