The opinion of the court was delivered by: Judge Leavitt
Submitted: October 24, 2008
BEFORE: HONORABLE DORIS A. SMITH-RIBNER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JIM FLAHERTY, Senior Judge.
Jacqueline Matthews (Claimant) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) denying her benefits for an aggravation of a work-related injury. The Board reversed the decision of the Workers' Compensation Judge (WCJ) to award benefits because the Board found that Claimant did not present any evidence that she gave Elwyn Institute (Employer) timely notice of her aggravation. Discerning no error in the Board's decision, we affirm.
Claimant was employed by Employer as a counselor at one of Employer's residential facilities for mentally handicapped persons. On October 31, 2003, Claimant filed a claim petition alleging that on January 16, 2003, she sustained a work-related injury to her left and right knees when a resident became combative and kicked her twice on the same day. It was later clarified by Claimant that she suffered an injury only to her left knee.*fn1 Claimant sought partial disability from February 22, 2003, through April 20, 2003, and full disability from April 21, 2003, ongoing, when she stopped working. Employer filed an answer denying the allegations.
At her deposition, Claimant testified that she was injured in her left knee on January 16, 2003, for which she first sought treatment on February 27, 2003. She continued to work until April when she was hit again in the left knee by another resident. In April, Claimant underwent outpatient surgery on her left knee and left work. In November 2003, Claimant was diagnosed with a pulmonary embolus, or blood clot, in her lung, which she believed was related to her January 2003 knee injury. On cross-examination, Employer's counsel inquired into other incidents that occurred after she left work in April of 2003. Claimant responded that her knee had been hurt at her sister's house and that on September 9, 2003, while driving "on [her] way to PT," she was involved in an auto accident. Reproduced Record at 23a (R.R. ___).
Claimant submitted the deposition testimony of Stewart Gordon, M.D., a board-certified orthopedic surgeon, who first examined Claimant on March 28, 2003. Dr. Gordon recommended surgery for Claimant's left knee, which was done in April. Claimant was progressing well except for two incidents of swelling that occurred when Claimant was injured at her sister's house and when Claimant was injured in the September 2003 motor vehicle accident. Dr. Gordon testified that according to the medical notes, Claimant sustained a contusion and strain to her left knee and an injury to her back in that automobile accident. He opined that Claimant had fully recovered from her January 2003 work-related injury but that she continued to suffer soreness and tenderness as a result of the motor vehicle accident. Dr. Gordon also noted that Claimant's medical records showed that Claimant developed a pulmonary embolus. On cross-examination, Dr. Gordon stated that the embolus was not related to the January 2003 work injury but, rather, to the automobile accident.
Employer presented the deposition testimony of Gail Foltz, who is employed by the PMA Insurance Group as a disability management coordinator responsible for the long-term and short-term disability programs offered to Employer and to other group policyholders. She testified that Claimant applied for and received both short-term and long-term disability benefits under this program. Foltz confirmed that these disability benefits are provided to employees who are not able to work because of an illness, accident, or injury that is not work-related.
The WCJ granted Claimant's claim petition for a closed period, finding that Claimant had sustained her burden of proving a work-related injury to her left knee from which she had fully recovered as of April 16, 2004. The WCJ found that Claimant had sustained a blood clot as a result of the September 2003 motor vehicle accident but found that this accident was "not related to Claimant's work injury."
WCJ Decision of 1/05/05, Finding of Fact
Both parties appealed. Claimant argued that the WCJ erred in holding her fully recovered as of April 16, 2004. The Board vacated, in part, the WCJ's decision. The Board observed that if Claimant's accident had occurred while en route to treatment for a work injury, injuries she sustained in that accident would be compensable "provided that Claimant has met the necessary burdens." Board Opinion at 11, R.R. 240a. Specifically, the Board noted that the injuries sustained in the auto accident were separate and distinct from her January 16, 2003, work injury and that Claimant had the burden of proof on each element of her claim for compensation for injuries sustained in the September auto accident. Id. at n.11. The Board remanded the case for the WCJ to make "all necessary findings." Id.
On remand, neither party produced any additional evidence, but relied on the record from the initial proceedings. In a decision circulated August 8, 2007, the WCJ found that Claimant's work injury should be expanded to include the re-injury of her left knee, an injury to her back, and a blood clot in her lung, which resulted from the September 2003 motor vehicle accident. The WCJ found Claimant totally disabled and awarded ongoing total disability payments.
Employer appealed, asserting, inter alia, that the WCJ had erred in awarding benefits for the injuries sustained in the automobile accident because Employer had never been notified that Claimant believed that the injuries she sustained in the auto accident were compensable. The Board agreed, finding the record devoid of evidence that Claimant notified Employer that she had suffered an additional work injury on September 9, 2003, at any point during the 120-day notice period prescribed by Section 311 of the Workers' Compensation Act (Act), Act ...