Injured Worker in Pennsylvania Must Give Notice of Work Injury Within 120 Days

Under the Pennsylvania Workers’ Compensation Act, an injured worker has 120 days to provide notice of a work injury to his or her employer.  If notice is not given within this time, a Claim Petition may be barred.  The time period for giving notice can be extended where the work injury, or its relation to work, is not immediately apparent to the injured worker (“The Discovery Rule”).

Recently, in The Hershey Company v. Woodhouse (Workers’ Compensation Appeal Board), the Commonwealth Court of Pennsylvania looked at what constitutes sufficient “notice” to meet the legal requirement.  Here, the injured worker had a history of diabetic neuropathy and had developed a right diabetic foot ulcer in June of 2017. On November 6, 2017, the injured worker passed out at work and was taken to a hospital.  Subsequently, the injured worker sent an e-mail to his employer that he had emergency foot surgery.  A below-the-knee amputation was performed on the right leg.  The e-mail did not mention any relation to work.

On December 1, 2019, Claimant filed a Claim Petition, alleging that “he suffered a work injury on November 6, 2017, consisting of an aggravation of a diabetic foot ulcer and a below-the-knee amputation of his right leg.”

The Claim Petition was litigated and the Workers’ Compensation Judge (WCJ) granted the Petition, awarding “specific loss benefits” for the loss of his great toe and remaining toes of his right foot, but denying “specific loss benefits” for the below-the-knee amputation.  In his decision, the WCJ found that notice was a “close call,” but that:

“. . .  given this evidence from Claimant, and Claimant’s reminder that the Act’s notice requirement is to be liberally construed, it will be concluded that an adequate basis for Employer to have had constructive notice of Claimant suffering a work injury to his right foot existed by November 2017.”

On appeal, the Workers’ Compensation Appeal Board (WCAB) reversed the WCJ and awarded “specific loss benefits” for the below-the-knee amputation, but otherwise affirmed the decision of the WCJ.  With regard to the issue of notice, the WCAB said:

“The WCJ acknowledged that the issue in this matter was close, but he made a factual determination that [Employer] had constructive notice of Claimant’s right foot condition and of the relationship between his foot condition and his employment duties as of Claimant leaving work on November 6, 2017, given [Employer’s] knowledge of the right foot ulcer and blister[,] and Claimant’s restrictions and his need for alternative footwear while on his feet, as well as [Employer’s] access to Claimant’s medical records.”

Upon further appeal, the Commonwealth Court of PA reversed the decision of the WCAB (and the WCJ), finding that proper notice was not given.  The Court found significant the testimony of the injured worker that he knew he suffered a work-related injury in November 2017 (ie: knew the condition was related to the work duties), that he knew he was (under Employer’s work rules) to immediately report any suspected work injury, and that his e-mail to the Employer within the 120 days did not state (in any way) that his injury or condition was caused or aggravated by work.  As such, the first sufficient notice of the November 2017 work injury was the Claim Petition, filed in December 2019, well beyond the allotted 120 days.

From litigating PA workers’ compensation cases for well over 30 years (as is the case with both attorneys at Brilliant & Neiman LLC), we know that questions of “notice” are quite fact-specific.  This is yet another reason why injured workers should make sure the attorney they hire has the experience and qualifications needed for successful litigation.  No injured worker wants his or her case handed down to an inexperienced junior attorney; since the only attorneys at our firm are the partners, that is never a risk at Brilliant & Neiman LLC.