Case Law Summary

November 6, 2013

A&J Builders, Inc. v. WCAB(Verdi), __ A.3d __ (Pa. Cmwlth, No. 479 C.D. 2013, filed October 16, 2013.

 

The Verdi case involved several employers and the allegation of a work-related cumulative trauma injury. On appeal, A&J challenged the Appeal Board’s decision to affirm the granting of the claim petition by attacking the following findings: (1) that the claimant had provided timely notice and (2) that the aggravation had occurred while working for A&J versus the last-in-time employer, J.D. Miller.

 

The claimant in Verdi was a union drywall carpenter, who obtained work through a union hall. He worked for A&J from August 2004 -September 25, 2007 and then for J.D. Miller for three days until his last day of work on October 6, 2008. A claim petition was filed using the last day of work with J.D. Miller as the date of injury and identifying J. D. Miller as the employer. A second claim petition was filed against A&J, using the last day of work with A&J as the date of injury and alleging a repetitive trauma injury.

 

In granting the claim petition, the WCJ found that the claimant had established that he had sustained a material aggravation of his underlying knee condition, which ultimately forced him to stop working and left him incapable of working as a carpenter. The WCJ rejected claimant’s testimony that he attributed some of the cause to J.D. Miller, after crediting J.D Miller’s expert’s testimony that claimant’s work duties for J.D. Miller did not materially aggravate the claimant’s condition. He went on to grant the claim against A&J, finding that notice had been satisfied by the filing of the claim petition against A&G within 120 from when the claimant knew or should have known that his right knee condition was related to his employment.

 

Notice Argument:
The Commonwealth Court affirmed the WCJ’s decision to begin the running of the notice clock from the time when the claimant learned of the work-relatedness of his condition. While A&J argued that the claimant “should have known” of the connection given his demanding job duties, the Court rejected the constructive knowledge argument, noting that the WCJ specifically accepted the claimant’s testimony that he was unaware of any connection until a conversation with his doctor, which took place after he had stopped working. Accordingly, A&J was doing nothing more than trying to attack a credibility determination.

 

Assignment of Liability
The Court also rejected A&J’s second argument that the aggravation was sustained while working for J.D. Miller, the claimant’s last employer, noting that the WCJ had specifically accepted the testimony of J. D. Miller’s expert that claimant’s work duties with J.D. Miller did not materially aggravate his right knee condition. Noting that the WCJ was free to accept or reject, in whole or in part, the testimony of any witness, the Court affirmed that WCJ’s findings. The Court also rejected A&J’s argument that the decision was not reasoned, noting that the WCJ had properly considered all evidence before him, made the necessary findings and conclusions and had clearly articulated his reasons for accepting and rejecting testimony.

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