Requirement to Give Notice of a Work Injury in PA is Triggered With Knowledge of Injured Worker

“Notice” of a Pennsylvania work injury is an issue which we have previously addressed in this blog.  Essentially, an injury must be reported to the employer within 21 days to have benefits date back to the first day, and within 120 days of the injury to have an entitlement to PA workers’ compensation benefits at all.  Often, the disputed aspect of a case is whether the notice provided to an employer is sufficient under the Pennsylvania Workers’ Compensation Act.

Importantly, proper notice does not mean that an employee must give a report with specifics or certainty.  What matters is whether the notice provided makes the employer aware that there is a possibility of a work-related injury.  Recently, the Commonwealth Court of Pennsylvania dealt with this very issue in City of Pittsburgh and UPMC Benefit Management Services, Inc. v. Workers’ Compensation Appeal Board (Flaherty).

Here, the injured worker (Claimant) was a firefighter for 16 years.  She was diagnosed with breast cancer in 2004, and was no longer able to continue performing the required duties of the position.  After Act 46 was enacted in 2011, creating a presumption dealing with cancer and firefighters, Claimant received a letter from her union describing the benefit to the new law.  Shortly thereafter, she filed a Claim Petition giving her employer notice that her condition may have been work-related.  She did not receive an opinion from her doctor, that her condition was, in fact, related to work, until a few months later.

The Workers’ Compensation Judge (WCJ) granted the Claim Petition.  The WCAB remanded back to a WCJ for clarification regarding whether the notice was provided within 21 days or not (there was no issue as to whether it was within 120 days).  The remanded decision was appealed to the Commonwealth Court of Pennsylvania.  For our purposes, we are more interested in the discussion of when the requirement of giving notice is triggered (as opposed to the issue of 21 days versus 120 days).

Cancer, unlike a “work injury,” is actually considered an “Occupational Disease.”  As the Commonwealth Court explained here, citing existing case law:

“In an occupational disease case, the notice period begins to run against a claimant when she has ‘(1) knowledge or constructive knowledge (2) of a disability (3) which exists, (4) which results from an occupational disease, and (5) which has a possible relationship to her employment. . . .’”   

After considering the law, and the evidence, the Court said that “uninformed suspicion” regarding whether a disease is related to work is not enough to trigger the start of either the 21 or the 120 day periods.  More specifically, the Court observed that, “In other words, a claimant does not ‘know’ of the possible relationship between a disease and work until she is so informed by a medical expert. To hold otherwise would require a claimant to ‘sort through her many symptoms unassisted and essentially diagnose herself.’”

The mere knowledge that Act 46 was enacted, and that a cancer presumption now existed for firefighters, did not create knowledge that her disease was related to work (and therefore did not start the clock ticking to provide notice to the employer).  That knowledge would come from a doctor.  Once the Claimant was aware of the presumption, she acted with “reasonable diligence,” obtaining a workers’ compensation attorney and filing a Claim Petition.