|August 2, 2013|
Previously published on August 1, 2013
In the case of Whitesell v. WCAB (Staples, Inc.), the Commonwealth Court of Pennsylvania has upheld the Workers' Compensation Judge's and the Appeal Board's rulings that the 300-week period of limitation on a fatal claim set forth in Section 306 (c) (1) of the Act cannot be "set aside" based on the theories that the originally accepted injury was amended years after its occurrence or that a consequential "insidious" injury caused the death.
In Whitesell, the claimant/decedent sustained a lumbar strain injury in 2003, which was accepted by the insurer. In 2006, the nature of the injury was amended to include a disc "disruption" in the lumbar spine with related surgery. In 2011, the claimant/ decedent died as a result of "mixed drug toxicity," and the widower filed a fatal claim, alleging the death was due to work-related injury medication.
The Workers' Compensation Judge and the Appeal Board both held that the fatal claim time limitation cannot be extended due to an amendment to the injury description that was made years after the original injury occurred. The Commonwealth Court affirmed and effectively closed the door on the claimant's attempt to toll or extend the limitations period set forth in Section 306 (c) (1) of the Act through the oft-cited argument that the nature of the injury was amended or changed years after its acceptance. The original injury date controls for limitation purposes.
This will help employers in Pennsylvania litigate these most difficult fatal claim petitions.