Review Petition to Add New Injury Barred in PA Workers’ Comp After Three Years

In an earlier blog entry, we discussed the 2009 decision by the Supreme Court of Pennsylvania in Cinram Manufacturing v. Workers’ Compensation Appeal Board (Hill). This case discussed the procedure for amending a Notice of Compensation Payable (NCP).

The Court, in Cinram, decided that a “corrective amendment” (a condition which was present at the time of the injury and was erroneously left off the NCP) was to be treated differently than a “subsequently-arising” or “consequential” condition (a diagnosis not present at the time of the injury, but rather developed after the date of the injury). In the former, a Workers’ Compensation Judge (WCJ) can amend the NCP at any time any type of Petition is being litigated. On the other hand, in the latter, the injured worker must actually file a Petition to Review to achieve an amendment to the NCP.

An issue left open in Cinram was the appropriate “statute of limitations” in either of these situations. This issue has now been addressed, by the Commonwealth Court of Pennsylvania, in Fitzgibbons v. Workers’ Compensation Appeal Board (City of Philadelphia). In this decision, the Court found there to be no difference between the two situations for statute of limitations purposes.

Whether the requested amendment to the NCP is a “corrective amendment” or a “subsequently-arising” or “consequential” condition, it now appears the injured worker must file their Petition within three years of the date of the most recent payment of workers’ compensation wage loss benefits. Failure to file a Petition within those three years may make such a Petition then barred in the future.

For the injured worker who does the right thing, and goes back to work, perhaps at modified or light duty, this may represent a trap of sorts. For example, Ms. Fitzgibbons was injured in 1997, and went back to work (at no loss in wages) in 1998. The workers’ compensation insurance carrier accepted the injury only as “epicondylitis of the left elbow.” In 2002, Ms. Fitzgibbons filed Petitions to Review (alleging she also hurt her neck, low back, left hip, leg and knee in the 1997 injury), and Reinstate (alleging she was now disabled by all of these injuries).

The Court found that her Petition to Review must fail, as she waited more than three years from the date of the last payment of compensation to file the Petition. So, while the Petition to Reinstate was timely (filed within the 500 week allotment), it too must fail, because the injury causing the disability was not that accepted by the NCP. Yet another example of how the unwary can fall victim due to the intricacies of the PA Workers’ Compensation Act.