Whether PA Workers’ Compensation Insurance Carrier Has Notice of Corrective Amendment is Based on Totality of Circumstances

Unless a PA workers’ compensation claim is litigated, an injury is typically accepted by the workers’ compensation insurance carrier via a Notice of Compensation Payable (NCP) or Notice of Temporary Compensation Payable (TNCP).  If an NCP, or a TNCP, is issued by the insurance company, they have the ability to unilaterally describe the nature of the injury.  Unless challenged by the injured worker, this is the only condition for which the insurance carrier need pay medical bills.  As you might imagine, this is a frequent area of litigation.

Litigation to amend the description of injury comes in two different types, which have previously been discussed on this blog.  A “corrective amendment” is for a condition which existed at the time of the original work injury; a “consequential condition” is one which developed after the date of the injury.  The method of litigation, time limitations and relative burdens may vary between the two.

Recently, the Commonwealth Court of Pennsylvania addressed this issue in Walter v. Workers’ Compensation Appeal Board (Evangelical Community Hospital).  Here, the injured worker (Claimant) worked as an emergency medical technician.  She injured her left shoulder lifting a patient on May 20, 2007.  An NCP was issued, accepting “left shoulder strain.”  Claimant underwent shoulder surgery later in 2007.

Subsequent litigation of a Petition to Review in 2010 led to a Workers’ Compensation Judge (WCJ) amending the description of injury to include “left impingement syndrome, tendonosis, distal supraspinatus left, sensitization left shoulder, left AC joint synovitis, left infraspinatus muscle atrophy, and left shoulder scapular dyskinesia.”

After this decision, later in 2010, Claimant had a second surgery, this a “left open suprascapular nerve decompression,” a procedure required for the diagnosis of “chronic severe left suprascapular neuropathy.”  The following year, 2011, the workers’ compensation insurance carrier filed a Petition for Termination, alleging Claimant had fully recovered from her work injury.

In this litigation, the WCJ found the opinion of Claimant’s medical expert more credible than that of the insurance carrier’s expert.  Since Claimant’s medical expert testified that the chronic severe left suprascapular neuropathy was related to the original injury, and had not fully resolved, the WCJ denied the Petition for Termination, and added the chronic severe left suprascapular neuropathy to the description of injury.  The insurance carrier appealed, and the Workers’ Compensation Appeal Board (WCAB) reversed that part of the decision which added the additional diagnosis to the accepted injury.  Essentially, the WCAB believed that the insurance carrier did not have sufficient notice that the description of injury was at issue.

Upon further appeal, the Commonwealth Court of Pennsylvania reversed the decision of the WCAB, and reinstated the original decision of the WCJ.  The Court first rejected the argument raised that the amendment to the description of injury required the filing of a Petition to Review.  Since this condition, according to the credited medical testimony, was present in the original work injury, this was a “corrective amendment” for which no Review Petition is required.  A WCJ can make a “corrective amendment” with any pending petition.

Next, the Court disagreed with the WCAB, and found that the insurance carrier had sufficient notice that an amendment to the description of injury was at issue.  As the Court said, “Whether an employer has had a fair opportunity to contest the corrective amendment is determined on a case-by-case basis by looking at the totality of circumstances.”  Here, the Court noted that, at the first hearing, Claimant brought up the surgery (to address the left suprascapular neuropathy) and said she had not fully recovered.  There had also been a Utilization Review, to address whether this surgery was reasonable and necessary.  Further, the medical expert obtained by the insurance carrier addressed the diagnosis in his deposition.  Based on these facts, the Court concluded that the insurance carrier had adequate notice that such a diagnosis was at issue.

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