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In Cinram Manufacturing Inc. v. W.C.A.B. (Hill), decided by the Commonwealth Court of Pennsylvania last month, the law regarding the expansion of an accepted description of injury has come full circle. The Cinram court essentially held that the workers’ compensation judge did not err in expanding the claimant’s accepted work injury from a lumbar strain to a herniated disc during the pendency of a termination petition, despite the fact that the claimant never filed a review petition seeking to expand the injury. Traditionally, this had been the law until the last few years. However, the holding in Cinram would seem to put the court at odds with the Pennsylvania Supreme Court’s holding in Jeanes Hospital v. W.C.A.B. (Hass), which went to great lengths to define the proper petition required to amend a description of injury. If the nature of the petition is so important, a case that requires no petition would seem to be hard to reconcile. The facts of the case begin when the claimant suffered a work injury on March 24, 2004. The employer issued a notice of compensation payable (NCP) describing the injury as a lumbar strain/sprain. On Aug. 13, 2004, the employer filed a petition to terminate compensation benefits based on the opinions of orthopedic surgeon, Robert Smith, and neurologist, Kevin Madden, that the claimant had recovered from his work injury as of July 12, 2004. The claimant presented the deposition testimony of his treating orthopedic surgeon, Alan Gillick, to rebut the notion of full recovery and to opine that his work injury was actually a herniated lumbar disc. The WCJ credited the testimony of Gillick that the herniated lumbar disc was either caused or materially aggravated by the March 2004 work injury. Consequently, the WCJ amended the NCP to reflect the new injury. The WCJ also denied the employer’s termination petition on the same basis, concluding that the employer failed to establish that the claimant had recovered from the lumbar sprain/strain or the herniated disc. The Workers’ Compensation Appeal Board affirmed the WCJ’s decision that the NCP was materially incorrect because it did not include the claimant’s herniated lumbar disc and found that the WCJ had properly amended the NCP. The WCAB further agreed that the employer failed to offer any evidence tending to demonstrate that the claimant had recovered from his herniated lumbar disc. On appeal to the Commonwealth Court, the employer argued that the WCJ exceeded his authority by expanding the description of injury sua sponte, as the claimant had never filed a review petition. The employer further contended that the claimant failed to present medical evidence to refute its case that he had fully recovered from the only accepted work injury of record, which was a lumbar sprain/strain. The employer similarly suggested that the claimant’s evidence was incompetent since Gillick failed to acknowledge that the claimant’s work injury was limited to a lumbar strain/sprain. In its analysis, the court cited to the law regarding the employer’s burden in a termination proceeding, which is to prove that the claimant’s work injury has ceased. However, in the same breath, the court also mentioned Jeanes Hospital‘s treatment of the first paragraph of Section 413(a) of the Workers’ Compensation Act. The court quoted from Jeanes Hospital: “The WCJ may amend the description of the claimant’s work injury by modifying an NCP if it is proved to be materially incorrect or if the claimant’s disability status has changed. An NCP is materially incorrect if the accepted injury fails to include all of the injuries that the claimant suffered in the work incident, including injuries that cause an increase in the claimant’s disability.” The problem with this quote is that the Supreme Court in Jeanes Hospital specifically stated that Section 413(a) requires a claimant to file a petition to review NCP, “which is treated like a claim petition.” The court found that by filing the petition to review NCP, the claimant in Jeanes Hospital “sustained her burden of demonstrating a material misstatement of fact.” The court said nothing of an exception to that requirement. The Cinram court seems to get its authority form the plain reading of the act itself. The Cinram court quotes the first paragraph of Section 413(a) of the act, which provides: “A workers’ compensation judge may, at any time, review and modify or set aside a notice of compensation payable and an original or supplemental agreement or upon petition filed by either party with the department, or in the course of the proceedings under any petition pending before such workers’ compensation judge, if it be proved that such notice of compensation payable or agreement was in any material respect incorrect.” Without addressing the holding in Jeanes Hospital, the Commonwealth Court simply stated that the record contains sufficient competent evidence to support the WCJ’s finding that the claimant sustained a herniated lumbar disc as a result of the March 2004 work injury. It further quoted the “well settled law” that the appellate role is not to reweigh the evidence or to review the credibility of the witnesses. Therefore, without stating as much, the court relied on the phrase “under any petition” taken from Section 413(a). Up until the Commonwealth Court holding in Jeanes, the form of the petition had always been understood not to be controlling where the facts of a given case warrant relief to a claimant. The Commonwealth Court itself even specifically affirmed this notion in Coover v. W.C.A.B. (Browning – Ferris Inds.) In overruling the Commonwealth Court in Jeanes Hospital, the Supreme Court concluded that in cases where an injury “does not reflect the actual injury or enumerate all of the injuries sustained in the incident,” Section 413(a) sets forth the controlling procedure. While the Cinram court clearly relies on Section 413(a), it seems to ignore Jeanes Hospital itself. Any attorney who litigates workers’ compensation cases will confirm that the holding in Cinram is favorable and is often necessitated by the practices of the insurance industry. Usually, claims adjusters will define the description of injury in the light most favorable to the employer; often as sprains or strains. However, the adjuster will also routinely pay medical expenses for anything that the treating doctor defines as work related. Therefore, the process of lulling unsuspecting claimants into a false sense of security would seem to be substantially more troubling than any perceived notice issue that the employer might have. If both parties are aware what the actual nature of injury is, notwithstanding what it might say on the NCP, it would only seem right to have the actual description of injury amended following a complete litigation on the claimant’s medical condition. Any other result would be form over substance. Nonetheless, given the discrepancy with Jeanes Hospital, the Supreme Court is seemingly going to have to address this holding. CHRISTIAN PETRUCCI is a solo practitioner and past co-chairman of the Philadelphia Bar Association’s Workers’ Compensation Section. He concentrates his practice in workers’ compensation litigation and Social Security disability. He can be reached at 215-545-0330 or via e-mail [email protected] .

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