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The Supreme Court of Pennsylvania addressed the dispute regarding the commencement of the one hundred twenty (120) day notice requirement of §311 in the context of a cumulative trauma or aggravation theory of disability, in City of Philadelphia v. W.C.A.B. (Williams), 204 Pa. Cmmw. LEXIS 1326 (06-21-04).
The Supreme Court affirmed the prior Commonwealth Court decisions which held that the date of injury and date for commencement of the notice provisions for a workplace aggravation, or cumulative trauma type injury would commence with the last date of employment, as that would be the last date of possible "injury." The Supreme Court distinguished prior case decisions which utilized the date of diagnosis as the date of injury and commencement of the notice provisions. The Court noted that prior decisions identifying the date of diagnosis as the date of injury were not aggravation or cumulative trauma type of injury claims.
The decision of the Supreme Court provides a comprehensive review of the factual and legal issues presented in prior claims for an aggravation/cumulative trauma injury. The instant facts reflect employee experienced pain and numbness in both hands and wrists beginning December of 1995, in the course of her duties as clerk/typist/word processor. As the symptoms continued, employee provided notice to her supervisor of her symptoms and her anticipated work absence for treatment of her condition, in January of 1996. Employee continued to work until March 17, 1997 when her symptoms increased, causing her to leave her work duties. She was diagnosed with carpal tunnel syndrome in January 1998. During the claim petition litigation, her physician related her symptoms to the repetitive hand motions required in her employment duties through March 17, 1997. Employer's medical evidence confirmed the medical diagnosis.
Employer's witnesses, the Human Resource Manager and Supervisor testified regarding their knowledge of the onset of employee's complaints in April or May of 1996 and Employee’s failure to specifically inform them of a work relationship of her symptoms until March 17, 1997. The workers' compensation judge awarded temporary total disability benefits as of March 18, 1997. The workers' compensation judge found that claimant was totally disabled as a result of the continuing aggravation of her carpal tunnel syndrome symptoms which she first began to experience in January of 1996. The judge found the date of injury and date of the initial disability were March 17, 1997. The workers' compensation judge also found that employee was aware of her condition in January of 1996 and knew or should have known that her condition was work-related. [Note: Employee’s notice on March 17, 1997 was with 120 days of this date.] However, the judge accepted employee's medical evidence that she was not disabled until March 17, 1997.
The workers' compensation judge, Workers' Compensation Appeal Board and Commonwealth Court relied upon the Zurn Industries 755 A.2d 108 (Pa. Cmwlth. 2000) decision to establish the date of injury as the last date of daily aggravation by the employment duties. Each day of work constitutes a new injury, and employee's last day of work was the same date that she told her supervisors of the work relation of her symptoms. Therefore, her notice of injury was timely.
The employer argued that the one hundred twenty (120) day notice period begins to run when the injured employee knew or reasonably should have known of the nature of the injury and its relationship to employment. [Presumably April or May of 1996.] The employer relied upon the Piad Corp., 761 A.2d 640 (Pa. Cmwlth. 2000) and Leber, 628 A.2d 481 (Pa. Cmwlth. 1993) decisions for the proposition that the one hundred twenty (120) day notice period begins to run as of the date of diagnosis. The Supreme Court rejected this argument, as those prior decisions did not involve an aggravation/cumulative trauma type of injury.
The Supreme Court reviewed the definition of injury and the §311 notice provisions, to find that the duty to provide notice depends to a large extent upon what qualifies as an "injury under the Act." The definition of injury encompasses work-related "aggravations" of existing diseases or conditions. Citing the prior Supreme Court decision in Pawlosky v. W.C.A.B. (Latrobe Brewing Co.), 525 A.2d 1204 (Pa. Cmwlth. 1987) (a Fried, Kane, Walters case), an "injury" includes a work-related aggravation, reactivation or acceleration of a pre-existing disease, even if the underlying disease itself was not caused by a work-related injury. The Supreme Court concluded that the workers' compensation judge found employee's medical evidence was credible regarding the finding that the employee suffered from a daily aggravation of her pre-existing carpal tunnel syndrome, as a result of each day she worked as a clerk/typist/word processor. Therefore, employee's "notice" of the work relationship of her injury on her last day of employment, was sufficient to comply with the §311 notice provisions.
Note: This reasoning is similar to the occupational disease litigation results, which hold that an employee is not "disabled" until they begin to miss time from work, due to their symptoms or medical condition.
Practice Pointers: Instruct all supervisory levels of Employer’s management team, to timely report all knowledge of symptoms "discussed" in the workplace, and to further assess whether there is a work relationship known to the Employee.