846 A.2d 793

MEENAN OIL COMPANY, L.P., Petitioner v. WORKERS’ COMPENSATION APPEAL BOARD (POWNALL), Respondent.

Commonwealth Court of Pennsylvania.

Submitted on Briefs Jan. 30, 2004.

Decided April 13, 2004.

*794Martin J. Fallon, Jr., Philadelphia, for petitioner.

Michael N. Silver, Upper Darby, for respondent.

BEFORE: FRIEDMAN, Judge, and LEADBETTER, Judge, and KELLEY, Senior Judge.

OPINION BY

Judge FRIEDMAN.

Meenan Oil Company, L.P., (Employer) petitions for review of the September 5, 2003, order of the Workers’ Compensation Appeal Board (WCAB), which affirmed the decision of a workers’ compensation judge (WCJ) to grant three petitions filed by Richard Pownall (Claimant).1 In this case, we are asked to determine whether the WCJ, pursuant to section 413(a) of the Workers’ Compensation Act2 (Act), properly amended a notice of compensation payable (NCP) to correct the date of injury and to include additional injuries.

The relevant facts are as follows. Claimant worked for Employer in a seasonal job, delivering fuel oil to customers’ homes.3 On February 3, 1996, while making an oil delivery, Claimant fell down a flight of steps and injured his lower back. Claimant immediately reported the incident to his supervisor, and the incident also was reported to Travelers Insurance (Travelers), Employer’s workers’ compensation carrier. Despite considerable problems with his back, Claimant finished the day’s work. Two days after his fall, Claimant’s neck started to hurt, and, about a month later, he also began to have pain in his thumbs, palms and wrists. Claimant took the following Monday off due to his back pain, and, after several days, he called his supervisor and told him that he could no longer work due to pain; however, after Employer requested that he find some way to continue working, Claimant got his son to assist him. Claimant was able to continue working through April 1, 1996, the end of the season.

*795Claimant initially sought treatment with a chiropractor for back and neck pain, and he asked one of Employer’s office workers to arrange for the bills to be paid through workers’ compensation. The claim for the February 3, 1996, injury was reported to Travelers in April of 1996, and no question was raised as to its validity. Travelers reimbursed Claimant for medical expenses incurred from February 8, 1996, but it did not issue an NCP because it considered this to be a medical only claim, with no lost time or disability.

On July 26, 1996, one of Claimant’s treating physicians made findings indicative of trigger phenomenon, possible carpal tunnel syndrome, cervical and lumbar strain and lumbar radiculopathy. Claimant denied having problems with his hands before the fall on February 3, 1996. In August of 1996, Travelers assigned Claimant a rehabilitation nurse, who filed a report with Travelers reflecting a diagnosis of lumbosacral strain and sprain and bilateral trigger thumb. The nurse took Claimant to an independent medical examiner (IME), Thomas Cain, M.D., who issued an IME report indicating an injury date of February 3, 1996, with progressive hand problems beginning a month later. The nurse also recommended pool therapy for Claimant’s neck and back, and Travelers provided this therapy to Claimant by paying for a two-year membership at the YMCA.

On October 3, 1996, Claimant was diagnosed with “trigger thumb,” and he underwent surgery on his left thumb in November of 1996. Claimant received temporary total disability benefits for the period from October 3, 1996, through December 8, 1996, when he returned to work and benefits were suspended. At the time, no NCP had been issued. These payments were formally recorded in a supplemental agreement entered into a year later.

On March 27, 1997, Employer issued an NCP accepting responsibility for a work injury occurring on April 1, 1996, and described only as “bilateral trigger fingers.”4 According to Travelers’ claims adjuster Tavita Cutiva, Employer used the date of Claimant’s last day of seasonal work as the date of injury because Employer characterized Claimant’s thumb condition as a cumulative trauma injury.5 Meanwhile, Claimant continued to undergo treatment for various cervical and lumbar problems, bilateral strain tenosynovitis, and bilateral carpal tunnel syndrome, all of which his physicians related to the incident of February 3,1996.

On August 3, 1998, Employer issued a Notice of Compensation Denial (NCD) which referenced a February 3, 1996 injury.6 In response, on October 16, 1998, Claimant filed a Petition to Review Medical Treatment and/or Billing and to Reinstate Benefits (Reinstatement Petition), alleging that Employer refused to com*796pensate Claimant for partial disability and to pay for reasonable and necessary medical treatment related to his February 1996 work injuries.

On December 6, 1998, Claimant was re-injured at work when he was called upon to lift and carry a forty-pound bag of oil dry. Claimant has not worked since that time because of pain in his back, leg, neck, hands and wrists. The next day, Claimant reported this second incident to his supervisor as a recurrence of the February 3, 1996, injury7 and sought further medical treatment. On April 2, 1999, Claimant filed a Claim Petition seeking benefits for disability resulting from the December 6, 1998, incident.

On January 12, 2000, Claimant filed a petition to review the NCP (Review Petition) pursuant to section 413(a) of the Act, alleging that the April 1, 1996, injury date on the NCP was incorrect and should be amended to reflect an injury date of February 3, 1996, “as evidenced by Employer’s/Insurer’s own records.” (WCJ’s Findings of Fact, No. 4, R.R. at 14a.) Claimant also alleged that the description of his injuries in the NCP should be amended to include neck and back injuries and bilateral carpal tunnel syndrome. Employer filed an Answer denying the allegations in each of Claimant’s Petitions, and the Petitions were consolidated for hearings before the WCJ.

The WCJ accepted the testimony of Claimant and Claimant’s lay witnesses and medical experts as credible and persuasive and rejected the conflicting testimony of Employer’s lay and medical witnesses. Based on those credibility determinations, the WCJ specifically found that no injury occurred on April 1, 1996; rather, Claimant was injured when he fell down a flight of steps at work on February 3,1996. The WCJ also found that Claimant’s thumb injury and the development of Claimant’s carpal tunnel syndrome were a direct result of the traumatic incident on February 3, 1996, rather than cumulative trauma. Finally, the WCJ found that Claimant’s December 1998 work injury aggravated his injuries of February 3,1996.

The WCJ concluded that Claimant met his burden of proving that he was injured at work on February 3, 1996, and sustained injuries to his neck, right arm and right shoulder, along with back pain with radiation into the right leg and foot and bilateral carpal tunnel syndrome. The WCJ also concluded that Claimant met his burden of establishing that his February 3, 1996, injuries, particularly his back and neck injuries, recurred because of the lifting incident on December 6, 1998. Accordingly, the WCJ granted Claimant’s Review Petition and ordered that the NCP be amended to reflect the February 3, 1996, injury date and to include the additional injuries. The WCJ also granted Claimant’s Reinstatement Petition. Finally, the WCJ granted Claimant’s “Claim” Petition; the WCJ reinstated benefits as of December 6, 1998, and awarded Claimant total disability benefits as of December 7, 1998, and ongoing based upon a recurrence of Claimant’s disability as a result of his December 6, 1998, work injury. Employer appealed to the WCAB, which affirmed the WCJ’s determination.

On appeal to this court,8 Employer does not challenge any of the WCJ’s Findings of Fact; rather, Employer argues that the WCJ exceeded her authority in granting Claimant’s Review Petition and *797awarding compensation to Claimant for a February 3, 1996, injury under section 413(a) of the Act. Employer notes that there was no existing NCP for an injury on that date, and, in fact, Employer had issued an NCD for a February 3, 1996, injury.9 Employer maintains that, absent an acceptance of liability by the filing of an NCP, Claimant had to establish the February 3, 1996, injury as an original claim under section 410 of the Act.10 Employer contends that Claimant’s Review Petition is, in reality, a claim petition, and, as such, the Petition, filed on January 12, 2000, is barred by the three-year statute of limitations in section 315 of the Act.11 Employer characterizes Claimant’s Review Petition as a subterfuge designed to circumvent the statute of limitations. We disagree with Employer; indeed, on its face, Employer’s argument conflicts with the only credible evidence of record with respect to Claimant’s injuries.

Under section 413(a) of the Act, the WCJ has the power, at any time, to review and modify or set aside an NCP, if it be proved that the NCP was in any way materially incorrect. 77 P.S. § 771. (Emphasis added.) The WCJ may modify an NCP under this provision only if a material mistake was made at the time the NCP was issued. Borough of Honesdale v. Workmen’s Compensation Appeal Board (Martin), 659 A.2d 70 (Pa.Cmwlth.), appeal denied, 543 Pa. 698, 670 A.2d 144 (1995).

Here, the credible testimony of Claimant and his medical experts provides overwhelming support for the WCJ’s finding that Claimant sustained a work-related injury on February 3, 1996, and did not sustain any injury on April 1, 1996. Importantly, Employer never denies the fact that Claimant fell at work on February 3, 1996, and Employer acknowledges that the April 1, 1996, date of injury only reflected the fact that Employer treated Claimant’s trigger thumbs as a cumulative injury. However, the record establishes that Claimant’s thumb injury was caused directly by the trauma of Claimant’s February 3, 1996, fall, not repetitive use.12 Because Claimant’s evidence proves that Claimant’s injury to his thumbs occurred on February 3,1996, the WCJ was empowered by section 413(a) to correct the injury date on the NCP. Further, the record supports the finding that Claimant sustained back, neck and various other injuries, including carpal tunnel syndrome, as *798a result of the February 3, 1996, injury, and so the WCJ also was empowered by section 413(a) to add these additional injuries to the existing NCP. Thus, Claimant was not required to file a claim petition with respect to his February 3, 1996, injury.13

Given our ruling with respect to Claimant’s Review Petition, we necessarily reject Employer’s arguments with respect to Claimant’s two remaining Petitions, which are predicated on the assertion that Employer had not accepted liability for a February 3,1996, injury.14

Accordingly, we affirm.

ORDER

AND NOW, this 13th day of April, 2004, the order of the Workers’ Compensation Appeal Board, dated September 5, 2003, is hereby affirmed.

Meenan Oil Co. v. Workers’ Compensation Appeal Board
846 A.2d 793

Case Details

Name
Meenan Oil Co. v. Workers’ Compensation Appeal Board
Decision Date
Apr 13, 2004
Citations

846 A.2d 793

Jurisdiction
Pennsylvania

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