Amendment of PA Work-Related Injury Not Barred

Back in 2008, we discussed the decision of the Commonwealth Court of Pennsylvania in the matter of Weney v. Workers’ Compensation Appeal Board (Mac Sprinkler Systems, Inc.) [Note that the formatting, with the WCAB listed as the party and the Employer in parentheses, has been reversed since this decision].  This decision terrified attorneys who represent injured workers in Pennsylvania.

Essentially, Weney stood for the proposition that if a work injury is in litigation, and there is an aspect of the injury that was either raised, or should have been raised, the injured worker is barred from trying to bring it up in a subsequent litigation (what the court calls “technical res judicata”).  The consequence of barring a condition from being added in the future, even if it was never even litigated in the past, is both a great fear and a terrible injustice to us in the workers’ comp Claimant bar.

However, the Commonwealth Court of Pennsylvania does recognize limits to this concept.  This was addressed by the Court in the recent case of Michael N. Lewis, Sr. v. City of Philadelphia (Workers’ Compensation Appeal Board).  The injured worker here was a police officer, who in 2017, sustained injuries to his hand/wrist, low back, chest wall, and thoracic spine while attempting to subdue a burglary suspect.  The injury was properly accepted by issuance of a Notice of Compensation Payable (NCP).

In 2021, the injured worker filed the first Petition for Review, seeking to add concussion and concussion-related symptoms.  This was resolved by the issuance of a Stipulation, amending the description of injury to include concussion, headaches, balance issues, and vision issues.  The Stipulation also included the following language, “The parties agree that this Stipulation does not prevent the parties from filing future petitions and other relief as appropriate pursuant to the Worker’s Compensation Act.”

Subsequently, several months later (still in 2021), the injured worker filed the second Petition for Review, now seeking to add psychological injury, resulting from the physical injury.  After hearing the evidence presented by the parties, the Workers’ Compensation Judge (WCJ) issued a decision granting the Petition for Review, and adding psychological injury to the accepted description of injury.

Upon appeal, the decision of the WCJ was reversed by the Workers’ Compensation Appeal Board (WCAB).  The WCAB noted that the injured worker was aware of the psychological symptoms at the time of the first Petition for Review, and he elected not to raise the psychological injury in that litigation.  Since Weney applies to a condition which was raised, or should have been raised, the WCAB believed that this case was consistent with Weney and that the injured worker was precluded from litigating the psychological injury in the second Petition for Review.

Fortunately, for the injured worker and the interests of justice, the opinion of the WCAB was then reversed by the Commonwealth Court of Pennsylvania, who concluded that the WCJ properly granted the Petition for Review.  The Court found that Weney could be distinguished from this case.

Specifically, the Court noted that, in Weney, the two Petitions for Review concerned physical injuries from the same incident, and the doctor who testified for the injured worker was treating the body part in the second Review Petition at the time he testified on the first.  In this matter, the Court found that we were dealing with a physical injury, and then a psychological injury.  Moreover, the Court stressed that although the injured worker was diagnosed with the psychological injury earlier, there was no evidence that “Claimant was aware that his depression was a compensable work injury at the time of Review Petition 1.”

The Court summed up the decision by saying, “there is no ‘concrete evidence’ here that Claimant was aware before filing Review Petition 2 that his psychological symptoms were (a) indicative of a particular, compensable injury and (b) related to the work incident.”  This, said the Court, distinguished this case from Weney.  The Court also noted the difficulties of diagnosing psychological injury (since that type of injury lacks the many diagnostic studies available to diagnose physical injuries).

Of note, the Court declined to address what effect, if any, the language in the Stipulation has on defeating a Weney argument.  That appears to be a decision to be left for the next case.  Unfortunately, this remains a concern when we try to resolve a Petition for Review by using a Stipulation.  The risk of being unable to add another compensable injury in the future has a definite chilling effect on being able to resolve such matters.