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  • Cardamone Law- The Official
    Partner of the American Worker

    Cardamone Law- The Official
    Partner of the American Worker

    Should A Fatal Claim Petition Be Denied When Decedents Death Did Not Occur Within 300 Weeks of The Work Injury?

    We get this question all the time, should a fatal claim petition be denied when decedents death did not happen within 300 weeks of the injury at the workplace?

    Unfortunately, the answer to this is yes, pursuant to a Commonwealth Court of Pennsylvania Opinion in Whitesell v. Workers’ Compensation Appeal Board (Staples, Inc.), No. 205 C.D. 2013 dated July 10, 2013.

    Whitesell v. WCAB – The Background

    Decedent suffered a low back injury on October 15, 2003 while working for Staples. After two spinal surgeries, he filed a fatal claim petition in Pennsylvania workers’ comp case to Review to challenge the originally accepted “lumbar sprain/strain” diagnoses on the Notice of Compensation Payable. The Employer agreed to amend the diagnoses to include lumbar disc disruption L4-L5 resulting in total disc arthroplasty at L4-L5.

    death claim in Pennsylvania
    Image Source: pexels.com/Veronika Valdova

    Decedent died June 13, 2010 as a result of mixed drug toxicity from medication prescribed by the treating physician. A Fatal Claim Petition in PA workers’ compensation case was filed on June 8, 2011 and the Employer denied the allegations claiming the death did not occur within 300 weeks of the original injury as required by Section 301(c)(1) of the Pennsylvania Workers’ Compensation Act.

    About the Case – Whitesell v. WCAB (Staples, Inc.)

    The Pennsylvania Workers’ Compensation Judge and the Appeal Board denied the Claim Petition, holding that the Fatal Claim is barred by 301(c)(1) of the Act. Decedent contended that the term “injury” for purposes of the 300-week limitation should mean the original work comp injury in addition to any other injuries which occurred as a result of the original injury in the PA work comp petition for fatal claim. As such, the 300-week limitation to file a death claim in Pennsylvania starts from the date that the additional injuries occurred.

    file a death claim in Pennsylvania
    Source: PA Workers’ Compensation Act

    The Commonwealth Court discussed Shoemaker v. Workmen’s Compensation Appeal Board (Jenmar Corporation), 604 A.2d 1145 (Pa. Cmwlth.), appeal denied, 533 Pa. 614, 615, 618 A.2d 403, 404 (1992), and found that it cannot be meaningfully distinguished from the circumstances in the instant case. In Shoemaker, a claimant was injured in a tractor-trailer accident in February 1980, had surgeries and received blood transfusions resulting in AIDS and death in July 1987. The Fatal Claim Petition in Pennsylvania work comp was likewise barred there, as it was here, and for the same reasons. The Court concluded that it was irrelevant that the Decedent’s work injury was legally expanded by the Work Comp Judge in 2006, and that the additional injury, even if “insidious” and not “standard”, doesn’t carve out an exception to 300-week limit.

    The Verdict!

    Is this Decision fair? NO!! It was clear that Decedent’s death was causally related to the original injury.  Why does the original injury date rule the day? The drugs which caused the death were directly related to the work injury/surgery. The 300 weeks should begin to run from the most recent work-related diagnosis or workplace injury in Pennsylvania so long as it is connected to the original injury.

    Contact Cardamone – Always Call Cards!

    If you have any questions about Pennsylvania Work Comp Law, call or email Certified Specialist in Pennsylvania Workers’ Compensation 7 days a week at (215) 206-9068 or email michael@cardamonelaw.com. Cardamone Law provides services in Allentown, Lancaster, Lansdale, Pittsburgh, Philadelphia and throughout PA.

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