Once a work injury in Pennsylvania is accepted by Notice of Compensation Payable (NCP), there is a process to add to, or change, the description of the accepted injury or condition. Sometimes, this is critical, to make the workers’ comp insurance carrier pay for treatment for the injury or condition at issue.
As discussed in a previous blog entry, the process differs slightly, depending on whether the injury or condition was present on the day of the injury (called a “corrective amendment”), or occurred thereafter (called a “subsequently-arising” or “consequential” condition). While both types have the same time limitations to be raised (within three years of the date of last payment), the difference between the two can be the difference between winning and losing.
For example, look at the recent decision of the Commonwealth Court of Pennsylvania in the case of Pizza Hut, Inc. v. Workers’ Compensation Appeal Board (Mahalick). Here, the claimant’s injury was accepted by NCP as a low back strain or sprain. Her workers’ compensation benefits were suspended as of March 26, 2003. On December 26, 2006, claimant filed a Petition to Review, to amend the description of injury to include bulging discs and facet arthropathy in her lumbar spine.
Since this was filed more than three years after the date of the last payment, claimant’s Petition for Review would have been too late. Except, fortunately for claimant, the amendment being sought was a corrective one (not requiring a Petition for Review to be filed) and there was already a Petition pending, filed by the workers’ compensation insurance carrier BEFORE the three years expired.
The Court found that since the litigation was instituted before the expiration of the three years from the date of last payment, and a corrective amendment can be made by a Workers’ Compensation Judge (WCJ) “in the course of the proceedings under any petition pending before such workers’ compensation judge,” [Quoting Section 413 of the Pennsylvania Workers’ Compensation Act], the requested amendment was timely. Since the WCJ found claimant’s medical evidence credible, claimant prevailed.
Had this been a request for a “subsequently-arising” or “consequential” condition, however, claimant would have lost, since her Petition for Review was filed beyond the allotted three years.