A & J Builders, Inc. v. Workers' Compensation Appeal Board
2013 Pa. Commw. LEXIS 419
| Pa. Commw. Ct. | 2013Background
- Claimant Anthony Verdi, a drywall carpenter, worked for A&J Builders, Inc. (A&J) Aug 2004–Sept 25, 2007 and for J.D. Miller Construction Co. (J.D. Miller) Oct 6, 2008.
- Claimant filed a claim petition against J.D. Miller in June 2009 for a right knee repetitive trauma injury on Oct 6, 2008.
- Claimant filed a second petition against A&J on July 10, 2009 for a knee injury on Sept 25, 2007 and ongoing disability from Oct 6, 2008.
- The WCJ granted the petition against A&J, found against J.D. Miller, and ruled timely notice under Section 311 was satisfied for A&J.
- The Board affirmed; the case on appeal to the Commonwealth Court concerned (1) timeliness of notice under Section 311 and (2) assignment of liability to A&J rather than J.D. Miller.
- The court held the WCJ’s decision was supported by substantial evidence and was a reasoned decision; notice to A&J was timely and liability properly assigned to A&J.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of notice under Section 311 for cumulative trauma | Verdi argues notice to A&J within 120 days of learning work relation was not timely | A&J contends notice untimely because last employment for A&J ended 2007 and 120 days expired | Timely notice found; discovery rule applied; notice commenced from March 31, 2009 and July 10, 2009 within 120 days. |
| Liability—whether A&J or last-in-time employer J.D. Miller is responsible | Verdi’s knee condition aggravated by work at A&J and J.D. Miller; A&J liable for aggravation | Employer’s Physician said J.D. Miller did not materially aggravate; A&J responsible for causal link | Affirmed liability against A&J; rejected assignment to J.D. Miller based on substantial evidence and credibility determinations. |
| Compliance with reasoned decision requirements (Section 422(a)) | WCJ did not adequately explain credibility/evidence weighing | WCJ provided objective basis for credibility and rejected portions with justification | WCJ’s decision deemed reasoned; credibility determinations supported by record; affirmed. |
Key Cases Cited
- Sell v. Workers’ Comp. Appeal Bd. (LNP Eng’g), 565 Pa. 114 (Pa. 2001) (discovery rule tolls Section 311 notice timing; knowledge of injury and relation to employment)
- Williams v. Workers’ Comp. Appeal Bd., 578 Pa. 207 (Pa. 2004) (notice timely when last day of work occurs after disability begins in cumulative trauma)
- Allegheny Ludlum Corp. v. Workers’ Comp. Appeal Bd. (Holmes), 998 A.2d 1030 (Pa.Cmwlth.2010) (renewed knowledge/constructive knowledge; diligence standard in notice)
- Daniels v. Workers’ Comp. Appeal Bd. (Tristate Transp.), 574 Pa. 61 (Pa. 2003) (requirement to provide a reasoned decision when rejecting evidence)
- Dorsey v. Workers’ Comp. Appeal Bd. (Crossing Constr. Co.), 893 A.2d 191 (Pa.Cmwlth.2006) (explain credibility determinations to permit appellate review)
- Minicozzi v. Workers’ Comp. Appeal Bd. (Indus. Metal Plating Inc.), 873 A.2d 25 (Pa.Cmwlth.2005) (WCJ’s credibility determinations are reviewed deferentially)