Opinion
No. 512 C.D. 2012
08-03-2012
Philadelphia Gas Works, Petitioner v. Workers' Compensation Appeal Board (Whelan), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Philadelphia Gas Works (Employer) challenges the order of the Workers' Compensation Appeal Board (Board) which affirmed the decision of the Workers' Compensation Judge (WCJ) which granted Eugene Whelan's (Claimant) petition for benefits.
Claimant worked as a service repairman technician for Employer. He answered gas leak complaints, carbon monoxide alarms, and assisted the fire department during fires. He also handled "turn ons," where he carried fifty pound bags of pipe. He also repaired water heaters, house heaters, and gas dryers. He also fixed gas leaks.
On October 8, 2008, Claimant was on a job where he was required to change the gas meter. The stairs he was on collapsed. Claimant's knees struck a concrete floor. Claimant reported the incident to his supervisor, John Keebler, who sent him to Mercy Wellness Center (Mercy). Mercy reported to Employer that Claimant suffered a contusion to his left shin and right knee. Mercy Wellness Center, Employer Update Form, October 8, 2008, at 1; Reproduced Record (R.R.) at 6a. Claimant returned to work the next day.
Claimant did not miss any time as a result of the injury until November 10, 2009, when he underwent arthroscopic surgery to repair a tear of the medial meniscus of the left knee. Claimant did not return to work.
On December 28, 2009, Claimant petitioned for benefits and alleged that he suffered "[i]njury to both left and right knees" as a result of the October 8, 2008, incident. Claim Petition, December 28, 2009, at 1; R.R. at 1a.
At hearing, Claimant described the nature of his job and the work injury. He "immediately reported the incident to the PGW [Employer] dispatcher, and they sent my supervisor, John Keebler . . . out to the job, and he did a written report there." Notes of Testimony, January 27, 2010, (N.T.) at 7; R.R. at 13a. Claimant did not believe he could return to his time of injury job because his knees were weak and sore. He explained that his "left knee swells up. And my right knee, I have a torn meniscus." N.T. at 9-10; R.R. at 15a-16a. On cross-examination, Claimant reported that he called in sick on November 10, 2009, and informed Employer that he was going to the hospital. When Employer contacted him, later, on a "sick check," he stated that he "had surgery and . . . would be out for a little while." N.T. at 13; R.R. at 19a. Claimant had problems "kneeling, standing, and lifting things and bending." N.T. at 19; R.R. at 25a.
Claimant presented the medical deposition testimony of Randall Norman Smith, M.D. (Dr. Smith), board-certified in orthopedics and pain management and Claimant's treating physician since January 7, 2010. Dr. Smith diagnosed Claimant with meniscal tears in both knees and osteochondral damage definitely in the left knee and probably in the right knee which led to persistent pain in both knees. Deposition of Randall Norman Smith, M.D., April 20, 2010, (Dr. Smith Deposition) at 10-11. Dr. Smith believed, within a reasonable degree of medical certainty, that Claimant's condition was caused by the fall on October 8, 2008. He also opined that Claimant was unable to return to his time of injury job. Dr. Smith Deposition at 13-14. Dr. Smith explained that Claimant did not obtain as good a result as hoped from the left knee surgery and that Claimant was also a candidate for right knee surgery. Dr. Smith Deposition at 19.
Dr. Smith opined that the report from Mercy was consistent with the mechanism of injury that he described as causing Claimant's problems:
Climbing the cellar steps, stairs fell striking the left shin which would be the front of the shin bone, forcing that backward which would then stretch the ACL ligament and then when that happens, the body twists and both menisci get torn. There is also damage in the operative report to the articular cartilage which would also a [sic] occur when that meniscus gets torn and the torn meniscus kind of digs into the articular cartilage causing the damage there as well.Dr. Smith Deposition at 30-31.
Employer introduced the Employer Update Form from Mercy.
The WCJ granted Claimant's petition for benefits. The WCJ determined that the Employer Update Form corroborated Claimant's testimony. The WCJ found Claimant and Dr. Smith credible.
Employer appealed to the Board and argued that the WCJ's decision was not reasoned because the WCJ failed to address Employer's argument that Claimant failed to provide timely notice of an injury in the nature of bilateral meniscal tears as Employer only received notice of an injury without disability in the nature of a contusion.
The Board affirmed:
We have reviewed the transcripts of the hearings held on January 27, 2010 and July 14, 2010 in their entirety and have been unable to discover any indication that the issue of the sufficiency of Claimant's notice of his work injury was ever raised to the attention of the WCJ. In fact the WCJ found that the Claimant immediately reported the incident and was sent to Mercy Wellness Center by his supervisor, John Keebler (finding of fact #4). Accordingly, Defendant's [Employer] argument on appeal is rejected.Board Opinion, February 28, 2012, at 3-4.
A party waives an issue for appeal if it did not raise it before the Judge. . . . An issue is waived unless it is preserved at every stage of the proceeding. . . . Generally, a WCJ cannot grant relief sua sponte. The WCJ is only empowered to grant the relief actually requested by a party. . . . (Citations omitted).
Employer contends that the Board erred when it determined that Employer waived the issue of the sufficiency of notice and that the WCJ erred when she failed to address Employer's argument that notice of an injury on October 8, 2008, in the nature of a contusion did not amount to sufficient notice to support a claim of disability as of November 10, 2009, for an injury in the nature of bilateral meniscal tears.
Our review is limited to a determination of whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence, or whether constitutional rights were violated. Vinglinsky v. Workmen's Compensation Appeal Board (Penn Installation), 589 A.2d 291 (Pa. Cmwlth. 1991).
Initially, Employer contends that the Board erred when it determined that Employer waived the issue of the sufficiency of Claimant's notice of his work injury because Employer failed to raise the issue before the WCJ. Employer argues that it reserved all defenses available to it when it answered the claim petition. Employer stated in its answer, "Defendant [Employer] respectfully reserves the right to raise any affirmative defenses during litigation and/or to otherwise amend this Answer." Answer to Claim Petition, January 20, 2010, at 2; R.R. at 5a. This Court does not agree that Employer preserved this issue through its answer. Such a blanket statement does not adequately serve to identify the preservation of an issue.
Employer also asserts that its cross-examination of Claimant served to preserve the issue of notice. Employer's attorney did question Claimant on whether he reported at Mercy that he injured his left shin, whether he informed Employer that he was leaving when he missed work for knee surgery, and whether he informed Employer after his injury that he was having difficulty with his legs. N.T. at 11-14; R.R. at 17a-20a. Once again, it is too great a stretch to argue that this sufficiently constituted raising the issue of notice. Employer did not present testimony from any of its supervisors that Claimant did not inform Employer of his injury. The only evidence presented by Employer was the Employer Update Form from Mercy.
Employer also asserts that it argued, within its proposed findings of facts that it presented to the WCJ, that the notice of a contusion did not constitute notice of a disability in November 2009, in the nature of bilateral meniscus tears. Unfortunately, Employer's proposed findings of fact are not part of the certified record before this Court. Therefore, this evidence will not be considered. McKenna v. Pa. State Horse Racing Comm'n, 476 A.2d 505 (Pa. Cmwlth. 1984) (holding that the Court, in its appellate capacity is bound by the certified record). See also Pa. R.A.P. 1551 ("No question shall be heard or considered by the court which was not raised before the government unit.").
In Westinghouse Electric Corporation/CBS v. Workers' Compensation Appeal Board (Simon), 821 A.2d 1279, 1284 (Pa. Cmwlth.), petition for allowance of appeal denied, 574 Pa. 768, 832 A.2d 437 (2003), this Court held that because "the issue of certification or sworn testimony was never properly raised before the WCJ, it has not been properly preserved on appeal to this Court." This Court is not persuaded by Employer's argument that the Board erred when it determined that Employer waived this issue.
Assuming arguendo that Employer did not waive this issue, the Board still did not err.
With respect to notice, Section 311 of the Workers' Compensation Act (Act), 77 P.S. §631, provides:
Act of June 2, 1915, P.L. 736, as amended. --------
Unless the employer shall have knowledge of the occurrence of the 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. However, in cases of injury resulting from ionizing radiation or any other cause in which the nature of the injury or its relationship to the employment is not known to the employe, the time for giving notice shall not begin to run until the employe knows, or by the exercise of reasonable diligence should know, of the existence of the injury and its possible relationship to his employment. The term "injury" in this section means, in cases of occupational disease, disability resulting from occupational disease.
Section 312 of the Act, 77 P.S. §632, provides, "[t]he notice referred to in Section 311 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."
The claimant must not only inform the employer of the injury but also of the fact that it is work-related. Gribble v. Workmen's Compensation Appeal Board (Cambria County Ass'n for the Blind), 692 A.2d 1160 (Pa. Cmwlth.), petition for allowance of appeal denied, 549 Pa. 719, 701 A.2d 579 (1997). Whether a claimant gave notice in compliance with the Act is a question of fact for the WCJ. Kelly v. Workmen's Compensation Appeal Board (Pepsi Cola Bottling Co. of Philadelphia), 647 A.2d 275 (Pa. Cmwlth.), petition for allowance of appeal denied, 539 Pa. 693, 653 A.2d 1231 (1994). Further, an exact diagnosis is not necessary in order for an employee to provide adequate notice of an injury. The employee must only provide a reasonably precise description of the injury. Gentex Corp. v. Workers' Compensation Appeal Board (Morack), ___ Pa. ___, 23 A.3d 528 (2011).
Here, the WCJ found that Claimant "immediately reported the incident" to Employer. WCJ's Decision, October 14, 2010, Finding of Fact No. 4 at 1. Claimant's testimony supported this finding. Further, the Employer Update Form which Employer introduced into evidence listed Claimant's injury as a contusion to the left shin and right knee. The WCJ found that this Form corroborated Claimant's testimony.
Employer argues, however, that the description of the injury as "contusion left shin and right knee" was insufficient to provide it with notice that Claimant sustained tears to both the right and left meniscus.
In Body Shop v. Workers' Compensation Appeal Board (Schanz), 720 A.2d 795 (Pa. Cmwlth. 1998), this Court addressed a similar issue. Gerald Schanz (Schanz) suffered a low back injury on July 11, 1990, while working for The Body Shop as an auto body technician. He received workers' compensation benefits pursuant to a notice of compensation payable that indicated he suffered from an acute low back strain. In July and October of 1992, Schanz underwent cervical and lumbar disc surgeries. The Body Shop refused to pay for the surgeries as well as other related costs. Schanz petitioned to review medical treatment and/or billing and also petitioned for penalties. The Workers' Compensation Judge determined that Schanz had sustained a work-related injury to his low back and that the lumbar surgery was related to the work injury. The Workers' Compensation Judge determined that The Body Shop did not meet its burden of proving that the medical expenses incurred by Schanz regarding his low back were not causally related to his work injury. The Workers' Compensation Judge also concluded that Schanz had not established that his neck pain and surgery were related to the work injury. The Workers' Compensation Judge assessed a penalty against The Body Shop. The Board affirmed. Body Shop, 720 A.2d at 796-798.
The Body Shop petitioned for review with this Court. One of the issues raised by The Body Shop was that the Workers' Compensation Judge and the Board erred in the assessment of penalties because it did not unilaterally cease paying Schanz medical benefits because he was not entitled to medical benefits for any injury other than a low back strain and Schanz did not notify The Body Shop that he had suffered a herniated disc. Body Shop, 720 A.2d at 798-799.
This Court affirmed:
In this case, when Claimant [Schanz] initially was injured and examined, he was diagnosed with an acute low back strain. However, after having continued pain and further diagnostic studies were performed, the diagnosis - not the injury - changed to a herniated disc. Because the diagnosis of a herniated disc does not constitute a separate injury but is just another diagnosis of the initial
injury . . . Claimant's [Schanz] original notice to Employer [The Body Shop] sufficiently alerted it of the work-related injury to his back and gave it an opportunity to investigate the reasonableness and necessity of Claimant's [Schanz] medical bills.Body Shop, 720 A.2d at 799.
Here, Claimant was injured on the job. He notified Employer immediately. His supervisor sent him to Mercy. Employer was informed by Mercy that Claimant suffered a contusion to the left shin and right knee. As in Body Shop, over time and further examinations and tests, it was determined that the diagnosis eventually recognized the injury as "meniscal tears." This diagnosis was related to the original injury as set forth by the credible testimony of Dr. Smith. Employer had notice of the injury even though the diagnosis changed.
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 3rd day of August, 2012, the order of the Workers' Compensation Appeal Board in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge