Opinion
No. 334 C.D. 2013
12-17-2013
Jennifer Miller, Petitioner v. Workers' Compensation Appeal Board (HCR Manor Care/Heartland Employment Services, LLC #5), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Jennifer Miller (Claimant) petitions for review from an order of the Workers' Compensation Appeal Board (Board) affirming a decision of a Workers' Compensation Judge (WCJ) that denied her claim petition on the grounds that Claimant had failed to provide her employer, HCR Manor Care/Heartland Employment Services, LLC #5 (Employer), with timely notice of her work-related injury. For the reasons described below, we reverse and remand.
In 2009, Claimant began working at Employer, a nursing home facility, as an occupational therapist. (Transcript of Dec. 8, 2010 Hearing (12/8/10 H.T.) at 7, Reproduced Record (R.R.) at 24a.) Prior to working at Employer, Claimant had approximately ten years of experience as an occupational therapist and she possessed a bachelor's and master's degrees in occupational therapy, with a certification in sensory processing. (WCJ Decision, Finding of Fact (F.F.) ¶3, R.R. at 6a-7a; 12/8/10 H.T. at 32, R.R. at 49a; Transcript of Feb. 3, 2011 Hearing (2/3/11 H.T.) at 5, R.R. at 64a.)
At the time Claimant was hired, she completed infection control training for Employer and received a certificate for completion of the training. (F.F. ¶3, R.R. at 7a; 2/3/11 H.T. at 10-11, R.R. at 69a-70a.) When treating sick patients, Claimant always wore protective gloves and, at times, a protective gown. (F.F. ¶3, R.R. at 7a; 2/3/11 H.T. at 11-14, R.R. at 70a-73a.)
In early July 2009, Claimant found out she was approximately five weeks pregnant. (F.F. ¶3, R.R. at 7a; 12/8/10 H.T. at 10, R.R. at 27a.) That same month, Claimant began treating several residents who were suffering from gastrointestinal issues. (F.F. ¶3, R.R. at 7a; 12/8/10 H.T. at 10-11, R.R. at 27a-28a.) On August 8, 2009, Claimant began experiencing bloody diarrhea and dehydration. (F.F. ¶3, R.R. at 7a; 12/8/10 H.T. at 13, 16, R.R. at 30a, 33a; 2/3/11 H.T. at 19, R.R. at 78a.) Claimant's gastroenterologist prescribed her prednisone to treat her symptoms. (F.F. ¶3, R.R. at 7a; 12/8/10 H.T. at 14-15, R.R. at 31a-32a.) Prior to experiencing these symptoms, Claimant had suffered from proctitis, which was characterized by constipation and infrequent bowel movements, and thus diarrhea was a new experience for her. (F.F. ¶5, R.R. at 8a; 12/8/10 H.T. at 13-14, R.R. at 30a-31a.)
Claimant's symptoms progressively grew worse during August and she was admitted to the hospital on August 29, 2009 and stayed through September 19, 2009. (F.F. ¶3, at 7a; 12/8/10 H.T. at 16-18, R.R. at 33a-35a.) Tests showed the presence of shiga toxin in her system, and Claimant's doctors explained to her that she may have been exposed to shiga toxin, shigella and E. coli and that shiga toxin and E. coli are related. (F.F. ¶3, at 7a-8a; 12/8/10 H.T. at 19, R.R. at 36a; 2/3/11 H.T. at 23-25, 29, R.R. at 82a-84a, 88a.) Claimant's doctors also explained that shiga toxin can enter the body through exposure to fecal matter. (F.F. ¶3, R.R. at 7a; 2/3/11 H.T. at 27-29, R.R. at 86a-88a.)
Claimant returned to work briefly at the end of October 2009, but she was readmitted to the hospital on several occasions in November and December 2009 because of extensive vaginal bleeding. (12/8/10 H.T. at 23-26, R.R. at 40a-43a.) Claimant's baby was born premature on December 11, 2009, and over the next six months Claimant had various procedures, including a colostomy on her right side, a fistula on her left side, a j-pouch surgery, and when that procedure failed, a loop ileostomy. (12/8/10 H.T. at 26-31, R.R. at 43a-48a.). On September 3, 2010, Claimant's doctors advised her that she could return to work with limitations on her physical exertion, and, as of the date of the hearings, Claimant was self-employed as a pediatric occupational therapist. (12/8/10 H.T. at 31-34, R.R. at 48a-51a.)
On October 25, 2010, Claimant filed a Claim Petition with the Bureau of Workers' Compensation. (Oct. 25, 2010 Claim Petition.) Hearings were held before a WCJ on December 8, 2010 and February 3, 2011. The parties agreed to bifurcate the issue of whether Claimant provided adequate notice within 120 days of the injury as required by Sections 311 and 312 the Workers' Compensation Act (Act). (2/3/11 H.T. at 4, R.R. at 63a.) Claimant testified that in August 2009 she began experiencing dehydration and diarrhea, and that these symptoms were similar to those experienced by several residents with whom she had recently started working. (12/8/10 H.T. at 13, R.R. at 30a; 2/3/11 H.T. at 30, R.R. at 89a.) Claimant testified that she had a realization during her first hospital stay in August and September 2009 that her symptoms were the same as one of these residents, who Claimant knew to have an E. coli infection. (2/3/11 H.T. at 30-31, R.R. at 89a-90a.)
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 631, 632. --------
Claimant testified that she notified her supervisor, Lori Bohenik, in August 2009 prior to her hospitalization that she was experiencing bloody diarrhea and dehydration and that she had been prescribed prednisone. (12/8/10 H.T. at 15-16, R.R. at 32a-33a.). Claimant testified that later, while in the hospital, she informed Bohenik that she was ill and experiencing symptoms, and informed her that tests revealed she had been exposed to shiga toxin. (12/8/10 H.T. at 18-19, R.R. at 35a-36a; 2/3/11 H.T. at 35, R.R. at 91a.) Claimant testified that, when she returned to work in October 2009, she continued discussing her medical treatment with Bohenik. (12/8/10 H.T. at 22, R.R. at 39a.)
In October 2010, Claimant received a letter from her doctor, Steven Farbowitz, which informed her that her exposure to shiga toxin was related to her employment. (F.F. ¶6, R.R. at 9a; 2/3/11 H.T. at 26, 34-35, R.R. at 85a, 90a-91a.) The Claim Petition was filed shortly after the receipt of this letter on October 25, 2010. In her Claim Petition, Claimant listed her date of injury as August 29, 2009 and the reason for her injury as "[e]xpos[ure] to shiga toxin at work." (Claim Petition at 1.) Claimant indicated in the Claim Petition that she provided notice to Employer after she was admitted to the hospital on August 29, 2009 when she called Bohenik to advise her that she had been hospitalized for a shiga toxin infection. (Id. at 1.)
On April 20, 2011, the WCJ issued a decision finding that Claimant had failed to sustain her burden in proving that she provided notice to Employer within 120 days of when Claimant should have been aware of the presence of a work-related injury. (WCJ Decision, Conclusion of Law ¶2, R.R. at 10a.) The WCJ found Claimant's testimony to be credible in part. (F.F. ¶5, R.R. at 8a.) To the extent Claimant's testimony evidenced a failure to appreciate the connection between her injury and her treatment of infected residents, the WCJ found this testimony not credible for the following reasons:
1) [C]laimant had 10 years of experience in the medical field prior to her employment with [Employer] which necessarily implies a more sophisticated knowledge regarding how infectious diseases are spread from [residents] to healthcare providers;
2) [C]laimant acknowledged that she was vigilant about wearing gloves and, at times, protective gowns, to protect herself from contracting infections from the [residents] she treated;
3) [F]or the first time in her life, [C]laimant suffered diarrhea on August 8, 2009. [C]laimant explained that she endured a lifetime of constipation because she suffered from a condition called proctitis. The spontaneous development of diarrhea, therefore, should have indicated to [C]laimant that she developed an acute condition;
4) [C]laimant discussed her worsening GI symptoms with her co-workers as early as August 2009, and understood that her symptoms were very similar to the symptoms suffered by two of the residents she was treating in the first week of August of 2009;
5) [C]laimant engaged in discussions with her treating physicians during her hospitalization about the suspected diagnoses of shiga, shigella and E. coli. As [C]laimant testified, one of the residents she treated suffered from E. coli and thus [C]laimant should have known that there
was a connection between her treatment of the residents and her symptoms.(F.F. ¶5, R.R. at 8a-9a.)
Claimant appealed to the Board, and the Board issued an opinion and order on February 26, 2013 affirming the decision of the WCJ. (R.R. at 11a-17a.) Claimant timely appealed to this Court. Our review is limited to determining whether there has been an error of law or violation of constitutional rights and whether the WCJ's necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; City of Pittsburgh v. Workers' Compensation Appeal Board (McFarren), 950 A.2d 358, 359 n.2 (Pa. Cmwlth. 2008). The question of whether adequate notice was given to an employer is a mixed question of law and fact that is very fact-intensive and requires significant deference to the fact-finder. Gentex Corp. v. Workers' Compensation Appeal Board (Morack), 611 Pa. 38, 48 & n.10, 23 A.3d 528, 534 & n.10 (2011).
Notice of a work-related injury is a prerequisite to receiving workers' compensation benefits, and the claimant bears the burden of showing that proper notice was given. Id. at 49, 23 A.3d at 534. The timing and content of the notice are governed by Section 311 and Section 312 of the Act. 77 P.S. §§ 631, 632. Section 311 provides that a claimant must provide notice within 120 days of either the date of the injury or the date at which the claimant, "knows, or by the exercise of reasonable diligence should know, of the existence of the injury and its possible relationship to his employment." 77 P.S. § 631. The discovery rule under Section 311 allows that "employees who suffer an injury that is not readily and immediately ascertainable have the same rights under the Act as those employees who sustain an injury that is, as long as they proceed with reasonable diligence." Sell v. Workers' Compensation Appeal Board (LNP Engineering), 565 Pa. 114, 123, 771 A.2d 1246, 1251 (2001). The standard of reasonable diligence requires "a reasonable effort to discover the cause of an injury under the facts and circumstances present in the case." Sell, 565 Pa. at 124, 771 A.2d at 1251 (quoting Cochran v. GAF Corp., 542 Pa. 210, 217, 666 A.2d 245, 249 (1995)) (internal quotations omitted). While reasonable diligence is an objective standard, "it is sufficiently flexible to take into account the different capacities people have to deal with the circumstances they confront." Sell, 565 Pa. at 124, 771 A.2d at 1251. In order to trigger the running of the 120-day period for notice, a claimant must have: (1) knowledge or constructive knowledge (2) of a disability, (3) which exists, (4) which results from an occupational disease or injury, and (5) which has a possible relationship to the employment. A & J Builders, Inc. v. Workers' Compensation Appeal Board (Verdi), ___ A.3d ___ (Pa. Cmwlth. No. 479 C.D. 2013, filed October 16, 2013), 2013 WL 5634264, slip. op. at 11; Allegheny Ludlum Corp. v. Workers' Compensation Appeal Board (Holmes), 998 A.2d 1030, 1034 (Pa. Cmwlth. 2010).
Section 312 requires that the notice "shall inform the employer that a certain employe received an injury, described in ordinary language, in the course of his employment on or about a specified time, at or near a place specified." 77 P.S. § 632. The Act does not require that notice be given in a single communication or that the conversations between a claimant and employer be considered in isolation. Gentex, 611 Pa. at 53, 23 A.3d at 537. Furthermore, the employer's knowledge of the circumstances surrounding the injury is relevant in the analysis of whether notice was adequate. Gentex, 611 Pa. at 54, 23 A.3d at 538; Kocher's IGA v. Workers' Compensation Appeal Board (Dietrich), 729 A.2d 145, 149 (Pa. Cmwlth. 1999). As our Supreme Court has explained:
[W]hat constitutes adequate notice pursuant to Section 312 is a fact-intensive inquiry, taking into consideration the totality of the circumstances. Although Section 312 requires a claimant to inform his or her employer that the claimant received a work-related injury at a specified time and place, the notice only need be conveyed in ordinary language, can take into consideration the context and setting of the injury, and may be provided over a period of time or a series of communications, if the exact nature of the injury and its work-relatedness is not immediately known by the claimant.Gentex, 611 Pa. at 53, 23 A.3d at 537.
Our Supreme Court has stressed the flexibility of the notice requirements of Sections 311 and 312, stating that courts should be mindful that "the Act was intended to benefit the injured employee, and therefore, must be construed liberally in the employee's favor in order to effectuate its humanitarian objectives." Id. at 48, 23 A.3d at 534; see also Sell, 565 Pa. at 123, 771 A.2d at 1251. Notice need not be "letter perfect" and "a meritorious claim ought not, if possible, be defeated for technical reasons." Gentex, 611 Pa. at 54-55, 23 A.3d at 535 (quoting Katz v. The Evening Bulletin, 485 Pa. 536, 541, 403 A.2d 518, 520 (1979)) (internal quotations omitted). Moreover, the Supreme Court has recognized that in certain classes of cases where the nexus between the injury and the cause is not readily apparent - such as those cases involving cumulative trauma injuries or occupational diseases - fixing the date at which the 120-day notice period begins to run is often difficult and the notice date is often well after the first date at which the claimant begins to suffer symptoms. City of Philadelphia v. Workers' Compensation Appeal Board (Williams), 578 Pa. 207, 219, 851 A.2d 838, 845 (2004); Sell, 565 Pa. at 126, 771 A.2d at 1252.
In Sell, the Supreme Court addressed a case where the claimant, a quality control technician, developed emphysema following exposure to formaldehyde and other chemicals at her place of employment. 565 Pa. at 117-18, 771 A.2d at 1247-48. Approximately one year after the initial diagnosis, the claimant visited a specialist who informed her that her condition was causally linked to her workplace exposure to chemicals. Id. at 119, 771 A.2d at 1248. The claimant sent the specialist's report to the employer shortly thereafter and subsequently filed a claim petition. Id. The WCJ granted the claim petition, and the employer appealed. Id. at 120-21, 771 A.2d at 1249. This Court reversed the WCJ and concluded that the claimant should have known of the cause of her emphysema when she first received a diagnosis based upon on the claimant's testimony that she had a long-standing concern about the effects of the workplace chemicals on her health. Id. at 126, 771 A.2d at 1252-53. Our Supreme Court reversed the opinion of this Court and found that the claimant acted with reasonable diligence in seeking out an expert who could confirm her suspicion that the chemicals in her workplace had harmed her health. Id. at 126-27, 771 A.2d at 1253. The Supreme Court concluded that it was the date the claimant received a report on the cause of her emphysema, rather than the date of the initial diagnosis, that triggered the running of the 120-day period because "the discovery rule, as incorporated by the legislature in [Section 311], calls for more than an employee's suspicion, intuition or belief." Id. at 126, 771 A.2d at 1253.
Similarly, in A & J Builders, a recent decision of this Court, the claimant was a commercial drywall carpenter who aggravated a pre-existing knee injury while working at the employer. ___ A.3d at ___, slip. op at 1-3. The claimant received treatment on his knee during the course of employment but the doctor who provided the treatment did not explain to the claimant that the injury was related to the claimant's current employment. Id. at ___, slip. op. at 3. Approximately 18 months after leaving the employer, the claimant met with a new doctor who informed the claimant for the first time that the injury was related to his previous employment. Id. at ___, slip. op. at 4-5. The claimant then filed a claim petition within 120 days of that meeting. Id. at ___, slip. op. at 2. This Court affirmed the decision of the WCJ that the claimant's notice was timely, concluding that although the claimant "may have suspected a possible relationship between his knee condition and employment, he did not possess the requisite knowledge until" he received a diagnosis that his condition was work related. Id. at ___, slip. op. at 14-15; see also The Bullen Companies v. Workers' Compensation Appeal Board (Hausmann), 960 A.2d 488, 493-94 (Pa. Cmwlth. 2008) (holding that notice was timely based on the date the claimant received a definitive medical diagnosis tying his kidney condition to his employment even though the claimant suspected that his kidney condition was related to his employment, and retained an attorney and medical expert to investigate the connection, over 18 months prior to giving notice).
In the instant action, the facts relating to the notice issue are not in dispute. In early August 2009, Claimant began experiencing bloody diarrhea and dehydration, symptoms that were similar to several residents with whom Claimant had recently worked, one of whom had an E. coli infection. These symptoms were unique in Claimant's experience as she had suffered from chronic constipation as a result of her proctitis condition, but Claimant recognized that these symptoms were similar to those suffered by the sick residents. Claimant informed her supervisor of her symptoms and that she had been prescribed prednisone. The symptoms grew worse and Claimant was hospitalized on August 29, 2009, where tests revealed that she had shiga toxin and Claimant's doctors explained to her that she may have been exposed to shiga toxin, shigella and E. coli. Claimant kept her supervisor informed about her condition, including her shiga diagnosis, while she was in the hospital and then afterwards when she returned to work for a brief period in October 2009. Claimant did not, however, tell her supervisor that her medical issues were work-related. In October 2010, Dr. Farbowitz informed Claimant that her shiga infection was related to her employment, and shortly thereafter Claimant filed a Claim Petition.
On the basis of this evidence, the WCJ found that Claimant's testimony that she was unaware of the causal relationship between her shiga infection until October 2010 unworthy of belief and that Claimant should have known of the connection at the latest on September 19, 2009 when she was first discharged from the hospital. (F.F. ¶¶5, 6, 8; R.R. at 8a-9a.) We conclude that the WCJ's determination that Claimant's notice was untimely was based upon a misapplication of the flexible discovery rule for notice of a work-place injury under the Act. The decisional law of this Court and the Supreme Court instructs that in cases where the cause of a putative work injury is latent and not easily detectable by a lay person, the mere suspicion of what caused the injury is insufficient to start the 120-day period. Sell, 565 Pa. at 126, 771 A.2d at 1253; A & J Builders, ___ A.3d at ___, slip. op. at 15; Bullen Companies, 960 A.2d at 493. Claimant's uncontradicted testimony can only lead to the conclusion that she had nothing more than an unproven suspicion of what caused her medical issues until she was informed about the causal connection to her employment by Dr. Farbowitz in October 2010.
In determining that Claimant should have known the cause of her illness in September 2009, the WCJ inappropriately attributed to Claimant "a more sophisticated knowledge regarding how infectious diseases are spread" than was warranted. Claimant was an occupational therapist, not a microbiologist or other specialist with a detailed knowledge in the transmission of infectious agents. Rather, Claimant's responsibilities at Employer were to improve the ability of residents at the facility to perform activities of daily living, such as dressing and bathing, working with residents on strength and range of motion exercises and adapting utensils for use of the residents. (12/8/10 H.T. at 8, R.R. at 25a.) Nothing in Claimant's testimony indicates that she had a sophisticated knowledge of bacterial infections. Instead, the only evidence that bears on Claimant's specialized knowledge is that she worked as an occupational therapist for ten years, she was vigilant about wearing protective clothing and she completed an infection control and prevention course when she began working at Employer, which, according to the certificate of completion entered as evidence at the hearings, took 19 minutes to complete. (2/3/11 H.T. Employer Ex. 1.) Such awareness of the threat of contracting infectious diseases is irrelevant to her knowledge of the cause of her medical issues.
A claimant faced with a disease or injury of not easily verifiable origin must act with reasonable diligence to determine the origin of her illness and provide notice to her employer. Any delay in ascertaining the origin of the infection by Claimant in this particular instance, however, was reasonable in light of the catastrophic ongoing medical issues following her exposure to the shiga toxin, including several hospital stays in the fall of 2009, the emergency premature delivery of her child in December 2009 and the various surgical attempts to repair her gastrointestinal tract that continued until May 2010. (12/8/10 H.T. at 23-31, R.R. at 40a-48a.) Moreover, Claimant's testimony was clear that she kept Employer informed of her illness and her diagnosis at each stage of her treatment.
Accordingly, we hold that Claimant's notice was adequate under the provisions of the Act and reverse the order of the Board. We remand to the Board with instructions to remand to the WCJ for further proceedings relating to the merits of the claim petition.
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 17th day of December, 2013, the order of the Workers' Compensation Appeal Board (Board) is REVERSED and this matter is REMANDED to the Board with instructions to remand to the workers' compensation judge for further proceedings addressing the merits of Petitioner's claim petition.
Jurisdiction relinquished.
/s/ _________
JAMES GARDNER COLINS, Senior Judge