Once a Notice of Temporary Compensation Payable-Medical Only is issued and converts to a Notice of Compensation Payable (medical only) can an employer file a Notice of Temporary Compensation for wage loss and then timely revoke the Notice of Temporary Compensation Payable without admitting liability?
This was the main issue before the Court in Aldridge v. WCAB (Kmart Corporation), decided January 26, 2015 and published April 26. In summary, the Court held that the Act does not prohibit the filing of a NTCP (medical only) and then issuing a NTCP for wage loss for injuries arising from the same date of injury. The carrier can then revoke the NTCP within the 90 day window without admitting liability.
The employee suffered contusion injuries to the left knee, left shoulder and left hand which were identified in the NTCP (medical only), filed May 2011. This notice converted to a NCP (medical only) for those injuries when the 90 day period ran without the employer filing the Notice Stopping Temporary Compensation (NSTC) and Notice of Compensation Denial (NCD). Therefore, the employer was responsible for medical bills related to the injuries to the left knee, left shoulder and left hand, contusion injuries.
Subsequently, the employee underwent shoulder surgery and the employer issued a second NTCP which checked off the medical-only block, but also indicated a weekly compensation rate. The employer, on the same day, issued a “corrected” NTCP (August 2011) which did not check the medical-only block and listed a weekly compensation rate for injuries described as a left labrum and bicep tear. The employer then issued a NSTC and a NCD within the 90 window, calculated from the date the employee first suffered a wage loss. The employee filed a claim petition and a penalty petition while the employer filed a termination petition. The claim petition for wage loss benefits was denied. The penalty petition was denied on the basis that the employer did not owe benefits for the left labrum and bicep tear. The termination petition was granted as of January 2012 for the injuries described in the NCP (medical only). The Workers’ Compensation Appeals Board (WCAB) affirmed the decision.
On appeal to the Commonwealth Court, the employee argued that once the employer filed the second NTCP for the same date of injury as the converted NTCP (medical only) it accepted liability for the labrum and bicep injuries and was estopped from denying liability for these injuries. The Court disagreed and noted that the employee did not begin to lose time until July 19, 2011, following her surgery and that the second NTCP paying wage loss was revoked within the 90 day window for the labrum and bicep tear with properly filed NSTC and NCD (denying the injuries were work related).
The Court also agreed with the WCAB that the Act does not contain language prohibiting the filing of a second NTCP for wage loss once a NTCP (medical only) has converted to a NCP (medical only). Therefore, the employer having properly revoked the second NTCP for wage loss due to the left labrum and bicep tear never accepted liability for these injuries. The Court affirmed the denial of the wage loss claim petition, the denial of the penalty petition as no violation of the Act occurred and the granting of the termination petition for the injuries accepted to the left knee, shoulder and hand (medical only).
Comment: Care should be taken if you decide to follow this employer’s example to insure that the revocation documents and the subsequent NTCP contain the same description of injuries.In this case the carrier used the description of injuries contained in the NTCP (medical only) in the revocation documents for the subsequent NTCP. The Court rejected the argument that the revocation documents did not address the labrum and bicep tear and therefore these injuries were accepted. The Court noted that the revocation documents were intended to refer to the same injuries as were described in the second NTCP and thus the revocation documents did not accept liability for the labrum and bicep tear.
Does the employee have to prove a separate and distinct injury or disability to be entitled to total disability and also specific loss?
Can employer take an offset for Social Security retirement benefits if the claimant is entitled to receive them before the date of injury?
These two issues were before the Court in Pocono Mountain School District and Inservco Insurance Services v. WCAB (Easterling), decided April 10, 2015.
The employee suffered a lumbosacral spine strain, left arm and left shoulder injures which were accepted by the employer but the employee then filed a review petition to add complex regional pain syndrome (CRPS) left upper extremity, left cubital tunnel syndrome and loss of use of the left hand. The employee also amended that petition to allege a head injury.The parties stipulated to that the CRPS and status post left ulnar release were part of the work injury, but not the loss of the left hand and the head injury. The employer then filed a modification petition seeking offset for receipt of Social Security benefits.
The Workers’ Compensation Judge (WCJ) denied the head injury but found that the employee suffered the loss of use of the left hand and was entitled to 335 weeks of benefits once the employee’s total disability from the CRPS and status post ulnar nerve release had resolved. The medical testimony accepted by the WCJ stated that the employee had no functional use of his left hand which involved contractures of his fingers and elbow causing the hand to be held up to the employee’s chest. The Court found this evidence supported the Judge’s decision.
In addition, the Court noted that the employee is entitled to both total disability benefits and specific loss benefits once the total disability resolves if there is a separate and distinct disability in addition to the specific loss. It is not required that there is a separate and distinct injury. In this case, the employee did suffer the loss of use of the left hand. In addition the employee’s CRPS and post ulnar nerve release were separate and distinct disabilities which entitled the employee to total disability benefits. The Court noted that the evidence of record supported the conclusion, that but for the employee’s loss of use of his left hand, he would still be disabled by the CRPS of his left upper extremity.
The WCJ denied the employer’s request to offset 50 percent of the employee’s Social Security retirement benefits. The Court affirmed that the employee was eligible to receive these benefits before the date of injury even though he didn’t receive his first check until after the date of injury. Case law in Pennsylvania has determined that once an employee has applied for SS retirement benefits on or before reaching age 62 he is entitled to the benefits when he turns 62 even if the initial benefit check is not received until after the date of injury.
For more information, please contact Peter J. Weber at pweber@wglaw.com or 215.972.7901.