Dillinger v. Workers' Compensation Appeal Board
2012 Pa. Commw. LEXIS 78
| Pa. Commw. Ct. | 2012Background
- Claimant sustained a November 15, 2003 work injury as a bus driver for Employer; NTCP described injury as a left shoulder strain from an assault.
- NTCP and subsequent supplemental/revised agreements suspended or modified benefits; final receipt and a 2004 supplemental agreement suspended benefits as of February 20, 2004.
- Claimant alleged a recurrence on December 3, 2005; employer denied recurrence on March 17, 2006.
- Claimant filed petitions on March 22, 2007 seeking review of compensation and reinstate benefits; November 13, 2007 filed a claim petition for aggravation of PTSD.
- WCJ found PTSD present and related to the original injury, and that it should have been listed from the outset; WCAB reversed as untimely under Fitzgibbons.
- WCAB denied Claimant’s cross-appeal on whether PTSD existed from the original injury date; court remands for additional evidence on abnormal working conditions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of amending NCP to include PTSD as original injury | Claimant argues Fitzgibbons is not controlling and PTSD should be added as original injury. | Fitzgibbons controls; petition filed late within three-year limit after suspension. | Untimely under Fitzgibbons; not allowed to amend as original injury. |
| Effect of Pizza Hut and reinstatement petition on NTCP review | Pizza Hut allows review/to amend despite timing if reinstatement petition pending. | Pizza Hut does not apply because last payment/suspension context does not cover PTSD within 500 weeks. | Pizza Hut does not permit expanding PTSD as original injury in this context. |
| Equitable estoppel to toll statute of limitations | Employer’s treatment and payments for PTSD misled Claimant into believing work-related. | Equitable estoppel requires fraud or concealment; not alleged. | Equitable estoppel not applicable. |
| Cross-appeal on date PTSD existed from original injury | PTSD existed from the original injury date and is compensable. | WCAB correctly denied; pre-existing condition context analyzed. | WCAB erred; PTSD existed from original injury; remand on aggravin issue. |
| Remand for abnormal working conditions and evidence on psychic injury | Need findings on whether exposure to abnormal working conditions caused PTSD aggravation. | Evidence incomplete; court should remand for additional evidence. | Remand to obtain additional evidence and findings on abnormal working conditions for the aggravation claim. |
Key Cases Cited
- Cinram Manufacturing, Inc. v. Workers’ Compensation Appeal Board (Hill), 601 Pa. 524 (Pa. 2009) (permits correction of material mistakes in NCP during pending petition when a termination petition exists)
- Fitzgibbons v. Workers’ Compensation Appeal Board (City of Philadelphia), 999 A.2d 659 (Pa.Cmwlth. 2010) (three-year limit applies to adding new injuries under 413(1) and 413(2))
- Pizza Hut, Inc. v. Workers' Compensation Appeal Board (Mahalick), 11 A.3d 1067 (Pa.Cmwlth. 2011) (allows correction of NCP without a separate review petition when conditions permit)
- Rag (Cyprus) Emerald Resources, L.P. v. Workers’ Compensation Appeal Board (Hopton), 590 Pa. 413 (Pa. 2007) (aggravation principle: pre-existing injury can be aggravated to disability regardless of relation)
- Westinghouse Electric Corporation/CBS v. Workers’ Compensation Appeal Board (Korach), 584 Pa. 411 (Pa. 2005) (equitable estoppel requires fraud or concealment; silence alone insufficient)
- Kochanowicz v. Pennsylvania Liquor Control Board, 29 A.3d 105 (Pa.Cmwlth. 2011) (psychic injury requires proof of abnormal working conditions and not mere reaction)
- B & T Trucking v. Workers’ Compensation Appeal Board (Paull), 815 A.2d 1167 (Pa.Cmwlth. 2003) (remand for additional evidence when salient issues were neglected)