Penske Logistics v. Workers' Compensation Appeal Board

132 A.3d 1029, 2015 Pa. Commw. LEXIS 591
CourtCommonwealth Court of Pennsylvania
DecidedJune 17, 2015
StatusPublished
Cited by5 cases

This text of 132 A.3d 1029 (Penske Logistics v. Workers' Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Penske Logistics v. Workers' Compensation Appeal Board, 132 A.3d 1029, 2015 Pa. Commw. LEXIS 591 (Pa. Ct. App. 2015).

Opinions

OPINION BY

Judge MARY HANNAH LEAVITT.

Penske Logistics and Gallagher Bassett Services, Inc. (collectively, Employer) petition for review of an adjudication of the Workers’ Compensation Appeal Board (Board) granting compensation to Edwin Troxel (Claimant). In doing so, the Board affirmed the decision of the Workers’ Compensation Judge (WCJ) that Claimant met his burden under the Workers’ Compensation Act1 (Act) of proving that he gave timely notice to Employer of his work injury by telling another employee that he fell. Concluding that this communication did not satisfy the notice requirements of the Act and that Claimant’s medical evidence did not prove that this fall caused a compression of Claimant’s cervical nerve roots, we reverse.

[1031]*1031Background

In January 2004, Claimant began working at Employer’s warehouse and trucking facility as a “yard jockey.” His. duties required him to drive trucks around the facility for loading and unloading. On February 3, 2011, Claimant fell on ice at the facility. In August 2011, Claimant sought treatment for pain and weakness in his right , arm. In December 2011, Claimant filed a claim petition, seeking medical compensation for disc herniations at C6-7 and C8-T1 and asserting that the hernia-tions were caused by his fall in February, Claimant’s petition alleged that he gave oral and written notice of his fall and injury to Employer on the day it occurred. Employer’s answer denied the allegations.

The matter was assigned to a WCJ, who conducted hearings at which both parties appeared. At the outset, Claimant orally amended his claim petition to seek ongoing total disability benefits as of January 16, 2012, when his neck surgery made it impossible to work. Claimant also amended his petition to request an award of disfigurement benefits for the surgical scars on his neck. In response, Employer amended its answer to deny liability for Claimant’s disability or disfigurement.

Claimant testified about his February 3, 2011, fall at work. At approximately 6:30 a.m. on that day he parked a truck at the loading area. While walking around the truck, Claimant fell on ice, hitting his back, shoulder and arm. He went inside the building and told Brian Yoder, a co-worker who worked in the shipping department, that he had fallen. Yoder gave Claimant an injury report form and told him to give it to his supervisor.

Claimant explained that his supervisor is Julie Troxel, his daughter-in-law. Because of this family relationship, Claimant does not report work injuries to her, but to Troxel’s supervisor. In February 2011, Employer was in the process of replacing supervisors, leaving Claimant unsure about the identity of the person to whom he should give the report. In any case, the incident occurred very early in the morning before the supervisors had reported to work. Accordingly, Claimant slipped the completed injury report under the. door of the office used by the manager. Claimant testified that on that same day he spoke with Troxel about his fall.

Claimant continued to work fulltime. At some point, Claimant developed pain in his right arm, which worsened over time. In June 2011, Claimant injured his ankle at work and missed work for a month. When Claimant returned to'work in August 2011, he decided to see a doctor for his arm pain.

In late August 2011, Claimant informed a manager, John Cusatis, that he needed medical treatment for his February 2011 injury.2 Claimant asked Cusatis for the workers’ compensation claim number so he could give it to the doctor. Cusatis replied that there was nothing about the incident in Claimant’s file. Claimant then spoke to Lisa Epler, who handles workers’ compensation claims for Employer, and she told him that the only record of a fall by Claimant was one that occurred in February 2010. Epler told Claimant that he needed to have his supervisor send her a report of the February 2011 fall. Claimant testified that he located a copy of the February 2011 injury report at his home and gave it to Cusatis on November 30, 2011. Cusatis had Julie Troxel enter the information into the computer system but advised Claimant [1032]*1032that it was too late to report a February 2011 incident.

Claimant acknowledged that he had suffered a prior injury while working "for a different employer that required surgery to his right shoulder and neck in 2001. However, Claimant returned to work after that surgery and did not receive treatment for his neck again until August of 2011.

Claimant offered into evidence a form entitled “Supervisor’s Report of Injury” dated February 3,2011. Reproduced Record at 160a-61a (R.R. -). The' first page is to be completed by a supervisor, and the second page is to be completed by the employee. Claimant filled- out both pages of the form, signed and dated it. Claimant wrote that he had fallen and hit his right elbow, head and neck. Claimant acknowledged that a supervisor had not signed the form in the designated space.

The record showed that Claimant has reported several workplace injuries over the course of his employment with Employer. In 2005, he reported a left foot injury. In 2007, he reported a right knee injury. In February 2010, he reported that he fell on ice and twisted his left arm. On June 27, 2011, he reported an injury to his right ankle at work, which required treatment at the emergency room. Claimant reported each one of these injuries in writing to Troxel, to Epler or to another supervisor.

' At the final hearing, the WCJ viewed Claimant’s surgical scars. The WCJ described a diagonal scar on the front of Claimant’s neck as a faint white line five or six inches long running from the top of his neck to his sternum. The WCJ also described a vertical scar on the back of Claimant’s neck as an indented straight line three to four inches long running from his hairline to the base of his neck.

Claimant presented the deposition testimony of Raymond Truex, Jr., M.D., a board certified neurosurgeon. Dr. Truex’s physician’s assistant saw Claimant on October 24, 2011, for complaints of pain as well as tingling and numbness in his right arm and "fingers. Claimant had already seen his family doctor, who ordered an MRI in August 2011, which Dr. Truex reviewed. It showed Claimant’s 2001 cervical fusion at C3-4 and C5-6. The MRI also showed bulging discs at C6-7 and C7-T1 with narrowing of the opening through which the C-7 and C-8 nerve roots pass from the spinal column.' Dr. Truex testified that the bulging discs and narrowed opening were caused by Claimant’s long term degenerative disc disease. Dr. Truex opined that Claimant’s 2001 surgery may have accelerated the degenerative changes present from C6 to Tl.

In November 2011, Dr. Truex ordered an EMG that confirmed that Claimant’s nerve roots at C-7 and C-8 were impinged, causing Claimant’s right arm and hand symptoms. On December 7, 2011, Dr. Truex examined Claimant. Based on this examination, Claimant’s medical history, the MRI and EMG test results, Dr. Truex diagnosed Claimant with preexisting disc degeneration compressing the nerve roots at C-7 and C-8. Because Claimant reported that he had been asymptomatic before falling at work on February 3, 2011, Dr. Truex opined that “some injury to [Claimant’s] nerve roots must have occurred at the time of the fall” and caused his symptoms. R.R. 179a.

On January 17, 2012, Dr. Truex did surgery at C6-7 to free the nerve root. On March 27, 2012, Dr.

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Bluebook (online)
132 A.3d 1029, 2015 Pa. Commw. LEXIS 591, Counsel Stack Legal Research, https://law.counselstack.com/opinion/penske-logistics-v-workers-compensation-appeal-board-pacommwct-2015.