Opinion
No. 2216 C.D. 2013
03-03-2015
John Westerman, Petitioner v. Workers' Compensation Appeal Board (K-Mart Corp.), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
John Westerman (Claimant) petitions this Court for review of the Workers' Compensation (WC) Appeal Board's (Board) November 20, 2013 order affirming the Workers' Compensation Judge's (WCJ) decision denying Claimant WC benefits. The sole issue before the Court is whether the WCJ erred by finding that Claimant did not give timely notice of his injury to K-Mart Corporation (Employer) in accordance with Section 311 of the Workers' Compensation Act (Act). After review, we affirm.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 631.
Claimant was employed full-time as a shipping manager for Employer. On December 19, 2007, Claimant suffered an abdominal hernia while lifting boxes at work. On December 9, 2010, Claimant filed a claim petition seeking lost wages, medical bills and counsel fees related to the abdominal hernia. Employer denied the claim petition because it was not timely notified of Claimant's injury. Hearings were held before a WCJ on January 10, May 16 and June 29, 2011. On March 12, 2012, the WCJ denied Claimant's claim petition because he failed to notify Employer within 120 days of his injury. Claimant appealed to the Board. On November 20, 2013, the Board affirmed the WCJ's decision. Claimant appealed to this Court.
Claimant's claim petition also included surgical repair of the hernia and complications resulting therefrom.
"This Court's scope and standard of review of an order of the Board is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether Board procedures were violated, whether constitutional rights were violated or an error of law was committed." World Kitchen, Inc. v. Workers' Comp. Appeal Bd. (Rideout), 981 A.2d 342, 346 n.5 (Pa. Cmwlth. 2009). --------
Claimant argues that the WCJ erred as a matter of law by failing to apply the totality of the circumstances standard set forth by the Supreme Court in Gentex Corp. v. Workers' Compensation Appeal Board (Morack), 23 A.3d 528 (Pa. 2011) to the factual findings herein. See Claimant Br. at 7. We disagree.
"Under the Act, notice is a prerequisite to receiving workers' compensation benefits . . . ." Gentex Corp., 23 A.3d at 534. The timing of notice is governed by Section 311 of the Act, which states in pertinent part:
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.77 P.S. § 631 (emphasis added). Section 312 of the Act requires that "[t]he 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. Whether adequate notice of injury was given to an employer "presents a mixed question of fact and law . . . . As this issue is significantly fact[-]driven, great deference is to be given to the [WCJ's] determinations." Gentex Corp., 23 A.3d at 534. "[T]he claimant bears the burden of demonstrating that proper notice was given." Id.
Here, Claimant acknowledged that "the [WCJ] made no errors in his factual findings." Claimant Br. at 7. The WCJ deemed credible Claimant's testimony that after conducting particularly heavy trailer switches on December 19, 2007, he experienced severe pain in his stomach. As he was heading up the ramp to the shipping room, he told one of his subordinate supervisors that the next trailer switch would have to be done without him. WCJ Decision at 4. In Finding of Fact 8, the WCJ specifically found:
The Claimant's testimony is found to be generally credible and establishes the Claimant did experience[] pain at work approximately December 19, 2007 and while he indicated he initially reported his pain to supervisors[,] this was in the context of doing his shipping manager job and the supervisors were subordinates working under the Claimant's supervision and he did not indicate he told the supervisors of the relationship of his pain to the work activities. The Claimant indicated about the relationship of the pain that he was having and what he had been doing[;] he does not recall and does not think he said anything to the supervisors.
The Claimant['s] testimony indicated on the day he experienced the lump in his stomach and the severe pain he did not do anything the rest of the day and later that day did not have a conversation with anyone in a supervisory capacity about what happened to the Claimant[.]
The Claimant's testimony indicated he reported to Robert Blunt the operations manager and[,] within a week of the date the Claimant experienced the protrusion he commented to Robert Blunt about the bump in his stomach and that it was killing him and does not recall at that point telling Robert Blunt about how he got the lump in his stomach[,] just that he was hurting the previous week or so that he was in pain. The Claimant indicated that Robert Blunt noticed a
difference in things that the Claimant could do and could not do.WCJ Decision at 9-10. In Finding of Fact 12, the WCJ stated:
The Claimant's testimony establishes that the first time he reported his pain and its relationship to his work duties to the Employer was when he filed the Claim Petition December 9, 2010[,] almost three years after the December 19, 2007 pain and approximately two years and nine months after the February 2008 examination by his [f]amily doctor[,] at which time his [f]amily doctor did not relate the pain to his work activities[,] as well as two years and eight[] months after March 11, 2008 at which time he went out on short[-]term disability with no evidence presented that it was for the December 19, 2007 work injury.
The Claimant's testimony further establishes that at no time did he report his pain and its relationship to his work activities consistent with the Employer's policy and procedures for reporting work injuries[,] which the Claimant knew or should have known due to his management position as the shipping manager, with the Claimant's testimony inferring that he was not aware that the Employer had a panel of physicians that treated [w]orker[s'] [c]ompensation injuries found particularly not credible.
Ms. McMillan's testimony is particularly credible [that] the Employer always advised [its] management team and train[ed its] management team on proper procedures and reporting injuries, and we also have general meetings monthly, whereas we notify our associates of proper procedures, and we have postings that notify our associates that they should report any injury no matter how minor, so that when medical attention is sought, we have no forbearance on denying the claim or treatment.
Ms. McMillan['s] testimony is particularly credible [that] the Claimant in the time period December 2007 did not report a work injury to Ms. McMillan and[,] on review of the Claimant's personnel file[,] there is nothing in the Claimant's file to reflect a work injury that occurred in December 2007.
Ms. McMillan['s] testimony is particularly credible [that] the Claimant did not ever fill out an incident report, or request to be treated by any of the Employer['s] health or panel physicians.WCJ Decision at 18-19. The WCJ found regarding notice that:
Ms. McMillan['s] testimony is particularly credible [that] the Claimant requested short-term disability when he missed time from work in 2008 with the short-term disability 100% funded by the Employer.
Ms. McMillan, on cross-examination, acknowledged on March 11, 2008 the Claimant's leave was for hernia repair and Ms. McMillian did not inquire how it occurred.
Ms. McMillan['s] testimony is particularly credible [that] she received a note dated February 18, 2009 from Dr. Rosado releasing the Claimant to full duty with no restrictions and that the Claimant returned to work on March 10, 2009[.]
Ms. McMillan's testimony is particularly credible [that] the Claimant on March 24, 2009 was laid off because his position was eliminated[.]
Ms. McMillan's testimony is particularly credible [that] the Claimant never communicated to her that he sustained a work-related injury in December 2007.
The Claimant did not give notice to the Employer of the December 19, 2007 injury within 120 days of the injury. While the Claimant did experience pain in his abdomen and commented about the pain and bump in his stomach to his supervisor[,] he did not make the Employer aware of how or when the pain occurred[,] or that it occurred while doing his shipping manager duties[,] until the filing of the claim petition [on] December 9, 2010 . . . .WCJ Decision at 20. The WCJ made an identical conclusion of law. See WCJ Decision at 20-21. Although the WCJ did not specifically cite Gentex Corp., it is apparent that his findings and conclusions were based upon the totality of the circumstances presented to him. On appeal, the Board expressly analyzed Gentex Corp. and similarly concluded:
Claimant failed to notify Employer of a relationship or a possible relationship between his stomach pain and bump and his work duties until he filed his Claim Petition. Thus, the [WCJ] did not err in finding that Claimant failed to provide adequate timely notice of his work injury . . . .Board Op. at 5.
Because Claimant does not take issue with the WCJ's specific findings, we need only determine whether based on the totality of those findings, Claimant gave Employer timely and adequate notice of his work injury. The Gentex Corp. Court instructed:
Although Section 312 [of the Act] 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.Id. at 537 (emphasis added). This Court has held that notice is not sufficient where an employee merely informs his employer that he is injured, without ever suggesting that the injury is work-related. See Gribble v. Workers' Comp. Appeal Bd. (Cambria Cnty. Ass'n for the Blind), 692 A.2d 1160 (Pa. Cmwlth. 1997); see also Van Patton v. Workmen's Comp. Appeal Bd. (Scott Paper Co.), 485 A.2d 541 (Pa. Cmwlth. 1984).
In this case, the exact nature of Claimant's injury and its work-relatedness were known to Claimant on December 19, 2007. Nevertheless, and despite Claimant's management training on injury reporting, he failed to communicate this information to Employer or complete a workers' compensation incident report and/or seek treatment from one of Employer's panel physicians. Moreover, although Claimant made a series of communications regarding his lump and stomach pain, i.e., informing his subordinate on December 19, 2007 that he could not conduct the next trailer switch that day due to stomach pain, telling Employer's operations manager within a week that he had stomach pain, and advising Ms. McMillan that his 2008 disability leave was for hernia repair, such communications never established a relationship between his pain and his work. Accordingly, the WCJ properly applied the Gentex Corp. totality of the circumstances standard and concluded that Claimant failed to give Employer timely and adequate notice of his work injury.
For all of the above-stated reasons, the Board's order is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 3rd day of March, 2015, the Workers' Compensation Appeal Board's November 20, 2013 order is affirmed.
/s/_________
ANNE E. COVEY, Judge