Appealing a PA Workers’ Compensation Decision; Reinstating Accepted Work Injury

Complicated fact patterns tend to make for complicated blog entries.  A recent decision by the Commonwealth Court of Pennsylvania in McNeil v. Workers’ Compensation Appeal Board (Department of Corrections, SCI-Graterford) is one of these situations, but is valuable for the lessons contained within.

In that case the injured worker (“Claimant”) tripped and fell on January 26, 2011, injuring her low back and left shoulder.  A Claim Petition was filed.  In the interim, a Notice of Compensation Payable (NCP) was issued accepting first left ankle sprain and left shoulder sprain, then later amended to add low back sprain.  Eventually, the Claim Petition was granted, so that the accepted work injury included, “left ankle sprain, acute cervical strain, acute back pain, musculoskeletal injury of the left shoulder, mild edema of the left ankle, left shoulder sprain, and tenderness of the Claimant’s left shoulder and upper and lower back.”  There was no appeal of this decision.

After the decision was rendered in the Claim Petition, the workers’ compensation insurance carrier filed a Petition for Termination, alleging that Claimant had fully recovered from the work-related injuries. The Petition for Termination was based on a May 21, 2014 “Independent” Medical Examination (IME, though a more realistic term is Defense Medical Examination, or DME).  Claimant filed Petitions for Review (to amend the description of injury) and Penalties (for the failure to pay for medical treatment related to the work injury); these Petitions were consolidated with the Petition for Termination.

Claimant first saw a new doctor, Dr. Andrew Kuntz, on July 18, 2014.  On August 7, 2014, Claimant underwent an MRI of her left shoulder, which revealed a partially torn  tendon and degenerative changes.  Neither the testimony of Dr. Kunitz, nor the results of the MRI were admitted into evidence.  Dr. Kuntz performed arthroscopic surgery on Claimant’s left shoulder on December 30, 2014.  Though the evidentiary record before the Workers’ Compensation Judge (WCJ) was closed by the time of the surgery, the WCJ had not yet issued a decision.  Also, Claimant did not make a motion to re-open the evidentiary record.

Based on the evidentiary record, the WCJ granted the Petition for Review, in part.  Significantly, the aspect seeking to add left shoulder rotator cuff tear was denied.  The WCJ also granted the Petition for Termination, as of May 21, 2014.  Both parties appealed and the WCAB affirmed the decision of the WCJ.  Neither party appealed this decision to the Commonwealth Court of Pennsylvania.

Instead, Claimant filed a Petition to Reinstate, based on the shoulder surgery of December 30, 2014.  There was only one hearing on this new Petition, at which Claimant stated that the Petition for Reinstatement was based upon the surgery for the left rotator cuff tear.  Claimant attached records of Dr. Kunitz to the brief.  The WCJ then issued a decision dismissing the Petition for Reinstatement, since the left shoulder rotator cuff tear was already found unrelated to the work injury.  This was affirmed by the WCAB.

On appeal, the Commonwealth Court of Pennsylvania also affirmed the decision.  First, the Court agreed Claimant cannot again litigate whether the rotator cuff tear was related to the work injury.  That issue, once decided, cannot be raised again (“collateral estoppel” is the term).  Second, the Court agreed that the records of Dr. Kunitz, simply attached to the brief of Claimant, were properly disregarded by the WCJ.  One must move for the admission of evidence, and just attaching a report to a brief does not rise to that level.

While it is hard to disagree with the result in this case, one has to feel bad for the injured worker.  One wishes that when the surgery took place, a request that the evidentiary record be re-opened had been made.  Or an appeal of that decision regarding the Review Petition, rather than the Reinstatement Petition, had been taken.  We are, of course, not suggesting the attorney did anything wrong.  Indeed, we do not know the specific facts of the case, or the reasons behind the decisions that were made.  There could be very valid reasons for all of these decisions.  We simply cannot help but sympathize with the injured worker, who has to live with the results.


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