IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Deynaria Perez, :

:

Petitioner :

:

v. : No. 779 C.D. 2016

: Submitted: October 14, 2016

Workers’ Compensation Appeal :

Board (GMRI, Inc.), :

:

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: November 21, 2016

Deynaria Perez (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 and penalty 

petitions. For the reasons set forth below, we affirm.

Claimant worked for GMRI, Inc. (Employer) as a food preparation 

worker in its Lancaster, Pennsylvania Red Lobster restaurant for approximately 

fourteen years. Claimant was diagnosed in 2012 as having bilateral carpal tunnel 

syndrome and bilateral de Quervain’s tenosynovitis. (11/3/14 Hearing Transcript 

(H.T.) at 7-9, Reproduced Record (R.R.) at 10a-12a; Claimant Ex. 4 Claimant 

Medical Records, R.R. at 120a-121a.) On February 21, 2013, Claimant had carpal 
2

tunnel release surgery on her right hand and wrist and was off work for several 

weeks for that surgery. (WCJ Decision Finding of Fact (F.F.) ¶¶3e, 18; Claimant 

Ex. 5 Claimant Medical Records, R.R. at 126a; 4/13/15 H.T. at 15-17, R.R. at 65a67a.) On October 1, 2013, Claimant had carpal tunnel release surgery on her left 

hand and wrist and was off work for several weeks for that surgery. (WCJ 

Decision F.F. ¶¶3e, 18; Claimant Ex. 5 Claimant Medical Records, R.R. at 125a;

4/13/15 H.T. at 15-17, R.R. at 65a-67a.) In October 2013, Claimant filed a claim 

for short term disability benefits under Employer’s benefit plan for the time she 

was off for her surgery. (WCJ Decision F.F. ¶¶3d, 6, 18; Claimant Ex. 2 Disability 

Form, R.R. at 115a.) The disability benefits form that Claimant filed stated that 

she was off work for carpal tunnel surgery but did not attribute Claimant’s 

condition or surgery to her work. (Claimant Ex. 2 Disability Form, R.R. at 115a.) 

After her recovery from each of these surgeries, Claimant returned to her regular 

work duties. (WCJ Decision F.F. ¶¶2i, 2j, 3f, 18; 11/3/14 H.T. at 17, 22, R.R. at

20a, 25a; 4/13/15 H.T. at 15-18, R.R. at 65a-68a.) 

In February 2014, Claimant left work for a vacation out of the 

country, but did not return when her approved leave ended because of a family 

emergency. (WCJ Decision F.F. ¶¶2k, 3f, 18; 11/3/14 H.T. at 23-24, R.R. at 26a27a; 4/13/15 H.T. at 18-19, R.R. at 68a-69a.) When Claimant came back in April 

2014, she asked to return to her regular job, but Employer had filled her position as 

a result of her extended absence and did not have a job opening for her. (WCJ 

Decision F.F. ¶¶2l, 3f, 18; 11/3/14 H.T. at 24-25, R.R. at 27a-28a; 4/13/15 H.T. at 

19-21, R.R. at 69a-71a.) Claimant found full-time work with a new employer by 

September 2014 and received unemployment compensation until she started work. 

(11/3/14 H.T. at 25-29, 44-45, R.R. at 28a-32a, 47a-48a.) 
3

On September 18, 2014, Claimant filed a claim petition seeking 

disability benefits under the Workers’ Compensation Act (the Act)1for the period 

beginning February 19, 2014, asserting that she suffered from carpal tunnel 

syndrome and de Quervain’s tenosynovitis caused by her work for Employer and

stating that her date of injury was February 19, 2014, the last day that she worked 

for Employer. Claimant also filed a penalty petition asserting that Employer failed 

to timely issue a Notice of Compensation Payable or Notice of Compensation 

Denial, failed to pay compensation in violation of the Act and failed to promptly 

investigate Claimant’s injury. Employer timely answered both petitions, denying 

that these conditions were work-related and asserting that Claimant had failed to 

give notice of any work-related injury. Employer also issued a Notice of 

Compensation Denial denying compensation on those two grounds. 

The WCJ held two days of evidentiary hearings at which Claimant, 

Claimant’s daughter and Employer’s general manager testified, and also received 

expert reports of a physician retained by Claimant’s counsel who examined 

Claimant and a physician who examined Claimant on behalf of Employer.

2

 

Claimant testified that her job duties with Employer included making bread with 

her hands as much as eight to ten hours a day, cutting lobsters with scissors and 

stirring sauces. (11/3/14 H.T. at 10-11, R.R. at 13a-14a.) According to Claimant, 

her work hours varied and were 30 to 40 hours per week in 2012 and 27 to 35

hours per week in 2013. (Id. at 34-35, R.R. at 37a-38a.) Claimant testified that in 

the summer of 2012, she began having pain in her wrists and hands that was worse 

 

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

2

The parties submitted medical reports rather than depositions because Claimant’s disability 

claim was for a period of 52 weeks or less. (4/13/15 H.T. at 51, R.R. at 101a.) See Section 

422(c) of the Act, added by the Act of June 26, 1919, P.L. 642, as amended, 77 P.S. § 835. 
4

when she was working, that she went to her family doctor and a specialist, and that 

she told one of her managers that “the doctor had told me that I had carpal tunnel 

in both hands due to repetitive work.” (Id. at 7-9, 11, R.R. at 10a-12a, 14a.) 

Claimant also testified that she asked that manager for workers’ compensation 

information when she had the February 2013 surgery and asked the general 

manager for workers’ compensation forms for the October 2013 surgery, and that 

she told both the manager and general manager that she had continuing pain after 

her October 2013 surgery. (Id. at 12, 16, 18-20, 22-23, R.R. at 15a, 19a, 21a-23a, 

25a-26a.) Claimant’s daughter testified that when Claimant asked for time off for

the February 2013 surgery, she and Claimant told Claimant’s manager that 

Claimant’s wrist problem and surgery were caused by Claimant’s food preparation 

work. (4/13/15 H.T. at 37-40, R.R. at 87a-90a.)

Employer’s general manager testified that Claimant’s job duties 

involved the preparation of 60 to 80 different items, that the work that she did 

varied, and that Claimant was not regularly assigned to make bread and only 

performed that work to fill in for the baker when needed. (4/13/15 H.T. at 7-9, 

R.R. at 57a-59a.) Employer’s general manager testified that Claimant never

reported to him that she suffered from a work-related injury or that her surgeries 

were work-related, that Claimant never sought any change in her job duties or 

complained of difficulty doing her job, and that Claimant sought to resume her 

regular job duties when she returned from her non-medical absence in 2014. (Id. at 

11, 17-20, R.R. at 61a, 67a-70a.) He further testified that Employer’s managers 

are required to report to him any work-related injury that an employee reports to 

them, that none of the managers reported that Claimant had notified them of any 

work-related injury and that the only document that Employer had in its files 
5

concerning Claimant’s hand and wrist problems or surgery was the short term 

disability form. (Id. at 11-15, R.R. at 61a-65a; Employer Ex. 1 Claimant Personnel 

File Medical Notes, R.R. at 132a-138a.) Employer introduced in evidence a record

showing that Claimant worked 11.32 to 36.53 hours per week in 2012 and 11.84 to 

44.80 hours per week in 2013, with the majority of weeks in the two-year period 

under 35 hours. (Employer Ex. 2, R.R. at 139a-140a.) 

Claimant’s expert, Dr. Katolik, opined that Claimant suffered from 

right side carpal tunnel syndrome and right side de Quervain’s tenosynovitis. 

(Claimant Ex. 3 Katolik Expert Report, R.R. at 118a.) Dr. Katolik opined that 

Claimant’s de Quervain’s tenosynovitis was caused by her work for Employer, 

based on a history that her job had a high load of repetitive work and that she 

typically worked more than 40 hours per week. (Id., R.R. at 116a, 118a.) Dr. 

Katolik’s report did not set forth any opinion on whether Claimant’s carpal tunnel 

syndrome or surgeries were work-related. (Id., R.R. at 118a-119a.) Employer’s 

expert, Dr. DiBenedetto, opined that Claimant had bilateral carpal tunnel syndrome

from which she had recovered and that she did not have de Quervain’s 

tenosynovitis. (Employer Ex. 3 DiBenedetto Expert Report, R.R. at 143a.) Dr. 

DiBenedetto concluded that Claimant was able to work without restrictions, but 

did not express any opinion on whether her carpal tunnel syndrome was workrelated. (Id.) Although Claimant testified before the WCJ that the termination of 

her employment was unrelated to any medical condition (11/3/14 H.T. at 23-25, 

R.R. at 26a-28a), both experts stated in their reports that Claimant told them that 

she was fired by Employer because of her hand and wrist problems. (Claimant Ex. 

3 Katolik Expert Report, R.R. at 117a; Employer Ex. 3 DiBenedetto Expert Report, 

R.R. at 141a.) 
6

On August 21, 2015, the WCJ issued a decision denying Claimant’s 

claim and penalty petitions. The WCJ found the testimony of Employer’s general

manager credible and found the testimony of Claimant and her daughter not 

credible. (WCJ Decision F.F. ¶¶16-18.) The WCJ specifically rejected Claimant’s 

and her daughter’s testimony that Claimant reported a work injury and found that

Claimant never communicated to Employer that her wrist and hand problems or 

carpal tunnel surgery might be work-related until the Claim Petition was filed on 

September 18, 2014. (Id. F.F. ¶¶16-18, 22.) The WCJ also rejected the opinion of 

Dr. Katolik as not credible and found that Claimant failed to meet her burden of 

proving that her injury was work related. (Id. F.F. ¶¶20, 23, Conclusion of Law 

¶3.) Claimant appealed, and on April 13, 2016, the Board affirmed the WCJ 

Decision on the ground that Claimant did not give notice of a work-related injury 

within 120 days as required by Sections 311 and 312 of the Act, 77 P.S. §§ 631, 

632. This appeal followed.

3

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 and 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. This notice must “inform the employer that a 

certain employe received an injury, described in ordinary language, in the course 

 

3 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

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 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 factfinder. Gentex Corp., 23 A.3d at 534 & n.10, 537; Kocher’s IGA, 729 A.2d at 147.

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-notice period where the 

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

inapplicable in this case because Claimant testified that she believed as early as

2012 and 2013 that her condition was caused by her work for Employer. (11/3/14 

H.T. at 9, 11, 17-18, 22, R.R. at 12a, 14a, 20a-21a, 25a.) Claimant was therefore 

required to show that she gave Employer notice that she had suffered a workrelated injury no later than 120 days after February 19, 2014, the last day that she 
8

worked for Employer. Claimant’s claim and penalty petitions were not filed until 

September 18, 2014, far beyond that 120-day period. 

Claimant argues that she proved that she gave Employer the notice 

required by Sections 311 and 312 before the termination of her employment. We 

do not agree. Claimant and her daughter testified that Claimant reported to 

Employer’s managers in 2012 and 2013 that she had been diagnosed with carpal 

tunnel syndrome caused by her work and that in 2013, Claimant reported that she 

had pain while working and requested workers’ compensation information and 

forms for her condition and surgeries. 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, even if it is uncontradicted. Furnari, 90 A.3d at 59, 

70; Stalworth, 815 A.2d at 29; Kocher’s IGA, 729 A.2d at 147; Hoffmaster v. 

Workers' Compensation Appeal Board (Senco Products, Inc.), 721 A.2d 1152, 

1155-56 (Pa. Cmwlth. 1998). 

[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. 
9

The WCJ’s credibility determinations here were neither arbitrary nor 

capricious. The WCJ had the opportunity to observe the demeanor of Claimant and 

her daughter, as both testified before the WCJ, and his assessment of their 

demeanor was one of the bases of his rejection of their testimony. (WCJ Decision 

F.F. ¶¶16-17.) Where, as here, there is conflicting testimony and all witnesses on 

that issue testified in person before the WCJ, the WCJ may properly base his 

credibility determination upon the demeanor of the witnesses and need have no 

further basis for rejecting a 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

A.3d 72, 77 (Pa. Cmwlth. 2012). In addition, the WCJ explained that Claimant 

and her daughter were not credible because their testimony was inconsistent with 

Claimant’s behavior at the time and the documentary evidence and was 

contradicted by the credible testimony of Employer’s witness. (WCJ Decision F.F. 

¶¶16-18.) 

Claimant thus showed only that she told Employer on two occasions

in 2013 that she needed time off for surgery and that her short term disability form 

received by Employer in October 2013 stated that the surgeries were carpal tunnel 

release surgeries. 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 

has 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. Gentex 

Corp., 23 A.3d at 530, 537-38 (adequate notice of work-related injury was shown 
10

where claimant notified employer that she suffered pain in her hands at work that 

prevented her from doing her job and, after initially reporting that her condition 

was not work related, told employer that her problems were work related); 

Kocher’s IGA, 729 A.2d at 149 (notice of work-related injury was sufficient where 

claimant notified employer that she suffered arm or wrist pain while working, that 

she could not work because of this condition and that she was unsure whether the

condition was work related).

4

 Here, however, the WCJ found that Claimant never 

told Employer that she had pain or difficulty doing her job and never told 

Employer that her condition might be work-related. (WCJ Decision F.F. ¶¶3c, 3f, 

18.) Because Claimant did not show that she gave Employer any notice that her 

medical condition arose at work, that it affected or was affected by her work, or 

that she thought that it might be work-related, Claimant did not satisfy her burden 

of showing that she timely gave notice of a work-related injury.

Moreover, Claimant also failed to prove that her injury was work

related. Where causation is not obvious, the claimant must prove the connection 

between her injury and her work by credible, competent medical opinion. Lewis v. 

Workmen’s Compensation Appeal Board (Pittsburgh Board of Education), 498 

A.2d 800, 802 (Pa. 1985); Penske Logistics, 132 A.3d at 1038; Taulton v. Workers’

Compensation Appeal Board (USX Corp.), 713 A.2d 142, 145 (Pa. Cmwlth. 1998). 

 

4 Contrary to Claimant’s contention, State Workmen’s Insurance Fund v. Workmen’s 

Compensation Appeal Board (Wagner), 677 A.2d 892 (Pa. Cmwlth. 1996) and Body Shop v. 

Workers’ Compensation Appeal Board (Schanz), 720 A.2d 795 (Pa. Cmwlth. 1998) do not hold 

that notice of injury is sufficient without any notice that the injury is work related. In Wagner,

when the claimant reported her medical problem to her employer’s president, she “told him she 

thought the disease was related to her employment.” 677 A.2d at 894. In Body Shop, there was 

no dispute that the Claimant gave notice of a work-related back injury and the employer in fact 

issued a Notice of Compensation Payable; the only issue as to the adequacy of the notice 

concerned the description of the injury. 720 A.2d at 796, 799.
11

Causation of a gradual, cumulative injury is not obvious and must be shown by 

medical evidence. Calcara v. Workers’ Compensation Appeal Board (St. Joseph 

Hospital), 706 A.2d 1286, 1289 (Pa. Cmwlth. 1998); Crenshaw v. Workmen’s 

Compensation Appeal Board (Hussey Copper), 645 A.2d 957, 962-63 & n.9 (Pa.

Cmwlth. 1994). Claimant was therefore required to prove by credible, competent

medical evidence that her hand and wrist injury was caused by her work for 

Employer. 

While Claimant’s medical expert, Dr. Katolik, opined that one of 

Claimant’s conditions was work-related, the WCJ found his causation opinion not 

credible. Where the WCJ finds that the medical evidence of causation is not 

credible, the claimant cannot meet her burden of proving that her injury is work 

related and denial of the claim petition is required. Stalworth, 815 A.2d at 29-30; 

Taulton, 713 A.2d at 145. In such a case, “[t]he effect is as if Claimant produced 

no medical evidence at all.” Taulton, 713 A.2d at 145. As discussed above, 

credibility determinations are exclusively committed to the WCJ, as the factfinder. 

The WCJ explained that he rejected Dr. Katolik’s causation opinion because it was 

based on information concerning Claimant’s work hours and duties that was 

inconsistent with the evidence in the record. (WCJ Decision F.F. ¶20.) The 

WCJ’s rejection of Claimant’s expert was adequately explained and was not 

arbitrary or capricious. 

Given the WCJ’s credibility determinations, Claimant could not meet 

her burden of proof and denial of the claim and penalty petitions was required. 

Accordingly, we affirm the Board’s order. 

____________________________________

JAMES GARDNER COLINS, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Deynaria Perez, :

:

Petitioner :

:

v. : No. 779 C.D. 2016

:

Workers’ Compensation Appeal :

Board (GMRI, Inc.), :

:

Respondent :

O R D E R

AND NOW, this 21st day of November, 2016, the order of the 

Workers’ Compensation Appeal Board in the above matter is AFFIRMED.

____________________________________

JAMES GARDNER COLINS, Senior Judge