Benefits Not Payable by UEGF Until Notice Given by Injured Worker
Every employer in Pennsylvania must carry PA workers’ compensation insurance (unless exempted for some reason, such as qualifying to insure itself). The failure to carry workers’ comp insurance is a criminal act, one punishable by a fine and/or incarceration. Unfortunately, not all employers in PA obey the law. As we have discussed over the years, PA has a fund for injured workers when no insurance is present, called the Uninsured Employers Guaranty Fund (UEGF).
To initiate a case against the UEGF, an injured worker must notify the UEGF within 45 days of learning that his or her employer failed to carry workers’ compensation insurance. The Commonwealth Court of Pennsylvania recently had to address when compensation becomes payable, and whether “compensation” in this context, when notice is provided to the UEGF after the 45 days, includes payment of medical expenses.
In this matter, Commonwealth of Pennsylvania, Department of Labor and Industry, Uninsured Employers Guaranty Fund v. Workers’ Compensation Appeal Board (Kendrick and Timberline Tree & Landscaping LLC), the employee suffered an orbital fracture, traumatic brain injury and postconcussion syndrome on November 7, 2011. A Claim Petition was filed against the employer. In that litigation, at a hearing on December 21, 2011, the injured worker was advised that the employer had no workers’ compensation insurance in PA. A Notice of Claim was not filed against the UEGF until February 8, 2012 (more than 45 days after the injured worker knew there was no insurance). All of these facts were stipulated between the parties. A Claim Petition against the UEGF was filed; the only issue for the Workers’ Compensation Judge (WCJ) to decide was when the compensation was to start (the date of the injury, or the date the UEGF was notified).
In his decision, the WCJ concluded that, based on the liberal nature of the Pennsylvania Workers’ Compensation Act, both wage loss and medical benefits should commence as of the date of the injury. On appeal, the Workers’ Compensation Appeal Board (WCAB) agreed that medical benefits began on the date of the injury, but reversed as far as wage loss benefits. The WCAB held that the wage loss benefits did not commence until the UEGF was properly notified.
While this matter was on appeal to the Commonwealth Court, the Court issued a decision in Jose Osorio Lozado v. Workers’ Compensation Appeal Board (Dependable Concrete Work and Uninsured Employers Guaranty Fund), holding that an injured worker’s failure to notify the UEGF within 45 days does not completely bar his or her claim, but just means no compensation is payable until notice is given to the UEGF. [Note that the WCAB requested permission to reconsider this case, in light of Lozado, but was denied].
So, the issue for the Court in this matter became whether “compensation” means both wage loss and medical benefits. The Court looked back at its decision in Lozado, where it had said, “those that do not meet the statutory deadline are only entitled to compensation for medical treatment or lost wages incurred from the date notice was provided.” Despite what sounds like a conclusion already made, the Court examined whether medical benefits are “compensation” in this context.
In a decision that could be expected, the Court found that what it had said in Lozado was correct. Neither wage loss benefits nor medical treatment are payable by the UEGF until proper notice is given, where the injured worker fails to supply the notice within 45 days of knowing the employer failed to carry PA workers’ compensation insurance. The decision of the WCAB was reversed on this point.