Under the Pennsylvania Workers’ Compensation Act, an injured worker has 120 days to provide notice of a work injury to his or her employer.  If notice is not given within this required time, a Claim Petition may be barred.  The time period for giving notice can be extended where the work injury, or its relation to work, is not immediately apparent to the injured worker.

The Commonwealth Court of Pennsylvania recently looked at what constitutes sufficient “notice” to meet the legal requirement in The Hershey Company v. Woodhouse (Workers’ Compensation Appeal Board), No. 904 C.D. 2002 (filed 8/3/23). In Woodhouse, the injured worker had a history of diabetic neuropathy and had developed a right diabetic foot ulcer in June of 2017. On November 6, 2017, the injured worker passed out at work and was taken to a hospital.  Subsequently, the injured worker sent his employer an e-mail to advise that he had emergency foot surgery in the nature of a below-the-knee amputation on the right leg.  The e-mail did not mention any relation to his work or job duties.

Over two years later on December 1, 2019, Claimant filed a Claim Petition, alleging that “he suffered a work injury on November 6, 2017, consisting of an aggravation of a diabetic foot ulcer and a below-the-knee amputation of his right leg.” The Claim Petition was extensively litigated. The Workers’ Compensation Judge (WCJ) granted the Claim Petition, awarding “specific loss benefits” for the loss of a great toe and remaining toes of the injured worker’s right foot, but denied “specific loss benefits” for the below-the-knee amputation.  In the decision, the WCJ found that notice was a “close call,” but that:

“. . .  given this evidence from Claimant, and Claimant’s reminder that the Act’s notice requirement is to be liberally construed, it will be concluded that an adequate basis for Employer to have had constructive notice of Claimant suffering a work injury to his right foot existed by November 2017.”

On appeal, the Workers’ Compensation Appeal Board (WCAB) reversed the WCJ and awarded “specific loss benefits” for the below-the-knee amputation, but otherwise affirmed the decision of the WCJ.  With regard to the issue of notice, the WCAB said:

“The WCJ acknowledged that the issue in this matter was close, but he made a factual determination that [Employer] had constructive notice of Claimant’s right foot condition and of the relationship between his foot condition and his employment duties as of Claimant leaving work on November 6, 2017, given [Employer’s] knowledge of the right foot ulcer and blister[,] and Claimant’s restrictions and his need for alternative footwear while on his feet, as well as [Employer’s] access to Claimant’s medical records.”

The employer appealed to the Commonwealth Court of Pennsylvania who reversed the Order of the WCAB (and the WCJ), finding that proper notice was not given.  The Court found significant the testimony of the injured worker that he knew he suffered a work-related injury in November 2017, that he knew the condition was related to the work duties, that he knew he was under Employer’s work rules to immediately report any suspected work injury, and that his e-mail to the Employer within the 120 days did not specifically state in any way that his injury or condition was caused or aggravated by work.  As such, the first sufficient notice of the November 2017 work injury was the Claim Petition, filed in December 2019, over two years later and well beyond the allotted 120 days.

From litigating workers’ compensation cases for over 20 years, the question of proper “notice” is very fact-specific and must be closely evaluated in order to raise an appropriate notice defense to benefits.

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 Tort 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 for 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 eleventh consecutive year in 2023. He has been selected as a 2021 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. He has been selected as a Fellow of the College of Workers’ Compensation Lawyers Class of 2020. Mr. Rubinich was recognized as a Main Line Today 2023 Top Lawyer.

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