R. Croughn v. WCAB (Bloomsburg Metal Co.) (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Robert Croughn, Petitioner v. Workers' Compensation Appeal Board (Bloomsburg Metal Company), Respondent BEFORE: : : : : : : : : No. 2272 C.D. 2007 Submitted: March 28, 2008 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SIMPSON FILED: May 30, 2008 Robert Croughn (Claimant) petitions for review of an order of the Workers Compensation Appeal Board (Board) that affirmed a Workers Compensation Judge s (WCJ) decision denying his claim petition. He argues the WCJ erred in determining he failed to give timely notice of his alleged work injury to his employer, Bloomsburg Metal Company (Employer). Because the WCJ s determination that Claimant did not give Employer timely notice is adequately supported by the record, we affirm. Claimant worked for Employer as a truck driver. In October 2002, he sustained a low back injury for which he received workers compensation benefits. Approximately a year later, Claimant returned to part-time work for Employer. In June 2005, Claimant filed a claim petition alleging that on March 17, 2004, he sustained a cervical spine injury when his truck hit a bump causing the cab of the truck to lift off the ground and come back to the ground very forcefully. Reproduced Record (R.R.) at 1a. Although the claim petition alleges Claimant gave Employer notice of his injury in March 2004, it does not indicate the manner in which notice was given. Id. Employer filed an answer denying the allegations. Employer s answer further alleged Claimant did not give Employer proper notice of his alleged work injury. Hearings ensued before a WCJ. Claimant testified as follows. In October 2002, he sustained a low back injury while working for Employer, and he remained off work for approximately one year. On March 17, 2004, he again experienced low back pain while working for Employer when his truck hit a bump, causing him to hit his head on the ceiling of the cab. When he returned to Employer s shop on that date, he informed Debbie Weidow, Employer s bookkeeper and workers compensation administrator (Employer s Representative), that he took a bad bounce in the truck and he had to go see his chiropractor, Dr. Joseph Matticks. WCJ Op., Finding of Fact (F.F.) No. 19. Despite treating with Dr. Matticks on that date, Claimant did not inform Dr. Matticks of the work incident. Claimant began to experience neck pain in April 2004. In late-April 2004, he began treatment for low back pain with Dr. Pamela Costello, who is board-eligible in neurosurgery (Claimant s Physician). At that time, however, Claimant did not inform his Physician that he was experiencing neck pain. Claimant s Physician subsequently took Claimant off work, but released him to 2 modified work in June 2004. Claimant worked for a short period, and then his Physician took him out of work again. Claimant has remained off work since July 2004. Notably, Claimant first reported his neck problems to his Physician in September 2004. Contrary to his earlier testimony, Claimant then testified he never told Employer about his neck pain because he didn t think anything of it ¦ [he] thought it was all stemming from his lower back. F.F. No. 24. Claimant underwent an MRI in September 2004, and his Physician subsequently informed him he had a herniated disc in his neck. Claimant also presented the deposition testimony of his Physician, who opined he sustained a work-related cervical disc herniation, which was caused by the March 2004 work incident. In response, Employer presented the deposition testimony of its Representative. Employer s Representative testified Claimant did not inform her that he sustained a neck injury in March 2004 or at any time thereafter. She testified Claimant did not inform her that he needed to see Dr. Matticks after an injury on the job. Employer s Representative explained she would have filed a workers compensation report if Claimant informed her of a neck injury. Employer s Representative testified she never had a conversation with Claimant concerning any work-related neck injury, and she first became aware that Claimant was alleging such an injury when she received a copy of the claim petition in June 2005. 3 Employer also presented the deposition testimony of Dr. William H. Spellman, who is board-certified in orthopedic surgery (Employer s Physician). Employer s Physician opined Claimant did not sustain a cervical injury or a herniated disc as a result of the March 2004 work incident. Ultimately, the WCJ issued an opinion in which he credited Employer s Representative s testimony that Employer did not receive notice of Claimant s neck injury until he filed his claim petition. The WCJ specifically rejected Claimant s testimony that Claimant was unaware he was injured until September 2004, when he first informed his Physician that he experienced workrelated neck pain. The WCJ also rejected Claimant s testimony that he believed his neck pain originated from his lumbar area. The WCJ determined Claimant experienced neck pain shortly after the March 2004 work incident and that Claimant knew he injured his neck in April 2004, but did not provide notice to Employer until June 2005. As a result, the WCJ determined Claimant did not prove he provided timely notice of his neck injury to Employer. In addition, the WCJ rejected Claimant s Physician s opinion that Claimant sustained a cervical spine injury as a result of the March 2004 work incident. As such, the WCJ determined Claimant did not meet his burden of proving he suffered a work-related cervical injury. Consequently, the WCJ denied Claimant s claim petition.1 1 The WCJ s decision also addressed several petitions for review of utilization review determinations filed by Claimant regarding his prior 2002 work injury. However, these petitions were resolved in Claimant s favor, and are not at issue on appeal. 4 On Claimant s appeal, the Board affirmed, explaining (with emphasis added): After a careful review of the record, we determine that the WCJ s finding that Claimant failed to provide [Employer] timely notice of his neck injury is supported by substantial, competent evidence. This finding is supported by [the testimony of Employer s Representative] and Claimant s own testimony. Claimant had neck pain shortly after his incident on March 17, 2004. He first reported neck pain to Dr. Costello in September 2004. Claimant was aware that he injured his neck in April 2004; however, he did not provide notice of his neck injury to his employer until he filed his [c]laim [p]etition on June 27, 2005. Consequently, Claimant's notice to [Employer] of his work injury was untimely. ¦ Board Op. at 4-5. This appeal by Claimant followed. Preliminarily, we note, in workers compensation proceedings, the WCJ is the ultimate finder of fact. Peters Twp. Sch. Dist. v. Workers Comp. Appeal Bd. (Anthony), 945 A.2d 805 (Pa. Cmwlth. 2008). As fact-finder, matters of credibility and evidentiary weight are within his exclusive province. Id. The WCJ is free to accept or reject the testimony of any witness, including a medical witness, in whole or in part. Id. If the WCJ s findings are supported by substantial evidence, they are binding on appeal. Westmoreland County v. Workers Comp. Appeal Bd. (Fuller), 942 A.2d 213 (Pa. Cmwlth. 2008). It is irrelevant whether there is record evidence to support contrary findings; the relevant inquiry is whether substantial evidence supports the WCJ s necessary findings. 3D Trucking Co., Inc. v. Workers Comp. Appeal Bd. (Fine & Anthony Holdings Int l), 921 A.2d 1281 (Pa. Cmwlth. 2007). We must view the evidence in a light most 5 favorable to the party who prevailed before the WCJ and draw all reasonable inferences from the evidence in favor of the prevailing party. Id. On appeal,2 Claimant first argues the WCJ s determination that he did not provide Employer timely notice of his work-related neck injury is contrary to the record. We disagree. Timeliness of a claimant s notice of his disability to his employer is mandatory for recovery of workers compensation benefits. Duquesne Light Co. v. Workmen s Comp. Appeal Bd. (Kraft), 416 A.2d 651 (Pa. Cmwlth. 1980). Section 311 of the Workers Compensation Act (Act)3 sets forth the time limitation on notice of injury to the employer and when the time for giving notice begins to run. It states, in relevant 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 one hundred and twenty days after the occurrence of the injury, no compensation shall be allowed. However, in cases of injury resulting from ¦ any ¦ 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. ¦ 2 Our review is limited to determining whether necessary findings were supported by substantial evidence, whether an error of law was committed or whether constitutional rights were violated. Minicozzi v. Workers' Comp. Appeal Bd. (Indus. Metal Plating, Inc.), 873 A.2d 25 (Pa. Cmwlth. 2005). 3 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §631. 6 77 P.S. §631. While the Act is to be liberally construed, Section 311 of the Act is mandatory and bars a claim where it is found that appropriate notice of the injury has not been given to the employer within 120 days of its occurrence. Storer v. Workers Comp. Appeal Bd. (ABB), 784 A.2d 829 (Pa. Cmwlth. 2001). Interpreting Section 311 s notice provision, our Supreme Court explained: [Section 311] provides that an employee, whose employer is unaware that a work injury has occurred, must notify the employer of the injury within 120 days of its occurrence, or be denied compensation. Section [311] s 120-day notice period, however, is not absolute; [§311] includes the discovery rule. Thus, in the same way that the discovery rule tolls a statute of limitations in a medical malpractice case, the 120-day notice period of [§311] does not begin to run in cases in which the nature of the injury or its causal connection to work is not known, until an employee knows or by the exercise of reasonable diligence, has reason to know of the injury and its possible relationship to [his] employment. In our view, by incorporating the discovery rule in [§311], the Pennsylvania legislature saw to it that employees who suffer an injury that is not readily and immediately ascertainable have the same rights under the Act as those employees who sustain an injury that is, as long as they proceed with reasonable diligence. ¦ Sell v. Workers Comp. Appeal Bd. (LNP Eng g), 565 Pa. 114, 123-24, 771 A.2d 1246, 1251 (2001) (citations omitted). [T]he discovery rule, as incorporated by the legislature in [Section 311], calls for more than an employee s suspicion, intuition or belief; by its terms, the statute s notice period is triggered only by an employee s knowledge that [he] is injured and that [his] injury is possibly related 7 to [his] job. Id. at 126, 771 A.2d at 1253. Further, [i]t is important to remember that an injured worker needs to know only the nature of the injury and its relationship to employment in order for the 120-day period of Section 311 to commence. It is not necessary for an injured worker to know the precise medical diagnosis of the injury. Bolitch v. Workmen s Comp. Appeal Bd. (Volkswagon of Am., Inc.), 572 A.2d 39, 42 (Pa. Cmwlth. 1990) (emphasis in original). The claimant bears the burden of establishing he gave the employer timely notice of the injury under Section 311. City of Phila. v. Workers Comp. Appeal Bd. (Williams), 578 Pa. 207, 851 A.2d 838 (2004). The question of the timeliness of that notice is generally one of fact. Id.; Sell; Katz v. Evening Bulletin, 485 Pa. 536, 403 A.2d 518 (1979). Thus, where a WCJ determines a claimant did not give an employer timely notice, we must determine whether substantial evidence supports that finding. Carrier Coal Enters. v. Workmen s Comp. Appeal Bd. (Balla), 544 A.2d 1111 (Pa. Cmwlth. 1988). Here, with regard to the notice issue, the WCJ determined (with emphasis added): 11. I accept the testimony of [Employer s Representative] as credible, that ¦ Employer did not receive [n]otice of ¦ Claimant s work-related injury until the filing of ¦ Claimant s [c]laim [p]etition on June 27, 2005. Your Judge notes that ¦ Claimant left the [n]otice section of the [c]laim [p]etition blank. 12. I find and conclude that ¦ Claimant did not provide timely [n]otice of his work-related injury to ¦ Employer. The record establishes that ¦ Claimant had pain on the left side of his neck shortly after his accident in March of 2004, and continuing. The record also 8 establishes that he did not tell any physician about the neck pain until September of 2004. ¦ Claimant never told ... Employer that he had injured his neck, even after his return to work on June 28, 2004, even though he continued to have pain in the neck area and headaches. Your Judge rejects ¦ Claimant s testimony that up until September of 2004, when he told [Claimant s Physician] that he had work-related neck pain, that he didn t know that he was injured. Your Judge notes that [Claimant s Physician] took a history from ¦ Claimant that he had been bouncing around in the truck when he noticed that sharp pain started. ¦ Claimant still did not provide [n]otice until he filed the [c]laim [p]etition on June 27, 2005. ¦ Claimant s testimony that he thought the pain in his neck was originating from his lumbar area, lacks credibility. ¦ Claimant knew he injured his neck in April of 2004, but did not provide [n]otice until June 27, 2005. ¦ The record establishes that ¦ Claimant had neck pain from the date of injury all the way through the filing of his [c]laim [p]etition on June 27, 2005. F.F. Nos. 11-12. Contrary to Claimant s assertions, the WCJ s determination that Claimant did not provide Employer timely notice of his work-related neck injury is supported by substantial evidence. Specifically, Claimant testified the work incident at issue here occurred in March 2004. Claimant testified he experienced pain through the left side of his neck shortly after the work incident and he experienced continuing neck pain approximately a month after the incident in April 2004, but he thought the pain in his neck originated from his lumbar area. R.R. at 47a-48a, 69a. Claimant testified he did not know he sustained a neck injury until September 2004, when he first informed his Physician he experienced neck pain. 9 R.R. at 56a-57a, 69a. However, the WCJ specifically rejected Claimant s testimony that he did not know he sustained a neck injury until September 2004 and that he believed his neck pain originated from his lumbar area. F.F. No. 12. As the WCJ is free to reject the testimony of any witness in whole or in part, no error is apparent. Further, although Claimant testified he notified Employer of his injury in March 2004, Employer s Representative testified to the contrary. She stated that she did not receive notice of the alleged injury until June 2005. R.R. at 167a. She further testified that at no time during March 2004 did Claimant inform her he suffered a work-related neck injury. R.R. at 162a. Employer s Representative testified Claimant did not inform her in March 2004 that he needed to see his chiropractor, Dr. Matticks, after an injury on the job. R.R. at 163a. Employer s Representative testified if Claimant informed her he sustained an injury in March 2004, she would have been required to complete a workers compensation injury report. R.R. at 164a. The WCJ credited Employer s Representative s testimony that Employer did not receive notice of the work injury until the filing of Claimant s claim petition in June 2005. F.F. No. 11. In short, the WCJ s determination that Claimant did not provide Employer timely notice of his work injury is supported by substantial evidence. Claimant s argument to the contrary invites this Court to reconsider the WCJ s determinations on matters of credibility and evidentiary weight, which we may not do. Peters Twp. Sch. Dist. 10 Nevertheless, Claimant contends the WCJ s acceptance of Employer s Representative s testimony was capricious based on the irreconcilable conflicts in her testimony. Giant Eagle, Inc. v. Workmen s Comp. Appeal Bd. (Bensy), 651 A.2d 212 (Pa. Cmwlth. 1994). As a result, Claimant asserts the Board s refusal to remand the case constitutes an abuse of discretion. Again, we disagree. First and foremost, contrary to Claimant s assertions, our review of Employer s Representative s testimony reveals it was clear and consistent and it does not contain irreconcilable conflicts. As noted above, Employer s Representative testified Claimant did not inform her he sustained a work injury in March 2004, and she first received notice of the alleged injury in June 2005 when she received a copy of Claimant s claim petition. R.R. at 162a-65a, 167a-68a. Moreover, Giant Eagle, relied on by Claimant, is inapposite. There, we determined a referee s decision lacked a rational basis because it was impossible to understand the referee s patchwork credibility determinations as to portions of each individual s testimony. We stated: Not only do the Referee s credibility findings make no sense, neither does his award: reinstatement of [the] [c]laimant's weekly benefits when none was requested; ordering the payment of some medical benefits without delineating which ones; awarding travel expenses without having any evidence to make that determination other than [the] [c]laimant's testimony that he wanted to be reimbursed for money spent traveling [sic] 20,000 miles to see [a physician]. We believe the findings are so capricious that no reasonable person could have made such findings of fact or conclusions of law. 11 Id. at 218. In Giant Eagle, we also noted it is a rare case where a WCJ s opinion is without a rational basis or scheme so as to be capricious. Id. Unlike the referee s determinations in Giant Eagle, here the WCJ s findings and determinations on the notice issue are well-reasoned and adequately supported by the testimony of Employer s Representative and Claimant himself. The WCJ here properly exercised his role as fact-finder by resolving conflicts in the evidence and choosing to credit the testimony of Employer s Representative over Claimant. As such, we discern no abuse of discretion in the Board s failure to remand the matter for new findings and determinations. Alternatively, Claimant contends Employer had knowledge that he sustained a work-related neck injury in March 2004 because Employer s Representative s file contained an IME report from Dr. Gene Salkind that indicated Claimant applied a lidocaine patch to his neck because of headaches. This argument fails. Section 311 of the Act clearly states that no notice is necessary if the employer has actual knowledge of the occurrence of the injury. See Sheetz v. Workmen s Comp. Appeal Bd. (Firestone Tire & Rubber Co.), 522 A.2d 146 (Pa. Cmwlth. 1987). However, actual knowledge of the event may be insufficient if the claimant does not advise the employer of the relationship between the event and the work activities. City of Phila. v. Workmen s Comp. Appeal Bd. (Wills), 618 A.2d 1162 (Pa. Cmwlth. 1992). 12 Our review of Dr. Salkind s IME report reveals no mention of a March 2004 work incident. R.R. at 122a-23a. To the contrary, the IME report only references Claimant s original low back injury of October 2002. Id. The IME report indicates Claimant utilized a lidocaine patch for his low back area and occasionally applied it to his neck for headaches. R.R. at 122a. Although the IME report indicates Dr. Salkind reviewed an MRI of Claimant s cervical spine from September 2004, the report does not indicate that any findings from the MRI were attributable to any work-related incident. In addition, the report does not indicate that Claimant reported any neck injury or neck pain when he underwent the IME with Dr. Salkind or that he informed Dr. Salkind of the March 2004 work incident; rather, the IME report indicates Claimant complained only of bilateral hip and leg pain as well as low back pain. R.R. at 122a. Moreover, although the IME report indicates Claimant utilized a lidocaine patch for headaches, it in no way indicates Claimant, in fact, had a neck injury of any kind. As such, we reject Claimant s argument that based on the IME report Employer had knowledge that Claimant sustained a work-related cervical injury. Similarly, we reject Claimant s argument that Employer had knowledge of the work injury based on a letter from Claimant s chiropractor, Dr. Matticks. More particularly, a review of Dr. Matticks letter reveals no mention of a work-related neck injury. R.R. at 191a. Rather, Dr. Matticks report only indicates Claimant suffered from low back pain. Id. In short, Dr. Matticks report contains no mention of a cervical injury; thus, the letter cannot constitute notice to Employer that Claimant sustained a work-related neck injury. 13 Claimant also contends he did not know he was injured until he received a letter from Employer s Counsel in June 2005 that indicated Employer did not accept any neck injury. He contends this was the first time he knew his claim was denied, and, therefore, the 120-day notice period did not begin to run until that date. We disagree. The letter referred to by Claimant states, as pertinent (with emphasis added): Please advise if you have any authority to respond to my request for a demand in this matter. Further, please be advised that [C]laimant is being scheduled for an IME at this time. As you are aware, there is no accepted neck injury in this case. ¦ Certified Record, Claimant s Ex. 3. Contrary to Claimant s assertions, there is nothing in Section 311 of the Act that supports the idea that the 120-day notice period does not begin to run until a claimant receives notice that an employer refused to accept an alleged work injury. Rather, as stated above, the notice provision in Section 311 of the Act requires a claimant to give notice to an employer within 120 days after the occurrence of the injury (unless tolled by the discovery rule). Therefore, the notice period begins to run when the injury occurs (unless tolled by the discovery rule), not when the claimant becomes aware that an employer is refusing to recognize an alleged work injury. As such, Claimant s argument fails. As a final point, Claimant argues the WCJ erroneously found: [Claimant s Physician] told ¦ Claimant that he herniated a disc in his neck in September of 2004 ¦. F.F. No. 23. 14 Claimant argues the record reveals Claimant s Physician did not inform Claimant he had a herniated disc until November 2004. Here, our review of the record reveals Claimant s Physician ordered Claimant to undergo an MRI on his cervical spine in September 2004 because, for the first time during this visit, Claimant complained of neck pain. Claimant s Physician testified she reviewed the MRI studies with Claimant in November 2004. While the WCJ s finding indicates that Claimant s Physician informed Claimant that he had a herniated disc in his neck in September 2004, rather than November 2004, such misstatement is harmless. More particularly, even if Claimant s Physician informed Claimant of the nature of his neck injury in November 2004, Claimant s notice of that injury to Employer in June 2005 would be untimely under Section 311 of the Act. In short, any misstatement in the WCJ s finding is harmless. See Verizon Pa., Inc. v. Workers Comp. Appeal Bd. (Baun), 863 A.2d 1247 (Pa. Cmwlth. 2004) (insignificant error considered harmless). Based on the foregoing, we affirm.4 ROBERT SIMPSON, Judge 4 Claimant also argues the WCJ s determination that he did not meet the burden of proof on his claim petition is not supported by substantial evidence. He further asserts the WCJ s decision to reject his Physician s opinions concerning the nature of his cervical injury and its connection to the work is not sufficiently reasoned. Because we agree with the WCJ and the Board that Claimant did not provide Employer timely notice of his alleged work injury within 120 days as required by Section 311 of the Act, we need not address this issue. 15 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Robert Croughn, Petitioner v. Workers' Compensation Appeal Board (Bloomsburg Metal Company), Respondent : : : : : : : : No. 2272 C.D. 2007 ORDER AND NOW, this 30th day of May, 2008, the order of the Workers Compensation Appeal Board is AFFIRMED. ROBERT SIMPSON, Judge

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