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Review Petition, More Than Three Years
After Commutation, Payment Is Time Barred
A claim petition filed in May of 2002 alleges the loss of use of the right arm for all practical intents and purposes as a complication of the work-related back surgery. Defendant admitted the compensability of the right arm injury. There was no prior petition for review of the Notice of Compensation Payable, the claimant made that request at the initial claim petition hearing. The workers’ compensation judge awarded loss of use benefits relying upon claimant’s "discovery rule" argument. He argued that the statute of limitations did not commence until he "knew" of the work relationship of loss of use, which occurred via his treating physician report in December of 2002 (after the date of the filing of the claim petition?). The Commonwealth Court rejected claimant’s "discovery rule" argument as this argument has been rejected in similar injury claims, including aggravation of arthritis conditions. (See: Young v. WCAB (J&L Steel), (a FKWZ&G case).
Claimant’s testimony and his medical evidence demonstrated that the loss of use was a direct result of the original work injury, or more specifically, the medical treatment from the original injury. Claimant’s testimony suggested that he was immediately aware of the right arm symptoms after his surgery. This was not a situation where his symptoms began later or progressed over time. In hearing loss and progressive loss of sight claims, the Court has considered a "discovery rule." In this case, there were not two separate dates of injury, claimant’s right arm symptoms arose from the original injury. Claimant’s argument for the establishment of two separate injury dates was rejected. The Commonwealth Court referenced the Supreme Court decision in Westinghouse Electric Corporation/CBS v. WCAB (Korach), citing Jeanes Hospital that a claim petition pursuant to §315 was erroneous where the claimant was alleging an additional condition arose as a direct result of his work-related injury. Section 413(a) of the Act provides the appropriate procedure to amend a Notice of Compensation Payable to add additional related injuries.
Claimant’s remedies were distinguished from a worker filing a petition for loss of use within 500 weeks of the suspension of benefits via a Supplemental Agreement when he returned to work. In that situation, the Claimant can file a petition for specific loss benefits. The Court reasoned "the statute of limitations in §413(a) is like a countdown timer. In a commutation, the countdown begins immediately after the payment. In the suspension situation, the countdown is ‘re-set’ each week." Accordingly, the §413(a) statute of limitations requires filing of a review petition within 3 years of the last compensation payment.