Opinion
No. 2194 C.D. 2014
07-08-2015
Michele Tesno, Petitioner v. Workers' Compensation Appeal Board (Brown's Super Stores and PMA Insurance Company), Respondents
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Michele Tesno (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) affirming the Workers' Compensation Judge's (WJC) decision dismissing her claim petition for workers' compensation benefits. For the reasons that follow, we affirm.
On July 25, 2012, Claimant filed a claim petition under the Workers' Compensation Act (Act) asserting that on March 19, 2012, while employed with Brown's Super Stores (Employer), she sustained injuries to her shoulders, arms and hands, bilaterally with neuropathy and sensory disturbance, while performing her duties as a delicatessen/appetizer clerk. She sought payment of medical bills, attorney's fees and full disability benefits as of March 21, 2012, and stated that she provided notice of her injury to Employer on March 20, 2012, via "an out of work disability note to store manager." (Claim Petition, ¶6.)
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
Employer filed an answer denying that Claimant's injury was work related. Specifically, although Employer admitted that Claimant provided a disability note on March 20, 2012, it denied that the note made any reference to a work-related injury and, therefore, contended that Claimant failed to provide Employer with the requisite notice within 120 days of the work-related injury as required by Sections 311 and 312 of the Act.
77 P.S. §§631 and 632. Specifically, Section 311 of the Act provides:
Unless the employer shall have knowledge of the occurrence of the injury, or unless the employe or someone in his behalf, or some of the dependents or someone in their 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. However, in cases of injury resulting from ionizing radiation or any other cause in which the nature of the injury or its relationship to the employment is not known to the employe, the time for giving notice shall not begin to run until the employe knows, or by the exercise of reasonable diligence should know, of the existence of the injury and its possible relationship to his employment. The term "injury" in this section means, in cases of occupational disease, disability resulting from occupational disease.77 P.S. §631. Moreover, Section 312 states, "The notice referred to in section 311 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.
Before the WCJ, Claimant, by deposition, testified that she had been working for Employer as a deli clerk for about six years when she left work on March 20, 2012. In discussing her typical duties as a deli clerk, she explained that she was required to fill orders, make salads, cook products, sweep and mop the floors, clean the walls, stock supplies, take care of the hot fryers, remove products from the oven and check their temperatures, stock the back bar and outside cases, clean the cases, carry products out of the walk-in refrigerator unit, and take out the trash at times. She further testified that these tasks required her to lift anywhere from five to fifty pounds and involved significant bending, lifting and squatting.
Claimant explained that she began experiencing physical difficulties with her hands, arms, shoulders and neck in 2009, with symptoms worsening in her shoulders and upper arms and later developing extreme, tingling pain travelling from her elbows to her fingers. She stated that on December 5, 2011, she took unpaid leave to undergo open-heart surgery for which she received short-term disability benefits that terminated in April or May 2012. When she returned to work on March 5, 2012, she testified that she experienced increased difficulties in her upper extremities due to the repetitive motions of slicing lunchmeat and mixing salads. Despite her prior treatment with a rheumatologist, Dr. Getzoff, from 2009 to 2010 for this pain, those problems became progressively worse over this period and culminated in extreme pain on March 20, 2012, that caused her to leave work.
On cross-examination, Employer's counsel inquired:
Q. Did you ever tell anyone in 2009 that you were having trouble at work?(Reproduced Record [R.R.] at 50a-51a.)
A. Yeah, the people I worked with knew, like not them being head of the store, but yeah, they knew.
Claimant also presented the deposition of David Weiss, D.O., who is board-certified in osteopathic medicine, pain management, and as an independent medical examiner. He testified regarding the nature of Claimant's injuries, the course of her treatment, and her prognosis.
In opposition to Claimant's claim petition, Employer presented Claimant's October 15, 2012 deposition testimony in which she stated that she provided a doctor's order dated March 20, 2012, to Employer. Specifically, the order referenced states, "Michele Tesno is to be out of work until medically cleared." (R.R. at 246a.)
Employer also presented the deposition testimony of Louis DeCenzi, Employer's Director of Loss Prevention and Safety and the Point of Sale Operations, who administered workers' compensation benefits for Employer. He testified that when Claimant returned to work after her open-heart surgery, she provided Employer with a note from her physician that she had fully recovered and could resume her duties without restriction. He further stated that the note did not indicate that Claimant was suffering from any work-related injury. He admitted that Claimant provided the March 20, 2012 doctor's note to Employer, but explained that it did not indicate that Claimant was leaving work because she sustained a work-related injury. He testified that Employer only learned that Claimant had filed a workers' compensation claim when it received her claim petition on July 25, 2012.
Specifically, the note signed by Michael A. Acker, M.D., provides:
To Whom It May Concern:(R.R. at 276a.)
[Claimant] underwent open heart surgery on December 19, 201[1]. She has done well following her surgery. She is able to return to work as of March 5, 2012. I have lifted all of her restrictions. If you should have any questions or concerns, please do not hesitate to contact my office.
Employer also presented the testimony of Stephanie Sweet, M.D., a board-certified orthopedic surgeon, to counter Claimant's expert medical testimony. Because this testimony is not the subject of the instant appeal, it will not be set forth at length.
He also testified that Claimant applied to her union for disability benefits and that the application required a certification of a physician, which was completed by Claimant's primary-care physician, Mark Liebreich. The certification stated that Claimant's disability began on March 19, 2012, that she never had the same or a similar condition, and that the condition was not work related. Moreover, Director DeCenzi explained that an employee who suffers a work-related injury is ineligible for union disability benefits provided through the Health and Welfare Fund, which Employer fully funds.
Although finding that Claimant satisfied her burden of proving that she sustained a work-related injury on March 19, 2012, the WCJ denied Claimant's claim petition because she failed to establish that she notified Employer within 120 days that she had incurred a work-related injury. Specifically, the WCJ found that Claimant's testimony that she complained to individuals at work about her condition did not establish that she gave notice because she did not identify those individuals and admitted that none of them were her supervisors. Further, he found that none of the physicians' notes provided to Employer indicated that Claimant's injury was work related and, in fact, the disability application provided to the union indicated that the injury was not work related. The WCJ also found Director DeCenzi's testimony credible that Employer did not learn that Claimant incurred a work-related injury until it received the claim petition on July 25, 2012, which is more than 120 days after the date of injury.
The WCJ defined Claimant's work injury as "cumulative repetitive trauma disorder bilateral upper extremities with aggravation of preexisting diabetic peripheral neuropathy predat[ing] the injury with cumulative repetitive trauma disorder...be[ing] secondary on top of this, not the primary an aggravation type injury; an occupational cervical spine syndrome...; and the cumulative repetitive trauma disorder exacerbat[ing] the bilateral CTS." (WCJ Opinion, at 15.)
Claimant appealed to the Board, which affirmed the WCJ's decision, explaining that under Sections 311 and 312 of the Act, 77 P.S. §§631 and 632, absent an employer's actual knowledge of an injury, a claimant bears the burden of proving that she notified her employer within 120 days of both her injury and the fact that it was work related. The Board determined, based upon both Claimant's and Director DeCenzi's testimony, that Claimant failed to satisfy her burden and upheld the WCJ's order.
On appeal, Claimant contends that the WCJ's decision is not supported by substantial evidence because Employer did not offer testimony from any of its supervisors or managers challenging Claimant's credible testimony that she informed "the people [she] worked with" of her injury and also notified Employer of it through the physician's order dated March 20, 2012, and the certification of attending physician. Claimant argues that this evidence demonstrates that she complied with the notice requirements mandated by Sections 311 and 312 of the Act, 77 P.S. §§631 and 632.
We review decisions of the Board to determine whether errors of law were made, constitutional rights were violated, and whether necessary findings of fact are supported by substantial evidence. Ward v. Workers' Compensation Appeal Board (City of Philadelphia), 966 A.2d 1159, 1162 n.4 (Pa. Cmwlth.), appeal denied, 982 A.2d 1229 (Pa. 2009). "Substantial evidence" has been defined as "such relevant evidence a reasonable person might find sufficient to support the WCJ's findings," when considering the evidence as a whole and viewing it in the light most favorable to the party who prevailed before the WCJ. Frog, Switch & Manufacturing Co. v. Workers' Compensation Appeal Board (Johnson), 106 A.3d 202, 206 (Pa. Cmwlth. 2014) (internal quotation marks and citations omitted).
Under Sections 311 and 312 of the Act, 77 P.S. §§631 and 632, a claimant bears the burden of proving all elements necessary to support her claim petition, including notice and the fact that her injury is work related. Gribble v. Workers' Compensation Appeal Board (Cambria County Association for the Blind), 692 A.2d 1160, 1162 (Pa. Cmwlth. 1997). Where a claimant sustains a work injury which is cumulative in nature, the date of injury for purposes of calculating the 120-day notice period is the last day the claimant worked, not the date on which her symptoms commenced. Refiners Transport and Terminal v. Workmen's Compensation Appeal Board (Harris), 632 A.2d 979, 983 n.2 (Pa. Cmwlth. 1993). --------
As to Claimant's assertion that the March 20, 2012 doctor's note and certification of attending physician clearly notified Employer of Claimant's injury, neither described the injury as work related and, significantly, the certification expressly stated that the injury was not work related. Further, a review of the record belies Claimant's assertion that Employer had actual knowledge that her injury was work related as of March 19, 2012, based on Claimant's testimony that she previously informed her co-workers of her disabling injuries to her upper extremities, and that her supervisor personally observed the same.
While Claimant did testify that she informed some of her unidentified co-workers of her issues at work in 2009, she specifically clarified that she never informed anyone at the "head of the store" of these issues. (R.R. at 50a-51a.) Moreover, as discussed above, Claimant offered no evidence to demonstrate that she notified Employer that her 2012 injury was work related or related in any way to her prior complaints of 2009. Further, despite Claimant's argument to the contrary, she has not pointed to any evidence, and this Court has been unable to find any, indicating that her supervisor personally observed that her disabling injuries were a result of her continued, repetitive motions at work. While Claimant suggests that "it was incumbent upon the employer and its carrier to present the testimony of the deli manager in this supermarket...to testify as to her knowledge and information on the issue of notice," Claimant's Br. at 38, it is Claimant and not Employer who bears the burden of proving notice.
Accordingly, because the WCJ did not err in finding that Claimant failed to sustain her burden of proving notice as required by Sections 311 and 312 of the Act, 77 P.S. §§631 and 632, we affirm the Board's decision upholding the WCJ's denial of Claimant's claim petition as supported by substantial evidence.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 8th day of July, 2015, the order of the Workers' Compensation Appeal Board dated November 7, 2014, in the above-captioned case is affirmed.
/s/_________
DAN PELLEGRINI, President Judge