IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Anthony J. Harris, :

Petitioner :

:

v. : No. 939 C.D. 2022

:

County of Bucks (Workers’ :

Compensation Appeal Board), :

Respondent : Submitted: April 21, 2023

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE CEISLER FILED: August 17, 2023

Anthony J. Harris (Claimant) petitions this Court for review of the August 4, 

2022 order of the Workers’ Compensation Appeal Board (Board), affirming the 

decision of a workers’ compensation judge (WCJ) that terminated Claimant’s 

workers’ compensation benefits on the basis that he had fully recovered from a work 

injury sustained on May 30, 2018. The WCJ also denied Claimant’s review and 

modification petitions after concluding that Claimant failed to provide County of 

Bucks (Employer) timely notice that he sustained a new work injury in March 2020 

and, therefore, Claimant failed to meet his burden of proving he sustained a March 

2020 work injury. The issue before this Court is whether the WCJ erred in 

concluding that Claimant failed to provide Employer notice of the alleged March 

2020 work injury, as required by Section 311 of the Workers’ Compensation Act 

(Act).

1

 After review, we affirm.

1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 631.
2

I. Background

Claimant suffered a lower back strain on May 30, 2018, after lifting a patient

from a seated position (2018 Injury) while in the course and scope of his employment 

as a restorative aide for a long-term care nursing home. Certified Record (C.R.), 

Item No. 36. Employer began paying Claimant total disability benefits pursuant to 

a Notice of Temporary Compensation Payable issued on June 20, 2018, which 

described the work injury as lower back inflammation. C.R., Item No. 33. Employer 

subsequently issued a medical-only Notice of Compensation Payable (NCP) on 

August 27, 2018, as Claimant had returned to his preinjury position with no further 

loss of wages. C.R., Item No. 34. After Claimant’s lower back symptoms recurred 

in March 2020, Claimant’s total disability benefits were reinstated, effective May 

31, 2020, pursuant to an amended NCP issued on September 25, 2020, which 

described the 2018 Injury as a lower back strain or tear. C.R., Item No. 35. 

Following a June 19, 2020 independent medical examination (IME) conducted by 

Amir Fayyazi, M.D., who opined that Claimant had fully recovered from the 2018 

Injury, Employer filed petitions to terminate Claimant’s total disability benefits. 

C.R., Item Nos. 2-3. 

On November 6, 2020, Claimant filed review and modification petitions, 

alleging a March 2020 work-related aggravation of the 2018 Injury, and seeking an 

amendment to the description of his accepted work injury to include a disc herniation 

at L3-4, with radiculopathy and stenosis. C.R., Item Nos. 6-7. Claimant also alleged 

that he sustained a new work injury in March 2020 (2020 Injury), following the 

occurrence of three “events at work” while Claimant lifted patients. Id. Employer 

denied the allegations and argued that Claimant failed to provide proper notice of 

the alleged 2020 Injury. C.R., Item Nos. 9-10. Employer also filed a petition to 
3

suspend Claimant’s workers’ compensation benefits, as Employer gave Claimant an 

offer of work, to which Claimant failed to respond in good faith. Id., Item No. 12.

On December 11, 2020, Employer issued a Notice of Compensation Denial (NCD), 

denying liability for the alleged 2020 Injury. C.R., Item No. 38.

A. Employer’s Evidence2

In support of its petitions, Employer presented the deposition testimony of 

Amy Fiero, who works in Employer’s Human Relations (HR) department and 

oversees all workers’ compensation claims. Ms. Fiero testified that she is very 

familiar with Claimant, as he filed several workers’ compensation claims during the 

time he worked for Employer.3 These claims included the alleged 2020 Injury, the 

2018 Injury, a January 2017 work injury to his right hip and lower back, and a 

January 2015 work injury to his lower back.

Ms. Fiero reviewed Claimant’s HR file, which indicated that Claimant last 

worked on March 6, 2020. He was not scheduled to work March 7-8, 2020. 

Thereafter, Claimant used vacation leave on March 9, 2020, and sick leave on March 

10, 2020. On March 19, 2020, Ms. Fiero emailed Claimant, as she received a note 

from his treating physician, Simon Galapo, M.D., requesting that Claimant be 

excused from work from March 10, 2020, through March 30, 2020. C.R., Item No. 

28, Fiero Dep., 4/20/21, Ex. D-2. Ms. Fiero asked if Claimant was out of work for 

“a work[-]related incident” and, “[i]f so,” the date on which the incident occurred. 

2 Employer submitted the deposition testimony of Andy Dida, a nurse who worked 

occasionally with Claimant. Mr. Dida’s testimony did not factor into the WCJ’s decision, and, 

therefore, we will not summarize it herein.

3 Claimant also filed claims for a facial contusion in August 2011, a twisted ankle in 

February 2013, a neck injury in July 2014, and a rib injury in December 2016. Claimant was out 

of work for 76 days following the July 2014 work injury.
4

Id. Claimant advised that his “condition” stemmed from the 2018 Injury, and that 

he was using family medical leave. Id. Ms. Fiero advised Claimant that Employer 

‘sworkers’ compensation administrator, PMA, would review Claimant’s absence “to 

determine if [he] was covered under workers’ compensation.” Id. Ms. Fiero 

received a second note from Dr. Galapo dated March 30, 2020, which took Claimant 

out of work for “an acute exacerbation of his chronic condition” until his next 

evaluation in “early May.” Id. Neither of Dr. Galapo’s notes suggested that 

Claimant sustained a new work injury in March 2020. 

Ms. Fiero noted that, except for the alleged 2020 Injury, Claimant’s workers’ 

compensation claims were initiated after Claimant filed the required documentation. 

Ms. Fiero did not receive notice of the alleged 2020 Injury until Claimant filed his 

review and modification petitions. Claimant never reported any work incidents that 

occurred in 2020 or a written report documenting that he sustained a new work 

injury. In the absence of a reported work injury or incident, Ms. Fiero would not 

know that Claimant’s lower back symptoms were related to a new incident or injury. 

Furthermore, Claimant stated in the March 19, 2020 email that his symptoms related 

to the 2018 Injury. Ms. Fiero denied that Claimant ever advised her he was injured 

at work while lifting a patient. 

On November 6, 2020, Ms. Fiero emailed Claimant to notify him that 

Employer received an affidavit of full recovery from Dr. Fayyazi, who opined that 

Claimant had fully recovered from the 2018 Injury. Ms. Fiero advised Claimant that 

work was available, and that he should report to work on November 9, 2020. 

Although Ms. Fiero had confirmation that Claimant received the November 6, 2020 

email, Claimant did not report to work. 
5

Employer also submitted the April 20, 2021 deposition testimony of Mary 

Haraschak, Employer’s director of the restorative nursing program. C.R., Item No. 

30, Haraschak Dep., 4/20/21, at 5. Ms. Haraschak is familiar with Claimant, as he 

reported to her every morning, and she checked on him once or twice each day. 

Claimant did not complain of lower back pain in early 2020. Ms. Haraschak did not 

observe Claimant having any difficulty performing his job duties, and he never 

requested any changes in his job duties. Claimant never reported to Ms. Haraschak 

that a work injury or incident occurred between January and March 2020. 

Finally, Employer submitted the deposition testimony of Dr. Fayyazi, an 

orthopedic surgeon who evaluated Claimant at a June 19, 2020 IME. As part of his 

evaluation, Dr. Fayyazi reviewed Claimant’s medical records and diagnostic studies, 

including those predating the 2018 Injury. During the IME, Claimant related that he 

experienced back and leg pain, which he rated a 7 out of 10, and he reported 

difficulty with lifting, walking long distances, and sitting for long periods. Claimant 

advised that he injured his lumbar spine at work in 2018 while moving a patient. 

Claimant also injured his back at work in January 2017 after slipping on a wet floor. 

Claimant did not mention any work incidents that occurred in 2020 or the alleged

2020 Injury. Although Claimant denied any prior medical problems, one of his 

medical records referenced a 2014 motor vehicle accident (MVA). Claimant was 

“very evasive” when questioned about the 2014 MVA, but he did acknowledge 

sustaining injuries in the accident. C.R., Item No. 32, Fayyazi Dep., 2/22/21, at 14. 

Beyond the January 2017 work injury and 2018 Injury, Claimant “could not 

remember” if he had lost time at work due to injury. Id. at 15. Claimant’s medical 

records reflected that, prior to working for Employer, he sustained a work injury to 

his lower back in 1999, he was involved in MVAs in 2000 and 2012, and he injured 
6

his back at home on February 7, 2018; however, Dr. Galapo’s records did not 

reference these incidents, and Claimant did not provide this information to Dr. 

Fayyazi during the IME. 

Dr. Fayyazi noted that Claimant walked with his knees bent during his 

physical examination but was able to extend them fully when asked. Claimant 

demonstrated “minimal effort” when asked to walk on his toes. Id. at 17. Claimant 

was unsteady when performing a single leg stand, but had no instability or difficulty 

while walking in place, which “is the same exact maneuver[.]” Id. at 18. In general, 

Dr. Fayyazi felt that Claimant’s behavior during the examination was “highly 

manipulated” and “not consistent with lumbar conditions.” Id. Dr. Fayyazi also felt 

that Claimant manipulated the cervical examination, as Claimant shook and 

appeared to be in pain when bending his neck forward but denied feeling any 

discomfort in his neck. Further, Claimant did not express pain in his neck with 

palpation, and Dr. Fayyazi did not observe any muscle spasm. Claimant’s forward 

extension in his lumbar spine was “inconsistent” and “actually the opposite” of what 

Dr. Fayyazi would expect to see in someone with back pain. Claimant made no 

attempt at backward extension when asked and complained of discomfort when Dr. 

Fayyazi palpated the middle of his back; however, Dr. Fayyazi did not see evidence 

of muscle spasm. Claimant demonstrated full range of motion in his upper 

extremities, although his initial “effort in moving was suboptimal.” Id. at 21. 

Claimant advised that he had a bad hip, but would not clarify which hip was affected, 

and he would not allow Dr. Fayyazi to examine his lower extremities. Additionally, 

Claimant exhibited weakness in his lower extremities that was inconsistent with his 

ability to stand and walk on his toes and heels. Claimant’s straight leg test was 

negative, which Dr. Fayyazi would not have expected with an acute extruded disc 
7

herniation. Dr. Fayyazi noted a “slight loss” of curvature in Claimant’s lumbar 

spine, but Dr. Fayyazi was otherwise unable to explain Claimant’s behavior during 

the physical examination, and the majority of Dr. Fayyazi’s findings were 

“consistent with [an] individual trying to manipulate” the examination. Id. at 20, 24. 

Dr. Fayyazi reviewed a January 30, 2017 magnetic resonance image (MRI) 

study of Claimant’s lumbar spine, which documented mild, multi-level disc bulges 

and facet arthropathy, but there was no evidence of disc herniation or stenosis. A 

subsequent lumbar spine MRI from June 8, 2018, contained the same findings and 

noted the presence of degenerative changes at multiple levels. It did not indicate the 

presence of an acute injury. Overall, Dr. Fayyazi found that the condition of 

Claimant’s lower back in 2018 consisted of degenerative changes at multiple levels 

and osteoarthritis “consistent with an aging spine[.]” Id. at 26. An August 3, 2018 

IME conducted by David Vergari, M.D., prior to Claimant’s return to full duty that 

month, indicated that Claimant “was feeling great” and that he would return to work 

after his next epidural injection. Id. at 31. 

A May 12, 2020 MRI, however, documented a “significant change” in the 

condition of Claimant’s lumbar spine, as it revealed “severe spinal stenosis” and a 

left-sided disc herniation at L3-4. Id. at 27. Claimant’s medical records from this

period do not relate Claimant’s lower back condition to a 2020 work incident, with 

the exception of a March 30, 2020 note from Dr. Galapo indicating that Claimant 

was injured while lifting a patient, which “resulted in the [Claimant’s back] pain 

getting significantly worse until the point of incapacitation.” Id. at 13. Dr. Galapo’s 

note does not indicate a date or time frame for this incident. 

Prior to testifying, Dr. Fayyazi reviewed Claimant’s testimony, and he 

understood that Claimant related his current condition to three work incidents that 
8

occurred in early 2020. Dr. Fayyazi noted that he asked Claimant about new injuries 

or accidents during the June 19, 2020 IME, and Claimant did not mention the alleged 

work incidents. Claimant’s medical records, including those of the surgeon who 

recommended surgery to treat Claimant’s L3-4 disc herniation, likewise did not

contain any report of a 2020 work incident. Thus, Dr. Fayyazi did not believe a 

work injury caused Claimant’s L3-4 disc herniation or stenosis. 

Ultimately, Dr. Fayyazi opined that Claimant had fully recovered from the 

lower back strain Claimant sustained from the 2018 Injury, as he returned to work a 

few months later and continued to work his full-duty position until March 2020. 

Further, Claimant did not require additional treatment or work restrictions with 

respect to the 2018 Injury, as Claimant’s imaging studies did not contain findings 

consistent with a lower back strain. Dr. Fayyazi did not believe that Claimant’s 

current condition represented an aggravation of the 2018 Injury. Rather, Claimant’s 

L3-4 disc herniation and stenosis represented a “new finding” that was unrelated to 

the 2018 Injury, and any positive findings in the June 19, 2020 IME solely related 

to Claimant’s L3-4 disc herniation and spinal stenosis and to age-related 

degeneration. Id. at 38. Finally, Dr. Fayyazi did not believe that Claimant’s L3-4 

disc herniation and stenosis would have occurred over time. He expected that it was 

the result of a single incident that would have required treatment “within hours or a 

day[.]” Id. at 45. 

B. Claimant’s Evidence

In support of his review and modification petitions, Claimant testified by 

deposition on February 5, 2021, and at a hearing before the WCJ on May 12, 2021. 

Claimant’s job duties as a restorative aide included helping patients with mobility 

and exercise. On May 30, 2018, Claimant “pulled something” in his lower back
9

after lifting and holding a patient who lost his balance. C.R., Item No. 31, Claimant 

Dep., 2/5/21, at 8. Claimant was out of work for approximately three months and 

returned to work, without restrictions, although he continued to have lower back pain 

related to the 2018 Injury. Claimant treated his pain symptoms with medication and 

epidural injections, which kept Claimant’s pain level between three and six. 

In the early part of 2020, while lifting a patient with another employee, 

Claimant felt “something pop in” his lower back on the right side. Id. at 10.

Claimant could not pinpoint the exact date this occurred, only that it was “in the 

beginning of 2020.” Id. at 35. He did not report the incident to Employer and 

continued to work his full-duty position. Claimant experienced a second incident 

with this patient, which he also did not report to Employer.4 A third incident 

occurred in February 2020 when Claimant attempted to pull a different patient to a 

standing position and “something pulled in [his] back” that hurt “really bad.” Id. at 

12, 39. Claimant stated that he completed his shift that day and did not return to 

work; however, he later indicated that he stopped working on March 10, 2020. 

Ultimately, Claimant agreed that he last worked on March 6, 2020, and he “went to 

the doctor” on March 10, 2020. Id. at 53. On March 19, 2020, Claimant emailed 

Ms. Fiero that he could not work due to a work injury sustained while lifting a 

patient. He forwarded Ms. Fiero a note from Dr. Galapo, who took Claimant out of 

work, as of March 30, 2020. Claimant could not remember if he ever spoke with 

Ms. Fiero on the phone. 

Claimant acknowledged that he had work-related injuries to his lower back in 

1999, prior to working for Employer, and in January 2017. He stated that he did not 

4 Claimant did not provide any details of this second incident, beyond its occurrence.
10

lose time at work after the January 2017 work injury.5 Claimant did not recall having 

an x-ray of his lumbar spine in 2015, or whether he suffered any injury in 2015 that 

would warrant an x-ray of his lumbar spine. Claimant did not initially recall having 

a lumbar x-ray in February 2018, but later remembered seeking treatment for his 

lower back after slipping on wet pavement at home. Claimant was also advised by 

either Dr. Galapo or Dr. Fayyazi, or “maybe both of them[,]” that he had arthritis in 

his lower back. Id. at 26-27. Although Claimant attributes numbness in his right leg 

to the alleged 2020 work incidents, Claimant agreed that he experienced numbness 

and tingling in his right leg after the 1999 and 2017 work injuries and the 2018 

Injury. Id. at 44. Claimant also experienced right leg symptoms caused by his right 

hip, which was replaced in 2016. 

Claimant conceded that he was familiar with the process of filing a workers’ 

compensation claim. Because the alleged 2020 work incidents occurred “while 

[Claimant] was already on workers’ comp[ensation],” he did not believe he had to 

“report [them] again.” Id. at 53. Claimant did not believe he could return to his 

preinjury position with Employer due to the severe pain in his lower back, which is 

exacerbated by standing and lifting. His current lower back pain symptoms are much 

worse than the pain caused by the 2018 Injury. C.R., Item No. 23, Notes of 

Testimony (N.T.), 5/12/21, at 21. Claimant underwent back surgery on February 24, 

2021, which “helped a little.” Id. at 23. He was prescribed physical therapy, which 

he had not yet attended. Claimant does not believe he can perform sedentary work, 

and he has not made an effort to obtain sedentary work. Claimant confirmed that he 

5 Ms. Fiero’s testimony reflects that Claimant was out of work for 218 days following the 

2017 work injury.
11

did not notify Ms. Fiero of a specific lifting incident from 2020 that caused his 

symptoms and that he just indicated that he “had a work-related injury.” Id. at 32. 

Claimant also presented the April 26, 2021 deposition testimony of his 

treating physician, Dr. Galapo, who first treated Claimant on July 25, 2018. At that 

time, Claimant provided a history that he suffered from chronic lower back and right 

leg pain caused by the 2018 Injury. Dr. Galapo understood that Claimant’sjob duties 

required heavy lifting while maneuvering and assisting patients. Dr. Galapo’s 

treatment consisted of pain medication and epidural steroid injections. A June 8, 

2018 MRI revealed “mild to moderate facet arthropathy” in Claimant’s lumbar 

spine, with degenerative disc disease throughout. C.R., Item No. 25, Galapo Dep., 

4/26/21, at 15. At a January 30, 2020 examination, Claimant reported an 

exacerbation of his lower back pain. At that time, Dr. Galapo diagnosed Claimant 

with spondylosis caused by the degeneration in his lumbar spine. Claimant called 

Dr. Galapo on March 19, 2020, and requested a note taking him out of work due to 

increased lower back pain that radiated down his legs. Claimant related his 

symptoms to lifting a patient at work on March 10, 2020. Based on Claimant’s 

reported symptoms, Dr. Galapo took Claimant out of work from March 10, 2020, 

through the date of Claimant’s next examination on March 30, 2020. Following the 

March 30, 2020 examination, Dr. Galapo diagnosed Claimant with “intervertebral 

disc disorder with a radiculopathy of the lumbosacral region.” Id. at 21. He provided 

Claimant a second note excusing him from work through his “next evaluation in 

early May” due to “an acute exacerbation of his chronic condition.” Id. at 22.

A May 12, 2020 MRI revealed a “moderately prominent broad-based central 

disc herniation” at L3-4 that produced “severe central stenosis” and diffuse bulging 

at the disc level, which caused “moderate foraminal stenosis[.]” Id. at 24-25. Based 
12

on these results, Dr. Galapo referred Claimant to another physician, who ultimately 

performed Claimant’s February 24, 2021 surgery. In a May 15, 2020 document 

provided to PMA, Dr. Galapo expressly indicated that Claimant’s current symptoms 

related to the 2018 Injury. 

Dr. Galapo opined that, due to the 2018 Injury, Claimant developed lumbar 

radiculopathy and lumbar facet arthropathy, which in turn caused Claimant’s L3-4 

disc herniation and stenosis. Dr. Galapo considered these diagnoses an aggravation 

of his prior lumbar condition, which caused the 2020 Injury. Id. at 28. He did not 

believe Claimant could return to his preinjury job. Having treated Claimant for more 

than two years and having observed that Claimant continued to work despite his 

injuries, Dr. Galapo took issue with Dr. Fayyazi’s suggestion that Claimant was 

evasive or manipulated the June 19, 2020 IME. Dr. Galapo also disagreed that 

Claimant had fully recovered from the 2018 Injury.

During cross-examination, Dr. Galapo acknowledged that he did not review 

Claimant’s medical records prior to May 30, 2018, although he understood that 

Claimant had a history of lower back pain, and that Claimant sustained a work injury 

to his lower back in January 2017. Dr. Galapo agreed that during the January 30, 

2020 examination, and a subsequent examination on February 24, 2020, Claimant

primarily complained of lower back pain and he did not have any radicular 

symptoms. Dr. Galapo was not aware of the 1999 work injury, or that Claimant 

injured his back after falling at home on February 7, 2018. 

C. WCJ Decision

In a decision circulated on December 1, 2021, the WCJ credited Claimant’s 

testimony that he suffered from low back pain for several years, and that he 
13

underwent diagnostic studies for these symptoms prior to May 30, 2018. C.R., Item 

No. 14, Finding of Fact (F.F.) No. 15. Claimant also credibly testified that he 

returned to his preinjury position three months after sustaining the 2018 Injury, and 

that he was not capable of returning to this position following his February 24, 2021 

back surgery. Id. The WCJ also credited Claimant’s testimony that he did not tell 

Dr. Galapo about “a specific injury” sustained in March 2020, and that he did not 

notify Ms. Fiero of the alleged 2020 Injury. Id. The WCJ discredited Claimant’s 

testimony that he sustained the alleged 2020 Injury, as his testimony conflicted with 

the alleged mechanism of injury and the date on which it may have occurred. Id. 

Claimant denied any new work incidents or injuries during the June 19, 2020 IME 

with Dr. Fayyazi. Id. Although Claimant was familiar with the reporting 

requirements for a workers’ compensation claim, he failed to report any work injury 

or incident occurring in early 2020. Id. The WCJ also discredited Claimant’s 

testimony that he had not recovered from the 2018 Injury, as Claimant returned to 

his full-duty position on August 27, 2018, until he stopped working in March 2020. 

Id. 

The WCJ credited Ms. Fiero’s testimony that Claimant returned to his 

preinjury position on August 27, 2018, that Claimant did not give notice of a March 

2020 injury, and that Claimant attributed his March 2020 symptoms to the 2018 

Injury. F.F. No. 16. Ms. Fiero also credibly testified that she was not aware of the 

alleged 2020 Injury until Claimant filed his petitions on November 6, 2020, and that 

Claimant was asked to return to his preinjury job and failed to do so. Id. The WCJ 

also credited Ms. Haraschak’s testimony that Claimant never complained of back 

pain to her, that Claimant did not appear to have any issues performing his duties, 
14

and that Claimant did not report a work injury between January and March 2020. 

F.F. No. 18. 

Regarding the medical testimony, the WCJ credited Dr. Fayyazi’s opinion that 

Claimant had fully recovered from the 2018 Injury as of June 19, 2020. F.F. No. 19. 

The WCJ based his opinion on Dr. Fayyazi’s status as a board-certified orthopedic 

surgeon who conducted a physical examination of Claimant and reviewed 

Claimant’s medical records and diagnostic studies that pre- and post-dated the 2018 

Injury, including a June 8, 2018 lumbar MRI that revealed degenerative changes, but 

no disc herniation or evidence of an acute injury. Id. The WCJ credited Dr. 

Fayyazi’s opinion that Claimant did not aggravate the 2018 Injury, as the L3-4 

herniation documented by a May 12, 2020 MRI would have disabled Claimant

“almost immediately[.]” Id. As such, the L3-4 disc herniation was a new injury

unrelated to 2018 Injury. Id.

The WCJ credited Dr. Galapo’s testimony that the L3-4 herniation was a 

recent injury, and that Claimant did not identify a new “lifting incident” in 2020 that 

caused the injury. F.F. No. 20. The WCJ discredited Dr. Galapo’s opinion that 

Claimant’s L3-4 disc herniation and stenosis related to the 2018 Injury, in part 

because Dr. Galapo conceded that he did not review any medical records prior to 

May 30, 2018. Id. Furthermore, Dr. Galapo agreed that Claimant chiefly

complained of low back pain, an arthritic condition, after October 2018. Id. 

Therefore, the WCJ found that Claimant failed to meet his burden of proving 

that he sustained the alleged 2020 Injury, or that he provided timely notice thereof. 

F.F. No. 21. The WCJ granted Employer’s termination petition and dismissed its 

suspension petition as moot. C.R., Item No. 14, WCJ Decision at 15. Claimant’s 
15

review and modification petitions were denied and dismissed. Id. Claimant 

appealed to the Board, which affirmed. This appeal followed.6 

II. Issues

On appeal, Claimant argues that the WCJ erred in concluding that Claimant 

failed to give proper notice of the alleged 2020 Injury.

III. Discussion

Timely notice of a work injury is a prerequisite to receiving workers’ 

compensation benefits, and the claimant bears the burden of showing that proper 

notice was given. East Hempfield Twp. v. Workers’ Comp. Appeal Bd. (Stahl), 189 

A.3d 1114, 1117 (Pa. Cmwlth. 2018). Unless an employer has knowledge of the 

work injury, Section 311 of the Act requires that an employee give notice of a work 

injury within 120 days of its occurrence. 77 P.S. § 631. Where the injury, and its 

connection to the claimant’s employment, is not known, the 120-day period for 

providing notice is tolled “until the [employee] knows, or by the exercise of 

reasonable diligence should know, of the existence of the injury and its possible 

relationship to his employment.” Id. Notice under Section 311 “shall inform the 

employer that a certain [employee] 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.” Section 312 of the Act, 77 P.S. § 632. Although adequate notice 

of a work-related injury only requires a claimant to inform his employer that a workrelated injury occurred at a specific time and place, “the notice only need be 

6 This Court’s review is limited to determining whether the necessary findings of fact were 

supported by substantial evidence, constitutional rights were violated, or errors of law were 

committed. Borough of Heidelberg v. Workers’ Comp. Appeal Bd. (Selva), 928 A.2d 1006, 1009

(Pa. 2007). Where the issue presented involves a question of law, our standard of review is de 

novo and our scope of review is plenary. Id.
16

conveyed in ordinary language, [it] can take into consideration the context and 

setting of the injury, and [notice] may be provided over a period of time or a series

of communications, if the exact nature of the injury and its work-relatedness is not 

immediately known by the claimant.” Gentex Corp. v. Workers’ Comp. Appeal Bd. 

(Morack), 23 A.3d 528, 537 (Pa. 2011). 

Whether a claimant has complied with the notice requirements in Section 311 

is a question of fact to be determined by the WCJ. City of Phila. v. Workers’ Comp. 

Appeal Bd. (Wilson), 767 A.2d 26, 29 (Pa. Cmwlth. 2001). The WCJ has exclusive 

province over questions of credibility and evidentiary weight, and the WCJ may 

accept or reject the testimony of any witness, including a medical witness, in whole 

or in part. A & J Builders, Inc. v. Workers’ Comp. Appeal Bd. (Verdi), 78 A.3d 1233, 

1238 (Pa. Cmwlth. 2013). This Court’s role is not to reweigh the evidence or review 

witness credibility. Sell v. Workers’ Comp. Appeal Bd. (LNP Eng’g), 771 A.2d 

1246, 1251 (Pa. 2001). Whether the record contains evidence to support findings 

other than those made by the WCJ is irrelevant; the critical inquiry is whether the 

record supports the findings actually made, and we must view the evidence in the 

light most favorable to the prevailing party and give it the benefit of all inferences 

reasonably deduced therefrom. A & J Builders, 78 A.3d at 1238-39. 

Claimant argues that, when he stopped working in March 2020, he believed 

the increase in his lower back symptoms solely related to the 2018 Injury. As a 

result, Claimant did not realize he sustained a new work injury until the May 12, 

2020 MRI revealed an L3-4 disc herniation. Claimant suggests that Employer 

received timely notice of the alleged 2020 Injury because it received the May 12, 

2020 MRI report within 120 days of Claimant’s last date of employment. Claimant 

also contends that Employer had timely notice of the alleged 2020 Injury because 
17

Dr. Galapo’s March 30, 2020 note taking Claimant out of work indicated that he 

suffered from “an acute exacerbation of his chronic condition.” Claimant’s Br. at 

15. Claimant suggests that, based on Dr. Galapo’s note, Employer should have 

further investigated whether Claimant sustained a new work injury. Instead, after 

receiving the May 12, 2020 MRI report documenting the L3-4 herniation and 

stenosis, Employer scheduled the IME with Dr. Fayyazi, who opined that the L3-4 

herniation and stenosis were unrelated to the 2018 Injury from which Claimant had 

fully recovered. Thereafter, Employer waited “120 days before filing [a termination 

petition]” and then argued that it did not receive timely notice of the alleged 2020 

Injury. Id. 

Claimant’s argument is entirely unsupported by the record, which reflects that 

Employer did inquire as to whether Claimant’s lower back symptoms related to the 

2018 Injury or whether he sustained a new work injury. The WCJ credited Ms. 

Fiero’s testimony that Employer was first notified of the alleged 2020 Injury when 

Claimant filed his petitions on November 6, 2020.7 Ms. Fiero also credibly testified, 

and Claimant acknowledged, that Claimant was familiar with the process of filing a 

workers’ compensation claim. Despite this knowledge, Claimant admittedly failed 

to notify Employer of any work incident that occurred in early 2020. In one such 

incident, Claimant felt “something pop” in his lower back while lifting a patient. 

C.R., Item No. 31, Claimant Dep. 2/5/21, at 10. In the third incident, Claimant felt

“something pull” in his back while helping a patient stand, causing back pain so 

significant that Claimant could no longer work. Id. at 12. After Claimant stopped 

working in March 2020, Ms. Fiero specifically asked Claimant in a March 19, 2020 

7 The 120-day period would start to run when Claimant knew the disc herniation was workrelated. Assuming Claimant was aware as of the May 12, 2020 MRI, Claimant had to file his 

petitions by September 9, 2020 to be timely.
18

email, if he was out of work for “a work[-]related incident” and, “[i]f so,” the date 

on which the incident occurred. C.R., Item No. 28, Fiero Dep., 4/20/21, Ex. D-2. 

Claimant responded that his symptoms stemmed from the 2018 Injury. He did not 

report the 2020 work incidents, the last of which caused Claimant to stop working 

altogether. Then, on April 6, 2020, PMA contacted Dr. Galapo for information 

regarding the “acute exacerbation of [Claimant’s] chronic condition” and whether 

Claimant’s “current complaints/diagnoses are related to the” 2018 Injury. C.R., Item 

No. 25, Galapo Dep., Ex. D-1. Dr. Galapo replied on May 15, 2020, stating that 

Claimant’s symptoms were an exacerbation of the 2018 Injury. Although Dr. 

Galapo attached a copy of the May 12, 2020 MRI report to his response, Dr. Galapo 

did not discuss either the work incident that allegedly caused Claimant’s symptoms 

to worsen, or the presence of a new injury. Additionally, Claimant did not advise 

Dr. Fayyazi during the June 19, 2020 IME of any work incidents in 2020 that would 

have caused or contributed to his lower back symptoms. 

Notably, the mechanism of injury for the 2018 Injury – lifting a patient from 

a seated position – is nearly identical to the 2020 work incidents Claimant described

in his testimony. It cannot be said, therefore, that Dr. Galapo’s March 30, 2020 

office note attributing Claimant’s symptoms to lifting patients at work, coupled with 

Dr. Galapo’s response to PMA that Claimant’s lower back pain relates to the 2018 

Injury, as well as Claimant’s response to Ms. Fiero, which also related Claimant’s 

symptoms to the 2018 Injury, would serve to notify Employer that Claimant 

sustained a new work-related injury after May 30, 2018. 

Furthermore, by Claimant’s own argument, he knew from the May 12, 2020 

MRI that his lower back condition included an L3-4 disc herniation and stenosis. 

Yet, he still failed to apprise Dr. Fayyazi during the subsequent June 19, 2020 IME 
19

of the 2020 work incidents that allegedly caused that condition. Additionally, as of 

the May 12, 2020 MRI, Claimant knew, or should have known by the exercise of 

reasonable diligence, that his L3-4 disc herniation and stenosis existed and could be 

work related. Thereafter, Claimant had 120 days, or until September 9, 2020, to 

notify Employer of the alleged 2020 Injury. He did not do so, and the WCJ found, 

based on the credible testimony of Ms. Fiero, that Claimant’s November 6, 2020

petitions served as the first notice Employer received regarding the alleged 2020 

Injury. 

Simply put, Claimant had multiple opportunities to advise Employer of any 

work incident that either increased the symptoms in his lower back or caused a new 

work injury, but he failed to do so within the time frame set forth in Section 311 of 

the Act. Accordingly, the WCJ properly concluded that Claimant failed to provide 

timely notice of the alleged 2020 Injury pursuant to Section 311 of the Act, and we 

affirm the Board. 

____________________________

ELLEN CEISLER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Anthony J. Harris, :

Petitioner :

:

v. : No. 939 C.D. 2022

:

County of Bucks (Workers’ :

Compensation Appeal Board), :

Respondent :

O R D E R

AND NOW, this 17th day of August, 2023, the August 4, 2022 order of the 

Workers’ Compensation Appeal Board is hereby AFFIRMED. 

____________________________

ELLEN CEISLER, Judge