Sunday Doesn’t Count for PA’s 120-day Notice to Employer Even if It’s Open for Business

The 120-day period for providing notice of injury to the employer found in Section 311 of the Pennsylvania Workers’ Compensation Act [77 P.S. §631] is, as are all time frames set forth in Pennsylvania’s statutes, subject to Section 1908 of the Statutory Construction Act of 1972, held the Pennsylvania Commonwealth Court in Holy Redeemer Health Sys. v. Workers’ Comp. Appeal Bd. (Figueroa), 2020 Pa. Commw. LEXIS 833 (Dec. 31, 2020). Accordingly, where the 120th day after Claimant’s work-related injury fell on a Sunday, her deadline for giving notice of injury to her employer was the next day. That her employer, a hospital, was open for business 24 hours per day, 365 days per year, did not alter the operation of Section 1908. The court stressed that the 120-day notice period was not to be determined by the type of business in which the employer was engaged.

Background

Claimant, an emergency room nurse, contended that she suffered a work-related injury on July 25, 2015. On November 23, 2015, she notified her employer of the injury. It issued a notice of temporary compensable payable, but later issued a notice of compensation denial and a notice stopping temporary compensation payable, stating that Claimant did not sustain a work injury. Claimant subsequently filed a claim petition alleging a work injury in the nature of an aggravation of degenerative disc disease of the lumbar spine.

Day Late?

After a hearing, the WCJ found that Claimant proved that she suffered a work injury on July 25, 2015, with her credited testimony and with the testimony of her medical expert. The WCJ found, however, that Claimant’s November 23, 2015, notice to Employer of her work injury was one day late under the Workers’ Compensation Act (Act). Section 311 of the Act [77 P.S. §631] provides:

[N]o compensation shall be due until such notice be given, and, unless such notice be given within one hundred and twenty days after the occurrence of the injury, no compensation shall be allowed.

Finding that Claimant notified Employer 121 days after the occurrence of her injury, the WCJ denied compensation benefits. The Board disagreed, finding that the 120-day period of time established by Section 311 fell on Sunday, November 22, 2015 and, therefore, that Claimant was required to give notice by Monday, November 23, 2015, and she did so. The Board remanded the matter to the WCJ to calculate the amount of compensation to be awarded to Claimant. After the matter was remanded, the WCJ determined that Claimant’s disability began on November 23, 2015. The employer appealed.

Open 24 Hours a Day

The employer contended, inter alia, that there had been no impediment to giving the employer notice on the 120th day since it was a hospital open 24 hours a day, 365 days a year.

Section 311 is Silent on How to Calculate the 120-day Time period

The appellate court indicated the existence of the 120-day notice requirement was clear in Section 311, but the statute was certainly silent on how to calculate the time period. The court observed that the General Assembly had directed that all time periods stated in any statute must be construed in accordance with Section 1908 of the Statutory Construction Act of 1972. The court stressed that the legislature could have stated in Section 311 that notice of a work injury had to be given on a Sunday if the employer was open for business that day. It did not.

The court added that, effectively, the employer sought to add language to Section 311 to make the calculation of the 120-day notice period dependent on whether the employer operated over the weekend. It was not for the courts to add, by interpretation, to a statute, a requirement that the legislature had not seen fit to include.

The court agreed with Claimant’s contention that the Act was remedial and must be liberally construed in order to effectuate its humanitarian objectives. The employer urged a technical reading of Section 311 that, additionally, contravened the legislature’s express directive in Section 1908 of the Statutory Construction Act of 1972. Equally problematic was the lack of any language in Section 311 to support Employer’s position that the 120-day notice period was to be determined by the type of business in which the employer was engaged. The court, therefore, held Section 1908 of the Statutory Construction Act of 1972 required the omission of a Saturday or Sunday when calculating the 120-day notice period set forth in Section 311 of the Act. Accordingly, Claimant gave timely notice of her work injury to Employer.