           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Harry Whitman,                         :
                        Petitioner     :
                                       :
            v.                         :   No. 1853 C.D. 2014
                                       :   Submitted: May 8, 2015
Workers’ Compensation Appeal           :
Board (Bimbo Bakeries),                :
                        Respondent     :


BEFORE: HONORABLE DAN PELLEGRINI, President Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                           FILED: August 13, 2015

            Harry Whitman (Claimant) petitions for review of an order of the
Workers’ Compensation Appeal Board (Board), which reversed a decision of the
Workers’ Compensation Judge (WCJ), thus denying Claimant’s claim petition for
workers’ compensation benefits. For the reasons discussed below, we vacate and
remand.
            Claimant began working for Bimbo Bakeries (Employer) in 1992.
In 2007, Claimant began experiencing problems with his left leg. In January 2010,
Claimant went to see Dr. Tahirul Hoda, M.D., when the pain became
overwhelming, and he discovered a lump on the left side of his groin. Dr. Hoda
informed Claimant that he could not return to work, and Claimant’s last day of
employment was January 8, 2010. Dr. Hoda then referred Claimant to Dr. Xiu-Jie
Wang, M.D., who diagnosed Claimant with venous insufficiency, edema, and
painful varicose veins in the left groin.     Claimant had surgery, but he still
experiences constant pain.    On February 2, 2012, Claimant filed a workers’
compensation claim, which Employer disputed.
            Following a hearing, the WCJ made the following pertinent findings
of fact:
            1. On February 2, 2012 the Clamant in this matter filed a
            Claim Petition which alleges that he sustained a work
            injury described as left leg chronic venous insufficiency
            with pain, chronic left inguinal pain and left knee pain.
            The petition alleges total disability as of January 8, 2010.
            [Employer] filed a timely Answer, denying all material
            allegations.
            ....
            3. It is undisputed the Claimant’s last day of work was
            January 8, 2010 and that he does indeed suffer from left
            chronic venous insufficiency with left inguinal pain and
            left knee pain.
            ....
            5. The Claim Petition which has been filed in this matter
            alleges that notice was provided to [Employer] on
            January 8, 2010 in the following manner: “I told the
            Human Resource Department and the doctor sent
            correspondence to the Employer.”
            ....
            6. . . . The Claimant testified that in August of 2010 he
            did have conversations with David White, the manager of
            the plant, about returning to work. . . .
            ....
            9. This Judge has carefully considered the testimony of
            the Claimant and has had the opportunity to evaluate the
            Claimant’s bearing and demeanor. This Judge finds the
            Claimant to be credible. His testimony is accepted as
            fact.

                                         2
              ....
              11. It is found as fact that the Claimant has been disabled
              as a result of his work injury since January 8, 2010.
              12. This Judge has carefully considered the question of
              notice. It is noted by this Judge that the Claim Petition
              states that notice was provided by the Claimant to the
              Employer in a discussion with the Employer and by a
              letter from Dr. Wang. The letter from Dr. Wang appears
              attached to the deposition of Dr. Hoda. This Judge has
              carefully considered this letter and finds that it does not
              contain the statement that the Claimant suffered from a
              work injury. Accordingly, this Judge finds that there has
              been no proof that the Claimant provided notice to
              [Employer] of his work injury within one-hundred twenty
              (120) days.
(Reproduced Record (R.R.) 12-13.)
              The WCJ then made the following pertinent conclusions of law:
              1. The parties to this action are bound by the
              Pennsylvania Workers’ Compensation Act [(Act1)], as
              amended.
              2. The Claimant has proven by sufficient, competent,
              and credible evidence that he sustained a work injury in
              the form of an aggravation of chronic venous
              insufficiency of the left leg and chronic left inguinal pain.
              The claimant has proven that he became disabled as a
              result of this work injury as of January 8, 2010.
              3. The Claimant has failed to prove that he gave notice
              of this injury within one-hundred twenty (120) days as
              required by the Act. Accordingly, the Claimant is
              entitled to receive Temporary Total Disability benefits as
              of February 2, 2012, the date of the filing of the Claim
              Petition.


     1
         Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.



                                              3
(R.R. 13.) The WCJ then entered an order granting Claimant benefits.
                 On appeal, the Board reversed the WCJ’s decision. The Board noted
that the WCJ found Claimant did not provide notice of his work related injury to
Employer within one-hundred twenty days, and it concluded that this finding of
fact was supported by substantial evidence. The Board, therefore, reversed the
WCJ’s grant of benefits because failure to provide notice to Employer operates as a
bar to relief under Section 311 of the Act.2
                 On appeal3 to this Court, Claimant argues that the Board erred in
reversing the WCJ’s grant of benefits and was instead required to remand the case
to the WCJ for clarification or explanation, because the Board identified an
inconsistency between the WCJ’s findings of fact and conclusions of law.
Employer argues that there was no inconsistency between the WCJ’s findings of
fact and conclusions of law, but rather that the WCJ made an error of law when he
awarded benefits after finding Claimant failed to notify Employer.
                 Section 311 of the Act provides, in pertinent part:
                 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

       2
           77 P.S. § 631.
       3
         This Court’s standard of review is limited to determining whether substantial evidence
supports the WCJ’s necessary findings of fact, whether the Board violated its procedures, and
whether any constitutional rights were violated or any error of law was committed. Mackey v.
Workers’ Comp. Appeal Bd. (Maxim Healthcare Servs.), 989 A.2d 404, 406 n.2 (Pa. Cmwlth.),
appeal denied, 997 A.2d 1180 (Pa. 2010).



                                              4
              twenty days after the occurrence of the injury, no
              compensation shall be allowed.
Thus, under Section 311 of the Act, “a claimant must provide notice to the
employer of the occurrence of an injury within 120 days of that injury.” Storer v.
Workers’ Comp. Appeal Bd. (ABB), 784 A.2d 829, 831 (Pa. Cmwlth. 2001), appeal
denied, 793 A.2d 912 (Pa. 2002). Section 311 of the Act is mandatory and bars a
claim where the WCJ finds that a claimant failed to provide notice of the
work-related injury to the employer within the 120-day timeframe. Id. at 832.
              Here, the WCJ found that Claimant suffered a work-related injury “in
the form of an aggravation of chronic venous insufficiency of the left leg and
chronic left inguinal pain,” and that as a result of his work-related injury, Claimant
was disabled. (R.R. 12-13.) The WCJ also found that Claimant failed to provide
notice of his work-related injury to Employer within 120 days as required by
Section 311 of the Act. Despite this finding, the WCJ concluded that Claimant
was    “entitled   to   receive    Temporary       Total   Disability    benefits    as   of
February 2, 2012, the date of the filing of the Claim Petition.” (R.R. 13.) The
WCJ offered no explanation for this apparent contradiction.
              This Court has held that when there is an apparent inconsistency
between the WCJ’s findings of fact and conclusions of law, the Board should
remand the case to the WCJ for explanation and clarification. See Craftsmen v.
Workers’ Comp. Appeal Bd. (Krouchick), 809 A.2d 434, 438 (Pa. Cmwlth. 2002),
appeal denied, 823 A.2d 146 (Pa. 2003). As we explained in Craftsmen:
                   Pursuant to Section 419 of the Act,[4] the Board
              may remand a case where the WCJ’s findings are not

       4
         Added by the Act of June 26, 1919, P.L. 642, as amended, 77 P.S. § 852. Section 419
of the Act provides, in pertinent part: “The board may remand any case involving any question
(Footnote continued on next page…)

                                             5
             supported by substantial evidence or where the WCJ fails
             to make findings on a crucial issue necessary for the
             proper application of the law. This section has been
             viewed as vesting virtually plenary remand power in the
             Board where it is determined that further factual findings
             are required to establish the entitlement to an award.
             Thus, if the Board determines the WCJ’s findings are
             unclear, or if the initial findings do not plainly set forth
             the basis for rejecting a claim, the Board may remand the
             case and the WCJ may reverse the original decision.
                    Moreover, where, as here, a WCJ makes findings
             that are inconsistent with his legal conclusions, the Board
             must remand the case for additional findings to clarify
             the decision.

Id. (citations omitted) (internal quotation marks omitted). Thus, because the WCJ
did not offer any reasoning or explanation for his decision to award Claimant
benefits after finding that Claimant failed to notify Employer within the 120-day
timeframe, the Board should have remanded the case to the WCJ for clarification,
explanation, or modification.
             Accordingly, the order of the Board is vacated, and the matter is
remanded to the Board with instruction for further remand to the WCJ in order for
the WCJ to clarify, explain, or modify his decision.



                                  P. KEVIN BROBSON, Judge




(continued…)

of fact arising under any appeal to a [WCJ] to hear evidence and report to the board the
testimony taken before him or such testimony and findings of fact thereon as the board may
order.”



                                            6
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Harry Whitman,                           :
                         Petitioner      :
                                         :
            v.                           :   No. 1853 C.D. 2014
                                         :
Workers’ Compensation Appeal             :
Board (Bimbo Bakeries),                  :
                        Respondent       :


                                      ORDER


            AND NOW, this 13th day of August, 2015, the order of the Workers’
Compensation Appeal Board (Board) is hereby VACATED, and the matter is
REMANDED to the Board with instructions for further remand to the Workers’
Compensation Judge for proceedings consistent with this opinion.
            Jurisdiction relinquished.




                               P. KEVIN BROBSON, Judge
