Sell v. Workers' Compensation Appeal Board

*128 ZAPPALA, Justice,

Dissenting.

DISSENTING OPINION

Because it is clear that Appellant, Joan Sell, knew, or should have known, of the possible existence of her work-related injury on November 23, 1992, and failed to timely notify her employer within 120 days thereof as required by Section 311 of the Workers’ Compensation Act, 77 P.S. § 631, I dissent from the majority’s decision to the contrary.

As noted, Section 311 of the Act provides that a claimant must notify his or her employer of a work-related injury within 120 days of its occurrence, unless the employer is already aware that the injury has occurred. If timely notice is not provided, the claimant is barred from receiving compensation. The time for giving notice does not begin to run until the claimant knows, or by the exercise of reasonable diligence should know, of the existence of the injury and its possible relationship to his or her employment.

Here, the WCJ found that Appellant suffered from a chronic obstructive lung disease, emphysema, which was aggravated by her exposure to chemical irritants, particularly formaldehyde, while at work. Thus, the issue of notice turns on when Appellant knew or reasonably should have known that her underlying respiratory ailment was affected by the daily and repetitive exposure to chemical fumes, odors and dust in the workplace. The WCJ made the following relevant finding in this regard:

6. Claimant credibly testified that as a result of continuous and daily exposure to dust, fumes and odors from the manufacturing process, she developed difficulty with breathing. She developed shortness of breath and wheezing, along with other symptoms, including dizziness and nausea. A pattern of becoming increasingly ill with these symptoms as she continued to be exposed to these chemicals throughout the work week was demonstrated. Claimant testified that her symptoms would improve over the weekend, while being away from the exposiores. The pattern would repeat itself with the start of a new workweek. Claimant farther *129 testified that she had no health problems when she started 'working with the Defendant in 1979. No evidence was presented to the contrary.

WCJ’s decision at 3 (emphasis added).

Other evidence of record reveals that on November 23, 1992, Appellant had great difficulty breathing and immediately went to the hospital, where she was admitted as an in-patient. Upon discharge from the hospital, Appellant did not return to work. Thereafter, Appellant searched for a physician with knowledge of the chemicals and dust in her work environment. She contacted the American Lung Association in 1993 because she “couldn’t find a doctor that would even discuss chemicals, dust, [her] work environment.” N.T., 9/7/94 at 19-20. She told co-workers that she thought her problems might be work-related, although she did not inform her supervisor of this fact because she “didn’t have any proof.” Id. at 33-34, 125 A.2d 365 . Finally, when Appellant was able to confirm her suspicions that her injury was work-related, through a physician’s diagnosis on August 31, 1993, she told the head of Appellee’s personnel department the following:

I told her that — I explained to her about the formaldehyde and how it had affected me, and how I knew that that’s what caused the attack. But I had to get a doctor that knew about formaldehyde. Doctor’s [sic] don’t seem to know about that.

Id. at 21-22, 125 A.2d 365 (emphasis added).

In my view, the substantial evidence of record does not support the WCJ’s conclusion that Claimant did not know of the relationship of her injury to her employment until August 31, 1993, when she received a medical diagnosis to this effect. Clearly, Appellant knew of the possible relationship between the symptoms she was experiencing and the work environment after she had the acute attack on November 23, 1992. Thereafter, she continually sought medical confirmation of this fact. That she did not have a medical diagnosis confirming her knowledge is not significant for purposes of the 120 day notice requirement of Section 311. The majority would seem *130 ingly require a claimant to know absolutely the causal relationship between an injury'and its work-relatedness before the 120 day period of Section 311 is triggered. This, however, is not what the language of the provision states. To the contrary, the provision states that the time begins to run from when an employee “knows, or by the exercise of reasonable diligence should know, of the existence of the injury and its possible relationship to his employment.”

Here, as Appellant knew of the existence of her injury and its possible relationship to her employment as of November 23, 1992, she was required to inform her employer of her injury within 120 days thereof. Appellant would then have had up to three years, pursuant to 77 P.S. § 602, to file a claim petition setting forth the specific allegations regarding her injury. Since Appellant failed to give timely notice of her injury, I would affirm the Commonwealth Court’s decision and order.