Often, a work injury in Pennsylvania is not a sudden occurrence – not a fall, or lifting an item, or a car accident, but instead it is “cumulative trauma,” an injury that takes place over time. Perhaps someone who does data entry or assembly work, doing repetitive motions with their hands, develops carpal tunnel syndrome or ulnar neuropathy. Maybe a construction worker, or factory worker, suffers low back problems from years of heavy lifting. Cumulative trauma injuries can take many forms. The workers’ compensation insurance carriers in PA routinely deny such claims, but, do not be misled, cumulative trauma injuries are every bit as real, and those who suffer them every bit as deserving of benefits, as any other work injury in Pennsylvania.
Which employer is responsible, and the timing of notice are two of the major issues in these cases, and both were present in A & J Builders, Inc. v. Workers’ Compensation Appeal Board (Verdi), recently decided by the Commonwealth Court of Pennsylvania. Logic might suggest the responsible employer is simply the last employer, since, with cumulative trauma, every day is a new injury, the date of injury is usually the last day worked. But, as we always see in PA workers’ comp, the easy explanation is not always the correct one.
The injured worker in Verdi was a carpenter. He worked for A & J Builders, Inc. from 2004 to 2007. During this time, he developed right knee pain. By the time he left A & J, the right knee caused him chronic pain. Regardless, he then worked three days in 2008 for another contractor before being laid off. In March, 2009, Claimant saw a new doctor and was diagnosed with “chronic repetitive work-related chondral wear in the patellofemoral joint on his right knee.” This was the first time the injured worker was actually told the problem was related to work. Notice of the work injury was not provided until a Claim Petition was filed in July, 2009 (well over the 120 day period within which notice of a work injury is typically required).
The Workers’ Compensation Judge (WCJ) found that notice was timely, after Claimant was told that he had a work injury, and that the work at A&J materially aggravated the underlying problems in the right knee. Since the injured worker only was employed by the other contractor for three days, the WCJ found that that work did not materially aggravate the condition. As such, the WCJ granted the Claim Petition against A&J. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).
On further appeal, Commonwealth Court of Pennsylvania affirmed. The Court found notice timely under the “discovery rule.” In citing prior case law, the Court explained, “[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 to [his] job.” In other words, until a doctor actually told the injured worker that the work duties had caused his condition, the time to give notice did not yet start.
As to the finding that the responsible employer was A&J, rather than the last contractor, the Court observed that the credibility determinations of a WCJ cannot be disturbed, and that a WCJ is permitted to accept or reject the whole, or any part, of the testimony, including that of expert witnesses. Because there was testimony that the three days of work at the last contractor did not materially aggravate the condition, the finding against A&J was proper.