• 3-Year Limit to Correct NCP Bars Adding PTSD as Original Work Injury. Equitable Estoppel Doesn't Toll Statute Of Limitations w/o Proof of Fraud/Misrepresentation. May Assert Aggravation of Pre-Existing PTSD w/Proof Abnormal Working Condition Caused Injury.
  • July 7, 2012 | Authors: G. Jay Habas; Francis X. Wickersham
  • Law Firms: Marshall Dennehey Warner Coleman & Goggin, P.C. - Erie Office ; Marshall Dennehey Warner Coleman & Goggin, P.C. - King Of Prussia Office
  • Dillinger v. WCAB (Port Authority of Allegheny County); No. 770 C.D. 2011 (Pa. Commw. filed March 1, 2012); opinion by Senior Judge Freedman

    The claimant sustained a left shoulder strain when assaulted by a passenger on a port authority bus she drove for the employer. The claimant treated with a social worker for emotional complaints as a result of the assault, as well as continuing issues with abusive passengers. The employer paid for this treatment but did not acknowledge a mental health injury. The claimant ultimately signed a final receipt and supplemental agreement suspending her benefits. More than three years later, she filed a petition to review compensation benefits, alleging she suffered PTSD due to her original work injury. A claim petition was also filed, alleging an aggravation of PTSD due to continued interaction with the public as a bus driver for the employer.

    The judge found the claimant established that she suffered PTSD as a result of her original work injury, which was exacerbated by her ongoing job duties. In particular, the judge acknowledged the claimant's fear that the assailant from the original incident had now been released from prison and had made threats against her. The judge concluded PTSD existed from the outset of the work injury and should have been listed on the NCP. The alternative claim petition was dismissed as moot.

    On appeal to the Appeal Board, the judge's decision was reversed on the basis that the review petition was untimely, having been filed outside the three-year statute of limitations. The Commonwealth Court affirmed the decision of the Appeal Board, finding that under Fitzgibbons v. WCAB, 999 A.2d 659 (Pa. Cmwlth. 2011), a party must file a petition to correct the NCP within three years of the most recent payment of compensation. Since the claimant had clearly failed to file the review petition within the indicated time period, the review petition was untimely. The court also rejected the argument that, since the claimant had simultaneously filed a reinstatement petition as to her shoulder injury, this petition extended the time within which to seek review. This argument was rejected because the reinstatement petition, too, was not filed within three years of the last payment of benefits. The doctrine of equitable estoppel also did not apply to toll the statute of limitations since the claimant did not allege fraud on the part of the employer.

    The Commonwealth Court did hold, however, that the Appeal Board erred in denying the cross-appeal of the judge's decision, which had found that the claim petition seeking aggravation of PTSD was moot. The court held that a claimant with a pre-existing injury is entitled to benefits by showing that the injury has been aggravated by a working condition. The court remanded this issue back to the judge to determine whether the claimant's PTSD was caused by abnormal working conditions as required to establish a psychic injury.