120-Day Work Injury Notice Rule Clarified By PA Commonwealth Court Decision

Section 311 of the Pennsylvania Workers’ Compensation Act provides that notice of a work injury must be given to an employer within 120 days or it is barred. However, the Commonwealth Court has held that the 120-Day notice period does not end on Sunday even if the employer is open for business. In Holy Redeemer Hosp. Systems v. WCAB (Figueroa), _A.3d_,2020 (Pa. Cmwlth. 2020), the Court, affirming the Workers’ Compensation Appeal Board (WAB), held that a Claimant provided timely notice of her injury on the 121st day after her injury, as the 120th day fell on a Sunday. The Claimant was employed as a nurse at Holy Redeemer Hospital. On July 25, 2015, she developed pain in her leg. She did not provide notice until Monday, Nov. 23, 2015, or 121 days after the injury. The employer issued a Notice of Temporary Compensation Payable, but the timely revoked it. Nine months later, claimant filed a Claim Petition. The Workers’ Compensation Judge credited the claimant’s medical proof, but dismissed the case under Section 311 which holds that notice is required within 120 days of injury. The WCAB reversed and awarded compensation benefits. In this case of first impression, the Court affirmed the WCAB holding that since the 120th day fell on a Sunday, the obligation to give notice fell on the following Monday. The Court concluded that notice was timely even though effected on day 121. The Court relied upon the Statutory Construction Act which provides, relevantly, “Whenever the last day of any such period shall fall on Saturday or Sunday,…such day shall be omitted from the computation.” Section 1908 of the Statutory Construction Act, 1 Pa. C.S. § 1908. This law applied to “any period of time…referred to in any statute.” The Court rejected the employer’s argument that, because the hospital was open 365 days a year and a 24/7 operation, Claimant could have provided notice on Sunday. The Court reasoned that “Equally problematic is the lack of any language in Section 311 to support employer’s position that the 120-day notice period is determined by the type of business in which the employer is engaged.” Therefore, this holding by the Commonwealth Court stresses that when the 120th day to give notice of a work injury under Section 311 of the Pennsylvania Workers’ Compensation Act falls on a Saturday, Sunday or federal or state holiday, then notice is timely if given on the 121st day.

Zachary M. Rubinich is a partner in our Philadelphia office. He focuses his practice on the defense of insurance carriers, self-insured entities and third-party administrators against workers’ compensation claims in Pennsylvania. Based on his extensive experience, the Pennsylvania Bar Association Workers’ Compensation Law Section has certified him as Specialist in the practice of workers’ compensation law Zach has handled all aspects of litigation before workers’ compensation judges, the Workers’ Compensation Appeal Board, the Commonwealth Court and the Pennsylvania Supreme Court. Zach has been appointed to the following American Bar Association Tor Trial and Insurance Practice (TIPS) leadership positions: Vice-Chair of the Litigation and Trial Practice Committee; Vice-Chair of the Appellate Advocacy Committee; member of the Ethics and Professionalism Standing Committee; and member of the CLE Board Committee. He is the Past Chair of the American Bar Association’s Tort Trial and Insurance Practice (TIPS) Workers’ Compensation and Employers’ Liability Law Committee from 2018-2019. he served as Vice-Chair of this committee from 2015-2016, 2016-2017 and 2017-2018. In addition, Zach served as Vice-Chair of the 2017-2018 American Bar Association Standing Committee for Diversity and Inclusion. Zach has been rated AV Preeminent by Martindale-Hubbell for the eighth consecutive year in 2020. He has been selected as a 2020 Pennsylvania Super Lawyer by Super Lawyers. He was selected as a Pennsylvania Rising Star by Super Lawyers from 2010 to 2014. He was selected as an International Advisory Experts (IAE) Award recipient in 2019 for his accomplishments as a workers’ compensation attorney in Pennsylvania. In addition, he has been selected as a Fellow of the College of Workers’ Compensation Lawyers Class of 2020.

Mr. Rubinich can be reached directly at: (215) 575-4340 • zrubinich@rawle.com

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