Claimant Cannot Petition for Modification or Reinstatement More Than Three Years After Last Date of Payment, Even When a Specific Loss is Discovered

In R. Seekford v. WCAB (R.P.M. Erectors), the Court analyzed whether the Claimant could file a claim for specific loss of his arm almost six years after the last payment of compensation via receipt of a commuted sum. The Claimant had sustained nerve damage to his arm after inadequate padding of his upper extremities during low back surgery seven and one-half years earlier. The Employer admitted an injury to the arm, but asserted the Claimant’s petition was time-barred, as it was not filed within three years of the last date of payment.

The Court held the Claimant’s Claim Petition must be treated as a Petition for Review. An injury that arose as the proximate result of surgery for the accepted injury is an injury that arose out of the accepted injury. Accordingly, the statute of limitations of three years from the last date of payment applies.

The Court then rejected the Claimant’s argument that he only discovered the specific loss when his doctor rendered an opinion of specific loss less than two years prior to the date of filing. The Court would not analogize the specific loss in this case to a specific loss of sight or hearing because the Claimant testified he knew there was a severe problem as soon as he woke up from the original surgery. The Court stated a Claimant who commutes his benefits runs the risk of finding himself beyond the statute of limitations when the Claimant’s injury worsens.