The first indication that the Commonwealth Court was contemplating a new approach came in a stern footnote that one of its panels issued in the 1998 case of AT&T v. Workers’ Compensation Appeal Board, 707 A.2d 649 (Pa. Commw. 1998). The AT&T case involved an employee, who, more than four years after his work injury was accepted as a “back strain” by way of NCP, filed a Review Petition seeking to amend the NCP to include a left/right hip necrosis condition. Observing in dicta that no entity other than the employer issuing the NCP has the power to amend a unilaterally issued NCP form, the court cautioned practitioners that where the injured worker seeks to expand the nature of the compensable injury, he or she must file a claim petition.
The impact of the court’s advisory comment was fairly minimal for three reasons: (1) the advice was dicta; (2) while offering the advice, the court conceded the traditional rule that in such procedural matters substance prevails over form and (3) one year later the Supreme Court seemed to lay to the Commonwealth Court’s advice to rest when it reaffirmed the use of the Review Petition as the preferred instrument for seeking an expansion of the compensable injury in Commercial Credit Claims.
For four years practitioners presumed that the Commonwealth Court had been disabused of its belief that a Claim Petition was the appropriate method of seeking an expansion of the accepted work injury. That presumption was firmly confuted in a series of rulings that found the court breathing new life into the advisory dicta issued in AT&T. See Zippo v. Workers’ Compensation Appeal Board, 792 A.2d 29 (Pa. Commw. 2002); Jeanes Hospital and Anderson v. Workers’ Compensation Appeal Board, 836 A.2d 636 (Pa. Commw. 2003)
The court’s four-year survey of the issue has yielded the following procedural regime: (1) where the subsequently alleged physical condition existed at the time of the original work incident, the claimant must file a review petition under Section 413(a) of the Act, alleging that the description of injury on the NCP constitutes a material mistake; (2) where the subsequently alleged physical condition is related to the original work incident contemplated by the NCP, but arose at a time subsequent to the work incident, and is not a “natural consequence” of the original injury, the claimant must file a claim petition within three years of the original work injury, see Westinghouse Electric Corporation/CBS v. Workers’ Compensation Appeal Board, 838 A.2d 831 (Pa. Commw. 2003), and (3) where the subsequently alleged physical condition arises as a “natural consequence” of the original work injury, the claimant may file a review petition seeking an amendment of NCP. See Campbell v. Workers’ Compensation Appeal Board, 705 A.2d 503 (Pa. Commw. 1998); Villanova University v. Workers’ Compensation Appeal Board, ___ A.2d ___ (Pa. Commw. 2004).
Apparently, a physical condition will be considered as having developed as a natural consequence of the original work injury where it arises from treatment prescribed for the accepted condition. See the Villanova University from earlier this year, in which the claimant develops a nephritic syndrome as a side effect of non-steroidal anti-inflammatory medication prescribed for work-related orthopedic shoulder injury.
Emotional Consequences
Moreover, the Commonwealth Court has deferred to Commercial Credit in the context of consequent emotional conditions, agreeing most recently that the injured worker is permitted to file a Review Petition where the subsequently alleged condition is of a psychological character. See the Westinghouse Electric case.
There is certainly logic attached to the notion that a condition that did not exist at the time of the original work incident should be treated differently than a condition that did exist at the time of injury, but was not accepted by NCP. It certainly makes sense, for example, that the employer who could not have known about the newly disclosed condition at the time the original work incident was reported, should be afforded the protection that “notice” and limitations periods normally afford in the context of an original claim, and should be afforded the right to defend the etiology of the newly discovered condition without having to rebut any presumption of compensability. Thus the rule emerging from AT&T, Zippo and Jeanes Hospital, requiring that the claimant file a de novo claim petition under such circumstances has some appeal.
On the other hand, an employer who from the outset of the claim, fails to properly record the extent of injury or who intentionally seeks to minimize the injury should not be afforded protection from the presumption of compensability that should prevail under such circumstances. Indeed, the potential for requiring the injured worker to file a Claim Petition in order to assure coverage for a condition that should have been acknowledged in the first place, or for a condition that some might view as a “natural consequence” of the original work injury, is a danger brought on by the rulings in AT&T, Zippo and Jeanes Hospital, particularly because it is not at all clear how to determine that a newly developed condition is or is not a “natural consequence” of the original work injury where the new condition is in fact related to the original work injury.
It would seem that the challenge the Supreme Court faces in Jeanes Hospital to protect employers from being ambushed years after the date of injury by a physical or psychological condition that bears no intrinsic connection to the original claim, while assuring that injured workers are not barred from seeking compensation for conditions that are so related, but were, for whatever reason, unforeseen from the outset of the claim.
In deciding Jeanes Hospital, the Court will have to determine whether the reasonable interests of employers are sufficiently important to sanction a regime that penalizes the employee where he or she develops an unusual work-related condition, not contemplated by the NCP more than three years after the precipitating work incident, thereby forcing the employee into a non-compensable disability, without medical coverage, despite having suffered a compensable work injury in the first place. In doing so, the court will probably have to define with greater specificity when a subsequent condition represents a “natural consequence” of the original work injury, and will have to determine whether a distinction should exist between the administration of a subsequent physical condition and a subsequent psychological condition.
One could see the Supreme Court taking a more liberal approach than the Commonwealth Court has taken. The justices might allow the use of the review petition in most instances for both consequent physical and psychological conditions, provided the Petition is filed within the three-year time frame set forth in Section 413 (a), but with the caveat that no presumption of compensability will prevail where the subsequent physical condition does not involve the same body part affected by the accepted work injury.
