State News : Pennsylvania

The Commonwealth Court of Pennsylvania revisited the voluntary withdrawal from the workforce argument in a recent decision, Hi Tech Flooring, Inc. v. WCAB (Santucci), issued on 08/09/22.  This case dealt with a work injury of 08/28/14, which was recognized as a right knee contusion.  A subsequent decision on a termination petition found the Claimant injury led to progressive degenerative changes of the knee.  In a 12/10/18 Decision, the workers’ compensation judge denied a subsequent petition to terminate compensation benefits but granted a suspension of benefits based upon a voluntary withdrawal from the workforce.  The WCAB reversed this decision via opinion circulated 12/03/19. 

The primary facts that led to the Judge’s decision were that the Claimant had been receiving a disability pension since 10/01/17 and social security disability benefits effective 10/07/15, was found capable of working and had not sought any work.  Accordingly, the Judge found the Claimant was withdrawn from the workforce. It should be noted that the Claimant receipt of these other benefits was for conditions beyond the work injury.  His pension application listed the conditions of right shoulder pain, neck pain and right facet arthropathy.  His SSD award was for herniated discs with constant pain – cervical; lumbar spine condition with constant pain; prior right knee surgery with remaining pain; left knee impingement undiagnosed; arthritis of both ankles; numbness of the left arm; carpal tunnel; gout; high blood pressure; and high cholesterol” as well as “lumbar and cervical disc disease, status post C5- 6 cervical discectomy and fusion; bilateral knee degenerative osteoarthritis, status post bilateral arthroscopic procedures; right hip degenerative joint disease; and status post total hip replacement.”

The Court applied the leading precent, City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson) (Robinson II), 67 A.3d 1194 (Pa. 2013), noting that an employer may seek a suspension of benefits if the employer can establish, by the totality of the circumstances, that the claimant has chosen to not return to the workforce, but that “[t]here is no presumption of retirement arising from the fact that a claimant seeks or accepts a pension[;] rather, the acceptance of a pension” only creates a permissive inference of such.  The Court found with the Board that these circumstance, with there being not Notice of Ability to Return to Work having been issued or job referrals made, did not arise to a voluntary withdraw under the totality of these circumstances. Simply receiving SSD and a disability pension and not looking for work, when those other benefits were based, in part, on the work injury, did not rise to a voluntary withdrawal from the workforce.  

While this decision seems to limit the voluntary withdrawal from the workforce argument, it also shows that this can be a viable means to get a case into litigation and to actually prevail, as was done before the Workers’ Compensation Judge.  This can create leverage to obtain a favorable resolution.  However, more is most likely needed than just evidence of retirement, ability to work and lack of following through on job offers. We typically recommend combining this argument with a labor market survey/earning power assessment as then the Claimant is provided with a Notice of Ability to Return to Work explaining he may have an obligation to look for work.  The EPA/LMS provides the Claimant with positions that are open and available within his/her physical and vocational capabilities, to which they typically do not apply.  Of course, should they apply, that may prove detrimental to the bringing of such an argument. However, combining such additional evidence hopefully will be found to demonstrate a voluntary withdrawal from the workforce under these totality of circumstances and may provide for a suspension of benefits rather than just a modification that could occur based upon the LMS/EPA, depending upon the amount of wages the located positions may pay.   

Dear Clients:

             We are continuing to monitor the Corona Virus (COVID-19) outbreak, and we want to take a moment to reach out and let you know that we are handling this developing situation at ConnorsO’Dell, as responsibly as possible, noting that our main priority is to insure the health and safety of our staff and our clients.

             Safety being our top priority, we are implementing the following:

 ·         We are taking every precaution possible, to include conducting extra cleanings of our offices, and frequently touched surfaces.

·         We have implemented screening measures to insure the safety of our staff and clients, and we have postponed most in-person appointments, and, to the extent available, are engaging in remote consultations and appointments.

·         We have instructed our staff that if they are not feeling well or are still recovering from illness, we have asked them to self-isolate, for the protection of all.

·         As of 3/16/20, we will also be working remotely for safety.

In reliance upon CDC recommendations, we suggest the following:

 ·         Wash your hands often with soap and water for at least 20 seconds.

·         Always cover your mouth when coughing and sneezing.

·         Maintain social distancing of 3 feet or more between yourself and other persons.

·         Avoid touching your eyes, nose and mouth with unwashed hands.

·         Clean and disinfect frequently used surfaces.

·         Get medical attention early if you have a fever, cough, or difficulty breathing.

·         Mild symptoms should seek medical care and stay home until recovered, if possible.

Please reference the CDC website for the latest updates about the Corona Virus (COVID-19).

We remain vigilant in representing the interests of our clients in this challenging situation facing our communities.

WORKERS’ COMPENSATION IMES IN PENNSYLVANIA

By

Kevin L. Connors, Esquire

            Many of you have expressed some confusion, regret, and/or a pain associated with the selection of independent medical examiners, particularly in the context of workers’ compensation cases.

             No question, this is a difficult task in workers’ compensation cases, as it could well become a claim-defining examination, since under Section 304 of the Pennsylvania Workers’ Compensation Act, Independent Medical Examinations (IME) can only be requested on an every six (6) months basis, triggering brow-furrowing and head-scratching, as to when do I get the IME.

             No less true, the issue for one to secure an IME often comes into question when you are either administering a “medical only” claim, which sometimes drift into the “I am disabled” claim, resulting in a claim for indemnity compensation benefits, as well as claims that are administered a Notice of Temporary Compensation Payable, whether for both indemnity and medical compensation benefits and/or simply for “medical only” compensation benefits.

             As all of us know, the Notice of Temporary Compensation Payable (NTCP) permits the administration of a workers’ compensation claim for the first ninety (90) from issuance of the NTCP, to allow continuing investigation into the workers’ compensation claim, including terms of compensability, disability, injury description, etc., there may be many facets that play into whether a claim is accepted, denied, or administered under an NTCP, with the IME being one resource available to Employers and Insurance Carriers, as well as administrators, as the NTCP is approaching its end point, being that ninety (90) days from issuance, after which, absent the issuance of a Notice of Compensation Denial, as well as the issuance of Notice of Stopping Temporary Compensation, the NTCP becomes the claim-admitting document under which the Employer, Insurer and/or Administrator, becomes liable for the continuing payment of workers’ compensation benefits, being indemnity and medical, and/or only medical.

             Yes, it is a time-sensitive feature in workers’ compensation claims, with an accepted claim technically becoming a workers’ compensation claim with extensive exposure, in the absence of one of the following events occurring post-acceptance, i.e., the conversion of the NTCP into a Notice of Compensation Payable, to include the following possible claim occurrences:

 (1)            The Claimant dies, and compensation benefits terminate by operation of both death and loss;

(2)            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;

(3)            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;

(4)            The Claimant executes a Supplemental Agreement, perfecting either a termination, suspension, or modification of the Claimant’s workers’ compensation benefits;

(5)            The Claimant signs a Final Receipt (almost never used), under which the Claimant agrees that all compensation benefits have been paid;

(6)            The Claimant is deported by virtue of not being able to prove legal immigration status;

(7)            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,

(8)            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.

             So, back to IMEs.

             To address client and contact confusion over who to choose for a respective IME, with it being necessary to differentiate IMEs based upon medical specialties, we have prepared a list of our preferred IME physicians to include the following:

            All of the physicians listed above, are physicians that we have utilized in defense of workers’ compensation, and most of the above-listed physicians have been physicians which have testified on behalf of our clients in litigated workers’ compensation cases, with our having respect for every physician listed above, in terms of their specialty, the thoroughness of their Independent Medical Examination function, to include the narrative medical reports that these physicians draft post-IME, as well as their preparation for any trial depositions that might become necessary in the course of a workers’ compensation claim being litigated, and their tenacity defending their respective opinions, both findings and conclusions, in the course of being subjected to cross-examination by counsel representing Claimants, with the focus of cross-examination often turning on the IME physician indicating that they only had one opportunity to examine the Claimant, particularly in the context of a Claim Petition being defended, and/or how could the IME physician possibly conclude that the injured employee has fully recovered from a work injury, when the IME physician has only examined the Claimant on one occasion, some doctors conducting the examination and in reliance upon the history elicited from the Claimant, and any medical records that we might be able to provide to the IME physician in preparation for their IMEs.

             Obviously, we encourage you to contact us with any question that you might have with regard to any particular physician listed above, as well as any questions that you might have regarding specific medical specialties, the sometimes incongruous nature of workers’ compensation claims, as well the unreasonable evaluation sometimes placed on non-catastrophic injuries by counsel representing workers’ compensation Claimants.

                                                                                ConnorsO’Dell LLC

            Trust us, we just get it!  It is trust well spent!

             We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout Pennsylvania.  We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.

             Every member of our Workers’ Compensation practice group is AV rated.  Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.

HOW PERSONAL IS PERSONAL IN PENNSYLVANIA?

By

Kevin L. Connors, Esquire

            Recently, we were privileged to defend an Employer, against which a workers’ compensation claim was presented, for an Employee who was in the course of making a delivery, when the delivery truck was approached by a masked assailant, who then fired several gunshots into the rear bay of the delivery truck, avoiding aiming at a Co-Employee standing in the front of the back of the delivery truck, and aiming instead at an Employee, who then became the Claimant in the workers’ compensation case, who was standing at the back of the delivery truck trailer, with the masked assailant having made several statements, be it declarations, in the course of firing directly at the injured employee, suggesting that the attack was not work-related, but was personal in nature, resulting in the defense to the claim being raised under Pennsylvania’s “personal animus” defense, which is a defense permitted by Section 301(c)(1) which, in the course of describing what injuries are covered by the Pennsylvania Workers’ Compensation Act, included the statutory declaration “the term ‘injury arising in the course of his employment.’ as used in this article should not include an injury caused by any act of a third person intended to injure the employee because of reasons personal to “employee”, and not directed against him as an employee or because of his employment.”

            The personal animus defense in Pennsylvania, as in almost all jurisdictions, is a statutory defense that requires the employer, as opposed to the employee, carrying the burden of proving that an injury alleged by an injured employee to be within the course and scope of employment, is an injury that was caused by the personal animus, i.e., animosity, of a third party to the injured employee.

            Case in point, our firm recently successfully defended this workers’ compensation claim that involved a retail delivery employee sustaining several gunshot wounds in the course of making a delivery in a urban residential area that the injured employee claimed was a high crime area, attempting to set up the argument, for compensability, that the injured employee’s gunshot wounds, and related disability thereto, was caused by the employee being exposed to this incident in a high crime area, as opposed to the employer, our client, successfully proving, first before the Workers’ Compensation Judge, and then before Appellate body, that the injured employee’s injuries occurred because of the personal animus of a third party, who intended, in the course of the shooting incident, to wound and/or inflict bodily harm on the injured employee, and not to injure, and/or aim at a co-employee, who, when the shooting occurred, was actually closer to the shooter than the injured employee, with gunshots fired by a male unidentified third party, arriving on a bicycle, as the two employees, injured employee and co-employee, were unloading furniture for delivery to a employer customer.

            So when the unidentified assailant, presumed to be a male person, was never identified, was never found by police, with the crime itself never being solved, as to why the injured employee was “targeted”, how can the employer prove that incident was not work-related, and was caused by personal animus, such that the incident and related injuries do not fall under the umbrella of being within the course and scope of employment?

            Admittedly, these are not easy questions to answer, with it being obvious concern throughout the litigation of this workers’ compensation claim, being that the claim might ultimately be decided by a Workers’ Compensation Judge sympathetic to the fact that the injured employee was essentially gunned down while on the clock, doing a delivery, in the employer’s business interests, and otherwise not being able to contribute any significant information to the incident investigation, why it occurred, who was involved, and/or what the rationale for this incident was.

            In this particular case, the employer conducted a very thorough initial investigation, using its loss prevention specialist, to quickly interview everyone that the injured employee had worked with, as well as to interview the injured employee, prior to any formal claim for workers’ compensation benefits being asserted, and/or prior to any legal representation being secured by the injured employee.  It also involved a wider search and investigation into lifestyle issues that may have been confronting the injured employee,that may have influenced third party, girlfriends, lovers, friends, to choose a path of drastic retribution, as contrasted against the convenience of familial conversation, the brutally honest exchange of social offenses impactful on our humanity.

            And, yes, this particular claim had a multitude of factors impacting upon it influencing the decision by the employer to challenge the claim on grounds that it did not occur within the course and scope of employment, and that the injuries may have resulted from third party animosity breaching the boundaries of the course and scope of employment.

            No less true, a bigger question is how do you win the unwinnable case, when you begin with an event that seems drastic on its face, although leaking sufficient clues to point towards the events starting before the furniture delivery, coupled with the fact that the shooter aimed around a co-employee who stood closer to the shooter than the injured employee, with the assailant only aiming at the injured employee, and gutterly whispering “I am only here for the big guy”, there being very different physical attributions between the employee and the co-employee, who was not wounded in the incident, was never struck by any of the gunshots, and, after ducking for cover, was not confronted by the assailant, who continued only firing at the injured employee.

            And, yes, the claim investigation did reveal that the injured employee had talked with several co-employees, prior to the incident, that there was unsolvable tensions existing in his life, to include girlfriends, lovers, rent issues, with every potential witness being contacted, and with the witnesses presenting corroborating testimony to the Workers’ Compensation Judge, acting as factfinder, that the injured employee had personal conflicts in his life under personal conflicts in his life unrelated to his employment which, when coupled with the actual facts of the assault statement by shooter, shooter only aiming at the Claimant, than injured employee, shooter never aiming at the Co-Employee, all of which then became grounds for the Workers’ Compensation Judge to deny the compensability of the claim, a result then affirmed by the Appellate body, with both the Judge as factfinder, and the Appellate body as the Affirming Court, finding that   Pennsylvania’s “personal animus” defense did apply, that the assault, and related injuries were not injuries that occurred within the course and scope of employment, that the assault and injuries occurred as a result of a third party having personal animus towards the injured employee, a Decision which was rendered by both the fact-finding Judge and the Affirming Appellate Court as predicated upon both the statutory implication of Pennsylvania’s personal animus statute, as well as the individual facts of this particular claim and litigation.

            Yes, no doubt, this is a relatively rare case, hard to win, with it being no less true that a different Workers’ Compensation Judge may have found a different result, although our client rightly believes that this was the right decision based on the facts presented to the deciding Workers’ Compensation Judge.

            Obviously, very few workers’ compensation cases will potentially implicate compensability issues under the “personal animus” defense, although it is a defense that should be analyzed whenever there might be injuries involving interaction with third parties, particularly when the third parties have interacted with the injured employee before the alleged incident, and/or the alleged incident itself suggests third party interference, as well as potentially being a necessary evaluation when there are incidents between employees, be it horseplay, be it physical in-fighting, physical confrontations, etc.

            And then how do we, as defense law firm, representing the Employer and its Third Party Administrator, assess any credit or responsibility for the ultimate outcome of the Workers’ Compensation Decision, be it the denial of the workers’ compensation claim, beyond it being a moment of personal satisfaction, that a workers’ compensation case has been decided on the facts as applied to the legal standards, as well as the acute understanding that the outcome achieved in this particular case can only be achieved with the integration of employer investigation, Third Party Administrator continuing investigation, and support for defense recommendations made by defense counsel during the prosecution of the claim, and for all three parties, employer, administrator, and defense counsel coordinating their efforts for the benefit of the employer, to develop the necessary facts to establish a legitimate statutory defense to a claim involving irrefutable injuries.

ConnorsO’Dell LLC

            Trust us, we just get it!  It is trust well spent!

            We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout Pennsylvania.  We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.

            Every member of our Workers’ Compensation practice group is AV rated.  Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.

SAVE THE DATE

By

Kevin L. Connors, Esquire

To All Workers’ Compensation Practitioners and Clients:

The National Workers’ Compensation Defense Network is hosting its 2019 Fall Conference in Chicago, Illinois on September 26, 2019.

The NWCDN event is open to all NWCDN member firms and their invited guests.

The NWCDN never charges its guests for attendance at its Conferences.

The all-day Conference will be conducted on September 26, 2019 at the InterContinental Chicago Magnificent Mile in Chicago, Illinois located at 505 North Michigan Avenue, Chicago, Illinois.

Attaching a copy of the NWCDN’s Save The Date for its 2019 Conference, hotel reservations can be made by calling the hotel and mentioning the NWCDN Conference at 800-628-2112.

Registration for the event can be coordinated by contacting Carol Wright at Capehart Scatchard atcwright@capehart.com.

As always, NWCDN Conferences are intended to be educational, constructive, illuminating, and just plain good fun.

Also keep in mind that the NWCDN will be hosting a Cocktail Party on Wednesday, September 25, 2019.

The NWCDN would like to thank you for attending our Conference.

The NWCDN is a network of “Many Firms, One Purpose”, with all of our firms dedicated to defending workers’ compensation claims, for the protection of their clients, employers, insurers, and third-party administrators.

Join us in Chicago to meet our members and member firms!

ConnorsO’Dell LLC

Trust us, we just get it!  It is trust well spent!

We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout Pennsylvania.  We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.

Every member of our Workers’ Compensation practice group is AV rated.  Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.

Dear Client:

          So, which “I” do you pick, do you check the IME box, or do you check the IRE box?

            Starting over, if you are dealing with an open workers’ compensation claim, in which liability has been accepted by the Employer/Insurer/Administrator, with either the issuance of a Notice of Compensation Payable (“NCP”), or a Notice of Temporary Compensation Payable (“NTCP”), that has “converted” to a liability-accepting NCP, under which an obligation now exists for continuous payment of workers’ compensation benefits in the form of temporary total disability benefits, required to be paid to compensate for wage loss-producing disability, and medical compensation benefits, subject to reasonableness, necessity, and causal relationship to the accepted work injury benefits will have to be paid, absent one of the following claim-resolving events occurring:

(1)               The Claimant dies, compensation benefits terminate by operation of both death and loss;

(2)               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;

(3)               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;

(4)               The Claimant executes a Supplemental Agreement, perfecting either a termination, suspension, or modification of the Claimant’s workers’ compensation benefits;

(5)               The Claimant signs a Final Receipt (almost never used), under which the Claimant agrees that all compensation benefits have been paid;

(6)               The Claimant is deported by virtue of not being able to prove legal immigration status;

(7)               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,

(8)               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.

            Present tense, workers’ compensation benefits are now being paid on the claim, and if you are interested, as an Employer, or Administrator, or as a claims representative, to resolve the claim in avoidance of lifetime liabilities that might otherwise be imposed by the Pennsylvania Workers’ Compensation Act, 77 P.S. 1, et seq., what defensive resources are at your disposal?

            Given the blatant humanitarian nature of workers’ compensation statutes, effectuating the “grand bargain”, where the employee has statutorily sacrificed the right to sue for personal injury damages, requiring proof of negligence and/or fault, in exchange for the guarantee of compensation schedules, as to wage loss benefits, and medical compensation benefits, etc., the Pennsylvania Workers’ Compensation Act, as in almost all other states in the United States, provides Employers and their Insurers and Administrators with limited resources to challenge ongoing liability for workers’ compensation benefits, typically limiting the resources to the following challenges:

·         A claim denial, requiring the injured employee to prove compensability and disability;

·         The utilization review process, to challenge the reasonableness and necessity of ongoing medical treatment for the alleged work injury;

·         The independent medical examination, allowing the Employer/Insurer to request an IME of the Claimant, allowable every six months under Section 314 of the Act, typically focused on determining an injured employee’s recovery from the work injury, be it a full recovery, permitting a challenge to the ongoing entitlement to any workers’ compensation benefits being paid on the claimant, or to a recovery sufficient enough to allow an injured employee to return to work in some restricted-duty capacity, obviously subject to restricted-duty work either being available from the time of injury Employer, or alternative restricted-duty work being available, either through a Labor Market Survey (“LMS”) and/or Earning Power Assessment (“EPA”);

·         A job offer in some capacity, offered by the time of injury Employer, after medical evidence establishes that the injured employee is capable of performing some level of work, be it pre-injury work, and/or restricted-duty work, typically regarded as modified duty work, or light-duty work;

·         The unilateral right to suspend or modify compensation benefits, if the injured employee returns to work, with the time of injury Employer, or alternatively, the injured employee finds work on their own, such that the injured employee is again earning income/wages, whether at pre-injury wage rates, resulting in a suspension of compensation benefits, although medical remains open, or at wages less than pre-injury, resulting in a modification of the wage loss benefits, dependent upon wages actually earned, with compensation benefits converting to temporary partial disability benefits, subject to a 500 week cap, in the event of conversion of temporary total disability benefits to temporary partial disability benefits;

·         The Impairment Rating Evaluation, utilizing AMA Guides to determine the whole person impairment rating, limited to the accepted work injury, of an injured employee who has received 104 weeks of temporary total disability benefits, often resulting in litigation over the “conversion” from temporary total to temporary partial disability benefits.

            Historically, Pennsylvania has always been a form-intensive, wage-loss disability state, with the IRE concept first being introduced into the statute as a result of statutory reforms in 1996, initially establishing an impairment rating threshold, for conversion purposes, of any impairment less than 50% of the whole person, with that threshold reduced, in 2018, to a statutory threshold of 35%.

            We know, what the heck?

            So, when do you employ the IME versus the IRE?

            Obviously, the IME is your initial resource in defending the claim, as it can be requested, either in defense of a claim or claimant-filed petition, and/or it can be requested in an accepted claim, where benefits are being paid, with IMEs being allowed every 6 months, for purposes of determining an injured employee’s ability to return to work, and recovery from the accepted work injury.

            In the above context, the IME almost always occurs before the IRE, and the claim may likely be the beneficiary of multiple IMEs, before the IRE question even arises.

            If there has been no change in benefit status, meaning that there is no IME evidence of a full recovery, to include no IME medical evidence of a claimant being able to return to available work, whether actual or fictional, excusing the linguistic license, as fictional is either the, LMS, or EPA, still requiring acceptance and adoption by mostly claimant-oriented Workers’ Compensation Judges, for purposes of suspending or modifying compensation benefits, then the IRE is a useful resource for determining if the Employer/Insurer/Administrator has a basis for seeking conversion of the injured employee’s compensation benefits from total to partial disability, potentially resulting in the partial disability benefits being capped at the 500 week statutory limit.

            However, there are some claims where you, as claim-bending claims representative, have an IME of full recovery, or it establishes the basis for either actual or fictional work, and the issue of challenging  the claimant’s compensation benefit status involves some form of defense petition, either a termination, predicated on a full recovery medical opinion, or a suspension or modification, based upon medical evidence of the ability to perform less than pre-injury work, and you have paid 104 weeks of temporary total disability benefits, potentially entitling you to request an IRE with the focused purpose of converting total disability to partial disability, then you have to ask yourself, “do I feel lucky, well do you?”

            Before you throw all your claims muscle against the IRE box the question arises as to how Workers’ Compensation Judges balance an IME medical opinion of a full recovery against an IRE medical opinion establishing some percentage of impairment for an accepted work-related injury?

            Since there are very few IREs that come back with a 0% impairment rating determination, essentially because it is extremely difficult to secure a 0% impairment rating in reliance upon the AMA Guides to impairment rating, absent an injured employee being in better physical shape and health than they were pre-injury, and that in 30 years of defending workers’ compensation claims, we have never witnessed such an occurrence, then the potential exists that the IRE establishing any impairment percentage, can potentially undermine a Workers’ Compensation Judge’s assessment as to the merits of medical evidence, through the IME medical report and IME’s doctor’s deposition that the injured employee has, in fact, fully recovered from the accepted work injury, the obvious footnote being that Termination Petitions, are rarely granted by Workers’ Compensation Judges, as the Termination Petition burden of proof is regarded as perhaps the highest burden of proof required for any petition under the Pennsylvania Workers’ Compensation Act, begging the question as to the next of requesting the IRE?

            Prove us wrong?

            So, back to that “do you feel lucky?” question the truth is, that it is probably a 100% guarantee that an IRE establishing any percentage of impairment while a defense petition is being litigated on an IME medical basis, will result in a denial and dismissal of the Employer-filed petition, as Workers’ Compensation Judges view the examination conflict, between an IME and an IRE, as a claim-defeating imbalance.

            Keep in mind, given the humanitarian nature of workers’ compensation statutes, as well as general claimant-inflected orientation unanimously maintained by Workers’ Compensation Judges they, however noble or not, are looking for ways to find weaknesses in Employer-filed petitions, begging the question of why make it easy for them?

            Perhaps the better recommendation, is to continue aggressively pursuing the termination, or other Employer-filed petition, while filing your Request for Designation of an IRE Physician, for purposes of being bound by the IRE physician designation requesting, for potential future conversion of the claimant’s compensation benefits from total to partial disability.

            And the only reason why we did not say that at the outset of this missive, is that we really love commas, as well as conclusions.

ConnorsO’Dell LLC

            Trust us, we just get it!  It is trust well spent!

            We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout Pennsylvania.  We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.

            Every member of our Workers’ Compensation practice group is AV rated.  Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.

         So you are an Employer, by definition under most workers’ compensation statutes a “master”, with your employees, likewise being designated as “servants”, to fuel the pecuniary fiefdom that you propagate.

              Yes, in business, for profit, with associated overhead for business expenses, to include payroll, benefits, yadda, yadda.

            Of course, for your protection, or for that of whatever corporation you have designed and constructed, you have procured the necessary insurance coverages, to include coverage for general liability purposes, potentially meaning whatever, obviously subject to contractual interpretations, as well as, of course, workers’ compensation insurance coverage, in order that your company is not personally or corporately liable for injuries sustained by employees in the course and scope of their employment, in the course of which they are expected to be performing associated tasks commensurate with your business or your corporation.

            You have to ask yourself is every allegedly employee-sustained injury covered by workers’ compensation statutes, and, by extension, workers’ compensation insurance coverage, requiring a threshold analysis as to whether the alleged injury has occurred within the four corners of what we consider the course and scope of employment.

            And the answer is, sometimes yes, as well as sometimes no, beyond obviously working with your broker, your insurance carrier, and either in-house or extraneous counsel.

            Let’s begin with some basics.

            Workers’ compensation statutes have been in place since a horrific accident in New York in 1911, the Triangle Shirtwaist Fire, resulting in 146 workers dying when trapped in a burning factory, with Pennsylvania’s workers’ compensation statute being enacted in 1915, and then evolving over several structural and procedural reforms, the last of which were in the 1990s, reforming indemnity (wage loss) and medical compensation benefits. 

            Having survived reforms, both positive and negative for Employers and insurance carriers, the purpose of workers’ compensation statutes is obviously humanitarian, as well as to act both as a safety net for injured employees, and to serve as a “grand bargain”, for businesses, Employers, and by extension, insurance carriers, as the exchange is that employees surrender their right to sue for civil or personal injury damages, with Employers being given the certainty of scheduled losses for both wage loss and medical benefits.

            So when does the analysis of “course and scope of employment” begin?

            Well, typically, at the first report of injury, as the Employer, and its insurer gather information regarding the claim, with the following considerations being necessary to implicate the occurrence of a work-related injury, resulting in wage loss disabling injuries, 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; and,

·         That the Claimant is not fully recovered from the alleged work injury.

            Sounds simple enough.

            If it were that simple, no one would be reading this.

            Case in point, being one recently defended by our firm, involving an employee showing up for work early, routinely doing so until one day when the employee claimed an injury, while not actually performing any work for the Employer, and not even being scheduled to work at that time.

            From the Claimant perspective, the argument is, well, I was at work, so it must be work-related.  If that were all that there was to it, with the self-insured or insured, somebody might be writing that employee a check, and paying medical bills.

            It not only does not work like that, it is not supposed to work like that, and it should not work like that.

            It should require an injury occurring while an employee is actually performing work or services for the Employer that causes or contributes to a physical, psychological, or occupational injury disabling the employee from being able to continue performing that work or service, at which point, logically, there should be mechanisms and procedures to protect both employee and Employer from the potential liability imposed.

            Merely being present at a work location does not mean that you are actually working, and should not mean that you are, therefore, entitled to compensation for an accident resulting in injury.

            The caveat to that storyline is that there might well be other liabilities that the Employer is sensitive to incurring, particularly potential liability for personal injury damages, not subject to a schedule, or to any dollar limitation, although obviously requiring evidence of negligence, fault, and cause.

            So if the employee is injured when not scheduled to work, is not actually performing any work, is not scheduled to be paid when allegedly injured, does the employee have a right to workers’ compensation benefits, and/or is the Employer liable under comp law?

            Well, it depends upon what the meaning of “work” is!

            In our view, popular or not, although legally sound, is that, no, the employee is not working, and that the injury is, therefore, not compensable under workers’ compensation law, with there being zero guarantee that the allegedly injured employee will accept the logic of our analysis, particularly when counseled by representation vested in the contingent fee recovery that necessarily requires the employee to pursue and recover compensation benefits.  Absent other considerations, we would recommend a vigorous defense calculated on denying and dismissing the injury claim.

            Concern about liabilities not subject to a schedule or statute might actually result in Employers considering acceptance of an otherwise non-work related injury, in avoidance of potential personal injury liability.

            We get it, that makes business sense, as hard as it is to swallow such a bitter pill.

            Anyone actually following this?

            The point being that the mere fact that someone is an employee, that you are an Employer, and that your employee is claiming injury, does not, in and of itself, mean that the alleged injury is either work-related, and/or has occurred within the course and scope of employment.

            Seems logical, although logic is not always the predicate for making decisions regarding claim disposition and resolution.

            And if looking for the easy answer, it is not within reach.

            And so what do we do?

            Well, we serve, we protect, we defend, and we seek out and expose claim-defying facts to insulate your company, your business, your commercial purpose from liability.

            Trust us; we completely understand how important business continuity and risk management is to a successful company, corporation, place of employment, as well as the practical exercise in the power of work, and experience. 

            We do this with grace, dignity, respect, and the utmost professionalism.

            And, no less importantly, we do it because it needs doing!

            So if in need of defense counsel in Pennsylvania, you know who to call!

ConnorsO’Dell LLC

            Trust us, we just get it!  It is trust well spent!

            We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout Pennsylvania.  We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.

            Every member of our Workers’ Compensation practice group is AV rated.  Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.

                      NWCDN POLL ON EMPLOYER SET-OFFS AND LIEN RECOVERY RIGHT 

By

Kevin L. Connors, Esquire

     As the Pennsylvania Member Firm for the National Workers’ Compensation Defense Counsel Network, our Group, from time to time, provides national guidance to Employers, Insurers, and Third-Party Administrators, regarding how different states and jurisdictions deal with issues specific to the administration of workers’ compensation claims.

            Recently, the NWCDN was asked by a client to poll its State Members, concerning Employer Set-Off, for alternative disability benefit sources, to include short-term disability benefits, long-term disability benefits, severance benefits, and unemployment compensation benefits.

            Since some of you might be handling jurisdiction outside the four corners of Pennsylvania state lines, we are providing the NWCDN’s national service of how individual states deal with these issues.

            Should you have questions about any individual state, please do not hesitate to contact us, as we can then serve as a conduit to connect you with a Member State’s defense counsel, as all Member State Firms maintain A+ rating with Martindale-Hubbell, as well as maintaining requisite certifications in individual states to specialize as workers’ compensation attorneys. 

            The Honor is Ours!

ConnorsO’Dell LLC 

Trust us, we just get it!  It is trust well spent! 

We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout Pennsylvania.  We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.

Every member of our Workers’ Compensation practice group is AV rated.  Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.

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:

   

1. The Claimant dies, compensation benefits terminate by operation of both death and loss;

2. 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;

3. 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;

4. The Claimant executes a Supplemental Agreement, perfecting either a termination, suspension, or modification of the Claimant’s workers’ compensation benefits;

5. The Claimant signs a Final Receipt (almost never used), under which the Claimant agrees that all compensation benefits have been paid;

6. The Claimant is deported by virtue of not being able to prove legal immigration status;

7. 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,

8. 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 90^th 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 90^th 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 90^th 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 93^rd 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 90^th 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 90^th 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 90^th 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

    

   Trust us, we just get it!  It is trust well spent!

    

   We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout Pennsylvania.  We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.

    

   Every member of our Workers’ Compensation practice group is AV rated.  Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.