Crown Services, Inc. v. Workmen's Compensation Appeal Board

682 A.2d 1333, 1996 Pa. Commw. LEXIS 388

• Court: Commonwealth Court of Pennsylvania
• Decided: September 18, 1996
• Status: Published

Opinions

DOYLE, Judge.

Crown Services, Inc. (Employer) appeals from an order of the Workmen’s Compensation Appeal Board (Board) which affirmed the decision of the Workers’ Compensation Judge (WCJ)¹ granting William F. Beck (Claimant) benefits for a work-related injury to his lower back.

On May 13, 1987, Claimant sustained a work-related injury when three of the fingers on his left hand were caught in a piece of heavy machinery, which eventually required the partial amputation of all three of those fingers.² As a result of this injury, Claimant immediately began to receive temporary total disability benefits in the amount of $120.33 per week from the date of his accident. On July 29, 1988, Employer filed a modification petition³ in which it alleged that Claimant had suffered a specific loss to the three fingers on his left hand. Although the WCJ found that the first phalanges of Claimant’s three fingers had in fact been amputated, he denied the modification petition by an order dated June 8, 1992, on the grounds that Claimant continued to suffer from a residual disability to his left hand. In a decision dated February 19, 1993, the Board reversed the Wed’s decision and granted the modification petition, since the only medical testimony presented before the WCJ demonstrated that any> residual disability to Claimant’s left hand was a natural consequence of the amputation and did not constitute a separate injury-

On March 16,1990, while Employer’s modification petition was still pending, Claimant filed a separate claim petition in which he alleged that in addition to the injuries he sustained to his left hand due to the May 13, 1987 accident, he also sustained an injury to his lower back. In a decision dated August 20, 1992, the WCJ denied this claim petition on the sole grounds that Claimant had not given notice of his alleged back injury within 120 days as required by Sections 311 and 312 of the Act, 77 P.S. §§ 631-632. The Board again reversed the WCJ on February 19, 1993, concluding as follows:

Section 312 provides that the notice [requirement of Section 311] must ‘inform the employer that a certain employee received an injury described in ordinary language ...’ This does not itself require claimant to specify what physical injuries were suffered or could have been suffered. Reading that meaning into the Act would require something more than what ‘ordinary language’ can reasonably describe.

(Board’s 2/19/93 Decision at 2.)

The Board remanded the matter to the WCJ to determine if the claimant’s lower back injury was actually causally related to the accident on May 13, 1987, an issue which had been raised but not determined by the WCJ.

On remand, the WCJ found that Claimant’s hack injury was in fact the result of the May 13, 1987 accident. Therefore, in a decision dated March 4, 1994, the WCJ granted the claim petition and again awarded temporary total disability benefits to Claimant. In reaching this decision, the WCJ found the medical testimony of Claimant’s chiropractor, Dr. Valerie Zipay, to be credible and unequivocal. Dr. Zipay testified that Claimant suffered from “chronic moderate cervical facet joint sclerosis, cervical disc degeneration, lumbar restriction of movement, and lower extremity radiculitis.” (Wed’s 3/4/94 Decision at 4, Finding of Fact (F.F.) No. 5.) Dr. Zipay further concluded that Claimant’s back condition was directly related to the May 13, 1987 accident. To rebut this testimony, Employer presented the medical reports from Dr. Jeffrey A. Cappucio and Dr. John McAl-lister which indicated that Claimant’s back injury was the result of a preexisting degenerative condition and was not caused by the May 13, 1987 accident. However, the WCJ rejected these reports and the conclusions contained in them as not credible and not believable.

Employer filed an appeal with the Board in which it again argued that Claimant had failed to give timely notice of his back injury. Employer additionally argued that even if timely notice had been given by Claimant, the Wed’s finding that Claimant had sustained a work-related injury to his back was not supported by substantial evidence, specifically, by unequivocal medical evidence. By an order dated April 12, 1994, the Board affirmed the Wed’s decision. Employer’s appeal to this Court followed.

On appeal, Employer raises the same issues as it raised below: (1) whether Claimant is precluded from receiving benefits for the injuries he sustained to his back because Employer was not notified of the occurrence of such injuries within 120 days after his work-related injury as required under Sections 311 and 312 of the Act; and (2) whether the Wed’s conclusion that Claimant had suffered a work-related injury was supported by substantial evidence in the record.

Regarding Employer’s first argument, Sections 311 of the Act states in pertinent part:

Unless the employer shall have knowledge of the occurrence of injury, or unless the employe or someone in his behalf, or some of the dependents or someone in their behalf, shall give notice thereof to the employer within twenty-one days after the injury, no compensation shall be due until such notice be given, and, unless such notice be given within one hundred, and twenty days after the occurrence of the injury, no compensation shall be allowed.

77 P.S. § 631 (emphasis added.)

Also Section 312 of the Act provides:

The notice referred to in section three hundred and eleven shall inform the employer that a certain employee received an injury, described in ordinary language, in the course of his employment on or about a specified time, at or near a place specified.

77 P.S. §§ 632 (emphasis added).

Employer does not dispute that it had notice of the accident and the injury to Claimant’s hand within the 120-day period required by Section 311. Rather, Employer contends that that notice was insufficient for the purpose of informing it of any injury which Claimant might have received to his lower back as a result of the same incident. Employer maintains that any injury to Claimant’s back was separate and distinct from the injury to his hand, even if the injuries arose from the same accident of May 13, 1987, and that to be eligible to receive additional benefits for his back injury, Claimant was required to provide a specific notice of that injury.

Because Claimant’s accident on May 13, 1987, was unwitnessed, his testimony was the only testimony of the actual accident.. He testified as follows:

DIRECT EXAMINATION

Q And of course that’s another matter, but on that date, will you tell Referee Kelsey if on that date you sustained any other injuries than to your left hand?

A Oh, yeah. I hurt my back. I didn’t find out until later that my neck also went out of line a little bit.

Q On May 13, 1987, you say you hurt your back. What portion of your back?

A My lower back. When I walk or stand in a still position, I get sharp pains running down my legs.

Q On that date, can you tell Referee Kelsey more specifically how it was that you did injure your back?

A Well, see, the machine got stuffed up and they had a couple — they cut a hole in the machine and they put in plastic, thick plastic, around it plus bolts. So I took the bolts off and I was reaching in and somebody went over and turned the machine on .1 I started pulling the stuff out and all of the sudden, somebody yelled my name and as I turned, they had a wheel in there, almost about as long as this table, it had little spikes all over it to make the materials come through. And here when they called my name, I must have pushed my hand in further or something. The wheel was going around and it cut the tips of my fingers.

Q You turned your body in a jerking fashion?

A My whole body turned. The shock of it. I was in such pain that I went right to the floor.

Q You didn’t work for Crown after that day; is that correct?

A No, no. I never worked for them no more.

Q Is it fair to estimate you never worked anywhere since?

A No, I haven’t worked anyplace.

Q When did you first seek medical treatment for your back problems?

A Well, I tried to get it through Dr. Imbriglia, but he says he wasn’t a back specialist.

Q Hold on. Let me just sort of, if I can, go a little bit slowly here. You went to see Dr. Joseph Imbriglia who is a hand specialist; is that correct?

A Yeah. Since he was taking care of me.

Q He has given testimony in this case. You saw him for your hand.

A Yes.

Q Is that correct?

A Yes.

Q Did you see him immediately after this happened, or was it some lapse of time? If you remember.

A It was during the time that I was getting my hand rehabilitated.

Q What did you tell Dr. Imbriglia at that time?

A I told him I was having back pains and they were going down into my legs and stuff. He said he wasn’t a back specialist. Therefore, he recommended three other physicians on the North Side. So I took their names and everything. I took them home and my wife called them up to try to make an appointment for me. None of them would take Workmen’s Compensation. So then, I eventually went to a doctor on the South Side. What was his name? I can’t remember.

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CROSS-EXAMINATION

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A I forget what the man’s name was that was in charge and that there. But I had these pillow fillings all around my hand so the blood wouldn’t drip. He said, what’s the matter and I said, I cut my fingers or something like that. And he said, we’ll get somebody to get you up to the hospital right away. They got one of the maintenance men to run me up to the Allegheny.

(Notes of Testimony at 10-12,17.)

While the first “employer’s report of occupational injury” filed with the Bureau of Workers’ Compensation mentions only the injured left hand of Claimant and three middle fingers (“tops of fingers all cut up”), this report was completed by Employer’s personnel coordinator who was not on the scene of the accident. Furthermore, Claimant himself testified that he was not even aware of the ipjury to his back until sometime after the accident (see testimony recited above) and he then called it to the attention of Dr. Joseph Imbriglia, the treating physician.⁴ An amended “employer’s report” was filed with the Bureau in March of 1988 which does make reference to Claimant’s back injury.

In Chapley v. Workmen’s Compensation Appeal Board (USX Corp.), 164 Pa.Cmwlth. 202, 642 A.2d 597, 599, petition for allowance of appeal denied, 538 Pa. 649, 647 A.2d 904 (1994), we held that “Section 311 does not apply in cases where a separate injury is discovered which has arisen from the same set of circumstances for which an employer has been timely notified and has had a full opportunity for investigation.”⁵ Employer, though, relying on our recent decision in Pennsylvania Mines Corporation/Greenwich Collieries v. Workmen’s Compensation Appeal Board (Mitchell), 166 Pa.Cmwlth. 58, 646 A.2d 28 (1994), argues that Section 311 does apply under the facts of this case.

In Pennsylvania Mines, the claimant had sustained a previous (1980) work injury to his back and had received intermittent compensation for this injury under sporadic supplemental agreements and final receipts; the maximum total disability rate paid for this injury was $242 per week. The claimant was back to work when, on February 1, 1988, he lacerated his left thumb and index finger. He received total disability benefits for this second injury at the then maximum allowable rates ($377 per week), until he signed a final receipt dated April, 15, 1988. Approximately one month later the claimant again began receiving benefits for a recurrence of his first injury — the injury to his back — pursuant to a supplemental agreement dated May 25, 1988. Then, on February 26, 1991, the claimant filed a petition for review alleging that he had suffered a second discrete back injury at the time of his second 1988 injury when he lacerated his thumb.

The referee set aside the final receipt relating to the claimant’s hand injury, finding that Claimant had sustained both a hand injury and a back injury on February 1, 1988, and awarded benefits for the back injury only, at the higher rate of $377, without making a finding of whether or not Employer had received notice under Section 311. The Board affirmed. This Court held that Section 311 did apply and that Employer might have been misled by the notice of compensation payable for the hand injury since it might have failed to alert Employer, under those circumstances, that there was a second distinct back iiijury suffered by the claimant on February 1, 1988. We vacated the decision of the Board and remanded the case for a determination of whether the claimant had given sufficient notice of his back injury under Section 311 of the Act. Significantly, we did not address the issue of the sufficiency of the notice that is required by Section 311 in our decision in Pennsylvania Mines, the precise question currently at issue in the present appeal.

Therefore, while we agree with Employer that Section 311 is applicable to this case, our inquiry does not end there; we must also determine the adequacy of the notice that Claimant gave to Employer. In the present appeal, unlike Pennsylvania Mines, there was only one accident, and it is the sufficiency of the notice after that accident which is at the core of the appeal.

To determine the required content of a Section 311 notice, we must look at Section 312 of the Act, 77 P.S. § 632, which states: “[t]he notice referred to in section three hundred and eleven shall inform the employer that a certain employe received an injury, described in ordinary language, in the course of his employment on or about a specified time, at or near a place specified.” (Emphasis added.)

The term “injury” is defined, in pertinent part, in Section 301(c)(1) of the Act as:

an injury to an employe, regardless of his previous physical condition, arising in the course of his employment and related thereto, and such disease or infection as naturally results from the injury or is aggravated, reactivated or accelerated by the injury ....

77 P.S. § 411(1) (emphasis added). The term “injury” has been previously interpreted as encompassing “all work-related harm to an employee ‘regardless of his previous physical condition.’ ” Pawlosky v. Workmen’s Compensation Appeal Board, 514 Pa. 450, 458, 525 A.2d 1204, 1209 (1987) (quoting Section 301(c) of the Act, 77 P.S, § 411(1)). In this respect, we interpret this language liberally and in favor of Claimant in accordance with the remedial and humanitarian purpose underlying the Act. See Jackson Township Volunteer Fire Co. v. Workmen’s Compensation Appeal Board (Wallet), 140 Pa.Cmwlth. 620, 594 A.2d 826 (1991).

We further find that for the purposes of Sections 311 and 312 of the Act, the term “injury” includes any medical malady reasonably associated with the work place incident or injury, as well as any subsequent causally related medical problems stemming from that injury.

We believe, and so hold, that in this case the injury to Claimant’s back was clearly a further manifestation of the one accident and did not constitute a “separate injury” for notice purposes. By receiving notice of Claimant’s accident, Employer was on notice for both the injury to Claimant’s hand and the injury to his back. At the time of the accident, Employer was free to have Claimant examined by its own doctors and conduct tests to determine the extent of any injuries he might have suffered. See id. Unlike the claimant in Pennsylvania Mines, the Claimant in the instant case did not have a past history of back ailments or previous workers’ compensation claims which would have misled Employer so that it would not recognize that the back injury constituted a new work-related injury.

We cannot expect a claimant whose fingers have just been so severely lacerated in an accident that they have to be partially amputated to recite with great detail to the employer’s personnel director every other part of his body which is injured, especially if the pain associated with that injury does not exhibit itself until a later time. If we were to accept Employer’s position, claimants would be required to document with medical precision the parameters of their work-related injuries and provide their employers with this information within 120 days of their injuries, or waive any entitlement to compensation forever. While claimants may properly be required to provide proof of the full extent of their injuries at a later hearing before a the compensation authorities, the notice requirements of the Act simply do not impose such an onerous burden upon injured employees. Accordingly, we reject Employer’s first argument that Claimant did not provide timely notice of the injury to his back resulting from his work-related accident of May 13, 1987.

Employer’s second argument is that the WCJ’s conclusion, that Claimant had suffered a work-related injury to his back, was not supported by substantial evidence.⁶ In the present case, Claimant had the burden of proving that his back injury arose in the course of his employment and was related to that employment. See Rossi v. Workmen’s Compensation Appeal Board (City of Hazleton), 164 Pa.Cmwlth. 233, 642 A.2d 1153, petition for allowance of appeal denied, 539 Pa. 660, 651 A.2d 545 (1994). Having reviewed the record in its entirety we must agree with the WCJ that Claimant met this burden.

The WCJ is the ultimate fact finder in workers’ compensation cases, having the sole authority to assess the credibility of witnesses and resolve conflicting testimony. Bethenergy Mines, Inc. v. Workmen’s Compensation Appeal Board (Skirpan), 531 Pa. 287, 612 A.2d 434 (1992). The WCJ found the testimony of Claimant’s doctor, Dr. Zi-pay, to be credible and accepted that testimony over the medical reports offered into evidence by Employer.⁷ Notwithstanding the fact Employer disagrees with Dr. Zipay’s medical opinion in this case, Dr. Zipay testified that Claimant had suffered an injury to his back which was directly related to the May 13, 1987 work-related accident. Viewing her testimony as a whole, we agree with the WCJ that Dr. Zipay’s testimony was unequivocal and constituted substantial, competent evidence supporting the grant of benefits to Claimant.⁸ See ARMCO, Inc. v. Workmen’s Compensation Appeal Board (Carrodus), 139 Pa.Cmwlth. 326, 590 A.2d 827 (determination of whether medical testimony is unequivocal is a question of law and requires considering expert’s testimony as a whole), petition for allowance of appeal denied, 529 Pa. 636, 600 A.2d 955 (1991).

Accordingly, we affirm.

ORDER

NOW, September 18, 1996, the order of the Workmen’s Compensation Appeal Board in the above-captioned matter is hereby affirmed.

SMITH, J., dissents.

1 . "WCJs” were referred to as "referees” prior to the 1993 amendments to the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 701. See Act 44, Act of July 2, 1993, P.L. 190. Some of the decisions relevant to this case were made prior to the effective date of the 1993 amendments, and thus, were technically made by a "referee” and not by a "WCJ.” However, since the final decision at issue on appeal in the present case was made in March of 1994, well after the effective date of Act 44, we will refer to the WCJ as such throughout this opinion.

2 . According to Claimant’s testimony, Claimant had been assigned by Employer to work on a project for the American Foam Latex Company at the time of the accident. Immediately after the accident occurred, Claimant informed his supervisor at the job site and was then transported to Allegheny General Hospital by a maintenance man. Two days after the accident, on May 15, 1987, Claimant reported the accident to Employer's personnel coordinator, Kathleen Bober Chronowski. At that time. Claimant only reported having sustained an injury to his hand, and did not mention the manifestation of pain in his back until March of 1988, approximately ten months after the accident.

3 . Although Employer’s modification petition is not directly at issue in this appeal, it is important for a full understanding of the facts of the present case.

4 . Dr. Imbriglia is the physician who first saw Claimant in the emergency room of the Allegheny General Hospital immediately following the accident.

5 . In Chapley, the claimant had sustained a work-related physical injury and timely notice was given to his employer. The claimant later developed a psychological disability which allegedly resulted from the initial work-related accident, but which was unknown to the claimant at that time. Subsequently, but more than 120 days after the accident, the claimant informed his employer of his psychological disability. The WCJ and the Board denied benefits to the claimant on the grounds that he had failed to give timely notice under Section 311 of the Act. We reversed, holding that Section 311 of the Act is inapplicable where the employer has been given timely notice of the accident which caused the claimant's disability and had a full opportunity to investigate.

6 . Substantial evidence is such relevant evidence that a reasonable person might accept as adequate to support a conclusion. Grabish v. Workmen's Compensation Appeal Board (Trueform Foundations, Inc.), 70 Pa.Cmwlth. 542, 453 A.2d 710 (1982).

7 . We note that under the Walker rule, this Court has held that a medical report, even if unobjected to, does not constitute substantial evidence and cannot support an independent finding of a WCJ. See McCray v. Workmen’s Compensation Appeal Board (Preschool Development Programs, Inc.), 167 Pa.Cmwlth. 402, 648 A.2d 348 (1994), petition for allowance of appeal denied, 540 Pa. 608, 655 A.2d 995 (1995); Flanagan v. Workmen's Compensation Appeal Board (U.S. Steel Corp.), 143 Pa.Cmwlth. 92, 598 A.2d 613 (1991).

8 . Employer suggests that Dr. Zipay did not make as thorough an investigation of Claimant’s entire medical history as was required, and made unwarranted assumptions and inferences in reaching her medical conclusion. However, we believe these criticisms relate to the weight of the evidence and do not detract from the competency of Dr. Zipay's testimony. This Court has previously held that the mere fact that a medical witness admits to uncertainty, doubt or a lack of information with respect to certain medical details does not mean that the testimony of that witness is equivocal unless the witness recants his or her original medical opinion regarding the claimant. See Philadelphia College of Osteopathic Medicine v. Workmen's Compensation Appeal Board (Lucas), 77 Pa.Cmwlth. 202, 465 A.2d 132 (1983). Once Claimant established his prima facie case, Employer had the burden to rebut that case through its own medical evidence. By failing to present any medical testimony, and instead relying solely on cross-examination and medical reports, Employer would have prevailed in this case only if the WCJ rejected Dr. Zipay's testimony.