Proper and Timely Notice of a Work-Related Injury in the "old" injury versus "new" injury claim

The Proper and Timely Notice of a Work-Related Injury, in the context of the "old" injury versus "new" injury analysis. 

The Pennsylvania Workers' Compensation Act requires an injured employee to provide notice of the work injury to the Employer.

This notice of injury must inform the employer that:
a certain employee,
received an injury,
described in ordinary language,
occurring in the course of his/her employment,
on or about a specific time,
at or near a place specified.
See: Section 312 language.

The notice of injury may be given to the immediate or other superior of the employee, to the employer or to any agent of the employer.

Actual knowledge of the occurrence of the injury by the employer (or its agents) is "notice" of injury imputed to the Employer. See: Section 313 language.

The time parameters for notice of injury are discussed at Section 311.
The employee must provide notice to the employer within 21 days after the injury.
No compensation shall be due until notice is given.
If notice is not given within 120 days after the occurrence of the injury, no compensation shall be allowed. This is a rather harsh rule, but its effect is somewhat mitigated by the following exception ...

... and in cases where the nature of the injury or its relationship to the employment is not known to the employee ...

in this circumstance, the time for notice does not begin to run until the employee knows of the existence of the injury and its possible relationship to his/her employment.

The employee must exercise reasonable diligence to learn of the existence of an injury and its possible relationship to his/her employment. What is reasonable?

This later category -  the situations where the occurrence of an injury or its possible relationship to one's employment is not known - may raise an interesting question of credibility  -
Exactly when did the employee learn these facts?
When did a physician tell Employee that he/she has a work-related injury?
How much later did the Employee inform the Employer?
(this is one of the most common factual scenarios).

NOTE: The question of the proper and timely notice of injury by the Employee to the Employee is a necessary finding of fact, to be made by the Worker's Compensation Judge, based upon legally competent and credible evidence. This issue is typically decided on a case-by-case basis. Specific facts are decisive in the finding of this necessary element of the proof for a compensable work injury.

The analysis of the presence/absence of proper and timely notice of injury is further complicated when two possible injuries or two possible causes are implicated. An appeal of a claim denial reviewed and addressed these notice issues at:
 Gahring v. WCAB (R and R Builders and Stoudt's Brewing Company), No. 534 C.D. 2015, a decision of a panel of the Commonwealth Court of Pennsylvania authored by Judge Leavitt on November 23, 2105.

Factual and Procedural Background

In this type of notice dispute, a careful review of the facts is necessary.

In 1997 Employee sustained a work-related lower back injury with R and R Builders (Employer #1).
The work injury was described as a disc herniation at L3-4 and L4-5 with chronic lower back pain. This condition required surgery.
In 2002 Employer #1 entered into a C&R lump sum settlement for future indemnity wage loss benefits. Employer #1 remained responsible for future reasonable and necessary work-related medical expenses.  

In 2010 Employee began to work with Stoudt's Brewing Company (Employer #2).
In 2011 he began to experience increased back pain.
On November 17, 2012 Employee underwent surgery.
On January 24, 2013 Employee was released to return to work with physical restrictions by his physician.  Employer #2 could not accommodate these physical restrictions. Employee was terminated by Employer #2. Employee received Unemployment Compensation benefits.

On February 6, 2013 Employee filed a Penalty petition against Employer #1 for non-payment of medical expenses alleged to be treatment of the 1997 work injury.

On March 11, 2013, at the first hearing, Employer #1 said it would file to join Employer #2 to the litigation of the responsibility for the medical expenses. The joinder petition alleged the medical expenses were solely related to the employment with Employer #2.

On March 19, 2013, Employee filed two Claim petitions:
1. against Employer #1 for payment of the 2012 surgical expenses.
2. against Employer #2 for a work injury suffered in April 2012, when he was burned on his left elbow. * (not a claim petition for the aggravation of a pre-existing low back condition?).

WCJ Decision

A. Left Elbow Injury Claim Petition against Employer #2 was granted. Employee supervisor witnessed this accident. This was notice to the employer.
A.1. Employee was released to return to work. He did return with another employer. His benefits were suspended.

B. Employer #1 Joinder Petition was considered a "claim petition" against Employer #2.
B.1.  Employee medical evidence was credible to establish a work-related aggravation of Employee's pre-existing low back condition while working with Employer #2.
B.2. BUT Employee failed to give Employer #2 notice of this aggravation injury withing 120 days from his last day of employment with Employer #2.
B.3. the Joinder/Claim petition against Employer #2 was denied as barred by the Section 311 notice provisions. 

Evidence regarding notice to Employer #2

Employee testified.
Employee physician testified regarding the date and cause of Employee's work injury.
Employer's supervisor testified.
Employer's office manager testified.

Employee testified he treated for ongoing back pain with his family doctor since 2002.
At a February 2012 office visit, Doctor Oliveri diagnosed Employee with sacroiliitis related to his 1997 work injury.

In October 2012 Employee's work hours increased at Employer #2 when another worker left.
Employee said "it (my back) started hurting mid-October through our busy season. (Carr, his supervisor) would keep asking me what was wrong with me and i just told him that my back was really bothering me". slip opinion page 5.

Employer #2 supervisor Carr testified Employee complained of back pain on a number of occasions. He confirmed Employee told him the additional work hours were making his back worse.

Carr made notes of the days when Employee's back pain caused him to miss time from work. He did not give these notes to the office manager, rather he told her that Employee's back pain was worsening and Employee needed surgery. A work comp injury report was not prepared.

Dr. Oliveri testified at his June 2013 deposition and opined that Employee's work at Employer #2 aggravated his post surgical condition and caused the sacroiliac condition which was addressed in the November 2012 surgery.

 He explained the bone for the 2002 spinal fusion procedure (to treat the 1997 work injury) was harvested from the iliac joint, but Employee did not experience symptoms in this area until the 2012 work duties. The Employer #2 work duties aggravated the sacroiliac condition, which had its origins in the 1997 work injury.

... from all of this testimony, the WCJ found the date of the work-related aggravation injury was the last day of work, November 10, 2012.

Employer #2 learned there may have been an aggravation injury as a result of its work duties at the April 2013 hearing, more that 120 days from the "date of injury". This was not timely notice to Employer #2.

WCAB Affirmed, The Employee's statements to Employer #2 supervisor were not sufficient to place them on notice that Employee may have a work-related injury.

Commonwealth Court reversed and remanded the Claim petition Denial.

The Commonwealth Court reviewed the general rules for proper and timely notice of injury to an employer, as per Section 311. Notice is required. Notice is a necessary element of the claimant burden of proof.

In an aggravation or cumulative trauma injury, " the last day of employment is the critical date of injury for purposes of determining timely notice". citing: City of Philadelphia v WCAB (Williams) (Pa. 2004).
However, the claimant must have knowledge that his injury is work-related. Section 311 states that the time for giving notice does not begin to run until the employee knows that his injury is work-related.

The Pennsylvania Supreme Court decision in Gentex Corporation v WCAB (Morack) (Pa. 2011) was reviewed for its precedential value. The worker experienced pain and swelling in her hands with increased work hours. She informed her supervisor she could no longer tolerate this pain and left work. She applied for sort-term disability benefits noting her swollen hands were due to her non-work high blood pressure and fibromyalgia.

About one month later, her physician diagnosed tendonitis and carpal tunnel syndrome as a result of her work duties.She then informed the employer of this work relationship. The Supreme Court concluded this worker satisfied the requirements for timely notice of injury to the employer.
Notice of injury may occur over collective communications - verbal statement, telephone calls, etc.

The worker does not need to state with certainty that the injury is work-related, as long as the employer is informed of the possibility it is work-related.  Gentex at page 536.

The worker statements on the STD documents was not fatal to her subsequent work comp claim.

A result similar to the Gentex decision was reported at Morris v. WCAB (Ball Corp.) (Pa. Cmwlth. 2015). Morris told his supervisor that he was beaten down and hurting. He had problems with his back, hands and legs, "because of all of the hours I'm working". This was sufficient notice.

HERE- the Employee statements to his supervisor Carr, that increased back symptoms followed his increased work hours, was sufficient to inform Employer #2 of the possibility that this 2012 back pain was work-related.

[QUERY: If the employee statements to his supervisor were not sufficient to put the employer on notice of the possibility of a work-relationship of his increased back symptoms, then the focus would be upon the date when claimant knew of a possible work-relationship.

Was there a time before the June 2013 deposition of Dr. Oliveri that claimant should have known through the exercise of reasonable diligence that his 2012 increased back symptoms were related, in some fashion, to his 2012 increased work hours??? This is another argument for another day. ]

Both Carr and Employee believed his back problems were related to the original 1997 work injury, UNTIL they learned otherwise from Dr. Oliveri's opinions regarding an aggravation-type of injury.

Similar to Gentex, this Employee's mistaken belief was not fatal to his work comp claim.
The case was remanded for a calculation of the benefits payable by Employer #2 for an aggravation-type injury.

PRACTICE POINTERS:

1.   Notice of the possibility of a work-relationship of a worker's complaints, is a minimal threshold.
In the training of supervisory personnel regarding the reporting of work injuries, Employer's should emphasize the necessity to record all information and make it available for further review by appropriate Insurer, HR or legal departments. Just as the courts do not require the worker to properly diagnose their complaints, we should not require supervisory personnel to make these judgments.

2.   NOTE the above-cited Section 312 requirements for proper notice are rather stringent. The "leniency" for notice requirements arises in the situation described in Section 311,  where "the nature of injury or its possible work relationship is not known by the employee".

Carefully review the medical records and worker statements to determine if there is any evidence that the employee knew or should have known of the existence of a work-relationship, through the exercise of reasonable diligence. 

This evidence may not result in a claim petition denial based upon an untimely notice argument, BUT it may raise a question as to the credibility of Claimant's version of events... and that question of credibility may arise in other areas of the claim, so as to impact the overall decision.

3.   The "OLD" injury versus "NEW" injury case assessment is impacted by the existence of a prior injury Compromise and Release settlement of indemnity wage loss benefits. A Claimant will have only one avenue for future indemnity benefits - that is, a claim for the NEW injury.

Consider the C&R where both indemnity and future medical expense liability are settled. In that context, the only available remedy for additional work comp benefits is the successful litigation of the NEW injury claim.

QUERY: where the claimant has "been through the system before", should we hold that claimant to be more familiar with the notice requirements?
In my opinion, this can be another element of the credibility assessment of claimant testimony.