If injury is not well-pled, employer’s late answer has not admitted liability.

An employer does not admit liability for a work injury with a late answer to a Claim Petition where the injury is not well pled. 

In this case, the claimant suffered injuries as a result of an August 6, 2019, motor vehicle accident while he was driving for the employer. A Claim Petition was filed, alleging a “left rotator cuff pathology, cervical left-side radiculopathy, and cervical, thoracic and lumbar sprain/strains.” The employer filed a late answer to the Claim Petition, and the claimant’s Yellow Freight motion was granted. 

The Claim Petition was litigated, and the Workers’ Compensation Judge accepted the opinion of the employer’s medical expert that the claimant’s left shoulder tendinosis was not related to the work injury and that he was recovered from a sprain and strain of the shoulder. According to the judge, the employer overcame the rebuttable presumption of the claimant’s alleged ongoing disability after the date of the employer’s IME, which the claimant was entitled to by virtue of his Yellow Freight motion. The judge determined that “left rotator cuff pathology” was not a well-pled fact, was not a medical diagnosis, and was not legally sufficient or definitive of the shoulder injury. 

The claimant appealed to the Workers’ Compensation Appeal Board, which affirmed the judge’s decision. The claimant then appealed to the Commonwealth Court, which also affirmed the judge and the Board. According to the court, “left rotator cuff pathology” was not well-pled and the claimant was, therefore, not entitled to a presumption of ongoing disability related to his shoulder under Yellow Freight. The burden remained with the claimant to prove the existence of a shoulder injury, its cause and ongoing disability. The judge did not err in finding the employer’s medical experts’ opinion—that the claimant had fully recovered from a strain and sprain of the left shoulder—despite the late answer. Because “left rotator cuff pathology” was not admitted by the employer’s late answer, the employer could rebut any allegations of the left shoulder injury.
 

_{What’s Hot in Workers’ Comp, Vol. 27, No. 9, September 2023, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2023 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}