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A & J Builders, Inc./SWIF v. WCAB v Verdi (Pa. Cmwlth. 10/16/13)



Jeffrey D. Snyder, Esquire


This is a cumulative trauma case where the last employer in time was absolved of liability.


A Union carpenter was assigned through the Union to various employers.  The Claimant worked for A & J Builders, Inc. from August 2004 to September 5, 2007, and for J. V. Miller (Miller) for three (3) days until a final day of employment on October 6, 2008.


In pertinent part, there was a Claim Petition first against Miller and then a second Claim Petition was filed against A & J. 


The Claimant claimed a right knee injury from repetitive use in his usual job activities of carrying and installing drywall panels.  The Claimant was symptomatic at A & J Builders and continued to have discomfort, alleging that his knee was filled with fluid, when working for Miller.  He was laid off from Miller because the job was finished.


The Claimant’s physician attributed the Claimant’s knee discomfort to duties at both A & J and Miller.  Miller presented its medical expert, Dr. Duda, who considered the changes degenerative, with no contribution by job duties.  The WCJ credited the Claimant’s testimony to the extent that it focused on duties at A & J and rejected it as to contribution by job duties at Miller, the last employer in time.  The Judge relied in part on defense medical evidence absolving Miller. 


The major focus on appeal was twofold: whether the 120 notice requirement was met; and whether the last employer on the risk, Miller, was liable. The Court accepted a discovery rule on notice and found the notice timely based on a physician informing the Claimant of work relatedness. 


On the assignment of liability issue, the employer argued that the Judge’s finding that the last employer in time was not responsible was not supported by substantially competent evidence.  The Court pointed out that to the extent the Claimant’s medical expert found material aggravation of the knee at Miller, that conclusion was rejected in favor of the employer’s medical evidence suggesting no contribution by activities at Miller. 


The employer argued that the Judge could not rely on the employer’s medical expert testimony because that physician did not think any job duties at either entity contributed to the condition, but the Court noted that the WCJ was free to accept or reject any testimony, in whole or in part.  The Court cited to the record evidence that established no traumatic incident at Miller.





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