In what has become an interesting if somewhat inexplicable trend at the Pennsylvania Commonwealth Court, the court issued a nonprecedential (unreported) case. The reason this particular case, Benyo v. Workers' Compensation Appeal Board (Hazle Township Supervisors), No. 1694 C.D. 2018, was unreported is most likely the fact that the law is somewhat settled, even if the appellant offered a novel argument, seeking to expand existing case law. Benyo is an example of why it is often worthwhile to review nonprecedential cases issued by the Commonwealth Court, since they often nicely summarize the status of the law on any particular issue. Nonprecedential cases are persuasive authority that may come in handy.

In Benyo, the court rendered a decision dealing with the three-year statute of limitations found in Section 413 of the act for a claimant seeking to add injuries to those accepted in a medical-only notice of compensation payable. I dare say that this issue arises constantly, and Benyo serves as a stark reminder that a review petition can very well be time-barred under the three-year statute of limitations in most instances. It is imperative for the claimant's practitioner to diary the statute, even if there is an "accepted" claim to amend the description of injury timely, if warranted.

In Benyo, the claimant was injured on the job in October 2011. He did not miss any time from work due to his injuries, but instead worked in a modified duty position with no wage loss. For reasons not revealed in the decision, in March 2015, four years after the work accident, the employer issued a medical-only NCP recognizing that the claimant had sustained an October 2011 work-related injury defined as "cervical, thoracic and lumbar strains." About a year and a half later, the employer filed a termination petition, alleging full recovery as of June 2016. In December 2016, more than five years after the date of injury, the claimant filed a petition to review the description of injury, seeking to add "head and spinal injuries" to the accepted injury.

The workers' compensation Judge denied the termination petition and granted the review petition in part, amending the accepted injury to include a "head injury with headaches and concussive symptoms." The Workers' Compensation Appeal Board reversed the WCJ's decision to the extent that it granted the portion of the review petition that added the head to the description of injury and also affirmed the WCJ's denial of the termination petition.

The claimant petitioned for review of the board's decision to the Commonwealth Court, which framed the issue as "whether the board erred in determining that the claimant's review petition seeking to correct the injury description was time-barred under the three-year statute of limitations found in Section 413 of the act."

The Commonwealth Court begins its review by appealing to its decision in Fitzgibbons v. Workers' Compensation Appeal Board (Philadelphia), 999 A.2d 659, 663-64 (Pa. Commw. 2010), which noted that where a party seeks to correct an NCP to add injuries that existed at the time of issuance of the notice, but were not listed on it, the first paragraph of Section 413 applies. Essentially, under Fitzgibbons, an injured worker has three years from the injury date or the last date of payment of compensation to file a petition to review the description of injury. This holding expanded the 2007 Supreme Court case of Cinram Manufacturing v. Workers' Compensation Appeal Board (Hill), which held that there are two instances where an injured worker can attempt to amend an NCP: the "corrective amendment," which is a missing injury present at the time the NCP was filed, and the "consequential" amendment, which is when a new condition arises after the date of injury. In Fitzgibbons, the court concluded that a reasonable interpretation of the limitation period in Section 413 was that it applied to both paragraphs of Section 413. The Benyo court quoted the first paragraph of Section 413 as follows:

"A WCJ may, at any time, review and modify or set aside an NCP and 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 WCJ, if  it be  proved that such NCP or agreement was in any material respect incorrect."

Since in the Benyo case, there was no payment of compensation, keeping in mind that the payment of medical costs does not constitute compensation for purposes of tolling the three-year statute of limitations, the date-of-injury became the controlling date from which the statute began to run. Notwithstanding the claimant's agreement as to the status of the law, he made the novel argument that the employer's termination petition should serve as a "de facto expansion" of the three-year statute of limitations, which he would acknowledge had otherwise expired.

The claimant in Benyo turned to the 2011 Commonwealth Court case of Pizza Hut v. Workers' Compensation Appeal Board (Mahalick), 11 A.3d 1067, 1070 (Pa. Commw. 2011) in support of his argument, where the claimant also sought to expand the description of injury more than three years after the operative date. The distinction in Mahalick, however, was that the employer had filed its termination petition within the three-year period. The employer having filed its termination petition within the relevant time period was the distinguishing factor that enabled the claimant there to not be time barred. In Benyo, none of the petitions were filed until long after the statute had run.

The court was silent as to what effect the employer's actions in actually accepting the claim beyond the three-year statute period had on the claimant's efforts to expand the recently accepted injury. One would think that an employer opening itself up to liability on a claim that had already not been properly recognized prior to the statute having run should be estopped from disputing that the description of injury could be further challenged. The court simply stated that it "rejected the claimant's invitation to expand the holding in Mahalick to provide that a claimant may seek amendment of the description of a work injury when a termination petition is pending irrespective of whether that petition was filed within the three-year statute  of  limitations." While it is beyond dispute that the payment of medical bills does not toll a statute, should not the acceptance of a claim begin a new three-year period?

There are certainly many reasons not to expand a description of injury, especially if the carrier is paying all of the bills for a more significant injury or a different body part. However, let Benyo be a warning that if you are approaching the three-year statutory period on any case where the description of injury is under-recognized (which occurs in almost every case) you should file a review petition, even in corrective amendment cases, to preserve the statute. The last thing a claimant (and his attorney's liability carrier) needs is to find out his herniated disc will never be accepted because the time for challenging his "lumbar strain" has expired.

Christian Petrucci, of the Law Offices of Christian Petrucci, concentrates his practice in the areas of workers' compensation and Social Security disability. He also counsels injured workers in matters involving employment discrimination and unemployment compensation benefits.