ADVERTISEMENTS

The Claimant never testified she informed her Employer of a connection between her work and aggravation of her foot condition. Notice in this case was identified as occurring on February 17, 2004. The claim petition was filed on December 9, 2004.

In the face of this record, the Claimant argued a November 11, 2004 report of her treating physician was the first opinion she received of causation. She argued her December 9, 2004 filing was within 120 days.

Obviously, the Claimant had given notice back in February. Furthermore, the Claimant testified her pain was worse at work than at home prior to her last date of work. The court distinguished the Supreme Court precedent of Sell v. WCAB(LNP Engineering), which stands for the proposition that the Claimant is not charged with knowledge of the injury until she receives a physician's report of causation. In Sell, the Claimant was a smoker and had to see a lot of doctors before she got an opinion relating her pulmonary symptoms to formaldehyde exposure.

The Court ultimately held the Claimant in this case knew or should have known the connection between her symptoms and her work duties before her last day of work and the 120 day notice period ran from that date.

The dissent would have remanded the case for the Claimant to go back to square one and testify about conversations she must have had with her employer between 1994 and 2003 from which the Employer might be charged with notice. It is incongruent to assume the Employer did not know the Claimant's work in metatarsal boots was aggravating her condition over the course of two prior surgeries and periods of disability with return to work and worsening of her condition. The purpose of the notice provision of the Act is to give the Employer the opportunity to conduct a contemporaneous investigation. Given the facts of this case -- including the lack of a medical opinion until November of 2004 -- it is as clear that the Employer should have known as it is that the Claimant should have known. It is, however, the Claimant's burden.

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