COMMONWEALTH COURT CASES
JULY-AUGUST 2008
CLAIMANT MUST REACH MMI BEFORE IMPAIRMENT CAN BE RATED
The employer in Combine v. W.C.A.B. (National Fuel Gas Distribution Corporation), No. 539 C.D. 2008, had the claimant undergo an IRE and thereafter filed a modification petition seeking to change the claimant’s disability status from total to partial. The claimant filed an answer asserting that a modification of benefits was not appropriate as he had not reached MMI at the time of the IRE.
The WCJ granted the modification petition and the Appeal Board affirmed.
In addressing the claimant’s argument, the Court suggested that under Section 306(a.2), the degree of impairment is to be determined based upon an evaluation by a physician using the most recent edition of the AMA’s “Guides to the Evaluation of Permanent Impairment.” The Court noted that the most recent edition of the Guides, indicated that impairment can only be rated after MMI has been reached. The Court then noted that the Guides define MMI “as a status where patients are as good as they are going to be from the medical and surgical treatment available to them.”
The Court held that in light of the AMA Guides, the IRE physician must first determine whether the claimant is at MMI, prior to determining a claimant’s impairment level. Thus, the Court reversed the WCJ’s granting of the modification petition and the claimant was returned to total disability status because there was no determination that he had reached MMI at the time of the IRE.
INSURER DID NOT WAIVE RIGHT OF SUBROGATION IN C&R EVEN THOUGH THE C&R SUGGESTED THAT THERE WAS NO LIEN OR POTENTIAL LIEN
In Gorman v. W.C.A.B. (Kirkwood Construction), 952 A.2d 748 (Pa. Cmwlth. 2008), the parties entered into a C&R on January 24, 2002. As for Paragraph #11 of the C&R, it had “No” checked as to the question of whether or not there was a lien or a potential lien for subrogation.
In October of 2002 claimant filed a third party action and in December of 2004 claimant received a settlement. In January of 2005 the insurer filed a review petition seeking a credit for the money the claimant received from the third party settlement.
The claimant testified that at the time he entered into the C&R, he had not retained an attorney to file a third party action and that the third party action was not filed until months after the C&R was approved. Meanwhile, the insurer presented testimony from the claims adjuster who handled the file at the time of the C&R, who stated that he was never informed of the possibility of a third party action at the time that the C&R was entered into. The claims adjuster who was handling the file in 2004 stated that the claimant’s attorney contacted him at the time of the third party settlement and asked if the insurer had waived its right to assert its subrogation lien. The adjuster stated that the file contained no information that the insurer had waived its right to assert the lien.
The WCJ credited the insurer’s witnesses and set aside the C&R on the basis that when it was entered into, there was a mutual mistake upon the material and substantial issue of the existence of the subrogation lien. The WCJ granted the insurer’s request for a credit.
Both parties appealed and the Appeal Board held that the WCJ erred in setting aside the C&R because the “mistake” was not in existence when the C&R was entered into. However, the Appeal Board determined that the insurer did not waive its right to assert its subrogation lien and the Appeal Board remanded the matter to the WCJ to determine the amount of the credit. Upon remand, the WCJ found that the insurer was entitled to $71,191.00 in reimbursement. The Appeal Board affirmed.
Before Commonwealth Court, the claimant argued that the C&R resolved all issues, including existing and future liens. The claimant argued that it would be a dangerous precedent to allow an insurer to set aside a C&R three years after it was approved.
The Court acknowledged that a workers’ compensation insurer could waive its right of subrogation but the Court held that the evidence failed to prove that the insurer released or waived its subrogation rights when the C&R was entered into by the parties. Thus, the claimant was required to reimburse the insurer in the amount of $71,191.00.
CLAIMANT WITH LOSS OF USE OF BOTH HANDS ENTITLED TO RECEIVE TTD EVEN THOUGH HE RETURNED TO WORK
In Allegheny Power Service Corporation and Accordia Employer Services, Inc. v. W.C.A.B. (Cockroft), No. 242 C.D. 2007, the claimant’s right arm was amputated just below the elbow and he lost the left 3rd and 4th fingers of the left hand.
The claimant began receiving temporary total disability benefits, but returned to work and the employer unilaterally ceased payment of his benefits. Claimant filed reinstatement/penalty petitions. The employer’s argument was that it did not owe total disability benefits, because of the return to work. Meanwhile, the claimant looked to Section 306(c)(23) of the Act, which creates a statutory presumption, unless the Appeal Board determines otherwise, of total disability for individuals who suffer specified bilateral losses.
The WCJ concluded that Section 306(c)(23) obligated the employer to pay total disability benefits and benefits were reinstated. The employer then filed a modification petition seeking a determination that claimant was not totally disabled within the meaning of Section 306(c)(23) since he had returned to work earning wages.
The WCJ denied the modification petition, finding that the claimant remained totally disabled and the WCJ concluded that the employer was not entitled to a credit for claimant’s post-injury wages. The employer appealed, and the Appeal Board affirmed.
Before Commonwealth Court, the employer argued that Section 306(c)(23) does not mandate an award of total disability benefits without considering evidence of a claimant’s earning power. The Court rejected this argument, holding that Section 306(c) sets forth the compensation to be paid to a claimant based on the extent of his/her injuries and not on the degree of disability as evidenced by earning power. The Court concluded that the payment schedule set forth in Section 306(c), including Section 306(c)(23), is the exclusive remedy set forth for the specified injuries set forth therein.
The Court acknowledged that Section 306(c)(23) does confer discretion upon the Appeal Board to determine whether the application of the statutory presumption of total disability is warranted. While the Court agreed that the Appeal Board has such discretion, the Court concluded that the Appeal Board, in Mr. Cockroft’s situation, did not abuse its discretion in determining that he remained totally disabled.
In a strong dissent, it was set forth that the majority erred in holding that the Appeal Board had the discretion to determine that the claimant was totally disabled without regard to, or in spite of, his earning capacity. Instead, the dissenters noted that Section 306(c)(23) indicates that benefits under the Section are to be paid consistent with Section 306(a), with Section 306(a) containing language that nothing in the Act required payment of total disability benefits when a claimant was employed or was receiving wages. According to the dissenters, when a bilateral loss claimant is employed and receiving wages, the Appeal Board’s discretion must be exercised consistent with the language in Section 306(a), meaning that total disability benefits cannot be paid when a claimant was employed or receiving wages.
FIREFIGHTER ENTITLED TO STATUTORY PRESUMPTION THAT HEART DISEASE WORK-RELATED
The claimant in Repash v. W.C.A.B. (City of Philadelphia), No. 114 C.D. 2008, worked as a firefighter for the city for 39 years. In December of 2001 he began experiencing chest pains and in January of 2002 he underwent an angioplasty. In February of 2004 the claimant filed a claim petition under Section 108(o), averring that he suffered from a work-related occupational disease, in the nature of heart disease.
A WCJ denied the claim petition finding that the claimant failed to present medical evidence that his cardiovascular incident was related to exposure to smoke as a firefighter. The WCJ made no findings regarding the claimant’s ability to work.
The Appeal Board remanded, requiring the WCJ to apply the “Firefighters Presumption” of Sections 301(e) and 108(o). According to Section 301(e) if it is shown that an employee was employed in an occupation in which the occupational disease is a hazard, it shall be presumed that the employee’s occupational disease arose out of the employment, but the presumption was not conclusive. Meanwhile, Section 108(o), indicates that “occupational disease” shall include diseases of the heart and lungs resulting in disability or death after four or more years of service in firefighting, caused by extreme overexertion in times of stress or danger or by exposure to heat, smoke, fumes or gases, arising directly out of the employment of the firemen.
Upon remand, the WCJ applied the Firefighters Presumption and concluded that the claimant had established a compensable injury occurring on January 28, 2002, the date of his angioplasty.
The City appealed, and the Appeal Board indicated that it should not have remanded the case, because the claimant’s treating doctor never testified that the claimant was disabled. Thus, the Appeal Board ordered that the claim be denied.
Before Commonwealth Court, the claimant argued that the Appeal Board erred by ignoring the WCJ’s finding in the remanded decision that he satisfied all of the requirements of the Firefighters Presumption. Commonwealth Court agreed, holding that the Appeal Board erred in ignoring the WCJ’s finding that claimant’s heart disease disabled him from firefighting. Thus, the claim petition was granted and benefits were awarded as of January 29, 2002 and continuing.
CLAIMANT’S TESTIMONY THAT HER DOCTOR WANTED HER TO REST NOT SUFFICIENT TO PROVE DISABILITY
In Albert Einstein Health Care v. W.C.A.B. (Stanford), No. 2189 C.D. 2007, the claimant filed a claim petition alleging a back injury on July 2, 2002. The evidence showed that the claimant worked until October 21, 2002 and she first sought medical treatment when she went to her PCP on October 24, 2002. The claimant did not present testimony from her PCP but instead presented testimony from a doctor who first treated her in December of 2003.
The WCJ granted the claim petition finding that the claimant suffered an injury in 2002 but the WCJ found that the claimant could not prove disability until December of 2003. The Appeal Board affirmed the granting of the claim petition, but modified the WCJ’s decision as to the disability date—concluding that the claimant was totally disabled as of October of 2002, based on the claimant’s credible testimony.
The employer appealed on the basis that the Appeal Board erred in changing the disability date to October of 2002. In assessing the issue, the Court noted that the only evidence that the claimant was disabled in October of 2002 was her own testimony. As for that testimony, the claimant stated that as of October 22, 2002 her PCP told her that she “needed to get some rest.” The Court concluded that the claimant’s testimony was not sufficient to prove that she was disabled as of that date. Thus, the Court concluded that it was appropriate to deny disability benefits until the date that the claimant was seen by the medical expert who actually testified on her behalf.
CLAIMANT PROVIDED TIMELY NOTICE OF HEARING LOSS
In Crompton Corporation v. W.C.A.B. (King), No. 2142 C.D. 2007, the question involved whether the claimant met the notice requirements with respect to his hearing loss claim.
The claimant worked for Crompton from 1965 through 2006. On April 2, 2004 the claimant filed a claim petition alleging a compensable hearing loss. The evidence demonstrated that the claimant was examined by Dr. Joseph Turner on May 7, 2002 and at that time, the claimant completed a new patient intake sheet and he indicated that his hearing problem was related to “workers’ compensation.” The employer argued that the claimant knew or should have known that he had a work-related hearing loss as of May 7, 2002.
The WCJ rejected this argument and the Appeal Board affirmed.
The employer argued to Commonwealth Court that the WCJ committed an error of law by applying an inappropriate standard to determine the triggering events for the notice requirements of the Act. Specifically, the employer argued that under Section 311 of the Act, the date of injury is the date on which a claimant knows or should have known that his hearing loss was compensable and that the hearing loss was work- related. The employer then argued that the claimant knew or should have known of a compensable hearing loss on May 7, 2002 and there was no evidence that he provided notice of the hearing loss with 120 days of May 7, 2002 as required by Section 311.
The Court rejected this argument, holding that the claimant did not know his hearing impairment was work-related, until he received a February 27, 2004 report from Dr. Turner informing him that his hearing loss was work related. As for the claimant’s “belief” in 2002 that his hearing loss was work-related, the Court stated that such a belief, without more, did not rise to the level necessary to begin the running of the statute of limitations under the Act. The Court suggested that the knowledge or suspicion of a significant hearing loss and a possible causal relationship to employment, is not sufficient evidence of a compensable hearing loss. Thus, the Court concluded that the claimant provided timely notice of his hearing loss.
HOME HEALTH NURSE IN COURSE OF EMPLOYMENT AT TIME OF MOTOR VEHICLE ACCIDENT
The claimant in Jamison v. W.C.A.B. (Gallagher Home Health Services), No. 399 C.D. 2008, was employed by Gallagher as a home health nurse and was involved in a motor vehicle accident while traveling to a client’s home. The claimant filed a claim petition and the employer denied that the claimant was in the course of her employment at the time of the accident. The WCJ agreed and concluded that the claimant was not in the course and scope of her employment because she was not a traveling employee. The Appeal Board affirmed.
Before Commonwealth Court, the claimant challenged the WCJ’s conclusion that she was not a traveling employee. Whether or not the claimant was a traveling employee was important, because what constitutes “scope and course of employment” for traveling employees is broader than that for stationary employees. The Court stated that when a traveling employee is injured after setting out on the business of the employer, it is presumed that she was furthering the employer’s business at the time of the injury but the employer can rebut this presumption by proving that the employee’s actions were so foreign to, and removed, from the usual employment that they abandoned their employment.
The Court looked to several factors when determining if someone is a traveling employer: whether the job duties included travel; whether the claimant worked on the employer’s premises; and whether the claimant had a fixed place of work. In reviewing Ms. Jamison’s circumstances, the Court made note of the fact that she was required to work in clients’ homes and to do so she had to travel to those homes. The Court also noted that the claimant did not work on the employer’s premises nor was she required to go to the employer’s office before or after any visits and that the claimant did not have a fixed place of work. Under the circumstances, the Court concluded that the claimant was a traveling employee and was in the course and scope of her employment with Gallagher Home Health at the time of the accident.
Additionally, the claimant also worked for AA Mortgage and PRN Health Services at the time of the accident. Gallagher Home Health argued that because the claimant worked for these two other companies, there was no way of knowing which company she was working for at the time of the accident. The Court reviewed the WCJ’s findings and concluded that because the WCJ found that there was no proof that the claimant was performing work for the other two companies at the time of the accident, there was no evidence that the claimant had abandoned her employment with Gallagher Home Health.
CLAIMANT COULD PURSUE REINSTATEMENT EVEN THOUGH BENEFITS HAD BEEN TERMINATED
The claimant in National Fiberstock Corporation (Greater New York Mutual Insurance Company) v. W.C.A.B. (Grahl), No. 1456 C.D. 2007, suffered a work injury in 1992 that was described as “numbness in fingers and hand with pain in right wrist.” In 1997 the employer filed a termination petition which was granted by way of a WCJ’s decision issued on March 27, 2002.
While the termination petition was being litigated the claimant underwent carpal tunnel surgery in May of 2000. In January of 2004 the claimant filed a penalty petition based on the employer’s failure to pay for the carpal tunnel surgery. The employer finally paid the bill in March of 2004 but in January of 2005 the penalty petition was granted finding that the employer’s 42-month delay in paying the surgery bill was a violation of the Act. The employer was ordered to pay 50% of the surgery bill.
The employer did not pay the penalty and in August of 2005 the claimant filed a second penalty petition. At the same time the claimant filed a reinstatement petition, averring that she suffered a recurrence of her work related disability on January 3, 2005.
The WCJ reinstated the claimant’s benefits and awarded a 50% penalty for the employer’s delay in complying with the previous order directing it to pay a 50% penalty. The Appeal Board affirmed.
The employer argued to Commonwealth Court that the reinstatement petition was barred by res judicata. Specifically, the employer argued that during the reinstatement proceeding, the claimant testified that she continued to have the same symptoms since 1994 and because the claimant was found to have had fully recovered as of August of 1997, the claimant was attempting to re-litigate the previously granted termination petition.
The Court rejected the res judicata argument, holding that in a reinstatement proceeding the claimant had to prove that the original work injury had recurred and that her physical condition has changed since the prior decision. The Court noted that the termination petition addressed the claimant’s condition in October of 1997 while the claimant’s reinstatement petition addressed her condition in January of 2005; therefore, the Court concluded that res judicata did not apply because there were two different issues involved in the litigation of the two petitions.
The employer also argued that there was no evidence that the claimant’s condition had changed since October of 1997, the date of its termination, because the claimant’s testimony during the reinstatement proceedings was that she had experienced symptoms since 1994. The Court agreed that the claimant testified that she had symptoms since 1994 but she also testified that her carpal tunnel syndrome worsened in 2002 and by 2004 the symptoms had expanded to the entire hand. Thus, the Court was convinced that the claimant had proven a worsening of her condition since October of 1997.
Finally, the employer argued that the claimant’s medical evidence was not legally competent, because her medical expert did not examine her claimant until 2005 and he admitted that he could not comment on her condition in 1997. The Court acknowledged this, but the Court noted that the claimant’s doctor had assumed that the claimant had fully recovered in 1997, and he then opined that the carpal tunnel condition had recurred because it was present in 2005, when he saw first her. Thus, the Court upheld the granting of the reinstatement petition.
DOCTOR TRIED TO PROVIDE RECORDS TO URO WITHIN 30 DAYS OF REQUEST SO UR COULD PROCEED
In HCR Manorcare v. W.C.A.B. (Bollman), 951 A.2d 1242 (Pa. Cmwlth. 2008), the employer filed a UR request as to Dr. LoDico’s treatments. The records were requested by the URO and Dr. LoDico’s office returned the records without a Verification Form as required by Section 127.459 of the Pa. Code. Since no Verification Form was included, the URO did not send Dr. LoDico’s records to the UR reviewer. Instead the UR reviewer issued a UR Determination finding Dr. LoDico’s treatments unreasonable and unnecessary because no records had been provided.
The claimant filed a petition for review of the UR Determination and the claimant introduced letters from Dr. LoDico wherein Dr. LoDico requested that the URO send a blank Verification Form so that the same could be signed and returned. The letter also suggested that the Verification Form had not been sent when the URO originally requested the records.
The WCJ reviewed the evidence and ordered that the UR request be re-assigned to a URO for a decision on the merits. The Appeal Board affirmed.
Commonwealth Court likewise affirmed, holding that a WCJ can determine if the URO properly requested the records from the doctor under review and the WCJ can decide if the doctor properly returned the records to the URO. The Court then reviewed the WCJ’s Decision and noted that the WCJ felt that there was a problem between the URO and Dr. LoDico as to whether or not the Verification Form was sent and whether or not Dr. LoDico contacted the URO to request the Form. The Court concluded that because the WCJ ultimately decided that the Verification Form was not received by Dr. LoDico when his records were requested, it was appropriate for the WCJ to order that the UR request a be re-assigned to a URO for a decision on the merits.
STATE EMPLOYEE NOT ENTITLED TO SERVICE CONNECTED DISABILITY SUPPLEMENT FROM STATE RETIREMENT SYSTEM, AFTER WORKERS’ COMPENSATION CASE SETTLED.
In Waters v. State Employees Retirement Board, No. 1885 C.D. 2007, the issue was the right of Ms. Waters to receive a service connected disability supplement under the State Employees Retirement Code.
Ms. Waters suffered a work injury on July 30, 1985 and she received disability benefits under the Workers’ Compensation Act. Under the Retirement Code, commonwealth employees who become unable to work are entitled to a disability annuity. Where the disability results from a work-related injury, the disability annuity is supplemented to ensure that the disability annuity equals 70% of the employee’s final average salary. The supplement is to continue as long as the employee is disabled under the Workers’ Compensation Act.
In spite of the injury in 1985, Ms. Waters eventually returned to work and was paid partial disability benefits under the Workers’ Compensation Act. Under Section 306(b)(1) of the Pennsylvania Workers’ Compensation Act, Ms. Waters received 500 weeks of partial disability benefits, which expired in July of 2002. Ms. Waters filed a reinstatement petition, but it was denied. Ms. Waters eventually entered into a C&R resolving her workers compensation claim
Ms. Waters then requested the disability supplement under the Retirement Code. The request was denied, with the State’s Retirement System suggesting that Ms. Waters was not entitled to the disability supplement, since she was no longer receiving workers’ compensation benefits.
Commonwealth Court agreed, holding that the Retirement Code clearly states that the disability supplement is only available to those receiving workers’ compensation benefits, so when Ms. Waters ceased receiving workers’ compensation benefits, she was not entitled to the service connected disability supplement.
SUPERIOR COURT
INSURER COULD ENTER JUDGMENT IN COURT OF COMMON PLEAS AGAINST CLAIMANT WHO REFUSED TO REIMBURSE INSURER FROM HIS THIRD PARTY SETTLEMENT
The workers’ compensation insurer in United Parcel Service of Liberty Mutual Insurance Company v. Mark Hohider, No. 1596 WDA 2007, filed a writ in the Court of Common Pleas of Westmoreland County requesting that a Judgment be entered against a workers’ compensation claimant. The claimant filed a motion to strike and it was granted by the Court of Common Pleas of Westmoreland County.
Even though the case was pending in the Court of Common Pleas of Westmoreland County, the case had its genesis in a workers’ compensation matter.
The claimant suffered a work injury in August of 1999 and he received workers’ compensation benefits. The claimant also filed a third party lawsuit for damages arising from the incident that caused the work injury.
The claimant received a $95,000.00 settlement from the third party lawsuit and the insurer filed a modification/suspension petition averring that the claimant should be required to disgorge an amount equal to the insurer’s lien.
The WCJ issued an order directing the claimant to disgorge to the insurer $67,222.23 in satisfaction of the insurer’s subrogation lien. Neither party filed an appeal to the Appeal Board.
Because the claimant did not reimburse the insurer, the insurer filed a writ with the Court of Common Pleas requesting that the Prothonotary enter Judgment in favor of the insurer and against the claimant based upon the WCJ’s Order. The claimant filed a motion to strike the Judgment which was granted. The insurer appealed to Superior Court.
Superior Court first looked to the procedures that would allow the insurer to enter a Judgment against a claimant. The Court looked to Section 428 of the Act, which indicates that when the insurer is in default in payment of compensation benefits for 30 days or more, the employee is entitled to file a certified copy of the Order approving the award with the Prothonotary of the Court of Common Pleas of any county, and the Prothonotary shall enter the entire balance as a Judgment against the employer/insurer. Superior Court then acknowledged that Section 428 does not provide statutory authority for an insurer to obtain a lien against a claimant.
Meanwhile, the insurer argued that Section 319 indicates that the insurer’s right of subrogation is absolute. The insurer contended that because its subrogation right is absolute, not allowing an insurer to enter Judgment in the Court of Common Pleas would render a WCJ’s order a nullity.
The Court agreed with the insurer that its subrogation right was absolute. The Court also agreed that unless that the insurer had the right to enter a Judgment against a claimant who refuses to pay, a WCJ’s order directing the claimant to pay, would become a nullity. Superior Court suggested that a Court of Common Pleas cannot undo what is already been done by a WCJ, so Superior Court held that the Westmoreland County Court of Common Pleas’ Order striking the Judgment must be reversed and the Judgment against the claimant must be entered on the Common Pleas docket.
UNREPORTED COMMONWEALTH COURT CASES
THE FOLLOWING COMMONWEALTH COURT CASES ARE UNREPORTED AND CANNOT BE RELIED UPON FOR ANY PURPOSES. HOWEVER, THE CASES ARE BEING SUMMARIZED, AS THEY MAY FORETELL HOW COMMONWEALTH COURT WOULD RULE ON THESE ISSUES SHOULD THE COURT ADDRESS THE ISSUES IN THE FUTURE.
EMPLOYER OBLIGATED TO PAY PENALTIES WHEN TPA DOES NOT PAY COMPENSATION WHEN DUE
In Fayette Transportation Services, Inc. v. W.C.A.B. (Reese), No. 1702 C.D. 2007, Fayette Transportation hired the Cura Group as its TPA. Fayette Transportation understood that Cura was to assume Fayette’s payroll, tax filing, benefit administration and insurance placement obligations. Cura did place workers’ compensation insurance for Fayette Transportation, but the policy expired on November 10, 2001. On December 19, 2001 the claimant sustained a low back injury. Cura itself began making compensation payments but the claimant eventually filed a penalty petition alleging that Fayette Transportation and Cura violated the Act by failing to timely pay indemnity and medical benefits. During the penalty proceedings, Cura filed for bankruptcy.
The first issue was whether the United States Bankruptcy Code allowed for a stay of the workers’ compensation proceedings. The Court noted that there is an automatic stay of judicial proceedings once bankruptcy is filed, but there are exceptions. The Court suggested that Section 362(b)(4) of the Bankruptcy Code protects a governmental unit’s ability to enforce its police or regulatory power. The Court suggested that the stay provision of Section 362 has been found not to apply to workers’ compensation proceedings. The Court then stated that even if Cura could somehow prove that it was entitled to a stay, the penalty proceeding could still proceed against Fayette Transportation.
The WCJ did award penalties against Fayette Transportation and the Appeal Board affirmed.
Fayette Transportation argued that because it had obtained insurance from Cura, it could not be subject to a penalty based on Cura’s failure to make payments in accordance with the Act. The Court noted that were Cura an insurance carrier, Fayette’s argument may have merit, but because Cura was not an insurance company, Fayette Transportation was not immune from paying penalties. The Court suggested that Fayette Transportation may have a claim against Cura, but the fact remained that an employer is obligated to obtain workers’ compensation insurance unless it is self-insured. Because ultimately it was determined that Fayette Transportation did not have workers’ compensation insurance, it was not immune from paying penalties.
NO PENALTIES WHEN OFFSET TAKEN BASED ON INFORMATION PROVIDED BY CLAIMANT BUT PENALTIES AWARDED WHEN CHECKS NOT ISSUED IN A TIMELY MANNER
In St. Lawrence Church and Risk Enterprise Management v. W.C.A.B. (Sulligan), No. 597 C.D. 2008, the claimant filed a penalty petition alleging that the employer violated the Act in several ways.
Claimant suffered an acknowledged work injury in 2000 and in September of 2005 the claimant returned an Employee’s Report of Benefits Form indicating that he was receiving Social Security Old Age Benefits. The insurer issued a Notice of Benefit Offset and began taking an offset in accordance with the Workers’ Compensation Act. Within a few months, the claimant realized that he had incorrectly informed the insurer that he was receiving Old Age Benefits. The insurer immediately stopped taking the offset and sent the claimant a check reimbursing him for the offset it had previously taken.
The claimant filed a penalty petition alleging that the insurer violated the Act by taking an illegal offset. The WCJ agreed and awarded 50% penalties. The Appeal Board affirmed.
Commonwealth Court reversed, finding that the insurer did not violate the Act by taking the offset for Old Age Benefits, because the claimant signed a Form indicating that he was receiving Old Age Benefits and after the claimant informed the insurer of the mistake, the insurer ceased taking the offset and issued claimant a check bringing him up-to-date. The Court concluded that this was not a violation of the Act and that WCJ erred in concluding otherwise.
Another issue addressed in Sulligan, was the timeliness of the claimant’s compensation checks. The claimant testified that he received his compensation checks on Tuesdays which had been his regular, pre-injury, payday, but subsequently he started receiving his compensation checks on Wednesdays, Thursdays or Fridays. The claimant testified that he paid some of his bills, trusting that his workers’ compensation checks would arrive on a particular day, and as a result of late compensation checks, he had bounced checks and incurred 7-8 overdraft fees. The claimant argued that the employer violated the Act by not paying his checks in a timely matter.
The Court looked to Section 308, which indicates that all compensation shall be payable in periodic installments, as the wages of the employee were payable before the injury. Because the claimant testified that he received his pre-injury paychecks on a bi-weekly basis, the Court held that the insurer was required to pay compensation bi-weekly. The Court also held that because the WCJ credited the claimant’s testimony that he did not always receive his compensation checks bi-weekly it was appropriate to award penalties for a violation of the Act.