In Cinram Manufacturing, Inc. and PMA Group v. Workers’ Compensation Appeal Board (Hill), 975 A.2d 537 (Pa. 2009), the Pennsylvania Supreme Court recently clarified the Workers’ Compensation Judge’s (“WCJ”) discretionary ability to expand the nature and extent of accepted injuries set forth in a Notice of Compensation Payable (“NCP”) and lessened the obligation for Claimant’s counsel to properly plead their case in a filed Petition. Effectively, the WCJ is now permitted to modify or correct an injury description set forth on the Notice of Compensation Payable, regardless of whether Claimant’s counsel has made any allegation to that fact or filed a Petition to Review Compensation Benefits. There are limitations to the WCJ’s discretion in that the changes must be “corrective” and not merely an addition of a distinctly new injury and some notice or due process is owed to the Employer.

Jeanes Hospital v. WCAB (Hass), 582 Pa. 405, 872 A.2d 159 (Pa. 2005) was a prior Pennsylvania Supreme Court decision which held that a Review Petition must be filed by Claimant’s counsel as a prerequisite to amend or change the injuries listed on the Notice of Compensation Payable. This was a key case forcing Claimant’s counsel to actually plead new injuries or injury descriptions in a Petition to Review or Claim Petition and to litigate them fully before the Court. In other words, if Claimant’s counsel sought to add a knee injury to a low back sprain that had been previously accepted, a Review or Claim Petition had to be filed and litigated. The same requirement was present if the original injury was a lumbar strain that was sought to be expanded into an L4-5 disc herniation. The result was that, at a minimum, proper due process and notice was given to the Employer that Claimant and Claimant’s counsel were seeking to add and change the description of the injury.

Since the Jeanes Hospital decision in 2005, a flurry of Review and Claim Petitions were filed attempting to clarify and expand the specific accepted work injuries. It seemed that every Petition to Suspend/Modify or Terminate Compensation Benefits by the employer was countered with a Petition to Review Compensation Benefits or Claim Petition seeking to add or change the description of the injury. The requirement to file these Petitions forced Claimant’s counsel to specifically allege the proposed changes in their Petitions, which were essential for an Employer to prepare an appropriate defense without having to guess how the injury description would be modified.

In Cinram Manufacturing v. WCAB (Hill), the Employer filed a Termination Petition alleging full recovery based upon a “lumbar strain/sprain” injury set forth on the Notice of Compensation Payable. The only Petition pending before the Court was a Petition to Terminate Compensation Benefits; however, the WCJ denied the Petition to Terminate Compensation Benefits and expanded the description of injury from lumbar strain/sprain to include “aggravation of a pre-existing disc herniation resulting in nerve impingement.” This decision to expand the description of injury was essentially a unilateral decision by the Judge since no Petition to Review had been filed or litigated. The experts had testified on the Petition to Terminate and had addressed those specific diagnoses, but there was no new pleading asserting any change, addition or correction to the Notice of Compensation Payable.

The Employer appealed to the WCAB relying on Jeanes Hospital, which had held that a Claimant must file a Petition to Review Notice of Compensation Payable. The Appeal Board affirmed the WCJ’s decision citing §413(a) of the Workers’ Compensation Act, which provides:

A workers’ compensation judge may, at any time, review, modify, or set aside a notice of compensation payable…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.

77 P.S. §771 (emphasis added).

The Commonwealth Court affirmed the WCAB in Cinram Manufacturing and the Supreme Court accepted this appeal to address the conflict between the Jeanes Hospital decision and the above quoted statutory provisions.

The Supreme Court of Pennsylvania initially noted that the Jeanes Hospital decision had not focused on the distinction between corrective amendments and amendments addressing subsequently arising medical or psychiatric conditions related to the original injuries (also known as consequential conditions). The Court stated that, “Corrective amendments and amendments to address consequential conditions require independent consideration, since the Legislature treated them in separate and distinct passages of §413(a). Corrective amendments are covered by the first paragraph, codified at §771 of Title 77 of the Pennsylvania Statutes, 77 P.S. §771, which applies only in circumstances in which there was an inaccuracy in the identification of an existing injury.” Cinram Manufacturing v. WCAB (Hill), 975 A.2d at 580-81.

In Jeanes Hospital, the injuries sought to be added to the Notice of Compensation Payable included fibromyalgia and depression which were considered consequential or additional conditions and not injuries existing at the time of the Notice of Compensation Payable’s issuance. However, in Cinram, the accepted injury was a lumbar sprain and strain and it was sought to be expanded to include a pre-existing disc herniation with resulting nerve impingement. Essentially, this was considered a corrective amendment seeking to change the original description of the work injury.

The net result after Cinram is that a WCJ may at any time change the injury description on a Notice of Compensation Payable without a Petition to Review or Claim Petition pending in the exercise of his/her discretion pursuant to 77 P.S. §771 for “corrective amendments.” Each party must be given a reasonable period of notice and fair opportunity to respond to any allegation or change to the injury description as a corrective amendment. Also, the burden of proof for such corrective amendment or change to the original NCP rests with the Claimant and Claimant’s counsel to prove the existence of additional compensable injuries giving rise to the corrective amendment.

In a Concurring Opinion written by Justice Eakin in Cinram, he commented that a WCJ may correct a materially incorrect Notice of Compensation Payable. However, the WCJ should not be permitted to change the NCP in every circumstance. When the NCP does not correctly reflect the actual injury, a Claimant must file a Petition to Review Notice of Compensation Payable. However, in the Cinram case, Justice Eakin felt that the medical evidence showed that the Claimant’s disc herniation worsened after his work-related injury. Thus, “Amending the NCP to include aggravation of the Claimant’s disc herniation - - a diagnosis more accurately and fully reflecting Claimant’s original injury - - remedied the materially incorrect NCP.”

As a practical matter, the determination as to what is a corrective amendment and what is a consequential amendment and the requirement to file a Review Petition or not is still unclear given the complexity of medicine and work injuries. Claimant’s counsel will continue to file Petitions for Review simply to protect their client’s interests and most likely WCJs will avail themselves of Cinram to support a unilateral change to the injury description if a Petition is not filed. Employers need to plan ahead in the defense of claims and should address potential future injuries or progressions of injuries at the outset. Medical experts are able to distinguish between acute injuries, aggravations of degenerative conditions, new injuries and subsequent injuries based upon their review of medical records, diagnostic studies, and medical protocols. During the litigation of a Petition, it is essential to address all injuries and put them into their specific category: work-related, non-work-related, pre-existing, or aggravation. Simply limiting inquiries to only the injuries listed on the NCP could leave the Employer without evidentiary support on appeal from an adverse decision or a later challenge to expand the accepted injuries. It remains Claimant’s burden of proof but the Employer must anticipate potential expansion to the accepted injuries and be prepared to challenge them at all times regardless of whether or not a Petition is pending.