Pennsylvania Workers' Compensation Lawyer Blog

Under the Pennsylvania Workers’ Compensation Act, an injured worker must give notice of his or her injury within 120 days of the injury. If this notice is not given within 120 days, a claim petition for workers’ comp benefits is barred.

When an injury is not known to be related to work, this time period may be extended. This is known as a “discovery rule.” In that case, notice must be given within 120 days of when the injured worker knows he or she has suffered a work injury.

A recent decision by the Commonwealth Court of PA, The Bullen Companies v. Workers’ Compensation Appeal Board (Hausmann), explored this issue. In this case, the injured worker was employed at a chemical plant for 17 years. The worker started getting treatment for kidney ailments in 2002, but did not notify his employer of a work injury until 2004, which the employer said was more than 120 days after the “injury” was suffered.

The Workers’ Compensation Judge (WCJ) found for the Claimant, and granted the Claim Petition. The Workers’ Compensation Appeal Board (WCAB) affirmed. The Commonwealth Court of PA also affirmed.

Importantly, the Commonwealth Court of PA, citing language from a decision of the Supreme Court of Pennsylvania, stating that the, “discovery rule ‘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 she is injured and that her injury is possibly related to her job.’” Therefore, the 120 day period within which to give notice did not start until the injured worker was advised by a doctor that she had a work-related injury.

As we explained in a recent blog entry, under the Pennsylvania Workers Compensation Act, Section 440(a) to be exact, reasonable attorney fees are to be paid by the PA workers’ compensation insurance carrier, unless the workers’ comp insurance carrier proves it had a reasonable basis to contest the claim. By design, this was to be the rule; the exception would be when attorney fees were charged to the injured worker.

Unfortunately, this is not how things work in practice. In Costa v. Workers’ Compensation Appeal Board (Carlisle Corp.), decided by the Commonwealth Court of Pennsylvania on October 14, 2008, the workers’ comp insurance carrier was found to have a reasonable basis to contest a claim when their own doctor agreed a work injury had taken place.

How could the Court accomplish such a feat, you ask? Well, the workers’ compensation insurance carrier’s doctor felt the injured worker had suffered a neck strain, while the injured worker’s doctor felt he had herniated a disc in the cervical spine (this would help explain why the injured worker had neck surgery after the work injury). Thus, the Court felt that because the parties’ medical experts disagreed what diagnoses were related to the work injury, the workers’ comp insurance carrier had a reasonable basis to contest the injury.

From our position, as lawyers who represent injured workers in PA, the decision by the Court seems completely unfair. There was no dispute a work injury took place, yet the Court says the fact that the claim was entirely denied was “reasonable.” This, unfortunately, sends a bad message to employers and workers’ compensation insurance companies in Pennsylvania, stating loud and clear that denial of claims can generally be done without any cost or retribution to the employer or the workers’ comp insurance carrier. Is this the message we want sent while injured workers lie in the hospital beds, unable to work, without any income?