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On Sept. 29, the Supreme Court of Pennsylvania decided Westinghouse Electric Corp./CBS v. WCAB(Korach). Earlier this year, the Supreme Court had overruled the very troublesome Commonwealth Court decision in Jeanes Hospital v. WCAB (Hass). Although the general consensus is that Westinghouse is largely unintelligible, as it appears to contradict itself, the case actually clarifies the court’s holding in Jeanes Hospital when properly understood. The Supreme Court found in Jeanes Hospital that a workers’ compensation judge properly amended a notice of compensation payable (NCP) to include a shoulder injury, fibromyalgia, pain and various related psychiatric factors. The underlying Commonwealth Court ruling held that a claim petition is the appropriate pleading to be filed where a claimant seeks to add injuries not included in the accepted description of injury. The NCP at issue in Jeanes Hospital described the nature of the claimant’s work-related injury as “low back.” The Commonwealth Court’s decision had amended the long-standing practice of a claimant filing a petition to review compensation benefits where the injured worker sought to add injuries which arose subsequent to the work injury. Claim petitions, along with their elevated prima facie burdens of proof became the norm. The Commonwealth Court’s decision in Jeanes Hospital was unworkable from a practical perspective. Prior case law had provided that the form of the petition never controlled where the facts of a given case warranted relief to a claimant. There were also problems with providing legal notice of a “new injury” within 120 days as required by the Workers’ Compensation Act in a claim petition situation. In overruling the Commonwealth Court, the Supreme Court in Jeanes Hospital concluded that � 413(a), which provides for the filing of a petition to review NCP, controlled the disputed cases. The court also confusingly emphasized that � 413(a) provides that the review petition is to be “treated like a claim petition.” Notwithstanding the benefit in settling the “form of the petition” argument, the Supreme Court’s decision in Jeanes Hospital created much debate among judges and practitioners alike regarding the statute of limitations, notice and other issues which accompany every claim petition. If review petitions were to be filed but “treated like claim petitions,” then what was the point of the holding? Footnote six of the Supreme Court version of Jeanes Hospital specifically indicated that the court was not addressing the issue of notice since the employer did not raise it. In this space, my defense colleague and I traded articles seeking to shape the debate. I believe the issue was substantially clarified by the recent Supreme Court case of Westinghouse Electric Corp./CBS v. WCAB. Westinghouse is an extremely detailed and fact-rich case that does not bear repeating here in any detail. The main issue is addressed when the court provides a “conclusion” in the final paragraph, which reads: “In summary, we observe that, when the employer has not accepted an initial work-related injury, a claim petition must be filed within three years of the date of injury. 77 P.S. Section 602. That claim petition forms the basis for all injury claims that arise from the work incident, whether there was a material misstatement at the time that an NCP was issued or whether a subsequent emotional or physical condition flows from the original injury. 77 P.S. Section 411, Jeanes Hospital II. When a claimant sustains additional injuries that result from the original harm, a timely petition must be filed to add the injuries to those for which the employer is already responsible. 77 P.S. sections 771, 772, 773. When such a petition is filed, the WCJ must treat the respective burdens of the parties as if the review petition were an original claim petition. 77 P.S. Section 773. While a certain logic existed within the Commonwealth Court’s line of cases … because the employer had not accepted liability for problems that are not included in the NCP, the provisions of the Act do not support this interpretation. Moreover, by limiting claimants, who need to add additional injuries, to the three-year period following the date of the compensable injury, the Commonwealth Court has fostered a harsh result that is inconsistent with the humanitarian objectives of the Act.” This confusing and seemingly contradictory final sentence statement supports the conclusion that legal notice and statute of limitation issues are irrelevant under Jeanes Hospital. The main point is that there already exists an accepted injury of record that satisfies many of the burdens. Specifically accepted injury would necessarily satisfy the court’s requirement two sentences earlier, which calls for a “timely petition” to be filed. The situation can be analogized to litigating a claim petition in a “medical only” case where the employer is only disputing ongoing disability. In neither case is it necessary to require the claimant to litigate issues such as employment relationship, legal notice, statue of limitations and other elements of a “claim petition burden.” As in the “medical only” claim petition scenario, one would only need to submit the NCP in order to meet those burdens. Likewise, the burden in most review petitions can be met by merely offering into evidence the underlying NCP or judge’s decision. In Jeanes Hospital, the Supreme Court sought to emphasize the “often-overlooked third paragraph of Section 413(a).” That third paragraph essentially indicates that a petition for review of an NCP functions as a claim petition for the purposes of adding additional injuries. It was the court’s reliance on this plain reading of the act which lead it to the conclusion that a new claim petition is not necessary. In the same manner, the Westinghouse court emphasizes in its final sentence that requiring a three-year statue of limitations where there is already an accepted injury is “inconsistent with the humanitarian objectives of the act.” The rest of the case can only be reconciled with that statement if one considers that the Supreme Court was taking for granted that fact that the claim petition issues aside from the description of injury need not be re-litigated. Christian Petrucci is a solo practitioner and past co-chairman of the Philadelphia Bar Association’s Workers’ Compensation section. Petrucci concentrates his practice in workers’ compensation and also counsels injured workers in matters involving employment discrimination and Social Security. He can be reached at [email protected].

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