T. Burch v. WCAB (Graham Packaging)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Tammi Burch, :
Petitioner :
:
v. : No. 575 C.D. 2017
: Submitted: December 1, 2017
Workers’ Compensation Appeal :
Board (Graham Packaging), :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE J. WESLEY OLER, Jr., Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: March 1, 2018
Tammi Burch (Claimant) petitions for review of an adjudication of the
Workers’ Compensation Appeal Board (Board) denying her claim for benefits. The
Board affirmed the determination of the Workers’ Compensation Judge (WCJ) that
Claimant failed to give Graham Packaging (Employer) timely notice of her work
injury. Claimant argues that text messages from a co-worker showed that
Employer’s plant manager knew of Claimant’s work injury and, thus, the WCJ erred.
We affirm.
In 2011, Claimant began working as a quality assurance technician in
Employer’s bottle manufacturing plant. On June 3, 2013, Claimant filed a claim
petition under the Workers’ Compensation Act (Act),1 alleging that on January 28,
2013, she “hit her head on a low hanging vent causing [a] neck injur[y] and surgery.”
Reproduced Record at 2a (R.R. __). Employer denied liability, alleging it was not
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4; 2501-2708.
notified that her neck injury was work-related until June 4, 2013, which was
untimely. Section 311 of the Act2 requires notice to be given within 120 days of the
injury, and Claimant did not meet this statutory deadline.
Before the WCJ, Claimant testified that on January 28, 2013, she was
walking very fast when she hit an “air conveyor that is right at [her] height.” Notes
of Testimony (N.T.), 7/10/2013, at 10; R.R. 19a. It “smashed [her] forehead right at
[her] hairline and [her] head flew back.” Id. The day of the incident, she told three
of her co-workers what happened: Finis Vincent, Cordella Roberts and Neal Knaub.3
These three co-workers were her friends.
Claimant acknowledged that she needed to fill out an accident report,
but she decided not to report the incident or inform her supervisor, Frank Sansosti.
Claimant explained that Employer has a large clock at the plant that keeps a running
tally of how long the plant has operated without a work accident. A full accident-
free year entitles each employee to a payment of approximately $150. At the time
of her injury, the plant had gone almost four years without an accident. Claimant
2
It provides, in full:
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.
77 P.S. §631 (emphasis added).
3
The record incorrectly identifies him as “Neil Rob.” Board Adjudication, 04/06/2017, at 3 n.2.
2
did not want to cause her co-workers to lose the bonus or be the employee “that
brought [the clock] down to a zero.” N.T., 7/10/2013, at 14; R.R. 23a.
On February 5, 2013, because of neck pain, Claimant saw her family
physician. On February 10, 2013, she went to the emergency room because of her
neck pain. Unable to return to work, Claimant began treatment with John
Grandrimo, D.O., an orthopedic surgeon. On March 21, 2013, she underwent a
cervical discectomy and fusion at C5-6 and C6-7. After the surgery, Claimant
expected to return to work. However, she continued to experience pain.
Claimant told both her family doctor and Dr. Grandrimo that her injury
was not work-related.4 Instead, she claimed that she ran into a tree branch while
chasing her dog in the yard. Claimant’s medical bills were paid by her husband’s
health insurance program, and she received wage loss benefits under Employer’s
short-term disability plan.
Claimant testified about several text message exchanges she had with
her co-workers. On February 15, 2013, Toby Keiser, the plant manager, sent
Claimant a text message asking if her dog had caused the injury, to which Claimant
responded that she “[r]an into something head first walking pretty fast and [her] head
snapped back.” R.R. 277a. Nevertheless, Claimant believed that Keiser knew her
injury was work-related, based on text messages she received from Knaub. On
March 4, 2013, she sent a text to Knaub asking, “[y]ou never told anyone the real
story right?” R.R. 222a. He responded, “Toby [Keiser] knows.” Id. Claimant
asked, “who told him?” R.R. 223a. Knaub replied, “Cordella [Roberts], you told
4
Claimant did tell Jennifer Kmiecinski, a physician’s assistant, that her injury was work-related
but she did not want it documented in her patient file. Kmiecinski presented testimony confirming
that on February 5, 2013, Claimant stated that her injury was work-related, but asked that this not
be included in her patient history. Kmiecinski complied with the request, believing it was
Claimant’s prerogative to determine what was included in her medical records.
3
her…told you not to tell anyone.” Id. (ellipsis in original). Claimant responded,
“she just told me this week that she hasn’t said anything, what did Toby [Keiser]
say?” R.R. 224a. Knaub stated, “[t]elling ya (sic), you gotta (sic) be careful with
people.” Id.
On May 5, 2013, Knaub and Claimant again exchanged text messages.
Therein, Claimant expressed worries about insurance fraud because both her
husband’s health insurer and Employer’s disability insurer had sent her
questionnaires about the specifics of her injury. Claimant also noted that if she
continued to claim that the injury was caused in her yard, the insurers may “make
[her] go against [her] homeowner’s insurance policy[.]” R.R. 251a. Claimant stated
[had] I known at the beginning when I smashed my head in
January how bad I hurt myself, I may have reported it, but I don’t
ever want to be the one to mess up the no accidents for [multiple]
years!
R.R. 252a. She then stated, “I’m taking one for the team. Although you told me
Toby [Keiser] knows the truth.” R.R. 253a. Knaub responded that “[h]e is not 100%
sure…but he has a feeling.” Id. (ellipsis in original). Claimant then asked, “[w]hat
makes you say that? What has he said?” Id. Knaub responded, “I gotta (sic) mow
(sic) … don’t worry about it.” Id. (ellipsis in original).
On June 4, 2013, Claimant sent a text message to Keiser stating that her
“claim has turned into a workman’s [sic] comp[ensation] claim and [she’s] hired an
attorney.” R.R. 292a.
Claimant presented the testimony of Knaub, who is a process engineer
with Employer. He stated that he was not a supervisor to whom work accidents are
reported. Knaub stated that he learned of her injury in February, when she
4
mentioned hurting her head at home. Sometime in March, she confided to him that
the injury actually occurred at work.
Knaub testified about his March 4th text that “Toby [Keiser] knows.”
R.R. 222a. He explained that when texting back and forth, the recipient may send a
text before the sender completes his message. The printout of their text messages
showed that the conversation proceeded as follows:
[Claimant:] But like humpty dumpty they can put me back
together again
[Knaub:] They are getting better with that…just hurry the hell
up
[Claimant:] I will just have to be more cautious with the things
I do
[Claimant:] You never told anyone the real story right?
[Knaub:] Start calling you dopey
[Knaub:] Toby [Keiser] knows
[Claimant:] If I knew how bad I hurt myself at the beginning I
would have come forward, but I didn’t want to be the one to
screw up the safety record. Besides my insurance is awesome
and everything is paid for
[Claimant:] ….who told him?
[Claimant:] They said the type of injury wouldn’t have shown
for a few weeks anyway
[Knaub:] Cordella [Roberts], you told her…told you not to tell
anyone
R.R. 222a-23a. (ellipses in original). Knaub testified that his statement “Toby
[Keiser] knows” was in response to Claimant’s statement that she will have to be
5
more cautious when working, not in response to her question about telling anyone
the “real story.”
Knaub stated that his May 5th text that Keiser “is not 100% sure … but
he has a feeling” was not based on anything other than Keiser “ask[ing] a couple of
us on the floor did we know anything. I said I don’t.” N.T., 1/22/2014, at 24; R.R.
100a.
Claimant also presented the testimony of Dr. Grandrimo, who first
examined Claimant on March 1, 2013. She told him that she ran headfirst into a
tree. He found that Claimant had a large disc herniation at C5-6 and C6-7 and on
March 21, 2013, he performed an anterior cervical discectomy fusion at C5-6 and
C6-7. Dr. Grandrimo continued to treat Claimant after the surgery. On June 3, 2013,
she informed him that she did not hit her head on a tree but on a vent at work. Dr.
Grandrimo testified that regardless of where Claimant struck her head, she continues
to need treatment for the injury. He has not released her to return to work.
Employer presented the testimony of Amanda Scarborough, its regional
human resources manager. Scarborough is responsible for processing claims to
Employer’s workers’ compensation insurance carrier. She first learned of
Claimant’s claim on June 4, 2013.
Scarborough testified that Employer has an incentive program that pays
each employee $150 for each year the plant goes without a reportable injury. She
stated that the program is meant to encourage workers to report unsafe conditions in
order to prevent injuries. It is not intended to discourage employees from reporting
injuries. They are required to report injuries; it is not discretionary.
Toby Keiser, the plant manager, testified. On February 7, 2013,
Claimant came to his office and told him that she hit her head on a tree limb. He
6
responded, “so you did not hurt yourself at work?” N.T., 11/6/2013, at 8-9; R.R.
369a-70a. Claimant responded “no.” Id. at 9; R.R. 370a.
Keiser confirmed that on June 4, 2013, Claimant sent him a text
message stating that the claim had become a workers’ compensation claim. He
replied with “a question mark,” but she did not respond. Id. at 10; R.R. 371a. Until
he received that message, Keiser testified that he had no idea that Claimant’s injury
might be work-related. He testified that Roberts, Vincent and Knaub, who knew
that Claimant’s injury actually happened at work, never relayed that information to
him.
Keiser addressed the incentive plan. He stated that if there are no
accidents in a one-year period, the employees each receive $150. If one accident is
reported, they each receive $75. If there are two or more accidents, they do not
receive any bonus.
Finis Vincent testified by telephone. He explained that he left his
position with Employer as a production supervisor in April 2013. He testified that
he saw a bruise on Claimant’s head sometime in January 2013, and asked about it.
Claimant responded that she hit her head on a tree branch while gardening. Claimant
did not tell him that her injury was work-related.
Frank Sansosti, a quality assurance manager, testified that he was
Claimant’s supervisor. He stated that Vincent had no supervisory role over
Claimant, and Knaub was “not anybody’s supervisor.” N.T., 11/6/2013, at 15; R.R.
443a. Sansosti explained that sometime in January 2013, Claimant told him that
“she was playing with her dog or walking the dog” when she “inadvertently struck
a tree limb and hurt her neck….” Id. at 7-8; R.R. 435a-36a. He believed her injury
to be non-work-related and not until June 4, 2013, did he learn otherwise.
7
Employer presented the testimony of Jonas Gopez, M.D., who is board-
certified in neurological surgery and did an independent medical examination (IME)
of Claimant on August 20, 2013. Claimant presented with a well-healed incision on
her neck, with tenderness in the left cervical paraspinal muscles. He did not suggest
that Claimant was fully recovered from the injury, noting that she continued to have
left-sided neck, shoulder and arm pain and numbness in her fingers. Dr. Gopez
questioned whether the injury was work-related because Claimant’s medical records
suggested that the injury occurred in her backyard.
The WCJ accepted Claimant’s testimony that she fabricated a story
about being injured at home, when the injury actually occurred in the course and
scope of her employment. The WCJ found that the injury occurred on January 16,
2013, based on notations contained in Claimant’s medical records.5 The WCJ also
found that Claimant established a loss of earnings as of March 21, 2013 (the date of
her surgery) and remains unable to work as a result of her work injury.
Although the WCJ found that Claimant established a work-related
disability, he denied her claim for benefits because she did not give Employer timely
notice of her work injury. The WCJ found that Claimant did not tell Vincent that
she was injured at work. The WCJ found that Claimant told Knaub that her injury
was work-related, but this notice was inadequate because Knaub did not work for
Employer in a supervisory capacity. Nor did Claimant present evidence that Knaub
was an agent of Employer for purposes of receiving notice of work injuries. The
WCJ also found Knaub did not tell Keiser that Claimant was injured at work; rather,
Keiser learned that the injury was work-related on June 4, 2013. Claimant told her
5
Although Claimant asserted the injury occurred on January 28, 2013, the WCJ found this was
inconsistent with her medical records. The WCJ’s finding that the injury occurred on January 16th
has not been challenged by Claimant in her appeal to the Board or to this Court.
8
supervisor, Sansosti, that the injury was not work-related; and he did not learn
otherwise until June 4, 2013. Based on these factual findings, the WCJ held that
Claimant did not notify Employer of her work injury within 120 days of its
occurrence, as mandated by Section 311 of the Act, 77 P.S. §631.
Claimant appealed to the Board, and it affirmed the WCJ. Claimant
then petitioned for this Court’s review.6 On appeal, she raises one issue. She
contends that the WCJ disregarded Claimant’s evidence that she gave timely notice
to Employer, based on Knaub’s text messages that “Toby [Keiser] knows” and
“[Keiser] is not 100% sure … but he has a feeling.” R.R. 222a, 253a (ellipsis in
original).
We begin with a review of the law. The claimant has the burden of
proving timely notice of the work injury to the employer. Gentex Corporation v.
Workers’ Compensation Appeal Board (Morack), 23 A.3d 528, 534 (Pa. 2011).
Section 311 of the Act gives an employee 120 days from the date of the injury, or
from the date the employee learns the injury is work-related, to give notice to the
employer. 77 P.S. §631. Section 312 sets forth the contours of a satisfactory notice:
The 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.
77 P.S. §632.
Whether an employee has given proper notice to her employer is a
mixed question of fact and law. Gentex Corporation, 23 A.3d at 534. The WCJ, as
6
Our review of an order of the Board determines whether the necessary findings of fact are
supported by substantial evidence, whether constitutional rights were violated, or whether an error
of law was committed. Cytemp Specialty Steel v. Workers’ Compensation Appeal Board
(Crisman), 39 A.3d 1028, 1033 n.6 (Pa. Cmwlth. 2012).
9
fact finder, is entitled to deference over questions of credibility and evidentiary
weight. Kocher’s IGA v. Workers’ Compensation Appeal Board (Dietrich), 729
A.2d 145, 147 (Pa. Cmwlth. 1999). Over questions of law, this Court’s review is
plenary. Scott v. Workers’ Compensation Appeal Board (Ames True Temper, Inc.),
957 A.2d 800, 803 n.4 (Pa. Cmwlth. 2008).
Claimant argues that Gahring v. Workers’ Compensation Appeal Board
(R and R Builders), 128 A.3d 375 (Pa. Cmwlth. 2015), supports her position that
Employer had notice of her work injury. Gahring established that where an
employer is notified of “the possibility [the injury] was work-related,” Section 311
is satisfied. Id. at 382 (quoting Gentex, 23 A.3d at 536). Claimant asserts that Keiser
knew of this possibility. Employer responds that Gahring is distinguishable.
In Gahring, the claimant sustained a work-related aggravation of his
pre-existing back condition. The WCJ denied benefits because the claimant did not
give notice of the aggravation within 120 days of the date of the injury. 7 The
claimant complained of back pain to his employer, but he did not connect it to his
job. On appeal, the Board acknowledged that the claimant’s condition had worsened
slowly over time and that the claimant had communicated that the “additional hours”
he was working “were making his back worse.” Id. at 379 (emphasis and citation
omitted). Nevertheless, the Board held this did not constitute sufficient notice under
the Act.
This Court reversed the Board. We explained that in cumulative trauma
cases, the connection to work duties may not be obvious. “The claimant must notify
7
When an aggravation injury is claimed, “each aggravation constitutes a new injury, so that notice
within 120 days of the last injury (usually the last day of work) satisfies the Act’s notice
requirements.” Curran v. Workmen’s Compensation Appeal Board (Maxwell Industries), 664
A.2d 667, 671 (Pa. Cmwlth. 1995).
10
an employer that he has an injury, but this can be done in ‘collective
communications.’” Id. at 381 (quoting Gentex, 23 A.3d at 538). The claimant “not
only reported his increase in back pain but correlated this additional pain to the
additional hours [the employer] was requiring him to work.” Id. at 382. We held
this constituted sufficient notice to the employer of “the possibility [the injury] was
work-related.” Id. (quoting Gentex, 23 A.3d at 536).
We agree with Employer that Gahring is inapposite. This case does not
involve a cumulative trauma. Nor is this a case where the claimant did not know the
injury was work-related. This case involves a singular trauma to Claimant’s head
and one that Claimant knew was work-related from the moment it happened.
Further, the record does not establish that Claimant gave timely notice
to Keiser of the “possibility” that her injury was work-related. Claimant testified
that she could not recall ever discussing her injury with Keiser face-to-face. The
text messages show that Keiser asked Claimant if the injury was caused by her dog
and she replied that she “[r]an into something head first walking pretty fast and [her]
head snapped back.” R.R. 277a. It was not until June 4, 2013, that she notified
Keiser that her “claim has turned into a workman’s [sic] comp[ensation] claim and
[she’s] hired an attorney.” R.R. 292a.
On February 7, 2013, Keiser questioned Claimant about the nature of
her injury. He specifically asked “so you did not hurt yourself at work?” N.T.,
11/6/2013 at 8-9; R.R. 369a-70a. Claimant responded “no.” Id. at 9; R.R. 370a.
Keiser testified that he had no idea that Claimant had told her co-workers that she
had hit her head on an air vent, and none of them informed him of that fact. The
WCJ credited Keiser’s testimony that his first notice of Claimant’s injury was on
June 4, 2013. WCJ Decision, 5/06/2016, at 35; Finding of Fact No. 65.
11
Nevertheless, Claimant asserts that Keiser learned the truth. Not from
her, but perhaps from Knaub or Roberts.8 Claimant’s assertion is based on Knaub’s
text messages that “Toby [Keiser] knows” and “[Keiser] is not 100% sure…but he
has a feeling.” R.R. 222a, 253a (ellipses in original). Claimant asks the Court to
conclude that Keiser’s “feeling” demonstrated sufficient notice under the Act.
Knaub testified that “Toby [Keiser] knows” was not in response to
whether anyone knew the “real story;” it was in response to Claimant’s statement
that she will have to be more cautious. N.T., 1/22/2014, at 15-16; R.R. 91a-92a.
Knaub stated in his text message that Keiser “is not 100% sure … but he has a
feeling” because Keiser had asked Claimant’s co-workers if they knew anything
about Claimant’s injury. N.T., 01/22/2014, at 24; R.R. 100a. Knaub specifically
denied telling Keiser that Claimant’s injury occurred at work, and the WCJ credited
this testimony. WCJ Decision at 23; Finding of Fact No. 40(p). The WCJ also
accepted Knaub’s explanation that “Toby [Keiser] knows” was in reference to
Claimant’s comment that she would have to be “more cautious” performing her work
duties. Id. at 17; Finding of Fact No. 35(j).
The WCJ found, as fact, that Keiser did not know or receive a report
that Claimant’s injury was work-related before June 4, 2013. The WCJ’s finding is
based on credibility determinations that are beyond this Court’s ability to set aside.
Questions of credibility and evidentiary weight belong to the factfinder. Kocher’s
IGA, 729 A.2d at 147.
Claimant acted against her self-interest and in favor of what she
believed to be the interest of her co-workers by not reporting the facts of her injury
when it occurred. Employer may have influenced her decision with its bonus plan.
8
Roberts was not called as a witness.
12
However, there is no escaping the plain terms of Section 311 of the Act.
Accordingly, this Court affirms the Board’s adjudication.
______________________________________
MARY HANNAH LEAVITT, President Judge
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Tammi Burch, :
Petitioner :
:
v. : No. 575 C.D. 2017
:
Workers’ Compensation Appeal :
Board (Graham Packaging), :
Respondent :
ORDER
AND NOW, this 1st day of March, 2018, the order of the Workers’
Compensation Appeal Board, dated April 6, 2017, in the above-captioned matter is
hereby AFFIRMED.
______________________________________
MARY HANNAH LEAVITT, President Judge