Opinion
No. 1787 C.D. 2014
03-30-2015
Aqua America, Petitioner v. Workers' Compensation Appeal Board (Conicelli), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Aqua America (Aqua) petitions for review of the September 5, 2014, order of the Workers' Compensation Appeal Board (WCAB) affirming the decision of a workers' compensation judge (WCJ) to grant William Conicelli's (Claimant) claim petition and deny Aqua's termination petition. We affirm.
On May 18, 1998, while working for Perna Septic (Perna), Claimant sustained a left knee injury. Perna issued a notice of compensation payable (NCP) for a "strain/sprain left knee." Claimant returned to work on September 15, 1998, and Perna filed a notice of suspension of benefits. (WCJ's Decision, 8/7/12, at 1.)
In 2006, Aqua acquired Perna, and Claimant continued his duties as a vac pump driver. (WCJ's Findings of Fact, No. 6(a).) On April 17, 2008, while at work, Claimant was driving a truck, using a clutch, and getting up and down out of the truck, when his left knee became swollen and painful. Claimant's supervisor saw Claimant's swollen knee and told Claimant to see a doctor and not return until he received treatment. (Id., No. 6(b).) Thereafter, Claimant did not return to work. (Id., No. 6(c).)
On January 18, 2011, Perna filed a termination petition alleging that as of April 8, 2010, Claimant had fully recovered from his May 18, 1998, work-related injury. (WCJ's Decision, 8/7/12, at 1.) On February 11, 2011, Claimant filed a claim petition, alleging that on April 17, 2008, he suffered "an aggravation of a left knee injury" in the course and scope of his employment with Aqua. (Id.) On September 9, 2011, Aqua filed a termination petition, alleging that Claimant had fully recovered from his April 17, 2008, work-related injury as of June 28, 2011. (Id.)
Thereafter, the petitions were consolidated, and the WCJ conducted a hearing. The WCJ granted Claimant's claim petition, concluding that Claimant sustained a new injury to his left knee on April 17, 2008, in the course and scope of his employment with Aqua. The WCJ denied Perna's and Aqua's termination petitions. On appeal, the WCAB affirmed. Aqua filed a petition for review with this court.
This court denied Aqua's supersedeas petition by order dated January 22, 2015.
Before this court, Aqua initially argues that Claimant failed to notify Aqua of his injury within 120 days as required by section 311 of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §631. We disagree.
Our review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether the necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704. --------
The claimant bears the burden of proving that he provided notice of a work injury to the employer. Pennsylvania Mines Corporation/Greenwich Collieries v. Workmen's Compensation Appeal Board (Mitchell), 646 A.2d 28, 30 (Pa. Cmwlth. 1994). Section 311 of the Act provides that "[u]nless the employer shall have knowledge of the occurrence of the injury" notice of the injury shall be given to the employer within 120 days of the injury's occurrence. 77 P.S. §631. Section 312 of the Act states 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.
Aqua argues that it did not receive notice of Claimant's work-related injury until it received the claim petition, which was well beyond 120 days of the alleged injury. Specifically, Aqua maintains that Claimant never notified his supervisor that he sustained a new work-related injury on April 17, 2008. Claimant's supervisor, however, had actual knowledge of Claimant's injury.
The WCJ credited Claimant's testimony that on April 17, 2008, Claimant was at work, driving a truck with a clutch, and getting up and down out of the truck. Claimant reported to his supervisor, who saw Claimant's swollen knee and told Claimant to see a doctor. Claimant's testimony that his supervisor knew that his swollen knee resulted from his work duties was unrebutted. Contrary to Aqua's contention, Aqua had actual notice of Claimant's work injury because the supervisor observed it. "When an employer has actual notice of an injury, the notice requirement of the Act is satisfied." Bertrand P. Tracy Company v. Workmen's Compensation Appeal Board (Boles), 500 A.2d 513, 514 (Pa. Cmwlth. 1985).
Aqua's reliance on Gribble v. Workers' Compensation Appeal Board (Cambria County Association for the Blind), 692 A.2d 1160 (Pa. Cmwlth. 1997), is misplaced. The claimant in Gribble worked at a job that required him to routinely lift up to 100 pounds. Id. at 1161. The claimant called "his supervisor to report off of work because his back went into spasms and he could not straighten up." Id. This court agreed with the WCAB and the WCJ that the claimant's testimony did not establish that the claimant informed his employer of a work-related injury. Specifically, the claimant did not inform the employer that his back pain was due to an injury that occurred at work. Id. at 1162-63. However, in this case, Aqua had actual knowledge of Claimant's injury because Claimant's injury occurred at work and it was observed by Claimant's supervisor.
Next, Aqua argues that the decision to grant Claimant's claim petition was not based on substantial evidence. We disagree.
The WCJ credited Claimant's testimony and the testimony of Bruce J. Menkowitz, M.D., who has treated Claimant since his original work injury in 1998. The WCJ is the sole determiner of credibility and may accept the testimony of any witness in whole or in part. Rissi v. Workers' Compensation Appeal Board (Tony DePaul & Son), 808 A.2d 274, 278-79 (Pa. Cmwlth. 2002). Both Claimant's testimony and Dr. Menkowitz's testimony support the WCJ's finding that Claimant sustained a new injury on April 17, 2008.
Claimant testified that he initially injured his left knee in 1998 while working for Perna. Dr. Menkowitz performed surgery, and Claimant returned to work six months later performing the same job duties. Claimant continued treating with Dr. Menkowitz. In 2006, Aqua acquired Perna, and Claimant continued working at the same position.
On April 17, 2008, Claimant's knee swelled up after operating a truck with a clutch and getting in and out of the truck. Claimant saw Dr. Menkowitz, who drained his knee and prescribed medication. Claimant has not returned to work and continues to treat with Dr. Menkowitz.
Dr. Menkowitz testified that he performed surgery on Claimant's left knee in 1998 and found a breakdown of the articular cartilage around the patella and a contusion/injury to the medial meniscus and anterior cruciate fibers. (Menkowitz Dep., 1/10/12, at 9-10.) In 1999, Dr. Menkowitz treated Claimant five times and determined that Claimant was developing post-traumatic arthritis. (Id. at 11-12.) Over the next eight years, Claimant treated with Dr. Menkowitz 28 times. During those treatments, Claimant received synvisc injections. (Id. at 12.)
On April 22, 2008, Claimant complained of a great deal of pain in his left knee. (Id. at 13.) A physical examination revealed tenderness around his knee and crepitus with range of motion. (Id. at 14.) A magnetic resonance imaging showed progressive changes in Claimant's knee cap. (Id.) Dr. Menkowitz diagnosed Claimant with post-traumatic arthritis in his left knee due to his 1998 work-related injury and concluded that Claimant had not fully recovered from that injury. (Id. at 19.) Further, Claimant exacerbated his pre-existing injury on April 17, 2008, while getting in and out of a truck at work. (Id. at 19-20.) Dr. Menkowitz concluded that Claimant is incapable of returning to work as a vac pump driver. (Id. at 20-21.)
The above testimony supports the WCJ's finding that Claimant exacerbated his initial work-related injury. As stated by the WCJ, because Dr. Menkowitz has treated Claimant for several years, he was able to assess and evaluate Claimant's condition over a period of time in making his diagnosis. Although Aqua argues that Claimant stated that there was nothing "extra" that Claimant did on April 17, 2008, to cause his work-related injury, nothing "extra" was required. See Workmen's Compensation Appeal Board v. Bethlehem Steel Corporation, 352 A.2d 571, 573 (Pa. Cmwlth. 1976) (stating that when "the claimant's injury arises in the course of employment and is related thereto, he need not pinpoint a specific event which precipitated his injury"). Claimant, through his testimony and that of Dr. Menkowitz, established that while performing his work duties, including operating a clutch and getting in and out of the truck, Claimant's knee became swollen and the injury was a recurrence of the prior work-related injury.
Finally, Aqua argues that the WCJ erred in failing to apportion Claimant's medical bills between Aqua and Perna. Claimant returned to work with no loss of earning power from his original injury when he suffered an aggravation. Aggravation of the original injury is deemed a new injury, thus rendering the current employer responsible. See South Abington Township v. Workers' Compensation Appeal Board (Becker), 831 A.2d 175, 181-82 (Pa. Cmwlth. 2003). Therefore, the WCJ did not err in failing to apportion between Perna and Aqua.
Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 30th day of March, 2015, we hereby affirm the September 5, 2014, order of the Workers' Compensation Appeal Board.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge