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Calculation of 120-Day Notice Requirement

How much time does an injured employee have to report a work-related injury to his or her employer?  Section 311 of the PA Workers’ Compensation Act provides:

Unless the employer shall have knowledge of the occurrence of the injury, or unless the employe or someone in his behalf, or some of the dependents or someone in their behalf, shall give notice thereof to the employer within twenty-one days after the injury, no 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.

The Act is silent as to how the 120-day time period is to be calculated.

The Commonwealth Court recently addressed the issue in the case of Holy Redeemer Health Systems v. Workers’ Compensation Appeal Board (Figueroa), No. 372 C.D. 2020, Filed December 31, 2020.  The pertinent factual timeline in that case is as follows:

Saturday, July 25, 2015:  Injury sustained

Sunday, July 26, 2015:  Claimant scheduled to work, but called off

Monday, July 27, 2015:  Claimant’s physician takes her off work

Monday, November 23, 2015:  Claimant first notified employer of work injury on July 25, 2015

The 120th calendar day after the claimant’s work injury fell on Sunday, November 22, 2015.  The employer argued that the claimant failed to give timely notice of the injury and, as such, no compensation should be payable.  The Court disagreed.

Under the Statutory Construction Act of 1972:  “When any period of time is referred to in any statute…Whenever the last day of any such period shall fall on Saturday or Sunday, or any day made a legal holiday by the laws of this Commonwealth or of the United States, such day shall be omitted from the computation.”  Many businesses in the early 1970s did not operate on weekends and so it was not possible to report an injury to one’s employer.  Accordingly, in accordance with the Statutory Construction Act of 1972, because the 120th day fell on a Sunday, this claimant had an extra day, or until Monday, November 23, 2015, to report her injury.

The employer argued that there was no impediment to the claimant providing notice of her injury on a Sunday.  Employer is a hospital that is open 24 hours a day, 365 days  a year.  In fact, the claimant was often scheduled to work on Sundays and was well aware that she could report the injury on a Sunday.  The Court was not persuaded.  Instead, the Court noted that the Legislature could have stated in Section 311 of the Act that notice of a work injury had to be given on a Sunday if the employer is open for business on that day but did not.  The Court refused to effectively add language to Section 311 of the Act so as to make the calculation of the 120-day notice period dependent on whether the employer operates over the weekend.

As such, the Court held that the Statutory Construction Act of 1972 requires the omission of a Saturday or Sunday when calculating the 120-day notice period set forth in Section 311 of the Act.  It can be inferred that the same would be applicable when calculating the 21-day notice period.  Given the operating schedules prevalent in business and industry in Pennsylvania, perhaps it is time for the Legislature to re-visit this issue.