Supreme Court Clarifies When Petition Needed To Review NCP

Pennsylvania -- Workers' Compensation

In the case of Cinram Manufacturing, Inc. v. W.C.A.B. (Hill), 975 A.2d 577 (Pa. 2009), decided July 21, 2009, the Supreme Court of Pennsylvania clarified the issue of how a Notice of Compensation Payable ("NCP") is properly amended for either a mistake or for consequential injuries which have occurred after the original incident. In doing so it overruled in part the leading precedent on the issue, Jeanes Hospital v. W.C.A.B. (Hass), 872 A.2d 159 (Pa. 2005).

In the Cinram case the claimant, Brian Hill, injured his low back in March of 2004. The employer issued a NCP accepting the injury as a "lumbar strain/sprain." Five months later it filed a Petition for Termination alleging the claimant had made a full recovery from the work injury. In opposition to this petition, the claimant offered evidence that the original work injury had aggravated a pre-existing disc herniation, resulting in nerve impingement. The Workers' Compensation Judge ("WCJ") credited this evidence, denied the Petition for Termination, and further directed amendment of the NCP to expand the accepted injury to include an aggravation of a pre-existing disc herniation resulting in nerve impingement. The employer appealed that decision to the Workers' Compensation Appeal Board ("W.C.A.B."), arguing that the WCJ lacked authority to amend the NCP because the claimant had not filed a Petition to Review as directed by Jeanes Hospital. The W.C.A.B. rejected this argument and affirmed the WCJ's decision, holding that the NCP had been properly amended under Section 413 (a) of the Act, which states that a WCJ may modify an NCP at any time upon proof of inaccuracy. The employer appealed this decision to the Commonwealth Court where a divided three-Judge panel affirmed the W.C.A.B. Finally, the employer appealed to the Supreme Court of Pennsylvania.

The Supreme Court has affirmed the decision of the WCJ, the W.C.A.B., and the Commonwealth Court, specifically overruling Jeanes Hospital to the extent that said case suggested that a Petition to Review was necessary when arguing that an original NCP was in material respect incorrect. The Court noted that there are two differing types of reviews. The first occurs when an NCP was in some material respect incorrect. In such a case, where a claimant seeks to show that the NCP itself was incorrect, the Court concluded that no petition need be filed as the Act gives a WCJ power to make such a change at any time.

The Court next explained that the other type of review pertains to an alleged increase, decrease, recurrence, or cessation of disability. It termed these as "consequential conditions" and ruled that when a worker has such a subsequently developing physical or mental condition, a separate Petition to Review is required. It then stated that in the case before it the WCJ had merely corrected the NCP for a mistake and that no new petition was required.

Given the above clarification, it is suggested that at the first hearing for any petition filed by an employer, an inquiry be made on the record as to whether or not the claimant will be attempting to amend the description of injury. In this way the employer's medical expert will have an opportunity to comment upon the allegation or, if necessary, a new Independent Medical Examination can be requested. Finally, if confronted with an apparent attempt to increase a description of injury at a late state of a proceeding, defense counsel should argue prejudice and remind the WCJ that the language of the Act is discretionary in that it only says that the WCJ "may" amend a description of injury based upon material mistake of fact. If confronted with sufficient prejudice, a WCJ can hopefully be persuaded not to permit the change.

*Bill, a shareholder in our Bethlehem, Pennsylvania, office, can be reached at (484) 895-2306 or wzscott@mdwcg.com.

Defense Digest, Vol. 15, No. 4, December 2009