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WHEN LATE IS NOT TOO LATE
By Kevin L. Connors, Esquire
“If you are going to do something tonight that you’d be sorry for tomorrow morning, sleep late”, sayeth Henny Youngman.
This is the story of the “Late Answer” to a Claim Petition that was not, just that, late.
In Patrick Washington v. WCAB (National Freight Industries, Inc.), the Commonwealth Court affirmed the Decisions of the Appeal Board and Workers’ Compensation Judge, denying the Claimant’s Claim Petition, in the course of which both the WCJ and Appeal Board dismissed Arguments by the Claimant that the Employer/Insurer’s Answer to a Claim Petition had been filed late, such that the Claimant, through counsel, sought to enforce a “Yellow Freight” Motion, under Section 416 of the Act.
Section 416 of the Act, sets forth:
“Within twenty days after a copy of any Claim Petition or other Petition has been served upon an adverse party, he may file with the department or its Workers’ Compensation Judge an Answer in the form prescribed by the department.
Every fact alleged in a Claim Petition not specifically denied by an Answer so filed by any adverse party shall be deemed to be admitted by him. But the failure of any party or of all of them to deny a fact alleged in any other Petition shall not preclude the Workers’ Compensation Judge before whom the Petition is heard from requiring, of his own motion, proof of such fact. If a party fails to file an Answer and/or fails to appear in person or by counsel at the hearing without adequate excuse, the Workers’ Compensation Judge hearing the Petition shall decide the matter on the basis of the Petition and evidence presented.”
Under a legion of Decisions involving Late Answers, and what to do with them, the controlling rule for Late Answers has always been, underYellow Freight v. WCAB (Madara), 423 A.2d 1125 (Pa. Cmwlth. 1981), that an Employer’s failure to file a timely responsive Answer to a Claim Petition, precludes the Employer from raising affirmative defenses to the Claim Petition, effectively resulting in a default being taken against the Employer, with all allegations in the Claim Petition being deemed admitted before the WCJ, although an unexcused Late Answer only admits “facts”, and does not admit any conclusions contained within the Claim Petition, with the fact admissions only being imposed as of the last date that the Answer could have been filed, underBensing v. WCAB (James D. Morrissey), 830 A.2d 1075 (Pa. Cmwlth. 2003).
The caveat to the above rule, is that when a Claim Petition alleges ongoing disability, a rebuttable presumption exists that the disability continued beyond the last day that the Answer could have been filed, requiring the Employer, in that scenario, to present rebutting evidence, in order to overcome the presumption of ongoing disability. Chik-Fil-A v. WCAB (Mollick), 792 A.2d 678 (Pa. Cmwlth. 2002).
So what is the big deal about the Washington ruling by the Commonwealth Court, a ruling that the Court issued on March 4, 2015.
Washington involved a Claimant employed by NFI, our client, who had worked as a Tractor Trailer Driver from 2007 through February of 2011.
In February 2009, the Claimant had been involved in an automobile accident unrelated to his employment with NFI, with the Claimant then pursuing a personal injury lawsuit against the driver of the vehicle that rear-ended the Claimant’s vehicle.
After missing a few days of work after the 2009 accident, the Claimant actually returned to work in a full-duty capacity with NFI, again returning to work as a Tractor Trailer Driver.
In 2011, the Claimant then stopped working for NFI, contending that he was no longer able to do his job because of pain in his shoulders, arms and hands, the same injuries, bizarrely, that the Claimant had alleged occurred as a result of the 2009 motor vehicle accident.
Undeterred by that coincidence, the Claimant filed a Claim Petition against NFI, alleging that he was entitled to recover workers’ compensation benefits as of the date that he stopped working for NFI, with the Claimant seeking both indemnity and medical compensation benefits.
The theory behind the Claimant’s Claim Petition against NFI was a repetitive trauma/aggravation theory, that the Claimant’s repetitive use of his neck, shoulders, arms, and hands, resulted in the Claimant developing an aggravation of his pre-existing accident-related injuries, with the Claimant alleging that he was now disabled by the alleged aggravation, such that he claimed entitlement to workers’ compensation benefits.
However, the Claim Petition filed by the Claimant contained an incorrect address for the Employer, as the Claimant’s Petition alleged an address of 72 West Park Avenue, in Vineland, New Jersey, although the Employer’s correct address was 71 West Park Avenue, Vineland, New Jersey.
After the Claimant’s Claim Petition was assigned to a WCJ, the Employer, yes through our firm, filed an Answer to the Petition, although it was forty-three (43) days after the Bureau had issued a Notice of Assignment, assigning the Claimant’s Claim Petition to a Workers’ Compensation Judge.
Over the course of Evidentiary Hearings held before the WCJ, the Honorable Joseph Stokes, the Claimant continued to argue that the Employer’s Answer was late, and that the factual allegations in the Claim Petition should be deemed admitted underYellow Freight, with the Claimant seeking an Order admitting the factual allegations set forth in the Claim Petition.
Although the Claimant referred to having made several Motions to impose the Draconian burden ofYellow Freight, the record contained no specific reference to a formal Motion being filed by the Claimant, nor did the issue appear to have been raised on the record at several hearings, at least until the final hearing before the Workers’ Compensation Judge, with the WCJ directing the parties to Brief the issue of whether the Employer’s Answer was, or was not, untimely, absent the parties agreeing to the issue.
Although there is no indication that the Claimant ever Briefed that issue for the WCJ, there was a Stipulation placed on the record that the Employer’s address was not the address on the Claim Petition, with the WCJ ultimately issuing a Decision denying the Claimant’s Claim Petition, finding that the Claimant’s testimony, as well as that of his Medical Expert, Dr. Scott Jaeger, was credible in terms of establishing that the Claimant had symptoms and injuries from his non-work-related accident, with the WCJ rejecting the Claimant’s testimony, and that of his Medical Expert, as to whether the Claimant’s work duties for the Employer, from 2009 through 2011, resulted in the Claimant having an aggravation of his non-work-related conditions.
So holding, the WCJ concluded that the Claimant had failed to establish his burden of proving that he was suffering from a work-related disability, with the WCJ never formally ruling on the Claimant’s Late Answer contention.
Appealing to the Appeal Board, the Claimant argued that the WCJ’s Decision contained a legal error, in failing to rule on whether the Employer’s Answer was late, with the Appeal Board affirming the WCJ’s denial of the Claim Petition, in the course of which it held that the Claimant had failed to show that the Employer’s Answer was late, as the Claim Petition had not been mailed to the Employer’s correct address, with the Appeal Board denying the Claimant’s request to remand the case back to the WCJ, to submit additional evidence concerning the address to which the Bureau had mailed the Claim Petition.
Addressing the Claimant’s Late Answer Appeal, the Commonwealth Court held that the Claimant had failed to prove that the Employer’s Answer was untimely, as it was undisputed before the WCJ, that the address used by the Bureau when mailing the Petition to the Employer was not the Employer’s correct address.
Applying the common law “mailbox rule”, akin to “the check is in the mail”, as well as the mandates of the Act, both of which dictate that a proof of mailing raises a presumption that the mailed item was received only if it is shown that the item was mailed to the parties’ correct address, the Appeal Board affirmed the WCJ’s Decision. Section 406 of the Act: In Re: Rural Route Neighbors, 960 A.2d 856 (Pa. Cmwlth. 2008).
Sweetly stated, the “common law ‘mailbox rule’ raises a natural presumption that a letter will reach its destination through due course of mail when it is deposited in the Post Office with a properly-addressed letter with pre-paid postage”, underStorer v. WCAB (ABB), 784 A.2d 829 (Pa. Cmwlth. 2001), in which the Commonwealth Court had held that a Claimant’s testimony that he mailed a letter, did not establish that notice was given where his testimony did not show,inter alia, “whether the letter was properly addressed”.
In Washington, the Commonwealth Court held that “under the Act, only a mailing to the parties’ correct address constitutes service on the date of mailing.” Conversely, where a Claim Petition is mailed to an incorrect address, an Answer is not untimely simply because it was filed more than twenty days after that mailing, and Section 416 of the Act does not bar the Employer from denying and fully contesting all allegations of the Claim Petition, absent other evidence or proof that the Claim Petition was received more than twenty days before the Answer.
In Washington, the Bureau’s mailing to an incorrect address did not constitute service as to the date of mailing, and, therefore, there was no evidence submitted to the WCJ that the Employer had received the Claim Petition more than twenty days before filing its Answer, thereby allowing the WCJ to decide the Claim Petition on its merits, without deeming that any facts alleged in the Claim Petition had been admitted by the Employer.
An alternative Argument advanced by the Claimant was further rejected by the Commonwealth Court, in as much as the Claimant contended that the error in the mailing address of the Claim Petition should have been disregarded, as the Claimant alleged that the address to which the Claim Petition was addressed was a property allegedly owned by an Affiliate of the Employer, with the Commonwealth Court rejecting Claimant’s Argument for two big reasons, one being that no evidence was presented to the WCJ to prove the Argument being made by the Claimant, further rejecting the Argument on grounds that the service of a document on an address owned by an Affiliate of a Corporation, does not, in and of itself, constitute service on the Corporation itself underDelaware Valley Surgical Supply Company v. Geriatric & Medical Centers, 299 A.2d 237 (Pa. 1973).
The mere fact that one piece of mail sent to an erroneous address successfully reached a party after it knew that its mail was being sent to that address does not, again, in and of itself, support an inference that all mail sent to the erroneous address was promptly received by that party.
What are the takeaways from the Washington ruling?
First, and most obvious, is the takeaway of how well this case was defended by our firm.
No less true, without question, counsel defending workers’ compensation claims are never fans of the “Late Answer” Claim Petition, as the slippery slope of defending workers’ compensation claims only becomes that much steeper, when the issue of a potential Late Answer also becomes yet another element that needs to be defended in the course of seeking to prevent a claim from being accepted.
This becomes even more problematic in cases where the Employer has real defenses to the Claim Petition, with the most dramatic defenses being:
· Statute of Limitations;
· Notice Issues;
· The Claimant was not employed by the alleged Employer;
· The Employer is not insured by the Insurer listed on the Notice of Assignment;
· The Claimant is not disabled;
· The Claimant has no evidence to support any element of his claim;
· The alleged injury did not occur within the course and scope of employment;
· &nnbsp; The alleged injury was caused by non-work-related conditions; and/or,
· The Employer/Insurer have been incorrectly designated.
An obvious takeaway is that an address is either correct, or incorrect, and that there is no presumption of receipt of an item that is improperly addressed, even if the mailed item is not returned to the Bureau, or is sent to an address physically close to the Employer’s actual location.
Obviously, this is an important Decision for Employers and Insurers, and we certainly encourage its utilization in the course of defending Late Answers to Claim Petitions.
A link to the Commonwealth Court’s Decision is included here http://www.pacourts.us/assets/opinions/Commonwealth/out/1070CD14_3-4-15.pdf?cb=1
Credit for winning this case for our client goes to Jeffrey Snyder, a Partner in our Workers’ Compensation Practice Group.
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.