PA Workers’ Comp Benefits Suspended Before NCP issued
**Update – This opinion was vacated (withdrawn) by the Commonwealth Court of Pennsylvania on February 24, 2011. The en banc (all of the Judges) Court will review the case and issue a new decision**
Under the Pennsylvania Workers’ Compensation Act, an employer or, more likely, workers’ compensation insurance carrier, has 21 days to accept or deny a workers’ comp claim in PA. An acceptance can be accomplished by issuing a Notice of Compensation Payable (NCP), Notice of Temporary Compensation Payable (TNCP) or an Agreement for Compensation. A rejection of a claim requires that a Notice of Denial (NCD) be filed (there are, of course, nuances and exceptions, but this is generally the case).
The Supreme Court of Pennsylvania held back in 1983 (Beissel v. Workers’ Compensation Appeal Board (John Wanamaker, Inc.)) that, to obtain a termination of workers’ comp benefits, the workers’ compensation insurance carrier must prove there was a change of condition after the NCP was issued. But, what if an injured worker recovers before an NCP can be issued?
This very issue was faced by the Commonwealth Court of PA in City of Philadelphia v. Workers’ Compensation Appeal Board (Butler). Here, the claimant was involved in a motor vehicle accident while doing her job. A doctor pronounced her fully recovered from her work injury on October 19, 1995. A job offer was made shortly thereafter. On November 7, 1995, the City of Philadelphia issued an NCP, accepting the claim.
Subsequently, the City of Philadelphia filed a Petition for Suspension and Termination, as of October 19, 1995. The Workers’ Compensation Judge (WCJ) found the doctor offered by the City of Philadelphia credible, and granted the Petition for Termination. On appeal, the Workers’ Compensation Appeal Board (WCAB) affirmed.
The Commonwealth Court of PA, however, reversed, holding that, under Beissel, the Termination Petition could not be granted, because there was no change in condition shown after the date of the NCP. The Court remanded (sent back to the WCJ) for a decision on the Suspension Petition.
After the WCJ granted the Suspension Petition on the remand, and it was affirmed by the WCAB, the Court again considered the issue, this time regarding the Suspension Petition. This time, the Court found that the date an NCP is issued does not bar a Suspension or Termination as of any certain date. Instead, the key is whether the Suspension or Termination seeks to dispute some aspect of the NCP. Since the Suspension here did not dispute any aspect of the NCP, the WCJ properly granted the Suspension.
As attorneys who represent injured workers in PA, we have trouble reconciling the two decisions by the Commonwealth Court in this matter. While the Court did not vacate its initial decision, the reasoning of the second decision completely undermines the basis of the first. It remains unclear why the Suspension in Butler would be granted, but the Termination would not. As we say so frequently, we, as attorneys, ask for nothing more than consistency and reliability in our judiciary. Cases like this make trying cases, and advising our clients, especially difficult.