OPINION BY Judge LEAVITT.
Jamie Gahring (Claimant) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) denying his claim for benefits for a back injury. The Board affirmed the determination of the Workers' Compensation Judge (WCJ) that Claimant's prior employer, R and R Builders (Employer I), was not liable for the back injury because the aggravation of Claimant's pre-existing back injury occurred while he was working as a cook at Stoudt's Brewing Company (Employer II). However, the WCJ held that Employer II was not liable for the aggravation because it did not receive timely notice of the injury. Claimant contends that his notice to his supervisor at Employer II that his back pain was related to his increased hours constituted sufficient notice of a repetitive trauma injury under the Workers' Compensation Act (Act).
In 2010, Claimant began working for Employer II as a line cook. In 2011, he began to experience increased back pain that culminated in surgery on November 17, 2012. On January 24, 2013, Claimant's doctor released him to return to work with restrictions that Employer II could not accommodate, which resulted in the termination of his employment.
On February 6, 2013, Claimant filed a petition for penalties against Employer I, alleging that it had violated the Act by not paying his outstanding medical bills for the treatment of his 1997 back injury. On March 11, 2013, a hearing on the penalty petition was held. Counsel for Employer I stated that it would be filing a petition to join Employer II as a defendant in the proceeding. Claimant's counsel responded that he had been "debating" whether to file a claim petition against Employer I as a result of Claimant's recent wage loss. Notes of Testimony (N.T.), March 11, 2013, at 6; Reproduced Record at 23a (R.R. ___).
On March 19, 2013, Claimant filed a claim petition against Employer I. The petition alleged that Claimant's sacroiliitis, post laminectomy fusion syndrome, and pain over iliac crest sites, which resulted in surgery on November 17, 2012, were compensable by Employer I. On March 19, 2013, Claimant filed a claim petition against Employer II, alleging he suffered a work injury in April 2012, when he was burned.
On April 1, 2013, Employer I filed a petition for joinder of Employer II, alleging that Claimant's injuries were attributable to his work for Employer II.
The WCJ consolidated the petitions. The WCJ found that Claimant had sustained a work injury in the nature of sacroiliitis, post laminectomy fusion syndrome and pain over iliac crest sites that required the November 17, 2012, surgery. The WCJ credited the testimony of Claimant's medical expert, Marc P. Oliveri, D.O., a board-certified orthopedic surgeon, that Claimant sustained these injuries while working as a line cook for Employer II. Accordingly, the WCJ dismissed the petitions against Employer I.
On the claim petition against Employer II, the WCJ found that Claimant established he sustained a burn injury to his left elbow. He also found that because Claimant's supervisor, James Carr, testified that he witnessed the accident, Employer II
Construing Employer I's joinder petition to be a claim petition against Employer II, the WCJ found that Claimant proved, through the testimony of Dr. Oliveri, that he suffered a work-related aggravation of his pre-existing back condition while working as a cook for Employer II. However, because Claimant did not give notice of the aggravation within 120 days of the last day of his employment with Employer II, his claim was barred by Section 311 of the Act.
The evidence on Claimant's notice to Employer II consisted of testimony from Claimant and from his supervisor. Employer II's office manager also testified. In addition, Claimant's physician testified about the date and cause of Claimant's work injury.
Claimant testified that since 2002, he has treated with his family doctor for his ongoing back pain. However, when his back pain increased, he would return to Dr. Oliveri, his back surgeon. On February 15, 2012, Claimant visited Dr. Oliveri, who diagnosed Claimant with sacroiliitis that was related to the 1997 back injury. In October 2012, Claimant's hours increased at Employer II from 40 hours a week to 55 hours, when another employee left. Claimant testified "it just start[ed] hurting mid-October through our busy season. And [Carr] would keep asking me what was wrong with me and I just told him that my back was really bothering me." N.T., March 11, 2013, at 28; R.R. 61a.
Carr confirmed that Claimant complained of back pain on a number of occasions. Carr also testified that Claimant told him that "the additional hours" were "making his back worse." N.T., September 30, 2013, at 37; R.R. 407a. Carr made notes detailing the days Claimant's back pain caused him to miss work, but he did not give the notes to Christine Bauman, the office manager. However, Carr did inform Bauman that Claimant's back pain was worsening and that he needed surgery. Id. at 70, 73; R.R. 440a, 443a. When Carr informed Bauman that Claimant needed surgery, she did not fill out a workers' compensation report. Id. at 74; R.R. 444a.
Claimant's physician, Dr. Oliveri testified about his treatment of Claimant. Dr. Oliveri did a spinal fusion in 2002 and has seen Claimant on and off over the years for recurring back pain. In February 2012, Dr. Oliveri diagnosed Claimant with
At his June 21, 2013, deposition, Dr. Oliveri opined that Claimant's work at Employer II aggravated his post laminectomy syndrome and lumbar disc disease and created his sacroiliac condition. Dr. Oliveri explained that he harvested bone from Claimant's iliac joint for the 2002 spinal fusion, which predisposed Claimant to sacroiliac arthritic changes. However, Claimant did not experience pain in the sacroiliac joint until 2012, while working for Employer II. Dr. Oliveri opined that the bending, twisting, and lifting Claimant did in his job with Employer II aggravated his sacroiliac condition, which had its origin in the 1997 work injury.
The WCJ found that Claimant reported his back pain to his supervisor, Carr, who believed the problem dated to his 1997 back injury. The WCJ identified Claimant's last day of work, i.e., November 10, 2012, as the date that Claimant's injury occurred. The WCJ also found that Employer II first learned that Claimant may have sustained an aggravation to his pre-existing back injury at the April 8, 2013, hearing, i.e., 148 days after Claimant stopped working. Because Claimant did not report his work injury to Employer II within 120 days of its occurrence, the WCJ concluded that Employer II was not liable for compensation.
Claimant appealed to the Board, and it affirmed the WCJ. In doing so, the Board acknowledged that the "worsening of [Claimant's] condition occurred slowly rather than as a result of a sudden, traumatic event." Board Adjudication at 4. The Board also noted that Carr acknowledged that the "worsening" of Claimant's condition was related to his increased hours as a line cook for Employer II:
Board Adjudication at 5-6 (emphasis added) (citations omitted). The Board concluded that Claimant's statements were not specific enough to put Employer II on notice that Claimant's "position as a line cook was causing his more recent back complaints." Board Adjudication at 8.
Claimant petitioned for this Court's review.
Employer II responds that Claimant was not specific about the time and place of his "alleged back injury." Employer II Brief at 32. It notes that Claimant knew that he had to report any work injury on a form adopted by Employer II for that purpose. When Claimant told Carr that his back pain worsened due to the extra hours he was assigned when another employee left, Carr simply put notes in Claimant's file without informing anyone in management. Further, Carr understood that Claimant's "longstanding problems with his back ... extended back to 1997." Employer II Brief at 12. On these facts, Employer contends that the Board's conclusion should be affirmed.
We begin with a review of the applicable law. The claimant has the burden of proving all elements necessary to support an award of benefits. Inglis House v. Workmen's Compensation Appeal Board (Reedy), 535 Pa. 135, 634 A.2d 592, 595 (1993). This includes proving that the claimant gave the employer timely notice of the injury. C. Hannah & Sons Construction v. Workers' Compensation Appeal Board (Days), 784 A.2d 860, 864 (Pa.Cmwlth.2001). Section 311 of the Act requires the claimant to inform his employer of a work injury within 120 days of its occurrence. 77 P.S. § 631. When "cumulative trauma/aggravation injuries" are at issue "the last day of employment is the critical date of injury for purposes of determining timely notice." City of Philadelphia v. Workers' Compensation Appeal Board (Williams), 578 Pa. 207, 851 A.2d 838, 848 (2004). The claimant must have knowledge that his injury is work-related. Accordingly, Section 311 states that "the time for giving notice shall not begin to run until the employe knows" that his injury is work-related. 77 P.S. § 631.
The notice requirements of Section 311 for a cumulative trauma type of work injury have been established in case law precedent. Gentex Corporation v. Workers' Compensation Appeal Board (Morack), 611 Pa. 38, 23 A.3d 528 (2011), is the leading, and dispositive, case. In Gentex, the claimant, a 40-year employee, was required to work more hours in order to complete her work as an inspector of helmets manufactured by her employer. With the increased hours, the claimant developed pain and swelling in her hands. In January 2005, she informed her supervisor that she could no longer tolerate the pain in her hands and, thus, had to leave work. On February 2, 2005, the claimant applied for short-term disability benefits, stating that her swollen hands were attributed
The Supreme Court explained that in the case of a cumulative trauma, the connection to work duties may not be obvious. The claimant must notify an employer that he has an injury, but this can be done in "collective communications." Id. at 538. The Supreme Court held that the claimant's statement to her supervisor that she had pain at work followed by a voicemail message that she had "work-related problems" satisfied the notice requirements of Section 311 of the Act. Id. at 537. 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." Id. at 536.
Further, the claimant's affirmative statement on her disability insurance application that her condition was not work-related was not fatal to her subsequent claim for workers' compensation.
Recently, in Morris v. Workers' Compensation Appeal Board (Ball Corp. and Sedgick CMS, Inc.), 2015 WL 5440508 (Pa. Cmwlth., No. 1172 C.D.2014, filed January 16, 2015), this Court considered what communications constitute sufficient notice of a work injury. In Morris, the claimant worked as an electrician and claimed his job duties had caused a physical injury to his back as well as a psychological injury, i.e., anxiety and panic attacks.
This Court reversed the Board. We held that, as in Gentex, the claimant's several
Likewise, here, Claimant reported his increasing back pain to his supervisor. Carr specifically testified that Claimant not only reported his increase in back pain but correlated this additional pain to the additional hours Employer II was requiring him to work. N.T., September 30, 2013, at 37; R.R. 407a. Claimant's statements to Carr about his back pain were sufficient to inform Employer II of "the possibility it was work-related." Gentex, 23 A.3d at 536. Carr believed, as did Claimant, that Claimant's back problems were a recurrence of his 1997 injury until he learned otherwise from Dr. Oliveri. Claimant's mistaken belief is of no moment. In Gentex, the claimant explicitly stated on a private disability insurance application that her medical condition was not work related, but it was not an impediment to her claim for workers' compensation that was filed when she learned that her earlier understanding was mistaken.
For these reasons, the order of the Board is reversed and the matter is remanded to the Board with instructions that it remand to the WCJ for a calculation of benefits owed to Claimant by Employer II for his work-related back injury.
AND NOW, this 23rd day of November, 2015, the order of the Workers' Compensation Appeal Board (Board), dated March 13, 2015, is REVERSED and this matter is REMANDED in accordance with the attached opinion.
Jurisdiction relinquished.
77 P.S. § 631 (emphasis added).
Id. at 538, 403 A.2d 518.