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Fitzgibbons v. Workers' Compensation Appeal Board

July 16, 2010

MARGARET MARY FITZGIBBONS, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (CITY OF PHILADELPHIA), RESPONDENT



The opinion of the court was delivered by: Judge Brobson

Argued: May 19, 2010

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE JOHNNY J. BUTLER, Judge.

OPINION

Petitioner Margaret Mary Fitzgibbons (Claimant) petitions for review of an order of the Pennsylvania Workers' Compensation Appeal Board (Board). The Board affirmed the decision of a Workers' Compensation Judge (WCJ), thereby dismissing Claimant's review and reinstatement petition. We affirm the Board's order.

The pertinent facts as found by the WCJ are summarized below. On May 4, 1997, Claimant, who was working as a recreation leader for the City of Philadelphia (Employer), sustained an injury in the course of her employment when a tent and stakes fell on her. A Notice of Compensation Payable (NCP) identified Claimant's injury as epicondylitis of the left elbow. In accordance with a July 24, 1998 supplemental agreement between the parties, Claimant's benefits were suspended as of July 13, 1998, based upon her return to work with no loss of earnings. Claimant filed a review/reinstatement petition on August 26, 2002, seeking review of the NCP to add "neck, low back, left hip, leg, [and] knee" to her identified work-related injuries. (Reproduced Record (R.R.) at 2a.) The WCJ issued an initial decision on August 5, 2003, dismissing Claimant's petition because she had not filed her petition within three years from the date of her injury.*fn1

Claimant appealed that determination to the Board, asserting that the WCJ had erred in applying the holdings in Jeanes Hospital v. Workers' Compensation Appeal Board (Hass), 819 A.2d 131 (Pa. Cmwlth. 2003), rev'd, 582 Pa. 405, 872 A.2d 159 (2005), and Zippo Manufacturing Company v. Workers' Compensation Appeal Board (Louser), 792 A.2d 29 (Pa. Cmwlth. 2002), to this case, because Claimant was not seeking to add later injuries, but to have the WCJ review the NCP for material mistakes.*fn2 In other words, Claimant asserted that the NCP was incorrect because, at the time of her original left elbow injury, she had sustained other contemporaneous work-related injuries that the NCP failed to reflect. The Board, without considering the basic legal question of whether the statute of limitations period applied to a petition to correct an NCP, vacated and remanded the WCJ's order. The Board directed the WCJ to make factual findings as to whether the new injuries Claimant sought to have added to the NCP arose consequentially from her work-related injuries or were injuries that existed at the time the NCP was issued (the latter of which may have rendered the NCP materially incorrect).

On remand, the WCJ conducted hearings and accepted additional evidence. Claimant's testimony indicated that, although the NCP only described an elbow injury, other parts of the left side of her body also sustained injuries at the time of her work-related injury, and, in fact, Employer's "Comp Services" treated those other areas of her body.

Ultimately, the WCJ issued a decision and order dated October 12, 2007, in which the WCJ summarized the testimony of Claimant and the medical testimony of her expert and Employer's expert. Without making any credibility determinations regarding the experts' testimony, the WCJ rendered the following factual findings relating to Claimant's injuries:

4. . . . Claimant testified she injured her head, leg, back, hip, elbow and leg. . . . In March 2000, Claimant began treatment with Dr. McPhilemy for leg pain. . . .

5. . . . Dr. McPhilemy first saw Claimant on April 23, 1998. He obtained a history from Claimant that she injured her neck, left shoulder, and left elbow in the May 4, 1997 incident. He next saw her on November 2, 2000 for left leg pain. He diagnosed [her] as having lumbar arthritis and degenerative joint disease of the left knee. He opined that the degenerative disease was aggravated by the May 4, 1997 incident. Claimant underwent left knee replacement surgery on June 15, 2001. He released Claimant to work on December 13, 2001.

6. . . . Dr. Mendez examined Claimant on November 20, 2006. He obtained a history from Claimant that she sustained a number of injuries on May 4, 1997. He reviewed records from Drs. Rubenstein, McPhilemy, Mandel, and Pharo. He noted Claimant had pre-existing knee arthritis. He opined Claimant had sustained a cervical sprain/strain, left trapezius muscle strain, and epicondylitis of the left elbow. She had fully recovered from those injuries.

(R.R. at 182-83a.)

The WCJ, without complying with the Board's directive to determine whether the NCP was incorrect at the time it was issued, purported to apply the holding in our Supreme Court's decision in Jeanes Hospital. The WCJ then concluded that he should address Claimant's review petition "as an original claim Petition," and that, even if he accepted Claimant's testimony as credible, "she was required to file her petition within three years of the injury . . . [and h]er failure to do so is fatal to her claim and her petition is time barred." (R.R. at 183a.)

Claimant again appealed to the Board, arguing that the WCJ had erred (1) by applying our Supreme Court's holding in Jeanes Hospital to her petition to review the NCP for a material mistake and (2) by failing to address the reinstatement aspects of her petition. The Board affirmed the WCJ's denial of Claimant's petition, noting that under Westinghouse Electric Corporation v. Workers' Compensation Appeal Board (Korach), 584 Pa. 411, 883 A.2d 579 (2005), "[w]hen an employee sustains additional injuries that result from the original harm, a petition for review should be filed within three years of the date of the most recent payment of compensation." (R.R. at 188a (emphasis added).) The Board then reasoned ...


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