Employers like to tell their employees that if they did not give notice of a work injury within 24 hours, there is nothing the employer can do for them. This type of workplace policy is not in step with the law. Employers will often tell their employees that any injury not reported “right away” will not be considered. This could not be further from the truth.
Section 311 of the Pennsylvania Workers’ Compensation Act, 77 P.S. Section 631, provides that notice is required within 120 days of injury. So, there is the general rule. You have four months to provide notice to your employer that you’ve been injured at work, although compensation is not payable until notice is given. You might ask why someone would be given that much time to give notice of a work injury? Well, injured workers would say that if they reported every instance where they were injured on the job, or if they reported every time they felt some type of pain while working, there would certainly be many more claims than necessary. Commonly, the only reason injured workers report an injury is because the pain that they felt didn’t go away as expected. In other words, many injured workers claim that when they injured their back they just figured that they pulled a muscle and that it would get better relatively soon. It was only after the pain continued to get worse, week after week, that they finally told their employer. As you can guess, when an injured worker approaches their employer to tell them that he or she was injured three weeks ago and never said anything, the employer certainly is not happy and might be suspicious. However, this fact scenario is quite common.
The PA Workers’ Compensation Act is remedial in nature. This means it is meant to help injured workers, and it will be construed liberally by the courts. Thus, the Act is written so that an injured worker, who no longer has the right to sue for pain and suffering, will have every opportunity to report a work injury. Therefore, the second sentence of Section 311 provides that the time to give notice of an injury does not begin to run until the employee knows, or by the exercise of reasonable diligence should know, of the existence of an injury and its possible relationship to his or her employment. Thus, if someone is injured at work because of some type of repetitive trauma, for instance repetitive activity which causes carpal tunnel syndrome, the time for notice would only start when that person is aware that the carpal tunnel is being caused by some activity at work. This extension of the time to give notice has recently been considered by the courts and has likely been expanded by Gahring v. WCAB (R and R Builders and Stoudt’s Brewing Co.), No. 534 C.D. 2015 (Pa. Cmwlth., November 23, 2015).
The Gahring case held that a claimant’s notice to his employer that his back pain was related to his increased work hours constituted sufficient notice of his injury under the Pennsylvania Workers’ Compensation Act. Again, this is yet another example of the remedial nature of the Act. One might question whether an employer should be ascribed notice of a work injury when a complaint is received merely about pain which the employee relates to increased hours. However, right or wrong, the courts are now holding that notice of pain related to increased hours would constitute notice of an injury under the Act. Thus, a diligent employer would want to report such a complaint to its workers’ compensation carrier right away.
Most injured workers do not realize that a repetitive type injury can certainly be considered a work injury under the Workers’ Compensation Act of Pennsylvania. When an injury happens over time and not from a single acute incident, many employees don’t realize that the injury may be covered under the Workers’ Compensation Act. For example, if an employee lifts heavy logs for four hours and develops severe back pain at the end of the four hours, will the resulting back injury be work-related? Unfortunately, many workers would not know the answer to this question. Because of their lack of knowledge of workers’ comp law, they may not give notice to their employers within the required 120 days. A claim is absolutely barred if notice is not timely given to the employer. Further, an injured worker must realize that an acute injury – an injury which has a specific identifiable cause, such as lifting something heavy and suffering from immediate pain – is not necessarily the only way someone can have a compensable work injury in Pennsylvania.
Injured workers commonly do not realize that their activity at work is causing an injury. It’s only after a number of months that they finally seek medical treatment. It might be that the injured worker is only aware that his injury is work-related because the treating doctor informs her so. For example, an employee suffers from pre-existing asthma. However, as part of her job she is required to be in an environment where glass dust is being inhaled. This environment continues on for two years, and finally the employee realizes that her asthma has gone from manageable to debilitating. However, she is not sure why her asthma has worsened. It’s only after she sees her family doctor who begins to question why her asthma has suddenly taken a turn for the worst that she begins to realize that her condition might be work-related. After she tells her doctor the environment in which she works, the doctor concludes that the inhalation of glass dust has been causing a continual aggravation of her pre-existing asthma. Now that the worker actually knows of the work-relatedness of the injury, she has the obligation to tell her employer, or “give notice,” that she believes the work environment is causing an injury with 120 days.
There are some examples of when the 120-day notice period may actually be extended. For example, where the employee is exposed to continuing multiple traumas, the injury does not take place until the last exposure or trauma occurs, which usually means the last day of work. Therefore, the injured worker could argue that the 120 day notice period does not begin until the last exposure. For example, if an injured worker was developing carpal tunnel syndrome because of operating a machine which required repetitive movement of the hand, that employee may not be required to give notice until 120 days after the last exposure. However, this would require the fact that the employee did not know, nor would he have been reasonably expected to know, that the work being performed was causing the injury. The date of injury on such a repetitive trauma case would usually be considered the last day of work. Situations such as this, however, can often be difficult for the injured worker to prove. If a reasonable person would have realized that the operation of a particular machine would be causing carpal tunnel syndrome, the courts may find that the employee knew, or should have known that the injury was occurring. However, given the remedial nature of the Act and the courts’ general liberal application of the law, the above situation would likely be considered work-related with the notice being required within 120 days of the last exposure.
Another issue that often is raised when it comes to notice is whether notice of the causation of an actual work injury has been given to the employer. For example, if the injured worker goes to his employer and says that “his back is killing him,” does that constitute notice to an employer that some type of injury has had occurred? Most likely, it does not. The Act and the accompanying case law set out specific guidelines as to what is required by the injured worker to give notice to the employer, and the report of pain alone is not enough. The general rule is that the injured worker must tell the employer that an injury occurred in the course and scope of employment and what part of the body is injured. Therefore, in the above example, notice would likely be acceptable if the injured worker simply added “my back is killing me because I injured it today at work.” While this sounds like common sense, the average person doesn’t expect to be injured at work, and doesn’t always realize that simply telling their employer that some part of their body hurts is not sufficient notice.
While notice issues are usually not the biggest issues in a litigated case, the above examples are certainly reasons for any injured worker to realize that it is critically important to give notice to his or her employer of any type of injury. Further, whether an employee has complied with the notice provisions of the Workers’ Compensation Act is a question of fact to be determined by a Workers’ Compensation Judge. Because of these levels of complication, injured workers should always consultation with a competent workers’ comp attorney if they even suspect a work related injury. Employers who are put on notice of a work injury should contact their workers’ compensation insurance carriers right away, no matter their internal policies about how long a workers has to report an injury.
Daniel E. McCabe, Esq., is an associate in the law firm of Wolf, Baldwin & Associates, P.C.. He and managing attorney Levi S. Wolf are two of less than 200 lawyers across the state who have been certified as specialists in the practice of workers’ compensation law by the Pennsylvania Bar Association’s Section on Workers’ Compensation Law as authorized by the Pennsylvania Supreme Court. His practice, located in the firm’s West Chester office, concentrates on the representation of injured workers and medical providers. He can be reached by phone at 610.436.8300, or by e-mail at firstname.lastname@example.org.