PA Work Comp benefits paid pursuant to A Notice of Temporary Compensation Payable may be changed via a timely Medical Only NCP document

 

Changing the benefit status of a PA Work Comp injured worker, who is compensated via a Notice of Temporary Compensation Payable (NTCP) LIBC-501 document is now less cumbersome.

An Employer may file a “Medical Only” Notice of Compensation Payable (MO-NCP) to change the benefit status of the injured worker, when the MO- NCP  is filed within the ninety-day temporary compensation payable period. In this circumstance, the Employer is not required to also file a Notice Stopping Temporary Compensation Payable (NSTCP) and a Notice of Compensation Denial (NOCP). This case was successfully argued by Chartwell Law founding partner Andrew Greenberg.

See: Raymour & Flanigan v. WCAB (Obeid);  No. 371 C.D. 2020 Filed: August 16, 2021.

The Commonwealth Court reversed a decision of the PA Workers’ Compensation Appeal Board, noting this was an issue of first impression. The Board decision reinstated ongoing indemnity wage loss benefits payable to Claimant, back to the date the Employer stopped those indemnity payments  pursuant to the filing of the MO-NCP. The Board concluded the Employer violated the Act as the NTCP “converted” to a NCP after 90 days - by operation of law – in the absence of the filing of the Notice Stopping Benefits and Notice of Compensation Denial.

Factual & Procedural Background

This litigation commenced when the injured worked file a Petition for Penalties and requested reinstatement of indemnity wage loss benefits. Initially, after the report of a work-related injury,  the Employer commenced work comp benefits to the injured worker via NTCP an injury described as inflammation of her coccyx/sacrum . Sixteen days later the Employer issued a MO-NCP.

The WCJ found that under Section 121.17(d) of the workers’ compensation regulations, 34 Pa. Code § 121.17(d), there was no requirement to file a Notice Stopping Temporary Compensation Payable if, during the 90 day temporary compensation payable period, the employer decided to issue a notice of compensation payable The WCJ  concluded that Claimant failed to prove that Employer violated the Act and dismissed the penalty petition.

The Appeal Board concluded that under its interpretation of Section 406.1(d)(5)-(6) of the Act and Section 121.17(d) of the regulations, that the Employer had violated the Act and the Board ordered reinstatement of indemnity benefits as of the date as indemnity payments were stopped and further ordered continuing benefits.  Employer appealed this ruling.

The Commonwealth Court reviewed the statutory language at Section 406.1, which addresses the requirements for commencement of work comp benefits via NCP or NTCP. The Court noted that an employer may initiate compensation payments without prejudice and without admitting liability pursuant to a notice of temporary compensation payable.

If an employer decides to stop making payments pursuant to a NTCP the employer must provide notice to the injured worker via, a form prescribed by the Bureau.

If the employer does not file a notice within the ninety-day period during which temporary compensation is paid, then the employer is deemed to have admitted liability and the notice of temporary compensation payable is converted to a notice of compensation payable.

Reasoning & Holding

The Commonwealth Court reviewed Section 121.17(d) of the Bureau’s regulations. This regulation states that if temporary payments are stopped, an employer must do one of the following:

-          file both a notice stopping temporary compensation, Form LIBC-502, and a notice of compensation denial, Form LIBC-496;

or

-          file a notice of compensation payable, Form LIBC-495;

or

-           file an agreement for compensation for disability or permanent injury, Form LIBC-336

In the instant case – the Employer filed a version of the NCP the “Medical Only” version. The NCP form LIBC-495 included a check box – which was checked by the Employer – stating “Check only if compensation for medical treatment (medical only, no loss of wages) will be paid subject to the Act.” The Court concluded -  by filing a NCP, albeit a “Medical Only” the Employer clearly complied with the regulation. The NCP was sufficient notice to the injured worker that their work comp benefit status had changed.

Employer arguments relied upon the prior decisions at City of Philadelphia v. WCAB (Brown) and Waldameer Park v. WCAB (Morrison) for the proposition that the acknowledgement of compensability, accomplished by filing a Medical Only NCP, is sufficient to meet the Employer’s obligations under Section 406.1. The Court agreed.

Practice Pointers & Recommendations

1.      A work-related injury may be recognized via: a Notice of Compensation Payable LIBC-495; A Notice of Temporary Compensation Payable LIBC-501; an Agreement for Compensation for Disability of Permanent Injury LIBC- 336.

The NTCP provides the Employer and Insurer with a period of 90 days for review and possible revocation.

2.      A NTCP may be revised and/or corrected via an Amended NTCP during the 90 day temporary compensation benefit period.

3.      A NCP may be “amended” to expand the description of injury and/or to increase the benefit rate.

4.      Consistent with this Commonwealth Court decision – a NTCP may be followed by a Medical Only NCP, to change the benefit status of an injured worker from indemnity/medical liability to medical only liability.

5.      A NTCP may be followed by a Notice Stopping Temporary Compensation Payable LIBC-502 and a Notice of Compensation Denial LIBC-496 – IF the Employer and Insurer wish to totally deny liability for the alleged work-related injury.

6.      As the Workers’ Compensation Judge may assess attorney fees for an unreasonable contest of the claim – one must be judicious when making the claim acceptance/denial decision.

As always … when you have questions regarding the proper LIBC document to be issued in a specific factual situation … contact your workers compensation attorney to discuss your options. As a matter of strategy, one form may provide more appropriate handling options that you wish to pursue.