“An individual who gets hurt at work as a result of a specific, distinct incident is entitled to workers' compensation benefits if the injury renders that individual disabled. It is easy to overlook instances where the daily grind of work results in the progressive worsening of symptoms over time, but these workers may also be entitled to workers' compensation benefits if the cumulative injury renders that worker disabled.” 

In Pennsylvania, the Workers' Compensation Act allows an employee to claim a work injury for more than just a traumatic incident. An injury need not be pinpointed to a specific event or definable incident as long as the injury arises in the course of employment and is related thereto, see Workers' Compensation Appeals Board (Young) v. Bethlehem Steel, 352 A.2d 571 (Pa. Cmwlth. 1976).

In fact, the act allows injured workers the ability to allege a disability related to repetitive trauma injury or cumulative trauma condition. For those of you are wondering what the difference is between the two types of injuries, the following is a brief overview: repetitive trauma includes conditions that develop over time due to the repetitive nature of an individual's job, such as, a secretary or receptionist who types daily developing carpal tunnel syndrome; and cumulative trauma can develop in the form of occupational diseases, for example, a dry cleaner breathing in chemical fumes over an extended period of time.

Although these work injuries are not related to just one specific incident, the burden of proving a work-related injury remains the same under the act. In a claim petition, the burden of establishing a right to compensation and proving all necessary elements to support an award rests with the claimant, as in Inglis House v. Workers' Compensation Appeals Board (Reedy), 634 A.2d 592 (Pa. 1993). The claimant must establish that her injury was sustained during the course and scope of employment and is causally related thereto, see McCabe v. Workers' Compensation Appeals Board (Department of Revenue), 806 A.2d 512 (Pa. Cmwlth. 2002). The burden of proof with respect to all elements of the claim rests with the claimant, as held in Innovative Spaces v. Workers' Compensation Appeals Board (DeAngelis), 646 A.2d 51 (Pa. Cmwlth. 1994). That burden never shifts to the employer, as in Inglis House.

In presenting the employee's evidence in a cumulative trauma case, it is necessary that the fact and medical testimony explain how each day on the job represents a separate trauma that is a substantial contributing factor to the ultimate inability to perform the time-of-injury job. The employee should stress the frequency with which a specific activity is performed on a given day in the same consistent manner. Alternatively, the employer's evidence should focus on the fact that the symptomatology and diagnoses remain the same through the employee's last day of work and that each day on the job did not alter the natural course of the impairment. This is because of the requirement that the employee give notice to the employer within 120 days of the injury. If the workers' compensation judge concludes that each day in the workplace represents a “new” and separate injury, the notice period will not begin to run until the employee's last day of work.

In that regard, when an employee alleges a work-related incident, he must provide notice to his employer within 120 days of a work-related accident. A claimant's failure to provide notice of a work-related injury within 120 days is a violation of Section 311 of the act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. Section 631. However, what if there is repetitive or cumulative trauma, when does the 120-day time period begin? The Pennsylvania Commonwealth Court determined that notice provided more than 120 days after onset of a disease, but before an opinion of causation can be timely, see Bullen v. Workers' Compensation Appeals Board (Hausmann), 960 A.3d 488 (Pa. Cmwlth. 2008), but not where the claimant knew within that 120 days that the condition was work related, see Allegheny Ludlum v. Workers' Compensation Appeals Board (Holmes), 998 A.2d 1030 (Pa. Cmwlth. 2010).

What does that mean? Well, let's break it down. First, if a person was not aware that their condition was related to their duties or conditions at work, then the 120-day period will not begin until he finds out that the condition is related to his employment. For instance, if I am having hand and wrist issues and stop working, but do not know that my condition is related to my job duties, but find out at a later time that my condition is causally related to my employment, then I would not be barred from bringing a claim. On the other hand, if I am working and I know that my employment is the cause of my condition, then I must provide notice within 120 days. However, in either scenario it is the best practice for an employee to always provide notice to their employer immediately upon knowledge of a work-related condition.

Additionally, another scenario to consider when applying the 120-day rule, is when an injury is aggravated daily. In this type of injury where there is a daily aggravation, each day constitutes a new injury, such that notice is timely if given within 120 days from the last day of work, as in Zurn Industries v. Workers' Compensation Appeals Board (Bottoni), 775 A.2d 108 (Pa. Cmwlth. 2000). However, the date of diagnosis, not the last day of work, can also be determined to be the date of injury for notice purposes, despite the claimant's continued work, as in Brooks v. Workers' Compensation Appeals Board (Anchor  Glass Container), 624 A.2d 821 (Pa. Cmwlth. 1993). In this situation, if a person continues to work and continues to aggravate their condition on a daily basis, then once they stop working a claimant will have 120 days since the last day they worked as that day is the most recent date of injury. However, as noted above, it is always important for an injured worker to report an injury immediately following the first onset of symptoms to ensure compliance with the act.

One situation where the 120-day rule does not apply is in regards to occupational diseases. These fall under different reporting time frames and must be reported within three years of the date that the condition became obvious. To qualify as an occupational disease, a condition must meet the following criteria:

• The employee's work must expose the employee to injury or disease;
• Some aspect of the employee's job must create a significant risk of injury or disease; and
• The employee must face a greater risk of the injury or disease than the general public does.

For further dissection of the 120-day rule, the following is a case decided by the Pennsylvania Commonwealth Court on Oct. 16, 2013. The Commonwealth Court ruled in the case of A&J Builders v. Workers' Compensation Appeals Board (Verdi), that an injured worker was entitled to Pennsylvania workers' compensation benefits from suffering a repetitive trauma injury to his right knee. In Verdi, the court found that the injured worker was only obligated to provide notice of his work injury to his employer at the time he learned of a connection between his knee pain and work duties from a physician. This was dubbed the “discovery rule.” The court also explained how the discovery rule coincides with the exception to the general notice rule when an injured worker does not know his disability is related to work.

The issue of whether the claimant gave adequate notice is based on the totality of the circumstances. See Section 312 of the Act, 77 P.S. Section 632. In either advocating for an injured worker or advocating on behalf of the insurance companies, the following are examples of some areas that should be considered prior to filing a claim petition and throughout the litigation of the claim petition:

• When was the onset of symptoms?
• When was the first treatment where the claimant likely had knowledge of a work injury?
• Did the injured worker ever report any symptoms as work-related to his/her employer?
• Evidence to support a conclusion that a claimant continued to experience a daily aggravation of symptoms up to the last date worked?
• When allegations of a repetitive trauma/daily aggravation are made, look for evidence of an aggravation of a claimant's underlying degenerative processes.
• When did a doctor first provide an opinion that a person's job duties, on a repetitive basis, caused the injuries that have prevented you from working?

From an employer's perspective in litigating the cumulative trauma case, the best defense is in the medical records. If the medical evidence does not support a continuing aggravation, the petition may be dismissed. A lack of medical evidence does not necessarily mean that a cumulative trauma cannot be proved, but it will make it more difficult for a medical expert to render an opinion within a reasonable degree of medical certainty as to causation.

As seen above, work injuries are more than just acute traumatic incidents. There are numerous injuries that can be classified as repetitive or cumulative trauma, as well as, aggravations. Therefore, it is important to keep in mind all time limits for reporting incidents and how the type of injury can toll specific time limits. Additionally, it is important to fully investigate these types of alleged injuries on a factual and medical basis to best represent your client, whether they are the injured worker or the employer.

Edward Barket Jr., an associate at Weber Gallagher Simpson Stapleton Fires & Newby, concentrates his practice on defending employers, business and insurance companies in workers' compensation matters. Contact him at [email protected].

Patrick Cummings, an associate with the firm, handles workers' compensation matters for insurance carriers, third party administrators and employers. Contact him at [email protected].