Thursday, September 13, 2007

Commonwealth Court Allows WCJ to Review Description of Injury Without Review Petition

In Cinram Mfg., Inc. & PMA Group v. WCAB (Hill), the Claimant had a herniated lumbar disc as early as 2000. When the Claimant had a work injury in March of 2004, the Employer described the injury as a lumbar strain. The Employer later filed a Termination Petition, alleging the lumbar strain had resolved.

The WCJ accepted the testimony of the Claimant’s expert that the March 2004 injury resulted in a significant change in the Claimant’s imaging study and symptoms. The WCJ concluded the Claimant’s herniated lumbar disc was either caused or materially aggravated by the March 2004 work injury, and denied the Termination Petition.

The Claimant did not file a review petition to expand the description of injury. The Employer argued on appeal that the Claimant’s expert’s opinion was incompetent. The Board and the Court rejected this argument.

The Claimant’s failure to file a review petition is harmless error so long as the WCJ places the burden on the Claimant to prove the nature of the injury beyond the insurer’s description. According to the WCJ’s credibility findings in this case, the record established the Claimant met his burden.

It is better practice, however, to file appropriate review petitions. These memorialize diagnoses for the medical experts to comment on, ensuring due process. The filing of a review petition also guides the WCJ to properly analyze the description of injury.

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