When the First Day of Disability is not the First Day of Disability – Welcome to the Wacky World of PA Workers’ Comp

In litigating a workers’ compensation case in Pennsylvania, we fight about many aspects of a case.  Certainly, we have had disputes over when an injured worker was actually “disabled” from his or her job. As highlighted in a recent decision by the Commonwealth Court of PA, though, sometimes the exact date on which disability begins can have great consequence.

In Valley Stairs and Rails v. Workers’ Compensation Appeal Board (Parsons), the injured worker hurt his back while performing his job, and was taken to the hospital by ambulance, on Friday, March 27, 2015.  The employer paid him for the day of the injury, on the paystub calling it “COMP TM.”

On April 13, 2015, the workers’ compensation insurance carrier filed a Notice of Temporary Compensation Payable (NTCP).  As we have previously discussed in our blog, this document allows an insurance carrier to begin to pay workers’ compensation benefits while still investigating a claim.  The NTCP is valid for a maximum of 90 days (if it is not revoked within those 90 days, it converts into a full Notice of Compensation Payable (NCP), which cannot be revoked).  If the NTCP is revoked within those 90 days, the claim can be denied in full.

Here, workers’ comp benefits began to be paid as of March 30, 2015, since the date of the injury, March 27, 2015, was paid through the injured worker’s employer.  A revocation of the NTCP, and a Notice of Denial (NCD), were filed with the Pennsylvania Bureau of Workers’ Compensation (Bureau) on June 28, 2015.  A check of the calendar shows that this would be more than 90 days, if the 90 days began to run on the day of the injury.

Thus, the central issue to this case was what triggered the 90 days to begin.  The short answer is “disability,” though that does not provide the answer so simply.  When the benefits stopped, the injured worker filed a Petition for Penalties.  After litigating the matter, the Workers’ Compensation Judge (WCJ) denied the Petition.  The WCJ found that “disability” is defined as “wage loss.”  Since the injured worker was paid for the date of the injury by his employer, “disability” did not begin until that Monday, March 30, 2015, making the revocation and denial timely.

On appeal, the Workers’ Compensation Appeal Board (WCAB) reversed the decision of the WCJ.  Logically, the WCAB found that the 90 days begin on the first day the injured worker was entitled to disability benefits.  It is irrelevant whether the employer paid the injured worker wages for that day or not in making this determination.  Since the disability began March 27, 2015, the revocation was untimely.  As such, the workers’ compensation insurance company violated the Pennsylvania Workers’ Compensation Act (Act) by stopping the payment of workers’ comp benefits.  The Petition for Penalties should have been granted.

On further appeal, the Commonwealth Court of Pennsylvania reversed the WCAB, and said the WCJ was correct to deny the Petition for Penalties. Initially, the Court agreed with the WCAB that “the triggering date for the 90 days is the date when a claimant becomes entitled to compensation, irrespective of whether he has received benefits for that day.”

However, the Court said this does not end the discussion.  The question here is whether the date of the injury still counts as the date disability began, if the injured worker is paid regular wages for that day.  Finding no answer in case law, or the Act, the Court went to regulations promulgated by the Bureau.  Unfortunately for the injured worker in this case, there is a Bureau regulation directly on point:

“In computing the time when the disability becomes compensable, the day the injured employee is unable to continue at work by reason of the injury shall be counted as the first day of disability in the 7 day waiting period.  If the injured employee is paid full wages for the day, shift or turn on which the injury occurred, the following day shall be counted as the first day of disability.”

Based on this regulation, the Court held, “Hence, we hold that disability is considered to commence on the day following the injury when a claimant is paid his full wages for the day, shift, or turn on which the injury occurred.”  Therefore, the first day of disability WOULD have been Friday, March 27, 2015, but, since the injured worker was paid by his employer for that day, and he does not work weekends, his first day of disability was Monday, March 30, 2015.  This makes the revocation and NCD timely.  The WCJ was correct to deny the Petition for Penalties.