Varghese v. Workers

Docket Nº:28 CD 2006
Party Name:Varghese v. Workers
Case Date:May 12, 2006
Court:Court of Appeals of Pennsylvania
 
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Pascaria Varghese, Petitioner

v.

Workers’ Compensation Appeal Board (Ridge Crest Nursing Home, Consolidated Risk Services), Respondents

No. 28 C.D. 2006

Court of Appeals of Pennsylvania

May 12, 2006.

       Submitted: March 24, 2006.

       BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES R. KELLEY, Senior Judge

       OPINION

       PELLEGRINI, JUDGE

       Pascaria Varghese (Claimant) appeals from an order of the Workers’ Compensation Appeal Board (Board) affirming the Workers’ Compensation Judge’s (WCJ) denial of her penalty petition brought against Ridge Crest Nursing Home (Employer) due to its failure to pay a workers’ compensation award within 30 days of a denial of its application for supersedeas by the Board, as well as suspending benefits from January 2, 2004, because she failed to fill out the “wage block” on the LIBC-760 form sent to her for completion.

       On January 2, 1999, Claimant was injured while working for Employer, and a notice of compensation payable was issued. Subsequently, Employer filed a termination petition and Claimant filed a penalty petition, both of which were granted, and both parties appealed to the Board. On December 16, 2003, the Board affirmed the imposition of penalties, but reversed the termination of Claimant’s benefits.

       Employer timely filed an application for supersedeas, which was denied by the Board on February 18, 2004. After an appeal was taken to this Court, Employer filed an application for supersedeas with us which was denied on March 26, 2004. On April 23, 2004, 28 days after the denial of its application for supersedeas by this Court, Employer paid Claimant $31,478.641 which represented the amount owed pursuant to the Board’s December 16, 2003 order.

       Following entry of the Board’s reversal of the termination of benefits, Employer sent Claimant, as authorized by Section 311.1 of the Workers’ Compensation Act (Act), 77 P.S. §631.1,2 among other forms, an LIBC-760 form “Employee Verification of Employment, Self-Employment, or Change in Physical Condition.” Claimant’s counsel, by correspondence dated January 2, 2004, returned the LIBC-760 form to Employer verifying that Claimant was employed and working with pain and using pain medication that was prescribed by her doctor, but did not indicate the amount of wages that she earned. On February 9, 2004, Employer filed a “Notice of Suspension for Failure to Return Form LIBC-760” which stated that Claimant’s benefits were automatically suspended as of January 2, 2004, for failure to return the completed LIBC-760 form. On March 9, 2004, Claimant’s counsel corresponded with Employer indicating that he was attaching Claimant’s two-week pay slips from her current employer for the periods ending December 20, 2003, and January 31, 2004. Apparently when Employer received this information, benefits resumed, although Claimant alleges in her brief that the suspension has not been formally lifted.

       Claimant then filed a petition3 seeking penalties and unreasonable contest attorney’s fees alleging that Employer violated the Act by (1) failing to pay benefits within 30 days after the Board reversed the termination of her benefits in violation of Section 428 of the Act, 77 P.S. §921, and (2) illegally suspending her benefits under Section 311.1 of the Act, because her failure to fill in the “wage” block on her LIBC-760 form indicating wages was insufficient to invoke an automatic suspension of benefits.

       The WCJ denied Claimant’s penalty petition on both grounds. As to the penalty sought for failing to make payment within 30 days, the WCJ found that Employer’s obligation to pay the back compensation was stayed while its supersedeas requests were pending both before the Board and this Court. Because Employer paid Claimant back compensation on April 23, 2004, within 30 days of this Court’s March 26, 2004 denial of supersedeas, the WCJ denied the penalty. As to the penalty sought due to Employer’s alleged improper suspension of benefits because the LIBC-760 form was incomplete, the WCJ held that Employer properly suspended benefits because Claimant provided wage records outside the 30-day verification period as required by Section 311.1 of the Act. Claimant appealed to the Board, which affirmed, and this appeal followed.4

       Recognizing that as a result of Snizaski v. Workers’ Compensation Appeal Board (Rox Coal Company), 847 A.2d 139 (Pa. Cmwlth. 2004), aff’d, ___ Pa. ___, 891 A.2d 1267 (2006), an employer now has a “safe harbor” from penalties while a supersedeas request is before the Board, Claimant contends that the WCJ and Board erred in denying her penalty petition based on the mistaken belief that Employer enjoys the same “safe harbor” while a supersedeas request is pending before this Court. She argues that based on this Court’s ruling in Candito v. Workers’ Compensation Appeal Board (City of Philadelphia), 785 A.2d 1106 (Pa. Cmwlth. 2001), if an employer’s request for a supersedeas is denied, penalties can be imposed due to the failure to make payment of compensation within 30 days of the Board’s order. We agree.

       Section 413(b) of the Act, 77 P.S. §774(b),5 imposes on the employer the responsibility to request a supersedeas during the appeal process or to make compensation payments, and the mere filing of a supersedeas request does not stay an employer’s obligation to pay. In Snizaski, we and our Supreme Court held that the Board’s regulations6 effectively acted to temporarily grant a supersedeas request, thus removing the employer’s obligation to pay until the Board could provide a final resolution and making the award of penalties for non-payment of compensation inappropriate. In Candito, we held that it was not an abuse of discretion not to award penalties for non-payment of compensation while supersedeas was pending before this...

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