.

Defense Digest

Notice of An Injury Can Be Extended Beyond 120 Days

Defense Digest, Vol. 27, No. 2, March 2021

March 1, 2021

Key Points:

  • Section 311 of the Pennsylvania Workers’ Compensation Act specifies the time that injured workers have for providing notice of a work injury to employers.
  • Unless the employer has knowledge of the occurrence of the injury, the injured worker has to provide notice of a work injury within 21 days to be eligible to receive compensation from the date of injury and onward.
  • If an injured worker does not provide notice within 21 days, no compensation is due until the day notice is provided.
  • An injured worker will be barred from receiving benefits if notice of the injury is not provided within 120 days from the date of injury.

In a case of first impression, the Commonwealth Court of Pennsylvania “extended” the statutory time period for giving notice of an injury. An injured worker, in certain circumstances, now has up to 123 days to report a work injury!

In Holy Redeemer Hosp. Systems v. WCAB (Figueroa), 2020 WL 7778193 (Pa. Cmwlth. Dec. 31, 2020), the claimant was employed as an emergency room nurse when, on Saturday, July 25, 2015, she felt significant pain in her left leg. The claimant was scheduled to work on Sunday, July 26, 2015, but she called off and sought medical treatment from her physician, who removed her from work. The claimant did not report her work injury to the employer until Monday, November 23, 2015. The case was denied and disputed by the employer and its workers’ compensation carrier, which prompted the claimant to file a claim petition. The Workers’ Compensation Judge found that the claimant sustained a work injury, but that she didn’t provide timely notice under Section 311 of the Act. Specifically, the judge found that the claimant notified the employer of the work injury 121 days after the injury, or one day late.

The claimant appealed the decision of the Workers’ Compensation Judge to the Workers’ Compensation Appeal Board (Board), which reversed the judge’s finding of timeliness of the claimant’s notice to the employer. The Board noted that the 120th day fell on a Sunday and that Section 311 of the Act was silent as to whether notice needs to be given on a Sunday if the claimant’s notice obligations are set to expire. Accordingly, the Board looked beyond the Act to Section 1908 of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1908, which states:

When any period of time is referred to in any statute, such period in all cases, . . . shall be so computed to exclude the first and include the last day of such period. Whenever the last day of any such period shall fall on a Saturday or Sunday, or any day made a legal holiday by the laws of this Commonwealth or of the United States, such day shall be omitted from the computation.

The Board found that the claimant timely reported her work injury because she had until Monday, November 23, 2015, to report it. Although that date was 121 days after the work injury, the report was still timely because the 120th day fell on a Sunday, which is omitted from the computation per Section 1908.       

Ultimately, the case reached the Commonwealth Court when the employer appealed the decision of the Board. The sole issue raised was whether the Board erred in finding that the claimant provided timely notice of the work injury.

The employer tried to establish that nothing prevented the claimant from reporting her work injury on Sunday, November 22, 2015, and that the Statutory Construction Act of 1972 did not have an application to Section 311 of the Workers’ Compensation Act. In sum, the employer argued that she didn’t work for an employer who was open for business five days a week. Instead, she worked in the emergency room, which was open 24 hours a day, 365 days per year. Furthermore, she was injured on a Saturday and even called off of work the next day.

The Commonwealth Court acknowledged that neither the Act nor the regulations promulgated by the Bureau of Workers’ Compensation provide guidance on how to calculate the 120-day notice requirement. The Commonwealth Court analyzed the above arguments and determined that the claimant timely reported her injury. In doing so, the Commonwealth Court found that Section 1908 applies to a statute that “contains a time period within its terms,” unless the statute specifically excludes the application of Section 1908. The Commonwealth Court explained that, when calculating the 120-day time period, the date of injury is excluded from the calculation, and so is the last day, provided it lands on a weekend or a holiday recognized by the Commonwealth or the United States.

These days, the claimant has up to 123 days to report an injury if the 120th day falls on a Saturday and a legally recognized holiday is on a Monday. Make sure you review your calendars closely the next time you think you have a notice defense and can issue a notice of workers’ compensation denial based upon the same. Also, after the claim is reported, make sure you gather as much information as possible during your investigation since this decision doesn’t change the fact that late reporting, even if timely under the Act, is often the first of many red flags related to the claim.

*Ryan is a shareholder in our Pittsburgh, Pennsylvania office. He can be reached at 412.803.1173 or rahauck@mdwcg.com.

Defense Digest, Vol. 27, No. 2, March 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2021 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

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In their analysis, the Supreme Court of Ohio broke down the elements of a claim preclusion analysis: 1) a prior final, valid decision on the merits by a court of competent jurisdiction; (2) a second action involving the same parties, or their privies, as the first; (3) a second action raising claims that were or could have been litigated in the first action; and (4) a second action arising out of the transaction or occurrence that was the subject matter of the previous action. The Court held that R.C. Ch. 2506 does not permit a party to argue damages as R.C. Ch. 2506 limits the common pleas jurisdiction as if it were sitting on appeal, and therefore can only affirm, reverse, vacate, or modify the appealed order, or can remand the case to the administrative body. Further, the Court held that Grava’s conclusion that a final judgment precludes additional litigation for different relief is inapplicable under this fact pattern because it was meant only to apply to those matters in which the plaintiff brings the exact same case twice, but for new relief. The Court found Grava was inapplicable because Sheetz could have requested damages or declaratory relief in the R.C. 2506 appeal. Therefore, Grava would be nothing more than dicta if it even did apply. Going further, the Ohio Supreme Court disavowed Sixth Circuit precedent which, in reliance on Grava and other district court decisions, permitted an owner to seeking relief under 42 U.S.C. § 1983 alongside an administrative appeal. See Moore v Hiram Twp., 988 F.3d 353 (6th Cir.2021). The Ohio Supreme Court found that the Sixth Circuit had disregarded a critical decision in Community Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals, 1993-Ohio-115, which clearly held that a R.C. Ch. 2506 appeal cannot be combined with a complaint seeking other claims for relief. Id. at ¶ 11. To that end, the Ohio Supreme Court has determined that the decisions Moore relied on (outside of Grava) are no longer good law, and that Moore was wrongly decided. The decision draws a clear procedural boundary: Chapter 2506 provides judicial review of an administrative decision, not a forum for independent claims seeking affirmative relief. Although Grava may place claims arising from a single transaction within the potential scope of claim preclusion, those claims are not barred unless the complete claim-preclusion test is satisfied. Because Sheetz could not have pursued damages or declaratory relief in its Chapter 2506 appeal, the separate action was not precluded. 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