Posted On: February 8, 2013 by Glenn Neiman

Change of Injury Description Barred by Court

Several years ago, we discussed the decision in Weney v. Workers’ Compensation Appeal Board (Mac Sprinkler Systems, Inc.), wherein the Commonwealth Court of Pennsylvania precluded an injured worker from amending a description of injury, because the injured worker had previously filed a Petition to Review and did not address that body part or diagnosis.

We found that decision to be overly harsh, unfair to the injured worker, and counter-productive for the resolution of cases (in essence, the Court punished the injured worker for agreeing to resolve the first Petition to Review by Stipulation, rather than go through the litigation process). Now, for injured workers, things have gone from bad to worse.

Recently, the Commonwealth Court of Pennsylvania, in DePue v. Workers’ Compensation Appeal Board (N. Paone Construction, Inc.), had another opportunity to address this issue, and again elected to punish the injured worker for resolving some aspect of his case. We are again mystified as to why the appellate system insists on sending a message that resolution is full of dangers and is, perhaps, best avoided.

In DePue, the injured worker elected to settle the wage loss (“indemnity”) part of his case. This, as would be done typically, was accomplished by “Compromise & Release Agreement.” Since they were only resolving the wage loss part of the case, and the medical aspect was to remain open, the description of injury was not relevant to the proceedings.

When one settles a case by Compromise & Release Agreement, there is a specific form which must be used. The form has 19 numbered paragraphs. One of these paragraphs, Number Four, asks that the “nature of the injury” be stated. The Compromise & Release Agreement executed by Mr. DePue contained in this paragraph,“any and all injuries suffered at North Paone Construction Company, including but not limited to the accepted injuries of a severe closed head injury with seizure disorder and short term memory loss."

About two years later, Mr. DePue filed a Petition for Penalties, because the workers’ compensation insurance carrier refused to pay for medical treatment to the left shoulder (the insurance company had been paying for such treatment for years), and a Petition to Review, to add the left shoulder as an accepted injury. In opposition, the workers’ comp insurance carrier submitted a copy of the Compromise & Release Agreement, and written memos between the parties which discussed whether the left shoulder should be added to the Agreement. The Workers’ Compensation Judge (WCJ) denied both Petitions, since the left shoulder was not mentioned on the Compromise & Release Agreement (and was not otherwise accepted in any other document), and since Mr. DePue was barred from now adding any further diagnoses to the work injury, under Weney. This was affirmed by Workers’ Compensation Appeal Board.

Upon further appeal, the Commonwealth Court of Pennsylvania also affirmed. The injured worker argued that this case was not like Weney – here there was no prior litigation involving a request to amend the description of his work injuries. In other words, the description of injury was never relevant to a decision in this matter. The Court found the written memos between the parties, discussing whether the left shoulder was to be included or not, to be critical. As the Court concluded:

“After negotiations with Employer, Claimant agreed to omit the left shoulder injury from the description of his injuries accepted by Employer in the C & R agreement.”

Thus, the Court found that, like in Weney, the nature of the injury was addressed in this litigation, and the injured worker had ample opportunity to litigate the issue, if he so chose (the Court neglects to note that the injured worker actually could not have litigated this issue in the context of the only pending process, a Petition for Approval of Compromise & Release Agreement). Under Weney, then, Mr. DePue is now barred from further expanding his injury.

This case does provide important information for those of us who represent injured workers every day. The Court took pains to note that Mr. DePue failed to “ . . . expressly reserve his right to add a new injury to the description of his work injuries.” Additionally, the Court also attached importance to the use of "any and all injuries" in the Compromise & Release Agreement. Situations like this one highlight the value of being represented by a firm, like Brilliant & Neiman LLC, which limits its practice to just handling PA workers’ compensation cases.