M. Walter v. WCAB (Evangelical Community Hospital)
128 A.3d 367
| Pa. Commw. Ct. | 2015Background
- Claimant (Melissa Walter), an EMT, injured her left shoulder at work on May 20, 2007; Employer (Evangelical Community Hospital) issued an NCP for a left shoulder "strain" and paid benefits.
- Claimant underwent shoulder surgery in August 2007 and a suprascapular nerve decompression in July 2010 (Employer paid after utilization review).
- WCJ proceedings: in Feb. 2010 the WCJ amended the NCP to add multiple left-shoulder diagnoses and denied Employer’s initial termination petition as to most conditions.
- Employer later filed a termination petition based on an April 29, 2011 IME; medical testimony conflicted whether Claimant had fully recovered and whether suprascapular neuropathy was work-related.
- The WCJ granted termination as to tendonosis, AC joint synovitis, and infraspinatus atrophy, denied termination as to remaining diagnoses, and expanded the NCP to include left suprascapular neuropathy (a diagnosis from which Claimant had not recovered).
- The WCJ’s addition of suprascapular neuropathy was reversed by the Workers’ Compensation Appeal Board on notice/due-process grounds; the Commonwealth Court reversed the Board and reinstated the WCJ’s corrective amendment.
Issues
| Issue | Plaintiff's Argument (Walter) | Defendant's Argument (Employer) | Held |
|---|---|---|---|
| Whether a WCJ may add suprascapular neuropathy to the NCP without a review petition | WCJ may make a corrective amendment under §413(a) when evidence shows NCP is materially incorrect; Employer had notice that Claimant considered the neuropathy work-related | Amendment required a review petition because Employer lacked overt, timely notice and thus a fair opportunity to contest the new diagnosis | WCJ may correct NCP without a review petition where evidence shows the diagnosis was part of the original injury; here Employer had adequate notice and amendment was corrective — reversed Board |
| What constitutes adequate notice for a corrective amendment under due process | Notice can be implied from the record and experts’ testimony; totality of circumstances determines adequacy | Notice must be overt and given early (before Employer rests) so Employer can present contrary evidence | Adequate notice judged by totality of circumstances; Employer had notice via hearings, utilization review, and both experts’ testimony — notice sufficient |
| Whether suprascapular neuropathy was a corrective (part of original injury) or a consequential/new injury | Claimant: traction mechanism of 2007 injury caused neuropathy; treat as part of original injury | Employer: neuropathy not supported as part of original injury; evidence insufficient to characterize it as corrective | Substantial evidence (treating physician linking traction mechanism; IME recognizing traction mechanism) supports that neuropathy was part of original injury — amendment was corrective |
| Whether Employer was prejudiced by timing of evidence about neuropathy | Claimant: Employer’s experts addressed neuropathy; Employer never identified additional evidence it would have offered | Employer: late announcement prevented meaningful response and presentation of other evidence | No showing of prejudice; Employer’s witnesses had addressed neuropathy; Board erred to reverse on notice/prejudice grounds |
Key Cases Cited
- Cinram Mfg., Inc. v. Workers’ Comp. Appeal Bd., 975 A.2d 577 (Pa. 2009) (WCJ may correct NCP under §413(a) without a review petition; due process requires reasonable notice to employer)
- Krushauskas v. Workers’ Comp. Appeal Bd., 56 A.3d 64 (Pa. Cmwlth. 2012) (notice assessed by totality of circumstances; WCJ may grant relief when adverse party had effective notice of theory)
- Ross v. Workers’ Comp. Appeal Bd., 859 A.2d 856 (Pa. Cmwlth. 2004) (timing and raising of issues in hearings can bear on waiver and notice; factual showing of prejudice required)