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A workers' compensation judge's decision crediting medical testimony that included a description of injury beyond that described in the notice of compensation payable is binding in a subsequent termination petition.

July 1, 2010
Paz y Mino v. WCAB (Crime Prevention Association), No. 41 C.D. 2009; filed February 26, 2010; by Judge Cohn Jubelirer

In this case, the Commonwealth Court reinforced the recent Supreme Court decision in Cinram Manufacturing, Inc. v. WCAB (Hill), 975 A.2d 577 (Pa. 2009), that a workers' compensation judge may expand the scope of the accepted injury without a claim petition where there was an inaccuracy in the identification of injuries at the time the employer issued the notice of compensation payable. The court held that a workers' compensation judge's finding in a termination petition that implicitly expands the description of injury by crediting medical testimony as to additional injuries are binding in a subsequent termination petition. In that case, the employer had filed a termination petition, which was denied, and the workers' compensation judge's decision credited the employer's physician that the work injury aggravated the claimant's pre-existing spinal stenosis as well as L4-5 radiculopathy. In a subsequent termination petition, a different workers' compensation judge granted the petition without considering that the prior workers' compensation judge's decision had implicitly enlarged the description of injury to include the additional injuries. On appeal, the court ruled this was error and remanded the petition. Of note is that the court also held that a carrier could obtain an offset against future compensation owed for the amount of wage loss benefits paid when it did not know that the employer continued to pay the claimant's salary as to permit the claimant to receive both payments is unjust enrichment and an impermissible double recovery.

Case Law Alert - 3rd Qtr 2010

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