Although the claimant's petition to review was not filed within 3 years of the last payment of compensation, the employer's petition to terminate benefits was. Therefore, the workers' compensation judge did not err in expanding the claimant's injuries.

The claimant sustained a work-related injury on January 31, 2003. Thereafter, the claimant received workers' compensation benefits pursuant to a notice of compensation payable (NCP) issued by the employer. The NCP described the work injury as a strain/sprain of the lower back. The claimant's benefits were later suspended as of March 26, 2003, based on a return to work at that time. The employer then filed a petition to terminate the claimant's benefits. The claimant filed a Review Petition on December 16, 2006, seeking to amend the description of the work injury to include "lower back bulging discs and facet arthropathy." The workers' compensation judge granted the claimant's Review Petition, and the Appeal Board affirmed. The employer then appealed to the Commonwealth Court, arguing that the claimant's Review Petition was time barred under Section 413 of the Act and the case of Fitzgibbons v. WCAB (City of Philadelphia), 999 A.2d 659 (Pa. Cmwlth. 2010) since it was not filed within three years of the last payment of compensation. The Commonwealth Court, however, rejected the employer's argument and upheld the decisions issued below. The court held that, although the claimant did not file her petition until December 16, 2006, more than three years from the most recent payment of compensation, the employer filed the termination petition within the three-year period under §413 and that under the Supreme Court's holding in Cinram Manufacturing, Inc. v. WCAB (Hill), 601 Pa. 524, 975 A.2d 577 (2009), a workers' compensation judge may correct an NCP during a termination proceeding under §413 of the Act without the claimant filing a separate petition to support a corrective amendment.

Case Law Alert, 2nd Qtr 2011