D. Marcusky v. WCAB (Williamsport Area SD)
56 C.D. 2017
| Pa. Commw. Ct. | Oct 13, 2017Background
- Claimant sustained a work injury on January 29, 2009, described as neck strain, later expanded to a right C6-7 herniated disk.
- May 14, 2009 surgery addressed the cervical disk; August 28, 2009 benefits were suspended after claimant returned to work with no income loss.
- The NCP initially described a neck strain/sprain; later the injury description was expanded to include a herniated disk.
- On February 9, 2016, more than six years after suspension, claimant filed a petition to modify and review, seeking specific loss disfigurement benefits for a neck scar.
- The WCJ awarded 30 weeks of disfigurement benefits on May 13, 2016, concluding the petition was timely within the 500-week period; the Board reversed, holding the 3-year limit applied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 3-year limit of §413(a) bars new disfigurement claim | Marcusky argues 500-week rule applies due to suspension. | Employer argues 3-year statute bars the petition for a distinct injury. | Three-year limit applied; petition time-barred. |
Key Cases Cited
- Dillinger v. Workers’ Compensation Appeal Board (Port Authority of Allegheny County), 40 A.3d 748 (Pa. Cmwlth. 2012) (three-year limit governs modification adding new injury)
- Fitzgibbons v. Workers’ Compensation Appeal Board (City of Philadelphia), 999 A.2d 659 (Pa. Cmwlth. 2010) (three-year limit applies to modification petitions; en banc)
- Kelley v. Workers’ Compensation Appeal Board (Standard Steel), 919 A.2d 321 (Pa. Cmwlth. 2007) (three-year limit for added compensable injuries)
- Fitzgibbons v. Workers’ Compensation Appeal Board (City of Philadelphia) (en banc), 999 A.2d 659 (Pa. Cmwlth. 2010) (limits on 500-week period; injury distinct from original injury)
- Dillinger v. Workers’ Compensation Appeal Board (Port Authority of Allegheny County), 40 A.3d 748 (Pa. Cmwlch. 2012) (claim for new injury barred if not timely filed)
- Faulkner Cadillac v. Workers’ Compensation Appeal Board (Tinari), 831 A.2d 1248 (Pa. Cmwlth. 2003) (progressive loss not applicable where scar is distinct injury)
- Romanowski v. Workers’ Compensation Appeal Board (Precision Coil Processing), 944 A.2d 127 (Pa. Cmwlth. 2008) (worsening of injury after expiration of periods; time-bar)