NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
The FDA recently approved the "EyeBox," an eye-tracking test device to help diagnose concussions. The company that makes the device, Oculogica, Inc., touts that this technology brings in a new era for diagnosing concussion and managing patients. It is marketed to be the first objective diagnostic test for concussion. In referenced studies the company claims that the EyeBox had high sensitivity to the presence of concussion and that a negative EyeBox result was consistent with lack of concussion. We expect to hear more about this given that allegations of traumatic brain injury are common in the workers’ compensation arena. The Oculogica websitehttp://www.oculogica.com/ emphasizes that the results of the test “cannot be influenced or ‘gamed’ by the patient.
- Copyright 2019,Jane Lipscomb Stone, Stone Loughlin & Swanson, LLP.
There are several pieces of legislation under consideration that affect workers’ compensation. Senate Bill 163 would require every construction contractor that does business with state government to carry workers’ compensation insurance. As usual, business interests oppose the legislation.
House Bill 2143, while only affecting Police or Fire Persons, would expand coverage to PTSD claims where the condition is not alleged to be caused by a single event, but also by exposure to multiple events—a cumulative exposure concept.
House Bill 1005 would require insurance carriers who have issued a PLN denial related to causation based on a medical opinion to also pay for a medical opinion on causation from the claimant’s treating provider or from a doctor to whom the treating provider “previously” referred the claimant.
Senate Bill 934, championed by OIEC, would change the deadline for filing a suit for judicial review of a DWC decision from 45 days to 60 days in order to give the claimant more time to locate an attorney willing to take the case to district court.
Senate Bill 229 would require the notices OIEC now sends to claimants describing their rights and obligations to also include a statement informing the claimant that he has the right to choose a doctor who is a doctor of medicine, osteopathic doctor, optometrist, dentist, podiatrist or chiropractor who is licensed and authorized to practice.
- Copyright 2019, Jane Lipscomb Stone, Stone Loughlin & Swanson, LLP.
The case of New Hampshire Insurance Company v. Rodriguez, No. 08-15-00173-CV, recently decided by the El Paso Court of Appeals, may have a huge impact on workers’ compensation insurance carriers’ subrogation lien rights to plaintiffs’ recoveries in 3rd party lawsuits. The case involved two potential employers, only one of which had workers’ compensation insurance which paid almost $2 million dollars in workers’ compensation benefits to the catastrophically injured worker. The worker sued both companies, and a jury apportioned the liability among the two companies and the worker. So far, so good. But then the trial judge found that the workers’ compensation insurance carrier’s right of subrogation against the total judgment had to be reduced by the dollar amount the jury attributed to the insured employer’s negligence. The court of appeals affirmed this methodology which, if the Texas Supreme Court allows this to stand as precedent, would mean that a carrier’s statutory lien interest would be reduced or extinguished altogether whenever a jury apportions negligence on an employer, even if the worker were to be awarded 100% of his damages. The greatest impact will be in the employee leasing context where there are often two potential entities who could be the employer of the injured worker for purposes of a personal injury claim.
- Copyright 2019,Jane Lipscomb Stone, Stone Loughlin & Swanson, LLP.
With the demise of “bad faith” in workers’ compensation we are seeing a lot of attempts by plaintiff attorneys in 3rd party lawsuits to try to work-around the exclusive remedy defense in order to hold an employer vicariously liable for damages. The core issue is always whether an individual was an employee or an independent contractor of a company at the time of the accident. Many times there will be a contract between an individual and a company where both agree that the individual is not an employee. It seems like this would be enough, but the Houston Court of Appeals recently decided that even where there is a clear agreement between the parties, there must still be an analysis of evidence regarding who has the right to control the details of the individual's work. Because this is a fact question, even a clear agreement cannot be the basis of a summary judgment. Stevenson v. Waste Management of Texas, No. 14-17-00433-CV, 02/21/19.
- Copyright 2019,Jane Lipscomb Stone, Stone Loughlin & Swanson, LLP.
Karissa Coleman thought she was clever enough as an insurance agent to teach herself how to code medical bills for cancer treatment. Ms. Coleman created fake medical bills and fake medical records and then submitted fake claims for payment for out of pocket medical expenses not covered by medical insurance. As “treatment” for her fakery, Ms Coleman got a real sentence: 10 years of probation and a requirement to perform 100 hours of community service. Plus, she must pay back over $300,000. We wonder whether she still has her ill-gotten gains so that she can actually make restitution. The lesson here is that the more complex a system, the easier it is for bad actors to fly under the radar. It costs us all.
- Copyright 2019,Jane Lipscomb Stone, Stone Loughlin & Swanson, LLP.
Jennifer Kocanowski, a member of the Finderne Fire Department in the Township of Bridgewater, was injured in March 2015 while carrying equipment in response to a multi-alarm fire. She fractured her fibula, tore ligaments in her ankle, and injured her back.
Prior to the injury, Kocanowski had not worked for over a year. She had previously worked in 2013 as a nanny and a home health aide but took a six month leave from volunteering to care for her ill mother after her father’s death. She returned to volunteer firefighting in July 2014. However, she did not resume her prior outside employment. Her injury left her with permanent partial impairment.
The issue presented in this case was whether the Township owed Kocanowski temporary disability benefits following her injury in March 2015. Kocanowski argued that she was entitled to temporary disability benefits based on the maximum rate set forth in N.J.S.A. 34:15-75, the provision dealing with rates for volunteer firefighters and EMTs. The Township argued that she was not entitled to temporary disability benefits because she had no lost wage to replace. The Judge of Compensation and the Appellate Division both held that Kocanowski was not entitled to temporary disability benefits at all since she had not worked in over a year prior to her injury and had no offer of employment.
The New Jersey Supreme Court issued its decision on February 19, 2019. The decision focused on the legislative intent to encourage volunteerism in passing N.J.S.A. 34:15-75. This statute reads:
“Compensation for injury and death, either or both, of any volunteer fireman . . . (or) emergency management volunteer doing emergency management service . . . shall:
1. Be based upon a weekly salary or compensation conclusively presumed to be received by such person in an amount sufficient to entitle him (or her) or, in the event of his (or her) death, his (or her) dependents, to receive the maximum compensation by this chapter authorized. . .”
The Supreme Court reversed the decision of the Appellate Division: “As such, we find N.J.S.A. 34:15-75 authorizes all volunteer firefighters injured in the course of performing their duties to receive the maximum compensation permitted, regardless of their outside employment status at the time of the injury.”
The Court rejected the argument of the defense that all claims for lost wages must meet the test set forth in N.J.S.A. 34:15-38. Defense argued that the words “by this chapter authorized” at the end of N.J.S.A. 34:15-75 refers to the entire workers’ compensation statute. The provision dealing with temporary disability benefits is N.J.S.A. 34:15-38. That section requires temporary disability benefits be paid from the day the employee is first unable to work due to the accident up to the first working day that the employee is able to resume work. Defense suggested that this petitioner could not meet the test in N.J.S.A 34:15-38 because she had no work.
The Court responded by pointing out the prior to the passage of N.J.S.A. 34:15-75 in 1952, volunteer firefighters who were unemployed were entitled to temporary disability benefits even though N.J.S.A. 34:15-38 existed. The rules for all other employees were not applied to volunteers. In essence, the Court ruled that the New Jersey Legislature clearly never intended statutory volunteers to be subject to the law that applies to all other employees in New Jersey. The reason for this exemption was to encourage volunteerism.
The Court’s decision failed to address one important question raised in oral argument, namely whether this ruling would mean that an 18-year-old high school volunteer firefighter injured in 2019 with no outside employment would be entitled to $921 per week while receiving authorized treatment and attending full-time high school classes. The decision in Kocanowski suggests that this high school volunteer must be paid $921 per week while actively treating until reaching maximal medical improvement, notwithstanding the obvious windfall to the student and the cost to the municipality.
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
The idiopathic defense is not an easy one for employers to prevail on in New Jersey. The basic concept is that the injury is not a result of any particular work effort and could happen anywhere, such as walking along a work corridor and suddenly feeling pain in one’s knee without falling or tripping. But if work circumstances make the injury more likely, the defense is not available. That was the holding in Quiles v. County of Warren, A-3938-17T3 (App. Div. February 13, 2019).
Officer James Quiles worked as a corrections officer for the County of Warren. On March 14, 2014, he was climbing stairs at the County corrections facility to perform an inmate count when he felt a “pop and sharp pain” in his left knee. The County physician sent petitioner to an orthopedist following the incident, but the county denied the case. So petitioner made an appointment with his own personal physician, Dr. Frank Capecci, who examined petitioner’s knee in April 2014. Two days after seeing Dr. Capecci, petitioner went to the ER at Saint Clare’s Hospital with knee pain. There was an entry in the record to the effect that petitioner had been running approximately 100 yards a few days earlier and suffered knee pain.
Petitioner continued to work for months, but in the Fall of 2014, Dr. Capecci recommended arthroscopic surgery to repair a left knee meniscal tear. Three months later Dr. Capecci reconstructed petitioner’s ACL due to an incomplete ACL tear.
Petitioner filed a motion for medical and temporary disability benefits. A video was shown at trial exhibiting petitioner climbing metal stairs while wearing heavy equipment and combat boots. The equipment weighed about 25 pounds. Petitioner denied that he ever told the hospital that he had been running 100 yards. Dr. Capecci also testified at trial, stating that in his view it was the stair climbing that caused the knee pathology.
The County’s medical expert, Dr. Richard Rosa, testified that there was no clear link between a torn ACL and just walking up steps. There was some evidence that petitioner had complained of knee pain in 2008, but there was no evidence of any significant treatment.
The Judge of Compensation ruled in favor of petitioner on the ground that petitioner’s job required him to climb stairs while wearing 25 pounds of equipment. As such he was performing a task that was stressful to his knees. Further, the Judge did not credit the random entry in April 2014 to the effect that petitioner had been running 100 yards. The Judge awarded medical treatment and temporary disability benefits to petitioner. The County then appealed.
The Appellate Division noted that when an injury is due to a personal risk, such an injury is not compensable because there is no connection with employment. Rather, it is idiopathic and not related to work. The Court agreed with the Judge of Compensation that a key distinguishing feature in this case was that petitioner was wearing 25 pounds of equipment, making it harder to climb steps. The Court gave more weight to the opinion of the treating physician, Dr. Capecci, because he was more familiar with the case. The Court further discounted the one reference to running 100 yards, noting that petitioner exercised and participated in recreational activities until the March 14, 2014 stair climbing incident. Those facts indicated that petitioner did not have a pre-existing knee problem.
The case is interesting because it underscores what employers need to win idiopathic claims. In this case, the employer was at a huge disadvantage to begin with because petitioner was wearing 25 pounds while climbing stairs. This was not someone who was just walking up or down stairs in light clothing. The 25 pounds of weight removed the case from being an event that could have occurred anywhere. The County also could not produce solid evidence of preexisting disability in 2008.
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
What happens if an employer terminates the employment of a worker, who then has an accident before leaving the work premises? Is there workers’ compensation coverage? Does it make a difference if the employee quits as opposed to being fired and then has the injury on premises while leaving? Does the moment of job termination immediately sever workers’ compensation protection?
These are questions that were recently put to me by a claim professional. A search of published cases in New Jersey since the 1979 Amendments yields no published case on point. However, the answer is undoubtedly that coverage for workers’ compensation will continue, barring some deviation, until the employee leaves the work premises.
While workers’ compensation laws vary from state to state, there is one authority that courts in every state look to, namely Larson’s Workers’ Compensation Law. This treatise written by Professor Arthur Larson suggests that the employee is covered for workers’ compensation purposes for a reasonable period of time while packing his or her belongings and leaving the work premises. A slip and fall while exiting the work premises should therefore be compensable under most circumstances.
Professor Larson comments that injuries post job termination are actually quite common because employees are often extremely upset in the moments after termination, leading them to be inattentive or careless. Many times employers are suspicious about such injuries, and employment counsel often recommend that someone in supervision accompany the injured worker who has been terminated until he or she leaves the premises. This is certainly good advice for a number of reasons.
Professor Larson analogizes injuries post job termination to punching in or out before leaving the premises. Case law in New Jersey provides that punching in and out of work is separate and distinct from shedding the protection of workers’ compensation coverage. Punching in and out is important for purposes of payment. But New Jersey cases make clear that one remains covered for purposes of workers’ compensation while being on the premises, whether the employee has not yet punched in or has already punched out of work. The key is the location of the worker at the time of the accident. Was the employee injured on premises owned or controlled by the employer? If yes, there is coverage, notwithstanding that the employee may not have punched in yet or has already punched out.
Similarly, an employee is covered for workers’ compensation purposes during on-premises lunches, even though having lunch itself is not a job requirement. New Jersey law is unequivocal that injuries in company cafeterias are compensable. The reasoning again is that New Jersey has a strong premises rule. Work premises are equal: sitting in a lunch room is the same as sitting at one’s desk for purposes of workers’ compensation coverage.
Are there exceptions to the rule noted above? Professor Larson makes an interesting observation that an employee who has quit or who has been fired can sometimes lose coverage if he or she lingers for a lengthy period of time on the premises and begins, for example, to play cards with colleagues or drink alcohol. Those activities would be deviations and would take the employee out of workers’ compensation coverage. But if the delay in departure from the work premises is caused by the employee’s need to wait for employer transportation in a company vehicle, coverage would continue while the employee leaves in the company vehicle.
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
DATING A NTCP IN PENNSYLVANIA
By
Kevin L. Connors, Esquire
Dear Client:
First, for those not living and administering workers’ compensation claims in Pennsylvania, a Notice of Temporary Compensation Payable (NTCP) is what we regard, under our Pennsylvania Workers’ Compensation Act, and the Bureau of Workers’ Compensation’s Regulations, as an administrative and procedural device legislated by the General Assembly under reforms enacted in 1996, under Act 57, with the form being increasing utilized by employers, insurers, and third-party administrators, to initially administrate workers’ compensation claims, through an initial ninety (90) day post-injury phase, during which the employer and/or insurer has an election to make, being whether the workers’ compensation is formally accepted, with the issuance of what we call our Notice of Compensation Payable, essentially a compensation judgment against the employer and insurer, entitling the injured employee to continue to receive workers’ compensation benefits in the form of both indemnity compensation benefits, for wage loss, as well as medical compensation benefits, for medical treatment related to accepted work injuries, while the NTCP has increasingly been favored by employers and insurers for utilization to postpone formal acceptance of the workers’ compensation claim as being compensable and work-related, until the employer and insurer can complete its investigation beyond the initial twenty-one (21) day period that the Act had previously required employers/insurers to engage in their initial investigation, to determine whether the claim would be accepted or denied, acceptance requiring issuance of the Notice of Compensation Payable, denial requiring the issuance of Notice of Compensation Denial.
In 1996, a new administrative tool was added to our compensation toolbox, being the Notice of Temporary Compensation Payable (NTCP), which initially had a shorter lifespan after enactment in 1996, but now has a lifespan of ninety (90) days from date of disability to end date, upon with the NTCP expires, and either converts, or is withdrawn by the employer/insurer, in which case the employer/insurer is allowed under our Act, to deny the workers’ compensation claim as being compensable and work-related, and also authorizes the employer and insurer to stop the payment of temporary compensation benefits.
The key to the NTCP is that it was not intended to constitute a formal acceptance of the workers’ compensation claim as compensable and work-related, to allow the employer and insurer to have greater flexibility in terms of their initial investigation into the compensability of a claim, as well as to allow the employer and insurer to investigate the factual and medical issues that drive compensability issues, classically being the following factors in terms of whether a claim is or is not compensable under our Workers’ Compensation Laws, to include:
An employer/employee relationship;
A work-related injury occurring within the course and scope of employment;
That the work-related injury was not caused by non-work-related factors;
That the work-related injury has resulted in the Claimant being disabled from being able to perform either pre-injury work, or available modified-duty work;
That the Claimant is not impeachable on other grounds, to include fraud or dishonesty;
That the Claimant has not refused or failed to return to work;
That the injury has resulted in wage-loss producing disability causing continuing income loss to the injured employee; and,
That the Claimant is not fully recovered from the alleged work injury.
What’s the big deal?
Well we live in a form-intensive and a disability-driven state, where acceptance of a workers’ compensation claim, resulting in compensation benefits being paid, can sometimes, obviously dependent upon the particular facts of a particular claim, can invite lifetime exposure for a particular injury, a particular Claimant, and can expose the employer and insurer to a Sisyphean burden of proof to secure an end point to the workers’ compensation claim, be it through petitioning for a procedural termination, modification, or suspension of workers’ compensation benefits, and/or through a claim compromise, resulting in the parties agreeing to resolve the workers’ compensation claim in a settlement, under which the parties are free to negotiate the terms of settlement, to include what benefits are being resolved, be it wage loss benefits, specific loss benefits, medical compensation benefits, and other potential benefits, to include penalties, attorneys’ fees, and statutory interest.
Fascinating, yes!
So as the NTCP has gained in popularity with employers and insurers, it is also become a form heavily scrutinized not only by the Bureau, but also by workers’ compensation practitioners and stakeholders, to include Claimants, Claimants’ attorneys, and Workers’ Compensation Judges deciding workers’ compensation claims where the NTCP might be the only workers’ compensation form that describes and articulates essential facts of the claim, be it the date of injury, mechanism of injury, the description of the injury, and what types of benefits are being paid, be it both indemnity and medical compensation benefits, or conversely, only medical compensation benefits, with there being no reference in the “medical only” NTCP to any temporary compensation benefits being paid in the form of indemnity or wage loss compensation benefits, again when those compensation benefits are considered to be “temporary” under the NTCP, and it does not constitute a formal admission of liability against the employer or insurer, and there is, therefore, no guarantee to the Claimant, that the benefits will continue beyond the ninety (90) days which our State and Act allow temporary compensation benefits to be paid for, from claim or disability inception date through expiration of the ninety (90) day compensation benefit.
As is known by most practitioners in Pennsylvania, the NTCP will automatically convert to an NCP, or Notice of Compensation Payable, if no action is taken at the expiration of the ninety (90) days of temporary compensation benefits under the NTCP, with the Bureau, in its infinite wisdom, issuing a Notice of Conversion, under which that NTCP has now become that procedural compensation judgment under a Notice of Compensation Payable, where the workers’ compensation claim has been accepted by employer and insurer as being work-related and compensable, with the benefits described in the NCP now being due and owing, absent the employer or insurer proving the following factors:
The Claimant dies, compensation benefits terminate by operation of both death and loss;
The Claimant voluntarily returns to work in their pre-injury capacities, and there is no continuing wage loss post-return to work, such that the Claimant’s compensation benefits are suspended;
The Claimant returns to work in a modified-duty capacity, with some reduction in return-to-work wages, such that the Claimant’s compensation benefits are modified, and temporary partial disability benefits are paid, subject to the 500 week limitation;
The Claimant executes a Supplemental Agreement, perfecting either a termination, suspension, or modification of the Claimant’s workers’ compensation benefits;
The Claimant signs a Final Receipt (almost never used), under which the Claimant agrees that all compensation benefits have been paid;
The Claimant is deported by virtue of not being able to prove legal immigration status;
The claim is settled under a Compromise and Release Agreement, perfecting some type of compromise of the indemnity and medical compensation benefits liability associated with the claim; and,
The Claimant’s compensation benefits are terminated, modified, or suspended by order of a workers’ compensation judge, with the employer/insurer carrying the burden of proving the entitlement to a change in the Claimant’s benefit entitlement status.
Pregnant with thought? Maybe not!
Recently, the Pennsylvania Commonwealth Court issued a Decision dated January 24, 2019 under the caption ofValley Stairs and Rails v. Workers’ Compensation Appeal Board (Parsons), with the Commonwealth Court issuing a ruling clarifying the proper use of the NTCP, specifically determining when the first date of disability under a NTCP should be considered to have occurred.
Before plunging into the facts of Valley Stairs, it is necessary to emphasize that the Claimant’s bar has been aggressively challenging the basis for using NTCPs, attempting to allege, that Employers and Insurers have subverted the form-issuance process under the Pennsylvania Workers’ Compensation Act, by delaying the decisions relative to the acceptance or denial of a workers’ compensation claim, by claiming, under the NTCP, that only temporary compensation benefits are payable for the first ninety (90) days relevant to the reporting of an alleged work-related injury.
In Valley Stairs, the Employer petitioned for a review of an Order issued by the Workers’ Compensation Appeal Board (Board), reversing an Order rendered by a Workers’ Compensation Judge (WCJ), which had denied a Penalty Petition that had been filed by the Claimant, under which the Claimant had alleged that a NTCP had been improperly used, with the Claimant contending that the NTCP was issued one day later than the Claimant contended it should have been utilized, further contending that the Employer’s revocation of the NTCP, at the 90th day of issuance of the NTCP, was also one (1) day late, under which the Claimant was alleging that the NTCP should convert to a Notice of Compensation Payable, requiring the Employer and Insurer to accept the Claimant’s workers’ compensation claim as compensable and work-related, and to, in accordance therewith, issue workers’ compensation benefits to the Claimant, in the course of paying the Claimant indemnity compensation benefits, for purposes of providing wage loss benefits to the Claimant, as well as to insure payment of the Claimant’s reasonable, necessary and causally-related medical expenses.
Often, facts count!
The timeline for Valley Stairs was that the Claimant had sustained a low back strain, while working for the Employer, Valley Stairs, on March 27, 2015. The Claimant’s injury resulted in the Claimant being transported by ambulance to hospital, with the Claimant then never working for the Employer after the alleged work injury, although the Claimant was paid full pay for the date that the Claimant alleged his injury, with the Claimant’s final paystub then stating that the Claimant was paid seven (7) hours of “COMP – TM”, at the Claimant’s regular pay rate.
In turn, the Employer, through its insurance carrier, issued a NTCP describing the injury as a low back strain, and indicating the date of injury as March 27, 2015, with NTCP indicating the ninety (90) day period, under Section 46.1(d)(6) of the Pennsylvania Workers’ Compensation Act (WCA), began on March 30, 2015, the date of issuance of the NTCP, through June 27, 2015, the 90th day from issuance of the NTCP on March 30, 2015.
On June 27, 2015, the Employer then filed a Notice of Compensation Denial, under which it alleged that the Claimant had failed to give timely and proper notice of his injury, and that the Claimant had not sustained any compensable wage loss. The very next day, the Employer filed a Notice Stopping Temporary Compensation Payable (as well as a Notice of Compensation Denial).
The very next day, the Bureau, in its infinite wisdom, issued a Notice of Conversion, converting the NTCP into a Notice of Compensation Payable.
Shortly thereafter, the Claimant filed a Penalty Petition, alleging that the Employer violated the Act, by stopping the payment of compensation and benefits after the NTCP had converted to a NCP.
In the course of hearings before the WCJ, the Claimant testified that he was injured on March 27, 2015, when he was sliding a stair across a floor, with the Claimant then going to the hospital by ambulance, and never returning to work after the injury.
The same day as the Claimant alleged his injury, the Claimant received paperwork stating that he could not return to work, presumably from the emergency room physicians or triage personnel, with the Claimant then presenting what can only be construed to be a disability note taking the Claimant out of work, to a co-worker at the Claimant’s Employer, with the co-worker then taking the paperwork into the building, and retrieving the Claimant’s lunch box.
Introduced into evidence in the Claimant’s hearings with respect to the Penalty Petition, was a copy of the Claimant’s final paystub, again reflecting that the Claimant received payment of salary wages for both “regular” hours, as well as seven (7) hours of “COMP – TM”.
Also presented as evidence were the first indemnity benefit checks, in the form of temporary compensation benefits, which were submitted to the Claimant, evidencing that the temporary compensation benefits actually began on March 30, 2015, continued, for some reason, until April 12, 2016. (???)
Finding that the Claimant received his full pay for the date of the alleged injury, being March 27, 2015, the Workers’ Compensation Judge, in ruling on the Penalty Petition, determined that the Claimant’s disability commenced on the date of first payment of temporary compensation benefits, being March 30, 2015, further finding that the Employer’s Notice Stopping Temporary Compensation (NSTC) was filed on the 90th day of the Claimant’s alleged disability, being June 29, 2015, with the Workers’ Compensation Judge finding that the Notice of Conversion issued by the Bureau had been improperly issued, and was thus void as a matter of law.
That conclusion resulted in the Workers’ Compensation Judge finding that the Claimant failed to prove a violation of the Act, with the Claimant’s Penalty Petition being denied.
Seeking appeal, the Claimant then appealed to the Workers’ Compensation Appeal Board (WCAB), asserting that the WCJ had erred in finding the first date of disability was March 30, 2015, with the Claimant contending that his injury had rendered him unable to return to work on the date of the alleged injury, being March 27, 2015.
In addition, the Claimant argued before the Board, that the WCJ had made an erroneous finding of fact that the Employer’s Notice Stopping Temporary Compensation was timely filed, since the Claimant contended that it was issued on the 93rd day of disability, with the Claimant contending that the Bureau had properly issued the Notice of Conversion, and that the Employer had improperly stopped the payment of temporary compensation benefits to the Claimant.
The Claimant’s appeal was actually upheld by the Board, which reversed the Workers’ Compensation Judge’s Decision, as the Board concluded, in reliance uponGalizia v. WCAB, 933 A.2d 146 (Pa. Cmwlth. 2007), that the “date the 90th day period begins on is the first day that the Claimant was entitled to receive disability benefits as a result of the work injury.”
Moreover, the Board concluded that the WCJ’s findings that the Claimant received his full pay for the date of the alleged injury did not outweigh the fact that the Board concluded that the Claimant had clearly sustained a loss of earning power on the day of the alleged injury, notwithstanding that the Claimant was paid by the Employer for that date.
Concluding that the Claimant should have been eligible for compensation benefits as of March 27, 2015, the date of the alleged injury, it further concluded that the ninety (90) day period for stopping temporary compensation benefits would have ended on June 25, 2015, further finding that NTCP would have converted to an NCP by operation of law before the Employer issued the NSTC and the NCD on June 29, 2015.
An immediate appeal was taken by the Employer, resulting in the Employer’s appeal ascending to the Commonwealth Court.
In deciding the Employer’s appeal, the Commonwealth Court reviewed the relevant provisions of the Act, to include Sections 306(a)(2) and 406.1(d), which stated as follows:
“Section 306(a)(2):
“Nothing does actually require payment of total disability benefits under this clause for any period during which the employee is employed or receiving wages.” 77 P.S. §511.2
“Section 406.1(d):
“The Employer and Insurer shall promptly investigate each injury reported or noted to the Employer and shall proceed promptly to commence payment of compensation due to either pursuant to an agreement upon the compensation payable or a Notice of Compensation Payable as provided in Section 407, or pursuant to a Notice of Temporary Compensation Payable as set forth in subsection (d) on forms prescribed by the Department and furnished by the Employer …
(d)(1):
In any instance where an employer is uncertain whether a claim is compensable under this Act or uncertain as to the extent of its liability under this Act, the Employer may initiate compensation payments without prejudice and without admitting liability pursuant to a Notice of Temporary Compensation Payable, as prescribed by the Department.
(4) Payments of temporary compensation may continue until such time as the employer decides to controvert the claim.
(5)(i) If the employer ceases making payments pursuant to a notice of temporary compensation payable, a notice in the form prescribed by the department shall be sent to the claimant and a copy filed with the department, but in no event shall this notice be sent or filed later than five (5) days after the last payment.
(ii) This notice shall advise the claimant, that if the employer is ceasing payment of temporary compensation, that the payment of temporary compensation was not an admission of liability of the employer with respect to the injury subject to the notice of temporary compensation payable, and the employee must file a claim to establish the liability of the employer.
(iii) If the employer ceases making payments pursuant to a notice of temporary compensation payable, after complying with this clause, the employer and employee retain all rights, defenses and obligations with regard to the claim subject to the notice of temporary compensation payable, and the payment of temporary compensation may not be used to support a claim for compensation.
(iv) Payment of temporary compensation shall be considered compensation for purposes of tolling the statute of limitations under section 315.
(6) If the employer does not file a notice under paragraph (5) within the ninety-day period during which temporary compensation is paid or payable, the employer shall be deemed to have admitted liabilityand the notice of temporary compensation payable shall be converted to a notice of compensation payable.
77. P.S. §717.1.
Arguing that the first date of disability is the first date that the Claimant is actually out of work as the date that compensation is payable, the Employer argued that the Claimant was prevented from receiving compensation benefits on the date of injury, since the Claimant had received his full pay for that date.
In so arguing, the Employer emphasized that the Claimant was paid the same rate of pay for all hours, further asserting that the Claimant earned his usual wages on the date of the alleged injury, such that the Claimant had no loss of earning power and, accordingly, that there was no “disability” for which there would have been either the right of the Claimant to receive compensation benefits, or the obligation of the Employer to pay the same.
As is well known in our form-intensive and disability-driven jurisdiction, we regard “disability” for workers’ compensation benefit purposes, as the loss of earning power, such that even if there is a work-related physical disability, it is only compensable if that physical disability occasions an actual loss of earnings that would entitle the injured employee to receive compensation benefits under the Act. Bissland v. WCAB, 638 A.2d 493 (Pa. Cmwlth. 1994).
Countering Employer’s argument, the Claimant pointed to Section 406(1)(d) of the Act, arguing that the Employer is directed to timely stop an NTCP within ninety (90) days from which the date that compensation was “payable”.
Arguing that he was treated for his work injury at the hospital on the date of the alleged injury, the Claimant argued that his compensation benefits were not only payable, but were actually paid, as the Employer did pay for the Claimant’s medical treatment on the date of the alleged injury, with the Claimant arguing that the WCJ had committed errors of fact and law in finding that the Claimant received his full pay on the date of being treated, since the Claimant’s paystub denoted the time that he was paid for as “COMP – TM”.
The Claimant also argued that even if what he was paid on the date of his alleged injury constituted full pay, such that no actual loss of wages had occurred, the Claimant argued that the wages that he was paid under the date of his injury was a “de facto acceptance” of his injury since he continued to receive payments from the Employer after he became disabled, prior to the actual issuance of the TNCP by the Employer’s Insurer.
Countering Claimant’s argument that the payment of the Claimant’s medical expenses on the date of the alleged injury constituted a payment of compensation benefits on the date of his injury, the Employer correctly asserted that “compensation”, sometimes loosely defined in the Act, and under ruling case law, is limited to wage loss benefits, and does not necessarily extend to medical bills that might be paid by an Employer or Insurer post-injury.
In reliance upon Bureau regulations regarding the payment of wages, the Commonwealth Court, in an Opinion authored by Judge Patricia McCullough, determined that the ninety (90) day period for the payment of temporary compensation benefits, also relevant to the ninety (90) day period for the stoppage of temporary compensation benefits, as well as for the issuance of the NSTC and NCD, was March 30, 2015, the first day that compensation benefits were paid to the Claimant, as listed on the NTCP.
Since the Employer had filed its Notice Stopping Temporary Compensation Payable on June 29, 2015, the 90th day from March 30, 2015, the Commonwealth Court concluded that the Notice Stopping Temporary Compensation and the Notice Denying Compensation were both timely issued, resulting in the Bureau’s Notice of Conversion being voided.
A Concurring Opinion was authored by Judge Ann Covey, with Judge Ann Covey concluding that the Claimant’s “first day out of work”, relevant for the first date upon which temporary compensation benefits should be paid, was March 30, 2015, the Monday following the Claimant’s alleged work injury on the preceding Friday.
It is anticipated that the Valley Stairs Commonwealth Court Decision will likely be appealed by the Claimant, as this is a strategy being advanced by the Claimant’s bar, to challenge NTCPs.
TAKEAWAYS
The take away, yes, we get it, our Newsletter was a little long-winded, but an issue that might not be considered critical to Employers, Insurers and Administrators, although it illustrates the extent to which the Claimant’s bar will seek penalties, in the course of challenging the utilization of NTCPs by Defendants.
The Valley Stairs Decision by the Commonwealth Court is supportive of tying together several sections of the Act, to reinforce relevant dates and deadlines critical to the utilization of NTCPs, as well as the forms that would stop temporary compensation benefits, being the NSTC and the NCD.
No less true, we sometimes run into claims where temporary compensation benefits are stopped with the utilization of only one form, when both are required, being the requirement that both the NSTC and NCD be issued at or before the 90th day of temporary compensation benefits, to avoid clashes with Claimants’ attorneys over whether an NTCP has “converted” to a Notice of Compensation Payable, a conversion that should be voluntary and not involuntary by Employers, Insurers, and Administrators.
ConnorsO’Dell LLC
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