Workers� Compensation Claimant must file claim petition for conditions resulting from original work injury

A petition for review can only be filed when the claimant�s disability arises as a natural consequence of the work-related injury, the Commonwealth Court ruled on Feb. 18 in Jeanes Hospital v. WCAB (Hass).

According to the opinion, claimant Shawn Hass was employed by Jeanes Hospital as a nurse. In August 1995, Hass was injured during the course and scope of his employment. Employer accepted liability via a Notice of Compensation Payable in October of 1995. The notice said that Hass had a low back injury. In September of 1999, employer filed a Termination Petition, stating that Hass had recovered from her work injury. A few weeks later, Hass filed a petition requesting that the Notice of Compensation payable be amended to include work-related shoulder injuries, fibromyalgia, thoracic outlet syndrome and depression.

Hass presented two expert witnesses before the WCJ. Employer also presented two expert witnesses. The WCJ found Hass� experts� testimony was more credible than the employers and concluded that Hass� work-related injuries included �fibromyalgia and pain disorder with associated psychological and physical factors.� The WCJ amended the NCP to include those injuries, and the Board affirmed. Employer then appealed to the Commonwealth Court.
In its appeal, the employer raised two issues: �Whether the WCJ erred as a matter of law in allowing Claimant to file a review petition to amend the original NCP; and whether the WCJ erred in denying Employer�s termination petition because the evidence of record does not show that her recognized injury, i.e., low back, continues.�

The opinion states that the employer relied on the court�s decision in A.T. & T. v WCAB (Hernandez) in stating that the WCJ erred because a claimant cannot file a review petition to amend a voluntary admission on an NCP. �Employer points to language in a footnote of A.T. & T., in which the court stated, �we note that the Pennsylvania Workers� Compensation Act (Act), Act of June 2, 1915, P.L. 736 as amended, 77 P.S. Section 1-1041.4, makes no provision for a claimant to amend a notice of compensation payable to include an additional injury not admitted to by the employer at the time the employer initially issued the notice of compensation payable.� In that opinion, the court said that the claimant should have filed a claim petition to receive benefits for an injury he alleged resulted from the original injury.

Conversely, the claimant in the present case relied upon the court�s decision in Campbell v. WCAB (Antietam Valley Animal Hospital). The court in that case decided that a claimant may seek revision of an NCP through a review petition when the claimant alleges that a disability arose as a natural consequence of the work-related injury acknowledged by the employer. The opinion stated that, �the court in A.T. & T. distinguished Campbell, noting that the injury at issue in A.T. & T. did not involve a �disability that arose as a natural consequence of the work-related injury for which the employer already admitted liability in the NCP.�� The court went on to write, �We nevertheless opined that, even in a fact scenario such as that in Campbell, a claimant should file a claim petition rather than a review petition.�

The court said that injuries related to an original work-related injury that do not arise until after the NCP is filed, cannot provide a WCJ with the power to amend the NCP description of a claimant�s injury. The court stated that in such a case, the claimant should file a claim petition, not a review petition. �The only exception to this general rule occurred in Campbell, in which the court held that the claimant�s disability arose as a natural consequence of the work-related injury,� the court said.

Hass did not seek to amend her NCP until after the employer filed its suspension/termination petition four years after the original injury. The court stated that in this case, both a review petition and a claim petition were needed. The court relied on statutory reasons for denying the application of Coover to this case, citing a 3-year time period for filing compensation claims.

�Based upon this court�s decision in A.T. & T., and Section 312 of the Act, 77 P.S. Section 602, which establishes a statute of repose, we must conclude that the Board erred in affirming the WCJ�s decision,� the court wrote. �A claimant seeking compensation benefits for disabilities that are related to, but distinct from, an injury described in an NCP must file a claim petition rather than a review petition. In this case, the record indicates that Claimant�s fibromyalgia and pain disorder are conditions that did not exist at the time the claimant and employer entered the NCP. In such circumstances Claimant should have filed a claim petition.�

The court then addressed the termination petition. It determined that there was no credible evidence to support the termination petition, and the WCJ did not err in denying the petition. 

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