PENNSYLVANIA WORKERS’ COMPENSATION ACT: REPORTING YOUR INJURY
Pursuant to Section 311 of the Workers’ Compensation Act, you must report your work injury to your employer within 120 days of that injury. There has been much confusion and litigation over what constitutes notice of the injury. Before the Pennsylvania Supreme Court in Gentex Corporation v. WCAB (Morack), 23 A.3d 528 (Pa. 2011), the Courts consistently held that in order to properly put your employer on notice, the employee needed to affirmatively state to a supervisor that he or she suffered an injury and connect the injury to a work activity. It was not enough to simply complain of pain or an injury—the employee needed to make the employer aware that the work caused an injury. However, in Gentex, the Pennsylvania Supreme Court held that an employee can satisfy the notice requirement by “collective communications” consisting of voicing pain complaints while at work. Moreover, the Court specifically held: “A claimant need not state with certainty that the injury is work related, as long as employer is informed of the ‘possibility it was work related’”. Gentex, at 536.
Recently, the Commonwealth Court in Gahring v. WCAB (R and R Builders and Stoudt’s Brewing Company, softened the notice requirement even further than Gentex. In that case, a worker injured his back in 1997 while working and ultimately had surgery to address his condition. He then settled his workers’ compensation case by compromise and release with Employer 1, resolving only the wage loss portion of his claim—leaving Employer 1 responsible for his future work-related medical expenses. In 2010, he took a job as a line cook with a different employer, Employer 2. He then began to experience back pain once again which resulted in a second back surgery in 2012. Three months after this surgery, the injured worker was released to work with restrictions which Employer 2 could not accommodate; he was then terminated from his job.
The injured worker filed a Penalty Petition against Employer 1 arguing that it violated the Workers’ Compensation Act by failing to pay his medical bills related to his 2012 back surgery. The worker at the time thought that his surgery was related to his 1997 work injury. Employer 1 then filed a Joinder Petition against Employer 2, on the theory that his work activities for that employer necessitated the 2012 surgery. A workers’ compensation judge found that the worker proved that he suffered an aggravation of his pre-existing back condition while working for Employer 2. The workers’ treating surgeon opined that the surgery was necessitated because of his work for Employer 2, not his original injury with Employer 1. However, the Judge also found that the injured worker failed to notify Employer 2 within 120 days of the aggravation (last day of work) and therefore determined that the claim was barred by Section 311 of the Workers’ Compensation Act. The Workers’ Compensation Appeal Board affirmed the Judge’s findings and conclusions of law. It reasoned that although the injured worker was telling a supervisor that the overtime hours were making his back hurt, it was not specific enough to put Employer 2 on notice that he was alleging a work injury: benefits were denied.
The injured worker filed an appeal with the Commonwealth Court. That Court reversed the Judge and Appeal Board. The Court noted that Section 311’s 120-day notice requirement does not begin to run until the injured worker has knowledge that the injury is work-related (also known as the discovery rule). To be sure, the injured worker in Gentex had actually filled out an application for short-term disability benefits specifically stating that the condition was not work-related. However, the Supreme Court found this “was not fatal” to the worker’s subsequent claim for workers’ compensation benefits. The Court reasoned that “[c]laimants are not expected to be capable of medical diagnoses….”
The Commonwealth Court in Gahring, quoting partially from Gentex, held: “A claimant need not state with certainty that the injury is work-related, as long as employer is informed of ‘the possibility it was work-related.’” These two cases certainly loosened the notice requirements of Section 311 of the Workers’ Compensation Act. While it is clearly advisable to immediately notify your employer of a potential work-related injury, and get something in writing such as an accident report, a failure to do so within 120 days of the actual event or last day of work might not be fatal. The Courts are now taking the approach of looking at the “totality of the circumstances” as to whether the employer was put on notice of the possibility that a claim might be made under the Workers’ Compensation Act. Therefore, if you have suffered a work related injury but are unsure if you have satisfied the notice requirements, it is crucial that you speak with an experienced Pennsylvania Workers’ Compensation lawyer to determine if you have a viable claim.