Commonwealth Court Affirms Workers’ Compensation Judges’ Authority to Amend Injury Description Under Section 413(a) Despite Initial Notice of Compensation Payable Limitation

The claimant worked as a food equipment delivery person and was injured in a motor vehicle accident while on his way home from Maryland. At the time of the injury, the employer was insured by both Berkshire and SWIF. After the accident, SWIF issued a medical-only Notice of Compensation Payable (NCP), indicating there was no physical injury. Two weeks later, Berkshire issued a Notice of Temporary Compensation Payable (NTCP) in the nature of a “skull contusion.” 

The claimant ultimately had back surgery in June 2021, and Berkshire began paying him wage loss benefits after he started losing time from work following the surgery. Berkshire then issued an amended NCP, which still read “skull contusion.” Meanwhile, SWIF paid medical expenses incurred by the claimant, including the ambulance, emergency room and prescription bills.

Berkshire filed Review, Modification and Joinder Petitions, seeking to amend the description of injury to include the left shoulder, head, neck, and spine and to have SWIF reimburse them 50% of the benefits they paid, as well as contribute 50% of future benefit payments. Later, the claimant entered into separate Compromise & Release Agreements with both insurers, agreeing to preserve the adjudication of Berkshire’s petitions. 

The workers’ compensation judge granted the petitions. SWIF appealed to the Workers’ Compensation Appeal Board, which affirmed. SWIF then appealed to the Commonwealth Court, arguing mainly that a workers’ compensation judge may modify a NCP only if a material mistake of fact was made at the time it was issued. SWIF also maintained that, because Berkshire only accepted liability for a skull contusion, the judge was obligated to explain how the amended NCP was materially incorrect at the time it was issued. 

The Commonwealth Court rejected SWIF’s arguments and affirmed the decisions below. The court noted that, essentially, Section 413(a) of the Act allows a workers’ compensation judge to review, modify or set aside a NCP “at any time” within the context of a petition. The first paragraph applies when a claimant seeks to correct a material mistake or inaccuracy as to the injury description, and the second applies when a claimant experiences an increase, decrease, recurrence or cessation of disability. According to the court, a workers’ compensation judge has the authority to scrutinize the description of injury as it evolves over time. The court noted that during the course of these proceedings, Berkshire proved, through the credited testimony of their expert, the work injury included an aggravation of pre-existing degenerative changes and the work-relatedness of the back surgery. Thus, according to the court, the workers’ compensation judge found it necessary to amend the initial injury description to include those injuries, as permissible under Section 413(a) of the Act. 

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