IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Barbara Magro, :

:

Petitioner :

:

v. : No. 1681 C.D. 2017

: Submitted: March 9, 2018

Workers’ Compensation Appeal :

Board (Polar LLC), :

:

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE COLINS FILED: May 2, 2018

Barbara Magro (Claimant) petitions for review of an order of the 

Workers’ Compensation Appeal Board (Board) that affirmed the decision and order 

of a Workers’ Compensation Judge (WCJ) denying her claim petition on the ground 

that she failed to give timely notice of her work injuries. For the reasons set forth 

below, we affirm.

Claimant worked for Polar LLC (Employer) gluing and trimming 

leather goods at Employer’s custom leather goods manufacturing plant from 1993 

to April 2015. (WCJ Decision Findings of Fact (F.F.) ¶¶1a, 3a-3c, 5-6.) Between 

2011 and April 2015, Claimant had periods of absence from work ranging from 2

months to 15 months. (Employer Ex. 2, Karasik Dep. at 13, 27-28, 32-36 & Karasik 
2

Dep. Ex. 1 at 7-8, Reproduced Record (R.R.) at 70a, 73a-76a, 93a-94a; WCJ 

Decision F.F. ¶¶3c, 6.) Claimant called in regularly during these absences, telling 

Employer that she could not work because of stomach problems. (WCJ Decision 

F.F. ¶¶3c, 6; Employer Ex. 2, Karasik Dep. at 13, 27-29, 34-36, R.R. at 70a, 73a76a.) When Claimant returned to work in November 2013 after being absent for a 

year and three months, she told Mr. Karasik, who was her supervisor and Employer’s 

owner, that she had a hernia and that she could not lift heavy objects. (Employer 

Ex. 2, Karasik Dep. at 15-16, 18-19, 39-40, R.R. at 70a-71a, 76a-77a; WCJ Decision 

F.F. ¶¶3c, 3e, 6.) Mr. Karasik accommodated this limitation by providing Claimant 

a lighter weight to set on the stacks of glued product and by lifting weights and other 

heavy objects for her. (WCJ Decision F.F. ¶¶3c, 3e, 6; Employer Ex. 2, Karasik 

Dep. at 16, 24-25, 41-43, R.R. at 71a, 73a, 77a.) Claimant stopped working for 

Employer on April 24, 2015, and did not return. (WCJ Decision F.F. ¶¶1g, 5; 

Claimant Ex. 1, Claimant Dep. at 27, R.R. at 27; Hearing Transcript (H.T.) at 9, R.R. 

at 104a.) 

On October 19, 2015, Claimant filed a claim petition seeking disability 

benefits under the Workers’ Compensation Act (the Act),

1

asserting that she suffered 

from a “left ventrial [sic] hernia, cervical radiculopathy, lumbar radiculopathy, 

bilateral carpal tunnel syndrome, [and] trigger finger of the right index, ring, and 

middle fingers” caused by repetitive trauma in her performance of her regular job 

duties for Employer. (WCJ Decision at 3; Certified Record Item (R. Item) 2, Claim 

Petition ¶¶3, 14.) The WCJ held an evidentiary hearing, at which Claimant testified,

and also received deposition testimony of four witnesses: Claimant; Mr. Karasik;

 

1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
3

Claimant’s treating physician; and a physician who examined Claimant on behalf of 

Employer. 

Claimant testified that she was diagnosed with a hernia a few years 

before she stopped working in April 2015 and that around the same time she also 

began having pain in her hands and wrists, locking of the fingers on her right hand, 

and pain in her neck and back. (Claimant Ex. 1, Claimant Dep. at 18-24, R.R. at

18a-24a; H.T. at 7-9, R.R. at 102a-104a.) Claimant testified that her hands, neck 

and back hurt when she was at work and that she believes these problems and her 

hernia were caused by her work. (Claimant Ex. 1, Claimant Dep. at 23-25, 40-41,

R.R. at 23a-25a, 40a-41a; H.T. at 7-9, R.R. at 102a-104a.) Claimant testified that 

the lid of the glue machine that she lifted in the course of her regular job duties and 

the weights that she placed on glued product in her work ranged from 15 to 30 

pounds. (Claimant Ex. 1, Claimant Dep. at 9-10, 14, R.R. at 9a-10a, 14a.) Claimant 

testified that approximately a year before she stopped working for Employer, she 

told Mr. Karasik that she had a hernia as a result of lifting these objects in her work 

and that she could not lift heavy weights, and that Mr. Karasik modified her duties

by lifting these objects for her. (Id. at 27-29, 40-41, 48-49, R.R. at 27a-29a, 40a41a, 48a-49a; H.T. at 14, R.R. at 109a.) She testified that no accident or specific 

incident occurred at work that injured her or caused any of her conditions or 

symptoms to worsen, but that the hand, neck and back problems and the hernia 

became worse over time, and that since April 2015, she has been unable to work. 

(Claimant Ex. 1, Claimant Dep. at 23-24, 29-30, 34, 43-44, R.R. at 23a-24a, 29a30a, 34a, 43a-44a; H.T. at 12-13, 15, R.R. at 107a-108a, 110a.) Claimant testified 

that when she stopped work in April 2015, she told Mr. Karasik that she could not 
4

work because of her hernia and also told him that she had a problem with her hand. 

(Claimant Ex. 1, Claimant Dep. at 30-31, 37-39, R.R. at 30a-31a, 37a-39a.)

Mr. Karasik testified that between 2011 and April 2015, Claimant was 

absent from work for periods of 4 months, 15 months, 7 months and 2 months, and 

that she called in during those absences reporting that she could not come to work 

because of stomach and gastrointestinal problems. (Employer Ex. 2, Karasik Dep. 

at 13, 27-37 & Karasik Dep. Ex. 1 at 7-8, R.R. at 70a, 73a-76a, 93a-94a.) Mr. 

Karasik testified that Claimant told him in November 2013, when she returned to 

work after a 15-month absence, that she had a hernia and that she could not lift heavy 

objects. (Employer Ex. 2, Karasik Dep. at 15-16, 18-19, 32, 39-40, R.R. at 70a-71a, 

75a-77a.) Mr. Karasik also referred to this condition as “back problems.” (Id. at 

18-19, 32-33, 39-41 & Karasik Dep. Ex. 1 at 7, R.R. at 71a, 75a-77a, 93a.) Mr. 

Karasik testified that he accommodated Claimant’s restriction by giving Claimant a 

1-pound weight to set on stacks of glued product instead of the 61⁄2-pound weight

normally used and by lifting heavier items for her, such as 15-pound weights used 

for some product stacks and the lid of the glue machine, which weighed 9 pounds. 

(Employer Ex. 2, Karasik Dep. at 7-8, 11, 16, 24-25, 40-43, R.R. at 68a-69a, 71a, 

73a, 77a.) Mr. Karasik testified that Claimant did not tell him that the hernia or back 

problems were caused by her work or report the hernia or back problems as a reason 

that she could not come to work. (Id. at 16, 19, 28-29, 34-35, 39, R.R. at 71a, 74a76a.) He testified that Claimant never told him that she was having any problems 

with her hands or neck and that she never appeared to have difficulty with her hands 

at work. (Id. at 17-19, 38, R.R. at 71a, 76a.) Mr. Karasik testified that when 

Claimant stopped working in April 2015, she may have called in a few times saying 

that she was sick, but that she did not say that her hernia had worsened or that she 
5

had been hurt at work, and that he first learned that Claimant asserted that her injuries 

were connected to her work when he received the claim petition in October 2015. 

(Id. at 14-15, 19-20, 36-37, 44-45 & Karasik Dep. Ex. 1 at 8, R.R. at 70a-72a, 76a, 

78a, 94a.) 

Claimant’s treating physician, Dr. Bolno, testified that Claimant suffers 

from a hernia, carpal tunnel syndrome and trigger fingers, lumbar radiculopathy, and 

cervical radiculopathy, and that she is unable to work as a result of these conditions. 

Dr. Bolno opined that the hernia and hand conditions were caused by Claimant’s 

work for Employer and that her lumbar and cervical conditions were aggravated by 

her work. Dr. Bolno further testified that he told Claimant when he first treated her 

for the hernia that the hernia was work related and was caused by the lifting of 25 to 

50 pound weights in her work. (Claimant Ex. 2, Bolno Dep. at 21, Supplemental 

R.R. at 164a.) Employer’s expert, Dr. Spellman, opined that Claimant does not suffer 

from lumbar or cervical radiculopathy or any significant lumbar or cervical 

abnormality. Dr. Spellman further opined that he found no clinical evidence of 

carpal tunnel syndrome in his examination of Claimant, but that she does suffer from 

trigger fingers in her right hand. Dr. Spellman opined that trigger fingers are usually 

not caused by a specific activity, but could not rule out the possibility that the trigger 

fingers might be work related, and testified that trigger fingers are readily curable 

with treatment. 

On January 31, 2017, the WCJ issued a decision denying Claimant’s 

claim petition on the ground that it was barred because Claimant did not give notice 

of her work injuries within 120 days as required by Section 311 of the Act, 77 P.S. 

§ 631. (WCJ Decision F.F. ¶8, Conclusions of Law ¶¶3-4.) The WCJ found 

credible the testimony of Claimant and Dr. Bolno that Claimant was told and 
6

believed that her medical problems were caused by her work and found that Claimant 

knew by her last day of work in April 2015 that her medical problems might be 

caused by her work duties. (Id. F.F. ¶¶5, 7-8.) The WCJ, however, specifically 

rejected as not credible Claimant’s testimony that she reported to Employer that her 

medical problems were work related. (Id. F.F. ¶5.) The WCJ found the testimony 

of Mr. Karasik credible in its entirety, and found that Claimant did not give 

Employer any notice that she had suffered any work- injury until the claim petition 

was filed on October 19, 2015. (Id. F.F. ¶¶6, 8.) The WCJ did not make any 

credibility findings with respect to Dr. Bolno’s opinion testimony or Dr. Spellman’s 

testimony because no determination of whether Claimant’s medical conditions were

work related was necessary in light of his findings and conclusions on the issue of 

notice. (Id. F.F. ¶7.) Claimant appealed, and on October 17, 2017, the Board 

affirmed. This appeal followed.

2

Section 311 of the Act provides that unless the employer has actual 

knowledge of the occurrence of the work-related injury, the claimant must provide 

notice to the employer within 120 days of either the date of the injury or, if the 

claimant lacks knowledge of the nature the injury or its cause, the date by which the 

claimant knew or should have known of the injury and its possible relationship to 

her employment. 77 P.S. § 631. Section 312 of the Act requires that this notice 

“inform the employer that a certain employe received an injury, described in 

ordinary language, in the course of his employment on or about a specified time, at 

or near a place specified.” 77 P.S. § 632. If the claimant fails to provide the notice 

 

2 Our review is limited to determining whether an error of law was committed, whether the WCJ’s 

necessary findings of fact are supported by substantial evidence or whether constitutional rights or 

Board procedures were violated. Penske Logistics v. Workers’ Compensation Appeal Board 

(Troxel), 132 A.3d 1029, 1034 n.5 (Pa. Cmwlth. 2015).
7

required by Sections 311 and 312 of the Act, she is barred from receiving 

compensation. 77 P.S. § 631 (“unless such notice be given within one hundred and 

twenty days ..., no compensation shall be allowed”); Gentex Corp. v. Workers’ 

Compensation Appeal Board (Morack), 23 A.3d 528, 534 (Pa. 2011); Penske 

Logistics v. Workers’ Compensation Appeal Board (Troxel), 132 A.3d 1029, 1035 

(Pa. Cmwlth. 2015). The claimant bears the burden of showing adequate notice was 

given to the employer within 120 days. Gentex Corp., 23 A.3d at 534; Penske 

Logistics, 132 A.3d at 1037; Kocher’s IGA v. Workers’ Compensation Appeal Board

(Dietrich), 729 A.2d 145, 147 (Pa. Cmwlth. 1999). Whether the required notice was 

given is a fact-intensive inquiry requiring deference to the WCJ’s determinations as 

fact-finder. Gentex Corp., 23 A.3d at 534 & n.10.

Where, as here, the injury is claimed to have resulted from the

repetitive, cumulative effects of the claimant’s work, the date of injury is the last day 

that the claimant worked for the employer. City of Philadelphia v. Workers’ 

Compensation Appeal Board (Williams), 851 A.2d 838, 847-49 (Pa. 2004) (120-day 

notice period for work-related carpal tunnel syndrome ran from last day of 

employment). Although Section 311 delays the 120-day notice period where the 

claimant is unaware that her injury could be work related,3that discovery rule is 

inapplicable in this case because Claimant’s and Dr. Bolno’s testimony, found 

credible by the WCJ, established that Claimant had been told by her doctor and 

believed that her conditions were caused by her work for Employer before she 

stopped work in April 2015. Claimant was therefore required to show that she gave 

Employer sufficient notice of her work-related injury no later than August 22, 2015, 

 

3

77 P.S. § 631 (“in cases ... in which the nature of the injury or its relationship to the employment 

is not known to the employe, the time for giving notice shall not begin to run until the employe 

knows, or by the exercise of reasonable diligence should know, of the existence of the injury and 

its possible relationship to his employment”). 
8

120 days after the last day that she worked for Employer. Claimant’s claim petition 

was not filed until October 19, 2015, beyond that 120-day period. 

Claimant argues that she proved that she gave Employer the notice 

required by Sections 311 and 312 at or before the time that she stopped working. 

We do not agree. Claimant testified that she told Mr. Karasik a year before she 

stopped working that her hernia was caused by her work and that she told Mr.

Karasik in April 2015 that she could not work because of her hernia and her hand. 

The WCJ, however, found that this testimony was not credible. 

Determination of the credibility of witnesses is the prerogative of the 

WCJ, not the role of the Board or this Court. Furnari v. Workers’ Compensation 

Appeal Board (Temple Inland), 90 A.3d 53, 59-60, 70 (Pa. Cmwlth. 2014); Stalworth

v. Workers’ Compensation Appeal Board (County of Delaware), 815 A.2d 23, 29 

(Pa. Cmwlth. 2002). The WCJ has exclusive province over questions of credibility 

and evidentiary weight, and may accept or reject the testimony of any witness in 

whole or in part. Furnari, 90 A.3d at 59, 70; Kocher’s IGA, 729 A.2d at 147. 

[N]either the Board nor the Court may reweigh the WCJ’s 

credibility determinations. ... Unless made arbitrarily or 

capriciously, a WCJ’s credibility determinations will be upheld 

on appeal. 

Furnari, 90 A.3d at 70. 

The WCJ’s credibility determinations here were neither arbitrary nor 

capricious. Where a witness testifies in person, the WCJ may properly base his 

credibility determinations upon the demeanor of the witness and need have no 

further basis for rejecting the witness’s testimony. Daniels v. Workers’ 

Compensation Appeal Board (Tristate Transport), 828 A.2d 1043, 1052-53 (Pa.

2003); Amandeo v. Workers’ Compensation Appeal Board (Conagra Foods), 37
9

A.3d 72, 77 (Pa. Cmwlth. 2012). The WCJ had the opportunity to observe the 

demeanor of Claimant, and he based his rejection of her testimony on her demeanor. 

(WCJ Decision F.F. ¶5.) 

The evidence found credible by the WCJ showed only that Claimant 

told Employer that she had a hernia and that she could not lift weights in her work 

as a result of that condition. This is not sufficient notice under Sections 311 and 312 

of the Act. Section 312 requires that the claimant give the employer notice not 

merely of an injury or medical condition, but that the injury or condition was “in the 

course of his employment.” 77 P.S. § 632. This requirement is satisfied where the 

claimant shows, by testimony found credible by the WCJ, that she told the employer 

that she experienced a physical problem at work that affects her ability to do her job 

and that the condition might be work related or was worsened by her work. Gentex 

Corp., 23 A.3d at 530, 537-38 (adequate notice of work-related injury was shown 

where WCJ found credible claimant’s testimony that she notified employer that she 

suffered pain in her hands at work that prevented her from doing her job and left 

telephone messages with employer that her problems were work related); Gahring 

v. Workers’ Compensation Appeal Board (R & R Builders), 128 A.3d 375, 378, 382 

(Pa. Cmwlth. 2015) (testimony found credible by WCJ that claimant told supervisor 

that additional work hours were making his back pain worse was sufficient to prove 

notice); Morris v. Workers’ Compensation Appeal Board (Ball Corp.), (Pa. Cmwlth.,

No. 1172 C.D. 2014, filed June 11, 2015), slip op. at 10-13, 2015 WL 5440508 at 

*5-*6 (notice was sufficient where claimant testified that he told employer’s human 

resources manager that he had problems with his back and legs because of the 

number of hours he had been working, and that testimony was found credible by the 
10

WCJ).

4

 Merely informing the employer of an injury or medical problem without 

any assertion that it may be work related or any assertion that it may have been 

caused or worsened by the claimant’s work duties, however, does not constitute 

sufficient notice. Gribble v. Workers’ Compensation Appeal Board (Cambria 

County Association for the Blind), 692 A.2d 1160, 1162-63 (Pa. Cmwlth. 1997); City 

of Erie v. Workmen’s Compensation Appeal Board (Shannon), 607 A.2d 327, 331 

(Pa. Cmwlth. 1992) (en banc), aff’d without op., 631 A.2d 595 (Pa. 1993);

Westerman v. Workers’ Compensation Appeal Board (K-Mart Corp.), (Pa. Cmwlth.,

No. 2216 C.D. 2013, filed March 3, 2015), slip op. at 6-7, 2015 WL 5332110 at *4

(claimant’s notifications to employer that he had a hernia and stomach pain were 

insufficient to satisfy Section 311 notice requirement). 

Here, the WCJ found that Claimant never told Employer that she had 

experienced pain or difficulty doing her job, never told Employer that the hernia 

arose from her work, and never told Employer that she stopped work because of her 

hernia or because of any pain or event related to her work. (WCJ Decision F.F. ¶¶3c3e, 5-6.) Because Claimant reported the hernia at a time when she had not been 

working for Employer for over a year, the fact that the hernia impacted Claimant’s 

future ability to perform her job duties did not give Employer reason to believe that 

it was caused by anything in her work, as opposed to an unknown event during her 

lengthy absence. While notice that the hernia had subsequently worsened or caused 

her to stop working might give notice of a possible work injury, given the work 

restrictions for the hernia, the WCJ found that Claimant did not tell Employer that 

 

4 Because Morris and Westerman v. Workers’ Compensation Appeal Board (K-Mart Corp.), (Pa. 

Cmwlth., No. 2216 C.D. 2013, filed March 3, 2015), 2015 WL 5332110, also cited herein, are

unreported decisions, they are not binding precedent, but may be considered by the Court for their

persuasive value. 210 Pa. Code § 69.414(a). 
11

her hernia had worsened or that she could not work because of the hernia. (WCJ 

Decision F.F. ¶¶3c-3e, 5-6.) Claimant therefore did not show that she gave 

Employer any notice of a work-related injury until she filed the claim petition, more 

than 120 days after her last day of work for Employer.

5

Given the WCJ’s credibility determinations, Claimant did not meet her

burden of proof that she gave timely notice of her work injury and denial of her claim 

petition was required. Accordingly, we affirm the Board’s order. 

____________________________________

JAMES GARDNER COLINS, Senior Judge

Judge Fizzano Cannon did not participate in the decision in this case.

 

5 Contrary to Claimant’s contentions, State Workmen’s Insurance Fund v. Workmen’s 

Compensation Appeal Board (Hoover), 680 A.2d 40 (Pa. Cmwlth. 1996), and Saunders House v. 

Workmen’s Compensation Appeal Board (Russell), 628 A.2d 488 (Pa. Cmwlth. 1993), do not 

support a conclusion that Employer had notice of a work-related injury on a theory of constructive 

notice. In Hoover and Saunders House, this Court held that the claimant had constructive notice 

of information that was in fact provided to her attorney or in letters that were sent to her correct 

address, not that the claimant had constructive notice of a matter on the basis of knowledge of a 

different fact. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Barbara Magro, :

:

Petitioner :

:

v. : No. 1681 C.D. 2017

:

Workers’ Compensation Appeal :

Board (Polar LLC), :

:

Respondent :

O R D E R

AND NOW, this 2

nd day of May, 2018, the order of the Workers’ 

Compensation Appeal Board in the above matter is AFFIRMED. 

____________________________________

JAMES GARDNER COLINS, Senior Judge