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April 22, 1997


Appealed From No. A95-0424. State Agency Workers' Compensation Appeal Board.

Before: Honorable James Gardner Colins, President Judge, Honorable Jim Flaherty, Judge, Honorable Emil E. Narick, Senior Judge. Opinion BY Senior Judge Narick

The opinion of the court was delivered by: Narick


FILED: April 22, 1997

The issues before this Court require us to examine what is required to be provided to an employer to give the requisite notice of a claimant's alleged injury, and if this notice was met, whether the claimant here met the burden of showing a work-related injury.

Benjamin H. Gribble (Claimant) appeals from the order of the Workers' Compensation Appeal Board (WCAB) that affirmed the Workers' Compensation Judge's (WCJ) denial of benefits to Claimant. We affirm.

Claimant worked for Cambria County Association for the Blind (Employer) as a textile cutter. Employer had received a government contract during the Persian Gulf War requiring Claimant to work extended shifts, ranging from nine to twelve hours a day, six days a week. Claimant's job required frequent heavy lifting of up to 100 pounds. On April 15, 1991, Claimant telephoned his supervisor to report off of work because his back went into spasms and he could not straighten up. Claimant saw his family physician and was off work for three weeks but received paid sick days and lost no wages.

Again on May 28, 1991, Claimant informed his supervisor that he could not work overtime because his back was hurting and he could not lift. He again sought treatment from his family physician, Robert Gvozden, M.D. Claimant was also seen by a neurosurgeon, Richard Douglas, M.D., who diagnosed Claimant as having "degenerative changes L4-5 disc mild bulge." Dr. Douglas released Claimant to return to work August 12, 1991, with a 50 pound weight restriction. (16a.) Dr. Gvozden's final diagnosis of Claimant was "chronic low back, status post laminectomy, approximately 1977, degenerative arthritis of the spine" and imposed a 30 pound weight restriction. (91a.)

On August 8, 1991, Employer sent letters to Dr. Gvozden and Dr. Douglas, asking whether or not Claimant could return to work. Dr. Douglas provided no reply but Dr. Gvozden indicated Claimant could not return to his job. Employer had no other available positions. By letter dated August 20, 1991, Employer gave Claimant information regarding vocational rehabilitation and advised Claimant to consider Social Security Disability as Claimant was legally blind in one eye. Further, the letter stated that "as you have been a loyal employee of the Association and in light of your present physical condition, the Association will pay through December 27, 1991, your usual weekly salary as well as your family Blue Cross/Blue Shield hospitalization plan." (14a.)

Claimant received his weekly salary and hospitalization plan payments until October 3, 1991, when Claimant's counsel sent Employer written notice of the alleged injuries. Employer then ceased making payments and cancelled Claimant's health coverage. Employer denied Claimant had sustained a work-related injury as Claimant had not provided Employer notice of such injury within the 120-day statutory time limitations.

Following a hearing, the WCJ denied Claimant benefits on the basis that Claimant's notice was not within the 120-day time limit set forth by Section 311 and 312 of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 631 and 632. The WCJ also found that even if Claimant had timely notified Employer the claim petition would still fail because Claimant did not prove that his injuries occurred during the course of his employment as his medical expert did not unequivocally state that Claimant's condition was due to his work activities. The WCAB affirmed.

On appeal to this Court, *fn1 Claimant argues that the WCAB erred in affirming the WCJ as the findings of fact regarding notice as the findings were not supported by substantial evidence and that the WCAB erred as a matter of law in holding that Dr. Gvozden's testimony was equivocal.

The WCJ made the following pertinent findings of fact:

8. (a) The testimony of Claimant, although credible, does not establish that he notified the Employer of a work-related injury. Claimant merely told the Employer that he was unable to work due to his back pain. He did not inform the Employer that his back pain was due to an ...

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