Fried, Kane, Walters, Zuschlag and Grochmal 625 Stanwix Street, Suite 1404
Pittsburgh, PA 15222
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THE COMMONWEALTH COURT APPLIES A TOUGH NOTICE STANDARD IN BARRING CLAIM

See:Allegheny Ludlum Corporation v. WCAB (Holmes), 998 A.2d 1030 (Pa. Cmwlth. April 22, 2010); Reargument Denied at ________ A.2d. _________ (Pa. Cmwlth. June 14, 2010); Opinion published at _______ A.2d _______ (Pa. Cmwlth. July 9, 2010).

The WCJ granted Claimant’s Claim Petition finding that Claimant sustained a work related injury consisting of recurring Morton’s Neuroma in her left foot. The parties had presented contrary medical evidence as to causation of the Morton’s Neuroma. The WCJ credited Claimant’s medical experts and explained this credibility determination noting it was consistent with “Claimant’s credible testimony that wearing the metatarsal boot at work caused her left foot to become symptomatic.” The WCJ further found that Claimant satisfied her burden of proving that she gave notice of her injury to the employer within 120 days of when she should reasonably have known of the relationship between her left foot condition and her employment and that there is no evidence of record which would establish that Claimant was aware of a medical opinion connecting her left foot condition and her employment prior to the date that she filed the Claim Petition.

The court initially reviewed the law regarding notice. §311 of the Workers’ Compensation Act provides that “generally, an employer will not be obligated to pay workers’ compensation benefits unless a Claimant or his representative gives notice of the work related injury to the employer within 120 days of the occurrence of the injury. 77 P.S. §631.

However, in the case of an injury resulting from ionizing radiation or any other cause in which the nature of the injury or it’s relationship to the employment is not known to the employee, the time for giving notice 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 it’s possible relationship to his employment. (Id.).

A Claimant has the burden of proving that she satisfied the requirements of §311. See: U.S. Airways v. WCAB (Panyko), 779 A.2d 1233 (Pa. Cmwlth.) where the court explained that the Claimant has the burden of establishing that the employer was given notice of the injury. “Whether a Claimant has complied with the notice requirements is a question of fact for the WCJ.” (Id.). As always, a finding must be supported by substantial evidence. Sell v. WCAB (NLP Engineering), 771 A.2d 1246 (Pa. 2001). However, the reasonable diligence mentioned in §311 is an objective rather than a subjective finding. (Id.). The elements of knowledge a Claimant must possess in order tor trigger the running of the notice period are: (1) knowledge or constructive knowledge; (2) of disability; (3) which exists; (4) which results from an occupational injury; and (5) which has a possible relationship to the employment. Consolidation Coal Co. v. WCAB (Mountain), 407 A.2d (Pa. Cmwlth. 1979). See also: Bailey v. WCAB (Pittsburgh Tubco), 508 A.2d 393 (Pa. Cmwlth. 1986) stating that the elements set out in Consolidation Coal apply equally to injury cases and are not limited to occupational disease cases.

In the instant case, the WCJ found that there was no medical opinion connecting Claimant’s left foot condition to her work duties prior to the date she filed the Claim Petition. However, this was incorrect and clearly erroneous where the record contained a report dated November 14, 2004, one month prior to the date of the filing of the Claim Petition, in which one of Claimant’s physicians opines that her working conditions caused her injury. Claimant gave notice of her injury on 2/17/04 by letter from her counsel to the employer. Thus, the court reasoned “logically, in order to give notice to her employer, Claimant must have known of the possible connection between her injury and her work for one cannot give notice of what one does not know. The Commonwealth Court reiterated the rule that where a Claimant alleges a cumulative injury caused by the Claimant’s working conditions, the 120 day period begins to run on the last date of aggravation which will normally be last date of work. In this case, Claimant’s last date of work was June 10, 2003. The court noted the only evidence in the record indicating how Claimant might have become aware of the possible connection between her work and injury after such date was Claimant’s statement that her treating podiatrist told her in June, 2003 she needed to get another job. Claimant provided no other evidence when she knew or should have known of the possible connection between her work and her injury prior to the time she gave notice to the employer.

Moreover, the court further explained that there is substantial evidence in the record to indicate that a person in Claimant’s position exercising reasonable diligence should have known of a possible connection between Claimant’s injury and her work. This is where Claimant explicitly acknowledged that her pain was worse at work than at home and that she noticed a connection between wearing the metatarsal boot and her symptoms. The court also distinguished the Sell case where in the instant case Claimant obviously knew she had a left foot injury and Sell dealt with an employee suffering from emphysema due to formaldehyde exposure.

Accordingly, the Court held that the Judge’s finding that Claimant gave notice of her injury to the employer within 120 days of when she should reasonably had known that her left foot condition was related to employment was not supported by substantial evidence in the record. Thus, Claimant failed to adduce sufficient evidence to show she complied with the notice requirements of §311. Where Claimant’s last date of work was June 10, 2003 and Claimant did not given notice until February 17, 2004, the notice was untimely and she was deemed barred from receiving benefits pursuant to §311. The Court reversed the Order of the Board and WCJ.

Practice pointer: Claims Adjuster should continue to carefully review claims to determine whether notice has been established. For a cumulative trauma injury, Claimant will generally have 120 days from his or her last date of employment to provide notice. Although there was no medical report relating Claimant’s neuroma to her employment issued until 2004, the Court deemed from Claimant’s testimony, common sense and the fact that she gave notice prior to such date, that she should have known of the causal connection. Accordingly, the Court applied a tough notice standard in denying this claim.