Thursday, October 31, 2013

Court abruptly expands "Discovery Rule" for Notice of Injury in Trauma Cases

An injured Employee must provide notice of injury to the Employer within 120 days of the occurrence of the injury. If the Employer does not have actual knowledge of the injury, the injury claim is barred, where the Employee does not provide timely notice of the work injury.

This timeframe for providing notice of injury to the Employer, is extended, in cases resulting from ionizing radiation or any other cause in which the nature of the injury or its relationship to the employment is not known to the employee.

In this circumstance, the time for providing notice of the injury, shall not begin to run until the employee knows , or by the exercise of reasonable diligence should know, of the existence of the injury and its possible relationship to the employment. This is commonly referred to as the "Discovery Rule" of notice.
See: Section 311, 77 P.S. 631.

A dichotomy has existed between traumatic injury claims and occupational disease claims for the standard for notice of injury to the employer. Simply stated, the discovery rule was limited in its application to occupational disease and hearing loss claims.

A Recent Commonwealth Court decision may have unknowingly altered that long-standing analysis!

A&J Builders, Inc. v. WCAB (Verdi), No. 479 C.D. 2013, a published opinion of a panel of the Commonwealth Court, authored by Judge Simpson on October 16, 2013, addressed this "notice" of work-related injury issue.

Factual and Procedural Background
Employee was a commercial drywall carpenter for 33 years. The last 10 years he received employment assignments from the union hall with various employers.

A&J employed him from August 2004 to September 25, 2007.
J.D. Miller employed him for 3 days, until his final work day of October 6, 2008.

He filed a claim petition in June 2009 against J.D. Miller for total disability from repetitive trauma to his right knee. The "date of injury" was October 6, 2008, his last day of work with JDM.

He filed a claim petition on July 10, 2009 against A&J for total disability from repetitive trauma to his right knee. The "date of injury" was September 25, 2007, his last day of work with A&J.
He sought benefits commencing October 6, 2008.

A&J filed Joinder Petitions of other employers of this individual.

Employee Testimony
His work duties included climbing up and down scaffolding, with carrying and installing drywall panels.
In 2004 he had right knee surgery while working with Heartwood Construction.
After surgery, he returned to work without any restrictions and performed his regular job duties.
At this point he was working with A&J.
He said these work duties caused his right knee pain to return.

In 2006 he started treating with Peter Vitanzo, M.D. for right knee pain.
Employee said he was not sure whether there was a relationship between his work duties and his knee pain. His doctor did not tell him there was a relationship. Slip opinion page 3.
[exercise of reasonable diligence?]

When he stopped working with A&J (Sept 25, 2007) he said he always had right knee pain. He told Dr. Vitanzo that squatting, kneeling, going up and down increased his pain. [But apparently Dr. Vitanzo remained silent as to the cause of these pain complaints!?]

He worked with several other employers in the timeframe from September 26, 2007 to October 3, 2008.
The "last" employer was JDM. He performed his usual drywall carpenter duties. By his last day on October 6, 2008 his right knee filled with fluid and was "hard as a rock".

He stopped working for JDM because the job was finished and he was "laid off".
His pain did not go away when he stopped working, rather it worsened.
[Apparently this pain had not "gone away" since 2006!]

Employee testified that he began to treat with Dennis P. McHugh, D.O. for his right knee in January 2009.
On March 31, 2009 his physician informed him "for the first time" that there was a causal connection between his right knee pain and his work duties.

Employee Medical Expert
Dr. McHugh testified of his review of the 2006 records of Dr. V.
Employee complained of flare ups with squatting or bending.
Dr. V. told him it was to be expected given his underlying arthritis.
Dr. V's 2006 notes did not express any further opinion regarding causation.
[... exercise of reasonable diligence...?]

January 2009, Dr. M. diagnosed crepitus in the patellofemoral knee joint.
February 2009 MRI showed advanced arthritis under the knee cap.
March 31, 2009 exam Dr. M. diagnosed "Chronic repetitive work-related chondral wear in the patellofemoral joint of the right knee, which is irreversible".

This was the first time he informed employee that there was a connection between his right knee condition and his work duties. 

Dr. M opined employee was disabled from working as a drywall carpenter due to this condition.
Dr. M opined the work duties with A&J and with JDM both materially aggravated the underlying knee condition. As he worked longer with A&J, he sustained more damage there, compared to his brief employment (3 days) with JDM.

A&J - no medical evidence?

JDM medical expert opined employee has age-related degenerative joint disease of the right knee. He was disabled from work, but this was not related to his job duties. He conceded the knee symptoms were due to chronic repetitive work-related wear in the joint.
He opined the 3 days of work with JDM did not substantially contribute to the right knee arthritis.

WCJ decision:
Employee testimony was credible in its entirety..
Found Employee medical expert credible that A&J work duties materially aggravated the underlying knee condition and caused employee's disability.
Rejected that part where he said JDM work duties also materially aggravated the underlying knee condition.

Rejected Employer medical expert opinion, except for that part where he said JDM duties were not a material aggravation.
***[I never like this "pick and choose" single sentences from medical testimony, either you believe one version of the medical expert analysis or you believe the other!]

Employee met his burden of proof, he was disabled as a result of the work-related material aggravation of his pre-existing degenerative knee condition as a result of his work with A&J.

Appellate Review 
A&J appealed.
WCAB affirmed this defective WCJ decision.
A&J appealed to the Commonwealth Court. The court also affirmed this defective WCJ decision.

Commonwealth Court Reasoning:
Employer A&J argued:
 (1) Notice Issue. Employee did not provide timely notice of injury with 120 days of his last employment. As the last day of employment is the "date of injury" in a repetitive/cumulative trauma-type injury, his claim must fail. Employee failed to exercise reasonable diligence;

(2) Liability Issue. It was an error to not assign liability to the last-in-time employer (JDM) in a repetitive/cumulative trauma-type injury.

Notice Issue
Court reviewed language at section 311. Court read the "or any other cause in which the nature of the injury or its relationship to the employment is not known to the employee" phrase.
Court concluded this phrase could apply to this traumatic injury.

Court cited Pa Supreme Court case in Sell, in support of its conclusion.
Sell was an occupational disease claim!
Court rejected the logic of Allegheny Ludlum case, a trauma case where notice was not timely.

Court repeats"credible" employee testimony, that he did not know of work-relationship of his knee condition to work duties until doctor "told" him on March 31, 2009. Slip opinion page 13.

Employer's "reasonable diligence" argument is rejected. Employer argued employee "knew or should have known" of a possible work-relationship as early as 2006, when he went to a medical specialist, an orthopedic surgeon, and continued to treat for years.
This constructive knowledge argument was rejected.
[do we actually believe that patients and medical professionals do not discuss what caused them to come in for treatment of pain symptoms, particularly in a surgically repaired knee?].

Liability Issue
Why is JMD not responsible for benefits?
The general rule is that, where an  intervening incident materially contributes to a renewed physical disability, the worker has suffered as new injury or aggravation. S. Abington Twp. v. WCAB (Becker) 831 A.2d 175 (Pa. Cmwlth. 2003). An aggravation of a preexisting condition is deemed a new injury, rendering the employer at the time of aggravation responsible for benefit payment.

Why is there no finding of a "new injury" with the last JMD employment?
To the extent Employee's medical expert determined that Employee's work at both A&J and JDM materially aggravated the underlying knee condition, the WCJ rejected the portion of testimony that the brief employment at JDM was a a material aggravation, or new injury.
The WCJ is free to accept or reject the testimony of any witness, in whole or in part, blah, blah, blah.
Decision affirmed.

The existing Case Law regarding the Discovery Rule and Trauma Injury

The extension of a "discovery rule" for notice of a work-related trauma injury was rejected in:

1976 WCAB v. Niemann
1977 WCAB v. Griffith
1986 Young v. WCAB (Jones & Laughlin Steel Corp.) [MDS case]
1990 Eddy v. WCAB [Fried Kane case]
1990 Bolitch v. WCAB
1991 Berisford v. WCAB
1993 Arthrell v. WCAB

In my opinion the Court affirmed the award of benefits, based upon an incorrect reading of the existing caselaw regarding the notice requirement for a work-related traumatic injury.
Although the WCJ it the final arbiter of credibility and weight of the evidence, this is not a credibility issue.

As a matter of law, it is obvious there is no testimony or evidence that employee provided notice to A&J of his traumatic injury within 120 days of his last date of aggravation of his pre-existing condition.

Accordingly, this claim petition should properly be dismissed.

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