September 1, 2009

Injury Amendment:
Corrective versus Consequential

By Kevin L. Connors

All workers’ compensation practitioners are aware that the Pennsylvania Supreme Court had previously established a very complicated legal precedent in Jeanes Hospital v. WCAB, 872 A.2d 159 (Pa. 2005), under which Claimants were permitted to seek to amend the accepted description of injury, with the Jeanes Hospital Court allowing Claimants to file Review Petitions to “correct” Notices of Compensation Payable that did not contain a description of injury for which the Claimant sought amendment.

In Cinram Manufacturing v. WCAB, decided on July 21, 2009, the Supreme Court granted the employer’s Petition for Allowance of Appeal, in order to address the “correctness” of Jeanes’ Hospital directive, as it applied to corrective amendments of injuries described on Notices of Compensation Payable.

Claimant's original injury, in March of 2004 involved an “aggravation of a pre-existing medical condition.”

By way of brief background, the Claimant in Cinram, Brian Hill, was originally injured in March of 2004. His injury was accepted by the employer and its insurance carrier as being work-related, with the injury being described as a “lumbar strain/sprain” on the Bureau-filed NCP. That injury, while work-related, was regarded as involving an “aggravation of a pre-existing medical condition.”

Subsequent to the acceptance of the work injury as being compensable and work-related, the employer filed a Termination Petition, alleging a full recovery, in August of 2004.

Conflicting medical evidence was presented as to whether the Claimant was fully recovered from the work injury.

Not surprisingly, conflicting medical evidence was presented to the workers’ compensation judge, as to whether the Claimant was fully recovered from the work injury, or, alternatively, as the Claimant argued, that the Claimant had not fully recovered from the work injury, as the Claimant continued to suffer from an aggravation of a pre-existing disc herniation that resulted in nerve impingement, clearly a medical condition beyond the simple description of a “lumbar strain/sprain”, as had been set forth on the employer-issued NCP.

When ruling on the employer’s Termination Petition, the WCJ accepted the Claimant’s medical evidence, and the WCJ denied the Termination Petition, and amended the NCP to conform with an expansion of the accepted work injury, to include the aggravation of the pre-existing disc herniation.

There was no reference in the judge’s Decision to the judge having decided the case based on the legal precedent of the Jeanes Hospital ruling in 2005.

Appealing the judge’s Decision, the employer argued before the Workers’ Compensation Appeal Board, that the workers’ compensation judge did not have the authority to amend the NCP, as the Claimant had never filed a Petition to Review, seemingly being the procedural precedent as set forth by the Supreme Court in Jeanes Hospital.

To refresh, Jeanes Hospital had held that where a Notice of Compensation Payable does not accurately reflect the actual injury, or enumerate all of the injuries sustained in a work-related accident/incident, that the “Claimant must file a Petition to Review Notice of Compensation Payable, which petition is treated like a Claim Petition.”

The Appeal Board held that the judge had properly amended the NCP.

Affirming the judge’s Decision in Cinram, the Appeal Board held that the judge had properly amended the NCP under Section 413(a) of the Act; that section authorizes modification of an NCP as follows:

“A workers’ compensation judge may, at any time, review and modify or set aside a Notice of Compensation Payable 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.”

While the Appeal Board specifically cited to the Supreme Court’s Jeanes Hospital ruling, it did not discuss that ruling in the context of there being a requirement for the Claimant to file a Review Petition, for purposes of seeking an amendment of the accepted work injury by the NCP.

Appealing the Appeal Board’s Opinion to the Commonwealth Court, the Commonwealth Court likewise affirmed the judge’s amendment, with a majority of the Commonwealth Court citing to the plain language of Section 413(a) of the Act, whereas the dissent invoked the review-petition requirement, seemingly mandated by Jeanes Hospital.

Holding that its decision in Jeanes Hospital had not been “focused on the distinction between corrective amendments and amendments addressing subsequently-arising medical or psychiatric conditions related to the original injury (or “consequential conditions”), the Cinram Court began its analysis of this issue by indicating that corrective amendments, as opposed to amendments to address consequential conditions, required independent consideration, with the Court noting that Section 413(a) contained separate and distinct passages dealing with these distinguishable bases for amendment.

The Cinram Court held that this section permits corrective amendments where there has been an “inaccuracy” in the identification of an existing injury.

Directing attention to the first paragraph of Section 413(a), the Cinram Court held that this section permits corrective amendments where there has been an “inaccuracy” in the identification of an existing injury. Amendments that might pertain to an increase, decrease, recurrence, or cessation of disability, are consequently addressed in the second paragraph of Section 413(a), characterized as “consequential amendments.”

However, the amendment for a consequential condition, as contemplated under the second paragraph of Section 413(a) is only authorized “upon petition filed by either party.”

Consequently, the Cinram Supreme Court held that it was the Legislature’s intention to allow liberal corrective amendment, at any time and in any procedural context, again referring to amendments addressing inaccuracies in the identification of an existing injury, (“correcting amendment”) whereas amendments predicated on consequential conditions can only be made when considered in the context of a specific Review Petition.

Applying these two matrices to NCP amendment requests, the Cinram Court effectively clarified its prior holding in Jeanes Hospital, to the extent that the prior holding had suggested an absolute requirement of a Review Petition as a predicate for a corrective amendment.

Specifically, the Cinram Court noted that some of the injuries for which the Claimant had sought amendment in the Jeanes Hospital case had involved “consequential conditions as opposed to injuries existing at the time of the notice’s issuance”, establishing the requirement for a Review Petition to have been filed to amend the accepted and described injury on the NCP.

The precedent established in Jeanes Hospital never addressed the textural differences between the first and second paragraphs of Section 413(a), and did not, therefore, extend to the corrective amendment context,

As explained by the Supreme Court in Cinram, the precedent established in Jeanes Hospital never addressed the textural differences between the first and second paragraphs of Section 413(a) of the Act, and its reasoning did not, therefore, extend to the corrective amendment context, as the central issue in that case actually dealt with an amendment based on consequential conditions.

Recognizing the laboring oar borne by employers confronted with defending against Claimants seeking belated compensation description adjustments, the Court nevertheless noted that the amendment powers of the first paragraph of Section 413(a) are discretionary, as that section states that the workers’ compensation judge “may” correct the NCP at any time, presumably contemplating situations in which the workers’ compensation judge would not amend or correct an NCP.

So holding, the Supreme Court ruled that the Claimant in Cinram was not required to file a Review Petition, in an effort to seek a “corrective amendment” of the NCP.

Separately, the employer had also challenged the workers’ compensation judge’s finding of work-relatedness, arguing that objective diagnostic testing confirmed that the Claimant’s disc herniation, and any related nerve impingement, pre-dated the work injury that gave rise to the compensation claim.

The injury in Cinram fell into that category of injuries where circumstances blur the lines between objective and subjective findings.

Classically, the injury in Cinram fell into that category of injuries where there has been a history of congenital or degenerative abnormalities, and/or a history of prior injury, with a period of medical quiescence whatever that might be in a compensation benefit scheme, subsumed by a circumstantial aggravation that necessarily blurs the lines between objective and subjective findings.

As the line between objectivity and subjectivity are blurred, conflicting medical opinions arise concerning causation, with the conflicting medical opinions then ultimately becoming subject to credibility dispositions by the workers’ compensation judges.

In this vein, the Supreme Court in Cinram affirmed the underlying procedural affirmations by both the Appeal Board and the Commonwealth Court, that the workers’ compensation judge was the ultimate arbiter of credibility, and that substantial competent evidence supported the judge’s findings and conclusions concerning the work-relatedness of the circumstantial aggravation.

This decision was authored by Justice Saylor, and is cited at 975 A.2d 577 (Pa. 2009).

Speaking Cinram, this ruling stands for three propositions, as follows:

• Corrective amendments of NCPs do not require the filing of a petition, as a workers’ compensation judge always has authority, subject to the evidence under consideration, to amend the NCP, in order to correct inaccuracies in its description of injury.
• Requested amendments of NCPs to include consequential conditions do require the filing of a Review Petition, challenging the description of injury, with the Claimant carrying the burden of proving that conditions consequent to the original description of the work-related injury are causally related.
• Conflicting medical opinions concerning work-relatedness necessarily implicate the ultimate fact-finding function of the workers’ compensation judge, to resolve questions of witness credibility and competency.

The Cinram decision is by no means as expansive as either Commercial Credit or Jeanes Hospital had been, in the context of allowing the blurring of the battle lines over corrective versus consequential amendments, as this decision is limited to clarifying the Court’s earlier ruling in Jeanes Hospital, with the Cinram Court simply ruling that there is no statutory requirement that a Claimant seeking a corrective amendment must file a Review Petition.

Questions concerning this decision, its procedural and practical implications in your compensation practice, or any other issues with regard to workers’ compensation litigation, can be directed to our attorneys.

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