Opinion
No. 822 C.D. 2012
09-17-2012
Shaw Environmental & Infrastructure, Inc. c/o The Shaw Group and FARA for Zurich American Insurance Company, Petitioners v. Workers' Compensation Appeal Board (Smith), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Shaw Environmental & Infrastructure, Inc. (Employer) petitions for review of an order of the Workers' Compensation Appeal Board (Board) affirming the Workers' Compensation Judge's (WCJ) decision granting Jacqueline Smith's (Claimant's) claim petition for a work injury sustained on December 22, 2006, and finding that Claimant provided Employer with adequate notice of her work injury pursuant to Section 311 of the Workers' Compensation Act (Act). For the reasons that follow, we affirm the Board's decision.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §631. Section 311 of the Act provides that an employee must give an employer notice of a work injury within 120 days of learning of the injury to be eligible for workers' compensation. Id. Where the cause of an injury or its relationship to employment is not immediately known to the employee, the time for giving notice does not begin to toll until the employee knows, or by the exercise of reasonable diligence should know, of the existence of the injury and its possible relationship to the employment. Id.; Storer v. Workers' Compensation Appeal Board (ABB), 784 A.2d 829, 831-32 (Pa. Cmwlth. 2001), appeal denied, 568 Pa. 640, 793 A.2d 912 (2002).
On December 22, 2006, Claimant was injured when she fell down stairs at work and twisted her right knee. When symptoms of pain, swelling and stiffness began to develop around January 15, 2007, she sought treatment. Claimant was again injured on November 21, 2007, when her right knee gave out while walking in the office, and once again on December 20, 2007, when she attempted to roll her desk chair backward and her knee popped out. Claimant reported the injury to Employer during a meeting in January 2008. Claimant had surgery on her right knee and was off work from February 20, 2008, through April 24, 2008. Following surgery, Claimant's doctor released her to part-time work, but Employer indicated that it could not accommodate the limitations, and Claimant was terminated from her position on May 1, 2008.
The original claim petition dated September 9, 2008, alleged that Claimant's injury occurred on December 1, 2006; however, the claim petition was amended by order of the WCJ. (See Reproduced Record (R.R.), at 8a, 13a-15a.)
Claimant filed three claim petitions in September 2008 all alleging total disability beginning February 19, 2008, due to an injury to her right knee; the petitions cited Claimant's falls in December 2006, November 2007, and December 2007. Employer filed a response alleging that it did not have notice of Claimant's work injury prior to the claim petitions being filed.
Before the WCJ, Claimant offered her own deposition testimony in which she stated that on December 22, 2006, she injured her right knee at work, but did not have pain at the time so she did not report the incident. When she began experiencing right knee pain on January 15, 2007, she testified that she began treating with her family doctor and later an orthopedic doctor, Jeanne Doperak, D.O. (Dr. Doperak), for the injury. Claimant said that she informed her manager and human resources supervisor of the November 21, 2007, and December 20, 2007 incidents during a January 2008 meeting. She submitted a Family and Medical Leave of Absence (FMLA) request on February 18, 2008, citing a work injury to her right knee. She testified that Dr. Doperak informed her for the first time during an examination on February 18, 2008, that her right knee injury was work-related. Dr. Doperak treated Claimant through April 2008 and referred her to David Fowler, M.D. (Dr. Fowler), who performed surgery on her right knee. When Dr. Fowler released her to part-time work after surgery, she was terminated because Employer did not have a part-time position available to suit Claimant's limitations.
Claimant also submitted the deposition testimony of Dr. Fowler who testified that he began seeing Claimant on March 18, 2008. He said Claimant's MRI revealed an irregularity of the meniscus. Dr. Fowler performed arthroscopy on Claimant on March 24, 2008, and said the meniscus was not torn as he originally suspected, but that there was erosion on the lateral tibial plateau. Dr. Fowler stated that his final diagnosis of Claimant, with a reasonable degree of medical certainty, is chondral irregularity of the lateral compartment and was caused by her fall at work on December 22, 2006. On cross-examination, Dr. Fowler said that Claimant's situation, where symptoms developed more than three weeks after the fall, was unusual but not impossible. He agreed that while Claimant's primary complaints were with regard to the medial side of her knee, the arthroscopy only revealed problems in the lateral side, but because of the proximity of the pain to the injured area, that was of no real concern.
Finding Claimant and Dr. Fowler both credible, the WCJ found that Claimant established that she had incurred a work injury on December 22, 2006. As to whether Claimant had provided timely notice of that injury to Employer, he accepted Claimant's testimony that she only learned that her right knee pain was work-related when Dr. Doperak so informed her on February 18, 2008. The WCJ went on to find that Claimant satisfied the 120-day notice requirement contained in Section 311 through her FMLA request of February 20, 2008, which informed Employer that she had incurred a work-related, right knee injury. Based on his findings, the WCJ concluded that Claimant met her burden of proof with regard to demonstrating that a work injury occurred on December 22, 2006, which "caused her to be temporarily totally disabled beginning February 20, 2008." (R.R. at 15a.) However, he also found that Claimant failed to meet her burden with regard to the alleged injuries of November 21, 2007, and December 20, 2007, as Dr. Fowler's testimony did not support those alleged injury dates. The WCJ, therefore, granted the original claim petition for the December 22, 2006 injury and awarded Claimant ongoing temporary total disability benefits, plus payment for all related medical treatment and interest, less counsel fees; the other two claim petitions were denied. Employer appealed to the Board, which affirmed, and this appeal followed.
Our review of an order of the Board is limited to determining whether errors of law were made, whether constitutional rights were violated, or whether the record supports the necessary findings of fact. Ward v. Workers' Compensation Appeal Board (City of Philadelphia), 966 A.2d 1159, 1162 n.4 (Pa. Cmwlth.), appeal denied, 603 Pa. 687, 982 A.2d 1229 (2009).
On appeal, Employer argues that the Board erred in determining that Claimant provided timely notice of her work injury because she never reported her December 22, 2006 injury to Employer until her deposition testimony that occurred on May 6, 2009, and, therefore, did not meet the 120-day mandate of Section 311. See 77 P.S. §631.
In a workers' compensation case, the claimant bears the burden of proving that the employer actually received notice within the 120-day time period set forth in Section 311 of the Act that a work-related injury has occurred. Storer, 784 A.2d at 832. Section 312 of the Act provides that the notice must "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, and does not require that notice be given in a single communication. Gentex Corp. v. Workers' Compensation Appeal Board (Morack), ___ Pa. ___, 23 A.3d 528, 537 (2011). Our Supreme Court has stated that "an exact diagnosis is not necessary in order for an employee to provide adequate notice of a work-related injury to an employer," but rather, a reasonably precise description will suffice. Gentex Corp., 23 A.3d at 536. Whether adequate notice has been provided is a fact-intensive inquiry that takes the totality of the circumstances into consideration. Id. at 537.
Claimant satisfied the 120-day notice requirement because, as found by the WCJ, she only learned that her right knee pain was caused by her December 22, 2006 injury when so informed by Dr. Doperak on February 18, 2008, and Employer was notified of the injury by her February 20, 2008 FMLA request, which cited a work injury in her right knee. Moreover, in January 2008, Claimant reported a right knee injury that she incurred at work, and Employer went so far as to complete an injury report. While that report was with regard to the November 2007 and December 2007 incidents, Employer was nonetheless on notice that Claimant had sustained a right knee injury at work. Because the WCJ is the ultimate factfinder in workers' compensation cases, and the issue of whether a claimant has complied with Section 311 is a question of fact, Storer, 784 A.2d at 832, 834, taking the totality of the circumstances into consideration, the WCJ's findings were proper and supported by substantial evidence, and we will not disturb those findings now.
Employer next argues that the WCJ erred in finding Dr. Fowler's testimony competent and unequivocal because Dr. Fowler did not see Claimant for the first time until March 18, 2008, and had to rely on Dr. Doperak's information in forming his opinion on the cause of Claimant's injury, therefore rendering his opinions on causation mere speculation. "In determining whether medical testimony is unequivocal, the medical witness's entire testimony must be reviewed and taken as a whole and a final decision should not rest upon a few words taken out of the context of the entire testimony." Indian Creek Supply v. Workers' Compensation Appeal Board (Anderson), 729 A.2d 157, 160 (Pa. Cmwlth. 1999). Dr. Fowler's testimony, based upon both his treatment of Claimant and his review of her medical records, was unequivocal that Claimant had suffered chondral irregularity of the lateral compartment in her right knee. Further, Dr. Fowler stated, with a reasonable degree of medical certainty, that the injury was attributable to Claimant's December 22, 2006 work injury. The WCJ, therefore, properly determined that Dr. Fowler testified credibly and competently.
Employer also argues that the WCJ erred in concluding that Claimant is entitled to ongoing total disability benefits from February 20, 2008, onward. However, Claimant testified that her pain has continued, and the WCJ determined that Claimant's testimony was credible. See Lehigh County Vo-Tech School v. Workmen's Compensation Appeal Board (Wolfe), 539 Pa. 322, 652 A.2d 797 (1995) (providing that credibility determinations are within the sole province of the WCJ). Moreover, Dr. Fowler's testimony that he "would think" Claimant's limitations would have been lifted on July 1, 2008, did not unequivocally state that such restrictions were indeed lifted. For these reasons, the WCJ's determination was supported by substantial evidence. See Scher v. Workers' Compensation Appeal Board (City of Philadelphia), 740 A.2d 741 (Pa. Cmwlth. 1999). --------
Accordingly, the order of the Board is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 17th day of September, 2012, the order of the Workers' Compensation Appeal Board, dated April 3, 2012, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge