PA Injured Worker Unable to Add Medical Condition Related to Accepted Work Injury

As we have discussed in this blog previously, changes to an accepted work injury in PA come in two types – “corrective” and “consequential.”  The difference between these two situations can make or break a case, as recently illustrated by the Commonwealth Court of Pennsylvania in their decision in the Grow v. PECO Energy Company (Workers’ Compensation Appeal Board) matter.

A “corrective” amendment is when the condition was present at the time of the work injury.  In this situation, the injured worker need not file a Petition to Review, and the corrective amendment can be made by a Workers’ Compensation Judge (WCJ) in the litigation of any type of petition.  A “consequential” amendment, however, requires the filing of a Petition to Review.  This is used when the new condition is due to the accepted work injury, but takes place after the time of the injury (ie: as a consequence of that injury).  Significantly, a Petition to Review can only be filed within three years of the date of the last payment of workers’ compensation benefits.

Looking at the Grow case, the injured worker hurt his neck while working on November 4, 2013.  The injury was accepted by the workers’ comp insurance carrier, using a Notice of Compensation Payable (NCP), which described the work injury as “contusions and fractures at C3-C4.”  As a result of the work injury, disc fusion surgery was performed.  To his credit, the injured worker went back to work on January 10, 2014, and the workers’ comp benefits were suspended.

Subsequently, the condition of the injured worker worsened, such that he underwent cervical disc replacement surgery, at the C6-C7 level, on December 22, 2021.  On January 4, 2022, the injured worker filed a Petition to Reinstate, and a Petition to Review (to add the damage at C6-7).

After hearing the evidence, the WCJ granted both Petitions.  The WCJ specifically rejected the argument made by the workers’ compensation insurance company that the claim was barred by time.  Since the Petition to Reinstate was filed within 500 weeks of the suspension of benefits, the WCJ found that it was timely.  Upon appeal, the Workers’ Compensation Appeal Board (WCAB) reversed the decision of the WCJ, finding that the Petitions were time barred.

On further appeal, the Commonwealth Court of Pennsylvania affirmed the decision of the WCAB.  The Court found that this was a consequential amendment, as the damage as C6-7 was not present at the time of the work injury.  As such, the Petition to Review had to have been filed within three years of the date of the last payment (January, 2014).  Since this was not done, the Petition to Review was not timely and was barred.  Meanwhile, the reinstatement was based upon the surgery at C6-7, so the reinstatement was due to the consequential condition, not the accepted work injury.  Therefore, the Petition to Reinstate was also properly denied, said the Court.

While, by the letter of the law, this decision is consistent, it remains rather troubling.  As the injured worker in this case noted, he was not aware of the problem at C6-7 before needing the surgery, so he could not possibly have filed a Petition to Review during the available time.  So, there is no dispute that the problem at C6-7 was due to the original work injury (as found by the WCJ).  But, because of the timing, the injured worker is completely out of luck.  Is this really how we want the Pennsylvania Workers’ Compensation System to function?  Is this how we want workers across the State of Pennsylvania to be treated?