Francis X. Wickersham

The claimant’s January 2018 email failed to prove notice under § 312.

In this case, the claimant had a pre-existing history of diabetic neuropathy. He developed a right diabetic foot ulcer in June 2017. He was prescribed a boot, which the employer would not allow the claimant to wear on the factory floor. Subsequently, the claimant was restricted from working by his doctor in June and August 2017. He later returned to work in September 2017, with a restriction from his doctor that he wear regular shoes, due to the diabetic foot ulcer and infected blister. In November 2017, emergency foot surgery was performed. The claimant returned to work in March 2018. In April 2018, a below-the-knee amputation of his right leg was performed. In January 2018, the claimant sent an e-mail to the employer notifying them about the emergency foot surgery.

The claimant then filed a Claim Petition in December 2019, alleging a November 6, 2017, work injury and seeking specific loss benefits. The claimant alleged his work duties aggravated a diabetic foot ulcer. The employer contested the petition on the basis that timely notice of the work injury had not been given. The Workers’ Compensation Judge granted the Claim Petition and held that the claimant had provided timely, constructive notice of the work injury. Specific loss benefits were awarded for the loss of the claimant’s great toe and remaining toes of the right foot but denied as to the below-the-knee amputation. Both the claimant and the employer appealed to the Appeal Board. The Board reversed the decision as to the below-the-knee amputation but affirmed in all other aspects. 

The employer appealed to the Commonwealth Court. The employer argued that the claimant did not provide timely notice, as required under Section 311 of the Act, because the claimant knew of the alleged causal connection between his amputations and his work duties in November 2017, but did not provide notice to the employer until the Claim Petition was filed in December 2019. The Commonwealth Court agreed and reversed the decisions of the judge and the Board. The court noted that when the claimant testified, he admitted that he suspected his amputation was related to his job duties in 2017, but he did not notify the employer because the employer never asked him about it. The court held that, in light of this testimony, Section 311 of the Act required the claimant to provide notice of the injury within 120 days of November 7, 2017, the date of claimant’s foot surgery. Although the e-mail the claimant sent in January 2018 said that he had emergency foot surgery, the e-mail did not say that the surgery was work-related, and it did not specify that his job duties aggravated his pre-existing condition. Therefore, Section 312’s notice requirements were not satisfied, and the court found that constructive notice was not provided.
 

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