Workers injured on the job in Pennsylvania often end up litigating the scope and extent of the work injury, even when the employer voluntarily accepts the work injury by issuing a Notice of Compensation Payable ("NCP"). For example, an employer may try to minimize the work injury by incorrectly describing an injury to the low back as a "low back stain/sprain" even though the worker has suffered a disc herniation at L4-5 or some other more serious condition. If the employer recognizes the injury and begins to pay benefits, however, the worker has little incentive to immediately pursue litigation to correct the NCP. Instead, the issue often arises months or even years after the work injury when the employer is seeking to terminate workers' compensation benefits alleging a full recovery and the injured worker responds with evidence of ongoing disability related to additional conditions not identified in the NCP.
Employers frequently argue in termination proceedings that the injured worker must first file a formal petition known as a Review Petition in order to have the NCP corrected or modified and that failure to file the Review Petition bars any attempt to change the NCP. Of course, this created a potential trap for unwary workers and their counsel who might present strong evidence that the worker remains disabled as a result of the work injury but failed to file a formal petition to correct the NCP.
The Pennsylvania Supreme Court addressed this issue in the recent case Cinram Mfg., Inc. v. WCAB(Hill), 37 MAP 2008 (July 21, 2009) and provided some much needed guidance in this area. In the Cinram case, the employer recognized the injury as a "lumbar strain/sprain" and several months later filed a Termination Petition alleging a full recovery. The injured worker presented evidence, however, that he had suffered an aggravation of a pre-existing disc herniation which was beyond the condition that was accepted by the employer. Although the injured worker did not file a Review Petition to correct or amend the NCP, the Workers' Compensation Judge accepted the worker's evidence over the employer's objections and dismissed the Termination Petition.
On appeal, the Pennsylvania Supreme Court has now affirmed the the Judge's decision and announced that it is not necessary for an injured worker to file a Review Petition in order to seek a "corrective amendment" to an NCP. Rather, the Court held that the workers' compensation judge has the authority to amend the NCP during litigation on any type of petition, including a termination petition. The Court, however, carefully distinguished a corrective amendment, which simply adds a condition which had been present since the original work injury, and a "consequential amendment" which seeks to add a new condition that arises after the work injury but is still nevertheless related to the work injury. The Court held that if the worker is seeking to make a consequential amendment, the worker must still file a Review Petition.
While the Cinram case is clearly a victory for injured workers, the Court warned workers and their counsel that employers should be given fair notice of the grounds for any corrective amendment so that the issue can be fairly litigated before the judge. For injured workers, the Cinram case illustrates one of the many traps for injured workers and underscores the importance of seeking advice from an experienced Pennsylvania workers' compensation attorney early in the process so that the NCP can be reviewed and any necessary action taken to protect the worker's rights under the law.
