In Lewis v. City of Philadelphia (WCAB), a Philadelphia police officer sought to amend his injury description to include a psychological injury (physical/mental) after stipulating to an expanded injury description five months earlier.
Claimant sustained injuries in February 2017 during the apprehension of a burglary suspect. Employer acknowledged Claimant’s work injury (hand/wrist, low back and chest wall, and thoracic spine) through anNCP.
In April 2021, Claimant filed an initial Review Petition, which sought to amend the injury description to include a concussion and concussion-related symptoms. The parties filed a joint stipulation resolving this Review Petition in which Employer agreed to amend the NCP to include concussion, headaches, balance issues, and vision issues. "The stipulation also stated: ‘The parties agree that this Stipulation does not prevent the parties from filing future petitions and other relief as appropriate pursuant to the Workers’ Compensation Act.’”
In September 2021, Claimant filed a second Review Petition, which sought to amend the work injury to include a psychological injury due to the physical injury.
Employer filed an answer denying the allegations, arguing that the second Review Petition was barred by the doctrines of res judicata and/or collateral estoppel and that Claimant’s depression was not causally linked to the workplace incident.
The WCJ granted the second Review Petition, finding that delays and inconsistencies in Claimant’s mental health treatment were“attributable to Claimant’s aversion to seeking that treatment and the fact that the symptoms of the condition wax and wane over time.”
On Employer’s appeal, the Board reversed WCJ’s decision, citing Weney, as Claimant did not seek to include his mental injury in the first petition even though he knew about the injury at the time he entered the stipulation.
In the recently released decision, the Commonwealth Court reversed, drawing a distinction between the case at hand and Weney, as it “involved physical injuries that can be detected by diagnostic imaging or other direct observation of the physical tissues of the body. No such tests exist for psychological injuries, which are not directly observable.”
The court elaborated, “a trained physician or psychologist would need to make professional judgments based on Claimant’s history and clinical presentation, and Claimant would likely not realize the severity or cause of his psychological injury on his own. The evidence here… does not suggest that Claimant or his physicians understood his psychological injury to the point that Claimant ‘should have litigated’ it before September 2021.”
This case is concerning, as it establishes that mental injuries can be added even after the parties stipulate to the physical injuries incurred as a result of the work injury.
