On November 23, 2015, the Commonwealth Court of Pennsylvania held that an employee’s notice to his employer, stating that he was experiencing back pain as a result of cumulative trauma, served as timely notice of a work-related injury. Gahring v. WCAB (R and R Builders and Stoudt’s Brewing Company), No. 534 C.D. 2015.

In Gahring, the claimant suffered a work-related low back injury in 1997 while working for R and R Builders (Employer I). He settled the indemnity portion of this claim via Compromise and Release Agreement in 2002. In 2010, he began working for Stoudt’s Brewing Company (Employer II). In 2011, the claimant began experiencing increased back pain, which culminated in surgery in 2012. Therefore, the claimant filed a claim petition against Employer I, and Employer I joined Employer II in the litigation.

During the course of litigation, the claimant testified that his hours were increased in October 2012 when another employee resigned, and with the increase in work hours, he experienced an increase in back pain. The claimant also testified that he told his supervisor at Employer II about his pain; his supervisor, through testimony, confirmed. The claimant’s supervisor also testified that he informed the office manager when the claimant informed him that he needed surgery. Finally, the claimant’s physician testified that his work at Employer II aggravated the 1997 injury and, in so doing, the physician noted that the claimant did not experience the pain which necessitated surgery until 2012 while working for Employer II.

The WCJ construed Employer I’s joinder petition to be a claim petition against Employer II and, relying upon the physician’s testimony, found that the claimant proved that he suffered a work-related aggravation of his pre-existing back condition during the course of his employment with Employer II. However, the WCJ denied the petition on the basis that the claimant did not give notice of the aggravation within 120 days of his last date of work. The WCAB affirmed.

On appeal, the Commonwealth Court followed the Supreme Court’s decision in Gentex Corporation v. WCAB (Morack), 23 A.3d 528 (Pa. 2011) and reversed. The court found that the claimant reported his increasing back pain to his supervisor, whose testimony not only confirmed the claimant’s reports but also correlated the additional pain to the increase in the claimant’s hours. The court noted that the claimant’s cumulative statements to his supervisor “were sufficient to inform Employer II of the possibility that it was work-related.”

What It Means to You

Notice requires less from an employee than “I injured myself at work in the form of (insert text) on (insert text) day.” In cases of cumulative trauma, an employee need not state with certainty that the injury is work-related. Instead, all he or she needs to do is to inform the employer of the possibility that his or her injury is work-related.