Commc'n Test Design v. Workers' Comp. Appeal Bd., No. 1196 C.D. 2019
| Decision Date | 22 April 2020 |
| Docket Number | No. 1196 C.D. 2019 |
| Parties | COMMUNICATION TEST DESIGN, Petitioner v. WORKERS’ COMPENSATION APPEAL BOARD (Simpson), Respondent |
| Court | Pennsylvania Commonwealth Court |
Harsinie W. Panditaratne, Philadelphia, for Petitioner.
Alfred J. Carlson, Philadelphia, for Respondent.
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION BY JUDGE COVEY
Communication Test Design (Employer) petitions this Court for review of the Workers’ Compensation (WC) Appeal Board's (Board) August 2, 2019 order affirming the Workers’ Compensation Judge's (WCJ) decision denying Herbert L. Simpson's (Claimant) Claim Petition, granting Claimant's Reinstatement and Penalty Petitions, and dismissing Employer's Suspension Petition as moot; and reversing the WCJ's decision dismissing Employer's Termination Petition as moot and modifying that decision to reflect a termination of Claimant's WC benefits as of February 23, 2017. Employer presents two issues for this Court's review: (1) whether Claimant had to prove ongoing disability and entitlement to temporary total disability (TTD) benefits to prevail on his Reinstatement and Penalty Petitions; and (2) whether Employer is required to pay unreasonable contest fees when Claimant is not entitled to TTD benefits.
On December 5, 2016, Claimant allegedly sustained work injuries during the course and scope of his employment with Employer. On December 20, 2016, Employer issued a Medical Only Notice of Temporary Compensation Payable (NTCP), accepting liability for medical bills for the alleged work injury, described as an eye laceration. On January 4, 2017, Employer issued an amended NTCP, under which it began paying Claimant disability benefits. On February 7, 2017, Employer issued a Notice Stopping Temporary Compensation Payable (NSTC), indicating that it ceased paying compensation as of January 19, 2017. Attached to the NSTC was a Notice of Compensation Denial (NCD), denying that Claimant sustained a work injury.
On February 13, 2017, Claimant filed a Claim Petition, alleging he sustained work injuries in the nature of a concussion, post-concussion syndrome
, right eye laceration, right shoulder sprain /strain and internal derangement of the right shoulder on December 5, 2016. Claimant sought TTD from the date of injury and ongoing, reimbursement for associated medical services, litigation costs, and unreasonable contest attorney's fees. On April 7, 2017, Claimant filed the Reinstatement and Penalty Petitions, claiming that Employer violated the Pennsylvania Workers’ Compensation Act (Act).1 Specifically, Claimant asserted that Employer failed to issue an NSTC within five days after the last payment of temporary compensation. Claimant requested penalties at the rate of 50% on all past due compensation. Claimant also sought assessment of unreasonable contest attorney's fees pursuant to Section 440 of the Act, 77 P.S. § 996.2 Claimant further asked for reinstatement of total disability benefits based on Employer's misuse of documents.
On April 18, 2017, Employer filed the Termination Petition averring that Claimant fully recovered from his alleged work injuries as of February 23, 2017. Employer also filed the Suspension Petition on May 3, 2017, asserting that Claimant responded in bad faith to a specific job offer. The WCJ held hearings on March 20, May 8, September 13 and November 6, 2017. On May 4, 2018, the WCJ denied Claimant's Claim Petition, granted Claimant's Reinstatement and Penalty Petitions, and dismissed Employer's Termination and Suspension Petitions as moot. The WCJ determined that Claimant's work injury was limited to a right eye laceration, which did not result in disability.
However, the WCJ ruled that Claimant was entitled to a reinstatement of benefits based on the conversion of the amended NTCP to a Notice of Compensation Payable (NCP) by operation of law, because Employer failed to timely file an NSTC and NCD. Thus, the WCJ granted the Reinstatement Petition. The WCJ also awarded a 10% penalty because Employer violated the Act by failing to timely file the NSTC and NCD and by unilaterally ceasing payment. The WCJ further determined that Employer's contest as to the Reinstatement Petition was unreasonable and awarded $8,140.00 in unreasonable contest fees. Finally, the WCJ held that Claimant failed to establish any injury other than an eye laceration and terminated Claimant's WC benefits as of the date of decision. The WCJ dismissed as moot Employer's Suspension and Termination Petitions, concluding that Claimant failed to meet his burden of establishing that his eye laceration resulted in disability or that he had any other compensable work injuries. Claimant and Employer appealed to the Board.
On August 2, 2019, the Board affirmed the WCJ's decision denying Claimant's Claim Petition, granting Claimant's Reinstatement and Penalty Petitions, and dismissing Employer's Suspension Petitions as moot; reversed the WCJ's decision dismissing Employer's Termination Petition as moot; and modified the WCJ's decision to reflect a termination of benefits as of February 23, 2017. Employer appealed to this Court.3
Employer first argues that the WCJ erred by granting Claimant's Reinstatement and Penalty Petitions. Claimant rejoins that, pursuant to Section 406.1 of the Act, 77 P.S. § 717.1 (),4 his WC benefits were reinstated as a matter of law because Employer did not file its NSTC within five days of the last WC payment.
Initially, the Pennsylvania Supreme Court has explained:
A claimant seeking reinstatement of suspended benefits must prove that his or her earning power is once again adversely affected by his or her disability,[5 ] and that such disability is a continuation of that which arose from his or her original claim. The claimant need not re-prove that the disability resulted from a work-related injury during his or her original employment . Once the claimant meets this burden, the burden then shifts to the party opposing the reinstatement petition. In order to prevail, the opposing party must show that the claimant's loss in earnings is not caused by the disability arising from the work-related injury . This burden may be met by showing that the claimant's loss of earnings is, in fact, caused by the claimant's bad faith rejection of available work within the relevant required medical restrictions or by some circumstance barring receipt of benefits that is specifically described under provisions of the Act or in this Court's decisional law.
Bufford v. Workers’ Comp. Appeal Bd. (N. Am. Telecom) , 606 Pa. 621, 2 A.3d 548, 558 (2010) (emphasis added).
However, "in certain situations[,] a claimant who seeks a reinstatement of benefits must establish disability through the pendency of the reinstatement petition." Kranak v. Workers’ Comp. Appeal Bd. (U.S. Airways) ( ,6 slip op. at 14, 2014 WL 897078. "Here, Claimant never established disability prior to the filing of the [R]einstatement [P]etition." Id. (emphasis added). Thus, "[i]t was Claimant's burden to establish his entitlement to a reinstatement of benefits." Id.
In his Penalty/Reinstatement Petition, Claimant alleged:
[Employer] has failed to issue a[n] [NSTC] no later than five (5) days after the last payment of temporary compensation. Claimant requests penalties at the rate of fifty percent (50%) on all past due compensation. Claimant requests assessment of unreasonable contest attorney's fees pursuant to [Section] 440 of the Act. Claimant requests reinstatement of total disability benefits based on the misuse of documents .
Reproduced Record (R.R.) at 20a (emphasis added).
The WCJ determined:
Because the last day that compensation was paid was January 19, 2017, the [NSTC] had to be filed by January 24, 2017. The [NSTC] was not filed until February 7, 2017. Thus, the [NTCP ] accepting Claimant's injury as a laceration to his eye with disability effective December 5, 2016 converted to a [n ] [NCP ] by operation of law .
WCJ Dec. at 4, Finding of Fact (FOF) 12 (emphasis added).
First, although the NSTC stated that "payment of compensation ... [was] being stopped as of 01-19-2017[,]" there was no testimony as to what period that payment covered, see Thomas Lindstrom Co., Inc. v. Workers’ Comp. Appeal Bd. (Braun) , 992 A.2d 961 (Pa. Cmwlth. 2010), nor is the date of the last payment identified in the record, see Jones v. Workers’ Comp. Appeal Bd. (Villanova Univ.) , 164 A.3d 542 (Pa. Cmwlth. 2017) ; thus, there is no evidence upon which the WCJ could base his determination that the NSTC was not filed within five days of the last payment. "No penalty may be imposed ... absent proof of a violation of the Act or its regulations, and a violation of the Act must appear in the record in order for a penalty to be appropriate." Dow v. Workers’ Comp. Appeal Bd. (Household Fin. Co.) , 768 A.2d 1221, 1226 (Pa. Cmwlth. 2001) (emphasis added; citation omitted). Because substantial evidence does not support the WCJ's conclusion that Employer violated the Act by failing to file the NSTC within five days of the last payment, the WCJ erred by granting the Penalty Petition.
Second, and more importantly, Section 406.1 of the Act does not sanction conversion of an NTCP to an NCP for failure to file an NSTC within five days of stopping payment. Rather, Section 406.1(d)(5) of the Act mandates:
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Bechler v. Kmart Corp. (Workers' Comp. Appeal Board)
...within five days of stopping payment." Commc'n Test Design v. Workers' Comp. Appeal Bd. (Simpson), 229 A.3d 994, 999 (Pa. Cmwlth. 2020). In Simpson, we observed "[t]here is no remedy stated therein for failure to comply with Section 406.1(d)(5)(i) of the Act. There is a remedy, however, for......