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Schriver v. Workers' Compensation Appeal Board12/14/2005
Leslie Schriver (Claimant) appeals from an adjudication of the Workers' Compensation Appeal Board (Board) denying his claim for benefits. The Board affirmed the decision of the Workers' Compensation Judge (WCJ) that because Claimant failed to give his employer timely notice of his injury, he was not eligible for disability. On appeal, we are asked to consider whether the WCJ capriciously disregarded evidence in reaching this determination.
Claimant was working for the Department of Transportation (Employer) as an equipment operator and laborer, when, on May 1, 1978, Claimant sustained a work-related injury to his back. Claimant began receiving benefits in the amount of $160.50 per week, and over the next several years, Claimant was on and off work. Each time he left work, Claimant and Employer executed a new supplemental agreement. On December 31, 1988, Claimant left work, and on January 3, 1989, he executed another supplemental agreement that reinstated his $160.50 weekly disability benefit.
On September 13, 1991, Employer filed a petition to terminate compensation benefits alleging that Claimant had fully recovered from his 1978 injury. The WCJ denied Employer's termination petition and increased Claimant's compensation rate to $272.92 per week, based upon Claimant's 1988 wages. The Board affirmed the WCJ's decision that Claimant had not fully recovered. However, it modified the WCJ's disability award to $160.50 per week because there was no evidence that Claimant had suffered a new injury in 1988. This Court then vacated the Board's order and directed a remand to the WCJ to make findings on whether Claimant suffered an aggravation injury in 1988. Schriver v. Workmen's Compensation Appeal Board (Department of Transportation), 699 A.2d 1341 (Pa. Cmwlth. 1997).
On remand, the WCJ found that Claimant had sustained an aggravation injury in December 1988 and awarded disability benefits based upon Claimant's 1988 wages. Employer appealed, and the Board vacated the WCJ's decision because the WCJ made no findings on whether Claimant had provided timely notice to Employer of the 1988 injury. See Section 311 of the Workers' Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง631. The Board remanded the case to the WCJ for further findings on the issue of notice.
On remand, the Claimant testified that he never filled out any claim forms for the 1988 injury; further, he never requested claim forms from his foreman. Reproduced Record at 24a, 26a (R.R.__). When asked if he told the foreman he had suffered a new work-related injury, Claimant answered, "I told him that my back --- the job was making my back worse in '88. It was probably from the '81, you know, when I had surgery in '81. The job kept aggravating my situation." R.R. 24a. Then, when asked whether he told his foreman that he wanted the injury recognized as a workers' compensation injury, Claimant answered, "Oh, no. I never told him that. No, no." R.R. 26a. When asked if he wanted his complaint of increased pain to be recognized as a workers' compensation injury, he answered, "No. I never mentioned that at all." Id. Claimant also testified that he was represented by counsel when he signed the supplemental agreement dated January 3, 1989, indicating he was again disabled by his 1978 work injury. Upon this evidence, the WCJ found that Claimant failed to prove that he provided timely notice to Employer that he had aggravated his 1978 work injury in 1988.
Claimant appealed to the Board. He argued that the WCJ capriciously disregarded uncontroverted evidence that he had notified Employer in a timely manner of his 1988 injury. This evidence existed, he asserted, in the form of his oral
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