Petition to Review in PA Workers’ Comp Must be Timely

Previously, we discussed the case of Fitzgibbons v. Workers’ Compensation Appeal Board (City of Philadelphia). In this decision, the Commonwealth Court of Pennsylvania held that a Petition to Review, to expand a description of injury, must be filed within three years of the last payment of workers’ compensation benefits.

This issue again came before the Commonwealth Court of Pennsylvania, in Dillinger v. Workers’ Compensation Appeal Board (Port Authority of Allegheny County), and the results were similar. On November 15, 2003, the injured worker was assaulted while driving a bus. As a result, she suffered a left shoulder strain. Workers’ compensation benefits were then suspended as of February 20, 2004. On March 22, 2007, the injured worker filed a Petition to Review, alleging that she also suffered post-traumatic stress disorder (PTSD) as a result of her injury. The injured worker also filed a Petition for Reinstatement and a Claim Petition.

A Workers’ Compensation Judge (WCJ) granted the Petition to Review and dismissed the Claim Petition, as moot. The WCJ found that the PTSD should have been accepted as part of the work injury and should be listed on the Notice of Compensation Payable (NCP). Upon appeal, this was reversed by the Workers’ Compensation Appeal Board (WCAB), based upon the Fitzgibbons decision.

The Commonwealth Court of Pennsylvania affirmed the decision of the WCAB. The Petition to Review was not timely, under Fitzgibbons, and must fail. The Petition for Reinstatement, since it was based on the PTSD, rather than the left shoulder strain, also must fail. The Court did reverse the WCAB, however, as to the dismissal of the Claim Petition. The injured worker may still attempt to prevail on the Claim Petition, so the Court remanded to the WCJ to make additional findings of fact to determine whether the injured worker met her burden of proof with regard to the Claim Petition.