Settlement + Future medical = Litigation

Many Pa Work Comp cases are settled via Compromise & Release for "indemnity" wage loss only, with the wc insurer remaining responsible for "reasonable and necessary" medical expenses, which are causally related to the work injury. This is an effective strategy to end the weekly payments and limit the future wage loss liability. Often the thought is that future medical expense liability may be addressed at a future date.

However, one must be careful to draft the C&R settlement agreements to precisely describe the wc insurer liability for future medical expense reimbursements. One recurring issue is the extent of this medical expense responsibility, "What is the accepted work injury?". For example, this problem may arise where the NCP describes a "lumbar sprain and strain" and claimant has received 2 surgical procedures for disc herniation.
[ see: February 1, 2013 post re: DePue and review of injury description in C&R docs]

Again, what is the accepted injury for future medical expense purposes?

What is the limit upon Claimant remedy for Review of the Description of Injury?

Schmitt v. WCAB (Dick Corporation & CNA Insurance Co.), No. 580 C.D. 2012, an unreported  memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Judge Leavitt on March 21, 2013 addressed these issues.

Factual & Procedural Background

1991 Injury, ironworker fell and sustained several injuries.
NCP described: "Fractures of left elbow, right wrist & right leg".
1994 Commutation Settlement via Supplemental Agreement (a predecessor to C&R settlement procedure) lump sum payment with future responsibility "for the payment of all future reasonable and necessary medical expenses causally related to the work injury...".

2007 Employee Petition for Review Medical Treatment and Petition to Review Compensation Benefits, for Employer refusal of medical expenses. Employee sought amendment of description of 1991 injury to include right knee injury.
[Employee also sought amendment to include left knee, left elbow, low back and psychological injury. Left knee and psych were withdrawn. Did not litigate low back. Employer agreed to left elbow.]

Employer paid all medical until 1995 denial of right knee surgery and left elbow surgery. Health insurer paid, Employee did not pursue. There was a 1996 right knee "re-injury" with another employer.

Employee Medical Evidence
Dr. Burke could not state unequivocally, that current right knee pain was solely due to 1991, in light of history of several injuries.
Dr. Klatt did total knee replacement surgery revision. He could not state right knee condition was due to 1991 injury.

WCJ Award
Employee established right knee condition was due to 1991 injury. (with that medical evidence!?)
Dr. Burke stated employee first complained of knee symptoms in 1991.

WCJ "interpreted "right leg" injury to include a "knee" injury. So.... although a review of the NCP would not be allowed more than 3 years after the most recent payment, that Section 413(a) limitation did not apply because the "knee" was already included in the "leg" description of injury.

WCAB Reversed
Employee Review petition was barred by the statute of limitations in Section 413 (a).
The NCP and Settlement Supplemental Agreement described a fracture of the right leg, not a right knee fracture. Actually it was a small fracture to the right ankle, not the knee!
The final Commutation settlement payment was in 1994, so the 2007 Review Petition to amend the description of injury was more than 3 years after the last wc payment.
The Review Petition was barred by the Statute of Limitations.

Commonwealth Court Decision

WCAB was correct, in reversal of the award and Review Petition.
Employer is liable for all work related medical expenses which are reasonable and necessary treatment. See: Section 306(f.1)(1)(i); 77 P.S. 531(1)(i).

However, here the work injury description did not mention any knee injury.
Even if we assume that "leg" injury includes any "knee" injury, the NCP and Supplemental Agreement describe fractures, not the type of joint injury employee suffered in his right knee.

Section 413(a) allows for the modification of the NCP, if it is proven incorrect, in any material aspect.
No NCP or Agreement shall be reviewed of modified unless the petition is file within 3 years of the most recent payment. Citing Fitzgibbons v. WCAB (City of Philadelphia) (Pa. Cmwlth. 2010).

As Employee's right knee injury was not encompassed within the accepted work injury, the only way to require the Employer to pay for treatments to the right knee would be to expand or modify the NCP. Modification of the accepted injury, more than 3 years after the most recent payment is barred.
[slip opinion page 8].


Practice Pointers:

1. Description of the accepted work injury is one of the most significant decisions in the claims handling process. If in doubt regarding the correct, most accurate description, one should review the medical records and seek advice.

2. When the initial description of the injury becomes inaccurate, via further medical testing or subsequent surgical care, consider voluntary amendment of the NCP description. This may avoid litigation and
"control" the extent of description, compared to placing this decision in the hands of a WCJ.

3. At the time of settlement, take care to correctly describe the extent of injury accepted. If a condition was asserted by the worker and not agreed upon by the insurer, document that status! This becomes a significant issue, where there is a promise to compensation future medical expenses.