Pennsylvania Commonwealth Court Decision Highlights the Necessity of Addressing a Changing Injury Description During Termination Petition Litigation

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In City of Allentown v. WCAB (Bryant, Jr.) No. 593 C.D. 2020, a recent Pennsylvania Commonwealth Court decision affirmed the WCJs denial of a Petition to Terminate, as employer failed to prove that claimant was fully recovered from the work-related injury, as amended by the WCJ. The memorandum opinion signed by President Judge Leavitt on March 11, 2021, affirmed the WCJs decision that claimant’s work-related injuries exceeded those on the Notice of Compensation Payable. On this basis, employer’s Termination Petition was denied.
 

Background of the Claim

Claimant in this case was injured on December 9, 2013. Employer issued a medical-only NCP describing an “upper back strain.” Employer then issued an amended NCP describing an “acute strain to the thoracic spine.” Employer later filed a Petition to Terminate.  

At the first hearing, the parties discussed the proper description of injury. The WCJ noted the first NCP described an “upper back” injury. He was advised that the area of the body at issue was “cervical” with possible symptoms into the “thoracic region.” Employer’s evidence was via testimony from a board certified physician in physical medicine and rehabilitation, who opined claimant suffered from neck pain attributed to the cervical strain and right shoulder pain attributed to the thoracic strain and right cervical disc displacement at the C6-C7 level. He stated the neck and right shoulder pain were work-related but had fully resolved. In opposition, claimant testified that he benefitted from cervical injections, and claimant’s expert physician testified that an MRI revealed disc herniations at C5-C6 and C6-C7 caused by the work injury. Employer objected to claimant’s physician’s testimony because he found the right shoulder pain to be caused by cervical disc herniations, which were not accepted in the NCP, and argued that claimant was barred by a three-year statute of limitations in Section 413 from amending the injury to include the cervical disc herniations.

The WCJ denied the Termination Petition. He found claimant’s cervical disc herniations to be related to the work injury and found the description in the NCP to be “materially incorrect” and thus amended it to include “annular tears/disc herniations at C5-C6 and C6-C7.” The WCJ rejected employer’s statute of limitations argument. The WCAB affirmed. Employer appealed, arguing that the WCJS expansion of the work injury description violated both its due process rights and the statute of limitations.

Holding

The Commonwealth Court noted Section 413 of the PA WC Act states, in part:

“… a WCJ may, at any time, review and modify or set aside a Notice of Compensation Payable  … in course of the proceedings under any petition pending before such WCJ, if it is proved that such NCP or Agreement was in any material respect incorrect.  

… no NCP, agreement or award shall be reviewed or modified or reinstated unless a petition is filed with the Department within three years after the date of the most recent payment of compensation made prior to the filing of such petition.”

The court then said that an NCP may be “corrected at any time.” It cited Cinram Manufacturing for the proposition that Sec. 413 means that “corrective amendments” to an accepted work injury do not require a Review Petition. Rather the WCJ can order a correction when the evidence supports it. Due process requires that employer be given a reasonable opportunity to contest a corrective amendment. Whether employer had a fair opportunity to contest is determined case-by-case by looking at the totality of the circumstances. Here, employer issued both two NCPs, which described the work injury as an acute strain of the upper back and thoracic spine. However, claimant was treating for cervical pain, and employer paid for cervical epidural injections. So, the court concluded employer had a fair opportunity to contest the ultimately upgraded injury description.

The court also rejected employer’s argument that the three-year statute of limitations applies, citing Fitzgibbons v. WCAB 999 A.2d 659, 663-664 (Pa.Cmwlth. 2010). The court said that Sec. 413 applies when a party is seeking to correct an NCP. The second paragraph of Sec. 413 applies when a party is seeking to expand the work injury to include consequential injuries, i.e., injuries that occurred as a result of the work injury, after issuance of the NCP. Here, the WCJ decision corrected the injury description based on evidence presented in litigation of the termination petition. The court noted the WCJ is allowed to do so “at any time … in the course of the proceedings under any petition pending … if it is proved that such Notice of Compensation Payable … was in any material respect incorrect”. Hence, the WCJs corrective amendment of the NCP - to include cervical disc herniations - did not violate Section 413 of the Act or employer’s due process rights.

Best Practices in Termination Petition Litigation

  1. Before an IME, confirm the description of injury and know that if there is an accepted strain injury, but a more significant diagnosis is noted in the records, the injury can be “corrected” and the description changed even if no Review Petition is ever filed. All diagnoses must be address in the IME, especially if they were never previously adjudicated.  
  2. Obtain all medical records of treatment to assess the presence/absence of any other condition or event that could cause related symptoms.
  3. Identify to the expert any disputed issues regarding causal relationship of any conditions to be addressed in the IME report.
  4. Consider a pre-IME medical records review to address any medical.

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