A recent Pennsylvania Supreme Court Decision, in Gentex Corporation v. WCAB (Morack), takes a bold leap forward in integrating voice mail into the modalities available to an injured employee seeking to provide his/her employer with notification sufficient to satisfy the sometimes ambiguous vagaries of Section 312 of the Pennsylvania Workers’ Compensation Act, for purposes of ensuring claim viability for compensability purposes.

Examining the subtle nuances of this Decision, particularly as it impacts on claim acceptance and denial, it can be compressed into the single bullet targeting the notice bulls eye, putting aside both medium or modality, that if an employee says, through voice mail, e-mail, or through the more traditional attorney letter of representation, that they cannot work because of an injury, irrespective of whether that declaration does not contain a specific reference to the employee believing that the injury is or is not work-related, as was the apparent case in Gentex, that communication could well constitute a Section 312-satisfying notice, such that the claim would not be dismissed or barred, at least by the Supreme Court, on grounds that the employee had been silent too long to be entitled to be compensated.

In fairness to the Supreme Court, the employee’s workers’ compensation claim in Gentex, contains some facts that resulted in the Concurring Opinion of Justice Baer authoring a scathing indictment of Gentex’s challenge/defense of its employee’s claim, calling Gentex’s defense as “unfortunate that someone in corporate management chose to pursue this regrettable course”, having pursued “a technical defense in the hope of avoiding its rightful obligation”, “rather than acknowledging the undisputed genesis” of the employee’s injury.

So how did Gentex ever involve an issue so important for the Supreme Court, in the opinion authored by Madame Justice Todd, to result in the Court concluding that “while this scenario providing notice was not ‘letter perfect’, the humanitarian purpose of the Act directs that “again a meritorious claim ought not, if possible, be defeated for technical reasons”, apparently seeking to exhume appellate sales with corrective wins, when the Gentex employee never specifically notified Gentex that she was unable to work because of a work injury within the 120 days as required by Section 311 of the Act, apparently satisfying Section 312 of the Act, that the injury preventing the employee from working was “considered” to be work-related by her treating physician.

Even the nuances look to be askew.

Perhaps some case facts will help us understand the leap from “I cannot work” to “I cannot work because of a work injury”.

The injured employee in Gentex began working for Gentex right out of high school, in 1960. After working for Gentex for 35 years, she stopped working in 2005, because of hand pain.

Working as a lens inspector for Air Forcehelmets, the employee, was required to sometimes handle hundreds of helmets on a daily basis, with each helmet weighing about 9 lbs. Over time, her job responsibilities and duties were increased, such that she began to arrive at work one hour early.

About 2 years before she stopped working, she noticed pain and swelling in her hand, while she was working. At times, her fingers would lock in certain positions, and she then told her supervisor, in January of 2005, that she could no longer tolerate the pain, and would have to leave work.

She then made an appointment for a medical evaluation, with the physician giving her a note excusing her from work. That note was never entered into evidence in the case.

She delivered the doctor note to Gentex, delivering it to the guardhouse, althoughshe did not have direct contact with anyone in risk management or human resources.

Over the next 5 days, she telephoned into work, indicating that she could not work because of swelling in her hands. On February 2, 2005, she applied for short term disability benefits, and, in the benefit application form, she indicated that she did not believe that her injury was work-related, listing her conditions as swelling in her arms, hands, knees, and ankles. She attributed those conditions to pre-existing fibromyalgia and highblood pressure, both of which had been diagnosed in 1993.

Eventually, she was referred to a rheumatologist, with the rheumatologist diagnosing her with bilateral carpal tunnel syndrome and flexor tendonitis, ruling out fibromyalgia or high blood pressure as the cause of her hand pain, further concluding that her hand pain was being caused by work-related injuries. The rheumatologist released her to return to work with restrictions on March 24, 2005, although no restricted-duty work was ever made available to her, and she was subsequently terminated from her employment with Gentex.

A critical question of fact arose in the case, as to the timing and order of events after the rheumatologist diagnosed her hand pain as being work-related, with her testifying that she had telephoned the human resources manager, had been unable to reach her, but had left her several voice mail messages regarding her injuries, although she never spoke directly to that HR manager.

The HR manager testified that she was working from home, on maternity leave, that she never spoke directly to the employee regarding her injury or claim, and that she only recalled one voice mail message from the employee, talking vaguely about “work-related problems”, without any specific information being given as to the nature, cause of the problem, body part affected, or why it was considered to be “work-related”. Moreover, the HR manager eventually testified that she did not become aware that the employee was making a claim for workers’ compensation benefits until Gentex received the Claimant’s Claim Petition, filed in October of 2006.

Procedurally, the workers’ compensation judge found in favor of the Claimant, finding that she sustained a work-related injury, and finding that she had given notice to her employer, accepting her testimony on that issue as more credible than that of the HR manager. In so ruling, the WCJ found and concluded that the Claimant had sufficiently described her injuries to her employer pursuant to Section 312 of the Act, the same requiring that the employee notify the employer that the employee “received an injury, described in ordinary language, in the course of his/her employment on or about a specified time, at or near a place specified”. 77 P.S. § 632.

Not surprisingly, as otherwise we would not have this decision to review, the employer filed an appeal of the WCJ’s decision, to the Pennsylvania Workers’ Compensation Appeal Board, with the Appeal Board, no less surprisingly, affirming the WCJ’s decision, likewise concluding that she had satisfied the notice/description requirements of Section 312, by virtue ofher voicemail message to the HR manager, in which she had indicated that she had “worked-related problems”.

Again without surprise, the employer filed an appeal of the Appeal Board’s ruling to the Pennsylvania Commonwealth Court, with the Commonwealth Court concluding that she had given timely notice of her injury, satisfying Section 311 of the Act, but that her description of her injury as being work-related to her employer was insufficient to satisfy the description requirements of Section 312. So ruling, the Commonwealth Court concluded that the voicemail message left with the employer’s HR manager had been legally insufficient to describe the injury in “ordinary language”, reversing the granting of the Claimant’s Claim Petition by both the WCJ and the Appeal Board.

As with cream always rising to the top, the Supreme Court granted allocator specifically to determine “what constitutes sufficient notice under Section 312 of the Act”, as well as to determine “an employer’s duty to conduct the reasonable investigation into the circumstances surrounding a work-related injury”, which employer-initiated investigation would presumably be triggered by notice of an injury being perfected under both Sections 311 and 312 of the Act.

Without unnecessarily belaboring the nuanced and self-serving arguments advanced by both Morack and Gentex, the Court ultimately determined, in reliance not only on the evidence of record, legal arguments asserted, but also thankfully implicating, as the Court must from time to time reference, the Pennsylvania Statutory Construction Act, that the Act, being intended to benefit injured employees, requires liberal interpretations to effectuate humanitarian objectives, that hypertechnical injury descriptions need not be communicated, to satisfy “described in ordinary language”, as the bell-ringer in a disputed noticed claim.

Moreover, the Court found that notice, under Section 312, need not be given in a single communication, but can be communicated in the context of a series of communications or conversations between the employee and employer, that, when placed in their context, and viewed under the microscope of the totality of the circumstances, it was sufficient for the Court to conclude that “what constitutes adequate notice pursuant to Section 312 is a fact-intensive inquiry, taking into consideration the totality of the circumstances”.

This means what?

We know, maybe a lot, maybe nothing.

Breaking it down, or at least trying to, it means an injured employee can provide Sections 311 and 312 satisfying notice to his/her employer within 120 days of knowing that he/she has, or believes has, a work injury, so long as the employee informs the employer that the injury occurred as follows:

  • At work;
  • At a specified time and place;
  • That the injury is described in ordinary, not Shakespearian language;
  • Taking into consideration both the context and the setting of the injury (pretending to have no understanding of what that means?); and,
  • That the “notice” can be provided over time, and through a series of communications, if the exact nature of the injury and its work-relatedness is not immediately known to the employee.

Circuitously circling back on its own tail to rationalize this ruling, the Supreme Court conceded that the Claimant, at the time that she initially notified her employer of her hand injuries, was unaware that the injuries either were or might have been work-related, such that she could not have possessed the knowledge requisite to trigger the requirement of providing notice to her employer, who likely should have known what then took 6 years of appeals to figure out, that is, that a work injury was being/had been reported.

In effect, the Supreme Court ruled, while affirming the WCJ’s granting of the Claim Petition, and reversing the Commonwealth Court’s ruling, that the notice given by Morack was not “letter perfect”, but that it was sufficient to meet the requirements of the Act.

The Majority Opinion was joined in by Justices Castille, Eakin, McCaffery, and Melvin.

The Concurring Opinion

The Concurring Opinion, authored by Justice Baer and joined in by Justice McCaffery, scolded the employer for challenging/contesting the claim, by suggesting that “rather than acknowledging the undisputed genesis of her injuries and paying her the due compensation, Gentex opted to pursue a technical defense in the hope of avoiding its rightful obligation. It is unfortunate that anyone in corporate management chose to pursue this regrettable course”.


Justice Saylor authored a Dissenting Opinion, adopting the rationale utilized by the Commonwealth Court in its ruling on this issue. See, ­Gentex Corporation v. WCAB (Morack) 975 A.2d 1214 (Pa. Cmwlth. 2009).

In reversing the rulings of the WCJ and Appeal Board, the Commonwealth Court had held that she did not satisfy the notice/description requirements of Section 312, asher voicemail message to Gentex’s HR manager had not been specific or descriptive enough to indicate that she was reporting a work-related injury, coupled with the Commonwealth Court’s reliance upon her self-executed short term disability benefits claim form, in which she had indicated that her injuries were not work-related, attributing the same to pre-existing conditions.

In so holding, the Commonwealth Court had ruled that she had not given a “reasonable description of her work-related injuries”, as required under Section 312 of the Act.


Pretty simple?

Issue clarified?

The short answer is, no!

In truth, the Gentex decision would seem to significantly expand the employer’s duty to investigate what might otherwise be a rather cryptic description indirectly suggesting employee-conceived impressions of a work injury, effectively magnifying the ache that the employee came to work with into the lumbar fusion that you now need to find sufficient reserves to settle, or for which some type of work can be offered to reduce the ill-described exposure.

One also has to wonder why the very simple requirement of describing what an employeehas probably long-suspected is so difficult to understand, particularly when there is sucha delay in the injury being reported by employee to employer, and when the description given by the employee to the employer is, well, not only not “letter perfect”, but actually presupposes, if we accept the Supreme Court’s logic, that the employer should have known not only that the work injury was being reported, but that it should not have been surprised, since it should have always known that its employee would one day report that work had injured he/she.

So, in essence, does Gentex stand for the proposition that “I work, therefore, I must be injured”, or does it instead stand for the proposition that “they work for us, so we better expect them to get injured?”.

Truthfully, is there ever a difference?

So what do you, as employer, need to do, beyond checking and responding to voicemails that may or may not indicate that a work injury is being reported, with the answer perhaps being that the employer, when presented with a medical note excusing an employee from work, should, at that time, directly ask the employee if the employee is reporting or claiming a work injury, and, if so, why so.

Pondering that puzzled perplexity, one wonders if that is what Section 312 statutorily intended?

– By Kevin L. Connors

ConnorsLaw LLP

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