Opinion
No. 1407 C.D. 2014
07-10-2015
Bernadette Gruska, Petitioner v. Workers' Compensation Appeal Board (Giant Food Stores, Inc.), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Petitioner, Bernadette Gruska, petitions for review of the final order of the Workers' Compensation Appeal Board affirming the decision of the workers' compensation judge (WCJ) denying her claim petition on the basis that she failed to establish that she gave her employer proper notice of her on-the-job injury within 120 days of the injury as required by Section 311 of the Pennsylvania Workers' Compensation Act (the Act). We affirm.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 631. In relevant part, Section 311 provides:
Unless the employer shall have knowledge of the occurrence of the injury, or unless the employe or someone in his behalf, . . . shall give notice thereof to the employer within twenty-one days after the injury, no compensation shall be due until such notice be given, and, unless such notice be given within one hundred and twenty days after the occurrence of the injury, no compensation shall be allowed.
On December 28, 2011, Petitioner filed a claim petition alleging that she suffered a spinal injury in the nature of a herniated nucleus pulposus of the L4-5 (HNP L4-5) with compression of the left L5 nerve root causing left radiculopathy as a result of performing her work duties as a baker with Giant Foods (Employer). The petition alleged partial disability from November 3, 2010 to November 28, 2010 and full disability from November 29, 2010.
Petitioner testified at a deposition on April 16, 2012 and at a hearing before the WCJ on October 11, 2012. Petitioner testified that she worked as a baker for Employer and was required to lift and carry boxes weighing between 10 and 50 pounds. She stated that several times she told her supervisor, Thomas Quigley, that the boxes were too heavy for her and that he would sometimes help her out or send another employee to help her. On October 27, 2011, Petitioner began suffering from low back pain and tingling in her right leg during her shift. Later that night, Petitioner went to Crozer Chester Medical Center for treatment. Petitioner informed the hospital staff that her pain was caused by lifting heavy boxes at work. Reproduced Record (R.R.) at 47a-48a. Petitioner was discharged from the hospital with a prescription for Percocet and a note excusing her from work on October 28, 2010. R.R. at 51a. Petitioner stated that she gave the Chester Crozer excuse note to Quigley and explained to him why she went to the hospital and why she was out of work. R.R. at 8a-10a. Petitioner testified that on November 3, 2010, she gave Quigley a note from her family physician, Dr. Leemu Kerkula, stating that she had pain in her left foot. Petitioner continued to work until she had surgery on her back on December 6, 2010.
Quigley is employed as an assistant store manager by Employer and he is responsible for day-to-day operations including staffing, product ordering, sales, merchandising, labor control and expenses. R.R. at 205a. Quigley stated that, if an employee reports an on-the-job injury to him he is responsible for completing an incident form. Id. at 205a-06a. Quigley testified that Petitioner never advised him that her back injury was work-related, and that consequently he never completed an incident form. Id. at 206a. He testified that Petitioner gave him a note from Dr. Kerkula, but the note did not indicate that her injury was work-related. Id. Quigley also stated that Petitioner submitted paperwork under the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601-2654, signed by Dr. Jeffrey Rihn, but that paperwork did not indicate that her injury was work-related. Id. Quigley denied ever receiving any medical documentation indicating that Petitioner's condition resulted from a work-related injury. Id. at 206a-07a.
The WCJ found that Petitioner's testimony regarding her symptoms was credible. WCJ's Finding of Fact (F.F.) No. 11. However, the WCJ concluded that Petitioner's testimony regarding notification to Employer of her injury was not credible. Id. The WCJ noted that Petitioner testified that she advised Quigley that she was having difficulty performing her duties because of back pain, but failed to testify that she reported a specific incident or that "her inability to work was caused by any relationship to her symptoms and her employment duties." Id. The WCJ credited Quigley's testimony that Petitioner never specifically informed him that she suffered an injury as a direct result of performing her job duties. F.F. No. 13. The WCJ also credited Quigley's testimony that Petitioner failed to provide any medical note or diagnosis that would have lead him to believe that her condition was work-related. Id. The WCJ noted that Petitioner filed for short-term disability and the application for benefits did not attribute her disability to a work-related injury. Id. The WCJ nonetheless concluded that Petitioner had established that she suffered a work-related injury and a period of disability. WCJ's Conclusions of Law No. 2 However, the WCJ denied the award of benefits to Petitioner because she failed to establish that she gave proper notice to Employer that her disability was work-related within 120 days of the injury or incident. WCJ's Conclusions of Law No. 3.
Petitioner appealed to the Board which affirmed the WCJ. The Board rejected Petitioner's arguments that the WCJ erred in finding that she failed to give timely and proper notice of her injury to Employer and that the WCJ capriciously disregarded evidence from Chester Crozer stating that her injury was job-related. The Board held that the WCJ did not err because it was within his province to credit Quigley's testimony regarding notice and to reject Petitioner's testimony. The Board further held that because the WCJ did consider Petitioner's testimony that she gave the note from Chester Crozer to Quigley, but chose to reject that testimony as not credible, the WCJ did not capriciously disregard the evidence. This appeal followed.
Petitioner argues that the WCJ's decision is not supported by substantial evidence because the medical records from Chester Crozer demonstrate that her injury was work-related. Petitioner asserts that the medical records contradict Quigley's testimony that she failed to inform him that her injury was caused by her work duties and that she did not provide him with the excuse note from Crozer Chester.
In a claim petition proceeding, an employee has the burden of proving all of the elements required for an award of workers' compensation benefits. Inglis House v. Workmen's Comp. Appeal Bd. (Reedy), 634 A.2d 592, 595 (Pa. 1993). The employee has the burden of establishing that the employer was given notice of the injury and receipt of such notice is a prerequisite to receiving compensation. C. Hannah & Sons Constr. v. Workers' Comp. Appeal Bd. (Days), 784 A.2d 860, 864 (Pa. Cmwlth. 2001). The employee must not only inform the employer of an injury but of the fact that the injury is work-related. Gribble v. Workers' Comp. Appeal Bd. (Cambria Cty. Ass'n for the Blind), 692 A.2d 1160, 1162-63 (Pa. Cmwlth. 1997). Whether the employee has complied with the notice requirements of the Act is a question of fact for the WCJ. C. Hannah & Sons Constr., 784 A.2d at 864.
Petitioner's argument is without merit. While Petitioner is correct that the medical records from Chester Crozer (R.R. 47a-48a) state that her injuries were caused by lifting objects at work, the note excusing her from work signed by Dr. Andrzej Swiatecki, M.D. does not provide any such information. There is no evidence of record that Petitioner provided the medical records to Quigley. Petitioner's own testimony was that she gave Quigley the excuse note. Quigley testified that Petitioner provided him with a note from Dr. Kerkula and FMLA paperwork from Dr. Rihn. He denied receiving any documentation that informed him that Petitioner's injury was work-related. The WCJ credited Quigley's testimony regarding what documentation he did and did not receive from Petitioner. Because the WCJ's findings that Petitioner failed to provide proper timely notice to Employer that her injury was work-related are based on the credibility determinations, those findings may not be disturbed on appeal. Leca v. Workers' Comp. Appeal Bd. (Phila. Sch. Dist.), 39 A.3d 631, 634 n.2 (Pa. Cmwlth. 2012).
Accordingly, we affirm.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 10th day of July, 2015, the order of the Workers' Compensation Appeal Board is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge