IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Harry Whitman, :
Petitioner :
:
v. : No. 1853 C.D. 2014
: Submitted: May 8, 2015
Workers’ Compensation Appeal :
Board (Bimbo Bakeries), :
Respondent :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: August 13, 2015
Harry Whitman (Claimant) petitions for review of an order of the
Workers’ Compensation Appeal Board (Board), which reversed a decision of the
Workers’ Compensation Judge (WCJ), thus denying Claimant’s claim petition for
workers’ compensation benefits. For the reasons discussed below, we vacate and
remand.
Claimant began working for Bimbo Bakeries (Employer) in 1992.
In 2007, Claimant began experiencing problems with his left leg. In January 2010,
Claimant went to see Dr. Tahirul Hoda, M.D., when the pain became
overwhelming, and he discovered a lump on the left side of his groin. Dr. Hoda
informed Claimant that he could not return to work, and Claimant’s last day of
employment was January 8, 2010. Dr. Hoda then referred Claimant to Dr. Xiu-Jie
Wang, M.D., who diagnosed Claimant with venous insufficiency, edema, and
painful varicose veins in the left groin. Claimant had surgery, but he still
experiences constant pain. On February 2, 2012, Claimant filed a workers’
compensation claim, which Employer disputed.
Following a hearing, the WCJ made the following pertinent findings
of fact:
1. On February 2, 2012 the Clamant in this matter filed a
Claim Petition which alleges that he sustained a work
injury described as left leg chronic venous insufficiency
with pain, chronic left inguinal pain and left knee pain.
The petition alleges total disability as of January 8, 2010.
[Employer] filed a timely Answer, denying all material
allegations.
....
3. It is undisputed the Claimant’s last day of work was
January 8, 2010 and that he does indeed suffer from left
chronic venous insufficiency with left inguinal pain and
left knee pain.
....
5. The Claim Petition which has been filed in this matter
alleges that notice was provided to [Employer] on
January 8, 2010 in the following manner: “I told the
Human Resource Department and the doctor sent
correspondence to the Employer.”
....
6. . . . The Claimant testified that in August of 2010 he
did have conversations with David White, the manager of
the plant, about returning to work. . . .
....
9. This Judge has carefully considered the testimony of
the Claimant and has had the opportunity to evaluate the
Claimant’s bearing and demeanor. This Judge finds the
Claimant to be credible. His testimony is accepted as
fact.
2
....
11. It is found as fact that the Claimant has been disabled
as a result of his work injury since January 8, 2010.
12. This Judge has carefully considered the question of
notice. It is noted by this Judge that the Claim Petition
states that notice was provided by the Claimant to the
Employer in a discussion with the Employer and by a
letter from Dr. Wang. The letter from Dr. Wang appears
attached to the deposition of Dr. Hoda. This Judge has
carefully considered this letter and finds that it does not
contain the statement that the Claimant suffered from a
work injury. Accordingly, this Judge finds that there has
been no proof that the Claimant provided notice to
[Employer] of his work injury within one-hundred twenty
(120) days.
(Reproduced Record (R.R.) 12-13.)
The WCJ then made the following pertinent conclusions of law:
1. The parties to this action are bound by the
Pennsylvania Workers’ Compensation Act [(Act1)], as
amended.
2. The Claimant has proven by sufficient, competent,
and credible evidence that he sustained a work injury in
the form of an aggravation of chronic venous
insufficiency of the left leg and chronic left inguinal pain.
The claimant has proven that he became disabled as a
result of this work injury as of January 8, 2010.
3. The Claimant has failed to prove that he gave notice
of this injury within one-hundred twenty (120) days as
required by the Act. Accordingly, the Claimant is
entitled to receive Temporary Total Disability benefits as
of February 2, 2012, the date of the filing of the Claim
Petition.
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
3
(R.R. 13.) The WCJ then entered an order granting Claimant benefits.
On appeal, the Board reversed the WCJ’s decision. The Board noted
that the WCJ found Claimant did not provide notice of his work related injury to
Employer within one-hundred twenty days, and it concluded that this finding of
fact was supported by substantial evidence. The Board, therefore, reversed the
WCJ’s grant of benefits because failure to provide notice to Employer operates as a
bar to relief under Section 311 of the Act.2
On appeal3 to this Court, Claimant argues that the Board erred in
reversing the WCJ’s grant of benefits and was instead required to remand the case
to the WCJ for clarification or explanation, because the Board identified an
inconsistency between the WCJ’s findings of fact and conclusions of law.
Employer argues that there was no inconsistency between the WCJ’s findings of
fact and conclusions of law, but rather that the WCJ made an error of law when he
awarded benefits after finding Claimant failed to notify Employer.
Section 311 of the Act provides, in pertinent part:
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
2
77 P.S. § 631.
3
This Court’s standard of review is limited to determining whether substantial evidence
supports the WCJ’s necessary findings of fact, whether the Board violated its procedures, and
whether any constitutional rights were violated or any error of law was committed. Mackey v.
Workers’ Comp. Appeal Bd. (Maxim Healthcare Servs.), 989 A.2d 404, 406 n.2 (Pa. Cmwlth.),
appeal denied, 997 A.2d 1180 (Pa. 2010).
4
twenty days after the occurrence of the injury, no
compensation shall be allowed.
Thus, under Section 311 of the Act, “a claimant must provide notice to the
employer of the occurrence of an injury within 120 days of that injury.” Storer v.
Workers’ Comp. Appeal Bd. (ABB), 784 A.2d 829, 831 (Pa. Cmwlth. 2001), appeal
denied, 793 A.2d 912 (Pa. 2002). Section 311 of the Act is mandatory and bars a
claim where the WCJ finds that a claimant failed to provide notice of the
work-related injury to the employer within the 120-day timeframe. Id. at 832.
Here, the WCJ found that Claimant suffered a work-related injury “in
the form of an aggravation of chronic venous insufficiency of the left leg and
chronic left inguinal pain,” and that as a result of his work-related injury, Claimant
was disabled. (R.R. 12-13.) The WCJ also found that Claimant failed to provide
notice of his work-related injury to Employer within 120 days as required by
Section 311 of the Act. Despite this finding, the WCJ concluded that Claimant
was “entitled to receive Temporary Total Disability benefits as of
February 2, 2012, the date of the filing of the Claim Petition.” (R.R. 13.) The
WCJ offered no explanation for this apparent contradiction.
This Court has held that when there is an apparent inconsistency
between the WCJ’s findings of fact and conclusions of law, the Board should
remand the case to the WCJ for explanation and clarification. See Craftsmen v.
Workers’ Comp. Appeal Bd. (Krouchick), 809 A.2d 434, 438 (Pa. Cmwlth. 2002),
appeal denied, 823 A.2d 146 (Pa. 2003). As we explained in Craftsmen:
Pursuant to Section 419 of the Act,[4] the Board
may remand a case where the WCJ’s findings are not
4
Added by the Act of June 26, 1919, P.L. 642, as amended, 77 P.S. § 852. Section 419
of the Act provides, in pertinent part: “The board may remand any case involving any question
(Footnote continued on next page…)
5
supported by substantial evidence or where the WCJ fails
to make findings on a crucial issue necessary for the
proper application of the law. This section has been
viewed as vesting virtually plenary remand power in the
Board where it is determined that further factual findings
are required to establish the entitlement to an award.
Thus, if the Board determines the WCJ’s findings are
unclear, or if the initial findings do not plainly set forth
the basis for rejecting a claim, the Board may remand the
case and the WCJ may reverse the original decision.
Moreover, where, as here, a WCJ makes findings
that are inconsistent with his legal conclusions, the Board
must remand the case for additional findings to clarify
the decision.
Id. (citations omitted) (internal quotation marks omitted). Thus, because the WCJ
did not offer any reasoning or explanation for his decision to award Claimant
benefits after finding that Claimant failed to notify Employer within the 120-day
timeframe, the Board should have remanded the case to the WCJ for clarification,
explanation, or modification.
Accordingly, the order of the Board is vacated, and the matter is
remanded to the Board with instruction for further remand to the WCJ in order for
the WCJ to clarify, explain, or modify his decision.
P. KEVIN BROBSON, Judge
(continued…)
of fact arising under any appeal to a [WCJ] to hear evidence and report to the board the
testimony taken before him or such testimony and findings of fact thereon as the board may
order.”
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Harry Whitman, :
Petitioner :
:
v. : No. 1853 C.D. 2014
:
Workers’ Compensation Appeal :
Board (Bimbo Bakeries), :
Respondent :
ORDER
AND NOW, this 13th day of August, 2015, the order of the Workers’
Compensation Appeal Board (Board) is hereby VACATED, and the matter is
REMANDED to the Board with instructions for further remand to the Workers’
Compensation Judge for proceedings consistent with this opinion.
Jurisdiction relinquished.
P. KEVIN BROBSON, Judge
H. Whitman v. WCAB (Bimbo Bakeries)
Combined Opinion