Case Law Update | Walter v. WCAB (Pa. Cmwlth. November 24, 2015) | PA Work Injury

November 23, 2015

Claimant was employed by Evangelical Community Hospital (Employer) as an Emergency Medical Technician. On May 20, 2007, Claimant injured her left shoulder while lifting a patient. Employer issued a Notice of Compensation Payable (NCP) describing the work injury as a left shoulder “strain” and paying total disability benefits.  After various litigation including successful review petitions expanding injuries, WCJ granted the termination for tendonosis, AC joint synovitis and infraspinatus muscle atrophy, denied the termination for the remaining diagnoses and expanded the work injury to include left suprascapular neuropathy, from which Claimant has not fully recovered. Employer appealed the WCJ’s addition of left suprascapular neuropathy to the work injury description, arguing that it was error to do so in the absence of a review petition.  The Board agreed and reversed this part of the WCJ’s decision. The Board concluded that although a WCJ can expand the work injury in the absence of a review petition, it was inappropriate to do so here because Employer did not have notice that the injury description was at issue in the proceeding.  Claimant appealed to CC, arguing that Employer had sufficient notice of the potential amendment to her list of work injuries.

CC: In sum, Section 413(a) of the Act specifically authorizes the WCJ to amend the NCP during litigation of any petition where the evidence presented shows that the NCP is materially incorrect. Whether an employer has had a fair opportunity to contest the corrective amendment is determined on a case-by-case basis by looking at the totality of circumstances.  The employer must have the opportunity to contest a corrective amendment.  The July 2010 surgery was a suprascapular nerve decompression, a fact of which Employer was aware from a utilization review proceeding questioning the need for the decompression surgery. This procedure was done to relieve Claimant’s suprascapular neuropathy.

Holding: “Employer had adequate notice that Claimant considered chronic suprascapular neuropathy part of the work injury. The Board erred in concluding that the WCJ was not authorized to expand the description of the work injury to include that diagnosis and correct a material defect in the NCP.

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