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Gentex Corp. v. Workers' Compensation

June 4, 2009

GENTEX CORPORATION AND GALLAGHER BASSETT SERVICES, PETITIONERS
v.
WORKERS' COMPENSATION, APPEAL BOARD (MORACK), RESPONDENT



The opinion of the court was delivered by: Senior Judge Flaherty

Submitted: April 24, 2009

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE JIM FLAHERTY, Senior Judge.

OPINION

Gentex Corp. (Employer) petitions for review from an order of the Workers' Compensation Appeal Board (Board) that affirmed the decision of a Workers' Compensation Judge (WCJ) granting a Claim Petition filed by Anne Marie Morack (Claimant). We reverse.

Claimant filed a Claim Petition on October 9, 2006 alleging she sustained bilateral hand and wrist injuries in the course and scope of her employment as of January 17, 2005. Employer filed an answer denying the allegations. It indicated that notice was an issue in this matter at the April 24, 2007 hearing. Reproduced Record (R.R.) at 43a.

Claimant testified that she began working for Employer as an Inspector whereupon she inspected lenses for helmets. After about twelve years, she moved to inspecting all parts for inside the helmets. She worked this job for about twenty-seven years. According to Claimant, she never experienced problems with her hands during these time periods. In 2003, her duties increased. Claimant went in an hour earlier to complete all of her duties. Claimant started having difficulties with her hands upon working with her new duties. She had swelling and pain. In addition, her fingers would get stuck in a certain position.

According to Claimant, she told Claire Lewis, her supervisor, of her complaints. She acknowledged she did not discuss what was causing her problems. At that time, she did not know what was wrong with her. Ultimately, on January 17, 2005, Claimant could not tolerate the pain anymore. She saw a doctor and was taken off work. She delivered the note taking her off work to the guard house. Pursuant to Employer's policy, she called in every day for the next five days saying that she would not be in. Claimant indicated she told Employer only that the doctor told her she was fatigued and could not use her hands for a while. Claimant applied for short-term disability benefits on February 2, 2005. She noted that her condition was not work-related. Specifically, Claimant put on the application that she had "swelling in arm's (sic), hands, knees and ankles due to Fibromyalgia pluss (sic) high blood pressure." Employer's No. 5.*fn1

Claimant was referred to Eugene Grady, M.D. Claimant asserted that at some point in February of 2005, she learned from Dr. Grady that her hand and wrist complaints were attributable to her employment. Claimant stated that thereafter she attempted to call Bernadette Montefor, Employer's human resources benefits manager, on several occasions to alert her of this fact. She left a voicemail for her indicating she had "work-related problems." R.R. at 57a. Claimant never went back to work after January 17, 2005. Although she was cleared for light duty, no position was made available.

Claimant presented the testimony of Dr. Grady, board certified in rheumatology, who examined her for the first time regarding her bilateral hand complaints on January 27, 2005. He diagnosed bilateral carpal tunnel syndrome in both hands, flexor tendonitis in her left thumb and left fourth digit, DeQuervain's tendonitis of the right hand, and a right wrist cartilage injury. As of February 24, 2005, he ruled out Claimant's pre-existing fibromyalgia as a cause of her instant complaints as well as osteoarthritis. According to Dr. Grady, these diagnoses were attributable to Claimant's employment.

Employer presented the testimony of Ms. Montefor who stated that if an employee has a work-related injury, it should be reported to her. She agreed Claimant reported injuries to her in the past. According to Ms. Montefor, she was unaware that Claimant was claiming work-related hand problems until September 19, 2006 when she received a copy of Claimant's Claim Petition. Ms. Montefor agreed that Claimant filed a short-term disability claim prior to the filing of the Claim Petition wherein Claimant indicated her difficulties were not work-related. She explained that Employer has a policy that if someone has a problem that they initially believe is non-work-related, they are to report any newly discovered information suggesting the injury is work-related as soon as possible. Ms. Montefor was not questioned regarding any voicemail(s) left by Claimant.

Employer also presented the testimony of Stephanie Sweet, M.D., board certified orthopedic surgeon, who examined Claimant on February 9, 2007. She did not believe Claimant's hand and wrist problems were caused by Claimant's employment. Instead, she believed Claimant's difficulties were age-related.

By a decision circulated November 29, 2007, the WCJ granted Claimant's Claim Petition. He awarded benefits as of January 17, 2005 for injuries in the nature of bilateral carpal tunnel syndrome, DeQuervain's tendonitis of the right hand, left fourth digit flexor tendonitis, left thumb flexor tendonitis, and a right wrist cartilage injury. On the issue of notice, the WCJ acknowledged that Claimant filed an application for short-term disability benefits indicating that her hand and wrist injuries were not work-related. He pointed out, however, that Claimant did not know her problems were work-related until she was examined by Dr. Grady. The WCJ reiterated that Ms. Montefor agreed that Claimant reported injuries to her in the past. He found that Claimant informed her that she now claimed her hand and wrist injuries were work-related by leaving a message on her voicemail. In rendering his decision, the WCJ credited Claimant's testimony over Ms. Montefor's testimony on the issue of notice. The WCJ credited the opinions of Dr. Grady over those of Dr. Sweet.*fn2

The Board affirmed in an opinion dated February 5, 2009. It recognized that Claimant was initially unaware that her hand and wrist injuries were work-related. The Board found, however, that Claimant testified that upon receiving confirmation from Dr. Grady that her problems were work-related, she called Ms. Montefor and left a message on her voicemail relaying that information.

The Board noted the WCJ credited this testimony and that credibility determinations are the sole province of the WCJ. Consequently, the Board rejected Employer's argument that Claimant failed to provide timely notice of her work-related ...


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